7th Circuit Affirms Summary Judgment for Employer on Age Discrimination Claims for Employment Termination and Failure to Re-hire in RIF Context

On January 22, 2021, the 7th Circuit affirmed an order of summary judgment in favor of an employer-defendant in an age discrimination lawsuit under the Age Discrimination in Employment Act ("ADEA").  Marnocha v. St. Vincent Hospital and Health Care Center, Inc., No. 20-1374 (7th Cir. Jan. 22, 2021).  The plaintiff, a neonatologist, alleged that the defendant terminated her employment and failed to rehire her for an open position in the context of a reduction-in-force.  The ADEA was enacted by Congress in 1967 to protect older workers from employment discrimination.  The ADEA protects employees who are age 40 or older.  It is unlawful for employers to take adverse employment action against employees who are in the protected age class because of their age.

The legal standard in an age discrimination case is "but-for" causation.  It is not enough for an age discrimination plaintiff to prove that her age was a motivating factor behind the adverse employment decision.  She must prove that but-for her age, the adverse employment action would not have occurred.  Age discrimination may be proved through direct or circumstantial evidence, or under the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green.  These cases often come down to whether similarly situated substantially younger employees were treated more favorably by the employer.  To be considered similarly situated, an employee must be directly comparable to the plaintiff in all material respects.  In this case, the neonatologists who worked at the employer's other facility (where the plaintiff did not work) were not similarly situated to the plaintiff.  Each facility was a distinct work environment.  With respect to the facility in which the plaintiff worked, all five of the neonatologists were terminated, including one under age 40.  Therefore, there was no disparate treatment.

It should be noted that the 7th Circuit clarified the standard for age discrimination in RIF cases.  A plaintiff is not required to prove that she was replaced by a younger employee, only that younger employees were treated more favorably in the RIF.  However, the younger employees must still be similarly situated to the age discrimination plaintiff, except in cases involving mini-RIFs, where the similarly situated requirement is waived.

The plaintiff's termination claim failed because she did not identify a similarly situated employee who was treated more favorably.  Her failure to rehire claim failed because the employer articulated a legitimate, non-discriminatory reason for its decision to hire a younger neonatologist for an open position at its other facility, which the plaintiff did not establish was pretext for age discrimination.