Zaccagnini, John v. Chas Levy ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3484
JOHN ZACCAGNINI,
Plaintiff-Appellant,
v.
CHAS. LEVY CIRCULATING CO.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01-C-4304—Matthew F. Kennelly, Judge.
____________
ARGUED FEBRUARY 11, 2003—DECIDED JULY 29, 2003
____________
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. John Zaccagnini, who was dis-
charged due to a reduction-in-force, claims that his former
employer, Chas. Levy Circulating Company (CLCC), failed
to rehire him in violation of the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. The district court
granted CLCC’s motion for summary judgment, finding
that Zaccagnini could not show that CLCC’s proffered legit-
imate, nondiscriminatory reason for not rehiring him was
a pretext for age discrimination. We find that Zaccagnini
has established a prima facie case of discrimination and
that CLCC’s inconsistent explanations for its decision not
2 No. 02-3484
to rehire Zaccagnini call the credibility of its proffered non-
discriminatory reason into question. Because we cannot say
that no reasonable jury could conclude that CLCC’s expla-
nations are a pretext for age discrimination, we reverse the
judgment of the district court.
I. BACKGROUND
CLCC is a wholesaler of printed media that employs truck
drivers to distribute newspapers, magazines, and paperback
books to retail stores throughout the Chicago area.
Zaccagnini began working for CLCC in October 1994, and
it is undisputed that he satisfactorily performed his duties
as a driver for the company. On March 19, 1997, CLCC
discharged Zaccagnini pursuant to a reduction-in-force
(RIF).1 At that time, Zaccagnini was 51 years old, and the
ten other drivers subject to the RIF ranged in age from 23
to 45. When Chuck Lynch, the vice president of operations
at the time of Zaccagnini’s discharge, informed Zaccagnini
that he was being laid off, Zaccagnini said that he would
like to be rehired should the company’s need for drivers
change. According to Zaccagnini, Lynch responded that if
CLCC were in the position to hire drivers in the future, he
would rehire Zaccagnini. A few months later, CLCC’s
business improved and the company hired four new drivers:
Angel Rodriguez (age 30), Andrea Staten (age 35), Orion
Hecker (age 31), and Jimmy Santiago (age 32).
Zaccagnini filed a grievance with his union, Local 706,
claiming that he should have been rehired when CLCC
hired Rodriguez, Staten, and Hecker.2 (As of the date of
Zaccagnini’s grievance, CLCC had not hired for its fourth
1
This was apparently the first RIF in the history of CLCC.
Zaccagnini does not challenge here his discharge in the RIF.
2
Zaccagnini was the only employee laid off in the March 1997
RIF who sought to be rehired by CLCC.
No. 02-3484 3
driver position.) In response, Kevin King, CLCC’s delivery
manager, scheduled a meeting with Zaccagnini, Lynch, and
Tony Judge, Sr., the union’s secretary treasurer. King later
summarized this meeting in a letter to Judge, stating that
(1) the group had reviewed Zaccagnini’s layoff; (2) “[t]he
company has the right to re-call or not re-call drivers”; and
(3) “[n]o laid off driver has been recalled [n]or are their [sic]
plans to recall any of them.” The union subsequently denied
Zaccagnini’s grievance. CLCC’s fourth new driver, Jimmy
Santiago, was hired on October 6, 1997.
Zaccagnini filed a claim with the Illinois Department of
Human Rights (IDHR) and then filed suit in federal court,
alleging that CLCC’s decision not to rehire him constituted
age discrimination under the Age Discrimination in Em-
ployment Act (ADEA), 29 U.S.C. § 621 et seq. CLCC moved
for summary judgment, claiming that Zaccagnini had not
established a prima facie case under the ADEA because he
failed to show that he applied for an available driver
position and because he was not similarly situated to
Rodriguez, Staten, Hecker, and Santiago. The district court
concluded that Zaccagnini established a prima facie case of
age discrimination, but it granted summary judgment in
favor of CLCC after finding that Zaccagnini could not show
that the company’s legitimate, nondiscriminatory reason for
its decision not to rehire Zaccagnini was pretextual.
Zaccagnini appeals.
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo, viewing the facts in the light most favorable to
Zaccagnini, as the nonmoving party, and drawing all rea-
sonable inferences in his favor. Krchnavy v. Limagrain
Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002). Because
Zaccagnini does not have direct evidence of age discrimi-
nation, he must proceed under the familiar burden-shifting
4 No. 02-3484
framework set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973). See O’Connor v. Consol. Coin Caterers
Corp., 517 U.S. 308, 311 (1996) (assuming that the
McDonnell Douglas framework applies in the ADEA
context).
To establish a prima facie case under the ADEA,
Zaccagnini must show that (1) he is a member of the
protected class (age forty or older); (2) he applied for and
was qualified for the position he sought; (3) CLCC rejected
him; and (4) CLCC hired another similarly situated individ-
ual for the position who was substantially younger than
Zaccagnini. See Ritter v. Hill ‘N Dale Farm, Inc., 231 F.3d
1039, 1045 (7th Cir. 2000). If Zaccagnini establishes a
prima facie case, then the burden shifts to CLCC to articu-
late a legitimate, nondiscriminatory reason for its decision
not to rehire him. See Grayson v. City of Chicago, 317 F.3d
745, 748 (7th Cir. 2003). If CLCC asserts a legitimate,
nondiscriminatory explanation, the burden returns to
Zaccagnini to show that the company’s proffered reason is
merely a pretext for age discrimination. Id.A. Prima facie case
On appeal, CLCC renews its argument that Zaccagnini
has not met his burden of establishing a prima facie case,
asserting that he has not shown he applied for the position
under the second prong, nor that he was similarly situated
to the other new hires, as is required under the fourth
prong.3 The gravamen of CLCC’s challenges to Zaccagnini’s
prima facie case is that Zaccagnini was not referred by the
union, so he could not have been an applicant or similarly
situated to other union-recommended candidates for the
3
The first and third prongs—that Zaccagnini is over forty and
that CLCC failed to rehire him—are not in dispute.
No. 02-3484 5
position. Analysis of CLCC’s union-hiring rationale more
properly belongs in our analysis of this proffered explana-
tion for its hiring decision, see E.E.O.C. v. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1194-95 n.7 (10th Cir.
2000), so we will put this question aside for the moment
and first consider CLCC’s arguments that bear more di-
rectly on the prima facie case.
Zaccagnini’s grievance with the union satisfies the
requirement that he show he applied to be a driver.
Zaccagnini filed the grievance on August 31, 1997, more
than a month before CLCC filled its last driver position.
CLCC admits that Zaccagnini’s “grievance asserted
that . . . he felt he should be next to be rehired.” Def. Br. at
19 n.4. What is more, Zaccagnini discussed his grievance
with CLCC management and union officials on September
30th, more than a week before Santiago was hired, and
King’s letter summarizing the meeting indicates that the
group discussed Zaccagnini’s desire to be rehired.4 Under
the circumstances, we believe that Zaccagnini’s grievance
satisfies his burden to show he applied for the driver
position.
With respect to the fourth prima facie element, CLCC
contends that Zaccagnini was not similarly situated to the
four men hired for the driver positions because those new
hires, unlike Zaccagnini, were not involved in the RIF. In
determining whether two or more individuals are similarly
situated, we have centered our analysis on characteristics
such as education, experience, performance, qualifications,
4
We also note that it is unclear exactly what else Zaccagnini
should have done to “apply” for a position with CLCC. Angela
McLeod, a member of CLCC’s human resources department at the
time, testified that “when [candidates] came in for interviews,
they filled out applications,” R.13, Ex. J at 8, but Zaccagnini was
never called for an interview, so we are unsure whether he ever
had the opportunity to complete a formal application.
6 No. 02-3484
and conduct. See Balderston v. Fairbanks Morse Engine
Div. of Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003).
CLCC’s citation to Radue v. Kimberly-Clark Corp., 219 F.3d
612, 618 (7th Cir. 2000), is not to the contrary. In Radue,
we found that involvement in the RIF was relevant when
the plaintiff claimed that younger employees who were sub-
ject to an RIF were being transferred to available positions,
while older employees, subject to the same RIF, were not.
Id. at 615. Here, unlike Radue, the pool of applicants for the
new driver positions was not limited to CLCC employees
subject to the RIF, so Zaccagnini’s membership in the RIF
is not a relevant factor in considering whether he is simi-
larly situated to the four new hires. See Balderston, 328
F.3d at 321 (explaining that the similarly situated prong is
modified in RIF cases when the employer decides who will
be rehired from a defined group); see also Taylor v. Canteen,
69 F.3d 773, 779 (7th Cir. 1995) (Plaintiffs in RIF cases
“bear no heavier a burden of proof than other ADEA plain-
tiffs.”). That Zaccagnini was similarly situated to the new
hires with respect to relevant qualities such as experience,
performance, and qualifications, is undisputed and is
factually supported by his three years of satisfactory work
performance as a driver for CLCC. See Ghosh v. Ind. Dep’t
of Envt’l Mgmt., 192 F.3d 1087, 1091 (7th Cir. 1999) (hold-
ing that the similarly situated prong is satisfied where the
hired employees “had similar or lesser qualifications for the
job” than the plaintiff).
B. Legitimate, nondiscriminatory reason
Because Zaccagnini has established a prima facie case of
age discrimination, CLCC next carries the burden of articu-
lating a legitimate, nondiscriminatory reason for not hiring
Zaccagnini. See McDonnell Douglas, 441 U.S. at 802. On
appeal, CLCC defends its decision not to rehire Zaccagnini
with the explanation that “he was not rehired because the
Company had a practice of hiring only those individuals
No. 02-3484 7
who were referred by the Union,” Def. Br. at 21, and
Zaccagnini was not so recommended. Because this reason is
at least “facially legitimate,” the burden now reverts to
Zaccagnini to demonstrate that it is a pretext for discrimi-
nation. See id. at 804.
C. Pretext
To establish pretext, Zaccagnini must show either that
CLCC was motivated by a discriminatory reason or that
CLCC’s proffered reason is unworthy of credence. See, e.g.,
McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 372 (7th
Cir. 1992). “Because a fact-finder may infer intentional
discrimination from an employer’s untruthfulness, evidence
that calls truthfulness into question precludes a summary
judgment.” Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir.
1995). So Zaccagnini may avoid summary judgment by
pointing to specific facts that place CLCC’s explanation in
doubt. See, e.g., Schuster v. Lucent Techs., 327 F.3d 569, 578
(7th Cir. 2003).
In its initial briefing before the district court and during
discovery, CLCC maintained that Zaccagnini was not
rehired because the company had a policy not to rehire
workers who had been laid off. Zaccagnini argues that
CLCC’s current argument—that Zaccagnini was not rehired
because he was not referred by the union—is unworthy of
credence because CLCC did not rely on this second explana-
tion until its reply brief at summary judgment. We agree.
From the beginning, CLCC appeared to explain its decision
not to rehire Zaccagnini by the existence of a policy not to
rehire drivers who were laid off. In his deposition,
Zaccagnini testified that this was the reason provided to
him during the grievance hearing: “It was a meeting in the
office saying that they were not going to rehire me. It was
their policy not to rehire. That’s what I remember.” R.13,
Ex. B at 68. Similarly, Chris Eckert, CLCC’s then-human
8 No. 02-3484
resources coordinator, stated to the Illinois Department of
Human Rights that “its [sic] been [CLCC’s] practice not to
rehire permanently laid off drivers.” That this reason was
provided at these early stages is relevant to our inquiry: the
consistency of the explanation provided by an employer at
the time of an employment decision and in an administra-
tive proceeding is evidence of the veracity of the employer’s
explanation at summary judgment. See Stalter v. Wal-Mart
Stores, Inc., 195 F.3d 285, 291 (7th Cir. 1999); Perfetti v.
First Nat’l Bank of Chicago, 950 F.2d 449, 456 (7th Cir.
1991).
CLCC’s reliance on its no-rehire policy explanation was
made even more explicit in its written discovery responses.
CLCC responded as follows to Zaccagnini’s interrogatory
requesting the reasons for its decision not to rehire him:
Interrogatory No. 3: Please state whether or not
John Zaccagnini was considered for rehiring by
CLCC at or around the time that CLCC made the
[new] hires . . ., and if so, please state all the
reasons why Zaccagnini was not rehired; if not,
please state all the reasons why Zaccagnini was not
considered.
Response: Zaccagnini was not considered for rehire
by CLCC in or around the Fall of 1997 because
there are no recall rights in the applicable collective
bargaining agreement and, therefore, laid off
employees were not considered by the company. In
addition, there is no historical practice of recall of
laid off drivers.
This answer did not mention limiting hiring to union
candidates as a rationale for not rehiring Zaccagnini.
Furthermore, as the district court noted, CLCC’s opening
brief in support of its motion for summary judgment focused
on its no-rehire explanation for its failure to rehire
No. 02-3484 9
Zaccagnini. See Zaccagnini v. Chas. Levy Circulating Co.,
No. 01 C 4304, at *1-2 (N.D. Ill. Aug. 23, 2002) (“Defen-
dant’s opening brief mentioned the point in passing, and it
was not until the reply that it was relied upon prominently.
Plaintiff reasonably could have read defendant’s opening
brief as relying only on a single rationale—a purported ‘no
rehire’ policy.”).5 Indeed, CLCC’s brief made clear that it did
not even rely on the union-hiring rationale as a secondary
explanation, noting instead that “even if there had not been
a no-rehire policy, King was not aware of Zaccagnini’s
interest in rehire. . . .”
For the first time in its reply brief at summary judgment,
CLCC made clear that it was offering another explanation
for its decision not to rehire Zaccagnini: the company has a
practice of only hiring drivers through the union and
Zaccagnini was not referred by the union. The fact that this
explanation did not arise until CLCC’s reply brief may be
enough in and of itself to preclude summary judgment for
CLCC on this issue, since a jury could reasonably find that
its failure to come forward with this explanation earlier
makes it not credible. See O’Neal v. City of New Albany, 293
F.3d 998, 1005-06 (7th Cir. 2002) (finding that the changed
reasoning of the employer was sufficient to preclude
5
CLCC argues that the union-hiring rationale was sufficiently
disclosed in the deposition testimony of King and McLeod. Both
mentioned that the drivers CLCC hires typically come from the
union. While CLCC may rely on the union for most of its candi-
dates, this may not have been the reason for not rehiring
Zaccagnini. See Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 634
(7th Cir. 1996). Therefore, there is no reason to believe that mere
references to union involvement in hiring was sufficient notice
that CLCC intended to rely on this fact as an explanation for its
hiring. See Ghosh, 192 F.3d at 1094 (“[V]ague references to a
claim contained in large amounts of discovery do not constitute
sufficient notice.”).
10 No. 02-3484
summary judgment because a trier of fact could reasonably
infer from that evidence that the defendants’ proffered
reasons were pretextual); Stalter, 195 F.3d at 291 (“[Defen-
dant] changed its story between the time of the state
administrative proceeding and the federal action. . . . Under
our case law, this changed story is evidence of pretext, and
entitles [plaintiff] to a trial on the issue of the reason for his
termination.”); Emmel v. Coca-Cola Bottling Co., 95 F.3d
627, 634 (7th Cir. 1996) (finding the fact that defendant did
not express an explanation for failure to promote earlier
despite several opportunities to do so compelling); Perfetti,
950 F.2d at 456 (holding that when an employer gives one
reason at the time of the adverse employment decision and
another at trial that is unsupported by the evidence, “the
jury could reasonably conclude that the new reason was a
pretextual after-the-fact justification”). We find CLCC’s
reliance on this explanation beginning at such a late date
in the proceedings to be “fishy,” see Russell v. Acme-Evans
Co., 51 F.3d 64, 70 (7th Cir. 1995), but here a jury could
rely on additional evidence to find this explanation to be
pretextual.
Along with the shifting nature of CLCC’s justification,
Zaccagnini has put forward evidence that calls both CLCC’s
no-rehire and union-hiring rationales into question. For
example, with respect to its no-rehire explanation, Tony
Judge, the officer for Local 706 who CLCC claims supplies
all of its applicants, testified that he never told CLCC that
the union objected to CLCC’s hiring a previously laid-off
employee (“Absolutely not.”). When asked how CLCC could
have concluded that rehiring a worker would be problem-
atic, he testified: “I don’t know where they could have ever
gotten that at all. That was never discussed. It was never,
ever, ever brought up. I have been—I have been an agent
and a union officer for that union since 1957. That was
never brought up with any of our employees.” R.13, Ex. E
at 10. Additionally, CLCC’s human resources policy explic-
No. 02-3484 11
itly allows for the rehire of former employees: “It is the
policy of the company to review former employees for rehire
on a case by case basis. Under certain circumstances it is in
the best interest of the company to rehire a former
employee.”6 That a material fact may exist as to the policy
of rehiring former drivers is further demonstrated by
Lynch’s offer to rehire Zaccagnini if another position
became available. Although this assurance is not suffi-
ciently concrete to constitute an offer, in combination with
other evidence it may indicate some flexibility in the
company’s rehire policies.
Moreover, CLCC’s response to written discovery conflicts
with its explanation that all drivers are hired through the
union. In addition to his interrogatory requesting the
reasoning for CLCC’s decision not to hire him, Zaccagnini
also served CLCC with an interrogatory asking for all of the
ways in which CLCC recruits drivers. CLCC’s response does
not limit its methods for obtaining candidates to referrals
from the union:
Interrogatory No. 6: Please state all methods used
by CLCC to recruit applicants for drivers and/or
auxiliary drivers in 1997 (including any means by
which CLCC let it be known that it was considering
hiring). . . .
Response: Word of mouth, referrals from Teamsters
Local #706 and walk-ins.
“Answers to interrogatories are evidence.” Emmel, 95 F.3d
at 635. We have repeatedly emphasized the importance of
providing full and complete interrogatory answers. See
Fortino v. Quasar Co., 950 F.2d 389, 398 (7th Cir. 1991)
6
CLCC argued that driver positions are not covered by this pol-
icy, but instead are subject to the terms of a contractual bargain-
ing agreement with the union, but that agreement is silent as to
the rehire of former drivers.
12 No. 02-3484
(noting that Fed. R. Civ. P. 26 requires a party to supple-
ment an interrogatory answer when it is no longer true and
failure to amend is in substance a knowing concealment).
Here, CLCC’s answer makes clear that, at the very least,
not all driver candidates come from the union. The same
point was also indicated in the IDHR’s investigation, which
reported that CLCC’s “practice was to contact the Union
hall and inform the Union of a vacancy. . . but, because of
the volume of applicants produced from walk-ins and
advertisement[s], contacting the Union for applicants was
rare.” Given the differences between CLCC’s interrogatory
answer, the IDHR report, and its argument that CLCC has
a policy or practice of hiring drivers whose names are
provided by the union, a jury could decide CLCC’s explana-
tion was pretextual. Emmel, 95 F.3d at 635 (finding that
when company’s plausible explanation differed from
response to an interrogatory, the jury could conclude that
the “justification had been concocted in preparation for trial
to fit the available facts”).
Faced with the weaknesses in its two explanations, CLCC
now attempts to slice its justification even thinner by
proposing that even if not all hires in 1997 came from the
union, the four new hires brought on by King were all hired
as a result of referrals from the union.7 CLCC moves away
from its argument that the company actually had a policy
7
CLCC also makes an effort to explain the discrepancy between
the interrogatory answer, the IDHR report, and its practice of
hiring from the union by stating that it uses advertisements and
discusses job openings with walk-ins to recruit job applicants, but
it only hires individuals who the union recommends. We do not
find this explanation satisfactory. When asked at oral argument
why CLCC would ever need to recruit if all of its candidates were
supplied by the union, CLCC fell back on the above explana-
tion—that regardless of how others were hired, King only looked
to the union for candidates.
No. 02-3484 13
of hiring only from the union, and instead focuses only on
the hiring for the new drivers. As an initial matter, this
seems different enough from the reason put forward in
its brief to the district court and to this court to constitute
yet another change in explanation. CLCC has not denied
that King was employed by CLCC at the time Interrogatory
No. 6, the interrogatory explaining CLCC’s recruitment
policy, was answered. Any clarification about its hiring and
recruitment policies could have been provided at the time
CLCC’s response was drafted. Additionally, it is too late in
the day for CLCC to offer further modification of its reason-
ing and still prevent the case from going to the jury. We
believe this case is one “in which the multiple grounds
offered by the defendant for the adverse action . . . are so
intertwined, or the pretextual character of one of them so
fishy and suspicious, that the plaintiff [can] withstand
summary judgment.” Russell, 51 F.3d at 70; see also O’Neal,
293 F.3d at 1005-06 (summary judgment precluded when no
contemporaneous documents discussed employer’s second
explanation and plaintiff was not informed of it at the time
of the employment action).
Finally, CLCC suggests that we should discount
Zaccagnini’s evidence challenging CLCC’s proffered expla-
nation because he has not provided any evidence pointing
to age as a factor in CLCC’s decision. Zaccagnini’s case has
proceeded under the indirect method of proof, and under
this analysis, a plaintiff need not produce evidence of
discrimination.
We emphasize that [plaintiff ’s] failure to bring any
evidence regarding age does not defeat his claim per
se, the special virtue of the indirect method of proof
is that it allows victims of age discrimination to
prevail without presenting any evidence that age
was a determining factor in the employer’s motiva-
tion. Holding to the contrary would violate one of
the purposes of McDonnell Douglas and Burdine,
14 No. 02-3484
which is to permit plaintiffs to recover, even if they
are unable to discover evidence of discrimination,
simply by proving that the employer’s proffered
justification is unworthy of credence.
Perfetti, 950 F.2d at 451-52 (citation omitted). When
combined with CLCC’s shift in explanations, Zaccagnini has
produced enough evidence to call into question CLCC’s
profferred justification, and as a result we find that a jury
could determine CLCC’s reasoning to be pretextual.
III. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of
the district court and REMAND the case for proceedings
consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-29-03