Opinion
No. 98 C 7809
February 10, 2000
MEMORANDUM OPINION
This matter is before the Court on Defendant's Motion for Summary Judgment. For the reasons set forth below, Defendant's motion is granted.
BACKGROUND
This case concerns the termination of the employment of Plaintiff, Harry J. McGraw ("McGraw") by his employer, Defendant Chicago Housing Authority ("CHA"). McGraw argues CHA forced him to quit in lieu of being fired because of his gender. CHA claims that it discharged McGraw because he failed to report to work for approximately 35 days, without first obtaining written authorization for his absence. We hold that McGraw has failed to plead evidence sufficient to establish a prima facie discrimination case, nor has he established that the legitimate basis cited by CHA for his forced resignation was pretext for discrimination.
In 1996, CHA began a program geared toward public housing residents entitled "Resident Employment Development Initiative" ("REDI"). Under REDI, CHA sponsored training classes for its residents to enable them to create, develop and operate their own businesses.
McGraw, a public housing resident, began working as an electrician for CHA on September 2, 1992. In September of 1996, he completed his REDI training, qualifying him to bid on CHA contracts for his personal contracting business, All Seasons, Inc. McGraw is the sole owner of All Seasons.
CHA maintains an ethics policy prohibiting CHA employees from maintaining dual status of being both an employee and a contractor of CHA. However, an individual may apply for a waiver of the ethics policy, allowing him to bid for contracting jobs while continuing to work for CHA. McGraw claims he sought a waiver in November of 1996 but that CHA never acted upon it.
Despite not having been granted a waiver, in early 1997, on behalf of All Seasons, McGraw bid for a contracting job under CHA's Vacancy Reduction Program. McGraw received the contract for the job and on June 14, 1997, CHA informed McGraw that he had until August 18, 1997 to complete the work.
In July of 1997, McGraw prepared a CHA Request for Leave form, requesting a thirty day leave of absence without pay for the period of July 21, 1997 through August 18, 1997, so that he could fulfill All Seasons' contract with CHA. McGraw submitted the request to his supervisor, Dorothea Washington, and McGraw claims that he received Washington's verbal approval of his proposed absence. Despite knowing that he was required to obtain written approval for his absence, McGraw did not obtain Washington's signature on his request before starting his leave of absence. Consequently, McGraw's absence was unauthorized when he failed to report to work for the next thirty days.
McGraw did not complete his contracting work for CHA during this initial period, so on August 18, 1997, McGraw prepared a second Request for Leave for an additional seven days, ending August 26, 1999. McGraw again failed to have Washington sign the form, but left it with her secretary. As a result, his absence during this period was also unauthorized.
At the time of McGraw's absence CHA had in effect an Ethics Policy and Code of Conduct. Policy number 2612(K), prohibited CHA employees from being absent from work without prior authorization. Based on McGraw's absence Washington sent McGraw a letter on August 28, 1997 informing him that he violated Policy Number 2612(K), and she had recommended to CHA's personnel department that his employment be terminated. On September 14, 1997, when presented with CHA's decision to terminate his employment, McGraw resigned.
McGraw subsequently filed a discrimination charge with the Equal Employment Opportunity Commission, claiming he was discriminated against because of his gender. EEOC did not act within 180 days, so McGraw requested that he be issued a Notice of Right to Sue. Upon receipt of his notice, McGraw filed suit with this Court. Following discovery, CHA filed this motion for summary judgment.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, answers to interrogatories, admissions, affidavits and other materials show that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(b). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248. 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party seeking summary judgment carries the initial burden of showing that no such issue of material fact exists. Pursuant to Rule 56(b), when a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue of material fact and that the moving party is not entitled to judgment as a matter of law. See Anderson, 477 U.S. at 250.
In making our determination, we are to draw inferences from the record in the light most favorable to the non-moving party. We are not required to draw every conceivable inference, but only those that are reasonable. See DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987). The nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, the party must go beyond the pleadings and support her contentions with proper documentary evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Rule 56 mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to that party's cause of action. See Celotex, 477 U.S. at 422. With these principles in mind, we turn to the merits of the Defendants' motion.
DISCUSSION
In his complaint, McGraw claims that when CHA terminated his employment it improperly discriminated against him because of his gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In support of his claim, he contends that he was treated differently than five female employees of CHA who were similarly situated to him.
CHA argues that McGraw has not established all of the elements required by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), for an employment discrimination case based on indirect proof, because he has failed to demonstrate that CHA treated a similarly situated female in a more favorable fashion. CHA also asserts that even if McGraw could somehow fulfill this requirement, he still cannot establish that CHA's reasons for firing McGraw were improper and discriminatory. McGraw, appearing pro se, counters that CHA did not take any disciplinary action against the five allegedly similarly situated women.
To succeed on a discrimination claim plaintiff must either tender direct evidence of discrimination, or proceed under theMcDonnell Douglas burden-shifting analysis. See Smart v. Ball State Univ., 89 F.3d 437, 439 (7th Cir. 1996). Under McDonnell Douglas, a male plaintiff must show: (1) he belongs to a protected class; (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) the employer treated a similarly-situated female employee more favorably. See McDonnell Douglas, 411 U.S. at 802-03; Cheek v. Peabody Coal Co., 97 F.3d 200, 203 (7th Cir. 1996). Summary judgment is warranted if plaintiff fails to present evidence from which a reasonable jury could conclude that any of the elements were met. See Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 863 (7th Cir. 1997). If plaintiff fulfills his burden, the employer must articulate a legitimate, non-discriminatory reason for plaintiff's firing, thus shifting the burden to plaintiff to prove that the reasons the employer offered were a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802.
CHA claims McGraw has failed to show that it treated a similarly-situated female employee more favorably than it did McGraw. The uncontested evidence shows that McGraw's employment was terminated because he did not report to work from July 21, 1997 until August 25, 1997. While McGraw filled out the appropriate request for leave form, and allegedly obtained oral approval of his leave from his supervisor, Dorothea Washington, McGraw did not obtain written approval for his leave of absence.
McGraw's absence violated CHA Code of Business Ethics Policy Number 2612(K), which authorized CHA to take corrective action, including termination, against any employee who was absent from work without authorization. Consequently, on August 28, 1997, Washington sent McGraw a letter informing him that he violated Policy Number 2612(K), and she had recommended that his employment be terminated. On September 14, 1997, McGraw resigned in lieu of being fired by CHA. Thus, to make out a prima facie case under McDonnel Douglas, and survive summary judgment, McGraw must tender evidence to the Court showing that a similarly situated female CHA employee took an extended, unauthorized leave of absence, but CHA did not terminate her employment, nor prevail upon her to resign.
McGraw has not made such a claim, much less tendered any supporting evidence. Instead, he focuses on five women CHA employees who allegedly received waivers from CHA that allowed their company to perform outside contract work for CHA, at the same time they were employed by CHA. In support of his claim he tenders a document demonstrating that the five women received their waivers. McGraw claims in his EEOC charge that he "was threatened with termination and forced to resign for attempting to do the same thing." McGraw claims that CHA failed to act because he was a male.
McGraw has not demonstrated that the five women were similarly situated to him. It is uncontested that he took an unauthorized absence for an extended period of time. There is no evidence that any of the five women employees who received waivers took such an extended unauthorized absence. Ergo, the women are not similarly situated to McGraw. His argument that he was terminated and forced to resign because he attempted to obtain a waiver goes towards establishing pretext, not liabilty. However, to argue pretext a plaintiff must first establish his prima facie case. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999). Thus, McGraw has failed to show that by terminating his employment, CHA treated a similarly situated female employee in a different fashion than it treated him. Accordingly, we hold that McGraw has failed to present evidence from which a reasonable jury could conclude that all of the elements of a prima facie case against CHA for employment discrimination were met, and summary judgment is appropriate.
McGraw tenders no evidence in support of this claim.
Even if McGraw had met his burden of establishing an evidentiary basis for the four elements of his employment discrimination action, we believe CHA has plead a valid, non-discriminatory reason for terminating McGraw's employment, and McGraw has failed to present the Court with any evidence establishing that this reason was merely a pretext. In support of its decision to force McGraw to resign, CHA tenders evidence that it took this action only because he failed to report to work for an extended period of time without first obtaining written approval for his absence. McGraw's conduct violated CHA policy, which expressly authorized dismissal for his actions. We believe this is a valid, nondiscriminatory reason for firing McGraw, thus shifting the burden to McGraw to present evidence that the reasons upon which CHA based its decision to terminate him were a pretext for discrimination.
In the context of McDonnell Douglas burden shifting analysis, pretext "means a lie, specifically a phony reason for some action." Jackson, 176 F.3d at 983 (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Pretext may be established by direct evidence that it is more probable than not that the employer fired plaintiff for a discriminatory reason. See Jackson, 176 F.3d at 983 (quoting Sarsha v. Sears Roebuck Co., 3 F.3d 1035, 1039 (7th Cir. 1993). Pretext may also be established by indirect evidence that the tendered nondiscriminatory basis for firing plaintiff is not credible. See Jackson, 176 F.3d at 983. Indirect evidence of pretext consists of "demonstrating that the reasons are factually baseless, were not the actual motivation for the discharge, or were insufficient to motivate the discharge." Id. Either way, to defeat an adverse motion for summary judgment, plaintiff must "proffer significantly probative admissible evidence showing that the employer's articulated reason for the discharge was a pretext for discrimination." King v. Preferred Technical Group, 166 F.3d 887, 892 (7th Cir. 1999). Summary judgment is appropriate when plaintiff does not offer any evidence that the employer's stated reason for his termination was a lie, and there is no evidence that the employer's decision was not truly motivated and genuine.See Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 350 n. 3 (7th Cir. 1997).
McGraw faces a heavy burden in proving pretext. "When an employer articulates a reason for discharging the plaintiff not forbidden by law, it is not [the court's] province to decide whether that reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination." Brach v. Brock Confections. Inc., 109 F.3d 406, 411 (7th Cir. 1997); see also Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1292 (7th Cir. 1997) (courts do not assume the role of a "super-personnel department reviewing the business decisions of employers"). Courts should not scrutinize the employer's pre-termination investigation of plaintiff. See Sidney v. Humana Health Care Plan, 10 F. Supp.2d 1008, 1014 (N.D. Ill. 1998). Instead, the only issue is whether the employer honestly believed at the time of termination the reasons it gave for discharging plaintiff. See Bahl, 115 F.3d at 1292.
In his response brief McGraw does not point to any evidence that CHA's decision to fire him was not truly motivated, but was a pretext for discrimination. Instead, McGraw argues that the actual reason CHA terminated his employment was because he sought to obtain a conflict waiver that would allow his business to perform contracting work for CHA. However, McGraw has no evidence demonstrating that this was the true basis for CHA's decision to fire him. Therefore, we find that McGraw has not presented any evidence of pretext by CHA, and grant summary judgment.
CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is granted.