Employment Law Daily 60-year-old manager denied multiple lateral transfers couldn’t show age, national origin bias
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Monday, March 12, 2018

60-year-old manager denied multiple lateral transfers couldn’t show age, national origin bias

By Joy P. Waltemath, J.D.

Hired at 55 and promoted at 58, an American railroad manager who, at age 60, unsuccessfully sought to transfer out from under an allegedly abusive and argumentative supervisor (who was Canadian, and whose boss was too) could not show that his failure to transfer into another management-level job before his position was eliminated was based on age or national origin discrimination. He was moved instead into a nonmanagement clerical position. And although he had complained about his supervisor’s abusive and insulting manner (often immediately followed by his supervisor raising “performance issues” with him), his complaints never referenced any protected class but instead raised a “personality conflict” or general abuse. As a result, the Seventh Circuit affirmed the dismissal on summary judgment of the manager’s age and disability discrimination and retaliation claims (Skiba v. Illinois Central Railroad Co., March 8, 2018, Flaum, J.).

No retaliation for complaints. The appeals court recounted the manager’s experiences as an Illinois Central (IC) employee in some detail but ultimately found nothing actionable. For example, he apparently first complained about his supervisor’s actions in response to an investigation from HR after another employee complained, and the manager confirmed the abusive, insulting, and disrespectful behavior committed by his supervisor, but nothing suggested he was protesting discrimination on the basis of age or national origin. Instead, he stated the issue was a mere “personality conflict,” never intimating that the supervisor had acted with unlawful discriminatory animus. This was not protected activity, and his retaliation claims accordingly failed.

No age bias. Noting that the manager had to show but-for causation to succeed on his age discrimination claim, the court evaluated the manager’s evidence, which included (1) statements made by his employer’s personnel; (2) deviations from IC’s stated hiring practices; (3) preferential treatment of younger employees; and (4) evidence of pretext.

Management statements. Whether or not he was asked (when interviewed for the position into which he was promoted) how old he was did not support an inference of discrimination because it didn’t happen near the time his transfers were denied or his position eliminated, nor was it made in reference to those actions, but it happened more than two years before. Plus, he got the promotion at age 58, stressed the appeals court. Remarks by other hiring managers after rejecting his applications for assorted managerial openings that he “would not respond well to the need for additional training”; that a different candidate (who happened to be younger) would be “a little faster” at grasping the job; and that he was “low energy” during the interview were not necessarily a reflection of bias against his age. Rather, the court found them innocuous when viewed in context—and they were explained away by additional testimony from each speaker. The court found the inferences the manager urged to be “too far divorced from the factual record” to support his claim.

He also made much of another hiring manager’s statement about another IC candidate being “close to retirement” but the court found the probative value of a comment concerning a separate, unrelated employee to be limited at best. Plus, because courts cannot necessarily “equate retirement eligibility with age” given that “eligibility for retirement may be based on age, years of service, or a combination of the two,” the court would not, without more, equate the hiring manager’s comments about another employee’s impending retirement with an inappropriate focus on age. Nor was a comment by the HR director (who actually made repeated efforts to help the manager find a new position) that the manager was a “later career person” a euphemism for old age. Besides, the HR director had no final decisionmaking authority over either his demotion or refusal to transfer into another management position.

No clear hiring deviations, no similarly situated comparators. The appeals court was equally unconvinced by the manager’s claims the company engaged in “significant and unexplained” deviations from its established hiring practices. The manager had not adequately shown he was qualified for a majority of the 82 positions for which he supposedly applied, and he was interviewed for a number of those openings, sometimes more than once. Plus, he argued that younger IC employees were “systematically” given preferential treatment (he listed 37 younger employees in their 20s, 30s, and 40s who were offered management-level positions for which he applied), but he failed completely to show they were similarly situated comparators.

No pretext. If the manager had established a prima facie case, his employer had offered legitimate, nondiscriminatory reasons for its refusal to transfer him to another managerial role: “He either was not qualified for the positions at issue or the individuals ultimately hired were better candidates.” And his pretext evidence failed. That different hiring managers had differing evaluations of him could hardly be unexpected, said the court, since he had applied for 82 positions. The manager also argued that one individual’s hiring process (which involved a personal rating system in spreadsheet form) suggested pretext, primarily because it wasn’t shared with HR until after the employee’s EEOC complaint was filed. But the court found nothing suspicious in the fact that HR did not request his interview notes and rating form until after the EEOC complaint generated HR’s attention.

National origin claim also lacks merit. As for the manager’s national origin discrimination claim, the appeals court gave it the attention the manager had (he devoted one out of 53 pages in his brief to it): That he was American while his supervisors (and their managers) were Canadian, standing alone, did nothing to suggest that this fact was a motivating factor for any employment decision.

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