Opinion
No. 99 C 0050.
January 16, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Anthony J. Aguirre ("Aguirre"), a Hispanic male, filed a complaint against Defendant D.A. Stuart Company ("Stuart"), for race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended 42 U.S.C. § 2000 (e) et seq. Defendant has moved for summary judgment pursuant to FED. R. Civ. P. 56. For the reasons that follow, the Court GRANTS Defendant's Motion for Summary Judgment.
LEGAL 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); Patel v. Allstate Insurance Co., 105 F.3d 365, 367 (7th Cir. 1997). In evaluating a motion for summary judgment, the entire record is considered with all inferences and factual disputes resolved in favor of the nonmovant. Valance v. Wisel, 110 F.3d 1269, 1274 (7th Cir. 1997). The movant bears the initial burden of establishing that the record presents no genuine issue of material fact. Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). Then the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e).
The nonmovant cannot succeed in creating a factual dispute solely by resting on allegations in the pleadings but must produce evidence showing there is a disputed issue for trial. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). In order to withstand summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Only genuine disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
FACTS
Considering the undisputed facts from the parties' Local Rule 56.1(a) (b) statements of material facts (referred to herein as "Pl.'s 56.1" and "Def.'s 56.1") and drawing all reasonable inferences from the evidence in Plaintiffs favor, the facts, for purposes of resolving the summary judgment motion, are as follows.
The Court "is entitled to limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Rule 56.1] statements." Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524. 528 (7th Cir. 2000).
Plaintiff Anthony Aguirre, was hired by D.A. Stuart in January, 1993 as a service technician in D.A. Stuart's Export Division. (Def.'s 56.1 ¶ 2). A service technician is an entry-level chemist position based primarily in the laboratory. (Def.'s 56.1 ¶ 3). As a service technician, Aguirre primarily functioned as a customer service representative responsible for servicing export division customers and assisting technical managers who function as account managers soliciting sales and managing existing customer accounts in the field. (Def.'s 56.1 ¶ 5) D.A. Stuart manufactures industrial lubricants used to manufacture cans and other aluminum products. (Def.'s 56.1 ¶ 1). Its headquarters and laboratory facility are located in Warrenville, Illinois. (Def.'s 56.1 ¶ 1). Anthony J. Aguirre is a Hispanic male. (Pl.'s 56.1 ¶ 1).
Plaintiff has not complied with LR. 56.1(b), which specifies that the party opposing summary judgment will file "a concise response to the movant's statement that shall contain . . . a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Plaintiff has provided responses which fail to deny Defendant's statements and instead attempt to supply additional facts and improperly argue the inferences to be drawn from Defendant's proffered facts. Plaintiff has simply excerpted long passages from his affidavit and inserted them as responses. A Court may strike 56.1 statements in their entirety when they contain evasive answers and improper argument as such tactics defeat the purpose for which Rule 56.1 was implemented. Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 528 (7th Cir. 2000). Although, the statement has not been struck in its entirety, it is deemed as admitted all 56.1 responses which fall into this category.
Bill Scheu, Vice President in charge of Stuart's Export Division, hired Plaintiff Aguirre. (Def.'s 56.1 ¶ 39). Scheu was Aguirre's immediate supervisor when he began work at Stuart and continued in this position throughout Aguirre's tenure with the company. (Def.'s 56.1 ¶ 4). In addition to lab work, Aguirre was, on occasion, assigned to work overseas to conduct product trials at customer plants to ensure proper utilization of D.A. Stuart products. (Def.'s 56.1 ¶ 6). When Ken Smith, a technical manager, quit in 1995, Aguirre was assigned to Smith's Pacific Rim region to maintain customer relations until a new technical manager could be recruited. (Def.'s 56.1 ¶ 7). In 1996, Chris McKenzie was hired to fill the Pacific Rim position vacated by Ken Smith. (Def.'s 56.1 ¶ 8). Aguirre was returned to the home office to resume his lab functions. (Def.'s 56.1 ¶ 8).
Based on an incident and Plaintiff's performance record as discussed below, Scheu and Agase agreed to terminate Aguirre's employment on Tuesday, September 22, 1998. (Pl.'s Res. to Def.'s 56.1 ¶ 32). Aguirre never complained to anyone about discrimination while he was employed by D.A. Stuart. (Def.'s 56.1 ¶ 41).
ANALYSIS
Plaintiff may prove discrimination under Title VII through direct evidence or indirectly through the burden-shifting mechanism of McDonnell Douglas. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). In this case, Plaintiff has presented no direct evidence of discrimination. Direct evidence of intentional discrimination entails proof of acknowledgment by the Defendant of a discriminatory motive. Troupe v. May Department Store, 20 F.3d 821, [ 20 F.3d 734] 823 (7th Cir. 1994).
Under the McDonnell Douglas framework, a prima facie case of employment discrimination creates a rebuttable presumption that employer's actions, if unexplained, were the result of impermissable factors and shifts the burden of production to the employer to articulate some legitimate, nondiscriminatory reason for its actions; if the employer satisfies that burden, Plaintiff must then show that articulated reasons were pre-textual. Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1261 (7th Cir. 1994).
Prima Facie Case of Discrimination
Plaintiff has attempted to prove discrimination indirectly by arguing that he was treated differently from other non-Hispanic employees because of his race. To prove discrimination indirectly, Plaintiff must establish that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he was meeting his employer's legitimate performance expectations; and (4) his employer treated similarly situated employees who were not in the protected class more favorably. Maarouf v. Walker Manufacturing Co., 210 F.3d 750, 751 (7th Cir. 2000). Plaintiff has failed to meet his burden of establishing the third element of a prima facie case of Title VII discrimination.
Plaintiff has not met his burden of showing that a rational jury could find that he was meeting the legitimate expectations of his employer. In Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1262 (7th Cir. 1993), the Seventh Circuit noted that "the critical issue is whether [Plaintiff] was performing well at the time of . . . termination."
Plaintiff Aguirre was not performing well either before or at the time of his termination. When Aguirre was out of the office, he was often not where he was supposed to be and failed to check in with the home office for days at a time. (Def.'s 56.1 ¶ 10). Although Scheu asked Aguirre to file weekly status reports, Aguirre frequently did not turn in his weekly status reports. (Def. 56.1 ¶¶ 11, 12). From 1996 to 1998, Scheu consulted with Aguirre several times about his work performance, his negative attitude, and his failure to follow directions. (Def.'s 56.1 ¶ 20). Scheu documented Aguirre's performance problems in his 1997 performance review. (Def.'s 56.1 ¶ 23). Aguirre has admitted that he did not view his 1997 performance review as a "good review." (Def.'s 56.1 ¶ 15).
Plaintiffs responses to Defendant's 56.1 statements are contradictory and evidence the dissatisfaction which accompanied his transfer to a non-traveling position. In Plaintiff's response to Defendant's ¶ 11, he stated that the "long daily commute to the Warrenville office" was "aggravating and stressful to Aguirre's health." In the preceding paragraph, Plaintiff stated that he enjoyed his traveling assignments, which lasted weeks and involved "visiting 4-7 countries per trip and working weekends."
After his poor 1997 performance review, Aguirre wrote a letter to James Castle, President of D.A. Stuart. (Def.'s 56.1 ¶ 40). In the letter and during a 2 and one half-hour follow-up meeting with Castle, Aguirre discussed, in detail, concerns about his career at D.A. Stuart. In neither the letter nor the discussion, did Aguirre ever mention or raise concerns about discrimination. (Def.'s 56.1 ¶ 40).
In response to Aguirre's performance difficulties, Scheu and D.A. Stuart's Director of Human Resources, Mike Agase developed a disciplinary action plan to facilitate an improvement in Plaintiff's performance. (Def.'s 56.1 ¶ 25). Aguirre agreed that the idea of a disciplinary action plan was fair. (Def.'s 56.1 ¶ 27). Aguirre and Scheu agreed to and signed the action plan in early May, 1998. (Def.'s 56.1 ¶ 26).
Between September 21 and September 24, 1998, an industry conference was scheduled to be held in Chicago. (Def.'s 56.1 ¶ 30). Aguirre asked Scheu several times if he could attend. (Def.'s 56.1 ¶ 30). Scheu either avoided responding to Aguirre's repeated requests or answered by denying him permission to attend. (Def. Ex. A at 341). Although Scheu repeatedly denied his requests, Aguirre claimed that Scheu ultimately gave him verbal permission. (Def. Ex. A at 341). Aguirre has described the exchange as follows:
No. He approved verbally, "cause this was like the last day, and again he totally discouraged me from going. He did not permit me — he did not permit me to go, but at the last day I really just pushed it.
* * *
He told me verbally, he says, okay, Anthony, then why don't you go and just — survey and see who's there and let me know. Come back with a report. If you think it's worthwhile to go, then we'll take it from there. (Def. Ex 1, at 341, 342).
It is unnecessary to resolve the dispute whether final "permission" was given for purposes of this Motion for Summary Judgment. However, it is undisputed, that Scheu never approved Aguirre's attendance for the entire three days (Def.'s 56.1 ¶ 32), and that Aguirre canceled another client obligation to attend this conference. (Pl.'s Res. to Def's 56.1 ¶ 32).
On the morning of the conference, Agase and Scheu left messages on Aguirre's office extension, his home answering machine, as well as his cellular phone message box, (Pl.'s Res. to Def.'s 56.1 ¶ 32). When Aguirre called Agase back, Agase told him to return to the office immediately, though Aguirre protested. (Pl.'s Res. to Def.'s 56.1 ¶ 32). Aguirre did not immediately return to the office. (Pl.'s Res. to Def.'s 56.1 ¶ 32). Instead, Aguirre contacted Agase again, and Agase then told him not to return until the next morning. (Pl.'s Res. to Def.'s 56.1 ¶ 32).
Although the litigants disagree about whether Plaintiff had oral permission to attend the conference, even Aguirre' s description of the incident makes it appear that he was not meeting his employer's legitimate employment expectations. Not only did Plaintiff repeatedly badger his supervisor about the conference after he was told he couldn't attend, he also disobeyed Agase's order to return to the office immediately that day. Furthermore, Aguirre canceled another client obligation to attend the conference. Aguirre was not meeting Defendant's legitimate expectations.
Pretext
Even assuming Plaintiff established a prima facie case of discrimination, he could not succeed on summary judgment because of his failure to show that D.A. Stuart's legitimate articulated reason for terminating his employment (his inadequate performance) was pre-textual. To establish that D.A. Stuart's articulated reason was pre-textual, Aguirre cannot merely show that D.A. Stuart "acted incorrectly or undesirably by firing him; [he] must show that [D.A. Stuart] did not believe the reasons it gave for firing him." Wolf v. Buss (America), Inc., 77 F.3d 914, 919 (7th Cir. 1996). "Pretext . . . means a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Plaintiff has offered no evidence from which a rational jury could conclude that D.A. Stuart did not honestly believe their proffered reason for terminating Plaintiffs employment. Defendant's termination of Plaintiff represented an earnest business decision based on Plaintiff's failure to perform. Courts "do not sit as a super-personnel department that reexamines an entity's business decisions." Wolf 77 F.3d at 920.
CONCLUSION
For the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED.