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October 31, 1996

JOAN KASTEL, Plaintiff,

The opinion of the court was delivered by: CASTILLO

 Plaintiff Joan Kastel sues the Winnetka Board of Education, its Superintendent, Rebecca van der Bogert, and the President of District 36, Edward Ogata. Her claims include age and sex discrimination for failure to hire (Counts I and III respectively); retaliation for Kastel's opposition to the alleged age and sex discrimination by the Board (Counts II and IV respectively); breach of contract (Count VI); interference with pension rights (Count VII); and an Illinois equal protection claim based on retaliation for exercising pension rights (Count IX). *fn1" The defendants' motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) is presently before the Court.


 The following facts are drawn from the allegations of the complaint, which we must take as true when considering a motion to dismiss. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). Kastel was born on August 23, 1934. In 1964, she was hired by the Winnetka Board of Education as a speech-language pathologist. She held this position for 31 years. In May, 1995, Kastel, then age 60, took early retirement under the "5" early retirement plan codified at 40 ILCS § 5/16-133.5 (1993). Under that plan, Kastel was eligible to be rehired by the Board without impairing her retirement status provided the reemployment (1) was not within the same school year in which her service was terminated, and (2) did not exceed 100 paid days or 500 paid hours in any school year. Id. § 5/16-118.

 On May 31, 1995, Kastel formally applied to fill her old position of speech-language pathologist on a part-time basis. The Board denied her application on the grounds (which she identifies as a "technicality") that there was no position available, as her own retirement was not yet effective. She was also informed that she would be reemployed on a part-time basis only on the condition that she forgo her early retirement benefits. In addition to applying for her old position on a part-time basis, Kastel applied for other part time vacancies for speech-language pathologists. She made at least one formal application for such a position on August 15, 1996. She claims that she also made informal inquiries regarding other speech-language pathologist positions, and generally let it be known that she wanted to be considered for any relevant position that was or became available. Kastel was not hired for any of these openings. Instead, every available part-time speech-language pathologist position was filled by a person younger than Kastel.

 From about May 31, 1995, through at least October 18, 1995, Kastel claims that she regularly gave the defendants notice that she intended to "pursue her rights" if she was denied part-time employment. This notice included warnings that she would file charges with the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act and Title VII of the Civil Rights Act, as well as pursue litigation of her claims. Following each denial of her applications for part-time employment, Kastel questioned the actions of the Board and threatened to file a charge of age and sex discrimination. Kastel eventually filed a charge with the EEOC on October 18, 1995. Kastel alleges that the Board told her that she would not be considered for any position because she had filed a charge of discrimination. Kastel received her right-to-sue letter from the EEOC on or about November 24, 1995, and commenced this suit. The defendants have moved to dismiss all remaining counts of the complaint.


 A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Ass'n, Inc. v Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). The court, in considering a motion to dismiss, must view all facts alleged in the complaint, as well as any reasonable inferences drawn from the alleged facts, in the light most favorable to the plaintiff. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). All ambiguities are resolved in the plaintiff's favor. Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).


 I. Age Discrimination/Failure to Rehire.

 In Count I of her Amended Complaint, Kastel alleges that the Board failed to hire her for a part-time position because of her age, in violation of the ADEA, 29 U.S.C. § 621 et seq. The defendants first argue that Count I is insufficient as a matter of law, asserting that allegations of failure to "rehire" after an employee voluntarily retires from a job do not state a claim for age discrimination. The defendants also argue that they are entitled to the benefit of the "same actor" or "hirer/firer" presumption since the same employer who hired and employed Kastel for 31 years is now charged with discrimination against her. Third, the defendants claim that Kastel has not alleged and cannot allege that a person outside the protected class was hired in her place. Finally, the defendants argue that employment decisions which tend to affect older employees more adversely than younger employees are not discriminatory, even if they are admittedly correlated to age, so long as age itself is not the determinative factor.

 To prevail on a claim for age discrimination, Kastel must prove that she was subjected to adverse employment treatment, and that "age was a determining factor in the sense that [the employment decision would not have been made] but for the employer's motive to discriminate on the basis of age." Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988). The Seventh Circuit has held that plaintiffs may prove this by presenting either direct or circumstantial evidence of discrimination. Id. The most common method of proving employment discrimination circumstantially, and the approach taken by Kastel, is the burden-shifting method of proof articulated by the Supreme Court for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and adapted to ADEA claims in Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1212 (7th Cir. 1985). This method requires Kastel to make a prima facie case, creating a presumption that the decision affecting her employment was motivated by her age. The defendants could then attempt to rebut this by offering a non-discriminatory justification for the decision. Kastel would then have the opportunity to demonstrate that this proffered non-discriminatory justification was merely a pretext for discriminatory action. However, because of the limited scope of the court's analysis in considering a motion to dismiss, all that is required of Kastel at this stage is that she make out a prima facie case. See Oxman, 846 F.2d at 453.

 Traditionally, to establish a prima facie case for failure to hire due to age discrimination, a plaintiff must allege that (1) she was a member of the protected class; (2) the employer was seeking applications for the position, she applied, and she was qualified for the position; (3) she was not hired; and (4) a younger person was hired. Caldwell v. National Ass'n of Home Builders, 771 F.2d 1051, 1056 n.2 (7th Cir. 1985). Here, Kastel was, at all relevant times, a member of the protected class of persons over 40. With respect to the second element, Kastel creates the inference that her old position was in reality open when she applied on May 31, 1995 on a part-time basis, through her allegation characterizing as a "technicality" the defendants' argument that the position was not available because her retirement was not yet effective. Kastel also alleges that she inquired of the defendants about other part-time speech-language pathologist positions. The general rule is that even informal inquiries about positions are sufficient to satisfy this element of the prima facie case. Chambers v. Wynne School Dist., 909 F.2d 1214, 1217 (8th Cir. 1990). Kastel has thus satisfied the first and second requirements for making a prima facie case.

 Additionally, Kastel has alleged that she was not hired for any of the positions for which she applied, satisfying the third element of her prima facie case. Finally, Kastel has alleged that a younger person was hired to fill each and every position for which she applied. By satisfying her fourth and final element in making a prima facie case for age discrimination/failure to rehire, Kastel has alleged facts sufficient to state a claim that she was not hired because of her age.

 This Court rejects the defendants' argument that Kastel's claim amounts to an allegation that she was not rehired because she voluntarily retired, and that this does not state a cause of action for age discrimination. This assertion is an attempt by the defendants to recast Kastel's claim in terms less favorable to her. In considering the motion to dismiss, the Court takes the plaintiff at her word with respect to the claims she pleads in her complaint. See Freeman v. Fairman, 916 F. Supp. 786, 791 n.4 (N.D. Ill. 1996). Here, Kastel claims age discrimination, and has alleged the four requisite elements established by the Seventh Circuit for making a prima facie ADEA claim. Her allegations create a reasonable inference that she was denied employment due to her age, and thus are sufficient to state a claim for age discrimination.

 We also reject the defendants' argument that the Board is entitled to the "same actor" inference. "'In cases where the hirer and firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.'" Rand v. CF Industries, Inc., 42 F.3d 1139, 1147 (7th Cir. 1994) (quoting Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)). A crucial element in creating the inference is a short passage of time between the hiring and firing. See EEOC v. Our Lady of the Resurrection Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996) (ten month time span); Rand, 42 F.3d at 1147 (two years); Proud, 945 F.2d at 797 (six months). Here, however, the passage of time amounted to 31 years. The defendants ask this Court to infer that, because the Board hired Kastel in 1964, there was no discrimination in its refusal to rehire her in 1995. The inference cannot stretch so far.

 The defendants' "same actor" argument fails for additional reasons. The inference is based on the premise that an employer who hires a person with a particular characteristic and then fires that person shortly thereafter cannot be said to have "suddenly developed an aversion to" persons with that particular characteristic. Rand, 42 F.3d at 1147. However, if the person does not have a protected characteristic when hired, then the hiring proves nothing about the employer's aversion to persons with the characteristic, and no inference can be drawn. Kastel was only 30 years old, well outside the protected class, when she was hired. The Board cannot use its hiring of her as a 30 year old in 1964 to create an inference that it did not discriminate against her because of her (60 year old) age in 1995.

 An additional flaw in the defendants' argument is that there are no allegations that the same individual was involved in both the 1964 and 1995 decisions. The "same actor" inference requires that the decisionmaker was the same for both the hiring and the adverse employment action. See id. (inference applies "where the hirer and firer are the same individual"). The "same actor" inference cannot properly be imputed to the organization as a whole. The Board also claims that the inference can be based on the fact that it continued to employ Kastel until the day she retired. However, merely not firing Kastel does not create an inference that the Board did not discriminate against her when she applied for reemployment. For all of these reasons, the Court rejects the defendants' arguments based on the same actor inference.

 In their reply memorandum, the defendants' belatedly contended that they refused to rehire Kastel because her seniority made her a more expensive employee, not because of her age. This argument fails for several reasons. First, this Court will not consider new arguments raised for the first time in a reply brief. See Wilson v. O'Leary, 895 F.2d 378, 384 (7th Cir. 1990). Second, this argument raises a substantive defense (a non-discriminatory justification for the defendants' actions) that goes beyond the allegations of the complaint. Accordingly, it is not properly considered by this Court on a motion to dismiss. See Bonilla v. City of Chicago, 809 F. Supp. 590, 595 (N.D. Ill. 1992).

 The defendants' next assertion, that Kastel has failed to state a claim for age discrimination because she could have remained in the defendants' employ had she not retired, is simply irrelevant. Kastel claims that the defendants did not properly consider her applications because of her age. Her claim is no less valid because of her decision to take advantage of the statutory early retirement plan.

 Finally, the defendants argue that Kastel has not alleged, and cannot allege, that non-protected persons were hired in her place. She need not do so, however. In a recent decision, the Supreme Court held that in making a prima facie case, an ADEA plaintiff is not required to show that he or she was replaced by a person outside the protected class. O'Connor v. Consolidated Coin Caterers Corp., 134 L. Ed. 2d 433, 116 S. Ct. 1307, 1310 (1996). The Court reasoned that the ADEA protects against discrimination based on age, not membership in a class. Id. "The fact that one person in a protected class lost out to another person in the protected class is thus irrelevant, so long as he lost out because of age." Id. After O'Connor, Kastel need only allege that a younger person, whether or not a member of the protected class, was hired in her place. This she did.

 We thus reject all of the defendants' arguments, and find that Kastel has adequately pled a prima facie case of age discrimination. The motion to ...

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