Smith v. D'Amico et al
Filing
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MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 5/22/2014.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT SMITH,
Plaintiff,
vs.
TONI PRECKWINKLE, in her official capacity as
Cook County Board President, and JAMES D’AMICO,
individually and as Director of Cook County
Department of Facilities Management,
Defendants.
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13 C 505
Judge Feinerman
MEMORANDUM OPINION AND ORDER
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.
Background
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
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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
*
Smith’s Local Rule 56.1(b)(3)(B) response disputes this factual assertion, but it does not cite
the record, and thus the County’s assertion is admitted. See Ammons v. Aramark Uniform Servs.,
Inc., 368 F.3d 809, 817-18 (7th Cir. 2004) (“[W]here a non-moving party denies a factual
allegation by the party moving for summary judgment, that denial must include a specific
reference to the affidavit or other part of the record that supports such a denial.”); Rush v.
MacArthur Found., 2014 WL 1797581, at *2 (N.D. Ill. May 6, 2014) (disregarding assertions in
the plaintiff’s Local Rule 56.1(b)(3)(B) response that failed to cite specific record material);
Erwin v. U.S. Dep’t of State, 2013 WL 6452758, at *1 (N.D. Ill. Dec. 9, 2013) (same).
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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, 523. Smith does not explain how those documents support his assertion that the job description
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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.
Discussion
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.
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“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
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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 AdelmanReyes 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 judgment on the part of the
employer; it is [a] lie, specifically a phony reason for some action.” Silverman v. Bd. of Educ. of
Chi., 637 F.3d 729, 733-34 (7th Cir. 2011) (alteration in original and internal quotation marks
omitted).
Even assuming that Smith made a prima facie case, he has not adduced evidence that
would allow a reasonable jury to find that the County’s proffered reason for not promoting him
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was pretextual. The County says that it based its decisions on Smith’s and the other candidates’
“resume[s], past experience, and answers to the interview panel’s questions,” Doc. 48 at 10; Doc.
54 at p. 9, ¶ 28, and the fact that Smith received the lowest interview score of any candidate,
Doc. 48 at 10; Doc. 54 p. 4, ¶ 14.
Smith’s belief that D’Amico improperly influenced his test scores and that he was
discriminated against based on his disability does not establish pretext. A plaintiff’s own
testimony can be enough to survive summary judgment, but only if it is based on the plaintiff’s
personal knowledge. See Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010)
(“[S]elf-serving testimony, if based on personal knowledge or firsthand experience, may prevent
summary judgment against the non-moving party, as such testimony can be evidence of disputed
material facts. But mere conclusory allegations do not constitute evidence.”) (internal quotation
marks and alterations omitted). Smith’s testimony regarding his beliefs is insufficient because he
has no personal knowledge of how the County handled test scores and has nothing, other than his
own uninformed belief, to show that D’Amico improperly influenced those scores or that he was
the victim of discrimination. See Johnson v. Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001)
(“Johnson’s subjective belief that she was better qualified than Bennett does not, without more,
demonstrate pretext.”). As noted above, the fact that a supervisor harbors personal animus
towards an employee with a protected characteristic does not permit an inference that an adverse
decision was based on that characteristic. See Overly v. KeyBank Nat’l Ass’n, 662 F.3d 856, 864
(7th Cir. 2011) (affirming summary judgment because the evidence “suggest[ed] that the conduct
was the result of personal animus towards [plaintiff], rather than … discrimination”).
Moreover, that Smith might have been qualified for the OE3 position does not allow a
reasonable inference that the County’s reason for its decision—that Smith had the lowest
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interview score among all the applicants—is a “lie” or “a phony reason.” Silverman, 637 F.3d at
733-34. Long-settled precedent holds that “where an employer’s proffered non-discriminatory
reason for its employment decision is that it selected the most qualified candidate, evidence of
the applicants’ competing qualifications does not constitute evidence of pretext unless those
differences are so favorable to the plaintiff that there can be no dispute among reasonable
persons of impartial judgment that the plaintiff was clearly better qualified for the position at
issue.” Milbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7th Cir. 2002); see also Stockwell v. City of
Harvey, 597 F.3d 895, 907 n.9 (7th Cir. 2010) (same); Hobbs v. City of Chicago, 573 F.3d 454,
462 (7th Cir. 2009) (same); Stephens, 569 F.3d at 788 (same). Smith does not even come close
to making the required showing.
The County says that it did not interview Smith for the OE3 position that opened in
November 2012 because he did not attach his CFC card to his application, which was “explicitly
required on the job posting.” Id. at p. 6, ¶ 21. In response, Smith insists that he had a CFC card.
That may be true, but the job posting required that the CFC card be submitted with the
application, and Smith’s failure to do so provides a legitimate basis for the County’s decision not
to interview him; the County was entitled to conclude that it would interview only those
applicants who were able to follow instructions and submit a compliant application. See
Schaffner v. Glencoe Park Dist., 256 F.3d 616, 622 (7th Cir. 2001) (“As its third reason for not
promoting Schaffner, the Park District argues that her handwritten resume and cover letter were
unprofessional. … It is reasonable for an employer to hire an applicant based on the professional
manner in which he presents himself for consideration, or to decide not to hire someone based on
a lack of professionalism. We have repeatedly stated that we do not sit as a super-personnel
department over an employer, and that well-worn maxim applies here.”).
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Conclusion
Smith claims that decisionmakers at the County declined to promote him to a higher
operating engineering position not because he had received the lowest interview score of any
applicant, but because he has a bad ankle and a bad Achilles tendon and because one of his legs
is a half-inch shorter than the other leg. Smith has not adduced evidence sufficient for a
reasonable jury to find for him on that claim. Accordingly, the County’s motion for summary
judgment is granted.
May 22, 2014
United States District Judge
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