Opinion
Cause No. IP97-1279-C-T/G
July 19, 2000
I. Background Facts
Where the parties dispute a fact, the dispute is either noted, or the fact is presented according to the evidence submitted by the Plaintiff. See Summary Judgment Standard, infra. Some facts are derived from unsworn declarations submitted by the Plaintiff. Any facts derived from those declarations assume technical defects in their presentation were cured and would not be stricken in response to substantive objections made by the Defendant. See discussion infra.
Autoliv manufactures automobile safety products, including seatbelts and air bags. (Anderson Aff. ¶ 3.) Autoliv's Indianapolis seatbelt manufacturing facility employs approximately 250 employees, at least eighty percent of whom are African-American. ( Id. at ¶ 5.) Ms. Patterson is an African-American female who began working at Autoliv as an assembly associate in October 1993, (Patterson Dep. at 14, 16), and was terminated by Autoliv in August 1999, (Patterson Decl. at ¶ 1). During her tenure at Autoliv, Ms. Patterson was promoted twice, once to the position of quality assurance auditor and later to team/production supervisor on the second shift. (Patterson Dep. at 18, 20.) In 1997, she received a positive performance evaluation in January, (Dwyer Decl. ¶ 9), one write-up in May and one write-up in July, (Patterson Decl. 3; Pl.'s Apps. 4, 5).
While the parties dispute the reason for Ms. Patterson's termination, it is not disputed that the termination occurred more than two years after the filing of her lawsuit and more than a year after her deposition was taken in this case. Ms. Patterson also has not moved for leave to file a supplemental complaint based on this August 1999 termination.
Joseph Dwyer, Ms. Patterson's former supervisor and former production superintendent at Autoliv, (Dwyer Decl. ¶ 2), had heard Peter Ludlum make racial slurs and was told by Mr. Ludlum to "get rid of the Niggers on second shift." (Dwyer Decl. ¶ 1.) Mr. Dwyer also had been told by administrative personnel that he was to discipline African-American employees more harshly than white employees, (Dwyer Decl. ¶ 3), and he was told by James Ross that giving Ms. Patterson a positive performance evaluation would hamper Mr. Dwyer's ability to fire her. (Dwyer Decl. ¶ 9.) Mr. Ross also told Mr. Dwyer to charge second-shift African-American supervisors for tee-shirts and leather folders with the company logo, and Mr. Dwyer also was aware that Ross provided the shirts and folders to at least some white first-shift supervisors without charge. (Dwyer Decl. ¶ 8.) Mr. Dwyer was aware that Mr. Ross provided Christmas turkeys and catered food to at least some white first-shift supervisors, and that at least some African-American second-shift supervisors were not provided the turkeys and catered food. ( Id.)
Mr. Dwyer identifies Mr. Ludlum's position only as "administrative." (Dwyer Decl. ¶ 3.) The Plaintiff's Appendix 4 indicates that Mr. Ludlum had supervisory authority over Ms. Patterson.
Mr. Ross was the Plant Manager at Autoliv's Indianapolis facility from November 1994 to October 1997. (Anderson Aff. ¶ 6.)
Ms. Patterson, however, testified that she had not seen or witnessed Autoliv take any actions against other employees that she considered to be racial discrimination, (Patterson Dep. at 164-65), that she was not directly harassed because of her race, ( id. at 153), that she did not know of any benefits white employees received that African-American employees did not, ( id. at 150), and that she had not been given a bad performance evaluation or fired as of the time of her deposition, ( id. at 66-67). Ms. Patterson also never heard any Autoliv employee ever make a racially derogatory remark in her presence. ( Id. at 151.) Only Mr. Ludlum ever made a remark in her presence that was even racially related — i.e., he told Ms. Patterson at a dinner in 1994 or 1995 that he did not like African-Americans. ( Id. at 36-37.)
The actions by Autoliv that Ms. Patterson testified did affect her directly included a lack of access to company-sponsored training, lack of access to facilities reserved for supervisors, denial of transfer to the first shift, and frustration with not being paid for what she saw as doing more work than others. Regarding company-sponsored training, Ms. Patterson testified that, as a second-shift supervisor, she had been denied leave to participate in all but one seminar during a five-year period. ( Id. at 137-40.) However, she also testified that second shift supervisors did not attend such training because of problems in finding supervisory replacements. ( Id. at 137-38.)
Ms. Patterson also was denied transfer to the first shift twice, ( id. at 132; Dwyer Decl. ¶ 5, Patterson Decl. ¶ 7), and denied use of a lunchroom and restroom reserved for salaried employees. (Patterson Dep. at 126-28; Dwyer Decl. ¶ 7; Patterson Decl. ¶ 6.) She also was aware of one other African-American second-shift supervisor (Diane Williams) who had been denied transfer to the first shift and denied access to the salaried employee facilities. (Patterson Decl. ¶ 8; Dwyer Decl. ¶¶ 5, 7.) Ms. Patterson, however, did not specify who got the first-shift positions for which she (or Ms. Williams) applied, and indicated that at least the supervisory employee lunchroom was available to only a few supervisors (two white men and two African-American men). (Patterson Dep. at 126-28.)
Lastly, Ms. Patterson complained of frustration with having to do the work of both white and African-American co-workers, while other supervisors (both white and African-American) were not expected to do likewise. (Patterson Dep. at 152-53.) Ms. Patterson also complained of not being compensated for additional responsibilities, but testified that supervisory pay was based on experience. ( Id. at 179.)
II. Discussion
On November 2, 1999, Autoliv filed its Motion for Summary Judgment on Plaintiff Gwenevera Patterson's Claims. On February 22, 2000, Ms. Patterson filed her Non-Movant's Motion to Deny Summary Judgment and her Non-Movant's Response to Motion for Summary Judgment and Statement of Material Facts. Ms. Patterson's Response included an unsworn declaration by Joseph Dwyer ("Dwyer"), and an unsworn declaration by Ms. Patterson which referred to five attached exhibits. On April 21, 2000, the Defendant filed its Reply in Support of Autoliv's Motion for Summary Judgment on Plaintiff Gwenevera Patterson's Claims. In that Reply, Autoliv objected to the admissibility of both unsworn declarations and all of the exhibits on both technical and substantive grounds pursuant to Fed.R.Civ.P. 56(e). (Def.'s Reply Supp. Mot. Summ. J. at 2-3.) Autoliv argues that the declarations do not conform to 28 U.S.C. § 1746 and that the exhibits are unauthenticated; therefore, Autoliv contends that all evidentiary material submitted by Ms. Patterson in her summary judgment submissions should be stricken. The court will construe these objections and arguments as motions to strike. The court will first address Autoliv's technical and substantive motions to strike in turn. Then the court will address the Motion for Summary Judgment.
A. Defendant's Motion to Strike Plaintiff's Unsworn Statements and Attached Exhibits as Defective in Form
Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits opposing summary judgment "set forth such facts as would be admissible in evidence," and that copies of any papers or parts of papers referred to in an affidavit must be "sworn or certified." The requirement in Rule 56(e) that an affidavit be "sworn" requires more than just the use of the word "sworn"; the affidavit must be sworn before an officer authorized to administer an oath (such as a notary public). See Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985), cert. denied, 475 U.S. 1107 (1986); see also Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1169 (7th Cir. 1996) (referring to sworn statements as ones made under oath). An unsworn declaration may substitute for an affidavit only if it subjects the declarant to penalties of perjury. See 28 U.S.C. § 1746 ; DeBruyne v. Equitable Life Assur. Soc'y, 920 F.2d 457, 471 (7th Cir. 1990); Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987). Statements that are "neither notarized nor made under penalty of perjury [do] not comply with Rule 56(e). . . . As such, we and can simply ignore them." Gilty v. Village of Oak Park, 919 F.2d 1247, 1255 n. 13 (7th Cir. 1990). Accordingly, exhibits attached to such informal declarations which are not otherwise verified are not properly authenticated as required by Rule 56(e). See Friedel, 832 F.2d at 970. See, e.g., Rogers v. Ford Motor Co., 952 F. Supp. 606, 611 (N.D.Ind. 1997) (granting a motion to strike documents which had not been authenticated by affidavit or otherwise verified).
In response to Autoliv's Motion for Summary Judgment and Statement of Facts, Ms. Patterson offers only the declarations of herself and a former production superintendent at Autoliv, Joseph R. Dwyer. Mr. Dwyer's declaration is signed and dated, and opens with the words, "having been duly sworn." (Dwyer Decl. at 1.) Similarly, Ms. Patterson's declaration is signed, dated, and opens with the words, "being first duly sworn, deposes, and declares that. . . ." (Patterson Decl. at 1.) There is no indication that either declaration was sworn before an officer authorized to administer an oath (such as a notary public); therefore, neither declaration is "sworn" within the meaning of Rule 56(e). Additionally, neither declarant explicitly verifies "under penalty of perjury" that their statements are "true and correct" as required for unsworn declarations.
Because Ms. Patterson's and Mr. Dwyer's statements do not subject either declarant to the penalties of perjury, they do not carry with them the indices of reliability and veracity contemplated by Rule 56(e). The informal declarations of Mr. Dwyer and Ms. Patterson therefore are "not within the range of evidence that the district court [can] consider." DeBruyne, 920 F.2d at 471. Likewise, the five documents attached to, and referenced by, Ms. Patterson's declaration are not properly authenticated or otherwise verified. Thus, none of the Plaintiff's submissions in opposition to the motion for summary judgment comply with Rule 56(e) and cannot be considered by this court. Moreover, even if these defects in the form of Ms. Patterson's evidence were cured, the substance of the declarations and exhibits either fails to be admissible or fails to create a genuine issue of material fact as is discussed below.
B. Defendant's Motion to Strike Plaintiff's Declarations and Exhibits as Substantively Improper
Substantively, Rule 56(e) of the Federal Rules of Civil Procedure "requires that affidavits offered in opposition to summary judgment be made on personal knowledge, . . . set[ting] forth such facts as would be admissible in evidence, and . . . show[ing] affirmatively that the affiant is competent to testify to the matters stated therein." Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (quotation omitted). "`[P]ersonal knowledge' includes inferences-all knowledge is inferential-and therefore opinions. But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience." Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991) (citations omitted); see also Toro Co. v Krouse, Kern Co., 827 F.2d 155, 162-63 (7th Cir. 1987) ("[S]tatements based merely on information and belief do not satisfy the standards of Rule 56(e)."). Courts are to disregard "conclusory allegations" in affidavits, as opposed to "substantiating facts": "Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted." Drake, 134 F.3d at 887 (quotation omitted). See also Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990) ("The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir.), cert. denied, 120 S.Ct. 446 (1999) ("[S]tatements outside the affiant's personal knowledge or statements that are the result of speculation or conjecture or [are] merely conclusory do not meet this requirement."). Furthermore, "[b]ecause legal argumentation is an expression of legal opinion and is not a recitation of a `fact' to which an affiant is competent to testify, legal argument in an affidavit may be disregarded." Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir. 1985), cert. denied, 475 U.S. 1107 (1986).
Additionally, "[s]elf-serving affidavits without factual support in the record will not defeat a motion for summary judgment." See Small Business Admin. v. Torres, 142 F.3d 962, 968 (7th Cir. 1998) (quotation omitted). "Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless . . . a plausible explanation for the discrepancy [is provided in the affidavit]." Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995); see Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir. 1988) ("It is well established that a party cannot create a genuine issue of fact by submitting an affidavit containing conclusory allegations which contradict plain admissions in prior deposition or otherwise sworn testimony.") (quotation omitted); Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir. 1985) ("Parties cannot thwart the purpose of Rule 56 by creating issues of fact through affidavits that contradict their own depositions."). Such plausible explanations might include affiant confusion at the deposition or a lack of access to material facts and proper identification of newly-discovered evidence. See id. Contradictions, as opposed to clarifications or augmentation, may be disregarded. See id.
1. Dwyer's Declaration
Autoliv characterizes Mr. Dwyer's declaration as speculative and conclusory throughout, and specifically argues paragraphs three through five and ten through twelve as "blatant[ly]" lacking personal knowledge under Rule 56(e) and Federal Rule of Evidence 602. (Def.'s Reply Supp. Mot. Summ. J. at 4-6.) For the purposes of this discussion, the court will treat the Defendant's objections as a motion to strike all or part of thirteen separate paragraphs (including the first unnumbered paragraph) in Mr. Dwyer's declaration. Those portions of Mr. Dwyer's declaration which are not stricken will be discussed in Part II.B as to their sufficiency in opposing the Motion for Summary Judgment had the declaration been properly sworn or in compliance with 28 U.S.C. § 1746.
The first unnumbered paragraph consists of one sentence which is fifteen lines in length. The gist of the paragraph is to assert that Mr. Dwyer, a former Autoliv employee, believes that white managers and administrative personnel intentionally discriminate against African-American employees because of their race and against white employees who refuse to carry out discriminatory policies and practices. Mr. Dwyer indicates that his belief was formed as a result of his employment with Autoliv as a production superintendent from October 1, 1996 to February 3, 1997 and "specific incidents" described in the numbered paragraphs. With respect to this introductory sentence, only the information related to the position and term of Mr. Dwyer's employment could be construed as within his personal knowledge and competence for testimony. The remainder of the paragraph amounts to conclusory assertions and legal argumentation. Therefore, Autoliv's motion to strike the first unnumbered paragraph is DENIED IN PART as to Mr. Dwyer's statement of his position and term of employment with Autoliv, and GRANTED IN PART as to the remainder of the paragraph.
Paragraphs one and two allege, respectively, that Peter Ludlum, told Mr. Dwyer that he was hired to "get rid of those Niggers on the second shift," and that Mr. Ludlum referred to African-American employees as "Niggers" on a daily basis for the first month of Mr. Dwyer's employment at Autoliv. These statements relate to specific occurrences within Mr. Dwyer's personal knowledge. Autoliv's motion to strike these two paragraphs is DENIED.
Autoliv did not make a hearsay objection to any of Mr. Dwyer's statements.
Paragraph three essentially alleges that Autoliv disciplined African-American employees more harshly than white employees. The first sentence indicates at least one incident in which Mr. Dwyer was told by white administrative personnel to discipline African-American employees more harshly than white employees. Insofar as Mr. Dwyer would have knowledge of any such statements made to him, Autoliv's motion to strike paragraph three is DENIED IN PART. The second sentence that "[t]here absolutely was a double standard in the application of disciplinary action as between African-American employees and their white co-workers by the management of [Autoliv]" is too conclusory. The third sentence presents no supporting facts to demonstrate that Mr. Dwyer has personal knowledge giving rise to the competence to testify as to the "goal" of Autoliv management. The last sentence merely reiterates Mr. Dwyer's statement in paragraph one. Thus, Autoliv's motion to strike paragraph three is GRANTED IN PART as to sentences two through four.
Paragraph four alleges pay disparities between African-American and white employees. The first sentence says that Mr. Dwyer "personally witnessed" such a disparity between second-shift African-American supervisors and first-shift white supervisors; however, such precatory language alone is insufficient to establish an admissible fact. Mr. Dwyer's allegations in the first two sentences are not supported by any concrete facts regarding how he came to know of any disparity (i.e., he provided no specific details regarding names of employees receiving different pay rates for the same work, or other information indicating how he came to access that data). Cf. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 798 n. 5 (7th Cir. 1995) ("DeLuca asserts in his affidavit that Winer Industries terminated several salespeople for reasons other than low sales figures. Because he failed to explain his basis of personal knowledge of these events, however, we do not consider his descriptions of them.") (citing Fed.R.Civ.P. 56(e)). Moreover, the last sentence ("There could be no business justification for this kind of disparity in pay considering the seniority, education levels and manufacturing experience, or any other criteria for that matter other than race.") posits only a bare conclusion as to Mr. Dwyer's opinion of the intent behind any pay disparity. Thus, Autoliv's motion to strike paragraph four is GRANTED.
Paragraph five alleges disparity between African-American and white supervisors in the granting of shift transfers. Given that Mr. Dwyer would have personal knowledge of what transfer requests he put in for second-shift African-American supervisors, and that he provided the names of three specific supervisors (including Ms. Patterson) for whom transfers were not granted, Autoliv's motion to strike paragraph five is DENIED IN PART. Paragraph five also discusses how Mr. Dwyer believed Autoliv acted contrary to its "written policy." However, Autoliv's seniority and transfer policies are not in evidence and Mr. Dwyer did not provide any specific facts as to how the situations of the three supervisors demonstrated a violation of those policies. Thus, Autoliv's motion to strike the remainder of paragraph five is GRANTED IN PART.
Paragraph six alleges disparity between African-American and first-shift white supervisors in the provision of company-sponsored training. Mr. Dwyer would have personal knowledge of what training requests were denied that he put in for African-American supervisors; however, he provided no specific details as to which supervisors were denied training, what shift(s) those supervisors worked, or even the numbers of his requests and denials. Moreover, the last sentence says that training requests for African-American supervisors were "denied in most cases"-indicating that at least some African-American supervisors did receive training. Mr. Dwyer did not provide any specific facts demonstrating personal knowledge of exactly who was receiving training and why. His assertion that requests were denied solely on account of race is likewise unsupported. Thus, to the extent that Mr. Dwyer can be said to have known that requests for company-sponsored training on behalf of African-American supervisors were denied in "most" cases, while first-shift white supervisors "regularly" were provided with this training, Autoliv's motion to strike paragraph six is DENIED IN PART. Autoliv's motion to strike the remainder of paragraph six is GRANTED IN PART.
Paragraph six does not indicate clearly whether Mr. Dwyer was referring to African-American employees generally or only those on a particular shift. The first shift is referenced only in relation to white supervisors.
To the extent that paragraph seven can be construed to state that Mr. Dwyer had personal knowledge that James Ross denied three female African-American supervisors (including Ms. Patterson) access to restrooms and "other areas reserved for supervisors," Autoliv's motion to strike paragraph seven is DENIED IN PART. Autoliv's motion to strike paragraph seven is GRANTED IN PART regarding Mr. Dwyer's unsupported opinion that this lack of access was motivated by racial discrimination.
Mr. Ross was the Plant Manager at Autoliv's Indianapolis facility from November 1994 to October 1997. (Anderson Aff. ¶ 6.)
Paragraph eight indicates that Mr. Dwyer had been told by Mr. Ross to charge African-American second-shift supervisors for tee-shirts and leather folders with the company logo. Although vague as to how exactly Mr. Dwyer witnessed Mr. Ross' actions, Mr. Dwyer provides a somewhat detailed description that arguably implies personal knowledge that Mr. Ross provided at least some white first-shift supervisors, without charge, the shirts and folders, as well as provided at least some first-shift white supervisors with Christmas turkeys and catered food that was not similarly provided to second-shift African-American supervisors. To this extent, Autoliv's motion to strike paragraph eight is DENIED IN PART. However, Autoliv's motion to strike paragraph eight is GRANTED IN PART regarding Mr. Dwyer's unsupported conclusion that these differences were motivated by discrimination against African-American supervisors.
Paragraph nine recounts Mr. Dwyer's giving of four positive performance evaluations in January 1997, one of which was for Ms. Patterson. Mr. Dwyer asserts that Mr. Ross advised him that submitting positive performance evaluations would preclude Mr. Dwyer from being able to fire the four employees. The statements in this paragraph relate to specific occurrences within Mr. Dwyer's personal knowledge. Autoliv's motion to strike paragraph nine is DENIED.
Each sentence in paragraphs ten and eleven is qualified by the phrase, "I believe," and in neither paragraph is any specific fact cited that demonstrates personal knowledge of such alleged activities as fabrication of complaints regarding African-American second-shift supervisors and treatment of all African-American employees like "second-class citizens." Such speculation is not competent evidence under Rule 56(e). Autoliv's motion to strike paragraphs ten and eleven is GRANTED.
The first sentence of paragraph twelve asserts a legal conclusion as to the reason for Mr. Dwyer's resignation from Autoliv, ("I have been subjected to discriminatory treatment from Autolivt [sic] and forced to resign in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. . . ."). The remaining two sentences are qualified by the phrase, "I believe," and provide no specific facts demonstrating Mr. Dwyer's personal knowledge of an alleged relationship between Mr. Ross' tenure as Plant Manager and Mr. Dwyer's conclusory allegation that Autoliv discriminates against African-Americans. Such conclusory opinions and speculation are not competent evidence under Rule 56(e). Autoliv's motion to strike paragraph twelve is GRANTED.
2. Ms. Patterson's Declaration and Attached Exhibits
Autoliv also characterizes Ms. Patterson's declaration as speculative and conclusory in nature, and argues that her attached exhibits are not properly verified. (Def.'s Reply Supp. Mot. Summ. J. at 6-7.) Autoliv additionally objects on the grounds that at least some of the statements by Ms. Patterson in her declaration were contradicted by her prior deposition testimony. For the purposes of this discussion, the court will treat the Defendant's objections as a motion to strike all or part of the eight separate paragraphs in Ms. Patterson's declaration, and all or part of the five attached exhibits. As with Mr. Dwyer's declaration, those portions of Ms. Patterson's declaration and exhibits which are not stricken will be discussed in Part II.B as to their sufficiency in opposing the motion for summary judgment had those documents been drafted and submitted in conformity with Rule 56(e) and 28 U.S.C. § 1746.
Autoliv points specifically to paragraphs seven and eight (stating, respectively, Plaintiff's belief that she was subjected to a hostile working environment and that Diane Williams was another African-American second-shift supervisor who was denied transfer and access to supervisory employee facilities on account of racial discrimination) as inconsistent with Ms. Patterson's deposition testimony that she was not racially harassed, (Patterson Dep. at 153), or that she had not witnessed Autoliv take any discriminatory action against any other employee who worked for or with her. ( Id. at 164-65.) However, these inconsistencies cease to be an issue once conclusory material is stricken from the text. The court notes that the stricken material would have been disregarded in any event as Ms. Patterson provided no explanation whatsoever as to discrepancies between her deposition testimony and her declaration. See Russell, 51 F.3d at 67-68.
Paragraph one identifies only facts regarding the dates of Ms. Patterson's tenure with Autoliv and her race. Such facts are clearly within Ms. Patterson's personal knowledge and are uncontested. Autoliv's motion to strike paragraph one is DENIED.
Paragraph two asserts that Ms. Patterson performed her job satisfactorily and references the first of her five attached exhibits-a performance appraisal form completed by Mr. Dwyer in January 1997 that rated Ms. Patterson's overall performance as meeting or exceeding objectives. (Pl.'s App. 3.) Ms. Patterson's statement is self-serving and conclusory, and it is duplicative of paragraph nine of Mr. Dwyer's Declaration. Moreover, Autoliv does not contest that Ms. Patterson was performing her job satisfactorily so this information is irrelevant. Thus, Autoliv's motion to strike paragraph two and Plaintiff's Appendix 3 is GRANTED.
Ms. Patterson's Declaration references the Performance Appraisal as Appendix 4; however, this reference appears to be only a typographical error.
Paragraph three asserts that Ms. Patterson suffered adverse employment action in the form of "write-ups," copies of which are attached to the declaration. (Pl.'s App. 4, 5.) Ms. Patterson's assessment of these events as an "adverse employment action" amounts to a legal conclusion and therefore is inadmissible. But whether she received warnings about her work performance are particular occurrences that would be within her personal knowledge.
Additionally, the court does not find that receipt of such warnings is necessarily inconsistent with the Plaintiff's deposition testimony that she had not received a "bad performance evaluation." (Patterson Dep. at 66-67.) The latter reasonably can be construed as a periodic evaluation occurring as a matter of course, while the former reasonably can be construed as management responses to particular incidents. These write-ups occurred at apparently irregular intervals relative to the performance evaluation given by Mr. Dwyer in January 1997-the first occurring approximately four months after the evaluation (5/19/97), and the second occurring approximately six months after the evaluation (7/7/97). Moreover, attached copies of the write-ups discuss specific problems needing improvement and provide warnings about potential consequences for failure to improve. (Pl.'s App. 4 (specifying problems in shift start up, line audits, manning levels, housekeeping, and scrap control that required improvement to avoid "disciplinary action up to and including termination"); App. 5 (providing a "First Written Warning" as part of a formal notice of discipline for an improperly completed manufacturing order).)
Therefore, Autoliv's motion to strike paragraph three is DENIED IN PART as to Ms. Patterson's receipt of two "write-ups," and GRANTED IN PART as to the remainder of paragraph three. Assuming that Ms. Patterson could cure the technical defects in the verification of her attached documents, Autoliv's motion to strike Plaintiff's Appendices 4 and 5 is DENIED.
Paragraph four asserts that Ms. Patterson received discipline for a mistake that a white co-worker, Sue Jewel, did not. Ms. Patterson attaches a "First Last Piece Pre-Production Check Sheet" ("check sheet") in support of this assertion. (Pl.'s App. 6.) Even if the check sheet were otherwise admissible, neither it nor any statement in paragraph four supplies a sufficient foundation to establish that Ms. Patterson actually has personal knowledge of the matters asserted. The check sheet provides no meaningful information in and of itself-it shows only item names, manufacturing numbers, dates, a series of check marks, and virtually illegible signatures at the bottom. No "mistake" is readily apparent from the check sheet, let alone any indication that Ms. Jewell would have been responsible for that mistake. Additionally, the assessment of Ms. Jewel as a "similarly-situated" co-worker amounts to a legal conclusion; Ms. Patterson has offered no other specific information as to the exact nature of Ms. Jewel's position, experience, work performance, or disciplinary record as compared to her own. Ms. Patterson's burden is to supply admissible evidence demonstrating that Ms. Jewel is similarly-situated and was treated more favorably than her-not merely to make a conclusory assertion to that effect. Autoliv's motion to strike paragraph four and Plaintiff's Appendix 6 is GRANTED.
Paragraph five addresses Ms. Patterson's termination of employment at Autoliv. Insofar as the paragraph says that Ms. Patterson was terminated on August 31, 1999, a matter about which she clearly has personal knowledge, Autoliv's motion to strike is DENIED IN PART. However, Ms. Patterson's characterizations of the termination as an "adverse employment action" and "unjust termination" are legal conclusions. The attached "Indiana Workforce Development Determination of Eligibility" does note that Autoliv did not protest Ms. Patterson's claim for unemployment compensation and so, for the purposes of Ms. Patterson's claim for benefits, she "was not discharged for just cause." (Pl.'s App. 7.) However, the nature of the proceeding to determine eligibility for unemployment compensation is fundamentally different than a Title VII action, and the conclusions of that state agency are in no way binding on the district court. See McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 798 n. 11 (7th Cir. 1997) (noting also that Ind. Code § 22-4-17-12(h) prohibits admitting evidence of unemployment compensation awards for purposes other than those of the administrative agency). Therefore, Autoliv's motion to strike paragraph five is GRANTED IN PART and the motion to strike Plaintiff's Appendix 7 is GRANTED.
Insofar as paragraph six states that Ms. Patterson was a salaried employee at Autoliv who was denied use of the lunchroom and restroom designated for salaried personnel, Autoliv's motion to strike paragraph six is DENIED IN PART. Ms. Patterson's assertion that the lack of access was attributable to racial discrimination is an unsupported opinion, to which Autoliv's motion to strike paragraph six is GRANTED IN PART.
Insofar as paragraph seven reiterates the uncontested fact that Ms. Patterson was denied transfer to the first shift at Autoliv, Autoliv's motion to strike paragraph seven is DENIED IN PART. However, no specific facts are provided to demonstrate that Ms. Patterson has personal knowledge that newly hired white supervisors were placed on first shift. In the remainder of the paragraph, she proffers the legal conclusion that denial of transfer, lack of access to salaried employee facilities, and other unspecified "hostile treatment" created an "abusive working atmosphere." Thus, as to these portions of paragraph seven, Autoliv's motion to Strike is GRANTED IN PART.
Insofar as paragraph eight asserts that Ms. Patterson "witnessed" a co-worker, Diane Williams, being denied use of salaried employee facilities and denied a transfer to the first shift, Autoliv's motion to strike paragraph eight is DENIED IN PART. Ms. Patterson's characterizations of this lack of access as "racially discriminatory action" is a legal conclusion, to which Autoliv's motion to strike paragraph eight is GRANTED IN PART.
B. Motion for Summary Judgment
Autoliv moves for summary judgment, contending that it is entitled to judgment as a matter of law as to Ms. Patterson's claims of race discrimination and a racially hostile work environment. To demonstrate that the technical defects in Plaintiff's summary judgment submissions are not outcome determinative, the court will consider in this discussion those portions of Ms. Patterson's and Mr. Dwyer's declarations which would not have been stricken had they been properly sworn or drafted in accordance with 28 U.S.C. § 1746.
The Plaintiff does not explicitly identify the nature of her "race discrimination" claim. Her arguments regarding direct and indirect methods of proof of race discrimination essentially claim that she was treated less favorably by Autoliv because of her race. The court therefore construes her general "race discrimination" claim as a disparate treatment claim and refers to it as such in the remainder of this entry. See Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996) (noting that "disparate treatment" under Title VII occurs when an "employee is treated less favorably simply because of religion, color, sex, national origin, or . . . race").
1. Summary Judgment Standard
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To withstand summary judgment, the nonmovant must demonstrate that the record as a whole permits a rational fact-finder to rule in his favor. See Essex v. United Parcel Serv., Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The moving party has the initial burden to show that the record presents no genuine issue of material fact, but if the nonmoving party bears the ultimate burden of proof on an issue, then 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 Celotex, 477 U.S. at 324; Essex, 111 F.3d at 1308. The evidence is construed in the light most favorable to the nonmoving party and all reasonable inferences are drawn in that party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Janiuk v. TCG/Trump Co., 157 F.3d 504, 505 (7th Cir. 1998). A mere scintilla of evidence in support of the nonmovant's position is insufficient; the question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52; see also Essex, 111 F.3d at 1308.
2. Plaintiff's Disparate Treatment Claim
To prevail on a disparate treatment claim, a plaintiff must ultimately prove that the defendant intentionally discharged, refused to hire, or otherwise discriminated against the plaintiff because of his or her race. See Johnson, 91 F.3d at 931; 42 U.S.C. § 2000e et seq. The plaintiff may prove discriminatory intent by direct evidence or by the method of indirect proof outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Johnson, 91 F.3d at 931.
a. Direct Method of Proof
Direct proof is "evidence which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption." Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997) (quotation omitted). Ms. Patterson contends that "[t]he declaration of Dwyer is direct evidence of discrimination . . . leav[ing] no doubt that Ms. Patterson was the target of racial discrimination and racial harassment." (Pl.'s Resp. Mot. Summ. J. at 6.) The court disagrees.
What remains of Mr. Dwyer's declaration after all speculation, conclusory allegations, and legal opinion have been stricken may be summarized as follows:
Introductory (unnumbered) ¶ — Mr. Dwyer is a white male, who was a production superintendent for Autoliv from October 1, 1996 through February 3, 1997.
¶ 1 — Peter Ludlum told Mr. Dwyer that Mr. Dwyer was hired to "get rid of those Niggers on the second shift."
¶ 2 — Mr. Ludlum referred to African-American employees as "Niggers" in Mr. Dwyer's presence on a daily basis for approximately the first month of Mr. Dwyer's employment at Autoliv.
¶ 3 — At least four administrative staff members told Mr. Dwyer to discipline African-American employees more harshly than white employees.
¶ 5 — Mr. Dwyer's requests for transfers from the second shift to the first on behalf of three African-American supervisors (Ms. Patterson, Gwen Spells, and Diane Williams) were not approved.
¶ 6 — Mr. Dwyer's requests for company-sponsored training on behalf of African-American supervisors were denied in most cases, while first-shift white supervisors "regularly" were provided this training.
¶ 7 — Mr. Dwyer knew that the three same supervisors named in paragraph five were denied access to facilities reserved for supervisors (specifically noting only restrooms, and referring broadly to "other areas").
¶ 8 — Mr. Dwyer had been told by James Ross to charge second-shift African-American supervisors for tee-shirts and leather folders with the company logo, he was aware that Mr. Ross provided the shirts and folders to at least some white first-shift supervisors without charge. Mr. Dwyer also was aware that Mr. Ross provided Christmas turkeys and catered food to at least some first-shift white supervisors, and that at least some second-shift African-American supervisors were not provided the turkeys and catered food.
¶ 9 — Mr. Dwyer gave "good" performance evaluations to Ms. Patterson and three other employees in January 1997. Mr. Ross advised Mr. Dwyer that submitting positive evaluations for these employees would preclude Mr. Dwyer from firing any of the four employees.
Paragraphs 1,2,3,8, and 9 do not demonstrate that Ms. Patterson had ever heard of these events, or that these events had any effect on her. See Miller v. American Family Mutual Ins. Co., 203 F.3d 997, 1005 (7th Cir. 2000) ("When a plaintiff proceeds under the direct proof method, allegedly discriminatory statements are relevant . . . only if they are both made by a decisionmaker and related to the employment decision at issue . . . [the plaintiff] cannot make a claim unless [a decisionmaker's] bigotry harmed her."); see also Pryor v. Seyfarth, Shaw, Fairweather Geraldson, 212 F.3d 976, 978 (7th Cir. 2000) ("Insofar as Woodford harassed other employees, and did so without (so far as appears) [plaintiff's] knowledge, it could not have altered her conditions of employment, and so she could not complain about that harassment under Title VII. At argument her lawyer told us that Woodford had leered at her without her knowing it, and he adduced this as evidence that Woodford's harassment was `pervasive.' It was actually irrelevant.") (emphasis in original) (citations omitted); (Patterson Dep. at 66-67 (testifying that Ross did not ever address her disrespectfully or unprofessionally, demote her, fire her, or give her a bad evaluation); 36-37, 151 (testifying that the only racially related comment Mr. Ludlum ever said to her was at a dinner in 1994 or 1995 and consisted of the statement, "I just don't like blacks."); 151 (responding negatively to a question as to whether she had ever heard any other management employee of Autoliv make racially derogatory remarks); 150-51 (testifying that she did not know of benefits white people got that African-Americans did not get at Autoliv, and that she obtained disability leave for which she had applied).)
Paragraphs 5, 6 and 7 reiterate Ms. Patterson's deposition testimony that she lacked access to at least a lunchroom reserved for supervisory personnel, was denied company-sponsored training opportunities, and was denied transfer to the first shift. (Patterson Dep. at 126, 132, 137-38.) However, these facts alone do not directly demonstrate either discrimination or harassment on account of race without inference or presumption. Indeed, Ms. Patterson's own deposition testimony indicates that these conditions could be due to factors other than racial bias. (Patterson Dep. at 128 (testifying that only four men, including two African-Americans, had access to a supervisory lunchroom, and that other white supervisors were denied access as well); 132 (testifying that she did not know who got the positions for which she wanted a transfer); 137-40 (testifying that all second-shift supervisors were denied requests to attend company-sponsored training because of replacement problems, that African-American supervisors on the first shift were allowed to attend, and that she did not know how many white supervisors were allowed to attend).) Moreover, Ms. Patterson explicitly testified that her frustrations with the work environment at Autoliv were related to the attitudes of both white and African-American co-workers, that management expected her to do more than her share of work, and that management gave her ultimatums that other supervisors ( both white and African-American) did not get. (Patterson Dep. 152-53.) Thus, Ms. Patterson has provided no direct evidence of disparate treatment on account of her race.
b. Indirect Method of Proof
In the absence of direct proof of disparate treatment, Plaintiff must establish a prima facie case of such racial discrimination by producing evidence that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she performed her job satisfactorily; and (4) other similarly-situated employees outside her race were treated more favorably. See Cowan v. Glenbrook Sec. Serv., Inc., 123 F.3d 438, 445 (7th Cir. 1997); Oates v. Discovery Zone, 116 F.3d 1161, 1171-72 (7th Cir. 1997). If the Plaintiff does not produce evidence establishing the prima facie case, her claim must be dismissed. See Cowan, 123 F.3d at 445.
The parties do not dispute the first and third elements of the prima facie case-i.e., that Ms. Patterson is a member of a protected class (she is African-American) and that she was performing her job satisfactorily. The parties dispute whether she suffered an adverse employment action, and whether white similarly-situated employees were treated more favorably with regard to pay, certain minor benefits, training, use of facilities reserved for supervisory personnel, and disciplinary actions. ( See Def.'s Br. Supp. Mot. Summ. J. at 3-5, ¶¶ 5-8, 10-12, 16; Pl.'s Resp. Mot. Summ. J. at 2-4, ¶¶ 5-8, 10-12, 16.)
i. Adverse Employment Action
An "adverse employment action" must be a material change in the terms and conditions of employment that is significant, and not merely displeasing, to the employee. See Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). While actions such as discharge, demotion, suspension, or probation may be sufficiently adverse, negative performance evaluations alone are not. See id. Ms. Patterson asserts that she was given two "write-ups" in 1997, and that she eventually was terminated from Autoliv in 1999. (Pl.'s Resp. Mot. Summ. J. at 2; Patterson Decl. ¶¶ 3, 5.) The write-ups could be construed as a particularized responses to some concern or incident apart from the ordinary performance appraisal process occurring as a matter of course. These write-ups occurred at apparently irregular intervals relative to the performance evaluation given by Mr. Dwyer in January 1997-the first occurring approximately four months after the evaluation (5/19/97), and the second occurring approximately six months after the evaluation (7/7/97). Moreover, copies of the write-ups indicate that they are disciplinary in nature. (Pl.'s App. 4 ("Failure to show immediate improvement (and maintained) will result in appropriate disciplinary action up to and including termination"); App. 5 (providing a "First Written Warning" for a "violation" on a "Notice of Discipline" form).) Drawing inferences in favor of Ms. Patterson as the nonmovant, the write-ups arguably represent something more than a negative performance evaluation and sufficiently akin to probation to constitute an adverse employment action for the purposes of opposing the summary judgment motion.
A finding of an adverse employment action on the basis of the write-ups is not outcome determinative, see discussion infra, and obviates the need to reach the issues raised by Autoliv as to the relevance of the termination which occurred approximately two years after the filing of the complaint. (Def.'s Reply Supp. Mot. Summ. J. at 16-17 n. 7)
ii. More Favorable Treatment of White Similarly-situated Persons
In a Title VII action, individuals with whom a plaintiff would compare herself need not be identical in all respects, but their situations must be comparable to that of the plaintiff's. See Morrow v. Wal-Mart, 152 F.3d 559, 561 (7th Cir. 1998); Auston v. Schubnell, 116 F.3d 251, 254 (7th Cir. 1997) (holding that a female nurse who did not take a protracted leave of absence was not similarly-situated to a male nurse terminated after a protracted leave of absence). Ms. Patterson alleges that she was treated differently from white co-workers regarding pay, training, use of facilities reserved for supervisors, benefits, disciplinary action, and "terms and conditions of her employment including job assignment." (Pl.'s Resp. Mot. Summ. J. at 7-8.) In support of these allegations, Ms. Patterson relies almost exclusively on Mr. Dwyer's declaration, citing her own declaration only once and never relying on her deposition testimony. Each allegation will be reviewed in turn, referring to the prior summary of what remained of Mr. Dwyer's declaration after all speculation, conclusory allegations, and legal opinion had been stricken.Regarding the allegation that white supervisors were given pay increases for increased responsibilities when she was not, Ms. Patterson relies on paragraph four of Mr. Dwyer's declaration, which was stricken in its entirety. The cited evidence does not contain any information as to Ms. Patterson's specific pay rates relative to differing responsibility levels, nor is any comparative information provided regarding pay rates, effective dates of pay increases, job duties, or qualifications for any white co-workers. Thus, no admissible facts have been introduced into the record to create a genuine issue of fact that similarly-situated white workers are paid more for the same or fewer job responsibilities.
Even if this paragraph were not stricken, it fails to establish that similarly-situated white employees were treated more favorably than the Plaintiff. The paragraph states that second-shift African-American supervisors were intentionally paid thousands of dollars less than their white counter-parts on the first shift. Mr. Dwyer's statement, however, does not indicate that all second-shift supervisors were African-American or that all first-shift supervisors were white. Also, there is no indication that African-American first-shift supervisors were treated any differently than white first-shift supervisors, or that any white second-shift supervisors were treated any differently than African-American second-shift supervisors. Paragraph four of Mr. Dwyer's declaration also alleged that some of the white supervisors who received more pay had less seniority than the second-shift African-American supervisors. However, Ms. Patterson noted in her deposition that supervisor pay varied according to experience, (Patterson Dep. at 179), but neither she nor Mr. Dwyer provided any information comparing pay rates relative to experience for either white and African-American supervisors. Therefore, factors other than race, such as shift and experience, may account for any pay disparity that may exist. Without the elimination of these non-race related factors, only speculation would allow the inference that race was the basis of the disparity. Speculation is not the source of a reasonable inference. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is "not required to draw every conceivable inference from the record [in favor of the non-movant] — only those inferences that are reasonable"); Senner v. Northcentral Tech. College, 113 F.3d 750, 757-58 (7th Cir. 1997) (finding no reasonable inference of gender discrimination from the fact that no men made a final round of interviews).
Ms. Patterson relies on paragraph six of Mr. Dwyer's declaration in support of her allegation that she was not provided company-sponsored training that other supervisors received. That paragraph establishes only that Mr. Dwyer's requests for company-sponsored training on behalf of African-American supervisors were denied in most, but not all, cases. Ms. Patterson noted that she had not been denied all company-sponsored training, having attended one seminar, (Patterson Dep. at 139), and she did not document the numbers of seminars attended by other supervisors on either shift. Additionally, while Mr. Dwyer's statement indicates that first-shift white supervisors "regularly" were provided this training, Ms. Patterson testified that African-American supervisors on the first shift also received training and that second-shift supervisors were not allowed to attend because of problems in finding replacements. (Patterson Dep. at 137-38.) Thus, the evidence indicates that the shift worked at Autoliv, rather than one's race, accounts for differences in training.
Regarding Ms. Patterson's lack of access to the lunchroom and restroom for salaried employees, she relies on paragraph seven of Mr. Dwyer's declaration, which does confirm that Ms. Patterson did not have access to facilities reserved for supervisors (his general reference to "other areas" presumably could include the lunchroom). However, Mr. Dwyer's declaration provides no facts regarding who did have access to those areas for comparison. The only comparison information is presented by Ms. Patterson's deposition testimony that only four men, including two African-Americans, had access to a supervisory lunch room, and that other white supervisors were denied access as well. (Patterson Dep. at 126-28.) Such a random pattern "in which blacks sometimes do better than whites and sometimes do worse . . . [alone] is not evidence of discrimination at all." Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993), cert. denied, 511 U.S. 1071 (1994).
Ms. Patterson relies on paragraph eight of Mr. Dwyer's declaration to support an allegation that she was treated differently from white co-workers with respect to certain minor benefits. Assuming that Mr. Dwyer was told by Ross to charge African-American second-shift supervisors for tee-shirts and leather folders that were given free of charge to white first-shift supervisors, his statement does not indicate whether in fact the second-shift supervisors were charged for those items and, more importantly, whether Ms. Patterson was charged. Additionally, he names no white workers who actually received those items, provides no information beyond their titles as "supervisors" as to how they might be similarly-situated to the Plaintiff, and is silent as to the issue whether the first-shift African-American supervisors did or did not receive the items free of charge. Similarly, Mr. Dwyer's generalized statements regarding differences in the provision of Christmas turkeys and catered food do not provide such necessary details as the names of white workers who actually received those items, information beyond "supervisor" titles as to how those workers might be similarly-situated, or whether the first-shift African-American supervisors did or did not receive those items free of charge. Moreover, Ms. Patterson testified that she did not know of any benefits white people got that African-Americans did not at Autoliv. (Patterson Dep. at 150-51.) In short, no admissible facts have been introduced to create a genuine issue of fact that similarly-situated white workers were treated more favorably than Ms. Patterson with respect to any benefits, minor or otherwise.
Ms. Patterson's deposition testimony implies that supervisors were not all alike in terms of either experience or seniority. (Patterson Dep. at 179.)
In support of the allegation that Ms. Patterson was treated differently from white co-workers regarding disciplinary action, Ms. Patterson relies on the third paragraph of Mr. Dwyer's declaration and the fourth paragraph of her declaration, the latter of which was stricken in its entirety. The mere fact that Mr. Dwyer may have been told to discipline African-Americans more harshly, (Dwyer Decl. ¶ 3), is insufficient alone to raise a genuine issue of material fact because he provides no dates or details about incidents giving rise to these alleged instructions. Mr. Dwyer also does not identify any particular instance where any African-American employee (let alone Ms. Patterson in particular) was actually punished more severely than a white employee for the same offense. In other words, Ms. Patterson has not shown that this discriminatory statement (which she did not hear) actually translated into an effect on her.
Ms. Patterson's allegation that she was punished for a mistake that a white employee, Sue Jewell, was not, was stricken because no meaningful information was provided to demonstrate the alleged "mistake" or how Jewel's position, experience, work performance, or disciplinary record compared to Ms. Patterson's. As discussed above, Ms. Patterson's conclusory assertions that she was similarly-situated to Ms. Jewel, and committed the same mistake as Ms. Jewel, are alone insufficient. Thus, no admissible facts have been introduced to create a genuine issue of fact that similarly-situated white workers were treated more favorably with respect to disciplinary actions.
Finally, Ms. Patterson alleges differential treatment regarding the "terms and conditions of her employment including job assignment," and she cites again to the third paragraph of Mr. Dwyer's declaration (alleging that Mr. Dwyer was told to discipline African-Americans more harshly). (Pl.'s Resp. Mot. Summ. J. at 8.) For reasons discussed above, the third paragraph of Mr. Dwyer's declaration fails to raise a genuine issue of material fact about disparate treatment regarding "the terms and conditions of Ms. Patterson's employment."
If Plaintiff was intending to refer to the job transfer issue specifically in this part of her argument, the court recognizes that she may have intended to refer to Mr. Dwyer's Decl. ¶ 5 and made a typographical error in the citation. The court notes that if this was her intent, the mere fact that transfer requests for Ms. Patterson and two other African-American second-shift supervisors were not approved is insufficient to create a genuine issue of fact. Neither Mr. Dwyer or Ms. Patterson provided any evidence that the employees who got the first-shift positions at issue were similarly-situated and white.
Ms. Patterson has not presented any admissible facts about any particular white worker that would tend to show that such a worker was treated more favorably than the Plaintiff. Additionally, Ms. Patterson has provided no information about white workers at all regarding such basic factors as duties, pay rates, disciplinary records, seniority, work history, experience, or other qualifications. Thus, no genuine issue of fact has been raised as to the fourth element of the Plaintiff's prima facie case of racial discrimination. The Plaintiff's failure to establish any one of the four elements of the prima facie case renders summary judgment appropriate for the employer. See Fisher v. Wayne Dalton Corp., 139 F.3d 1137, 1142 (7th Cir. 1998) ("Fisher fails to raise a genuine issue of material fact that he could satisfy the prima facie case requirement that a similarly-situated employee received more favorable treatment. . . . [T]his court need not proceed any further in the McDonnell Douglas analysis once we determine that a claimant has failed to make a prima facie case."). The court therefore finds that Autoliv's Motion for Summary Judgment regarding Ms. Patterson's disparate treatment claim should be GRANTED.
2. Plaintiff's Racially Hostile Work Environment Claim
A hostile work environment claim "requires a showing of severe or pervasive conduct." Burlington Indus. v. Ellerth, 524 U.S. 742, 754 (1998). Accordingly, Ms. Patterson must show more than a few isolated incidents or comments; she must demonstrate that harassment was "sufficiently severe or pervasive as to alter the conditions of [her] employment and to create an abusive working atmosphere." Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 345 (7th Cir.), cert. denied, 120 S.Ct. 178 (1999); see also Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995) (noting that a distinction must be made between "a merely unpleasant working environment . . . and a hostile or deeply repugnant one. . . ."). In assessing the severity of the conduct, the court considers the actual effect of the conduct on the plaintiff's well-being and ability to perform her work, and whether a reasonable person would perceive the conduct as sufficiently severe as to change the conditions of employment. See Pryor v. Seyfarth, Shaw, Fairweather Geraldson, 212 F.3d 976, 977 (7th Cir. 2000); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993).
Ms. Patterson does not contend that she was the subject of discrimination, intimidation, ridicule or insult as normally would be recognized as a hostile working environment. See Rodgers, 12 F.3d at 678. Rather, she contends that she was racially harassed indirectly by the totality of treatment she received by Autoliv. (Pl.'s Resp. Mot. Summ. J. at 3.) As such, Ms. Patterson's allegations of harassment do not fit neatly into the traditional analysis of a hostile work environment claim. See Johnson v. City of Fort Wayne, 91 F.3d 922, 938 (7th Cir. 1996). She relies largely on Mr. Dwyer's and her own unsupported conclusions that an atmosphere of prejudice existed at Autoliv, but her claim cannot prevail without evidence of harassing conduct directed at Ms. Patterson. ( Id.)
In summary, the admissible facts of Mr. Dwyer's and Ms. Patterson's declarations, taken together, show at most that:
1) Peter Ludlum and three other administrative staff made statements indicative of bias against African-American employees in Mr. Dwyer's presence.
2) Shift transfers and access to at least the some facilities reserved for supervisors were denied to three African-American supervisors, including the Plaintiff.
3) Most, but not all, training requests for African-American supervisors put in by Mr. Dwyer during his three-month tenure at Autoliv were denied.
4) James Ross advised Mr. Dwyer that positive performance evaluations were an impediment to any future discharge of four African-American employees, including the Plaintiff.
5) Sometime during Mr. Dwyer's three months at Autoliv, Ross favored white first-shift white supervisors over second-shift African-American supervisors in the distribution of minor benefits such as free tee-shirts, leather folders, and Christmas food items.
6) Ms. Patterson incurred two write-ups in mid-1997, after a positive performance evaluation in January 1997 and two years prior to her termination of employment at Autoliv in 1999.
Ms. Patterson provides no evidence that she ever heard any Autoliv employee make any racially derogatory or discriminatory remarks in the workplace. Ms. Patterson also provides no evidence that she personally knew about any tee-shirts, folders, and Christmas food being given to white first-shift workers, or that she did not receive any such items. Without any knowledge of any degrading references or differential distribution of minor benefits, such conduct could not have altered Ms. Patterson's conditions of employment. See Pryor, 212 F.3d at 978.
Ms. Patterson also does not provide any evidence that Mr. Ross' remark to Mr. Dwyer that positive performance evaluations would impede discharge of an employee has any connection with her two write-ups in or with her termination of employment at Autoliv over two years later. Nor does Ms. Patterson provide any evidence that the denied training was the result of anything other than the replacement difficulties for second-shift supervisors, (Patterson Dep. at 137 ("They only had [training] for first shift. We couldn't go because we couldn't find nobody to replace us.")), that access to the lunchroom was anything more than mere capriciousness, ( id. at 128 ("I think [Reid York] was the only [white supervisor], him and a couple of people . . . ate up there, maybe Peter Ludlum ate up there. Charles Phillips [an African-American man] ate up there.")), or that denied transfers were somehow connected to race.
Ms. Patterson also noted that the conduct being complained of was no longer an issue at the time of her deposition, which occurred at least a year prior to her termination of employment at Autoliv. ( See Patterson Dep. at 164.)
Although Ms. Patterson did hear Mr. Ludlum make one isolated remark at a dinner that he "did not like blacks," this one comment is insufficient to render a workplace objectively hostile. See, e.g., Filipovic v. K R Express Sys., Inc., 176 F.3d 390 (7th Cir. 1999) (holding that four national origin-related comments made over the course of more than a year were insufficient to constitute a hostile work environment because they did "not have the purpose or effect of unreasonably interfering with an individual's work performance.") (citation omitted). Also, there is no evidence that this comment, made at least two years prior to the write-up by Mr. Ludlum, had any subjective effect on her-she provides no evidence of how the one remark affected her ability to work or her well-being in any way. See Johnson, 91 F.3d at 938 (holding that racial slurs made about a plaintiff, out of his presence, were insufficiently frequent and severe to create a hostile work environment claim); Ngeunjuntr v. Metropolitan Life Ins., 146 F.3d 464, 467 (7th Cir. 1998) ("[R]elatively isolated instances of nonsevere misconduct will not support a claim of hostile environment.").
There simply is insufficient evidence to raise a genuine issue of material fact as to whether a reasonable person would find this workplace to be anything more than unpleasant. Indeed, Ms. Patterson has offered no more proof of the actual effects of Autoliv's conduct on her than a feeling of being overworked, underappreciated, and frustrated-all without any admissible evidence tending to show a connection of these effects to race. Indeed, Ms. Patterson testified that she was frustrated with doing the work of both white and African-American co-workers, and frustrated that other supervisors ( both white and African-American) were not expected to do the work of others. (Patterson Dep. at 152-53.) The court therefore finds no evidence tending to create a genuine issue of material fact as to whether Ms. Patterson's conditions of employment were altered by an allegedly racially hostile work environment at Autoliv, and Autoliv's Motion for Summary Judgment regarding this claim should be GRANTED.
III. Conclusion
Every evidentiary submission by Ms. Patterson in opposition to Autoliv's Motion for Summary Judgment is technically deficient and must be stricken. Even if Ms. Patterson were able to cure those technical defects, the court finds no direct evidence of racial discrimination. The court also finds that Ms. Patterson did not create a genuine issue of material fact as to one of the four elements necessary to establish a prima facie case of disparate treatment under the McDonnell Douglas indirect method of proof of racial discrimination. Specifically, her evidence (even if cured of its technical defects) did not create a genuine issue of fact as to whether similarly-situated white employees were treated more favorably by Autoliv. Additionally, Ms. Patterson did not create a genuine issue of material fact as to whether the conduct of management personnel at Autoliv was sufficiently pervasive and severe to create a racially hostile working environment. For these reasons, the court finds that Autoliv's Motion for Summary Judgment on both claims should be GRANTED. Conversely, Non-Movant's Motion to Deny Summary Judgment is DENIED.
Thus, all of Ms. Patterson's claims are terminated by this Entry. There is no just reason for delay entering judgment as to those claims, and that will be done pursuant to Fed.R.Civ.P. 54(b). As to the remaining plaintiffs, no final judgment will be entered at this time.
ALL OF WHICH IS ORDERED this 19th day of July 2000.