Therefore, a plaintiff can establish liability for age discrimination without presenting any evidence of the defendant's state of mind. Id.
The apparent inconsistency between Rose and Burlew can only be reconciled by distinguishing retaliation claims from ordinary age discrimination claims. While an employer may unconsciously discriminate against an employee, the same cannot be said for an act of retaliation. Retaliation, by its very nature, requires that the employer undertake its actions willfully. This distinction is implicit in the Seventh Circuit's holding that an employer who acts in good faith cannot logically be held to have retaliated against its employee. Rose, 814 F.2d at 493. Therefore, we find that Rose stands for the proposition that an employee who claims that her employer retaliated against her for exercising her rights under the ADEA must establish that the employer undertook the challenged actions with the intent to retaliate.
Having reached this conclusion, we must also reject the EEOC's argument that an employer's good faith should be treated as an affirmative defense, with the burden of proof resting on the employer.
The ultimate burden of proving that the challenged conduct violates the ADEA remains with the plaintiff. See, e.g., Burlew, 869 F.2d at 1063. Because willfulness is a necessary component of retaliation, evidence of the employer's good faith justifications for the challenged conduct should be treated as evidence that rebuts the plaintiff's evidence of discriminatory intent, rather than as an affirmative defense which the employer must separately prove.
Applying this framework to the facts at hand, we find that the Board is entitled to summary judgment. The Board has produced facts which establish that it adopted Article 17.2 in order to avoid inconsistent results and to save the time, money and effort resulting from litigating in two forums simultaneously. The EEOC has produced no facts which indicate that these were not the actual reasons behind the adoption of the provision.
Although it has produced no facts that suggest the Board's motives were retaliatory, the EEOC suggests that the absence of certain facts calls the Board's motives into question. First, the EEOC suggests that the Board must have willfully intended to discriminate because Article 17.2 has not been the subject of negotiations between the Board and the Union. However, we find no correlation between the absence of negotiation and the Board's motives. The fact that the Board and the Union did not haggle over the provision during negotiations neither increases nor decreases the probability that the Board's motives were discriminatory.
The EEOC also suggests that we should find that the Board willfully retaliated because it failed to conduct "studies, analyses or inquiries" or prepare "compilations or reports" related to whether Article 17.2 could actually be expected to result in savings of time, money or effort. However, as the Board observes, it is a fairly well established principle that limiting litigation to one forum conserves resources and prevents inconsistent decisions. See, e.g., Lytle v. Household Manufacturing, 494 U.S. 545, 110 S. Ct. 1331, 108 L. Ed. 2d 504 (1990). The EEOC is clutching at straws when it argues that the Board's failure to research these principles suggests that it intended to retaliate against its employees.
When confronted with a motion for summary judgment, a party who bears the burden for proof on a particular issue "must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Petru v. City of Berwyn, 872 F.2d 1359, 1362 (7th Cir. 1989) (emphasis in original) (quotations omitted). Because the EEOC has failed to establish a genuine issue of fact as to the Board's motives, we grant summary judgment in favor of the Board. It is so ordered.
Dated May 2, 1990