Opinion
No. 98 C 50276.
January 3, 2001
MEMORANDUM OPINION AND ORDER
Introduction
On August 28, 1998, plaintiff Dorothy Turner filed a complaint against defendant Micro Switch, a division of Honeywell, Inc. ("Micro Switch"), pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq. Micro Switch has filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56, a request for oral argument, and a motion to strike certain affidavits Turner proffered in support of her response to Micro Switch's Rule 56 motion. Turner has orally moved to strike additional materials Micro Switch filed in response to Turner's LR56.1(b) statement of additional facts. This court has jurisdiction over Turner's claims pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3). Venus is proper as the alleged events occurred in this district and division. See 28 U.S.C. § 1391(b).
Turner is also a plaintiff in another lawsuit currently pending before this court, Thomas v. Honeywell, No. 00 C 50022. Although neither party has addressed the Thomas case, the court notes ordinary principles of issue and/or claim preclusion apply.
Facts
Turner (African-American), hired in 1971, currently works at Honeywell's Micro Switch division in Department 280, a department which places resistors or conductors on ceramic capacitors through thick film printing. (LR56.1(a) ¶ ¶ 1-2) Turner was a Group Leader for thirteen years but in 1995 all Group Leader positions were eliminated in Micro Switch's factories. (Id. ¶ 4) At that time, Turner's job title changed to FN4 Team Member. When the company abolished the Group Leader position, it simultaneously created the Technical Associate position. (Id. ¶ 5) This position required many of the skills of the Group Leader position, but required a higher level of technical expertise. Employees who were previously classified as Group Leaders were given the first opportunity to fill the Technical Associate positions. In filling the Technical Associate positions, candidates' personnel files were reviewed and the most qualified candidates were interviewed. If two or more candidates were equally well qualified and did equally well in the interview process, seniority was generally used to break the tie. (Id. ¶ 6)
On December 17, 1995, Turner, who held a Group Leader position on the second shift at the time, applied for a Technical Associate position. She and Fred Balles (Caucasian), a first shift Group Leader, were the only candidates. Balles was chosen for the position. Micro Switch states its reason for choosing Balles was because he was deemed to have stronger technical skills. (Id. ¶ 8) Turner did not complain to any member of management that she believed the decision to chose Balles was racially motivated. (Id. ¶ 9)
In her affidavit, submitted in response to Micro Switch's motion, Turner claims she complained to Human Resources about the decision. (Pl. App., Exh. A, Turner Aff., ¶ 3) However, in her deposition, Turner stated she did not complain to anyone. The affidavit imperraissibly conflicts with Turner's earlier deposition testimony so as to create only a sham issue of fact, and the court credits her deposition testimony. See Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.Sd 1162, 1170 (7th Cir. 1996).
A few months later, in early 1996, Balles was promoted to another Technician position and as a result, again the first shift Technical Associate position became available. Five candidates applied, including Turner. Cathy Wilson, with eighteen years of service (as compared to Turner's twenty-five years of service at that time) was chosen. Micro Switch states its reason for choosing Wilson was because the department supervisor thought she would be a better fit for the job because of her technical skills. (Id. ¶ 10) There is no evidence in the record as to whether Turner complained at the time to any member of management that she believed the decision was racially motivated.
In July 1997, an FN4 Team Member position on first shift was posted in Department 280. At that time, Turner held an FN4 Team Member position on the second shift in that department. Nine candidates applied for the job. John Ginger, who had more seniority than Turner, was chosen. (Id. ¶ 11) As its articulated reason for its decision, Micro Switch states the hiring supervisor thought the candidates were close in qualifications and used seniority as the tie breaker. (Id.)
According to Turner, a supervisor, Mike Entmeier, told a coworker that Turner would never work on first shift as long as he had anything to do with it. (LR56.1(b) ¶ 53) After she was turned down for the promotion, Turner took an FN3 Team Member position on first shift in another department, with no wage protection. (It is not clear from the record whether this was a lower paying position. LR56.1(a) ¶ 12) She worked in that department from March 10, 1997, through November 14, 1997.
On November 14, 1997, Tom Mabrey, Vice President of Micro Switch's electronics business, and George "Ralph" Hill, Human Resources Director, met with Turner. She was then transferred to a first shift FN4 Team Member position in Department 280, effective November 17, 1997, with back pay. The parties dispute the company's motivation for this transfer. The company states it made the decision to transfer Turner based on the conversation between Turner, Mabrey and Hill (although it never explains to the court what was said during this conversation). Turner maintains the company transferred her to the position she wanted because of the formal complaint she had filed with the United States Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP"), which touched off an investigation. (LR56.1(b) ¶ 57)
After Turner returned to Department 280, her supervisor, Charmaine Munz, was cold and unfriendly to her. (Id. ¶ 58) During monthly meetings, Munz told the employees they were overstaffed and the possibility existed that some employees would be laid off. Turner interpreted these comments as Munz intentionally causing the employees to resent Turner because she was the most senior member of the department and would cause others to be laid off. Thereafter, Turner states coworkers refused to return her greetings, refused to recertify her on jobs she had done for years, and falsely accused her of failing to follow procedures. (Id. ¶ 60) She was also falsely accused of lying on her time card.
There is evidence coworkers used racial slurs at work, including use of the word "nigger" although Turner never heard such racial slurs and specifically never heard the word "nigger" used in her presence. (LR56.1(a) ¶ ¶ 24-26; Pl. Exh. 2, Robinson Aff., ¶ ¶ 3-5, Pl. Exh. 3, Schwartz Aff., ¶ ¶ 3, 5) Turner reported use of the word "nigger" to her supervisor, Mark Gallagher. (LR56.1(b) ¶ 70) He told her there was nothing he could do about it because Turner's knowledge was based on hearsay. (Id.)
Preliminary Matters
Micro Switch has moved to strike the affidavits of Debbie Schwartz and Victoria Robinson and portions of Turner's affidavit, all of which were filed in support of Turner's response to Micro Switch's motion for summary judgment and corresponding LR56.1(a) statement of facts. Micro Switch argues Schwartz' and Robinson's affidavits should be stricken because they do not address any incidents of harassment or retaliation against Turner.
It is true incidents about which Schwartz and Robinson attest, if Turner never knew about them, are not "harassment" of Turner. Mason v. Southern Ill. Univ., F.3d 2000 WL 1779187, at *7 (7th Cir. Dec. 5, 2000). However, such evidence could be relevant to show the employer's constructive knowledge of the harassment. Id. *7 n. 8. The court finds Micro Switch's argument goes to the weight to be accorded such testimony, not its admissibility, and will be further discussed infra. Likewise, the court finds the majority of Micro Switch's arguments regarding portions of Turner's affidavit go to the weight to be accorded her statements, not the admissibility, which the court will addressinfra. Micro Switch's motion to strike is denied.
At a status hearing on December 6, 2000, Turner orally moved to strike additional materials Micro Switch submitted in support of its reply brief and responses to Turner's LR56.1(b) statement of additional facts (the "Hill Affidavit II") as being in derogation of LR56.1. The court agrees. Under LR56.1(a), the moving party may controvert additional material facts submitted by the opposing party pursuant to LR56.1(b). However, its denials must be based on materials already part of the record unless the opposing party's LR56.1(b) statement of additional facts raises unanticipated new issues entirely outside the scope of the moving party's motion for summary judgment. Such is not the case here, and Turner's oral motion to strike the Hill Affidavit II is granted.
Analysis
Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The question to be determined is whether, it the record of the summary judgment proceeding were the record at trial, a reasonable fact finder could find in favor of the non-moving party. Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993). The record is to be examined in the light most favorable to Turner, but conclusory allegations will not suffice. Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999). Intent and credibility are crucial issues in employment discrimination cases and, therefore, the summary judgment standard is applied with added rigor in such cases, but summary judgment will not be defeated just because motive or intent are involved. Id. (citations omitted).
In this case, Turner alleges three theories of discrimination: she was discriminatorily denied promotions because of her race, she was subjected to a racially hostile work environment, and she was retaliated against because she complained to the OFCCP and the Equal Employment Opportunity Commission ("EEOC") about race discrimination. The court will address each theory separately.
B. Race Discrimination
Micro Switch argues Turner is time-barred from pursuing claims based on two promotion decisions she challenges, and the court agrees. The first promotion decision at issue was in December 1995 and the second promotion decision at issue was in early 1996. (LR56.1(a) ¶ ¶ 7, 10) Turner did not file her complaint with the EEOC until March 25, 1998. (Id. ¶ 38) Under Title VII, a charging party must file a charge with the EEOC within 300 days after the allegedly unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). Each promotion was a discrete decision which Turner knew about at the time the decision was made. Eased on these facts, the continuing violation theory does not apply and her promotion claims based on the 1995 and 1996 promotions are time-barred.See Jones v. Merchants Nat'l Bank Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994) (continuing violation theory inapplicable to failure to promote claims). Likewise, any claims of discriminatory pay based. on her failure to obtain these promotions are likewise barred. See id.
Turner also contests a July 1997 promotion to the first shift FN4 position. (LR56.1(a) ¶ 11) Under Title VII, it is unlawful for an employer to decide not to promote an employee because of her race. See 42 U.S.C. § 2000e-2(a)(1). The two accepted ways of establishing that an employer has discriminated are by direct evidence (taking the form of, "I did not promote you because of your race"), or by indirect evidence. Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1044 (7th Cir. 2000). Here, Turner is apparently proceeding under the indirect method of proof, as she has proffered no direct evidence of discrimination.
Under the indirect, burden-shifting method, Turner must initially establish a prima facie case of unlawful discrimination by demonstrating: (1) she is in a protected class; (2) she was qualified for the promotion; (3) she did not receive the promotion despite her qualifications; and, (4) a person not in the protected class was promoted instead. Id. at 1044. Turner has done this. The first, second, and fourth elements are not in dispute. (Def. Memo., p. 12) As for the third element, Micro Switch argues Turner did not suffer an adverse employment action because in November of 1997, the company placed Turner in the first shift FN4 position with back pay. While such action would go to the issue of damages, it does not erase the fact that in July 1997 Turner suffered an adverse employment action.
Some of the cases list the prima facie elements somewhat differently, stating the plaintiff must establish, as the fourth element, that the employee promoted was not more qualified than the plaintiff. See, e.g., Payne v. Milwaukee County, 146 F.3d 430, 434 (7th Cir. 1998).
The burden now shifts to Micro Switch, which must articulate a legitimate, non-discriminatory reason for why Turner was not promoted.See Ghosh v. Indiana Dep't of Envtl. Mgmt., 192 F.3d 1087, 1091 (7th Cir. 1999). Micro Switch has done this; according to the hiring supervisor, she thought Turner and Ginger were close in qualifications and used seniority to break the tie.
The burden now shifts back to Turner to produce evidence from which a reasonable factfinder could conclude Micro Switch's articulated reason is pretextual, meaning it is a lie or completely lacks a factual basis.Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000); Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995). Turner has failed to produce any evidence from which a reasonable factfinder could infer pretext. Turner never even explicitly contests that she was more qualified than Ginger. (LR56.1(b) ¶ 11) Instead, Turner apparently argues that seniority was not the deciding factor in the previous two promotions that went to Balles and Wilson. Yet, for this argument to succeed Turner would have to show she was at least as qualified as Balles and Wilson because she admits seniority comes into play under Micro Switch's policy only if the applicants are equally qualified. (LR56.1(a) ¶ 6) Turner's evidence in support of this is her own self-serving statement to that effect. (LR56.1(b) ¶ ¶ 8, 10) It is well-established that a plaintiff's own self-serving statements about her qualifications is insufficient to carry the day. See, e.g., Fortier v. Ameritech Mobile Communications Inc., 161 F.3d 1106, 1114 (7th Cir. 1998) (employee's self-serving statements about her ability do not establish pretext);Rabinovitz v. Fena, 89 F.3d 482, 487 (7th Cir. 1996) (plaintiff's own opinions about his performance or qualifications do not give rise to a material factual dispute).
Turner also apparently relies on Entmeier's statement, that Turner would never work on first shift as long as he had anything to do with it, as evidence of discrimination. Turner's knowledge of this statement is based on hearsay, and the court does not consider hearsay statements that are otherwise inadmissible at trial at the summary judgment stage.Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1265 (7th Cir. 1993),cert. denied, 511 U.S. 1005 (1994). Even if the court were to consider the statement, Turner's inference that Entmeier's statement somehow refers to her race is impermissibly speculative. Thus, Turner's failure-to-promote claim fails.
The court's disposition of the promotion decisions at issue in the context of Turner's discrimination claim apply with equal force to her racial harassment claim.
Turner also claims she was discriminatorily denied pay raises. In support of this claim, Turner proffers only her own testimony that she felt she should be at the top of the pay scale because of her seniority and mastery of the job. However, she has offered no evidence of other non-protected employees in similar jobs with less seniority than her who were earning higher wages than her. This is the kind of evidence Turner should have proffered in support of her claim. See, e.g., Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003-04 (7th Cir), cert. denied, 513 11.5. 1001 (1994). In addition to failing to establish a prima facie case of wage discrimination, Turner has not produced any circumstantial evidence tending to show Micro Switch intended to suppress her wages based on her race. See Loyd v. Phillips Bros., Inc., 25 F.3d 518, 525 (7th Cir. 1994) (plaintiff with Title VII wage discrimination claim must meet demanding standard of persuading factfinder employer intended to discriminate). Thus, her Title VII wage discrimination claim fails.
C. Racial Harassment
Turner also contends she was subjected to racial harassment at work. An employer may be liable for discrimination under Title VII if an employee is subject to a hostile work environment based on her race. Mason, 2000 WL 11179187, at *5. To recover, Turner must show: (1) she was subjected to unwelcome harassment; (2) the harassment was based on her race; (3) the harassment was severe and pervasive so as to alter the conditions of her employment and create a hostile or abusive work environment; and (4) there is a basis for employer liability. Id. Regarding liability, if the supervisor created the hostile work environment and the employee suffered a tangible employment action, the employer is strictly liable. Id. If the employee does not suffer a tangible employment action, the employer may raise an affirmative defense involving its use of reasonable care in preventing and correcting the harassment and the employee's failure to take advantage of any preventive or corrective opportunities. Id. n. 4. If the coworkers created the hostile work environment, the employer is liable only when the employee shows the employer was negligent in discovering or remedying the harassment. Id. *5
Here, Turner is alleging both her supervisor, Munz, and her coworkers created a hostile work environment (Compl. p. 5, ¶ V), so the court will look at the totality of the circumstances in evaluating her claim.See Mason, 2000 WL 1779287, at *6. To prevail, Turner must show her work environment was both subjectively and objectively hostile. Turner's claim fails because from an objective viewpoint she has not, at a minimum, shown she was subjected to harassment so severe and pervasive as to alter the conditions of her employment and create a hostile or abusive work environment. See McPhaul v. Board of Comm'rs, 226 F.3d 558, 566 (7th Cir. 2000). Turner alleges when she received the promotion to the FN4 position on first shift in department 280, during monthly meetings Munz raised the possibility of layoffs. (LR56.1(b) ¶ 59) Turner interpreted Munz' statements as stirring hostility among coworkers against Turner. (Id.) Turner reasons that since she was the newest yet most senior employee in the department, coworkers blamed her for causing them to get laid off. Turner's theory is based entirely on speculation; by Turner's own account, Munz never mentioned Turner by name, never implied that Turner was the cause of any layoffs, and no layoffs ever occurred.
Even if Turner's speculative theory were accepted as true, it does not support a claim that she was subjected to a hostile work environment because of her race. Turner alleges that as a result of Munz' comments during the meeting, coworkers would not return her greetings, refused to recertify her on jobs she had done for many years, falsely accused her of failing to follow procedures, and falsely accused her of time card violations. (LR56.1(b) ¶ ¶ 60-61) By Turner's own theory, these actions were borne out of resentment to Turner because of her seniority, not her race.
Turner also contends she was subjected to a racially hostile and offensive work environment because racial slurs, including the racially offensive word, "nigger," were used in the workplace. (Pl. Resp., p. 3) However, Turner's evidence in support of this contention is lacking. First, Turner herself never heard any racial slurs, and the impact of second hand harassment is obviously not as great as the impact of harassment directed at the plaintiff. McPhaul, 226 F.3d at 567. Second, Turner has offered affidavits from two coworkers who state they heard racial slurs in the workplace, but neither coworker offers more detail than that.
Specifically, Victoria Robinson states she has heard white employees use racial slurs, including the term "nigger," and that it was common knowledge the second shift was referred to as the "nigger shift." (Pl. Exh. 2, Robinson Aff., ¶ ¶ 3-4) She does not specify how often she heard such slurs, when she heard them, who made them, or to whom they were directed. See McPhaul, 226 F.3d at 567. In fact, her affidavit was originally drafted for her to attest that she had "often" heard white employees use racial slurs, but she scratched out the word "often."
The statements of a coworker, Debbie Schwartz, are equally vague. (Pl. Exh. 3, Schwartz Aff., ¶ 3) Moreover, Schwartz does not state that she told Turner about the racial slurs she heard; in fact, she crossed out the typed paragraph in her affidavit which stated she had reported the racial slurs to Turner, (Id.) For alleged incidents of racism to be relevant to showing the severity or pervasiveness of a plaintiff's hostile work environment, the plaintiff must know of them. Mason, 2000 WL 1779187, at *7. In short, the conclusory allegations in the affidavits of Schwartz and Robinson, completely lacking specific concrete facts, do not create a factual dispute. McPhaul, 226 E.3d at 567 (coworker's use of racial epithet "nigger" on a weekly basis insufficient to establish a hostile work environment); see also Drake v. Minnesota Minin Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (district court properly struck affidavits with conclusory allegations, completely lacking specific, concrete facts).
The court also finds Turner's reliance on Rodgers v. Western-Sothern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993), is inapposite. In Rodgers, 12 F.3d at 675, the plaintiff's supervisor directed racial epithets at the plaintiff, including use of the word "nigger" in the plaintiff's presence on two occasions. The Seventh Circuit stated that perhaps no single act can more quickly create an abusive working environment than a supervisor a use of the word "nigger" in the presence of his subordinates. Id. The plaintiff also produced evidence of the profound psychological effect the supervisor's racist comments had on him. Here, Turner does not have evidence of any supervisor directing racial comments at her, and has not shown that any racial slurs interfered with her work performance or were physically threatening or humiliating to her.
Turner also points to the purported statement of the General Manager, Ron Sieck, who allegedly told Dennis Jordan, then the President of the Freeport branch of the NAACP, that using the word "nigger" was not grounds for firing an employee. (LR56.1(b) ¶ 80) Turner argues Sieck's statement is evidence of the company's lackadaisical attitude towards race discrimination and harassment. Because she has not brought forth evidence tending to show discrimination or harassment, the court finds Sieck's statement to be of little value.
D. Retaliation
Turner also alleges she was retaliated against after filing a complaint with the OFCCP in August 1997 and an EEOC charge in March 1998. (LR56.1(b) ¶ 45; Def. Exh. 4, Compl. ¶ 7(b)(i), p. 6, ¶ VII) Because Turner has not produced any direct evidence of retaliation, the court will analyze her claim under the familiar McDonnell Douglas burden-shifting method. To establish a prima facie case of retaliation, Turner must show: (1) she engaged in protected activity; (2) she suffered an adverse employment action subsequent to her participation; and (3) a causal connection exists between the adverse employment action and her participation in the protected activity. Bell v. Environmental Protection Agency, F.3d 2000 WL 1661834, slip op. at 15 (7th Cir. Nov. 6, 2000).
Many of the facts which form the basis of Turner's discrimination and harassment claims also form the basis of her retaliation claim. Specifically, Turner alleges she was denied promotions in 1997, 1998, and 1999 in retaliation for filing charges with the OFCCP and EEOC. (LR56.1(b) ¶ 46) The 1997 promotion occurred prior to the filing of any discrimination charges and, therefore, cannot form the basis of a retaliation claim.
As for 1998 and 1999, Turner claims she applied for several promotions in 1998 and 1999 but was not interviewed or selected. Although Micro Switch claims it has no records of Turner applying for any positions during these two years, for purposes of summary judgment the court will accept Turner's version of events. Even so, she has failed to offer any evidence showing a causal connection between the promotion decisions and her filings. Turner does not identify the positions fox which she applied, the hiring supervisor or whether the hiring supervisor even knew of Turner's protected activity. Turner has failed to proffer evidence in support of the third element of a prima facie case of retaliation based on any 1998 and 1999 promotion decisions, and her claim fails.
Turner claims Munz was cold and unfriendly to her and she was chastised for talking with a coworker in retaliation for filing a charge with the OFCCP and EEOC. (LR56.1(b) ¶ ¶ 58, 63) Turner states her coworkers' unfriendly behavior (Id. ¶ ¶ 60-61) was also in retaliation for filing the charges. Under Title VII, not everything that makes an employee unhappy is an actionable adverse action. Bell, 2000 WL 1661834, slip op. at 15. "For an employment action to be actionable, it must be a `significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Id. (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998)). Refusing to greet Turner or being "cold" and unfriendly to her are trivial matters that do not rise to the level of actionable retaliation. Id.; see also Drake, 134 F.3d at 885-86 (shunning by coworkers was not an adverse action).
To the extent Turner's complaint includes class action allegations, see Def. Mot., p. 3, she has failed to request class certification and has waived the issue. In any event, in light of the dismissal of her individual claims, any class certification is moot.Chambers, 17 F.3d at 1006.