Opinion
No. 99 C 1261
October 26, 2000
MEMORANDUM, OPINION AND ORDER
Glenda Liner ("plaintiff") has sued her former employer, Dontron, a wholly-owned subsidiary of Donald Crawford Broadcasting Co., ("defendant") for employment discrimination under Title VII and for wrongful termination. Defendant has moved for summary judgment on the Complaint. For the reasons stated below, we grant this motion.
FACTUAL BACKGROUND
The facts are taken from the defendant's statement of facts and plaintiff's response to that statement. We note at the outset that neither party followed the local rule concerning this statement. Many of defendant's asserted "facts" are actually legal conclusions or argument and plaintiff frequently fails to cite the source for her dispute with an asserted fact. We ignore all of defendant's assertions that lack a factual predicate and deem admitted those facts which plaintiff has not controverted in compliance with the local rule.
Glenda Liner, an African-American, began working as an account executive for defendant's gospel radio station WYCA-FM in approximately April, 1993 and worked in that capacity until she was fired. Her duties included selling advertising air time to clients, collecting billings and writing commercials. Taft Harris is the general manager for WYCA and has worked for defendant since 1969. As general manager of the station, he has the authority to establish the policies which govern the procurement of advertising contracts for WYCA. Harris held mandatory meetings on Monday, Wednesday and Friday at 5:30 P.M. with account executives to discuss sales. Account executives could be excused from these meetings only if they obtained Harris' permission beforehand. Despite this policy, plaintiff frequently missed these meetings and was issued a written reprimand for doing so on February 4, 1997 which she acknowledged by signing her name.
Although plaintiff previously had experienced some success in defendant's employ, beginning in 1995 she received a series of reprimands for failing to comply with company policies. (Plaintiff has claimed that the various infractions for which she was reprimanded were not company policies because they were not uniformly enforced, but has not submitted any specific evidence to support this conclusion.) On November 14, 1995, defendant reprimanded her for failing to timely submit sales call reports. On July 17, 1996, plaintiff received a written warning for failing to submit proper original contracts for advertising time. In January, 1997, plaintiff did not follow defendant's procedures concerning a concert promotion and received yet another reprimand. In March, 1996, plaintiff did not submit a contract to Harris for approval before sending it to a client resulting in a reprimand from Harris. Harris would not have approved this contract because the advertising rate was too low. In March, plaintiff also entered into a contract with a client that provided for a straight billing arrangement instead of complying with defendant's policy that clients prepay for their advertising contract. Plaintiff received written reprimands for both of these transgressions. Plaintiff also admitted in her deposition that she was in violation of corporate policy on a number of occasions.
On April 10, 1997, Harris was forced to reprimand plaintiff again for going on vacation and leaving an unpaid balance for a commercial that already had aired. This violation of company policy was followed by several other violations including airing commercials for which contracts had not been signed, informing clients about rates given to other clients and receiving payment for air time in the form of checks made out to her. After Harris learned of this, he told her that any future violations of company policy would result in her termination. Despite this warning, plaintiff failed to follow company policies regarding presentment of her contracts for approval and renewing expiring accounts in a timely fashion. After several more warnings, the owner of the station, Donald Crawford, authorized Harris to fire plaintiff on June 12, 1997 and she was fired on June 27th.
For her own part, plaintiff contends that defendant's reprimands for violations of company policy are evidence of discriminatory harassment. However, with one exception, she does not offer any proof that she was unfairly singled out for unfair treatment or that defendant selectively enforced its policies against her. In fact, she stated more than once during her deposition that Harris sincerely believed that she had violated company policy when he reprimanded her. However, plaintiff does offer the testimony of Patricia Kelly, another discharged co-worker, who testified that plaintiff sometimes was penalized on commission payments because her contracts allegedly did not conform to company practices, but that Kyle Harris had some of the same problems with his contracts, but did not have commissions deducted for these contracts. Surprisingly, defendant does not respond in any way to this assertion.
Plaintiff also offers the testimony of a co-worker, Tara Locke, who stated that Harris had once said that "he was tired of being around all of us women and wanted more more men on this staff so that he could get work done." She also said, however, that Harris said thus in a joking fashion and that Harris was equally hard on men arid women on the staff
Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on May 21, 1997. She alleged that she had been discriminated against on the basis of her sex because defendant had withheld her commissions for violations of company policy and that a similarly situated male employee had not been so disciplined. She also charged that he supervisor had harassed her in unspecified ways. After she was fired, plaintiff filed another charge with the EEOC in which she claimed that she had been retaliated against for filing her original discharge.
After receiving her right to sue letter, plaintiff filed this action. Plaintiff generally alleges that defendant maintains a de facto policy of not promoting women to managerial positions and maintained a hostile work environment. In Count One, she alleges that she was discriminated against (in unspecified ways) on the basis of sex in violation of Title VII. (Plaintiff also alleges a violation of 42 U.S.C. § 1983 which prohibits discrimination under color of state law and is inapplicable to her case.) In Count Two, she claims that her termination was retaliatory in violation of Title VII. In Count Three, she alleges a pendent state claim for wrongful termination.
DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, do not show a genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56 (c). The party seeking summary judgment carries the initial burden of demonstrating an absence of evidence to support the position of the nonmoving party. Doe v. R.R. Donnelley Sons. Co., 42 F.3d 439, 443 (7th Cir. 1994). The nonmoving party must then set forth specific facts showing a genuine issue of material fact and that the moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby. 477 U.S. 242, 252 (1986). A genuine issue of material fact exists only if the evidence is such that a reasonable jury could only return a verdict in favor of the nonmoving party. Celotex Corp. v. Cattrett, 477 U.S. 317, 3223-24 (1986). The plain language of Rule 56 mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to its case and on which it has the burden of proof at trial. The production of only a scintilla of evidence will not suffice to oppose a motion for summary judgment. See Anderson, 477 U.S. at 252.
Defendant first contends that plaintiff's EEOC charge does not encompass the actions about which she complains here and, therefore, we do not have jurisdiction to hear her case. As the Seventh Circuit has stated, "a Title VII plaintiff cannot bring claims in a lawsuit that are not included in her EEOC charge . . . For allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would frustrate the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge." Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). Although a claim in a civil suit need not duplicate the EEOC claim, there must be "a reasonable relationship between the allegations in the charge and the claims in the complaint," and it must appear that "the claim in the complaint can reasonably be expected to grow out of an EEOC investigation of the allegations of the charge." Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir. 2000), quoting Cheek, 31 F.2d at 500.
We agree with defendant that plaintiff's "de facto" discrimination claim charging a general failure to hire and promote women, as well as a failure to promote her, is not reasonably related to her EEOC charge. That charge specifically deals with defendant's deduction of commissions from plaintiff's checks because she disobeyed company policies when it did make those deductions from a similarly situated male's check. Although plaintiff also generally alleges "harassment", it is quite a leap from even that general charge to allegations concerning defendant-wide promotion and hiring decisions, as well as defendant's alleged failure to promote her, and, therefore, we find that this claim is barred.
Defendant makes the same concerning plaintiff's hostile environment claim. Plaintiff's EEOC charge is devoid of language charging that defendant maintained a hostile environment. However, she does generally allege (although without any supporting facts) that her supervisor harassed her. Therefore, we find that, her complaint is "reasonably related" to her charge. We turn now to the merits of plaintiff's claims.
Plaintiff in her complaint claims that defendant did not promote her to a sales manager position, harassed her when it unfairly enforced company policies against her, fired her because of her gender and retaliated against her because she filed an EEOC complaint. As we discussed above, however, plaintiff cannot raise defendant's failure to promote her in federal court without having first raised this claim before the EEOC. That being said, we also note that plaintiff has proffered absolutely no evidence that she was as qualified or more qualified than those promoted instead of her (other than her own opinion), let alone that the promotion decisions were motivated by gender discrimination. Plaintiff's self-serving assessment of her own abilities is not sufficient to defeat summary judgment absent any other proof. Schultz v. General Elec. Corp., 37 F.3d 329, 334 (7th Cir. 1994). This leaves plaintiff's challenge to defendant's decisions to punish her for infractions of its company policies and to fire her before the court.
Title VII makes it unlawful for an employer to discriminate against an employer because of an employee's sex. 42 U.S.C. § 2000e-2 (a)(1). Plaintiff needs proof of intentional discrimination to prevail under a disparate treatment analysis. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). A Title VII plaintiff can satisfy her burden of proof by two avenues: (I) she may present direct evidence of discriminatory intent or, because of the difficulty in directly proving discrimination, (2) she may use the indirect, burden-shifting procedure set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973).
Plaintiff primarily relies on indirect evidence in support of her claim that defendant discriminated against her. However, she also argues that a remark made by Harris is direct evidence of sex discrimination. According to plaintiff's co-worker, Tara Locke, Harris once joked that he wanted more men on his staff so that he could get more work done. However, Locke's further testimony makes it plain that Harris' comment was a joke and that she did not take it seriously. Although this remark was not made with reference to plaintiff, plaintiff argues that we may infer gender discrimination from it because Harris was a decision maker with respect to enforcement of company policies against plaintiff and had input into the decision to fire her. See Hunt v. City of Markham, 219 F.3d 649, 652 (7th Cir. 2000).
Although it is true that stray remarks made by decision makers around the time of the challenged action may constitute evidence of sex discrimination, the reporter of this remark clearly believed it to be a joke and did not take it seriously or believe that it was evidence of any anti-female bias. She further testified that Harris was equally hard on men as women. Given the factual context of this isolated remark, we do not find that it is direct evidence of anti-gender bias.
We, therefore, turn to plaintiff's evidence under the indirect method of proof. To establish a prima fade case of employment discrimination, plaintiff must show that (1) she was in a protected class; (2) she was performing her job satisfactorily; (3) she was the subject of an adverse employment action; and (4) others outside the protected class were treated more favorably. Young v. Will County Dep't. of Public Aid, 883 F.2d 290. 293 (7th Cir. 1997), citing McDonnell Douglas, 411 U.S. at 804. If the defendant establishes a legitimate nondiscriminatory reason for the adverse employment actions, plaintiff must show that the articulated reason is a pretext for discrimination. of course, the ultimate burden of proof remains on plaintiff at all times. Id.
Plaintiff argues that although she was performing her job satisfactorily, Harris unfairly harassed her by arbitrarily enforcing company policies against her. She contends that the alleged corporate policies for which she was penalized were not corporate policies at all, citing Sarsha v. Sears. Roebuck Co., 3 F.3d 1035 (7th Cir. 1993) in support of her position. However, this case is inapposite to the plaintiff's situation. In Sarsha, the Seventh Circuit found that there was a genuine issue of material fact concerning whether a "no dating" policy truly existed. In addition, a defendant correctly notes, the court pointed out that there also was a question as to whether the plaintiff actually had been warned that he was doing something in violation of company policy prior to his termination. In this case, the record is replete with instance after instance when defendant explicitly warned plaintiff that she was violating specifically identified policies and that she would be disciplined if she continued to flaut them. Plaintiff fails to remember anything about the meetings she had with Harris during which she received these warnings, but there is no question that she received them and that she did not heed them. Moreover, plaintiff herself admitted that she violated at least some of these policies, such as submitting contracts to clients which had not been approved first. Thus, the record is replete with evidence that plaintiff was not performing satisfactorily and, other than her own assessment that defendant unfairly evaluated her with respect to these policies, there is no evidence to the contrary.
However, plaintiff has presented some evidence that defendant may have docked her commission checks for certain infractions, while failing to do so with respect to male employees. Patricia Kelly, who reviewed at least some of the contracts, so testified. Unfortunately, plaintiff has not provided any specifics concerning these instances. However, plaintiff argues that this presents a material issue of fact. Assuming that plaintiff was treated, at least in some instances, differently than some of her male counterparts, we must examine defendant's proffered reason for singling her out.
Defendant argues that plaintiff's claim is defeated because she has admitted that Harris disciplined her not because of her sex, but because he honestly believed that she violated company policy. We agree. Plaintiff does not make out a prima facie case for sex discrimination by simply establishing that others not in the protected class were treated differently with respect to at least some of the alleged instances. She must show that the decisions concerning her own discipline were motivated, at least in part, by gender discrimination. Her admission to the contrary necessarily defeats her claim.
Plaintiff also argues that she was terminated because of her sex and in retaliation for filing her first Title VII complaint. Again, the record is clear that plaintiff continually violated several company policies, such as submitting unapproved contracts, receiving checks for contractual commitments made out to her personally, and airing commercials without having contracts on file. She complains that these policies were unfair, but has not presented any evidence that she did not, in fact, violate them. To the contrary, she admits otherwise. Plaintiff has not shown that she was performing satisfactorily. Even assuming she was, she has not presented any evidence that anyone with her record in defendant's employ and not in the protected class was treated any differently.
Plaintiff also claims that her termination was in retaliation for her initial EEOC complaint. It is well-settled that plaintiff's termination need not be discriminatory to establish a retaliatory discharge under Title VII. Plaintiff must prove, however, that she engaged in statutorily protected activity (undisputed); (2) that she suffered an adverse action (undisputed) and (3) a causal link exists between the protected activity and the adverse action. 42 U.S.C. § 2000e-3; Johnson v. Zema Sys. Corp., 170 F.3d 734, 753 (7th Cir. 1999). Once the employee meets her burden, the employer must present a legitimate nondiscriminatory reason for its action. Id. If the employer is successful, the employee must demonstrate that the reason was pretextural and that the true reason was retaliatory.
Defendant received plaintiff's EEOC charge on June 12, 1997. That same day Donald Crawford, defendant's owner, sent Harris a memo instructing his to terminate plaintiff for the next serious violation "irrespective of the consequences to the station." Plaintiff was fired on June 27, 1997. Plaintiff argues that the proximity of these events is evidence of a causal link. However, defendant has submitted reams of evidence, including a series of letters, which inform plaintiff of her violations of company policies, which more than establish that plaintiff was not meeting defendant's expectations. Indeed, over a month before she filed her EEOC charge, defendant informed her in writing that if she violated one more company policy, she would be fired. The undisputed evidence is that after she received this warning, plaintiff submitted contracts in violation of these policies. Defendant, therefore, has demonstrated that her termination was not motivated by retaliation, but rather by plaintiff's dismal performance record. Therefore, we find that defendant has not satisfied her burden of proof to establish a prima facie case for retaliation.
CONCLUSION
For all the forgoing reasons, we grant defendant's motion for summary judgment and terminate this case.
It is so ordered.