Opinion
CAUSE NO. IP 01-1117-C H/K
May 14, 2003
B. Rafael Ramirez, Indianapolis, IN.
Gregory J. Utken, Baker Daniels, Indianapolis, IN.
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Juan Francisco Cabrera, a naturalized citizen of the United States originally from Bolivia, was a sales associate employed by defendant H.H. Gregg (whose legal name appears to be H.H. Gregg Appliances, Inc.). Cabrera alleges that H.H. Gregg discriminated against him on the basis of his national origin, forced him to endure a hostile work environment, and disciplined and discharged him in retaliation for his complaints about alleged discrimination, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Defendant H.H. Gregg has moved for summary judgment on all claims. For the reasons explained below, its motion for summary judgment is granted on all claims. In summary, Cabrera can litigate only the retaliation claim that he raised in his second EEOC charge, and the undisputed facts show that on this record, a jury could not reasonably find retaliation for protected conduct.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir. 2000).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to them. See, e.g., Alexander v. Wisconsin Dep't of Health and Family Serv., 263 F.3d 673, 681 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact. See Haugerud v. Amery Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001) (same standard applies to any type of case).
Undisputed Facts
With these standards in mind, the following facts are either undisputed or reflect the evidence in the light most reasonably favorable to the plaintiff. H.H. Gregg is a retailer of electronics, appliances, and computers, with facilities located throughout Indiana. McKinney Aff. ¶ 4. The sales floor is divided into departments based on categories of products, such as Home Office and Audio Visual. Id. In February 1998, H.H. Gregg hired Cabrera as a sales associate in its Muncie, Indiana store. Pl. Ex. 2; McKinney Aff. ¶ 5. He was assigned to the Home Office Department because of his background in computers. Westcott Aff. ¶ 3. Sales associates are paid on a commission basis and are assigned to work in a particular department only. McKinney Aff. ¶ 4. To sell products in another department, which is referred to as "cross-selling," a sales associate must receive prior permission from management. Id. Generally, a person will be authorized to cross-sell in another department only if he is not busy in his own department, all of the sales staff in the other department are busy, and a customer needs assistance. Id.
In addition, the sales associates operated according to a "qualifying" policy. Russell Aff. ¶ 3. Under the qualifying policy, sales associates, when assisting customers, must determine if those customers had received prior assistance from another sales associate. Id.; Cabrera Dep. 92-93. If a customer had received prior assistance, the sales associate must share any commission with the prior sales associate. Russell Aff. ¶ 3; Cabrera Dep. 92-93. As a result of the commission based pay and the sales structure, Cabrera testified, arguments between sales associates concerning "stolen" commissions were common. Cabrera Dep. 118-22, Dep. Ex. 10 (letter to management complaining of unauthorized cross-selling).
In April 1998, Larry Keller became the general manager of the Muncie store. McKinney Aff. ¶ 6. In September 1999, Jim Bryson became interim general manager and remained in that position until January 2000, when Doug Miller became the new general manager. Id. During September and October 2000, Rick Willison began working as the general manager. Id.
In August 1998, complaints were lodged against Cabrera concerning his treatment of cashiers and other sales associates. Keller Aff. ¶ 5; see Cabrera Dep. 141. After an investigation of those incidents, Cabrera was suspended for five days. Cabrera Dep. Ex. 23; Kelly Aff. ¶ 6. Cabrera then requested a transfer to a different store, but when H.H. Gregg offered to transfer him to the store in Anderson, Indiana, he declined. Cabrera Dep. 265-66; McKinney Aff. ¶ 7. In April 2000, Cabrera was issued a written warning and was sent home for using improper language on the sales floor during an altercation with another sales associate. See Pl. Ex. 4.
Willison testified that after he became store manager in September 2000, he received complaints from other employees about Cabrera not "qualifying" customers and cross-selling in other departments. Willison Aff. ¶ 3. He also testified that Cabrera had been in "some loud verbal altercations with sales associates on the sales floor." Id. Willison testified that on one such occasion, he personally had to "break up the verbal confrontation because of the scene it was creating on the sales floor." Id. Cabrera does not dispute the occurrence of any of these events, though he disagrees about where blame should lie.
On November 21, 2000, Cabrera filed his first charge with the EEOC, alleging that he had been discriminated against on the basis of his national origin. His charge specified:
I work for Respondent as a Sales Representative. I have expressed to management on several occasions that I would like to have a permanent position in the audio department. Respondent has continually denied my requests to be placed in this department.
As a floor salesman, I am permitted to sale [sic] audio equipment when all of the regular audio visual salesmen are busy. There have been several times Matt Russell and various other, Department
Managers have taken my sales commissions and given them to someone else.
Cabrera Dep. Ex. 3. About six weeks later, on December 30, 2000, Cabrera was three minutes late to a store meeting. Cabrera Dep. 320. Other employees were also late to the meeting. As a result, Willison issued written warnings to Cabrera and to other employees who were late. See id. at 320-21; Willison Aff. ¶¶ 4-6. After having a discussion concerning his tardiness, Cabrera requested a copy of the written warning. Cabrera Dep. 322. Willison, pursuant to what he at least believed was company policy, refused to provide Cabrera with a copy of the warning, explaining that it was company property. Id. at 324; Willison Aff. ¶¶ 6-7.
According to a company policy established in 1999, H.H. Gregg considered all personnel files to be company property. See McKinney Aff. Exs. A, B. Upon request, an employee could review his own employee file but could not make copies. Id., Ex. B. The policy also included a list of types of conduct that could result in immediate termination. Included in the list were "unauthorized taking of Company property" and "Insubordination, including, refusal to carry out instructions of a supervisor." Id., Ex. A. The policy was set out in the employee handbook. Id., ¶¶ 8-9. Cabrera testified that he received a copy of the employee handbook but that he did not read it. Cabrera Dep. 565. He did state, however, that he understood that it was something with which he should have familiarized himself. Id. at 566.
Cabrera testified that in the past he had always received a copy of any written warnings that he had received. Id. at 326. However, Cabrera also testified that this was the first time Willison had ever issued him a written warning. Id. at 326-27.
When Willison refused to give Cabrera a copy of the warning, Cabrera became angry, raised his voice, and said: "Well, if you don't give me a copy, I'm going to take it with me." Id. at 325, 457-58; Willison Aff. ¶ 7. Willison insisted that Cabrera return the document immediately and told him that he was not allowed to leave the store with it. Cabrera Dep. 326; Willison Aff. ¶ 7. Cabrera continued to refuse to return the document. Based on his refusals to obey Willison's instructions and the angry outburst, Willison instructed Cabrera to wait outside the office while he asked Mike Kerlik, a regional manager, what action should be taken. Willison Aff. ¶¶ 8-9; Kerlik Aff. ¶¶ 3-4. Kerlik told Willison to suspend Cabrera pending further investigation. Kerlik Aff. ¶ 4; Willison Aff. ¶ 9. After being notified of his suspension, Cabrera again refused to return the document and left the store. Cabrera Dep. 324-26; Willison Aff. ¶ 9.
Kerlik testified that shortly after speaking with Willison, he spoke with Tom Westcott, H.H. Gregg's Executive Director of Employee Development. Kerlik Aff. ¶ 5. Kerlik stated that he and Westcott determined "that Cabrera's actions justified dismissal because he had taken company property without authorization, and had engaged in insubordination when he refused to return the Employee Warning Report and left the store with it after being instructed not to do so." Id.; Westcott Aff. ¶ 4. Kerlik also testified that at the time of the decision to discharge Cabrera, he was not aware that Cabrera had filed any charges with the EEOC. Kerlik Aff. ¶ 6. Westcott apparently knew of the charge but stated in his affidavit that he did not discuss the EEOC charge with Kerlik or take the charge into account in deciding that Cabrera should be fired. Westcott Aff. ¶ 5.
Cabrera has not alleged that he received a right to sue letter based on his first EEOC charge, nor has he presented such a letter in his submissions to the court.
Cabrera filed his second EEOC charge on February 12, 2001 alleging only retaliation. Specifically, he charged:
I was terminated from my position as Sales Representative on December 30, 2000. Before my termination, I was reprimanded for being 3 minutes tardy. During my disciplinary meeting I explained to management that Matt Russel [sic], Manager as well as, several other employees were late but no adverse action was taken against them.
After reviewing the reprimand, I asked management to provide me with a copy of the document but they refused. I then made a copy of the reprimand myself and returned it to the store. Shortly after I returned the document, I was terminated.
Am. Cplt., Ex. 1. Cabrera alleges that a right to sue letter on the second charge was issued around May 3, 2001. See Am. Cplt., p. 1; see also McKinney Aff., Ex. C (EEOC right to sue letter dated on or about April 30, 2001). The second EEOC charge forms the basis of this lawsuit. See Am. Cplt., p. 1.
In the amended complaint, introductory paragraphs are simply listed, and the remaining paragraphs are set off by letters. Under each new heading, the complaint starts at the beginning of the alphabet. Thus, references to the amended complaint are listed as "Am. Cplt., p." Individual paragraphs, when practicable, are referenced first by the page followed by the paragraph letter. Cf. Fed.R.Civ.P. 10(b) ("All averments of claim or defense shall be made in numbered paragraphs. . . .") (emphasis added).
Discussion
In his amended complaint, Cabrera asserts three claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The three are: (1) hostile work environment; (2) discriminatory treatment based on his national origin in terms of: (a) employee discipline, and (b) management permitting employees to refuse to perform their assigned tasks in association with Cabrera; and (3) retaliatory discharge for filing a complaint with the EEOC. Am. Cplt., p. 2, ¶¶ A-F. The first two claims must be dismissed because they fall outside the scope of Cabrera's actionable EEOC charge. The third claim must be dismissed because a reasonable jury could not find in Cabrera's favor even if the evidence is considered in the light reasonably most favorable to him.I. The Scope of Cabrera's EEOC Charges
H.H. Gregg argues that this lawsuit must be limited to the matters charged in Cabrera's second EEOC charge, which did not include his claims for hostile work environment and for discrimination based on national origin.
Cabrera has not responded to any of H.H. Gregg's arguments with respect to the scope of his EEOC charges, except to argue that his hostile work environment claim satisfies the statute of limitations requirements as set out by the Supreme Court in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). This response misses the point. H.H. Gregg has argued that two of Cabrera's claims should be dismissed for failing to exhaust administrative remedies. In other words, his claims in the lawsuit exceed the scope of his EEOC charge and do not otherwise satisfy the two-part test set forth in Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc). Whether his hostile work environment claim satisfies a statute of limitations is not an issue.
H.H. Gregg's arguments on this point are valid and bar consideration on the merits of Cabrera's claims of national origin discrimination and a hostile working environment. Generally, a plaintiff may not bring claims under Title VII that were not originally brought in the EEOC charge. Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995). "This rule serves two purposes: affording an opportunity for the EEOC to settle the dispute between the employee and employer and putting the employer on notice of the charges against it." Id., citing Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). However, a plaintiff may assert claims not included in the EEOC charge if he can meet the two-part test set out by the Seventh Circuit in Jenkins v. Blue Cross, 538 F.2d at 167. "To include a discrimination claim in a federal district court complaint that was not brought in the charges filed with the EEOC a plaintiff must pass the two prong test of Jenkins: (1) the claim is like or reasonably related to the EEOC charges, and (2) the claim in the complaint reasonably could develop from the EEOC investigation into the original charges." Harper, 45 F.3d at 148, citing Jenkins, 538 F.2d at 167; accord, Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001); Cheek v. Peabody Coal Co., 97 F.3d 200, 202-03 (7th Cir. 1996).
Under the first prong, claims are "reasonably related if there is a factual relationship between them. That means that `the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals.'" Kersting, 250 F.3d at 1118, quoting Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994) (emphasis in original).
In Cheek v. Peabody Coal, a case similar to this one, the Seventh Circuit held that because the plaintiff had not "raised [her claim of a hostile working environment] or even its seeds before the EEOC, [she] was not entitled to bring it in her Title VII action." 97 F.3d at 203. In her EEOC charge, the plaintiff had alleged that she was discriminated against on the basis of her sex. Id. at 202. She based this claim on a theory of disparate treatment, arguing that male employees were treated more favorably than she was. She did not state in either her charge with the EEOC or her complaint filed with the court that she was the victim of sexual harassment in the form of a hostile working environment. Rather, she raised the issue of the hostile working environment for the first time in opposition to the defendant's motion for summary judgment. Id. The district court dismissed the claim for failing to comply with the EEOC filing requirement as well as for failing to plead it in her complaint.
In affirming that decision, the Seventh Circuit stated that while a "plaintiff may pursue a claim not explicitly included in an EEOC complaint," she may do so only "if her allegations fall within the scope of the charges contained in the EEOC complaint." Id. The court concluded that a claim of hostile working environment implicates "different individuals and stem[s] from different conduct" than a claim of disparate treatment. Id. at 202-03.
A. Hostile Work Environment
Like the plaintiff in Cheek v. Peabody Coal, Cabrera did not assert any allegations of a hostile work environment until he filed his complaint in this court. See Am. Cplt., p. 2, ¶¶ E-F. His claim of a hostile work environment cannot survive.
First, the same individuals are not implicated. Cabrera's amended complaint alleges that he "was subject to unwelcome harassment" and that the harassment was so severe and pervasive as to alter the terms and conditions of his employment. Id. He does not specify in his complaint who carried out the harassment, although it appears that it was his co-workers. The amended complaint alleges that other employees made derogatory comments about his national origin and accent, and that warehouse employees refused to help his customers. These allegations do not implicate the same individuals as those in his EEOC charges. The second EEOC charge addressed only his termination. The first EEOC charge alleged discriminatory treatment by H.H. Gregg management in terms of denying a transfer and denying credit for sales commissions. See Cabrera Dep. Ex. 3.
Cabrera seems to have tried to salvage the hostile environment claim by arguing that the harassment he alleges consisted of the actions of other salesmen to take "his" commissions, which he argues required the approval of management. The first EEOC charge alleged that Matt Russell and other managers "have taken my sales commissions and given them to someone else." There is no trace of this theory in Cabrera's amended complaint, though, which refers only to derogatory comments by co-workers and to the warehouse employees' refusal to help his customers. Also, Cabrera has not developed any coherent argument of this point in his brief, and it is deemed waived. E.g., Tenner v. Zurek, 168 F.3d 328, 330 (7th Cir. 1999) (single sentence not developed into a cognizable argument is treated as a waiver); Border v. City of Crystal Lake, 75 F.3d 270, 274 (7th Cir. 1996) (finding waiver where plaintiff failed to develop argument before district court). Even if Cabrera had asserted such a claim in his amended complaint, moreover, he still has not shown that he has a right to sue letter from the EEOC regarding his first EEOC charge. See Worth v. Tyer, 276 F.3d 249, 259 (7th Cir. 2001) (lack of right-to-letter is non-jurisdictional defense to Title VII claim, but lack can be cured by submitting letter to court before case is dismissed), citing Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991).
Second, the claim of hostile working environment does not encompass the same conduct as Cabrera's EEOC charges. In his first EEOC charge, Cabrera alleged that he was being discriminated against by H.H. Gregg management when they refused to transfer him to another department and for allegedly taking his commissions. Cabrera Dep. Ex. 3. This charge focused on the decisions of management in making transfers and in allocating commissions based on who helped the customer. It did not involve the conduct of other employees directed at Cabrera. See Cheek v. Peabody Coal, 97 F.3d at 203 (allegations of sexual harassment were completely unrelated to EEOC charge which alleged that male employees were treated more favorably than female employees in receipt of sickness and accident benefits); cf. Kersting v. Wal-Mart Stores, 250 F.3d at 1118 (plaintiff waived all allegations of retaliation except those specifically listed in EEOC charge and those that described the same conduct and involved the same people). The second EEOC charge is limited to Cabrera's reprimand and termination for having filed a previous charge of discrimination with the EEOC. Am. Cplt., Ex. 1. That charge involves conduct unrelated to any claim of a hostile work environment. See, e.g., Sickinger v. Mega Systems, Inc., 951 F. Supp. 153, 155 (N.D.Ind. 1996) (stating that "[s]exually harassing someone is a completely separate type of conduct from the act of terminating that person," but allowing claim for retaliation not included in EEOC charge on other grounds). Cabrera's claim of hostile work environment involves conduct entirely distinct from that alleged in either of his EEOC charges.
Furthermore, the hostile environment claim involves different individuals with different motives, and it could not reasonably have been expected to develop from the EEOC investigation into the original charges. See Risk v. Ford Motor Co., 48 F. Supp.2d 1135, 1146-47 (S.D.Ind. 1999) ("However, the glaring fact remains that her EEOC charge never describes any conduct remotely related either to sexual harassment generally or to the specific behavior of her fellow employees at the table. . . . Conjuring such an implication where none exists would frustrate the goal of giving the employer some warning of the conduct at issue and affording the EEOC and the employer an opportunity to attempt reconciliation without resort to the courts."). Accordingly, H.H. Gregg's motion for summary judgment is granted with respect to Cabrera's claim for harassment based on race or national origin.
Even if this claim could be considered on the merits, it would fail on the merits. Cabrera has offered no admissible evidence that would support his claim of a hostile working environment. He has provided only inadmissible evidence of two specific occasions when a co-worker was allowed to take a commission that he claims should have been given, at least in part, to him. See Pl. Ex. 6; Pl. Ex. 8 (letter to Bryson). There also appears to have been some tension among all the sales associates regarding cross-selling.
To prevail on a claim of harassment in the form of a hostile working environment, the plaintiff must prove that the work environment was both subjectively and objectively hostile. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Furthermore, "a plaintiff must show negligence in order to hold an employer liable for co-worker harassment." Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998). Cabrera fails on all points. He has not demonstrated that the alleged harassment was severe or pervasive, see Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 551-52 (7th Cir. 2002) (isolated incidents not enough to constitute hostile working environment), or that the conduct was directed at him because of his national origin, see Cabrera Dep. 120 (common practice among sales associates to take each other's commissions). Furthermore, there is no evidence that H.H. Gregg was aware of any allegedly discriminatory conduct being directed at Cabrera having anything to do with being Hispanic. See Russell Aff. ¶ 5; Miller Aff. ¶ 3.
B. National Origin Discrimination
In his amended complaint, Cabrera alleges that H.H. Gregg selectively disciplined him because of his national origin, treated similarly situated non-Hispanic employees more favorably with respect to discipline, and permitted warehouse employees to refuse to carry out merchandise purchased by Cabrera's customers. Am. Cplt. p. 2, ¶¶ C-D. H.H. Gregg argues that this claim should be dismissed, as well, because it exceeds the scope of the allegations raised in the second EEOC charge, which is the only one properly before the court at this point. The court agrees. The second EEOC charge is limited to a claim of retaliation and is not a means to revive or present distinct claims of disparate treatment.
II. Retaliation Claim
Title VII prohibits an employer from retaliating against any employee because he has made a charge or otherwise participated in any proceeding under the Act. 42 U.S.C. § 2000e-3(a). Cabrera alleges that H.H. Gregg retaliated against him for filing his November 2000 EEOC charge when it disciplined and fired him on December 30, 2000.
Cabrera offers no direct evidence of retaliation. He relies instead on circumstantial or indirect proof to support an inference of retaliation. To establish a prima facie case of retaliation using circumstantial evidence, Cabrera must come forward with evidence tending to show that: (1) he engaged in statutorily protected activity; (2) he performed his job according to his employer's legitimate expectations; (3) he suffered a materially adverse action; and (4) he was treated less favorably than a similarly situated employee who did not engage in statutorily protected activity. Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002), citing Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 642-43 (7th Cir. 2002).
Cabrera has failed to come forward with evidence to support a prima facie case. He has not provided any evidence that he was performing his job according to his employer's legitimate expectations at the time of his suspension and discharge, or that a similarly situated employee who did not engage in protected activity was treated more favorably.
The only evidence Cabrera cites in support of his argument that he was performing his job according to his employer's legitimate expectations is the annual performance evaluation from May 2000. That evaluation was completed seven months prior to his termination on December 30, 2000 by Miller, who ceased being Cabrera's manager at least two months prior to Cabrera's termination. Miller Aff. ¶ 2; McKinney Aff. ¶ 6. Cabrera has not directed the court to any other evidence concerning his work performance on or about December 30, 2000. See Brummett v. Lee Enterprises, Inc., 284 F.3d 742, 745 (7th Cir. 2002) (plaintiff must demonstrate that he met legitimate expectations at the time of his termination). Cabrera has not disputed the fact that he engaged in the insubordination that immediately preceded his discharge. See Cabrera Dep. 324, 326 (admitting that he was told he could not copy warning report and that he took report after being told to return it), 457-58 (testifying that he stated: "Well, if you don't give me a copy, I'm going to take it with me."); see also Willison Aff. ¶ 7 ("Cabrera became very angry and raised his voice, demanding that I either provide him a copy or he would take it with him to copy on his own.").
In cases alleging discriminatory disciplinary action, including termination, an employee can establish a prima facie case by showing that other employees outside the protected group engaged in similar conduct and were not disciplined at all or as severely as the plaintiff. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002) (plaintiff may establish prima facie case by demonstrating that "an employer applied its legitimate employment expectations in a disparate manner"); Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939-40 (7th Cir. 2003) (plaintiff can show prima facie case in disciplinary situations with evidence "that two employees dealt with the same supervisor, were subject to the same workplace rules, and engaged in similar conduct, but nonetheless received disparate treatment for no apparent legitimate reason"). In such cases, the element of performing the job satisfactorily does not require the employee to show that his performance and behavior were flawless. However, Cabrera has not come forward with evidence showing that a similarly situated employee who did not engage in protected activity was treated more favorably.
The record shows that, in addition to Cabrera, four other people were late to the store meeting on December 30, 2000, including April Page, who was also three minutes late. See Willison Aff., Exs. A-E. All five were given written warnings. Cabrera argues that these other employees were similarly situated to him and that they were not suspended or discharged. However, Cabrera was not suspended or discharged for being tardy. He was discharged for insubordination and taking company property. McKinney Aff. ¶ 10 (Cabrera was discharged for insubordination and for taking an employee warning report without permission); Willison Aff. ¶ 10 (same); Kerlik Aff. ¶ 5 (same); Westcott Aff. ¶ 4 (same); see Cabrera Dep. 449 ("As far as I understand, it was either [because I was late] or because I took the paper with me."). Thus, Cabrera was treated the same as the other non-Hispanic employees who were also late to the store meeting in that they all received written warnings.
The problem for Cabrera is that no evidence in the record indicates that any of the other four employees who were also late that day refused to return the warning document or became angry or insubordinate with Willison. Apart from Cabrera, the other employees who were late to work that day did not receive a copy of their written warnings. Willison Aff. ¶ 6. Furthermore, H.H. Gregg has come forward with a list of approximately 31 employees who had not filed EEOC charges and were fired for insubordinate conduct. McKinney Aff. ¶ 12. H.H. Gregg has also come forward with a list of 56 employees who did not file EEOC charges and were discharged for taking company property. Id., ¶ 13.
There is no indication what property was taken. Julie McKinney, the director of H.H. Gregg's human resources department, testified that she "was not aware of any other Gregg employee who, . . . in defiance of a direct order from a General Manager, took an Employee Warning Report without authorization and was not fired." McKinney Aff. ¶ 11. This, of course, leaves open the possibility that Cabrera was the first such employee to engage in such conduct.
Even if Cabrera were able to meet the requirements of a prima facie case, he has not offered any evidence from which a reasonable jury could infer that H.H. Gregg's stated reasons for suspending and terminating him were pretextual. The only evidence in the record concerning Cabrera's discharge demonstrates that Cabrera was insubordinate to his immediate supervisor and that he took company property after specifically being instructed to return it.
Even if the court were tempted to question the severity of Cabrera's offense or the practice of not providing copies of written warnings, the Seventh Circuit has repeatedly taught that courts do "not sit as a super-personnel department that reexamines an entity's business decisions." Hiatt v. Rockwell Intern. Corp., 26 F.3d 761, 772 n. 13 (7th Cir. 1994) (citations omitted). "No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [the prohibition against retaliatory discharge does] not interfere." Id. (citations omitted). Cabrera has failed to come forward with evidence that would allow a jury to find that similarly situated employees were treated differently and that H.H. Gregg's proffered reason for terminating him was pretext. Accordingly, defendant's motion for summary judgment is granted.
Conclusion
For the foregoing reasons, defendant's motion for summary judgement is granted on all claims. Final judgment shall be entered accordingly.
So ordered.