Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—7th Cir.: Security officer cannot link DHS suitability finding to age bias, (Jul 15, 2026)

By George Basharis, J.D.

An independent review of the officer’s conduct supported the unfavorable suitability determination despite age-related remarks by an official who did not make the decision.

A former federal contract security officer could not link his unfavorable suitability determination to age bias because the official responsible for the decision did not know his age, and an independent investigation tied the determination to his alleged violations of orders and detention procedures during an incident with an unruly customer. Although another official allegedly remarked that some officers were “too old,” the evidence did not connect those remarks to the outcome, the U.S. Court of Appeals for the Seventh Circuit concluded. Affirming summary judgment for the Department of Homeland Security (DHS), the court found that the officer failed to show that he met DHS’s legitimate expectations, identify a similarly situated younger employee who received better treatment, or otherwise connect the decision to his age (McCoy v. Mullin, No. 25-1533 (7th Cir. July 14, 2026)).

Customer incident. Paragon Systems employed the officer as a protective services officer and assigned him to a Social Security field office in Chicago under a contract with the Federal Protective Service, a component of DHS. When an unruly customer refused to leave, the officer and a coworker escorted her to an empty interview room. The coworker stepped out to call police, while the officer photographed the customer with his cellphone. A Federal Protective Service inspector who arrived with police reported that the officer had violated orders by leaving the customer unrestrained and taking the photographs. The parties disputed whether the officer cooperated with police after they arrived.

Termination. Following an investigation, Paragon terminated the officer for failing to follow orders and detention procedures. The company cited his failure to restrain the customer, his use of a personal device to photograph her, his failure to cooperate with the investigation, and interview responses that corroborated reports of his conduct. The officer pursued a union grievance, resulting in a settlement under which Paragon agreed to rescind the termination if DHS found him suitable to continue working under one of its contracts.

Suitability review. A Federal Protective Service personnel security specialist reviewed the officer’s application for a favorable suitability determination that would allow him to return to work on a DHS contract. After obtaining additional information from the officer and Paragon, the specialist recommended an unfavorable determination. The Security Operations Branch chief agreed and found the officer unfit to work under the contract. The officer did not dispute that the branch chief was unaware of his age when she made the decision.

The Seventh Circuit assumed without deciding that DHS could be treated as the officer’s employer. To establish a prima facie age discrimination claim against the department, the officer had to show that he was meeting its legitimate expectations. He focused instead on Paragon’s expectations. But the evidence indicated that he had not met those expectations, and he offered no evidence that he had satisfied DHS’s.

The officer also maintained that his termination by Paragon and DHS’s unfavorable suitability determination were separate adverse employment actions. The Seventh Circuit considered only the suitability determination because Paragon, not DHS, was responsible for the termination. It assumed without deciding that the unfavorable determination qualified as an adverse employment action.

Comparator evidence. Even with that assumption, the officer still had to show that DHS treated a similarly situated, substantially younger employee more favorably. He identified his coworker as a comparator for the first time at summary judgment. The district court declined to consider her because he had not disclosed during discovery that he intended to rely on her to support his discrimination claim. DHS had repeatedly asked him during his deposition and in written discovery to identify potential comparators, but he provided none. Allowing him to rely on the coworker after discovery closed would have required reopening fact discovery, the Seventh Circuit concluded.

However, even if the district court had considered the coworker, the officer failed to show that they were similarly situated. Beyond describing her as younger, he did not establish her age or show that she had committed comparable protocol violations. Consequently, the evidence did not support an inference that DHS treated a substantially younger employee more favorably under similar circumstances.

Age remarks. The officer also relied on remarks by the Federal Protective Service inspector who reported the customer incident. Evidence indicated that the inspector had said some protective services officers were “too old” and not physically fit for the job. Those remarks did not support a triable age discrimination claim because the inspector did not participate in the suitability decision, and neither the officer’s age nor his physical capabilities figured in the reasons for the unfavorable determination.

The officer likewise could not establish liability under a “cat’s paw” theory, which may apply when a biased employee influences an otherwise neutral decision-maker. He did not show that the inspector harbored age-based animus against him or that the inspector’s input proximately caused the unfavorable decision. The timing of the age-related comments was also unclear.

Although the officer asserted that the inspector had exaggerated or fabricated complaints about others, he did not connect any alleged misrepresentations to age bias. Moreover, the branch chief relied on a personnel specialist’s recommendation following an independent investigation that considered explanations from both Paragon and the officer. Taken as a whole, the evidence showed that DHS based its suitability determination on the officer’s conduct during the customer incident, not his age, the Seventh Circuit concluded.

The case is No. 25-1533.

Judge: Kirsch, T.

Attorneys: Christina Abraham (Abraham Law & Consulting) for Derrick McCoy. Sarah Terman, Office of the U.S. Attorney, for Markwayne Mullin.

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