Opinion
No. 99 CV 4963
October 25, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Camellio Linclon filed a complaint against defendant ABN AMRO North America, Inc. ("ABN"), alleging violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (a)(1), et seq., by discriminating against him in the terms of his employment on the basis of his race and retaliation for complaining of the alleged discrimination. ABN filed a motion for summary judgment. Plaintiff responded to defendant's Local Rule 56.1(a) statement of uncontested facts with many conclusory statements, which lacked support in the record. Plaintiff also failed to submit his own version of uncontested facts with citations to the record, as required by Local Rule 56.1(b). In lieu of the required statement, plaintiff submitted an affidavit reciting his own version of events without citation to the record, much of which contradicted his previous deposition statements. As a result, plaintiff has failed to create a genuine dispute of material fact that he suffered any adverse employment action, or that ABN's reasons for the employment actions it has taken were a pretext for discrimination. Based upon the undisputed material facts contained in the record, ABN's motion for summary judgment is GRANTED.
STATEMENT OF FACTS
The following statement of facts comes from defendant's Local Rule 56.1(a) statement of material facts and accompanying exhibits, as well as plaintiffs submission.
The relevant facts are explained in greater detail in the analysis section, but the central facts to the parties' dispute are as follows. Plaintiff has been employed by defendant ABN, a full service banking corporation, since 1984. In 1994, plaintiff was promoted to the position of Team Leader. Prior to the time he held that position, plaintiff did some training, but did not officially hold a management position. After his promotion, plaintiff had supervisory responsibilities over a staff of five to eight nonexempt employees. Plaintiffs duties included retail support and human resources duties as the chairperson of a promotion committee which recommended persons for promotion to higher management. Plaintiff never worked for the Human Resources Department or had "human resources" in his title, however.
Plaintiff "disputes" these facts, stating that he had managerial authority prior to 1994 and that he was responsible for over 100 employees. However, plaintiff supported his denial with only his self-serving and unsupported affidavit. As such, the defendant's facts are deemed admitted. Local Gen. R. 56.1(b)(3)(B); Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 870 n. 3 (7th Cir. 2000).
In August 1996, plaintiff was promoted to Customer Service Senior Team Leader. Plaintiff was later officially promoted to "Operations Officer," a corporate designation for a first level officer within the company. The position was also known as Team Leader II
Pursuant to a company reorganization, plaintiff worked in the Customer Service Department, a sub-section of the Direct Banking Department. Plaintiff does not know the number of employees in the Direct Banking Department, or the names or functions of all the departments within Direct Banking.
Plaintiff claims that he was passed over for three positions within the Direct Banking Department in favor of other employees: Quality Manager, Diversity Manager, and Online Manager. The duties of the Quality Manger included overseeing the entire Direct Banking Department with an emphasis on human relations, hiring, training, and creating job descriptions, goals, and standards. All formal training is provided by the Quality Department. In contrast, the only training plaintiff performs is informal, on-the-job coaching, and he has never supervised any trainers. Plaintiff also does not know the scope of the duties of managers within the various departments, including the "Quality" Manager. The duties of the Online Manager were customer service, overseeing maintenance of the entire bank, and fulfillment and enrollment duties relating to conversions and installations of ATMs and Home Banking. Plaintiff had worked in Online Banking, but his responsibilities in that department related only to customer service. Plaintiff concedes that he knew nothing about the qualifications for the position of the person who was hired to be the Online Manager. After that employee left the bank, plaintiff did not apply for the position of Online Manager.
Plaintiff now admits that he is not as qualified the person hired as Diversity Manager, and did not argue this position in his response to the summary judgment motion. Accordingly, that position is no longer at issue in this litigation. See Payne v. Milwaukee County, 146 F.3d 430, 434 (7th Cir. 1998) (plaintiff failed to present a prima facie case of failure to promote where he did not establish that he was qualified for the position or that the promoted employee was not more qualified than he was).
Defendant has an Educational Assistance Program ("EAP") which provides tuition assistance to qualified employees in qualified educational programs. One such program is the University of Chicago Executive MBA program ("the Chicago Program"). Before applying to the Chicago program through the EAP, employees are required to get sponsorship from various members of the management. However, applicants may also apply to the program without company sponsorship, and the program does not favor applicants with company sponsorship. The program is designed for executives who are, or will be in the near future, at a seniority level of at least vice president. Plaintiff requested sponsorship for the Chicago program in March of 1998, but was not eligible because he did not hold an officer title of at least vice president. The only two employees sponsored for the Chicago program between 1997 and 1999 were both vice presidents. Plaintiff nevertheless applied individually to the Chicago program for the Fall 1998 term, but was turned down because he did not compare favorably to the applicant pool for Fall of 1998.
In May 1998, plaintiff requested vacation time. His supervisor initially denied the request. stating that other people had already requested that same time off. Plaintiff then found the company's vacation schedule, and pointed out that no other Team Leaders were slated to take vacation time at the same time he had requested. His supervisor then allowed the vacation time, but asked if plaintiff would set up and conduct two conference calls while he was away, a task the supervisor expected would take a couple of hours. Plaintiff was enraged and "stressed," but never requested that the calls be canceled or told his supervisor that he did not want to do the calls. Nevertheless, plaintiff canceled his vacation and reported to work at the time he was scheduled for vacation. Plaintiff indicated his dissatisfaction with the way he was treated with regard to the vacation, and the calls were reassigned to another employee. Plaintiff was not disciplined for failing to arrange or conduct the calls.
Also in May or June of 1998, Team Leaders were informed in a meeting that they were no longer authorized to send employees to the Taste of Chicago and submit incurred expenses for the reimbursement. Plaintiff was unaware of the decision, and was not in attendance at the meeting where the issue was discussed. In the summer of 1998, plaintiff authorized four employees to submit expenditures for reimbursement for lunch at the Taste of Chicago. Approximately one month later, two of plaintiff s superiors discussed the expenses with him, and informed him of the policy against such expenditures. The employees were nevertheless reimbursed for the lunches.
Plaintiff also claims that the title on his business card was discriminatory. Plaintiff requested that the title "Operations Officer" be put on his card. Instead, his card stated "Team Leader, Officer." Plaintiff wanted the card to indicate "Team Leader II," his official title. Plaintiff felt that the incident "cost him a lot of spirit," but he does not use the business cards and keeps them in his credenza. A Caucasian Team Leader II also has cards that read "Team Leader," not "Team leader II."
At his deposition, plaintiff stated that he has never heard any member of the ABN management say anything racially derogatory. However, plaintiff now claims in his affidavit that a member of upper-level management once made a comment about customers in one of the bank's branch offices where (according to plaintiff's affidavit) the customers are predominantly African-American. Plaintiff claims that the manager stated that the customers do not expect good service because they do not have much money and are willing to stand in line for as long as an hour.
As explained in detail later, plaintiff did not point to this alleged comment when he was asked at his deposition whether he had ever heard any member of ANB's management make any racially derogatory statements. Plaintiff only "remembered" the incident in the affidavit he filed along with his response to the motion for summary judgment.
STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 106 S. Ct, 2548, 2553 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.Under Local Rule 56.1(b)(3), a party opposing a motion filed pursuant to Federal Rule of Civil Procedure 56 shall serve and file 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. Local R. 56.1(b)(3)(b). All material facts set forth in the defendant's 56.1(a) statement of material facts will be deemed to be admitted unless controverted by the statement of the opposing party. Local R. 56.1(b)(c)(B).
ANALYSIS
Plaintiff claims that ABN discriminated against him in failing to promote him to three different positions over the course of his employment. Plaintiff further alleges discrimination in ANB's refusal to sponsor him for the Chicago program, racial harassment, and retaliation for complaining of alleged discrimination. Title VII provides, in relevant part, that it is unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2 (a)(1).
Plaintiff has no direct proof of discrimination, and thus proceeds under the McDonnell Douglas indirect burden-shifting approach. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Under this method, a Title VII plaintiff has the burden of establishing a prima facie case of unlawful discrimination. To establish a prima facie claim of failure to promote, plaintiff had the burden of showing that: (1) he applied for a promotion; (2) he was entitled to the promotion; and (3) the individual promoted had the same or lesser qualifications. Id. at 802, 93 S.Ct. at 1824. Plaintiff has not met this burden because he has not pointed to a single piece of evidence suggesting that he was qualified for the positions or that the individuals promoted to the positions had the same or lesser qualifications. For the first position, Quality Manager, plaintiff admits that the person hired was considered "highly qualified" for the position, and that the person hired was responsible for all of the Direct Banking Department's human resource matters and training. Plaintiff further admits that had never been part of the Human Resources Department nor had official responsibility for human resources, and that his human resources experience is limited to serving on two committees which provided input on promotions to management. Plaintiff neither argues nor states facts which suggest that he was qualified for the specific job of Quality Manager, much less that he was more qualified than the person hired. As for the Diversity Manager position, plaintiff admits that he is not more qualified for the person hired, and provides no evidence to suggest that he was at all qualified for the position. Finally, plaintiff "denies" that the person hired for the Online Banking Manager position was more qualified than itself, but supports the assertion with only a cite to his self-serving affidavit. That affidavit, in turn, provides no support for the assertion that plaintiff was qualified for the position at all, much less than he was more qualified than the person hired. Self-serving facts without support in the record or which lack an evidentiary foundation will not render summary judgment inappropriate. U.S. for and on Behalf of Small Business Admin. v. Torres, 142 F.3d 962, 967 (7th Cir. 1998). As such, plaintiff cannot state a prima facie case of discrimination on the failure to promote claims because he has presented no evidence that he was qualified for the positions, or that he was more qualified than the person hired for the positions. See Payne v. Milwaukee County, 146 F.3d 430, 434 (7th Cir. 1998).
Plaintiff also claims that he was discriminated against in defendant's failure to sponsor him for the Chicago program. In order to state a prima fade case of discrimination, a plaintiff must show some adverse employment action. See Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994). It is doubtful whether declining sponsorship for the Chicago program could be considered an "adverse employment action" within the meaning of Title VII. See Smart v. Ball State University, 89 F.3d 437, 440 (7th Cir. 1996). However, even if the action were considered adverse, defendant has offered a non-discriminatory reason for the decision not to sponsor plaintiff, and plaintiff has not rebutted that decision. Hiatt v. Rockwell Int'l Corp., 26 F.3d 761, 768 (7th Cir. 1994) ("If the plaintiff establishes her prima facie case, the employer must articulate a lawful, non-discriminatory reason for the adverse action. Once the employer satisfies this burden of production, the burden remains with the plaintiff to show that the employer's purported reasons are no more than a pretext.").
Defendant explains, with support in the record, that the Chicago program is designed for executives who are, or will be taking on in the near future, senior management roles in the organization, and who hold a management title of at least vice president. Plaintiff does not and has not held a vice president position, and has offered no evidence to suggest that the criteria for sponsorship in the program is a pretext for race discrimination. Plaintiff, again, "denies" that he conceded at his deposition that he has no knowledge of defendant sponsoring an employee who was not at least at the level of vice president in the organization, but does not provide any support in the record. As such, the fact is deemed admitted. Furthermore, plaintiff admitted in his deposition that he has no facts to support his belief that sponsorship in the program is based on race, stating "you have to be African American to understand," and "it can't be explained in words." Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000) ("In total, [plaintiffs] evidence . . . amounts to little more than conclusory statements, indications of opinion or speculation which do not produce a genuine issue for trial under Rule 56 (c).")
Plaintiff also claims racial harassment, but fails to point to a single instance in which he was harassed on the basis of his race. To state a claim for racial harassment under Title VII. the plaintiff must show that the harassment was objectively "sufficiently severe or pervasive as to alter the conditions of the victim's employment and to create an abusive working atmosphere." Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 673 (7th Cir. 1993). Whether such an environment exists is a question of law. Hardin v. S.C. Johnson Son. Inc., 167 F.3d 340, 345 (7th Cir. 1999). The conduct complained of need not have been explicitly racial in order to create a hostile environment, but it must have a racial character or purpose to support a Title VII claim. See id. Plaintiff admitted at his deposition that he had never heard anyone at the bank say anything racially derogatory. In his affidavit, which was submitted after defendant's motion for summary judgment was filed, plaintiff now claims a single allegedly race-based comment made by a member of senior management that customers at a branch of the bank in an area which plaintiff states is predominately African-American do not expect good service because they do not have much money and are willing to stand in line for a long time. Even if this court were to consider the comment, for which plaintiff has not provided proper evidentiary foundation, it is not sufficient to state a claim for racial harassment. The alleged comment was clearly not "sufficiently severe or pervasive as to alter the conditions of [plaintiff's] employment," as required to state a claim under Title VII. The remainder of allegedly hostile acts of which plaintiff complains, including the manner in which promotions were handled, disputes over vacation leave, the wording on business cards, and reimbursement for the Taste of Chicago lunch, had no racial character or purpose and were not objectively severe or pervasive, and thus cannot support a discriminatory hostile environment claim.
Plaintiff also originally stated a claim for retaliation for complaining of discrimination, but did not respond to defendant's arguments on the issue. Accordingly, the retaliation claim has been waived. However, even if it had not been waived, plaintiff failed to create a genuine dispute of material fact on the retaliation claim. In order state a claim for retaliation, plaintiff must show that: 1) he engaged in a protected activity under Title VII; 2) he suffered an adverse employment action subsequent to his participation; and 3) there exists a causal connection between the adverse employment action and his participation in protected activity. Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 708 (7th Cir. 1995). Plaintiff has failed to come forth with any evidence that he suffered an adverse employment action or that there was a causal connection between his discrimination complaint and any allegedly "adverse" action. "[A]dverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well." Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987). However, while "adverse employment actions extend beyond readily quantifiable tosses, not everything that makes an employee unhappy is an actionable adverse action. 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 v. Ball State University, 89 F.3d 437, 440 (7th Cir. 1996) (summarizing adverse and non-adverse employment actions). Here, plaintiff has alleged no more than petty disagreements with his employer. He has not alleged a single incident which resulted in the loss of monetary benefit or position, with the exception of the promotion and sponsorship claims addressed and rejected above. The remainder of plaintiffs claims did not result in any discipline, change of title or responsibilities, or other objectively humiliating treatment. Moreover, plaintiff has presented no evidence that the alleged mistreatment was a result his discrimination complaints, relying instead on his own "gut" understanding of the incidents. Such "evidence" is insufficient to create a genuine dispute of material fact under Title VII. Without supporting facts or explanatory details, a plaintiffs perception" is merely speculation regarding the employer's motives and cannot defeat summary judgment. Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000) (plaintiffs conclusory statements, opinion, and speculation do not produce a genuine issue for trial under Rule 56(c).").
CONCLUSION
Because plaintiff has not created a genuine dispute that he was discriminated against on the basis of his race or retaliated against for complaining of discrimination, ABN's motion for summary judgment is GRANTED. This case is dismissed in its entirety.