For an enhanced digital experience, read this story in the ezine.
In the case of Steele v. Fox Valley Park District, Case No. 19-cv-5334 (N.D. Ill. 2/25/2022), Plaintiff Roberta Steele alleged age discrimination had forced her to resign from her employment with Defendant Fox Valley Park District in Illinois.
Facts of the Case
In August 1998, the Fox Valley Park District (the Park District) had hired Plaintiff as a part-time dance assistant for the dance program at the Park District’s Prisco Community Center. At the time, Plaintiff was 42 years old. In 2004 or 2005, the Park District promoted Plaintiff to dance coordinator. Then, in 2010, the Park District promoted her again to the full-time position of recreation supervisor for the dance program.
As recreation supervisor, Plaintiff oversaw the entire dance program. Plaintiff supervised employees and oversaw payroll, budgeting and dance registration. Of particular importance, Plaintiff was responsible for inputting class descriptions on the Park District’s software, so that the public could see the class offerings. When Plaintiff became the recreation supervisor, her direct supervisor was the facility manager for Prisco.
Plaintiff received her first disciplinary action in 2012, two years after she became the recreation supervisor. In July 2012, the Park District issued her a corrective discipline form for a “Procedure Violation.” The form stated that Plaintiff had failed to accurately pay two members of her staff during a recent pay period.
The form included a paragraph that covered the necessary “Corrective Action.” The form explained that Plaintiff needed to improve communications with her staff about their schedules. Plaintiff also was informed that she needed to get better at keeping a file of their schedules, hours and shifts to accurately complete payroll every two weeks, among other actions.
One month later, in August 2012, Plaintiff’s supervisor placed her on a Performance Improvement Plan. The plan spanned nine pages, covering Plaintiff’s specific areas of needed improvement, including: management and leadership skills, self-management skills, and programming. The plan further noted that Plaintiff’s “continued employment with the district was in jeopardy” and the Park District “needed to see significant improvement” for Plaintiff to “keep her job.”
Plaintiff’s supervisor testified that Plaintiff subsequently “righted the ship and completed the Performance Improvement Plan.” There was no evidence of any additional problems in the few years that followed.
In November 2012, Plaintiff began reporting to the performing arts manager at the Prisco facility. In September 2015, the performing arts manager issued Plaintiff her second corrective discipline form for submitting “paperwork for staff evaluations and pay raises four months late.” The form described “Corrective Action” needed to be taken by Plaintiff; i.e., “adhere to timelines in place for staff evaluations and raises.”
Plaintiff disagreed with the accuracy of information on this second corrective discipline form. Plaintiff claimed she had turned in the staff paperwork on time because her instructors “were paid and received their raises differently than other employees of the Park District.” Moreover, Plaintiff noted these particular employees “had not finished out the calendar year for the dance session.” Further, Plaintiff claimed her late paperwork had been “acceptable every year except this one.”
The corrective discipline form included an “Employee Response” section, which asked: “Do you agree with the description and the action? If not, please explain.” Plaintiff admitted she had left this Employee Response section blank and had not explained her position on the corrective discipline form itself. Plaintiff, however, did claim that she had verbally objected to the performing arts manager before signing and dating the form.
Younger Supervisor Language
In April 2017, a new 37-year-old facility manager came to Prisco. Plaintiff alleged her new supervisor discriminated against older employees, using words and phrases like “stale,” “stagnant,” “not up to the task” or “not able to handle” when referring to older employees. In addition, Plaintiff claimed this supervisor used phrases, like “keep everything fresh,” “we need new” and “push for innovation.” According to Plaintiff, her supervisor “used words like this at a staff meeting” and “she directed it towards older employees and humiliated them.”
The new supervisor admitted she used these phrases and similar language, but argued her purpose was not age discrimination. Instead, the supervisor said she used phrases, like “keep things fresh,” to refer to innovation and staff creativity, and used words, like “stagnant,” to refer to the current programming. As described by the supervisor, she would use this language to ask: “What more can we do to create revenue and increase participation?” Plaintiff, however, characterized her supervisor’s language as “ageist.” Two other employees indicated they had heard the supervisor use similar language with older employees.
Program Registration Software
In 2017, the Marketing Department’s timelines for the activity guides required recreation supervisors, including Plaintiff, to enter all programs into RecTrac by February 9, 2017. RecTrac is a software platform that allowed members of the public to see offerings from the Park District and register online.
Plaintiff did not enter the room reservation information for the dance programs by the deadline. Instead, Plaintiff claimed, “[T]here was no deadline for the dance room reservations,” and she had had “a longstanding practice of waiting until later in the season to reserve dance rooms.” After missing the deadline, Plaintiff told her supervisors that she would “begin following the Marketing Department’s deadlines in the future.”
When Summer Registration Day for the park activities arrived, some of the information for the dance programs was incorrect in RecTrac, including the ages for two dance classes. As a result, residents had difficulty registering for dance classes due to an inaccurate program entry in RecTrac, which included incorrect age levels, inactive classes and fees that were different from the printed activity guide.
On May 15, 2017, these registration problems resulted in a third corrective discipline form from Plaintiff’s supervisor that required her to correct the fees and age levels. The form also noted that Plaintiff needed to have greater attention to detail during program entry, and that she needed to enter all information in RecTrac by seasonal deadlines and keep it updated before registration. The form concluded by noting that Plaintiff could face further disciplinary action up to and including termination if she took no corrective action.
Termination Memorandum
On June 14, 2017, the Park District held a meeting with Plaintiff and her supervisors in which a memorandum was read, providing a number of reasons for terminating Plaintiff’s employment. The memorandum noted Plaintiff’s “history of missing deadlines and her lack of attention to detail.” During the meeting, Plaintiff elected to resign in lieu of termination. She provided the Park District with “a letter saying she was retiring” the next day, on June 15, 2017.
Plaintiff believed her termination had nothing to do with her performance. Instead, Plaintiff claimed “the Park District let her go because of age discrimination.” When she resigned, Plaintiff was 61 years old.
Age Discrimination Lawsuit
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) on April 9, 2018. The EEOC issued her a Dismissal and Notice of Rights on May 13, 2019. Plaintiff then filed a complaint in federal district court on August 7, 2019, alleging age discrimination under the Age Discrimination in Employment Act (ADEA). Following discovery, the Park District moved for summary judgment.
The federal district court would grant the Park District’s motion for summary judgment if Plaintiff had failed to produce sufficient evidence in the pretrial record from which a reasonable jury could return a verdict that found ADEA age discrimination. To avoid summary judgment, Plaintiff would, therefore, have to “identify specific facts” indicative of age discrimination in violation of the ADEA.
As cited by the court, to constitute a violation of the ADEA, “plaintiff’s age must have actually played a role in the employer’s decision-making process and had a determinative influence on the outcome”:
A plaintiff seeking to recover for disparate treatment under the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. In other words, to recover under a theory of disparate treatment in the ADEA context, it’s not enough to show that age was a motivating factor. The plaintiff must prove that, but for her age, the adverse action would not have occurred.
Age Discrimination Evidence
In addition to a direct admission that the defendant fired Plaintiff on the basis of her age, the court noted circumstantial evidence also could establish age discrimination by demonstrating the following:
(1) suspicious timing; (2) ambiguous statements or behavior towards other employees in the protected group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically receive better treatment; and (4) evidence that the employer offered a pretextual reason for an adverse employment action.
In addition, the court noted a plaintiff could proceed with an ADEA claim by coming forward with evidence that established the following:
(1) she is a member of a protected class, (2) she was meeting the defendant’s legitimate expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees who were not members of her protected class were treated more favorably.
According to the federal district court, if Plaintiff produced such evidence, “the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” In light of a legitimate nondiscriminatory reason, the burden of proof would then shift back to Plaintiff “to submit evidence that the employer’s explanation is pretextual.”
Changing the Culture
Plaintiff had claimed her evidence, when viewed as a whole, included “enough circumstantial evidence of age discrimination to support a verdict in her favor.” In so doing, Plaintiff contended the following “statements and behavior of her supervisors” provided “evidence of pretext”:
(1) comments about changing the culture at the Park District; (2) phrases by the Facility Manager supervisor about the need for something new; (3) a perception that older employees were treated worse than younger employees; and (4) complaints about age discrimination to the EEOC by other older employees.
In particular, Plaintiff claimed age discrimination motivated young management in the Park District who wanted “to change the culture at the Park District and push the older employees out.” In so doing, Plaintiff had cited “the ages of the new management, all of whom were between 27 and 37 years old.”
The federal district court rejected this argument. In the opinion of the court, “the relative ages of the terminating and terminated employee are relatively unimportant” in establishing ADEA discrimination. Moreover, the court found “the desire to establish a new management philosophy by assembling a new management team that displaces older employees does not ipso facto [i.e., in and of itself] constitute ADEA discrimination”:
Companies, businesses, and government agencies routinely go through culture changes. That’s how they survive long term in an ever-changing world. A desire for a new approach might add a little something to the mix when evaluating a discrimination claim, but it doesn’t add much.
Workplace Comments
Similarly, the federal district court found “stray” workplace comments and remarks by Plaintiff’s supervisor regarding “the need for a fresh approach” were not necessarily “an expression of bias against older employees” and such comments had not been directed at Plaintiff’s job performance.
Further, the court found the supervisor’s remarks lacked a direct link to the Park District’s termination decision. Instead, the court found the supervisor’s statements were made “in the context of innovating the Park District’s programming and improving client experiences” and were not indicative of “the need for a new approach that targeted the old and spared the young.”
As noted by the federal district court, “age-based derogatory remarks made around the time of and in reference to an employment action are relevant to a finding of discrimination.” In this particular instance, however, the court found no indication whether or not the supervisor’s comments “took place around the time of the termination.” In the opinion of the court: “Without a temporal link, the comments don’t lend much support to the notion that Plaintiff’s age was the reason for her termination.”
Plaintiff also had claimed her supervisor was more friendly with younger employees while micromanaging and being “harsh and rude to older employees.” In the opinion of the federal district court, rude and offensive comments by a micromanaging boss “doesn’t say much about whether the boss terminated someone because of her age” in violation of the ADEA:
Title VII [of federal civil rights law] is not a general civility code... [which would impose] liability based on the sporadic use of abusive language. Anti-discrimination laws are not triggered by rude behavior.
Similarly Situated Employees
Plaintiff also had alleged “the Park District extended deadlines for younger employees and cut them some slack when they had performance problems.” To be considered relevant within the context of an ADEA claim, the federal district court would require these younger employees to be “similarly situated” to Plaintiff:
In general, a plaintiff who believes another individual is similarly situated must at least show that this comparator (1) dealt with the same supervisor, (2) was subject to the same standards, and (3) engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish his conduct or the employer’s treatment of him. Although precise equivalence is not required in a comparator, a similarly situated employee must be directly comparable to plaintiffs in all material respects.
In this particular instance, the court found no such evidence that these younger employees had comparable jobs, or whether they had a long disciplinary history similar to Plaintiff’s.
Feeling Undervalued
Plaintiff had further claimed “older employees were undervalued, treated poorly and pushed out, fired or forced to take early retirement.” Plaintiff had testified that other older employees had told her they had feelings of being treated differently and not being valued in an unhealthy work environment.
According to the court, Plaintiff’s ADEA claim could be helped by evidence “the Park District forced older employees to hit the exits, while allowing younger employees to stay.” The court, however, found no such evidence existed in the pretrial record based upon “feelings about an unhealthy environment”:
There’s a world of difference between former employees feeling undervalued, and an entity forcing out old employees because of their age. The evidence is simply too amorphous and insubstantial to get to trial.... Conclusions must be supported by specific facts, otherwise they are not sufficient to avoid summary judgment.
Pretext
In the opinion of the federal district court, the Park District had given “a legitimate, nondiscriminatory reason” for termination of Plaintiff’s employment. The remaining question before the court was, therefore, “whether the Park District’s explanation was pretextual.” As described by the court, “the explanation from the Park District is straightforward”:
The Park District let her go because she had a disciplinary history, and it caught up with her when the mistakes piled up. The Park District points to Plaintiff’s “missing deadlines, lacking follow through on assignments, and exhibiting a lack of attention to detail when performance issues were brought to her attention.”
As defined by the court, pretext “is not just faulty reasoning or mistaken judgment on the part of the employer; it is a lie, specifically a phony reason for some action.” Moreover, to show pretext, the court would require Plaintiff to “come forward with evidence” that demonstrated “the employer’s nondiscriminatory reason was dishonest” and “the employer’s true reason was based on a discriminatory intent.”
In alleging pretext, Plaintiff claimed the Park District had “exaggerated her mistakes” and had “offered differing explanations for her termination.” The federal district court, however, found Plaintiff’s argument “overlooks and downplays her work history, which was decidedly choppy”:
She was disciplined in 2012. She was placed on Performance Improvement Plan in 2012. She was disciplined again in 2015. And she was disciplined again in 2017. All of that took place before the deadline problems in 2017, which immediately preceded her termination. That’s a steady current of evidence flowing against her.
Agency Personnel Policy
Plaintiff also faulted the Park District for terminating her, instead of putting her on a Performance Improvement Plan. In so doing, Plaintiff pointed to a Park District policy, which provided: “whenever possible, to resolve disciplinary and/or performance issues by use of verbal, written or other forms of coaching and/or counseling.” According to the court, “the absence of progressive discipline, such as warnings to the employee about poor performance, can support a finding of pretext,” but “the employer must fail to follow its own internal procedures.”
In this particular case, the court noted “the Park District did, in fact, use progressive discipline with Plaintiff,” including “verbal, written or other forms of coaching and/or counseling at least four times with Plaintiff.” Further, the federal district court found the Park District followed its own personnel policy:
The Park District’s personnel policy states... “a non-exhaustive list of conduct and/or performance issues that may result in disciplinary action by the District, up to and including dismissal,” the policy manual lists “incompetence, ineffectiveness, inefficiency or wastefulness in the performance of assigned duties and responsibilities” and “failure or refusal to carry out instructions, acts of insubordination, willful disregard of orders.”
Accordingly, pursuant to this Park District’s policy, in the opinion of the court, “terminating Plaintiff for continuing poor performance was within the field of play.”
The federal district court, therefore, granted the Park District’s motion for summary judgment effectively dismissing Plaintiff’s ADEA age discrimination claim.
See Also: Age Discrimination Claim by Beach Patrol Chief, James C. Kozlowski, Parks & Recreation, Nov. 2016, Vol. 50, Iss. 11.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Law review articles archive (1982 to present)