Opinion
Cause No. 1:99-CV-496
October 18, 2002
MEMORANDUM OF DECISION AND ORDER
On December 9, 1999, Plaintiff in this case, Kenneth D. Barnes ("Barnes") filed a pro se complaint against PACE Union Local 7903 ("the Union") under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Barnes alleged that the Union had discriminated against him on the basis of his race. On or about February 22, 2000, Barnes retained counsel. Barnes's new counsel sought and obtained permission to file an amended complaint. Barnes then filed his amended complaint on March 7, 2000. The amended complaint named Dana Corporation ("Dana") as an additional defendant.
The parties stipulated to the dismissal of the Union on August 30, 2000, leaving Dana as the sole defendant in this case. Dana moved for summary judgment on February 7, 2001. Plaintiff responded to the motion for summary judgment on April 29, 2002. Dana then filed a final reply on May 16, 2002. Plaintiff filed motion for leave to file a second amended complaint on May 30, 2002 to include a new claim of retaliatory discharge. This Court granted that motion on June 4, 2002. Dana then filed a supplemental brief in support of summary judgement addressing the new claim of retaliatory discharge.
The lengthy delay in the filing of Plaintiff's response was due, in part, to the fact that Plaintiff's original counsel withdrew his appearance in this case. The Court then appointed Plaintiff new counsel for the purpose of defending the now-pending motion for summary judgment.
For the reasons set forth herein, Dana's motion for summary judgment will be GRANTED.
FACTUAL BACKGROUND
I. The Collective Bargaining Agreement Rules
Barnes is a forty-six (46) year-old Black male whose employment with Dana commenced in October 1984. As an employee of Dana, Barnes was a member of the Union and all terms and conditions of his employment with Dana were governed by the Collective Bargaining Agreement ("CBA") between the Union and Dana. The CBA contains rules and regulations that, if violated, will subject an employee to discipline, including discharge.
Specifically, the CBA categorizes absenteeism as a violation of the Category II Plant Rules. If an employee is absent from work because he or she is sick, the employee must provide Dana a physician's statement to certify that the absence is due to illness. If the employee fails to provide such a statement, the absence will be a violation of the Category II Plant Rules and will result in discipline. According to the CBA, the physician's statement must include the following:
1. Date the employee is first unable to work;
2. Date of first illness;
3. Date the employee is able to return to work; and
4. Nature of the illness.
The CBA also establishes various steps for disciplining employees who violate Category II Plant Rules. Upon the first violation, the foreman will talk with the employee. If the employee violates the rules again, the foreman can opt to merely talk with the employee again or to give the employee a documented verbal warning. After an employee receives a documented verbal warning, he or she will be subject to a written warning from the foreman upon further violation of the rules. The next disciplinary step is a second written warning from the foreman or shift superintendent. If the employee violates the rules again, he or she can be subject to a "yellow card" written warning and/or disciplinary layoff. The final step, if the employee continues to violate the rules, is discharge.
II. Barnes's Absenteeism
While employed at Dana, Barnes had been disciplined on several occasions for being absent from work without an excuse:
1. On March 8, 1993, Barnes was absent for three days and did not provide an excuse. As a result, he was warned that if he again missed work without notifying the company, he would be disciplined up to and including termination.
2. On June 24, 1993, Barnes was absent without an excuse. He was issued a written warning for absenteeism in violation of the Category II Plant Rules. During the disciplinary meeting, Barnes also received a "Redi-Med Letter" which provided that Barnes could only be absent from work if Barnes's supervisor approved the absences in advance, or in the case of an illness, those approved by the company physician, Dr. Hurley, or his designated representative at Redi-Med, Inc. At this meeting, Barnes was advised that physician slips had to be submitted on time and that he had to follow the rules regarding submitting physician slips or he would face discharge.
3. On July 23, 1993, Barnes had another unexcused absence after he stayed up all night playing in a card game. Jim Butz ("Butz"), Human Resource Manager, advised Barnes that although this unexcused absence was a violation of his Redi-Med Letter, Barnes would be given another opportunity to improve his attendance.
4. Barnes was again absent on October 7 and October 8, 1993. Barnes admits that he was absent because he had to go to court, but does not remember if he obtained proper permission.
5. On August 22 and August 23, 1994, Barnes was absent without an excuse because his girlfriend was hospitalized with a pregnancy-related problem.
6. On October 14, 1994, Barnes was absent without an excuse and received a verbal warning for violating Category II, Rule 2 (Absenteeism) of the CBA.
7. On February 14, 1995, Barnes was again absent without an excuse. Barnes received a documented verbal warning.
8. On March 6, 1995, Barnes missed work without an excuse. As a result, he received a written warning. Both Barnes and his Union steward, Joe Maritnez, signed the written warning.
9. On May 4, 1995, Barnes was absent without an excuse. He received a written warning from the Plant Superintendent, Harold Nevels. Barnes was warned that any further violations would result in more serious disciplinary actions.
10. On July 31, 1995, Barnes was again absent without an excuse. He received yet another warning for violating the Category II Plant Rules. He was also warned that any further violation of Category II, Rule 2 (Absenteeism) would result in discharge. He was again advised about what must be included in a physician's statement to certify that an absence was due to illness.
11. On August 30 and 31, 1995, Barnes missed work without an excuse. Barnes was advised that he had not presented an acceptable physician's statement for these absences. He then, albeit late, submitted a second doctor's slip that conformed with the requirements of the CBA.
As a result of these absences, Barnes was suspended for four days. He also received a letter from Larry Kohlhorst ("Kohlhorst"), Human Resource Specialist, specifically instructing him that if he were to produce a physician's statement in the future, it must contain the information required by the CBA and be submitted on time. Furthermore, Kohlhorst advised Barnes that Barnes was being placed on a "yellow card" warning. This meant that the next disciplinary step would be termination.
12 On December 4, 1995, Barnes called into the guard station to report that he was sick. He went to the Emergency Room, where he was diagnosed with Pleurisy. Barnes returned to work on December 5, 1995 and provided a doctor's slip. Barnes admits that the doctor slip did not contain all of the information required by the CBA. He offered to have the doctor correct or supplement the slip, but was refused. Thereafter, Barnes was discharged on December 5, 1995 for violating his "yellow card" warning.
III. Racial Harassment
Barnes alleges that he was subject to racially harassing behavior during his employment at Dana. Racial graffiti was written on the bathroom walls stating things like, "Blacks go back," and "Niggers stay home." Moreover, Barnes had tools stolen from his work space and unknown co-workers deliberately tampered with the water level in Barnes's machine, causing malfunctions.
Barnes states that in the summer of 1994, some unknown co-employees stacked boxes to make it difficult for Barnes to do his job. On October 30, 1995, Barnes was disciplined for insubordination because he refused to remove a shirt that his co-employees found offensive. The shirt supported the O.J. Simpson verdict and read "Real Racism Sucks" on the back, and on the front, "O.J. not guilty — you can no longer blame the black man for the devilish crimes." Barnes was suspended for four days. Shortly thereafter, in November of 1995, Barnes found a hangman's noose placed on his toolbox, dripping with hydraulic fluid.
Barnes complained to Kohlhorst and others regarding these incidents of racial harassment. Dana initiated an investigation into the incidents of racial harassment, but was unable to identify the employee or employees responsible. On November 9, 1995, Barnes filed a Charge of Discrimination with the EEOC regarding being disciplined for refusing to remove the O.J. shirt and regarding the hangman's noose incident.
APPLICABLE LEGAL STANDARD
"Summary judgment is proper only if `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)). While the moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record, if any, which it believes demonstrate the absence of a [genuine issue of] material fact, there is nothing in Rule 56 that requires a moving party to negate an essential element of an opponent's claim for which the opponent will bear the ultimate burden at trial." Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 3178 (1986)). Rather, the standard for granting summary judgment requires the district court to grant summary judgment if the record before us "could not lead a rational trier of fact to find for the non-moving party." McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
The burden is therefore on the non-movant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). "In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Debs v. Northeastern Illinois Univ., 153 F.3d 390, 394 (7th Cir. 1998). Substantive law determines which facts are "material"; that is, those facts which might affect the outcome of the suit under the governing law. See McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996). Consequently, a dispute over irrelevant or unnecessary facts does not preclude summary judgment. See Hardin v. S.C. Johnson Sons, Inc., 167 F.3d 340, 344 (7th Cir. 1999).
The non-moving party may not rest on the allegations of the pleadings in opposing a motion for summary judgment. See Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Rather, the non-moving party must produce some evidence sufficient to show that a genuine issue of material fact exists. "Furthermore, a `party needs more than a scintilla of evidence . . . to defeat summary judgment.'" Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (quoting Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997)). Thus, a summary judgment determination is essentially an inquiry as to 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.
DISCUSSION
I. Racial Discrimination
Barnes first claims that Dana discriminated against him by terminating him based on his absence on December 4, 1995. To survive summary judgment in a discrimination case, a plaintiff must raise an inference of discrimination through one of two methods. The first method is to put forth enough evidence (whether direct or circumstantial) to raise a genuine issue whether the employer has a discriminatory motivation in carrying out the challenged employment action. What is required is evidence from which a rational trier of fact could reasonably infer that the Dana had fired the Barnes because he was a member of a protected class. See Kariotis v. Navistar International Transp. Corp., 131 F.3d 672, 676 (7th Cir. 1991). The second method is to satisfy the elements of the McDonnell-Douglas burden-shifting analysis as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973).
In this case, Barnes has submitted circumstantial evidence from which he argues a rational jury could infer racial discrimination. In Troupe v. May Department Stores, Inc., 20 F.3d 734 (7th Cir. 1994), the Seventh Circuit noted that there are three types of circumstantial evidence which would defeat a motion for summary judgment. Each type may be sufficient by itself to support a judgment for the plaintiff, or the three types may be used together. See Troupe, 20 F.3d at 736. The first type consists of "suspicious timing, ambiguous statements, oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn." Id. The second type is a showing that other, similarly situated employees not in the protected class received systematically better treatment. Id. The third type is evidence that the plaintiff was qualified for the job in question but passed over in favor of a person not in the protected class and the employer's stated reason for its decision is unworthy of belief. Id.
In this case, Barnes points to the fact that his termination came quickly after he was disciplined for wearing a T-shirt supporting the O.J. Simpson verdict and soon after he filed a Charge of Discrimination against Dana with the EEOC. In addition, Barnes argues that Dana's reason for terminating him is not credible, arguing that in firing him for a technically imperfect doctor's slip, Dana was making a "mountain out of a molehill." See Plaintiff's Response Brief to Defendant's Motion for Summary Judgement, April 29, 2002, page 11. This evidence falls into the first type discussed in Troupe in that it consists of "suspicious timing, ambiguous statements, oral or written, . . . and other bits and pieces from which an inference of discriminatory intent might be drawn." Id. Barnes would like this Court to focus only on the imperfect doctor's slip as the reason for his termination and completely ignore his lengthy absentee record. However, Barnes had a well-documented and lengthy history of absenteeism which included twelve (12) separate warnings from 1993 to 1995 as well as two or three "Last Chance Agreements." Barnes was also advised three (3) different times on the requirements of a physician's slip as well as receiving a Union newsletter describing the same. Barnes was last advised about the requirements of a physician's slip in a letter, dated September 6, 1995, from Larry Kolhorst to Barnes and the Union which stated, in part, "this letter will put Mr. Barnes and the Union on notice that any doctor's slip produced by Mr. Barnes must be valid the first time and must be submitted to his supervisor on time or he will be considered absent and subject to the yellow card warning." (Emphasis added). This letter and the fact that Barnes was on notice three (3) months before the final incident on December 4, 1995 that the doctor's slip must be valid the first time, certainly lends substantial credibility to Dana's contention that the December 4, 1995 absence was "the straw that broke the camel's back."
Barnes's circumstantial evidence amounts to the suspicious timing of his termination in proximity to his filing of a charge with the EEOC, the incident with the O.J. Simpson T-shirt, and the severity of Dana's action for a technically imperfect doctor's slip. The great undeniable fact is that Barnes had a well-documented and lengthy history of absenteeism and was on notice three (3) months prior to his termination on December 5, 2002 that he must submit a valid doctor's slip the first time. Barnes's circumstantial evidence does not put forth a "convincing mosaic of discrimination" against Dana and therefore, a rational trier of fact could not reasonably infer that the Dana had fired Barnes because he was a member of a protected class. Troupe, 20 F.3d at 737.
Since Barnes can not use the direct method to raise an inference of discrimination, his cause must be analyzed using the McDonnell-Douglas burden-shifting analysis. The prima facie test under McDonnell-Douglas requires Barnes to establish four things, that: (1) he belongs to a protected class; (2) he suffered an adverse employment action; (3) his performance met his employer's legitimate expectations; and (4) similarly situated others not in his protected class received more favorable treatment. Barnes must meet each prong of the prima facie test before it becomes necessary to reach the issue of pretext. Brummett v. Lee Enterprises, Inc., 284 F.3d 742, 744 (7th Cir. 2002). It is undisputed that Barnes belongs to a protected class and suffered an adverse employment action. Barnes is an African-American and he was terminated from his position with Dana on December 5, 1995. Barnes must prove by a preponderance of the evidence that his performance met Dana's legitimate expectations and that similarly situated Dana employees, not in his protected class, received more favorable treatment. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094 (1981).
To satisfy prong three of the McDonnell-Douglas analysis, Barnes must show that he was performing his job satisfactorily, meeting the legitimate expectations of his employer. Id. However, Barnes has not presented any objective evidence whatsoever to suggest that he was performing according to Dana's expectations. Barnes tries to creatively combine prongs three and four by arguing that he was performing his job as legitimately as well as similarly situated White employees who also had absenteeism problems. Unfortunately, that is not an accurate statement of the McDonnell-Douglas analysis. Barnes's performance must meet Dana's legitimate expectations. Brummett, 284 F.3d at 744. It is evident that from his well-documented and lengthy history of absenteeism (twelve warnings in three years and two or three "Last Chance Agreements"), Barnes was not meeting Dana's legitimate expectations for performance. The remainder of Barnes's response brief focuses primarily on Dana's alleged retaliatory motives. Because Barnes has not presented any evidence to show that he was performing his job to the satisfaction of Dana, he has not satisfied the third prong of the McDonnell-Douglas analysis and can not establish a prima facie case of racial discrimination.
Even if Barnes was able to establish the third prong of the McDonnell-Douglas analysis, he would still not be able to establish the fourth prong of the analysis. For the fourth prong, Barnes must show, by a preponderance of the evidence, that other similarly situated Dana employees, not in his protected class, received more favorable treatment. Burdine, 450 U.S. at 253. In fact, Dana has come forth with numerous employees, who were not in a protected class, who had absenteeism problems, and who had received multiple warnings as well as "Last Chance Agreements", that were treated the same as Barnes. These employees were terminated after receiving multiple warnings and after they had violated their "Last Chance Agreements." Barnes argues that not one of these employees were terminated for an unacceptable doctor's slip. However, the record shows that one Deborah Vasquez, a white female, was terminated because she did not present an acceptable doctor's slip in violation of her "Last Chance Agreement." Therefore, Barnes can not satisfy the fourth prong of the McDonnell-Douglas analysis.
Even if Barnes was able to satisfy all four prong of the McDonnell-Douglas analysis and establish a prima facie case of racial discrimination, the establishment of the prima facie case only creates a "legally mandatory, rebuttable presumption" that Dana unlawfully discriminated against Barnes. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (quotation omitted). Once this presumption has been created, the burden then shifts to Dana to articulate a nondiscriminatory reason for the employment decision. See id. at 311. If Dana is able to satisfy this burden, the McDonnell-Douglas presumption drops from the case and is no longer relevant. See Baron v. City of Highland Park, 195 F.3d 333, 339 (7th Cir. 1999).
Dana has articulated a nondiscriminatory reason for the employment decision to terminate Barnes on December 5, 1995. The letter, dated September 6, 1995, from Larry Kolhorst to Barnes and the Union which stated, in part, "this letter will put Mr. Barnes and the Union on notice that any doctor's slip produced by Mr. Barnes must be valid the first time and must be submitted to his supervisor on time or he will be considered absent and subject to the yellow card warning." (Emphasis added). Barnes's well-documented and lengthy history of absenteeism led to this final "Last Chance Agreement" which put Barnes on notice that if he did not properly submit, the first time, an acceptable doctor's slip, he would be in violation of his yellow card warning and be terminated. On December 4, 1995, Barnes was absent and on December 5, 1995, he submitted an unacceptable doctor's slip, in violation of his "Last Chance Agreement" and his yellow card warning. For this violation, he was terminated. Dana simply followed through on the warning they had given Barnes; if you do not provide an acceptable doctor's slip, you will be terminated. Barnes had been warned twelve times about his absenteeism problem and had been advised at least three times as to what constituted an acceptable doctor's slip. Regardless, Barnes still violated the rules and left Dana with no other alternative than to terminate his employment. Hence, Dana is able to articulate a nondiscriminatory reason for the employment decision and to satisfy the shifting of the burden.
Once Dana has come forth with a legitimate, nondiscriminatory reason for its decision to terminate Barnes, Barnes must come forth with evidence to show that Dana's reasons for firing him were merely a pretext. See Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1029 (7th Cir. 1998). "Pretext" is "more than a mistake on the part of the employer; pretext `means a lie, specifically a phony reason for some action.'" Id. at 1030 (quoting Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996)). Thus, "[t]he issue of pretext does not address the correctness or desirability of [the] reasons offered for employment decisions. Rather, it addresses the issue of whether the employer honestly believes in the reasons it offers." Id. at 1029. In the summary judgment context, "the ultimate burden is on [the plaintiff] to show that there is some genuine issue [of fact] as to whether the stated reasons form a pretext for . . . discrimination." Tyler v. Runyon, 70 F.3d 458, 467 (7th Cir. 1995) (quotation omitted). "The plaintiff can accomplish this by showing either that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence." Id. "The plaintiff may show that the defendant's proffered reasons are incredible by showing that (1) they have no basis in fact, or (2) they did not actually motivate the employer's decision, or (3) they were insufficient to motivate the discharge." Samuelson v. Durkee, 976 F.2d 1111, 1114 (7th Cir. 1992).
In the present case, the record shows that Dana's reasons for terminating Barnes are based in fact. Barnes's lengthy history of absenteeism is well-documented and includes twelve (12) separate warnings from 1993 to 1995 as well as two or three "Last Chance Agreements." Barnes was also advised three (3) different times on the requirements of a physician's slip as well as receiving a Union newsletter describing the same. Dana's motivation is also self-evident from the record. Dana's actions are dictated by the Collective Bargaining Agreement (CBA) with the Union which establishes the disciplinary steps for a violation of Category II Rule. A "yellow card warning," which Barnes received in the letter dated September 6, 1995, from Larry Kolhorst, is disciplinary Step 5. The next disciplinary step, Step 6, is discharge. Once Barnes violated his yellow card warning, Dana was required under the CBA to discharge him. In fact, Barnes filed a grievance with the Union after he was terminated, which then went to an independent arbitrator. The arbitrator determined that Barnes's claim was without any merit. Barnes Deposition, at pages 70-71 (August 22, 2000). The record clearly shows that Dana's decision to terminate Barnes was not pretextual. Dana followed the disciplinary steps outlined by the CBA and discharged Barnes when he reached Step 6. Barnes has not shown that Dana's "proffered explanation is unworthy of credence" or that a "discriminatory reason more likely motivated" Dana. Tyler v. Runyon, 70 F.3d at 467.
Barnes is unable to satisfy the third and forth prong of the McDonnell-Douglas analysis and cannot establish a prima facie case of racial discrimination. Even if Barnes could satisfy all prongs of the McDonnell-Douglas analysis, Dana is able to articulate a nondiscriminatory reason for the Barnes's termination and Barnes cannot show that Dana's reasons for terminating him were pretextual. For the aforementioned reasons, summary judgement on the racial discrimination claim will be granted.
II. Racial Harassment
Barnes also alleges that Dana is liable for the racial harassment Barnes suffered while a Dana employee. Hostile environment harassment occurs when racially offensive work place conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment." Meritor Savings Bank v. Vincent, 477 U.S. 57, 65 (1977). The racially offensive conduct must be "sufficiently severe or pervasive to make the workplace intolerable for members of the group discriminated against." Minor v. Ivy Tech State College, 174 F.3d 855, 857 (7th Cir. 1999). Conduct must be "extreme to alter terms and conditions of employment." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1999).
Here, the evidence indicates that Barnes suffered several incidents of racial harassment. Indeed, the Court is dismayed by the racially harassing behavior to which Barnes was subjected. The Court is particularly disgusted with the incident in which Barnes found a hangman's noose dripping in hydraulic fluid at his work station. Such acts are simply deplorable. It is hard to imagine that such actions would not, as Dana argues, rise to the level of actionable harassment under Title VII.
However, as Dana states, an employer is only liable for the harassment of co-workers by another co-worker under Title VII if (1) the employer knows or has reason to know of the alleged misconduct; and (2) the employer unreasonably fails to take appropriate corrective action. See Haugerud v. Amery School District, 259 F.3d 678, 700 (7th Cir. 2001); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir. 1992). Here, it is undisputed that Barnes reported the racially harassing behavior to Kohlhorst and others. However, it is also undisputed that Dana conducted an investigation into the racially harassing incidents within a few weeks of their occurrence and was unable to determine who was responsible for the acts. Barnes has not suggested any other steps that Dana should have taken in response to the racial harassment and this Court can think of none. In short, it appears Dana did everything it could do to redress the racial harassment Barnes suffered, given that the culprit could not be identified. Accordingly, Dana acted appropriately under the circumstances and cannot be held liable for the racial harassment Barnes suffered. Summary judgment on the racial harassment claim will be granted.
Barnes has not alleged that any of the racially harassing incidents he suffered were caused by Dana supervisors. Accordingly, the Court uses the test for co-worker harassment liability.
III. Retaliation
Barnes's Second Amended Complaint added a claim for retaliatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2008, et. seq. Barnes states that his termination came soon after he was disciplined for wearing a T-shirt supporting the O.J. Simpson verdict and approximately three weeks after he had filed a Charge of Discrimination against Dana with the EEOC. Barnes alleges that his termination was in retaliation for his filing of the charge with the EEOC.
The Seventh Circuit, in Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640 (7th Cir. 2002), adopted a new standard for adjudicating retaliation claims brought under summary judgement. The Seventh Circuit stated:
[t]he plaintiff in a retaliation case should have two . . . distinct routes to obtaining/preventing summary judgement. One . . . is to present direct evidence that he engaged in a protected activity . . . and as a result suffered the adverse employment action of which he complains. If the evidence is uncontradicted, the plaintiff is entitled to summary judgment. If it is contradicted, the case must be tried unless the defendant presents unrebutted evidence that he would have taken the adverse employment action against the plaintiff even if he had had no retaliatory motive; in that event the defendant is entitled to summary judgement because he has shown that the plaintiff wasn't harmed by retaliation.
Id. at 644.
Barnes has offered no direct evidence that as a result of his filing the charge with the EEOC, Dana terminated him. The evidence offered, the timing of the termination in relationship to the filing of the charge, the O.J. Simpson T-shirt incident, and the severity of the adverse employment action for an improperly completed doctor's slip, is circumstantial. Therefore, this first method is unavailable to Barnes.
The Seventh Circuit continued stating:
[t]he second route to summary judgement . . requires the plaintiff to show that after filing the charge, only he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner. If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgement. Otherwise there must be a trial.
Id.
First, Barnes must establish a prima facie case of retaliation by showing that he (1) engaged in a statutorily protected activity, (2) he was subjected to an adverse employment action, (3) he was performing his job in a satisfactory manner, and (4) he was treated less favorably than any other similarly situated employee who did not engage in such protected activity. Id. It is undisputed that Barnes engaged in a statutorily protected activity when he filed a charge of discrimination with the EEOC on November 9, 1995. It is also undisputed that Barnes was subjected to an adverse employment action when he was terminated by Dana on December 5, 1995. However, Barnes must still satisfy prongs three and four to establish a prima facie case of retaliation.
To establish prong three, Barnes must show that he was performing his job satisfactorily, meeting the legitimate expectations of his employer. Id. However, Barnes has not presented any objective evidence whatsoever to suggest that he was performing according to Dana's expectations. In fact, Barnes's response brief focuses on Dana's alleged retaliatory motives. Because Barnes has not presented any evidence to show that he was performing his job to the satisfaction of Dana, he can not establish a prima facie case of retaliation.
Even if Barnes could have establish a prima facie case, Dana has come forward with "evidence of a noninvidious reason for the adverse action." Stone, 281 F.3d at 644. Barnes's extensive history of absenteeism which includes twelve (12) separate warnings from 1993 to 1995 culminating with the submission of an improperly filled out physician's statement on December 4, 1995. Barnes had received, prior to this event, numerous warnings and instructions about the requirements for physician's statements. Dana states that the submission of the improperly filled out physician's statement violated Barnes's third "Last Chance Agreement" and resulted in his termination. While it is true that only three to four weeks had elapsed between Barnes filing his charge with the EEOC and his termination by Dana, the "mere temporal proximity between the filing of the charge of discrimination and the action alleged to have been taken in retaliation for that filing will rarely be sufficient in and of itself to create a triable issue." Id. In fact, temporal proximity would not even be an issue if not for Barnes violating his yellow card warning. Dana did not just terminate Barnes a few weeks after his filing the charge with the EEOC without proffering a reason. If Barnes had not violated his yellow card warning, the EEOC charge investigation, in most likelihood, would have proceeded and come to some resolution. However, because Barnes, once again, violated the rules on absenteeism and on doctor's slips, Dana had no alternative but to terminate him on the same day that he presented the unacceptable doctor's slip. For the aforementioned reasons, summary judgment on Barnes's retaliation claim is granted.
CONCLUSION
Based on the foregoing, Dana's Motion for Summary Judgment is hereby GRANTED.