City of Jackson, Miss., 125 S.Ct. 1536 (2005) (age discrimination) ;
O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004)
(gender discrimination) .

Proof of discrimination in employment may be by either the
direct method or the indirect method. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)(Title VII case). Under the indirect
method of proof (sometimes called the “disparate impact” method)
where there is no, or insufficient, direct evidence of
discrimination, other factors come into play. Once an employer
makes a prima facie case of deficiencies in the plaintiff's
performance, in order to withstand summary judgment, the plaintiff
must make a prima facie case that the employer’s claimed reasons
for the adverse action are pretextual. O’Neal, supra, 392 F.3d at
911. The issue then must be determined by the trier of fact based
upon a preponderance of the evidence. In Smith, supra, a plurality
of the Court held that the disparate impact analysis formulated in
McDonnell Douglas, supra, may be applied to ADEA cases. Smith, 125
S.Ct. at 1544.

Discussion

When defendants filed their motion for summary judgment they
supported it with, among other things, the statement of material
facts required by Local Rule 56.1 and the transcript of a
deposition given by Mr. Clay. They also served upon Mr. Clay the

notice to pro se litigant opposing motion for summary judgment,


All other pending motions are moot.

ENTER ORDER:

Elaine E. Bucklo
United States District Judge

Dated: December JQ, 2005


all of the other trainees were wearing janitorial uniforms and
appeared to be younger than him; and 2) that on an occasion when
Ms. Huff asked for volunteers to work at a job site, he volunteered
but was not chosen. He has not alleged any personal knowledge as to
the criteria for selection process for the assignment or as to
whether anyone was selected in his place. He did not inquire as to
the ages of the other trainees nor did he see any documentation
that revealed their ages. He never heard anyone at IDHS or Ada S.
McKinley indicate that his age motivated any of their actions.

On March 25, 2004, Mr. Clay filed a charge against IDHR with
EEOC. He did not name Ada S. McKinley in the charge. He did not
refer to age in the charge. On April 21, 2004, the EEOC sent him a
document entitled Dismissal and Notice of Suit Rights. The EEOC
found that it was unable to conclude that the information obtained
establishes violations of the statutes.

Proof of Age Discrimination

In general, to prove discrimination in employment under either
Title VII, which covers discrimination by reason of race, color,
gender, or national origin, or under the ADEA, which covers only
discrimination by reason of age, a plaintiff must show that: 1)
plaintiff is a member of a protected class; 2) the employee was
performing his/her job satisfactorily; 3) the employee suffered an
adverse employment action; and 4) the defendant treated similarly

situated employees outside his/her class more favorably. Smith v.


which Local Rule 56.2 requires. In response, Mr. Clay filed
nothing which effectively rebuts defendants’ version of the facts.
Defendants first challenge the complaint on procedural
grounds, contending that Mr. Clay’s EEOC charge did not allege age
discrimination and should not be considered, because none of the
allegations in the charge reasonably relate to his claim of age
discrimination. I agree. Although the boxes on the EEOC charge
form include one that states “age”, Mr. Clay did not check this
box. Instead, he checked the box entitled “other.” Neither does
his factual statement either mention age or give any other
indication that he could be complaining of age discrimination.
Even if Mr. Clay met the procedural requirements for a suit
against one or both of the defendants,’ Mr. Clay’s case would fail
on the merits. By admitting that he never heard anyone at IDHS or
Ada S. McKinley indicate that his age motivated any of their
actions, Mr. Clay has admitted that he has no direct proof of
discrimination. As to the indirect method of proof, in his
deposition, Mr. Clay admitted that he had no personal knowledge of
the ages of the individuals he claimed received more favorable

treatment or as to how they obtained their uniforms. Indeed, he

1 Ada S. McKinley was not mentioned in Mr. Clay’s charge.
Defendants argue that the filing of an administrative charge
against a specific party is a statutorily required predicate to the
filing of an action against the party in the district court.
However, that issue would turn on the relationship between the two
defendants, which is not documented in the record.

6


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

JOHN S. CLAY,

Plaintiff,

vs. No. 04 C 4802

DEPARTMENT OF HUMAN SERVICES
and ADA S. McKINLEY,

Defendants.

MEMORANDUM OPINION AND ORDER

This is an action for alleged age discrimination in
employment. Before the court is the defendants’ joint motion for
summary judgment. For the reasons stated below, I grant the motion
and dismiss the complaint with prejudice.

Plaintiff John Clay, pro se, sues defendants Illinois
Department of Human Services (IDHS) and Ada S. McKinley Community
Services (Ada S. McKinley) under the Age Discrimination In
Employment Act (ADEA), 29 U.S.C. § 623 et seq. Mr. Clay alleges in
his complaint that the defendants discriminated against him on
February 9, 2004, February 26, 2004, and March 15, 2004, by not
providing him with the proper uniform for a work training course
and for not providing him with training. He further alleges that
when he complained about these matters, he was forbidden to return
{to the program] “while others, who were younger, were trained &

dressed properly.”

\\


has offered no admissible evidence of discrimination, only his own
conjecture and speculation. Fed. R. Civ. P 56(e) provides in part
that on motions for summary judgment

Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would

be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters

stated therein. . . . When a motion for summary judgment

is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or

denials of his pleading, but his response, by affidavits

or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for

trial.
Rule 56(e) mandates the entry of summary judgment against a non-
moving party who fails to make the showing the Rule requires.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Mr. Clay further admitted that he did not submit proof of a
medical examination, which was also a prerequisite to entry into
the program.

For the foregoing reasons I find that the defendants have
supported their summary judgment motion with an adequate showing
that Mr. Clay’s participation in the Ticket To Work Program was
terminated because of insufficient performance, and that Mr. Clay
has failed to show the existence of a triable issue of material

fact. I grant the motion of defendants for summary judgment and

dismiss the complaint with prejudice. This case is terminated.


Standard of Review

Summary judgment is proper if the record shows that there is
no genuine issue as to any material fact, and that the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
On a motion for summary judgment both supporting and opposing
affidavits must be made on personal knowledge, must set forth such
facts as would be admissible in evidence, and must’ show
affirmatively that the affiant is competent to testify to the
matters stated therein. Fed. R. Civ. P. 56(e). In deciding a motion
for summary judgment, I must view all evidence in the light most
favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield
Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484
U.S. 977 (1987), and must draw all reasonable inferences in the
non-movant’s favor. Santiago v. Lane,894 F.2d 218, 221 (7th Cir.
1990).

Factual Background

John Clay is an armed forces veteran and suffers from a
disability that is not specified in the record. He was born in
1942. In the summer of 2003, Mr. Clay enrolled in “Ticket to
Work”, a program sponsored by the Social Security Administration
for Job seekers (Program). He contacted the IDHS office at 8840
Stony Island in Chicago, Illinois. Jennifer Perez, an IDHS
counselor, acted as liaison between Mr. Clay and various job

opportunities offered through the Program. Ms. Perez referred Mr.


Clay to Ada S. McKinley for enrollment in a janitorial training
program. She also informed Mr. Clay about two requirements for
enrollment: he had to secure a janitor’s uniform and submit
documentation showing that he took a physical examination prior to
enrollment. Mr. Clay alleges that Ms. Perez at one point told him
she would see if she could provide him with a voucher for purchase
of the uniform and thus misled him, but admits that he received a
document signed and dated by him on November 25, 2003 stating that
it was his personal and financial responsibility to purchase a
uniform and wear it to training. He implies, but does not offer any
proof, that other trainees who did have the required uniform when
they reported for training in February 2004, were given their
uniforms by the Program. He never complied with the requirement
that he obtain a _ uniform. As to the medical examination
requirement, Mr. Clay did not undergo a medical examination or
submit any medical documentation to the Program except to sign a
medical release form to be submitted to the Veterans
Administration.

On March 15, 2004, Ms. Shirley Huff, whom he identifies as the
program coordinator at Ada S. McKinley, told him he was ineligible
for the Program because he failed to obtain a uniform and failed to
submit the required medical documentation.

The alleged bases for his claim of age discrimination are: 1)

that on the occasions when he reported for training at the Program,