On December 10, 2014, the 7th Circuit affirmed summary judgment in a lawsuit in which the plaintiff alleged sex discrimination, age discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act. Ripberger v. Corizon, Inc., No. 13-2070 (7th Cir., 12-10-2014). The plaintiff/employee claimed that her employer failed to hire her for an open position in connection with a restructuring because of her sex, age, and protected activity of assisting another employee with her sex discrimination grievance. The 7th Circuit agreed with the district court, that the plaintiff was an unfortunate victim of a reduced work force in the wake of the privatization of a state program. The 7th Circuit stated that the fundamental question on summary judgment is simply whether a reasonable jury could find prohibited discrimination, i.e., that a rational jury could conclude that the employer took the adverse action on account of her protected class.

Title VII prohibits employers from refusing to hire or otherwise discrimination against an individual on the basis of sex. The 7th Circuit found that the plaintiff’s evidence of sex discrimination is insufficient to permit a reasonable jury to conclude that she was not offered a position because of her sex. The 7th Circuit factored into its analysis evidence that the majority of employees hired for open positions were female. The ultimate question under any method of proof is whether the employer advanced a legitimate reason for hiring a male to fill the position instead of the plaintiff. The plaintiff did not offer enough evidence to cast doubt or suspicion on the legitimacy of the proffered reason. The court does not sit as a super-personnel department evaluating the wisdom of an employer’s staffing decisions. Whether the employer’s reason is wise, fair or even correct is irrelevant, as long as it is the real reason for the adverse job action. The fact that in hindsight the plaintiff may have been a better choice does not prove gender discrimination.

The ADEA makes it unlawful for an employer to refuse to hire or discriminate against an individual because of his or her age. The protection of the ADEA is limited to individuals age forty and over. In an age discrimination case, the plaintiff must produce evidence from which a jury could infer that his or her age is a but-for cause of the adverse job action. The plaintiff did not introduce evidence that the employer failed to hire her because of her age. The fact that the same decision-maker had hired the plaintiff just two years earlier militates against the claim that he wanted to eliminate her because of her age. Any inference of age discrimination is also undercut by the fact that half of the employees hired are about plaintiff’s age. No inference of age discrimination can be drawn from the replacement of one worker with another worker insignificantly younger. The plaintiff presented no evidence that her age motivated the decision to not hire her.

In a Title VII retaliation case, the plaintiff must demonstrate that retaliation is the but-for cause of the adverse employment action. Assisting another employee with her discrimination complaint is protected activity. Evidence that one manager reacted negatively to the plaintiff’s protected activity has no value in the absence of any evidence that he was a decision-maker in the hiring process. Without that link, no inference of retaliation can be drawn from the manager’s behavior toward the plaintiff. Since there is no evidence that the manager had input into the decision to not hire the plaintiff, she cannot show causation. The employer offered a legitimate, non-retaliatory reason for its employment decision, and there is no evidence that the stated reason is unworthy of belief. The evidence is simply insufficient to demonstrate any unlawful motivation behind the employment decision.