Ritter, Elmer v. Hill & Dale Farm Inc ( 2000 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 99-3132
    ELMER RITTER,
    Plaintiff-Appellant,
    v.
    HILL ’N DALE FARM, INC.,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern
    Division.
    No. 98 C 2895--Matthew F. Kennelly, Judge.
    Argued October 3, 2000--Decided November 9, 2000
    Before FLAUM, Chief Judge, and COFFEY and
    ROVNER, Circuit Judges.
    FLAUM, Chief Judge. Elmer Ritter, a
    field maintenance worker at Hill ’N Dale
    Farm (HND), filed suit under the Age
    Discrimination in Employment Act (ADEA),
    29 U.S.C. sec.sec. 621-634, against
    HND/1 after his employment ended/2
    when he was 71. In granting summary
    judgment for HND, the district court
    found that Ritter narrowly made out a
    prima facie case of discrimination, held
    that Ritter had failed to demonstrate
    that HND’s proffered reason for ending
    his employment--that an economic downturn
    made his position unnecessary--was
    pretextual, and rejected Ritter’s
    contention that HND’s subsequent failure
    to rehire him constituted discrimination.
    On appeal, Ritter challenges these
    holdings. We affirm.
    I.  Background
    Ritter began working at HND in spring
    1988 at the age of 63. Farm Manager Joe
    Carper hired Ritter and served as his
    direct supervisor. Ritter’s primary duty
    as a field maintenance employee was to
    mow the farm’s pastures.
    In fall 1989, Ritter quit after a
    dispute with a business manager, but he
    was rehired in spring 1990 after the
    manager was replaced. Because HND did not
    need pastures mowed in the winter, Carper
    transferred Ritter in fall 1990 to a
    night watch position for the winter
    (November through March). As a night
    watchman, Ritter’s main duties were to
    feed and water the horses, and to monitor
    their general condition. From 1991 to
    1994, Ritter served as a night watchman
    during the winter, while returning to his
    field maintenance position for the
    remainder of the year.
    Ritter’s job performance was mixed
    during the early 1990s. Carper was
    satisfied with Ritter’s performance as a
    field maintenance worker and he granted
    Ritter pay increases in 1991, 1992, and
    1993. However, Ritter missed work
    numerous times during the winter; he was
    absent 22 days in the winter of 1990-
    1991, 8 days in 1991-1992, and 17 days in
    1992-1993. Ritter notes that his absences
    were largely due to the fact that he
    lived nearly 60 miles away from HND and
    often had problems commuting in the
    winter. HND asserts that when Ritter was
    absent they would have to pay another
    worker overtime to cover his shift and
    that his absences could endanger the
    horses if no one could be found to cover
    his shift.
    In January 1994, after Ritter had missed
    29 of the previous 35 days of work,
    Carper decided that he could no longer
    employ Ritter in the winter. Carper did
    not fire Ritter, but instead offered him
    a seasonal field maintenance position
    from March to November. Ritter accepted
    the offer and worked at HND from March to
    November in both 1994 and 1995. There is
    a dispute over the exact terms of
    Ritter’s seasonal employment. HND claims
    that Ritter’s employment ended in
    November of each year and that they chose
    to rehire him the next March. Ritter,
    noting that his return to work in March
    1995 did not involve an employment
    application or any additional paperwork,
    asserts that he was guaranteed seasonal
    employment each year.
    In fall 1995, HND’s owner, Richard
    Duchossois, informed Carper that he was
    unloading several horses at HND due to
    economic difficulties in the local horse
    industry and that he wanted to reduce
    expenses at the farm. In response,
    Carper, realizing that fewer horses
    required less pasture land, decided to
    eliminate Ritter’s seasonal field mainte
    nance position. When Ritter showed up on
    March 15, 1996, looking for work, Carper
    informed him that his position had been
    eliminated. HND did not replace Ritter;
    instead it divided his seasonal mowing
    responsibilities among Carper and four
    full time, year-round HND employees
    between the ages of 20 and 37 and who
    were paid $6.50 to $7.50 per hour as
    opposed to the $9.35 that Ritter had
    earned.
    After Ritter was not rehired to his
    field maintenance position, HND filled
    two positions in which Ritter claims to
    have been interested. At three different
    times during 1996, HND advertised for and
    filled the night watch position. Ritter
    applied for the position twice, but
    Carper hired individuals who were younger
    and paid less. In September 1996, HND
    hired a new mechanic. Ritter had
    performed some mechanic’s duties for one
    week in 1991 but since then he had not
    expressed interest in the position.
    In January 1997, Ritter filed a charge
    of discrimination with the EEOC, alleging
    that HND violated the ADEA by terminating
    him in March 1996. The EEOC dismissed the
    charge, but issued a right to sue letter
    in February 1998. In May 1998, Ritter
    filed this suit, alleging discrimination
    on the basis of age. In support of his
    claim, Ritter alleged that a number of
    similarly situated younger employees were
    not discharged in March 1996, and that
    younger applicants had been selected for
    the night watch and mechanic positions,
    despite the fact that Ritter was
    interested in and qualified for those
    positions. Finally, Ritter alleged that
    at some time prior to October 1995,
    Carper once remarked that Ritter was
    "getting critical in his old age."
    The district court granted summary
    judgment to HND. The court first noted
    that Carper’s alleged remark did not
    amount to direct evidence of
    discrimination because even Ritter admits
    he took the statement as a joke, and
    there was no evidence that the statement
    was related to the decision to terminate
    Ritter. The court next found that Ritter
    could "probably eke out a prima facie
    case" under the indirect framework, see
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802-05 (1973), though the court
    questioned whether Ritter could show that
    similarly situated employees were treated
    more favorably. Finally, the court held
    that HND had demonstrated that it
    terminated Ritter for a legitimate,
    nondiscriminatory reason--the downturn in
    the horse industry--and that Ritter had
    not offered any evidence tending to show
    that HND’s reason was pretextual. As for
    HND’s failure to rehire Ritter as a
    mechanic or night watch person, the
    district court noted that Ritter had not
    applied for the mechanic position, and
    found that his past pattern of
    absenteeism in the winter made him
    unqualified for either of the year-round
    positions.
    II.   Discussion
    As a preliminary matter, we address the
    parties’ dispute over the exact nature of
    Ritter’s employment. HND claims that as a
    seasonal employee Ritter was fired in
    November of each year and then rehired in
    March of the next year. Therefore, HND
    claims they actually rehired Ritter at
    the ages of 69 and 70 and that the March
    1996 employment action was simply a
    failure to rehire rather than a
    termination. Ritter, however, argues that
    he was always an employee of HND and he
    was guaranteed seasonal work every year.
    Therefore, he asserts that he was
    terminated in March 1996.
    HND’s view of Ritter’s employment
    situation appears to be correct. The
    handful of Illinois cases involving the
    status of seasonal employees under state
    law all refer to those employees as being
    rehired at the beginning of the season.
    See e.g., City of Tuscola v. Illinois
    State Labor Relations Bd., 
    732 N.E.2d 784
    (Ill. App. Ct. 2000); Northwest Mosquito
    Abatement Dist. v. Illinois State Labor
    Relations Bd., 
    708 N.E.2d 548
     (Ill. App.
    Ct. 1999); Webb v. County of Cook, 
    656 N.E.2d 85
    , 88 (Ill. App. Ct. 1995);
    Motsch v. Pine Roofing Co., Inc., 
    533 N.E.2d 1
    , 5 (Ill. App. Ct. 1988). Those
    cases accepted that the seasonal
    employees were terminated at the end of
    the season. The relevant inquiry for
    determining the seasonal employees’
    status under various state laws was
    whether the employee had a "reasonable
    assurance" of being rehired the next
    year. City of Tuscola, 
    732 N.E.2d at
    736-
    37; Northwest Mosquito, 
    708 N.E.2d at 554
    . We decline to decide whether Ritter
    had a reasonable assurance of being
    rehired for two reasons. First, there is
    not a sufficient factual basis in the
    record upon which to make such a
    decision. Second, given that we agree
    with the district court that Ritter has
    failed to demonstrate that HND was
    motivated by discrimination in its
    actions, it is unnecessary to decide the
    exact nature of Ritter’s employment.
    On appeal, Ritter argues that he
    established a prima facie case of
    discrimination and pretext in regards to
    both the March 1996 employment action and
    HND’s failure to rehire him as a mechanic
    or night watch person. Specifically,
    Ritter asserts that he met HND’s
    expectations as a field maintenance
    worker, that his absences during the
    winter were due to bad weather and his
    long commute, and that younger
    individuals took over his duties and were
    hired to the mechanic and night watch
    positions.
    Ritter has set forth a prima facie case
    of discrimination with regards to the
    March 1996 employment action. The parties
    do not dispute that the first three
    elements of the prima facie case are met
    because Ritter was over 40, was meeting
    HND’s legitimate expectations in regards
    to his performance of the field
    maintenance position, and suffered an
    adverse employment action. See Ransom v.
    CSC Consulting, Inc., 
    217 F.3d 467
    , 470
    (7th Cir. 2000).
    HND, however, disputes whether Ritter
    has established the fourth prong of the
    prima facie case. HND argues that this
    case involves a reduction in force (RIF)
    because HND eliminated Ritter’s position
    rather than replacing him. HND notes that
    in RIF cases the fourth prong of the
    prima facie case has been described as
    requiring a showing that "similarly
    situated, substantially younger employees
    were treated more favorably." Pitasi v.
    Gartner Group, Inc., 
    184 F.3d 709
    , 716
    (7th Cir. 1999); Jackson v. E.J. Brach
    Corp., 
    176 F.3d 971
    , 983 (7th Cir. 1999).
    HND argues that Ritter’s showing fails
    because all the other younger employees
    Ritter identified as being treated more
    favorably were not similarly situated
    because they were year-round, as opposed
    to seasonal, employees.
    HND’s argument is incorrect, however,
    because Ritter’s case is not a true RIF--
    only one position (Ritter’s)
    waseliminated and the duties of that
    position were simply absorbed by other
    employees. Ritter’s case, therefore,
    constitutes a "mini-RIF," see Michas v.
    Health Cost Controls of Ill., Inc., 
    209 F.3d 687
    , 693 (7th Cir. 2000); Bellaver
    v. Quanex Corp., 
    200 F.3d 485
    , 495 (7th
    Cir. 2000), or "fungibility" situation,
    see Paluck v. Gooding Rubber Co., 
    221 F.3d 1003
    , 1012 (7th Cir. 2000); Miller
    v. Borden, Inc., 
    168 F.3d 308
    , 313 (7th
    Cir. 1999). In these cases, the fourth
    prong of the prima facie case is met by
    showing simply that the plaintiff was
    "constructively replaced," in other words
    that his responsibilities were absorbed
    by employees not in the protected class.
    See Paluck, 
    221 F.3d at 1012
    ; Michas, 
    209 F.3d at 693
    ; Bellaver, 
    200 F.3d at 495
    .
    It is not disputed that Ritter’s mowing
    responsibilities were taken over by four
    employees who were all under 40 years of
    age, and therefore Ritter has
    demonstrated a prima facie case.
    Because Ritter established a prima facie
    case, the burden of production shifted to
    HND to present a legitimate,
    nondiscriminatory reason for its actions.
    See Jackson, 
    176 F.3d at 983
    . HND
    explained that the elimination of
    Ritter’s position was the direct result
    of an economic downturn in the horse
    industry. The downturn required cutbacks
    in expenses, a reduction in the number of
    horses, and a corresponding reduction in
    the amount of pasture land. Ritter’s
    position was a logical one to cut because
    he was the lone seasonal employee, his
    frequent absences demonstrated that he
    could not meet HND’s legitimate
    expectations in the winter, and there
    were now fewer pastures to mow. HND met
    its burden of production.
    Ritter’s claim fails because he has not
    demonstrated that HND’s proffered
    explanation is merely pretextual--in
    other words, that HND has offered a phony
    reason for the employment action. See
    Baron v. City of Highland Park, 
    195 F.3d 333
    , 341 (7th Cir. 1999); Jackson, 
    176 F.3d at 983
    . Pretext is not shown merely
    by demonstrating that HND erred or
    exercised poor business judgment; instead
    Ritter must establish that HND did not
    believe the reasons it gave for
    eliminating his position. See Pitasi, 
    184 F.3d at 718
    .
    In attempting to show pretext, Ritter
    acknowledges that an economic downturn
    required cutbacks at the farm. Ritter,
    however, disputes HND’s reasons for
    selecting his position to eliminate and
    contends that HND actually targeted his
    position because of his age. In support,
    Ritter asserts that other duties could
    have been shifted to him and that other
    younger employees could have been fired;
    that Carper’s statement about Ritter
    "getting critical in [his] old age"
    demonstrates his discriminatory intent;
    and that two 59-year-old employees were
    fired around the same time as Ritter was.
    Ritter did not establish pretext.
    Ritter’s assertion that HND could have
    dismissed other employees and shifted new
    responsibilities to him merely challenges
    HND’s business judgment. This court has
    consistently emphasized that it will not
    "sit as a super personnel department to
    review an employer’s business decision."
    Ransom, 
    217 F.3d at 471
    ; Baron, 
    195 F.3d at 341
    . Ritter’s assertions do not show
    that HND is lying about its reasons for
    its actions.
    Carper’s statement about Ritter "getting
    critical in [his] old age" also does not
    show pretext. Although remarks can
    occasionally help to establish pretext,
    see Hoffman v. MCA, Inc., 
    144 F.3d 1117
    ,
    1124 (7th Cir. 1998), pretext is not dem
    onstrated by isolated statements
    unrelated to the employment decision at
    issue. See id.; see also Robin v. Espo
    Eng’g Corp., 
    200 F.3d 1081
    , 1089 (7th
    Cir. 2000). In this case, Carper only
    made one comment directed at Ritter’s
    age, the comment was made at least six
    months before Ritter’s position was
    eliminated, and even Ritter admits that
    he took it as a joke.
    The fact that two 59-year-old employees
    were fired around the same time as Ritter
    also does not demonstrate pretext. First,
    Ritter has presented no evidence as to
    the two employees’ qualifications or the
    circumstances surrounding their
    termination, and therefore it is not
    clear that they were similarly situated
    to Ritter. See Swanson v. Leggett &
    Platt, Inc., 
    154 F.3d 730
    , 734 (7th Cir.
    1998). Second, Ritter obtained the names
    of the two 59-year-olds who were
    terminated from a list of 41 employees
    terminated by HND between 1995 and 1997.
    The remaining 39 employees on the list
    were all under the age of 40, a fact
    which undermines Ritter’s claim that HND
    targeted older people to terminate.
    Finally, we note that two additional
    facts suggest that no discriminatory
    motive was involved here. First, Ritter
    was hired originally at the age of 63 and
    was rehired at the age of 65. From the
    fact that HND hired Ritter when he was
    already 23 years into the protected
    class, the court can infer that his later
    firing was not due to his age. See Rand
    v. CF Indus., Inc., 
    42 F.3d 1139
    , 1147
    (7th Cir. 1994) ("It seems rather suspect
    to claim that the company that hired
    [plaintiff] at age 47 ’had suddenly
    developed an aversion to older people’
    two years later."). A similar inference
    of nondiscrimination can also be made
    from the fact that Ritter was hired and
    fired by the same individual, Carper. See
    Johnson v. Zema Sys. Corp., 
    170 F.3d 734
    ,
    744-45 (7th Cir. 1999); EEOC v. Our Lady
    of the Resurrection Med. Ctr., 
    77 F.3d 145
    , 152 (7th Cir. 1996); Rand, 
    42 F.3d at 1147
    . Although these facts do not
    foreclose a finding of discrimination,
    see Johnson, 
    170 F.3d at 745
    , they do
    create an inference of nondiscrimination.
    As to Ritter’s claims of discrimination
    based on HND’s failure to rehire him to
    other positions, such claims cannot be
    raised because they were never presented
    in his charge of discrimination with the
    EEOC. Ritter’s charge stated only that he
    was discharged and that he believed he
    had been discriminated against on the
    basis of his age. Although this court
    reads charges of discrimination liberally
    in order to allow a plaintiff to bring
    any claim of discrimination that is
    reasonably related to the allegations of
    the charge, see Rush v. McDonald’s Corp.,
    
    966 F.2d 1104
    , 1110-12 (7th Cir. 1992),
    the court has also required that charges
    filed with the EEOC include both
    discriminatory termination and failure-
    to-rehire claims. See Sauzek v. Exxon
    Coal USA, Inc., 
    202 F.3d 913
    , 920 (7th
    Cir. 2000). Because Ritter did not
    mention a failure-to-rehire claim in his
    EEOC charge, this claim is not
    cognizable.
    Even if the failure-to-rehire claim was
    cognizable, it would fail on the merits
    because Ritter cannot establish a prima
    facie case. While Ritter has shown that
    he is a member of the protected class,
    that he was not hired for any of the open
    positions, and that younger people were
    hired to those positions, he cannot
    demonstrate that he applied and was
    qualified for the positions. See Kralman
    v. Illinois Dep’t of Veteran’s Affairs,
    
    23 F.3d 150
    , 153 (7th Cir. 1994). First,
    Ritter never applied for the mechanic
    position. While Ritter did express
    interest in being a mechanic in 1991,
    this single expression of interest does
    not qualify as applying for a position
    that became available in 1996. See, e.g.,
    Fields v. Hallsville Indep. Sch. Dist.,
    
    906 F.2d 1017
    , 1022 (5th Cir. 1990)
    (single, oral expression of interest in a
    position over a year before vacancy at
    issue does not qualify as applying for
    position). Having not applied for the
    position, Ritter cannot demonstrate a
    prima facie case of discrimination due to
    HND’s failure to hire him as a mechanic.
    See Kralman, 
    23 F.3d at 153
    ; see also
    Konowitz v. Schnadig Corp., 
    965 F.2d 230
    ,
    234 (7th Cir. 1992) (no inference of dis
    crimination from failure to transfer
    employee to another position where
    nothing in the record demonstrated that
    employee applied for any jobs or informed
    the company of his interest).
    Furthermore, Ritter failed to
    demonstrate that he was qualified to fill
    the year-round mechanic or night watch
    positions. Ritter, noting that he had at
    least some experience as both a night
    watch person and a mechanic, asserts that
    he was better qualified than the younger
    employees who were hired to these
    positions. Ritter, however, glosses over
    the fact that he missed 76 days of work
    over four winters, thereby possibly
    endangering HND’s horses and causing HND
    to have to pay other workers overtime to
    cover his position. This pattern of
    absenteeism forecloses a prima facie
    showing because it is clear that Ritter
    could not satisfactorily perform a year-
    round position at HND. See Kralman, 
    23 F.3d at 153
    ; see also Robin, 
    200 F.3d at 1092
     (plaintiff’s prima facie case fails
    where he cannot show he is meeting his
    employer’s legitimate expectations); Hong
    v. Children’s Mem’l Hosp., 
    993 F.2d 1257
    ,
    1262 (7th Cir. 1993) (same).
    III.   Conclusion
    For the foregoing reasons, we AFFIRM the
    grant of summary judgment to HND.
    /1 Ritter’s complaint also named HND’s parent compa-
    ny, Duchossois Industries (DI), as a defendant.
    The district court granted summary judgment to DI
    on the ground that DI could not be held liable
    for the actions of its autonomous subsidiary,
    HND. Ritter does not challenge this holding on
    appeal and therefore any claims against DI are
    waived. See Hentosh v. Herman M. Finch Univ. of
    Health Sciences/The Chicago Med. Sch., 
    167 F.3d 1170
    , 1173 (7th Cir. 1999).
    /2 As discussed later, the parties dispute whether
    Ritter, who worked in a seasonal position, was
    fired or whether HND simply refused to rehire
    him.