At the time plaintiff filed this case, Thomas J. Ridge was the Secretary of the 1

Department of Homeland Security. During the pendency of this case, Michael Chertoff assumed

the position of Secretary of the Department of Homeland Security. Pursuant to Fed. R. Civ. P.

25(d)(1), Mr. Chertoff has been automatically substituted as the defendant in this case. 

Plaintiff filed a 56.1(b) statement of additional facts, but did not file a written response 2

to defendant’s 56.1 statement of uncontested material facts. Accordingly, defendant’s facts are

deemed admitted pursuant to Local Rule 56.1. See also, F.T.C. v. Bay Area Business Counsel,

Inc., 425 F.3d 627, 633 (7th Cir. 2005). 

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

RONALD J. TYE, )

)

Plaintiff, )

) Case No. 03 C 5931

v. )

) Judge Virginia M. Kendall

MICHAEL CHERTOFF, Secretary, )

Department of Homeland Security, )

)

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant Michael Chertoff , Secretary, Department of Homeland Security (“Defendant”),

1

moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment as to plaintiff Ronald

Tye’s (“Tye” or “Plaintiff”) one-count complaint alleging a violation of the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et. seq. (“ADEA”). Because Plaintiff has raised no genuine issue

of material fact suggesting that Defendant’s reasons for not promoting Plaintiff were pretextual,

Defendant’s motion is granted. 

Undisputed Facts

The facts in this case are uncontested, unless specifically noted. Tye was born on July 25, 2
2

1949 and began working for the federal government in 1975. Compl. at ¶ 4. In 1987, Tye became

a Special Agent, GS-13 with the Department ofTreasury, U.S. Customs Service in Chicago, Illinois,

which is now part of the Department of Homeland Security (“Department”). Def.’s 56.1 Stmt. ¶ 2.

Tye remained in that position at all times relevant to this case. Id. 

In February 2000, at the age of fifty, Tye applied to be a Group Supervisor, GS-14, within

the U.S. Customs Service. Def.’s 56.1 Stmt. at ¶4. The application process for open group

supervisor positions was governed by the Customs Automated Application Processing System

(“CAAPS”). Id. at ¶ 6. Under CAAPS, each applicant was assigned a numerical score based on the

information in their application. Id. at ¶ 7. Then, as group supervisor positions became available

within the U.S. Customs Service, the applicants for those positions with the ten highest numerical

scores were placed on a “competitive certificate” or “best-qualified” or “BQ” list. Id. at ¶¶ 8-9, Tye

Dep. at 23-24. Defendant deemed each applicant on the BQ list for a specific position qualified for

that position, and Tye admitted that the supervisor was free to choose any of the ten persons on the

BQ list. Def.’s 56.1 Stmt. at ¶ 9, Tye Dep. at 27-28. The BQ list for each open position was

forwarded to the person in charge of filling the vacancy (the “Selecting Officer”). Id. at ¶ 9. Under

CAAPS, the Selecting Officer was free to choose any one of the ten individuals listed on the BQ list

to fill the corresponding vacant position. Id. at ¶9. 

In March 2000, Elissa A. Brown (“Brown”) became the Special Agent in Charge (“SAC”)

for the Office of Investigations in Chicago. Id. at ¶ 11. For purposes of this motion, both parties

agree that Brown was the selecting officer tasked with choosing the people to fill the two vacant

group supervisor positions at issue in this case. Prior to being named SAC for the Office of

Investigations in Chicago, Brown worked at the U.S. Customs Service Headquarters in Washington,
3

D.C. Id. at ¶ 11. Tye never worked at the Headquarters in D.C. Id. at ¶ 11. Tye also never worked

with Brown and Brown never had any supervisory authority over him. Id. at ¶ 13. 

Between the time Brown became SAC and when the promotions at issue in this case

occurred, Brown and Tye only had one brief interaction. Id. at ¶ 15. That interaction occurred in

Brown’s office when Tye showed her a book of his professional accomplishments and expressed an

interest in becoming a supervisor if the opportunity arose. Id. at ¶ 15. 

In April 2000, Tye learned that his application for a group supervisor position generated a

numerical score of 243 under the CAAPS process. Id. at ¶ 16. Two months later, Defendant created

a BQ list for two vacant group supervisor positions. The first position was in the Financial

Investigations Division in Chicago (“Chicago group supervisor position”) and the second position

was at O’Hare International Airport (“O’Hare group supervisor position”). Id. at ¶ 17. Based on his

numerical score, Defendant ranked Tye second on the BQ list for the Chicago group supervisor

position and first on the BQ list for the O’Hare group supervisor position. Id. at ¶ 17. U.S. Customs

Agent Lindsey LaJoie, who was promoted to the Chicago group supervisor position, ranked fifth on

the BQ list for that position with a numerical score of 232. Id. at ¶¶ 17, 20. U.S. Customs Agent

Richard Fahy, who was promoted to the O’Hare group supervisor position, ranked seventh on the

BQ list for that position with a numerical score of 228. Id. at ¶¶ 17, 20. 

As SAC, Brown was tasked with recommending one candidate from each applicable BQ list

to fill the vacant supervisory positions in Chicago and at O’Hare. Id. at ¶ 18. Brown recommended

LaJoie and Fahy for the Chicago and O’Hare positions, respectively. Id. at ¶ 18. Brown forwarded
As stated above, for purposes of this motion, both parties stipulate that Brown, not 3

Varrone, made the de facto hiring decision. Id. at ¶ 19. 

4

her recommendations to John Varrone, who made the ultimate promotion decision. Id. at ¶ 19.3

Although Brown did not know the applicants’ exact ages, she knew that Tye was older than LaJoie

and Fahy. Id. at ¶ 21. Brown personally worked with LaJoie and Fahy prior to recommending them

for the disputed supervisory positions and both had previous experience working at the Department’s

headquarters in Washington D.C. Id. at ¶¶ 24-25. 

Discussion

To succeed on his motion for summary judgment, Defendant must show that the pleadings,

depositions, answers to interrogatories, and admissions on file, together with any admissible

affidavits do not create a genuine issue of material fact and that Defendant is entitled to judgment

as a matter of law. Fed.R.Civ.P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In

considering this motion, theCourt must construe all facts in the light most favorable to Tye and must

view all reasonable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). The Court, however, will “limit its analysis of the facts on summary judgment to evidence

that is properly identified and supported in the parties’ [Local Rule 56.1] statement.” Bordelon v.

Chicago Sch. Reform Bd. Of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed

statement of fact is supported by the record and not adequately rebutted, the court will accept that

statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to

specific support in the record, an unsubstantiated denial is not adequate. See Albiero v. City of

Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878,

887 (7th Cir. 1998) (“Rule 56 demands something more specific than the bald assertion of the
5

general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts

establishing the existence of the truth of the matter asserted.”).

To establish an age discrimination claim under the ADEA, a plaintiff must show that he

would have received the promotion “but for” his employer’s intentional age discrimination. 29

U.S.C. § 623; Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003). Tye concedes that he

does not have any direct proof to support his discrimination claim and instead attempts to prove his

claim using the indirect method recognized in McDonnell Douglas Corporation v. Green, 411 U.S.

792 (1973). Under the indirect method, in order to defeat Defendant’s motion for summary

judgment, Tye must establish a prima facie case of age discrimination. Cerutti, 349 F.3d at 1060.

To meet this burden in the failure-to-promote context, he must show that: (1) he was a member of

a protected class; (2) he applied for and was qualified for a promotion; (3) he was rejected for the

promotion; and (4) a similarly situated employee outside of his protected class received the

promotion. Rabinovitz v. Pena, 89 F.3d 482, 486 (7th Cir. 1996). If Tye establishes a prima facie

case of discrimination, then the burden shifts to Defendant to state a legitimate, non-discriminatory

reason for his actions, after which Tye must show that those reasons are merely a pretext for a

discriminatory reason. Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309,

321 (7th Cir. 2003).

A. Tye’s Prima Facie Case

Defendant concedes that Tye has established the first three elements of his prima facie case.

However, Defendant argues that Tye was not similarly situated to LaJoie and Fahy because in

contrast to Tye, both had prior working relationships with Brown and Brown was familiar with their

career experience and proven performance. Def.’s Mem. at 9. 
6

Tye has met the burden of showing a prima facie case of discrimination as he was similarly

situated to the younger employees who received the promotions. Tye was on the BQ list for both

the Chicago and O’Hare group supervisor positions, and Defendant concedes that each person placed

on the BQ list for a specific position is considered to be qualified for that position. Def. 56.1 Stmt.

at ¶ 9. The BQ list for each position contained the names of the 10 applicants with the highest scores

from the CAAPS, and the selecting official could choose any of those ten persons. Id. at ¶ 7, 9.

Accordingly, although Tye may not have possessed exactly the same qualities as the two employees

who received the position, Tye was found to be one of ten people qualified for each of the positions,

and was therefore similarly situated to LaJoie with respect to the Chicago position and Fahy with

respect to the O’Hare position. Therefore, Plaintiff has established the elements of a prima facie

age discrimination case. 

B. Pretext

Once Tye has created a prima facie case of discrimination, the burden shifts to Defendant to

articulate a non-discriminatory reason for failing to promote Tye. Rabinovitz, 89 F.3d at 487.

According to Defendant, Brown, the selecting officer, chose to promote LaJoie and Fahy over Tye

because: (1) Tye had not worked at defendant’s headquarters in Washington D.C.; (2) Brown had

previously worked with both LaJoie and Fahy and knew of their performance in past positions; (3)

Brown had not previously worked with Tye and was not familiar with his career experience; (4) Tye

was not on her “radar”; and (5) Brown wanted LaJoie and Fahy for the open group supervisor

positions. Each of these reasons are non-discriminatory, thus shifting the burden back to Plaintiff

to produce evidence suggesting that Defendant’s proffered reasons are merely a pretext for

discrimination. Cerutti, 349 F.3d at 1061.
7

Pretext “means a lie, specifically a phony reason for some action.” Millbrook v. IBP, Inc.,

280 F.3d 1169, 1175 (7th Cir. 2002) (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.

1995)). To show pretext, Tye “must do more than demonstrate that the employer made a mistake

or that the employer’s reason was not good enough to support its decision.” Balderston, 328 F.3d

at 323. In a failure-to-promote claim, Plaintiff “must establish that her credentials were so superior

to the credential of the person selected for the job that no reasonable person, in the exercise of

impartial judgment, could have chosen the candidate selected over the plaintiff for the job in

question.” Jordan v. City of Gary, Indiana, 396 F.3d 825, 834 (7th Cir. 2005), quoting Millbrook,

280 F.3d at 1181. The Court’s only concern in reviewing an employer’s reasons for not promoting

Plaintiff is the honesty of the employer’s beliefs. Balderston, 328 F.3d at 323. Employers, not this

Court, are entitled to define the core qualifications for a position, so long as the criteria utilized by

the companies are not discriminatory in nature. Cerutti, 349 F.3d at 1064-65. This court is not “a

super-personnel department that reexamines an entity’s business decisions.” Balderston, 328 F.3d

at 324 (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). 

Tye makes two types of arguments in support of his contention that Defendant’s proffered

reasons for not promoting him are a pretext for discrimination. First, Tye argues that Defendant has

an unwritten policy to promote individuals under the age of forty, making Brown’s decision to hire

Fahy and LaJoie on the basis of their other skills and prior experience a pretext for a decision to hire

persons under the age of forty. Second, Tye argues that Brown’s statements during the course of the

EEOC investigation and this litigation are inconsistent, implying that Brown’s motives for her

decision are dishonest and pretextual. 
8

1. The Unwritten Policy at the Department

In support of Tye’s position that the Department has an unwritten policy of promoting

individuals under the age of forty, Tye relies upon a self-serving statement from one of his former

colleagues and a two-page list of Department employees. Pltf. 56.1 Stmt. Exs. N & Q. Neither of

these documents permit denial of summary judgment. The statement from Tye’s former colleague

is an unsworn statement not permissible under Fed. R. Civ. P. 56(e), and the testimony would be

largely inadmissible at trial because it contains information not based on personal knowledge and

contains speculative conclusions. See Fed. R. Evid. 602; Visser v. Packer Engineering Assoc., Inc.,

924 F.2d 655, 659 (7th Cir. 1991). If such inadmissible statements could defeat summary judgment,

“[d]iscrimination law would be unmanageable [because] disgruntled employees-the friends of the

plaintiff and often people in the same legal position as the plaintiff-could defeat summary judgment

by affidavits speculating about the defendant's motives.” Visser, 924 F.2d at 659.

The two-page list of Department employees is similarly insufficient as a basis for denying

summary judgment. The two-page list purportedly includes the names and ages of people who

were promoted to supervisory positions within the Department from 1998 to 2004. See Pltf. 56.1

at Ex. Q. The chart would be inadmissible at trial as the record contains no evidence as to how this

summary chart was created, or whether it is a business record of the Department. See Fed. R. Evid.

802, 803(6). Even if the chart were admissible, however, it is not clear what conclusion Plaintiff

seeks to draw from this chart. The list contains a column for “date” and a column for date-of-birth.

If “date” is the date of promotion, then the ages for each of the person do not match the ages listed

in Plaintiff’s statement of material facts (which ages purportedly rely on this chart); in addition, if

the “date” is the date of promotion then over half of the persons listed on the chart were over the age
 Tye’s request for leave to conduct a statistical analysis is denied. Tye made this request 4

after defendant’s motion for summary judgment was fully briefed and after discovery in this case

had been extended by more than six months. The request is untimely and will not be allowed. 

Without providing a supporting citation to the record, plaintiff also asserts that defendant 5

“has admitted that every candidate under the age of 50 that was identified on the certified best

qualified list on June 19, 2000 and June 20, 2000, has been promoted with the exception of

plaintiff.” Pltf. Resp. at 7. Because plaintiff has failed to include this fact in his statement of

additional facts, the Court will disregard it. See Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill.

2000). 

9

of forty at the time they were promoted, contradicting Plaintiff’s theory that the chart provides

evidence of pervasive discrimination. 

Additionally, in order to rely on statistical evidence to support an inference of discrimination,

a plaintiff in Tye’s position “must subject all of the employer's decisions to statistical analysis to find

out whether [age] makes a difference.” Millbrook, 280 F.3d at 1177 (quoting Kuhn v. Ball State

Univ., 78 F.3d 330, 332 (7th Cir. 1996)). A two-page list of names and ages, without a statistical

analysis of each of the hiring criteria considered by defendant in making the supervisory promotion

decisions, cannot defeat summary judgment. Accordingly, the Court finds that neither the 4

statement by Tye’s former colleague, nor the two-page list with names of Department employees,

support Tye’s argument that Defendant had an unwritten policy to only promote employees under

the age of forty to supervisory positions.5

2. Inconsistent Statements by SAC Brown

Tye’s second argument is that Brown’s explanations for the decision to promote LaJoie and

Fahy instead of Tye are both internally inconsistent and inconsistent with the testimony of other

Department personnel. Tye cites to what he contends are inconsistencies in Department personnel’s

proffered non-discriminatory reasons for passing him over for the disputed promotions, but the
10

record does not support Tye’s contention that these statements are internally inconsistent, nor does

the record support that Brown’s non-discriminatory explanations altered over the course of the

investigation.

First, Tye argues that Brown’s testimony at an administrative hearing in 2003 contradicts

the language in two letters she drafted in 2000 an her affidavit from 2001. See Def. 56.1 Stmt.,

Admin. Tr.; Pltf. 56.1 Exs. I & J (letters), Ex. K (affidavit). Specifically, Tye argues that Brown

stated in the 2000 letters and the 2001 affidavit that she reviewed the credentials of all ten candidates

on the BQ lists for both disputed positions before selecting LaJoie and Fahy, but that at the

administrative hearing in 2003 she testified that she did not consider Tye’s credentials or experience

when she decided to hire LaJoie and Fahy. Pltf. Resp. at 6-7. Contrary to Tye’s argument and

consistent with Brown’s testimony at the 2003 administrative hearing, the 2000 letters do not state

that she “considered and compared the packages of the ten applicants, and after the comparison

determined that LaJoie and Fahy were the most qualified in the group.” The 2000 letters address

the reasons Brown chose the other candidates and not to the review process, not Brown’s personal

review process for the ten candidates. Likewise, the statements in the 2001 affidavit are consistent

with the 2003 testimony, as the 2001 affidavit discusses the basis for her decision to choose the

candidates she chose, and her relationship with other members of the Department. Accordingly, the

relationship between Brown’s 2003 testimony and her prior written testimony and records do not

support a finding of pretext. 

Next, Tye contends that Brown falsely stated that in her 2001 affidavit that she consulted

with Lee Wattenbarger and James Zegel before recommending LaJoie and Fahy for the disputed

promotions. See Pltf. 56.1 Stmt. Ex. K. Brown stated in her affidavit that she consulted with
11

Wattenbarger and Zegel regarding promoting Fahy (not regarding LaJoie, as Plaintiff contends);

however, the statements of Wattenbarger and Zegel do not contradict Brown’s affidavit. See id. at

Pg. 2 (Brown 2001 Aff.); Exs. L & M. In Wattenbarger’s declaration, he stated in response to

affidavit questions about whether he made the recommendation for selection of candidates other than

Plaintiff that he was not part of the selection process that resulted in the promotions of LaJoie and

Fahy. See Pltf. 56.1 Stmt. Ex. L. Similarly, in Zegel’s statement, he testified that he was not the

selecting official or the recommending official, and also testified that Brown had asked his opinion

of several different employees. See Pltf. 56.1 Stmt. Ex. M. These statements are not contradictions

of Brown’s affidavit testimony that she discussed the different candidates with Wattenbarger and

Zegel but made the recommendations to promote LaJoie and Fahy herself.

Finally, Tye argues that John Varrone directly contradicted Brown’s statement regarding the

benefit of having past work experience at the Department’s headquarters. Pltf. Resp. at 7-8. Again,

Tye mischaracterizes the evidence in the record. At his deposition, Mr. Varrone stated that a lack

of headquarters experience was not necessarily an impediment to being promoted to a group

supervisor position within the Department. Varrone Dep., Pltf. Ex. R. at 45. However, Varrone’s

opinion does not contradict Brown’s statement that she believed on the basis of her knowledge that

LaJoie and Fahy’s personal headquarters experience would be beneficial for the specific supervisory

positions to which they were promoted. Additionally, Varrone testified that he deferred to Brown’s

decision as to which people had the best skill sets to fill a given supervisory vacancy. 

Plaintiff relies upon Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 676 (7th Cir.

2003), for the position that any inference of untruthfulness by the employer precludes summary

judgment. Pltf. Resp. at 7. But the employer in Zaccagnini gave different non-discriminatory
12

reasons throughout the course of the litigation, including one in the summary judgment reply brief,

creating an inference that the employer was obscuring the real reason for terminating the plaintiff.

See Zaccagnini, 338 F.3d at 677-78. In the case before the Court, not only are the statements not

inconsistent in the ways suggested by Tye, but Brown’s non-discriminatory reason for failing to

promote Tye has remained the same throughout every document presented: she knew and valued the

skills and past work experience of LaJoie and Fahy, which experience and past relationship Tye did

not have.

Finally, there is no evidence that Tye was so much more qualified than LaJoie and Fahy that

discrimination is the likely reason Tye was not promoted. See Rabinovitz, 89 F.3d at 487 (7th Cir.

1996) (requiring evidence that the candidate was so much more qualified that discrimination likely

entered the decision-making process in order to find evidence of pretext); Jordan, 396 F.3d at 834.

The only evidence presented is that Tye received a higher score on the CAAPS system, but the

record reflects and Tye relies upon the Department policy that the top ten candidates were considered

equally qualified for the position. The evidence in the record supports a finding that Brown

promoted LaJoie and Fahy over Tye because all three were eligible for promotion, she had worked

directly with LaJoie and Fahy in the past, and both had previous headquarters experience. 
13

Conclusion

Accordingly, the Court finds that there are no genuine issues of material fact and Defendant

has demonstrated that he is entitled to judgment as a matter of law. There is no evidence that

Defendant’s non-discriminatory reasons for failing to promote Tye are merely a pretext for unlawful

age discrimination. Therefore, the Court grants summary judgment in favor of Defendant.

So ordered.

 

 ________________________________________

Virginia M. Kendall, United States District Judge

Northern District of Illinois

Date: September 29, 2006