Opinion
Case No. 98 C 4648
March 13, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Johnnie Gettings ("Gettings" or "Plaintiff"), an African-American female, has filed an Amended Complaint against Defendant AT T ("Defendant" or "AT T"), alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981 ("Section 1981") for AT T's under-evaluation of her performance, failure to promote her, and ultimate termination of her employment. Defendant has moved for summary judgment pursuant to FED.R.CIV.P. 56. For the reasons that follow, the Court GRANTS Defendant's Motion for Summary Judgment.
LEGAL STANDARD
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); Patel v. Allstate Insurance Co., 105 F.3d 365, 367 (7th Cir. 1997). In evaluating a motion for summary judgment, the entire record is considered with all inferences and factual disputes resolved in favor of the nonmovant. Valance v. Wisel, 110 F.3d 1269, 1274 (7th Cir. 1997). The movant bears the initial burden of establishing that the record presents no genuine issue of material fact. Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). Then the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e).
The nonmovant cannot succeed in creating a factual dispute solely by resting on allegations in the pleadings but must produce evidence showing there is a disputed issue for trial. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). In order to withstand summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Only genuine disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
Motions for summary judgment in employment discrimination cases must be approached "with added rigor" because credibility and intent are often central issues. Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 393 (7th Cir. 1998).
ANALYSIS Plaintif's Claims
Plaintiff asserts that her poor performance evaluations, lack of promotion, and ultimate termination constitute violations of Title VII and Section 1981. Plaintiff's claims are considered independently under each statute.
Title VII Claims
Plaintiffs claims of discrimination are not actionable under Title VII. Before a plaintiff may bring suit under Title VII, he or she must file a charge with the EEOC encompassing the acts which form the basis of the subsequent lawsuit. Gonzalez v. Ingersoll Mill Mach. Co., 133 F.3d 1025, 1032 (7th Cir. 1998). In this case, the discrimination charge Plaintiff filed with the EEOC only cited the poor evaluation of Plaintiff's performance. ( See EEOC Charge attached to First Amended Complaint.) Hence, Plaintiff is procedurally barred from asserting claims of termination and failure to promote under Title VII.
Although Plaintiffs Title VII claim based on under-evaluation survives this procedural hurdle, it fails since a poor performance evaluation does not constitute an "adverse employment action" actionable under Title VII. "[P]oor performance evaluation alone, even if undeserved, is not an adverse action" which merits recovery under Title VII. Speer v. Rand McNally Co., 123 F.3d 658, 663 (7th Cir. 1997). Plaintiff's Title VII claims do not survive summary judgment.
Section 1981 Claims
Plaintiff may prove her Section 1981 discrimination claims through direct evidence or indirectly through the burden-shifting mechanism of McDonnell Douglas. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). In this case, Plaintiff has presented no direct evidence of discrimination. Direct evidence of intentional discrimination entails proof of acknowledgment by the Defendant of a discriminatory motive. Troupe v. May Department Store, 20 F.3d 821, 823 (7th Cir. 1994).
Under the McDonnell Douglas framework, a prima facie case of employment discrimination creates a rebuttable presumption that employer's actions, if unexplained, were the result of impermissible factors and shifts the burden of production to the employer to articulate some legitimate, nondiscriminatory reason for its actions; if the employer satisfies that burden, Plaintiff must then show that articulated reasons were pre-textual. Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1261 (7th Cir. 1994).
Plaintiff has attempted to prove, indirectly, that Defendant discriminated against her in violation of Section 1981 when it (1) failed to promote her, (2) gave her a poor performance evaluation, and (3) ultimately terminated her.
The Court need not consider Defendant's argument that Section 1981 does not cover employees without employment contracts since Plaintiff's 1981 claims fail on the merits.
Failure to Promote
To prove a prima facie case of failure to promote, Plaintiff must show that: (1) she applied for a promotion; (2) she was entitled to the promotion; and (3) the individual promoted had the same or lesser qualifications. Bragg v. Navistar International Transportation Corp., 164 F.3d 373, 376 (7th Cir. 1998). If Plaintiff makes a prima facie case, the burden shifts to Defendant to show legitimate nondiscriminatory reasons for the non-promotion; if Defendant does that, the "employee must demonstrate that those reasons (each of them, if a reason standing alone was sufficient to cause her employer to take the action it did) are lies." Brill v. Lante Corporation, 119 F.3d 1266, 1269 (7th Cir. 1997). "Moreover, if the [defendant] honestly believed those reasons, the plaintiff loses even if the reasons are foolish or trivial or even baseless." Id.
Plaintiff has not met her summary judgment burden in regards to her failure to promote claim. Plaintiff has not shown any of the elements of a prima facie case of failure to promote. She has not shown: (1) she applied for a promotion, (2) she deserved the promotion or (3) another individual who was promoted had the same or lesser qualifications. Plaintiff's conclusory allegation that she was passed over for promotions is insufficient to survive summary judgment.
Performance Evaluation and Termination
To prove discrimination indirectly, Plaintiff must establish that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was meeting her employer's legitimate performance expectations; and (4) her employer treated similarly situated employees who were not in the protected class more favorably. Maarouf v. Walker Manufacturing Co., 210 F.3d 750, 751 (7th Cir. 2000). Plaintiff has failed to meet her burden of establishing the fourth element of a discrimination claim.
Plaintiff has not shown that other employees outside her protected class were treated more favorably. Plaintiff alleges that Laura Harty, a white female, took the same amount of time off but was given a higher performance rating. (Pl.'s 56.1 ¶ 3, 12). This allegation, on its face, only makes it appear that AT T did not penalize either Ms. Gettings or Ms. Harty for their decisions to take time off under the Family and Medical Leave Act.
Plaintiff contends that she was "under-evaluated" in her 1996 and 1997 performance appraisals when she received a "Fully Met "rating. It bears noting that Plaintiff received a similar performance evaluation in 1990, 1991, 1992, and 1993. (Def.'s 56.1 ¶ 11-13). The fact that AT T wanted to reduce its staff and that employees who were not rated as exceeding expectations were put "at-risk" does not mean AT T is guilty of discrimination. If Plaintiff could show that other employees outside the protected class who received similar performance reviews were retained, she might have met this burden.
Fully Met Objectives" is the middle rating of five possible performance evaluations: Far Exceeded Objectives, Exceeded Objectives, Fully Met Objectives, Partially Met Objectives, and Unsatisfactory.
AT T has explained its mediocre evaluation of Plaintiff's performance and its decision to terminate her as deriving from her poor job skills. Defendant has cited a missed filing, a poorly handled conference call, and a failure to meet commitments as the basis for its performance evaluation. (Def.'s 56.1 ¶ 29).
Even if Gettings was able to make out a prima facie case of discrimination, her complaint would still fail because she has not shown pretext. A plaintiff can establish pretext by showing that the employer's explanation is unworthy of credence or that a discriminatory reason more likely motivated the employer. Debs v. Northeastern Illinois Univ., 153 F.3d 390, 395 (7th Cir. 1998). "[Pretext . . . means a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Courts "do not sit as a super-personnel department that reexamines an entity's business decisions." Wolf 77 F.3d at 920.
The only proof that Plaintiff offers to show this explanation is pretextual is her own subjective assessment of her skills. Perhaps notably, Gettings testified that she did not remember any of these instances. (Pl.'s Response to Def.'s 56.1 ¶ 29). Plaintiff's subjective evaluation of her own performance is insufficient to show pretext. As the Seventh Circuit stated in Gustovich v. AT T, 972 F.2d 845, 847 (7th Cir. 1992):
An employee's self-serving statements about his ability . . . are insufficient to contradict an employer's negative assessment of that ability . . . Such statements may create a material dispute about the employee's ability but do nothing to create a dispute about the employer's honesty — do nothing, in other words, to establish that the proffered reason is a pretext for discrimination.
Plaintiff has failed to show either a prima fade case of discrimination or that Defendant's stated reasons for her performance evaluation and termination are pretextual.
CONCLUSION
For the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.IT IS HEREBY ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment is Granted.