Summary judgment for DCS on age, sex discrimination charges affirmed

The Indiana Department of Child Services did not discriminate against a former employee seeking to come out of retirement when it declined to move him through the interview process, the Indiana Court of Appeals decided Friday.

Robert Mills was employed with DCS as a child care center licensing consultant from 1975 until 2007, when he resigned to take a position with the Evansville Head Start program. He retired in 2010 at the age of 62, then decided to begin working again a few years later.

In October 2013, Milles applied for a family case manager position with DCS and was selected for an interview. During the interview, he told DCS staff that he wanted to come out of retirement for two to three years to solidify his retirement income, and Elizabeth Herrmann, a DCS supervisor, recommended that Mills not move on in the interview process. Herrmann specifically 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 … and provided generalized answers to questions about child abuse or neglect.”

Three months later, Mills interviewed for another family case manager position and repeated that he wanted to come out of retirement to increase his pension. Herrmann expressed the same concerns about Mills as she had after his previous interview and recommended that he not move on. A 63-year-old woman was selected for the position.

Mills then filed charges against DCS with the Equal Employment Opportunity Commission, alleging sex and age discrimination. The EEOC issued a notice of right to sue but took no further action. Mills then applied for two additional family case manager positions but was not interviewed for either opening.

In November 2014, Mills filed a pro se suit against DCS, Herrmann and other DCS employees, including Director Mary Beth Bonaventura, alleging age and sex discrimination and retaliation for filing a charge with the EEOC. Additionally, Mills submitted two additional applications with DCS, but was not interviewed for either position.

DCS moved for judgment on the pleadings on many of Mills’ claims, and in response, Mills dropped Bonaventura and three of the employees and his Indiana Age Discrimination Act claim but added a claim for violations of his rights under the Equal Protection Clause. The Vanderburgh Superior Court granted DCS’ motion for judgment on the pleadings, leaving Mills with claims of age and sex discrimination and retaliation. The department then moved for summary judgment on those claims, which was granted.

On appeal, Mills argued that under 42 U.S.C. 2000-e(2)(a)(1), an “employer” can include supervisors such as Herrmann and the other DCS employees he named as defendants. But in a Friday opinion, Indiana Court of Appeals Chief Judge Nancy Vaidik rejected that notion, writing that the 7th Circuit Court of Appeals had rejected similar arguments in the past.

However, the appellate panel agreed with Mills’ argument that the trial court erred in granting judgment on the pleadings on his sex and age discrimination claims against the employees because the trial court failed to explain its ruling and because Equal Protection Clause claims can be brought against individual government employees. But such error was harmless, Vaidik said, because “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.”

Finally, the Court of Appeals affirmed the grant of summary judgment, finding Mills failed to establish disparate-treatment or disparate-impact claims of age or sex discrimination and also failed to demonstrate retaliation against him after filing his EEOC claims.

The case is Robert C. Mills v. Indiana Department of Child Services, Shirley Starks, Kristen L. Sparks, Melanie Reising, and Elizabeth Herrmann, 82A01-1606-PL-1482.