United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge
Brian Morrill sued his employer, the Department of Homeland
Security (DHS), for alleged discrimination and retaliation in
violation of the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 621 et seq. . Defendant moved
for summary judgment. . For the reasons explained below,
this Court grants Defendant's motion.
Local Rule 56.1
following facts come primarily from Defendant's Local
Rule 56.1 statement of undisputed material facts  and
Plaintiff's statement of additional facts . The
parties agree on many of the relevant facts. Plaintiff,
however, unsuccessfully attempts to dispute some of
Defendant's statements of fact.
Court has “broad discretion” to enforce the local
rules. Benuzzi v. Bd. of Educ. of Chi., 647 F.3d
652, 655 (7th Cir. 2011). The local rules governing summary
judgment motions demand that the non-moving party's
responses to the moving party's statements of fact
contain “specific references” to record evidence
to justify any denial. Local R. 56.1(b)(3); see also
Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000).
Thus, purely argumentative denials, legal conclusions, and
unsupported general denials do not belong in Local Rule 56.1
statements. See Phillips v. Quality Terminal Servs.,
LLC, 855 F.Supp.2d 764, 771 (N.D. Ill. 2012);
Malec, 191 F.R.D. at 584. District courts may
disregard improper denials and deem the opponent's
factual allegations admitted. See Aberman v. Bd. of Educ.
of Chi., 242 F.Supp.3d 672, 677 (N.D. Ill. 2017).
this Court disregards Plaintiff's responses to the
following paragraphs of Defendant's statement of facts:
28, 35, 36, and 37. His responses cite portions of the record
that fail to refute the statements of fact. See
Malec, 191 F.R.D. at 584. Defendant's corresponding
statements of fact are deemed admitted. Aberman, 242
F.Supp.3d at 677.
works as an emergency management specialist/program analyst
at the Federal Emergency Management Agency (FEMA), a
sub-agency of DHS.  ¶ 3-4. Plaintiff turned 40 in
June 2013. Id. ¶ 3; [26-2] at 15. Plaintiff
works in FEMA's Region V, headquartered in Chicago,
Illinois.  ¶¶ 4, 10. At all times relevant to
this case, Plaintiff worked at Region V, in the response
division of the planning branch, under the same two
supervisors: Gustav Wulfkuhle, the planning branch chief and
Plaintiff's direct supervisor, and Paul Preusse, the
response division director. Id. ¶ 10. Preusse,
in turn, reports to Janet Odeshoo, the deputy regional
administrator. Id. Through 2015, Odeshoo reported to
Andrew Velasquez III, the regional administrator.
began working for FEMA in September 2010 as a program analyst
at the GS-11/12 pay grade. Id. ¶¶ 6-7.
Being hired at that designation meant that if Plaintiff
performed satisfactorily for one year, he would automatically
advance to the GS-12 pay grade. Id. ¶ 7. In
2011, Plaintiff advanced to GS-12, step 1; in 2012 to GS-12,
step 2; in 2013 to GS-12, step 3; and in 2014, to GS-12, step
program analyst, Plaintiff managed and coordinated responses
to disasters, emergencies, hazards, and various types of
crises. Id. ¶ 8. From the time he started at
FEMA, Plaintiff has worked on the New Madrid Planning
Project, a large, complex project planning out a regional
earthquake response. Id. ¶ 9. At his
deposition, Plaintiff described New Madrid as FEMA's
“largest project ever.” [26-2] at 10. Plaintiff
has also worked on planning initiatives to address pandemics
and power outages.  ¶ 9.
awards discretionary year-end bonuses to employees who
achieve an annual performance rating of “exceeds
expectations” or “achieved excellence.”
Id. ¶ 12. These bonuses can take the form of
additional pay or time off. See id. ¶ 14;
[26-2] at 202. Performance reviews come from the
employee's first-line supervisor, and the regional and
deputy regional administrators make the final decision on
awarding bonuses.  ¶¶ 12-13. Plaintiff received
an above-standard performance rating and a time-off bonus in
2013. Id. ¶ 14. From 2014 to 2016, Plaintiff
received an “achieved expectations” rating, and
therefore did not qualify for a year-end bonus. Id.
Wulfkuhle, as Plaintiff's direct supervisor, reviewed
Plaintiff's performance during this period. See
id. ¶¶ 10, 12;  ¶ 24.
runs a regional Incident Management Assistance Team (IMAT)
comprised of various emergency management employees who
deploy in teams to disaster sites.  ¶ 15. Before
2013, IMAT had a dedicated, full-time staff; following a
restructuring, FEMA decided to staff IMAT with temporary
employees from across other departments. Id. In
facilitating this transition, FEMA had to offer all former
full-time IMAT employees new, permanent positions in FEMA and
seek volunteers from other departments. See id.
mid-2013, Preusse asked Plaintiff to volunteer for IMAT.
Id. ¶ 27. Plaintiff considered this a
“collateral duty” rather than a requirement for
his position. Id.; [26-2] at 17. Preusse attests
that he asked Plaintiff to volunteer because IMAT needed
someone with his skill-set and Plaintiff had no other
“substantive collateral duties at the time.”
[26-2] at 145. Plaintiff testified that he agreed to be on
IMAT because his conversation with Preusse suggested that
volunteering would help his promotion to the GS-13 level.
See [26-2] at 15, 17. In a November 2013 email, and
in a declaration submitted with his response, Plaintiff
declared that he felt “pressured into”
volunteering. [26-2] at 239; [33-1] at 2.
November 2013, Plaintiff was asked to deploy with IMAT and
emailed Wulfkuhle asking to be excused.  ¶ 28;
[26-2] at 239. According to Plaintiff, when he asked to be
removed from IMAT Preusse told him, “you know what this
is going to do to you, ” which Plaintiff interpreted to
mean that leaving IMAT would harm his chances of a promotion
to GS-13. [26-2] at 18. Around roughly the same time, and
possibly in 2012 and 2014, Plaintiff repeatedly complained to
Preusse and Wulfkuhle about the merit selection system in
place in his division-specifically mentioning his lack of
advancement and the division's failure to fill vacant
positions in the planning branch. See id. at 18-19.
Plaintiff believed Preusse's implied threat also stemmed
from his resentment of Plaintiff's complaints. See
id.;  ¶ 9.
end of 2013, Preusse granted Plaintiff's request to be
removed from IMAT.  ¶ 30. Plaintiff never deployed
to a disaster site while assigned to IMAT. Id.
Phillipson worked with Plaintiff as a program analyst in the
response division of the planning branch. Id. ¶
23. In 2013, Phillipson filed an equal employment opportunity
(EEO) complaint alleging age discrimination and retaliation.
Id. In February 2014, Plaintiff submitted a witness
affidavit supporting Phillipson's complaint. Id.
submitted the affidavit to Janel Fairchild, an investigator
contracted by FEMA for the administrative investigation.
Id. ¶ 25. Initially, Plaintiff did not share
the affidavit with anyone else. See id.;  ¶
26. On October 1, 2015, Plaintiff emailed Wulfkuhle to
express his ongoing dissatisfaction with his pay grade and
responsibilities. See  ¶ 26; [26-2] at
376-77. In that email-and in a conversation earlier that
day-Plaintiff referenced his affidavit in support of
Phillipson, as well as his belief that Wulfkuhle's
actions relating to Plaintiff's pay and responsibilities
constituted retaliation for that affidavit. See
[26-2] at 376. There is no evidence that Plaintiff told his
supervisors about the affidavit earlier than October 2015.
See  ¶ 26;  ¶ 26.
Alleged Retaliation and Discrimination in 2015
claims that the following incidents from 2015 represented
discrimination and/or retaliation on the part of DHS.
February 2015, Plaintiff left his personal identity
verification (PIV) card in his computer while he stepped away
from his desk.  ¶ 32. This represented a breach of
FEMA's IT security policies, which require employees to
log off computers whenever they leave their desks and to keep
their PIV card on them at all times. Id. ¶ 31.
An IT employee spotted Plaintiff's unattended PIV card,
removed it from his computer, and brought it to the security
office. Id. ¶ 32. When Plaintiff went to the
security office to retrieve his PIV card, he felt that the
security employee who had his card-Richard Amburgey-treated
him disrespectfully. Id. ¶¶ 33-34; 
¶ 34. Plaintiff “became more frustrated” and
“reached over” and said “just give me my
fucking ID.”  ¶ 34; [26-2] at 43. Plaintiff
felt that the IT employee and Amburgey had singled him out:
even though leaving his PIV card constituted a security
violation, Plaintiff testified that no one else in Region V
“ever had their ID pulled from their computer and
turned into security except me.” [26-2] at 43-44.
same day, Amburgey completed a “Security
Incident” form; Plaintiff also disclosed the incident
to Wulfkuhle and apologized to Amburgey. See 
¶¶ 32, 35-36; [26-2] at 278-79. Wulfkuhle consulted
with Preusse and Keith Johnson, an employee relations
liaison.  ¶ 36. Johnson asked Wulfkuhle to gather
information about the incident and various employees who had
witnessed the interaction submitted statements. Id.
Wulfkuhle sent the statements to Johnson, noting that this
was the first such incident involving Plaintiff. Id.
¶ 37. In March, Johnson told Wulfkhule to
“counsel” Plaintiff about the incident, and
Wulfkuhle did so. Id. Neither Wulfkuhle nor any
other supervisor took any additional action toward Plaintiff,
or added the incident to Plaintiff's personnel file.
2015, Plaintiff requested a “desk audit”-an
assessment of his job duties that he hoped would lead to a
reclassification of his position at the GS-13 level rather
than GS-12. See id. ¶ 38. Maya Scott, a human
resources specialist, conducted the audit, for which both
Plaintiff and Wulfkuhle completed questionnaires about
Plaintiff's work. Id. ¶¶ 39-40. In
September 2015, Elizabeth Hough, the chief of FEMA's
position management and classification branch, issued the
results of the desk audit, concluding that Plaintiff had been
correctly classified at GS-12. Id. ¶ 41.
Plaintiff disputed the result and argues that Wulfkuhle's
responses to the audit questionnaire were “completely
inaccurate” and “purposefully false.”
Id. ¶¶ 42-43;  ¶ 18. For example,
Plaintiff argues that Wulfkuhle failed to note that
Plaintiff's work included interagency coordination and
objects to Wulfkuhle's lack of detail in his responses.
See  ¶ 18; [26-2] at 329.
appealed the desk audit findings on September 23, asserting
in his appeal that Wulfkuhle's responses constituted
misconduct and “an act of reprisal” for
Plaintiff's support for Phillipson.  ¶ 44;
[26-2] at 359-60. Plaintiff directed his appeal to the Office
of the Chief Component and Human Capital Officer and the
Office of Special Counsel. [26-2] at 359.
November 3, 2015, Angela McGuirl, a human resources officer,
rejected Plaintiff's appeal because, pursuant to
FEMA's internal policies, classification determinations
are not appealable.  ¶ 45; [26-2] at 367. She
encouraged Plaintiff to discuss the situation with his
supervisor or pursue a grievance through his union's
bargained-for process. See [26-2] at 367. She also
submitted his letter to FEMA's Employee and Labor
Relations Branch, insofar as it represented a complaint about
Wulfkuhle's conduct. See id. at 367-68.
Plaintiff contests the 2015 appointment of Morgan Geiger to a
Region V project that Plaintiff had worked on. See
 ¶¶ 49, 64, 65. At some point that year,
Velasquez, the administrator for Region V, agreed to accept
Geiger on a one-year detail from DHS' finance office to
FEMA's Region V, during which time Geiger's salary
would be paid out of FEMA headquarters. Id. ¶
46. Geiger held a GS-15 position at the time. Id.
Geiger is older than Plaintiff. [26-2] at 59. Velasquez
informed Odeshoo and Preusse about the arrangement, and they
placed Geiger in the Region V planning branch because it was
short-staffed.  ¶ 47.
October 1, Wulfkuhle informed Plaintiff about Geiger's
detail and that Geiger would take over the Power Outage Annex
project that Plaintiff had been working on. Id.
¶ 48; [26-2] at 378. At the time, Plaintiff was working
on the Power Outage Annex project, the New Madrid Planning
project, and hazards and pandemic planning responsibilities;
he testified that this kept him “really busy.”
[26-2] at 57. Plaintiff objected to losing the Power Outage
Annex project because it was a “major” project
and he felt Geiger lacked relevant expertise. Id. at
58-59. But Plaintiff remained on New Madrid and the hazards
and pandemic planning tasks, and experienced no pay cut.
Id. at 59. Plaintiff felt that his removal from the
Power Outage project constituted retaliation for either: his
stated dissatisfaction with the merit selection system in
place in Region V; his statement in support of Phillipson; or
his complaints about Amburgey and Wulfkuhle following the PIV
card incident. Id. at 60. He said as much in an
email to Wulfkuhle that same day. [26-2] at 376-77. Plaintiff
also contends that the New Madrid project did not entail much
work in late 2015 since it was not expected to “kick
off until 2016, ” and claims that the shift in his
assignments affected his desk audit. See  ¶
addition to these incidents, Plaintiff identifies the alleged
pressure placed on him to join IMAT-discussed above-as an
example of discrimination and retaliation.  ¶¶
64-65. Plaintiff also claims that his failure to secure a
promotion to GS-13 before November 2015 constituted
discrimination and retaliation, see id., as
GS-13 Positions and Promotion
applied for four GS-13 positions between 2013 and 2015-three
in FEMA's mitigation division and one in ...