ADEA Claims Challenging Federal Contract “Suitability” Decisions Require Age-Causation Evidence; Undisclosed Comparators and Non-Decisionmaker Remarks (Even with Alleged Cat’s Paw) Are Insufficient Where an Independent Review Breaks the Chain

1. Introduction

This appeal arose after Derrick McCoy, a Protective Services Officer (PSO) employed by Paragon Systems, was terminated following an incident with an unruly customer at a Chicago Social Security field office. Paragon provided security services under a contract with the Federal Protective Service (FPS), a component of the Department of Homeland Security (DHS).

Through a union grievance settlement, Paragon agreed to rescind McCoy’s termination only if DHS issued a favorable “suitability determination” allowing him to work on a DHS contract. DHS issued an unfavorable suitability determination after reviewing the incident and related materials. McCoy sued DHS—not Paragon—alleging age discrimination under the Age Discrimination in Employment Act (ADEA), contending the suitability process was biased and procedurally flawed and that age-related remarks by an FPS inspector tainted the outcome.

The key issues on appeal were whether McCoy produced sufficient evidence for a reasonable jury to find that DHS’s unfavorable suitability determination was because of age, including under (i) the McDonnell Douglas burden-shifting framework and (ii) the holistic evidentiary approach articulated in Ortiz, and whether McCoy could rely on a comparator first identified at summary judgment.

2. Summary of the Opinion

The Seventh Circuit affirmed summary judgment for DHS. Even assuming (without deciding) that DHS could be treated as McCoy’s employer for ADEA purposes and assuming (without deciding) that an unfavorable suitability determination is an adverse employment action, the record lacked evidence that age caused DHS’s decision.

McCoy failed to establish essential elements of a prima facie case under McDonnell Douglas, including that he was meeting DHS’s legitimate expectations and that a similarly situated, substantially younger employee was treated more favorably. The court also held the district court did not abuse its discretion by refusing to consider a newly identified comparator (PSO Haywood) first raised at summary judgment, given Rule 26 disclosure obligations and Rule 37’s sanction for nondisclosure.

Under the Ortiz holistic view, the only age-related evidence was “stray remarks” by an FPS inspector who was not the suitability decisionmaker; the ultimate decisionmaker did not know McCoy’s age. Any “cat’s paw” theory also failed because McCoy did not show discriminatory animus and proximate causation, and because the decision followed an independent review and recommendation.

3. Analysis

3.1. Precedents Cited

• McDaniel v. Progress Rail Locomotive, Inc.: Used for core ADEA principles (protected class) and for cat’s paw requirements in the ADEA context—showing discriminatory animus and that the biased input was a proximate cause. The court relied on McDaniel to reject liability absent evidence that age drove the adverse action, and to frame why Taylor’s remarks did not translate into causation.
• Sinha v. Bradley Univ.: Cited for de novo review of summary judgment and for the proposition that an independent investigation/decision can defeat cat’s paw causation when the final decision is not “wholly dependent” on the allegedly biased narrative. The court analogized DHS’s process—Campbell’s review and Martinez’s decision—to the kind of independent assessment that breaks the causal chain.
• Whitaker v. Milwaukee County: Provided the “significant control” test for joint-employer status. While the panel expressed “doubts,” it did not decide the issue because DHS conceded a factual dispute for summary-judgment purposes, allowing the court to resolve the case on causation and proof.
• Murphy v. Caterpillar Inc.: Supplied the modern articulation of how an ADEA plaintiff may prove discrimination and the prima facie elements under McDonnell Douglas. The court used Murphy to frame why McCoy’s proof failed on elements two (meeting legitimate expectations) and four (similarly situated younger comparators).
• Ortiz v. Werner Enters., Inc.: Reinforced that evidence must be assessed “holistically,” not through rigid categories of “direct” and “indirect.” The panel applied Ortiz to conclude that, even considering all evidence together, no reasonable factfinder could infer that age caused DHS’s suitability determination.
• Igasaki v. Ill. Dep't of Fin. & Pro. Regul.: Cited for the governing question at summary judgment (enough evidence for a jury to find in plaintiff’s favor) and for the principle that comparator similarity is typically for the factfinder—unless the plaintiff has no evidence to meet his burden. Here, even if Haywood were considered, McCoy offered no evidence of true comparability.
• McDonnell Douglas Corp. v. Green: The foundational burden-shifting framework used to test circumstantial proof of discrimination. The court treated it as one permissible mode of proof, but found McCoy’s claim failed even within that structure.
• Barton v. Zimmer, Inc.: Cited to confirm termination is an adverse employment action; the court used it to separate Paragon’s termination (not attributable to DHS in this suit) from DHS’s suitability decision (the only potentially relevant adverse action by DHS).
• Dynegy Mktg. & Trade v. Multiut Corp.: Supported the proposition that a district court has “broad discretion” to determine whether Rule 26 nondisclosure is substantially justified or harmless, guiding review of the district court’s decision to exclude a late comparator.
• King v. Ford Motor Co.: Provided an analogy for upholding exclusion of late-disclosed evidence after discovery closes—bolstering the conclusion that refusing the late comparator was not an abuse of discretion.
• Arnold v. United Airlines, Inc.: Supplied the standard for “similarly situated” comparators—same supervisor/standards and similar conduct without distinguishing circumstances. The court invoked this to show McCoy did not establish Haywood’s similarity.
• Mach v. Will Cnty. Sheriff: Supported the principle that “stray remarks” not made by the decisionmaker usually do not create an inference of discrimination. The court used Mach to discount Taylor’s “too old” comments as insufficient to show DHS’s decision was age-based.

3.2. Legal Reasoning

(a) Threshold employer question bracketed, not resolved. McCoy sued DHS despite being employed by Paragon. The district court had denied a motion to dismiss, and DHS later conceded a factual dispute about joint employment. The Seventh Circuit therefore assumed—without deciding—that DHS could be treated as McCoy’s employer, focusing instead on whether McCoy produced evidence of age discrimination tied to DHS’s suitability decision.

(b) Identifying the relevant adverse action. The court distinguished Paragon’s termination (an adverse action, but taken by Paragon) from DHS’s suitability determination (the only DHS action). The panel assumed, without deciding, that the suitability determination could qualify as an adverse employment action for ADEA purposes, then assessed causation.

(c) Failure under the McDonnell Douglas framework.

• Legitimate expectations (as to DHS). McCoy argued he met Paragon’s expectations, but the claim targeted DHS. The court held McCoy offered no evidence that he met DHS’s legitimate expectations for personnel working on its contracts, particularly given DHS based unsuitability on conduct during the incident.
• Comparator evidence excluded and, in any event, insufficient. McCoy first identified PSO Haywood as a comparator at summary judgment. The district court excluded that comparator under Rules 26 and 37, and the Seventh Circuit found no abuse of discretion: McCoy had been asked repeatedly to identify comparators, failed to do so, and the late disclosure would have required reopening discovery. Even if Haywood were considered, the court found no evidentiary basis that she was “similarly situated” under Arnold v. United Airlines, Inc.—no showing of similar protocol violations or equivalent conduct.

(d) Failure under Ortiz’s holistic assessment. The court asked the core causation question: would the evidence permit a reasonable factfinder to conclude age caused the adverse action? It would not. The ultimate decisionmaker (Martinez) was unaware of McCoy’s age. The only age-related evidence consisted of Taylor’s remarks about some PSOs being “too old,” but Taylor was not the decisionmaker and the remarks did not appear in the stated reasons for unsuitability.

(e) Cat’s paw theory rejected due to lack of animus proof and broken causation. The panel explained that, to proceed on a cat’s paw theory, McCoy had to show Taylor harbored discriminatory animus against him and that Taylor’s input proximately caused the adverse action. The court found: (i) the timing and linkage of Taylor’s comments to McCoy’s case were unclear; (ii) alleged exaggerations/fabrications were not connected to age-based animus; and (iii) Martinez’s decision followed Campbell’s independent review incorporating both Paragon’s and McCoy’s accounts, which under Sinha v. Bradley Univ. undermined any claim that the decision was driven by a biased subordinate’s narrative.

3.3. Impact

The decision is significant for ADEA plaintiffs challenging government “suitability” determinations in contractor settings and for litigants attempting to attribute contractor employment consequences to the government.

• Evidence must connect age to the specific decision at issue. Alleged procedural flaws or unfairness in an investigation do not substitute for proof that age caused the outcome—especially where the decisionmaker did not know the plaintiff’s age.
• Stray remarks remain weak proof absent decisionmaker involvement. Age-related comments by a non-decisionmaker, without evidence they influenced the decision, will rarely survive summary judgment.
• Independent review can defeat cat’s paw theories. Where the final action rests on an independent assessment that considers multiple sources (including the employee’s account), plaintiffs face a higher hurdle to show a biased actor’s input proximately caused the adverse outcome.
• Comparator strategy must be disclosed early. The ruling underscores the practical importance of Rule 26 disclosures: late-identified comparators risk exclusion under Rule 37, and that exclusion can be case-dispositive in discrimination litigation.
• Government–contractor employment disputes. Although the panel did not decide joint-employer status, it flagged “doubts,” signaling continued skepticism about treating contracting agencies as employers absent “significant control” under Whitaker v. Milwaukee County.

4. Complex Concepts Simplified

• Suitability determination: An agency’s judgment about whether a person is fit to work on its contracts (often focused on conduct, reliability, compliance with protocol). It is not necessarily the same as a hiring/firing decision by the contractor, but it can determine whether the contractor may place the worker on the contract.
• Joint employer: A legal theory that treats an entity that is not the formal employer as an employer if it exercises “significant control” over the worker’s employment. Here, the court assumed the point without deciding it.
• McDonnell Douglas framework: A method for proving discrimination with circumstantial evidence, typically requiring (among other elements) proof of satisfactory performance and a younger, similarly situated comparator treated better.
• Comparator: Another employee used as a benchmark to infer discrimination—typically someone similarly situated who engaged in similar conduct but received more favorable treatment.
• Rule 26 / Rule 37 (discovery consequences): Rule 26 requires timely disclosure of witnesses/evidence a party may use; Rule 37 can bar using undisclosed information at summary judgment unless the failure was justified or harmless.
• Stray remarks: Biased comments that are remote from the decision, made by someone not responsible for it, or not tied to the challenged action; usually insufficient to prove discrimination by themselves.
• Cat’s paw liability: A theory where a biased subordinate influences an unbiased decisionmaker. The plaintiff must show discriminatory animus and that the biased input proximately caused the adverse action—often defeated by an independent investigation.

5. Conclusion

McCoy v. Mullin reaffirms a stringent causation-focused approach to ADEA claims: a plaintiff must offer evidence that age actually drove the challenged decision. The Seventh Circuit held that (i) a late-disclosed comparator may be excluded under Rules 26 and 37, (ii) non-decisionmaker “too old” remarks are generally insufficient to prove discrimination, and (iii) cat’s paw liability fails where the final decision follows an independent review and the plaintiff cannot show animus and proximate causation. In contractor–agency contexts, the opinion also underscores the practical (and potentially doctrinal) difficulty of translating contractor discipline into agency liability absent clear proof tying the agency’s decision to prohibited age bias.