Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

OPP v. STATES ATTORNEY OF COOK COUNTY (December 29, 2010)

Christine Opp, Edward Barrett, and Leonard Cahnmann were each employed as Cook County Assistant State's Attorneys as of the end of 2006. Each of them was dismissed in the first three months of 2007, ostensibly for budgetary reasons. Each of the three filed suit claiming that his or her dismissal was a violation of the Age Discrimination in Employment Act ("ADEA"). Judges Bucklo, Leinenweber, and Castillo (N.D. Ill.) each granted the defendants' motion to dismiss on the grounds that the plaintiffs were excluded from ADEA coverage because they held policymaking positions. The plaintiffs appeal.

In their opinion, Seventh Circuit Judges Bauer, Sykes, and Hamilton affirmed. ADEA excludes from the definition of "employee" elected officials, anyone on an elected official's staff, or an appointee of an elected official "on the policymaking level." The Court noted that, unlike the Second Circuit, it applies the same test in an ADEA case that it applies in a First Amendment political affiliation case. That test is whether the position authorizes "meaningful input into governmental decision-making." In applying the test, a court should look at the powers inherent in the job rather than any one person’s actual duties. The powers inherent in the position of Assistant State's Attorney are set by state law and have been described in prior decisions of the Court. In fact, an Assistant State's Attorney is a surrogate for the State's Attorney and does have the power to create policy. The plaintiffs therefore hold policymaking positions and are not covered by ADEA.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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 A few months later, the Department rescinded Van Antwerp's offer.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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

RUNYON v. APPLIED EXTRUSION TECHNOLOGIES (August 30, 2010)

Timothy Runyon began working at Applied Extrusion Technologies' (AET) Terre Haute, Indiana plant in 2005 at the age of 45. A few months later, the company hired Troy Corbett, about fifteen years his junior. The two men worked for the same supervisor and had the same job title. Runyon had two fairly serious and heated altercations with coworkers in his first seven months on the job. Then, in February of 2006, Runyon and Corbett got into a heated argument that escalated into a fight. Both men were suspended for three days and instructed to write letters of apology. Runyon's letter focused more on his desire to remain employed and did not address the fight or issue an apology until its fourth and final paragraph. Corbett's letter, on the other hand, opened with an apology and expressed his sincere regret. Because of the earlier two incidents and the content of the letter, AET fired Runyon. It did not fire Corbett. Runyon brought an action against the company based on the Age Discrimination in Employment Act ("ADEA"). Judge McKinney (S.D. Ind.) granted judgment as a matter of law to AET at the close of Runyon's case-in-chief. Runyon appeals.

In their opinion, Judges Posner, Flaum, and Wood affirmed. The Court stated that Runyon was wrong in approaching the appeal as if it were a McDonnell Douglas indirect proof analysis. That burden-shifting approach is only appropriate at summary judgment, not after a plaintiff has had an opportunity to present his entire case at trial. The question at that time is whether he presented enough evidence to allow a rational factfinder to rule in his favor. On that question, Runyon must fail. He presented insufficient evidence to carry his burden that his age rather than his behavior was the real reason for his discharge.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

LINDSEY v. WALGREEN CO. (August 11, 2010)

Katie Lindsey had worked as a Walgreens pharmacist for only a few years when district supervisor Connie Jenkins promoted her to manager. Her management career did not go well or last long. Lindsey admitted to multiple violations of company policy and was demoted to staff pharmacist and transferred to another store. Jenkins warned her that additional violations could result in her discharge. Lindsey claims that she was the target of age-related disparagement at her new assignment, including from her direct supervisor. Shortly after her transfer, Lindsey filled a prescription although she was aware of a potentially serious interaction the drug could have with another medication that the customer was taking. She had to manually override the pharmacy's warning system in order to dispense the drug. Her supervisor reported the incident to Jenkins, who independently reviewed the prescription history, the customer's medical history, and the threat of interaction. Jenkins concluded that Lindsey violated company policy and terminated her employment. Lindsey brought suit under the Age Discrimination in Employment Act (“ADEA”). Judge Leinenweber (N.D. Ill.) granted summary judgment to Walgreens. Lindsey appeals.

In their opinion, Judges Bauer, Ripple, and Kanne affirmed. Lindsey relies principally on the "cat’s paw" theory of recovery, under which the bias of another employee can be attributed to an unbiased decision maker. The Court noted that the record contained evidence of inappropriate age-related remarks by her supervisor but did not include evidence that Jenkins relied on the supervisor or was presented with false or incomplete information. The undisputed evidence is that Jenkins conducted an independent investigation and did not rely solely on information conveyed by the supervisor. Without such evidence, the Court stated that a cat's paw theory could not survive. The Court added that even with such evidence, Lindsey's claim would fail. ADEA requires evidence that age was a determinative factor, not just a motivating factor. Lindsey cannot meet that threshold, given the undisputed evidence that Jenkins fired Lindsey because of her violation of company policy.

• Email This
• Print
• Comments
• Trackbacks
• Share Link