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August 9, 1989


Harry D. Leinenweber, United States District Judge.

The opinion of the court was delivered by: LEINENWEBER


 This case is before the court on the motion of defendant, Sears Roebuck and Co. ("Sears"), for summary judgment on the complaint of plaintiffs, Ogden Kilgore ("Kilgore"), Donald Lorang ("Lorang"), Arylene Watlington ("Watlington"), and Joseph Kuligoski ("Kuligoski"). For the reasons herein stated, the motion is granted.

 Joseph Kuligoski

 Kuligoski worked for Sears for some twenty-eight years. On June 5, 1985 he was fired at the age of fifty-five. Kuligoski alleges that this discharge violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1988), which states in pertinent part that "it shall be unlawful for an employer to . . . discharge any individual . . . because of such individual's age." Id. at § 623(a)(1).

 Sears moves for summary judgment on the grounds that no reasonable jury could return a verdict for Kuligoski based upon the evidence in the record. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In order for a jury to return a verdict for Kuligoski it would have to reasonably find that age was a determining factor in Kuligoski's discharge. La Montagne v. American Convenience Prdts., Inc., 750 F.2d 1405, 1409 (7th Cir. 1984).

 Kuligoski bears the burden of proving such discrimination. Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 545 (7th Cir. 1988), cert. denied, 491 U.S. 907, 109 S. Ct. 3191, 105 L. Ed. 2d 699 (1989). He may discharge this burden either by producing direct evidence of discrimination, or by utilizing the indirect burden-shifting method of proof, originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and later adapted to age discrimination claims. See Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988). Kuligoski offers evidence under the latter method.

 In the indirect method of proof the employee has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If he succeeds in so doing a rebuttable presumption of discrimination arises, id. at 254 n. 7, and the burden then shifts to the employer to articulate some legitimate, non-discriminatory reason for its action. Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1364 (7th Cir. 1988). If the employer succeeds in producing such a reason the burden of production shifts back to the employee who must then prove by a preponderance of the evidence that the legitimate reasons offered by the employer were not its true reasons but rather a pretext for discrimination. Id.

 The first three elements of the prima facie case which Kuligoski must prove are that (1) he was in the protected class (40 or older); (2) his job performance met his employer's legitimate expectations; and (3) he was discharged or demoted. Id. The parties disagree and the precedent is inconsistent as to what the fourth element should be. Kuligoski claims, and at least three cases in the Seventh Circuit have held, that the plaintiff only needs to prove that the employer "sought a replacement" for the plaintiff. Mechnig, 864 F.2d at 1364 n. 5. Sears claims, and at least three cases in the Seventh Circuit have held, that the plaintiff needs to show that he was "replaced by a younger person," which is a much stricter standard. Id. The Seventh Circuit has twice declined to resolve this inconsistency. Weihaupt v. American Medical Ass'n., 874 F.2d 419, 427 n. 2 (7th Cir. 1989); Mechnig, 864 F.2d at 1364 n. 5. Because Kuligoski's case and those of his co-plaintiffs turn on other factors, it makes no difference that the court here applies the former standard.

 Kuligoski's age, fifty-five, places him within the protected class. Moreover it is undisputed that he was discharged and replaced. Thus the crucial issue is whether he can establish by a preponderance of the evidence that his job performance satisfied Sears' legitimate expectations. Dale v. Chicago Tribune Co., 797 F.2d 458, 463 (7th Cir. 1986), cert. denied, 479 U.S. 1066, 93 L. Ed. 2d 1002, 107 S. Ct. 954 (1987). This factor envisions a bifurcated inquiry, i.e., (1) whether the employer's expectations were legitimate, and (2) if so, whether the employee was meeting those expectations. Id. As to the first prong of this inquiry the court must determine whether the employer communicated its expectations to the employee and whether those expectations were unreasonable. Id. There is ample evidence in the record that Sears repeatedly warned Kuligoski not to engage in altercations with fellow employees and customers, and to otherwise follow company rules. Kuligoski does not contend that these expectations were unreasonable and the court sees no reason to conclude otherwise.

 Thus summary judgment turns on whether, based on the evidence presented, a jury could reasonably find by a preponderance of the evidence that Kuligoski was meeting Sears' expectations. Sears has introduced substantial evidence that despite its repeated warnings, Kuligoski continued to violate company rules and act abusively toward fellow workers and employees. It points to numerous oral reprimands and written "deficiency memoranda" issued to Kuligoski that document these violations. It also points to deposition testimony in which Kuligoski repeatedly admits engaging in the activities that gave rise to many of these reprimands and memoranda.

 Kuligoski's response is that the memoranda and reprimands he received have no basis in fact and were fabricated over a two-year period, from 1983 to 1985, for the sole purpose of justifying his termination. He supports this claim by introducing evidence that: (1) he received a courtesy award just prior to his termination; (2) his pre-1983 supervisor, Randolyn Johnson ("Johnson"), once stated that she "had no real problems with him."; (3) a co-worker, Judy Howard, testified that she had only one argument with him; and (4) a co-worker, Bernice Pulio ("Pulio"), stated that there were no problems with his work on orders she handled and that she had no knowledge of arguments or run-ins with fellow employees. He further notes that at the time he was fired he was one of the store's leading salesmen.

 The evidence is not sufficient to preclude summary judgment for several reasons. First, it does not refute nor even address the numerous instances of misconduct to which Kuligoski has already admitted. Second, it offers little proof as to whether Kuligoski was performing adequately at the time he was discharged. The courtesy award was given for Kuligoski's work with only one customer and is not evidence of the overall quality of his work. Johnson did not work with Kuligoski after 1983; Pulio did not work with Kuligoski full time. In any event, Johnson and Pulio's assessments of Kuligoski's performance are insufficient to impeach the legitimacy of Sears' expectations. Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir. 1980), cert. denied, 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct. 1418 (1981). The sales totals, while obviously an important part of a salesman's performance, are not the sole criterion by which such performance is measured, and certainly do not refute Sears' claims of Kuligoski's abusive behavior and rule violations.

 Perhaps most important, the court notes that the question before it

"is not whether the company's methods were sound, or whether its dismissal of [plaintiff] was an error of judgment. The question is whether he was discriminated against because of his age. Although an employer may not make unreasonable expectations, and must make the employee aware of just what his expectations are, beyond that the court will not inquire into the defendant's method of conducting its ...

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