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March 5, 1999


The opinion of the court was delivered by: Marvin E. Aspen, United States District Judge.


Donald Fisher sued his former employer, the Illinois Department of Corrections, alleging that he was denied a promotion because of his age and race, in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). The Department moved for summary judgment on both claims. For the reasons set forth below, we deny the motion.

I. Background

The briefing on this motion can best be described as "a mess." We will not cite all of the deficiencies here, but worst of all the Department — in a reply filed 19 days after an already substantially extended due date — completely failed to respond to or raise any evidentiary objections to Fisher's statement of additional material facts requiring the denial of summary judgment. Time and again, the judges of this Court have strictly enforced our Local Rules, e.g., Crawford v. Bank of Am., 181 F.R.D. 363, 364 (N.D. Ill. 1998) (Aspen, C.J.); McGuire v. United Parcel Service, 152 F.3d 673, 674 (7th Cir. 1998), which deem admitted all of the facts set forth in the plaintiff's statement of additional facts which are not properly controverted by the other party's response. We do so again today. Not only will these facts will be deemed admitted for purposes of this motion, but they will continue to be so considered for the duration of the case, including the trial. See Dawson v. New York Life Ins. Co., 932 F. Supp. 1509, 1513 (N.D. Ill. 1996) ("All uncontested statements of fact in either party's statement . . . are also deemed as being without substantial controversy for purposes of Rule 56(d) and shall be deemed as established for purposes of trial").*fn1 What follows, therefore, is a recitation of the facts as we can best discern them, looking at the evidence presented in the light most favorable to the plaintiff as we must on a motion for summary judgment.

Donald Fisher, a caucasian male, began working as Youth Supervisor for the Illinois Department of Corrections at the Joliet Youth Center in 1968, when he was 24 years old. In 1986, when he was 42 years old, he was promoted to the position of Youth Supervisor at Level III (YS-III). In the summer of 1995, when Fisher was 51, he heard of an opening for a Level IV (YS-IV) supervisor and applied for the promotion. When the YS-IV interview schedule was posted, Fisher's immediate supervisor, Chief of Security Robert Catchings, told Fisher in front of his co-workers that Fisher would not be promoted because Fisher was retiring, by which Catchings meant that Fisher was too old to be promoted. Fisher had no intention of retiring, however, nor had he ever announced any such plans to Catchings or to anyone else. After the interviews, the promotion was given to Robert Powell, a younger (45-year old) African-American male.

More YS-IV openings followed, and Fisher applied and interviewed again. He took the "Official Competitive Promotional Examination" in August of 1996 and received a grade of "A," indicating that he was "well qualified" for the YS-IV position. He was asked to serve as a temporary YS-IV on a number of occasions, and he did so for at least 83 days from August of 1995 through January of 1997. Whenever Fisher asked Catchings whether he would be promoted, however, Catchings told him, "No, you're going to be retiring." The second position went to Deborah McDonald, another younger (46-year old) African-American female. After Fisher's third application and interview, he was denied the promotion in favor of Mario Shumpert, a third younger (49-year old) African-American applicant. Fisher applied a fourth time but then declined to interview and withdrew his application. At that time, all of the YS-IV supervisors were African-Americans.

According to the Department of Corrections, Fisher was never promoted because someone else always received a higher interview score than he did. The Department claims that the interviews were conducted and the scores computed according to the "Rutan" method of evaluation.*fn2 According to James Mitchell, Superintendent of the Joliet Youth Center since 1991:

  Rutan is an interviewing format using objective criteria to
  evaluate candidates. The criteria vary for each person. The
  reason for using this method is to ensure that the best
  candidate is chosen for each position. Mr. Whitaker [who
  scored the interviews of each candidate] is trained in the
  methods of Rutan scoring.

Mitchell, who was the decision maker for the YS-IV promotions, went on to describe the procedure followed in the case of the YS-IV applicants: "All candidates were given the same set of questions. Each candidate was given a numerical score based on answers to the standard questions."

Mitchell also stated that "[i]n addition, the candidate's time usage, disciplinary records and performance evaluations were reviewed." We know the following about the records of Fisher and the employees who were promoted. Fisher was never charged with any wrongdoing and had never been suspended. However, the Department reprimanded Robert Powell shortly before his promotion for an inadequate search of a youth and for failing to respond to the charge. After finding Powell guilty of using excessive force on a youth, aggravated battery, filing a false/distorted report, and conduct unbecoming of a State employee, the Department suspended him for 10 days. About seven months before Mario Shumpert was promoted, the Department reprimanded him for failure to adhere to security practices. Just five days before Shumpert's interview, he was "written up" again for failing to do the work necessary in order for employees to receive their overtime pay. Shortly thereafter, the Department recommended that he be suspended for three days because of an earlier incident in which he failed to adhere to security practices and to supervise a youth.

Fisher also had more experience acting as a temporary YS-IV than did Robert Powell, and it was Fisher who trained Mario Shumpert in the YS-IV position. In addition, Fisher had seniority over each candidate promoted. Under the Collective Bargaining Agreement between Fisher's union and the Department, seniority is to be the controlling factor when candidates' ability and qualifications to perform the desired job are relatively equal.

Fisher was told by Mitchell that he was a good candidate but was not promoted simply because the Department had found someone better, and he was encouraged to keep applying. Fisher found a letter, however, which led him to believe otherwise. The letter, addressed to a union official and signed by Janet Richmond, the Department's Affirmative Action Coordinator, stated that the Department did not want to promote Fisher because they wanted a younger, black male for the position.

Fisher was humiliated. His co-workers started calling him "crazy old Indian" and told him to "go home, you're too old to be here." He was subjected to jokes and ridicule about his not getting the YS-IV job after interviewing three times for it. In December, 1997, Fisher complained about not being promoted, and Shumpert pushed him into a door and told him to leave the building. Fisher became depressed, sought treatment from a ...

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