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.