Opinion
Case No. 00 C 6515
September 19, 2003
ORDER
Jeffrey Dunn, a pro se plaintiff, sued his employer Pace Suburban Bus Service ("Pace"), Bensinger and Dupont Associates ("BDA") and Alan K. Friedman. Following the court's December 5, 2001 and June 22, 2001 rulings on defendants' motions to dismiss, Dunn's only remaining count alleges retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against Pace. Pace has moved for summary judgment on the retaliation claim. For the reasons stated below, Pace's motion is granted
Background
Dunn, who is African-American, has been employed by Pace as a bus operator since 1992. Dunn filed a charge, No. 210971907, with the EEOC in 1997. In this charge, he alleged that he had been discriminated against because of his race. Specifically, Dunn charged that he was subjected to racial slurs on an ongoing basis since November 29, 1996. He also alleged that he had been retaliated against because he and his wife had prevailed in a previous lawsuit against Pace. Plaintiff voluntarily dismissed the lawsuit based on this charge in 1998. On July 19, 2000, plaintiff filed charge No. 210A04016 alleging that Pace had retaliated against him for filing the first EEOC charge. This lawsuit followed Dunn's main allegation centers around the fact that in 1998 his supervisor, Peter Kommer, ordered him to the Employee Assistance Program ("EAP") in order to receive a mental health evaluation. Dunn claims this was done in retaliation for his having filed his first charge with the EEOC.
In his Second Amended Complaint, Dunn alleged that Pace failed to promote him, that he was retaliated against for filing his first EEOC charge, and that he was discriminated against on the basis of race. In its June 22, 2001 opinion, the court concluded that Dunn's retaliation claim survived as it was clearly stated in his second EEOC charge. Further, `to the extent plaintiff has alleged that the harassment and failure to promote him were part of the alleged retaliation against him, those claims are reasonably related to the claims contained in his [second] EEOC charge." The court, however, held that any alleged discriminatory actions that predate the first EEOC charge "cannot be said to be reasonably related to his retaliation claim." In addition, acts which occurred 300 or more days before the second EEOC charge ( i.e., September 9, 1999) are barred Dunn "may proceed with his claim that Pace retaliated against him after he filed his first charge with the EEOC, including any alleged failure to promote him after this or subjecting him to racial slurs which occurred after the charge. All other Title VII claims are barred" Therefore, because they were not included in Dunn's second EEOC charge, Dunn's discrimination claims are no longer part of this case.
Analysis
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering a motion for summary judgment, the court must view the record and any inferences to be drawn from it in the light most favorable to the party opposing summary judgment. See Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991). The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party opposing summary judgment may not rest upon the pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is no genuine issue for trial unless there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id.
Because he has no direct proof of retaliation, Dunn must prove his retaliation claim through an indirect method of proof. Therefore, Dunn must show that: "[he] engaged in statutorily protected activity; (2) [he] performed [his] job according to [his] employer's legitimate expectations; (3) despite [his] satisfactory performance, [he] suffered an adverse employment action; and (4) [he] was treated less favorably than similarly situated employees who did not engage in statutorily protected activity." Haywood v. Lucent Tech., Inc., 323 F.3d 524, 531 (7th Cir. 2003) (citing Stone v. City of Indianapolis Public Util. Div., 281 F.3d 640 (7th Cir. 2002)). Dunn need not present evidence of a "causal link" between the protected expression and the adverse employment action. Id. Once the plaintiff establishes these four elements, the burden shifts to the defendant to "come forward with a legitimate, non-invidious reason for the adverse employment action." Id. Once the defendant puts forward a legitimate reason for the adverse employment action, the burden shifts back to the plaintiff to show that the defendant's reason is pretextual. Id.
While it is true that Pace initially recommended that Dunn be evaluated by Dr. Friedman, a mental health professional, after reading the allegations in Dunn's first lawsuit, there is no direct evidence in the record establishing that Pace told Dunn to see Dr. Friedman in retaliation for filing the first EEOC charge. Heuer v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir. 2000) (describing retaliation as "efforts motivated purely by feelings of vengeance to `get back' at the claimant for having filed the claim").
Dunn alleges that Pace took the following actions in retaliation for his filing his first charge with the EEOC: Dunn was removed from service as a bus operator on January 15 and 16, 1998 and June 27, 1998; Pace forced Dunn to take a medical leave of absence; Dunn was subjected to "unequal terms and conditions of employment as that of similarly situated white persons and/or other persons similarly situated"; Pace altered Dunn's personnel files; Dunn did not receive quality awards; Dunn's supervisor searched his property; Dunn's supervisor called him a "whining nigger" and monitored him for six to eight hours; two Pace board members rode Dunn's bus and made racial slurs directed at him; Dunn was deprived of promotions, transfers and back pay; Dunn did not receive quality work assignments; Dunn's insurance benefits were affected; Pace falsified information regarding Dunn's mental and medical health; Pace increased supervision of Dunn; Pace refused to allow Dunn to review his medical and personnel records; Pace failed to appropriately classify Dunn's involuntary leave status; Pace disseminated information about Dunn's medical and mental health; Pace ordered Dunn to see a mental health professional; Pace accelerated the disciplinary step process; Gloria Bidochka intimidated Dunn and threatened him with termination; Pace took Dunn off service for taking Amoxicillin; Pace controlled the use of Dunn's insurance card; Pace planted pornography on Dunn's bus; and Pace withheld an incorrect garnishment fee from Dunn's payroll check.
The court recognizes that Dunn is pro se. Dunn failed to follow the local rules governing summary judgment by not providing his own affirmative statements of additional facts and by failing to coherently respond to Pace's statements of undisputed fact with appropriate citations to the record Most of the materials submitted by Dunn are not admissible evidence, and may not be used in opposing Pace's motion. Nevertheless, in light of the fact that Dunn has responded without the assistance of counsel, the court has reviewed his materials, including his affidavit and his deposition testimony, to determine if he has met his prima facie burden. Having done this, it is clear that many of the allegations listed above occurred prior to September 9, 1999 and therefore are barred pursuant to this court's June 21, 2001 order.
It is undisputed that Division Manager Gloria Bidochka's last day before retirement was in January 1999. The court therefore has not considered any of Dunn's allegations concerning her as they occurred prior to September 1999.
There are a handful of incidents that either occurred post-September 1999 or were alleged without a date or timeframe. These allegations are: Pace altered Dunn's personnel files (Dunn's supervisor, Peter Kommer, told Dunn he would get a verbal warning and then gave him a written warning resulting in a suspension); Pace failed to give Dunn one quality award (a positive comment from a customer); Pace affected Dunn's insurance card on February 18, 2000 (because Dunn's insurance was charged for an evaluation by a mental health professional instead of Pace); Pace falsified information regarding Dunn's medical and M.I.B. status (Pace falsified the length of time Dunn was enrolled in an HMO, Pace informed Rush Prudential that Dunn had a previous medical condition that he did not have, Dunn did not authorize any "sessions" and not did authorize payment from an HMO, Pace informed Rush Prudential that Dunn was a patient in 1999); Oliver Williams of the EAP ordered Dunn to give him his insurance card; Pace refused to allow Dunn to view his personnel file; Dunn was denied a rider to an insurance policy because of information about Dunn's occupation given by Pace without Dunn's consent; Pace planted pornography on Dunn's bus; Pace removed Dunn from duty as a bus driver because he was on Amoxicillin; Pace's payroll department charged Dunn a fifteen percent garnishment fee that should have been two percent.
The court concludes that all but one of these incidents fail to qualify as adverse employment actions. In order to show that a certain action is a materially adverse employment action, "[a]t a minimum, the employee must be able to show a quantitative or qualitative change in the terms or conditions of employment." Haywood, 323 F.3d at 532. There is no actionable adverse action if the plaintiff "has not been disciplined, demoted, or terminated; has not been denied wage or employment benefit increases or been given less opportunity for such increases; and has not had her job responsibilities reduced or been made to perform more menial tasks." Haugerud v. Amery Sch. Dist., 258 F.3d 678, 692 (7th Cir. 2001). Though the term is interpreted broadly in this circuit, "not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441-42 (7th Cir. 1996).
Having reviewed Dunn's submissions as well as his deposition testimony, the court has done its best to decipher Dunn's convoluted allegations. For a number of the allegations, Dunn has failed to provide evidence that would allow a reasonable jury to return a verdict in his favor. With respect to Dunn's allegation that Pace refused to allow him to view his personnel and other records, the undisputed evidence shows that Dunn failed to follow the established procedures for requesting such information. Further, with respect to his allegation that he was unable to obtain a rider to an insurance policy, Dunn has failed to put forward any evidence supporting his assertion that Pace provided information to the insurance company on which it based its decision to deny him the rider. In contrast, Pace has provided evidence that it did not send any information concerning Dunn to the insurance company. Dunn also alleges that it was retaliatory for Pace to remove him from his position as a bus driver because he was on Amoxicillin. The undisputed evidence shows it is Pace's practice to consult the prescribing doctor to find out if prescribed medication effects the employee's ability to drive. The undisputed evidence also shows that Dunn's doctor informed Pace that Dunn should not drive while he was taking the drug. Additionally, Dunn alleges that Pace planted pornography on his bus, but asserts only that a maintenance man left pornography on his bus. Dunn presents no evidence that Pace was behind this action absent his own unsubstantiated beliefs. "A plaintiff's speculation is not a sufficient defense to a summary judgment motion." Karazanos v. Navistar Int'l Trans. Corp., 948 F.2d 332, 337 (7th Cir. 1991). Dunn also fails to show how this incident had a tangible, negative effect on his job. Finally, with respect to the improper garnishment fee, the undisputed evidence shows that when Dunn brought the error to the payroll department's attention, the error was corrected and he was reimbursed. Dunn's retaliation claims fails based on the above allegations.
For example, Dunn failed to explain what his "M.I.B status" is.
The next set of allegations, even assuming they occurred, do not rise to the level of an adverse employment actions. Dunn did not present any evidence that his failure to receive in writing a positive comment from a customer had a tangible, negative impact on his employment. Further, even if Dunn had presented evidence (which he did not) that Pace falsified the length of time Dunn was enrolled in an HMO, informed Rush Prudential that Dunn had a previous medical condition that he did not have, and informed Rush Prudential that Dunn was a patient in 1999, these types of actions are not akin to "a termination in employment [or] a demotion evidenced by a decrease in wage or salary." Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). Even after reading Dunn's deposition, the court cannot make out what Dunn means when he states that he did not authorize any "sessions" and did not authorize any payment from an HMO with respect to those sessions. It is Dunn's burden to come forward with evidence sufficient to demonstrate that his allegations are materially adverse employment actions. Here, he has failed to do so. Likewise, Dunn has failed to show that the order of Oliver Williams of the EAP that Dunn should give him his insurance card was a materially adverse action. Finally, Dunn alleges that his insurance card was somehow affected by Pace. He provides no evidence whatsoever that Pace did something to make a change in his insurance. Plaintiff did not present evidence sufficient to demonstrate that the actions listed above are significant enough to have had any tangible, negative impact on Dunn's employment.
With respect to Dunn's main allegation that he was sent to the EAP for a mental health evaluation in retaliation for filing an EEOC charge, the court concludes that this event is time-barred as it occurred prior to September 1999. In an effort to avoid this obvious conclusion, Dunn argues that it was not until discovery commenced and he allegedly received a note authored by Gloria Bidochka that he realized that Kommer sent him to the EAP for retaliatory purposes. Although Dunn claims Tab 37 of his exhibits contains a copy of the pertinent Bidochka note, Tab 37 does not contain such a copy (it contains Dunn's wife affidavit which does not mention the note). Because Dunn provides no evidence to support his argument that the mental health evaluation should be considered, the court is inclined to find the event time-barred.
However, even if the court considered the evaluation and found it sufficient to qualify as an adverse employment action, Pace has provided a nondiscriminatory reason for its actions. Pace asserts that Dunn was actually sent to the EAP for a mental health evaluation because of allegations made by Dunn in a lawsuit he filed in July 1997. Pace has presented evidence that Kommer, after reviewing Dunn's complaint, became concerned about Dunn's mental state. In that lawsuit, Dunn alleged that in exchange for being appointed as the Pace Board Chairman, Florence Boone owed former Governor James Thompson a favor. Dunn went on to allege that Thompson asked Boone to create a hostile working environment for Dunn and ultimately terminate Dunn. According to Kommer, he was suspicious of Dunn's allegations because Pace board members do not typically visit Pace's garages and have no role in the termination of Pace employees. Kommer was particularly troubled by Dunn's allegation that there was a conspiracy between Pace employees, doctors from BDA (which administers the EAP), judges and those involved in a separate lawsuit involving Dunn's wife because they were all Jewish and lived in Highland Park, Illinois. It is undisputed that when Peter Kommer receives information that suggests that an employee may be a threat to himself, other employees or passengers, he must take steps to ensure the employee's fitness for duty. The court cannot find as a matter of law that Kommer's response to this information was unreasonable.
See supra note 1.
Having given a reason for sending Dunn to the EAP, the burden now shifts back to Dunn to show that Pace's proffered reason is pretextual. Dunn may establish pretext "with evidence that the defendant w[as] more likely than not motivated by a discriminatory reason or that [its] explanations are not worthy of credence, i.e., they are factually baseless." O'Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002). Dunn has failed to show that a reasonable trier of fact could infer that Pace's stated reason was pretext. Dunn does not dispute that his earlier lawsuit contained the allegations cited by Kommer as the basis for sending Dunn to the EAP. Apart from his own unsubstantiated personal opinion, Dunn offers no basis to support a finding that Kommer sent him to the EAP in retaliation for filing an EEOC charge. "Such subjective beliefs of the plaintiff, however, are insufficient to create a genuine issue of material fact." McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir. 1989). Defendant's motion is granted as to the mental health evaluation.
In the end, only one of Dunn's allegations amounts to a timely claim of an adverse employment action. Dunn testified in his deposition that he received a suspension based on what he calls "fraudulent step proceedings." Specifically, Dunn testified that Kommer gave him a written warning instead of a verbal warning, which apparently affected the step disciplinary process and ultimately resulted in a suspension. Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998) (suggesting that a reprimand could be an adverse employment action if it lead to a tangible job consequence). However, even if the fraudulent step process and resultant suspension constitutes an adverse employment action, Dunn's claim fails as he has failed to provide any evidence of two of the other elements of retaliation. First, Dunn failed to put forward any evidence of similarly-situated individuals who did not engage in protected activity and did not suffer the same treatment. For Dunn 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). Because Dunn has not offered any evidence about similarly situated employees who did not file discrimination charges, his retaliation claim fails. Second, Dunn failed to put in any evidence that he was performing his job according to his employer's legitimate expectations. "[F]ailure to satisfy any element of the prima facie case proves fatal to the employee's retaliation claim." Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002).
The only evidence in the record that goes to this element is that Dunn received a negative employee evaluation in November 1998.
While the court recognizes that a pro se plaintiff is entitled to a certain amount of latitude with respect to the technical requirements of summary judgment, Kincaid v. Vail, 969 F.2d 594, 598 (7th Cir. 1992), "where a pro se plaintiff has not pointed to any evidence . . . which would indicate the existence of a triable issue of fact, he has failed to meet his burden under Rule 56." Khouri v. Acme Steel Co., No. 94 C 5216, 1996 WL 79381, *1 (N.D. III. Feb. 21, 1996) (citing Sellers v. Henman, 41 F.3d 1100, 1101 (7th Cir. 1994)).
To the extent Dunn's retaliation claim is based on discrete adverse employment actions, Pace's motion for summary judgment is granted However, that is not the only possible retaliation theory that is supported by Dunn's Second Amended Complaint. The Seventh Circuit has recognized that an employee may show that an employer retaliated against him by creating a hostile work environment. Drake v. Minn. Mining Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998) ("[R]etaliation can take the form of a hostile work environment"). Because Pace did not move for summary judgment based on this theory, Dunn's retaliation count survives under this theory for the present. If Pace so chooses, it may file a second motion for summary judgment within thirty days of this order directed to a retaliatory hostile work environment theory.