as a whole has hired only one full-time speech-language pathologist who splits her time between three schools.
As for the school board's stated concern for treating alike all retirees who wished to return, Kastel points out that, in fact, several retirees have been re-employed by the district, albeit not in formal teaching positions. For instance, Beverly Donnenberg was re-hired to do tutoring; Marcia Hochberg runs the French Club for a small annual stipend. These two teachers, who were among the five teachers who had sought re-employment following their 1994-95 retirement, were listed on the books as consultants. Maryann Jiganti and Karen Zajac, both of whom retired at the end of the 1993-94 school year, were re-employed to perform various services for the district at $ 4,000 annually. The defendants argue that they did not offer Kastel any of these positions because they understood that Kastel was only interested in a part-time teaching position; Kastel rejoins that she never said she would only accept a part-time teaching position, and that she would have considered any type of position but the defendants never offered her any. Regardless of the outcome of this dispute, it is undisputed that the defendants' decision not to re-hire 5 retirees did not preclude all re-employment, and likewise undisputed that Kastel was not considered for any openings of any kind after she retired.
Kastel's final argument on pretext attacks the heart of the defendants' proffered reasons: that they refused to re-hire 5 retirees because it would be too expensive. Kastel contends that she would be no more expensive than any other employee, because once she retired she would no longer be a tenured employee entitled to her highest salary grade, but instead would command only the standard entry-level salary. Indeed, she claims, she would actually be less expensive than other potential candidates, because the speech-language pathologist position now requires a master's degree, which establishes a higher starting salary, while she is eligible only for the bachelor's degree-level salary despite being formally qualified for speech-language pathologist positions. As for the fact that the district would also have to pay the equivalent of her last, $ 61,675 salary into her pension account over five years under the 5 program, Kastel points out that the district would have to pay the same amount in any case, regardless of whether they re-employed her in a new position after retirement. The proper comparison is thus between her starting salary and that of any other candidate, without taking her pension payments into account.
On this one point--whether the district's stated fiscal concerns were a pretext for age discrimination--we cannot conclude that the plaintiff has shown pretext. As noted above, in assessing pretext we look only to whether the reasons offered by the employer are genuine, not whether they are objectively correct or wise. The defendants have submitted an affidavit from the school district's Business Manager, Shelley Clark, stating that the district believed it would have to re-hire Kastel for any post-retirement part-time teaching position at a salary based on a pro rata portion of her last salary. Thus, Kastel's salary for a half-time position would have been $ 30,388, far more than the comparable starting salary for someone new to the school system. Clark aff. P 6. Other school board officials have also testified that they understood that the part-time salary for Kastel (and other retirees) would be based on their last, higher salaries, not on current starting salaries for unexperienced teachers. See van der Bogert dep. at 19. Nina Goldstein, the only teacher who was re-hired into a formal part-time teaching position after her 5 retirement, was paid based upon her most recent pre-retirement salary. van der Bogert reply aff. P 9. The parties do not ever appear to have discussed the possibility that other retirees who sought further work might agree to accept a lower post-retirement salary.
Kastel has not come forward with any evidence that casts doubt on the genuineness (as opposed to the correctness) of the defendants' belief that her part-time salary would be higher than that of a new hire. Nor has she offered any evidence that such cost differences were not truly a source of concern to the district. Thus, we conclude that one of the defendants' proffered reasons for not re-hiring Kastel--fiscal concerns--has not been rebutted effectively. Nevertheless, we are not necessarily compelled to grant summary judgment on Kastel's age discrimination claim. Under certain circumstances, a plaintiff may "survive summary judgment even though [she] has failed to rebut all of the reasons proffered by the employer for an adverse job action." Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 937-38 n.7 (7th Cir. 1996) (citing Russell v. Acme-Evans Co., 51 F.3d 64, 69-70 (7th Cir. 1995) and Wolf v. Buss (America) Inc., 77 F.3d 914, 920 (7th Cir. 1996)).
We recognize that, as the Supreme Court stated in Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993), "when the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears." The problem is that here, we cannot conclude that "factors other than age"-- i.e., fiscal concerns--were the sole motivation for the defendants' refusal to re-hire Kastel in any capacity. Kastel has submitted some direct evidence of age discrimination, i.e., Ogata's and van der Bogert's brief references to the replacement of older teachers with younger ones, and the defendants' reliance on the stereotype-based "continuity" argument. We place particular weight on the defendants' implicit contention that older workers are necessarily "short-term" workers whose employment will detract from the district's goal of "continuity," a contention for which there is no evidentiary basis and that tends to cast doubt on the genuineness of the other reasons proffered by the defendants. Kastel has also effectively rebutted the district's purported need for full-time rather than part-time speech-language pathologists. On the other hand, although Kastel's rebutted the district's "equity" rationale by showing that it is contradicted by the district's conduct in re-hiring other retirees, that showing also undermines her contention that the defendants were motivated by an animus against older workers.
Viewing all of this evidence together, and drawing all reasonable inferences in Kastel's favor as we must, we conclude that the combination of direct and indirect circumstantial evidence raises a genuine issue as to whether "inaccurate and stigmatizing stereotypes" regarding older workers' commitment and productivity were at least one motivating factor underlying the defendants' decisions. "No one piece of evidence need support a finding of age discrimination, but rather the court must take the facts as a whole." Huff v. UARCO Inc., 122 F.3d 374, 385, 1997 U.S. App. LEXIS 20880 (7th Cir. 1997). Under the burden-shifting approach enunciated in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977) for mixed-motive cases, once a plaintiff has demonstrated that an unlawful reason was a motivating factor in the employer's decision, the defendants have the burden of showing that they would have made the same decision even in the absence of the unlawful reason. Because the defendants have submitted no evidence on this issue, they have not carried their burden on summary judgment to show that there are no issues of material fact.
Frankly, we have grave doubts about whether the mosaic of evidence
put forward by Kastel will prove sufficient to sway a jury at trial. However, "[a] judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Because we find that Kastel has raised a genuine issue that must be resolved at trial, we deny the defendants' summary judgment motion as to Count I.
Count II - Retaliation Claim
Kastel next claims that the defendants continued to deny her re-employment in retaliation for her claims of age discrimination. In order to establish a prima facie case of retaliation, Kastel must show that (1) she engaged in statutorily protected expression, (2) she suffered an adverse action by the employer, and (3) a causal link exists between the protected expression and the adverse action. Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 195 (7th Cir. 1994). The defendants contend that the evidence does not establish any of these three elements, let alone all of them.
The undisputed facts show that, on May 31, 1995, Kastel forwarded her resume and a letter intended to serve as an application for post-retirement employment to van der Bogert. Although this application was denied, on September 5, 1995, van der Bogert wrote Kastel in response to her August 15, 1995 re-application, promising to keep the resume Kastel had sent in May "on file." Pl.'s 12(N) Statement, Ex. 5. Shortly thereafter, on September 12, the Winnetka Education Association, the local teacher's union to which Kastel belonged, filed a grievance protesting the defendants' decision not to re-hire Kastel. Kastel filed her EEOC claim, the attachments to which referred to retaliation for claims of age discrimination, on October 17, 1995.
Several openings for part-time speech-language pathologists were posted during the fall of 1995, but Kastel was not considered for any of them.
There is no evidence that Kastel ever specifically mentioned or complained of age discrimination to any of the defendants. Although she protested the defendants' broad decision not to re-hire any retirees from the time she first learned of it in February 1995, there is no evidence that Kastel told anyone that the defendants were motivated by an animus against older workers until she filed her EEOC charge on October 17. Thus, the defendants cannot have retaliated against her for complaints of age discrimination prior to that date. On the other hand, as of October 17, 1995 she must be considered to have engaged in protected conduct. Thereafter, she was denied re-employment while other, less experienced teachers were hired in her place. The temporal proximity between these events gives rise to a reasonable inference that a causal connection may exist. See McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) ("a closely related sequence of events is sufficient to present a prima facie case," including the causal link). We also note that although other retirees were re-employed by the defendants, Kastel was not considered for any openings after she retired.
Just as with any employment discrimination claim, once a prima facie case of retaliation has been made out, the burden shifts to the defendants to articulate a legitimate, nondiscriminatory reason for the adverse employment action. The plaintiff then must show that the reason is a pretext for discrimination. See id. at 797. Here, the defendants protest that the school board initially decided not to re-hire retirees in 1993-94, and simply maintained the same policy consistently thereafter, and that it was this unchanging policy, not any action by Kastel, that led to the refusal to re-hire Kastel after she retired on August 1, 1995. While the overall premise of this argument may be correct, the facts do not support the defendants' contention that they had an unchanging policy of flatly refusing to re-employ any retirees. As mentioned above, retirees other than Kastel were re-hired in various capacities following both the 1993-94 and 1994-95 retirements. These facts at least raise an inference that the defendants were retaliating against Kastel for rocking the boat with her age discrimination claim. In considering a motion for summary judgment, this court cannot weigh competing evidence or engage in credibility determinations. Because both those tasks are required by the evidence submitted on this issue, we find that Kastel has raised a genuine issue of material fact as to whether the defendants' actions after October 17, 1995 constituted retaliation for her complaints of age discrimination.
Count VI - Breach of Contract Claim
The defendants also attack Kastel's claim that they breached a contract (or perhaps broke a promise
) when they decided not to re-hire her for the 1995-96 school year. Under Illinois law, a plaintiff must establish the following elements to prevail on a breach of contract claim: (1) the existence of a valid and enforceable contract, (2) performance by plaintiff, (3) breach by defendant, and (4) injury to plaintiff resulting from that breach. See Berry v. Oak Park Hosp., 256 Ill. App. 3d 11, 19, 628 N.E.2d 1159, 1165, 195 Ill. Dec. 695 (1st Dist. 1993).
The defendants argue that Kastel cannot show that there was any valid and enforceable contract, and we agree. Kastel herself admits that she never received a formal employment offer for the 1995-96 school year from anyone. Kastel contends, however, that she was led to believe that she would be re-employed because of various interactions she had with school district personnel: former superintendent Monroe remained silent when Kastel stated her belief that she could be re-employed after retirement, even without a formal guarantee of future employment; and early in 1995 her principal Sandy Karaganis began preparations with her to share her current full-time position with a new teacher, Ghita Lapidus, during the 1995-96 school year. Neither of these interactions can be read as an actual offer, however. Even as to the agreement that Kastel supposed she had with Karaganis to re-hire Kastel after retirement, Kastel had no idea what the terms of the agreement were: "It never got that far, so I really didn't have that understanding." Kastel dep. at 113. No meeting of the minds can be inferred from such circumstances.
Kastel next argues that even if the facts do not support the existence of a contract, she has a claim for promissory estoppel. To state a promissory estoppel claim under Illinois law, the plaintiff must establish that he or she reasonably and justifiably relied, to his or her detriment, on an unambiguous promise, and that such reliance was foreseeable by the promisor. See M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1408 (7th Cir. 1991). Once again, the first element--an unambiguous promise--is problematic for Kastel. Neither her discussions with Monroe nor those with Karaganis amount to a clear and definite promise that Kastel should reasonably have relied upon. Accordingly, we grant summary judgment in favor of the defendants on the breach of contract and promissory estoppel claims in Count VI.
Count IX - Retaliation for Exercise of Pension Rights/Equal Protection
In her last remaining count, brought against individual defendants van der Bogert and Ogata only, Kastel alleges that those defendants retaliated against her for choosing to exercise her pension rights by refusing to rehire her, and that this refusal discriminated against her in violation of the equal protection clause of the Illinois Constitution. ILL. CONST., art. 1, § 2. Kastel alleges that she, as a member of the class of persons who elected early retirement, was denied the right to equal protection of the laws in that her applications for post-retirement employment and those of other early retirees were not considered by the defendants.
The defendants claim that they are immune from liability under 745 ILCS 10/2-201, the Illinois Tort Immunity Act, which provides that governmental employees performing discretionary functions may not be held liable for injuries resulting from discretionary acts or omissions. We note that Kastel's equal protection claim is based on intentional actions, and that some Illinois appellate courts (but not others) have held that the Act contains an exception for willful and wanton misconduct, which would include intentional acts. Compare Johnson v. Mers, 279 Ill. App. 3d 372, 380-81, 664 N.E.2d 668, 675-76, 216 Ill. Dec. 31 (2d Dist. 1996) (no willful and wanton exception exists); Collins v. Metcalfe, 1996 U.S. Dist. LEXIS 16310, No. 95 C 4231, 1996 WL 637592, at *3 (N.D. Ill. Oct. 18, 1996) (same, relying on Johnson) with Munizza v. City of Chicago, 222 Ill. App. 3d 50, 54, 583 N.E.2d 561, 565, 164 Ill. Dec. 645 (1st Dist. 1991) (applying willful and wanton exception); Amati v. City of Woodstock, Ill., 829 F. Supp. 998, 1008 (N.D. Ill. 1993) (same, relying on Munizza). The Illinois Supreme Court has not ruled on the issue, although it recently held that a similar provision of the Illinois Tort Immunity Act, 745 ILCS 10/3-108, contained no exception for willful and wanton misconduct, applying the same statutory construction approach used in Johnson. See Barnett v. Zion Park Dist., 171 Ill. 2d 378, 391-92, 665 N.E.2d 808, 814-15, 216 Ill. Dec. 550 (1996).
We need not resolve this issue, however, because it is plain that Kastel's claim fails on the merits. As we noted in our previous opinion in this case, equal protection challenges based on the Illinois constitution are evaluated under the same standards as similar claims brought under the United States constitution. Nevitt v. Langfelder, 157 Ill. 2d 116, 124, 623 N.E.2d 281, 284, 191 Ill. Dec. 36 (1993). Applying those standards, a scheme that discriminates against a non-suspect class of people is valid so long as the government has a rational basis for the distinction. Id. at 125, 623 N.E.2d at 285. Here, the defendants claim that their decision to treat retirees differently than non-retirees has the requisite rational basis: the belief that employing retirees would cost more, and that not re-hiring retirees would conserve the school district's fiscal resources, thus ultimately advancing the resources available for children's education. Because the distinction created by the defendants was rationally related to a legitimate governmental purpose, id. at 126, 623 N.E.2d at 285, Kastel's equal protection claim cannot stand. We grant summary judgment in favor of the defendants on Count IX.
For all of the foregoing reasons, the defendants' motion for summary judgment is granted in part and denied in part. The motion is granted as to Counts VI and IX. The motion is denied as to Counts I and II. A Final Pretrial Order, together with any motions in limine, will be due on September 22, 1997. The court will hold a status hearing on September 24, 1997 at 9:00 a.m. for the express purpose of setting a firm trial date for the remaining claims in this lawsuit.
United States District Judge
August 28, 1997