Opinion
Cause No. 1:03-CV-00351.
March 25, 2005
OPINION AND ORDER
I. INTRODUCTION
Plaintiff Moses Jones, who is pro se, brings this suit against Defendant Zemco Manufacturing, Inc., alleging racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Jones, an African American, believes that Zemco discriminated against him by requiring him, at a lower rate of pay, to run more machines than similarly situated Caucasian employees. Jones further alleges that after he complained about the discrimination and filed a Charge of Discrimination with the EEOC, Zemco retaliated against him by denying him overtime and terminating his employment pursuant to a workforce reduction. (Compl. ¶ 5.)
Accordingly, subject matter jurisdiction arises under 28 U.S.C. § 1331. Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
Zemco moves for summary judgment on all of Jones's claims. (Docket # 34.) Upon review of the record, Jones has failed to provide sufficient evidence of discrimination or retaliation; therefore, Zemco's motion will be GRANTED.
II. FACTS AND PROCEDURAL HISTORY
For summary judgment purposes, the facts are recited in the light most favorable to Jones, the nonmoving party. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
Zemco employed Jones as a Machine Operator in the Belden/Stamp/Tap department from August 25, 1997, through January 10, 2003. (Compl. ¶ 5.) He earned $9.50 per hour (Federspiel Aff. ¶ 6) and spent the majority of his time on the Belden machine, although he occasionally ran Shackle and CNC machines (Jones Dep. at 39, 83; Aff. of Tom Latham ¶ 4). Between March 1, 2000, and October 18, 2002, Jones received seven disciplinary warnings, both oral and written, for offenses such as insubordination, wandering from his work area, threatening a supervisor, excessive absenteeism, poor productivity, and abusive conduct. (Federspiel Aff. ¶ 15; Jones Dep. at 76, 79-82.)
A Belden machine is an older multi-spindle drilling unit used for various parts, and a Shackle machine is an older unit used to drill holes for specific parts. A CNC machine is a newer, faster, more efficient, programmable unit that performs multiple functions, including the functions of the Belden and Shackle machines. (Latham Aff. ¶ 5.)
On October 19, 2002, Jones was assigned to run steel simultaneously on two Shackle machines and two Milling machines. (Latham Aff. ¶¶ 7, 8; Jones Dep. at 45-46.) Because the machines process steel at a slower rate than aluminum, Zemco requires that employees who run steel operate two Shackle machines and two Milling machines, while employees who run aluminum operate only two Shackle machines. ( Id.) Jones refused to run the four machines and opted to go home for the day, receiving an Employee Warning Report for insubordination when he returned to work on October 21, 2002. (Federspiel Aff. ¶ 15; Latham Aff. ¶ 8; Jones Dep. at 82.)
The term "run" is used by both parties in the context of an employee operating a machine that processes a raw material.
Jones asserts in his Complaint that he complained to Zemco about discrimination, but has failed to provide any specific information or evidence about such complaints, other than the two EEOC Charges of Discrimination. (Compl. ¶ 5, Ex. A (EEOC Charge No. 24DA300096 dated November 26, 2002, hereinafter referred to as "Charge No. 1"), Ex. B. (EEOC Charge No. 24DA300199 dated February 12, 2003, hereinafter referred to as "Charge No. 2").) Nevertheless, Jones contends that he was retaliated against when he was denied overtime work on or about November 16, 2002 (a date which precedes Jones's filing of Charge No. 1), while Caucasian employees worked at least seventeen hours of overtime. (Compl. ¶ 5; Jones Dep. at 49-53.) Zemco denies it refused overtime work to Jones for any discriminatory or unlawful reason; rather, it contends that Jones refused to perform the overtime work assigned to him on October 19, 2002, and, if overtime work was not offered to Jones at other times, it was because there was no demand for production in the Belden or Schackle departments for the parts produced on the machine that Jones ran. (Latham Aff. ¶¶ 9, 10; Jones Dep. at 50-51.)
More specifically, Jones states that he observed a Caucasian named Roosevelt Byrd running his part when he stopped by Zemco that day. (Jones Dep. at 53.) Zemco states it has no record of employing an individual named Roosevelt Byrd, or anyone with a similar name, on or about November 16, 2002 (Federspiel Aff. ¶ 19; Latham Aff. ¶ 11; Aff. of Roger Sheets ¶ 11); but, perhaps Jones is referring to "Bryce Rosenfeld," a Caucasian employee from Zemco's list of employees who were retained (Federspiel Aff. ¶ 16). In the final analysis, as explained infra, the result remains the same.
On November 26, 2002, Jones filed Charge No. 1 with the EEOC, claiming discrimination based on race and sex, and unequal pay, arising out of the alleged denial of overtime by Zemco and the events that occurred on October 19, 2002. (Charge No. 1.) Specifically, Jones alluded to one comparator, Cathy Emmons, a Caucasian coworker who he alleged ran only two machines, but earned $3.00 more per hour. (Jones Dep. at 44-48.) Emmons began working in the Shackle department at Zemco on August 28, 1996, and her hourly wage was $11.00 per hour. (Federspiel Aff. ¶ 8; Latham Aff. ¶ 6.) Her duties included running aluminum on two Shackle machines. (Latham Aff. ¶ 7.)
In late 2002, Kenworth, presumably a significant customer of Zemco, notified Zemco that it was cancelling orders for four parts, two of which were produced by the Belden machine normally operated by Jones. (Federspiel Aff. ¶ 10; Latham Aff. ¶ 12; Sheets Aff. ¶ 8.) Kenworth's decision caused Zemco to reassign certain production to the CNC department, making CNC operators responsible for the majority of Zemco's total production. (Latham Aff. ¶ 13, 14; Sheets Aff. ¶¶ 9, 10.) As a result of the anticipated loss of revenue from the Kenworth business, Zemco implemented a workforce reduction in order to reduce its labor expenses. (Federspiel Aff. ¶ 11.) On January 10, 2003, Zemco laid off three temporary employees, Shawnte Owens (Caucasian), Rudy Hernandez (Hispanic) and Ken Bartet (Caucasian), and three full-time employees, Terry Bonner (Caucasian), Carmen Reyes (Hispanic) and Jones. ( Id. ¶ 12.) Nine employees with less seniority than Jones retained their employment. ( Id. ¶ 16.) In making the decision, Zemco contends that (1) it gave priority consideration to those employees who had the skills necessary to most efficiently perform the remaining work, taking into account the shift to more CNC production; and (2) each employee it retained had more CNC experience or a different set of skills than Jones. ( Id.) Although Jones had more seniority than some Caucasian employees retained by Zemco, those employees had valuable skills that he lacked, such as programming, reading a blueprint, performing a set-up, offsetting or fixing a CNC machine, secretarial skills or a commercial driver's license. (Id. ¶ 17; Jones Dep. at 51, 86.) Furthermore, Jones's extensive disciplinary history was also factored into Zemco's decision to lay off Jones. (Federspiel Aff. ¶¶ 14, 15.)
The following Zemco employees who had less seniority than Jones were retained: Doug Wulff (Caucasian), a first shift operator responsible for CNC set-up work; Bryce Rosenfeld (Caucasian), a first shift operator responsible for a unique horizontal CNC Milling machine; Chris Noyes (Caucasian), a first shift CNC programmer; Hoang Hunyh (Asian), a first shift CNC programmer; Edwin Effrin (Caucasian), a part-time driver with a commercial driver's license; Raymond Britt (African-American), an employee in the Shackle Department who runs multiple machines on a consistent basis with frequent and repetitive lifting and handling of steel parts; Gloria Sellers (Caucasian), an employee in the same department as Jones, but who also has custodial and office skills and performs receptionist, telephone and filing duties; Tom Latham (Caucasian), a Production Manager who has extensive supervisory experience; and Roger Sheets (Caucasian), a Floor and CNC Supervisor who has extensive supervisory and production experience, and can program and set-up CNC machinery. (Federspiel Aff. ¶ 16.)
Jones filed Charge No. 2 with the EEOC on February 12, 2003, claiming that Zemco retaliated against him when it terminated him pursuant to its workforce reduction. (Charge No. 2.)
III. STANDARD OF REVIEW
Summary judgment may be granted only if there are no disputed genuine issues of material fact. Payne, 337 F.3d at 770. When ruling on a motion for summary judgment, a court "may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Id. The only task in ruling on a motion for summary judgment is "to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. Am. Hoechst, 24 F.3d 918, 920 (7th Cir. 1994). If the evidence is such that a reasonable factfinder could return a verdict in favor of the nonmoving party, summary judgment may not be granted. Payne, 337 F.3d at 770. A court must construe the record in the light most favorable to the nonmoving party and avoid "the temptation to decide which party's version of the facts is more likely true[,]" as "summary judgment cannot be used to resolve swearing contests between litigants." Id. However, "a party opposing summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for trial." Id. at 771.
IV. DISCUSSION
A plaintiff alleging employment discrimination can contest summary judgment by using either the direct or indirect method of proof. King v. Preferred Technical Group, 166 F.3d 887, 891-92 (7th Cir. 1999). The direct method requires the plaintiff to produce enough evidence, whether direct or circumstantial, Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994), to create a triable issue of whether the adverse employment action had a discriminatory motivation, Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997).
Direct evidence is essentially "an admission by the decision-maker that his actions were based on the prohibited animus." Radue v. Kimberly Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). In the absence of direct evidence, circumstantial evidence must compose "a convincing mosaic of discrimination against the plaintiff." Troupe, 20 F.3d at 737. This circumstantial evidence is of three general types: (1) suspicious timing, ambiguous statements, or behavior toward other employees; (2) evidence that similarly situated employees were treated differently; or (3) evidence that the employee did not deserve termination and that the employer's reason for termination is a pretext for discrimination. Volovsek v. Wis. Dep't of Agric., Trade and Consumer Prot., 344 F.3d 680, 689-90 (7th Cir. 2003).
The indirect method is the well-known McDonnell Douglas burden-shifting framework. E.g., King, 166 F.3d at 891-92. Here, the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). For Title VII claims, the prima facie case requires four showings: (1) the plaintiff was a member of a protected class; (2) the plaintiff was meeting the employer's legitimate expectations or was qualified for the job in question; (3) the plaintiff suffered an adverse employment action; and (4) similarly-situated employees who were not members of the plaintiff's protected class were treated more favorably. Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995); see also Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 784 (7th Cir. 2004). If the plaintiff successfully establishes a prima facie case, the burden then shifts to the defendant to provide a legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at 802. Once the defendant has done so, the burden shifts back to the plaintiff to show that the proffered reason is merely a pretext for discrimination. Id. at 804.
Jones has not proffered any direct or circumstantial evidence of discrimination or retaliation that would support a claim under the direct method of proof, nor is any apparent from the record. Therefore, the Court will analyze Jones's claims under the indirect method.
A. Jones's Claim of Racial Discrimination Fails
Jones believes that he was asked to run, at a lower rate of pay, more machines than similarly situated Caucasian employees and, therefore, that he was discriminated against by Zemco because of his race. For purposes of summary judgment, Defendant concedes that Jones has established the first element of his prima facie case of racial discrimination. Jones fails on the remaining three elements.
Jones cannot establish the second element, that he was meeting the employer's legitimate expectations, because of his extensive disciplinary history with Zemco. Cengr v. Fusibond Piping Systems, Inc., 135 F.3d 445, 452-53 (7th Cir. 1998) (holding that plaintiff failed to establish he was meeting employer's legitimate expectations at time of termination because of numerous prior violations of employer's policies by plaintiff). While Jones represented on Charge No. 1 that he "never received any verbal or written reprimands or disciplinary action prior to this incident," the eight disciplinary warnings in his employment file, two of which occurred within the ten month period preceding the workforce reduction, tell quite a different story. See Peele v. Country Mut. Ins. Co., 288 F.3d 315, 329 (7th Cir. 2002) (stating that the issue is not the employee's past performance, but whether the employee was performing well at the time of the adverse employment action). Jones has produced no evidence to contradict Zemco, other than offering his own perception that his work was satisfactory, which was corroborated by one past coworker. (Mot. in Resp. to the Latest Order Filed in this Cause at 2; Aff. of Larry Rivers at 1.) These assertions are insufficient to avert summary judgment. Peele, 288 F.3d at 329 (finding that statements by coworkers in support of plaintiff's satisfactory performance are insufficient to create a material issue of fact); see also Mills v. First Fed. Sav. Loan Ass'n of Belvidere, 83 F.3d 833, 843-44 (7th Cir. 1996) (determining that employee's own assertions of satisfactory performance are insufficient to contradict employer's detailed evidence of employer's displeasure with employee's performance).
Jones further fails to establish the third element of the prima facie case, that he suffered an adverse employment action. Jones merely received a written warning when he refused to operate the four machines and walked off the job on October 19, 2002, and he has not produced evidence that these disciplinary measures enforced against him were more severe than those enforced against a person not in his protected class. See Davis v. Christ Hosp., 1988 WL 129978 *3 (N.D. Ill. Nov. 30, 1988). Furthermore, the alleged denial of overtime work by Zemco in one instance on or about November 16, 2002, if indeed it occurred, would likely not rise to the level of an adverse employment action. See Haugerud v. Amery School Dist., 259 F.3d 678, 692 (7th Cir. 2002) (finding that plaintiff must show materially adverse change in the terms, conditions, or privileges of plaintiff's employment to support claim of adverse employment action); Mannie v. Potter, 394 F.3d 977, 983-84 (7th Cir. 2004) (determining that plaintiff did not show adverse employment action when she failed to produce evidence that she requested, and was denied, overtime); see also Basith v. Cook County, 241 F.3d 919, 933 (7th Cir. 2001). Jones has simply not alluded to any other specific incidents or circumstances which could be adverse employment actions.
In Charge No. 2, Jones asserted a claim of retaliation, not racial discrimination, in connection with his termination; therefore, any claim of racial discrimination in connection with Jones's termination is barred; however, even if he had made a claim of racial discrimination in connection with his termination, and thus satisfied the third element, he still fails to satisfy the second and fourth elements of the prima facie case.
Finally, Jones fails to provide sufficient evidence to establish the fourth element, that similarly situated persons not in the protected class received more favorable treatment than he did. To be similarly situated, two employees must have "dealt with the same supervisor, [been] subject to the same standards, and . . . engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Radue, 219 F.3d at 617-18. While Jones contends in his Complaint that he frequently had to run, at a lower rate of pay, more machines than similarly situated Caucasian employees, he has only articulated one particular employee as his comparator and one particular instance in support of this allegation. (Jones Dep. at 43, 44, 48.)
Jones alleges that on October 18, 2002, Emmons (Caucasian) ran aluminum on two Shackle machines and was paid $3.00 more per hour, while Jones was assigned to run steel on four machines. In actuality, Emmons and Jones were subject to the same Zemco standards: that an employee who runs aluminum, a faster process, operates two Shackle machines, while an employee who runs steel, a slower process, operates four machines. Furthermore, Emmons made only $1.50 more per hour than Jones, not the $3.00 more that Jones alleges, and Emmons had more seniority and consistently higher productivity levels than Jones. (Latham Aff. ¶ 7.) As a matter of policy, Zemco pays its employees an hourly wage based upon a multitude of factors, including the type of work, level of skill, education, experience and overall job performance. In light of these facts, Jones utterly fails to substantiate his claim that Emmons was treated more favorably. See Patt v. Family Health Sys., Inc., 280 F.3d 749, 752-53 (7th Cir. 2002) ("[y]ears of service and prior experience are legitimate, non-discriminatory reasons for a wage disparity.").
For comparison, Zemco includes the wages of other Caucasian employees in the record: Shawnte Owens and Gloria Sellers earned $9.00 per hour as employees in the Belden/Stamp/Tap department; Giulio Barile earned $9.50 per hour in the Shackle department; Edwin Effrin earned $8.00 per hour as a driver; and Doug Wulff earned $9.35 per hour, and Bryce Rosenfeld earned $9.50 per hour, as CNC operators. (Federspiel Aff. ¶ 9.)
As Jones has failed to establish three elements of the required prima facie case of racial discrimination, there is no need to consider pretext, Peele, 288 F.3d at 327, and Zemco is entitled to summary judgment on this claim.
While Charge No. 1 also alleged discrimination based upon sex under Title VII and equal pay under the Equal Pay Act of 1963, these claims were not specifically asserted in his Complaint and he has not provided any evidence to support such claims; therefore, the Court deems Jones has waived any claim of discrimination arising out of sex or equal pay.
In addition, Zemco is entitled to summary judgment on Jones's claim of racial discrimination under 42 U.S.C. § 1981. Jones was an at-will employee; the Court does not need to delve into whether at-will employment rises to the level of a contractual relationship, an element necessary to support a Section 1981 claim, because even if it did, Jones's claim would fail for the same reasons as his Title VII claim. Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1033-35 (7th Cir. 1998). The same standards governing liability under Title VII also apply to Section 1981. ( Id.)
B. Jones's Claims of Retaliation Fail
Jones alleges two incidents of retaliation: (1) the denial of overtime work on or about November 16, 2002; and (2) the termination of his employment pursuant to the workforce reduction. Retaliation claims, like other discrimination claims, follow the McDonnell Douglas model as clarified by the Seventh Circuit in Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 641, 644 (7th Cir. 2002). First, the plaintiff must establish a prima facie case by showing that (1) after engaging in protected activity; (2) only he, and not any similarly situated employee who did not file a charge; (3) was subjected to an adverse employment action; (4) even though he was performing his job in a satisfactory manner. Id. If this case is made, the defendant must proffer a legitimate, nondiscriminatory reason for the adverse employment action. Id. The burden then falls on the plaintiff to show that the proffered reason is pretextual. Id.As to the denial of overtime work on November 16, 2002, Jones fails across the board to establish any of the required elements. First, Jones did not provide evidence that he complained to anyone at Zemco about his alleged discrimination, and the incident predated his filing of Charge No. 1. As to the second element, Jones claims that, after he was denied overtime work under the guise that there were no parts to run on his machine, he observed a Caucasian worker named Roosevelt Byrd running his machine. Jones, however, failed to produce any evidence to show how this employee was similarly situated to him, such as having common supervisors, similar duties, or comparable skills. Jones further fails to establish the third element because, as discussed supra in Section IV(A), the denial of overtime work in one instance would likely not rise to the level of an adverse employment action; furthermore, Jones has failed to demonstrate the extent of any financial loss he may have suffered from the denial of such work for purposes of determining its materiality. See Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 273-74 (7th Cir. 1996). In regard to the fourth element, the Court again refers to the hefty number of disciplinary warnings in Jones's employment file discussed supra in Section IV(A).
See supra n. 5.
As to Jones's claim of retaliation in connection with his termination, he satisfies the first element, that he complained about the alleged discrimination, since he previously filed Charge No. 1, and the third element, that he was subject to an adverse employment action. However, Jones fails to satisfy the second element, that he was similarly situated to the employees retained by Zemco. Jones contends that he was retaliated against because nine employees retained in the workforce reduction had less seniority than Jones, but, again, he fails to produce any evidence as to how these employees were similarly situated to him, such as having common supervisors, similar duties, or comparable skills. Rather, Jones does just the opposite; he openly admits that he lacks the skills that these retained employees possess. (Jones Dep. at 51, 86, 90-92.) Similarly, Jones fails to satisfy the fourth element, that he was performing his job in a satisfactory manner, for the same reasons described above.
And, assuming, arguendo, that Jones was able to support a prima facie case of retaliation in connection with his termination, Zemco has articulated legitimate, nondiscriminatory reasons for Jones's termination. Zemco implemented a workforce reduction arising out of the cancellation of orders by a significant customer and selected Jones for lay off because of (1) his lack of skills and qualifications on CNC machinery in comparison to other less senior employees, and (2) his extensive disciplinary history. The burden then shifts to Jones to provide evidence that the workforce reduction itself was pretextual or by showing that Zemco's reasons for including Jones in the workforce reduction were pretextual. Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1014 (7th Cir. 2000). As long as Zemco honestly believed its reasons for terminating Jones, pretext has not been shown, even if its decision was mistaken, ill-considered or foolish. Franzoni v. Hartmarx Corp., 300 F.3d 767, 772 (7th Cir. 2002).
In examining the record, Jones absolutely fails to show pretext, as his mere speculation of pretext is insufficient. Grube v. Lau Indus., Inc., 257 F.3d 723, 730 (7th Cir. 2001). Furthermore, Jones does not offer any evidence that he has similar or superior qualifications in connection with CNC equipment in comparison to those employees with less seniority retained by Zemco; rather, as stated supra, he openly admits that he lacks such skills. Simply put, Jones was not the most qualified candidate for the positions remaining at Zemco after the workforce reduction. Williams v. United Technologies Carrier Corp., 310 F. Supp. 2d 1002, 1014-19 (S.D. Ind. 2004) (pretext not shown when employer chose candidate most qualified for the position). Accordingly, Zemco is entitled to summary judgment on Jones's claims of retaliation.
In addition, Zemco is entitled to summary judgment on Jones's claims of retaliation under 42 U.S.C. § 1981. See supra n. 10.