On August 14, 2017, the 7th Circuit reversed the district court’s order of summary judgment in favor of the defendant employer in a federal lawsuit filed by a Chicago Public High School maintenance supervisor, in which he alleged that he was given an unsatisfactory rating that resulted in the loss of his employment, because of his age and in retaliation for his prior age discrimination lawsuit against the Board, of which he had informed his supervisor before she gave him the negative rating. Owens v. Chicago Board of Education, No. 16-3607 (7th Cir. 8/14/2017) The plaintiff alleged that he informed his supervisor that he had an age discrimination lawsuit pending against the Board, and that she then replied ‘do you think you’re going to keep your job working for the Chicago Public Schools and you’re filing a lawsuit?’.

The plaintiff also alleged that he reminded his supervisor about his age discrimination lawsuit at a later date, to which she allegedly replied ‘I think you lost your mind by filing a lawsuit and you think you’re going to keep your job. You’ll see what I’m talking about.’ The next month the supervisor gave him an ‘unsatisfactory’ rating, the worst that he had ever received in his career, which began in 1975. The plaintiff alleged that his supervisor then said to him ‘I told you you weren’t going to get away with that.’ That fall the Board laid off 25 maintenance workers in a reduction-in-force. The plaintiff was first in line to be let go due to his ‘unsatisfactory’ rating. He alleged that his supervisor discriminated against him because of his age and retaliated against him because of his prior age discrimination lawsuit. The 7th Circuit affirmed the district court’s grant of summary judgment as to the plaintiff’s age discrimination claim because no other older employee had been given a negative rating by the supervisor and because she had legitimate reasons to downgrade his performance. However, the 7th Circuit reversed the district court’s decision on the retaliation claim. The Age Discrimination in Employment Act (“ADEA”) prohibits employers from retaliating against employees for asserting their rights under the ADEA through administrative complaints or lawsuits. The plaintiff’s alleged lackluster performance would not justify his layoff or discharge, if those shortcomings would have been tolerated in an employee who had not complained about discrimination. The plaintiff stated under oath that his supervisor knew about his earlier age discrimination lawsuit and twice threatened to get rid of someone with the temerity to sue his employer. He also claimed that when explaining his unsatisfactory rating, his supervisor stated that ‘I told you you weren’t going to get away with that.’ A jury could construe this as confirmation that she had carried through on her threat. Thus, a jury could reasonably conclude that the supervisor twice threatened to get rid of the plaintiff because of his lawsuit and used the rating to accomplish her unlawful objective. Without the unsatisfactory rating, the plaintiff’s seniority would have ensured that he retained his job. The plaintiff’s retaliation claim was remanded to the district court for trial.