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Harms v. Astrue

November 2, 2010

STEVEN HARMS, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION DEFENDANT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Steven Harms has filed a four-count amended complaint against his former employer, the Social Security Administration, alleging retaliation and discrimination based on race, gender, and age. Counts I, II, and IV, alleging that plaintiff was not selected for promotions because of his race and gender and out of retaliation, were brought under Title VII of the Civil Rights Act,

42 U.S.C. § 2000e, et seq. Count III, alleging that plaintiff was not selected for promotions because of his age, was brought under the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621, et seq. Defendant has filed a motion for summary judgment on all counts. For the reasons discussed below, the motion for summary judgment is granted in part and denied in part.

FACTS

In considering a motion for summary judgment, the court draws "all reasonable inferences from undisputed facts in favor of the nonmoving party and [views] the disputed evidence in the light most favorable to the nonmoving party." Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). The following facts are taken from the complaint and from the parties' statements of facts and accompanying exhibits as to which there is no material dispute.

Plaintiff is a white male born on June 6, 1949.*fn1 He was hired as a benefits authorizer by defendant in 1973, and he has since held several different positions. From 1988 to 1998, he was an assistant module manager. He was a management support specialist from 1998 until he was promoted to a temporary module manager position in 2009. Plaintiff has held two positions as a temporary manager: 120 days as module manager and one year as chief of the debt management section.

Plaintiff's claims relate to eleven non-selections: Vacancy DH-07-059 (David Turner--50 year old African American male; Bertha Wyatt--58 year old African American female); Vacancy DH-07-314-153709 (Patricia Duke Smith--over 40 year old African American female); Vacancy DH-07-314-153810 (Glenda Finner--51 year old African American female; Gwendolyn Robinson--54 year old African American female); Vacancy SI-166020-08-DH-07-467 (Glenda Finner; Beatrice Sziler--52 year old Hispanic female; Rosaura Velez--35 year old Hispanic female); Vacancy SI-230568-09-IVOL-DS-087 (Yvonne Veal--54 year old African American female); Vacancy DH-090 (Mary Herring-Pettis--53 year old African American female); and Vacancy SI-246719-09-IVOL-DS-206 (Mary Herring-Pettis).

There were five selecting officials: Sandra Bennett (58 year old African American female); Sheila Sepanski (68 year old Caucasian female); Mark Rekoske (57 year old Caucasian male); Margaret Sletten (44 year old Caucasian female); and Barbara Gilbert (54 year old African American female). Bennett made one selection, Sepanski made three, Rekoske made two, Sletten made two, and Gilbert made three.

DISCUSSION

Legal Standard

Summary judgment is appropriate if the evidence demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56©; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Village Church v. Village of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits that demonstrate an absence of material fact. See Celotex, 477 U.S. at 323 (1986). The burden then shifts to the nonmoving party to "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).

When reviewing a summary judgment motion, the court must read the facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court's role "is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994).

Analysis Title VII (Counts I, II, and IV)

To prevail on a discrimination claim, plaintiff may meet his burden of proof by establishing intentional discrimination through direct or circumstantial evidence of discriminatory intent, Senner v. North-central Technical College, 113 F.3d 750, 754 (7th Cir. 1997), or through the indirect burden-shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

In the instant case, defendant concedes that plaintiff can establish a prima facie case of racial discrimination (Count I) for each selection, since none of the promoted candidates were white. Defendant further concedes that plaintiff can establish a prima facie case of gender discrimination (Count II) for all but one of the selections. Plaintiff cannot establish discriminatory intent in the selection of David Turner, the only male candidate promoted, through direct or circumstantial evidence*fn2 or through the indirect burden-shifting method.*fn3 Thus, plaintiff cannot establish a prima facie case of gender discrimination for the selection of David Turner under vacancy announcement DH-07-059, and defendant's motion for summary judgment is granted as to gender discrimination in this selection. Finally, defendant concedes that plaintiff can establish a prima facie case of retaliation (Count IV) for each selection. The thrust of defendant's arguments ...


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