Opinion
Cause No. IP 99-198-C H/K
December 5, 2002
ENTRY ON DEFENDANT'S SUMMARY JUDGMENT MOTION
Plaintiff Clifford Hudson has sued his former employer for race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, and for disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Hudson worked for defendant Citizens Gas Coke Utility ("Citizens Gas") in various capacities over a period of 18 years, working most recently as prospector fitter. Over the course of those 18 years, Hudson was unavailable for work approximately 16% of the time due to health-related problems. Citizens Gas terminated Hudson's employment on November 11, 1997, after he had returned to work from nearly a year-long period of short-term disability.
Hudson has alleged that Citizens Gas refused to permit him to return to work on light duty, failed to waive his life insurance premiums, and ultimately terminated his employment because of his race and his disability. Defendant Citizens Gas contends that it terminated Hudson because of his excessive unavailability for work. The parties stipulated to the dismissal of the ADA claims, Counts I and IV of plaintiff's complaint. Defendant Citizens Gas has moved for summary judgment on the remaining claims against it. Taken in isolation, Hudson's record of extensive absence over many years could easily support the defendant's decision to fire him. However, Hudson has come forward with evidence that Citizens Gas treated more favorably a white employee who was otherwise similarly situated, especially in terms of extensive absences. Thus, genuine issues of material fact preclude summary judgment. The issues will need to be decided by a jury.
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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir. 2000).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to them. See, e.g., Alexander v. Wisconsin Dep't of Health and 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).
Undisputed Facts
The following facts are either undisputed or reflect the record in a light reasonably most favorable to plaintiff Clifford Hudson, the non-moving party.
I. Hudson's Employment
Clifford Hudson is African-American. Prior to his termination in 1997, Hudson had worked for Citizens Gas for 18 years. Citizens Gas is a public charitable trust that provides energy services to central Indiana residents. Hudson joined Citizens Gas in October 1979 as a laborer at its Prospect Plant.
Hudson held several different positions in the manufacturing division of Citizens Gas before he successfully bid on a meter serviceman position in the distribution division in 1986. A year later the title of Hudson's job changed to customer serviceman, though his responsibilities remained the same. In this capacity, Hudson was provided with a serviceman truck and traveled to different sites to inspect new homes and perform troubleshooting functions such as testing gas lines for leaks, turning on gas lines, lighting appliances, and clamping cut lines. In 1996, Hudson became a prospector fitter, which involved a pay increase and additional responsibilities.
During his employment with Citizens Gas, Hudson suffered numerous ailments and injuries. Hudson has endured surgery on his index finger and shoulder and numerous surgeries on his knees, and he has experienced neck and back problems. Hudson alleges that he also suffers from depression. Due to his medical problems, Hudson was unavailable for work for 5,914.75 of the 37,047 available work hours during his 18 years of employment. Def. Ex. 10. In other words, Hudson was unavailable for work 15.97% of the time. Id. A large portion of Hudson's absences occurred during his last seven years with Citizens Gas. From January 1, 1991 through November 3, 1997, Hudson was unavailable for work approximately 32.6% of the available hours. Id.
Citizens Gas monitored Hudson's absence record throughout his employment and dealt with his frequent unavailability in several ways. When Citizens Gas reviewed Hudson's absence record in 1988, 1989, and twice in 1991, his record was excused "due to the nature of his year-to-date Group I absence" and his past record. Def. Ex. 9. Hudson received no warning for his attendance record in these years. Though Citizens Gas also reviewed Hudson's record twice in 1994, it issued no warning to him. However, the attendance record reviews for these dates indicate that Hudson was to be "reviewed upon his return to work." Id.
Citizens Gas follows a modified no-fault attendance program. Absences are divided into two categories: Group I absences and contractually agreed upon absences. Rosier Dep. 74. Contractual absences include personal business days, vacations, holidays, bereavement pay, jury duty, military service, etc. All other absences are considered Group I absences and count against an employee's attendance record. Id. at 75.
On August 31, 1995, Citizens Gas issued a formal warning to Hudson regarding his absence record, explaining that his "absence hours were excessive" and that "failure to show satisfactory improvement would be cause for review which may result in further disciplinary action" including disqualification as a bidder for one year. Id.
In 1996, Hudson experienced problems with his right knee and it was determined that he needed surgery. In an attempt to minimize his number of absences, Hudson arranged to have his knee surgery performed on November 6, 1996 during a week of vacation. Hudson Dep. 95. Hudson did not return to work at the end of his vacation. Instead, he began a short-term disability leave on November 18, 1996 pursuant to Citizens Gas' Short-Term Disability Plan. During his leave, Hudson also had surgery on his right shoulder. Id. at 100.
Under Citizens Gas' policy, short-term disability begins on the eighth calendar day of leave. Hummel Dep. 25-26. An employee may remain on short-term disability for 360 days. After 360 days, an employee may remain on leave, but disability benefits will cease unless the employee qualifies for Social Security disability benefits. Long-term disability begins on the date that the Social Security Administration qualifies the individual for disability. Id. at 27-28.
During a period of short-term disability, an employee receives 72% of his or her base pay through the first six months of leave, and 65% of his or her base pay through the second six months. Id. at 30. During a period of short-term disability, Citizens Gas also pays an employee's health and life insurance premiums.
In October 1997 while he was still on leave, and shortly before he would reach the 360 day limit, Hudson called Kerry Lowdermilk (Superintendent of Gas Operations) to inquire about a storeroom job that was no longer posted as an available position. Hudson testified that he was trying to find a job that he could do until he retired. Hudson Dep. 329. During the conversation, Lowdermilk asked Hudson if he had been released to work by his physician. Id. at 363. When Hudson replied "no," Lowdermilk told him to call back when he was released. The position was later filled by another African-American, Hudson's brother-in-law. Id. at 329.
Hudson remained on leave for nearly a year. He returned to work on November 3, 1997, the date on which he was released by his physician without restrictions. Id. at 107. When he returned to work, Citizens Gas ceased payment of his health and life insurance premiums.
Hudson worked November 3, 4, 5, and 6 as a prospector fitter. Citizens Gas assigned Hudson to ride and work with another prospector fitter during these days for the purpose of retraining. Each of the prospector fitters that Hudson rode with was Caucasian. Hudson testified that he overheard Harry Lockridge, the prospector fitter he rode with on the second day, tell their supervisor that he did not see how Hudson could do the job because of the difficulty he had getting in and out of the vehicle. Hudson Dep. 112. Hudson testified that by the third day, this arrangement began to offend him. Id. at 181. On November 7, 1997, Hudson did not report for work because of excruciating knee pain. Id. at 116.
II. Hudson's Discharge
In October 1997, during Hudson's leave, Kerry Lowdermilk and Earle Stevenson (Director of Gas Operations) requested that Dennis Rosier (Compensation and Labor Relations Administrator) review the absence records of three bargaining unit employees: Clifford Hudson, Michael Zorniger, and Wayne Jaynes. Rosier Dep. 42, 44. Lowdermilk and Stevenson specifically requested an absence review of the time period from January 1, 1991 to the present.
Upon reviewing Hudson's Group I absences, Rosier determined that Hudson was unavailable for work 32.6% of the available work hours during the requested time period. Def. Ex. 10. Rosier, Lowdermilk, and Stevenson then decided to issue Hudson a Last Chance Agreement the day that he returned to work. Rosier Dep. 47. Robert Hummel, Director of Human Resources for Citizens Gas approved this course of action. Id. at 50.
Rosier testified that he prepared the Last Chance Agreement. Rosier Dep. 48. The Last Chance Agreement produced by Citizens Gas during discovery states that Hudson had an absence ratio of 22% from January 1, 1987 to November 3, 1997, which was "totally unacceptable." Pl. Ex. 25. It further states that Hudson would be required to maintain an attendance level of 98% over the next two year period or he would be terminated.
Though Rosier prepared the Last Chance Agreement, it was never issued to Hudson. Rosier Dep. 48. Lowdermilk forgot to issue the Last Chance Agreement to Hudson the day that he returned to work from his short-term disability leave. After learning that Hudson had not received the Last Chance Agreement, Rosier decided to contact Hummel to determine whether the Last Chance Agreement should still be issued to Hudson. Id. at 50. Hummel told Rosier to wait because they needed to review Hudson's total record. Hummel then asked Rosier to prepare such a review.
Rosier complied with Hummel's request, and determined that Hudson was unavailable for work 15.97% of the time during his 18-year career with Citizens Gas. On November 6, 1997, Rosier informed Hummel of his findings and recommended that Citizens Gas terminate Hudson's employment. Rosier Dep. 56. Hummel asked Rosier to review all employees to determine what action Citizens Gas had taken in the past under similar circumstances. Rosier reviewed all disciplinary actions taken by Citizens Gas and again recommended that Hudson be terminated. Hummel agreed, and Rosier sent a termination letter to Hudson dated November 11, 1997, which explained that Hudson was being terminated for his "continued unavailability for work." Def. Ex. 25.
III. After Hudson's Discharge
On March 26, 1998, the Social Security Administration determined that Hudson was disabled within the meaning of the Social Security Act as of November 1996, and was eligible to receive monthly disability benefits beginning in May 1997. Def. Ex. 47.
Hudson filed two grievances on November 14, 1997, with the International Brotherhood of Electrical Workers ("IBEW") Local Union 1400, requesting that he be reinstated and that Citizens Gas pay disability benefits to him. Def. Ex. 36. An agreement was reached by the parties whereby Citizens Gas would place Hudson on disability and Hudson would pay monthly health care insurance premiums and withdraw his grievances. Def. Ex. 22. Hudson will continue to receive benefits until age 65.
IV. Michael Zorniger
Like Hudson, Michael Zorniger was also employed as a prospector fitter for Citizens Gas. By 1997, Zorniger had worked for Citizens Gas for about 28 years and had also missed significant periods of work for medical reasons. Rosier conducted a review of Zorniger's absence record in October 1997 at the request of Stevenson and Lowdermilk. Rosier Dep. 112-113. The review indicated that he was unavailable for work 28% of the available hours from January 1, 1991 to October 1997. Rosier Dep. 113-15; Pl. Ex. 4. Citizens Gas took no disciplinary action against Zorniger at that time. Rosier Dep. 115.
From 1969 to 1999, Zorniger was unavailable for work approximately 12% of the available hours. Pl. Ex. 4, Def Ex. 4. This figure includes data from two years after Hudson's termination.
On February 2, 1998, Citizens Gas prepared and issued a Last Chance Agreement to Zorniger. The agreement stated that Zorniger was unavailable for work 22% of the available hours from January 1, 1988 to January 1, 1998. Pl. Ex. 7. Under the terms of the agreement, Zorniger was required to maintain an attendance level of 98% from February 9, 1998 to December 31, 1999.
Other facts are noted below in the court's discussion of the issues, construing the record evidence under the standard for a motion for summary judgment.
Discussion
Hudson has asserted race discrimination claims under Title VII and 42 U.S.C. § 1981 based on (1) defendant's decision not to allow Hudson to return to work on light duty; (2) defendant's failure to waive Hudson's life insurance premiums; and (3) defendant's decision to terminate Hudson's employment on November 11, 1997.
In his response to defendant's motion for summary judgment, Hudson has not addressed claims (1) or (2). As a result, defendant is entitled to summary judgment on these issues for the reasons stated in defendant's briefs. The only remaining issue is whether defendant's decision to terminate Hudson's employment violated Title VII and § 1981. 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). Although the court discusses below only Hudson's 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). Hudson has not offered any direct evidence of race discrimination. Rather, Hudson argues that the court should analyze his claims under the three-step pattern of indirect proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Under this model, Hudson 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 Citizens Gas treated one or more similarly situated employees outside of his protected class more favorably. See Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 547 (7th Cir. 2002); Stockett v. Muncie Indiana Transit System, 221 F.3d 997, 1001 (7th Cir. 2000); Lenoir v. Roll Center, 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 decision, that step shifts the burden 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). If the trier of fact finds that the employer's stated reason is false, the trier of fact would be permitted, but not required, to infer that the employer's real reason was discriminatory. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147 (2000).
I. Hudson's Prima Facie Case
In support of summary judgment, Citizens Gas contends that Hudson cannot establish the second and fourth elements of his prima facie case: that he was performing his job satisfactorily and that a similarly situated employee was treated more favorably than he was. The parties do not dispute that Hudson has met the first and third elements of his prima facie case. Hudson is a member of a protected class as an African-American and he was terminated from Citizens Gas.
With respect to the second element, Citizens Gas argues that Hudson failed to meet its expectations because of his excessive absenteeism, and he therefore was not performing satisfactorily. In his final seven years of employment, Hudson missed 32% of the available work hours. Citizens Gas contends that reliability and availability for work are legitimate considerations in maintaining a workforce, and that an employee who misses one-third of his available work hours simply cannot perform his essential job functions to his employer's satisfaction.
Hudson's case presents an example of cases — those alleging discrimination in the application of what would otherwise be legitimate discipline — in which the second element depends not on fully satisfactory performance but on comparisons between the plaintiff and other similarly situated employees. In limited circumstances, the second element of the prima facie case is modified so that the plaintiff need not demonstrate that he was actually meeting his employer's legitimate expectations. See Brummett v. Lee Enterprises, Inc., 284 F.3d 742, 745 (7th Cir. 2002). Such analysis is appropriate "in cases where the reason for the employee's termination was alleged to be a sham designed to hide the employer's discriminatory purpose." Id., citing Vakharia v. Swedish Covenant Hospital, 190 F.3d 799, 807 (7th Cir. 1999). A plaintiff may also be excused from showing that he met the legitimate expectations of his employer where he alleges that other employees also were not meeting the employer's expectations but either were not disciplined or were not disciplined as harshly. See Curry v. Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001) (it makes little sense to discuss whether plaintiff met employer's legitimate expectations where issue is whether employer singled out plaintiff for discipline for a prohibited reason); Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir. 1999) (same). The case before the court falls within this narrow exception.
The court therefore turns to the last element of the prima facie case: whether Hudson demonstrated that similarly situated employees not within his protected class were treated more favorably. To meet this burden, Hudson must show that the defendant treated more favorably someone who was directly comparable to himself "in all material respects." Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). In disciplinary cases, this means the plaintiff must be similarly situated with respect to performance, qualifications, and conduct. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). "This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Id. at 617-18.
Plaintiff compares himself to Michael Zorniger, and contends that Citizens Gas treated Zorniger more favorably than it treated him. Plaintiff argues that although the attendance records of both Hudson and Zorniger were "totally unacceptable" to Citizens Gas, only Hudson was terminated.
Here, the relevant inquiry is whether the alleged conduct of Michael Zorniger is of "comparable seriousness" to Hudson's conduct such that defendant's decision not to fire Zorniger could permit a reasonable inference that Citizens Gas fired Hudson for discriminatory reasons. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973) (using phrase "comparable seriousness" to discuss conduct that may support inference of discrimination); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 547 (7th Cir. 2002) (relevant question in disciplinary cases is whether severity of conduct is comparable); 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) ("precise equivalence in culpability between employees is not the ultimate question"); see also Lloyd v. Bridgestone 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 employees are "involved in or accused of the same offense and are disciplined in different ways").
Plaintiff's evidence indicates that both Hudson and Zorniger were prospector fitters and bargaining unit employees for Citizens Gas who had missed significant hours of work for medical reasons. Hudson and Zorniger shared the same supervisors, Kerry Lowdermilk and Earle Stevenson, and these supervisors requested that both Hudson's and Zorniger's attendance records be reviewed by Dennis Rosier for the period of January 1, 1991 to October 1997. A review of the attendance records revealed that during the relevant time period Hudson and Zorniger had comparably poor attendance records. Hudson was unavailable for work 32% of the time and Zorniger was unavailable for work 28% of the time.
Plaintiff's evidence further shows that Rosier, Lowdermilk, and Stevenson initially decided to issue a Last Chance Agreement to Hudson. Rosier prepared the agreement and Hummel approved the agreement. The Last Chance Agreement produced through discovery indicates that Hudson's 22% absence ratio from January 1, 1987 to November 3, 1997 was "totally unacceptable." Pl. Ex. 25. The Agreement, however, was never issued to Hudson. Instead, Citizens Gas terminated his employment for continued unavailability for work on November 11, 1997.
Though Hudson was terminated, Zorniger was not. On February 2, 1998, Citizens Gas issued a Last Chance Agreement to Zorniger. The agreement stated that Zorniger's 22% absence ratio from January 1, 1988 to January 1, 1998 was also "totally unacceptable." Pl. Ex. 7. Zorniger signed the agreement and is still employed by Citizens Gas.
Citizens Gas has argued that the difference between the 32% and 28% absence rates is significant and prevents Hudson from relying on the treatment of Zorniger to show race discrimination. That difference, however, presents a jury question rather than an issue the court could decide as a matter of law. The evidence, when construed in a light reasonably most favorable to plaintiff, demonstrates that Hudson and Zorniger were alleged to have engaged in the same misconduct: excessive absenteeism. The evidence further indicates that their absenteeism was of "comparable seriousness." Hudson and Zorniger had missed 32% and 28%, respectively, of their available work hours from January 1991 to October 1997. Moreover, the Last Chance Agreements indicate that Hudson and Zorniger had identical absence ratios of 22% over a different period of time, which Citizens Gas deemed to be "totally unacceptable."
For summary judgment purposes, plaintiff has come forward with sufficient evidence to demonstrate that a similarly situated person not within his protected class was treated more favorably by the defendant. Plaintiff has therefore established his prima facie case.
II. Pretext
For similar reasons, the court concludes that Hudson has presented enough evidence of pretext to preclude summary judgment. "A showing that similarly situated employees belonging to a different racial group received more favorable treatment can also serve as evidence that the employer's proffered legitimate, nondiscriminatory reason for the adverse job action was a pretext for racial discrimination." Gordon v. United Airlines, Inc., 246 F.3d 878, 892 (7th Cir. 2001) (internal quotation marks omitted), citing Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000); Curry v. Menard, Inc., 270 F.3d 473, 479 (7th Cir. 2001) (vacating summary judgment and finding sufficient evidence of pretext where employer claimed it was following disciplinary policy and plaintiff produced evidence that disciplinary policy was not enforced against similarly situated non-black employees), citing Russel v. Board of Trustees of the University of Illinois at Chicago, 243 F.3d 336, 342 (7th Cir. 2001); Lynn v. Deaconess Med. Center-West Campus, 160 F.3d 484, 488-89 (8th Cir. 1998); Williams v. City of Valdosta, 689 F.2d 964, 975 (11th Cir. 1982).
Defendant's nondiscriminatory justification for discharging Hudson is his excessive absenteeism over the last seven years of his employment. However, Hudson presented evidence that another prospector fitter, Zorniger, was not African-American and was not terminated despite having a comparable attendance record for the past seven years. Rather, Citizens Gas issued a last chance agreement to Zorniger. This inconsistency creates a genuine issue of material fact because it creates a reasonable inference that the defendant's proffered reason for terminating Hudson was a pretext for discrimination. If a jury were to find on the facts that there was disparate treatment in Citizens Gas' disciplining of Hudson when compared to Zorniger, a jury could also reasonably find that Citizens Gas' proffered reason for discharging Hudson was pretextual. Therefore, summary judgment is not appropriate.
Defendant points to Hudson's continued unavailability for work since November 7, 1997 as evidence that its decision to terminate Hudson was reasonable. Plaintiff claims that such evidence is after-acquired evidence and is irrelevant. In the court's view, both arguments miss the point.
The evidence of Hudson's unavailability since November 7, 1997 is distinguishable from the type of evidence characterized as "after-acquired evidence" in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). In McKennon, the Supreme Court held that where an employer's decision to terminate an employee is the product of illegal discrimination and the employer later discovers wrongful conduct that would have led to the employee's termination, such after-acquired evidence is not a bar to recovery. Id. at 358-60. While evidence of the wrongful conduct is not relevant to the issue of liability, such evidence may be considered in determining the appropriate remedial action. Id. at 361-62.
Here, Citizens Gas asserts that it discharged Hudson because of his excessive absenteeism. Since his termination, Hudson has been unavailable for work due to disability. This evidence is not offered by Citizens Gas as an alternative reason for Hudson's dismissal. Rather, this evidence is offered in support of defendant's asserted legitimate, non-discriminatory reason for terminating Hudson.
Though evidence of Hudson's unavailability since November 7, 1997 is not excluded from the liability phase of this case by the after-acquired evidence doctrine, such evidence is nonetheless irrelevant to liability because it does not bear on defendant's motivation at the time it fired plaintiff. Evidence relevant to defendant's non-discriminatory justification for discharging Hudson is that which relates to what the defendant knew and relied upon at the time it took the challenged action.
The factual submissions in this case indicate that Citizens Gas based its decision to discharge Hudson on the totality of his attendance record up to November 6, 1997. Rosier Dep. 61 (explaining that on November 6, 1997, he calculated absence ratios based on the totality of attendance records). Therefore, Hudson's attendance record after November 6, 1997 did not influence Citizens Gas' decision to fire him, making Hudson's subsequent unavailability irrelevant to issues of liability. Such evidence may be relevant, however, to the scope of any ultimate relief that might be awarded to Hudson if he prevails at trial.
Conclusion
Defendant's motion for summary judgment is hereby denied with respect to Hudson's claims that he was fired based on his race and is granted in all other respects. The court will hold a final pretrial conference on Friday, January 10, 2003, at 3:00 p.m. in Room 330, U.S. Courthouse, Indianapolis, Indiana. Trial remains scheduled for Tuesday, January 21, 2003.
So ordered.