Nicholas Vichio v. US Foods, Inc.

                              In the

    United States Court of Appeals
                  For the Seventh Circuit
                    ____________________
No. 22-1180
NICHOLAS VICHIO,
                                                 Plaintiff-Appellant,
                                v.

US FOODS, INC.,
                                                Defendant-Appellee.
                    ____________________

        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
         No. 1:18-cv-08063 — Robert W. Gettleman, Judge.
                    ____________________

  ARGUED OCTOBER 31, 2022 — DECIDED DECEMBER 15, 2023
                ____________________

   Before EASTERBROOK, JACKSON-AKIWUMI, and LEE, Circuit
Judges.
   JACKSON-AKIWUMI, Circuit Judge. Nicholas Vichio was a
high-performing warehouse supervisor at US Foods, Inc. for
over four years, until Charles Zadlo joined the company as
the vice president of operations. Zadlo promptly placed Vi-
chio on a performance improvement plan and terminated him
within nine months. Vichio sued US Foods under the Age Dis-
crimination in Employment Act, 

(c). The
2                                                  No. 22-1180

district court granted summary judgment for US Foods, find-
ing that Vichio failed to show that the performance issues
cited by US Foods were pretext for discrimination. Vichio ap-
peals from that judgment.
    We conclude Vichio presented sufficient evidence from
which a reasonable jury could infer discrimination. We there-
fore reverse the district court’s judgment and remand the case
for further proceedings consistent with this opinion.
                               I
    We construe the record in the light most favorable to Vi-
chio as the non-movant on summary judgment. Dunlevy v.
Langfelder, 

 (7th Cir. 2022). US Foods supplies
and distributes food to restaurants and hotels. The company
stores and packages its products at warehouses before ship-
ping them to customers. Between March 2013 and October
2017, US Foods employed Vichio as a night warehouse super-
visor in Bensenville, Illinois. Vichio supervised “selectors”
who prepared customer orders for shipping. Vichio reported
to Mark Delhaye, the night warehouse manager, who in turn
reported to Fred Hunter, the warehouse’s director of opera-
tions. The warehouse’s vice president of operations oversaw
all warehouse employees.
    In all but his final year at US Foods, Vichio received posi-
tive performance reviews. Mike Drayton, vice president of
operations during this time, viewed Vichio as one of the best
night supervisors at the Bensenville warehouse. Drayton
heard from Hunter (the director of operations) and Delhaye
(Vichio’s direct manager) that they too saw Vichio as a top
employee. The final performance review Vichio received dur-
ing Drayton’s term, issued in March 2016, was positive.
No. 22-1180                                                 3

Vichio’s managers marked him as “exceeding expectations”
in almost every category. Although Vichio rated himself as
only “partially” meeting expectations in categories related to
“employee development” and “personal excellence” (involv-
ing continued learning and self-motivation), his managers
held a higher view of his work. They rated him as exceeding
expectations in the first category and meeting expectations in
the second category. The only blemish on Vichio’s perfor-
mance review was Hunter’s comment that Vichio focused too
much on completing jobs as quickly as possible, sometimes
overlooked details, and made mistakes. But even then,
Hunter concluded that Vichio was meeting the company’s ex-
pectations.
    Drayton left US Foods in November 2016. In December,
Delhaye gave Vichio another positive performance review,
rating him as “on target.” But things changed in January 2017,
when US Foods hired Zadlo, age 37, to take over as vice pres-
ident of operations at the warehouse. Less than a month after
Zadlo’s arrival, Vichio—54 years old at the time—received his
first negative performance review. Delhaye marked Vichio as
“developing” in several areas. Two days after this review, and
only 25 days after joining the company, Zadlo placed Vichio
on a performance improvement plan to “facilitate” Vichio
leaving the company.
    In June 2017, Delhaye gave Vichio a performance memo-
randum directing him to improve his conduct within 30 days.
Delhaye prepared the memorandum from an outline he ob-
tained from Zadlo. After receiving the performance memo-
randum, Vichio checked in daily with Delhaye to ensure that
his job performance was meeting the company’s expectations.
Delhaye assured Vichio that Vichio was doing just fine.
4                                                 No. 22-1180

Despite this, at the end of the 30 days, US Foods placed Vichio
on a performance improvement plan, along with Robert
Cline, the oldest night warehouse supervisor in Bensenville at
age 61. Vichio and Cline’s plans were not personalized; US
Foods used identical language in both, even accusing both
men of making the same comment that he was “waiting to be
walked out.”
    Initially, Delhaye was responsible for administering both
performance improvement plans. But Zadlo quickly became
dissatisfied with Delhaye’s pace and instructed Hunter to
take over. This prompted Hunter to start documenting ways
in which Vichio’s performance was deficient. In one email
Hunter sent to Zadlo shortly after assuming Vichio’s disci-
pline supervision, he noted Vichio had correctly ordered a se-
lector to reassemble an incorrectly stacked pallet at the ware-
house. After explaining that Vichio had performed his job cor-
rectly, Hunter told Zadlo, “So that would not be a good ex-
ample.” In the same email, Hunter said he would “get down
stairs [sic] and see what [t]hese guys are not doing today.”
   Hunter prepared follow-up reviews of Vichio and Cline to
mark 60 days on their performance improvement plans. Like
the initial plans, the 60-day reviews for each employee were
identical. This time, however, Zadlo asked Hunter to edit
Cline’s review so that it was not the same as Vichio’s. Zadlo
explained that Hunter needed to provide personalized and
specific details about why the employees’ performance was
unsatisfactory, and asked Hunter to “please understand these
have to be airtight.”
   While Vichio and Cline were on the performance improve-
ment plans, US Foods hired an outside firm to recruit two new
night warehouse supervisors. The recruiting company’s
No. 22-1180                                                    5

agent, Nicole Harris, communicated with Zadlo on a weekly
basis about his criteria for the positions. One candidate Harris
discovered was approximately the same age as Vichio. In an
email to Zadlo, Harris noted the candidate’s good qualities
included his mentality and experience with unions. But as a
negative quality, Harris said that the candidate was “more on
the seasoned side.” Zadlo gave the candidate an interview but
ultimately did not hire him.
    US Foods terminated Vichio on October 26, 2017. Two
months later, Zadlo selected a 43-year-old hire—11 years
younger than Vichio—to replace Vichio as a night warehouse
supervisor. Then, at the beginning of January 2018, Zadlo left
US Foods. Cline’s probation period under his performance
improvement plan was set to expire during the same holiday
weekend that Zadlo announced his resignation. Cline re-
mained employed at US Foods and did not hear anything
more about his performance improvement plan after Zadlo
left. He was never told that he successfully completed the
plan.
    Vichio sued US Foods alleging age discrimination under
the Age Discrimination in Employment Act. US Foods moved
for summary judgment, arguing Vichio was terminated for
non-pretextual performance reasons. The district court
granted the motion. On appeal, Vichio argues he provided
sufficient evidence to survive summary judgment and pre-
sent his case to a jury.
                               II
   At summary judgment, we ask whether a reasonable jury
could conclude Vichio’s age was the cause of his termination.
Ortiz v. Werner Enters., Inc., 

 (7th Cir. 2016).
6                                                       No. 22-1180

In our circuit, plaintiffs can rely on two frameworks to show
discrimination. Under the holistic approach established in
Ortiz, we look at the evidence in the aggregate to determine
whether it allows an inference of prohibited discrimination.

. Under the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 

 (1973), a plain-
tiff must first establish a prima facie case for discrimination.
This requires, in part, evidence that the plaintiff was meeting
the employer’s performance expectations. Brooks v. Avancez,

 (7th Cir. 2022). The burden then shifts to the
employer to present a “legitimate, non-discriminatory rea-
son” for the employment decision. Bless v. Cook Cnty Sheriff’s
Off., 

 (7th Cir. 2021) (quoting Formella v. Bren-
nan, 

 (7th Cir. 2016)). If the employer presents
a legitimate reason, the burden shifts back to the employee to
show the proffered reason is a pretext for discrimination. Id.;
St. Mary’s Honor Ctr v. Hicks, 

, 515–16 (1993). In
other words, “[t]he defense bears the burden of articulating
the justification, but the plaintiff bears the burden of showing
that the justification is a pretext.” Sterlinski v. Catholic Bishop of
Chicago, 

 (7th Cir. 2019).
     We may skip the McDonnell Douglas prima facie analysis
if the employer raises the employee’s performance as the rea-
son for the adverse employment decision. Bragg v. Munster
Med. Rsch. Found. Inc., 

, 271 (7th Cir. 2023). In such
a case, issues of satisfactory performance and pretext overlap,
allowing us to “proceed directly to . . . pretext.” 

 (quoting
Everroad v. Scott Truck Sys., Inc., 

, 477–78 (7th Cir.
2010)). “Pretext does not require that plausible facts presented
by the defendant not be true, only that they not be the reason
for the employment decision.” Hasham v. California State Bd. of
Equalization, 

 (7th Cir. 2000).
No. 22-1180                                                   7

    Vichio proceeds under both the McDonnell Douglas and
Ortiz frameworks. Because US Foods has raised Vichio’s per-
formance as the reason for his termination, we need not con-
sider Vichio’s prima facie case under McDonell Douglass or
conduct a separate analysis of the facts under the two frame-
works. We answer the same question under either test:
whether Vichio has presented sufficient evidence that would
allow a reasonable jury to find that US Foods engaged in pro-
hibited age discrimination. Groves v. South Bend Cmty. Sch.
Corp., 

, 769–70 (7th Cir. 2022). The district court
concluded that Vichio failed to do so. We disagree.
                              III
   There is significant evidence in the record to support a rea-
sonable inference that US Foods used Vichio’s performance as
pretext for discrimination. On summary judgment, we inter-
pret this evidence in the light most favorable to Vichio.
    To begin, Vichio’s record at US Foods was virtually pris-
tine 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 ar-
gues 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 em-
ployee’s conduct at the time he was terminated. Zayas v. Rock-
ford Mem’l Hosp., 

 (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
8                                                         No. 22-1180

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 rea-
sons 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 com-
ment—he testified that the two simply talked about their fam-
ilies and being baseball fans.
   Third, though the initial performance memorandum pur-
ported 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


    1 US Foods claims Delhaye wrote this negative review before Zadlo

arrived. That argument is not supported by evidence in the record. US
Foods appears to be conflating the date of Vichio’s “mid-year” review
completed in December 2016, before Zadlo’s arrival, with his “year-end”
review completed in February 2017, after Zadlo’s arrival. Moreover, Del-
haye testified that he was not aware of any performance document created
before Zadlo’s arrival that suggested Vichio’s performance was not meet-
ing the company’s expectations.
No. 22-1180                                                             9

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 perfor-
mance and Delhaye reassured Vichio that he was meeting ex-
pectations. 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 “de-
cision” to quit.
    Fourth, Zadlo appeared to be the driving force behind
concocting generalized negative feedback for Vichio. Zadlo
provided 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 atti-
tude and focus more on the quality of his and his subordi-
nates’ work. Zadlo then had a direct hand in crafting the iden-
tical 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


    2 US Foods disputes that the job posting was meant to replace Vichio

and claims that it merely wanted to add an additional supervisor to the
warehouse. But the company’s position is contradicted by an email from
the warehouse’s HR representative, who forwarded the job posting to the
area president explaining that Vichio was on a performance improvement
plan.
    3 Vichio denies saying that he was “waiting to be walked out.” How-

ever, he admits bragging to coworkers about his son’s potential draft by a
10                                                         No. 22-1180

   Fifth, a jury could reasonably conclude that Zadlo was not
content with simply putting Vichio on a performance im-
provement plan: he wanted to expedite Vichio’s ultimate ter-
mination 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. Del-
haye testified that he would not have put Vichio on the per-
formance 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 escort-
ing Vichio to his car after Vichio was fired.




Major League Baseball team and commenting about retiring if his son suc-
ceeded.
     4 US Foods argues Delhaye was not Vichio’s supervisor at the time of

Vichio’s termination. An email from Delhaye to Zadlo in December 2017
indicates otherwise, and Zadlo testified that Delhaye was still the ware-
house manager.
No. 22-1180                                                                11

    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 “sea-
soned” candidates. US Foods argues that descriptions of an
employee’s work experience are “not an inevitable euphe-
mism for old age” and stray comments by non-decisionmak-
ers are usually not indicative of the decisionmaker’s animus.
See Skiba v. Illinois Cent. R.R. Co., 

, 721–22 (7th Cir.
2018). That is generally true. But here, Harris emailed the de-
cisionmaker to explain whether the candidate matched the
hiring criteria and explicitly flagged the candidate’s “sea-
soned” nature as a negative trait. In light of all the other evi-
dence, a jury would be free to conclude that Harris was allud-
ing to the candidate’s age because she knew that Zadlo did
not want to hire older employees. 5 After all, Zadlo did not




    5 US Foods insists that because Harris is not a decisionmaker, her com-

ments are relevant only if she had a “singular influence” over Zadlo and
used that influence to manipulate his employment decisions. That is the
standard for a “cat’s paw” theory of discrimination not at issue in this case.
See Martino v. MCI Commc'ns Servs., Inc., 

 (7th Cir. 2009).
A subordinate’s statements that reveal a supervisor’s animus can be rele-
vant evidence of discrimination even if that subordinate has no personal
input on the challenged decision. Baines v. Walgreen Co., 

(7th Cir. 2017).
12                                                         No. 22-1180

hire the “seasoned” candidate and instead hired someone
who was over 10 years younger than Vichio. 6
    To be sure, there is evidence in the record that could lead
a jury to conclude that Vichio’s performance was indeed lack-
ing. Take the fact that Cline retained his job while Vichio did
not. A jury may see Cline as a counterexample to Vichio and
find that Cline retained his job because he improved his per-
formance under Zadlo’s plan. Or it may accept Vichio’s argu-
ment that Cline was next up for termination, saved only by
Zadlo’s sudden departure from the company. Similarly, US
Foods did not target another night warehouse supervisor
who was four years older than Vichio for termination. A jury
could weigh the company’s fair treatment of other employees
in the same class, but such treatment is not conclusive evi-
dence that the employer was free from animus. See Furnco
Const. Corp. v. Waters, 

 (1978). And consider
the fact that the record shows Vichio was reprimanded for not
ensuring selectors in the freezer area of the warehouse knew
how to correctly stack pallets. A jury could agree with US
Foods that this was indicative of Vichio’s poor performance;
or it could conclude that Vichio generally did not supervise
the freezer (the evidence shows he was primarily responsible
for the cooler, another area of the warehouse) and that
Hunter, who disciplined Vichio for that incident, was under


     6 Vichio argues that the district court improperly excluded Harris’s

comment from consideration. We do not read the district court’s opinion
that way. The court simply weighed the probative value of the email and
concluded that, because Harris was not the final decisionmaker on hiring,
her statement could not be attributed to Zadlo. However, as discussed
above, we consider Harris’s email sufficient evidence of the company’s
discriminatory intent.
No. 22-1180                                                             13

pressure from Zadlo to attribute mistakes to Vichio during
this time. In sum, these examples may persuade the jury at
trial, but they do not help US Foods on summary judgment
because we must view the evidence in the light most favora-
ble to Vichio. 7
    In a final attempt to convince us that the district court cor-
rectly granted its summary judgment motion, US Foods ar-
gues that even if a jury could find that the company lied about
its reasons for firing Vichio, he still he cannot show that the
performance improvement plan was pretext for age discrimi-
nation. We recognize that “[s]ome of our opinions have been
phrased in ways that suggest that a showing of pretext re-
quires a plaintiff to show the employer’s non-discriminatory
reason was dishonest, and also to show that the employer’s
true reason was discriminatory.” Runkel v. City of Springfield,

, 745 n.3 (7th Cir. 2022) (collecting cases). How-
ever, “[t]his language should not be interpreted to suggest
that a plaintiff must show both pretext and some additional
evidence of discrimination to permit the inference of unlawful
intent.” 

 (emphasis added). “[A]n employer’s dishonest ex-
planation of a decision can,” by itself, “support an inference
that its real reason was unlawful.” Joll v. Valparaiso Cmty.
Schs., 

 (7th Cir. 2020); see also St. Mary’s Honor
Ctr, 

 (holding that a trier of fact may infer




    7 The record also contains certain disputed evidence which we do not

rely on. For instance, US Foods insists that Vichio admitted to not meeting
the company’s expectations, but Vichio disputed any assertion that he did
not perform to the company’s standards.
14                                                No. 22-1180

discrimination upon rejecting an employer’s proffered reason
for termination).
                             IV
    Summary judgment is appropriate only if no reasonable
factfinder could conclude US Foods targeted Vichio for termi-
nation due to his age. But such a conclusion is possible given
that Vichio presented significant evidence to establish an in-
ference of discrimination, and the material facts relied on by
US Foods to point in the opposite direction are disputed. We
believe the parties’ dispute is better suited for a jury.
                              REVERSED and REMANDED.