1 At the outset, the court notes that the Village’s papers are deficient in a number of

respects, needlessly complicating resolution of its motion (and perhaps this case). First, the

Village fails to provide the court with a coherent overview of the facts relevant to the motion.

Although the Village lists some facts in a terse Local Rule 56.1(a)(3) statement, this separate

required filing is a poor surrogate for setting out and developing the relevant facts in a party’s

brief. See, e.g., Malec v. Sanford, 191 F.R.D. 581, 585 (N.D. Ill. 2000) (“56.1 statements do not

abrogate a party’s obligation to recite its version of facts in its supporting memorandum.”)

Compounding this error, the Village has ignored the court’s Standing Order Regarding Motions

for Summary Judgment by failing to support those facts that are alleged in its brief with citation

either to its LR 56.1 statement or to the record itself. See Standing Order § I (“It is very helpful

if citations to facts in the memorandum are to both the 56.1(a)(1) documents establishing the fact

and to the 56.1(a)(3) statement.”)(emphasis in original); see also Malec, 191 F.R.D. at 583, 586

(noting that “[f]actual allegations not properly supported by citation to the record are nullities”

and advising that parties’ memoranda cite the relevant 56.1 statements). Because many of the

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BRUCE HIGGINS, CRAIG RUTZ and )

THOMAS LUDVIK, )

)

Plaintiffs, )

)

v. ) Case No. 03 C 1907

)

VILLAGE OF RIVER FOREST, a ) Honorable Joan B. Gottschall

Municipal Corporation, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Bruce Higgins, Craig Rutz and Thomas Ludvik have sued their employer, the Village of

River Forest Police Department (the “Village”), charging it with discrimination and retaliation

under Title VII, 42 U.S.C. § 2000e, et seq. and discrimination under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. Presently before the court is the Village’s

motion for summary judgment. For the reasons stated below, that motion is granted in part and

denied in part. 

I. BACKGROUND1
assertions in the Village’s brief do not find an analogue in its LR 56.1(a) statement and the brief

contains no record citations at all, the court is forced to rely solely on the facts in the 56.1(a)

statement in deciding this motion. See Albrechtsen v. Board of Regents of University of

Wisconsin System, 309 F.3d 433, 436 (7th Cir. 2002) (“‘Judges are not like pigs, hunting for

truffles buried in’ the record.”)(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991)). 

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The following facts properly before the court are relevant to the motion. Higgins and

Rutz are Caucasian males who are lieutenants in the Village’s police department. At the time

periods relevant to the complaint they were 53 and 51 years old, respectively. Ludvik, also a

Caucasian male, is a sergeant with the department who was 47 years old during the time periods

alleged in the complaint. Higgins held the position of Operations Commander and Rutz the

position of Administrative Division Commander until early 2002. At that time, the Village

restructured the police department and replaced those positions with two new positions: Deputy

Chief of Operations and Deputy Chief of Administration. Twelve applicants, including the

plaintiffs, applied for these new positions. 

A panel interviewed all the prospective candidates and made recommendations to Chief

Michael Holub. Holub appointed Sergeant Robert Jandrisits, a 50 year old Caucasian male, to

the Deputy Chief of Operations position and Patrol Officer Kendra Sullivan, a 38 year old

Caucasian female, to the Deputy Chief of Administration position. The plaintiffs subsequently

filed charges of age and sex discrimination with the EEOC, and brought this suit after receiving

their right-to-sue letters. The complaint reiterates the EEOC charges, and also alleges that the

Village retaliated against Higgins and Rutz for complaining about the alleged discriminatory

acts. Counts I, IV and IX of the complaint charge the Village with discriminating against

Higgins, Rutz and Ludvik on the basis of age, Counts VI and X charge the village with

discriminating against Rutz and Ludvik on the basis of gender, Counts II and III allege that the
2 Count VIII of the complaint charges the Village with age discrimination based on

Rutz’s loss of the position of Crime Prevention Officer. The Village mistakenly assumes that

Count VIII also complains of Rutz’s failure to secure the Deputy Chief of Administration

position, and it is this issue, which is not part of Count VIII, to which the Village’s summary

judgment argument is directed. 

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village improperly retaliated against Higgins for complaining about alleged age discrimination,

and Counts V and VII charge the Village with retaliation based on Rutz’s complaints of age and

gender discrimination.2

II. ANALYSIS

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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

matter of law.” FED. R. CIV. P. 56(c). The party opposing summary judgment may not rest upon

the pleadings, but “must set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is no genuine issue for trial

unless there is “sufficient evidence favoring the non-moving party for a jury to return a verdict

for that party.” Id. The party moving for summary judgment bears the initial burden of

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317 (1986).

A. Age Discrimination.

The Village first challenges Higgins’ age discrimination claim, noting that the individual

chosen for the job was only three years Higgins’ junior. To prevail on his claim, Higgins must

show either direct evidence of discriminatory intent or proceed under the burden-shifting method

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the latter method,
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Higgins must present evidence tending to show: (1) he was a member of the protected class

(here, persons 40 years old or older); (2) he was qualified for the job for which he applied; (3) he

was subject to a materially adverse employment action; and (4) a substantially younger

employee was treated more favorably. Zaccagnini v. Charles Levy Circ. Co., 338 F.3d 672, 675

(7th Cir. 2003). The Village challenges only the fourth McDonnell Douglas element, arguing

that the selection of a 50 year old over a 53 year old does not support a prima facie case of age

discrimination. See, e.g., Bennington v. Caterpillar Inc., 275 F.3d 654, 659 (7th Cir. 2001) (five

year age difference insufficient, by itself, to establish prima facie case of age discrimination

where both plaintiff and those allegedly favored over him were members of the protected class). 

Higgins counters that he has evidence of discrimination that provides either evidence of

direct discrimination or helps establish a prima facie case under McDonnell Douglas. According

to Higgins, he was the only candidate asked during the interview process about his plans to

retire, and Chief Holub commented on Higgins’ alleged impending retirement on other

occasions. Higgins argument fails in this circuit because an employer’s inquiries concerning an

employee’s retirement plans are not treated as evidence of unlawful conduct for purposes of

establishing ADEA claims. Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7th Cir. 1992) (asking

an employee when he plans to retire is not evidence of discrimination under the ADEA because

“a company has a legitimate interest in learning its employees’ plans for the future, and it would

be absurd to deter such inquiries by treating them as evidence of unlawful conduct”). See also

Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544 (6th Cir. 2004) (employer’s

concern about pending retirement is not the same as bias against age); Shorette v. Rite Aid of

Maine, Inc., 155 F.3d 8, 13 (1st Cir. 1998) (manager’s questioning regarding age of plaintiff and

his retirement plans were a “textbook example of an isolated remark which demonstrates
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nothing”). In fact, the evidence before the court suggests that it was Higgins who either first

raised the issue of his retirement with the Village, or at the very least did nothing to dispel its

impression that he intended to retire in the near future. See Holub Dep. Ex. 20 (performance

evaluation signed by Higgins indicated that he had attended a “pre-retirement seminar in

anticipation of separating from active duty in the next year”). 

Higgins also argues that his age discrimination claim should survive because the entire

selection process was a sham. Specifically, Higgins points to an application to attend a law

enforcement seminar executed by Jandrisits which listed his rank as “Deputy Chief” even though

the Village had yet to select the new Deputy Chiefs as of the date of the application. Perhaps the

selection process was rigged from the outset (an inference to which Higgins is entitled at the

summary judgment stage), but evidence of unfairness is not always evidence of age

discrimination, particularly when the goal of the alleged scheme is to replace one

quinquagenarian with another. Because Higgins has set forth no direct evidence of age

discrimination nor made a prima facie case under McDonnell Douglas, the court grants summary

judgment as to Count I of plaintiffs’ complaint.

The Village contends that summary judgment also is appropriate as to Rutz and Ludvik’s

age discrimination claims because discovery has failed to produce evidence of discrimination,

but the Village’s argument fails as to these plaintiffs. Rutz and Ludvik were vying for a position

ultimately filled by a 38-year-old, which distinguishes their claims from Higgins’ in two

respects. First, the age difference between Sullivan and Rutz and Ludvik is significantly greater

than the less than five year gap separating Higgins and his replacement Jandrisits. In fact,

Rutz–who is 13 years older than Sullivan–can make his prima facie case based on this age

difference alone. See, e.g., Hartley v. Wisconsin Bell, 124 F.3d 887, 893 (7th Cir. 1997) (ten
3 The Village elaborates somewhat in its reply, explaining that its decisionmakers

felt “Sullivan possessed the best intangible leadership and management skills to successfully

perform the Deputy Chief position.” Def.’s Reply at 6. This justification is nowhere to be found

in the Village’s statement of undisputed facts and therefore cannot be considered in ruling on

this motion. 

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year age difference “presumptively substantial” for purposes of determining whether a plaintiff

can make prima facie case). In addition, unlike Jandrisits, the 38-year-old Sullivan is not a

member of the protected class to which Rutz and Ludvik belong (40 and above for purposes of

the ADEA). Although Ludvik falls just short of the ten year presumption announced in Hartley,

in the court’s view he has established a prima facie case because the person who received more

favorable treatment was not a member of the protected class, and because the nine-year-plus age

difference between himself and Sullivan is sufficiently significant. See, e.g., Owens v. Top

Transp. Services, Inc., 168 F. Supp. 2d 866, 869 (N.D. Ill. 2001) (holding that an age disparity

just short of ten years can be presumptively substantial for purposes of establishing a prima facie

case and noting that “[t]he McDonnell Douglas analysis is not rigid, mechanized, or ritualistic”).

Because Rutz and Ludvik have established their prima facie cases, the burden shifts to

the Village to articulate a legitimate, nondiscriminatory reason for not selecting these plaintiffs.

Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 676 (7th Cir. 2003). This burden is

slight, requiring the Village to provide only a “facially legitimate” reason for its decision. Id. If

the Village can do so, the burden of proof reverts to plaintiffs to demonstrate that the proffered

reason is pretext. Id. The Village insists that Sullivan was chosen because she was “best suited

for the job,” but its LR 56.1 statement is completely silent as to any of Sullivan’s qualifications.3

Slight though the Village’s burden is, it has not been met here, so resolution of this issue must

wait until trial. The Village’s motion is denied as to Counts IV and IX. 
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B. Gender Discrimination. 

Rutz and Ludvik also charge the Village with gender discrimination under Title VII. As

with age discrimination, plaintiffs may offer direct evidence of gender discrimination or proceed

under the McDonnell Douglas burden-shifting framework. Mills v. Health Care Serv. Corp.,

171 F.3d 450, 454 (7th Cir. 1999). Rutz and Ludvik have opted for the latter approach. The

Seventh Circuit permits reverse gender discrimination claims to proceed under McDonnell

Douglas, with the caveat that the majority employee show, in lieu of demonstrating membership

in a protected class, that there are “background circumstances” giving rise to an inference of

discrimination. Id. at 456-57. Such background circumstances include superior qualifications

on the part of the rejected employee or an employer’s expression of intense interest in hiring a

person from a protected class. Id. at 457. 

The Village contends that the record is devoid of any inference of reverse discrimination.

Rutz and Ludvik argue in response that the Village urged Sullivan to apply for the position and

then selected her despite the plaintiffs’ superior qualifications. Rutz notes that he:

• was Sullivan’s supervisor

• held a much higher rank (Lieutenant v. Patrol Officer)

• was a former Acting Chief, Operations Commander and Administrative

Commander

• had greater supervisory and training experience

Similarly, Ludvik notes that he:

• was Sullivan’s supervisor

• held higher rank and credentials (Detective v. Patrol Officer) 

• was more experienced
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• outscored Sullivan on a test administered to applicants for the Deputy Chief of

Administration position

The Village does not seriously dispute the existence of Rutz and Ludvik’s allegedly

superior qualifications, but nevertheless dismisses them as “vague rhetoric,” arguing that the

qualifications (with the possible exception of the test scores) are merely indicia of a longer

tenure with the department, and employers are entitled to make decisions on the basis of factors

other than seniority. The Village certainly is entitled to consider factors beyond seniority when

promoting its employees, but such arguments go to the proffered reasons why Sullivan was hired

rather than to the plaintiffs’ prima facie case. All things being equal, it is the irrational employer

that foregoes candidates with superior training, experience and track records of promotion in

favor of a candidate who does not possess these attributes. See, e.g., Harding v. Gray, 9 F.3d

150, 153 (D.C. Cir. 1993)(“[I]f a more qualified [majority] applicant is denied promotion in

favor of a minority applicant with lesser qualifications, we think that in itself raises an inference

that the defendant is ‘that unusual employer who discriminates against the majority.’”)(internal

citation omitted). As with Rutz and Ludvik’s age discrimination claims, they have provided

enough evidence to impose the minimal burden on the Village of explaining why it chose

Sullivan for the Deputy Chief position. And as above, while the Village may have colorable

reasons for selecting Sullivan, they are unsupported by proper citation to the record. Summary

judgment is denied as to Counts VI and X. 

C. Retaliation.

The Village also contends that summary judgment is appropriate as to Higgins and

Rutz’s retaliation claims. To establish a prima facie case for unlawful retaliation, a plaintiff

must prove three elements: (1) he engaged in statutorily-protected expression; (2) he suffered an
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adverse employment action; and (3) there was a causal link between the protected expression

and the adverse action. Krause v. City of La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001).

Higgins complains that he was refused sick leave, was ordered to document personal and private

conversations, was penalized for refusing to do so, was prohibited from having contact with the

Village’s police department, and that his friends, fellow officers and acquaintances were

questioned frequently about his sick leave. Rutz maintains that his reassignment from the

position of Crime Prevention Officer to patrol officer constituted an adverse employment action. 

The Village contends that summary judgment is appropriate as to Higgins’ claims

because a denial of a brief sick leave request is not an adverse employment action, but ignores

Higgins’ evidence supporting other instances of alleged retaliation, such as the prohibition

against contact with the police department, which the court already has explained may raise a

fact question as to whether the adverse action was sufficiently significant. See Higgins v. Village

of River Forest, No. 03 C 1907, Docket No. 47, at 4 (N.D. Ill. Mar. 26, 2004). The Village also

maintains that it may punish Higgins for disobeying the direct orders that Higgins claims

constitute retaliation, but this argument fails because an employer may not insulate itself from

liability based on the proposition that even unlawful orders must be followed. See, e.g., Johnson

v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000) (“[A]n employee is protected

against employer retaliation for opposing any practice that the employee reasonably believes to

be a violation of Title VII ... including ... refusing to obey an order because the worker thinks it

is unlawful under Title VII.”). Summary judgment is denied as to Counts II and III. 

Finally, the Village contends that summary judgment is appropriate as to Rutz’s

retaliation claims because Rutz has not suffered an adverse action and because there is no causal

relationship between the Rutz’s alleged adverse action and the protected conduct. The former
4 Plaintiffs assert that causality is not at issue, but they do not explain why. The

Village’s argument, though minimal, is properly before the court.

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argument is without merit as Rutz has set forth sufficient evidence to raise a fact question as to

whether his assignment to “mundane” new duties as patrol officer (e.g. reporting whether or not

street lights were burned out) constituted an adverse employment action. Plaintiffs, however, do

not even respond to the causality argument.4

 Absent an argument that there is evidence tending

to raise a fact question as to whether Rutz’s reassignment to the position of patrol officer was in

some way motivated by his allegations of discrimination, Rutz must be deemed to have waived

any such contention, and the court grants summary judgment as to Counts V and VII. 

III. CONCLUSION

For the foregoing reasons, the court grants defendant’s motion for summary judgment as

to Counts I, V and VII of plaintiffs’ complaint and denies the motion as to the remaining seven

counts. 

ENTER:

 /s/ 

 

Joan B. Gottschall

United States District Judge

DATED: August 24, 2005