Gandy v. Gateway Foundation

Full title: KENNETH L. GANDY, Plaintiff, v. GATEWAY FOUNDATION, Defendant

Court: United States District Court, N.D. Illinois, Eastern Division

Date published: Feb 19, 1999

No. 97 C 2286 (N.D. Ill. Feb. 19, 1999)

Opinion

No. 97 C 2286

February 19, 1999

REPORT AND RECOMMENDATION

BUCKLO, Judge.

SIDNEY I. SCHENKIER, United States Magistrate Judge.

On December 5, 1996, defendant Gateway Foundation ("Gateway") demoted one of its employees, plaintiff Kenneth L. Gandy, and informed him that in connection with the demotion he would be receiving a reduction in pay of approximately five percent. The next day, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that his demotion and pay reduction were was based on his race (African-American). However, the pay reduction never actually went into effect because, several days later, plaintiff informed Gateway that he would not accept the demotion. On December 11, 1996, plaintiff resigned from Gateway.

In this lawsuit, plaintiff challenges only his demotion and announced reduction in pay (and not his separation from Gateway). Plaintiff asserts that his demotion and reduction in pay were racially discriminatory, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, as amended, and 42 U.S.C. § 1981. Plaintiff also alleges that these actions constituted discrimination on the basis of his age, in violation of the Age Discrimination In Employment Act, 29 U.S.C. § 623 ("ADEA"). Presently before the Court is Gateway's motion for summary judgment on all claims.¹ For the reasons set forth below, the Court respectfully recommends that the motion be granted.

1 The motion is before the Court pursuant to the referral by the District Court on May 5, 1997, which requested a "Report and Recommendation on any dispositive motion."

Plaintiff's race discrimination claim proceeds solely under the "indirect method" of proof set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). However, the undisputed material facts demonstrate that plaintiff cannot establish at least one of the necessary elements under McDonnell-Douglas for a prima facie case of race discrimination in his demotion and reduction in pay: that he was performing to Gateway's legitimate expectations. That alone is fatal is to plaintiff's race discrimination claim.

In addition, as to the demotion claim, plaintiff fails to offer any facts to establish another necessary element of a prima facie case: that Gateway treated non-African-American employees with the same record of poor job performance more favorably. Plaintiff has offered no facts to indicate that any Gateway employee, of whatever race, had a similar record of subpar performance but was not demoted. As to plaintiff's allegations about the reduction in pay that accompanied the demotion, plaintiff has pointed to one white employee who allegedly was demoted, but suffered no pay decrease. However, Gateway has offered a legitimate, nondiscriminatory reason for this differential treatment, as well evidence that another white employee with performance problems who was demoted also received a reduction in pay. Plaintiff has failed to rebut Gateway's legitimate, nondiscriminatory explanation for why his pay was reduced, which provides further support for the Court's recommendation that summary judgment on the Title VII claim be granted.

Plaintiff's Section 1981 claim also fails. Assuming that plaintiff's at-will relationship with Gateway was sufficient to trigger application of Section 1981, summary judgment is fully appropriate on the merits based on the same undisputed material facts that require summary judgment on the Title VII claim.

Finally, summary judgment should be granted on plaintiff's ADEA claim. At the threshold, that claim is procedurally barred because it asserts acts and a theory that were not part of — or like or related to — the race discrimination claim that was the sole basis of the charge presented to the EEOC. Summary judgment is appropriate on the merits as well, because plaintiff has offered no evidence sufficient to create a genuine fact issue as to (a) whether he was performing to Gateway's legitimate expectations, or (b) whether age played any consideration on Gateway's decision to demote plaintiff or to reduce his pay.

I.

The undisputed material facts described below are derived from the parties' Local General Rule 12 Statements of Material Facts and accompanying exhibits. Local Rule 12(M)(3) requires a party moving for summary judgment to file "a statement of material facts as to which the moving party contends there is no genuine issue," along with "specific references to affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth . . . "² Rule 12(N)(3)(a) requires the nonmoving party file a concise response to the movant's statement including, in the case of any disagreement, specific references to supporting evidentiary materials.³

2 Gateway's statement shall be cited as "Def's Facts ¶ ___."

3 Plaintiff's response shall be cited as "Pl.'s Facts ¶ ___."

Local Rule 12(M)(3)(b) authorizes the nonmoving party to submit a statement of "additional facts that require the denial of summary judgment, to which the moving party may submit a response.⁴ All properly supported material facts set forth in either parties' statement ( i.e., Def's. Facts or Pl.'s Add'l Facts) are deemed admitted unless properly controverted by the opposing party. Local Rule 12(M) and 12(N)(3)(b); see also Corder v. Lucent Technologies, Inc., 162 F.3d 924 (7th Cir. 1998); Flaherty v. Gas Research Inst., 31 F.3d 451, 453 (7th Cir. 1994); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994). In order to "properly controvert" a movant's fact statement, the nonmovant must cite to evidence; a mere denial of supported factual assertion is insufficient to create a genuine dispute. Flaherty, 31 F.3d at 453; see also Garrison v. Burke, 97-1499, Slip Op. at 3 (7th Cir., 1/14/99); Bragg v. Navistar Int'l. Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998) (denials that are supported only by "conclusory statements" of the opposing party insufficient to create a genuine dispute of material fact). This is true even when the conclusory denial is set forth in the trappings of an affidavit. See, e.g., Lujan v. National Wild Life Fed'n, 497 U.S. 871, 888 (1990) ("the object of [Rule 56] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit").

4 Plaintiff's statement of additional facts shall be cited as "Pl.'s Add'l Facts ¶ ______"; Gateway's response to Plaintiff's additional facts shall be cited as "Def.'s Reply Pl.'s Add'l Facts ¶ _______."

In this case, many of the facts asserted by Gateway are expressly admitted. Def.'s Facts ¶¶ 1-18; 20-46; 48-56; 58; 65-68; 72-76; 78; 82-85; 87; 90-96; 101; 103-104; 106; 108-109; 111-117. Other facts are admitted with qualifications and/or partial denials. See Def.'s Facts ¶¶ 19; 47; 69; 88; 89; 93; 97; 99; 107; 110. Some of the facts set forth in Gateway's Rule 12(M) statement are met only by plaintiff's flat, unsupported denial, or by merely conclusory assertions. See Def.'s Facts ¶¶ 56-57; 59-64; 70-71; 77; 79-81; 86; 102; 105. As explained above, because the purpose of the detailed fact statements is to identify whether there are genuine and material facts that require trial, "[a] party seeking to defeat a motion for summary judgment is required to `wheel out all its artillery to defeat it.'" Caisse Nationale de Credit v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). The Seventh Circuit recently has reaffirmed what is in any event plain from the language of Local Rule 12: upon failure to properly controvert the movant's factual assertions, "the court may deem the facts contained in the moving party's Rule 12(M) statement to be admitted." Garrison, Slip Op. at 3 ( citing Flaherty, 31 F.3d at 453) Thus, the Court has deemed the forgoing facts offered by Gateway admitted, because they are properly supported by citations to the evidentiary record, and plaintiff has failed to "properly controvert" them with the evidence.⁵ That said, the Court now turns to the undisputed material facts.

5 Plaintiff also objects to Paragraphs 19, 57, 79-81, 93, 102, and 110 of Gateway's Rule 12(M) statement on the ground that they improperly contain assertions of "ultimate fact." Plaintiff apparently reasons that labeling these assertions — all of which relate to the motivation for Gateway's actions — as "ultimate fact" will, ipso facto, preclude a determination of summary judgment by the Court.
Plaintiff misconstrues the role "ultimate fact" plays in the Court's determination on a motion for summary judgment. "Ultimate facts" (like mixed questions of fact and law) sit on the broad continuum between basic historical facts and principles of law: like facts, they may be derived by reasoning or inference from evidence, but, like issues of law, they will incorporate legal principles or policies that give them independent legal significance. E.g., Baumgartner v. U.S., 322 U.S. 665, 671 (1944). The Supreme Court has described an "ultimate fact" as the type of "factual" inquiry which involves a process that "implies the application of standards of law." Id. This Court need not answer the question of whether each of the foregoing assertions in Gateway's Rule 12(M) statement falls within the definition of "ultimate fact," because it has no bearing on whether plaintiff can survive a motion for summary judgment. If the ultimate facts rest near the "legal side of the continuum," then plaintiff's dispute about a legal point cannot preclude summary judgment. And, if the ultimate facts sit on the "fact" side of the continuum, then plaintiff's objection or bare denial cannot create a genuine fact dispute. In either event, a bare objection to an asserted fact as "ultimate fact" does not advance the summary judgment analysis.

A. The Parties .

Plaintiff is an African-American citizen of the United States, who was born on March 30, 1948 (Def.'s Facts ¶¶ 6-8). Defendant Gateway is a not-for-profit organization that seeks to provide education, skills and treatment opportunities necessary to help individuals seeking to overcome problems of substance abuse. Gateway offers a variety of programs, from detoxification to extended care residential treatment programs, all of which are based on a philosophy requiring responsibility, ethical behavior and mutual respect for clients and staff ( Id. ¶ 9).

Plaintiff was first employed with Gateway from April 1986 until July 1988; after a hiatus, he was employed again from August 1989 until he resigned on December 11, 1996 (Def.'s Facts ¶ 10). From November 1993 until January 1996, plaintiff worked at Gateway's Westside Adult Program, first as a Counselor II and then as a Clinical Supervisor ( Id. ¶¶ 14, 16). In January 1996, plaintiff transferred to the Youth Center's Westside Facility, where he worked as a Clinical Supervisor for the Youth Care Program from January 3 to December 5, 1996 ( Id. ¶¶ 17-18). On December 5, 1996, Gateway demoted plaintiff from Clinical Supervisor to Counselor II in the Youth Care Program; less than one week later, on December 11, 1996, plaintiff resigned his employment with Gateway ( Id. ¶ 19).

B. Gateway's Policies .

At all times during plaintiff's employment with Gateway, Gateway maintained an employee handbook that contained various written policies of Gateway (Def.'s Facts ¶ 22). Plaintiff received these policies, and signed forms acknowledging his understanding that the employee handbook "does not constitute an employment contract" ( Id. ¶ 23 and Ex. 11). Plaintiff admits that his employment with Gateway was "strictly at-will" ( id. ¶ 24), and that he "does not allege a contractual relationship with Gateway" ( Id. ¶ 117).

Gateway's handbook contained a section on "Staff Ethics," which sets forth a number of expectations that Gateway had of its employees that flow from the sensitive nature of its business. This Staff Ethics section required that employees (a) "deal openly and directly with other staff members," have "open communications on all issues concerning staff," and deal with any problems "openly and honestly;" (b) refrain from social/sexual relationships of any kind with clients, including former clients until at least one year after the client is discharged; (c) adhere to "a strict policy of confidentiality" with respect to client information; (d) ensure that "[c]ase records are never to leave the geographical area of the treatment Center, except when required by ancillary departments"; and (e) that staff members refrain from any client neglect or abuse (Def.'s Facts ¶ 25 and Ex.11, Pages 14-16).

Gateway's handbook also contained a section on attendance, which provided as follows:

"Each time an employee is absent or reports to work late, a hardship is created affecting Gateway's ability to service the needs of its clients, as well as seriously imposing on the other employees. Therefore, regular attendance is important and all employees are expected to be punctual in reporting to work.

In the cases of illness or emergency, staff are to notify their immediate supervisor of their absence or tardiness as soon as possible, but not later than one hour after the scheduled starting time. Failure to notify in a timely fashion can be grounds for disciplinary action, which may include termination.

Repeated occurrences of unscheduled absence may result in disciplinary action including possible dismissal, as could repeated occurrences of tardiness.

(Def.'s Facts ¶ 27 and Ex. 11, Page 10). Plaintiff expressly admits that under this attendance policy, an "unscheduled absence" is any "absence taken without advance notice to Gateway, regardless of the reason for the absence" ( Id. ¶ 28).⁶ Gateway also had a "progressive discipline policy, which stated that supervisors "are to address disciplinary matters promptly and consistently in view of all attainable facts" (Def.'s Facts Ex.11, Page 30). This policy provided for "gradations" of discipline, ranging from oral reprimand through discharge ( Id. at 30-31). However, as plaintiff expressly admits (Def.'s Facts ¶ 32), Gateway specifically stated that while this kind of progressive discipline "will frequently be followed, their [sic] are not mandatory and the employee may not rely on such gradations being followed" (Def.'s Facts Ex. 11, Page 30). The handbook specifically provided that "[i]n cases of serious violations this discipline [such as suspension or discharge] may be used without following any of the steps outlined above" ( Id. at 31). Gateway's handbook provided that any discipline could be appealed by an employee, through specified channels leading all the way up to and including the President of Gateway ( Id. at 31-32).

C. Plaintiff's Employment at the Westside Adult Program .

6 Plaintiff asserts that the attendance policy did not contain a "written" standard advising employees of the number of unscheduled absences which would trigger discipline (Pl.'s Add'l Facts ¶ 8). This statement is true, but incomplete. The uncontroverted deposition testimony — offered by that plaintiff himself — confirms that Gateway had an "unwritten rule" that four unscheduled absences in a three-month period would trigger discipline ( Id., Ex. 4, Pages 109-110). Plaintiff offers no evidence to indicate that he was unaware of this unwritten rule, or that the unwritten rule was communicated differently to him than to other employees.
Plaintiff also asserts that he was unaware that he could not use sick days without being reprimanded (Pl.'s Add'l Facts ¶ 50), thereby implying that he was unaware that taking a sick day would count as an "unscheduled absence." However, this assertion is controverted by Plaintiff's express admission that he was aware that under the attendance policy any absence taken without advance notice at Gateway would count as an unscheduled absence — regardless of the reason for the absence (Def.'s Facts ¶ 28).

Between September 1994 and the end of 1995, plaintiff was a clinical supervisor at the Westside Adult Program (Def.'s Facts ¶ 14). During 1995, a number of problems arose with plaintiff's job performance. In April 1995, plaintiff admitted to a sexual relationship with a former Gateway client that had taken place before expiration of the mandatory one-year waiting period, which resulted in plaintiff receiving a five-day suspension (Def.'s Facts ¶ 38). In that same month, a client reported that plaintiff had "talked down to him" at a group counseling session and had cursed him. Plaintiff admitted this conduct occurred, and received a written warning concerning the incident (Def.'s Facts ¶ 39). And, in May 1995, plaintiff received a written disciplinary warning as a result of his failure to timely complete client discharge files ( Id. ¶ 40).

D. Plaintiff's Transfer To The Youth Care Program .

In late 1995, Gateway eliminated the position of clinical supervisor in the Westside Adult Program (Def.'s Facts ¶ 41). John Courshon, Area Director of Gateway's Youth Programs, decided to place plaintiff in a vacant clinical supervisor position in the Youth Care Program; plaintiff expressly admits that this decision was motivated by Mr. Courshon's desire to avoid terminating a long-time employee ( Id. ¶ 42).

Plaintiff also expressly admits that this decision was not popular with a number of the staff members of the Youth Care Program. Plaintiff had filled in briefly in the Youth Care Program in August 1995, and several of the Youth Care staff program members who had worked with him were upset about his impending transfer (Def.'s Facts ¶ 43). During the time that plaintiff had filled the vacant Clinical Supervisor position he encountered several problems with staff members, and he failed to correctly handle files that were left for his review; in addition, plaintiff had no experience in dealing with adolescents ( Id. ¶ 44).

These concerns were brought to Mr. Courshon's attention by Hector Feliciano, the Assistant Director of Youth Care Programs and the individual to whom plaintiff would report (Def. Facts ¶¶ 44, 50). Mr. Courshon responded by telling Mr. Feliciano to accept the transfer and to see how plaintiff worked out in the new position ( Id. ¶ 44). Plaintiff expressly admits that Mr. Feliciano in turn informed the Youth Care Program staff that plaintiff would be transferred into the program despite their objections, and that Mr. Feliciano attempted "to accentuate plaintiff's positive qualities with the aggrieved staff members in order to make the transition as smooth as possible" ( Id. ¶ 45).⁷ Plaintiff also expressly admits that Gateway did not conceal from plaintiff the staff's objection to his transfer. At about the time of the transfer, plaintiff met with Mr. Feliciano and with Robert Spinelli, the Director of Youth Care Programs and Mr. Feliciano's direct supervisor (Def. Facts ¶¶ 48, 54). During this meeting, Mr. Spinelli and Mr. Feliciano told plaintiff that the Youth Care Program staff generally disapproved of his transfer, but that notwithstanding plaintiff's problems with the Youth Care Program staff and his previous performance problems in the Adult Program, he would be given a fresh opportunity to succeed (Def. Facts ¶ 48).

E. Plaintiff's Initial Performance In The Youth Care Program .

As a Clinical Supervisor in the Youth Care Program, plaintiff worked with one other clinical supervisor, Katie Sullivan, who had the same responsibilities but worked a different shift (Def.'s Facts ¶ 51). Mr. Feliciano conducted weekly supervision sessions with plaintiff and Ms. Sullivan as part of his supervisory responsibilities ( Id. ¶ 52). Plaintiff expressly admits that during these meetings, Mr. Feliciano, Ms. Sullivan and plaintiff "discussed issues and problems at the Youth Care Program, management styles, problems between the clinical supervisors, Gateway's policies and procedures and case reviews" ( Id. ¶ 52).⁸ In September 1996, plaintiff received a written evaluation for his performance as clinical supervisor (Pl.'s Facts Ex. 8). In this evaluation, Mr. Feliciano rated plaintiff's overall performance as "good" which was the mid-point on Gateway's evaluation scale between excellent and poor ( Id. Page 4). Plaintiff also received a three percent salary increase, raising his pay from $29,355 to $30,235.65 ( Id.).

In that evaluation, Mr. Feliciano expressed certain criticisms of plaintiff's performance. In particular, Mr. Feliciano stated that plaintiff needed "to work on his communication skills relative to staff members and be more conscious of the importance of rapport building;" familiarize himself better with Gateway's policies and procedures; and need to improve regarding "thoroughness when reviewing files" and in meeting deadlines (Pl.'s Facts Ex. 8, Pages 2-3). These criticisms reflected various performance problems that plaintiff had exhibited earlier in 1996 as a Clinical Supervisor in the Youth Care Program:

In May 1996, Mr. Feliciano received a complaint from a Gateway staff driver that plaintiff had treated him disrespectfully (Def. Facts ¶ 60);

In June 1996, Mr. Feliciano met to discuss with plaintiff and a Gateway therapist problems that plaintiff was having dealing with the therapist; after that meeting, Mr. Feliciano discussed with plaintiff his deficiencies in communications with staff members ( Id. ¶ 61);

In early September 1996, a counselor at Gateway complained to Mr. Feliciano that plaintiff was "talking down" to her in an unprofessional manner, a complaint that Mr. Feliciano brought to plaintiff's attention ( Id. ¶ 62); and

On six different occasions in May, June, August and September, internal audits by Gateway found deficiencies in a majority of the files that plaintiff was suppose to be maintaining (Def. Facts Ex. 19, Pages 1-2; Pl.'s Facts Ex. 11).

Plaintiff signed his evaluation, reflecting that he discussed it with Mr. Feliciano on September 24, 1996 (Pl.'s Facts Ex. 8, Page 4). Plaintiff made no written comments on the evaluation, and he does not assert that he disagreed with his rating as a "good employee" or with the specific criticisms identified in that evaluation ( Id.).⁹

F. Plaintiff's Job Performance After the September 1996 Evaluation .

Between September 24, 1996, when plaintiff received his evaluation, and December 5, 1996, when plaintiff was informed of his demotion, plaintiff exhibited a varied and extensive array of problems in his job performance. In mid-October, 1996, just a few weeks after the evaluation, a therapist at Gateway complained that plaintiff had conducted himself in an unprofessional manner (Def. Facts ¶ 63).

Shortly thereafter, at the end of October, a Gateway client submitted a complaint about the way in which plaintiff had treated him (Def. Facts ¶ 64 and Ex. 23). Mr. Spinelli and Mr. Feliciano both spoke with plaintiff about this complaint on November 5, 1996, at which time plaintiff denied that he had done anything wrong ( Id.). Nonetheless, based on an investigation conducted by Mr. Spinelli, Gateway concluded that the episode had occurred; Mr. Spinelli and Mr. Feliciano advised plaintiff that his conduct was unacceptable and that he needed to make efforts to improve ( Id.).

On November 6, 1996, during one of the regular meetings between Mr. Feliciano, plaintiff and Ms. Sullivan, plaintiff accused Ms. Sullivan of being a racist (Def. Facts ¶ 65). Ms. Sullivan complained about this accusation ( Id. and Ex. 20), which was made in Mr. Feliciano's presence (Def.'s Facts, Ex. 29). Moreover, Mr. Feliciano investigated the charge and found that it lacked any substantiating evidence (Def.'s Facts ¶ 65 and Ex. 20). The matter was then brought to Mr. Spinelli's attention, and was addressed during a November 19th meeting attended by plaintiff, Mr. Spinelli, and Mr. Feliciano (Def.'s Facts ¶ 65). At that meeting, plaintiff was given a copy of a written warning (Def.'s Facts, Ex. 20), which informed plaintiff that unless he showed "immediate improvement" in his dealings with co-workers and clients, Mr. Feliciano was "recommending demotion to a non-leadership position." ( Id.)

In approximately November 1996, Mr. Spinelli observed plaintiff in a staff meeting. Mr. Spinelli believed that plaintiff was misrepresenting statements that Mr. Spinelli had made during a previous staff meeting; plaintiff denies (without support) that he made any misrepresentations, but expressly admits that Mr. Spinelli orally warned him about misrepresenting Mr. Spinelli's statements (Def.'s Facts ¶ 69). In addition, Mr. Spinelli concluded from his personal observations that the plaintiff was not communicating with staff members in a professional and respectful manner; that plaintiff had lost the respect of his staff; that the staff was tuning him out; and that plaintiff's problems in dealing with his staff kept him from effectively supervising them. ( Id. ¶ 70). Although plaintiff conclusorily denies that he was having problems dealing with his staff (Pl.'s Facts ¶ 70), he offers no support for that denial, and he does not dispute that Mr. Spinelli in fact reached that conclusion.

These were not the only problems that surfaced in plaintiff's performance after the September 1996 evaluation:

On November 16, plaintiff violated Gateway policy and legal curfew limits by giving a client permission to return at 1:00 a.m in the morning rather than by 11:30 p.m. in the evening. Plaintiff expressly admits that this episode occurred, and that he was counseled about it (Def.'s Facts ¶¶ 67-68 and Ex. 24).

On November 25, plaintiff was given instructions to send to a probation office a facsimile of a discharge summary providing information about a particular client, for use in a progress hearing in court. However, Ms. Sullivan reported that plaintiff in fact had sent a discharge summary of the wrong client (which resulted in an improper disclosure of that client's confidential information), and he had lost the summary of the client that was needed in court (Def.'s Facts ¶ 71 and Ex. 28). Plaintiff seeks to deny this incident only with conclusory unsupported denials (Pl.'s Facts ¶ 71), but does not deny that this incident was raised with him prior to his demotion (Def.'s Facts ¶ 71, Ex. 1 Page 123).

On December 2, 1996, it was discovered that plaintiff had stored in his desk prescribed medication for a discharged client, in violation of Gateway's policies and accreditation guidelines that absolutely prohibited such conduct. Plaintiff expressly admits this episode occurred (Def.'s Facts ¶¶ 72, 73 and Ex. 25).

In addition, during October and November 1996, plaintiff began to exhibit attendance problems. Plaintiff expressly admits that he had unscheduled absences on October 10, 11, and 12, and that he was warned about these absences, which Gateway considered very important due to his leadership position (Def.'s Facts ¶ 74 and Ex. 21). Plaintiff further expressly admits that he then had two more unscheduled absences, on November 12 and 13 ( id.), and that this resulted in plaintiff receiving a written disciplinary warning notice on November 14. That warning notice indicated that continued absences could result in "possible termination from his position" (Def.'s Facts ¶ 76 and Ex. 23).¹⁰

In addition to these absences, plaintiff was late arriving to work on six separate occasions during November 1996 (Def.'s Facts ¶ 77 and Ex. 26). Plaintiff fails to offer any evidence to dispute that this occurred. Mr. Feliciano wrote plaintiff a memorandum concerning these tardinesses on December 7, which plaintiff admits he received on December 10 ( Id. at ¶ 78).

G. Plaintiff's Demotion .

In early December 1996, Mr. Feliciano recommended to Mr. Spinelli that plaintiff be demoted from his position as a Clinical Supervisor to the nonsupervisory position of Counselor II (Def.'s Facts ¶ 79). Plaintiff has offered no facts to dispute — and it is therefore admitted — that Mr. Feliciano's recommendation was based on plaintiff's continuing communication problems and problems in dealing with staff and clients; his attendance and tardiness problems; and the violations of Gateway policies related to faxing the wrong discharge summary and losing the right one, granting a client permission to stay out beyond curfew, and keeping a client's prescription medication in his desk ( Id.). Plaintiff also does not offer evidence to dispute — and thereby admits — that Mr. Spinelli made the decision to demote plaintiff, and that Mr. Spinelli believed the demotion was appropriate based on these matters that Mr. Feliciano brought to his attention and also on matters, described above, that Mr. Spinelli personally had observed ( Id. ¶ 80). In addition, Mr. Spinelli brought the impending demotion to the attention of Mr. Courshon, at whose direction plaintiff had been allowed to move into the Clinical Supervisor position in the Youth Care Program after the elimination of the supervisory position in the adult care program (Def.'s Facts ¶ 6, Ex. 6). Mr. Courshon concurred in the demotion decision ( Id.).

On December 5, 1996, plaintiff met with Mr. Feliciano, Mr. Spinelli and Ms. Sandra Broussard, an Employee Relations Specialist at Gateway (Def.'s Facts ¶¶ 34, 82). Plaintiff expressly admits that during this meeting, Ms. Broussard informed him that he was being demoted to a Counselor II position based on his attendance and performance problems, including his lack of professionalism and poor communication skills ( Id. ¶ 82).

Gateway also decided that upon assuming the Counselor II position, plaintiff's salary would be reduced by approximately five percent, from $30,235.65 to $28,500.00 (Def.'s Facts ¶¶ 82, 83 and Ex. 27). The reduction in salary was to take effect as of December 15, 1996 ( Id. ¶ 81). The sworn deposition testimony by several of Gateway's employees establishes that Gateway took a number of factors into consideration in making this reduction in salary, including the fact that plaintiff was being demoted for poor performance; the fact that plaintiff had a G.E.D. (and not an advanced degree), which did not meet the existing requirement for a counselor position; plaintiff's experience in counseling; and the salary structure of Gateway, including the fact that without a pay reduction plaintiff's salary would have been greater than that of Ms. Sullivan, who would become plaintiff's supervisor upon his demotion (Def.'s Facts ¶ 81). Plaintiff does not offer any evidence to dispute that Gateway considered these factors in deciding to reduce his salary.

H. Other Demoted Employees .

In 1995 and 1996, at least one — and perhaps two — other supervisory level employees at Gateway were demoted. In January 1995, Gateway demoted Ron Orlando, who is white, from his position as Center Director of the Chicago Outpatient South Facility to a lesser supervisory position in the Westside Youth Care Program. In connection with that demotion, Gateway reduced Mr. Orlando's compensation by approximately eight percent (from $42,450.00 to $39,000.00). This reduction in salary was based on the salary ranges of the position to which Mr. Orlando was demoted, his experience and qualifications, and the salary of Mr. Orlando's new supervisor (Def.'s Facts ¶ 114).

In January 1996, Peter Gubbe, a white employee, left his position as a Clinical Supervisor in the Youth Care Program, and moved to the position of a Counselor II in the same program (Def.'s Facts ¶¶ 99, 101). The parties quarrel about whether Mr. Gubbe "voluntarily" resigned (Gateway's version), or instead was demoted (plaintiff's version). The factual record does not permit the Court to resolve this difference of opinion on summary judgment; however, for purposes of this motion the Court will draw the inference that Mr. Gubbe was in fact demoted (as we will explain below, drawing this inference in plaintiff's favor does not create a fact dispute that defeats summary judgment).¹¹

As a Clinical Supervisor, Mr. Gubbe earned $28,500 per year; he retained that same salary when he moved the position as a Counselor II (Def.'s Facts ¶ 10, Ex. 7). At the time that Mr. Gubbe became a Counselor II and began reporting to plaintiff, his salary was less than the salary that plaintiff was receiving, which was $29,355.00 (Def.'s Facts ¶ 103; Pl.'s Facts, Ex. 8, Page 4). Gateway has stated Mr. Gubbe was allowed to retain his salary when moving to the Clinical Supervisory position because he had voluntarily resigned; because of his educational background (he had Master's degree); and because the pay structure developed at Gateway, including the fact that without a pay reduction Mr. Gubbe would still be making less than the person who would become his supervisor — the plaintiff (Def.'s Facts ¶ 102). The only one of these explanations that plaintiff offers any facts to dispute is that Gateway's decision not to reduce Mr. Gubbe's salary was based in part on the fact that he resigned (as explained above, there is a dispute about whether his movement to the new position was a resignation or demotion); plaintiff has offered no facts as to the other stated reasons that Mr. Gubbe's salary was not reduced, and thus he has failed to create any dispute about them.

I. Events Subsequent to the Demotion .

After being informed of his demotion on December 5, plaintiff was invited to take a personal day off on December 6 to consider the demotion (Def.'s Facts ¶ 83). Plaintiff used that personal day to file a charge of discrimination with the EEOC, alleging that the demotion and reduction in salary were racially discriminatory (Def.'s Facts ¶ 84 and Ex. 9). Plaintiff did not allege in the EEOC charge that age played a factor in his demotion or salary reduction.

On Friday, December 7, 1996, plaintiff called in sick. Gateway informed plaintiff that if his illness were to extend beyond December 10, he should apply for a leave of absence (Def.'s Facts ¶ 85). Plaintiff returned to Gateway on December 10, and in his deposition he admits that on December 7 he had been "quite upset" but not that he had been sick ( Id. ¶ 86). On December 10, plaintiff was informed that the Counselor II position was the only position available for him at Gateway at that time ( Id. ¶ 90). When Mr. Courshon learned that plaintiff refused to accept the demotion, he set up a meeting to discuss the matter with plaintiff ( Id. ¶ 91). Mr. Courshon discussed with plaintiff his performance problems, the reasons for the demotion, and his hope that plaintiff would accept the Counselor II position ( Id.). However, plaintiff expressly admits that he indicated he would not accept the demotion or perform his duties as a counselor and at that time resigned from Gateway ( Id. ¶ 92).

Had plaintiff accepted the demotion, he would have reported to Ms. Sullivan. Plaintiff seeks to dispute Gateway's assertions that Ms. Sullivan performed well as a Clinical Supervisor in the Youth Program and did not exhibit the kind of performance and attendance problems observed in plaintiff (Def.'s Facts ¶ 105; Pl.'s Facts ¶ 105). However, the only materials that plaintiff offers to dispute Gateway's characterization of Ms. Sullivan's performance are three of Ms. Sullivan's annual evaluations (Pl.'s Facts, Exs. 5-7). The first two of those evaluations (Exs. 5-6) concern Ms. Sullivan's performance in 1994 and 1995 as a Counselor rather than an Clinical Supervisor, and thus are of little significance; but the Court notes that most recent of those two evaluations, from 1995, rated Ms. Sullivan as very good or excellent in every category (Ex. 6). The one evaluation of Ms. Sullivan's performance as a Clinical Supervisor, for the period from February 1996 to February 1997, rated her as very good or excellent in every category and gave her an overall rating of "excellent" ( Id., Ex. 7). Thus, plaintiff has offered no evidence to dispute the fact that Gateway rated Ms. Sullivan's performance as much superior to that of plaintiff; to the contrary, the evidence plaintiff offers only confirms Gateway's factual assertion.

After plaintiff's demotion, Gateway hired Ms. Audrey Thomas, an African-American woman, to fill the Clinical Supervisor spot vacated by plaintiff's demotion (Def's. Facts ¶ 111-112). Ms. Thomas' date of birth is March 1, 1951 ( Id. ¶ 113), which makes her approximately three years younger than plaintiff ( Id. ¶ 8).

7 Certain unidentified staff members prepared an unsigned memorandum in December 1995 outlining concerns about Plaintiff's transfer (Def. Facts ¶ 47 and Ex. 18). Gateway states that neither Mr. Feliciano, Mr. Courshon nor others in management saw nor had knowledge of the memorandum prior to this lawsuit, an assertion that plaintiff offers no factual support to contest (Def. Facts ¶ 47; Pl.'s Facts ¶ 47). Even had plaintiff properly controverted Gateway's assertion that Mr. Courshon or others in management received the memorandum, it would not be of any moment, as the concerns set forth in the memorandum are among the same concerns that Mr. Feliciano admittedly communicated to Mr. Courshon (Def. Facts ¶ 44).

8 Plaintiff asserts that Ms. Sullivan was invited to comment on his work performance, but that he was never invited to comment on her performance (Pl.'s Add'l Facts ¶¶ 55, 57). However, this assertion is contrary to Plaintiff's express admission about what went on during the supervisory meetings attended by Mr. Feliciano, plaintiff and Ms. Sullivan. Moreover, the only support offered by plaintiff for his assertion that he was never invited to comment on Ms. Sullivan's performance is his own conclusory assertion, which is not enough to create a genuine dispute of fact.

9 The parties spar over whether, in light of all this, plaintiff's September 1996 evaluation was really "good" and whether the 3 percent salary increase was as a result of that "good" evaluation — plaintiff says "yes" to both questions, and Gateway says "not really" ( See Pl.'s Add'l Facts ¶¶ 13-14; Def.'s Reply to Pl.'s Add'l Facts ¶¶ 13-14). As to whether the review was good, the Court finds that the dispute over this label is less significant than the underlying facts which are reflected in the evaluation, as to which — as set forth above — there is no genuine dispute. As to whether the salary increase was the result of this evaluation, Gateway asserts that this is not the case because Mr. Feliciano "recommended everybody for a salary increase" (Def.'s Reply to Pl.'s Add'l Facts ¶ 14). Gateway offers no evidence as to whether other people received a greater or lesser salary increase based on better or worse evaluations. In any event, the Court does not consider these disputes material to the outcome of this motion.

10 Plaintiff asserts that he was unaware that he could not use sick days without being reprimanded, and that the defendant does not dispute that the absences in October and November were due to "legitimate medical problems" (Pl.'s Add'l Facts ¶¶ 50-51). The first point is contradicted by plaintiff's express admission that under Gateway's attendance policy, an unscheduled absence is any absence without advance notice, regardless of the reason (Def.'s Facts ¶ 28). As to the latter point, the record citation provided by plaintiff does not support the conclusion that Gateway fails to contest that his absences were for legitimate medical reasons; however, that point is not material to the outcome of the motion.

11 Gateway has offered a declaration from Mr. Gubbe (dated May 13, 1998), in which Mr. Gubbe states — under penalty of perjury — that he voluntarily resigned, was not involuntarily demoted, and that nobody at Gateway forced him to resign (Def.'s Facts, Ex. 7 ¶¶ 7-9). Mr. Gubbe's declaration contains as an attachment his letter of resignation. In opposing summary judgment, plaintiff offers an affidavit of his attorney, who states that on April 10, 1998, prior to the time that Mr. Gubbe provided the declaration for Gateway, Mr. Gubbe told him that Mr. Gubbe had written a letter of resignation only because he was told he would be demoted otherwise; that this would effectively eliminate any opportunity for him to be promoted in the future; and that he did not voluntarily initiate discussions to take a demotion (Pl.'s Facts, Ex. 3, ¶¶ 5(e)-(g)). Plaintiff's counsel submitted the affidavit of the conversation with Mr. Gubbe because when she previously presided in the case, then-Magistrate Judge Pallmeyer denied Plaintiff's motion to take Mr. Gubbe's deposition after the close of discovery, but indicated that if the lawyer's affidavit created a material fact dispute the Court would enter and continue the motion for summary judgment to permit that deposition. However, the dispute concerning whether Mr. Gubbe resigned or was demoted involuntarily does not affect the outcome of the motion.

II.

Summary judgment is proper if the record shows 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. ("Rule") 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50; Flipside Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909 (1988).

In deciding a motion for summary judgment, the Court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. The Court must view all evidence in the light most favorable to the nonmoving party, Valley Liquors, Inc. v. Rendfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977 (1987), and draw all reasonable inferences in the nonmovant's favor. Santigo v. Lane, 894 F.2d 218, 221 (7th Cir. 1990). Credibility determinations, weighing evidence and drawing reasonable inferences are jury functions, not those of a judge when deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255. However, mere conclusory assertions, unsupported by specific facts, are not sufficient to defeat a proper motion for summary judgment. Bragg, 164 F.3d at 377 (summary judgment affirmed; "conclusory statements that the testing conditions were less favorable" to plaintiff than to male co-workers was insufficient to "affirmatively demonstrate [ ] that a genuine issue of fact exists" on the issue of disparate treatment); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir. 1985) ("conclusory statements in affidavits opposing a motion for summary judgment are not sufficient to raise a genuine issue of material fact").

Plaintiff asks that the standards for summary judgment be applied "with added rigor" because this is an employment discrimination case (Pl's. Mem. 1). To be sure, there is language in some Seventh Circuit cases stating that because intent and credibility are often crucial issues in employment cases, the summary judgment standards should be "applied with added rigor." Miller v. Borden, Inc., No. 98-2814, Slip Op. at 5 (7th Cir., Feb. 8, 1999). However, the Seventh Circuit also has emphasized that "there is not a separate rule of civil procedure governing summary judgment in employment discrimination cases." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997) ("summary judgment is hardly unknown, or for that matter rare, in employment discrimination cases, . . ."). This Court takes all of this to mean that in employment cases, as in any other case in which summary judgment is sought, the mission of the Court is to take care "not to grant summary judgment if there is an issue of material fact that is genuinely contestable." Id. However, this does not change the fact that in employment cases, as in other cases, "a party needs more than a scintilla of evidence to defeat . . . summary judgment." Adusumilli v. City of Chicago, 164 F.3d 353, 360 (7th Cir. 1998) ( quoting Senner v. North Central Technical College, 113 F.3d 750, 757 (7th Cir. 1997)); see also Miller, id. (summary judgment "will not be defeated simply because motive or intent are involved"). With these principles in mind, we address in turn plaintiff's claims under Title VII, Section 1981 and the ADEA.

III.

In assessing Gateway's summary judgment motion, the Court must "view the evidence presented through the prism of the substantive evidentiary burden." Liberty Lobby, 477 U.S. at 254. Plaintiff here does not seek to defeat summary judgment by offering "direct" evidence that Gateway had a discriminatory motive in demoting him and reducing his salary (Pl.'s Mem. 2), but instead relies on his ability to establish the four elements of a prima facie case of race discrimination under the burden-shifting framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) (Pl.'s Mem. 2).

Under McDonnell-Douglas, at the threshold a plaintiff must offer evidence that (1) he is a member of a protected class; (2) that his job performance met his employer's legitimate expectations; (3) that he suffered an adverse employment action; and (4) that the employer treated similarly-situated employees outside the protected class more favorably. Oates v. Discovery Zone, 116 F.3d 1161, 1171 (7th Cir. 1997). If a plaintiff establishes a prima facie case under McDonnell Douglas, the employer then must produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Wolf v. Buss (America), Inc., 77 F.3d 914, 919 (7th Cir. 1996). If the employer offers evidence of a legitimate discriminatory reason, the burden then is on the employee to show, by a preponderance of evidence, that the stated reasons are pretextual: that is, "a lie, specifically a phony reason for some action." Id. Pretext may be shown by evidence that the proffered reasons are factually baseless; that they were not the actual motivation for the adverse personnel action; or that they were an insufficient basis to motivate the adverse action. Id.

However, if a plaintiff fails to offer evidence sufficient to establish each element of a prima facie case of discrimination, then the Court has no occasion even to reach the pretext stage of the McDonnell-Douglas analysis. In Coco v. Elmwood Care, Inc., 128 F.3d 1177 (7th Cir. 1997), the Seventh Circuit affirmed the grant of summary judgment in favor of an employer where the undisputed facts demonstrated that the plaintiff was not performing to the employer's legitimate expectations at the time of his termination. The Court found that in light of that evidence, "the question of the reasons for his discharge does not arise." Id. at 1180. As the Seventh Circuit explained ( id. at 1179):

The [ McDonnell-Douglas] formula is best understood as derived from a judgment about what evidence would be sufficient to persuade a rational fact-finder that the defendant had discriminated against the plaintiff. The judgment is that if the non-invidious reason offered by the defendant is not credible, the fact-finder can reasonably, though he need not, infer that the real reason was a discriminatory one. . . . This judgment would not make sense without imposing certain preconditions. The most obvious is that the plaintiff be a member of a group protected by the antidiscrimination law in question. . . .

* * *

Less obvious, but still important is that the plaintiff have been performing up the defendant's expectations. If he was not, the inference that he would not have been fired had he not been a member of a protected group is very weak — so weak that the fact-finder should not be allowed to speculate on the motive for the termination if all the plaintiff can produce by way of evidence is that he is a member of a protected group and was replaced by someone from another group. . . .

A.

Applying the teachings of the Seventh Circuit in Coco, plaintiff's claim in this case cannot survive summary judgment because, at the threshold, the undisputed facts show that he was not meeting Gateway's legitimate performance expectations at the time of the demotion. The fact that plaintiff received a middle-of-the-road rating of "good" in his September 1996 evaluation was not an unqualified endorsement of his performance. Indeed, there is substantial evidence of record — none of it properly controverted by plaintiff — that there were some questions about plaintiff's job performance as a Clinical Supervisor even as September 1996. More significantly, the two and one-half months after that evaluation, plaintiff's job performance problems dramatically intensified: (a) there were several complaints by clients and staff about plaintiff's treatment of them; (b) there was an unsubstantiated charge made by plaintiff that his fellow supervisor was a racist; (c) there were written warnings for unscheduled absences (five in a 33-day period) and tardiness (six in a one-month period); and (d) there were three instances of breaches of Gateway policy and basic good judgment (allowing an underage client to violate the curfew imposed both by Gateway and by law; keeping a client's prescription medication in his desk; and failing to send a client's discharge summary to a probation officer who needed it for a court appearance, and instead send another client's summary, thereby breaching the confidentiality of that latter client's information).

Plaintiff has offered no evidence to dispute that this litany of performance problems occurred. It is difficult to see how plaintiff can argue with a straight face that this track record of poor performance over a two-and-one-half month period met Gateway's legitimate expectations. Plaintiff struggles to do so, but the arguments he offers fail to create a material and genuine fact dispute that would justify a trial.

First, plaintiff argues that the fact he received a "good" performance evaluation September 1996, despite some problems that had surfaced earlier in the year, shows that he was in fact performing to Gateway's legitimate expectations (Pl's. Mem. 5). If plaintiff had no substantial performance or attendance problems between the September 1996 "good" evaluation and the demotion on December 5, 1996, plaintiff's point might have some force. However, whether plaintiff may have been meeting Gateway's legitimate expectations as of September 1996 does not answer the question of whether he was still doing so as of December 5, 1996, the time of his demotion — and that, of course, is the relevant time to consider. Leffel v. Valley Financial Services, 113 F.3d 787, 795 (7th Cir. 1997) (summary judgment affirmed; satisfactory reviews received by plaintiff as of December 1992 "do no call into question the criticisms that culminated in her discharge" in April 1993 in light of intervening events and the fact that plaintiff's prior evaluation was not unqualifiedly positive); see also Grohs v. Gold Bond Bldg. Prods., 859 F.2d 1283, 1287 (7th Cir. 1988) ("The fact that an individual may have been qualified in the past does not mean that he is qualified at a later time"). The undisputed facts show that plaintiff was not meeting Gateway's legitimate employment expectations based on his conduct subsequent to the September 1996 evaluation.¹²

Second, plaintiff contends that three of the incidents Gateway relies upon to defend his demotion occurred after the demotion, and thus these incidents could not have affected Gateway's view of his performance (Pl. Mem. 6). At the threshold, plaintiff relies on the list of events prepared by Mr. Feliciano at Ms. Broussard's request (Def.'s Facts, Ex. 19), which does not purport to be a statement for the reasons for the demotion ( see note 12, supra). Moreover, two of the items plaintiff refers to on that list are his record of tardiness in the month of November and the discovery that he had violated Gateway policy by storing a former client's prescription medication in his desk: both of which occurred prior to plaintiff's demotion. Plaintiff has offered no evidence that Gateway did not consider — and was not entitled to consider — those events in determining whether he should be demoted.

Third, plaintiff suggests that Gateway's expectations concerning attendance and tardiness were not legitimate because they were "standardless," and did not sufficiently inform plaintiff as to how many unscheduled absences or how many tardinesses would be tolerated before Gateway took action (Pl. Mem. 7). However, an employer's expectations are "legitimate," as that term is used in the McDonnell Douglas framework, if they are simply bonafide, Coco, 128 F.3d at 1179, i.e., if that is what the employer really demanded. If the employer's expectations are bonafide, then it is not the province of the Court to determine whether the expectations are wise, or enlightened or even fair, "for it is not business of a court in a discrimination case to decide whether an employer demands `too much of his workers.'" Id.

Here, plaintiff has offered no evidence to rebut the fact that Gateway made clear that it would not tolerate too many unscheduled absences (a proposition which is right in the employee handbook that plaintiff acknowledged receiving); that the unwritten rule was that Gateway became concerned if there were more than four unscheduled absences in a three-month period; that plaintiff had three unscheduled absences within a three-day period in October alone, followed by two more unscheduled absences in November; that these unscheduled absences occasioned a written warning from Gateway, indicating that continued unscheduled absences could result in "possible termination from his position" (Def.'s Facts, Ex. 21); and that in the month of November, plaintiff had six episodes of tardiness. Plaintiff has failed to offer evidence sufficient to create a genuine dispute that he failed to meet Gateway's legitimate expectations regarding attendance.¹³

Fourth, plaintiff suggests that four of the incidents relied on by Gateway for his demotion should be disregarded because the source of them was Ms. Sullivan and, according to plaintiff, Ms. Sullivan "has a racial bias toward plaintiff" (Pl. Mem. 6 and Pl.'s Add'l Facts ¶ 36). The parties, of course, disagree about whether Ms. Sullivan had any racial bias toward plaintiff ( compare Pl.'s Add'l Facts ¶ 45 and Def.'s Reply to Pl.'s Add'l Facts ¶ 45). The Court cannot resolve this dispute on summary judgment, but we need not do so because, even assuming Ms. Sullivan had a racial bias, she was not the decision maker.¹⁴ Mr. Feliciano made the recommendation to Mr. Spinelli, who made the final demotion decision after discussing it with Mr. Courshon — the individual who originally championed plaintiff's transfer into the Clinical Supervisory position, despite objections from staff members at the Youth Care facility. And, there is no allegation that Messrs. Feliciano, Spinelli or Courshon had any racial bias against plaintiff.

The only way that any alleged racial animus by Ms. Sullivan could be attributed to Mr. Spinelli is if Ms. Sullivan influenced the demotion decision by feeding Mr. Feliciano false information about plaintiff, which Mr. Spinelli then relied upon. Wallace v. SMC Pnuematics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1977). Plaintiff has offered no evidence to support such an allegation:

(1) Plaintiff points to a complaint by Ms. Sullivan about recordkeeping by the plaintiff in October 1996 (Pl.'s Facts Ex. 13). But this observation was not unique, as internal audits by Gateway found on numerous occasions serious problems with plaintiff's recordkeeping;

(2) Plaintiff points to the episode concerning plaintiff sending the wrong client summary to a probation officer, and losing the summary for the client whose information he was suppose to supply to the probation officer (Pl.'s Facts, Ex. 14). But plaintiff has offered absolutely no evidence to dispute that this incident occurred as Ms. Sullivan related it;

(3) Plaintiff points to the episode where plaintiff broke Gateway's rules by keeping a client's medication in his desk (Pl.'s Facts, Ex. 15). However, plaintiff has expressly admitted that this in fact occurred; and

(4) Plaintiff identifies Ms. Sullivan's complaint that he accused her of being a racist. However, Mr. Feliciano was present when this episode occurred and personally observed it.

Moreover, the record demonstrates that Mr. Spinelli, the ultimate decision maker, and Mr. Feliciano each dealt with plaintiff personally about a variety of the performance problems and thus had a sufficient basis to draw their own independent conclusions about whether plaintiff should remain in his supervisory position. Plaintiff has offered no evidence from which a jury reasonably could conclude that plaintiff was in fact meeting Gateway's legitimate expectations, but that Ms. Sullivan "snookered" Mr. Feliciano and Mr. Spinelli into thinking otherwise.

In sum, plaintiff has failed to offer sufficient evidence to raise a genuine issue of disputed fact concerning the adequacy of his job performance between the September 1996 evaluation and his demotion in early December 1996. To the contrary, the record is replete with substantial evidence that plaintiff's performance was seriously inadequate. For this reason alone, Gateway is entitled to summary judgment on plaintiff's Title VII claim.

B.

12 Part of Plaintiff's argument on this score is based on a misreading of a December 23, 1996 memorandum prepared by Mr. Feliciano (Def.'s Facts, Ex. 19). Plaintiff seeks to characterize this memorandum as detailing the specific reasons for Plaintiff's demotion. However, the sworn testimony — which plaintiff does not controvert with any evidence — is that this memorandum was prepared by at the request of Ms. Broussard, that in this memorandum she asked Mr. Feliciano to provide her with a list "of some of the issues for the last 12 months surrounding Mr. Gandy," and that she requested this list for the purpose of assisting her in responding to Plaintiff's EEOC charge (Def.'s Facts ¶ 58 and Ex. 4, Pages 110-13). There is no evidence that this memorandum was ever intended to be, or was ever relied on as, a statement of the reasons for Plaintiff's demotion.

13 Moreover, the Court notes that even if the attendance policy were "standardless," that alone does not render it discriminatory. Plaintiff has offered no evidence that the attendance policy was applied to him differently than to non-African American (or younger) employees. Likewise, plaintiff cannot support a prima facie case by evidence of any future Gateway to follow progressive discipline. The employee handbook plainly states that Gateway did not warrant that progressive discipline would invariably be followed (Def's. Facts, Ex. 11, Pages 30-31), and plaintiff has offered no evidence of racial bias in the way that Gateway applied its disciplinary policy

14 The sole source of plaintiff's allegation on this score is his attorney's affidavit reciting that Mr. Gubbe told him during a telephone interview that Ms. Sullivan "made negative racial statements about plaintiff in the presence of Mr. Gubbe, Hector Feliciano and plaintiff Spinelli" (Pl. Facts ¶ 5(b), Ex. 3). This statement provides no information about when these statements occurred, or their content. Even if Ms. Sullivan had been the decision maker, this kind of vague evidence of "biased statements" would be of dubious significance. Smith v. Firestone Tire Rubber Co., 875 F.2d 1325, 1330 (7th Cir. 1989) (stray remarks, "when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when the statements are made by the decision maker in issue"). Plaintiff's evidence is of even less significance since Ms. Sullivan was not the decision maker.

This is not the only element of the prima facie case required by McDonnell Douglas that plaintiff has failed to satisfy. Plaintiff also has failed to show that there were similarly situated employees outside the protected class (here, African-American) who exhibited similarly poor job performance but were not demoted. The plaintiff has offered no evidence that Gateway suffered the same kind of unsatisfactory job performance exhibited by plaintiff from any other employee without demoting them — or worse.

Plaintiff attempts to point to two individuals, Mr. Gubbe and Ms. Sullivan, whom he claims were the non-African American employees treated more favorably than he was treated. However, as to Ms. Sullivan, the very employee evaluations that plaintiff has submitted on summary judgment show that Ms. Sullivan was rated as an excellent Clinical Supervisor (Pl.'s Facts, Ex. 7), which stands in stark contrast to the many performance problems exhibited by plaintiff. Thus, plaintiff has failed to show that he and Ms. Sullivan were similarly situated ( i.e., that they were both performing their jobs in a equally competent manner).

As for Mr. Gubbe, the Court has accepted, for purposes of summary judgment, plaintiff's assertion that he was demoted and did not voluntarily resign. The record does not identify the precise nature of Mr. Gubbe's performance problems, but plaintiff has certainly offered no evidence that they in any way approached the quantity and severity of performance problems plaintiff exhibited. And yet, according to plaintiff, Mr. Gubbe was demoted — just as plaintiff was demoted. While plaintiff and Mr. Gubbe may have been similarly situated (in that they both exhibited problems in their performances as Clinical Supervisor), neither one of them remained in the Clinical Supervisor position. They both were demoted. Thus, plaintiff cannot argue that Mr. Gubbe was treated more favorably in that his poor performance was tolerated, while plaintiff's poor performance was not.

There is one respect in which plaintiff and Mr. Gubbe were treated differently: not in the demotion, but in the salary consequence that Gateway attached to the demotion. In Mr. Gubbe's situation, he was allowed to remain at the same salary ($28,500). Plaintiff — had he not resigned rather than assuming the position of a Counselor II — would have experienced approximately a five percent salary decrease (from $30,235.65 to $28,500). If plaintiff had been able to make out all elements of a prima facie case (including that he met the employer's legitimate performance expectations), Gateway would have been required to offer evidence of a legitimate, nondiscriminatory reason for this differential salary treatment.¹⁵ Gateway has offered several reasons, two of which, in particular, plaintiff has failed to controvert in any way: (1) that plaintiff's performance was worse than Mr. Gubbe's, and (2) that, unlike the case with Mr. Gubbe, a failure to reduce plaintiff's salary would have resulted in a situation that Gateway deemed undesirable — plaintiff, who was demoted for performance problems, would be making more money than a Clinical Supervisor who was exhibiting excellent performance.

Plaintiff has raised a fact question about at least one of Gateway's proffered explanations, that is, that Gateway did not reduce Mr. Gubbe's salary because he resigned and was not demoted. However, this does not aid plaintiff, because the law requires that plaintiff "raise an issue of fact regarding each of the reasons" proffered for the differential salary treatment or suffer summary judgment. Wolf, 77 F.3d at 920. Plaintiff seeks to rely on a limited exception to this rule, which recognizes that where a series of proffered explanations are so intertwined, or the pretextual character of one them so fishy and suspicious," a plaintiff can withstand summary judgment, even if he fails to specifically rebut the others. Id. However, in this case, the one explanation as to which plaintiff has raised a dispute (that Mr. Gubbe was demoted and did not voluntarily resign) is not intertwined with other explanations: in particular, the explanation that a reduction in salary was necessary in plaintiff's case, but not in Mr. Gubbe's case, so that he would not be making more than his supervisor. See, e.g., Ragland v. Rock-Ten Co., 955 F. Supp. 1009, 1016 (N.D. Ill. 1997).

Accordingly, even had plaintiff offered facts to show that he had performed to Gateway's legitimate expectations, Gateway would be entitled to summary judgment on the Title VII claim for the additional reasons that (a) with respect to his demotion, plaintiff failed to show that any similarly situated employee was treated more favorably, and (b) with respect to the reduction in salary, plaintiff has failed to rebut Gateway's articulation of legitimate nondiscriminatory reasons for that action.

15 Gateway argues that the Court should disregard that it had decided to impose a salary decrease, because plaintiff resigned before the salary decrease took effect and thus he never actually experienced a reduction in pay. The Court disagrees. If plaintiff had made out all other elements for a prima facie case, the fact that Gateway intended to treat plaintiff differently than Mr. Gubbe for salary purposes would constitute less favorable treatment, and it thus would trigger Gateway's obligation to offer a legitimate, nondiscriminatory reason for the distinction.

IV.

Plaintiff asserts a Section 1981 claim for the same alleged race discrimination that is the basis for his Title VII claim. Gateway seeks summary judgment on the Section 1981 claim, based on two arguments: (a) at the threshold, the claim fails because there was no "contractual relationship" between Gateway and plaintiff, which is a necessary predicate for a Section 1981 action, and (b) in any event, the same factors that require summary judgment on the Title VII claim require it for the Section 1981 claim as well. The fact that plaintiff offers no response whatsoever to these points in his memorandum opposing summary judgment probably says all that is necessary about the lack of viability of his Section 1981 claim. Compare Duncan v. State of Wisconsin Department of Health and Family Services, No. 97-2198, Slip Op. at 7 (7th Cir., Feb. 3, 1999) (noting that appellant's "failure to cite relevant precedent betrays an inability" to show the merit of one of his claims on appeal). Nonetheless, the Court will address each of Gateway's arguments briefly.

"Section 1981 bars all racial discrimination with respect to making and enforcing contracts." Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1034 (7th Cir. 1998). Thus, "[i]n order to bring a Section 1981 claim there must at least be a contract." Id. In Gonzalez, the Court identified, but did not resolve, the question of "whether employment at-will provides a sufficient contractual relationship to support Section 1981 claims." Id. The courts that have resolved the question are split on the answer. The only appeals court decision to address the question, Fadeyi v. Planned Parenthood Association of Lubbock, Inc., 160 F.3d 1048 (5th Cir. 1998), has held that an at-will relationship could support a Section 1981 claim, as have several district courts. Lane v. Ogden Entertainment, Inc., 13 F. Supp.2d 1261, 1272 (M.D. Ala. 1998); Larmore v. RCP/JAS, Inc., 1998 W.L. 372647, *2 (E.D. Pa. 1998); Baker v. American Juice, Inc., 870 F. Supp. 878, 883 (N.D. Ind. 1994); Harris v. New York Times, 1993 WL 42773 (S.D. N Y 1993). On the other hand, a number of other district courts have held that an at-will relationship is insufficient to support a Section 1981 claim. Hawkins v. Pepsi Co., Inc., 10 F. Supp.2d 548, 554 (M.D. N.C. 1998); Moorer v. Grumman Aerospace Corp., 964 F. Supp. 665, 675 (E.D. N.Y. 1997), aff'd., 1998 WL 640438 (2d Cir. 1998); Spriggs v. Diamond Auto Glass, 1997 WL 880756, *1 (D. Md. 1997); Askew v. May Merchandising Corp., 1991 WL 24390, *6 (S.D. N.Y. 1991).

In this case, it is conceded that plaintiff had an at-will employment relationship with Gateway (Def.'s Facts ¶ 24). However, the Seventh Circuit has recognized that under Illinois law, "[a] contract for employment at-will may end abruptly but it is a real and continuing contract nonetheless, not a series of contracts each day — or a minute — long." Gonzalez, 133 F.3d at 1034, (quoting McKnight v. General Motors Corp., 908 F.2d 104, 109 (7th Cir. 1990)). Although the at-will employee does not enjoy an agreement that his or her tenure will exist for a specific term, the employment relationship "is not a state of nature but a continuing contractual relation." McKnight, 908 F.2d at 109. This suggests that, at least under Illinois law, an at-will relationship would be sufficient to support a Section 1981 claim attacking a demotion and reduction in pay.

This interpretation is consistent with Congress' decision to amend Section 1981 to override Patterson v. McLean Credit Union, 491 U.S. 164 (1989), in which the Supreme Court held that the prior version of Section 1981 did not prohibit discrimination after the initial formation of the employment contract. The committee report specifically noted that in the context of employment discrimination, the post- Patterson amended version of Section 1981 would extend to, among other things, "claims of harassment, discharge, demotion, promotion, transfer, retaliation and hiring." See H.R. 102-40 (II) at 37, quoted in Gonzalez, 133 F.3d at 1304 (emphasis added). Moreover, in Fadeyi, the Fifth Circuit identified a common sense policy reason in support of this interpretation: "[t]o hold that at-will employees have no right of action under § 1981 would effectively eviscerate the very protection that Congress expressly intended to install for minority employees, especially those who, by virtue of working for small businesses, are not protected by Title VII." 160 F.3d at 1050.

Accordingly, were it necessary to the decision of this motion, the Court would be inclined to recognize that an at-will relationship can provide the basis for a Section 1981 claim. However, in this case, as in Gonzalez, it is unnecessary to reach that issue. The same standards governing liability under Title VII apply to Section 1981. Gonzalez, 133 F.3d at 1035. Accordingly, the foregoing analysis explaining why summary judgment must be awarded to Gateway on plaintiff's Title VII claim applies with equal force to plaintiff's Section 1981 claim.¹⁶

16 In addition, while the parties concede that plaintiff had an at-will relationship, they also concede that "Plaintiff does not allege a contractual relationship with Gateway in his Complaint in this action" (Def.'s Facts ¶ 117). Thus, on this basis as well, the Court could grant summary judgment for Gateway on plaintiff's 1981 claim. See Blumenthal v. Murray, 995 F. Supp. 831, 835 (N.D. Ill. 1998) (Section 1981 claim dismissed "because there is no specific allegation of a contractual relationship in the complaint").

V.

Finally, the Court turns to plaintiff's claim that his demotion and reduction in salary were the product of age discrimination. Once again, Gateway raises both a procedural and substantive challenge to this claim. Procedurally, Gateway argues that plaintiff's claim is barred because it was not raised in the EEOC proceedings; substantively, Gateway asserts that this claim cannot succeed because plaintiff has failed to produce evidence sufficient to make out a prima facie case of age discrimination. Once again, plaintiff does not spend any time in its brief addressing these arguments, and with good reason: Gateway is right on both counts.

A.

The general rule is that a plaintiff cannot assert in litigation Title VII (or ADEA) claims that were not presented to in the EEOC. Cheek v. Western Southern Life Insurance Company, 31 F.3d 497, 500 (7th Cir. 1994). This requirement is a condition precedent with which all Title VII (and ADEA) Plaintiffs must comply, Babrocky v. Jewel Food Company, 773 F.2d 857, 863 (7th Cir. 1985), with only limited exceptions. "To include a discrimination claim in a federal district court complaint that was not brought in the charges filed with the EEOC[,] a plaintiff must pass the two prong test of Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164 (7th Cir. 1976): (1) the claim is like or reasonably related to the EEOC charges, and (2) the claim in the complaint reasonably could develop from the EEOC investigation into the original charges. 538 F.2d at 167." See, e.g., Harper v. Godfried Co., 45 F.3d 143, 148 (7th Cir. 1995).

In this case, plaintiff does not get past the first prong of the Jenkins test. The EEOC charge (Def.'s Facts ¶ 9) states nothing other than plaintiff's belief that his demotion and salary reduction were "on the basis of my race," pointing to his assertion that a "similarly situated non-black employee who was demoted retained the salary he was paid prior to his demotion." Nothing in the charge gives any clue that plaintiff considered age to be at all relevant to the discrimination he claimed to have suffered. Moreover, the mere fact that plaintiff alleged race discrimination did not, ipso facto, put Gateway on notice that he was also alleging age discrimination. See, e.g., Siciliano v. Chicago Local 458-3M, 946 F. Supp. 596, 600 (N.D. Ill. 1996) (plaintiff's claims of disability and age discrimination dismissed with prejudice as not reasonably related to the allegations of sex discrimination in the charge, because "[a]t no time did plaintiff describe conduct by the Union that could possible be construed as disability and age discrimination while she was describing her sex discrimination allegations").

The Court is mindful that slavish adherence to mere "technicalities" would ignore the fact that EEOC charges are typically initiated by lay people, unassisted by counsel. But "the requirement of some specificity in a[n EEOC] charges is not a `mere technicality.'" Cheek v. Western and Southern Life Insurance, Co., 31 F.3d 497, 501 (7th Cir. 1994). If plaintiff had wished to pursue an age discrimination claim, he could have so indicated in some way during the EEOC proceedings — as he did with his race discrimination claim. Because he did not do so, plaintiff may not proceed now with an age discrimination claim in federal court.

B.

Plaintiff's age discrimination also fails on the merits. In order to establish a prima facie case of age discrimination, plaintiff would have to show (1) that he was in the protected class (persons between the age 40 and 70); (2) that he was meeting his employer's legitimate job expectations; (3) that he nonetheless was subjected to an adverse personnel action; and (4) that the employer treated other persons, who were much younger, more favorably. Biolchini v. General Electric Co., No. 989-2017, Slip Op. at 5 (7th Cir., Feb. 5, 1999); Coco, 128 F.3d at 1178-79; Wolf, 977 F.3d at 919.

For the reasons discussed at length above, plaintiff has failed to offer evidence sufficient to support a prima facie case that he was performing to his employer's legitimate expectations. Under Coco, this, without more, is sufficient to require summary judgment for Gateway. See Biolchini, Slip Op. at 5 (affirming summary judgment where plaintiff failed to offer evidence showing, among other things, that he was meeting his employer's legitimate job expectations).

Moreover, plaintiff's prima facie case also fails on another ground: plaintiff cannot show that he was replaced by a much younger person, or that there was another similarly situated employee who was "much younger and treated more favorably." In O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996), the Supreme Court held that an inference of age discrimination "can not be drawn from the replacement of one worker with another worker insignificantly younger." The Seventh Circuit has echoed this rule, (in affirming summary judgment for an employer on an age discrimination claim where plaintiff failed to show that the replacement was "substantially younger." Adreani v. First Colonial Bank Shares Corp., 154 F.3d 389, 395 (7th Cir. 1998). Furthermore, the Seventh Circuit has provided guidance about what constitutes "substantially younger." In Richter v. Hook-Super X, Inc., 1998 WL 199768, *4 (7th Cir. 4/27/98), the Court held that replacement would be presumed substantially younger if he or she was at least ten years younger than the plaintiff; if there is less of an age differential, the plaintiff must offer other evidence supporting inference of age discrimination.

Here, it is undisputed that the individual who replaced plaintiff as a Clinical Supervisor is only three years younger than plaintiff. Plaintiff offers no other evidence to indicate he was demoted to make room for a younger person. Plaintiff's fact statements offer no evidence as to Ms. Sullivan's age, and thus plaintiff has failed to make out this element after prima facie case as to Ms. Sullivan. Finally, while Mr. Gubbe is nearly thirteen years younger than plaintiff ( see Def.'s Facts ¶ 8 and Ex. 7, ¶ 2), as discussed above, plaintiff has not offered facts to show he was treated less favorably than Mr. Gubbe regarding his job position (both were demoted), and has not rebutted Gateway's legitimate, non-discriminatory explanation for reducing his salary and not Mr. Gubbe's. Thus, for these reasons as well, Gateway is entitled to summary judgment on plaintiff's age claim.

CONCLUSION

In Smith, 875 F.2d at 1330, the Seventh Circuit affirmed a directed verdict granted for an employer on a claim of a discriminatory demotion. The Seventh Circuit's concluding remarks in that opinion are apt in this case as well:

Although [plaintiff's] job performance while employed with the defendant prior to 1984 was satisfactory, his quality of work during 1984 was seriously marred by the four incidents cited by defendant. Plaintiff cannot expect to be retained in a supervisory position based on his past performance in light of his sharply deteriorating performance in 1984. It is not our province to second guess the business judgment of an employer where, as here, it acted on ample legitimate justification for demoting the plaintiff.

Similarly, the record in this case shows that after plaintiff's "good" evaluation in September in 1996, a litany of serious performance problems during the next two and one-half months ensued and provided Gateway with "ample legitimate justification" for demoting him. Despite being afforded repeated opportunities, plaintiff continued to exhibit serious performance problems which only increased in the fall of 1996.

Moreover, the Court notes that in addition to the plaintiff's failure to offer evidence of race or age discrimination, the summary judgment record in fact contains significant evidence consistent with discriminatory animus. For example, instead of being let go when his Clinical Supervisor position was eliminated in the Adult Care Program, plaintiff was given an opportunity to move to the same position in the Youth Care Program — despite his lack of experience dealing with youths and despite the misgivings of the staff. In addition, in September 1996, plaintiff was given a "good" evaluation by Mr. Feliciano despite exhibiting some performance problems. Plaintiff did not object to that evaluation, and he offers no basis for a jury to reasonably conclude that the same Mr. Feliciano suddenly recommended his demotion out of racial animus only two and one-half months later. In short, the summary judgment record establishes that plaintiff here was the engine of his own demise; as a result, the antidiscrimination laws provide him with no relief.

For the foregoing reasons, the Court respectfully recommends that the District Court grant defendant Gateway Foundation's motion for summary judgment (Doc. # 33-1). Specific written objections to this Report and Recommendation may be served and filed within ten business days from the date that this Order is served. Fed.R.Civ.P. 72(A). Failure to file objections with the District Court within the specified time will result in a waiver of the right to appeal all findings, factual and legal, made by this Court in the Report and Recommendation. See, Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986).