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 failureto-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 yearround 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 company, 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.