Opinion
Cause No. IP01-0690-C-H/K
December 6, 2002
Kenneth T Roberts Roberts Bishop Roberts, Indianapolis, IN.
Anthony Prather Barnes Thornburg, Indianapolis, IN.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Larry Clanton worked for Defendant Kirk Blum Manufacturing Company as a fill-in employee. On September 19, 2000, Defendant's shop foreman "chained and shackled" him to his work space. Thereafter, a parade of employees filed through the facility to witness the incident. To Clanton, who is black, the chaining and shackling gave rise to inferences of slavery. Upon Clanton reporting the incident, the employees involved were either terminated or severely disciplined.
Pursuant to Fed.R.Civ.P. 17, Defendant moves the Court to amend the caption to reflect the proper corporation name of Defendant, Kirk Blum Manufacturing Co., Inc. That motion is GRANTED.
Ten days later, on September 29, Clanton was laid off. Due to the intermittent basis of his employment, Clanton was regularly laid off and called back to work. In fact, he had been previously laid off on seven separate occasions. In addition, Clanton had been scheduled for lay off on September 13, six days before the September 19 incident. Before the end of 2000, Defendant called Clanton back to work two additional times. He was subsequently laid off again, and did not seek work at Defendant after January 1, 2001. However, based on the testimony of Defendant's shop superintendent Norm Harris ("N. Harris") that Clanton was laid off because of reporting the shackling incident, Clanton believes he was unlawfully retaliated against for engaging in protected conduct.
In this action, Clanton alleges violations of Title VII and 42 U.S.C. § 1981 for race discrimination, hostile working environment, and retaliation.
I. Background
The facts viewed in a light most favorable to Clanton reveal the following. Defendant operates as a sheet metal contractor. Because of the nature of Defendant's business, its need for employees fluctuates throughout the year. [Schneider Affid., ¶¶ 4, 8]. For instance, Defendant employs a group of permanent "core" employees. When additional employees are needed, Defendant utilizes the Sheet Metal Workers International Association, Local Union No. 20 ("Union") hiring list, as well as taking calls from Union employees in search of work to hire "fill-in" employees. [N. Harris. Dep., pp. 13-15]. These employees are hired on an intermittent and temporary basis to satisfy Defendant's fluctuating staffing needs. When work is lacking, Defendant routinely lays off the fill-in employees. [Id. at pp. 13-14].
In May 1997, Clanton began his employment with Defendant as a fill-in employee, and functioned as an industrial worker/welder. [Clanton Dep., p. 81; Schneider Affid., ¶¶ 6-7, 9]. Clanton worked as a fill-in employee on at least ten occasions between May 1997 to December 2000. [Schneider Affid., ¶ 7]. Defendant's shop superintendent N. Harris describes Clanton as a good employee. When a list of available workers came from the Union, N. Harris would "definitely" call Clanton. [N. Harris Dep., p. 20].
On September 19, 2000, while one of Clanton's fellow co-workers, Phil Jones, was helping him weld a pipe together, Defendant's shop foreman, Steve Rogers, attached a hanger band to Clanton's ankle. The hanger band was attached to a chain, which, in turn, was connected to Clanton's weld-cart secured to the floor. [Clanton Dep., pp. 90-91, 96]. With references to the motion picture Amistad, and slavery, Clanton describes the event as a "shackling" incident. [Pl.'s Br., pp. 2-3]. Rogers stated he did it as a joke in light of Clanton's reputation of frequently wandering away from his work area. [Rogers Affid., ¶¶ 6-8]. During the incident, about twenty employees "paraded" past Clanton, pointing and laughing at him. No racial remarks were made to Clanton during the incident, other than a statement by Rogers' father, a journeyman at Defendant, who stated that Clanton should have been chained and shackled before that particular incident. [Clanton Dep., pp. 102-03]. The incident lasted between ten and fifteen minutes. [Id. at p. 92].
After Rogers released the hanger band, Clanton reported the incident to N. Harris. In response, N. Harris conducted an investigation, speaking with both Jones and Rogers, and notifying Defendant's vice president Tim Schneider. [Clanton Dep., pp. 99-102, 107; N. Harris Dep., p. 92]. Later that day, Schneider called a meeting with Clanton, a Union business agent, and Rogers. On behalf of the Defendant, Schneider apologized to Clanton for the incident. Likewise, Rogers apologized to Clanton, and stated the only reason he put the hanger band on him was to make a point that Clanton needed to remain in his work area. [Clanton Dep., pp. 107, 110, 112]. Upon completion of the meeting, Rogers' employment was terminated, Jones received a verbal reprimand, and Clanton was given a paid leave the remainder of the week. [Schneider Affid., ¶ 14].
As shop superintendent, N. Harris was responsible for scheduling employees for work, including calling fill-in employees. [N. Harris Dep., p. 13]. Prior to the September 19 incident, on September 13, 2000, N. Harris sent a facsimile to the Union indicating that four, fill-in white employees were to be laid off effective September 12. [N. Harris Dep., pp. 71-72]. The September 13 facsimile also stated that Clanton, along with three other fill-in white employees, were slated for layoff on September 13. [Id. at 72-73; Ex. 4]. However, the September 13 lay offs never materialized. Rather, Clanton was not laid off until September 29, along with two white fill-in employees. [Schneider Affid., ¶¶ 15-16]. Altogether, in the month of September 2000, fifteen employees were laid off. With the exception of Clanton, all were White. [Id. at ¶ 16].
After the September 29 layoff, N. Harris called back Clanton to work twice; once from October 9 to October 13; and again from November 30 to December 2. [Clanton Dep., pp. 127-30; Schneider Affid., ¶ 7, Ex. 1]. When Clanton was called back to work in October, Schneider reprimanded N. Harris by stating "What's he [Clanton] doing back in the building?" [N. Harris Dep., pp. 54-55]. When Defendant recalled Clanton on November 30, N. Harris received a similar response from Schneider. [Id. at 95]. Previously, during the September 2000 layoffs, Schneider instructed N. Harris: "[M]ake sure when you lay this man [Clanton] off, you don't lay him off singly, put him in a group of people. . . ." [N. Harris Dep., pp. 78-79]. Based on Schneider's instructions, N. Harris states that "we got rid of Larry Clanton because of the incident on the 19th. And we got rid of him in a group of people so it wouldn't look like we were discriminating." [Id. at 83].
N. Harris retired from Defendant at the end of December 2000. Thereafter, on January 1, 2001, N. Harris' nephew, Kevin Harris ("K. Harris"), previously a shop foreman for Defendant, assumed the duties of shop superintendent. [N. Harris Dep., p. 11; K. Harris Affid., ¶¶ 3, 10]. Based on his previous experience, K. Harris did not consider Clanton to be a good worker because he "wandered" around the shop too much. Defendant never called Clanton was never back to work after January 1, 2001. [K. Harris Affid., ¶ 10]. In fact, Clanton never called Defendant after January 1, 2001 regarding potential work. [K. Harris Affid., ¶ 11].
As a result of being laid off and not being called back to work, Clanton filed suit, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., and 42 U.S.C. § 1981. Clanton claims that he was subject to disparate treatment and a hostile working environment because of his race, African American, and that he was subject to retaliation for reporting Defendant's alleged discriminatory acts. For the reasons set forth below, the Magistrate Judge recommends that Defendant's motion for summary judgment be GRANTED on Clanton's discrimination and hostile environment claim, and DENIED on his retaliation claim.
Clanton does allege or present evidence that he was discriminated against for never achieving the designation of core employee. Therefore, any such claim is waived. See Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir. 2002), quoting Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002) ("A party waives any argument that it does not raise before the district court or, if raised in the district court, it fails to develop on appeal.").
Clanton abandoned his Title VII hostile work environment claim in his response to Defendant's motion for summary judgment. [See Def.'s Br., p. 10].
II. Discussion
A. Summary Judgment Standard
Summary judgment obviates the need for trial and is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). When deciding whether summary judgment is appropriate, the Court construes all facts and draws all reasonable inferences in the light most favorable to the nonmoving party. Demos v. City of Indianapolis, 302 F.3d 698, 701 (7th Cir. 2002), citing Albiero v. City of Kankakee, 246 F.3d 927, 931-32 (7th Cir. 2001). The Court's function is not to weigh the evidence but merely to determine if "there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual disputes are "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the [non-movant]." Oest v. Illinois Department of Corrections, 240 F.3d 605, 610 (7th Cir. 2001), quoting Anderson, 477 U.S. at 248.
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies to such cases. See, e.g., Alexander v. Wisconsin Dep't of Health Family Serv., 263 F.3d 673, 681 (7th Cir. 2001); Michas v. Health Cost Controls of Illinois, 209 F.3d 687, 692 (7th Cir. 2000). In any event, the Court will not conduct a "paper trial" on the merit of the claims. Albiero v. City of Kankakee, 246 F.3d 927, 931 (7th Cir. 2001); Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
Although Clanton does not articulate his section 1981 claim in his response brief, he pleaded it as a cause of action in his complaint. However, "[t]he same standards governing liability under Title VII apply to Section 1981." Katial v. Massachusetts Mut. Life Ins. Co., 2002 WL 1632556, *5 (N.D.Ill. July 22, 2002), quoting Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998).
Title VII of the Civil Rights Act of 1964 prohibits an employer from discharging or otherwise discriminating against an employee in the terms, conditions or privileges of employment based on the employee's race. Traylor v. Brown, 295 F.3d 783, 788-89 (7th Cir. 2002), citing 42 U.S.C. § 2000e-2(a). A plaintiff alleging race discrimination under Title VII "can prove such discrimination either by providing direct evidence of an employer's discriminatory intent, or by showing disparate treatment using indirect evidence and the burden-shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Alexander v. Wisconsin Department of Health and Family Services, 263 F.3d 673, 682 (7th Cir. 2001). Clanton proceeds under the McDonnell Douglas framework. Under this test, Clanton must initially demonstrate: (1) he was a member of a protected class; (2) he was meeting his employer's legitimate performance expectations; (3) he suffered an adverse employment action; and (4) other, similarly-situated employees who were not members of the protected class were treated more favorably. See Koski v. Standex Intern. Corp., 307 F.3d 672, 676 (7th Cir. 2002); Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002). In the event Clanton can establish a prima facie case, the burden then shifts to Defendant to provide a legitimate, non-discriminatory reason for its employment decision. Jones v. Union Pacific R. Co., 302 F.3d 735, 742 (7th Cir. 2002). Defendant's burden at this point is one of production only, not one of persuasion. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000). To satisfy this burden, Defendant need only offer "admissible evidence which would allow the trier of fact to rationally conclude that the employment decision had not been motivated by discriminatory animus." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). If Defendant does so, the burden shifts back to Clanton to show that Defendant's stated reason is a pretext for discrimination. Simmons v. Chi. Bd. of Educ., 289 F.3d 488, 492 (7th Cir. 2002). Although the burden of producing evidence shifts between the employee and the employer, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993), quoting Burdine, 450 U.S. at 253.
In his response brief, Clanton did not set forth any particular standard for analyzing his race discrimination claim, nor did he dispute the Defendant's analysis of his case an indirect evidence case by utilizing McDonnell Douglas to access the viability of his claim. Accordingly, the Court likewise utilizes this approach.
1. Similarly Situated Requirement
In this case, Defendant does not dispute that Clanton meets the first three prongs of McDonnell Douglas. Therefore, in order to establish a prima facie case of race discrimination, Clanton must meet the similarly situated requirement. In order to meet this burden, Clanton must show that there is someone directly comparable to him in all material aspects who received more favorable treatment. Patterson v. Avery Dennison Corp., 281 F.3d 676, 679 (7th Cir. 2002). In considering material aspects, the "court must look at all relevant factors, the number of which depends on the context of the case." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). Clanton has the burden of proof on the similarly situated element. See Bellaver v. Quanex Corp., 200 F.3d 485, 494 (7th Cir. 2000).
Here, Clanton fails to establish a prima facie case because he did not present evidence that similarly situated White employees were treated more favorably in either being laid off or called back to work. Throughout his employment with Defendant, Clanton served as a fill-in employee. Because Defendant's needs for fill-in employees fluctuated, Clanton, as well as other fill-in employees, were called to work on an intermittent basis. When the service of fill-in employees was no longer needed, they were laid off. In fact, Clanton had been laid off work on seven different occasions leading up to the September 19 incident. [Def.'s Br., p. 19; Clanton Dep., p. 25]. In reviewing the layoffs that occurred in September 2000, Clanton simply cannot establish that similar situated White fill-in employees received favorable treatment.
For instance, when Clanton was laid off on September 29, two other fill-in White employees accompanied him. [Schneider Affid., ¶¶ 15-16]. During the comparative time period, in the month of September 2000, fifteen employees were subject to lay off. All but Clanton were White. [Schneider Affid., ¶ 16]. Likewise, in the event Clanton claims discrimination because Defendant did not call him for work after January 1, 2001, his pursuit to establish the similarly situated element also fails since he does not provide any evidence that White employees were called back to work while he was not.
Clanton's attempt to establish the similarly situated requirement rests on two bases. First, Clanton cites statistical evidence reflecting the ratio of white to black employees at Defendant. Schuster v. Shepard Chevrolet, Inc., 2002 WL 507130, *1 (N.D.Ill. Apr. 3, 2002) ("The usefulness of statistics in an individual treatment case to show pretext `depends on all the surrounding facts and circumstances.") (citation omitted). According to Clanton, of Defendant's thirty employees, only two were black (which amounts to only 6.66% of its work force, as opposed to the black population in Marion County, which is 24.2%). [Def.'s Br., p. 2]. Clanton may certainly utilize statical evidence to establish a prima facie case of discrimination. See, e.g., Equal Employment Opportunity Com'n. v. Preferred Management Corp., 2002 WL 337046, 90 (S.D.Ind. Mar. 1, 2002), quoting Bell v. Environmental Protection Agency, 232 F.3d 546, 553 (7th Cir. 2000) ("[T]he Seventh Circuit has stated that: In a pattern or practice disparate treatment case, statistical evidence constitutes the core of a plaintiff's prima facie case."); Guerrero v. Ashcroft, 253 F.3d 309, 315-16 (7th Cir. 2001) ("We have found statistical evidence to be admissible and helpful in disparate treatment cases. . . ."). However, Clanton's statistical data does not state whether the thirty employees were either core or fill-in employees. Thus, there is no basis for this Court to conclude that these comparison employees Clanton points to are similarly situated to him. Moreover, the proffered statistical evidence does not rebut the fact that Clanton was the only black employee laid off in September 2000. In addition, statistically speaking, the September 2000 layoffs adversely impacted whites overwhelmingly more than blacks considering that of the fifteen employees laid off, fourteen were White. [Schneider Affid., ¶ 16].
To support his statistical evidence argument, Clanton cites Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988). However, Watson is a disparate impact case. Clanton failed to properly plead that Defendant's employment decisions had a disparate impact on blacks. Therefore, any such claim is waived. Even if Clanton did plead a disparate impact theory, he fails to establish a sufficient set of facts to establish such a claim. For instance, the statistical evidence Clanton cites is based on the general population, and proves nothing about the availability of black welders who are members of the Union, the pool of employees from which Defendant drew its fill-in employees. See Wards Cove Packing v. Atonio, 490 U.S. 642, 650 (1989) (the proper comparison is, in employment discrimination cases, "between the racial composition of [the at-issue jobs] and the racial composition of the qualified . . . population in the relevant labor market."); See also Equal Employment Opportunity Commission v. Miniature Lamp Works, 947 F.2d 292, 302 (7th Cir. 1991) ("Properly identifying the relevant labor market is the key ingredient in proving Title VII discrimination through the use of statistics.").
Second, Clanton states that the job of sweeping floors was a job that nobody liked, and was usually rotated among the employees. Although Clanton testifies that he "did a lot of sweeping," this argument also fails. [Pl.'s Br., pp. 6-7]. Notwithstanding Clanton's testimony that he did not mind sweeping the floor, he does not provide any evidence that other White fill-in employees performed this duty less than he did. [Clanton Dep., pp. 67-68; Def.'s Reply, pp. 14-15].
Since Clanton fails to met the evidentiary threshold of establishing that similarly situated white employees received favorable treatment, summary judgment is appropriate on his race discrimination claim. See, e.g., Jones v. Union Pacific R. Co., 302 F.3d 735, 741 (7th Cir. 2002) ("We have often noted that establishing a prima facie case — which the plaintiff must do by a preponderance of the evidence — is a condition precedent to the pretext analysis."); Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002) (same); Lim v. Trustees of Indiana University, 297 F.3d 575, 581 (7th Cir. 2002) (because plaintiff failed to meet the similarly situated requirement, Seventh Circuit affirmed the district court's granting of summary judgment without reaching the issue of pretext).
2. Pretext
Assuming, arguendo, that Clanton could establish a prima facie case of race discrimination, the Court proceeds to the issue of pretext. Clanton may satisfy this element "with evidence that the defendants were more likely than not motivated by a discriminatory reason or that their explanations are not worthy of credence, i.e., they are factually baseless, did not actually motivate the defendants, or were insufficient to motivate the adverse employment action." O'Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002). See also Reeves, 530 U.S. at 143 (to show pretext, plaintiff bears the burden of demonstrating that the employer's ostensible justification for its decision is unworthy of credence).
Pretext will not be found in an ill advised or incorrect decision. See Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000). The Court "does not sit as a super personnel department to review an employer's business decisions." Ransom v. CSC Consulting, Inc., 217 F.3d 467, 471 (7th Cir. 2000). Instead, the Court examines the record to see if there is evidence that the employer is lying to cover up illegal discrimination. See Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012-13 (7th Cir. 2000).
Defendant states it laid off Clanton and did not call him back to work because it lacked work. [Def.'s Br., p. 20]. Clanton fails to demonstrate that Defendant's proffered reason for laying him off is pretextual. Defendant's fluctuating need for employees is unrebutted as Clanton's designation as a fill-in employee. Likewise, it is undisputed that previous to the September 19 incident, Defendant laid Clanton off on seven previous occasions. [Schneider Affid., ¶ 7]. As Defendant suggests, Clanton's intermittent employment was "par for the course." [Def.'s Reply, p. 16]. Moreover, it is undisputed that Clanton was scheduled to be laid off on September 13 along with three other fill-in White employees, six days before the September 19 incident. [N. Harris Dep., pp. 71-73; Ex. 4]. When Clanton was laid off on September 29, two White fill-in employees accompanied him. [Schneider Affid., ¶¶ 15-16]. In September 2000, Defendant laid off fifteen employees. All but Clanton were white. [Id. at ¶ 16]. After being laid off on September 29, Clanton was called back to work on two separate occasions: from October 9 to October 13, 2000, and from November 30 to December 2, 2000. [Schneider Affid., ¶ 7]. This undisputed factual scenario eviscerates Clanton's claim of pretext.
As to Defendant's decision not to call Clanton back to work after K. Harris assumed the duties of shop superintendent on January 1, 2001, K. Harris testifies that he did not consider Clanton to be a good employee due to his tendency to "wander" away from his work space. [K. Harris Affid., ¶ 10]. K. Harris formed this belief based on his previous experiences with Clanton while he served as Defendant's shop foreman since 1993. [Id. at ¶ 10]. In response, Clanton does not contest that he wandered out of his work space. Rather, he states that his work performance did not become an issue until the September 19 incident. [Pl.'s Br., pp. 4, 8]. However, Clanton fails to attack the honesty of Defendant's belief that it perceived Clanton's work performance as deficient, or that its belief "completely lack[ed] a factual basis." Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012-13 (7th Cir. 2000); Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000). Perhaps most telling, K. Harris testified that after January 1, 2001, Clanton never contacted him about employment with Defendant. [K. Harris Affid., ¶ 11]. Defendant certainly had no duty to seek Clanton's services if he did not wish to be considered for recall.
As addressed above, Clanton's statistical evidence is unpersuasive. Even assuming Clanton's statistical evidence supports his disparate treatment claim, such evidence, standing alone, is seldom enough to establish pretext. See, e.g., Bell v. E.P.A., 232 F.3d 546, 553, 556 (7th Cir. 2001) (to see if the statistical evidence shows a causal relationship suggesting a protected classification makes a difference in employment decisions); Guerrero v. Ashcroft, 253 F.3d 309, 315 (7th Cir. 2001) (while statistical evidence is admissible and helpful, standing alone, it does not prove pretext).
Clanton further attempts to establish pretext by stating that during the September 19 incident, there were "racist remarks." [Pl.'s Br., pp. 2, 5]. However, a review of Clanton's cited deposition testimony (pages 53, 66-67, 79-80, 97, 102-03), does not support Clanton's assertion that any of Defendant's workers uttered racial epithets. The only comment that could conceivably be construed as racial in nature was made by Rogers' father, a journeyman at Defendant, who commented that Clanton should have been chained and shackled before the incident. Even viewing the facts in a light most favorable to Clanton, this does not amount to a racially suggestive remark. See, e.g., Lenoir v. Roll Coater, Inc., 841 F. Supp. 1457, 1460-61 (N.D.Ind. 1992, aff'd., 13 F.3d 1130, 1132 (7th Cir. 1994) (summary judgment granted in a harassment case where supervisor made the comment "all black women are double trouble"); McCarthy v. Kemper Life Ins. Companies, 924 F.2d 683, 687 (7th Cir. 1991) (use of the words "you people" do not show that an action was motivated by race); Bourn v. Federal Express Corporation, 2000 WL 1364412, *3 (N.D.Ill. 2000) (comment that "you people from the Novak area are very lazy" not racially suggestive). In addition, Rogers was not a decisionmaker in Clanton's lay off. See Simmons v. Chicago Bd. of Educ., 289 F.3d 488, 492 (7th Cir. 2002) ("statements by nondecision-makers cannot satisfy a plaintiff's burden of proving discrimination."); McDaniel v. EagleCare, Inc., 2002 WL 655691, *9 (S.D.Ind. Mar. 8, 2002), citing Hunt v. City of Markham, Ill., 219 F.3d 649, 652-53 (7th Cir. 2000) ("When a decision maker, or someone who provides input into the decision in question, makes a discriminatory remark (1) around the time of, and (2) in reference to, the adverse action complained of, this may raise a reasonable inference that the decision had an impermissible discriminatory motivation."). Other than Rogers' comments, Clanton does not articulate any other individuals who uttered racial remarks. As a result, Clanton's statements in his brief that "[t]here were racist remarks"amount to nothing more than self-serving, conclusory allegations, and should not be considered as evidence. See, e.g., Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 615 (7th Cir. 2001) (plaintiff is not permitted to submit self-serving conclusory testimony or "uncorroborated generalities" to satisfy evidentiary burden in a Title VII claim); Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) (court must disregard on summary judgment self-serving statement without factual support in the record).
Finally, Clanton relies heavily on the testimony of N. Harris, the former shop superintendent. N. Harris testified that there was a "plan" to terminate Clanton. "[W]e got rid of Larry Clanton because of the incident on the 19th. And we got rid of him in a group of people so it wouldn't look like we were discriminating." [N. Harris Dep., p. 83]. In addition, N. Harris testified that he was reprimanded for calling Clanton back to work after the September 19 incident. [N. Harris Dep., pp. 54-55]. However, N. Harris' comments support a retaliation claim rather than a discrimination claim, considering the employees laid off in the month of September 2000 were white with the exception of Clanton.
As Defendant concedes, the events surrounding September 19 were "an unfortunate display of poor judgment." However, Clanton simply fails to establish that his race was a motivating factor in Defendant's decision to lay him off or not call him back to work, or that Defendant's reasons were false, and that the real reason was discrimination based on race. See, e.g., Jones v. Union Pacific R. Co., 302 F.3d 735, 742 (7th Cir. 2002) (to establish pretext, plaintiff must show that his race was the determining factor in his discharge, or that but for his race he would not have been discharged); King v. Preferred Technical Group, 166 F.3d 887, 892-93 (7th Cir. 1999) (Plaintiff must produce "significantly probative admissible evidence" from which the trier of fact could infer that the employer's reason was false and that the actual reason was discriminatory). To the contrary, Defendant delayed his eventual layoff, called him back to work twice, and under new management commencing January 1, 2001, determined that his work performance did not merit his continued, intermittent employment even if he would have contacted Defendant about employment.
As a result, the Magistrate Judge recommends that Defendant's motion for summary judgment on Clanton's race discrimination claim be GRANTED.
C. Retaliation Claim
Title VII makes it unlawful for any employer to discriminate against an employee for opposing a practice made unlawful by that statute. Polk-Henderson v. Illinois Nurses Ass'n, 2002 WL 31300411, *5 (N.D.Ill. Oct. 11, 2002), citing 42 U.S.C. § 2000e-3(a). Recently, the Seventh Circuit created "a new rule for the adjudication of retaliation cases." Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th Cir. 2002), cert. denied, ___ S.Ct. ___, 2002 WL 1574823 (U.S. Oct. 7, 2002). Under the new standard, there are two methods for analyzing retaliation claims. The first method is referred to as "the more straightforward" of the two and is unrelated to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. at 644. Under this approach, a plaintiff must "present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity . . . and as a result suffered the adverse employment action of which he complains." Id. If the plaintiff's evidence is uncontradicted, then he is entitled to summary judgment. But if the plaintiff's evidence is contradicted, then the case must be tried, unless the defendant produces unrebutted evidence that it "would have taken the adverse employment action against the plaintiff even if [it] had had no retaliatory motive[.]" Id. If the defendant offers such evidence, then it is entitled to summary judgment because it "has shown that the plaintiff wasn't harmed by retaliation." Id. See also Alexander v. Wisconsin Dept. of Health and Family Services, 263 F.3d 673, 682-82 (7th Cir. 2001) (incorporating same analysis in a Section 1981 retaliation claim).
The Court notes that although Stone unambiguously set a new standard for a plaintiff establishing a retaliation case, some courts have declined to follow it. For instance, in Fine v. Ryan Intern. Airlines, 305 F.3d 746, 752 (7th Cir. 2002), the Seventh Circuit upheld a jury verdict in a retaliation case by utilizing the previous standard, which is: (1) she engaged in statutorily protected expression; (2) the plaintiff suffered an adverse action at the employer's hands; and (3) there was a causal link between the two. See also King v. Principi, 2002 WL 31163666, *3 (N.D.Ill. Sept. 27, 2002) (utilizing this three-part analysis). Even if the Court were to analyze Clanton's case under the previous standard, his claim still fails because he cannot establish a causal link between the reporting of the September 19 incident to his layoff because: (1) he was slated for layoff on September 13, six days before he reported the incident; (2) he was called back to work twice after he was laid off on September 29; and (3) he did not seek work from Defendant after January 1, 2001.
In this case, the Court analyzes Clanton's retaliation under both the direct and indirect methods of proof.
1. Direct Evidence of Retaliation
The Seventh Circuit has held that direct evidence in a Title VII case is:
evidence which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption. If the evidence consists of isolated statements, those statements should be causally related to the . . . decision making process, for direct evidence relate[s] to the motivation of the decisionmaker responsible for the contested decision. Remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based on illegal criteria will suffice as direct evidence of discrimination even if the evidence stops short of a virtual admission of illegality.
Walker v. Glickman, 241 F.3d 884, 888 (7th Cir. 2001), quoting Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999). See also Fyfe v. City of Fort Wayne, 241 F.3d 597, 601 (7th Cir. 2001), quoting Kennedy v. Schoenberg, Fisher Newman, Ltd., 140 F.3d 716, 722-23 (7th Cir. 1998) ("Direct evidence is that which, if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption, and usually takes the form of an acknowledgment of discriminatory intent by the employer.").
Viewing the facts in a light most favorable to Clanton, utilizing the direct evidence method, the Court finds that Clanton presents an issue of fact as to whether he was a victim of retaliation for reporting the shackling incident on September 19. The Court is particularly troubled by the deposition testimony of N. Harris. For instance, as the shop superintendent, N. Harris was responsible for the scheduling fill-in employees for work. During the September 2000 layoffs, Schneider instructed N. Harris: "[M]ake sure when you lay [Clanton] off, you don't lay him off singly, put him in a group of people. . . ." [N. Harris Dep., pp. 78-79]. After Clanton's September 29 layoff, N. Harris called Clanton back to work twice. On both occasions, Schneider reprimanded N. Harris, stating "What's he [Clanton] doing back in the building?" N. Harris took this to mean that he should not call Clanton back to work. [N. Harris Dep., pp. 54-55, 95]. Ultimately, N. Harris, a decisionmaker, testified that "we got rid of Larry Clanton because of the incident on the 19th. And we got rid of him in a group of people so it wouldn't look like we were discriminating." [Id. at 83]. See, e.g., Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000) (in the context of Title VII, direct evidence "essentially requires an admission by the decision-maker that his actions were based upon the prohibited animus."); Rizzo v. Sheahan, 266 F.3d 705, 714 (7th Cir. 2001) ("When a plaintiff proceeds under the direct proof method, allegedly discriminatory statements are relevant only if they are both made by the decisionmaker and related to the employment decision at issue."). Although Defendant frames N. Harris as a bitter, disgruntled, former employee, any potential bias N. Harris may possess may prove fatal at trial, the Court cannot and will not resolve this issue at the summary judgment stage. See System Management Arts Inc. v. Avesta Technologies, Inc., 160 F. Supp.2d 580, 585 (S.D.N.Y. 2001) ("bias is a factor used to assess a witness's credibility, which is traditionally a matter for the finder of fact").
Clanton's complaint does not set forth a specific paragraph indicating that he is proceeding under a direct evidence theory in his retaliation claim. Nor does he argue this point in his opposition to Defendant's motion for summary judgment. However, in this instance, the Court deems it appropriate to analyze Clanton's retaliation claim of one of direct evidence. Indeed, the Supreme Court has rejected a heightened pleading requirement in an employment discrimination case. See, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511-12 (2002) ("It thus seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.").
2. Indirect Evidence of Retaliation
However, the Court finds that summary judgment is appropriate when Clanton's retaliation claim is analyzed under the McDonnell Douglas burden-shifting framework. Under this approach, a plaintiff must demonstrate that: (1) he engaged in statutorily protected activity; (2) he performed his job according to his employer's legitimate expectations; (3) despite meeting his employer's legitimate expectations, he suffered a materially adverse employment action; and (4) he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Stone, 281 F.3d at 644. If a plaintiff makes this showing, the burden shifts to the defendant to state a legitimate reason for the action. Id. If the defendant does so, the burden shifts back to the plaintiff to show that the defendant's stated reason is pretextual. Id. See also Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, *550 (7th Cir. 2002) (adopting Stone); Matheny v. Reid Hosp. Health Care Services, Inc., 2002 WL 655702 (S.D.Ind. Mar. 12, 2002) (same).
1. Similarly Situated Requirement
In this case, the only hurdle Clanton must clear to meet a prima facie case of retaliation under the indirect method of proof is the similarly situated requirement. [Def.'s Br., p. 15]. However, similar to his underlying discrimination claim, Clanton fails to demonstrate that he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Two undisputed facts doom Clanton's pursuit to establish the similarly situated requirement. First, when Clanton was laid off on September 29, he accompanied two other White fill-in employees. [Schneider Affid., ¶¶ 15-16]. Second, of the fifteen employees laid off in the month of September 2000, all but Clanton were white. [Id. at ¶ 16]. The Court need not reach the issue of pretext. Clanton's failure to establish the similarly situated element, standing alone, entitles Defendant to the entry of summary judgment on his retaliation claim. See Hilt-Dyson v. City Of Chicago, 282 F.3d 456, 465 (7th Cir. 2002) (failure to establish any one of the prima facie elements results in the entry of summary judgment to the defendant).
The Court concludes that Clanton may prevail at the summary judgment stage on his retaliation claim by utilizing direct evidence. Accordingly, the Magistrate Judge recommends that Defendant's motion for summary judgment on Clanton's retaliation claim be DENIED.
III. Conclusion
The Magistrate Judge recommends that Defendant's motion for summary judgment as to Clanton's discrimination and hostile environment be GRANTED, and DENIED on Clanton's retaliation claim. The Defendant's motion to amend the caption to reflect the Defendant's proper corporation name be GRANTED.
IV. Notice to the Parties
Any objections to the Magistrate Judge's report and recommendation shall be filed with the Clerk in accordance with 28 U.S.C. § 636(b)(1). Failure to file timely objections within ten days after service shall constitute a waiver of subsequent review absent a showing of good cause for such failure.
So ordered.