Mullin v. Temco Mach., Inc.

• Decision Date: 10 October 2013
• Docket Number: No. 13–1338.,13–1338.
• Citation: 732 F.3d 772
• Parties: John W. MULLIN, II, Plaintiff–Appellant, v. TEMCO MACHINERY, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

732 F.3d 772

John W. MULLIN, II, Plaintiff–Appellant,

v.TEMCO MACHINERY, INC., Defendant–Appellee.

No. 13–1338.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 2013.

Decided Oct. 10, 2013.

Quincy E. Sauer, Macey Swanson & Allman, Indianapolis, IN, for Plaintiff–Appellant.

Daniel J. Layden, Williams, Barrett & Wilkowski, Greenwood, IN, for Defendant–Appellee.

Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

John Mullin, II, brought suit alleging that he was fired because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. He was an employee with an allegedlyless than sterling performance as a follower of corporate policy. He was also the oldest—and most profitable—salesman for a company that sells fire trucks and other rescue equipment, Temco Machinery, Inc. After Temco fired the fifty-six year old Mullin, it quickly hired two inexperienced salesmen in their twenties. Mullin brought suit, and the district court granted summary judgment to Temco. For the following reasons, we reverse and remand.

I. Background

In 1990, Mullin, then age thirty-six, began working for Midwest Fire & Safety as a salesman. Midwest Fire & Safety was the authorized dealer in Indiana for Pierce Manufacturing, which makes custom fire trucks and other rescue equipment. In 2006, Temco purchased Midwest Fire & Safety and retained its sales staff, including Mullin, then age fifty-two. As a sales associate, Mullin's responsibilities included selling fire trucks, traveling throughout his assigned territory (portions of central and southern Indiana), building client relationships, and participating at conventions and fire department activities. Most of Temco's salesmen are over the age of forty because the job requires in-depth knowledge of the industry and its products. During Mullin's tenure at the company, Temco typically employed between four and six sales associates in Indiana.

Mullin handled approximately 250 client accounts for Temco. In 2006 or 2007, the CEO of Temco, Michael Mikoola, took one account away from Mullin in response to criticism by a fire chief. In both 2008 and 2009, Mullin won Temco's Salesman of the Year Award. Temco presents this annual award to the sales associate who sold the most fire trucks during the company's preceding fiscal year. In 2008, Mullin sold six fire trucks, and the other three Indiana salesmen sold four, two, and two fire trucks, respectively. Mullin's 2008 sales represented 42% of the total number of fire trucks sold in Indiana and generated 56% of the total profit. In 2009, Mullin sold eight fire trucks, and his three colleagues sold seven, four, and one fire truck, respectively. Mullin's 2009 sales represented 40% of the total number of fire trucks sold in Indiana and generated 52% of the total profit.

In November 2009, Temco hired an experienced manager, Ronald Baylog, as Vice President and General Manager of the Indiana sales division. The Indiana sales force was not meeting Temco's and Pierce's expectations, a fact that was relayed to the salesmen. Temco's executives directed Baylog to evaluate and manage the Indiana sales division. They hoped Baylog would improve performance, and they sought his assessments and recommendations. Baylog became Mullin's immediate supervisor, a role he occupied through the date of Mullin's firing.¹

Baylog implemented three new policies for the Indiana sales division. He required the sales staff, including Mullin, to (1) complete and submit weekly contact/call reports in order to track potential customers; (2) attend and participate in weekly Monday morning sales meetings; and (3) help classify customers into higher- and lower-value targets, and call on them afterward. As detailed below, the parties have quite different accounts of Mullin's compliance with these new policies.

The month of May 2010 is important to this case. 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.”

On May 14, the next day, Andrew Wolka and Matthew Timmer attended the Pierce Sales Meeting in Appleton, Wisconsin on Temco's behalf. Mullin had been scheduled to attend this annual meeting. Wolka and Timmer both officially started working for Temco on May 24, 2010; Wolka began as a full-time sales associate in Indiana, and Timmer as a part-time sales associate in Indiana because he was also a fireman. Wolka's and Timmer's contractual responsibilities were the same as Mullin's had been. Neither Wolka nor Timmer had any experience selling fire trucks, as Mikoola and Baylog both acknowledged in depositions.²

On November 8, 2010, Mullin filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that he was terminated because of his age. On November 30, 2010, Temco submitted a position paper to the EEOC, stating that Mullin was fired for lack of performance. Temco alleged that Mullin's sales performance had declined; that Mullin refused to make sales calls or call on accounts, despite instructions by his superiors to do so; and that Mullin used his Temco email account “to communicate with a representative of a competing company concerning matters that were inappropriate” for someone in his position. After the EEOC issued Mullin a right to sue letter, he filed suit in the U.S. District Court for the Southern District of Indiana.

In several depositions, Temco executives offered the following characterizations of the events at issue in this case. Baylog asserted that he was “absolutely” “disappointed” when Mullin allegedly failed to attend two events that he was supposed to. These events were hosted by “good customers” (specifically, Wayne Township Fire Department and Speedway Fire Department). Mullin contests these allegations, stating that he never received an invitation to one event and that he in fact attended the other, which multiple other individuals confirmed. Baylog also alleged that Mullin failed to complete his contact/call reports in a timely fashion, did not consistently attend Monday morning meetings, and more generally underperformed and lacked organizational skills.

Temco CEO Mikoola also expressed dissatisfaction with Mullin's performance, including certain sales that Mikoola felt Mullin had lost. When Mikoola was asked when he decided to fire Mullin, he explained that a particular incident was “the straw that broke the camel's back.” A client, the Westfield Fire Department, had sent representatives to visit a factory, and Mullin was responsible for leading the factory visit. According to Mikoola, Mullin simply “didn't show up” to work, which left the client “looking for him” at the factory. “I heard later John [Mullin] got sick or something, but didn't call anybody or tell anybody. It was rather a pretty substantial embarrassment for us,” Mikoola said. According to Mullin, though, this serious allegation is entirely inaccurate. Three Westfield Fire Department employees all testified that Mullin was with them the entire time and did a good job of showing them around the factory.

Finally, when asked about the twenty-four year old Wolka, Mikoola testified as follows.

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.

Ultimately, Temco moved for summary judgment, which the district court granted. The district court rejected Mullin's allegation that Temco had provided shifting and inconsistent explanations for his firing—explanations that Mullin claimed were pretextual. The court concluded that Temco had legitimate reasons to be unsatisfied with Mullin's performance and allegedly uncooperative nature. Mullin timely appealed.

II. Discussion

Mullin challenges the district court's entry of summary judgment. We review the district court's decision de novo, construing all facts and drawing reasonable inferences in the light most favorable to Mullin, the non-moving party. Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 673 (7th Cir.2012). 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; Fleishman v. Continental Cas. Co., 698 F.3d 598, 603 (7th Cir.2012).

Mullin contends that Temco fired him because of his age, in violation of the ADEA. The ADEA prohibits an employer from “discharg[ing] any individual ... because of such individual's age.” 29 U.S.C. § 623(a)(1); see also29 U.S.C. § 631(a) (limiting protections to those over forty years old). To establish an ADEA violation, “an employee must show that age actually motivated the adverse employment action. Put differently, age must have played a role in the employer's decision-making process and had a determinative influence on the outcome.” Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir.2010) (citations omitted).

We have previously explained that an employee may prove discrimination through the direct or...