NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 15, 2016
Decided January 12, 2016
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16-1707
JAY R. SCHMITT,
Plaintiff-Appellant,
Appeal from the United States District
v. Court for the Southern District of Illinois.
CENTRAL PROCESSING No. 14-cv-01341-JPG-DGW
CORPORATION and COUNTY
MATERIALS CORPORATION, J. Phil Gilbert,
Defendants-Appellees. Judge.
ORDER
Jay Schmitt contends that his employer fired him while retaining younger, less
qualified employees, but his claim of age discrimination foundered because a
questionable litigation strategy obscured the salient issue. Schmitt focused heavily on
comparing himself to a newly hired, entry-level employee whom, he argued, assumed
many of his previous responsibilities. The district court rejected this comparison
between Schmitt and the new hire and granted summary judgment for the employer,
concluding that Schmitt had failed to identify a similarly situated, younger employee
who was treated more favorably. But the court ignored another comparator who did
perform the same role as Schmitt and, despite having been on the job for only a year,
No. 16-1707 Page 2
kept his position while Schmitt’s was “eliminated.” In our view Schmitt established a
prima facie case of discrimination, and thus the real question is whether his employer’s
proffered reason for firing him—that the relevant comparator had a “deeper skill set”
and another new hire had better industry contacts—was pretextual. Reviewing the
evidence in the light most favorable to Schmitt, we conclude that he failed to introduce
evidence from which a reasonable fact finder could conclude that his employer lied
about its reasons for letting him go. We affirm the judgment.
I. Background
In his brief Schmitt describes the underlying facts as “blurry.” We’ve distilled the
following narrative as the factual background necessary to resolve this case. Schmitt
worked for more than 30 years at a plant in Salem, Illinois, that manufactures concrete
products used to erect bridges, overpasses, and other large structures. He was the plant
manager when the facility was purchased out of a receivership in late 2009 by the
defendant County Materials Corporation. (Central Processing Corporation, the other
defendant, provides labor to County Materials and became Schmitt’s employer after the
acquisition. We will refer to the defendants collectively as “County Materials.”) Scott
Boma, regional manager for County Materials, hired Schmitt and other “key personnel”
to continue running the plant, but Boma soon decided that Schmitt’s management style
did not include the “strong sense of urgency” he desired.
Boma did not fire Schmitt but instead gave him a job in commercial sales.
Employees in commercial sales were primarily responsible for bidding on contracts to
supply concrete products needed by construction companies or governmental agencies.
Rich Cooper and Preston Moore, two other employees at the Salem plant, worked
alongside Schmitt in commercial sales, and a third man, Pete Tomaras, performed that
job out of a plant in Champaign, Illinois. According to Boma, though, the four worked
on “very different” projects. Schmitt was responsible for bidding on jobs in southern
Illinois and Missouri requiring only simple “I-beams” and “box beams,” jobs that Boma
derides as “cookie-cutter.” In contrast, Cooper focused on “special or unique projects”
like railroad bridges; Moore primarily bid on “complex bridge projects, such as arched
bridges and design-builds”; and Tomaras sold “some other products in addition to”
those manufactured in Salem. Schmitt disagrees with characterizing his projects as
“cookie-cutter” and avers that he is fully competent to estimate all types of projects
using materials made by the Salem plant, yet he admits that, in fact, all of the projects he
bid on were bridges using only I-beams and box beams.
No. 16-1707 Page 3
Meanwhile, shortly after the Salem plant was acquired, Boma also hired Lyndell
Borcherding, another former employee, to serve as “project coordinator.” Employees
holding this hourly position (salespeople are salaried) support the commercial sales staff
by “perform[ing] the administrative tasks necessary to take the projects successfully bid
on … and get them ready for production.” Schmitt had performed these tasks for three
or four months after Boma hired (and demoted) him, but his “responsibilities shifted to
an emphasis on sales and estimating” once Borcherding took over as project coordinator.
Commercial salespeople do occasionally perform some of the post-sales supporting
tasks typically handled by the project coordinator, but the project coordinator does not
bid or estimate projects.
Schmitt did not always have enough work to stay busy on a full-time basis, and
he does not dispute that Boma spoke with him several times about ways he might stay
busier. Then in the summer of 2011, according to Schmitt, Boma asked him when he
planned to retire, which surprised him because he was not then contemplating
retirement. That same fall, Boma placed Schmitt on furlough for the winter (a slow
period for the industry) to reduce operating costs. Schmitt was surprised by this too
because no one else in the plant was placed on furlough, but he did not question Boma’s
choice or complain. He returned in the spring, but Boma again furloughed him during
the winter of 2012–2013 while business was slow. Again, Schmitt did not complain,
although he was the only salaried employee who was furloughed.
Moore, one of the other three project managers, resigned at roughly the same time
that Schmitt returned from furlough in the spring of 2013. Boma promoted Borcherding
from project coordinator to fill Moore’s position in commercial sales. There is no dispute
that Borcherding had little to no experience either in sales or in bidding on materials
contracts. Neither is there any dispute that Schmitt, having far more experience, could
have handled the work Moore was performing. At 37 years old, the newly promoted
Borcherding was substantially younger than his colleagues—Schmitt was then 58, and
both Cooper and Tomaras were 52 years old.
Schmitt and Borcherding split between themselves the duties of the project
coordinator while that position was vacant, but at the same time, both men also
performed their jobs in commercial sales by bidding on projects. Then in July 2013 Boma
hired Christopher Everette, who was then 33 years old (and had no experience in the
industry), to fill Borcherding’s old job of project coordinator. Once Everette was trained
(the parties dispute who trained him, but the answer is irrelevant), Everette performed
all of the supporting administrative duties that had been Borcherding’s responsibility,
No. 16-1707 Page 4
some of which Schmitt had performed for several months after Borcherding’s
promotion. At this time Schmitt was being paid $72,000 annually; Borcherding earned
$51,000 per year; and Everette was paid $17 per hour.
Boma furloughed Schmitt again in October 2013. That same month, however,
Boma hired 57-year-old Andy Keenan as a fifth commercial salesperson after the
acquisition of a northern Illinois plant that manufactures products similar to those made
in Salem. Keenan, who had been working for a number of years at the newly acquired
plant, sold the same bridge beams as Schmitt, but in Boma’s estimation had greater
customer contacts in northern Illinois, “an important area of potential growth.” Schmitt
conceded, consistently with Boma’s assertion, that he did not estimate bridges in the
Chicagoland area. During the winter of 2013, Borcherding and Keenan handled
Schmitt’s estimates, all of which were located in southern Illinois and Missouri.
Boma decided in the spring of 2014 that there wasn’t sufficient work to justify five
commercial salespeople and that since Keenan and Schmitt sold the same types of
products, he would “consolidate their responsibilities into a single position and
eliminate the other position in order to save costs.” Boma considered Keenan to be more
valuable because he had more contacts in northern Illinois. Boma says he also considered
whether Cooper or Borcherding (the other Salem salespeople) should be let go, but
decided not to because they “had a deeper skill set than Schmitt, exhibited a greater
attention to detail than Schmitt, and had experience handling special and complex
projects whereas Schmitt’s experience was limited to the more basic bridge beam jobs.”
Rather than bring Schmitt back from furlough in the spring, Boma fired him
effective April 1, 2014, when he was 59 years old. At the time Keenan was 57, Cooper
and Tomaras both were 53, and Borcherding was 38. Schmitt responded by asking Boma
not why Borcherding was being retained but instead why he was being fired instead of
33-year-old Everette, the new project coordinator. Boma answered that Schmitt and
Everette held different jobs and asked whether Schmitt wanted Everette’s position.
Schmitt replied that he did not (he later testified that he did not view this as a serious
offer considering that Everette earned roughly half of his salary). Boma testified that
after Schmitt was last placed on furlough in the fall of 2013, never to return, Keenan bid
83% of the jobs that would have gone to Schmitt while Borcherding handled the
remaining 17%.
Schmitt filed this suit alleging that he was fired on the basis of age in violation of
the Age Discrimination in Employment Act. See 29 U.S.C. § 623(a)(1). Schmitt contended
No. 16-1707 Page 5
that he had been terminated from the job of project coordinator—not commercial
sales—and identified Everette as the substantially younger employee who had replaced
him.
But this theory changed during litigation. At summary judgment the defendants
contended that Schmitt had been a salaried member of the commercial sales staff, that he
had performed the entry-level duties of project coordinator only temporarily while that
job was vacant, and that it was the 57-year-old Keenan, not Everette, who had replaced
him in sales. In response Schmitt modified his theory and argued that both Borcherding
and Everette had absorbed his duties. He pointed to an e-mail that Boma had sent
shortly after he was fired directing that another employee take some of Everette’s
administrative tasks so that Everette, not Keenan, could assume Borcherding’s “more
basic … duties.” And, Schmitt contended, it was not until 10 weeks after he was fired
(and 2 weeks after he requested his personnel file) that any of his work was given to
Keenan. This “suspicious timing,” he insisted, could reasonably be inferred as “track
covering … to obfuscate the discrimination.”
The defendants in reply pointed out that Boma’s e-mail concerned only staffing at
the Salem plant, meaning that since Keenan worked out of a different plant, his
assumption of Schmitt’s work wasn’t relevant. They also responded to Schmitt’s
“conspiracy theory” about the timing of Keenan’s work assignments, labeling as
“absurd” the suggestion that “Boma’s decision to assign more work to a 57-year old
employee proves a bias against older workers.”
In granting summary judgment for the defendants, the district court briefly
discussed Schmitt’s comparison of his own situation to Borcherding’s, but discounted
the latter’s promotion as irrelevant because it had occurred more than a year before
Schmitt was fired. The court focused on whether under the burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Everette qualifies as a substantially
younger employee who was treated more favorably. Everette is not a proper
comparator, the court concluded, because his entry-level role as project coordinator is
not sufficiently similar to Schmitt’s job in commercial sales. For that reason, the court
opined, Schmitt’s evidence does not establish a prima facie case of age discrimination.
And even if it did, the court added, Schmitt’s claim would fail because when deposed he
had conceded that he lacked specific evidence that Boma lied. The court did not go on to
consider whether Schmitt had produced enough evidence for a jury to infer that Boma’s
explanation for firing him was pretextual.
No. 16-1707 Page 6
II. Discussion
We recently jettisoned the long-standing practice of distinguishing between
“direct” and “indirect” evidence in analyzing discrimination claims and instructed
instead that courts simply ask if a reasonable jury could find from all available evidence
that discrimination was the but-for cause of the challenged employment action. See Ortiz
v. Werner Enters., Inc., 834 F.3d 760, 763–66 (7th Cir. 2016); see also Williams v. Office of the
Chief Judge of Cook Cnty., 839 F.3d 617, 626 (7th Cir. 2016) (explaining that plaintiff defeats
summary judgment if reasonable fact finder could determine that discriminatory motive
caused termination). Schmitt filed his appellate brief a month before Ortiz was decided,
and his analysis tracks the discarded framework. The essence of his argument, however,
is that the district court failed to construe the evidence in the light most favorable to him
and overlooked disputed material facts about the duties he was performing shortly
before the final furlough. In other words, Schmitt continues to anchor his argument on
the fact that for several months prior to being furloughed in late 2013, he was performing
some duties of the project coordinator in addition to his sales work, and thus, he asserts,
a material question of fact exists about his actual job duties. Schmitt continues to insist
that Boma intended 38-year-old Borcherding and 33-year-old Everette to absorb his
duties, and he claims (without identifying any proof in the record) that the assignment of
his bidding work to Keenan only after he requested his personnel file was a ruse to
conceal discrimination “by using Keenan’s age as a shield.”
Schmitt misses the mark by insisting on comparing himself to Everette. The
parties agree that Schmitt was within the protected class for age discrimination, was
performing his sales job satisfactorily, and suffered an adverse action, so to establish a
prima facie case, he was required only to identify a similarly situated, younger employee
who was treated more favorably. See Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2016);
see also Ortiz, 834 F.3d at 766 (explaining that rejection of direct and indirect methods of
proof does not affect the burden-shifting framework of McDonnell Douglas). A similarly
situated employee “is one whose performance, qualifications, and conduct are
comparable in all material respects,” Boss, 816 F.3d at 917, and Everette simply does not
fit this definition. The defendants acknowledge that Schmitt temporarily performed
some duties of the project coordinator while that position was vacant and Everette was
in training to fill the role. But that didn’t change the essential nature of Schmitt’s duties
from that of commercial salesperson. At his deposition Schmitt acknowledged that he
primarily estimated and bid on bridge projects, and it is undisputed that Everette, the
new project coordinator, did not bid projects. And Everette was hired at $17 per hour for
a job that requires no prior experience in the industry while Schmitt was paid $72,000
No. 16-1707 Page 7
annually and had extensive experience. See Balderston v. Fairbanks Morse Engine Div. of
Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003) (rejecting as a comparator a younger
employee with a substantially lower salary and less experience).
On the other hand, though Everette is not a proper comparator, Borcherding is.
Thus, the district court was mistaken in saying that Schmitt had not established a prima
facie case. Boma fired Schmitt while retaining Borcherding—citing the younger man’s
“deeper skill set” and Schmitt’s exclusive focus on bidding “cookie-cutter” jobs. Yet
Borcherding’s promotion to commercial sales had occurred only a year earlier, and
Boma has never explained how in that short time someone with no prior experience
bidding projects could have developed a deeper skill set than Schmitt. Schmitt, after all,
had more than 30 years’ experience in the industry, and as plant manager before the
change in ownership had supervised all of the commercial salespeople at the Salem
facility. He has met his burden to establish a prima facie claim of discrimination.
So the outcome here turns on whether Schmitt produced sufficient evidence to
show that Boma’s explanation for firing him was pretextual, meaning dishonest rather
than simply foolish or unreasonable. See Lord v. High Voltage Software, Inc., 839 F.3d 556,
564 (7th Cir. 2016); Hatcher v. Bd. of Trs. of S. Ill. Univ., 829 F.3d 531, 541 (7th Cir. 2016). Yet
Schmitt does not even recognize the significance of this question; his lawyer continues to
focus so heavily on disputing Schmitt’s job duties that he barely addresses pretext. In the
two pages of his appellate brief devoted to that issue, Schmitt characterizes as
“evidence” of pretext (1) the timing of Boma’s personnel changes during the three years
before he was fired and (2) the fact that there were four salespeople in early 2013 and still
four in April 2014 after he was fired. Schmitt reasons that a jury could infer from the
personnel changes that Boma “had been plotting” to fire him since he asked in 2011
about his retirement plans. That inference rests on rank speculation and is not
reasonable. And Schmitt’s math is wrong. He claims that Boma lied about needing to
reduce the sales staff because there were four salespeople both before and after he was
fired. But the addition of the 57-year-old Keenan in October 2014 brought the number to
five. At oral argument Schmitt could have tried to point us to actual evidence of pretext,
but his lawyer failed even to mention the subject, instead spending his time on the futile
assertion that Schmitt’s job duties were unclear.
At summary judgment Schmitt needed to produce evidence that challenged
Boma’s explanation that Borcherding, the only true comparator, had a deeper skill set
and bid more complicated projects than Schmitt could handle. Schmitt might have
attacked Boma’s reason for firing him by putting forth evidence that he could (or did)
No. 16-1707 Page 8
perform the “special projects” Borcherding handled, that he had greater skills than
Borcherding, or even by asserting that he had tried to take on these tasks when Moore
resigned. He could have subpoenaed records to support his assertion that Keenan, the
newly hired salesperson who is only two years his junior, did not begin to handle
Schmitt’s work until after he put Boma on notice of his intent to sue (demonstrating,
potentially, that the defendants were attempting to cover up their pretextual dismissal of
Schmitt). It’s unclear whether Schmitt tried to gather evidence along these lines and
failed because it doesn’t exist, or if his attorneys simply dropped the ball. But either way
his failure to do any of this means that he lacks any real evidence that would allow a
reasonable jury to conclude that Boma lied. The fact that Borcherding was
retained—despite having substantially less time on the job—while Schmitt was fired
might seem harsh, but ultimately Schmitt fell short of meeting his burden to prove that
discrimination motivated the decision.
The judgment of the district court is AFFIRMED.