Opinion
Cause No. IP00-0043-C-M/S
March 22, 2001
ORDER ON MOTION FOR SUMMARY JUDGMENT,
MOTION TO STRIKE SURREPLY BRIEF, AND MOTION FOR SANCTIONS
This matter comes before the Court on defendant Avis Rent A Car System, Inc.'s ("Avis") motion for summary judgment on plaintiff James Johnson's ("Johnson") Title VII claims. Avis has also filed a motion to strike Johnson's surreply brief and seeks sanctions against Johnson under 28 U.S.C. § 1927. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS in part and DENIES in part Avis' motion for summary judgment. The Court also DENIES Avis' motion to strike as moot and DENIES its motion for sanctions.
I. FACTUAL BACKGROUND A. JOHNSON'S EMPLOYMENT HISTORY WITH AVIS 1. Johnson Begins Working As A Bus Driver in 1985
Johnson, a graduate of Broad Ripple High School with two years of college, applied for employment with Avis on December 3, 1984, and began working as a part-time courtesy bus driver on January 9, 1985. Stmt. of Facts ¶ 1, 60, 61, 63. On July 22, 1995, Avis placed Johnson on full-time status to replace another full-time bus driver. Id. ¶ 68. Avis gave Johnson salary increases several times from 1985 to 1996. Id. ¶ 69. Avis also selected Johnson as "Employee of the Month" on February 1, 1988; February 1, 1990; December 19, 1990; November 18, 1991; and October 19, 1993. Id. ¶ 70.
On January 24, 1996, a customer wrote to Avis favorably about Johnson's performance and he received a "You Try Harder" check. Id. ¶ 71. In October 1997, another customer wrote to Avis favorably about Johnson's performance and he received the "You Tried Harder" award. Id. ¶ 72. During his employment, Johnson received evaluations with marks of above-average and/or excellent in 1991, 1992, and 1998. Pl.'s Ex. 7. He also received at least three favorable "visible management check lists." Id. Johnson was offered and purchased Avis stock and was proud to be called an "owner employee." Stmt. of Facts ¶ 75.
2. Johnson's Supervisors
During much of his employment, Johnson reported to Patti Pope ("Pope"), Senior Shift Manager. Id. ¶ 2. He also reported to the District Manager, who is the manager of the entire Indianapolis office. Id. ¶ 3. Until 1997, Jeff Fregeau ("Fregeau") was the District Manager of the Indianapolis office, and Rod Booher ("Booher") was the Airport Manager. Id. ¶ 5. In 1997, Mike Merritt ("Merritt") replaced Fregeau as District Manager, and Dave Herstowski ("Herstowski") replaced Booher as Airport Manager. Id. ¶ 6. That same year, Susie Tides ("Tides") began working in the Indianapolis office as Senior Human Resources Representative. Id. ¶ 7.
3. Johnson's Desire To Become A Shift Manager
Shift managers at Avis must work full time, including weekends and holidays, and are not eligible for overtime pay. Susie Tides Aff. ¶ 5. Shift managers work a minimum of 50 hours per week, and sometimes work up to 70 hours per week. Id. ¶ 6. Shift managers must have flexible schedules because often they must work late into the evenings, beyond their regularly-scheduled hours. Id. ¶ 7. As a general rule, Avis' shift managers do not work second jobs due to the demanding and unpredictable hours they must work. Id. ¶ 8.
Johnson desired a full-time position as shift manager to advance at Avis. He knew that he had to quit his part-time job at American Airlines ("American") and wanted to devote his attention to a full-time job with one employer. Stmt. of Facts ¶ 104. He knew that he might not make as much money initially, but he had every reason to believe that he would receive pay raises. Id. ¶ 109. He was aware that shift managers worked a minimum of 50 hours per week, and sometimes up to 70 hours per week. Id. ¶ 110. He also knew that the shift managers worked full time, including weekends and holidays, and that they were not eligible for overtime pay. Id. ¶ 105. Johnson was willing to work weekends, holidays, and full time as a shift manager. Id. ¶ 106. He was also willing to give up his job at American if he had been promoted to shift manager at Avis, even if it meant a drop in his income. Id. ¶ 101. Johnson would have done whatever it took to advance himself with Avis, including moving to Chicago. Id. ¶ 102-103.
4. Johnson's Part-Time Job At American Airlines
During his employment with Avis, Johnson also held a part-time job at American. Johnson Dep. at 20. He let Avis know when he began working for American in 1986. Stmt. of Facts ¶ 84. During Johnson's employment at Avis, his starting times changed periodically. Johnson Dep. at 48-49. At one point, Johnson worked at Avis from 4:00 a.m. to 11:00 a.m, then went to his job at American at 11:30 a.m. Stmt. of Facts ¶ 76, 78. Sometime in 1998, Johnson apparently agreed to work full time when Herstowski and Merritt allowed him to change his hours to a 3:00-10:30 a.m. shift. Johnson Dep. at 81-83. Johnson liked working those hours because it allowed him time before he had to go to his job at American. Stmt. of Facts ¶ 81. Throughout his employment, Johnson opened the Avis facility to the public whether that was at 3:00 a.m., 4:00 a.m., or 4:30 a.m. Id. ¶ 82.
It is not clear from the evidence, but it appears that Johnson was working part-time at Avis during this time period.
On December 10, 1997, the United States Department of Labor Office of Contract Compliance Programs ("OFCCP") began a compliance review at Avis. Id. ¶ 126. On February 26, 1998, the OFCCP interviewed Johnson in conjunction with the compliance review. Id. ¶ 128. Johnson complained to the OFCCP about the unfair treatment of him regarding the lack of promotion to shift manager and his scheduling. Id. ¶ 129.
On March 12, 1998, the OFCCP issued a Notice of Violation to Avis. Stmt. of Facts ¶ 127.
After Johnson talked to the Department of Labor, Avis changed his start time back from 3:00 a.m. to 4:00 a.m, which meant that he would not get off until 12:00 p.m. Id. ¶ 130; Johnson Dep. at 83. Merritt, who made the decision to change the start time, told Johnson he had done so because he did not believe that employees needed to report to work that early. Johnson Dep. at 64. In addition, he told Johnson that Pope wanted him to leave at the top of the hour. Stmt. of Facts ¶ 132. Because Johnson was not getting along with Pope at the time, he did not believe this explanation. Johnson Dep. at 87. Apparently because they had earlier agreed to a 3:00-10:30 a.m. schedule, Johnson approached Herstowski to discuss the situation. Herstowski advised him to continue doing what he was doing and that he would talk to Merritt. Id. at 83-84. Johnson also told Herstowski that Pope wanted him to get off at 12:00 noon. Id. at 84. Herstowski responded that he would talk to Merritt again. Id. at 85. Johnson later met with Pope and told her about the agreement he had with Herstowski and Merritt that would allow him to work from 3:00 a.m. to 10:30 a.m. Pope told him that she felt they had done him enough favors. Id. at 85. Pope did not explain why she thought he should leave at noon. Id. at 85. On March 23, 1998, Johnson went from full time to part time and was no longer a lead bus driver. Stmt. of Facts ¶ 137.
B. AVIS' EMPLOYMENT POLICIES
Avis' employees can earn more by advancing with the company and Avis is a firm believer in promoting from within. Id. ¶ 86. Avis states that it will embrace a diversity of ideas, cultures, ethnicity, and background to enhance its promise and value to customers. It also states that it will develop and retain leaders who continually raise the bar, provide direction, remove barriers, and empower people to successfully accomplish goals. Id. ¶ 87. Johnson was told that Avis' mission was "to serve the customer and that it promoted those employees who gave excellent customer service." Id. ¶ 89.
C. JOHNSON'S CLAIMS OF DISCRIMINATION AND RETALIATION 1. Denial of Promotions
Avis' job advertisements for shift manager positions in Indianapolis state that a "management background in the hotel, restaurant, retail, military or other service environment and a Bachelor's degree are preferred," but not required. The applicant is asked to respond to Tides. Id. ¶ 90. Sometime before the end of 1997, Johnson applied for a shift manager position and was interviewed by Fregeau and Booher. They told him they would observe him dealing with customers and then consider his application. Id. ¶ 92; Johnson Dep. at 190-192. Avis hired Gene Matson, instead. Johnson learned that Matson had been interviewed in Chicago and that his name was already on the board as being hired. Id. ¶ 93. That led Johnson to believe that Avis never really considered him for the position even though it interviewed him. Johnson Dep. at 190.
After Avis hired Matson, Don Egan — the City Manager — told Johnson that he would be interviewed for the next shift manager job. Stmt. of Facts ¶ 94. Avis did not interview Johnson for the next position, however, and instead hired Ted Epperson from outside the company at the end of 1997. Id. ¶ 95; Johnson Dep. at 191-192.
Airport Manager Herstowski told Johnson that he would be considered for the shift manager position when it became available. Stmt. of Facts ¶ 96. Avis did not interview Johnson, however, and instead hired Kenton Boyer ("Boyer") from outside the company because Tides and Merritt liked him. Id. ¶ 97. Avis hired Boyer on April 6, 1999, to work as shift manager at Avis' Chicago location. Id. ¶ 11. Boyer was scheduled to train at Avis' Indianapolis location, then transfer to Chicago after he completed his training. Id. ¶ 12. Boyer came to Avis with a Bachelor's Degree in Economics and two years of experience as a branch manager at Car Temps, an automobile rental company similar to Avis. Id. ¶ 14. As a branch manager, Boyer was responsible for hiring, firing, and disciplining employees and directing their work. Id. ¶ 15. Boyer informed Avis that he had substantial experience working with computer databases and spreadsheets — including Lotus and Excel — as well as experience forecasting business trends, creating sales projections, working in marketing, allocating resources, and working under budgetary constraints. Id. ¶ 16.
Herstowski told Johnson he would be interviewed for the next shift manager position, but Avis once again did not interview him and instead hired Brian Noojin ("Noojin") on April 21, 1999, to work as a shift manager at its Chicago location. Id. ¶¶ 17, 98-99. Similar to Boyer, Noojin was scheduled to train at Avis' Indianapolis location, and then transfer to Chicago after completing his training. Id. ¶ 18. Noojin came to Avis with a Bachelor's Degree in Philosophy and two years of experience as an Area Manager at CCP Industries. Id. ¶ 20. Noojin told Avis that as an Area Manager, he had been responsible for hiring, firing, and disciplining employees and directing employees' work. Id. ¶ 21. Noojin informed Avis that prior to working as an Area Manager at CCP Industries, he worked as an Area Manager trainee. Id. ¶ 22. Noojin also told Avis that he had substantial experience working with computer databases and spreadsheets — including Lotus and Excel — as well as experience forecasting business trends, creating sales projections, working in marketing, allocating resources, and working under budgetary constraints. Id. ¶ 23.
Avis never told Johnson that he was not qualified for a promotion for any particular reason. It did not tell him that he was not qualified because he did not have the proper educational background, including a college degree. Id. ¶ 116. Avis never told him that he had to have experience in software spreadsheet and database applications such as Lotus or Excel. Id. ¶ 117. Johnson was very familiar with the Avis WOW or computer system, because as a bus driver, he used a computer to log in all preferred customers who did not have to go to the sales desk for service. Id. ¶ 119. In addition, as lead bus driver Johnson had the responsibility of disciplining and evaluating employees' performances. Id. ¶ 19.
Avis sought to exclude this statement because it believed that Johnson contradicted his deposition testimony. After reviewing the testimony, however, the Court concludes that Johnson did not contradict his testimony, but merely elaborated on his job duties. In considering Avis' motion for summary judgment, the Court will accept these facts as true.
2. Johnson's Various Complaints To Avis
Johnson apparently complained to Avis on various occasions throughout his employment about the alleged discrimination against African-Americans. On September 1, 1993, Avis told Johnson that if he continued to complain about racial issues "without facts" he would be jeopardizing his lead position and his position as a bus driver. Id. ¶ 139. Three years later, in November 1996, Fregeau wrote Johnson and advised him that he needed facts to support his claims of racism and harassment. Id. ¶ 140. Fregeau told Johnson that he could contact Mike Emery ("Emery") in the central area human resources department. Id. ¶ 141. Sometime when Merritt was still the manager, Johnson complained to Emery about the fact that Avis hired Epperson for the shift manager position and that Avis treated minorities unfairly with respect to attendance issues. Johnson Dep. at 216-218. Johnson asked Emery to get back with him, but he never did. Johnson Dep. at 218.On June 4, 1997, Johnson met with Booher and Fregeau, who told him not to infer racial issues without fact. Stmt. of Facts ¶ 144. Johnson was reminded that in 1996 and again in 1997, Avis had warned him that "any comments, statements or allegations toward indifferent or unfair treatment should be based on facts, in order to give Avis Rent A Car System, Inc. the opportunity to confront and eliminate unacceptable behaviors." Id. ¶ 145.
In 1998, Johnson called Egan and complained to him about Merritt and that he had been passed over for the shift manager's job. He also complained that blacks were treated unfairly with respect to attendance and that he was being harassed about making complaints. Id. ¶ 154. Egan then met with Johnson and Merritt to discuss his complaints. Id. ¶ 155.
At some point, Johnson complained to Tides in Human Resources about the shift changes and told her that he was suspicious because the change was made after he talked with the Department of Labor. Id. ¶ 149. Johnson does not know if Tides discussed his complaints with Merritt. Johnson Dep. at 80.
3. Johnson's Allegations Of Hostile Work Environment
During his 14-year career with Avis, Johnson witnessed two incidents in which Avis employees made racial comments. Id. ¶ 46. On one occasion, an employee named Laura John said that when blacks leave the workplace, they should be with blacks and whites should be with whites. Id. ¶ 47. On another occasion, a service agent named "Bill" once referred to professional boxer Mike Tyson as a "rich nigger" in Johnson's presence. Id. ¶ 48. Both comments occurred no later than 1997. Id. ¶ 50. Johnson complained about the comments to Pope and then to district manager Fregeau. Id. ¶ 49. After complaining to Pope, Johnson had no further problems with his co-workers. Id. ¶ 51.
Although he only witnessed two incidents of alleged racial harassment, Johnson claims that he was aware of others. For example, he was aware that an Avis mechanic who had been out on sick leave and was replaced with Ron Fortson, an African-American, stated that "a nigger had replaced" him and that he was wondering "where the jungle bunnies came from." Johnson Aff. ¶ 22. Another employee, Michelle Gaines, complained to Johnson that management had criticized her appearance. Johnson never found Gaines' appearance to be unsuitable for a bus driver. Id.
Johnson also submitted the affidavits of other employees who had complaints about the work environment at Avis. For example, former employee Anderlyn Murff, an African-American, heard a co-worker call a customer a "black bitch." She also believed that Avis treated white employees more favorably with respect to scheduling. Murff only worked at Avis from July to August 1999 before she resigned. She was a Preferred Service Representative, and reported to Gene Matteson. Murff Aff.
George Owens, an African-American, worked as a preventive maintenance technician for Avis from July to September 1999. He reported to Ray Malospiriti. Avis management once verbally counseled Owens for failing to punch his time card and once thought he was stealing a car that he was servicing. Another employee constantly reported to management on Owens' whereabouts. Owens resigned from Avis. Owens Aff.
Fortson also resigned from Avis because of the allegedly hostile work environment. Fortson Aff. He felt that Avis treated whites differently with respect to breaks. He also was upset that Avis refused to hold its company picnic somewhere other than Martinsville, Indiana, which he believed to be the home of the Ku Klux Klan. Fortson Aff.
Johnson complained to Avis about things that happened to him and to other employees. For example, he complained that a rental agent said she did not want to deal with a "black bitch," referring to a customer. Stmt. of Facts ¶ 158. Johnson also told Pope about the comment an employee made about Mike Tyson being a "rich nigger." Pope said that "it's a shame that racism has to raise its ugly head." Id. ¶ 160.
Johnson has not identified an incident where an employee made a racial remark about him. Id. ¶ 52. None of his supervisors ever used racially derogatory language. Id. ¶ 53. Johnson also did not identify any racially-based comments directed at him that were threatening, humiliating, or offensive. Id. ¶ 54. Johnson believes Pope is a racist because she changed his shift schedule and because he disagreed with one performance evaluation she gave him. Johnson Dep. at 169-170. He believes Merritt is a racist because Johnson disagreed with Merritt's handling of attendance issues and his decision not to promote him. Id. at 176-177. He also thinks Merritt was intimidating because on one occasion Merritt had a weak handshake and gave Johnson a funny look. Id. at 173-174. He believes Tides is a racist because she agreed with certain decisions of Merritt and Pope and failed to correct various attendance issues. Id. at 177-178. Finally, Johnson thinks Rod Booher is racist because he did not like how Booher assigned voluntary time off. Id. at 180.
4. Johnson Leaves Avis
Johnson worked as a bus driver at Avis until his resignation on May 14, 1999. Stmt. of Facts ¶ 8. Johnson resigned because he disagreed with Avis' decision to change his starting time and because he believed that he was overlooked for promotion. Johnson Dep. at 180-181. When Johnson tendered his resignation, Herstowski asked him to stay and assured him that he would be considered for upcoming promotions. Id. at 182. That did not persuade Johnson to consider staying at Avis. Id. Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission on June 7, 1999. Stmt. of Facts ¶ 16. This lawsuit followed.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith 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.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit had suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. Holland, 883 F.2d at 1312. As the Seventh Circuit has recently emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. TITLE VII STANDARDS
Johnson has alleged claims for failure to promote, retaliation, hostile work environment, and constructive discharge. Johnson does not argue that he has direct evidence of discrimination or retaliation. Accordingly, at least with respect to his failure to promote and retaliation claims, he must proceed under the burden-shifting mechanism outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the indirect method of proof, Johnson must initially set forth, by a preponderance of the evidence, a prima facie case of race discrimination or retaliation. Id. If Johnson makes a showing sufficient to prove a prima facie case he will enjoy a rebuttable presumption of discrimination that shifts the burden of production to Avis to articulate a "legitimate, nondiscriminatory reason" for its actions. Freeman v. Madison Metropolitan School Dist., 231 F.3d 374, 379 (7th Cir. 2000). Avis may do so by producing evidence, whether or not persuasive, of a nondiscriminatory reason. Hicks, 113 S.Ct. at 2747 (noting that the plaintiff retains the ultimate burden of persuasion on the issue of intentional discrimination). If Avis succeeds in this task, the presumption dissolves and the burden of production shifts back to Johnson to demonstrate that the proffered reason for the adverse employment action is a pretext for discrimination or retaliation. Id., Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1309 (7th Cir. 1997).
Avis may also be liable for discrimination within the meaning of Title VII if Johnson was subjected to a hostile work environment based on his race. To recover, Johnson must show that: (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe and pervasive so as to alter the conditions of his environment and create a hostile or abusive working environment; and (4) there is a basis for employer liability. Mason v. Southern Illinois Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000), citing Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). In cases involving only allegations of co-worker harassment, as opposed to harassment by a supervisor, the employer is liable for a hostile work environment only when the employee shows that it has "been negligent either in discovering or remedying the harassment." Id.
Finally, Johnson claims that although he resigned his employment, he was actually constructively discharged. The term "constructive discharge" refers to a situation where an employee quits under circumstances where the working conditions made remaining with the employer intolerable. Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998). Establishing constructive discharge is a two-step process. Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 877 (7th Cir. 1999). First, Johnson must show that his working conditions were so intolerable that a reasonable person would have been compelled to resign. Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996). Second, the conditions must be intolerable because of unlawful discrimination. Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998). With these standards in mind, the Court will now address Johnson's claims.
III. DISCUSSION A. FAILURE TO PROMOTE 1. The Timeliness Of Johnson's Claims
Johnson's first claim is that Avis discriminated against him on several occasions when it failed to promote him to a shift supervisor position. According to Johnson, this happened four different times — twice in 1997 and then two more times in 1999. The Court's first task is to determine which, if any, of these claims are timely. Avis argues that because Johnson did not file a charge of discrimination with the Equal Employment Opportunity Commission until June 7, 1999, any alleged discrimination that occurred more than 300 days prior (or before August 11, 1998) is time-barred. Avis is correct that in Indiana claimants are required to file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory act. See Graham v. Mechanics Laundry Supply Co. of Indiana, Inc., 2000 WL 760703, *11 (S.D.Ind. June 8, 2000) (noting that in a deferral state such as Indiana, a plaintiff usually must file this charge within 300 days of the occurrence of the event that forms the basis of the Title VII complaint), citing 42 U.S.C. § 2000e5(e)(1) and Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 445 (7th Cir. 1994) (Indiana case). Accordingly, Johnson's claims that accrued more than 300 days before June 7, 1999 — in other words, the 1997 promotion decisions — would ordinarily be time-barred.
Johnson seeks to avoid the timeliness problem on several grounds. First, he argues that Avis' repeated denials of promotions amounted to a continuing violation. Johnson contends that his claims fall within a category of continuing violations where an employer's decisions — usually about hiring and promotions — take place "over a period of time making it difficult to determine the actual date of the allegedly discriminatory act." See Johnson's Answer Brief at 11 , citing Jones v. Merchants National Bank Trust Co. of Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994). In such cases, the statute of limitations begins "when the plaintiff knows that the decision has been made." Id. Here, Johnson obviously knew of the 1997 promotion decisions well before August 1998. In fact, Johnson complained to the OFCCP in February 1998 that the promotion decisions were discriminatory. Accordingly, his reliance upon the continuing violation theory is misplaced.
Johnson also argues that his claims are saved by the doctrines of equitable estoppel and equitable tolling. See Johnson's Answer Brief at 14-16. It is well established that the EEOC charge-filing requirement is not a jurisdictional prerequisite but rather a statute of limitations that his subject to equitable tolling and equitable estoppel. Hentosh v. Herman M. Finch Univ. of Health Sciences/Chicago Med. Sch., 167 F.3d 1170, 1174 (7th Cir. 1999), citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Equitable estoppel, also known as fraudulent concealment, "is available if the defendant takes active steps to prevent plaintiff from suing in time." Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001), citing Jackson v. Rockford Housing Auth., 213 F.3d 389, 394 (7th Cir. 2000). Johnson has presented no evidence that Avis took any steps to prevent him from suing in time or to otherwise cause him to sleep on his rights. Although he claims Avis repeatedly promised him promotions, the record does not support such an assertion. At best, Johnson has shown that Avis promised to consider him for upcoming promotions and then failed to do so. Even assuming that were the case, there is no evidence that the alleged misrepresentation somehow kept Johnson from suing in time. Without such evidence, the doctrine of equitable estoppel is inapplicable.
Johnson also argues that his claims are saved by the doctrine of equitable tolling. Under that doctrine, a plaintiff "may toll the statute of limitations if, despite all due diligence, he is unable to obtain enough information to conclude that he may have a discrimination claim." Id. at 373. Again, Johnson admits that he complained to the OFCCP in February 1998 that Avis' decisions to deny him promotions in 1997 were discriminatory. As a result, he had sufficient information to file a charge of discrimination and the doctrine of equitable tolling is inapplicable.
In sum, Johnson's claims regarding the denial of promotions in 1997 are time-barred. Johnson was fully aware of the decisions at the time they were made, and he apparently possessed enough information by February 1998 to believe that they were discriminatory. As a result, the Court will only consider the merits of Johnson's claim with respect to the denials of promotion that occurred in 1999.
2. The 1999 Promotion Decisions
Johnson claims that Avis discriminated against him when it hired Boyer and Noojin as shift managers in 1999. The parties agree that the Court should analyze Johnson's failure-to-promote claims under the indirect, burden-shifting method of proof established in McDonnell Douglas. 411 U.S. at 802. Avis has moved for summary judgment on the narrow issue of whether Johnson can establish a prima facie case, the elements of which include the following: (1) that he was a member of a protected class; (2) he applied for and was qualified for the position he sought; (3) he was rejected for the position; and (4) the person promoted had similar or lesser qualifications for the job. Peal v. Cuomo, 2000 WL 1902182, *8 (S.D.Ind. November 20, 2000), citing Ghosh v. Indiana Dept. of Environmental Mgmt., 192 F.3d 1087, 1090-91 (7th Cir. 1999); Sample v. Aldi Inc., 61 F.3d 544, 548 (7th Cir. 1995), disapproved on other grounds, Leffel v. Valley Financial Services, 113 F.3d 787, 793 (7th Cir. 1997). Avis contends that Johnson's claim fails because both Boyer and Noojin were more qualified for the position.
It appears that Johnson misunderstands the nature of Avis' argument. Instead of focusing upon the elements of his prima facie case, he instead jumps straight to the analysis of whether Avis' reasons for not promoting him were pretextual. In so doing, he argues primarily that he was as qualified or more qualified than Boyer and Noojin for the position, so Avis' reason for denying him the job must be dishonest. Because Johnson submitted evidence and argued that he had similar or more qualifications that Boyer and Noojin, the Court will consider whether he has established at least a genuine issue of material fact on that element of his prima facie case.
The Court recognizes the notion that the prima facie analysis sometimes "collapses" into the pretext analysis. For example, in Peal Judge Hamilton noted that "the issues of whether plaintiff is sufficiently qualified to sustain a prima facie case and whether defendant's qualification-based reasons for not promoting plaintiff are pretextual `dovetail' together." 2000 WL 1902182 at *8, citing Roberts v. Separators, Inc., 172 F.3d 448, 451 (7th Cir. 1999) (explaining how evidence regarding an employee's work performance can be considered in context of plaintiff's prima facie case or in context of whether defendant has established a legitimate, nondiscriminatory reason for employment action).
It is undisputed that both Boyer and Noojin had college degrees, and that Johnson did not. Avis' own job advertisements confirm that the company indeed preferred — but did not require — a bachelor's degree. This is consistent with the fact that Avis management told Johnson on more than one occasion that it would consider him for the next shift manager position, indicating that the company did not consider a college degree to be essential for the position. Although Avis does not explain why a college degree is preferred, the Court need not concern itself with that issue for purposes of this motion.
It is also undisputed that Boyer and Noojin had prior supervisory and management experience. Boyer was a branch manager of a rental car agency for three years, and Noojin was a manager at another company for two years. Both had experience hiring, firing, and disciplining employees. Johnson also had experience, however, in disciplining and evaluating employees while he was a lead bus driver. According to documents in Johnson's employment file, it appears that he was a lead bus driver for approximately 10 years. Thus, it appears that Johnson had several more years of managerial-type experience than either Boyer or Noojin. It is also undisputed that Avis was a "firm believer in `promoting from within.'" Avis also told Johnson that it promoted "those employees who gave excellent customer service." Indeed, when Johnson first applied for the shift manager position back in 1997, Fregeau and Booher told him they would observe him dealing with customers and then consider his application. Johnson received some type of award in 1996 and in 1997 for his performance, and Avis has not provided any evidence that he had any problems with customer service. In light of an espoused policy to hire from within, and Avis' emphasis on promoting employees who give excellent customer service, a jury could reasonably conclude that Johnson's 10 years of management-type experience at Avis would be "similar" to Boyer's and Noojin's combined managerial experience of five years.
In sum, the Court concludes that there is sufficient evidence in the record to create a genuine issue of material fact on the issue of whether Johnson was at least similarly qualified as Boyer and Noojin for the shift manager positions. That is not to say that Avis did not have a legitimate reason for discounting Johnson's experience, or for absolutely preferring a college degree regardless of the candidates' underlying experience. As the Seventh Circuit has repeatedly acknowledged, courts are not to sit as super-personnel departments that encroach on an employer's ability to make business decisions. See Wade v. Lerner New York, 2001 WL 210178, *5 (7th Cir. March 5, 2001) (noting that court will not sit as a "`superpersonnel department'" debating the merits of legitimate, nondiscriminatory criteria a business chooses to employ in determining which of its employees will receive promotions). But whether Avis had a legitimate reason for choosing Boyer and Noojin — and whether there is any evidence that reason was false — is simply not before the Court. Because Johnson has submitted enough evidence to create a genuine issue of material fact on his prima facie case, Avis' motion for summary judgment on his failure to promote claim is DENIED.
B. RETALIATION
To establish a prima facie case of retaliation under Title VII, Johnson must present sufficient evidence that (1) he engaged in statutorily protected activity, (2) he suffered an adverse employment action, and (3) there is a causal link between the protected expression and the adverse action. Russell v. Board of Trustees of the Univ. of Illinois at Chicago, 2001 WL 225051 (7th Cir. March 8, 2001). Although it is not entirely clear from his brief, Johnson appears to be claiming that Avis changed his work schedule and denied him promotions in retaliation for his complaints to the OFCCP in 1998.
Avis contends that changing a work schedule is not an adverse employment action, and even if it were the claim is time-barred. The Court need not resolve that issue, however, because Johnson has presented no evidence that anyone at Avis was aware of Johnson's protected activity at the time it made the scheduling changes or denied him promotions. Johnson has provided a copy of the conciliation agreement between Avis and the OFCCP. That agreement makes no mention of Johnson's complaints. If Avis had no knowledge of Johnson's complaints to the OFCCP, it could not have retaliated against him for such activity. See Maarouf v. Walker Manufacturing Co., 210 F.3d 750, 755 (7th Cir. 2000) (absent knowledge on decisionmaker's part of protected activity, plaintiff lacks a causal link between the termination and the complaint of discrimination). Because Johnson has provided no evidence establishing a causal link between his protected activity and the alleged adverse actions, the Court GRANTS Avis' motion for summary judgment on Johnson's retaliation claim.
C. HOSTILE WORK ENVIRONMENT
Johnson also claims that Avis subjected him to racial harassment that amounted to a hostile work environment. As already noted, Avis may be liable under Title VII if it subjected Johnson to a hostile work environment based on his race. To recover, Johnson must show that: 1) he was subject to unwelcome harassment; 2) the harassment was based on his race; 3) the harassment was severe and pervasive so as to alter the conditions of his environment and created a hostile or abusive working environment; and 4) there is a basis for employer liability. Mason, 233 F.3d at 1043.
Title VII is not a general civility code, see Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), and is not "designed to purge the workplace of vulgarity." Baskerville v. Culligan Int'l. Corp., 50 F.3d 428, 430 (7th Cir. 1995). To be actionable under Title VII, any harassment must be based upon a protected characteristic and must be "sufficiently severe or pervasive to `alter the conditions of [the victim's] employment and create an abusive working environment.'" Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000), quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Whether the harassment is sufficiently severe or pervasive depends on all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23-24 (1993).
Simple teasing, offhand comments, and isolated incidents — unless extremely serious — do not establish actionable harassment. Faragher, 524 U.S. at 788. The alleged harassment must be both objectively and subjectively offensive. That is, a reasonable person must find the environment hostile or abusive and the plaintiff must actually perceive it as offensive. Garton v. Thomson Consumer Electronics, Inc., 2000 WL 1617753, *7 (S.D.Ind. October 25, 2000). When determining whether a hostile environment exists, the Court must consider the totality of the circumstances. Gordon v. Southern Bells, Inc., 67 F. Supp.2d 966, 977 (S.D.Ind. 1999). However, "relatively isolated instances of non-severe misconduct will not support a claim of hostile work environment." Silk v. City of Chicago, 176 F.3d 390, 398 (7th Cir. 1999).
Although Faragher and Hostetler were sexual harassment cases, the standards under Title VII for harassment are the same whether it was based upon sex or race. See, e.g., Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 432 n. 2 (2nd Cir. 1999); Gipson v. KAS Snacktime Co., 171 F.3d 574, 578 (8th Cir. 1999).
During his 14-year career with Avis, Johnson witnessed two incidents in which Avis employees made racial comments. On one occasion, a co-worker said that when blacks leave the workplace, they should be with blacks and whites should be with whites. On another occasion, a service agent named "Bill" once referred to professional boxer Mike Tyson as a "rich nigger" in Johnson's presence. Both comments occurred no later than 1997, and after Johnson complained to Avis management he had no other problems with his co-workers. There is no evidence that any of Johnson's supervisors ever made any racial slurs.
Johnson relies upon the experiences of other Avis employees, including Murff, Owens, and Fortson, to support his hostile work environment claim. Johnson's Response Brief at 26. Both Murff and Owens began working at Avis after Johnson had left, and Murff admits she never even met Johnson. This Court has previously noted that where a plaintiff maintains he was aware of a defendant's hostile treatment of other employees in a work environment he will not be precluded from having those other allegedly discriminatory incidents be considered in the determination of whether a work environment was objectively hostile. Van Jelgerhuis v. Mercury Finance Co., 940 F. Supp. 1344, 1361 (S.D.Ind. 1996). In this case, however, Johnson could not have been aware of the treatment of Murff and Owens because it allegedly took place after he no longer worked at Avis. Moreover, Fortson complains of conduct that occurred in 1993, approximately six years before Johnson resigned from Avis. The gap of time between Fortson's experience at Avis and Johnson's resignation significantly lessens the impact and relevance of any such evidence. In sum, even considering the two racial comments that occurred sometime before 1997, Johnson has failed to present sufficient evidence showing that his workplace was "permeated with discriminatory intimidation, ridicule or insult that is sufficiently severe or pervasive to alter the conditions of [Mr. Johnson's] employment and create an abusive working situation." Johnson v. City of Fort Wayne, Indiana, 91 F.3d 922, 938 (7th Cir. 1996). As a result, the Court GRANTS Avis' motion for summary judgment on Johnson's hostile work environment claim.
D. CONSTRUCTIVE DISCHARGE
Johnson claims that after Avis changed his work schedule, he was initially forced to go to part time so that he could keep his job at American. When Avis later twice denied him promotions in April 1999, he decided that he would retire the following month. Johnson now claims that the conditions at Avis were so bad that he was forced to retire. In other words, he claims that he was constructively discharged.
As already discussed, establishing constructive discharge is a two-step process. Simpson, 196 F.3d at 877. First, Johnson must show that his working conditions were so intolerable that a reasonable person would have been compelled to resign. Rabinovitz, 89 F.3d at 489. Second, the conditions must be intolerable because of unlawful discrimination. Drake, 134 F.3d at 886. Working conditions for constructive discharge must be even more egregious than the high standard for hostile work environment because "in the `ordinary' case, an employee is expected to remain employed while seeking redress." Wieland v. Dept. of Transportation, State of Indiana, 98 F. Supp.2d 1010, 1025 (N.D.Ind. 2000), citing Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044 (7th Cir. 2000), cert. denied, 121 S.Ct. 777 (2001). The Seventh Circuit has found a constructive discharge when the plaintiffs' boss constantly peppered them with racist comments, brandished a pistol, and held it to one plaintiff's head. Taylor v. Western S. Life Ins. Co., 966 F.2d 1188, 1191 (7th Cir. 1992). Similarly, in Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989), the plaintiff established constructive discharge where "repeated instances of grossly offensive conduct and commentary" culminated with an incident during which a co-worker showed the plaintiff a racist pornographic photograph, told her that she was hired to perform the task depicted in the photograph, grabbed the plaintiff, and threatened to kill her.
There is no similar evidence in this case. Instead, Johnson's situation appears to more closely resemble that involved in Tokheim, where Ms. Lindale's supervisor had promised her that she would be promoted within a year of her starting employment. 145 F.3d at 954. After a year had passed, her supervisor recommended her for a promotion but nothing happened. Instead, her employer hired two males. Id. Seven months later, Lindale informed her supervisor that she still had not heard about her promotion. He promised to look into the matter but apparently never did. Id. Two months later, her employer posted a notice of a job opening, and plaintiff applied. Three weeks later she learned that her employer had placed an advertisement in the local newspaper for the position, specifying qualifications that she had. Id. After getting the impression that she would not be considered for the position, Lindale resigned. Id. at 955.
The Seventh Circuit held that Lindale's employer had not constructively discharged her, because "a reasonable employee would not have considered a failure to be promoted an event that made her working conditions intolerable." Id. at 956. The Court also noted that there was no indication that the failure to promote Lindale was the "handwriting on the wall and she quit just ahead of the fall of the axe." Id. In Johnson's case, there is no evidence that the denials of promotions were the "handwriting on the wall" and that Avis was on the verge of terminating his employment. Although he may have been upset about the changes to his schedule and his inability to secure a promotion, there simply is no evidence that the conditions at Avis were so intolerable that a reasonable person would have felt compelled to resign. As a result, the Court finds that Johnson was not constructively discharged and is not entitled to seek back pay as a result of his resignation. This ruling does not prevent Johnson, however, from seeking back pay as a result of the denials of promotions.
Avis also claims that because Johnson's combined income between Avis and American was more than he would have made as a shift manager, he is precluded from seeking backpay for his failure to promote claims. This argument is without merit. Avis would still be potentially liable for difference between what Johnson would have earned as a shift manager and what he was earning as a bus driver at Avis, regardless of the income he received from American or any other third party source. Avis also argues that Johnson failed to mitigate his damages because he did not seek full-time work at American. To the extent Avis raises this defense only on the constructive discharge claim, the Court has already determined there was no constructive discharge so it is moot. If Avis is raising this defense with respect to Johnson's failure to promote claims, the motion is DENIED. Indeed, even assuming Johnson's duty to mitigate required him to seek full-time employment, Avis has produced no evidence of the availability of such jobs. See, e.g., E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815, 818-819 (7th Cir. 1990) ("We agree with the district court that, because Gurnee failed to establish that there was a reasonable chance the claimants could have found comparable employment, the defendant failed to sustain its burden of proof"), citing Gaddy v. Abex Corp., 884 F.2d 312, 319 (7th Cir. 1989) (court did not abuse its discretion in rejecting employer's position that claimant failed to mitigate damages where employer failed to show there was a reasonable probability claimant would have received an offer had she pursued job opportunities).
IV. CONCLUSION
Johnson has failed to present sufficient evidence from which the Court could find a genuine issue of material fact on his claims for retaliation, hostile work environment, and constructive discharge. Accordingly, the Court GRANTS Avis' motion for summary judgment on those claims. The Court has also determined that Johnson's claims for failure to promote in 1997 are time-barred. A genuine issue of material fact does exist, however, with respect to Johnson's claims regarding Avis' failure to promote him in 1999. The Court therefore DENIES Avis' motion on those claims. To the extent Avis seeks summary judgment based upon Johnson's failure to mitigate his damages after Avis denied him promotions in1999, the Court DENIES its motion.Finally, Avis has filed a motion to strike and seeks sanctions because Johnson filed a surreply brief that allegedly violated Local Rule 56.1. Because the evidence and argument presented in Johnson's surreply brief — even if considered by the Court — would not have changed the outcome of Avis' summary judgment motion, the Court DENIES the motion to strike as moot. In addition, the Court finds that sanctions are inappropriate because there is no evidence that Johnson's counsel pursued the suit through the use of multiplicative litigation tactics that were harassing, dilatory, or otherwise unreasonable and vexatious. Accordingly, the Court DENIES Avis' motion for sanctions under 28 U.S.C. § 1927.
IT IS SO ORDERED.