Age Discrimination Claim Revived Following Summary Judgment Dismissal; Evidence Supported Inference That Alleged Deficient Performance Was Pretext For Discrimination

In Vichio v. US Foods, Inc., 88 F.4th 687 (7th Cir. 2023), the court reversed the lower court’s dismissal of plaintiff’s claim of age discrimination asserted under the Age Discrimination in Employment Act, finding that there was a genuine dispute of material fact as to whether the employer’s proffered reason for terminating him – deficient performance – was pretext for age discrimination.

From the decision:

There is significant evidence in the record to support a reasonable inference that US Foods used Vichio’s performance as pretext for discrimination. On summary judgment, we interpret this evidence in the light most favorable to Vichio.

To begin, Vichio’s record at US Foods was virtually pristine until Zadlo arrived. As the district court acknowledged, Mike Drayton, the vice president of operations before Zadlo, considered Vichio an “exemplary worker.” And Vichio’s managers similarly saw him as a top employee. US Foods argues that we should disregard any positive feedback Vichio received from Drayton because an employee’s ability to meet a former supervisor’s expectations is not evidence that he was able to meet a later supervisor’s expectations. As a general matter, US Foods is correct that our inquiry focuses on an employee’s conduct at the time he was terminated. Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154, 1158 (7th Cir. 2014). But here, Drayton’s view of Vichio’s performance is relevant because Zadlo made quick work of Vichio’s career at US Foods. We cannot ignore that Vichio received his first negative performance review less than a month after Zadlo’s arrival and that Zadlo decided to “facilitate” Vichio’s exit from US Foods within 25 days at the company.1 All this even though Zadlo testified he was unsure whether he “could have started to form an opinion” about Vichio’s performance within a month of arriving at US Foods.

Second, a reasonable jury could conclude that Zadlo’s reasons for being dissatisfied with Vichio’s performance within such a short time do not hold up to scrutiny. For example, Zadlo asserts he learned from Hunter that Vichio was one of the lower-performing employees in the warehouse. But Hunter testified that he could not recall discussing Vichio’s job performance within the first 30 days of Zadlo’s arrival at US Foods. Zadlo also places great emphasis on having a bad first impression of Vichio during their first meeting because Vichio said he would quit as soon as his son signed a Major League Baseball contract. Vichio denies making this comment—he testified that the two simply talked about their families and being baseball fans.

Third, though the initial performance memorandum purported to give Vichio an opportunity to improve within 30 days, Vichio’s termination seemed to be predetermined. Zadlo immediately started looking for a night warehouse supervisor in Bensenville—a replacement hire.2 Indeed, it did not matter that during this time that Vichio checked in daily with his immediate supervisor, Delhaye, about his performance and Delhaye reassured Vichio that he was meeting expectations. At the end of the 30 days, Zadlo still put Vichio on a performance improvement plan and said in no uncertain terms that the goal of the plan was to “facilitate” Vichio’s “decision” to quit.

Fourth, Zadlo appeared to be the driving force behind concocting generalized negative feedback for Vichio. Zadlo provided *693 Delhaye with an outline of the initial performance memorandum which stated that although Vichio’s team was completing enough work, Vichio needed to improve his attitude and focus more on the quality of his and his subordinates’ work. Zadlo then had a direct hand in crafting the identical boilerplate improvement plans for Vichio and Cline. The plans faulted Vichio and Cline for failing to take “concrete steps” to help the warehouse meet its profit goals, but the profit goals were at least in part affected by Zadlo’s decision to freeze “selector” hiring. The plans even attributed the same “waiting to be walked out” quote to both employees, yet US Foods cannot identify anyone who directly heard Vichio make this statement.3

Fifth, a jury could reasonably conclude that Zadlo was not content with simply putting Vichio on a performance improvement plan: he wanted to expedite Vichio’s ultimate termination and create a document trail in the process. Zadlo was dissatisfied that Delhaye was not administering Vichio’s and Cline’s performance improvement plans “fast enough” and appointed Hunter to take over the disciplinary process. An email from Hunter to Zadlo suggests that Zadlo asked Hunter to look for “good examples” to use against Vichio as grounds for termination, but that Hunter observed Vichio performing his duties as required by the job. And when Hunter prepared follow-up evaluations for Vichio and Cline that were once again identical, Zadlo told Hunter to revise them, explaining that “these have to be airtight.”

Sixth, Vichio’s immediate supervisors did not share Zadlo’s purported concerns with Vichio’s performance. Delhaye testified that he would not have put Vichio on the performance improvement plan.4 And according to Vichio, both Delhaye and Hunter indicated their disagreement with Zadlo’s decisions: Delhaye “almost had tears in his eyes” when he delivered the initial performance memorandum to Vichio, and Hunter said “Nick, this wasn’t me” when escorting Vichio to his car after Vichio was fired.

Lastly, Zadlo looked for and hired a younger employee to replace Vichio. Zadlo relied on Nicole Harris, a recruiting agent, to find suitable replacement candidates. In an email to Zadlo, Harris described a candidate who was about the same age as Vichio as “more on the seasoned side.” Because Harris worked closely with Zadlo on finding Vichio’s replacement hires and knew Zadlo’s hiring criteria, her email reveals Zadlo’s criteria for new hires—a preference against “seasoned” candidates. US Foods argues that descriptions of an employee’s work experience are “not an inevitable euphemism for old age” and stray comments by non-decisionmakers are usually not indicative of the decisionmaker’s animus. See Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 721–22 (7th Cir. 2018). That is generally true. But here, Harris emailed the decisionmaker to explain whether the candidate matched the hiring criteria and explicitly flagged the candidate’s “seasoned” nature as a negative trait. In light of all the other evidence, a jury would be free to conclude that Harris was alluding to the candidate’s age because she knew that Zadlo did not want to hire older employees. *694 5 After all, Zadlo did not hire the “seasoned” candidate and instead hired someone who was over 10 years younger than Vichio.

The court was careful to note, however, that there was evidence in the record indicating that plaintiff’s performance was “lacking”, but that the disputes presented by the evidence must be decided by a jury.

Share This: