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Mullin v. Temco Machinery, Inc., No. 13-1338 (7th Cir. Oct. 10, 2013)

The Seventh Circuit continues on its march toward sensible decision-making in employment discrimination cases, reversing dismissal of an ADEA case and reaffirming that an employee may survive summary judgment by any combination of evidence "that a rational jury could conclude" proves "that the employer took the adverse action against the plaintiff because he is a member of a protected class." The evidence included a deposition admission by the CEO that the company hired a new replacement salesman in his 20s because "he was a young individual" and, though inexperienced, "our thought process on him was he was a young guy, give him a shot [to] drive around the state showing fire trucks and learn the business."

Mullin v. Temco Machinery, Inc., No. 13-1338 (7th Cir. Oct. 10, 2013): The plaintiff worked as a fire truck sales associate in Indiana, fired at age 56 for a series of performance deficiencies (or so the company claimed). The record, read in the light most favorable to the employee, established that in the years leading up to his termination (2008 and 2009), Mullin won Temco's "Salesman of the Year Award"  for selling the most fire trucks during the company's preceding fiscal year, each year accounting for over 50% of the territory's profit.  

Near the end of 2009, Temco placed a new manager, named Baylog, in charge of the Indiana Sales Division. Six months later, Baylog fired Mullin, while hiring two other salesmen at ages 24 and 29, neither of whom had experience selling fire trucks.

The circumstances preceding Mullin's termination appeared age-conscious:

"On May 5, 2010, Temco fired an Indiana sales associate, Michael Orrico, who was in his fifties. On the same day, Temco hired Andrew Wolka, then twenty‐four years old, and told Wolka not to report to work until May 14, 2010. Around the same time, it also hired Matthew Timmer, then age twenty‐nine. On May 13, Mullin was fired. Temco's CEO, Mikoola, told Mullin he was being fired because '[w]e are paying you too much for your sales.'"

The CEO of the company (named Mikoola), testified about the hiring of the 24-year-old candidate, citing Wolka's relative youth as both an advantage and detriment:

"Q: What were Mr. Wolka's strengths?

"A: Well, he was a young individual, to put it mildly, very, very inexperienced. But he was a pleasant person, promised us--or I should say made some claims that he would do an aggressive job, and get out there and drive a demo. He acquired a CDL, Commercial Driver's License, to drive the demos. And, you know, so we, you know, our thought process on him was he was a young guy, give him a shot [to] drive around the state showing fire trucks and learn the business.

"Q: ... What were Mr. Wolka's weaknesses?

"A: Well, his youth, and the gist, he didn't want to--the time commitment, he wasn't willing to put the time in to do what needed to be done. He had another interests [sic], to put it mildly."

The district court granted summary judgment, holding that the plaintiff had failed to rebut the various reasons Temco proffered for his termination, and thus failed to create a genuine issue of material fact on pretext.

The Seventh Circuit reverses.  Though noting that a plaintiff may ordinarily avoid summary judgment by either the direct or indirect method of proof, this case nonetheless followed the recent Seventh Circuit authority that regardless of the route chosen, what matters is the bottom-line demonstration "that a rational jury could conclude that the employer took the adverse action against the plaintiff because he is a member of a protected class."

The panel holds that there was "ample circumstantial evidence" of age bias:

1. "[A] highly experienced and relatively successful salesman was fired at precisely the time the company hired two 'very inexperienced' men who had never been in sales."

2. "Temco went to great lengths to emphasize how 'old' its employees are. For instance, Baylog testified that Mullin was 'at the age where he should have been in his prime ... . [I]t's the best time in a salesperson's life [--] between say 45 and 65 is their most productive years. Those are the people you search out and try to hire.'"

3. "Because Wolka's youth was explicitly part of Temco's 'thought process' in hiring him, the record is at least ambiguous. A jury is the appropriate body to evaluate the significance of these statements."

4. "[E]ach of Temco's alleged reasons for firing Mullin is either genuinely contested, seemingly inaccurate, or both. Certain of Temco's alleged reasons raise potential credibility issues, which a jury should resolve." For instance, while claiming financial reasons for firing Mullin, the company at the same time hired two other inexperienced sales associates as replacements, whose combined salaries well exceeded what Mullin received in salary at the time he was terminated. Moreover, Mullin's alleged acts of absenteeism or disobedience were repeatedly contested by other witnesses. Supposedly disappointed customers actually submitted affidavits in support of Mullin.

For these reasons, the case is remanded for trial.

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