Seventh Circuit Confirms Muldrow’s “Some-Harm” Standard Applies Broadly to ADEA Claims

Introduction

Mary Ann Arnold spent twenty-six years working in corporate communications at United Airlines (“United”). After filing internal grievances for age discrimination, disability discrimination, and sexual harassment, Arnold was removed from a high-profile “Core4” project, placed on a Performance Improvement Plan (PIP), and ultimately resigned in 2020. She sued under the Age Discrimination in Employment Act (ADEA) and the Illinois Human Rights Act (IHRA), alleging age discrimination, retaliation, hostile work environment, and constructive discharge. The Northern District of Illinois granted summary judgment for United on all but the constructive discharge claim (dismissed without prejudice for failure to exhaust). On appeal, the Seventh Circuit affirmed.

The decision is doctrinally important because it extends the U.S. Supreme Court’s recent holding in Muldrow v. City of St. Louis—which lowered the threshold for proving an “adverse employment action” under Title VII—to ADEA claims and to employment actions other than job transfers. At the same time, the court found that Arnold’s evidence still did not clear even the relaxed “some harm” standard, thereby illustrating the evidentiary demands that remain after Muldrow.

Summary of the Judgment

• The Seventh Circuit (Judges Ripple, Hamilton, Pryor) reviewed the district court’s grant of summary judgment de novo and affirmed in full.
• Age Discrimination: The court adopted Muldrow’s “some harm to a term or condition of employment” standard for ADEA claims but held Arnold could not show such harm: her pay, benefits, hours, and core duties remained unchanged despite the reorganization and the PIP.
• Retaliation: Arnold’s negative review and PIP were not materially adverse for retaliation purposes; her sexual-harassment complaint was not properly raised below and, in any case, did not relate to protected age-based activity.
• Hostile Work Environment: The record lacked severity or pervasiveness tied to age; temporary seating near an accused harasser and routine performance management were insufficient.
• Constructive Discharge: Dismissal without prejudice for failure to exhaust administrative remedies affirmed.

Analysis

A. Precedents Cited and Their Influence

• Muldrow v. City of St. Louis, 601 U.S. 346 (2024) – Eliminated the “materially adverse” or “significant harm” gloss for Title VII transfers, requiring only “some harm” to a term or condition. The Seventh Circuit explicitly applies this reading to the ADEA.
• Thomas v. JBS Green Bay, 120 F.4th 1335 (7th Cir. 2024) – First Seventh Circuit application of Muldrow outside transfers; court relies on its reasoning.
• Ortiz v. Werner Enterprises, 834 F.3d 760 (7th Cir. 2016) – Mandates a holistic look at all evidence of discrimination.
• McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) – Burden-shifting framework still available; Arnold pursued this route.
• Other Seventh Circuit authorities on comparator analysis (Brooks v. Avancez, Hartley v. Wisconsin Bell) and on PIPs/negative reviews not constituting adverse actions (Langenbach v. Wal-Mart).

B. Court’s Legal Reasoning

1. Applicability of Muldrow.
   • United argued that Muldrow was limited to transfers; the panel rejected this, noting Thomas and holding the Supreme Court’s textual rationale (“treat worse” need not be “significantly worse”) applies equally to the ADEA’s identical operative language.
   • Standard now: plaintiff must show “some” (not “significant”) harm touching a term or condition, yet it must still be more than trivial or wholly subjective.
2. No Adverse Action Found.
   • Reorganization changed Arnold’s title and assignments but not pay, benefits, or general job function.
   • PIP and increased workload fell within normal performance management; no evidence objectives were impossible.
   • Under Muldrow, harm must still be to the terms or conditions of employment; court cites First, Sixth Circuits limiting “counselings” and reprimands.
3. Failure of Prima Facie Case.
   • Comparator evidence insufficient: ages unknown or gap (six years) presumptively insubstantial (Hartley). Different teams post-reorg not “similarly situated.”
   • Performance deficiencies unrebutted; therefore no pretext.
4. Retaliation & Hostile Environment.
   • Sexual-harassment-based retaliation waived on appeal and unrelated to age.
   • PIP/negative review not materially adverse under retaliation standards.
   • Hostile-environment claim failed for lack of severity/pervasiveness; employer promptly moved seat; standard workplace scrutiny is not harassment.

C. Impact on Future Litigation and Employment Practices

• Broader Reach of Muldrow in the Seventh Circuit. Plaintiffs may cite the case for any federal anti-discrimination statute sharing Title VII’s “terms, conditions, or privileges of employment” language (ADEA, ADA, §1981). Summary-judgment briefing must now address both the relaxed standard and still delineate why the harm is (or is not) to a “term or condition.”
• Comparator Analysis Reinforced. The decision reiterates the importance of detailed comparator evidence: specific ages, identical supervisors, and job duties are crucial.
• Performance Improvement Plans. Employers retain wide latitude to deploy PIPs. Plaintiffs must marshal evidence that a PIP imposes impossible tasks, materially reduces benefits, or is itself selective punishment in order to convert it into an adverse action.
• Retaliation Claims. The court distinguishes between activity protected under one statute versus another; counsel should plead retaliation theories aligned with the discrimination basis asserted.
• Administrative Exhaustion. Constructive-discharge allegations must be included in the EEOC/IDHR charge; omission remains fatal.

Complex Concepts Simplified

• Adverse Employment Action: Any employer decision that actually worsens the employee’s work terms—pay, benefits, schedule, duties, promotional path. Post-Muldrow the harm need not be “significant,” but it must be real and job-related.
• McDonnell Douglas Framework: A three-step proof model: (1) employee makes a prima facie case of discrimination; (2) employer gives a neutral reason; (3) employee shows that reason is a lie (pretext).
• Performance Improvement Plan (PIP): A formal set of goals and deadlines designed to correct perceived deficiencies. Not inherently punitive; becomes adverse only if it carries concrete negative consequences or is blatantly unachievable.
• Hostile Work Environment: Harassment so severe or pervasive that it alters employment conditions. Occasional criticisms, increased workload, or ordinary stress usually don’t qualify.
• Constructive Discharge: When working conditions are deliberately made intolerable, forcing a reasonable person to resign. Must be pled with the EEOC/IDHR before suing.

Conclusion

Arnold v. United Airlines is not a victory for the plaintiff, yet it is a significant doctrinal waypoint. By explicitly carrying Muldrow into the ADEA context and beyond job transfers, the Seventh Circuit lowered the threshold for proving an adverse action across multiple discrimination statutes. However, the court’s affirmance underscores that the relaxed standard is not a free pass—employees must still link the harm to a genuine employment term, produce concrete comparator evidence, and rebut asserted performance deficiencies with more than speculation. Employers, for their part, should view PIPs and reorganizations as still viable but document why the actions are taken and ensure consistency across age cohorts.

The decision thus both clarifies the law and cautions litigants: the statutory language may be read more generously post-Muldrow, yet the evidentiary bar to survive summary judgment remains formidable.