Vargas v. Price
| Decision Date | 23 February 2021 |
| Docket Number | Case No. 17-cv-6481 |
| Parties | DAVID VARGAS, Plaintiff, v. THOMAS E. PRICE, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
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.
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.].
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 December29, 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].
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].
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 andcertificated 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 waysto 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...
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