Vargas v. Price

Filing 82

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr on 2/23/2021 Emailed notice(cdh, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID VARGAS,
Plaintiff,
v.
THOMAS E. PRICE,
Defendant.

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Case No. 17-cv-6481
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
After not being promoted for two separate vacancies, David Vargas (“Plaintiff”) filed this
suit against his former employer, alleging discrimination and retaliation claims under Title VII and
the Age Discrimination in Employment Act. [22, at 5–10]. Defendant1 moved for summary
judgment. [66]. For the reasons explained below, Defendant’s motion for summary judgment
[66] is granted in part and denied in part. Specifically, the Court grants Defendant’s motion with
respect to Plaintiff’s retaliation claim regarding the first promotion process and all claims related
to the second promotion process. The Court denies Defendant’s motion with respect to Plaintiff’s
discrimination claims regarding the first promotion process and with respect to retaliation claims
arising out of conduct occurring after Plaintiff’s 2016 EEO complaint. The case is set for a
telephonic status hearing on March 12, 2021, at 9:45 a.m. Call-in details will be provided in a
separate minute order.

1

Currently, Norris Cochran is serving as the acting Secretary of Health and Human Services. Pursuant to
Fed. R. Civ. P. 25(d), he is automatically substituted for Thomas E. Price as Defendant in this action.

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I.

Background
These facts are taken from the parties’ respective Local Rule 56.1 statements and

supporting exhibits [67; 75; 80]. Courts are also entitled to consider any material in the record,
even if it is not cited by either party. Fed. R. Civ. P. 56(c)(3). In evaluating a motion for summary
judgment, the Court construes all facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827 F.3d 699, 704
(7th Cir. 2016). “When we cite as undisputed a statement of fact that a party has attempted to
dispute, it reflects our determination that the evidence cited in the response does not show that the
fact is in genuine dispute.” NAR Business Park, LLC v. Ozark Automotive Distributors, LLC, 430
F. Supp. 3d 443, 446–47 (N.D. Ill.) (quotation marks and citation omitted).
Plaintiff is a Hispanic male born in 1970. [75, at 1 ¶ 2]. From 2010 to 2020, Plaintiff
worked for the Food and Drug Administration’s (FDA) Office of Criminal Investigations (OCI)
as a Special Agent, GS-13 Criminal Investigator, in the Chicago Field Office. [Id., at 1 ¶ 1; 75-5,
at 89]. Special agents at the Chicago Field Office are divided into two squads, with one Assistant
Special Agent in Charge (ASAIC) serving as the agents’ first-line supervisor. [75, at 2¶ 3]. The
ASAICs report to the Special Agent in Charge (SAIC), who acts as the agents’ second-line
supervisor. [Id.].
A.

Plaintiff’s 2014 EEO Activity

In December 2014, William Conway was Plaintiff’s ASAIC. [Id., at 2 ¶ 5]. In December
2014, Plaintiff filed an EEO charge against Conway, alleging that he had “been the target of
constant scrutiny” and “harassment” by Conway and that he is “Hispanic and feel[s] that this also
is a factor in the harassment.” [67-7, at 23]. The EEO notified Conway of this charge on December

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29, 2014. [Id., at 28]. Plaintiff withdrew his complaint on February 3, 2015. [Id., at 25]. Conway
is now Plaintiff’s SAIC. [75, at 2¶ 3].
B.

First ASAIC Vacancy

In 2015, two of the three managers at the Chicago Field Office retired. [Id., at 3 ¶ 7]. Mark
McCormack, who is a SAIC at the Metro Washington Field Office [67-4, at 127, 5:5–6],2 served
as an acting SAIC in the Chicago Field Office from November 2015 to February 2016 [67-4, at
129, 10:22–11:6]. McCormack non-competitively placed Agent Ronne Malham, a white male,
into an ASAIC position at the Chicago Field Office in an acting capacity for roughly two weeks
in February 2016. [80, at 3–4 ¶ 4; 73-3, at 7, 18:6–17); 67-3 at 8]. The FDA’s Merit Promotion
Plan requires temporary promotions of more than 120-days to be filled through a competitive
process. [75-4, at 3]. As such, OCI Headquarters sent an email to all agents to determine if anyone
would be interested in a temporary detail to the ASAIC position. [67-3, at 8]. Plaintiff, Malham,
and Jose Sanchez, who is Hispanic, applied for the position. [75, at 8 ¶ 3]. On February 18, 2016,
an interview panel that included McCormack conducted an interview for the temporary position.
[67-3, at 8; 75, at 3 ¶ 8]. The panel selected Malham for the 120-day acting ASAIC detail. [75, at
3 ¶ 8]. Prior to this interview, McCormack and Conway met with Malham to coach him “on how
to respond to interview questions and how to prepare for the application process.”3 [75-3, at 132].
Malham served as acting ASAIC from March 2016 through June 2016. [67-4, at 154].

2

When the Court cites to depositions, the first page of the citation (here, 127) cites to the page of the exhibit
as docketed (here, 67-4). The subsequent citations refer to the page and line number of the depositions.

3

McCormack and Mahlam denied that any coaching took place [67-4, at 130, 15:6–7; 67-3, at 3], and
Defendant argues that Plaintiff’s evidence in support of this fact is without foundation and inadmissible as
hearsay [80, at 4]. Plaintiff relies on an affidavit from Adam Humeniak, a former special agent in the
Chicago Field Office, stating:
Prior to Ronne Malham being selected for the ASAIC position Conway and Mark
McCormack met with him with him in Malham’s office. The walls are thin and I could

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OCI accepted applications for the permanent ASAIC position in May 2016. [67-5, at 2].
From these applications, a list of certified candidates was generated, which consisted of three
internal candidates: Plaintiff, Malham, and Sanchez. [67-5, at 8–9]. Relevant here, Plaintiff’s
resume demonstrates that he had been a special agent at OCI since 2010, and his resume has two
short paragraphs describing his work. [67-6, at 2]. He worked for the Drug Enforcement Agency
(DEA) from 1996–2010, serving as a supervisory special agent from 2006–2010. [Id., at 2–3].
Malham’s resume listed that he had been an acting ASAIC at OCI since February 2016. [67-5, at
39]. Prior to that, he was an OCI special agent from 2007–2016, a Department of Homeland
Security (DHS) special agent from 2001–2007, and an investigator at Cole Taylor Bank from
1999–2001. [Id., at 40–42]. In 2006, he was a “Group Leader” for the “Counterfeit Squad” at
DHS. [Id., at 41].
On June 8, 2016, all three candidates were interviewed by George Karavetsos, the OCI
Director, Catherine Hermsen, then SAIC of the Kansas City Field Office, Thomas South, SAIC of
Headquarters Operations, and McCormack. [75, at 4 ¶ 10]. McCormack explained that he
considered the candidates on “an even playing field” and “starting * * * from the same spot” before
the interviews. [67-4, at 135, 34:8–20]. The FDA’s Merit Promotion Plan gives “[m]anagement
officials * * * the right to select or non-select from among a group of properly evaluated and

hear Malham being coached on how to respond to interview questions and how to prepare
for the application process.
[75-3, at 132]. As to foundation, Humeniak explained that he directly overheard the coaching. See Fed. R.
Civ. P. 56(c)(4) (explaining that affidavits must “made on personal knowledge”). As to hearsay,
Humeniak’s averment does not contain an of court statement, as it does not quote what anyone said. Even
assuming that it does, “an out-of-court statement is not hearsay—and is generally admissible—if it is not
offered to prove the truth of the matter asserted.” Lovelace v. McKenna, 894 F.3d 845, 849 (7th Cir. 2018).
Here, Plaintiff does offer Humeniak’s averment to prove that whatever was said between McCormack,
Conway, and Malham is true; instead, Plaintiff offers the averment to prove that McCormack and Conway
coached Malham.

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certificated candidates.” [75-4, at 19]. It “encourage[s]” but does not require interviews. [Id.]. If
an interview process is used, it must “be fair, equitable and justifiable.” [Id.]. The interview lasted
about 15 minutes and consisted of six questions. [67-3, at 6–7]. The interview panel did not use
a scoring system or have a set of objective factors used to evaluate the candidate. [67-4, at 135,
35:2–5; 75-2, at 34, 127:22–128:4]. After the interviews, each panel member stated who they
thought the best candidate was, and Plaintiff’s name was never mentioned. [67-4, at 135, 34:22–
35:1; 75-2, at 34, 128:5–12].
In November and December 2016, as part of an EEO investigation, South, Hermsen, and
McCormack each completed an affidavit explaining why they selected Malham. [See 67-3, at 14–
38]. In his, South emphasized that the interviews were “key because applicants must articulate
how they will perform their supervisory responsibilities and motivate the agents who work for
them to understand and implement agency priorities.” [67-3, at 16]. He stated that the “ability to
articulate OCI’s investigative priorities [was] very important.” [Id.]. And he explained that the
“four interviewers were in unanimous agreement that Mr. Malham was the best candidate because
he was able to articulate OCI investigative priorities and how he would implement those
priorities.” [Id., at 17]. South explained that Plaintiff was not better qualified than Malham despite
Plaintiff’s DEA supervisory experience because Plaintiff “did not explain how his supervisory
experience at DEA would cross over to his work at OCI.” [Id., at 18].
In her affidavit, Hermsen also emphasized the importance of the interview, stating that
Malham was selected because his interview responses “were far superior” and that he “had the
vision and ability to articulate how he would lead special agents in the field office.” [Id., at 26].
In contrast, she described Plaintiff’s answers as “very vague” and explained that Plaintiff “talked
about general ideas but was not able to articulate any specifics about the agency priorities or ways

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to keep the agency relevant in pursuing these priorities.” [Id.]. She also explained that “[b]eing a
supervisor at one agency does not necessarily transfer to being a supervisor with another agency.”
[Id.].
McCormack’s affidavit stated that he made his hiring “recommendations based on the
resumes and interview responses.” [Id., at 34]. He explained that Malham “provided a strong
interview performance and a clear articulation of an understanding of OCI investigative priorities”
and how he, “as a first line supervisor[], if selected, would implement those priorities and would
lead their subordinate employees.” [Id.]. In contrast, he stated that Plaintiff’s “presentations were
not as articulate and he seemed to rely heavily on the fact that he had been a supervisor while
working at the” DEA but did not “explain how that supervisory experience was relevant to OCI’s
mission and priorities.” [Id.].
As part of this lawsuit, South, Hermsen, and McCormack also sat for depositions in 2019,
three years after the interview. At that point, each had forgotten the specifics of the interview to
varying degrees. For example, South did not remember the interviews, but explained that his 2016
affidavit was accurate. [75-2, at 37–38, 140:23–141:6, 144:3–12]. Hermsen could not remember
specific questions or answers, but she recalled that Malham “was extremely well prepared for the
interview” and was able to discuss the agencies priorities. [67-2, at 87, 89, 94, 44:19–45:7, 52:6–
14, 70:11–18]. In contrast, she recalled that Plaintiff “wasn’t able to answer the questions” and
that his “was not a good interview.” [Id., at 93, 66:15–21]. During his deposition, McCormack
could not recall any specific interview questions or answers or why Malham and Burdelik were
more qualified than Plaintiff. [67-4, at 132–33, 22:12–21, 26:3–14]. McCormack emphasized that
he “stands[s] by what [he] had written” in the affidavit. [Id., at 139, 50:6–8]. He explained that
although Plaintiff had previous supervisory experience with the DEA, he did not weigh that

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experience heavily because Plaintiff “did not explain the relevance of that experience to OCI and
OCI’s mission.” [Id., at 139, 50:11–17].
C.

Second ASAIC Vacancy

On June 26, 2016, Conway was promoted to a SAIC position at the Chicago Field Office,
creating another ASAIC vacancy. [75, at 9 ¶ 18]. On July 13, 2016, the FDA announced this
position, and seven OCI agents applied to it and were certified as eligible for the position by the
FDA Office of Human Resources, including Plaintiff, Sanchez, Michael DeLeon, and Lynda
Burdelik. [Id., at 9–10 ¶ 19]. Plaintiff used the same resume for this application. [Id., at 10 ¶ 20].
Relevant here, Burdelik’s resume reflected that she began working as a special agent at OCI in
2008. [67-6, at 9]. Prior to that, she was a special agent in the United States Secret Service from
1997 to 2008. [Id., at 11]. While there, she served as the group leader of the “Protective
Intelligence Squad/Operations Squad.” [Id., at 12].
On August 12, 2016, all seven applicants were interviewed by Hermsen, who was by then
Acting Deputy Director of OCI, McCormack, and Conway. [75, at 11 ¶ 23]. South recused
himself from the interview panel because he knew that Plaintiff had filed an EEO complaint about
the first promotion process. [Id., at 17 ¶ 33]. He remained part of the process as the “selecting
official,” but he did not have any authority to reject the interview panel’s recommendations. [752, at 11, 37:11–14]. Hermsen “may have been” aware of Plaintiff’s EEO complaint prior to the
August 2016 interviews. [67-2, at 97, 85:4–22]. The panel asked the same six questions as the
previous ASAIC interview. [75, at 11 ¶ 23; 67-3, at 6]. After the interviews, the panel members
stated who they thought should be promoted. [67-2, at 110, 137:18–22]. Hermsen thought DeLeon
should be promoted, and McCormack and Conway thought Burdelik should be promoted. [Id., at
111, 138:8–139:6]. Burdelik was initially Hermsen’s “close number two.” [Id., at 111, 139:8–

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10]. Hermsen, McCormack, and Conway talked through DeLeon’s and Burdelik’s answers to
interview questions, experiences, and backgrounds, and they came to the consensus that Burdelik
should be promoted. [Id., at 111, 141:6–17].
Hermsen’s and McCormack’s affidavits also explained their reasoning for selecting
Burdelik. [67-3, at 22–38]. Conway completed a similar affidavit in November 2016. [67-4, at
2–8]. Hermsen explained that the panel selected Burdelik because in her “responses she was able
to articulate how she would fulfill her duties” and because Burdelik had a “clear idea of the agency
priorities and was able to articulate her vision for keeping the agency relevant.” [67-3, at 26]. She
explained that in Plaintiff’s second interview, “some of his answers were not responsive to the
questions,” “[h]e spoke in very general terms,” and he “was not able to cite any specific examples
for moving the office forward.” [Id.]. In his affidavit, McCormack explained that Burdelik was
selected because she “gave clear, articulate, meaningful and relevant responses to every question
asked” and that she had “a strong interview performance and a clear articulation of an
understanding of OCI investigative priorities.” [Id., at 34]. He indicated that Plaintiff’s interview
for this position was similar to his first interview, and that his “presentations were not as articulate
and he seemed to rely heavily on the fact that he had been a supervisor while working at the” DEA
but did not “explain how that supervisory experience was relevant to OCI’s mission and priorities.”
[Id., at 35].
In his affidavit, Conway explained that he was the direct supervisor of Plaintiff and
Burdelik for the two years prior to the selection process and was therefore familiar with their work.
[67-4, at 5]. His assessments of Burdelik and Plaintiff are based more on this familiarity than their
interview responses. He explained that Burdelik exhibited leadership qualities and a “thorough
knowledge of FDA laws and policies,” that he has “complete faith in her ability to perform her

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work without a lot of direction,” that she has “good verbal and written communication skills,” that
“[s]he is respected by her peers and superiors,” and that she “has shown the ability to work with
others both within and outside the Agency.” [Id.]. In contrast, Conway explained that Plaintiff
did not exhibit as thorough knowledge of FDA laws and policies, that Plaintiff “needs direction to
complete assigned tasks,” that his “work typically has grammar and spelling errors and his reports
need editing,” that his “work is often submitted late,” and that Plaintiff “does not have the respect
of many of his co-workers.” [Id.]. Conway noted that “[t]here are agents who will not work with
[Plaintiff] unless directed by a supervisor to do so.” [Id.]. Although he described his experience
working with both Burdelik and Plaintiff, Conway also averred that Burdelik was selected because
“[t]he interview panel was in unanimous agreement that she best met the qualifications [they] were
looking for.” [Id., at 4].
As with the interviews for the first vacancy, the interview panelists could not recall the
details from the second interview during their depositions three years later. Hermsen explained
that her “general overall recollection” was that Burdelik had “a very good interview,” “had a vision
for supervising people,” and that her “qualities as a * * * leader came out in the interview.” [672, at 103, 106:1–15]. McCormack explained that he did not remember the interview but that he
“stand[s] by what [he] had written in his affidavit.” [67-4, at 139 50:5–18]. Conway did not
remember the interview questions or specific answers. [80, at 12 ¶ 23]. He also explained that
based on his experience supervising Plaintiff, Plaintiff was not qualified for a supervisor position.
[67-4, at 38, 107:10–14]. At one point during his deposition, Conway agreed that he would not
have recommended Plaintiff “no matter how well he did at th[e] interview.” [Id.]. Later, however,
he suggested that he may have recommended Plaintiff had Plaintiff “hit it out of the park” in the
interview. [Id., at 39, 112:6–10].

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D.

Plaintiff’s 2016 EEO Activities

On July 22, 2016, Plaintiff contacted an FDA EEO counselor alleging that he was not
selected for the first vacancy because of his race, age, national origin, and “on the basis of
retaliation.” [67-8, at 3–4]. On September 7, 2016, he filed a formal complaint alleging that he
was not selected for the first vacancy “based on age, race, [and] national origin” and that he wasn’t
selected for the second vacancy “based on age, race, national origin, and reprisal/retaliation.” [Id.,
at 11]. He also alleged that OCI “has a pattern of discriminating against minority applicants with
regards to hiring and promotions for supervisory positions.” [Id.]. On June 13, 2017, the EEO
issued a final agency decision determining that Plaintiff was not discriminated or retaliated against.
[Id., at 19].
E.

Pattern or Practice of Discrimination and Retaliation

Plaintiff claims that OCI has a pattern or practice of discrimination and retaliation. In
support, he first cites to a 2018 Department of Health and Human Services Midwest Area Office
employee viewpoint survey. [75, at 27–28 ¶ 3]. In it, roughly 65% of eleven employees at the
Chicago Field Office4 indicated that they either disagreed or strongly disagreed with the statement
“I can disclose a suspected violation of any law, rule or regulation without fear of reprisal.” [752, at 90, 97]. Thirty-nine percent of respondents disagreed or strongly disagreed with the statement
“Prohibited Personnel Practices * * * are not tolerated.” [Id., at 90, 101].
Next, Plaintiff recounts to two incidents involving Sanchez, who is Hispanic and filed an
EEO complaint about the promotion processes. First, Plaintiff asserts that Sanchez was placed on
restricted duty and forced to undergo a fitness-for-duty evaluation due to a health issue, whereas

4

The survey identifies this subgroup as the “Midwest Area Office” of the “OFC of Criminal Investigations”
of the FDA. [75-2, at 97]. The parties discuss this survey as providing data specific to the Chicago Field
Office. [80, at 3].

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Conway was unable to carry a firearm because of medical issues but was not placed on restricted
duty. [80, at 16 ¶ 33]. Second, Plaintiff claims that Sanchez was suspended for 14-days for
inadvertently sharing the name of an individual involved in a grand jury investigation with
someone outside of OCI, but when a white employee did the same, OCI took no action. [Id., at 17
¶ 34].
Plaintiff also explains that another special agent, Adam Humeniak,5 claims that he was
retaliated against after contacting the EEO to make a reasonable accommodation request and after
providing an affidavit for Plaintiff’s EEO complaint. [75-3, at 133–34]. An investigative analyst
at the Chicago Field Office stated that she once asked Conway if the reason she’s “treated
differently” was because she’s “not Secret Service” or “because [she’s] Black.” [75-6, at 20].
Conway responded by “rais[ing] his voice and pointing his finger in [her] face.” [Id.]. Two
Hispanic special agents in the New York Field Office reported that they believed a white candidate
for an ASAIC position was unfairly prepared for the selection process. [75-6, at 25, 30]. However,
neither explained the basis for these believed; one of the agents also applied to the second ASAIC
vacancy in Chicago and stated that he did not believe that his Hispanic national origin had a role
in the panel’s decision to not select him. [Id., at 30].

5

In his affidavit, Humeniak also states that “knowing [Plaintiff’s] work experience,” he “believe[s] the fact
that [Plaintiff is] Hispanic was a factor” in Plaintiff not being promoted. [75-5, at 133]. He also states that
he “heard Conway say he did not like [Plaintiff’s] mannerism, his gestures or his ‘fucking’ face” and that
he felt “Conway’s comments were related to [Plaintiff] being Hispanic.” [Id., at 134]. However, nothing
in Humeniak’s statement explains how or why he thought that Plaintiff’s non-promotions or Conway’s
actions were based on Plaintiff’s national origin. And the Seventh Circuit has explained that “[c]onjecture,
speculation, references to matters outside the [affiant’s] personal knowledge, conclusory statements and
bare assertions of the general truth of a particular matter will not suffice to withstand a properly supported
motion for summary judgment.” Box v. A & P Tea Co., 772 F.2d 1372, 1378 (7th Cir. 1985) (alterations
in original); see also Rand v. CF Indus., Inc., 42 F.3d 1139, 1146 (7th Cir. 1994) (“Inferences and opinions
must be grounded on more than flights of fancy, speculations, hunches, intuitions, or rumors, and
‘[d]iscrimination law would be unmanageable if disgruntled employees * * * could defeat summary
judgment by affidavits speculating about the defendant’s motives.’” (alterations in original) (quoting Visser
v. Packer Eng’g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991)). Accordingly, the Court does not consider
these statements from Humeniak when ruling on Defendant’s motion for summary judgment.

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F.

Post-Hiring-Process Events

On September 1, 2016, Conway sent an officewide email with the subject “Morale Issues.”
[67-7, at 4]. In it, he asks for his staff to inform him of the sources of office moral problems, either
by email or anonymously, and he explains that he “need[s] to respond to an undercurrent of
negativity that his harming the office.” [Id.]. On September 22, 2016, Conway held an officewide
meeting where he read a statement and provided all in attendance with two handouts, one entitled
“12 of the Most Toxic Employees” and the other entitled “9 Toxic Employees You Should Fire
Right Now.” [75, at 21 ¶ 42]. His statement covered the recent promotions of Malham and
Burdelik, dissatisfaction with Headquarters’ case selection and priorities, the perceived favoritism
in OCI toward former U.S. Secret Service Agents, and caseloads. [75, at 21–22 ¶ 43; 67-4, at 50,
155:10–11; 75-5, at 81–84]. With regard to the promotions, he stated that he could not discuss the
promotion process, explained that “there are legal remedies if you feel you were wronged,” and
asked employees to stop complaining about the promotions. [75-5, at 81]. He closed the meeting
by stating that “there are management options for dealing with those who are poisoning the
workplace.” [Id., at 84]. In his deposition, Conway explained that the meeting was directed to the
entire office. [67-4, at 52, 165:9–21]. Plaintiff felt that the meeting was directed at him and
Sanchez, who is also Hispanic and filed and EEO complaint after not being selected for an ASAIC
vacancy. [67-2, at 17, 60:12–15]. After the meeting, Plaintiff had a brief “heated” conversation
with Conway in which Conway stated that “things need to change around here” and suggested that
if they didn’t, he might need to involve HR.6 [67-2, at 19, 67:7–68:20].

6

Defendant objects to this statement as hearsay. [80, at 11]. However, statements that are “offered against
an opposing party” and that were “made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed” are not hearsay. Fed. R. Evid. 801. Here, Conway’s job involved
supervising Plaintiff, and Conway made the statement in this capacity. Therefore, the statement is not
hearsay. See Aliotta v. Nat’l R.R. Passenger Corp., 315 F.3d 756, 762 (7th Cir. 2003) (“While the
hiring/firing/promoting/demoting decisionmaking authority of the declarant may be critical in employment

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Plaintiff alleges that after he filed his EEO complaint, he was subjected to retaliatory
behavior, including the September 2016 meeting. In addition to the meeting, Plaintiff alleges that
office rules related to locators7 were inconsistently applied to him and Sanchez, who is also
Hispanic and filed an EEO complaint. [80, at 15 ¶ 30]. Additionally, in December 2016, Plaintiff
was scheduled to be on leave one afternoon. [75-4, at 69]. In the morning, he conducted an
interview, returned emails and phone calls offsite, and then began his leave time.

[Id.].

Afterwards, Conway threatened him with a disciplinary action, saying that Plaintiff should have
come into the office before the interview and that Plaintiff needed to submit an additional 2.5 hours
of leave. Generally, special agents were not required to come into the office prior to a morning
interview. [67-2, at 21, 73:2–74:8]. Further, in his affidavit, Plaintiff stated that OCI prevented
him from applying to another ASAIC vacancy and that he “was refused training, outside
employment, and assigned a co-case assistant.” [75-5, at 88]. He also received lower performance
evaluation scores related to communication; lower performance scores could lead to the loss of
monetary performance awards and termination. [80, at 15–16 ¶ 31]. Plaintiff retired “because it
was obvious the discrimination and retaliation would never stop” and that he “would never
advance in [his] career.” [75-5, at 89].
Plaintiff then filed this case, alleging discrimination on the basis of “race/national origin”
with respect to the first and second promotion processes, discrimination on the basis of age with

cases in which the admission deals with hiring/firing/promoting/demoting-type decisions, no similar
requirement exists in other contexts. The only requirement is that the subject matter of the admission match
the subject matter of the employee’s job description.”).
7

A “locator” is a communication from special agents to their supervisor informing the supervisor when
they will be offsite to, for example, conduct an interview or do surveillance and when they return or are
done for the day. [67-9, at 36, 118:3–10].

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respect to the first promotion process, and retaliation with respect to both promotion processes and
events after these processes. [22, at 5–10]. Defendant moved for summary judgment. [66].
II.

Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine dispute as to any material fact exists if “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). “On a motion for summary judgment, the moving party has the burden of
demonstrating that there are no genuine questions of material fact and that he is entitled to
judgment as a matter of law.” Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 (7th Cir. 1994).
“Once a party has made a properly-supported motion for summary judgment, the opposing party
may not simply rest upon the pleadings but must instead submit evidentiary materials that ‘set
forth specific facts showing that there is a genuine issue for trial.’” Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (quoting Fed. R. Civ. P. 56(c)). As
noted above, in evaluating a motion for summary judgment, the Court will construe all facts in the
light most favorable to the nonmoving party and draw all reasonable inferences in favor of the
nonmoving party. Bell, 827 F.3d at 704.
III.

Analysis
A.

Promotion Related Claims

Plaintiff claims that when OCI failed to hire him for the first ASAIC vacancy, it
discriminated against him based on his national origin and age and retaliated against him for past
EEO activity. [22, at 5–10]. Title VII makes it unlawful for an employer “to fail or refuse to hire
or to discharge any individual, or otherwise to discriminate against any individual with respect to

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his compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Age Discrimination
in Employment Act (ADEA) prohibits employers from taking the same actions because of
someone’s age.

See 29 U.S.C. § 623(a)(1).

“[T]he singular question that matters in a

discrimination case [is] ‘[w]hether the evidence would permit a reasonable factfinder to conclude
that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or
other adverse employment action.’” Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 894
(7th Cir. 2018) (quoting Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)). “One
method a plaintiff may utilize to present this evidence is the McDonnell Douglas framework,”
where the plaintiff must first demonstrate a prima facie case of discrimination. Tyburski v. City of
Chicago, 964 F.3d 590, 598 (7th Cir. 2020). “In a failure-to-promote case, to establish a prima
facie case a plaintiff must offer evidence that (1) he was a member of a protected class, (2) he was
qualified for the position sought, (3) he was rejected, and (4) the employer promoted someone
outside of the protected class who was ‘not better qualified’ for the position or who ‘had similar
or lesser qualifications.’” Henderson v. Shulkin, 720 F. App’x 776, 781 (7th Cir. 2017) (internal
citations omitted) (first quoting Riley v. Elkhart Cmty. Schs., 829 F.3d 886, 892 (7th Cir. 2016);
second quoting Whitfield v. Int’l Truck & Engine Corp., 755 F.3d 438, 444 (7th Cir. 2014)); see
also Jordan v. City of Gary, Ind., 396 F.3d 825, 833 (7th Cir. 2005) (applying this prima facie test
in an age discrimination case).
If the plaintiff establishes a prima facie case, the employer “must then produce evidence
of ‘a legitimate nondiscriminatory reason for the employment action’; if the employer produces
evidence of a legitimate reason, the plaintiff must then produce evidence that the employer’s
‘stated reason is a pretext.’” Riley, 829 F.3d at 891–92 (quoting Simpson v. Beaver Dam Cmty.

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Hosps., Inc., 780 F.3d 784, 790 (7th Cir. 2015)). “In order to demonstrate a material issue of fact
as to pretext, a plaintiff must show that either (1) it is more likely that a discriminatory reason
motivated the employer than the proffered non-discriminatory reason or (2) that an employer’s
explanation is not credible.” Hudson v. Chicago Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004);
see also Mullin v. Temco Mach., Inc., 732 F.3d 772, 778 (7th Cir. 2013).
Title VII also “prohibits an employer from retaliating against an employee for opposing or
participating in an investigation of an unlawful employment practice.” Lewis v. Wilkie, 909 F.3d
858, 866 (7th Cir. 2018). At summary judgment, a plaintiff may “present evidence satisfying the
elements of the retaliation claim: (1) he engaged in a protected activity, (2) he suffered an adverse
action, and (3) a causal connection exists between the activity and the adverse action.” Id. A
plaintiff may use the McDonnell Douglas framework to show retaliation as well. Id. “That method
allows the plaintiff to establish a prima facie case without proving a direct causal link by showing
that (1) he engaged in a protected activity, (2) he performed his job duties according to his
employer’s legitimate expectations, (3) he suffered an adverse action, and (4) he was treated less
favorably than similarly situated employees who did not engage in protected activity.” Id. The
remaining steps of the burden-shifting framework are the same for retaliation and discrimination
clams. Id.
That said, “a plaintiff may put forth and a court may analyze evidence using the McDonnell
Douglas framework, but neither must do so.” Tyburski v. City of Chicago, 964 F.3d 590, 598 (7th
Cir. 2020). “The applicable standard at summary judgment is whether the evidence would permit
a reasonable factfinder to conclude that” discrimination or retaliation “caused the adverse
employment action—here, the failure to promote.” Henderson, 720 F. App’x at 781; Lewis, 909
F.3d at 866–67 (explaining this standard in a retaliation case). Here, Plaintiff presents his evidence

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both within the McDonnell Douglas framework and through a wholistic lens. To the extent
necessary to resolve this motion, the Court does the same.
1.

Exhaustion and Pattern-or-Practice Evidence

In Plaintiff’s response and Local Rule 56.1 statement, he refers to other incidents of
discrimination and retaliation within OCI. [See 75, 36–39 ¶¶ 30–38]. Defendant argues that
Plaintiff failed to “exhaust his allegation that the agency had a ‘pattern’ of race/national origin
discrimination.” [68, at 7]. In doing so, Defendant argues that this “pattern” allegation is outside
of the scope of the two claims accepted by the EEO Office, which relate narrowly to the two
promotion processes. [Id., at 7–8]. However, “[t]he scope of an administrative charge brought
against [an] employer is determined by examining the claims that were ‘brought to [the EEOC’s]
attention,’ not by whether the EEOC actually considered or disposed of a given claim.” Reynolds
v. Tangherlini, 737 F.3d 1093, 1100 (7th Cir. 2013) (third alteration in original) (quoting Rush v.
McDonald’s Corp., 966 F.2d 1104, 1112 (7th Cir. 1992)). Here, Plaintiff’s complaint to the EEO
alleged that the OCI “has a pattern of discriminating against minority applicants with regards to
hiring and promotions for supervisory positions.” [67-8, at 11]. Thus, any pattern-or-practice
claim was within the scope of Plaintiff’s EEO charge.
Moreover, even if Plaintiff hadn’t included this allegation in the charge, the Court may
consider Plaintiff’s pattern-or-practice facts. “A pattern-or-practice claim is typically raised in a
class action to show that an employer had a wide-ranging policy to discriminate against class
members.” Benjamin v. Katten Muchin & Zavis, 10 F. App’x 346, 352 (7th Cir. 2001). Here,
Plaintiff filed only individual claims. [See 22]. The Seventh Circuit has explained that plaintiffs
may use pattern-or-practice evidence to demonstrate pretext to support their individual claims. See
Benjamin, 10 F. App’x at 352 (“Individual plaintiffs do sometimes use pattern-or-practice

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evidence to bolster their own disparate treatment claims as evidence of pretext.”); Bell v. E.P.A.,
232 F.3d 546, 553 (7th Cir. 2000) (“[E]vidence of systemic disparate treatment is relevant to and
probative of the issue of pretext.”); Henderson, 720 F. App’x at 785 (explaining that district court
wrongly dismissed “evidence regarding other employees and other matters not connected to” Title
VII plaintiff because “a jury could infer discriminatory intent from that evidence”). Further, “a
Title VII plaintiff need not allege in an EEOC charge each and every fact that combines to form
the basis of each claim in her complaint.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th
Cir. 1994). Accordingly, Plaintiff may use pattern-or-practice evidence to support his individual
claims.
2.

First Promotion Process

With respect to his age and national origin claims, Plaintiff is a member of a protected
class,8 Defendant concedes that Plaintiff was qualified for the promotion [68, at 9], and Plaintiff
was not hired for the position. Defendant argues that Plaintiff cannot demonstrate the fourth
element of the prima facie test: that Malham, the selected candidate, was not better qualified than
Plaintiff. [Id.]. Specifically, Defendant notes that Hermsen, McCormack, and South all concluded
that Malham had a superior interview and was able to clearly articulate the agency’s priorities,
whereas Plaintiff’s interview was subpar. [Id., at 10–11].
Recall that McCormack initially selected Malham on a non-competitive basis to
temporarily fill the ASAIC position. [80, at 3–4 ¶ 4; 73-3, at 7, 18:6–17; 67-3 at 8]. Although
Malham worked in this role for only two weeks before OCI conducted interviews for the acting

8

Defendant argues that Plaintiff cannot establish a prima facie case of age discrimination because “the
comparable employee must be at least ten years younger” and Malham is only seven years younger than
Plaintiff. [68, at 12 (citing Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc., 517 F.3d 470, 475 (7th
Cir. 2008))]. However, this ten-year gap is required only when both the plaintiff and the hired candidate
are protected by the ADEA. See Tubergen, 517 F.3d at 475 n.4. Here, Malham was 39 at the time of his
promotion and therefore was not protected by the ADEA. 29 U.S.C. § 631(a); [75-5, at 5, 6:15–16].

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ASAIC position, the record supports an inference that McCormack and Conway coached Malham
for that interview. [67-4, at 154; 75-3, at 132]. Thus, it is reasonable to conclude that Malham
was never actually competitively placed into the acting ASAIC position. As explained above, the
interview panel stressed that Malham’s answers were superior because he could articulate the
agency’s priorities and explain how he would lead a team in obtaining those priorities. A jury
could infer that Malham’s interview performance was improved based on the time he spent as
acting ASAIC and/or the coaching he received for the February 2016 interview—including from
one of the interviewers, McCormack. In fact, it is not out of the question that prior to that interview
Malham was fed the very answers that the interviewers found most compelling. Given this, the
Court is hesitant to consider, much less give dispositive weight to, the interview for the permanent
position or any experience gained by Malham as acting ASAIC. See Fischer v. Avanade, Inc., 519
F.3d 393, 402 (7th Cir. 2008) (not considering experience that the selected employee gained when
acting into a position in determining whether the plaintiff met the fourth prong of the prima facie
test); Crochrell v. Ill. Dep’t of Transp., 2005 WL 2388267, at *5 (S.D. Ill. Sept. 28, 2005) (finding
the plaintiff established a prima facie case when selected candidate “benefitted from significant
pretraining provided by the outgoing” employee and that employee “authored the first draft of the
questions ultimately used to evaluate the candidates”). And discounting this interview and
experience, a reasonable jury could infer that Malham was not better qualified for the permanent
ASAIC position, as the experiences listed on Malham’s and Plaintiff’s resumes are similar.
Plaintiff had been a special agent since 2010, and before that was a criminal investigator at the
DEA for ten years and a DEA supervisory special agent for four years. [67-6, at 2–3]. Malham
was an FDA special agent from 2007–2016, a DHS agent from 2001–2007, and an investigator at
Cole Taylor Bank from 1999–2001. [67-5, at 40–42]. In 2006, he was a “Group Leader” for the

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“Counterfeit Squad” at DHS. [Id., at 41]. Accordingly, drawing all factual inferences in favor of
Plaintiff, the Court concludes he established a prima facie case.9
The burden now shifts to Defendant to articulate a legitimate, non-discriminatory reason
for Plaintiff’s non-promotion. Defendant attempts to satisfy this step by explaining that Malham
was selected because in “June 2016,” he “demonstrated the best management potential.” [68, at
10]. However, as explained above, the June 2016 interview process for this ASAIC vacancy was
suspect, as there is evidence that Malham was preselected for the role. “[P]reselection is relevant
evidence of the employer’s motivation.” Goostree v. State of Tenn., 796 F.2d 854, 861 (6th Cir.
1986). Moreover, allowing only the selected candidate to gain experience in an acting capacity
“alone renders the panel selection process tainted.” Henderson, 720 F. App’x at 785. This taint
calls the OCI’s reasons for its hiring decision into question. Therefore, Plaintiff has demonstrated
a triable issue of fact on pretext.
Defendant also argues that Plaintiff cannot establish that the OCI’s reasons for not
promoting Plaintiff are pretext for age and national origin discrimination because not all the
interviewers knew his age or his national origin. [79, at 4–5]. Plaintiff counters that the
interviewers could infer his age based on the dates of his education on his resume and that they
could infer that he was Hispanic based on his last name (Vargas) and the fact that his resume states
that he is fluent in Spanish. [75, at 7]. From his resume, a reasonable jury could infer that the
interviewers knew that Plaintiff was over forty and Hispanic. See U.S. E.E.O.C. v. Target Corp.,
460 F.3d 946, 961–62 (7th Cir. 2006) (finding that jury could infer that employer knew applicants’
race based on their names and extracurricular activities listed on their resumes); cf. Huri v. Office

9

The Court notes that Defendant offers no argument regarding the impact of McCormack’s and Conway’s
coaching of Malham on either the prima facie or pretext analysis. Instead, Defendant only argues that the
conclusion that coaching occurred lacks foundation and is based on inadmissible hearsay. As described
above, supra note 3, this argument fails.

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of the Chief Judge of the Circuit Court of Cook Cnty., 804 F.3d 826, 834 (7th Cir. 2015) (inferring
that the defendant could have known that the plaintiff was Muslim because she wore a hijab).10
Accordingly, this argument fails.
However, Defendant is entitled to summary judgment on Plaintiff’s claim that he was not
hired for the first ASAIC position because of retaliation for his EEO complaint. At the time of the
selection, Plaintiff’s EEO activity consisted of the charge he filed against Conway in December
2014 and withdrew in February 2015. As Defendant notes, a year-and-four-month gap between
EEO activity and a non-promotion is too long to realistically support an inference of retaliation.
[68, at 14]; see also O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011)
(concluding that two-month gap between protected activity and adverse employment action “not
strongly suggestive of retaliation”); Leonard v. E. Illinois Univ., 606 F.3d 428, 432 (7th Cir. 2010)
(finding that six-month gap between protected activity and adverse employment action is “too long
to infer a link between the two”). Plaintiff argues that his 2014 EEO complaint is not too remote
because “Conway repeatedly expressed retaliatory motive both before and after the promotions at
issue in this case.” [77, at 14]. However, Conway was not involved in the selection process for
the first ASAIC vacancy, so any retaliatory motive expressed by Conway is not relevant to that
promotion process.

This is true when considering the evidence under the burden-shifting

framework or under the more holistic approach described in Ortiz v. Werner Enterprises., Inc.,
834 F.3d 760 (7th Cir. 2016). In sum, Defendant is entitled to summary judgment on Plaintiff’s
retaliation claim related to the first promotion process, but Defendant is not entitled to summary
judgment on Plaintiff’s national origin and age discrimination claims related to this process.

10

The Court notes that in Target, the EEOC introduced expert testimony about inferring race from names.
The Court offers no views at this time on whether such expert testimony would be necessary, or even
helpful, in the context of this case.

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3.

Second Promotion Process

Plaintiff alleges that when he was not selected for the second ASAIC vacancy, OCI
discriminated against him based on his national origin and retaliated against him for filing the 2014
EEO complaint and for filing an EEO complaint about the first promotion process. As with the
first promotion process, Defendant argues that Plaintiff cannot establish a prima facie case because
he cannot demonstrate that he was as qualified as Burdelik, the hired candidate. In arguing that
Burdelik is better qualified, Defendant cites to her superior interview performance as described in
the interviewers’ December 2016 affidavits. [68, at 11–12]. Plaintiff contends that the interview
panel’s December 2016 affidavits contradict their 2019 depositions, creating a credibility question
for the jury. [77, at 11–12].
The Seventh Circuit has explained that when a later affidavit contradicts an earlier
deposition, “the affidavit is to be disregarded unless it is demonstrable that the statement in the
deposition was mistaken, perhaps because the question was phrased in a confusing manner or
because a lapse of memory.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Plaintiff
acknowledges that here, the affidavits were completed prior to the depositions, and that the
“Seventh Circuit has ruled that ‘the Russell analogy is imperfect’ when the ‘affidavit actually [was]
executed prior to his contradictory deposition testimony.’” [77, at 11 (quoting Harris v. Owens–
Corning Fiberglas Corp., 102 F.3d 1429, 1432 (7th Cir. 1996))]. The Harris court explained that
depositions have an increased level of reliability because they are adversarial and because most
affidavits submitted in litigation are written by lawyers. 102 F.3d at 1432. The court did not need
to resolve the issue in that case, and therefore it did not determine whether the district court was
correct in discounting an affidavit that conflicted with a later deposition. Id.

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Here, however, there are good reasons for not discounting panel members’ affidavits. First,
contrary to the concern in Harris, these affidavits were submitted by the panelists as part of an
EEO investigation, not as part of litigation where a lawyer may have drafted the affidavits on their
behalf. Further, Harris’s reliability concern perhaps cuts the other way here, where the deposition
occurred three years after the interview. More to the point, the depositions do not contradict the
affidavits.

Instead, their depositions show that in 2019, the interview panelists no longer

remembered the August 2016 interviews as well as they had in November and December of 2016.
See Noone v. Presence Hosps. PRV, 149 F. Supp. 3d 904, 911 (N.D. Ill. 2015) (concluding that
the plaintiff’s “deposition testimony [did] not conflict with her affidavit” when she “testified that
she could not remember” certain details and her affidavit included those details); cf. Russell, 51
F.3d at 68 (explaining that a “lapse of memory” is one acceptable reason for a contradiction
between an affidavit and an earlier deposition). Moreover, the interview panelists reaffirmed their
affidavits during their depositions. In her deposition, Hermsen explained that her “general overall
recollection” was that Burdelik had “a very good interview,” “had a vision for supervising people,”
and that her “qualities as a * * * leader came out.” [67-2, at 103, 106:1–15]. McCormack
explained that he did not remember the interview but that he “stand[s] by what [he] had written in
his affidavit.” [67-4, at 139, 50:5–18]. In his affidavit, Conway explained that he did not
recommend Plaintiff because of his experience working with Plaintiff [67-4, at 5], a sentiment he
echoed in his deposition [67-4, at 38, 107:10–12].
In short, a reasonable jury considering the affidavits and depositions could conclude that
the interview panelists forgot the details of the interview over time. However, nothing in the
depositions suggest that the interview panelists’ affidavits were not truthful. Therefore, it is proper
to rely on the affidavits at the summary judgment stage in determining whether Burdelik was a

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superior candidate. That said, the Court need not determine whether Plaintiff establishes a prima
facie case because even if he does, he fails to demonstrate that the OCI’s stated reasons for not
promoting him were pretext. As with the first promotion, Defendant again explains that OCI
promoted Burdelik because the interview panel agreed that she should be promoted based on her
superior knowledge of the agency’s priorities and interview performance. [68, at 13]. The burden
now shifts back to Plaintiff to demonstrate that these stated reasons are pretext. “Pretext is more
than a mistake on the part of the employer; it is a phony excuse.” Hudson, 375 F.3d at 561. “‘The
question is not whether the employer’s stated reason was inaccurate or unfair, but whether the
employer honestly believed the reason it has offered’ for the adverse action.” Liu v. Cook Cnty.,
817 F.3d 307, 316 (7th Cir. 2016) (quoting O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635
(7th Cir. 2011)).
Plaintiff argues that OCI’s reasoning is pretext because (1) the interview panelists’
affidavits and depositions conflict, (2) Hermsen initially recommended DeLeon for the position,
(3) Conway stated that Plaintiff never had a chance at the promotion, and (4) OCI has a history of
discrimination and retaliation.11 [77, at 4, 12–13]. With respect to Plaintiff’s first argument, the
affidavits and the depositions don’t conflict, as explained above. The fact that the interview
panelists did not remember the interviews as well in 2019 as they did in November and December

11

Defendant argues that Plaintiff cannot demonstrate pretext based on the gap in credentials between
Plaintiff and Burdelik. [68, at 12–13]. The court does not read Plaintiff as making this argument, and
perhaps with good reason. For a gap in credentials to demonstrate pretext, “the gap must be so substantial
[as to] ‘slap you in the face.’” Hudson, 375 F.3d at 562 (quoting Millbrook v. IBP, Inc., 280 F.3d 1169,
1179 (7th Cir. 2002)). Any difference between Plaintiff’s and Burdelik’s credentials does not rise to that
level.

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2016 does not create a genuine issue of fact on whether OCI’s proffered reasons are a “phony
excuse.” 12 Hudson, 375 F.3d at 561.
Second, Plaintiff argues that OCI’s reasoning is pretext because Hermsen initially stated
she wanted to promote DeLeon and therefore the selection of Burdelik was not unanimous, as
represented by Defendant. [77, at 12]. As explained above, panel members stated who they
thought should be promoted after the interviews. [67-2, at 110, 137:18–22]. Hermsen initially
stated that DeLeon should be promoted, and McCormack and Conway thought Burdelik should be
promoted. [Id., at 111, 138:8–139:6]. Burdelik was initially Hermsen’s “close number two.” [Id.,
at 111, 139:8–10]. In her deposition, Hermsen explained that she, McCormack, and Conway
talked through DeLeon’s and Burdelik’s answers to interview questions, experiences, and
backgrounds, and they came to the consensus that Burdelik should be promoted. [Id., at 141:6–
17]. Thus, contrary to Plaintiff’s argument, Hermsen was not “overruled” by “lower ranking”
interviewers. [77, at 12]. Instead, as Hermsen explained, they “all came to a consensus after
discussion that Lynda Burdelik was the selectee for the position.” [67-2, at 111, 140:8–9].
In his third argument, Plaintiff asserts that OCI’s reasons are pretext because “Conway
admitted that Plaintiff never had a chance to be promoted, thus demonstrating that at the very least,
the entire interview panel did not review ‘the resumes, weigh[] the applicants’ interviews, and their
12

Plaintiff’s reliance on Henderson, 720 F. App’x 776, does not suggest otherwise. [77, at 14]. There, the
court questioned the “rigor of the selection process” when “the reviewers took no notes on their score sheets
and, many times when questioned during their depositions could give only vague, unenlightening answers
about why they scored individuals a certain way.” Id. at 782. It concluded that “if even the reviewers
cannot confidently explain why [the selected candidate] was advanced, it is not appropriate for us to
conclude that there was a truly independent, merit-based, selection process that shows [he] was ‘better
qualified’ as a matter of law.” Id. Here, Hermsen and Conway took notes during the interview [67-2, at
89, 52:12–13; 67-4, at 76, 261:8–23], and all three interviewers executed affidavits roughly four months
after the interview documenting why they selected Burdelik. Thus, this is not an instance in which the
interview panelists could not explain why they chose the selected candidate. Moreover, in Henderson, there
was evidence of preselection, 720 F. App’x at 782, which is not the case regarding the second ASAIC
vacancy. And Plaintiff cites nothing to indicate that fading memory alone is sufficient to establish pretext.

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knowledge of the agency’s priorities as the basis for their selections.’” [77, at 12 (alteration in
original) (quoting [68, at 13])]. In both his affidavit and interview, Conway maintained that, based
on his experience as Plaintiff’s direct supervisor, he did not believe Plaintiff could perform as an
ASAIC. In his affidavit, Conway stated that Burdelik was selected because the “interview panel
was in unanimous agreement that she best met the qualifications [they] were looking for.” [67-4,
at 4]. He also explained that Plaintiff did not exhibit as thorough knowledge of FDA laws and
policies, that Plaintiff “needs direction to complete assigned tasks,” that his “work typically has
grammar and spelling errors and his reports need editing,” that his “work is often submitted late,”
and that Plaintiff “does not have the respect of many of his co-workers.” [Id., at 5]. Conway noted
that “[t]here are agents who will not work with [Plaintiff] unless directed by a supervisor to do
so.” [Id.]. Plaintiff cites to nothing indicating that Conway was required to disregard information
he learned while working with Plaintiff when determining whether Plaintiff should be promoted
to a supervisory role. Further, Plaintiff does not dispute the contents of Conway’s affidavit by, for
example, demonstrating that his written work did not contain errors or was not often submitted
late.
Instead, Plaintiff highlights the difference between the explanation in Defendant’s brief—
“that the interview panel[] reviewed the resumes, weighed the applicants’ interviews, and their
knowledge of the agency’s priorities as the basis for their selections” [68, at 13]—with the
explanation provided by Conway—that he evaluated Plaintiff based on his knowledge of his work
performance. This argument draws too fine a distinction to support pretext. Although Conway
took his past knowledge of Plaintiff into account, he also explained that Burdelik was selected for
the position because the interview panel unanimously selected her, consistent with Defendant’s
briefing. [67-4, at 4]. Further, Conway explained that he supported Burdelik because she had

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better answers in the interview and could articulate the agency’s priorities. [Id., at 46, 140:1–5;
141, 9–10]. And between his affidavit and deposition, Conway consistently cites to his experience
supervising Plaintiff as a reason he did not recommend him. [Id., at 5, 38 107:10–12]. In short,
Plaintiff’s arguments are insufficient to demonstrate that OCI’s proffered reason for not promoting
him is a “phony excuse.” Hudson, 375 F.3d at 561.
Fourth, Plaintiff relies on evidence of other discriminatory or retaliatory conduct by OCI.
[77, at 5–6]. As explained above, pattern-or-practice evidence “is relevant to and probative of the
issue of pretext.” Bell, 232 F.3d at 553. That said, in an “individual rather than a class action”
case, the Seventh Circuit has “held that evidence of a pattern or practice can only be collateral to
evidence of specific discrimination against the plaintiff.” Matthews v. Waukesha Cnty., 759 F.3d
821, 829 (7th Cir. 2014). Here, there is no evidence of specific discrimination or retaliation against
Plaintiff. And the Matthews court makes clear that in individual cases, pattern-or-practice
evidence is not sufficient to establish retaliation or discrimination alone. 759 F.3d at 829; see also
Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990) (finding pattern-or-practice
evidence insufficient to demonstrate individual discrimination).
Finally, the Court notes that in using the McDonnell Douglas framework, its analysis
follows the parties’ lead. Plaintiff also urges the Court to analyze the holistic framework described
in Ortiz, 834 F.3d 760. [77, at 15]. Ortiz and progeny remind courts that in employment
discrimination cases, courts should not separate out “direct” and “indirect” evidence and analyze
each category separately. Ortiz, 834 F.3d at 765–66. “Instead, all evidence belongs in a single
pile and must be evaluated as a whole.” Id. at 766. Plaintiff argues that the evidence, “when
analyzed in the aggregate, free from the strictures of the burden-shifting approach, would permit
a reasonable jury to conclude that Plaintiff was discriminated against and retaliated against when

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he was not promoted a second time.” [77, at 15]. However, the evidence above does not suggest
that OCI discriminated or retaliated against Plaintiff with respect to the second promotion process.
And regardless of the analytical framework, “[t]he applicable standard at summary judgment is
whether the evidence would permit a reasonable factfinder to conclude that” discrimination or
retaliation “caused the adverse employment action—here, the failure to promote.” Henderson,
720 F. App’x at 781. As the evidence would not permit a reasonable jury to find that discrimination
or retaliation caused Plaintiff’s non-promotion, the Court grants summary judgment to Defendant
with respect to Plaintiff’s claims related to the second promotion process.13
B.

Post-Promotion Retaliation

Defendant argues that he is entitled to summary judgment on any claim arising out of
retaliation occurring after the promotion processes because Plaintiff failed to exhaust these claims.
[68, at 8–9]. However, as Plaintiff explains, “a plaintiff who alleges retaliation for having filed a
charge with the EEOC need not file a second EEOC charge to sue for that retaliation.” [77, at 7]
(quoting Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1030 (7th Cir. 2013)); see also
McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 477–78, 482–86 (7th Cir. 1996) (holding that
Plaintiff did not need to file an EEO complaint for retaliation based on a previous EEO complaint
even though the original EEO complaint was against one employee and the alleged retaliation
included actions by other employees).
Defendant argues that Luevano does not apply here because (1) Plaintiff “cannot meet the
requirements for amendment under Fed. R. Civ. Pro. 15” and (2) Luevano did not change the
requirement that there be a reasonable relationship between the allegations in the EEO charge and

13

As such, the Court need not address the parties’ arguments regarding whether all members of the
interview panel knew that Plaintiff filed an EEO complaint about the first promotion process. Even if the
panelists knew of the complaint, no evidence suggests that they retaliated against Plaintiff by not promoting
him.

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those in the Title VII complaint. [79, at 13–14]. In Luevano, the plaintiff appealed from a motion
to dismiss. 722 F.3d at 1017. The court explained that the plaintiff “could add a claim for the
alleged further retaliation to an amended complaint so long as the amendment would be
permissible under Rule 15(a).” Id. at 1030. From this language, Defendant argues that Luevano
held that the plaintiff there did not need to “‘file a second EEOC charge to sue for * * * retaliation’
because that plaintiff ‘could add a claim for the alleged further retaliation to an amended complaint
so long as the amendment would be permissible under Rule 15(a).” [79, at 13–14] (quoting
Luevano, 722 F.3d at 1030). However, contrary to Defendant’s argument, nothing in Luevano
links the rule regarding exhaustion of retaliation claims and Rule 15(a)’s requirements for amended
complaints. Instead, the opinion merely informs the pro se plaintiff that if she were to add
retaliation claims to her complaint, she must comply with Rule 15(a). Defendant also seems to
accuse Plaintiff of attempting to amend his complaint at the summary judgment stage. [Id., at 14
(“Certainly a response to a motion for summary judgment cannot meet the requirements for
amendment under Fed. R. Civ. Pro. 15; however, that is what Vargas is attempting.”)]. Regardless
of the legal merits of this argument, it fails because Plaintiff’s complaint did allege that Conway’s,
Burdelik’s, and Malham’s actions after the promotion process constituted retaliation. [22, at 9
¶¶ 52–55].
Next, Defendant asserts that Luevano did not “remove[] the requirement for ‘a reasonable
relationship between the allegations in the charge and the claims in the complaint.’” [79, at 14
(quoting Cheek, 31 F.3d at 500)]. Although true, this fact does not help Defendant. Seventh
Circuit cases adopting and applying the rule that “a separate administrative charge is not
prerequisite to a suit complaining about retaliation for filing the first charge” do so in part by
concluding that such retaliation complaints have a reasonable relationship to the initial EEO

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charge. Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989), superseded by statute on
other grounds by as recognized in Luevano, 722 F.3d at 1030; see also McKenzie, 92 F.3d at 481–
83 (stating that claim based on retaliation for filing EEO complaint must have a “reasonable
relationship” to the initial EEO complaint and concluding that such relationship existed). Thus,
the requirement for a relationship between the EEO charge and the retaliation claim in Plaintiff’s
federal complaint is met here.
Defendant made no other arguments14 about Plaintiff’s retaliation claim based on actions
occurring after the promotion processes. As such, Defendant has not demonstrated that “he is
entitled to judgment as a matter of law,” Green v. Whiteco Indus., Inc., 17 F.3d at 201, and the
Court declines to grant him summary judgment on Plaintiff’s retaliation claim arising out of any
actions taken after Plaintiff filed his 2016 EEO complaint.
IV.

Conclusion
For the reasons explained above, Defendant’s motion for summary judgment [66] is

granted in part and denied in part. Specifically, the Court grants Defendant’s motion with respect
to Plaintiff’s retaliation claim regarding the first promotion process and all claims related to the
second promotion process. The Court denies Defendant’s motion with respect to Plaintiff’s
discrimination claims regarding the first promotion process and with respect to retaliation claims
arising out of conduct occurring after Plaintiff filed his 2016 EEO complaint. The case is set for

14

In his reply brief, Defendant notes that Title VII does not set forth “a general civility code” and that
“supervisors are not prohibited from engaging in medieval, high-handed, or mistaken management
practices.” [79, at 15 (internal quotation marks and citations omitted)]. The Court does not read these two
sentences as seriously raising the alternative argument that even if Plaintiff had exhausted his claims
regarding post-promotion-process retaliation, then Defendant is nevertheless entitled to summary judgment.
See Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) (explaining that “perfunctory and undeveloped
arguments * * * are waived” (citation omitted)). Moreover, Defendant waived any such alternative
argument by not raising it in his opening brief. See Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 825 (7th
Cir. 2015); McCready v. Title Servs. of Ill., Inc., 2008 WL 2435933, at *3 (N.D. Ill. June 16, 2008) (“When
a party fails to address an argument in his summary judgment brief, it is deemed a waiver.”).

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a status hearing on March 12, 2021, at 9:45 a.m. Call-in details will be provided in a separate
minute order.

Dated: February 23, 2021

____________________________
Robert M. Dow, Jr.
United States District Judge

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