7th Circuit Affirms Summary Judgment on Age Discrimination and Retaliation Claims

On October 9, 2019, the 7th Circuit affirmed the district court’s order of summary judgment in favor of the defendant-employer in an age discrimination and retaliation lawsuit under the Age Discrimination in Employment Act (“ADEA”). McDaniel v. Progress Rail Locomotive, Inc., No. 18-3565 (10/9/2019). The plaintiff alleged that his former employer unlawfully discriminated against him on the basis of age and retaliated against him for complaining about a superior, in violation of the ADEA. The plaintiff failed to produce evidence of any substantially younger similarly situated employees who were treated more favorably.

The plaintiff alleged that the defendant discriminated against him in violation of the ADEA by improperly disciplining him and terminating his employment on the basis of his age. The ADEA protects employees 40 years of age and older from age-based employment discrimination. To recover under a theory of disparate treatment in the ADEA context, it is insufficient to demonstrate that age was a motivating factor. The plaintiff must prove that, “but for” her age, the adverse employment action would not have occurred. The ultimate question in any employment discrimination case is whether the evidence would permit a jury to conclude that the plaintiff’s age, gender, ethnicity or other proscribed factor caused the employment termination or other adverse job action. Under the McDonnell Douglas burden-shifting evidentiary framework, a plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was meeting the employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees who are not members of her protected class were treated more favorably. If the plaintiff satisfies each element of her prima facie case of employment discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse job action, at which point the burden shifts back to the plaintiff to submit evidence that the employer’s proffered reason is pretext for unlawful discrimination. The McDonnell Douglas proof paradigm is not the only method to prove age discrimination. At the summary judgment stage of age discrimination litigation, the court must consider all evidence to determine whether a reasonable jury could conclude that the plaintiff suffered an adverse employment action because of her age. The evidence is to be assessed as a whole.

In this case, the plaintiff failed to satisfy the fourth element, disparate treatment. He did not identify any similarly situated employees outside of his protected class who were treated more favorably. Therefore, his age discrimination claim failed under the McDonnell Douglas framework. The purpose of the similarly situated requirement is to eliminate other possible variables that may show that non-discriminatory factors accounted for the adverse job action, such as differing roles, performance histories, or different decision-making personnel. This helps isolate the critical independent variable–discriminatory animus. Although similarly situated employees need not be identical in every conceivable way, they must be directly comparable to the plaintiff in all material respects. A plaintiff must at least demonstrate that the comparator employees: (1) dealt with the same supervisor; (2) were subject to the same standards; and (3) engaged in similar conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them. Whether a comparator is similarly situated is usually a question of fact, unless the plaintiff has no evidence. The plaintiff provided no information about his proposed comparator employees that would allow a determination of whether they were similarly situated. His bare conclusions were insufficient. Thus, his age discrimination claim failed at the summary judgment stage.

The plaintiff’s retaliation claim also failed. To establish a prima facie case of retaliation under the McDonnell Douglas framework, a plaintiff must demonstrate that: (1) she engaged in protected activity; (2) she suffered a materially adverse employment action; (3) she was meeting her employer’s legitimate performance expectations; and (4) she was treated less favorably than similarly situated employees who did not engage in protected activity. A plaintiff must also establish that retaliation was the “but for” cause of the adverse employment action, not merely a contributing factor. The plaintiff failed to present evidence of any similarly situated employee who did not engage in protected activity and was treated more favorably under similar circumstances. Thus, he could not establish a prima facie claim of retaliation.

7th Circuit Affirms Summary Judgment on Age Discrimination and Retaliation Claims

On July 13, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in an age discrimination and retaliation lawsuit. Lauth v. Covance, No. 16-2939 (7th Cir. July 13, 2017). The plaintiff claimed that the defendant terminated his employment because of his age and in retaliation for his EEOC Charges, in violation of the Age Discrimination in Employment Act (“ADEA”). The question on appeal was whether a triable issue of fact existed as to whether the defendant terminated the plaintiff because of his age or in retaliation for his protected activity. The 7th Circuit has discarded the distinction between direct and indirect methods of proof in employment discrimination cases, and has clarified that all evidence must be evaluated as a whole. The proper inquiry is whether a reasonable jury could determine, based on all the evidence, that the plaintiff’s age or protected activity was the cause of his termination.

The plaintiff argued that circumstantial evidence supported his claim–that he was satisfactorily performing his job; and that a similarly-situated younger co-worker was treated more favorably by the defendant. However, at time of his termination, his supervisors did not believe that he was performing his job adequately. The plaintiff offered no evidence to suggest that the defendant’s concerns regarding his performance were pretextual. The plaintiff’s belief that he was performing his job adequately is not relevant to the issue of whether the defendant believed that it had a legitimate, non-discriminatory basis to terminate him. The question is not whether the employer’s stated reason was inaccurate or unfair, but whether the employer honestly believed the reasons for its decision. The plaintiff failed to provide any evidence that would support a reasonable inference that the defendant did not have honest concerns about his performance.

In addition, the evidence did not support the plaintiff’s contention that he and his younger co-worker were similarly situated and that the co-worker was treated more favorably. An employee is similarly situated to a plaintiff if the two employees deal with the same supervisor, are subject to the same standards, and have engaged in similar conduct, without differentiating or mitigating circumstances that would distinguish the employer’s treatment of them. The plaintiff and the co-worker had the same supervisor and were subject to the same standards. The question was whether they engaged in similar conduct that was treated differently. Based on discrepancies in their behavior, and their responses to requests to remedy their behavior, the plaintiff was unable to demonstrate that he and his co-worker were similarly situated. The plaintiff failed to provide evidence from which a reasonable jury could infer that the defendant terminated his employment because of his age and, therefore, his age discrimination claim failed.

The plaintiff also claimed that the defendant terminated him in retaliation for his protected activity of filing charges of discrimination with the EEOC. To survive summary judgment on a retaliation claim, a plaintiff must establish that: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse job action. Under the ADEA, an EEOC charge constitutes protected activity, and a termination of employment is an adverse job action. However, the plaintiff failed to establish the required causal link between his EEOC charges and termination. His contention that the defendant was mistaken about his performance is irrelevant. Judgments regarding the fairness of an adverse job action or the accuracy of an employer’s belief about an employee’s job performance have no place in determining whether the employer acted based on an improper motive. Whether the plaintiff agreed with the basis for his employer’s actions against him is irrelevant. The only question is whether the employer actually believed it had a legitimate basis to terminate him. The plaintiff provided no evidence that the employer’s reasons were pretext to cover up a retaliatory motive; and his own speculation is insufficient as a matter of law. Thus, his retaliation claim also failed.