Van Antwerp v. City of Peoria, Ill.

Decision Date06 December 2010
Docket NumberNo. 10-2455,10-2455
PartiesGene VAN ANTWERP, Plaintiff-Appellant, v. CITY OF PEORIA, ILLINOIS, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Nile J. Williamson (argued), Peoria, IL, for Plaintiff-Appellant.

Kimberly A. King (argued), City of Peoria, Office of Corporation Counsel, Peoria, IL, for Defendant-Appellee.

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

After working as a patrol officer for the Peoria Police Department for eighteen years, Gene Van Antwerp applied for a transfer to a technician position in the Department's Crime Scene Unit. He was interviewed and selected, but the Department subsequently withdrew his transfer, purportedly because the position did not become available as planned. Four months later, the Department conducted additional interviews and offered the technician opening to another officer. Believing the Department discriminated against him on account of his age and national origin when it rescinded his transfer, Van Antwerp filed a discrimination claim in federal district court. The City of Peoria, representing the Department, moved for summary judgment, and the district court ruled in favor of the City. Van Antwerp appealed only the grant of summary judgment on his age discrimination claim. Because Van Antwerp's evidence does not point directly to a discriminatory reason for the Department's actions, we affirm the judgment below.

I. Background

Van Antwerp began his employment with the Peoria Police Department in 1988 as a patrol officer. After eighteen years in that capacity, Van Antwerp decided a change was in order. In September 2006, he responded to an internal vacancy announcement put forth by the Department. The announcement stated that two technician openings were expected in the Crime Scene Unit; one position would start immediately, while the other had an anticipated January 2007 start date. The posting provided that three years of seniority, along with relevant experience and expertise, were required for each position. Van Antwerp was fifty years old when he applied for the technician position.

Van Antwerp and a number of other officers were interviewed for the vacancies by a panel consisting of Captain Philip Korem, Lieutenant Vince Weiland, and Sergeant Randy Pollard. After the interviews were complete, Weiland and Pollard recommended that the position currently available be given to Officer Paul Tuttle. For the position scheduled to open in January 2007, the two believed Officer TimWong was the better candidate, given his interview performance, qualifications, and expertise. Because Wong was twenty-six days short of the seniority requirement, however, they recommended Van Antwerp for that position. A personnel order was issued on September 27, 2006, advising Tuttle and Van Antwerp of their transfers. Tuttle was transferred immediately thereafter.

To Van Antwerp's disappointment, the Department subsequently rescinded his transfer order. On November 7, 2006, Korem sent out a memorandum advising all personnel that Van Antwerp would not be transferred to the Crime Scene Unit. While Korem offered no explanation at the time, the Department later asserted that the transfer did not take place because the vacancy in the Unit did not arise as anticipated. According to the Department, the vacancy depended on the promotion of Officer Kenneth Snow, who was a senior technician in the Unit. But Snow's permanent promotion to Sergeant in turn depended on the retirement of Sergeant Melvin Little. Little retired earlier than expected, and Snow was not able to be permanently moved out of the Crime Scene Unit due to union requirements, thus leaving the anticipated position temporarily unavailable. When the Department ascertained that Snow's position would be available in mid-2007, it posted another vacancy announcement and conducted new interviews in March 2007. This time, the position went to Wong.

Believing that the Department discriminated against him when it rescinded his transfer to the technician post, Van Antwerp brought suit against the City of Peoria in the United States District Court for the Central District of Illinois. Van Antwerp claimed that the Department withdrew his transfer because of his age, in violation of the Age Discrimination and Employment Act (ADEA), and because of his Dutch national origin, in violation of Title VII of the Civil Rights Act. After striking some of Van Antwerp's evidence, the district court granted summary judgment in favor of the City on all counts. Van Antwerp appealed only his ADEA claim.

II. Analysis

We review a district court's grant of summary judgment de novo. Tindle v. Pulte Home Corp., 607 F.3d 494, 495 (7th Cir.2010). Summary judgment is appropriate where the evidence shows "that there is 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). "There is no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th Cir.2007).

The ADEA makes it illegal for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To establish a violation of the ADEA, an employee must show that age actually motivated the adverse employment action. Faas v. Sears, Roebuck & Co., 532 F.3d 633, 641 (7th Cir.2008). Put differently, age must have played a role in the employer's decision-making process and had a determinative influence on the outcome. Schuster v. Lucent Techs., Inc., 327 F.3d 569, 573 (7th Cir.2003).

An employee may set forth an ADEA claim through the direct or indirect method of proof. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir.2006). Van Antwerp has chosen the direct method and can meet his burden of proof byoffering direct evidence of animus-the so-called "smoking gun"-or circumstantial evidence which establishes a discriminatory motive on the part of the employer through a longer chain of inferences. Mach v. Will County Sheriff, 580 F.3d 495, 499 (7th Cir.2009). Circumstantial evidence can take many forms, including "suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other employees in the protected group," evidence showing "that similarly situated employees outside the protected class received systematically better treatment," and "evidence that the employee was qualified for the job in question but was passed over in favor of a person outside the protected class and the employer's reason is a pretext for discrimination." Sun v. Bd. of Trs., 473 F.3d 799, 812 (7th Cir.2007). Whatever circumstantial evidence is offered, however, must "point directly to a...

To continue reading

Request your trial
223 cases
  • Marshall v. Amsted Rail Co.
    • United States
    • U.S. District Court — Southern District of Illinois
    • September 20, 2011
    ... ... Hanson, Richard M. Paul, III, Stueve, Siegel et al., Kansas City, MO, Mark A. Potashnick, Weinhaus & Potashnick, St. Louis, MO, for ... to pay wages and overtime compensation, while enjoying substantial ill-gained profits at the expense of the hourly-paid employees undertaking ... Van Antwerp v. City of Peoria, Illinois, 627 F.3d 295, 297 (7th Cir.2010), quoting ... ...
  • Jones v. Nat'l Council of Young Men's Christian Associations of U.S.
    • United States
    • U.S. District Court — Northern District of Illinois
    • June 18, 2014
    ... ... Porter v. City of Chi., 700 F.3d 944, 950 (7th Cir.2012) (quoting Fed.R.Civ.P. 56(a) ) ... for Title VII cases); Budzileni v. Dep't of Human Rights, 392 Ill.App.3d 422, 44344, 331 Ill.Dec. 434, 910 N.E.2d 1190 (1st Dist.2009) ... Cook Cnty., 655 F.3d 723, 729 (7th Cir.2011) (citing Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 298 (7th Cir.2010) ) ... ...
  • T.V. ex rel. B.V. v. Smith-Green Cmty. Sch. Corp.
    • United States
    • U.S. District Court — Northern District of Indiana
    • August 10, 2011
    ... ... Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir.2010). On summary ... ...
  • Tate v. Ancell
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 17, 2014
    ... ... Tate v. Ancell, 2011 WL 3859913 (S.D. Ill. Sept. 1, 2011). With respect to the ADA claim, the court noted that Tate ... See , e.g., Brown v. City of Salem, 2007 WL 671336, at *4 (D. Ore. 2007). Recognizing that Tate's ... See , e.g., Frey Corp. v. City of Peoria, Ill., 735 F.3d 505, 509 (7th Cir. 2013) (arguments not made to district ... See Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297-98 (7th Cir. 2010); Faas v ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT