The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES DABNEY, SR.,
Plaintiff,
v. Case No. 3:17-CV-482-NJR-GCS
ILLINOIS DEPARTMENT OF
NATURAL RESOURCES,
Defendant.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on dueling motions for summary judgment. The
first motion was filed by Defendant Illinois Department of Natural Resources (“IDNR”)
on February 21, 2019 (Doc. 35). Instead of filing a response to IDNR’s motion, Plaintiff
James Dabney, Sr. (“Dabney”), filed his own Motion for Summary Judgment on March
13, 2019 (Doc. 41). For the reasons set forth below, the Court grants the IDNR’s motion
for summary judgment and denies Dabney’s motion.
FACTUAL BACKGROUND
Dabney initially filed this pro se employment discrimination action pursuant to
Title VII of the Civil Rights Act of 1964 on May 8, 2017 (Doc. 1). Dabney claims that the
IDNR unlawfully discriminated against him on account of his race when IDNR did not
select him for Site Superintendent II, a promotional position (Doc. 1). Shortly after the
case was filed, the Court directed Dabney to file an Amended complaint and attach a
copy of any Equal Employment Opportunity Commission (“EEOC”) discrimination
charge or right to sue notice issued by the EEOC (Doc. 5). Dabney filed his amended
complaint with attachments on August 14, 2017 (Doc. 6).
Dabney, who was hired by the IDNR in 2006 (Doc. 36-1, p. 12), alleges that in May
2015 he applied for an available Site Superintendent II position but was not selected to
fill the vacancy. Dabney claims that he was informed he was not selected for this higher
level position because he did not possess a bachelor’s degree, but asserts that “there are
many Caucasian[]” superintendents who do not hold a bachelor’s degree or have any
experience. Dabney claims that, including him, “[t]here are only two black
employees[,]”within the IDNR (Doc. 6, p. 3). He believes he was not selected for the site
superintendent position because the IDNR discriminated against him based on his race—
black—in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) (Doc. 6, pp. 2,
3). After learning he was not selected, Dabney filed a complaint with the EEOC in
November 2015 (Doc. 6-1, p.10). He received a right to sue notice from the EEOC in late
February 2017 (Doc. 6-1, pp. 1, 5). He then filed this action on May 8, 2017, within ninety
days of receiving the EEOC right to sue notice (Doc. 1).
In early October 2017, the IDNR filed its answer and affirmative defenses to the
amended complaint (Doc. 12). The IDNR denies that its failure to promote Dabney was
based on his race or that it violated his civil rights under Title VII in any way. The IDNR
also denies that many Caucasians are hired without any experience or degrees and that
the IDNR only had two black employees agency-wide (Id. at 3).
In February 2019, after discovery closed, the IDNR filed its motion for summary
judgment (Doc. 35). IDNR argues that it is entitled to summary judgment because
Dabney’s Title VII claim fails as a matter of law and is not supported with evidence. It
asserts that the record shows (1) Dabney was not qualified for the superintendent
position he sought; (2) the IDNR did not reject him for the superintendent position; and
(3) there was no employee selected as superintendent (Id. at 1). The IDNR specifically
points out that it took no adverse action against Dabney because of his race (Doc. 36, p. 2).
Rather, the IDNR explains that as part of the application process for the Site
Superintendent II position, the Illinois Department of Central Management Services
(“CMS”) assessed Dabney’s grade for the vacant Site Superintendent II position and
issued the decision that he was ineligible for the position (Id. at 5). The IDNR asserts that
it was not involved in the grading process for which CMS is responsible (Id. at 5, 6).
Further, the IDNR points out that CMS explained to Dabney that he did not have enough
training and experience for the superintendent position; it was not because Dabney
lacked a bachelor’s degree (Id. at 13). Upon filing its motion and memorandum of law
(Docs. 35, 36), the IDNR also filed a “Federal Rule of Civil Procedure 56 Notice” for
Dabney (Doc. 37).
Instead of filing a response in opposition, Dabney filed his own motion for
summary judgment (Doc. 41). In the cross-motion, Dabney restates allegations made in
his amended complaint that the IDNR did not consider him for the Site Superintendent
II position because of his race. He then alleges new facts that two other IDNR employees,
both Caucasian, were offered a temporary assignment to the vacant superintendent
position, but that he was not despite having more experience than one of the employees
approached (Id. at 1). Additionally, Dabney, for the first time, identifies a third IDNR
employee working at another location, who also initially was deemed ineligible for a site
superintendent position by the CMS. Dabney claims this third IDNR employee was
temporarily assigned to the superintendent position at the other location so that this
employee could obtain enough experience to receive an eligible grade from the CMS (Id.).
Dabney claims he was not afforded the same opportunity as this third employee.
Finally, Dabney’s motion includes a new claim against the IDNR for retaliation (Id.
at 2), something that was not alleged in either version of his complaint or the EEOC
discrimination charge (Docs. 1, 6, 6-1, p. 10). Among the various documents attached to
Dabney’s motion is what appears to be a new employment discrimination and retaliation
complaint dated March 12, 2019, which only sets forth facts surrounding retaliation
(Doc. 41, pp. 3-4, 7-8). The remaining documents consist of what appear to be portions of
Dabney’s EEOC file, including correspondence, memoranda, partial IDNR responses to
the EEOC complaint, union materials, and parts of Dabney’s IDNR personnel record (e.g.,
leave requests, time sheets, official reprimands, etc.) (Id. at 9-22). Dabney did not supply
the Court with any affidavits or other testimonial documentation, nor did he cite to the
record with regard to his allegations.
The IDNR responded to Dabney’s motion for summary judgment on May 7, 2019
(Doc. 48). The IDNR argues that Dabney failed to address any of its statements of material
facts, so the Court should consider the IDNR’s facts admitted under Rule 56(e) of the
Federal Rules of Civil Procedure (Id. at p. 2). The IDNR again reiterates that Dabney is
not entitled to summary judgment on his discrimination claim in the context of failing to
promote because Dabney cannot carry his burden of making a prima facie case (Id.).
Specifically, the IDNR argues that he cannot produce evidence that a similarly situated
non-African American comparator was treated more favorably than he was (Id.). The
IDNR also argues that this Court should disregard statements by others that Dabney
repeated in his motion because those statements constitute inadmissible hearsay, and that
regardless of the statements being inadmissible hearsay, the three individuals Dabney
mentions are not comparators (Id. at 3-4). Last, the IDNR asserts that Dabney cannot
produce evidence tending to show the IDNR’s given reasons for its decision not to
promote Dabney was a pretext for unlawful discrimination (Id. at 4).
LEGAL STANDARD
The court shall grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED.
R. CIV. P. 56(a)). Once the moving party has set forth the basis for summary judgment,
the burden then shifts to the nonmoving party who must go beyond mere allegations and
offer specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P.
56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 232-24 (1986). Stated another way, the
nonmoving party must offer more than “[c]onclusory allegations, unsupported by
specific facts,” to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767,
773 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
In determining whether a genuine issue of fact exists, the Court must view the
evidence and draw all reasonable inferences in favor of the party opposing the motion.
Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). However, no issue remains for trial “unless there is
sufficient evidence favoring the non-moving party for a jury to return a verdict for that
party. See Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640-41 (7th Cir. 2008). The nonmovant
cannot simply rely on its pleadings; the nonmovant must present admissible evidence
that sufficiently shows the existence of each element of its case on which it will bear the
burden of proof at trial. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995)
(citing Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995); Greater Rockford Energy
and Technology Corp. v. Shell Oil Co., 998 F.2d 391, 394 (7th Cir. 1993)). “If a party fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may
consider the fact undisputed for purposes of the motion.” FED. R. CIV. P. 56(e). So, when
the evidence is merely colorable, or is not sufficiently probative, summary judgment may
be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
In sum, if a claim or defense is factually unsupported, it should be disposed of on
summary judgment. Celotex, 477 U.S. at 323-24.
DISCUSSION
There are three preliminary matters the Court must address outright. First, the
Court notes that Dabney’s motion for summary judgment asked “the Court for relief to
subpoena or get affidavits” from the IDNR employees he alleged in his summary
judgment motion that were treated more favorably (Doc. 41, p. 1). Given Dabney is a pro
se litigant, the Court construes his filings liberally. And here, it appears Dabney is
requesting that the Court assist him in obtaining admissible statements from persons he
alleges the IDNR treated better than him. However, Dabney’s perceived Rule 56(d)
request, if granted, would require the Court to re-open and extend discovery after it
closed nearly ten months ago on November 6, 2018 (Doc. 19). Moreover, in requesting
such assistance, Dabney did not show by affidavit or declaration what specific reasons
exist to justify re-opening and extending discovery after it has closed. See Smith v. OSF
Healthcare System, 933 F.3d 859, 864-65 (7th Cir. 2019). Notably, during his deposition in
October 2018 when asked what support he had for statements of other individuals that
he repeated on the record, Dabney stated that he “could get a statement” from individuals
to support his contentions (Doc. 36-1, at 77). But in his summary judgment motion,
Dabney did not indicate any independent efforts he made to obtain any admissible
statements and did not include any admissible affidavits or declarations. Additionally,
for the reasons addressed more fully below, Dabney’s claim clearly is without merit. For
these reasons, the Court denies Dabney’s request to the extent it is a Rule 56(d) motion.
Id.
Second, Dabney did not present sufficient evidence to show the existence of each
element of his case, nor did he cite to the materials of record to dispute the IDNR’s
assertions of material facts that directly dismantle his prima facie case. Rule 56(e) provides
that when a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may:
(1)give an opportunity to properly support or address the fact; (2) consider
the fact undisputed for purposes of the motion; (3) grant summary
judgment if the motion and supporting materials-including the facts
considered undisputed-show that the movant is entitled to it; or (4) issue
any other appropriate order.
FED. R. CIV. P. 56(e). Here, Dabney’s motion for summary judgment merely restated facts
and legal conclusions alleged in his amended complaint as well as added more facts not
previously before the Court. Dabney did not support any of these allegations or legal
conclusions with admissible evidence, nor did he properly cite to particular parts of the
record that could support a determination that a genuine dispute of material facts exists
for trial. Instead, Dabney’s motion ignored the material facts set forth in the IDNR’s
summary judgment motion that concretely prevent Dabney’s ability to show a prima facie
discrimination claim.
The Court also notes that when the IDNR filed its motion for summary judgment,
it also filed a “Federal Rule of Civil Procedure 56 Notice” (Doc. 37), which clearly
informed Dabney that unless he “contradicts the movant with counter-affidavits and/or
other documentary evidence,” the Court would take the movant’s properly asserted facts
as true (Id. at p. 3). Thus, the Court will consider the facts and statements properly made
by the IDNR in its motion for summary judgment as undisputed for purposes of the
motions pursuant to Rule 56(e)(2).
Third, Dabney’s motion for summary judgment included another form complaint
with new allegations of retaliation (Doc. 41). Unfortunately, however, Dabney did not
include the claim in his amended complaint, he did not seek leave from the Court to file
a second amended complaint, and he did not file the retaliation charges with the EEOC.
Tyson v. Gannett Co., Inc., 538 F.3d 781, 783 (7th Cir. 2008); Rush v. McDonald’s Corp., 966
F.2d 1104, 1110 (7th Cir. 1992). Simply put, Dabney’s retaliation claim is not properly
before the Court, and it will not be considered as a claim or as evidence to support his
motion for summary judgment.
Turning to Dabney’s discrimination claim, it is based solely on his allegation that
because of his race he was not selected to fill the Site Superintendent II position for which
he wanted to apply. The IDNR argues that it is entitled to judgment as a matter of law
because Dabney has failed to, and cannot, carry his burden of making a prima facie case
on his race-based failure to promote claim. Specifically, the IDNR asserts that Dabney
cannot produce evidence showing that a reasonable trier of fact could conclude that the
IDNR took a material adverse action against him on account of his race. Additionally, the
IDNR argues that Dabney’s failure to promote claim fails because the record shows that
he was not qualified, that CMS was the agency that determined he was not qualified, not
the IDNR, and that no employee was selected to fill the vacant Site Superintendent II
position.
Under Title VII, employers are prohibited from discriminating based on “race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In order to survive
summary judgment and proceed to trial on a failure to promote claim, “a plaintiff either
must produce ‘sufficient direct or circumstantial evidence that [the employer’s]
promotion decisions were intentionally discriminatory or make an indirect case of
discrimination’ under the burden-shifting method of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Riley v. Elkhart Comty. Sch., 829
F.3d 886, 892 (7th Cir. 2016) (citing Adams v. City of Indianapolis, 742 F.3d 720, 735 (7th Cir.
2014)). Because Dabney did not present any direct evidence of discrimination,1 the Court
1 “Direct evidence is evidence which, if believed by the trier of fact, will prove the particular fact in question
without reliance upon inference or presumption.” Riley-Jackson, 776 F.Supp.2d at 821-22 quoting Rudin v.
will examine his claim under the McDonnell Douglas burden-shifting model. See Riley-
Jackson v. Casino Queen, Inc., 776 F.Supp.2d 815, 823 (S.D. Ill. Feb. 27, 2011).
Under the burden-shifting model, Dabney must first produce evidence of a prima
facie case for failure to promote under Title VII that shows: (1) he was a member of a
protected class; (2) he was qualified for the position sought; (3) he was rejected for the
position; and (4) IDNR promoted someone outside the protected group who was not
better qualified than him. Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 891-92 (7th Cir. 2016);
Jaburek v. Foxx, 813 F.3d 626, 631 (7th Cir. 2016); Garofalo v. Village of Hazel Crest, 754 F.3d
428, 439 (7th Cir. 2014). If Dabney can make the prima facie case, the burden shifts to the
employer to produce a legitimate, non-discriminatory business reason for not selecting
Dabney for promotion. See, Hoffman-Dombrowski v. Arlington Intern. Racecourse, Inc., 254
F.3d 644, 650 (7th Cir. 2001). If the IDNR produced a satisfactory explanation, the burden
would shift back to Dabney to show that the IDNR’s explanation is pretextual. See id.
Here, Dabney cannot establish a prima facie case and the burden will not shift to
the IDNR to produce a legitimate, non-discriminatory reason for not promoting Dabney.
Lincoln Land Cmty. College, 420 F.3d 712, 720 (7th Cir. 2005) (additional citation omitted). “This evidence
usually requires an admission from the decisionmaker about his discriminatory animus, which is rare
indeed, but a plaintiff can also establish an inference of discrimination under the direct method by relying
on circumstantial evidence such as:
(1) suspicious timing, ambiguous oral or written statements, or behavior toward or
comments directed at other employees in the protected group; (2) evidence, whether or not
rigorously statistical, that similarly situated employees outside the protected class received
systematically better treatment; and (3) evidence that the employee was qualified for the
job in question but was passed over in favor of a person outside the protected class and
the employer’s reason is a pretext for discrimination.”
Id., 776 F.Supp.2d at 822 quoting Nagle v. Village of Calumet Park, 554 F.3d 1106, 1114 (7th Cur, 2009)
(additional citations omitted). This type of circumstantial evidence of intentional discrimination must be
“sufficiently connected to the employment action, i.e., made by the decisionmaker, or those who influence
the decisionmaker, and made close in time to the adverse employment decision.” Id., quoting Dandy v.
United Parcel Service, Inc., 388 F.3d 263, 272 (7th Cir. 2004) (additional citations omitted).
Although it is undisputed that Dabney, a black man, belongs to a protected class, he has
failed to produce evidence on the three remaining elements.
Here, Dabney concedes that the only agency that calculates an applicant’s grade
for hiring and promotional purposes is CMS and not the IDNR (Doc. 36-1, p. 41). Yet,
Dabney claims that the IDNR discriminated against him and did not promote him
because of his race even though he received a grade of “ineligible” from the CMS for the
Site Superintendent II position. Dabney steadfastly alleges that the CMS and IDNR hire
people all the time who are not qualified. Yet, he does not provide any admissible
evidence to support that fact, nor does he provide admissible evidence that he possessed
the required promotional grade, training, and experience for the Site Superintendent II
position. Riley, 829 F.3d at 829. Dabney also admitted he did not know what grades other
employees received who he claims were unqualified (Doc. 36-1, pp. 72; 88).
Moreover, Dabney says he submitted his application for the Site Superintendent
II position to CMS but was told he did not have enough experience or education (Doc. 36-
1, p. 66). Dabney appealed his ineligible grade to CMS (Id. at 67-70), and CMS responded
with an explanation of its grade calculation (Id. at 113). CMS explained that the Site
Superintendent II position required knowledge and skills equivalent to a bachelor’s
degree, plus three years of supervisory experience (Id.). CMS calculated that his training
and experience was equivalent to a four-year degree, but that his experience was not
equivalent to possessing at least three years of supervisory experience (Id.). Because three
years of supervisory experience was required to satisfy the minimum requirements to be
considered eligible for the position, Dabney did not meet the minimum requirements
(Id.). CMS therefore refused to change his ineligible grade (Id.).
In order to show a prima facie case, Dabney needed to establish with sufficient
evidence that he was qualified for the Site Superintendent II position. But Dabney failed
to present sufficient evidence that he was qualified and instead only offered unsupported
statements that the IDNR hires people without eligible grades. Again, Dabney never
produced any evidence supportive of these alleged facts. At most, Dabney’s facts
constitute speculation, which may not be used to manufacture a genuine issue of fact. See
Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008); Amadio v. Ford Motor Co., 238 F.3d
919, 927 (7th Cir. 2001); Rand v. CF Industries, Inc., 42 F.3d 1139, 1146 (7th Cir. 1994).
Because CMS determined Dabney was ineligible for the position he sought, and
Dabney did not present any admissible evidence sufficient to support his contention that
he was qualified for the Site Superintendent II position, Dabney failed to establish a
necessary element of his prima facie claim for failure to promote based on race
discrimination. Because summary judgment for the employer is appropriate if the
employee fails to establish even one of the elements of a prima facie case for failure to
promote, Riley, 829 F.3d at 892, the Court need not address each remaining element.
Nevertheless, the Court notes that it is clear from the record that CMS is responsible for
the grading process of applicants—not the IDNR. In other words, Dabney would not be
able to prove that the IDNR that took an adverse action resulting in his rejection for the
promotional position for which he did not qualify. Thus, Dabney’s prima facie case would
also fail on this element.
In sum, Dabney failed to produce admissible evidence in support of his allegations
and instead relied solely upon speculation and conclusory statements. This is insufficient
to establish a prima facie case of race discrimination under Title VIL, and his motion for
summary judgment must be denied. Moreover, the IDNR produced evidence that CMS
assessed Dabney’s grade for the vacant Site Superintendent II position and issued the
decision that he was ineligible for the position. While Dabney’s training and experience
was sufficient to equate to the four-year degree requirement, Dabney lacked the three
years of supervisory experience required to qualify for the position. Because
Dabney did not genuinely dispute this evidence demonstrating he was not qualified
for the position, summary judgment is warranted in favor of the IDNR.
CONCLUSION
For these reasons, the Court GRANTS the Motion for Summary Judgment filed
by Defendant IDNR (Doc. 35) and DENIES the Motion for Summary Judgment filed by
Plaintiff James Dabney, Sr. (Doc. 41). This action is DISMISSED with prejudice, and the
Clerk of Court is DIRECTED to close the case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: September 30, 2019 Teng G2
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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