Opinion
No. 97 C 5948.
March 7, 2000.
OPINION AND ORDER
Before the court are: (1) Plaintiffs motion for leave to file an amended complaint [43-1]; (2) Plaintiff's motion to strike Defendant's statement of material facts and for leave to file a Local Rule 12(N) response [44-1]; and (3) Defendant's motion for summary judgment [34-1]. For the following reasons, the court denies Plaintiff's motion to file a second amended complaint, denies Plaintiff's motion to strike Defendant's Local Rule 12(M) statement, grants Plaintiff's motion to file a Local Rule 12(N) response, and grants Defendant's motion for summary judgment.
I. BACKGROUND
This case arises from Plaintiff, Marvin Sanders' ("Sanders") attempt to become an apprentice operating engineer. Sanders is African American, and asserts that the Union did not accept him as an apprentice because of his race. The court outlines the facts giving rise to Sanders' claims below.
Defendant, International Union of Operating Engineers ("Union"), has an apprenticeship program to instruct and train people to become operating engineers. In 1979 Sanders attended a five day training session that the Union held at an entity called the Coalition for United Community Action. At that time, Sanders and five or six other persons applied to the apprenticeship program. The Union selected two members, both African American, into the apprenticeship program. Although the Union did not accept Sanders at that time, the Union kept Sanders on a waiting list, and sent Sanders a letter indicating that he would be placed in the apprenticeship program when his name moved to the top of the applicant list.
Nothing happened until 1987, when the Union's apprenticeship program invited hundreds of long-waiting applicants, including Sanders, to re-test for the apprenticeship program. Sanders reapplied, and the Union scheduled his five day test for March 16-20, 1987. During this test, Sanders showed up late four of the five days, and missed one day altogether. Sanders admits to being late, and claims he missed a day because he was sick.
In April 1987, the Union sent a letter to Sanders explaining that his chances of becoming an apprentice were extremely low because of his poor scores on the March 1987 test. Nevertheless, Sanders remained on the applicant list until March 17, 1994, when the Union sent a letter to Sanders, and 277 other applicants, stating that it was removing them from the waiting list. The Union invited Sanders to re-apply for the apprenticeship program to try to obtain a higher score, but Sanders chose not to do so.
In August 1997 Sanders filed this suit, asserting claims for relief under 42 U.S.C. § 1981, and Title VII 42 U.S.C. § 2000e et. seq. Sanders claims that the Union discriminated against him on the basis of race and color, and asserts claims for both disparate treatment and disparate impact.
See Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 512-13 (7th Cir. 1996) for a discussion of the differences between disparate treatment and disparate impact.
The Union answered the complaint, and the parties proceeded with discovery. On September 17, 1998, then Magistrate Judge Pallmeyer heard oral motions to compel from both parties, and found, in relevant part, that Sanders' discovery requests were overbroad. Magistrate Judge Pallmeyer limited Sanders discovery requests to a period of two years prior to, and one year following, the Union's removal of Sanders from the waiting list in March 1994. The Union complied with the order and answered Sanders' discovery. All discovery closed on May 3, 1999.
Judge Williams hosted a settlement conference on May 27, 1999, but the parties were unable to reach an agreement. At that time, Judge Williams set a summary judgment schedule, where the parties were to file motions for summary judgment by July 6, 1999, with responses due July 27, 1999 and replies due August 19, 1999. On July 6, 1999 the Union filed its motion for summary judgment, arguing that: (1) Sanders provides no evidence of discrimination; (2) the apprenticeship program, and not the Union, is the proper defendant; and (3) the court must dismiss any claims falling outside of the statute of limitations period.
This case was transferred to this court on December 15, 1999.
Sanders did not respond by July 27, 1999, but Judge Williams extended the time for Sanders' response until September 8, 1999, and admonished Sanders that she would grant the Union's motion if Sanders did not respond. (See Minute Order of August 25, 1999.) Rather than respond to the summary judgment motion, on August 30, 1999 Sanders filed two separate motions. The first is for leave to file a second amended complaint, where Sanders seeks to amend his complaint to allege intentional or negligent spoliation of evidence. In support of this motion, Sanders concedes that he does not have evidence to support the prima facie elements of his discrimination claims, and asserts that the amended complaint is an attempt to "change the direction" of the lawsuit. (See also Pl.'s Reply in Supp. of Mot. for Leave to Second Am. Compl., pg. 3.) (See also Pl.'s Reply in Supp. of Mot. to Strike Local Rule 12(M) Statement, pg. 1.)
Sanders' second motion is for leave to strike the Union's Local Rule 12(M) statement and for leave to file a Local Rule 12(N) statement. Sanders argues that the Union's Local Rule 12(M) statement does not consist of short numbered paragraphs, and that documents attached as support are inadmissible hearsay. In the motion for leave to file a Local Rule 12(N) statement, Sanders admits that his proposed Local Rule 12(N) statement is "intended merely to preserve Plaintiff's rights as to their [sic] two spoliation of the evidence counts, and not intended to disrupt Defendants arguments that Plaintiff cannot prove their [sic]prima facie discrimination case." (Pl.'s Mot. for Leave to File Mot. to Strike Local Rule 12(M) Statement and Local Rule 12(N) Resp., ¶ 4.)
Judge Williams referred Sanders' two motions to Magistrate Judge Schenkier. On January 19, 2000 the magistrate court issued a report and recommendation that the court deny Sanders' motions. On February 4, 2000, Sanders filed objections to the report and recommendation, to which the Union responded. Thus, the court will analyze: (1) Sanders' objections to the report and recommendation and (2) the Union's motion for summary judgment.
II. DISCUSSION
A. The Report and Recommendation
Upon the submission of a magistrate court's report and recommendation, the district court shall make a de novo determination upon the record and may accept, reject, or modify the recommended decision. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636 (b)(l)(C); United States v. Rodriguez, 888 F.2d 519, 521 (7th Cir. 1989). The court must look at all evidence contained in the record, and retains final authority over the decision. See Delgado v. Bowen 782 F.2d 79, 82 (7th Cir. 1986). In this case, the magistrate court recommends that the court deny Sanders' motion for leave to file a second amended complaint, and that the court deny Sanders' motion to strike the Union's Local Rule 12(M) statement and for leave to file a Local Rule 12(N) statement. Sanders objects to these recommendations. As outlined below, the court accepts the report and recommendation in part, rejects it in part, and modifies it in part.
1. Motion for leave to amend
The magistrate court offers two bases for denying Sanders' motion to file a second amended complaint First, the magistrate court recommends denying the motion because it seeks to add new theories of liability to a case after the close of discovery and after the Union moved for summary judgment. (See Report and Recommendation, pp. 4-6.) The court agrees, and adds that Sanders fails to demonstrate any valid reason why he did not discover the basis for the proposed new claims sooner. The gravamen of Sanders' proposed second amended complaint is that the Union negligently or intentionally destroyed documents related to the apprenticeship program that date back to 1980. Sanders claims that he did not discover that the Union routinely destroys documents in accordance with Labor department regulations until June 1999. (See Pl.'s Mot. for Leave to File a Second Am. Compl. ¶ 9.); (see also Def.'s Resp. to Mot. for Leave to File a Second Am. Compl., Ex.'s B, C.) (affidavits from a Union witness concerning the Union's policy on retention of records.) The court notes that Sanders had approximately eighteen months to conduct discovery, where he should have found whether he had additional claims. See Johnson v. Methodist Medical Ctr. of Illinois, 10 F.3d 1300, 1304 (7th Cir. 1993) (noting that "there must be a point at which a plaintiff makes a commitment to the theory of its case"). Further, Sanders' explanation as to why he chose to wait until August 30, 1999, after the Union filed a summary judgment motion, to move to amend his complaint is unavailing. Sanders claims that his position is stronger if he does not contest the summary judgment motion and instead changes direction to preserve the spoliation claims. (See Pl.'s Reply in Supp. of Mot. for Leave to File Second Am. Compl., pg. 3.); (see also Pl.'s Reply in Supp. of Mot. to Strike Local Rule 12(M) Statement, pg. 1.) As the magistrate court correctly noted, this "change in direction" in response to a summary judgment motion is prejudicial to defendants, and is a valid reason to deny leave to file an amended complaint. (See Report and Recommendation, pg. 6.) (citing Doherty v. Davy Songer, Inc., 195 F.3d 919, 927 n. 5 (7th Cir. 1999); see also Feldman v. American Memorial Life Ins. Co., 196 F.3d 783, 793 (7th Cir. 1999) (affirming a denial of leave to amend where the plaintiff sought to file an amended complaint after the close of discovery and on the eve of summary judgment proceedings).
Sanders' objection to this portion of the report is that there was no undue delay in seeking leave to file the second amended complaint. This is simply a repetition of the same argument that the magistrate court correctly rejected. As noted above, Sanders fails to demonstrate a valid reason for not seeking leave to file a second amended complaint earlier. In light of the prejudice to the Union, the court overrules Sanders' objection on this point.
As an alternative basis to deny the motion, the magistrate court states that the second amended complaint would be futile because the Illinois Supreme Court has not recognized Sanders' new causes of action — negligent and intentional spoliation of evidence. Sanders objects to this conclusion, and argues that the causes of action are valid. The court modifies the report and recommendation because the court does not believe the futility analysis is necessary in this case. As noted above, the court is well within its discretion to deny Sanders' motion simply because it is an improper attempt to "change direction" in the face of a summary judgment motion. See Sanders v. Venture Stores, Inc., 56 F.3d 771, 774 (7th Cir. 1995) (and cases cited therein). Therefore, there is no need for the court to make any determination about the viability of Sanders' proposed amendments under Illinois law. See Stonewall Ins. Co. v. Argonaut Ins, Co. 75 F. Supp.2d 893, 906 n. 13 (N.D.Ill. 1999) (noting that federal courts should be reluctant to predict how a state supreme court would decide an issue of state law). Accordingly, the court overrules Sanders' objections and modifies the report and recommendation to conclude that the court need not address whether Sanders' new claims are actionable under Illinois law.
2. Motion to strike Local Rule 12(M) statement and to file a Local Rule 12(N) statement
The court notes that it would have jurisdiction over the negligent and intentional spoliation claims under 28 U.S.C. § 1367 because the claims are actionable, if at all, under state law only. Even if Sanders included the claims in his original complaint, the court would decline jurisdiction pursuant to 28 U.S.C. § 1367 (c) because the court is granting summary judgment in favor of the Union on Sanders' federal claims, and because the claims raise novel issues of state law. See Pleva v. Norquist, 195 F.3d 905, 917-18 (7th Cir. 1999) (citing cases).
The magistrate court recommends that the court deny Sanders' motion to strike the Union's Local Rule 12(M) statement and for leave to file a Local Rule 12(N) statement. The court accepts this recommendation in part, rejects it in part, and modifies it in part.
a. Motion to strike
Sanders moved to strike the Union's Local Rule 12(M) statement for two reasons: (1) the statement does not consist of short numbered paragraphs, as required; and (2) the statement relies upon hearsay documents. The magistrate court rejected both arguments. As outlined below, the court accepts the recommendation on the issue of compliance with Local Rule 12(M), and modifies the recommendation on the hearsay issue.
The court accepts the magistrate court's determination that the Union's Local Rule 12(M) statement does, in fact, comply with the rule. Sanders' objection to this finding is simply a re-hashing of the arguments Sanders presented in his original motion. The statement may not be a model statement of facts, but it complies with Local Rule 12(M) by presenting short statements of fact, numbered paragraphs, and adequate citations to the record for support. Accordingly, the court overrules Sanders' objections and accepts the report and recommendation on this issue.
Sanders also moves to strike the Union's Local Rule 12(M) statement, arguing that four documents the Union submitted in support of summary judgment are hearsay, and therefore inadmissible for summary judgment. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The documents to which Sanders objects are: (1) the Union's bylaws; (2) the Union's apprenticeship standards; (3) addendum no. 1 to the Union's hiring procedures; and (4) an "Agreement and Declaration of Trust of Operating Engineers Local 150 Apprenticeship Fund." The magistrate court rejected Sanders' argument, finding that "the documents in issue are all documents generated by defendant, the authenticity and non-hearsay status of which would be readily provable at trial." (Report and Recommendation at 10.)
Sanders' objects to the recommendation, arguing again that the documents are hearsay. Sanders offers no authority to support his proposition, and the court is not obligated to construct legal arguments for litigants. See Doherty v. City of Chicago, 75 F.3d 318, 324 (7th Cir. 1996) ("Given our adversary system of litigation, "[i]t is not the role of this court to research and construct the legal arguments open to parties, especially when they are represented by counsel'") (quoting Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986), cert. denied, 107 S.Ct. 933 (1987)). It is especially difficult in this case, where Sanders makes a blanket objection to the four documents without specifying how the alleged hearsay affects the summary judgment motion. Indeed, Sanders makes no response whatsoever to the summary judgment motion. Nevertheless, the court notes Sanders' objection, and, consistent with its role in deciding summary judgment, will only consider evidence that is otherwise admissible in deciding the motion for summary judgment. See Bombard, 92 F.3d at 562 (noting that the court can only consider admissible evidence when deciding summary judgment motions). Therefore, the court overrules Sanders blanket objection to the documents, but will only consider competent evidence in ruling on the summary judgment motion.
b. Motion for leave to file a Local Rule 12(N) statement
The magistrate court recommends that the court deny Sanders leave to file a Local Rule 12(N) statement. The court rejects the recommendation on this point, and will consider Sanders' Local Rule 12(N) statement.
The court does not believe that Sanders needed leave of court to file the Local Rule 12(N) statement. Per Judge Williams' order, Sanders had until September 8, 1999 to file a response to the summary judgment motion. (See Minute Order of August 25, 1999.) Sanders sought leave to file the Local Rule 12(N) statement on August 30, 1999, well before his response was due. Accordingly, there was no need for Sanders to have leave of court to file the statement.
In any event, Sanders stands to gain little from his Local Rule 12(N) response. Sanders admits that the purpose of filing the response was to preserve the spoliation of evidence claims asserted in the proposed second amended complaint. (See Pl.'s Mot. for Leave to File Mot. to Strike Local Rule 12(M) Statement and Local Rule 12(N) Resp., ¶ 4.) Because the court has denied Sanders leave to file the second amended complaint, Sanders' stated reason for filing the response is moot. Nevertheless, the court has reviewed the response, and considers it in analyzing the Union's summary judgment motion.
B. The Union's motion for summary judgment
Sanders asserts claims under 42 U.S.C. § 1981, and for disparate treatment and disparate impact under Title VII. The Union argues that it is entitled to summary judgment because: (1) Sanders does not have evidence demonstrating his prima facie cases of discrimination; (2) the apprenticeship program, and not the Union, is the proper defendant; and (3) the court must dismiss any claims falling outside of the statute of limitations period. The court finds that the Union is entitled to summary judgment because Sanders presents no evidence to support hisprima facie cases of illegal discrimination. Therefore, the court does not reach the Union's other arguments.
1. Standards for summary judgment
Summary judgment is permissible when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is appropriately entered against a party that fails to demonstrate the existence of an essential element of that party's case. See Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1139 (7th Cir. 1997) (noting that a party opposing summary judgment must do more than raise a metaphysical doubt" as to the material facts) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1355-56 (1986)). Put another way, summary judgment is the stage of a lawsuit where a party must present evidence that could convince a trier of fact to accept his version of events. See Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) (citingSchacht v. Wisconsin Dep't of Corrections, 175 F.3d 497, 503-04 (7th Cir. 1999)). Nevertheless, if a party fails to respond to a summary judgment motion, the court cannot grant the motion unless summary judgment is otherwise appropriate. See Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994) (noting that the court cannot grant summary judgment as a sanction against a party that fails to respond to the motion).
In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Bombard, 92 F.3d at 562. The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See Fed.R.Civ.P. 56(c), see also Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
2. Disparate treatment
In proving his disparate treatment claim, Sanders may demonstrate that the Union "had discriminatory intent either directly . . . or indirectly, through the inferential burden-shifting method known as the McDonnell Douglas test." Kormoczy v. Secretary, U.S. Dept. of HUD., 53 F.3d 821, 823-24 (7th Cir. 1995); see also Kennedy v. Schoenberg, Fisher Newman. Ltd., 140 F.3d 716, 722 (7th Cir. 1998); Hunter, 1998 WL 104635, at *9-10. "These two methods are distinct evidentiary paths." Kormoczy, 53 F.3d at 824. Under either method, the ultimate burden of proof rests with the plaintiff. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993).
a. Direct method
Under the direct method, Sanders may present either direct or circumstantial evidence of discrimination. See Wallace v. SMC Pneumatics, 103 F.3d 1394, 1397 (7th Cir. 1997). "Direct evidence is that which can be interpreted as an acknowledgment of the defendant's discriminatory intent." Kormoczy, 53 F.3d at 824 (citing Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994)). In other words, a plaintiff brings direct evidence when he presents a "smoking gun" of discriminatory intent. See e.g., Bahl v. Royal Indem. Co., 115 F.3d 1283, 1290 n. 6 (7th Cir. 1997) (discussing what constitutes direct evidence of discrimination). "[C]ircumstantial evidence is admissible too, to provide a basis for drawing an inference of intentional discrimination." Troupe, 20 F.3d at 736. Circumstantial evidence under the direct method comes in three forms: (1) suspicious timing, ambiguous statements or behavior directed at other employees in the protected group, and other bits and pieces from which a jury could draw an inference of discriminatory intent; (2) evidence, whether or not rigorously statistical, that employees outside the plaintiffs protected group receive systematically better treatment; and (3) evidence that the plaintiff was qualified for the job in question but passed over in favor of a person outside of the protected group, and that the employer's stated reason for the difference in treatment is a mere pretext for discrimination. See id. (citations omitted). The Seventh Circuit has noted that this third type of circumstantial evidence "is substantially the same as the evidence required in a so-called indirect or McDonnell Douglas case. . . . "Huff v. UARCO, Inc., 122 F.3d 374, 380 (7th Cir. 1997); see also Huff v. UARCO, Inc., 925 F. Supp. 550, 560-61 (N.D.Ill. 1996) (providing an excellent discussion recognizing that the third type of circumstantial evidence "really seems to be simply a shorthand way of describing the McDonnell Douglas burden shifting analysis.").
In this case, the Union argues that Sanders does not have any direct evidence of discrimination. The court again notes that this case is at the summary judgment stage, where Sanders must present evidence that could convince a trier of fact of his version of events. See Shank, 192 F.3d at 682 (noting that summary judgment is the "put up or shut up" stage of a suit) (citations omitted). Here, the court finds that Sanders does not have direct evidence of discrimination. First, in response to the Union's Local Rule 12(M) statement, Sanders admits that he does not have direct evidence of discrimination. (See Pl.'s Local Rule 12(N) Resp. ¶ 22.) Further, in his motion for leave to file an amended complaint, Sanders asserts that he does not have the evidence necessary to establish his discrimination claims. (See Pl.'s Mot. for Leave to File a Second Am. Compl. ¶ 6.) Finally, Sanders has not filed any materials with the court that demonstrate direct evidence of discrimination. Accordingly, the court finds that Sanders presents no direct evidence of illegal discrimination.
b. Indirect method
Under the indirect method, or McDonnell Douglas burden shifting approach, the plaintiff must first establish his prima facie case by demonstrating that: (1) he is a member of a protected group; (2) he met the employer's legitimate work expectations; (3) he was not hired for the position; and (4) the employer treated persons outside of the protected class more favorably. See Robin v. Espo Engineering Corp., 200 F.3d 1081, 1090 (7th Cir. 2000). Once the plaintiff states his prima facie case, a rebuttable presumption is created that the employer's decision not to hire him was based on the "consideration of impermissible factors."See DeLuca v. Winer Industries, 53 F.3d 793, 797 (7th Cir. 1995). "[T]he burden of production (not proof) then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action." Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 377-78 (7th Cir. 1995). If the employer provides a legitimate business explanation, the presumption of discrimination dissolves, and the burden shifts back to the plaintiff to show that the employer's proffered reasons are a pretext for the alleged discrimination. See id, at 378. "Pretext means a lie, specifically a phony reason for some action." Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 348 (7th Cir. 1997). Merely casting doubt on an employer's stated reason for its employment decision is insufficient to establish pretext. See Weisbrot v. Medical College of Wis., 79 F.3d 677, 682 (7th Cir. 1996). Again, the ultimate burden of persuasion rests with, and never shifts from, the plaintiff at every point in the litigation process. See St. Mary's Honor Center, 509 U.S. at 507.
Here, the Union argues that Sanders does not demonstrate hisprima facie case because: (1) Sanders was not qualified to enter the apprenticeship program; and (2) the Union treated Sanders in the same manner as it treated similarly situated non-African Americans. The court first looks at Sanders's qualifications. At Sanders' re-testing in 1987, Sanders admits that he was late four of the five days and that he missed one day altogether. (See Pl.'s Local Rule 12(N) Resp. ¶ 20.) Sanders further admits that he knew that punctuality and attendance were important factors for the training program. (See Pl.'s Local Rule 12(N) Resp. ¶ 19.) According to the Union, this poor record resulted in a low score for Sanders, which made the possibility of his becoming an apprentice extremely low. (See Def.'s Materials in Support of Summ. J. Ex. 9.) Sanders offers nothing to contradict the Union's position. Indeed, Sanders admits he does not have evidence of discrimination. (See Pl.'s Mot. for Leave to File a Second Am. Compl. ¶ 6.) Therefore, the court finds that Sanders fails to present a question of fact as to whether he was qualified to become an apprentice.
The court also finds that Sanders fails to establish that the Union treated non-African Americans more favorably. In 1994, the Union removed from its applicant list 277 persons, including Sanders. The Union claims, and Sanders agrees, that the vast majority of these persons were white. (See Pl.'s Local Rule 12(N) Resp. ¶ 28.) In addition, Sanders admits that he does not have any evidence demonstrating that the Union treats non-African American applicants differently from similarly situated African American applicants. (See Pl.'s Mot. for Leave to File a Second Am. Compl. ¶ 9.) Therefore, the court finds that Sanders fails to present a question of fact as to whether the Union treated him differently from similarly situated non-African American applicants.
3. Disparate impact
Disparate impact differs from disparate treatment. Disparate impact does not require a showing of intentional discrimination by the plaintiff. See Vitug, 88 F.3d at 512-13. It exists where a specific employment practice, neutral on its face, has a disproportionately negative effect on members of a legally protected class. See id. A plaintiff demonstrates a prima facie case for disparate impact by: (1) isolating and identifying the specific employment practices that are allegedly responsible for the asserted disparity; and (2) offering statistical evidence demonstrating that the employment practice in question caused the exclusion of applicants from the position because of their membership in the protected group. See id.
Here, the Union argues, and the court agrees, that Sanders fails to present a prima facie case of disparate impact. Sanders' first amended complaint seems to allege that the Union employs a subjective method of scoring that results in discrimination against African Americans. Assuming, without deciding, that such an allegation is sufficient to demonstrate the first element, Sanders fails to demonstrate the second element. As noted above, Sanders must present statistical evidence that the alleged use of subjective criteria caused the exclusion of African Americans from the Union's apprenticeship program. See id. (noting that Title VII does not prohibit subjective employment practices unless they have a disproportionately negative impact on members of a protected class). Sanders presents no such evidence. Further, although not dispositive, the court notes that Sanders drops the disparate impact claims from his proposed second amended complaint. (See Pl.'s Mot. for Leave to File a Second Am. Compl. ¶ 7.) On these facts, the court finds that Sanders fails to demonstrate a prima facie case of disparate impact.
Section 1981 provides that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts, . . . as is enjoyed by white citizens." 42 U.S.C. § 1981 (a). "`Although § 1981 and Title VII differ in the types of discrimination they proscribe, the methods of proof and elements of the case are essentially identical.'" Johnson v. City of Fort Wayne, 91 F.3d 922, 940 (7th Cir. 1996) (citations omitted). The court's finding that the Union is entitled to summary judgment on Sanders' Title VII claims necessarily dooms his § 1981 claim as well. See id. Therefore, consistent with the preceding analysis of Sanders' Title VII claims, the court finds that Sanders presents no evidence of a § 1981 claim, and grants summary judgment in favor of the Union.
In sum, the court finds that Sanders presents no evidence demonstrating the prima facie elements of his discrimination claims. It is Sanders' burden to present such evidence, and his failure to do so entitles the Union to summary judgment. See Shank, 192 F.3d at 682 (citation omitted).
III. CONCLUSION
For the foregoing reasons, the court: (1) denies Sanders' motion for leave to file a second amended complaint; (2) denies Sanders' motion to strike the Union's Local Rule 12(M) statement; (3) grants Sanders' motion to file a Local Rule 12(N) response; and (4) grants the Union's motion for summary judgment. Case terminated.
IT IS SO ORDERED.