Summary
holding that Ulane remains good law after Price Waterhouse
Summary of this case from Tronetti v. TLC Healthnet Lakeshore HospitalOpinion
CAUSE NO. IP 02-0320-C H/K.
June 6, 2003.
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Plaintiff John Sweet was fired from his job as a licensed practical nurse for defendant Mulberry Lutheran Home. Sweet contends that Mulberry violated Title VII of the Civil Rights Act of 1964 in two ways: (1) by firing him because he intended to change his sex from male to female, and (2) by filing a complaint with state nursing authorities to retaliate against him for complaining to the EEOC about his firing. Mulberry has moved for summary judgment, which the court grants. First, controlling precedent of the Seventh Circuit holds that Title VII does not prohibit discrimination on the basis of a person's intention to change sex. Second, the undisputed evidence shows that Mulberry fired him because its believed he had abused patients, not because of his intentions regarding his sex or his complaints. Third, the undisputed evidence shows that the person who filed the complaint against Sweet did not know of his EEOC charge and therefore could not have been motivated by a desire to retaliate against him for that conduct. The court also dismisses Sweet's state law claims without prejudice because all federal claims are being dismissed before trial.
Summary judgment is warranted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To defeat a properly supported motion for summary judgment, the party opposing summary judgment must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, quoting Fed.R.Civ.P. 56(e). The court considers the record evidence in the light reasonably most favorable to the non-moving party, in this case plaintiff Sweet.
I. Undisputed Facts
Mulberry is a long-term health care facility located in Mulberry, Indiana. At the times relevant to Sweet's claims, Annette Galvin was employed as Director of Nursing. As part of her duties, Galvin supervised Sweet, who was employed as a licensed practical nurse at Mulberry.
In September 2001, Galvin became aware of three incidents that formed the basis of the decision to terminate Sweet's employment. All three incidents occurred during Sweet's shifts on September 11 and 12, 2001. Sweet worked his regularly scheduled second shift on September 11, 2001. At Galvin's request, Sweet agreed to stay on for the night shift as a supervisor to fill in for an unexpected absence. In the first incident, a Mulberry resident was left outside until approximately 2:45 a.m. on the morning of September 12, 2001. In the second incident, Sweet violated Mulberry policy by failing to assess a resident who had fallen from bed. In the third incident, Sweet refused to change a resident's portable oxygen tank. These incidents each reflected substandard practice and poor judgment. Mulberry has always contended that these incidents were the reason it fired Sweet.
After Sweet was fired, Galvin prepared and filed a complaint against Sweet with the Indiana Health Professions Bureau. Galvin took this step because of her obligation as a Registered Nurse to report instances of potential patient abuse and neglect based on the three incidents described in the preceding paragraph. At the time Galvin filed that complaint with the state agency, Galvin was unaware that Sweet had filed a Charge of Discrimination with the Equal Employment Opportunity Commission.
Sweet filed two complaints with the EEOC. The first complaint was filed on October 12, 2001 alleging that his firing amounted to discrimination on the basis of sex because Mulberry learned of his planned sex change. The second complaint was filed on November 13, 2001, alleging that Mulberry had retaliated against Sweet for filing the first EEOC complaint by filing Galvin's complaint with the state nursing agency.
II. Title VII Claim Based on Intent to Change Sex
Title VII makes it an unlawful employment practice to discriminate against an individual on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). As Sweet testified in his deposition, his claim of discrimination is that he was terminated because of his intent to change his sex. The Seventh Circuit has rejected similar claims, and its decisions require summary judgment in favor of Mulberry on this claim.
In Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 984), a male airline pilot was fired when, following sex reassignment surgery, she attempted to return to work as a woman. The district court had found in favor of the plaintiff, but the Seventh Circuit reversed. The Seventh Circuit considered whether the word "sex" in Title VII meant not only biological sex, i.e., male or female, but also "sexual preference" and "sexual identity." The Seventh Circuit concluded that sex meant "biological sex." The Ulane court stated:
The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be a female, or a person born with a female body who believes herself to be male; a prohibition against discrimination based on an individual's sex is not synonymous with a prohibition based on an individual's sexual identity disorder or discontent with the sex into which they were born. The dearth of legislative history on section 2000e-2(a)(1) strongly reinforces the view that the section means nothing more than the plain language implies.742 F.2d at 1085. Under Ulane, therefore, discrimination on the basis of sex means discrimination on the basis of the plaintiff's biological sex, not sexual orientation or sexual identity, including an intention to change sex.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that discrimination on the basis of sex or gender stereotyping was discrimination because of "sex" within the meaning of Title VII. It could be argued, therefore, that the narrow approach of Ulane — that "sex" as used in Title VII meant biological sex and nothing more — is no longer viable. But this is not the case:
Long after Price Waterhouse was decided, courts have continued to hold that discrimination on the basis of sexual preference or orientation is not actionable under Title VII because it is not discrimination based on a person's "sex."Oiler v. Winn-Dixie Louisiana, Inc., 2002 WL 31098541, *5 n. 59 (E.D. La. Sept. 16, 2002) (collecting cases). In Oiler, for example, the plaintiff was terminated because he was a man with a sexual or gender identity disorder who publicly disguised himself as a woman, and was held outside a protected class under Title VII.
One of the decisions cited in Oiler was Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000), which was also decided after Price Waterhouse. In Spearman, the Seventh Circuit affirmed summary judgment for an employer where a male homosexual employee alleged he had been sexually harassed by other male workers who taunted his feminine behavior. The Seventh Circuit adhered to the reasoning of Ulane:
Congress intended the term "sex" to mean "biological male or biological female," and not one's sexuality or sexual orientation. [citing Ulane]. Therefore, harassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlawful employment practice under Title VII.231 F.3d at 1084. Spearman thus shows the continuing vitality of the rule in Ulane in the Seventh Circuit, and though Price Waterhouse sets a rule that bars discrimination on the basis of sex stereotypes, that was not the nature of Sweet's claim in this case.
For purposes of its motion for summary judgment, Mulberry does not concede that Sweet's cross-dressing or intended sex change played any part in its decision to fire him. Sweet argues otherwise but has offered no evidence to support his claim.
Accordingly, Sweet's intent to change his sex does not support a claim of sex discrimination under Title VII because that intended behavior did not place him within the class of persons protected under Title VII from discrimination based on sex.
Mulberry would still be entitled to summary judgment on this claim even if Sweet's theory were legally actionable. Sweet could prove his discrimination claim under Title VII either by presenting direct evidence of prohibited discrimination or by relying on the indirect, "burden-shifting" method of proof outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Direct evidence is evidence which, if believed by the trier of fact, will prove the particular fact in question without reliance upon presumption or inference. Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). The direct evidence must show that the defendant said or did something indicating discriminatory animus with regard to the specific employment decision in question. Id. Sweet has not offered direct evidence of discrimination based on his intent to change his sex.
Under the indirect method of proof in McDonnell Douglas, the Supreme Court "established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory treatment cases." St Mary's Honor Ctr., 509 U.S. at 506. The test consists of three steps. First, the plaintiff must come forward with evidence of a prima facie case of discrimination, meaning facts which, if not otherwise explained, would support an inference of discrimination. Second, the defendant may respond by stating a legitimate, non-discriminatory reason for the adverse employment action. Finally, if a legitimate, non-discriminatory reason is offered, the plaintiff must come forward with evidence that would allow a reasonable trier of fact to find that the stated reason is not the true one, but only a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802-04; DeLoach v. Infinity Broadcasting, 164 F.3d 398, 401 (7th Cir. 1999).
To establish a prima facie case of sex discrimination under McDonnell Douglas, Sweet must come forward with evidence that: (1) he was a member of a protected group, (2) he was doing the job well enough to meet his employer's legitimate expectations, (3) despite his adequate job performance, he was subjected to an adverse employment action, and (4) he was treated less favorably than similarly situated employees who were not planning to change their gender. See Markel v. Bd. of Regents of Univ. of Wisconsin System, 276 F.3d 906, 911 (7th Cir. 2002); Bragg v. Navistar Intern. Transp. Corp., 164 F.3d 373, 376 (7th Cir. 1998).
Even if the court assumes that Sweet was a member of a protected group and has otherwise met the elements of a prima facie case, Mulberry has offered a legitimate, non-discriminatory reason for firing him: abuse of patients. Sweet has no evidence that this reason was pretext for discrimination. This mode of analysis is occasionally undertaken because the issue of satisfactory job performance, which lies at the heart of many employment cases, must be analyzed in detail at both stages of the McDonnell Douglas test and "it is therefore simpler to run through that analysis only once." Simmons v. Chicago Bd. of Education, 289 F.3d 488, 492 (7th Cir. 2002), citing Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001).
To avoid summary judgment on the issue of pretext, Sweet must come forward with evidence that would allow a reasonable trier of fact to find that Mulberry's proffered reason for firing him was a lie. Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000); Rand v. CF Industries, Inc., 42 F.3d 1139, 1145 (7th Cir. 1994). Evidence that an employer made an erroneous decision or used poor business judgment is not sufficient to establish pretext; the issue is the honesty of the employer's stated reason. See Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1031-32 (7th Cir. 1998).
Mulberry contends that it terminated Sweet's employment because of the three instances of abusive and inadequate care described above. Such actions are obviously a legitimate and non-discriminatory reason for firing a licensed practical nurse. Sweet disagrees with Mulberry's view of the facts, but he has not presented actual evidence disputing those incidents. Sweet's response to Mulberry's argument on this point suffers from two deficiencies. First, his response is not presented in the form of evidence, even though Sweet was notified of that requirement of Rule 56(e) of the Federal Rules of Civil Procedure and even though the court gave him an extra opportunity to meet that requirement. See Gilty v. Village of Oak Park, 919 F.2d 1247, 1255 n. 13 (7th Cir. 1990) (explaining that statements that are "neither notarized nor made under penalty of perjury [do] not comply with Rule 56(e) . . . As such, we can simply ignore them."); Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985) ("When a party seeks to offer evidence through other exhibits, they must be identified by affidavit or otherwise made admissible in evidence."). Second, the content of his response (even if it had been presented as evidence) is nothing more than Sweet's own assessment of his job performance. Such assessments are not sufficient to establish a genuine issue of fact as to the honesty of Mulberry's stated reason for firing him. Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1114 (7th Cir. 1998) ("even if [a plaintiff's] personal appraisal contains true statements about his accomplishments, [an employer is] entitled to determine that the deficiencies in his performance outweighed such accomplishments").
In sum, therefore, Sweet's claim of discrimination is not cognizable here. Even if it were, he has not shown direct evidence of discrimination or that Mulberry's stated reason for firing him was only a pretext for discrimination.
III. Claim of Retaliation
In addition to prohibiting certain forms of discrimination in the workplace, Title VII provides that an employer may not take an adverse employment action or discriminate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Sweet alleges that Mulberry engaged in unlawful retaliation when, after he filed his EEOC charge of discriminatory firing, Mulberry reported the incidents of patient abuse to the state licensing agency.
Mulberry argues first that it is entitled to summary judgment because Sweet did not oppose conduct prohibited by Title VII. Mulberry relies on Hamner v. St. Vincent Hospital and Health Care Center, 224 F.3d 701, 706-07 (7th Cir. 2000), which held that a homosexual employee's complaints to management about harassment by male co-workers did not cover any practice prohibited by Title VII, so that his complaints had not "opposed any practice made an unlawful employment practice by this subchapter." His complaints therefore could not support a retaliation claim, the Seventh Circuit concluded, and affirmed summary judgment for the employer.
By its plain terms, however, the retaliation provision of Title VII also outlaws retaliation against a person for simply filing a charge of discrimination with the EEOC. Hamner did not involve an EEOC charge. Sweet's action of filing an EEOC charge about what he honestly believed was unlawful discrimination falls squarely within the terms of 42 U.S.C. § 2000e-3(a). See Clark County School Dist. v. Breeden, 532 U.S. 268, 271 (2001) (distinguishing between two prongs of retaliation statute, and rejecting claim based on filing of EEOC charge on grounds of causation, not because charge was actually unreasonable); see also Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (employee need not prevail on underlying claim to prove retaliation; all that is required is reasonable, good faith belief that practice violated Title VII).
Nevertheless, Mulberry is entitled to summary judgment on the retaliation claim because a reasonable trier of fact could not find that Galvin filed the complaint in retaliation for Sweet's filing of his EEOC charge. Sweet has produced no direct evidence that Galvin filed the licensing complaint for retaliatory reasons. Sweet also has not produced circumstantial evidence that would support an inference of retaliatory intent. Sweet has not provided any evidence that he, and not any similarly-situated employee who did not file an EEOC complaint, was subjected to adverse action. What's more, Mulberry has shown without contradiction from Sweet that Galvin had a legitimate reason for filing the licensing complaint, and that Galvin was not even aware of the first EEOC filing when she presented the licensing complaint. If Galvin did not know about the EEOC charge, then it could not have motivated her decision. Alexander v. Wisconsin Dept. of Health and Family Services, 263 F.3d 673, 86 (7th Cir. 2001) (plaintiff's inability to provide evidence that any of the actors involved in his suspension had any knowledge of his complaint before his suspension, prevents an inference of pretext to be drawn from the timing of his suspension and eventual termination); see generally Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002) (explaining standard for summary judgment as applied to retaliation claims). Accordingly, Mulberry's motion for summary judgment must be granted as to Sweet's claim of retaliation.
IV. Pendent State Law Claims
Sweet's complaint includes claims under Indiana state law for defamation and wrongful termination. This court has jurisdiction over such claims by virtue of 28 U.S.C. § 1367(a), which provides that, in any action in which the district courts "have original jurisdiction," they may exercise supplemental jurisdiction over state law claims related to the federal claim. Pursuant to 28 U.S.C. § 1367(a), "judicial power to hear both state and federal claims exists where the federal claim has sufficient substance to confer subject matter jurisdiction on the court, and the state and federal claims derive from a common nucleus of operative facts." Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir. 1995), citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966). When a district court dismisses the claims over which it had original jurisdiction, it has discretion either to retain jurisdiction over the supplemental claims or to dismiss them. Kennedy v. Schoenberg, Fisher Newman, Ltd., 140 F.3d 716, 717 (7th Cir. 1998).
Discretion notwithstanding, its "well established that if federal claims are dismissed before trial, the federal district courts should generally dismiss the state law claims as well." Vukadinovich v. Board of Sch. Trustees of the Michigan City Area Schs., 978 F.2d 403, 415 (7th Cir. 1992). There is no reason in this action why the general rule should not be followed. The court will relinquish jurisdiction over the supplemental claims under Indiana law pursuant to § 1367(c).
V. Request to Amend Complaint to Add Claims
Sweet stated in his response to Mulberry's motion for summary judgment that, if Mulberry persists in its motion for summary judgment, he would like to amend his complaint by adding a claim for wrongful endangerment, presumably asserted under Indiana state law.
This sort of conditional request to amend pleadings only in the event of an adverse ruling on a motion is not appropriate. It disrupts the orderly development of the action and is untimely in any event. See Sanders v. Venture Stores, Inc., 56 F.3d 771, 773 (7th Cir. 1995). Apart from the question of timing, the content of the proposed additional claim shows it to be based on asserted violations of Indiana state law. As with the state law claims already pled, the court has no reason to exercise jurisdiction over the proposed new claim. Leave to amend the complaint is therefore denied.
VI. Conclusion
The undisputed evidence in this case shows that Sweet's behavior did not place him within the protection of Title VII, that Mulberry terminated Sweet's employment for a legitimate, non-discriminatory reason (poor quality of nursing care and/or supervision), and that there was no retaliation against Sweet through the subsequent filing of a licensing complaint with State authorities. Because the burden at this point rests with Sweet to "inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered," Liberles v. County of Cook, 709 F.3d 1122, 1126 (7th Cir. 1983), and because Sweet has not met his burden in these circumstances, Mulberry's motion for summary judgment must be granted. The dismissal of the federal claims shall be with prejudice, while the dismissal of the pendent state law claims shall be without prejudice, and Sweet's contingent request to amend his complaint by adding certain claims under state law is denied.
Final judgment shall be entered accordingly.
So ordered.
JUDGMENT
The court, having this day granted defendant's motion for summary judgment, it is hereby ORDERED, ADJUDGED, AND DECREED plaintiff John A. Sweet's claims under federal law against defendant Mulberry Lutheran Home are DISMISSED WITH PREJUDICE, and plaintiff John A. Sweet's claims arising under state law against defendant Mulberry Lutheran Home are DISMISSED WITHOUT PREJUDICE as the court relinquishes jurisdiction. The costs of this action are assessed against the plaintiff.