Opinion
Cause No. IP 99-256-C H/G.
April 17, 2001.
ENTRY ON DEFENDANT'S SUMMARY JUDGMENT MOTION
Plaintiff Marcel Ihenacho worked as a physician's assistant at the United States Penitentiary in Terre Haute, Indiana. After six months of probationary employment, he was discharged. The reason given was his second failure to respond appropriately to a medical emergency. Ihenacho, who is black and from Nigeria, claims that he was fired because of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, and that he also discriminated against in other aspects of his employment. Ihenacho has named the United States Attorney General as defendant. The Attorney General heads the Department of Justice, which oversees the Federal Bureau of Prisons, the agency responsible for the penitentiary.
Pursuant to Fed.R.Civ.P. 25(d), the court has substituted Attorney General John Ashcroft for former Attorney General Reno as the named defendant in this matter.
The defendant has moved for summary judgment on Ihenacho's claims. As explained below, the court grants defendant's motion. Ihenacho has failed to produce evidence that would permit a reasonable jury to conclude that the defendant's stated reason for his discharge was a pretext for race or national origin discrimination. In addition, Ihenacho has not opposed summary judgment on the other discrimination claims in his complaint, which are barred because he failed to make a timely contact with the agency equal employment opportunity official and because the undisputed evidence shows in any event that there was no discrimination and no adverse employment action in such matters.
I. Summary Judgment Standard
Although some portions of defendant's motion seem to seek dismissal of Count III under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court construes defendant's motion as one for summary judgment on all claims in Ihenacho's complaint, and plaintiff appears to have construed the motion in the same way. Defendant relied on materials outside of the pleadings in support of dismissal, which which converted the motion into a summary judgment motion. See Fed.R.Civ.P. 12(b).
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility or about whether a reasonable inference should be drawn from circumstantial evidence of a person's intentions. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). However, the existence of "some alleged factual dispute between the parties," or "some metaphysical doubt" does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). Rather, the proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000). If the answer is no, however, it would be a "gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained." Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In employment discrimination cases, as in all cases, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
Defendant has pointed out correctly that where plaintiff attempted to dispute defendant's statement of material facts, plaintiff failed to cite the specific evidence relied upon, as required by this court's Local Rule 56.1. Plaintiff submitted only a very modest volume of evidence in opposition to summary judgment, which the court could review quite efficiently. Therefore the court has chosen to exercise its discretion to overlook plaintiff's failure to comply with Local Rule 56.1 in this respect. See Local Rule 56.1(k); Harmon v. OKI Systems, 115 F.3d 477, 480 (7th Cir. 1997) (affirming summary judgment where moving party failed to comply strictly with requirements of local rule; because of small volume of materials involved, failure did not prejudice opposing party and district court had excused the failure).
II. Undisputed Facts
For purposes of defendant's summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to Ihenacho, the non-moving party.
The Bureau of Prisons hired Ihenacho on a probationary basis as a physician's assistant at the United States Penitentiary in Terre Haute, Indiana on May 14, 1995. The prison is a maximum-security facility for felons with violent backgrounds. Clark Test. at 140-41.
Citations to "Test." refer to testimony in an EEOC hearing.
As a physician's assistant, Ihenacho was responsible for providing a wide range of emergency services to inmates and to staff, including primary care for trauma and life-saving procedures. Ihenacho Dep. Ex. 14. Like other prison employees, Ihenacho's duties also included maintaining prison security. Id.
When Ihenacho was on duty, he was responsible for responding to any call for emergency medical assistance at the prison. Ihenacho was required to travel to the scene of the emergency if the person in need of care could not be transported to the medical unit and if Ihenacho was not with a patient when he received the call. Ihenacho Dep. at 137-38.
Assistant Health Services Administrator Joseph Williams supervised Ihenacho's work on a day-to-day basis. Williams Aff. ¶¶ 4-5. On October 2, 1995, Williams wrote on Ihenacho's performance log that Ihenacho had failed to respond to a medical emergency. Id., ¶ 7 Ex. A. Williams also noted that a staff member reported that Ihenacho's radio was turned down to a very low volume that day. Id., Ex. A. Consistent with internal policy, Williams met with Ihenacho on October 6, 1995, to discuss the negative performance log entry. Id., ¶ 6; Ihenacho Dep. at 125. Ihenacho refused to initial the performance log because he said he had no knowledge of the medical emergency on October 2, 1995. Ihenacho Dep. at 125-26.
On November 7, 1995, at about 10:20 a.m., Officer David Parker called Ihenacho to request medical attention for a staff member who was having trouble breathing. Id. at 138, 173; Parker Test. at 289-90. Ihenacho told Parker to bring the staff member to the medical unit because he was with a patient. Ihenacho Dep. at 138-39, 144. Officer Parker hung up before Ihenacho finished speaking. Id. at 144. At the conclusion of the telephone call, Ihenacho understood that Parker was going to bring the staff member to him. See id.
About ten or fifteen minutes after Parker's telephone call, Captain Grommot made a radio call to request medical assistance for the same staff member. Id., Parker Test. at 294. Ihenacho still was with a patient. Ihenacho Dep. at 145. Nevertheless, Ihenacho rushed out of the medical unit when he heard the radio call. Id. at 144. Ihenacho then saw that another physician's assistant already was moving towards the emergency scene with a gurney and that other medical staff were present. Id. at 145. Ihenacho did not proceed to the scene.
Associate Warden Stephen DeWalt also responded to the emergency scene after he learned of the call for medical assistance for a staff member. DeWalt Test. at 433. Upon his arrival, DeWalt learned from Parker that he had first called Ihenacho and had been told by Ihenacho that he would need to bring the staff member to the medical unit. Id. Associate Warden Ciolli and Captain Grommot also conveyed the same information to DeWalt. Id. at 434.
DeWalt accompanied the sick staff member to the medical unit. While there, DeWalt told Health Services Administrator Christopher Rollins what he had learned about Ihenacho's conduct and asked Rollins to look into what had happened. Id. at 434. Rollins reported back to DeWalt that he had gone to look for Ihenacho and had found him alone in a room in the medical unit with the door locked. Id. Rollins reminded DeWalt that Ihenacho had been written up on October 2, 1995, for not responding to a medical emergency. Id. at 435. DeWalt and Rollins decided that DeWalt should recommend to Warden Jeffrey Clark that he terminate Ihenacho's employment. Id. at 436.
Warden Clark agreed with the recommendation and decided to discharge Ihenacho, who was still a probationary employee. During the probationary employment period, the prison monitors employee performance closely. See Clark Test. at 141. Clark believed that Ihenacho exercised poor judgment by not responding to the call for assistance that day. Id. at 143. He also considered that Ihenacho had received training about how to respond to emergencies and that Williams had spoken to Ihenacho about a month earlier for failing to respond to an emergency. Id. at 143-44. In addition, according to Clark, Ihenacho's record of failing to respond to emergencies destroyed other staff members' confidence in him, which was a significant issue in the prison environment. Id. at 142; see also id. at 153 (physician's assistant's perceived responsiveness is as important as his clinical skills). Clark has a low tolerance for failures to respond to emergency situations. See id. at 149.
Clark asked a human resources representative to prepare a letter on Clark's behalf to inform Ihenacho of his discharge. Id. at 130. The letter stated that Ihenacho's employment was being terminated because of unsatisfactory performance, citing specifically his failure to respond to medical emergencies on October 2, 1995, and November 7, 1995. O'Neal Decl. Ex. A. DeWalt met with Ihenacho and his union representative to discuss the letter. DeWalt Test. at 436-37. (Clark usually conducts termination meetings but he was out of the office when the meeting with Ihenacho occurred. Id. at 462.) During the meeting, DeWalt gave Ihenacho an opportunity to respond to the reasons for his termination discussed in the letter. Id. at 437. According to DeWalt, Ihenacho stated that he was unable to leave the medical unit in response to the call for assistance because he was performing an EKG on a patient at the time. Id. According to Ihenacho, he told DeWalt that he was with a patient on whom he had performed an EKG sometime that morning. Ihenacho Dep. at 146-48. DeWalt told Ihenacho that he would review the medical unit records related to the EKG. DeWalt Test. at 437-38.
In his EEO complaint, Ihenacho denied that he was given such an opportunity, but he now admits this fact. Compare Ihenacho Dep. Ex. 5 (EEO complaint) with Pl. Resp. to Def. Statement of Material Facts, ¶ 49.
The records revealed that Ihenacho had performed an EKG on a patient on November 7, 1995, at 5:42 a.m. Ihenacho Dep. at 160. Ihenacho made an entry on that patient's chart at 8:20 a.m. Id. at 152. The patient checked out of the medical unit at 9:18 a.m., about an hour before Parker's emergency call to Ihenacho. Id. at 63-64; DeWalt Test. at 438. Ihenacho subsequently has testified that, although he was with a patient at the time of the call, it may not have been the same patient on whom he had performed an EKG. Ihenacho Dep. at 145-46. Ihenacho does not dispute the accuracy of the medical unit's records related to the EKG. See id. at 165 (records reflect the right amount of time that Ihenacho spent with the patient on whom he performed the EKG).
Ihenacho asserts that he received less favorable treatment than another former physician's assistant at the prison who is white. Like Ihenacho, the other physician's assistant was a probationary employee. Clark Test. at 127. He failed to respond properly to calls from the medical unit while he was away from the prison but "on call." On June 21, 1994, the other physician's assistant was informed that he would be discharged on June 24, 1994. Id. at 128. At his request, the discharge date was extended until July 1, 1994 so that the other physician's assistant would have the opportunity to speak to Warden Clark about it. Id. at 129. After the two met, Clark decided not to discharge the other physician's assistant at that time. Instead, Clark gave him an oral reprimand. Id. at 132. In addition, Clark told him that any additional performance problems could result in the termination of his employment. Id. at 133. On October 9 and 10, 1994, the other physician's assistant did not respond to two calls from the prison. Second O'Neal Decl. ¶ 10. He was informed he would be discharged because of these incidents. Id. On October 17, 1994, Clark allowed the other physician's assistant to resign instead of being terminated. Clark Test. at 137. It is Clark's practice to permit an employee to resign if the employee makes such a request during a termination meeting. See id. at 149. Ihenacho made no such request. The undisputed evidence shows that Clark would have let Ihenacho resign if he had asked. Id.
The other physician's assistant received some additional entries on his performance log during the period following his oral reprimand. Until October 9, 1994, none of the entries related to his failure to respond to calls for assistance. See Second O'Neal Decl. ¶ 8. In addition, none of the entries resulted in an "unacceptable" rating. Id., ¶ 5.
Clark considered the other physician's assistant's conduct to be of a somewhat less serious nature than Ihenacho's. See Clark Test. at 152-53. Because the other physician's assistant was not present at the prison when he failed to respond to calls or pages, Clark believed his conduct was less significant than Ihenacho's in the eyes of staff and inmates. Id.
III. Discussion
Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). Ihenacho has not offered any direct evidence of race or national origin discrimination. The court therefore analyzes his claims under the three-step pattern of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To survive a motion for summary judgment, Ihenacho must first establish a prima facie case of discrimination by producing evidence that tends to show that: (1) he is a member of a protected class; (2) he performed his job satisfactorily; (3) he suffered a materially adverse employment action; and (4) he was treated less favorably than similarly-situated employees outside of his protected class. Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994) (race claim); Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1032 (7th Cir. 1998) (race and national origin claim). The same standards govern Ihenacho's claims of race and national origin discrimination. See id.
The prima facie case is intended to identify circumstances in which a jury could reasonably infer that an employment decision, if not explained, was the product of illegal discrimination. See, e.g., Lenoir, 13 F.3d at 1133. However, if the employer responds to the prima facie case by merely articulating a legitimate, non-discriminatory reason for its decision, the plaintiff must then come forward with evidence that would allow a reasonable trier of fact to find that the employer's stated reason is a pretext, meaning a false explanation for the decision. See id.; Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000).
Ihenacho's complaint includes four Title VII claims. Counts I and II allege that Ihenacho was discharged because of his race and national origin. Counts III and IV allege that Ihenacho was subjected to discriminatory disciplinary actions and performance evaluations because of his race and national origin. The court considers first the discharge claims and then the other claims.
A. Ihenacho's Discharge Claims
1. Ihenacho's Prima Facie Case
Defendant agrees that Ihenacho is a member of a protected class and that his discharge was an adverse employment action. Defendant contends that Ihenacho cannot establish the second or fourth elements of his prima facie case as a matter of law because: (1) Ihenacho's failures to respond to medical emergencies prove that Ihenacho was not performing his job satisfactorily; and (2) Ihenacho cannot prove that he received less favorable treatment than any similarly-situated white or native-born employee.
a. Satisfactory Job Performance
Defendant relies on the performance log notations for October 2, 1995, and November 7, 1995, to demonstrate that Ihenacho was not living up to its legitimate expectations. Ihenacho has come forward with evidence, in the form of his own testimony, to the effect that he did not engage in the conduct that gave rise to those notations. In addition, Ihenacho had received at least four "fully satisfactory" notations on his performance log. A plaintiff's burden to establish a prima facie case under Title VII is not onerous. The Seventh Circuit has recognized that a plaintiff may create a material dispute about his own abilities for purposes of a prima facie case by simply attesting that he was performing satisfactorily. See Roberts v. Separators, Inc., 172 F.3d 448, 451 (7th Cir. 1999) (assuming plaintiff could establish this element and moving on to related pretext analysis), citing Gustovich v. AT T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992) (distinguishing between the use of such "self-serving" evidence to establish element at the prima facie case and greater difficulty in using same evidence to show pretext).
Viewing the record evidence in the light reasonably most favorable to Ihenacho, Ihenacho has come forward with sufficient evidence of his satisfactory performance to create an issue for trial. According to Ihenacho's version of the relevant facts, which the court must credit on summary judgment, he did not actually fail to respond appropriately to medical emergencies on October 2, 1995, or November 7, 1995, and he had been rated as "fully satisfactory" on some occasions. Based on this record, a reasonable jury could conclude that Ihenacho was performing his job satisfactorily.
b. Treatment of Similarly-Situated White Employee
Ihenacho contends that he received less favorable treatment than the other physician's assistant, who spoke with Warden Clark about his discharge, who was given a "second chance," and who ultimately was allowed to resign. Ihenacho relies on his assertions about the other physician's assistant both to complete his prima facie case and to prove pretext. Because defendant's opening brief discussed Ihenacho's evidence about the other physician's assistant only in the context of the pretext analysis, the court does the same, below. The court assumes but does not decide that Ihenacho would be able to establish this element of his prima facie case for summary judgment purposes. See Roberts, 172 F.3d at 451; see also Vanasco v. National-Louis University, 137 F.3d 962, 966 (7th Cir. 1999) (analyzing pretext without deciding whether plaintiff was sufficiently qualified to establish prima facie case); Dugan v. Ball State University, 815 F.2d 1132, 1136 (7th Cir. 1987) (affirming summary judgment for employer on pretext grounds without deciding whether plaintiff created a fact issue on qualification as part of her prima facie case).
2. Pretext
Ihenacho's race and national origin discrimination claims based on his discharge fail as a matter of law because he has not produced evidence that would allow a reasonable jury to find that the defendant's stated legitimate, non-discriminatory reason for terminating his employment was pretextual. Defendant asserts that Ihenacho was fired on November 7, 1995, because he failed to respond appropriately to medical emergencies at the prison on October 2, 1995, and November 7, 1995. To survive summary judgment, Ihenacho has the burden of coming forward with evidence that would permit a reasonable jury to find by a preponderance of the evidence that the defendant's stated reason was not merely wrong as a factual matter (which the court must assume at this stage of the case) but was actually a false pretext for illegal race or national origin discrimination.
A pretext for discrimination "means more than an unusual act; it means something worse than a business error; `pretext' means deceit used to cover one's tracks." Kulumani, 224 F.3d at 684 (citing Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2108-09 (2000)). A plaintiff can establish pretext if he can show that the defendant's proffered reasons are either lies or completely lacking in factual basis. See Mills v. Health Care Service Corp., 171 F.3d 450, 458 (7th Cir. 1999); Ghosh v. Indiana Dep't of Environmental Management, 192 F.3d 1087, 1091 (7th Cir. 1999).
Ihenacho is not required to present direct evidence of pretext. Rather, he could establish pretext indirectly by producing evidence that would allow a reasonable jury to find that the defendant's proffered reason for firing him is not credible:
a plaintiff may accomplish this showing [of pretext] with evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge. These formulations are simply different ways of recognizing that when the sincerity of an employer's asserted reasons for discharging an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation.Testerman v. EDS Technical Products Corp., 98 F.3d 297, 303 (7th Cir. 1996) (citation omitted); see also Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000) (same); Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999) (plaintiff may show pretext by showing employer's stated reason is unworthy of credence).
In light of the importance of medical services in a prison, there could be no plausible argument here that a failure to respond appropriately to a medical emergency was not sufficient to motivate a decision to fire a member of the medical staff. Also, although Ihenacho disputes the actual facts of the failures attributed to him, the undisputed facts show that there was in fact some factual basis for finding that he had failed to respond appropriately to the two emergencies.
Thus, in an attempt to show pretext, Ihenacho relies on the defendant's treatment of an allegedly similarly-situated white employee, the other physician's assistant. Ihenacho argues that the facts that the other physician's assistant spoke with Warden Clark about his discharge, was given a "second chance," and was permitted to resign tend to show that his own alleged conduct did not motivate the defendant's termination decision. The court disagrees.
First, neither Ihenacho nor the other probationary physician's assistant was fired in response to the first failure to respond. The other physician's assistant was told he would be fired after the first incident, but the warden later changed the action to what amounted to a final warning. Similarly, Ihenacho was not fired for the first failure to respond. When the other physician's assistant again failed to respond on October 9 and 10, 1994, his employment ended for that reason, although by resignation in lieu of termination.
Second, Warden Clark testified that he viewed the other physician's assistant in a somewhat less negative light because he was away from the facility when the prison attempted to contact him. In contrast, Ihenacho failed to respond to calls for medical assistance when he was on-duty at the prison, which Clark considered a more serious offense. Ihenacho has not offered any evidence undermining the honesty of Clark's view on that question.
In any event, like Ihenacho, the other physician's assistant received performance log notations and ultimately lost his job because of his failure to respond appropriately to calls for assistance. This evidence is consistent with Clark's testimony that he cannot tolerate an employee's failure to respond appropriately to calls for emergency medical assistance.
The fact that the other physician's assistant was allowed to resign is not probative of pretext. See Bahl v. Royal Indemnity Company, 115 F.3d 1283, 1293 (7th Cir. 1997) (citation omitted) (discharged plaintiff could not demonstrate pretext as a matter of law where co-worker was allowed to resign for similar performance problem; "the comparatively minimal difference in treatment accorded the two individuals" was inadequate to raise an inference of discrimination). Moreover, Ihenacho has not disputed defendant's assertions that Ihenacho never requested the opportunity to speak with Clark about his discharge, and that Ihenacho would have been permitted to resign if he had asked.
On this record, the prison's treatment of the other physician's assistant would not allow a reasonable jury to find that the proffered reason for Ihenacho's discharge was a lie or phony reason. See Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) (pretext "means a lie, specifically a phony reason for some action"). In fact, the undisputed evidence shows remarkably similar and consistent treatment of the two individuals.
There is no other evidence that would support a finding of pretext. The undisputed evidence shows a factual basis for the defendant's decision to fire Ihenacho. Clark testified that he decided to discharge Ihenacho because he failed to respond to medical emergencies on two occasions. Even if the court assumes Ihenacho could prove that Clark made his decision based on an erroneous view of the facts, the record still shows that Clark based his decision on facts reported to him (directly and indirectly) by DeWalt, Rollins, and O'Neal. Ihenacho cannot prove pretext by questioning the adequacy or accuracy of the investigation into his conduct. See Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1031 (7th Cir. 1998) (affirming summary judgment for employer where plaintiff contended that employer should have exercised more "due diligence" to confirm whether three managers' assessment of him was accurate), citing Rand v. CF Indus., Inc., 42 F.3d 1139, 1145 (7th Cir. 1994) (if employer consults with a few key people and concludes plaintiff must be fired, that is enough; plaintiff cannot prove pretext by arguing that the employer should have questioned more executives before reaching a decision).
In addition, there is no evidence that Clark did not honestly believe that Ihenacho failed to respond to calls for assistance appropriately. See Wade v. Lerner New York, Inc., 243 F.3d 319, 323 (7th Cir. 2001) (where store manager made decision to discipline employee based on supervisor's report that plaintiff arrived late, the relevant inquiry was whether the decision-maker honestly believed that plaintiff was late; plaintiff's assertion that she arrived on time did not create a disputed fact question on pretext); Richter, 42 F.3d at 1145 (pretext inquiry focuses on the honesty of the employer's decision, not the wisdom of it). Without such evidence, Ihenacho's discharge claim fails as a matter of law.
B. Ihenacho's Claims of Discriminatory Disciplinary Actions and Performance Evaluations
The court has not relied on defendant's "same actor" argument, which often provides a useful argument for employers, but which is "unlikely to be dispositive in very many cases," especially on summary judgment. Johnson v. Zema Systems Corp., 170 F.3d 734, 744-45 (7th Cir. 1999) (reversing in relevant part a grant of summary judgment in favor of employer).
Defendant also moved for summary judgment on Ihenacho's claims of discriminatory disciplinary actions and performance evaluations on three grounds. First, defendant argued that any such race discrimination claims were barred by a class-action settlement of pattern and practice claims against the Bureau of Prisons. Second, defendant contended that Ihenacho's claims were time-barred. Third, on the merits, defendant argued that the claims failed as a matter of law because Ihenacho could not prove (1) adverse employment action; (2) more favorable treatment of similarly-situated white employees; or (3) pretext. Ihenacho did not respond to this portion of defendant's summary judgment motion, except to argue that the claims were not barred by the class action settlement. In his reply brief, defendant then abandoned the defense based on the settlement.
Because Ihenacho did not respond to the other grounds for defendant's summary judgment motion on Counts III and IV of his complaint, the court considers the motion unopposed on those grounds. Summary judgment on those counts is appropriate for the other reasons set forth in defendant's motion papers.
Conclusion
Plaintiff Ihenacho's Title VII claims of race and national origin discrimination based on his discharge fail as a matter of law because he has failed to produce evidence that the stated reason for his firing was a false pretext. Ihenacho has not opposed the entry of summary judgment on the other discrimination claims in his complaint. The court therefore GRANTS summary judgment to defendant on all claims in Ihenacho's complaint. Final judgment for the defendant will be entered.
So ordered.