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E.E.O.C. v. COMMUNITY SCHOOL DIST. NO. 9

August 22, 1986

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
COMMUNITY UNIT SCHOOL DISTRICT NO. 9, MADISON COUNTY, ILLINOIS AND BOARD OF TRUSTEES OF THE TEACHERS RETIREMENT SYSTEM OF STATE OF ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Foreman, Chief Judge:

MEMORANDUM AND ORDER

Plaintiff, the Equal Employment Opportunity Commission, brought this action charging that the defendant Community Unit School District No. 9, Madison County, Illinois violated the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (ADEA) when it reclassified or demoted Calvin Bartels and Fred Noeth from administrators to teachers. The plaintiff joined as defendant the Board of Trustees of the Teachers Retirement System of the State of Illinois in order to effectuate complete relief.

Specifically, the plaintiff states that due to financial problems, the defendant decided to close a number of schools at the end of the 1982-1983 school year. As a result of the school closings, it was necessary to reassign a number of administrators. The plaintiff alleges that the B.J. Davis, Superintendent of Schools, selected Calvin Bartels and Fred Noeth for reclassification to teaching positions because they had previously notified the School Board that they intended to retire at the end of the 1983-1984 school year. The plaintiff argues that this factor (notification of retirement) is so closely related to age that it amounts to age discrimination. The plaintiff further contends that the Court should find that this reclassification or demotion was paramount to a constructive discharge and that the Court should not offset the award to Bartels and Noeth by the amount they would have received had they taught the last year rather than take retirement at the end of the 1982-1983 school year.

The defendant maintains that the Bartels and Noeth's announced retirement was a factor, but not the determining factor in its decision to reclassify them. The defendant contends that their performance was the determining factor. In any event, the defendant argues that even if the Court finds that Bartels and Noeth's intention to retire after the 1983-1984 school year was the determining factor, the defendant's concern about continuity in the administrator positions was a reasonable factor other than age that mandated the defendant's decision. Finally, the defendant submits that if the Court finds a violation of the ADEA then any award should be offset by the fact that Bartels and Noeth did not mitigate their damages by taking the teaching positions for the 1983-1984 school year.

The Court, without a jury, heard the matter on July 31, 1986 and August 1, 1986. The following memorandum represents this Court findings of fact and conclusions of law as contemplated by Fed.R.Civ.P. 52(a).

The ADEA prohibits discrimination in the workplace based on age. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985). To establish a violation of the ADEA, the plaintiff must prove an adverse employment decision was made because of his age. Dorsch v. L.B. Foster Co., 782 F.2d 1421, 1424 (7th Cir. 1986). To accomplish this, the plaintiff must prove not that age was the sole factor motivating the employer but that age was a "determining factor;" that the employment decision would not have been made "but for" his employer's motive to discriminate against him because of his age. Id. The plaintiff may prove his case with direct or circumstantial evidence. Id. When the plaintiff is forced to rely on indirect evidence, the Court must employ the analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to evaluate the evidence. The shifting burdens of proof set forth in McDonnell Douglas are designed so that the "`plaintiff has his day in court despite the unavailability of direct evidence.'" Thurston, 105 S.Ct. at 622 (citation omitted). However, when the plaintiff presents direct evidence, the McDonnell Douglas analysis is inapplicable. Id.

Here, the plaintiff argues that there is direct evidence of discrimination and that the McDonnell Douglas analysis is inapplicable. The plaintiff characterizes the evidence of defendant's reliance on Bartels and Noeth's notification as direct evidence of discrimination because such a factor is inexorably linked with age. Therefore, the Court will not employ the McDonnell Douglas framework.

Prior to a finding of specific facts and an application of them to the law, the Court feels it is appropriate to discuss what is and is not claimed by the plaintiff. There are two levels of the employment decision in question. The first level is the decision to close some of the defendant's schools. This decision was not based on age, nor does the plaintiff allege that it was based on age. It was a purely economic decision. Correspondingly, the decision to reassign the administrators at these schools was economic. Further, the fact that some of these administrators or some of the administrators from the remaining schools had to be reassigned to teaching positions was also an economic decision. There were simply more administrators than administrative positions. The second level of the decision involves the question: given the independent economic reason to reassign someone to a teaching position who should that someone be and on what basis shall he be chosen? See Larson, Employment Discrimination, § 100.21 (1986). The plaintiff contends that this decision was based on the fact that Bartels and Noeth intended to retire. The defendant submits that although this was a consideration, the determining factor was Bartels and Noeth's performance in relation to the other administrators.

Based on this finding the Court must determine whether the defendant's decisional process with respect to Bartels and Noeth involved discrimination. Placed in the legal framework, the Court must determine if defendant's desire for continuity was a reasonable factor other than age.

The ADEA provides that it shall not be unlawful to take any otherwise prohibited actions "where the differentiation is based on factors other than age. . . ." 29 U.S.C. § 623(f)(1). Theoretically, this defense can be defeated by showing that the factor is not reasonable or that the factor is so inexorably linked with age that cannot be viewed as a separate factor. The plaintiff has argued that notification of an intent to retire is so inexorably linked with age that it cannot be viewed as a separate factor.

The courts construing this defense have held that seniority is inexorably linked with age, and cannot be viewed as a separate factor; E.E.O.C. v. City of Altoona, PA., 723 F.2d 4 (3d Cir. 1983) cert. denied, 467 U.S. 1204, 104 S.Ct. 2386, 81 L.Ed.2d 344 (1984); that retirement status is not a factor other than age, E.E.O.C. v. Borden's Inc., 724 F.2d 1390 (9th Cir. 1984); and that, a need for a "younger image" was not a factor other than age, Rose v. National Cash Register Corp., 703 F.2d 225 (6th Cir.). cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 317 (1983).

Likewise, the Court holds here that notification of an intent to retire is so inexorably linked with age that it cannot be viewed as a separate factor. Obviously, the older the individual gets, the more likely he is to retire. Therefore, the continuity argument could be made against any older employee. The Court cannot envision a common situation, other than retirement, where the employer would know that an employee intended to resign in the future and would use that fact in its employment decision. Additionally, such a factor has the effect of penalizing an employee for giving in advance to his employer the date he intends to retire. The undisputed evidence at trial indicated that employees such as Bartels and Noeth gave their notification of their intent to retire after a given school year so that the defendant could pay them their unused sick pay over the last few years of their employment and thereby increase their pension benefits which were based in part on their salary in these last few years. Bartels and Noeth gave their notification in advance to take advantage of this procedure, but were ...


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