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holding allegation that "tar and feather" comments were based on race was an unsupported conclusion and, even if based on race, these comments were not sufficiently pervasive to create a hostile work environment
Summary of this case from Barnes v. Prairie View A&M Univ.Opinion
No. 98 C 4488
June 12, 2000
MEMORANDUM. OPINION AND ORDER
I. BACKGROUND
Plaintiff York S. Howse ("Howse") brings this action against his former employer Northwestern Memorial Hospital ("Northwestern") and his former supervisors and managers Paula Mowbray ("Mowbray"), Debbie Herring ("Herring") and Beth Schmidt ("Schmidt"). Plaintiff also named, but failed to identify, Defendants Does 1-100.
Howse contends that Defendants engaged in various acts of racial discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000 (e) et seq. ("Title VII") and violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Howse also alleges that Defendants' purported conduct amounted to breach of implied contract, defamation and intentional infliction of emotional distress. For the reasons stated below, Defendants' Motion for Summary Judgment is granted on all seven counts of Plaintiffs Complaint.
A. Howse's Failure to File a Local Rule 56.1(b) Statement
Local Rule 56.1(a) requires the moving party to submit a statement of undisputed facts complete with citations to the record. In response, Local Rule 56.1(b)(3)(A)-(B) compels the non-movant to submit:
a concise response to the movant's statement that shall contain: a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and, a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.
Significantly, this Rule also states that "(a)ll material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party."Id. (emphasis added).
Usually, on summary judgment the District Court must construe the facts and inferences in the non-movant's favor. Nonetheless, the Seventh Circuit affords the District Court significant discretion regarding the consequences of a party's failure to comply with the rigorous requirements of Local Rule 56.1. Thus:
where [the non-movant] has not followed the local rules requiring a response, supported by appropriate citations to the record, to each uncontested fact asserted in the movant's [56.1(a)] statement, the moving party's facts remain uncontested. . . . In such a case, we "depart from our usual posture of construing all facts in favor of the nonmoving party; rather we accept as true all material facts contained in the [56.1(a)] statement.'Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997) (quotingJohnson v. Gudmundsson, 35 F.3d 1104, 1108 (7th Cir. 1994)).
In the instant case, Howse never attempted to identify the particular facts he believed to be in dispute, and never correlated these facts with the relevant portions of the record. Howse failed to file the requisite Local Rule 56.1(b) statement. Compounding this grave omission is Howse's Response Brief filed in opposition to Defendants' Motion for Summary Judgment (`Response Brief'), which contains no record cites or statements of fact. Howse never even bothered to file an affidavit relating his version of the facts. Moreover, even Howse's one attempt at providing the Court with factual support for his assertions falls flat. On page 3 of his Response Brief, Howse cites to "Exhibit A" but he fails to attach the referenced document to his filing with the Court or the opposing party. Howse's brief contains no other reference or any hint to the existence of any other evidentiary material supporting his claims. The Court is not required to engage in a treasure hunt to uncover the evidence a party relies on to demonstrate a material factual dispute or to establish the essential elements required to survive summary judgment.
Howse's failure to comply with Local Rule 56.1(b) is not to be taken lightly as this Rule serves important functions for the court and the parties. Indeed, "the kind of organization the rules require must occur sooner or later, and the system as a whole is better served if it happens sooner." Markham v. White, 172 F.3d 486, 489 (7th Cir. 1999). Therefore, pursuant to Local Rule 56.1(b)(3)(B), we accept as true all true material facts contained in Defendants' Rule 56.1(a) statement that were supported by citations to the record. See Bradley v. Work, 154 F.3d 704 (7th Cir. 1998) (upholding strict enforcement of Local Rule 56.1);Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994) (collecting cases in which the appellate court strictly enforced local rules pertaining to summary judgment); Cross v. Chicago School Reform Bd. Of Trustees, 80 F. Supp.2d 911, 913 (N.D. Ill. 2000) (granting summary judgment after strict application of Local Rule 56.1).
B. Undisputed Material Facts
In 1995, Howse began working in Northwestern's Sleep Lab. The Sleep Lab studied and analyzed sleep disorders. Howse monitored and scored sleep studies, provided technical assistance to Sleep Technicians, and assisted in training activities.
On April 7, 1997, Mowbray became the manager of the Sleep Lab and Howse's supervisor. Mowbray reported to Herring, the Director of Ambulatory Services. Schmidt worked in Northwestern's Human Resources Department.
In early July 1997, Mowbray asked Howse to ensure that the Sleep Technicians timely returned their self-evaluation forms to her. To this end, Mowbray told Howse that "we tar and feather the techs that don't return their forms." In his deposition, Howse testified that Mowbray said, "If you don't fill out your time cards correctly, I'm going to tar and feather you."
Another time, Mowbray discussed with Howse the content of a private e-mail she received from a physician. Mowbray told Howse to keep the information confidential and said, "you know if you repeat this I'll have your tongue cut out and serve it to you."
In his deposition, Howse testified that Mowbray told him that, "Jews were always trying to save a buck." Mowbray denies the comment. Howse is Catholic.
On July 24, 1997, Mowbray verbally warned Howse for insubordination. Mowbray recorded the incident on a Disciplinary Action Report dated July 24, 1997.
Howse and the other Sleep Technicians used a computer connected to Northwestern's computer system while performing their tasks. Northwestern mandated that the computer be used only for hospital business. Nonetheless, Howse loaded personal software on the computer. On July 25, 1997, Howse's personal software prevented physicians from accessing some data for the second time. On July 29, 1997, Mowbray instructed Howse to remove his software from the computer. Mowbray issued Howse a written warning in the form of a Disciplinary Action Report on July 30, 1997.
On July 29, 1997, Howse submitted a written grievance to Northwestern's Human Resources Department complaining of Mowbray's alleged "inappropriate, racist, and anti-Semitic and [at] times threatening comments." Howse also charged that Mowbray displayed "some retaliatory behavior . . . when her inappropriate behavior is challenged." Pursuant to Northwestern policy, the Human Resources Department scheduled a hearing on August 12, 1997. Howse cancelled the hearing on August 8, 1997 and he never requested that the hearing be rescheduled. Howse also informed Mowbray that he decided not to pursue his grievance.
On September 9, 1997, the Interim Director of Human Resources sent Howse a letter stating that Northwestern considered the grievance matter closed because Howse told Mowbray that he decided not to pursue his grievance and he never requested that the hearing be rescheduled. Howse responded in an e-mail on September 17, 1997 stating that he understood that the appeals process had concluded, but he did not consider the matter closed. Howse never attempted to reinstate his grievance or assert a new one.
Northwestern discontinued e-mail access for all Sleep Lab employees whose job did not require e-mail access. As a result, Howse and three other Sleep Lab employees lost e-mail access. In addition, to guard against computer viruses, the passwords used to access certain data and reports, used by physicians needed to be changed. Only physicians and management were apprised of the new passwords. Because they did not need access to this data, Sleep Lab employees, including Howse, were not notified of the new passwords. The password change did not restrict Howse's ability to access the databases necessary to perform his job responsibilities.
Howse filed a Charge of Discrimination against Northwestern on September 2, 1997 claiming that he suffered discrimination based on race.
In September 1997, the Sleep Lab experienced a temporary backlog of unscored sleep studies. To clear up the backlog, some physicians asked Mowbray to assign a Sleep Lab employee to devote more time to scoring during the day when the physicians were also working. Based on Howse's qualifications and responsibilities, Mowbray switched him to the day shift to perform this task. Pursuant to Northwestern policy, Howse no longer received the extra compensation paid for working the night shift. In addition, Mowbray instructed the Sleep Technicians working the night shift not to seek assistance from Howse so that he could devote his time to scoring the backlogged sleep studies.
Scoring sleep studies now became Howse's primary responsibility. On September 29, 1997, Mowbray sent Howse a memorandum memorializing their discussion in which Mowbray set Howse's performance goal, which required him to score a minimum of twelve sleep studies per week. On October 7, 1997, Mowbray sent Howse a memorandum memorializing their conversation in which Mowbray raised the goal to fifteen sleep studies per week. Howse was never reprimanded for failing to score the expected number of sleep studies.
Northwestern compensated Howse for all authorized overtime hours he recorded and submitted on timecards. Howse never filed a grievance claiming that he did not receive compensation for overtime worked.
Howse submitted his resignation on December 11, 1997.
On July 22, 1998, Howse filed a seven count pro se Complaint. In Counts I — III, respectively, Howse alleges claims against Northwestern for a racially hostile work environment, retaliatory discipline, and constructive discharge pursuant to Title VII. In Count IV, Howse asserts that Northwestern, Mowbray, Herring, and Schmidt breached an implied contract. Howse alleges that Mowbray defamed him in Count V and claims that Defendants' behavior amounted to intentional infliction of emotional distress in Count VI. Finally, in Count VII, Howse alleges that Northwestern violated the Fair Labor Standards Act by failing to compensate him for overtime worked.
Howse has never identified the putative Doe defendants. The remaining Defendants filed the instant motion for summary judgment on all counts pursuant to Fed.R.Civ.P. 56(c). Howse retained counsel and counsel filed Howse's response to Defendants' summary judgment motion. Howse never filed the requisite statement of disputed facts pursuant to Local Rule 56.1(b). For the reasons discussed below, we grant summary judgment on all seven counts of Howse's Complaint.
II. DISCUSSION A. Standard of Review
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, do not show a 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); Salima v. Scherwood South, Inc., 38 F.3d 929, 932 (7th Cir. 1994). On summary judgment, the non-moving party must present specific evidence demonstrating the existence of a triable issue of fact for issues on which the non-movant bears the burden of proof at trial. Liu v. TH Machine. Inc., 191 F.3d 790, 795-96 (7th Cir. 1999). "Neither `the mere existence of some alleged factual dispute between the parties,' nor the existence of `some metaphysical doubt as to the material facts,' is sufficient to defeat a motion for summary judgment." Bellaver v. Quanex Corp., 200 F.3d 485, 491 (7th Cir. 2000) (citations omitted).
Moreover, the plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an essential element of a claim. Nucor Corp. v. Aceros Y Maquilas De Occidente. S.A. de C.V., 28 F.3d 572, 583 (7th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Indeed, the non-movant's failure to establish an essential element "`necessarily renders all other facts immaterial.'" Id.
The court must draw every reasonable inference from the record in the light most favorable to the nonmoving party. However, the court must not make credibility determinations or weigh evidence. Anderson v. Libery Lobby, Inc., 477 U.S. 242, 255 (1986).
B. Hostile Environment Racial Discrimination (Count I)
In Count I, Howse contends that he was subjected to a racially hostile work environment in violation of Title VII. To be actionable, the alleged workplace conduct "must be sufficiently severe or pervasive `to alter the conditions of the plaintiffs employment and create an abusive environment.'" Tutman v. WBBM-TV. Inc./CBS. Inc., 209 F.3d 1044, 1048 (7th Cir. 2000) (quoting Meritor sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). In order to prevail, Howse must show that his work environment was both subjectively and objectively hostile or abusive. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Howse clearly believes that his work environment was hostile. Thus, we focus on the objective test and examine the reasonable person's perception of the totality of Howse's work circumstances. To this end, we examine, "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."Id. at 23. Accord Ngeunjuntr v. Metropolitan Life Ins. Co., 146 F.3d 464, 467 (7th Cir. 1998).
"Whether a plaintiff can survive summary judgment depends on the evidence a plaintiff is able to present." Johnson v. Zema Sys. Corp., 170 F.3d 734, 745 (7th Cir. 1999). Quite simply, Howse has presented no evidence. Rather, Howse appears content to rely on the unsupported allegations of his Complaint and the legal conclusions contained in his Response Brief. Regardless, we will examine the undisputed facts to determine if Howse's hostile environment claim survives summary judgment.
To support his hostile environment claim Howse argues that Mowbray uttered three allegedly discriminatory comments and imposed unreasonable additional job duties. First, Mowbray admits that she made two of the comments, one referencing tarring and feathering technicians who failed to return certain forms and one stating that she would cut out Howse's tongue and serve it to him if he repeated the confidential information that she shared with him. Howse has offered no evidence that Mowbray's alleged comments reflected a discriminatory animus. In his Response Brief, Howse argues that Mowbray's comments reference torture suffered by African Americans in American history. Howse's unsupported conclusions, however, do not constitute evidence. Even if we assume that Mowbray uttered these comments in a discriminatory fashion, the remarks amount to stray comments that are insufficient to render Howse's workplace intolerable. See Eiland v. Trinity Hosp. 150 F.3d 747, 751 (7th Cir. 1998). Accord Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 885 (7th Cir. 1998) (stating that isolated and innocuous incidents will not support a hostile environment claim'") (quoting McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 480 (7th Cir. 1996)).
In the third purported comment, Mowbray's allegedly said that "Jews are always trying to save a buck." Although the parties contest whether Mowbray ever said that, this dispute it is insufficient to raise a triable issue of fact. Other than bald allegations, Howse has provided no evidence to sustain his claim that Mowbray even uttered this statement. Moreover, by definition, the comment could not have been directed at Howse because he is Catholic.
Secondly, the undisputed evidence demonstrates that Howse's job responsibilities decreased when Mowbray assigned him to clear up the temporary backlog of unscored sleep studies. Once his job assignment changed, scoring sleep studies became Howse's primary responsibility. To assist Howse with this project, Mowbray requested that the Sleep Technicians working the night shift stop seeking assistance from Howse so that he could devote his time to scoring. In any event, the backlog was temporary and there is no evidence that Mowbray would not have returned Howse to his former job responsibilities once he finished scoring the backlogged sleep studies. It is also undisputed that Mowbray never required Howse to work any additional hours to satisfy his new weekly objective of scoring 15 sleep studies and that this objective was reasonable. Furthermore, the record demonstrates that Mowbray never disciplined Howse for failing to score the required number of sleep studies. Thus, we find as matter of law that Howse's job assignment was reasonable and not abusive.
Third, the undisputed record confirms that Northwestern discontinued Howse's e-mail. However, it is also uncontested that all Sleep Lab employees whose job did not require e-mail access lost such access. As a result, Howse and three other Sleep Lab employees lost e-mail access. It is also undisputed that Northwestern changed the passwords used to access certain data on the Sleep Lab computer. Northwestern provided the new passwords only to physicians and management in order to protect data from computer viruses. Significantly, the record clearly establishes that the change did not affect Howse's ability to perform his job tasks. Accordingly, we find nothing in the record that remotely suggests that Howse's computer access was changed for discriminatory reasons.
Finally, an employer avoids liability for its employees' harassment if it undertakes prompt and appropriate corrective action reasonably likely to prevent reoccurrence of the harassment. Tutman, 209 F.3d at 1048-49. The undisputed evidence shows that Northwestern responded promptly to Howse's complaint and timely instituted its grievance procedure. Northwestern scheduled a hearing two weeks after Howse submitted his written grievance. Howse, not Northwestern, cancelled the hearing and he neither attempted to reschedule it nor filed a new grievance. Nothing in the record establishes that Northwestern's response was anything but prompt and reasonably calculated to end the purported harassment. Furthermore, the record is devoid of any evidence suggesting that Northwestern's grievance procedure is ineffective or discriminatory.
Under the totality of the circumstance discussed above, we find that the undisputed evidence is insufficient to demonstrate an abusive work environment. We, therefore, grant summary judgment on Count I.
C. Retaliation (Count II)
In Count II, Howse alleges that he suffered "retaliatory discipline" after he complained about Mowbray's purportedly discriminatory comments. Although Howse neither discusses this claim in his Response Brief nor specifies the alleged retaliatory discipline, we will examine the uncontested evidence to determine whether Count II survives summary judgment.
Title VII forbids an employer from discriminating "`against any individual because he has opposed any practice made an unlawful practice by Title VII.'" Johnson, 170 F.3d at 746 (quoting 42 U.S.C. § 2000e-3 (a)). An employee establishes his prima facie case of retaliation if he demonstrates that: (1) he engaged in statutorily protected expression; (2) he suffered an adverse action; and (3) a causal link exists between the protected expression and the adverse action. Eiland, 150 F.3d at 753. Once the employee meets his burden, the employer must present a legitimate nondiscriminatory reason for its action. Id. If the employer is successful, the employee must demonstrate that the reason was pretextual and that the true reason was discriminatory or retaliatory. Talanda v. KEG Nat'l Mgmt. Co., 140 F.3d 1090, 1096 (7th Cir.), cert. denied, 525 U.S. 869 (1998).
It is undisputed that on July 29, 1997 Howse filed a grievance complaining of Mowbray's allegedly discriminatory conduct. Although Howse never bothers to set forth any evidence to meet his burden of proof, the undisputed record reveals two instances where Howse was disciplined. On July 24, 1997, Mowbray verbally warned Howse for insubordination and completed a report. Howse presents no evidence disputing the validity of this disciplinary action. Most significantly, however, Mowbray issued the verbal warning and report four days before he filed his grievance and, therefore, Howse cannot establish the requisite causal link between filing his grievance and the alleged "retaliatory discipline."
On July 29, 1997, Mowbray instructed Howse to remove his personal software from the Sleep Lab's computer and issued a written Disciplinary Action Report on July 30, 1997. Howse has provided no evidence that Mowbray issued the disciplinary report as a pretext for punishing him for filing the grievance. To the contrary, the undisputed evidence confirms that Mowbray had previously told Howse to remove his unauthorized personal software and that on two occasions Howse's software prevented a physician from accessing needed data. Moreover, Mowbray issued the written warning only after Howse failed to remove the software.
Howse cannot establish the requisite causal link between his protected expression and the discipline, an essential element of his retaliation claim. Even though Howse never bothered to provide even a scintilla of evidence to support his retaliatory discipline claim, we examined the record and found nothing that remotely demonstrates that Mowbray's actions were pretextual, discriminatory or retaliatory. Consequently, we grant summary judgment on Count II.
D. Constructive Discharge (Count III)
To establish a claim for constructive discharge, Howse must prove that the alleged discrimination created working conditions that were so intolerable that a reasonable person would be forced to resign. Tutman, 209 F.3d at 1049. In the ordinary case, "an employee is expected to remain employed while seeking redress." Drake, 134 F.3d at 886.
The threshold for a constructive discharge claim is higher than that for a claim for hostile work environment discrimination. Tutman, 209 F.3d at 1049. Howse argues that Mowbray's three comments and the "dramatic increase in job responsibilities" made his working conditions so intolerable that a reasonable person would be forced to resign. We have already determined that these acts are insufficient to establish a claim for hostile environment racial discrimination. Accordingly, this conduct cannot support Howse's constructive discharge claim.
In his Response Brief, Howse argues that he abandoned his effort at redress because it was futile. More specifically, he maintains that he withdrew his grievance because Schmidt told him "to split his claim and thus made his grievance less effective." (Response Brief p. 5). Howse, however, fails to offer any evidentiary support for Schmidt's purported statement or to explain why splitting his claim would render his grievance futile. Moreover, nothing in the record substantiates Howse's assertion that the grievance procedure was so unjust that he was forced to abandon any attempt at redress. Rather, the record confirms that Northwestern properly followed its procedure and scheduled a hearing two weeks after Howse filed his grievance. Howse cancelled the scheduled hearing and never requested that it be rescheduled. Furthermore, Howse offers no evidence that Northwestern would not have conducted a proper investigation and implemented a fair resolution.
For all the above reasons, we find that the undisputed evidence verifies that the circumstances of Howse's work environment never met the higher threshold necessary to prove his constructive discharge claim. Summary judgment is therefore granted on Count III.
E. Breach of Implied Contract (Count IV)
To survive summary judgment on his breach of implied contract claim, Howse must demonstrate the elements of an express contract, conduct by Defendants indicative of such an agreement and breach of the contract.Owen Wagener Co. v. U.S. Bank, 697 N.E.2d 902, 907 (Ill.App.Ct. 1998).
In his Complaint, Howse alleges that Northwestern breached its alleged contract "by issuing written and verbal warnings despite the knowledge that there was no basis for such discipline." (compl. ¶ 68). Howse, however, presents no arguments, law or evidence to support this allegation. Indeed, nothing in the record remotely confirms the existence of an implied contract or any breach. Moreover, we already discussed the validity of the written and verbal warnings issued by Mowbray. Thus, as a matter of law, we find that Howse cannot survive summary judgment on Count IV.
F. Defamation (Count V)
Defamation is "the publication of anything injurious to the good name or reputation of another, or which tends to bring him into disrepute."Voyles v. Sandia Mortgage Corp., 724 N.Ed.2d 1276, 1283 (Ill.App.Ct. 2000). A defamatory statement is one that "impeaches a person's integrity, virtue, human decency, or reputation and thereby lowers that person in the estimation of the community or deters third parties from dealing with that person." Muck v. Van Bibber, 585 N.E.2d 1147, 1150 (Ill.App.Ct. 1992). The plaintiff must also prove the existence of special damages or pecuniary loss. Voyles, 724 N.E.2d at 1283.
In his ¶ 74 of his Complaint, Howse claims that Mowbray made defamatory statements to other employees regarding Howse's job performance. Howse, however, provides no evidentiary basis for this cause of action. Accordingly, we grant summary judgment on Count V.
G. Intentional Infliction of Emotional Distress (Count VI)
Count VI of Howse's Complaint alleges that he suffered emotional distress due to the Defendants' alleged conduct. To state his prima facie case of intentional infliction of emotional distress, Howse must demonstrate that: (1) Defendants' conduct was extreme and outrageous; (2) he suffered severe emotional distress; and (3) Defendants' knew that their conduct was certain or substantially certain to cause Howse emotional distress. Johnson v. K Mart Corp., 723 N.E.2d 1192, 1198 (Ill.App.Ct. 2000). Once again, the undisputed evidence belies Howse's cause of action and he furnishes no evidence demonstrating the prima facie elements of his claim. Thus, summary judgment is granted on Count VI.
H. Fair Labor Standards Act (Count VII)
In Count VII of his Complaint, Howse asserts that Northwestern violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. when it "forced" him to work more than forty hours per week and "blatantly refused" to pay him overtime. (Compl. ¶ 85). Once again, however, Howse offers no law, argument, or evidence to support his cause of action. Most glaringly, Howse never even bothers to substantiate his assertion that he worked any overtime or that Northwestern knew that he had worked overtime. The undisputed evidence demonstrates that Northwestern compensated Howse for all the authorized overtime hours that he properly submitted for payment. Moreover, Howse himself testified that he neither received the necessary authorization to work the purported overtime for which he now seeks payment nor recorded the alleged overtime hours on his timecard. (Howse Dep. p. 34). Therefore, we grant summary judgment on Count VII.
III. CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is granted on Counts I-VII. This is a final appealable order.
It is so ordered.