Proof Of Pretext Requires Lie, Not Mere Error
VAN ANTWERP v. CITY OF PEORIA (December 6, 2010)
Gene Van Antwerp served as a Peoria patrol officer for 18 years. The Police Department announced two vacancies in the Crime Scene Unit, one immediate and one a few months later, in September 2006. Van Antwerp applied. The Department offered the immediate slot to Officer Tuttle. They offered the delayed slot to Van Antwerp. The decision-makers actually believed that Officer Wong was a better candidate but they selected Van Antwerp because Wong was a month shy of the required seniority. A few months later, the Department rescinded Van Antwerp's offer. It reposted the same job several months later and offered it to Wong, who now had the requisite seniority. Although the Department offered no explanation at the time, it later stated that the vacancy was delayed because the incumbent's promotion was delayed. Van Antwerp, who was 50 years old at the time of his application, brought suit against the City of Peoria, alleging that its conduct violated the Age Discrimination in Employment Act (ADEA). Judge McDade (C.D. Ill.) granted summary judgment to the City. Van Antwerp appeals.
In their opinion, Seventh Circuit Judges Posner, Kanne, and Williams affirmed. ADEA makes it illegal to discriminate against a person because of his age. However, in order to prevail on such a claim, the plaintiff must establish that age played a role in and actually motivated the decision. The Court analyzed Van Antwerp's claim under the direct method of proof -- and found it lacking. First, the Court concluded that he offered insufficient evidence of pretext. Even his strongest evidence would not allow an inference that the Department lied. It might allow an inference of error, but that is not enough to show pretext. The Court added that Van Antwerp's claim would fail even if he successfully established pretext. He had to show that the Department's made its decision because of his age. There is actually no evidence in the record that age was the reason the Department rescinded his transfer. The Court briefly considered Van Antwerp's claim under the indirect method. The claim fails under that method both because Van Antwerp waived it and because he was unable to show pretext.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select