Opinion
Case No. 96 C 4167
September 18, 2000
MEMORANDUM OPINION AND ORDER
This case involves a charge of Title VII race discrimination and retaliation brought by Plaintiff Cliffort D. Lomack against Defendant Chicago Housing Authority. Plaintiff alleges that various job transfers which occurred while he was employed by Defendant were effectively demotions motivated by racial discrimination, and that he was ultimately fired in retaliation for opposing that discrimination. Defendant claims that Plaintiff's transfers were actually promotions, not demotions, and that he was ultimately laid off as part of a massive reduction-in-force in which 392 employees were laid-off.
The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on Defendant's Motion for Summary Judgment. For the reasons explained below, Defendant's Motion for Summary Judgment is GRANTED.
I. PROCEDURAL BACKGROUND
Defendant filed a Memorandum in Support of its Motion for Summary Judgment on September 25, 1998, including a Statement of Uncontested Material Facts. However, in his Response, Plaintiff failed to address each of the numbered paragraphs in Defendant's statement as required by Local Rule 12(N). By order of the Court, Plaintiff submitted a 12(N) statement on January 11, 1999. Subsequently, Plaintiff and Defendant submitted numerous documents containing responses to each other's statements of uncontested material facts. While technically there is no procedure in the local rules allowing a plaintiff to set forth additional facts beyond those in his response, the Court allowed them in light of Plaintiff's pro se status. In the interest of fairness, the Court also allowed Defendant to respond. It is from this collection of documents that the above facts have been derived. The facts are undisputed unless otherwise indicated.
Plaintiff Cliffort D. Lomack is a former employee of Defendant Chicago Housing Authority ("CHA"). (Def's 12(M) Statement ¶ 2.) Plaintiff was employed with the CHA from September 1991 to October 1995. (Id.) Plaintiff filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") on May 11, 1993, alleging that he had been discriminated against by the CHA. (Id., ¶ 4.) In his complaint, Plaintiff contended that he had been demoted from his position as Assistant Field Superintendent to that of Coordinator because of his race, and that such action was in violation of Title VII of the Civil Rights Act of 1964. (Id.) The EEOC dismissed Plaintiff's complaint on May 23, 1995. (Id., ¶ 5.) At that time, the EEOC mailed to Plaintiff a notification letter explaining that his charge had been dismissed and that he had ninety days in which to file a lawsuit concerning the allegations with which he charged the CHA. (Id.) On September 21, 1995, Plaintiff was informed that his position with the CHA was to be eliminated effective October 20, 1995. (Pl.'s Am. Compl. ¶ 8.) Plaintiff filed another complaint with the EEOC on November 18, 1995, alleging that he had been laid off in retaliation for filing his earlier EEOC complaint of May 11. (Def's 12(M) Statement ¶ 6.)
Effective September 1, 1999, Local General Rule 12 was changed to LR 56.1. As this motion was filed and briefed prior to the effective date of the new rule, the parties submitted Rule 12, rather than LR 56.1, statements. To avoid confusion, this Court will refer to the various fact statements as the parties do.
Plaintiff does not dispute that the EEOC mailed the notification letter in May of 1995, but contends that he did not receive the letter until almost a year later. (Pl.'s Mem. in Supp. of Pl.'s Objection to Mot. for Summ. J. dated 1/11/99.)
Plaintiff initiated the present lawsuit on July 10, 1996. His Complaint consists of two counts. The first is an action for discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964. (Pl.'s Am. Compl. ¶ 1.) The second is a charge of retaliation "for his opposition to discrimination in violation of Title VII of the Civil Rights Act of 1964." (Pl.'s Am. Compl. ¶ 10.)
II. FACTUAL BACKGROUND
Plaintiff, an African American, began his employment with the CHA on September 30, 1991 in the capacity of a temporary laborer. (Def.'s 12(M) Statement ¶ 8.) In this initial assignment under the CHA's Construction Management Department, Plaintiff earned $31,354.96 per year repairing and rehabilitating CHA properties. (Id. ¶¶ 8, 9.)
In early 1992, the CHA created a Vacancy Reduction Program within the department in which Plaintiff was employed. (Def.'s 12(M) Statement ¶ 11.) The Vacancy Reduction Program was designed to repair and rehabilitate CHA properties that had been vacant for a number of years and had fallen victim to weather damage and/or vandalism. (Id.) Andy Rodriguez, who acted as the Director of the Construction Management Department from 1991 to 1995, also acted as the Director of the Vacancy Reduction Program. (Id. ¶¶ 10, 11.)
Plaintiff was transferred to the Vacancy Reduction Program on January 2, 1992. (Def.'s 12(M) Statement ¶ 12.) With this transfer, he was given the title of Assistant Manager, earning a salary of $36,716.68 per year. (Id. ¶ 13.) The paperwork associated with Plaintiff's transfer indicated that his position in the Vacancy Reduction Program would terminate when the program's funding had run out. (Id. ¶ 12.)
Timothy Foran, who is Caucasian, assumed the position of Construction Coordinator on March 9, 1992 with an annual salary of $34,964.00. (Def.'s 12(M) Statement ¶ 14.) Plaintiff received a pay raise effective January 10, 1993, bringing his salary to $39,709.09 per year. (Id. ¶ 15.) Foran's salary at that time had increased to $37,601.00. (Id. ¶ 16.) Several months later, on April 19, 1993, Foran was promoted to Construction Coordinator Supervisor, earning an annual salary of $39,656.19. (Id. ¶ 17.)
The CHA hired Patrick Durkin, who is also Caucasian, on May 3, 1993 in the position of General Superintendent of the Construction Management Department. (Def's 12(M) Statement ¶ 18.) As General Superintendent, Durkin received an annual salary of $52,000 and was responsible for overseeing CHA property rehabilitation and construction. (Id. ¶¶ 18, 19.)
On July 30, 1993, Plaintiff moved into the position of Superintendent of Buildings and Grounds as part of the Inspectional Services Department, a division of the Construction Management Department. (Def.'s 12(M) Statement ¶ 20.) Along with this move, Plaintiff received a salary increase to $42,488.71 per year. (Id.) In January of 1994, he received a bonus of $817.31. (Id. ¶ 21.) On May 27, 1994, Foran resigned from the CHA. (Id. ¶ 22.)
A little over a year later, the CHA underwent some structural changes. On May 30, 1995, the Board of Commissioners of the CHA resigned, leaving the agency to be supervised and managed by the United States Department of Housing and Urban Development ("HUD"). (Def.'s 12(M) Statement ¶ 20.) Beginning on May 30 and continuing through October of 1995, HUD began to replace the CHA's executive staff (Id. ¶ 24.) Mound this time, John Nelson, an African-American, was hired as Deputy Executive Director for Operations. (Id.) As part of his plan to reorganize the CHA's operating structure, Nelson initiated plans for an employee reduction program, necessitated by budgetary constraints. (Id. ¶ 25.) In August of 1995, Nelson directed Kevin Krug, the CHA's Labor Relations Manager, to effectuate the reduction program. (Id. ¶ 26.)
Krug conducted the layoff in late October of 1995, resulting in the discharge of 392 employees. (Def.'s 12(M) Statement ¶ 28.) The group of employees who were discharged was comprised of various races and ethnic groups, and included both employees who had filed charges against the CHA, and those who had not. (Id.) Plaintiff was laid off at this time. (Id. ¶ 30.)
III. DISCUSSION
Defendant raises three arguments in support of its Motion for Summary Judgment. First, Defendant contends that Count I of Plaintiff's Complaint is untimely because he failed to bring suit within ninety days of receiving the EEOC's "right to sue" letter regarding his 1993 discrimination charge. Second, Defendant contends that Plaintiff is unable to establish a prima facie case of discrimination based on race with respect to his alleged demotion or with respect to any of the issues raised in his deposition of August 19, 1997. Third, Defendant contends that Plaintiff is unable to establish a prima facie case of retaliation.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 mandates the entry of summary judgment "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 the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986). "A party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial." Id. at 256.
B. Defendant's Motion for Summary Judgment
Defendant raises three arguments in support of its Motion for Summary Judgment. The Court addresses each of them in turn.
1. Count I of Plaintiff's Complaint is Untimely
First, Defendant argues that Count I of Plaintiff's Complaint is untimely because he failed to bring suit within ninety days of his receipt of the EEOC's right to sue letter regarding his 1993 discrimination charge. Defendant asserts that Plaintiff does not deny receiving the EEOC's May 23, 1995 right to sue letter, and that, moreover, he acknowledged that he knew about the EEOC's dismissal of his complaint as early as November of 1995. (Def.'s Mem. Supp. of Def.'s Mot. Summ. J. at 7.) In his Amended Complaint, Plaintiff addresses this threshold issue by stating that it was not until April 25, 1996 that he "received the investigative file which contained a `right to sue letter' dated May 23, 1995." (Pl.'s Am. Compl. ¶ 3.) Though Plaintiff concedes that the letter was indeed dated May 23, 1995, he contends that he did not receive the letter until the file containing the letter was sent to his attorney almost a year later. (Mem. Supp. of Pl.'s Objection to Mot. Summ. J., dated 1/11/99, at 7.) Plaintiff argues that his Complaint filed on July 11, 1996 was filed well within the ninety-day period. (Id. at 3.) However, in his Complaint, Plaintiff acknowledges that in November of 1995, he was made aware of the EEOC's final action in connection with his race discrimination charge of May 11: "On [November 28, 1995], the intake investigator from the EEOC orally informed the Plaintiff that his first case had been `closed.'" (Pl.'s Am. Compl. ¶ 3.)
Plaintiff was not represented by counsel in this mater until the law offices of Gerald Goldman filed an appearance with the EEOC on February 1, 1996. This firm was granted leave to withdraw as counsel for Plaintiff on February 11, 1998.
Section 2000e-2(a)(1) (2) of Title 42 of the United States Code requires that an individual who alleges a violation of Title VII must file a charge of discrimination with the EEOC prior to initiating a civil action in federal court. Only after final agency action and notification thereof to the individual may that individual file a lawsuit, and then, he must file within ninety days of receipt of such notice. 42 U.S.C. § 2000e-5(f)(1). The ninety-day filing requirement is not jurisdictional and functions like a statute of limitations. St. Louis v. Alverno College, 744 F.2d 1314, 1316 n. 2 (7th Cir. 1984). Like a statute of limitations, it is subject to principles of waiver and equitable tolling. Id.
In construing the meaning of "notification" and what constitutes sufficient notification in this context, the Seventh Circuit has held that a plaintiff must actually receive the Notice of Right to Sue from the EEOC before the ninety-day period begins to run. Archie v. Chicago Truck Drivers Union, 585 F.2d 210, 216 (7th Cir. 1978). However, the Seventh Circuit has also held that the "actual notice" rule does not apply to plaintiffs who fail to receive notice through their own fault.Alverno College, 744 F.2d at 1316-17. For example, in Alverno College, the plaintiff did not receive his notice of right-to-sue because he failed to advise the EEOC that his address had changed, which the court found to be his fault. Id. at 1317.
Generally, where the notice is mailed but not initially received by the plaintiff, a three-pronged test is used to determine when the ninety-day period begins:
(1) when the letter is received at the claimant's address by someone other than the claimant, the ninety day period begins to run upon actual receipt of the letter by the claimant;
(2) when the claimant is represented by counsel who receives the letter, the filing period begins to run from the day the attorney actually receives the letter; and
(3) in other cases the court will adopt a "fault approach," where the statutory period begins to run upon some type of fault on the part of the claimant.Bond v. American Med. Assoc., 764 F. Supp. 122, 124 (N.D.Ill. 1991). The first two prongs do not apply in this case. Therefore, the Court must determine whether Plaintiff received his notice of right-to-sue, and if not, if Plaintiff was at fault for his failure to receive his notice.
In this case, Plaintiff simply claims that he never received the notice of right-to-sue, while not challenging Defendant's assertion that it was mailed. Defendant claims that the notice was sent to Plaintiff via certified mail on May 23, 1995. (Def.'s Statement of Uncontested Material Facts, App. C.) While Defendant does include a copy of the Receipt for Certified Mail, which does confirm that the letter was mailed, there is no record of delivery, which Defendant could have obtained at Plaintiff's local post office. Plaintiff submitted in his sworn testimony in his affidavit that he never received the notice of right-to-sue until his file was sent to his attorney in April of 1996. (Aff. of Cliffort D. Lomack, Jr., ¶ 6.) In light of Plaintiff's sworn testimony, the Court finds there to be, at a minimum, an issue of fact as to when the notice of right-to-sue was received.
The Receipt is numbered 998 715 423, which matches the "Certified Mail No." noted at the top of the Notice of Right-to-Sue letter. (Def.'s Statement of Uncontested Material Facts, App. C.)
The Court must, therefore, determine whether Plaintiff was at fault in failing to receive the notice. The Seventh Circuit requires that plaintiffs take reasonable steps to insure receipt of a right-to-sue letter. Plaintiff asserts in his affidavit that he "maintained regular contact with EEOC and other government bodies regarding [his] case." (Id., ¶ 4.) A review of Plaintiff's exhibits reveals that, in response to his inquiries, Plaintiff was given incorrect information regarding the status of his claims. In response to letters sent to President Clinton, Plaintiff received a rather misleading letter on May 31, 1995 from Claire Gonzales, Director of Communications and Legislative Affairs, which stated: "The Chicago office advises us that the investigation of the charge is nearing completion and should be finalized within the next few weeks." The letter further stated that: "Investigator Alfred Johnson soon will contact you to review the available evidence before a final determination is made on your charge." (Pl.'s Objection to Summ. J. Mot., Ex. A.) In fact, the EEOC had already mailed the notification letter dismissing Plaintiff's Complaint on May 23, but the impression left from this letter is that the final determination of Plaintiff's claim was at least several weeks away, and that Plaintiff should not be expecting a decision until he heard from Investigator Alfred Johnson.
Accordingly, the fact that Plaintiff waited until November 29, 1995 before contacting the EEOC again was not negligent, and in fact, the evidence demonstrates Plaintiff made numerous attempts to obtain his file and any determination made by the EEOC on his claim. (Pl.'s Objection to Summ. J. Mot., Exs. B-E.) Therefore, the Court finds that Plaintiff did take reasonable measures to insure his receipt of the right-to-sue letter, and his failure to receive it was not his fault.
The only remaining issue regarding when the ninety-day period began is whether Plaintiff's knowledge of the fact that his first EEOC charge had been closed triggered the start of the ninety-day period. Defendant points out that Plaintiff "acknowledges knowing about the right to sue letter and the administrative closure of the charge by the EEOC in November of 1995." (Def.'s Mem. Supp. Mot. Summ. J. at 7.) Plaintiff does agree that, on or about November 28, 1995, he was orally informed that his first complaint had been dismissed, but that he was not shown a copy of the dismissal notice or right-to-sue letter at that time. (Aff. of Cliffort D. Lomack, Jr., ¶ 7.)
A plaintiff's awareness that the notice of right-to-sue has been issued is insufficient to trigger the start of the ninety-day period when the plaintiff is unaware of the requirement that the lawsuit must be filed within that time period. Trinkle v. Bell Litho., Inc., 627 F. Supp. 764, 765 (N.D.Ill. 1986) (holding that knowledge of the issuance of a right to sue is insufficient to begin the running of the statute of limitations in instances where the plaintiff is not also told of the existence of the ninety-day limitation period). The holding in Trinkle is consistent with Seventh Circuit case law which suggests that "actual knowledge" of the ninety-day limitation period is the "crucial concept." Jones v. Madison Serv. Corp., 744 F.2d 1309, 1313 (7th Cir. 1984). Applying the law ofTrinkle to the case at bar, the fact that Plaintiff had actual knowledge in November of 1995 that his claim had been "closed" does not constitute sufficient notice because there is no evidence to suggest that Plaintiff was also told at that time about the ninety-day limitation period.
Therefore, the Court finds that Plaintiff was without fault for his failure to receive his notice of right-to-sue prior to his attorney's receipt of the file from the EEOC on April 25, 1996. Accordingly, Defendant's Motion for Summary Judgment is denied as to the timeliness issue.
2. Plaintiff Cannot Establish a Prima Facie Case of Racial Discrimination
Defendant next contends that Plaintiff is unable to establish a prima facie case of discrimination based on race with respect to his alleged demotion or with respect to any of the issues raised in his deposition of August 19, 1997. Defendant alternatively argues that even if Plaintiff were able to make out a prima facie case, he is unable to show pretext.
Under Title VII, an employer is prohibited from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000e2(a)(1)(1994). "The central question in any employment discrimination case is whether the employer would have taken the same action had the employee been of a different race . . . and everything else had remained the same." Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir. 1996) (per curiam) (citing Gehring v. Case Corp., 43 F.3d 340, 344-45 (7th Cir. 1994)).
In order to prevail in a race discrimination suit brought under Title VII, a plaintiff must show that the defendant had an intent to discriminate; such a showing may be made through direct or circumstantial evidence, or indirectly, through use of an inferential burden-shifting method. Kormoczy v. Secretary, United States Dep't of HUD, 53 F.3d 821, 823-24 (7th Cir. 1998). The direct method requires a plaintiff to present either direct or circumstantial evidence of discriminatory intent.Wallace v. SMC Pneumatics, 103 F.3d 1394, 1397 (7th Cir. 1997).
In the absence of direct or circumstantial evidence to prove discriminatory intent, a plaintiff may show discriminatory intent indirectly using a burden-shifting method. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802(1973). Use of this method requires first that the plaintiff establish a prima facie case of employment discrimination. To establish a prima facie case in the context of demotion, the plaintiff must show by a preponderance of the evidence that (1) he is a member of a protected class; (2) he satisfied defendant employer's work expectations; (3) he has suffered an adverse employment action; and (4) similarly situated employees outside the protected class were treated more favorably. Id. at 802; Kennedy v. Schoenberg, Fisher Newman, Ltd., 140 F.3d 716, 726 (7th Cir. 1998).
If the plaintiff is successful in making the required showing, the defendant then has the burden to show that the decision that was made with respect to the plaintiff's employment was, in fact, not race-based.McDonnell, 411 U.S. at 804. To this end, it is incumbent upon the defendant to articulate legitimate, non-discriminatory reasons for the alleged adverse action. Kennedy, 140 F.3d at 722.
The burden then shifts back to the plaintiff to show that the defendant employer's proffered reason is a pretext for discrimination. "Pretext means a lie, specifically a phony reason for some action." Plair v. E.J. Brack Sons, 105 F.3d 343, 348 (7th Cir. 1997). In establishing that the proffered reason is "phony," the plaintiff must do more than cast doubt on the defendant's stated reason for its employment decision. Weisbrot v. Medical College of Wis., 79 F.3d 677, 682 (7th Cir. 1996). Rather, he must set forth evidence from which "a rational factfinder could infer that the [defendant] lied about its proffered reasons." Id. Any of the following might be introduced as evidence of pretext: "(1) the proffered reasons are factually baseless; (2) the proffered reasons were not the actual motivation for the [adverse action]; or (3) the proffered reasons were insufficient to motivate the [adverse action]." Wolf v. Buss, Inc., 77 F.3d 914, 919 (7th Cir. 1996).
Defendant argues that the only element of the prima facie case for which Plaintiff is capable of producing evidence is the first, i.e., that Plaintiff is a member of a protected class. (Mem. Supp. of Def.'s Mot. Summ. J. at 8.) Defendant further contends that Plaintiff has set forth no evidence that he was victim of an adverse employment action taken by Defendant. (Id. at 8-9.) Nor has Plaintiff shown that similarly situated employees outside the protected class were treated more favorably than he was. (Id. at 9.) The Court agrees.
Plaintiff alleges that he suffered an adverse employment action at the hands of Defendant. He claims that the "contrived reorganizations limited [his] growth potential." (Mem. Supp. Pl.'s Ob. to Mot. for Summ. J., dated 11/2/98, at 7.) Plaintiff maintains that the "reorganization which resulted in the so-called promotion to Superintendent of Buildings and Grounds pushed [him] to the furthest point in Construction Management's F.A.L. and narrowed [his] responsibilities limiting [his] growth potential with the Authority (CHA). . . ." (Id. at 6.) Additionally, Plaintiff claims that an adverse impact was created when "Tim Foran (white) [was] arbitrarily transferred into [his] Assistant Manager position," (id. at 3), and that the adverse impact was "magnified" when "Patrick Durkin (white) was hired. . . ."(Id. at 4.) In essence, Plaintiff argues that he was effectively demoted as a result of being transferred to a different position pursuant to Defendant's reorganization plan, and that such transfer was tantamount to an adverse employment action.
Plaintiff has failed to show, by direct or indirect evidence, that he suffered an adverse employment action. Adverse employment action does have a fairly expansive definition in the Seventh Circuit. McDonnell v. Cisneros, 84 F.3d 256, 258-59 (7th Cir. 1996). Clearly, when an employee is discharged, or undergoes a reduction in benefits or pay, the employee is a target of an adverse employment action. However "adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well." Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987). For example, in Collins, the plaintiff was transferred to a new department to a position with unspecified duties. At the same time, her office was taken away from her and she was assigned to sit at a desk outside her supervisor's office, where a receptionist is often located. She additionally lost her phone, business cards, and listing in professional directories and publications. The Seventh Circuit found that this combination of circumstances constituted an adverse employment action. Similarly, inDahm v. Flynn, 60 F.3d 253 (7th Cir. 1994), the court found that "a dramatic downward shift in skill level required to perform job responsibilities can rise to the level of an adverse employment action. . . ."
"While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that `an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.'" Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (citing Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). For example, in Spring v. Sheboygan Area School District, 865 F.2d 883 (7th Cir. 1989), the Seventh Circuit found that a principal's humiliation at being transferred to a job where she would share her position with a co-principal did not constitute an adverse employment action because "public perceptions were not a term or condition of [her] employment." Id. at 886. In Flaherty v. Gas Research Institute, 31 F.3d 451 (7th Cir. 1994), the court found that a lateral transfer where the employee's title was changed and the employee was required to report to a former subordinate did not constitute an adverse employment action. Finally, in Smart, 89 F.3d at 442, the court found that negative employment evaluations alone cannot comprise an adverse employment action.
In support of its motion, Defendant submitted evidence that Plaintiff was not demoted, but rather promoted to a position with a higher job grade and a higher salary than the previous one. (Aff. of Sharon Cruse-Boyd, Personnel file of Clifton D. Lomak [sic], Attach. 1.) Further, Defendant submitted evidence indicating that during all periods of time in which Plaintiff and Foran were employed by Defendant, Plaintiff's salary was higher than that of Foran's. (Aff. of Sharon Cruse-Boyd, Personnel file of Cliffort D. Lomak [sic], Attach. 1; Aff. of Sharon Cruse-Boyd, Personnel file of Timothy Foran, Attach. 2.) Plaintiff's transfer simply did not constitute an adverse job action. In fact, the opposite is true. Plaintiff was not adversely affected by the actions of Defendant, but rather, reaped the benefits of those actions by continuing to advance, both in job grade and in annual salary.
Though Plaintiff in his pleadings vehemently argues that he was demoted, he concedes in his August 19, 1997 deposition testimony that the result of his various transfers was, in fact, not a demotion. He acknowledged that his transfer from Assistant Manager to Assistant Field Superintendent was not accompanied by a salary decrease. (Dep. Tr. of Cliffort D. Lomack at 18.) Moreover, when questioned about his allegation that "[t]he reorganization . . . pushed [him] to the furthest point" within the organizational structure, (Mem. Supp. of Pl.'s Objection to Mot. Summ. J., dated 11/2/98, at 6), he explained:
A. Each move or reassignment pushed me further and further away from the position of assistant manager of which the, I guess, policies and procedures for the vacancy reduction program were made.
Q. I'm still not sure I follow you. Can you explain again why the — I didn't understand your answer.
A. I said that each position transfer moved me to a further point in construction management.
Q. Are you talking about on an organizational chart, you were further removed from the manager?
A. That's correct.
Q. Were these titles lateral changes or demotional changes?
A. I accept them as lateral changes because the salary did not change.
(Dep. Tr. of Cliffort D. Lomack, at 22) (emphasis added). With regard to his transfer from Field Inspector to Assistant Superintendent of Buildings and Grounds, Plaintiff explained that the one was a "direct transfer" into the position of the other, and that essentially, the only thing that changed was the title. (Id. at 61.) "[T]he duties and responsibilities remained the same." (Id. at 62.)
Plaintiff's argument that the alleged adverse impact was magnified by the hiring of Patrick Durkin has no merit. Durkin was brought into Defendant's organization as General Superintendent, with a starting salary of $52,000, and a full job grade above that of Plaintiff's at the time of his termination. (Aff of Sharon Cruse-Boyd, Personnel file of Patrick Durkin, Attach. 3.) As General Superintendent, Durkin was responsible for overseeing construction and rehabilitation of all CHA properties. Rodriguez Affidavit, ¶ 9. Moreover, all personnel and managers reported to him. (Id.) Plaintiff's position was not comparable in any way to that of Durkin's. Accordingly, in viewing the record and all reasonable inferences drawn from it in a light most favorable to Plaintiff, the Court concludes that Plaintiff has failed to establish that he suffered an adverse employment action.
Even assuming that Plaintiff was able to establish an adverse employment action, he has failed to demonstrate that similarly situated employees outside the protected class were treated more favorably than he was. He argues that he was "deliberately and wrongfully removed" from his position as Assistant Manager and replaced by Timothy Foran who is white. (Mem. in Supp. of Pl.'s Objection to Mot. Summ. J., dated 1/11/99, at 3.) He further argues that Patrick Durkin, another white man, was hired "off the street" and paid a higher salary than Plaintiff (Id.) Additionally, Plaintiff contends that he was treated less favorably under the supervision of Donald Pettis than were similarly situated employees Garland Walker, Velda Johnson, and Derrick Collins who also reported to Pettis. (Pl.'s Resp. to Statement of Uncontested Material Facts, ¶ 40.) From these allegations, Plaintiff asks the Court to find that similarly situated white employees were treated more favorably than he was.
As discussed in the section above with respect to the adverse employment action prong of the prima facie case, Foran at no time was paid more than Plaintiff. Because Durkin held a position that was clearly not comparable to that of Plaintiff's, Durkin does not fall into the class of similarly situated persons. Nor does Plaintiff's allegation of disparate treatment vis-a-vis employees Walker, Johnson, and Collins satisfy the fourth prong of the prima facie case that similarly situated employees outside the protected class were treated more favorably than he was. Though these employees might well be similarly situated, they are all African American, and hence, are not outside the protected class. Therefore, the Court concludes that Plaintiff has failed to establish a prima facie case of discrimination based on race with respect to his alleged demotion.
Even assuming that Plaintiff was able to establish a prima facie case, he fails to establish pretext for the alleged discrimination. Defendant contends that Plaintiff's job transfers were predicated on budgetary constraints and were made in response to a direct mandate from Deputy Executive Director John Nelson, who was appointed by the United States Department of Housing and Urban Development. (Reply Mem. in Supp. of Def.'s Mot. Summ. J., dated 11/12/98, at 4.) In responding that this reason is merely a pretext for discrimination, Plaintiff argues that he made numerous positive contributions to Defendant's programs including drafting documents for Defendant's Vacancy Reduction Program, compiling labor cost summaries, coordinating trucks and dumpsters, and establishing and operating the base radio station. (Mem. Supp. of Pl.'s Objection to Mot. Summ. J., dated 11/2/98, at 5.) He further contends that reorganization efforts on the part of Defendant "did not increase the efficiency or cost effectiveness of the programs." (Id.) Additionally, Plaintiff cites to the affidavit of Andy Rodriguez to argue that Defendant's proffered reason for his alleged demotion was disingenuous.
Plaintiff has failed to meet his burden of establishing that Defendant's proffered reason is a pretext for discrimination. Notwithstanding Plaintiff's contributions to Defendant's programs, such a showing does not disprove Defendant's explanation for Plaintiff's job transfers. In fact, Defendant contends, and the record shows, that Defendant rewarded Plaintiff for his job accomplishments by consistently moving him into positions with higher job grades and increased annual salaries. (Aff. of Sharon Cruse-Boyd, Personnel file of Cliffort D. Lomak (sic), Attach.1.) In addition, Plaintiff received a bonus in January of 1994. (Id.) The effectiveness of Defendant's reorganization efforts in increasing the efficiency of Defendant's programs is immaterial. Defendant's efforts need not have produced the desired result; they need only constitute a legitimate, non-discriminatory reason for transferring Plaintiff from one position to another.
Finally, Plaintiff cites to the following statement in the affidavit of Andy Rodriquez as evidence that Defendant's proffered reason was pretextual:
[T]he Construction Management Department was reorganized several times in order to accommodate an increasing number of employees employed and the various special programs into which they were hired between 1991 and 1993. The reorganizations were undertaken at my direction and for no other purpose than to address dedicated special program employees and the various conditions on which funding was given by HUD to CHA for the programs.
(Aff. of Andy Rodriguez, ¶ 6.) However, this statement in and of itself falls far short of the required showing that Defendant's proffered reason is not factually based, or is not the actual motivation for Plaintiff's alleged demotion. Moreover, Rodriguez's statement does not speak to racial discrimination in any way. Hence, Plaintiff has failed to establish that Defendant's proffered reason for transferring Plaintiff from one job position to another is a pretext for discrimination. Because Plaintiff has failed to make a prima facie case of discrimination based on race under Title VII, and because Plaintiff has also failed to show that Defendant's reason for the alleged discrimination was pretextual, Defendant is entitled to summary judgment as a matter of law on Count I of Plaintiff's Complaint.
3. Plaintiff Cannot Establish a Prima Facie Case of Retaliation
Defendant next argues that Plaintiff is unable to establish a prima facie case of retaliation. Defendant contends that Plaintiff has failed to show a causal connection between the filing of his discrimination charge with the EEOC and his layoff which occurred approximately 2 1/2 years later. (Mem. Supp. of Def.'s Mot. Summ. J., at 13.) Further, even if Plaintiff was able to establish a causal connection, Defendant argues, the undisputed facts demonstrate that there was a non-discriminatory motive for Plaintiff's layoff. (Id. at 14.) The Court agrees.
Chapter 42 of the United States Code, Section 2000e-3(a) deems it "an unlawful employment practice for an employer to discriminate against any of its employees . . . because [they have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." Claims of retaliation are subject to the same burden-shifting analysis the Court performed in connection with Plaintiff's racial discrimination claim.Alexander v. Gerhardt Enter., Inc., 40 F.3d 187, 195 (7th Cir. 1994);Rennie v. Dalton, 3 F.3d 1100, 1108 (7th Cir. 1993). Hence, a plaintiff must first establish a prima facie case of retaliation. To establish a prima facie case, a plaintiff employee must show that: (1) he was engaged in a protected activity; (2) he suffered an adverse employment action; and (3) a causal connection existed between the protected activity and the adverse action. Jones 3 F. Supp.2d at 918.
A causal link may be established by evidence showing that the discharge took place on the "heels of [the] protected activity." Dev v. Colt Constr. Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994). A substantial lapse of time between a plaintiff employee's protected activity and a defendant employer's adverse action is considered to be "counter-evidence of any causal connection." Johnson v. Univ. of Wis. — Eau Claire, 70 F.3d 469, 480 (7th Cir. 1995). See also Filipovic v. KR Express Sys., Inc., 176 F.3d 390, 399 (7th Cir. 1999) (deeming a four-month period between protected activity and adverse action sufficient to conclude that plaintiff did not establish causal connection).
There is no direct evidence that Defendant's action against Plaintiff was an attempt to retaliate for the discrimination charges Plaintiff filed with the EEOC. Nor is there indirect evidence from which inferences can be drawn to support a finding of retaliation. The paperwork associated with Plaintiff Lomack's transfer specifically indicated that his position in the Vacancy Reduction Program would terminate when the program's funding had run out. (Aff. of Sharon Cruse-Boyd, Personnel file of Cliffort D. Lomak, Attach. 1, at 19.) Further, the significant lapse between the time Plaintiff filed his discrimination charge with the EEOC and his layoff 2-1/2 years later provides strong "counter-evidence" of a causal connection between the two events.
Finally, even if Plaintiff were able to make out a prima facie showing of retaliation, he fails to establish that Defendant's proffered reason for his layoff is a pretext for retaliation. Defendant submits evidence establishing that after HUD assumed management responsibilities of Defendant CHA, it hired John Nelson to facilitate a reorganization of the CHA for budgetary reasons. (Aff. of Kevin S. Krug, ¶¶ 4-9, 11.) This reorganization entailed a general layoff of employees who worked in specific "cost centers," (id. ¶ 11), including the cost center in which Plaintiff was employed. (Id., ¶ 12.) Further, Defendant's evidence shows that hundreds of employees were discharged at the time of Plaintiff's layoff, and that these employees included those who had filed charges with the EEOC as well as those who had not. (Id. ¶ 14.) Thus, Defendant submits that its mission was to reorganize and decrease expenditures, and that Plaintiff's layoff was the result of a "legitimate business decision" rather than the act of retaliation that Plaintiff alleges. (Mem. in Supp. of Def.'s Mot. Summ. J., at 14.)
Plaintiff responds that costs centers are not synonymous with departments. (Pl.'s Resp. to Statement of Uncontested Material Facts, dated 1/11/99, ¶ 27.) Further, Plaintiff responds to Defendant's assertion that hundreds of other employees were laid off in addition to Plaintiff by stating that the titles of employees Velda Johnson and George Vavrek were unchanged, and that these employees continued in the performance of their duties as Superintendents of Buildings and Grounds. (Id., ¶ 28.) However, such responses do not even suggest that Defendant's proffered reason for Plaintiff's layoff was factually baseless or not the actual motivation for Plaintiff's discharge. In fact, Plaintiff submits no evidence from which a rational factfinder might infer that Defendant lied about its proffered reason.
Hence, in viewing the record and all reasonable inferences drawn from it in a light most favorable to Plaintiff, the Court concludes that Plaintiff has neither made a prima facie case of retaliation, nor shown that Defendant's reason for his layoff was pretextual. Therefore, Defendant is entitled to summary judgment as a matter of law on Count II of Plaintiff's Complaint.
IV. CONCLUSION
For the reasons explained above, Defendant's Motion for Summary Judgment is GRANTED.