Opinion
IP 01-1198-C-T/F.
October 24, 2002
Entry On Motion For Summary Judgment
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, James O. Shaw, sued Defendant, John Potter, Postmaster General of the United States Postal Service, alleging age discrimination in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621 et seq. This cause comes before the court on Defendant's Motion For Summary Judgment.
I. Background
These facts are undisputed unless noted otherwise. Plaintiff, James O. Shaw, is currently employed as a motor vehicle operator (or driver) at the Postal Service's Motor Vehicle Service ("MVS") facility in Indianapolis, Indiana. He has held this position since June 1986. Mr. Shaw was born in 1936. The Postal Service has two designated classes of drivers: Level 6 drivers who are qualified to operate tractor trailer trucks and Level 5 drivers who are qualified to operate only straight trucks. To operate a tractor trailer truck in Indiana, a person must have a Class A Commercial Driver's License ("CDL"). Mr. Shaw did not obtain his Class A CDL until October 22, 1998.
Overtime driving assignments at MVS are governed by a collective bargaining agreement and a local memorandum of understanding between the Postal Service and the Motor Vehicle Craft of the American Postal Workers Union (the "Union"). At the start of each quarter, drivers sign up for overtime on the Overtime Desired List ("ODL"). Priority for overtime shifts is based on seniority. A driver may not be eligible for a particular overtime run due to unavailability, for example, a scheduled leave, or lack of qualification. Under the agreements with the Union, if the driver who is up next on the ODL is unavailable or unqualified for a run, then he is passed over and the run is offered to the next driver on the ODL.
Charles Berger, manager of the Postal Service's Vehicle Maintenance Facility in Indianapolis, states that drivers with part-time flexible status ("PTF") are used to cover runs for full-time drivers on leave. According to Mr. Berger, when an overtime run is available, management is to look to the pool of PTF drivers to cover the run, and if there are more runs than PTF drivers available, then management assigns the run as overtime to a full-time driver according to the ODL. Mr. Berger also states that when management knows of the availability of an overtime assignment in advance, the general supervisor typically will look to the ODL and determine which driver will be offered the run. He further states that when management does not become aware of an overtime run until the day of or day before of the run, then the direct supervisor typically will look to the ODL and determine which driver will be offered the run.
From 1992 until the end of 1997 Larrie Dillard, a general supervisor, was responsible for maintaining the driver schedule for all tours, including overtime assignments that the Postal Service knew of in advance. He transferred to another position at the end of 1997 and no longer had that responsibility, which then went to Andrew Allen. During 1997 Mr. Allen was Plaintiff's direct supervisor and responsible for assigning overtime of which management was unaware in advance.
The position of dispatch clerk at MVS is distinct from a driver position. Overtime assignments for the dispatch clerk are made under a different process than overtime run assignments. Clerks are given priority over drivers for dispatch clerk overtime shifts. If the pool of full-time clerks is exhausted and the dispatch clerk overtime shift remains available, then management will consider full-time drivers on light or limited duty for the overtime. If none of those drivers take the shift, then the shift is offered to full-time drivers. Both Mr. Dillard and Mr. Allen were responsible for filling the dispatch clerk overtime shifts that became available. They had broad discretion in choosing which driver would be offered an overtime shift in that position.
II. Summary Judgment Standard
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If the nonmovant bears the burden of proof at trial on an issue, that party can avoid summary judgment only by setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). The mere existence of an alleged factual dispute is insufficient to defeat a summary judgment motion. Vukadinovich v. Bd. of Sch. Tr. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir.), cert. denied, No. 01-11005, — S.Ct. ___, 2002 WL 1434359 (Oct. 7, 2002). Rather, the nonmovant must "present definite, competent evidence to rebut the motion." E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432, 437 (7th Cir. 2000).
III. Discussion
Mr. Shaw brought this suit alleging that he was denied overtime assignments because of his age in violation of the ADEA. Defendant contends that most of Plaintiff's claims are barred as untimely. As for any claims which are timely, Defendant contends that Plaintiff cannot establish a prima facie case of age discrimination, there was a legitimate, nondiscriminatory reason for its decisions not to assign certain overtime to Plaintiff, and Plaintiff cannot raise a triable issue of pretext.
In Defendant's reply brief, Defendant for the first time argues that Plaintiff was not subjected to an adverse employment action. As this argument was not raised in Defendant's initial supporting brief, the court chooses not to consider it.
A federal employee who believes he has been discriminated against in employment on the basis of age must initiate contact with an Equal Employment Opportunity ("EEO") counselor within forty-five days of the alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1). This time period is treated as a limitations period, see Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995), and is a precondition to bringing a Title VII action based on such alleged discriminatory act. See, e.g., Gibson v. West, 201 F.3d 990, 993-94 (7th Cir. 2000). This forty-five day period "like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Lyons v. England, No. 00-55343, 2002 WL 31254934, at *18 n. 5 (9th Cir. Oct. 9, 2002); see also Belgrave v. Pena, 254 F.3d 384, 386-87 (2nd Cir. 2001).
In July 1997, Plaintiff completed an EEO form stating he had become aware of flagrant discrimination in August 1995 in reference to the denial of overtime claim. However, Plaintiff first initiated contact with an EEO counselor on July 16, 1997. Thus, any claim based on an alleged discriminatory act which occurred more than 45 days before that date, June 1, 1997, is barred as untimely.
Plaintiff claims that sixty to ninety days before July 16, he telephoned the EEO to complain about discrimination in overtime assignments. He also claims that before 1997 he was unaware of how to make an EEO complaint. Even if these things are true, they do not excuse the lack of timely contact with an EEO counselor. See Tinnin v. Danzig, No. CIV. A. 99-1153, 2000 WL 190255, at *2 (E.D.Pa. Feb. 4, 2000) (dicta stating that a telephone call to the EEO office where plaintiff could not remember with whom she spoke or that individual was a counselor was insufficient to establish plaintiff initiated contact as required under regulation; case decided on waiver grounds); 29 C.F.R. § 1614.105(a)(2) (providing for extension of 45-day period when employee was unaware of time limitation).
Plaintiff offers no evidence that he spoke with an EEO counselor during the telephone call and does not claim a lack of knowledge about the 45-day filing requirement. Thus, he has not shown that the 45-day period should be extended. Plaintiff alleges that the Postal Service discriminated against him after July 1997 because of his age by continuing to deny him overtime. Yet, he did not contact an EEO counselor to complain of this post-July alleged discrimination. Plaintiff claims that the alleged discriminatory acts which occurred subsequent to his EEO contact are within the scope of his EEO Charge and thus actionable. National Railroad Passenger Corp. v. Morgan, ___ U.S. ___, 122 S.Ct. 2061 (2002), reveals the error in this claim. In National Railroad, the Supreme Court held that under Title VII, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 2072. The Court explained that "[e]ach discrete discriminatory act" such as "termination, failure to promote, denial of transfer, or refusal to hire" which is "easy to identify" "constitutes a separate actionable `unlawful employment practice'" for which a timely charge must be filed. Id. at 2072-73. The Court rejected the argument that a claim based on a discrete discriminatory act which occurred outside the charge filing period could be considered as long as the act is "plausibly or sufficiently related" to another discriminatory act within the charge filing period. Id.
Thus, under National Railroad, Plaintiff's initiation of EEO contact regarding an alleged denial of overtime in July 1997 does not save his claims based on alleged denial of overtime which occurred thereafter. Each denial of overtime constitutes a discrete discriminatory act, easily identifiable, for which Plaintiff was required to initiate EEO contact. Because Plaintiff did not initiate EEO contact at any time after July 1997, his claims based on the denial of overtime after July 1997 are barred for failure of Plaintiff to fulfill a precondition to filing suit under Title VII.
It could be argued that a claim for denial of overtime that occurred in July 1997 but after Plaintiff initiated contact with an EEO counselor also is barred. Defendant, however, has not made this argument and seeks preclusion of claims based on post-July 1997 conduct only.
Moreover, in his EEO investigative affidavit and other documents supporting his charge of discrimination completed on February 12, 1998, Plaintiff cited three, and only three, dates on which he alleged the Postal Service discriminated against him: July 12, 1997; July 19, 1997; and July 26, 1997. The specific mention of these three dates and none thereafter cuts against any claim Plaintiff may have had based on post-July 1997 conduct.
Plaintiff's claims that he was denied truck driving and clerk overtime in July 1997 because of his age in violation of the ADEA. A plaintiff alleging age discrimination in employment may prove his claim either under the direct approach or under the approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002). Under the direct approach, a plaintiff must offer evidence that the challenged employment decision was motivated by impermissible discrimination. See Marshall v. Am. Hosp. Ass'n, 157 F.3d 520, 525 (7th Cir. 1998); Kennedy v. Schoenberg, Fisher Newman, Ltd., 140 F.3d 716, 722 (7th Cir. 1997). This evidence may be direct, such as an acknowledgment by the employer of discriminatory intent, or circumstantial, such as ambiguous statements or suspicious timing. See Kennedy, 140 F.3d at 724-25; Troupe v. May Dep't Stores, Inc., 20 F.3d 734, 737 (7th Cir. 1994). Direct evidence is evidence which "if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." Kennedy, 140 F.3d at 723 (quotation omitted).
The Seventh Circuit has said that "[w]hen a plaintiff proceeds under the direct proof method, allegedly discriminatory statements are relevant . . . only if they are both made by the decisionmaker and related to the employment decision at issue." Fyfe v. City of Fort Wayne, 241 F.3d 597, 602 (7th Cir. 2001). The Seventh Circuit also has said that to be direct evidence of discrimination, "isolated comments must be contemporaneous with the [employment decision] or causally related to the . . . decision making process." Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring)); see also Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001) (indicating that discriminatory feelings expressed by a decisionmaker or someone with input into the challenged decision "(1) around the time of, and (2) in reference to" the decision can be evidence of discrimination) (citation omitted).
Biased remarks which are unrelated to the employment decision at issue, whether made by a decisionmaker or coworker, are considered "stray remarks" and are not direct evidence of discriminatory intent. Indurante v. Local 705, Int'l Bhd. of Teamsters, AFL-CIO, 160 F.3d 364, 367 (7th Cir. 1998); O'Connor v. DePaul Univ., 123 F.3d 665, 671 (7th Cir. 1997).
Defendant maintains that Plaintiff has no direct evidence of discrimination. The court disagrees — to an extent. Plaintiff has offered evidence of age-based remarks made by Dillard around the time of the challenged overtime assignments and also in reference to overtime assignments. Driver Chad Steenburgen testified that from 1995 until December 1997 he was asked approximately five or six times by Dillard to take overtime and if he did not take it, Dillard would have to give it to Shaw. (Steenburgen Dep. at 40-41, 45.) Mr. Steenburgen also testified that on one of these occasions during the summer of 1997, Dillard referred to Shaw as "old man." (Id. at 41, 46-47, 48-49.) Driver William A. Skelton testified about a manipulation of the overtime schedule to prevent Shaw from getting overtime. (Skelton Dep. at 23-25.) Though Skelton testified that he did not know how overtime was assigned on any particular instance because he was not involved in making the decision (id. at 26), he also testified that Dillard told him that he used regular drivers all the way up to Shaw's name and then switched over to PTF drivers when Shaw's name came up. (Id. at 29.) This testimony, when viewed in the light most favorable to Plaintiff, raises a reasonable inference that Dillard manipulated the ODL to prevent Shaw from getting overtime assignments.
All of these statements attributed to Dillard were made around July 1997 and/or directly related to Dillard's decisional process in making overtime assignments. They therefore would satisfy the requirement of a temporal or causal relation to the decision-making process and constitute direct evidence of discrimination, provided Plaintiff can show that Dillard was the relevant decisionmaker. It is at this point that Plaintiff's proof falters in respect to the overtime run assignments.
It could be argued that the evidence of Dillard's alleged discriminatory statements relates only to overtime driving assignments and not overtime dispatch clerk assignments. However, it is reasonable to infer that the evidence applies equally to overtime dispatch clerk assignments. The evidence raises a reasonable inference that Dillard was biased against Shaw because of his age. If Dillard held such a bias, then another reasonable inference is that his bias infected all of his overtime assignment decisions, including dispatch clerk assignments.
The undisputed evidence is that the general supervisor (Dillard) typically made the overtime run assignments when management had advance notice that overtime would be available, whereas, the immediate supervisor (Allen) typically made the assignments when there was no advance notice. (Berger Decl. ¶¶ 15, 16.) Plaintiff has offered no evidence to establish whether there was any advance notice of the availability of overtime with respect to the overtime driving assignments on July 12, 19 and 26. He has offered no evidence that these assignments were not made in the typical manner. And, he has offered no other evidence to raise a reasonable inference that Dillard rather than Allen made these particular overtime run assignments. Plaintiff claims that Allen was Dillard's "cat's paw," but cites no record evidence to raise a reasonable inference that Dillard influenced Allen's decision-making or that Dillard's bias was Allen's motivation in making the assignments. This failure means that Plaintiff's claim of a cat's paw is unavailing. See Schreiner v. Caterpillar, Inc., 250 F.3d 1096, 1100-01 (7th Cir. 2001) (holding no abuse of discretion to exclude evidence of area supervisor's derogatory comments about women where there was no evidence that the comments influenced line supervisor's refusal to submit plaintiff's request for pay increase). Consequently, Plaintiff has insufficient evidence relating to overtime run assignments under the direct approach to withstand summary judgment.
This, however, does not necessarily doom Plaintiff's claims based on overtime run assignments as he can proceed under the McDonnell Douglas framework. See Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002).
Plaintiff's proof in respect to the dispatch clerk overtime shifts does not suffer from the same deficit. The evidence establishes that both Dillard and Allen were responsible for filling the dispatch clerk overtime shifts available during July 1997. (Dillard Decl. ¶ 11.) Defendant argues that Allen selected Schlicting for the dispatch clerk overtime shifts on July 19 and 26. The evidence cited for support (Allen's affidavit), however, fails to raise a reasonable inference that Allen made the selection. Instead, the cited evidence establishes that the decisions were made and the supposed reasons for the decision. (Def.'s Ex. 4 (stating that Schlicting "was used" and "selected")). Allen's affidavit does not establish who — Allen or Dillard — made the particular decisions at issue.
Defendant's brief does not directly address the dispatch clerk overtime shift which, according to Allen's affidavit, was available on July 12. Allen's affidavit states that the shift was filled by Larry Bolander, who the record establishes was a dispatch clerk. However, Plaintiff has stated that the shift was filled by Schlicting. (See Def.'s Ex. 8 at 3 (Plaintiff stated Schlicting worked as dispatch clerk on 7-12-96 but the court believes that he meant 7-12-97.)) Yet, Plaintiff offers nothing to show that he has personal knowledge about who worked the dispatch clerk overtime shift on July 12. That day was a Saturday, Saturdays were Plaintiff's regularly scheduled day off, and he has not indicated that he had any contact which the dispatch clerk, whoever it may have been. Plaintiff does not dispute the evidence that regular dispatch clerks had overtime priority for the dispatch clerk position. If Bolander, a regular dispatch clerk, worked the overtime shift on July 12, the parties should resolve any dispute over this overtime assignment before trial.
Based on the evidence that Dillard and Allen were responsible for filling the dispatch clerk overtime shifts, a reasonable finder of fact could infer that Dillard played a part in deciding who worked such shifts on July 12, 19 and 26. In other words, a trier of fact could find that Dillard and Allen made a joint decision regarding these dispatch clerk overtime shifts. Thus, Plaintiff has raised a reasonable inference that Dillard was a decisonmaker with respect to the dispatch clerk overtime assignments. The court therefore finds that Plaintiff has direct evidence that the dispatch clerk overtime assignments on July 12, 19, and 26 were motivated by impermissible discrimination.
Defendant argues that two facts vitiate against any inference of discrimination: (1) Mr. Dillard and Mr. Allen assigned Plaintiff overtime in both July and August 1997 and Plaintiff worked approximately 89.44 overtime hours in the latter half of 1997; and (2) once Plaintiff obtained his Class A CDL he was assigned more overtime than Mr. Spalding and approximately the same number of overtime hours as Mr. Schlicting. In this regard Defendant relies on the common actor presumption expressed in Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 399 (7th Cir. 1997) (stating that "when an employee is hired and fired by the same decision-maker in a relatively short time span, a presumption, or inference, of nondiscrimination arises"). These facts cited by Defendant may cut against a finding of discrimination, but on the other hand, they may not.
The Seventh Circuit repeatedly has said that the presumption is "not irrebuttable". Roberts v. Separators, Inc., 172 F.3d 448, 452 (7th Cir. 1999); Mills v. Health Care Serv. Corp., 171 F.3d 450, 457 n. 5 (7th Cir. 1999). The evidence establishes that around the end of 1997 Dillard was transferred to a position in which he no longer maintained the driver schedule for all tours. While Plaintiff's obtainment of his Class A CDL is one possible explanation for his increased overtime assignments, the shift in some of the decisionmaking from Dillard (who is alleged to have harbored age-based animus) to Allen (who is not so alleged) is another possible explanation. The trier of fact must decide which of these explanations is more plausible.
The evidence shows that Shaw worked more than twice as many overtime hours in 1998 as he did in the latter half of 1997. This evidence, like the comparison of overtime hours worked in 1999 by Shaw, Schlicting and Spalding, could also suggest that the increase in Shaw's overtime hours was related to Dillard's removal from the decision-making process.
The court finds that a reasonable trier of fact could infer that Defendant's dispatch clerk overtime assignments on July 12, 19 and 26 were motivated by Plaintiff's age. Therefore, summary judgment on Plaintiff's age discrimination claim based on the denial of these overtime assignments is DENIED.
The court now turns back to the claims based on a denial of overtime run assignments. Under the McDonnell Douglas approach, Plaintiff must first demonstrate a prima facie case of age discrimination, which he can do by showing that: he was in the protected class (over 40 years of age), his job performance met his employer's legitimate expectations, he was subjected to an adverse employment action, and similarly situated, substantially younger employees were treated more favorably. See, e.g., Koski v. Standex Int'l Corp., No. 01-3505, 2002 WL 31300333 at *3 (7th Cir. Oct. 15, 2002); Franzoni, 300 F.3d at 771. If Plaintiff demonstrates a prima facie case, then Defendant must offer a legitimate, nondiscriminatory reason for the adverse action. See Koski, 2002 WL 31300333, at *4; Franzoni, 300 F.3d at 772. If Defendant meets this burden, then Plaintiff must demonstrate that Defendant's proffered reason is a pretext for age discrimination. See Koski, 2002 WL 31300333, at *4; Franzoni, 300 F.3d at 772. Defendant argues (1) Plaintiff cannot demonstrate that similarly situated employees were treated more favorably, (2) Defendant had a legitimate nondiscriminatory reason for not giving Plaintiff certain overtime shifts, and (3) Plaintiff has no evidence of pretext.
To meet his burden of demonstrating that another employee is "similarly situated," Plaintiff must show "that there is someone who is directly comparable to [him] in all material respects." Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (citations omitted). The court "must look at all relevant factors, the number of which depends on the context of the case." Id. The relevant factors include, for example, that the plaintiff was similarly situated to another employee in respect to qualifications, provided this factor was taken into account by the employer in making the challenged employment decision. See, e.g., Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000).
Plaintiff compares himself to two employees: Rick Spalding and Dave Schlichting. Defendant does not dispute that they are substantially younger than Plaintiff. Instead, Defendant argues that Plaintiff cannot show sufficient similarity to these employees because he did not have a Class A CDL and was not qualified to operate a tractor trailer truck, whereas, each of them had a Class A CDL and was so qualified. Defendant claims that the majority of the runs (50 of 63) in 1997 utilized tractor trailer trucks, and since Plaintiff did not have a Class A CDL he was precluded from overtime on such runs.
Though Plaintiff's lack of tractor trailer qualification could support a finding that Plaintiff was not similarly situated to Spalding or Schlichting under certain situations, one cannot lose sight of the other relevant facts in this case. Specifically, there is evidence which supports a finding that Dillard manipulated the overtime assignments so that when Shaw's name came up on the ODL the available overtime run was a tractor trailer run or dual run for which Shaw was not qualified. Such manipulation would account for Plaintiff's exclusion from some overtime runs based on his lack of qualification. Furthermore, the mere fact that Plaintiff was not qualified for the majority of runs reveals nothing about his qualification for the runs for which overtime actually was available. Given the evidence regarding manipulation of the ODL, the court cannot accept the Defendant's argument that Plaintiff's lack of qualification to drive a tractor trailer truck accounts for any disparity in the overtime assignments given Plaintiff, Spalding and Schlicting.
Defendant also maintains that Plaintiff is not similarly situated to Mr. Schlicting because Mr. Schlicting had ten years more seniority than he and overtime runs were assigned on the basis of seniority. Even assuming that Schlicting is not similarly situated to Plaintiff because of his seniority, that leaves Spalding who had less seniority than Plaintiff.
Defendant argues that even if Plaintiff can show sufficient similarity to Schlicting or Spalding, he cannot show that either of them were treated more favorably. Though Plaintiff argues he can demonstrate a prima facie case, his opposition brief does not directly address this argument. Nonetheless, Defendant's own evidence suggests that Plaintiff can establish that Spalding was treated more favorably than he with respect to the overtime run assignments on July 12, 19 and 26. Defendant's Exhibit C reveals that Spalding worked overtime runs on each of those days, but Shaw was not. Thus, Plaintiff can show that Spalding was treated more favorably than he.
Defendant contends that it had a legitimate, nondiscriminatory reason for not offering Plaintiff overtime and Plaintiff cannot demonstrate pretext. Defendant states that the July 12 overtime run offered to Mr. Spalding was a dual run, involving some trips with a straight tuck and some trips with a tractor trailer, and thus, Plaintiff was not qualified for the run. Defendant claims that Plaintiff was not offered the overtime run on July 19 because the run was a tractor trailer run for which he was not qualified. Defendant has not directly addressed the overtime run assignment on July 26. However, the court understands Defendant as asserting that Plaintiff was not offered the overtime run assignment on July 26 because it was either a dual run or tractor trailer run for which Plaintiff was unqualified. The court finds that Defendant has offered legitimate, nondiscriminatory reasons for not offering Plaintiff these overtime runs. Therefore, Plaintiff must offer some evidence of pretext in order to survive summary judgment.
Defendant also submits that the ODL shows that Plaintiff was scheduled to be on annual leave on July 12, and thus would not have been considered for the run even if qualified. Even if true, and Plaintiff disputes that he was on annual leave on that day (his testimony that he was not is sufficient by itself to raise a factual issue and, moreover, his pay stub submitted as an exhibit seems to support his position), Defendant has not argued or shown that it relied on Plaintiff's leave status in making the overtime run assignment on July 12. An employer has to be able to show that its proffered reason actually motivated the decision in question.
Defendant has indicated that the reasons Plaintiff was not offered overtime on July 12, 19, and 26 are the same reasons he was not offered overtime on other dates. The court infers that these same reasons apply to other assignments on those days.
Pretext is not merely a mistaken or incorrect decision. See, e.g., Franzoni v. Hartmarx Corp., 300 F.3d 767, 772 (7th Cir. 2002). Pretext is a "dishonest explanation; a lie rather than an oddity or an error." Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002) (quotation omitted). To demonstrate pretext, Plaintiff may show that the proffered reason is factually baseless, the reason did not actually motivate the challenged decision, or the reason was insufficient to motivate the decision. See Koski v. Standex Int'l Corp., No. 01-3505, 2002 WL 31300333 at *3 (7th Cir. Oct. 15, 2002); Grube v. Lau Indus., Inc., 257 F.3d 723, 730 (7th Cir. 2001) (citations omitted).
Plaintiff has come forward with insufficient evidence to raise a triable issue as to prextext. He has not contested the evidence that the overtime runs on July 12, 19 and 26 were tractor trailer truck or dual truck runs for which he was not qualified. He can hardly argue that his lack of qualification was insufficient motivation for the assignments — to do so he would have to argue that Defendant should have assigned him to a run requiring him to drive a truck Defendant knew he was not licensed to drive. Such an argument would fall on its face. And, Plaintiff has not raised a reasonable inference that his lack of qualification did not actually motivate the decision. If Plaintiff had evidence that Dillard was involved in the decisionmaking with respect to assigning the overtime runs at issue, he could have raised a reasonable inference of pretext given the evidence that Dillard manipulated the ODL and overtime assignments. But Plaintiff has offered no such evidence. Therefore, the court finds that Defendant is entitled to summary judgment on Plaintiff's age discrimination claims based on the denial of overtime runs on July 12, 19 and 26.
IV. Conclusion
For the foregoing reasons, Defendant's motion for summary judgment will be GRANTED in part and DENIED in part consistent with this entry. Because of the pendency of the claim regarding dispatch clerk overtime, the entry of judgment will be deferred until that claim is decided. A telephone conference will be set to select a date for the bench trial in this case.
ALL OF WHICH IS ORDERED this 24th day of October 2002.