Henderson v. Shulkin
Filing
44
MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 12/14/2016: Mailed notice (mw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES HENDERSON,
)
)
Plaintiff,
)
)
v.
)
)
ROBERT A. MCDONALD, as Secretary, )
U.S. Department of Veterans Affairs,
)
)
Defendant.
)
No. 15 C 4445
MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District 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.
BACKGROUND
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
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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 His authorization to carry a weapon was rescinded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.
LEGAL STANDARD
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
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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).
DISCUSSION
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
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“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)).
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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 out of the fifteen resumes that were received and thus he was not one of
the candidates that progressed to the interview stage. (RSF Par. 60).
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Henderson contends that Marsh did not select him for the Criminal
Investigator position because of Henderson’s race. Henderson presents a variety of
evidence regarding other employees and other matters not connected to Henderson in
an attempt to paint Marsh as someone who generally discriminated against AfricanAmericans. Henderson’s evidence falls short of being sufficient to show such
animus to a reasonable trier of fact. Even if Henderson had been able to present such
evidence, it is undisputed that Henderson’s name was not before Marsh for
consideration during the final stage of the selection process. (RSF Par. 63-64). It is
undisputed that Marsh made the final selection, but did so only from the remaining
pool of applicants that were presented to him from the list of applicants. (RSF Par.
63-64). It is also undisputed that according to the scoring in the selection process,
Kolbe had the highest score of all the applicants. (RSF Par. 63).
Henderson does not point to evidence showing that any of the panel members
knowingly sought to discriminate against him unlawfully or sought to identify
Henderson’s anonymous application in order to prejudice him. Nor can Henderson
proceed to trial in the absence of such evidence and ask the trier of fact to merely
speculate as to such matters. See Citizens for Appropriate Rural Roads v. Foxx, 815
F.3d 1068, 1077 (7th Cir. 2016)(reiterating that “summary judgment is the ‘put up or
shut up’ moment in a lawsuit”)(quoting Siegel v. Shell Oil Co., 612 F.3d 932, 937
(7th Cir. 2010)). It is undisputed that at least one of the three finalists that proceeded
to the second stage of the selection process and was part of the pool considered by
Marsh was an African-American. (RSF Par. 61-62).
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Henderson contends that the selection process was a sham because the VA had
certain preconceived notions as to the appropriate candidates, which he contends
would have effectively limited the applicant pool to himself and Kolbe. According
to Henderson, the VA cancelled the certificates for the Criminal Investigator position
prior to a merit promotion being made so that no selection was made off of the Job
Vacancy Announcement for Criminal Investigator. Henderson contends that the VA
intended the Criminal Investigator position to be filed by a current Hines employee.
(RSF Par. 17). In support of his position, Henderson cites to the deposition
testimony of Brian Cross (Cross), an email from Cross, and a position checklist.
(RSF Par. 170). However, the declaration provided by Cross and the other
documentary evidence in this case clearly shows that outside candidates were
considered and that the position checklist did not control in any way the scope of the
candidates. For example, in the email from Cross himself, which is cited by
Henderson, Cross specifically stated that the VA would accept applications from
disabled veterans “outside” of Hines. (P Ex. 24). The fact that outside candidates
were considered is further illustrated by the fact that two of the three finalists during
the selection process were from outside the VA. (D Ex. 15, 16). Henderson has not
pointed to sufficient evidence for a reasonable trier of fact to conclude that the
candidates were limited to current employees at Hines.
Henderson also argues that the VA had decided only to consider applicants on
the G-11 certificate. (RSF Par. 17). However, it is undisputed that in the job
announcement for the Criminal Investigator position the position was graded at and
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announced at the GS-9 level, with promotion potential up to the GS-11 level. (RSF
Par. 15). The undisputed record shows that the position was rated to be filled at
either the GS-9 level or GS-11 level and that certificates were issued for both levels
for both outside and internal candidates. (RSF Par. 15). Henderson cites to
deposition testimony of Marsh to show that only a GS-11 certificate would suffice
for the position. (RSF Par. 17). Marsh, however, merely testified that if he had a
candidate before him at the GS-11 level he would select that candidate. (Marsh Dep.
46-47). Marsh did not state that lower level candidates would not be considered or
that he would refuse to select an applicant if presented with a pool of candidates that
did not contain a GS-11 level candidate. Nor has Henderson shown that Kolbe or
other candidates were ineligible for promotion to GS-11 level if chosen.
Henderson also argues that the job posting and selection process are irrelevant
because Kolbe’s promotion was ultimately processed under the Veterans
Recruitment Appointment (VRA). Henderson contends that Defendant had
previously indicated that Kolbe had been promoted via a merit promotion procedure.
However, the appointment authority used for Kolbe has no connection to the motive
for his promotion, which is the issue before this court, not the administrative means
to carry out the promotion. Nor does the administrative means of the promotion call
into question the neutrality of the selection process. Marsh in fact testified
consistently that he was merely concerned with picking the best candidate and was
not concerned with the means that the Human Resources Department used to
effectuate the promotion. (Marsh Dep. 17).
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Henderson also contends that some of the panel that reviewed the resumes
might have recognized his resume. However, it is undisputed that the only panel
member who indicated that she thought that she recognized Henderson’s resume
actually gave him the highest score of any of the three panelists. (RSF Par. 26, 28,
29, 30, 36, 40). Thus, there is no indication by such evidence that Henderson was
somehow prejudiced by recognition during the selection process. If anything, such
evidence would imply that Henderson could have been unfairly benefitted by
recognition. Henderson also contends that a few panel members may have
recognized Kolbe’s resume. However, the undisputed facts do not indicate that
Henderson lost the position to Kolbe. Even if Kolbe was not selected, there were
five other applicants who scored better than Henderson and there is no reasonable
justification for Henderson’s belief that he was somehow the prime candidate in
Kolbe’s absence. Henderson is bringing the instant action on his own behalf, not on
behalf of other applicants.
Henderson also contends that there were shifting explanations for the decision
not to select him. However, the undisputed facts clearly show that he participated in
the neutral selection process with two panels making determinations and nothing in
the record shows an inconsistency in the selection process or in the ultimate choice
of Kolbe who had the highest score. Henderson did not simply lose the position to
Kolbe. The undisputed facts show that he was not even the sixth best candidate
based on the scoring system in place before resumes were submitted. Henderson
contends that the VA changed its position as to the means of Kolbe’s promotion.
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Such an argument fails to address the primary pertinent issue, which is why
Henderson was not advanced passed the first stage of the selection process.
Henderson also makes a variety of arguments as to why he believes he was
more qualified than Kolbe. Henderson highlights what he believes are his strong
points in his experience and resume and criticizes Kolbe for what Henderson
perceives as the weaknesses in Kolbe’s experience and resume. This action,
however, is not a venue that affords Henderson the opportunity to have the selection
process second-guessed and to show a wiser choice would have been him. See Riley
v. Elkhart Cmty. Sch., 829 F.3d 886, 895 (7th Cir. 2016)(stating that a “court is not a
super personnel department that second-guesses employers’ business
judgments”)(internal quotations omitted)(quoting Millbrook v. IBP, Inc., 280 F.3d
1169, 1180 (7th Cir. 2002)). There is no evidence in the record that would indicate
Henderson was any more qualified for the position than Kolbe based on a
consideration of all the pertinent factors. In fact the undisputed facts show that the
panel and Marsh had ample justification for selecting Kolbe. Although Henderson
indicates that he would have chosen differently, Henderson must point to evidence of
intentional discrimination based on race rather than evidence that he believes shows
that Defendant made an unwise decision. Thus, Henderson cannot defeat
Defendant’s motion for summary judgment on the Title VII discrimination claim
under the Ortiz reasonable factfinder method.
B. McDonnell Douglas Burden-Shifting Method
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Henderson also argues that he can proceed under the McDonnell Douglas
burden-shifting method. Under that method, for a failure-to-promote claim, a
plaintiff must first establish a prima facie case by showing: (1) that he “was a
member of a protected class,” (2) that he “applied for and was qualified for the
position sought,” (3) that he “was rejected for the position,” and (4) that “the
employer promoted someone outside the protected group who was not better
qualified than the plaintiff.” Johnson v. Gen. Bd. of Pension & Health Benefits of
United Methodist Church, 733 F.3d 722, 728-29 (7th Cir. 2013). If the plaintiff
establishes a prima facie case, “the burden shifts to [the employer] to give a
legitimate, nondiscriminatory reason for” its actions, and if such a reason is given,
“the burden shifts back to [the plaintiff] to offer evidence that [the employer’s]
reason is mere pretext for unlawful discrimination.” Chaib v. Geo Grp., Inc., 819
F.3d 337, 342 (7th Cir. 2016).
Defendant argues that even if Henderson could establish a prima facie case,
Henderson cannot show that the reason given for not choosing him for the Criminal
Investigator position was a pretext. As indicated above, the undisputed facts indicate
that an extensive selection process was used that included two separate panels in
order to arrive at a selection for the Criminal Investigator position. The undisputed
facts further show that although Henderson claims Marsh harbored an animus against
him because of his race, Henderson was eliminated from the selection process before
Marsh made the final selection. Defendant has presented ample evidence that has
not been contradicted by Henderson indicating that the panel members all acted in
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good faith in scoring the applicants during the selection process. Marsh ultimately
chose the applicant who was scored the highest by the panel members. Therefore,
Defendant’s motion for summary judgment on the Title VII discrimination claim is
granted.
III. ADEA Discrimination Claim
Defendant moves for summary judgment on the ADEA discrimination claim.
A plaintiff who is bringing an ADEA discrimination claim and is seeking to defeat a
defendant’s motion for summary judgment may generally proceed under the same
standards applied to Title VII claims. See Nagle v. Vill. of Calumet Park, 554 F.3d
1106, 1114 n.3 (7th Cir. 2009)(stating that the court “appl[ies] the same analytical
framework to employment discrimination cases whether they are brought under the
ADEA or Title VII”); Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir.
2006)(providing that ADEA claims were subject to the same standards that were in
effect at that time for Title VII claims). In the ADEA context, for the similarlysituated employee requirement for the McDonnell Douglas burden-shifting method, a
plaintiff must show that “similarly situated, substantially younger employees were
treated more favorably.” Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 609 (7th Cir.
2012)(quoting Franzoni v. Hartmarx Corp., 300 F.3d 767, 771-72 (7th Cir. 2002)).
Henderson points to no evidence in regard to any animus against him because
of his age that would warrant any different result than the claims based on his race.
Although he claims that Kolbe is younger than him, he has failed to point to
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sufficient evidence to show that the extensive selection process involved any
unlawful discrimination. Henderson has not pointed to sufficient evidence to defeat
Defendant’s motion under the Ortiz reasonable factfinder method. In regard to the
McDonnell-Douglas burden-shifting method, Henderson has again failed to point to
sufficient evidence to show that the reason given for not selecting him for the
Criminal Investigator position was a pretext. Therefore, Defendant’s motion for
summary judgment on the ADEA discrimination claim is granted.
IV. Retaliation Claims
Defendant moves for summary judgment on the retaliation claims. As
indicated above, the undisputed facts show that there is not sufficient evidence that
would indicate other than that the selection process was other than a neutral process
without any unlawful prejudice. Although Henderson claims that Marsh had prior
knowledge of Henderson’s earlier complaints of discrimination, Henderson has not
pointed to evidence that any of the panel members who determined that Henderson
should not proceed further in the selection process were aware of the prior
complaints. Henderson has not pointed to sufficient evidence to defeat Defendant’s
motion for summary judgment on the retaliation claims under either the Ortiz
reasonable factfinder method or the McDonnell Douglas burden-shifting method.
Therefore, Defendants’ motion to dismiss the retaliation claims is granted.
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The court also notes that Henderson has filed a motion for sanctions, which
this court indicated that it would deem a sur-reply in this matter. Henderson has not
shown that sanctions are warranted in this matter.
CONCLUSION
Based on the foregoing analysis, Defendant’s motion for summary judgment is
granted.
___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: December 14, 2016
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