Baron v. City of Highland Park

• Decision Date: 27 October 1999
• Docket Number: No. 99-1148,99-1148
• Citation: 195 F.3d 333
• Parties: (7th Cir. 1999) DAVID BARON, Plaintiff-Appellant, v. CITY OF HIGHLAND PARK, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 333

195 F.3d 333 (7th Cir. 1999)

DAVID BARON, Plaintiff-Appellant, v. CITY OF HIGHLAND PARK, Defendant-Appellee.

No. 99-1148

United States Court of Appeals, Seventh Circuit

Argued May 12, 1999

Decided October 27, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 1539--George M. Marovich, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before COFFEY, RIPPLE and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

On March 6, 1997, the plaintiff-appellant, David Baron ("Baron"), brought a claim against the City of Highland Park, Illinois, under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. sec. 621 et seq., alleging that he was denied promotion to fire lieutenant because of age. The defendant- appellee, the City of Highland Park, filed a motion for summary judgment on April 30, 1998, which the United States District Court for the Northern District of Illinois granted on December 16, 1998. On January 14, 1999, the plaintiff filed his notice of appeal. We affirm.

I. BACKGROUND

The plaintiff Baron has been employed as a full-time firefighter by the fire department of the City of Highland Park, Illinois, since November of 1974. The forty-seven-year-old plaintiff applied for a promotion to fire lieutenant in September of 1996.¹ Candidates applying for the position of fire lieutenant must take a written examination and undergo an oral interview in order to be considered for promotion. The City of Highland Park's Civil Service Commission ("Commission") administers the test and interview. The written examination is administered first, from which the Commission scores the examination and ranks the applicants accordingly. Two Commission members then proceed with an oral interview of each applicant and rate them based upon such factors as knowledge and experience, education and training, as well as general appearance, understanding and self- expression, poise and emotional stability, and overall suitability. The oral interview score is then averaged with the written test score, and additional points are added based on military experience and seniority. This averaged score becomes the applicant's final result, and applicants are given a final ranking based on their combined test results. Candidates must rank at or near the top of this "final eligibility list" to be promoted to the fire lieutenant's position.

In September of 1996, Baron received a score of 81 on his written examination, which placed him fifteenth out of eighteen applicants on the preliminary list. Baron thereafter completed an oral interview with Commission-members Dan Brusslan ("Brusslan") and Peter Barron ("Barron") (no relation to the plaintiff). Baron received a score of 72 on his oral interview, and received two additional points for military service and two points for seniority, for an overall final score of 80.5. Baron's result placed him twelfth on the final eligibility list. Because there were only two fire lieutenant positions available, only the top two ranked individuals from the final eligibility list were promoted: Patrick Tanner ("Tanner"), age 30, who received the same written score as Baron (81), but a much higher oral score; and Kenneth Olzewski ("Olzewski"), age 31, who received much higher oral and written scores (86 and 89, respectively) than did Baron.

Baron, who was not promoted and was unhappy with his oral interview score, believed that he was well-qualified to be fire lieutenant because he possessed a "good common sense approach to fire fighting" and twenty-three years of firefighting experience. Furthermore, he was of the opinion that he was more qualified for the position than either Olzewski or Tanner because, among other factors, he possessed several college and university degrees and had received instruction in a variety of methods of firefighting. The forty-seven-year-old plaintiff was convinced that he had not been promoted to fire lieutenant due to age discrimination and filed suit against the City of Highland Park on March 6, 1997, alleging wrongful discrimination in willful violation of ADEA because "there are several younger fire fighters that went to the top of the list and the bulk of the older fire fighters went to the bottom of the list."

As evidence of his contention, Baron stated in his deposition that his oral interview lasted only five minutes, well short of the twelve- minute average. In an affidavit submitted to the court, Baron also stated that he was not asked any substantive questions regarding firefighting and was not given any hypothetical questions or problems regarding firefighting situations to respond to, contrary to city policy, and that in essence, the Commission was merely "going through the motions" and his oral examination was a sham. Furthermore, Baron alleged that another firefighter, Steve Drake ("Drake"), had overheard city fire chief David Campagni mention at a social event prior to the promotion process that "[Baron] only wanted the position to enhance [his] pension," and that "[Baron] was too close to pension." Baron also argued that direct evidence of discrimination against older candidates was reflected in a statement made by Brusslan that Baron's education and training were not recent. The district court, in its findings, stated that Baron took Brusslan's comments out of context; Brusslan was merely stating that he felt that recent education and training reflected a continuing interest in firefighting.

The district court rejected the plaintiff's argument that comments made by Campagni and Brusslan constituted direct evidence of discrimination. The court found that Baron's testimony regarding Campagni's alleged statement was inadmissible hearsay and could not be considered in deciding whether to grant summary judgment. Furthermore, the district court found that there was no indirect evidence of discrimination under the McDonnell Douglas burden-shifting analysis. Although the court ruled that Baron had established a prima facie case of discrimination, the trial judge concluded that Baron had failed to demonstrate that the defendant's legitimate, nondiscriminatory reasons for not giving him the promotion (that Baron did not perform sufficiently well on the written test and oral interview) were pretextual.

II. ISSUE

On appeal, the plaintiff contends that the district court erred in granting summary judgment to the defendant because there were genuine issues of material fact from which a reasonable jury might have found age discrimination under the ADEA.

III. DISCUSSION

This Court reviews the grant of summary judgment de novo. See Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 395 (7th Cir. 1999). In general, summary judgment is appropriate where the pleadings, answers, interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact" and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Only genuine disputes over "material facts" can prevent a grant of summary judgment, and "material facts" are defined as those that might affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists only if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. See id. When considering a motion for summary judgment, a court must view the facts, and all reasonable inferences drawn therefrom, in a light most favorable to the nonmoving party. See Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

The plaintiff contends that the trial court erroneously granted the defendant's summary judgment motion. Baron maintains that the subjective nature of the oral interview facilitated the examiners' discriminatory agenda. Specifically, Baron claims that although Tanner and Olzewski received scores of 81 and 86, respectively, on the written test, which placed them fourteenth and eighth in the preliminary ranking, they received the two highest positions on the final eligibility list and thus their oral interview scores were unfair. Baron goes on to argue that these two respective interview scores were unfair in that they were motivated by age discrimination, as evidenced by remarks made by Commissioner Brusslan and Fire Chief Campagni. As further evidence of discrimination, Baron notes that his oral interview lasted only about five minutes, far short of the twelve-minute norm. Furthermore, in his affidavit, Baron stated that he was asked no substantive questions regarding firefighting during the interview and was not given any hypotheticals regarding firefighting situations.

The city responds that Baron's allegations concerning the statements of Campagni and Brusslan were inadmissible at trial and taken out of context. The city further responds that the time allotted to Baron's interview was of the same duration as that of the other participants, about twelve minutes, and that Baron was asked the same questions. This fact is highlighted by the fact that Baron's affidavit, in which he stated that he was only asked three questions, differs from his deposition testimony, in which he contended that he could only remember three questions. Furthermore, Brusslan stated that he asked all applicants questions to determine how they would react in given emergency situations. Brusslan stated that he did not think that Baron would command the requisite respect from his men and concluded that Baron "sat there and gave a very poor oral interview . . . . He was like a bump on a log is the only way I can put it." The city also noted that the second examiner, Barron, said that Baron's demeanor at the interview was extremely unimpressive and that he lacked leadership skills.

In considering the trial court's grant of summary judgment, initially we note that the ADEA makes it illegal for an employer to "discharge...