Jenkins, Paul v. Lifetime Hoan Corp

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 2, 2007
Decided January 8, 2008
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-4427
PAUL JENKINS, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 05 C 7113
LIFETIME HOAN CORPORATION,
Defendants-Appellee. George W. Lindberg,
Judge.
ORDER
Paul Jenkins sold housewares to Wal-Mart for Lifetime Hoan Corporation,
but was ultimately discharged. He then sued Lifetime claiming discrimination on
the basis of sex and age. The district court granted Lifetime’s motion for summary
judgment on both theories of discrimination, and Jenkins now appeals. We affirm.
In July 1996 Lifetime hired Paul Jenkins, who was 59 years old at the time,
to sell housewares to Wal-Mart. When Jenkins began his employment, Lifetime
sold approximately $3 million worth of merchandise per year to Wal-Mart, but
during the next seven years, Jenkins steadily increased Lifetime’s sales to Wal-
Mart to approximately $40 million.
No. 06-4427 Page 2
In August 2002 a former Wal-Mart vice-president recommended that
Lifetime hire Barbara Conklin, who was 45 years old and a salesperson from a
competing company. Lifetime accepted this recommendation and hired Conklin to
be the Wal-Mart team leader. According to Jenkins, once hired, Conklin
immediately began to criticize him for his lack of computer skills. Conklin
demanded that Jenkins communicate via email, though Jenkins claims he did not
have a computer or an email address. At the time, Jenkins’s son, also a Lifetime
employee, would check Jenkins’s email for him and respond as necessary. Conklin
also began to implement changes encouraging employees to use a computer
program that enabled sales to be made based on a better understanding of Wal-
Mart’s needs and consumption patterns.
Then, in October 2002 Conklin sent a memorandum to Evan Miller, the vice-
president at Lifetime and Jenkins’s supervisor, recommending that Jenkins be
“reassigned or retired from the Wal-Mart Account.” Two months later, Miller told
Jenkins that he had to learn how to use the computer, and according to Jenkins,
asked him, “Why don’t you think about retiring?”
In January 2003 Jenkins attended a housewares convention in Chicago
where he met Bill May, a vice-president at Wal-Mart, who allegedly told Jenkins,
“Oh, you don’t need any money. You should retire.” Then, in that same month,
Lifetime removed Jenkins from the Wal-Mart account and transferred him to
selling close-outs, which are damaged products others have been unable to sell.
This new position did not require the use of email, and his salary, including
bonuses, dropped from $300,000 per year to $60,000 per year.
Upon reassigning Jenkins to sell close-outs, Lifetime gave him lists of
potential clients and products to sell, but he could not make a sale. According to
Jenkins he was unable to make a sale because Lifetime never gave him samples of
the close-outs, despite the fact that he requested them. Jenkins’s supervisor
contended that Jenkins did not need samples of the close-outs to make a sale. The
supervisor further maintained that he had several phone conversations with
Jenkins to explain what the procedure would be for selling close-outs.
Nevertheless, during the first five months at this position, Jenkins did not make a
single sale or appointment to sell close-outs.
Lifetime then placed Jenkins on two weeks’ probation and told him that it
would terminate his employment if he did not show improvement. On May 23,
2003, Lifetime terminated Jenkins without giving him a severance package.
According to Lifetime, Jenkins’s responsibilities were assumed by Conklin and
another female employee who was 32 years old at the time.
No. 06-4427 Page 3
After Jenkins was terminated, he learned that Conklin had been having an
affair with May, the vice-president at Wal-Mart who allegedly told Jenkins he
needed to retire. Jenkins argues that Lifetime knew about the affair when it hired
Conklin, but Conklin told Lifetime that the affair had ended prior to her taking the
position. Some evidence, however, shows that Conklin lied about when the affair
ended. In any event, Conklin left Lifetime in August 2003, though the parties
dispute whether Lifetime terminated Conklin or whether she quit. Either way,
Conklin received a generous severance package, which included monthly stipends of
$10,000 for two years.
In December 2005 Jenkins filed suit, claiming that Lifetime discriminated
against him on the basis of age and sex in violation of the Age Discrimination in
Employment Act and Title VII of the Civil Rights Act of 1964. After a significant
amount of discovery, Lifetime moved for summary judgment, which the district
court granted. The district court found that there was no direct evidence of
discrimination and that Jenkins had failed to show that Lifetime’s legitimate non-
discriminatory reason for terminating him was pretextual.
Jenkins contends that the district court improperly granted Lifetime’s
summary-judgment motion. We review the district court’s grant of summary
judgement de novo. Sartor v. Spherion Corp., 388 F.3d 275, 277 (7th Cir. 2004).
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits, show that no
genuine issue of material fact exists and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56©. “The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there must be evidence on
which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986).
Jenkins first argues that the district court should not have granted summary
judgment on his claim of sex discrimination. Jenkins maintains that Miller treated
Conklin more favorably because of her sexual relationship with a vice-president at
Wal-Mart. But even if Miller favored Conklin due to this relationship, it would not
constitute discrimination against Jenkins because of his sex. As we have held, “A
male executive’s romantically motivated favoritism toward a female subordinate is
not sex discrimination even when it disadvantages a male competitor of the
woman.” Preston v. Wis. Health Fund, 397 F.3d 539, 541 (7th Cir. 2005). A woman
would be just as likely as a man to be disadvantaged by this type of favoritism. Id.
The same principle applies here because any alleged favoritism to Conklin because
of her relationship with May would have equally disadvantaged a man or a woman
in Jenkins’s position. Jenkins just happened to be a man. Therefore, the grant of
summary judgment on the sex-discrimination claim was proper.
No. 06-4427 Page 4
Turning to the age claim, Jenkins argues that the district court failed to
consider his direct evidence of age discrimination. Although it appears that the
district court did not consider Jenkins’s alleged direct evidence, that error is
harmless because Jenkins’s evidence is insufficient to survive a motion for
summary judgment. See Davis v. Con-Way Transp. Central Express, Inc., 368 F.3d
776, 782 n.3 (7th Cir. 2004). Jenkins argues the district court ignored three
remarks that allegedly show discrimination: (1) May’s suggestion that Jenkins
retire; (2) Conklin’s suggestion that Jenkins be retired from the Wal-Mart account;
and (3) Miller’s remark in December 2002 that Jenkins should retire. To constitute
direct evidence, these remarks must essentially amount to “an admission by the
decision-maker that his actions were based upon the prohibited animus.” Rogers v.
City of Chi., 320 F.3d 748, 753 (7th Cir. 2003). None of the alleged remarks meet
this requirement.
First, May’s remark is irrelevant because not only was he not Jenkins’s
supervisor, but he did not even work at Lifetime. See Rozskowiak v. Vill. of
Arlington Heights, 415 F.3d 608, 612 (7th Cir. 2005) (holding that remarks made by
someone uninvolved in making employment decisions do not constitute direct
evidence of discrimination). Second, even if the court construes Conklin’s remark
about Jenkins being “retired from the Wal-Mart account” as a comment on
Jenkins’s overall retirement, it would be insufficient to establish direct evidence of
age discrimination because an employer’s “suggestion of retirement would not alone
give rise to an inference of discrimination.” Kaniff v. Allstate Ins. Co., 121 F.3d 258,
263 (7th Cir. 1997) (suggesting retirement, even when combined with other critical
remarks, is not sufficient to constitute direct evidence of discrimination); Pitasi v.
Gartner Group, Inc., 184 F.3d 709, 714-15 (7th Cir. 1999) (commenting about early
retirement is not direct evidence of discrimination). Finally, Miller’s suggestion
that Jenkins retire is insufficient to constitute direct evidence of discrimination for
the same reason.
Jenkins also argues that he provided indirect evidence of age discrimination.
Jenkins was replaced by Conklin, who was 45 years old at the time, and another
employee who was 32 years old. A plaintiff proceeding under the indirect method of
proving discrimination must show that he was meeting his employer’s legitimate
expectations, and Jenkins has failed to meet that burden. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804 (1973); Hossack v. Floor Covering Assoc. of Joliet,
Inc., 492 F.3d 853, 860 (7th Cir. 2007). Although Jenkins states that he was
qualified for the job, he never disputes Lifetime’s evidence that he refused to use
email, did not comply with procedures for submitting appointment lists, and did not
make any appointments during five months in his new assignment. Jenkins argues
that his inability to make sales appointments was excusable because he had not
been provided with adequate information regarding the close-outs. But that is
insufficient to establish that Jenkins was meeting Lifetime’s legitimate
No. 06-4427 Page 5
expectations because it does not refute Lifetime’s assertion that Jenkins refused to
use email, did not comply with company procedures, and did not make any
appointments. See Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 753 (7th Cir. 2006)
(holding that employee’s evidence that he finished assignments failed to refute
employer’s evidence that employee did not timely complete assignments). Because
these facts are undisputed and because there is no dispute that these are legitimate
expectations, Jenkins has failed to make a prima facie case and cannot prove age
discrimination using the indirect method.
This is enough to decide this case. But even if Jenkins could prove that he
was meeting Lifetime’s expectations, summary judgment would still be appropriate
because he produced no evidence that Lifetime’s asserted non-discriminatory reason
for transferring him to a new position and terminating his employment was
pretextual. In evaluating whether an employer’s proffered reason is pretextual, this
court’s “inquiry is limited to whether there is a material factual dispute as to
whether the employer honestly believed the stated, legitimate reasons for the
adverse action.” Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006).
According to Jenkins, Lifetime based its adverse employment decisions on
Conklin’s evaluations of his performance. Jenkins argues that because Conklin
allegedly lied about having an affair, and because Lifetime relied on Conklin’s
opinion of his performance, Lifetime’s asserted non-discriminatory reason was
pretextual. This argument lacks merit because even when viewed in the light most
favorable to Jenkins, the fact that Conklin lied about having an affair does not
imply that Miller did not honestly believe that Jenkins had performance problems.
Furthermore, even if Conklin’s lie regarding the affair could support an inference
that Conklin generally lacked credibility, this too would not establish pretext. See
EEOC v. Target Corp., 460 F.3d 946, 960 (7th Cir. 2006) (holding that allegations
about an employer’s lack of credibility, like Jenkins’s vague assertion, “will not
control”). Finally, Jenkins offers no evidence suggesting that Conklin’s evaluation
of him had any influence on the ultimate decision to discharge him. In fact, Jenkins
does not dispute that Miller honestly believed that Jenkins was not performing his
job adequately.
Jenkins also argues that Lifetime’s reason for demoting and terminating his
employment “shifted repeatedly” in Miller’s interrogatories and deposition
testimony and this suffices as evidence of pretext. See Zaccagnini v. Chas. Levy
Circulating Co., 338 F.3d 672, 676-77 (7th Cir. 2003). But Miller testified
consistently that Jenkins had been demoted and terminated due to his lack of
computer skills, failure to comply with company procedures, and failure to make
appointments to sell close-outs. Because his answers were not inconsistent, this
argument has no merit.
No. 06-4427 Page 6
Finally, Jenkins offers Lifetime’s statement to the Arkansas Unemployment
Commission that “Jenkins performed as expected when assigned to Wal-Mart” as
evidence that its reason for transferring him was pretextual. Jenkins, however,
takes this statement out of context. The quoted text refers only to a question that
asks, “Had the worker performed job duties satisfactorily in the past?” Throughout
its answers, Lifetime stated that it transferred and eventually terminated Jenkins
based on his “failure to meet minimum company requirements” and refusal to use
email. Read in context, this evidence is insufficient to establish that Lifetime’s
asserted non-discriminatory reason was dishonest.
Accordingly, we AFFIRM the judgment of the district court.