Richard Wittwer v. MacLean Hunter Publishing Company

Citations: 73 F.3d 365; 1995 U.S. App. LEXIS 40521; 1995 WL 767091Docket: 95-1699

Court: Court of Appeals for the Seventh Circuit; December 26, 1995; Federal Appellate Court

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Seventh Circuit Rule 53(b)(2) prohibits the citation of unpublished orders as precedent, except for specific legal doctrines. Richard Wittwer, the plaintiff-appellant, filed a lawsuit against Maclean Hunter Publishing Company, alleging wrongful termination under the Age Discrimination in Employment Act (ADEA) after being employed from March 1980 until August 1992, when his employment ended. The district court granted Maclean's motion for summary judgment, which Wittwer is appealing.

Wittwer served as a Marketing/Sales Manager, primarily responsible for selling advertising space in Concrete Products, which constituted 90% of his business. In the early 1990s, Maclean experienced a decline in advertising revenue, prompting the hiring of Robert Dimond and John Bold to reorganize the sales department. They adopted a "consultive" sales approach and assessed sales personnel for potential restructuring.

In August 1992, a consolidation of sales roles led to an evaluation of Wittwer's performance. Despite having sold the highest volume of advertising in Concrete, his overall sales were declining more rapidly than his peers. Dimond and Bold observed Wittwer's sales techniques and found them ineffective; they described him as verbose and lacking focus, failing to engage clients effectively during sales calls.

Dimond and Bold evaluated plaintiff Wittwer and concluded he was unsuitable for sole responsibility of selling ad space in the Midwest for Construction and Concrete, citing his inability to exploit the publication's growth potential due to his lack of experience in the construction industry. They replaced him with Renee Shane, who had relevant experience and a strong network in the construction sector. Shane, age 33 at her hiring in August 1992, held a B.S. in journalism and marketing, had previously managed a substantial advertising budget, and possessed contacts from her prior role as Marketing Communications Manager at Allied Steel. 

On August 27, 1992, Bold informed Wittwer of his termination due to a restructuring of sales assignments, which Dimond later confirmed in a memo. At the time of his termination, Wittwer was 75 but had misrepresented his age as 46 when hired. Other sales representatives, who were also in their sixties, retained their positions after the restructuring. Wittwer alleged that his age was often a topic of conversation among colleagues, with particular comments made by Burchett, although Gray noted that neither Bold nor Dimond participated in such joking. Wittwer filed a charge of age and sex discrimination with the Illinois Department of Human Rights and subsequently a lawsuit, but the district court granted Maclean's motion for summary judgment, concluding there were no material facts supporting Wittwer's claim of age discrimination. Wittwer is appealing the decision.

Wittwer contends that the district court incorrectly granted Maclean's motion for summary judgment, arguing that a reasonable jury could have deemed Maclean's rationale for his termination as pretextual. Key points include: 

1. The sales department's purported reorganization lacked substantial changes, evident only in Wittwer's termination and Shane's hiring.
2. Wittwer's alleged poor performance was not cited as a reason for his dismissal until Maclean sought summary judgment.
3. Maclean's inconsistent explanations for Wittwer's termination—citing reorganization to Wittwer and the IDHR but claiming sub-standard performance in court—suggest that the company did not genuinely believe its stated reasons.
4. Wittwer was replaced by a younger, less qualified individual.
5. Evidence of age discrimination includes Wittwer being the subject of office jokes regarding his age and the termination of another older employee who refused a significant pay cut.

The court reviews the grant of summary judgment de novo, favoring the non-moving party, and it can only be granted when there are no genuine issues of material fact. To establish an age discrimination claim, a plaintiff must show that age was the determinative factor in their termination. This requires proving a prima facie case that includes being in a protected age group, meeting employer expectations, facing discharge, and showing that younger employees were treated more favorably. If this is established, the burden shifts to the employer to provide a legitimate reason for the discharge. The employer is entitled to summary judgment unless the plaintiff demonstrates that the reasons provided are mere pretexts for age discrimination. Ultimately, the plaintiff retains the burden of proving intentional discrimination.

To establish pretext in an employment discrimination case, a plaintiff must show that 1) the employer's proffered reasons lacked factual basis; 2) those reasons did not actually motivate their discharge; or 3) the reasons were inadequate to justify the discharge. The plaintiff must create an issue regarding the employer's belief in the reasons provided, rather than simply arguing that the employer made a poor decision. Specifically, the plaintiff must refute the supporting facts for the employer's reasons.

In the case at hand, Maclean has acknowledged that Wittwer presented a prima facie case of age discrimination. Maclean claims that, post-reorganization, Wittwer was deemed unqualified for a new sales position. Wittwer contends that the reorganization was a fabricated excuse for his dismissal, noting that prior shifts in sales territories were not labeled as reorganizations. He argues that Shane, who was hired after him, performed essentially the same job with only a minor territory shift.

Contrary to Wittwer's claims, evidence indicates a significant restructuring of the sales department. Wittwer's responsibilities included a wide range of states for two magazines, while Shane's role encompassed additional states and magazines, proving that her position was not equivalent to Wittwer's. Furthermore, the restructuring involved consolidating other sales representatives' duties, with older employees, such as Ray Burchett and Frank Gray, being assigned new responsibilities, indicating a substantial organizational change beyond Wittwer's case alone.

Wittwer contends that his job performance did not warrant termination, claiming he had never received formal written performance reviews or warnings about his performance during his twelve years at Maclean. He attributes a significant drop in sales to increased competition and a general recession. Despite his claims of satisfactory performance, he was the only sales representative in his group not to receive a merit increase over the past decade, and his sales had been declining for three years, with the most significant drop occurring in 1992, the year of his dismissal. The district court supported the employer's rationale for termination, noting that Wittwer's performance was inadequate, particularly after the reorganization that shifted his responsibilities to the Construction magazine.

The court emphasized that evaluations of job performance should focus on the employee's capabilities at the time of termination, not past qualifications. Although Maclean had not criticized Wittwer prior to the reorganization, his inability to capitalize on opportunities in the new role raised concerns for his supervisors, Bold and Dimond. The trial judge concluded that Wittwer was not the most qualified candidate for the new sales position, supported by evidence of his declining advertising revenue compared to peers. Wittwer's disagreement with his supervisors' assessments was noted, but his self-serving statements in depositions were deemed insufficient to create a factual dispute against the employer's evaluations. The court reinforced that the relevant perspective is that of the decision-makers, not the employee's self-assessment.

In employment discrimination cases, federal courts do not reassess an entity's business decisions, as established in Sample and McCoy cases. Even if a performance concern is unfounded or if the employee was highly qualified, as long as the employer genuinely believed their assessment, their business judgment remains unchallenged under the Age Discrimination in Employment Act (ADEA). The ADEA does not address poor business practices or managerial mistakes unless there is evidence of age discrimination. 

Wittwer, the plaintiff, claimed surprise at his dismissal despite not receiving a formal negative performance evaluation and being the only sales representative not to receive a pay raise in a decade. However, the court clarified that the ADEA does not provide remedies for the failure to warn about performance issues without evidence of age discrimination. Similarly, Wittwer's argument that inconsistent reasons for his termination indicated pretext was dismissed. While he pointed out that his employer initially cited reorganization as the reason for his termination and later mentioned job performance, the court noted that he did not demonstrate how this inconsistency undermined the employer's decision. 

The excerpt references a related case involving Hugh Pierce, who was laid off and claimed age discrimination. The employer maintained that the layoff was due to a decreased workload, stating that performance was not a factor in the decision. This precedent underlines the principle that inconsistent explanations alone do not suffice to demonstrate pretext without further evidence.

An inspector found that many of Pierce's projects were transferred to a younger employee. When questioned, the plant manager claimed Pierce was less qualified due to his aversion to travel and paperwork, despite acknowledging that he did not adhere to Ethan Allen's layoff policy in deciding to terminate Pierce. At trial, the personnel director testified that Pierce and the younger employee were evaluated according to the layoff policy, and it was determined that the younger employee was better suited for the position due to prior experience as a plant manager. The court concluded that inconsistencies in the explanations offered by Ethan Allen could suggest pretextual reasoning for age discrimination.

In contrast, Maclean maintained a consistent business rationale for the reorganization of the sales department, stating that after assessing Wittwer’s performance, he was deemed not the most qualified for a new position. Although Wittwer argued that his performance was satisfactory, Maclean indicated during an IDHR investigation that there was no basis for this claim, citing a significant decline in sales under Wittwer’s responsibility. Upon his dismissal, it appears the reasons given were intended to be non-damaging for Wittwer's future job prospects. The legitimate reasons for Wittwer’s termination included poor sales performance and inadequate qualifications for the restructured role, which were not effectively countered by Wittwer’s self-serving statements. The court emphasized that it would not question Maclean's judgment regarding Wittwer’s abilities, stating that the Age Discrimination in Employment Act does not serve as a means to review business decisions.

Furthermore, the court upheld the judgment regarding Shane's qualifications, noting her extensive experience in the construction industry and connections that positioned her as a strong candidate for expanding the advertising clientele.

Dimond and Bold expressed strong confidence in Shane's networking and promotional skills within the construction industry, noting her achievement of placing her company on seven magazine covers in five years at Allied. Shane detailed the importance of this success, emphasizing that magazine covers cannot be purchased and are instead earned through effective networking and resourcefulness. She maintained a contact list from her magazine interactions, which she utilized at Maclean.

Contrary to the plaintiff's argument that Shane lacked sales experience prior to joining Maclean, defense counsel highlighted that her experience in purchasing advertising provided her with valuable insights for selling. Despite Wittwer's claims of discriminatory intent linked to the personnel manager's notation of Shane's birth date on her application, it was established that the personnel manager had no involvement in the decision to terminate Wittwer, making the notation irrelevant. 

Wittwer's assertion that jokes about his age indicated pretext for discrimination was undermined by the fact that only employees not involved in his dismissal admitted to such comments. Legal precedent supports that remarks from non-decision makers cannot substantiate claims of discrimination. No evidence suggested that Bold or Dimond made age-related comments or were aware of the jokes. Additionally, the jokes did not imply that Wittwer's age was detrimental; they merely indicated perceptions of his appearance.

Finally, Wittwer claimed that the termination of Jean Miller, the only other employee over 70, indicated Maclean's intent to eliminate older employees. However, the timing of her dismissal—over a year after Wittwer's departure—and the lack of evidence connecting Bold or Dimond to her termination weakened this argument, as her case was deemed too temporally distant to suggest a pattern of age discrimination.

Uncontested evidence shows that Maclean did not engage in a deliberate effort to eliminate older employees, contradicting Wittwer's allegations. At the time Wittwer was terminated, Maclean believed him to be 63, and that other employees, Burchett and Gray, were older. Dimond's deposition indicated that, in August 1992, several sales representatives in Chicago and Atlanta were over the age of fifty. The record lacks disputed facts that would allow a jury to infer that Maclean's reasons for Wittwer's termination were pretextual; specifically, Wittwer's sales performance had declined more than that of his peers, and he had no potential new clients for a crucial magazine. After restructuring the sales position, Bold and Dimond deemed Wittwer unqualified for the new role, leading to his termination. Maclean's reasons for dismissal remained consistent and were not deemed pretextual. Additionally, while Wittwer claimed he faced challenges in securing employment after being fired, he had misrepresented his age to Maclean to enhance his job prospects and admitted his actual age in response to the defendant's material facts.