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finding plaintiff barred from raising new claims even though defendant was allegedly on notice of the claims from questions asked in deposition
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IP 86-1295-C
April 23, 1990
ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This cause comes before the court on defendant Indiana Bell Telephone Company's Motion for Summary Judgment. Plaintiff George J. Luddington, a black employee of Indiana Bell, filed a two-count complaint on November 3, 1986, against his employer for its alleged actions or inactions with respect to his promotion and transfer opportunities. In count I, Luddington alleges race discrimination and retaliation by Indiana Bell in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000-17. This court has jurisdiction over this claim pursuant to 42 U.S.C. § 2000e-59(f)(3). In count II, Luddington alleges that Indiana Bell denied Luddington the same right to make and enforce contracts as is enjoyed by white citizens of the United States in violation of 42 U.S.C. § 1981. This court has jurisdiction over the second claim pursuant to 28 U.S.C. § 1343.
I. Standard of Review
Summary judgment, pursuant to Federal Rule of Civil Procedure 56, is properly granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In making this determination, this court views the record in the light most favorable to the party opposing the motion. See Morgan v. Harris Trust & Sav. Bank, 867 F.2d 1023, 1026 (7th Cir. 1989) (per curiam). The moving party has the initial burden of demonstrating that absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (quoting Fed. R. Civ. P. 56(e)). "At the summary judgment stage the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. A court must enter summary judgment against the non-moving party if, after adequate time for discovery, the party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23, 106 S. Ct. at 2552.
Furthermore, a factual dispute must be outcome determinative to preclude summary judgment. Donald v. Polk County, 836 F.2d 376, 379 (7th Cir. 1988). Thus, the mere assertion of a factual dispute cannot defeat the motion for summary judgment. Anderson, 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202.
Summary judgment is frequently not an appropriate resolution in a Title VII case. See Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989); Powers v. Dole, 782 F.2d 689, 694 (7th Cir. 1986). However, summary judgment is not automatically inappropriate simply because issues of discriminatory motive or intent are raised. See Holland, 883 F.2d at 1312. As the Seventh Circuit has counselled, this court must approach a question of summary judgment in a discrimination case with special caution. Id. at 1313.
II. Background
Luddington, who has been employed by Indiana Bell since January 1966, was a Level 1 Supervisor at the time material to this litigation and had been since his promotion from an hourly craft worker in 1979. His relatively long employment relationship with Indiana Bell, however, has not been without strife. In 1978, Luddington filed suit against Indiana Bell also alleging race discrimination. Apparently, this suit was settled. He also has filed two other charges of race discrimination against Indiana Bell with the Equal Employment Opportunity Commission (EEOC) and one similar charge with the Indiana Civil Rights Commission. Luddington filed the EEOC charge upon which this suit is based on January 16, 1986. At the last count, Luddington alleges that Indiana Bell discriminated against him in not selecting him for promotion to twenty-eight job positions and for seven transfers. However, Luddington did not inform Indiana Bell that he was alleging discrimination regarding four of the job promotion positions until after discovery was closed and over a month after the filing of the motion for summary judgment. This court finds the defendant's concerns regarding these tardy claims to be of merit, and this court will not allow the plaintiff to raise these new claims, which would require additional discovery. Thus, any claims regarding the following four job openings cannot be pursued in this litigation, though the plaintiff is free to try to pursue them in a different suit: Director-ONA Market Development; Director-Technical Regulatory Liaison; Director-Switched Service Systems; and Director, BOC Personnel Support. This leaves Luddington with claims regarding twenty-four job promotions and seven transfers.
Indiana Bell denominates management by level number -- the greater the level number, the higher the position.
In order to understand the facts surrounding the thirty-one job positions involved in this case, this court will give a brief synopsis of Indiana Bell's procedures for job openings as set forth by the defendant. Indiana Bell has a Management Resource Center (MRC) that maintains information about job openings within Indiana Bell and outside Indiana Bell with other Bell Operating Companies and their affiliate (BOCs). An Indiana Bell employee may visit the MRC to obtain information on job openings, and the MRC also publishes a Management Job Openings List, which is circulated internally.
Once a year, employees complete Form 2930, which lists their backgrounds, experience, qualifications and desires. This information is given to MRC. Thus, if there is a job opening, the MRC, upon request, provides a manager with the names of employees who meet the general qualifications and who have expressed an interest in that area. An employee could also submit his or her name as an applicant for a particular opening.
According to Indiana Bell, it has been down-sizing its work force since the divestiture of AT & T on January 1, 1984. Thus, Indiana Bell states that its policy is that any manager who has a job opening has an obligation to fill it with existing managers at that same level who have the requisite qualifications. If there are no qualified lateral candidates, then the manager may consider candidates for promotion.
The procedures for filling the BOC positions are more complex. According to Indiana Bell, BOC openings were generally delineated either "career" or "rotational" prior to 1988. Career openings meant that an employee selected for the job would become an employee of that BOC permanently. Rotational openings, on the other hand, meant that an employee selected for the job would be an employee of the BOC for a certain number of years and would then return to Indiana Bell at a pre-designated level. This was known as a "buy-back," and Indiana Bell had to agree to it before an employee could be considered for a BOC job. If an Indiana Bell employee was interested in a BOC job opening, he or she would complete an inter-company transfer form and submit it to his or her supervisor. The employee's fifth level supervisor had to approve the request for transfer and a buy-back before he or she could be transferred to a BOC position. All decisions regarding interviews and job selections for a BOC opening were made by the BOC, not by Indiana Bell; however, Luddington states that it was Indiana Bell's responsibility to deliver his applications to the respective BOCs.
Luddington alleges that between 1982 and 1986 he sought promotion or transfer to over thirty jobs and that he was not chosen because of his race and/or in retaliation for his previous charges of discrimination. Luddington cites his high rating on employee evaluations, his employment experience and his educational background as evidence that he was qualified for all of the job openings that he sought. Some openings that would have been promotions were with Indiana Bell, while others were with BOCs. All of the transfers were with Indiana Bell. The management levels of the job openings ranged from Level 2 to Level 4. The job openings and pertinent information are listed below.
While working at Indiana Bell, Luddington earned a law degree and was admitted into the Indiana State Bar in 1985.
This court will use the numbering system used by the parties in identifying the job openings as to the promotions. This court has continued the numbering system as to the transfers.
IBT
Mgmt.
Other BOC
Promotions
Employer
Level
Employer
These are the dates that Indiana Bell contends that each position was filled. Luddington states in his affidavit, however, that these dates were the "desired report dates" on the Requests for Management Personnel, i.e., the projected dates that each opening would be filled. According to the plaintiff, the actual employment selection was often made up to six months after the date printed on the job announcement. Thus, the plaintiff contests the accuracy of many of these dates.
1(a) Specialist-Personnel
IBT
2
--
06/01/82
1(b) Manager (St. Rate Case
--
2
BOC
09/15/83
Support)
1(c) Associate, Network
--
2
BOC
02/15/84
of the Future
1(d) Specialist, Personnel
IBT
The defendant uses this designation, but it is unclear whether the information is "not applicable" or "not available." For example, Susan Hall, an employee of Indiana Bell in Human Resources, states in her affidavit that position 1(d) Specialist-Personnel was consolidated with an existing job on 12/31/83, but she did not designate the level of the job. Similarly, the level of position 2(a) Law Clerk was not given. It appears, however, that the Law Clerk position was being filled on a part-time basis by law students. Based on this information, this court will assume that "N/A" means "not applicable."
--
12/31/83
1(e) District Manager-
--
3
BOC
04/10/84
Network Planning
1(f) Manager (Comptroller)
IBT
2
--
09/01/84
(#95)
1(g) Manager (Comptroller)
IBT
2
--
07/01/84
(#69)
1(h) Manager (Network)
IBT
2
--
12/01/84
1(i) Public Affairs
--
3/4
BOC
10/01/84
1(j) Director, Federal
--
3
BOC
08/01/84
Regulatory
1(k) Claims Representative
IBT
1
--
09/24/85
(#24)
1(l) Specialist-Personnel
IBT
2
--
07/01/85
(#36)
1(m) Temporary Specialist-
IBT
2
--
08/05/85
Personnel
1(n) Manager (Labor
--
2
BOC
08/05/85
Relations
1(o) District Manager-
--
3
BOC
09/24/84
NECA
1(p) Attorney
IBT
4
--
05/85
1(q) Manager (Labor
--
2
BOC
01/01/86
Relations
1(r) Supervisor, Tax
--
3
BOC
04/01/86
Research & Planning
1(s) Manager, Affirmative
--
3
BOC
12/01/86
Action & EEO
1(t) Manager (Network)
IBT
2
--
10/01/85
1(u) Manager (Network)
IBT
2
--
12/15/85
1(v) Manager (Personnel)
IBT
2
--
09/16/85
(#57)
1(w) Manager (Marketing)
IBT
2
--
01/01/85
(#138)
1(x) Manager (Marketing)
IBT
N/A
--
08/85
IBT
Mgmt.
Other BOC
Transfers
Emlpoyer
Level
Employer
Date Filled
2(a) Law Clerk
IBT
N/A
--
1984-85
2(b) Scan Alert/Packet Switching
In one of the charts summarizing all of the job openings in the Defendant's Replacement Summary Judgment Memorandum, the defendant lists the transfer position of Scan Alert/Packet Switching twice and argues that the Title VII claim regarding the first is barred because Luddington did not include it in his EEOC charge and that the Title VII claim regarding the second is barred because of no EEOC charge and the failure to meet the 300 -day statute of limitations. However, this court cannot find in the record where the plaintiff applied for this job two separate times. It appears from the Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment that he only applied for the Scan Alert/Packet Switching once in 1984. Indiana Bell asserts that the decision to fill the job, which was part of a new program, was delayed until Indiana Bell decided whether to proceed with the start of the new program. It is not clear when the vacancy was filled, but the defendant was denied the position in 1984. This court will assume, based upon the record, that there were not two different applications or job positions involved.
IBT
1
--
01/16/85
2(c) Staff Associates, Regulatory
IBT
1
--
12/20/84
(#118)
2(d) Rate Associate, Regulatory
IBT
1
--
10/16/84
(#130)
2(e) Staff Associate, Comptroller
IBT
1
--
10/29/84
(#131)
2(f) Bell Independent Relations
IBT
1
--
08/21/84
(#20)
2(g) Tariff/Costs-Rate Assoc.
IBT
1
--
07/02/84
(#84 & #109)
09/16/84
III. Discussion
Because of the numerous job positions involved and the multiple legal theories alleged, the discussion will be structured in order to minimize the confusion inherent in addressing so many issues. This court will discuss first the plaintiff's section 1981 claims according to the following outline.
A. Section 1981
i. Statute of limitations
ii. Significance of Patterson v. McClean Credit Union
109 S. Ct. 2363 (1989).
iii. Merits of remaining claims
a. Refusal-to-promote claims
b. Retaliation claims
Second, this court will discuss the plaintiff's Title VII claims as set forth below.
B. Title VII
i. Statute of limitations
ii. Claims included in the EEOC charge
iii. Merits of remaining claims not already discussed under the section 1981 merits
The conclusion of this entry provides charts that summarize the court's holdings as to each job opening under both section 1981 and Title VII. Thus, the parties may refer to it for clarification.
A. Section 1981
While Indiana Bell seeks summary judgment as to all of the claims based upon various legal arguments, this court will first address Luddington's section 1981 claims under count II of his complaint. Section 1981 reads as follows:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
It appears that Luddington is asserting the following claims pursuant to section 1981: racial harassment; disparate treatment; disparate impact; and retaliation. Indiana Bell presents four arguments as to why it is entitled to summary judgment on count II of Luddington's complaint: (1) Indiana Bell was not the employer regarding ten of the promotion job openings; (2) acts prior to November 3, 1984, are barred under the applicable statute of limitations; (3) all of the claims fail in light of the United State Supreme Court's holding in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989); and (4) all of the claims fail on their merits.
i. Statute of limitations
A two year statute of limitations applies to this section 1981 claim. See Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987); Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1241-44 (7th Cir. 1980). Luddington filed his complaint on November 3, 1986; thus, any acts occurring prior to November 3, 1984, are seemingly barred.
Luddington asserts that those claims that arose two years prior to the filing of the complaint may be properly pursued and cites to Waters v. Wisconsin Steel Works of Int'l Harvester Co., 502 F.2d 1309, 1315 (7th Cir. 1974), though this case did not so hold and, thus, is inapposite. He then argues that the dates cited above in which the openings were supposedly filled were the dates that the openings were expected to be filled, but that in reality many of the employment decisions were not made for at least six months after the date listed. Thus, the allegedly discriminatory employment decisions occurred later than the dates listed in some circumstances. In an affidavit, Luddington lists several job openings that he contends were filed within the two year statute of limitations; however, only two of the jobs that Luddington lists were challenged by the defendant as falling outside of the two year statute of limitations. Construing these facts most favorably for the non-moving party, Luddington has still failed to show how the remaining eight promotion job openings and three transfer job openings fall within the two year statute of limitations. Thus, any claims under section 1981 regarding the following promotion and transfer job openings are time-barred: 1(a) Specialist-Personnel; 1(b) Manager (St. Rate Case Support); 1(c) Associate, Network of the Future; 1(d) Specialist, Personnel; 1(f) Manager (Comptroller); 1(g) Manager (Comptroller); 1(j) Director, Federal Regulatory; 1(n) Manager (Labor Relations); 2(d) Rate Associate, Regulatory; 2(e) Staff Associate, Comptroller; 2(f) Bell Independent Relations; and 2(g) Tariff/Costs-Rate Associate. This leaves Luddington with claims regarding sixteen promotion and three transfer openings.
ii. Significance of Patterson v. McClean Credit Union
The Supreme Court's recent holding in Patterson shut the door on many section 1981 employment discrimination claims, though the Court cracked a window for those claims of racial discrimination in promotions. In Patterson, a black former employee of a credit union sued her employer under section 1981 claiming that the employer harassed her, failed to promote her and discharged her all because of her race. In pertinent part, the Court held that the racial harassment claim was not actionable under section 1981, which extends only to conduct at the initial formation of the contract, "not to problems that may arise later from the conditions of continuing employment." Patterson, 109 S. Ct. at 2372. Thus, to the extent that Luddington pleads in his complaint that he was harassed in violation of section 1981, this claim is no longer viable. However, the Court stated that the employee's claim that the employer failed to promote her, because of race, from a teller and a file coordinator to an intermediate accounting clerk was "a different matter." Id. at 2377. The Court went on to state as follows:
The question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer's refusal to enter the new contract is actionable under § 1981. In making this determination, a lower court should give a fair and natural reading to the statutory phrase "the same right . . . to make . . . contracts," and should not strain in an undue manner the language of § 1981. Only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable under § 1981. Cf. Hishon v. King & Spaulding [sic], 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (refusal of law firm to accept associate into partnership) (Title VII).
Id.
Several courts have decided cases involving promotion claims since the holding in Patterson and have had to face the question of whether a given promotion presents a "new and distinct relation" and thus is an actionable claim under section 1981. For example, the Fourth Circuit concluded, with little discussion, that "promotion from clerk to supervisor with a consequent increase in responsibility and pay satisfies this test." Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908 (4th Cir. 1989).
In Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989), a Seventh Circuit panel, in three separate opinions, discussed the application of Patterson to promotion cases, but did not reach a decision on that issue. Malhotra, 885 F.2d at 1311-12. Judge Posner stated that one possible interpretation of the "new and distinct relation" test would distinguish between those job positions that accepted applications from inside, as well as outside, of the firm and those job promotions that were "the sort of routine advancement that only existing employees qualify for." Id. at 1311. Judge Posner then cited an example of the latter situation where a federal employee receives an in-grade promotion, which involves a raise in salary, but not a new job with new responsibilities; this "promotion" would not be a sufficiently "new and distinct relation" to bring a claim under section 1981. Id.
Another interpretation of the "new and distinct relation" test focuses on whether the terms of the contractual relationship between the employee and the employer would change. Id. Finally, a third interpretation of the Patterson language focuses on whether the promotion would involve a substantial change in the employee's job responsibilities. Id. at 1317 n.6 (Cudahy J. concurring).
Indiana Bell points to the holding in a Northern District of Illinois case in which an Assistant Director of Housekeeping, who was black and was not selected to become the Director of Housekeeping, sued for discrimination under both Title VII and section 1981. Crader v. Concordia College, 724 F.Supp. 558 (N.D. Ill. 1989). Judge Shadur held, in part, that Patterson barred the plaintiff's section 1981 claim. Noting the Supreme Court's reference to the Hishon case, which dealt with a Title VII claim against a law firm refusing to accept an associate into the partnership, Judge Shadur wrote:
While a promotion to Director might perhaps have represented a substantial increase in responsibility and authority for [the plaintiff] (a matter in some dispute between the parties), in any event it would not have fundamentally altered the quality of his relationship with [the employer] in any way comparable to the move from associate to partner in a law firm -- it would not have "involved the opportunity to enter into a new contract with" [the employer] or the "opportunity for a new and distinct relation" in the sense called for by the most reasonable reading of that language in Patterson.
Crader, 724 F. Supp. at 563.
Another Northern District of Illinois court also faced the issue, though the facts were less strong for the plaintiff, in which the court held that the "promotion" of an employee from probationary to tenured status was not a "new and distinct relation," especially when the employee would have performed the very same functions regardless of his status. Sofferin v. American Airlines, Inc., 717 F. Supp. 597, 599 (N.D. Ill. 1989).
After considering the Supreme Court's discussion in Patterson and the subsequent lower court rulings cited above, this court holds that only those jobs that would have provided an increase in management level and significantly different responsibilities rise to the level of a "new and distinct relation" that are sufficient claims under section 1981. These criteria are intended to exclude those jobs in which an employee, for example, supervises a growing department. While such an employee may go from supervising a few to many employees and may receive a concomitant increase in salary, this is not a "promotion" under the Patterson framework. Additional responsibilities are not sufficient; an employee must assume responsibilities that are distinctly different from the previous job, along with an increase in the level of the job.
This framework also excludes those jobs that are lateral transfers that merely involve new duties without significant changes in management level and the amount or type of responsibilities. See White v. Federal Express Corp., 1990 WL 7343 (E.D. Va. 1990) (applying the "contract test" set forth in Malhotra and holding that a section 1981 claim concerning the denial of a job change was more in the nature of a lateral transfer than a promotion and, thus, barred by Patterson); Brown v. Avon Prods., Inc., 1989 WL 122334 (N.D. Ill. 1989) (noting that a failure-to-transfer claim clearly fails the tests stated in Patterson). This court agrees with District Judge Ellis that if this court interpreted the "new and distinct relation" test to allow claims regarding lateral transfers, "virtually all requests for changes in job assignments would be swept back within the ambit of § 1981, a result at odds with the thrust of Patterson." White, 1990 WL 7343, *5.
Therefore, based upon these criteria and the information in the record at this point, all of the jobs that fall within the two-year statute of limitations are viable promotion claims under Patterson except for 1(k) Claims Representative, which was a Level 1 job and would not have been an increase in management level for Luddington, and the three transfers, which were essentially lateral openings.
While the BOC jobs technically involved an employment contract with an employer other than Indiana Bell, the section 1981 claims regarding these jobs are still viable under Patterson as to Indiana Bell's alleged actions in the processing of Luddington's applications.
iii. Merits of remaining claims
Finally, this court must decide if summary judgment is appropriate on the merits of the section 1981 claims, which involve the remaining fifteen promotions. In order to prevail on his section 1981 claims, the plaintiff must prove that he was the victim of intentional racial discrimination in connection with the making or enforcing of an employment contract. Luddington must make such a showing by following the methods and burdens of proof that are applicable to claims under Title VII. See Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 568 (7th Cir. 1989). This showing may be made either by direct proof of discriminatory intent or by the method of indirect proof as set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Lynch v. Belden & Co., 882 F.2d 262, 268 (7th Cir. 1989), cert. denied, 493 U.S. 1080, 110 S. Ct. 1134, 107 L. Ed. 2d 1040 (1990). Direct evidence of a racially discriminatory motive consists of actions or remarks by the defendant that reflect a discriminatory attitude in the employment decision-making process. See Crader, 724 F. Supp. at 564-65. The indirect method of proof as outlined in Burdine and McDonnell Douglas Corp. allows a plaintiff to raise an inference of discriminatory intent when there is no direct evidence available. See Lynch, 882 F.2d at 269. Under this indirect method, the plaintiff first has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Burdine, 450 U.S. at 252-53. If the plaintiff succeeds in proving the prima facie case, a rebuttable presumption arises, and the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its employment action. Id.; McDonnell Douglas Corp., 411 U.S. at 802. Should the defendant carry this burden, the presumption raised by the prima facie case is rebutted. Burdine, 450 U.S. at 255. The plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were merely a pretext for discrimination. Id. at 252-53; see also Reeder-Baker v. Lincoln Nat'l Corp., 834 F.2d 1373, 1376-77 (7th Cir. 1987); Collins v. State of Illinois, 830 F.2d 692, 698 (7th Cir. 1987).
Because discrimination must be intentional under section 1981, no cause of action is stated for disparate impact. See Oliver v. Digital Equip. Corp., 846 F.2d 103, 111 (1st Cir. 1988) ("A plaintiff may not make a disparate impact claim under section 1981 since actions involving disparate impact can include practices which are neutral not only on their face but in terms of intent."); cf. Dugan v. Ball State Univ., 815 F.2d 1132, 1135 n.1 (7th Cir. 1987) ("A section 1983 equal protection violation requires a showing of intentional discrimination, thus foreclosing a disparate impact claim.")
The record in this case fails to reveal any direct evidence of discrimination on the basis of race in the consideration of Luddington's employment applications. Thus, Luddington can prevail only by utilizing the McDonnell Douglas Corp. -- Burdine method of indirect proof. Focusing on this three step method of proof, this court will address the merits of the plaintiff's section 1981 claims for retaliation and disparate treatment involving the remaining fifteen promotion opportunities. In order for the plaintiff to establish a prima facie case regarding his refusal-to-promote claims, he must show by a preponderance of the evidence that he was a member of a protected class, that he applied for promotion and was qualified, that despite his qualifications he was rejected, and that others not in the protected class but with the plaintiff's or lower qualifications were promoted. See Bigby v. City of Chicago, 766 F.2d 1053 (7th Cir. 1985). In order for the plaintiff to establish a prima facie case of retaliation, he must show by a preponderance of the evidence that he engaged in statutorily protected activity, that the employer took an adverse personnel action, and that a causal connection existed between the above two actions. See Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 369 n.4 (1970); Jennings v. Tinley Park Community Consol. School Dist. Number 146, 796 F.2d 962, 966-67 (7th Cir. 1986), cert. denied , 481 U.S. 1017 (1987).
Only the merits of those claims that are not barred by thi statute of limitations or that are not viable after Patterson wi.1 be addressed. However, this is not a determination that those claims that are barred for other reasons are otherwise meritorious.
Of the plaintiff's remaining claims, he applied for six BOC job openings. Indiana Bell states that the employment decisions for the BOC job openings were made by the respective BOCs and not by Indiana Bell; thus, Indiana Bell argues that it cannot be held accountable for decisions made by other employers. Luddington argues that he is not trying to hold Indiana Bell accountable for the decisions of the BOCs; rather his complaints go toward Indiana Bell's actions or inactions. He alleges that the defendant failed to deliver his applications to the BOCs because of the his race and/or in retaliation for his previous charges against the defendant. In the plaintiff's response to the defendant's motion for summary judgment, the plaintiff states there is a question of material fact and cites to specific portions of depositions. However, the plaintiff does not meet his burden on his refusal-to-promote claim because he fails to show that the defendant did deliver the applications of similarly or lower qualified non-minority persons to the BOCs for consideration of employment as to those six specific jobs to which the plaintiff had also applied. Furthermore, as the defendant points out, Luddington testified in his deposition that he was not aware of any instance, except for one that involved a human resources Level 3 BOC job, in which an Indiana Bell employee did not pursue Luddington's interest in job openings. The plaintiff has failed "to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Thus, summary judgment will be granted for the defendant on the plaintiff's section 1981 refusal-to-promote claims as to the following BOC job openings: 1(e) District Manager- Network Planning; 1(i) Public Affairs; 1(o) District Manager-NECA; 1(q) Manager (Labor Relations); 1(r) Supervisor, Tax Research & Planning; and 1(s) Manager, Affirmative Action & EEO.
The plaintiff states in his affidavit that "the applications (promotion and transfer) of white employees of defendant, and defendant employees who had not filed charges against defendant, were delivered to said companies for consideration on enhanced employment opportunities." However, the plaintiff does not state whether these white employees' qualifications were superior to, equal to, or less than Luddington's qualifications.
With regards to the job opening 1(h) Manager (Network), the plaintiff does not even discuss the merits in his memorandum in opposition to the defendant's motion for summary judgment or in his affidavit. He does argue that this job was inappropriately listed by the defendant as one that was barred by the statute of limitations, which the defendant subsequently admitted. However, Luddington does not show in his pleadings that he was specifically qualified for the position or that Indiana Bell filled the position with someone with the same or less qualifications than the plaintiff. Thus, Luddington has failed to present a prima facie case of a failure-to-promote discrimination claim under section 1981 regarding the 1(h) Manager (Network) position.
Questions of material fact exist as to the job opening designated 1(1) Specialist-Personnel. The plaintiff contends that he was told that no promotions would be made to fill this Level 2 management position, but that the white male who was ultimately hired was promoted. The defendant, on the other hand, asserts that no Level 1 supervisors, black or white, were considered and that the person selected was not promoted to the position. Thus, the section 1981 failure-to-promote claim regarding job 1(1) Specialist-Personnel survives summary judgment.
The plaintiff has failed to make out a prima facie case regarding job opening 1(m) Temporary Specialist-Personnel. The plaintiff acknowledges that Frank Thomas filled the position while the employee who normally filled the position went on maternity leave. The defendant states, and the plaintiff does not refute, that Thomas (as well as the employee who went on maternity leave) are black. Thus, Luddington has failed to show that someone not in the protected class, i.e, black, but with the plaintiff's or lower qualifications was promoted.
Again, Luddington has failed to allege a prima facie case regarding position 1(p) Attorney because he does not show that someone other than a black person was subsequently chosen to fill the vacancy. Luddington asserts, without citing to any evidence in the record, that "the defendant allowed two of the white attorneys, who worked for it to transfer to its legal department. . . ." While there seems to be a question of fact as to whether Indiana Bell had a policy to hire persons for this position who had practiced law outside of Indiana Bell, the plaintiff still fails to allege that these two white attorneys were hired for the specific position to which he had applied. Indeed, Thomas J. Reiman, vice president and general counsel of Indiana Bell, states in his affidavit that Joset Wright-Lloyd, a black attorney with practice experience outside Indiana Bell, was hired for the position, and the plaintiff does not dispute this.
Luddington cites to deposition testimony of attorney Richard Creedon in which Creedon states that an attorney, Mr. Westerhaus, did transfer into the legal department from another Indiana Bell department. Indiana Bell asserts that it only hires attorneys for its legal department who have practice experience outside of Indiana Bell. While there appears to be a question of fact regarding this issue, it is irrelevant as to the failure-to-promote claim because of Luddington's inadequate showing of a prima facie case.
The next two job openings, 1(t) Manager (Network) and 1(u) Manager (Network), will be discussed together because they involve the same job that was filled twice in the span of a few months. There is a question of material fact as to these two positions regarding whether the two white males who were hired to fill the position were equally or less qualified than Luddington. The defendant states that Luddington's law degree was irrelevant because it was not a requirement for the position, but the plaintiff cites his experience with Indiana Bell in comparison with the two candidates who were chosen, which appears to be more extensive and would make him more qualified. Thus, the failure -to-promote claims as to these two positions survives summary judgment.
Luddington fails to support his allegations regarding position 1(v) Manager (Personnel). He asserts that Elaine Lucas, a white female, was "promoted" to the position after he was told that his application would not be considered because no promotion would be made. However, Luddington fails to cite to any portion of the record that supports his assertion that Lucas was promoted. The plaintiff cannot make unsupported allegations in order to survive a motion for summary judgment. Thus, Luddington may not raise a failure-to-promote claim regarding the position 1(v) Manager (Personnel).
The plaintiff fails to raise a sufficient claim regarding the position 1(w) Manager (Marketing). He makes unsupported allegations and speculations that do not overcome summary judgment. Luddington testified in his deposition that after he inquired about the job, his supervisor reported to him shortly thereafter that the position had already been filled by a lateral Level 2 manager who appeared on a list of Level 2 "surplus" managers. There is nothing in the record that refutes this. Luddington speculates that such a list is nonexistent and merely a pretext to cover unlawful discrimination and retaliation. However, speculation is insufficient to overcome summary judgment. Celotex, 477 U.S. at 324.
Luddington's failure-to-promote claim regarding position 1(x) Manager (Marketing) is wholly insufficient. He alleges, without any evidentiary support, that he was performing this Level 1 job, which involved duties similar to those duties characteristic of Level 2. When his supervisor asked him if he wanted to remain in the position, Luddington responded that he would accept the job only if it was re-classified as a Level 2 position. Indiana Bell had no plans to elevate the job from Level 1 to Level 2, and no one subsequently was promoted to that position as a Level 2 manager. Luddington cannot expect Indiana Bell to create a new Level 2 management position in marketing simply because he thinks that they should and then successfully allege discriminatory treatment when Indiana Bell does not do so.
This is not a situation in which the employer abolished a position to avoid filling it with a qualified black candidate. See Crader, 724 F. Supp. at 565 (black employee made out a prima facie case of discrimination by showing that a position for which he was qualified was eliminated).
In summary, this court finds that the plaintiff has not established a section 1981 failure-to-promote racial discrimination claim as to twelve of the fifteen promotion openings. Thus, the plaintiff's only remaining claims under this theory are the following: 1(1) Specialist-Personnel; 1(t) Manager (Network); and 1(u) Manager (Network).
b. Retaliation claims
The plaintiff has alleged that he had conversations at different times with three Indiana Bell management employees -- Sy Butler, William Overby and Phil Junker -- who made retaliatory comments along the lines that his pursuit of racial discrimination claims against Indiana Bell may limit his future at the company. Assuming that these comments were made, Luddington must show that these individuals participated in the decision-making process regarding the Luddington's job applications. See La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1412 (7th Cir. 1984). However, the record does not reveal that any of the individuals participated in the decision-making process nor discussed Luddington's applications for the jobs with the decision-makers, with the exception of two job openings in which Junker was involved.
Luddington alleges that he talked with Junker in the fall of 1985 when Junker told him that he was perceived as a high risk due to his previous litigation. Junker was involved in the decision-making process as to the job openings 1(m) Temporary Specialist-Personnel and 1(v) Manager (Personnel). It also appears from the record that both of these positions were filled in the fall of 1985. This temporal sequence establishes a sufficient causal link to survive summary judgment. Therefore, the section 1981 retaliation claim may be raised as to these two job positions, but not as to the others.
According to the affidavit of Susan Hall, who was employed in Human Resources, job 1(m) was filled on 8/5/85 and job 1(v) was filled on 9/16/85.
B. Title VII
Indiana Bell argues that all of the claims brought pursuant to Title VII should be dismissed for the following reasons: (1) those claims involving actions prior to April 12, 1985, were not timely filed; (2) those claims not included in an administrative EEOC charge may not be pursued in this court; and (3) any remaining claims fail on the merits.
i. Statute of limitations
Title VII claims brought in Indiana are generally subject to a 300-day period of limitation. See 42 U.S.C. § 2000e-5(e). The statute of limitations runs from when the employee is notified of a discriminatory employment decision, not from when the employee is affected. Dugan v. Ball State Univ., 815 F.2d 1132, 1134 (7th Cir. 1987). Furthermore, a claim that a discriminatory act occurred prior to the statute of limitations, but had an effect that occurred during the limitations period, is not timely. Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S. Ct. 2261, 104 L. Ed. 2d 961 (1989).
In this case, Indiana Bell cites twelve promotion jobs and six transfer jobs that involve Title VII claims that are barred by the 300-day statute of limitations. Luddington does not contest that these claims fall outside of the 300-day time period, but argues that these are "like or reasonably related to the allegations of the charge" so as to be properly brought before this court.
The Seventh Circuit has stated that "the judicial complaint in a Title VII case can embrace not only the allegations in the administrative charge but also "'discrimination like or reasonably related to the allegations of the charge and growing out of such allegations'. . . ." Malhotra, 885 F.2d at 1312 (quoting Hemmige v. Chicago Pub. Schools, 786 F.2d 280, 283 (7th Cir. 1986)). In Malhotra, the Seventh Circuit held that the plaintiff's claim regarding racial harassment was barred in the Title VII action because he had only alleged failure to promote, not racial harassment, in his administrative charge. However, the Court went on to hold that the plaintiff's failure to include retaliation in his administrative charge was not fatal and adopted the general ruled that "a separate administrative charge is not prerequisite to a suit complaining about retaliation for filing the first charge." Id. at 1312.
The doctrine of "like or reasonably related," however, has nothing to do with the statute of limitations, but rather the substantive scope of the lawsuit. In this case, unlike Malhotra, the plaintiff is trying to pursue claims that fall outside of the statute of limitations. While these claims that are outside of the statute of limitations may or may not be "like or reasonably related" to those claims in the EEOC charge, Luddington cannot use this doctrine to avoid a statute of limitations bar. As Judge Shadur stated in Proffit v. Keycom Elec. Publishing, 625 F. Supp. 400, 408 (N.D. Ill. 1985), the plaintiff cannot use the "'like or reasonably related' standard to work backward in time, thus circumventing the statutory filing deadlines. Carried to its logical extension, [this] argument would abolish the whole notion of limitations -- for any new act of discrimination would dredge up and render actionable every long-outlawed historical occurrence of the same kind."
Therefore, the plaintiff's EEOC claims regarding the following job openings are barred by the 300-day limitations period:
Promotions:
1(a) Specialist-Personnel
1(b) Manager (St. Rate Case Support)
1(c) Associate, Network of the Future
1(d) Specialist, Personnel
1(e) District Manager-Network Planning
1(f) Manager (Comptroller)
1(g) Manager (Comptroller)
1(h) Manager (Network)
1(i) Public Affairs
1(j) Director, Federal Regulatory
1(n) Manager (Labor Relations)
1(o) District Manager-NECA
Transfer
2(b) Scan Alert/Packet Switching
2(c) Staff Associate, Regulatory
2(d) Rate Associate, Regulatory
2(e) Staff Associate, Comptroller
2(f) Bell Independent Relations
2(g) Tariff/Costs-Rate Associate
This leaves the plaintiff with EEOC claims as to twelve promotions and one transfer that are not barred by the statute of limitations.
ii. Claims included in the EEOC charge
The filing of charges with the EEOC and the receipt of a right to sue letter are necessary prerequisites to pursuing any Title VII claim in federal district court. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974); Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1238 (7th Cir. 1980). The nature of the charge before the EEOC affects the scope of the court's jurisdiction. "Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge. . . ." Babrocky v. Jewel Food Co. & Retail Meatcutters Union, 773 F.2d 857, 863 (7th Cir. 1985). The only claims that are cognizable are those in the EEOC charge and those that are "'like or reasonably related to the allegations of the charge and growing out of such allegations.'" Id. at 864 (quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.) (en banc), cert denied, 429 U.S. 986, 97 S. Ct. 506, 50 L. Ed. 2d 598 (1976)); see also Schnellbaecher v. Basking Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989); Gamble v. Birmingham S. R.R. Co., 514 F.2d 678, 687-89 (5th Cir. 1975); Flesch v. Eastern Pennsylvania Psychiatric Inst., 434 F. Supp. 963, 970 (E.D. Pa. 1977). Thus, while the extent of an EEOC investigation may help define the scope of the charge, it will not necessarily defeat a complaint where the complaint contains allegations that are like or reasonably related to the EEOC charge. Schnellbaecher, 887 F.2d at 127.
Luddington filed a charge with the EEOC on January 15, 1986, regarding the following jobs: 1(k) Claims Representative; 1(m) Temporary Specialist-Personnel; 1(p) Attorney; 1(t) Manager (Network); 1(u) Manager (Network); and 1(w) Manager (Marketing) or 1(x) Manager (Marketing). The defendant argues that all other claims not cited in the EEOC charge are, therefore, barred. The plaintiff, on the other hand, argues that his EEOC charge alleged that Indiana Bell denied him consideration for promotional opportunities due to his race and retaliated against him for having protested its discriminatory employment practices. Thus, the plaintiff argues that all of his claims, including those not specifically mentioned in the charge, are "like or reasonably related to the allegations of the charge" so as to be properly brought before this court. See Flesch v. Eastern Pennsylvania Psychiatric Inst., 434 F. Supp. 963, 970 (E.D. Pa. 1977).
This court must determine what EEOC investigation could reasonably be expected to grow from the original charge. See Schnellbaecher, 887 F.2d at 127. There are five promotion and two transfer job claims that are not specifically included in Luddington's EEOC charge and that are not already barred by the 300-day statute of limitations. All of the jobs involve allegations of race discrimination and/or retaliation in the promotion or transfer of the plaintiff. However, all of these job openings and the alleged accompanying discriminatory acts occurred before the filing of the charge. Thus, this not like a situation in which the Title VII plaintiff is attempting to include a claim that was not included in the EEOC charge because the alleged discriminatory acts were in response to the filing of the EEOC charge. See Flesch, 434 F. Supp. at 970. This is also not like a situation in which we have an unsophisticated plaintiff who is unfamiliar with the EEOC process or who is inarticulate and unable to thoroughly describe the discriminatory practices. Cf. Jenkins, 538 F.2d at 167-68 (noting that Title VII is to be construed broadly because EEOC charges are in "layman's language," unassisted by trained lawyers); Gamble, 514 F.2d at 688-89 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970)) ("We must ever be mindful that the provisions of Title VII were not designed for the sophisticated or the cognoscenti, but to protect equality of opportunity among all employees and prospective employees. This protection must be extended to even the most unlettered and unsophisticated."). Luddington has filed previous EEOC charges, which are not the subject of this law suit, and he is an attorney himself. Thus, this court finds that the Title VII challenges regarding those jobs not listed in the EEOC charge are not sufficiently related to the claims in the EEOC charge and are therefore barred. Furthermore to the extent that the plaintiff is trying to introduce a harassment theory or a disparate impact theory, this would unduly expand the substantive scope of this lawsuit beyond the claims in the EEOC charge, and therefore, both theories are also barred.
iii. Merits of remaining claims not already discussed under the section 1981 merits
Finally, this court must decide if summary judgment is appropriate on the merits as to the remaining Title VII claims. As already noted, in most instances the methods and burdens of proof are the same for claims under section Title VII and section 1981. See Randle, 876 F.2d at 568. This court has analyzed the merits of those claims brought pursuant to section 1981 that were not barred for other reasons. To the extent that the same claims are also brought pursuant to Title VII and not otherwise barred by Title VII's statute of limitations, the analysis of the merits would not change. Accordingly, this court will only analyze the merits of those claims involving job openings that were not analyzed in the section 1981 portion of this entry and that are not barred for other reasons already discussed.
With regards to job position 1(k) Claims Representative, the plaintiff does not offer any material evidence that the reasons given in deposition testimony by Richard Creedon, Indiana Bell's in-house Claims Attorney, for Creedon's decision to hire William Wermund and not Luddington were pretextual. Thus, Luddington's Title VII racial discrimination claim as to job position 1(k) Claims Representative is not viable. Similarly, since Luddington fails to present any evidence that a person in the decisionmaking process with respect to this job made a retaliatory statement, his Title VII retaliation claims also fails.
The last position that this court must review as to the merits involves the transfer to job 2(a) Law Clerk. There is a question of material fact as to when the plaintiff inquired about the 2(a) Law Clerk position, i.e., before or after he graduated from law school, and the plaintiff meets his burden to survive summary judgment because he alleges that only lower qualified, white law students were hired to fill the position. The defendant states that no attorneys have ever been hired as 2(a) Law Clerks, but Luddington states in his deposition that he was willing to take a cut in pay for the experience. Thus, Luddington's Title VII racial discrimination claim as to the 2(a) Law Clerk opening survives summary judgment. However, as stated above, Luddington does not make out a claim of retaliation because he fails to allege that a decision-maker with respect to this job made retaliatory statements.
In summary, Indiana Bell's summary judgment motion will be granted as to twelve promotions and six transfers because the claims regarding those position fall outside Title VII's 300-day statute of limitations. This court will grant summary judgment as to five promotion openings and one transfer opening because these were not included in the EEOC charge. As to the remaining claims, this court will grant summary judgment as to six promotions and one transfer on the plaintiff's retaliation theory and as to five promotions on the plaintiff's racial discrimination theory. As the chart below indicates, this leaves the plaintiff with Title VII racial discrimination claims as to two promotions and one transfer and with a Title VII retaliation claim as to one promotion.
The transfer position, 2(b) Scan Alert/Packet Swithing, has already been barred by the applicable statute of limitations. Because there may be a dispute as to whether there were two such positions, one of which may not have been barred by the statute of limitations, this court also finds that both are barred because they were not included in the EEOC charge.
III. Conclusion
Based on all of the aforementioned reasons, this court GRANTS IN PART AND DENIES IN PART the defendant's motion for summary judgment. In order to aid the parties and this court in keeping track of the claims that are and are not barred, the first table summarizes this court's holdings as to Luddington's section 1981 claims. The second table summarizes this court' holdings as to Luddington's Title VII claims. Those job openings with an "X" beside them are barred in whole or in part for the reason set forth by the particular column in which the "X" is placed.
SECTION 19812-Year
No
No Refusal
Statute of
Retaliation
to Promote
Promotion
Patterson
Limitations
Claim
Claim
1(a) Specialist-Personnel
X
1(b) Manager (St. Rate
X
Case
Support
1(c) Associate, Network
X
of the Future
1(d) Specialist, Personnel
X
1(e) District Manager-
X
X
Network Planning
1(f) Manager (Comptroller)
X
(#95)
1(g) Manager (Comptroller)
X
(#69)
1(h) Manager (Network)
X
X
1(i) Public Affairs
X
X
1(j) Director, Federal
X
Regulatory
1(k) Claims Representative
X
(#24)
1(l) Specialist-Personnel
X
(#36)
1(m) Temporary Specialist-
X
Personnel
1(n) Manager (Labor
X
Relations)
1(o) District Manager-
X
X
NECA
1(p) Attorney
X
X
1(q) Manager (Labor
X
X
Relations)
1(r) Supervisor, Tax
X
X
Research & Planning
1(s) Manager, Affirmative
X
X
Action & EEO
1(t) Manager (Network)
X
1(u) Manager (Network)
X
1(v) Manager (Personnel)
X
(#57)
1(w) Manager (Marketing)
X
X
(#138)
1(x) Manager (Marketing)
X
X
2-Year
Statute of
Refusal
Transfer
Patterson
Limitations
Retaliation
to Promote
2(a) Law Clerk
X
2(b) Scan Alert/Packet
X
Switching
2(c) Staff Associates,
X
Regulatory
2(d) Rate Associate,
X
Regulatory
2(e) Staff Associate,
X
Comptroller
2(f) Bell Telephone
X
Relations
2(g) Tariff/Costs
X
TITLE VII
300-Day
No
No Failure
No EEOC
Statute of
Retaliation
to Promote
Promotion
Charge
Limitations
Claim
Claim
1(a) Specialist-Personnel
X
1(b) Manager (St. Rate Case
X
Support)
1(c) Associate, Network
X
of the Future
1(d) Specialist, Personnel
X
1(e) District Manager-
X
Network Planning
1(f) Manager (Comptroller)
X
(#95)
1(g) Manager (Comptroller)
X
(#69)
1(h) Manager (Network)
X
1(i) Public Affairs
X
1(j) Director, Federal
X
Regulatory
1(k) Claims Representative
X
X
(#24)
1(l) Specialist-Personnel
X
(#36)
1(m) Temporary Specialist-
X
Personnel
1(n) Manager (Labor
X
Relations
1(o) District Manager-
X
NECA
1(p) Attorney
X
X
1(q) Manager (Labor
X
Relations
1(r) Supervisor, Tax
X
Research & Planning
1(s) Manager, Affirmative
X
Action & EEO
1(t) Manager (Network)
X
1(u) Manager (Network)
X
1(v) Manager (Personnel)
X
(#57)
1(w) Manager (Marketing)
X
X
(#138)
1(x) Manager (Marketing)
X
X
300-Day
No
No Failure
No EEOC
Statute of
Retaliation
to Promote
Transfer
Charge
Limitations
Claim
Claim
2(a) Law Clerk
X
2(b) Scan Alert/Packet
X
X
Switching
2(c) Staff Associates,
X
Regulatory
2(d) Rate Associate,
X
Regulatory
2(e) Staff Associate,
X
Comptroller
2(f) Bell Telephone
X
Relations
2(g) Tariff/Costs
X
This leaves the plaintiff with viable claims involving the following jobs under the theories indicated.
Section 1981Failure-to-Promote Theory
Retaliation Theory
1(l) Specialist-Personnel
1(m) Temporary Specialist-Personnel
1(t) Manager (Network)
1(v) Manager (Personnel)
1(u) Manager (Network)
Title VII
Racial Discrimination
Retaliation Theory
1(t) Manager (Network)
1(m) Temporary Specialist-Personnel
1(u) Manager (Network)
2(a) Law Clerk
Dated this 23rd day of April 1990.
John Daniel Tinder, Judge
United States District Court