Opinion
CAUSE NO. IP02-C-349-B/S
March 31, 2004
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is an employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. The plaintiff, Jeffrey McMillian ("McMillian") alleges that his former employer, Defendant Banc One Securities Corporation ("Bank One"), discriminated against him on the basis of race by terminating him in a discriminatory manner when he failed to report his absences. Bank One moved for summary judgment arguing that McMillian failed to establish a prima facie case of race discrimination. For the reasons given below, weGRANT Defendant's Motion for Summary Judgment.
Factual Background
Plaintiff Jeffrey McMillian ("McMillian"), an African-American male, was employed by Defendant Banc One in 1999 and worked in the investments area as a Team Leader at the time of his separation from his employment on January 31, 2002. Team Leaders provide investment advice and support to Banking Center customers. McMillian worked out of two Banking Centers located in and around Speedway, Indiana. Def.'s Mot. for Summ. J., Ex. C, McMillian Dep. pp. 60-1, 64.
On Monday, January 28, 2002, McMillian reported to work but left the office in the mid-morning with stomach cramps and diarrhea. Id. pp. 89-91. McMillian did not contact his direct supervisor and manager, Jim Brocklehurst ("Brocklehurst"), to inform Brocklehurst of his absence. Id. pp. 90-93.
On Tuesday, January 29, 2002, McMillian failed to show up for work and did not communicate with anyone at Banc One, including Brocklehurst and the Speedway Banking Center Manager Todd Flick ("Flick"), regarding his absence. Id. pp. 92-93.
McMillian failed to show up for work again on Wednesday, January 30, 2002. Id. p. 97. Eventually, one of the plaintiff's co-workers at the Speedway Banking Center called him at home and left a message asking whether he would be coming into work. Id. pp. 93-95. McMillian returned her call and explained that he was "still under the weather." Id. p. 95.
Later that day, McMillian told Flick that he was still not "feeling well." Id. p. 96. Flick specifically advised McMillian that Brocklehurst had requested that McMillian contact him regarding his continued absence from work, but McMillian "didn't think it was necessary." Id. pp. 97-99.
On the morning of Thursday, January 31, 2002, the third full day of absence from work, Brocklehurst left a voicemail message at McMillian's office requesting that McMillian telephone him because he had not yet heard from McMillian. Id. pp. 97-100. McMillian responded to the voicemail with an email to Brocklehurst in which he stated that he was not "feeling well and probably [would] end up taking the rest of the week off." Id. pp. 101, 106 and Ex. 9 to Deposition. McMillian's email did not reach Brocklehurst until quite late in the work day.
On January 31, 2002, Banc One sent McMillian a letter informing him that he was being terminated for job abandonment. Def. Mot. for Summ. J., Ex. D, pp. 51-52; Ex. E, ¶ 5 and Ex. 1 to Affidavit. McMillian found the letter on his doorstep as he left for work on Friday, February 1, 2002.
Jeffrey Hunter is a Caucasian male who also worked for Banc One as a Team Leader from March 1999 to September 2001. Brocklehurst was his direct supervisor during his employment as a Banc One Team Leader. On at least five (5) occasions while he worked for Brocklehurst, Hunter was absent from work. On each occasion of his absence, he declares he contacted Brocklehurst by telephone and either spoke with him personally, left a voicemail message for him, or left a message with his administrative assistant Jessica Woodson ("Woodson"). We are not informed as to whether the absences appear to have been for consecutive two or three-day periods. None of his absences from work were documented as "unapproved" and he was paid for each of them. Moreover, he was never disciplined or terminated as a result of his absences. Hunter Aff, ¶¶ 1-6.
Legal Analysis Summary Judgment Standard
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
On a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case."Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 920. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg. 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.
Title VII Race Discrimination
Because McMillian has no direct evidence of discrimination, he may prove his case indirectly through the burden-shifting method outlined inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), and Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133 (2000). In order to establish a prima facie case of race discrimination using the indirect method, McMillian must present evidence that: (1) he is a member of a protected class; (2) he performed his job duties satisfactorily; (3) he suffered an adverse employment action; and (4) Bank One treated similarly-situated employees outside his protected class more favorably. Brummett v. Lee Enters., Inc., 284 F.3d 742, 744 (7th Cir. 2002).
McMillian, an African-American, is a member of a protected class. In addition, he suffered an adverse employment action when his supervisor, Brocklehurst, terminated him on January 31, 2002. McMillan, however, has failed to establish a prima facie case because he did not introduce evidence that similarly-situated employees not of his race were treated more favorably than he was. Curry v. Pulliam, 234 F. Supp.2d 921, 931 (S.D. Ind. 2002) (Barker, J.) (citing Bellaver v. Quanex Corp., 200 F.3d 485, 494 (7th Cir. 2000)). McMillian's prima facie case consists of the facts that he is African-American; he fell ill, causing him to miss more than three days of work; and he was fired. In other words, McMillian suffers from the plight of having no comparative evidence because he can point to no genuine comparators.
In the only example of a similarly-situated employee whom McMillian contends Bank One treated more favorably than he was treated, that conclusion simply is not sustainable. McMillian submits the declaration of Jeffrey Hunter, a Caucasian male who also reported to Brocklehurst, for the proposition that Brocklehurst did not fire Hunter for absences similar to McMillian's. Hunter's declaration states, in relevant part:
4. On at least five (5) occasions during my tenure as Team Leader under Jim Brocklehurst, I was absent from work On each of these occasions, I either contacted Jim Brocklehurst via telephone or notified Jim Brocklehurst by contacting his administrative assistant, Jessica Woodson, via telephone or by leaving a voice mail message for Jim Brocklehurst.
5. I was neither disciplined nor terminated as a result of any of my aforementioned absences.
6. None of my aforementioned absences were designated as unapproved and I was paid for each of the absences.
The incomparability of Hunter to McMillian is evidenced by the lack of information as to the seriousness of the derelictions by the employees, respectively. That is to say, we have no information as to how Banc One viewed the consequences of the absenteeism of Hunter vis-a-vis McMillian. In addition, Hunter's declaration does not disclose whether Hunter's absences were for consecutive days during which he went without informing Brocklehust. We agree with Banc One that Hunter's declaration implies that he was absent from work on at least five separate and unrelated days. Further, the declaration does not inform us as to the circumstances surrounding Hunter's absences from work
We are left perplexed by McMillian's reliance on Hunter's declaration, in any event, because it seems to suggest that Hunter did, in fact, contact his supervisor, Brocklehurst, via telephone or through Brocklehurst's administrative assistant, relative to each absence. If true, it appears Hunter never violated the Bank One attendance policy upon which Bank One relies in its briefing to explain McMillian's termination.
As a matter of law, we conclude that Hunter's conduct was not comparable in any substantial fashion to McMillian's so as to satisfy the fourth element of a prima facie case for race discrimination. The Hunter comparison is incomplete and arbitrary and reveals nothing concerning the discrimination alleged by McMillian. See Hiatt v. Rockwell Int'l Corp., 26 F.3d 761, 771 (7th Cir. 1994). Without demonstration of comparable disparity, McMillian cannot establish the disparate treatment element of a prima facie case. As such, we need not undertake the remainder of the burden-shifting analysis. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1036 (7th Cir. 1999) (finding proper district court's grant of summary judgment on grounds that plaintiff failed to establish fourth element of a prima face case of race discrimination).
Bank One's Motion for Summary Judgment is GRANTED.
Conclusion
For the reasons explained above, we conclude that McMillian failed to establish a prima facie case of race discrimination. Accordingly, weGRANT Defendant's Motion for Summary Judgment.
It is so ORDERED.