Opinion
Cause No. IP 00-1239-C H/K
March 20, 2002
ENTRY ON DEFENDANT'S SUMMARY JUDGMENT MOTION
Plaintiff Jerry Gates alleges that his former employer, defendant L. R. Green Company, Inc., which does business as Poster Display Company, transferred him to a different shift, terminated his employment, and gave him negative references because of his race. Gates was the only African-American supervisor who worked at Poster Display. Gates has sued Poster Display under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Poster Display has moved for summary judgment on Gates' claims, and the motion is granted for the reasons discussed below. As a matter of law, Gates cannot establish a prima facie case of racial discrimination. In addition, Gates has not offered any evidence that Poster Display's stated reasons for his termination were pretexts for unlawful discrimination.
In the caption, Gates' complaint also identified as defendants "Jane Doe(s) in their official capacities and individually, and John Doe(s) in their official capacities and individually." The court strikes these references from the caption. Neither the complaint nor any other document that Gates has filed in this matter asserts a claim against any individual. See also Williams v. Banning, 72 F.3d 552 (7th Cir. 1995) (Title VII does not authorize claims against individual supervisors). In addition, any new Title VII or Section 1981 claim related to Gates' employment would fail for reasons including the statute of limitations. See King v. One Unknown Federal Correctional Officer, 201 F.3d 910 (7th Cir. 2000); Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998). In Indiana, the statute of limitations on Title VII claims is 300 days and the limitations period for Section 1981 claims is two years. See Vore v. Indiana Bell Tel. Co., Inc., 32 F.3d 1161, 1162-63 (7th Cir. 1994).
The court also vacates the Magistrate Judge Assignment Order previously entered in this matter. The undersigned judge has taken full responsibility for this decision.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. 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." Anderson, 477 U.S. at 249-50 (citations omitted).Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to such cases. See, e.g., Alexander v. Wisconsin Dep't of Health Family Serv., 263 F.3d 673, 681 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact. See Haugerud v. Amery School Dist., 259 F.3d 678, 689 (7th Cir. 2001) (same standard applies to any type of case). Summary judgment is not a discretionary procedure, though. When the moving party has shown it is entitled to summary judgment, the court must grant it. To do otherwise would be to condemn the parties, witnesses, and jurors to spend time, money, and energy on a trial that could have only one just result.
Preliminary Matters
Local Rule 56.1 requires a party opposing summary judgment to file a Response to Statement of Material Facts in the format prescribed by the rule. See L. R. 56.1(b) (f). The court may assume that the moving party's asserted and properly supported facts are undisputed unless such facts are specifically controverted or objected to in compliance with the rule. L. R. 56.1(g). The court also may, in the interest of justice, excuse strict compliance with the rule. L. R. 56.1(k).
Here, Gates has admitted the background facts in Poster Display's statement of material facts. Pl. Br. at 3. In other respects, Gates has failed to comply with Local Rule 56.1. At pages 3-5 of his brief, Gates has discussed and cited evidence that generally supports his theory of the case. Some of this evidence places in dispute some of the defendant's factual assertions. The court excuses Gates' failure to comply with the technical requirements of Local Rule 56.1 but has not "scoured the record" in search of potential factual disputes. See, e.g., Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001). In particular, the court is not aware of evidence disputing the substance of the employee complaints against Gates except for his March 26, 1999 memorandum to Diane Thompson in which he denied "any and all of the allegations that were filed against me." This memorandum is dated the day after the group complaint and Donna Johnson's sexual harassment complaint against him. Gates had received copies of both complaints.
Undisputed Facts
The following facts are either undisputed or reflect the record in the light reasonably most favorable to plaintiff Gates, the non-moving party.
Defendant Poster Display produces advertising and promotional materials, specializing in large format silk-screen printing. Poster Display hired Gates as a finishing supervisor for the second shift on March 15, 1999. Gates supervised 10 to 12 employees on the second shift. Gates was the first African-American supervisor to work at Poster Display, and most or all of the employees he supervised were white.
On March 25, 1999, ten days after Gates started working for Poster Display, six employees presented a written complaint about Gates to his direct supervisor, Bill Oeffinger, operations manager Mike Fox, and human resources manager Diane Thompson. The complaint stated:
Please accept our formal complaint. We the undersigned feel as though our rights under the code of conduct are being violated. We are being intimidated and constantly talked to in an unprofessional way by Jerry L. Gates. We find the way we are addressed and talked to be intimidating and very offensive. We request an open discussion on this matter, allowing appropriate measures to be taken.
Oeffinger Aff., Ex. 1.
Also on March 25, 1999, Donna Johnson submitted a separate written statement to Fox, Thompson, and Oeffinger alleging that Gates was sexually harassing her. Johnson was one of the six employees who signed the complaint about Gates' intimidating behavior. In her sexual harassment complaint, she wrote:
I would like to inform you of the fact that I believe I'm being sexually harassed by my supervisor Jerry Gates. I voiced my fears last week verbally to Mike Fox. Now I feel there is a need to put them in writing. I verbally voiced to Mike Fox that he was needlessly rubbing against me. The last two days has become worse. Tuesday, March 23, 1999, while in the break room he asked when I would meet him. I said I wouldn't. He said how he would pamper me and my daughter. Wednesday, March 24, 1999, he asked again if I would meet him. I said no. He stated remember that when you're fired. He constantly follows me and harasses me. Please look into this matter.
Oeffinger Aff., Ex. 2.
On March 26, 1999, Gates responded to the "formal complaint filed with Human Resources" in a memorandum to Thompson. Gates stated that he felt he was being falsely accused and that he denied "any and all of the allegations that were filed against me." Pl. Ex. 10. Gates also wrote that he had warned his crew about taking long breaks. Before Gates accepted his position at Poster Display, Thompson had told Gates that she felt he would receive some type of "retaliation" from the second shift employees because they had not had much supervision. Gates Dep. at 36.
On April 27, 1999, Johnson filed with the Indiana Civil Rights Commission a sexual harassment charge against Poster Display based on Gates' conduct. Fox and Thompson investigated Johnson's allegations internally. According to Thompson, there was no conclusive evidence that sexual harassment had or had not occurred. Thompson Aff. ¶ 6. Thompson described the incident as a "he said, she said situation." Id. ¶ 7. According to Fox, "the evidence was not sufficient to find that the alleged conduct did not take place." Fox. Aff. ¶ 6. Johnson withdrew her charge on August 16, 1999.
On April 30, 1999, Johnson's mother, second shift employee Peggy Wilson, filed a charge against Poster Display with the Equal Employment Opportunity Commission. She alleged that Gates had retaliated against her. Wilson claimed that she had been forced to quit because of harassment by Gates after Johnson had filed her sexual harassment complaint against Gates.
On September 28, 1999, Bonnie Sosbe, a second shift "team leader" complained to Oeffinger that Gates was showing favoritism towards temporary employee Mindi Matkins, which was affecting the whole team in a negative way. Sosbe also complained that Gates: (1) allowed Matkins to take a long lunch break with him; (2) asked Matkins to drive him to a car shop twice in one shift; (3) pulled Matkins away from her work to talk to her in the back of the building and outside; (4) got into an argument at work when Matkins thought Gates was "hitting on" another employee; (5) was on the telephone for over an hour at a time every night; (6) spent three to four hours away from production every night; (7) was gone from the building an hour or more every night; (8) failed to motivate employees to finish their work on time; and (9) allowed temporary employees to stay on the clock even though they were not working. Oeffinger Aff. ¶ 5. Oeffinger told his supervisor, Scott Wood, about Sosbe's complaint. Wood was the production manager of manufacturing.
On November 1, 1999, Sosbe told Wood that Gates and another employee waxed Gates' car on a Saturday night when they were supposed to be working and then left work early. Sosbe also told Wood that Gates acted "worse" after she talked to Oeffinger in September, including by threatening employee Christy Wickersham's job if he found out that Wickersham had "snitched" on him. Wickersham later told Wood that Gates showed favoritism, was not helpful to employees, and was very unprofessional. Wood Aff. ¶ 5.
On November 4, 1999, Wood told Gates that he was being moved temporarily to first shift effective November 8, 1999. The reasons given were to allow Gates to obtain additional training and to attempt to ease the strained relationship that existed between Gates and the second shift employees he supervised.
During the first week of November 1999, Oeffinger completed a performance appraisal for Gates. Oeffinger and Wood met with Gates to discuss his review on November 10, 1999. Wood informed Gates that he would not receive a merit raise because of unsatisfactory performance. Oeffinger rated Gates "unsatisfactory" in the areas of "handles multiple responsibilities simultaneously," "relates to employees of all levels," "works and interacts as a `team' member," "generates new ideas," "sets [customer service] objectives," and "tracks/monitors [customer service] objectives." Oeffinger also rated Gates' performance as "less than expected" in 14 other categories. One of Gates' weakest areas was "interpersonal/teamwork."
Gates has produced a document titled "1999 Performance Appraisal," which is different from and more positive than the form completed by Oeffinger. Pl. Ex. 11. Gates has offered no authentication for the document, and it is not admissible for consideration on the motion for summary judgment.
Gates has submitted affidavits from some of his former colleagues at Poster Display regarding his performance. Fox stated that Gates "contributed mightily" to the production process and was "honest, dependable and refreshingly professional." Fox Aff. ¶¶ 4-5. Fox worked with Gates until May 1999 when Fox left Poster Display. According to James Shockley, a printing supervisor who worked with Gates, Gates was the best supervisor at Poster Display. Shockley Aff. ¶ 4. Process engineer and supervisor Jeffrey Perkins has described Gates as "diligent." Perkins Aff. ¶ 5. Perkins believes that the employees Gates supervised did not like Gates because he ran an "aggressive" shift. Id. ¶ 6. Rodney Maxey was an employee who worked with Gates and was "pleased with his professional conduct and delegating responsibility." Maxey Aff. ¶ 3. Maxey believes that Gates treated everyone fairly. Id. ¶ 4. Maxey, who is African-American, observed "tension" between Gates and the white employees he supervised. Id. ¶ 5.
Sometime between November 10 and November 15, 1999, vice president/ general manager Dan Perritt received a letter from former temporary employee Diana Spears complaining that Gates had made sexual advances towards her. Spears worked under Gates' supervision from May 27, 1999 through September 3, 1999. Gates said that he recommended against hiring Spears as a regular full-time employee after her 90-day probationary period because of absenteeism. Spears claimed that Gates did not hire her because she had not responded to his sexual advances and that Gates had fabricated the evidence of her absences.
Wood interviewed Spears on November 15, 1999 along with Ray Jordan, vice president of administration and acting human resources manager. Spears stated that Gates began asking her offensive personal questions four to five weeks into her employment. Specifically, Gates asked her about her marriage, how she got along with her husband, and if she would have a drink with him. He once referred to Spears as "Mrs. Gates." Sosbe and employee Debbie Siebers corroborated some of Spears' allegations.
Poster Display fired Gates on November 18, 1999. Wood made the termination decision. His reasons were that Gates had exhibited unprofessional conduct as a supervisor, lacked focus and attention to his responsibilities, and exhibited poor interpersonal/team-building skills. Wood considered the fact that Poster Display had received several employee complaints about Gates, including sexual harassment complaints.
Gates bases his claim of racial discrimination, in part, on two comments made to him by Poster Display managers who were not involved in the decision to fire him. Gates alleges that vice president Ray Jordan asked him how he afforded his clothes or his car and asked him if he was selling drugs. Gates drove a Jaguar XJ6 then switched to a Mercedes 500S while working at Poster Display. Gates' salary was $42,500. No other Poster Display employees drove a Mercedes 500S or a Jaguar. In addition, according to Gates, vice president Perritt once told him: "Jerry, we need to hire more blacks. We need more blacks in here." Gates Dep. at 85. Gates also has introduced evidence of other race-related comments allegedly made by Perritt and Jordan to other employees.
Gates also alleges that Poster Display has given him unfavorable job references. He bases this claim on his inability to get a job and on Poster Display's response to a telephone call by his wife. Mrs. Gates called Poster Display posing as a prospective employer. In response to her request for a reference for Gates, "there would be a hesitation, and no positive comments." Julie Gates Aff. ¶ 4. Mrs. Gates "was given the impression" that her husband was not a good employment candidate. Id.¶ 5. Additional facts are included below, keeping in mind the summary judgment standard.
Discussion
Gates asserts race discrimination claims under Title VII and 42 U.S.C. § 1981 based on (1) his reassignment to first shift effective November 8, 1999; (2) his termination on November 18, 1999; and (3) alleged negative job references. The legal standards for both claims are generally the same. See Gonzalez v. Ingersoll Mill Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998); Melendez v. Illinois Bell Telephone Co., 79 F.3d 661, 669 (7th Cir. 1996). Although the court discusses below only Gates' Title VII claims, the reasoning applies to both statutes.
Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). Gates has not offered any direct evidence of race discrimination, nor has he argued the case as a direct evidence case. Accordingly, the court analyzes his claims under the three-step pattern of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this model, Gates must first establish a prima facie case of race discrimination by producing evidence that tends to show that (1) he is a member of a protected class; (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) that Poster Display treated similarly situated employees outside of his protected class more favorably. See Stockett v. Muncie Indiana Transit System, 221 F.3d 997, 1001 (7th Cir. 2000); Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994).
The prima facie case is intended to identify circumstances in which a jury could infer that an employment decision, if not explained, was the product of illegal discrimination. See, e.g., Stockett, 221 F.3d at 1001. However, if the employer can then merely articulate a legitimate, non-discriminatory reason for its decisions, that step shifts the burden of proof and persuasion back to the plaintiff to show that the employer's stated reason is a pretext, that is, a false explanation for the decision. See id.; Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000).
I. Gates' Prima Facie Case
Viewing the record evidence in the light reasonably most favorable to plaintiff, Gates has not come forward with sufficient evidence to establish a prima facie case of race discrimination.
Gates' claim based on the shift transfer is legally insufficient because, without more, a shift transfer is not an adverse employment action. The Seventh Circuit has "repeatedly held that a lateral transfer without a loss in benefits does not constitute an adverse employment action." Stutler v. Illinois Dep't of Corrections, 263 F.3d 698, 702 (7th Cir. 2001), citing Place v. Abbott Labs., Inc., 215 F.3d 803, 810 (7th Cir. 2000); Hill v. American Gen. Fin., Inc., 218 F.3d 639, 645 (7th Cir. 2000); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). Gates has not argued, and no evidence suggests, that he lost any benefits when he was transferred to the first shift effective November 8, 1999. Accordingly, Gates' claim fails as a matter of law to the extent that it is based on this employment decision.
Gates' claim based on negative job references fails because there simply is no evidence that Poster Display gave him any negative job references. According to Gates, he applied for about 70 jobs and never received any job offers. In addition, Mrs. Gates did not receive any positive information when she called Poster Display posing as a prospective employer. A reasonable jury could not conclude from this evidence that Poster Display gave Gates negative job references. See Patt v. Family Health Systems, Inc., 280 F.3d 749, 753 (7th Cir. 2002) (affirming summary judgment where plaintiff alleged negative job references but presented no hard evidence of any such references; it was not enough that a former colleague "dropped hints about his negative views" in a "mock background check" commissioned by the plaintiff); Moreno-Nicholas v. City of Indianapolis, 2000 WL 1707970, at *4, Cause No. IP 98-1398 (S.D.Ind. Oct. 26, 2000) (plaintiff could not have suffered any adverse employment action as a result of a negative job reference to an employment counselor who was not a prospective employer).
Poster Display also has argued that Gates' allegations regarding negative job references are barred under Title VII because he did not include them in an EEOC charge. See Def. Br. at 20-21. The court disagrees. Although not described as such in the complaint, Gates' allegations about the negative references are best understood as a claim of post-employment retaliation. See Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997) (former employee can sue under Title VII for post-employment acts of retaliation that have a nexus to employment or impinge on future employment prospects). An employee is not required to file a separate EEOC charge alleging retaliation when the retaliation occurs in response to the filing of the original EEOC charge. Gawley v. Indiana University, 276 F.3d 301, 314 n. 8 (7th Cir. 2001), citing Aviles v. Cornell Forge Co., 183 F.3d 598, 603 (7th Cir. 1999). Gates filed his EEOC charge on November 18, 1999 — the day he was fired. Any references by Poster Display necessarily would have occurred after the charge.
Gates' termination claim fails because he has not produced evidence that tends to show that he was treated less favorably than similarly situated white employees. To establish the final element of his prima facie case on his termination claim for summary judgment purposes, Gates also must come forward with evidence that tends to show that Poster Display treated similarly situated white employees more favorably than it treated him based on conduct of comparable seriousness.
Gates alleges that Poster Display treated three white employees more favorably. First, Gates compares himself to Diane Spears. Spears was disciplined and then fired on Gates' recommendation because of absenteeism, though Spears claimed it was because she had refused his advances. In spite of these problems, Poster Display rehired Spears after Gates' termination. Gates was never offered his job back following his termination. Second, Gates alleges that Ed Gannon was treated more favorably because Poster Display rehired Gannon after he had left the company, and Gannon eventually replaced Gates as a supervisor. Third, Gates cites the example of Peggy Wilson who was disruptive and who threatened that she was going to "send two guys to Gates' home to `kick his butt'." Gates sent two notes about Wilson to Oeffinger but Poster Display took no action against her.
The relevant inquiry is whether the alleged conduct of the other employees is of "comparable seriousness" to Gates' conduct such that Poster Display's decisions to rehire Spears and Gannon and not to discipline Wilson support the inference that the company fired Gates for discriminatory reasons. See Friedel v. City of Madison, 832 F.2d 965, 974 (7th Cir. 1987), citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n. 11 (1976), where the Supreme Court wrote that "precise equivalence in culpability between employees is not the ultimate question." See also Johnson v. Artim Transp. System, Inc., 826 F.2d 538, 544 (7th Cir. 1987) (where plaintiff urges the court to compare "violations of similar rather than identical rules, it may well be more helpful to focus on the nature of the misconduct"); Lloyd v. Bridgeport Brass Corp., 811 F. Supp. 401, 405-06 n. 4 (S.D.Ind. 1993) (the "relevant inquiry" in determining whether employees are "similarly situated" is whether the employees are "`involved in or accused of the same offense and are disciplined in different ways'"), quoting Rohde v. K.O. Steel Castings, Inc., 649 F.2d 317, 322 (5th Cir. Unit A 1981) (emphasis in Lloyd). Cf. Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1155 (7th Cir. 1997) (plaintiff must show that he was treated differently under "identical circumstances").
Based on the evidence before the court, Gates was not similarly situated to any of the three employees with whom he seeks to compare himself. Absenteeism, Spears' alleged offense, is not comparable to the allegations against Gates, which include allegations that he was an intimidating supervisor, showed favoritism, sometimes left work during his shift, and engaged in sexually harassing and retaliatory behavior. The allegations against Gates directly implicate the well-being of other employees, while absenteeism does not. In addition, the allegations of sexual harassment and retaliation potentially could expose Poster Display to legal liability.
Regarding Gannon, there is no record evidence about why he left Poster Display in the first place. See Perkins Aff. ¶ 10 (the only record evidence about Gannon: "Prior to Mr. Gates being terminated, Poster Display rehired a white employee, Ed Gannon, who became supervisor upon Jerry Gates' dismissal."). For all the court knows, he quit voluntarily. No inference can be drawn from Poster Display's decision to rehire Gannon and not to offer Gates his job back.
Gates also was not similarly situated to Wilson, who he alleges was not disciplined after Gates twice complained about her. Although Wilson allegedly engaged in inappropriate conduct by threatening Gates' family, a reasonable jury could not conclude that her conduct was comparably serious to Gates' conduct, which allegedly included more numerous and more serious incidents, particularly in light of his role as a supervisor. In addition, although Poster Display eventually took action against Gates by firing him, it did so only after several complaints from several employees. Poster Display did not discipline Gates after the first two complaints against him on March 25, 1999.
Because Gates has not come forward with evidence that tends to show that Poster Display treated similarly situated white employees more favorably, Gates cannot establish a prima facie case of race discrimination and his claim fails as a matter of law.
The court does not reach the issue of whether Gates was performing his job satisfactorily as part of the prima facie case.
II. Pretext
Gates' termination claim also fails as a matter of law because he has not produced evidence that would allow a reasonable jury to find that Poster Display's stated legitimate, non-discriminatory reasons for firing Gates were pretexts for racial discrimination. Poster Display asserts that it fired Gates on November 18, 1999 because of repeated complaints about Gates' performance as a supervisor, including two sexual harassment complaints and a retaliation complaint during the first eight months of his employment as a supervisor. To survive summary judgment, Gates must come forward with evidence that would allow a reasonable jury to find by a preponderance of the evidence that Poster Display's stated reasons were not merely wrong as a factual matter but were false pretexts for illegal race discrimination.
A pretext for discrimination "means more than an unusual act; it means something worse than a business error; `pretext' means deceit used to cover one's track's." Kulumani, 224 F.3d at 684, citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-48 (2000). A plaintiff can establish pretext if he can show that the defendant's proffered reasons were either lies or completely lacking in factual basis. Mills v. Health Care Service Corp., 171 F.3d 450, 458 (7th Cir. 1999); Ghosh v. Indiana Dep't of Environmental Management, 192 F.3d 1087, 1091 (7th Cir. 1999).
Gates is not required to present direct evidence of pretext. He could establish pretext indirectly by producing evidence that Poster Display's proffered reasons for disciplining him are not credible:
a plaintiff may accomplish this showing [of pretext] with evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge. These formulations are simply different ways of recognizing that when the sincerity of an employer's asserted reasons for discharging an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation.
Testerman v. EDS Technical Products Corp., 98 F.3d 297, 303 (7th Cir. 1996) (citation omitted); accord, Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000).
To raise a fact issue on pretext, Gates relies exclusively on statements by supervisors who were not involved in the decision to fire him. Vice president/general manager Dan Perritt allegedly told Gates: "We need to hire more blacks." In addition, Ray Jordan, vice president of administration and acting human resources manager asked Gates how he could afford nice clothes and luxury cars and further inquired: "Are you selling drugs?"
Gates also points to evidence that other employees heard these supervisors make other race-related remarks. Perritt told process engineer Jeffrey Perkins he did not want to hire any temporary employees from a particular agency because "the majority of these temps were black" and were "crackheads." Perkins Aff. ¶ 7. Former printing supervisor James Shockley once heard Perritt refer to an African-American as "nigger rich." Shockley Aff. ¶ 5.
These comments were not made by the relevant decision-makers and were not related to the termination decision. They were "stray remarks" and are not direct evidence of discrimination. See Indurante v. Local 705 International Brotherhood of Teamsters, 160 F.3d 364, 367 (7th Cir. 1998), citing O'Connor v. DePaul University, 123 F.3d 665, 671 (7th Cir. 1997). Stray remarks may be relevant to whether an employer's proffered non-discriminatory reason for an adverse employment action is pretextual. See id. "Still, even under the indirect approach, stray remarks must be considered in the context of all the evidence, and may not overcome summary judgment if they stand alone as evidence that might support an inference of pretext." O'Connor, 123 F.3d at 672 (affirming summary judgment for employer where decision-makers had called other employees "old" and had used profanity in reference to them); see also Indurante, 160 F.3d at 368 ("We have never held that a discrimination case must go to a jury if a plaintiff is able to supplement stray remarks with any other probative evidence whatsoever.").
Here, Perritt's and Jordan's alleged comments do not raise a fact question on pretext because they do not tend to raise an inference that Wood decided to fire Gates because of his race. There is no evidence that Perritt or Jordan had any role in the termination decision. Perritt received Spears' sexual harassment complaint and Jordan was involved in investigating it. Other than that, there is no evidence that Perritt and Jordan were involved in Gates' employment at all. In addition, there is no evidence of when these comments allegedly were made. Finally, the alleged comments do not relate to Gates' termination or to any other employment decision affecting him. Thus, although several of the comments, if made, were race-related and offensive, they do not tend to cast doubt on whether Poster Display has stated its honest reasons for the Gates discharge. In the absence of any other evidence of pretext, the comments are not enough to send Gates' claim to a jury.
Conclusion
Plaintiff Gates' claims under Title VII and Section 1981 are insufficient as a matter of law because he cannot prove a prima facie case of discrimination or pretext. The court therefore GRANTS summary judgment to defendant L. R. Green Company, Inc. d/b/a Poster Display Company. Final judgment for defendant L. R. Green Company, Inc. will be entered.
So ordered.