Sarsha v. Sears, Roebuck & Co., 92-3260

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation3 F.3d 1035
Docket NumberNo. 92-3260,92-3260
Parties62 Fair Empl.Prac.Cas. 1114, 62 Empl. Prac. Dec. P 42,546 Kenneth SARSHA, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
Decision Date18 October 1993

John A. Dienner, II (argued), Matthias A. Lydon, Lydon & Griffin, Chicago, IL, Lawrence Petroshius, Petroshius & Petroshius, Waukegan, IL, for plaintiff-appellant Kenneth Sarsha.

Jeffrey S. Goldman, Allison Blakley (argued), Paul A. Olsen, Fox & Grove, Chicago, IL, for defendant-appellee Sears, Roebuck & Co.

Before FLAUM and KANNE, Circuit Judges, and REAVLEY, Senior Circuit Judge. *

KANNE, Circuit Judge.

Kenneth Sarsha sued Sears, Roebuck & Company, alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621 et seq., and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The district court granted the defendant's motion for summary judgment on both claims. We affirm in part and reverse in part.

I.

In December 1987, Gary Taylor, manager of the Sears retail store in Springfield, Illinois, determined that Sarsha, the store's operating manager and second-in-command, was dating a subordinate by the name of Rebecca Schaertl. The next month, after consulting the company's regional office in St. Louis, Taylor fired Sarsha for alleged "willful misconduct," specifically, dating Schaertl after being warned by his supervisors not to date co-workers. Sarsha sued, charging age and gender discrimination. He claimed that Sears had no policy or long standing practice preventing managers from dating subordinates, and protested that he was never warned, on threat of his job, to refrain from dating a co-worker. According to Sarsha, he was discharged because of his age (46) and because he was a male; Sears did not discharge his inamorata.

The district court disagreed, and concluded that Sarsha had failed to state a viable claim under either the ADEA or Title VII. Sarsha v. Sears, Roebuck & Co., 796 F.Supp. 1132 (N.D.Ill.1992). With respect to the age discrimination claim, the court held that Sears had articulated a non-discriminatory reason for discharging Sarsha, and that Sarsha had failed either to demonstrate that the asserted reason was pretextual or to produce direct evidence of discriminatory intent. On the gender discrimination claim, the court held that Sarsha had failed to establish a prima facie case because he failed to show that, under the circumstances, his employer had treated him differently from a similarly situated female. Sarsha appealed; we have jurisdiction pursuant to Title 28 U.S.C. Sec. 1291.

II.

We review de novo a district court's grant of summary judgment, viewing the record and all reasonable inferences drawn from it in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir.1992); Anderson v. Stauffer Chemical Co., 965 F.2d 397, 400 (7th Cir.1992). Summary judgment is appropriate only when the materials before the court demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir.1988). This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir.1992); McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir.1989). Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. Billish v. City of Chicago, 989 F.2d 890, 892 (7th Cir.1993), petition for cert. filed, June 28, 1993. See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Karazanos v. Navistar International Transportation Corp., 948 F.2d 332, 335 (7th Cir.1991).

To prevail on an ADEA claim, Sarsha must ultimately prove that he was discharged because of his age. Anderson, 965 F.2d at 400. He does not need to prove that Sears was motivated by age alone; "it is enough that age was a 'determining factor' or a 'but for' element in the employer's decision." Id. See also Fisher, 979 F.2d at 1243; La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984). To prove his claim, Sarsha may follow either of two evidentiary paths. First, he may try to meet his burden head on by presenting direct or circumstantial evidence that age was a dispositive factor in his discharge. King v. General Electric Co., 960 F.2d 617, 621 (7th Cir.1992). The district court held that Sarsha had failed to show direct evidence of age discrimination. 1 We agree. The evidence Sarsha puts forth to show Sears's discriminatory animus is exiguous, and he has made no attempt to show a nexus between this evidence and Sears's decision to fire him. See Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1266 (7th Cir.1993) (alleged discriminatory remarks, when unrelated to the employment decision in question, are not evidence that employer relied on illegitimate criteria); Smith v. Firestone Tire and Rubber Co., 875 F.2d 1325, 1330 (7th Cir.1989) (same).

Sarsha can also attempt to prove his case using the indirect, burden shifting method of proof outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Weihaupt v. American Medical Association, 874 F.2d 419, 424 (7th Cir.1989); Oxman v. WLS-TV, 846 F.2d 448, 452-53 (7th Cir.1988). This method places the initial burden on the plaintiff to prove a prima facie case of age discrimination. Thus, Sarsha must demonstrate that (1) he was a member of the protected class (persons over 40), (2) he was performing his job well enough to meet his employer's legitimate expectations, (3) he was discharged, and (4) the employer sought a replacement for him. Anderson, 965 F.2d at 400; McCoy, 957 F.2d at 371.

If Sarsha clears this hurdle, a presumption of discrimination arises and the burden of production shifts to Sears to articulate a legitimate, nondiscriminatory reason for Sarsha's discharge. If Sears does so, the presumption dissolves and the burden of production shifts back to Sarsha to show, by a preponderance of the evidence, that the proffered reason is pretextual. Fisher, 979 F.2d at 1243. Pretext may be established directly with evidence that Sears was more likely than not motivated by a discriminatory reason, or indirectly by evidence that the employer's explanation is not credible. Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7th Cir.1992); Anderson, 965 F.2d at 400; McCoy, 957 F.2d at 372. Under the indirect method of proof, only the burden of production shifts from one party to the other; the ultimate burden of proving intentional discrimination remains with Sarsha. Hong, 993 F.2d at 1261; Anderson, 965 F.2d at 400.

The district court found, and the parties agree, that Sarsha established a prima facie case of age discrimination. He is over forty years old, performed well at his job, and was fired and replaced by a younger person (age 38). Sears claims it fired Sarsha because he violated the company's no-dating policy and failed to heed warnings not to date a subordinate. 2 Either is a legitimate nondiscriminatory reason for terminating an employee. The question, therefore, is whether Sarsha has created a genuine issue concerning the sincerity of the proffered reasons for his discharge. See Colosi, 965 F.2d at 502.

The following is supported by the record in this case. Taylor believed Sarsha's relationship with Schaertl compromised his effectiveness as a manager and exposed Sears to potential liability in the form of a sexual harassment suit. He claims he informed Sarsha that Sears's policy prohibits relationships between staff members and employees of the opposite sex, and instructed him to refrain from such relationships. Because Sarsha refused to comply, Taylor contacted Stephen Allen, the company's regional director in St. Louis. Allen considered four pieces of evidence that, according to Sears, demonstrate Sarsha's history of improper relationships with co-workers. First, two unsigned letters, purportedly written by employees at the Springfield store, complaining about a 1986 affair Sarsha had with a Sears security officer. Second, a July 15, 1986 file memo written by Allen Zimmerman, the former regional personnel manager, concerning a meeting he had with Sarsha in response to the two letters. The memo states, in part:

I told Ken that Sears would not tolerate any relationship between management and a subordinate. I asked Ken if he knew Sears['s] long standing practice that Sears management should not be involved with employees. Ken acknowledged! I told Ken that if any current or future relationships exists [sic] or will exists [sic] in the future he would be terminated. Ken stated he understood! And would discontinue any personal relationships. Again, I informed Ken that actions such as mentioned in the letter would be grounds for termination--he understood.

Third, Allen considered a January 4, 1988 letter written by Taylor to Zimmerman, describing two instances in which Taylor informed Sarsha that Sears's policy forbids relationships with other employees. Finally, Allen considered a December 31, 1987 surveillance report by John Sullins, regional loss prevention manager and part-time sleuth. The report disclosed that on December 30 Schaertl spent the evening with Sarsha at his home.

After reviewing these documents, Allen consulted with Taylor and David Rich, the current regional personnel manager. They concluded that Sarsha's relationship with...

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