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Antwerp v. City of Peoria

May 26, 2010

GENE VAN ANTWERP, PLAINTIFF,
v.
CITY OF PEORIA, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Joe Billy Mcdade Senior United States District Judge

OPINION and ORDER

Before the Court is the Motion for Summary Judgment filed by Defendant, City of Peoria, Illinois (Doc. 35). The Motion is GRANTED.

BACKGROUND

Plaintiff's Complaint alleges that he was discriminated against on account of his age and national origin in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §623(a)(1), and Title VII of the Civil Rights Act of 1984, 42 U.S.C. § 2000e-2(a)(1), respectively. Plaintiff further alleges that he was subjected to reverse discrimination.

The following facts are undisputed. Plaintiff is employed by the City of Peoria as a patrol officer and began his employment in 1988 (Defendant's Statement of Undisputed Material Fact (DSUMF) 1). On September 6, 2006, two positions for technicians in the Crime Scene Unit opened and Plaintiff applied for the positions (DSUMF 2, 3). There were nine applicants for the positions but only six applicants were interviewed, including Plaintiff (DSUMF 4, 5). The two officers considered best qualified for the positions were Officers Paul Tuttle and Tim Wong -- Officer Tuttle was selected for the first position (DSUMF 24).*fn1 The second position was not filled at that time for reasons that the parties dispute.

The second position was subsequently re-posted in 2007 (DSUMF 12). Plaintiff and Officer Wong were the only applicants for the position (DSUMF 22). They were both interviewed for the position (DSUMF 23); Officer Wong was selected in March, 2007.

Neither party has presented the additional relevant facts in a logical or concise manner or in a manner that would aid the Court in determining this matter. A clear understanding of the events giving rise to the Complaint is also hampered by Defendant's inexplicable failure to file a reply brief and Plaintiff's sprinkling of material facts in his argument section instead of in a complete statement of additional material facts. While the Court is loath to do the parties' job for them, a full understanding and resolution of the matter cannot be made without drawing relevant facts from the record. As such, the Court has drawn the following facts from the attachments to the Motion and Response (which are not lengthy).

The original job posting is dated September 6, 2006 and is labeled "Information Bulletin No. 216-06" (hereinafter Bulletin 216-06) (Doc. 35-1, p. 2)*fn2 . It states that two openings were "anticipated" in the Crime Scene Unit, that one would be filled immediately, and that the other would be filled on January 7, 2007 (Id.). Bulletin 216-06 noted that Captain Philip Korem, Lieutenant Vince Weiland, Sergeant Randy Pollard, and a "benevolent representative" (who would observe) would be present at the interviews (Id. at p. 3). The interviews took place on September 25, 2006 and, on September 28, 2006, Lieutenant Weiland and Sergeant Pollard signed a memorandum directed at Captain Korem indicating their recommendations as to the two positions (Doc. 35-3, p. 17). They recommended that the first position be awarded to Officer Tuttle (Id.). There is no dispute that Officer Tuttle was given the position. With respect to the second position, they believed that Officer Wong was most qualified; however, they recommended that the position be given to Plaintiff because Officer Wong was 26 days short of the years-in-service requirement (Id.). It is unclear when Plaintiff was offered the second position. However, a memorandum dated September 27, 2006, and labeled "Personnel Order No. 196-06", states that Officer Tuttle and Plaintiff would begin their new assignments on October 1, 2006 and January 7, 2007, respectively (Doc. 1, p. 9). A subsequent memorandum dated November 7, 2006 from Captain Korem to "all personnel" states that Plaintiff would not be transferring to the Crime Scene Unit "as stated previously in Personnel Order 196-06" (Doc. 35-1, p. 4).*fn3 There is no evidence indicating that the second position was offered to another officer at that time.

It appears that the second position was re-posted in another "Information Bulletin" numbered 057-07 ("Bulletin 057-07") (Doc. 32-7, p. 1). Interviews (with the same persons listed above) were held on March 13, 2007 (Doc. 32-3). It is undisputed that Officer Wong was awarded that position.

Defendant contends that the second position advertised in September, 2006 was an "anticipated" position because it depended on the promotion of (then) Officer Kenneth Snow, who worked in the Crime Scene Unit, that was itself dependent on the retirement of Sergeant Melvin Little. To support this fact, Defendant points to the deposition of Captain Korem who testified that the second position in the Crime Scene Unit would open when Officer Snow would be promoted to Sergeant when Sergeant Little retired (Philip R. Korem Deposition pp. 21-22). In particular, Captain Korem testified that:

Q: And the second position was indicated on a specific date?

A: Yes.

Q: And why was that?

A: Because we anticipated that that's when the opening would occur in the lab or in the crime scene unit division. That's when it was anticipated.

Q: That would be Sergeant Snow?

A: Yes.

Q: And why did you anticipate the opening was going to occur on Sunday, January 7, 2007, as a result of the actions of Sergeant Snow?

A: Well, in fact, we anticipated that Sergeant Snow would be getting promoted; and if that occurred, then he would be transferred out of the lab, which ...


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