88 F.4th 687
7th Cir.2023Background
- Nicholas Vichio was a night warehouse supervisor at US Foods with a strong performance record until a new vice president of operations, Charles Zadlo, was hired.
- After Zadlo’s arrival, Vichio (age 54) quickly received his first negative performance review and was placed on a performance improvement plan, then terminated within nine months.
- Vichio alleged age discrimination under the Age Discrimination in Employment Act (ADEA) after being replaced by a younger hire (age 43).
- District court granted summary judgment to US Foods, finding no evidence that Vichio’s termination was pretext for age discrimination.
- On appeal, the Seventh Circuit examined whether a reasonable jury could infer age discrimination from the evidence.
- The appellate court reversed the grant of summary judgment, deciding that Vichio presented enough evidence for his case to go to a jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper | Sufficient evidence supports age discrimination inference | Legitimate performance-based reason for termination | Summary judgment reversed; jury could find discrimination |
| Whether performance issues were pretextual | Performance criticisms arose only after Zadlo’s arrival | Vichio’s performance declined, leading to valid discipline | Evidence exists performance concerns were fabricated/pretextual |
| Immediate supervisors’ input on termination | Supervisors did not support or agree with negative feedback | Final decision was by Zadlo, not immediate supervisors | Lack of supervisor support for termination is evidence for jury |
| Relevance of “seasoned” comment in hiring | “Seasoned” meant older age and reflected age bias in replacements | Comment referenced experience, not age | Jury may infer age bias from hiring practices/comments |
Key Cases Cited
- Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016) (establishes holistic approach for discrimination inference)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for employment discrimination)
- St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) (finding that a dishonest employer justification alone can support inference of discrimination)
- Brooks v. Avancez, 39 F.4th 424 (7th Cir. 2022) (plaintiff must show satisfactory performance to establish a prima facie case)
- Hasham v. California State Bd. of Equalization, 200 F.3d 1035 (7th Cir. 2000) (explains pretext does not require reason to be false, just not the real reason)