United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Robert Smith brought this suit against Toni Preckwinkle, in her official capacity as Cook County Board President, and his supervisor, James D'Amico, alleging discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq. Doc. 5. The court dismissed the claims against D'Amico. Doc. 34. Preckwinkle, who will be called "the County" because this is an official capacity suit, see Sow v. Fortville Police Dep't, 636 F.3d 293, 300 (7th Cir. 2011) ("an official capacity suit is another way of pleading an action against an entity of which the officer is an agent"), moves for summary judgment. Doc. 47. The motion is granted.
The material facts are set forth as favorably to Smith as the record and Local Rule 56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). Smith is currently employed as an Operating Engineer II ("OE2") at Provident Hospital of Cook County, a position to which he was promoted from Operating Engineer I ("OE1") in 1999. Doc. 52 at p. 1, ¶¶ 1-2. The County has been aware since before 2005 that Smith has a disability in his right ankle; the disability was caused by a 1973 motorcycle accident. Id. at p. 2, ¶¶ 5, 7. Smith's condition was exacerbated in 2005 when he tore his Achilles tendon in a work-related injury. Id. at p. 2, ¶ 6. Smith's right leg is a half inch shorter than his left leg. Doc. 54 at p. 13, ¶ 12.
Smith applied and interviewed for an Operating Engineer III ("OE3") position in May 2011. Doc. 52 at p. 3, ¶ 13. Smith received the lowest interview score of any applicant. Id. at p. 3, ¶ 14. Lee Broomfield received the highest score and was hired for the position. Id. at p. 3, ¶ 15. The County says that it chose Broomfield because he "impressed the interview panel, " understood procedures and compliance, was "comfortable working in [a] detention facility, " and was a "proven leader, " and also because his experience, knowledge, and attitude made him a great fit for the position. Id. at p. 3 ¶ 16. Another OE3 position became available in January 2012. Id. at p. 4, ¶ 17. This time the County hired Pat McCarthy, who received the second highest score from the May 2011 interviews. Id. at p. 4, ¶¶ 17-18. A third OE3 position became available in November 2012. Id. at p. 4, ¶ 19. Smith applied for the position but did not submit his "CFC card" with his application, which the job posting explicitly required. Id. at p. 4, ¶ 21. As a result, Smith was not interviewed. Id. p. 4, at ¶ 22.[*] The third OE3 position has not been filled. Doc. 54 at p. 11, ¶ 4.
Smith has the qualifications to fill the OE3 position. Id. at p. 11, ¶ 5. Although Smith did not submit his CFC card with his application for the third OE3 position, he had a CFC card and the County knew that he had such a card. Id. at pp. 11-12, ¶ 6. Smith asserts that he met and exceeded every requirement listed in the OE3 job posting. Id. at p. 12, ¶ 8. That assertion is indisputably incorrect because the job posting states that "[p]ossession of a CFC (Chlorofluoro Carbon) card is required" and (in bold) that the applicant "[m]ust show proof of license on application, in the certification section or upload a copy of the license in the attachment section, in order to be considered, " Doc. 52-2 at 1, and it is undisputed, as noted above, that Smith did not submit his CFC card with his November 2012 application even though it was explicitly required, Doc. 52 at p. 4, ¶ 21.
Smith's Local Rule 56.1(b)(3)(C) statement asserts that he "believes" that D'Amico "influenced [Smith's] test scores" and that "he was discriminated against because of his disability." Doc. 54 at pp. 12-13, ¶¶ 9-10. The paragraphs of Smith's Local Rule 56.1(b)(3)(C) statement containing these assertions, and the cited materials, offer no basis for those beliefs. Smith did testify at his deposition that "[m]ore than one coworker has told me what Mr. Damico has said about me, but he's never said it to me." Doc. 48-2 at 32. D'Amico's statements to Smith's coworkers may not be hearsay, but the coworkers' statements to Smith, which provide the only vehicle for D'Amico's statements, are hearsay and thus are inadmissible on summary judgment. See Stephens v. Erickson, 569 F.3d 779, 792-94 (7th Cir. 2009); Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir. 2003). In any event, Smith does not mention the coworkers' statements in either his brief or Local Rule 56.1(b) submissions, so any reliance on those statements is forfeited.
Smith's Local Rule 56.1(b)(3)(C) statement also asserts that the County "manipulated the minimum qualifications so that they varied from the standard job description provided to applicants." Doc. 54 at p. 13, ¶ 11. For support, Smith cites the processing form for Smith's OE3 application and the County's standard job description for the OE3 position. Docs. 52-1, 52-3. Smith does not explain how those documents support his assertion that the job description was "manipulated, " and no such explanation is apparent to the court. Accordingly, the assertion is disregarded.
Smith filed a charge of discrimination with the EEOC on September 25, 2012. Doc. 52 at p. 2, ¶ 8. The EEOC issued a right-to-sue letter on October 31, 2012, id. at p. 2, ¶ 9, and Smith filed this suit on January 22, 2013, Doc. 1.
The County attacks some portions of Smith's ADA claim on timeliness grounds, Doc. 48 at 4-5, but there is no need to reach that issue because the claim, when considered against the facts the court may consider on summary judgment, plainly fails on the merits. "The ADA proscribes an employer from discriminat[ing] against a qualified individual on the basis of disability' in job application procedures and in the hiring or advancement of employees." Majors v. Gen. Elec. Co., 714 F.3d 527, 533 (7th Cir. 2013) (quoting 42 U.S.C. § 12112(a)) (alterations in original). "As in other disparate treatment employment discrimination claims, a plaintiff may prove discrimination in violation of the ADA using one of two methods. Under the so-called direct' method, the plaintiff may show either direct or circumstantial evidence that points to a conclusion that the employer acted as it did for illegal reasons. The alternative way to prove discrimination is the familiar burden-shifting McDonnell Douglas method." Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1126 (7th Cir. 2006) (citations omitted).
Smith cannot meet his burden under the direct method. "Under the direct method, a plaintiff can present either direct or circumstantial evidence to meet its burden. Direct evidence requires an admission by the decision maker that his or her actions were based upon the prohibited animus." Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011) (citations omitted). There is no direct evidence of discrimination in this case. "However, employers are usually careful not to offer overt remarks revealing discrimination, and circumstantial evidence that allows a jury to infer intentional discrimination is also permissible. The type of circumstantial evidence that a plaintiff may produce to survive summary judgment includes: (1) suspicious timing; (2) ambiguous statements or behavior towards other employees in the protected group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically receive better treatment; and (4) evidence that the employer offered a pretextual reason for an adverse employment action." Ibid. (citations omitted). A "plaintiff may show pretext by presenting evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge." Nawrot v. CPC Int'l, 277 F.3d 896, 906 (7th Cir. 2002) (internal quotation marks omitted).
Smith adduces no evidence that his disability played a role in the County's decisions. As noted above, Smith "believes" that he was discriminated against because of his disability and that D'Amico improperly manipulated his test scores. Smith's subjective beliefs, standing alone, cannot defeat summary judgment. See Hanners, 674 F.3d at 694 ("Although Mr. Hanners may believe that the defendants' statements are evidence of racial animus, the subjective beliefs of the plaintiff... are insufficient to create a genuine issue of material fact.") (internal quotation marks omitted); Yancick v. Hanna Steel Corp., 653 F.3d 532, 548 (7th Cir. 2011) ("If the subjective beliefs of plaintiffs in employment discrimination cases could, by themselves, create genuine issues of material fact, then virtually all defense motions for summary judgment in such cases would be doomed.") (internal quotation marks omitted). Moreover, the record materials cited by Smith do not support his beliefs; in fact, the evidence undermines them. When asked at his deposition whether he had "a reason to believe that [Bromfield and McCarthy] were promoted because they did not have a disability, " Smith responded "No." Doc. 47-2 at 36. Smith added that "I just know that [Bromfield and McCarthy] were able-bodied people, " and that D'Amico "didn't like me in a high place." Ibid. At best, this testimony could support a finding that D'Amico had personal animus towards Smith. However, the coincidence of personal animus and a protected characteristic is not evidence of discrimination based on the protected characteristic. See Hall v. City of Chicago, 713 F.3d 325, 333 (7th Cir. 2013) (holding that the "coincidence" of the plaintiff's protected characteristic and "personal animus" towards the plaintiff "alone does not provide an inference of... discrimination").
Smith fares no better under the indirect method. The indirect method assigns to Smith the initial burden of establishing a prima facie case of discrimination by offering evidence tending to show that "(1) he was disabled within the meaning of the ADA; (2) he applied for and was qualified for the position sought; (3) he was rejected for the position; and (4) those who were promoted had similar or lesser qualifications for the job." Conley v. Vill. of Bedford Park, 215 F.3d 703, 711 (7th Cir. 2000). If Smith makes a prima facie case, the burden shifts to the County, which must offer a nondiscriminatory reason for denying the promotion. See Adelman-Reyes v. St. Xavier Univ., 500 F.3d 662, 665 (7th Cir. 2007). If the County meets its burden, the burden shifts back to Smith, who must provide evidence that the County's stated reason is pretext. Ibid. "Pretext is more than just faulty reasoning or mistaken ...