United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN Z. LEE, District Judge.
Plaintiff Michael Fudali, who is employed by the Transportation Security Administration ("TSA"), has sued Janet Napolitano, Secretary of the Department of Homeland Security, for national origin and age discrimination, retaliation, and hostile work environment pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Defendant Napolitano has moved for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons provided herein, the Court grants in part and denies in part Defendant's motion.
Unless otherwise noted, the following facts are undisputed. Plaintiff is a Caucasian male of Polish national origin, who was born on September 25, 1952. Def.'s LR 56.1(a)(3) Stmt. ¶ 1; Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 80; Pl.'s Ex. 1, Pl.'s Dep. at 12. TSA hired Plaintiff in March 2002. Pl.'s Ex. 1, Pl.'s Dep. at 7, 11.
Jobs within TSA are categorized into "bands, " such as G-Band, H-Band, etc., with each sequential letter denoting a higher pay-grade than the previous letter. Id. ¶ 4. From November 2003 to March 2008, Plaintiff was employed by TSA as a screening supervisor of baggage at O'Hare Airport, but neither party apprises the Court as to the particular band category of that position. Def.'s LR 56.1(a)(3) Stmt. ¶ 3. In March 2008, TSA promoted Plaintiff to Supervisory Transportation Security Inspector, an H-Band position, at O'Hare Airport. Id. ¶ 31.
Plaintiff contends that TSA discriminated against him based on his age and national origin when he was denied promotions in 2007, 2009, 2010, and 2011 and was given an "Exceeds Standards, " rather than a "Role Model, " performance rating in November 2007. Id. ¶¶ 2, 23-24. He filed EEOC complaints against TSA on December 21, 2007, and September 14, 2010, and alleges that TSA retaliated against him for lodging those complaints when it denied his promotion applications in 2009, 2010, and 2011 and denied him a pay raise (an "In-Position Increase, " or "IPI") in 2009. Id. Plaintiff also alleges that he was subjected to a hostile work environment in the form of offensive comments and jokes made by co-workers and supervisors because of his Polish national origin. Id. ¶¶ 22, 28-30, 41-43; Pl.'s LR 56.1(b)(3)(C) Stmt. ¶¶ 1-6. He further argues that he was subjected to a hostile work environment because his supervisor, Eustacio Berganos, made several age-related comments. Def.'s LR 56.1(a)(3) Stmt. ¶ 44.
Denial of Promotion to Behavior Detection Officer ("0367 Position")
In July 2007, Plaintiff applied and interviewed for a promotion to Behavior Detection Officer, a G-Band position, at O'Hare Airport with job listing VAN TSA-HQ-2007-0367 ("0367 Position"). Id. ¶ 5. Plaintiff asserts, and Defendant disputes, that immediately before Plaintiff's interview for this position, Screening Supervisor Michael Ray told Plaintiff an offensive joke that NAACP meant "niggers are actually colored Polacks" as he escorted Plaintiff to the interview and before he introduced Plaintiff to the two interviewers. Id. ¶ 10. The record does not show that Ray had any further involvement in the interview or selection process for the 0367 Position.
John Thurwanger and Scott McKellips were the individuals who interviewed candidates, including Plaintiff, for the 0367 position. Id. Each interview was scored by ranking the applicant on a scale of 1 (low) to 5 (high) based on his or her responses to the same set of questions in the following nine categories: Attention to Detail; Decisiveness; Flexibility; Interpersonal Skills; Multi-Tasking; Self-Management; Teamwork; Team Building; Operations Management; and Oral Communications. Id. ¶ 7.
Thurwanger states that Plaintiff was unable to address many of the points needed when answering the interview questions. Pl.'s Ex. 14, Thurwanger Aff. at 001448. The interviewers asked each candidate to describe a situation that the candidate had experienced while working for TSA, and then awarded points if the candidate could relate who and what was involved, how and why it occurred, and what, if any, quality improvements resulted from the situation. Id. According to Thurwanger, Plaintiff was able to generally describe situations but was unable to add much detail. Id. Candidates who received higher scores than Plaintiff were able to provide more specifics. Id. Thurwanger stated that almost all of Plaintiff's answers related to situations that occurred many years ago. Id. Thurwanger and McKellips reached a consensus and gave Plaintiff an interview score of 13 out of a possible 40 points. Def.'s LR 56.1(a)(3) Stmt. ¶ 8. The lowest score among the applicants was 13, and the highest score was 40. Pl.'s Ex. 14, Thurwanger Aff. at 001447. A minimum score of 3 in each of the nine categories was required to receive a passing score, and thus, Plaintiff received a failing score on the interview. Id.
Kenneth Fletcher, Deputy Federal Security Director, had the authority to hire for the 0367 Position. Def.'s LR 56.1(a)(3) Stmt. ¶ 7. He did not select Plaintiff. Id. Fletcher did select four other candidates for the 0367 position: (1) Josh Bubinas (twenty-eight years old, Caucasian, and with an interview score of 38/40); (2) Joseph Cazares (thirty-eight years old, Hispanic, and with an interview score of 36/40); (3) Kevin Freel (fifty-eight years old, Caucasian, and with an interview score of 40/40); and (4) Nigal Nazar (forty-four years old, Asian/Pacific Islander, and with an interview score of 38/40). Id. ¶ 9.
Denial of Promotion to Transportation Security Manager ("0425 Position")
In August 2007, Plaintiff applied for the position of Transportation Security Manager, an H-Band position, with job listing VAN TSA-HQ-2007-0425 ("0425 Position"). Gail Georgalas, Reshawn Seabury, and Larry Gallatin interviewed the candidates, including Plaintiff, for the 0425 position. Id. ¶ 10. The interviewers for the 0425 position scored each candidate's interview with the same scoring system and categories used for the 0367 position. Id. ¶ 11. Plaintiff received a score of 29 out of a possible 50 points for the 0425 position. Id. ¶ 12. During the interview, the interviewers asked each candidate to assess a problem and describe a solution. Def.'s Ex. P, Georgalas Aff. at 104299. Georgalas states that many candidates only provided vague and unresponsive answers, but three of them, Randy Kolb, Michael Ray, and Allen Saunders, provided responses that stood out because they were more fully descriptive. Id.
Fletcher did not select Plaintiff for the 0425 position. Def.'s LR 56.1(a)(3) Stmt. ¶ 13. Rather, Fletcher selected two candidates: (1) Allen Saunders (forty-seven years old and African-American); and (2) Michael Ray (sixty years old and German-Irish). Id. ¶ 13. The record does not include Saunders and Ray's interview scores. See id. TSA's documents show that Michael Ray was initially listed as "NS" or not selected for the 425 position. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 13. Plaintiff, however, does not dispute that Ray was, in fact, selected for the position. See id.
Denial of Promotion to Expert Transportation Security Officer ("0471 Position") & Expert Behavior Detection Officer ("0445 Position")
In August and September 2007, Plaintiff applied and interviewed for the positions of Expert Transportation Security Officer, with job listing VAN TSA-HQ-2007-0471 ("0471 Position"), and Behavior Detection Officer, with job listing VAN TSA-HQ-2007-0445 ("0445 Position"). Both were H-Band positions. Def.'s LR 56.1(a)(3) Stmt. ¶ 17. For the 0471 Position, Plaintiff was flown to Dallas-Fort Worth Airport for the interview. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 12. During that interview, Plaintiff was asked about his accent by the interview panel members, and Plaintiff informed them that he was Polish. Id. One of the panel members said, "Flying you out after you had failed at ORD is like a Polish joke. Why are you here? Why did they do this?" Id.
Michael Kimlick, Branch Chief, Behavior Detection Branch, Office of Security Operations at TSA headquarters, had authority to make the hires and did not select Plaintiff for either position. Def.'s LR 56.1(a)(3) Stmt. ¶ 19. Kimlick did not consider Plaintiff for either position because Plaintiff had previously received a failing score when interviewing for the 0367 Position at O'Hare Airport. Id. ¶¶ 18-19. Kimlick had no knowledge of Plaintiff's national origin at the time he decided that Plaintiff would not be considered for the 445 and 471 Positions. Id. ¶ 20. Kimlick selected the following fourteen candidates for the 0471 Position and 0445 Positions: (1) James Dixon (forty-nine years old and African-American); (2) Peter Ethier (thirty-nine years old and Caucasian); (3) Scott Holubec (thirty-one years old and Caucasian); (4) Marion Hudson (twenty-six years old and African-American); (5) Franklin Leatherbury (thirty-eight years old and African-American); (6) Tertia Lynch (thirty-four years old and Caucasian); (7) William Mecum (thirty-one years old and Caucasian); (8) Gale Reynolds (fifty years old and Caucasian); (9) Hector Rodriguez (thirty-three years old and Hispanic); (10) Amanda Scholl (twenty-seven years old and Caucasian); (11) Roderick Tayag (thirty-four years old and Asian/Pacific-Islander); (12) Russell Taylor (forty-five years old and African-American); (13) Shirley Torres (fifty-eight years old and Caucasian); and (14) Alvin Brooks (twenty-seven years old and African-American). Id. ¶ 21.
Given "Exceeds Standards" Rather than "Role Model" Performance Rating
In November 2007, Plaintiff received a PASS ("Performance Accountability Standards System") rating of "Exceeds Standards, " one step below the highest rating of "Role Model." Id. ¶ 23. Plaintiff believes that he was set up to fail because he was assigned poor performing employees for his team. Of the sixteen employees assigned to him, eight had been charged with being absent without leave during the 2007 PASS rating period. Id. ¶ 24. Plaintiff argues that two other employees, Lonnie Acosta (forty-one years old and national origin not Polish) and Michael Nelson (sixty-one years old and national origin not Polish), both of whom held the same position as Plaintiff, received "Role Model" ratings in 2007. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 18. However, neither of the two other higher-rated employees was selected for any of the positions for which Plaintiff applied, and there is no evidence in the record that either received any specific raise, reward, or any benefit whatsoever from having received a higher 2007 PASS rating than Plaintiff. See generally Def.'s Ex. G, Resps. Interrogatories; Def.'s LR 56.1(a)(3) Stmt.; Pl.'s LR 56.1(b)(3)(C) Stmt.
Plaintiff's First EEOC Complaint
On December 21, 2007, Plaintiff filed his first EEOC complaint. He alleged that TSA had discriminated against him based on his national origin and age by failing to promote him to the 0367, 0425, 0445, and 0471 Positions in 2007 and giving him an "Exceeds Standards" rather than "Role Model" 2007 PASS rating. Def.'s LR 56.1(a)(3) Stmt. ¶ 2.
Promotion to Supervisory Transportation Security Inspector
In March 2008, TSA promoted Plaintiff to Supervisory Transportation Security Inspector, an H-Band position, at O'Hare Airport. Id. ¶ 31. Andrew Huber, Assistant Federal Security Director for Regulatory Inspection at O'Hare Airport, and Eustacio Berganos, Supervisory Inspector for Cargo at O'Hare Airport, and one or two other people interviewed Plaintiff for the position. Id. Berganos recommended Plaintiff for the position. Id.
Denial of In-Position Increase ("IPI") in 2009
On November 6, 2009, Berganos informed Plaintiff: "I was unable to justify an IPI for you this year due to the issue we had at the beginning of the fiscal year regarding [Plaintiff's] work plan.... When I return, we're going to sit down and create sound, attainable goals that will put you in a position to receive IPIs in the future." Id. ¶ 33; Pl.'s Ex. 4, Email of 11/6/09 from E. Berganos to M. Fudali, at P10 001224. On November 10, 2009, Plaintiff presented arguments as to why he should receive an IPI for fiscal year 2009. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 21. In response, Berganos stated: "If you will recall, we discussed, after the long conversation we had on time management', that the time you spent on the EEOC case still did not justify how far behind you were in your work plan." Id.
When Plaintiff met with Berganos in December 2009, Plaintiff still believed that he could receive an IPI for fiscal year 2009. Id. ¶ 33. In March or April 2010, Berganos told Plaintiff that he was still looking into the 2009 IPI issue. Id. ¶ 34. In June 2010, Plaintiff asked Berganos about the IPI and Berganos said "forget about that stuff, there's another IPI coming up in September." Id. ¶ 35. Although TSA originally represented that Berganos denied all of his employees an IPI in 2009, see id. ¶ 36, TSA admits that, in fact, Berganos awarded IPIs for fiscal year 2009 to Juan Munoz, who was thirty-one years old and non-Polish, and Josh Bubinas, who was thirty years old and non-Polish, as well as two other employees, Elizabeth Kornegay and Elise Sheldon, both in the protected age group and non-Polish. Id. ¶¶ 30, 36.
In 2009, Berganos recommended that Plaintiff receive a cash award of $2, 000.00. Def.'s LR 56.1(a)(3) Stmt. ¶ 34. Huber approved the recommendation, and Plaintiff received the cash award. Id.
Denial of Promotion to Transportation Security Inspector ("198784 Position")
In December 2009, Plaintiff applied and interviewed for one of two open positions for Transportation Security Inspector, an I-Band position, with job listing ORD-09-198784 ("198784 Position"). When Plaintiff told his supervisor, Berganos, that he was thinking of applying for the 198784 Position, Berganos told Plaintiff, "We're looking for Aaron Gonzales and Edgar Rivas types." Id. ¶ 46. Plaintiff took this to mean that TSA wanted to hire younger, non-Polish people because Gonzales and Rivas were both in their early 30s and Hispanic. Id. ¶ 46.
John Beckius, Joyce Dorsey, and Barbara Hornbach interviewed candidates, including Plaintiff, for the 198784 Position. Id. ¶ 45. Candidates for the 198784 Position (and all other Transportation Security Inspector positions discussed below) were required to demonstrate, in addition to their past experience and achievements, qualifications in the following categories: (1) Transportation Security Proficiency; (2) Oral Communication; (3) Written Communication; (4) Attention to Detail; (5) Decisiveness; (6) Team Building; and (7) Flexibility. Id. ¶ 47.
Andrew Huber, who had the authority to make the hiring decision, did not select Plaintiff for either position. Id. ¶ 48. When Huber made the selection, he knew that Plaintiff had filed an EEOC Complaint. Pl.'s Ex. 7, Huber Dep. at 74. During his deposition in the instant litigation, Huber stated that "a tattletale environment... [is] not what I fostered in my group." Id. at 161. Huber selected Josh Bubinas (thirty-one years old, national origin unspecified) for one of the positions. Id. Bubinas received a score of 18 out of a possible 20 points in his interview, while Fudali received a score of 10 points in his interview. Id. ¶ 49. No other interviewee, other than Bubinas, received a score higher than 12. Id. The other position was not filled due to the poor interview scores of the remaining candidates. Id.
Plaintiff's Second EEOC Complaint
On September 14, 2010, Plaintiff filed his second EEOC complaint. Id. ¶ 2. He alleged that TSA had discriminated against him based on his national origin and age, as well as retaliated against him for filing his previous EEOC complaint, when they failed to give him the IPI in 2009 and failed to promote him to the 198784 Position. Id.
Denial of Promotion to Transportation Security Inspector ("283327 Position" & "329765 Position")
In October 2010, TSA reposted the 198784 Position that had remained unfilled, with job listing ORD-10-283327 ("283327 Position"), and Plaintiff applied and interviewed for the position. Id. ¶ 50. Tom Pfister, a transportation security inspector from Milwaukee's airport, Tom Simpson, a transportation security inspector, and Colette Johnson, a human resources specialist from the Indianapolis airport, interviewed the candidates, including Plaintiff, for the 283327 Position. Id. ¶ 51. Kathleen Petrowsky, federal security director at O'Hare ...