Background
Derrick McCoy worked as a Protective Services Officer for Paragon Systems, which contracted with the Department of Homeland Security’s Federal Protective Service to provide security at federal facilities, including a Social Security field office in Chicago. During an incident with an unruly customer, McCoy failed to restrain the customer with handcuffs, took photographs using his personal phone, and allegedly failed to cooperate with police. FPS Inspector Jamie Taylor reported these protocol violations to Paragon, which subsequently terminated McCoy.
Following McCoy’s termination, he pursued union grievance procedures that resulted in a settlement: Paragon agreed to rescind his termination if McCoy could obtain a favorable suitability determination from DHS. However, after reviewing the incident circumstances, DHS denied McCoy’s suitability determination through its independent investigation and recommendation process. McCoy was 40 years or older at the time of the adverse determination.
McCoy sued DHS alleging age discrimination under the Age Discrimination in Employment Act of 1967, claiming DHS’s unfavorable suitability determination was motivated by his age. The district court granted summary judgment for DHS, finding McCoy could not establish a prima facie case of age discrimination. McCoy appealed.
The Court’s Holding
The Seventh Circuit affirmed summary judgment for DHS, holding that McCoy failed to make out a prima facie case of age discrimination under the McDonnell Douglas burden-shifting framework. Although McCoy satisfied the first element (being over 40 years old) and was an ADEA-protected class member, his claim failed on the second and fourth elements. McCoy presented no evidence that he met DHS’s legitimate expectations—only Paragon’s—and he could not identify a similarly situated, substantially younger employee who received more favorable treatment.
The court addressed McCoy’s late disclosure of PSO Haywood as a comparator, which McCoy first identified at summary judgment despite DHS’s repeated requests for potential comparators during discovery. The district court properly exercised its discretion in declining to consider Haywood as a comparator without reopening discovery. Even assuming Haywood should have been considered, McCoy failed to establish they were similarly situated, having provided no explanation of the parallels beyond her youth and offering no evidence she engaged in similar protocol violations.
Under the Ortiz holistic approach, the court found no evidence that age caused DHS’s suitability determination. The stray remarks by Inspector Taylor about some PSOs being “too old” to do the job were insufficient to create an inference of discrimination because Taylor was not the decision-maker. McCoy’s cat’s paw theory also failed because DHS’s decision-maker, Martinez, independently reviewed the evidence and was not wholly dependent on Taylor’s narrative.
Key Takeaways
- Stray derogatory remarks about age by a non-decision-maker are typically insufficient to create discrimination inferences without evidence the decision-maker relied on them.
- Parties must timely disclose comparators during discovery; presenting them for the first time at summary judgment may be barred absent substantial justification or harmlessness.
- Under McDonnell Douglas, a plaintiff suing a potential joint employer must show they met that employer’s legitimate expectations, not merely their actual employer’s expectations.
- Even where biased input exists in the chain of command, an independent investigation and decision by a separate official can insulate the final determination from cat’s paw liability.
Why It Matters
This decision reinforces that age discrimination claims require concrete evidence connecting age to the adverse employment action, not circumstantial hints or isolated remarks. The ruling clarifies that in contractor-government relationships where suitability determinations occur, plaintiffs must establish a direct link between the government agency’s decision-making process and alleged age bias. The court’s treatment of the cat’s paw theory—requiring evidence the decision-maker was not wholly dependent on biased input—provides important guidance for government contractors and federal agencies handling personnel determinations.
The case also emphasizes procedural discipline in discovery. McCoy’s late identification of a comparator, despite repeated requests from opposing counsel, cost him a potentially significant piece of evidence at summary judgment. For employment discrimination plaintiffs, this underscores the importance of early and complete disclosure of comparative evidence and the risks of springing arguments at the eleventh hour.