Opinion
No. 96 C 2276.
January 3, 2001.
MEMORANDUM OPINION AND ORDER
Plaintiff Tamala Reed brought suit under Title VII, 42 U.S.C. § 2000e, et seq., against Federal Express for firing her after a preventable accident involving her delivery truck. Reed contends that she was discriminated against on the basis of her gender because similarly situated male employees were not fired after comparable accidents. The court previously granted Federal Express's summary judgment motion as to Reed's state law claims, but denied it as to her Title VII claim. At the court's request, Federal Express has moved for summary judgment again, this time focusing on a narrower issue.
Background
At an October 20, 2000 pretrial hearing, the court requested that Federal Express submit another summary judgment motion addressing whether Reed could establish unlawful discrimination under Title VII based on her treatment in the company's Guaranteed Fair Treatment Procedure ("GFTP") following her termination. In reviewing the parties' motions in limine, the court had concluded that Reed could not establish discrimination based on the termination decision itself because she could not show that the same decision-makers were involved in her termination and the terminations of her alleged comparables. Under Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000), "[d]ifferent employment decisions, concerning different employees, made by different supervisors, are seldom sufficiently comparable to establish a prima facie case of discrimination for the simple reason that different supervisors may exercise their discretion differently." Coupled with the weakness of the factual similarities between Reed's accident and disciplinary history and those of her alleged comparables, the lack of a common decision-maker prevents Reed from making a prima facie discrimination showing as to the termination decision.
Underlying the court's denial of Federal Express's previous summary judgment motion was the recognition that common decision-makers in the GFTP may overcome the absence of common decision-makers at the level of the termination decision. ( See 3/9/2000 Order at 2 ("The difference in supervisors, however, is not dispositive and should not be, particularly in a case like this where Reed complained of her treatment all the way up the management chain.")) In its previous summary judgment motion, Federal Express did not focus on the GFTP as a potential source of discrimination, and so the court had no reason to weigh the parties' evidence on that issue. With trial looming, the Court became concerned that Reed may lack the proof necessary to escape a directed verdict on the only aspect of her claim that has any possibility of succeeding: discrimination based on the disparate treatment of Reed by decision-makers during the GFTP. For this reason, another round of summary judgment briefing was requested.
Analysis
Summary judgment is proper where "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). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Because Reed has offered no direct evidence of discriminatory animus, she must proceed under the McDonnell Douglas burden-shifting approach. To establish a prima facie case of disparate treatment Reed must establish that: (1) she is a member of a protected class; (2) she met her employer's legitimate expectations; (3) she was subject to an adverse employment action; and (4) similarly situated employees outside the protected class were treated more favorably. Plair v. El Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). As the court noted in its previous summary judgment ruling, the first and third elements are not disputed, and the second and fourth elements rise or fall together. Reed claims that because male employees were not discharged for similar accidents, her accident does not preclude a finding that she met Federal Express's legitimate expectations. To establish that similarly situated male employees were treated more favorably, Reed must show that the male employees "had comparable disciplinary records, committed similar misconduct and were treated differently by the same decisionmaker." Mercado v. American Airlines, Inc., No. 98 C 5316, 1999 WL 958527, at *4 (N.D. Ill. Oct. 12, 1999).
Because the lack of common decision-makers prevents Reed from showing that similarly situated male employees were not terminated following comparable accidents, she must show that she was treated differently from similarly situated male employees during the GFTP. Reed believes that a discriminatory animus can be inferred from the actions of Albert Shenouda, John Pettinger, Durward Gordius and the Federal Express employees responsible for responding to the Illinois Department of Human Rights. Most of the evidence relied on by Reed, however, bears only on the good faith with which Reed was treated by Federal Express. There is no evidence that she suffered the type of disparate treatment actionable under Radue.
Reed claims that Gordius failed to address Reed's complaints of unfair treatment, and that his reasons for supporting the termination were somehow misguided. Reed points to Pettinger as "the functional decision-maker" for her Step 2 appeal because he supplied the information to Schneider, the final decision-maker. (Resp. at 4) According to Reed, although Pettinger claims "not to have noticed that Ms. Reed was complaining about differential treatment of men," the jury "might conclude that something does not add up" in Pettinger's testimony, ( Id.) Reed contends that Pettinger's own disciplinary history was worse than Reed's, and that he "was blatantly ignoring" Reed's discrimination allegations. ( Id.) At Step 3, Reed argues, "the decision makers seem to have glossed over Plaintiff's yet more blatant allegation of discrimination." ( Id. at 5) Further, "[a]fter the filing of the formal discrimination complaint, Defendant went to the great length of lying to the governmental investigating authority regarding Plaintiffs' claim of discrimination." ( Id.)
Several of Reed's allegations, taken together, portray Federal Express as having tried to cover up its treatment of Reed, but she fails to show how the cover-up is relevant to her discrimination case. Her argument boils down to her contention that Federal Express decisionmakers denied her request for "an explanation of the different, better treatment that male employees had received." ( Id.) Certainly Reed is not suggesting that the failure to provide her with an explanation, standing alone, constitutes gender discrimination. Reed's claim is that she was treated less favorably than similarly situated male employees. If her claim is simply that she was treated poorly during the GFTP — as most of the arguments in her response brief suggest — she has no case.
As to the absence of common decision-makers between Reed and her alleged comparables, Reed insists that Federal Express "misses the point." ( Id.) She does not explain how Federal Express misses the point, but she nevertheless attempts to establish a common decision-maker. She alleges that McKinney was fired almost immediately before Pettinger's deposition, and that one of his supervisors was Pettinger. The court is unable to discern how this assertion helps Reed's case. If anything, it shows that Federal Express acted consistently in firing both Reed and MeKinney. To the extent that Reed is suggesting that MeKinney was fired only to aid Federal Express's defense in this litigation, she misses the point. Reed essentially is arguing that, absent the litigation, McKinney also would have been treated differently than Reed was, and that Pettinger may have been a common decision-maker. A prima facie showing of discrimination cannot be based on hypothetical scenarios.
Reed's only chance for prevailing hinges on Shenouda, who, according to Reed, "links many aspects of this case." ( Id. at 4) Reed asserts that Shenouda provided information to Sims and Nolan regarding their decision to terminate her. She also points to evidence that Shenouda provided information to the GFTP decision-makers regarding the merits of Reed's case. Reed attempts to link Shenouda to the decisions involving alleged comparables by alleging that he was aware of the Cobb and Mills accidents and the light discipline. ( Id.) Reed believes that Shenouda mischaracterized her position on the incident and unfairly suggested that the note from Reed's doctor was not authentic. Based on this evidence, Reed concludes that Shenouda's "insistence on Plaintiffs' culpability despite her repeated complaints about disparate treatment and the evidence of his knowledge of the facts in some of the men's cases, but his denials of same, may give rise to an inference that he harbored and acted upon discriminatory animus toward Plaintiff." ( Id.) On this record, the court disagrees.
The court is skeptical that Shenouda can be viewed as the decision-maker during any stage of Reed's GFTP. The fact that he provided the information on which others made their decisions does not transform him into the decision-maker. Even assuming that he can be viewed as the decision-maker to the extent that others merely rubber-stamped his recommendation regarding Reed, Reed has not shown that he was a decision-maker in the cases of the alleged comparables. See Mercado, 1999 WL 958527, at *4 (holding that plaintiff was not similarly situated to other employees based, in part, on fact that person who presided over plaintiffs' grievance hearing did not preside over other employees' hearings). Reed's only evidence linking him to the GFTPs for Cobb and Mills are the notations showing that he was copied on correspondence relating to those cases.
Reed hinges her case on the fact that Shenouda knew about the more favorable treatment of Cobb and Mills, and that he recommended a contrary decision for Reed despite that knowledge. Because Cobb and Mills were not similarly situated to Reed, the court does not see how Shenouda's mere awareness of the factual circumstances of their cases is legally relevant. More fundamentally, a decision-maker's knowledge that another decision-maker treated an employee in a certain way does not preclude her from treating a second employee differently. For a variety of reasons, two supervisors may make different employment decisions about employees who are otherwise similarly situated. The fact that they do not make the same decision does not create a cause of action under Title VII.
In that regard, Shenouda's knowledge that other supervisors acted in a particular way toward Cobb and Mills did not obligate him to recommend that other supervisors act in an identical manner toward Reed. It appears that Shenouda concluded — reasonably, in the court's view — that the employees cited by Reed were not similarly situated to her. Under Reed's suggested approach to Title VII liability, a supervisor would have no discretion in making an employment decision if she was aware of previous decisions made by other supervisors under similar circumstances, Reed has offered no legal support for this approach, nor has the court discovered any support for such a notion.
Conclusion
Because Reed has not produced evidence that would allow a jury to conclude that similarly situated male employees were treated more favorably than she was, she would not be able to escape a directed verdict for Federal Express. The court realizes that Reed has incurred significant expense in preparing for trial, and that resolving this case several months ago would have been more efficient for all concerned. However, as the court explained at the pretrial hearing, the arguments submitted with the initial summary judgment motion did not focus on the GFTP, and thus failed to convince the court that Reed could not establish discrimination at the GFTP level. With the GPTP issue now in focus, it is abundantly clear that proceeding with trial would be futile for Reed. Federal Express's amended motion for summary judgment is granted.