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Tye v. Chertoff

September 29, 2006


The opinion of the court was delivered by: Judge Virginia M. Kendall


Defendant Michael Chertoff*fn1 , Secretary, Department of Homeland Security ("Defendant"), moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment as to plaintiff Ronald Tye's ("Tye" or "Plaintiff") one-count complaint alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. ("ADEA"). Because Plaintiff has raised no genuine issue of material fact suggesting that Defendant's reasons for not promoting Plaintiff were pretextual, Defendant's motion is granted.

Undisputed Facts

The facts in this case are uncontested, unless specifically noted.*fn2 Tye was born on July 25, 1949 and began working for the federal government in 1975. Compl. at ¶ 4. In 1987, Tye became a Special Agent, GS-13 with the Department of Treasury, U.S. Customs Service in Chicago, Illinois, which is now part of the Department of Homeland Security ("Department"). Def.'s 56.1 Stmt. ¶ 2. Tye remained in that position at all times relevant to this case. Id.

In February 2000, at the age of fifty, Tye applied to be a Group Supervisor, GS-14, within the U.S. Customs Service. Def.'s 56.1 Stmt. at ¶4. The application process for open group supervisor positions was governed by the Customs Automated Application Processing System ("CAAPS"). Id. at ¶ 6. Under CAAPS, each applicant was assigned a numerical score based on the information in their application. Id. at ¶ 7. Then, as group supervisor positions became available within the U.S. Customs Service, the applicants for those positions with the ten highest numerical scores were placed on a "competitive certificate" or "best-qualified" or "BQ" list. Id. at ¶¶ 8-9, Tye Dep. at 23-24. Defendant deemed each applicant on the BQ list for a specific position qualified for that position, and Tye admitted that the supervisor was free to choose any of the ten persons on the BQ list. Def.'s 56.1 Stmt. at ¶ 9, Tye Dep. at 27-28. The BQ list for each open position was forwarded to the person in charge of filling the vacancy (the "Selecting Officer"). Id. at ¶ 9. Under CAAPS, the Selecting Officer was free to choose any one of the ten individuals listed on the BQ list to fill the corresponding vacant position. Id. at ¶9.

In March 2000, Elissa A. Brown ("Brown") became the Special Agent in Charge ("SAC") for the Office of Investigations in Chicago. Id. at ¶ 11. For purposes of this motion, both parties agree that Brown was the selecting officer tasked with choosing the people to fill the two vacant group supervisor positions at issue in this case. Prior to being named SAC for the Office of Investigations in Chicago, Brown worked at the U.S. Customs Service Headquarters in Washington, D.C. Id. at ¶ 11. Tye never worked at the Headquarters in D.C. Id. at ¶ 11. Tye also never worked with Brown and Brown never had any supervisory authority over him. Id. at ¶ 13.

Between the time Brown became SAC and when the promotions at issue in this case occurred, Brown and Tye only had one brief interaction. Id. at ¶ 15. That interaction occurred in Brown's office when Tye showed her a book of his professional accomplishments and expressed an interest in becoming a supervisor if the opportunity arose. Id. at ¶ 15.

In April 2000, Tye learned that his application for a group supervisor position generated a numerical score of 243 under the CAAPS process. Id. at ¶ 16. Two months later, Defendant created a BQ list for two vacant group supervisor positions. The first position was in the Financial Investigations Division in Chicago ("Chicago group supervisor position") and the second position was at O'Hare International Airport ("O'Hare group supervisor position"). Id. at ¶ 17. Based on his numerical score, Defendant ranked Tye second on the BQ list for the Chicago group supervisor position and first on the BQ list for the O'Hare group supervisor position. Id. at ¶ 17. U.S. Customs Agent Lindsey LaJoie, who was promoted to the Chicago group supervisor position, ranked fifth on the BQ list for that position with a numerical score of 232. Id. at ¶¶ 17, 20. U.S. Customs Agent Richard Fahy, who was promoted to the O'Hare group supervisor position, ranked seventh on the BQ list for that position with a numerical score of 228. Id. at ¶¶ 17, 20.

As SAC, Brown was tasked with recommending one candidate from each applicable BQ list to fill the vacant supervisory positions in Chicago and at O'Hare. Id. at ¶ 18. Brown recommended LaJoie and Fahy for the Chicago and O'Hare positions, respectively. Id. at ¶ 18. Brown forwarded her recommendations to John Varrone, who made the ultimate promotion decision. Id. at ¶ 19.*fn3 Although Brown did not know the applicants' exact ages, she knew that Tye was older than LaJoie and Fahy. Id. at ¶ 21. Brown personally worked with LaJoie and Fahy prior to recommending them for the disputed supervisory positions and both had previous experience working at the Department's headquarters in Washington D.C. Id. at ¶¶ 24-25.


To succeed on his motion for summary judgment, Defendant must show that the pleadings, depositions, answers to interrogatories, and admissions on file, together with any admissible affidavits do not create a genuine issue of material fact and that Defendant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In considering this motion, the Court must construe all facts in the light most favorable to Tye and must view all reasonable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court, however, will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. Of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record, an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.").

To establish an age discrimination claim under the ADEA, a plaintiff must show that he would have received the promotion "but for" his employer's intentional age discrimination. 29 U.S.C. § 623; Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003). Tye concedes that he does not have any direct proof to support his discrimination claim and instead attempts to prove his claim using the indirect method recognized in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Under the indirect method, in order to defeat Defendant's motion for summary judgment, Tye must establish a prima facie case of age discrimination. Cerutti, 349 F.3d at 1060. To meet this burden in the failure-to-promote context, he must show that: (1) he was a member of a protected class; (2) he applied for and was qualified for a promotion; (3) he was rejected for the promotion; and (4) a similarly situated employee outside of his protected class received the promotion. Rabinovitz v. Pena, 89 F.3d 482, 486 (7th Cir. 1996). If Tye establishes a prima facie case of discrimination, then the burden shifts to Defendant to state a legitimate, non-discriminatory reason for his actions, after which Tye must show that those reasons are merely a pretext for a discriminatory reason. Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 321 (7th Cir. 2003).

A. Tye's Prima Facie Case

Defendant concedes that Tye has established the first three elements of his prima facie case. However, Defendant argues that Tye was not similarly situated to LaJoie and Fahy because in contrast to Tye, both had prior working relationships with Brown and Brown was familiar with their career experience and proven performance. Def.'s Mem. at 9. Tye has met the burden of showing a prima facie case of discrimination as he was similarly situated to the younger employees who received the promotions. Tye was on the BQ list for both the Chicago and O'Hare group supervisor positions, and Defendant concedes that each person placed on the BQ list for a specific position is considered to be qualified for that position. Def. 56.1 Stmt. at ¶ 9. The BQ list for each position contained the names of the 10 applicants with the highest scores from the CAAPS, and the selecting official could choose any of those ten persons. Id. at ¶ 7, 9. Accordingly, although Tye may not have possessed exactly the same qualities as the two employees who received the position, Tye was found to be ...

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