Appelbaum, Doris S. v. Milwaukee Metro

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2977
DORIS S. APPELBAUM,
Plaintiff-Appellee,
v.
MILWAUKEE METROPOLITAN
SEWERAGE DISTRICT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CV 366—Thomas J. Curran, Judge.
____________
ARGUED MAY 13, 2002—DECIDED AUGUST 28, 2003
____________
Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
ROVNER, Circuit Judge. Doris Appelbaum worked as a
secretary for the Milwaukee Metropolitan Sewerage Dis-
trict (“MMSD”) for fifteen years until she was discharged
at age sixty. A jury found that the MMSD had fired her
based on her age, in violation of the Age Discrimina-
tion in Employment Act of 1967, as amended, 29 U.S.C.
§§ 623(a)(1), 626 (the “ADEA”), and that it did so in wil-
ful disregard of the ADEA’s provisions, see id. § 626(b).
MMSD appeals, contending the evidence was insufficient
to support either the liability or the wilfulness determi-
nations. We affirm.
2 No. 01-2977
I.
Appelbaum’s employment with MMSD began in 1983.
Beginning in 1991 and through the date of her termina-
tion, she was assigned to MMSD’s Human Resources de-
partment. As of 1996, Appelbaum was one of three secre-
taries in that department. However, in August 1996,
MMSD’s number two official, Kristine Hinrichs, decided
that the number of secretaries in the department should
be reduced from three to two. She made this decision
pursuant to a reduction in force and partial privatization
of MMSD’s operations that eventually would reduce its
overall workforce from a total of between 600 and 700 em-
ployees down to 200.
Of the three secretaries in the Human Resources De-
partment, Hinrichs selected Appelbaum for layoff. In
choosing Appelbaum, Hinrichs rejected the advice of
department managers, who felt that she should instead
lay off a younger (in her late thirties) employee, Cassandra
Reynolds-Taylor, whose work was regarded as poor. Origi-
nally, Appelbaum was to be laid off effective January
1, 1997, but that date subsequently was extended to July 1,
1997, so that Appelbaum, who in July turned sixty, could
retire with full pension benefits.
Ultimately, Appelbaum’s job was saved when one of
the other secretaries in the department resigned in Feb-
ruary 1997, obviating the need for a layoff. The follow-
ing month, Don Schriefer became the new Manager of
Human Resources. In the five years prior to that appoint-
ment, Schriefer had worked for MMSD as a labor and em-
ployment lawyer. Shortly after he took over the Human
Resources department, Schriefer fired Reynolds-Taylor
based on repeated complaints about her performance;
Schriefer would later describe her work as “[p]retty egre-
gious.” R. 65 at 247. “Almost everything that she did
was done erroneously or wrong or not done at all.”
No. 01-2977 3
Id. The discharge of Reynolds-Taylor left Appelbaum as
the only secretary in the department, with a heavy work-
load.
For obvious reasons, employees of the Human Resources
department were obligated to keep in confidence the pri-
vate information regarding other MMSD employees with
whom they dealt in the course of their work. The impor-
tance of maintaining confidentiality was something that
Schriefer stressed to employees of the department on
more than one occasion. Schriefer informed the staff
that any breach of that confidentiality would result in
termination. Despite Schriefer’s warnings, confidential
information was leaked from the Human Resources de-
partment on a number of occasions during his tenure
as Manager. On one occasion, for example, Schriefer met
with a temporary MMSD employee to inform her that her
employment contract was being terminated. Before he
could break the news, the employee revealed that
she already knew she was going to be fired. She told
Schriefer that she had a “secret friend” at MMSD who had
learned of the termination decision from someone in the
Human Resources department. R. 65 at 224-25. (Schriefer
previously had discussed the decision to discharge this
employee with other members of the department.) In the
wake of this incident, Schriefer again admonished his
staff about the importance of confidentiality and re-
minded them that any leak of confidential information
would result in discharge of the offending employee.
Not long after this incident, Schriefer imposed a five-
day disciplinary suspension on Trina DeLeon, an em-
ployee in his department, for what he believed to be insub-
ordinate behavior. DeLeon had ordered Schriefer out of
her office when he attempted to question her about a
4 No. 01-2977
leak of confidential information.1 DeLeon subsequently
became aware that word was out among MMSD staff about
her suspension and complained to Schriefer. Schriefer
commenced an investigation to determine who had dis-
closed the information, and as part of that investigation
he interviewed all of the employees in his department.
When Schriefer spoke with Appelbaum, she revealed that
one day when she was on her way to the washroom, an
MMSD employee by the name of Sheila Ashley had
stopped Appelbaum and asked whether she had heard
about DeLeon’s suspension. Appelbaum responded to
Ashley, “[Y]es, I heard,” and added that she was not at
liberty to discuss the matter; Appelbaum suggested that
she address any questions to DeLeon herself. R. 65 at
54. Schriefer construed Appelbaum’s remarks to Ashley
as a leak of confidential information, and he decided to
fire Appelbaum for the transgression.
Schriefer believed that Appelbaum’s discharge was
warranted on a second ground: her work performance.
Appelbaum’s work had been rated satisfactory or better
throughout the bulk of her tenure with MMSD, and she
had received a number of merit-based increases in her
salary. But early in 1997, Schriefer’s predecessor in the
Human Resources department had prepared a review for
1996 indicating that Appelbaum’s work needed improve-
ment in certain areas. In Schriefer’s view, Appelbaum’s
performance had not changed for the better in 1997.
He decided to fire her on this basis as well.
1
Apparently, someone had informed DeLeon of another em-
ployee’s intent to resign from MMSD’s employ. When Schriefer
learned that DeLeon had come into possession of this informa-
tion, he demanded that DeLeon tell him what she knew. DeLeon
took umbrage at Schriefer’s manner and refused to tell him
anything. R. 65 at 148-49, 157-58, 227, 240.
No. 01-2977 5
Schriefer subsequently met with Appelbaum and ad-
vised her of his intent to discharge her. He offered Appel-
baum a separation agreement pursuant to which MMSD
would supply a neutral letter of reference to prospec-
tive employers and Appelbaum in turn would waive any
claims she might have under the ADEA. Schriefer ad-
vised Appelbaum that if she did not accept MMSD’s of-
fer, he would fire her. He gave her several weeks to con-
sider the offer. Appelbaum ultimately declined the offer.
Upon learning that Appelbaum had rejected the separa-
tion agreement, Schriefer on January 21, 1998, sent her
a Notice of Contemplated Discipline formally advising her
of his decision to terminate her employment. Schriefer’s
memorandum indicated that his decision was based on
her work performance as well as her breach of confiden-
tiality. On the subject of her work quality, Schriefer ad-
vised Appelbaum that he had “received complaints this
year about your performance from every staff member, as
well as from both temporary workers we employed this
year.” R. 25 Ex. E-1, Notice of Contemplated Discipline
at 2.
Appelbaum prepared a written response to Schriefer’s
memorandum challenging both of the reasons he had
given for her termination. Apropos of her work, Appelbaum
noted that she had not been notified of her co-workers’
complaints, had not been given the chance to respond
to them, and had not been advised as to how MMSD
expected her to correct the complained-of deficiencies. She
also noted that Schriefer had failed to conduct a mid-
year review of her work in 1997 as a follow-up to her
negative 1996 review, as Schriefer had promised he
would do. R. 25 Ex. A-5 at 2-3, 5-6.
In a February 17, 1998 written reply to Appelbaum,
Schriefer agreed that it would be inappropriate to ter-
minate her solely on the basis of her work performance, in
6 No. 01-2977
view of the concerns she had raised. Nonetheless, Schriefer
went on, Appelbaum’s breach of department confiden-
tiality was an offense that required her termination.
“[Y]our performance problems are presently relevant to
me only because they constitute a background that, to
my mind, aggravates rather than mitigates my view of
this offense.” R. 25 Ex. E-2 at 2.
Appelbaum unsuccessfully appealed the termination
decision through MMSD’s internal grievance procedure.
Mike McCabe, MMSD’s chief of legal services, conducted
a hearing at which both Appelbaum and MMSD presented
evidence. McCabe subsequently issued a written decision
sustaining Schriefer’s decision to discharge Appelbaum.
In that decision, McCabe described the standard of re-
view he applied as “whether the supervisor’s action
was within the reasonable range of alternatives which
the supervisor might have taken under the circumstances.”
R. 22, McCabe Decision at 6. Applying that standard,
McCabe determined that Schriefer’s decision was jus-
tified based on Appelbaum’s poor performance as well
as her breach of confidentiality. His decision ended with
the following “Conclusion”:
On the facts as I have found them to be in the context
of what, at best, can be termed very poor perfor-
mance in 1997 and poor performance in 1996, I be-
lieve termination was within the reasonable range of
alternatives which Mr. Schriefer faced. It is, therefore,
my determination that his action in terminating
Doris Appelbaum be upheld.
Id. With her termination final, Appelbaum retired. Al-
though, having attained the age of sixty, Appelbaum was
entitled to full retirement benefits, the monthly pension
payment that she received was less than it would have
been had she continued working until age sixty-five, as
was her plan.
No. 01-2977 7
Appelbaum then sued MMSD for age discrimination in
the district court, and the case proceeded to trial. At trial,
Schriefer testified that after initially notifying Appel-
baum that she was being fired both for breaching con-
fidentiality and for poor work, he had concluded that he
could not rely on her performance as a basis for her dis-
charge because he had never followed up on the prior
review citing her for substandard work in 1996. R. 65
at 237-38. Ultimately, he testified, Appelbaum’s perfor-
mance played “zero role” in her termination. Id. at 237,
253-54. When confronted with his memorandum of Feb-
ruary 17, 1998 to Appelbaum, in which Appelbaum’s per-
formance was still cited as an aggravating factor in the
discharge decision, Schriefer explained that had Appel-
baum’s work been exemplary, he would have considered
it as a factor weighing against her discharge, although he
still would have been hard-pressed not to fire her for the
confidentiality breach. Id. at 254.
After hearing the evidence, the jury found in Appel-
baum’s favor. On a special verdict form, the jury indicated
that age had been a motivating factor in MMSD’s decision
to fire her, that she would have worked another fifty
three months beyond her discharge date, and that her lost
wages totaled $115,000. R. 73 at 1-2. The jury also found
that MMSD either knew that its decision to fire Appel-
baum was contrary to the ADEA or acted with reckless
disregard for that possibility—thus rendering MMSD li-
able for a wilful violation of the statute. Id. at 2; see 29
U.S.C. § 626(b). Based on the jury’s findings, the district
court awarded Appelbaum back pay of $87,660, front pay
of $27,340 (conditioned on MMSD’s inability to reinstate
her)—for a total of $115,000 in lost wages—and an addi-
tional $87,660 in liquidated damages for MMSD’s wil-
ful violation of the ADEA, yielding a total award of
$202,660. R. 75, 76.
8 No. 01-2977
During trial, at the close of evidence, MMSD had moved
for judgment as a matter of law pursuant to Fed. R. Civ. P.
50(a), and the district court had denied that motion. R. 50.
Following the adverse verdict, MMSD renewed its motion
pursuant to Rule 50(b), contending that there was insuffi-
cient evidence from which the jury could have found that
Appelbaum’s age was a motivating factor in her dis-
charge. R. 54. The court again denied the motion. In its
written decision, the court agreed that “the evidence of
age discrimination received at Appelbaum’s trial was thin.”
R. 75 at 2. Nonetheless, Appelbaum had adequately es-
tablished a prima facie case of discrimination, id. at 2-3;
she had also produced evidence that MMSD’s articulated
reason for her discharge (breach of confidentiality) was
pretextual, id. at 3. The jury had agreed with Appelbaum
that MMSD’s stated reason for firing her was a pretext
for age discrimination, id., and the court found the evi-
dence sufficient to support that determination, id. at 4.
From the denial of its motion for judgment as a matter
of law, MMSD appeals.
II.
We review de novo the district court’s decision to deny
MMSD’s Rule 50 motion for judgment as a matter of law.
In conducting that review, we apply the same standard
that the district court did. The standard governing a Rule
50 motion mirrors that employed in evaluating a sum-
mary judgment motion. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000).
Looking to “all of the evidence in the record,” ibid., we
must ask whether any reasonable jury could have found
that MMSD terminated Appelbaum because of her age,
E.E.O.C. v. Bd. of Regents of Univ. of Wisconsin Sys., 288
F.3d 296, 301 (7th Cir. 2002) and, if so, that it did so
wilfully, id. at 304. In undertaking this review, we must
No. 01-2977 9
construe the evidentiary record in Appelbaum’s favor,
drawing all reasonable inferences in her favor and resisting
temptation to weigh the evidence or to make our own
credibility determinations. Reeves, 530 U.S. at 150-51, 120
S. Ct. at 2110.
A.
MMSD claims to have fired Appelbaum for breaching
the confidentiality of its Human Resources department,
and the question that the jury had to decide was whether
this was the real reason for the discharge or instead was
a pretext for age discrimination. As Appelbaum suggests,
the evidence as to her asserted breach of confidentiality
is ambiguous. When asked whether she had heard about
DeLeon’s suspension, Appelbaum said that she had.
Arguably, Appelbaum’s response simply confirmed that
she had heard the same rumor that prompted the inquiry,
without either validating the rumor or disclosing any of
the confidential information within her knowledge about
DeLeon’s suspension. Nonetheless, we do not question
that Appelbaum’s conduct would suffice as a nondiscrim-
inatory reason for her discharge. We are not, after all, a
super-personnel department that sits in judgment of
the wisdom of an employer’s employment decisions. E.g.,
Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532
(7th Cir. 2003). Rather, our sole task is to decide whether
evidence permitted the jury to conclude that Appelbaum’s
breach of confidentiality was not the true reason for her
termination. E.g., Dyrek v. Garvey, 334 F.3d 590, 598 (7th
Cir. 2003). If it was not, then the jury was entitled to
infer that MMSD used the confidentiality breach as a
cloak for age discrimination. Reeves, 530 U.S. at 147-48,
120 S. Ct. at 2108-09.
Looking to the record, we find the evidence more
than sufficient to support the jury’s determination that
10 No. 01-2977
MMSD terminated Appelbaum based on her age rather
than any breach of confidentiality she may have commit-
ted. Without undertaking to identify all of the evidence
that supports the jury’s finding, we note the following
three circumstances.
When he first advised Appelbaum of his decision to fire
her, Schriefer indicated that she was being discharged for
both her allegedly poor performance and for the confi-
dentiality breach. He later backed off somewhat from
the performance rationale in response to the concerns Ap-
pelbaum raised about his failure to follow through on
her purported deficiencies. But in his February 17, 1998,
memorandum to Appelbaum, Schriefer still cited her
performance as an aggravating factor in his decision, as
he did at the disciplinary review hearing before McCabe.
Indeed, McCabe himself sustained the discharge decision
on the basis of Appelbaum’s work performance as well as
the confidentiality breach. At trial, however, not only
did MMSD abandon the charge of poor work performance,
but Schriefer went so far as to say it played “zero role” in
Appelbaum’s termination. R. 65 at 237. That assertion
represents a departure from the rationale that Schriefer
and MMSD previously had articulated for Appelbaum’s
discharge. One can reasonably infer pretext from an em-
ployer’s shifting or inconsistent explanations for the
challenged employment decision. E.g., Zaccagnini v. Chas.
Levy Circulating Co., 2003 WL 21741636, at *5 (7th Cir.
July 29, 2003); Schuster v. Lucent Techs., Inc., 327 F.3d
569, 577 (7th Cir. 2003); Lawson v. CSX Transp., Inc., 245
F.3d 916, 931-32 & n.13 (7th Cir. 2001); Castleman v.
Acme Boot Co., 959 F.2d 1417, 1422 (7th Cir. 1992).2
2
The jury also could have questioned the sincerity of Schriefer’s
professed concerns about the quality of Appelbaum’s work.
Although Schriefer’s January 28, 1998, memorandum to Appel-
(continued...)
No. 01-2977 11
Moreover, pursuant to the reduction in force, MMSD had
previously made a decision to lay off Appelbaum rather
than the younger Reynolds-Taylor, notwithstanding glar-
ing problems with Reynolds-Taylor’s performance (prob-
lems that would soon culminate in Schriefer’s decision to
fire her) and the recommendations of MMSD’s own man-
agers that Reynolds-Taylor be the one laid off. Only
the unexpected departure of the department’s third secre-
tary had saved Appelbaum’s job on that occasion. The fact
that MMSD had chosen to lay off someone on the verge
of retirement eligibility rather than someone substantially
younger and so evidently less qualified supports the
inference that its decision-making (at least as to Appel-
baum) was tainted by considerations of age, and along
with the other circumstances supports the inference
that she was later discharged based on her age. See United
Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885,
1889 (1997); Williamson v. Handy Button Mach. Co., 817
F.2d 1290, 1295 (7th Cir. 1987); Mathewson v. Nat’l Auto-
matic Tool Co., 807 F.2d 87, 91 (7th Cir. 1986). MMSD
retorts that the layoff decision was not made by Schriefer
but by Kristine Hinrichs and for that reason is wholly
irrelevant to the discharge decision. Schriefer, however,
not only reported to Hinrichs but consulted her in decid-
2
(...continued)
baum asserted that he had “received complaints this year about
your performance from every staff member” in the Human
Resources department, R. 25 Ex. E-1, Notice of Contemplated
Discipline at 2, two of those employees—Glinda Loving and Trina
DeLeon—testified that they had not complained to Schriefer
about Appelbaum’s work and, in fact, had never been asked
about her work in 1997, R. 65 at 146-47, 172, 174. Although
MMSD’s attorney challenged the credibility of these witnesses,
the jury could have believed their testimony and determined, as
a result, that Schriefer was misrepresenting the degree if not
the fact of departmental discontent with Appelbaum’s work.
12 No. 01-2977
ing to fire Appelbaum. Consequently, the jury was entitled
to take the prior layoff decision into account when it as-
sessed the reasons for Appelbaum’s discharge.3
Finally, the jury also could have inferred pretext from
the disparate way in which Schriefer had disciplined
Appelbaum as compared to DeLeon. Disparate discipline
of an employee who is situated similarly to the plaintiff
but is outside of the protected class may support an infer-
ence of age discrimination. See Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). “Such a show-
ing normally entails establishing that ‘the two employ-
ees dealt with the same supervisor, were subject to the
same standards, and had engaged in similar conduct
without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s
treatment of them.’ ” Snipes v. Illinois Dep’t of Corrections,
291 F.3d 460, 463 (7th Cir. 2002), quoting Radue at 617-18.
DeLeon and Appelbaum worked in the same department,
were both supervised and ultimately disciplined by
Schriefer, and were subject to the same standards vis-à-vis
confidentiality and insubordination. Recall that Schriefer
decided on a sanction short of discharge for DeLeon after
he attempted to question her about a leak of informa-
tion from the Human Resources department—DeLeon not
only had refused to answer Schriefer’s questions, but had
ordered him out of her office. Schriefer decided to sus-
pend her for five days. DeLeon’s offense, of course, was
one of insubordination rather than breach of confiden-
3
The lapse of time between the layoff decision and the dis-
charge decision may detract from the weight of the evidence
concerning the earlier decision, see Huff v. UARCO, Inc., 122 F.3d
374, 386 (7th Cir. 1997); but, nonetheless, we believe that the
jury was entitled to attach some significance to the fact that
MMSD had previously chosen to lay off Appelbaum rather
than her younger, clearly less-qualified colleague.
No. 01-2977 13
tiality; and short of striking one’s supervisor, it was un-
heard of for a first act of insubordination to result in
discharge from MMSD’s employ. Grave as one might
view insubordinate conduct such as DeLeon’s, one none-
theless could view it as less serious than a breach of
confidentiality by a Human Resources employee, an act
which could injure an employee about whom private
information was disclosed and undermine confidence in
the Human Resources department. Schriefer, in fact, had
warned his staff prior to Appelbaum’s discharge that a
breach of confidentiality would result in termination. On
the other hand, DeLeon’s conduct arose from Schriefer’s
inquiry into just such a breach, and her refusal to cooper-
ate with Schriefer could be seen to pose as much of a
threat to the integrity of the Human Resources depart-
ment as Appelbaum’s inadvertent confirmation of a rumor.
Cf. In re Himmel, 533 N.E.2d 790 (Ill. 1988) (suspending
attorney from practice of law for his failure to report
misconduct of another attorney). MMSD had never before
had occasion to discipline Appelbaum for any rule infrac-
tion, nor had any Human Resources employee previously
voiced a concern that Appelbaum had leaked or other-
wise mishandled confidential information. The fact that
she was fired for her breach of the department’s confi-
dentiality policy, while DeLeon was merely suspended
for an insubordinate refusal to cooperate with the enforce-
ment of that same policy, could be viewed as a disparate
treatment of two similarly situated employees.
Both parties presented to the jury a version of events
that was plausible: MMSD presented evidence that it
fired Appelbaum for breaching departmental confidence,
while Appelbaum presented evidence suggesting that
MMSD’s shifting rationale for her discharge may have been
a cover for something else. The relevant facts were fully
aired before the jury, and it fell to the jury to sort out
which side’s version was more likely true. As MMSD’s
lawyer argued to the jury in closing:
14 No. 01-2977
If the facts were clear we wouldn’t need a jury, and
what [jurors are] for is to bring their human experience
and their knowledge of people and life experiences
and look into the eyes of the witnesses that have
been up here on the stand and figure out who is tell-
ing the truth, because we don’t all tell the truth all the
time.
R. 86 at 13. Just so. The jury in this case resolved the
credibility questions and competing inferences posed by
the trial evidence in Appelbaum’s favor, and we have no
reason to disturb its assessment of the facts.
B.
An employer commits a wilful violation of the ADEA,
entitling the plaintiff to liquidated damages, when the
employer knows that its conduct is prohibited by the stat-
ute or manifests reckless disregard for that possibility.
Hazen Paper Co. v. Biggins, 507 U.S. 604, 617, 113 S. Ct.
1701, 1710 (1993). By contrast, “[i]f an employer incor-
rectly but in good faith and nonrecklessly believes that
the statute permits a particular age-based decision, then
liquidated damages should not be imposed.” Id. at 616, 113
S. Ct. at 1709, citing McLaughlin v. Richland Shoe Co., 486
U.S. 128, 135 n.13, 108 S. Ct. 1677, 1682 n.13 (1988); see
also Bd. of Regents of Univ. of Wisconsin Sys., 288 F.3d
at 304, citing Wichmann v. Bd. of Trs. of S. Ill. Univ., 180
F.3d 791, 804 (7th Cir. 1999), judgment vacated on other
grounds, 528 U.S. 1111, 120 S. Ct. 929 (2000). “As one
might imagine, given the length of time the ADEA has
been with us, a finding of nonreckless ignorance is rare.”
Bd. of Regents at 304.
MMSD’s challenge to the wilfulness finding focuses on
the identity of the person at MMSD responsible for
Appelbaum’s termination. MMSD does not quarrel with
No. 01-2977 15
the notion that Schriefer either knew or was recklessly
indifferent to the possibility that the decision to discharge
Appelbaum violated the ADEA. Indeed, that would be
an extremely difficult argument for MMSD to make, given
Schriefer’s background as a labor and employment law-
yer for MMSD. Instead, MMSD contends that the final
decisionmaker with respect to Appelbaum’s discharge
was McCabe, who conducted the hearing on Appelbaum’s
grievance and sustained the discharge decision. There is
no evidence that McCabe acted with the requisite knowl-
edge or recklessness, MMSD argues, and without such
proof, MMSD’s decision to discharge Appelbaum cannot
be characterized as wilful.
A pragmatic view of the facts makes plain that Schriefer
was the pertinent decisionmaker, however. McCabe may
have rendered the decision to discharge Appelbaum final
and official in his role as the hearing examiner charged
with resolving her internal protest of the discharge deci-
sion. But the person who actually made the decision to
fire Appelbaum was Schriefer: he was the head of Appel-
baum’s department and her supervisor; he was the individ-
ual who investigated the leak about DeLeon’s suspension
and decided that Appelbaum’s disclosure constituted a
breach of department confidentiality; he was the individ-
ual who informed Appelbaum that she would be fired; and
he was the person who modified the rationale for
Appelbaum’s discharge in response to the concerns that
she raised. He was, in short, the person who “wielded the
axe.” Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1401
(7th Cir. 1997). McCabe simply reviewed Schriefer’s
rationale and sustained it as reasonable; he did not ac-
tually make the decision to discharge Appelbaum or cause
that decision to be made. Any doubt in that regard is
resolved by McCabe’s written decision, which expressly
confined his review to “whether [Schriefer’s] action
was within the reasonable range of alternatives which
16 No. 01-2977
[Schriefer] might have taken under all the circumstances.”
R. 22, McCabe Decision at 6. In short, McCabe (on MMSD’s
behalf) deferred to Schriefer’s judgment.
The jury was therefore free to impute Schriefer’s mindset
to MMSD. Because the jury was entitled to find on the
evidence that Schriefer discharged Appelbaum based on her
age knowing (or not caring) that such a decision was in
violation of the ADEA, the wilfulness determination and
award of liquidated damages were reasonable.
III.
Because the record lends sufficient support to the jury’s
findings of liability and wilfulness, we AFFIRM the judg-
ment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-28-03