A recent 7^th Circuit case Derrick McCoy v. Markwayne Mullin, No. 25-1533, reaffirms the evidentiary standards for a claim of discrimination, and highlights an important consideration when evaluating a potential claim.  Relying on a few stray offending remarks by a superior, will likely not be sufficient to create an inference of discrimination, particularly if those remarks are from someone other than the decision-maker.  Analyzing the facts of the case under both the traditional burden shifting test in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as well as the “holistic” evidentiary standard set forth in Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7^th Cir. 2016), the Court determined that the plaintiff presented little to no evidence that the decision not to rehire him was based on his age.  This case is a good reminder that just because an individual may fall within a protected class, that in and of itself does not mean an adverse employment decision was made for discriminatory reasons. The evidence must amount to something more than a few stray remarks by a superior.  It is also a good reminder to employers that it is important to maintain thorough employment records, clearly documenting the decision-making process behind any employment action. 

Case Summary: Plaintiff Derrick McCoy (“McCoy”) worked as a protective service officer for a private security services company.  McCoy was terminated after his handling of an incident involving an unruly patron.  McCoy sought his old job back. The security company was willing to reinstate McCoy to work on an assignment with the Department of Homeland Security (DHS), as long as DHS determined McCoy was suitable for reinstatement.  But, after reviewing the circumstances of his termination, DHS provided him with an unfavorable suitability rating.  McCoy then sued DHS alleging that he was discriminated against on the basis of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA).  Setting aside the issue of whether DHS was his actual employer, the Court found that McCoy presented no evidence that the denial of his reinstatement was because of his age.  As explained by the Court, the only evidence presented remotely related to the issue of age was a remark by McCoy’s supervisor that certain security personal were “too old” to do the job.  The court analyzed the evidence under the McDonell Douglas burden shifting framework, under which McCoy must demonstrate a prima facie case that: (1) he was over 40 years of age; (2) he was meeting his employer’s legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated, substantially younger employees were treated more favorably.  Given the lack of evidence, the Court determined that McCoy failed on at least the second and fourth elements, having put forth no evidence of a credible comparator, nor any evidence that he was meeting DHS’s legitimate expectations.  The court also analyzed the case under Ortiz’s holistic review of the evidence, and examined “whether a plaintiff presented enough evidence to allow the jury to find in his favor.”  Igasaki v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 957-58 (7^th Cir. 2021).  Examining the single remark by McCoy’s supervisor, the court found that there was no evidence that the unsuitability determination was related to age, and that “stray remarks are typically insufficient to create an inference of discrimination when not made by a final decision-maker.” citing Mach v. Will Cnty. Sheriff, 580 F.3d 495 499 (7^th Cir. 2009).  The opinion was written by Judge Thomas L. Kirsch II.