Robin v. Espo Eng'g Corp.

• Decision Date: 13 January 2000
• Docket Number: No. 98-3909,98-3909
• Citation: 200 F.3d 1081
• Parties: (7th Cir. 2000) MARTIN I. ROBIN, Plaintiff-Appellant, v. ESPO ENGINEERING CORPORATION, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1081

200 F.3d 1081 (7th Cir. 2000)

MARTIN I. ROBIN, Plaintiff-Appellant, v. ESPO ENGINEERING CORPORATION, Defendant-Appellee.

No. 98-3909

In the United States Court of Appeals For the Seventh Circuit

Argued May 11, 1999

Decided January 13, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 5577--Ruben Castillo, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before COFFEY, RIPPLE and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

Plaintiff Martin I. Robin ("Robin") filed charges of age, religion and disability discrimination against his former employer, Espo Engineering Corporation ("Espo") under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. sec. 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et seq., respectively. After receiving a right to sue letter from the Equal Employment Opportunity Commission ("EEOC"), Plaintiff filed suit in federal court on August 7, 1997. After discovery, the defendant filed a motion for summary judgment and the district court granted the motion on October 16, 1998. The plaintiff appealed. We AFFIRM.

I. BACKGROUND

Espo is owned and run by Eugene Esposito, Sr. ("Esposito Sr."), CEO and majority owner, and his son, Eugene Esposito, Jr. ("Esposito Jr."). Engaged in the business of leasing temporary technical personnel, Espo has approximately 250 employees. In 1985, Esposito Sr. hired Robin, who is Jewish and was 50 years of age at the time, as an account executive. Espo account executives are basically salespeople and are required to solicit from an assigned client list of 100 businesses. While Robin was employed at Espo, account executives who had been employed for more than two years were considered "senior" and had an annual sales quota of one million dollars; account executives employed less than two years were considered "junior." From 1987 until his discharge, Robin was classified as a senior account executive.

Defendant acknowledges that Robin's sales performance from 1985 to 1992 was more than satisfactory. In fact, Robin ranked first in sales production for 1989, 1990 and 1992 with $1,446,503.00, $1,432,656.00 and $1,389,197.00 in sales, respectively. In 1993, Robin's sales dropped below one million dollars to $763,727.00 due to the loss of one of his major clients to competitive bidding, dropping him to last place among senior account executives. As a result, Robin received a negative performance review from Esposito Sr., which criticized his disappointing sales figures. The following year, Robin increased his sales to $1,039,468.00 and did not receive a performance review even though his sales figures remained last among senior account executives.

In July 1995, Robin informed Esposito Sr. that he had been diagnosed with colon cancer and would be off work for a period of time recuperating from surgery. On July 28, 1995, Robin underwent surgery followed by chemotherapy treatment, necessitating his absence from work (with salary and commissions) for approximately four weeks until September 1995. Beginning that month and continuing for one year, Robin left work early once a week for chemotherapy treatment. Despite his absence and treatment, by the end of 1995, Robin had achieved $1,076,920.00 in sales, an amount slightly greater than the previous year but considerably less than his performance in 1989, 1990 and 1992.

On December 29, 1995, Esposito Sr. met with Robin and said, "Marty, you're not the same man you were six months ago," and offered Robin a paid leave of absence until September 1996, the anticipated completion of his chemotherapy. Under Esposito Sr.'s leave offer, Robin would have received full wages and benefits while on leave; however, his return to Espo as an account executive would depend on whether Esposito Sr. considered him 100% capable of performing his duties. Under the terms of the proposed leave, upon his return, Robin would be entitled to receive full commission on only 16 specified "old" accounts, while commission from his remaining 84 accounts would be "negotiated." Further, he would not be entitled to a commission on any account that produced new business during his absence. Robin asserts that he viewed Esposito Sr.'s leave offer as a veiled attempt to terminate his employment and turned it down. In a memo dated January 17, 1996, Robin wrote, "I am presently fully qualified to continue my duties with Espo Engineering as a capable and productive 'Account Executive.'" Later that month, Robin received his "1995 Annual Review," revealing that Robin placed last among all account executives, junior and senior, in the number of in-person calls made, number of customers visited, percentage of client list solicited, number of new customers and number of sales closed. The 1995 review, signed by Harry Lenza ("Lenza"), vice-president of sales, as the preparer of Robin's review and Esposito Sr., as approving the review, also indicated that even though Robin placed fifth out of seven in sales volume, the only salespersons he out-performed were two junior account executives with only one year of experience. The review further cautioned Robin that if he lost any one large account, his sales would be inadequate and thus concluded, "This is a very poor performance from a Senior Account Executive. You barely met the minimum requirement in a great market."

Robin's 1995 review also proposed a number of solutions: make more personal sales calls; cut lunches back to one per week, eliminate tardiness and be ready to start at 8 A.M.; stop long non- business related conversations with co-workers; and because "[i]n 1992 you sold 1.4 million, in 1996 we expect a minimum of 1.5 million." Although phrased more positively, the 1995 annual reviews for other senior account executives also contained sales expectations: Espo expected that Hugh Dunbar increase his sales to $3.2 million, Tom Reicher and Kurt Mills top two million and Steve Clodfelter, a first-year account executive, "do a million and a quarter."

During the first three quarters of 1996, Robin's sales were last among senior account executives and on pace to fall well below his $1.5 million sales goal. By the end of the third quarter, Robin had $572,943.00 in sales while the other three senior account executives each had sold in excess of $1.5 million. On September 27, 1996, Esposito Sr. met with Robin to offer a buy- out of his employment contract in exchange for a waiver of any legal claims against Espo. Robin refused and Esposito fired him, justifying the discharge on Robin's poor sales performance and the virtual impossibility that he would be able to meet the $1.5 million sales goal set out in his 1995 annual review.

The plaintiff claims that Esposito Sr. and Esposito Jr. made various discriminatory remarks toward him during his employment. Sometime during 1994, Robin contends that Esposito Sr. referred to him as "getting too old" and an "old S.O.B." Robin also alleges that when he was undergoing chemotherapy treatments in 1995, Esposito Jr. stated to another employee, "We cannot just let him [Robin] go or we will get in trouble." Further, Robin claims that in 1996, Esposito Sr. told an employee that Espo could not get rid of Robin because he was sick.

On January 6, 1997, Robin filed a charge against Espo with the EEOC claiming that he was discriminated against on account of his age, religion and disability when he was discharged. Upon the issuance of a right to sue letter, Robin filed his action in federal court. Following discovery, Espo filed a motion for summary judgment contending that Robin had not set out a prima facie case of unlawful discrimination because he was not meeting Espo's legitimate performance expectations. The district court granted Espo's motion for summary judgment on October 16, 1998. Plaintiff appealed.

II. ISSUES

On appeal, Plaintiff-Appellant argues that the district court erred in granting summary judgment to Defendant because his performance met Espo's legitimate expectations and the evidence is sufficient to establish pretext or, alternatively, a convincing mosaic of circumstantial evidence of discrimination.

III. DISCUSSION

We review a district court's decision to grant summary judgment de novo. See Hoffman v. MCA, Inc., 144 F.3d 1117, 1121 (7th Cir. 1998). A motion for summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genuine issue of material fact exists, "a trial court must view the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party." Renovitch v. Kaufman, 905 F.2d 1040, 1044 (7th Cir. 1990) (citation omitted). To defeat a motion for summary judgment, the non-moving party cannot rest on the mere allegations or denials contained in his pleadings, but "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995) (citations omitted). However, neither presenting a scintilla of evidence, see Senner v. Northcentral Tech. College, 113 F.3d 750, 757 (7th Cir. 1997), nor the mere existence of some alleged factual dispute between the parties or some metaphysical doubt as to the material facts, is sufficient to oppose a motion for summary judgment. See Hoffman, 144 F.3d at 1121. The party must supply evidence sufficient to allow a jury to render a verdict in his favor. See Nowak v. St. Rita High School, 142 F.3d 999, 1002 (7th Cir. 1998).

Plaintiff claims that he can sustain his intentional discrimination case under both the...