Olson v. Northern FS, Inc., No. 04-1102 (7th Cir.) Brief as amicus May 20, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _________________________________________ No. 04-1102 _________________________________________ CHARLES P. OLSON, Plaintiff-Appellant, v. NORTHERN FS, INC., an Illinois corporation, Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Western Division Judge Philip G. Reinhard ______________________________________________ Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellant ______________________________________________ ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 Tel. (202) 663-4733 FAX (202) 663-7090 E-mail jennifer.goldstein@eeoc.gov CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. _________________________ Jennifer S. Goldstein TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT .........................................................i TABLE OF AUTHORITIES ....................................................................iii STATEMENT OF INTEREST ...................................................................1 STATEMENT OF THE ISSUE ..................................................................1 STATEMENT OF FACTS.......................................................................1 ARGUMENT The District Court Erred in Granting Summary Judgment Because its Faulty Analysis of the Evidence in this Case Misdirected its Attention from the Critical Question of Age Discrimination....................................................................7 A. The District Court Erred in its Weighing of Keelen's Remark ....................7 B. The District Court Erred by Making an Irrelevant Factor a Component of the Prima Facie Case ......................................................... 10 C. The District Court Erred in its Assessment of Olson's Evidence of Pretext ......14 CONCLUSION ..............................................................................18 CERTIFICATE OF COMPLIANCE ...............................................................18 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).......................................9 EEOC v. Bd. of Regents of the Univ. of Wisc. Sys., 288 F.3d 296 (7th Cir. 2002) .......13 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) ...................................12 Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759 (7th Cir. 2001) ...................... 9,10 Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000) ................................ 9,10 Hunt v. City of Markham, No. 97-C-5620, 1999 WL 35332 (N.D. Ill. Jan. 13, 1999) .......10 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ........................ 11,12 Koski v. Standex Int'l Corp., 307 F.3d 672 (7th Cir. 2002) ............................11 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ................................ 1,12 Miller v. Borden, Inc., 168 F.3d 308 (7th Cir. 1999) ................................. 12,13 O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996) ......................... 12,13 Pilditch v. Bd. of Educ. of Chicago, 3 F.3d 1113 (7th Cir. 1993) ......................12 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) ....................... 8, 9, 12, 13, 14,15 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) .................................. 8, 11, 12,15 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) .................................... 11,12 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ......................... 11, 14,15 United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) ............8,11 STATUTE Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. .........................1 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission") is the agency charged by Congress with the interpretation, enforcement, and administration of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. The district court in this case held, on summary judgment, that plaintiff Charles Olson could not establish unlawful age discrimination because evidence of an age-biased remark by the decision maker was not "direct evidence" and because Olson, aged 59, could not show he was "similarly situated" to the 22-year-old who replaced him. The Commission believes that the district court's holding reflects a profound misunderstanding of the evidentiary demands of employment discrimination cases and of the McDonnell Douglas framework, which is simply a tool designed to get at the critical question of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We therefore offer our views to the Court. STATEMENT OF THE ISSUE Whether the district court's analysis of the evidence in this case considering an age-biased remark only to decide if it was "direct evidence" and imposing a prima facie case requirement with no logical connection to the factual context of the case was in conflict with the Supreme Court's directive to apply the usual rules of civil litigation to determine whether the employer has engaged in age discrimination. STATEMENT OF FACTS Plaintiff Charles Olson began working in the agricultural supply business in 1960. R.13, Exh. 1 ("Olson Dep.") at 10. Much of Olson's work consisted of "crop sales" visiting farms to assess weed and insect conditions, to take soil samples, to check for plant diseases, to make product recommendations to farmers, and to sell seeds, fertilizers, and pesticides to the farmers. Olson Dep. at 11-15; 24. The company for which Olson worked changed over the years due to acquisitions and mergers until 1991, when Olson's employer merged with defendant Northern FS, Inc., another agricultural supply company. Id. at 16. Shortly after the merger, the company's general manager asked Olson if, because of his credentials, he would go into "building sales" selling grain storage structures and related buildings and equipment. Id. at 25-26. Olson worked in building sales until 1994, when Steve Keelen, the territory manager, asked Olson if he would return to crop sales to take over the territory of a departing salesman. Olson did so, and in both 1996 and 1997 he won sales awards for exceeding his sales goals. The awards included a trip to Cancun, Mexico for Olson and his wife in 1996, and a cruise on the "Ecstasy" for Olson and his wife in 1997. R.13, Exh. 11 ("Nienhuis Dep.") at 24. Keelen was Olson's supervisor until February 1997, when Keelen left Northern FS. In June 1997, Olson returned to selling agricultural buildings, a job Olson held until February 2000, when Northern FS decided to exit the agricultural building market. After Northern FS eliminated the agricultural building component of its business, it assigned Olson to work in its Marengo (Illinois) plant, where Olson had worked prior to selling agricultural buildings. Olson Dep. at 56. There were no open sales jobs at that time, so Olson worked at the plant, answering the telephone, unloading trucks, working in the front office, taking soil samples, and generally doing "[p]retty much whatever he was asked to do," according to the Marengo facility manager Jeff Kimmel. R.13, Exh. 6 ("Kimmel Dep.") at 9. In August 2000, Keelen returned to the Marengo facility as the territory manager. Olson approached Keelen shortly after his return to ask him "if he had any idea of what I should be doing other than what I was doing." Olson Dep. at 90. Keelen asked Olson a question or two, and then told Olson "[t]hat because of my age I was undesirable in the business world irregardless of years of experience." Id. Olson indicated he was upset by the comment, and stated that when he left Keelen's office he asked Keelen's secretary, "Sue, . . . do I look undesirable?" Id. at 92. At the time of Keelen's comment, Olson was 58 years old. Two months later, in October 2000, a Northern FS crop salesman named Dennis Schwind engaged in conduct that led Keelen to fire Schwind immediately. October is a critical time in the crop sales business, as it marks the middle of the fall fertilizer season. Olson Dep. at 64. Within a day or two after Schwind's dismissal, Keelen called a meeting with Kimmel, Olson, and another former crop salesman, John Nienhuis, to discuss how to cover Schwind's territory in a short period of time. Nienhuis Dep. at 32-35. As Nienhuis described it, Keelen stressed that "[w]e don't know where Dennis [Schwind] has been with our patrons on our sales process. We need to get our customers called on." Id. at 35. Keelen therefore asked Olson and Nienhuis to work together to cover Schwind's sales territory. According to Nienhuis, Keelen asked Olson to do the sales work and Nienhuis to "help with the sales work," and Keelen told both of them: "you guys are familiar with the customers in the area. They know you. . . . The fit is great. We won't have to hire anyone else because you two guys are already working for the company." Id.; see also Olson Dep. at 65 ("I was asked to take crop sales[] for the Marengo territory. And John Nienhuis was to assist."). Based on the discussion during that meeting, Nienhuis stated, he assumed that "once we got through the fall season . . . Chuck [Olson] would be calling on all of [the customers]," and that he would take the winter off and eventually assist with sales and work part-time in the operations end of the business. Nienhuis Dep. at 88. Olson likewise testified that his expectation was that Schwind's old sales territory would be his permanently, and that the two-person arrangement was simply for the fall, to enable them to do the fall sales work quickly. Olson Dep. at 66-68. Olson stated that he was never told the situation was temporary, or that he would have to apply to Northern FS if he wanted to keep the crop sales job permanently. Id. at 65; 68-69. Olson and Nienhuis worked together as crop salesmen until January 2001. Nienhuis, age 54, was the first to discover he no longer had the sales job. Nienhuis was at the plant on a Saturday in early January when someone named Jacob Bloome called to say he was the new crop salesman and he would be coming by to get the sales pickup truck immediately. Nienhuis Dep. at 44. Nienhuis indicated that the "young guy" did come by with some friends to get the truck. Id. Olson discovered he no longer had the sales job the following Monday, January 8, 2001, when Bloome first showed up for work. Olson Dep. at 72-73. Keelen called Olson into his office and told him that Bloome had the sales position and that, in the short term, he would have to resume helping out at the warehouse. Keelen then asked Olson whether he "had ever considered doing anything different." Id. at 80. When Olson asked "like what," Keelen told him that the only open job he had was driving a truck, which Olson could not do because a vision problem in one eye precluded him from acquiring the requisite commercial driver's license. Id. There was conflicting evidence about whether Olson was ever told he would have to apply for the salesman job or whether he knew Northern FS was seeking applicants. According to Keelen, he told both Olson and Nienhuis in roughly November that they would have to apply for the crop salesman job, and he stated that he would have considered Olson for the position "[i]f he had applied." R.13, Exh. 3 ("Keelen Dep.") at 62-63; 65. But Olson and Nienhuis stated that Keelen never told them, at any time after the October meeting, that they would need to apply for the crop salesman job. Olson Dep. at 68; Nienhuis Dep. at 83. Moreover, the evidence indicates that Northern FS did not put out any formal advertisements for the sales position, there was no posting of the job opening on the company bulletin board, and Northern FS never made any sort of announcement of the opening in a group meeting or in a group setting. Kimmel Dep. at 36. The evidence also indicates that there were other jobs that, by contrast, were publicized through official job postings. Nienhuis Dep. at 73-74. Both Olson and Nienhuis stated that they were completely unaware that Northern FS was seeking applicants for the crop salesman position. Olson Dep. at 64- 65; Nienhuis Dep. at 83. Keelen indicated that he sought candidates through Growmark, an agricultural cooperative consisting of member companies, to which Northern FS belonged. Keelen Dep. at 69. Keelen did not explain why he asked Growmark to send him job candidates, but did not post or otherwise publicize the job opening. Keelen also did not indicate what job qualifications such as having completed a Growmark college internship he requested Growmark use to determine which candidates it would refer to Northern FS. Of the candidates Growmark did refer, Keelen and Kimmel, the facility manager, together interviewed two. Kimmel Dep. at 37. One was Jacob Bloome, aged 22, and "the other kid," as Kimmel referred to him, was roughly the same age. Id. at 32-33. Bloome had no sales experience but had an agriculture-related degree, came from a family farm, and completed an internship with Growmark during college. Keelen Dep. at 71-72. Keelen and Kimmel together decided that, of the two candidates, Bloome was the stronger, and they offered him the job. Kimmel Dep. at 33. Kimmel stated in deposition testimony that he believed Olson was qualified to be a crop salesman, that an agriculture degree was not a requirement for the sales position, and that he did not believe that Bloome was more qualified than Olson for the position. Kimmel Dep. at 37-38. As Kimmel put it, "He was less experienced . . . I don't think he was any more qualified than [Olson or Nienhuis]." Id. at 38. Kimmel also stated that he did not believe that Bloome had a better chance for success in the position than Olson. Id. After Bloome began working as crop salesman, Olson spent the next several days working at the warehouse, helping out with whatever tasks needed to be done. At one point, Olson suggested to Keelen that he could help various salesmen acquire soil samples and scout fields. Olson Dep. at 83. Keelen responded that he would look into Olson's suggestion, but when Keelen called Olson into his office a few days later, on January 19, 2001, Keelen told Olson that "he had nothing" for Olson and that Olson's employment was terminated immediately. Id. at 83-84. Olson was 59 years old at the time and had spent 41 years with Northern FS and its predecessor companies. The reaction among Northern FS employees to Olson's firing ranged from surprise to anxiety about their own future with the company. Kimmel, for example, stated that he was surprised to learn that Keelen had fired Olson because "I always thought Chuck did a good job. He seemed to be well liked and well respected out in the country by our customers. Had a good reputation." Kimmel Dep. at 39. Nienhuis, for his part, indicated that he thought there was a "youth movement" at the company and that he felt anxious that he "could be the next one out the door." Nienhuis Dep. at 45; 51. Nienhuis also stated that he suggested to Olson that he call the EEOC "to check out his rights" because Olson's firing "looked to me like a pretty blatant case of age discrimination." Id. at 78. Olson filed an age discrimination charge with the EEOC. The Commission conducted a full investigation and found reasonable cause to believe Northern FS had discriminated against Olson. R.17 at 35  97. Olson subsequently filed suit, and Northern FS moved for summary judgment. In its memoranda to the district court, Northern FS argued that even if Keelen had commented that Olson's age made him undesirable in the business world, that comment was not direct evidence of discrimination. R.12 ("Def. Mem.") at 9-10. Northern FS also conceded, for purposes of the motion, that Olson was performing his job in a satisfactory manner, but it argued that Olson could not show he was "similarly situated" to Bloome. Def. Mem. at 10. Finally, Northern FS conceded, again for purposes of the motion, that Olson was never told he could apply for the position of crop salesman or that the position was considered vacant, but it argued that Keelen mistakenly believed Olson was not interested in the position. R.19 ("Def. Reply Mem.") at 2, 7. The district court granted Northern FS's motion. R.21 ("Mem. Op."). The court first considered whether Keelen's comment about Olson's age was "direct evidence of discriminatory intent." Id. The court deemed the comment an "isolated statement" made five months before the termination and not made in reference to the termination. Id. "It was a stray remark," the court concluded, and as such was insufficient evidence of discrimination under the "direct method." Id. The court next turned to the "indirect method" of proof. Id. According to the court, Olson had to show he was "similarly situated" to younger employees treated more favorably than he. Id. The court held that Olson had failed to show he was "directly comparable" to Bloome "in every material respect" because "Bloome's degree, family farm background and internship experience render him not similarly situated" to Olson. Id. Olson thus could not establish a prima facie case of discrimination, according to the court. Finally, the court stated that even if Olson had established a prima facie case, he did not establish that "defendant's reasons for hiring Bloome or its professed unawareness Plaintiff wanted the position permanently was a lie." Id. Olson appealed. R.22. ARGUMENT The District Court Erred in Granting Summary Judgment Because its Faulty Analysis of the Evidence in this Case Misdirected its Attention from the Critical Question of Age Discrimination The Supreme Court repeatedly has stressed that trial courts should not "treat discrimination differently from other ultimate questions of fact." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (quotations omitted); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993) (same); United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (same). "As in any lawsuit," a court "should consider all the evidence," Aikens, 460 U.S. at 714 n.3, and in so doing should apply "general principle[s] of evidence law." Reeves, 530 U.S. at 147. In this case, the district court did not heed the Supreme Court's instructions. Instead the court erected evidentiary hurdles that bore little or no relation to the ultimate question of whether there was "sufficient evidence for [a] jury to find that [Northern FS] had intentionally discriminated." Reeves, 530 U.S. at 153-54. The court's erroneous view of the evidentiary standards led it to disregard the substantial evidence that Northern FS terminated Olson from his crop sales job on the basis of age, and to grant summary judgment when the case should have gone to the jury. A. The District Court Erred in its Weighing of Keelen's Remark. The district court's first error was in its consideration of Keelen's remark to Olson that Olson's age made him "undesirable in the business world" regardless of his years of experience. Keelen was the decision maker in this case, his remark reflected an age-based animus, and it came only four months before Keelen was interviewing a pair of 22-year-olds with no sales experience to replace the 59-year-old Olson, who had decades of crop sales experience. The district court considered Keelen's age-based remark only to determine whether the remark was "direct evidence of discriminatory intent." The court held it was not direct evidence but instead was a "stray remark," and then disregarded it in considering Olson's case under the McDonnell Douglas, or "indirect," method of proof. The district court's misguided effort to characterize the remark as "direct" or not is at odds with the principle that district courts should treat discrimination the same as other ultimate questions of fact. See Reeves, 530 U.S. at 148; see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (courts should not depart from general rules of civil litigation that require plaintiff prove his case using direct or circumstantial evidence); id. ("[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence") (quotations omitted). Drawing on this basic principle, the Supreme Court in Reeves a case in which the plaintiff sought to prove age discrimination by using the McDonnell Douglas, "indirect" framework criticized the court of appeals for discounting age-related comments made by the decision maker "on the ground that they 'were not made in the direct context of Reeves's termination.'" Reeves, 530 U.S. at 152. The statements at issue in Reeves were not direct evidence, but they permitted an inference that the decision maker "was motivated by age-based animus" and so should not have been disregarded. Id. at 151-52. The district court's similar decision in this case to disregard Keelen's remark on the ground that "it was not in reference to [Olson's] termination" thus is incompatible with the Court's holding in Reeves. This Court likewise has stressed that "our cases should not be overread to mean that 'stray remarks' of a derogatory character are never evidence of discrimination." Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001) (citing Hunt v. City of Markham, 219 F.3d 649, 652 (7th Cir. 2000)). "What our cases hold," the Gorence Court explained, "is that if someone not involved in the decisionmaking in a plaintiff's case expressed discriminatory feelings, that is not evidence that the decision was discriminatory." Gorence, 242 F.3d at 762 (emphasis added). In this case, Keelen plainly was involved in the challenged decision. Moreover, in Hunt, this Court rejected the argument that discriminatory remarks should be disregarded because they were not "contemporaneous" with the challenged decision. Hunt, 219 F.3d at 652 (possible to infer decision makers influenced by discriminatory feelings when expressions of such feelings made "around the time of" the decision). Indeed, in Hunt, it was unclear precisely when the discriminatory comments were made; plaintiff Hunt testified only that "[h]e heard these comments over the last few years but does not know the dates." Hunt v. City of Markham, No. 97-C-5620, 1999 WL 35332, at *2 (N.D. Ill. Jan. 13, 1999). Keelen's comment in this case, coming just a few months before he began the process of replacing Olson with a considerably younger individual, therefore should constitute evidence that he was influenced by age in getting rid of Olson. B. The District Court Erred by Making an Irrelevant Factor a Component of the Prima Facie Case. In its summary judgment memoranda to the district court, Northern FS made several significant concessions. Northern FS acknowledged or conceded, for purposes of its motion, that: (1) Olson was 59 years old; (2) he was qualified for the crop sales position and was performing that job in a satisfactory manner; (3) he was removed from the crop sales position and ultimately discharged; and (4) Northern FS replaced Olson by filling the crop sales position with a 22-year- old. See, e.g., Def. Mem. at 7-8 ("Keelen . . . always found Olson to be a satisfactory employee"); Def. Reply Mem. at 5 (Olson was "qualified"). Northern FS also conceded that the qualifications of the 22-year-old Bloome "are immaterial to this motion because Northern FS does not assert that Olson was not qualified." Id. at 5. Despite these concessions, the district court held that Olson had not made out a prima facie case of age discrimination because he had not shown he was similarly situated to Bloome. The court went on to note that Olson was not directly comparable to Bloome because, among other things, Bloome possessed "internship experience" while Olson did not. Mem. Op. The court did not explain why it was raising this evidentiary hurdle, except to state summarily that a plaintiff "must" show that similarly situated employees were treated more favorably than the plaintiff and to cite to a Seventh Circuit decision where the prima facie case was never an issue. Id. (citing Koski v. Standex Int'l Corp., 307 F.3d 672, 676 (7th Cir. 2002)); see also Koski, 307 F.3d at 676 (defendant "concedes . . . that Koski would be able to establish his prima facie case"). The district court's requirement that Olson make an additional evidentiary showing that bears no logical connection to the factual context of this particular case is at odds with the very purpose of the prima-facie-case requirement described in McDonnell Douglas. The McDonnell Douglas framework is meant to provide "a sensible, orderly way" to present and evaluate evidence, Aikens, 460 U.S. at 715, and "is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). The purpose of the prima facie case is satisfied when a plaintiff puts forward evidence creating an inference of discrimination sufficient to trigger the requirement that the employer produce an explanation for its actions. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) ("the prima facie case relates to the employee's burden of presenting evidence that raises an inference of discrimination"); Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (same); see also Burdine, 450 U.S. at 253 (because establishing prima facie case shifts only burden of production, not proof, to employer, making out prima facie case is "not onerous"); Hicks, 509 U.S. at 506 (prima facie case requirements are "minimal"). Precisely what the prima facie evidence will be is not fixed, as the district court opinion here seems to imply, but "necessarily will vary" from case to case. McDonnell Douglas, 411 U.S. at 802 n.13; see also Swierkiewicz, 534 U.S. at 512 ("the precise requirements of a prima facie case can vary depending on the context and were 'never intended to be rigid, mechanized, or ritualistic'") (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); Teamsters, 431 U.S. at 358 (McDonnell Douglas "did not purport to create an inflexible formulation"); Pilditch v. Bd. of Educ. of Chicago, 3 F.3d 1113, 1116 (7th Cir. 1993) ("the prima facie elements were never meant to be applied rigidly"). Thus in McDonnell Douglas, a failure-to-hire case, the plaintiff had to show he belonged to a racial minority; he sought and was qualified for the job; he was rejected for the job; and after his rejection, the job remained open and the employer continued to seek to fill the job. McDonnell Douglas, 411 U.S. at 802. In Reeves, by contrast, an ADEA discharge case, the plaintiff "undisputed[ly]" established a prima facie case by showing that he was over 40 years old, that he was otherwise qualified for his position, that he was discharged, and that his employer "successively hired three persons in their thirties to fill [plaintiff's] position." Reeves, 530 U.S. at 142; see also Hicks, 509 U.S. at 506 (prima facie case established where plaintiff showed he was black, qualified for position, demoted and later discharged, and position remained open and was ultimately filled by white person); Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1999) ("In situations involving the simple termination of a single employee, normally the employee must establish that the employer sought a younger replacement for him."). However the prima facie case requirement is formulated, though, what is critical is that there "be at least a logical connection between each element of the prima facie case and the illegal discrimination" alleged by the plaintiff. O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996). There is no logical connection between what was alleged in this case and the district court's requirement that Olson show he was directly comparable to Bloome in every material respect. Under Olson's version of events, Keelen simply decided to get rid of him because he thought Olson too old for the crop sales job. Under Northern FS's version of events, Keelen never even considered Olson for the crop sales job because he thought Olson was not interested in having the job permanently. Northern FS did not assert that it replaced Olson with Bloome because it thought Bloome the better qualified candidate; rather, Northern FS asserted that Olson was never in the picture because he submitted no application for the job. Under neither party's version, then, are Bloome's qualifications and background relevant to the question of whether Northern FS discriminated against Olson. Cf. O'Connor, 517 U.S. at 312 (court should not "mak[e] an utterly irrelevant factor an element of the prima facie case"). When the evidence is viewed in light of Olson's claim in this case, Olson "undisputed[ly]" met his prima facie burden by showing, as did the plaintiff in Reeves, that he was over 40, qualified for his job, discharged from that job, and replaced by someone 37 years younger than he. Reeves, 530 U.S. at 142; see also O'Connor, 517 U.S. at 313 ("the fact that a replacement is substantially younger than the plaintiff is . . . [an] indicator of age discrimination"); EEOC v. Bd. of Regents of the Univ. of Wisc. Sys., 288 F.3d 296, 302 (7th Cir. 2002) ("Our decisions have defined 'substantially younger' as 10 years younger."). This basic showing was sufficient to shift to Northern FS the burden of producing a legitimate, nondiscriminatory explanation for its actions, and the court should have moved on to consider the critical, ultimate question of intentional discrimination. C. The District Court Erred in its Assessment of Olson's Evidence of Pretext. Northern FS did proffer an explanation for hiring Bloome and firing Olson. According to Northern FS, Keelen believed, albeit mistakenly, that Olson was not interested in the crop sales position. Def. Reply Mem. at 2. It was Keelen's belief in Olson's disinterest, and not Bloome's qualifications, that led to Olson's removal from the sales job, according to Northern FS. Def. Reply Mem. at 5; see also id. at 2 (reason Olson did not get crop sales job "was due to that mistake"). The district court, in its cursory consideration of the pretext issue, deemed it significant that Olson "has not presented evidence that defendant did not believe Bloome was a preferable candidate for the sales position for reasons other than age." Mem. Op. In other words, the district court required Olson to rebut Northern FS's reasons for choosing to hire Bloome. But the reason Northern FS picked Bloome over the other 22-year-old Keelen and Kimmel interviewed for the sales job has nothing to do with the legitimate, nondiscriminatory reason Northern FS proffered for terminating Olson that is, it thought him uninterested in the job. A showing of pretext, under Supreme Court precedents, entails showing that the "employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256 (emphasis added); Reeves, 530 U.S. at 143 (same). Neither precedent nor logic require that a plaintiff rebut an unproffered explanation, as the district court seemed to require in this case. Rather than faulting Olson for omitting evidence irrelevant to his case, the court should have considered all the evidence presented to ascertain whether there was sufficient evidence that Northern FS intentionally discriminated against Olson on the basis of age to submit the case to a jury. See Reeves, 530 U.S. at 142-43 (once employer produces legitimate explanation, "'the McDonnell Douglas framework with its presumptions and burdens' disappeared . . . , and the sole remaining issue was 'discrimination vel non'") (citations omitted). Thus the district court should have considered Keelen's remark to Olson about his age and undesirability in the business world. The court should have considered the fact that Northern FS chose to interview two 22-year- old "kids" with no sales experience to replace the 59-year-old Olson. See Reeves, 530 U.S. at 143 (even though prima facie case drops out of the picture, "the trier of fact may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual'"). Finally, the court should have considered the evidence that Northern FS's explanation Olson's apparent disinterest in the position was implausible and unworthy of credence. The district court stated, summarily, that Olson "does not present evidence that defendant's . . . professed unawareness Plaintiff wanted the position permanently was a lie." Mem. Op. In fact, Olson did present evidence that Northern FS's explanation was not credible. In putting forward its explanation, Northern FS again made significant concessions. It conceded, for purposes of its motion, that Olson "was never told that his filling the sales position in late 2000 was a temporary arrangement." Def. Reply Mem. at 7. It "concede[d] . . . that Olson was not told of the impending vacancy" in the crop sales position. Id. at 6. Finally, Northern FS "concede[d], for purposes of its motion, that Olson was never told he could apply for the position of crop salesman on a permanent basis." Id. at 1; see also id. at 7 (conceding that "Olson was never directly told that if he was interested in the crop sales position, he would have to apply"). What Northern FS did not concede on summary judgment was age discrimination: it argued "that even if Keelen was mistaken in his assumption that Olson was told he could apply for the crop sales job, the reason for not getting the job was due to that mistake not discriminatory animus." Def. Reply Mem. at 2 (emphasis added). The problem with Northern FS's argument is that there is absolutely no evidence in the record that Keelen mistakenly believed Olson knew he would have to apply for the job. In his deposition testimony, Keelen stated definitively that he told Olson and Nienhuis in October that the crop sales position was temporary. Keelen Dep. at 60 ("my statement to them [Olson and Nienhuis] was Dennis [Schwind] has been let go . . . and, until I can get someone hired, I want you two guys to fill the position on a temporary basis"). Keelen repeatedly stated that, in November, he and Olson had a conversation in which he told Olson "if you have any interest in the [crop sales] job, you need to apply just like anyone else." Keelen Dep. at 62; see also id. at 63 ("[Olson] was in my office and . . . I said to him . . . if you have any interest, you need to submit a written request."). Keelen stated that he also told Nienhuis in November he would need to apply for the sales job. When asked about the fact that Olson and Nienhuis might have a different recollection of what Keelen had said, Keelen responded that it was they who must be mistaken, not he. Id. at 61. Keelen added that when Olson did not apply, he assumed Olson was not interested in the job. Id. at 77. Nowhere did Keelen state that his assumption might have been the result of a mistake. The inference that the record evidence would support is that Keelen's explanation is a dishonest one because Keelen's testimony is directly contradicted by several individuals. Olson stated that Keelen never told him the job was temporary, nor did Keelen tell him he would need to apply for the job. Olson Dep. at 64-65, 68. Nienhuis likewise testified that Keelen never said, in the October meeting, that Olson only had the crop sales job temporarily. Nienhuis Dep. at 83. Nienhuis also stated that he had no idea the company was interviewing people for the job until Bloome called to claim the crop sales truck in January. Id. at 44, 83. Even Kimmel stated that he did not think that anyone discussed whether the job was temporary during the October meeting. Kimmel Dep. at 11. Moreover, it was undisputed that there was no job posting at Northern FS or a public announcement conveying to Northern FS employees that the company was seeking applicants for the crop sales position after the time that Olson held the job. Id. at 36. There also was evidence that, in August, Olson on his own had approached Keelen to ask for some direction "other than answering the telephone." Olson Dep. at 91. This evidence makes Keelen's assertion that he believed Olson had no interest in the position extremely implausible. In light of this evidence, a jury could reasonably find that Northern FS's explanation for replacing Olson with Bloome was a lie and that the real reason for its action was age discrimination. CONCLUSION For the foregoing reasons, we urge this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel __________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This brief contains 5,990 words. ____________________________ JENNIFER S. GOLDSTEIN CERTIFICATE OF SERVICE I hereby certify that two copies of this brief were mailed, first class, postage prepaid, on this 20th day of May, 2004, to the following: Andrew H. Haber Dennis R. Favaro Favaro & Gorman, Ltd. 835 Sterling Avenue Suite 100 Palatine, IL 60067 Stephen E. Balogh Williams & McCarthy 321 W. State Street P.O. Box 219 Rockford, IL 61105 ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 May 20, 2004 ______________________________________________ 1 Keelen indicated that he had the ultimate authority to decide who received the employment offer, but he stated that he “involved the plant manager Jeff Kimmel in that process and let him have a final say.” Keelen Dep. at 70. 2 In the end, Kimmel was very dissatisfied with Bloome’s performance. He stated that he thought Bloome proved to be “substandard” and that he frequently complained about Bloome’s performance to Keelen. Kimmel Dep. at 40-42. Bloome is no longer with Northern FS. Id. at 40. 3 Keelen and Kimmel interviewed Bloome in early December, four months after Keelen’s remark. Kimmel Dep. at 18. Bloome’s first day at work, and the ensuing termination of Olson’s employment, occurred five months after the remark. 4 Northern FS also conceded, again for purposes of its summary judgment motion, that Keelen made the remark that Olson was undesirable in the business world because of his age. Def. Reply Mem. at 1. 5 There are often cases where there is some logical basis for requiring a “similarly situated” showing. See, e.g., Miller, 168 F.3d at 313 & n.2 (noting such a showing may be appropriate in the reduction-in-force context). The Commission’s point is simply that this is not such a case. 6 See also Hicks, 509 U.S. at 510-11 (once defendant carries burden of production, McDonnell Douglas presumption “drops out of the picture” and what remains is “the ultimate question: whether the plaintiff has proved ‘that the defendant intentionally discriminated against [him]’”) (citation omitted); Burdine, 450 U.S. at 256 (at pretext stage, plaintiff may show intentional discrimination “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing the employer’s proffered explanation is unworthy of credence”). 7 Before the district court, Northern FS mischaracterized Nienhuis’ deposition testimony on this point. Northern FS stated that Nienhuis testified that he knew the job was temporary, that Keelen had told him sometime after the October meeting that he would have to apply if he wanted the job, and that Nienhuis knew Northern FS was looking for a permanent crop sales person. Def. Mem. at 4; Def. Reply Mem. at 6 n.2 & 7. In fact, Nienhuis testified that he asked Keelen about returning to a crop sales position on the Saturday when Schwind was fired. Nienhuis Dep. at 39-40. Once Keelen held a meeting to give Olson and Nienhuis Schwind’s crop sales job, Nienhuis testified that he thought “hey, this is great. This is what I had requested and so I dropped the subject.” Id. Nienhuis also explained that he knew the situation of two people doing the job was not a permanent one, but that he assumed that Olson would have the job permanently after the fall season and that he would resume working part-time in sales as a sales assistant. Id. at 84-88.