A Seventh Circuit panel demonstrates why the “same actor” inference probably has no place at the summary judgment stage, reversing summary judgment in an ADEA demotion case involving a 69-year-old bilingual teacher.
In Filar v. Board of Education of the City of Chicago, No. 07-1275 (7th Cir. May 22, 2008) (attached below), the plaintiff was a full-time substitute bilingual instructor in the Polish language. At budget time in 1999, her principal (Dr. John Garvey) found himself short of funding for bilingual teaching positions. As the panel explained, “[when [a] school does not have enough funded positions for all its teachers, the principal may have to ‘displace’ unfunded teachers; that is, recategorize either tenure-track or fulltime substitute teachers as ‘cadre’ substitutes who must then fill vacancies in other city schools as they arise.” Thus availing himself of the authority to reshuffle staff, Dr. Garvey made sure that two other Polish-language bilingual instructors (both significantly younger than the plaintiff) were assigned to tenure-track positions. This left Filar as the odd-teacher-out, and she was dropped into the “cadre” corps. At age 69 and with osteoarthritis, the prospect of moving from school to school during the year was daunting.
Although the district court granted summary judgment on both her ADEA and ADA claims (the latter regarding the osteoarthritis), the Seventh Circuit reversed on the age claim. It cleared away a threshhold argument about whether the two younger teachers could be regarded as “comparables” for purposes of the prima facie case. The district court had been persuaded that because the two teachers were tenure-track, they were materially different from Filar and were thus not valid comparables. But as the record revealed, the different categories (with their increasing degrees of job security) themselves were manipulable by the principal:
“But where seniority is unmoored from everything but the discretion of the employer, the simple fact that the comparator is more senior to the plaintiff may not be dispositive, even where the employer must credit seniority in employment decisions. An employer could exercise its discretion in conferring seniority in a discriminatory fashion, making an immediately subsequent employment action based on seniority discriminatory as well. In a related context, we have held that an ’employer cannot frustrate the statute merely by assigning every employee a different job title.’ Bellaver v. Quanex Corp., 200 F.3d 485, 494 (7th Cir. 2000). Similarly, an employer cannot defeat a claim of discrimination by giving younger employees greater seniority rights immediately before displacing an older, but less senior, employee.”
The school board also argued that Dr. Garvey, as the “same actor” who hired Filar at age 62, was unlikely to victimize her because of her age. But the panel responded that such an “inference” violates the premise of summary judgment that the record be construed in the light most favorable to the non-movant:
“[T]he fact that a worker was within the protected class when hired might not be as telling in some cases: An employer may assume an over-forty employee is productive when hired but not years later. It may be reasonable to assume that Dr. Garvey did not have an ‘aversion to older people’ because he hired Filar when she was 62. But it’s just as reasonable to assume that Dr. Garvey viewed Filar as productive at 62 but not at 69. Second, placing too strong a reliance on an inference of nondiscrimination may go too far at the summary judgment stage. In Filar’s case, this inference would be in favor of the party moving for summary judgment. But the Supreme Court [in Reeves] and this Court have recognized that summary judgment in discrimination cases should not be treated differently than other kinds of cases.“
Good opinion to stash away for future use in Seventh Circuit cases.