Kralman v. Illinois Dept. of Veterans' Affairs

• Decision Date: 03 June 1994
• Docket Number: No. 93-3398,93-3398
• Citation: 23 F.3d 150
• Parties: 64 Fair Empl.Prac.Cas. (BNA) 1645, 64 Empl. Prac. Dec. P 42,996 Paul H. KRALMAN, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF VETERANS' AFFAIRS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 150

23 F.3d 150

64 Fair Empl.Prac.Cas. (BNA) 1645,

64 Empl. Prac. Dec. P 42,996

Paul H. KRALMAN, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF VETERANS' AFFAIRS, Defendant-Appellee.

No. 93-3398.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 15, 1994.

Decided April 20, 1994.

Rehearing Denied June 3, 1994.

David W. Sutterfield, Fred W. Johnson (argued), Sutterfield & Johnson, P.C., Effingham, IL, for plaintiff-appellant.

John A. Kauerauf, Scott C. Helmholz (argued), Sorling, Northrup, Hanna, Cullen & Cochran, Springfield, IL, for defendant-appellee.

Before WOOD, Jr., and KANNE, Circuit Judges, and FOREMAN, District Judge. ^*

FOREMAN, District Judge.

Paul Kralman is appealing from the district court's entry of summary judgment in favor of the Illinois Department of Veterans' Affairs on Kralman's age discrimination claim. We affirm.

I. FACTS

Paul Kralman had been employed as a Veterans' Service Officer in the Department's office in Vandalia, Illinois, from May 1979 until the office was closed in August 1987 due to a lack of funding. He was given the option of drawing a pension or retaining his right of recall should the office reopen sometime in the future. Kralman chose to draw a pension.

In March 1989, the Department made plans to reopen the office. Although the Department had the right to reinstate Kralman to his prior position if it wished, the Department decided instead to open the application process to other candidates approved by Central Management Services. Kralman and three other applicants were interviewed for the position. The Department ultimately hired one of the other candidates, Lynn P. Brown.

Kralman, who was 71 at the time that he applied for reinstatement to the position, claims that he was denied the position because of his age. The Department denies that age was a factor in the decision. It asserts that Brown, who was 46 at the time, was chosen because of his superior educational background, his demeanor during the job interview, and the fact that he is a veteran with a service-connected disability.

Kralman brought suit against the Department under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634. The district court granted the Department's motion for summary judgment against Kralman on two grounds. The court first stated that Kralman could not establish a prima facie case of discrimination because the Department ultimately hired a person who also was in the age class protected under the ADEA. The court based this ruling on recent Seventh Circuit decisions which, in the court's opinion, appeared to create "a uniform requirement that persons not in the protected class must be treated more favorably in order for the plaintiff" to establish a prima facie case of discrimination. Dist.Ct.Order, at 5.

In the alternative, the court held that even assuming the plaintiff could establish a prima facie case, the plaintiff could not prove that the Department's reasons for hiring Brown were a pretext for discrimination. The plaintiff appeals from that decision.

II. ANALYSIS

The appellate court reviews summary judgments under a de novo standard. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370 (7th Cir.1992).

In order to uphold a grant of summary judgment, we must "view the record and all inferences draw from it in the light most favorable to the party opposing the motion" ... and conclude there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... Summary judgment is only appropriate when the record reveals that no reasonable jury could find for the non-moving party.

Id. (citations omitted). This standard "is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue." Id. at 370-71.

Under the ADEA, an employer may not discharge, refuse to hire, or otherwise discriminate against any individual who is age 40 or older. 29 U.S.C. Secs. 623(a), 631(a). "The plaintiff need not prove that age was the sole factor motivating the employer's decision, only that age was a determining factor in the sense that [the employment decision would not have been made] but for the employer's motive to discriminate on the basis of age." Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988).

A plaintiff may prove age discrimination by either of two methods: (1) by presenting direct or circumstantial evidence that age was the determining factor in the employment decision; or (2) by utilizing the indirect, burden-shifting method of proof that was recognized in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) for Title VII cases. Under this latter method, the plaintiff must establish a prima facie case of discrimination by proving, inter alia, ¹ that he or she was in the protected class and was otherwise qualified for the position. Satisfaction of these requirements for a prima facie case establishes a rebuttable presumption of discrimination and shifts the burden of production to the defendant to articulate lawful reasons for the employment decision. Once the defendant articulates a legitimate, nondiscriminatory reason for its actions, the presumption of discrimination dissolves and the burden shifts back to the plaintiff to prove that the defendant's proffered reasons are pretextual. Oxman, 846 F.2d at 452-53.

The appellant argues that the district court erred in holding that a plaintiff cannot establish a prima facie case under the ADEA if the defendant employer hires another individual who is also within the protected age class. He further argues that he presented sufficient evidence to create a genuine issue of material fact as to whether the Department's proffered reasons for not hiring the plaintiff were merely a pretext for age discrimination.

A. Establishing a Prima Facie Case

The precedents in this circuit set forth several somewhat confusing variations of the elements required to establish a prima facie case of age discrimination. Some adaptation is inevitable given the various types of employment action--i.e., hiring, demotions, discharges--that may be at issue in the case. However, we have found variations even within a particular class of action. ²

In hiring cases, such as the case at bar, this circuit has issued at least two different versions of the prima facie requirements. In 1984, we stated that "a plaintiff must demonstrate (i) that he belongs to a protected group; (ii) that he applied and was qualified for a job for which the employer was seeking applications; (iii) that he was not hired; and (iv) that the employer continued to seek applicants." Vaught v. R.R. Donnelley & Sons Co., 745 F.2d 407, 411 (7th Cir.1984). In a case decided the following year, the wording of the first three elements in Vaught was changed only slightly, but the court substituted the following for the fourth element: "that the employer hired instead a younger person." Caldwell v. National Ass'n of Home Builders, 771 F.2d 1051, 1056 n. 2 (7th Cir.1985).

The district court acknowledged the Caldwell standard in its decision in the case at bar, but went on to adopt a third form of the test, stating:

Most of the recent age discrimination cases reported by the Seventh Circuit involve terminations or demotions of employment rather than instances of failure to hire a job applicant. However, in examining the trend among age discrimination cases asserting some form of disparate treatment, it appears that the Seventh Circuit has created a uniform requirement that persons not in the protected class must be treated more favorably in order for a plaintiff to satisfy the fourth prong of the prima facie case. Oxman v. WLS-TV, 846 F.2d 448, 455 (7th Cir.1988); Konowitz [v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir.1992) ]; Crady v. Liberty National Bank & Trust Co. of Indiana, 993 F.2d 132, 134-35 (7th Cir.1993). Therefore, this Court will follow the trend of the Seventh Circuit cases requiring that persons who are not members of the protected class must be treated more favorably in order for a plaintiff complaining of a materially adverse employment action to establish a prima facie case of age discrimination.

Dist.Ct. Opinion, at 5.

The district court's reliance upon Oxman, Konowitz, and Crady is understandable, but not persuasive. It is important to keep in mind that none of those prior cases dealt with a situation where both the plaintiff and the person who received more favorable treatment were both in the protected class. Therefore, to the extent that these cases suggest that a plaintiff cannot prevail under those circumstances, that suggestion would be merely dictum. More significantly, a careful reading of Oxman shows that the court was merely suggesting one way in which a plaintiff could meet the prima facie case; it did not state that its variation of the fourth element is a sine qua non for recovery. ³

A similar situation exists in Konowitz and Crady. In stating that a plaintiff must show that the employer "treated others outside the protected class more favorably than [the plaintiff] was treated," Crady cites to the Konowitz decision. Konowitz, however, states that a plaintiff "may" establish a prima facie case by demonstrating those facts. Thus, the opinion also suggests that its formulation of the standard is one way that a plaintiff may establish a prima facie case; it does not foreclose other variations. ⁴

The Department suggests that the district court correctly read Oxman, Crady, and Konowitz as holding that a plaintiff cannot establish a prima facie case under the ADEA case if the employer ultimately hires another individual who is also in the protected class. However, this view is contrary to the decisions of an overwhelming majority of other circuits that have expressly recognized that age discrimination may occur under such circumstances. ⁵ Indeed, it is considered "hornbook law" that the ADEA action can be based...