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December 19, 2005.

EDWARD NOWAK, Plaintiff,
INTERNATIONAL TRUCK AND ENGINE CORPORATION, a Delaware corporation doing business in Illinois Defendant.

The opinion of the court was delivered by: JOAN LEFKOW, District Judge


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 position. Id.

  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 objective. Id.

  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 ...

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