Opinion
Cause No. IP 99-0548-C-M/S.
October 24, 2000.
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on defendant Indianapolis Public Transportation Company's ("IPTC") motion for summary judgment on plaintiff John T. Finney, Jr.'s ("Finney") claim of race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Finney alleges that after he complained to management about a Ku Klux Klan incident in the workplace, IPTC began taking a series of actions that were retaliatory and that discriminated against him because of his race. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS IPTC's motion for summary judgment.
I. FACTUAL BACKGROUND A. FINNEY'S FAILURE TO COMPLY WITH LOCAL RULE 56.1
Southern District of Indiana Local Rule 56.1(a)(1) requires the moving party to submit a Statement of Material Facts that complies with L.R. 56.1(f). The rule then requires the non-moving party to provide a Response to Statement of Material Facts that complies with that same section. See L.R. 56.1(b)(1). In addition, any facts that the non-moving party wishes to add to the Statement of Material Facts must be filed as a separate Statement of Additional Material Facts that must also comply with L.R. 56.1(f). Section (f) provides in pertinent part:
(f) Requirements for Factual Statements and Responses Thereto.
(1) Format and Numbering. The Statement of Material Facts shall consist of numbered sentences. The Response to Statement of Material Facts must be numbered to correspond with the sentence numbers of the Statement of Material Facts, preferably with each respective factual statement repeated therein. Any Statement of Additional Material Facts must consist of numbered sentences and start with the next number after the last numbered sentence in the Statement of Material Facts. . . .
(2) Format of Factual Assertions. Each material fact set forth in a Statement of Material Facts, Response to Statement of Material Facts, Statement of Additional Material Facts must consist of concise, numbered sentences with the contents of each sentence limited as far as practicable to a single factual proposition. Each stated material fact shall be substantiated by specific citation to record evidence. . . .
(3) Format of Objections to Asserted Material Facts or Cited Evidence. Objections to material facts and/or cited evidence shall (to the extent practicable) set forth the grounds for the objection in a concise, single sentence, with citation to appropriate authorities.
L.R. 56.1(f)(1)-(3). Finally, L.R. 56.1(g) provides that "[i]n determining the motion for summary judgment, the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are specifically controverted or objected to in compliance with L.R. 56.1(f)." The Court may use its discretion in deciding how strictly to enforce compliance with L.R. 56.1. See L.R. 56.1(k); Bradley v. Work, 154 F.3d 704, 708 (7th Cir. 1998) (finding that the district court "was within its discretion to insist on compliance with [L.R.] 56.1").
The Seventh Circuit has recognized that L.R. 56.1 "serve[s] to notify the parties of the factual support for their opponent's arguments, but more importantly inform[s] the court of the evidence and arguments in an organized way — thus facilitating its judgment of the necessity for trial." Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995). Moreover, "a party contesting summary judgment has a responsibility under [rules such as L.R. 56.1] to `highlight which factual averments are in conflict as well as what record evidence there is to confirm the dispute.'" Id.
Finney has not even attempted to comply with L.R. 56.1. IPTC submitted a detailed Statement of Material Facts, complete with numbered sentences and citations to the record. Finney did not respond to those numbered sentences, and instead sprinkled his response brief with citations to testimony and documents that supposedly refuted IPTC's assertions. Finney did not object to any of IPTC's proffered facts, nor did he attempt to dispute them in accordance with L.R. 56.1. As a result, to the extent IPTC's facts are supported by admissible evidence, the Court will accept them as true. See Srivastava v. State Personnel Dept., 2000 WL 1358618, *2 (S.D.Ind. September 19, 2000) ("Srivastava has not specifically controverted or objected to any of the facts as claimed and supported by admissible evidence by State Personnel. Consequently, the court assumes that the facts set forth in State Personnel's Statement of Material Facts are admitted to exist without controversy. . . .").
B. FINNEY'S EMPLOYMENT WITH IPTC
IPTC, sometimes known as "Metro" or "IndyGo," is a municipal corporation the provides public transportation primarily in Marion County, Indiana. Material Stmt. of Facts ¶ 1. Finney was an African-American hourly employee who worked as a bus driver for IPTC. Id. ¶¶ 2, 3. Finney belonged to Amalgamated Transit Union, Local 1070 (the "Union"). Id. ¶ 3.
C. THE KKK INCIDENT
On January 9, 1999, the Ku Klux Klan ("KKK") held a rally in downtown Indianapolis, Indiana. Id. ¶ 4. That morning, Finney was waiting in the drivers' room of the IPTC facility for a work assignment. Id. ¶ 5. The drivers' room is adjacent to the "cage" area where radio dispatchers and schedulers communicate with drivers and assist in distributing work assignments. Id. ¶ 6. At that time, Finney's co-workers Jeff Poe, Max Emberton, and James Coy were on duty in the cage. Id. ¶ 7. Poe, Emberton, and Coy were Caucasian, non-management employees that were also members of the Union. Id. ¶ 8.
One employee constructed a cardboard hat resembling a dunce hat. Id. ¶ 11. Another employee apparently placed the cardboard dunce hat on his head, constructed a sign that said "CLOSED Gone to Ralley (sic) KKK," and posted the sign on the cage door. Id. ¶ 12. This incident lasted approximately five to seven minutes. Id. ¶ 13. Soon thereafter, an IPTC supervisor confiscated the mock hat and sign, ending the incident. Id. ¶ 14.
IPTC has a policy for reporting and investigating incidents with racial overtones. Id. ¶ 15. Finney received a copy of the IPTC Harassment Policy and Procedures, and the EEO Policy Statement. Id. ¶ 16. Finney did not follow the procedures outlined in the EEO policy, nor did he report the incident to IPTC management. Id. ¶ 17. IPTC began a prompt investigation of the incident by interviewing witnesses. Id. ¶ 18. As a result of the incident, IPTC issued General Bulletin 99-1 to all employees on January 19, 1999 describing the KKK-related conduct as "offensive, unacceptable, and inexcusable" and stating that disciplinary action had been administered according to the IPTC Code of Conduct. IPTC admonished all employees to avoid such conduct and notified all employees of IPTC's intent to work with the Union to enforce the related sections of the Code of Conduct. Id. ¶ 19.
On February 23, 1999 IPTC issued General Bulletin 99-3 announcing that all employees would receive sensitivity training, that stricter discipline would be applied to future racially insensitive conduct, that new guidelines would be posted in the dispatch area, that a salaried employee would be hired to supervise the scheduling and dispatch area, and that Poe and Coy had been relieved of their duties in scheduling and dispatch. Id. ¶ 20. Finney attended meetings about the KKK incident and was allowed to fully and openly discuss his views of the incident. Id. ¶ 23. The Union also conducted a special meeting to discuss the KKK incident. Id. ¶ 24.
IPTC issued Coy a five-day suspension, the maximum penalty allowed under the applicable Code of Conduct section. IPTC gave Poe a written warning, also the maximum allowable penalty under the Code. Id. ¶¶ 25-29. IPTC also disciplined Emberton and two African-American employees for laughing at the incident. Id. ¶¶ 30-31. Finney acknowledges that IPTC took appropriate disciplinary action with respect to the KKK incident and that no further incidents occurred. Id. ¶ 34.
D. THE ALLEGED RETALIATION AND/OR HARASSMENT
1. Accusations Of Parking The Bus In The Wrong Location
Finney claims that IPTC accused him of parking his bus in the wrong location. Id. ¶ 43. Finney admits that he was actually parked in the wrong location. Id. ¶ 44. He also admits that the complaint giving rise to the parking investigation and allegation was generated by a customer, not an IPTC employee. Id. ¶ 45. Finney further admits that it was appropriate for an IPTC supervisor to advise him that he was parked in the wrong location. Id. ¶ 46. IPTC did not discipline Finney for parking in the wrong location. Id. ¶ 47.
2. Problems Scheduling Vacation
Finney also claims that IPTC harassed and retaliated against him when it told him he could not take his vacation until October 1999 and denied him vacation in April 1999. Id. ¶ 48. Alberta Ward, an African-American co-worker, allegedly told Finney he could not take his vacation until October 1999. Id. ¶ 51. Once IPTC management learned of the vacation dispute, Finney was given the opportunity to take his vacation in April 1999 as he had originally requested. Id. ¶ 55.
3. IPTC's Attempt To Dock Finney's Pay For Tardiness
Finney also alleges that IPTC wanted to dock his pay when he failed to timely report to work on February 26, 1999. Id. ¶ 57. Finney admits that he was late reporting for duty that day. Id. ¶ 58. After discussing the issue with Finney, IPTC management removed the absence from his record. Id. ¶ 59. Finney received no disciplinary action or pecuniary loss as a result of the incident. Id. ¶ 60.
4. IPTC accuses Finney Of Failing To Stop At A Railroad Crossing
Finney alleges IPTC falsely accused him on March 3, 1999 of failing to stop at a railroad crossing. Id. ¶ 62. Finney received no disciplinary action as a result of the alleged failure to stop. Id. ¶ 64.
5. IPTC Charges Finney With Using Abusive Language
Finney claims IPTC harassed and retaliated against him when it charged him on February 11, 1999 with using abusive language on the property. Id. ¶ 65. On that day, Finney became irate when co-workers passed around a petition to save the jobs of Poe and Emberton. Id. ¶ 67. Finney used the words "MF" and "SOB" in tone that was louder than normal. Id. ¶ 68. IPTC disciplined Finney for violation of the Code of Conduct that prohibits the use of "boisterous, profane or vulgar language." Id. ¶ 71. Finney does not deny the truth of the allegations regarding his misbehavior. Id. ¶ 72.
6. IPTC Denies Finney Credit For Customer Compliment
Finney claims that IPTC denied him credit in an employee incentive program for a customer compliment he had received. Id. ¶ 73. Even with the customer compliment, Finney would not have received an increased bonus under the incentive program. In fact, the failure to credit Finney was of no financial consequence to him whatsoever. Id. ¶ 77.
7. IPTC Issued Finney An "Event" For His Sixth Absence
Finney additionally claims that IPTC gave him an "event" for a sixth absence under the absenteeism policy, while a white female did not receive an "event" for her eighth absence. Id. ¶ 78. There were no financial consequences to Finney as a result of receiving the "event." Id. ¶ 82. The eighth event of absence under the policy contained in the collective bargaining unit with the Union results in a discharge from employment. Id. ¶¶ 79, 84. Had IPTC strictly applied its attendance policy, the white female would have been subject to discharge. Id. ¶ 85. IPTC occasionally made exceptions to the policy to prevent discharge on the occurrence of an employee's eighth absence. Id. ¶ 86. Finney knows of no facts that IPTC treated the white female differently because of her race. Id. ¶ 87.
8. IPTC Accuses Finney Of Using Abusive Language with Teenagers
Finney used the words "mother fucker, niggers, bitches, and whores," during an incident with teenagers at a bus stop on May 1, 1999. Id. ¶ 91-92. Finney admits that IPTC disciplined him in accordance with the Code of Conduct for the incident. Id. ¶ 93.
9. IPTC Investigates Finney Regarding Sexual Harassment Charges
IPTC initiated an investigation of an incident involving a female co-worker's complaint that Finney asked her, "Why is it that everyone wants your pussy?" Id. ¶¶ 94-95. IPTC interviewed witnesses that confirmed the co-worker's claim regarding the comments. Id. ¶ 96. Finney admits that he asked the co-worker, "Why is it that everyone wants you?" Id. ¶ 98. He further admits that his question referred to the co-worker's sexual conduct. Id. ¶ 99. IPTC issued Finney a Code of Conduct Violation Notice and suspended him for five days with pay for making the derogatory statement. Id. ¶¶ 100-101.
10. IPTC Allegedly Refused To Recognize Finney For Service And Safe Driving
Finney further claims that IPTC harassed and retaliated against him when it overlooked him for recognition for two years of service and for a two-year safe driver award. Id. ¶ 109. Finney's entitlement to the award and recognition accrued in May 1999, but IPTC does not issue such awards or recognition during the month in which they accrue. Id. ¶ 112. For example, Finney had earned similar awards in May 1998, but did not actually receive the awards until October 1998. Id. ¶ 114.
11. IPTC Terminates Finney
After IPTC supervisor Dean Whitehead learned of an allegation that Finney made a sexually-oriented comment to another co-worker, Whitehead contacted the co-worker to investigate the situation. Id. ¶¶ 117-118. Although the co-worker refused to give Whitehead a statement, she had reported to another IPTC supervisor, Jack Smith, that Finney had asked her something to the effect of "I like to see you eat the banana." Id. ¶¶ 118-119. Finney claims that he said, "How are you going to eat that banana?" Id. ¶ 120. After speaking to the co-worker about Whitehead's questioning of her, Finney began searching for Whitehead. Id. ¶¶ 123, 125. When he found him, Finney became "heated" and profane. Id. ¶ 126. When another IPTC supervisor, James Stewart, told Finney to leave the property, Finney told him that he would "fuck [Stewart] up" and that he would "whoop [Stewart's] ass." Id. ¶¶ 127, 129. When Whitehead asked Finney to lower his voice, Finney replied that he would "whoop his ass." Id. ¶ 128.
After Finney left the building, a supervisor instructed him not to re-enter. Id. ¶ 130. Finney disregarded this directive and re-entered the building. Id. ¶ 131. At this time, Finney was "irate," "loud," and "mad." Id. ¶ 134. When he later encountered Whitehead outside the building, he told him that he was a "sorry excuse for a man." Id. ¶ 135.
IPTC terminated Finney in June 1999 pursuant to the Code of Conduct for acts of assault and insubordination, both of which are dischargeable offenses. Id. ¶ 136. Although Finney filed a grievance over his termination, he failed to attend the first and third grievance meetings. Id. ¶ 138. Finney has filed three charges of discrimination with the Equal Employment Opportunity Commission. He alleges that IPTC took several actions, including terminating him, in retaliation for his protected activity and because of his race. IPTC has filed a motion or summary judgment, and the parties have fully briefed the motion.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
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. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). 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. 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), cert. denied, 520 U.S. 1116 (1997). 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 he relies. 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. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a 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. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). 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. 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. 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 his case, one on which he 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), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit had suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. Holland, 883 F.2d at 1312. As the Seventh Circuit has recently emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. TITLE VII STANDARDS
Although the parties seem to be in agreement that Finney is asserting a claim of retaliation, it is not clear from Finney's complaint or brief what other theories he relies upon. Part of this confusion stems from the fact that Finney apparently uses the words "harassment" and "retaliation" interchangeably, although each word represents a distinct cause of action under Title VII. See Heuer v. Weil-McLain, 203 F.3d 1021, 1022-1023 (7th Cir. 2000) (noting that "Title VII makes discrimination and retaliation separate wrongs."). In addition, although he uses the word "harassment" in his brief, Finney does not argue that he suffered a hostile work environment or cite any of the applicable racial harassment case law. With no specific guidance from Finney as to his theories, the Court concludes based upon a reading of his complaint and brief that he is alleging claims for retaliation and race discrimination. The Court will address IPTC's motion accordingly.
Finney agrees with IPTC that he is attempting to establish his case via the burden-shifting mechanism outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the indirect method of proof, Finney must initially set forth, by a preponderance of the evidence, a prima facie case of race discrimination or retaliation. Id.; Stockett v. Munice Indiana Transit System, 221 F.3d 997, 1000-1001 (7th Cir. 2000). If Finney makes a showing sufficient to prove a prima facie case he will enjoy a rebuttable presumption of discrimination that shifts the burden of production to IPTC to articulate a "legitimate, nondiscriminatory reason" for its actions. Stockett, 221 F.3d at 1001. IPTC may do so by producing evidence, whether or not persuasive, of a nondiscriminatory reason. Hicks, 113 S.Ct. at 2747 (noting that the plaintiff retains the ultimate burden of persuasion on the issue of intentional discrimination). If IPTC succeeds in this task, the presumption dissolves and the burden of production shifts back to Finney to demonstrate that the proffered reason for the adverse employment action is a pretext for discrimination. Stockett, 221 F.3d at 1001.
To establish a prima facie case of race discrimination under the indirect method of proof, Finney must show that: (1) he is a member of a protected class; (2) that he suffered an adverse employment action; (3) that he was meeting IPTC's legitimate performance expectations; and (4) and IPTC treated similarly situated employees who were not in the protected class more favorably. Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999). To establish a prima facie case of retaliation, Finney must establish that: (1) he engaged in statutorily protected activity; (2) he suffered an adverse action; and (3) there is a causal link between the protected activity and the adverse action. Miller v. American Family Mutual Insurance Co., 203 F.3d 997, 1007 (7th Cir. 2000). In light of these governing standards, the Court will now address Finney's claims.
III. DISCUSSION A. TITLE VII RETALIATION CLAIMS 1. Adverse Employment Action Requirement
IPTC first argues that six of Finney's alleged claims of retaliation must be dismissed because they do not amount to adverse employment actions. It is well settled that Title VII does not cover "everything that makes an employee unhappy." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Instead, to be actionable the employment action must affect the terms and conditions of the employee's employment. Gordon v. Southern Bells, Inc., 67 F. Supp.2d 966, 986 (S.D.Ind. 1999). "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. A material adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). Such a material change "might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. Id.
It is undisputed that many of the alleged retaliatory acts had no impact whatsoever on the terms and conditions of Finney's employment. For example, while IPTC admonished Finney for parking his bus in the wrong location and failing to stop at a railroad crossing, it issued Finney no discipline for either act. In addition, IPTC apparently remedied Finney's problems with his vacation requests and removed the "absence" from his record when he reported late for duty. Similarly, although IPTC allegedly denied Finney credit for a customer compliment, he suffered no harm because even with the credit he would not have received anything under the employee incentive program. Finally, although IPTC allegedly delayed in recognizing Finney's two years of service and safe driving record, there is no indication as to how that materially altered the terms and conditions of his employment. As a result, IPTC is entitled to summary judgment on these six allegations of retaliation because they did not amount to adverse employment actions.
2. The Causal Nexus Requirement
With respect to Finney's remaining allegations of retaliation, IPTC has conceded that they amounted to adverse employment actions. Such a concession is of no help to Finney, however, unless he can establish a causal connection to his protected activity. To establish the requisite causal connection Finney must show "that the protected activity and the adverse action were not wholly unrelated." Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000). "Speculation based on suspicious timing alone, however, does not support a reasonable inference of retaliation; instead, plaintiffs must produce facts which somehow tie the adverse decision to the plaintiffs' protected actions." Id. "The mere fact that one event preceded another does nothing to prove that the first event caused the second. Rather, other circumstances must also be present which reasonably suggest that the two events are somehow related to one another." Id.
Finney has failed to produce any such evidence. Indeed, he admits that he used profanity the two times that IPTC disciplined him for using profane or vulgar language while on duty; he admits that he was absent for work for the sixth time when IPTC gave him an occurrence for his sixth absence; he admits that he asked a co-worker a question referring to her sexual conduct, resulting in a complaint from that co-worker and subsequent investigation of Finney; and he admits that IPTC terminated him after he became belligerent and insubordinate with his supervisors. In fact, just prior to his termination he told two different supervisors that he would "whoop" their asses, told one of those supervisors that he would "fuck him up," and disobeyed a supervisor's instruction to leave the building. While admitting to all of this conduct, Finney has failed to present any evidence linking IPTC's actions to his protected activity. As a result, he has failed to establish a causal connection and his prima facie case fails.
Even if Finney were able to establish a prima facie case of retaliation, however, IPTC would still be entitled to summary judgment. IPTC presented legitimate, non-discriminatory reasons for its actions, and Finney did not meet his burden of showing that these reasons were pretextual. "Pretext" is "more than a mistake on the part of the employer; pretext `means a lie, specifically a phony reason for some action.'" Richter v. Hook-SupeRx, Inc., 142 F.3d 1034, 1030 (7th Cir. 1998), quoting Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996), cert. denied, 519 U.S. 866 (1996). Thus, "[t]he issue of pretext does not address the correctness or desirability of [the] reasons offered for employment decisions. Rather, it addresses the issue of whether the employer honestly believes in the reasons it offers." Id. at 1029. Finney has produced no evidence that IPTC's reasons for its actions — Finney's use of vulgar and profane language, his insubordinate behavior toward his supervisors, his sixth absence from work, and a co-worker's complaint about his sexual comment — were phony reasons for its actions. Accordingly, IPTC is entitled to summary judgment on Finney's retaliation claim.
B. TITLE VII RACE DISCRIMINATION 1. Adverse Employment Action Requirement
Similarly, Finney must also show that he suffered an adverse employment action to establish a prima facie case of race discrimination. The Court has already determined that the following actions by IPTC did not amount to adverse employment actions: Finney's claims regarding IPTC's admonishment of him for parking his bus in the wrong location and for failing to stop at a railroad crossing; IPTC's confusion in scheduling his vacation and issuing him an "absence" when he reported late for duty; IPTC's denying him credit for a customer compliment; and IPTC's delay in recognizing his two years of service and safe driving record. Accordingly, IPTC is entitled to summary judgment on Finney's race discrimination claim with respect to those allegations.
Although not included in a Statement of Additional Facts, Finney added an additional allegation in his brief that IPTC used him as an example during a training session "as to what to do if someone does not like you." Pl.'s Opposition Brief at p. 3. Even if this allegation were properly before the Court, it does not amount to an adverse employment action.
2. Similarly Situated Treated More Favorably Requirement
Finney's remaining claims fail for a separate reason. Even assuming such claims involved adverse employment actions, Finney has failed to establish that similarly situated employees outside the protected class received more favorable treatment. To establish that another employee was similarly situated, Finney must show that the "comparables are similarly situated in all respects." Spath v. Hayes Wheels International Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000). For ease of reference, the Court will briefly discuss each of Finney's remaining allegations.
Finney claims that Orville Williams and Steve Harris, two white employees, also used profanity but received no discipline. Finney admitted, however, that his profanity was distinguishable from the general profanity used in the drivers' room. Moreover, other than his conclusory statement that Williams and Harris also used profanity, Finney provides no facts establishing that they were similarly situated to him. He provides no evidence of what Williams and Harris allegedly said, when they said it, whether anyone in IPTC management heard the language, etc. Without such evidence, Finney has failed to establish that they were similarly situated to him and his prima facie case fails.
With respect to IPTC's issuing him an "event" for his sixth absence, Finney claims that IPTC made an exception for a white female on her eighth absence by not giving her an event. It is undisputed, however, that under the absenteeism policy an eighth absence subjects an employee to termination. As a result, IPTC sometimes makes exceptions to the policy to prevent the discharge of an employee. Whether or not this was a sound business practice is not for this Court to decide. In any event, because Finney was not subject to termination under the absenteeism policy he was not similarly situated to the female employee and his prima facie case fails.
Finney further claimed that IPTC discriminated against him when it investigated him regarding allegations of sexual harassment and when it charged him of using profane language with teenagers. Instead of offering evidence of similarly situated employees that IPTC treated more favorably, Finney simply argues that IPTC did not properly investigate these incidents. Even assuming this were true, standing alone it does nothing to show that IPTC somehow treated similarly situated employees outside the protected class more favorably. As a result, Finney's prima facie case fails.
Finally, Finney claims that IPTC terminated him for the altercation with his white supervisors, yet did nothing to discipline them. IPTC submitted evidence that it disciplined one of those supervisors, Whitehead, by suspending him for five days. Finney claims that IPTC did not discipline another supervisor that had bumped up against him, yet he offers no evidence that IPTC management was aware of this situation. Without such evidence, IPTC could not have been expected to take any action. Even if Finney were able to establish a prima facie case on this particular allegation, however, he has failed to produce any evidence that IPTC's reason for terminating him — his threatening and insubordinate behavior toward his supervisors — was a pretext for discrimination. Accordingly, ITPC is entitled to summary judgment.
IV. CONCLUSION
Finney has failed to present sufficient evidence from which the Court could find a genuine issue of material fact on his race discrimination or retaliation claims. Accordingly, IPTC's motion for summary judgment on those claims is GRANTED.