filed a motion to strike, which the court denies without
Plaintiff Donald Flowers was hired by defendant Abex
Corporation in March 1974. (Flowers dep. ex. 2.) He received
promotions, and he eventually became a production supervisor
(or foreman), apparently by May 1976. (Flowers memo filed
1/17/84, p. 5.) Flowers worked at Abex's Chicago Heights Track
Works. (Brenner dep. p. 4.) He was one of the production
supervisors in the "frog" department,*fn1 and he was directly
responsible to Charles Lawson Brenner, Plant Supervisor.
(Brenner aff. ¶¶ 1, 5.) On or about April 1, 1982 Brenner was
directed to eliminate three or four salaried positions.
(Brenner aff. ¶ 4.) Brenner selected Flowers, among others, to
be laid off. (Brenner aff. ¶¶ 11-17.) Flowers alleges that
Brenner's decision was based on Flowers' race, and he sues Abex
in a two-count Amended Complaint. Count I alleges a violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5,
and Count II alleges a violation of 42 U.S.C. § 1981.
It is not clear exactly what happened when Flowers was
informed of Brenner's decision. Apparently, Flowers was to be
placed on permanent lay-off status, but he instead elected to
terminate his employment and collect accrued vacation and
severance pay. (Abex memo filed 11/23/83, p. 4 n.; Flowers
dep. pp. 27-28.) The court need not decide at this point
exactly what happened, since Flowers concedes that his
employment terminated on April 1, 1982, and that he filed his
EEOC charge on December 13, 1982. (Flowers memo filed 1/17/84,
p. 1.) Flowers' EEOC charge thus was untimely. 42 U.S.C. § 2000e-5(e).
Flowers' only argument for relief from the
limitation period is that Abex participated in the EEOC
proceedings and thereby submitted to the jurisdiction of the
EEOC. Flowers cites no authority for the proposition that
participation in EEOC proceedings can waive a defense based on
untimeliness, and the court believes that such a rule would be
detrimental, discouraging reconciliation any time there may be
a timeliness defense. The court notes that Abex raised the
issue of untimeliness before the EEOC, contrary to Flowers'
assertion. (Abex memo filed 1/31/84, ex. A, p. 2; Flowers memo
filed 1/17/84, p. 1.)
Count II is brought under 42 U.S.C. § 1981. To prevail under
this section a plaintiff must prove intentional discrimination.
General Building Contractors Association v. Pennsylvania,
458 U.S. 375, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). Many
courts have found it helpful, in § 1981 cases, to use the order
of proof prescribed for Title VII disparate treatment cases
(which also require proof of intentional discrimination) in
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1983). E.g., Hudson v. IBM,
620 F.2d 351, 354 (2d Cir.), cert. denied, 449 U.S. 1066, 101 S.Ct. 794,
66 L.Ed.2d 611 (1980). Under McDonnell Douglas a plaintiff's
initial burden is to present a prima facie case, giving rise to
an inference of unlawful discrimination. If the plaintiff meets
this burden, then the burden of going forward shifts to the
defendant, to articulate some legitimate, nondiscriminatory
reason why it took the challenged employment action. If the
defendant is able to do so, then the plaintiff may introduce
evidence to show that the employer's articulated reason in fact
was not its reason for taking the challenged action, but
instead was merely a pretext for unlawful discrimination. 411
U.S. at 802-05, 93 S.Ct. at 1824-25. While this procedure
orders the proof and shifts the burden of going forward, the
ultimate burden of persuasion remains with the plaintiff. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253,
101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The court's
ultimate inquiry also remains the same: the court must
determine whether the defendant intentionally discriminated
against the plaintiff. United States Postal Service
Board of Governors v. Aikens, ___ U.S. ___, 103 S.Ct. 1478,
1482, 75 L.Ed.2d 403 (1983).
Because direct evidence of intentional discrimination rarely
is available, McDonnell Douglas permits plaintiffs to make out
a prima facie case indirectly. The showing necessary to give
rise to an inference of unlawful discrimination will depend on
the facts of a particular case. 411 U.S. at 802 n. 13, 93 S.Ct.
at 1824 n. 13. The parties in this case have referred to the
prima facie showing described in Flowers v. Crouch-Walker
Corporation, 552 F.2d 1277, 1282 (7th Cir. 1977). In that case
the Court of Appeals stated that a discharged employee's prima
facie case must include, inter alia, a showing that the
employee was satisfying normal job requirements. Id. at
1282-83. Abex argues that Flowers cannot show he was satisfying
normal job requirements, but the court believes that Abex's
argument is misplaced procedurally. Abex's position is not
really that Flowers was not satisfying normal job requirements.
Brenner stated, at his deposition, that he did not discharge
Flowers because his work was unsatisfactory in an absolute
sense. Instead, Brenner discharged Flowers because he was
required to eliminate three or four salaried positions; he
stated that he selected Flowers because his work was
unsatisfactory relative to the work of the other foremen.
Brenner stated: "Absolutely not, no, sir. I would say that if
it was not for the economy, he would still be working for us."
(Brenner dep. p. 22.) Crouch-Walker clearly holds that relative
inferiority of performance, in connection with a workforce
reduction, is a legitimate, nondiscriminatory reason for
discharge. Id. at 1281. As the court reads
Crouch-Walker, however, relative inferiority goes only to the
defendant's articulation of its reason for discharge; it does
not go to the plaintiff's establishment of a prima facie case.
Especially in view of the passage quoted from Brenner's
deposition testimony, the court must hold that Flowers at least
has raised a genuine issue with respect to satisfactory
performance of his duties.*fn2
Abex's position on this motion is that Brenner selected
Flowers to be among those laid off for economic reasons,
because of the relative inferiority of his performance.
Several particulars are identified. It is said that Flowers'
shift was responsible for low frog productivity, and that
Flowers failed to make necessary corrections in some frogs.
Abex also argues that Flowers often was tardy, and that he
spent too much time on the telephone.
Another possible reason for Flowers' discharge appears from
the evidence of record. An undated, unsigned memorandum
discussing Flowers' performance includes these passages:
All of the years he worked for us he never hired
one white person.
I am told he had at least three fights. All with
white people. . . .
A constant complaint from all non minorities was
that Don would never deal with them.
(Brenner dep. ex. 3.) Brenner has acknowledged that he wrote
this memorandum, but when asked whether he wrote the
memorandum before or after Flowers' discharge, Brenner
answered that he did not know. (Brenner dep. p. 26.)
Flowers has taken issue with these statements quoted from
the memorandum, but Abex, in reply, says this:
Much of the plaintiff's response and affidavit
are devoted to factual issues not even raised by
Abex in connection with its motion for summary
judgment. For example, Mr. Flowers takes issue with
the assertion included in some of the company's
files that the plaintiff refused
to deal with non-minorities (Flowers Aff. pp.
2-3, 5; Plaintiff's Response pp. 6-7). But the
defendant's motion for summary judgment does not
assert this as a basis for Mr. Flowers'
termination, since there are numerous other
grounds as to which the facts are
(Abex memo filed 1/31/84, p. 9; emphasis in original.) The
court cannot accept Abex's reply. Were Flowers suing for
breach of employment contract, then Abex probably could pick
and choose among different grounds that might justify
termination, since Abex's actual motivation would be of little
significance. College Point Boat Corporation v. United States,