On July 1, 2020, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in an age discrimination lawsuit filed under the Age Discrimination in Employment Act ("ADEA"). Tyburski v. City of Chicago, No. 18-3000 (7th Cir. July 1, 2020). The plaintiff, a City of Chicago employee, applied for a promotion when he was age seventy-four, but the city rejected his application. He filed a lawsuit against the city, alleging that the city violated the ADEA by denying him the promotion because of his age. He also filed a claim for age-based workplace harassment under the ADEA. The 7th Circuit concluded that the plaintiff failed to present evidence that his age, rather than his failing test score for the promotion, was the reason he was denied the promotion. In addition, the 7th Circuit ruled that he did not supply evidence that the alleged age-based harassment was severe or pervasive, which is required to support a hostile work environment claim.
The ADEA protects workers 40 years of age and older from age-based employment discrimination. To prevail on an age discrimination claim, a plaintiff must prove that but for her age, the employer would not have taken the adverse job action against her. It is not enough to show that age was a motivating factor. A failure to promote claim is cognizable under the ADEA. The main question at the summary judgment stage of an employment discrimination lawsuit is whether the plaintiff has presented enough evidence to support a reasonable jury finding in her favor, that age or another prohibited factor caused the employment termination or other adverse employment action. Under the burden-shifting evidentiary paradigm under McDonnell Douglas, a plaintiff may establish a prima facie case of employment discrimination by demonstrating that: (1) she is a member of a protected class; (2) she was meeting her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of her protected class were treated more favorably. If the plaintiff meets each element of her prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action, at which point the burden shifts back to the plaintiff to submit evidence that the employer's proffered reason is pretext for discrimination. The court must assess the evidence in its totality.
The city contended that the plaintiff's failure on the verbal portion of the job exam is what disqualified him for the promotion. The plaintiff countered that the city improperly scored his verbal exam and, therefore, used his failing grade as pretext to deny him the promotion. It is up to an employer to establish the qualifications for a job position; and as long as there is no sham scoring, the plaintiff's failure to meet those qualification dooms her claim. The plaintiff did not present any evidence of pretext in connection with the grading of the exam. To establish pretext, a plaintiff must do more that allege that an employer's stated reasons are inaccurate; she must present evidence that the employer's proffered reasons are dishonest. The plaintiff failed to do so. The fact that the interviewers knew his age is insufficient to establish pretext. Even if the plaintiff could show improper scoring, he did not present any evidence that his age, rather than the quality of his answers, motivated the denial of the promotion. An error in test scoring is not enough to prove discrimination, as long as the employer does not act for a prohibited reason. The use of subjective criteria alone also does not constitute evidence of pretext. The plaintiff was required to introduce some objective evidence indicating that the subjective evaluation was a mask for discrimination. He failed to do so.
The 7th Circuit stated that it has never decided whether a hostile work environment claim is cognizable under the ADEA, and that determination "can wait for another day." Even assuming a hostile work environment claim is cognizable under the ADEA, the plaintiff failed to provide evidence to support an age-based workplace harassment claim. In order to establish a hostile work environment claim, a plaintiff must plead and prove that: (1) she was subjected to unwelcome harassment; (2) the harassment was based on a protected classification; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create a hostile or abusive work environment; and (4) there is a basis for employer liability. A plaintiff must demonstrate that the hostile work environment is both objectively and subjectively offensive. Courts consider all of the circumstances, including the frequency and severity of the conduct, whether it is humiliating or physically threatening, and whether it unreasonably interferes with an employee's work performance. In this case, three or four age-related comments from co-workers over a period of years were not sufficiently severe or pervasive to support a hostile work environment claim.