Olson, Charles P. v. Northern FS Inc

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1102 & 04-1464
CHARLES P. OLSON,
Plaintiff-Appellant,
v.
NORTHERN FS, INC.,
Defendant-Appellee.
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Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 02 C 50147—Philip G. Reinhard, Judge.
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ARGUED SEPTEMBER 9, 2004—DECIDED OCTOBER 22, 2004
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Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. Early in 2001, Northern FS took
a chance when it hired Jacob Bloome, a 22-year-old without
any sales experience, to replace Chuck Olson, who had won
several sales awards in his more than 40 years with the
company, as its new crop salesman. The fact that Bloome’s
supervisor described his performance as “substandard” in his
2 years as a crop salesman (Bloome no longer works for
Northern FS) allows us to conclude that the company likely
made a bad decision. Whether the decision was also an il-
legal one, however, is a closer call. Having considered the
case, we think it should be resolved at a trial, rather than
at the summary judgment stage where Olson’s age discrimi-
nation claim came up a loser in the district court.
2 Nos. 04-1102 & 04-1464
Olson began selling seeds, fertilizer, and feed in 1960 for
the company that, after various reorganizations, eventually
became Northern FS. Beginning in 1991, Olson sold grain
buildings and equipment for 3 years before returning to
crop sales. Olson won the company’s annual sales award in
1996 and 1997 before returning to building sales from 1997
until Northern FS stopped selling buildings in 2000.
Olson spent February to October 2000 answering phones
and working in the warehouse of a Northern FS plant. In
August of that year, Steve Keelen, who had supervised Olson’s
sales route in the mid-1990’s before leaving the company,
returned to Northern FS and met with Olson about Olson’s
future with Northern FS. Olson claims Keelen told him that,
despite his experience, Olson was undesirable in the busi-
ness world because of his age. Olson says he repeated Keelen’s
remark to Keelen’s secretary on his way out of Keelen’s office.
The following month, a crop sales position suddenly opened.
At Keelen’s request, Olson and John Nienhuis filled the
void. Although Keelen contends he told Olson and Nienhuis
that the assignment was temporary, Olson claims he thought
the assignment was permanent, and Nienhuis denies that
Keelen ever told them that the assignment was temporary.
On the day Northern FS hired Bloome, Keelen took Olson
off his sales route and moved him back into the warehouse.
Later, Keelen approached Olson about driving a truck for
Northern FS or spraying fertilizer. But Olson could not
drive a truck because of eye problems, and neither side ever
mentioned the possibility of spraying fertilizer again. On
January 19, 2001, 11 days after Bloome was hired, Northern
FS fired Olson. At the time of his termination, Olson was 59
years old and had spent 41 years with Northern FS and its
predecessors.
Olson filed an age discrimination charge with the EEOC,
claiming Northern FS had discriminated against him in vio-
lation of the Age Discrimination in Employment Act, 29 U.S.C.
Nos. 04-1102 & 04-1464 3
§ 621 et seq. After the EEOC found reasonable cause to
believe Northern FS had discriminated against him, Olson
filed suit. But the district court granted Northern FS’s mo-
tion for summary judgment, finding that Olson failed to
provide sufficient evidence that his age was a motivating
factor in his firing.
We review the district court’s grant of summary judgment
de novo, viewing all facts and drawing all reasonable infer-
ences in Olson’s favor. Bellaver v. Quanex Corp., 200 F.3d
485, 491-92 (7th Cir. 2000). As we have said many times,
summary judgment is appropriate if there is no genuine
issue as to any material fact and the moving party is en-
titled to judgment as a matter of law. FED. R. CIV. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct.
2548 (1986).
A plaintiff can prove discrimination under the ADEA by
presenting direct or circumstantial evidence that an employer
took an adverse job action against him because of his age
(the direct method) or “by constructing a ‘convincing mosaic’
of circumstantial evidence that ‘allows a jury to infer inten-
tional discrimination by the decisionmaker’ ” (the indirect
method). Cerutti v. BASF Corp., 349 F.3d 1055, 1060-61 (7th
Cir. 2003) (quoting Troupe v. May Dep’t Stores Co., 20 F.3d
734, 736 (7th Cir. 1994)). The district court rejected Olson’s
claims on both counts, finding that Keelen’s statement that
Olson’s age made him undesirable in the business world was
merely a “stray remark” and that Olson could not establish a
prima facie case under the indirect method because he and
Bloome were not similarly situated.
We have found a statement to be direct evidence of dis-
criminatory intent where the statement was made around
the time of and in reference to the adverse employment
action. See Hunt v. City of Markham, Ill., 219 F.3d 649, 652
(7th Cir. 2000). As the district court noted, Keelen’s remark
came 5 months before Olson’s termination and was not made
4 Nos. 04-1102 & 04-1464
in direct reference to the firing. Therefore, it was not, as we
have required, “an admission by the decision-maker that his
actions were based upon the prohibited animus.” Cerutti,
349 F.3d at 1061 (quoting Rogers v. City of Chicago, 320
F.3d 748, 753 (7th Cir. 2003)).
The district court’s error, however, was ignoring Keelen’s
remark when evaluating Olson’s claim under the indirect
method set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817 (1973). Instead, the district court
noted that, generally, to establish a prima facie case of
employment discrimination under the indirect method, a
plaintiff must show: (1) he was a member of a protected class;
(2) he was meeting his employer’s legitimate job expecta-
tions; (3) he suffered an adverse employment action; and (4)
similarly situated employees not in the protected class were
treated more favorably. Koski v. Standex Int’l Corp., 307 F.3d
672, 676 (7th Cir. 2002). Since both sides agreed that Olson
met the first three requirements, the district court based its
grant of summary judgment on its conclusion that Olson
and Bloome were not similarly situated because they had
different academic credentials.
In its rigid adherence to Koski and McDonnell Douglas,
however, the district court skirts the ultimate question—
whether age was a motivating factor in the decision to fire
Olson. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610,
113 S. Ct. 1701 (1993) (“[L]iability depends on whether the
protected trait (under the ADEA, age) actually motivated
the employer’s decision.”); see also U.S. Postal Service Bd. of
Govs. v. Aikens, 460 U.S. 711, 715, 103 S. Ct. 1478, 1482
(1983) (“The ‘factual inquiry’ in a Title VII case is ‘[whether]
the defendant intentionally discriminated against the
plaintiff.’ . . . The prima facie case method established in
McDonnell Douglas was ‘never intended to be rigid, mecha-
nized, or ritualistic.’ ”) (citations omitted). In an attempt to
better reach the ultimate question of when, as here, an em-
ployee within the protected class has been discharged and
Nos. 04-1102 & 04-1464 5
replaced, we have required that the employee show only
that “he was performing his job to the employer’s legitimate
expectations” and that the employer “hired someone else
who was substantially younger or other such evidence that
indicates that it is more likely than not that his age . . . was
the reason for the discharge.” Robin v. Espo Eng’g Corp.,
200 F.3d 1081, 1089-90 (7th Cir. 2000). See also O’Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116
S. Ct. 1307, 1310 (1996) (“[T]he fact that a replacement is
substantially younger than the plaintiff is a far more reli-
able indicator of age discrimination than is the fact that the
plaintiff was replaced by someone outside the protected
class.”).
Olson presented evidence showing that his job perfor-
mance was satisfactory (Jeff Kimmel, the facility manager
of the plant where Olson worked, said that Olson had done
a good job as a crop salesman) and that Northern FS hired
someone substantially younger to replace him, even though
Bloome had no sales experience and, according to Kimmel,
was not more qualified than Olson. Those facts, coupled with
Keelen’s remark, stray or otherwise, that Olson was unde-
sirable because of his age, are sufficient to let a jury decide
whether Olson’s age actually played a role in Northern FS’s
decision to terminate his employment.
The district court found that, even if Olson presented a
prima facie case, he did not present evidence that Northern
FS’s explanation—that Keelen did not know Olson was in-
terested in a permanent position as a crop salesman—was
pretextual, as required by McDonnell Douglas. But, again,
a reasonable trier of fact could look at Keelen’s remark and
at Northern FS’s unusual decision to hire someone with no
sales experience to replace an experienced, highly success-
ful salesman and determine that Keelen’s explanation was
pretextual. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143, 120 S. Ct. 2097, 2106 (2000) (“[T]he trier
of fact may still consider the evidence establishing the
6 Nos. 04-1102 & 04-1464
plaintiff’s prima facie case ‘and inferences properly drawn
therefrom . . . on the issue of whether the defendant’s expla-
nation is pretextual.’ ”) (quoting Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 255 n.10, 101 S. Ct. 1089 (1981)).
For these reasons, we REVERSE the district court’s judgment
and REMAND the case for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-22-04