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Henderson v. McDonald

United States District Court, N.D. Illinois, Eastern Division

December 14, 2016

ROBERT A. MCDONALD, as Secretary, U.S. Department of Veterans Affairs, Defendant.


          Samuel Der-Yeghiayan United States District Court Judge.

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


         Plaintiff James Henderson (Henderson) alleges that he is an African-American male, aged 59. Henderson allegedly began working for the U.S. Department of Veteran Affairs (VA) in 1986. Henderson contends that during his employment with the VA he filed various complaints alleging discrimination in regard to the terms and conditions of his employment. Henderson's most recent position with the Department was allegedly as a Detective with the Hines Veterans Affairs Medical Center Police Department (Hines). Although Henderson technically still holds the position of Detective, in 2012, due to his physical inability to perform his duties, he was relieved of his credentials. His authorization to carry a weapon was rescinded and he no longer performs the type of duties normally performed by a detective. In March 2013, Gary Marsh (Marsh) allegedly assumed the position of Chief of Police at Hines. Marsh allegedly decided to fill a vacant position allotted for a Criminal Investigator and Henderson applied for the position. After an extensive selection process before two panels, Cary Kolbe (Kolbe), a disabled veteran, was allegedly chosen for the Criminal Investigator position. Even though Henderson scored seventh best out of fifteen applicants, Henderson contends that he was not selected for the position because of his race and age, and because he had complained about alleged discrimination in the past. Henderson contends that Kolbe is younger than him, is Caucasian, and has not complained about discrimination in the past.

         Henderson includes in his complaint a race discrimination claim brought under Title VII of the Civil Rights Act of 1964 (Title VII) (Count I), an age discrimination claim brought under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. (Count I), a Title VII retaliation claim (Count II), and an ADEA retaliation claim (Count II). Defendant now moves for summary judgment on all claims.


         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). 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. Phillip 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).


         I. Title VII Discrimination Claim

         Defendant moves for summary judgment on the Title VII discrimination claim. A plaintiff who is bringing a Title VII discrimination claim and is seeking to defeat a defendant's motion for summary judgment may proceed under the Ortiz reasonable factfinder method or the McDonnell Douglas burden-shifting method. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). In Ortiz, the Seventh Circuit, recently held that the district courts should no longer employ the “direct - and -indirect framework, ” which included the “two tests” that were known as the direct method of proof and indirect method of proof. Id. at 765-66 (stating that the direct and indirect methods of proof “complicate[d] matters by forcing parties to consider the same evidence in multiple ways (and sometimes to disregard evidence that does not seem to fit one method rather than the other)”); see also Cole v. Board of Trustees of Northern Illinois University, 838 F.3d 888, 899 (7th Cir. 2016)(stating that the court must “look past the ossified direct/indirect paradigm”). The Seventh Circuit, however, also indicated that it was not barring a plaintiff from proceeding under the McDonnell Douglas burden-shifting method, which was commonly referred to in the past as the indirect method of proof. Ortiz, 834 F.3d at 766.

         A. Ortiz Reasonable Factfinder Method

         Henderson argues that he can defeat Defendant's motion under the Ortiz reasonable factfinder method. The Seventh Circuit held that a plaintiff can defeat a defendant's motion for summary judgment under the Ortiz reasonable factfinder method by pointing to sufficient evidence to show that a reasonable factfinder could “conclude that the plaintiff's [protected characteristic] caused the . . . adverse employment action.” Ortiz, 834 F.3d at 765 (stating that “[e]vidence must be considered as a whole”); Cole, 838 F.3d at 899 (stating that “the critical question . . . is simply whether a reasonable jury could infer prohibited discrimination”)(internal quotations omitted)(quoting Perez v. Thorntons, Inc., 731 F.3d 699, 703 (7th Cir. 2013)).

         Defendant argues that the Criminal Investigator position was selected pursuant to a neutral selection process and that there is no evidence that the selection was based upon Henderson's race. It is undisputed that the VA convened two panels for the selection process. (RSF Par. 16-17). Although Henderson responds to these facts and other facts in his response to Defendant's statement of material facts by stating that they are “Denied, ” Henderson fails to cite to evidence that supports the denials and instead offers additional arguments regarding the facts in an effort to diminish their relevancy. (RSF Par. 16-17). Henderson has, for example, no evidence showing that the VA did not convene the panels. Henderson acknowledges the panels in his own filings. Yet he responds to such facts with “denied” rather than “admitted” or “admitted in part.” Pursuant to Local Rule 56.1, when such an evasive response without a citation to facts to support such a denial is presented, the facts are deemed to be undisputed.

         It is undisputed that under the selection process the first panel would review the applicants' resumes and select the best ones based on a predetermined scoring system, and that the second panel would interview the applicants whose resumes had been selected by the first panel. (RSF Par. 16-17, 22-24). It is further undisputed that efforts were made to conceal the identities of applicants by redacting names on the resumes. (RSF Par. 25). It is further undisputed that Henderson's resume score was seventh ...

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