Opinion
No. 99 C 7065.
August 27, 2001
ORDER
Shahzad Niaki, an American citizen of Iranian origin, has filed suit against his former employer, Harza Engineering Company, alleging that Harza discriminated against Niaki based on his national origin in violation of Title VII of the Civil Rights Act of 1964. Specifically, Niaki claims, among other things, that Harza discriminated against Niaki in failing to send him to business conferences; failing to give him timely performance reviews; failing to give him a merit pay increase in 1999; denying Niaki's requests to manage certain projects; and in ultimately terminating Niaki from the company. Now, Harza moves for summary judgment on all claims. For the reasons set forth below, Harza's motion is granted in part and denied in part.
Analysis
I. Niaki's Performance Review, Business Conference, and 1999 Merit Pay Claims
Harza moves for summary judgment on Niaki's performance review, business conference, and 1999 merit pay claims, arguing that they fall outside the scope of Niaki's charge of discrimination filed with the Equal Employment Opportunity Commission ("EEOC"), and that they are time-barred. Niaki concedes that the claims are not explicitly listed in his EEOC charge but argues that the claims reasonably fall within the scope of the charge. Niaki also disputes whether the claims are time-barred.
The court need not reach the issue of whether the claims are time-barred because they fall outside the scope of Niaki's EEOC charge. Therefore, Niaki is barred from raising them in this suit. In Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 499 (7th Cir. 1994), the Seventh Circuit stated that "[t]he test for determining whether an EEOC charge encompasses the claims in a complaint" is whether the claims in the plaintiff's complaint are "`like or reasonably related to the allegations of the charge and growing out of such allegations.'" (citations omitted). The court in Cheek went on to explain that this standard "means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals." 31 F.3d at 500 (emphasis in original). The court in Cheek compared the plaintiff's charge to her complaint and, using the above test, found that because the plaintiff had failed in her EEOC charge to describe "with some degree of specificity" certain sex discrimination claims found in her complaint, those claims fell outside the scope of her charge. Id. at 502. The court held that the plaintiff was, therefore, barred from raising those claims. See id.
In the present case, plaintiff's EEOC charge contains the following allegations:
I. I began my employment with [Harza] in May 1992. My most recent position was Senior Project Manager. Througouth [sic] my employment I was harassed by constantly being told that I am not American. [Harza] refused to give me management assignments in the United States with the Army Corps of Engineers. On April 9, 1999, I was laid off.
II. [Harza's] reason for not giving me assignments with the Army Corps of Engineers was because I am not American. [Harza's] reason my [sic] lay off was "lack of work". [sic]
III. I believe I was discriminated against because of my national origin, non-American, in violation of Title VII of the Civil Rights Act of 1964, as amended, in that I was harassed, not given assignments with the Army Corps, and laid off when [Harza] was actively hiring.
(Niaki's EEOC Charge of July 12, 1999, Exh. A to Def. App. in Sup. of Mtn. for Sum. Judg. .) Niaki raises the following claims in his complaint: a failure to receive a "merit raise" in 1999 (Pl. Compl. at ¶ 10); a failure to receive "1996 and 1997 performance reviews until February, 1998" and to "receive a performance review for 1998" ( Id. at ¶ 11); a failure to receive invitations or approval to attend "various business meetings" and "professional conferences" that "certain American employees were invited to" or for which they received approval to attend ( Id. at 14); denials of requests to manage projects for the American Corps of Engineers ("ACOE") and the City of Chicago because, in the words of Niaki's supervisor Krishna Mayenkar, the ACOE and the City of Chicago "liked only Americans and did not like foreigners" ( Id. at ¶¶ 13, 16-17); "[t]erminating [Niaki's] employment because he is not of American national origin" ( Id. at ¶ 25(c)); "failing and refusing to reasonably investigate [Niaki's] complaints" of discrimination ( Id. at ¶ 25(b)); and fostering a "hostile and harassing work environment" for Niaki. ( Id. at ¶ 26.)
Harza contends that the claims regarding performance reviews, invitations to conferences, and the 1999 merit pay increase are not described in the EEOC charge and, therefore, fall outside the scope of the charge. In response, Niaki argues that these claims fall under a general harassment claim that he purportedly raises in his charge. Problematic for Niaki is that his harassment charge is not a general one; rather, it appears to be quite specific. The charge says that Niaki believed that he was harassed because he was "constantly being told that [he was] not American," not because he failed to receive a merit raise in 1999 or timely performance reviews or invitations to attend business conferences. (EEOC Charge at I.) Niaki's claim that his harassment charge covers these other claims is untenable.
Under Cheek, the conduct for which Niaki may sue must be described in his EEOC charge. In this case, the EEOC charge utterly fails to mention anything about performance reviews, business conferences, or merit raises. Harza's motion for summary judgment is granted as to Niaki's claims regarding performance reviews, business conferences, and a 1999 merit raise.
II. Project Assignment Claim
Niaki contends that he requested the opportunity to manage various engineering projects for Harza but was denied such opportunities because of his national origin. Niaki claims that between 1996 and 1999, his supervisor, Krishna Mayenkar, said "approximately 20 to 30 times that he did not select Niaki as project manager on various projects because he was not American, and the client liked Americans." (Pl. Stmt. of Add'l. Facts ("SAF") in Opp. to Def. Mtn. for Sum. Judg. at ¶ 173.)
Harza moves for summary judgment on this claim, arguing that what Niaki experienced was not a material adverse action under Title VII; that Niaki's project assignment claim is time-barred; that no reasonable person would believe Niaki's account of what Mayenkar said; and that Niaki has failed to show a link between what Mayenkar might have said and actions that he might have taken. Niaki vigorously disputes all these arguments.
A. Adverse Action under Title VII
Harza argues that being denied the opportunity to manage a project does not constitute an adverse action. Niaki suggests that the denial of project management work resulted in significantly decreased responsibilities and supervisory authority for Niaki, and that such an outcome constitutes an adverse action.
The Seventh Circuit has held that in order for a plaintiff to demonstrate that he suffered a materially adverse employment action, a plaintiff must demonstrate a "materially adverse change in the terms and conditions of employment" that must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Crady v. Liberty Nat'l. Bank and Trust Co. of Indiana, 993 F.2d 132, 135 (7th Cir. 1993). A materially adverse change might be indicated by many things including "significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Id. One district court has held that evidence of a supervisor's failure to assign certain tasks to a plaintiff that the plaintiff had performed in the past could be used to support a finding that the plaintiff had suffered significantly diminished material responsibilities, and therefore, a materially adverse employment action. See Alvey v. Rayovac Corp., 922 F. Supp. 1315, 1332 (W.D.Wis. 1996).
It appears that Niaki has raised a genuine factual issue as to whether his responsibilities decreased as a result of the denial of his request for project management assignments. As support, Niaki testifies that he was denied the chance to manage projects for which he had been project manager in the past. At his deposition, Niaki and Harza's attorney had the following exchange regarding one of the projects:
Q. So you also believe you were discriminated against because you weren't assigned to city of Chicago projects?
A. Also the CTA project, that was my project [before Niaki went to Jordan on a two-year assignment.] I mean, I was project manager for that and when I came back, I said let me be project manager for this project again. [Mayenkar] asked [sic], you know, American [sic] they don't like to work with non-American [sic]. Now, just he [sic] made me basically technical manager for one part of the CTA project.
(Niaki Dep., Exh. 1 to Pl. Exhs., ("Niaki Dep.") at 99:24, 100:1-10.) Furthermore, Niaki claims that on at least one project, he was denied the chance to manage it despite being entitled to do so given Harza's policies. Niaki and Harza's attorney had the following exchange:
Q. Other than Mr. Mayenkar's comments, do you have any facts other than those [comments] that he was discriminating against you because of your national origin?
. . .
A. Yes.
Q. What are those facts?
A. I submitted a project proposal [called the "Chicago Kildeer Brownfield"] to [sic] city of Chicago and I won the proposal. The proposal was awarded. They gave it to Dave Scharre . . . . When Krishna [Mayenkar] came back, I asked him why. He said you know, they don't like non-American [sic].
( Id. at 107:4-24, 108:5-7.) Regarding this proposal, for which he was proposal manager but not the project manager, Niaki explained that he prepared and wrote the proposal and that "[he] was proposed in the proposal as the project manager." ( Id. at 111:10-11.) According to Niaki, "when [Harza] win[s] [a] proposal, usually the proposal manager if his name also is project manager will be the project manager. . . ." ( Id. at 111:11-14.) However, Niaki points out, Harza's policy was not followed in his case.
Harza offers a number of arguments in opposition to Niaki's contention that he suffered an adverse action. First, Harza cites the case of Iovin v. Northwestern Mem'l. Hosp., 916 F. Supp. 1395, 1406 (N.D.Ill. 1996), in which the plaintiff claimed that the defendant's removal of him from certain projects constituted adverse actions. The district court, Harza points out, stated that "it is far from clear that this allegation can support a Title VII claim" because, among other things, "[t]here is no evidence in the record that Iovin was entitled to work on any project." 916 F. Supp. at 1406. Likening the present case to Iovin, Harza urges the court to follow the dicta in Iovin and hold that Niaki was not entitled to work on any project and, therefore, suffered no adverse action. Further, Harza argues that despite the fact that projects were assigned to others instead of Niaki, Niaki's responsibilities "were not diminished." (Def. Mem. in Sup. of Mtn. for Sum. Judg. at 9.) Additionally, Harza points out, it is undisputed that Niaki had been project manager for some projects during the time period in which Niaki claims discrimination.
Harza's arguments are unpersuasive. First, unlike in Iovin, there is evidence on the record in this case suggesting that Niaki was entitled to manage at least one project, the Chicago Kildeer Brownfield, for which he was denied the status of project manager. Therefore, even under Iovin's dicta, it appears that Niaki may be able to show that he suffered an adverse action. Furthermore, it is far from undisputed that Niaki's responsibilities had not diminished during the time that his requests for project management work were being denied. In its statement of uncontested facts ("SUF") in support of its motion for summary judgment, Harza asserts that "Niaki admits that his . . . responsibilities were not diminished after [others] were named project manager on various ACOE and Chicago projects." (Def. SUF at ¶ 89.) Page 176 of Niaki's deposition, which Harza references in support of paragraph 89 of its SUF, does not support Harza's argument, and in fact, suggests the opposite. On this page, Niaki testified that he had been demoted during the time that Harza was denying his requests to be a project manager. Niaki claims, and Harza does not dispute, that he was demoted from Section Head of his department to the status of Senior Project Manager. Niaki has not claimed that the demotion was discriminatory, but his demotion may be evidence that the denials of his project management requests were signs of a material change in his job responsibilities, underlined by the change in his job title. Finally, Harza is correct that Niaki had been project manager on some projects during the time period in question. Niaki concedes that he had been project manager on two "minor" projects in 1997: one requiring 60 hours of work for the ACOE in Colorado and one requiring 20 hours of work for the City of Chicago. (Affidavit of Niaki, Exh. 3 to Pl. Exhs., at ¶¶ 10-11.) However, these facts do not prevent a reasonable fact-finder from concluding that Niaki could have been a project manager on more projects, but for Harza's possible adverse actions. Niaki has offered sufficient evidence to create a factual issue as to whether he suffered an adverse action when his requests to manage projects were denied.
B. Statute of Limitations
Harza notes that Niaki's EEOC charge was filed on July 12, 1999, and therefore, Niaki is prohibited from suing for conduct that occurred before September 15, 1998, the beginning of the 300-day limitations period in Title VII cases. Harza points out that the last time that Niaki allegedly was denied a request to manage a project was March 20, 1998, well before the September 15, 1998 cut-off date. Therefore, Harza argues, Niaki's project management claim is time-barred. Niaki vigorously disputes Harza's argument, noting that Niaki has said all along that he is complaining about denials of requests for project management work made between 1996 and 1999. Harza replies that Niaki has failed to offer any evidence "beyond the self-serving statements" in his complaint to show that discriminatory comments and actions occurred after March, 1998. (Def. Reply at 5.)
Harza is incorrect. Consistent with allegations in his complaint, Niaki testified in his deposition that following requests to manage projects, Mayenkar told him "personally" on 20-30 occasions between 1996 and 1999 that Niaki could not manage projects because of his national origin. (Niaki Dep. at 117:1.) It is true that Niaki does not specify exactly when Mayenkar uttered these comments. Most of these comments may have been uttered before September 15, 1998, the beginning of the limitations period. In that case, summary judgment would be proper regarding claims for which pre-September 15, 1998 statements are offered as evidence of discrimination. Making all permissible inferences in favor of Niaki, however, at least some of Mayenkar's comments were made in 1999. Therefore, Niaki has raised a factual issue as to whether these project assignment claims are time-barred. Summary judgment is granted, though, as to those claims predicated on statements made before September 15, 1998.
C. Plausibility of Mayenkar's Statements
Niaki repeatedly claims that Mayenkar told him that he could not be a project manager for projects for the ACOE and City of Chicago because Niaki was not American, and these clients did not like non-Americans. Harza argues that the court should refuse to consider Niaki's "self-serving statements that Mayenkar allegedly made" because the evidence is "so . . . implausible on its face that a reasonable fact-finder would not credit it." (Def. Mem. in Sup. of Mtn. for Sum. Judg. at 7.) Essentially, Harza's argument is that it is highly unlikely that Mayenkar, who was born in India, would make such statements. As Harza puts it, the alleged statements by Mayenkar would mean, "ACOE and the City did not want to work with non-Americans like you [Niaki], except me." ( Id.) In support of its position, Harza cites the case of Wallace v. SMC Pneumatics, Inc., in which the court stated that it is highly unlikely that an American would make the self-contradictory statement, "All Americans are stupid [except for me]." 103 F.3d 1394, 1400 (7th Cir. 1997). Harza also argues that the court should presume that Mayenkar, as a person of foreign origin, would not discriminate on the basis of foreign origin. As support, Harza cites Mills v. First Fed'l. Savings Loan Assoc. of Belvidere, 83 F.3d 833, 842 (7th Cir. 1996) and Kumaran v. B.I.S., 1994 WL 505287, *6 (N.D.Ill. Sept. 15, 1994).
The court does not find Niaki's claim so implausible that no fact-finder would credit it. Given the evidence, a reasonable fact-finder could conclude that Mayenkar's alleged statements were not self-contradictory. Specifically, it is possible that Mayenkar did not mean to imply that certain clients dislike non-Americans, except for him. He might have implied that the clients disliked working with him, too. As support for this interpretation, there is evidence that Mayenkar may not have maintained an ideal relationship with at least one client in question. Niaki testifies that Mayenkar told him that the ACOE "didn't return his call[s]" and that Mayenkar, as a technical reviewer for ACOE projects, did not have a great deal of client contact with ACOE. (Niaki Dep. at 125:2.) A reasonable fact-finder could conclude that Mayenkar did not want to aggravate a tense relationship with these clients by exposing them to more persons of foreign origin. Additionally, the cases cited by Harza are not controlling here. In Wallace, the court noted that the plaintiff said that one of defendant's employees, a Japanese man, uttered the disparaging phrase in question, "All Americans are stupid." 103 F.3d at 1400. The court proceeded to hold, however, that there was no evidence indicating that the defendant employee who fired the plaintiff, an American citizen, uttered the disparaging phrase or acted with discriminatory animus. See id. In dicta, the court speculated that such evidence did not exist because it was unlikely that Americans would utter the phrase in question. See id. In this case, it is undisputed that Mayenkar was in charge of assigning projects to Niaki. Furthermore, Niaki claims to have witnessed Mayenkar's utterance of the discriminatory phrases in question. Therefore, Wallace is not on point. Further, Mills and Kumaran only suggest that a defendant employee's membership in a protected class is a relevant factor that undermines the plaintiff's claims of discrimination by those defendant employees. It is not a dispositive factor, however. Therefore, the fact that Mayenkar may be from a protected class does not preclude a finding of discrimination by Mayenkar. Niaki's evidence is not so implausible that a jury could not credit it.
D. Link Between Statements and Conduct
Harza argues that Mayenkar's discriminatory statements cannot be linked to the denial of Niaki's requests for project management work. As support, Harza points out, Niaki was assigned to manage some projects for the ACOE and the City of Chicago during the period in which the alleged statements were made, specifically between 1996 and 1999. Therefore, Harza argues, even if the phrases were uttered, Mayenkar failed to act on them.
Harza's argument is incorrect. In Sanghvi v. St. Catherine's Hospital, Inc., ___ F.3d ___, 2001 WL 747599, *2 (7th Cir. July 3, 2001) (citations omitted), the Seventh Circuit stated that the strongest form of direct evidence of discrimination is a statement that amounts to "`an admission by the decision-maker that his actions were based on the prohibited animus.'" According to Niaki's testimony, Mayenkar stated that the reason that Niaki was not assigned as a project manager to certain projects was that he was "non-American." (Pl. SAF at ¶ 168.) Under Sanghvi, Mayenkar's alleged statements, if true, would constitute strong direct evidence of discrimination regarding at least some of his actions. This would be true regardless of whether Mayenkar awarded other project management tasks to Niaki.
Harza's motion for summary judgment is denied as to Niaki's project assignment claim.
III. Niaki's Termination
Harza terminated Niaki on April 9, 1999. Niaki believes that Harza discharged him based on his national origin in violation of Title VII. Harza argues that Niaki has failed to satisfy the prima facie case for proving a discriminatory discharge and that in any event, Niaki has failed to show that Harza's reason for terminating him is pretextual. Niaki vigorously disputes both points.
A. Prima Facie Case
In order to establish a prima facie case of discriminatory discharge, a plaintiff must establish that (1) he is a member of a protected class; (2) he was doing his work well enough to meet his employer's legitimate expectations; (3) despite his performance, he was discharged; and (4) his employer sought a replacement for him, Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir. 1999), or that his employer treated similarly situated workers outside of his protected group more favorably. Gordon v. United Airlines, 246 F.3d 878, 886 (7th Cir. 2001). Harza argues that Niaki has failed to show that he was meeting Harza's legitimate work expectations and that Harza treated similarly situated employees outside of Niaki's protected group more favorably. Although the court will address the former point, it will not address Harza's latter point. It appears that in the Seventh Circuit, a plaintiff may satisfy the fourth element of a prima facie case for discriminatory discharge by showing either that his employer sought a replacement for him or that his employer treated similarly situated workers outside of his class more favorably. It is undisputed that Harza sought a replacement for Niaki at the time that he was terminated. Therefore, Niaki need not make a prima facie showing that Harza treated similarly situated workers outside his protected group more favorably.
Harza argues that Niaki has failed to show that he met Harza's legitimate work expectations. Specifically, Harza claims that Niaki failed to write well; failed to manage workers and communicate with colleagues well; failed to manage budgets of projects properly; and failed to satisfy the work expectations of at least one client. Niaki disputes this characterization of his performance, contending that his evaluations indicated that he was doing a good job; that a post-termination offer by Harza to hire Niaki for consulting services indicated Harza's approval of his performance; and that the evidence that Harza employs to demonstrate that Niaki performed poorly is unreliable.
Niaki appears to have raised a factual issue as to whether he was meeting Harza's expectations. Niaki first points to his evaluations. It is undisputed that between 1993 and 1996, Niaki's overall performance was rated either "good" or "excellent." (Niaki Evaluations, Exh. 3 to Def. Exhs. in Sup. of Mtn. for Sum. Judg.) For 1997, the year for which an evaluation does not exist in the record, Mayenkar testified in his deposition that Niaki's overall performance was "excellent," (Mayenkar Dep., Exh. 7 to Pl. Exhs., at 119:4-20) and one of Niaki's supervisors, Baum Lee, rated Niaki's performance as being "excellent to outstanding." (Def. Resp. to Pl. SAF at ¶¶ 89-90.) Though not stellar, even Niaki's 1998 evaluation, the last one performed prior to Niaki's termination in 1999, stated that Niaki's overall performance was "adequate," and that his performance in alleged areas of weakness (budgeting, management effectiveness, and client relations) was either "good" or "excellent." (Niaki's 1998 Evaluation, Exh. 3 to Def. Exhs., at D00051-D00052.)
Niaki also points to the existence of an offer from Harza to hire Niaki as a consultant to an overseas engineering project soon after his termination. It is undisputed that within three months of Niaki's termination, Harza offered Niaki a $100 per hour contract to consult on a Harza project in South Korea. The contract provided that Niaki "is to provide his services independently and without supervision or direction as to how [his] services are to be provided." (Niaki's Contract for Cons. Svcs., Exh. L to Def. Exh., at 1.) Niaki argues that the offer of this contract suggests that Harza must have thought that Niaki was good at his job.
Niaki has also raised questions about the reliability of Harza's evidence that Niaki was a poor performer. This evidence consists of documentation, which, Harza asserts, shows that Niaki had performance problems. The three main documents that Harza cites are Niaki's November, 1998 performance evaluation; a February, 1998 memorandum written by Mayenkar to Niaki complaining of Niaki's relationship to other Harza employees; and a summary of Niaki's performance at the company, written by Perry Sartori, Harza's Human Resources Director, detailing Niaki's supposed performance deficiencies as indicated by his past annual evaluations. Niaki attacks the reliability of all three documents.
Niaki points out the following undisputed facts regarding the 1998 evaluation: (1) contrary to Harza's company policy, the evaluation was never delivered to Niaki, and prior to his termination, Niaki had never seen or signed the evaluation; (2) although the evaluation is entitled, "Department Head's Annual Personnel Performance and Salary Review for Senior Engineer / Scientist Class 4-7," (Niaki's 1998 Evaluation, Exh. 3 to Def. Exhs) Jitendra Ghia, Niaki's Department Head, never signed the evaluation and had no explanation for his failure to do so; and (3) Mayenkar, who signed the evaluation, fails to remember whether he ever discussed it with Niaki and is unable to explain why neither Ghia nor Niaki signed the evaluation.
Niaki also attacks the reliability of a February, 1998 memorandum written by Mayenkar to Niaki. Niaki points out the following undisputed facts: (1) Mayenkar did not sign the memorandum, though he purportedly wrote it; (2) contrary to Harza's company policy, the memorandum was not copied to or discussed with Ghia; and (3) although the half-page memorandum covered over two years' worth of conduct, it failed to detail any specific incidents of misconduct. Niaki further questions the reliability of Sartori's summary of Niaki's work performance at Harza. Niaki points out the following undisputed facts: (1) The date on the first page of the summary says March 22, 2000 (almost one year after Niaki was terminated and five months after the start of this litigation); (2) Mayenkar cannot explain why the date on the first page says March of 2000; and (3) the summary was not given to Ghia, Mayenkar, or Niaki, though the summary indicates that it was being sent from Mayenkar to Niaki. Citing the date of the performance summary, Niaki argues that this performance summary was concocted during the litigation in order to bolster Harza's claims that Niaki was a poor performer.
Harza primarily responds that Niaki's "self-serving" statements about his performance are insufficient to create an issue of fact as to whether Niaki was meeting Harza's work expectations. (Def. Reply at 8.) Further, Harza argues that inconsistencies and problems in the documentation of Niaki's performance, such as the problem with the date in Sartori's performance summary, are "immaterial." ( Id. at 10.) Harza urges the court to focus its attention instead on Niaki's 1998 evaluation and Mayenkar's February, 1998 memorandum because these two documents, Harza argues, clearly show Niaki's performance deficiencies.
Harza's arguments are unpersuasive. Niaki's evidence does not consist of merely self-serving statements. In support of his argument that he met Harza's expectations, Niaki points to performance evaluations as well as the fact that Harza offered him a consulting contract following his discharge. These objective pieces of evidence lend credence to Niaki's claim that he was meeting Harza's expectations. Furthermore, problems with Harza's documentation are material because they tend to discredit the documentation as evidence that Niaki was a poor performer. To be sure, Harza has its own explanation for why Sartori's memorandum has a date of March, 2000 on the cover page of the memorandum (Harza blames a word-processing software glitch), or why Niaki did not receive a copy of the 1998 evaluation (Harza claims that its internal policies are not always followed). However, the court, on a motion for summary judgment, cannot decide whose account is correct and, ultimately, decide whether Harza's documentation is credible. That is the jury's function.
In light of Niaki's performance evaluations, the fact that Niaki was given a consulting contract so soon after his termination, and questions about the reliability of Harza's evidence of Niaki's poor performance, there is a genuine factual dispute as to whether Niaki met Harza's legitimate work expectations.
B. Pretext
Harza's reason for terminating Niaki was that he was an under-performer, whom Harza "could no longer carry" on its payroll. (Def. SUF at ¶ 74); (Sartori Dep., Exh. 9 to Pl. Exhs., at 46:20-21). Niaki says that this reason is pretextual.
In order to show pretext, Niaki must "demonstrate that [Harza's] reason is a lie or completely lacks a factual basis." Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000). Niaki attempts to do both. Niaki points to evidence, discussed above, which shows that he met Harza's legitimate work expectations. This evidence, Niaki argues, raises a genuine issue as to whether Harza's reason for his termination (that he was an under-performer) has any basis in fact. Niaki also points out that Harza has offered different reasons for his termination. Niaki notes that at an April 9, 1999 meeting at which he was terminated and in a letter dated the same day, he was told that the reason that he was being terminated was that there was a "lack of work" for him. (Ghia Dep., Exh. 5 to Pl. Exhs., at 146:8-15). In its memorandum in support of its motion for summary judgment, Harza says that Niaki was told at the April 9 meeting that he was being "laid off." (Def. Mem. in Sup. of Mtn. for Sum. Judg. at 14.) Niaki asserts, and Harza does not dispute, that no specific mention was made of Niaki's performance issues at either the meeting or in the letter. Now, Niaki points out, the company has offered a totally different reason for his termination, namely his poor performance. Niaki argues that Harza's inconsistent explanations show that Harza "either has no legitimate reason [for its actions], does not know what it is, or does not believe it." (Pl. Resp. at 14.)
Harza reasserts its arguments regarding whether Niaki met Harza's work expectations. Harza also argues that the reasons offered for Niaki's termination are reconcilable. For instance, the reason, Harza contends, that the termination letter failed to mention Niaki's performance issues was so that Niaki would be able to obtain unemployment compensation and maintain his "dignity." (Sartori Dep. at 47:15.) Niaki does not directly address Harza's attempt to reconcile its reasons for his termination, but contends that Harza's competing reasons for his termination constitute a "thicket of contradiction." (Pl. Resp. at 14.)
Niaki has demonstrated the existence of a genuine factual dispute as to pretext. Given the existence of evidence suggesting that Niaki's past performance appeared to meet Harza's legitimate expectations, a reasonable fact-finder could question whether Harza's reason for Niaki's discharge, namely Niaki's poor performance, has any basis in fact. Given the varying reasons that Harza has offered for Niaki's discharge, a reasonable fact-finder could conclude that the current reason offered for Niaki's discharge is pretextual. Harza's motion for summary judgment as to Niaki's termination claim is denied.
Conclusion
For the foregoing reasons, defendant's motion for summary judgment is granted in part and denied in part.