Opinion
Cause No. 1:03-CV-430-TS.
February 2, 2005
MEMORANDUM OF DECISION AND ORDER
This matter is before the Court on a Motion for Summary Judgment [DE 33], filed by the Defendants, Fort Wayne Community Schools (FWCS), Karen Bragg-Matthews, and Frank Jackson, on September 17, 2004.
BACKGROUND
On November 17, 2003, the Plaintiff, Tonya Sims, an African-American bus driver for FWCS, sued the school district and five individuals under 42 U.S.C. § 1981 and the Fair Labor Standards Act (FLSA) for suspending her without pay and terminating her employment because of her race and in retaliation for making a claim under the FLSA. On December 1, 2003, the Plaintiff amended her Complaint to add another Defendant, Mel Faulkner, a supervisor. On January 22, 2004, the Defendants filed their Answer and FWCS filed a Counterclaim against the Plaintiff for conversion, fraud, and unjust enrichment alleging that FWCS paid the Plaintiff wages for work she never performed. On February 9, 2004, the Plaintiff filed her Answer to the Counterclaim.
On June 25, 2004, the parties filed a Joint Stipulation to Dismiss With Prejudice four of the individual Defendants. After the Court approved the dismissal, only FWCS, Karen Bragg-Matthews, and Frank Jackson remained as defendants. On September 17, 2004, these remaining Defendants moved for summary judgment. The motion for summary judgment was fully briefed on November 19, 2004.
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment 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). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party." Dempsey v. Atchison, Topeka, Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted). "`Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.'" Abrams v. Walker, 307 F.3d 650, 653 (7th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe, 42 F.3d at 443.
STATEMENT OF FACTS
The Defendants contend that the Plaintiff engaged in two serious forms of misconduct that, in conjunction with her previous discipline, led to her termination under the school's progressive discipline policy. The Plaintiff argues that she was treated more harshly than similarly situated employees and that the real reason for her suspension and termination was her filing a suit against FWCS under the FLSA and her race. The facts provided below are supported by admissible evidence; they are stated in a light most favorable to the Plaintiff.
A. The Parties
The Plaintiff began working as a bus driver for FWCS in 1990. The Plaintiff worked out of the North Transportation Center where Deb Barton was her supervisor. Frank Jackson was the manager of the Center, and according to the Plaintiff, Jackson called the shots on the discipline that the Plaintiff received and was the key figure in all her discipline. Karen Bragg-Matthews was the human resources liaison to the transportation department and advised the department on discipline issues.
B. The FLSA Claim
In 1998, FWCS became aware that it had failed to compensate certain bus drivers overtime pay to which they were entitled under the FLSA. FWCS offered an accounting and payment to each affected driver, including the Plaintiff. Drivers who disagreed with FWCS's calculations could challenge them internally. The Plaintiff chose to file a complaint with the Department of Labor around March 1998 and sued FWCS in February 1999, asserting that the amount the school offered was less than she was owed. The lawsuit was resolved in February 2000.
C. Progressive Discipline Policy
The progressive discipline policy for bus drivers provides:
Progressive discipline will be applied in most cases when a threat to children or other behavior of a serious nature is not involved, starting with a verbal discussion with the employee. If the discussion is ineffective, or the misconduct is more serious, disciplinary alternatives will consist of:
1. Documented verbal reprimand
2. Written reprimand
3. Suspension
4. Termination
The number of steps will be determined by the administration based on the seriousness of the conduct. The supervisor shall consult with Employee Relations on disciplinary issues concerning the appropriate step.
The policy also provides that, when determining which steps to take, any or all of the following factors should be considered: (1) seriousness of the matter; (2) previous warnings; (3) similar situations; and (4) extenuating circumstances. The policy states that additional or continued violations will result in either a documented verbal or written reprimand, followed by either suspension or recommendation for termination. Progressive discipline steps may be skipped in cases of serious rule infractions.
The bus drivers' collective bargaining agreement also addressed discipline. It required that all derogatory material be removed from an employee's file if the material has been on file for two years and there has been no recurrence of circumstances similar to those that prompted the inclusion of the derogatory material.
D. The Plaintiff's Written Reprimand
In September 1998, the Plaintiff called the school to report that she would not be available for a 2:35 p.m. route because she was at her insurance agent's office and had failed to realize what time it was. The Plaintiff spoke to Sandy Hand, a secretary at the North Transportation Center. Hand reported to Barton that the Plaintiff called her at 2:30 p.m. Barton believed that Plaintiff's actions caused a hardship to the transportation department because of the difficulty in finding a substitute driver with such late notice. Barton informed the Plaintiff that she needed to notify the transportation department of absences more timely and directed her to turn in her overdue route cards, which are essentially directions that substitute drivers can follow when a regular driver is unavailable for her route. The route cards were supposed to have been completed in August.
Just one week later, Hand again informed Barton that the Plaintiff had called in at 2:30 p.m. to say she would not be able to drive her route. The Plaintiff did not provide a reason for her late call. On October 9, 1998, Barton issued the Plaintiff a written reprimand.
The Plaintiff's recollection is that she called in closer to 2:00 or 2:10, not 2:30, but acknowledges in her deposition that it was not alright to call in late or to fail to turn in route cards. The Plaintiff does dispute the form of discipline, a written reprimand, and argues that under the progressive discipline policy, she should have received a verbal discussion. Barton felt a written reprimand was appropriate because just one week earlier Barton had verbally counseled the Plaintiff for the same conduct.
E. The Plaintiff's Suspension Without Pay
The next time the Plaintiff's conduct resulted in discipline was nearly two years later, on September 29, 2000, when she was involved in a preventable accident with her bus. The Plaintiff was suspended for three days without pay on March 7, 2001, for the accident. At the time of her accident, FWCS's procedure for addressing accidents was to have a Safety Committee review the accident to determine if it was preventable. If the Committee decided that the accident was preventable, the driver was disciplined according to one of two tracks: drivers who had no prior discipline were disciplined under a stand-alone accident policy; drivers with previous discipline received the next disciplinary step under the progressive discipline policy.
The Safety Committee determined that the Plaintiff's September 29 accident was preventable. Because the Plaintiff had already received a written reprimand (on October 8, 1998, for calling in late), she was suspended.
F. Other Employees With Preventable Accidents
Judith Wheeler, another bus driver under Barton's supervision, was given a documented verbal reprimand for a preventable accident she had on March 19, 2001. The Plaintiff contends that Wheeler had an earlier preventable accident which should have resulted in a verbal discussion. Barton testified in her deposition that Wheeler did receive a verbal discussion for the previous accident.
Both the Plaintiff and the Defendants point to pages 37-38 of Barton's deposition to support their arguments regarding whether Wheeler received a verbal reprimand. The deposition reads:
Q. Now, in the body of this [documented verbal reprimand] it says, "You have been charged with 2 points bringing your total to 4 points." Do you see that?
A. Yes.
. . . .
Q. Does that mean that she had a preventable accident prior to the February 6, 2001, accident?
A. Yes.
Q. That's where the two (2) additional points would have come from?
A. Yes.
Q. Then, that also would have indicated there would have been a verbal discussion [for] the previous accident?
A. Yes.
Q. Did you have something else to say about that?
A. No.
(Barton Dep. at 37-38.)
The Plaintiff also asserts that Barton marked Wheeler's performance evaluation with reservations for attendance problems she had in 1996, 1997, and 1998. These absences were related to health and family problems and were recorded as sick days. Wheeler did not exceed her allowable sick days for these years. The only discipline Wheeler received for her absences was in 2000 when Barton gave her a verbal reprimand for her excessive absences. Barton acknowledged in her deposition that this was a mistake and should have been a written reprimand.
The Plaintiff also compares herself to Linda Biggs, another bus driver that was involved in preventable accidents. A February 25, 2002, record for Biggs indicates that she had been assessed ten points for being involved in preventable accidents. One accident resulted in five of those ten points. Because a later record, dated October 9, 2002, indicates that Biggs received one point each for three separate accidents, the Plaintiff concludes that Biggs must have been involved in one or two other accidents for which she was not disciplined. Accordingly, argues the Plaintiff, Biggs should have been terminated under the progressive discipline policy. Biggs's evaluations were also marked down for poor attendance, but she was not disciplined.
The Defendants assert that no accidents were unaccounted for. Rather, records reflect that the accident policy changed in fall 2002. The policy changed from a point system based on dollars of damage to a one-point-per-accident system. When the policy changed, old accidents, such as Biggs's five-point accident, were recorded as one point to conform to the new system. Biggs's record does not evidence unaccounted accidents, but a retroactive change in the accident policy.
G. The Plaintiff's Termination
On September 24, 2001, Bragg-Matthews informed the Plaintiff that she was suspending her without pay and recommending her for termination. The Plaintiff did not work another day at FWCS. Bragg-Matthews's decision was based on the Plaintiff's previous disciplinary record and information that the Plaintiff transported home a student from her route in her personal car and claimed pay to which she was not entitled.
(1) The Payroll Issues
Bus drivers fill out log sheets daily that contain coded information regarding the work they performed. Glenda Dornseif, a payroll clerk at the North Transportation Center, was responsible for reviewing and keying in the information from the log sheets, which would determine each driver's pay.
During 2001, the director of the transportation department asked Dornseif to review log sheets of all bus drivers who were assigned standby time. Kevin Bowser helped Dornseif review the log sheets and they discovered miscoding on the Plaintiff's sheets. Dornseif believed she did not notice the miscoding earlier, during her daily review of the Plaintiff's sheets, because she was still learning the coding system and because the Plaintiff regularly turned in as many as ten sheets at a time, which made it difficult for Dornseif to determine whether the Plaintiff's coding was correct.
Dornseif discovered three types of irregularities or coding errors: (1) miscoding of certain routes to collect more pay than was warranted for those routes; (2) recording of standby time for periods when it was not allowed; and (3) recording of time for substitute routes on days when the Plaintiff was sick. The Plaintiff disputes that she miscoded routes or claimed pay to which she was not entitled.
a. Recording of Standby Time
Bus drivers at FWCS were eligible for standby pay in addition to pay for driving routes if, among other things, the driver was authorized for standby and signed in at the transportation center. By signing in, dispatch was made aware that a driver was available to cover a route. The Defendants believe that the Plaintiff's log contained irregularities regarding standby time, such as failing to sign in, signing in late, and claiming standby time for times when it was not allowed.
Other drivers also had discrepancies and irregularities on their daily logs regarding standby time. When Dorseif discovered such irregularities, she notified the drivers' supervisors, who would then address the problem with the individual driver. Dornseif informed the Plaintiff's supervisor of her standby discrepancies, but then discovered additional irregularities that were not found on other drivers' logs. Jackson and Bragg-Matthews discussed these problems with the Plaintiff when they informed her that they were recommending her termination.
b. Miscoding of Routes
During the 2000-2001 school year, bus drivers identified whether their route was a whole or partial route. Generally, drivers received less pay for a partial route than a whole route. The Defendants believe that the Plaintiff miscoded certain routes to claim more pay that she was entitled.
The Plaintiff maintains that, under the collective bargaining agreement provisions regarding substitute routes and downtime between routes, she did not miscode any routes.
c. Substitute Routes
On February 8 and 9, 2001, the Plaintiff recorded both a substitute route and her regular route on her log sheet. According to her log sheets, however, she was sick and not working on these days. According to transportation department practices, drivers are only paid for their regular routes on sick days.
The Plaintiff contends that she was entitled to claim the substitute route because it was given to her on a long-term basis. Before her suspension, she had never been disciplined for claiming pay for her substitute route on a sick or personal day, nor was she refused payment for the route.
(2) Transporting a Student in Her Private Car
During the summer of 2001, Jackson asked Mel Faulkner, the Supervisor of Driver Operations at the North Transportation Center, to investigate a report that the Plaintiff was transporting a student on her route in her personal van rather than on her school bus. Faulkner drove to the middle school where the student attended school. Faulkner approached a bus driver and noticed a student sitting on her bus. The student indicated that the Plaintiff had been picking her up in her minivan.
Later, two witnesses, another bus driver and an administrative assistant at the middle school, advised Faulkner that they saw the Plaintiff pick the student up in her minivan. The administrative assistant told Faulkner she had seen the Plaintiff pick the student up in her minivan three or four times.
The Plaintiff acknowledges that she twice drove a student home in her minivan. She explains that on these occasion, no students were at the school for pick-up, so she returned her bus to the transportation center. The first time, she returned to the school in her van because she thought it odd that no students were at the pick-up. She saw a student waiting for her mom. The Plaintiff knew the student, who lived in the Plaintiff's neighborhood, and she offered her a ride home. The second time, the Plaintiff again had no students to drive home, so she went home and discovered a message from the student's mother to make sure that her daughter rode the bus that day. Since the student had not ridden the bus, the Plaintiff went back to pick her up in her van and take her home.
The Plaintiff contends that another driver, Laurie Dague, transported a student in her vehicle but was not disciplined. In support of this assertion, the Plaintiff points to an article from Bus Buzz, an informational publication, that contained a story about Dague. The article reported that after Dague completed her route and was on her way home in her personal vehicle, she noticed an elementary student at a bus stop who had been waiting nearly ninety minutes for a bus to take her to school. Dague questioned the girl, "and then took the girl to her residence." (Lynn Cooper Dep. at 9.) Lynn Cooper, Dague's supervisor, stated in his deposition that he was not sure if Dague actually drove the student home. ( Id.) In Dague's Affidavit, she submits that she did not drive the student home, but followed the student in her car as she walked home. The student was not a regular student on Dague's route.
(3) Termination Process
In a meeting held on September 24, 2001, Bragg-Matthews and Jackson notified the Plaintiff of Bragg-Matthews's decision to suspend the Plaintiff without pay and to recommend her termination. The Plaintiff was asked to explain why she transported a student in her personal vehicle. The Plaintiff declined to explain, stating only that she transported the student twice, but not in connection with her route.
Under the bus drivers' collective bargaining agreement, the Plaintiff could appeal Bragg-Matthews's termination recommendation both internally and to a third-party arbitrator. The Plaintiff's first appeal was denied in October. An arbitrator heard the Plaintiff's appeal in November and on December 4, the Plaintiff was notified that her appeal was denied and the termination recommendation would be presented to the school board. If the Plaintiff had not appealed the decision, it would have proceeded directly to the school board for processing.
DISCUSSION
In their Motion for Summary Judgment, the Defendants argue that the Plaintiff's § 1981 action must be dismissed. They contend that a federal action to enforce rights under § 1981 against a state actor may only be brought pursuant to § 1983, which the Plaintiff has failed to do.
The Defendants further assert that, even if the Plaintiff was granted leave to amend her Complaint to include a claim under § 1983, her claim would run afoul of the two-year statute of limitations applicable to § 1983 claims. The Defendants argue that the Plaintiff's alleged discriminatory acts, the latest of which occurred on September 24, 2001, when Jackson and Bragg-Matthews informed the Plaintiff of her suspension and termination, took place more than two years before she filed suit on November 17, 2003. The Defendants submit that the Plaintiff's internal appeal of her termination to the Human Resources Department and the arbitration did not toll the statute of limitations.
The Defendants also address the merits of the Plaintiff's claims, arguing that she cannot prevail against FWCS or Jackson and Bragg-Matthews in their official capacities because she lacks evidence that FWCS has a policy or custom of discriminating against African-American employees. As to Jackson and Bragg-Matthews in their individual capacities, the Defendants assert that the Plaintiff cannot point to a similarly situated white bus driver who was treated more favorably than she was and there were legitimate business reasons for her suspension and termination that were not pretextual. The Defendants argue that the Plaintiff's FLSA retaliation claim fails for these same reasons.
In her Response, the Plaintiff argues that the Defendants' reasons were false or not the real reason for the suspensions and the termination. As proof that retaliation, or the Plaintiff's race, was the real reason for the Defendants' actions, the Plaintiff points to other employees who engaged in similar conduct but were not disciplined as harshly. The Plaintiff submits that the arbitrator acted for the school board, which is the final policy making authority, and thus municipal liability can attach. The Plaintiff contends that the statute of limitations does not bar her claim because the Plaintiff suffered adverse action on December 4, 2001, when the arbitrator upheld the recommendation to terminate Plaintiff and when the board later ratified the arbitrator's decision. The Plaintiff does not address the Defendants' argument that state actors cannot be sued under § 1981 directly.
A. The Section 1981 Claim
Section 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981(a). In Jett v. Dallas Independent School District, 491 U.S. 701, 735 (1989), the Supreme Court held that 42 U.S.C. § 1983 "provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor." In 1991, Congress amended § 1981 to include "protection against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c). This amendment raised the question of whether Congress intended to overrule the Supreme Court's holding in Jett and create a cause of action against state actors under § 1981.
The Seventh Circuit has not directly addressed this issue and other courts have come to varied conclusions. However, the majority of circuit courts that have ruled on the issue have reaffirmed Jett's holding that a plaintiff's claim against a state actor for violation of the rights protected by § 1981 are redressible only under § 1983. See Oden v. Oktibbeha County, 246 F.3d 458, 462-66 (5th Cir. 2001) (concluding that Jett was not overruled by the 1991 amendments); Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000) (holding that Congress did not contemplate a cause of action against state actors outside § 1983); Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir. 1995) (concluding that 1991 amendments did not affect Jett); but see Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996) (implying a cause of action against government entities under § 1981 directly).
In Smith v. Chicago School Reform Board of Trustees, 165 F.3d 1142, 1148-49 (7th Cir. 1999), the Seventh Circuit analyzed a § 1981 trial award against a school board using the § 1983 framework. The court did not specifically address whether the 1991 amendments overruled Jett as it appears that issue was not litigated by the parties.
This Court finds that the reasoning of the cases upholding Jett is persuasive and adopts the well-reasoned opinion of the Fifth Circuit in Oden:
Subsection (c) does not expressly create a remedial cause of action against local government entities, and we are not persuaded that such a remedy should be implied. In Jett, the Court held that Congress intended § 1983 to be the sole remedy for discrimination by persons acting under color of state law. See Jett, 491 U.S. at 731, 109 S. Ct. 2702. The Court reasoned that § 1981 implicitly created an independent cause of action against private actors because no other statute created such a remedy. See id. at 732, 109 S. Ct. 2702. Because § 1983 provided a remedy against persons acting under color of state law, the Court declined to imply a cause of action under § 1981 independent of § 1983. We are persuaded that the conclusion in Jett remains the same after Congress enacted the 1991 amendments. Subsection (c) addresses only substantive rights. Section 1983 remains the only provision to expressly create a remedy against persons acting under color of state law. The addition of subsection (c) creates no more of a need for the judiciary to imply a cause of action under § 1981 against state actors than existed when the Supreme Court decided Jett.
The legislative history of the 1991 amendment is supportive of our conclusion. By enacting subsection (c), Congress stated that it intended to codify the Supreme Court's decision in Runyon v. McCrary. See Butts, 222 F.3d at 894 (citing H.R. Rep. No. 102-40(I), at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630; H.R. Rep. No. 102-40(II), at 37 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 731). See also Anderson v. Conboy, 156 F.3d 167, 179 (2d Cir. 1998). In Runyon, the Supreme Court reaffirmed that § 1981 implies a right of action based on racial discrimination against private actors. See Runyon, 427 U.S. at 174-75, 96 S. Ct. 2586. There is no congressional statement of intent to overrule Jett. By codifying Runyon, Congress confirmed that § 1981 implies a cause of action against private actors.
. . . .
Because Congress neither expressed its intent to overrule Jett, nor explicitly created a remedy against state actors in addition to § 1983, we are not willing to deviate from the Supreme Court's analysis of § 1981 in Jett.Oden, 246 F.3d at 463-64.
The Plaintiff may not bring her race discrimination claim against the Defendants, who are state actors, under § 1981. Such a claim may only be pursued through § 1983. The Plaintiff's Amended Complaint does not mention § 1983. The Defendants urge this Court to prohibit the Plaintiff from amending her Complaint to add a § 1983 claim of race discrimination. The Defendants argue that such an amendment would be futile because the Plaintiff's claim would be barred by the statute of limitations applicable to § 1983 claims.
B. Statute of Limitations
(1) Section 1983
In Indiana, courts dealing with § 1983 claims apply the state's two-year statute of limitations for personal injury claims. Brademas v. Ind. Hous. Fin. Auth., 354 F.3d 681, 685 (7th Cir. 2004). Therefore, the allegations regarding the Plaintiff's March 2001 suspension for calling in late, presented in her November 17, 2003, Complaint, are time-barred. The Defendants also argue that the September 24, 2001, suspension and notice that Bragg-Matthews would recommend the Plaintiff's termination fall outside the limitations period. In response, the Plaintiff ignores the September 24 date and argues that the school board did not act on the third party arbitrator's decision to uphold Bragg-Matthews's recommendation for termination until after December 4 and, thus, the termination claim is timely. If the Plaintiff's discrimination claim began to accrue in September, her claim is untimely and any amendment to add a § 1983 claim would be futile.
The statute of limitations for Indiana-based § 1981 actions is also two years. Copwood v. Lake County Community Dev. Dept., 932 F.2d 677, 678-81 (7th Cir. 1991). Therefore, if the Plaintiff's claims are untimely made under § 1983, they would have also been time-barred under § 1981.
Determining the timeliness of the Plaintiff's claim requires the Court to identify precisely the unlawful employment action of which she complains. See Delaware State College v. Ricks, 449 U.S. 250, 257 (1980); Kuemmerlein v. Bd. of Educ. of Madison Metro. Sch. Dist., 894 F.2d 257, 259 (7th Cir. 1990). In Delaware State College v. Ricks, the Supreme Court held that the proper focus, for statute of limitations purposes, is on the time of the discriminatory acts, and not the time at which the consequences of the acts become most painful. 449 U.S. at 258. The Court also found that entertaining a grievance does not suggest that an employer's decision was tentative but that "[t]he grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made." Id. at 261 (emphasis in original).
In Ricks, the plaintiff was denied tenure, and his employment terminated at the end of a one-year terminal contract offered upon denial of tenure. The Court was faced with the issue of whether the plaintiff's cause of action began to accrue when he was denied tenure or, later, when his employment was terminated. The plaintiff's complaint indicated that the denial of tenure was an act of discrimination. The plaintiff later argued that discrimination motivated the college not only in denying him tenure, but in terminating his employment after the one-year contract expired. The Court found that the plaintiff had not complained of discriminatory discharge and that "[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Id. at 257.
It appears that termination of employment at [the College] is a delayed, but inevitable, consequence of the denial of tenure. In order for the limitations periods to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure.Id. at 257-58.
Here, the Plaintiff alleges that race (and retaliation) motivated Defendants Jackson and Bragg-Matthews to suspend her and recommend her termination. Thus, her cause of action accrued in September when Jackson and Bragg-Matthews informed the Plaintiff of their decision. The Plaintiff does not claim that the school board was motivated by discrimination and makes no suggestion that the board treated her differently than other employees who were recommended for termination. Cf. id. at 258 (Ricks made no suggestion that he was treated differently from other unsuccessful tenure aspirants when he was terminated after the one-year contract). In fact, the Plaintiff does not allege anything specifically regarding the school board and its decision to terminate her.
The only specific allegation in the Amended Complaint made against FWCS regarding the suspension and termination is that "[o]n September 24, 2001, Defendant FWCS through Defendant, Karen Bragg-Matthews, recommended the termination of Plaintiff and suspended her without pay pending final determination regarding termination." (Amd. Compl., ¶ 27) (emphasis added). A plaintiff cannot maintain a § 1983 suit under a theory of respondeat superior. Monell v. Dept. of Social Servs., 436 U.S. 658 (1978).
In her brief opposing summary judgment, the Plaintiff argues that the adverse employment action (under the FLSA claim) was Towney's December 4, 2001, decision to uphold the Defendants' recommendation to terminate the Plaintiff. In her Amended Complaint, the Plaintiff alleges that the arbitrator, Towney, "officially terminated" her on December 4, 2001, basing his decision on the same reasons Bragg-Matthews's suspended her without pay. (Amd. Compl., ¶ 28.) Towney's decision, however, only upheld Bragg-Matthews's recommendation on appeal and "[a]n employer's refusal to undo a discriminatory decision is not a fresh act of discrimination." Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th Cir. 1992). Neither does the pendency of collateral review procedures toll the statute of limitations or indicate that the employment decision was tentative. Ricks, 449 U.S. at 261.
Because the Plaintiff does not generally distinguish between actions based on retaliation and those based on her race, the Court considers the Plaintiff's claims in their entirety to determine whether a § 1983 claim would be time-barred.
Although the Plaintiff arbitrarily points to the December 4 denial of her appeal as an adverse employment action — while discounting the recommendation of the two individuals she actually sued — she does not argue that Towney himself acted out of discriminatory motives. Instead, the Plaintiff anticipates an argument from the Defendants that Towney was an impartial third party that did not harbor any retaliatory intent or have any knowledge of the Plaintiff's FLSA suit, and submits that the retaliatory intent of the individual Defendants can be imputed to Towney "because they influenced his decision by concealing relevant information and feeding him false information." (Pf.'s Brief at 21.) This argument further verifies that the Plaintiff believes that Defendants Jackson and Bragg-Matthews were motivated by illegal motives when they took action to terminate her employment.
Towney is not named as a defendant. The Plaintiff cites Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394 (7th Cir. 1997) in support of her argument that the retaliatory intent of Jackson and Bragg-Matthews can be imputed to Towney. The issue in Wallace arose because the employee who had evidenced prejudice against the plaintiff did not have formal decision making authority over the Plaintiff's job. 103 F.3d at 1400. Here, the parties do not contend that Jackson and Bragg-Matthews did not have the authority to recommend the Plaintiff's termination and Wallace is inapplicable. Moreover, Wallace has no bearing on when the Plaintiff's cause of action accrued.
The suspension and decision to terminate the Plaintiff was an adverse employment action forbidden by law if done for discriminatory or retaliatory reasons. Jackson and Bragg-Matthews informed the Plaintiff of these actions on September 24, 2001. On this date, the Plaintiff's cause of action began to accrue. The board's final action in accepting the recommendation was a painful consequence of the alleged discriminatory decision by Jackson and Bragg-Matthews to terminate her; it was not a separate discriminatory act. See Equal Employment Opportunity Comm'n v. N. Gibson Sch. Corp., 266 F.3d 607, 618 (7th Cir. 2001) (holding that action alleging that school's early retirement plan violated ADEA accrued at the time employer made plaintiff aware that he would be subject to plan, not at time of his subsequent retirement); see also Kuemmerlein v. Bd. of Educ. of the Madison Metro. Sch. Dist., 894 F.2d 257 (7th Cir. 1990) (finding that teacher's cause of action began to accrue the day she learned of school's lay-off decision, not when classes began without her employ, despite evidence that teacher could have been recalled because school had practice of rehiring fifty-four percent of teachers given layoff notices). The board's act to ratify the termination recommendation was only a part of the harm that continued to flow to the Plaintiff as a result of Jackson and Bragg-Matthews's alleged discriminatory acts. See Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 552 (7th Cir. 1996) (finding that exam board's refusal to grant the plaintiff an extra attempt to pass exam or void previous results was not new act of discrimination where board already administered test without required accommodations).
Because the Plaintiff cannot sue the Defendants under § 1981, and even if she could, the discriminatory acts complained of fall outside the statute of limitations for §§ 1981 and 1983 claims, the Plaintiff's claim of race discrimination is dismissed.
(2) Fair Labor Standards Act
Retaliation claims under the FLSA, 29 U.S.C. § 215(a)(3), are governed by the statute of limitations found in 29 U.S.C. § 255. Crowley v. Pace Suburban Bus. Div. of Regional Transp. Auth., 938 F.2d 797, 799 (7th Cir. 1991). The statute of limitations under § 255 is two years "except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255. The Supreme Court has stated that an employer has committed a willful violation if it "either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." McLaughlin v. Richard Shoe Co., 486 U.S. 128, 133 (1988). The Plaintiff alleges that the Defendants violated the FLSA when they suspended and terminated her in retaliation for exercising her rights under the FLSA.
Although the Plaintiff bears the burden of showing that the Defendant's conduct was willful for purposes of the statute of limitations, Walton v. United Consumers Club, Incorporated, 786 F.2d 303, 308 (7th Cir. 1986), it is highly unlikely that any employer in today's climate would not be aware that intentionally terminating an employee for filing a complaint under the FLSA is unlawful retaliation.
The Plaintiff has not argued that the three-year statute of limitations is applicable, but instead submits that her claim was filed within two years. In her Amended Complaint, however, the Plaintiff alleges that the Defendants "willfully violated" the FLSA.
The question of whether an employer has acted willfully in relation to the applicable statute of limitations is treated the same as other factual determination that are routinely submitted to a jury. Bankston v. Illinois, 60 F.3d 1249, 1253 (7th Cir. 1995). In this case, there will be no question of fact whether the Defendants acted willfully if the Plaintiff's retaliation claim fails as a matter of law on its merits. Thus, the Court will address the merits of the Plaintiff's retaliation claim. In doing so, the Court will consider the March 2001 suspension and September 2001 suspension and recommendation of termination. However, even under the more generous three-year statute of limitations, the October 1998 written reprimand for calling in late is time-barred.
C. FLSA Retaliation Claim
Section 215(a)(3) of the FLSA makes it illegal "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter. . . ." 29 U.S.C. § 215. In resisting summary judgment, a plaintiff has two distinct ways of proving retaliation: the "direct" and "indirect" method. Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002).
The direct evidence approach requires a plaintiff to present evidence of (1) a statutorily protected activity; (2) an adverse action taken by the employer; and (3) a causal connection between the two. Sitar v. Ind. Dept. of Transp., 344 F.3d 720, 728 (7th Cir. 2003).
To establish a prima facie case of retaliation under the indirect method the Plaintiff must show that: (1) she engaged in statutorily protected activity; (2) she was performing her job according to her employer's legitimate expectations; (3) despite her satisfactory performance, she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in protected activity. Sitar, 344 F.3d at 728; Stone, 281 F.3d at 644. This rule was developed to clarify the traditional burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in the retaliation context, and eliminates the need for a plaintiff to show a causal link between protected activity and adverse employment action. Stone, 281 F.3d at 642-43.
If the plaintiff established a prima facie case of retaliation, the burden shifts to the defendants to provide legitimate reasons for any disparate treatment. Johnson v. Univ. of Wis.-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995). If the defendant provides such reasons, then the plaintiff must establish that the proffered reasons are pretextual. Id. Pretext is a dishonest explanation. Mistaken, ill considered, or foolish reasons do not constitute pretext if the employer honestly believed them. Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000); Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000).
The parties do not dispute that the Plaintiff engaged in protected activity and that her unpaid suspension and termination were an adverse employment action. Thus, to move forward under the direct method, the Plaintiff needs only to establish a causal link between her protected activity and her suspensions and termination. That is, had it not been for her protected activity she would not have been suspended or recommended for termination. See Stone, 281 F.3d at 643. The Plaintiff contends that she has established this causal link.
The Court disagrees. The Plaintiff has not established a causal connection between her protected activity and the Defendants' actions. A jury could not infer retaliatory intent form the evidence the Plaintiff presents.
Temporal proximity between the protected activity and an adverse employment action is evidence of causation. See Haywood v. Lucent Techs., Inc., 323 F.3d 524, 532 (7th Cir. 2003). However, "[a]s the time separating the protected conduct and adverse employment action grows, the causal inference weakens and eventually time becomes the plaintiff's enemy." Lavani v. Cook County, 269 F.3d 785, 790 (7th Cir. 2001). Here, the passage of time is far too great to infer a causal connection and time has become the Plaintiff's enemy. Bragg-Matthews did not suspend the Plaintiff and recommend her termination until three and one-half years after the Plaintiff complained to the Department of Labor and two and one-half years after she sued the school. See, e.g., Haywood v. Lucent Techs., Inc., 323 F.3d 524, 532 (7th Cir. 2003) (one year far too long to allow reasonable fact-finder to infer that termination was causally related to filing complaint); Paluck v. Gooding Rubber Co., 221 F.3d 1003 (7th Cir. 2000) (no causal inference after one year) ; Filipovic v. K R Express Sys., Inc., 176 F.3d 390 (7th Cir. 1999) (four months negates causal inference); Davidson v. Midelfort Clinic, 133 F.3d 499 (7th Cir. 1998) (no causal inference where employee fired five months after filing EEOC complaint).
The Plaintiff submits that she can demonstrate causation despite the substantial lag in time. Indeed, the Seventh Circuit has noted that "there will be cases in which a plaintiff can demonstrate causation despite a substantial lag time." Lalvani, 269 F.3d at 791 (citing Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997)). In Woodson, the plaintiff introduced evidence of a pattern of antagonistic behavior during the lag time 109 F.3d at 920-24.
The Plaintiff argues that she has provided additional evidence of a causal connection because she has shown that her employment record was unblemished before filing her wage claims against FWCS. To support her argument for causation, the Plaintiff relies on Shirley v. Chrysler First, Incorporated, 970 F.2d 30 (5th Cir. 1992), where fourteen months passed between the protected activity and the plaintiff's termination. In Shirley, however, the plaintiff presented not only evidence of her previously unblemished employment record, but also evidence that her supervisor, in addition to being abusive to her, mentioned her EEOC complaint twice a week, harassed her about the complaint, and made disparaging comments about it in addition to being abusive to her. 970 F.2d at 43. The Plaintiff does not present any evidence that Jackson or Bragg-Matthews made any disparaging comments to her regarding her lawsuit or said anything evidencing a retaliatory intent in connection with the decision to suspend her and recommend her termination.
The Plaintiff does present the affidavit of Gail Harris, a supervisor in the transportation department, which provides that during supervisory meetings, Jackson, Mel Faulkner, Barton, and others "discussed or complained amongst themselves about Tonya Sims [sic] Fair Labor Standards Act suit against Fort Wayne Community Schools." (Harris Aff., ¶ 8.) Harris does not describe the nature of these discussions or complaints or indicate when they occurred. Harris does not suggest that any of these discussion took place after the Plaintiff's lawsuit was resolved in early 2000. The Plaintiff was not terminated until over a year and one-half after her lawsuit was resolved and there is no evidence that supervisors discussed the Plaintiff's FLSA suit during this year and one-half interim. Thus, the only thing Harris's affidavit proves is that unidentified stray remarks were made at some unspecified time during the Plaintiff's employment. Stray workplace remarks do not qualify as direct evidence of discrimination unless the Plaintiff can show they were related to the employment decision at issue. Eiland v. Trinity Hosp., 150 F.3d 747, 751 (7th Cir. 1998).
Again, time has become the Plaintiff's enemy in her attempts to establish a causal link. Harris's affidavit hardly presents a pattern of antagonistic behavior or harassment related to her lawsuit that, in two cases outside the Seventh Circuit, was sufficient to overcome the substantial lag times between protected activity and adverse employment action.
The Plaintiff also argues that she can establish causation because the discipline she received was pretextual and was more severe than other similarly situated employees who did not file complaints against FWCS. The Plaintiff again points to a case outside the Seventh Circuit, Robinson v. Southeastern Pennsylvania Transportation Authority, 982 F.2d 892 (3d Cir. 1993), to support her argument that such evidence establishes causation. Even if this case stood for this proposition, the Plaintiff's evidence does not establish causation. Rather, the Plaintiff, without saying so, is attempting to use the indirect burden-shifting method to prove that her discipline and termination was retaliation for her wage complaint. Therefore, the Court will apply the indirect burden shifting method set forth above.
In Robinson, trial judge determined that the plaintiff's "direct supervisors . . . began a pattern of harassing Robinson by repeatedly disciplining him for minor matters, miscalculating his points for absences from work, and generally trying to provoke Robinson to insubordination." 982 F.2d at 895. The court was faced with the issue whether the trial judge's conclusion that this series of events was causally linked to the plaintiff's termination over a year and one-half later was supported by sufficient evidence.
The temporal proximity noted in other cases is missing here and we might be hard pressed to uphold the trial judge's finding were it not for the intervening pattern of antagonism that [the defendant] demonstrated. As the trial judge found, [the defendant] subjected Robinson to a `constant barrage of written and verbal warnings, inaccurate point totalings, and disciplinary action, all of which occurred soon after plaintiff's initial complaint and continued until his discharge." The court reasonably could find that the initial series of events thus caused Robinson's and [the defendant's] relationship to deteriorate, and set a pattern of behavior that [the defendant] followed in retaliating against Robinson's later efforts at opposing the Title VII violations he perceived.Id. (citations and ellipses omitted).
Again, there is no dispute that the Plaintiff engaged in protected activity and suffered adverse employment action. To survive summary judgment, the Plaintiff must establish a genuine issue of fact as to whether she was meeting her employer's legitimate expectations and whether similarly situated employees who did not complain were treated more favorably. Sitar, 344 F.3d at 728; Stone, 281 F.3d at 644. Failure to satisfy any one element of the prima facie case dooms a plaintiff's retaliation claim. Mitchell v. Dutchmen Mfg., Inc., 389 F.3d 746, 750 (7th Cir. 2004).
The Defendants contend that the Plaintiff was not meeting legitimate expectations when she had a preventable accident with her bus, drove a student home from school in her own van, and falsified time sheets. To establish that the discipline she received (which would tend to show that she was not meeting her employer's legitimate expectations) was pretextual, the Plaintiff argues that she was disciplined more harshly than similarly situated employees. While a plaintiff must meet each prong of the prima facie test before it becomes necessary to address pretext and may not put the "pretext cart before the prima facie horse," it is appropriate, in limited circumstances, for the prima facie case to be subsumed into the pretext analysis. Brummett v. Lee Enters., Inc., 284 F.3d 742, 744-45 (7th Cir. 2002). This merger analysis is appropriate where the plaintiff alleges that the reason for the adverse employment action is a sham designed to hide the employer's retaliatory purpose. Id. at 745; Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 807 (7th Cir. 1999) (whether plaintiff was meeting employer's legitimate expectations dovetailed with the pretext issue).
The Plaintiff argues that the sham is evidenced, inter alia, by the fact that similarly situated employees were not disciplined for the same behavior for which she was suspended and terminated. Therefore, the Court will address whether these individuals are similarly situated at the same time that it addresses the other reasons the Plaintiff proffers to show that her discipline was a pretext for retaliation. The Court notes that the Plaintiff must point to similarly situated employees who were treated more favorably if her retaliation claim is to survive summary judgment.
The Plaintiff does not dispute that she was involved in a preventable accident with her bus or that it was a legitimate expectation of her employer that its drivers avoid accidents. Instead, she claims that she should not have received a suspension without pay under the progressive discipline policy. The basis of her argument is that her previous written warning from October 1998 should have been removed from her record in accordance with the collective bargaining agreement because it was over two years old when she was suspended. The Plaintiff's argument erroneously focuses on the date the discipline for the accident was imposed rather than the date of the accident. The Plaintiff received the written reprimand on October 8, 1998, and had the accident on September 29, 2000, within two years of the written reprimand. Thus, at the time of the accident, the written warning was still appropriately in her file and Jackson properly relied on it to proceed to the next step of progressive discipline, a suspension.
The Plaintiff also points to another driver, Linda Biggs, that she believes was treated more favorably as evidence that she should not have received a suspension for the accident. The Plaintiff's argument regarding Biggs, however, is premised on the Plaintiff's belief that Biggs's driving record evidences accidents that Biggs was involved in, but for which she did not receive discipline. The Plaintiff misunderstands the record. The confusion in Biggs's record stems from a retroactive application of the accident policy; there are no unaccounted for, undisciplined accidents.
The Plaintiff also argues that Biggs should have received some kind of discipline for the attendance problems that were noted in her 2000 evaluation. The Plaintiff submits that this discipline, in addition to the unaccounted accidents, should have resulted in Biggs's termination. As already determined, there were no unaccounted accidents. Regarding the attendance issues, the Plaintiff's suspension relating to her attendance is time-barred. But even if the Court did consider attendance issues of other employees, the Plaintiff has not presented sufficient evidence for this Court to determine that Biggs was similarly situated to the Plaintiff:
In determining whether two employees are similarly situated a court must look at all relevant factors, the number of which depends on the context of the case. Spath v. Hayes Wheels Int'l-In., Inc., 211 F.3d 392, 397 (7th Cir. 2000). For example, in disciplinary cases — in which a plaintiff claims that he was disciplined by his employer more harshly than a similarly situated employee based on some prohibited reason — a plaintiff must show that he is similarly situated with respect to performance, qualifications, and conduct. Byrd v. Ronayne, 61 F.3d 1026, 1032 (1st Cir. 1995). This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them.Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). The Plaintiff contends that Deb Barton was Biggs's supervisor and was the one who afforded Biggs leniency. Barton was also the supervisor who gave the Plaintiff a written reprimand for calling in late. However, the Plaintiff's complaints of retaliation are against Jackson and Bragg-Matthews, not Barton. Additionally, the Plaintiff does not indicate whether Biggs's "attendance problems" were similar to the Plaintiff's late call-ins to report an absence. The Defendants argue that Biggs's absenteeism was high but within the allotted sick days for bus drivers. As such, no discipline was warranted. Further, the Defendants argue that absenteeism is substantially different than calling in five minutes before students are to be picked up twice in one week. In fact, the Plaintiff herself agreed in her deposition that it was not alright to call in late or fail to turn in route cards. Thus, the Plaintiff has not shown that Biggs engaged in similar conduct without differentiating or mitigating circumstances that would distinguish her conduct and her employer's treatment of them.
In her Response to the Defendants' Motion for Summary Judgment, the Plaintiff argues that her conduct was not serious because the Defendant "maintains standby drivers for this very occasion. If there is an emergency or late notice by a driver there are drivers standing by to handle the driver's routes. That is what happened in this case, Defendant simply dispatched a standby driver to cover Plaintiff's route." (Pf.'s Brief at 24.) The Plaintiff does not support these statements with evidence in the record or point to any other driver who called in late.
The Plaintiff also identifies Linda Wheeler as a bus driver that was not disciplined as harshly a she for absences and preventable accidents. Wheeler's attendance problems, like Biggs's, are distinguishable from the Plaintiff's late call-ins. Also, none of Wheeler's accidents went undisciplined. Wheeler, however, received two documented verbal reprimands, one for a preventable accident and one for attendance problems. One of these should have been a written reprimand. Barton acknowledged this in her deposition and explained that it was "missed."
This evidence does not create a material issue of fact as to whether the Plaintiff's discipline was pretext. It does not establish that the Defendants' reasons were (1) factually baseless, (2) not the actual motivation for the discharge, or (3) insufficient to motivate the discharge. Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1130 (7th Cir. 1997). It establishes only that Barton made a mistake when disciplining Wheeler. But pretext is more than an employer's mistake; it is a phony excuse. Hudson v. Chicago Transit Authority, 375 F.3d 552, 561 (7th Cir. 2004). And here, the employer's mistake did not even involve the Plaintiff. Under the terms of the progressive discipline policy, the Plaintiff was disciplined appropriately. That Barton mistakenly gave two verbal warnings to another employee does not establish that Jackson did not honestly believe that the Plaintiff was disciplined correctly under the progressive discipline policy for her preventable accident.
The suspension for the preventable accident was still in the Plaintiff's file when the Defendants discovered that the Plaintiff had driven a student on her route home in her personal vehicle. The Defendants submit that this was a violation of work rules 36 and 37. To show that she should not have been disciplined for driving the student home, the Plaintiff disputes the facts surrounding her actions and points to another driver who did the same thing but was not disciplined. Curiously, the Plaintiff did not provide the explanation to the Defendants that she now advances to explain why she drove a student home in her minivan. This presents a problem for the Plaintiff who is attempting to show that the discipline was a sham. At the time the Defendants disciplined the Plaintiff, they had information that the Plaintiff picked the student up from school in her minivan at least three or four times. In her deposition, the Plaintiff admits that she has no evidence that Jackson did not honestly believe that she was driving a student home in her personal van instead of the bus. (Pf.'s Dep. at 89.)
Even if she had told her story to Jackson and Bragg-Matthews when they confronted her with the reasons for recommending termination, instead of waiting until she appealed the recommendation for termination, Jackson could reasonably have chosen not to believe the Plaintiff because of other information he received. Not only did eyewitnesses say they saw the Plaintiff pick the student up three or four times, but the student indicated that the Plaintiff had been driving her home. This would not support the Plaintiff's explanation that she drove the student home only twice: once after a chance encounter and once after receiving a message from the student's mother at home. Moreover, the Plaintiff's own characterization of her actions as "looking out for the best interest of the student and being a good samaritan," Pf.'s Brief at 27, are irrelevant to her employer's perception of her unauthorized activities.
Equally, if not more, damaging to the Plaintiff's claim, is her failure to point to a similarly situated driver who was treated more favorably. Laurie Dague, the employee the Plaintiff points to as having done "the exact same thing" as the Plaintiff, but not disciplined, did not engage in comparable activity when she followed a student home in her vehicle after noticing the girl waiting at a bus stop. Unlike the Plaintiff, Dague did not transport a student on her route home in her car, and her actions are readily distinguishable.
The Defendants submit that three types of discrepancies were discovered on the Plaintiff's log sheets. Bragg-Matthews pointed to one of these in her list of reasons for recommending termination. Bragg-Matthews stated that the Plaintiff falsified her daily log sheet on February 8 and 9, 2001, when she indicated that she drove Bus #98 but actually took one and one-half personal days. The Plaintiff claims that she was entitled to claim pay for the substitute route she would have worked on those days because it was a regular long term standby route. The Plaintiff contends that she always got paid for long term substitute standby routes when she took personal or sick days and was never told not to claim them and was never refused payment. This argument does not establish that it was not, in fact, a violation of FWCS's payroll policies to claim sick pay for substitute routes, or that Jackson and Bragg-Matthews did not believe it to be a violation. Nor does the Plaintiff point to any other employee who got paid for substitute standby routes, long term or otherwise, when they took sick leave.
Nevertheless, as evidence that she should not have been disciplined for her log sheet discrepancies, the Plaintiff points to unnamed drivers who had discrepancies on their log sheets that were resolved by simply having the drivers' supervisor talk to them. The Plaintiff argues that this evidences that she was treated more harshly than similarly situated employees. The record, however, does not support the Plaintiff's claim that these other drivers were similarly situated. Dornseif's deposition reveals that she was asked to look at standby drivers' daily logs for discrepancies. When she discovered a discrepancy in a driver's logs, the matter was turned over to the driver's supervisor to deal with. Dornseif discovered standby problems with the Plaintiff's sheets and turned the problem over to her supervisor. After she did so, however, she discovered other discrepancies unrelated to standby time. This information was not provided to the Plaintiff's supervisor, but was taken to management. The Plaintiff provides no information to dispute Dornseif's deposition testimony that the other drivers with discrepancies only had problems with standby time — or that if her discrepancies had been limited to standby time, her supervisor would have handled it.
The Plaintiff has failed to prove that her discipline was a sham. She was not meeting her employer's legitimate expectations and has not identified similarly situated employees who did not engage in protected activity and were treated more favorably. The Defendants are entitled to summary judgment on the Plaintiff's FLSA retaliation claim.
D. FWCS's Counterclaims
FWCS's Counterclaim against the Plaintiff alleges violations of Indiana state law. According to the supplemental jurisdiction statute, a district court may decline to exercise supplemental jurisdiction over these claims if it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "[T]he general rule is that, when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits. Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1251 (7th Cir. 1994).
The Court has granted the Defendant's motion for summary judgment and dismissed the § 1981 and FLSA claims over which it had original jurisdiction. Accordingly, the Court relinquishes jurisdiction of FWCS's state claims and dismisses them without prejudice.
CONCLUSION
For the foregoing reasons, the Defendants' Motion for Summary Judgment [DE 33] is GRANTED. Pursuant to Federal Rule of Civil Procedure 54(b), the Court finds that there is no just reason for delay and the Clerk shall enter JUDGMENT for Fort Wayne Community Schools, Karen Bragg-Matthews, and Frank Jackson and against Tonya Sims on her federal claims under 42 U.S.C. § 1981 and the Fair Labor Standards Act. Fort Wayne Community School's Counterclaim is DISMISSED WITHOUT PREJUDICE.
SO ORDERED.