The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Plaintiff Robert Weinert learned it's a dog eat dog world after being passed over for the K-9 Officer position with the Village of Lemont Police Department. Not being one to roll over, Weinert sued the Village of Lemont for age discrimination and retaliation. The defendant has moved for summary judgment. For the reasons stated herein, the motion is granted in part and denied in part.
Weinert was born August 20, 1963, and he has been employed as a police officer with the Village of Lemont Police Department since April 6, 1992. He has a high school diploma but no college degree.
While the defendant states that Chief of Police Kevin Shaughnessy's date of birth is September 29, 1953, this fact is not supported by a citation to the record. Shaughnessy was appointed Chief of Police of the Lemont Police Department some time in 2004. When Shaughnessy started as Chief of Police, he "brought in a different philosophy" to the department which was to "appoint capable, qualified people to any position." Shaughnessy Dep. at 307, 450. "Many of the issues [Shaugnessy] believed needed attention [in the department] could be traced directly back to a lack of supervision by the former administration." Interrogatory Answers at 2(c), Defs. Exh. B. According to him, accountability had not previously been enforced and as a result, "overall officer productivity was low and unacceptable." Id.
As part of his authority as Chief of Police, Shaughnessy has the power to purge, modify, revise and alter directives and General Orders of the Lemont Police Department at his discretion as he deems necessary to meet his goals and objectives for the department.
Sgt. Lehmacher had served as the K-9 Officer between 1990 and 1995, when he had only two years with the department. Officer Rob Borowski, who was hired after Officer Weinert, also served as the K-9 Officer for some time before leaving for another position. Prior to that time, Officer Weinert had not submitted his name for the position. Officer Moranda had also been appointed the K-9 Officer in 2005 when he had 3 years with the department, but he declined the position and took a job with another police department. When Moranda declined the position, the department sent out a memorandum seeking interest in a replacement. Because no officers (including the plaintiff) responded, the department sold the dog.
In March 2007, the department announced that it was seeking candidates for the reinstatement of a K-9 Officer position. The announcement was sent to the entire department and contained no limitation on the eligibility of officers with only a certain amount of time with the department.
At that time, the K-9 Officer position was subject to the Lemont Police Department General Order 41.1.4, Subsection Q, which provides that applicants have:
a. Full time status, non-probationary police officer with work performance, disciplinary and medical/sick leave records.
b. A willingness to remain with the K-9 unit for at least seven years.
c. A willingness (together with other family members) to care for and house the K-9 at the officer's residence with a secure outdoor area for the canine.
d. A strong desire to work with K-9's and willingness to care for and train the animal.
e. The ability to pass designated physical fitness and agility tests related to the tasks of canine handling.
Weinert disagrees with the first qualification. Specifically, he contends that the General Order in effect in March 2007 required in subsection (a) "At least five years of uniform patrol experience with satisfactory work performance, disciplinary and medical/sick leave records." According to Weinert, when General Orders are updated, officers sign off on "roll call training sheets" to ensure that all officers have viewed and understand the issues or the training involved. Weinert states that although there are roll call training sheets showing that officers had received and reviewed updates to other General Orders, Lemont has not produced a roll call training sheet for General Order 41.1. The defendant concedes that General Order 41.1 previously required that an officer have 5 years experience to qualify for the K-9 Officer position. However, the defendant contends that because the officer who was responsible for the amendments has died, the effective date of the amendment is unknown. The defendant further notes that GO 12.2 provides that the Chief of Police has the authority to modify any General Order and that the chief can "update, purge or revise" any order or directive at his discretion.
Although the defendant contends that the General Order also provides that the Chief of Police is responsible for the selection of the K-9 Officer, but does not provide for a selection process, the defendant fails to set forth a proper citation for this fact.
In 2007, three candidates expressed interest in the K-9 Officer position: the plaintiff, Brian Kondrat, and Brian Danaher. Danaher withdrew his name prior to the interviews for the position. Sergeant Don Jones and Commander Dan Tully interviewed Weinert and Kondrat and ultimately recommended to Chief Shaugnessy that Kondrat be appointed to the K-9 Officer position. Shaugnessy agreed and appointed Kondrat to the position on or about January 22, 2008.
Weinert filed his first EEOC charge on February 28, 2008, alleging age discrimination based on the denial of his promotion to the K-9 Officer position. On October 30, 2008, Weinert filed a second charge alleging age discrimination and retaliation. Specifically, Weinert alleged age discrimination and retaliation based on his failure to be appointed to the Officer in Charge position on or about July 23, 2008. Weinert filed the instant complaint alleging age discrimination and retaliation on November 2, 2009. Then, after the defendant's motion to dismiss the plaintiff's original complaint, Weinert filed a third EEOC charge on April 5, 2010, alleging various other instances of purported retaliation.
The remaining relevant facts are discussed as necessary in the analysis of Weinert's claims.
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Volenti v. Qualex, Inc., 970 F.2d 363, 365 (7th Cir. 1992). A court should grant a motion for summary judgment only when the record shows that a reasonable jury could not find for the nonmoving party. Id. To successfully oppose a motion for summary judgment, however, the non-moving party must do more than raise a "metaphysical doubt" as to the material facts. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, it must demonstrate that a genuine issue of fact exists. See id. at 587.
To prove discrimination in violation of the ADEA, Weinert must establish that the defendant subjected him to an adverse employment action because of his age. See Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010). In other words, age must be the but-for causation for the alleged adverse action. Gross v. FBL Fin. Servs., Inc., ------ U.S. --------, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009). Weinert may attempt to prove discrimination ...