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August 24, 2005.

VILLAGE OF RIVER FOREST, a Municipal Corporation, Defendants.

The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge


Bruce Higgins, Craig Rutz and Thomas Ludvik have sued their employer, the Village of River Forest Police Department (the "Village"), charging it with discrimination and retaliation under Title VII, 42 U.S.C. § 2000e, et seq. and discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Presently before the court is the Village's motion for summary judgment. For the reasons stated below, that motion is granted in part and denied in part.

I. BACKGROUND*fn1 The following facts properly before the court are relevant to the motion. Higgins and Rutz are Caucasian males who are lieutenants in the Village's police department. At the time periods relevant to the complaint they were 53 and 51 years old, respectively. Ludvik, also a Caucasian male, is a sergeant with the department who was 47 years old during the time periods alleged in the complaint. Higgins held the position of Operations Commander and Rutz the position of Administrative Division Commander until early 2002. At that time, the Village restructured the police department and replaced those positions with two new positions: Deputy Chief of Operations and Deputy Chief of Administration. Twelve applicants, including the plaintiffs, applied for these new positions.

  A panel interviewed all the prospective candidates and made recommendations to Chief Michael Holub. Holub appointed Sergeant Robert Jandrisits, a 50 year old Caucasian male, to the Deputy Chief of Operations position and Patrol Officer Kendra Sullivan, a 38 year old Caucasian female, to the Deputy Chief of Administration position. The plaintiffs subsequently filed charges of age and sex discrimination with the EEOC, and brought this suit after receiving their right-to-sue letters. The complaint reiterates the EEOC charges, and also alleges that the Village retaliated against Higgins and Rutz for complaining about the alleged discriminatory acts. Counts I, IV and IX of the complaint charge the Village with discriminating against Higgins, Rutz and Ludvik on the basis of age, Counts VI and X charge the village with discriminating against Rutz and Ludvik on the basis of gender, Counts II and III allege that the village improperly retaliated against Higgins for complaining about alleged age discrimination, and Counts V and VII charge the Village with retaliation based on Rutz's complaints of age and gender discrimination.*fn2


  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party opposing summary judgment may not rest upon the pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is no genuine issue for trial unless there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

  A. Age Discrimination.

  The Village first challenges Higgins' age discrimination claim, noting that the individual chosen for the job was only three years Higgins' junior. To prevail on his claim, Higgins must show either direct evidence of discriminatory intent or proceed under the burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the latter method, Higgins must present evidence tending to show: (1) he was a member of the protected class (here, persons 40 years old or older); (2) he was qualified for the job for which he applied; (3) he was subject to a materially adverse employment action; and (4) a substantially younger employee was treated more favorably. Zaccagnini v. Charles Levy Circ. Co., 338 F.3d 672, 675 (7th Cir. 2003). The Village challenges only the fourth McDonnell Douglas element, arguing that the selection of a 50 year old over a 53 year old does not support a prima facie case of age discrimination. See, e.g., Bennington v. Caterpillar Inc., 275 F.3d 654, 659 (7th Cir. 2001) (five year age difference insufficient, by itself, to establish prima facie case of age discrimination where both plaintiff and those allegedly favored over him were members of the protected class).

  Higgins counters that he has evidence of discrimination that provides either evidence of direct discrimination or helps establish a prima facie case under McDonnell Douglas. According to Higgins, he was the only candidate asked during the interview process about his plans to retire, and Chief Holub commented on Higgins' alleged impending retirement on other occasions. Higgins argument fails in this circuit because an employer's inquiries concerning an employee's retirement plans are not treated as evidence of unlawful conduct for purposes of establishing ADEA claims. Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7th Cir. 1992) (asking an employee when he plans to retire is not evidence of discrimination under the ADEA because "a company has a legitimate interest in learning its employees' plans for the future, and it would be absurd to deter such inquiries by treating them as evidence of unlawful conduct"). See also Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544 (6th Cir. 2004) (employer's concern about pending retirement is not the same as bias against age); Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 13 (1st Cir. 1998) (manager's questioning regarding age of plaintiff and his retirement plans were a "textbook example of an isolated remark which demonstrates nothing"). In fact, the evidence before the court suggests that it was Higgins who either first raised the issue of his retirement with the Village, or at the very least did nothing to dispel its impression that he intended to retire in the near future. See Holub Dep. Ex. 20 (performance evaluation signed by Higgins indicated that he had attended a "pre-retirement seminar in anticipation of separating from active duty in the next year").

  Higgins also argues that his age discrimination claim should survive because the entire selection process was a sham. Specifically, Higgins points to an application to attend a law enforcement seminar executed by Jandrisits which listed his rank as "Deputy Chief" even though the Village had yet to select the new Deputy Chiefs as of the date of the application. Perhaps the selection process was rigged from the outset (an inference to which Higgins is entitled at the summary judgment stage), but evidence of unfairness is not always evidence of age discrimination, particularly when the goal of the alleged scheme is to replace one quinquagenarian with another. Because Higgins has set forth no direct evidence of age discrimination nor made a prima facie case under McDonnell Douglas, the court grants summary judgment as to Count I of plaintiffs' complaint.

  The Village contends that summary judgment also is appropriate as to Rutz and Ludvik's age discrimination claims because discovery has failed to produce evidence of discrimination, but the Village's argument fails as to these plaintiffs. Rutz and Ludvik were vying for a position ultimately filled by a 38-year-old, which distinguishes their claims from Higgins' in two respects. First, the age difference between Sullivan and Rutz and Ludvik is significantly greater than the less than five year gap separating Higgins and his replacement Jandrisits. In fact, Rutz — who is 13 years older than Sullivan — can make his prima facie case based on this age difference alone. See, e.g., Hartley v. Wisconsin Bell, 124 F.3d 887, 893 (7th Cir. 1997) (ten year age difference "presumptively substantial" for purposes of determining whether a plaintiff can make prima facie case). In addition, unlike Jandrisits, the 38-year-old Sullivan is not a member of the protected class to which Rutz and Ludvik belong (40 and above for purposes of the ADEA). Although Ludvik falls just short of the ten year presumption announced in Hartley, in the court's view he has established a prima facie case because the person who received more favorable treatment was not a member of the protected class, and because the nine-year-plus age difference between himself and Sullivan is sufficiently significant. See, e.g., Owens v. Top Transp. Services, Inc., 168 F. Supp. 2d 866, 869 (N.D. Ill. 2001) (holding that an age disparity just short of ten years can be presumptively substantial for purposes of establishing a prima facie case and noting that "[t]he McDonnell Douglas analysis is not rigid, mechanized, or ritualistic").

  Because Rutz and Ludvik have established their prima facie cases, the burden shifts to the Village to articulate a legitimate, nondiscriminatory reason for not selecting these plaintiffs. Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 676 (7th Cir. 2003). This burden is slight, requiring the Village to provide only a "facially legitimate" reason for its decision. Id. If the Village can do so, the burden of proof reverts to plaintiffs to demonstrate that the proffered reason is pretext. Id. The Village insists that Sullivan was chosen because she was "best suited for the job," but its LR 56.1 statement is completely silent as to any of Sullivan's qualifications.*fn3 Slight though the Village's burden is, it has not been met here, so resolution of this issue must wait until trial. The Village's motion is denied as to Counts IV and IX. B. Gender Discrimination.

  Rutz and Ludvik also charge the Village with gender discrimination under Title VII. As with age discrimination, plaintiffs may offer direct evidence of gender discrimination or proceed under the McDonnell Douglas burden-shifting framework. Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999). Rutz and Ludvik have opted for the latter approach. The Seventh Circuit permits reverse gender discrimination claims to proceed under McDonnell Douglas, with the caveat that the majority employee show, in lieu of demonstrating membership in a protected class, that there are "background circumstances" giving rise to an inference of discrimination. Id. at 456-57. Such background circumstances include superior qualifications on the part of the rejected employee or an employer's expression of intense interest in hiring a person from a protected class. Id. at 457.

  The Village contends that the record is devoid of any inference of reverse discrimination. Rutz and Ludvik argue in response that the Village urged Sullivan to apply for the position and then selected her despite the plaintiffs' superior qualifications. Rutz notes that he:
• was Sullivan's supervisor
• held a much higher rank (Lieutenant v. Patrol Officer)
• was a former Acting Chief, Operations Commander and Administrative Commander
• had greater supervisory and training experience
Similarly, Ludvik notes that he:
• was Sullivan's supervisor
• held higher rank and credentials (Detective v. Patrol Officer)
• was more experienced • outscored Sullivan on a test administered to applicants for the Deputy Chief of Administration position
  The Village does not seriously dispute the existence of Rutz and Ludvik's allegedly superior qualifications, but nevertheless dismisses them as "vague rhetoric," arguing that the qualifications (with the possible exception of the test scores) are merely indicia of a longer tenure with the department, and employers are entitled to make decisions on the basis of factors other than seniority. The Village certainly is entitled to consider factors beyond seniority when promoting its employees, but such arguments go to the proffered reasons why Sullivan was hired rather than to the plaintiffs' prima facie case. All things being equal, it is the irrational employer that foregoes candidates with superior training, experience and track records of promotion in favor of a candidate who does not possess these attributes. See, e.g., Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993) ("[I]f a more qualified [majority] applicant is denied promotion in favor of a minority applicant with lesser qualifications, we think that in itself raises an inference that the defendant is `that unusual employer who ...

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