Opinion
IP 00-1180-C-T/K
March 6, 2002
Entry on Motion for Summary Judgment
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Emanuel Wright, brought claims against his former employer, Defendant, Efficient Lighting Systems, Inc. ("Efficient") for race discrimination and hostile work environment under 42 U.S.C. § 1981 as well as retaliation under § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Defendant has moved for summary judgment on Plaintiff's claims.
I. Summary Judgment Standard
Summary judgment is proper only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant bears the burden of informing the court of the basis for its motion and demonstrating the "absence of evidence on an essential element of the non-moving party's case." Celotex Corp., 477 U.S. at 323, 325. In response, the non-moving party may not simply rest on the pleadings, but must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial. . . ." Id. at 322. If the nonmovant fails to make this showing, then the movant is entitled to judgment as a matter of law. Id. at 323.
In determining whether there is a genuine issue of material fact, the court views the record and draws all reasonable inferences in the light most favorable to the nonmovant. Alexander v. Wis. Dep't Health Human Servs., 263 F.3d 673, 681-82 (7th Cir. 2001). No genuine issue exists if the record viewed as a whole could not lead a rational trier of fact to find for the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. Background Facts
These facts are not disputed unless otherwise noted. Additional facts may be set forth in the Discussion section as necessary. The parties had many disputes about the factual submissions, but the undiscussed factual disputes are not even remotely material to the issues raised by Efficient's summary judgment motion. Even if all of the other unresolved factual disputes were resolved in favor of Wright, his claims could not have survived summary judgment.
Plaintiff Emanuel Wright, an African-American, was employed with Defendant Efficient, an electrical contracting company, from July 21, 1997, through February 8, 2000.
Sean Smith is and since 1993 has been Efficient's president. Wright was first hired for the position of helper. In the fall of 1998 when he began training at the Associated Builders and Contractors School, he was promoted to the position of apprentice and received a pay increase. Wright received a second promotion in May 1999 when he was promoted to the position of leadman, even though he had not yet completed his school training. A pay increase followed as a result of the promotion.
Wright testified that a leadman "oversee[s] the work being performed on specific jobs that he is assigned to." (Wright Dep. at 23.) Efficient's job description for leadman states that "[t]he basic function of the Leadman is to supervise, coordinate and control the on site operations of his assigned project to produce high quality output in quantities that meet or exceed the established schedule." (Def.'s Ex. 7 at 1.) Wright acknowledged receiving and reading a copy of this job description on May 12, 1999. As a leadman, Wright had other Efficient employees assigned to work with him.
All of Efficient's employees are subject to the same disciplinary work rules. Under Efficient's disciplinary policy, lesser forms of misconduct subject an employee to progressive discipline; more serious forms of misconduct will result in suspension without pay or termination. With regard to the more serious forms of misconduct, Smith decides the sanction. The Information Handbook for Employees of Efficient Lighting Systems, Inc. ("Handbook"), which contains Efficient's disciplinary policy and work rules, states that "[d]eliberate interference with or delaying or restricting of production or the production of others" is prohibited and "will result in immediate suspension (without pay) or termination." (Def.'s Ex. 1 at 41.) On February 25, 1998, Wright acknowledged receiving and reading the Handbook.
On January 21, 2000, Wright initiated a discussion with Smith during which he voiced several complaints about his work assignments compared to those of other employees. At that time, Wright was Efficient's only African-American employee.
On February 2, 2000, Wright was assigned to work at the Prism Communications jobsite with Christine Norris, a first-year apprentice, Damon Turk, a helper, and Jay Holycross, the leadman. At the time, Efficient was in the process of installing the fire alarms. On Thursday, February 3, Smith advised Wright that special backboxes were needed in order to install the alarm system. Smith told Wright he would check with the alarm system company to see if they had such a box and would get back with Wright. Smith admits that it was his responsibility, not Wright's, to contact the alarm system company in order to obtain the backboxes. Smith never got back to Wright concerning the backboxes that day.
Efficient and Wright dispute whether Wright served in the capacity of leadman for the Prism job. Both parties have offered evidence to support their positions. (Compare Wright Dep. at 87-88 (testifying that Holycross was the leadman and though Wright was leadman "as far as his title," he wasn't in a leadman capacity as he reported to Holycross) with Smith Dep. at 68 (testifying that both Wright and Holycross were leadmen on the Prism job)). This evidence creates a genuine issue of fact over whether Wright was in the capacity of leadman for the Prism job. The court, of course, must view the evidence in the light most favorable to Wright and, therefore accepts Wright's testimony that he was not in the leadman capacity.
On Friday morning, February 4, Holycross left the jobsite at 7:30 a.m., leaving Wright as the senior Efficient employee on the jobsite. Wright, Turk and Norris worked up to approximately 11:00 a.m., completing the installation of the smoke detectors that could be installed without backboxes. Around 10:30 a.m. Wright called Smith and asked him about the backboxes. Smith was busy and told Wright to "stand by" and he would get back to him. Smith gave Wright no other direction or work assignment. Wright and the others went to lunch around 11:30.
When they returned, Wright told Norris and Turk that they could straighten up the material in the back room. Norris did not want to do the work, so she left. Turk stayed, but played computer games on his cell phone. Wright spent the remainder of the day "standing by," waiting to hear from Smith. Because he was unfamiliar with all of the equipment needed for the fire alarm system, Wright spent time reviewing the print and materials on the site to see what the installation required. He also received calls concerning another job in which he had served as leadman. He did not call the warehouse manager or anyone else about the backboxes because Smith had said he would get the boxes. Smith forgot and did not obtain the boxes or call Wright back.
Efficient's Statement of Material Fact ("SMF") 51 asserts that Wright did not instruct Turk or Norris to perform any work at the jobsite that afternoon. Wright disputes this SMF, and offers his Statement of Additional Material Fact ("AMF") 107 indicating that Wright told Turk and Norris that they could straighten up the material in the back room. Efficient expressly agrees with AMF 107, so the AMF is undisputed and accepted as true.
Around 3:30 p.m. Wright called Smith. Wright did not call him earlier that afternoon because Smith had said he was busy, Wright did not want to disturb him, and Smith already knew they needed the backboxes at the jobsite. Smith and Wright arranged to meet on the following Monday morning.
Later that afternoon, Smith talked with Mike Meharg, project manager for the general contractor at the Prism jobsite. Smith received a harsh reprimand from Meharg, a "very good customer," of Efficient (Smith Dep. at 82), for the lack of production from Efficient employees at the jobsite that day. Meharg told Smith that Wright and his help had not done any work from noon until quitting time at 3:30 p.m. and had spent the day "sitting around." Meharg told Smith he wanted a new crew on the job.
After talking with Meharg, Smith called Turk to find out what had happened at the job site. Turk told Smith that Wright was waiting to hear back from Smith, and he and Wright had not performed any work that afternoon. Smith then called Wright at home.
Smith told Wright that the general contractor reported that Wright did not do any work that afternoon, and Wright responded by saying that was not true. Wright told Smith that he could not talk at that time, and they agreed to meet Monday morning.
Smith and Wright met on Tuesday, February 8, 2000, since Smith was unable to meet Monday as they had arranged. Smith showed Wright page 41 of the Handbook and informed him that he was terminated for violating the work rule "deliberate interference with or delaying or restricting of production or the production of others." (Def.'s Ex. 8 at 119.)
On February 9, 2000, Wright filed his Charge of Discrimination with the Equal Employment Opportunity Commission, alleging that he had been discriminated against on the basis of his race and retaliated against for complaining about discrimination.
Wright claims that he was similarly situated to four Caucasian Efficient employees who were treated more favorably than he: Kelly Gill, Jay McNew, Allan Albrecht, and Allen Reddick. Gill, an apprentice, caused damage to a customer's property and production downtime. Smith and a supervisor had directed Gill to hand excavate around marked underground utilities; Gill intentionally disobeyed and trenched the area. He was neither terminated nor suspended. As discipline for his conduct, Smith issued Gill a written warning for conduct violations of carelessness, insubordination and safety, and required him to pay one half of the cost to repair the damage to the customer's property. McNew was hired as a journeyman and failed a drug screen test, but Smith allowed him to take a second drug screen test, which he passed. Albrecht, a helper-apprentice, also tested positive for drugs. Instead of terminating him, Smith allowed him to retake the test two months later. Reddick falsified a worker's compensation claim in order to obtain worker's compensation benefits. Another employee reported him to Smith, Smith confronted him, and Reddick confessed. Because Reddick was "fairly forthright and straightforward" (Smith Dep. at 126) and said he would pay the claim, Smith did not terminate him. Reddick repaid the claim.
III. Discussion
A. Hostile Environment Claim
Efficient moves for summary judgment on the § 1981 hostile environment claim. In response, Wright indicates that he has abandoned this claim. Therefore, summary judgment will be granted Efficient on this claim.
B. Discrimination Claim
Efficient moves for summary judgment on Wright's § 1981 race discrimination claim. Assuming Wright had a contractual relationship with Efficient, such that he may pursue a claim under § 1981, it is appropriate to analyze his race discrimination claim under the same standards applicable to a Title VII race discrimination claim. See, e.g., Alexander v. Wis. Dep't Health Human Servs., 263 F.3d 673, 681-82 (7th Cir. 2001) (noting that Title VII and § 1981 claims are analyzed in the same manner); Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998) (same standards applicable to Title VII claims apply to § 1981 claims).
Because Wright offers no direct evidence of race discrimination, he must rely on the familiar McDonnell Douglas framework, see McDonnell Douglas v. Green, 411 U.S. 792 (1973). Gonzalez, 133 F.3d at 1031-32. To prove a prima facie case of discrimination, Wright must show that (1) he was a member of a protected class; (2) he was meeting Efficient's legitimate performance expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated employees outside of his protected class. Dunn v. Nordstrom, Inc., 260 F.3d 778, 784 (7th Cir. 2001); Gonzalez, 133 F.3d at 1032. If Wright can establish a prima facie case, Efficient bears the burden of producing a legitimate, nondiscriminatory reason for his termination. Hall v. Bodine Elec. Co., 276 F.3d 345, 357-58 (7th Cir. 2002); Dunn, 260 F.3d at 784; Gonzalez, 133 F.3d at 1032. If Efficient does so, then the burden shifts back to Wright to offer evidence that its reason is pretextual. Id.
In moving for summary judgment, Efficient contends that Wright cannot make out a prima facie case of race discrimination primarily because he cannot prove element (4).
Efficient also seems to suggest that Wright cannot prove element (3). Though some of the disparate treatment about which Wright complains would not rise to the level of a materially adverse employment action, it is undisputed that Wright was terminated, which is probably the ultimate adverse employment action. Thus, whether Wright can demonstrate a prima facie case of race discrimination depends on his ability to prove that similarly situated Caucasian employees were treated more favorably.
Wright identifies four Caucasian employees he claims meet this bill: Kelly Gill, Jay McNew, Allan Albrecht, and Allen Reddick. Consideration of the evidence, however, reveals that none of them was similarly situated to Wright.
Wright argues that these employees engaged in conduct of comparable seriousness, sufficient to warrant suspension or termination under Efficient's discipline policy, but received greater leniency than did he. The evidence reveals that Reddick engaged in conduct for which Efficient's policy provides for suspension without pay or termination. So in that one respect, Reddick and Wright may be similar. The same cannot fairly be said of the others. Though both McNew and Albrecht failed a drug screen, there is no evidence that they were "under the influence of, using, selling, distributing or possessing alcohol or a controlled substance during working hours." Thus, there is no evidence that they violated the rule Wright claims they violated. As for Gill, Wright states only that he "arguably" violated the rules regarding willful damage to property and gross insubordination. Even if Gill arguably violated these rules, Wright has cited no evidence to establish that Efficient believed he violated these rules. Wright, on the other hand, actually was charged with a rule violation for which suspension without pay or termination will result.
Even assuming that the comparables engaged in misconduct of similar seriousness, this alone is not enough. "More evidence than the mere fact that other employees were not discharged for at best arguably similar misconduct must be demonstrated to sustain a charge of intentional discrimination." Hiatt v. Rockwell Int'l Corp., 26 F.3d 761, 771 (7th Cir. 1994). Where the plaintiff claims that he was disciplined more harshly than others, he must show that he is "similarly situated to persons outside the protected class with respect to performance, qualifications, and conduct." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000) (citation omitted). "This normally entails a showing that two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct." Id. at 617-18. A plaintiff is not required to show complete identity with a comparable, but must show "substantial similarity." Id. at 618.
Wright cannot show a substantial similarity with his alleged comparables. The conduct in which Gill (carelessness, insubordination, and safety), McNew (failing drug screen), Albrecht (failing drug screen) and Reddick (making a false worker's compensation claim) engaged is not substantially similar to that for which Wright was terminated (failing to perform work). And, these employees did not violate the same rule as Efficient claims was violated by Wright. Moreover, these employees held different positions than Wright. Though Wright disputes that he was working as a leadman at the Prism project at the time of his misconduct, it is undisputed that prior to that time, he had been promoted to leadman, was being paid as a leadman, and thus, held a leadership position within Efficient. The other employees at the site took their direction from him.
When he did not assign them duties, they were able to play games and loaf. Further, since Holycross was not at the jobsite at the time, Wright was the most senior Efficient employee there. Neither Gill, McNew, nor Albrecht was a leadman or had any supervisory or leadership responsibilities at the time of their misconduct.
Though Reddick may have been a leadman when he falsified his worker's compensation claim, Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392 (7th Cir. 2000), suggests he is not similarly situated to Wright. In Spath, the court held that the plaintiff, a disabled former employee, and a nondisabled employee were not similarly situated. Id. at 397. Both initially had given false statements to the employer about the disabled employee's injury, but the nondisabled employee rescinded his false statement, whereas, the plaintiff persisted in giving false statements until his termination meeting when he admitted the truth and on two occasions had falsified written company documents. Id.
Reddick admitted to his misconduct when Smith asked him about it and agreed to repay the claim, and did so. Wright, in contrast, refused to discuss his misconduct with Smith when Smith contacted him at home and claimed Meharg's report that he performed no work during the afternoon was untrue. Thus, Reddick cannot be considered similarly situated to Wright.
Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285 (7th Cir. 1999), does not assist Wright's position. In that case, the plaintiff and a comparable engaged in theft and lying, which are of a substantially similar nature.
Wright has no evidence of similarity to Gill, McNew, Albrecht and Reddick, other than the claimed similarity of the seriousness of their misconduct. Therefore, the court concludes that the evidence does not create a reasonable inference that Efficient treated Wright less favorably than similarly situated Caucasian employees. Consequently, Wright cannot demonstrate a prima facie case of race discrimination, and Efficient is entitled to summary judgment on this claim.
There is yet another reason why Efficient should be granted summary judgment on the race discrimination claim. Though Efficient did not raise the argument in its initial summary judgment filings, in its reply brief it maintains that it had a legitimate, nondiscriminatory reason for terminating Wright, and Wright cannot prove that the reason is a pretext for race discrimination. While the court ordinarily should not grant summary judgment on a ground not advanced by a moving party in its initial papers, Aviles v. Cornell Forge Co., 183 F.3d 598, 604 (7th Cir. 1999), where, as here, the nonmoving party had notice and a fair opportunity to present arguments and evidence in response, the court may rely on that ground in granting summary judgment.
Wright had notice and a fair opportunity to present arguments and evidence in response to Efficient's explanation for his termination. Though Efficient did not initially make the legitimate, nondiscriminatory reason/no pretext argument in connection with the race discrimination claim, it did make this argument in its opening brief in connection with the retaliation claims, and the adverse action is the same with respect to both claims.
Moreover, Wright set forth the McDonnell Douglas framework in his response brief; and, he argued and offered evidence, both in connection with his discrimination claim and his retaliation claims, that Efficient's proffered reason was pretextual. Therefore, the court may consider this basis as an alternate ground for summary judgment.
Efficient explains that Wright was terminated because he failed to perform any work on the afternoon of February 4. Wright concedes that this is a legitimate, nondiscriminatory reason. Thus, the burden shifts back to him to show that this reason is a pretext for race discrimination. Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1032 (7th Cir. 1998).
Pretext does not mean a mistake, but rather, "`a phony reason for some action.'" Logan v. Kautex Textron N. Am., 259 F.3d 635, 640 (7th Cir. 2001) (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995)). Wright must show that Efficient's stated reason for its decision is "unworthy of credence." Logan, 259 F.3d at 640 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)); see also O'Connor v. DePaul Univ., 123 F.3d 665, 671 (7th Cir. 1997) ("On the issue of pretext, our only concern is the honesty of the employer's explanation, and O'Connor has offered no evidence calling that into question here."). To show pretext indirectly, Wright must establish that Efficient's proffered reason is a lie or has no basis in fact. Alexander v. Wis. Dep't Health Family Servs., 263 F.3d 673, 683 (7th Cir. 2001); see also Bell v. E.P.A., 232 F.3d 546, 550 (7th Cir. 2000) ("evidence that calls truthfulness into question precludes summary judgment"); Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000) (stating that the court's "only concern is whether the legitimate reason provided by the employer is in fact the true one.").
Wright urges that a reasonable trier of fact could find that Efficient's explanation for his discharge has no basis in fact. He argues that Smith blamed him for circumstances Smith knew resulted from Smith's own negligence, that is, Smith fired Wright for not working when the work could not be performed until Smith provided the special backboxes for the job. But Efficient does not assert it terminated Wright because he did not do the work for which the backboxes were required. Instead, Efficient explains that Wright was terminated because he did not perform any work the afternoon of February 4. Wright claims he spent time that afternoon reviewing the plans and equipment for the job. But it remains undisputed that he performed no actual work on the site. He didn't even straighten up the material in the back room as he instructed Turk and Norris to do. Further, Wright offers absolutely no evidence to refute the evidence that Meharg complained to Smith that Wright performed no work that afternoon. Nor has he refuted the evidence that Turk admitted to Smith that he and Wright performed no work that afternoon. Thus, there is a basis for Efficient's assertion that it terminated Wright because it believed he had not performed any work the afternoon of February 4.
Wright argues there is a want of evidence that he told anyone not to perform work or otherwise prevented the work of others. Perhaps this is because he focuses solely on the language "the production of others" in the rule which prohibits "deliberate interference with or delaying or restricting of production or the production of others." But the plain language of the rule not only prohibits deliberate interference with, delaying or restricting of the production of others, but also the deliberate interference with, delaying or restricting of production. And, importantly, Efficient does not claim it terminated Wright because he told others not to work or prevented them from doing so. Instead, Efficient explains its termination decision was based on its belief that Wright himself failed to perform any work on the afternoon of February 4.
Certainly, good business sense would dictate that Smith should have been more responsive to Wright's call about the needed equipment. It also is a mistake for a supervisor who errs to punish a subordinate who is affected by the error. But a bad business decision is not necessarily an act of discrimination or retaliation. Moreover, even a poorly supervised employee should be subject to sanctions when he does not work at all, and makes no effort to find useful work to do when a scheduled project is stalled for lack of equipment. The correctness of the decision to sanction Wright is not the question. See, e.g., Guerrero v. Ashcroft, 253 F.3d 309, 314 (7th Cir. 2001) (stating that "we may not punish an employer for choices that constitute business decisions alone, no matter how unwise or mistaken they may seem to us"); Murphy v. ITT Educ. Servs., Inc., 176 F.3d 934, 938 (7th Cir. 1999) ("The personnel decisions of the company may not be good ones, sometimes even harsh, but unless they violate some aspect of federal law, for instance, age, race, or gender discrimination, those business decisions are no business of this court."). Rather, whether Wright has shown that the sanction must have been imposed as a pretext for discrimination or retaliation must be decided.
Wright likens his case to Wohl v. Spectrum Manufacturing, Inc., 94 F.3d 353 (7th Cir. 1996), where the court found a genuine issue of fact as to pretext. Spectrum Manufacturing ("Spectrum") offered two reasons for discharging Wohl: (1) his failure to get along with the general manager and (2) his failure to produce certain computer accounting reports. Id. at 355. The court concluded the evidence raised a genuine issue of material fact as to both these reasons. Id. at 356. Wohl offered his own testimony, corroborated by another witness, that he learned to get along with the manager.
As for the second reason, the evidence supported a finding that Spectrum knew the general manager's actions prevented Wohl from implementing the software system that would allow him to produce the reports. Id. at 356-57. Wright also relied on Courtney v. Biosound, Inc., 42 F.3d 414 (7th Cir. 1994). In Courtney, there was conflicting evidence from which a reasonable jury could find that the company did not honestly believe that the plaintiff-consultant was responsible for a mishap which allegedly caused the company not to hire him. 42 F.3d at 423. This included evidence that another consultant was responsible for the mishap. Id. at 422.
In contrast, in this case, though Smith's inaction prevented Wright from performing the work for which the backboxes were required, the evidence does not support a reasonable inference that Smith's inaction prevented Wright from doing any work at all that afternoon. And again, Efficient does not claim that it terminated Wright for failing to perform the work for which the backboxes were required. Thus, both Wohl and Courtney are distinguishable. Wright also relies on Williams v. Bristol-Myers Squibb Co., 85 F.3d 270 (7th Cir. 1996). This reliance is misplaced. In Williams, the employer claimed it fired the plaintiff for falsification of records within the meaning of the company's code of conduct and because it had fired other, younger employees for falsification. The plaintiff had not falsified the records, but rather had overlooked unauthorized signatures on them. Id. at 273, 275. The court concluded that the code did not support the employer's interpretation and its position that the plaintiff committed the same offense as the others, who, for example, had forged physicians' names on the samples cards, id. at 273, was "so perverse as to cast additional doubt on its good faith." Id. at 275. In addition, the company's misinterpretation was viewed "[a]gainst a background rich with suggestion . . . that the company was out to get [the plaintiff]" because of his age and his complaints about age discrimination. Id. This case is unlike Williams because Efficient has not mischaracterized Wright's conduct; and, even if it had, it does not attempt to make a perverse comparison between his conduct and that of others (only Wright tries to compare his behavior to any other employee's).
Additionally, the evidence fails to create any inference of a "background rich with suggestion" that Efficient was out to get Wright because of his race or, for that matter, protected activity.
Wright argues that he was considered to be a generally good employee and received no prior discipline. What matters, however, is Efficient's assessment of Wright at the time of his termination. See Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1113 (7th Cir. 1998) (stating that "earlier evaluations cannot, by themselves, demonstrate the adequacy of performance at the crucial time when the employment action is taken.").
Finally, Wright believes that Efficient engaged in "overkill" with regard to the sanction it meted out for his conduct and from this a jury could infer pretext, but he has not produced evidence which would raise a reasonable inference that his punishment was grossly excessive in relation to his conduct, or that Efficient ordinarily imposed some lesser sanction on employees who engaged in such conduct. Thus, he has not shown pretext in this way. See Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 290 (7th Cir. 1999) (that punishment is "grossly excessive" alleged infraction "cast[s] doubt on [the employer's] true motive.").
Efficient has articulated a legitimate, noninvidious reason for terminating Wright's employment, and Wright has not produced sufficient evidence to create a triable issue of pretext. This entitles Efficient to summary judgment on the race discrimination claim.
D. Retaliation Claims
As the Seventh Circuit recently clarified, Wright can withstand summary judgment on his retaliation claims in one of two ways. Stone v. City of Indianapolis Pub. Util. Div., No. 01-3210, 2002 WL 234239 (7th Cir. Feb. 19, 2002). The first way is referred to as "the more straightforward" of the two and is unrelated to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. at *2. Under this way, Wright must "present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity . . . and as a result suffered the adverse employment action of which he complains." Id. If Wright's evidence is uncontradicted, then he is entitled to summary judgment. But if his evidence is contradicted, then the case goes to trial, unless Efficient produces unrebutted evidence that it "would have taken the adverse employment action against [Wright] even if [it] had had no retaliatory motive[.]" Id. If Efficient offers such evidence, then it is entitled to summary judgment because it "has shown that [Wright] wasn't harmed by retaliation." Id.
Under the second way, the adaptation of the McDonnell Douglas framework for summary judgment in employment discrimination cases, Wright must "show that after [engaging in statutorily protected activity] only he, and not any similarly situated employee who did not [engage in such activity], was subjected to an adverse employment action even though he was performing his job in a satisfactory manner." Stone, 2002 WL 234239, at *3. If Efficient offers no evidence in response, then Wright is entitled to summary judgment. Id. If, however, Efficient "presents unrebutted evidence of a noninvidious reason for the adverse action, [it] is entitled to summary judgment. Otherwise there must be a trial." Id.
Wright cannot avail himself of the first way of preventing summary judgment. The only "direct evidence" he offers of retaliation is that his discharge occurred two weeks after he aired his complaints about work assignments to Smith. Even assuming his complaints to Smith constituted protected activity, "mere temporal proximity between the [protected activity] and the action alleged to have been taken in retaliation for that [activity] will rarely be sufficient in and of itself to create a triable issue." Stone, 2002 WL 234239, at *3; see also Bilow v. Much Shelist Freed Denenberg Ament Rubenstein, P.C., 277 F.3d 882, 895 (7th Cir. 2001) ("[plaintiff] needs more than a coincidence of timing to create a reasonable inference of retaliation"). As the Seventh Circuit explained: "The mere fact that one event preceded another does nothing to prove that the first event caused the second.
Rather, other circumstances must also be present which reasonably suggest that the two events are somehow related to one another." Bilow, 277 F.3d at 895 (quoting Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000)). Wright has presented no evidence of other circumstances which reasonably suggest that his complaints are related to his termination.
As for the second way, Efficient has offered unrebutted evidence of a noninvidious reason for discharging Wright: its belief that he failed to perform any work on the Prism jobsite the afternoon of February 4. Wright does not dispute that both Meharg, a very good customer, and Turk reported to Smith that Wright had performed no work that afternoon.
Even if Wright spent time that afternoon reviewing the print and materials on the site and received some calls about another job, he has not rebutted Efficient's evidence that it terminated him for not performing work on the jobsite the afternoon of February 4. Thus, Wright's retaliation claims cannot survive summary judgment. Stone, 2002 WL 234239, at *3.
E. Punitive Damages
As for punitive damages, because Efficient is entitled to judgment as a matter of law on Wright's claims, Wright is not entitled to punitive damages. See Millbrook v. IBP, Inc., No. 01-1189, 2002 WL 239090, at *12 (7th Cir. Feb. 20, 2002).
IV. Conclusion
For the foregoing reasons, Efficient's motion for summary judgment will be GRANTED on all claims asserted by Wright. Judgment will be entered for Efficient.