Opinion
CAUSE NO. 01-CV-413.
June 24, 2003.
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
This matter is before the Court on the Motion for Summary Judgment filed by the Defendants on August 1, 2002. Although the pro se Plaintiff's ("Plaintiff") November 15, 2001, complaint was originally brought under 42 U.S.C. § 1983, the Court considered it to allege a violation of 42 U.S.C. § 1981 ("§ 1981"), because the Plaintiff claimed he was terminated from Thompson and that "some race bias [was] involved[.]" ( See Pl.'s Nov. 15, 2001 Compl.)
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
The Defendants (collectively, the "Defendants") are employees of Thompson Multimedia, Inc. (hereafter "Thompson"). While the Defendants will be collectively referred to as "the Defendants," they will individually be referred to as Roland G. Banks ("Banks"), Matt Kaiser ("Kaiser") and Barbara Thornell ("Thomell").
After the Defendants filed their Motion for Summary Judgment, the Plaintiff filed a motion for leave to amend his complaint. Again, the Plaintiff submitted a form complaint under 42 U.S.C. § 1983, this time seeking to add Thompson and its President as Defendants. The proposed complaint seems to contend that the company had knowledge of the discriminatory practices of defendant Banks but refused to either investigate or correct the disciplinary action that led to his termination. While the proposed Amended Complaint complains of "discrimination," there is no allegation that the discrimination was based on race, a necessary component under § 1981.
The proposed amended complaint, like the original, also alleges what appears to be state law tort claims ( e.g., defamation), and these fall under this court's supplemental jurisdiction and will be addressed, infra. See 28 U.S.C. § 1367.
The evidentiary record consists of the Plaintiff's deposition ("Pl. Dep. at ___"), as well as the Declarations of Banks, Kaiser, Thornell, and Brian Evans ("Evans"), a Human Resources Specialist for Thompson. The Plaintiff responded to the Motion for Summary Judgment with his own Declaration (Docket No. 73) filed September 30, 2002, and the Defendants have chosen not to file a reply.
The Defendants responded to the Plaintiff's Motion to Amend on August 30, 2002, by contending that the claims in the amended complaint are futile, based essentially on the same arguments they advance in the Motion for Summary Judgment, and are otherwise a tardy effort to avoid summary judgment. The Plaintiff submitted no reply. The case was then stayed for nearly eight (8) months until the Plaintiff's bankruptcy trustee abandoned any interest the bankruptcy estate had in the Plaintiff's claim. Ultimately, once the claim was abandoned, the Court lifted the stay on June 20, 2003, and restored the case to the active docket.
For the reasons hereinafter provided, the Defendants' Motion for Summary Judgment will be GRANTED, and the Plaintiff's motion for leave to amend his complaint will be DENIED.
II. FACTUAL BACKGROUND
The following recitation is drafted in a light most favorable to the Plaintiff.
By August 2001, the Plaintiff had worked for Thompson at its Marion, Indiana plant for nearly ten years, and was a member of the International Brotherhood of Electrical Workers, Local 1160 (the "Union"). ( See Pl. Dep. at 38-40, and Dep. Exs. 3 and 4.)
The Plaintiff knew of the plant's various regulations, including the following prohibitions:
6. Reporting for work while under the influence of intoxicants, their possession or use on company premises.
* * *
9. Insubordination or failure to carry out any reasonable order by a management representative, including refusal to work on jobs assigned by the supervisor.
10. Incompetence or failure to meet reasonable standards of efficiency, including gross neglect of duty.
( See Thornell Decl. Ex. B; Pl. Dep. at 38-40, and Dep. Exs. 3; 4.)
On August 23, 2001, two management employees, Banks and Kaiser, observed the Plaintiff performing his job in a unsatisfactory manner. ( See Kaiser Decl. ¶ 6; Banks Decl. ¶ 18.) Kaiser approached the Plaintiff, tapped him on the shoulder, and delivered a corrective admonishment. ( See Kaiser Decl. ¶ 8; Pl. Dep. at 97.) The Plaintiff apparently did not know Kaiser, and responded that he did not need a "coach or teacher, [or] nobody over here yelling at me, I [can] do my job." (Pl. Dep. at 97.)
Banks is a black African-American and worked as a Manufacturing Coordinator at the Thompson Plant. ( See Banks Decl. ¶¶ 2-3.) Kaiser is a white male and was a Manufacturing Shift Manager for Thompson. ( See Kaiser Decl. ¶¶ 2-3.) We continue to refer to Kaiser as he is named in the caption although his true name is apparently "Kiser."
Part of the Plaintiff's duties included washing glass television panels and then inspecting them for defects. (Kaiser Decl. ¶ 6.) However, Kaiser twice saw the Plaintiff skipping these steps. (Kaiser Decl. ¶¶ 6; 10.) Further, after inspecting the panels, the Plaintiff was supposed to send them down the assembly line by carefully placing them on a transfer table, but Kaiser and Banks observed the Plaintiff "throwing" them on the table. (Banks Decl. ¶¶ 21-23; Kaiser Decl. ¶ 14.) Both Kaiser and Banks were concerned because some of the panels had recently been returned with defects and an investigation revealed that they came from the Plaintiff's shift. (Kaiser Decl. ¶¶ 7, 14; Banks Decl. ¶¶ 20, 22.).
The Plaintiff apparently has a history of quarreling with his supervisors. According to Banks, his immediate supervisor, the Plaintiff is loud and abrasive and argues with anyone who criticizes his work. As a result, Banks thinks the Plaintiff is not easy to supervise and the two have disagreed in the past. (Banks Decl. ¶¶ 5-6.) Indeed, by the Plaintiff's own account, he has had considerable problems with four of his five supervisors. (Pl. Dep. at 69-71.).
Shortly thereafter Kaiser approached the Plaintiff accompanied by Banks, who also had observed Plaintiff's job performance failures, and they relieved him of his duties and directed him to Banks' office. ( See Pl. Dep. at 98; Kaiser Decl. ¶ 6-15; Banks Decl. ¶¶ 22; 24.)
At Banks' office, a Union steward was present to represent the Plaintiff, and the Plaintiff was informed that he was going to receive a written disciplinary action, or in plant parlance, an "ROD" (Record of Discipline) for insubordination and poor job performance (violations of Plant Regulations 9 and 10). (Banks Decl. ¶ 24; Kaiser Decl. ¶¶ 17.) During this exchange, the Plaintiff was initially loud and resistive, but once he became aware of Kaiser's position he apologized. (PI. Dep. at 113; Kaiser Decl. ¶ 17; Banks Decl. ¶ 29.)
The Plaintiff then apparently confronted Banks about the accusations, and Banks admitted to the Plaintiff that "you do your job." (PI. Dep. at 100.) At that point, Kaiser and Banks went out in the hall to talk. ( Id.) Soon thereafter, they summoned the Union steward into the hall and talked some more. When they returned, Kaiser asked the Plaintiff if he had been drinking. ( Id.) In fact, both Kaiser and Banks had independently smelled alcohol on the Plaintiff's breath. (Kaiser Decl. ¶ 20-21; Banks Decl. ¶¶ 30-31.)
The Plaintiff was offered an alcohol test and agreed to take it, but his Union representative refused, even though she knew it would result in his suspension. (Pl. Dep. at 101.) The Plaintiff was then suspended for alcohol use. ( Id.)
Apparently an alcohol test cannot be administered if the Union refuses. (Plnf. dep. at 120.).
The Plaintiff claims he did not consume any alcohol in the fourteen or fifteen hours preceding his suspension. ( Id. at 130-31.) Nevertheless, his Union steward told him that she did not want him to take the test because if he had any alcohol in his system it would register on the test. ( Id.)
The Plaintiff believes that Banks instigated his suspension because of a prior grievance the Plaintiff filed against him in July 2001. ( Id. at 132.) In fact, the Plaintiff speculates that since Banks knew the Plaintiff had an upcoming criminal trial, Banks wanted the suspension to occur before the trial so the Plaintiff would lose his job after his conviction.
While the Plaintiff clearly is unhappy with Banks, he overlooks the fact that Kaiser independently noticed that the Plaintiff smelled of alcohol, and indeed raised it first with Banks. (Kaiser Decl. ¶¶ 20-21; Banks Decl. ¶¶ 30-3 1.) This is significant because the Plaintiff does not contend that Kaiser harbored any racial animus, but rather was merely upset because of the Plaintiff's comment in the factory. (Pl. Dep. at 137.) While the Plaintiff does contend that he was somehow "setup" by Kaiser, he offers no evidence how this occurred. ( Id. at 140.) In any event, following the suspension, Kaiser had no further involvement in, or control over, the Plaintiff's employment. (Kaiser Decl. ¶ 27.)
Following the suspension, a meeting was held on August 29, 2001, at which the Plaintiff, Banks, Evans and Steve Rowland, the Chief Union Steward, were present. (Evans Decl. ¶¶ 9-10.) At that meeting Banks again related that the Plaintiff had been suspended for violating Plant Regulations 6, 9 and 10. (Evans Decl. ¶ 10.) While the Plaintiff and the Union insisted that the Plaintiff had been wrongly accused, neither mentioned race as a factor. ( Id. at ¶¶ 11;16.) Subsequently, Evans upheld the suspension. ( Id. ¶ 16.)
The Plaintiff then pursued a grievance challenging the suspension, (Pl. Dep. at 144-45), but once again did not suggest that race was a factor. Instead, the Plaintiff adamantly denied the violation of any Plant Regulations. (Thomell Decl. ¶ 20.) Ultimately, the Plaintiff's grievance was denied at the third step by Thomell because "the company had [a] reasonable suspicion that [the Plaintiff] had reported to work under the influence [of alcohol]," a violation of Plant Regulation 6. ( See Thomell Decl. ¶ 19; Thomell Decl. Exh. F.) However, while the Plaintiff's suspension was technically based on violations of Plant Regulations 6, 9 and 10, he apparently would not have been suspended if only charged with violating 9 and 10. (Thomell Decl. ¶ 35.)
The grievance process ultimately went to a fourth step, and while originally set for October 16, 2001, it was later continued to November 13, 2001. (Pl. Dep. at 166-67; Evans Decl. ¶¶ 20-22.) However, at the November 13, 2001 hearing the Plaintiff did not appear because he was in jail. The suspension grievance was thus denied, and the Union elected not to pursue it further. The Plaintiff was thus terminated effective February 4, 2002. (Evans Decl. ¶¶ 22-24.)
While the Plaintiff suspects that Thornell had some involvement in rescheduling the grievance hearing to a date when she knew he would be incarcerated, there is no evidence she was actually involved, or that she was motivated by racial animus. ( See Pl. Dep. at 167.).
Although the Plaintiff's pro se complaint makes a rather tepid allegation of racial discrimination, such as "this case has some race content to it" ( see Pl.'s Nov. 15, 2001, Compl.), the Plaintiff offers an expansive view of what he means by race. For example, the Plaintiff believes that Banks, his protagonist, is "racist against males mainly," and that in fact, "[c]olor ain't got nothing to do with you being racial," but rather means "hatred of people in general." ( See Pl. Dep. at 78-80.) In fact, the Plaintiff concedes that Banks treated a white worker, Jerry Little, the same way he treated the Plaintiff. ( Id.)
Nevertheless, in his Declaration in opposition to the Motion for Summary Judgment, the Plaintiff complains that a white worker who was suspended for masturbating in a break area in front of other workers is now back to work at Thompson. ( See Pl. Decl. at 1.) The Plaintiff also revisits another incident between himself and Banks that occurred in June 2001, which was the subject of a July 2001 grievance. While the facts of that event are not particularly critical, the Plaintiff contends that Banks threatened him at the time with insubordination and subsequently was allowed to carry out his threat.
As to the actual August 23, 2001 event, the Plaintiff contends that Kaiser is the one who should have received a ROD for the way he spoke to the Plaintiff. ( See Pl. Decl. at 2.) Moreover, the Plaintiff contends that if he had truly been under the influence of alcohol, both Kaiser and Banks would have been able to smell alcohol on him when he was on the plant floor, not just when he was in the office.
The Plaintiff also denies being rude, aggressive, insubordinate, intoxicated, or smelling of alcohol while in Bank's office. (Pl. Decl. ¶ 3.) Indeed, the Plaintiff suggests that his problems with Banks really began when Banks learned that the Plaintiff was married to a white woman who worked at the factory. ( See Pl. Dep. at 77-78.)
III. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "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). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates 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 in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v. Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.
In any event, in employment discrimination matters, the standard on summary judgment is applied with "added rigor." Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). As the Seventh Circuit reiterated in Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1169 (7th Cir. 1994), citing the standard set out in Sarsha:
Summary judgment is appropriate only when the materials before the court demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. [citations omitted].
The anachronistic term "Directed Verdict" is no longer used; rather, it has been more accurately retitled "Judgment as a Matter of Law." See Fed.R.Civ.P. 50(a). A defendant is entitled to such a judgment if "there is no legally sufficient evidentiary basis for a reasonable jury to find for" the plaintiff. Id.
However, the 7th Circuit has clarified its use of the phrase added rigor, stating that the "original use of this phrase indicates that it was merely included to stress the fact that employment discrimination cases typically involve questions of intent and credibility, issues not appropriate for this court to decide on a review of a grant of summary judgment." Alexander v. Wisconsin Dept. of Health and Family Servs. 263 F.3d 673, 681 (7th Cir. 2001).
IV. DISCUSSION
1. The Defendants' Motion for Summary Judgment
Section 1981 provides that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981 (a). Although § 1981 and Title VII differ in the types of discrimination they proscribe, the methods of proof and elements of the case are essentially identical. See Freeman v. Chicago Park Dist., 189 F.3d 613, 618 (7th Cir. 1999); Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 940 (7th Cir. 1996). As with Title VII, a plaintiff alleging race discrimination under § 1981 can prove such discrimination either by providing direct evidence of an employer's discriminatory intent or by showing disparate treatment using indirect evidence and the burden-shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See O'Neal v. City of New Albany, 293 F.3d 998, 1003 (7th Cir. 2002); Alexander v. Wisconsin Dept. of Health and Family Services, 263 F.3d 673, 682 (7th Cir. 2001).
Under the direct method of proof, the Plaintiff may introduce direct or circumstantial evidence of discrimination. See Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). Direct evidence is that which can be interpreted as an acknowledgment of the Defendants' discriminatory intent, while circumstantial evidence is evidence that can provide a basis for drawing an inference of intentional discrimination. Id.; Logan v. Kautex Textron North Am., 259 F.3d 635, 639 (7th Cir. 2001).
Under the indirect, burden-shifting approach, the Plaintiff must first establish his prima facie case of discrimination, by showing that (1) he is a member of a protected class; (2) he was meeting his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) his employer treated similarly situated individuals outside of the protected class more favorably. Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 897 (7th Cir. 2003); Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 530 (7th Cir. 2003); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7th Cir. 2002); Simmons v. Chicago Board of Education, 289 F.3d 488, 492 (7th Cir. 2002). If the Plaintiff meets this burden, the burden of production then shifts to the Defendants to articulate a legitimate nondiscriminatory reason for their action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Peters, 307 F.3d at 545; Peeley v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002). Assuming the Defendants meet this burden, the burden of proof shifts back to the Plaintiff to show that the reason set forth by the Defendants was not their true reason, but a pretext — "a dishonest explanation, a lie rather than an oddity or an error." Peters, 307 F.3d at 545 (quoting Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000)).
Here, the Plaintiff has not offered any direct or circumstantial evidence of the Defendants' discriminatory intent. Accordingly, we will analyze his claims under the indirect, burden-shifting approach.
A. The Plaintiff has Failed to Make Out His Prima Facie Case
It is undisputed that the Plaintiff is a member of a protected class and that his suspension and eventual termination constitute adverse employment actions. See Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir. 2002) ("[t]ypically, adverse employment actions are economic injuries such as dismissal, suspension, failure to promote, or diminution in pay").
It is also equally clear that the Plaintiff was not meeting his employer's legitimate expectations. Although the Plaintiff appears to argue that he generally performed his job in a satisfactory manner, the question is whether he was meeting his employer's expectations at the time he was suspended. Peters, 307 F.3d at 545. Thompson established legitimate job expectations for the Plaintiff when it required him to wash glass television panels, inspect them for defects, and then carefully place them on a transfer table. Of course, all of this is to be done while the employee is sober. Nevertheless, the evidence shows that on August 23, 2001, Kaiser twice observed the Plaintiff failing to wash or inspect the glass panels, despite a prior admonishment. Furthermore, Banks and Kaiser both saw the Plaintiff throw the panels on the transfer table rather than carefully placing them there. These job performance failures were especially egregious given that the plant employees had just been instructed to perform their jobs more carefully because some panels had recently been returned as defective and an investigation revealed they came from the Plaintiff's shift. It was while disciplining him for these job failures that the two supervisors smelled what they thought to be alcohol on the Plaintiff. Given the Plaintiff's erratic job performances, unwarranted verbal attacks on Kaiser, and what they believed to be the odor of alcohol, they were entitled to believe that the Plaintiff was under the influence. Accordingly, it is clear that the Plaintiff was not performing his duties to his employer's satisfaction at the time of his termination.
Moreover, the Plaintiff has failed to identify any similarly situated non-black employees who were treated more favorably. Indeed, the Plaintiff acknowledges that a white employee, Little, was treated similarly. Although the Plaintiff claims one unidentified white individual was allowed to return to work after being suspended for masturbating in a public break area, he bears the burden of establishing the similarity between himself and this proposed similarly situated employee. Peters, 307 F.3d at 546. To do this, the Plaintiff
must show that he is similarly situated with respect to performance, qualifications and conduct. 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.Id. (quoting Radue v. Kimberly-Clark, 219 F.3d 612, 618 (7th Cir. 2000)). Here, the Plaintiff has not demonstrated that this other employee was reinstated by either Banks or Kaiser, or that the person even engaged in similar conduct. Indeed, there is no indication that this employee was performing his job unsatisfactorily, was insubordinate, or under the influence of alcohol while on the job. Moreover, while masturbating in public is certainly reprehensible behavior, it, unlike the Plaintiff s conduct, does not threaten the efficiency of the plant or the quality of the product. Consequently, it was certainly reasonable for the Plaintiff to be treated differently than this unidentified individual.
Accordingly, the Plaintiff has failed to make out his prima facie case.
B. The Defendants have Offered Legitimate, Non-Discriminatory Reasons
Moreover, even if we assume a prima facie showing, the Plaintiff's suspension and ultimate termination are justified by legitimate, non-discriminatory reasons. See McDonnell Douglas, 411 U.S. at 802. The Defendants stated a legitimate, non-discriminatory reason for suspending and ultimately terminating the Plaintiff: reporting to work under the influence of alcohol. See Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir. 2000) ("the [employer's] belief that [the employee] was under the influence of alcohol" on the job is a legitimate non-discriminatory reason for discharge); Pierce v. Runyon, 1997 WL 269631, *6 (N.D. Ill. May 14, 1997) (reporting to work with "the smell of alcohol" is a legitimate non-discriminatory reason).
C. The Plaintiff has Failed to Show Pretext
Since the Defendants have offered legitimate, non-discriminatory reasons for the employment action, the burden of proof shifts back to the Plaintiff to show pretext. To establish pretext, the Plaintiff must show that his race was the determining factor for his suspension, or that but for his race he would not have been suspended. Jones v. Union Pacific R. Co., 302 F.3d 735, 742 (7th Cir. 2002).
Pretext is a lie or a phony reason for an employment decision. See O'Neal, 293 F.3d at 1005. In other words, "[t]o show that an employer's proffered reason is pretextual, a plaintiff must do more than demonstrate that the employer made a mistake or that the employer's reason was not good enough to support its decision. Koski v. Standex Intern. Corp., 307 F.3d 672, 677 (7th Cir. 2002) (citing Reeves, 530 U.S. at 147)). "Instead, the plaintiff must demonstrate that the employer's reason is unworthy of belief." Id., (citing O'Neal, 293 F.3d at 1005). "Specifically, the plaintiff must show that the `nondiscriminatory' reason is not the real reason at all, but is instead nothing but a cover-up for discrimination." Id.; Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996). "Among other things, the employee might present evidence that would show `that (1) the proffered reasons are factually baseless; (2) the proffered reasons were not the actual motivation for the discharge; or (3) the proffered reasons were insufficient to motivate the discharge." Id. "When the sincerity of an employer's asserted reasons for discharging an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation [and] [s]ummary judgment is therefore inappropriate." Gordon v. United Airlines, Inc., 246 F.3d 878, 893 (7th Cir. 2001) (citing Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 395 (7th Cir. 1998)). However, the employee must examine each reason given by the employer and must raise an issue of fact regarding the honesty and credibility of each of the reasons. See Wolf, 77 F.3d at 920. Nevertheless, the Court "[does] not sit as a super-personnel department that reexamines an entity's business decisions." Jones, 302 F.3d at 745. (citing Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)). Therefore, the Plaintiff cannot prevail if the Defendants "honestly believed in the nondiscriminatory reasons [they] offered, even if the reasons are foolish or trivial or even baseless." Bell v. E.P.A., 232 F.3d 546, 550 (7th Cir. 2000) (quoting Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997)).
The Plaintiff attempts to show that the Defendants' proffered reasons are factually baseless by alleging that he was not insubordinate, drunk or smelling of alcohol, and was performing his job "correctly." ( See Pl. Decl. at 3.) Although under the applicable summary judgment standards we must accept the Plaintiff's version of the facts as true, this attempt to create a factual dispute is insufficient to preclude summary judgment. The actual issue here is not whether the Defendants' version is accurate, but rather the question is did they honestly believe the Plaintiff was under the influence of alcohol. Jones, 302 F.3d at 744 ("[a]rguing about the accuracy of the employer's assessment is a distraction . . . because the question is not whether the employer's reasons for a decision are `right but whether the employer's description of its reasons is honest.'") (quoting Carotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997)). Thus, the Plaintiff must prove that the Defendants did not believe he was under the influence and merely said so in order to suspend him because they harbored racial animus. See Koski, 307 F.3d at 677.
On this record the Plaintiff falls short. The closest he gets is an insinuation that Banks and Kaiser are dishonest about smelling alcohol on his breath because they allegedly had an earlier opportunity to smell his breath in the factory but said nothing at that time. However, this speculation does not give rise to the inference that they did not honestly believe they smelled alcohol on the Plaintiff once they were all together in Banks' office. After all, the unchallenged record is that both Banks and Kaiser independently smelled alcohol on the Plaintiff's breath before privately discussing the issue with one another. Moreover, while the Plaintiff contends that Banks was racist and was the prime mover for his discharge, it was actually Kaiser who first smelled the alleged odor of alcohol and was the one who raised the point first. Consequently, this demonstrates that both came to the honest conclusion, bolstered no doubt by the Plaintiff's behavior, that he was under the influence of alcohol. The Plaintiff has done nothing to give rise to an inference that these were not honestly held beliefs.
Moreover, the Plaintiff has failed to show that the events of August 23, 2001, were not the actual motivation for his suspension. While the Plaintiff attempts to demonstrate that Banks harbored ill-will towards him due to his July 2001 grievance, the mere fact that Banks may have disliked the Plaintiff is not enough to make out a case of race discrimination given that "employers may terminate competent employees . . . because they do not like them, or . . . because the employee does not respect the employer's authority." Koski, 307 F.3d at 678. Moreover, facts, not the Plaintiff's perceptions and feelings, are required to support a race discrimination claim. See Koski, 307 F.3d at 677; Uhl v. Zalk Joseph Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997).
Finally, what is most telling is that even the Plaintiff did not appear to believe he was suspended because of his race. Indeed, the Plaintiff said nothing at the time about the charges being racially motivated, and he remained silent about it throughout each of the grievance hearings. See, e.g., Jones, 302 F.3d at 744 ("at the time the decision to discharge Jones was made, he said nothing about the charge or investigation being racially motivated.") Moreover, the Plaintiff does not claim, and has no proof, that either Kaiser or Thornell harbor any sort of racial animus. Accordingly, the Plaintiff has not carried his burden of demonstrating pretext, and the
2. The Plaintiff's Motion to Leave to Amend his Complaint
Rule 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Amendments, although liberally granted, rest within the sound discretion of the trial court. National Organization For Women, Inc. v. Scheidler, 267 F.3d 687, 707 (7th Cir. 2001). This liberal policy of granting amendments is based in part on the belief that decisions should be made whenever possible on the merits, absent countervailing considerations, such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment[.]" Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227 (1962) (emphasis added).
The Defendants contend that the Plaintiff's proposed amendment is futile. A proposed amendment is futile if it serves no legitimate purpose or is without legal merit. Ali v. University of Massachusetts Medical Center, 140 F. Supp.2d 107, 109 (Mass. 2001). The standard for determining futility has been likened to that of a motion to dismiss. Vargas-Harrison v. Racine Unified School Dist., 272 F.3d 964, 974 (7th Cir. 2001). So, the Plaintiff's motion for leave to amend should be denied only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court accepts all well pled facts in the proposed amended complaint as true and views all allegations in a light most favorable to the Plaintiff. Ameritech Corp. v. McCann, 297 F.3d 582, 585 (7th Cir. 2002).
Instantly, it would be an obvious futility to allow the Plaintiff to amend his complaint. The proposed complaint only seeks to add Thompson and its President as defendants in this case, and while it generally alleges discrimination, it never mentions race discrimination.
Nevertheless, even assuming that the Plaintiff means race discrimination, his proposed amended complaint is still futile because as discussed more fully, supra, he clearly cannot hold the company and its president liable when his identical claim against the supposed decisionmakers fails as a matter of law. Accordingly, the Plaintiff's motion for leave to amend his complaint will be denied.
CONCLUSION
For the foregoing reasons, the Defendants' motion for summary judgment on the Plaintiff's § 1981 claim is GRANTED. As noted at note 3, supra, the Plaintiff apparently is advancing a state tort claim of defamation. Because the Defendants did not seek summary judgment on any supplemental jurisdiction claims, this and any other such claims are hereby DISMISSED without prejudice to possible reassertion in a state court of competent jurisdiction. 28 U.S.C. § 1367. The Plaintiff's motion for leave to amend his complaint is DENIED. The Clerk is directed to enter judgment in favor of the Defendants and against the Plaintiff.