Opinion
No. 98 CV 8140
November 15, 2000
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Anne M. Puccini ("Puccini") filed an amended complaint under both Title VII of the Civil Rights Act of 1964, as amended. 42 U.S .C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA") against defendant United Air Lines, Inc. ("United") seeking mandatory injunctive relief and damages. United filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Puccini's response to defendant's motion does not meet the standards set forth in Local Rule 56.1(b)(3)(A) and (B). Despite this failure, this court accepts Puccini sresponse as it stands and will consider her response in the evaluation of this motion. Having considered the matter fully, for the reasons stated herein, United's motion for summary judgment is GRANTED.
PROCEDURAL BACKGROUND
On December 18, 1998, Puccini filed an original complaint with the assistance of counsel Lisa Kane. On August 16, 1999, plaintiff's complaint was dismissed without prejudice on defendant's motion. On September 3, 1999; Puccini filed an amended complaint again with the assistance of counsel Lisa Kane. On January 10, 2000, defendant's motion to dismiss plaintiffs first amended complaint was denied. On March 23, 2000, Ms. Kane's motion to withdraw as counsel was granted. On April 18, 2000, Puccini advised this court that she would proceed with this matter pro se. On August 8, 2000, defendant reported its intention to file a motion for summary judgment by August 25th. This court advised plaintiff of Federal Rule of Civil Procedure 56 and gave plaintiff till September 8, 2000, to respond. On August 25, 2000, defendant's filed this motion for summary judgment. On September 8, 2000, plaintiff responded to defendant's motion. On September 22, 2000, the defendant replied to plaintiffs response. Puccini's response was not in accordance with Rule 56 and the local rules. On October 26, 2000, this court ordered the parties to appear for a status hearing. At that time this court again advised Puccini of Federal Rule of Civil Procedure 56 and Local Rules 56.1 and 56.2, provided Puccini a copy of the rules in open court, and gave Puccini to November 9, 2000 to re-file her response.
STATEMENT OF FACTS
The following facts are undisputed and are from the defendants' Local Rule 56.1(a) statement of material facts and accompanying exhibits. As explained fully later in this opinion, plaintiffs submissions have been accepted and considered in determining this matter. In addition, however, defendant's facts are accepted as true pursuant to Local Rule 56.1(b)(3)(B).
A. Puccini's early employment with United
Puccini was born on November 22, 1936. Puccini returned to work full-time at United on November 21, 1977, as a typist in the Personnel department. Previous to 1977, Puccini worked for United on both a full-time and a part-time basis. From November, 1977 until December, 1986, Puccini worked at various positions in various departments at United. On December 28, 1986, Puccini was in a car accident which rendered her unable to work for several years. United provided Puccini a leave of absence from United to recuperate from her injuries. United, however, terminated Puccini on August 3, 1989 due to her inability to return to work. On January 27, 1992 Puccini entered into a settlement agreement with United concerning her disability. Pursuant to that agreement Puccini agreed to dismiss charges of age discrimination filed against United with the Equal Employment Opportunity Commission and with the California Department of Fair Employment and Housing. In exchange, United awarded Puccini with disability retirement status. Under the terms of the settlement agreement, Puccini agreed that she would never seek a position with United or any of their related companies.
B. Puccini's Return to United
In 1994, Puccini sought temporary contract work with United after receiving information regarding United's Retirees Make a Difference Program. The program invited United retirees to apply for temporary assignments as needed within United. Kathy Kuchl, an employment representative in the Executive and Professional Staffing Department for United, was responsible for placing retirees within departments at United where needed. Retirees were considered strictly contract workers and could not be considered for permanent employment. Puccini understood when she returned to United that she was returning as a retiree working part-time and therefore not eligible to be hired as a permanent employee. Kuehl worked with Puccini in placing her in various temporary assignments with United from 1994 to 1998.
Puccini began her temporary assignments working in the Computer Security Department of Information Services in 1994 until May, 1995. During that time, Puccini wrote a letter to Gerald Greenwald, the then Chairman and Chief Executive Officer of United, dated May 15, 1995 and complained to Greenwald that retired employees working in the program were underpaid by United and that United should offer retirees additional incentives and benefits. On October 23, 1995, Puccini began work as a pension clerk in the Pension Department until December 26, 1995 when she voluntarily ended her assignment for personal reasons. On January 16, 1996, Puccini wrote a letter to the head of the Make A Difference Program and asked to return to work. Following that letter, Puccini returned to United and worked first in the Payroll Department and then in the Flight Attendant Training Center. Subsequently, another temporary position became available in the Payroll Department. Kuehl contacted Payroll to inquire whether they would like to have Puccini return for the new assignment. Departments tended to use the same temporary employees on a repeat basis to save time on training for each new assignment. The Payroll Department, however, informed Kuehl that they did not want Puccini to return because they had experienced problems with Puccini during her previous assignment. In a separate instance, the Flight Training Center complained to Kuehl about Puccini's behavior during her assignment and informed Kuehl that they did not want Puccini to return for another assignment should a new assignment become available. Similarly, the Pension Department informed Kuehl that they did not want Puccini to return for a repeat assignment due to her behavior during her previous assignment.
C. Puccini and the World Headquarters Facilities Department
Despite Puccini's issues with previous temporary assignments, in October 1997, Kuehl offered Puccini a temporary position in the World Headquarters Facilities Department ("WHFD"). Puccini was initially brought in to answer calls on the switchboard, and to assist Tina Hertog, the lead receptionist for WHFD. On December 15, 1997, the WHFD hired Candance Bussell, a regular frill-time employee as a receptionist to assist Tina Hertog and work with Puccini. Hertog supervises the switchboard and reception area and reports to Besty Metcalf, Lead Facilities Service Coordinator. Metcalf reports to Ken Weslander, manager of the WEED responsible for supervising at least 119 non-union employees and over 100 employees represented by the International Association of Machinists Union. Weslander interacts mostly with other department heads, and his direct reports. Weslander rarely provides direct instruction to non-managerial employees regarding their job duties. During the period in which Puccini worked in the WEED, Metcalf was responsible for locating and assigning work for Puccini. While reporting to both Hertog and Metcalf, Puccini at her own request received additional tasks within the WHFD to perform. During January and February, 1998, Puccini assisted Bob Milner, who reports directly to Weslander, in the Vehicle Drivers area. While working with Milner, Puccini involved herself in disputes between union employees and United management and asserted her opinions about matters well outside the scope of her responsibilities. Soon after working with Milner, Puccini wrote a letter to Weslander dated January 8, 1998, detailing what she believed was bad conduct on the part of two union employees, Jeannette Belovics and Cynthia Ribando toward Christine Polities, a United employee. Weslander never requested Puccini to prepare any document regarding Belovics or Ribando. Weslander informed Puccini that Milner was aware of the problem and that Puccini need not concern herself about that matter. Weslander took no further action as a result of Puccini's letter.
After a few months of working in the WEED, Metcalf reported to Weslander that it was difficult to schedule Puccini for work because of her behavior. Metcalf informed Weslander that it was difficult because various areas within the WHFD complained about Puccini and because Puccini firmly articulated to her what work she was willing and not willing to perform. According to Metcalf, Puccini stated that she would not work the switchboard nor work the front desk under Hertog. Metcalf also reported that Puccini's attitude toward Hertog and other co-workers created an uncomfortable work environment.
By February, 1998, Mimer, Metcalf, and Hertog reported to Weslander that they had very little for Puccini to do and that Puccini's behavior of constantly making negative comments toward fellow employees and offering her opinion where it was not solicited was a detriment to the department. Furthermore, Hertog reported that Bussell was fully trained to provide full assistance with the switchboard and reception which further made Puccini's assistance no longer necessary. On February 18, 1998, Weslander went to speak with Puccini about her future with the WHFD and her behavior. However, when Weslander approached Puccini, Puccini ignored Weslander and walked away. After this incident, Weslander called Kuehl and left a message informing her of his issues with Puccini's behavior and her work performance in the WHFD. Weslander told Kuehl that Puccini s services were no longer needed at the WHFD. That same day Kuehl returned Weslander's call and requested that Puccini come to the employment office immediately. When Puccini arrived at the employment office, Kuehl informed Puccini that the WHFD no longer needed her services and that her assignment was terminated. Kuehl also told Puccini that it would be difficult to place her in another department based on her previously work behavior.
On the evening of February 18th, after being terminated, Puccini left three voice mail messages with Weslander expressing her displeasure with her termination. Weslander in response called Puccini that next morning and told her that she could come back to the WHFD on Fridays only. Kuehl, however, informed Weslander that his offer was not in keeping with the retiree program. Kuehl subsequently rescinded Weslander's offer from Puccini, instructed Puccini not to call anyone at the WHFD in the future, and informed Puccini to contact the employment office if she needed to talk to anyone in the future.
After her termination, Puccini wrote another letter to Greenwald dated February 23, 1998, and complained about the WHFD and her termination. In this letter, Puccini stated that Weslander instructed her to report to him on disputes regarding Belovics, Ribando and Polities. In response, United requested statements from Weslander and his department regarding Puccini's allegations. Weslander and others sent statements to United regarding Puccini's claims. Satisfied with the explanations provided, United took no further action regarding Puccini's letter.
On March 4, 1998, Belovics and Ribando filed a grievance with the union asserting that Weslander sought to stifle union activity. This grievance was based in large part on the allegations contained in Puccini's February 23rd letter to Greenwald. The grievance made no mention of sex discrimination or retaliation in violation of Title VII. Puccini testified at a hearing regarding the grievance. Subsequently, however, the Union ultimately dismissed the grievance and no further steps were taken.
On May 22, 1998, Ribando represented by Kane filed a lawsuit against United alleging sex discrimination and retaliation in violation of Title VII. Ribando's case was dismissed by this court and the United States Court of Appeals for the Seventh Circuit affirmed the dismissal. See Ribando v. United Airlines Inc., 200 F.3d 507 (7th Cir. 1999).
STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper "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). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1996). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.
A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
As stated earlier, Puccini, despite being fully appraised of her obligations, failed to file a proper response to defendant's motion for summary judgment. Local Rule 56.1(b) states that a party opposing a motion filed pursuant to Fed.R.Civ.P. 56 shall file opposing affidavits, a supporting memorandum of law, and a concise response to each numbered paragraph of the movant's Local Rule 56.1(a) statement of uncontested facts. See LR56.1(b). Puccini filed instead various communications, correspondence, pay statements, letters, emails, and other momentos which detail her career at United. Puccini did not file a memorandum of law in support of her position. Puccini filed instead only what is labeled "Anne Puccini's Answer to United's Statement of Uncontested Material Facts." This document is nothing more than a twenty-five page narrative by Puccini where she espouses her opinions, beliefs, and understandings about matters not necessarily pertinent to this case. This document cites the exhibits submitted by Puccini, however, this document does not address the legal issues of this case. Puccini, through her submissions and documents, presents allegations of fact concerning details of her employment relationship that are simply not germane to this matter. Puccini does attempt to correspond her narrative to United's 56.1(a) statement of uncontested facts, but Puccini fails to submit anything bearing on her Title VII claim or her ADEA claim.
Rule 56 of the Federal Rules of Civil Procedure does not authorize the granting of summary judgment as a sanction for failing to file a proper response to a motion for summary judgment. See Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993). Rule 56(e) permits summary judgment only "if appropriate — that is, if the motion demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Id. This is not to say, however, that Puccini's derelictions are not without cost. By failing to file a proper Local Rule 56.1(b) statement, Puccini admits, in effect, to all factual assertions presented by the defendants. See Local Rule 56.1(b)(3)(B); Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 689 (7th Cir. Aug. 22, 2000) (accepting as true all material facts set out in Local Rule 56.1(a) statement, where non-moving party has failed to comply with Local Rule 56.1(b)). As a result, this court must determine whether summary judgment is proper as a matter of law by reviewing the record and the facts as presented by the United and by drawing all justifiable inferences in favor of Puccini. See Wienco, Inc. v. Katahn Associates, Inc., 965 F.2d 565, 568 (7th Cir. 1992).
ANALYSIS
I. Notice to Pro Se Litigant Puccini
The Federal Rules of Civil Procedure forbid a district court from acting on a summary judgment motion without giving the nonmoving party a reasonable opportunity to appropriately respond. Fed.R.Civ.P. 56. A motion for summary judgment should not be granted against a pro se litigant unless the pro se litigant receives, clear notice of the need to file affidavits or other responsive materials and of the consequences of not responding. See Timms v. Frank, 953 F.2d 281, 284 (7th Cir. 1992). The United States Court of Appeals for the Seventh Circuit explains that this notice should come from opposing counsel and should include a short, plain statement of the need to respond to a summary judgment motion, giving both the text of Federal Rule of Civil Procedure 56(e) and an explanation of the rule in ordinary English. Id. If opposing counsel fails to provide the requisite notice then the district court should do so. Id.
In this case, Puccini was not represented by counsel when United filed this motion for summary judgment. Therefore, United had a duty to appraise Puccini of her obligation to properly respond to this motion for summary judgment and if United neglected its duty then this court must advise Puccini of the need to respond this motion. On August 8, 2000 this court instructed Puccini, in open court, of the need to respond to defendant's then upcoming motion for summary judgment and advised her of Rule 56(e). See (Docket Entry #26). Puccini's attempt to respond demonstrates that she understood the need to respond to motion and was given sufficient time in which to do so. After Puccini's filed her first response, this court ordered both parties to appear in court on October 26, 2000. At that time, this court advised Puccini again of the need to properly respond to United's motion for summary judgment and admonished Puccini of the consequences of not responding properly. This court handed to both parties copies of Rule 56 and of Local Rules 56.1 and 56.2 and gave Puccini until November 9th to resubmit a proper response and gave until November 27th for United to reply. Having satisfied the requirement of appropriate notice to pro se litigant Puccini, this court now will consider the merits of defendant's motion for summary judgment.
On November 9, 2000, Puccini via carrier delivered to chambers a revised memoranda and several supporting exhibits. It is not clear whether these documents were properly filed with the Clerk's office nor is it clear that opposing counsel received their copy. In any event, Puccini's second attempt to respond to United's motion is just as defecient as her first attempt and taken together Puccini's two responses result in the same legal conclusions.
II. Puccini's Claim of retaliation under Title VII
A. Elements to a Prima Facie Case
In order to establish a prima fade case for retaliation under Title VII, Puccini must show that (I) she engaged in statutorily protected expression, (2) she suffered an adverse employment action, and (3) there is a casual link between the protected expression and the adverse action. See Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1457 (7th Cir. 1994). If she makes that showing, the burden of producing a legitimate nondiscriminatory reason for the adverse action shifts to United. Id. Once United produces those reasons, Puccini bears the burden of showing that United's proffered reasons are pretext. Id; see e.g., McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). In this case, Puccini fails to show an genuine dispute concerning the first element necessary to establish a prima facie case of retaliation under Title VII. Puccini fails to show that she was engaged in statutorily protected expression and that she was in opposition to any of United's activities. As a result, summary judgment in favor of United is necessary as a matter of law as to Puccini's Title VII claim.
B. Puccini was not engaged in expression protected by Statute
In order to satisfy the first element of a prima fade Title VII case, Puccini must demonstrate that she opposed some action of United's that she had a "reasonable belief"was in violation of Title VII. Pasqua v. Metropolitan Life Insurance Co., 101 F.3d 514, 518 (7th Cir. 1996). Title VII does not require that the challenged employment practice actually violate Title VII. Dey, 28 F.3d at 1457. Title VII does require that Puccini establish that she stood opposition to some action by United and that she believed that action "to violated Title VII.
It is clear from the record that Puccini was not standing in opposition to any action of United's and that Puccini did not believe she was opposing a violation of Title VII. Puccini claims that Weslander requested her to prepare a report damaging enough to allow him to fire union employees Belovics and Ribando. Puccini also claims that Weslander demanded the she prepare another more damaging report after she reported to him her initial findings and that she was fired by Weslander after she refused to submit a more damaging report to Weslander. There is absolutely nothing in the record to support Puccini's claims. The record reveals that Weslander never gave Puccini any request, instruction, or order for Puccini to be in opposition. Additionally, from Puccini's deposition, it is evident that Puccini believed that she was involved in union issues. See (Puccini Dep. 106-107). The record establishes, however, that Puccini, on her own impetus, prepared a letter to Weslander dated January 8, 1998, in which she detailed what she believed was bad behavior on the part of Belovics and Ribando. The evidence also shows that Weslander did nothing in response to Puccini's letter nor did he instruct her to report further. The record shows that Puccini's letter to Weslander is consistent with Puccini's history of volunteering criticism of her department and fellow employees. The evidence in this case establishes that Puccini was not in opposition to any activity or direction of Weslander, but that Puccini was acting on her on behalf.
As to what was Puccini's reasonable belief at the time in question, Puccini believed that she was involved in a conflict between union and management over union related matters. See (Puccini Dep. 106-107). Puccini testified in her deposition to the following:
Q: Your understanding was he [Weslander] wanted to get rid of them [Ribando and Belovics] because they were union members, correct?
A: Correct, and they had been giving him trouble. Now, that was all in the same sentence, not because — I don't know whether — that why I questioned with Lisa [Puccini's former attorney] about this gender business because I haven't the slightest idea what that means.
Q: So as far as you were concerned, gender was not an issue [between Weslander, Ribando and Belovics]
A: Exactly. (Puccini Dep. 107)
In looking at the facts and drawing all justifiable inferences in favor of Puccini, it is clear that Puccini believed she was involved with Weslander in a union matter and that Puccini was operating on her own behalf not in opposition to any actions of Weslander. Therefore, Puccini fails to establish a genuine dispute as to her claim of retaliation.
II. Puccini's Claim of Age Discrimination under the ADEA
A. Elements to a Prima Facie Case
Since Puccini has not offered any direct evidence of discriminatory motive or intent on the part of United, Puccini must proceed under the familiar indirect method of proof first outlined in the McDonnell Douglas case in order to establish a claim for age discrimination under the ADEA. See Johnson v. Zema Systems Corp., 170 F.3d 734, 742-43 (7th Cir. 1999). Under that framework, Puccini must produce evidence that (1) she was a member of a protected class; (2) she was qualified for the job in question or was meeting her employer's legitimate performance expectations; (3) she suffered an adverse employment action; and (4) the employer treated similarly situated person not in the protected class more favorably. Id. If Puccini meets the initial burden of producing evidence to sustain a prima facie case, then United must produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Id. If the employer offers a legitimate, nondiscriminatory reason, the burden then shifts back to Puccini to present evidence that the employer's proffered reason is pretext. Id. The ultimate burden of persuasion rests with Puccini to show impermissible motive or intent. Id. In this case, Puccini fails to establish a genuine dispute as to elements two and three. As a result, Puccini fails to establish a prima facie case of age discrimination and summary judgment in favor of United is necessary as a matter of law.
B. Puccini was not meeting the legitimate performance expectations of United
The record in this case clearly establishes that Puccini was not meeting the legitimate performance expectations of United. As a participant in the Retirees Make a Difference Program, the record shows that Puccini received complaints from the Payroll Department, the Flight Training Department, and the Pension Department concerning her work performance while on temporary assignment. See (LR 56.1(a)(3) ¶¶ 26, 28). The record shows that these departments specifically requested that Puccini not be assigned to their department in the future because of her work performance. Id. The record also shows that not long after Puccini arrived in the WHFD, she began causing problems. See (LR 56.1(a)(3) ¶¶ 43-46, 51, 54). During her time in the WHFD Puccini had difficulty taking direction from her direct supervisors and went so far as to dictate to her employer what work she was willing and unwilling to do.See (LR 56. 1(a)(3) ¶¶ 51, 54). Puccini refused to work in the reception area where her assistance was needed, and Puccini consistently inserted her assistance into matters outside the scope of her responsibility. Id. The record in this case offers far more examples of Puccini's failure to meet the legitimate employment expectations of United than this court has the time or the inclination to recite at this time. In summary, Puccini fails to create a genuine dispute as to the second element necessary to prove an age discrimination case under the ADBA and summary judgment is appropriate.
C. Puccini suffered no adverse employment action
In addition to not meeting the legitimate employment expectations of United, Puccini has suffered no adverse employment action due to age discrimination. Puccini does not claim that she was terminated due to age discrimination. Puccini alleges that at the time of her employment she was subjected to different terms and conditions than her similarly situated, significantly younger coworkers. See (Puccini's Amended Complaint ¶¶ 35, 36). In support of her allegations Puccini offers in her amended complaint that (1) younger employees were allowed to arrive late; (2) that she was not granted the same number of breaks as younger employees, and (3) that younger employees were afforded greater "privileges and leniency." See (Amended Complaint ¶¶ 17, 20). These assertions have not been supported by the facts on record. Statements expressing conclusions by a plaintiff do not create an issue of fact.See Jackson v. E.J. Brach Corp., 176 F.3d 971, 985 (7th Cir. 1999). Similar to the plaintiff in Jackson, who could not establish an issue of fact based upon his own assertions that the employment evaluation upon which he was discharged was wrong, Puccini's lone narratives of United's treatment of younger employees are insufficient to create a genuine dispute in this case. Id. As a result, Puccini has failed to establish an issue of fact as to element three and summary judgment in favor of United is appropriate.
Puccini was sixty-one at the time of her employment in the WHFD.
CONCLUSION
For the above stated reasons, United's motion for summary judgment is GRANTED. This case is dismissed with prejudice in its entirety. All pending motions are moot.