Rabinovitz v. Pena

• Decision Date: 17 July 1996
• Docket Number: No. 95-3883,95-3883
• Citation: 89 F.3d 482
• Parties: Martin RABINOVITZ, Plaintiff-Appellant, v. Honorable Federico PENA, Secretary of Transportation, United States Department of Transportation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 482

89 F.3d 482

Martin RABINOVITZ, Plaintiff-Appellant, v. Honorable Federico PENA, Secretary of Transportation, United States Department of Transportation, Defendant-Appellee.

No. 95-3883.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1996.

Decided July 17, 1996.

Leslie A. Jones, Johnson, Jones, Snelling & Gilbert, Chicago, IL, Sheribel F. Rothenberg (argued), Law Office of Sheribel F. Rothenberg, Chicago, IL, for Plaintiff-Appellant.

Daniel E. May, Office of the United States Attorney, Civil Division, Appellate Section, Chicago, IL, Brian Douglas Bossert (argued), United States Attorney's Office, Chicago, IL, Thomas P. Walsh, Office of the United States Attorney, Civil Division, Chicago, IL, for Defendant-Appellee.

Before CUMMINGS, RIPPLE and EVANS, Circuit Judges.

CUMMINGS, Circuit Judge.

Martin Rabinovitz was twice denied promotions by his employer, the Federal Aviation Administration ("FAA"). After he filed a formal discrimination complaint, Rabinovitz's supervisors took several actions that he perceived to be retaliatory. Rabinovitz thus retired after sixteen years of employment and sued the FAA for age and religious discrimination, retaliation, and constructive discharge. We affirm the district court's grant of summary judgment in favor of the FAA.

I.

Rabinovitz, a Jewish employee of the FAA, worked at its Great Lakes, Illinois, regional office as a real estate contract officer from 1976 until 1992. In 1990 when he was 65 years of age, Rabinovitz applied for a promotion to one of two supervisory positions that had been posted. In November 1990, the positions were given to two other men--neither was Jewish and both were younger than Rabinovitz (37 and 41 years of age). Several employees had applied for the positions. Each was required to submit various forms and statements to be reviewed by a merit promotion panel, which consisted of three individuals: Janice Duckworth (designated as the technically knowledgeable participant), Barbara Dettmer (designated to ensure that no prohibited discrimination occurred), and Gloria Ostrand (personnel specialist). Dettmer was from the agency's Public Affairs department rather than its Civil Rights department and had no previous experience with promotion panels.

The panel identified Rabinovitz and four other individuals as "qualified" for the position. He received 21 out of 30 points on the panel's evaluation, placing him last on the list of five candidates. The two men hired, Robert Sipek and Donald Russo, scored 30 and 25 points respectively. Duckworth and Ostrand testified that the panel did not discuss the age or religion of the candidates. After the panel's evaluation, the candidates were interviewed by Glen Timmerman, a section supervisor, and Robert Pouci, Rabinovitz's immediate supervisor. Timmerman testified that he and Pouci considered Rabinovitz the weakest candidate after the interviews.

Sandra Libby, Pouci's superior and the selecting official, made the final hiring decision from among the five candidates. She selected Sipek and Russo based on information from the panel, the two interviewers, the required forms and statements, as well as her own observations. She also consulted with other individuals who all concurred in her decision. Libby was first acquainted with Rabinovitz in September 1990. In an October 1990 conversation, he volunteered to Libby that he was Jewish. She did not know the religion of the other four candidates when she made her final selections on November 18, 1990. She testified that she considered "the big picture" in making the decision, which to her meant all of the available information from the panel, etc. To Rabinovitz, it meant that "an old Jew like myself just did not fit in." She testified further that she did not hire Rabinovitz because his score from the panel was the lowest and because Timmerman's interview notes showed weaknesses in supervisory experience and human relations. After announcing the selections, Libby offered to send Rabinovitz to a management training course, but he declined.

Rabinovitz claims that he was more qualified than the two men selected. Sipek had spent the previous year in materials management, and thus lacked experience in real estate matters. Some co-workers also testified that Rabinovitz was more qualified than Russo. As to his own qualifications, Rabinovitz claims he had the necessary technical and supervisory experience. He points out that he had supervised individuals for years.

Rabinovitz subsequently sought counseling with the Equal Employment Opportunity Commission ("EEOC") and filed a formal complaint on December 10, 1990, alleging that he had been discriminated against because of his age and religion. In November 1990, while Rabinovitz was engaged in EEOC counseling, his employer announced a vacancy for a Realty Officer. The Realty Officer would supervise the two realty specialists just hired--Sipek and Russo-as well as six other realty specialists and a secretary. Rabinovitz, now 66 years of age, and ten others applied for the position and were found "qualified" by the promotion panel, which included Duckworth. Duckworth testified that Rabinovitz's age and religion did not affect the panel's rating.

In February 1991, the eleven candidates were interviewed by Neil Johnson, an engineer, and Michael Landon, a branch manager. Libby, who was the selecting officer, submitted questions to the interviewers and observed the interviews. One question asked of each candidate was what their reaction would be if not selected for the position. Libby contended that the question was designed to test the candidates' maturity. Libby ultimately selected Darrel Shepack for the position; Shepack was not Jewish and was 51 years of age. She selected him because of his diversified background and his management skills. She said that Rabinovitz did not possess the skills of a supervisor or manager and that she did not consider his age or religion.

In April 1991, Russo, who was now supervisor, gave Rabinovitz his yearly appraisal. Rabinovitz received a rating of "fully successful," which was one level below the "exceptional" rating that he had consistently received in the past. As a result, he lost a $600 bonus. Russo testified that the ranking reflected Rabinovitz's lack of computer skills and that he only had access to one of Rabinovitz's prior evaluations at the time. Rabinovitz cites a number of examples of his exceptional performance all to the effect that his actual performance level had not changed from previous years. Also in April, Russo informed Rabinovitz of various office restrictions: he was only allowed to talk to others about business matters; he was required to report to Russo before leaving the office and upon returning; he was to limit his breaks to twenty minutes; and he was not allowed to use the secretary for typing. The other real estate contract officers were not told of these restrictions. In addition, Rabinovitz requested and was denied the opportunity to begin work at 6 a.m. under a flex-time policy. Two other employees were allowed to start that early, but no real estate contract officers. Shepack testified that the FAA regional administrator ordered the office to provide technical support until 4:30 p.m. and the office only had four level-12 realty specialists, including Rabinovitz.

When an EEOC investigator arrived to investigate Rabinovitz's discrimination claim, Russo and Shepack sent him out of town, allegedly because the trip involved his area of responsibility as a member of an evaluation team. Rabinovitz denies that the trip related to his area of specialty and generally argues that the restrictions and hostility continued during 1992. In August 1992, Rabinovitz complained to Shepack about what he perceived to be unfair treatment. Rabinovitz contends that Shepack told him to resign if he did not like it, but Shepack denies making such a statement. On October 31, 1992, Rabinovitz resigned from the FAA.

Final adverse action was taken on Rabinovitz's EEOC claims in December 1993, and in March 1994 he filed a complaint in district court. He alleged discrimination based on religion and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) ("ADEA"). He also alleged retaliation and constructive discharge in violation of 42 U.S.C. § 2000e-3(a) after he filed the EEOC complaints. In November 1995, the district court entered summary judgment against plaintiff on all counts, Rabinovitz v. Pena, 905 F.Supp. 522 (N.D.Ill.1995), and this appeal followed.

II.

We review summary judgment de novo, with all evidence submitted and the legitimate inferences to be drawn therefrom viewed in the light most favorable to plaintiff. East Food & Liquor, Inc. v. United States, 50 F.3d 1405, 1410 (7th Cir.1995).

A. Discrimination

Under the ADEA and Title VII, a plaintiff may prove discrimination in either of two ways. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir.1994). He may present direct evidence of discrimination or apply the burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Rabinovitz has provided no direct evidence of discrimination and we therefore proceed to the McDonnell Douglas analysis under which he must first make out a prima facie case of discrimination. The elements of the prima facie case for age and religious discrimination in a failure-to-promote case such as this are as follows: plaintiff must show that (1) he was a member of the protected class (under the ADEA, age 40 or over); (2) he applied for and was qualified for the position sought; (3) he was rejected for the position; and (4) someone younger than him was given the position (age discrimination) or someone of a different religion was given the position (religious discrimination). Sample v. Aldi, Inc., 61 F.3d...