Opinion
IP 00-0395-C T/G
November 27, 2001
B Timothy Clark Clark Coleman Freeman, Indianapolis, IN.
Suzannah Wilson Office of the Indiana Attorney Gen, Indianapolis, IN.
ENTRY
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Trs. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Plaintiff, Ronnie W. Adams, sued Defendant, Indiana Department of Transportation ("INDOT"), alleging claims for relief pursuant to Titles VI and VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Plaintiff's claims arise out of his employment relationship with Defendant. He alleges that he is a victim of race discrimination and retaliation. Defendant moves for summary judgment on all claims.
Plaintiff moves to partially amend and substitute his response to Defendant's Statement of Material Facts. The court has considered these motions and decides as follows.
Rule 56.1 Compliance and Evidentiary Submissions
Before the court gets down to the business of deciding INDOT's summary judgment motion, it must address various side issues. Local Rule 56.1 governs summary judgment procedure in this district. The rule sets forth specific requirements for both moving parties and non-movants. One requirement of non-movants is that they serve and file a Response to Statement of Material Facts in compliance with Local Rule 56.1(f). S.D. Ind. L.R. 56.1(b)(1). INDOT argues that Mr. Adams has not complied with this requirement and, as a result, the facts it asserts and supports with admissible evidence "are admitted to exist without controversy." See S.D. Ind. L.R. 56.1(g).
INDOT is correct that Mr. Adams' response to INDOT's statement of material facts is not in strict compliance with Local Rule 56.1: where his response denies INDOT's factual assertions, he neither makes an objection nor controverts the assertions with a material fact substantiated by specific citation to record evidence. Mr. Adams contends that INDOT's objections are to form rather than substance. He also moves to partially amend and substitute his response to INDOT's statement of material facts.
INDOT objects to the motion to partially amend, arguing that "the primary purpose of L.R. 56.1 is to emphasize form." The court disagrees. Though the rule requires that summary judgment submissions be in appropriate form, neither the rule nor the court's decision in Pike v. Caldera, 188 F.R.D. 519 (S.D.Ind. 1999), elevates form over substance. Submissions in proper form serve the rule's overarching purpose of assisting the court in determining whether there exists a genuine issue of material fact necessitating trial. See Pike, 188 F.R.D. at 521; see also Elghanmi v. Franklin College, No. IP-99-879-CH/G 2000 WL 1707934, at *3 (S.D.Ind. Oct. 2, 2000) ("The formal requirements of Local Rule 56.1 were intended by their advocates to streamline the decision-making process for summary judgments by requiring the parties to identify disputed facts precisely, and to avoid the phenomenon of having the parties' papers seem like ships passing one another unseen in the night.").
INDOT contends that granting Mr. Adams leave to amend would waste its resources as it would have to prepare another response to his factual assertions. The court agrees that allowing an amendment would be wasteful, not only of the resources of INDOT but also of Mr. Adams and the court. No benefit would be derived from an amendment and the needless expenditure of these resources as it is already apparent from Mr. Adams' Statement of Additional Material Facts, the parties' other factual assertions, and the record evidence that there exist genuine issues of material fact necessitating trial.
Moreover, the court notes that though Mr. Adams' responsive submissions were not in proper form, he has provided factual statements in Plaintiff's Statement Of Additional Material Facts, substantiated by specific citation to record evidence, which controvert assertions in INDOT's Statement of Material Facts. In other words, though Mr. Adams didn't get the form right the first time around, he did provide the substance needed for determination of INDOT's summary judgment motion. The proposed amendment of Plaintiff's Response To Defendant's Statement Of Material Facts simply matches Mr. Adams' original Additional Material Facts to the appropriate factual assertions in INDOT's Statement of Material Facts.
In arguing that the facts as claimed and supported by INDOT are admitted to exist, INDOT ignores the remainder of subsection (g) of the rule and the impracticable result in this case. Rule 56.1(g) further states that "[t]he Court will also assume for purposes of deciding the motion that any facts asserted by an opposing party are true to the extent they are supported by the depositions, discovery responses, affidavits or other admissible evidence." S.D. Ind. L.R. 56.1(g). Thus, under this provision, the court would assume that the facts asserted in Mr. Adams' Statement of Additional Material Facts and substantiated by reference to evidentiary materials are also true. As discussed below, some of Mr. Adams' assertions of material fact controvert those of INDOT. Where they do, both factual assertions cannot be taken as true.
Finally, the rule allows the court in the interests of justice to excuse the failure to comply strictly with the rule's terms. S.D. Ind. L.R. 56.1(k). Requiring strict compliance does not serve the interests of justice when doing so turns a blind eye to the existence of genuine issues of material fact. Accordingly, INDOT's objections to Plaintiff's Response to INDOT's Statement Of Material Facts is OVERRULED and Mr. Adams' motion to partially amend said response is DENIED.
INDOT contends that Mr. Adams cannot create a genuine issue of fact regarding his qualifications for the positions in question by relying on his own conclusory deposition testimony. The Seventh Circuit has said that self-serving testimony lacking factual support in the record cannot defeat a summary judgment motion, see, e.g., Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001), but that rule is applicable only where a witness's testimony is conclusory or conflicts with that witness's prior testimony, see, e.g., Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998) (holding district court did not abuse discretion in refusing to consider employee's self-serving affidavit that contradicted employee's previous deposition testimony); Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 709 (7th Cir. 1995) (holding that former employee's self-serving deposition testimony standing alone was insufficient to demonstrate a causal link between her report of purported sexual harassment and her termination where testimony was contradicted by testimony of four other employees); Darnell v. Target Stores, 16 F.3d 174, 177 (7th Cir. 1994) (party cannot create factual issue by relying on affidavits of witnesses conflicting with their own earlier deposition testimony). As another district judge in the Seventh Circuit has said: "[T]his is the only logical reading of the Seventh Circuit's rule. A literal reading would suggest that a party's sworn testimony is evidence that should be given no weight at all. This cannot be the meaning intended." Bogosian v. Bd. of Educ. of Cmty. Unit Sch. Dist. 200, 134 F. Supp.2d 952, 958 n. 3 (N.D.Ill. 2001).
INDOT also claims that Mr. Adams needs "extrinsic evidence," but the court is unsure exactly what INDOT means. "Extrinsic evidence" is a term of art used in relation to a contract. See Black's Law Dictionary 588-89 (6th ed. 1990). The court assumes INDOT intends to argue that Mr. Adams cannot rely on his own deposition testimony alone.
INDOT does not argue that Mr. Adams' deposition testimony conflicts with his prior sworn testimony. Rather, it argues only that his testimony is conclusory and self-serving. Mr. Adams is competent to testify about his own education, work experience and resulting qualifications for the positions for which he applied. His testimony in this regard may indeed be self-serving, but the testimony of INDOT's employees could also be considered self-serving. Indeed, if deposition testimony did not serve a party's interest, it is unlikely that party would submit that testimony in support of or in opposition to a summary judgment motion. But even if Mr. Adams' deposition testimony standing alone is insufficient to create a genuine issue of material fact, see Williams v. Williams Elecs., Inc., 856 F.2d 920, 923 n. 6 (7th Cir. 1988), Mr. Adams relies on more.
Of course, he cannot testify simply that he was more qualified than those individuals chosen for the positions for which he applied. He can, however, testify about the job duties and responsibilities which he has had that meet the posted requirements for the positions he sought.
INDOT makes an objection based on hearsay to the admissibility of INDOT's internal Title VI investigation, which Mr. Adams offers as evidence of pretext. INDOT argues that even if admitted, the findings of the investigation do not support Mr. Adams' claim because they do not conclude that INDOT actually discriminated against him. But there is another problem with the factual assertions surrounding the findings from the internal investigation: The Inter-Department Communication itself upon which Mr. Adams relies is conclusory and lacking of substantiating factual support. (See Def.'s Resp. Request Production No. 23 ("Based on the information examined it is my conclusion that INDOT does have a deficiency in its employment selection process. . . . The employment data clearly represented a pattern of exclusion.").) The memorandum does not identify the data or other information which was examined and would support that conclusion and, therefore, should be disregarded. In any event, even if the findings of INDOT's internal investigation are ignored, there exist genuine issues of fact for trial.
These things addressed, the court can now get down to the business of deciding whether INDOT is entitled to summary judgment.
Summary Judgment Standard
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See, e.g., King v. Nat'l Human Res. Comm., Inc., 218 F.3d 719, 723 (7th Cir. 2000); Fed.R.Civ.P. 56(c). "The burden is on the party moving for summary judgment to demonstrate the absence of a `genuine issue as to any material fact.'" Filipovic v. K R Exp. Sys., Inc., 176 F.3d 390, 395 (7th Cir. 1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When ruling on a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and resolve all doubts regarding the existence of material facts in favor of that party. See Ransom v. CSC Consulting, Inc., 217 F.3d 467, 468 (7th Cir.), cert. denied, 531 U.S. 1037 (2000); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). It is not the role of the court to weigh the evidence or judge the credibility of witnesses in deciding a summary judgment motion. See, e.g., Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000). Also, "[a]s this is an employment discrimination case, [the court] . . . take[s] care not to resolve any genuine disputes that have been properly established as to the employer's intent and credibility." Green v. Nat'l Steel Corp., 197 F.3d 894, 897 (7th Cir. 1999) (quotation omitted).
Background
Ronnie W. Adams, an African-American male, was employed with INDOT as a Highway Inventory Systems Supervisor. That position required five years of professional experience in a planning environment. One of the duties of the position was "the formulation and maintenance of plans, procedures and data filing efforts to assure the annual completion and submittal of the FHWA required Highway Performance Monitoring System[.]" INDOT has admitted that Mr. Adams satisfactorily performed all his job duties in that position.
In early 1998, Mr. Adams applied for the position of Developmental Specialist I in the Intermodal Division, Public Transit Section, which would have been a promotion for him. The most important aspect of the position was applying for, administering and tracking INDOT's state and federal public and specialized transportation grants. The posted qualifications for the position included six years of professional experience and "[e]xperience in budget preparation, contract administration, procurement regulations, public transportation, transit operations, transportation planning, public accounting, financial reporting and staff supervision." A bachelor's degree and four years of experience "in project management, grant administration, budget oversight, government accounting or transit operations" were desired.
Mr. Adams was not selected for an interview although he was considered qualified for the position by Larry Buckel, Public Transit Section Manager, the individual who selected the candidates for interviews and made the hiring decision. INDOT states that Mr. Adams was not interviewed and not selected for the position because he was not among the most qualified as he did not have experience in transit or public transportation grants.
Mr. Buckel selected Theresa McClung, a white female, for the position. According to INDOT, she was familiar with the grants involved in the position. INDOT states that Ms. McClung was selected because of her experience in its Federal Aid Section, where she worked as an Accountant III for nearly five years, and its Public Transit Section. INDOT further states her qualifications as follows:
McClung managed the Public Mass. Transportation Fund and the Section 18 grant program accounts. She was responsible for drawing the funds down from the Federal Transit Administration and had an understanding of how the grant contracts were administered to Indiana Department of Transportation subgrantees. McClung had experience in all facets of the Section 18 grant program. She had experience with grant management, staff supervision, project budgets, accounts payable and receivable, contract administration, and Federal Transit Administration regulations.
(Def's Answer to Pl.'s First Set Interrog. No. 11(c).)
Mr. Adams has come forward with evidence that suggests that Ms. McClung's experience in grant management and project budgets was limited to bookkeeping type activities and reporting to managers how much money was budgeted, spent and remaining. He also has presented evidence through Mr. Buckel's deposition testimony that Mr. Buckel believed the Accountant III position held by Ms. McClung was a clerical rather than professional position or, at best, wasn't sure whether it was a professional position. (See Buckel Dep. at 64-66.)
INDOT offers the deposition testimony of Janey Trout, its Chief of the Human Resources Division, as evidence that the Accountant III position was a professional rather than clerical position. Whether the position was, in fact, a professional position is beside the point because the question is what the decision-maker, Mr. Buckel, knew or believed.
Mr. Adams subsequently applied for the position of Development Specialist I in the Transportation Planning Division. The qualifications listed on the posted job announcement included six years of professional experience, "experience in, or specialized knowledge of traditional principles and practices, plus knowledge of current planning concepts,"and an "[a]bility to understand and accurately integrate and apply a wide variety of laws and regulations that are pertinent to the development and coordination of transportation plans and programs." The description of duties on the job announcement states in part: "Assumes major responsibility for providing technical and other assistance on complex planning problems to other local, state and federal units."
INDOT concedes that Mr. Adams was qualified for the position. Indeed, Mr. Adams received an interview for the position. However, INDOT states that he was not considered to be the most qualified because his background was "too technical and geared toward data collection," and he did not have "any planning or project selection background."
Carter Keith, Programming Manager; Clem Ligocki, Division of Planning and Programming Chief; Angela Timberlake, Division of Human Resources Employment Officer; and Christine Noggle, Division of Human Resources Manager, selected April Schwering, a white female, for the position. At the time, Ms. Schwering was employed by INDOT as a Budget Analyst II, a position in which she administered INDOT's total construction budget and managed INDOT's production scheduling system as scheduling supervisor. INDOT states that Ms. Schwering was the most qualified because "[s]he had experience in policy and budget and extensive experience in project scheduling[, and also] fully participated in the development of a new SPM/S system, which was vital to all programming."
Mr. Keith testified that Ms. Schwering would not have selected any projects as a project scheduler, but rather was responsible for updating and maintaining the accuracy of production schedules as well as making changes in the schedule as directed by project managers and coordinators. The position involved a lot of data collection but little analysis. As for budget changes in a project, a project scheduler was responsible for changing the budget amount in the schedule by entering or having someone enter the budget change on the computer schedule. Mr. Keith testified that as a project scheduler Ms. Schwering would not have made any budgeting decisions.
Discussion
Mr. Adams states claims for race discrimination and retaliation pursuant to Title VII, 42 U.S.C. § 2000e, et seq., Title VI, 42 U.S.C. § 2000d, et seq., and 42 U.S.C. § 1981.
A. Claims Pursuant To Title VII
Title VII makes it an "unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000e-2(a)(1). It is also unlawful under Title VII "for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).
A plaintiff claiming race discrimination or retaliation in violation of Title VII can prove his claims either by presenting direct evidence of discrimination or retaliation or by proceeding under the burden-shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Alexander v. Wis. Dep't. of Health Family Servs., 263 F.3d 673, 682 (7th Cir. 2001). Mr. Adams does not present any direct evidence of race discrimination or retaliation, so he must proceed under the burden-shifting method. Under this method, he must present sufficient evidence to make out a specific prima facie case for his claims. See, e.g., Alexander, 263 F.3d at 682. Once he does, INDOT bears the burden of producing a legitimate, non-discriminatory reason for its employment decision. See, e.g., id. If INDOT presents such a reason, then Mr. Adams must present evidence that the reason is merely a pretext for race discrimination or retaliation. See, e.g., id. As the Supreme Court said in Hicks and reiterated in Reeves: "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).
1. Race Discrimination
To make out a prima facie case of race discrimination, Mr. Adams must establish the following four elements: (1) that he is a member of a protected group; (2) that he applied for and was qualified for the sought after position; (3) that he was rejected from the position; and (4) that the promotion he sought was awarded to a person not in the protected group. See, e.g., Bell v. Envtl. Prot. Agency, 232 F.3d 546, 549 (7th Cir. 2000) (citing Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997)). Mr. Adams has presented sufficient evidence to make out a prima facie case of race discrimination based on INDOT's failure to promote him to the positions of Developmental Specialist I in the Intermodal Division and the Transportation Planning Division. Indeed, INDOT concedes that Mr. Adams was qualified for these positions.
There appears to be an inconsistency in the Seventh Circuit's articulation of the fourth element of a plaintiff's prima facie case of race discrimination case based on a failure-to-promote theory. In Bell and Wallace, for example, the court stated the fourth element as the employer granted the promotion to a person not in the protected class. 232 F.3d at 549; 103 F.3d at 1397. However, the Seventh Circuit also has described the fourth element as "the position was given to someone of a different race who had similar or lesser qualifications." Malacara v. City of Madison, Wis., 224 F.3d 727 (7th Cir. 2000) (citing Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995)). As the court is ruling on a summary judgment motion where close calls go to the party with the burden of proof, the court will apply the less stringent formulation as stated in Bell, Wallace and other decisions. In any event, INDOT has offered legitimate, non-discriminatory reasons for its decisions not to promote Mr. Adams to the sought-after positions, so the court may assume that Mr. Adams can make out a prima facie case of race discrimination and proceed directly to the issue of pretext. See, e.g., Malacara, 224 F.3d at 729 (stating that where defendant meets its burden of production "it is irrelevant whether a prima facie case has been made").
INDOT's stated reasons for not promoting Mr. Adams to these positions are that he was not the most qualified candidate and that Ms. McClung and Ms. Schwering were the most qualified. As INDOT has articulated legitimate, non-discriminatory reasons for not promoting Mr. Adams, the burden shifts back to Mr. Adams to show that the stated reasons are pretexts for race discrimination. Upon considering the parties' factual statements and evidentiary submissions, the court finds that Mr. Adams has come forward with evidence which would permit a reasonable inference of race discrimination.
Mr. Adams may show pretext by offering either direct evidence that INDOT was "more likely than not motivated by a discriminatory reason," or indirect evidence demonstrating that INDOT's stated reasons are not credible. Alexander, 263 F.3d at 682; Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1039 (7th Cir. 1993). Mr. Adams offers no direct evidence of pretext, so he must rely on indirect evidence. See Alexander, 263 F.3d at 682. "`Creating a triable pretext issue with indirect evidence is a difficult task which may be accomplished in one of two ways.'" Alexander, 263 F.3d at 682-83 (quoting Guerrero v. Ashcroft, 253 F.3d 309, 313 (7th Cir. 2001) (citations omitted)). Mr. Adams "must show either that [INDOT] lied about why it opted not to promote him, or that [INDOT's] reasons have no basis in fact." Guerrero, 253 F.3d at 313 (citations omitted); see also Alexander, 263 F.3d at 683. Mr. Adams has done a little of each.
INDOT contends that the "only issue is whether the defendant honestly held the views in question." (Reply Supp. Mot. Summ. J. at 3 (citing Sanchez v. Henderson, 188 F.3d 740, 747 (7th Cir. 1999), cert. denied, 528 U.S. 1173 (2000); Debs v. Northeastern Ill. Univ., 153 F.3d 390, 396 (7th Cir. 1998); O'Connor v. DePaul Univ., 123 F.3d 665, 670 (7th Cir. 1997)); see also id. at 4 (citing McCoy v. WGN Cont'l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992).) INDOT is incorrect.
Though Mr. Adams cannot prevail on his claims at trial if the trier of fact finds that INDOT honestly believed in the legitimate, non-discriminatory reasons it offers for not promoting him, see Bell, 232 F.3d at 550, at the summary judgment stage, the issue is not whether INDOT honestly believed that McClung and Schwering were the best qualified or that Adams was not the best qualified, see, e.g., id. at 551 ("According to the district court, `the issue is whether the EPA honestly believed that it promoted the most qualified persons for the positions.' The district court is not quite correct."); Perdomo v. Browner, 67 F.3d 140, 146 (7th Cir. 1995) (employer's honest belief no bar to summary judgment where plaintiff's credentials match and may have exceeded those of the successful candidates). Instead, the issue is whether Mr. Adams "has provided evidence from which a rational trier of fact could infer that [INDOT's] stated reasons for [its employment decision] were lies." Alexander, 263 F.3d at 683; Bell, 232 F.3d at 550. As the Seventh Circuit recently explained:
If the only reason an employer offers for [taking adverse action against] an employee is a lie, the inference that the real reason was a forbidden one . . . may reasonably be drawn. This is the common sense behind McDonnell Douglas. Thus, because a fact-finder may infer intentional discrimination from an employer's untruthfulness, evidence that calls truthfulness into question precludes summary judgment.
Alexander, 263 F.3d at 683 (quotations and citations omitted); see also Perdomo, 67 F.3d at 145. The cases relied upon by INDOT all predate the Seventh Circuit's more recent direction provided in Bell and Alexander.
Mr. Adams has offered evidence, which if believed by the trier of fact, supports an inference that the reasons offered by INDOT are either lies or are without a factual basis. For example, with respect to the Developmental Specialist I position in the Intermodal Division, he has offered evidence that the decision-maker, Mr. Buckel, believed that Ms. McClung's prior experience was in a clerical position rather than a professional position. This suggests that as far as the decision-maker knew, she did not have the professional experience required for the position and creates a reasonable inference that he did not believe she was qualified for the position. In addition, Mr. Adams has presented evidence that would suggest that INDOT has exaggerated Ms. McClung's experience in grant management and project budgets, cited in part as the reason why she was selected for the position.
Mr. Adams also points to evidence that Mr. Buckel previously considered him sufficiently qualified for a project manager position in the Intermodal Division to grant him an interview. The position's responsibilities involved grant-manager type duties dealing with transit systems. Mr. Adams argues that if he was qualified for an interview for the other manager position, then surely he would have been qualified at least for an interview for the similar position at issue here. At first blush, this argument may have some appeal. But the argument doesn't take Mr. Adams very far absent information about the qualifications of the candidates who applied for the other position as compared to the qualifications of the candidates who applied for the position at issue.
As for the Developmental Specialist I position in the Transportation Planning Division, INDOT states that it did not promote Mr. Adams to the position because his background was "too technical and geared toward data collection" and he did not have "any planning or project selection background." But one of the duties of the position was "major responsibility for providing technical and other assistance on complex planning problems to other local, state and federal units," thus raising an inference that the first stated reason is false. Further, Mr. Adams has presented evidence which supports a finding that he had a planning background-the position he held when he applied for the promotion required five years of professional experience in a planning environment, one of the duties of his position was the formulation and maintenance of plans, and INDOT has admitted that he satisfactorily performed the duties of his position — so a factfinder could conclude that INDOT's explanation that it did not select him because he had no planning background has no basis in fact. The evidence supports a finding that Ms. Schwering, just like Mr. Adams, lacked a project selection background. Her selection for the position despite this deficiency calls into question INDOT's sincerity in attributing Mr. Adams' non-selection to this same deficiency.
Finally, Mr. Adams has presented evidence which supports an inference that INDOT has exaggerated Ms. Schwering's experience in budget and "extensive experience" in scheduling, which casts doubt on INDOT's explanation that she was most qualified on the basis of such experience.
Mr. Adams has offered evidence that the reasons given by INDOT for not selecting him for the positions he sought are pretexts. Such evidence, together with the evidence of his prima facie case, allow his race discrimination claim to withstand INDOT's summary judgment motion.
2. Retaliation
To make out a prima facie case of retaliation, Mr. Adams must establish that: (1) he engaged in statutorily protected activity; (2) he suffered an adverse action by his employer subsequent to his participation; and (3) there exists a casual link between the protected activity and the adverse employment action. See, e.g., Smart v. Ball State Univ., 89 F.3d 437, 440 (7th Cir. 1996) (citation omitted).
On September 14, 1998, Mr. Adams clearly engaged in protected activity by filing a charge of discrimination with the Equal Employment Opportunity Commission and the Indiana Civil Rights Commission. Only events that occurred subsequently thereto can serve as support for his claim that he suffered adverse employment actions because he engaged in that protected activity. Mr. Adams claims that he suffered two adverse employment actions subsequent to engaging in protected activity: (1) an adverse performance appraisal, and (2) exclusion from interviewing job candidates for his unit.
Although "adverse employment action" has been defined broadly in this circuit, see Smart, 89 F.3d at 441, in order to be actionable an adverse employment action must be "materially adverse," Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999) (citation omitted). In other words, such a job action "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (citation omitted). Not everything that makes an employee unhappy will amount to an actionable adverse employment action. Smart, 89 F.3d at 441. "Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Id. (quotation omitted). The Seventh Circuit has explained, "a materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage of salary, a less distinguished job title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Crady, 993 F.2d at 136 (citations omitted); see also Ribando, 200 F.3d at 511.
The adverse employment appraisal of which Mr. Adams complains, does not amount to an adverse employment action. Mr. Adams asserts that the appraisal may have adversely affected possible prospects for advancement within his division and possibly throughout state government. However, he has presented no evidence that the appraisal had such an affect. In fact, Mr. Adams, subsequent to the date of the appraisal, was promoted by INDOT. The law of the Seventh Circuit is clear, "negative performance evaluations, standing alone, cannot constitute an adverse employment action[.]" Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998) (citing Smart, 89 F.3d at 442); see also Krause v. City of La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001) ("a letter of reprimand is not an adverse employment action unless the letter is accompanied by some other action, such as job loss or demotion" (emphasis in original)). It is clear that the negative appraisal of Mr. Adams' performance was unaccompanied by any adverse job action, and thus, by itself, does not amount to an actionable adverse employment action.
Mr. Adams next complains that after he engaged in protected activity, he was excluded from interviewing job candidates which had the effect of undermining his supervisory authority within his unit and caused members within his unit to perform additional work duties. As mentioned above, to constitute an actionable adverse employment action, such action must be materially adverse. Exclusion from job interviews of prospective candidates is not a materially adverse employment action and is thus not actionable. Rather, it is a minor employment action, if that, for which he has no recourse under Title VII. While Mr. Adams may have been embarrassed by the situation, embarrassment alone does not give rise to an actionable adverse employment action. See Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994) (holding that a lateral job transfer, which resulted in a title change and the plaintiff reporting to a former subordinate, may have caused a "bruised ego," but was not an actionable adverse employment action); Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883 (7th Cir. 1989) (holding that a 65-year-old school principal who was given the choice to retire or be transferred to a different school where she would have to share the position with a co-principal did not amount to an adverse employment action despite the humiliation she may have suffered). Additionally, Mr. Adams does not suggest to the court a single incident in which his authority was undermined as a result of INDOT's conduct. And, there exists no explanation of the additional duties members of his unit were supposedly forced to perform as a result of his exclusion from these interviews. Such broad sweeping statements concerning the effects of a rather minor employment action do not help to make that minor action materially adverse.
Because Mr. Adams has failed to present evidence to show that he suffered an adverse employment action, the court need not consider the third element of his prima facie case. "Having failed to prove an `adverse employment action,' [Mr. Adams] can obviously not show a causal link between h[is] protected action . . . and the nonexistent adverse employment action." Krause, 246 F.3d at 1001 n. 5. INDOT is entitled to summary judgment on Mr. Adams' retaliation claim.
B. Claims Pursuant To Title VI
Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. There is no dispute that INDOT receives federal funds and is therefore required to comply with Title VI. See Ahern v. Bd. of Educ. of the City of Chicago, 133 F.3d 975, 976 (7th Cir. 1998) (holding that the Chicago School District was required to comply with Title VI because it was a recipient of federal funds). However, Title VI provides judicial remedies for employment discrimination only when a primary objective of the federal funds is to provide employment or employment discrimination necessarily causes discrimination against the primary beneficiaries of the federal funds. See id. at 978 (quoting Trageser v. Libbie Rehab. Ctr., Inc., 590 F.2d 87, 89 (4th Cir. 1978)).
Mr. Adams does not contend that a primary objective of the federal funds received by INDOT was to provide employment. Rather, he argues that employment discrimination by INDOT necessarily causes discrimination against the citizens of Indiana who the are primary beneficiaries of the federal aid. He cites not a single case in support of this argument. And, importantly, he has not offered any evidence that any alleged discrimination against him effected the primary beneficiaries of the federal aid. Therefore, Mr. Adams has not shown that Title VI provides him any remedy for the alleged discrimination against him. His Title VI claim should be dismissed.
C. Claims Pursuant To Section 1981
Under Section 1981, "[a]ll persons within the jurisdiction of the United States shall have the same right . . . to the full and equal benefit of all laws . . . as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981(a). INDOT, as an agency of the State of Indiana, is immune from suit on a Section 1981 damages claim by virtue of the Eleventh Amendment. Rucker v. Higher Educ. AIDS Bd., 669 F.2d 1179, 1184 (7th Cir. 1982) (holding state agency is immune from damages claim under § 1981 by virtue of Eleventh Amendment); accord Johnson v. Univ. of Cincinnati, 215 F.3d 561, 571 (6th Cir.), cert. denied, 531 U.S. 1052 (2000).
Mr. Adams claims that in making its Eleventh Amendment immunity argument, INDOT relies primarily on cases involving Section 1983 claims. While INDOT does rely on such cases, the case law is clear that Eleventh Amendment immunity also bars damages claims under Section 1981 against a state or state agency. Mr. Adams next argues that the cases relied on by INDOT were decided without reference to the 1991 amendments to Section 1981. He cites no authority, however, to establish that anything in those amendments abrogates Eleventh Amendment immunity to Section 1981 damages claims. Mr. Adams further argues that the Ninth Circuit and the Northern District of Illinois have held that a plaintiff could bring a direct cause of action against state actors under Section 1981, citing Federation of African American Contractors v. City of Oakland, 96 F.3d 1201, 1214 (9th Cir. 1996), Ford v. City Sanford, 1992 WL 309603 (N.D.Ill. 1992), and Mohr v. Chicago School Reform Board, 993 F. Supp. 1155, 1157 (N.D.Ill. 1998). He asserts that the Seventh Circuit has not addressed this issue. Mr. Adams, however, confuses the issue of a state agency's Eleventh Amendment immunity with the issue of a plaintiff's right to bring a cause of action directly under Section 1981 rather than through Section 1983. This latter issue was addressed in the cases he cites. Mr. Adams also confuses the concept of "state actor" with "state" and "state agency." The defendants in the cases relied on by him were neither states nor state agencies and none of those cases hold that a plaintiff may sue a state or state agency for damages under Section 1981.
The court accordingly decides that Mr. Adams' claims under Section 1981 should be dismissed.
Conclusion
Defendant's objections to Plaintiff's Response to Defendant's Statement of Material Facts is OVERRULED and Plaintiff's Motion To Partially Amend And Substitute Plaintiff's Response To Defendant's Statement Of Material Facts is DENIED.
Defendant's Motion For Summary Judgment is GRANTED IN PART and DENIED IN PART as set forth in this entry.
A telephonic status conference will be set under separate order for purposes of selecting a date for trial of Mr. Adams' Title VII race discrimination claim.
ALL OF WHICH IS ORDERED this 27th day of November 2001.