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 

Jorge L. Alonso, 

Judge. 

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. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 19-1248 Page 2 

Servin first applied to the Chicago Police 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 the 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 department then required Servin to redo the 

other prerequisites. By the time Servin completed 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 officer that Servin had refused to fill out a 

questionnaire or otherwise cooperate with the background check. The department 

therefore rejected Servin’s application. Although the investigator testified that he sent a 

certified letter to Servin notifying him of the decision, the parties agree that Servin did 

not receive notice that his application was denied. 

In 2014, Servin learned that the hiring freeze 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 investigator’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 the department denied his application in 2007. 

See 29 U.S.C. § 631(a). The court rejected as hearsay Servin’s deposition testimony about 
No. 19-1248 Page 3 

the EEOC investigator’s comments, which was 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 until after he turned 40. But he fails even to 

acknowledge the district court’s ruling that his only evidence in support of his alleged 

timeline is hearsay, much less explain why he believes the ruling was incorrect. 

Inadmissible hearsay evidence may not be considered on summary judgment. FED. R.

CIV. 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 list (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 FED. R.

EVID. 801(c), and Servin does not argue that any 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 that 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 necessarily occurred before the department’s final 

decision on his application in 2007 and therefore before his fortieth birthday. 

AFFIRMED