Opinion
Cause No. IP 99-0560 C-M/S
April 26, 2000
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on the motion of defendant, Taco Bell Corporation ("Taco Bell"), seeking judgment in its favor as a matter of law on all of the claims presented in the complaint filed by Dean Sonnenberg ("Sonnenberg") on April 22, 1999. Sonnenberg brought this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Sonnenberg alleges that he suffered discrimination when Taco Bell terminated his employment as a restaurant manager because of his age and his sex. Compl. ¶¶ 14, 15. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS the defendant's motion for summary judgment.
I. FACTUAL PROCEDURAL BACKGROUND
Taco Bell operates a chain of fast-food, Mexican-style restaurants. Def.'s Ex. A ¶ 1. Each store is staffed by a general manager, who is assisted by one or several assistant managers and one or more shift leaders. Id. The management team supervises the line employees who are known as the "crew." Id. Each management team is responsible for the crew's performance in the areas of food preparation, customer service, store cleanliness and adherence to Taco Bell's standards of conduct. Id. The entire store is then supervised by either a market manager or a restaurant support manager who is responsible for overseeing a number of restaurants within the market to which they are assigned. Id.
Sonnenberg began working for Taco Bell in 1994 as a manager trainee. Id. ¶ 2. Following the completion of his training, Sonnenberg was promoted to an assistant manager position in the Clarksville, Indiana store. Sonnenberg Dep. at 74. Sonnenberg was later promoted to general manager of the Clarksville store. In April of 1996, he hired Joel Brown ("Brown") as a crew member. Id. at 134. Several months later, Brown became eligible for promotion to a shift leader. Def.'s Ex. F. ¶ 2.
At the time Sonnenberg was considering Brown for promotion, Taco Bell had a company policy which required that a criminal background check be run on a prospective managerial employee or on any person who would be getting store keys or have responsibility for handling money. Peters Dep. at 56. This included shift leaders. Id. As a general manager, it was Sonnenberg's responsibility to conduct such checks. Def.'s Ex. A. ¶ 10. The results of the check would reveal whether an employee was eligible for hire or promotion, based on his criminal record. Id. A felony conviction generally precluded promotion or hiring. Id.
On June 6, 1996, Brown was arrested for the dangerous control of a handgun and sale of a handgun to a minor. Id. ¶ 9. Several days later, Theresa McClure ("McClure"), Sonnenberg's assistant manager, ordered a criminal background check on Brown to determine whether he was eligible for promotion. Pl.'s Ex. 3. The search covered the period up to and including June 7, 1996. Id. Taco Bell received an email from the company conducting the check that declared Brown "eligible for employment." Pl.'s Ex. 4. Nevertheless, Brown was not promoted because Sonnenberg knew that he could soon have a criminal record. Sonnenberg Dep. at 121. At some point, Sonnenberg discussed Brown's pending charges with Dan Vincent, a loss prevention manager, and Mark Peters ("Peters"), the Louisville market manager. Id. at 120-21. Vincent reportedly said, "I'm not going to tell you to fire him," because "they usually leave that decision up to the managers." Id. at 121. Peters stated that Brown could not be a shift manager. Id. In the fall of 1996, Brown was convicted of dangerous control of a weapon as a C felony. Pl.'s Ex. 2. Sonnenberg was aware of his conviction and gave Brown time off to serve his jail sentence in early October. Id.
At the end of 1996, Sonnenberg was transferred to the Jeffersonville, Indiana store. Sonnenberg Dep. at 135. In November of 1997, he rehired Brown, who had quit at some point after Sonnenberg left the Clarksville store, as a crew member. Id. at 135-36. Brown submitted an application for employment, indicating that he had a criminal record. Id. at 152. Sonnenberg did not run a criminal background check on Brown. Nor did he contact Peters, Glenn Shaffer, the regional sales manager in Sonnenberg's territory, or anyone in Taco Bell's loss prevention or human resources department to discuss Brown's rehiring, as required by company policy. Id. at 154.
Paragraph 11 of the Taco Bell Manager Code of Conduct provides: "When crew members admit to criminal activity on their applications, contact your RSM/MM or HR generalist."
During March of 1998, McClure was temporarily assigned to the Jeffersonville store to cover Sonnenberg's vacation period. Def.'s Ex. A ¶ 1. McClure recognized Brown from his previous employment with Taco Bell. Id. ¶ 14. McClure noted that Sonnenberg had given Brown keys to the restaurant as well as the safe and that Brown was counting money in the cash registers. Def.'s Ex. F ¶ 5. In light of her knowledge of Brown's criminal record, McClure contacted her supervisor and reported that Sonnenberg had entrusted Brown with keys to the restaurant and safe and that Brown was handling money in violation of company policy. Id. McClure also reported that Brown was engaged to and living with the store's assistant manager.
Taco Bell policy requires that a criminal background check be conducted on any employee "prior to [the assumption] of managerial duties, including holding store keys, possessing cash register swipe cards and having access to the store safe." Def.'s Ex. D-3.
Taco Bell policy prohibits people who are living together or who are related to each other from working in the same restaurant. Def.'s Ex. D-2, ¶ 16-17.
On March 19, 1998, after Sonnenberg returned form vacation, a meeting was held between Sonnenberg and his supervisors, Shaffer and Peters. Def.'s Ex. E ¶ 5. At the meeting, Shaffer and Peters addressed Sonnenberg's failure to follow company procedure regarding criminal background checks, his decision to rehire Brown and Brown's disclosure of a criminal record on his November 1997 employment application. Id. Sonnenberg admitted that he was aware of Brown's criminal history and that he gave his store keys to Brown. Def.'s Ex. D-1 at 125; Def.'s Ex. E ¶ 6.
Following the meeting with Sonnenberg, Shaffer and Peters discussed their concerns with Sandra Young, a human resources manager. Def.'s Ex. E ¶ 7. The group determined that Sonnenberg had committed a serious violation of company policy by rehiring Brown and failing to run a criminal check before giving him store keys and responsibility for handling cash. Id. They also concluded that Sonnenberg had turned a blind eye towards another serious violation that was being committed by Brown and Sonnenberg's assistant manager due to their intimate relationship. Id. Sonnenberg was terminated on March 27, 1998 at the age of forty-four. Def.'s Ex. D-1 at 27; Sonnenberg Dep. at 48.
On May 11, 1998, Sonnenberg filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Compl. ¶ 4. The EEOC issued a right to sue letter. Compl. ¶ 5. This action followed on April 22, 1999. At present, this case is before the Court on the motion for summary judgment filed by Taco Bell on February 7, 2000. Taco Bell asserts that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. The Court has jurisdiction over this matter pursuant to 29 U.S.C. § 621 and 623, 42 U.S.C. § 2000e-5(g) and 28 U.S.C. § 1331. Having reviewed the factual background, the Court now turns to a brief overview of the standards governing its decision.
II. STANDARDS A. SUMMARY JUDGMENT
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id.
The moving party has the initial burden to show the absence of genuine issues of material fact. See Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann's Inc., Bakeries, 121 F.3d 281, 286 (7th Cir. 1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a summary judgment motion, a court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable factfinder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23; Shields Enters., 975 F.2d at 1294.
The summary judgment standard is applied with added rigor in employment discrimination cases because of the crucial role played by motive, intent and credibility in resolving such cases. Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). However, even when discriminatory intent is at issue, the evidence must not only address the issue of intent, but also relate to the specific employment decision in question. Cowan v. Glenbrook Security Serv., Inc., 123 F.3d 438, 443 (7th Cir. 1997). Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of Sch. Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. DISCRIMINATION CLAIMS
In order to survive summary judgment, a plaintiff in a discrimination case need not "produce the equivalent of an admission of guilt by the defendant." Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672, 676 (7th Cir. 1997) (quoting Troupe v. May Dep't Stores Co., 20 F.3d 734, 737 (7th Cir. 1994)). Rather, the plaintiff need only raise an inference of discrimination. Id. This can be done using two "different evidentiary paths." Randle v. LaSalle Telecomm., Inc., 876 F.2d 563, 568 (7th Cir. 1989). The first, and less common, method is to prove by direct or circumstantial evidence that a discriminatory motive caused the adverse employment action. See Geier v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir. 1996). This is called the direct method of proof, and it is used when a plaintiff has evidence constituting an acknowledgment by the employer of discriminatory intent (direct evidence), or evidence of circumstances from which a jury could infer that a discriminatory motive was at work (circumstantial evidence). Id.
"Three types of circumstantial evidence of intentional discrimination can be distinguished," the court wrote in Troupe, 20 F.3d at 736. "The first consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn." Id. This is the most common type of evidence presented in employment discrimination cases. Id. The second type of circumstantial evidence involves a comparison between the plaintiff and other employees who are similarly situated to him except for the protected characteristic, and a showing that the other employees "received systematically better treatment." Id. This type of evidence need not be "rigorously statistical" to accomplish its purpose, and it may be anecdotal. Id.; see also EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 303 (7th Cir. 1991).
The Seventh Circuit has identified a third type of circumstantial evidence for proving discriminatory intent, although it is ordinarily referred to as the indirect method of proof. It consists of "evidence that the plaintiff was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination." Troupe, 20 F.3d at 736 (citing St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742 (1993)). Denoted as the "pretext" type of circumstantial evidence, this method is recognizable by those familiar with employment discrimination litigation as the McDonnell-Douglas burden-shifting method of proof. Thus, the third type of circumstantial evidence identified by the Troupe court represents the second evidentiary path noted by the Randle court for proving discriminatory intent. Each type of circumstantial evidence may be sufficient by itself to prove discriminatory intent, depending on its strength, or they may be used together. Id.
III. DISCUSSION A. AGE DISCRIMINATION
Sonnenberg contends that he was terminated from his employment with Taco Bell because he was over forty years of age. To prove his claim of discriminatory discharge, Sonnenberg has chosen to use both the direct and indirect methods of proof. The "direct" evidence of age discrimination Sonnenberg offers is comments made by Anthony Kron, a restaurant general manager at the New Albany restaurant, that Sonnenberg was an "old man" and a "Grandpa." Pl.'s Resp. Brief at 11. To be probative of discrimination, isolated comments must be contemporaneous with the discharge or casually related to the discharge making process. Geier, 99 F.3d at 242. In this case, Sonnenberg provides no evidence to suggest that Kron was one of his supervisors. Nor has he shown that the manager was even remotely involved in Taco Bell's decision to terminate his employment. To the contrary, the facts presented show that Kron was nothing more than the manager of another store or, stated differently, one of Sonnenberg's peers. Without more, this evidence is insufficient to create a genuine issue of fact for trial.
To prove discriminatory intent under the indirect method of proof, Sonnenberg contends that Taco Bell's explanation for his termination was pretextual. In presenting his case with indirect evidence of discrimination, Sonnenberg must first set forth, by a preponderance of the evidence, a prima facie case of age discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Pitasi, 184 F.3d at 716. Once Sonnenberg makes a showing sufficient to prove a prima facie case he will enjoy a rebuttable presumption of discrimination that shifts the burden of production to Taco Bell to articulate a "legitimate, nondiscriminatory reason" for denying him promotion. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994). Taco Bell may do so by producing evidence, whether or not persuasive, of a nondiscriminatory reason. Hicks, 113 S.Ct. at 2747 (noting that the plaintiff retains the ultimate burden of persuasion on the issue of intentional discrimination). If Taco Bell succeeds in this task, the presumption dissolves and the burden of production shifts back to Sonnenberg to demonstrate that the proffered reason for his termination is a pretext for discrimination. Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1309 (7th Cir. 1997).
The McDonnell-Douglas presumption is only a "procedural device" intended to establish an order of proof and production, not a means of deciding the merits. Hicks, 113 S.Ct. at 2755.
To establish a prima facie case of age discrimination, Sonnenberg must present facts which tend to show that: (1) he is a member of a protected group (age 40 or over), (2) he was doing the job well enough to meet Taco Bell's legitimate expectations, (3) he suffered an adverse employment action, and (4) that substantially younger, similarly-situated employees were treated more favorably. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994). If Sonnenberg cannot establish any one these elements, summary judgment for Taco Bell is proper. Lloyd v. Bridgeport Brass Corp., 811 F. Supp. 401, 405 (S.D. Ind. 1993).
Here, Sonnenberg names several individuals who he contends were substantially younger and similarly-situated but were not terminated by Taco Bell. First, he points to Kron who was under the age of forty and promoted an employee to a shift manager position after the employee's criminal check came back "ineligible for hire" but was not terminated. Second, he states that Dennis Gray, another male under the age of forty, violated Taco Bell's policy checking the criminal background of a managerial employee and was only counseled by the company. Third, he asserts that Thomas Gahn, a male manager under the age of forty, was not terminated when he allowed a supervisee to hold a management-level position despite a criminal record.
This evidence is insufficient to establish a prima facie case of discrimination because Sonnenberg has not shown how he was similarly-situated to the individuals described above. Specifically, Sonnenberg has failed to establish that any of these individuals had committed the same violations of company policy in the course of their duties as a general manager. Indeed, Sonnenberg testified in his own deposition that he is not aware of any restaurant general managers who rehired employees with knowledge of their criminal backgrounds. Nor is he aware of any restaurant general managers who gave their restaurant keys to employees with known criminal records. In effect, he concedes that he cannot show any employee, regardless of age, who was accused of the same offense while holding the same position and yet was disciplined in a different way. Because Sonnenberg cannot establish a prima facie case of age discrimination, summary judgment is appropriate.
B. SEX DISCRIMINATION
Sonnenberg asserts that he was fired by Taco Bell because of his sex. To avoid summary judgment, he presents statistics regarding the composition of Taco Bell's workforce during the past two years. That evidence revealed that in 1997, approximately 34 individuals served in the capacity of a restaurant general manager. Of these 34, sixteen were male and eighteen were female. In 1998, out of thirty restaurant general managers, fourteen were male and sixteen were female.
Sonnenberg also states that a female signed a bank deposit and sent the deposit with a shift manager in violation of company policy but was not terminated. Again, as discussed previously, this evidence is unavailing because this individual did not commit the same, or even similar, violations of Taco Bell's policy as Sonnenberg.
The Seventh Circuit has held that statistics are improper vehicles to prove discrimination in disparate treatment (as opposed to disparate impact) cases. See Plair v. E.J. Brach Sons, Inc., 105 F.3d 343 (7th Cir. 1997). In fact, the Court stated in Plair that standing virtually alone, statistics cannot establish a case of individual disparate treatment. Id. at 349. But, even if the Court in this case were to consider Sonnenberg's statistics, this evidence fails to demonstrate that he was terminated because of his sex in violation of Title VII. To the contrary, the statistics proffered reveal that during the past two years Taco Bell has maintained nearly an equal ratio of male to female managers in its stores. Sonnenberg has failed to present evidence from which a reasonable factfinder could conclude that he was discharged because he was male. Thus, summary judgment is appropriate.
IV. CONCLUSION
Sonnenberg has failed to present sufficient evidence from which the Court could find a genuine issue of material fact for trial in this matter. Therefore, the motion for summary judgment filed by Taco Bell is GRANTED.