Case Information
*1 Before W OOD , Chief Judge, B AUER F LAUM , Circuit Judges .
F LAUM Circuit Judge
. John II, brought suit alleging fi red age, violation Age Discrimination Employment Act (ADEA), U.S.C. § et seq. He employee an allegedly less than sterling performance follower corporate policy. He oldest—and most pro fi table— salesman company sells fi re trucks other ‐ rescue equipment, Temco Machinery, Inc. After Temco fi red the fi fty ‐ six year old Mullin, quickly hired two inexperienced salesmen in their twenties. Mullin brought suit, and the district court granted judgment Temco. For the following reasons, we reverse and remand.
I. Background
In 1990, Mullin, then age thirty six, began working Midwest Fire & Safety salesman. Midwest Fire & Safety the authorized dealer Indiana Pierce Manufacturing, makes custom fire trucks and other rescue equipment. In 2006, purchased Midwest Fire & Safety and retained its sales staff, including then age fifty two. As sales associate, Mullin’s responsibilities included selling fire trucks, traveling throughout assigned territory (portions of central and southern Indiana), building client relationships, and participating conventions fire department activities. Most salesmen over forty job requires depth knowledge industry products. During tenure company, typically employed between four six sales associates Indiana. handled approximately client accounts
Temco. In 2007, CEO Temco, Michael Mikoola, took account away from response criticism fire chief. In both won Salesman Year Award. presents annual award sales associate who sold most fire trucks during company’s preceding fiscal year. In sold six fire trucks, other three Indiana salesmen sold four, two, fire trucks, respectively. represented 42% total number trucks sold in Indiana and generated 56% of total profit. In 2009, sold eight fire trucks, and his three colleagues sold seven, four, and fire truck, respectively. Mullin’s sales represented 40% total number trucks sold Indiana and generated 52% total profit.
In November 2009, hired an experienced manager, Ronald Baylog, Vice President and General Manager Indiana sales division. The Indiana sales force meeting and Pierce’s expectations, relayed salesmen. executives directed Baylog evaluate and manage Indiana sales division. They hoped Baylog would improve performance, they sought assessments and recommendations. Baylog became Mullin’s immediate supervisor, role occupied through date firing.
Baylog implemented three new policies Indiana sales division. He required sales staff, including (1) complete submit weekly contact/call reports order track potential customers; (2) attend participate weekly Monday morning sales meetings; (3) help classify customers into higher ‐ lower value targets, call on them afterward. As detailed below, parties quite different accounts compliance new policies. month May important case. On May 2010, fired Indiana associate, Michael
Orrico, who fifties. On same day, hired ‐ Andrew Wolka, then twenty ‐ four years old, and told Wolka report work until May 14, 2010. Around same time, also hired Matthew Timmer, then age twenty nine. On May 13, Mullin was fired. CEO, Mikoola, told Mullin he was being fired because “[w]e paying you too much your sales.”
On May 14, next day, Andrew Wolka Matthew Timmer attended Pierce Sales Meeting Appleton, Wisconsin on behalf. had been scheduled attend annual meeting. Wolka Timmer both officially started working on May 24, 2010; Wolka began as full time sales associate Indiana, Timmer as part time sales associate Indiana because fireman. Wolka’s Timmer’s contractual responsibilities were same had been. Neither Wolka nor Timmer had any experience selling trucks, Mikoola Baylog both acknowledged depositions.
On November 8, 2010, filed charge discrimination Equal Employment Opportunity Commission (EEOC), alleging terminated age. On November submitted position paper EEOC, stating fired lack performance. alleged sales performance had declined; refused make calls or call accounts, despite instructions superiors to do so; that Mullin used his email account “to communicate with representative competing company concerning matters that were inappropriate” for someone in position. After EEOC issued Mullin right to sue letter, he filed suit U.S. District Court Southern District Indiana.
In several depositions, executives offered following characterizations events issue case. Baylog asserted that he was “absolutely” “disappointed” when Mullin allegedly failed to attend events that he was supposed to. These events were hosted “good customers” (specifically, Wayne Township Fire Department Speedway Fire Department). Mullin contests allegations, stating that he never received invitation event he attended other, which multiple other individuals confirmed. also alleged failed complete contact/call reports timely fashion, did consistently attend Monday morning meetings, more generally underperformed lacked organizational skills. CEO Mikoola expressed dissatisfaction performance, including certain Mikoola
felt had lost. When Mikoola asked when decided explained particular incident “the straw broke camel’s back.” A client, Westfield Fire Department, sent representatives visit factory, responsible leading factory visit. According Mikoola, simply “didn’t show up” work, left client “looking him” factory. “I heard later John [Mullin] got sick or something, didn’t call anybody tell anybody. It rather pretty substantial embarrassment us,” Mikoola said. According to though, serious allegation entirely inaccurate. Three Westfield Fire Department employees all testified was with them entire time did good job showing them around factory.
Finally, when asked about twenty four year old Wolka, Mikoola testified follows.
Q: What were Mr. Wolka’s strengths?
A: Well, he young individual, to put it mildly, very, very inexperienced. But he pleasant person, promised us—or I should say made some claims he would do aggressive job, get out there drive demo. He acquired CDL, Commercial Driver’s License, drive demos. And, you know, so we, you know, our thought process him he young guy, give him shot [to] drive around state showing trucks learn business.
Q: … What were Mr. Wolka’s weaknesses? A: Well, youth, gist, didn’t want to—the time commitment, wasn’t willing put time do what needed be done. He had another interests [sic], put mildly. Ultimately, moved judgment, district court granted. The district court rejected allegation had provided shifting inconsistent explanations firing—explanations claimed were pretextual. court concluded legitimate reasons be unsatisfied 13 1338 7 performance allegedly uncooperative nature. timely appealed.
II. Discussion challenges the district court’s entry of
judgment. We review the district court’s decision de novo, construing all facts drawing reasonable inferences light most favorable non moving party. Good v. Univ. Chi. Med. Ctr. , 673 F.3d 670, 673 (7th Cir. 2012). Summary judgment appropriate if there is no genuine issue any material moving party entitled judgment matter law. Fed. R. Civ. P. 56; Fleishman v. Continental Cas. Co. , F.3d (7th Cir. 2012). contends fired him because age, violation ADEA. The ADEA prohibits an employer from “discharg[ing] any individual … such individual’s age.” U.S.C. § 623(a)(1); see U.S.C. § 631(a) (limiting protections those over forty years old). To establish an ADEA violation, “an employee must show age actually motivated adverse employment action. Put differently, must have played role employer’s decision making process determinative influence outcome.” Van Antwerp City Peoria, Ill. , F.3d (7th Cir. 2010) (citations omitted).
We previously explained employee may prove discrimination through direct or indirect methods proof. Fleishman 603. has pursued direct method, itself can be proved through direct evidence circumstantial evidence. Direct evidence requires employer admit discriminatory intent (e.g., “smoking gun” case). Id. far more common *8 8 13 1338 case relies on circumstantial evidence, “allows the trier ‘to infer intentional discrimination by the decisionmaker.’” Hanners v. Trent , 674 F.3d 683, 691 (7th Cir. 2012) (quoting Rudin v. Lincoln Land Cmty. Coll. , 420 F.3d 712, 720 (7th Cir. 2005)). Circumstantial evidence typically includes “(1) suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed other employees the protected group; (2) evidence, whether or not rigorously statistical, that similarly situated employees outside the protected class received systematically better treatment; (3) evidence that the employee qualified for the job question passed over favor a person outside protected class employer’s reason is a pretext discrimination.” Sun v. Bd. Trs. Univ. Ill. , 473 F.3d 799, 812 (7th Cir. 2007). Circumstantial evidence “must point directly discriminatory reason employer’s action.” Van Antwerp , F.3d 298 (citation internal quotation marks omitted). At bottom, we recently emphasized, plaintiff seeking survive summary judgment must produce enough evidence that rational jury could conclude that employer took adverse action against plaintiff member protected class. ‐ Applying these principles, reasonable jury could conclude Temco fired of age. has put forth ample circumstantial evidence, including examples of suspicious timing ambiguous statements. Moreover, each of Temco’s alleged reasons firing is either genuinely contested, seemingly inaccurate, both. first piece circumstantial evidence suspicious timing personnel changes. On May 5, fired one fellow salesmen, Michael Orrico, who in fifties. On same day, company hired twenty ‐ four year old, Wolka, told him report work until May 14. Around this time, hired twenty nine year old, Timmer. On May company fired fifty six year old Mullin. The next day, Wolka Timmer represented at Pierce’s annual meeting, filling position would held. Soon after, both men officially went payroll. Of course, companies must be able hire employees. But case, highly experienced relatively successful salesman fired precisely time company hired “very inexperienced” men who never been sales.
The immediate temporal connection between personnel decisions sort has previously raised some concern. For example, Filar Board Education Chicago (7th Cir. 2008), school experienced funding shortfall needed demote teacher. The principal then engaged “a flurry personnel decisions,” quickly promoting every teacher except sixty nine year old plaintiff. Id. 1058. plaintiff thereby became “least senior” teacher demoted, even though she 1338 was more qualified than some of her colleagues. Id. The court found “the timing of [the principal’s] decisions” factor in its decision to reverse judgment remand trial. Id. 1064; see Piraino Int’l Orientation Res., Inc. , (7th Cir. 1996) (promulgating maternal leave policy immediately after employee mentioned she pregnant). As in Filar we are potentially troubled flurry personnel changes operate to detriment much older, more qualified employee.
The hiring Wolka Timmer arguably more suspicious given went great lengths emphasize how “old” employees are. For instance, testified “at where should been his prime … . [I]t’s best time in salesperson’s life [—] between say their most productive years. Those people you search out try hire.” Yet immediately after firing (and another man fifties), hired two men their twenties who were “very, very inexperienced.” The district court described developments as “potentially suspicious.” And after described firing financial decision, certainly unusual hire two people no experience nearly same compensation reigning time Salesman Year.
The next category circumstantial evidence consists Mikoola’s ambiguous statements about age. parties dispute importance interpretation Mikoola’s references Wolka’s age. Mikoola asked Wolka’s strengths weaknesses. In answers both questions, Mikoola mentioned Wolka’s youth. In addition, question about Wolka’s strengths, Mikoola commented, “our ‐ thought process on him a young guy, give him a shot [to] drive around the state showing trucks learn the business.” district court found that, context, Mikoola’s comments suggested that perceived Wolka’s as a weakness; that is one reasonable interpretation, it is not the only one. Because Wolka’s youth explicitly part “thought process” hiring him, the record is least ambiguous. A jury is the appropriate body evaluate the significance statements.
Next, respect alleged reasons for firing argues company’s justifications shifting, inconsistent, pretext discrimination. To demonstrate material issue pretext, must show “either (1) is more likely discriminatory reason motivated employer than proffered non discriminatory reason (2) an employer’s explanation not credible.” Hudson v. Chicago Transit Auth. , F.3d (7th Cir. 2004). A mere mistake an employer does not constitute pretext; instead, pretext “is phony excuse.” Id. Where an employer proffers “more than reason challenged action, plaintiff must address all employer’s suggested reasons.” Id. But court will reexamine business decisions “super personnel department”; instead, important consideration “whether employer gave honest explanation its behavior.” Id. (citation omitted). Finally, if employer changes story, constitutes “evidence pretext, entitles [the plaintiff] trial issue reason termination.” Stalter Wal Mart Stores, Inc. (7th Cir. 1999) (citations omitted). ‐
Applying these concepts, each Temco’s alleged reasons firing either genuinely contested, seemingly inaccurate, both. Certain Temco’s alleged reasons raise potential credibility issues, jury should resolve.
Initially, Temco CEO Mikoola told was being fired financial reasons: “We paying you too much your sales.” Temco did not offer reduce Mullin’s salary. It did hire two new employees, who had precisely same job description Mullin. Neither possessed any experience, yet was paid $48,000 work part ‐ time, while other was paid $42,000 work full ‐ time handle some territory had handled. salary had been $56,400. If we credit Mikoola’s explanation, personnel decisions seem puzzling. also suggested not replaced young salesmen Temco split up territory among three people: an existing salesman, twenty four year old novice (Wolka), sixty five year old named John Erlandson. Yet according Mikoola, Erlandson actually handyman. He had never sold truck, never paid commission (as company’s salesmen were), not sales role when Mikoola testified. Erlandson may never actually become sales associate. However, records list him such note age, sixty five. Indeed, before EEOC, relied upon Erlandson’s hiring computing average its salesmen. This may be innocuous administrative error, might be. just fired its oldest associate. A rational jury could conclude then sought “even out” ages salesmen its new hires.
Another factor motivating Mullin’s firing Baylog’s stated view that Mullin had let down important customers by failing to attend client events. Mullin’s contractual responsibilities included attending such events. It allegedly very disappointing, to Baylog customer alike, when Mullin failed to attend Speedway Fire Department event. According to Baylog, had planned attend this event, then told that “accidentally turned wrong way” highway could not make it a result. Baylog’s account is contested. testified fact attended this event, three Speedway employees gave depositions confirming attendance.
An additional factor motivating firing—indeed, “straw broke camel’s back” Mikoola—was “embarrass[ing]” incident allegedly failed show up work, leaving several visitors wander around plant unsupervised. That account is contested, too. The visitors each gave depositions confirming them all times gave them a good tour. district court correctly troubled allegation, stating “leaned toward a ‘phony excuse.’” Of course, mere mistake not pretext. Hudson 561. But enough inaccuracies might allow jury make reasonable inferences about credibility.
Lost sales played role firing, according Mikoola. Lost sales are obviously significant evaluating salesman, especially trucks high ‐ volume consumer item, so each lost sale might matter great deal. However, Mikoola acknowledged loses fairly regularly—“it just of, you know, market.” He also said that each Mullin’s colleagues had lost sales, but none had been fired as result. Furthermore, Mullin has contested the allegation that lost sales, arguing that lost sales resulted from Mikoola’s explicit directions respect price. A CEO may choose to scapegoat; but when CEO points conduct as grounds termination, it is less credible if employee was simply (or allegedly) following CEO’s instructions. Therefore, there is significant disputed on this ground, such issues credibility not resolved judgment.
More generally, company claims that Mullin underperformed. Temco asserts performance declining, position Mullin contests. After leading his colleagues fiscal year sales, Mullin again leading them prior his termination. Temco discounts his Salesman Year Awards, arguing “best” territory should sold more trucks, especially compared his allegedly underachieving colleagues. Mullin disputes characterization his territory most desirable market, this dispute material: if characterization inaccurate, it would enhance qualifications compared his somewhat younger colleagues whom did fire. Mullin oldest salesman during tenure Temco. claims failed submit call reports timely fashion. disputes allegation. Two email exchanges between suggest late those particular occasions, company’s allegations seem more wide ranging than that. faces evidentiary challenge here: claims Mullin failed to submit his call reports promptly, yet it has destroyed those reports. “An employer’s destruction of or inability to produce document, standing alone, does warrant an inference that document, if produced, would contained information adverse to employer’s case.” Park City of Chi. (7th Cir. 2002). Nonetheless, Mullin correctly asserts that Temco’s destruction evidence deprives him of opportunities to demonstrate his compliance compare his performance with colleagues. At judgment stage, we accept Mullin’s version facts.
Finally, suggests insubordinate failing attend Monday morning meetings consistently, Baylog required associates. response three fold. First, testified everyone missed these meetings from time time, Baylog included. Given ‐ person nature industry, requires travel, inevitable salesmen would occasionally miss Monday morning meetings or need reschedule them. Second, he argues fact attended these meetings, except when with customer or Pierce factory Wisconsin. business selling trucks, certain fire departments met on Monday mornings. If could get agenda during departments’ meetings, he—and therefore Temco—had better chance selling. Third, according never expressed any dissatisfaction with job related absences or need reschedule meetings. Thus, parties genuinely contest the merits this alleged justification as well. contests allegation communicated
inappropriately representative from another company. Because has produced allegedly inappropriate email corroborating allegation, we accept argument stage.
Standing alone, none incidents, events, alleged justifications would likely suffice survive summary judgment. In combination, however, they point string questionable conduct, from suspicious timing personnel decisions ambiguous statements about multiple seemingly inaccurate allegations. genuinely contests all accusations. He has put forth sufficient evidence jury should resolve many material factual questions, as well credibility issues underlying them. Of course, we express no view ultimate merit claims. When, here, “facts susceptible interpretations,” Supreme Court has cautioned against granting judgment “too readily.” Filar (citation internal quotation marks omitted).
III. Conclusion
For foregoing reasons, we R EVERSE R EMAND .
[1] no longer works Temco. He voluntarily retired December 2010.
[2] For instance, Baylog said Wolka, “he very green no knowledge our products no knowledge really how work territory.” Similarly, said Timmer, “he’s young guy, didn’t any experience.”
[3] See, e.g. , Hitchcock v. Angel Corps, Inc. , F.3d (7th Cir. 2013) (citing, inter alia, Coleman Donahoe (7th Cir. 2012) (Wood, J., concurring) (“In order defeat judgment, plaintiff way other must present evidence she class protected statute, she suffered requisite adverse action (depending on her theory), rational jury could conclude employer took adverse action account her protected class, any noninvidious reason.”)).
[4] Indeed, there additional disputed concerning whether records were destroyed before after filed charge discrimination EEOC.