United States District Court, N.D. Illinois, Eastern Division
August 24, 2005.
BRUCE HIGGINS, CRAIG RUTZ and THOMAS LUDVIK, Plaintiffs,
VILLAGE OF RIVER FOREST, a Municipal Corporation, Defendants.
The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
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
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
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.
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
was a former Acting Chief, Operations Commander and
had greater supervisory and training experience
Similarly, Ludvik notes that he:
was Sullivan's supervisor
held higher rank and credentials (Detective v.
was more experienced outscored Sullivan on a test administered to
applicants for the Deputy Chief of Administration
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 discriminates against
the majority.'") (internal citation omitted). As with Rutz and
Ludvik's age discrimination claims, they have provided enough
evidence to impose the minimal burden on the Village of
explaining why it chose Sullivan for the Deputy Chief position.
And as above, while the Village may have colorable reasons for
selecting Sullivan, they are unsupported by proper citation to
the record. Summary judgment is denied as to Counts VI and X.
The Village also contends that summary judgment is appropriate
as to Higgins and Rutz's retaliation claims. To establish a prima
facie case for unlawful retaliation, a plaintiff must prove three
elements: (1) he engaged in statutorily-protected expression; (2)
he suffered an adverse employment action; and (3) there was a causal link
between the protected expression and the adverse action. Krause
v. City of La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001).
Higgins complains that he was refused sick leave, was ordered to
document personal and private conversations, was penalized for
refusing to do so, was prohibited from having contact with the
Village's police department, and that his friends, fellow
officers and acquaintances were questioned frequently about his
sick leave. Rutz maintains that his reassignment from the
position of Crime Prevention Officer to patrol officer
constituted an adverse employment action.
The Village contends that summary judgment is appropriate as to
Higgins' claims because a denial of a brief sick leave request is
not an adverse employment action, but ignores Higgins' evidence
supporting other instances of alleged retaliation, such as the
prohibition against contact with the police department, which the
court already has explained may raise a fact question as to
whether the adverse action was sufficiently significant. See
Higgins v. Village of River Forest, No. 03 C 1907, Docket No.
47, at 4 (N.D. Ill. Mar. 26, 2004). The Village also maintains
that it may punish Higgins for disobeying the direct orders that
Higgins claims constitute retaliation, but this argument fails
because an employer may not insulate itself from liability based
on the proposition that even unlawful orders must be followed.
See, e.g., Johnson v. University of Cincinnati, 215 F.3d 561,
579 (6th Cir. 2000) ("[A]n employee is protected against employer
retaliation for opposing any practice that the employee
reasonably believes to be a violation of Title VII . . .
including . . . refusing to obey an order because the worker
thinks it is unlawful under Title VII."). Summary judgment is
denied as to Counts II and III.
Finally, the Village contends that summary judgment is
appropriate as to Rutz's retaliation claims because Rutz has not
suffered an adverse action and because there is no causal
relationship between the Rutz's alleged adverse action and the
protected conduct. The former argument is without merit as Rutz has set forth sufficient
evidence to raise a fact question as to whether his assignment to
"mundane" new duties as patrol officer (e.g. reporting whether
or not street lights were burned out) constituted an adverse
employment action. Plaintiffs, however, do not even respond to
the causality argument.*fn4 Absent an argument that there is
evidence tending to raise a fact question as to whether Rutz's
reassignment to the position of patrol officer was in some way
motivated by his allegations of discrimination, Rutz must be
deemed to have waived any such contention, and the court grants
summary judgment as to Counts V and VII.
For the foregoing reasons, the court grants defendant's motion
for summary judgment as to Counts I, V and VII of plaintiffs'
complaint and denies the motion as to the remaining seven counts.
© 1992-2005 VersusLaw Inc.