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August 25, 1994

CAROL BROWNER, Administrator, U.S. Environmental Protection Agency, Defendant.


The opinion of the court was delivered by: JAMES B. MORAN

This matter is before the court on defendant United States Environmental Protection Agency's ("EPA") motion for summary judgment. Plaintiff Susana Perdomo claims that Eric Cohen, her supervisor at EPA, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et seq. ("Title VII"), by failing to recommend her for a promotion because she is Hispanic. For the following reasons, EPA's motion for summary judgment is granted.


 Perdomo graduated from law school in 1986 and began employment shortly thereafter at the Office of the Regional Counsel of EPA, Region 5, which employs approximately 109 attorneys (Cplt. PP 7-8; Plf. Stmt., P 2). Region 5 is divided into three branches headed by branch chiefs; Perdomo worked at the Air, Water, Toxics, General Law branch ("AWTGL branch"), of which Eric Cohen is branch chief. AWTGL branch is divided into three sections supervised by section chiefs who report to Cohen.

 Perdomo had not passed the bar exam when she started work in August 1986 and was therefore initially classified as a GS-11 law clerk. (Government employment positions are typically "graded" in accordance with position classification standards published by the U.S. Office of Personnel Management.) When Perdomo was admitted to the bar in October 1987, she was appointed to the position of general attorney, GS-11 (Plf. Stmt., P 2). In March 1988, Eric Cohen, who was then Perdomo's section chief, recommended her for promotion to general attorney, GS-12. In September 1989, Cohen recommended Perdomo for promotion to general attorney, GS-13, although it is not clear from the record whether at that time he was her section chief or the acting AWTGL branch chief (Cplt, P 10; Plf. Stmt., P 24).

 In December 1992, Gail Ginsberg, Regional Counsel for Region 5, received approval from the region administrator to create some non-supervisory general attorney GS-14 positions within Region 5 (Plf. Stmt., P 6). Ginsberg asked the Region 5 branch chiefs, including Eric Cohen, to recommend persons in their branches who might be qualified for a GS-14 position (Plf. Stmt., P 8). In response to Ginsberg's request, Cohen consulted with the three section chiefs in AWTGL branch, Catherine Fox, Stephen Mendoza, and Sandra Lee, and thereby developed a list of attorneys within the branch who were eligible or would soon be eligible for promotion. Persons classified as GS-13 for two years within the next year and having satisfactory performance records were eligible for promotion to GS-14 (Plf. Stmt., P 9). Under these criteria, five GS-13 lawyers in AWGTL branch were eligible for promotion: Perdomo, Susan Tennenbaum, Monica Smyth, Janice Loughlin, and Michael Graves (Plf. Stmt., P 10).

 Mendoza, Perdomo's section chief, learned on January 19, 1993 that Tennenbaum and Loughlin had been selected for GS-14 classification when he heard Cohen ask Fox to prepare the justification memos (Plf. Stmt., P 75). According to plaintiff, Mendoza asked Cohen to reconsider his decision not to promote Perdomo; Cohen allegedly said he would reconsider if Mendoza prepared a justification memo showing how Perdomo qualified for GS-14 classification under the Hardy criteria (Plf. Stmt., P 77). Although Mendoza and Perdomo prepared a justification memo for Perdomo which Cohen reviewed, Cohen did not change his decision (Plf. Stmt., P 79). On February 11, 1993, the Region 5 administrator gave the final approval for Loughlin and Tennenbaum to be promoted to GS-14 (Plf. Stmt., PP 12, 13).

 Perdomo believes that she was more qualified for the GS-14 promotion than either Tennenbaum or Loughlin. She claims that Cohen did not refer her for the promotion because she is Hispanic and that this is disparate treatment because of her race and/or national origin (Cplt., P 37). EPA responds that Cohen did not discriminate against Perdomo but made his decision because he believed that although Perdomo was eligible for a GS-14 position, she was not qualified for one (Ans., P 37; Def. Stmt., P 17). Cohen also stated at his deposition that he believed that Tennenbaum and Loughlin were best qualified for promotion to GS-14.

 Perdomo argues that the reasons Cohen states for not promoting her are pretextual (Plf. Mem., pp.7-12). First, Perdomo claims that not only was she qualified for a GS-14 position, but also that she was more qualified than Tennenbaum and Loughlin (Perdomo Dep., p.45). She points out that at the time of the GS-14 promotions, she had received better evaluations and more performance awards than Tennenbaum or Loughlin and that she had worked at EPA almost three years longer than Tennenbaum and four and-a-half years longer than Loughlin (Cplt., P 33, 34). Perdomo also asserts that Cohen's motivation is suspect because he did not follow EPA guidelines during the promotion selection process *fn1" (Plf. Mem., p.4). From this evidence, Perdomo surmises that the "only other reason" she was not promoted is that Cohen discriminated against her because she is Hispanic (Perdomo Dep., p.45). She does not present sufficient evidence to withstand EPA's motion for summary judgment.


 A. Summary Judgment Standards

 Rule 56 of the Federal Rules of Civil Procedure entitles a party to summary judgment if the pleadings, depositions, answers to interrogatories and affidavits establish that there is no genuine issue of material fact for trial. Fed. R. Civ. P. 56(c). There is no genuine issue of material fact for trial where the record shows that a rational trier of fact could not find for the non-moving party. UN. Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261 (7th Cir. 1991). Accordingly, if the court determines that a plaintiff has no evidence to prove an essential element of a case in which he has the burden of ...

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