Judges: Flaum
Filed: Oct. 10, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-1338 JOHN W. MULLIN, II, Plaintiff-Appellant, v. TEMCO MACHINERY, INC., Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cv-00941-TWP-DML — Tanya Walton Pratt, Judge. _ ARGUED SEPTEMBER 20, 2013 — DECIDED OCTOBER 10, 2013 _ Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit Judges. FLAUM, Circuit Judge. John Mullin, II, brought suit al
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-1338 JOHN W. MULLIN, II, Plaintiff-Appellant, v. TEMCO MACHINERY, INC., Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cv-00941-TWP-DML — Tanya Walton Pratt, Judge. _ ARGUED SEPTEMBER 20, 2013 — DECIDED OCTOBER 10, 2013 _ Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit Judges. FLAUM, Circuit Judge. John Mullin, II, brought suit all..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1338
JOHN W. MULLIN, II,
Plaintiff‐Appellant,
v.
TEMCO MACHINERY, INC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:11‐cv‐00941‐TWP‐DML — Tanya Walton Pratt, Judge.
____________________
ARGUED SEPTEMBER 20, 2013 — DECIDED OCTOBER 10, 2013
____________________
Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
FLAUM, Circuit Judge. John Mullin, II, brought suit
alleging that he was fired because of his age, in violation of
the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621 et seq. He was an employee with an allegedly
less than sterling performance as a follower of corporate
policy. He was also the oldest—and most profitable—
salesman for a company that sells fire trucks and other
2 No. 13‐1338
rescue equipment, Temco Machinery, Inc. After Temco fired
the fifty‐six year old Mullin, it quickly hired two
inexperienced salesmen in their twenties. Mullin brought
suit, and the district court granted summary judgment to
Temco. For the following reasons, we reverse and remand.
I. Background
In 1990, Mullin, then age thirty‐six, began working for
Midwest Fire & Safety as a salesman. Midwest Fire & Safety
was the authorized dealer in Indiana for Pierce
Manufacturing, which makes custom fire trucks and other
rescue equipment. In 2006, Temco purchased Midwest Fire
& Safety and retained its sales staff, including Mullin, then
age fifty‐two. As a sales associate, Mullin’s responsibilities
included selling fire trucks, traveling throughout his
assigned territory (portions of central and southern Indiana),
building client relationships, and participating at
conventions and fire department activities. Most of Temco’s
salesmen are over the age of forty because the job requires
in‐depth knowledge of the industry and its products. During
Mullin’s tenure at the company, Temco typically employed
between four and six sales associates in Indiana.
Mullin handled approximately 250 client accounts for
Temco. In 2006 or 2007, the CEO of Temco, Michael Mikoola,
took one account away from Mullin in response to criticism
by a fire chief. In both 2008 and 2009, Mullin won Temco’s
Salesman of the Year Award. Temco presents this annual
award to the sales associate who sold the most fire trucks
during the company’s preceding fiscal year. In 2008, Mullin
sold six fire trucks, and the other three Indiana salesmen
sold four, two, and two fire trucks, respectively. Mullin’s
2008 sales represented 42% of the total number of fire trucks
No. 13‐1338 3
sold in Indiana and generated 56% of the total profit. In
2009, Mullin sold eight fire trucks, and his three colleagues
sold seven, four, and one fire truck, respectively. Mullin’s
2009 sales represented 40% of the total number of fire trucks
sold in Indiana and generated 52% of the total profit.
In November 2009, Temco hired an experienced
manager, Ronald Baylog, as Vice President and General
Manager of the Indiana sales division. The Indiana sales
force was not meeting Temco’s and Pierce’s expectations, a
fact that was relayed to the salesmen. Temco’s executives
directed Baylog to evaluate and manage the Indiana sales
division. They hoped Baylog would improve performance,
and they sought his assessments and recommendations.
Baylog became Mullin’s immediate supervisor, a role he
occupied through the date of Mullin’s firing.1
Baylog implemented three new policies for the Indiana
sales division. He required the sales staff, including Mullin,
to (1) complete and submit weekly contact/call reports in
order to track potential customers; (2) attend and participate
in weekly Monday morning sales meetings; and (3) help
classify customers into higher‐ and lower‐value targets, and
call on them afterward. As detailed below, the parties have
quite different accounts of Mullin’s compliance with these
new policies.
The month of May 2010 is important to this case. On May
5, 2010, Temco fired an Indiana sales associate, Michael
Orrico, who was in his fifties. On the same day, Temco hired
1
Baylog no longer works at Temco. He voluntarily retired on
December 31, 2010.
4 No. 13‐1338
Andrew Wolka, then twenty‐four years old, and told Wolka
not to report to work until May 14, 2010. Around the same
time, it also hired Matthew Timmer, then age twenty‐nine.
On May 13, Mullin was fired. Temco’s CEO, Mikoola, told
Mullin he was being fired because “[w]e are paying you too
much for your sales.”
On May 14, the next day, Andrew Wolka and Matthew
Timmer attended the Pierce Sales Meeting in Appleton,
Wisconsin on Temco’s behalf. Mullin had been scheduled to
attend this annual meeting. Wolka and Timmer both
officially started working for Temco on May 24, 2010; Wolka
began as a full‐time sales associate in Indiana, and Timmer
as a part‐time sales associate in Indiana because he was also
a fireman. Wolka’s and Timmer’s contractual responsibilities
were the same as Mullin’s had been. Neither Wolka nor
Timmer had any experience selling fire trucks, as Mikoola
and Baylog both acknowledged in depositions.2
On November 8, 2010, Mullin filed a charge of age
discrimination with the Equal Employment Opportunity
Commission (EEOC), alleging that he was terminated
because of his age. On November 30, 2010, Temco submitted
a position paper to the EEOC, stating that Mullin was fired
for lack of performance. Temco alleged that Mullin’s sales
performance had declined; that Mullin refused to make sales
calls or call on accounts, despite instructions by his superiors
2 For instance, Baylog said of Wolka, “he was very green and had no
knowledge of our products or no knowledge of really how to work a
territory.” Similarly, Baylog said of Timmer, “he’s a young guy, didn’t
have any experience.”
No. 13‐1338 5
to do so; and that Mullin used his Temco email account “to
communicate with a representative of a competing company
concerning matters that were inappropriate” for someone in
his position. After the EEOC issued Mullin a right to sue
letter, he filed suit in the U.S. District Court for the Southern
District of Indiana.
In several depositions, Temco executives offered the
following characterizations of the events at issue in this case.
Baylog asserted that he was “absolutely” “disappointed”
when Mullin allegedly failed to attend two events that he
was supposed to. These events were hosted by “good
customers” (specifically, Wayne Township Fire Department
and Speedway Fire Department). Mullin contests these
allegations, stating that he never received an invitation to
one event and that he in fact attended the other, which
multiple other individuals confirmed. Baylog also alleged
that Mullin failed to complete his contact/call reports in a
timely fashion, did not consistently attend Monday morning
meetings, and more generally underperformed and lacked
organizational skills.
Temco CEO Mikoola also expressed dissatisfaction with
Mullin’s performance, including certain sales that Mikoola
felt Mullin had lost. When Mikoola was asked when he
decided to fire Mullin, he explained that a particular incident
was “the straw that broke the camel’s back.” A client, the
Westfield Fire Department, had sent representatives to visit
a factory, and Mullin was responsible for leading the factory
visit. According to Mikoola, Mullin simply “didn’t show up”
to work, which left the client “looking for him” at the
factory. “I heard later John [Mullin] got sick or something,
but didn’t call anybody or tell anybody. It was rather a
6 No. 13‐1338
pretty substantial embarrassment for us,” Mikoola said.
According to Mullin, though, this serious allegation is
entirely inaccurate. Three Westfield Fire Department
employees all testified that Mullin was with them the entire
time and did a good job of showing them around the factory.
Finally, when asked about the twenty‐four year old
Wolka, Mikoola testified as follows.
Q: What were Mr. Wolka’s strengths?
A: Well, he was a young individual, to put it
mildly, very, very inexperienced. But he was a
pleasant person, promised us—or I should say
made some claims that he would do an
aggressive job, and get out there and drive a
demo. He acquired a CDL, Commercial
Driver’s License, to drive the demos. And, you
know, so we, you know, our thought process
on him was he was a young guy, give him a
shot [to] drive around the state showing fire
trucks and learn the business.
Q: … What were Mr. Wolka’s weaknesses?
A: Well, his youth, and the gist, he didn’t want
to—the time commitment, he wasn’t willing to
put the time in to do what needed to be done.
He had another interests [sic], to put it mildly.
Ultimately, Temco moved for summary judgment, which
the district court granted. The district court rejected Mullin’s
allegation that Temco had provided shifting and inconsistent
explanations for his firing—explanations that Mullin
claimed were pretextual. The court concluded that Temco
had legitimate reasons to be unsatisfied with Mullin’s
No. 13‐1338 7
performance and allegedly uncooperative nature. Mullin
timely appealed.
II. Discussion
Mullin challenges the district court’s entry of summary
judgment. We review the district court’s decision de novo,
construing all facts and drawing reasonable inferences in the
light most favorable to Mullin, the non‐moving party. Good
v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 673 (7th Cir. 2012).
Summary judgment is appropriate if there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56; Fleishman
v. Continental Cas. Co., 698 F.3d 598, 603 (7th Cir. 2012).
Mullin contends that Temco fired him because of his age,
in violation of the ADEA. The ADEA prohibits an employer
from “discharg[ing] any individual … because of such
individual’s age.” 29 U.S.C. § 623(a)(1); see also 29 U.S.C. §
631(a) (limiting protections to those over forty years old). To
establish an ADEA violation, “an employee must show that
age actually motivated the adverse employment action. Put
differently, age must have played a role in the employer’s
decision‐making process and had a determinative influence
on the outcome.” Van Antwerp v. City of Peoria, Ill., 627 F.3d
295, 297 (7th Cir. 2010) (citations omitted).
We have previously explained that an employee may
prove discrimination through the direct or indirect methods
of proof. Fleishman, 698 F.3d at 603. Mullin has pursued the
direct method, which itself can be proved through direct
evidence or circumstantial evidence. Direct evidence
requires that the employer admit its discriminatory intent
(e.g., the “smoking gun” case). Id. The far more common
8 No. 13‐1338
case relies on circumstantial evidence, which “allows the
trier of fact ‘to infer intentional discrimination by the
decisionmaker.’” Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.
2012) (quoting Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712,
720 (7th Cir. 2005)). Circumstantial evidence typically
includes “(1) suspicious timing, ambiguous oral or written
statements, or behavior toward or comments directed at
other employees in the protected group; (2) evidence,
whether or not rigorously statistical, that similarly situated
employees outside the protected class received
systematically better treatment; and (3) evidence that the
employee was qualified for the job in question but was
passed over in favor of a person outside the protected class
and the employer’s reason is a pretext for discrimination.”
Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 812 (7th Cir.
2007). Circumstantial evidence “must point directly to a
discriminatory reason for the employer’s action.” Van
Antwerp, 627 F.3d at 298 (citation and internal quotation
marks omitted). At bottom, as we have recently emphasized,
a plaintiff seeking to survive summary judgment must
produce enough evidence that a rational jury could conclude
that the employer took the adverse action against the
plaintiff because he is a member of a protected class.3
3 See, e.g., Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir.
2013) (citing, inter alia, Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir.
2012) (Wood, J., concurring) (“In order to defeat summary judgment, the
plaintiff one way or the other must present evidence that she is in a class
protected by the statute, that she suffered the requisite adverse action
(depending on her theory), and that a rational jury could conclude that
the employer took that adverse action on account of her protected class,
not for any noninvidious reason.”)).
No. 13‐1338 9
Applying these principles, a reasonable jury could
conclude that Temco fired Mullin because of his age. Mullin
has put forth ample circumstantial evidence, including
examples of suspicious timing and ambiguous statements.
Moreover, each of Temco’s alleged reasons for firing Mullin
is either genuinely contested, seemingly inaccurate, or both.
Mullin’s first piece of circumstantial evidence is the
suspicious timing of Temco’s personnel changes. On May 5,
2010, Temco fired one of Mullin’s fellow salesmen, Michael
Orrico, who was in his fifties. On the same day, the company
hired a twenty‐four year old, Wolka, but told him not to
report to work until May 14. Around this time, Temco also
hired a twenty‐nine year old, Timmer. On May 13, the
company fired the fifty‐six year old Mullin. The next day,
Wolka and Timmer represented Temco at Pierce’s annual
meeting, filling the position that Mullin would have held.
Soon after, both men officially went on Temco’s payroll. Of
course, companies must be able to fire and hire employees.
But in this case, a highly experienced and relatively
successful salesman was fired at precisely the time the
company hired two “very inexperienced” men who had
never been in sales.
The immediate temporal connection between these
personnel decisions is of the sort that has previously raised
some concern. For example, in Filar v. Board of Education of
Chicago, 526 F.3d 1054 (7th Cir. 2008), a school experienced a
funding shortfall and needed to demote one teacher. The
principal then engaged in “a flurry of personnel decisions,”
quickly promoting every teacher except the sixty‐nine year
old plaintiff. Id. at 1058. The plaintiff thereby became the
“least senior” teacher and was demoted, even though she
10 No. 13‐1338
was more qualified than some of her colleagues. Id. The
court found “the timing of [the principal’s] decisions” one
factor in its decision to reverse summary judgment and
remand for trial. Id. at 1064; see also Piraino v. Int’l Orientation
Res., Inc., 84 F.3d 270, 274‐75 (7th Cir. 1996) (promulgating
maternal leave policy immediately after employee
mentioned she was pregnant). As in Filar, we are potentially
troubled by a flurry of personnel changes that operate to the
detriment of a much older, more qualified employee.
The hiring of Wolka and Timmer is arguably more
suspicious given that Temco went to great lengths to
emphasize how “old” its employees are. For instance, Baylog
testified that Mullin was “at the age where he should have
been in his prime … . [I]t’s the best time in a salesperson’s
life [—] between say 45 and 65 is their most productive
years. Those are the people you search out and try to hire.”
Yet immediately after firing Mullin (and another man in his
fifties), Temco hired two men in their twenties who were
“very, very inexperienced.” The district court described
these developments as “potentially suspicious.” And after
Temco described Mullin’s firing as a financial decision, it
was certainly unusual to hire two people with no experience
for nearly the same compensation as the reigning two‐time
Salesman of the Year.
The next category of circumstantial evidence consists of
Mikoola’s ambiguous statements about age. The parties
dispute the importance and interpretation of Mikoola’s
references to Wolka’s age. Mikoola was asked Wolka’s
strengths and weaknesses. In his answers to both questions,
Mikoola mentioned Wolka’s youth. In addition, in the
question about Wolka’s strengths, Mikoola commented, “our
No. 13‐1338 11
thought process on him was he was a young guy, give him a
shot [to] drive around the state showing fire trucks and learn
the business.” The district court found that, in context,
Mikoola’s comments suggested that he perceived Wolka’s
age as a weakness; that is one reasonable interpretation, but
it is not the only one. Because Wolka’s youth was explicitly
part of Temco’s “thought process” in hiring him, the record
is at least ambiguous. A jury is the appropriate body to
evaluate the significance of these statements.
Next, with respect to Temco’s alleged reasons for firing
Mullin, Mullin argues that the company’s justifications are
shifting, inconsistent, and a pretext for discrimination. To
demonstrate a material issue of fact as to pretext, Mullin
must show that “either (1) it is more likely that a
discriminatory reason motivated the employer than the
proffered non‐discriminatory reason or (2) that an
employer’s explanation is not credible.” Hudson v. Chicago
Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004). A mere
mistake by an employer does not constitute pretext; instead,
pretext “is a phony excuse.” Id. Where an employer proffers
“more than one reason for the challenged action, a plaintiff
must address all of the employer’s suggested reasons.” Id.
But the court will not reexamine business decisions as a
“super‐personnel department”; instead, the important
consideration is “whether the employer gave an honest
explanation of its behavior.” Id. (citation omitted). Finally, if
the employer changes its story, that constitutes “evidence of
pretext, and entitles [the plaintiff] to a trial on the issue of
the reason for his termination.” Stalter v. Wal‐Mart Stores,
Inc., 195 F.3d 285, 291 (7th Cir. 1999) (citations omitted).
12 No. 13‐1338
Applying these concepts, each of Temco’s alleged reasons
for firing Mullin is either genuinely contested, seemingly
inaccurate, or both. Certain of Temco’s alleged reasons raise
potential credibility issues, which a jury should resolve.
Initially, Temco CEO Mikoola told Mullin that he was
being fired for financial reasons: “We are paying you too
much for your sales.” Temco did not offer to reduce Mullin’s
salary. It did hire two new employees, who had precisely the
same job description as Mullin. Neither possessed any
experience, yet one was paid $48,000 to work part‐time,
while the other was paid $42,000 to work full‐time and
handle some of the territory that Mullin had handled.
Mullin’s salary had been $56,400. If we credit Mikoola’s
explanation, Temco’s personnel decisions seem puzzling.
Baylog also suggested that Mullin was not replaced by
these two young salesmen because Temco split up Mullin’s
territory among three people: an existing salesman, a
twenty‐four year old novice (Wolka), and a sixty‐five year
old named John Erlandson. Yet according to Mikoola,
Erlandson was actually a handyman. He had never sold a
fire truck, was never on paid commission (as the company’s
salesmen were), and was not in a sales role when Mikoola
testified. Erlandson may never have actually become a sales
associate. However, Temco’s 2010 records list him as such
and note his age, sixty‐five. Indeed, before the EEOC, Temco
relied upon Erlandson’s hiring in computing the average age
of its salesmen. This may be an innocuous administrative
error, but it also might not be. Temco had just fired its oldest
sales associate. A rational jury could conclude that Temco
then sought to “even out” the ages of its salesmen and its
new hires.
No. 13‐1338 13
Another factor motivating Mullin’s firing was Baylog’s
stated view that Mullin had let down Temco and two of its
important customers by failing to attend client events.
Mullin’s contractual responsibilities included attending such
events. It was allegedly very disappointing, to Baylog and
the customer alike, when Mullin failed to attend the
Speedway Fire Department event. According to Baylog,
Mullin had planned to attend this event, but then told
Baylog that he had “accidentally turned the wrong way” on
the highway and could not make it as a result. Baylog’s
account is contested. Mullin testified that he in fact attended
this event, and three Speedway employees gave depositions
confirming his attendance.
An additional factor motivating Mullin’s firing—indeed,
the “straw that broke the camel’s back” for Mikoola—was
the “embarrass[ing]” incident in which Mullin allegedly
failed to show up to work, leaving several visitors to wander
around the plant unsupervised. That account is contested,
too. The visitors each gave depositions confirming that
Mullin was with them at all times and gave them a good
tour. The district court was correctly troubled by this
allegation, stating that it “leaned toward a ‘phony excuse.’”
Of course, a mere mistake is not pretext. Hudson, 375 F.3d at
561. But enough inaccuracies might allow a jury to make
reasonable inferences about credibility.
Lost sales also played a role in Mullin’s firing, according
to Mikoola. Lost sales are obviously significant in evaluating
a salesman, especially because fire trucks are not a high‐
volume consumer item, so each lost sale might matter a
great deal. However, Mikoola acknowledged that Temco
loses sales fairly regularly—“it is just a fact of, you know, the
14 No. 13‐1338
market.” He also said that each of Mullin’s colleagues had
lost sales, but none had been fired as a result. Furthermore,
Mullin has contested the allegation that he lost sales, arguing
that the lost sales resulted from Mikoola’s explicit directions
with respect to price. A CEO may choose to scapegoat; but
when a CEO points to conduct as the grounds for
termination, it is less credible if the employee was simply (or
allegedly) following the CEO’s instructions. Therefore, there
is a significant disputed fact on this ground, and such issues
of credibility are not resolved at summary judgment.
More generally, the company claims that Mullin
underperformed. Temco asserts that Mullin’s performance
was declining, a position Mullin contests. After leading his
colleagues in fiscal‐year 2009 and 2008 sales, Mullin was
again leading them in 2010 sales prior to his termination.
Temco discounts his Salesman of the Year Awards, arguing
that he had the “best” territory and should have sold more
fire trucks, especially compared to his allegedly
underachieving colleagues. Mullin disputes the
characterization of his territory as the most desirable market,
and this dispute is material: if Temco’s characterization is
inaccurate, it would enhance Mullin’s qualifications as
compared to his somewhat younger colleagues whom
Temco did not fire. Mullin was the oldest salesman during
his tenure at Temco.
Temco also claims that Mullin failed to submit his call
reports in a timely fashion. Mullin disputes this allegation.
Two email exchanges between Mullin and Baylog suggest
that Mullin was late on those particular occasions, but the
company’s allegations seem more wide‐ranging than that.
Temco faces an evidentiary challenge here: it claims that
No. 13‐1338 15
Mullin failed to submit his call reports promptly, yet it has
destroyed those reports. “An employer’s destruction of or
inability to produce a document, standing alone, does not
warrant an inference that the document, if produced, would
have contained information adverse to the employer’s case.”
Park v. City of Chi., 297 F.3d 606, 615 (7th Cir. 2002).
Nonetheless, Mullin correctly asserts that Temco’s
destruction of evidence deprives him of the opportunities to
demonstrate his compliance and to compare his
performance with that of his colleagues. At the summary
judgment stage, we accept Mullin’s version of the facts.4
Finally, Temco suggests that Mullin was insubordinate
for failing to attend Monday morning meetings consistently,
as Baylog required of sales associates. Mullin’s response is
three‐fold. First, Mullin testified that everyone missed these
meetings from time to time, Baylog included. Given the in‐
person nature of the industry, which requires travel, it was
inevitable that salesmen would occasionally miss Monday
morning meetings or need to reschedule them. Second, he
argues that he in fact attended these meetings, except when
he was with a customer or at the Pierce factory in Wisconsin.
Temco’s business was selling fire trucks, and certain fire
departments met on Monday mornings. If Mullin could get
on the agenda during these departments’ meetings, he—and
therefore Temco—had a better chance of selling. Third,
according to Mullin, Baylog never expressed any
dissatisfaction with Mullin’s job‐related absences or need to
4 Indeed, there is an additional disputed fact concerning whether
Temco’s records were destroyed before or after Mullin filed his charge of
discrimination with the EEOC.
16 No. 13‐1338
reschedule meetings. Thus, the parties genuinely contest the
merits of this alleged justification as well.
Mullin also contests the allegation that he communicated
inappropriately with a sales representative from another
company. Because Temco has not produced the allegedly
inappropriate email corroborating its allegation, we accept
Mullin’s argument at this stage.
Standing alone, none of these incidents, events, or
alleged justifications would likely suffice for Mullin to
survive summary judgment. In combination, however, they
point to a string of questionable conduct, from the
suspicious timing of personnel decisions to ambiguous
statements about age to multiple seemingly inaccurate
allegations. Mullin genuinely contests all of Temco’s
accusations. He has put forth sufficient evidence that the
jury should resolve the many material factual questions, as
well as the credibility issues underlying them. Of course, we
express no view on the ultimate merit of Mullin’s claims.
When, as here, the “facts are susceptible to two
interpretations,” the Supreme Court has cautioned against
granting summary judgment “too readily.” Filar, 526 F.3d at
1066 (citation and internal quotation marks omitted).
III. Conclusion
For the foregoing reasons, we REVERSE and REMAND.