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Anthony Palermo v. Hillary Rodham Clinton

March 22, 2011

ANTHONY PALERMO, PLAINTIFF,
v.
HILLARY RODHAM CLINTON, SECRETARY, U.S. DEPARTMENT OF STATE DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant's motion for summary judgment. For the reasons stated below, the court grants the motion for summary judgment.

BACKGROUND

Plaintiff Anthony Palermo (Palermo) alleges that he is a Caucasian male and that he has worked at the Department of State's Chicago Regional Passport Office since July of 1995. Palermo also alleges that he filed various Equal Employment Opportunity complaints of discrimination (EEO Complaints) beginning in 2002 and that he filed a complaint in federal court in 2004 (2004 Case), alleging that he was discriminated against when he did not receive two promotions. In settlement of the 2004 Case, Palermo was allegedly promoted to the position of Passport Operations Officer and advanced to level GS-11. Palermo further alleges that he filed a complaint in federal court in 2008 (2008 Case), alleging that he was discriminated against when Defendant failed to promote Palermo to level GS-12. Palermo alleges that the 2008 Case is still pending.

In addition, Palermo alleges that his manager, Brittany Williams (Williams), who is a black female, and another one of his direct supervisors, Terry Green (Green) were aware of his EEO Complaints, the 2004 Case, and the 2008 Case. According to Palermo, in 2007, Williams found Palermo ineligible for a performance-based bonus (2007 Bonus), despite the fact that Palermo received a performance rating of "excellent" on his performance evaluation for 2007. (Compl. Par. 10). Williams also allegedly made comments on Palermo's performance evaluation for 2008 (2008 Performance Evaluation) that were "inaccurate, inflammatory, and delayed." (Compl. Par. 11). In addition, Palermo was allegedly never provided a copy of the final, signed 2008 Performance Evaluation. According to Palermo, Defendant did not award him the 2007 Bonus, issued him a negative 2008 Performance Review, and withheld his final, signed 2008 Performance Review based on Palermo's race, gender, and prior complaints of discrimination.

Palermo includes in his complaint a claim alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. (Count I), a Title VII gender discrimination claim (Count II), and a Title VII retaliation claim (Count III). Defendant moves for summary judgment on all claims.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals 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); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

A plaintiff bringing a Title VII claim can defeat a defendant's motion for summary judgment under the direct method of proof or the indirect method of proof. Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 630 (7th Cir. 2009).

I. Direct Method of Proof - Discrimination

To defeat a defendant's summary judgment motion under the direct method of proof in a Title VII discrimination case, a plaintiff must show through direct or circumstantial evidence that there are "'triable issues as to whether discrimination motivated the adverse employment action.'" Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009)(quoting Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009))(citation omitted); see also Stephens v. Erickson, 569 F.3d 779, 787 (7th Cir. 2009)(stating that "[a] plaintiff may also prevail by constructing a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination by the decisionmaker")(internal quotations omitted). Palermo has not argued that he should be entitled to proceed with his discrimination claims under the direct method of proof. However, even if Palermo had made such an argument, Palermo has not pointed to direct evidence of unlawful discrimination nor pointed to sufficient circumstantial evidence to create a convincing mosaic of evidence that indicates unlawful discrimination. Since Palermo has not pointed to sufficient direct or circumstantial evidence to show that there are triable issues as to whether discrimination motivated the employment actions at issue, Palermo cannot proceed under the direct method of proof on his discrimination claims.

II. Direct Method of Proof - Retaliation

To defeat a defendant's summary judgment motion under the direct method of proof in a Title VII retaliation case, a plaintiff must establish: "(1) he engaged in a statutorily protected activity; (2) he suffered a materially adverse action by his employer; and (3) a causal link between the two." Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 677 (7th Cir. 2010); see also Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 673 (7th Cir. 2011)(indicating that, under the direct method of proof, a plaintiff can use direct or circumstantial evidence to establish the elements of his retaliation case). Palermo has not argued that he should be entitled to proceed with his retaliation claim under the direct method of proof. However, even if Palermo had made such an argument, Palermo has not pointed to evidence of a causal connection between his statutorily protected activity and the actions that he has identified as adverse employment actions. Therefore, Palermo cannot proceed under the direct method of proof on his retaliation claim.

III. Indirect Method of Proof - Discrimination

Defendant contends that Palermo cannot proceed under the indirect method of proof on his discrimination claim. Under the indirect method of proof, a plaintiff must first make out a prima facie case of discrimination by establishing "(1) that he was a member of a protected class, (2) that he was performing his job satisfactorily, (3) that he suffered an adverse employment action, and (4) that [the defendant] treated a similarly situated individual outside [the] protected class more favorably." Montgomery v. American Airlines, Inc., 626 F.3d 382, 394 (7th Cir. 2010)(citing Dear v. Shinseki, 578 F.3d 605, 609 (7th Cir. 2009)). In a reverse discrimination case, the first prong of the prima facie case is modified to require the plaintiff to "show background circumstances sufficient to demonstrate that the particular employer has reason or inclination to discriminate invidiously against whites [or men] or evidence that there is something 'fishy' about the facts at hand." Hague v. Thompson Distribution Co.,436 F.3d 816, 820 (7th Cir. 2006)(citations omitted)(internal quotations omitted). If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to present a legitimate non-discriminatory reason for the adverse ...


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