Opinion
TH 01-0160-C T/H.
October 16, 2002
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff sued Defendant alleging race discrimination, including failure to promote, denial of pay raises, constructive discharge, and hostile work environment. This case is before the court on Defendant's motion for summary judgment.
I. BACKGROUND
Plaintiff Betty J. Russell, an African American, worked for Defendant Eli Lilly ("Lilly") at its Clinton Laboratories facility since the early 1970s. In November 1986 she became a Senior Personnel Services Assistant.
In 1994 Lilly implemented a job posting system. Since the inception of that system and through the end of her employment with Lilly, Ms. Russell applied for only one promotion: a human resources associate position in late 1998. She did not receive this position which was given to Delores Brents, an African-American.
In her position as Senior Personnel Services Assistant, Ms. Russell received annual merit increases in pay every year except 1999. She only contends she was denied one pay raise, in 1999. Had she received a raise in 1999, it would have become effective in April of that year.
In October 1999, the recruiting duties of a coworker who was leaving Lilly's employ were reassigned to Ms. Russell who then was assigned to a new direct supervisor, Steven Pfotenhauer who was responsible for recruiting. Ms. Russell complained to her former supervisor, Susan Goodman, that the combination of her new duties, a proposed office move (which ultimately was not required of her) and her new supervisor was because of her age, sex and/or race. The next day, Lilly's Human Resources Manager, Catherine Carson, met with Ms. Russell to discuss her allegations. This was the first complaint Ms. Russell had ever made to Lilly management while working at Lilly.
Ms. Russell made another complaint to Ms. Carson in February 2000. She complained that Mr. Pfotenhauer did not appreciate her work and made too many negative comments about her work. Ms. Russell alleges that Mr. Pfotenhauer treated her in a demeaning and condescending manner. On May 15, 2000, Ms. Russell announced that she would retire from Lilly effective the end of that month.
Ms. Russell had requested a few times over the years that her position be reclassified at a higher level. It was not. Had her position been reclassified, the job would have been posted on Lilly's job posting system, and Ms. Russell would have had to apply for the reclassified position. No one will ever know whether she would have been selected for such a position had it been created. Even Ms. Russell acknowledges that there were no guarantees that she would have received the reclassified position.
On October 12, 2000, Ms. Russell filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging she believed she "had been harassed and not promoted because of my race Black. . . ." (Russell Dep. at 10 Ex. 2.) The charge does not mention a denial of a raise or constructive discharge.
II. SUMMARY JUDGMENT STANDARD
Summary judgment may be granted "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). The purpose of summary judgment "is to isolate and dispose of factually unsupported claims or defenses[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
The moving party bears the burden "of informing the district court of the basis for its motion, and identifying those portions of . . . [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. If the moving party meets this burden, then the non-moving party must "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)).
III. DISCUSSION
Plaintiff has brought claims of race discrimination, including failure to promote, denial of pay raises, constructive discharge, and hostile work environment. Defendant contends it should be granted summary judgment on all claims. A plaintiff claiming race discrimination in violation of Title VII can prove her claim with either direct evidence of an employer's discriminatory intent or under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff has no direct evidence of race discrimination, so she proceeds under the McDonnell Douglas framework.
A. Failure to Promote
Defendant first contends that Plaintiff's race discrimination claim based on a failure to promote must fail. To establish a prima facie case of discrimination based on a failure to promote, Plaintiff must demonstrate the following elements: (1) she is a member of a protected class; (2) she applied for and was qualified for an available position; (3) she was rejected; and (4) the position was filled with a person not in her protected class, or the position remained available. Howard v. Lear Corp. EEDS Interiors, 234 F.3d 1002, 1006 (7th Cir. 2000). Defendant contends Plaintiff cannot prove elements two and four.
Though Plaintiff has alleged that she was repeatedly denied promotions, she has identified only one promotion for which she applied and which she did not receive — the human resources associate position given to Ms. Brents, an African American. Because this position was filled by someone in the protected class, Ms. Russell cannot prevail on a race discrimination claim based on the failure to promote her to this position.
Plaintiff claims that she asked repeatedly to be promoted. However, she has offered no evidence that any of the positions to which she sought a promotion were open; nor has she offered any evidence that she ever applied for any such open position, or was rejected for such a position. An informal request for a promotion is not enough to establish a failure to promote claim. See Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2nd Cir. 1998). Plaintiff testified she did not apply for other positions because she was discouraged and believed she had no chance of being promoted. The failure to apply is fatal to any claim based on a failure to promote to such other positions. See Howard, 234 F.3d at 1006.
She seems to suggest that because Lilly did not directly address the informal requests for promotion in its initial brief, her failure to promote claim based on such requests survives summary judgment. However, given that a prima facie case of failure to promote requires a showing that, inter alia, the plaintiff applied for an open position, Lilly had no reason to anticipate Plaintiff would attempt to base her claim on informal requests for promotion. Rather, it was only after Plaintiff asserted the informal requests as a basis for her claim that Lilly had notice to address the requests. Thus, Plaintiff's argument is rejected.
Plaintiff claims that her position should have been reclassified. Because her position was not reclassified and thus her position as reclassified could not be considered open, Plaintiff cannot prevail on claim based on the failure to promote claim her to a reclassified position. See Howard, 234 F.3d at 1006 (holding female plaintiff failed to establish prima facie case of gender discrimination where she could not prove that managerial position which she sought to have created and filled by her was available or that the position was filled with a male or remained open). Even assuming that Plaintiff could show that her position should have been reclassified, she cannot prove that she should have been chosen to fill the reclassified position. Even Plaintiff candidly admits that she "would not have been guaranteed the job." (Pl.'s Answer Br. at 16 n. 5.) No one will ever know what other candidates would have applied for the reclassified position and whether one or more of them would have been more qualified for the position than Plaintiff. Plaintiff's belief that she most likely would have been given the reclassified position is speculation and thus insufficient to create a triable issue. See, e.g., Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931-32 (7th Cir. 1995).
Plaintiff claims that Lilly did not always follow its job posting requirements. She testified that a human resources position became available in late 1999 or early 2000 but was not posted, and she believed the position was given to Cheri Kinslow, a Caucasian. Plaintiff also testified that when she questioned Mr. Pfotenhauer about the job, he told her that Lilly could do whatever it wanted. Plaintiff, however, has offered no evidence to establish that she was qualified for the position allegedly filled by Ms. Kinslow, and the record does not raise a reasonable inference that Lilly's failure to post this job had anything to do with Plaintiff's race.
B. Denial of Pay Raise
Defendant next contends that Plaintiff's race discrimination claim based on the denial of a pay raise fails, advancing several reasons for this argument. Consideration of only two is sufficient for the court to conclude that this claim cannot survive summary judgment. (Either reason alone is sufficient to establish that the claim based on a denial of a pay raise must fail.) Though Plaintiff alleged in her Complaint that she was repeatedly denied raises because of her race, she has testified that she was denied a raise only once — in 1999.
Defendant is correct that this claim is time barred. In a deferral state, such as Indiana, a party alleging discrimination must file an EEOC charge within 300 days of the alleged discriminatory act. See, e.g., Doe v. R.R. Donnelly Sons, Inc., 42 F.3d 439, 445 (7th Cir. 1994). The failure to do so bars the claim for untimeliness. See, e.g., Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001); Doe, 42 F.3d at 445. Plaintiff filed her EEOC charge on October 12, 2000. She alleges a denial of a pay raise effective April 1999, which is more than 300 days before her charge was filed. A claim based on such a denial is therefore barred as untimely.
The continuing violation theory does not save Plaintiff's claim based on a denial of a pay raise. In National Railroad Passenger Corp. v. Morgan, the Supreme Court held that a discrete discriminatory act occurs on the day it happens. Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2070 (2002). The Court said:
discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred. . . .
. . .
Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable "unlawful employment practice."
Id. at 2072-73. The Morgan Court reversed the appellate court which had applied the continuing violation theory and held that as long as one act falls within the charging period, acts "plausibly or sufficiently related to that act" could be considered. Id. A denial of a pay raise, like a termination, failure to promote, denial of a transfer, or failure to hire, is a discrete discriminatory act. Thus, under Morgan, the continuing violation theory cannot save Plaintiff's claim based on a denial of a pay raise. Defendant should be granted summary judgment on that claim.
Defendant is also correct that the claim based on a denial of a pay raise is beyond the scope of Plaintiff's EEOC charge. As a general rule, a plaintiff cannot bring a Title VII claim not included in her EEOC charge. Cheek v. Western Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). This rule is not jurisdictional, but a condition precedent to bringing a Title VII claim. Id. A plaintiff may bring a Title VII claim that is "like or reasonably related to the allegations of the charge and growing out of such allegations." Id. A claim and an allegation in a charge "are not alike or reasonably related unless there is a factual relationship between them." Id. at 501.
The claim that Plaintiff was denied a pay raise in 1999 fails to satisfy these requirements. The charge alleges only racial harassment and the failure to promote; it does not mention a pay raise. Harassment, failure to promote, and denial of a pay raise are very different types of conduct. Also, the charge alleges that the earliest date of discrimination occurred on October 1, 1999, which would have been well after the denial of a pay raise effective April 1999. Plaintiff has not shown any factual relationship between the denial of a pay raise and the alleged harassment or failure to promote. Thus, the court concludes that a race discrimination claim based on the denial of a pay raise effective April 1999 is beyond the scope of Plaintiff's charge and would be subject to dismissal even if not time barred (which it is).
C. Constructive Discharge
The race discrimination claim based on a constructive discharge also falters under the scope of the charge doctrine. The charge does not allege constructive discharge, and the charge makes no suggestion that Plaintiff's working conditions were intolerable such that a reasonable person would have felt compelled to resign. See EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 331 (7th Cir. 2002); Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996). Even if a constructive discharge claim were within the scope of Plaintiff's EEOC charge, the claim would fail for want of proof that Plaintiff's working conditions were intolerable and that the working conditions had anything to do with her race, which evidence is essential to prove a constructive discharge claim, see Rabinovitz, 89 F.3d at 489.
The court rejects Plaintiff's argument that because her constructive discharge claim is brought under state law rather than Title VII, she was not required to include this claim in her charge. Though Plaintiff's prayer for relief seeks judgment under Title VII and other applicable state and federal laws, the Complaint's allegations clearly state that Plaintiff's action is "federal" and based on alleged violations of federal law, namely Title VII. (See Compl. ¶¶ 1-4, 9.) The court finds that her constructive discharge claim is brought under Title VII; thus, the scope of the charge doctrine applies to this claim.
D. Hostile Work Environment
Lastly, Plaintiff alleges a hostile work environment claim, which Defendant contends cannot survive summary judgment. To prevail on a hostile environment claim, a plaintiff must prove that "his or her work environment was both subjectively and objectively offensive; one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Cerros v. Steel Tech., Inc., 288 F.3d 1040, 1045 (7th Cir. 2002) (quotation omitted). A plaintiff must also prove that the harassment "was based on [his or] her membership in a protected class; that the conduct was severe or pervasive; and that there is a basis for employer liability." Id. (citations omitted). Defendant contends that Plaintiff cannot show that the alleged harassment was because of her race, or that it was sufficiently severe or pervasive.
Plaintiff cites to Cerros as support for her contention that merely being a member of a protected class is an element of a hostile work environment claim. The case provides no such support as the above quotation demonstrates.
Plaintiff does not directly argue that the alleged harassment was because of her race. More importantly, with a single exception addressed below, she presents no evidence which would raise a reasonable inference that any of the conduct about which she complains was because of her race. Plaintiff considered comments made and actions taken by Mr. Pfotenhauer to be offensive. Offensiveness alone is not enough. The conduct complained of must be offensive because of Plaintiff's race. See Cerros, 288 F.3d at 1045. Plaintiff relies on Mr. Pfotenhauer's comment to her about being "double jointed." Without citation to any authority, she argues that African Americans have been alleged to be double jointed. This argument gets Plaintiff nowhere as there is nothing besides her subjective opinion that this was a reference to her race. See Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 574 (7th Cir. 1998) ("[S]ubjective beliefs of the plaintiff . . . are insufficient to create a genuine issue of material fact.") (quotation omitted).
Plaintiff claims that Mr. Pfotenhauer's actions implicated race, but for support she relies solely on her own "feelings," subjective beliefs, and conclusions about what Mr. Pfotenhauer's meant, which are not enough to create a genuine issue. See, e.g., id. "Speculation does not meet a party's burden in defending a summary judgment motion. Facts, not an employee's perceptions and feelings, are required to support a discrimination claim." Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997) (citation omitted) (finding plaintiff's statement "I know what I felt" insufficient to show employer's discriminatory purpose). Plaintiff also believed that Mr. Pfotenhauer did not treat his white assistants in the same manner as he treated her. But her mere belief, without specific factual support in the record, is insufficient to create a triable issue. See, e.g., Fairchild, 147 F.3d at 574.
Plaintiff claims that there was a lack of promotions for African Americans at Lilly and that she learned about racial drawings and the presence of Ku Klux Klan literature. She offers no specific facts to substantiate her belief that African Americans were not promoted, so this claim fails to raise a genuine issue. See id. Plaintiff concedes that she lacks personal knowledge of the racial drawings or Klan literature; thus, her testimony as to these matters is inadmissible, Fed.R.Evid. 602, and the alleged minutes of the BEST meetings also are inadmissible as they are unauthenticated and hearsay, Fed.R.Civ.P. 802. Furthermore, even if admissible, as Plaintiff herself never saw the drawings or literature, they cannot establish that she was subjected to a racially hostile work environment. See, e.g., Mason v. S. Ill. Univ., 233 F.3d 1036, 1046 (7th Cir. 2000) ("[F]or alleged incidents of racism to be relevant to showing the severity or pervasiveness of the plaintiff's hostile work environment, the plaintiff must know of them."); Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7th Cir. 1998) (racial comments not made to plaintiff but made outside of his presence failed to create hostile environment); Johnson v. City of Ft. Wayne, 91 F.3d 922, 938 n. 8 (7th Cir. 1996) (concluding that conduct not directed at plaintiff and occurring outside his presence was insufficient to establish racially hostile work environment).
Plaintiff points to the alleged racial climate at Lilly to support her claim. Again, her conclusory assertions lacking specific factual support in the record are insufficient to raise a triable issue. Plaintiff urges the court to look at the historical context of the treatment of African Americans. But she also acknowledges that Lilly cannot be held liable for a society's ills. (Pl.'s Br. at 13.)
The sole exception mentioned earlier is Plaintiff's claim that she heard the word "nigger" used twice. Use of this racial pejorative is offensive and insensitive, but these two instances were isolated; they did not involve a supervisor of Plaintiff but coworkers; though said in Plaintiff's presence the words were not directed at her; and, moreover, these instances occurred in one instance "years ago" and in the other sometime before 1986. (Pl.s' Dep. at 169-70). Thus, the use of this pejorative in this case cannot establish a hostile work environment claim.
As to whether the alleged harassment was sufficiently severe or pervasive, the court finds that Plaintiff has not come forward with enough evidence to reach trial. When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotations and citations omitted). In deciding whether an environment is sufficiently severe or pervasive, a court must consider the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
Plaintiff's evidence does not support a reasonable inference that he was subjected to a sufficiently severe or pervasive hostile environment. The two uses of the racial pejorative were unquestionably offensive, but they were isolated incidents which occurred years ago. They therefore do not establish a racially hostile environment. See, e.g., Drake v. Minn. Mineral Mfg. Co., 134 F.3d 878, 884-85 (7th Cir. 1998). And these two isolated instances of the use of the racial pejorative by coworkers are all that Plaintiff really has to support her hostile environment claim. Thus, her hostile environment claim cannot survive summary judgment.
Since Plaintiff has not come forward with sufficient evidence to establish a hostile work environment, the court need not reach the question of employer liability and the affirmative defenses.
IV. CONCLUSION
Defendant's motion for summary judgment will be GRANTED for the reasons given above.ALL OF WHICH IS ORDERED this 16th day of October 2002.