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United States District Court, Northern District of Illinois

April 23, 2003


The opinion of the court was delivered by: James Zagel, District Judge


Gwendolyn Prater has alleged that Joliet Junior College ("JJC") violated the Age Discrimination in Employment Act (ADEA). JJC has moved for summary judgment, which is proper when the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or discharge any individual and otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of age." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000). To maintain a claim under the ADEA, employees must establish that they would not have suffered adverse treatment "but for" the employer's motive to discriminate based on the employee's age. Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995). To make a showing of discrimination to defeat a motion for summary judgment, a plaintiff may either present direct or indirect evidence of age discrimination. Id. Under the direct method, the plaintiff may show that the employer's decision to take the adverse employment action was motivated by an impermissible purpose, such as age. Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998); Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). Direct evidence is evidence that amounts to an acknowledgment of discriminatory intent on the part of the employer, Gorence v. Eagle Food Centers, Inc., 242 F.3d 759, 762 (7th Cir. 2001); Troupe, 20 F.3d at 736, and can be found where the decision maker makes a derogatory remark concerning the plaintiff's protected class, see, e.g., Mojica v. Gannett Co., Inc., 7 F.3d 552, 561 (7th Cir. 1993). A decision maker's derogatory age-based statement is probative of intentional discrimination if it: (1) is made or relied upon by the decision maker, Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1266 (7th Cir. 1993); (2) related to the employment decision at issue, Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993); and (3) is close in time to the employment decision. Sembos v. Philips Components, No. 00 C 4651, 2003 WL 1342985, at *4 (N.D.Ill., Mar 18, 2003).

Here, summary judgment is inappropriate because JJC has failed to effectively counter Prater's alleged direct evidence. Prater alleges that Dr. Terry Irby, Prater's supervisor in 1998, told her on numerous occasions (presumably in 1998) that "I'm getting rid of older people so that I can hire in younger people. I can mold them the way I want and pay them less." Prater was subsequently terminated later in 1998 (presumably by Irby, her supervisor). Therefore, we have a decision maker (Irby) making derogatory age-based statements ("I'm getting rid . . .") related to the employment decision at issue (Prater's termination) that is close in time to that employment decision (1998). This constitutes direct evidence. Sembos, 2003 WL 1342985, at *4. Although Prater may not be able to state a date, time, or place in which she actually recalls hearing the alleged statements, that does not conclusively establish that Irby did not say them. Indeed, Prater allegedly has a witness — co-worker Carolyn Patrick — to the statements. Although perhaps ultimately untrue, Prater's allegations do raise a triable issue of fact.

JJC's rebuttal to Prater's offer of direct proof falls short. First, although age-related remarks can only qualify as direct evidence of discrimination if they are related to the adverse employment decision, McCandless v. Healthcare at Home Plus, No. 00 C 2426, 2001 WL 62862, at *4 (N.D.Ill. Jan. 25, 2001), the statement at issue in McCandless was made by a non-decision-maker stating that age was the reason the plaintiff chose to end her employment with the employer instead of taking a new position but not that age was the reason the plaintiff's specific position was eliminated. Here, Irby's alleged statements that she was "getting rid" of "older people" is directly related to Prater's eventual termination in a manner that the statement is McCandless is not. In addition, while an employee's self-serving statements, with nothing more, are not enough to overcome a defendant's legitimate explanation for the alleged action, see Hall v. Gary Community School Corp., 298 F.3d 672 (7th Cir. 2002), that principle is applicable in the context of the indirect method of discrimination proof (and more specifically, refers to the plaintiff's burden to prove pretext in rebutting an employer's legitimate explanation for adverse employment action). The principle articulated in Hall is not applicable in the context of the direct method offered by Prater.

Finally, if there are two motives for the employment decision at issue, each sufficient to account for the decision, then the fact that one of the motives is illegal and improper does not support a remedy, as long as the employer would have made the same decision on the legitimate ground alone. Dranchak v. Akzo Nobel Inc., 88 F.3d 457, 461 (7th Cir. 1996). However, JJC has not conclusively established that it would have terminated Prater because of the expiration of a grant primarily used to fund her position and her expressed reluctancy to assume different job responsibilities in light of this. At most, the facts which JJC claims establish its legitimate ground for her termination — paragraphs 10, 38, and 40 of its material facts statement — establish that it was becoming "increasingly difficult" to fund Prater's job in light of the grant's upcoming expiration and that she and Irby had a disagreement regarding her role after the expiration. They do not prove that JJC was going to terminate Prater because she refused to work with non-public aid clients.

Accordingly, summary judgment is not appropriate. However, due to the fact that Prater made no attempt to answer JJC's summary judgment motion, I strongly invite JJC to submit a motion for reconsideration or an entirely new motion for summary judgment, specifically addressing the issues raised in this decision.

For the above reasons, JJC's uncontested Motion for Summary Judgment is DENIED.


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