United States District Court, N.D. Illinois, Eastern Division
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
MEMORANDUM OPINION AND ORDER
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 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
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
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.
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 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 set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Miller, 168 F.3d at 312.
Under the direct method, King must present evidence of age
discrimination that "will prove the particular fact in question
without reliance on inferences or presumption." Pitasi v.
Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999) (internal
citations and quotations omitted). In this regard, King points to
a statement supposedly made in a 1992 meeting indicating that
officials at the Aurora facility did not like to promote older
personnel because "it did not want to promote an older person
within a year of retirement who would simply kick up his feet and
watch the clock tick." In his memorandum, King attributes this
statement to Ralph Davis, the manager of the facility. But in the
supporting evidence King cites a transcript of the
administrative hearing on his claim King attributed this
statement to Dennis Burke, a former manager of the facility.
See Hearing Tr. 23, 24. Because King has no evidence
attributing the statement to Davis, the statement does not
support his claim. Burke was not involved in the decision making
process at issue in this case, and thus his comments do not
constitute evidence of discrimination. See, e.g., Schuster v.
Lucent Techs., Inc., 327 F.3d 569, 576 (7th Cir. 2003). For this
reason, King's attempt to survive summary judgment by way of
direct evidence of discrimination falls short of the mark.
Under the indirect method of proof, King must first set forth a
prima facie case, which consists of four elements: he was at
least 40 years old; he applied for a promotion and met the
qualifications for the job; he was rejected; and someone
substantially younger got the promotion. See Rabinowitz v.
Pena, 89 F.3d 482, 486 (7th Cir. 1996). Defendant concedes that
King has met these requirements. The burden therefore shifts to
defendant to come forward with evidence of a legitimate
non-discriminatory reason for its actions, which defendant has
done by way of Bebble's affidavit. The burden therefore returns
to King to attempt to show that the FAA's explanation for its
actions is a pretext for discrimination. Id. at 487.
Defendant argues that King cannot show that the proffered
reason for denying him the promotion that he was less qualified
than those who were selected is a pretext for discrimination.
To survive summary judgment, King must offer evidence from which
a reasonable jury could conclude that this reason was pretextual,
that is, a lie or a phony reason. See, e.g., Baron v. City of
Highland Park, 195 F.3d 333, 341 (7th Cir. 1999). King can do
this either directly, with evidence suggesting that age
discrimination was the most likely motive for the termination, or
indirectly, by showing that Bebble's proffered reasons were not
believable. See, e.g., Wolf v. Buss (America) Inc.,
77 F.3d 914, 919 (7th Cir. 1996). The indirect method requires evidence
that Bebble's explanation has no basis in fact, was not the "real
reason" for her actions, or was insufficient to warrant denying
King the promotion. Baron, 195 F.3d at 341.
King contends that recommendations by supervisors were made
"willy nilly" and that Bebble never investigated the
recommendations to determine why applicants were or were not
recommended. But without evidence that someone in the decision
making chain acted with discriminatory animus (direct evidence) or gave a phony reason
for not recommending King (indirect evidence) evidence that
King does not offer he cannot attack Bebble's supposedly blind
reliance on the supervisory recommendations.
King claims that Davis was the person ultimately responsible
for the selection process. But the only evidence he offers to
support this claim is Bebble's testimony at the administrative
hearing that in general, someone in her position does not make
unilateral decisions without discussing them with the facility
manager, and her testimony that she probably told Davis who she
had selected. No evidence has been offered to suggest that Davis
had any role in the promotional decisions; Bebble flatly denied
in her testimony that he had any role, and King has offered no
evidence to refute this. But even if such evidence existed, it
would not help King's case absent evidence of discriminatory
animus on Davis' part, which is absent from King's submission.
King contends that the selection of Jarnecke was made to
undermine his discrimination claim. Even if this were true, it is
unclear how it would help King's case; the question is whether
King has evidence from which a reasonable jury could find that he
was denied the promotion based on his age, not whether someone
else of a similar age should have been promoted. In any event,
however, King has failed to support his contention about
Finally, King contends that Bebble has changed her story
regarding the decision making process. If true, that might
constitute evidence from which a jury could find Bebble's stated
reason pretextual. See Zaccagnini v. Chas. Levy Circulating
Co., 338 F.3d 672, 678 (7th Cir. 2003). In her affidavit, Bebble
states that a particular second-level supervisor came to her and offered Jarnecke's name as a substitute for the candidate who
withdrew, saying that he had discussed the matter with other
second-level supervisors and they concurred. King argues that
this contradicts Bebble's testimony at the administrative
hearing, but having reviewed the testimony submitted by King, the
Court sees no conflict of any substance.
For these reasons, defendant is entitled to summary judgment on
King's age discrimination claim.
B. Retaliation claim
On his retaliation claim, King can, once again, use either
direct or indirect evidence. To survive summary judgment using
the direct method, "the plaintiff must present direct evidence of
(1) a statutorily protected activity; (2) an adverse employment
action taken by the employer; and (3) a causal connection between
the two." Sitar v. Indiana Dep't of Transp., 344 F.3d 720, 728
(7th Cir. 2002). "Direct evidence is defined the same for
discrimination and retaliation claims that is, it can be an
admission of intentional discrimination or a `mosaic' of
circumstantial evidence that directly points to a discriminatory
intent." Davis v. Con-Way Transp. Cent. Express, Inc.,
368 F.3d 776, 786 (7th Cir. 2004).*fn1
King engaged in protected activity by filing his earlier
discrimination charge, and he suffered an adverse action when his
promotion bid was denied. Defendant argues that King has produced
no evidence of a causal link between the two; it points to
Bebble's uncontradicted statement that she had no knowledge of
King's earlier complaint. King argues that Davis was aware of the
earlier charge, but as discussed above, he has produced no
evidence that Davis was part of the decision making process concerning the promotions
(Bebble's statement that she advised Davis of her decisions does
not suggest he had a role in making those decisions). King
likewise contends that Becker, who recommended Jarnecke, was
aware of King's earlier charge, but again he has offered no
evidence to support this contention. In any event, the interval
of nearly four years between King's 1995 complaint and the 1999
promotion decision undermines any claim of a causal connection.
See, e.g., Goetzke v. Ferro Corp., 280 F.3d 766, 775 (7th Cir.
2002) (one-year lapse between filing for benefits and discharge
does not support an inference of retaliatory intent). Thus under
the direct method, King's claim fails.*fn2
To survive summary judgment based on the indirect method, King
must set forth a prima facie case, consisting of four elements:
he engaged in protected activity; he met the employer's
expectations for the job he had or hoped to get; he nonetheless
suffered adverse action; and he was treated less favorably than
at least one similarly situated employee who did not engage in
protected activity. Sitar, 344 F.3d at 728. It appears
undisputed that King has satisfied these requirements (the
alleged similarly situated person is Jarnecke). The defendant has
articulated a non-retaliatory reason for promoting Jarnecke as
well as the others rather than King, so we proceed directly to
the question of whether the defendant's stated reason is
pretextual. See Haywood v. Lucent Techs., 323 F.3d 524, 531
(7th Cir. 2003). In that regard, King's argument is the same as
the one the Court rejected with regard to his age discrimination
claim: that Davis must have played a role in the decision
process, and that Bebble is not to be believed. As stated above, King has offered no evidence from which a jury could find
in his favor on these points and no other evidence from which
pretext reasonably could be inferred.
For these reasons, defendant is entitled to summary judgment on
King's retaliation claim.
For the reasons stated above, the Court grants defendant's
motion for summary judgment [docket # 10-1]. The Clerk is
directed to enter judgment in favor of the defendant. The trial
date of January 3, 2005 is vacated.