Cory B. Lange v. Anchor Glass Container Corporation

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 6, 2023
Decided July 11, 2023
Before
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-2902
CORY B. LANGE,
Plaintiff-Appellant,
v.
ANCHOR GLASS CONTAINER
CORPORATION,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, New Albany Division.
No. 4:20-cv-160-RLM-DML
Robert L. Miller, Jr.,
Judge.
O R D E R
Cory Lange, an African-American man, sued Anchor Glass Container
Corporation (“Anchor Glass”) after it declined to hire him. He alleged that the decision
was racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2(a)(1). The district court entered summary judgment for Anchor Glass. Because
a reasonable jury could find that Anchor Glass’s shifting and inconsistent statements
were pretext for a discriminatory hiring decision, we vacate the judgment and remand
for further proceedings.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-2902 Page 2
We recount the facts in the light most favorable to Lange, drawing reasonable
inferences in his favor. Runkel v. City of Springfield, 51 F.4th 736, 741 (7th Cir. 2022). In
2018, Lange applied for an entry-level “selector packer” position with Anchor Glass, a
manufacturer of glass packaging products. In this hiring cycle, Anchor Glass
interviewed ten people, and a panel of three managers rated Lange among the top four
candidates. Afterward, Human Resources Specialist Katie Petty, the sole hiring
authority, conducted a telephone interview with Lange because she did not attend his
in-person interview. During the call, Lange voluntarily disclosed a felony drug-dealing
conviction. (At that time, the written application did not ask candidates to disclose
criminal convictions). Eventually, Petty informed Lange that he was not hired. The
three candidates she did hire were white men.
Lange filed a charge with the Equal Employment Opportunity Commission,
alleging race-based discrimination because the company employed at least one white
man with a prior criminal conviction. In its position statement responding to the charge,
Anchor Glass stated that Lange was less qualified than the hired workers, “due in part
to [his] criminal conviction for dealing narcotics.” Anchor Glass also noted that Petty
did not attend any of the interviews during the hiring cycle because she had been out of
the office. Finally, Anchor Glass stated that, while investigating the EEOC charge, it
discovered that Lange had made a material misrepresentation on his application: failing
to disclose his previous employment with the company.
The EEOC made a probable cause finding in Lange’s favor and issued a right-to-
sue notice. Lange sued Anchor Glass for race-based discrimination under the Indiana
Civil Rights Act, Ind. Code §§ 22-9-1-1 to 18, and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2(a)(1).
During discovery, several apparent factual inconsistencies arose. In his
deposition, Lange testified about his phone interview with Petty. He stated that he had
disclosed his drug-dealing conviction and mentioned that he had worked at Anchor
Glass for about a month 14 years earlier—through a temp agency, he believed.
According to Lange, Petty suggested that his conviction would be an issue, and he
replied that he knew of other people with felony convictions working for Anchor Glass.
Anchor Glass moved for summary judgment. In a declaration, Petty, for the first
time, stated that she had already decided to hire the other three candidates before
Lange’s in-person interview with the hiring panel. In an apparent contradiction of the
company’s EEOC position statement, she also swore that she was present for a
“majority” of the interviews, though she admittedly did not complete applicant

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No. 22-2902 Page 3
evaluation forms or otherwise take interview notes. Petty also asserted that, after Lange
disclosed his drug conviction on the phone with her, he made inappropriate comments
that he would “do it all again” but ensure that he was not dealing with an undercover
officer. Petty attested that she decided not to hire Lange based on this statement and her
later realization that Lange did not note on his application that he had previously
worked for Anchor Glass.
Petty was later deposed. Although she was the only human resources
professional in the facility, Petty testified that she was unaware of Lange’s EEOC charge
and had not reviewed the company’s EEOC position statement. Petty testified that as
the sole hiring authority, she went with her “gut” not to hire Lange based on her belief
that he could not advance within the company. Petty also testified, however, that she
usually came to an agreement with the interviewers about hiring decisions and had
consulted with the plant manager about Lange’s criminal history. She reiterated that
Lange told her on the phone that he would deal drugs again, just not to an undercover
officer. Contrary to her declaration, she testified that two of the three selected applicants
were interviewed the day after Lange’s panel interview.
Lange responded to Anchor Glass’s motion, highlighting how Anchor Glass’s
reasons for not hiring him had shifted repeatedly. In his own declaration, Lange denied
making the alleged comments to Petty suggesting he would commit the crime again if
he would not get caught.
The district court granted Anchor Glass’s motion for summary judgment. The
court explained that none of the other hired employees who interviewed at the same
time as Lange had disclosed a criminal conviction or made a material misrepresentation
on their applications. Applying the McDonnell Douglas burden-shifting method, the
court concluded that Anchor Glass’s “expansion of reasons” for not hiring Lange did
not support an inference of racial discrimination. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–04 (1973).
On appeal, Lange primarily contends that Anchor Glass’s changing and
inconsistent reasons for not hiring him raise genuine issues of material fact about
whether Anchor Glass declined to hire him because of his race. Indiana courts construe
the state’s antidiscrimination statute consistent with Title VII. Ind. C.R. Comm'n v.
Marion Cnty. Sheriff's Dep't, 644 N.E.2d 913, 915 (Ind. Ct. App. 1994). Thus, we do not
distinguish between Lange’s two claims here.

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No. 22-2902 Page 4
In employment-discrimination cases, the overarching question “is simply
whether the evidence would permit a reasonable factfinder to conclude that the
plaintiff’s race” caused the adverse employment action. Ortiz v. Werner Enters., Inc.,
834 F.3d 760, 765 (7th Cir. 2016). And “an employer’s dishonest explanation of a
decision can support an inference that its real reason was unlawful.” Runkel, 51 F.4th
at 745. The question is not whether the employer’s plausible, nondiscriminatory reasons
might have been sufficient to justify the decision, but whether they were truly the
reasons for that decision. Id. (citing Joll v. Valparaiso Cmty. Schs., 953 F.3d 923, 932 (7th
Cir. 2020)).
The numerous inconsistencies in the evidence supporting Anchor Glass’s
proffered nondiscriminatory reasons for not hiring Lange would permit a reasonable
jury to infer that they are pretext for racial discrimination. A jury may reasonably infer
pretext from “flagrant” inconsistencies in an employer’s proffered nondiscriminatory
reasons for an employment action. Baker v. Macon Res., Inc., 750 F.3d 674, 677 (7th Cir.
2014). Anchor Glass has provided multiple reasons for not hiring Lange, each
introduced at a different time. First, in its EEOC position statement, Anchor Glass
asserted that its nondiscriminatory reason for not hiring Lange was his criminal record.
Second, after Lange filed suit, Petty declared and testified at her deposition that she
primarily based her decision on Lange’s statements about his willingness to repeat his
crimes. Finally, in its motion for summary judgment, Anchor Glass cited as its reason
Lange omitting his previous employment with the company. Each of these justifications
is contradicted by Anchor Glass’s own evidence.
In her declaration submitted shortly after Lange’s deposition, for example, Petty
swore that she did not learn about either his criminal conviction or his previous work at
Anchor Glass until after she already decided to hire the three white candidates. Thus, at
a minimum, there appear to be factual disputes underlying Anchor Glass’s current
argument that Petty’s realization about the misrepresentation prevented Lange’s hire.
In its appellate brief, Anchor Glass now maintains that Lange’s criminal history
was not a consideration in the employment decision. Instead, the company contends
that Lange was not hired because of his “inappropriate” comments about dealing drugs
and his failure to disclose his previous employment at the company. But there is
evidence that neither of these proffered reasons is genuine, which allows an inference of
intentional discrimination. Runkel, 51 F. 4th at 745. Anchor Glass provided both these
reasons only after it retreated from its initial position that Lange’s criminal background
made him a less qualified candidate.

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No. 22-2902 Page 5
The “inappropriate remark” reasoning is a non-starter at the summary judgment
stage. There is competing testimony about whether Lange made any such remark. It
therefore cannot be accepted as a legitimate, nondiscriminatory reason. However, the
fact that Anchor Glass proffered this reason at various times does figure into whether
the reasons it has now settled on are genuine or pretextual.
Finally, Lange’s misrepresentation on his application about his former
employment at Anchor Glass has also evolved in its significance over time. It has gone
from being a late explanation to, now, the only purported nondiscriminatory reason
that could earn Anchor Glass summary judgment based on this record. We may
consider an employer’s “after-the-fact rationalization” of a decision as support for an
inference that its real reason was unlawful. See Runkel, 51 F.4th at 745. Here, Anchor
Glass reported to the EEOC that, before it investigated the charge, it was unaware of
Lange’s prior experience at the company. And Petty attested that she did not learn
about the misrepresentation until after she interviewed Lange— but she swears that, by
then, she had already made her hiring decision. Thus, a jury would not have to accept
that Lange’s omission is the company’s sincere reason for rejecting Lange. See Joll, 953
F.3d at 933. (And even regarding this reason, Lange has explained that he did not
believe he worked “for” Anchor Glass previously.)
Because the evidence must be considered as a whole, see id., Lange identifies
enough inconsistencies in Anchor Glass’s explanations about its reasons for not hiring
him to survive summary judgment. Petty’s reasons for not hiring Lange, or whether she
ever considered hiring him, are material facts that remain in dispute, and the
differences between her testimony and the company’s EEOC position statement have
not been resolved.
Therefore, we VACATE the district court's grant of summary judgment, and we
REMAND for further proceedings consistent with this order.

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