## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-1102 & 04-1464

C HARLES P. O LSON
, Plaintiff-Appellant

, v.

N ORTHERN FS, I NC
., Defendant-Appellee.

____________ Appeals from the United States District Court for the Northern District of Illinois, Western Division. No. 02 C 50147— Philip G. Reinhard

, Judge.

____________ A RGUED S EPTEMBER 9, 2004—D ECIDED O CTOBER 22, 2004

____________

Before E ASTERBROOK , E VANS , and S YKES
, Circuit Judges

. E VANS
, 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 co nclude that the company likelymade a bad decision. Whether the decision was also an illegal one, however, is a closer call. Having considered the case, we think it should be re solved at a trial, rather thanat the summary judgment stage where Olson’s age discrimination 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 Keel en, 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 business 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 pr oblems, 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 violation 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 dis criminated against him, Olson filed suit. But the district court granted Northern FS’s motion for summary judgment, finding that Olson failed to provide sufficient evidence th at 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 inferences 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 genuineissue as to any material fact and the moving party is entitled to judgment as a matter of law. F ED

. R. C IV

. 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 cons tructing a ‘convincing mosaic’of circumstantial evidence that ‘allows a jury to infer intentional 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 discriminatory 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 made4 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, ho wever, 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 employ er’s legitimate job expectations; (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 sk irts 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 i nquiry’ in a Title VII case is ‘[whether] the defendant intentionally discriminated against the plaintiff.’ . . . The prima facie case method established in McDonnell Douglaswas ‘never intended to be rigid, mechanized, or ritualistic.’ ”) (citations omitted). In an attempt tobetter reach the ultimate question of when, as here, an employee within the protected class has been discharged andNos. 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 issubstantially younger than the plaintiff is a far more reliable 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 performance 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 withKeelen’s remark, stray or otherwise, that Olson was undesirable 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 NorthernFS’s explanation—that Keelen did not know Olson was interested 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 nosales experience to replace an experienced, highly successful 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 the6 Nos. 04-1102 & 04-1464

plaintiff’s prima facie case ‘and inferences properly drawntherefrom . . . on the issue of whether the defendant’s explanation 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 R EVERSE the district court’s judgment and R EMAND 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