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December 18, 2002


The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge.


Richard Tevlin ("Tev1in") has filed an action under Title VII (42 U.S.C. § 2000e to 2000e-17), charging Metropolitan Water Reclamation District of Greater Chicago ("District") with race discrimination. Tevlin alleges that District failed to promote him based on his race (white) and instead promoted a black employee.

Tevlin filed a Fed.R.Civ.P. ("Rule") 56 summary judgment motion, together with submissions in compliance with this District Court's related LR 56.1.*fn1 District has not only responded to that motion but has filed its own Rule 56 motion, also in compliance with LR 56.1. For the reasons set forth in this memorandum opinion and order, both motions are denied.

Summary Judgment Standards

Familiar Rule 56 principles impose on parties moving for summary judgment the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose this Court must "consider the evidentiary record in the light most favorable to the non-moving party . . . and draw all reasonable inferences in his favor" (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). And Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001) has echoed the teaching of Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986):

A genuine issue of triable fact exists only it "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."

As with any summary judgment motion, this Court accepts each nonmovant's version of any disputed facts, but only so long as it is supported by record evidence. Where as here cross-motions are involved, the principles of Rule 56 thus demand a dual perspective — one this Court has sometimes described as Janus-like — that sometimes causes the denial of both motions. That has unfortunately proved to be the case here. In any event, what follows in the Facts section is culled from the parties' submissions.


District is a body politic organized under the laws of the State of Illinois (T. St. ¶ 3). Tevlin, a white employee of District, received a right to sue letter from the Equal Employment Opportunity Commission on his charge of discrimination against District, in which he asserted that he had been discriminated against on the basis of race when a black employee, Lucille Odoucha, ("Odoucha"), was promoted to an available Treatment Plant Operator III ("TPO III") position at District's Kirie Plant instead of Tevlin (T. St. ¶ 1).

Both Tevlin and Odoucha were Treatment Plant Operator IIs ("TPO IIs") at the time of the promotion in question. There are only two written requirements f or promotion from a TPO II to a TPO III (T. App. Tab 8, Tab B at 2):*fn2

One year of service with the District as a Treatment Plant Operator II. Civil service status as a Treatment Plant Operator II.

All "reachable" candidates were then interviewed by a panel of District representatives, who graded the applicants' answers to questions (D. St. ¶ 23). Those scores were compiled in an interview matrix that was provided to District's General Superintendent John Farnan ("Farnan") for his approval of the appointment to the TPO III position (D. St. ¶ 23). Tevlin's average score on the interview matrix was 77.25 (D. Add. St. ¶ 8), while Odoucha's was 70.25 (D. Add. St. ¶ 9). Farnan testified that scores within five to ten points of each other are within the same realm or same relative grouping (T. Ex. 6 at 34-35).

Tevlin and District disagree over other factors to be considered in the decisionmaking process. Tevlin argues that other factors such as tenure at the facility, disciplinary and service record, recommendations by supervisors/plant managers and the EEO recommendation should be considered (T. Mem. 8-9). District claims that the only factors that "need be considered under the District's statutorily mandated framework for promotions" are that the employee is "reachable" and whether the General Superintendent deemed an affirmative action appointment appropriate (D. Mem. 5). Moreover, District denies that any of the other factors proposed by Tevlin make Tevlin more qualified for the appointment than Odoucha (D. St. ¶ 36).

Tevlin had worked 17 years at the Kirie Plant (T. St. ¶ 21), while Odoucha had never worked there (T. St. ¶ 21). Although service at a particular plant is not required for promotion to the TPO III position at that plant (D. Add. St. ¶ 33, T. Reply St. ¶ 33), Tevlin argues that service at a particular plant is very important to the decision to promote to TPO III (T.R. Mem. 2-3).

Tevlin's service ratings as a TPO II had always been "Exceeds Standards," and he had never been disciplined (T. St. ¶ 22). Odoucha's service rating as a TPO II was "Meets Standards" (T. Ex, 8D), and she had received a written warning while working as a TPO II (D. St. ¶¶ 22, 23). Discipline does not automatically disqualify a candidate from being promoted to a TPO III (D. Add. St. ¶ 52), but Tevlin argues that her disciplinary warnings should be a factor against the promotion of Odoucha (T. Mem. 8).

William Munch ("Munch") is the Assistant Chief Engineer in the Maintenance and Operations Department (D. St. ¶ 15). Munch recommended Tevlin rather than Odoucha for the TPO III position at Kirie (T. St. ¶ 23). Lee Rakowski was the Plant Manager at Kirie, and he too recommended Tevlin for the TPO III position at Kirie (T, St. ¶ 29). Under District rules the "final selection [for a promotion] is the responsibility of the various department heads with the approval of the general superintendent [Farnan]" (T. St. ¶ 31).

According to EEO officer Frances Wilkins ("Wilkins"), "merit factors being equal" means that a vacancy may be filled with a minority or female employee "so long as that person is qualified for the appointment in accordance with the statutory requirements imposed upon the District" (D. Add. St. ΒΆ 15), which means that anyone who has passed the promotional exam and is "reachable" has equal merit factors. In contrast, Director of Personnel Matthew Menze believes that candidates with widely disparate scores, for example ...

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