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McKay v. Office of the Illinois State Fire Marshal

October 6, 2009

ROBERT R. MCKAY, PLAINTIFF,
v.
OFFICE OF THE ILLINOIS STATE FIRE MARSHAL AND DAVID FOREMAN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Robert R. McKay ("McKay"), an African American, filed this lawsuit alleging race discrimination against the Office of the Illinois State Fire Marshal ("OSFM") and David Foreman ("Foreman"), individually, and in his official capacity as Illinois State Fire Marshal, under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000 et seq.), 42 U.S.C. § 1981, and 42 U.S.C. § 1983. Currently, before the court is OSFM and Foreman's Motion for Summary Judgment [28], which is presented jointly by the defendants and asserts that McKay cannot establish a prima facie case for any of his claims based on the evidence in the record. For the reasons stated below, the defendants' motion for summary judgment is granted.

BACKGROUND

Illinois state agencies may fill vacant employment positions in several ways including promotion of a certified employee, reinstatement of a former certified employee, and appointment from the Open Competitive Eligible List of candidates maintained by Illinois's Department of Central Management Services ("CMS"). (Defs.' Stmt. Undisputed Facts ¶ 29.) State agencies can only contact applicants who are not current or former certified state employees through the Open Competitive Eligible List. (Id. ¶ 41.)

The Open Competitive Eligible List is compiled of prospective employees who submitted an application to CMS and received a letter grade within a certain job classification. (Id. ¶¶ 32--33.) After CMS receives an application, an assessment analyst reviews and evaluates it against established criteria to determine the applicant's level of qualifications. (Id. ¶ 35.) Based on that evaluation, CMS assigns the applicant a letter grade, which is then mailed to the applicant. (Id. ¶¶ 35-36.) After the notice of the grade has been mailed, CMS takes no further actions until a state agency requests the Open Competitive Eligible List. (Id. ¶36.)

In 2007, OSFM created the position of Northern Region Arson Division Manager, PSA, Opt. 1 ("Northern Division Manager") to assist OSFM's Director of Arson Investigations Division, Richard Crum ("Crum").(Defs.' Stmt. Undisputed Facts ¶ 28.) Among his duties as Division Director, Crum supervised clerical, supervisory, and investigative field staff, and he was responsible for the day-to-day operations of the division. (Id. ¶ 5.)

Stephanie Kirk ("Kirk") served as the Public Service Administrator, Human Resource Manager for OSMF. (Defs.' Stmt. Undisputed Facts ¶ 4.) Kirk was responsible for writing and reviewing job descriptions (id.), including the job description posting for the Northern Division Manager position (id. ¶ 37).

McKay submitted his application for the Northern Division Manager position to the CMS office in Chicago in April 2007. (Pl.'s Stmt. Additional Facts ¶ 27.) He did not submit an application directly to OSFM (Pl.'s Res. Defs.' Stmt. Undisputed Facts ¶ 64), and OSFM never requested the Open Competitive Eligible List from CMS for the Northern Division Manager position (Pl.'s Res. Defs.' Stmt. Undisputed Facts ¶ 67).

Crum and Kirk, along with Dave DeFraties ("DeFraties"), Foreman's Chief of Staff (id. ¶ 35), reviewed the applications submitted to OSFM (Pl.'s Res. Defs.' Stmt. Undisputed Facts ¶ 45; id. at Ex. D at 14--15), and Crum and Kirk determined which applicants were qualified for an interview (Pl.'s Stmt. Additional Facts ¶ 42). Kirk and Crum never saw McKay's application while they were reviewing applications for the Northern Division Manager position. (Defs.' Stmt. Undisputed Facts ¶¶ 71--72.)

Kirk and Crum determined that two applicants, Luke Hartigan ("Hartigan"), a former certified state employee (id. ¶ 54), and Steven Sullivan ("Sullivan"), qualified for an interview (id. ¶ 45). Sullivan declined the opportunity to interview, but Hartigan accepted and was interviewed on May 24, 2007. (Id. ¶ 46.) Crum and Kenneth Wood ("Wood"), Division Manager of Technical Services (id. ¶ 6), conducted Hartigan's interview (id. ¶ 47). Although Wood was not involved in reviewing the applications (Pl.'s Res. Defs.' Stmt. Undisputed Facts ¶ 45), Crum asked him to participate in the interview because Wood was a "RUTAN certified interviewer,"*fn1 and Wood worked in the Chicago office where Hartigan's interview was held (id. ¶ 47). Wood took notes during the interview and provided scores for Hartigan on a scoring sheet. (Id. ¶ 48.) Overall, Wood and Crum were impressed with Hartigan's interview (id. ¶¶ 49--50), and Crum recommended that Hartigan be hired for the Northern Division Manager position (id. ¶ 53). Foreman approved the selection of Hartigan for the Northern Division Manager position as a "formality." (Defs.' Stmt. Undisputed Facts ¶ 74; id. at Ex. F at 9.)

Because an Illinois state agency must receive qualification approval from CMS before it can hire a current or former state employee (id. ¶ 56), OSFM sent CMS a "CMS 96-pre-qual form" seeking qualification approval for Hartigan for the Northern Division Manager position (id. ¶ 61). CMS ultimately approved Hartigans's qualifications (id. ¶ 62), and Hartigan began working for OSFM on July 1, 2007 (id. ¶ 63).

As stated earlier, McKay, an African American, filed this lawsuit against defendants OSFM and Foreman alleging that he was not hired for the Northern Division Manager position due to his race. (Am. Cmplt. ¶¶ 9--18.) McKay has asserted three claims: 1) a race discrimination claim under Title VII against OSFM; 2) a § 1981 discrimination claim against Foreman; and 3) a § 1983 claim alleging a violation of his equal protection under the Fourteenth Amendment against Foreman.

LEGAL STANDARD

Summary judgment can be granted only when the record shows "that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, this court must consider the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Woodruff v. Mason, 542 F.3d 545, 550 (7th Cir. 2008). Once a properly supported motion for summary judgment is made, the nonmoving party cannot rest on its pleadings but must affirmatively demonstrate by specific factual evidence that there is a genuine issue of material fact requiring trial. ...


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