The opinion of the court was delivered by: ELAINE BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
This is an action for alleged age discrimination in employment.
Before the court is the defendants' joint motion for summary
judgment. For the reasons stated below, I grant the motion and
dismiss the complaint with prejudice.
Plaintiff John Clay, pro se, sues defendants Illinois
Department of Human Services (IDHS) and Ada S. McKinley Community
Services (Ada S. McKinley) under the Age Discrimination In
Employment Act (ADEA), 29 U.S.C. § 623 et seq. Mr. Clay alleges
in his complaint that the defendants discriminated against him on
February 9, 2004, February 26, 2004, and March 15, 2004, by not
providing him with the proper uniform for a work training course
and for not providing him with training. He further alleges that
when he complained about these matters, he was forbidden to
return [to the program] "while others, who were younger, were
trained & dressed properly." Standard of Review
Summary judgment is proper if the record shows that there is no
genuine issue as to any material fact, and that the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). On a motion for summary judgment both supporting and
opposing affidavits must be made on personal knowledge, must set
forth such facts as would be admissible in evidence, and must
show affirmatively that the affiant is competent to testify to
the matters stated therein. Fed.R.Civ.P. 56(e). In deciding a
motion for summary judgment, I must view all evidence in the
light most favorable to the nonmoving party, Valley Liquors,
Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.),
cert. denied, 484 U.S. 977 (1987), and must draw all reasonable
inferences in the non-movant's favor. Santiago v. Lane,
894 F.2d 218, 221 (7th Cir. 1990).
John Clay is an armed forces veteran and suffers from a
disability that is not specified in the record. He was born in
1942. In the summer of 2003, Mr. Clay enrolled in "Ticket to
Work", a program sponsored by the Social Security Administration
for Job seekers (Program). He contacted the IDHS office at 8840
Stony Island in Chicago, Illinois. Jennifer Perez, an IDHS
counselor, acted as liaison between Mr. Clay and various job
opportunities offered through the Program. Ms. Perez referred Mr. Clay to Ada S. McKinley for enrollment in a janitorial training
program. She also informed Mr. Clay about two requirements for
enrollment: he had to secure a janitor's uniform and submit
documentation showing that he took a physical examination prior
to enrollment. Mr. Clay alleges that Ms. Perez at one point told
him she would see if she could provide him with a voucher for
purchase of the uniform and thus misled him, but admits that he
received a document signed and dated by him on November 25, 2003
stating that it was his personal and financial responsibility to
purchase a uniform and wear it to training. He implies, but does
not offer any proof, that other trainees who did have the
required uniform when they reported for training in February
2004, were given their uniforms by the Program. He never complied
with the requirement that he obtain a uniform. As to the medical
examination requirement, Mr. Clay did not undergo a medical
examination or submit any medical documentation to the Program
except to sign a medical release form to be submitted to the
Veterans Administration.
On March 15, 2004, Ms. Shirley Huff, whom he identifies as the
program coordinator at Ada S. McKinley, told him he was
ineligible for the Program because he failed to obtain a uniform
and failed to submit the required medical documentation.
The alleged bases for his claim of age discrimination are: 1)
that on the occasions when he reported for training at the
Program, all of the other trainees were wearing janitorial uniforms and
appeared to be younger than him; and 2) that on an occasion when
Ms. Huff asked for volunteers to work at a job site, he
volunteered but was not chosen. He has not alleged any personal
knowledge as to the criteria for selection process for the
assignment or as to whether anyone was selected in his place. He
did not inquire as to the ages of the other trainees nor did he
see any documentation that revealed their ages. He never heard
anyone at IDHS or Ada S. McKinley indicate that his age motivated
any of their actions.
On March 25, 2004, Mr. Clay filed a charge against IDHR with
EEOC. He did not name Ada S. McKinley in the charge. He did not
refer to age in the charge. On April 21, 2004, the EEOC sent him
a document entitled Dismissal and Notice of Suit Rights. The EEOC
found that it was unable to conclude that the information
obtained establishes violations of the statutes.
Proof of Age Discrimination
In general, to prove discrimination in employment under either
Title VII, which covers discrimination by reason of race, color,
gender, or national origin, or under the ADEA, which covers only
discrimination by reason of age, a plaintiff must show that: 1)
plaintiff is a member of a protected class; 2) the employee was
performing his/her job satisfactorily; 3) the employee suffered
an adverse employment action; and 4) the defendant treated
similarly situated employees outside his/her class more
favorably. Smith v. City of Jackson, Miss., 125 S.Ct. 1536 (2005) (age
discrimination); O'Neal v. City of Chicago, 392 F.3d 909, 911
(7th Cir. 2004) (gender discrimination).
Proof of discrimination in employment may be by either the
direct method or the indirect method. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) (Title VII case). Under the indirect
method of proof (sometimes called the "disparate impact" method)
where there is no, or insufficient, direct evidence of
discrimination, other factors come into play. Once an employer
makes a prima facie case of deficiencies in the plaintiff's
performance, in order to withstand summary judgment, the
plaintiff must make a prima facie case that the employer's
claimed reasons for the adverse action are pretextual. O'Neal,
supra, 392 F.3d at 911. The issue then must be determined by the
trier of fact based upon a preponderance of the evidence. In
Smith, supra, a plurality of the Court held that the disparate
impact analysis formulated in McDonnell Douglas, supra, may be
applied to ADEA cases. Smith, 125 S.Ct. at 1544.
When defendants filed their motion for summary judgment they
supported it with, among other things, the statement of material
facts required by Local Rule 56.1 and the transcript of a
deposition given by Mr. Clay. They also served upon Mr. Clay the
notice to pro se litigant opposing motion for summary judgment, which Local Rule 56.2 requires. In ...