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Atanacio G. Sambrano v. Ray Mabus

December 8, 2010

ATANACIO G. SAMBRANO, PLAINTIFF,
v.
RAY MABUS, SECRETARY, DEPARTMENT OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Atanacio Sambrano ("Sambrano") has sued Secretary of the Department of the Navy Ray Mabus ("Mabus"), charging the Navy with discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. §§2000e to 2000e-17) and the Age Discrimination in Employment Act of 1967 ("ADEA," 42 U.S.C. §§621 to 624). Mabus has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, and the motion has been fully briefed. For the reasons stated here, the motion is granted and this action is dismissed with prejudice.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing*fn1 the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But a non-movant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and "must come forward with specific facts demonstrating that there is a genuine issue for trial" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

What follows then is a summary of the facts as tendered in accordance with the strictures of this District Court's LR 56.1, adopted to implement Rule 56.*fn2 Although as stated earlier the facts must be viewed in the light most favorable to non-movant Sambrano, that requirement is applied within any limitations created by the extent of his compliance (or noncompliance) with LR 56.1.*fn3

Factual Background

Sambrano is a 66-year-old Asian man employed as a civil engineer at the Naval Facilities Engineering Command Midwest ("NAVFAC-Midwest") in Great Lakes, Illinois (M. St. ¶¶1,8). With the exception of an absence to work in Africa between 1984 and 1995, Sambrano was employed as a GS-11 civil engineer at NAVFAC-Midwest continuously from 1980 until his position description was converted to a GS-12 position in 2010 (id. ¶¶2-5, 68). Sambrano had previously filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") in 2000 (id. ¶51).

In October 2005 the Navy announced a GS-12 civil engineer vacancy, and Sambrano applied for it (M. St. ¶9). Lori Pye ("Pye") was designated as the selecting official for the position for administrative reasons (id. ¶10), while Francine Gomes ("Gomes") was delegated the task of making the actual selection (id.) Eight candidates applied for the position, and four of them (including Sambrano) were found to merit interviews (M. St. ¶¶14, 17). Ratings by one of the interviewers were disregarded by the interviewing board because that interviewer was unable to participate in one of the interviews (id. ¶19).

Despite receiving the second highest (rather than the highest) raw score after the review of applications and interviews, Sambrano was recommended by the board for the position on December 12, 2005 (M. St. ¶¶20-21). After considering the board's recommendation, the selection process and the Base Realignment and Closure ("BRAC") process, Gomes made an initial decision to cancel the position (id. ¶¶24-25).

On February 14, 2006 the Commanding Officer, Captain Hugh Hemstreet ("Hemstreet"), sent a letter to all of the NAVFAC-Midwest employees stating that as a result of the BRAC process the Southern Division ("SOUTHDIV") was being closed and partially realigned with NAVFAC-Midwest (M. St. ¶26). After receiving that information and consulting with Executive Officer Antonio Edmund, Christopher Jennison ("Jennison") and Pye, Gomes made the final decision to cancel the position (id. ¶¶30-32). On February 22, 2006 Gomes informed Sambrano of the cancellation of the position (id. ¶41).

On March 15, 2006 Sambrano filed a Charge of Discrimination with EEOC (M. St. ¶45). On July 8, 2009 EEOC issued a right-to- sue letter to Sambrano (id. ¶48).

Employment Discrimination under Title VII and ADEA

To survive a summary judgment motion, Sambrano must establish a genuine issue of material fact as to whether Navy engaged in intentional discrimination. Two approaches are available to that end: (1) the direct approach, where a plaintiff adduces direct evidence of the employer's discriminatory intent or creates a "convincing mosaic of discrimination" out of pieces of circumstantial evidence (Troupe v. May Dep't Stores Co., 20 F.3d 734, 737 (7th Cir. 2004)) and (2) the indirect approach, which employs the sequential burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).*fn4

Direct Approach

Sambrano primarily advances the direct approach to proving discrimination. Because there is no direct evidence of Navy's discriminatory animus, Sambrano can adduce only circumstantial evidence to suggest discrimination.*fn5 For that purpose he points to a variety of potential factors that he characterizes this way: his history of not being promoted from his GS-11 position while performing the work of a GS-12 employee, the presence of similarly situated non-protected employees who were ...

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