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RAI v. DYNAGEAR, INC.

United States District Court, N.D. Illinois, Eastern Division
Jun 23, 2000
Case No. 98 C 6053 (N.D. Ill. Jun. 23, 2000)

Opinion

Case No. 98 C 6053

June 23, 2000

M. LATIF RANA, Esq., Downers Grove, IL, Plaintiff.

DAVID S. BAFFA, Esq., DEBORAH BORST HOETGER, Esq., SANDRA P. ZEMM, Esq. Seyfarth, Shaw, Fairweather, Chicago, IL, for Defendant.


REPORT AND RECOMMENDATION


Plaintiff, Baij Rai, filed a complaint, now amended, against his former employer, Dynagear, Inc., alleging discrimination based on race, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., intentional infliction of emotional distress, and other "pendent state claims." Plaintiff also alleged retaliatory discharge in a separate count, but that count has been dismissed [53-1]. Now before this Court is Defendant's motion for summary judgment by referral order of Judge Bucklo [8-1]. For the reasons below, this Court recommends that the motion be granted that the unspecified "pendent state claims" be dismissed.

I. Background

A. Mr. Rai's Prior Work Experience

Mr. Rai began working at Dynagear in 1986 as a Grade 1 packer in the shipping department. He is a naturalized U.S. citizen of East Indian origin, believes in the Hindu religion, and is college educated. In 1989, Plaintiff was promoted to a Grade 7 shipping position where he remained until his termination on October 21, 1997 for insubordination when he refused to obey a direct order of a supervisor. He was 43 years old.

These facts are taken from the parties' Rule 12(M) and 12(N) statements filed in accordance with Local Rule 12 (now renumbered to Local Rule 56.1). For convenience, this Court shall refer to these statements as the parties' Rule 12(M) and 12(N) statements. In addition, we shall use the following abbreviated designations (in brackets) to refer to these submissions: Def.'s Statement of Material Facts as to Which There Is No Genuine Issue, ["Def.'s 12(M)"]; Evidentiary Materials in Supp. of Def.'s Mot. For Summ. J., ["Def.'s 12 (M), Ex. ___"]; Pl.'s Statement of Material Facts as to Which There Are Genuine Issues, ["Pl.'s 12(N)"); Evidentiary Material in Supp. of Pl.'s Resp. to Def.'s Summ. J. Mot., ["Pl.'s 12(N), Ex. __").

Dynagear uses a grade scale of 1 to 13 to determine employee salaries. A higher grade corresponds to a higher salary.

Dynagear manufactures after-market car parts and employs about 500 employees in Illinois. Plaintiff was hired at Dynagear' s Bolingbrook, Illinois facility. The Bolingbrook facility is a shipping facility that employs about 100 employees comprised of forklift drivers, pickers, packers, lead employees and dock employees.

Mr. Rai's initial duties included packing boxes, picking parts, and driving forklifts. Over the next decade, he worked his way up the pay scale, working in various other positions as a stamp machine operator and warehouse inventory clerk in the shipping and inspection departments. In March of 1993, Mr. Rai was promoted to a label-printing position with an accompanying Grade 7 salary increase. This position required Mr. Rai to use computer software to input certain data, such as customer addresses, part numbers, and shipment numbers, which would be converted to a bar code by the software. Mr. Rai would print out these shipping labels and affix them to boxes to be shipped to Dynagear's customers. Mr. Rai also performed inventory control and trained other employees in the particulars of the label-printing process.

In February of 1996, Mr. Rai received training for a "video jet machine" process which automated the printing and label-affixing processes of Mr. Rai's job duties. The video-jet machine printed out shipping labels and automatically affixed them to boxes. As a result, Mr. Rai's duties were substantially reduced.

In February of 1997, Mr. Rai sent an open-ended letter to the manager of the warehouse, Elwin Proctor, applying for "any future job opening position for lead person or supervisor." (Def.'s 12(M), ¶ 18.) Mr. Rai was not selected for any such position. However, Mr. Proctor promoted Saul Herrera, a Hispanic male under the age of 40 with less formal education than Mr. Rai, to a first-shift supervisor. Before Mr. Herrera's promotion, he was Mr. Rai's lead person. Mr. Rai was paid more money than Mr. Herrera even after Mr. Herrera's promotion to supervisor.

In March of 1997, Mr. Rai applied for an job opening for a returns lead person at the Grade 6 pay level. He stipulated on his application that he did not wish to be considered for the position if it paid less than what he currently made. Mr. Rai was aware that a returns lead person was paid less than his current salary. Because of Mr. Rai's salary stipulation, Mr. Proctor did not consider him for the position.

In April of 1997, Mr. Rai heard "rumors" that Dynagear may hire a second-shift supervisor and he wrote a letter applying for that position. But Dynagear's management later rejected the idea of creating a second-shift supervisory position, and thus the position was never created or posted.

After the introduction of the video-jet machine process in February, Dynagear began to reevaluate its bar code operations and to cross-train its employees to perform a variety of duties. To increase efficiency, Mr. Proctor trained pickers and packers to print the shipping labels themselves. This eventually eliminated the need for a full-time label-printing position. Accordingly, in July, Mr. Rai was transferred from his label-printing position to the shipping/receiving dock. This was the only position available at Mr. Rai's Grade 7 pay scale, and Dynagear needed help in the shipping/receiving dock. When Mr. Rai transferred, he was the highest paid employee in the shipping/receiving department, making more money than even the supervisors who worked there.

As a shipper/receiver, Mr. Rai's duties included loading and unloading trucks, inspecting returned goods, reshelving or scrapping them, and cleaning. His supervisor was Hector Rodriguez. Mr. Rai worked in this department until his termination in October.

Near the end of July, Mr. Rai sent a written request for a transfer to the accounting department to Penny Green, Vice President of Human Resources. Mr. Rai did not know of any specific openings in the accounting department. Mr. Rai was not offered any position in the accounting department.

B. Events Culminating In Mr. Rai's Termination

In early October, Dynagear claims that the janitor who normally cleaned the men's restroom in the receiving area was transferred to another position, and until a new janitor could be hired, all male employees in the receiving area were assigned to clean the men's restroom on a rotating basis in addition to their other duties. On October 21, at about 10:00 in the morning, Mr. Herrera ordered Mr. Rai to clean the men's restroom. When Mr. Rai asked why, Mr. Herrera repeated his order with a warning that if Mr. Rai refused to comply, he would be terminated. Mr. Rai did not indicate that he would clean the restroom, so Mr. Herrera took Mr. Rai to Mr. Proctor. Mr. Proctor explained to Mr. Rai that everyone in the receiving area had to take their turn cleaning the restrooms, but Mr. Rai insisted that someone else be assigned to clean the restroom. Mr. Proctor then informed Mr. Rai that he was being terminated for insubordination, and prepared the termination papers immediately.

Dynagear's handbook provides that insubordination, which is defined as the refusal to obey a legitimate and lawful order of a supervisor, is a ground for termination. As warehouse manager, Mr. Proctor handled all disciplinary problems at the facility and had sole authority to terminate employees. Mr. Proctor told Penny Green, the vice president of human resources, that Mr. Rai was terminated for refusing to clean the restroom. Mr. Rai understood he was being terminated for refusing to clean the restroom.

Mr. Rai believes that his religion, Hindu, forbids him from cleaning public restrooms. Mr. Rai explained that this is a "general belief" and "common practice" in India. (Def.'s 12(M), Ex. B, at 231.) Mr. Rai also testified that cleaning restrooms in India is a task reserved for members of the "lower class," and that members of an upper class, to which Mr. Rai believes he belongs, hire members of a lower class clean their restrooms. Mr. Rai is unaware of any such class system in the United States.

Mr. Rai never told anyone at Dynagear, and in particular anyone in a supervisory or management position, about his supposed religious proscription against cleaning restrooms. Mr. Rai did not tell Mr. Herrera, his supervisor, that his religion forbade him from cleaning restrooms when Mr. Herrera ordered him to clean the men's restroom, nor did Mr. Rai tell Mr. Proctor, the warehouse manager, that cleaning restrooms was contrary to the Hindu religion when Mr. Proctor threatened to terminate Mr. Rai.

C. Evidence of Alleged Discrimination

On August 22, 1997, Mr. Rai wrote a letter to Ms. Green of human resources that he was not happy in the receiving department and that he believed the "Management of Shipping Department Dislike [sic] me for their personal reasons. . . ." (Def.'s 12(M), Ex. C; Pl. Dep. Ex. 14, at 2.) Mr. Rai did not mention anything regarding religion, age, race, or national origin in this letter.

Mr. Rai testified that Mr. Herrera told him sometime in 1997 that Mr. Herrera did not want him working at Dynagear because he was Indian, not Mexican. But Mr. Rai does not "recall the time frame" when these alleged remarks were made. (Def.'s 12(M), Ex. B, at 203.) Mr. Rai also testified that in June of 1997 Jose Herrera and Maria Valdez said that they disliked Mr. Rai because they only wanted to work with other Mexicans. Both Jose and Ms. Valdez were management employees. Mr Rai testified that aside from Jose and Saul Herrera and Maria Valdez, no other management employee made similar remarks.

Mr. Rai testified that Jose Herrera told him that he was "too old" and that Jose wanted to hire younger employees because "they can work harder." (Def.'s 12(M), Ex. B, at 283-84.) But Mr. Rai could not recall when these alleged comments were made.

Mr. Rai never complained to any manager or person in Human Resources about the comments allegedly made by Saul and Jose Herrera and Maria Valdez. Mr. Rai believes that his letter to Ms. Green on August 22, 1997 complained about discrimination, but that letter merely stated that Mr. Rai believed the management disliked him for "personal reasons."

II. Discussion

A. Summary Judgment Standard

Summary judgment is proper only when "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 judgment as a matter of law." FED. FL Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ascertaining whether summary judgment is appropriate, the Court must view the evidence, and draw all reasonable inferences therefrom, in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Kennedy v. United States, 965 F.2d 413, 417 (7th Cir. 1992). If the non-movant bears the burden of proof on an issue, however, he or she may not simply rest on the pleadings, but rather, must affirmatively set forth specific facts establishing the existence of a genuine issue of material fact. See Celotex, 477 U.S. at 322-26.

Summary judgment is appropriate where the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. Consequently, motions for summary judgment must be analyzed in light of both the applicable substantive law and the question of whether a reasonable jury could return a verdict in the non-movant's favor. See Checkers, Simon Rosner v. Lurie Corp., 864 F.2d 1338, 1344 (7th Cir. 1988). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-movant party, there is no genuine issue for trial," and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

B. Plaintiff's Self-Serving and Conclusory Affidavits Do Not Create Genuine Issues of Material Fact.

Rule 56(e) of the Federal Rules of Civil Procedure requires that "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." FED. R. Civ. P. 56(e). The purpose of Rule 56 (e) "is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990). "Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted." Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 563 (7th Cir. 1998) (quoting Hadley v. County of Du Page, 715 F.2d 1238, 1243 (7th Cir. 1983)). In considering a motion for summary judgment, a court is not obligated "to assume the truth of a nonmovant's conclusory allegations on faith or to scour the record to unearth material factual disputes." Carter v. American Oil Co., 139 F.3d 1158, 1163 (7th Cir. 1998) (quoting Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133, 1135-36 (7th Cir. 1997)).

The affidavits submitted by Plaintiff fail to conform in many respects with the spirit of Rule 56(e). For example, the majority of Plaintiff's self-serving affidavit merely parrots the allegations of the Amended Complaint without any further factual support. In classic circular fashion, the allegations of the amended complaint are parroted in Plaintiff's affidavit, and Plaintiff's 12(N) facts mirror Plaintiff's affidavit, which in turn parrots the allegations of the Amended Complaint. Compare Pl.'s 12(N), ¶¶ 31-62 with Affidavit of Baij Rai [hereafter "Pl.'s Aff"], ¶¶ 31-62 and Am. Compl. ¶¶ 1-49. By way of illustration, consider the following excerpts. Paragraph 35 of Plaintiff's Rule 12(N) statement states:

They are: Affidavit of Baij Rai [hereafter "Pl.'s Aff."], Pl.'s 12 (N), Ex. 1; Affidavit of Deepak Mehta [hereafter "Mehta Aff."], id., Ex. 20; Declaration of Rita Montelongo (hereafter "Montelongo Decl."], id., Ex. 21; Affidavit of Flora Majdoub [hereafter "Majdoub Aff."], id., Ex. 22.

Beginning early in February, 1997 and continuing until October, 1997 (the date of Plaintiff's termination by defendant), Dynagear, through its employees and agents, engaged in discriminatory practices against Plaintiff regarding the terms and conditions of his employment on the basis of national origin, religion and race, including but not limited to engaging in a pattern and practice of harassment and humiliation, refusing to promote him and ordering him to perform tasks not required by other employees, all because of his national origin, age and religion.

This "fact" is supported by paragraph 35 of Plaintiff's

Affidavit, which reads:

Beginning early in February 1997 and continuing until October 1997 (the date of my termination by defendant), Dynagear, through its employees and agents, engaged in discriminatory practices against me regarding the terms and conditions of my employment on the basis of my national origin, religion and race, including but not limited to engaging in a pattern and practice of harassment and humiliation, refusing to promote me and ordering ne to perform tasks not required by other employees, all because of my race, national origin and religion.

And this passage from Plaintiff's affidavit simply parrots

Paragraph 10 of the Amended Complaint:

Beginning early in February, 1997 and continuing until October, 1997 (the date of plaintiff's termination by defendant) defendant engaged in discriminatory practices against plaintiff regarding the terms and conditions of his employment on the basis of national origin, religion and race, including but not limited to engaging in a pattern and practice of harassment and humiliation of plaintiff; refusing to promote plaintiff; and ordering plaintiff to perform tasks not required of other employees, all because of plaintiff's race, national origin and religion.

But these are not the only defects contained in Plaintiff's Rule 12(N) statement and supporting affidavits. Many portions of the affidavits of Plaintiff and his former co-workers are not based on personal knowledge. (Pl. Aff., ¶¶ 6-8, 10-12, 16-17, 19, 21-23, 25, 28, 32, 47-49, 51, 57-59; Mehta Aff., ¶¶ 4-9, 13-14, 16-17, 21-23; Montelongo Decl., 4-8, 15-18, 20, 25, 29-31; Madjoub Aff., ¶¶ 4-9, 13-15, 17-18, 20, 24-26.) Other portions are merely conclusory. (Pl.'s Aff, ¶¶ 5, 8, 9, 11, 24, 25, 32, 3-40, 41-43, 45-47, 49, 51-52, 60.) In sum, the affidavits upon which Plaintiff relies in opposing this motion for summary judgment improperly parrot the allegations of the complaint, are conclusory, or are not based upon personal knowledge. By contrast, the affidavit and declaration submitted by Defendant are based upon personal knowledge, do not contain inadmissible statements, and do not state legal conclusions. Therefore, all of the improper portions of the affidavits submitted by Plaintiff and as described above are stricken and will not be considered for summary judgment purposes.

C. Plaintiff Has Failed To Raise a Genuine Issue of Material Fact Regarding His Title VII Claims.

Plaintiff claims discrimination based on race, age, national origin, religion, and failure to promote. He claims to have suffered three categories of adverse employment actions: several denials of promotion, a transfer from labelmaking to shipping/receiving, and a termination. Plaintiff only suggests discrimination for failure to promote, and fails to make any argument regarding his transfer, but out of an abundance of caution, this Court will address all three categories of adverse employment actions. Even giving Plaintiff every benefit of the doubt, this Court easily recommends that summary judgment in Defendant's favor be entered on all of the discrimination claims.

1. Discrimination Based On Religion

Title VII prohibits "discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion. . . ." 42 U.S.C. § 2000e-2 (a)(1). In order to establish a prima facie case of religious discrimination, a plaintiff must show that the observance or practice conflicting with an employment requirement is religious in nature, that he called the religious observance or practice to his employer's attention, and that the religious observance or practice was the basis for his discharge or other discriminatory treatment. See EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir. 1996).

Plaintiff has utterly failed to demonstrate a prima facie case of discrimination based on religion. Even assuming as true Plaintiff's assertion without any evidentiary confirmation that cleaning restrooms is contrary to the Hindu religion, even though this aversion to cleaning restrooms is more likely a socioeconomic class issue, Plaintiff has no evidence that anyone at Dynagear knew about this particular religious conviction or that he was fired because of his observance of this religious conviction. Plaintiff testified at his deposition as follows:

Q: For what reason do you believe you were discriminated against?
A: In my religion, my beliefs against my religion. In my religion, everybody did not clean public bathrooms.

Q: What is your religion?

A: Hindu.

Q: When you say in your religion we did not clean public bathrooms, who is we?
A: We have a different like a group system. One particular group cleans the public bathrooms but not all the groups.
Q: Where would I find or how could I learn about that aspect of your religion that would make it against your religion for you to clean a bathroom?

A: I have no idea.

Q: Could you tell me or point me to any source or any written expression of your religion that would show me that it is against your religion for you to clean a bathroom?
A: I don't recall any source right now because I do not try to find any written verification or something. It's a general belief. It's a common practice.
Q: The class system you're referring to applies in India?

A: Yes.

Q: You're not aware of that class system occurring in the United States?

A: No.

Q: I assume you were not in that, what I assume was a lower class of individuals you're referring to? You consider yourself in a different class?

A: Right.

Q: Does everyone not in that lower class have a maid or some kind of service person to clean their bathrooms?

A: Yes.

Q: That included you when you lived in India?

A: Yes.

Q: Did you have this conversation with anyone at Dynagear, the kind of conversation we're having now?
A: No.

* * *

Q: Did you ever have any discussion with anyone in management about your religion?
A: No, except one time we had some discussion with Lou Nair who used to be Hindu. We met all the time in the temple.

(Def.'s 12(M), Ex. B, at 230-32.) This deposition testimony establishes that Plaintiff never told Saul Herrera nor Elwin Proctor about Plaintiff's religious conviction against cleaning restrooms. The only "evidence" Plaintiff offers to the contrary is an unsupported, unsubstantiated, self-serving statement not based on personal knowledge in his affidavit that "Saul Herrera and management of Dynagear, Inc. knew that cleaning the public washrooms is against my religious and personal beliefs." (Pl.'s Aff., ¶ 21.) This does not create a genuine issue of material fact. His deposition testimony destroys if not all at least two of the prima facie elements of his religion discrimination claim. Therefore, summary judgment in Defendant's favor on Plaintiff's religion discrimination claim is appropriate.

2. Defendant Is Entitled To Summary Judgment As a Matter of Law On Plaintiff's Race, National Origin, and Age Discrimination Claims.

a. Failure-to-promote discrimination

Defendant argues that Plaintiff is barred from pursuing his failure-to-promote claims because they were not timely filed with the Equal Employment Opportunity Commission ("EEOC") within 300 days after the alleged denials of promotion occurred. This Court agrees that some of Plaintiff's alleged denial of promotion claims are untimely.

As a general rule, a Title-VII plaintiff cannot bring a claim in a lawsuit that was not included in an EEOC charge. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). This rule serves the dual purpose of (1) affording an opportunity for the EEOC to settle the dispute between the parties and (2) putting the defendant on notice of the charges brought against it. See id. at 44; see also Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995). This is a condition precedent with which Title-VII plaintiffs must adhere. See, e.g., Cheek v. Western Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).

In Illinois, a complainant must file a complaint within 300 days of the alleged harassment. See 42 U.S.C. § 2000e-S(e); see also Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999). Failure to file within the allotted time renders the charge untimely and the claimant is precluded from bringing an action in court. See Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707 (7th Cir. 1995). A pre-charge filing such as an intake questionnaire may be deemed a sufficient filing, but only where the EEOC "accept[s] the questionnaire and note[s] and assign[s] a charge number to the claim" and "provide[s] notice of a charge to the employer." Philbin v. General Elec. Capital Auto Lease, Inc., 929 F.2d 321, 324 (7th Cir. 1991).

Plaintiff's failure to timely file with the EEOC a claim for discrimination based on some of Defendant's alleged failures to promote violates both policies underlying the 300-day filing period. Plaintiff contends that a questionnaire he sent to the EEOC on November 19, 1997, constitutes the trigger date for the 300-day requirement. First of all, the exhibits attached to Plaintiff's Response to Defendant's Supplement to Its Memorandum of Law (hereafter "Pl.'s Supp. Resp.") are improperly before this Court, violate Rule 12 of the Local Rules, and will not be considered by this Court. However, even if these unauthenticated documents were considered as properly before this Court, the charge questionnaire sent by Plaintiff was actually rejected by the EEOC in a letter dated December 8, 1997, which stated, "[t]he information you provided is not sufficient for filing a charge of discrimination." (Pl.'s Supp. Resp., Ex. B.) The questionnaire was not stamped with a charge number, nor was it sent to Dynagear. Therefore, the 300-day trigger date is January 28, 1998, the date when Plaintiff filed a Charge of Discrimination with the EEOC, the EEOC stamped the form and assigned a charge number, and Dynagear was sent a notice thereof. The first two alleged denials of promotion occurred sometime in February and March of 1997, more than 300 days prior to the filing of the EEOC charge. Therefore, these alleged failure-to-promote claims are untimely.

Citations to the parties' briefs will be abbreviated as follows: Def.'s Mem. of Law in Supp. of Its Mot. for Summ. J., [hereafter "Def.'s Mem."]; Pl.'s Mem. of Law in Answer to Def.'s Mot. for Summ. J., [hereafter "Pl.'s Resp."]; Reply Mem. to Pl.'s Resp. to Def.'s Mot for Summ. J., (hereafter "Def.'s Reply"]; Def.'s Supp. to Its Mot. for Summ. J. and Supp. Mem., (hereafter "Def.'s Supp. Mem."]; Pl.'s Resp. to Def.'s Supp. to Its Mem. of Law, [hereafter "Pl.'s Supp. Resp."].

By this Court's calculations, 300 days before the filing of the EEOC charge falls on April 2, 1997.

Two other alleged promotion denials do survive the 300-day hurdle. They are the alleged denial of promotion in April of 1997 when Plaintiff applied for a second-shift supervisory position which he heard through the grapevine was being created, and in late-July when Plaintiff applied for a non-existent position in the accounting department. Because these alleged promotion denials occurred after April 2, 1997, they are not untimely.

However, regardless of the timeliness of the failure-to-promote claims, they fail as a matter of law. In order to make a prima facie showing of discrimination for failure-to-promote in a Title VII or ADEA case, the plaintiff must demonstrate that (1) he was a member of a protected group; (2) he applied for and was qualified for the position sought; (3) he was rejected for the position; and (4) those who were promoted had similar or lesser qualifications for the job, or other evidence from which one can infer that the plaintiff was denied promotion for a discriminatory reason. See Ghosh v. Indiana Dep't of Envtl. Management, 192 F.3d 1087, 1090-91 (7th Cir. 1999); see also Leffel v. Valley Fin. Servs., 113 F.3d 787, 793 (7th Cir. 1997). Under the familiar McDonnell-Douglas burden-shifting methodology, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), if the plaintiff succeeds in establishing a prima facie case of discrimination, the burden then shifts to the defendant, who must provide a nondiscriminatory reason for failing to promote the plaintiff. See Ghosh, 192 F.3d at 1091. If the defendant meets that burden, the burden returns to the plaintiff who must demonstrate that defendant's proffered reasons are pretextual. See id. Pretext is established if the plaintiff can show that the defendant's proffered reasons are either lies or completely lacking in factual basis. See Mills v. Health Care Serv. Corp., 171 F.3d 450, 458 (7th Cir. 1999). To avoid summary judgment, a plaintiff must produce evidence from which a rational trier of fact could infer that the defendant lied about its proffered reasons for failing to promote him or that the reasons had no basis in fact. See Ghosh, 192 F.3d at 1091.

Plaintiff cannot even make out a prima facie case of discriminatory failure-to-promote. The only position for which Plaintiff has evidence he was rejected is the first-shift supervisory position filled by Mr. Herrera in February of 1997. He has no evidence that the accounting position he sought ever existed, or that the second-shift supervisory position he heard rumors about was ever created. He also disqualified himself from consideration for the lead person position because he insisted that his paygrade remain the same, even assuming that going to a position with substantially less pay is considered a promotion. That leaves the position filled by Mr. Herrera, but Plaintiff has failed to raise an issue of fact regarding his qualification for this position, because the only evidence he provides to rebut Defendant's assertion that he was not qualified is his own self-serving affidavit, and affidavits as to an employee's perceptions of himself do not create issues of fact to defeat summary judgment. See, e.g., Brill v. Lante Corp., 119 F.3d 1266, 1273 (7th Cir. 1997); Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1460 (7th Cir. 1994); Gustovich v. ATT Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992).

Even assuming Plaintiff can establish that he was better qualified that Mr. Herrera because he possessed superior academic credentials and had worked longer at Dynagear, he has presented no evidence that Dynagear's reasons for not promoting him were pretexts for discrimination. Mr. Proctor stated that he selected Mr. Herrera because he had worked in different areas, had experience supervising others, and understood the day-to-day operations of the facility. Mr. Proctor had been impressed with Mr. Herrera's initiative and willingness to take on responsibility and to learn. (Def.'s 12(M), ¶ 19.) By contrast, Mr. Proctor believed that Plaintiff was not as knowledgeable in areas outside the labelmaking position because Plaintiff had held that position for many years, and Mr. Proctor did not feel that Plaintiff had exhibited a sufficient initiative and willingness to take on additional responsibilities like Mr. Herrera had. (Id.) Plaintiff is content to rest on his own self-serving affidavit that he was qualified for the position, but it is well established that an employee's perception of himself is "not relevant" to contradict an employer's negative assessment of the employee's abilities. Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989). Therefore, Plaintiff has not demonstrated that Defendant's failure to promote him was a pretext for discrimination, and summary judgment on his failure-to-promote claim is appropriate for that reason as well.

b. Wrongful transfer claim

Plaintiff makes no argument in his brief with regard to his Rule 12(N) statement that his transfer from labelmaking to receiving was motivated by discrimination. Any argument based on a fact raised in a Rule 12(N) statement is waived if it is not asserted in the brief. See Bryton Dairy Prods., Inc. v. Harborside Regrigerated Servs., Inc., 991 F. Supp. 977, 984 (N.D. Ill. 1997). Therefore, any argument as to a wrongful transfer is waived.

Even assuming the argument is not waived, Plaintiff's wrongful transfer claim fails because he offers no competent evidence that exposes as pretextual Defendant's assertion that he was transferred to the receiving department because (a) the labelmaking position was eliminated, (b) Dynagear needed help in the receiving area, and (c) it was the only position then available at Plaintiff's paygrade. Plaintiff states in his affidavit that he does not believe the labelmaking position was eliminated because he observed other employees printing bar code labels after his transfer. But just because other employees may have been printing labels after Plaintiff's transfer does not prove that the position was not eliminated. Defendant explains that pickers and packers were trained to print labels after the full-time labelmaking position was eliminated to streamline the shipping process. If there were a full-time labelmaker hired to replace Plaintiff, Plaintiff does not identify this person. Thus, even assuming Plaintiff's wrongful transfer argument is not waived, Plaintiff has failed to expose Defendant's explanation for his transfer as a falsity.

c. Wrongful termination

The framework for proving discrimination on the basis of age, race, and national origin are substantially the same. There are two ways to prove discrimination. The first is to show direct evidence of intentional discrimination. The more common method is to prove by indirect evidence discrimination using the McDonnell-Douglas burden-shifting methodology explained supra.

Under the direct method of proof, a plaintiff can prove discrimination by presenting direct or strong circumstantial evidence of discriminatory intent. See Gonzalez v. Ingersol Milling Mach. Co., 133 F.3d 1025, 1031 (7th Cir. 1998); Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). The evidence "need not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question." Oates v. Discovery Zone, 116 F.3d 1161, 1170 (7th Cir. 1997). Once the plaintiff presents such evidence, the defendant must prove that it would have made the same employment decision even if it had not taken the protected status (race, age, etc.) into account. See id.

Under the indirect methodology, the plaintiff must first establish a prima facie case by showing that (1) he was within a protected class; (2) his performance met his employer's legitimate expectations; (3) he suffered an adverse employment decision; and (4) others not in his protected class received more favorable treatment. See Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999) (race); Cianci v. Pettibone Corp., 152 F.3d 723, 728 (7th Cir. 1998) (age); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998) (national origin). Once he does so, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. See Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993). If the defendant meets this burden, the presumption of discrimination vanishes, and the burden returns to the plaintiff to show that the defendant's proffered reason is a pretext for discrimination. See Id. at 515-17. If the plaintiff shows the defendant's reason to be false, "the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves v. Sanderson Plumbing Prods., Inc., ___ S.Ct. ___, ___ U.S. ___, No. 99-536, 2000 WL 743663, at *9 (June 12, 2000). The ultimate burden of persuasion that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Id. at 507.

In the case of age discrimination, the plaintiff must show that (4) "similarly situated, substantially younger employees were treated more favorably." Biolchini v. General Elec. Co., 167 F.3d 1151, 1153 (7th Cir. 1999).

All of Plaintiff's alternative discrimination claims fail under either methodology. Although Plaintiff claims to have "direct evidence that Plaintiff's discharge was racially motivated," he utterly fails to identify it. (Pl.'s Resp., at 13.) Therefore, this Court assumes that Plaintiff is proceeding solely under the indirect method of proof.

While this Court tires of searching for arguments and issues of fact for Plaintiff, Plaintiff does mention in his Rule 12(N) statement that certain alleged comments were made regarding his national origin and age, but he cannot remember when these comments were made, nor can he attribute them to any decisionmaker responsible for his termination. So even if Plaintiff meant to identify these statements as his "direct" evidence of discrimination, they do not create an issue of fact because there is no temporal nexus between the utterance of these alleged remarks and the termination, nor are these comments attributed to any decisionmaker at Dynagear.

Plaintiff filed two documents in response to Defendant's motion for summary judgment, which action was made the subject of Defendant's motion to strike the non-conforming papers. This Court struck Plaintiff's Response to Defendant's Summary Judgment Motion [47-1], and let stand Plaintiff's Memorandum of Law in Answer to Defendant's Motion For Summary Judgment as Plaintiff's response to the motion.

We will assume, as Defendant apparently does, that Plaintiff can establish the first three prongs of his prima facie case. Defendant argues that Plaintiff cannot establish that similarly situated employees outside of his protected class received more favorable treatment. This Court agrees.

To establish the fourth prong of his prima facie case, Plaintiff must show that other employees not in Plaintiff's protected class who worked in the shipping/receiving department were also asked to clean the restrooms, refused to clean the restrooms, but were not terminated. Plaintiff has provided the name of not a single employee who meets this criteria, and in fact, Defendant has evidence to the contrary. According to Defendant's unrebutted Rule 12(M) statement, two other employees, Enrique Guzman (Hispanic, under 40, religion unknown) and Anthony Carey (White, under 40, religion unknown), were also fired on October 28, 1997, and November 4, 1997, respectively, for insubordination because they also refused to clean the restroom when ordered. (Def.'s 12(M), ¶ 44.) In typical conclusory fashion, Plaintiff simply asserts in his affidavit without any corroborating evidence that "[n]o other employee has been fired for not cleaning the bathrooms." (Pl.'s 12(N), Ex. 1, ¶ 19.) Even if true, this statement says nothing about whether any employee was ordered to clean the restroom and refused. Thus, Plaintiff has failed to establish a prima facie case of discrimination based on race, national origin, or age.

Plaintiff's response reads as follows: "Defendant falsely alleges it has terminated two other employees for not cleaning the bathrooms. Defendant is trying to legitimize it's [sic] discriminatory motive by falsely alleging that it had fired two other employees for the same reason." (Pl.'s 12(N), ¶ 44.) Amazingly, Plaintiff cites as support his affidavit in which he states, "I have no personal knowledge that any other employee was fired after my termination." (Pl.'s 12(N), Ex. 1, ¶ 19.) Thus, Plaintiff concedes that he does not know whether two other employees were terminated for not cleaning the restroom, and therefore paragraph 44 of Defendant's 12(M) statement is deemed admitted. See Karazanos v. Madison Two Assocs., 147 F.3d 624, 626 (7th Cir. 1998) (equivocation constitutes an admission).

Plaintiff was fired on October 21, 1997.

Even assuming Plaintiff can establish a prima facie case of discrimination, he has failed to raise a genuine issue of material fact that exposes Defendant's proffered reason for his termination as a lie. Plaintiff argues that Mr. Herrera's order on October 21 that Plaintiff clean the restroom was completely arbitrary and an excuse to force Plaintiff out of Dynagear. But the courts do not "sit in judgment as super-personnel departments overseeing corporate decisions, even if some judges think the decisions to be mistaken or perplexing or silly." Brill, 119 F.3d at 1272. No matter how silly it might seem to order the most senior employee in a shipping/receiving department to clean a restroom, this Court is in no position to second-guess Mr. Herrera and Mr. Proctor's order. Moreover, as stated earlier, Plaintiff's statement in his affidavit that "Saul Herrera and management of Dynagear, Inc. knew that cleaning the public washrooms is against my religious and personal beliefs," (Pl.'s 12(N), Ex. 1, ¶ 21), is inadmissible because it is not based on Plaintiff's personal knowledge. In short, because Plaintiff admits that he did not clean the restroom as ordered, he cannot expose the Defendant's explanation for his termination as mendacious.

In Plaintiff's response brief, Plaintiff argues that he has established a prima facie case for age discrimination, but goes no further. (Pl.'s Resp., at 21.) Therefore, Plaintiff has waived any argument with regard to his age discrimination claim based on the indirect method of proof under McDonnell-Douglas. For that reason alone, summary judgment is appropriate as to the age discrimination claim.

Finally, Plaintiff argues that statistical evidence as to the racial composition of the Bolingbrook facility at Dynagear compared to the racial composition of Bolingbrook exposes Defendant's employment decision to be unworthy of credence. It is well established that the probative value of statistics to prove discrimination is very low, especially where the plaintiff cannot show any link between the alleged discrimination represented by the statistics and the adverse employment decision. See Gilty v. Oak Park, 919 F.2d 1247, 1252-53 (7th Cir. 1990). The probative value all but disappears where the plaintiff offers no statistical analysis of the evidence or identifies which criteria he used in selecting the relevant pool. See Kidd v. Illinois State Police, 167 F.3d 1084, 1102 (7th Cir. 1999); Plair v. Brach Sons, Inc., 105 F.3d 343, 349 (7th Cir. 1997).

The only "statistical" evidence Plaintiff offers are two unauthenticated documents which purportedly show (1) that more than "98 percent" of Dynagear employees were "Mexican," and (2) that in 1995 only eight percent of Bolingbrook's population was "Mexican." (Pl.'s 12(N), Exs. S 13.) Preliminarily, as Defendant points out, these documents are unauthenticated and are therefore inadmissible. But even if these documents were properly authenticated, they resoundingly fail to demonstrate any relationship whatsoever between the alleged disparity supposedly represented by the statistics and the adverse employment action suffered by Plaintiff. Plaintiff's desperate assertion that his "statistical proof proves [his] prima facie case," (Pl.'s Resp., at 16), is just another poignant reminder that just because Plaintiff says something does not make it so.

The blatant asseverations continue. Plaintiff further claims that statistical evidence "prove[s] his case of disparate impact" based on age discrimination. (Pl.'s Resp. at 21.) Once again, this assertion is wrong because Plaintiff fails to show any relevant correlation between the percentage of employees over the age of 40 (in his brief, 13 out of 67 or 19 percent) and the adverse employment action. Moreover, he relies on the same unauthenticated, inadmissible document that he relies on for his other discrimination claims. None of the statistical evidence, even if admissible, proffered by Plaintiff raises any issue of fact as to the veracity of Defendant's proffered reason for terminating Plaintiff. Summary judgment is appropriate on all of Plaintiff's various discrimination claims scattered throughout Counts I and III.

D. Summary Judgment On Plaintiff's IIED Claim Is Appropriate As a Matter of Law.

Having disposed of Plaintiff's federal claims, we now turn to his remaining state claims, which include the tort of intentional infliction of emotional distress ("IIED") and other "pendent state law claims." (Am. Compl. ¶ 41(d).) There being no federal claims remaining, any exercise of jurisdiction over the state claims would be purely supplemental, and is governed by 28 U.S.C. § 1367 (c)(3).

As a general rule, "when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits." Kennedy v. Schoenberg, Fisher Newman, Ltd., 140 F.3d 716, 727 (7th Cir. 1998). But if "an interpretation of state law that knocks out the plaintiff's state law claim is obviously correct, the federal judge should put the plaintiff out of his misery then and there, rather than burdening the state courts with a frivolous case." Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997). A district court's decision to exercise or decline supplemental jurisdiction is purely discretionary and "`almost unreviewable,' especially when all federal claims have been dropped from the case before trial and only state law claims remain." Kennedy, 140 F.3d at 728 (citations omitted).

Defendant argues that Plaintiff's IIED claim is preempted by the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/8-111(C), and, in the alternative, the claim fails on the merits because Plaintiff cannot establish any of its elements. This Court believes that it is better to put Plaintiff out of misery now than to burden the busy Illinois courts with a frivolous claim.

The IIED claim is preempted by the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/8-111(C). The Court in Geise v. Phoenix Co. of Chicago, Inc., 639 N.E.2d 1273, 1277 (Ill. 1994), held that the IHRA preempts state law tort claims when the facts alleged are "inextricably linked" to "civil rights violations." Accord Maksimovic v. Tsogalis, 687 N.E.2d 21 (Ill. 1997). The IHRA prohibits discrimination based on national origin, age, and religion. See 775 ILCS 5/1-103(I). Plaintiff argues that his IIED claim is not preempted because it "arises out of Defendant's violation of Title VII [sic] prohibitions against discrimination based upon national origin, age, and religion." (Pl.'s Resp., at 22.) Since Plaintiff clearly concedes that his IIED claim is "inextricably linked" to his federal claims, it is preempted by the IHRA. Accord Westphal v. City of Chicago, 8 F. Supp.2d 809, 812 (N.D. Ill. 1998); Ratley v. City of Aurora, No. 97-C-3422, 1998 WL 30697, at *3 (collecting cases); Stewart v. Thomas, No. 95-C-6971, 1996 WL 308284, at *4-*5 (M.D. Ill. June 6, 1996); Erickson v. Elco Indus., No. 95-C-50328, 1996 WL 268383 (N.D. Ill. May 20, 1996).

Even assuming the IIED claim is not preempted, it fails as a matter of law because Plaintiff has not established any of its elements. To do so, he must prove that Defendant's conduct was extreme and outrageous, that it intended to inflict severe emotional distress, and that its conduct did in fact cause severe emotional distress. See McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). "[L]iability for intentional infliction of emotional distress has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of human decency." Oates v. Discovery Zone, 116 F.3d 1161, 1174 (7th Cir. 1997) (internal quotes omitted). "Conduct which otherwise amounts to no more than insults or indignities is not transformed into extreme and outrageous conduct simply by virtue of an employer-employee relationship." Lundy v. Calumet City, 567 N.E.2d 1101, 1103 (Ill.App.Ct. 1st Dist. 1991).

In typical fashion, Plaintiff's brief is bereft of any citations to any competent evidence and is filled instead with conclusory asseverations which merely parrot the elements of an IIED claim. This Court refuses to scour through Plaintiff's Rule 12(N) statement in search of a genuine issue of material fact. By failing to provide any meaningful argument on his IIED claim, he has waived his ability to raise it later. Moreover, a cursory review of his largely insufficient Rule 12(N) statement reveals that he has no evidence to support even a weak IIED claim. Defendant is entitled to summary judgment as a matter of law on Plaintiff's IIED claim.

The following excerpt from Plaintiff's brief is illustrative: "Defendants [sic] conduct here was outrageous and caused severe humiliation and harassment. Defendant intended the suffering and acted in reckless disregard to Plaintiff's potential suffering. Plaintiff suffered severe distress. . . . Defendant's actions caused severe emotional distress." (Pl.'s Resp., at 22.)

As for the remaining "pendent state claims," Plaintiff makes no argument whatsoever in his ample 26-page response brief as to how these claims survive summary judgment. Although Defendant did not make any specific argument as to the survivability of these unknown state claims, Defendant did move to dismiss Plaintiff's Amended Complaint "in its entirety." (Def.'s Mem., at 2, 15.) Accordingly, by failing to raise any argument whatsoever as to the identity or efficacy of these so-called other "pendent state claims" when threatened with a motion to dismiss them, Plaintiff has waived his ability to assert these claims. They are also subject to dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failing to state a claim upon which relief may be granted. In the alternative, the Court should decline to exercise jurisdiction over these claims and dismiss them for that reason. For these reasons, the remaining "pendent state claims" should be dismissed.

III. Conclusion

For the foregoing reasons, this Court recommends that Defendant Dynagear's motion for summary judgment [31-1] be granted in its entirety, and that the remaining "pendent state claims" of Plaintiff's Amended Complaint be dismissed.


Summaries of

RAI v. DYNAGEAR, INC.

United States District Court, N.D. Illinois, Eastern Division
Jun 23, 2000
Case No. 98 C 6053 (N.D. Ill. Jun. 23, 2000)
Case details for

RAI v. DYNAGEAR, INC.

Case Details

Full title:BAIJ N. RAI, Plaintiff, v. DYNAGEAR, INC., Defendant

Court:United States District Court, N.D. Illinois, Eastern Division

Date published: Jun 23, 2000

Citations

Case No. 98 C 6053 (N.D. Ill. Jun. 23, 2000)

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