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.
