IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GEORGE E. STONE, II,

Plaintiff,

v.

GINA McCARTHY, Administrator,

U.S. Environmental Protection

Agency,

Defendant.

Case No. 12 C 15944

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

The Plaintiff, George E. Stone, II (hereinafter, the

“Plaintiff” or “Stone”), an Environmental Protection Agency (the

“EPA”) Grant Specialist, claims he was discriminated against

because of his race (African-American) and his sex (male) when he

was not promoted to a vacant Section-Chief position. He also

contends that he was retaliated against because of his claim by

giving him an undeserved performance rating. The Administrator has

moved for summary judgment.

The Administrator has filed a Rule 56.1(a)(3) Statement of

Uncontested Facts. The Plaintiff has filed what he terms a

“Response.” Most of the Statements are admitted, but his response

to three statements (Nos. 4, 5, and 8) was “Admitted in part and

denied in Part,” and to two others (Nos. 31 and 35) his response
was “Admitted in part.” Finally, the Plaintiff, in response to

others (Nos. 12, 13, 14, 16, 17, 18, 19, 27, 28, 29, and 30)

“Admits that [specific witness] so testified.” The Court has

scoured Plaintiff’s responses to these statements and cannot find

anywhere where it indicates what part he denied or what part he was

not admitting. The law in the Seventh Circuit is clear: a

litigant does not have the option of responding to the Rule 56.1

Statement in any other manner than to admit or deny and, if a

denial, a specific reference to the record supporting the denial

must be cited. The Rule does permit a responding party to file his

own “statement of additional facts” that require denial of the

motion but it must be in the form of “concise summary” rather than

an extended narrative. Failure to follow the rule amounts to an

admission of the well pleaded facts. Ammons v. Aramark Uniform

Services, Inc., 368 F.3d 809 (7th Cir. 2000). The Court,

therefore, deems the Administrator’s Statement of Uncontested Facts

as admitted.

Based on the admitted facts, the Plaintiff was, for a number

of years, a Grants Specialist for the EPA. In 2007 he was

transferred to the State and Tribal Services Section, Program

Services Branch, Land and Chemicals Division of EPA Region 5 in

Chicago. The transfer took place at the invitation of Bruce

Sypniewski, former Deputy Director of the division. In 2008 Allen

Melcer (“Melcer”) became the Branch Chief of the Program Services

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which included the State and Tribal Services Section. At that time

there was a vacancy in the position of Section Chief of the State

and Tribal Services Section. Melcer asked for a volunteer to serve

as Acting Chief on a temporary basis and Stone was selected for an

approximate six-week period. During this period, Melcer, Stone’s

direct supervisor, observed that Stone at times acted in a

“condescending” or “demeaning” way toward subordinates, and

received a number of complaints about his communication style. In

a performance review given to Stone in May 2008, he was informed of

these deficience and was advised that he needed to improve. 

Later that year a vacancy announcement was made for a

permanent appointment as Section Chief. An interview panel

consisting of Melcer, Linda Holst, Chief of the Water Quality

Branch of EPA Region 5, and Bruce Sypniewski, the then Deputy

Director of the Land and Chemicals Division, was formed by Melcer

to advise him. The panel reviewed the applications of and

interviewed 12 individuals, including Stone. The panelists each

concluded that, based on the interview, they believed that Stone’s

leadership style would be brusque and commanding and would approach

arrogance. At the conclusion of the interviews, all of the

panelists agreed that Julie Magee (“Magee”), another EPA employee,

and a white female, was the best qualified. None of the panelists

thought that Stone was the best qualified. As a result, Melcer

selected Magee for the Section Chief position in August 2008.

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Stone made an EEO complaint in September 2008. Performance

evaluations are issued in the fall. There are five possible

ratings: “outstanding,” “exceeds expectations,” “fully successful,”

“minimally satisfactory,” and “unacceptable.” In both 2009 and

2010, Magee rated Stone’s performance as “fully successful.” Stone

vehemently disagreed with this evaluation and contends in this suit

that the failure to rate him either “outstanding” or “exceeds

expectations” was in retaliation for his EEO complaint. Magee

denied that her evaluation was in retaliation but was based on

legitimate observation of his work.

II. DISCUSSION

The Administrator set forth in her opening memorandum

legitimate reasons why Melcer selected Magee rather than Stone for

Section Chief. To avoid summary judgment Stone needed to have

presented evidence from which a reasonable jury could conclude that

the reason given was a pretext to mask race and sex discrimination. 

Essentially Stone’s response was that he had more experience in

grant work than Magee did. However, what Stone overlooks is that

the position was a supervisory one which required management and

people management skills. Also overlooked is that Melcer looked to

an interview panel for advice as to whom to promote. Obviously any

promotion, not based solely on an exam score, has a certain

subjective element to it. Here the subjective element was greatly

reduced by virtue of the interview panel. Since each of the

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interviewers believed Magee was the best qualified, Stone would

need to argue that each was biased. In addition, Melcer had

observed Stone while he was acting Section Chief. Thus, Stone has

not refuted the reason put forth by the Administrator for not

promoting him. There is certainly no basis for the charge of

discrimination. Finally, as the Seventh Circuit has emphasized

courts “do not sit as a super-personal department that will second

guess an employer’s business decision.” Petts v. Rockledge

Furniture LLC, 534 F.3d 715, 724 (7th Cir. 2008). 

In regard to the retaliation, Stone in his brief makes no

response to the Administrator’s explanation for his rating. Hence

the claim is considered abandoned. 

Accordingly, the Motion of the Administrator for summary

judgement is granted.

III. CONCLUSION

For the reasons stated herein, the Defendant’s Motion for

Summary Judgment is granted.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Date:6/6/2014

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