Employment Law Daily Referring to young job applicant’s potential job longevity not proxy for age bias
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Thursday, December 20, 2018

Referring to young job applicant’s potential job longevity not proxy for age bias

By Lorene D. Park, J.D.

Affirming summary judgment against an ADEA age discrimination claim that was based on the elimination of an employee’s job and rejection of his application for another position, the Seventh Circuit rejected arguments that he didn’t raise below and, on the merits, held that a job screener’s reference to a younger applicant’s potential for longevity was not a proxy for age. The screener tied the comment to age-neutral characteristics of enthusiasm and persistence in applying more than once, stating that the younger applicant would “inevitably stay with the company for many years to come as he has been actively trying to find a foot in the door here.” The court also affirmed that the retaliation claim was time-barred because that administrative charge was not filed within 300 days of the employer unequivocally stating that it would sue to enforce a release and waiver if the employee continued pursuing his discrimination charge. Judge Bucklo dissented in part, finding that the retaliation claim could timely be based on the employer’s actual filing of the threatened lawsuit (Wrolstad v. CUNA Mutual Insurance Society, December 18, 2018, Sykes, D.).

Severance and release. A long-time insurance company employee was promoted to be financial reporting manager in 2006. Three years later, his position was eliminated in a corporate restructuring. Then age 52, the employee applied for five vacant positions, including one as a pension participant support specialist. He was considered by the external recruiter to be “very overqualified” for that position. He said he was willing to work for $55,000, which was $20,000 less than his prior salary, but it was above the range for the open position and he did not get a second interview. Three other internal candidates were also rejected, and the job went to a 23-year-old external candidate. The employee ultimately signed a severance agreement for $70,000 in exchange for a release of all claims against the company arising on or before that date.

Discrimination charge. Nonetheless, the employee filed a complaint with the Madison Equal Opportunities Commission accusing his former employer of age discrimination. The employer denied the charge and argued that the claim was barred by the release. The commission dismissed the complaint and the employee appealed.

Employer sues for breach. On December 22, 2010, the employer sent him a letter explaining in no uncertain terms that it would sue to enforce the waiver if he did not drop his administrative appeal by January 10. He refused, and on January 28, 2011, the employer filed a breach-of-contract suit in Wisconsin state court.

Employee’s retaliation charge, ADEA suit. The employee then filed a second charge in November 2011, alleging that the employer’s suit constituted retaliation for his first complaint. In 2012, the state court dismissed the employer’s contract suit, reasoning that the commission should determine the waiver’s enforceability. In 2015, the employee transferred both claims to the EEOC, which issued a right-to-sue notice in February 2016.

The employee then filed this ADEA lawsuit. The district court entered summary judgment for the employer, finding that the employee produced no evidence supporting an inference that the decisions to eliminate his job and to not hire him for the support-specialist position were motivated by his age. The court also found that the retaliation claim was time-barred because he filed his retaliation charge with the commission more than 300 days after it accrued.

ADEA discrimination claim fails. Affirming, the Seventh Circuit first rejected the employee’s argument that there were “irregularities” in the employer’s hiring process because he had not raised that issue below and could not raise it for the first time on appeal. The same was true of his argument that the decisionmaker ignored the four older internal candidates and took the successful candidate’s youth as a factor in his favor. As the party opposing summary judgment, the employee was responsible for informing the trial judge of all reasons, legal or factual, for denying the motion. And even if the appeals court considered this new material, it didn’t support his claim. He pointed to the screener’s note about the younger applicant’s potential for longevity, but that was not a proxy for age because the screener explicitly tied it to age-neutral factors, like the successful applicant’s enthusiasm and persistence in applying to work for the company.

In addition, assuming that the district court made improper assumptions about the employee’s qualifications, as the employee argued, the appeals court also found it undisputed that his salary goal was above the high end of the position’s pay range and that he lacked the one-on-one customer service experience that was an important job qualification. In light of the foregoing, the district court was right to enter summary judgment against the discrimination claim.

Retaliation claim untimely. Also affirming with respect to the retaliation claim, the appeals court explained that it accrued on December 22, 2010, when the employer sent the employee a letter giving clear notice of its decision to sue to enforce the waiver in the severance agreement if he continued to pursue his appeal. The employee argued that the decision was not final because it was conditional, but the Supreme Court rejected that type of argument in Del. State Coll. v. Ricks. Because the employer’s letter was unequivocal, the employee had 300 days from that letter to file his retaliation charge, and he failed to do so within that time.

Partial dissent. Judge Bucklo concurred on the age discrimination claim but dissented with respect to the retaliation claim, reasoning that the employer’s filing of its lawsuit was a distinct, independently retaliatory act that opened a new limitations period under the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, so his retaliation claim based on the filing of the breach of contract suit would not be time-barred.

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