7th Circuit upholds dismissal of age bias claim against DHS, finding no evidence the agency's…

Record source: CourtListener

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 25-1533 DERRICK MCCOY, Plaintiff-Appellant, v. MARKWAYNE MULLIN, Secretary of Homeland Security, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 22 C 2690 — Daniel P. McLaughlin, Magistrate Judge. ____________________ ARGUED FEBRUARY 10, 2026 — DECIDED JULY 14, 2026 ____________________ Before EASTERBROOK, SCUDDER, and KIRSCH, Circuit Judges. KIRSCH, Circuit Judge. Derrick McCoy worked as a Protec- tive Services Officer at Paragon Systems until he was termi- nated after he was involved in an incident with an unruly cus- tomer at a social security office. After McCoy was terminated, Paragon agreed to reinstate him only if the Department of Homeland Security—which contracted with Paragon to pro- vide security services at the social security office—deter- 2 No. 25-1533 mined that McCoy was suitable to continue to work on a DHS contract. But after reviewing the circumstances of his termi- nation, DHS provided McCoy with an unfavorable suitability determination. McCoy sued DHS, alleging that the decision was unlawful age discrimination. The district court granted DHS’s motion for summary judgment, concluding that McCoy could not make out his prima facie case of age dis- crimination. Because the record contains no evidence that DHS’s suitability determination was made because of McCoy’s age, we affirm. I Derrick McCoy was employed as a Protective Services Of- ficer (PSO) by Paragon Systems until his termination. Paragon contracted with the Federal Protective Service (FPS)—part of the Department of Homeland Security—to provide security services at various federal facilities. One of these facilities was a social security field office in Chicago. McCoy was stationed at that field office when a customer became unruly. After the customer refused to leave, McCoy and PSO Lattrice Haywood escorted the customer to an empty interview room. While Haywood stepped out of the room to call the police, McCoy took photos of the customer. The parties dispute whether McCoy cooperated with the po- lice once they arrived at the scene. FPS Inspector Jamie Taylor, who had arrived at the scene at the same time as the police, reported to his commander that McCoy failed to use hand- cuffs to restrain the unruly customer while the customer was in the interview room by herself and used his cellphone to take photos of the customer, violating orders. Taylor’s com- mander subsequently reported the incident to Paragon. There’s evidence that Taylor had previously made derogatory No. 25-1533 3 comments, including that some PSOs were “too old” and not in shape to do the job. McCoy was suspended pending Paragon’s investigation into the incident. After determining that McCoy had not properly followed orders and detainment procedures, Para- gon terminated McCoy. Paragon noted that McCoy initially left the unruly customer unhandcuffed, took pictures of the individual with his personal device, failed to cooperate with an official investigation, and that his interview responses cor- roborated the reports regarding his behavior. After his termination, McCoy engaged in union grievance procedures with Paragon. These proceedings led to a settle- ment in which Paragon agreed to rescind McCoy’s termina- tion if he could obtain a favorable suitability determination from DHS. Chris Campbell, a Personnel Security Specialist at FPS, re- viewed McCoy’s application, and after receiving more infor- mation from McCoy and Paragon about the termination, rec- ommended an unfavorable suitability determination. The fi- nal suitability determination was made by Dina Martinez, the Security Operations Branch Chief at FPS. Martinez agreed with Campbell’s recommendation and concluded that McCoy was unfit to work on a DHS contract. McCoy does not dispute that Martinez was unaware of McCoy’s age at the time of the decision. McCoy brought this case against DHS alleging (as relevant here) that he was discriminated against on the basis of his age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et. seq. The ADEA protects workers 40 years of age and older from age-based employment discrimi- 4 No. 25-1533 nation. McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 367 (7th Cir. 2019). McCoy did not name Paragon as a defend- ant. The district court granted DHS’s motion for summary judgment, concluding that no reasonable jury could conclude that McCoy’s age was the reason for the adverse employment action, and McCoy appealed. II We review a grant of summary judgment de novo. Sinha v. Bradley Univ., 995 F.3d 568, 573 (7th Cir. 2021). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We “consider all of the evidence in the record in the light most favorable to the non-moving party, and we draw all reasonable inferences from that evidence in that party’s favor.” McDaniel, 940 F.3d at 367 (citation modified). McCoy argues that DHS discriminated against him when it engaged in what he says was a biased and procedurally flawed investigation that led to an unfavorable suitability de- termination. But McCoy has not brought a claim against Para- gon and seems to assume that DHS is his employer. We note at the outset that it’s unclear whether McCoy was employed by DHS for the purposes of his ADEA claim. DHS moved to dismiss McCoy’s claim below on this basis, but the district court denied the motion, concluding that “DHS had just as much authority as Paragon, if not more, when it came to rein- stating McCoy.” And DHS later conceded for the purpose of summary judgment that there was a dispute of fact concern- ing whether it could be held liable as a joint employer. We have noted that “an entity other than the actual employer may be considered a ‘joint employer’ only if it exerted significant No. 25-1533 5 control over the employee.” Whitaker v. Milwaukee County, 772 F.3d 802, 810 (7th Cir. 2014) (citation modified). Given DHS’s concession, we are not being called upon to resolve this issue. Although we have doubts, even if DHS was McCoy’s em- ployer, McCoy’s claim fails. We therefore can assume without deciding that DHS was McCoy’s employer for the purpose of his claim. An ADEA plaintiff may prove discrimination “by intro- ducing direct or circumstantial evidence that he suffered an adverse employment action because of his age.” Murphy v. Caterpillar Inc., 140 F.4th 900, 911 (7th Cir. 2025). We consider the evidence holistically, Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016), and “what matters is whether a plain- tiff presented enough evidence to allow the jury to find in his favor.” Igasaki v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 957–58 (7th Cir. 2021) (citation modified). One way to do this is under the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McCoy presents his claim under the McDonnell Douglas burden-shifting approach but separately argues that Ortiz supports his claim. Under the McDonnell Douglas framework, a plaintiff must demonstrate that (1) he was over 40 years of age; (2) he was meeting his employer’s legitimate expectations; (3) he suf- fered an adverse employment action; and (4) similar

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