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ESTER v. PRINCIPI

April 15, 2004.

MACARTHUR ESTER, Plaintiff,
v.
ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, Defendant



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant's motion for summary judgment. For the reasons stated below we grant the motion in its entirety.

BACKGROUND

  Plaintiff MacArthur Ester ("Ester") began employment as a GS-7 computer operator with the Department of Veterans' Affairs in Hines, Illinois ("VA") in 1975. In January 1991 Ester was promoted to a GS-10 assistant shift supervisor position. Ester was subsequently promoted to a GS-11 assistant shift supervisor position. In December of 1993 the VA posted an open position for a GS-12 supervisory computer operator position. In January of 1994 a panel was formed to interview candidates for the GS-12 position. The panel was convened in part because of questions about the fairness of the selection process raised by Ester. The panel interviewed three candidates including Ester. Based upon scores given by panel members, the panel decided to recommend Dorothy Fruit ("Fruit") for the position. The panel forwarded its recommendation to Benjamin Duncan ("Duncan") who in turn accepted the recommendation of the panel and selected Fruit for the position. Ester subsequently filed a complaint of discrimination alleging that he was not selected for the GS-12 position because of his gender and in retaliation for prior discrimination complaints.

  The prior judge in this case granted Defendant's motion for summary judgment in this case on February 24, 2000 on the basis that Ester had not exhausted his administrative remedies. The Seventh Circuit reversed the district court's judgment and remanded the case. Defendant has now filed a motion for summary judgment based upon Defendant's contention that Ester's claims cannot survive the scrutiny of a summary judgment motion analysis.

  LEGAL STANDARD

  Summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations or denials in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R. Civ, P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

  DISCUSSION

 I. Gender Discrimination Claim

  We note that there are references to some individuals' race including that of Ester in his filings, but the references are merely descriptive and the discrimination claim is solely based on allegations concerning his gender. For example, Ester begins his complaint by referring to himself as an "African-American former employee" and Ester indicated during his deposition that no African-American men were promoted beyond GS-9 or GS-11. However, Ester clearly indicates in his complaint, in the discrimination claim section, that he was discriminated against because of his sex. There is no mention of race in the discrimination section of the complaint. In addition there is no mention of Ester's race in his answer to the instant motion.

  Although, there are descriptive references to individuals' race in Ester's Local Rule 56.1 response and 56.1 statement, it is clear that Ester is solely asserting a gender discrimination claim and not a race discrimination claim. For example, in Ester's answer to the instant motion Ester argued that "Duncan discriminated against men in favor of women." (Ans. 10). Ester begins his 56. l statement of additional facts by stating that "Duncan treated women under his supervision differently than men [and] he was flirtatious toward women and would talk to them in a softer tone and hug and put his arm around them." (A SF 24). Also, in his statement of additional facts Ester states that his discrimination claim is based upon the alleged fact that Defendant "routinely refused to advance African-American males in higher graded positions while promoting African-American females over the males who are equally and, in some instances, more qualified." (A SF 29). Thus, there are descriptive references to race in some of the documents presented by Ester, but Ester's complaint and briefs indicate that his discrimination claim is based solely on alleged discrimination against Ester because of his gender.

  If employer in a Title VII discrimination case brings a motion for summary judgment, the plaintiff can proceed under the direct or indirect method of proof in order to defeat the motion. Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998). Under the direct approach, the plaintiff can show through direct or circumstantial evidence that the alleged harmful action of the employer was "motivated by an impermissible purpose, such as [his] race or national origin." Id.

  To establish a prima facie case of discrimination based upon a failure to promote, a plaintiff must show that: l) he is a member of a protected group under Title VII, 2) he was qualified for the position sought, 3) he was not chosen for the position sought, and 4) the employee chosen for the position was "not a member of the protected group and was not better qualified than the plaintiff." Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001), Ester does not present evidence sufficient to proceed under the direct method of proof and will therefore need to proceed under the indirect method. If a prima facie case is established then there is a rebuttable presumption of discrimination and the employer is required to offer a "legitimate, non-discriminatory reason for the adverse employment action." Cianci v. Pettibone Corp., 152 F.3d 723, 726 (7th Cir. 1998). If the employer provides such a reason, the plaintiff must then show that the reason alleged by the employer is merely a pretext for discrimination. Id.

  Defendants contend that Ester cannot establish the fourth element of the prima facie case which requires a plaintiff to establish that the employee promoted was not better qualified than the plaintiff. Johnson, 260 F.3d at 732, Ester admits pursuant to Local Rule 56.1 that the interview panel was "diverse in its makeup comprising one [sic] African American Male [sic], Anthony Orr, one white male, John Fabbrini, and one African American female, Joceyln Clark." (R SF 10). Ester admits pursuant to Local Rule 56. 1 that the panel was in fact created in part because of Ester's concerns about fairness. (R SF 11). Ester admits pursuant to Local Rule 56.1 that on January 24, 1994 he "sent a letter to VA management thanking them for convening the selection panel, and further stating that `this procedure can be the most honest and just that has been practiced in all of the years that I have worked here.'" (R SF 14). Ester denies this statement of fact, but he merely attempts to explain the contents of his letter and fails to support his denial, thereby admitting the fact that he sent such a letter. Ester admits pursuant to Local Rule 56.1 that the interview panel rated the qualifications of the three applicants and Ester admits the he received the lowest score of the three candidates. (RSF 13). Ester admits Pursuant to Local Rule 56.1 that he testified at his deposition that he had no experience in personnel or human resources matters or the criteria used for selection for the GS-12 supervisory computer operator position at the VA in 1994. Ester's self serving conclusion that he was the best qualified applicant is not sufficient to create a genuine issue of material fact. See Dunn, 260 F.3d at 787(stating that a plaintiff in showing how qualified he was for a position must "present more than his own, subjective self-appraisal to create a genuine ...


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