                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




            United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                              Submitted May 25, 2006*
                               Decided May 26, 2006

                                       Before

                 Hon. FRANK H. EASTERBROOK, Circuit Judge

                 Hon. DIANE P. WOOD, Circuit Judge

                 Hon. DIANE S. SYKES, Circuit Judge


No. 05-3074

GREGORY PATMYTHES,                        Appeal from the United States District
    Plaintiff-Appellant,                  Court for the Western District of
                                          Wisconsin
                 v.
                                          No. 04-C-367-C
CITY OF JANESVILLE,
     Defendant-Appellee.                  Barbara B. Crabb,
                                          Chief Judge.

                                     ORDER

        Gregory Patmythes sued his former employer, the City of Janesville
(“Janesville”), under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112
et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq, alleging that Janesville
discharged him because of the costs of treating his cystic fibrosis. The district court
granted summary judgment for Janesville, but because Patmythes has raised



      *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-3074                                                                    Page 2

genuine issues of material fact regarding whether Janesville’s asserted non-
discriminatory reason for his termination was pretextual, we vacate and remand.

       We review a grant of summary judgment de novo, construing all facts and
inferences in the light most favorable to Patmythes. Cardoso v. Robert Bosch Corp.,
427 F.3d 429, 432 (7th Cir. 2005). Janesville hired Patmythes in March 1999 as a
Permit Coordinator in a department later named the Department of Building,
Housing, and Neighborhood Services (“Building Department”). His computer skills,
degree in Industrial Education and Technology, and expertise in construction and
drafting suited him for the permit coordinator position. That position required him
to supervise and maintain a computer system for permit and code enforcement; field
questions regarding building, zoning, and sign compliance; administer the sign code
and issue sign permits; and inspect and review residential construction plans.

       Patmythes has cystic fibrosis, a potentially life-threatening genetic condition
that requires extensive and costly medical care. Despite his condition, by all
accounts he was performing his job well—his performance was evaluated as
“superior” and “outstanding” on his employee evaluations from 1999 through 2002,
and he received several merit pay increases during his tenure with Janesville.
Christine Wilson, his immediate supervisor, found his computer and design skills
particularly useful, noting in 1999 that Patmythes “has been very helpful to staff on
Microsoft conversion,” and in 2001 that his “truss designing background is a great
asset” for the Building Department.

       Beginning in 2002, Janesville faced financial difficulties due, in part, to
rising health insurance costs, so it began a plan to overhaul its organizational
structure. In 2003 the city hired an outside analyst to further study its healthcare
plans and costs. During this period, Wisconsin reduced Janesville’s share of state
revenues by about a million dollars. As a consequence of the planned
reorganization and budget cuts, Steve Sheiffer, the Janesville city manager,
proposed a budget plan to eliminate the equivalent of 10.95 full-time positions.
This plan required that one full-time position from the Building Department be
eliminated.

      At a meeting of Janesville employees in early April 2003, Sheiffer discussed
the budget plan and proposed position eliminations. He assured employees that he
hoped to eliminate positions without any layoffs. In the event that layoffs were
necessary, Sheiffer explicitly said that he would lay off only those employees
demonstrating performance problems. On April 11 city managers told Patmythes
that he would be laid off on December 31. Sheiffer admits that when he made the
statement that only employees with performance issues would be laid off, he lied; he
knew that he would be terminating Patmythes, a good performer. Sheiffer made
these deceptive assurances, he claims, so that employees would remain calm.
No. 05-3074                                                                    Page 3

       On December 3, 2003, Janesville abandoned the “poor performance” rationale
and offered a different justification for Patmythes’s layoff in a written notice it
presented to him. The notice states that a position in the Building Department
needed to be eliminated as part of the 2004 budget plan and that after looking at
the “services each [position] provides, the benefit to and impact upon the citizens we
serve, department needs, service prioritization . . . and the overall needs and best
interests of the community,” Janesville decided to lay off Patmythes. In its filings
in court, Janesville says it laid off Patmythes because his position was not essential
and the permit coordinator duties could be easily transferred to remaining
employees.

       Patmythes can prove discrimination under the ADA or the Rehabilitation Act
through either the direct or indirect methods. Buie v. Quad/Graphics, Inc., 366
F.3d 496, 503 (7th Cir. 2004) (ADA); see Peters v. City of Mauston, 311 F.3d 835, 842
(7th Cir. 2002) (ADA standards apply to Rehabilitation Act). The direct method
requires either an admission of prohibited animus or statements or conduct from
Janesville from which forbidden hostility may be inferred. See Radue v. Kimberly-
Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). Under the indirect, burden-shifting
method, Patmythes must first make out a prima facie case. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). The burden then shifts to Janesville to
offer a legitimate, non-discriminatory reason for Patmythes’s adverse employment
action. Nese v. Julian Nordic Constr. Co., 405 F.3d 638, 641 (7th Cir. 2005); Buie,
366 F.3d at 503. Once Janesville satisfies its burden, the burden shifts back to
Patmythes to show that Janesville’s explanation was pretextual. Nese, 405 F.3d at
641; Buie, 366 F.3d at 503.

        On appeal Patmythes proceeds under both the direct and indirect methods of
proof; however, because we conclude that Patmythes has produced enough evidence
of pretext, we need only address his argument under the indirect method.
Janesville concedes that Patmythes has made out a prima facie case. So the
question is whether there is sufficient evidence to cast doubt on the sincerity of
Janesville’s asserted reason for discharging Patmythes. A factfinder can infer that
an employer is dissembling to cover up a discriminatory purpose if a plaintiff has
evidence that a proffered reason for a discharge is false. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (“a plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s asserted justification
is false, may permit the trier of fact to conclude that the employer unlawfully
discriminated”); see St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
And we have held that “[b]ecause a fact-finder may infer intentional discrimination
from an employer’s untruthfulness, evidence that calls truthfulness into question
precludes a summary judgment.” Zaccagnini v. Chas. Levy Circulating Co., 338
F.3d 672, 676 (7th Cir. 2003) (quoting Perdomo v. Browner, 67 F.3d 140, 145 (7th
Cir. 1995)). Even if the plaintiff’s evidence does not compel the conclusion that his
No. 05-3074                                                                     Page 4

employer discriminated against him, “if there is a question of fact as to the
believability of an employer’s purported reasons for an employment decision” then
“at a bare minimum it suffices to defeat the employer’s summary judgment motion.”
Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 726 (7th Cir. 2005) (internal
citation and internal quotation marks omitted). See also id. (pretext can be
reasonably inferred where employer provides shifting or inconsistent reasons for
the employment decision); Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d
573, 579 (7th Cir. 2003) (same); Krchnavy v. Limagrain Genetics Corp., 294 F.3d
871, 876-77 (7th Cir. 2002) (same); O’Neal v. City of New Albany, 293 F.3d 998,
1006 (7th Cir. 2002) (changed story is evidence of pretext); Stalter v. Wal-Mart
Stores, Inc., 195 F.3d 285, 291 (7th Cir. 1999) (same).

       In this case, Sheiffer initially told employees at the staff meeting that he
would discharge only poor performers, a statement that he knew was false.
Janesville wanted to cut health care costs and knew that Patmythes had cystic
fibrosis. To justify the layoff, Sheiffer later gave Patmythes a different explanation
for his discharge—that Patmythes’s position was unnecessary. A factfinder is now
required to determine whether, as Janesville now claims, its originally offered
reason for the discharges (poor performance) was just a lie to calm employees from
the truth (unnecessary good performers would be cut) or whether the original
reason (poor performance) was a lie to cover up a different truth (discrimination
against Patmythes as a potentially costly cystic fibrosis sufferer).

     Because Patmythes has raised genuine issues of material fact regarding
whether Janesville’s non-discriminatory reason for his termination was pretextual,
we VACATE and REMAND for proceedings consistent with this opinion.
