Opinion
IP 00-1380-C-T/K
March 31, 2003
B. Denise Larue, Haskin Lauter Cohen Indianapolis, IN.
Stephen J. Peters, Stewart Irwin, Indianapolis, IN.
ENTRY ON MOTIONS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiff, Albert Clegg, alleges that the Defendant, The Sullivan Corporation ("Sullivan"), discriminated against him because of his race in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Defendant denies the Plaintiff's allegations. With this entry, the court rules on the Defendant's Motion for Summary Judgment, the Defendant's Motion to Strike Declaration of John Hartsock, in Part, and the Defendant's Motion to Strike Plaintiff's Response to Defendant's Notice of Supplemental Authority.
The Plaintiff has abandoned his retaliation claim and summary judgment will be entered on that claim without further discussion.
I. Summary Judgment
Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). If the party moving for summary judgment demonstrates the absence of a genuine issue of material fact, then the non-moving party must "designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(e)).
When ruling on a summary judgment motion, the court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Affidavits submitted in support of or in opposition to a summary judgment motion must be based on personal knowledge and set forth facts that would be admissible in evidence. Fed.R.Civ.P. 56(e); see, e.g., Drake v. Minn. Min. Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998). Hearsay (an out-of-court statement offered to prove the matter asserted) is as inadmissible on summary judgment as it would be at trial, see, e.g., Minor v. Ivy Tech State Coll., 174 F.3d 855, 856-57 (7th Cir. 1999), unless the party offering such evidence demonstrates that it falls under an exception to the hearsay rule. Boyce v. Moore, 314 F.3d 884, 889 (7th Cir. 2002).
II. Motions to Strike
The Defendant's Motion to Strike Declaration of John Hartsock, in Part is denied for the following reasons. Motions to strike are disfavored. S.D. Ind. L.R. 56.1(f). A dispute regarding the admissibility of evidence may be addressed in the briefs, as the Defendant has done. The Defendant moves to strike two paragraphs from the Hartsock declaration, which statements are clearly hearsay and thus, inadmissible, and also of no relevance in any event. As such, the statements in paragraphs 5 and 8 of the Hartsock declaration are an improper consideration on summary judgment. The motion to strike is an unnecessary vehicle for the court to reach this conclusion. The motion to strike is DENIED; nonetheless, the court disregards paragraphs 5 and 8 of Hartsock's declaration.
The Plaintiff argues that the statements are not offered to prove the truth of the matter asserted and, thus, not hearsay, but are offered to prove the state of mind of the employees working for the Defendant. The court disagrees; but even if Mr. Clegg is right, the argument gets him nowhere. The states of mind of Hartsock, Chris Bush, Brad Clark and the unidentified co-workers from whom Hartsock claims to have learned that Justin McCullough's title was changed from "Laborer" to "Carpenter" are irrelevant to any material issue in this case.
The Defendant's Motion to Strike the Plaintiff's Response to Defendant's Notice of Supplemental Authority is remarkable in the sense that the Defendant's notice of supplemental authority could easily be regarded as also providing argument in support of the application of Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir. 2003), to this case — the very basis on which the Defendant moves to strike the Plaintiff's response. Such an argument is implicit in the Defendant's act of filing the notice and its assertion therein that Grayson "is instructive in this cause" and "on all fours with this matter[.]" (Notice Suppl. Auth. at 1, 2.) Granted, the Plaintiff's response to the Defendant's notice may have recited more factual assertions than the Defendant's notice, but this does not render the response objectionable. The Defendant's Motion to Strike the Plaintiff's Response to Defendant's Notice of Supplemental Authority is accordingly DENIED.
III. Factual Background
For purposes of summary judgment, the following is a brief summary of the material facts that are uncontroverted, deemed admitted, or, where controverted, viewed in the light most favorable to the Plaintiff.
Sullivan is a commercial general contractor. Terry Sullivan is its President, and Kevin Sullivan is Vice President of Construction. Albert Clegg was hired by Kevin Sullivan as a Laborer on September 13, 1995, and was employed by the Defendant until May 12, 2000. He is African American. He performed both general labor and carpentry work. Mr. Clegg was hired at the hourly rate of $11.00, his requested rate of pay. He received a merit pay increase of $1.50 in December 1997 and a merit pay increase of $0.50 in April 1999, bringing his hourly rate of pay to $13.00.
Sullivan does not have a formal pay guideline or structure. Employee pay rates vary by employee, are discretionary, and are based on an employee's experience, skills and ability; the employee's requested starting rate of pay; supply and demand; and general economics of the business at the time of the employee's hire; and negotiation.
During Mr. Clegg's employment, Sullivan had two employee handbooks, with the second revising the first. According to the 1991 handbook, Construction Management personnel were broken into six classifications in descending order: Construction Manager, Executive Superintendents, Carpentry Foreman, Carpenters (Level I), Carpenters (Level II) and Laborers. Sullivan claims that the 1991 handbook was revised in 1997 or 1998 and the lower three classifications were replaced with the single classification of Field Personnel.
On different occasions throughout Mr. Clegg's employment, he requested to be a Carpenter or receive a title other than Laborer. On May 12, 2000, he met with Kevin Sullivan and requested a different position. Kevin told Mr. Clegg that he "about had all you gonna get." (Pl.'s Dep. at 94.) Mr. Clegg responded that he would not accept that, and Kevin replied, "You need to find other employment." (Id.; see also id. at 92 (indicating that Kevin asked Clegg to seek other employment.)) That was the last day Mr. Clegg worked for Sullivan.
On May 18, 2000, Mr. Clegg filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC"). He claimed in his Charge that he was denied the opportunity to be promoted to any position other than Laborer.
IV. Discussion
Mr. Clegg alleges that Sullivan discriminated against him on the basis of his race by denying him equal pay and promotions, and by terminating his employment. Race discrimination in employment claims under Title VII and § 1981 are analyzed in the same manner. See Alexander v. Wis. Dep't of Health Family Servs., 263 F.3d 673, 682 (7th Cir. 2001). Mr. Clegg concedes that he lacks direct evidence of discriminatory intent so he must proceed under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir. 2003).
Under that framework, Mr. Clegg must first establish a prima facie case of race discrimination. If he does, then the burden of production shifts to Sullivan to articulate a legitimate, nondiscriminatory reason for its challenged actions. If Sullivan discharges this burden, then the burden reverts to Mr. Clegg to show that Sullivan's stated reasons are pretexts for discrimination. See id. Sullivan does not dispute that Mr. Clegg is a member of a protected class.
A. Failure to Promote
The Plaintiff claims that the Defendant discriminated against him by failing to promote him to the position of Carpenter. To establish a prima facie case of race discrimination in the failure-to-promote context, a plaintiff must show that 1) he belongs to a protected class, 2) he applied for and was qualified for an open position, 3) he was rejected for that position, and 4) the employer filled the position with someone outside of the protected class who was not more qualified than the plaintiff, or the position remained open. Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir. 2003); Howard v. Lear Corp. EEDS Interiors, 234 F.3d 1002, 1005-06 (7th Cir. 2000). Sullivan contends that Mr. Clegg cannot show that Sullivan had an open position, he was rejected for an open position, or the position was filled with someone outside the protected class.
Because Sullivan argues that the position of Carpenter was not filled, it makes no argument respecting Mr. Clegg's qualifications as compared to those of any person who may have filled the position. Thus, the Plaintiff's ability to satisfy this part of the fourth element of his prima facie case has not been challenged on summary judgment.
The Defendant claims that the position of Carpenter did not exist after the revision of the employee handbook in 1997 or 1998. The Plaintiff, however, argues that the evidence shows that even after Sullivan revised its handbook, it continued to classify employees as Carpenters and Laborers, promoted employees from the former to the latter, and hired new employees as Carpenters. He relies on the following evidence as support: (1) a phone directory distributed to employees on or about August 4, 1998, which designated employees with a "C" for Carpenter and an "L" for Laborer (K. Sullivan Dep. at 118 Ex. 18); (2) an August 6, 1998, memorandum in which Kevin Sullivan refers to an African-American employee as a "laborer/carpenter helper" (id. at 111-12 Ex. 42); (3) two documents completed in June and July 1999 by an employee in Sullivan's payroll department which list an employee's position as Carpenter (id. at 101, 110 Exs. 37, 41); (4) the statement by John Hartsock that he was hired by Kevin Sullivan in September 1999 as a Carpenter (Hartsock Aff. ¶¶ 2-3); (5) a document completed on or about February 21, 2000, by an employee in the Sullivan's payroll department which lists an employee's position as Carpenter (K. Sullivan Dep. at 86 Ex. 31); (6) evidence that at least two Caucasian employees, David Carter and Justin McCullough, were promoted from Laborer to Carpenter (Clegg Dep. at 175, 182, 192-93 Ex. 18, 19; K. Sullivan Dep. at 86 Exs. 18, 30; (7) the classification and reference to employees as Laborers or Carpenters throughout Hartsock's employment with Sullivan (Hartsock Aff. ¶ 6); and (8) evidence that employees with the titles of Laborer and Carpenter performed different types of work and had different levels of responsibility. (Clegg Dep. at 70-71, 134; Hartsock Aff. ¶ 7.) This evidence suffices to raise a triable issue of fact as to whether the position of Carpenter continued to exist after 1997 or 1998 and into 2000.
The August 1998 phone list and the August 1998 memorandum support a finding that the position of Carpenter had not been eliminated before that time. Though this evidence alone might not be sufficient to reach a jury on the question of whether the Carpenter position still existed, it gives the court pause as the Defendant maintains that the position was eliminated in 1997 or 1998. Also, a reasonable fact finder could reject Kevin Sullivan's explanation that he simply made a mistake in August 1998 in referring to the newly hired employee as a laborer/carpenter helper instead of Field Personnel.
The documents completed by employees in Sullivan's payroll department in 1999 and 2000 which identify employees as Carpenters are more troubling. One document was completed in response to a state court judge's order to answer interrogatories in proceedings supplemental involving a Sullivan employee (Ex. 37), one was completed for the purpose of verifying the employee's employment and income eligibility for residency (Ex. 41), and the third was completed to verify the employee's employment and income for purposes of qualification for a mortgage. (Ex. 31.) When asked about these documents, Kevin Sullivan testified that the payroll administrator received no input from him regarding the appropriate titles of the employees and he had very little interaction with the administrator. (K. Sullivan Dep. at 86, 101, 110.) This is one possible explanation.
However, a reasonable inference from this evidence is that the Defendant still differentiated between Carpenters and Laborers at least in June and July 1999 and even as late as 2000. One would expect that the forms were accurately completed to reflect the employees' actual positions with Sullivan. And, in the case of the order to answer interrogatories, Sullivan's payroll and benefits administrator certified under the penalties of perjury that the answers were true. (Ex. 37.)
More troubling, still, is John Hartsock's statement that he was hired by Kevin Sullivan in September 1999 as a Carpenter. Mr. Hartsock states in his declaration that he was employed as a Carpenter by Sullivan from September 1999 through December 1999. (Hartsock Decl. ¶ 2.) Significantly, Mr. Hartsock also states that he was hired by Kevin Sullivan who told him that his position was that of Carpenter. (Id. ¶ 3.) The Defendant argues that Hartsock's own subjective beliefs as to his title are irrelevant. Even if this were correct, Mr. Hartsock's statement tends to prove more than his own subjective belief. He offers the basis for his belief — Kevin Sullivan told him what his position was.
In addition, the Plaintiff also offers evidence that at least two Caucasians were promoted from Laborers to Carpenters. Exhibit 18 (the August 1998 phone list) and Exhibit 19 (an undated phone list) support the finding that David Carter was promoted from Laborer to Carpenter some time before August 4, 1998, and thus, refute the Defendant's position to the extent it claims the position of Carpenter was eliminated in 1997 or anytime before August 4, 1998. Also, Mr. Clegg testified that Justin McCullough became a Carpenter before Clegg left Sullivan's employ, and McCullough had been identified as a Laborer on the August 1998 phone list. This evidence raises a reasonable inference that McCullough was promoted to the Carpenter position sometime after August 4, 1998, and sometime after the Defendant claims the position was eliminated.
Other evidence may support a reasonable inference that the different positions of Carpenter and Laborer continued to exist throughout Mr. Clegg's employment with Sullivan. Mr. Clegg testified that there was a difference in the types of work and levels of responsibility between Laborers and Carpenters (see, e.g. Clegg Dep. at 134), and Mr. Hartsock, who worked for Sullivan only in 1999, stated that he saw Mr. Clegg performing work normally performed by a Carpenter. The Defendant offers evidence that duties were assigned to everyone including management as necessary to get the job done. That may be true, but the Plaintiff's evidence suggests that generally certain types of duties and responsibilities were given to Carpenters and others were assigned to Laborers. In addition, Mr. Hartsock's statement that throughout his employ with Sullivan workers were routinely classified and referred to as Laborers or Carpenters by itself may be conclusory. But when considered along with the other evidence offered by the Plaintiff, it tends to refute the Defendant's claim that the positions of Carpenter and Laborer were eliminated in 1997 or 1998.
Mr. Clegg also has offered sufficient evidence to support a finding that he asked to be placed in the position of Carpenter, was rejected for the position, and someone else outside the protected class filled the position. The Plaintiff testified that when he learned of available Carpenter positions, he asked Kevin Sullivan to be promoted to them, specifically making such requests within about a year and a half of his departure. (Clegg Dep. at 172-73.) Mr. Clegg also testified that he asked Kevin Sullivan, superintendents and project managers to become a Carpenter and, when he realized he "was getting no where [sic]" with that, asked for a different title. (Id. at 79-80.) Finally, on May 12, 2000,
As noted, Sullivan has not argued that it filled the Carpenter position with someone more qualified than Mr. Clegg.
Mr. Clegg again asked Kevin for a new position. (Id. at 94.) This evidence supports Mr. Clegg's claim that he requested the promotion to Carpenter.
Mr. Clegg argues that Sullivan's hiring and promotion practices establish that during his employment there were several openings for the position of Carpenter which were filled by Caucasians. He points to a number of different pieces of evidence including that Mr. Hartsock was hired in September 1999 as a Carpenter (Hartsock Aff. ¶ 2-3.) Even if none of the other evidence raises a genuine issue as to whether the position of Carpenter was open and filled by a Caucasian, the evidence regarding Hartsock does. Mr. Hartsock was hired in September 1999, well within 300 days of the filing of Mr. Clegg's Charge, he is Caucasian, and, according to his declaration, was told by Kevin Sullivan that his position was that of Carpenter.
The Defendant argues that the Plaintiff's complaints of a failure to promote based on periodic requests for promotion throughout his employment are not properly before the court for consideration because they lack specificity as to date. The Defendant would limit the Plaintiff to proof that he requested a promotion on May 12, 2000, only. The court disagrees that the Plaintiff's evidence is as insufficient as the Defendant urges. Mr. Clegg has offered evidence that he made repeated requests of Kevin Sullivan and others to be a Carpenter, and some of his requests to Kevin were made within a year and one half of his departure. From this evidence, a reasonable trier of fact could find that Mr. Clegg had requested a promotion around the time that Kevin hired Hartsock as a Carpenter. Though Mr. Clegg might have a better chance ultimately of prevailing at trial on his failure to promote claim if he had additional evidence, his evidence is sufficient to reach a jury on the question of whether he applied for an open Carpenter position which was filled by someone outside the protected class.
The Defendant's argument that the Plaintiff's nonspecific complaints of a failure to promote are outside the scope of his Charge also is unavailing. Mr. Clegg's Charge alleges that "I have continuously asked to be placed in a Carpenter position or any other position beside the Laborer." (Pl.'s Dep., Ex. 4.) Thus, the scope of the Plaintiff's Charge is not limited to the May 12, 2000, request for promotion.
To the extent the Plaintiff attempts to base his failure to promote claim on requests for promotion made more than 300 days before he filed his Charge, however, his claim fails to survive for summary judgment. A failure to promote is a discrete act and time-barred if occurring more than 300 days before the filing of the plaintiff's EEOC charge. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072-73 (2002); Tinner v. United Ins. Co. of Am., 308 F.3d 697, 708 (7th Cir. 2002), petition for cert. filed, No. 02-1049, 71 U.S.L.W. 3489 (Jan. 8, 2003); Inglis v. Buena Vista Univ., 235 F. Supp.2d 1009, 1027-28 (N.D.Iowa 2002) (following Morgan and holding plaintiffs' unequal pay claims time-barred as not within limitations period). Thus, any claim based on a failure to promote more than 300 days before May 18, 2000, is time-barred, and summary judgment will be GRANTED on such a claim.
The court understands the Defendant by relying on Grayson as arguing that even if the position of Carpenter continued to exist, its failure to promote the Plaintiff to that position cannot support an actionable claim as the failure to promote would amount to nothing more than the failure to give him a better job title. The Plaintiff has come forward with sufficient evidence to support a finding that the positions of Laborer and Carpenter involved different types of work and responsibilities. He also has some evidence to suggest that Carpenters had a higher rate of pay than Laborers. It is quite clear that Mr. Clegg believed the Carpenter position was a better position than the Laborer position and came with better pay, responsibilities and work, and, he has evidence to support that belief. Thus, in the court's view, Grayson is not on all fours with this case.
The court finds from the record that Mr. Clegg can demonstrate a prima facie case of race discrimination based on the failure to promote. Thus, it becomes Sullivan's burden to offer a legitimate, nondiscriminatory reason for its decision not to promote Mr. Clegg. Sullivan states that it was impossible to promote Mr. Clegg to the position of Carpenter as the position no longer existed. As discussed, the Plaintiff's evidence raises a question of fact as to whether the position of Carpenter continued to exist after 1998 and into 2000. If a trier of fact were to find that the position continued to exist, then it also could reasonably find that Sullivan's explanation for not promoting Mr. Clegg was dishonest, that is, a pretext for discrimination. Sullivan maintains that it may invoke the "same actor inference." The Defendant may argue that this inference should be drawn in this case, but it is a permissible rather than mandatory inference.
Therefore, Sullivan will be DENIED summary judgment on Mr. Clegg's claim based on a failure to promote, with the exception that summary judgment will be GRANTED on the claim to the extent based on a failure to promote which occurred more than 300 days before May 18, 2000.
B. Disparate Pay
The Plaintiff contends that the Defendant discriminated against him on the basis of his race by paying him less than Caucasian employees performing the same work as he. To establish a prima facie case of disparate treatment in pay, a plaintiff must show that (1) he is a member of a protected class, (2) he was qualified to receive a higher pay, and (3) he was paid less than similarly situated employees not in the protected class. See Bazemore v. Friday, 751 F.2d 662, 670 (4th Cir. 1984), aff'd in part, rev'd in part on other grounds, 478 U.S. 385 (1986) (per curiam).
The Defendant contends that the Plaintiff's claim for equal pay is barred as such a claim falls outside the scope of his Charge. Generally, a plaintiff may not bring a claim under Title VII not included in his EEOC Charge. See, e.g., Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th Cir. 2002). A claim for unequal pay was not asserted in Mr. Clegg's Charge. However, even if it were assumed that such a claim were "like or reasonably related" to Mr. Clegg's failure to promote claim, a claim based on unequal pay fails for a different reason, as discussed below.
Mr. Clegg argues that the following similarly situated Caucasian employees had a higher pay rate than he: (1) Brad Clark was hired as a Carpenter in March 1998 at $13.50 per hour (K. Sullivan Dep. at 86 Ex. 29), and as of February 2000, made $17.00 per hour (id. at 86 Ex. 31); (2) Justin McCullough was hired at $8.00 per hour, and as of the end of Clegg's employment with Sullivan, his rate of pay was $12.50 per hour (Terry Sullivan Aff. ¶ 14); (3) Mike Boaz was hired in or about February 2000 in the Field Personnel position at the starting rate of $15.00 (K. Sullivan Dep. at 86-9 Ex. 32); (4) Kevin Richardson was hired on or about August 21, 1995, in the Field Personnel position at a starting rate of $10.50 per hour and received one year later a raise to $12.50 per hour (id. at 93-94 Ex. 18, 34); (5) Shellie Goode was hired on August 25, 1997, in the Field Personnel position at an hourly rate of $12.00 (id. at 97 Exs. 18, 35); (6) John Hartsock was hired in September 1999 as a Carpenter at an hourly rate of $14.00 (Hartsock Aff. ¶¶ 2-3); and (7) Walter Scott Wyatt was hired in January 2000 as a Field Employee at an hourly rate of $12.50. (K. Sullivan Dep. at 104-05 Ex. 38). This evidence establishes that some Caucasian employees received a higher rate of pay than Mr. Clegg, so the burden of production shifts to Sullivan to offer a legitimate, nondiscriminatory reason for the pay disparity.
Sullivan offers evidence that the pay disparity is attributable to factors other than race, namely, an employee's experience, skills and ability; the employee's requested starting rate of pay; supply and demand; general economics of the business at the time of the employee's hire; and negotiation. As these are legitimate, nondiscriminatory reasons, it becomes Mr. Clegg's burden to demonstrate that the reasons are pretexts for discrimination.
Mr. Clegg offers no evidence to refute Sullivan's position as to what factors were considered in determining an employee's pay rate. As well, the Plaintiff offers insufficient evidence of these other employees' experiences, skills and ability, requested rates of pay, and the other factors relied on by Sullivan. Most of these employees on whom Mr. Clegg relies were hired a few years after he was hired, and the passage of time and variation in the business economics could easily account for any pay disparity. As for Mike Boaz, the record reveals he had a college degree in construction management, which Mr. Clegg did not.
The Plaintiff argues that an employee's starting salary and subsequent raises are completely discretionary with Kevin Sullivan responsible for making decisions regarding salary. Something more than the mere fact that the setting of a salary or pay rate is discretionary is necessary to show pretext, however. Mr. Clegg has not refuted Sullivan's evidence that any pay disparity is attributable to factors other than race. Therefore, the court finds that the Plaintiff has insufficient evidence to show that Sullivan's explanation for employee pay rates is a pretext for race discrimination. Accordingly, summary judgment will be GRANTED Sullivan on the race discrimination claim based on disparate pay.
However, it is noted that nothing in this ruling will preclude Mr. Clegg from recovering lost back pay should the jury find in his favor on any of his other claims and the evidence supports a claim for lost back pay by a preponderance of the evidence. This is an equitable issue, though, and the amount of back pay will be determined by the court and not the jury.
C. Discharge
Mr. Clegg alleges that when he confronted Kevin Sullivan on May 12, 2000, about denying him the same opportunities that Caucasian employees received, he was discharged. To establish a prima facie case in the discharge context, a plaintiff must show that (1) he is a member of a protected class, (2) at the time of his discharge, he was meeting his employer's legitimate expectations, (3) he was discharged, and (4) his employer treated similarly situated individuals outside of the protected class more favorably. Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7th Cir. 2002).The Defendant contends that the Plaintiff cannot show that he was discharged or that others outside the protected class were treated more favorably.
Sullivan has not challenged Mr. Clegg's ability to prove that he was meeting its legitimate expectations.
The Plaintiff has sufficient evidence to create a triable issue as to whether Kevin Sullivan discharged him on May 12, 2000. Though Kevin did not use words such as "fired" or "termination" at the time, the Plaintiff has testified that during their meeting about his position and pay, Kevin ultimately advised him: "You need to find other employment." (Pl.'s Dep. at 94; see also id. at 92 (indicating that Kevin asked Clegg to seek other employment.)). This evidence is sufficient to reach a jury on the question of whether Mr. Clegg was discharged.
Though Sullivan contends that Mr. Clegg cannot establish the fourth element of his prima facie case, it is not contested that Sullivan continued to employ Caucasian individuals on and after May 12, 2000. Thus, a reasonable jury could find that with regard to Mr. Clegg's alleged discharge, Sullivan treated others outside the protected class more favorably.
Mr. Clegg can demonstrate a prima facie case of discrimination based on discharge, so Sullivan must come forward with a legitimate, nondiscriminatory reason for his discharge. Sullivan has argued only that Mr. Clegg was not discharged and, thus, has advanced no explanation for that discharge. Therefore, the Defendant will be DENIED summary judgment on the Plaintiff's race discrimination claim based on his alleged discharge.
V. Conclusion
For the foregoing reasons, the Defendant's Motion for Summary Judgment will be GRANTED as to: the Plaintiff's failure to promote claim based on the failure to promote which occurred more than 300 days before May 18, 2000; the Plaintiff's discrimination claim based on disparate pay; and the Plaintiff's retaliation claim; but DENIED as to all other claims; the Defendant's Motion to Strike Declaration of John Hartsock, in Part is DENIED; and the Defendant's Motion to Strike Plaintiff's Response to Defendant's Notice of Supplemental Authority is DENIED. Entry of judgment awaits resolution of the claims which remain for trial.
ALL OF WHICH IS ORDERED.