Cichon, Michael C. v. Exelon Generation Co ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3724
MICHAEL C. CICHON,
Plaintiff-Appellant,
v.
EXELON GENERATION COMPANY, L.L.C.,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 CV 3441—Charles P. Kocoras, Chief Judge.
____________
ARGUED APRIL 14, 2004—DECIDED MARCH 21, 2005
____________
Before BAUER, COFFEY and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Michael Cichon was employed as
a “Unit Supervisor” for Exelon Generation Company at its
Byron, Illinois, nuclear power plant, until he was removed
from the position because Exelon believed that he lacked
the necessary leadership qualities. A few weeks later,
Cichon applied for a different position with Exelon at their
Byron plant, as a “Turbine Project Manager,” but was not
hired because of his lack of leadership skills. Thereafter,
Cichon filed suit against Exelon under § 215(a)(3) of the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq.,
alleging that Exelon had removed him from his Unit
2 No. 03-3724
Supervisor position and refused to hire him for the Turbine
Project Manager position in retaliation for his having filed
a prior lawsuit against Exelon under the FLSA.1 The dis-
trict court granted summary judgment to Exelon, finding
Exelon had offered legitimate, non-retaliatory reasons for
its decision to remove him as a Unit Supervisor and de-
clining to hire him as a Turbine Project Manager and went
on to conclude that Cichon had failed to demonstrate that
these reasons were pretextual. Cichon appeals, we affirm.
I. BACKGROUND
Cichon was employed at Exelon’s Byron plant for fifteen
years in various non-managerial positions until he trans-
ferred to a position as a Unit Supervisor in the plant’s
Operations Department (“OD”) in 1998. As a Unit
Supervisor, Cichon served as a mid-level manager and also
assisted in the hands-on operation of the plant’s two nu-
clear reactors. In January of 2000, management became
concerned with Cichon’s leadership and supervisory skills,
and his repeated failure to follow plant procedures. On June
26, 2001 Cichon gave his supervisors further cause to
question his leadership abilities and adherence to plant pro-
cedures when he performed poorly during a reactor shut-
down. On that date, due to a mechanical malfunction, one
of the reactors had to be shut down. Once a reactor is shut
down, the “feedwater” pump2 that supplies feedwater to the
core of the nuclear reactor temporarily discontinues func-
1
Section 215(a)(3) of the FLSA states, in relevant part, that “it
shall be unlawful for any person . . . to discharge or in any other
manner discriminate against any employee because such em-
ployee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to [the FLSA].”
2
The feedwater pump supplies feedwater to the reactor core of a
nuclear reactor, which the reactor then heats into steam to turn
the turbine-generator, producing electricity.
No. 03-3724 3
tioning, requiring the use of an “auxiliary feedwater pump”
to keep the feedwater flowing into the reactor core in order
that the steam generator can continue to remove heat from
the reactor core. When the reactor is brought back on line,
the auxiliary feedwater pump is manually shut down once
the main operating pump is functioning normally. Cichon’s
role in the process of bringing the reactor back on line was
to order the auxiliary feedwater pump shut down when the
main feedwater pump was operational. Cichon ordered the
premature shutdown of an auxiliary pump before the main
pump was ready to take over, a procedural gaffe that
caused the auxiliary pump to restart unexpectedly. The
error was serious enough that Exelon was forced to conduct
an internal investigation into Cichon’s premature restart of
the auxiliary feedwater pump and file a report with the
Nuclear Regulatory Commission. Cichon’s poor performance
in this critical and potentially hazardous situation resulted
in his being formally reprimanded for failing to follow
procedural guidelines and his being warned, in writing, that
he needed to improve his performance, comply fully with
Exelon’s procedures and exhibit improved leadership on the
job or he would be subject to further discipline, up to and
including termination.
Because of Cichon’s serious error and other problems at
the plant caused by OD personnel failing to comply with
plant procedures, the plant’s upper management moved in
to rectify the situation and directed a “re-alignment” of the
OD through a “Leadership Assessment Process” (“LAP”).
The LAP required all supervisory-level employees in the
department to successfully complete a series of individual
interviews in order to retain their positions.
On September 10, 2001, as part of the LAP Cichon was
interviewed by an internal panel comprised of upper-level
supervisors in the OD along with representatives from the
Byron nuclear plant’s human resources department. During
the interview Cichon and other managers were asked a
4 No. 03-3724
series of questions designed to ascertain whether they
possessed the necessary leadership and behavioral skills
that Exelon expected of its management-level employees.
The questions were framed in a manner designed to gauge
“competencies”3 in eleven different categories of “fundamen-
tals.”4 In order for Cichon to retain his position as Unit
Supervisor, he was required to demonstrate to the inter-
viewing panel that he was at least “competent” as opposed
to “developmental” or only developmentally qualified. Upon
completion of the interviewing process, the LAP panel tallied
up the scores and determined that Cichon demonstrated the
required competency in only three of the eleven categories.
Accordingly, the panel concluded that although Cichon
might be an “acceptable candidate [for the] short term
[because he] has the technical ability to perform the job[, in
3
In accordance with the parameters given to the LAP panel,
“competency” level was rated as either a “strength,” a “mere com-
petence,” or as a “developmental need.” Concerning employees who
scored in the “developmental need” range of the evaluation cri-
teria, Diana Sorfleet, Manager of Employee Relations at Exelon
testified that “[w]e looked at which [fundamentals] were difficult
to develop, and based on the improvements that we needed, we
made decisions to say that if an employee has, you know, two or
three of these [fundamentals] that all need development, we don’t
have the time or the money to invest in developing those [fun-
damentals] when we’re in a turn-around situation.” Therefore, the
ranking of an employee’s performance in a given area as a
“developmental need” was the equivalent of a deficient or un-
satisfactory mark in that given area.
4
The eleven categories of “fundamentals” required of Unit
Supervisors were: 1) “Drives for Results”; 2) “Actively
Communicates”; 3) “Models our Values”; 4) “Builds Relationships”;
5) “Provides Direction”; 6) “Develops Others”; 7) “Fosters Team-
work and Collaboration”; 8) “Motivates and Inspires Passion”; 9)
“Selects Talent”; 10) “Leverages Resources”; and 11) “Motivational
Fit.”
No. 03-3724 5
the] long-term [he] does not possess the leadership abilities
that provide a good motivational fit for the position.” On
October 1, 2001, after all the supervisory-level employees in
the OD had been interviewed, the LAP panel met and
rendered its final decisions as to those who qualified to staff
the Unit Supervisor position. The committee determined
that because Cichon had failed to meet the minimum
competency requirements to qualify for a supervisory
position he should be removed from his Unit Supervisor
position.
Prior to the committee’s determination, on September 25,
2001, Cichon had filed a lawsuit against Exelon under the
FLSA, challenging the recent changes Exelon had instituted
in its overtime pay scale for its management-level employ-
ees.5 On October 23, 2001, Cichon was officially removed as
a Unit Supervisor. At that time, Cichon was advised that
his removal was precipitated by several factors; his poor
performance in his LAP interviews, his failure to follow the
company’s reactor start-up procedures in June of 2001 and
his subsequent failure to “demonstrate[] [a] behavior
change toward embracing and institutionalizing standards
and fundamentals.”
After his removal as a Unit Supervisor, Cichon had, in
accordance with Exelon’s policy, sixty days to find another
position within the company before he was subject to final
termination.6 During this time period, Cichon applied for
the “Turbine Project Manager” position after Mike Kelly,
the individual in charge of the turbine projects at Exelon’s
Illinois plants, informed him that the position was open and
5
Upper management at the Byron plant were not notified about
Cichon’s lawsuit until October 2, 2001.
6
Cichon continued to receive his previous salary and benefits
during this 60-day time frame.
6 No. 03-3724
even went further and informed Cichon that, in his opinion,
he felt that he might be a “good fit” for the position.
Cichon, because of his technical qualifications, was chosen
as one of the four finalists for the position. However, Exelon’s
management team sought to staff the position based on
more than technical skills alone and was looking for can-
didates with superior leadership, behavioral and manage-
ment skills. As part of the selection process, the candidates
had to score well in two interviews before two separate
panels of interviewers. The panelists were assigned to ask
each of the interviewees a series of questions and, based
on the applicants’ responses, determine which one of the
candidates possessed the superior leadership and behav-
ioral skills required for the job. Cichon, along with three
other employees participated in the interviews, and placed
second out of the four candidates interviewed. Tim Nolan
received the top score and was accordingly awarded the
position, rather than Cichon or the other candidates who
had scored lower.
Kelly, who had advised Cichon of the Turbine Project
Manager opening, was one of the panelists who interviewed
Cichon and the other candidates for the position. The record
demonstrates that, along with his interviewing partner,
Kelly scored Cichon lower than did the other team while
rating him on identical criteria. Kelly stated in deposition
testimony that although he learned of Cichon’s having filed
a FLSA lawsuit during the interview with Cichon, that
knowledge did not affect how Cichon was rated, nor did it
affect the interviewing teams’ collective final decision to
hire Nolan. Kelly further stated that Nolan was hired for
the position rather than Cichon solely because Nolan
achieved higher scores overall during the interview and rat-
ing process. Following Cichon’s failure to obtain the Turbine
Project Manager position, he applied for other positions with
Exelon, and, on December 12, 2001, accepted a position as
a dispatcher at a Joliet facility operated by a subsidiary of
Exelon’s parent company.
No. 03-3724 7
On May 13, 2002, Cichon filed his second suit against
Exelon under the FLSA, alleging that Exelon’s decisions to
remove him from his Unit Supervisor position and not hire
him for the Turbine Project Manager position were made in
retaliation for his filing of the initial FLSA overtime
pay lawsuit.7 After discovery, Exelon moved for summary
judgment and also filed a document entitled “Statement of
Uncontested Material Facts,” as required pursuant to the
United States District Court for the Northern District of
Illinois’ Local Rule 56.1. Cichon responded by filing a brief
in opposition to Exelon’s motion for summary judgment, and
included with this filing a response to their “Statement of
Uncontested Material Facts.” In this document, Cichon
addressed Exelon’s proposed facts line-by-line and admitted
some of the facts, but denied the accuracy of a large number
of Exelon’s statements of facts. Our review of Cichon’s re-
sponse establishes that a great many of Cichon’s written
attempts in opposition to Exelon’s statement of material
facts amount to nothing more than conclusory statements,
unaccompanied by required record citations while others
contain only cursory analysis with citations to portions of
the record that failed to support his denials, constituting a
violation of Local Rule 56.1. In his response, Cichon also set
forth a number of his own proposed facts, which he con-
tended required a denial of Exelon’s motion for summary
judgment. However, Cichon failed to list these “additional
facts that require the denial of summary judgment” in a
separate statement of facts document as required under
Local Rule 56.1. Consequently, when the district court ad-
dressed Exelon’s motion for summary judgment, the judge
properly refused to accept a majority of Cichon’s proposed
facts in light of the fact that he had failed to comply with
Local Rule 56.1 when he: “(1) [made] new factual assertions
7
Cichon’s overtime pay lawsuit was dismissed with prejudice, on
the plaintiff ’s own motion, on September 12, 2002.
8 No. 03-3724
in [his] response without filing a Statement of Additional
Facts in violation of Local Rule 56.1(b)(3)(B); (2) improperly
den[ied] the accuracy of a large number of Exelon’s facts as
asserted with evasive responses in violation of Local Rule
56.1(b)(3)(A); and (3) support[ed] [his] responses with self-
serving affidavits or unauthenticated documents.”
Relying primarily on Exelon’s properly submitted facts,
the court granted summary judgment to Exelon. In con-
junction with this conclusion the court assumed, for the
purposes of its analysis, that Cichon had established a
prima facie case of retaliation. However, the court went on
to find that Exelon had ultimately carried its burden by
offering legitimate, non-discriminatory reasons for both re-
moving Cichon from his Unit Supervisor position and failing
to subsequently hire him for the Turbine Project Manager
opening. In doing so Exelon argued that Cichon was removed
from the Unit Supervisor position because of his failure to
demonstrate proper supervisory and leadership skills, both
in his day-to-day job performance and in his responses to
questions posed to him during the interviews conducted by
the LAP; and furthermore that Nolan was hired rather than
Cichon for the Turbine Project Manager position because
Nolan was rated as the “more qualified” candidate in the
evaluation proceedings conducted by the interviewing panels.
The court went on to hold Cichon had failed to demonstrate
that Exelon’s proffered legitimate business reasons for
terminating Cichon and subsequently failing to hire him for
another position at the Byron Plant were pretextual, and
entered judgment for Exelon. Cichon appeals.
II. ISSUES
Cichon contends that the district court abused its dis-
cretion when it determined that he failed to comply with
Local Rule 56.1 and discounted a great majority of the facts
he set forth in response to Exelon’s motion for summary
No. 03-3724 9
judgment. Cichon also argues that the district court’s grant-
ing of summary judgment for the defendant was improper
because he had demonstrated that the reasons Exelon
offered for removing him from his Unit Supervisor position
and then failing to hire him for the Turbine Project Manager
position were pretextual.
III. ANALYSIS
A. Cichon’s Failure to Comply with Local Rule 56.1
Cichon claims that the district court abused its discretion
when it determined that he failed to comply with the
provisions of Local Rule 56.1 by not including a separate
statement of additional facts and discounted, or refused to
consider, most of the facts that he submitted in response to
Exelon’s motion for summary judgment. Cichon posits that
if the court had accepted his set of proposed “facts,” it would
have concluded that summary judgment in favor of Exelon
was not proper.8 We review a district court’s decision
concerning whether a litigant complied with a local rule,
such as Local Rule 56.1, for an abuse of discretion. Ammons
v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.
2004). Specifically as to Local Rule 56.1, “[w]e have . . .
repeatedly held that a district court is entitled to expect
8
The two “facts” that Cichon contends precluded summary
judgment are his allegations that: 1) he was “the only [Unit
Supervisor] discharged as a result of the [LAP]”; and 2) “both
selecting officials [for the Turbine Project Manager position]
admitted that [he] was the best qualified candidate for the job.”
Appellant’s Br. at 20. For the sake of completeness, we have
examined the record thoroughly and can find no support for these
allegations aside from Cichon’s own self-serving and unauthenti-
cated statements, which are insufficient to create a genuine issue
of material fact. See Rogers v. City of Chicago, 320 F.3d 748, 751
(7th Cir. 2003).
10 No. 03-3724
strict compliance with [Local] Rule 56.1.” Id. (citing
Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524,
527 (7th Cir. 2000) and Waldridge v. American Hoechst
Corp., 24 F.3d 918, 922 (7th Cir. 1994)). Local Rule 56.1
requires specifically that a litigant seeking to oppose a
motion for summary judgment file a response that contains
a separate “statement . . . of any additional facts that require
the denial of summary judgment.” Local Rule 56.1(b)(3)(B);
see also Ammons, 368 F.3d at 817; Smith v. Lamz, 321 F.3d
680, 682 n.2 (7th Cir. 2003); Midwest Imports, Ltd. v. Coval,
71 F.3d 1311, 1312 (7th Cir. 1995). A district court does not
abuse its discretion when, in imposing a penalty for a
litigant’s non-compliance with Local Rule 56.1, the court
chooses to ignore and not consider the additional facts that
a litigant has proposed. Midwest Imports, 71 F.3d at 1316.
Indeed, as we have stated on a number of occasions, “[a] local
rule of a federal district court is written by and for district
judges to deal with the special problems of their court, and
we are disposed therefore to give a district judge’s interpreta-
tion of his court’s local rules . . . considerable weight.” Id.Cichon failed to file a statement of additional facts in op-
posing Exelon’s motion for summary judgment, and admits
in his brief that he only identified his proposed facts “in
[his] response to [Exelon’s] statement of facts” rather than
filing a separate statement of proposed facts. In defense of
his failure to submit his own statement of additional facts,
Cichon mistakenly takes the position that “[t]here was no
need to make such a submission,” because the Northern
District of Illinois’ Local Rule 56.1 does not require him to
do so. However, as we have noted above, Local Rule 56.1 does
require that he make such a submission, that is, as long as
he wants the court to consider his proposed “facts” when
determining whether a dispute over facts material to the
case exists that requires a denial of summary judgment.
Because Cichon failed to comply with Rule 56.1 which re-
quires that a litigant file a separate statement of additional
No. 03-3724 11
facts, we hold that it was not an abuse of discretion for the
district court to ignore most of Cichon’s proposed “facts”
when ruling on Exelon’s motion for summary judgment. Id.Accordingly, for the purposes of this appeal we will consider
only those facts that the trial judge found not to be excluded
under Rule 56.1 when addressing the remainder of Cichon’s
claims. Id. at 1312.
B. Cichon’s Retaliation Claims
Cichon next argues that it was improper for the trial
judge to grant summary judgment in Exelon’s favor because
he successfully demonstrated that the reasons Exelon offered
for removing him from his Unit Supervisor position and
then refusing to hire him for the Turbine Project Manager
position were pretextual. We review de novo the district
court’s grant of summary judgment to Exelon. Sphere Drake
Ins. Ltd. v. Am. Gen. Life Ins. Co., 376 F.3d 664, 668 (7th
Cir. 2004). To establish a claim under § 215(a)(3) of the
FLSA, Cichon has the burden of demonstrating that Exelon
engaged in retaliatory conduct, either through the direct or
indirect method of proof. See Scott v. Sunrise Healthcare
Corp., 195 F.3d 938, 940 (7th Cir. 1999). Cichon concedes
that he has no direct evidence that Exelon removed him
from the Unit Supervisor position and failed to hire him for
the Turbine Project Manager position simply because he
filed a lawsuit against Exelon under the FLSA. Thus,
Cichon frames his argument according to the indirect
method of proof under the familiar burden-shifting frame-
work prescribed by the Supreme Court in McDonnell
Douglas, as adapted for use in the context of retaliation
claims. Stone v. City of Indianapolis Pub. Utils. Div., 281
F.3d 640, 644 (7th Cir. 2002); see McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).
12 No. 03-3724
1. Removal from the Unit Supervisor Position
Cichon argues that the court improperly granted summary
judgment to Exelon on his allegation that he was retaliated
against when removed from the Unit Supervisor position
and asserts that he produced sufficient evidence of dis-
crimination to demonstrate a disputed issue of fact as to
whether Exelon’s proffered reason for removing him from
the position was pretextual. In order to reach the pretext
stage of the McDonnell Douglas analysis, Cichon was ini-
tially required to present a prima facie case of retaliation by
demonstrating, among other things, that “he was per-
forming his job in a satisfactory manner.” Stone, 281 F.3d
at 644. Although the district court assumed that Cichon met
this requirement, after review of the record we are forced to
disagree and are convinced that Cichon was not performing
his job in a satisfactory manner at the time he was termi-
nated from his position at Exelon, and thus failed to clear
the initial hurdle of making out a prima facie case of
discrimination.
Beginning in January of 2000, Cichon’s supervisors started
to question his leadership and supervisory skills, and be-
came aware that Cichon had often failed to follow required
safety procedures at Exelon’s Byron plant. Indeed, in
June 2001, Cichon’s failure to adhere to plant procedures
caused a very serious problem when he improperly shut
down the reactor’s auxiliary feedwater pump, and caused an
undesirable chain of events that ended in Exelon’s filing of
a report with the Nuclear Regulatory Commission. See
supra pp. 2-3. And, perhaps more damaging to Cichon’s case,
were the results of the interviews that he participated in as
part of Exelon’s department-wide LAP evaluations during
September of 2001, where he performed so poorly that the
interviewing panel rated him as “developmental,” or
No. 03-3724 13
deficient9 in eight of the eleven categories selected by
Exelon to evaluate leadership and behavior skills. As a re-
sult, the interviewing panel determined that Cichon failed
to “possess the leadership abilities that provide a good
motivational fit for the [Unit Supervisor] position.”
Cichon’s error during the restart of the reactor and
Exelon’s poor LAP evaluation of Cichon occurred prior to
the company receiving notice of Cichon’s lawsuit and were
certainly indicative of Cichon’s inability to perform his job
in a satisfactory manner and ipso facto justified Exelon’s
decision to remove him as a Unit Supervisor. Accordingly,
Cichon’s attempt to rely merely on a “suspicious timing”
theory falls far short of creating any logical or reasonable
inference that Exelon’s complaints about his unsatisfactory
job performance were not based in fact, but instead were
trumped-up charges invented by Exelon merely to cloak
their clandestine retaliatory motive for removing him as a
Unit Supervisor. See Lang v. Ill. Dep’t of Children & Family
Servs., 361 F.3d 416, 419-20 (7th Cir. 2004); Sitar v. Ind.
Dep’t of Transp., 344 F.3d 720, 728-29 (7th Cir. 2003); Ajayi
v. Aramark Bus. Servs., Inc., 336 F.3d 520, 533-34 (7th Cir.
2003). In spite of the fact that Exelon did not inform Cichon
of its decision to remove him from the position until after he
filed his FLSA suit, the record clearly establishes that
Exelon had been “contemplating [Cichon’s removal] before
it learned of the suit [and] [e]mployers need not suspend
previously planned [employment actions] upon discovering
that [an FLSA] suit has been filed, and their proceeding
along lines previously contemplated . . . is no evidence
9
As Exelon’s Manager of Employee Relations, Diana Sorfleet
explained: “ ‘needs development,’ and too many ‘developmental’
scores means that the employee is so deficient (in Exelon’s opin-
ion) that he is not worth the time, money and effort it would take
to properly develop these deficiencies to the point where he is
‘competent’ in fundamental areas.” See supra note 3.
14 No. 03-3724
whatever of causality.” Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 272 (2001).
Exelon has every reason to expect that each of its Unit
Supervisors possess and exhibit the necessary leadership
and supervisory skills, and follow the procedures required
to ensure the safe operation of its nuclear power plants. The
record demonstrates that Cichon fell far short of meeting
Exelon’s expectations as evidenced by his failure to follow
the approved reactor start-up and shut-down safety proce-
dures and his poor showing in the LAP interviews, when he
was rated “developmental” or deficient10 in all but three out
of the eleven categories in which his leadership and behav-
ior skills were rated. Cichon does not argue that Exelon’s
expectations were unreasonable or not bona fide. See Robin
v. Espo Eng’g Corp., 200 F.3d 1081, 1090 (7th Cir. 2000).
Since Cichon has failed to demonstrate that “he was
performing his [Unit Supervisor] job in a satisfactory
manner” and meeting his employer’s legitimate business ex-
pectations that its management-level employees possess
and demonstrate the requisite leadership and behavioral
skills, he has failed to establish a prima facie case of re-
taliation in regards to his removal from this position. Stone,
281 F.3d at 644.
Even assuming arguendo that Cichon had established a
prima facie case of retaliation, his claim would still ulti-
mately fail due to the fact that he has failed to present any
evidence that would establish that Exelon’s proffered
reasons for removing him were pretextual. In error Cichon
asserts that he was the only Unit Supervisor removed as a
result of the LAP; a contention which is devoid of any sup-
port in the record. To the contrary, at least two other
individuals were removed due to poor performance in the
LAP evaluations. Furthermore, because Cichon failed to
10
See supra notes 3, 9.
No. 03-3724 15
present any evidence that Exelon relied on anything other
than his poor work performance and negative LAP evalua-
tions when it removed him, we need not inquire any further
into the wisdom of its employment decisions. Appelbaum v.
Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 579 (7th
Cir. 2003). We conclude that the district court’s grant of
summary judgment to Exelon on Cichon’s claim of retalia-
tion in his removal from the Unit Supervisor position was
proper.
2. Failure to Hire for the Turbine Project Manager
Position
Cichon argues that summary judgment was improper on
his claim that Exelon retaliated against him when not hir-
ing him for the Turbine Project Manager position, and con-
tends that he produced sufficient evidence to demonstrate
a disputed issue of fact as to whether Exelon’s proffered
reason for not hiring him for the position was pretextual.
We agree with the district court’s determination that Cichon
produced sufficient evidence to make out a prima facie case
on the failure to hire portion of his retaliation claim when he
demonstrated that: 1) he engaged in a statutorily protected
activity by filing an FLSA lawsuit, see Sapperstein v. Hager,
188 F.3d 852, 857 (7th Cir. 1999); 2) he applied and had the
technical qualifications required for the Turbine Project
Manager position; 3) he was not hired for the position; and
4) a similarly situated individual who did not file a com-
plaint under the FLSA was hired for the position (Tim
Nolan). Volovsek v. Wis. Dep’t of Agric., Trade, & Consumer
Prot., 344 F.3d 680, 692 (7th Cir. 2003); Stone, 281 F.3d at
644. Thus, the burden shifted to Exelon to offer a legitimate,
non-retaliatory reason for not hiring Cichon for the Turbine
Project Manager position. Millbrook v. IBP, Inc., 280 F.3d
1169, 1175 (7th Cir. 2002). We hold that Exelon did fulfill
this burden by pointing out and providing evidence that
16 No. 03-3724
Cichon was not hired because the candidate selected, Tim
Nolan, demonstrated that he was more qualified and
possessed better overall leadership and behavioral skills
when he achieved better scores than Cichon during the
interview and rating process. Further, Tim Kelly, one of the
individuals who interviewed both Cichon and Nolan for the
position, stated that Nolan was hired instead of Cichon
simply because of his higher score, and not because Cichon
had filed an FLSA lawsuit against Exelon (Kelly explained
that he had no knowledge of a lawsuit being filed until
Cichon offered the information during the interview). In
order for Cichon’s claim to advance beyond the summary
judgment stage, it was his responsibility to offer the district
court evidence that created “an issue of material fact as to
whether [Exelon’s] proffered reasons [for not hiring him
were] merely pretext for unlawful discrimination or retalia-
tion,” Hudson v. Chicago Transit Auth., 375 F.3d 552, 561
(7th Cir. 2004), which he has failed to do. “To demonstrate
pretext, [Cichon] must demonstrate that [Exelon’s] articu-
lated reason for [not hiring him] either: 1) had no basis in
fact; 2) did not actually motivate its decision; or 3) was
insufficient to motivate its decision.” Grayson v. O’Neill, 308
F.3d 808, 820 (7th Cir. 2002).
Cichon did not directly attack Exelon’s proffered reason
for choosing Nolan as the more qualified candidate, i.e., that
Nolan exhibited superior overall leadership and behavioral
skills during the interviewing process. If Cichon had
advanced such an argument, he would be facing an uphill
battle in attempting to discredit Exelon’s statement that it
hired Nolan because he was better qualified than Cichon as
pretextual, even when considering that Exelon’s evaluation
of the two applicants was based on subjective evaluation
criterion such as the candidates’ “leadership and behavioral
skills.” This is because “where an employer’s proffered non-
discriminatory reason for its employment decision is that it
selected the most qualified candidate, evidence of the
No. 03-3724 17
applicants’ competing qualifications does not constitute
evidence of pretext ‘unless [the plaintiff’s case demonstrates
that those qualifications] are so favorable to the plaintiff
that there can be no dispute among reasonable persons of
impartial judgment that the plaintiff was clearly better
qualified for the position at issue.’ ” Millbrook, 280 F.3d at
1180 (quoting Deines v. Texas Dep’t of Protective & Regula-
tory Servs., 164 F.3d 277, 279 (5th Cir. 1999)) (emphasis
added). Cichon failed to present any evidence that directly
called into question the veracity of Exelon’s reason for
hiring Nolan instead of himself.
Instead, Cichon mounted an indirect attack on the integ-
rity of the interviewing panel and its process that resulted
in Nolan’s selection, by accusing one of his interviewers,
Kelly, of manipulating his evaluation of Cichon in order that
Nolan would be awarded the position. Without a scintilla of
proof, evidence or substantiation of any kind to support his
claim, Cichon alleges that Kelly, who had told Cichon before
the interviewing process began that Cichon might be a
“good fit” for the job, did an about-face after learning of
Cichon’s FLSA lawsuit against Exelon and purposely gave
him (Cichon) a lower score than Nolan to sabotage his
prospects of being selected for the position. Cichon posits
that such an allegation was sufficient to create a disputed
issue of fact as to whether Exelon’s proffered reason for
hiring Nolan was pretextual. We disagree.
First of all, Kelly’s having told Cichon prior to the inter-
viewing process that he was a “good fit” for the job does not
ipso facto create an inference that Kelly’s assessment of
Cichon following the interview was prompted by a retalia-
tory animus instead of Kelly’s forthright evaluation of
Cichon’s leadership and behavioral skills. Kelly’s pre-
interview comment noting that Cichon was well-suited for
the job was based on his knowledge of Cichon’s technical
qualifications, but the interviewing process was designed to
sort through the more technically-qualified candidates to
18 No. 03-3724
find the applicant who possessed the superior leadership as
well as behavioral skills. Cichon’s “mere qualification [for the
position] does not mean that [he] must get the job . . . .
[a]nd in choosing between different candidates, all of whom
are qualified, an employer may legitimately use subjective
qualifications.” Perfetti v. First Nat’l Bank of Chicago, 950
F.2d 449, 458 (7th Cir. 1991). The opinion of one person in
isolation that Cichon would be a “good fit” for the job is not
persuasive evidence that Cichon was the most qualified
person for the position, much less the person that would be
hired. In addition, Kelly’s statement does not controvert
Cichon’s poor performance in the other stages of the inter-
view process. The decision that Nolan was a more attractive
candidate than Cichon came at the end of a collaborative
interview process that included input from a number of in-
terviewers other than Kelly, and as this court has reiterated
time and time again, “[w]e do not sit as a superpersonnel
department that reexamines an entity’s business decision
and reviews the propriety of that decision.” Stewart v.
Henderson, 207 F.3d 374, 378 (7th Cir. 2000) (citation
removed).
Second, Cichon failed to present evidence from which a
rational decisionmaker could logically infer that, based on
the fact that Kelly knew about Cichon’s FLSA lawsuit, Kelly
was motivated by a retaliatory animus when he determined
that Cichon did not possess the necessary leadership and
behavioral skills to merit a higher score than Nolan in the
interviewing process. See Eiland v. Trinity Hosp., 150 F.3d
747, 753 (7th Cir. 1998); Kearney v. Town of Wareham, 316
F.3d 18, 23 (1st Cir. 2002). Cichon gave no logical explana-
tion or reason as to why Kelly, who like Cichon was a man-
agement-level employee at Exelon, would take such umbrage
to Cichon’s having filed an FLSA lawsuit against Exelon—
protesting the company’s decision to cut overtime pay for
management-level employees—that he would take it upon
himself to sabotage Cichon’s chances of being awarded the
No. 03-3724 19
Turbine Project Manager position. Indeed, accepting Cichon’s
speculative theory that Kelly harbored a retaliatory motive
when he interviewed him, and essentially acted as a pawn
in Exelon’s alleged nefarious scheme, see Eiland, 150 F.3d
at 752, would require us to also implicate some or all of the
other three individuals who interviewed him in a conspiracy
designed to thwart Cichon’s prospects of obtaining the
Turbine Project Manager position. “We have typically been
wary of allegations based on nothing [more than a bold
statement in] an attempt to come up with a conspiracy
theory and in particular where there is not a scintilla of evi-
dence in the record before us to support [Cichon’s] theory.”
Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1007
(7th Cir. 2002); see also Perfetti, 950 F.2d at 453. And we
are even more skeptical of Cichon’s conspiratorial retalia-
tion allegations because he himself engineered this scenario
by informing Kelly during the interviewing process that he
had filed an FLSA lawsuit against Exelon—recall that before
interviewing Cichon, Kelly had no knowledge of Cichon’s
lawsuit and only learned about it when Cichon volunteered
the information.
Cichon has provided no evidence other than bald, self-
serving assertions that would allow us to rationally infer
that Kelly was motivated by a retaliatory animus to redirect
the selection process for the Turbine Project Manager
position to exclude Cichon. Indeed, there is no reason to
believe Kelly’s evaluation of Cichon during the interviewing
process was based on anything besides a fair and well-rea-
soned assessment of Cichon’s leadership and behavioral
skills. Kelly flatly denied that his knowledge of Cichon’s law-
suit had any affect on his decisions during the interviewing
process. Thus, the only way in which Cichon could prevail
on his allegation of pretext would be to demonstrate that
Kelly was not being truthful when he made this statement.
Perfetti, 950 F.2d at 456. However, because Cichon has the
ultimate burden of proof to demonstrate that Exelon engaged
20 No. 03-3724
in retaliatory conduct, see David v. Caterpillar, Inc., 324 F.3d
851, 858 (7th Cir. 2003), he cannot create a triable dispute
of fact “ ‘if his only ‘evidence’ [is that Exelon’s] witnesses
[are] not worthy of belief. That would [be] a no-evidence
case, and such a case [Cichon] must lose, because he has the
burden of proof.’ ” Millbrook, 280 F.3d at 1181 (quoting
EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir. 1994)). Put
differently, it is impossible for Cichon to meet his burden of
proof and demonstrate retaliatory conduct “by relying
on the hope that the jury will not trust the credibility of
[Exelon’s] witnesses.” Perfetti, 950 F.2d at 456. Without
some shred of affirmative evidence to call into question
Kelly’s credibility, Cichon must lose. Id.; see also Massey v.
Blue Cross-Blue Shield of Illinois, 226 F.3d 922, 926 (7th
Cir. 2000). As demonstrated above, Cichon has presented no
such evidence. Accordingly “what this case really comes
down to is . . . deciding which applicant is more qualified,”
a decision that we leave to the employer. Millbrook, 280
F.3d at 1183. Filing a lawsuit under the FLSA does not im-
munize an employee from adverse employment actions, or
prevent “the employer from exercising its business judg-
ment.” Blackie v. Maine, 75 F.3d 716, 723 (1st Cir. 1996).
Cichon’s indirect, insubstantial evidence fell far short of
demonstrating that Exelon’s proffered reason for hiring
Nolan was pretextual. See Perfetti, 950 F.2d at 452. We thus
conclude that the district court’s grant of summary judg-
ment to Exelon on Cichon’s claim that he was not hired for
the Turbine Project Manager position in retaliation for
filing an FLSA lawsuit was proper.
IV. CONCLUSION
The decision of the district court is
AFFIRMED.
No. 03-3724 21
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-21-05