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August 13, 2004.

DWIGHT A. KING, Plaintiff,
NORMAN MINETA, Secretary, United States Department of Transportation, Defendant.

The opinion of the court was delivered by: MATHEW KENNELLY, District Judge


Dwight A. King has sued the Secretary of Transportation under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 623(a) & (d); id. § 626(b), claiming that his employer, the Federal Aviation Administration, failed to promote him because of his age and in retaliation for a previous charge of age discrimination that he had filed. The Secretary has moved for summary judgment. For the reasons stated below, the Court grants the motion.


  The FAA hired King in 1968 at the Chicago Air Route Traffic Control Center in Aurora, Illinois. In 1995, King bid for a supervisory position, was denied, and made an administrative charge of age discrimination. In January 1997, the agency concluded that no discrimination had occurred.

  In 1998, when King was 53, he bid for promotion to Supervisory Air Traffic Control Specialist Operations Supervisor. Forty-three applicants applied for the positions. Thirty-five, including King, made the best-qualified list. The applicants were rated and ranked by a panel, and each of them was asked the same questions in an oral interview.

  According to the FAA, Dianne Bebble, an Assistant Air Traffic Manger who had been assigned to the Aurora facility in 1997, made the final selections for promotion in early 1999. Bebble has stated by way of affidavit that she used the best-qualified list, supporting documents, the results of the interviews, supervisory recommendations, and her personal knowledge of the candidates. First and second-level supervisors at the Chicago Center provided Bebble with recommendations for particular candidates.

  Bebble says she was looking for candidates who were familiar with the Chicago operation and had exhibited the potential to be strong supervisors through qualities such as leadership and people skills. She selected the candidates she believed had the highest potential to be effective supervisors. She wanted people who had the ability to confront situations when necessary; were well respected by their peers and upper management; had a willingness to learn and improve, the ability to lead, the ability to recognize and address poor performance; and supported FAA programs and policies.

  With regard to King, Bebble stated in her affidavit that:
Mr. King's overall interview was "good." As with Mr. Meyers [another candidate], his response to the Traffic Management question was only OK, despite the fact his position at the time was in Traffic Management. However, where Mr. Meyers addressed supervisor interaction with Traffic Management, Mr. King did not. This was part of the question. Mr. King received 2 recommendations (the same as Mr. Mercker [another candidate] and less than all other selectees). There were two written justifications for the recommendations. They commented on Mr. King's experience, maturity and ability to deal with people. No mention was made of how he previously performed as a temporary supervisor. Mr. King was not recommended by the supervisors in Traffic Management for whom he worked.
Bebble Affid. ¶ 21. Nine candidates were selected for promotion. These included both Mercker and Meyers, who are referenced in the passage from Bebble's affidavit quoted above, but not King. According to defendant, though King was a qualified candidate who had a good interview and considerable experience, based on the combination of the various factors considered by Bebble, she made the judgment that "other candidates were better qualified. See id. ¶¶ 11-21.

  The ages of the nine persons originally selected for promotion ranged from 35 to 45. After one selected candidate declined the promotion, a replacement candidate, Dennis Jarnecke, age 54, was selected in his place. King points out that eight of the nine persons originally selected were more than ten years younger than he, relying on this as evidence that the agency discriminated against him based on his age. King contends that the selection of Jarnecke as a replacement was a sham to avoid a possible claim by King.

  King also contends the FAA denied him the promotion in retaliation for filing the 1995 discrimination charge. He says that after he filed that charge, his subsequent scores on promotional bids dropped from a perfect 36 out of 36 to scores as low as 7 out of 36. King does not argue, however, that the drop in scores prevented him from being promoted in 1999. Rather, he contends that persons who were aware of his prior discrimination charge were involved in the selection process and determined not to promote him due to that prior charge.


  Under Rule 56(c), a court may grant summary judgment only if there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is considered "genuine" if a reasonable trier of fact could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a genuine issue of material fact exists, we must view the facts in a light favorable to King, the non-moving party in this case, drawing reasonable inferences in his favor. Celotex, 477 U.S. at 322.

  A. Age discrimination claim

  To succeed on a claim of age discrimination, King must show that the adverse employment action taken against him would not have occurred but for his age. E.g., Miller v. Borden, 168 F.3d 308, 312 (7th Cir. 1999). King can meet his burden either with direct evidence of discrimination or by proceeding under the indirect burden-shifting method ...

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