7th Circuit Affirms Summary Judgment for Employer in Age Discrimination Lawsuit

On July 17, 2019, the 7th Circuit affirmed the district court's order of summary judgment on an age discrimination claim in which a bus driver alleged that his employment was terminated because of his age in violation of the Age Discrimination in Employment Act ("ADEA").  Pickett v. Chicago Transit Authority, No. 18-2785 (7th Cir. July 17, 2019).  After an incident with a bus passenger, the plaintiff took a six month leave of absence while recovering.  After his physician concluded that he could return to work (but not as a driver), the plaintiff requested a light duty assignment.  He was given one, but four days later, he was informed that the defendant was not ready to permit his return to work.

The plaintiff had previously been told that before returning to work, he was required to complete a form and report to the defendant's Leave Management Services office, which would administer some tests, including a drug screen.  However, he ignored those instructions and simply showed up at his former workplace, where a supervisor gave him work pending advice from management.  The advice was a directive to go home until he had filled out the form and reported to the office.  He failed to follow those instructions until much later.   After he was finally approved for work, he retired, five days later.  He had filed a charge of age discrimination with the EEOC before he retired.  He alleged that younger employees were allowed to perform light-duty tasks.  After he received his notice of right-to-sue letter from the EEOC, he filed a federal lawsuit under the ADEA.  The district court granted summary judgment for the defendant.  The plaintiff had never taken the administrative steps that the defendant had required of him.  The defendant had instructed him to fill out a form and report to Leave Management Services for a drug test and other evaluation.  He failed to do so.  Even after being removed from the position to which he had been temporarily assigned pending eligibility, the plaintiff still failed to follow his employer's directive for more than a year.  Evidence that similarly situated substantially younger employees in light-duty positions had been allowed to bypass the same administrative steps would have supported an age discrimination claim.  But the plaintiff did not allege this disparate treatment.  Consequently, he could not demonstrate that his age caused an adverse effect, and his age discrimination claim failed.