Duncan, Barry K. v. Fleetwood Motor ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1284
BARRY K. DUNCAN,
Plaintiff-Appellant,
v.
FLEETWOOD MOTOR HOMES
OF INDIANA, INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 6 C 42—Roger B. Cosbey, Magistrate Judge.
____________
ARGUED JANUARY 29, 2008—DECIDED FEBRUARY 29, 2008
____________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
PER CURIAM. Barry Duncan worked at Fleetwood Motor
Homes of Indiana for 20 years, 15 of them as a material
handler. In 2004, when Duncan was 51, Fleetwood told
him he could no longer work as a material handler. The
company offered Duncan several less desirable jobs in
the following months, and eventually he accepted a
position as an assembler. Duncan sued, claiming that
Fleetwood violated the Age Discrimination in Employ-
ment Act by forcing him to give up his job as a material
handler. A magistrate judge, presiding by consent, granted
2 No. 07-1284
summary judgment for Fleetwood. Because we conclude
that questions of fact remain concerning the legitimacy
of Fleetwood’s explanation for its action, we vacate the
judgment and remand for further proceedings.
I.
Except as otherwise noted, the following facts are
undisputed. Fleetwood hired Duncan in 1987 to work as
one of about 40 material handlers at its manufacturing
facility in Decatur, Indiana. He was briefly laid off in 1990
and afterward held a variety of positions until he regained
his permanent job as a material handler in 1993. Duncan
continued to work as a material handler until his posi-
tion was given to a younger man in September 2004.
What motivated that action is the issue here. In Decem-
ber 2003, Duncan had injured his back at work while
moving a box weighing between 60 and 70 pounds. His
doctor imposed temporary work restrictions, though
he still returned to his job the next day. Initially he was
limited to less than 25 pounds of constant lifting, pushing,
and pulling, but this limit was raised to 30 pounds in
January and 40 pounds in April. These restrictions did not
prevent Duncan from performing the essential functions
of a material handler, and during his recovery he never
asked management for any formal accommodation. On
occasion, a task required that Duncan lift something in
excess of the temporary restrictions. For example, about
once each week, he encountered a 60-to-70-pound box
like the one he was moving when he injured himself. As
instructed by Fleetwood, Duncan sought assistance from
a co-worker in these limited circumstances and com-
pleted the tasks. Duncan received medical treatment for
No. 07-1284 3
his back injury over the next seven months, but he did not
miss any work days as a result of his injury. On July 13,
2004, Duncan’s doctor released him from all work restric-
tions. From then on he required no special assistance in
moving heavy objects.
A few weeks later, Duncan noticed other employees
wearing armbands designed to reduce elbow strain.
Duncan had been experiencing elbow pain for a few
days, so he stopped at Fleetwood’s safety station and
asked for a pair. While Duncan was there, the first-aid
attendant inquired about his back, and Duncan replied
that he still felt some minor pain in his leg and hip. This
answer prompted the attendant to remind Duncan that
his claim for worker’s compensation was already closed.
Duncan explained that he was not asking to see a doctor,
but simply following his doctor’s advice to keep the
company apprised of his condition. Shortly thereafter,
Fleetwood told Duncan that he must undergo a func-
tional capacity evaluation (“FCE”) to gauge his fitness to
perform the duties of a material handler.
The physical therapist who conducted the FCE on
August 12, 2004, used a job description printed on letter-
head from WorkSTEPS, an outside consultant. This job
description for material handlers is dated April 4, 2004,
and was created after Duncan injured his back in 2003.
Fleetwood submitted no evidence at summary judg-
ment about the sources of information used in creating
the job description, nor did Fleetwood even produce
evidence that WorkSTEPS actually had a role in creating
it. Fleetwood simply attached the document to an affi-
davit from its personnel manager, who said the job de-
scription was “in place” but gave no hint how it got there.
The document bears a signature line for a Fleetwood
4 No. 07-1284
employee to acknowledge the accuracy of the listed
physical requirements, but the line is blank. A signature
line for a WorkSTEPS representative also is blank. The job
description requires, among other things, that a material
handler be able to lift 97 pounds occasionally and 73
pounds frequently. Duncan testified that these lifting
parameters are inaccurate; he said, and Fleetwood did
not dispute, that material handlers do not lift items that
heavy without a machine or help from a co-worker. The
physical therapist also voiced skepticism about the job
description. She noted that Duncan was unfamiliar
with some of the listed duties, and commented that his
return to work after his injury without any incident or
missed days raised a concern about the credibility of the
job description. Fleetwood offered no evidence that it had
used this job description to conduct an FCE for any other
currently employed material handler, or any applicant
for that position. Nonetheless, the physical therapist
performed the FCE using the job description she was
given and concluded that Duncan was not able to lift
97 pounds occasionally or 73 pounds frequently.
That conclusion prompted Duncan’s doctor to impose
permanent restrictions on August 19, 2004. Among
other limitations, Duncan was barred from ever lifting
97 pounds and directed not to lift 73 pounds frequently.
Fleetwood’s safety manager then told Duncan he prob-
ably could not continue working as a material handler.
Duncan countered that none of the restrictions imposed
by his doctor would impede his ability to perform the
requirements of the job, and he insisted that his years
working as a material handler demonstrated that the
job description was inaccurate.
In response to Duncan’s protests, Fleetwood hired an
occupational therapist who, according to her written
No. 07-1284 5
report, visited the Decatur facility to assess the validity
of the job description and compare it to Duncan’s perma-
nent restrictions. She wrote that a “tour of the facility
and discussion and review of the many job duties re-
quired of a material handler” led her to conclude that the
position in fact required the ability to lift 97 pounds
occasionally and 73 pounds frequently. As with the job
description itself, however, Fleetwood introduced the
occupational therapist’s report through its personnel
manager, who verified that the document was in the
company’s files but once again said nothing about the
events underlying its creation. Fleetwood did not intro-
duce any testimony from the occupational therapist, or
any evidence about who or what she consulted when
she purportedly toured Fleetwood’s facility to verify
the accuracy of the unsigned job description.
On September 9, 2004, after receiving the occupational
therapist’s report, Duncan’s supervisor, Adam Stucky,
summoned Duncan and told him that Fleetwood was
placing him on unpaid medical leave because the results
of the FCE revealed that he could not perform the essen-
tial tasks of his job. Duncan maintains, however, that after
the FCE was conducted on August 12, he continued to
perform the essential tasks required of material handlers
and had not been given a lighter workload or failed to
perform a requested task. Nor after the FCE was he ever
counseled about his performance. Duncan asked Stucky
what tasks he supposedly could not perform, but got
no answer. Duncan also asked Stucky why Fleetwood
had made this decision; Stucky, a man of similar age,
answered that Duncan must recognize that the two of
them no longer could do many things.
When his job was taken from him, Duncan also was told
that his unpaid medical leave would end and that his
6 No. 07-1284
employment would be terminated if Fleetwood could not
find another position for him within 30 days. Duncan also
was told that it was his responsibility to telephone
Fleetwood every day to inquire about open positions.
Duncan did so twice a day, even after 30 days had
passed. In November 2004, Fleetwood offered Duncan a
clerical position. Duncan declined because he lacked
clerical experience and the job paid less than material
handling. Indeed, the Fleetwood personnel employee
who made the offer told Duncan the job probably
would not interest him. Fleetwood next offered Duncan a
paint-preparation job in December 2004, but Duncan
declined again because he did not want to work the night
shift. In late December 2004, Fleetwood offered to hire
Duncan as an assembler. Duncan accepted this position
and returned to work in early January 2005. Fleetwood
does not dispute that assemblers have less opportunity
to earn overtime pay than material handlers.
Duncan was replaced by a worker under age 40. He then
filed a charge of discrimination with the Equal Employ-
ment Opportunity Commission in April 2005. After re-
ceiving a right-to-sue letter, he timely filed this lawsuit
claiming discrimination in violation of the Americans
with Disabilities Act, 42 U.S.C. §§ 12101-12213, and
the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621-34. The parties consented to entry of final judg-
ment by a magistrate judge, who in January 2007 granted
Fleetwood’s motion for summary judgment.
II.
On appeal, Duncan has elected to pursue only his claim
of age discrimination. Our review is de novo. Perez v.
Illinois, 488 F.3d 773, 776 (7th Cir. 2007). We will uphold
No. 07-1284 7
a grant of summary judgment only if, viewing “the evi-
dence in the light most favorable to the non-moving
party, there is no genuine issue of material fact that must
be decided by a jury.” O’Neal v. City of Chi., 392 F.3d 909,
910 (7th Cir. 2004); see FED. R. CIV. P. 56(c).
Duncan proceeded under the indirect, burden-shifting
method of McDonnell-Douglas Corp. v. Green, 411 U.S. 792(1973). Under that method, he had the initial burden of
establishing a prima facie case of discrimination by adduc-
ing evidence that (1) he is a member of a protected class,
(2) his performance met Fleetwood’s legitimate expecta-
tions, (3) he suffered an adverse employment action, and
(4) Fleetwood sought someone to perform the same work
after he left. See Pantoja v. Am. NTN Bearing Mfg. Corp.,
495 F.3d 840, 846 (7th Cir. 2007); see also Barricks v. Eli Lilly
& Co., 481 F.3d 556, 559 (7th Cir. 2007). Fleetwood does not
dispute the magistrate judge’s conclusion that Duncan
satisfied these elements. Accordingly, Duncan raised an
inference of discrimination, and the burden shifted to
Fleetwood to proffer a legitimate, nondiscriminatory
reason for the employment decision. See Reeves v. Sander-
son Plumbing Prods., Inc., 530 U.S. 133, 147 (2000); Gordon
v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir 2001).
Coming forward with such a reason would have shifted
the burden back to Duncan to prove that the proffered
reason was a pretext for discrimination. See Griffin v. Sisters
of Saint Francis, Inc., 489 F.3d 838, 844 (7th Cir. 2007);
Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th Cir.
2006). As far as this record shows, however, the explana-
tion Fleetwood gave for taking Duncan’s job cannot be
characterized as legitimate. Fleetwood thus failed to
carry its burden under the McDonnell-Douglas frame-
work and was not entitled to summary judgment.
8 No. 07-1284
To reach this conclusion we need not look beyond
Fleetwood’s own presentation. The company did not
dispute that Duncan was meeting its legitimate perfor-
mance expectations when it removed him from his job.
Nevertheless, Fleetwood argued that Duncan’s inability
to meet the physical demands of the paper job descrip-
tion was a defensible reason for the action taken. These
positions are impossible to reconcile. As we have noted
many times, when an employer has cited performance
issues as the justification for its adverse action, the perfor-
mance element of the prima facie case cannot be separated
from the question whether the employer proffered a
nonpretextual explanation for its challenged conduct. See,
e.g., Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics
Dep’t, 510 F.3d 681, 687-88 (7th Cir. 2007); Hague v. Thomp-
son Distribution Co., 436 F.3d 816, 823 (7th Cir. 2006); Coco
v. Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir. 1997). An
employee who cannot meet the physical demands in a
job description cannot possibly be performing to the
employer’s legitimate expectations unless—as Duncan
has said all along—the job description is not accurate
and does not reflect the employer’s true expectations. It
follows that by effectively conceding that Duncan was
meeting its legitimate performance expectations, Fleet-
wood also conceded that the 73- and 97-pound lifting
requirements set out in the job description are not genu-
ine demands of the job. By its own account, then,
the reason Fleetwood gave for removing Duncan was
false—i.e., not legitimate—so the company never dis-
charged its burden to come forward with a legitimate,
nondiscriminatory justification for the employment action.
See Patrick v. Ridge, 394 F.3d 311, 318 (5th Cir. 2004) (ex-
plaining that employer has not met its burden of produc-
tion if its putative reason for challenged employment
No. 07-1284 9
action is shown by its own evidence to be an impossibility);
Coco, 128 F.3d at 1179 (explaining that “defendant’s
expectations are not legitimate if they are phony”).
Moreover, even if Fleetwood’s inconsistent litigation
positions were not enough to illuminate that its proffered
reason lacks legitimacy, we still would conclude that
Duncan adduced sufficient evidence to call into question
the honesty of Fleetwood’s explanation for taking away
his job. Even when an employer has proffered what
appears to be a legitimate, nondiscriminatory explana-
tion for its conduct, summary judgment will not be appro-
priate if the aggrieved employee produces evidence
from which a jury reasonably could find that the stated
explanation is false and that the real reason was discrimi-
natory. See Brown v. Ill. Dep’t of Natural Res., 499 F.3d 675,
683 (7th Cir. 2007); Perez, 488 F.3d at 777. Duncan did
that. His evidence shows that even during the seven
months he was under restrictions, he never missed a
day of work or evaded the normal duties of a material
handler. Then after his doctor lifted all restrictions
Duncan continued to perform exactly the same tasks as
all other material handlers, without modification of his
duties or any incident where he was unable to perform.
He was not reprimanded, nor did he receive any com-
plaints about his performance during the two months
after his doctor gave him a clean bill of health.
We are mystified, then, that Fleetwood would say
Duncan could not perform the job of material handler
when he was doing exactly that on a daily basis without
incident or criticism. We have explained that the honesty of
an employer’s statement is often revealed by analyzing its
reasonableness; the more objectively reasonable the
explanation, the more likely it honestly motivated the
10 No. 07-1284
challenged employment action. See Gordon, 246 F.3d at
889; Flores v. Preffered Technical Group, 182 F.3d 512, 516
(7th Cir. 1999). Here, Fleetwood’s explanation for why
it fired Duncan is, if anything, objectively unreasonable.
We think it particularly significant that Fleetwood offered
no evidence that it used this job description to conduct
an FCE for any other currently employed material handler,
or any applicant for that position. In fact, Fleetwood
did not even assert that Duncan’s replacement could
meet the lifting requirements in the job description.
Still, Fleetwood protests that it could not have been
discriminating against Duncan because its efforts to find
him a new position evidence that it wanted him to remain
employed with the company. But this contention is incon-
sistent with Fleetwood’s concession that Duncan suf-
fered an adverse employment action. The relevant inquiry
is not whether Fleetwood wanted Duncan to leave the
company because of his age, but whether it removed him
from his job as a material handler on that basis. See
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)
(explaining that firing, reassignment with significantly
different responsibilities, and significant change in bene-
fits all can constitute adverse employment action); Flaherty
v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994) (ex-
plaining that “employment actions that fall short of
outright termination may also be actionable under the
ADEA”). Leaving aside for the moment the fact that
Fleetwood put Duncan out of work entirely for several
months, transferring older workers to objectively less-
desirable jobs on the basis of their age is still age discrimi-
nation. See Kodl v. Bd. of Educ. Sch. Dist. 45, 490 F.3d 558, 562
(7th Cir. 2007) (assuming that transfer could constitute
discrimination under ADEA); Radue v. Kimberly-Clark Corp.,
No. 07-1284 11
219 F.3d 612, 615 (7th Cir. 2000) (explaining that employer
may not use age to decide which employees whose jobs
have been eliminated in RIF will be transferred to other
available positions); see also Stutler v. Ill. Dep’t of Corr., 263
F.3d 698, 702 (7th Cir. 2001) (suggesting that lateral transfer
with loss of benefits may constitute adverse employment
action under Title VII).
Fleetwood also tries to suggest that WorkSTEPS bears
responsibility for the decision to remove Duncan from his
job. According to Fleetwood, the essential job functions
for the position of material handler “were set forth in
a job description created by an independent entity,
WorkSTEPS” and thus the company should be insulated
from any allegation of discriminatory motive. This conten-
tion is nonsensical, most importantly because there is
absolutely nothing in the record to suggest that Fleet-
wood did not play a dominant role in creating the
job description. Indeed, Fleetwood’s representation that
WorkSTEPS created the job description is not supported
by any evidence at all, apart from the appearance of
the WorkSTEPS name on the document. There is no
evidence that the WorkSTEPS consultant ever visited the
Fleetwood facility, performed any evaluation, made any
observations, or interviewed anyone. The only evidence
about the job description is the document itself,
which Fleetwood’s personnel manager knew nothing
about, other than that it was the job description on file. And
despite signature lines for WorkSTEPS and Fleet-
wood representatives, the document is not signed or
dated by anyone. Similarly, Fleetwood introduced no
testimony from the occupational therapist hired to verify
the WorkSTEPS job description. A defendant’s legitimate,
nondiscriminatory reason must be “clearly set forth,
through the introduction of admissible evidence.” St.
12 No. 07-1284
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Tx. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981); Hasham
v. Cal. State Bd. of Equalization, 200 F.3d 1035, 1044 (7th Cir.
2000). Fleetwood did not introduce any admissible evi-
dence about what the material handler job required, so
Duncan’s uncontradicted testimony about the job require-
ments would be enough for a jury to conclude that
Fleetwood’s explanation was phony.
Finally, even if the burden had shifted to Duncan,
we also would conclude that he adduced sufficient evi-
dence to raise an inference that Fleetwood’s real reason
for removing him was discriminatory. Evidence of pre-
text combined with the prima facie case alone may be
enough in some circumstances. Reeves, 530 U.S. at 148. Here
we have both, but there is more. Duncan was 51 years old
at the time he was fired, and he asserts, based on personal
knowledge, that Fleetwood replaced him with a worker
under 40 years old. The Supreme Court has said, in the age-
discrimination context, that replacement of the plaintiff by
someone substantially younger is a “reliable indicator of
age discrimination.” O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 313 (1996). We have defined “substantially
younger” as generally 10 years younger. Balderston, 328
F.3d at 321-22. Duncan’s replacement was more than 10
years younger, and thus suggestive of age discrimination.
At his deposition Duncan also testified that before he was
removed from his job he overheard a production manager
comment that older workers cost the company a lot of
money (Fleetwood itself introduced this testimony at
summary judgment). Additionally, as Stucky was escorting
Duncan out of the plant, Stucky made a comment that
could be construed as indicating that Duncan was removed
because of his age. Perhaps Stucky’s words could be
No. 07-1284 13
construed differently, but finding meaning in ambiguous
statements is the province of the jury. Phelan v. Cook County,
463 F.3d 773, 782 (7th Cir. 2006).
III.
For the foregoing reasons, we VACATE the judgment of
the magistrate judge and REMAND the case for further
proceedings.
USCA-02-C-0072—2-29-08