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CADY v. MISS PAIGE

April 29, 2004.

DAVY CADY, Plaintiff,
v.
MISS PAIGE, LTD., an Illinois corporation, Defendant



The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge

MEMORANDUM, OPINION AND ORDER

This matter is before the Court on the parties' cross-motions for summary judgment. Plaintiff Davy Cady has filed a pro se complaint against defendant Miss Paige Ltd. ("Miss Paige") seeking to hold defendant liable for a violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff contends that Miss Paige's policy of requiring job applicants to disclose their high school attendance and/or graduation dates violates his rights under the ADEA. Plaintiff also has filed a motion for Rule 10(b) and 11(b) sanctions against Miss Paige. For the following reasons, we grant defendant's motion for summary judgment and deny plaintiffs motion for summary judgment. Plaintiff's motion for sanctions also is denied

BACKGROUND

  The following undisputed facts are taken from Miss Paige's Local Rule 56.1 Statement of Material Facts. Miss Paige is an employment agency that provides job placement services to companies and organizations throughout the Chicago metropolitan area. Beginning in the mid-1990's, Miss Paige limited its placement services to those clients who predominately employ individuals over 18 years of age or who possess a high school diploma or GED equivalent. Miss Paige limited its placement services to take advantage of a 1995 revision to Illinois law, which exempted employer paid fee agencies from state regulation if the agencies only placed individuals over 18 years of age or those who possess a high school diploma or GED equivalent.

  As part of is placement services, Miss Paige represents to its employer-clients that it will verify an applicant's educational, military and employment history in part because the majority of Miss Paige's clients require that their job applicants possess at least a high school diploma or GED equivalent. To accomplish this verification, Miss Paige uses a two-part employment application form which consists of the application itself and a second part which is a document entitled "Notice Regarding Background Investigation." As part of the job application, applicants are requested to disclose their high school attendance dates. Miss Paige requests this information to facilitate the process of verifying an applicant's educational background. Applicants also are expected to completely fill out the application form before Miss Paige will interview the applicant. Miss Paige has an established policy that its hiring representatives are not to proceed with an interview if an applicant fails to complete significant portions of the application form.

  In January 2001, Miss Paige was engaged by FTD to fill customer service positions for the upcoming Valentine's Day holiday period. Miss Paige advertised in the Chicago Tribune and other newspapers for these temporary positions. The advertisement instructed interested persons to contact Miss Paige's Lisle office for additional information. Sometime in January 2001, plaintiff David Cady contacted Miss Paige to inquire about the advertisement. After inquiring about the employment opportunity with FTD, plaintiff was invited to visit the Lisle office to complete a job application for the temporary position. On or about January 17, 2001, Cady visited Miss Paige's Lisle office to fill out a job application for a temporary position with FTD. When filling out Miss Paige's standard application form, plaintiff refused to list his high school attendance dates. A branch manager at Miss Paige explained to plaintiff that all applicants are expected to provide their high school attendance dates on the application form and that Miss Paige requires this information in order to process the application. Plaintiff also did not provide his birth date, driver's license number or a complete work history and did not answer certain questions pertaining to his conviction history and legal ability to work in the United States. Based on the events of January 17, 2001, plaintiff stated that he intended to bring legal action against Miss Paige. However, these events are not part of the current lawsuit.

  In February 2001, Miss Paige published an advertisement in the Chicago Tribune for a professional services assistant position. On or about February 12, 2001, plaintiff responded to the advertisement by contacting Miss Paige's Skokie office and spoke with a personnel consultant at Miss Paige. Plaintiff explained his qualifications and inquired whether he might be qualified for the position. Plaintiff was told that he might be qualified for the position and was invited to visit Miss Paige's Skokie office to complete an application. Plaintiff then asked if he would be required to disclose his high school graduation date in order to process his application. The Miss Paige consultant informed plaintiff that he would have to disclose his high school graduation date on the application, and a Miss Paige supervisor later verified that it was company policy to require high school graduation dates from applicants. There is no evidence that Miss Paige ever knew plaintiff's age at that time. Plaintiff never applied for the professional services assistant position that was published in the February 2001 newspaper advertisement. In April 2001, Miss Paige published an advertisement in the Chicago Tribune for an administrative office assistant position. On or about April 3, 2001, plaintiff responded to the advertisement by contacting Miss Paige's Oak Brook office and spoke with a branch manager. Plaintiff explained his qualifications and inquired whether he might be qualified for the position. Plaintiff was told that he might be qualified for the position and was invited to visit Miss Paige's Oak Brook office to complete an application. Plaintiff then asked if Miss Paige had a policy of requiring an applicant to disclose his high school graduation date in order to process the application regardless of whether the applicant could provide a graduation date from an institution of higher learning. The Miss Paige branch manager informed plaintiff that he would have to disclose his high school graduation date on the application, and a Miss Paige supervisor later verified that it was company policy to require high school graduation dates from applicants. There is no evidence that Miss Paige ever knew plaintiff's age at that time. Plaintiff never applied for the administrative office assistant position that was published in the April 2001 newspaper advertisement.

  In August 2001, Miss Paige published an advertisement in the Suburban Life for an office assistant position. On or about August 8, 2001, plaintiff responded to the advertisement by contacting Miss Paige's Oak Brook office and spoke with a staffing manager. Plaintiff explained his qualifications and inquired whether he might be qualified for the position. Plaintiff was told that he might be qualified for the position and was invited to visit Miss Paige's Oak Brook office to complete an application. Plaintiff then asked if Miss Paige had a policy of requiring an applicant to disclose his high school graduation date in order to process the application regardless of whether the applicant could provide a graduation date from an institution of higher learning. The Miss Paige staffing manager informed plaintiff that he would have to disclose his high school graduation date on the application, and a Miss Paige supervisor later verified that it was company policy to require high school graduation dates from applicants. There is no evidence that Miss Paige ever knew plaintiff's age at that time. Plaintiff never applied for the office assistant position that was published in the August 2001 newspaper advertisement.

  Later in August 2001, Miss Paige published an advertisement in the Chicago Tribune for an general office assistant position. On or about August 20, 2001, plaintiff responded to the advertisement by contacting Miss Paige's Rolling Meadow office and spoke with a permanent placement manager. Plaintiff explained his qualifications and inquired whether he might be qualified for the position. Plaintiff was told that he might be qualified for the position and was invited to visit Miss Paige's Rolling Meadow office to complete an application. Plaintiff then asked if Miss Paige had a policy of requiring an applicant to disclose his high school graduation date in order to process the application regardless of whether the applicant could provide a graduation date from an institution of higher learning. The Miss Paige permanent placement manager informed plaintiff that he would have to disclose his high school graduation date on the application, and a Miss Paige supervisor later verified that it was company policy to require high school graduation dates from applicants. There is no evidence that Miss Paige ever knew plaintiff's age at that time. Plaintiff never applied for the general office assistant position that was published in the August 2001 newspaper advertisement.

  Thereafter on January 19, 2002, plaintiff filed a complaint with the Illinois Department of Human Rights ("IDHR") against Paige Personnel Services alleging that he was not hired in January 2001 because of his age. Plaintiff subsequently withdrew his complaint with the IDHR. On November 2, 2001, plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") against Paige Personnel Services alleging that he had been discriminated against based on the company's policy of requiring him to provide his high school graduation date on a job application despite his willingness to offer a graduation date associated with an advanced degree. On April 8, 2002, the EEOC dismissed plaintiff's complaint and provided him with a notice of his rights.

  Plaintiff then filed this lawsuit on July 10, 2003 against Miss Paige, Ltd. and four individual defendants alleging discrimination on the basis of age in violation of the ADEA, negligent infliction of emotional distress and intentional infliction of emotional distress. In his complaint, plaintiff alleges, among other things, that he was discouraged and deterred from applying for four positions that were advertised by Miss Paige based on the company's policy of requiring job applicants to disclose their high school attendance dates and/or graduation dates in violation of the ADEA. In an Memorandum, Opinion and Order dated March 31, 2002, this Court dismissed plaintiff's claims for negligent infliction of emotional distress and intentional infliction of emotional distress in their entirety against all of the defendants and dismissed the claim for discrimination against the individual defendants.

  DISCUSSION

  A. Summary Judgment Standard

  Under Federal Rule of Civil Procedure 56, summary judgment may only be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). We apply this standard with particular care in employment discrimination cases in which intent and credibility are critical. Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997). Nevertheless, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a ...


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