Henry WOLF, Plaintiff-Appellant, v. BUSS (AMERICA) INC., Defendant-Appellee

ILANA DIAMOND ROVNER, Circuit Judge,

dissenting.

In Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir.1995), this court considered a discrimination claim to which the employer had offered a number of seemingly independent, non-discriminatory explanations. Despite the plaintiffs success in rebutting some of the company’s reasons, we upheld summary judgment because the surviving reason — that the employer was generally dissatisfied with the plaintiffs job performance — had not been rebutted. Id. at 69. I joined Chief Judge Posner’s opinion in that case because it was clear to me that the employer’s general dissatisfaction with Russell’s job performance had motivated its actions, and because the opinion recognized that future plaintiffs may survive summary judgment by rebutting some but not all of the proffered reasons for an adverse employment action. As Russell explained, “[t]here may be cases in which the multiple grounds offered by the defendant for the adverse action ... are so intertwined, or the pretextual character of one of them so fishy and suspicious, that the plaintiff could withstand summary judgment.” Id. at 70. The majority today purports to apply Russell in affirming a summary judgment in spite of its finding that the plaintiff rebutted four of the six proffered reasons for his termination. The majority finds Russell’s caveat inapplicable here because it views the four rebutted reasons as “neither ‘so intertwined,’ nor ‘so fishy’ as to call the remaining two reasons into doubt.” (Ante at 923.) I disagree and therefore dissent.

Assuming for the moment that the majority is correct, and that only four of the six proffered reasons have been successfully rebutted, I cannot agree that no one of the four is “so fishy and suspicious” as to call the remaining two reasons into doubt. Consider, for example, Buss America’s contention that Wolf had been dilatory in obtaining a home telephone. According to its summary judgment motion, Buss America was troubled by the fact that Wolf had no home telephone during his first six months on the job because this made it difficult for the company to contact him. The motion and accompanying factual statement, however, did not advert to a single instance in which Buss America actually needed or attempted to reach Wolf at home during this period. See Collier v. Budd Co., 66 F.3d 886, 893 (7th Cir.1995) (reversing summary judgment where company offered little or no evidence to support its proffered reasons). Wolf explained in response that he had purchased a home in Elk Grove Village, Illinois, in September 1989, upon becoming a Buss America employee, but that he had continued to travel on business approximately ninety percent of the time. Thus, he generally communicated with company officials from either his hotel or his job site. Wolf also indicated that he ordered telephone service for his Elk Grove Village home in February or March of the following year. In the ensuing months and through the date of his termination almost two years *925later, Wolf never once received a telephone call from his employer at his home. Nor did he receive such a call at a hotel in the course of his travels. Thus, construing the record in the light most favorable to Wolf, as we must on summary judgment, the following picture emerges: Buss America terminated perhaps its best engineer in December 1991, in part because he had not had a home telephone almost two years earlier, upon first moving to this country, although he traveled approximately ninety percent of that time and the company never once called him at home or on the road in the ensuing months. In my view, Wolf not only discredited this reason, he exposed it as preposterous. A reasonable jury certainly could infer from the flimsiness of this reason that the company’s two remaining reasons also lack credibility. See Russell, 51 F.3d at 70.

But the preposterousness of the telephone reason is not even the most persuasive factor favoring Wolf at this stage. Russell emphasized that summary judgment may also be improper where the rebutted and unrebutted reasons are “intertwined” — that is, where the reasons themselves are factually related or are considered by the employer only as component parts of its overall decision. 51 F.3d at 70. Here, Buss America concedes that it was the cumulative force of the reasons offered, and not any one standing alone, that caused it to dismiss Wolf and to retain a younger, less experienced engineer. (See Buss America Br. at 5-6 (describing the weighing process engaged in by Rauch).) In that sense, this case bears little resemblance to Russell, where the employer expressed a general dissatisfaction with the plaintiffs job performance (evidenced by numerous disciplinary warnings) and then offered more specific concerns as further support for its decision. See 51 F.3d at 68-69. The fact that Russell succeeded in rebutting one of the specific concerns did not in that case affect the defendant’s overall assessment of the adequacy of his performance. Id. Here, however, Buss America was not generally dissatisfied with Wolfs performance. As the majority points out, the company only decided to dismiss one of its three service engineers because of an economic slowdown. In determining which of the three to dismiss, Buss America weighed the relative strengths and weaknesses of each and concluded that the six “negatives” it attributed to Wolf outweighed both his positive qualities and the deficiencies of his younger counterpart. If Wolf had had only two “negatives,” however, the company’s weighing process may well have produced a different result (assuming, that is, that the age of the candidates was never placed on the scale). Thus, because of the way Buss America characterized its own decision-making process, none of the six reasons can stand alone or even in pairs; those reasons are “intertwined” in any sense of the word.1

Whether or not the proffered reasons are “intertwined,” however, is simply a convenient means of approaching the ultimate question in cases such as this one — whether it would be permissible for the finder of fact to infer from the falsity of the rebutted reasons that the remaining reasons also are pretextual. Because we will not affirm summary judgment in an employment discrimination case unless the employer would be entitled to a directed verdict if the record at trial were identical to that compiled on summary judgment (Russell, 51 F.3d at 70; Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir.1994)), the majority necessarily holds that a jury, upon finding four of Buss America’s proffered reasons to be factually baseless, could not rationally infer that the *926remaining reasons also are not credible. It is clear, however, that such an inference can be drawn, and has been drawn in other eases. See, e.g., Fuentes v. Perskie, 32 F.3d 759, 764 n. 7 (3d Cir.1994) (inference is permissible); Roebuck v. Drexel Univ., 852 F.2d 715, 734 n. 32 (3d Cir.1988) (same); Logue v. International Rehabilitation Assoc., Inc., 683 F.Supp. 518, 518 (W.D.Pa.1988) (in considering multiple reasons for a single employment action that are offered through the same witnesses, court may “follow the ancient legal maxim falsus in uno, falsus in omnibus ”), aff'd mem., 866 F.2d 1410 (3d Cir.1988); see also Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 602-03 (9th Cir.1993) (Fernandez, J., concurring) (“As I see it, we do not mean to say that the falsity of one reason cannot affect the court’s perception of the truth of another one.... If based on the evidence, including the comparison of qualifications, the falsity of one reason, and the weakness of the other, the district court is led to a determination that the other reason is also false, the district court need only say so.”); Sims v. Cleland, 813 F.2d 790, 793 (6th Cir.1987) (rejecting argument that inference is mandated but suggesting, sub silentio, that inference is permissible). As Judge Becker explained for the Third Circuit in Fuentes:

If the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit the remainder. That is because the factfinder’s rejection of some of the proffered reasons may impede the employer’s credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons, even if no evidence undermining those remaining rationales in particular is available.

32 F.3d at 764 n. 7. That, moreover, is the clear implication of Russell’s caveat. See 51 F.3d at 70.

The majority fails to explain why such an inference would be irrational here. Because all six reasons for Wolfs discharge were offered through the same witness, a jury could rationally reject his testimony in toto upon finding that more than half of it was fabricated. See Fuentes, 32 F.3d at 764 n. 7; Roebuck, 852 F.2d at 734 n. 32; Logue, 683 F.Supp. at 518. The majority’s contrary conclusion suggests to me that the two remaining reasons must be rock solid — like the employer’s well-documented dissatisfaction with the plaintiffs performance in Russell, for example. Let me consider in more detail, then, the nature of those two allegedly unre-butted reasons.

First is the fact that Wolf had on two occasions suggested to officials at the Swiss parent company that Buss America adopt certain methods successfully employed by the parent. Wolf indicates that he turned out to be right both times and that no one at Buss America exhibited any resentment. Indeed, he produced evidence that Buss America’s concerns had been resolved to everyone’s satisfaction almost eighteen months before his termination. (See R. 30, Ex. 5.) The majority emphasizes, however, that it was the occurrence of these communications, and not their content, that was most troubling to Buss America, and that the company had a right to terminate Wolf for this reason. (Ante at 920-21.) I have no objection to the majority’s analysis of this point, for even a seemingly inane view could be honestly held by an employer, and I agree that it is not our province in an age discrimination case to review the wisdom of a company’s actions. (See ante at 920.) Indeed, if this had been the only reason Buss America had offered, it is unlikely that I would be dissenting today. But it was not the only reason, and it certainly does not strike me as so compelling that a jury could not reject it as incredible after finding that the company also proffered at least four fraudulent reasons. See Odima, 991 F.2d at 603 (Fernandez, J., concurring).

Which brings me to the final unrebutted reason, a reason that I do not find unrebut-ted at all. The majority concludes that Wolf failed to adequately dispute Buss America’s contention that he did not complete service reports in a timely fashion. (Ante at 921.)2 Yet Wolf indicated in his response that he *927completed his reports on a daily basis and that no one ever complained about their timeliness. The majority emphasizes, however, that Wolf sometimes completed his reports in German and that Buss America apparently wanted the reports in English. My colleagues infer from this that the reports in fact were untimely, despite Wolfs insistence that they were not. (See ante at 921 & 922 n. 4.)

I have several concerns about the majority’s analysis of this point. First, Buss America itself, in moving for summary judgment, never linked the timeliness of Wolfs reports to the fact that they were sometimes completed in German. The company admits as much in its brief, conceding that this fact was never asserted in its motion as a basis for the termination decision. (See Buss America Br. at 11 & n. 1.) That motion and accompanying factual statement addressed only the timeliness of Wolfs reports (see supra, at n. 2), a question on which there undoubtedly is a disputed issue of material fact. It is not our business on summary judgment to search the record for other non-discriminatory reasons that potentially could support a challenged employment decision when those reasons were not actually articulated by the employer itself. See Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.1989) (“When a party moves for summary judgment on ground A, his opponent is not required to respond to ground B — a ground the movant might have presented but did not.”); see also Hartman v. Board of Trustees of Community College Dist. No. 508, 4 F.3d 465, 469 (7th Cir.1993). That strikes me as something entirely different from granting summary judgment on some legal ground supported by the record but not raised in the motion. (See ante at 921.)

I also think it improper on summary judgment to infer that Wolfs reports were consistently late simply because they sometimes were completed in German. (Cf. ante at 921.) As I mentioned, Buss America in its motion never linked the timeliness of the service reports to the language in which they were written. (See R. 22, at 5.) More importantly, Rauch also never made such an assertion in his deposition. He merely indicated that the company had asked Wolf to write his reports in English and never suggested that it considered a report untimely when completed in some other language. (R. 22, Ex. F, at 126.) Construing the record in Wolfs favor, then, we must conclude that the two were not linked. On the question of timeliness, the sole reason advanced by the company in its motion, Rauch maintained that it sometimes took Wolf a full year to complete his service reports. (Id.) The summary judgment motion insisted, moreover, that Wolfs reports remained unacceptably late even after Buss America provided him with a dictaphone, which allowed him to dictate the reports in English. (R. 22, at 5.) Those assertions are contradicted in Wolfs response. Whether Wolf in fact completed his reports on a daily or a yearly basis can only be resolved after a trial. My colleagues, however, have short-circuited that process by relying on a reason never asserted in Buss America’s motion, and by drawing an inference from that reason which is adverse to the nonmovant. Only in this way can the majority conclude that four, rather than five, of the “intertwined” reasons were successfully rebutted.

The majority also fails to consider that Wolf was by far the company’s most highly skilled engineer. Whereas Wolf had worked with the relevant equipment for approximately thirty years, the younger engineer retained by the company had been hired only one year earlier. The retained engineer also learned most of what he knew about Buss America’s equipment from Wolf, who had trained him. Buss America itself apparently considered Wolf to be an exceptional engineer, as the company had attempted to lure him away from its Swiss parent for almost a decade. That a company chooses to terminate an engineer with superior skills while retaining a younger, less experienced engineer certainly is relevant to any eonsider-*928ation of whether the employer’s proffered reasons are credible and whether they in fact prompted the adverse employment action. See, e.g., Collier, 66 F.3d at 893; Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir.1990) (reversing summary judgment where age discrimination plaintiff showed his alleged deficiencies to be exaggerated and offset by his overall performance).

The majority acknowledges early on that summary judgment motions must be considered with “added rigor” in employment discrimination cases such as this one. Ante at 918; see also Collier, 66 F.3d at 892; Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994). Despite that, it is content to affirm summary judgment here on the slimmest of records. That record reveals that Buss America purports to have terminated perhaps its best service engineer for six reasons, four of which Wolf rebutted and two that he allegedly did not. One of the surviving reasons, however, was never actually advanced by the employer, and the other is less than compelling. Such a case, in my view, is simply- not summary judgment material. In that regard, I think it important to note that this is not a case about whether the federal age discrimination law provides a form of tenure or job insurance for competent older workers in an increasingly “pitiless” market. (See ante at 924.) No one disputes that it does not. This is instead a case about the standard of proof to which we will hold discrimination plaintiffs like Henry Wolf when their employers, on summary judgment, assert that a myriad of non-discriminatory reasons contributed to a single adverse employment action. That strikes me as a very important question in the development of this circuit’s discrimination law. Because today’s decision provides a less than satisfactory answer, I most respectfully but vigorously dissent.

. The majority offers the following response:

We recognize that Buss America has not contended that the two remaining reasons would be sufficient, standing alone, to justify Wolf’s dismissal.... These two reasons only became sufficient after Buss America was hit by an economic slowdown that necessitated the firing of one of its service engineers. Thus, the "intertwining” at work here takes place not among the six reasons per se, but rather among these reasons and the economic slowdown.

(Ante at 923.) The point the majority misses is that Buss America never in fact considered any two reasons sufficient, not even in connection with the downsizing required by the economic slowdown. In weighing the positives and negatives of each service engineer, the company purports to have chosen Wolf based on its assessment of six negative characteristics. Clearly, those six negatives arc but component parts of Buss America's overall employment decision. They arc thus "intertwined” under Russell.

. The precise reason was articulated in Buss America’s Local Rule 12(m) statement:

Rauch wanted [s]ervice engineers to make reports after each service call. Rauch had trou-*927blc getting Wolf to submit these reports on a timely basis. In an effort to improve the timeliness of the reports, [Buss America] got each of the service engineers dictaphones so that they could dictate the reports. Even after doing this, Rauch found that Wolfs service re- ¡ ports were unacceptably late.

(R. 22, at 5 (citations omitted).)