UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

AARON CARSON, CHARLES COLLINS, )

JOHN CURTIS, MARY DOBRIJEVICH, )

DONNIE JONES, CATHERINE KOBY, )

GWEN LANE, MATTHEW LUBARSKI, )

JOHN J. MCBRIDE, SR., JANET NICKOVICH, )

RONALD PAULSIN, CHARLES J. PODGORNY, )

PATTIE G. PODGORNY, JOHN D. PRUZIN, )

DANNY SEBBEN, HELEN G. SUTTON, )

DENNIS TOBIN, CAMILA A. TREVINO, )

MARIAN VUKAS, and SUSAN WYATT, )

Plaintiffs, )

)

v. ) CAUSE NO.: 2:14-CV-117-PRC

)

LAKE COUNTY, INDIANA, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on (1) Defendant’s Motion for Summary Judgment [DE 40],

filed by Defendant Lake County, Indiana, (“Lake County”) on June 13, 2016; (2) Plaintiffs’ Motion

for Partial Summary Judgment [DE 42], filed by all Plaintiffs on June 13, 2016; (3) Defendant’s

Motion to Submit Omitted Exhibit [DE 45], filed by Lake County on July 14, 2016; (4) Plaintiffs’

Motion to Strike [DE 49]; and Defendant’s Request for Oral Argument [DE 53], filed by Lake

County on August 8, 2016. For the reasons set forth below, the Court grants summary judgment in

favor of Defendant Lake County, Indiana on all of Plaintiffs’ claims.

PROCEDURAL BACKGROUND

On April 11, 2014, a Complaint was filed by Plaintiffs Aaron Carson, Charles Collins, John

Curtis, Mary Dobrijevich, Donnie Jones, Catherine Koby, Gwen Lane, Matthew Lubarski, John J.

McBride, Sr., Janet Nickovich, Charles J. Podgorny, Pattie G. Podgorny, John D. Pruzin, Danny

Sebben, Helen G. Sutton, Dennis Tobin, Camila A. Trevino, Marian Vukas, and Susan Wyatt.

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Plaintiffs allege that they were terminated from their employment by Defendant Lake County in

violation of their rights under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.

(ADEA), and in violation of their rights pursuant to the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution, brought under 42 U.S.C. § 1983.

Lake County filed an Answer on May 28, 2014.

On October 1, 2014, Ronald Paulsin filed a Motion to Intervene, which was granted on

October 2, 2014. Paulsin’s Intervenor Complaint was filed on October 2, 2014, bringing the same

claims as those brought by the original Plaintiffs.

On June 13, 2016, Lake County filed a Motion for Summary Judgment on all claims, and

Plaintiffs filed a Motion for Partial Summary Judgment on all claims.

On July 14, 2016, Lake County filed a Motion for Leave to File Omitted Exhibit, asking the

Court to allow it to file the Declaration of Larry Blanchard, which Lake County had relied on in its

Motion for Summary Judgment but had not attached to the motion. Lake County also filed its

response to Plaintiffs’ Motion for Partial Summary Judgment.

The same day, Plaintiffs filed their response to Lake County’s Motion for Summary

Judgment. Plaintiffs also filed a Motion to Strike, asking the Court to strike Lake County’s reference

to the Declaration of Larry Blanchard in its Memorandum in Support of its Motion for Summary

Judgment because Lake County did not attach the declaration as an exhibit to its motion.

On July 15, 2016, Plaintiffs filed a response to the Motion for Leave to File Omitted Exhibit.

On July 27, 2016, Lake County filed a reply in support of its Motion for Leave to File Omitted

Exhibit and in opposition to Plaintiffs’ Motion to Strike. 

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On August 1, 2016, Plaintiffs filed a reply in support of their Motion for Partial Summary

Judgment. Defendants have not filed a reply in support of their Motion for Summary Judgment, and

the time to do so has passed.

The parties filed forms of consent to have this case assigned to a United States Magistrate

Judge to conduct all further proceedings and to order the entry of a final judgment in this case.

Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

MOTION TO STRIKE AND MOTION TO SUPPLEMENT

Plaintiffs’ Motion to Strike and Lake County’s Motion to Submit Omitted Exhibit both

concern Lake County’s failure to attach Exhibit 1, which is the Declaration of Larry Blanchard, to

its Motion for Summary Judgment. The Declaration of Larry Blanchard is extensively cited for

background information on the financial health of Lake County. However, little of the information

is material to the Court’s decision on the central legal issues, and the substance of the Declaration

is repeated in other evidence offered by both Lake County and Plaintiffs. In addition, as recognized

by Plaintiffs, the Declaration of Larry Blanchard is properly considered in response to Plaintiffs’

Motion for Partial Summary Judgment, as it was timely submitted. Extensions of time for the filing

of dispositive motions were granted, and the trial date is quickly approaching. Thus, because most

of the information in Larry Blanchard’s Declaration is immaterial, because Plaintiffs would be

prejudiced by not having had the benefit of the Declaration in responding to Lake County’s Motion

for Summary Judgment, and because there is insufficient time for supplemental briefing prior to

trial, the Court grants Plaintiffs’ Motion to Strike and denies Lake County’s Motion to Submit

Omitted Exhibit.

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SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure require that a motion for summary judgment be granted

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a party who fails

to make a showing sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). “Summary judgment is appropriate when no material fact is disputed and the

moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could

find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566

(7th Cir. 2014).

A party seeking summary judgment bears the initial responsibility of informing the court of

the basis for its motion and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, that it believes

demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.

Civ. P. 56 (a), (c). The moving party may discharge its initial responsibility by simply

“‘showing’—that is, pointing out to the district court—that there is an absence of evidence to

support the nonmoving party’s case.” Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798

F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial,

the moving party is not required to support its motion with affidavits or other similar materials

negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08;

Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013). 

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“Once the moving party puts forth evidence showing the absence of a genuine dispute of

material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating

a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party

cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See

Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)

(1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails

to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion

and supporting materials—including the facts considered undisputed—show that the movant is

entitled to it . . . .” Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.

In viewing the facts presented on a motion for summary judgment, a court must construe all

facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor

of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765

(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court’s role is not to

evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth

of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,

477 U.S. at 249-50.

On cross motions for summary judgment, a court construes, “all inferences in favor of the

party against whom the motion under consideration is made.” Speciale v. Blue Cross & Blue Shield

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Ass’n, 538 F3.d 615, 621 (7th Cir. 2008). The Court looks to the burden of proof each party would

bear on an issue at trial. Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 643 (7th Cir. 2007)

(quoting Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)).

MATERIAL FACTS1

Defendant Lake County, Indiana’s health care self-insurance fund liquidated its cash reserve

by 2013 from a fund that had a balance of $11 million as of 2007.

From 2007 through 2013, Lake County offered all of its employees over the age of sixty-five

an opportunity for voluntary retirement with the ability to immediately begin receiving Public

Employees’ Retirement Fund benefits and also maintain health insurance as secondary coverage to

Medicare for a period of time. Under the 2010 Early Retirement Options, employees were presented

with three options. “Option Two,” relevant to this litigation, provided that an employee who is age

sixty-five and who has at least five years of continuous service on or before a given date: (1) will

receive five years of health insurance coverage at the same rate as regular full-time employees after

which the rate would increase to the rate charged to other retirees; (2) must enroll in the Medicare

program with Lake County’s health insurance plan serving as secondary coverage to Medicare

coverage; and (3) may return to work at Lake County on a part-time basis, not to exceed twenty-four

hours per week at their pre-retirement hourly wage. If the employee’s employment is terminated

(whether voluntarily or through layoff/reduction in force), the employee would remain eligible for

1

 In their reply in support of their Motion for Partial Summary Judgment, Plaintiffs criticize Lake County for

not providing a “Statement of Genuine Disputes” as required by Northern District of Indiana Local Rule 56-1(b)(2). The

objection is curious as Lake County provide a statement titled “Statement of Genuine Issues of Material Fact,” which

is substantively a statement of genuine disputes and which identified one disputed fact. Lake County disputed Plaintiffs’

statement in their motion that they were “full-time” employees at the time their employment was terminated; Plaintiffs

have since acknowledged that this was a scrivenor’s error and that they were part-time employees.

In contrast, Plaintiffs, in responding to Lake County’s Motion for Summary Judgment, do not identify any

genuine disputes or issues of fact notwithstanding the section of their brief titled “Statement of Genuine Disputes.” The

section is a statement of material facts, none of which conflict with the facts set forth by Lake County in its motion.

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the reduced cost of health insurance for the five years. Also, “[t]his option does not guarantee part

time employment.” (Def. Br., Ex. 5, p. 2). Lake County offered health insurance coverage to retirees,

including part-time employees over the age of sixty-five, through Aetna Insurance (“Aetna”).

As part-time employees of Lake County, Plaintiffs were not eligible for full-time benefits

but received the Medicare supplemental health insurance policy through Aetna that was paid for by

Lake County. They received this benefit either as a result of their prior employment with Lake

County or through a spouse who was employed by Lake County.

Sometime in 2013, Lake County learned from Aetna that, under the Patient Protection and

Affordable Care Act, commonly called the Affordable Care Act, employees who had retired and

been rehired part-time who were receiving the Aetna supplemental coverage either would not be

able to remain employed or would have to give up the health insurance supplement. As a result,

Lake County hired Larry Grudzien, an employee benefits attorney, and tasked him to look at Aetna’s

contention that it would no longer allow active, part-time employees to participate in the retiree-only

insurance plan as a result of the Affordable Care Act. Attorney Grudzien met with the Lake County

Commissioners regarding his opinion on this issue.

Thomas Dabertin (the Lake County Human Resources Consultant) and Lake County

Commissioner Michael Repay presented a PowerPoint presentation to Lake County officials and

department heads entitled “The Health Care Reform Act and the Medicare Secondary Rules: How

do these affect a retired and then rehired part-time Lake County employee?” (Pls. Mot., Ex. 14, p.

1). The PowerPoint presentation answers the question, “What Employees Does this Affect?”:

An affected employee meets ALL of the following criteria:

1. Has retired from and then was rehired part-time by Lake County;

2. Is over 65;

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3. Has Medicare as Primary Medical Coverage;

4. Is eligible for or currently has Aetna as the Lake County Government Retiree

Health Care Plan.

Id. at 3. The PowerPoint presentation further explains: “Under the new requirements of the Health

Care Reform Act and the Medicare Secondary Rules individuals who are retired and rehired by their

former employer (paid either by W-2 OR 1099) ARE NOT eligible for the Retiree Supplemental

Medical Plan.” Id. at 5. The document advises that an affected employee becomes ineligible for the

Aetna Retiree Supplemental Coverage the day that the employee is rehired part-time by Lake

County. It also asserts that affected employees “must be removed as Lake County employees before

October 1, 2013.” Id. at 7. The PowerPoint presentation advises that, going forward, the Lake

County Council and Lake County Board of Commissioners need to create a procedure to insure that

future Lake County retirees on Medicare are not rehired part-time and that “an affected employee

at 65 will need to be released from Lake County employment.” Id. at 12.

On August 21, 2013, Dabertin wrote a letter to all but one of the Plaintiffs, terminating the

employment of each as of September 30, 2013. (Plaintiff Ron Paulsin was terminated in 2014 with

an identical letter.) The letter explains that the Affordable Care Act regulates the rehiring of retired

employees and the health insurance coverage that those individuals receive. He wrote:

[A]n individual that meets all of the following provisions may not be employed and

receive health insurance benefits:

• The individual has retired from, and then was rehired part-time by Lake

County;

• The employee is over 65;

• The employee receives Medicare as his/her primary medical coverage;

• The individual is currently insured through supplementary coverage (Aetna)

provided by the Lake County Government Insurance Plan.

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(Def. Mot., Ex. G). The letter goes on to provide that the recipient of the letter met the four criteria

and, as a result, “we must conclude your employment with Lake County no later than September 30,

2013 to be in compliance with the new federal law.” Id.

Plaintiffs were part-time employees of Lake County, all of whom were over the age of sixtyfive when their employment was terminated.2

 At the time of their termination, each Plaintiff was

meeting the reasonable job performance expectations of Lake County. See (Pls. Mot., Ex. 36 (Lake

County’s Answer to Pls. Req. for Admis. No. 17)).

Lake County’s Answers to Interrogatories identify four individuals who participated in the

process and the decision to terminate Plaintiffs’ employment: Dabertin and Lake County

Commissioners Roosevelt Allen, Michael Repay, and Gerry Schueb. Lake County indicated in

response to an interrogatory that the decision was based upon budgetary and fiscal concerns

contained in recommendations that were made by Attorney John Dull and Dabertin after

consultation with Lake County’s insurance plan administrator, the Lake County Council and its staff,

legal counsel with specific expertise in the Affordable Care Act, and experts further identified in

Lake County’s interrogatory answers. In response to Interrogatory No. 11, Lake County identified

Grudzien as an expert witness on its behalf, representing that his testimony would address the impact

of the Affordable Care Act on the Lake County Retiree Health Insurance Plan that “ultimately

necessitated the termination of each Plaintiff.” (Pls. Mot, Ex. 13, p. 6).

On September 7, 2013, Grudzien sent a letter to the Lake County Commissioners with the

subject line “Rehiring Retirees–Legal Consequences.” The letter provides a factual background:

2

 Plaintiffs state in their Statement of Genuine Disputes in their response brief that “[m]ost, but not all, were

retirees of the defendant who had been rehired as part-time employees.” (Pls. Resp. 2). However, it is not clear how the

cited evidence supports this statement.

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Your retirees are covered under the Aetna Medical Supplemental Policy (“Policy”).

They have come back to work for you as either a part-time employee . . . or as an

independent contractor. These employees are not eligible for full-time benefits.

Aetna has advised that by rehiring these retirees, it will no longer consider a RetireeOnly plan. Aetna wants these part-time and independent contractors removed from

the Policy, so that the Policy does not lose the exemption from Health Reform and

other federal mandate.

(Def. Mot, Ex. I, p. 1) (emphasis added). Grudzien then provides the legal background of standalone retiree medical plans prior to the passage of the Affordable Care Act, such as the Aetna plan,

and their exemption from many of the Health Insurance Portability and Accountability Act of 1996

(“HIPAA”) requirements. A “retiree-only plan” is defined as any group health plan with less than

two participants who are “current employees.” He then explains special considerations for defining

“rehired retirees.” Next he lists the numerous “insurance market reforms” of the Affordable Care

Act from which retiree-only plans are exempt as well as those sections with which retiree-only plans

must comply. Grudzien then opines that, although HIPAA regulations do not define who is a current

employee for purposes of the retiree-only exemptions, “a retiree who is rehired as an employee . .

. should be treated as a current employee that counts against retiree only plan status and should be

covered under the ERISA plan maintained for purposes of current (i.e. active) employees

immediately upon rehire.” Id. at p. 3. 

Grudzien goes on to explain that the Medicare Secondary Payer rules govern when a group

health plan must first pay and when it may pay secondary on a claim for medical care if an

individual is covered under both a group health plan and Medicare. “As a general rule, the Medicare

Secondary Payer statute prohibits a group health plan from ‘taking into account’ the Medicare

entitlement of a current employee or a current employee’s spouse or family member . . . .” Id. at 4.

He explains that former employees and their family members who are participating in a group health

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plan generally will not be subject to the Medicare Secondary Payer requirements (e.g. Medicare will

be the primary payer) for Medicare entitlement based on age or disability. 

The special rule for rehired retirees entitled to retiree medical coverage is that “a rehired

retiree who is covered by a group health plan and who performs services sufficient to qualify for

coverage on that basis . . . is considered to be covered by virtue of current employment status . . .

.” Id. at 5. 

Grudzien ultimately opines: 

Hiring these retirees will have a major impact. These individuals will be treated as

current employees and the exemption for the retiree plan is lost. If you provide these

rehired employees with health coverage, it must be primary to Medicare.

Because of the requirement under [the Affordable Care Act] and the Medicare

Secondary Rules, I advise you not to rehire any retirees. If you decide to [rehire]

them, [rehire] them as full time and offer them current employee coverage.

Id. at 5-6.

On September 12, 2013, Lake County sent each Plaintiff a letter with a copy of Grudzien’s

opinion attached. The letter provides:

Recently, you received correspondence regarding your employment status with Lake

County Government and the impact of changes in federal law in regard to the health

insurance you receive. Due to those changes, your part-time employment is being

ended as of October 1, 2013. That decision was made only after detailed research

was performed and an attorney who is an expert in the field of insurance law was

consulted.

(Def. Mot., Ex. 11).

David Baker, the third-party administrator for Lake County’s self- insurance program,

explained that, if rehired retirees receive the Aetna supplemental insurance, the Aetna plan would

no longer be considered a Medicare supplement, which would require compliance with several laws

and would result in increased rates. At his deposition, Grudzien testified that, to allow part-time

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employees to remain in the plan would have, “blow[n] [the plan] apart.” (Def. Mot., Grudzien Dep.,

41:19-21). Dabertin testified that the letter explained that hiring the retirees would have a “major

impact” because the retirees would be treated as current employees resulting in the loss of the

exemption for the retiree-only plan. (Def Mot., Dabertin Dep., 23:16-19).

Regarding the scope of his opinion, Grudzien testified that he only provided an opinion to

Lake County concerning the impact of the Affordable Care Act and that he did not address the Age

Discrimination in Employment Act. He testified that, as an attorney, he concentrated on benefit

plans and did not work in the area of employment discrimination. Grudzien denied any involvement

in the preparation of the PowerPoint presentation. He testified that he advised Lake County not to

rehire any retirees and that he was not asked to provide any guidance on what to do with Plaintiffs

who, at the time, were current part-time employees. He also testified that he did not see the August

21, 2013 termination letter when it was written. He did not know that his opinion letter was attached

to Dabertin’s September 12, 2013 letter. He did not recommend that anyone’s employment be

terminated. Grudzien testified that he did not opine on the issue of what to do with the Plaintiffs and

other similarly situated employees who were already working for Lake County and met the four

conditions of being a part-time employee who was sixty-five or older, had Medicare as his or her

primary insurance, and was participating in the Aetna supplemental insurance plan.

On October 13, 2013, Lake County submitted a form pursuant to the Affordable Care Act

certifying that, as of September 30, 2013, the Aetna insurance plan was truly a “retiree-only” plan

in compliance with the changed regulations prior to the Affordable Care Act’s effective date of

October 1, 2013.

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Dabertin explained that the purpose of the retire/rehire part-time program was to reduce Lake

County’s exposure for its self-insured health insurance plan, which was the second largest expense

to Lake County. Dabertin testified that at the time of the termination of Plaintiffs as of September

30, 2013, non retiree part-time employees did not receive health insurance benefits. If Lake County

rehired the retirees as full-time employees and returned them to primary coverage, it would be

extremely expensive for Lake County. Put differently, Dabertin testified that rehired retirees could

be treated as current employees but then “we would have surely exhausted or further exacerbated

the financial situation of the [self-insurance fund].” (Pls. Mot., Ex. 3, p. 44:9-45:2). Dabertin

explained that the self-insurance fund was over budget and was continuing to lose money.

Dabertin testified that the Lake County elected officials made the decision to terminate

Plaintiffs’ employment; he did not make that decision. Nor did he draft the four bullet points in the

letter that he sent to each employee. He testified that the bullet points came from the PowerPoint

presentation made to the Board and that the presentation was facilitated by Commissioner Mike

Repay. Dabertin testified that he believed that the staff of the County Commissioner’s attorney

assisted in putting together the bullet points or the PowerPoint presentation.

Dabertin testified that his understanding was that all four bullet points had to be met in order

for Lake County to be required to terminate the employee’s employment. He explained that the

provisions of the Affordable Care Act that were going into effect in 2013 prevented Plaintiffs from

working part-time for Lake County and having Medicare as their primary health insurance coverage.

Dabertin testified that Plaintiffs’ termination was not a reduction in force.

Dabertin acknowledged that Grudzien’s opinion letter provided a recommendation that Lake

County not rehire any retirees. When asked whether Lake County relied upon Grudzien’s opinion

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letter when drafting the August 21, 2013 termination letters, Dabertin testified that Grudzien’s

September 7, 2013 opinion letter was a summary of what Grudzien had already told Lake County

Commissioners. Dabertin testified that Grudzien’s letter did not address the issue of age

discrimination because Lake County had viewed the issue as one of eligibility for benefits. Dabertin

acknowledged that the policy only affected individuals who were active part-time employees who

received the Aetna insurance supplement and who were age sixty-five or older and that the policy

did not affect any active part-time employee who had retired and was rehired part-time at ages sixtyone, sixty-two, sixty-three, sixty-four.

Dabertin testified that approximately ten percent of Lake County’s workforce is currently

age sixty-five or older, which is approximately 175 employees.

The Lake County Commissioners, who function as the executive branch of the Lake County

government, have final authority over personnel decisions that fall within the Board’s jurisdiction.

Commissioner Repay testified that, although he reviewed Grudzien’s opinion letter, he did not meet

or discuss the opinion with Grudzien or anyone else. Repay did not know if Grudzien had any

involvement with the PowerPoint presentation or with Dabertin’s letter. Repay authorized Dabertin’s

August 21, 2013 letter, but denied any involvement in the preparation of the bullet points contained

in the letter or in the preparation of the PowerPoint presentation. Repay testified that he believed

County Attorney John Dull prepared the written materials for the PowerPoint presentation and he

assumed that Dull took steps to ensure that the decision to terminate Plaintiffs complied with the

law.

Attorney Dull testified that he did not provide the Lake County Commissioners with any

legal advice as to the decision to terminate Plaintiffs. He testified that he was not involved in the

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preparation of the August 21, 2013 letter written by Dabertin and that he was not involved in the

preparation of the PowerPoint presentation materials. Finally, he testified that he did not review

Lake County’s decision to terminate Plaintiffs’ employment to determine whether the decision

would comply with equal employment opportunity laws.

Larry Blanchard, who works as a financial advisor for the Lake County Commissioners,

testified as to his understanding of the situation:

My understanding is that there was eligibility criteria that didn’t apply to these

individuals, the Aetna plan, and that is when they hired an attorney that was

specialized in ObamaCare in these types of–not the finances, but the eligibility

question, eligibility criteria. I was not really involved that much in that.

(Pls. Mot., Ex. 7, p. 25:24 -26:8).

ANALYSIS

Defendant Lake County moves for summary judgment in its favor on Plaintiffs’ ADEA

claim, arguing that age was not the “but for” cause of Plaintiffs’ termination, as well as on Plaintiffs’

§ 1983 equal protection claim, asserting that there was a rational basis for the decision to terminate

their employment. In their Motion for Partial Summary Judgment, Plaintiffs ask the Court to enter

summary judgment in their favor on the issue of liability, arguing that the decision to terminate their

employment was facially discriminatory. The Court considers each legal claim in turn.

A. Age Discrimination in Employment Act

The ADEA makes it unlawful for an employer to discharge an employee “because of such

individual’s age.” 29 U.S.C. § 623(a)(1); see Ripberger v. Corizon, Inc., 773 F.3d 871, 880 (7th Cir.

2014). ADEA protection extends to individuals who are 40 years of age or older. 29 U.S.C. § 631(a).

On a motion for summary judgment, a plaintiff may demonstrate a genuine issue for trial by

demonstrating that “the evidence would permit a reasonable factfinder to conclude that the plaintiff’s

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. . . [age]. . . caused the discharge or other adverse employment action. Evidence must be considered

as a whole, rather than asking whether any particular piece of evidence proves the case by itself.”

Ortiz v. Werner Enters., Inc., No. 15-2574, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016); see

also Chaib v. Geo Grp., Inc., 819 F.3d 337, 341 (7th Cir. 2016). A plaintiff may also make a case

for going to trial under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). See Ortiz, 2016 WL 4411434, at *4; Fleishman v. Cont’l Cas. Co., 698 F.3d

598, 604 (7th Cir. 2012) (finding that the McDonnell Douglas burden-shifting framework is

applicable in ADEA cases after Gross v. FBL Financial Services, 557 U.S. 167, 176 (2009));

Egonmwan v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 845, 850 (7th Cir. 2010). Plaintiffs assert both

methods in response to Lake County’s Motion for Summary Judgment.3

In this case, Plaintiffs, all of whom were over age sixty-five at the time their employment

ws terminated, are asserting theories of disparate treatment and disparate impact. First, “[i]n a

disparate treatment case, liability depends on whether the protected trait (under the ADEA, age)

actually motivated the employer’s decision.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993);

3

 Plaintiffs also rely on both methods as the basis for their own Motion for Partial Summary Judgment to prove

that they are entitled to summary judgment on the issue of liability (i.e. that they are entitled to a finding that Lake

County discriminated based on age). Plaintiffs argue that they can “establish discrimination directly or indirectly, the

latter through the approach used in McDonnell Douglas Corp. v. Green.” (Pls. Mot. 12). However, those methods are

used by a plaintiff to survive an employer’s motion for summary judgment by showing that a genuine dispute exists for

trial. Plaintiffs’ own case law explains as much. See Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009)

(“A plaintiff proceeding under the direct method survives summary judgment by creating triable issues as to whether

discrimination motivated the adverse employment action.”) (emphasis added). Thus, a plaintiff who offers evidence of

discrimination or satisfies the prima facie case under McDonnell Douglas and shows that the employer’s legitimate nondiscriminatory reason for the adverse employment action was pretextual does not win summary judgment on the issue

of liability but rather preserves the right to go to trial.

Plaintiffs are correct that an ADEA plaintiff may win summary judgment on the issue of liability by

demonstrating that there is no question of material fact and that he is entitled to judgment as a matter of law by proving

each element of the legal claim. See Celotex, 477 U.S. at 322-23; Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389

(7th Cir. 2010); see also Lenzo v. Sch. City of East Chicago, 140 F. Supp. 2d 947, 963 (N.D. Ind. 2001) (granting partial

summary judgment for plaintiff because the defendant school corporation’s early retirement plan was facially

discriminatory). Plaintiffs have not done so in this case.

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see also Kentucky Ret. Sys. v. EEOC, 554 U.S. 135, 147 (2008). An employer either has a “formal,

facially discriminatory policy requiring adverse treatment of employees with that trait” or has a

policy that “may have been motivated by the protected trait on an ad hoc, informal basis.” Id.

Plaintiffs assert that Lake County’s plan was facially discriminatory because one of the four criteria

for identifying an “affected employee” subject to termination is that the employee is age sixty-five

or older.

However, in Gross v. FBL Financial Services, the United States Supreme Court held that a

plaintiff must prove that age was the “but-for” cause of the adverse employment action—that the

employer engaged in disparate treatment “because of” the employee’s age. 557 U.S. at 176 (rejecting

a “mixed motive” theory of liability for claims brought under the ADEA); see also Hazen, 507 U.S.

at 609 (“We now clarify that there is no disparate treatment under the ADEA when the factor

motivating the employer is some feature other than the employee’s age.”). The Supreme Court

explained that “the ordinary meaning of the ADEA’s requirement that an employer took adverse

action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” Gross, 557

U.S. at 176. “Hence, the burden of persuasion necessary to establish employer liability is the same

in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must

prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the

‘but-for’ cause of the challenged employer decision.” Id. at 177-78 (citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)). Evidence that discrimination was a “motivating

factor” is insufficient; at the summary judgment stage, a plaintiff must offer evidence that could

support a jury verdict that age was a “but-for cause” of the employment action. Fleishman, 698 F.3d

at 603-604 (emphasis added) (citing Gross, 557 U.S. at 176); Lindsey v. Walgreen Co., 615 F.3d

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873, 876 (7th Cir. 2010) (recognizing that it is not enough to establish that age was a motivating

factor because Gross clarified that a plaintiff must show that age was the determinative factor (citing

Gross, 557 U.S. at 176)).

“While it is unlawful to discriminate on the basis of age, it is not necessarily unlawful to

discriminate on the basis of other characteristics that correlate with age.” Walker v. Monsanto Co.

Pension Plan, 636 F. Supp. 2d 774 (S.D. Ill. 2009) (emphasis added) (citing Cooper v. IBM Pers.

Pension Plan, 457 F.3d 636, 642 (7th Cir. 2006)); see also Cooper, 457 F.3d at 642 (citing Hazen

Paper, 507 U.S. at 611-12; Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997);

Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997)), cert. denied, 549 U.S. 1175

(2007). 

In its Motion for Summary Judgment, Lake County recognizes that the decision to terminate

Plaintiffs’ employment was facially discriminatory because being over the age of sixty-five was one

of the four criteria that defined an “affected employee” subject to termination, with the criteria listed

in both the PowerPoint presentation and the August 21, 2013 letter from Dabertin. However, Lake

County argues that the undisputed evidence demonstrates that Lake County made the decision based

on the financial impact of moving Plaintiffs to the self-insurance program and the potential loss of

the Aetna supplemental insurance plan for all retirees in light of changes forced by the Affordable

Care Act if those affected employees remained employed part-time. Lake County asserts that the

decision was not “because of” age; rather, the decision was made based on the “affected employees”

meeting the other three criteria, which are that each employee (1) had retired from and then was

rehired part-time by Lake County; (2) has Medicare as Primary Medical Coverage; and (3) is

eligible for or currently has Aetna as the Lake County Government Retiree Health Care Plan. 

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The evidence demonstrates that being over age sixty-five was not the “but-for” cause of the

decision to terminate Plaintiffs’ employment, and Plaintiffs have not raised a genuine dispute as to

the facts. First, each of the thirty Plaintiffs was not only over sixty-five years old but also met all

three other criteria. Both the August 21, 2013 and September 12, 2013 letters explain that the

Affordable Care Act and the related impact on the retiree-only health care plan motivated Lake

County to terminate Plaintiffs’ employment. As testified to by David Baker, the third-party

administrator for Lake County’s self-insurance, if the rehired retirees remained employed part-time

and continued to receive Medicare and the Aetna supplemental insurance, Aetna would no longer

be considered a Medicare supplement and the Plan would lose its exemption as a retiree-only plan,

jeopardizing the plan for all retirees.

Second, approximately 175 current employees, or ten percent of Lake County’s workforce,

are over the age of sixty-five. These 175 employees were not terminated along with Plaintiffs

because, despite being over the age of sixty-five, they did not meet all three other criteria. Plaintiffs

do not acknowledge this fact or respond to Lake County’s assertion that this fact demonstrates that

age was not the but-for cause of Plaintiffs’ termination. That Plaintiffs were treated less favorably

than other individuals of the same age is not evidence of disparate treatment based on age. Any

inference of age discrimination is undercut by the fact that the 175 other employees over the age of

sixty-five retained their jobs. See Ripberger, 773 F.3d at 880-81.

Plaintiffs’ own testimony further supports Lake County’s assertion that Plaintiffs were

terminated for health insurance and financial concerns rather than age-related discrimination. All

Plaintiffs admitted in their depositions that they met the four criteria in the letter. And, no Plaintiff

testified that he or she was ever the subject of age-based comments, harassment, or animus. See

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Kentucky, 554 U.S. at 146 (“Kentucky’s system does not rely on any of the sorts of stereotypical

assumptions that the ADEA sought to eradicate.”); Hazen Paper, 507 U.S. at 612 (finding that the

decision to dismiss the employee, which was based on pension status (which was related to years

of service and not age), was not based on a “prohibited stereotype” of older workers and did not

produce any “attendant stigma” and that the decision was not “the result of an inaccurate and

denigrating generalization about age”). Several Plaintiffs testified that their supervisors were upset

when they learned of Lake County’s decision and did not want the employee terminated.

Finally, it is undisputed that Aetna and Grudzien concluded that the changes to Medicare’s

Secondary Payer Rules prevented Lake County from rehiring part-time retirees who were receiving

benefits under Lake County’s retiree health program. The evidence shows that Lake County relied

on this information to make the termination decisions in this case. To keep Plaintiffs employed with

benefits, Lake County would have had to hire them as full-time employees and provide them with

the corresponding benefits or provide Plaintiffs with full-time active employee health insurance even

though they were only working part-time, options Lake County could not financially afford.

In response, Plaintiffs attempt to raise a genuine dispute of fact as to whether Lake County

terminated Plaintiffs’ employment on that basis rather than because of age. None of the facts

asserted by Plaintiffs bring into question the reason for Lake County’s decision. First, Plaintiffs note

that Lake County’s decision was not due to a reduction in force. This is true; Plaintiffs were

terminated because they met all four factors. Although a reduction in force is a legitimate

nondiscriminatory reason for termination, see Fuqua v. Donahoe, No. 12 C 6977, 2015 WL

5775602, at *5 (N.D. Ill. Sept. 30, 2015) (citing cases), aff’d, Fuqua v. Brennan, 645 F. App’x 519

(7th Cir. 2016), reh’g denied (June 28, 2016), it is not the only nondiscriminatory reason.

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Second, Plaintiffs assert that it is irrelevant that, going forward, Aetna required the exclusion

of rehired retirees because Lake County had an obligation to treat Plaintiffs, as current active

employees, in a manner that did not discriminate based on age. The fact is not irrelevant because

Lake County had to certify that by September 30, 2013, it no longer had any active employees

insured under the retiree-only plan. Moreover, as discussed above, the evidence of record shows that

Lake County did not discriminate based on age simply because portions of the decision were based

on factors that correlate with age. See Cooper, 457 F.3d at 642.

Next, Plaintiffs assert that Lake County gave varying and inconsistent reasons for

terminating their employment. But the evidence cited by Plaintiffs does not show any change or

inconsistency in Lake County’s reason. In support, Plaintiffs note that the only legal opinion

obtained by Lake County was that of Attorney Grudzien and that Grudzien only recommended that

Lake County not rehire retirees in the future and did not offer an opinion regarding Plaintiffs who

were retirees then-currently working for Lake County. Indeed, Grudzien testified that he did not

opine as to Plaintiffs’ employment and did not recommend that Plaintiffs be terminated. However,

Dabertin testified that the PowerPoint presentation and the August 21, 2013 letter, both of which set

out the four criteria, were authored after Grudzien had spoken with the Commissioners about his

opinion regarding rehiring retirees. It is undisputed that Grudzien “advised [Lake County] not to

rehire any retirees.” Aetna told Lake County that no active employees could be on the plan.

Plaintiffs were rehired retirees in part-time positions receiving Medicare and the Aetna supplemental

insurance, just like those individuals addressed in Grudzien’s opinion and who were the subject of

Aetna’s concern. The Commissioners’ decision to terminate Plaintiffs’ employment is consistent

with Grudzien’s opinion.

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Moreover, the full text of Grudzien’s September 7, 2013 letter sets out the basis for giving

the opinion to be Lake County’s financial concerns regarding the status of the Aetna coverage for

rehired retirees. Also, the recitation of the four factors in both Dabertin’s letter and the PowerPoint

presentation as the basis for the decision further support the consistency of Lake County’s reasoning

throughout the process. And, Dabertin, Blanchard, Repay, and Scheub all testified that the reasons

for the terminations were stated in the August 21, 2013 letter.

Finally, Plaintiffs assert that the authorship of the PowerPoint presentation and of the content

of Dabertin’s letter are in question, noting that Dabertin and Repay both suggested in their

depositions that the materials were prepared by Attorney Dull but that Attorney Dull later testified

that he was not involved. The question of who authored those materials is irrelevant given that all

of the documents and testimony are consistent as to Lake County’s intent and all came after

Grudzien gave advice to the Commissioners. Plaintiffs offer no explanation as to how the question

of authorship suggests inconsistency. 

Plaintiffs have not identified any genuine dispute of fact as to Lake County’s reason for

terminating their employment or that they were identified as “affected employees” because they met

all four criteria. Thus, being age sixty-five or older was a necessary but insufficient factor to become

a member of the affected group. Rather, the sufficient condition, the “but-for” cause, was meeting

all three other criteria, namely being a part-time employee, being on Medicare for primary insurance

coverage, and being a participant in the Aetna supplemental plan.

However, Plaintiffs also argue that their eligibility at age sixty-five for Medicare and for the

Aetna supplemental plan is a “proxy for age.” In Hazen Paper, the United States Supreme Court

recognized that pension status could be a “proxy for age” in addressing the question of whether “an

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employer’s interference with the vesting of pension benefits violate[d] the ADEA,” even though the

court found that pension status was not a proxy for age in that case. 507 U.S. at 608. In Hazen

Paper, the employer fired an employee just a few weeks before the employee reached the ten-year

service mark required to vest in the employer’s pension plan, but the employer offered to retain the

employee as a consultant—a position not entitled to pension benefits. Id. at 607. The employee sued

under the ADEA, arguing that his pension status was empirically correlated with age such that

termination based upon his pension status constituted age discrimination. Id. at 607-08. The

Supreme Court disagreed. Id. at 609. The court reasoned that “an employee’s age is analytically

distinct from his years of service,” pointing out that “[a]n employee who is younger than 40, and

therefore outside the class of older workers as defined by the ADEA, may have worked for a

particular employer his entire career, while an older worker may have been newly hired.” Id. at 611

(internal citation omitted). Because age and years of service are analytically distinct, the court noted,

“an employer can take account of one while ignoring the other[;] . . . thus[,] it is incorrect to say that

a decision based on years of service is necessarily ‘age based.’” Id.

However, the Supreme Court did not preclude the possibility that factors such as pension

status and retirement eligibility might be considered a proxy for age in some cases. In fact, the court

noted the “special case” when “[p]ension status may be a proxy for age” if “the employer . . .

suppose[s] a correlation between the two factors and act[s] accordingly.” Id. at 613. The court

specifically noted that the pension system at issue in that case was based solely on years of service,

noting that it would be a different case “where an employee is about to vest in pension benefits as

a result of his age, rather than years of service.” Id.

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In Kentucky Retirement Systems, the Kentucky “hazardous position” retirement plan imputed

unearned years of service credit to workers who became disabled before they became eligible for

retirement but did not assign years of credit to otherwise similarly situated workers who became

disabled after they were already eligible for retirement. 554 U.S. at 138. The Supreme Court

considered the case to be a variation on the “special case” from Hazen Paper and asked the question

“whether Kentucky’s system consequently discriminates against the [post-retirement disabled]

workers ‘because of . . . age . . . .” Id. at 138, 143. The court found that it did not. Id. at 138. The

court concluded that the decision to assign extra years of service to those who became disabled

before reaching retirement eligibility was based on pension status, not age, even though the result

was that a worker under the age of fifty-five received the benefit of imputed years when a worker

over the age of fifty-five did not. Id. at 147-48.

In making its ruling, the Supreme Court identified several factors to find that the differences

in treatment were not “actually motivated” by age. Id. at 143. First, age is analytically distinct from

pension status. Id. Second, the background circumstances consisted of a set of complex systemwide

rules that involved pensions and not wages, and all hazardous position workers were subject to the

same retirement system at the time they were hired. Id. at 143-44. Third, the disability retirement

benefits tracked Kentucky’s normal retirement rules such that the purpose of the plan was to treat

a disabled worker as though he had become disabled after, rather than before, he became eligible

for retirement benefits. Id. at 144-45. Fourth, the system sometimes worked to the advantage of an

older worker. Id. at 146. Fifth, Kentucky’s system “does not rely on any of the sorts of stereotypical

assumptions that the ADEA sought to eradicate. It does not rest on any stereotype about the work

capacity of ‘older’ workers relative to ‘younger’ workers.” Id. at 146 (citing General Dynamics

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Land Sys., Inc. v. Cline, 540 U.S. 581, 590 (2004)). Sixth, the difficulty of the remedy if the plan

were to be found illegal suggests that the plan’s legitimate objective and not age actually motivated

the plan. Id. at 147. 

The question before this Court is whether the combination of being over the age of sixty-five

along with the three other criteria—that is being (1) a part-time employee, (2) on Medicare for

primary insurance coverage, and (3) a participant in the Aetna supplemental plan—is a “proxy for

age.” The answer is no. Although the three criteria correlate with age, the evidence is that Lake

County did not act because it supposed a correlation between these factors and age. Under Hazen

Paper, the factor motivating Lake County’s actions was not only Medicare eligibility or only Aetna

eligibility; rather it was the unique combination of the eligibility for both along with working parttime as a rehired retiree and the fact that having these rehired retirees in the plan would cause Lake

County to lose its exemption for the retiree-only plan. In fact, being over sixty-five years old and

receiving Medicare alone would not be sufficient to be an “affected employee.” And, being over

sixty-five years old and receiving Medicare and receiving the Aetna retiree benefits would not be

sufficient to be an “affected employee.” To be an “affected employee,” the individual has to meet

all of those criteria and be working part-time. A retired and rehired part-time worker who has not

reached sixty-five would have been treated differently because the employee would not yet have

qualified for Medicare and the Aetna supplement, which require attaining age sixty-five, and the

person would not have been terminated. But that difference of a few years does not make that

individual substantially younger, as is required to show age discrimination. See O’Connor v. Consol.

Coin Caterers Corp., 517 U.S. 308, 313 (1996); Duncan v. Fleetwood Motor Homes of Ind., Inc.,

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518 F.3d 486, 493 (7th Cir. 2008); Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 643-44 (7th Cir.

2013). And, importantly, Plaintiffs have not identified any such individuals.

Lake County did not use insurance eligibility as a proxy for age because all other employees

age sixty-five and older remained employed after Plaintiffs were terminated; Lake County only

terminated those employees who met all four factors. And, as discussed above, there is no evidence

that Lake County acted based upon age-based stereotypes. Finally, like in Kentucky, the complexity

of finding a solution to the retiree health insurance situation that arose with the Affordable Care Act

suggests that Lake County was not acting based on age.

Plaintiffs cite two cases that found Medicare eligibility to be a proxy for age—Erie County

Retirees Association v. County of Erie, 220 F.3d 193, 211 (3d Cir. 2000), and Tramp v. Associated

Underwriters, Inc., 768 F.3d 793 (8th Cir. 2014). Both are distinguishable.

First, in Erie County, 220 F.3d 193, 211 (3d Cir. 2000), the Third Circuit Court of Appeals

ruled that the practice of providing different benefits to older and younger retirees based on their

eligibility for Medicare constitutes age discrimination because Medicare eligibility is an “explicitly”

age-related factor, and is thus parallel to the “special case” mentioned by the Court in Hazen Paper

in which an adverse action is taken against a person because of a particular event, and that event in

turn occurs because the person has attained a certain age. Erie County, 220 F.3d at 211-212. The

Third Circuit Court of Appeals held that because Medicare eligibility follows upon attaining age

sixty-five it “is a direct proxy for age.” Id. 

In our case, there is no comparison with younger part-time employees because younger parttime employees did not qualify for health insurance. And, there is no comparison with retirees

receiving Medicare and Aetna supplemental insurance because they were not working. Only the

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employees who met all four criteria were considered “affected employees.” And, in Erie, the

employees were being treated differently with respect to the health care benefits themselves. In our

case, Plaintiffs are not alleging that the health care options available to them are discriminatory but

rather that the basis for their termination is discriminatory. It is tempting to follow the logic that

Medicare and Aetna eligibility is necessarily tied to age as it is impossible to account for the former

while ignoring the latter. But, the potential proxies (those just eligible for Medicare and Aetna) are

much larger than Plaintiffs who meet all four criteria. See Bowers v Nat’l Collegiate Athletic Ass’n,

563 F. Supp. 2d 508, 519 (D.N.J. 2009) (“The link between special education and disability status

is much more direct than in proxy cases where the classification in question was found merely to

correlate with the protected category. While the potential proxies in Community Services and Hazen

Paper encompassed categories of persons beyond the handicapped and the elderly, respectively, the

proxy category here—the special education population–—is no more broad that the suspect

classification in question.”)

Plaintiffs also cite the following passage from Erie County to suggest that evidence of a

malevolent motive should not be considered: 

The fact that there is no reason to believe that the County possessed a malevolent

motive or acted on the basis of hostile age-based stereotypes is irrelevant. The

Supreme Court has indicated that a policy explicitly based on a prohibited factor—

such as sex or age—is illegal regardless of the underlying motive:

[T]he absence of a malevolent motive does not convert a facially

discriminatory policy into a neutral policy with a discriminatory

effect. Whether an employment practice involves disparate treatment

through explicit facial discrimination does not depend on why the

employer discriminates but rather on the explicit terms of the

discrimination . . . . The beneficence of an employer’s purpose does

not undermine the conclusion that an explicit gender-based policy is

sex discrimination . . . .

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Erie County, 220 F.3d at 212-213 (quoting Int’l Union v. Johnson Controls, Inc., 499 U.S. 187,

199-200 (1991); citing City of Los Angeles Dep’t of Water and Power v. Manhart, 435 U.S. 702,

704-18 (1978) (holding that employer’s policy requiring female employees to make larger pension

fund contributions than male employees violated Title VII even though the policy merely sought to

take into account the well-established fact of female longevity)). However, in both Johnson Controls

and Manhart, the policies were facially discriminatory based on the plaintiffs’ female gender, a

category that applies to all women. In our case, the category of individuals over age sixty-five is

much broader than the small group of Plaintiffs who meet all four factors. 

Also, both Hazen Paper and Kentucky, Supreme Court cases, considered motive and whether

the employer acted on age stereotypes in the context of analyzing whether a pension was a “proxy

for age.” Like in Hazen Paper and Kentucky, this is not a case in which there is any evidence that

the employees over age sixty-five were being “deprived of employment on the basis of inaccurate

and stigmatizing stereotypes.” Hazen Paper, 507 U.S. at 610; Kentucky, 554 U.S. at 146. The only

evidence is that Lake County’s motivation was concern for the viability of the retiree-only

healthcare plan in light of the changes brought about by the Affordable Care Act. Other cases

continue to look at prohibited motivation based on stereotyping. See, e.g., Hilde v. City of Eveleth,

777 F.3d 998, 1006 (D. Minn. 2015) (finding, in a case in which the plaintiff was denied

consideration for promotion to chief of police because he was retirement eligible, that “[t]o assume

that Hilde was uncommitted to a position because his age made him retirement-eligible is agestereotyping that the ADEA prohibits” (citing Hazen Paper, 507 U.S. at 610-11)).

Second, in Tramp, the employer underwent a reduction in force because it was faced with

economic difficulties. 768 F.3d at 796. Subsequently, the employer experienced a significant

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increase in its group health plan premiums, and the company sought new quotes for its health plan.

Id. Learning that people over the age of sixty-five “usually don’t get quoted” for the insurance

policy because they are Medicare eligible, the employer asked the plaintiff to apply for Medicare

to save the company money. Id. at 796-97. The plaintiff refused, and she was ultimately terminated

in a subsequent reduction in force. Id. at 797. The employer stated that the plaintiff was fired for

poor job performance. The Eighth Circuit Court of Appeals found that the employer’s perception

of insurance premiums was not divorced from age in the same sense as pension benefits are divorced

from age and held that it was possible that a reasonable jury could conclude from the evidence that

the employer believed that age and insurance premiums were not analytically distinct and that the

decision was made based on age and not job performance. Id. at 801-03 (citing EEOC v. City of

Independence, Mo., 471 F.3d 891, 896 (8th Cir. 2006) (“The key is what the employer supposes

about age . . . .”)). Tramp is distinguishable for the same reasons as Erie, namely that age was not

a switch that when flipped placed the Plaintiffs into the “affected employee” category. Rather, it was

the combination of all four factors. 

Considering the evidence as a whole, Plaintiffs have not offered evidence from which a

reasonable juror could find that Lake County acted because of their age. It is undisputed that Lake

County believed that, if Plaintiffs had remained as part-time employees and as participants in the

Aetna supplemental insurance plan given the plan’s terms and the changes to the Medicare

Secondary Payer rules, Lake County would have lost its exemption for the Aenta supplemental

insurance plan as a retiree-only plan. Lake County believed, based on Aetna’s representations and

Grudzien’s opinion, that the Aetna plan could not have active employees as participants as a result

of the Affordable Care Act. Otherwise, the Aetna plan would have become primary to the Medicare

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coverage and would no longer be a supplemental plan. Lake County believed that if Plaintiffs

remained in the plan and in their positions, the plan would no longer function as it should and would

result in a loss of coverage to all other Lake County retirees in the plan. Plaintiffs offer no evidence

to dispute these beliefs.

Plaintiffs also argue that they should survive Defendants’ Motion for Summary Judgment

under the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). Under this test, a plaintiff has the burden of establishing a prima facie case of

discrimination by showing that (1) he is a member of a protected class; (2) he met the employer’s

legitimate business expectations; (3) he suffered an adverse employment action; and (4) similarly

situated employees outside of the protected class were treated more favorably. Widmar v. Sun Chem.

Corp., 772 F.3d 457, 463 (7th Cir. 2014) (citing Tank v. T-Mobile USA, Inc., 78 F.3d 800, 809 (7th

Cir. 2014). If a plaintiff succeeds in establishing a prima face case, then the burden shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the termination. Id. The plaintiff

must then offer evidence that the employer’s stated reason is a pretext for discrimination. Id. (citing

Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 511-12 (7th Cir. 2012)).

Although Plaintiffs correctly recite the elements of the prima facie case as well as the burden

shifting framework, Plaintiffs make no attempt to show factually that they meet the prima facie case.

Most importantly, in neither their response to Lake County’s Motion for Summary Judgment or their

own Motion for Partial Summary Judgment do Plaintiffs identify any similarly situated individuals

who were treated differently. In contrast, Lake County identifies two potential comparator classes

based on Plaintiffs’ framing of the issue in this case; Plaintiffs do not respond to either proposed

class of comparators nor do they offer their own in reply.

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In proposing the two comparator classes, Lake County notes that Plaintiffs’ complaint is not

that younger workers under the age of sixty-five (who are ineligible for Medicare) are treated better

than Plaintiffs in terms of health insurance benefits—the issue in Erie. Rather, Plaintiffs complain

that they lost their jobs because they could not remain as part-time employees and at the same time

maintain participation in the Aetna supplemental health insurance plan along with Medicare. Thus,

Lake County suggests that Plaintiffs’ age discrimination theory is that they are being treated worse

than either (1) current part-time Lake County employees age sixty-five or over and/or (2) former

Lake County employees over the age of sixty-five who have retired and no longer work for the

County. Neither comparator class is similarly situated. Any current part-time Lake County

employees age sixty-five or over who work part-time do not have the Aetna supplement. Thus, they

are materially different. Former employees, who are retired and are eligible for the supplement,

receive the supplement and, therefore, are treated the same as Plaintiffs; both groups are no longer

active Lake County employees and both receive the supplement. Regardless, any difference in

treatment between Plaintiffs and these groups cannot be “because of” age since both groups are

made up entirely of older workers.

In their responses to Interrogatory No. 16 regarding identifying any similarly situated

workers, each Plaintiff writes: “I am only aware that I was treated differently than other part-time

workers who were under the age of sixty-five, as I was informed by the County, in writing, that my

employment was terminated because I was over the age of sixty-five.” See, e.g. (Pls. Br., Ex. 18, p.

6). But simply being part-time does not make a younger employee similarly situated to Plaintiffs.

The younger part-time employees would also have to be eligible for Medicare and would have to

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have been receiving Aetna supplemental insurance. Plaintiffs identify no such individuals. Plaintiffs

have not made out a prima facie case.

Even if Plaintiffs could establish a prima facie case of age discrimination, Plaintiffs have not

shown that Lake County’s reason for firing Plaintiffs—that Plaintiffs’ part-time employment as

rehired retirees receiving Medicare and Aetna supplemental health insurance jeopardized the retireeonly plan—was pretextual or unworthy of credence. “Pretext means a dishonest explanation, a lie

rather than an oddity or an error. Pretext is more than a mistake on the part of the employer; it is a

phony excuse. Showing pretext requires proof that the defendant’s explanation is unworthy of

credence.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008) (citations, alterations,

and quotation marks omitted); see also Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000)

(stating that even if an employer’s reason for terminating an employee is “mistaken, ill considered

or foolish,” pretext has not been shown as long as the employer “honestly believed those reasons”).

“The only concern in reviewing an employer’s reasons for [an employment action] is the honesty

of the employer’s belief.” Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d

309, 323 (7th Cir. 2003). 

Plaintiffs offer no evidence that Lake County did not honestly believe that Plaintiffs’

employment had to be terminated by September 30, 2013, in order to avoid losing the exemption

for the retiree-only health care plan. Whether Lake County was correct and whether Lake County

should have relied on Grudzien’s opinion to make the decision to terminate Plaintiffs does not go

to the honesty of Lake County’s belief but rather to its correctness. See Holshouser v. Abbott Labs.,

31 F. Supp. 3d 964, 971-72 (N.D. Ill. 2014) (“It is well-settled in this Circuit and others that, where

an employer honestly believes the reasons provided for a[n] [adverse action] . . . , a plaintiff cannot

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establish pretext, even if those reasons were wrongheaded in some manner.”). Plaintiff cannot

survive summary judgment on the McDonnell Douglas burden-shifting framework.

“When all is said and done, the fundamental question at the summary judgment stage is

simply whether a reasonable jury could find prohibited discrimination.” Bass v. Joliet Pub. Sch. Dist.

No. 86, 746 F.3d 835, 840 (7th Cir. 2014). Because Plaintiffs have failed to point to any evidence

from which a jury could conclude that age was the “but-for” cause of Plaintiffs’ termination,

Plaintiffs cannot survive summary judgment on their age discrimination claim based on a theory of

disparate treatment.

Plaintiffs also assert their claim of age discrimination under a disparate impact theory, which

is available under the ADEA. See Smith v. City of Jackson, Miss., 544 U.S. 228, 240 (2005). A claim

of “disparate impact” allows for recovery for “employment practices that are facially neutral in their

treatment of different groups but that in fact fall more harshly on one group than another and cannot

be justified by business necessity.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.

15 (1977) (Title VII); see also Zmigrocki v. Cook Cty., No. 12 C 9697 2015 WL 500621, at *1-2

(N.D. Ill. Feb. 4, 2015) (ADEA). To establish a prima facie case of disparate impact, “the plaintiff

is responsible for isolating and identifying the specific employment practices that are allegedly

responsible for any observed statistical disparities.” Puffer v. Allstate Ins. Co., 675 F.3d 709, 717

(7th Cir. 2012) (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994-95 (1988)). In

addition, the plaintiff must offer “statistical evidence of a kind and degree sufficient to show that

the practice in question has” disproportionally affected older workers because of their age. Id.

(quoting Watson, 487 U.S. at 994-95). Once the plaintiff offers sufficient statistical evidence, then

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the burden shifts “to the defendant-employer to demonstrate that the employment practice is job

related for the position in question and consistent with business necessity.” Id.

Although Plaintiffs accurately cite the law for a disparate impact claim, Plaintiffs’ entire

analysis is the statement: “[a] reasonable jury could conclude that the considerations made by the

defendant were based on the plaintiff’s age and that there[sic] the defendant’s actions are not based

on a reasonable factor other than age.” (Pls. Resp. 23); see also (Pls. SJ Br. 20-21). This general

statement is insufficient to meet Plaintiffs’ burden of identifying the specific employment practices

at issue. In the interests of justice, the Court recognizes that the employment practice that led to

Plaintiffs’ termination, discussed throughout the briefing, is the selection of “affected employees”

meeting the four criteria. But, Plaintiffs make no attempt, either in response to Lake County’s

Motion for Summary Judgment, or in support of their own, to show how the use of the four factors

to terminate Plaintiffs’ employment fell more harshly on them than another group. As discussed

previously, Plaintiffs do not identify any other group. Nor do Plaintiffs offer any statistical evidence

to establish a prima facie case. Thus, Plaintiffs have failed to meet their burden to establish a prima

facie case of disparate impact, and summary judgment in favor of Defendant Lake County on

Plaintiffs’ disparate impact theory is appropriate.

Finally, even if Plaintiffs had successfully made out a prima facie case of disparate impact,

Lake County has established its affirmative defense of a reasonable factor other than age under 29

U.S.C. § 623(f)(1). See Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 87 (2008) (holding

that, when an employer faces a disparate impact claim, the employer bears the burden of producing

evidence to raise the defense and to persuade the fact finder of the defense’s merit). Lake County

has shown that the reasonable factor other than age was Aetna’s position, confirmed by Grudzien,

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that having rehired retirees working part-time on the Aetna plan would violate the Affordable Care

Act. As discussed above, Plaintiffs have not identified any genuine dispute as to the honesty of that

belief. Nor do Plaintiffs challenge the reasonableness of that basis for terminating Plaintiffs’

employment. Thus, for this additional reason, Plaintiffs cannot survive summary judgment on their

disparate impact theory.

Because Plaintiffs’ age discrimination claim cannot survive summary judgment under either

theory, the Court grants Defendant Lake County’s Motion for Summary Judgment on Plaintiffs’

ADEA claim and denies Plaintiffs’ Motion for Partial Summary Judgment on the same claim.

B. 42 U.S.C. § 1983—Equal Protection Clause

In their Complaint, Plaintiffs allege that Lake County’s decision to terminate their

employment violates the Equal Protection Claus e of the Fourteenth Amendment to the United States

Constitution, bringing the claim under 42 U.S.C. § 1983. See Levin v. Madigan, 692 F.3d 607, 617

(7th Cir. 2012) (holding that the ADEA does not preclude a § 1983 equal protection claim based on

age).

Because age is not a suspect classification under the Equal Protection Clause, the claim is

reviewed under the rational basis standard. Gregory v. Ashcroft, 501 U.S. 452 (1991); Smith v. City

of Chicago, 457 F.3d 643, 650-51 (7th Cir. 2006); Discovery House, Inc. v. Consol. City of

Indianapolis, 319 F.3d 277, 282 (7th Cir. 2003). To prevail under this standard of review, a plaintiff

must prove that the defendant: “(1) intentionally treated him differently from others similarly

situated; (2) intentionally treated him differently because of his membership in the class to which

he belonged; and (3) the difference in treatment was not rationally related to a legitimate state

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interest.” Smith, 457 F.3d at 650-51 (citing Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51

(7th Cir. 2002)).

In this case, Lake County has demonstrated that the decision to terminate Plaintiffs’

employment was rationally related to a legitimate state interest. Based on Aetna’s position and

Grudzien’s opinion, keeping rehired retirees on the Aetna supplemental insurance plan would have

threatened the viability of the supplemental insurance plan for all other retirees and would have been

prohibitively expensive. See Jackson v. Lain, No. 2:13-CV-198, 2015 WL 4426141, at *6 (N.D. Ind.

July 20, 2015) (finding that cost-conscious use of public funds is rationally related to a legitimate

state interest in denying the overtime compensation requests of a county employee and ultimately

terminating his employment). Therefore, the Court grants summary judgment in favor of Defendant

Lake County on Plaintiffs’ § 1983 Fourth Amendment equal protection claim and denies Plaintiffs’

Motion for Partial Summary Judgment on the same claim.

CONCLUSION

Based on the foregoing, the Court hereby (1) GRANTS Defendant’s Motion for Summary

Judgment [DE 40]; (2) DENIES Plaintiffs’ Motion for Partial Summary Judgment [DE 42]; (3)

DENIES Defendant’s Motion to Submit Omitted Exhibit [DE 45]; (4) GRANTS Plaintiffs’ Motion

to Strike [DE 49]; and DENIES Defendant’s Request for Oral Argument [DE 53].

The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Defendant

Lake County, Indiana, and against Plaintiffs.

So ORDERED this 14th day of September, 2016.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT 

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