On July 1, 2020, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in an age discrimination lawsuit filed under the Age Discrimination in Employment Act (“ADEA”). Tyburski v. City of Chicago, No. 18-3000 (7th Cir. July 1, 2020). The plaintiff, a City of Chicago employee, applied for a promotion when he was age seventy-four, but the city rejected his application. He filed a lawsuit against the city, alleging that the city violated the ADEA by denying him the promotion because of his age. He also filed a claim for age-based workplace harassment under the ADEA. The 7th Circuit concluded that the plaintiff failed to present evidence that his age, rather than his failing test score for the promotion, was the reason he was denied the promotion. In addition, the 7th Circuit ruled that he did not supply evidence that the alleged age-based harassment was severe or pervasive, which is required to support a hostile work environment claim.

The ADEA protects workers 40 years of age and older from age-based employment discrimination. To prevail on an age discrimination claim, a plaintiff must prove that but for her age, the employer would not have taken the adverse job action against her. It is not enough to show that age was a motivating factor. A failure to promote claim is cognizable under the ADEA. The main question at the summary judgment stage of an employment discrimination lawsuit is whether the plaintiff has presented enough evidence to support a reasonable jury finding in her favor, that age or another prohibited factor caused the employment termination or other adverse employment action. Under the burden-shifting evidentiary paradigm under McDonnell Douglas, a plaintiff may establish a prima facie case of employment discrimination by demonstrating that: (1) she is a member of a protected class; (2) she was meeting her employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of her protected class were treated more favorably. If the plaintiff meets each element of her prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action, at which point the burden shifts back to the plaintiff to submit evidence that the employer’s proffered reason is pretext for discrimination. The court must assess the evidence in its totality.

The city contended that the plaintiff’s failure on the verbal portion of the job exam is what disqualified him for the promotion. The plaintiff countered that the city improperly scored his verbal exam and, therefore, used his failing grade as pretext to deny him the promotion. It is up to an employer to establish the qualifications for a job position; and as long as there is no sham scoring, the plaintiff’s failure to meet those qualification dooms her claim. The plaintiff did not present any evidence of pretext in connection with the grading of the exam. To establish pretext, a plaintiff must do more that allege that an employer’s stated reasons are inaccurate; she must present evidence that the employer’s proffered reasons are dishonest. The plaintiff failed to do so. The fact that the interviewers knew his age is insufficient to establish pretext. Even if the plaintiff could show improper scoring, he did not present any evidence that his age, rather than the quality of his answers, motivated the denial of the promotion. An error in test scoring is not enough to prove discrimination, as long as the employer does not act for a prohibited reason. The use of subjective criteria alone also does not constitute evidence of pretext. The plaintiff was required to introduce some objective evidence indicating that the subjective evaluation was a mask for discrimination. He failed to do so.

The 7th Circuit stated that it has never decided whether a hostile work environment claim is cognizable under the ADEA, and that determination “can wait for another day.” Even assuming a hostile work environment claim is cognizable under the ADEA, the plaintiff failed to provide evidence to support an age-based workplace harassment claim. In order to establish a hostile work environment claim, a plaintiff must plead and prove that: (1) she was subjected to unwelcome harassment; (2) the harassment was based on a protected classification; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create a hostile or abusive work environment; and (4) there is a basis for employer liability. A plaintiff must demonstrate that the hostile work environment is both objectively and subjectively offensive. Courts consider all of the circumstances, including the frequency and severity of the conduct, whether it is humiliating or physically threatening, and whether it unreasonably interferes with an employee’s work performance. In this case, three or four age-related comments from co-workers over a period of years were not sufficiently severe or pervasive to support a hostile work environment claim.

On July 17, 2019, the 7th Circuit affirmed the district court’s order of summary judgment on an age discrimination claim in which a bus driver alleged that his employment was terminated because of his age in violation of the Age Discrimination in Employment Act (“ADEA”). Pickett v. Chicago Transit Authority, No. 18-2785 (7th Cir. July 17, 2019). After an incident with a bus passenger, the plaintiff took a six month leave of absence while recovering. After his physician concluded that he could return to work (but not as a driver), the plaintiff requested a light duty assignment. He was given one, but four days later, he was informed that the defendant was not ready to permit his return to work.

The plaintiff had previously been told that before returning to work, he was required to complete a form and report to the defendant’s Leave Management Services office, which would administer some tests, including a drug screen. However, he ignored those instructions and simply showed up at his former workplace, where a supervisor gave him work pending advice from management. The advice was a directive to go home until he had filled out the form and reported to the office. He failed to follow those instructions until much later. After he was finally approved for work, he retired, five days later. He had filed a charge of age discrimination with the EEOC before he retired. He alleged that younger employees were allowed to perform light-duty tasks. After he received his notice of right-to-sue letter from the EEOC, he filed a federal lawsuit under the ADEA. The district court granted summary judgment for the defendant. The plaintiff had never taken the administrative steps that the defendant had required of him. The defendant had instructed him to fill out a form and report to Leave Management Services for a drug test and other evaluation. He failed to do so. Even after being removed from the position to which he had been temporarily assigned pending eligibility, the plaintiff still failed to follow his employer’s directive for more than a year. Evidence that similarly situated substantially younger employees in light-duty positions had been allowed to bypass the same administrative steps would have supported an age discrimination claim. But the plaintiff did not allege this disparate treatment. Consequently, he could not demonstrate that his age caused an adverse effect, and his age discrimination claim failed.