Bernard Mlynczak, Thomas J. Balamut, Jurgis Paliulionis, and John D. Kasprowicz v. Samuel W. Bodman, Secretary, U.S. Department of Energy

442 F.3d 1050, 2006 U.S. App. LEXIS 8067, 97 Fair Empl. Prac. Cas. (BNA) 1377, 2006 WL 851644
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 4, 2006
Docket04-3238, 04-3369
StatusPublished
Cited by91 cases

This text of 442 F.3d 1050 (Bernard Mlynczak, Thomas J. Balamut, Jurgis Paliulionis, and John D. Kasprowicz v. Samuel W. Bodman, Secretary, U.S. Department of Energy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernard Mlynczak, Thomas J. Balamut, Jurgis Paliulionis, and John D. Kasprowicz v. Samuel W. Bodman, Secretary, U.S. Department of Energy, 442 F.3d 1050, 2006 U.S. App. LEXIS 8067, 97 Fair Empl. Prac. Cas. (BNA) 1377, 2006 WL 851644 (7th Cir. 2006).

Opinion

WOOD, Circuit Judge.

Argonne National Laboratory, as its website proclaims, “is one of the U.S. Department of Energy’s largest research centers.” See http://www.anl.gov/about.html. Descended from the World War II Manhattan Project, it now engages in “upwards of 200 research projects, ranging from studies of the atomic nucleus to global climate change research.” Id. Although Argonne is operated by the University of Chicago for the Department of Energy’s Office of Science, the Department’s Chicago Operations Office maintains general oversight over the facility. This case concerns four Department of Energy (DOE) employees who worked at that office, three of whom were in the Argonne Group, and one of whom was a physical scientist and program manager. All four contend that DOE discriminated against them on the basis of their race (white) and gender (male), and retaliated against them when they complained. Three also accused DOE of age discrimination, but they have dropped that theory on appeal. The district court granted summary judgment in favor of DOE. Because the court correctly ruled that the plaintiffs did not raise genuine issues of fact for either them discrimination claims, for which Title VII, 42 U.S.C. § 2000e, provided the exclusive remedy, or the “adverse action” part of their retaliation claims, we affirm.

I

All four plaintiffs were essentially middle managers at DOE’s Chicago Operations Office, employed at the GS-13 level. Plaintiff Bernard Mlynczak was a physical scientist responsible for overseeing the construction of the Advanced Photon Source facility at Argonne. Plaintiff Thomas Balamut worked as a general engineer, managing engineering construction at the Argonne facility. Plaintiff Jurgis Paliulionis was also a general engineer; he was charged with assuring that Argonne followed pertinent DOE policies and regulations in the course of its projects. Finally, plaintiff John Kasprowicz was a program manager and physical scientist; his job involved overseeing technical tests, writing scope-of-work descriptions, and closing out contracts.

A. Alleged Discriminatory Actions

The focal point of each plaintiffs discrimination complaint was DOE’s decision to fill three GS-14 positions within the Argonne Group with women — specifically, Eva Pavia (Hispanic), Roxanne Purucker (white), and Susan Heston (white). Aníbal Taboas, a male Hispanic, headed the Argonne Group from 1987 to 1995, and it was he who allegedly selected the three women as a result of intentional discrimination against white males. We turn, therefore, to the circumstances of these three decisions, taking the facts in the light most favorable to the plaintiffs.

1. Affirmative Action Policies

Underlying the plaintiffs’ complaints about all three specific hiring decisions is a general argument about DOE’s affirmative action policy. Briefly put, they claim that this policy permits unlawful reverse discrimination. As plaintiffs’ brief puts it, the DOE Affirmative Action and Diversity Plans and Accomplishment Reports reflected a “sub-culture” of reverse discrimination that was statistically driven. The summary judgment record reflects that in the late 1980s, in compliance with a di *1054 rective from the Equal Employment Opportunity Commission that required all federal agencies to adopt an affirmative action plan, the Chicago DOE office prepared such a plan. The plan set forth the office’s goals for providing employment opportunities for women and minorities. About ten years later, the office created a more comprehensive document entitled “Workforce 21,” which had goals similar to those in the affirmative action policy.

The focus of the affirmative action plans was on ensuring diversity in the applicant pool for positions at the agency. Thus, while they stress active recruitment of women and minority candidates, they do not contain quotas, nor do they authorize management to give preference to less-qualified female or minority applicants for jobs or promotions. Instead, the Chicago DOE office is bound by the rules in the DOE Merit Promotion Policy, under which selecting officials may not make a hiring or promotion decision based on race, color, sex, national origin, age, or disability. Race or sex may be considered only in the unlikely event that two candidates are so equally qualified that there is no other meaningful distinction between them. That said, the success of managers at the Chicago office in achieving Equal Employment Office (EEO) goals and objectives was one of twelve factors taken into account in their performance evaluations. “Success” was not limited to hiring or promotion decisions; it included a wide variety of career development measures, including recruiting at minority colleges, developing day-care facilities, or attending a career fair directed toward women.

Taboas’s scores on this element for the years 1989 to 1993 ranged from “meeting” those objectives to “far exceeding” them. His evaluations reveal that, during that time period, 26 of the 29 promotions and 22 of 31 new hires were awarded to women or minorities. The record does not reveal, however, any detail about what those positions were, who applied, or the qualifications of the applicants. Plaintiffs point out that Taboas admitted that he takes an individual’s race, sex, or minority status into consideration, and if he does not see adequate diversity in a job category, he will “look hard” for diversity in the list of qualified applicants. It is against the background of this policy that the three contested employment decisions took place.

2. Pavia Hiring

In 1994, a GS-14 Environmental Seien-tist/Engineer position opened up within the Argonne Group. In preparation for filling the position, supervisor Richard Baker prepared a position description and forwarded it to Elizabeth Lyon, a personnel specialist in the office’s human resources department. The HR department had a choice of filling the position through a noncompetitive process, under which it would look only to current federal employees, or a competitive process, under which it would open the job to all United States citizens. Taboas decided to use the latter process, because he wanted to bring in someone from the outside. Lyon opted for a variant of the competitive process in which DOE could obtain authority from the federal Office of Personnel Management (OPM) to perform the recruitment itself. Although the noncompetitive process was generally used in Chicago, it was not unusual to use the competitive process.

Normally, once the Chicago office receives OPM’s authorization, it advertises the vacancy externally and posts it on an internal DOE bulletin board. Vacancy announcements ordinarily remain open for 21 days. In fact, the particular Environmental ScientisVEngineer position at issue had come open some months earlier and had been offered to a white male in another *1055 DOE office, but he had declined the offer. As a result, DOE had to begin all over again. Once Lyon began working on it, she accelerated the process, leaving the announcement open for only nine days.

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442 F.3d 1050, 2006 U.S. App. LEXIS 8067, 97 Fair Empl. Prac. Cas. (BNA) 1377, 2006 WL 851644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-mlynczak-thomas-j-balamut-jurgis-paliulionis-and-john-d-ca7-2006.