Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 3427--James B. Moran, Judge.
Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge and GRAY, Senior District Judge.*fn*
Plaintiff Ruth Mason was employed by the Department of Housing and Urban Development (HUD) on November 2, 1980, as an accounting technician in the Chicago Regional Accounting Division subject to a probationary period of one year. She was discharged on July 24, 1981, and in February 1984 she filed a four-count complaint against Samuel Pierce, Secretary of HUD; three of HUD's Chicago officials; and a HUD instructor who had supervised plaintiff's training in New York. Plaintiff sought reinstatement, back pay, punitive damages and declaratory relief. Defendants filed a motion for dismissal or summary judgment, and on June 29, 1984, the district court granted summary judgment to defendants and simultaneously filed an 8-page opinion in their favor (Def. App. 66-75; Pltf. App. A-3 - A-10).
Count I of the amended complaint (Def. App. 12-14) was directed against the HUD Secretary and stated that plaintiff was terminated "either without cause or for improper cause, in violation of her rights" on July 24, 1981, and that subsequent administrative reviews of the discharge were improper. Plaintiff complained that she was discharged because of her black race and gender in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e).
Count II asserted that plaintiff was discharged because she was 54 years old, allegedly in violation of the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.). Count II states that plaintiff exhausted her administrative remedies and was challenging the April 13, 1983, final decision of HUD's Director of Equal Employment Opportunity that plaintiff was not terminated because of her race, sex, or age (Def. App. 22-27). Again Secretary Pierce was the only defendant named in this Count (Def. App. 14-15).
Count III is also only against Secretary Pierce and requests declaratory relief under 28 U.S.C. § 2201 that "because of her race and gender and age she [Mason] was singled out for unfair application of employment-rating standards in contravention of 5 U.S.C. § 4303*fn1 and was ultimately wrongfully discharged" (Def. App. 15-16).
Count IV asserts that plaintiff's discharge was retaliatory in violation of First Amendment rights as a result of her attempt to protest her discharge. Unspecified punitive damages were sought against four named HUD employees, but not against Secretary Pierce. (Def. App. 16-18).
In support of their mention for summary judgment, the defendants submitted the record compiled by HUD from the time plaintiff, at the suggestion of HUD, contacted a HUD Equal Employment Opportunity counselor*fn2 on July 23, 1981, until the above-mentioned final HUD decision of April 13, 1983, that Mason had not been terminated illegally. The EEO counselor reported his lack of success in attempting to resolve plaintiff's problem in September 1981, resulting in her filing a complaint of discriminatory termination with the Equal Employment Opportunity Commission on October 1, 1981. Since she did not proceed with her complaint or a proffered hearing, the EEOC sent its file on Mason's case to HUD about January 21, 1983. HUD proceeded to render a final adverse decision based upon the Report of Investigation by the EEOC. On April 13, 1983, HUD's Director of Equal Opportunity concluded that the evidence did not support Mason's complaint based on age, sex and racial discrimination (Def. App. 26).
Defendants also submitted two affidavits of Charles Loef, who was the official responsible for hiring, supervising and terminating plaintiff. The district court was also furnished with all documentation related to plaintiff's employment from the time of her appointment, including warning letters about her poor job performance, her error-replete work sheets from December 1980 through June 1981, and her July 8, 1981, termination notice, terminating her effective July 24, 1981, for "lack of competence" and "unsatisfactory performance" due to inaccuracy in recording figures and making arithmetical calculations. The defendants' submission to the district court also included excerpts from plaintiff's official personnel file detailing her past work history.
Although plaintiff submitted an affidavit in response, it contained only unsupported conclusory statements and did not demonstrate that she met HUD's legitimate job performance expectations.
Summary judgment was proper with respect to the first three counts of the amended complaint. Plaintiff has not made out a prima facie case of employment discrimination on the grounds of age, race and sex under the standards established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, and followed by this Court in, e.g., Mason [not this plaintiff] v. Continental Illinois National Bank, 704 F.2d 361, 366 (1983), and Davis v. Weidner, 596 F.2d 726, 729-733 (1979). Plaintiff's reply brief seemingly contends that defendants urged and the district court erroneously ruled that she had not met her burden of proof. Contrariwise, defendants have only urged that plaintiff has not met her initial burden of persuasion by the preponderance of the evidence that there was a prima facie case of discriminatory treatment (Br. 24-26) and Judge Moran so held (Def. App. 71-73).*fn3
Under McDonnell Douglas a plaintiff must show that (1) she belongs to the protected class, (2) she was qualified for the position, (3) she suffered an adverse employment decision, and (4) the employer sought to replace her. Three of the essential elements of a prima facie test are present because plaintiff was a 54-year-old black woman, terminated from her probationary position on July 24, 1981, and replaced by a white woman in her 70's.*fn4 Plaintiff, however, cannot prevail with respect to Counts I, II and III because the record does not show that she was qualified for the position as an accounting technician. The record does show that plaintiff was discharged by the Veterans Administration in January 1980 and was unemployed until HUD chose her from a register of eligible applicants from the United States Civil Service Commission. In her HUD appointment declaration, plaintiff did not reveal that she had been discharged by the Veterans Administration. Because plaintiff had applied for a HUD accounting technician position in the GS-525 series, whereas she had previously been a Veterans Administration time and leave clerk in the GS-590 series, she was required to serve a probationary period of one year in the HUD position. 5 C.F.R. § 315.801(a)(1) and Federal Personnel Manual, subch. 8, § 8-2 (Def. App. 6, 8 and 44). In this capacity, plaintiff was required to record payments and strike accurate running balances on individual account ledgers (Def. App. 29). Because the Chicago regional accounting operation of HUD was being reorganized in 1980, plaintiff and Peter Lowen, a 60-year-old white male, received their instructions in a three-month training period in New York from November 1, ...