Milos Torbica v. Horizon Bank

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 6, 2024
Decided August 14, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-3302
MILOS TORBICA,
Plaintiff-Appellant,
v.
HORIZON BANK,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:22-CV-20 DRL-MGG
Damon R. Leichty,
Judge.
O R D E R
Milos Torbica contends that his former employer, Horizon Bank, discharged him
because of his age in violation of the Age Discrimination in Employment Act. 29 U.S.C.
§§ 621–34. The district court entered summary judgment for Horizon. Because Torbica
has not provided evidence that could reasonably persuade a jury that his age was the
“but-for” cause of his discharge, we affirm.
We construe all facts in the light most favorable to Torbica, the nonmoving party.
Martino v. MCI Commc’ns Servs., Inc., 574 F.3d 447, 449–50 (7th Cir. 2009). Horizon hired
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 5 --

No. 23-3302 Page 2
Torbica in 2014 to manage and supervise its mortgage loan originators in Indiana, from
LaPorte County to Indianapolis. The bank hired two more managers in the following
years: Mary Kay Gaboyan in 2015, who took over “the northeastern portion of Indiana,”
and Larry Simmons in 2018, who managed the Indianapolis area, where he had
connections. Torbica continued to manage LaPorte and Lake Counties. Keene Taylor,
the three managers’ then-supervisor, set their compensation structures and paid Torbica
less than the other two.
In 2019, Taylor retired, and Noe Najera began to supervise the three managers.
Torbica asserts (and Najera denies) that Najera treated him poorly: Najera
“consistently” asked Torbica when he was planning to retire, and he communicated
more regularly with the other two managers.
Each manager received mid-year and annual performance evaluations. Torbica
was rated “Meets Expectations” in 2018, 2019, and 2020. Gaboyan received “Meets
Expectations” in 2018 and early 2019, and “Exceeds Expectations” later in 2019 and on
both evaluations in 2020. Simmons received “Exceeds Expectations” on both reviews in
2020.
In the summer of 2020, during the COVID-19 pandemic, Najera considered
reducing Horizon’s number of loan origination managers to cut costs. He considered
each manager’s regions, potential cost savings, performance, and who could grow the
market. Najera worked with Jim Neff, president of Horizon, to create a spreadsheet
with information about the managers, including salary, performance rating, number of
reports, age, gender, and minority status.
In October 2020, during the fall budgeting process, Najera suggested discharging
Torbica. Najera wanted to retain Simmons because of his connections in Indianapolis
and that market’s growth potential. And Najera noted that Torbica had weaker
performance, recruitment, and production than Gaboyan. Najera made his
recommendation to Neff, the Vice President, and the Chief Executive Officer, who
collectively approved and finalized it. Torbica’s position was eliminated in early 2021.
At the time, Torbica was 61 years old; Gaboyan was 55; Simmons was 53. Gaboyan
absorbed Torbica’s responsibilities.
Torbica then sued Horizon, alleging that the bank discharged him because of his
age; his other contentions are abandoned on appeal. The district court entered summary
judgment for Horizon, reasoning that the evidence was insufficient for a jury to find age
discrimination.

-- 2 of 5 --

No. 23-3302 Page 3
We review summary judgment de novo. Martino, 574 F.3d at 449–50. Because of
his age, 61, Torbica is in the protected class of workers 40 years or older. 29 U.S.C.
§ 631(a). To stave off summary judgment, he had to present evidence sufficient to
persuade a rational jury that his “age was the ‘but-for’ cause” of his being discharged.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). “[I]t’s not enough to show that
age was a motivating factor. The plaintiff must prove that, but for his age, the adverse
action would not have occurred.” McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360,
367 (7th Cir. 2019) (citation omitted). On appeal, Torbica argues that he did so and that
the district court improperly “broke the evidence apart rather than consider it
together.”
The legal standard used to evaluate a discrimination claim ‘is simply whether the
evidence,’ considered as a whole, ‘would permit a reasonable factfinder to conclude
that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the
discharge or other adverse employment action.’” Abrego v. Wilkie, 907 F.3d 1004, 1012
(7th Cir. 2018), quoting Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).
We have sometimes referred to the McDonnell Douglas burden-shifting
framework as an “indirect” way of proving up discrimination. Ortiz, 834 F.3 766; see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973). Under this method, Torbica’s
initial burden is light: He need only show that he is in the protected class, he met
Horizon’s legitimate expectations, he was discharged, and he was treated less favorably
than those outside the protected class. Martino, 574 F.3d at 452. If he does, then Horizon
must furnish a legitimate reason for the discharge, and if Horizon does, then Torbica
must adduce evidence that the reason is pretextual. Id. at 453. Under any standard of
proof, Torbica’s evidence must permit a reasonable inference that age was the “but-for”
cause of his discharge, Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 603–04 (7th Cir. 2012),
and it does not.
Torbica lacks sufficient evidence to show that age motivated the bank’s decision
to discharge Torbica, let alone that it was the “but-for” factor. He relies on four facts:
Najera inquired into when Torbica planned to retire; Najera wrote the managers’ ages
on the spreadsheet when considering whom to discharge; he paid Simmons and
Gaboyan more than Torbica during their joint employment; and he began thinking
about a reduction in force in the summer of 2020, before the fall’s budgeting process.
These four facts, considered individually or collectively, do not reasonably
suggest an age bias. First, a manager who asks an employee “if he considered
retirement” does not suggest “a desire to remove [the employee] because of his age”

-- 3 of 5 --

No. 23-3302 Page 4
when the undisputed facts present an innocuous explanation for the inquiry.
See, e.g., Fleishman, 698 F.3d at 605–06. Najera was entitled to assess the prospective
longevity of the staff he inherited, particularly when the pandemic might induce
employees to retire voluntarily. See id. Second, Najera’s spreadsheet—which included
the managers’ ages, among other demographic data—shows only that Najera knew
their ages. But mere knowledge of an employee’s age does not create an inference of
discrimination, Gustovich v. AT&T Commc’ns, Inc., 972 F.2d 845, 849 (7th Cir. 1992), and
employers might include this type of information for any number of innocent reasons
(including a desire to avoid liability for age discrimination, see Courtney v. Biosound, Inc.,
42 F.3d 414, 420 (7th Cir. 1994)). Third, Najera’s predecessor set the compensation
structures that favored Gaboyan and Simmons, and Torbica only speculates that Najera
maintained these structures out of bias. Finally, Najera’s consideration of a reduction in
force in summer 2020, rather than the fall, does not evince age bias; it merely shows that
Najera was considering cost-cutting measures to benefit Horizon sooner rather than
later.
Even if the above evidence might persuade a reasonable jury that age was a
motivating factor in Torbica’s discharge, Torbica must lose unless he can show that, if
not for his age, Horizon would not have discharged him. See Schuster v. Lucent Techs.,
Inc., 327 F.3d 569, 579 (7th Cir. 2003). He has not: Horizon provided unrebutted
evidence that legitimate reasons independent of age led it to discharge Torbica instead of
the two other managers.
It is undisputed that Horizon reduced its workforce to save labor costs, and that
Najera determined whose position to terminate based on performance and growth
potential. Cost-cutting, performance, and business growth are all age-neutral factors.
See id. at 578 (affirming summary judgment on age-discrimination claim where
company reduced staff to cut costs and attract investors and selected who to discharge
based on performance). Torbica fared worse on these factors because his past
performance was weakest and he did not have Simmons’s business contacts.
Furthermore, Torbica has not supplied evidence suggesting that Gaboyan’s
slightly younger age (55) mattered to Horizon. Because the age disparity between
Torbica and Gaboyan is less than 10 years, it does not presumptively create an inference
of age discrimination. Pitasi v. Gartner Grp., Inc., 184 F.3d 709, 717 (7th Cir. 1999). To
show that there is a genuine issue of material fact, Torbica had to provide evidence
showing that this six-year disparity was significant to Horizon, see Hartley v. Wis. Bell,
Inc., 124 F.3d 887, 893 (7th Cir. 1997), and he has not.

-- 4 of 5 --

No. 23-3302 Page 5
Torbica replies that Horizon’s reasons of cost-cutting, performance, and business
contacts are not genuine. He argues that Horizon’s rationale for discharging him shifted
from a “reduction in force” to his performance, and this shift suggests pretext. But these
explanations are compatible: It can be true both that Horizon wanted to reduce costs
and that the managers’ performance reviews influenced the decision of whom to
discharge. See Martino, 574 F.3d at 451 (no age discrimination where employer selected
plaintiff for reduction-in-force based on his performance). Torbica also argues that he
deserved a rating of “Far Exceeds Expectations” in mid-2020, but he does not back up
this argument with evidence suggesting that Najera down-rated his work while
up-rating equivalent work completed by the other two managers. See Pitasi, 184 F.3d at
718. Finally, Torbica argues that Simmons did not have robust contacts in Indianapolis
because he had recently lived on the east coast. But even if this is true, it suggests only
that Horizon’s rationale was mistaken, not insincere or pretextual. Brooks v. Avancez,
39 F.4th 424, 435–36 (7th Cir. 2022). Thus, because Torbica lacks evidence that Horizon
“did not honestly believe” that Simmons and Gaboyan were of higher value to the
company than Torbica, Horizon supplied unrebutted, legitimate reasons for retaining
those two over Torbica. Pitasi, 184 F.3d at 718.
AFFIRMED

-- 5 of 5 --