has not shown that defendant’s requirement that inspectors have computer skills was phony, or
that Martinez allowed employees with comparable problems to continue their training.

There is abundant evidence in the record that plaintiff was not meeting the FAA’s
performance expectations. Moreover, Martinez himself had recruited plaintiff for the inspector
position only six months before he terminated plaintiff, an act that would make little sense if
Martinez was prejudiced against older Hispanic Puerto Ricans. See Hermreiter v. Chicago Hous.
Auth., 315 F.3d 742, 747 (7" Cir. 2002), cert. denied, 124 S. Ct. 472 (2003) (as a matter of

common sense, the trier of fact may consider that the same individual hired and fired an
employee). Plaintiff has not established that Martinez used plaintiff's poor performance as a
pretext for discrimination.

ORDERED: Defendant’s motion for summary judgment [11-1] is granted. Judgment in
favor of defendant and against plaintiff will be set forth on a separate document and entered in

the civil docket. See Fed. R. Civ. P. 58.

ENTER:

George W. Lindberg
Senior United States District Judge

APR 02 2004

DATED:

13


observed that plaintiff seemed lost when he used different computer programs and that he did not
improve with time.

At Martinez’s direction, plaintiff took several computer courses that provide training for
the inspection of aircraft from each of the carriers flying into O’Hare International Airport.
According to defendant, plaintiff failed the courses several times, each time getting a computer
specialist to reset the computer so that he could retake the course. Plaintiff took three or four
days to satisfactorily complete a single one-hour course. Plaintiff denies that he ever failed any
of the courses, explaining that he had been unable to complete the courses initially “due to
computer difficulties.”

Martinez met with plaintiff on April 6, 2001 to formally discuss plaintiff's problematic
job performance; prior to that time, Martinez had informally given plaintiff negative feedback.
Following the meeting, plaintiff gave Martinez a written rebuttal to the negative comments he
had received at the meeting. When Martinez received the written rebuttal, he enrolled plaintiff in
a writing course.

In April 2001, it took plaintiff three days to complete a one-hour course, and three days to
complete a nine-hour course. According to plaintiff, he was not instructed to complete the
courses in any specific amount of time.

In May 2001, plaintiff attended three courses at the Aeronautical Center in Oklahoma
City. At these courses, plaintiff had to be reissued a new password and user codes because he
repeatedly locked himself out of his computer. Although plaintiff passed the courses, he would
not have passed two of them had he not been given back his exams to double-check the answers

before final grading.



evidence to enable a trier of fact to find that defendant’s explanation is pretextual. Id,

Defendant does not dispute that plaintiff is a member of a protected class, or that he was
subjected to an adverse employment action when he was terminated. Nor does defendant argue
that similarly situated employees not of the protected class were not treated more favorably.
Instead, defendant contends that plaintiff cannot establish a prima facie case because he cannot
show that he was performing his job satisfactorily.

Defendant has offered evidence that during the just-over six months that plaintiff was
employed by the FAA, every inspector that provided training to plaintiff observed that he had
significant difficulties retaining information. Several inspectors observed that plaintiff had
trouble using computers, even after he took a course about computers and was given a laptop
computer for practice at home. Plaintiff took longer than other employees to complete training
courses, and passed several tests only after being given an opportunity to review his answers a
second time. Plaintiff reached Level 2 training (observing a job function being performed) on
only four tasks, and never reached Level 3 (performing a function under supervision) on any task.

Plaintiff counters that he met all of defendant’s legitimate expectations. According to
plaintiff, after he participated in an air base inspection in Wisconsin, three inspectors advised
plaintiff of their favorable impression of his work. Plaintiff claims that these inspectors also
advised him that they intended to recommend that his evaluation reflect that he had completed
Level 3 (the highest level of training) on the tasks he had done. According to plaintiff, Rigg
refused to allow the inspectors to provide plaintiff with a favorable evaluation. In support of
these claims, plaintiff only offers his statements in his own affidavits that relate what the three

inspectors told him. Affidavits supporting and opposing summary judgment must “set forth such


matter of law.” Fed. R. Civ. P. 56(c). The court must draw all reasonable inferences in favor of
the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The moving party bears the initial burden of demonstrating that no material issue exists for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has properly
supported its motion, the nonmoving party must offer specific facts demonstrating that a material
dispute exists, and must present more than a scintilla of evidence to support its position.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

Plaintiff claims that defendant discriminated against him based on his race, national
origin, and age, by terminating him rather than allowing him to continue his training. Plaintiff
may show discrimination under the ADEA and Title VII either by means of direct evidence, or
through indirect evidence, using the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
burden-shifting method. See Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692-93
(7 Cir. 2000) (ADEA); Hildebrandt v. Illinois Dep’t of Natural Res., 347 F.3d 1014, 1029 q@

Cir. 2003) (Title VII). Plaintiff attempts to establish his claims under both the direct and indirect
methods.
Direct evidence of discrimination is “evidence which if believed by the trier of fact, will

prove the particular fact in question without reliance on inference or presumption.” Miller v.

Borden, Inc., 168 F.3d 308, 312 (7 Cir. 1999) (quoting Cowan v. Glenbrook Sec. Servs., Inc.,

123 F.3d 438, 443 (7" Cir. 1997)). Ordinarily, direct evidence consists of an admission by the

decisionmaker that his or her actions were based on a discriminatory factor. See Balderston v.
Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 321 (7" Cir. 2003). Direct

evidence of discrimination may also consist of circumstantial evidence that points directly to a



Plaintiff returned to Oklahoma City for a second round of courses in late June and early
July 2001. Plaintiff passed these courses only after his final exams were returned to him for
another review. Upon plaintiff's return from Oklahoma City, his co-workers who had also
attended the course reported to Martinez that plaintiff had been an embarrassment as a student,
and that he could not retain instructions. Martinez told plaintiff that he was extremely
disorganized, that he was not grasping the fundamentals of his job, and that his retention of
information was almost nonexistent.

Plaintiff asked another inspector, Theodore Willis, to provide him additional training.
Willis trained plaintiff several times on ramp inspections. Willis observed that plaintiff was a
good mechanic, but could not retain information on how to do the job functions, especially those
done on the computer. Willis felt that plaintiff had technical abilities that were comparable to
other trainees, but was operating at a lower level as an inspector than the others. Willis reported
to Martinez that plaintiff did not retain information.

Plaintiff was terminated on September 5, 2001. Martinez made the decision to terminate
plaintiff, and Martinez’s supervisor, Robert Ritter, concurred. Plaintiff filed a discrimination
complaint with the Department of Transportation, which made a finding of no discrimination on
November 20, 2002. The Equal Employment Opportunity Commission affirmed the agency’s
final decision on April 29, 2003. Plaintiff filed this action on July 17, 2003.

IL. Discussion

Summary judgment shall be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with [any] affidavits, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a



plaintiff was an embarrassment as a student. In any event, plaintiff offers no evidence that these
co-workers had any influence over Martinez’s decision. Cf. Wallace v. SMC Pneumatics, Inc.,
103 F.3d 1394, 1400 (7" Cir. 1997) (noting that a subordinate’s prejudices may be imputed to a
decisionmaker if the subordinate is able to influence the decision).

Finally, plaintiff offers evidence that some employees had expressed concerns to a union.
representative that Martinez was hiring a “Spanish Coalition” of less qualified employees, and
that Martinez and Hispanic inspectors spoke Spanish to one another in the workplace. The union
representative reported these concerns to Robert Ritter, Martinez’s supervisor. Plaintiff argues
that this is direct evidence that Martinez terminated plaintiff in an effort to reduce criticism of his
hiring practices. Again, plaintiff's connection between these statements and Martinez’s
motivation is nothing but speculation. The court concludes that plaintiff has presented no direct
evidence of discrimination.

Since Plaintiff has presented no direct evidence of discrimination, the court turns to the
familiar McDonnell Douglas burden-shifting analysis. Under that analytical framework, to
establish his discrimination claim, plaintiff must show that (1) he is a member of a protected
class; (2) he was meeting defendant’s legitimate performance expectations, (3) he was subjected
to an adverse employment action; and (4) that similarly situated employees not in the protected
class were treated more favorably. See Bennington v. Caterpillar Inc., 275 F.3d 654, 659 (7* Cir.
2001) (ADEA); Johnson v. Zema Sys. Corp., 170 F.3d 734, 742-43 (7" Cir. 1999) (Title VID). If
plaintiff establishes a prima facie case of discrimination, defendant must then show a legitimate,
nondiscriminatory reason for the employment action. See Peele v. Country Mut. Ins. Co., 288

F.3d 319, 326 (7" Cir. 2002). If defendant does so, plaintiff must then present sufficient



‘Migute Order Form 46/97)

in (yn States District Court, Northern District of Illinois

Name of Assigned Jud; i Sitting Judge If Oth
ot Magistrate Judge George W. Lindberg than Assigued Judge
CASE NUMBER 03 C 4970 DATE 4/2/2004
CASE Raymond Rivera Marquez vs. Normany Mineta
TITLE
. [In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
(1) Qa Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) o Answer brief to motion due . Reply to answer brief due .
(4) oa Ruling/Hearing on set for at
(5) Q Status hearing[held/continued to) [set for/re-set for] on set for at
(6) QO Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) Oo Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial) [Hearing) held/continued to at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) C) Local Rule 41.1 OFRCP4i(a\(1) OO FRCP41(a)(2).
ao [Other docket entry]  Defendant’s motion to for summary judgment (11-1) is granted. Enter
memorandum opinion and order.
(11) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Document
Number

Notices mailed by judge’s staff.
Notified counsel by telephone.

a } Docketing to mail notices.
a | Mail AO 450 form. sn
Copy to judge/magistrate judge.
eo aye oo ness
courtroom Gath vie 07 Goa Tue
SLB deputy's
initials
~-Date/time received in
central Clerk's Oifice



unavailable to train him as a result of Rigg’s travel and work schedule. As for plaintiffs
problems with computers, he offers evidence that other inspectors had had problems with the
computer system. In addition, some other inspectors were allowed to handwrite certain reports
and have assistants enter the information into the computer. Finally, plaintiff contends that he
was passing his writing course at the time he was terminated.

The court concludes that plaintiff has not established that he was satisfactorily performing
his job when he was terminated. The only evidence plaintiff offers that he was performing
comparably to other inspectors of similar tenure is that his Priority 1 completion rate after six
months of employment was higher than that of Quentin Cruz and Edy Mentor after a similar
length of employment. However, plaintiff offers no evidence that Cruz or Mentor had trouble
retaining information, or that their computer skills were as ill-developed as plaintiff's. Similarly,
although plaintiff points to evidence that Mentor took as long as 32 months to complete his
training, he offers no evidence that Mentor required the same type of intensive training efforts
that plaintiff needed. Although Rigg’s lack of availability to train plaintiff could be a reason why
plaintiff took a longer time to complete tasks, it would not have affected plaintiff's ability to
retain information from one day to the next. Plaintiff notes that other inspectors had trouble with
the computer system, but offers no evidence that their trouble was as profound or long-lasting as
his. Nor does evidence that other inspectors sometimes had assistants enter their information
into the computer mean that inspectors were not required to have computer skills.

Plaintiff's negative evaluations were not made only by Martinez and Rigg, the two
individuals that plaintiff contends acted unfairly toward him. To the contrary, every inspector

that encountered plaintiff observed that plaintiff could not retain information. Although Latorre

1



facts as would be admissible in evidence.” Fed. R. Civ. P. 56(e). Since plaintiff's statements
regarding what the other inspectors told him rely on inadmissible hearsay, the court must
disregard them. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7" Cir. 1996).

. Plaintiff also claims that shortly before he was terminated, his completion rate for
“Priority 1"? tasks was higher than or comparable to that of other trainees who had been
employed by the FAA the same amount of time. As of August 28, 2001, when plaintiff had been
employed by the FAA for six months, plaintiff had completed 11.1% of the Priority 1 tasks.
Plaintiff observes that Quentin Cruz, an inspector who had been hired one month after plaintiff's
hire, stated in an affidavit that he had completed only 6% of the Priority 1 tasks when plaintiff
was terminated on September 5, 2001.? According to plaintiff, inspector Edy Mentor had
completed only 7.9% of the Priority 1 tasks after six months of employment. Plaintiff contends
that this evidence shows that he was meeting the same expectations defendant set for the other
employees,

In response to defendant’s contentions about plaintiff's performance, plaintiff argues that

defendant could not have legitimately expected him to perform better than he did. On the issue
of the speed of plaintiff's progress, plaintiff notes that Edy Mentor took as long as 32 months to

complete his training, and that Latorre advised Martinez that plaintiff might be able to succeed if

he was given two additional years of training. Plaintiff further notes that Rigg often was

2 Priority 1 tasks are tasks that inspectors must master.

3 The same August 28, 2001 progress chart that places plaintiff's Priority 1 task
completion at 11.1% shows Cruz’s to be 15.4%. The court resolves factual disputes in plaintiff's
favor for the purpose of deciding defendant’s motion for summary judgment. See Parkins v.
Civil Constructors of Il., Inc., 163 F.3d 1027, 1032 (7" Cir. 1998).

10



discriminatory reason for the employer’s action. Adams v. Wal-Mart Stores, Inc., 324 F.3d 935,

939 (7" Cir. 2003).

Plaintiff points to only one statement by Martinez that he contends constitutes direct
evidence that Martinez terminated him for discriminatory reasons. In an affidavit, Martinez
responded to a question regarding whether plaintiff had made complaints based on race, national
origin, or age by stating: “No. I have hired people of all races, national origin, and ages; I try to
get a good mix.” Plaintiff argues that this statement establishes that Martinez made employment
decisions, including the decision to terminate plaintiff, based on discriminatory criteria.

The court disagrees. Statements offered as direct evidence of discrimination must “Telate
to the specific employment decision in question.” Oates v. Discovery Zone, 116 F.3d 1161, 1170
(7 Cir. 1997). Even if Martinez’s statement could be construed to mean that he used
discriminatory criteria in hiring, plaintiff has offered no evidence that Martinez used
discriminatory criteria in making decisions relating to existing employees. See Fuka v. Thomson
Consumer Elecs., 82 F.3d 1397, 1403-04 (7" Cir. 1996) (evidence of discriminatory hiring
practices insufficient to establish direct evidence that termination decision was based on
discriminatory animus).

Plaintiff next claims that two of plaintiff's co-workers who, like plaintiff and Martinez
were of Puerto Rican national origin, told Martinez that plaintiff was an embarrassment to Puerto
Ricans. Plaintiff argues that this is direct evidence that Martinez terminated plaintiff in an effort
to increase racial pride among the Hispanic employees. The evidence plaintiff offers falls far
short of direct evidence of discrimination. The record indicates that, while the co-workers

believed that plaintiff was an embarrassment to Puerto Ricans, they advised Martinez only that



Plaintiff countered that Rigg often was unavailable to train him. Rigg frequently was
required to travel to other cities. In addition, plaintiff's work hours overlapped with Rigg’s for
only part of the day, due to their different work schedules. Plaintiff complained that Rigg’s
absences had a negative effect on his training.

In plaintiff's second month of training, Rigg requested that another instructor evaluate
plaintiff to see if there was something Rigg was missing. Martinez assigned Senior Inspector
Sam Latorre to give plaintiff some training and evaluate him; Rigg remained plaintiff's primary
trainer. Latorre reported to Martinez that plaintiffs oral and written communication skills were
weak, and that plaintiff had difficulty retaining information. Latorre felt that plaintiff was the
weakest inspector he had observed in the eleven years he had been on the job. Latorre advised
Martinez that plaintiff might be able to succeed, but that it would require much more intensive
training than was normally provided, and estimated that it would require two additional years of
training.

To address plaintiff's problems using computers, plaintiff was enrolled in a computer
instruction course. Plaintiff took at least three times as long as the others in the course to
complete it. Plaintiff was also provided with a laptop computer on which to train at home.

In March 2001, fellow inspector David Dillon trained plaintiff twice. Dillon observed
that plaintiff had difficulty understanding and retaining information, and that he did not
understand computers. Dillon reported to Martinez that plaintiff had difficulty remembering how
to perform simple tasks such as fueling a government car, even though he had been trained on the
task the previous day.

Plaintiff also received some training from fellow inspector Clement Corpus. Corpus



of Puerto Rican and Mexican origin. Martinez became plaintiffs supervisor.

An Aviation Safety Inspector’s duties include assuring that aircraft comply with federal
aviation regulations; reporting deficiencies; investigating public complaints, congressional
inquiries, and aircraft accidents; testifying in court; and evaluating air carriers, agencies, and
operators for certification. These duties require analytical skills, as well as oral and written
communication skills.

Inspectors must complete a one-year probationary period, during which they are assessed
to determine whether their performance demonstrates fitness for continued employment.
Training is given in three levels, by trainers who are also inspectors: in Level 1, the job function
is explained to the trainee; in Level 2, the trainee observes the job function being performed; and
in Level 3, the trainee performs the job function under supervision. The trainers submit monthly
reports on each trainee, and Martinez meets with the trainers to discuss the trainees’ progress.
Martinez also has daily interaction on the job with trainers and trainees.

Donald Rigg was assigned to be plaintiff's primary trainer. Plaintiff was Rigg’s first
trainee. In plaintiff's first month of training, Rigg reported that plaintiffs performance was
substandard. Specifically, Rigg reported that plaintiff did not grasp instructions readily, he was
disorganized, and was a weak writer. Rigg felt that plaintiff's inability to retain information was
amajor problem. Rigg observed that plaintiff was “computer illiterate,” that he took an
unreasonably long time to document his work on the computer, that he was unable to follow
Rigg’s written directions on how to use the computer, that he was unable to follow sample
training records or fill out his time card, and that he would forget what paperwork he had been

given.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RAYMOND RIVERA MARQUEZ, )
)
Plaintiff, )
) 03 C4970
v. )
) Judge George W. Lindberg
NORMAN Y. MINETA, Secretary of ) ..
Department of Transportation, ) i
)
Defendant. ) 0c KE TE 2
cs
A
MEMORANDUM OPINION AND ORDER SPR Q2 2004

Plaintiff Raymond Rivera Marquez’s complaint alleges claims of discrimination based on
age, under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; and
race and national origin, under Title VII of the Civil Rights Act of 1964 (“Title VII’), 42 U.S.C.
§ 2000e et seq. Before the court is defendant’s motion for summary judgment. For the reasons
stated below, the motion for summary judgment is granted,

I. Factual Background

The following facts are undisputed, unless otherwise noted.’ Plaintiff was hired on
February 25, 2001 as an Aviation Safety Inspector by the Federal Aviation Administration
(“FAA”), an agency under defendant. Plaintiff was sixty-one years old when he was hired, and is
Hispanic and Puerto Rican. Plaintiff had previously worked as an aviation mechanic, and
worked as a mechanic for American Airlines from 1977 until his retirement in 1999. Plaintiff

was recruited for the position with the FAA by Gerardo Martinez, a forty-one-year-old Hispanic

' Defendant’s untimely response to plaintiff's statement of additional facts has been
stricken. Accordingly, all properly supported, admissible material facts set forth in plaintiff's
statement are deemed admitted. See LR 56.1(a).

QPy


believed that plaintiff might be able to succeed as an inspector given two additional years of
training, he noted that significantly more intensive training would be required than was normally
provided. Indeed, Latorre, who had trained nearly every inspector in the office, concluded that
plaintiff was the weakest trainee he had seen in his eleven years on the job.

Defendant is charged with the weighty responsibility of protecting the safety of the flying
public, and certainly can legitimately expect a certain level of competency from FAA inspectors.
Here, the record shows that plaintiff simply did not meet defendant’s legitimate expectations.
The court concludes that plaintiff has not established that he was performing his job satisfactorily
when he was terminated, and accordingly has not established a prima facie case of
discrimination.

Even if plaintiff could establish the prima facie case, he has not established a genuine
issue of fact as to whether defendant’s proffered reason for his termination was pretextual. “A
pretext, in employment law, is a ‘phony reason’ that the employer offers for engaging in
discriminatory conduct...” Mills v, First Fed. Sav. & Loan Ass’n, 83 F.3d 833, 845 (7" Cir.

1996). Thus, at this stage of the McDonnell Douglas analysis, plaintiff would have to establish
that Martinez did not honestly believe he was terminating plaintiff because of his unsatisfactory
job performance. See Gordon v. United Airlines, Inc., 246 F.3d 878, 888-89 (7" Cir. 2001).
Plaintiff has offered no evidence that Martinez did not honestly believe that he was
terminating plaintiff for his poor performance. Plaintiff claims that Martinez instructed Rigg to
be hard on plaintiff, implying perhaps that Martinez was setting plaintiff up to fail. However,
plaintiff's citations to the record do not support this claim. In addition, as noted above, plaintiff
has offered no admissible evidence in support of his claim that Rigg prevented other inspectors

from signing off on plaintiff's Level 3 tasks. Furthermore, as the court has discussed, plaintiff

12