Nan Wei v. Deere & Company

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 12, 2015*
Decided March 12, 2015
Before
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14-3320
NAN WEI,
Plaintiff-Appellant,
v.
DEERE & COMPANY,
Defendant-Appellee.
Appeal from the United States District
Court for the Central District of Illinois.
Nos. 4:11-cv-04028 & 4:11-cv-04034
Sara Darrow,
Judge.
O R D E R
Nan Wei, a 75-year-old engineer at Deere & Company, sued his employer under
the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634, claiming
discrimination and retaliation on the basis of his age. Wei asserted that Deere had falsely
accused him of violating its policies for reporting expenses, which led to a three-year
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See F ED. R. A PP . P.
34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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travel prohibition and denial of a bonus. He also alleged that Deere had later retaliated
against him by changing his job description and replacing him with a younger manager
on three projects. Wei filed in state court an identical lawsuit, which Deere removed to
federal court. The suits were consolidated, and the district court granted summary
judgment for Deere. Wei appeals that decision, but we agree with the district court that a
jury could not reasonably find for him on either of his claims.
We review the evidence in the light most favorable to Wei, the party opposing
summary judgment. See Kvapil v. Chippewa County, Wis., 752 F.3d 708, 712 (7th Cir. 2014).
For the most part, the facts are undisputed. Wei has worked as an engineer at Deere
since 2000, and during the first nine years he spent up to 80% of his time in China. Deere
reimburses its employees for many expenses while abroad, including medical care,
transportation, lodging, and meals. The company also gave “hardship pay” to
employees required to stay overnight in certain locations, but that practice was
discontinued in 2008. Deere used separate systems for seeking hardship pay and
reimbursement for medical care and travel expenses.
In January 2010 Deere began auditing Wei’s expense reports after his new
supervisor, Kathy Harmon, questioned one report and learned from Wei that he
routinely mischaracterized other expenses as meals to shortcut the reimbursement
process. Wei then confessed to a Human Resources employee that for several years he
also had padded his meal costs by about $10 per day instead of requesting
authorized—but taxable—hardship pay. Wei told the HR employee that he knew this
tactic was improper. Around the same time, Deere was investigating an accusation that
Wei had violated company policy by sharing a hotel room in China with a female
subordinate.
Deere completed its investigation in March 2010. The company concluded that
Wei had falsified numerous expense reports, but he was cleared of inappropriate
involvement with his subordinate. These findings are detailed in a letter sent to Wei that
same month. As discipline Deere barred Wei from foreign travel, denied him a bonus for
2010, and reduced his responsibility for projects outside the United States.
Wei had a lawyer when he filed suit in April 2011. During the next two years, as
discovery progressed on Wei’s claim of age discrimination, his colleagues made several
comments that he construed as motivated by his age. At a “retirement coffee gathering,”
Wei says, a manager asked when he would retire, and during another meeting a
colleague told Wei that both of them ought to retire soon. And in August 2011, while

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discussing with Wei his recent purchase of a used car, Harmon asked, “Is your wife also
old and used?” Then in 2013 Harmon replaced Wei with a younger manager on three
projects and changed his title from “project staff engineer” to “staff engineer
manufacturing.” Less education is needed for the latter position, Wei says, and thus the
change was a demotion. In June of that year he amended his complaint to add a claim
that Harmon’s actions were retaliation for “exercising his rights” under the ADEA.
The parties filed cross-motions for summary judgment. Wei relied on the direct
method of proof, and in ruling for Deere the district court concluded that his
circumstantial evidence of age discrimination—Deere’s investigation and imposition of
travel restrictions when he was 70 years old, coworkers’ remarks about retirement and
his wife’s age, and Harmon’s reassignment of several projects to a younger
manager—was too little to prevail. Nor could a jury reasonably find that Deere had
retaliated, the court explained, since by the time Harmon reassigned three of Wei’s
projects to a new manager, Wei’s administrative complaint of age discrimination was
more than two years old, too long to infer a causal connection. On appeal Wei insists that
both of his claims should have gone to a jury.
On his discrimination claim, Wei asserts that Deere’s audit of his expense reports
and contemporaneous investigation into whether he shared a hotel room with a
subordinate were pretexts for discrimination. The ADEA prohibits taking adverse
employment actions against workers 40 or older based on age. 29 U.S.C. §§ 623(a)(1),
631(a); Ripberger v. Corizon, Inc., 773 F.3d 871, 880 (7th Cir. 2014); Martino v. MCI Comms.
Servs., Inc., 574 F.3d 447, 452 (7th Cir. 2009). Wei presented his claim under the direct
method, which required direct or circumstantial evidence that his age was the but-for
cause of an adverse employment action. See Ripberger, 773 F.3d at 880; Hutt v. AbbVie
Prods. LLC, 757 F.3d 687, 691 (7th Cir. 2014); Andrews v. CBOCS West, Inc., 743 F.3d 230,
234 (7th Cir. 2014). Circumstantial evidence may include ambiguous statements,
comments to coworkers in the protected group, evidence that similarly situated
employees outside the protected group received systematically better treatment, and
evidence that the employer’s reasons for taking an adverse action were pretexts for
discrimination. Hutt, 757 F.3d at 691; Atanus v. Perry, 520 F.3d 662, 671–72 (7th Cir. 2008).
But whatever the evidence, it must point to intentional discrimination. Martino, 574 F.3d
at 452; Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003).
We agree with the district court that a jury could not reasonably infer that Deere’s
investigation and resulting discipline were pretexts for, or the result of, age
discrimination. At his deposition Wei admitted that he had falsified the cost of some

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meals and often grouped multiple meals when reporting his expenses. And in
statements to Harmon and an HR employee he acknowledged masking other expenses
as meals. Employees who had traveled with him verified that they had paid for one or
more of Wei’s meals on some days for which he sought reimbursement for three meals.
Deere’s letter to Wei in March 2010 explains that these admissions to Harmon and the
HR employee motivated the company’s disciplinary actions. Wei did not provide
evidence from which a trier of fact could find that Deere’s investigation or resulting
discipline were pretexts for age discrimination.
On his retaliation claim, Wei does not dispute the district court’s conclusions that
his title change was not materially adverse or that the decision to substitute a different
manager on several of his projects had occurred too long after he filed his
administrative complaint to infer a causal connection. Wei instead insists that he
engaged in protected activity during the litigation by scheduling Harmon’s deposition
and that her changes followed “in close sequence.” A range of conduct can constitute
protected activity, see Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009), but the
discussion between Wei’s and Deere’s lawyers about dates when Harmon could be
deposed does not qualify. See Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 719–20, 722,
727 (6th Cir. 2008) (delivering confidential documents to lawyer during
employment-discrimination suit is not protected activity); Fox v. Eagle Distributing Co.,
Inc., 510 F.3d 587, 591–92 (6th Cir. 2007) (explaining that courts apply similar analysis to
ADEA and Title VII anti-retaliation provisions). And the more than two years that had
passed between Wei’s administrative complaint and lawsuit and Harmon’s choice to
substitute a different manager on several projects is too long to raise an inference of
causation. See Kidwell v. Eisenhauer, 679 F.3d 957, 966–67 (7th Cir. 2012); Sauzek v. Exxon
Coal USA, Inc., 202 F.3d 913, 918–19 (7th Cir. 2000).
We have reviewed Wei’s remaining contentions, and none has merit.
AFFIRMED.

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