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Changes in supervision may result in fresh ways of doing things. Certain rules that were never fully enforced may now come to the forefront. Can a new supervisor’s radical change in a long-term employee’s performance rating be the basis for a claim of pretext in an employment discrimination claim? The Seventh Circuit appears to say yes in the case of Vichio v. U.S. Foods, Inc.

Different Way of Seeing Things?

Nicholas Vichio ran a warehouse for U.S. Foods in Illinois. From 2013 to 2016, his supervisors gave Vichio nothing but high marks in performance reviews. He was considered to be “exceeding expectations” in almost every category and was labeled as one of the best night supervisors at his warehouse. In November 2016, Vichio’s supervisor gave him another good review saying that he was “on target.” At that time, Vichio was 54 years old.

In January 2017, U.S. Foods hired a new vice president of operations at the warehouse, Charles Zadlo, who was 37 years old. Vichio alleged that Zadlo was biased against him because of his age. The facts, as recounted by the Seventh Circuit in the light most favorable to Vichio, included:

  • Within a month of Zadlo starting, Vichio received his first negative performance review. 
  • Two days after that negative review (and only 25 days after Zadlo joined the company), Zadlo placed Vichio on a performance improvement plan that was to “facilitate” Vichio leaving the company.
  • In June 2017, Vichio’s direct supervisor gave him a performance memo demanding improvement in 30 days based on an outline put together by Zadlo. 
  • Vichio checked with his direct supervisor on how he was doing and was told that he was doing “just fine” but Zadlo continued to add bad reviews into Vichio’s file.
  • At the same time, Zadlo also put another employee, Robert Cline, the oldest night warehouse supervisor, on an identical performance improvement plan. Cline’s plan was still in place when Zadlo left the company, and Cline was never terminated.
  • While this was going on, U.S. Foods was in the process of hiring two new night warehouse supervisors. Zadlo did not hire a candidate who was the same age as Vichio, who the recruiter described as “more on the seasoned side.”

In October 2017, U.S. Foods terminated Vichio. Two months later, Zadlo hired a 43 year old to replace him.

Vichio sued U.S. Foods for age discrimination. U.S. Foods moved for summary judgment claiming that it terminated Vichio for non-pretextual performance reasons. The lower court agreed and dismissed Vichio’s case. He appealed.

Was There Enough to Show Pretext?

The Seventh Circuit looked at one question: Did Vichio present sufficient evidence that would allow a reasonable jury to find that U.S. Foods engaged in age discrimination and that the newly found performance problems were merely pretext? The court concluded that numerous factors would allow a jury to find in Vichio’s favor. 

First, Vichio’s employment record was “virtually pristine” until the arrival of Zadlo. Second, it could be suspicious to a jury that Zadlo developed his negative opinion about Vichio’s performance in his short time with the company (30-60 days). Third, the fact that U.S. Foods was apparently already looking for new warehouse managers while Vichio was under a performance improvement plan could indicate that his termination was “predetermined.” Fourth, Zadlo appeared to generate all of the negative reviews of Vichio. Fifth, Zadlo didn’t just want a performance improvement plan for Vichio, he apparently wanted him gone and quickly. Sixth, and fairly important, Vichio’s immediate supervisors did not agree with Zadlo’s thoughts on Vichio’s performance. Finally, Zadlo looked for, and found, a younger employee to replace Vichio.

The court noted that on summary judgment, the judge must view the evidence in the light most favorable to Vichio. Based on those factors, the Seventh Circuit ruled that the lower court was wrong to dismiss the case and that the issue of age discrimination and pretext should instead go to a jury. Although the court stated that there is evidence in the record that could lead a jury to believe that Vichio’s performance was “indeed lacking,” summary judgment is only proper if “no reasonable factfinder could conclude that U.S. Foods targeted Vichio for termination due to his age.” The Seventh Circuit found that was not the case here and let the case go forward.

Does This Mean New Bosses Can’t Have Higher Expectations?

Supervisors turn over at companies every day. This case does not hold that new management cannot make different decisions on employees. What this does show, however, is that a sudden change in a company’s assessment of an employee by a new boss may be looked at with heightened scrutiny by a court, and maybe even a jury. In this case, the documentation on Vichio before Zadlo’s arrival was extensive and positive. That a new boss could have such a different take on performance in such a short time may need a closer look. Sometimes you may want to step back and look at an employee’s history with the company. How will a jury look at it? New management should also be encouraged to read the past reviews, as well as listen to current supervisors.