Faas, Lynn v. Sears Roebuck ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2656
LYNN FAAS,
Plaintiff-Appellant,
v.
SEARS, ROEBUCK & CO.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5299—William J. Hibbler, Judge.
____________
ARGUED MAY 9, 2008—DECIDED JULY 10, 2008
____________
Before FLAUM, KANNE, and TINDER, Circuit Judges.
KANNE, Circuit Judge. Lynn Faas worked as a store
general manager for Sears, Roebuck & Co. (“Sears”) until
she was fired in September 2004. One year later, Faas
filed suit against Sears, claiming that Sears wrongfully
terminated her employment in violation of the Age Dis-
crimination in Employment Act (ADEA), 29 U.S.C. § 621
et seq. Following discovery, the district court granted
summary judgment to Sears, which claimed that it had
not dismissed Faas because of her age, but as a result of
her poor performance. After conducting our own review
of the record, we agree and affirm.
2 No. 07-2656
I. HISTORY
The following facts are recounted in the light most
favorable to Faas, the non-moving party. Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 489 n.1 (7th Cir. 2007).
Lynn Faas, age 53, began her career with Sears as a part-
time sales associate in 1974. For nearly twenty years,
Faas worked her way up the company ladder, and she
became the store general manager of Sears’s Sheboygan,
Wisconsin store in 1993. Faas received subsequent promo-
tions to larger stores until finally settling in as the store
manager of Sears’s Fox Valley Mall store in Aurora, Illi-
nois, in April 2000.
As store general manager, Faas held the top manage-
ment position in the Fox Valley store. This meant that
Faas was ultimately accountable for everything that
happened within the store, including customer service,
income generation, sales development, and special
events. Eight assistant store managers headed the store’s
various departments and worked under Faas. Faas re-
ported to the district general manager of the Chicago South
District, who managed the fourteen Sears stores in the
district. Each district general manager was supervised
by a regional vice-president.
In late 2002, Sears developed a new method of evalu-
ating the performance of its stores (and its store general
managers). Part of this initiative included tabulating a
“balanced scorecard” that analyzed each store’s perfor-
mance in four categories: customer satisfaction, per-
sonnel data, sales, and profits. Sears utilized a 5.0 point
scale to rate each category—a score of 1.0 was considered
the worst possible score, a 5.0 was a perfect score, and a
3.0 indicated “acceptable” performance. The balanced
scorecard then averaged the scores for each of the four
No. 07-2656 3
categories, which yielded a store’s overall balanced-
scorecard rating. Sears’s corporate office issued balanced
scorecards for each Sears store every month, and tracked
the cumulative monthly scores for each store. The store
managers were responsible for leading and coaching
their teams to meet Sears’s customer service and perfor-
mance expectations, and were held accountable for
their stores’ balanced-scorecard scores.
When a district general manager felt that a store gen-
eral manager was underperforming, the district manager
could attempt to rehabilitate the store manager through a
procedure called a “Performance Plan for Improvement.”
Sears outlined the Performance Plan for Improvement
process in a policy guide issued to all Sears managers:
a manager identifies the associate’s performance deficien-
cies; the manager then discusses the performance short-
falls with the associate, and together they outline a plan
for correcting the performance problems; finally, the
manager follows up to ensure adherence to the correc-
tive plan. Sears’s policy guide explained that “[t]he
manager . . . should use discretion to determine the exact
timing for each follow-up step, considering the severity
of the issue at hand and the opportunity to observe
changes in performance; however, the manager must
treat similar performance situations among associates in
a consistent manner.”
In November 2002, Robert Poss, Faas’s district general
manager, placed Faas on a Performance Plan for Improve-
ment because of her inconsistent execution, lack of organi-
zation, and inability to train and to provide leadership to
her sales associates and assistant store managers. Poss
commented in a memo explaining his decision to place
Faas on a Performance Plan, “[i]t appears to me at this
4 No. 07-2656
point [that] Lynn is not capable of running this size
store.” Poss also noted that Faas’s store lagged behind
the other stores in the Chicago South District, and that
her deficiencies as a manager resulted in unacceptably
low customer-satisfaction scores for the Fox Valley store.
Faas provided Poss with a corrective plan that acknowl-
edged that she needed to better coach her employees.
Faas remained on the Performance Plan for Improve-
ment until July 2003. Between November 2002 and July
2003, Poss followed up with Faas several times. On each
occasion, Poss acknowledged that Faas had made some
progress, but he also noted that Faas had not rectified
many of her performance problems. Poss explained that
the Fox Valley store’s customer-satisfaction scores were
still below the company average and those of the other
stores in the district. Poss also called into question Faas’s
leadership skills because of her failure to develop her
assistant store managers. And Poss noted on several
occasions that if Faas did not improve, further action
would be necessary, “including termination of employ-
ment.” Poss finally removed Faas from the Performance
Plan in July 2003, but he told her that she still needed to
improve her customer-satisfaction scores. Around the same
time, Poss issued a mid-year review to Faas in which he
rated her a two out of five for results, and a three out of
five for leadership. Faas later explained that she
viewed Poss as “an excellent leader” and “a fair manager,”
and she did not believe that his decision to place her
on a Performance Plan was related to her age.
Poss retired in October 2003, and was replaced by Wendy
Carges as district general manager for the Chicago South
District. When Carges took over for Poss, the Chicago
South District stores had balanced-scorecard ratings that
No. 07-2656 5
ranked among the worst of Sears’s 63 districts nation-
wide. In order to improve the chronically underachieving
stores in the Chicago South District, Carges assessed the
individual performance of each of the twelve store gen-
eral managers in her district, and determined that all but
two of the store managers were underperforming. The
two store managers that Carges believed to be adequately
managing their stores, Ray Morris (age 59) and David
Allen (age 62), were both older than Faas. Among the ten
underperforming store managers, one had started with
Sears only six months before Carges’s hire and had only
been at his store for one month, and four others did not
begin at their stores until after Carges became district
manager—one of these four store managers was also
new to Sears. Carges discussed the situation with her
regional vice-president, Steve Sunderland, who told her
to take her time evaluating the store general managers in
her district and gave her latitude to decide whether to
place store general managers on Performance Plans for
Improvement.
Faas was among the remaining five store general manag-
ers whom Carges considered to be underperforming.
Carges’s initial impression of Faas was that she had
poorly managed the 2003 holiday season and that her
team was not cohesive. Carges observed, as Poss had,
that the balanced-scorecard numbers for the Fox Valley
store were unacceptably low and were particularly weak
in the customer-satisfaction category. The Fox Valley
store was particularly important to Carges’s plan for
rejuvenating her district because it was the third largest
volume store in the Chicago South District, and was
scheduled to undergo remodeling beginning in Novem-
ber 2003.
6 No. 07-2656
After Carges spoke to Sunderland, she met with Faas
twice in early 2004 and told Faas that she was con-
sidering placing her on a Performance Plan for Improve-
ment. Carges did not immediately place Faas on a Per-
formance Plan, and instead explained to Faas that she
did not think that Faas had the requisite skill sets to run
the large Fox Valley store, nor did she think that Faas
was right for Sears’s “current matrix.” Carges encouraged
Faas to consider “any and all options,” such as a position
in Sears’s corporate offices or leaving Sears to run a
specialty store. Faas told Carges that she liked her posi-
tion as a store general manager and that she did not want
to leave voluntarily.
In February 2004, Carges conducted a performance
review of Faas and rated her a two out of five for both
results and leadership. The review also contained a self-
assessment section, in which Faas rated herself a two out
of five for results and a three out of five for leadership.
But Carges’s performance review was not entirely crit-
ical: Carges complimented Faas for her handling of the
remodeling of the Fox Valley store, and Carges noted
that Faas seemed to understand what was required of
her while other store general managers did not.
In March 2004, Carges received complaints from two
of Faas’s assistant store managers because Faas allegedly
mistreated them and berated her team during a meeting.
Carges discussed the complaint with Faas and again
encouraged her to pursue other employment options
because having a fragmented store would make it diffi-
cult for her to improve as store general manager. Faas
again informed Carges that she wanted to retain her
current position and that she believed she could remedy
the situation. Soon after the incident, Carges was told by
No. 07-2656 7
Sunderland that the Fox Valley store needed a “new
person” because something was wrong with the “culture”
at the store.
In May 2004, Carges determined that Faas’s performance
had still not improved, and Carges placed Faas on a
Performance Plan for Improvement. At that time, the
Fox Valley store had a year-to-date balanced-scorecard
rating of 1.9, and the store’s customer-satisfaction compo-
nent was 1.0. The Performance Plan explained that Faas
failed to demonstrate an ability to successfully lead her
team, that her store’s balance-scorecard rating was unac-
ceptable, and that its customer-satisfaction score was
“substandard.” Carges also noted that Faas neglected
to coach or train her assistant store managers and that
her inconsistent performance would “result in further
action, which may include termination.” In June 2004,
Carges met with Faas and noted some progress but also
stated that the leadership concerns still needed immedi-
ate improvement.
By July 2004, Faas’s store had the lowest balanced-
scorecard rating (1.6) in the entire Chicago South District,
and the store’s customer-satisfaction score remained a 1.0,
which Carges later noted was “one of the poorest within
the district, region, and nation.” On August 13, 2004,
Carges issued a memo to Faas informing her that her
store’s balanced-scorecard ratings were “completely
unacceptable,” and that she had 30 days to correct her
performances issues or she would be terminated.
From September 4 through September 12, 2004, Faas
took a vacation to celebrate her 50th birthday. Sears had
scheduled two special events at the Fox Valley store for
that week: a fall-apparel promotion and an autograph
8 No. 07-2656
signing by ex-Chicago Cubs catcher Michael Barrett.1
Carges considered the events to be important marketing
opportunities for the Fox Valley store. When Faas left for
vacation, she placed her loss-prevention manager and
three assistant store managers—who had been in their
positions for just over one month—in charge of the promo-
tional events.
On September 8, 2004, the day of the Barrett signing,
Carges visited the Fox Valley store and disapproved of
how the apparel area had been set up for the fall promo-
tion. Carges also discovered that the assistant store man-
agers planned to have customers line up for the Barrett
signing through the parking lot instead of inside the
store, where they would be able to view the merchan-
dise while waiting. Carges noted that the assistant
store managers seemed overwhelmed and frustrated,
and she changed her plans and stayed at the Fox Valley
store for the day to guide the assistant store managers
through the promotional events. Faas was terminated
on September 13, 2004. The termination letter stated,
“Lynn continues to fail to lead her team to the level of
execution and performance necessary . . . . Key events,
critical to the success of the store that heavily impact
our customers, are poorly executed, recently the fall
apparel reset and a marketing/P.R. event.”
Faas filed this age-discrimination lawsuit under the
ADEA in September 2005. After the case proceeded
1
Barrett was traded from the Cubs to the San Diego Padres in
June 2007 after an infamous dugout brawl with his “battery-
mate,” pitching-ace Carlos Zambrano. The North Siders,
perhaps motivated by the spat, went on to win the National
League Central Division title in 2007.
No. 07-2656 9
through discovery, Sears filed a motion for summary
judgment in November 2006, arguing that Faas could
not prove a prima facie case of age discrimination
through either direct or indirect evidence because the
undisputed facts showed that Faas was fired for her
consistently deficient performance. In response to Sears’s
summary-judgment motion, Faas argued that she could
prove age discrimination through both direct and indirect
evidence, and that an adverse inference should be
drawn against Sears because of Sears’s destruction of
certain employee records.
Faas’s direct-evidence and adverse-inference argu-
ments in opposition to summary judgment stemmed
from her discovery of “Leadership Overviews”—docu-
ments that Sears created as part of its “Sears Leadership
Overview and Talent Management Process,” which it
implemented to ascertain what potential talent the com-
pany had within its ranks. Sears evaluated the confiden-
tial Leadership Overviews at annual planning meetings
to determine who might be a good candidate for promo-
tion in the future. The Leadership Overview forms con-
tained biographical information such as age, education,
and gender, and also provided an assessment of an em-
ployee’s potential by placing the employee in one of five
categories—“high potential,” “promotable,” “solid per-
former,” “blocker,” or “above capacity.” The “blocker”
category referred to someone whose performance was
adequate, but whom management did not perceive to
have the skills to move beyond their current assignment,
and who might be limiting the development of other
employees by remaining in their current position. Sears did
not terminate employees it classified as “blockers”; how-
ever, the company had a policy of motivating “blockers” to
10 No. 07-2656
pursue other positions because they limited the develop-
ment of more promising employees. Poss rated Faas a
“blocker” in the “Overall Assessment of Potential” cate-
gory on her 2003 Leadership Overview, which Sears
produced to Faas during discovery.
Sears did not show the Leadership Overviews to its
employees and did not keep the forms in the employees’
personnel files. Sears retained the forms only until it
completed the next cycle of overviews—typically six
months to one year—at which point, Sears shredded the
documents. During a deposition, Donna Deselits, Sears’s
Human Resources Director for stores in the North
Central Region, explained that the Leadership Over-
views listed confidential factors such as age and salary,
and for this reason, among others, Sears destroyed the
documents. Faas’s summary-judgment response con-
tended that the document destruction supported an
inference that the documents contained information
adverse to Sears’s case. See Park v. City of Chicago, 297
F.3d 606, 615-16 (7th Cir. 2002). Faas also argued that
Deselits’s comment about the document shredding and
Deselits’s decision to shred the documents were direct
evidence of age discrimination.
Faas’s indirect-evidence argument in her response to
Sears’s motion for summary judgment claimed that she
had presented circumstantial evidence of age discrimina-
tion because younger, similarly situated store general
managers were not disciplined or terminated, while
older, similarly situated store managers were disciplined
and encouraged to retire. Faas pointed to the fact that
the Fox Valley store was not the only struggling Sears
store in the Chicago South District in 2004; in fact, every
store had a score below the 3.0 benchmark. Faas claimed
No. 07-2656 11
that by selecting Faas and two older store managers—
David Johnson (age 62) and John Spencer (age 59)—for
Performance Plans for Improvement, Carges had failed
to consistently apply Sears’s disciplinary standards. As
with Faas, Carges encouraged both Johnson and Spencer
to pursue other employment options, and both men
eventually elected to retire voluntarily.
Sears countered by explaining that Carges decided that
she could not handle putting all of the store general
managers on Performance Plans for Improvement sim-
ultaneously, so she elected to focus on the store man-
agers with the lowest balanced-scorecard ratings—Faas’s
store had a 1.6, Johnson’s store had a 1.8, and Spencer’s
store had a 1.9. Sears also explained that Carges did not
place Scott Kraatz (age 50), whose store had the second-
lowest rating (1.7) on a Performance Plan because Kraatz
was one of the store managers who was new to Sears and
new to his store, and also because Kraatz’s store had
started 2004 with a score that was “quite good” that
slipped as the year went on. Carges eventually placed
Kraatz on a Performance Plan in 2005.
The district court evaluated the parties’ arguments,
reviewed the summary-judgment record, and granted
summary judgment to Sears. The district court first ex-
plained that Deselits’s testimony about the Leadership
Overviews was not direct evidence of age discrimination
because Deselits’s comment “simply [was] not related” to
Carges’s decision to terminate Faas, and because the term
“blocker” was age-neutral. The district court next ex-
plained that it would not draw an adverse inference
against Sears about the contents of the Leadership Over-
views. Finally, the district court rejected Faas’s attempt
to show discrimination by circumstantial evidence, noting
12 No. 07-2656
that “Sears provided a legitimate, non-discriminatory
reason for Carges’s decision to place Faas, and not the
other [store general managers], on a [Performance Plan
for Improvement],” and that Faas did not present any
evidence that the proffered reason was pretextual.
II. ANALYSIS
Faas now reiterates two of the three arguments she
made to the district court in opposition to summary
judgment. First, Faas contends that she presented a prima
face case of age discrimination under the indirect method
of proof because she offered “strong evidence” that Sears
treated similarly situated, younger store general managers
more favorably than it treated Faas and other similarly
situated, older store managers; Faas claims that her evi-
dence raised a genuine issue of material fact with respect
to whether Sears’s justification for the disparate treat-
ment of its store managers was pretextual. Second, Faas
argues that the district court should have drawn an
adverse inference against Sears based upon Sears’s destruc-
tion of the Leadership Overviews.
We review the district court’s grant of summary judg-
ment to Sears de novo, examining the record in the light
most favorable to Faas. See Koger v. Bryan, 523 F.3d 789, 796
(7th Cir. 2008). Summary judgment is proper where “the
pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To raise a
genuine issue of material fact, Faas must do more than
“simply show that there is some metaphysical doubt as to
No. 07-2656 13
the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); see also Springer v.
Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). “ ‘A genuine
issue of material fact arises only if sufficient evidence
favoring the nonmoving party exists to permit a jury to
return a verdict for that party.’ ” Springer, 518 F.3d at
483 (quoting Sides v. City of Champaign, 496 F.3d 820, 826
(7th Cir. 2007), and Brummett v. Sinclair Broad. Group, Inc.,
414 F.3d 686, 692 (7th Cir. 2005)).
A. Faas’s prima facie case of age discrimination
The ADEA makes it unlawful for an employer to dis-
charge an individual because of her age. 29 U.S.C.
§ 623(a)(1). To establish her claim under the ADEA, Faas
must show that her age “ ‘actually motivated’ ” Sears’s
decision to terminate her employment. Hemsworth, 476 F.3d
at 490 (quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 141 (2000), Hazen Paper Co. v. Biggins, 507 U.S.
604, 610 (1993), and Schuster v. Lucent Techs., Inc., 327 F.3d
569, 573 (7th Cir. 2003)). In other words, Faas must show
that her age “ ‘actually played a role in [Sears’s decision-
making] process and had a determinative influence on
the outcome.’ ” Id. (quoting Reeves, 530 U.S. at 141, Hazen,
507 U.S. at 610, and Schuster, 327 F.3d at 573).
Faas may establish her ADEA claim through either the
direct or indirect methods of proof. Hemsworth, 476 F.3d
at 490; Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th
Cir. 2006). We have noted that because a plaintiff may
utilize circumstantial evidence under both methods of
proof, “[t]he distinction between the two avenues of proof
is ‘vague,’ and the terms ‘direct’ and ‘indirect’ themselves
are somewhat misleading in the present context.” Luks v.
14 No. 07-2656
Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir. 2006)
(quoting Sylvester v. SOS Children’s Vills. Ill., Inc., 453
F.3d 900, 903 (7th Cir. 2006)) (internal citation omitted).
The direct method of proof involves direct evidence,
such as near-admissions by the employer, as well as more
attenuated circumstantial evidence that “ ‘suggests dis-
crimination albeit through a longer chain of inferences.’ ”
Hemsworth, 476 F.3d at 490 (quoting Luks, 467 F.3d at
1052). In contrast, the indirect method of proof involves
a certain subset of circumstantial evidence that in-
cludes how the employer treats similarly situated em-
ployees, and “ ‘conforms to the prescription of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).’ ” Id. at 490-
91 (quoting Luks, 467 F.3d at 1052).
On appeal, Faas has failed to raise, and has therefore
waived, her direct-method-of-proof argument. See Local
15, Int’l Bhd. of Elec. Workers v. Exelon Corp., 495 F.3d 779,
783 (7th Cir. 2007) (“ ‘A party waives any argument that . . .
if raised in the district court, it fails to develop on ap-
peal.’ ” (quoting Williams v. REP Corp., 302 F.3d 660, 666
(7th Cir. 2002))). We therefore turn to whether Faas’s
claim under the indirect method of proof can withstand
summary judgment. We evaluate whether Faas has
raised a genuine issue of material fact under the indirect
method using the familiar burden-shifting approach
outlined by McDonnell-Douglas. See Barricks v. Eli Lilly &
Co., 481 F.3d 556, 559 (7th Cir. 2007).
In order to establish a prima facie case of age discrimina-
tion under the indirect method, Faas must to prove that
(1) she is a member of a protected class; (2) her perfor-
mance met Sears’s legitimate expectations; (3) despite her
performance, she was subject to an adverse employment
action; and (4) Sears treated similarly situated em-
No. 07-2656 15
ployees outside of her protected class more favorably. See
id.; Ptasznik, 464 F.3d at 696. Assuming that Faas can
successfully lay out a prima facie case, the burden then
shifts to Sears to provide a legitimate, non-discriminatory
reason for its decision to terminate her employment. See
Barricks, 481 F.3d at 559; Ptasznik, 464 F.3d at 696. Once
Sears meets this minimal threshold, Faas may attack Sears’s
proffered reason as mere pretext for discrimination. See
Barricks, 481 F.3d at 559; Ptasznik, 464 F.3d at 696.
Where a plaintiff claims, as Faas does, that an employer’s
legitimate expectations were disparately applied, the
second and fourth elements of the prima facie case are
closely intertwined with the pretext analysis, and the two
inquiries may be merged and considered together. See, e.g.,
Cerutti v. BASF Corp., 349 F.3d 1055, 1064 n.8 (7th Cir. 2003);
Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir.
2002); Curry v. Menard, 270 F.3d 473, 478 (7th Cir. 2001); see
also Hague v. Thompson Distribution Co., 436 F.3d 816, 823
(7th Cir. 2006) (“[I]f the plaintiffs argue that they have
performed satisfactorily and the employer is lying about
the business expectations required for the position, the
second prong and the pretext question seemingly merge
because the issue is the same—whether the employer is
lying.”). We will therefore analyze whether Faas presented
sufficient evidence of pretext because without such evi-
dence, Faas cannot show that she was meeting Sears’s
legitimate expectations. See Hague, 436 F.3d at 823.
“Pretext ‘means a dishonest explanation, a lie rather than
an oddity or an error.’ ” Id. (quoting Kulumani v. Blue Cross
Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000)); see
also Hudson v. Chi. Transit Auth., 375 F.3d 552, 561 (7th
Cir. 2004) (“Pretext is more than a mistake on the part of
the employer; it is a phony excuse.”). “Showing pretext
16 No. 07-2656
requires ‘[p]roof that the defendant’s explanation is
unworthy of credence.’ ” Filar v. Bd. of Educ. of City of Chi.,
526 F.3d 1054, 1063 (7th Cir. 2008) (quoting Reeves, 530
U.S. at 147).
Sears explained that it terminated Faas because of her
consistently poor performance and for poorly executing
two key marketing events. Faas does not dispute that
she had a track record of sub-par leadership and cus-
tomer service in the larger stores. And Faas’s managerial
insufficiencies are well documented—the Performance
Plans for Improvement, the deposition testimony of
Carges, and even Faas’s own admissions indicate that
Faas was a less-than-exemplary store general manager. Yet
Faas insists that Sears is lying when it claims that she
was terminated for her poor performance and for
botching the promotional events because Sears disparately
applied its performance expectations—younger store
managers with similar performance problems were
given a chance to improve, while older store managers
were disciplined and terminated.
Faas’s disparate treatment argument is untenable be-
cause she has not come forward with evidence that the
store general managers who escaped reprimand shared
a “ ‘comparable set of failings’ ” with her. Burks v. Wis.
Dep’t of Transp., 464 F.3d 744, 751 (7th Cir. 2006) (quoting
Haywood v. Lucent Techs., Inc., 323 F.3d 524, 530 (7th Cir.
2003). Faas had a long history of poor customer service
(characterized at one point as “substandard”) and of an
inability to motivate her team (epitomized by the dissen-
sion among her assistant store managers after Faas alleg-
edly chastised her team at a meeting in March 2004). Faas’s
extensive record of poor management without improve-
ment dated back to Poss’s tenure as district general man-
No. 07-2656 17
ager, and Faas concedes that Poss, who harbored the same
concerns about Faas’s management that Carges later
observed, was unbiased. Faas also mismanaged two
major marketing initiatives. Perhaps most importantly,
Faas had the lowest balanced-scorecard rating in her
district. This idiosyncratic “set of failings” distinguishes
Faas from the other managers supervised by Carges, and
we cannot say that any of the other store general managers
were similarly situated to Faas. See Burks, 464 F.3d at 751;
Haywood, 323 F.3d at 530.
Even if we thought that the other store general man-
agers were similarly situated to Faas, other facts in the
record belie Faas’s conclusion that Carges disparately
applied Sears’s disciplinary procedures in a discrim-
inatory manner. When Carges initially evaluated the
twelve store general managers in the Chicago South
District, she believed that two—Morris and Allen—were
adequately performing their jobs. Significantly, both
Morris and Allen were several years older than Faas.
Indeed, Morris and Allen were two of the four oldest
store managers in the district. A pattern where the
protected-class members “sometimes do better” and
“sometimes do worse” than their comparators is not
evidence of age discrimination. Cf. Bush v. Commonwealth
Edison Co., 990 F.2d 928, 931 (7th Cir. 1993) (“Such a
pattern, in which blacks sometimes do better than whites
and sometimes do worse, being random with respect
to race, is not evidence of racial discrimination.”).
Of the ten underperforming store general managers,
Carges chose to discipline three—Faas, Johnson, and
Spencer—by placing them on Performance Plans for
Improvement. Faas was the low manager on the balanced-
scorecard totem pole, and Johnson and Spencer had the
18 No. 07-2656
third and fourth lowest balanced-scorecard ratings,
respectively. The manager with the second-lowest rating,
Kraatz, was not disciplined; but Kraatz had been at his
store for less than a year when Carges became district
general manager, and Kraatz had started the year
with strong balanced-scorecard ratings before struggling.
Carges eventually placed Kraatz on a Performance Plan
after Faas was terminated. Moreover, Kraatz is less than
four years younger than Faas—not a significant enough
disparity in age to present a prima face case under the
ADEA without further proof. See Bennington v. Caterpillar
Inc., 275 F.3d 654, 659 (7th Cir. 2001) (five year age differ-
ence is not significant); Hartley v. Wis. Bell, Inc., 124 F.3d
887, 892 (7th Cir. 1997) (seven year age difference is not
significant).
So Carges—faced with the daunting task of improving
ten of her twelve store managers—prioritized three of
the worst four. Carges selected whom to discipline using
an objective metric, the balanced-scorecard ratings, and
Faas makes no argument that Sears improperly used age
in calculating those ratings. Moreover, Carges’s decision
to discipline her worst-performing manager, Faas, seems
even more justified considering Faas’s habitual failures,
and considering that Carges believed the Fox Valley
store to be key to her plan to revitalize the Chicago
South District. And Carges’s decision to wait to dis-
cipline Kraatz given his inexperience and strong start
also appears quite legitimate. In light of the fact that
Carges had only limited time to manage many stores,
her decision to focus on the measurably least-competent
managers (with one justifiable exception) does not strike
us as pretext, it strikes us as wise.
Faas makes one additional argument that she claims
established a genuine issue of material fact with respect
No. 07-2656 19
to pretext: Faas contends that Carges’s refusal to place
all of the underperforming store general managers with-
in the Chicago South District on Performance Plans for
Improvement contravened Sears’s “policy” of treating
performance problems in a consistent manner. See Rudin
v. Lincoln Land Cmty. Coll., 420 F.3d 712, 727 (7th Cir.
2005) (“This court has held in the past that an employer’s
failure to follow its own internal employment procedures
can constitute evidence of pretext.” (citing Giacoletto v.
Amax Zinc Co., Inc., 954 F.2d 424, 427 (7th Cir. 1992))). Faas
claims that Sears had such a policy based on a statement
in a Sears guide that outlined the Performance Plan for
Improvement process for its managers: “the manager
must treat similar performance situations among associ-
ates in a consistent manner.”
However, Faas has taken this statement completely out
of context. The language directly before the above quota-
tion refers to a manager’s discretion in determining how
to follow up during the Performance Plan for Improve-
ment process, “[t]he manager . . . should use discretion to
determine the exact timing for each follow-up step, con-
sidering the severity of the issue at hand and the opportu-
nity to observe changes in performance; however, the
manager must treat similar performance situations
among associates in a consistent manner.” In our view,
this language does not create a policy that Sears’s man-
agers must discipline all underperforming subordinates;
rather, it limits the discretion of managers once they
choose to initiate the disciplinary process (i.e., the mana-
ger cannot be inconsistent in how she follows up with an
employee). The fact that Carges was given discretion by
Sunderland to select which store general managers to
focus on supports this reading. Nevertheless, even if we
20 No. 07-2656
were to view the language as creating a policy of treating
similar performance situations consistently, we have
already explained how Faas’s performance deviated from
that of the other store general managers. Carges’s actions
did not clearly violate such a policy.
We cannot say that Carges or Sears is lying when they
claim to have disciplined and discharged Faas for her
inability to manage the Fox Valley store. Hague, 436 F.3d
at 823; Kulumani, 224 F.3d at 685. The district court cor-
rectly held that Faas did not raise a genuine issue of
material fact on her ADEA claim under the indirect meth-
od of proof.
B. The district court’s denial of an adverse inference for Sears’s
document destruction
Finally, we turn to Faas’s contention that she was en-
titled to an inference that Sears’s Leadership Overviews
contained discriminatory content. In order to draw an
inference that the Leadership Overviews contained in-
formation adverse to Sears, we must find that Sears
intentionally destroyed the documents in bad faith. See
Park, 297 F.3d at 615; see also Rummery v. Ill. Bell Tel. Co.,
250 F.3d 553, 558 (7th Cir. 2001); S.C. Johnson & Son, Inc.
v. Louisville & Nashville R.R. Co., 695 F.2d 253, 258-59
(7th Cir. 1982). “Thus, ‘[t]he crucial element is not that
evidence was destroyed but rather the reason for the
destruction.’ ” Park, 297 F.3d at 615 (quoting S.C. Johnson &
Son, Inc., 695 F.2d at 258). A document is destroyed in bad
faith if it is destroyed ” ‘for the purpose of hiding adverse
information.’ ” Rummery, 250 F.3d at 558 (quoting Mathis v.
John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir. 1998)).
No. 07-2656 21
Faas has failed to advance any evidence that Sears
destroyed the Leader Overviews in order to hide adverse
information. Rather, she claims that we should assume
as a matter of “common sense” that Sears shredded the
forms evasively. To the contrary, the record shows that
Sears shredded the Leadership Overviews as a regular
business practice in order to protect confidential infor-
mation about its employees. And Sears’s legitimate motiva-
tion for shredding the documents is not transformed
into a disingenuous one merely because Deselits uttered
the word “age” (in addition to “salary”) when discussing
what kind of confidential information the Leadership
Overviews contained.
The district court also properly denied Faas an adverse
inference because the Leadership Overviews are not
relevant to Faas’s case. See Crabtree v. Nat’ l Steel Corp.,
261 F.3d 715, 721 (7th Cir. 2001) (upholding district
court’s decision not to grant adverse inference where
irrelevant documents were destroyed); Coates v. Johnson &
Johnson, 756 F.2d 524, 551 (7th Cir. 1985) (same). The
record shows that Sears did not use the Leadership Over-
views when deciding whether to discipline or terminate
employees—the undisputed evidence in the record is
that the Leadership Overviews were merely a talent
assessment tool that allowed Sears to ascertain who
among its employees had the potential for a promotion.
Even still, Sears preserved, and produced, Faas’s per-
sonal Leadership Overviews. This disclosure is pertinent
because Faas had access to at least one of the Leadership
Overview forms, which should have revealed the “adverse
information” that Sears sought to hide by destroying
the Leadership Overviews. But Faas’s Leadership Over-
view did not contain any discriminatory material. The
22 No. 07-2656
word “blocker,” as Sears defined it, had nothing to do
with age, but with an employee’s potential for ascent
within the company. The form listed Faas’s age, but also
included other biographical data. The fact that Faas had
access to her own Leadership Overview and could not
articulate what adverse information it contained is proof
enough that Sears did not destroy the documents to hide
adverse information. Faas “has offered no evidence,
other than [her] own speculation, that they were de-
stroyed to hide discriminatory information.” Rummery,
250 F.3d at 558. The document destruction therefore does
not raise any issue of material fact with respect to Faas’s
discrimination claim. See id. at 558-59.
III. CONCLUSION
We AFFIRM the entry of summary judgment in favor
of Sears.
USCA-02-C-0072—7-10-08