Opinion
No. 97 C 3291.
February 23, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff John F. Williams ("Williams"), an African American male, brought this employment discrimination action against his current employer, M.R.C. Polymers ("M.R.C."), after being demoted during a departmental reorganization. Williams alleges that Defendant M.R.C. unlawfully discriminated against him based on his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Williams also claims that Defendant violated the Equal Pay Act, 29 U.S.C. § 206, by demoting him. Further, Williams alleges that Defendant violated the Federal Consumer Credit Protection Act ("FCCPA"), 15 U.S.C. § 1673, and committed theft, by garnishing his wages in excess of the statutory limit, and by not remitting the garnished wages to the appropriate state authority. Defendant now moves for summary judgment on all counts pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the motion is granted in part and denied in part.
FACTUAL BACKGROUND
A. Facts Relating to Discrimination Claims
The court takes the following facts from the parties' Local Rule 12(M) and 12(N) statements of material fact and supporting materials. Plaintiff Williams is an African-American male who has been employed by Defendant M.R.C. since May 1994. (Def.'s 12(M) ¶ 7; Pl.'s 12(N) ¶ 1.) Defendant M.R.C. is a corporation in the business of recycled plastics. (Def.'s 12(M) ¶ 1.) In September 1996, M.R.C. reorganized its Production Department, where Plaintiff had been serving as Supervisor, to "find the best person for the best job and therefore increase staff efficiency." (Def.'s 12(M) ¶¶ 5-6.) As part of that reorganization, Williams was demoted from Supervisor to Lead Operator. (Def.'s 12(M) ¶ 6.) Although both parties refer to the personnel action as a demotion, the action did not result in a reduction of benefits or pay. (Def.'s 12(M) ¶ 12.)
The parties filed statements of material fact in accordance with the Northern District of Illinois' Local Rules. The court's local rules have been amended, effective September 1, 1999, replacing Local Rule 12(M) and 12(N) with Local Rule 56.1. Because the parties' statements were filed before the amendment to the Local Rules, the court will use the old nomenclature for the sake of clarity. The court also notes that both parties failed to include specific references "to the affidavits, parts of the record, and other supporting materials relied on to support the facts," as required by the Local Rules. Because neither party objected to the form of the statements, however, the court proceeds to consider the motion on the materials submitted. The court further notes that because the record here is not always clear, the court attempts to interpret the facts fairly so as to avoid reconsideration of this motion for the sake of judicial economy.
Plaintiff disagrees with M.R.C.'s assertion that the entire corporation underwent a reorganization in 1996. (Def.'s 12(M) ¶ 4.) Instead, Plaintiff claims that Defendant only reorganized the Production Department where he worked. (Pl's Statement ¶ 4). The court notes that this dispute of fact is not material, and therefore does not present a genuine issue.
The parties are inconsistent in their use of job titles for the various positions Williams has held throughout his tenure at M.R.C. According to Defendant, Williams served as a "Production Supervisor" from April 1995 until September 1996. (Def.'s 12(M) ¶ 3.) Defendant also stated that it demoted Williams from the position of "Shift Supervisor" as part of the September 1996 reorganization. (Def.'s 12(M) ¶ 6.) Thus, it appears that Defendant uses the titles "Production Supervisor" and "Shift Supervisor" interchangeably. To the contrary, Williams claims that he was a "Mixing Supervisor" from October 1994 until April 1995, an "Extruder Operator" from April 1995 until December 1995, and "Shift Supervisor" from January 1996 until September 1996. (Pl.'s 12(N) ¶ 3.) The court concludes that the parties are simply using different terminology for the various types of work that Williams performed. Based on the personnel action form submitted by Plaintiff, the court will use the terms "Supervisor" and "Lead Operator" to refer to Plaintiff's positions immediately before and after the alleged demotion.
As part of the same reorganization, Defendant promoted Jose Sichory, a Hispanic male who had been working as a Lead Operator — Williams' new position — to Williams' former position as Supervisor. (Def.'s 12(M) ¶¶ 6-7.) Sichory's advancement was the only formal promotion in the reorganization, and resulted in an immediate pay raise of $.50 per hour. (Def.'s 12(M) ¶ 7; Pl.'s 12(N), Payroll/Status Change Notice of Jose Sichory dated September 8, 1996.) In addition to Williams, Defendant reassigned four other employees to lower positions, three of whom were permanently reassigned: Frederick Snowell, a white male and the President of M.R.C, temporarily took on the duties of Manufacturing Manager; the former Manufacturing Manager, a white male, was reassigned to the lower position of General Foreman; the former General Foreman, an African-American male, was reassigned to the lower position of Lead Supervisor; and a Hispanic male was reassigned from Shift Operator to the lower position of Lead Operator. (Def.'s 12(M) ¶¶ 6-7.) None of the demotions involved a reduction in pay or benefits. (Def.'s 12(M) ¶ 12.) On September 8, 1996, Williams received a "Status Change Notice" informing him of his demotion. (Pl.'s 12(N), Payroll/Status Change Notice dated September 8, 1996.) Under the heading "Reasons for Change" on the notice, Defendant, by checking a box, referred to the personnel action as a "Demotion," even though the form provided "Transfer" or "Other" as other possible reasons for the action. ( Id.)
M.R.C. claims that because much of its work force is Spanish-speaking, Sichory's bilingual English/Spanish skills were considered in his promotion to a management position. (Def.'s 12(M) ¶ 8; Affidavit of Steven Sola ¶ 12.) Specifically, Defendant's manufacturing department consists of 34 people: 3 Caucasians, 21 Hispanics, and 10 African-Americans. (Sola Aff. ¶ 26.) Plaintiff admits that as Supervisor he oversaw the work of Hispanic employees who "spoke little or no English," but claims that he successfully communicated with the workers and never received any warning or disciplinary action from M.R.C. for not being able to competently supervise the Spanish-speaking staff. (Mot. Opposing Summ. J. at 12.) In response, M.R.C. argues that although the Supervisor position does not specifically require bilingual skills, because the formal job description requires the supervisor to "interpret company's policies to workers . . ." and "interpret specifications, formulations, and job orders to workers and assign duties," bilingual skills are considered an asset. (Reply Mem. in Supp. of Summ. J., at 7; Pl.'s 12(N), Production Supervisor Job Description, at 1.) Neither party identified how many individuals Williams supervised, how many were mono-lingual Spanish-speakers, nor the specific type of work he performed or supervised.
Steven Sola is the Chief Financial Officer of M.R.C. (Sola Aff. ¶ 1.)
M.R.C. also asserts that Sichory was promoted in part because he had received "some years" of training at a technical college. (Def.'s 12(M) ¶ 8; Sola Aff. ¶ 12.) Defendant failed to submit documentation verifying the duration or type of training Sichory received. Plaintiff asserts that he also had received nine months of technical training in welding at the Airco Technical Institute. (Pl.'s 12(N) ¶ 8, Application for Employment.) The position of Production Supervisor requires a Bachelor's Degree, or two to four years of related experience or training, or the equivalent combination of education and experience. (Reply Mem. in Supp. of Summ. J. at 7; Job Description, at 2.) Neither party described the specific type of technical training that Sichory or Williams received in relation to the job of Shift Supervisor.
In addition, M.R.C. stated that Williams received critical employment evaluations on two occasions, once in 1995 and once in 1996. (Def.'s 12(M) ¶¶ 13-14; Sola Aff. ¶¶ 22-23.) Williams disputes this contention, claiming instead that he performed his job satisfactorily as evidenced by a rating of "exceptional" in 1995 and "satisfactory" in 1996. (Pl.'s 12(N) ¶¶ 5, 13, Williams' Overall Performance Ratings of April 3, 1995 and April 8, 1996.) Although Williams concedes that both evaluations contained comments suggesting areas for improvement, he argues that his overall ratings on both evaluations demonstrate that he at least performed his job satisfactorily in spite of the noted need for improvement. (Pl.'s 12(N) ¶ 14.) Indeed, Williams was promoted to the position of Supervisor in January 1996, and one month later received a $.35 per hour pay raise with a note commenting that he was "doing well" in the new position. (Pl.'s 12(N), Payroll/Status Change Notice dated Feb. 25, 1996.)
Williams is currently employed as a Technician in the Tech Group at M.R.C. (Def.'s 12(M) ¶ 11.) He has received four pay raises since the demotion and currently earns $10.45 per hour, $1.70 more than the $8.75 per hour he earned as Shift Supervisor. (Def.'s 12(M) ¶¶ 10-11.) Williams nevertheless claims, without providing any details, that he had a difficult time advancing within M.R.C. after his demotion. (Pl.'s 12(N) ¶ 11.)
Williams initially filed a charge the Equal Employment Opportunity Commission ("EEOC") on October 31, 1996 in which he claimed that M.R.C. violated Title VII of the Civil Rights Act of 1964 when it demoted him from his Supervisor position in September 1996. (Compl. ¶ 7.b.1.) The EEOC dismissed the claim and issued a notice of right to sue which Plaintiff received on February 6, 1997. (Compl. ¶ 8.b.) Williams then filed this complaint on May 2, 1997.
B. Facts Relating to FCCPA and Conversion Claims
In addition to his race discrimination claim, Plaintiff's pro se complaint claims that M.R.C. violated the Consumer Credit Protection Act, 15 U.S.C. § 1671 et seq., and committed "theft." These claims relate to wages garnished from Williams' paychecks pursuant to court orders for past due and current child support. Sometime in April 1996, Defendant was served with an Order of Withholding from the Circuit Court of Cook County for child support. (Def.'s 12(M) ¶ 15; Pl.'s 12(N) ¶ 15). The Order, dated March 29, 1996, directed Defendant to withhold from Williams' paychecks $95.00 a month for current support and $18.00 for delinquent support. (Pl.'s 12(N) ¶ 15, Order For Withholding.) Subsequently, in July 1996, Defendant received notice of a levy from the Illinois Department of Revenue indicating that Williams was delinquent in child support payments in the amount of $4,473. (Def.'s 12(M) ¶ 16; Pl's 12(N) ¶ 16.) The notice demanded that Defendant garnish Williams' wages to satisfy the debt. ( Id.) Williams contends that although M.R.C. complied with the order and levy by making payments to the Illinois Department of Public Aid, it failed to withhold the corresponding amounts from Plaintiff's paychecks until sometime in October 1996. (Pl.'s 12(N) ¶ 15.) Records introduced by Plaintiff, however, indicate that M.R.C. began making payments to the appropriate state agency pursuant to the order and levy in April 1996, but did not begin to garnish Williams' paychecks until July 4, 1996. (Pl.'s 12(N), Garnishments and Payments for John Williams.)
The FCCPA sets limits on the amount an employer may garnish from an employee's wages, and the parties agree that under the relevant portions of the Act, M.R.C. could garnish no more than 55% of Williams's wages. (Def.'s 12(M) ¶ 17; Pl.'s 12(N) ¶ 17.) Defendant alleges that it deducted a flat amount of $55.20 per week from Plaintiff's wages, reflecting 15% of his gross weekly earnings. (Memo. in Support of Mot. for Summ. J., at 8.) It appears that Defendant began garnishing Plaintiff's wages in July 1996, but the amounts deducted appear to fluctuate. (Pl.'s 12(N), Garnishments and Payments for John Williams.) Payroll records introduced by both parties are nearly unintelligible and do not necessarily support the assertion that a flat 15% of Williams' wages were regularly withheld. Neither parties submitted copies of paycheck stubs during the relevant time period to show the actual amounts deducted each week.
The Act states that where an individual is supporting a spouse or dependent child, apart from the spouse or child included named in the court order,
[t]he maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to enforce any order for the support of any person shall not exceed . . . 50 per centum of such individual's earnings for that week . . . except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum . . . shall be deemed to be 55 per centum . . . if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.15 U.S.C. § 1673(b)(2).
M.R.C. concedes that for the week ending September 7, 1996, it garnished 59% of Williams' wages, exceeding the 55% cap set in the FCCPA. (Def.'s 12(M) ¶ 18.) On four other occasions, Defendant also admits that it deducted from Williams' paychecks amounts exceeding 55% of his wages, but claims that the excess deduction resulted from a voluntary wage assignment that Plaintiff had approved for the reimbursement of advanced funds. (Def.'s 12(M) ¶ 21; Aff. of Sandra Turner ¶ 11). Although it is not clear from the record, the advance to which Defendant refers is presumably the money it paid to the Illinois Department of Public Aid on Plaintiff's child support account before it began garnishing Plaintiff's wages in July 1996. Plaintiff denies that he ever entered into voluntary wage assignment with Defendant, and Defendant has produced no evidence of such an agreement. (Pl.'s 12(N) ¶ 21.) Nevertheless, Plaintiff does appear to admit that he owes Defendant money: "Plaintiff has never given Defendant authorization to deduct any money, except to repay loans." ( Id.)
Sandra Turner is Controller for Defendant. (Turner Aff. ¶ 1.)
It is not clear from the record the amount by which M.R.C. may have over-garnished the wages. It is also not clear how either party calculates 55% of Williams' wages; he apparently is paid hourly and does not have a standard weekly pay rate. M.R.C. admits that on the one occasion it withheld 59% of Plaintiff's wages, the amount it over-garnished totaled $1.00. (Def.'s 12(M) ¶ 22; Turner Aff. ¶ 12.) M.R.C. expressed its willingness to use that sum to set off the amount Plaintiff allegedly owes Defendant for advance payments made on his behalf. ( Id.) Plaintiff alleges that the wages were over-garnished by a greater amount, but fails to provide the court with a figure. (Pl.'s 12(N) ¶ 22.)
Plaintiff also alleges that M.R.C. committed "theft" by deducting wages that were not paid out for child support. (Mot. Opposing Summ. J. ¶ 2.) Defendant claims that all money ultimately was paid to the proper creditors. (Def.'s 12(M) ¶ 23.) M.R.C. submitted a letter from the State of Illinois Child Support Program showing that all arrearage had been paid on Williams' account. (Pl.'s 12(N), Letter to Mr. Williams from State of Child Support Program dated Aug. 12, 1998.) This letter is inconclusive on the issue of whether M.R.C. remitted all the amounts it garnished to the state agency, however, as the letter does not state the source of the payments — e.g., whether Williams or M.R.C. made the payments. Moreover, Plaintiff submitted a letter from the same state agency showing that no wage levies were made on Plaintiff's account for the months of February 1997 through October 1997. (Pl.'s 12(N), Letter to Williams from Illinois Department of Public Aid — Division of Child Support Enforcement dated April 22, 1998.) Although the agency's records indicate payments were made to Williams' account during those months, whether Williams himself made the payments or whether they were made by M.R.C. is not determinable from this document. ( Id.)
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories and admissions of 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. R. CIV. P. 56(c); see also Flores v. Preferred Tech. Group, 182 F.3d 512, 514 (7th Cir. 1999). In determining the existence of material facts, the court must examine the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Flores, 182 F.3d at 514. An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Carter v. American Oil Co., 139 F.3d 1158, 1161 (7th Cir. 1998).
The Seventh Circuit has recognized that courts must apply the summary judgment standard with rigor in employment discrimination cases because "motive, intent and credibility are crucial issues." Crim v. Board of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Nonetheless, noting that employment discrimination cases are not governed by a separate rule of civil procedure, the Seventh Circuit recognizes that summary judgment may be appropriate so long as there is no genuine dispute as to the material facts. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). The point is simply that "courts should be careful in a discrimination case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of an intent often though not always will be." Id. at 1396.
B. Title VII and 42 U.S.C. § 1981 Claims
1. Legal Standard
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race[.]" 42 U.S.C. § 2002e-2. Section 1981 prohibits discrimination on the grounds of race in the making and enforcing of contracts. See 42 U.S.C. § 1981(a).
The same standards governing liability under Title VII apply to Section 1981 claims. See Vakharia v. Swedish Convenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999). Under Title VII and Section 1981, a plaintiff can either offer direct proof of discriminatory intent or can use the indirect, burden-shifting paradigm articulated in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802 (1973). See Oates v. Discovery Zone, 116 F.3d 1161, 1169 (7th Cir. 1997).
In this case, Plaintiff did not offer direct evidence of discrimination, and therefore the court employs the McDonnell Douglas approach. Under McDonnell Douglas, a plaintiff must establish a prima facie case by a preponderance of the evidence. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The plaintiff's evidence of the prima facie case "need not be overwhelming or even destined to prevail; rather, the plaintiff need present only `some evidence from which one can infer that the employer took adverse action against the plaintiff on the basis of a statutorily proscribed criterion.'" Bellaver v. Quanex Corp., 200 F.3d 485, 493 (7th Cir. 2000) (quoting Leffel v. Valley Fin. Servs., 113 F.3d 787, 793 (7th Cir. 1997), cert. denied, 522 U.S. 968 (1997)).
If the plaintiff succeeds in proving the prima facie case, "the burden shifts to the defendant `to articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" Burdine, 450 U.S. at 253 (quoting McDonnell Douglas, 411 U.S. at 802). Once Defendant meets this requirement, Plaintiff must demonstrate, again by a preponderance of the evidence, that the reason offered by Defendant is actually a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802; Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999). Despite the shifting burdens of production, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
2. Williams' Prima Facie Case
Under the burden-shifting paradigm, Plaintiff can establish a prima facie case of racial discrimination by showing (1) he is a member of a protected class; (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) M.R.C. treated similarly-situated employees outside his classification more favorably. See Oates, 116 F.3d at 1171. It is not disputed that Williams, as an African-American, is a member of a protected class and therefore meets the first prong of his prima facie case.
Construing the facts in the light most favorable to Williams, the court also concludes that he has met the second prong of his prima facie case. Although Defendant claims Williams received two poor work evaluations prior to his demotion, Williams submitted evidence more substantial than just "general averments of adequate performance" to show that he performed his job satisfactorily. See Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 378 (7th Cir. 1995). It is true, as Defendant claims, that the two evaluations to which Defendant refers suggested areas for improvement and specific recommendations for Williams. One evaluation, however, rated Williams' overall performance as "exceptional" while the other rated his performance as "satisfactory." Moreover, the suggested areas of improvement and recommendations for Williams gave no indication of reasons for demoting Williams from his position as Supervisor. Indeed, M.R.C. never asserts that it demoted Williams as a direct result of any of Williams' alleged failings. Instead, the Defendant stated that its decision to replace Williams with Sichory was part of a larger reorganization to find the best person for the best job.
Third, Williams suffered an adverse employment action by being demoted and losing his title of Shift Supervisor, even though his salary and benefits remained the same. Defendant correctly argues that the loss of supervisory duties is not enough to establish a prima facie case. See Crady v. Liberty Nat'l Bank and Trust, 993 F.2d 132, 136 (7th Cir. 1993). Crady holds that "a materially adverse change in terms and conditions of employment must be more disruptive than a mere inconvenience or alteration of job responsibilities." 993 F.2d at 136. In arriving at this conclusion, however, the Seventh Circuit in Crady explained that a "materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." 993 F.2d at 136 (emphasis added). Here, Plaintiff received a less distinguished title when he was demoted from Supervisor to Lead Operator. In addition, both M.R.C. and Williams refer to the change as a demotion rather than a transfer; indeed, in notifying Williams of the personnel action, M.R.C. checked off the box for "Demotion," instead of the boxes titled "Transfer" or "Other." The court holds that based on this evidence, and given the circumstances of this situation, Williams has at least raised an inference that he suffered an adverse employment action.
Neither party submitted descriptions of the difference in Williams' responsibilities after the demotion.
Finally, Williams rounds out his prima facie case by showing that a similarly situated person outside his protected class was treated more favorably than he was treated. During the September 1996 reorganization, M.R.C. reassigned six people. One of them, Jose Sichory, a Hispanic, received a promotion and replaced Williams as Supervisor, while Williams was demoted to Sichory's former position of Lead Operator. Defendant argues unpersuasively that Plaintiff can not meet his burden in this regard because Sichory is Hispanic, and thus himself a member of a protected class. The relevant inquiry, however, is whether a similarly-situated non-African-American was treated preferably to Williams. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1035 (7th Cir. 1999). Since Sichory is not African-American, and was treated preferably in his replacement of Williams, the question becomes whether Sichory was similarly situated to Williams.
At the time of the reorganization, Sichory served as Lead Operator, while Williams served as Shift Supervisor. M.R.C. asserts that Sichory was more qualified for the position of supervisor because of his bilingual skills and his technical training. Pointing to the job description, Williams argues that bilingual skills are not a requirement for the position of Supervisor. Instead, the position requires a certain amount of education, or experience, or a combination of the both. Although Williams has not conclusively established that he and Sichory were similarly situated, the fact that both employees had some technical training and experience at least raises a dispute as to material fact.
3. M.R.C.'s Nondiscriminatory Reason
Plaintiff's success in showing a prima facie case establishes a presumption of discrimination. See Jackson, 176 F.3d at 983. The burden then shifts to the employer to articulate "some legitimate, nondiscriminatory reason for its conduct." See Bellaver, 200 F.3d at 492, McDonnell Douglas, 411 U.S. at 802. M.R.C. offers a number of legitimate, non-discriminatory reasons for demoting Williams. As part of the reorganization, M.R.C. demoted five employees, including Williams, and promoted one, Sichory. M.R.C. states that it promoted Sichory because his bilingual skills would enable him to better communicate with a largely monolingual Spanish-speaking staff. In addition, M.R.C. asserts that Sichory has more technical training than Williams and is therefore also more qualified for the position. These reasons are sufficient for M.R.C. to meets its "quite light" burden; "mere articulation of the reason rebuts the prima facie case and puts the onus back on the plaintiff to prove pretext." See Pilditch v. Board Of Educ. Of City of Chicago, 3 F.3d 1113, 1117 (7th Cir. 1993).
4. Pretext
Because M.R.C. has articulated a legitimate nondiscriminatory reason for the demotion, the burden rests again on Williams who must show by a preponderance of the evidence that M.R.C.'s stated reason is a pretext for discrimination. See Jackson, 176 F.3d at 983. Pretext in this context means "a lie, specifically a phony reason for some action." See id. (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995)). In making the pretext determination, the court does not act as a "super-personnel department that reexamines an entity's business decisions." Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986), cert. denied, 479 U.S. 1066 (1987). Nor does the issue of pretext address the correctness or desirability of the reasons offered for the adverse employment decision. See Kariotis v. Navistar Int'l Trans. Corp., 131 F.3d 672, 677 (7th Cir. 1997). To survive summary judgment at this stage, Williams must present evidence supporting at least an inference that, regardless of the reasons stated by M.R.C., he would not have been demoted "but for" discriminatory reasons. See Jackson, 176 F.3d at 921.
Williams fails to produce sufficient evidence of pretext here. Indeed, Plaintiff fails to explicitly argue pretext at all; to the extent it is able, the court will infer the argument from Plaintiff's brief. With respect to M.R.C.'s contention that it promoted Sichory, in part, based on his bilingual abilities, Williams counters that despite not speaking Spanish, he successfully communicated and supervised the Spanish-speaking staff on his shift. To support this assertion, Williams points to the lack of warnings from M.R.C. that he need to learn Spanish. Williams also claims that he is at least as qualified for the position because he has also had technical training. These conclusory remarks are insufficient to create an issue of fact here. See Jackson, 176 F.3d at 984-84. Williams has failed to present sufficient evidence to support a reasonable inference that M.R.C. did not honestly believe that Sichory was better qualified than Williams for the position of Supervisor. Williams has not pointed to any evidence tending to show that the reasons for the reorganization and his demotion were lies or otherwise pretextual; the court will not second-guess M.R.C.'s business judgment in the face of deficient evidence.
5. Disparate Impact
Despite not having raised the issue in his EEOC complaint, Plaintiff here also argues that M.R.C.'s education requirement disparately impacts African-Americans. (Memo. Opp. Def.'s Mot. For Summ. J., at 3.) Even assuming that Plaintiff could raise this claim at this late stage, he still fails to meet the burden for sustaining such a claim. In a Title VII disparate impact case, Plaintiff bears the initial burden of showing that the employment practice being challenged had a disparate impact on members of a protected class. See Council 31, Amer. Fed. Of State, County Municipal Employees, AFL-CIO v. Doherty, 169 F.3d 1068, 1074 (7th Cir. 1999). The challenged policy here is facially neutral: M.R.C. requires a Bachelor's Degree, or two to four years of related experience or training, or the equivalent combination of education and experience. As a result, time on the job could make up for a lack of a degree, and thus the requirement, in and of itself, need not adversely impact any particular group of people. Moreover, Plaintiff has failed to provide any statistical evidence that the educational requirement has had a disproportionately adverse impact on African-Americans, as compared with Hispanics.
Compare Watkins v. City of Chicago, 992 F. Supp. 971 (N.D.Ill. 1998) with Leisen v. City of Shelbyville, 968 F. Supp. 409, 422 (S.D.Ind. 1997).
C. Equal Pay Act
The Equal Pay Act, 29 U.S.C. § 206, prohibits an employer from differentiating in employees' wages on the basis of sex. Because no woman was involved in the reorganization, Plaintiff has no cause of action under this Act.
D. FCCPA Claim
Plaintiff claims that his employer violated the FCCPA which sets a cap on the percent of wages an employer may garnish from its employee's wages in any given workweek. See 15 U.S.C. § 1673. The FCCPA states that where, as here, the employee's earnings are "subject to garnishment to enforce a [delinquent] support order," the maximum percent that can be withheld is 55% of disposable earnings for the week. See 15 U.S.C. § 1673(b)(2).
M.R.C. argues that under Section 1673 of the FCCPA, an individual does not have a private right of action for an employer's violation of the cap on garnished wages. Defendant, however, cites to no authority for this proposition, and Plaintiff does not respond to this argument. The court's initial research suggests that the statute is enforced by the Secretary of Labor, leaving a private individual without a private right of action. See 15 U.S.C. § 1676; see also LeVick v. Skaggs Cos., 701 F.2d 777 (9th Cir. 1983); Western v. Hodgson, 359 F. Supp. 194, 200-01 (S.D.W.Va. 1973), aff'd on other grounds, 494 F.2d 379 (4th Cir. 1974). Nevertheless, in light of Defendant's failure to provide legal authority, the court is reluctant to dismiss Plaintiff's complaint on this ground. As noted above, the facts surrounding this claim are murky. In light of the fact that Defendant concedes that, on at least five occasions, it exceeded the 55% cap on the wages garnished from Williams' paychecks, the court is hard pressed to award summary judgment in its favor on this claim. The court further notes that M.R.C. has failed to provide any evidence of a voluntary wage assignment on the part of Williams to justify the excessive withholding of wages on four of the five conceded occasions.
Some courts have found an implied private right of action under the subchapter of the FCCPA dealing with restriction on garnishments where an employer has unlawfully discharged an employee because his earnings have been subjected to garnishment for only one indebtedness. See Ellis v. Glover Gardner Constr. Co., 562 F. Supp. 1054 (M.D.Tenn. 1983); Maple v. Citizens Nat'l Bank Trust Co., 437 F. Supp. 66 (W.D.Okla. 1977); but see LeVick v. Skaggs Cos., 701 F.2d 777 (9th Cir. 1983); McCabe v. City of Eureka, Mo., 500 F. Supp. 59 (E.D.Mo. 1980).
E. Theft
Finally, Williams claims that some of the amounts garnished from his wages were not forwarded to the proper state agency, and therefore M.R.C. has committed "theft." Theft is a criminal action, not a civil action, actionable only by an attorney acting on behalf of the people of the State of Illinois. Under the liberal notice pleading requirements of the federal rules, however, the court will not dismiss an action simply because Plaintiff failed to properly label his claim. See Veazey v. Communications Cable of Chicago, Inc., 194 F.3d 850, 854 (7th Cir. 1999). Instead, the court understands Plaintiff's claim as one for conversion of property.
Defendant claims to have properly forwarded all monies deducted from Plaintiff's paychecks to the proper creditors. In support of this contention, Defendant offers a letter from the state agency indicated that all delinquent support had been paid. This letter does not indicate from which sources the debt was satisfied, however, and Plaintiff has submitted evidence that for several months at a time in 1997, M.R.C. did not submit any wage levies to the state agency. Therefore, Plaintiff has raised at least an inference that M.R.C. withheld money from Plaintiff for its own benefit.
CONCLUSION
Defendant's motion for summary judgment (Doc. No. 21-1) is granted in part and denied in part. The motion is granted with respect to the Title VII, Section 1981, and Equal Pay Act claims. The court denies Defendant's motion for summary judgment on the FCCPA and conversion claims. Plaintiff's motion in opposition (Doc. No. 28-1) is denied. The parties are requested to appear for status conference on Tuesday, March 14, 2000 at 9:00 a.m.