7th Circuit rejects employee's age discrimination claim involving subjective tests

No age discrimination occurred when an employer didn't promote a 74-year-old employee who had failed a mandatory subjective test, the 7th Circuit recently ruled. The court said the employee failed to show objective evidence of discrimination other than that the test scorers knew his age. Therefore, it ruled in the employer's favor.

Facts

Romuald Tyburski, then 74 years old, applied for a promotion with the Chicago Department of Water Management. As part of the application process, he was required to pass a three-part examination (two parts written and one oral). He passed the written parts but failed the oral exam after receiving a score of 42% when 60% was required to pass. Therefore, he wasn't promoted.

Two chief operating engineers conducted and scored Tyburski's oral exam. There were five questions, and each had a possible score of five points. The scorers multiplied the scores by four to obtain a possible total score of 100%. They used the city's HR standard exam questions, answers, and scoring rubric to grade the exam.

Tyburski sued the city, alleging failure-to-promote and hostile work environment claims under the Age Discrimination in Employment Act (ADEA). His main assertion under the failure-to-promote claim was that the city improperly scored his oral exam since it was subjective and therefore used the failing grade as a pretext (or cover-up for illegal discrimination) to deny him the promotion. The district court dismissed the case, and he appealed.

7th Circuit's ruling