             Case: 11-16052   Date Filed: 12/20/2012   Page: 1 of 13

                                                                       [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                              ____________

                                 No. 11-16052
                                 ____________

                     D.C. Docket No. 1:10-cv-00125-WCO

BARBARA KRAGOR

                                                        Plaintiff-Appellant,
                                     versus

TAKEDA PHARMACEUTICALS AMERICA, INC.,

                                                        Defendant-Appellee.

                                _____________

                  Appeal from the United States District Court
                      for the Northern District of Georgia
                                ______________
                              (December 20, 2012)

Before TJOFLAT, CARNES, and JORDAN, Circuit Judges.

JORDAN, Circuit Judge:

      It may be that a “[c]ontradiction is not a sign of falsity, nor the lack of

contradiction a sign of truth.” BLAISE PASCAL, PASCAL’S PENSÉES 104 (E.P. Dutton

& Co., Inc. 1958) (1670). But under the Age Discrimination in Employment Act, 29

U.S.C. § 621 et seq., a contradiction of the employer’s proffered reason for the
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termination of an employee is sometimes enough, when combined with other evidence,

to allow a jury to find that the firing was the result of unlawful discrimination. See

generally 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.”). In this case, the corporate executive who

terminated the plaintiff for alleged misconduct later said that the plaintiff was an

exceptional employee who had done nothing wrong, had done everything right, and

should not have been fired. We hold—not surprisingly we think—that such evidence,

when combined with a prima facie case, lets the plaintiff get to a jury on her age

discrimination claim, and accordingly reverse the district court’s grant of summary

judgment in favor of the employer.

                                           I

      Barbara Kragor began working for Takeda Pharmaceuticals in 1999. Because

the pharmaceutical industry is heavily regulated by the federal government, Takeda

adopted strict conduct policies for its employees, including prohibitions against

providing any items of value to a healthcare provider (e.g., a doctor) to induce the

provider to prescribe the company’s products.

      In 2008, Takeda began investigating whether Ms. Kragor had provided a doctor

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with improper gifts and benefits. A few months later, Dan Orlando, a Takeda vice-

president, terminated Ms. Kragor because she had violated, or at a minimum had

engaged in behavior that appeared to violate, the company’s conduct policies. Ms.

Kragor, who was 49 years old at the time of the termination, believed that she had been

the victim of age discrimination, and sued Takeda under the ADEA, 29 U.S.C. §

623(a)(1).

      The district court granted summary judgment in favor of Takeda because Ms.

Kragor did not present sufficient evidence from which a jury could conclude that

Takeda’s proffered nondiscriminatory reason for the termination—that Ms. Kragor

violated (or appeared to violate) the company’s conduct policies—was pretextual.

See generally Chapman v. AI Transport, 229 F.3d 1012, 1037 (11th Cir. 2000) (en

banc) (“In order to avoid summary judgment, a plaintiff must produce sufficient

evidence for a reasonable factfinder to conclude that each of the employer’s proffered

nondiscriminatory reasons is pretextual.”). Ms. Kragor then appealed.

                                          II

      We exercise plenary review of the district court’s grant of summary judgment,

viewing all the evidence, and drawing all reasonable factual inferences, in favor of

Ms. Kragor. See Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008).

Summary judgment is appropriate only when “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A genuine issue of material fact exists if ‘the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Dixon v. Hallmark

Cos., Inc., 627 F.3d 849, 854 (11th Cir. 2010) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).

                                          A

      A claim of unlawful age discrimination under the ADEA may be established

through direct or circumstantial evidence. See Van Voorhis v. Hillsborough Cnty. Bd.

of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008). When such a claim is based

on circumstantial evidence, we analyze the allocation of burdens and the presentation

of proof under the framework articulated in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). See Chapman, 229 F.3d at 1024 (applying McDonnell Douglas to

evaluate ADEA claims); Mauter v. Hardy Corp., 825 F.2d 1554, 1556 (11th Cir. 1987)

(same).

      Under McDonnell Douglas, a plaintiff must first establish a prima facie case

of discrimination, which “in effect creates a presumption that the employer unlawfully

discriminated against the employee.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 254 (1981). To make out a prima facie case of age discrimination, the plaintiff

must show four things: “(1) that she was a member of the protected group of persons


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between the ages of forty and seventy; (2) that she was subject to adverse employment

action; (3) that a substantially younger person filled the position that she sought or

from which she was discharged; and (4) that she was qualified to do the job for which

she was rejected.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359

(11th Cir. 1999).

       Once the plaintiff establishes a prima facie case of age discrimination, the

burden shifts to the employer to rebut the presumption of discrimination with evidence

of a legitimate, nondiscriminatory reason for the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802–03. “This burden is one of production, not

persuasion . . . .” Reeves, 530 U.S. at 142. Thus, “[t]o satisfy that burden of production,

‘[t]he defendant need not persuade the court that it was actually motivated by the

proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue

of fact as to whether it discriminated against the plaintiff.’” Combs v. Plantation

Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (quoting Burdine, 450 U.S. at 254–55).

If the employer produces evidence of a legitimate, nondiscriminatory reason for the

adverse action, the plaintiff is afforded an opportunity to show that the employer’s

stated reason is a pretext for discrimination. See, e.g., Reeves, 530 U.S. at 143;




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McDonnell Douglas, 411 U.S. at 804.1

       The plaintiff can show pretext “either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by showing

that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S.

at 256. “In other words, the plaintiff has the opportunity to come forward with

evidence, including the previously produced evidence establishing the prima facie

case, sufficient to permit a reasonable factfinder to conclude that the reasons given

by the employer were not the real reasons for the adverse employment decision.”

Combs, 106 F.3d at 1528. If a plaintiff produces sufficient evidence that the

employer’s proffered reason is merely pretextual, that evidence may sometimes be

enough to preclude summary judgment in favor of the employer. See Reeves, 530 U.S.

at 148. See also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (“The

factfinder’s disbelief of the reasons put forward by the defendant (particularly if

disbelief is accompanied by a suspicion of mendacity) may, together with the elements

of the prima facie case, suffice to show intentional discrimination.”).


       1
           Some of our post-Reeves cases have described this as the burden shifting back to the
plaintiff to show pretext, see, e.g., Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344 (11th Cir.
2003), but it is more accurate to say that once the employer offers evidence of a legitimate,
nondiscriminatory reason for the adverse action, “the McDonnell Douglas framework—with its
presumptions and burdens—disappear[s], and the sole remaining issue [i]s discrimination vel non.”
Reeves, 530 U.S. at 142–43 (citations and internal quotation marks omitted). The opportunity
provided to a plaintiff to show pretext is simply an opportunity to present evidence from which the
trier of fact can find unlawful discrimination.

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                                         B

      It is undisputed that Ms. Kragor established a prima facie case of age

discrimination under the ADEA: she was a member of the protected age group because

she was over the age of 40; she was discharged by Takeda; she was replaced by a

younger person who was outside the protected age group; and she was qualified for

the position from which she was terminated. It is also undisputed that Takeda

presented evidence of a legitimate, nondiscriminatory reason for terminating Ms.

Kragor—that Ms. Kragor violated (or appeared to violate) its policies governing

employee interactions with healthcare providers. Thus, the narrow issue on appeal is

whether Ms. Kragor presented sufficient evidence of pretext to create a genuine issue

of material fact as to whether Takeda unlawfully discriminated against her because

of her age.

      We begin with Takeda’s proffered reason for discharging Ms. Kragor. See

Chapman, 229 F.3d at 1030 (“Provided that the proffered reason is one that might

motivate a reasonable employer, an employee must meet that reason head on and rebut

it, and the employee cannot succeed by simply quarreling with the wisdom of that

reason.”). In May of 2008, Takeda began looking into allegations that Ms. Kragor had

violated the company’s conduct policies by (1) providing Dr. Bruce Bode—a

physician who frequently used Takeda’s products and was one of the company’s best


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clients—with discounted Delta Airlines tickets (referred to by the parties as “buddy

passes”), and (2) approving reimbursements to Takeda sales representatives who had

improperly expensed Dr. Bode’s holiday parties. Takeda interviewed current and

former employees (including Ms. Kragor) and reviewed emails and other documents

as part of its investigation.

      For her part, Ms. Kragor provided explanations for the things she was accused

of doing. First, regarding the buddy passes, Ms. Kragor maintained that she did not

personally provide Dr. Bode with discounted airline tickets. Ms. Kragor said that her

husband Bud Kragor, a Delta Airlines pilot who received the discounted tickets as part

of his employment, gave or sold the tickets to Dr. Bode directly and independently

of her professional relationship with Dr. Bode and her employment at Takeda. Ms.

Kragor explained that Mr. Kragor had a personal relationship with Dr. Bode which

predated her own professional relationship with him, and that she only became aware

of their personal relationship after she met Dr. Bode in her capacity as a Takeda sales

representative. Ms. Kragor did concede that, on occasion, she would act as an

intermediary between her husband and Dr. Bode to facilitate the sale or transfer of the

discounted tickets when Mr. Kragor was unavailable, but she maintained that she did

so separate and apart from her employment at Takeda. Second, with respect to Dr.

Bode’s holiday parties, Ms. Kragor denied knowing that the sales representatives had


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sought reimbursement for those parties on their expense reports. She said that she had

approved the expense reports because there was no indication that the luncheon

expenses on the reports were for Dr. Bode’s holiday parties.

      At the conclusion of the internal investigation, individuals from Takeda’s

human resources, legal, and compliance departments collectively determined that Ms.

Kragor had violated, or had engaged in behavior that appeared to violate, the

company’s conduct policies. Accordingly, they recommended to Mr. Orlando, a

Takeda vice-president, that Ms. Kragor be terminated. Mr. Orlando was not involved

in the investigation, but after reviewing the information and documents obtained

during the investigation, he accepted the recommendation and terminated Ms.

Kragor’s employment. As he explained in his declaration, Mr. Orlando concluded that

Ms. Kragor’s actions with respect to the buddy passes “gave rise to the appearance”

of a violation of Takeda’s conduct policies. See R1:52, Exhibit 2 at ¶ 9.

      As permitted under cases like McDonnell Douglas and Reeves, Ms. Kragor

presented evidence in an effort to establish that Takeda’s proffered reason for

discharging her—i.e., that she violated (or appeared to violate) the company’s conduct

policies—was pretextual. Among other things, Ms. Kragor offered evidence that Mr.

Orlando, who made the final decision to terminate her employment, completely

disavowed Takeda’s proffered nondiscriminatory reason for the discharge in a


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subsequent conversation with Dr. Bode. That conversation, according to Dr. Bode’s

declaration, went as follows:

      After Barbara Kragor was fired by Takeda I made numerous phone calls
      to upper level management in order to make clear that Barbara Kragor
      had nothing to do with buddy passes. I received a telephone call from
      Dan Orlando. Dan Orlando told me that Barbara Kragor was an
      exceptional employee, that she had done nothing wrong, that she had
      done everything right, and further indicated that she should not have
      been fired.

R1:56, Exhibit 4 at ¶ 8. Significantly, neither Ms. Kragor nor Takeda deposed Mr.

Orlando or Dr. Bode. The district court, therefore, was faced with dueling declarations

(Mr. Orlando’s and Dr. Bode’s) concerning the validity of Takeda’s proffered

nondiscriminatory reason for Ms. Kragor’s termination.

      In granting summary judgment to Takeda, the district court ruled that Dr. Bode’s

declaration did not create a genuine issue of material fact as to pretext because Mr.

Orlando was only expressing his personal beliefs to Dr. Bode:

      The statements attributed to Orlando by Dr. Bode, if true, indicate that
      Orlando disagreed with the determination made by the Human
      Resources, Legal, and Compliance Departments that plaintiff’s actions
      constituted misconduct meriting termination, but do not controvert the
      undisputed fact that he accepted the termination recommendation that
      was presented to him. Orlando’s personal belief regarding plaintiff’s con-
      duct—where it remains undisputed that he accepted the recommendation
      of those with greater expertise regarding the laws underlying defendant’s
      Compliance Policies—does not create a genuine issue of material fact
      regarding whether defendant presented an “honest explanation” for the
      termination decision.


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R1:61 at 22. As we explain below, we disagree with the district court’s analysis.

      When a plaintiff chooses to attack the veracity of the employer’s proffered

reason, “[the] inquiry is limited to whether the employer gave an honest explanation

of its behavior.” Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991).

The district court’s characterization of Mr. Orlando’s comments to Dr. Bode is a

reasonable one, but it is not the only permissible construction of the remarks. It is also

reasonable to interpret the statements as Mr. Orlando’s admission that the proffered

nondiscriminatory reason was a cover-up for discrimination. At the Rule 56 stage,

where reasonable inferences are to be drawn in favor of the party opposing summary

judgment, the district court should not have placed a gloss on the remarks in favor of

Takeda.

      When the employer’s actual decisionmaker, after terminating an employee for

misconduct (or the appearance of misconduct), says without qualification that the

employee is exceptional, did nothing wrong, did everything right, and should not have

been fired, that contradiction—when combined with a prima facie case—is enough

to create a jury question on the ultimate issue of discrimination. See, e.g., Johnson

v. Weld Cnty., 594 F.3d 1202, 1211 (10th Cir. 2010) (noting that pretext may be shown

by “evidence that the employer didn’t really believe its proffered reasons” for the

challenged action). Ms. Kragor has “cast sufficient doubt on [Takeda’s] proffered


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nondiscriminatory reasons to permit a reasonable factfinder to conclude that [its]

proffered ‘legitimate reasons were not what actually motivated its conduct.’” Combs,

106 F.3d at 1538 (quoting Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 605 (11th Cir.

1994)).2

       Of course, “if the jury concludes that [Takeda’s] proffered explanation[ ] [is]

unworthy of belief, it may still remain unpersuaded that discrimination was the real

reason for the [termination]. That decision is entrusted to the jury’s discretion, but to

exercise that discretion, the jury has to get the case.” Combs, 106 F.3d at 1538. See

Gross v. FBI Fin. Servs., Inc., 557 U.S. 167, 178 (2009) (ADEA plaintiff must show,

through direct or circumstantial evidence, “that age was the ‘but-for’ cause of the

challenged employer decision”).

                                               III

       Mr. Orlando’s denial of Takeda’s proffered reason for Ms. Kragor’s termination

—which we accept as true for purposes of summary judgment—creates a jury question



       2
          We do not know, of course, whether Mr. Orlando actually made the statements attributed
to him by Dr. Bode. As noted earlier, the parties did not depose Mr. Orlando or Dr. Bode. Maybe at
trial Mr. Orlando will deny that he said anything favorable about Ms. Kragor to Dr. Bode, and if so
a jury will have to assess the credibility of Mr. Orlando and Dr. Bode. Or maybe Mr. Orlando will
admit to making the statements attributed to him, but will explain that they were only his personal
beliefs or were made so as to not implicate Dr. Bode (a significant Takeda client) in any ethical
misconduct, and therefore did not undermine the personnel decision he made on behalf of Takeda.
If he does so, however, a jury will have to determine whether that explanation is worthy of belief.


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as to discrimination when combined with Ms. Kragor’s prima facie case. We therefore

reverse the district court’s grant of summary judgment in favor of Takeda and remand

for a trial on Ms. Kragor’s claim that her termination was the result of age

discrimination in violation of the ADEA.

      REVERSED AND REMANDED.




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