In the

United States Court of Appeals

For the Seventh Circuit

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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 illegal 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 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 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 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 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 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 discriminated 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 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 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 genuine

issue as to any material fact and the moving party is entitled 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 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 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 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 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, mechanized, or ritualistic.’ ”) (citations omitted). In an attempt to

better reach the ultimate question of when, as here, an employee 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 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 with

Keelen’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 Northern

FS’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 no

sales 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 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 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 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