On July 7, 2014, the 7th Circuit affirmed summary judgment on age discrimination and retaliation claims. Hutt v. AbbVie Products, LLC, No. 13-1481 (7th Cir.) July 7, 2014. The plaintiff alleged that her new manager requested all of his employees’ dates of birth as one of his first official acts, and that she and another older employee were subjected to repeated unwarranted warnings and hostile behavior due to their age. An employee may prove age discrimination with the direct or indirect method. Under the direct method, a plaintiff may present direct or circumstantial evidence that raises an inference that unlawful discrimination caused the adverse job action. Direct evidence is essentially a “smoking gun” admission of discriminatory intent. Circumstantial evidence includes suspicious timing, ambiguous statements, behavior or comments directed toward other employees in the protected class, and systematic disparate treatment. These may combined into a “convincing mosaic” of circumstantial evidence from which a discriminatory intent may be inferred. The evidence must point directly to a discriminatory reason for the adverse employment action and be directly related to the employment decision. The evidence in Hutt, including the manager’s request for the employees’ birth dates, was not enough to establish age discrimination under the direct method. Under the indirect method, a plaintiff may establish a prima facie case of employment discrimination by showing that: (1) she was a member of a protected class; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) the employer treated similarly-situated employees outside of the protected class more favorably. Without evidence that a similarly-situated employee outside of the protected class was treated more favorably, a disparate treatment claim fails under the indirect method.
A retaliation claim under the ADEA may also be established by the direct or indirect method. Under the direct method, a plaintiff must demonstrate that: (1) she engaged in protected activity; (2) she suffered an adverse job action; and (3) there is a causal connection between the protected activity and the adverse employment action. The filing of an EEOC charge constitutes statutorily protected activity for purposes of a retaliatory discharge claim under the ADEA. However, the plaintiff could not establish a causal connection between the filing of her EEOC charge and the adverse employment actions. She had already been on warning for ten months before she filed her EEOC charge. She unsuccessfully asserted that the employer had extended her warning status because of her EEOC charge. Suspicious timing alone is not enough to establish a causal connection for a retaliation claim, unless the protected activity and adverse employment action occurred within days or weeks of one another. The plaintiff’s allegation that her supervisor angrily confronted her three months after she filed her EEOC charge was not enough. Under the indirect method, a plaintiff may establish an ADEA retaliation claim by showing that: (1) she engaged in protected activity; (2) she met her employer’s legitimate performance expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly-situated employees who did not engage in protected activity. The indirect method requires evidence of a similarly-situated co-worker who had not engaged in similar protected activity and who was treated more favorably. To be similarly situated, a comparator must be similar to the plaintiff in terms of performance, qualifications and conduct, without distinguishing factors.