Opinion
No. 99 C 6532.
March 16, 2001.
MEMORANDUM OPINION AND ORDER
On October 5, 1999, the plaintiff, Lee Christopher ("Mr. Christopher"), filed a complaint against Motorola, Inc. ("Motorola"), his current employer, alleging racial discrimination, racial harassment, and retaliation for filing an earlier change of discrimination, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). Motorola has a filed a motion for summary judgment (doc. # 20-1). For the reasons set forth below, Motorola's motion is granted.
The complaint followed a charge that Mr. Christopher filed with the Equal Employment Opportunity Commission ("EEOC") on March 16, 1999, and that he amended on March 31, 1999. On July 7, 1999, the EEOC issued Mr. Christopher a right to sue notice.
Pursuant to 28 U.S.C. § 636(c), on December 7, 1999 the parties consented to the jurisdiction of a magistrate judge to issue all rulings in the case, including the entry of final judgment (doc. ## 9-11).
I.
Summary judgment is proper if the record shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. ("Rule") 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50; Flipside Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909 (1988).In deciding a motion for summary judgment, the Court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. The Court must view all evidence in the light most favorable to the nonmoving party, Valley Liquors, Inc. v. Rendfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977 (1987), and draw all reasonable inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990). Credibility determinations, weighing evidence and drawing reasonable inferences are jury functions, not those of a judge when deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255.
"A court's obligation to draw all reasonable inferences in favor of a non-moving party, however, does not require that court to stretch existing evidence to reach conclusions or bolster arguments it could not otherwise support." Frost National Bank v. Midwest Autohaus, Inc., No. 99-3872, 2001 WL 175342, * 6 (7th Cir., Feb. 23, 2001). Mere conclusory assertions, unsupported by specific facts, are not sufficient to defeat a proper motion for summary judgment. Bragg v. Navistar Intern. Trans. Corp., 164 F.3d 373, 377 (7th Cir. 1998) (summary judgment affirmed; "conclusory statements that the testing conditions were less favorable" to plaintiff than to male co-workers was insufficient to "affirmatively demonstrate that a genuine issue of fact exists" on the issue of disparate treatment); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir. 1985) ("conclusory statements in affidavits opposing a motion for summary judgment are not sufficient to raise a genuine issue of material fact").
II.
A. General Overview.
The material facts as to which there is no genuine dispute are as follows. Mr. Christopher is an African-American employee of Motorola, a developer and manufacturer of electronic and communications products (Def.'s Facts ¶ 1). Motorola hired Mr. Christopher as a Credit Analyst on June 1, 1989 at the pay grade E04 (Id. ¶ 2). In 1992, Mr. Christopher was promoted to a Senior Credit Analyst at the pay grade E06 (Id. ¶ 3). In August 1994, Mr. Christopher was promoted to a Senior Financial Analyst at the pay grade E07 (Id. ¶ 4). Mr. Christopher is currently a "Cost Center Financial Analyst" employed by Motorola; his pay grade is currently still an EO7, and he receives an annual salary of $50,500 (Id. ¶ 5).
In his deposition, Mr. Christopher stated that his salary is $50,500 (Def.'s Ex. 3, Christopher Dep. at 393). Now, on summary judgment, Mr. Christopher has submitted a declaration stating that in reviewing the discovery documents for this case he realized he has not been properly paid dating back to January 16, 1992 (Pl.'s Ex. 11, Christopher Decl. ¶ 2). Specifically, he asserts he was awarded a 3.9% increase while his pay actually reflected a 3.6% increase (Id.). Because Mr. Christopher has not amended his complaint to add this claim, and he points to no corroborating evidence in the record to support his assertion, his declaration is insufficient to create a genuine issue of fact on this point. See Slowiak v. Land O' Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).
Mr. Christopher admits that his current position encompasses some duties of a Senior Financial Analyst (Def.'s Ex. 3, Christopher Dep. at 177-79), and that within the Motorola pay system his title since 1994 has been and remains "Senior Financial Analyst" without regard to job function or scope (Id.). Mr. Christopher has never been demoted or suffered a decrease in pay (Def.'s Facts ¶ 6), and he has received a merit pay increase every year that he has been employed by Motorola (Id. ¶ 7). Likewise, Mr. Christopher's benefits have never been adversely affected by Motorola, and he has never been denied opportunity to receive all benefits offered to employees of Motorola (Id. ¶ 8).
Mr. Christopher admitted these facts in his deposition (Def.'s Ex. 3, Christopher Dep. at 183, 394), but in his declaration now claims that his transfer to a new job in August 1998 required lower job skills and therefore amounted to a demotion (Pl.'s Ex. 11, Christopher Decl. ¶ 5). Mr. Christopher's declaration is inconsistent with his prior deposition testimony and, under well-established rules, this unexplained deviation from his prior testimony does not create a genuine issue of fact. Slowiak, 987 F.2d at 1295; see also Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055-56 (7th Cir. 2000).
In his deposition, Mr. Christopher admits that his benefits have never been altered or restricted (Def.'s Ex. 3, Christopher Dep. at 183-184). Although, Mr. Christopher's declaration now suggests the contrary, (Pl. Decl. ¶ 4), that unsupported assertion is not sufficient to create a genuine issue of fact. See Kalis, 231 F.3d at 1055-56.
B. Mr. Christopher's Early Claims of Unfair Treatment.
In 1990, Mr. Christopher discovered that his Caucasian co-workers at Motorola received a performance based bonus that Mr. Christopher did not receive for performing work on the same analyst position (Id. ¶ 16). When Mr. Christopher asked about this bonus, his manager, who then was Maureen Barrett, told Mr. Christopher that he had not satisfied the required standards for the bonus (Pl.'s Resp. Facts ¶ 17). According to Mr. Christopher, he had in fact performed the required standards but had failed to turn them in before the bonus review period (Def.'s Ex. 3, Christopher Dep. at 39-40). Mr. Christopher filed a charge of discrimination against Motorola with the Illinois Department of Human Rights ("IDHR"), alleging he was denied the bonus because of his race (Def.'s Ex. 3, Christopher Dep. at 40). After the charge was filed, Mr. Christopher turned in the required standards and Rich Estremera (who replaced Ms. Barrett as Mr. Christopher's manager) sought and obtained half the bonus amount for Mr. Christopher (Def.'s Facts ¶ 18). The IDHR later informed Mr. Christopher "that there wasn't enough merit to continue" processing the charge, in part because Mr. Christopher had received part of the bonus (Def.'s Facts ¶ 19-20; Pl.'s Resp. Facts ¶ 20).
In 1993, Motorola's Finance and Credit Departments were reorganized; all 60 people in these departments were affected by the reorganization (Def.'s Facts ¶ 21-22). Pursuant to the reorganization, Mr. Christopher was transferred to a job handling entry level accounts (Id. ¶ 23), but his title, pay grade and benefits remained the same (Id. ¶ 24). Mr. Christopher filed a second charge of discrimination alleging that he was transferred because of his race, but he withdrew his charge upon the recommendation of an IDHR investigator (Id. ¶ 25-26). Mr. Christopher maintains that he withdrew his charge in part because the IDHR investigator told him that not much effort would be expended on his charge, and not because he believed the charge had no merit (Pl.'s Resp. Facts ¶ 26).
C. Mr. Christopher's Employment in the Radio Parts Service Group.
In July 1997, after Mr. Christopher had been a Senior Financial Analyst ("SFA") for nearly three years in the "Americas Service Division" (Pl.'s Ex. 1), Mr. Christopher assumed the SFA position left vacant by Bill Berndt (Def.'s Ex. 3, Christopher Dep. at 209-11) in the Radio Parts Service Group ("RPSG") (Def.'s Facts ¶ 27) and he began reporting to Controller Randy Swenson. Mr. Swenson, in turn, reported to Bruce Ross ("Ross"), the U.S. Service Division Controller (Id. ¶ 28). During Mr. Christopher's tenure in RPSG, Mr. Swenson considered Mr. Christopher's job performance substandard, and in the first part of 1998 Mr. Swenson placed Mr. Christopher on an "informal" performance improvement plan ("PIP") (Id. ¶ 29).
In his declaration, Mr. Christopher seeks to dispute this fact by stating that Mr. Swenson never informed Mr. Christopher that he was putting him on a PIP (Pl.'s Ex. 11, Christopher Decl. ¶ 6). However, that declaration does not create a genuine dispute because Mr. Christopher disputes only his awareness of being placed on an improvement plan, and not whether Swenson actually placed him on an improvement plan.
Mr. Christopher asked Mr. Swenson for a promotion because he believed he was performing both his own duties and all the duties of Mr. Berndt (Def.'s Facts ¶ 30) (Def.'s Ex. 3, Christopher Dep. at 207). Mr. Swenson denied Mr. Christopher's request for a promotion because he did not believe that Mr. Christopher was performing all of Mr. Berndt's duties (Id. ¶ 31-32), and in any event, Mr. Berndt had been paid as an "EO7" — the same grade assigned to Mr. Christopher at the time.
In his deposition, Mr. Swenson stated that Mr. Christopher was not doing the work of two people when Mr. Berndt left the department (Def.'s Ex. 5, Swenson Dep. at 133). Mr. Christopher ostensibly disputes the fact that he was not performing all of Mr. Berndt's duties by pointing to two memoranda. The first memorandum indicates that Mr. Christopher and Mr. Berndt were mutually responsible for the duties of their department and that they were able to perform reciprocal duties (Pl.'s Ex. 1). The second memorandum indicates that Mr. Christopher assumed one project that was formerly assigned to Mr. Berndt (Pl.'s Ex. 2). Since Mr. Christopher does not put forth any evidence (other than his own self-serving testimony) to show that he assumed all of Mr. Berndt's duties, there is no genuine dispute of fact here.
See Slowiak, 987 F.2d at 1295; Kalis, 231 F.3d at 1055-56. Moreover, any dispute on this point is not material because — as explained below — Mr. Christopher does not have a timely "failure to promote" claim before the Court.
Mr. Christopher subsequently complained to Motorola's Human Resources Department about not receiving the promotion, alleging that the failure to promote was a form of race discrimination (Id. ¶ 33). Motorola's equal employment opportunity officer Aida Galarza ("Ms. Galarza"), investigated Mr. Christopher's complaint and, on or about January 15, 1998, concluded that there was no evidence of discrimination (Id. ¶ 34). In addition, Ms. Galarza recommended that Mr. Christopher be put on a formal PIP (Id. ¶ 35). Thereafter, on January 31, 1998, Mr. Christopher received a performance evaluation from Mr. Swenson (Id. ¶ 36). Although this evaluation contained criticisms of Mr. Christopher's performance, there is no evidence that the review was unsatisfactory or that it resulted in the denial of an annual merit increase or other pay increase or bonus (Def.'s Facts ¶¶ 6, 24; Pl.'s Add'l Facts ¶ 49). Mr. Christopher subsequently submitted a rebuttal to Mr. Swenson's performance evaluation that was appended to the evaluation and included in his personnel file (Id. ¶ 40).
Again, Mr. Christopher disputes this fact without explanation and points only to his declaration, which contradicts his prior deposition testimony. Compare (Pl.'s Ex. 11, Decl. ¶ 6) with (Def.'s Ex. 3, Christopher Dep. at 241). Mr. Christopher's unexplained contradiction cannot create a of genuine dispute of fact. Slowiak, 987 F.2d at 1295; Kalis, F.3d at 1055-56.
There is a dispute regarding whether Mr. Christopher's performance while he reported to Mr. Swenson in RPSG was "substandard" (Def.'s Facts ¶ 29), but this dispute is immaterial because Mr. Christopher has not timely asserted a claim on this issue.
D. The Bullet Incident.
On or about December 22, 1997, Mr. Christopher found a spent .22 caliber bullet casing tipped with red paint (or lipstick) on his desk on a paperweight beside a picture of his wife, who is Caucasian (Def.'s Facts ¶ 72; Pl.'s Resp. Facts ¶ 72). Mr. Christopher reported the incident to Motorola security, which called the Schaumburg police department (Def.'s Facts ¶ 74-75; Pl.'s Resp. Facts ¶ 74). Both Motorola security and the Schaumburg police department took statements from Mr. Christopher about the incident (Id. ¶ 76), and Mr. Christopher reported that he did not know who put the bullet casing on his desk (Def.'s Facts ¶ 73; Pl.'s Add'l Facts ¶ 64).
Mr. Christopher also met with Motorola Director of Security Chuck Ekdahl to discuss the incident. Mr. Ekdahl asked Mr. Christopher if he wanted security to place a surveillance camera in his cubicle (Id. ¶ 77), and Mr. Christopher told Mr. Ekdahl that he did not (Id. ¶ 78). Mr. Ekdahl also offered Mr. Christopher several security services, including escorts to and from his car, a special parking space close to the building, and a cellular phone (if he did not already have one) for use in emergencies — all of which Mr. Christopher turned down (Id. ¶ 79).
Mr. Ekdahl reviewed the key-card access reports for the entire weekend proceeding the incident and evaluated videotapes of entrance door activity, but he did not find anything to shed light on the case (Id. ¶ 80). Mr. Ekdahl also kept in communication with the Schaumburg Detective assigned to the case, who informed him that there was not enough evidence and not enough leads to proceed with the case (Id. ¶ 81). At that time, Mr. Ekdahl communicated the status of the investigation to Mr. Christopher, and Mr. Christopher did not offer any additional information or express any ongoing concern; as a result, the case was closed (Id. ¶ 82-83). The identity of the person leaving the bullet on Mr. Christopher's desk was never discovered; however, neither that incident — nor anything of a similar ilk — ever occurred again.
E. Motorola's Downsizing and Mr. Christopher's Transfer.
In early 1998, Motorola underwent an organization-wide restructuring that involved a "downsizing" in which approximately 10,000 employees were laid off (Id. ¶ 41). The restructuring was announced by e-mail within Motorola and, soon thereafter, was covered by the news media (Id. ¶ 42). In March 1998, Mr. Ross informed the RPSG employees that they were going to be consolidated into the Radio Network Solutions Group ("RNSG") as part of the restructuring (Id. ¶ 43). As a result of the restructuring, Mr. Ross eliminated seven positions within RPSG, including the SFA positions held by Mr. Christopher and Robyn Meciej, a Caucasian female (Id. ¶ 44-45). Mr. Ross made the determination of which positions would be eliminated based solely on whether the job functions of the position were duplicative of those performed by others in RNSG (Def.'s Facts ¶ 46).
Although Mr. Ross generally informed the RPSG department of Motorola's plans to downsize in March 1998 (Id. ¶ 48), he did not personally meet with Mr. Christopher to inform him that his job would be eliminated until June 1, 1998; at the time, Mr. Ross explained that Mr. Christopher's position would be eliminated after the consolidation because his job would be redundant (Id. ¶ 47). Motorola admits that while Mr. Christopher's position was eliminated, some of the tasks formerly performed by Mr. Christopher may have been transferred to another unnamed employee (Def.'s Reply Facts ¶ 79). Neither side has offered evidence as to the race of the individual to whom these tasks were transferred. After being notified that his job was being eliminated, Mr. Christopher immediately began looking for another job both within and outside Motorola (Def.'s Facts ¶ 49). Mr. Ross assisted Mr. Christopher with his job search within Motorola (Id. ¶ 50). Because of his own concerns about Mr. Christopher's job performance, Mr. Ross considered putting Mr. Christopher on a formal PIP, but he did not do so because he believed it would limit Mr. Christopher's chances for a new job within Motorola after the restructuring (Id. ¶ 51).
In July 1998, Mr. Christopher met with an intake officer at the Equal Employment Opportunity Commission ("EEOC") and told the officer that he was afraid of being terminated and wanted to file a charge of discrimination (Id. ¶ 52-54). The intake officer advised Mr. Christopher to wait and see if he was actually terminated before filing the charge (Id. ¶ 54).
In fact, Mr. Christopher's employment was not terminated. Rather, Motorola transferred him to a new position in the newly-constituted RNSG on August 8, 1998 (Id. ¶ 55-56). Although Mr. Christopher's job informally was called that of an Internal Controls Analyst, he did not lose his formal title of SFA, and there was no change in Mr. Christopher's benefits or other employment terms (Id. ¶ 57).
Although Mr. Christopher now claims in his new declaration that his title changed, the underlying evidence he submits in support of that claim does not create a genuinely disputed issue. Mr. Christopher testified on two separate occasions in his deposition that his title did not change (Def.'s Ex. 3, Christopher Dep. at 309, 342-43).
Additionally, Mr. Christopher admitted in his Rule 56.1(b) response that his title stayed the same (Pl.'s Resp. Facts ¶ 67). The contrary statements made in the declaration cannot contradict Mr. Christopher's prior deposition testimony for purposes of creating a genuine issue. See Slowiak, 987 F.2d at 1295; Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir. 2000). However, even if there were a genuine dispute regarding whether Mr. Christopher's title changed, this fact would not be material because a change in job title that does not "involve a loss of pay or benefits does not constitute an adverse job action." See Gorence v. Eagle Food Centers, Inc., ___ F.3d ___, No. 93 C 4862, 2001 W L 225239 (Slip Op. at 11) (7th Cir., March 8, 2001) (citing Ribando v. United Airlines, 200 F.3d 507 (7th Cir. 1999)).
This job transfer did result in certain changes to Mr. Christopher's job duties. After the transfer, Mr. Christopher's duties were to "test" whether different departments had addressed problems identified in a previously conducted internal audit and also included acting as a consultant to the business group in relating to Motorola's standards of controls (Def.'s Facts ¶ 61; Pl.'s Resp. Facts ¶ 61). Additionally, Mr. Christopher performed federal government awareness training, primary testing of export/import controls, compiled reporting functions and wrote internal control procedures (Pl.'s Add'l Facts ¶ 81). However, there is no evidence that these functions were inconsistent with the grade EO7 job that Mr. Christopher had as an SFA, and that he retained upon the transfer. "There are many different potential duties associated with being a grade EO7 financial analyst. Motorola's job description for an EO7 financial analyst is a general guideline" (Pl.'s Add'l Facts ¶ 68).
After the transfer, Mr. Christopher reported to Internal Controls Manager Julie Sampson, who supervised only Mr. Christopher and a summer intern (Def.'s Facts ¶ 59-60). At the direction of her supervisor, Bob Martin, Ms. Sampson kept notes on Mr. Christopher because Mr. Martin told Ms. Sampson that Mr. Christopher had exhibited performance issues in the past (Pl.'s Add'l Facts ¶ 6). In her deposition, Ms. Sampson stated that while she had never specifically been asked to take notes on other employees, she previously had kept notes on other employees for evaluation purposes (Pl.'s Add'l Facts ¶ 7; Def.'s Reply ¶ 7). Ms. Sampson's notes on Mr. Christopher included comments from several of the individuals subject to the internal controls testing, who objected to the processes and the results obtained by Mr. Christopher (Def.'s Facts ¶ 62).
On February 17, 1999, Ms. Sampson and Mr. Christopher met to discuss Ms. Sampson's review of Mr. Christopher's job performance (Id. ¶ 64). Mr. Christopher disagreed with Ms. Sampson about some aspects of the performance review, and told Ms. Sampson that he would supply additional information to clarify some of the disagreements (Id. ¶ 65-66). Approximately one week later, Mr. Christopher submitted a rebuttal memorandum that was appended to his performance evaluation and included in his personnel file, attributing many of the criticisms of his performance to problems with third parties or outsiders (Id. ¶ 67-68). Despite these disagreements, it is undisputed that the overall rating that Ms. Sampson gave Mr. Christopher was "Partially Meets Expectations" and that based on the evaluation Mr. Christopher received a pay increase (Pl.'s Ex. 5; Def.'s Facts ¶ 7).
Nonetheless, on March 16, 1999, Mr. Christopher filed an EEOC charge alleging retaliation, on the ground that he received a substandard performance evaluation on February 17, 1999 in retaliation for filing his charge of discrimination in 1993 (Id. ¶ 101). Mr. Christopher amended the charge on March 31, 1999 to add the claim that he had been discriminated against and harassed on the basis of his race (Id. ¶ 102).
On February 8, 1999, prior to receiving Ms. Sampson's evaluation of the filing of the EEOC charge, Mr. Christopher was transferred from the Internal Controls Department on February 8, 1999, to another financial analyst position within Motorola (Id. ¶ 63). According to Ms. Sampson, Mr. Christopher was transferred from her supervision into a financial group in the engineering department due to a reorganization of the Internal Controls Group (Def.'s Ex. 4, Sampson Dep. at 78).
III.
Mr. Christopher's Title VII claims of racial discrimination, racial harassment and retaliation are based on a number of events going back as far as June 1990, and culminating in his February 1999 evaluation by Ms. Sampson. Motorola asserts that with the exception of the claim based on the February 1999 evaluation, all of Mr. Christopher's claims are time-barred (Def.'s Reply at 1). Motorola also asserts that, irrespective of any time bar, all of Mr. Christopher's claims of racial discrimination and retaliation fail because he cannot establish any materially adverse employment action; cannot establish a prima facie case; and cannot establish pretext (Id.). We address each argument in turn.
IV.
Under Title VII, a plaintiff has 300 days from the occurrence of an allegedly discriminatory act in which to file a timely charge either with the federal Equal Employment Opportunity Commission or the appropriate state agency. Hardin v. S.C. Johnson, 167 F.3d 340, 344 (7th Cir. 1999). Generally, a Title VII plaintiff is only allowed to seek relief for conduct occurring within the limitations period. Galloway v. General Motors Parts Oper., 78 F.3d 1164, 1166 (7th Cir. 1996). To be considered "timely" under Title VII, a plaintiff must file a charge within 300 days of the time when he knew or reasonably should have known that the action was discriminatory. Jones v. Merchants Nat. Bank Trust, 42 F.3d 1054, 1059 (7th Cir. 1994). This filing requirement is not a "mere technicality," but rather is intended to provide notice to a defendant as to the nature of the allegations and to give the EEOC "an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party [is] permitted to file a lawsuit." Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985) (citations omitted).
An exception to this rule is the continuing violation theory, which allows a "plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period. For purposes of the limitations period, courts treat such a combination as one continuous act that ends within the limitations period." Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 707 (7th Cir. 1995) (quoting Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992)). The continuing violation doctrine applies "[w]hen it would be unreasonable to expect the plaintiff to perceive offensive conduct as [discriminatory] before the limitations period runs, or [when] the earlier discrimination may only be recognized as actionable in light of `events that occurred later, within the period of the statute of limitations,'" or "when, after an initial incident of discrimination, a plaintiff does not feel `sufficient distress to . . . mak[e] a federal case.'" Hardin, 167 F.3d at 344 (quoting Galloway, 78 F.3d at 1166, 1167).
However, the Seventh Circuit has made clear that the continuing violation theory is not to be used indiscriminately as a means to revive untimely claims. "[T]he purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is to permit the inclusion of acts" whose discriminatory character "was not apparent at the time they occurred." Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 446 (7th Cir. 1994). But, a plaintiff is not allowed to sit on his rights indefinitely. Where a pattern of discrimination or harassment spreads out over years, and it is evident long before the plaintiff sues that he was a victim of actionable discrimination or harassment, he "cannot reach back and base [the] suit on conduct that occurred outside the statute of limitations period.'" Hardin, 167 F.3d at 344 (quoting Galloway, 78 F.3d at 1167). Thus, if a plaintiff knew, or "with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed" him, he must sue over that act within the relevant statute of limitations. Jones v. Merchant Nat'l Bank Trust Co. of Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994) (quoting Moskowitz v. Trustees of Purdue University, 5 F.3d 279, 281-82 (7th Cir. 1993)).
Here, Mr. Christopher filed his EEOC charge on March 16, 1999, and thereafter amended the charge on March 31, 1999. Motorola agrees — as it must — that Mr. Christopher's charge based on the February 1999 Sampson evaluation is timely. However, Motorola claims that Mr. Christopher may not base any liability claims on Mr. Swenson's performance evaluation of Mr. Christopher on January 29, 1998, or the bullet casing incident in January 1998, because those events occurred more than 300 days before the original charge was filed — that is, before May 20, 1998. Motorola further claims that the job elimination claim is not part of the original charge and is untimely under the amended charge, because plaintiff received notice of the job elimination on June 1, 1998 — more than 300 days prior to the March 31, 1999 amended charge. Finally, on the same reasoning, Motorola argues that any other claim based on conduct prior to May 20, 1998 (such as the informal PIP) is time-barred. For the reasons that follow, the Court finds that the job elimination claim (and the job transfer claim that goes with it) survive the time bar and are within the scope of the two EEOC charges filed. However, we agree that the January 1998 evaluation, the bullet casing incident, and any other events prior to May 20, 1998 are time-barred.
A.
We begin with the claims that are timely. As stated above, the assertion that Ms. Sampson's February 1999 evaluation was in retaliation for plaintiff's 1993 charge is well within the 300-day window. Likewise, although Motorola does not break this claim out separately, the Court finds that plaintiff's claim that his August 1998 transfer was retaliatory is within the 300-day window, and was alleged in the original EEOC charge (Def. Ex. 1). In addition, we believe that the original EEOC charge fairly encompassed the June 1, 1998 notice of job elimination, and thus is timely (since that event occurred after May 20, 1998, and thus within the 300-day window as measured from March 16, 1998, the date the original charge was filed).
Motorola concedes that the job elimination claim would be timely with respect to the original charge, but argues that it falls outside the scope of that charge. The Court disagrees. Because most EEOC charges are completed by laypersons rather than by lawyers, a Title VII plaintiff need not allege in an EEOC charge each and every fact that combines to form the basis of each claim in his complaint. The test for determining whether an EEOC charge encompasses the claims in a complaint grants the Title VII plaintiff significant leeway: all Title VII claims set forth in a complaint are cognizable that are "like or reasonably related to the allegations of the charge and growing out of such allegations." Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976). Thus, the test of Jenkins is satisfied if there is a reasonable relationship between the allegations in the charge and the claims in the complaint, and the claim in the complaint can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.
The job elimination claim falls within the scope of the original charge because it satisfies both parts of the Jenkins test. First, the job transfer allegations underlying the retaliation claim outlined in the original charge are reasonably related to the events giving rise to the job elimination claim in the complaint. The undisputed facts show that the elimination of Mr. Christopher's job as a Senior Financial Analyst in RPSG was due to a company-wide reorganization that had nothing to do with Mr. Christopher. Second, the job transfer grew out of the elimination of Mr. Christopher's job and, arguably, would not have occurred but for the job elimination. Thus, the job elimination claim is not time barred.
B.
While the claims based on the February 1999 evaluation, the June 1998 notice of job elimination and the August 1998 transfer are timely, Mr. Christopher's other claims are not. Even as measured by the date of the original charge, the most generous assumption for Mr. Christopher, all of the other events of which he complains occurred before May 20, 1998. For the following reasons, those claims do not fall within the continuing violation exception.
First, there is undisputed evidence that Mr. Christopher subjectively perceived that the Swenson evaluation and the bullet incident were motivated by racial animus at the time those events occurred (Def.'s Facts ¶ 85). Moreover, long before those events, Mr. Christopher had formally complained of discrimination by Motorola — both in 1990 and in 1993 when he filed IDHR charges. Given these circumstances, Mr. Christopher cannot claim he was unaware in late 1997 and early 1998 that discrimination might have been afoot; he was thus obligated to claim discrimination when the allegedly discriminating events occurred.
Second, the alleged discrimination did not occur over a continuous period of time and it cannot be linked with the timely allegations of discrimination. Both the Swenson evaluation and the bullet incidents were complete acts at the time they occurred — acts that did not build upon one another to culminate in a belated revelation that discrimination had been occurring over time. Both of those acts were also isolated events; they were not linked to each other, nor can they be linked, casually or factually to the later, timely allegations such as the job elimination, job transfer or Sampson evaluation. There is no evidence that the Swenson evaluation or the bullet incident had anything to do with the company-wide reorganization that affected thousands of employees — many more of whom, unlike Mr. Christopher, lost their jobs. Likewise, Mr. Christopher cannot seriously contend that the Swenson evaluation or bullet incident were related or linked to the job transfer (which grew out of the job elimination) or the Sampson evaluation (which was based on the transfer and on Mr. Christopher's performance in Internal Controls, not RPSG).
And even if he so contended, there is no evidence to support such a claim. There is no evidence that the Swenson evaluation was the precursor to the Sampson evaluation, or that it was used by Ms. Sampson in her assessment of Mr. Christopher's performance while he was an Internal Controls Analyst.
Moreover, one full year passed between the Swenson and Sampson evaluations, and Mr. Christopher was performing admittedly different functions in a different group at the time Ms. Sampson evaluated him than he was when Mr. Swenson rendered his evaluation. The Court sees no evidence creating a link here. Finally, as to the retaliation claim, there is no suggestion in the EEOC charges or the complaint that this claim is based on the 1998 Swenson evaluation or the 1997 bullet incident. Even if there was, the long period of time between the protected activity alleged — the filing of a discrimination charge in 1993 — and the alleged retaliation occurring some four years later would preclude the Court from finding retaliation on the merits in the absence of other evidence creating a causal link. See generally Fyfe v. City of Fort Wayne, No. 98-CV-0353, 2001 WL 171173 * 5 (7th Cir. 2001). And there is no such other evidence here.
V.
The fact that Mr. Christopher has alleged certain timely claims does not mean that those claims automatically survive summary judgment. For the reasons that follow, the Court finds that they do not. We analyze in turn Mr. Christopher's claims of discrimination and retaliation.
The sole basis for Mr. Christopher's harassment claim is the bullet incident (Def.'s Facts ¶ 85). Even had it been timely asserted, the bullet incident would fail to survive summary judgment. To be actionable under Title VII, the bullet casing incident must have been directed at Mr. Christopher "because of" his race. Holman v. Indiana, 211 F.3d 399, 402-03 (7th Cir. 2000), cert. denied, ___ S.Ct. ___, 2000 WL 1203523 (Oct. 2, 2000); Bell v. Eastman Kodak Co. No. 95 C 4687, 1998 WL 178814, at * 15 (N.D.Ill. March 9, 1998), reconsideration denied, 1998 WL 801842 (N.D.Ill. Nov. 12, 1998), appeal dismissed, 214 F.3d 798 (7th Cir. 2000) ("The key inquiry in these cases is whether the alleged acts of harassment occurred `but for' the employee's race"). Mr. Christopher, however, does not know who placed the bullet casing on his desk; although he suspects that the reason it was placed there was racially motivated, he has no evidence to back up this suspicion (Def.'s Facts ¶ 89). Without sufficient evidence to link the bullet to a Motorola employee, and evidence that this incident was, in fact, directed at Mr. Christopher because of his race, any harassment claim could not survive.
A.
It is well-established that a plaintiff must establish a prima facie case of race discrimination to survive a defendant's summary judgment motion. See McDonnell-Douglas v. Green, 411 U.S. 792, 802 (1973). Under the McDonnell-Douglas test, a plaintiff must first establish a prima facie case of discrimination by showing that he: (1) is a member of a protected class; (2) performed the job satisfactorily; (3) suffered an adverse employment action; and (4) was treated less favorably by the employer than similarly situated employees. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).If a plaintiff fails to establish any element of the prima facie case, summary judgment must be granted for the employer. Id.
A plaintiff who successfully establishes a prima facie case creates a presumption of unlawful discrimination. Id. The burden of production then shifts to the defendant to introduce evidence that it had a legitimate, nondiscriminatory reason for the adverse action. Id. If the defendant makes this showing, then the presumption of discrimination is eliminated, and the plaintiff must demonstrate by a preponderance of the evidence that the defendant's stated reason for the action was merely a pretext for discrimination. Id. at 253. To raise an inference of pretext, a plaintiff's task on summary judgment is to produce sufficient evidence to sustain a reasonable inference that the employer's asserted reason is not the real reason for the adverse decision but is instead a cover-up for unlawful discrimination. Id.
In this case, there is no dispute that Mr. Christopher (who is African American) is a member of a protected class, or that he performed his job in a generally satisfactory manner. The two issues are whether Mr. Christopher has suffered an "adverse employment action," and whether Mr. Christopher was "similarly situated" to others outside the protected class who were treated more favorably. The Court finds that Mr. Christopher has offered no evidence which could persuade a reasonable jury as to either of those elements.
1. Mr. Christopher Cannot Establish An Adverse Employment Action.
An alleged adverse job action must be "materially" adverse, meaning that it must consist of more than "a mere inconvenience or an alteration of job responsibilities." Ribando v. United Airlines, Inc., 200 F.3d 507, 510-511 (7th Cir. 1999) (citing Crady v. Liberty Nat'l Bank Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)). What constitutes an "[a]dverse employment action has been defined quite broadly in this circuit." Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996). "The question whether a change in an employee's job or working conditions is materially adverse, rather than essentially neutral, is one of fact, . . . and so can be resolved on summary judgment only if the question is not fairly contestable." Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 273-74 (7th Cir. 1996). By the same token, "not everything that makes an employee unhappy is an actionable adverse action." Cullom v. Brown, 209 F.3d 1035, 1041 (7th Cir. 2000) (quoting Smart, 89 F.3d at 441). Rather, the complained of action must materially affect the employment conditions, Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 932 (7th Cir. 1996); "an amorphous litany of complaints about a myriad of workplace decisions regarding promotions, salary, etc. does not meet a plaintiff's burden of proof." Gorence, 2001 WL 225239 (Slip Op. at 5). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Crady, 993 F.2d at 136. By contrast, adverse performance ratings alone are not enough to constitute adverse employment actions. Smart, 89 F.3d at 442.
In this case, there is no evidence that Mr. Christopher's job transfer resulted in any of these kinds of identifiable losses: (1) he did not lose his job (he is, in fact, still employed at Motorola); (2) his salary was not decreased; (3) his title did not change; (4) his benefits were not affected; and, (5) the evidence of the record could not lead a reasonable jury to conclude that job responsibilities after Mr. Christopher was transferred were "significantly diminished." On this latter point, the undisputed facts in this case show that Mr. Christopher's duties after the transfer included testing whether different departments had addressed problems identified in a previously conducted internal audit (Def.'s Facts ¶ 61). He also performed federal government awareness testing, performed primary testing of export/import controls, compiled reporting functions and wrote internal control procedures (Pl.'s Add'l Facts ¶ 81). Although there is no comparable evidence regarding what Mr. Christopher's former duties as an SFA entailed (Id. ¶ 68), Mr. Christopher's job responsibilities do not appear to have been significantly diminished, even if they were altered.
At bottom, Mr. Christopher's complaint that his new position was a "materially adverse" change is based solely on his perception that his prior work as a Senior Financial Analyst in the RPSG was more "significant" than his internal controls testing in the RNSG. But the "adversity of an employment action is judged objectively." Cullom, 209 F.3d at 1041. And here, Mr. Christopher has offered no evidence of a material change in his job responsibilities or other tangible job benefits such as pay grade, office size, or title — all of which remained the same (Def.'s Facts ¶¶ 24, 57).
Without that kind of objective evidence, Mr. Christopher cannot establish the adverse employment action element, and he therefore cannot establish a prima facie case of race discrimination based on the August 1998 job transfer. As for Ms. Sampson's evaluation 1999 evaluation, Mr. Christopher's argument runs headlong into controlling authority that the performance evaluations, alone, do not constitute an adverse employment action. Thus, the race discrimination claims based on those events must fail.
In his opposition memorandum, as well as in his amended charge, Mr. Christopher made allegations regarding an "informal" PIP. To the extent that Mr. Christopher claims that this informal PIP was tantamount to a probation and thus constituted an adverse employment action (Pl.'s Opp. Mem. at 8), the Court finds that the PIP is time-barred. This informal PIP occurred in the first part of 1998 (Def.'s Ex. 5, Swenson Dep. 22-23), which was prior to May 20, 1998, and therefore outside the 300-day window for the original EEOC charge. However, even if this factual allegation were timely, the Court finds no evidence in the record to support the inference that the informal PIP was a probationary act. See Pl.'s Add'l Facts ¶ 76 (where Mr. Christopher denies ever being placed on an informal PIP). Instead, the evidence is that the PIP was a mere remedial tool used by Mr. Swenson to improve Mr. Christopher's performance; it carried with it no stigma or negative, lasting consequences for Mr. Christopher in his employment at Motorola (Def.'s Ex. 5, Swenson Dep. at 21).
In fact, the record shows that Mr. Christopher's supervisors contemplated placing Mr. Christopher on a formal performance improvement plan before his job elimination, but they ultimately decided against it because of the negative impact it would have on Mr. Christopher's career at Motorola (Def.'s Facts ¶ 51; Def.'s Ex. 6, Ross Dep. at 62-63).
Without evidence that the informal PIP had some material or adverse effect on Mr. Christopher's job or future job prospects, the Court would not find that this admittedly remedial step constitutes a probation or adverse employment action for purposes of establishing a prima facie case of discrimination under Title VII. See generally Cullom, 209 F.3d at 1041.
2. There Is No Evidence Of Similarly Situated Individuals Being Treated More Favorably.
The elimination of Mr. Christopher's job in June 1998, which led to his transfer, would meet the definition of an adverse action. But a claim of race discrimination based on this event fails, too, because Mr. Christopher has failed to show that there were similarly situated employees outside the protected class who were treated more favorably than Mr. Christopher. Mr. Christopher alleges that two Caucasian RPSG co-workers, Robyn Meciej and Bill Berndt, were similarly situated employees who were treated more favorably than Mr. Christopher. In particular, Mr. Christopher alleges that Berndt and Meciej were each promoted twice, receiving pay increases each time, while Mr. Christopher was not — even though Mr. Christopher was hired before these two employees at a higher pay grade (E07) and essentially made the same amount of money that Mr. Berndt made in the same department (RPSG) after being promoted (Pl.'s Add'l Facts ¶ 62).
Mr. Christopher's assertion that Mr. Berndt and Ms. Meciej received these promotions is based only on Mr. Christopher's bare assertion, without any supporting evidence. But even setting aside that important point, Mr. Christopher's argument based on these comparisons fails because these alleged promotions are time-barred. Mr. Berndt's promotions allegedly took place in June 1995 and July 1996, and Ms. Meciej's promotions allegedly took place in June 1996 and January 1998. And, Mr. Christopher has not offered evidence that Motorola's decision to promote these individuals is related in any way to the June 1998 job elimination (or, for that matter, the August 1998 transfer or to Ms. Sampson's performance evaluation of Mr. Christopher in February 1999).
Finally, there is no evidence that Mr. Berndt or Ms. Meciej received more favorable treatment than Mr. Christopher in connection with the job elimination. Rather, Mr. Berndt had been transferred to another job within the company in another state before any jobs were eliminated in RPSG. And, the undisputed evidence shows that Mr. Ross eliminated Ms. Meciej's job in RPSG before he eliminated Mr. Christopher's job.
The Court concludes that Mr. Christopher has not presented sufficient disputed evidence of non-African-American similarly situated employees who were treated more favorably than Mr. Christopher in connection with the job elimination. Consequently, Mr. Christopher's prima facie case fails on this element of the McDonnell-Douglas test. Because Mr. Christopher has offered no facts to establish the third or fourth prongs of the test, summary judgment must be granted for Motorola on the claim of race discrimination.
B.
Mr. Christopher's retaliation claim is based on three events that were timely made a part of his EEOC charge: his job elimination in June 1998, his job transfer in August 1998 and the performance evaluation he received from Julie Sampson in February 1999. Mr. Christopher claims that Motorola's action in all three instances sought to punish him for filing his 1993 EEOC charge. To establish a claim for retaliation under Title VII based on any of those events, Mr. Christopher must show that: (1) he was engaged in a protected activity under Title VII; (2) he suffered an adverse employment action subsequent to his participation; and (3) there exists a causal connection between the adverse employment action and his participation in the protected activity. Smart, 89 F.3d at 440.
Here, there is no question regarding the first element because Mr. Christopher filed a charge with IDHR, an undisputably protected activity under Title VII. Filipovic v. K R Express Systems, Inc., 176 F.3d 390, 398 (7th Cir. 1999). However, there is no evidence of a causal connection between the 1998 job elimination and transfer and the 1999 evaluation on the one hand, and Mr. Christopher's discrimination charge filed some five to six years earlier. In some instances, a short time lapse between the protected act and the alleged adverse action can create an inference that the former triggered the latter. But the long time lapse here cannot support an inference of retaliation. E.g., Fyfe v. City of Fort Wayne, No. 00-1396, 2001 WL 171173, * 5 (7th Cir., Feb. 22, 2001) ("In the absence of any other evidence of a causal link, the 18-month interval in this case is insufficient proof of causation"). And, Mr. Christopher offers no other evidence linking these events to the discrimination charge he filed many years earlier. For this reason, the retaliation claim fails.
C.
Even if Mr. Christopher could establish a prima facie case on those claims of racial discrimination and retaliation that are timely, his case would not survive summary judgment. If a prima facie case of discrimination and/or retaliation is established, then the burden shifts to the employer to provide a nonretaliatory explanation for its actions. If the employer satisfies that burden of production, then "the burden shifts back to the employee to demonstrate that the employer's stated reason is merely a pretext for covering up discriminatory conduct." Smart, 89 F.3d at 439. At the end of the day, the plaintiff must offer evidence sufficient to show that "the employer would not have taken the adverse action `but for' the protected expression[,]" in the case of retaliation, or but for the plaintiff's protected trait, in the case of discrimination. Cullom, 209 F.3d at 1040. The Supreme Court has recently reaffirmed that under the McDonnell Douglas test, proof establishing a prima facie case along with evidence sufficient to cause "rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." Reeves v. Sandersen Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2101 (June 12, 2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993) (emphasis in original)). Here, Motorola has offered evidence of legitimate, non-discriminatory reasons for its actions, and Mr. Christopher has offered no probative evidence of pretext.
With respect to the Sampson evaluation, there is no evidence that Ms. Sampson's evaluation was based on racial or retaliatory motivations, rather than on her honest assessment of his job performance.
Indeed, the evidence is to the contrary. For example, in the evaluation Ms. Sampson documents instances where Mr. Christopher was not completing his assigned duties on time, had failed to communicate with her about these deadlines, and had not been able to work well with other management personnel as well (based on observations and feedback received from other managers) (Sampson Dep., Ex. 1, at D00639, D00646-47; and 34). These other managers similarly identified job performance issues with Mr. Christopher (Def's Ex. 4, Sampson Dep. at D00648).
Mr. Christopher argues that the Sampson performance evaluation is based on race discrimination and/or is a form of retaliation not on the basis of "disagreement" with the evaluation, but because he believes it was "not honestly made" (Pl.'s Opp. Mem. at 10). Mr. Christopher's perception is based on his belief that Ms. Sampson kept performance logs on him and on no one else (Pl.'s Add'l Facts ¶ 7; Def.'s Reply Facts ¶ 7; Def.'s Reply Mem. at 12 n. 6), and on a comment she made in her deposition (to which he does not cite) regarding her belief that there were not racist people in America (Pl.'s Add'l Facts ¶ 30).
As an initial matter, it is not the responsibility of the Court to dig through the depositions to find evidence that supports the plaintiff's case. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("judges are not like pigs, hunting for truffles buried in briefs"). Mr. Christopher's comment that "[t]his court need only read the transcript . . . from pages 11 through 34" (regarding the Swenson evaluation, which is time-barred) and his reference to testimony by Ms. Sampson, without any page citation to her deposition, is an example of such a request. The Court will not go in search of this evidence.
Nonetheless, it is immaterial to the question of pretext here because, as Motorola points out, there is no evidentiary basis to believe that the log or the testimony referred to are predicates to unlawful discrimination or retaliation. The fact that logs were kept is explained by the fact that there were subjective concerns about Mr. Christopher's job performance, which constitutes a legitimate, non-discriminatory reason for that action. See Walker v. Glickman, No. 00-1978, 2001 WL 194510, * 3 (7th Cir., Feb. 27, 2001) (the fact that a person responsible for hiring wished to investigate the work history of an applicant who had previously filed a charge was not evidence of retaliation, since the plaintiff had referred to her prior employment with defendant in a letter and thus gave defendant reason to do such an investigation). And, Ms. Sampson's comment in her deposition about a general belief, untethered to anything she did as Mr. Christopher's supervisor, is not direct evidence of discrimination. Indeed, it does not even rise to the level of a "stray remark," which the Seventh Circuit has repeatedly said is insufficient to make out a discrimination claim. See, e.g., Gorence, 2001 WL 225239 (Slip Op. at 4).
Thus, we are left with nothing but Mr. Christopher's subjective perception that Ms. Sampson did not honestly base her ratings on the reasons she gave in the evaluation and in her deposition. But Mr. Christopher's subjective belief, even if strongly felt, is simply not sufficient evidence to create a triable issue. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 984-85 (7th Cir. 1999); Vakharia v. Swedish Covenant Hospital, 190 F.3d 799, 807-08 (7th Cir. 1999).
As for the job elimination claim, there is ample evidence that many people at Motorola lost their jobs in the reorganization, not simply Mr. Christopher. Mr. Christopher has offered no evidence that the elimination of his job was based on racial motivations and that the reorganization was simply a pretext for the decision to eliminate his job. And, as for the job transfer, the undisputed fact that Mr. Christopher was maintained as an employee at Motorola, despite the elimination of his job in RPSG, and at the same pay grade and with the same title, belies any arguments regarding pretext for discrimination since the transfer was necessary to prevent Mr. Christopher from losing his employment with Motorola altogether. For these reasons, the Court would find that Mr. Christopher failed to establish a genuine issue of material fact as to pretext.
CONCLUSION
For the foregoing reasons, Motorola's motion for summary judgment (doc. # 20-1) is granted. The Clerk of the Court is to enter final judgment for Motorola and against Mr. Christopher, pursuant to Fed.R.Civ.P. 58. Each party is to bear its own costs.