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March 12, 2003


The opinion of the court was delivered by: David H. Coar, District Judge


Plaintiff, Talmitch Jackson ("plaintiff' or "Jackson"), filed suit against John Ashcroft, the Attorney General of the United States, the Drug Enforcement Administration ("DEA") and individual DEA employees alleging that his fights under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., were violated when the DEA held his applications in abeyance while fully processing lower scoring and/or less qualified males for the DEA special agent position. Before this court is defendants' motion for summary judgment. For the reasons set forth below, defendants' motion for summary judgment is granted.

I. Factual Background

Jackson initially applied for a position as a Special Agent with the DEA in January 1986. At that time, applications for the DEA Special Agent positions were handled as open admissions. Applicants who met the minimum qualifications were interviewed by a panel which comprised three Special Agents and the Recruitment Coordinator. The coordinator normally was not a voting member of the panel. Applicants were rated by the interviewers on their appearance, bearing and manner, oral expression, drive, self-confidence, resourcefulness and social adjustment. Each panel member gave the applicant a numerical rating on a five point scale. Scores of 4.5-5.0 were considered outstanding; 3.5-4.4 excellent; 3.0-3.4 satisfactory; under 3.0 unsatisfactory. Applicants received a composite score based on the average of the scores of the panel members. Jackson was interviewed on January 22, 1987, and received a rating of 3.3 on a 5 point scale. Based on his score of 3.3, Jackson was recommended for future consideration and his application was sent on to headquarters. At that time, applications were to be processed as jobs became available. No action was taken on Jackson's application and he reapplied to the DEA on several occasions, most recently in June 1991.

Jackson was afforded a second interview on August 6, 1991. The panel consisted of the Recruitment Coordinator, Special Agents Steven Bissegger, Walter Peasant, Larry Johnson and William Zopp. At the interview Jackson mentioned that he believed he had been subject to discrimination when he worked for the Chicago Fire Department. Jackson received a rating of 4.1 from S/A Peasant, a rating of 3.6 from S/A Johnson, and a rating of 4.7 from S/A Zopp. As the Recruitment Coordinator, S/A Bissegger completed a composite descriptive appraisal based on the panel's comments. The panel's composite score was 4.1. This rating was in the category of "excellent," and the panel recommended Jackson for consideration for hire.

Pursuant to a request from the Special Agent Programs Manager at DEA Headquarters, DEA's Chicago Field Division Special Agent in Charge ("SAC") Kenneth Cloud sent a recommendation to DEA Headquarters on August 13, 1992, that seven applicants, including Jackson, be considered for hiring. The panel scores of the seven applicants ranged from 4.10 to 5.0. Jackson's score of 41 was the lowest score of the seven. The racial breakdown of the candidates were two black men (including Jackson), one Hispanic man, and four white men. The other black mate received a score of 4.6, the third highest. The Recruitment Unit eliminated from consideration any applicant who had a panel score of below 4.0. Approximately 1500 applicants fell below the 4.0 cutoff. For the remaining applicants, including Jackson, the Recruiting Unit examined the panel score, knowledge, skills and abilities, experience, language abilities, any special skills or qualifications and the recommendation from the Special Agent in Charge of the office that referred the applicant. Background investigations were first initiated for those applicants who were determined to be the most qualified.

From October 1991 to June 1992, William Ruzzamenti was Special Agent Programs Manager in Personnel and was responsible for making selections for new Special Agents. Ruzzamenti did not select Jackson as among the most qualified. Ruzzamenti concluded that Jackson did not have special skills or investigative experience that made him stand out from the other candidates. Although Jackson's file was not immediately forwarded for a background investigation, he remained eligible for hire and recommended by the Chicago Field division. In April 1993, however, DEA management concluded that budgetary constraints required a reduction in the large Special Agent applicant pool. It was decided that those applicants who were ready to be hired and applicants who had passed the background investigation and needed only medical and physical fitness tests would be retained in the poo1. the remaining 998 applicants, including Jackson, who had not completed the background investigation phase, were sent letters informing them that their applications were being closed. Jackson was informed by letter of May 20, 1993, that his application had been closed, as all recruiting activity for Special Agents had been put on hold. Jackson was also notified that no further recruiting activity was contemplated before late 1994. The letter advised Jackson that the decision was due to budgetary reasons, and was in no way a reflection on you or your qualifications." The letter also suggested to Jackson that he maintain contact with the local recruiter so that he could pursue his application whenever the DEA resumed recruitment activity.

The racial breakdown of the 998 applicants (including Jackson) whose applications were closed is as follows: White (79.3%); Black (10.6%); Hispanic (7.6%); Asian (1.7%); and American Indian (.8%). Many of the white applicants whose applications were closed had higher panel rating scores than Jackson. The racial breakdown of Special Agents hired during the period May 1991 — May 1993 is as follows: White (77.0%); Black (10.5%); Hispanic (10.1%); Asian (2.0%); and American Indian (0.4%).

Jackson contacted an Equal Employment Opportunity counselor on or about June 10, 1993 to complain about his non-selection, and in August 1993, Jackson filed a formal complaint, alleging that his application for employment with the DEA had been rejected because of racial discrimination and reprisal. The DEA issued a Final Agency Decision denying Jackson's complaint of discrimination.

II. Summary Judgment Standard

Summary judgment is appropriate when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp., v. Catrett, 477 U.S. 317, 322 (1986). The moving party may meet its burden of showing an absence of disputed material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 325. Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248; Insolia v. Philip Morris. Inc., 216 F.3d 596, 599 (7th Cir. 2000). The summary judgment standard is applied with special scrutiny to employment discrimination cases because the outcome may depend on determinations of credibility and intent. Michas v. Health Cost Controls of Illinois, 209 F.3d 687, 692 (7th Cir. 2000).

III. Discussion

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., "provides the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. General Services Administration, 425 U.S. 820, 835 (1976). Jackson has named as defendants the Attorney General of the United States, the Drug Enforcement Administration ("DEA") and individual DEA employees who were involved with his employment application. The only proper defendant in a Title VII suit by a federal employee, however, is the head of the employing claims against the individual defendants and the DEA are dismissed.

Jackson alleges that he was denied employment because of his race and because he had filed EEO complaints in the past.*fn1 Jackson does not have direct evidence of discrimination. He may nevertheless establish a prima facie case of discrimination if he is able to present evidence: (1) that he belongs to a protected class; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-4 (1981). With respect to his claim of retaliation, Jackson must also present evidence sufficient to show that the DEA would have hired him "but for" his engagement in the protected activity. See Sweeney v. West, 149 F.3d 550, 555 (7th Cir. 1998); McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 483 (7th Cir. 1996). Once the plaintiff has established a prima facie case of discrimination, the burden of production shifts to the defendant to articulate a "legitimate, nondiscriminatory reason" for its action. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994). Once such a reason is ...

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