Opinion
1:03-cv-010-LJM-WTL.
June 22, 2004
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant's, Federal Express Corporation ("FedEx" or "Defendant"), Motion for Summary Judgment on the claims of Plaintiff, Maman D. Bio ("Bio" or "Plaintiff"). In his complaint, Bio, a former employee of FedEx, alleges that FedEx disciplined him and discharged him on the basis of his race. Bio seeks to recover for the alleged racial discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. In the instant motion, FedEx seeks summary judgment on all of Bio's claims. For the reasons set forth below, the Court GRANTS Defendant's Motion for Summary Judgment.
I. BACKGROUND A. BIO'S EMPLOYMENT AT FEDEX
Bio began working for FedEx in 1994 as a Handler at FedEx's Indianapolis Hub. Def.'s Stmt. of Facts ¶ 1. In 1995, Bio transferred to the Engineering Department at the Indianapolis Hub, where he worked as a Hub Planning Assistant on the Night Shift. Id. ¶ 2. In or around November 1996, Bio was promoted to the position of Engineering Specialist. Id. ¶ 3. In his capacity as an Engineering Specialist, Bio was responsible for preparing and monitoring long-range operational plans, planning for and assisting with implementation of required changes in operations, and providing engineering support to the operating and corporate departments of the Indianapolis Hub. Id. ¶ 4.
B. FEDEX EMPLOYMENT POLICIES
FedEx has a Performance Improvement Policy, which states that FedEx employees can be terminated if they receive three deficiency or disciplinary notifications within a twelve-month period. Id. ¶ 8. FedEx also has an Acceptable Conduct Policy, which states that employees can be disciplined and/or terminated for misconduct, including insubordination, refusal to follow instructions, or not performing work in a timely manner without valid reason. Id. ¶ 9. Bio received copies of both policies. Id.
FedEx's Performance Improvement manual lists several tools that FedEx supervisors may utilize to address performance problems. Def.'s Ex. 31. The list includes Verbal Counseling, Written Counseling, and Performance Reminders. Id. The manual defines a Performance Reminder as "a written disciplinary notification that is normally warranted when: there is a severe performance problem or the same or similar performance problem has occurred on at least 2 or more occasions within the last 12 months." Id.
C. BIO'S PERFORMANCE AT FEDEX
On numerous occasions throughout his employment as an Engineering Specialist, Bio's managers counseled him verbally or by e-mail regarding difficulties Bio was having in performing his duties as an Engineering Specialist, such as failure to complete assignments on a timely basis and inaccuracies or deficiencies in his work product. Id. ¶ 10. Several managers in the operational department at FedEx's Indianapolis Hub complained about Bio's lack of communication, his failure to provide information or work product on a timely basis, and inaccuracies and deficiencies contained in Bio's work product. Id. ¶ 11.
In September 1999, Manager Brian Read ("Read") gave Bio oral and Written Counseling for several performance deficiencies, including erroneous STAR volume entries, SETUP calculation errors, failure to abide by engineering timelines, and failure to communicate with internal customers. Id. ¶ 12. Read warned Bio that continued performance deficiencies might lead to further action under FedEx's Performance Improvement Policy. Id. ¶ 13.
On November 11, 1999, Read issued another Written Counseling to Bio for failing to complete Night Sort volume projections by the stated deadline and failing to timely communicate that he was unable to complete the assignment by the deadline. Id. ¶ 14. Read's November 1999 Written Counseling directed Bio to meet all future timelines and project deadlines and, if he was unable to meet a deadline, to provide verbal and written communication to a manager as soon as he became aware that the deadline could not be met. Id. ¶ 15.
On May 26, 2000, Read gave Bio an overall rating of 2.9 out of a possible 4.0 on his annual performance evaluation. Id. ¶ 16.
In both December 2000 and January 2001, Read and Joseph Stephens ("Stephens"), the Managing Director of the Engineering Department at the Indianapolis Hub, informally counseled regarding deficiencies associated with plans Bio had prepared and published.
On January 12, 2001, Read issued a Written Counseling to Bio for deficiencies contained in a project memo and for untimely completion of the memo. Id. ¶ 22. According to Bio, both Read and Stephens indicated that Stephens had directed Read to issue the Written Counseling to Bio. Id. ¶ 23.
On March 16, 2001, Read issued Bio a Performance Reminder and Action Plan for quality of work problems related to an operating plan that Bio had published that failed to include all the outbound destination ramps serviced for that particular operation. Id. ¶ 25. Bio contested the March 2001 Performance Reminder by filing a complaint under FedEx's Guaranteed Fair Treatment Process, but later withdrew the complaint after he discussed the Performance Reminder with Stephens. Id. ¶ 27.
On May 14, 2001, Stephens gave Bio an overall rating of 2.1 out of a possible 4.0 on his annual performance evaluation. Id. ¶ 28. Stephens, who was Managing Director over the Engineering Department at the Indianapolis Hub, performed the annual evaluation of Bio's performance in May 2001 because Read had left the department and Bio did not have a direct supervisor at the time. Id. ¶ 29. Stephens' evaluation of Bio's performance in May 2001 stated that Bio had problems with prioritizing and completing tasks and needed to recognize the need for action, assume responsibility, and follow through on assignments without prompting. Id. ¶ 31.
D. AUGUST 28, 2001, NIGHT SHIFT
While the above-listed facts are largely without dispute, Bio challenges some aspects of FedEx's version of the events that took place during the August 28, 2001, Night Shift. According to FedEx, during the August 28, 2001, night shift, Bio was asked to revise the first week of volume projections reflected on the Daily Volume Page of the September 2001 Monthly Operating Plan for the Night Sort of the Indianapolis Hub (the "September MOP"), which had been prepared and published by the Engineering Department several weeks earlier. Id. ¶ 33. FedEx also alleges that Bio was specifically asked to revise the volume projections for the first week of the September MOP, make sure the revisions were put on the Local Area Network ("LAN"), and report to the Operations Control Room that the revisions had been made and posted to the LAN before leaving work that evening. Id. ¶ 34.
As noted by Defendant, some of these fact disputes arise from Bio's post-summary judgment affidavit. The Seventh Circuit disfavors the submission of affidavits from plaintiffs that contradict their own earlier deposition testimony, Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995), and the Court will ignore statements from Bio's affidavit that contradict his earlier deposition testimony.
Bio, on the other hand, testified that another FedEx employee, Ken Scoda ("Scoda"), was responsible for revising the volume projections for the September MOP. Pl.'s Stmt. of Facts ¶¶ 4-5. According to Bio, he had been responsible for the volume forecast reports until 2001, when Scoda, along with other engineers, took over the task. Id. However, Bio testified that he (Bio) completed the September MOP during the August 28, 2001, Night Shift, and that "Ken Scoda was just basically with me." Bio. Depo. at 154.
At that time, Bio's immediate manager was Robin Damm ("Damm"). Def.'s Stmt. of Facts ¶ 32. Damm was the Manager of the Planning and Administration group within the Engineering Department, and she had direct supervisory authority over Bio from June 2001 until his employment with FedEx was terminated in September 2001. Damm Dec. ¶¶ 4-5. According to Damm, Bio was responsible for completing the September MOP during the August 28, 2001, Night Shift, and Bio left work without completing the assignment. Id. ¶¶ 40-45. Damm testified that Bio was supposed to complete the volume forecast report, send an e-mail to the Control Room to report that it was finished, and post the update on the LAN before he left work after the August 28, 2001, Night Shift. Id. ¶ 34. Damm stated that she went to Bio's cubicle at approximately 4:30 a.m., and saw that he had cleaned up his area and left work for the evening. Def.'s Stmt. of Facts ¶ 40. Damm and Scoda then pulled up several computer files to determine if Bio had completed his project and posted it to the LAN, and they determined that no changes had been made to the volume projections for the September LAN. Id. ¶¶ 44-45.
Bio tells a different story. According to Bio, he and Scoda finished updating the volume projections that night, and dropped off a copy for Damm to review at about 3:30 a.m. Bio Depo. at 156-161. Bio testified that he subsequently called the Control Room to tell them that the assignment was completed. Id.
The September MOP was an important project, and Damm chose Bio for the project because she wanted the "most qualified engineer" to handle the assignment and because Bio "was an expert on volumes, he was very familiar with the volumes, he was very good with programs and being able to put together Excel spreadsheets to analyze things, he was very knowledgeable on this subject, he was very good at it." Pl.'s Stmt. of Facts at 46.
E. AUGUST 29, 2001, NIGHT SHIFT
The next evening, Damm told Bio that the volume projections that she and Scoda had reviewed the night before had appeared to be incomplete and that they had been unable to find the completed volume updates on the LAN that Damm and Bio had discussed the previous evening. Id. ¶ 49. Damm asked Bio if he had sent an e-mail to the Control Room before the end of the August 28, 2001, Night Shift to report that the volume updates had been made and posted to the LAN, and Bio said that he had not sent the email. Id. ¶ 50. When Damm asked Bio why he failed to complete the assignment she had given him, Bio said that he had completed the assignment before leaving work and that he had the documentation to prove it. Id. ¶ 52. According to Bio, he told Damm that he had given her a hard copy of the update the night before, and then Damm left Bio's cubicle without giving him to chance to explain that he had left a phone message and hard copy with the Control Room. Pl.'s Stmt. of Facts ¶ 79. According to Damm, she asked Bio for the proof that he finished it, but Bio never presented documentation to Damm or anyone else at FedEx that showed that he had completed the updates, verified their posting to the LAN, and reported the updates to the Control Room during the August 28, 2001, Night Shift. Def.'s Stmt. of Facts ¶ 53.
Damm considered giving Bio a Written Counseling for his failure to complete the volume projections during the August 28, 2001, Night Shift. Id. ¶ 54. Damm then reviewed Bio's employment file, discovered that he had been received counseling memos and discipline from previous managers for similar failures, and concluded that the August 28, 2001, incident was part of a pattern of problems with timely completion of assignments that warranted stronger action under FedEx's Performance Improvement Policy. Id. ¶ 55. Damm notified her direct supervisor, Stephens, on August 29, 2001, that she had decided to discipline Bio under FedEx's Performance Improvement Policy, and she explained the circumstances and rationale that led to her decision. Id. ¶ 56. After conferring with a FedEx Human Resources representative to confirm that her actions conformed with FedEx policy and procedure, Damm issued Bio a Performance Reminder on August 29, 2001, for failing to complete a requested assignment. Id. ¶ 58.
Because Bio appeared to have continuing deficiencies and had received two Performance Reminders within the past year, Damm granted Bio a "Decision Day" in accordance with FedEx's Performance Improvement Policy, and required him to prepare a Personal Performance Agreement demonstrating his intent to improve his performance as an Engineering Specialist. Id. ¶ 59. During the nearly two-hour meeting that Damm held with Bio on August 29, 2001, about the Performance Reminder he received, Damm discussed in detail with Bio what he could write in his Personal Performance Agreement, and urged him to "just make a proposal," even if he disagreed with her assessment of his performance. Id. ¶ 61. Bio told Damm that the Performance Reminder was false because he had finished the assignment during his previous shift. Pl.'s Stmt. of Facts ¶ 84. Damm warned Bio that FedEx considered failure to develop and produce a Personal Performance Agreement to be a violation of the Acceptable Conduct Policy and a voluntary resignation of employment. Def.'s Stmt. of Facts ¶ 62.
F. TERMINATION OF BIO'S EMPLOYMENT AT FEDEX
When Bio returned to work on August 31, 2001, he told Damm that he did not prepare a Personal Performance Agreement because he did not agree with the Performance Reminder Damm had given him. Id. ¶ 63. Later that day, Damm issued a Warning Letter to Bio for failing to produce a required Personal Performance Agreement in violation of FedEx's Acceptable Conduct Policy. Id. ¶ 64. Because this was Bio's third disciplinary letter in a span of less than twelve months, Damm terminated Bio's employment on September 5, 2001. Id. ¶ 65.
On September 9, 2001, Bio filed an internal complaint pursuant to FedEx's Guaranteed Fair Treatment Process ("GFTP"). Def.'s Ex. 32. In his GFTP complaint, Bio stated that he disagreed with his Performance Reminder, and generally alleged that he had been treated unfairly by Joe Stephens, the Managing Director of the Engineering Department. Id. Bio did not mention racial discrimination. Id. Bio first complained of racial discrimination in November 2001. Bio Dep. at 205-06.
On June 3, 2002, Bio filed a Charge of Discrimination with the Indiana Civil Rights Commission and the United States Equal Opportunity Commission, alleging that he had been passed over for promotions, received poor performance reviews, disciplined for poor performance by Robin Damm in August 2001, and terminated because of his race. Id. ¶ 71.
G. EVIDENCE REGARDING "SIMILARLY SITUATED" EMPLOYEES
Ken Scoda, who is white, began working as an Indianapolis Hub Engineering Specialist in December 2000, about nine months before Bio was fired. Scoda Aff. ¶ 3. Scoda had numerous job performance problems as an Engineering Specialist. Pl.'s Stmt. of Facts ¶ 13. On April 5, 2001, Stephens noted in an e-mail that the "volume plan in STAR (for April) . . . IT IS A MESS . . ." (emphasis in original). Id. Scoda was responsible for the volume plan in STAR for April. Id. ¶ 14. Scoda also was responsible for problems with the STAR volumes in May, June, and July, and he was not formally disciplined for them. Id. ¶¶ 14-33. On June 22, 2001, Stephens sent Damm an e-mail stating, "Why are we all of sudden having so many problems with STAR plans? You need to start a documentation trail . . . the HONEYMOON IS OVER [emphasis in original] for Mr. Scoda. We can not [sic] tolerate communications and updates to STAR plans 3 weeks into a given operating month. He needs to understand this and very clearly." Id. ¶ 22. Damm interpreted this request to mean that the training period for Scoda was over and that Scoda had had enough training to handle his job responsibilities. Id. ¶ 24. Bio testified that Scoda "needed help" with the volume projections, and that he had to show Scoda the steps because Scoda "didn't know what he was doing." Bio Depo. at 243.
FedEx also filed a Motion to Strike Plaintiff's Surreply as untimely and beyond the proper scope of Local Rule 56.1(d). Although the surreply was timely filed, the Court agrees that portions of the surreply are beyond the proper scope of a surreply. For example, FedEx's citation to Ken Scoda's employment history and performance in its reply was not new evidence that warranted a response in a surreply because it was already a part of the record on summary judgment. Accordingly, the Court will not consider those portions of Bio's surreply. On the other hand, Bio was well within his rights under Local Rule 56.1(d) to respond to the evidentiary objections that FedEx made in its reply. The Motion to Strike is GRANTED in part and DENIED in part.
Scoda was disciplined by Damm. Damm Dec. ¶ 35. Scoda received his first Performance Reminder for inaccurate work on September 11, 2001. Id. During his annual performance review in November 2001, Damm gave Scoda a 1.8 out of a possible 4.0, which resulted in another Performance Reminder for Scoda for receiving an unacceptable performance review score. Id. As she did with Bio, Damm gave Scoda a "Decision Day" with his second Performance Reminder, and required him to produce a Personal Performance Agreement. Id. Scoda produced a performance agreement that demonstrated his intent to take specific actions to improve his performance. Id. However, Scoda submitted inaccurate work three months later, and Damm issued him a third and final Performance Reminder. Id. Damm then terminated Scoda's employment pursuant to FedEx's policy for receiving three disciplinary letters within twelve months. Id. Scoda's employment as an Engineering Specialist lasted for only thirteen months. Id.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith 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.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, the Court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to [her] case, one on which [she] would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
III. DISCUSSION
FedEx seeks summary judgment on all of Bio's claims. First, FedEx argues that Bio's claim of discrimination with regard to the performance evaluation he received in 2000 is barred as untimely. Second, FedEx asserts that even if the performance evaluation received in 2000 is not time-barred, any claim based on it or the performance evaluation received in 2001 fails because the reviews did not lead to any tangible job consequence. Finally, FedEx contends that Bio cannot establish a prima facie case or pretext to support his discriminatory discipline and discharge theory. In his opposition memo, Bio fails to respond to FedEx's arguments regarding the performance evaluations. Instead, he argues that he has raised a jury issue on the discriminatory discharge and discipline theory. The Court will address each argument in turn.
A. BIO'S ANNUAL PERFORMANCE EVALUATIONS
In his complaint, Bio alleges that FedEx discriminated against him on the basis of his race by giving him negative annual performance evaluations in 2000 and 2001. FedEx asserts that any claim based on the performance evaluation that Bio received in 2000 is untimely. FedEx further asserts that any claim based on the 2000 performance evaluation or the 2001 performance evaluation fails because the evaluations are not adverse employments actions for purposes of Title VII. Apparently conceding the point, Bio does not mention the performance evaluations in his opposition memo.
Because "[t]he same standards governing liability under Title VII apply to Section 1981," Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998), the Court will analyze the Section 1981 claim and the Title VII claim under the familiar McDonnell Douglas burden-shifting framework.
To survive summary judgment in a Title VII case, a plaintiff must establish that he suffered an adverse employment action. Adverse employment action has been defined broadly in the Seventh Circuit. See Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). "[A]dverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well." Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987). However, "not everything that makes an employee unhappy is an actionable adverse action. 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.'" Smart, 89 F.3d at 441 (citations omitted). The action must be materially adverse — "meaning more than a mere inconvenience or an alteration of job responsibilities." Cullom v. Brown, 209 F.3d 1035, 1041 (7th Cir. 2000) (internal quotations and citations omitted). For an employment decision to be actionable, it must be a "significant change in employment status, such as a hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). See also Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999).
With regard to negative job evaluations, Seventh Circuit precedent is clear — a negative job evaluation is not an adverse employment action unless the evaluation is connected to some tangible job consequence. See Hilt-Dyson v. City of Chicago, 282 F.456, 466 (7th Cir. 2002); Grube v. Lau Indus., Inc., 257 F.3d 723, 729 (7th Cir. 2001); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Despite FedEx's argument that the job evaluations were not adverse employment actions for purposes of Title VII, Bio has not made any effort to link the evaluations with any tangible job consequence. In fact, Bio does not even mention the job evaluations in the "Arguments" section of his opposition memo. Because it is not the Court's job to scour the record in search of evidence to defeat a motion for summary judgment, see Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996), the Court concludes that neither the 2000 job evaluation nor the 2001 job evaluation was an adverse employment action under Title VII. Bio's failure to satisfy this essential element of his prima facie case proves fatal to his claim. The Court GRANTS Defendant's Motion for Summary Judgment to the extent it seeks judgment on the claims based on the job evaluations.
B. DISCRIMINATORY DISCIPLINE AND DISCHARGE
FedEx also seeks summary judgment on the discriminatory discipline and discharge claim. FedEx contends that (1) Bio does not have proof of similarly situated employees treated differently; (2) Bio cannot establish that the Performance Reminders or Warning Letter were adverse employment actions; (3) Bio was not meeting legitimate employment expectations when he was discharged; and (4) Bio was disciplined because he failed to update the September MOP volume projections and post them on the LAN during the August 28, 2001, Night Shift, and Bio was fired because he received three disciplinary letters within a twelve-month period. In response, Bio asserts that his former co-worker Ken Scoda is a similarly situated white employee who was treated better than he, and Bio argues that he has met all of the other elements of his prima case and raised a jury issue on pretext.
Both parties agree that Bio does not have any direct evidence of racial discrimination. As a consequence, Bio must proceed under the McDonnell Douglas burden-shifting framework. In order to prove his prima facie case of racial discrimination, Bio must establish that:(1) he is a member of a protected class; (2) he was performing as an Engineering Specialist up to FedEx's legitimate expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated employees outside of the protected class. See Hildebrandt v. Ill. Dept. of Natural Res., 347 F.3d 1014, 1030 (7th Cir. 2003) (citation omitted). If Bio establishes his prima facie case, then the burden of production shifts to FedEx to produce a legitimate, non-discriminatory explanation for the discipline and discharge. See Jones v. Union Pacific R. Co., 302 F.3d 735, 742 (7th Cir. 2002). If FedEx articulates such a reason, then Bio must prove pretext. See id. In the instant case, there is no question that the first prong is met because Bio is African-American. Although FedEx questions whether the second and third prongs have been met, the Court will proceed to the "similarly situated" prong because it is dispositive.
EVIDENCE OF "SIMILARLY SITUATED" EMPLOYEES
For Bio to meet his burden of identifying a similarly situated employee, he "must show that there is someone who is directly comparable to [him] in all material respects." Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (citations omitted). "In determining whether two employees are similarly situated a court must look at all relevant factors, the number of which depends on the case." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). "A 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. at 617-18 (citations omitted).
Bio identifies Scoda as a comparable employee outside of his protected class who received better treatment from FedEx than he did. Bio cites Scoda's job performance problems as an Engineering Specialist between April and July 2001, and asserts that FedEx's failure to discipline Scoda for those problems evidences disparate treatment of a similarly-situated white employee. The Court disagrees with Bio's position.
First, as FedEx argues, Scoda and Bio were not directly comparable in all material respects. See Patterson, 281 F.3d at 680 (explaining the other employee must be comparable in all material respects). Although Damm supervised both Scoda and Bio, which is a relevant consideration, there was a substantial experience gap between the two men. See Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 979 (7th Cir. 2004) (identifying work experience as a relevant consideration when analyzing whether employees are directly comparable). Bio was promoted to the position of Engineering Specialist in November 1996, and remained in that position for almost five years until he was terminated in September 2001. According to Damm, who became Bio's immediate supervisor in June 2001, Bio had become "an expert on volumes, he was very familiar with the volumes, he was very good with programs and being able to put together Excel spreadsheets to analyze things, he was very knowledgeable on this subject, he was very good at it." Pl.'s Stmt. of Facts at 46. Scoda, on the other hand, was a novice when it came to volume projections. As noted by FedEx, Scoda had only been working as an Engineering Specialist for nine months when Bio was fired. Bio himself testified that Scoda "needed help" with the volume projections, and that he had to show Scoda the steps because Scoda "didn't know what he was doing." Bio Depo. at 243. Scoda's relative lack of experience as an Engineering Specialist accounts for why Scoda was not formally disciplined for his mistakes as an Engineering Specialist between May and August 2001, when he had been working as an Engineering Specialist for less than a year.
Second, even if Scoda were directly comparable to Bio in all material respects, FedEx's treatment of Scoda does not raise an inference of discrimination by FedEx against Bio because Scoda was also fired by FedEx for receiving three disciplinary letters in a twelve-month period. In other words, Bio has not shown that he was treated less favorably than Scoda. Scoda received his first Performance Reminder for inaccurate work on September 11, 2001. During his annual performance review in November 2001, Damm gave Scoda a 1.8 out of a possible 4.0, which resulted in another Performance Reminder for Scoda for receiving an unacceptable performance review score. Shortly thereafter, Scoda submitted inaccurate work, and Damm issued him a third and final Performance Reminder. Damm then terminated Scoda's employment pursuant to FedEx's policy for receiving three disciplinary letters within twelve months. Scoda's employment as an Engineering Specialist lasted for only thirteen months. Rather than supporting Bio's case, FedEx's treatment of Scoda actually tends to negate Bio's discrimination claim.
Bio's complaint that FedEx did not formally discipline Scoda during his first nine months despite serious performance problems overlooks the fact that Bio himself was not formally disciplined by FedEx during his first few years as an Engineering Specialist despite similar performance issues. As documented in the record, FedEx counseled Bio verbally and by e-mail numerous times before it formally disciplined him with Performance Reminders.
Bio attempts to minimize the fact that Scoda was disciplined and fired by arguing that none of the discipline started until after Bio filed an internal discrimination complaint. In essence, Bio speculates that FedEx never would have disciplined Scoda if Bio had not filed a GFTP complaint. However, a plaintiff's speculation is not enough to defeat a motion for summary judgment. See Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332 (7th Cir. 1991) ("[A] plaintiff's speculation is not a sufficient defense to a summary judgment motion."). Moreover, as noted by Defendants, Bio himself admitted that he never complained to FedEx about racial discrimination until November 2001, which was two months after FedEx had issued the first Performance Reminder to Scoda. Bio Depo. at 205-06. Bio's attenuated, speculative theory that FedEx disciplined and fired Scoda to cover up its discrimination of Bio is not enough to save his discrimination claim.
In sum, Bio and Scoda were not directly comparable in all material respects because Bio had substantial experience and expertise as an Engineering Specialist at FedEx, and Scoda was still learning the position. Even if Bio and Scoda were comparable in all material respects, FedEx did not treat Scoda better than it treated Bio — Scoda was disciplined three times and fired within thirteen months of becoming an Engineer Specialist. Finally, Bio's theory that Scoda was disciplined and fired to cover up discrimination against Bio is speculative and without support in the record. Accordingly, the Court concludes that Bio has failed to establish that he was treated less favorably than similarly situated employees outside of his protected class, which is an essential element of his prima facie case. Although the parties also debate whether Bio can establish pretext, the Court has no occasion to address their arguments because failure to satisfy any element of the prima facie case is fatal to a Title VII discrimination claim. See Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003) (affirming summary judgment for defendant because plaintiff failed to show that similarly situated individuals outside the protected class were treated more favorably). Because Bio has not established his prima facie case, his claim fails at the summary judgment phase. The Court GRANTS Defendant's Motion for Summary Judgment with respect to the discriminatory discipline and discharge claim.
IV. CONCLUSION
For the reasons stated herein, the Court GRANTS Defendant's Motion for Summary Judgment in its entirety.
IT IS SO ORDERED.