Kragor v. Takeda Pharms. Am., Inc.

• Decision Date: 20 December 2012
• Docket Number: No. 11–16052.,11–16052.
• Citation: 702 F.3d 1304
• Parties: Barbara KRAGOR, Plaintiff–Appellant, v. TAKEDA PHARMACEUTICALS AMERICA, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

702 F.3d 1304

Barbara KRAGOR, Plaintiff–Appellant,

v.TAKEDA PHARMACEUTICALS AMERICA, INC., Defendant–Appellee.

No. 11–16052.

United States Court of Appeals, Eleventh Circuit.

Dec. 20, 2012.

Robert Marx, Marx & Marx, LLC, Atlanta, GA, for Plaintiff–Appellant.

Patrick Fred Clark, Natalie N. Turner, Ogletree, Deakins, Nash, Smoak & Stewart, PC, Atlanta, GA, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, CARNES and JORDAN, Circuit Judges.

JORDAN, Circuit Judge:

It may be that a “[c]ontradiction is not a sign of falsity, nor the lack of contradiction a sign of truth.” Blaise Pascal, Pascal's Pensées 104 (E.P. Dutton & Co., Inc. 1958) (1670). But under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., a contradiction of the employer's proffered reason for the termination of an employee is sometimes enough, when combined with other evidence, to allow a jury to find that the firing was the result of unlawful discrimination. See generally Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”). In this case, the corporate executive who terminated the plaintiff for alleged misconduct later said that the plaintiff was an exceptional employee who had done nothing wrong, had done everything right, and should not have been fired. We hold—not surprisingly we think—that such evidence, when combined with a prima facie case, lets the plaintiff get to a jury on her age discrimination claim, and accordingly reverse the district court's grant of summary judgment in favor of the employer.

I

Barbara Kragor began working for Takeda Pharmaceuticals in 1999. Because the pharmaceutical industry is heavily regulated by the federal government, Takeda adopted strict conduct policies for its employees, including prohibitions against providing any items of value to a healthcare provider (e.g., a doctor) to induce the provider to prescribe the company's products.

In 2008, Takeda began investigating whether Ms. Kragor had provided a doctor with improper gifts and benefits. A few months later, Dan Orlando, a Takeda vice-president, terminated Ms. Kragor because she had violated, or at a minimum had engaged in behavior that appeared to violate, the company's conduct policies. Ms. Kragor, who was 49 years old at the time of the termination, believed that she had been the victim of age discrimination, and sued Takeda under the ADEA, 29 U.S.C. § 623(a)(1).

The district court granted summary judgment in favor of Takeda because Ms. Kragor did not present sufficient evidence from which a jury could conclude that Takeda's proffered nondiscriminatory reason for the termination—that Ms. Kragor violated (or appeared to violate) the company's conduct policies—was pretextual. See generally Chapman v. AI Transport, 229 F.3d 1012, 1037 (11th Cir.2000) (en banc) (“In order to avoid summary judgment, a plaintiff must produce sufficient evidence for a reasonable factfinder to conclude that each of the employer's proffered nondiscriminatory reasons is pretextual.”). Ms. Kragor then appealed.

II

We exercise plenary review of the district court's grant of summary judgment, viewing all the evidence, and drawing all reasonable factual inferences, in favor of Ms. Kragor. See Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir.2008). Summary judgment is appropriate only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Dixon v. Hallmark Cos., Inc., 627 F.3d 849, 854 (11th Cir.2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

A

A claim of unlawful age discrimination under the ADEA may be established through direct or circumstantial evidence. See Van Voorhis v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 512 F.3d 1296, 1300 (11th Cir.2008). When such a claim is based on circumstantial evidence, we analyze the allocation of burdens and the presentation of proof under the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Chapman, 229 F.3d at 1024 (applying McDonnell Douglas to evaluate ADEA claims); Mauter v. Hardy Corp., 825 F.2d 1554, 1556 (11th Cir.1987) (same).

Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination, which “in effect creates a presumption that the employer unlawfully discriminated against the employee.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To make out a prima facie case of age discrimination, the plaintiff must show four things: “(1) that she was a member of the protected group of persons between the ages of forty and seventy; (2) that she was subject to adverse employment action; (3) that a substantially younger person filled the position that she sought or from which she was discharged; and (4) that she was qualified to do the job for which she was rejected.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir.1999).

Once the plaintiff establishes a prima facie case of age discrimination, the burden shifts to the employer to rebut the presumption of discrimination with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802–03, 93 S.Ct. 1817. “This burden is one of production, not persuasion ....” Reeves, 530 U.S. at 142, 120 S.Ct. 2097. Thus, “[t]o satisfy that burden of production, ‘[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’ ” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997) (quoting Burdine, 450 U.S. at 254–55, 101 S.Ct. 1089). If the employer produces evidence of a legitimate, nondiscriminatory reason for the adverse action, the plaintiff is afforded an opportunity to show that the employer's stated reason is a pretext for discrimination. See, e.g., Reeves, 530 U.S. at 143, 120 S.Ct. 2097;McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817.¹

The plaintiff can show pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. 1089. “In other words, the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishingthe prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.” Combs, 106 F.3d at 1528. If a plaintiff produces sufficient evidence that the employer's proffered reason is merely pretextual, that evidence may sometimes be enough to preclude summary judgment in favor of the employer. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097.See also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.”).

B

It is undisputed that Ms. Kragor established a prima facie case of age discrimination under the ADEA: she was a member of the protected age group because she was over the age of 40; she was discharged by Takeda; she was replaced by a younger person who was outside the protected age group; and she was qualified for the position from which she was terminated. It is also undisputed that Takeda presented evidence of a legitimate, nondiscriminatory reason for terminating Ms. Kragor—that Ms. Kragor violated (or appeared to violate) its policies governing employee interactions with healthcare providers. Thus, the narrow issue on appeal is whether Ms. Kragor presented sufficient evidence of pretext to create a genuine issue of material fact as to whether Takeda unlawfully discriminated against her because of her age.

We begin with Takeda's proffered reason for discharging Ms. Kragor. See Chapman, 229 F.3d at 1030 (“Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.”). In May of 2008, Takeda began looking into allegations that Ms. Kragor had violated the company's conduct policies by (1) providing Dr. Bruce Bode—a physician who frequently used Takeda's products and was one of the company's best clients—with discounted Delta Airlines tickets (referred to by the parties as “buddy passes”), and (2) approving reimbursements to Takeda sales representatives who had improperly expensed Dr. Bode's holiday parties. Takeda interviewed current and former employees (including Ms. Kragor) and reviewed emails and other documents as part of its investigation.

For her part, Ms. Kragor provided explanations for the things she was accused of doing. First, regarding the buddy passes, Ms. Kragor maintained that she did not personally provide Dr. Bode with discounted airline tickets. Ms. Kragor said that her husband Bud Kragor, a Delta Airlines pilot who received the discounted tickets as part of his employment, gave or sold the tickets to Dr. Bode directly and independently of her...