In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3484

JOHN ZACCAGNINI,

Plaintiff-Appellant,

v.

CHAS. LEVY CIRCULATING CO.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01-C-4304—Matthew F. Kennelly, Judge.

____________

ARGUED FEBRUARY 11, 2003—DECIDED JULY 29, 2003

____________

Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit

Judges.

WILLIAMS, Circuit Judge. John Zaccagnini, who was discharged due to a reduction-in-force, claims that his former

employer, Chas. Levy Circulating Company (CLCC), failed

to rehire him in violation of the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq. The district court

granted CLCC’s motion for summary judgment, finding

that Zaccagnini could not show that CLCC’s proffered legitimate, nondiscriminatory reason for not rehiring him was

a pretext for age discrimination. We find that Zaccagnini

has established a prima facie case of discrimination and

that CLCC’s inconsistent explanations for its decision not
2 No. 02-3484

1 This was apparently the first RIF in the history of CLCC.

Zaccagnini does not challenge here his discharge in the RIF. 

2 Zaccagnini was the only employee laid off in the March 1997

RIF who sought to be rehired by CLCC.

to rehire Zaccagnini call the credibility of its proffered nondiscriminatory reason into question. Because we cannot say

that no reasonable jury could conclude that CLCC’s explanations are a pretext for age discrimination, we reverse the

judgment of the district court.

I. BACKGROUND

CLCC is a wholesaler of printed media that employs truck

drivers to distribute newspapers, magazines, and paperback

books to retail stores throughout the Chicago area.

Zaccagnini began working for CLCC in October 1994, and

it is undisputed that he satisfactorily performed his duties

as a driver for the company. On March 19, 1997, CLCC

discharged Zaccagnini pursuant to a reduction-in-force

(RIF).1

 At that time, Zaccagnini was 51 years old, and the

ten other drivers subject to the RIF ranged in age from 23

to 45. When Chuck Lynch, the vice president of operations

at the time of Zaccagnini’s discharge, informed Zaccagnini

that he was being laid off, Zaccagnini said that he would

like to be rehired should the company’s need for drivers

change. According to Zaccagnini, Lynch responded that if

CLCC were in the position to hire drivers in the future, he

would rehire Zaccagnini. A few months later, CLCC’s

business improved and the company hired four new drivers:

Angel Rodriguez (age 30), Andrea Staten (age 35), Orion

Hecker (age 31), and Jimmy Santiago (age 32). 

Zaccagnini filed a grievance with his union, Local 706,

claiming that he should have been rehired when CLCC

hired Rodriguez, Staten, and Hecker.2

 (As of the date of

Zaccagnini’s grievance, CLCC had not hired for its fourth
No. 02-3484 3

driver position.) In response, Kevin King, CLCC’s delivery

manager, scheduled a meeting with Zaccagnini, Lynch, and

Tony Judge, Sr., the union’s secretary treasurer. King later

summarized this meeting in a letter to Judge, stating that

(1) the group had reviewed Zaccagnini’s layoff; (2) “[t]he

company has the right to re-call or not re-call drivers”; and

(3) “[n]o laid off driver has been recalled [n]or are their [sic]

plans to recall any of them.” The union subsequently denied

Zaccagnini’s grievance. CLCC’s fourth new driver, Jimmy

Santiago, was hired on October 6, 1997. 

Zaccagnini filed a claim with the Illinois Department of

Human Rights (IDHR) and then filed suit in federal court,

alleging that CLCC’s decision not to rehire him constituted

age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. CLCC moved

for summary judgment, claiming that Zaccagnini had not

established a prima facie case under the ADEA because he

failed to show that he applied for an available driver

position and because he was not similarly situated to

Rodriguez, Staten, Hecker, and Santiago. The district court

concluded that Zaccagnini established a prima facie case of

age discrimination, but it granted summary judgment in

favor of CLCC after finding that Zaccagnini could not show

that the company’s legitimate, nondiscriminatory reason for

its decision not to rehire Zaccagnini was pretextual.

Zaccagnini appeals.

II. ANALYSIS

We review the district court’s grant of summary judgment

de novo, viewing the facts in the light most favorable to

Zaccagnini, as the nonmoving party, and drawing all reasonable inferences in his favor. Krchnavy v. Limagrain

Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002). Because

Zaccagnini does not have direct evidence of age discrimination, he must proceed under the familiar burden-shifting
4 No. 02-3484

3 The first and third prongs—that Zaccagnini is over forty and

that CLCC failed to rehire him—are not in dispute. 

framework set forth in McDonnell Douglas v. Green, 411

U.S. 792 (1973). See O’Connor v. Consol. Coin Caterers

Corp., 517 U.S. 308, 311 (1996) (assuming that the

McDonnell Douglas framework applies in the ADEA

context). 

To establish a prima facie case under the ADEA,

Zaccagnini must show that (1) he is a member of the

protected class (age forty or older); (2) he applied for and

was qualified for the position he sought; (3) CLCC rejected

him; and (4) CLCC hired another similarly situated individual for the position who was substantially younger than

Zaccagnini. See Ritter v. Hill ‘N Dale Farm, Inc., 231 F.3d

1039, 1045 (7th Cir. 2000). If Zaccagnini establishes a

prima facie case, then the burden shifts to CLCC to articulate a legitimate, nondiscriminatory reason for its decision

not to rehire him. See Grayson v. City of Chicago, 317 F.3d

745, 748 (7th Cir. 2003). If CLCC asserts a legitimate,

nondiscriminatory explanation, the burden returns to

Zaccagnini to show that the company’s proffered reason is

merely a pretext for age discrimination. Id.

A. Prima facie case 

On appeal, CLCC renews its argument that Zaccagnini

has not met his burden of establishing a prima facie case,

asserting that he has not shown he applied for the position

under the second prong, nor that he was similarly situated

to the other new hires, as is required under the fourth

prong.3

 The gravamen of CLCC’s challenges to Zaccagnini’s

prima facie case is that Zaccagnini was not referred by the

union, so he could not have been an applicant or similarly

situated to other union-recommended candidates for the
No. 02-3484 5

4 We also note that it is unclear exactly what else Zaccagnini

should have done to “apply” for a position with CLCC. Angela

McLeod, a member of CLCC’s human resources department at the

time, testified that “when [candidates] came in for interviews,

they filled out applications,” R.13, Ex. J at 8, but Zaccagnini was

never called for an interview, so we are unsure whether he ever

had the opportunity to complete a formal application.

position. Analysis of CLCC’s union-hiring rationale more

properly belongs in our analysis of this proffered explanation for its hiring decision, see E.E.O.C. v. Horizon/CMS

Healthcare Corp., 220 F.3d 1184, 1194-95 n.7 (10th Cir.

2000), so we will put this question aside for the moment

and first consider CLCC’s arguments that bear more directly on the prima facie case.

Zaccagnini’s grievance with the union satisfies the

requirement that he show he applied to be a driver.

Zaccagnini filed the grievance on August 31, 1997, more

than a month before CLCC filled its last driver position.

CLCC admits that Zaccagnini’s “grievance asserted

that . . . he felt he should be next to be rehired.” Def. Br. at

19 n.4. What is more, Zaccagnini discussed his grievance

with CLCC management and union officials on September

30th, more than a week before Santiago was hired, and

King’s letter summarizing the meeting indicates that the

group discussed Zaccagnini’s desire to be rehired.4

 Under

the circumstances, we believe that Zaccagnini’s grievance

satisfies his burden to show he applied for the driver

position. 

With respect to the fourth prima facie element, CLCC

contends that Zaccagnini was not similarly situated to the

four men hired for the driver positions because those new

hires, unlike Zaccagnini, were not involved in the RIF. In

determining whether two or more individuals are similarly

situated, we have centered our analysis on characteristics

such as education, experience, performance, qualifications,
6 No. 02-3484

and conduct. See Balderston v. Fairbanks Morse Engine

Div. of Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003).

CLCC’s citation to Radue v. Kimberly-Clark Corp., 219 F.3d

612, 618 (7th Cir. 2000), is not to the contrary. In Radue,

we found that involvement in the RIF was relevant when

the plaintiff claimed that younger employees who were subject to an RIF were being transferred to available positions,

while older employees, subject to the same RIF, were not.

Id. at 615. Here, unlike Radue, the pool of applicants for the

new driver positions was not limited to CLCC employees

subject to the RIF, so Zaccagnini’s membership in the RIF

is not a relevant factor in considering whether he is similarly situated to the four new hires. See Balderston, 328

F.3d at 321 (explaining that the similarly situated prong is

modified in RIF cases when the employer decides who will

be rehired from a defined group); see also Taylor v. Canteen,

69 F.3d 773, 779 (7th Cir. 1995) (Plaintiffs in RIF cases

“bear no heavier a burden of proof than other ADEA plaintiffs.”). That Zaccagnini was similarly situated to the new

hires with respect to relevant qualities such as experience,

performance, and qualifications, is undisputed and is

factually supported by his three years of satisfactory work

performance as a driver for CLCC. See Ghosh v. Ind. Dep’t

of Envt’l Mgmt., 192 F.3d 1087, 1091 (7th Cir. 1999) (holding that the similarly situated prong is satisfied where the

hired employees “had similar or lesser qualifications for the

job” than the plaintiff).

B. Legitimate, nondiscriminatory reason 

Because Zaccagnini has established a prima facie case of

age discrimination, CLCC next carries the burden of articulating a legitimate, nondiscriminatory reason for not hiring

Zaccagnini. See McDonnell Douglas, 441 U.S. at 802. On

appeal, CLCC defends its decision not to rehire Zaccagnini

with the explanation that “he was not rehired because the

Company had a practice of hiring only those individuals
No. 02-3484 7

who were referred by the Union,” Def. Br. at 21, and

Zaccagnini was not so recommended. Because this reason is

at least “facially legitimate,” the burden now reverts to

Zaccagnini to demonstrate that it is a pretext for discrimination. See id. at 804.

C. Pretext 

To establish pretext, Zaccagnini must show either that

CLCC was motivated by a discriminatory reason or that

CLCC’s proffered reason is unworthy of credence. See, e.g.,

McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 372 (7th

Cir. 1992). “Because a fact-finder may infer intentional

discrimination from an employer’s untruthfulness, evidence

that calls truthfulness into question precludes a summary

judgment.” Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir.

1995). So Zaccagnini may avoid summary judgment by

pointing to specific facts that place CLCC’s explanation in

doubt. See, e.g., Schuster v. Lucent Techs., 327 F.3d 569, 578

(7th Cir. 2003). 

In its initial briefing before the district court and during

discovery, CLCC maintained that Zaccagnini was not

rehired because the company had a policy not to rehire

workers who had been laid off. Zaccagnini argues that

CLCC’s current argument—that Zaccagnini was not rehired

because he was not referred by the union—is unworthy of

credence because CLCC did not rely on this second explanation until its reply brief at summary judgment. We agree.

From the beginning, CLCC appeared to explain its decision

not to rehire Zaccagnini by the existence of a policy not to

rehire drivers who were laid off. In his deposition,

Zaccagnini testified that this was the reason provided to

him during the grievance hearing: “It was a meeting in the

office saying that they were not going to rehire me. It was

their policy not to rehire. That’s what I remember.” R.13,

Ex. B at 68. Similarly, Chris Eckert, CLCC’s then-human
8 No. 02-3484

resources coordinator, stated to the Illinois Department of

Human Rights that “its [sic] been [CLCC’s] practice not to

rehire permanently laid off drivers.” That this reason was

provided at these early stages is relevant to our inquiry: the

consistency of the explanation provided by an employer at

the time of an employment decision and in an administrative proceeding is evidence of the veracity of the employer’s

explanation at summary judgment. See Stalter v. Wal-Mart

Stores, Inc., 195 F.3d 285, 291 (7th Cir. 1999); Perfetti v.

First Nat’l Bank of Chicago, 950 F.2d 449, 456 (7th Cir.

1991). 

CLCC’s reliance on its no-rehire policy explanation was

made even more explicit in its written discovery responses.

CLCC responded as follows to Zaccagnini’s interrogatory

requesting the reasons for its decision not to rehire him: 

Interrogatory No. 3: Please state whether or not

John Zaccagnini was considered for rehiring by

CLCC at or around the time that CLCC made the

[new] hires . . ., and if so, please state all the

reasons why Zaccagnini was not rehired; if not,

please state all the reasons why Zaccagnini was not

considered. 

Response: Zaccagnini was not considered for rehire

by CLCC in or around the Fall of 1997 because

there are no recall rights in the applicable collective

bargaining agreement and, therefore, laid off

employees were not considered by the company. In

addition, there is no historical practice of recall of

laid off drivers. 

This answer did not mention limiting hiring to union

candidates as a rationale for not rehiring Zaccagnini. 

Furthermore, as the district court noted, CLCC’s opening

brief in support of its motion for summary judgment focused

on its no-rehire explanation for its failure to rehire
No. 02-3484 9

5 CLCC argues that the union-hiring rationale was sufficiently

disclosed in the deposition testimony of King and McLeod. Both

mentioned that the drivers CLCC hires typically come from the

union. While CLCC may rely on the union for most of its candidates, this may not have been the reason for not rehiring

Zaccagnini. See Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 634

(7th Cir. 1996). Therefore, there is no reason to believe that mere

references to union involvement in hiring was sufficient notice

that CLCC intended to rely on this fact as an explanation for its

hiring. See Ghosh, 192 F.3d at 1094 (“[V]ague references to a

claim contained in large amounts of discovery do not constitute

sufficient notice.”).

Zaccagnini. See Zaccagnini v. Chas. Levy Circulating Co.,

No. 01 C 4304, at *1-2 (N.D. Ill. Aug. 23, 2002) (“Defendant’s opening brief mentioned the point in passing, and it

was not until the reply that it was relied upon prominently.

Plaintiff reasonably could have read defendant’s opening

brief as relying only on a single rationale—a purported ‘no

rehire’ policy.”).5

 Indeed, CLCC’s brief made clear that it did

not even rely on the union-hiring rationale as a secondary

explanation, noting instead that “even if there had not been

a no-rehire policy, King was not aware of Zaccagnini’s

interest in rehire. . . .”

For the first time in its reply brief at summary judgment,

CLCC made clear that it was offering another explanation

for its decision not to rehire Zaccagnini: the company has a

practice of only hiring drivers through the union and

Zaccagnini was not referred by the union. The fact that this

explanation did not arise until CLCC’s reply brief may be

enough in and of itself to preclude summary judgment for

CLCC on this issue, since a jury could reasonably find that

its failure to come forward with this explanation earlier

makes it not credible. See O’Neal v. City of New Albany, 293

F.3d 998, 1005-06 (7th Cir. 2002) (finding that the changed

reasoning of the employer was sufficient to preclude
10 No. 02-3484

summary judgment because a trier of fact could reasonably

infer from that evidence that the defendants’ proffered

reasons were pretextual); Stalter, 195 F.3d at 291 (“[Defendant] changed its story between the time of the state

administrative proceeding and the federal action. . . . Under

our case law, this changed story is evidence of pretext, and

entitles [plaintiff] to a trial on the issue of the reason for his

termination.”); Emmel v. Coca-Cola Bottling Co., 95 F.3d

627, 634 (7th Cir. 1996) (finding the fact that defendant did

not express an explanation for failure to promote earlier

despite several opportunities to do so compelling); Perfetti,

950 F.2d at 456 (holding that when an employer gives one

reason at the time of the adverse employment decision and

another at trial that is unsupported by the evidence, “the

jury could reasonably conclude that the new reason was a

pretextual after-the-fact justification”). We find CLCC’s

reliance on this explanation beginning at such a late date

in the proceedings to be “fishy,” see Russell v. Acme-Evans

Co., 51 F.3d 64, 70 (7th Cir. 1995), but here a jury could

rely on additional evidence to find this explanation to be

pretextual. 

Along with the shifting nature of CLCC’s justification,

Zaccagnini has put forward evidence that calls both CLCC’s

no-rehire and union-hiring rationales into question. For

example, with respect to its no-rehire explanation, Tony

Judge, the officer for Local 706 who CLCC claims supplies

all of its applicants, testified that he never told CLCC that

the union objected to CLCC’s hiring a previously laid-off

employee (“Absolutely not.”). When asked how CLCC could

have concluded that rehiring a worker would be problematic, he testified: “I don’t know where they could have ever

gotten that at all. That was never discussed. It was never,

ever, ever brought up. I have been—I have been an agent

and a union officer for that union since 1957. That was

never brought up with any of our employees.” R.13, Ex. E

at 10. Additionally, CLCC’s human resources policy explic-
No. 02-3484 11

6 CLCC argued that driver positions are not covered by this policy, but instead are subject to the terms of a contractual bargaining agreement with the union, but that agreement is silent as to

the rehire of former drivers.

itly allows for the rehire of former employees: “It is the

policy of the company to review former employees for rehire

on a case by case basis. Under certain circumstances it is in

the best interest of the company to rehire a former

employee.”6

 That a material fact may exist as to the policy

of rehiring former drivers is further demonstrated by

Lynch’s offer to rehire Zaccagnini if another position

became available. Although this assurance is not sufficiently concrete to constitute an offer, in combination with

other evidence it may indicate some flexibility in the

company’s rehire policies. 

Moreover, CLCC’s response to written discovery conflicts

with its explanation that all drivers are hired through the

union. In addition to his interrogatory requesting the

reasoning for CLCC’s decision not to hire him, Zaccagnini

also served CLCC with an interrogatory asking for all of the

ways in which CLCC recruits drivers. CLCC’s response does

not limit its methods for obtaining candidates to referrals

from the union:

Interrogatory No. 6: Please state all methods used

by CLCC to recruit applicants for drivers and/or

auxiliary drivers in 1997 (including any means by

which CLCC let it be known that it was considering

hiring). . . . 

Response: Word of mouth, referrals from Teamsters

Local #706 and walk-ins. 

“Answers to interrogatories are evidence.” Emmel, 95 F.3d

at 635. We have repeatedly emphasized the importance of

providing full and complete interrogatory answers. See

Fortino v. Quasar Co., 950 F.2d 389, 398 (7th Cir. 1991)
12 No. 02-3484

7 CLCC also makes an effort to explain the discrepancy between

the interrogatory answer, the IDHR report, and its practice of

hiring from the union by stating that it uses advertisements and

discusses job openings with walk-ins to recruit job applicants, but

it only hires individuals who the union recommends. We do not

find this explanation satisfactory. When asked at oral argument

why CLCC would ever need to recruit if all of its candidates were

supplied by the union, CLCC fell back on the above explanation—that regardless of how others were hired, King only looked

to the union for candidates. 

(noting that Fed. R. Civ. P. 26 requires a party to supplement an interrogatory answer when it is no longer true and

failure to amend is in substance a knowing concealment).

Here, CLCC’s answer makes clear that, at the very least,

not all driver candidates come from the union. The same

point was also indicated in the IDHR’s investigation, which

reported that CLCC’s “practice was to contact the Union

hall and inform the Union of a vacancy. . . but, because of

the volume of applicants produced from walk-ins and

advertisement[s], contacting the Union for applicants was

rare.” Given the differences between CLCC’s interrogatory

answer, the IDHR report, and its argument that CLCC has

a policy or practice of hiring drivers whose names are

provided by the union, a jury could decide CLCC’s explanation was pretextual. Emmel, 95 F.3d at 635 (finding that

when company’s plausible explanation differed from

response to an interrogatory, the jury could conclude that

the “justification had been concocted in preparation for trial

to fit the available facts”). 

Faced with the weaknesses in its two explanations, CLCC

now attempts to slice its justification even thinner by

proposing that even if not all hires in 1997 came from the

union, the four new hires brought on by King were all hired

as a result of referrals from the union.7

 CLCC moves away

from its argument that the company actually had a policy
No. 02-3484 13

of hiring only from the union, and instead focuses only on

the hiring for the new drivers. As an initial matter, this

seems different enough from the reason put forward in

its brief to the district court and to this court to constitute

yet another change in explanation. CLCC has not denied

that King was employed by CLCC at the time Interrogatory

No. 6, the interrogatory explaining CLCC’s recruitment

policy, was answered. Any clarification about its hiring and

recruitment policies could have been provided at the time

CLCC’s response was drafted. Additionally, it is too late in

the day for CLCC to offer further modification of its reasoning and still prevent the case from going to the jury. We

believe this case is one “in which the multiple grounds

offered by the defendant for the adverse action . . . are so

intertwined, or the pretextual character of one of them so

fishy and suspicious, that the plaintiff [can] withstand

summary judgment.” Russell, 51 F.3d at 70; see also O’Neal,

293 F.3d at 1005-06 (summary judgment precluded when no

contemporaneous documents discussed employer’s second

explanation and plaintiff was not informed of it at the time

of the employment action). 

Finally, CLCC suggests that we should discount

Zaccagnini’s evidence challenging CLCC’s proffered explanation because he has not provided any evidence pointing

to age as a factor in CLCC’s decision. Zaccagnini’s case has

proceeded under the indirect method of proof, and under

this analysis, a plaintiff need not produce evidence of

discrimination.

We emphasize that [plaintiff ’s] failure to bring any

evidence regarding age does not defeat his claim per

se, the special virtue of the indirect method of proof

is that it allows victims of age discrimination to

prevail without presenting any evidence that age

was a determining factor in the employer’s motivation. Holding to the contrary would violate one of

the purposes of McDonnell Douglas and Burdine,
14 No. 02-3484

which is to permit plaintiffs to recover, even if they

are unable to discover evidence of discrimination,

simply by proving that the employer’s proffered

justification is unworthy of credence.

Perfetti, 950 F.2d at 451-52 (citation omitted). When

combined with CLCC’s shift in explanations, Zaccagnini has

produced enough evidence to call into question CLCC’s

profferred justification, and as a result we find that a jury

could determine CLCC’s reasoning to be pretextual. 

III. CONCLUSION

For the foregoing reasons, we REVERSE the judgment of

the district court and REMAND the case for proceedings

consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-29-03