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decided: July 17, 1989.
NATIONAL-STANDARD COMPANY, PLAINTIFF-APPELLANT,v.VALDAS V. ADAMKUS, AS REGIONAL ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, LEE M. THOMAS, AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, HARDING-LAWSON ASSOCIATES, AND H. AND K.W. BROWN, DEFENDANTS-APPELLEES
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 87 C 5165 -- Paul E. Plunkett, Judge.
Coffey, Ripple, and Kanne, Circuit Judges.
RIPPLE, Circuit Judge
This case involves Environmental Protection Agency (EPA) inspections of two facilities owed by National-Standard Company (National-Standard) in Niles, Michigan. In its original declaratory judgment action, the appellant challenged whether the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. §§ 6901 et seq., authorizes EPA to inspect the National-Standard facilities. The district court upheld EPA's inspection authority, and granted the agency summary judgment. It also denied National-Standard's discovery motion. We now affirm.
National-Standard is a Delaware corporation that manufactures wire products at its Lake Street and City Complex facilities located in Niles, Michigan. National-Standard's manufacturing process generates, and the company stores, materials such as hydrochloric acid, sulfuric acid, and alkaline wastes. These by-products are within the RCRA definition of "hazardous waste." The statute defines hazardous waste as:
a solid waste, or combination of solid wastes, which because of its quantity, concentration or physical, chemical, or infectious characteristics may --
(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
42 U.S.C. § 6903(5).*fn1 As required by section 6925(a), National-Standard applied to EPA for a permit for the treatment, storage, and disposal of the hazardous wastes it generated. See 40 C.F.R. § 270 [hereinafter TSD permit]. At present, its application remains pending, so that National-Standard's facilities currently are operating under "interim status." 42 U.S.C. § 6925(e)(1). Interim status facilities are required to handle hazardous wastes as if operating under a permit. Id. (Persons having applied for a hazardous waste disposal permit "shall be treated as having been issued such permit until such time as final administrative disposition of such application is made."). As part of the process of obtaining a permit, corrective action must be taken with regard to any releases of hazardous wastes. Interim status facilities that experience hazardous waste releases are also subject to corrective action. Id. at §§ 6924(u), 6928(h).
On March 24 and 25, 1987, ERA officials visited the facilities and performed visual site inspections During that tour, the officials determined that there were several "solid waste management units" (SWMUs) at each facility and that corrective action would be necessary. On April 3, EPA formally notified National-Standard that it was planning a sampling visit at National-Standard's facilities as the next stage of the corrective action program required under sections 6924(u) and 6927. See Letters from Richard Traub to Richard Moessner (Apr. 3, 1987) [hereinafter Notification Letters]; Vol.I, R.1 at Ex. 1-A, 1-B. In the Notification Letters, EPA stated that it wanted to conduct a hazardous waste inspection and collect samples to determine the nature of any corrective action required at National-Standard's facilities before granting the company a permit to store hazardous wastes. The Notification Letters also stated that EPA contractors (defendants-appellees Harding-Lawson Associates and K.W. Brown & Associates, Inc.) were to assist with the sampling, and that representatives of the Michigan Department of Natural Resources would observe the inspection. Finally, the Letters identified thirty SWMUs at the Lake Street and City Complex facilities that would be targeted by the inspection team.
National-Standard refused to consent to the inspection. It protested the breadth of EPA's intended sampling, and stated that section 6924(u) did not authorize the "fishing expedition" proposed by EPA. It also alleged that many of the proposed sampling sites were not SWMUs.*fn2 See Letters from Mary Ellen Hogan to T. Leverett Nelson (May 11, 1987), Vol.I, R.1 at Ex. 2-A, 2-B; Appellant's Br. at 38-39. Soon afterwards, National-Standard filed a declaratory judgment action in the district court for the Northern District of Illinois. Vol.I, R.1. The complaint sought declaratory relief on the ground that EPA lacked authority under section 6924(u) to inspect the National-Standard facilities and that any inspections allowed under sections 6924(u) and 6927(a) were limited to hazardous wastes specifically listed in the Code of Federal Regulations Id. Venue was grounded on the location in Chicago of the EPA Regional Administrator charged with overseeing RCRA enforcement at the facilities.
Three days after the filing of the complaint, EPA applied for and obtained ex parte an administrative search warrant to inspect the National-Standard facilities from the United States magistrate in the district court for the Western District of Michigan (the district that encompasses Niles). Attached to the warrant application was the affidavit of Ms. Carol Witt, an EPA geologist. Ms. Witt had been part of the EPA visual site inspection team that visited the National-Standard facilities on March 24th and 25th; as a result of this inspection, she had determined that there were several SWMUs at each facility. She further stated that, based on her observations of discolored soil, surface water body sediments, discontinuities in vegetation, and odors, there had been releases of what may be hazardous wastes or constituents from some of the SWMUs. She believed the releases may have been hazardous wastes because they were near known SWMUs containing ignitable solid wastes, copper cyanide, lead, or waste water treatment sludges from electroplating operations. Ms. Witt proposed taking no more than sixty solid waste, water, and air samples, including background samples, at the facilities. Vol.II, R.10 at Ex. B. On July 15, 1987, three days after obtaining the warrant, EPA commenced execution.
On June 16, 1987, National-Standard responded, filing in the district court for the Western District of Michigan: (1) a complaint seeking preliminary and permanent injunctive relief barring EPA from continuing the inspection and from using the inspection results; and (2) an emergency motion to quash the administrative search warrant and to transfer venue of all Michigan proceedings to the district court for the Northern District of Illinois Vol.II, R.1 at Ex. A & Ex. B. Alter conferring with the district judge presiding over the pending declaratory judgment action in the Northern District of Illinois, the chief judge of the Western District of Michigan ordered all proceedings transferred to Illinois. National-Standard Co. v. Adamkus, No. 87-42-M (W.D.Mich. June 16, 1987) (order); Vol.II, R.1 at Ex. C.
Eventually, all matters were consolidated in the Northern District of Illinois. Upon making a finding of relatedness, the district court joined the Michigan-initiated proceedings with the original declaratory judgment action. The court also entered an agreed order whereby EPA could continue its inspection and take samples from the National-Standard facilities, but could not obtain the results of the analyses from EPA's contract laboratories. National-Standard then filed an amended complaint seeking declaratory relief, an order quashing the administrative search warrant, and preliminary and permanent injunctive relief as to the results of the first inspection. Vol.II, R.30. This complaint, when read in its totality, requests a broad adjudication as to the inspection powers of EPA with respect to a facility such as National-Standard's.
The district court later granted EPA's motion to deny National-Standard's discovery requests and granted summary judgment in favor of EPA and its contractor codefendants. National-Standard Co. v. Adamkus, No. 87 C 5765 (N.D.Ill. Mar. 23, 1988) (memorandum opinion and order) [hereinafter Mem. op.]. The court also vacated the agreed order -- releasing the sampling results to EPA. However, on the basis of the record before us, it appears that no EPA corrective action has been ordered since it received the sampling results.
A. Jurisdiction
Halfway through its oral argument before this court, EPA questioned, for the first time, whether the transfer order by the district court for the Western District of Michigan was properly granted. Specifically, EPA argued that Federal Rule of Criminal Procedure 41(a), in conjunction with the civil action transfer statute, 28 U.S.C. § 1404(a), requires this court to conclude that the transfer was incorrect and that, consequently, we cannot consider the propriety of the warrant's issuance. Supplemental briefs were submitted by both EPA and National-Standard. We hold that EPA has waived this issue. A thorough review of the record reveals no attempt by EPA or its co-appellees to object to the transfer when it was made. Never once in all its pleadings or briefs before the various courts in this case did EPA ever question the validity of the transfer from Michigan to Illinois. The EPA did not seek review*fn3 of the transfer order in the Sixth Circuit. See Illinois Tool Works, Inc. v. Sweetheart Plastics, Inc., 436 F.2d 1180, 1187-88 (7th Cir.), cert. dismissed, 403 U.S. 942, 91 S. Ct. 2270, 29 L. Ed. 2d 722 (1971); Purex Corp. v. St. Louis Nat'l Stockyards Co., 374 F.2d 998, 1000 (7th Cir.), cert. denied, 389 U.S. 824, 88 S. Ct. 59, 19 L. Ed. 2d 77 (1967); see also Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 985-87 (11th Cir. 1982). Nor did it move for retransfer of the matter in the district court for the Northern District of Illinois. See Purex, 374 F.2d at 1000; Linnell v. Sloan, 636 F.2d 65, 67 (4th Cir. 1980); see generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3846 at 359-60 (1986) ("The transfer order is not subject to review by the transferee court or its court of appeals. . . . But an order of transfer is not res judicata. A motion to retransfer the action may be made in the transferee court and the ruling on that motion is reviewable in the court of appeals to which the transferee court is responsible.") (footnotes omitted). Consequently, we shall not allow this afterthought to be argued before us now.
B. Mootness
Next, EPA submits that National-Standard's entire appeal is now moot in light of EPA's having obtained the results of the sampling analyses after the district court's agreed order was vacated. A moot case is one that fails to present a "live" controversy to the adjudicating court. United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980). With regard to establishing mootness, a "heavy" burden of proof rests on the party suggesting mootness -- EPA. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 97 L. Ed. 1303, 73 S. Ct. 894 (1953). EPA has failed to carry its burden.
As noted above, this appeal is from a district court judgment denying National-Standard's broad request for declaratory and injunctive relief. Due to the vacation of the agreed order, EPA now possesses the results of the search and may order corrective action at the National-Standard facilities. The facts of this case thus closely resemble those addressed by this court in Donovan v. Fall River Foundry Co., 712 F.2d 1103 (7th Cir. 1983). In Fall River, an employer appealed a district court's holding that an administrative search warrant obtained by the Occupational Safety and Health Administration (OSHA) was not violative of the employer's fourth amendment rights by reason of alleged overbreadth. Although the warrant had been executed, this court reviewed its scope and the subsequent search of the employer's records. In addressing the agency's claim that mootness precluded such review, the court said:
Initially, it is important to note that, despite the limited search of the Fall River facility OSHA conducted in late 1982 or early 1983, this case is not moot. . . . [Should] citations issue against Fall River pursuant to the limited search, Fall River might contest them on the theory that they resulted from a search that violated the Fourth Amendment because of the overbreadth of the warrant.
712 F.2d at 1111. Accord Matter of Kulp Foundry Co., Inc., 691 F.2d 1125, 1129 (3d Cir. 1982) (case moot because modified warrant had been fully executed and no citations issued). Contra B&B Chemical Co., Inc. v. United States EPA, 806 F.2d 987, 990-91 (11th Cir. 1986) (rejecting Third and Seventh Circuits' approach). Indeed, this case presents a stronger case against mootness than Fall River Under the statutory scheme at issue here, there is every probability that EPA will act on the results of the samples obtained by the administrative search warrant. Under the comprehensive scheme of RCRA, discussed further infra, interim status hazardous waste facilities like those at National-Standard's Niles plants are subject to the same level of stringent regulation as permitted hazardous waste facilities. See generally 42 U.S.C. § 6295(i); D. Stever, Law of Chemical Regulation and Hazardous Waste §§ 5.06[2][c], 5.06[2][d][i][B] (1988). Therefore, as a result of this search, EPA will take one of the following steps: (1) order immediate corrective action under section 6928(h); (2) consider the results and nevertheless grant a TSD permit; or (3) consider the results but not order immediate corrective action, and then later deny a TSD permit and order corrective action.
This court's holding in United States v. Kis, 658 F.2d 526 (7th Cir. 1981), cert. denied, 455 U.S. 1018, 102 S. Ct. 1712, 72 L. Ed. 2d 135 (1982), on which EPA relies heavily, is not to the contrary. In His, we held that taxpayers' compliance with an Internal Revenue Service request for handwriting exemplars mooted their appeal as to the enforceability of government summonses for those exemplars. 658 F.2d at 532-33. In so ruling, this court agreed with earlier rulings of six other circuits on the precise question. Id. at 532. We said that:
The [taxpayers] contend that this court could grant them relief by declaring the summons to be invalid and by suppressing the handwriting exemplars and any evidence obtained as a result of their submission. Such a ruling, however, would ignore the well-established rule that questions of suppression should not be considered until the time when the Government seeks to use the evidence. It would be highly speculative so to rule at this stage, for there is no guarantee that the Government will ever seek to use that evidence. It may never even bring any subsequent actions against the [taxpayers].
Id. at 533 (footnote omitted) (emphasis supplied). There is no necessity for such speculation here. The statutory scheme makes further EPA action virtually inevitable. In the legislative history of the 1984 Hazardous and Solid Waste Amendments to RCRA, Pub.L. 98-616, 98 Stat. 3221 (1984), Congress made clear that past inadequate efforts by EPA in promulgating regulations, permitting facilities, and law enforcement necessitated the tightened statutes, See H.Rep.No. 98-198, Part I, 18-20, 44-46, reprinted in 1984 U.S.Code Cong. & Admin.News 5576-79, 5603-05. Congress has required EPA to take affirmative action in overseeing hazardous waste at interim status facilities.*fn4 Thus, to fulfill its congressional mandate, EPA must "use the evidence" (i.e. review the sampling analyses from this search) either to issue a TSD permit or to order corrective action.
Besides this initial use of the sampling results, it is virtually certain that EPA will likely again have to reinspect and resample the National-Standard facilities in order to guarantee the company's compliance. Congress requires those facilities granted a TSD permit to undergo mandatory inspections at least once every two years. 42 U.S.C. § 6927(e)(1). The situation presented here is thus "capable of repetition, yet evading review." See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911). There is, given the statutory scheme, "a 'reasonable expectation' or a 'demonstrated probability' that the same controversy will recur involving the same complaining party." Murphy v. Hunt, 455 U.S. 478, 482, 71 L. Ed. 2d 353, 102 S. Ct. 1181 (1982) (per curiam); see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976) (question of constitutionality of pretrial restrictive order not moot even after the expiration of that order upon jury impaneling); Weinstein v. Bradford, 423 U.S. 147, 149, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975) (per curiam). EPA's initial search is the starting point of an ongoing regulatory relationship between National-Standard and EPA to ensure the safe storage and eventual disposal of hazardous wastes at the Lake Street and City Complex facilities. Under that scheme, inspections are not merely possible, but highly likely.
A. EPA's Statutory Authority
The primary issue raised by the appellant before this court is whether RCRA authorizes EPA to inspect the National-Standard facilities. National-Standard submits that sections 6924(u) and 6927(a) bar these EPA inspections. EPA responds that RCRA clearly authorizes inspection searches like the ones conducted here, and alternatively submits that EPA's interpretation*fn5 of section 6927 is reasonable and thus merits deference by this court.*fn6 EPA also submits that section 6924(u)*fn7 authorizes the inspection of National-Standard's Niles facilities. We hold that the RCRA inspection provision relied upon by the magistrate -- section 6927(a) -- authorizes EPA's entry and inspection of National-Standard's facilities, and thus we affirm the judgment of the district court.*fn8
The starting point of statutory interpretation is the now-familiar two-part test delineated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). There, a unanimous Supreme Court explained how a court is to evaluate an agency's interpretation of a statute it administers. First, the court must determine "whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." 467 U.S. at 842-43 (footnote omitted). See also American Mining Congress v. United States EPA, 263 U.S. App. D.C. 197, 824 F.2d 1177, 1182 (D.C.Cir. 1987) ("This inquiry focuses first on the language and structure of the statute itself. If the answer is not yielded by the statute, then the court is to look to secondary indicia of intent, such as the measure's legislative history."). Second, in cases where Congress' intent is not clear or where "Congress has not directly addressed the precise issue in question . . . [,] the question for the court is whether the agency's answer is based on a permissible interpretation of the statute." Chevron, 467 U.S. at 843 (footnotes omitted). We turn, then, to the first step and examine the language employed by Congress. See CBS, Inc. v. FCC, 453 U.S. 367, 377, 101 S. Ct. 2813, 69 L. Ed. 2d 706 (1981); Reiter v. Sonotone Corp., 442 U.S. 330, 337, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1979).
Section 6927(a) provides:
(a) Access entry
For purposes of developing or assisting in the development of any regulation or enforcing the provisions of this chapter, any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes shall, upon request of any officer, employee or representative of the Environmental Protection Agency, dull designated by the Administrator, or upon request of any duly designated officer, employee or representative of a State having an authorized hazardous waste program, furnish information relating to such wastes and permit such person at all reasonable times to have access to, and to copy all records relating to such wastes. For the purposes of developing or assisting in the development of any regulation or enforcing the provisions of this chapter, such officers, employees or representatives are authorized --
(1) to enter at reasonable times any establishment or other place where hazardous wastes are or have been generated, stored, treated, disposed of, or transported from;
(2) to inspect and obtain samples from any person of any such wastes and samples of any containers or labeling for such wastes.
Each such inspection shall be commenced and completed with reasonable promptness. If the officer, employee or representative obtains any samples, prior to leaving the premises, he shall give to the owner, operator, or agent in charge a receipt describing the sample obtained and if requested a portion of each such sample equal in volume or weight to the portion retained. If any analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator, or agent in charge.
42 U.S.C. § 6927(a).
National-Standard submits that the plain language of this provision explicitly limits any authorized inspections solely to "inspect and obtain samples from any person of any such wastes and samples of any containers or labeling for such wastes." EPA thus exceeded its authority in broadening its search to the collection of samples that, according to National-Standard, "relate to" hazardous wastes. Appellant's Br. at 16. In National-Standard's view, section 6927(a) permits EPA inspections only when a given facility identifies itself as possessing hazardous wastes, at which point EPA may sample from any SWMU those wastes, or their containers, or container labels only. Furthermore, those hazardous wastes which may be sampled are to be defined by the hazardous waste facility, not EPA. Id. at 17.*fn9
We cannot accept such an interpretation of section 6927(a). We agree with the district court that this interpretation would "emasculate EPAs ability to pursue the broad remedial goals of RCRA." Mem. op. at 22. Like the district court, we believe that "[the] main purpose of an inspection and sampling visit is to detect the presence of hazardous wastes. If EPA could not inspect an area unless it knew hazardous wastes were stored there, EPA would be rendered effectively powerless." Id. EPA's broad inspection authority is tempered by its need to show probable cause and obtain an administrative search warrant, discussed infra, when a hazardous waste facility owner, such as National-Standard, does not consent to the inspection.
Section 6927(a) inspections are authorized "[for] the purposes . . . of enforcing the provisions of this chapter." Chapter 82 of Title 42 of the United States Code, 42 U.S.C. §§ 6901-91i, provides EPA with a broad mandate for enforcing the national policy of treating, storing, and disposing of hazardous wastes "so as to minimize the present and future threat to human health and the environment." 42 U.S.C. § 6902(b). The Notification Letters' reference to a particular provision that authorizes corrective action orders for hazardous waste releases from SWMUs -- section 6924(u) -- does not limit EPA's ability to inspect and sample from areas other than SWMUs. EPA's inspection and sampling authority derives from the broad language in section 6927(a), which empowers the agency to enforce the entire RCRA scheme, not just a particular provision. In determining the material that EPA may sample under section 6927(a), Congress significantly chose the broad, general term "hazardous waste" defined in section 6903(5) (set out in Part I) rather than "hazardous waste identified or listed under this subchapter," employed in other provisions. See, e.g., 42 U.S.C. §§ 6924(a), 6925(a). This broad range of materials Congress intended to subject to sampling under section 6927(a) was demonstrated in the HSWA legislative history:
EPA's authority under these provisions [RCRA sections 3007 and 7003] is not limited to wastes that are 'identified or listed' as hazardous, but rather includes all wastes that meet the statutory definition of hazardous wastes.
H.Rep. 198, 98th Cong., 1st Sess. 47 (1983), see EPA Br. at 28 n. 15.
Finally, National-Standard's interpretation of section 6927(a) as being limited to situations of proven actual releases is also incorrect. A similarly narrow interpretation of the Clean Water Act was rejected by this court in Mobil Oil Corp. v. EPA, 716 F.2d 1187 (7th Cir. 1983), cert. denied, 466 U.S. 980, 80 L. Ed. 2d 835, 104 S. Ct. 2363 (1984). In Mobil, this court refused to quash an administrative search warrant for the sampling of untreated waste water. The court interpreted the Clean Water Act and held that:
These provisions of [the Clean Water Act inspection provision] leave no doubt that the Congress that enacted that Section was firmly convinced that the interest of permit holders such as Mobil in keeping secret information about the pollutants in its waste water is not entitled to protection.
716 F.2d at 1190. Likewise, section 6927(a) clearly vests broad authority in EPA to inspect and sample any facility at which the agency has probable cause to believe that violations of the statute are occurring.
B. Issuance of Warrant
National-Standard next argues that, despite EPA authority to inspect and sample pursuant to an administrative search warrant, such a warrant was granted improperly here.*fn10 The appellant claims three flaws in the warrant: (1) not enough probable cause was shown; (2) the warrant was overbroad; and (3) it should not have been issued ex parte. Upon review, however, we determine that none of the alleged flaws exist.
1. Probable Cause
The appellant asserts that Ms. Witt's affidavit provided insufficient probable cause for the issuance of the warrant. In order for an administrative warrant to issue, (1) there must be specific evidence of an existing violation, or (2) the search must be part of a general neutral administrative plan. Marshall v. Barlow's, Inc., 436 U.S. 307, 320-21, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978). Here, the warrant was issued on the former basis -- specific evidence of a RCRA violation. National-Standard recognizes that administrative warrants do not require the same degree of probable cause as do criminal warrants. See Weyerhaeuser Co. v. Marshall, 592 F.2d 373, 377 (7th Cir. 1979); In re Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d 1335 (7th Cir. 1979); West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950 (11th Cir. 1982). Nevertheless, it urges that Ms. Witt's affidavit does not satisfy even these standards.
To determine whether this warrant passes probable cause muster, we shall compare the quantum of evidence presented to the reviewing magistrate to that considered by other courts reviewing the issuance of administrative search warrants. See Gilbert & Bennett, 589 F.2d at 1342. In Weyerhauser, this court rejected as insufficient an affidavit for an OSHA search that merely stated a generalized summary of the one complaint that the agency received. 592 F.2d at 378 & n. 6. In Gilbert & Bennett, this court upheld a very detailed affidavit in support of an OSHA search that listed explicit conditions and complaints. 589 F.2d at 1339-42. The court also noted that in determining whether probable cause exists, "'the need for inspection must be weighed in terms of [the] reasonable goals of code enforcement.'" Id. at 1338 (quoting Camara v. Municipal Ct., 387 U.S. 523, 535, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967)); see also Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d 1313 (7th Cir. 1980). In West Point-Pepperell, the Eleventh Circuit found sufficient probable cause in an affidavit based on nearly seventy interviews. 689 F.2d at 958.
Here, we conclude that, like the affidavit reviewed in Gilbert & Bennett, Ms. Witt's detailed affidavit satisfies the level of probable cause necessary for the issuance of an administrative search warrant. As outlined supra, Part I, the affidavit explained the various known hazardous wastes at the National-Standard facilities and the affiant's observations at earlier visual site inspections. See R.44 at Ex. D. Additionally, the affidavit included photographs of what appear to be dead vegetation, leaking barrels, etc. "In no way was the warrant application mere boilerplate," concluded the district court. Mem. op. at 16. We agree. This specificity, together with Congress' express desire for strong enforcement of the RCRA statute, supra, clearly constituted sufficient probable cause for the issuance of the administrative search warrant.
2. Overbroad Warrant
National-Standard also argues that the warrant purports to grant EPA permission to perform inspection and sampling beyond that specifically described in RCRA. See 42 U.S.C. § 6927(a). In particular, it submits that "background samples" authorized by the warrant are not authorized by RCRA. Appellant's Br. at 36. National-Standard has not asserted that procurement of such background sampling incurred any specific problems, such as undue interference with plant operations; indeed, an examination of a map of the facilities confirms that no sampling locations were obstructive.
The Supreme Court's discussion in Dow Chemical Co. v. United States, 476 U.S. 227, 90 L. Ed. 2d 226, 106 S. Ct. 1819 (1986), is persuasive guidance. There, Dow claimed that EPA had no authority to use aerial photography to implement its statutory power for site inspection under the Clean Air Act. The Court held that:
Congress has vested in EPA certain investigatory and enforcement authority, without spelling out precisely how this authority was to be exercised in all the myriad circumstances that might arise in monitoring matters related to clean air and water standards. When Congress invests an agency with enforcement and investigatory authority, it is not necessary to identify explicitly each and every technique that may be used in the course of executing the statutory mission. . . .
Regulatory or enforcement authority generally carries with it all the modes of inquiry and investigation traditionally employed or useful to execute the authority granted.
476 U.S. at 233 (emphasis supplied).
Background sampling is a mode of "inquiry and investigation traditionally employed" in the type of scientific sampling authorized by section 6927(a). Accordingly, we agree with the district court that "[the] power to take background samples is implicit in EPA's power to detect releases of hazardous wastes." Mem. op. at 23. There is "no indication in the statute that Congress intended to foreclose EPA from taking control or background samples in the ordinary course of scientific investigation." Id. Therefore, in light of our determination that the administrative search warrant was properly limited in scope (location, duration, and number of samples) to meet the Dow standard, we hold that the warrant was not overbroad.
3. Ex Parte
To persuade this court that use of an ex parte proceeding was improper, National-Standard relies almost exclusively on the district court opinion in In re Stauffer Chemical Co., 14 Env't Rep. Cas. (BNA) 1737 (D.Wyo. 1980), aff'd, 647 F.2d 1075 (10th Cir. 1981). In Stauffer, the district court quashed an EPA administrative search warrant for the Clean Air Act inspection of a phosphate plant. It said that:
The use of an ex parte proceeding to obtain the Administrative Warrant was, under the circumstances of this case, improper and violated principles of fundamental fairness. This is a case of first impression. EPA's counsel . . . was at all times fully aware that Stauffer would challenge the Agency's authority to force entry by private contractors onto plant premises. For that reason, fundamental principles of justice and fair play dictated that Stauffer be allowed to contest the issue before a warrant was issued and the entry effectuated. However, instead an ex parte procedure was issued by EPA in this case, without notice of any kind to Stauffer. . . . Although ex parte warrants may be proper under other circumstances, we feel that in view of the novel aspects of this case, notice and an opportunity to be heard should have been provided by the EPA's attorney.
Stauffer, 14 Env't Rep.Cas. (BNA) at 1741 (emphasis supplied).*fn11 National-Standard submits that, like the Stauffer Company, it voiced its intention to mount a legal challenge to EPA's authority to inspect, no exigent circumstances existed, National-Standard had been cooperative in following the permit procedure, and these provisions of RCRA had not yet been interpreted by this court.
National-Standard's argument fails to recognize that ex parte proceedings are the normal means by which warrants are obtained in both criminal and administrative actions, and do not, in and of themselves, evidence bad faith. See Midwest Growers Co-Op v. Kirkemo, 533 F.2d 455, 464 (9th Cir. 1976); In re Stanley Plating Co., Inc., 637 F. Supp. 71, 72 (D.Conn. 1986). In Stanley Plating, the court held that the pendency of a civil proceeding that had been initiated against the polluter by EPA did not prevent the agency from invoking its search and sampling power accorded by section 6927(a); the discovery constraints of Rule 26 of the Federal Rules of Civil Procedure did not dictate otherwise. 637 F. Supp. at 72.*fn12
EPA's inspection authority in section 6927(a), together with the admitted presence of hazardous waste at the facilities, an EPA scientist's belief that a release of hazardous waste had occurred, and satisfactory probable cause, preclude any argument that it was improper for EPA to apply for and obtain an ex parte administrative search warrant. The mere pendency of a related civil action does not automatically preclude EPA's use of other authorized law enforcement techniques such as the ex parte application for an administrative search warrant. See Stanley Plating, 637 F. Supp. at 72.
EPA was properly authorized by section 6927(a) to perform an inspection and sampling visit at the Niles Lake Street and City Complex facilities of the National-Standard Company. Therefore, we affirm the district court's grant of summary judgment to EPA on this issue.*fn13 We also affirm the district court's judgment upholding the issuance of the warrant and denial of discovery to National-Standard.*fn14
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United States District Court, N.D. Illinois, Eastern Division
June 13, 2005.
LINH THANONGSINH, Plaintiffs,
SCHOOL DISTRICT U-46 AND HANAN JAVETZ, individually and in his official capacity, Defendants.
This matter is before the court on Defendant School District
U-46's ("District") and Defendant Hanan Javetz's ("Javetz")
motion for summary judgment. For the reasons stated below, we
grant Defendants' motion for summary judgment in its entirety.
The District is made up of fifty-three schools in the state of
Illinois, including Oakhill Elementary School ("Oakhill").
Plaintiff Linh Thanongsinh ("Thanongsinh"), who refers to himself
as "an Asian-American male of Chinese and Laotian descent," (A.
Compl. Par. 10), began working for the District in October of 1991. Thanongsinh contends that he was awarded a Group V Head
Custodian position ("Group V position") at Oakhill in 1996,
although the District claims that he did not achieve the Group V
position status until 2002.
In 2002, the District and Education Support Services
Organization ("Union"), the union that represented Thanongsinh,
began contract negotiations. During the negotiations the District
and the Union agreed to phase out the Group V positions at the
District's elementary schools through a certification process and
through natural attrition.
The final collective bargaining agreement in 1992 ("CBA"),
negotiated by the District and the union, contained the procedure
for conducting the certification for Group V positions. Under the
procedure, a participant was first given a written test and was
required to score at least a fifty. If the participant scored at
least a fifty on the written test, the participant could proceed
onward and take the "hands-on" portion of the certification
process and the participant would receive another score for that
test. In order for a participant to be certified, the average of
the two test scores of the participant had to be at least
seventy. If a participant did not achieve certification on the
first try, the participant could begin anew and start the
certification process again.
Thanongsinh took the written test for certification on November
8, 2002, and he received a score of 55. Thanongsinh then took the
"hands-on" test on March 14, 2003, which was administered by Ron
Dugo and Defendant Javetz. Thanongsinh received a score of 66.62
for the "hands-on" test, and since his average score was 60.81, which was below 70, he did not receive certification as
required under the CBA. Thanongsinh claims that Javetz purposely
gave Thanongsinh a low score because of Thanongsinh's race, so
that Thanongsinh would fail the certification process.
On May 3, 2003, Thanongsinh began the certification process
again. He scored a 46 on the written test, and, as required by
the CBA, he could not proceed to the "hands-on" test because the
score was below 50. On June 24, 2003, the District informed
Thanongsinh that since he had failed to achieve certification,
his job was declassified to a Category 2 Custodian as of July 1,
2003. On September 26, 2003, Thanongsinh began the certification
process for the third time and scored a 35.91 on the written test
which once again, under the CBA procedures, disqualified him for
the "hands-on" test.
In the instant action Thanongsinh has filed an amended
complaint which alleges violations of Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.
(Count I), and violations of 42 U.S.C. § 1981 ("Section 1981")
(Count II).
Summary judgment is appropriate when the record, viewed in the
light most favorable to the non-moving party, reveals that there
is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). In seeking a grant of summary judgment the moving party
must identify "those portions of `the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This
initial burden may be satisfied by presenting specific evidence
on a particular issue or by pointing out "an absence of evidence
to support the non-moving party's case." Id. at 325. Once the
movant has met this burden, the non-moving party cannot simply
rest on the allegations in the pleadings, but, "by affidavits or
as otherwise provided for in [Rule 56], must set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for
summary judgment is not simply a "metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue
of material fact exists when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir.
2000). The court must consider the record as a whole, in a light
most favorable to the non-moving party, and draw all reasonable
inferences that favor the non-moving party. Anderson,
477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th
Cir. 2000). DISCUSSION
I. Title VII Claims
Defendants move for summary judgment on the Title VII claim. If
an employer in a Title VII discrimination case brings a motion
for summary judgment, the plaintiff can proceed under the direct
or indirect approach in order to defeat the motion. Pafford v.
Herman, 148 F.3d 658, 665 (7th Cir. 1998). Under the direct
approach, the plaintiff can show through direct or circumstantial
evidence that the alleged harmful action of the employer was
"motivated by an impermissible purpose, such as [his] race or
national origin." Id.
In regards to a Title VII claim which is based upon a failure
to promote, for a prima facie case a plaintiff must establish
that he was: "(1) a member of a protected class; (2) qualified
for the position sought; (3) rejected for the position; and (4)
treated less favorably than a similarly situated candidate
outside h[is] protected class." Butts v. Aurora Health Care,
Inc., 387 F.3d 921, 924 (7th Cir. 2004).
If a prima facie case is established, there is a rebuttable
presumption of discrimination and the employer is required to
offer a "legitimate, non-discriminatory reason for the adverse
employment action." Cianci v. Pettibone Corp., 152 F.3d 723,
726 (7th Cir. 1998). If the employer provides such a reason, the
plaintiff must then show that the reason alleged by the employer
is merely a pretext for discrimination. Id. Thanongsinh does
not have sufficient evidence to proceed under the direct approach
and will need to proceed under the indirect approach. See Jordan
v. City of Gary, 396 F.3d 825, 832 (7th Cir. 2005) (stating
that "[t]o prove discrimination via direct evidence "essentially requires an
admission by the decision-maker that his actions were based on
the prohibited animus . . . [and that] [i]t should not be
surprising that in today's politically correct workplace
environment such admissions are rarely, if ever, made or
encountered. . . ."). In the instant action Defendants concede
that Thanongsinh is a member of a protected class.
A. Rejection for the Position
Defendants concede that Thanongsinh failed to achieve
certification on his first attempt during which Javetz allegedly
discriminated against him and Defendants admit that Thanongsinh's
job status was eventually downgraded due to Thanongsinh's failure
to achieve certification. Defendants thus took an adverse
employment action against Thanongsinh when they downgraded his
status. However, the record is also clear that Defendants gave
Thanongsinh every opportunity to achieve certification after the
alleged discrimination. Thanongsinh was allowed to take the
written test on two more occasions and he failed the written
In fact, Thanongsinh expressly admits pursuant to Local Rule
56.1 that "he did not prepare for the second certification test"
despite the fact that the principal of Oakhill "offered to assist
Mr. Thanongsinh in preparing for the test . . . [and] offered to
help him organize a study group." (R SF 44, 45). Thanongsinh also
admits pursuant to Local Rule 56.1 that "he did not study or
prepare for the third certification test." (R SF 51). Thus, the responsibility for
Thanongsinh's failure on his second and third attempts at the
certification process can be placed squarely on the shoulders of
Thanongsinh. Thanongsinh, through his own lack of diligence,
failed to achieve certification on his second and third attempts
which resulted in the declassification of his position. Thus,
although Thanongsinh has argued that the first "hands-on" test
scoring was unfair, that test at best resulted in only a
temporary action by the District. Thanongsinh admits that he was
given the second opportunity to achieve certification even before
the declassification of his position (R SF 43, 47), and that he
was given an opportunity after the downgrade to achieve
certification (R SF 48), which would have allowed him to regain
his Class V position status.
B. Whether Thanongsinh was Qualified
Defendants contend that Thanongsinh was not qualified for the
Group V position. A plaintiff is required to show that he was
qualified at the time of the adverse employment action. Hong v.
Children's Memorial Hospital, 993 F.2d 1257, 1262 (7th Cir.
1993). Defendants' only argument on this issue is that
Thanongsinh was not qualified because he failed in all three of
his attempts to attain certification. (Mem. 6). Pursuant to Local
Rule 56.1 Thanongsinh admits that he attempted to obtain
certification on three separate occasions and that he received a
failing score on all three attempts. (R SF 14, 36, 43, 46, 48,
50). Thanongsinh was given every opportunity to achieve
certification. The fact that on two of his three attempts he could not even proceed past the written portion of the
certification process which tests his knowledge of the
requirements for a Group V position is a clear indication that he
was not qualified for the position.
C. Similarly Situated Employees
Defendants argue that Thanongsinh has not pointed to similarly
situated employees outside the protected class that were treated
more favorably than him. An employee is similarly situated if the
employee "is one who is `directly comparable to [the plaintiff]
in all material respects.'" Rogers v. City of Chicago,
320 F.3d 748, 755 (7th Cir. 2003) (quoting Grayson v. O'Neill,
308 F.3d 808, 819 (7th Cir. 2002)); see also Jordan, 396 F.3d 825,
833 (7th Cir. 2005) (phrasing the fourth element of the prima
facie case as requiring a plaintiff to show that "the position
was granted to a person outside the protected class who is
similarly or less qualified than the plaintiff."); Snipes v.
Ill. Dep't. of Corrections, 291 F.3d 460, 463 (7th Cir. 2002)
(indicating that a similarly situated employee is identified by
comparing the employee's "performance, qualifications and
conduct" to the plaintiff's "performance, qualifications and
1. Proper Comparison for Similarly Situated Analysis
In the instant action, all Group V position custodians were
required to take the certification test. Defendants argue that
Thanongsinh would be similarly situated only with Group V position custodians that failed to obtain
certification and that employees that had achieved certification
would not be similarly situated. (Mem. 6). However, as explained
above, the scoring during the certification process by Javetz is
a basic part of the alleged discrimination in this suit.
Thanongsinh does not argue in either his complaint or his briefs
that the certification tests themselves were formulated in a
fashion in order to discriminate against persons of his race.
Rather he argues that he failed to attain certification because
of Javetz's biased scoring and because Javetz did not provide
similar assistance to Thanongsinh that was provided to other test
takers, such as giving them a calming instruction. The essence of
Thanongsinh's claim is that Javetz was biased in favor of
caucasian employees. Thanongsinh attempts to illustrate this
point by providing a breakdown of the passing rates for tests
administered by Javetz for caucasian applicants and minority
applicants. (Ans. 13). Thanongsinh also points to evidence that
Dugo thought that Javetz did not give fair scores to Thanongsinh
and that Javetz had an animosity towards Thanongsinh. (Ans. 8,
12). Thanongsinh also attempts to show that Javetz held the
animosity against Thanongsinh because of his race by showing that
Javetz made a comment about Thanongsinh's ability to speak
English. (Ans. 13). In fact, in the beginning of Thanongsinh's
answer to the instant motion, he states that he "does not
complain about Defendants' decision to administer a hands-on
certification test." (Ans. 1).
Thus, the proper comparison for the similarly situated analysis
in the instant action is between Thanongsinh and other employees
that sought Group V certification that did not share the same racial background as
Thanongsinh, and who achieved certification either through fair
testing or because the employees were given added assistance
which was not provided to Thanongsinh.
2. Similarly Situated Comparison
Thanongsinh identifies two individuals and one group of
individuals as similarly situated employees.
a. Mitchell Cain
Thanongsinh first identifies Mitchell Cain ("Cain") who is a
caucasian employee who took the "hands-on" test and received a
passing score. Thanongsinh contends that Javetz was one of the
persons that administered the test for Cain. Thanongsinh claims
that he was given a lower score on his first "hands-on" test
because he did not have an "M.S.D.S. book," but that Cain was not
given a lower score although Cain also did not have an "M.S.D.S.
book." However, Thanongsinh's contentions are based upon an
unverified score sheet he includes as an exhibit.
In ruling on a summary judgment motion a court can only
consider evidence that either would be admissible at trial or
evidence that represents other evidence or information that would
be admissible at trial. Scott v. Edinburg, 346 F.3d 752,
759-60, 760 n. 7 (7th Cir. 2003). In regards to the score
sheet for Cain's test that is relied upon by Thanongsinh,
Thanongsinh has pointed to no testimony or evidence that would lay a proper foundation for the introduction of the score
sheet at trial. In the testimony of Dugo that Thanongsinh refers
to on this issue, Dugo merely indicated what information he saw
on the paper given to him at the deposition.
For instance, Dugo was asked what was meant by a notation of
"No M.S.D.S. book" on the unverified score sheet when he was
asked "Is it your recollection after looking at this that
Mitchell Cain did not have an M.S.D.S. book for his . . . ."
(Dugo Dep. 59-60). Dugo responded "That's what this looks like
here." (Dugo Dep. 60). Dugo did not state that he recollected
that Cain did not have a book or that he could tell for sure that
Cain did not have a book from the score sheet in front of him.
Dugo did not indicate that the score sheet was Cain's or that he
knew that it was authentic. Dugo was also specifically asked if
he had any recollection as to whether Cain had a book with him
and Dugo responded: "No." (Dugo Dep. 60). Thanongsinh has not
shown that the score sheet or the information on the score sheet
would be inadmissible at trial and any deductions he makes based
upon the score sheet is pure speculation and could not be
considered by the trier of fact. Thus, Thanongsinh's theory that
Cain was given more favorable scoring is based upon pure
speculation and Thanongsinh has not shown that Cain was treated
more favorably than him.
b. Mike DiGioia
Thanongsinh also points to Mike DiGioia ("DiGioia") as a
similarly situated employee. DiGioia was assigned in charge of Oakhill when
Thanongsinh's position was declassified. However, as Thanongsinh
admits pursuant to Local Rule 56.1, DiGioia was a Group 9
Custodian, (R SF 55), and the certification process that
Thanongsinh undertook was for Group V positions. (R SF 7, 11,
14). There is no contention by Thanongsinh that DiGioia ever took
the "hands-on" test and thus no contention that DiGioia was given
unequal treatment during a "hands-on" test or that Javetz helped
administer such a test. Thus, Thanongsinh cannot show that
DiGioia was treated differently than Thanongsinh.
Also, since DiGioia was a Group 9 Custodian he is not similarly
situated as to Thanongsinh. Thanongsinh admits that DiGioia only
"attends to matters at Oakhill one day a week and attends to
other District elementary schools during the remainder of the
week." (R SF 56). DiGioia also testified that his job description
was much different than that of a Group V position.
Thanongsinh also argues that DiGioia was less qualified than
Thanongsinh. This argument might be applicable if Thanongsinh's
allegation of discrimination was based upon DiGioia being chosen
for being in charge of Oakhill instead of Thanongsinh. Even if
such was Thanongsinh's position, Thanongsinh has failed to point
to sufficient evidence for a reasonable trier of fact to conclude
that DiGioia was less qualified than Thanongsinh.
Also, DiGioia was simply placed in charge of Oakhill because
Thanongsinh's position was declassified and thus, DiGioia's
assignment was part of the general plan for Group 9 custodians to take over for the Group V positions.
There is no allegation that the certification process was a
scheme by the District to replace Asian Class V position
individuals such as Thanongsinh with non-Asian Group 9 position
individuals. Thanongsinh does not challenge the appropriateness
of the decision to require certification or the phase out of the
Group V positions and the placement of Group 9 individuals.
Thanongsinh's claim of discrimination is not based upon a
complaint that DiGioia was placed in charge of Oakhill instead of
Thanongsinh. Thanongsinh recognizes that DiGioia was placed in
charge as part of the recognized plan, and Thanongsinh's position
is merely that DiGioia would not have been placed in his current
position if Thanongsinh had not failed to receive certification.
c. Caucasian Applicants Tested with McNamara
Finally, Thanongsinh points to caucasian employees that were
tested by Cathy McNamara ("McNamara"). Thanongsinh claims that
McNamara testified that she always gave a calming instruction to
test takers prior to the "hands-on" test and that since Javetz
had administered tests with McNamara, he had participated in at
least a few tests where such calming instructions were given.
Thanongsinh claims that he received no such calming instructions
before his first "hand-on" test which was administered by Javetz.
However, McNamara merely testified that she told the test takers
to "keep safety in mind" and to "make sure" that they followed
all the steps "required by the book." (M. dep. 94). There is no
indication whatsoever that such a pre-test statement by McNamara would give an unfair advantage to
test takers or would have any material impact on the final test
scores. It was merely how McNamara chose to speak to the test
takers before administering the tests. Secondly, Thanongsinh
asserts in his answer that "McNamara administered the hands-on
test to fifteen white Head Custodians," (Ans. 7), and Thanongsinh
thus implies that McNamara only gave the instructions to
caucasian applicants. However, McNamara was asked during her
deposition in regards to the pre-test statements: "And you would
do that with every custodian testing?" and McNamara responded:
"Yes." (M. dep. 94). Thus, the evidence is clear that had
McNamara administered a test for Thanongsinh or for any
non-Caucasians, she would have given the same calming
instructions. There is no evidence pointed to by Thanongsinh that
Javetz routinely gave such a calming instruction to any test
takers and there is no evidence that McNamara participated in
Thanongsinh's first "hands-on" test. Thus, Thanongsinh, cannot
claim that he was similarly situated with the other applicants
tested by McNamara or was treated differently in any material
manner. Therefore, Thanongsinh has failed to point to sufficient
evidence that a similarly situated employee was treated more
D. Pretext Analysis
Defendants argue that even if Thanongsinh were to establish a
prima facie case, Defendants have presented a legitimate
non-discriminatory reason for the declassification of Thanongsinh's status and Defendants contend
that Thanongsinh has not pointed to sufficient evidence that the
reason is a pretext. Defendants assert that the certification
process was a course of action agreed to by the District and the
Union. Defendants contend that since Thanongsinh failed to
achieve certification it was proper to declassify his status.
Thanongsinh argues that the given reason is a pretext for
discrimination. To show a pretext a plaintiff must show that "the
reason put forth was not a true reason, but a pretext-`a
dishonest explanation, a lie rather than an oddity or an error.'"
Herron v. DaimlerChrysler Corp., 388 F.3d 293, 299 (7th
Cir. 2004) (quoting Kulumani v. Blue Cross Blue Shield Ass'n,
224 F.3d 681, 685 (7th Cir. 2000)). To assess whether a given
reason is a pretext a court must determine "whether the employer
gave an honest explanation of its behavior." Hudson v. Chicago
Transit Authority, 375 F.3d 552, 561 (7th Cir. 2004). A
court does "not `sit as a super-personnel department that
reexamines an entity's business decisions.'" Id. See also Little
v. Illinois Dept. of Revenue, 369 F.3d 1007, 1012 (7th Cir.
2004) (stating that "even if the business decision was
ill-considered or unreasonable, provided that the decision maker
honestly believed the nondiscriminatory reason he gave for the
action, pretext does not exist.").
Thanongsinh has given various reasons as to why Defendants'
given reason should be deemed pretextual. Thanongsinh claims that
since he had already been performing the Group V position duties
it is not believable that he would fail the "hands-on" test which
dealt with the performance of the job. Thanongsinh also points to
testimony by Dugo that indicated that Thanongsinh had performed
tasks for the Group V position prior to his first "hands-on" test. We
disagree that such evidence is an indication of a pretext. Simply
because Thanongsinh had been performing duties for a Group V
position does not mean that he understood them or mean that he
could or should pass the particular test designed by the
District. Also, just because Thanongsinh may have performed and
understood the duties of a Group V position, does not
automatically mean that he would not make mistakes on the test.
To infer that he failed because of some unfair scoring would be
unreasonable and pure speculation.
Thanongsinh also claims that Javetz did not score Thanongsinh
in the same manner as he did for caucasian applicants.
Thanongsinh points to summaries of the percentages of pass rates
according to racial groups. However, such an assertion is pure
speculation on the part of Thanongsinh and is largely irrelevant.
The relevant question is not what racial group received what
scores. Rather the pertinent inquiry is whether all applicants
received fair scores based upon their performance on the tests.
The percentages of pass rates are not such that they would allow
for any reasonable inference that Javetz was biased.
Thanongsinh also argues that there was evidence that Javetz
held an animosity towards Thanongsinh. Thanongsinh points to
Dugo's testimony in support of this proposition. However, Dugo
merely stated that there was "agitation between Hanan and Linh"
during the test because Javetz became frustrated with
Thanongsinh. (Dugo dep. 26). Dugo stated that during the test "it
was a stressful time" and there was "tension in the air between Hanan and Lihn," (Dugo dep. 30-31),
but Dugo did not explain such comments or indicate that the
"stress" and "tension" was anything other than a natural
atmosphere that might develop during a test which is often a
stressful experience for a test taker and could be a stressful
experience for the administrator of the exam if the administrator
becomes frustrated or lacks patience. Dugo does not proceed
onward in this testimony to explain if the tension was because
Javetz disliked Thanongsinh because of his race. Dugo states
nothing during his testimony that would allow one to reasonably
infer that the "stress" and "tension" was due to racial animus by
Finally, Thanongsinh claims that when he confronted Javetz
about the score on the first "hands-on" test, Javetz told him
that he "should learn better English." (Ans. 13). Defendants
contend that Javetz's comment was intended as a helpful hint, but
Thanongsinh claims that it was intended as an insult to
Thanongsinh based on his race. It would be unreasonable to deem
such a comment in the abstract as an insult. Also, regardless,
the comment is not sufficient evidence to meet the pretext
requirement even when considered with the other evidence
mentioned above that was identified by Thanongsinh. Therefore,
even if Thanongsinh could establish a prima facie case he has
not pointed to sufficient evidence that the given reason was a
pretext. E. Individual and Official Capacity Claims Against Javetz
Defendants move for summary judgment on the Title VII
individual capacity and official capacity claims against Javetz.
Thanongsinh concedes that Defendants are entitled to summary
judgment on the individual capacity claim. (Ans. 14, n. 5). In
regards to the Title VII official capacity claim, such a claim is
synonymous with a claim against the public entity itself since
Javetz was employed by the District. See Gossmeyer v. McDonald
128 F.3d 481, *494 (7th Cir. 1997) (stating that "[a]n
official capacity claim against an individual defendant
constitutes a claim against the government entity itself.").
Since the District is named as a Defendant, the claim against
Javetz in his official capacity is redundant. Therefore, we grant
Defendants' motion for summary judgment on the Title VII
individual capacity claim and Title VII official capacity claim
against Javetz.
II. Section 1981 Claims
Defendants move for summary judgment on the Section 1981 claims
against the District and against Javetz in both his official and
individual capacities.
A. Claim against District and Official Capacity Claim against
For a Section 1981 claim against a government body, a plaintiff
is required to "show that the violation of h[er] `right to make
contracts' protected by § 1981 was caused by a custom or policy
within the meaning of Monell and subsequent cases." Looper v. Maintenance Serv., Inc. v. City of Indianapolis,
197 F.3d 908, 913 (7th Cir. 1999); see also Smith v. Chicago
School Reform Bd. of Trustees, 165 F.3d 1142, 1148-49 (7th
Cir. 1999) (stating that "recovery against a governmental body
under § 1981 may not be based on respondeat superior" and that
"[t]he plaintiff must show that the body's official policy or
custom was discriminatory."). In regards to the Section 1981
claim against Javetz in his official capacity, such a claim is
synonymous with a claim against the public entity itself since
Javetz was employed by the District. Gossmeyer,
128 F.3d at 494. In the instant action, Thanongsinh has failed to allege or
point to evidence of a policy or practice by the District that is
a basis for the alleged discrimination against him in violation
of Section 1981. Looper, 197 F.3d at 913. Therefore,
Thanongsinh has failed to establish that either the District or
Javetz, in his official capacity, discriminated against
Thanongsinh in violation of Section 1981. Gossmeyer,
128 F.3d at 494.
B. Individual Capacity Claim against Javetz
In order to establish a claim under Section 1981, a plaintiff
"must show that (1) [he] [is] a member? of a racial minority;
(2) the defendant had an intent to discriminate on the basis of
race; and (3) the discrimination concerned one or more of the
activities enumerated in the statute (i.e., the making and
enforcing of a contract)." Morris v. Office Max, Inc.
89 F.3d 411, 413 (7th Cir. 1996). Thanongsinh has not pointed to any
discrimination other than the alleged biased scoring by Javetz on the first "hands-on" test. Accordingly, Thanongsinh has not
pointed to sufficient evidence to prove that Javetz intended to
discriminate against Thanongsinh because of his race. Morris,
89 F.3d at 413. Thanongsinh attempts to support his Section 1981
claim against Javetz by arguing that Javetz was a policy maker at
the District because he helped design the certification process.
However, even if that were true, it is of no moment in the
instant action because, as explained above, Thanongsinh has not
challenged the content of the District's certification process.
Further, Thanongsinh has failed to point to sufficient evidence
that shows that Javetz's alleged conduct towards Thanongsinh
"concerned" the "making and enforcing of a contract." Morris,
89 F.3d at 413. Therefore, we grant the District's motion for
summary judgment on the Section 1981 claim against Javetz in his
individual capacity.
Based on the foregoing anglais, we grant Defendants' motion for
summary judgment in its entirety.
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Olympus SP-820UZ
Mark Peters : August 23th 2012 - 19:25 CET
Olympus SP-820UZ zoom camera :
Olympus is proud to announce the introduction of the Olympus Stylus SP-820UZ, powered by AA batteries and boasts a high-sensitivity CMOS sensor, iHS Technology from a digital SLR image processing engine, along with a 22.4mm wide-angle to 896mm telephoto optical 40x zoom lens. The Olympus digital compact cameras are equipped with image processing technology in the form of iHS Technology, enabling high-sensitivity, low noise, and a fast autofocus. With Super Resolution zoom, and iAuto, which detects subjects and scenes from a maximum of 29 patterns, users can easily capture pictures with this Olympus camera, just as they appear to the eye.
Olympus SP-820UZ
The Olympus Stylus SP-820UZ zoom camera is equipped with a 22.4mm wide-angle to 896mm super-telephoto, high-magnification zoom lens, enabling an extremely wide range of shooting possibilities. The power of a large and heavy, sized super-telephoto lens is available on the compact body of the Olympus SP-820UZ, making it the perfect companion for keeping baggage light on a trip. This is an "all-in-one" Super zoom camera for easily taking high-grade pictures on the go.
Super Telephoto HD movie recording
With CMOS shift-type image stabilization and Dual IS for high-sensitivity shooting, camera shake is effectively reduced during telephoto shooting. With 22.4mm wide-angle shooting, landscape photos and large group photos are a cinch. With just this one camera, users can enjoy shooting various scenes at just the right angles. Simply pressing the button on the back of the camera allows super telephoto HD movie shooting, and Magic Filter also adds to the enjoyment of shooting movies on a digital camera.
Olympus Stylus SP-820UZ with 40x optical zoom
With the great 40x optical zoom lens, users of this Olympus camera can capture intense and up-close photos of far away subjects with ease. The Olympus SP-820UZ zoom camera can capture the expressions on children's faces at school games and plays, and the action of sport athletes at sporting events, with a level of detail not visible to the naked eye. With Super Resolution zoom, users can not only zoom up to 80x with virtually no image degradation, but in combination with the digital zoom it is even possible to photograph craters on the moon at 160x.
Olympus SP-820UZ price & availability
The Olympus SP-820UZ zoom camera will be available from late October 2012 and carries a suggested retail price of £280,- / €300,- / $299 USD. Prices may vary from country to country. Availability of colors and optional Olympus accessories may differ depending on the country. Please check the Olympus Imaging website in your country for more details and information.
Olympus SP-820UZ review
As soon as we receive a Olympus SP-820UZ test sample, we will publish a sample photo gallery with high resolution pictures, followed by an in-depth Olympus Stylus SP-820UZ review. In the mean time you can read our
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Hambo - New Puzzle Shooter Videogame For Android and iOS
Bacon-ize Your Enemies and Save Bacon Your Best Friend
Arm yourself as Hambo and save your friend Bacon from pesky pig swine. Hambo plays exactly like the first Angry Birds videogame. You aim your projectiles at hordes of enemy pigs to complete levels and gain coins. Conquering levels with less bullets and less time earns you a gold medal and bonus coins which can be used to redeem new costumes, items, or to bypass those hard to complete levels.
Aim With Your Left Thumb and Shoot With Your Right Thumb
Hambo is packed with weaponry made for sizzling those pigs into cans of spam, boars head, bacon strips, ribs, and other delectables. Miniclip combines humor and fun together so perfectly that you'll want all your bullets from Hambo to turn all his enemy piggies into bacon strips. An occasional hamburger will pop out here and there, depending on your aim and angle.
Continuous Action and Smooth Controls Boosts The Replay Factor
Every level is different and unique, some easy, while others might be too difficult to complete, even for the average gamer. To maximize the fun of Hambo, gamers start with a pistol and later can unlock an uzi capable of firing multiple bullets and each unlocked weapon, there's fire arrows too, adds to the fun factor of this game. The best part is trying to get that gold medal after completing each level.
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It's the most wonderful time of the year – time to vote for your favorite cameras and lenses in our year-end Readers' Choice Awards. First up: high-end compact cameras. Vote now
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4 years, 2 months
Medium | Male
Hello there, I''m sure you''ve reviewed my resume and application. I''m an expert at being a dog. In fact, in my old position I was paw-moted to top dog. It''s technical title, but trust me it''s important. I''m ready to start a new career with your family. See I need to learn a few manners to boost my resume, but I''m sure you''re the home to do it with. Whatya say? Are you ready to adopt?


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Best Selling Mineral Powder Dryer - Chinaprice: contact company for price
composed of heat source, scatter device, belt rotary drum, belt
discharging machine, induced draft fan, discharger and power
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Company Contact:
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- Address: Kexue Revenue, High and New Technology Industrial , Zhengzhou, China
- Email:
- Website: http://www.fte-china.com/
Published date: December 18, 2014 -
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Quartz Sand Dryer Applications: Quartz sand dryer, also called as quartz sand rotary dryer, is mainly used to dry materials with a certain humidity and granularity. It can dry all kinds of quartz sand, ore powder, limestone, coal powder, clay, yellow...
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Clay dryer is necessary equipment in dry process production of cement plant. Separate drying of clay has also become an indispensible process in modern industry. Because clay contains high moisture content, hence, clay dryer machine becomes popular i...
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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
November 10, 2011
IN THE MATTER OF JOSE A. FUENTES,PETITIONER-APPELLANT,v.BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,RESPONDENT-RESPONDENT.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered June 25, 2010 in a proceeding pursuant to CPLR article 78.
Decided on November 10, 2011
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
The judgment denied the petition.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination after a Tier III hearing that he violated certain inmate rules. We note at the outset that, as respondent correctly contends, petitioner withdrew the substantial evidence issue when he appeared in Supreme Court, and the court thus was not required to transfer the proceeding to this Court to decide that issue (see CPLR 7804 [g]), nor do we address it. Petitioner failed to exhaust his administrative remedies with respect to his sole remaining contention, i.e., that his due process rights were violated when he was penalized for attempting to mail certain documents to his home, having failed to raise that contention at the Tier III hearing, and this Court has no discretionary authority to reach that contention (see Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834).
Entered: November 10, 2011
Patricia L. Morgan Clerk of the Court
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Score +5
Deal DetailsLast Edited by mlacey3 October 6, 2016 at 03:05 PM
iphone 7 plus screen protector
Save $6.99 when you purchase 1 or more Oct. Deal Promo offered by UltraProof. Here's how (restrictions apply)
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