On December 18, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant-employer in an age discrimination lawsuit filed under the Age Discrimination in Employment Act (“ADEA”). Wrolstad v. CUNA Mutual Insurance Society, No. 17-1920 (7th Cir. 12/18/2018). The plaintiff was employed by the defendant for 25 years. His position was eliminated in a corporate restructuring, when he was 52-years-old. He applied for several open positions, but was not rehired. One particular position for which he had applied was given to a 23-year-old. He signed a severance agreement waiving all claims against the defendant in exchange for 50 weeks of severance pay. Subsequently, he filed a charge of age discrimination with the EEOC.
The defendant denied the charge and argued that the waiver in the severance agreement barred the age discrimination claim. The defendant also filed a breach-of-contract lawsuit against the plaintiff in state court to enforce the waiver. The plaintiff filed a second EEOC charge, alleging that the defendant threatened to file and filed the lawsuit against him in retaliation for his first EEOC charge. The plaintiff filed a lawsuit in federal court alleging age discrimination and retaliation in violation of the ADEA. He claimed that the defendant discriminated against him on the basis of his age when it eliminated his position and declined to hire him for any of the five jobs for which he applied. He also alleged that the defendant retaliated against him by threatening to enforce the severance agreement and doing so. The defendant moved for summary judgment, arguing that the plaintiff lacked evidence that his age was the “but for” cause of any of the challenged job actions–the defendant’s decision to eliminate his job, and its refusal to hire him for five other positions. The district court entered summary judgment in favor of the defendant, finding that the age discrimination claim lacked evidentiary support and the retaliation claim was time-barred. The district court held that the plaintiff produced no evidence to support an inference that the defendant’s decision to eliminate his job was motivated by his age, and that he lacked evidence showing that the defendant refused to hire him for another position because of his age.
The ADEA protects employees 40 years of age and older from age-based employment discrimination. The ADEA makes it unlawful for an employer to fail or refuse to hire or to discharge any employee in the protected age class because of the employee’s age. To prevail on an age discrimination claim, a plaintiff must prove that her age was the “but for” cause of the challenged job action. It is not enough to show that age was a motivating factor. The plaintiff must prove that, but for her age, the adverse employment action would not have occurred. The ADEA is narrower than Title VII, because Title VII protects employees against mixed-motive discrimination, but the ADEA does not. The plaintiff could meet his burden of proof by presenting direct or circumstantial evidence that the defendant took the subject adverse employment actions against him because of his age. Alternatively, he could proceed under the McDonnell Douglas burden-shifting approach by producing evidence that a similarly situated employee outside of the protected age class (or a substantially younger similarly situated employee within the protected age class) was treated more favorably. If he does so, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse job action. Then the burden shifts back to the plaintiff to show that the proffered reason was pretext for discrimination. The basic question at the summary judgment stage of disparate treatment age discrimination litigation is whether the evidence, in its totality, would allow a reasonable jury to find that the plaintiff suffered an adverse employment action because of his age. The defendant articulated several legitimate nondiscriminatory reasons in this case, and there was no evidence that the reasons were pretextual. Therefore, the plaintiff’s age discrimination claims failed.
The ADEA also prohibits retaliation for protected activity. The ADEA makes it unlawful for an employer to retaliate against an employee or job applicant for opposing an ADEA prohibited employment practice or because the employee or applicant made a charge of discriminate under the ADEA. In this case, the plaintiff’s retaliation claim was time-barred because he did not file his retaliation charge with the EEOC within 300 days from when he was notified of the alleged retaliatory employment action.