Opinion
CAUSE NO. IP99-1945-C-B/S
March 5, 2001.
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Paul Watkins ("Watkins"), alleges that Defendant, William J. Henderson, Postmaster General ("Postal Service"), discriminated against him on account of his race, retaliated against him for filing complaints of racial discrimination, and subjected him to a hostile work environment, all in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000 et seq., and either improperly denied him leave or retaliated against him for exercising rights protected by the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. The Postal Service responds that there are legitimate non-discriminatory reasons for each of the challenged employment actions, that the conduct of which Watkins complains does not rise to the level of a hostile work environment, that he was not eligible for leave under the FMLA and there is no evidence linking an adverse employment action to an exercise of rights under either Title VII or the FMLA. The Postal Service has filed a motion for summary judgment on all counts, pursuant to Federal Rule of Civil Procedure 56. For the reasons explicated below, we GRANT Defendant's motion for summary judgment.
Factual Background A. The Relevant Actors
Paul Watkins, an African-American male, began working for the Postal Service in 1979 as a part-time regular mail handler in the Indianapolis main downtown post office. Def.'s Statement of Mat. Facts ("Def.'s Facts") ¶¶ 1-2. In addition to his full-time mail handler position, Watkins was also a Reserve Deputy for the Marion County Sheriff's Department. Id. ¶¶ Prior to March of 1999, Watkins was supervised at the Post Office by John Hogue ("Hogue") and, after that date, by Terry Goodin ("Goodin"). Id. ¶¶ 18, 131. Hogue and Goodin reported to Elizabeth Sanford ("Sanford"), the Manager of Distribution Operations, who was in turn supervised by Jerry Buchanan ("Buchanan"), the Senior Manager of Distribution Operations. Id. ¶¶ 26-28. During 1998, Micros Berry ("Berry") was the downtown office's Acting Plant Manager. Id. ¶ 29.
B. Facts Surrounding Watkins Being Placed on Administrative Leave
Although Watkins complains about incidents of discrimination and retaliation going back to 1994, the allegations central to his complaint are detailed and complex, surrounding the period of time during which he was placed on administrative leave. We begin our lengthy factual recitation with that background.
In May of 1996, Watkins' "pay location" was changed, requiring him to work in the same location as Errol Coke ("Coke"). Pl.'s Resps. and Objections to Def.'s Statement of Mat. Facts ("Pl.'s Resp. to Def.'s Facts"), Pl.'s Statement of Additional Mat. Facts ("Pl.'s Add'l Facts") ¶¶ 174, 177; Def.'s Facts ¶ 3. Buchanan and Sanford were the individuals responsible for making this change: Sanford initiated the change and Buchanan approved it. Def.'s Reply to Pl.'s Additional Facts ("Def.'s Reply to Pl.'s Add'l Facts") ¶¶ 175-76. Watkins filed a complaint on October 23, 1996, alleging that Buchanan's decision to change Watkins' pay location was an act of discrimination because of Watkins' race and in retaliation for Watkins' prior complaints against him. Pl.'s Add'l Facts ¶ 174; Pl.'s Ex. 5, October 23, 1996, EEO Complaint.
Watkins had previously filed an Equal Employment Opportunity complaint in January of 1994 alleging that Buchanan had mistreated him by taking his name off of the "Overtime Desired List." Pl.'s Add'l Facts ¶¶ 167-68. Watkins filed a second complaint in February of 1995, alleging that Buchanan had ordered two persons in supervisory positions to follow Watkins around the Postal Center on September 23, 24, 1994. Pl.'s Add'l Facts ¶¶ 170-71. Watkins cites his deposition testimony to support these allegations, which includes comments made to him by other employees of the Postal Service that Buchanan had ordered them to follow Watkins. Id. ¶¶ 172-73. The Postal Service objects to Watkins' testimony about these statements as inadmissible hearsay and in any event Buchanan denies ordering anyone to follow Watkins. Def.'s Reply to Pl.'s Add'l Facts ¶¶ 171-73. Out-of-court declarations by non-supervisory co-employees are inadmissable hearsay, Fed.R.Evid. 801(d)(2), 802, and we will not consider Watkins' testimony about them on this motion. Moreover, as we discuss in footnote 15, there is no evidentiary basis for any Title VII claim based on these alleged activities.
Both Sanford and Buchanan were aware that Watkins and Coke had a personality conflict when they changed Watkins' pay location. Pl.'s Add'l Facts ¶ 177. However, Sanford testified that she did not think that it was a serious enough problem to warrant their separation. Def.'s Reply to Pl.'s Add'l Facts ¶ 177 (citing Deposition of Elizabeth Sanford ("Sanford Dep.") at 54-55).
While it appears that Watkins and Coke were friends prior to Watkins' change in pay location, their relationship degenerated after the two of them had a disagreement following a poker game that ended with Coke owing Watkins $250. Def.'s Facts ¶¶ 4-5, 7. Watkins does not make clear when this poker game occurred. He also testified that he and Coke thereafter argued over Coke's pattern of making comments about co-workers being homosexual, including Dennis Bryant, a friend of Watkins. Id. ¶¶ 10-13. According to Watkins, when he told Coke to stop picking on Bryant when Watkins was around, Coke responded by saying such things as "[y]ou always taking up [sic] for these fags." Id. ¶¶ 14-15. Watkins further stated that Coke made homophobic references to Watkins. Id. ¶ 17. Watkins apparently responded to Coke's immature taunts in kind, with statements such as "[w]ell, you always talking [sic] about guys looking at you in the bathroom and stuff like that. How do I know you're not gay?" Id. ¶ 16. Both Watkins and Coke complained to Hogue (their supervisor) of their disagreeable situation, with Coke telling Hogue that Watkins would walk past Coke, staring at him as he passed by. Id. ¶¶ 18-21. Not content with petty bickering, Coke at some point filed a restraining order against Watkins, which included a claim that Watkins had threatened to hit Coke with a steel pipe. Id. ¶ 22; Deposition of Paul Watkins ("Watkins Dep.") at 68.
Eventually, the situation between Watkins and Coke deteriorated to the point where Hogue had to bring in Sanford, his immediate supervisor, to help defuse things. Def.'s Facts ¶ 26. According to Watkins, "[The Post Office] think[s] [Coke] is one of the kind of guys that may go off in there and may do something. . . . So I guess they figure with the way I am and the way he is, there might be something. So that's when, I guess, they called us in and give [sic] the direct order." Watkins Dep. at 74. The parties agree that the Postal Service takes violence in the workplace very seriously and that during all times relevant to this case, notices were conspicuously posted informing employees that "acts or threats of violence by postal employees on duty and/or on postal property will not be tolerated and will result in appropriate disciplinary action." Def.'s Facts ¶ 31.
It is not clear precisely when Sanford first became involved in the ongoing disputes between Coke and Watkins, but on October 22, 1998, she contacted Acting Plant Manager Berry concerning the situation, thinking that it might become volatile. Id. ¶¶ 29-30. In response to those concerns, Berry arranged to meet with Coke and Watkins, as well as Sanford, acting Supervisor Braun Anderson, and Union Steward Greg Hill. Id. ¶ 32. At the first of two meetings (Watkins did not attend), Coke reiterated his complaint that Watkins had been "harassing him constantly, had called him a `sissy,' had talked about him to other employees, and had stared at him"; Coke maintained that he had done nothing to Watkins and just wanted to be left alone. Id. ¶¶ 33-36. "Based on Mr. Coke's past, [Berry] gave him a direct order not to have any contact with Mr. Watkins, which included verbal and/or physical [sic]. Mr. Coke said you do not have to worry about me." Id. ¶ 37; Def.'s Ex. 17, October 25, 1998, Memorandum of Micros Berry.
This same group next met with Watkins, outside of Coke's presence. Def.'s Facts ¶ 38. Watkins stated that the presence at this meeting of Berry, Sanford, Anderson and Hill suggested to him that the Postal Service considered the situation to be a serious matter. Id. ¶ 52. Berry told Watkins that he understood Watkins and Coke had some ongoing problems. Id. ¶ 39. Watkins also testified that Berry stated to him that he (Watkins) was "taking a lot of FMLA," at which point Watkins told him that he did not see a connection between his FMLA leave and the current situation. Watkins Dep. at 84, 88. Watkins testified that he "believes" that in August he had taken some amount of FMLA leave, approximately two months prior to the meeting with Berry, but no evidence of such leave has been provided to us beyond Watkins' own uncorroborated testimony. Id. ¶ 42. Repeating what Berry had told Coke, Berry informed Watkins that he was issuing a direct order that the two men were not to talk to one another or to anyone else about each other. Id. ¶ 43. Watkins understood the meaning of this direct order to be that he, Watkins, could not talk to or about Coke with anyone in the workplace, though Watkins told Berry that he did not agree with the order since it did not directly pertain to Watkins' job performance. Id. ¶¶ 44-47; Watkins Dep. at 85, 86. Berry then brought Coke and Watkins together and asked them again if each understood the order and the fact that if either of them failed to follow it, disciplinary action could occur, which could include removal of the offender from the Postal Service. Def.'s Facts ¶¶ 49-50. Watkins indicated that he understood. Id. ¶ 51.
On November 3, 1998, nine days after his meeting with Berry, Watkins received a petition for a protective order filed for by Coke against him, whereupon, despite Berry's direct order, Watkins sought advice from Diane Williams, the mail handler union president. Williams told Watkins about an incident that had occurred between Coke and an unnamed Postal Service mechanic, suggesting that Watkins "find out who the mechanic was and ask him about the incident with Coke, and when you go to court with the restraining order, take that information with you." Id. ¶¶ 53-55.
Based on this advice, on November 3, 1998, Watkins sought out Paul Myers, a maintenance mechanic with whom Watkins had previously spoken and whom Watkins thought would know about the incident. Id. ¶¶ 56-57. Watkins asked Myers about the incident between a mechanic and an "AFCS employee." Id. ¶ 58. Although at the time he spoke with Myers, Watkins knew that Coke was involved, he did not mention Coke's name. Id. ¶ 59. Myers told Watkins about an incident that occurred between Coke and Jim Burn, expressly referencing both individuals by name. Id. ¶¶ 60-62. Watkins allegedly told Myers that "they were doing a `little investigation' and asked what Jim Burn looked like and what area he was working in that evening." Id. ¶ 65. Myers later provided a written statement to Sanford stating that he was unsure of Watkins' motive but that he sensed that Jim Burn was in some danger. Id. ¶ 63. Myers also testified that although Watkins never mentioned the Marion County Sheriff's Department, when Watkins said "they" were investigating the incident, Myers assumed that "they" referred to the Sheriff's department because of Watkins' position there as a Reserve Deputy. Myers Aff. ¶ 6. Watkins eventually sought out Jim Burn and asked him about the incident with Coke. Def.'s Facts ¶ 68.
Myers was initially reluctant to provide a written statement to Sanford about his discussion with Watkins, agreeing only to providing an oral report of the conversation. It was not until Sanford made repeated efforts to obtain a written statement that Myers reluctantly provided a one. Def.'s Facts ¶¶ 75-77; Pl.'s Resp. to Def.'s Facts ¶ 63 (citing Affidavit of Paul Myers ¶¶ 15-16).
Myers reported the conversation that occurred between himself and Watkins to Donna Burn, a supervisor at the Postal Service and Jim Burn's wife, who immediately informed Sanford of it. Id. ¶¶ 69-71. In response, Sanford undertook an initial investigation of the matter, obtaining a written statement from Donna Burn, but failed to receive the cooperation of either Myers or Watkins. Id. ¶¶ 73, 75-78. Donna Burn, in relaying the information to Sanford, told her that Watkins was "investigating" the incident. Id. ¶ 74. Sanford contacted the Sheriff's department to determine whether that department was investigating the incident between Burn and Coke (id. ¶ 79) and contacted her supervisor, Berry to inform him of the investigation (Id. ¶ 80).
On the evening of November 4, 1998, Sanford met with Watkins to tell him that the Postal Service was placing him on administrative leave pending further investigation of the incident (involving Watkins, Myers, and Burn). Id. ¶ 81. By November 19, 1998, Sanford had determined that Watkins' actions warranted removal from the Postal Service due to his insubordination in failing to follow a direct order from Plant Manager Berry not to discuss Coke with anyone at the Post Office; Buchanan and Berry concurred in this action. On that same day, Sanford made a request to the Postal Service Labor Relations Board for Watkins' removal. Id. ¶ 82-84.
Sanford testified that Labor Relations advises the Postal Service in employment matters. Id. ¶ 85.
The Labor Relations Board responded to Sanford's request saying that it would be improper to consider removing Watkins without further investigation into the incident; Sanford had not yet received a response to her inquiry from the Marion County Sheriff's Department, although the Postal Service admits that the Sheriff's response would have had no bearing on the issue of Watkins' insubordination, and Sanford had not yet received a written statement from Myers about the incident. Id. ¶¶ 86-88; Pl.'s Add'l Facts ¶ 181.
The Postal Service's admission of this fact for the purpose of this motion is puzzling; presumably it would not have sanctioned Watkins for conducting an investigation if it had occurred at the direction of the Sheriff's department.
Thereafter Sanford obtained the written statement from Myers, describing the events as he recalled them. Def.'s Facts ¶¶ 89, 91-92. The Postal Service contacted the Sheriff's department a second time, this time by letter dated November 25, 1998, asking again if the department was conducting an investigation of the incident between Coke and Burn. Pl.'s Add'l Facts ¶¶ 179-80. On December 7, 1998, the Sheriff responded to the Postal Service's inquiry, informing Sanford that "[w]hile it is too early to speculate . . ., . . . it would be very unlikely that Deputy Watkins could be involved in an investigation of someone in his workplace." Def.'s Ex. 8, December 7, 1998, letter from Sheriff Jack L. Cottey to Elizabeth Sanford; Def.'s Facts ¶¶ 93-94. Based on that response, Sanford dismissed the possibility that Watkins had been questioning Myers as part of an official Sheriff's investigation, but still considered the possibility that Watkins might have been conducting his own personal investigation of the incident or had told Myers that he was investigating on behalf of the Sheriff. Def.'s Facts ¶ 95.
On December 28, 1998, the Postal Service held an investigative interview with Watkins, his attorney and Sanford. Id. ¶¶ 96-97. On the advice of the Labor Relations Board, Sanford asked additional questions (id. ¶ 98; Pl.'s Resp. to Def.'s Facts ¶ 98) and Watkins read a statement into the record detailing his allegations of prior discrimination at the hands of the Postal Service, including Berry's October 8, 1998, comment that Watkins had been taking FMLA leave, and also stating that:
"In order to defend myself against Mr. Coke's false allegations, I asked Paul Myers, a mechanic, if he knew what mechanic had recently been threatened. Conforming with Mr. Berry's October 8, 1998 [,] order, I did not mention any names." Def.'s Ex. 21, Statement of Paul Watkins read into the record at the December 28, 1998, Investigative Review; Def.'s Facts ¶¶ 99-100.
On January 12, 1999, the Postal Service issued its formal notice of proposed removal to Watkins, charging him with failure to follow Berry's direct order not to talk to or about Coke. Def.'s Facts ¶¶ 101-02. The notice cited Postal Regulation ¶¶ 6.51 which was in effect at the time of the incident and provided that: "Employees must obey the instructions of their supervisors. If an employee has reason to question the propriety of a supervisor's order, the individual will nevertheless carry out the order and immediately file a protest in writing to the official in charge of the installation, or appeal through official channels." Id. ¶¶ 103-04.
The notice also set forth Watkins' right to review the material relied upon to support the notice, to answer the proposed removal and to file a grievance pursuant to the collective bargaining agreement in force. Id. ¶ 105.
Watkins challenged the proposed removal at a meeting on February 11, 1999, (attended by Watkins, his attorney, Plant Manager Berry and Postal Service Labor Relations Specialist Pam Parrish) which provided Watkins a full opportunity to tell his side of the story. Id. ¶¶ 106-09. Scheduling conflicts, including those attributable to Watkins' attorney, prevented the meeting occurring sooner. Id. ¶ 107. As a result of information provided by Watkins at this meeting, the Postal Service conducted a further investigation of the incidents leading to the proposed removal. Id. ¶ 110.
After further investigation, the Postal Service determined that the information provided by Watkins on February 11, 1999, as well as additional evidence the Postal Service subsequently uncovered, warranted action short of removal. Id. ¶¶ 111-13. Accordingly, on March 19, 1999, the Postal Service administratively reduced Watkins' proposed removal to a 14-day suspension. Id. ¶ 114. Watkins does not dispute this disciplinary action, but informs us that some two weeks prior, on March 2, 1999, he had filed a formal EEO complaint against Sanford and Berry alleging discrimination against him based upon race, disability, and retaliation. Pl.'s Resp. to Def.'s Facts ¶ 114.
Watkins thereafter filed a grievance over the 14-day suspension which led to a settlement reducing the suspension to a letter of warning. Def.'s Facts ¶¶ 116-17. In addition, the settlement provided ten days worth of back pay for the 14-day suspension period, leaving Watkins unpaid for only four days during this period. Id. ¶ 118. (Watkins testifies that he would not have worked or been paid for these four days even if he had not been suspended. Id. ¶ 119). Watkins was also paid for the entire time period that he was on administrative leave from November 4, 1998, until his return to work on March 22, 1999, at his normal pay rate, not including overtime or night differential pay. Id. ¶¶ 120-21.
Watkins asserts that he would have worked twenty-four hours of overtime per week in November and December, that the night differential pay is approximately ten percent of his base salary (which he estimated to be nineteen dollars per hour) and that overtime is paid at time and a half. Pl.'s Add'l Facts ¶¶ 200, 222. The Postal Service objects to this testimony as speculation and lacking foundation in that Watkins provides no documentation related to his salary, the number of hours he "normally worked," or the number of hours that comparable employees worked during the relevant time period. Def.'s Reply to Pl.'s Add'l Facts ¶ 200. Watkins failure to corroborate his testimony in the form of pay slips or similar documentation renders his testimony insufficient to satisfy the evidentiary burden necessary in a Title VII claim. Oest v. Ill. Dep't of Corrections, ___ F.3d ___, No. 99-3883, 2001 WL 122111, at *8-9 (7th Cir. Feb. 14, 2001). Accordingly, we will not consider this evidence on this motion.
Labor Relations Specialist Parrish testified that in his experience, after participating in hundreds of disciplinary matters since 1993, the length of time it took to sift through the issues surrounding Watkins' proposed removal, and to determine the appropriate solution, was not unusually long. Id. ¶¶ 122-23. However, Sanford testifies that in her eighteen years as a supervisor, covering disciplinary actions involving approximately twenty individuals, she can only clearly recall two other employees who were placed on administrative leave for lengths of time similar to Watkins (both had been involved in physical altercations). Sanford Dep. at 117-19.
Watkins alleges that the manner in which the Postal Service handled this incident constituted treatment different than that received by a similarly situated Caucasian mail handler, Bruce Jones ("Jones"). Buchanan testified that Jones cursed Buchanan and his supervisor and when Buchanan approached Jones to calm him, Jones' breath smelled of alcohol. Buchanan Dep. at 112. Buchanan wrote up the incident and Jones' supervisor disciplined him, giving him a seven-day suspension, but ordering no administrative leave and issuing no letter of removal. Pl.'s Add'l Facts ¶ 201. The Postal Service admits that the incident occurred as thus described, but objects to the characterization that Jones was similarly situated to Watkins in that Jones' discipline was ordered by an individual uninvolved in Watkins' claims. Further, there is no evidence that Jones engaged in an ongoing feud with another employee or that he had violated a direct order of management. Def.'s Reply to Pl.'s Add'l Facts ¶ 201.
C. Allegations of Discrimination, Retaliation and Harassment Following Watkins Return to the Postal Service 1. Denial of FMLA leave
On March 22, 1999, after returning from administrative leave, Watkins met with John Swisher who worked in attendance control. Watkins Dep. at 127. Watkins testified that although Swisher had the title of "supervisor" prior to working in attendance control, Swisher was not actually in a supervisory position during that time. Watkins Dep. at 127-28. Watkins testified that Swisher told him "that Jerry Buchanan had asked [Swisher] to find a way where I couldn't take FMLA." Watkins Dep. at 127; Pl.'s Add'l Facts ¶ 202. (The Postal Service objects to this testimony as inadmissible hearsay.)
As we explain more fully at page 32 infra, the Postal Service's objection is well-taken and Swisher's alleged comment is not considered here.
Sometime in April and/or May of 1999, Watkins took one or two leaves of absence and sought to have them credited as FMLA leave. Def.'s Facts ¶ 126. Watkins was informed by Swisher that due to the administrative leave from November 4, 1998, until March 22, 1999, he had not worked the requisite 1,250 hours needed in order to be eligible for FMLA leave and his requst for FMLA leave was therefore denied. Id. ¶¶ 127-29; Watkins Dep. at 128.
2. Incidents between Watkins and Goodin
While Watkins was on administrative leave, his supervisor, John Hogue, retired and was replaced by Terry Goodin. Def.'s Facts ¶¶ 131-32. Although Hogue had never imposed a fixed lunch or break schedule (anyone, including Watkins, could take lunch and one of two daily 15-minute breaks whenever he wanted), Goodin instituted a set lunch and break schedule. Id. ¶¶ 130, 133. Thus, when Watkins returned from leave, there was a schedule identifying specific times when each employee was required to take breaks and lunches; however, due to an oversight Watkins' name was initially left off this schedule. Id. ¶¶ 134, 137.
Without prior warning that there were any concerns with Watkins' performance, Goodin informed Watkins at the end of Watkins' first week back from leave that he wanted to hold a "pre-disciplinary" hearing with Watkins regarding his failure to follow the break schedule. Id. ¶¶ 135-36. Although Watkins' name had been omitted from the schedule, Goodin believed that he had previously told Watkins to take his breaks at specific times; Watkins does not recall any such conversation prior to the pre-disciplinary hearing. Watkins Dep. at 156-59. Watkins asserts that this pre-disciplinary hearing, coming one week after his return from administrative leave, was "discrimination based upon his prior EEO complaints." Pl.'s Add'l Facts ¶ 206. Other than this "pre-disciplinary hearing" Watkins received no disciplinary action as a result of this incident and lost no pay or benefits. On July 1, 1999, Watkins filed an EEO charge against Buchanan and Goodin, alleging that these actions constituted race discrimination, disability discrimination, and retaliation for Watkins' prior EEO activity. Pl.'s Ex. 10.
On October 22, 1999, Watkins filed another EEO complaint containing the same allegations, but this time naming Buchanan and Sanford. Pl.'s Ex. 11.
Watkins and Goodin had another encounter on August 3, 1999, after Goodin observed Watkins performing his job in a manner that Goodin felt was unacceptable. According to the Postal Service, Goodin observed Watkins pulling one piece of equipment with his vehicle, although there were several similar pieces of equipment waiting to be moved, and Goodin believed that Watkins should have moved them all at one time. Def.'s Facts ¶¶ 140-41. When Goodin questioned Watkins about why he was only pulling one piece of equipment at a time, Watkins responded that the pieces of equipment were of different types which could not be tugged simultaneously and then drove away. Id. ¶ 143. When Watkins returned, Goodin confronted Watkins about driving away while Goodin was talking to him, to which Watkins responded, "Well, Terry, I answered your question, you know, and I thought you understood what was going on here. . . . I think you're harassing me." Id. ¶¶ 144-46. When Watkins returned for a third time, Goodin told Watkins to accompany him to his office for a pre-disciplinary hearing for disrespecting a supervisor. Id. ¶ 147. Watkins refused because he felt the hearing was unwarranted and because no union official was present. Id. ¶ 148.
According to Watkins, Goodin did not understand what went on in the unit or the work the employees perform and that the pieces of equipment Goodin was asking about were of different types which could not be tugged simultaneously. Pl.'s Resp. to Def.'s Facts ¶ 141. Watkins is also of the view that when Goodin first confronted him and asked him why he was only tugging one piece of equipment at a time, Watkins answered his questions and simply continued about his business. Watkins Dep. at 166.
Immediately following this incident with Watkins, Goodin conferred with Sanford and Donna Burn. Pl.'s Add'l Facts ¶ 211. Goodin then informed Watkins that he was being placed on administrative leave for a time period which appears to have lasted only from that evening until Watkins returned the next day. Id.; Watkins Dep. at 167. When he returned the next day, the Postal Service held a pre-disciplinary hearing in which Goodin questioned witnesses to the incident. Watkins Dep. at 167-68. This hearing resulted in a proposed seven-day suspension for Watkins, to which Watkins responded again by filing a grievance. Id.; Def.'s Facts ¶¶ 149-50. On September 3, 1999, the parties again reached a settlement in which the proposed suspension would be expunged from Watkins' work record, provided that no further disciplinary action was taken against Watkins because of work performance issues. Def.'s Facts ¶ 151. Although these events resulted in Watkins being placed on "working suspension" for seven days, he missed no time from work and lost no pay or benefits. Id. ¶ 152; Watkins Dep. at 172.
3. Direct Order related to Watkins parking at the Comfort Inn
The final incident of alleged discrimination, retaliation and harassment of which Watkins complains pertains to a direct order which he received as a result of his parking at a Comfort Inn lot across the street from the downtown Post Office. Def.'s Facts ¶ 153. Certain Postal Service employees had a practice of parking their cars in the Comfort Inn parking lot instead of in the south Post Office lot because it was closer to the entrance of the Post Office. Id. ¶ 154. Watkins parked in the Comfort Inn lot because, he said, he drove to work in a sheriff's vehicle which contained firearms and Postal Service regulations prohibit an employee from parking a vehicle containing firearms on Post Office property making such an employee subject to removal. Id. ¶¶ 156-57; Pl.'s Add'l Facts ¶ 220.
Although existing Postal Service regulations did not require employees to park on Post Office property, sometime between August 25, 1999, and November 3, 1999, Postmaster Lamborne issued a direct order prohibiting all employees from parking in the Comfort Inn lot. Def.'s Facts ¶ 155; Buchanan Dep. at 119-20. Despite this direct order, Watkins continued to park his vehicle at the Comfort Inn lot, pursuant to an agreement he had reached individually with the manager of the motel. Def.'s Facts ¶¶ 159-60. The Postal Service cites the fact that despite the direct order prohibiting parking in the Comfort Inn lot and the regulations preventing Watkins from parking on Post Office property, he continued to park at the Comfort Inn without ever approaching management to explain the need to make alternative parking arrangements. Id. ¶ 158. Watkins counters that no Postal Service regulation prohibits an employee from parking his vehicle off Post Office property and no one monitored parking on non-Post Office property. Pl.'s Resp. to Def.'s Facts ¶ 158.
On August 25, 1999, Postmaster Lamborne sent a memorandum to Postal Service supervisors expressing his belief that employees were too concerned about parking issues and not concerned enough with work related issues. Pl.'s Add'l Facts ¶¶ 214-15; Pl.'s Ex. 7, Aug. 25, 1999, Memorandum from Postmaster Michael Lamborne.
On November 3, 1999, Postmaster Lamborne sent a memorandum to Plant Manager Berry concerning an unidentified Postal Service employee who was driving a sheriff's vehicle to work and parking it at the Comfort Inn parking lot. Def.'s Facts ¶ 162. The memo continued, "I wouldn't be surprised if they gave him permission to do so. However, I haven't. Check into who it is. Tell them they are postal employees when they work here and will park in designated areas. Also, check with the Comfort Inn and express our concern." Pl.'s Ex. 8, Nov. 3, 1999, Memorandum from Postmaster Lamborne to Plant Manager Berry. Although this memorandum indicates that Lamborne did not know who was driving the vehicle in question, Sanford and Buchanan each testified to being unaware of any Postal Service Processing Distribution Center employee other than Watkins who drove a sheriff's vehicle at the time. Pl.'s Add'l Facts ¶ 217; Def.'s Reply to Pl.'s Add'l Facts ¶ 217. As a result of Lamborne's memorandum, Watkins testified that he was specifically told not to park his vehicle at the Comfort Inn lot, which Watkins describes as another direct order. Watkins further stated "I guess I didn't really receive any discipline" and admited that he lost no pay, benefits or time off the clock and received no formal letter of warning or anything else in writing. Watkins Dep. at 173, 176.
Watkins contends that all of the activities described above constituted a hostile work environment, specifically: (1) being given a pre-disciplinary hearing within one week from returning from administrative leave; (2) being followed throughout the building by management; (3) being "subjected to different rules than other employees; and [(4)] being given immediate discipline where similarly-situated employees would not." Pl.'s Add'l Facts ¶ 203.
In addition to these allegations, Watkins has asserted that he once "had a verbal exchange with another co-worker and was immediately placed off the clock," while "similarly-situated Caucasian employees were not placed off the clock." Watkins Dep. at 147-48. However, Watkins is unable to identify other employees who allegedly had arguments and were not taken off the clock, or other employees' history of EEO activity or use of FMLA leave. Def.'s Reply to Pl.'s Facts ¶ 205. We therefore disregard Watkins' assertions. Watkins also testified that Buchanan would monitor Watkins' work habits and would call Watkins' supervisor to question whether Watkins was supposed to be taking a break every time that Watkins would take a break, whereas Buchanan did not make such inquiries of other employees. Watkins Dep. at 143, 145-46. The Postal Service again objects to this testimony as vague and lacking foundation because Watkins cannot identify when, or which supervisor allegedly told Watkins that Buchanan was making these inquiries about Watkins and Watkins alone. Def.'s Reply to Pl.'s Add'l Facts ¶ 204. Moreover, Watkins has admitted that he has no knowledge of whether Buchanan ever inquired as to the propriety of other employees' breaks. Watkins Dep. at 145-46. Without this fundamental evidentiary foundation, Watkins' testimony on this matter is not admissible and we do not consider it on this motion.
4. Allegations of damages
Finally, Watkins alleges that he became "stressed out" as a result of working at the Post Office, although he has never specifically alleged that the stress was due to discrimination, harassment, or retaliation. Watkins Dep. at 196-97. In addition, he alleges that the stress caused him to become depressed, caused weight gain and "had an impact on his wife and kids." Id. at 198-99; Pl.'s Add'l Facts ¶ 224. The Postal Service objects to this testimony as vague and lacking foundation in that Watkins provides no evidence, medical or otherwise, substantiating his claim that the stress, weight gain, and the limitations on his relationship with his family are solely (or in any way) attributable to his work at the Post Office. Def.'s Reply to Pl.'s Add'l Facts ¶ 224; see also Def.'s Exs. 4, 9, 10 (describing restraining orders filed against Watkins and the rather stormy dissolution of his marriage).Discussion A. Summary Judgment Standards
Summary judgment is appropriate 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 genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).With a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" to cite evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. However, mere "[c]onclusory allegations by the party opposing the motion cannot defeat the motion." Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 931 (7th Cir. 1995). "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in [his] favor on a material question, then the court must enter summary judgment against [him]." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52). Evidence that is inadmissible at trial, such as inadmissible hearsay testimony, is unusable at summary judgment to the same extent it is inadmissible at trial and we are not permitted to consider such evidence to support or defeat this motion. Minor v. Ivy Tech State Coll., 174 F.3d 855, 856 (7th Cir. 1999); Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997); Collier v. Budd Co., ¶¶ F.3d at 886, 892 n. 8 (7th Cir. 1995); cf. Fed.R.Evid. 801, 802.
In considering a motion for summary judgment, a court must draw all reasonable inferences in a light most favorable to the non-movant. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). Thus, if genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). However, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his case, summary judgment is not only appropriate, but also required. Celotex, 477 U.S. at 322; Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989).
B. Watkins Title VII Race Discrimination And Retaliation Claims
Title VII makes it unlawful for an employer to discriminate against an employee because of the employee's race or national origin. 42 U.S.C. § 2000e-2(a)(1). Proof of intentional discrimination is required under such a disparate treatment analysis. Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1031 (7th Cir. 1998) (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In addition to protecting those who face discrimination, Title VII also protects those who contest illegal discrimination by filing formal complaints or otherwise challenging objectionable practices. 42 U.S.C. § 2000e-3 (a); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
We consider [retaliation claims] separately because under Title VII it is unlawful to retaliate against an employee even if the employee's complaints of . . . discrimination (giving rise to the retaliation) are unfounded. The complaints themselves are protected speech under Title VII's terms, meaning an employee may complain (in good faith) without the added burden of having to be right.
Sweeney v. West, 149 F.3d 550, 554 (7th Cir. 1998). While a claim for retaliation is distinct from a discrimination claim, the same analysis applies to both. Sanchez v. Henderson, 188 F.3d 740, 745-46 (7th Cir. 1999), cert. denied, 528 U.S. 1173 (2000).
A plaintiff can satisfy his burden of proof for a Title VII claim by two avenues: (1) he may present direct evidence of discriminatory intent or, because of the difficulty in directly proving discrimination, (2) he may use the indirect, burden-shifting procedure set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Gonzalez, 133 F.3d at 1031. Both parties here frame their arguments related to Watkins' Title VII race discrimination and retaliation claims under the McDonnell Douglas standard.
To survive summary judgment, the plaintiff must first establish a prima facie case giving rise to an inference of discrimination. Mills, 171 F.3d at 454. Under McDonnell Douglas, the plaintiff may create an inference of race discrimination by showing: 1) he was within a protected class; 2) he was performing according to the employer's legitimate expectations; 3) he suffered an adverse employment action; and 4) others not in the protected class were treated more favorably. Jackson v. E.J. Brach Corp., 176 F.3d 971, 982-83 (7th Cir. 1999); Mills, 171 F.3d at 454; Gonzalez, 133 F.3d at 1031. The prima facie case of retaliation requires him to show that he engaged in protected behavior, suffered a materially adverse employment action, and that there is a causal link between the protected activity and the adverse action. Pafford v. Herman, 148 F.3d 658, 670 (7th Cir. 1998).
Under either claim, if the plaintiff fails to state a prima facie case, we "need not proceed any further in the McDonnell Douglas analysis." Fisher v. Wayne Dalton Corp., 139 F.3d 1137, 1142 (7th Cir. 1998) (citing Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir. 1997); Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997)). Absent proof of a prima facie case, the plaintiff has failed to raise an inference of discriminatory intent and summary judgment must be entered in favor of the defendant. Fisher, 139 F.3d at 1142. The Postal Service disputes Watkins' ability to prove a prima facie case of either claim, contending that there is no evidence that Watkins suffered a materially adverse employment action (cited by Defendant in opposition to both claims) and that there is no evidence that similarly situated people outside of Watkins' protected class were treated more favorably than he (cited by Defendant in opposition to the race discrimination claim alone). Def.'s Br. at 25.
No matter how far our analysis proceeds, "[t]he ultimate burden remains with the plaintiff-employee to persuade the trier of fact that the defendant-employer intentionally discriminated against him. . . ." Pitasi v. Gartner Group, Inc., 184 F.3d 709, 716 (7th Cir. 1999) (internal quotations omitted); accord Gonzalez, 133 F.3d at 1032.
The Postal Service also disputes that Watkins was performing in his position up to its legitimate business expectations. Def.'s Br. at 25 n. 13. However, as the Postal Service notes, the prima facie case framework is fluid and often the analysis of whether the plaintiff performed the position up to the employer's expectations is folded into the pretext analysis. Vanasco v. National-Louis Univ., 137 F.3d 962, 966 (7th Cir. 1998); Denisi v. Dominick's Finer Foods, Inc., 99 F.3d 860, 864 (7th Cir. 1996); see also Oest v. Ill. Dep't of Corrections, ___ F.3d ___, No. 99-3883, 2001 WL 122111, at *12 n. 3 (7th Cir. Feb. 14, 2001) (noting that whether the employee was performing to the employer's standards is not properly an issue at the prima facie case stage of analysis when the people judging the employee's performance are the same ones that are accused of discriminating against her).
The only employment action to which Watkins specifically directs our attention in support of either of these claims is the forced administrative leave he took from November of 1998 until March of 1999. Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n Br.") at 16-17, 20-21. The Postal Service contends that since Watkins was paid at his normal pay rate for the entire term of the administrative leave, this leave cannot be considered an "adverse employment action." The Postal Service continues by asserting that the only tangible employment consequences Watkins can cite are losing the opportunity for overtime and night differential pay for that period, consequences it contends are immaterial. Def.'s Br. at 29. For the reasons we outlined in footnote six, supra, we agree that Watkins, in relying only on his uncorroborated self-serving testimony, has failed to establish that the opportunity for overtime and night differential pay was a benefit to which Watkins would have been automatically entitled. Without establishing an entitlement, any potential loss is legally immaterial and cannot serve as the predicate for a disparate treatment claim. Cf. Rabinowitz v. Pena, 89 F.3d 482, 488-89 (7th Cir. 1996) (holding that loss of bonus where the employee was not automatically entitled to that bonus was not an adverse employment action).
However, this is not the only manner in which Watkins alleges that the forced leave of absence materially affected him, noting in addition the Postal Service's own contention, discussed more fully infra, that the lengthy administrative leave rendered him ineligible for leave pursuant to the Family and Medical Leave Act of 1993 ("FMLA"), codified at 29 U.S.C. § 2601 et seq. Pl.'s Opp'n Br. at 17. The Postal Service discounts this argument, stating that "there is no evidence to suggest anything unlawful about placing Watkins on leave while Watkins challenged his proposed removal for disobeying a direct order." Reply Br. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Reply Br.") at 7-8.
The Postal Service's argument is inappropriate at this stage in the analysis. All Watkins must establish as a part of his prima facie case is that he suffered a "material loss of benefits." Rabinowitz, 89 F.3d at 488 (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). With respect to Watkins' FMLA claim, the Postal Service concedes that, by virtue of his being placed on administrative leave, he was later ineligible for FMLA benefits to which he otherwise might have been entitled. Therefore, for purposes of his prima facie case, the ineligibility was a material loss of benefits sufficient to satisfy this element of his prima facie case.
Watkins falters more critically, however, when he confronts the last element of his prima facie case of a race discrimination claim, to wit, that similarly-situated employees were treated more favorably than he. Watkins cites Bruce Jones as a similarly situated Caucasian employee whom the Postal Service treated differently. Pl.'s Opp'n Br. at 21. Buchanan's testimony, the only admissible evidence provided to us by Watkins shows that Jones cursed at a supervisor and Buchanan, that when Buchanan approached Jones he smelled alcohol on his breath, and that Jones was immediately suspended by his supervisor (not Buchanan, but Jeffrey Simonton) for seven days. Pl.'s Add'l Facts ¶ 201(citing Buchanan Dep. at 112).
Watkins also cites his own deposition testimony to the same effect, but his only source of information for the incident comes in the form of inadmissible hearsay declarations by Jones himself. Watkins Dep. at 124-25; Fed.R.Evid. 801(d), 802. His testimony is not based upon personal knowledge; accordingly, we do not consider it here. Oest, ___ F.3d ___, 2001 WL 122111, at *8-9; Fed.R.Evid. 602.
Buchanan's testimony fails to establish that Jones and Watkins were similarly situated: Jones was accused of being under the influence of alcohol on the job, Watkins was accused of violating a direct order from a superior; the person who imposed the sanction on Jones was not involved in the events relating to Watkins; and, unlike Watkins, Jones was not alleged to have been in an ongoing dispute with a co-employee. Each of these factors is central to Watkins' allegations, and the distinctions with respect to the Jones' case makes Watkins' comparisons inapposite.
All that we are left with to support this prong of the analysis is Watkins' own self-serving, conclusory allegations of disparate treatment. The Seventh Circuit has recently reiterated that such statements and "uncorroborated generalities," testified to only by the plaintiff, are insufficient to satisfy plaintiff's evidentiary burden in a Title VII claim. Oest, ___ F.3d ___, 2001 WL 122111, at *8-9.
Moreover, even if we were to conclude that Jones was similarly situated to Watkins, his penalty, a seven-day suspension (presumably without pay), was arguably less severe than that imposed upon Watkins (who received base pay for the entire period of administrative leave and who was ultimately sanctioned with only a letter of warning). Because Watkins has provided no evidence of the treatment of any similarly situated individuals, he has failed to prove each element of his prima facie case of race discrimination. Summary judgment must enter in favor of the Postal Service on this claim.
Watkins also fails to provide evidence to establish the final element of his retaliation claim: that there is a causal link between his administrative leave and any protected activity on his part. Watkins relies solely on an alleged "telling temporal sequence" to establish the required nexus in support of his retaliation claim. Pl.'s Opp'n Br. at 17-18. Watkins details a number of allegations of discrimination which he has filed against both Buchanan and Sanford, dating as far back as 1994. Id. at 18. Despite relying on the administrative leave as the only "adverse employment action" on which he bases his retaliation claim, Watkins' sequence of discriminatory events does not even include this seminal event. Instead, he cites: (1) the alleged September, 1994, order from Buchanan to Watkins' supervisors to follow Watkins; (2) the alleged March 22, 1999, statement of John Swisher (a person whom Watkins concedes held a non-supervisory position) that Buchanan had asked Swisher to find a way to prevent Watkins from being eligible for FMLA leave; (3) the pre-disciplinary hearing Watkins received on March 26, 1999, for allegedly not following a set break schedule; (4) the August 3, 1999, pre-disciplinary hearing for alleged disrespect to a supervisor, which incident included Watkins telling his supervisor Goodin "I think you're harassing me;" and (5) the November 3, 1999, direct order for parking his vehicle at the Comfort Inn parking lot. Id. at 18-19. We repeat: there is no mention in this litany of the administrative leave issue.
The evidence suggests that the "protected activity" in which Watkins engaged were his EEO filings on January 5, 1994, February 6, 1995, May 6, 1996, October 23, 1996, March 2, 1999, July 1, 1999, and October 22, 1999, alleging discrimination and retaliation by Buchanan, Sanford, Goodin and Berry. See Pl.'s Exs. 1, 3-5, 9-11. While it is true that a "telling temporal sequence" is "the obvious place to start" and it is "oftentimes . . . unnecessary to look any further," such suspicious timing occurs when the sequence is closer in time, that is to say, a span of a day or a week between the protected activity and the adverse employment action. Sweeney, 149 F.3d at 557. The Seventh Circuit has held that lapses of three months to one year between the protected activity and the adverse employment action are too attenuated to raise an inference of discrimination without more evidence. Oest, ___ F.3d ___, 2001 WL 122111, at *12 n. 8 (collecting cases).
Here, the adverse employment action of which Watkins protests (being placed on administrative leave) occurred on November 4, 1998, more than two years after the closest prior instance of protected activity (October 23, 1996). This span of time cannot properly be construed as "suspicious" or "telling." Watkins does not provide any further evidence of a nexus between these protected acts and being placed on administrative leave, thus dealing a deathblow to his retaliation claim as a matter of law.
To the extent that Watkins alleges that the other incidents listed above serve as independent acts of retaliation, this claim too must fail. Watkins first claim (being followed around by supervisors in September 1994) allegedly occurred nine months after any prior protected activity (January 5, 1994). Watkins provides no link between this surveillance action and the January 5, 1994, EEO complaint, other than the timing, but as we have previously noted this span of time is entirely insufficient to serve as the causal link in a prima facie case of retaliation.
This claim rests on dubious evidentiary grounds as well: the only basis for the claim is Watkins unsworn EEO complaint to the effect that he witnessed the two supervisors following him. Pl.'s Ex. 4. This affidavit does not link Buchanan (the actor who is accused of retaliation) to this "adverse employment action" and Watkins provides no other evidence to bridge this gap. Moreover, the incident occurred five-and-a-half years before Watkins filed this complaint in our court, a lapse that would surely appear to bar the claim.
The comment allegedly made by Swisher, although occurring only two weeks after Watkins filed his March 2, 1999, EEO complaint, is hearsay. Fed.R.Evid. 801, 802. Watkins admits that Swisher was not in a supervisory position or acting in a supervisory capacity with the Postal Service when he allegedly told Watkins of Buchanan's statement, preventing Watkins from imputing Swisher's declaration to the Postal Service to overcome its hearsay nature. Fed.R.Evid. 801(d)(2)(A). Thus, Swisher's testimony is inadmissible, and we shall not consider it in the context of this motion.
Finally, we turn our attention to the last three incidents cited by Watkins: the March 26, 1999, pre-disciplinary hearing; an August 3, 1999, pre-disciplinary hearing; and the November 3, 1999, reprimand for failure to follow a direct order not to park his car in the Comfort Inn parking lot. None of these actions against Watkins suffices as an "adverse employment action." Watkins is unable to identify how these disciplinary actions constituted a material adverse change in the terms and conditions of employment. As a result of them, he did not lose any pay or benefits. These allegations against the Postal Service are akin to retaliatory reprimands or negative oral or written evaluations which the Seventh Circuit has held to be outside the purview of Title VII. Oest, ___ F.3d ___, 2001 WL 122111, at *8; Sweeney, 149 F.3d at 556; Smart v. Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996. As such, none of these incidents provides an independent basis for a retaliation claim under Title VII. The Postal Service is therefore entitled to summary judgment on Count III of Watkins amended complaint as a matter of law.
C. Watkins Title VII Hostile Environment Claim
In addition to the Title VII discrimination and retaliation claims, Watkins contends that the same objectionable conduct constituted a hostile work environment, actionable under Title VII. Faragher v. City of Boca Raton, 524 U.S. 775, 786-87 (1998); Dey v. Colt Constr. and Dev. Co., 28 F.3d 1446, 1453 (7th Cir. 1994); 42 U.S.C. § 2000e-2(a)(1). "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Faragher, 524, U.S. at 807. "When the workplace is permeated with `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)).
In order for a plaintiff to have an actionable hostile work environment claim under Title VII, the work environment must be both objectively and subjectively hostile. Harris, 510 U.S. at 21-22. In other words, the environment must be one that a reasonable person in the plaintiff's position would find hostile or abusive, and one that the victim in fact did perceive to be so. Faragher, 524 U.S. at 786-87; Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998); Dey, 28 F.3d at 1454. This inquiry eliminates any requirement that a plaintiff demonstrate that the harassment concretely impaired his work performance or psychological well-being, and focuses instead on whether the harassment altered the terms and conditions of his employment. Harris, 510 U.S. at 21-22; Dey, 28 F.3d at 1454-55.
We determine whether an environment is sufficiently hostile or abusive to impose liability by looking at the totality of the circumstances, "including but not limited to 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." Mosher v. Dollar Tree Stores, Inc., ___ F.3d ___, No. 00-1508, 2001 WL 128087, at *4 (7th Cir. Feb. 16, 2001) (quoting Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23))). For example, relatively isolated instances of non-severe misconduct will not support a claim of hostile work environment, although a pervasive pattern of bigoted jokes may incur Title VII liability. Dey, 28 F.3d at 1456; Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993).
As Seventh Circuit Judge Kenneth Ripple has phrased it in his opinion, we must examine "isolated" incidents cumulatively "in order to obtain a realistic view of the work environment." Doe, 44 F.3d at 444. Therefore, we look at all of the alleged conduct together in evaluating Watkins' claim.
1. Objective Evaluation
Watkins contends that he faced an abusive environment as evidenced by six incidents over three-and-a-half years (May 1996 through November 1999). Pl.'s Opp'n Br. at 22-23. In support of his hostile environment claim, Watkins specifically cites the following conduct:
(i) intentionally transfer[ring] Watkins to the same location as an employee with whom he had an ongoing feud [Coke]; (ii) plac[ing] Watkins on administrative leave for well over four months; (iii) inform[ing] Watkins that he would not be permitted FMLA leave on his first day back from administrative leave; (iv) issu[ing] a pre-disciplinary hearing to Watkins only five days after returning from administrative leave; (v) issu[ing] Watkins a 7-day suspension for an incident that the defendant's own witness implicated the supervisor as the problem; and (vi) issu[ing] Watkins a direct order on where to park his vehicle less than three months after the `parking czars' were ordered to `get a life!'
Id. at 23. Beyond cataloging them for the court, Watkins makes no explanation of why these incidents were or are objectively abusive. Id.
Examining these incidents cumulatively, it becomes clear that they simply do not rise to the level of conduct that a reasonable person would find abusive. To begin with, six incidents spread over forty-one months is hardly a rate that one could consider frequent and, as previously explained, being placed on administrative leave is the only action that could reasonably be considered to have interfered with Watkins' performance or to be "severe." A jury simply could not reasonably conclude that these actions would cause an objective person to view the work environment as sufficiently abusive or hostile to be actionable under Title VII.
The seven-day suspension which Watkins cites was in fact a seven-day working suspension; although Watkins was suspended for that amount of time, he was paid at his normal rate for the entire period and the suspension was later to be expunged from his record, provided no further disciplinary action was required for work performance issues. Watkins Dep. at 170-71; Def.'s Ex. 12, Oct. 6, 1999, Step 2 Settlement Agreement.
2. Subject Evaluation
Watkins has also failed to establish that subjectively he found the conditions to be abusive or hostile. "[I]f the victim of the alleged harassment does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is not a Title VII violation." Dey, 28 F.3d at 1454 (quoting Harris, 510 U.S. at 370). Watkins alleges that he sought psychological treatment after becoming "stressed out" as a result of working at the Post Office, although he never specifically alleges that the stress was due to discrimination, harassment, or retaliation. Watkins Dep. at 196-97. In addition, he alleges that the stress caused him to become depressed, caused weight gain and "had an impact on his wife and kids." Id. at 198-99; Pl.'s Add'l Facts ¶ 224. However, this testimony fails to link any alleged psychological injury to the conduct of the Postal Service.
Any number of employees, both with the Postal Service and in other unrelated work settings, no doubt feel "stressed out" from doing their job at one time or another. Such feelings of stress are not the type of harm from which Title VII was intended to protect employees. An employer can be held liable for a hostile environment only when the injury can be causally linked to those actions which give rise to the Title VII claim and, as we have noted, Watkins does not provide evidence of such a link. Watkins also fails to provide sufficient evidence of his own subjective perceptions of the Postal Service's conduct, once again relying only on his own self-serving, conclusory allegations to supply the evidentiary basis for this claim. Cf. Mosher, ___ F.3d ___, 2001 WL 128087, at *3 (drawing on the testimony of the plaintiff's psychologist in examining the plaintiff's subjective reaction to the alleged harassing conduct of her supervisor). As with his other Title VII claims, Watkins' hostile work environment claim falters due to his failure to provide the basic evidentiary support necessary to establish the aspects of this claim and to impose liability on the Postal Service. Defendant thus is entitled to summary judgment on this claim and accordingly on Count I in its entirety.
E. Watkins Family and Medical Leave Act Claim
The only remaining claim in Plaintiff's lawsuit is Count II, which asserts a violation of the FMLA. The FLMA establishes two categories of protections for employees. First, the Act contains prescriptive protections that are expressed as substantive statutory rights, which provide eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition, as statutorily defined therein. King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999); 29 U.S.C. § 2612(a)(1).
To ensure the availability of this guarantee, the FMLA declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615(a)(1); King, 166 F.3d at 891. An employee alleging a deprivation of this substantive guarantee must demonstrate by a preponderance of the evidence only his entitlement to the disputed leave. Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir.), cert. denied, 121 S. Ct. 567 (2000). In such a case, the intent of the employer is immaterial. Rice, 209 F.3d at 1017; King, 166 F.3d at 891 (citing Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997)). A claim brought under this substantive right provision of the FMLA is referred to as an "entitlement claim."
To be eligible for leave under the FMLA, an employee must meet two statutory criteria: (1) the employee must have been employed by the employer from whom leave has been requested for at least twelve months from the date the leave commences; and (2) the employee must have provided the employer with "at least 1,250 hours of service . . . during the previous 12-month period." 29 U.S.C. § 2611 (2)(A). If an employee fails to meets these standards, i.e. that he is an "eligible employee," he has failed to establish his entitlement to the disputed leave and his claim must fail as a matter of law. See Blumenthal v. Murray, 946 F. Supp. 623, 626 n. 4 (N.D. Ill. 1996); Spurlock v. NYNEX, 949 F. Supp. 1022, 1033 (W.D.N.Y. 1996); Blidy v. Examination Mgmt. Servs., Inc., No. 96-C-3553, 1996 WL 568786, at *2-3 (N.D. Ill. Oct. 2, 1996).
In addition to the substantive guarantees contemplated by the FMLA, the Act also contains an anti-discrimination component similar to Title VII, which prohibits an employer from discriminating or retaliating against an employee who requests or takes medical leave pursuant to the statute. Rice, 209 F.3d at 1017; King, 166 F.3d at 891. Specifically, "[a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave." 29 C.F.R. § 825.220(c); see also 29 U.S.C. § 2615 (a)(2) (b). Under such a "discrimination/retaliation claim" the intent of the employer is relevant and the burden-shifting apparatus of McDonnell Douglas applies with full force. King, 166 F.3d at 891 (quoting Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998) ("In such a case, the employer's motive is relevant, and the issue is whether the employer took the adverse action because of a prohibited reason or for a legitimate nondiscriminatory reason.")).
The Postal Service contends that Count II of the amended complaint asserts an FLMA "entitlement" claim and that Watkins had not worked the requisite 1,250 hours in the previous twelve months to statutorily qualify as an "eligible employee." Def.'s Br. at 18-20. Rather than responding to this argument, Watkins disavows an "entitlement" claim and casts his claim instead as one for "retaliation," focusing his argument on the alleged "retaliatory and discriminatory animus" that is "readily apparent." Pl.'s Opp'n Br. at 28. By entirely failing to respond to the Postal Service's argument that he has failed to establish a FMLA "entitlement claim," Watkins waives any such claim he may have had. Cf. Teumer v. General Motors Corp., 34 F.3d 542, 545-46 (7th Cir. 1994) (plaintiff waived legal theory when he "fail[ed] . . . to present legal arguments linking the claim described in the complaint to the relevant statutory (or other) sources for relief"); Farnham v. Windle, 918 F.2d 47, 51 (7th Cir. 1990) (plaintiff's failure to brief legal theories supporting his claim in response to motion to dismiss constituted waiver). This waiver provides a sufficient basis to grant summary judgment in favor of the Postal Service on any FMLA entitlement claim embraced within Count II.
As for Watkins' FMLA retaliation claim, the Postal Service responds, first, that it was not until Watkins' response brief to the summary judgment motion that he articulated a retaliation basis for his FMLA claim. Def.'s Reply Br. at 14-15. A review of the amended complaint makes the source of Defendant's confusion about the basis for Watkins' FMLA claim readily apparent. Count Two is titled "FMLA" and, although it begins at paragraph twenty-nine of the amended complaint, it incorporates each of the previous twenty-eight paragraphs, including ones that are clearly irrelevant to any FMLA claim (i.e., paragraph twenty-seven states "Defendant's unlawful actions have violated Watkins' rights as protected by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq., 1981a."). Paragraph thirty-one contains a similar general allegation of violation of the FMLA in its entirety, never stating the specific nature of Watkins' claim. Id. ¶ 31. Moreover, although Count Two is labeled "Violation of FMLA", Count Three is specifically titled "Retaliation," but references Title VII alone. Am. Compl. ¶ 34. A reasonable defendant responding to these factual assertions would conclude that the only retaliation claim Plaintiff is asserting is found in Count Three, pursuant to Title VII, and that the FMLA claim is therefore limited to an entitlement claim, and does not include a retaliation claim.
Moreover, Watkins attaches the caption "C. Watkins' Denial of FMLA Leave," to his response brief to this summary judgment motion, which indicates that Watkins construes the "retaliatory act" to have been Defendant's denial of the FMLA leave he sought in April and/or May of 1999. Pl.'s Opp'n Br. at 27. That claim is an entitlement claim.
Even if we were to construe Count Two as a retaliation claim under the FMLA, that claim would also fail, as a matter of law. The FMLA makes it unlawful for an employer to "discriminate against any individual for opposing any practice made unlawful under this subchapter." 29 U.S.C. § 2615 (a)(2) (emphasis added). To avail himself of the anti-retaliation provision of the FMLA, the plaintiff may utilize the same McDonnell-Douglas burden-shifting proof structure discussed above and make out the same prima facie case, similar to that in a Title VII retaliation case. King, 166 F.3d at 892-93; Sewall v. Chicago Transit Auth., No. 99-C-8372, 2001 WL 40802, at *9 (N.D. Ill. Jan. 16, 2001); Hite v. Biomet, Inc., 38 F. Supp.2d 720, 738 (N.D. Ind. 1999). We first address, therefore, whether and when Watkins availed himself of a right protected by the FMLA.
In the section of Watkins' brief discussing the FMLA claim, he references his earlier discussion of statutorily protected activity and defines the adverse employment action in the context of his Title VII retaliation claim. Pl.'s Opp'n Br. at 29 n. 3. Watkins argues that "[t]here is no question that Watkins engaged in conduct protected by Title VII: he filed EEO complaints." Pl.'s Opp'n Br. at 16. In order for this conduct to be considered an activity protected by the FMLA, those complaints would have to have somehow related to an assertion of rights under the FMLA. Although Watkins filed seven "EEO complaints," only the last two, dated July 1, 1999, and October 22, 1999, included even a passing reference to the FMLA. Pl.'s Ex. 10, EEO Complaint Dated July 1, 1999; Ex. 11, EEO Complaint Dated Oct. 22, 1999; see also Pl.'s Exs. 1, 3, 4, 5, 9. In the July 1, 1999, complaint, Watkins stated that he believed Goodin's "notice" that Watkins did not qualify for FMLA leave "[was] in retaliation for participating in prior EEO proceedings." Pl.'s Ex. 10, at 2. Watkins repeated this allegation in the October 22, 1999, complaint, stating that the "`notice is in retaliation for participating in prior EEO proceedings." Pl.'s Ex. 11, at 2.
It is plain that in both of these instances the alleged "statutorily protected activities" in which Watkins engaged were the prior EEO complaints, which did not include any claims that Watkins had requested FMLA leave. Each of those complaints was directed toward allegations of Title VII-type discrimination and retaliation based thereon, to wit, Watkins race. Pl.'s Exs. 1, 3, 4, 5, 9. In his complaints of July and October 1999, Watkins alleged that the Defendant denied his FMLA leave in retaliation for his engaging in activity statutorily protected by Title VII. This constitutes a properly asserted Title VII retaliation claim (already covered by Count Three of Watkins' amended complaint), not an FMLA retaliation claim. The FMLA does not protect an employee from retaliation for an activity statutorily protected by another statute, only from retaliation for an activity protected by the FMLA itself.
Watkins testified that the only times he actually availed himself of rights protected by the FMLA was when he took a leave of absence in April of 1999 and again in May of 1999 and requested that the Defendant allocate these as FMLA leave. Am. Compl. ¶¶ 20, 21; Def.'s Facts ¶¶ 126-129; Pl.'s Resp. to Def.'s Facts ¶¶ 126-129. These requests would properly serve as a predicate for an FMLA retaliation claim. Thus, while Watkins has established the first element of his FMLA retaliation claim, the undisputed facts establish that Watkins did not engage in an activity protected by the FMLA until April of 1999, at the earliest.
Obviously, any action taken by Defendant prior to April of 1999 will not suffice as an "adverse employment action," including Watkins' administrative leave between November, 1998 and March, 1999. Stated otherwise, even if we deem these other actions to have been "adverse," they cannot be causally linked to Watkins' request which was made after they occurred. Thus, in analyzing this claim, we must limit our consideration to the alleged adverse employment actions taken against Watkins after April of 1999, to wit, the August 3, 1999, pre-disciplinary hearing and the "direct order" received sometime after November 3, 1999. Def.'s Facts ¶¶ 62, 165. Although unmentioned by Watkins in his discussion of adverse employment actions, Watkins' placement on administrative leave while the events of August 3, 1999, were being investigated, followed by the recommended seven-day suspension, might warrant consideration but for the fact that after Watkins filed a grievance relating to this incident, Defendant expunged the proposed suspension from his work record and Watkins lost no pay as a result of this action. Pl.'s Resp. to Def.'s Facts ¶¶ 148-49; Def.'s Facts ¶¶ 150-52.
Setting aside the issue of whether these incidents, treated singly or treated together, rise to the level of an "adverse employment action," Watkins simply has not shown any causal connection between his requests for FMLA leave and any of these events. They occurred four to seven months after Watkins second request for FMLA leave, and although as we have previously noted suspicious timing can constitute circumstantial evidence of a causal connection, the timing between Watkins' requests for FMLA leave and these isolated incidents does not give rise to such an inference. Oest, ___ F.3d ___, 2001 WL 122111, at *12 n. 8 (collecting cases); Sweeney, 149 F.3d at 557.
Swisher, the only actor cited by Watkins as having a role in the decision to deny Watkins his request for FMLA leave, did not play any apparent part in subsequent employment actions, which were taken instead by or at the direction of Postmaster Lamborne and Goodin. Lamborne was responsible for the issuance of the "direct order" to Watkins relative to parking his car at the Comfort Inn, Watkins Dep. at 173, and nothing in the evidence indicates that Lamborne knew of Watkins' prior requests for FMLA leave. Absent knowledge that the FMLA had been previously invoked, there can be no retaliatory intent. Cf. Strickland v. Water Works and Sewer Bd., ___ F.3d ___, No. 99-14103, 2001 WL 50433, at *6-7 (11th Cir. Jan. 22, 2001) (holding that there can be no causal link between request for FMLA leave and discharge where the actor responsible for the discharge had no notice of the FMLA request). Therefore, no FMLA retaliation claim lies with respect to the "direct order" issued after November 3, 1999. Likewise, there is no evidence that Goodin was aware of any prior requests for FMLA leave by Watkins, which would causally link the August 1999 pre-disciplinary hearing, administrative leave, and proposed suspension to such requests.
The only evidence cited by Watkins of a nexus between any adverse employment action and any FMLA protected activity occurred prior to Watkins' requests for FMLA leave. See Pl.'s Opp'n Br. at 28-29 (citing Def.'s Facts ¶ 40 and Pl.'s Add'l Facts ¶ 202 (quoting a supervisor (Berry) as saying to Watkins that he understood Watkins had "been taking a lot of FMLA" in November of 1998 and quoting a co-employee as telling Watkins in March of 1999 that Buchanan had told the co-employee to "`find a way to where Watkins could not take FLMA leave.'").
We have previously determined that the alleged comment made by Swisher is inadmissible hearsay and thus is not available to support any of Watkins' claims on this motion. While it is uncontested that Berry's comment was related to Watkins' FMLA leave, Watkins provides no evidence of his assertion of FMLA rights prior to Berry's remark, other than that which he has provided with respect to his Title VII claims. The record is totally bereft of evidence relating to any request by Watkins for FMLA leave beyond his own testimony to that effect, and in terms of a request for leave prior to his being placed on administrative leave, the entirety of his testimony is, "I think I had some in August." Watkins Dep. at 88.
Moreover, Berry's comment occurred when he issued the direct order to both Watkins and Coke not to talk to or about each other, an action that Watkins does not challenge as discriminatory or retaliatory. Watkins' superceding act of violating this direct order breaks any causal connection that might exist between this comment and the decision to place Watkins on administrative leave pending the Postal Service's investigation of that violation.
Watkins' potential FMLA claim is defeated by his own failures to develop a satisfactory evidentiary record in response to the Postal Service's motion. We repeat what we have stated now several times: Watkins' self-serving assertions of fact are insufficient as the sole basis for his claim of retaliation under the FMLA in the same way they were insufficient as the sole basis for his discrimination, retaliation and harassment claims under Title VII. The Postal Service's motion for summary judgment with respect to Count II thus warrants affirmance.
Conclusion
For the reasons explicated above, the Postal Service's motion for summary judgment is GRANTED in its entirety.