Labor & Employment Law Daily Wrap Up, DISCRIMINATION—N.D. Ill.: Poor interview performance, not DEI policy, doomed white male employee’s bias claims, (Aug 18, 2026)

By Kathleen Kapusta, J.D.

“Ames reaffirms that everyone is held to the same standard when it comes to employment decisions.”

After acknowledging that the “days of favoring any group over another group based on race—even in the name of diversity—appear to be numbered, if not over,” a federal court in Illinois nonetheless granted summary judgment against the Title VII race and sex discrimination claims asserted by a Norfolk Southern Police special agent who claimed he was passed over for promotion because he is a white male. There was simply no evidence, said the court, that the interviewers for two open supervisory special agent positions favored a Black woman and a mixed-race man over the employee based on their race or sex and no evidence they considered the company’s DEI policy when making their recommendations. Nor was the employee entitled to a trial on his retaliation claim (Hopkins v. Norfolk Southern Corp., No. 22-cv-227 (N.D. Ill. Aug. 14, 2026)).

The employee joined the Norfolk Southern Police (NSP) as a special agent in 2016 and transferred to the canine unit in 2018. When the company posted job openings for two supervisory special agent positions in Chicago, he submitted a resume but did not provide a cover letter. Norfolk preferred applicants with six to 10 years of experience but required at least three to five years. It also preferred applicants with a bachelor’s degree, especially in the areas of social sciences and business, but a college degree was not a necessity.

Successful candidates. The employee was one of 17 applicants selected for an interview by a panel of two white males, a Black male, and a Hispanic male. The panel recommended a Black woman and a mixed-race man for the two positions. Both of the preferred candidates submitted cover letters with their resumes and both did well on their interviews. The woman had a bachelor’s degree in criminal justice and was part of NSP’s Special Operations Response Team.

Although the male candidate did not have a college degree, he was working on one, had joined NSP as a special agent in 2010, and had also worked as a member of its Special Operations Response Team. Both candidates were ultimately selected for the positions after the panel made recommendations to the superintendent who in turn made recommendations to the NSP director, who forwarded the names to HR.

Absolutely nothing. For his part, the employee admitted he did “absolutely nothing” for the interview and one of the interviewers felt he “used his interview time for almost a grievance... he had complaints and stuff that he was unsatisfied with within the department.” After his non-selection, the employee complained of race and sex discrimination to Norfolk’s Equal Opportunity Office, which investigated and found no basis for his complaint. The EEO investigator testified, however, that the NSP director told her the female candidate “was qualified” and “aligned with the company’s DEI, diversity, equity, and inclusion initiative.”

After he filed his complaint, the employee claimed the superintendent and director verbally attacked and criticized him. He also claimed that his new supervisor—the mixed-race candidate for the posted position—refused to allow him to reschedule a flexible holiday. He filed a second EEO complaint alleging retaliation.

Out of service. Around that same time, the company learned the employee owned and operated his own towing company. Norfolk took him out of service and asked him to sign a required off-duty employment form. When he refused, he was told he would remain out of service and would be investigated for insubordination. He ultimately turned in his equipment and sued for race and sex discrimination and retaliation in violation of Title VII.

Race discrimination. Addressing first the employee’s race discrimination claim, the court noted that while he was alleging reverse discrimination, the Supreme Court, in its 2025 Ames v. Ohio Department of Youth Services decision, held that “proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group.” Turning to the employee’s prima facie case, the court found he failed to show he was treated less favorably than a non-white similarly situated employee.

Although he pointed to the selectees, and specifically to the female selectee, he was not similarly situated to her. She had a bachelor’s degree and in a preferred subject, had completed communications training, had the requisite work experience, and was a member of NSP’s Special Operations Response Team. Moreover, said the court, he “was a train wreck in the interview” as he admittedly did nothing to prepare for it and one interviewer stated that the employee could not see the “big picture.” “Simply put,” said the court, “[he] bombed the interview, and [the female candidate] didn’t. So they were not similarly situated.”

Nor was he able to show he was similarly situated to the other selectee. Although that candidate also did not have a college degree, he was enrolled in a program for a bachelor’s degree, studied one of the company’s preferred areas, was a member of NSP’s Special Operations Response Team, and had six more years of experience with the company than did the employee. In addition, he was well-prepared for the interview and impressed the panel.

DEI policy. In an attempt to show pretext, the employee argued that the company promoted the female candidate, not because she was more qualified, but because it satisfied the company’s DEI initiatives. In support, he relied on statements by the director to the EEO investigator that the female selectee “is qualified and aligns with the company’s DEI initiative” and “she brings a fresh perspective to the male-dominated supervisor ranks in Chicago.”

The court agreed that evidence a company considered diversity when making a hiring decision seems relevant to whether the company engaged in discrimination. Further, it noted, after Ames, the “days of favoring any group over another group based on race—even in the name of diversity—appear to be numbered, if not over.” It found, however, that the employee failed to show he lost out on the promotion due to the company’s diversity policy.

As to the director’s statements, he did not interview the employee and did not play any role in evaluating his application. Rather, all four interviewers “decided to take a pass on him” and recommended the other candidates instead and there was no evidence they favored those candidates based on race or disfavored the employee based on race. Nor was there any evidence they considered the DEI policy in making their recommendations.

Already weeded out. Moreover, they made their recommendations to the superintendent who considered the applications and eventually recommended the candidates to the director and, once again, there was no evidence the superintendent made his recommendations based on race. By the time the director made the final decision, said the court, the employee had already been weeded out. “At best, a senior executive made a few comments about the company’s DEI objectives, but that executive didn’t play a role in putting a fork in the application from [the employee].” Thus, said the court, the record showed the company passed over the employee based on his qualifications and his poor interview, not because of his race.

Sex discrimination. As to the employee’s sex discrimination claim, the court found it failed for the same reasons as his race discrimination claim. He failed to come forward with enough evidence to support a prima facie case, Norfolk came forward with a nondiscriminatory reason for its hiring decisions, and he did not show that reason was pretextual.

Retaliation. Turning to his retaliation claim, the court found he engaged in protected activity in August 2021 when he complained about the female candidate’s promotion to Norfolk’s EEO office. He failed, however, to show he was fired because of his discrimination complaint. He complained in August and was fired in December, which, observed the court, was “roughly the same amount of time as an NFL regular season, plus preseason.”

Nor was there any evidence of a connection between his complaint and his termination. If anything, the record showed he left the company a day or two after he refused to sign the form about outside employment. “A verdict that Norfolk Southern retaliated against [the employee] for complaining about discrimination is a bridge too far. No reasonable jury could cross it and get there.”

The case is No. 22-cv-227.

Judge: Seeger, S.

Attorneys: David G. Sigale (Law Firm of David G. Sigale) for Ryan Hopkins. Kathleen Jones Goldman (Buchanan Ingersoll & Rooney) for Norfolk Southern Corp.

Companies: Norfolk Southern Corp.

Cases: RaceDiscrimination SexDiscrimination Discrimination Retaliation Discharge ESGNews IllinoisNews GCNNews