Opinion
Cause No. IP00-1940-C-H/K
May 8, 2002
JEANETTA WEST, Indianapolis, In., Pro Se.
BART A. KARWATH, Barnes Thornburg, Indianapolis, In., for Defendant.
ENTRY ON MOTION FOR SUMMARY JUDGMENT
This is an action for damages and reinstatement by Jeanetta West against her former employer, Westvaco Envelope Division ("Westvaco"). West alleges violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). She also asserts that Westvaco terminated her employment in retaliation for her having filed an EEOC charge against Westvaco. Westvaco moves for the entry of summary judgment, arguing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. For the reasons explained in this Entry, Westvaco's motion for summary judgment must be granted.
I. Summary Judgment Standard
Summary judgment must be granted when 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). To survive summary judgment, the nonmovant must set forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Factual disputes are `genuine' only `if the evidence is such that a reasonable jury could return a verdict for the [nonmovant].'" Oest v. Illinois Dep't of Corrections, 240 F.3d 605, 610 (7th Cir. 2001), quoting Anderson, 477 U.S. at 248.
A party moving for summary judgment initially has the burden of showing the absence of any genuine issue of material fact in evidence of record. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); Schroeder v. Barth, Inc., 969 F.2d 421, 423 (7th Cir. 1992). If the moving party carries this burden, the opposing party then must "go beyond the pleadings" and present specific facts showing that a genuine issue exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Because Westvaco seeks the entry of summary judgment, the notice required by Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1989) and by Local Rule 56.1 was issued. Through this notice, West was notified of the nature of Westvaco's motion, the proper manner in which to respond, and the consequences of failing to respond. West has responded to the motion with a discussion of her claims, but she has not responded with admissible evidence from herself or from potential witnesses. She has provided only an unsworn description of what she hopes her witnesses would say at trial. That response is not sufficient to raise a genuine issue of material fact; as West was notified, she could defeat the motion for summary judgment only by coming come forward with actual evidence. "[M]otions for summary judgment must be decided on the record as it stands, not on a litigant's visions of what the facts might some day reveal." Maldonado Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
II. Methods of Proof in Employment Discrimination Cases
West may prove her discrimination claims either by presenting direct evidence 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.
Under the alternative method, 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 establish a prima facie case of discrimination showing circumstances which, if not explained, would support an inference of discrimination. Second, once the prima facie case is established, the defendant must state a legitimate, non-discriminatory reason for the adverse employment action. Third, if a legitimate, non-discriminatory reason is offered, the plaintiff must come forward to show that the stated reason is not the true one, but only a false pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802-04; DeLoach v. Infinity Broadcasting, 164 F.3d 398, 401 (7th Cir. 1999).
With respect to a claim of retaliation, there is a direct evidence route to defeating a motion for summary judgment, as well as a modified McDonnell-Douglas method. In Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640 (7th Cir. 2002), the Court of Appeals clarified the proper standard for summary judgment when a plaintiff claims that she was retaliated against for complaining about employment discrimination. Here, where the plaintiff has not offered any direct evidence that her employment was terminated as a result of her filing an EEOC charge, the adapted McDonnell Douglas formula applies.
The second route to summary judgment, adapting McDonnell Douglas to the retaliation context, requires the plaintiff to show that after filing the charge only she, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though she was performing his job in a satisfactory manner. If the defendant presents no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents unrebutted evidence of a legitimate reason for the adverse action, it is entitled to summary judgment. Otherwise there must be a trial. See id. at 644. "Absent direct evidence of retaliation, failure to satisfy any element of the prima facie case proves fatal to the employee's retaliation claim." Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002).
III. Undisputed Facts
On the basis of the pleadings and the expanded record, and specifically on the portions of that record which comply with the requirements of Rule 56(e) for admissible evidence, the following facts are undisputed for purposes of Westvaco's motion:
Plaintiff Jeanetta West began working at Westvaco's Indianapolis envelope facility as an Operator in February 1998. She remained in that position until her termination in August 2000. At Westvaco, each Operator works in conjunction with an Adjuster on a single machine.
A. August 1998 Discipline
West had injured her arm and shoulder before she was employed by Westvaco. These injuries resulted in tendinitis. When she was hired at Westvaco, she was cleared to work without any restrictions. Despite her tendinitis, at most times she was able to perform the functions of her job at Westvaco without any accommodations. West routinely volunteered for overtime and averaged over 40 hours a week while at Westvaco. When her arm pain flared up, West would request light duty. The first time she made such a request, in August 1998, she was given light duty for four days, until August 26, 1998, when she volunteered to work overtime after her shift had ended. During this shift, West repeatedly requested that her Adjuster, who controlled the rate of the machine upon which the Operator worked, slow the pace of the machine down.
The pace of the machine was set by a supervisor. After the Adjuster refused to ignore the speed requested by management, West threatened to stop working if he did not turn the machine down. The Adjuster refused and West left the facility. According to Westvaco's Plant Rules (which are the subject of a collective bargaining agreement), such conduct is a Group A violation and subjects the offender to discharge.
After discussions with West's union representatives, a compromise was reached and the termination was reduced to a five-day suspension. Later, through the grievance procedure, the violation was reduced to a Class B violation that would expire in six months.
After receiving this discipline, on August 31, 1998, West filed an EEOC charge alleging that she had been discriminated against due to a disability. West alleged that on August 26, 1998, Westvaco put her on a machine that exceeded her restrictions. Several months passed with no further problems, and West withdrew the EEOC charge in June 1999.
B. August 1999 Insubordination
On August 19, 1999, a belt broke on the machine West was working on.
Chad Parlette, West's immediate supervisor, discussed the issue with West. West became defensive and began shouting profanities at Parlette and another supervisor. Parlette informed the superintendent, J. T. Ayers, of West's outburst and conduct. Ayers met with West, Parlette, and union representatives the next day to discuss the matter. West began swearing at Ayers and Parlette and continued to do so despite several requests to stop. Ayers interpreted this repeated conduct as insubordination in violation of Westvaco Plant Rules.
Ayers issued a Group A violation notice to West and suspended her pending termination for insubordinate conduct. After discussions with the union, Westvaco agreed to another compromise and the termination was reduced to a 5-day suspension. The notice specifically stated that any further violation of Plant Rules during the next 18 months would result in the termination of West's employment. The union did not seek arbitration regarding this discipline.
C. June 2000 Problems with Lee Cole
West worked with her Adjuster Lee Cole for over a year. They worked well together for most of the time they were paired, but in June 2000, Cole and West had difficulty working together. West accused Cole of treating her poorly and reported that she felt unsafe. Cole denied her allegations and blamed West for their problems. There were no other witnesses to the alleged incidents. Westvaco warned Cole that any unsafe behavior would not be tolerated and instructed them both to attempt to get along. Westvaco did not discipline West or Cole at this time.
D. August 2000 Termination
Despite the warnings, Cole and West continued to have problems. After another incident, Westvaco issued Disciplinary Action Notices to both for committing a Class B violation — incompatibility or inability to work in harmony with fellow workers. This notice was the only discipline on Cole's record. West, however, still had the Class A violation for insubordination on her record. Therefore, Westvaco terminated West for the combination of the Class A and the Class B violations. The union did not pursue this discipline to arbitration.
After her termination, West filed an EEOC charge alleging that Westvaco had harassed and retaliated against her for having filed the August 1998 EEOC charge of discrimination. She also alleged that her rights under the ADA had been violated. Specifically, West alleged the following in her charge:
On August 31, 1998, I filed a charge of discrimination under the Americans with Disabilities Act, against Westvaco Products, with the Equal Employment Opportunity Commission. On June 25, 1999, I withdrew the charge because it appeared that the company was going to take care of my complaint. Since withdrawing the charge I have been subjected to harassment, discipline and eventually discharged. I have been subjected to the following:
2/30/00 [sic] I was threatened with discharge by supervisor J.T. Ayres for allegedly walking off the job. I did not walk off the job and told him so. I received no discipline but view this as harassment.
6/12/00 I advised the Building Superintendent, Steve Dagenhart, that I was being harassed by a coworker, Lee Cole. I advised him that he was subjecting me to a hostile and unsafe work environment. Specifically, he was throwing things at me and grabbing me. On one occasion, one of the wooden objects he threw hit me. The only response from Mr. Dagenhart was that one day he was going to have to discharge me. He accused me of making false statements. He informed me that he was tired of my complaining and that I would have to work with Mr. Cole.
6/14/00 I advised Mr. Dagenhart that Mr. Cole tried to slam my fingers in a glass partition. Again he advised me that I had better get along with him. I should note that Ima Jean Quelwisi, coworker, offered to trade jobs with me, but Mr. Dagenhart refused her offer.
8/9/00 I received a Class B Warning for failing to get along with fellow workers. I also received a five day suspension pending termination.
8/14/00 I was brought into a meeting with J. T. Ayres. He advised me that Mr. Dagenhart wanted him to get rid of me. I was discharged for a continued violation of company policy.
Respondent did not follow their disciplinary policy as to my instance others have been treated better and according to policy.
I believe I have been discriminated against in retaliation for filing the prior charge of discrimination against the Company. My rights under the Americans with Disabilities Act have been violated.
E. West's Arm and Shoulder Conditions
In addition to the August 1998 request for light duty, there was a later time during which West wore an arm brace and could use only one arm. Westvaco had no jobs available that fit West's temporary restrictions while she wore the arm brace. West was placed on short term disability for a period of six weeks. When the arm brace was removed, West returned to her Operator position at the same wage rate and hours that she had before requiring the brace. At the time her employment was terminated, West was not under any physical restrictions that limited her ability to perform her job.
IV. Analysis
A. Age Discrimination Claim
In her complaint, West indicated that her claim was based, in part, on a violation of the ADEA. West, however, alleged no facts relating to her age in her complaint, nor did she assert a claim of age discrimination in either of her EEOC charges. West's age discrimination claim is barred because it was outside the scope of her EEOC charge.
"Generally a plaintiff may not bring claims under Title VII that were not originally brought among the charges made to the EEOC." Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995). To include a discrimination claim in a federal district court complaint not brought before the EEOC, the claim must be "like or reasonably related to the EEOC charges" and one that "reasonably could develop from the EEOC investigation into the original charges." Id. at 148. To be "like or reasonably related," the complaint must "at minimum, describe the same conduct and implicate the same individuals." Id., quoting Cheek v. W. S. Life Ins., 31 F.3d 497, 501 (7th Cir. 1994) (emphasis in original). The rule is intended to "prevent `circumvention of the EEOC's investigatory and conciliatory role.'" Noreuil v. Peabody Coal Co., 96 F.3d 254, 258-59 (7th Cir. 1996), quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985).
In her opposition to Westvaco's motion, filed on February 11, 2002, West argues that the "[a]ge discrimination came in when a girl 23 years old was caught sleeping with the supervisor. When this supervisor told Plaintiff that if she was too old to do the job, then this girl would not do it for her and it would be better if Plaintiff would just quit." Apart from the fact that there is no sworn and admissible testimony as to this matter, none of these allegations appear in any EEOC charge filed by West or in any prior filings in this action.
West "may not complain to the EEOC of only certain instances of discrimination, and then seek judicial relief for different instances of discrimination." Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). Nor is the claim of age discrimination "like or reasonably related" to the allegations of retaliation and disability discrimination that were set forth in the EEOC charge. Noreuil, 96 F.3d at 258 ("retaliation and age discrimination claims are sufficiently dissimilar that an administrative charge of one fails to support a subsequent civil suit for the other."). Thus, the age discrimination claim must be dismissed as beyond the scope of the administrative charge. See, e.g., Rush, 966 F.2d at 1111-12 (racial harassment claim beyond the scope of generalized language in EEOC charge); Whitehead v. AM Intern., Inc., 860 F. Supp. 1280, 1286-89 (N.D.Ill. 1994) (Title VII sex discrimination and retaliatory discharge claims barred because EEOC charge alleged only racial discrimination).
B. Disability Discrimination Claim
A plaintiff alleging discrimination bears the initial burden of coming forward with evidence that would allow a jury to find the elements of a prima facie case. See Bratton v. Roadway Package System, 77 F.3d 168, 176 (7th Cir. 1996). To establish a prima facie case of disparate treatment under the ADA, the plaintiff must come forward with evidence that she is a qualified individual with a "disability," as that term is defined in the statute, who suffered an adverse employment action because of her disability. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032-33 (7th Cir. 1999). Relevant to this inquiry, a person has a disability if she has a physical or mental impairment that substantially limits one or more major life activities, has a history of such an impairment or is regarded by her employer as having such an impairment. Emerson v. Northern States Power Co., 256 F.3d 506, 511 (7th Cir. 2001), citing 42 U.S.C. § 12102(2). If any one element of a plaintiff's prima facie case is lacking, summary judgment must be granted against her. See Celotex Corp., 447 U.S. at 323.
During her tenure at Westvaco, West suffered from occasional problems with her arm and shoulder. The applicable regulations and relevant case law show that West's temporary and intermittent conditions do not satisfy the ADA's requirement that a condition "substantially limit" a major life activity. See 29 C.F.R. § 1630.2(j); Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 952 (7th Cir. 2000) (infrequent flare-ups of arthritis not a disability); Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999) ("Disability does not include temporary medical conditions."); Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 544 (7th Cir. 1995) ("Intermittent, episodic impairments are not disabilities, the standard example being a broken leg."). Because West cannot establish a prima facie case of discrimination on the basis of disability, Westvaco is entitled to summary judgment on that claim.
C. Retaliation Claim
This leaves for consideration West's claim of retaliation. To establish a prima facie case of retaliation, West must come forward with evidence tending to show that, "after filing the charge only [s]he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though [s]he was performing [her] job in a satisfactory manner." Stone, 281 F.3d at 644. If West meets the prima facie burden, the employer must then offer a legitimate, non-retaliatory reason for the adverse action. Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009 (7th Cir. 2000).
Westvaco first argues that West cannot demonstrate any causal connection between her August 1998 charge of discrimination and the August 2000 termination of employment. This lack defeats only a claim based on the presentation of direct evidence. Stone, 281 F.3d at 644 (components of direct evidence method consist of expression, adverse employment action, and causation between the two). Here, West has not offered direct evidence of discrimination based on her 1998 EEOC filing, but she does not need to make such a showing in a prima facie case when using the McDonnell Douglas methodology. Id.
Looking beyond the question of a direct causal connection, West has not come forward with evidence that would support a finding that she was performing her job in a satisfactory manner. The evidence in the record — as distinct from unsworn argument — is undisputed that West was written up twice for misconduct and that the combination of the two disciplinary actions triggered her termination. West also has not presented evidence of any similarly situated employee who was not subjected to an adverse employment action. Indeed, Cole, the co-worker with whom West had the conflicts, received the same Class B disciplinary action that West did. It was only West's prior disciplinary troubles that produced the harsher result of termination for her, which means that in this respect, she and Cole were not similarly situated.
Even if West could establish a prima facie case, Westvaco has articulated a legitimate reason for the termination of West's employment. Specifically, Westvaco has presented evidence showing that West was discharged because she violated Westvaco Plant Rules. This articulation of a legitimate non-retaliatory reason for the employer's action requires West to come forward with evidence of pretext to avoid summary judgment. To do so, West must show that the company's proffered reason was a lie or completely lacking in factual basis. Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000); Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000).
West contends that the decisions to discipline her because of the personality conflict with Cole and to terminate her employment were unjust. She also alleges that when she had complained to plant manager Degenhardt about Cole's behavior, Degenhardt threatened to fire her on several occasions.
Although the court can construe West's argument generously as an attempt to demonstrate that Westvaco's proffered reason for her discharge was a pretext for discrimination, aside from her own speculation and apparent disagreement with the company's decision, West has not shown offered actual evidence that would allow a reasonable jury to fine that Westvaco lied about the reason for its action. See Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435, 441 (7th Cir. 1996) ("a plaintiff's own opinions about her work performance or qualifications do not sufficiently cast doubt on the legitimacy of her employer's proffered reasons for its employment actions"). "[T]he issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. Rather it addresses the issue of whether the employer honestly believed in the reasons it offers." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). An employer's erroneous decision or poor business judgment is not sufficient to establish pretext. See Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1031-32 (7th Cir. 1998). Thus, even if Westvaco officials were incorrect in their assessment of whether West's conduct violated Plant Rules, West has not shown that the reason for that determination was dishonest, i.e., a pretext for retaliation for her having filed an EEOC charge two years earlier. See Gordon v. United States, 246 F.3d 878, 886 (7th Cir. 2001) ("[The] issue of satisfactory job performance often focuses on the same circumstances as must be scrutinized with respect to the matter of pretext."); Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1113 (7th Cir. 1998) (noting overlap between factual inquiry relevant to "legitimate expectations" prong of the prima facie case and proof of pretext).
West has failed to satisfy her burden of proof in showing that Westvaco's reasons for terminating her employment were pretextual or unworthy of credence. Accordingly, Westvaco is entitled to summary judgment on West's claim of retaliation.
V. Conclusion
Summary judgment is the time when a party opposing the motion must present sufficient admissible evidence, at a minimum, to controvert a material factual issue in dispute. "After one party has filed a motion for summary judgment, `the burden shifts to the non-moving party to show through specific evidence that a triable issue of fact remains on issues [on] which the nonmovant bears the burden of proof at trial.'" Pharma Bio, Inc. v. TNT Holland Motor Express, Inc., 102 F.3d 914, 916 (7th Cir. 1996), quoting Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994); see also Roche v. John Hancock Mutual Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996) ("Put bluntly, `motions for summary judgment must be decided on the record as it stands, not on a litigant's visions of what the facts might some day reveal.'"), quoting Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994)). West has failed to meet this burden, and Westvaco's motion for summary judgment must be granted. All motions not specifically acted upon through this motion are denied. See Dunn v. Truck World, Inc., 929 F.2d 311, 313 (7th Cir. 1991) ("Final judgment necessarily denies pending motions. . . ."). Final judgment in favor of defendant shall now issue.
FINAL JUDGMENT
The court, having this day made its Entry granting defendant's motion for summary judgment, it is hereby ORDERED, ADJUDGED, AND DECREED that plaintiff Jeanetta West take nothing by her complaint against defendant Westvaco Envelope Division, and that this action is DISMISSED WITH PREJUDICE.