Timothy L. Runyon v. Applied Extrusion Technologies, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3015
TIMOTHY L. RUNYON,
Plaintiff-Appellant,
v.
APPLIED EXTRUSION TECHNOLOGIES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:07-cv-0040-LJM-WGH—Larry J. McKinney, Judge.
ARGUED FEBRUARY 19, 2010—DECIDED AUGUST 30, 2010
Before POSNER, FLAUM, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Timothy L. Runyon worked for
Applied Extrusion Technologies, Inc. (“Extrusion”), for
about a year, from February 2005 until February 2006.
Extrusion is a manufacturer of plastic film. Runyon
worked in one of its Terre Haute plants as a support
operator in the finishing area. From the start, he had a
turbulent relationship with his co-workers. After
several heated disputes, Extrusion decided to fire him.

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2 No. 09-3015
Because it did not take similarly harsh action against
a younger employee, Troy Corbett, even though Corbett
had also misbehaved, Runyon concluded that the
company had discriminated against him on the basis of
his age and brought an action under the Age Discrim-
ination in Employment Act (“ADEA”), 29 U.S.C. §§ 621
et seq. The case went to trial, but at the close of Runyon’s
case-in-chief, the district court granted judgment as a
matter of law in Extrusion’s favor. We have looked at
the record de novo, and, like the district court, we can
find no evidence that Extrusion’s action was motivated
by Runyon’s age. See Gross v. FBL Financial Services, Inc.,
129 S. Ct. 2343, 2352 (2009). We therefore affirm.
I
We recount the background facts in the light most
favorable to Runyon. He began working for Extrusion on
June 8, 2005, at the age of 45 through an assignment
from Kelly Temporary Services. Runyon was hired to
work as a support operator in the finishing area of the
Tenter II plant. Extrusion hired Corbett in August 2005;
he worked under the same chain of command as Runyon
and had the same job title. In October 2005, both men
began reporting to Rod Ellis; Ellis in turn reported to
Don Hamilton.
Runyon had problems with his behavior on the job
from the start. In August 2005, returning from a break, he
saw co-worker Jennifer Luz-Reyes struggling to com-
plete her work and spoke sharply to her. As Luz-Reyes
reported the incident to Hamilton (and as Hamilton

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No. 09-3015 3
recorded the conversation in his notes), Runyon had
grabbed a pallet to sit on, and the pallet bumped the
broom that Luz-Reyes was using to sweep the floor.
Runyon yelled, “[G]et the f**king broom out of my way.”
A little later, when Luz-Reyes asked him not to shout,
Runyon retorted, “[Y]ou haven’t f**king heard me yell
yet.” Hamilton discussed this incident with Runyon,
who denied cussing or yelling at Luz-Reyes. He did
admit, however, that the two had words between them,
but he said that everything was now all right. After
confirming this with Luz-Reyes, Hamilton took no
further action.
In January 2006, however, Runyon was in trouble
again. On January 5, Runyon and co-worker John Willman
had a heated argument. Two other co-workers, Russ
Rutter and Jay Funkhouser, tried to calm them down,
but Runyon told Funkhouser that he was “real close to
tearing off [Willman’s] f**king head and walking out of
here,” and that he “might kick his a**.” Not amused,
Funkhouser emailed Hamilton about the incident. Hamil-
ton talked to both Runyon and Willman and prepared
another note for the record. Runyon admitted that he
told Hamilton that he was ready to quit and “lay
[Willman] out when he does.” He also blustered that he
was “ready to knock [Willman’s] head off and go outside
and wait for County” (apparently referring to the local
police).
Even this was not what prompted Runyon’s firing. On
February 15, 2006, the incident involving Runyon and
the younger (age 30) Corbett erupted. The night before,

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4 No. 09-3015
Runyon and another co-worker, Ian Gilbert, had been
working hard to keep up with production on Line 4 and
had asked for Corbett’s help. Corbett was assigned to
Line 5, which was not operating at that moment. Corbett,
along with Willman and Mark Neukom, another em-
ployee, rebuffed the request. Word of their action made
its way back to Ellis, who emailed them asking why
they had not lent a hand.
The next night, Corbett confronted Runyon and com-
plained that he, Willman, and Neukom had been written
up because of Runyon’s complaint. Runyon retorted
that Corbett had been avoiding work during the entire
evening. Later on, around 2:00 a.m., the two ran into
each other and Runyon “congratulated” Corbett on how
poorly he banded a roll of film. Corbett was angry;
obscenity-laced shouting quickly gave way to
physical fighting. Infuriated, Corbett at one point twisted
Runyon’s nipples and grabbed him by the armpits,
briefly elevating him to his tip-toes. Runyon then called
Ellis at home to let him know what had happened. Ellis
came right in to investigate, and then gave a report to
Hamilton.
Relying on Ellis’s written report, Hamilton decided to
give a Final Written Warning to Runyon and to suspend
him from work for three days. Corbett received the
same treatment. Hamilton also asked both men to write
letters of apology and to deliver them to the manage-
ment group. Because the texts of their letters figured in
Extrusion’s final decision, we set each one out here in
full. Runyon’s letter read as follows:

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No. 09-3015 5
As requested by Mr. Hamilton I am writing this
letter explaining why I should continue employment
with A.E.T.
Since my employment began at A.E.T. I have never
missed a schedule shift, or any on call’s or mandatory
over time. I have also followed our JSA’s and our
GQS. I am also committed to our statement “we will
meet or exceed our customers quality expectations.”
I love working for A.E.T. and expect to retire from
our great company. Between now and then, it is my
intention to move into other areas of the pro-
duction process and become more involved in the
production of our product.
In closing, I would like to apologise for the issue that
has occured in leading to this letter and will strive
to avoid any further conflicts with my co-workers.
Corbett’s letter took a different tack:
I would like to apologize for my actions at work on
the night of Wednesday, February 15th. My actions
were not acceptable behavior for any workplace
standards and I assure the Tenter 2 plant that this
behavior from me, will not take place in the plant
again. I reacted to a situation too quickly, without
thinking about the consequences and the way in
which my peers would view me. My desire at AET is
to be trustworthy, honest, dedicated, and hard-
working employee and I understand that my actions
on 2/15/06 are in no way a reflection of those qualities
that I bring to work each day. In the future, if faced

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6 No. 09-3015
with this type of situation again, I will walk away and
notify plant supervision of the disagreement.
I have expressed my feelings and apology in this
letter, and I hope that you consider this in deter-
mining my future at AET. I bring the above men-
tioned qualities to work each day along with atten-
tion to detail that I feel could benefit AET for years to
come. I would like to be looked upon as a leader in
my duties, and allowing me to continue my employ-
ment at AET would help this become a reality. Sorry
for my actions and please accept this sincere apology.
Thank you for your time and consideration.
After reviewing both of these letters, and taking into
account Runyon’s earlier incidents with Luz-Reyes and
Willman, Hamilton decided to terminate Runyon’s em-
ployment. He passed that recommendation up the
chain and shared the background documents with his
superiors. Believing that Corbett’s letter showed genuine
regret for the incident and a commitment to improve,
he did not recommend firing Corbett. Management
accepted Hamilton’s recommendations and fired
Runyon effective February 24, 2006.
II
Runyon filed this suit on March 6, 2007, raising a
claim under the ADEA against Extrusion and under
supplemental state theories against Corbett. As we
noted earlier, the case went to trial, but the district court
granted judgment as a matter of law in Extrusion’s favor

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No. 09-3015 7
after Runyon’s case-in-chief. See FED. R. CIV. P. 50(a). On
the same day, Runyon settled with Corbett. The court
entered judgment in Extrusion’s favor on July 16, 2009,
and Runyon filed his notice of appeal on August 12,
2009. The court did not dismiss the claim against Corbett
until August 24, 2009, and so the notice of appeal was
premature. Once the case against Corbett was resolved,
however, the notice became effective for the entire case.
See FED. R. APP. P. 4(a)(2). Appellate jurisdiction is there-
fore secure, and we may proceed to consider Runyon’s
arguments.
Runyon spends some time in his brief arguing that the
district court erred by applying a different standard to
Extrusion’s summary judgment motion than it did to the
Rule 50(a) motion. That argument gets him nowhere,
for several reasons. First, our review for either type of
motion is de novo, and so it really does not matter
whether the district court was correct the first time or the
second time. See Appelbaum v. Milwaukee Metro. Sewerage
Dist., 340 F.3d 573, 578-79 (7th Cir. 2003). Once trial
began, the only question was whether Runyon had put
enough evidence before the jury to permit it to decide
in his favor. To the extent that Runyon is arguing that
the district court was not free to change its mind after
it ruled on the summary judgment motion, he is mis-
taken. Doctrines such as “law of the case” do not prohibit
the trial judge from revisiting an earlier ruling while
there is still time to prevent error. See, e.g., Abel v. Dubberly,
210 F.3d 1334, 1337-38 (11th Cir. 2000) (holding that the
“law of the case” does not bar the district court from
granting judgment as a matter of law after having denied

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8 No. 09-3015
summary judgment earlier); St. Louis Convention &
Visitors Comm’n v. National Football League, 154 F.3d 851, 860
(8th Cir. 1998) (same); Sagendorf-Teal v. County of Rensselaer,
100 F.3d 270, 277 (2d Cir. 1996) (same). Furthermore, as
the district court pointed out, between the time it ruled
on the first and second motion, the Supreme Court
handed down its decision in Gross, 129 S. Ct. 2343, which
at a minimum clarified the legal standards for finding
liability under the ADEA. Although in a strict sense
Gross had little effect on Runyon’s case, because
he was not trying to assert that Extrusion had acted
with mixed motives, the district court was entitled to
take advantage of more general insights from Gross
when it considered the second motion.
The second misstep Runyon makes is to analyze this
case using the indirect method of proof first outlined by
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as
if we were reviewing a ruling on summary judgment.
Runyon had a chance to present his full case-in-chief at
the trial. By that time, the McDonnell Douglas sequence
of steps falls away, and we are left only with the ques-
tion whether the plaintiff presented enough evidence to
allow a rational jury to rule in his favor—here, to con-
clude that Extrusion’s real reason for firing him was his
age, not his repeated dust-ups with his co-workers. See
Greene v. Potter, 557 F.3d 765, 769 n.1 (7th Cir. 2009);
Massey v. Blue Cross-Blue Shield of Illinois, 226 F.3d 922, 925
(7th Cir. 2000); see generally Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000); Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248 (1981).

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No. 09-3015 9
Runyon believes that a jury could find that age was
the real reason for his dismissal, because (the jury might
think) age was the only thing that distinguished him
from Corbett. In many respects, Corbett and Runyon are
similarly situated. Both had the same job, for approxi-
mately the same time, and both reported to the same
supervisors. But no jury could fail to see the differences.
Neither Runyon nor Corbett was scoring particularly
well in the category “cooperation with others” on
company evaluation forms: Runyon got a 4 out of 10 at
his 120-day review, and Corbett also got a 4 out of 10.
But, unlike Runyon, there is no evidence that Corbett
was engaged in his third major conflict with a co-worker
in six months or so. Before the February 15 incident,
Corbett’s record showed only a few minor problems
getting along with co-workers, and it noted that this had
improved. Runyon wanted the district court to admit
evidence of a negative evaluation Corbett received
six months after the fight that led to Runyon’s firing,
but the court reasonably decided to exclude it because
hindsight is irrelevant.
Runyon also tries to fit this case into the group of
those where the jury would refuse to believe the em-
ployer because of the latter’s shifting and inconsistent ex-
planations. But the evidence does not support that
charge. Extrusion explained at trial that Runyon was
fired primarily because he was involved in three alter-
cations. This is consistent with earlier statements from
company officials. Hamilton told Runyon that he was
losing his job because he did not fit in. The personnel
records show that Runyon was fired for creating a
hostile work environment, which seems like a reasonable-

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10 No. 09-3015
enough way to describe his effect on his co-workers.
Hamilton also mentioned at trial that Runyon’s failure
to accept responsibility for his actions in his apology
letter played a part in the decision. That is not so much
a shift in explanation as an indication that Extrusion
had reason to believe that the problems it was ex-
periencing with Runyon were not likely to go away.
Cf. Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 578-79
(7th Cir. 2003).
III
Extrusion also notes that Runyon was replaced by a 44-
year-old man, just two years younger than Runyon,
and that Runyon was fired by the same person (Hamilton)
who hired the replacement. The Supreme Court has
observed that if an employee who is in the class pro-
tected by the ADEA is replaced by someone who is not
“substantially younger” (i.e., ten years or so), no inference
of age discrimination is generally appropriate. O’Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13
(1996). Runyon is unimpressed by Extrusion’s action,
because, as he points out, the company did not replace
him until it knew that he was charging it with age dis-
crimination. At best, however, this means that Extru-
sion cannot use the age of the replacement as evidence
tending to refute discrimination. It does nothing to
help Runyon carry his burden of proving that Extrusion
acted for unlawful reasons.
In the final analysis, Runyon’s case boiled down to the
proposition that he and Corbett were both undesirable

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No. 09-3015 11
employees, but that Extrusion fired only the older of
the two. He has no other evidence tending to show that
Extrusion would have retained him if he had been the
younger of the two. It is important to recall that it was
Runyon’s burden to show that age was the real reason
for his firing, not Extrusion’s burden to show that it
was not. Gross, 129 S. Ct. at 2351-52. The district court
correctly found that Runyon did not present enough
evidence to reach the jury on that central question.
We therefore AFFIRM the judgment of the district court.
8-30-10

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