Robert C. Mills v. Indiana Department of Child Services, Shirley Starks, Kristen L. Sparks, Melanie Reising, and Elizabeth Herrmann , 2017 Ind. App. LEXIS 180 ( 2017 )

FILED
Apr 28 2017, 9:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Robert C. Mills Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Andrea E. Rahman
Matthew Elliott
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert C. Mills, April 28, 2017
Appellant-Plaintiff, Court of Appeals Case No.
82A01-1606-PL-1482
v. Appeal from the Vanderburgh
Superior Court
Indiana Department of Child The Honorable Leslie C. Shively,
Services, Shirley Starks, Kristen Judge
L. Sparks, Melanie Reising, and Trial Court Cause No.
Elizabeth Herrmann, 82D01-1411-PL-5329
Appellees-Defendants
Vaidik, Chief Judge.
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Case Summary
[1] Robert Mills, pro se, brought suit against the Indiana Department of Child
Services (DCS) and several of its employees for sex and age discrimination
under Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act (ADEA), and the Equal Protection Clause of the Fourteenth
Amendment (via 42 U.S.C. § 1983). He also claimed that DCS violated Title
VII’s anti-retaliation provision by refusing to interview him for open positions
after he filed a discrimination charge with the Equal Employment Opportunity
Commission (EEOC).
[2] DCS moved for and won a judgment on the pleadings on all of Mills’s claims
against its employees. That ruling left standing only three of Mills’s claims—
sex and age discrimination and retaliation by DCS. DCS was granted summary
judgment on these remaining claims. Mills now appeals the trial court’s
rulings. We affirm.
Facts and Procedural History
[3] Mills was employed by DCS as a caseworker from approximately 1975 to 1980
and again from 1984 to 1988. In 1988, he changed positions and worked for
DCS as a Child Care Center Licensing Consultant. He held this position until
he resigned in 2007. Mills then began working as a Manager of Child
Development Services for Evansville Head Start. In 2010, at the age of 62, he
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retired. A few years later, Mills decided that he needed to increase his monthly
pension payments and decided to resume working.
[4] In October 2013, Mills applied for a Family Case Manager position with DCS.
At that time, DCS’s applicant screening process was multi-step and included a
two-part interview. Mills was selected for an interview and met with Melanie
Reising and Elizabeth Herrmann, supervisors at DCS. During the interview,
Mills was asked why he wanted to come out of retirement, and he stated that he
wanted “to work for the State for 2-3 years to solidify my retirement income.”
Appellant’s App. Vol. II p. 157. After the interview concluded, Herrmann sent
feedback to Shirley Starks, the local director for DCS, and recommended that
Mills not move on in the interview process. Herrmann noted that Mills was
hard to engage in conversation, was unable to answer questions with specific
examples of using essential skills for the job, was rigid on his views of
traditional and non-traditional families—his body language suggested that he
was uncomfortable with non-traditional families—and provided generalized
answers to questions about child abuse or neglect. Id. at 159. DCS ultimately
hired another male applicant.
[5] Three months later, in January 2014, another Family Case Manager position
became available, and Mills interviewed for a second time with Reising and
Herrmann. Again, Mills restated that his desire for obtaining a position with
DCS was to work for two to three years to increase his pension. After the
interview, Reising and Herrmann had the same concerns about Mills that they
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had in October and recommended that he not move on in the interview process.
DCS hired a sixty-three-year-old female to fill the position.
[6] In April 2014, Mills filed charges against DCS with the EEOC, alleging sex and
age discrimination. After completing its investigation, the EEOC issued Mills a
Notice of Right to Sue on August 15, and it took no further action. On August
27 and October 30, Mills submitted additional applications for Family Case
Manager positions but was not interviewed for either opening. On November
11, Mills, pro se, filed this lawsuit against DCS, Starks, Herrmann, Reising,
Human Resources Generalist Kristen Sparks, DCS Director Mary Beth
Bonaventura, Doe I, Doe II, and Doe III. In his initial complaint, Mills alleged
that he was discriminated against by DCS based on his sex and age and
retaliated against for filing a charge with the EEOC; he raised claims under
Title VII of the Civil Rights Act of 1964, the ADEA, and Indiana Code chapter
22-9-2 (Indiana Age Discrimination Act (IADA)).1 Mills sought relief from
DCS and each employee in her individual and official capacity. After filing
suit, Mills submitted additional applications with DCS in February 2015 and
May 2015; DCS did not interview him for either of these positions.
[7] In May 2015, DCS moved for judgment on the pleadings on many of Mills’s
claims. DCS argued, among other things, that the individual defendants were
1
Mills also contends that he brought suit under Indiana Code chapter 22-9-1 (Civil Rights Enforcement), but
that chapter deals with the Indiana Civil Rights Commission’s creation, authority to investigate
discrimination claims, and ability to impose remedial sanctions.
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not “employers” as defined by the statutes under which Mills sought relief;
DCS was subject to the ADEA and was therefore statutorily excluded from the
definition of employer under the IADA; and Mills’s claim for monetary
damages under the ADEA was barred by the State’s sovereign immunity and
the only relief that he could receive was injunctive. Id. at 26-28. Mills
responded to DCS’s motion by seeking leave to file an amended complaint,
which he was granted.2 In his amended complaint, Mills no longer named
defendants Bonaventura, Doe I, Doe II, and Doe III, and he dropped the
IADA claim. Id. at 38-39, 45-52. Mills’s amended complaint added a claim
under § 1983 for violations of his rights under the Equal Protection Clause.
Based on these changes, DCS submitted a supplement to its motion for
judgment on the pleadings and argued that DCS is an agency, not a person,
under § 1983 and only individuals can be sued under § 1983; and that Mills did
not make any factual allegation regarding how the individual defendants
violated his constitutional rights under § 1983.
2
Mills made multiple additional requests to amend his complaint, but the trial court did not allow him to do
so. Mills contends that the trial court erred in this respect and that he was entitled to notice from the court of
any deficiencies in his complaint. The trial court has broad discretion to permit or deny motions to amend,
and we review the trial court’s decision only for an abuse of that discretion. First of Am. Bank, N.A. v. Norwest
Bank, Ind. N.A., 765 N.E.2d 149, 152 (Ind. Ct. App. 2002), trans. denied. In his argument, Mills fails to inform
us what he would amend in his complaint and how that would cure any defects, and we will not speculate on
the matter. Mills also cites to only Ninth Circuit cases in support of his contention that the trial court was
required to provide him with notice of any deficiencies. The Ninth Circuit’s opinions are not binding in
Indiana, and Mills has not cited to any binding authority that reaches the same conclusion. We decline to
extend the Ninth Circuit’s rule to Indiana and conclude that the trial court did not abuse its discretion in not
allowing Mills to further amend his complaint.
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[8] While DCS’s motion was pending, Mills filed two motions to compel
discovery. The trial court denied those motions and granted DCS’s motion for
judgment on the pleadings. All individual defendants were dismissed from the
suit, and Mills was left with three claims against DCS: sex discrimination under
Title VII, age discrimination under the ADEA, and retaliation under Title VII
for filing a charge with the EEOC.
[9] DCS then moved for summary judgment on the three remaining claims. Mills
opposed the motion and filed a personal affidavit in support of his argument.
The court granted DCS’s motion, and Mills moved to correct error. The trial
court denied the motion.
[10] Mills, still proceeding pro se, now appeals.3
3
Mills asks us to strike DCS’s appellate brief and appendix. DCS filed a belated motion for a second
extension of time to file its brief and appendix, claiming that it did not receive notice that this Court had
granted its first motion for extension of time and that counsel had failed to properly calendar the filing due
date. Our motions panel granted DCS’s belated motion, and Mills asks us to reconsider the decision. Mills
can challenge a motions panel’s decision, but we will decline to reconsider the issue “in the absence of clear
authority establishing that the [motions panel] erred as a matter of law.” Cincinnati Ins. Co. v. Young, 852
N.E.2d 8, 12 (Ind. Ct. App. 2006), trans. denied. To support his argument, Mills cites to an unpublished case,
cases decided under former Supreme Court Rule 2-2, and a case that discusses an appellant’s failure to
include a verbatim trial court order. Mills failed to show that the motions panel erred as a matter of law in
allowing DCS to file a belated brief and appendix. Furthermore, we prefer to decide cases on their merits
whenever possible. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). We encourage counsel for
DCS to reevaluate her calendaring system but decline Mills’s invitation to overturn our motions panel’s
ruling.
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Discussion and Decision
[11] Mills contends that the trial court erred by granting DCS’s motion for judgment
on the pleadings on some of his claims and by later granting its motion for
summary judgment on his remaining claims.4
I. Judgment on the Pleadings
[12] Mills argues that the trial court erred when it granted DCS’s motion for
judgment on the pleadings. We review the grant of a motion for judgment on
the pleadings de novo. Davis v. Edgewater Sys. for Balanced Living, Inc., 42 N.E.3d
524, 526 (Ind. Ct. App. 2015). A motion for judgment on the pleadings should
be granted only “where it is clear from the face of the pleadings that one party is
entitled to prevail as a matter of law.” ESPN, Inc. v. Univ. of Notre Dame Police
Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016).
[13] The trial court granted DCS judgment on the pleadings on all of Mills’s claims
against Starks, Sparks, Reising, and Herrmann (discrimination under Title VII,
ADEA, and § 1983) and the claim for monetary relief under the ADEA. On
4
Mills also contends that the trial court abused its discretion when it denied his motions to compel discovery
from DCS. Mills states that he contacted DCS on multiple occasions to work out their discovery disputes
and that DCS responded on multiple occasions that it would only comply “with a court order.” Appellant’s
Br. p. 38. Mills does not provide any evidence to support this contention. He cites to his appendices for
support, but these citations fail to provide us with any proof that these instances did in fact occur. Rather,
these citations are to motions Mills made to the trial court, and his motions also fail to present any evidence
to support his claim. Because Mills fails to cite to any evidence supporting his claim, this issue is waived.
Ind. Appellate Rule 46(A)(8)(a).
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appeal, Mills only challenges the court’s ruling on his Title VII and § 1983
claims against Starks, Sparks, Reising, and Herrmann.
A. Title VII
[14] Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to
discriminate against any individual because of such individual’s race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). An employer is a
“person engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar weeks in
the current or preceding calendar year, and any agent of such a person[.]” 42
U.S.C. § 2000e(b). The Seventh Circuit has stated that “a supervisor does not,
in his individual capacity, fall within Title VII’s definition of employer.”
Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995).
[15] Mills acknowledges the Seventh Circuit’s holding that a supervisor cannot be
held individually liable as an employer under Title VII. Nevertheless, he argues
that Starks, Sparks, Reising, and Herrmann—all of whom held a supervisory
role within DCS—fall within the definition of employer because the courts have
misinterpreted that definition. He contends that the plain language of the
definition is clear and that the use of “and any agent” in the definition means
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that DCS’s employees, who act as agents of DCS, are included as employers.5
Appellant’s Br. pp. 32-36.
[16] The Seventh Circuit has expressly rejected this argument. See Williams, 72 F.3d
at 554. “[T]he actual reason for the ‘and any agent’ language in the definition
of ‘employer’ was to ensure that courts would impose respondeat superior liability
upon employers for the acts of their agents.” EEOC v. AIC Sec. Investigations,
Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995) (citing Birkbeck v. Marvel Lighting Corp.,
30 F.3d 507, 510 (4th Cir. 1994)). Finding no reason to depart from the
Seventh Circuit’s holding, we conclude that the trial court did not err when it
disposed of the Title VII claims against Starks, Sparks, Reising, and Herrmann.
B. § 1983
[17] Mills also argues that the trial court erred when it granted DCS’s motion for
judgment on the pleadings on his claims against Starks, Sparks, Reising, and
Herrmann alleging sex and age discrimination under the Equal Protection
Clause. Mills raises this argument under § 1983, which states:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the United
5
Mills incorrectly compares the definition of employer under Title VII to the definition of employer under
the Family Medical Leave Act (FMLA). As Mills later points out in his brief, the Seventh Circuit has relied
on the differences in these definitions to hold supervisors liable under the FMLA but not Title VII.
Appellant’s Br. p. 33 (“The court relied on the differences in the definition of ‘employer’ between the statutes
to impose liability upon the supervisor [under the FMLA].”); see also Eppinger v. Caterpillar, Inc., 2017 WL
1166877 at *3 (7th Cir. 2017) (“But the FMLA’s definition of ‘employer’ is broader than that of Title VII and
encompasses some individual liability.”).
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States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress[.]
Stated another way, the statute “‘authorizes suits to enforce individual rights
under federal statutes as well as the Constitution’ against state and local
government officials.” Levin v. Madigan, 692 F.3d 607, 611 (7th Cir. 2012)
(quoting City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119 (2005)).
[18] Defendants have historically challenged whether a plaintiff can raise sex and
age discrimination claims under Title VII and the ADEA and simultaneously
assert the same claims under § 1983. While the circuit courts are split on this
issue, the Seventh Circuit has thoroughly analyzed these questions and
concluded that these claims can be raised together. See Levin, 692 F.3d at 621-
22 (“In light of our analysis of the ADEA and the relevant case law, and given
these divergent rights and protections, we conclude that the ADEA is not the
exclusive remedy for age discrimination in employment claims.”); Trigg v. Fort
Wayne Cmty. Schs., 766 F.2d 299, 302 (7th Cir. 1985) (“[A] discharged state
employee’s right to sue under § 1983 for violations of the Equal Protection
Clause was well established before the passage of Title VII, and the legislative
history suggests that Congress intended that § 1983 would not be impliedly
repealed in the employment discrimination context.”).
[19] In Mills’s case, the trial court granted DCS’s motion for judgment on the
pleadings and stated, “The Court further FINDS and ORDERS that
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Defendants, Shirley Starks, Kristen L. Sparks, Melanie Reising and Elizabeth
Herrmann, are granted judgment on the pleadings in their favor on all claims
made by Plaintiff against them.” Appellant’s App. Vol. II p. 152 (emphases in
original). The trial court provided no additional insight into how it reached this
conclusion. Given that § 1983 permits Equal Protection Clause claims against
individual government employees, that § 1983 claims can be brought
simultaneously with Title VII and ADEA claims, and that the trial court failed
to explain its ruling, we agree with Mills that the court erred when it disposed
of his claims against Starks, Sparks, Reising, and Herrmann for allegedly
violating his rights under the Equal Protection Clause.
[20] However, we find this error to be harmless. Harmless error occurs when, in
light of all of the evidence in the case, the error is sufficiently minor so as not to
affect the substantial rights of a party. Ind. Appellate Rule 66(A); see also
Kimbrough v. Anderson, 55 N.E.3d 325, 336 (Ind. Ct. App. 2016), trans. denied.
After winning its motion for judgment on the pleadings, DCS moved for
summary judgment on the three remaining claims, and we have no reason to
believe that DCS would not have also moved for summary judgment on the
Equal Protection Clause claims had they survived the motion for judgment on
the pleadings. Mills’s claim that his rights under the Equal Protection Clause
were violated is factually identical to his Title VII and ADEA claims, and, as
discussed below, we conclude that the trial court properly granted summary
judgment on those claims. Accordingly, this error did not affect Mills’s
substantial rights and was harmless.
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II. Summary Judgment
[21] Mills also argues that the trial court erred when it granted DCS’s motion for
summary judgment on his claims for sex discrimination under Title VII, age
discrimination under the ADEA, and retaliation under Title VII. We review a
trial court’s summary judgment decision de novo. Hughley v. State, 15 N.E.3d
1000, 1003 (Ind. 2014). All reasonable inferences are drawn in favor of the
non-moving party. Id. Summary judgment is appropriate if there is “no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.” Ind. Trial Rule 56(C). If the moving party meets these two
requirements, then the burden shifts to the non-moving party to “respond with
specifically designated facts which establish the existence of a genuine issue for
trial.” Hayden v. Paragon Steakhouse, 731 N.E.2d 456, 457-58 (Ind. Ct. App.
2000) (emphasis added). We will only consider evidence that was specifically
designated to the trial court. Id. at 458. “A fact is ‘material’ if its resolution
would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is
required to resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable inferences.” Hughley,
15 N.E.3d at 1003.
[22] Mills contends that he presented fifty-two “relevant facts” to the trial court to
challenge DCS’s motion for summary judgment. Appellant’s Br. p. 52;
Appellant’s Reply Br. p. 6. He argues that all of the facts “were of
‘consequence’ and ‘would affect a person’s decision-making process.’”
Appellant’s Br. p. 53. Mills, however, did not identify for the trial court or us
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what these facts were, why they were genuine issues of material fact, or how
they were in dispute. Additionally, Mills submitted over 1000 pages of exhibits
to the trial court and made general citations to the exhibits in support of his
argument, leaving the trial court to guess as to why the exhibit was relevant.
On appeal, Mills still fails to specifically identify what the genuine issues of
material fact are or why they are in dispute. We conclude that the trial court
did not err when it determined that no genuine issue of material fact existed.
We now address the second half of the summary-judgment standard: did DCS
prove that it was entitled to judgment as a matter of law?6
A. Sex Discrimination
[23] Title VII makes it unlawful for an employer to discriminate against any
individual because of such individual’s sex. 42 U.S.C. § 2000e-2(a)(1). Mills
raises claims under both the disparate-treatment and disparate-impact theories
of discrimination. Disparate-treatment claims require that the plaintiff “prove
that the defendant had a discriminatory intent or motive.” Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 986 (1988). To establish a prima facie case of
disparate-treatment sex discrimination under Title VII, a plaintiff must use
either the direct or indirect method of proof. Ptasznik v. St. Joseph Hosp., 464
6
Along with his brief opposing summary judgment, Mills filed a self-serving affidavit. He argues that this
affidavit presents an alternative version of the facts and “alone is sufficient to defeat summary judgment.”
Appellant’s Br. p. 51. Our Supreme Court has said that a “self-serving affidavit may only preclude summary
judgment when it establishes that material facts are in dispute[.]” AM Gen. LLC v. Armour, 46 N.E.3d 436,
441 (Ind. 2015) (emphasis in original). Upon review of Mills’s affidavit, we conclude that no genuine issue of
material fact was raised.
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F.3d 691, 695 (7th Cir. 2006). The direct method requires the plaintiff to
produce “direct evidence, such as an ‘outright admission’ of discrimination” or
produce “sufficient circumstantial evidence” that “point[s] directly to a
discriminatory reason for the termination decision.” Id. Mills does not raise an
argument under the direct method of proof.
[24] Under the indirect method, a male plaintiff must prove: (1) background
circumstances that demonstrate that a particular employer has reason or
inclination to discriminate invidiously against men or evidence that there is
something “fishy” about the facts at hand; (2) he applied for, and was qualified
for, an open position; (3) the employer rejected him for the position; and (4) the
employer filled the position with an individual outside of the plaintiff’s
protected class, or the position remained vacant. See Gore v. Ind. Univ., 416 F.3d
590, 592 (7th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Mills v. Health Care Srv. Corp., 171 F.3d 450, 457 (7th Cir. 1999). In the
present case, Mills has failed to provide any evidence that DCS had a reason or
inclination to discriminate invidiously against men or that something “fishy”
surrounded the decisions not to hire him. Furthermore, after Mills’s first
interview, DCS hired a male applicant to fill the vacant position.7 Mills has not
established a disparate-treatment claim of sex discrimination.
7
Had Mills satisfied the prima facie requirements, DCS provided several legitimate, non-discriminatory
reasons for why it chose not to hire Mills—he wanted to work for only two to three years, he was hard to
engage in conversation, he was unable to answer questions with specific examples to illustrate the use of
essential skills, he was rigid on his views of traditional and non-traditional families, and he provided
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[25] Our analysis of Mills’s Title VII claim, however, does not stop with disparate-
treatment discrimination. Mills also raises an additional argument that DCS’s
hiring practices have a disparate impact on male applicants. In other words,
Mills argues that DCS did not intentionally discriminate against male
applicants, but it nevertheless violated Title VII because a “facially neutral
practice” of DCS is discriminatory in its operation. Griggs v. Duke Power Co.,
401 U.S. 424, 431 (1971). To prevail on this claim, the plaintiff is responsible
for “isolating and identifying the specific employment practices that are
allegedly responsible for any observed statistical disparities.” Smith v. City of
Jackson, Miss., 544 U.S. 238, 241 (2005) (emphasis in original) (quoting Watson,
487 U.S. at 994). Mills fails to identify a specific employment practice that is
responsible for the disparate impact on male applicants. Mills states, “The
entire DCS interview process makes discrimination happen.” Appellant’s Br.
p. 56 (emphasis added). This statement does not specifically narrow down
what Mills is challenging, as DCS’s interview process is multi-step. See
Appellee’s Br. p. 14. Accordingly, we conclude that Mills has failed to prove
disparate-treatment or disparate-impact discrimination, and DCS was entitled
to judgment as a matter of law on Mills’s sex discrimination claim.
generalized answers to questions about child abuse or neglect. Additionally, Mills has not proven that DCS’s
proffered reasons for not hiring him were pretext. Accordingly, we would still affirm the trial court’s ruling.
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B. Age Discrimination
[26] The ADEA makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age[.]” 29 U.S.C. § 623(a)(1). An individual must
be at least forty years old for the ADEA to protect him from discrimination. 29
U.S.C. § 631(a). Similar to a Title VII claim, a plaintiff alleging age
discrimination must either present direct evidence of discrimination or prevail
under the indirect method. Roberts v. Columbia Coll. Chi., 821 F.3d 855, 865 (7th
Cir. 2016). The plaintiff must also prove that his age was the “‘but-for’ cause of
the employer’s adverse decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
176 (2009).
[27] To prevail under the direct method, Mills must show a direct admission by
DCS that he was not hired because of his age, or he must show a “convincing
mosaic of circumstantial evidence that points directly to a discriminatory reason
for [DCS’s] action.” Roberts, 821 F.3d at 865 (quotations omitted). Mills
argues that the question, “Why do you want to come out of retirement?” is “an
obvious age related question.” Appellant’s Br. pp. 23-24. DCS contends that
this question does not automatically correlate to age discrimination. See Hazen
Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (holding that age and years of
service with an employer are “analytically distinct” and that “an employer can
take into account one while ignoring the other, and thus it is incorrect to say
that a decision based on years of service is necessarily ‘age based.’”). Herrmann
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and Reising stated that they asked the question to understand why Mills wanted
to return to a job and agency that he had previously left. We agree with DCS
that the question was innocuous and “analytically distinct” from asking about
Mills’s age; it served the purpose to understand why Mills sought
reemployment with the agency.
[28] Mills offers additional evidence of direct age discrimination by DCS. During
his interview, Mills told Reising and Herrmann that he planned “to work for
the State for 2-3 years to solidify my retirement income.” Appellee’s Br. p. 56;
Appellant’s App. Vol. II p. 157. The interviewers then told Starks that they had
concerns about Mills’s motives for returning to work for DCS. In an email to
Starks, Reising stated that Mills “wants the job for the money and the
retirement” and that these motives “don’t fit our agency goals.” Appellee’s
App. Vol. II p. 110. Mills claims that reliance on this statement is age
discrimination and offers evidence that substantially younger candidates that
were hired only stayed with DCS for less than two years. Appellant’s Br. pp.
18, 58. DCS defends its reliance on Mills’s interview answer because it requires
all new hires to go through an extensive three-month training program—a
program whose costs are covered by the agency. Appellee’s Br. p. 56. DCS’s
goal to keep its training costs to a minimum is not age discrimination. We,
again, conclude that Mills has failed to prove age discrimination with direct
evidence.
[29] Mills also raises arguments under the indirect method of proof. In order to
prevail, Mills must prove: (1) he was in the protected age group at the time of
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the alleged discriminatory conduct; (2) he was qualified for the job for which he
applied; (3) he was not hired; and (4) a younger candidate was treated more
favorably. Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995). Mills was
over sixty-two-years-old when he submitted his applications for the Family
Case Manager positions, met the qualifications for the job, was not hired, and
has offered evidence that substantially younger employees were hired instead.
We agree with Mills that he has established a prima facie case for age
discrimination. The burden then shifts to DCS to provide a legitimate, non-
discriminatory reason for choosing not to hire Mills. Id. at 780. As addressed
above, DCS did not think it was a fiscally responsible decision to hire a
candidate who openly disclosed that he would only work for the agency for two
to three years before retiring again. DCS also notes that a sixty-three-year-old
candidate was hired after Mills’s second interview. DCS has satisfied its
burden. The burden shifts back to Mills to show that DCS’s proffered reason is
pretextual—a lie. Id. Mills contends that DCS is not concerned about training
costs because younger candidates that were hired left the agency before working
for two years. Appellant’s Br. pp. 18, 58. Mills, however, fails to provide any
evidence that DCS, when it hired these candidates, was aware that they
planned to leave DCS within the first two years of their employment. Mills has
failed to prove that DCS’s legitimate, non-discriminatory reason for hiring other
candidates was pretextual.
[30] Mills also argues that DCS’s hiring practices have a disparate impact on
applicants over the age of forty. Like his sex-discrimination claim, Mills has
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failed to plead his disparate-impact age discrimination claim with specificity.
See supra Part II(A), slip op. pp. 14-15. Accordingly, we agree with the trial
court that DCS was entitled to judgment as a matter of law on Mills’s ADEA
claim.
C. Retaliation
[31] Mills’s final argument is that the trial court erred when it failed to separately
consider his retaliation claim against DCS. Title VII makes it illegal for an
employer to discriminate against an employee or applicant for employment
because he has “opposed any practice” that Title VII forbids, or because he has
“made a charge, testified, assisted or participated in any manner in an
investigation, proceeding, or hearing[.]” 42 U.S.C. § 2000e-3(a). A plaintiff
does not need to win on his underlying claims of discrimination to prevail on
his retaliation claim. See Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir.
2002). A plaintiff may employ either the direct or indirect method of proof to
prove his claim of retaliation. Poer v. Astrue, 606 F.3d 433, 439 (7th Cir. 2010).
[32] Under the direct method, “a plaintiff must show through either direct or
circumstantial evidence that (1) [he] engaged in statutorily protected activity;
(2) [he] suffered an adverse action taken by the employer; and (3) there was a
causal connection between the two.” Id. Mills argues that (1) he filed an
EEOC complaint of discrimination after being turned down for the job a second
time; (2) he submitted applications to DCS after filing his charge with the
EEOC; and (3) DCS has not interviewed him since his EEOC filing.
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Appellant’s Br. p. 47. The State concedes that Mills has established prongs one
and two, Appellee’s Br. p. 57-58, so we address only prong three.
[33] DCS interviewed Mills in October 2013 and January 2014. He then filed his
EEOC complaint in April 2014 and received his Notice of Right to Sue from
the EEOC on August 15, 2014. Mills then filed two more applications with
DCS on August 27 and October 30, but he was not interviewed for either
position. Mills argues that the timing of his EEOC filing and DCS’s refusal to
interview him is circumstantial evidence to establish the required causal
connection. The only evidence Mills offers regarding causation is temporal
proximity. “Evidence of temporal proximity, however, standing alone, is
insufficient to establish a causal connection for a claim of retaliation.” Mobley v.
Allstate Ins. Co., 531 F.3d 539, 549 (7th Cir. 2008). “Although there may be an
exception to this general rule when the adverse action occurs on the heels of
protected activity, such a circumstance would be limited to matters occurring
within days, or at most, weeks of each other.” Id. (quotations and citations
omitted). The timeline of events shows that four months transpired between
the time that Mills filed his complaint with the EEOC and submitted two
additional applications for employment with DCS. Because Mills has failed to
present any other evidence pointing to causation, we conclude that he has not
satisfied his burden of demonstrating retaliation under the direct-evidence
method.
[34] Under the indirect method, Mills must prove that he: (1) engaged in statutorily
protected activity; (2) met DCS’s legitimate expectations; (3) suffered a
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materially adverse action; and (4) was treated less favorably than similarly
situated employees or applicants who did not engage in statutorily protected
activity. Boston v. U.S. Steel Corp., 816 F.3d 455, 464 (7th Cir. 2016). DCS
concedes that filing a charge with the EEOC is a statutorily protected activity
and that Mills has satisfied prong one. DCS, however, contends that Mills did
not meet its expectations. In the two interviews Mills had with DCS, he stated
that he wanted to return to work for only two to three years to increase his
retirement income. Given the cost of training a new Family Case Manager,
DCS determined that it was not fiscally responsible to hire a candidate who
openly disclosed that he wanted the job for only a limited time. Additionally,
DCS provided legitimate, non-discriminatory reasons for not hiring Mills—
hard to engage in conversation, unable to give specific examples to illustrate the
use of essential skills, was rigid in his views of traditional and non-traditional
families, and gave generalized answers. Appellant’s App. Vol. II p. 159. We
agree with DCS that Mills did not meet the agency’s expectations. We
conclude that it would have been redundant for DCS to have continued to
interview Mills for a position that it had already determined was not a proper fit
for him. Accordingly, DCS’s actions were not retaliatory, and the trial court
did not err when it determined that DCS was entitled to judgment as a matter of
law on Mills’s retaliation claim.
[35] Affirmed.
Bailey, J., and Robb, J., concur.
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