A. Failure to Promote Based on Age and Religion
Rabinovitz may attempt to prove his ADEA and Title VII claims in either of two ways. Rabinovitz "may either present direct evidence of discrimination or follow the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)." Collier, 66 F.3d 886, 1995 U.S. App. LEXIS 27501, at *2; see also Sample, 61 F.3d at 547. Rabinovitz relies on the McDonnell Douglas burden-shifting method of proof.
The burden-shifting method includes three phases. First, Rabinovitz must establish a prima facie case of age and religious discrimination. "To establish a prima facie case for a failure to promote," whether it be due to his age or religion, Rabinovitz "must show that (1) he is a member of a protected group; (2) he applied for and was qualified for the position sought; (3) [the FAA] rejected him for the position; and (4) [with regard to religious discrimination, the FAA] granted the promotion to a person whose [religion] was different than [Jewish]," Sample, 61 F.3d at 548, and, with regard to the ADEA, that younger employees, who may or may not be over forty years of age, received the job or received favorable treatment. Roper v. Peabody Coal Co., 47 F.3d 925, 927 (7th Cir. 1995); Kralman v. Ill. Dept. of Veterans' Affairs, 23 F.3d 150, 154-55 (7th Cir. 1994).
Once Rabinovitz establishes a prima facie case, a rebuttable presumption is created that the employer's decision not to promote Rabinovitz was based on the "consideration of impermissible factors." DeLuca v. Winer Industries, 53 F.3d 793, 797 (7th Cir. 1995). Therefore, "the burden of production [--not proof--] then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action." Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 377-78 (7th Cir. 1995). "If a legitimate explanation is provided, the presumption of discrimination dissolves, and the burden shifts back to the plaintiff to show that the employer's proffered reasons are a pretext for age [and religious] discrimination." Id. at 378. Thus, the ultimate burden of persuasion rests with, and never shifts from, the plaintiff at every point in the litigation process. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2748-49 (1993).
Plaintiff must prove "'that he would not have been discharged "but for" his employer's motive to discriminate against him because of his age.'" Umpleby v. Potter & Brumfield, Inc., 69 F.3d 209, 1995 U.S. App. LEXIS 31340, (7th Cir. 1995); Karazanos v. Navistar Int'l Trans. Corp., 948 F.2d 332, 335 (7th Cir. 1991) (quoting LaMontagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1409 (7th Cir. 1984)); see also Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1219 (7th Cir. 1991).
Rabinovitz alleges that the FAA neglected to select him for two different supervisory positions based on age and religious discrimination. Rabinovitz provided ample evidence to establish a prima facie case for both age and religious discrimination: (1) he is of the Jewish faith and over the age of 40; (2) he applied for both positions and was deemed qualified by the FAA; (3) he was not selected for either of the two positions; and (4) the three chosen selectees were not Jewish and were younger than Rabinovitz.
In response to the prima facie case, the FAA articulated a legitimate, non-discriminatory reason for selecting individuals other than Rabinovitz: that all three selectees exhibited better supervisory and managerial skills, thus, they were better qualified than Rabinovitz. The sole remaining issue is whether Rabinovitz has provided sufficient evidence to prove that the FAA's reason is pretextual.
To prove that the FAA's reason is pretextual, i.e. "phony," Rabinovitz must show that the FAA does not "honestly believe in the reasons it offers [to justify the non-selection], not whether the FAA made a poor business decision." Rand v. CF Indus., Inc., 42 F.3d 1139, 1145 (7th Cir. 1994) . Summary judgment is inappropriate only if Rabinovitz provides "enough evidence from which a reasonable fact-finder could infer that [the FAA's] proffered reasons for terminating [him] were false and that he was actually [passed over] because of his age [and religion]." Sirvidas, 60 F.3d at 378. However, Rabinovitz has not provided enough evidence to create a genuine issue of fact as to the FAA's motives for hiring others for the two positions; there is no evidence to show that the FAA's reason was false or that Rabinovitz was passed over because of age or religion.
Therefore, summary judgment must be granted.
1. Supervisory Realty Specialist Position
The evidence shows that Rabinovitz applied first for an SRS position. Rabinovitz took part in a competitive bidding process enacted by the FAA. An unknown number of people applied for the position. In addition to his application, Rabinovitz submitted written responses to show his knowledge, skills, abilities, and other characteristics. Of the sum of applicants, an MPP found Rabinovitz to be one of five qualified applicants.
A fact worth noting, the MPP included a civil rights staff designee whose role on the panel was to ensure that employment discrimination does not occur. The MPP ranked the five qualified applicants. Rabinovitz was rated last. All three of the members stated in affidavit form that age and religion bore no part in the rating process and that they were unaware of Rabinovitz's religious preference. Two supervisors then interviewed the five qualified applicants. The questions posed to the applicants focused on managerial and supervisory issues. Both supervisors rated Rabinovitz last. Both supervisors also stated that age and religion were of no importance in their decision and that they had no knowledge that Rabinovitz was of the Jewish faith.
Libby then made the final decision, and found that although Rabinovitz had the requisite technical real estate expertise, as shown by his yearly "exceptional" reviews, he did not have the necessary managerial skills for the position. Libby did know of Rabinovitz's religion. She did not request such information. For his own reasons, Rabinovitz volunteered his religious affiliation. Prior to making her decisions known, Libby asked two other supervisors whether her decisions were sound. Both supervisors concurred with her decision to select Sipek and Russo, and she subsequently published her choices. Each step of the selection process was carefully documented and corroborates the testimony of those who took part in the decision-making procedures.
In response to the documents and testimony provided by the FAA, Rabinovitz provides affidavits of several co-employees opining that Rabinovitz was the most qualified for the job and that they believe, without instances of proof, that Rabinovitz was not selected due to his age and religion. However, these affidavits merely offer others' value judgments as to the managerial skills of Rabinovitz. These contrary assessments of Rabinovitz's skills, however, are irrelevant. The court need not make a determination as to whether the refusal to select Rabinovitz was a prudent business practice or based on incorrect information. Instead, the issue of pretext focuses on the question of whether the employer honestly believes in the reasons it asserts. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). As often cited:
[This court does] "not sit as a super-personnel department that reexamines an entity's business decisions." Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). "No matter how medieval a firm's practices, no matter how highhanded its decisional process, no matter how mistaken the firm's managers, [the ADEA does] not interfere." Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560 (7th Cir. 1987). Rather, our inquiry is limited to "whether the employer gave an honest explanation of its behavior."
Id.; Smith, 876 F.2d 1315, 1321 (quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)) (brackets in original).
Rabinovitz also claims that Libby's reference to a "big picture" when making her selections is evidence of her discrimination against older Jewish individuals. This conclusion, however, involves an illogical "jump." "A party to a law suit cannot ward off summary judgment with an affidavit or deposition based on rumor or conjecture." Palucki v. Sears Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989). "Inferences and opinions must be grounded on more than flights of fancy, speculation, hunches, intuitions or rumors and discrimination law would be unmanageable if disgruntled employees . . . could defeat summary judgment by affidavits speculating about the defendant's motives." Rand, 42 F.3d at 1146. If a court were to hold the contrary, "there would be no summary judgment in age discrimination." Id.
Drawing all reasonable inferences in favor of the non-movant, Rabinovitz, the reasonable inference which can be drawn from the evidence is that Rabinovitz lacked the skills required of FAA managers and supervisors, the skills which might have been gained had Rabinovitz attended the management training courses suggested by Libby but refused by Rabinovitz. See Collier v. The Budd Co., 66 F.3d 886, 1995 U.S. App. LEXIS 27501, at *18 (summary judgment precluded when an employee is willing to acquire skills necessary for the position, but the employer offered only general assertions of non-discrimination in support of its hiring of younger employees). Nothing in the record casts doubt on Libby's motives as to selecting younger applicants not of the Jewish faith. Both selectees were more qualified and, thus, more appropriate choices for the positions. Rabinovitz offered no statistical evidence as to the numbers of either older or Jewish employees who have been "passed over" for promotions. Rabinovitz supplied no information suggesting that the individuals involved in the unanimous decision not to select Rabinovitz (specifically Duckworth, Ostrand, Dettmer, Timmerman, Puoci, Libby, Busker and Washington) based their decisions on his age and religious preference. The only evidence Rabinovitz offers the court is his own self-serving testimony that the decision-makers possess improper motives and the opinions of others that he was more qualified than those selected. This evidence is insufficient to withstand summary judgment.
2. Realty Officer Position
In the same month that Libby chose not to select Rabinovitz for the Supervisory Realty Specialist ("SRS") position, a new position became vacant. This position, a Realty Officer position, was essentially the supervisor to the SRS position. Of the thirteen applicants for the position, the MPP found eleven to be qualified. Rabinovitz was among those found qualified. In this case, the MPP did not rate the applicants. Rabinovitz was later interviewed by two supervisors. Both supervisors, Johnson and Landon, found Rabinovitz to have the requisite technical knowledge, but to have a deficient knowledge of managerial and supervisory skills. Libby chose not to select Rabinovitz for those same reasons. Libby again offered Rabinovitz the opportunity to take part in management training. Rabinovitz refused.
As in the previous section, the evidence is clear: Rabinovitz possessed the necessary technical real estate expertise yet, according to the decision-makers, Johnson, Landon and Libby, lacked essential management and supervisory skills. Since Shepack exhibited the requisite management skills, he was more qualified and, thus, deserving of the job. Therefore, Libby selected Shepack. The affidavits of Cantine, McMahon, and Dooley are of no importance to this issue since they involve merely difference of value judgments. Yet, since Rabinovitz has not provided any evidence to support his contention that the FAA promoted others, but not him because of his religion and age, summary judgment is warranted.
B. Retaliation For Filing Discrimination Charges
In Count II of his Complaint, Rabinovitz alleges that the FAA retaliated against him for filing the EEOC charges. To establish a prima facie case of retaliation for filing a discrimination complaint, Rabinovitz must prove (1) that he was engaged in protected activity, (2) that he suffered an adverse action by the employer; and (3) that a causal link exists between the protected activity and the adverse action. Brenner v. Brown, 36 F.3d 18, 19 (7th Cir. 1994).
Rabinovitz did file two employment discrimination charges. Thus, it is undisputed that he established the first element of the prima facie case. However, the remaining two elements, whether Rabinovitz suffered an adverse employment action by the FAA and whether a causal link exists between the protected activity and the adverse action, remain contested and require discussion.
Rabinovitz claims that the FAA conducted two retaliatory measures, i.e. adverse employment actions, against him: two of his direct supervisors created an "intolerable work environment" resulting in a constructive discharge; and Russo lowered the yearly review rating which precluded Rabinovitz from receiving a $ 500 bonus.
The Seventh Circuit defines a materially adverse employment action as a change in terms or conditions of employment beyond
a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.
Crady v. Liberty National Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993).
The court first addresses whether Shepack and Russo created such an intolerable work environment that Rabinovitz was "forced" to resign. In general, "an employee may not be unreasonably sensitive to his working environment," Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989), and must seek redress while remaining on the job "unless he is confronted with an aggravated situation beyond ordinary discrimination." Id. "To state a claim for constructive discharge, [Rabinovitz] needs to show that [his] working conditions were so intolerable that a reasonable person would have been compelled to resign." Chambers v. American Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir. 1994). "Where work conditions are intolerable, under the constructive discharge doctrine a plaintiff can resign, and then bring suit against her employer as if [he was] fired." Id. "But to be actionable under Title VII [and the ADEA], the work conditions need to be more than merely intolerable--they need to be intolerable in a discriminatory way." Id.
In support of the constructive discharge allegation, Rabinovitz first complains that Shepack and Russo selectively enforced office restrictions and federal government policies solely against him, including restricting him to talking about the business at hand, limiting routine breaks to 20 minutes, and prohibiting him from using the branch secretary. Russo admits that he told Rabinovitz not to speak to others about non-business subjects, but defends the restriction by stating, first, that the restriction is FAA policy, and that Rabinovitz repeatedly abused the office policy by using the office to voice his personal complaints about not getting promoted to a captive audience of co-workers while on the job. With regard to the other restrictions, Russo states that these FAA policies were applied with every member of the office. Although Dooley, McMahon, and Cantine all testified that the office policies were only enforced against Rabinovitz, the record is devoid of any evidence in which Russo or Shepack ever sanctioned Rabinovitz for failing to abide by the policies. Second, Rabinovitz claims that Russo and Shepack disallowed him from exercising his "flex time" option. However, Russo gave a legitimate, non-discriminatory reason; since the FAA requires that each office have a technical person working between 7:30 a.m. and 4:30 p.m., Russo denied all requests made by such technical employees to work before 6:30 a.m. Third, Rabinovitz argues that Russo and Shepack sent him out-of-town on business the first day the EEOC investigator reported to the office to begin investigating his discrimination claim. The court acknowledges that neither Russo nor Shepack gave a valid reason for why they chose Rabinovitz for the out-of-town job or whether they knew that the investigator was scheduled to visit. However, how being away on government agency business at government expense is detrimental and not beneficial is not clear. More importantly, how not meeting with the investigator on the first day of a long, detailed investigation prejudiced Rabinovitz is not shown. Rabinovitz does not claim he was denied any opportunity to meet with the investigator during the course of the long investigative process. He does not claim that the FAA interfered with access to investigators.
However, even viewing the above factual disputes in a light most favorable to Rabinovitz, the court finds that he cannot meet the strict standard required of a constructive discharge plaintiff. Assuming (1) that Rabinovitz was not allowed to speak with anyone except about business, (2) that Rabinovitz had to follow the policy on breaks of 20 minutes, (3) that Rabinovitz had to use his assigned computer rather than the secretary, (4) that Rabinovitz had to start work at 6:30 a.m. instead of 6:00 a.m., and (5) that Russo and Shepack assigned Rabinovitz to a business trip on the same day as the EEOC investigation, Rabinovitz still has not shown that the work environment became so intolerable and hostile that a reasonable person would resign from employment. Rabinovitz has not shown that his working conditions at the FAA were so onerous or demeaning that he was compelled to leave his employment.
The record does make apparent the existence of a clash between several supervisors and a subordinate, not because of Rabinovitz's age, religion, or discrimination charges, but because of the aforementioned job selections and office complaints about them. Both Shepack and Russo successfully applied for the two jobs Rabinovitz did not receive. It is clear from Rabinovitz's testimony that he believed that he was more qualified than Shepack and Russo, and was a disgruntled employee. This is not to say that the work environment was pleasant. Certainly conflicts arose and friction was ever-present in the workplace. However, these three examples of disharmony took place in a sporadic eighteen-month span, and although the examples show that work, at times, was unenjoyable, the environment was not so abominable that Rabinovitz was forced to resign. Rabinovitz provided no evidence of complaints to Russo and Shepack's supervisors. Rabinovitz chose not to seek redress through the FAA chain of command and, instead, chose to resign.
With regard to the lower rating and missed bonus, the court finds that Rabinovitz suffered no demotion, did not lose any retirement or medical benefits, and retained the same job responsibilities and title. Rabinovitz was not entitled to the bonus by the very definition of the work "bonus." A bonus is that "amount paid over what is required; a premium." The New Webster's Dictionary, (Lexicon publications, Inc. 1986), p. 22. Rabinovitz did not receive an unsatisfactory rating, he received a "fully successful" rating. Thus, Rabinovitz failed to establish that he suffered an adverse employment action.
Since the court finds that the work environment was not so intolerable as to equate to a constructive discharge, and that a lower rating and loss of the $ 500 bonus is not tantamount to an adverse employment action, Rabinovitz has failed to establish the second element of the prima facie case. Accordingly, the court enters judgment with respect to Count II against Rabinovitz and in support of Defendant Pena.
Nevertheless, the court will address the third element of the prima facie case of retaliation. Presupposing that Rabinovitz did suffer an adverse employment action, the submissions of Rabinovitz do not show facts from which a reasonable person could infer that the adverse action was because Rabinovitz was of the Jewish faith or 65. Shepack and Russo enforced the office restrictions because of Rabinovitz's previous abuses. Russo denied Rabinovitz's changed request to work one-half-hour earlier due to an FAA policy. Further, Russo was unaware of Rabinovitz's previous yearly ratings and rated Rabinovitz as "fully successful" because Rabinovitz lacked certain computer and real estate skills. The court takes note that the alleged retaliators, Shepack and Russo, are other than the alleged discriminators in Count I. Rabinovitz did not name Shepack and Russo in the EEOC complaints, and it follows that Shepack and Russo had no motive personally to retaliate. In sum, even if this court were to find that Rabinovitz suffered an adverse action, there is no factual dispute as to the causal link requirement. Simply put, no such link exists and Rabinovitz's claim must fail.
In granting summary judgment in favor of Defendant, the court is mindful of the Seventh Circuit's most recent holding with regard to age discrimination and the ADEA, Collier v. The Budd Co., 66 F.3d 886, 1995 U.S. App. LEXIS 27501. Although the Collier court acknowledged that the case represented a "close matter," the court found that the plaintiff cast sufficient doubt on the employer's proffered reasons to make summary judgment inappropriate. Id. at *14. However, several distinctions exist between Collier and the instant case. First, the employer in Collier "produced very little evidence to support its proffered reasons." Id. at *15. In the case sub judice, the FAA provided a large sum of evidence showing that the many decision-makers did not discriminate due to age and religion, but instead chose not to select Rabinovitz because of his marked lack of managerial skills. Second, the Collier plaintiff "presented evidence that he could perform the specific tasks for which [the employer's agents claimed] they needed [the younger, selected employees.]" Id. at *17. Yet, Rabinovitz provided no such evidence; the record is replete with evidence that Rabinovitz lacked the requisite managerial skills. Third, the Collier plaintiff admitted that although he was more qualified in some areas than the selectees, he was less qualified in others. Yet, the plaintiff was willing to "quickly acquire the knowledge and contacts necessary to [perform the required duties]." Id. at *14. Rabinovitz, on the other hand, repeatedly refused to acquire the necessary knowledge, and instead chose to retire.
For the foregoing reasons, the FAA's motion for summary judgment is granted. The court finds that Rabinovitz failed to provide sufficient evidence to raise a genuine issue of material fact as to whether the FAA engaged in unlawful employment practices. Accordingly, the court enters judgment in favor of Pena and against Rabinovitz.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of defendant, Hon. Federico Pen, Secretary of Transportation, United States Department of Transportation and against the plaintiff, Martin Rabinovitz.
November 7, 1995