SEVENTH CIRCUIT FINDS THAT EMPLOYEE CAN PURSUE AGE CLAIM WHERE EMPLOYER PROVIDED INCONSISTENT REASONS FOR FAILURE TO REHIRE
Zaccagnini v. Chas. Levy Circulating Co., (7th Cir. July 29, 2003)
In this case, the Seventh Circuit held that the credibility of an employer’s alleged non-discriminatory reason for not rehiring an employee could be questioned after it provided inconsistent reasons for its decision. The plaintiff began working for the defendant as a driver in 1994. In March 1997, the defendant terminated the plaintiff due to a reduction-in-force. The defendant’s Vice President of Operations informed the plaintiff that he would be rehired if the defendant later had a need for additional drivers. Several months later, the defendant hired three new drivers, all of whom were younger than the plaintiff. The plaintiff filed a grievance with his union, but the grievance was denied. A short time later, the defendant hired a fourth driver who was also younger than the plaintiff. The plaintiff filed a charge of discrimination with the Illinois Department of Human Rights and then filed a lawsuit in federal court alleging that the defendant’s failure to rehire him constituted age discrimination under the ADEA.
The District Court granted summary judgment in favor of the defendant based on its opinion that the plaintiff could not show that the defendant’s alleged non-discriminatory reason for not rehiring him was a pretext for age discrimination. The plaintiff appealed the decision. The Seventh Circuit reversed the District Court and found that the defendant changed its explanation for not rehiring the plaintiff at an advanced stage in the litigation. The Court concluded that the defendant’s shifting reasons raised an issue of fact precluding summary judgment. The Circuit Court noted that the inconsistencies in the defendant’s interrogatory answers and in its report to the Illinois Department of Human Rights might lead a jury to decide that the defendant’s various reasons for not rehiring the plaintiff were a pretext for age discrimination. Therefore, the Court reversed and remanded the case to the District Court for trial.