Opinion
Cause No. IP00-0866-C-T
March 29, 2002
Lawrence M Reuben Attorney at Law, Indianapolis, IN.
Ellen E Boshkoff Baker Daniels, Indianapolis, IN.
Marty N Martenson The Martenson Law Firm, Atlanta, GA.
ENTRY DENYING PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION 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 to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendant filed a Motion for Summary Judgment. Plaintiff opposed the Motion.
The Magistrate Judge issued a Report and Recommendation granting Defendant's Motion. The Plaintiff then filed an Objection to the Magistrate Judge's Report and Recommendation. This court now OVERRULES Plaintiff's Objection and adopts the Magistrate Judge's Report and Recommendation as supplemented by this Entry.
I. Factual and Procedural Background
On December 26, 1998, Candy J. Scott and her then husband, Paul Scott, applied for employment as truck drivers with the Defendant, Genuine Parts Company. Steven Ward, the Defendant's Midwest Terminal Manager, was in charge of hiring truck drivers, but was on vacation. Therefore, the Scotts slid their applications under his door. On March 31, Ward interviewed Paul for a position. During his interview, Paul inquired about Plaintiff. Ward then remembered two applications being submitted, but because he could not locate Plaintiff's application, he invited her to fill out another application.
Plaintiff filled out the application and on March 31, was interviewed by Ward.
Plaintiff's application revealed that she had been convicted of three felonies for drug offenses and had served time in prison. Also during the interview, Plaintiff revealed that she had been terminated from her previous job as a truck driver at Ryder Integrated for failing a drug test. According to Ward, he advised her that the prior convictions and failed drug test made her an unsuitable candidate. According to Plaintiff, Ward told her that the convictions and failed drug test would not be a problem. In any event, subsequent to the interview, Ward declined to offer Plaintiff a job.
Either Plaintiff or Paul urged Ward to reconsider Plaintiff's application and he agreed to do so. Ward then contacted his supervisor, Paul Williams, and discussed Plaintiff's candidacy. Williams informed Ward that there was no need to send Plaintiff's application to him based on her history, which included the convictions and failed drug test.
Later, again based on Paul's request, Ward forwarded Plaintiff's application to Tom Williams, Defendant's personnel manager. Upon receipt of the application, Tom Williams asked that it be supplemented with an additional form. After Plaintiff filled out the form that was missing from her application, Tom Williams reviewed the application and concluded that Plaintiff was not a suitable candidate, again for the stated reasons of the prior convictions and the failed drug test.
On May 30, 2000, Plaintiff filed suit alleging gender-based discrimination under Title VII. On April 16, 2001, Defendant filed a Motion for Summary Judgment. Plaintiff opposed the Motion and also filed a Motion to Strike. On February 1, 2002, the Magistrate Judge issued a Report and Recommendation granting Defendant's Motion for Summary Judgment and denying Plaintiff's Motion to Strike. On March 18, Plaintiff filed an objection to the Magistrate Judge's Report and Recommendation. In her objection, the Plaintiff did not take issue with the Magistrate Judge's recommendation with regards to the Motion to Strike, but challenged the decision on the Defendant's Motion for Summary Judgment. This court now rules as follows.
II. Discussion
Plaintiff objects to both the Magistrate Judge's conclusions that she cannot prove that she was qualified for the job and that the Defendant's reasons for not hiring her were a pretext. As to the first item, as part of the prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff must establish that she: (1) is a member of a protected class, (2) applied for and was qualified for an open position, (3) was rejected, and (4) the position was filled with a person not in the protected class or remained open. The Magistrate Judge determined that although Plaintiff met three of the four criteria, she was not able to demonstrate that she was qualified for a truck driver's position "in light of her three felony convictions and her recent termination due to a failed drug test with Ryder Integrated, her previous employer." (Magistrate Judge's Report and Recommendation on Def's Mot. for Summ. J. at 8.) Plaintiff contends that this conclusion is incorrect because Defendant changed "those qualifications in mid-stream so as to have an adverse and negative effect on her and so as to make meeting those qualifications akin to hitting a moving target in the dark." (Pl.'s Objection to Magistrate Judge's Report and Recommendation on Def's Mot. for Summ. J. at 4.)
In support of her argument concerning her prior convictions, Plaintiff relies on the fact that the first Application for Employment she filled out did not ask if she had ever been convicted of a felony, Ward's inability to identify a written listing of job qualifications including the requirement that a driver have no felony convictions, and Ward's alleged statement that "old" convictions did not matter. As to the first contention, Plaintiff has presented no evidence that the application form was changed in response to her application. Rather the evidence shows that her first application was misfiled and then she was asked to fill out another form to apply for a job. In the interim (a new year had started), the application form had been changed to include, among other things, a broader question about prior criminal convictions. The form in use in late 1998 only asked about convictions in the previous seven years. The form in use in 1999, which the Plaintiff filled out prior to her interview, asked about any prior felony convictions, without a temporal limitation. The Plaintiff's convictions were more than seven years old, so if she filled out the 1998 form accurately, she would not have listed them. In fact, she does not contend that she listed them on that application. Because the misplaced initial application would not have had Plaintiff's prior convictions on it, it is unclear how Defendant would have known to change the form to force Plaintiff to disclose the prior convictions. That the change in application forms was somehow an attempt to discriminate against Plaintiff is an unreasonable inference, if not an absurd one. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is not required to draw every conceivable inference from the record in favor of the non-movant, but only those inferences that are reasonable).
Also, during his deposition, Ward was unable to locate a written list of job qualifications which discussed prior convictions. From this, Plaintiff tries to infer that there was no such job qualification. However, in Ward's deposition, he testified that he had adopted a policy of not hiring people for truck driving positions who have felony convictions. (Ward Aff. ¶ 5.) There is no requirement that job qualifications be written and the lack of a written list of job qualifications does not establish that the qualifications are not legitimate. This is not a case where the job qualifications are entirely subjective.
EEOC v. Sears, Robuck, Co., 859 F.2d 302, 331-32 (7th Cir. 1988). Rather, prior felony convictions (and failed drug tests) are objective criteria that are generally relevant to employment decisions and appear to be relevant to Defendant's employment decisions based upon the inclusion of questions about prior convictions on the application form.
Even if the pre-1999 application form asked about felony convictions-it just did not inquire as expansively as the 1999 form. And why would an employer not want to know a great deal about an applicant's criminal history before turning over perhaps hundreds of thousands of dollars worth of trucking equipment and products to that individual, and prior to incurring potential liability for negligent hiring or respondeat superior? Furthermore, Plaintiff has not presented any evidence that this was not the policy of the Defendant, by, for example, showing other people that were hired with prior felony convictions.
Finally, Plaintiff relies on her testimony that Ward told her that the convictions (and failed drug test) would not be a problem in hiring her. As the Magistrate Judge clearly recognized, Plaintiff testified that Ward told her the convictions would not be a problem whereas Ward testified that he told her the convictions rendered her an undesirable candidate. (Magistrate Judge's Report and Recommendation on Def's Mot. for Summ. J. at 3.) That conflict was clearly noted. There is no indication that the Magistrate Judge weighed this testimony, rather it appears to have been unnecessary to his determination.
Even if Ward did make the statement that the Plaintiff attributes to him during the interview, his actions in rejecting her application were confirmed by superiors up the chain of authority and were consistent with the unrebutted policy of the Defendant. In short, the Plaintiff's version of Ward's purported comments during the interview is not enough to raise a genuine question of fact about whether the Defendant considers felony convictions and drug test failures as disqualifying traits.
But another view of her account of the interview could be that it is inherently insufficient. "[T]estimony can and should be rejected without a trial if, in the circumstances, no reasonable person would believe it." Seshadri v. Kasrian, 130 F.3d 798, 802 (7th Cir. 1997). Further, self-serving affidavits that are unsupported by evidence in the record are also insufficient to defeat a motion for summary judgment. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001). In this case, the only evidence that the prior convictions would not be disqualifying is in Plaintiff's self-serving testimony. The uncontested evidence shows that the denial of her application was affirmed by Ward's superior and later her application was forwarded to yet another supervisor who determined that she was unqualified. The use of the question on the application form about prior felonies and Ward's supervisors' rejection of Plaintiff's application contravene Plaintiff's own statement that she was qualified and that Ward told her so.
Although in some cases a self-serving assertion may be sufficient to create a credibility dispute which is best left for trial, Szymanski v. Rite-Way Lawn Maint. Co., 231 F.3d 360, 365 (7th Cir. 2000), this is not such a case. In this case there is a total lack of support in the record for Plaintiff's statement distinguishing the current case from Szymanski. In Szymanski, the plaintiff brought a discrimination claim after he had been told he was hired and then not given the job. The company claimed that the plaintiff was not qualified and had never been hired. In support of each parties' claims, they offered self-serving depositions and affidavits. In reversing the district court's grant of summary judgment for the defendant, the court of appeals determined that "[w]here the moving party's version of material facts is supported solely by self-serving assertions, self-serving assertions to the contrary by the nonmoving party may be sufficient to create a credibility dispute which is best resolved at trial." Id. at 365. However, the plaintiff had gone on a sales call with an employee of the defendant, lending support to the plaintiff's allegation. In this case, there is no such outside support for the Plaintiff's claim and the Defendant's allegations are supported by objective evidence. The Plaintiff tries to rely on the changed application form, but, as discussed above, this does not support her claim. Because there is no evidence that the application form was changed due to the Plaintiff, the form demonstrates an objective, legitimate concern about prior felony convictions. In addition, the uncontested evidence shows that Plaintiff's application was reviewed by two of Ward's supervisors who also determined that she was not qualified for the job. Therefore, even if Ward had said that Plaintiff was qualified, two of his superiors disagreed.
Furthermore, as noted by the Magistrate Judge, the Department of Transportation ("DOT") has passed regulations which require drug testing in the trucking industry, including that "[n]o driver shall report for duty, remain on duty or perform a safety-sensitive function, if the driver tests positive or has adulterated or substituted a test specimen for controlled substances." 49 C.F.R. § 382.215. Although it is unclear if Plaintiff's earlier failed drug test would disqualify her from any employment with Defendant, clearly the DOT would prohibit her from performing "safety-sensitive functions" until such time as she passed a drug test. The significance of the DOT regulations is that they emphasize and corroborate the importance that an employer in the trucking industry might place on having drug-free applicants. Finally, Plaintiff has failed to offer any evidence that she was not hired because of her sex, by, for example, showing men that were hired with three felony drug convictions and failed drug tests. Although Plaintiff claims that Defendant hired a male truck driver with felony convictions by the name of Rollins or Rollen, she offers no admissible evidence other than her own deposition testimony in support of this allegation. Given all this, no reasonable jury could believe Plaintiff's self-serving, unsupported contentions.
Plaintiff's objection to the Magistrate Judge's reference to the Department of Transportation regulations, in which she discusses the enforcement of an arbitration award, is simply not relevant to the issue at hand.
In any event, even if Plaintiff's testimony is sufficient to establish a prima facie case (and pretext),
[T]here will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). That is the case here. First, as discussed above, there were questions about prior convictions on the application form and the rejection of Plaintiff's application by two of Ward's supervisors. In addition, there was the objective evidence of the concern in the trucking industry about drug use as illustrated by the Department of Transportation regulations. Finally, Plaintiff presented no evidence supporting any claim of discrimination or differing treatment of women. As recently noted by the Seventh Circuit, "[h]iring decisions are often difficult and sometimes require companies to make close calls, but those decisions are for the employer to make-not the court and not the jury-unless there is evidence of illegal discrimination." Millbrook v. IBP, Inc., 280 F.3d 1169, 1184 (7th Cir. 2002). Simply put, this is one of those cases where Plaintiff cannot prove intentional discrimination.
As to the second criteria for disqualification, the failure of a drug test at a previous job, Plaintiff relies on the lack of written list of job qualifications containing a failed drug test and the Defendant's drug testing policy. The first argument fails for the same reasons as above. There is no requirement that all bases for excluding employment or qualifications be written. Failed drug tests are an objective criteria that are relevant in employment decisions. It is sufficient that Ward had a policy of not hiring those that had failed drug tests. Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 765 (7th Cir. 2001) ("We do not tell employers what the requirements for a job must be."). Plaintiff's second argument also fails. Defendant's Substance Abuse Policy stated that "Any applicant who tests positive for a controlled substance would be disqualified from further consideration for employment for a period of no less than 12 months." (Ex. H.) This policy applied to the pre-employment drug test given by Defendant shortly before an applicant is offered a job. It in no way limits what factors the Defendant may look at before offering someone a job, including the reasons for leaving or being fired from previous jobs.
The Magistrate Judge also found that Defendant's reasons for not hiring Plaintiff were not a pretext. If plaintiff can establish a prima facie case of sex discrimination, defendant must then establish a legitimate, nondiscriminatory reason for its decision not to hire plaintiff. Plaintiff must then present sufficient evidence to raise an inference that the non-discriminatory reason is a pretext. In this case, Defendant has presented a legitimate, non-discriminatory reason, that being that Plaintiff has three convictions and was recently fired for failing a drug test. However, Plaintiff has failed to present sufficient evidence that those reasons are pretext.
As the Seventh Circuit recently articulated:
Without direct evidence of pretext (e.g., an admission), a plaintiff may show pretext by presenting evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge. But pretext requires more than a showing that the decision was mistaken, ill considered or foolish, [and] so long as [the employer] honestly believed those reasons, pretext has not been shown. We have warned repeatedly that we do not sit as a super-personnel department that reexamines an entity's business decision and reviews the propriety of the decision. With that admonishment, however, we have also stated that we need not abandon good reason and common sense in assessing an employer's actions.
Nawrot v. CPC Int'l, 277 F.3d 896, 906 (7th Cir. 2002) (quotations and internal citations omitted).
Plaintiff challenges the Magistrate Judge's finding on pretext by stating that the Defendant has not hired any female drivers as solo, over-the-road drivers, that Defendant changed the application form, and that Defendant changed the qualifications for the job.
Although Defendant has not hired any female, solo, over-the-road-drivers, it has hired six female drivers since 1998. One of these was a solo driver, although she was hired as a city driver. However, the usefulness of Plaintiff's information is impaired by the small number of hirings, only nine solo, over-the-road drivers in 2000 and 2001. Washington v. Elec. Joint Apprenticeship Training Comm., 845 F.2d 710, 715 (7th Cir. 1988), abrogated on other grounds by Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); Soria v. Ozinga Bros., Inc., 704 F.2d 990, 995 (7th Cir. 1983). In addition, Plaintiff has not shown that any men with felony convictions or failed drug tests were hired for those positions either. Johnson v. West, 218 F.3d 725, 733 (7th Cir. 2000) (a showing of pretext may be made by showing that similarly situated employees outside protected class were treated more favorably).
As to the last two contentions, they fail for the reasons stated above. Plaintiff has presented no evidence that Defendant changed the application form in an effort to discriminate against women or that the qualifications were changed at all. Although Plaintiff claims that there are male employees with felony records, she offers no admissible evidence in support of this theory. Simply put, there is no evidence to support Plaintiff's changed application or qualification theories other than her own unsubstantiated allegations. Because Plaintiff has not established that the Defendant's proffered reasons were factually baseless, were not the actual motivation for not hiring her, or were insufficient motivation to not hire her, Plaintiff has failed to establish pretext and Defendant's motion for summary judgment must be granted.
III. Conclusion
For the foregoing reasons, Plaintiff's Objections are OVERRULED. This court now ADOPTS the Magistrate Judge's Report and Recommendation on Defendant's Motion for Summary Judgment supplemented by this Entry, GRANTS Defendant's Motion for Summary Judgment, and DENIES Plaintiff's Motion to Strike.
ALL OF WHICH IS ORDERED