The opinion of the court was delivered by: JOAN LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Edward Nowak ("Nowak") filed a nine-count, third
amended complaint against defendant International Truck and
Engine Corporation ("International") alleging that International
failed to promote Nowak to various positions because of his age
(63), in violation of the Age Discrimination in Employment Act,
29 U.S.C. §§ 621 et seq. ("ADEA"); his race (caucasian), in
violation of the Civil Rights Act of 1866 as amended,
42 U.S.C. § 1981 ("Section 1981"); and his sex (male), in violation of the
Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000e-1 et
seq. ("Title VII"). Nowak also alleges five counts of
retaliation based on his receipt of negative performance
evaluations (Count VI-VII); his inability to apply for a job
opening (Count VIII); and his subsequent termination (Count IX).
International has moved for summary judgment on all counts. This
court has jurisdiction under 29 U.S.C. § 1331,
29 U.S.C. § 626(b). 29 U.S.C. § 216(b), and 42 U.S.C. § 2000e-5(f)(3). For
the reasons set forth below, International's motion is granted in
part and denied in part. SUMMARY JUDGMENT STANDARDS
Summary judgment obviates the need for a trial where 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).
To determine whether any genuine fact exists, the court must
pierce the pleadings and assess the proof as presented in
depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c)
Advisory Committee's notes. The party seeking summary judgment
bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). In response, the non-moving party cannot rest on bare
pleadings alone but must use the evidentiary tools listed above
to designate specific material facts showing that there is a
genuine issue for trial. Id. at 324; Insolia v. Philip Morris
Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact
must be outcome determinative under the governing law. Insolia,
216 F.3d at 598-99. Although a bare contention that an issue of
fact exists is insufficient to create a factual dispute,
Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir.
2000), the court must construe all facts in a light most
favorable to the non-moving party as well as view all reasonable
inferences in that party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
Nowak, a white male born on September 15, 1942, began working
at International in 1967 as a trainee in the heat treat
department. (International's Local Rule 56.1 Statement of
Material Facts ¶ 3, hereinafter "International ¶ ___). Aside from
a two year stint with another company, Nowak held manufacturing
positions in the heat treat and machining and assembly
departments from 1968 to 1988. Id. ¶ 4. In 1988, Nowak
transferred to International's Human Resources Department, where he remained until his termination in
September 2004. Id. Prior to his termination, Nowak had
advanced to become a Senior Labor Specialist, a level 6 salary
grade position. Id. ¶ 5.
Throughout Nowak's tenure at International, Nowak aggressively
sought promotions. (Id. ¶ 17). In fact, from 1980 to 2004 Nowak
applied for up to 30 positions at International. (Id. ¶ 18). In
an effort to improve his prospects, Nowak obtained an MBA and
several certifications in human resources management and
participated in company-sponsored training opportunities.
(Nowak's Local Rule Statement of Additional Material Facts ¶ 4,
hereinafter "Nowak ¶ ___). Despite his improved qualifications,
Nowak applied for but was denied several level 7 positions during
2001. His failure to receive any of those promotions is the
subject of this lawsuit.
A. Human Resources Manager, Information Technology
Nowak nominated himself for the position of Human Resources
Manager, Information Technology in January 2001. (Nowak ¶ 23).
Kay Carroll ("Carroll"), the Human Resources Operations Director
posted the position, reviewed the applications, and selected
candidates for interviews. Id. ¶¶ 20-22. The person selected
for the position was to report to Carroll and to the Vice
President of Information Technology, Art Data. Id. ¶ 29. At
some point during the selection process, Data told Carroll that
"it would be nice to get some diversity in the department." Id.
While Nowak possessed the stated "must requirements" for the
position, a bachelor's degree and five years of "Human Resources
generalist experience" Carroll did not select him for an
interview. Id. ¶ 27. Carroll assessed Nowak's qualifications
and decided that he was not sufficiently qualified for the position.*fn1 (International
¶ 23). Carroll then contacted Nowak's supervisor, Mike Bednarz,
to inquire as to whether Bednarz had any information regarding
Nowak that would change her decision. (Nowak ¶ 31). Bednarz
responded that based on Carroll's description of what she was
looking for, Nowak did not have the experience for the position.
Id. Carroll selected Tanya Griffin, an African-American female
under the age of 40, for the position. (International ¶ 24).
Prior to arriving at International, Griffin had been a human
resources manager at 3M. Id.
Carroll notified Nowak of her decision and explained that she
did not believe that he possessed the interviewing or recruiting
skills necessary for the position. (Nowak ¶ 27). While Nowak
disagreed with her decision, Nowak acknowledges that he had only
limited experience recruiting hourly workers for International's
manufacturing departments and had no experience recruiting
information technology professionals.*fn2 Id. at ¶ 28.
Carroll suggested that in order to get the necessary experience
Nowak should consider making a lateral transfer into a different
position.*fn3 B. Business Team Leader, Machining and Production Assurance
Shortly after he was denied an interview for the Information
Technology position. Nowak nominated himself for the position of
Business Team Leader, Machining and Production Assurance, which
was posted in February 2001. (International ¶¶ 32, 37). The job
posting for the position stated "Qualifications that candidate
MUST possess in order to gain consideration for this position:
. . . BS/BA in business or technical area, 3 or more years
supervisory experience." (Nowak ¶ 34) (Emphasis in original).
Nowak possessed the "must" requirements for the position, but he
had not worked in manufacturing for over 12 years. (International
¶¶ 35, 41). In addition, Nowak had no experience leading a group
of professional engineers. Id. Though Nowak had supervised
skilled trades people during his many years in manufacturing, he
had not done so during his nearly 13 years in the human resources
department. Id. ¶ 41.
John Davis was selected for the position. Id. ¶ 44. He had
served previously as Plant Manager in Florence, Kentucky and as
Business Team Unit Leader in International's Huntsville. Alabama
facility. Id. Davis's previous positions, like the Business
Team Leader, Machining and Production Assurance position, were
level 7 salary grade positions. Id. Though Davis had held the
same position at a different International facility, he did not
satisfy all of the posted "must" requirements for the position.
(Nowak ¶ 36). Specifically, Davis did not possess a four-year
degree. Id. International's unwritten company policy, however,
provided that a position may be awarded to a candidate who does
not satisfy a "must" requirement on a job posting if the
candidate held the same position elsewhere.*fn4
(International ¶ 46). C. Human Resources Manager, Corporate Staff
Nowak also nominated himself for the position of Human
Resources Manager, Corporate Staff, which was posted from August
25, 2001 to September 4, 2001. (International ¶ 47). Carroll
again posted the position and participated in the interview of
the candidates. Carroll selected only two applicants for
interviews: Nowak and Cheryl Blair, an African-American female
who was over the age of 50. Id. ¶¶ 50, 51. Blair, the former
Manager for Truck Finance and Marketing, was selected for the
Carroll notified Nowak that he had not been awarded the
position. Id. ¶ 53. Carroll again encouraged Nowak to make a
lateral transfer to diversify his experience and better qualify
himself for a promotion within the Human Resources department.
Id. ¶ 54. Nowak rejected Carroll's suggestion and affirmed that
he was only interested in level 7 positions. Id.
Although Carroll stated that she selected Blair because she was
more qualified than Nowak, Heather Kos, a human resource
employee, told Nowak that Blair had been selected for the
position before Nowak interviewed for the position.
(International ¶ 52; Nowak ¶ 38). In addition, Nowak learned that
Nowak's interviewers did not have a copy of his self-nomination
form or resume at the time of his interview. (Nowak ¶ 39).
D. Business Team Leader, Engine Assembly and Materials
In December 2001, Nowak was considered for the position of
Business Team Leader, Engine Assembly and Materials.
(International ¶ 64). Bednarz, Nowak's supervisor, and Bob
Hilsen, Director of Continuous Quality for the Engine Group, were
responsible for selecting the applicants. Id. ¶ 65. The only
other candidates for the position were Marcellino Bomicino and Joe Meyer. Id. ¶ 65. Bednarz told Nowak that his previous
interview for the Business Team Leader, Machining and Production
Assurance position would apply to his bid for this position
because of the close proximity of the posting and the similarity
of the positions. Id. ¶ 67. None of the candidates were
re-interviewed for the position because they had been candidates
for the earlier position and the decision-makers did not believe
additional interviews were necessary. Id. Bomicino, a white
male over the age of 50, was selected for the position.
Bednarz notified Nowak that he had not been selected for the
interview. (Nowak ¶ 40). Bednarz told Nowak that the reason he
had not been awarded the position was because "there were not
enough old timers around to push for you." Id.
E. Nowak's Allegations of Discrimination
After being denied a fourth promotion in 2001, Nowak met with
Jeff Bowen, Director of Human Resources for the Engine Division,
to discuss job issues. Id. ¶ 41. On January 18, 2002. Nowak
sent an email to Bowen explaining that he believed he had been
discriminated against in the denial of the promotions. Id. ¶
42. Bowen referred Nowak's complaint to Lisa Morris,
International's Diversity and Equal Employment Opportunity
manager. Id. ¶ 43.
One week later, on January 25, 2002, Nowak filed his first
Charge of Discrimination with the United States Equal Employment
Opportunity Commission ("EEOC"). Nowak filed a second charge on
July 15, 2002. (International ¶ 93). On July 18, 2003, Nowak
filed the subject lawsuit, and on October 13, 2004, following his
termination from International, Nowak filed a third charge with
the EEOC. (International ¶ 94; Nowak ¶ 57).
F. Nowak's Job Performance
At the end of the calendar year, International conducted a
Total Performance Management review ("TPM"), which is its employee performance
appraisal. (International ¶ 13). The process involved a meeting
between the employee and their supervisor in which they discussed
the employee's performance in meeting the goals and objectives
that were assigned during the year. (Nowak ¶ 71).
In 2000 and 2001, Bednarz ranked Nowak's performance as "meets
expectations" or "generally exceeds expectations," giving Nowak
praise for his demonstration of leadership in managing the
"apprenticeship process" and "champion[ing] controllable
absenteeism" Id. ¶¶ 46, 49. In 2002, 2003, and 2004, however,
Nowak's performance was rated as "meets expectations with few
exceptions." (International ¶ 72). As a consequence, pursuant to
International policy Nowak was no longer permitted to nominate
himself for promotions. (Nowak ¶ 47). James Marzec denied Nowak
the opportunity to apply for the position of Human Resources
Director. International Finance Group. Id. Despite
International's policy, Marzec requested that an African-American
employee, who also had received a "meets expectations with few
exceptions" performance rating, be permitted to apply for a
promotion. Id. ¶¶ 82, 83.
In Nowak's 2002 TPM, Bednarz noted several deficiencies in
Nowak's performance. Specifically, Bednarz criticized Nowak for
failing to exhibit leadership with management and to develop a
comprehensive labor strategy and initiative action with regard to
outsourcing the housekeeping function. Id. ¶¶ 48, 51.
On November 26, 2003, Bednarz met with Nowak to review his 2003
TPM. (International ¶ 81). Among other criticisms, Bednarz
criticized Nowak for failing to meet two of his performance
objectives. Nowak admits that he failed to meet "Goal #1
Explore and implement with Karl Knecht opportunity to lead Engine
Group, Human Resources initiative such as TPM, LRP, etc. and #2 Develop quality recognition system for
manufacturing, as set forth on his 2003 TPM." Id. Nowak
explains, however, that extenuating circumstances prevented him
from accomplishing the first objective. Nowak provides no
explanation, however, for his failure to complete the latter
In March 2004, Marzec became Nowak's supervisor. The following
month, Marzec reviewed a performance issue letter with Nowak
dated April 21, 2004. Id. at ¶ 88. It was Marzec's policy to
give employees performance issue letters when he deemed their
performance to be "so egregious that immediate correction [was]
necessary." Id. at ¶ 86. In that letter, Marzec warned Nowak
that Nowak's failure to demonstrate the desire or initiative to
improve his performance could result in termination. Id. Marzec
again expressed his concerns with Nowak's performance in a June
21, 2004 letter. Id. ¶ 87. In that letter, Marzec outlined
Nowak's work tasks and goals, some of which were not identified
in Nowak's 2004 TPM, and warned that if Nowak failed to meet the
objectives he could be subject to progressive discipline up to
and including termination. (International ¶ 87; Nowak ¶ 79).
On September 14, 2004, Marzec terminated Nowak's employment. At
the time of his termination, Nowak had met some ...