On October 15, 2015, the U.S. Court of Appeals for the 7th Circuit affirmed an order of summary judgment in a lawsuit in which a terminated employee alleged age and disability discrimination under the ADEA and ADA as well as retaliation under the FMLA. Woods v. City of Berwyn, No. 13-3766 (7th Cir., 10-15-2015). The former employee, a Fire Department Lieutenant, filed a complaint in federal court in which he alleged employment discrimination and retaliation under the cat's paw theory of liability, which applies in an employment discrimination case when a biased subordinate who lacks decision-making power uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action. Under the cat's paw theory, the discriminatory animus of the non-decision-maker must cause the adverse employment decision. The decision-maker's exercise of her own judgment alone does not break causation. However, if an unbiased decision-maker conducts an independent investigation of the information supplied by the biased employee, and, based on the investigation, determines that the adverse action is justified, then there is no causation.
ADEA (Age Discrimination in Employment Act)
On July 30, 2015, the 7th Circuit published an opinion in an employment discrimination lawsuit that was filed against a college by a professor under the Americans with Disabilities Act ("ADA") and the Age Discrimination in Employment Act ("ADEA") Silk v. Board of Trustees, Moraine Valley Community College, No. 14-2405 (7th Cir. July 30, 2015). Under the ADA, it is unlawful for a covered employer to take adverse job action against a qualified employee on the basis of his or her: (1) disability, (2) record of disability, or (3) the employer's perception of the employee as disabled. The employee alleged that the employer terminated his employment and took various other adverse job actions against him on the basis of its decision-makers' perception of him as disabled.
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.
On November 19, 2014, the 7th Circuit affirmed the district court's grant of summary judgment in an age discrimination case in which the plaintiff alleged that the employer had unlawfully terminated him because of his age in violation of the Age Discrimination in Employment Act. Widmar v. Sun chemical Corp., No. 13-2313 (7th Cir., 11-19-2014). In order to establish an age discrimination claim under the indirect method of proof, a plaintiff must show that: (1) he is a member of a protected class (age 40 or older); (2) he met the employer's legitimate business expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees outside of the protected class or substantially younger employees were treated more favorably. A similarly situated employee is one whose performance, qualifications, and conduct are comparable in all material respects. If the plaintiff establishes a prima facie case of age discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. The plaintiff can avoid summary judgment with evidence that the employer's proffered reason was pretext for discrimination.
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.
On April 25, 2014, the U.S. Court of Appeals for the Seventh Circuit reversed the grant of summary judgment in an age discrimination case. Baker v. Macon Resources, Inc., No. 13-3324 (April 25, 2014). The Seventh Circuit found that the employer treated a younger employee more leniently than the plaintiff for the same policy violation. In an ADEA disparate discipline case, the inquiry is whether a younger employee engaged in similar misconduct but received lighter punishment. The Seventh Circuit rejected the employer's proffered reason as pretext. The Seventh Circuit stated that pretext may be inferred from inaccuracies or inconsistencies in an employer's proffered reason as well as selective enforcement of a disciplinary policy. In Baker, the proffered reason--an attempt to distinguish the plaintiff from the younger employee--was inconsistent with the employer's own policy, which it had selectively enforced. Therefore, the Seventh Circuit concluded that the pretext evidence could lead a jury to reasonably believe that age is the true reason the employer fired the plaintiff but retained the younger employee after both violated the same company rule.
The Seventh Circuit Court of Appeals recently affirmed the district court's grant of summary judgment in a case in which the plaintiff alleged that the employer terminated her employment on account of age discrimination, reverse race discrimination, sex discrimination, and retaliation. Andrews v. CBOCS West, No. 12-3399 (7th Cir.), February 14, 2014. The plaintiff filed a lawsuit against her employer in which she brought claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination In Employment Act, and Section 1981 of the Civil Rights Act of 1866. The plaintiff was subjected to daily, derogatory age-based remarks made by her supervisor. However, the Seventh Circuit found that the plaintiff had voluntarily resigned from employment and, therefore, suffered no materially adverse employment action.