Kastel v. Winnetka Bd. of Educ., Dist. 36

• Decision Date: 31 October 1996
• Docket Number: No. 96 C 1008.,96 C 1008.
• Citation: 946 F.Supp. 1329
• Court: U.S. District Court — Northern District of Illinois
• Parties: Joan KASTEL, Plaintiff, v. The WINNETKA BOARD OF EDUCATION, DISTRICT 36, d/b/a The Winnetka Public Schools, et al., Defendants.

946 F.Supp. 1329

Joan KASTEL, Plaintiff, v. The WINNETKA BOARD OF EDUCATION, DISTRICT 36, d/b/a The Winnetka Public Schools, et al., Defendants.

No. 96 C 1008.

United States District Court, N.D. Illinois, Eastern Division.

October 31, 1996.

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Mark D. DeBofsky, Richard Quentin Holloway, DeBofsky & DeBofsky, Chicago, IL, for plaintiff Joan H. Kastel.

Paulette A. Petretti, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicago, IL, Philip H. Gerner, III, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicago, IL, for defendants Winnetka Board of Education, District 36, Rebecca Van Der Bogert, Edward Ogata, M.D.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiff Joan Kastel sues the Winnetka Board of Education, its Superintendent, Rebecca van der Bogert, and the President of District 36, Edward Ogata. Her claims include age and sex discrimination for failure to hire (Counts I and III respectively); retaliation for Kastel's opposition to the alleged age and sex discrimination by the Board (Counts II and IV respectively); breach of contract (Count VI); interference with pension rights (Count VII); and an Illinois equal protection claim based on retaliation for exercising pension rights (Count IX).¹ The defendants' motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6) is presently before the Court.

RELEVANT FACTS

The following facts are drawn from the allegations of the complaint, which we must take as true when considering a motion to dismiss. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). Kastel was born on August 23, 1934. In 1964, she was hired by the Winnetka Board of Education as a speech-language pathologist. She held this position for 31 years. In May, 1995, Kastel, then age 60, took early retirement under the "5 + 5" early retirement plan codified at 40 ILCS § 5/16-133.5 (1993). Under that plan, Kastel was eligible to be rehired by the Board without impairing her retirement status provided the reemployment (1) was not within the same school year in which her service was terminated, and (2) did not exceed 100 paid days or 500 paid hours in any school year. Id. § 5/16-118.

According to the complaint, Kastel gave notice to the Board of her intention to elect early retirement on January 3, 1994.² Kastel claims that at that time she was assured by the Superintendent and her Principal that she could continue her employment in a part-time capacity following her retirement. Kastel asserts that it was the Board's established practice and course of dealing that offers of employment made by the Superintendent and principals were considered offers by the Board. Kastel relied upon the assurances that she could return part time in reaching her decision to elect early retirement.

On May 31, 1995, Kastel formally applied to fill her old position of speech-language pathologist on a part-time basis. The Board denied her application on the grounds (which she identifies as a "technicality") that there was no position available, as her own retirement was not yet effective. She was also informed that she would be reemployed on a part-time basis only on the condition that she forgo her early retirement benefits. In addition to applying for her old position on a part-time basis, Kastel applied for other part time vacancies for speech-language pathologists. She made at least one formal application for such a position on August 15, 1996. She claims that she also made informal inquiries regarding other speech-language pathologist positions, and generally let it be known that she wanted to be considered for any relevant position that was or became available. Kastel was not hired for any of these openings. Instead, every available part-time speech-language pathologist position was filled by a person younger than Kastel.

From about May 31, 1995, through at least October 18, 1995, Kastel claims that she regularly gave the defendants notice that she intended to "pursue her rights" if she was denied part-time employment. This notice included warnings that she would file charges with the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act and Title VII of the Civil Rights Act, as well as pursue litigation of her claims. Following each denial of her applications for part-time employment, Kastel questioned the actions of the Board and threatened to file a charge of age and sex discrimination. Kastel eventually filed a charge with the EEOC on October 18, 1995. Kastel alleges that the Board told her that she would not be considered for any position because she had filed a charge of discrimination. Kastel received her right-to-sue letter from the EEOC on or about November 24, 1995, and commenced this suit. The defendants have moved to dismiss all remaining counts of the complaint.

LEGAL STANDARDS

A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Associates, Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir.1989). The court, in considering a motion to dismiss, must view all facts alleged in the complaint, as well as any reasonable inferences drawn from the alleged facts, in the light most favorable to the plaintiff. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). All ambiguities are resolved in the plaintiff's favor. Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir.1992). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

ANALYSIS

I. Age Discrimination/Failure to Rehire.

In Count I of her Amended Complaint, Kastel alleges that the Board failed to hire her for a part-time position because of her age, in violation of the ADEA, 29 U.S.C. § 621 et seq. The defendants first argue that Count I is insufficient as a matter of law, asserting that allegations of failure to "rehire" after an employee voluntarily retires from a job do not state a claim for age discrimination. The defendants also argue that they are entitled to the benefit of the "same actor" or "hirer/firer" presumption since the same employer who hired and employed Kastel for 31 years is now charged with discrimination against her. Third, the defendants claim that Kastel has not alleged and cannot allege that a person outside the protected class was hired in her place. Finally, the defendants argue that employment decisions which tend to affect older employees more adversely than younger employees are not discriminatory, even if they are admittedly correlated to age, so long as age itself is not the determinative factor.

To prevail on a claim for age discrimination, Kastel must prove that she was subjected to adverse employment treatment, and 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). The Seventh Circuit has held that plaintiffs may prove this by presenting either direct or circumstantial evidence of discrimination. Id. The most common method of proving employment discrimination circumstantially, and the approach taken by Kastel, is the burden-shifting method of proof articulated by the Supreme Court for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and adapted to ADEA claims in Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1212 (7th Cir.1985). This method requires Kastel to make a prima facie case, creating a presumption that the decision affecting her employment was motivated by her age. The defendants could then attempt to rebut this by offering a non-discriminatory justification for the decision. Kastel would then have the opportunity to demonstrate that this proffered non-discriminatory justification was merely a pretext for discriminatory action. However, because of the limited scope of the court's analysis in considering a motion to dismiss, all that is required of Kastel at this stage is that she make out a prima facie case. See Oxman, 846 F.2d at 453.

Traditionally, to establish a prima facie case for failure to hire due to age discrimination, a plaintiff must allege that (1) she was a member of the protected class; (2) the employer was seeking applications for the position, she applied, and she was qualified for the position; (3) she was not hired; and (4) a younger person was hired. Caldwell v. National Ass'n of Home Builders, 771 F.2d 1051, 1056 n. 2 (7th Cir.1985). Here, Kastel was, at all relevant times, a member of the protected class of persons over 40. With respect to the second element, Kastel creates the inference that her old position was in reality open when she applied on May 31, 1995 on a part-time basis, through her allegation characterizing as a "technicality" the defendants' argument that the position was not available because her retirement was not yet effective. Kastel also alleges that she inquired of the defendants about other part-time speech-language pathologist positions. The general rule is that even informal inquiries about positions are sufficient to satisfy this element of the prima facie case. Chambers v. Wynne School Dist., 909 F.2d 1214, 1217 (8th Cir.1990). Kastel has thus satisfied the first and second requirements for making a prima facie case.

Additionally, Kastel has alleged that she was not hired for any of the positions for which she applied, satisfying the third element of her prima facie case. Finally, Kastel has alleged that a younger person was hired to fill each and every position for which she applied. By satisfying her fourth and final element in making a prima facie case for age discrimination/failure to rehire, Kastel has alleged facts sufficient to...