On March 8, 2018, the 7th Circuit affirmed an order of summary judgment in favor the defendant in a lawsuit in which the plaintiff alleged that his former employer unlawfully discriminated against him on the basis of his age and national origin, as well as retaliated against him for complaining about a supervisor, in violation of the Age Discrimination in Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), by failing to promote him to various positions and ultimately demoting him. Skiba v. Illinois Central Railroad Company, No. 17-2002 (7th Cir. 3/8/2018). To survive a motion for summary judgment on a retaliation claim, a plaintiff must offer evidence of: (1) statutorily protected activity; (2) materially adverse job action; and (3) a causal connection between the two. The 7th Circuit concluded that the plaintiff did not engage in any statutorily protected activity when he complained about a supervisor’s harsh management style.
Statutorily protected activity requires more than simply a complaint about a work situation, no matter how unfair the situation might be, or how valid the complaint might be. To constitute statutorily protected activity, the complaint must indicate that discrimination or workplace harassment occurred because of sex, race, national origin, or some other protected class. Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing sufficient facts to create that inference, is legally insufficient. There was nothing in the plaintiff’s complaints about the supervisor that suggested he was objecting to discrimination on the basis of age or national origin. Instead, he framed his complaints in general terms as a personality conflict with an abusive supervisor. Absent protected activity, a retaliation claim necessarily fails under the ADEA and Title VII.
The plaintiff’s age discrimination claim fared no better. The ADEA protects employees age 40 and older and makes it unlawful for an employer to fail or refuse to hire or to discharge any employee or otherwise discriminate against an employee with respect to his compensation, terms, conditions, or privileges of employment, because of the employee’s age. In an age discrimination case, a plaintiff must prove that his age was the ‘but-for’ cause of the adverse employment action. In the ADEA context, it is insufficient to establish that age was a motivating factor. The plaintiff must prove that, but for his age, the adverse job action would not have occurred. In this respect, the ADEA is narrower than Title VII, under which mixed-motive discrimination claims are actionable. An ADEA plaintiff may satisfy his burden of proof with evidence that: (1) he is a member of the protected age class; (2) he was meeting the employer’s legitimate job expectations; (3) he suffered an adverse job action; and (4) similarly situated employees who are not members of the protected age class or who are substantially younger than the plaintiff were treated more favorably. It the plaintiff meets these elements, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse job action in question, at which point the burden shifts back to the plaintiff to prove that the employer’s proffered reason is pretext for discrimination. Evidence must be considered as a whole. In this case, the 7th Circuit concluded that the plaintiff did not meet his evidentiary burden. Statements made by the defendant’s personnel, which the plaintiff contended were age-based, were innocent when taken in the proper context. While significant, unexplained or systematic deviations from an employer’s established policies or practices may constitute evidence of discrimination, the plaintiff did not establish that he was qualified for the positions in questions (as to which he claimed the defendant’s interviewing policy was not followed). Circumstantial evidence of discrimination may also include disparate treatment–where similarly situated employees outside of a plaintiff’s protected class are treated more favorably by an employer. However, to be valid comparators, the other employees must be directly comparable to the plaintiff in all material respects. In this case, the plaintiff failed to meet his burden to establish that his proposed comparator employees (younger employees who were promoted while he wasn’t) were similarly situated to him. Consequently, his disparate treatment theory failed. Additionally, the plaintiff did not offer evidence of pretext. To meet this burden, a plaintiff must show that the employer’s proffered reason is a lie or a contrivance, not that is was unfair or mistaken. The plaintiff’s pretext arguments were insufficient, even considering the record evidence as a whole.