Opinion
No. IP 02-1172 C B/S.
September 28, 2004
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant's Motion for Summary Judgment on Plaintiff's claims of racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended. Defendant, Indiana Family and Social Services Administration ("FSSA"), contends that Plaintiff, Jibade Anthony Baker ("Baker"), has failed to state a Title VII race discrimination claim because Plaintiff's alleged facts do not support a finding that any adverse employment action FSSA took against him was motivated by race. Further, Defendant contends that some of Mr. Baker's claims are time-barred under Title VII because they occurred more than 300 days before he filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).
As we explain below, we GRANT Defendant's Motion for Summary Judgment on all remaining counts.
Factual Background
Plaintiff Baker is a Black, male citizen of Nigeria who currently resides, and during the period of the complaint resided, in Indianapolis, Indiana. Compl. ¶¶ 5, 8-20. Indiana Family and Social Services Administration hired Baker in 1994 to work in the Office of Financial Enhancement ("OFE") and later gave him a supervisory role. Id. ¶ 10. Around 1997, OFE Director Ken Reilly ("Reilly") advised Baker and senior management that he would be leaving his position. Id. ¶ 11. Baker alleges that Reilly advised him to learn the duties of OFE director, indicating that he would become the OFE director upon Reilly's departure. Id. However, FSSA told Reilly that his suggestion to Baker was not proper, and FSSA, according to state policy, immediately posted the position of OFE director in the State's job bank. Id. ¶ 12. Baker applied for the position, and although he was one of two finalists, FSSA offered the position to Richard Hunter ("Hunter"), an African-American. Id. ¶ 13.
Ind. Code Ann. § 4-15-2-1 (2002).
FSSA terminated Hunter shortly after appointing him because he was unable to perform the duties for which he was hired. Compl. ¶ 14. Thereafter, FSSA appointed Carl Hoffman ("Hoffman"), a Caucasian, as acting OFE director, even though Baker, one of the former finalists for the position, was still employed in the division. Id. While acting as OFE director, Hoffman allowed Baker to supervise the division because, according to Plaintiff, Hoffman had no accounting, management, or supervisory experience. Id. ¶¶ 14, 15. Meanwhile, FSSA again placed the OFE director position in the State's job bank. Id. ¶ 16. Baker applied for the position again, as did Hoffman, and both were selected as finalists. Hoffman was offered the position. Id. Baker alleges that William Bogard ("Bogard"), director of Finance for FSSA, made several promises to Baker about future promotions if he would support the decision to hire Hoffman. Aff. of Jibade Anthony Baker at ¶ 10.(fn5)
We note that Hunter appears to have continued as director of OFE at least through August, 1999. See Def.'s Exhibit D (an OFE memorandum signed by Hunter on August 26, 1999)
Unfortunately, the record is devoid of evidence as to when Hoffman was appointed acting director.
Bogard denies he made any such promises, Supplemental Aff. of William Bogard at ¶ 7; however, whether such promises were actually made is not material to our decision.
Hoffman again allowed Baker to supervise the division. Compl. ¶ 17. Baker alleges that shortly before Hoffman resigned he told Baker that Jim Mooney ("Mooney"), the director of Financial Management for FSSA, asked Hoffman why he was "allowing the nigger to run the place." Id. For reasons not enumerated in the complaint, FSSA subsequently forced Hoffman to resign as OFE director. Id. ¶ 18. Baker alleges that, at this point in time, he could have become acting director. Id. He also makes a separate claim that, in December 2001, he applied for an "Accountant I" position within FSSA, but that the position was offered to an allegedly less qualified Caucasian applicant. Id. ¶ 20.
Baker filed a timely charge of race discrimination with the Equal Employment Opportunity Commission ("EEOC") and received his Notice of Right to Sue on or about April 30, 2002. Id. ¶ 3. On July 2, 2002, Baker filed a complaint in this court, claiming that: (1) FSSA intentionally eliminated OFE to prevent him from becoming its director; (2) when FSSA eliminated OFE, it failed to offer him a promotion equivalent to the eliminated position solely because of his race; (3) FSSA had, since 1994, continuously denied him promotion to director of OFE because of his race; and (4) FSSA offered the position of "Accountant I" to a less qualified Caucasian. Id. at ¶¶ 18-20.
Legal Analysis
I. Summary Judgment Standard.Summary judgment is appropriate 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). To oppose a motion for summary judgment, "there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining whether a genuine issue of material fact exists, all facts are construed in the light most favorable to the non-moving party, Baker in this case, and all reasonable inferences are to be drawn in his favor. See Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000) (citing Anderson, 477 U.S. at 255). The burden on the moving party, who in this case does not have the burden of proof at trial, is to affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under Rule 56(e), "an adverse party may not rest upon mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Thus, in order to withstand summary judgment against him, Baker must introduce specific facts which would permit a reasonable juror to find in his favor. Celotex. at 323-24; Anderson, 477 U.S. at 248.
We note that the Seventh Circuit has determined that the summary judgment standard is to be applied with special scrutiny to employment discrimination cases because intent and credibility are such critical issues. See, Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). To that end, we carefully review affidavits and depositions for circumstantial proof which, if believed, would show discrimination. However, it is equally clear that employment discrimination cases are not governed by a separate set of rules and remain amenable to disposition by summary judgment so long as there is no genuine dispute as to the material facts.Giannopoulos v. Brach Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997).
II. Baker's claims of racial discrimination.
Baker alleges that FSSA has repeatedly committed acts that discriminate against him, including the following: (1) in 1997 FSSA hired Hunter over Baker to be director of OFE despite Baker's being the more qualified candidate; (2) when Hunter resigned, FSSA appointed Carl Hoffman, a Caucasian, as acting director of OFE, despite Baker's continued employment in OFE; (3) FSSA subsequently hired Hoffman over Baker as director of OFE, despite Hoffman's not having the appropriate qualifications; (4) FSSA hired a less qualified Caucasian female, Tina Keith ("Keith"), over Baker for the position of Accountant I; (5) in 2002, after Hoffman resigned and Baker was the only remaining qualified candidate for director, FSSA eliminated OFE to avoid having to promote Baker. Baker alleges the motivation behind each of these decisions by FSSA was discrimination on the basis of his race. Defendant counters that: (A) Baker's first four alleged acts of discrimination by FSSA are time barred under Title VII; and (B) Baker has failed to present evidence that the alleged discriminatory acts by FSSA were, in fact, motivated by racial discrimination .
Defendant appears to assert that two separate sets of claims are time barred. In its Brief in Support of Summary Judgment, Defendant argues that all of Baker's claims are time barred except the application for the position of Accountant I and the decision to eliminate OFE. Id. at 14. In its Reply Brief, Defendant appears only to contend that Baker's claims of failure to promote to the director of OFE in 1997 and the application for the position of Accountant I are time-barred under Title VII. Id. at 9.
A. Time Barred Claims.
Defendant argues that all but one of Baker's claims are time-barred because they occurred more than 300 days prior to his filing a charge of discrimination with the EEOC. Defendant counters that, first, he "did not provide specific dates for each act of discrimination in his EEOC Charge," and, second, that Defendant's actions formed a single pattern of discrimination and made it impossible for Baker to determine when actionable conduct actually occurred. We find Baker's arguments unpersuasive and hold that all claims based on acts that occurred more than 300 days prior to the EEOC charge are time-barred.
The claim that FSSA eliminated OFE to avoid promoting Baker to director and then failed to offer him a comparable promotion.
Pl.'s Resp. Brief at 13.
Under Title VII a plaintiff "shall" file an employment discrimination charge with the EEOC either 180 or 300 days after an "alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). The Supreme Court has held that a discrete discriminatory act "occurred" on the day that it "happened" and that a plaintiff must file a charge within either 180 or 300 days of that date or the claim will not be actionable. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-12 (2002). However, even if time barred, a plaintiff may use acts from more than 300 days prior to filing a charge as background evidence in support of a timely claim. Id. Moreover, if the plaintiff can establish that the employer's conduct constituted a continuing violation, a court may consider acts which occurred more than 300 days prior to the EEOC charge.
We note that a claim of hostile work environment will not be time barred if at least one act falls within the filing period (see id. at 115); however, Baker does not allege a hostile work environment.
There are three theories under which a plaintiff can establish a continuing violation. The first theory applies when an employer makes employment decisions over time that make it difficult for the employee to determine the actual date of discrimination.Tinner v. United Ins. Co. of America, 308 F.3d 697, 707 (7th Cir. 2002) (citing Jones v. Merch's Nat'l Bank Trust Co. of Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994)). The second theory applies if the discriminatory acts involve an express discriminatory policy of the employer. Id. (citing Stewart v. CPC Intern., Inc., 679 F.2d 117, 121 (7th Cir. 1982)). The third theory applies when the acts of discrimination are part of an ongoing pattern and at least one of the acts occurred within the relevant limitations period. Id. However, the Seventh Circuit has held that "a plaintiff who feels discriminated against by a discrete act, but fails to timely file charges on that act, cannot later reach back to those events when the statute of limitations expires in order to form a continuing violation claim." Id. at 708. Therefore, if the plaintiff "knew, or with the exercise of reasonable diligence should have known, that each act, once completed, was discriminatory, the employee must sue upon that act within the relevant statutory period." Id. (citations omitted).
As a preliminary matter, we hold that the alleged acts of FSSA do not constitute a continuing violation. Baker alleges several distinct instances when FSSA failed to promote or appoint him. Because of the specific, discrete nature of the acts that Baker alleges, each discrete act should have "triggered [his] awareness of the need to assert or else waive his rights." Id. at 709. Therefore, Baker cannot recover on claims for alleged discrete acts of discrimination which occurred prior to May 12, 2001, the date 300 days prior to Baker filing an EEOC charge on March 8, 2002. Accordingly, we hold the following of Baker's claims of discrimination are time barred: FSSA's decision to hire Hunter as director of OFE in 1997; FSSA's decision to appoint Hoffman as acting director of OFE; FSSA decision to hire Hoffman as director of OFE; and FSSA's decision to hire Tina Keith as Accountant I in January, 2001.
Assuming arguendo that FSSA hired Hunter as a ruse to "hide the true discriminatory intent of Defendant's agent"(Def.'s Resp. Brief at 15), Defendant's alleged discriminatory motive should have been apparent to Baker when it appointed a Caucasian with "no accounting, management, or supervisory experience" as acting director of OFE or subsequently when Hoffman was hired as the director of OFE. Both of these events were discrete acts which do not qualify as a continuing violation under any of the three above-mentioned theories. See Tinner, 308 F.3d at 707-08.
We also find that Baker has failed to demonstrate any grounds to justify the application of the doctrine of equitable tolling.See Wheeldon v. Monon Corp., 946 F.2d 533, 536 (7th Cir. 1991). Baker failed to show any "excusable ignorance" of the statute of limitations period or that he was "unable to obtain vital information bearing on the existence of his claim." Id.
Baker cannot avoid the 300 day statute of limitations merely by failing to provide the dates on which the alleged acts occurred. Baker's obligation as the plaintiff is to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To create a "genuine issue" Baker must present evidence such that a reasonable jury could find in his favor. Methodist Medical Center of Illinois v. American, 38 F.3d 316, 320 (7th Cir. 1994). We find that Baker has failed to present such evidence.
There is a complete lack of evidence in the record as to when Hoffman was appointed acting director of OFE and subsequently hired as the director. It is undisputed that Baker originally applied for the position of director of OFE in 1997 but that Hunter was hired as director. It is also undisputed that Hunter resigned shortly after being hired as director of OFE and that the subsequent director, Hoffman, resigned in March, 2002. Defendant asserts that Hunter resigned and Hoffman was hired as acting director in 1999 (Def.'s Brief in Supp. of Summ. J. at 3, ¶¶ 15-16); however, the evidence Defendant cites does not support its contention. We do note there is evidence Hunter was still director of OFE in 1999. See Def. Exhibit D. On the other hand, Baker, despite apparently running the affairs of OFE during the entire tenure of Hoffman, fails to present any evidence as to when Hoffman was appointed acting director or hired as director. Accordingly, we find there is no evidence in the record to allow a reasonable jury to find that these events happened within the 300 day statute of limitations. See Methodist Medical Center of Illinois v. American, 38 F.3d 316, 320 (7th Cir. 1994).
Defendant provided evidence that Tina Keith was hired as an Accountant I on January, 15, 2001. Def.'s Reply Brief, Exhibit E. This is consistent with Bogard's statement that he interviewed applicants for this position in October, 2000 (Aff. of William Bogard at ¶ 17) and with Baker's EEOC charge that he applied for the position of Accountant I in October, 2000, although he identified Nancy Boys as the individual that was subsequently hired. The only material dispute about the date arose when Baker contradicted his own EEOC charge by stating he applied for the position in December, 2001. Aff. of Jibade Anthony Baker at ¶ 17. Baker cannot survive summary judgment merely by creating a material dispute in his own accounts of events.
Assuming arguendo that Baker and Keith applied for the Accountant I position in December, 2001, as Baker contends in his affidavit, his claim would still be barred because he did not include this allegation in his EEOC charge. As a general rule, a Title VII plaintiff may not bring claims in a lawsuit that were not included in his EEOC charge. See Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995); Cheek v. Western S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). In the Seventh Circuit, a plaintiff can include a claim in a federal district court that was not brought in the EEOC charge if the plaintiff passes a two-part test: (1) the claim in the plaintiff's complaint must be "like or reasonably related" to the allegations in the EEOC charge, and (2) the claim in the plaintiff's complaint must be reasonably expected to grow out of an EEOC investigation of the EEOC charges. Harper, 45 F.3d at 148;Cheek, 31 F.3d at 500-501. The first prong essentially means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals. See Cheek, 31 F.3d at 501. Baker's original claim that he applied for a position in 2000 that was given to Nancy Boys is not reasonably related to his subsequent claim that he applied for a position in December, 2001 that was given to Keith. These two claims involve different individuals and different years, and perhaps even different decision makers. Accordingly, we find that Baker's claim of discrimination relating to hiring Keith as Accountant I in 2001 barred because it was not included in his EEOC charge.
II. Race Discrimination
Baker alleges that FSSA repeatedly failed to promote him because of his race. There are two ways a plaintiff may prove intentional employment discrimination under Title VII by using either the (A) "direct method" or (B) "indirect method." Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 504 (7th Cir. 2004) (citation omitted). Baker concedes he cannot proceed under the direct method; however, he argues his claim can proceed under the indirect method.
Under the indirect method, a Title VII discrimination claim may proceed through the burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). There are three primary steps to the burden-shifting model. (1) Baker must first establish a prima facie case of discrimination. (2) If he does, he raises a presumption of discrimination which FSSA must rebut by producing evidence of a legitimate, nondiscriminatory explanation of its adverse employment action. (3) If FSSA meets that burden, Baker must show, through admissible evidence, that FSSA's explanation is pretextual. See Freeman v. Madison Metropolitan School Dist., 231 F.3d 374, (7th Cir. 2000); Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000).
To establish a prima facie case of race discrimination, Baker must present evidence showing that: (1) he is a member of a protected class; (2) he was performing his job satisfactorily; (3) he suffered an adverse employment action; and (4) at least one similarly-situated employee, not in his protected class, was treated more favorably. Gordon v. United Airlines, Inc., 246 F.3d 878, 885-886 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1398 (7th Cir. 1997). The plaintiff having presented a prima facie case, the burden therefore shifts to Defendant to produce evidence that Baker was not promoted for a legitimate, nondiscriminatory reason. Reeves, 530 U.S. at 142 (quotation omitted). This burden is one of production, not persuasion; and "can involve no credibility assessment." Id. (quoting St. Mary's Honor Center, 509 U.S. at 509). FSSA can meet this burden by offering admissible evidence sufficient for the trier of fact to conclude that Baker was not promoted for nondiscriminatory reasons.
The opportunity to argue pretext does not allow the plaintiff simply to second-guess the employer's decision. We do not sit as a "super personnel department" that reexamines an entity's business decisions. See Bahl v. Royal Indem. Co., 115 F.3d 1283, 1292 (7th Cir. 1997); Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1365 (7th Cir. 1988). The question we must answer at the pretext stage of analysis is not "whether the employer's reasons for a decision are `right but whether the employer's description of its reasons is honest." Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (quotingGustovich v. AT T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992)); see also Bahl, 115 F.3d at 1291 (stating "when we consider whether an employer's justification for dismissing its employee is pretextual, the inquiry is not whether the reason for the firing was a correct business judgment but whether the decision makers honestly acted on that reason").
Defendant argues that, assuming Baker can establish the four elements of the prima facie case, it has legitimate, non-discriminatory reasons for not promoting Baker. For each instance where Baker alleges discrimination, FSSA presented testimony from the individual responsible for the decision to hire or eliminate OFE that these decisions were not based on Baker's race and that their decisions were based on legitimate, non-discriminatory justifications. Baker fails to present evidence that the reasons FSSA provided justifying the decision to hire or promote other individuals were not honestly given. Baker also fails to present any evidence that OFE should not have been eliminated in March, 2002.17 At best, Plaintiff's counsel appears to be under the mistaken view that its burden may be satisfied by contesting the factual basis for the employer's belief without addressing the honesty of that belief. As noted above, the court is not a super personnel department and we will not overturn an honestly made, even though arguably mistaken, decision. See Kariotis, 131 F.3d at 677; Bahl, 115 F.3d at 1291. Accordingly, we find that Baker has failed to demonstrate pretext on the part of FSSA for any of the acts of discrimination he alleges.
In its Reply Brief, Defendant argues that Baker cannot establish his prima facie case because he cannot demonstrate that the individuals promoted in his stead were less qualified. Id. at 11-15. Since Defendant's argument that the other individuals who were promoted were more qualified than Baker is essentially the same as the legitimate, non-discriminatory reasons Defendant provided for failing to promote Baker, we will consider them together.
Assuming arguendo that Baker's claims were not time-barred under Title VII, we include the nondiscriminatory reasons presented by FSSA for all of the alleged discriminatory acts.
Mooney testifed that both Hunter and Baker were qualified for the position of director, but he felt that Hunter was more qualified. Aff. of James Mooney at ¶¶ 8-9.
Bogard testified that Hoffman had a law enforcement background which provided the necessary supervisory experience to serve as director of OFE. Bogard further testified that Hoffman's status as acting director combined with his background made him the most qualified candidate for director. Supplemental Aff. of William Bogard at ¶¶ 3-5. It is unclear from the record who appointed Hoffman acting director and for what reasons.
Bogard testified that Keith had an "excellent work record" at FSSA, had supervisory experience and "wonderful supervisory skills," "knowledge in multiple programmatic areas," and was "very reliable." Bogard further testified that the decision to promote an individual in FSSA is based on work experience, supervisory experience and skills, overall work record, and educational background. Id. at ¶¶ 11-16. Bogard testified that Baker did not have the experience in the programmatic areas needed for the Accountant I position and would not be as "good [a] fit" for the position as Keith. Aff. of Bogard at ¶¶ 23-26.
Bogard testified that he merged OFE into another office because the offices did not work well separately and there was not reason to keep them separate. Id. at ¶¶ 10-13.
Baker's affidavit is rife with allegations that he was the most qualified candidate and that the individuals chosen in his stead were utterly unqualified or incompetent. See Aff. of Jibade Anthony Baker at ¶¶ 2, 8, 10, 17. However, such evidence is insufficient to raise a question of fact about an employer's honest assessment of qualifications because it fails to "shed any light on whether the employer honestly based its employment decision on performance-related considerations, which is the focus of our inquiry in these cases." See Dey v. Colt Const. Development Co., 28 F.3d 1446, 1460 (7th Cir. 1994). Baker's allegation that Hoffman told him that Mooney asked Hoffman why he was "allowing the nigger to run the place," is inadmissible hearsay as is Baker's allegation that Hoffman told him that his superiors did not want Baker to be director. Moreover, assuming arguendo that the various statements that Rudolph Frazier alleges that FSSA management made in his presence are admissible, these statements are insufficient to demonstrate pretext.
Conclusion
For the reasons set forth above, we find that: (1) all of Plaintiff's claims except the claim of discrimination for eliminating OFE are time-barred under Title VII; and (2) Plaintiff has failed to demonstrate pretext on the part of FSSA for its decisions not to promote Baker, including the decision to eliminate OFE. Accordingly, Defendant's Motion for Summary Judgment is GRANTED.