# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 4, 2020 *

Decided March 4, 2020

Before

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 19-1248

DAVID SERVIN, Plaintiff-Appellant

,

v

.

CITY OF CHICAGO, Defendant-Appellee

. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 15-cv-5706

J orge L. Alonso, J udge

. O R D E R

David Servin spent almost 10 years trying to get a job as a Chicago police officer. When he wasn’t hired, he sued the city, contending that the police department discriminated against him because of his age, in violation of the Age Discrimination in Employment Act. See 29 U.S.C. § 623. The district court entered summary judgment for the city on multiple grounds, including Servin’s failure to rebut the city’s evidence that it rejected his application when he was 36 years old. Because the Act protects only persons who are at least 40 years old, we affirm on that basis.

* We granted the appellant’s motion to waive oral argument, and the appeal is therefore submitted on the briefs and the record. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-1248 Page 2

Servin first applied to the Chicago Po lice Department in 2001, when he was 30 years old. He passed a written examination, after which the department placed him, and all other applicants who passed, on an eligibility list in random order. Applicants were invited to attend the police academy in the order in which they appeared on the list. In the meantime, they were required to complete other prerequisites, including a background check, physical-fitness test, and psychological examination.

A year after Servin passed the written exam, he failed his background check, and the police department removed him from th e eligibility list. Servin successfully challenged the decision in state court, but doing so took years, and the department did not put him back on the list until 2005. The dep artment then required Servin to redo the other prerequisites. By the time Servin comp leted them, the city had instituted a hiring freeze. A representative assured Servin that he could be hired once the freeze was lifted.

In 2007, a police investigator conducted a second background check on Servin. The parties dispute whether this investigator ever contacted Servin, but they agree that the investigator reported to his commanding o fficer that Servin had refused to fill out a questionnaire or otherwise cooperate with the background check. The department therefore rejected Servin’s application. Althou gh the investigator testified that he sent a certified letter to Servin notifying him of th e decision, the parties agree that Servin did not receive notice that his application was denied.

In 2014, Servin learned that the hiring fr eeze was over when the police academy accepted two of his younger relatives. By then, Servin was more than 40 years old and thus ineligible for appointment as a new police officer under Chicago Municipal Code section 2-152-410(e). He sued the city for age discrimination, alleging that the police department had intentionally delayed his appointment until he was ineligible. He further alleged that the department denied his application sometime after he turned 40, rather than 2007 as the city maintained. In support of this allegation, Servin testified at his deposition that an investigator from the Equal Employment Opportunity Commission told Servin that the investigat or’s supervisor had reviewed the eligibility list from 2010 and saw that Servin (then 39) was on it. Servin never saw the list.

The district court entered summary judgment for the city. The court concluded that Servin had provided no evidence that the police department intentionally delayed his appointment. But even if it had, the court continued, the Act did not protect Servin because he was only 36 years old when th e department denied his application in 2007.
See 29 U.S.C. § 631(a). The court rejected as hears ay Servin’s deposition testimony aboutNo. 19-1248 Page 3

the EEOC investigator’s comments, which wa s his only evidence that he remained eligible for the job after 2007.

On appeal, Servin again argues that the police department discriminated against him by delaying a hiring decision un til after he turned 40. But he fails even to acknowledge the district court’s ruling that hi s only evidence in support of his alleged timeline is hearsay, much less explain wh y he believes the ruling was incorrect. Inadmissible hearsay evidence may not be considered on summary judgment. F ED

. R.
C IV

. P. 56(c)(2); Cairel v. Alderden , 821 F.3d 823, 830 (7th Cir. 2016). Here, Servin had no personal knowledge that his candidacy remained active past 2007. He did not provide an affidavit or subpoena the 2010 eligibility li st (or any other year’s). He relied only on his own account of the investigator’s out-of-court statement (reporting another person’s statement) to establish the truth of that factual assertion. That is hearsay, see F ED

. R. E VID . 801(c), and Servin does not argue that an y exception to the hearsay rule applies. We therefore see no error in the district court’s decision to exclude this evidence. See Cortezano v. Salin Bank & Tr. Co ., 680 F.3d 936, 942 (7th Cir. 2012).

Because Servin cannot genuinely dispute th at the police department rejected his application when he was 36 years old, he cannot support a claim under the Age Discrimination in Employment Act. The Act does not protect individuals who are less than 40 years of age at the time of the allegedly discriminatory action. 29 U.S.C. § 631(a); see also Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 67 (2000). And whatever improper delays Servin alleges took place, they all necess arily occurred before the department’s final decision on his application in 2007 and therefore before his fortieth birthday.

AFFIRMED