which included tellers, was 90% black, 3% other minority, and 7% white. There were 23 terminations from that group in 1982, of which 18, or 79%, were of blacks. During the two years following Glover's termination, the bank hired 23 tellers, including 19 blacks, three whites and one Asian. After Glover's termination, the first eight tellers hired were black. Beginning in 1981, Drexel began a program to reduce the number of employees to approximately 120.
This court appointed counsel for Glover on June 6, 1991 and two additional counsel later entered their appearances on Glover's behalf. On December 12, 1991, while a motion to dismiss the original complaint was pending, the court gave Glover's counsel 14 days to file an amended complaint if he could do so in good faith. No amended complaint was filed within that period, and Drexel's dismissal motion was granted on January 6, 1992. In the same order, however, Glover was given 28 days to file an amended complaint signed by at least one of her attorneys. She was also warned that unless such an amended complaint were filed, the earlier dismissal would be with prejudice. Glover's attorneys then sought, and were allowed, to withdraw on January 17, 1992.
Glover successfully sought a continuance, which was granted on January 24, 1992, giving her until February 28, 1992 to file an amended complaint. She filed her amended complaint on the final day allowed. After Glover failed to appear for a status hearing on March 18, 1992, the case was dismissed for want of prosecution on Drexel's motion. The dismissal, however, was vacated on Glover's motion on March 3, 1992.
Drexel then moved on May 8, 1992 to dismiss, to strike and for summary judgment on laches grounds. In denying that motion on June 15, 1992, the court admonished both parties to proceed with diligence.
Drexel's instant motion for summary judgment was filed on July 10, 1992. On the date Glover's response was due, July 31, 1992, she filed only her instant motion for a continuance, asserting that her involvement in other cases infringed on her time to respond.
As recounted above, Glover has had ample opportunity throughout the litigation to present her case. Both parties have been warned to proceed diligently, yet Glover has failed to offer an adequate justification for her alleged inability to file a substantive response to Drexel's instant summary judgment motion within the time provided. Her motion for a continuance is therefore denied, and the court will address the merits of Drexel's motion.
Summary judgment "shall be rendered forthwith 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 dispute about a material fact is "genuine" if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence in support. Id. "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Accordingly, the non-moving party must go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id. at 324. A "scintilla of evidence" is insufficient; the non-movant must offer evidence on which a jury could reasonably find for him. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). Nevertheless, in deciding whether any genuine issues of material fact exist, the court must draw all reasonable inferences in the light most favorable to the non-movant. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
Glover is asserting a single race discrimination claim under Title VII. A prima facie Title VII case requires showings that the plaintiff is a member of a minority group, that she applied for an open position for which she was qualified, and that she was rejected for the position "under circumstances which give rise to an inference of unlawful discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The elements of proof required will vary in different factual settings. Id. at 253 n.6 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 n.13 (1973)). If the plaintiff meets her prima facie burden, the defendant must produce a "legitimate, nondiscriminatory reason" for failing to hire the plaintiff. Id. at 253-54. Once the defendant has met this burden of production, any presumption of discrimination by the defendant disappears and the plaintiff must then be given an opportunity to show that the defendant's proffered justification is a mere pretext for discrimination. Id. at 255-56. The plaintiff retains the burden at all times of persuading the court that intentional illegal discrimination prevented her hiring. Id. at 256.
Glover claims that she applied for two positions: teller and mail deposit teller. The uncontroverted facts show that Glover was not rehired as a teller because of her physical condition; either she or the bank believed she was physically unable to handle teller work in June 1982. The first eight tellers hired after Glover's termination -- or failure to be rehired -- were all black. There is no evidence in the record showing, or which would allow an inference, of racial discrimination. Moreover, there was no mail deposit teller position at Drexel during the period in question. Glover cannot claim the bank discriminated against her by failing to hire her for a nonexistent job. Even if the court assumes that Glover actually sought the computer-input/account-balancing position filled by Jacquiline Wimberly, it is clear on the present record that Glover was physically unable to perform that job in June 1982 because it required extensive walking and stair climbing.
Additionally, Glover claims that the bank refused to make accommodations for her that it had made for non-black employees with physical problems similar to hers. She has offered no evidence, however, of such discriminatory accommodations.
Drexel has therefore presented sufficient uncontradicted evidence to establish the lack of a prima facie Title VII violation in its termination or failure to rehire Glover in June 1982. Accordingly, Drexel is entitled to summary judgment.
For the reasons stated above, Glover's motion for a continuance is denied and Drexel's motion for summary judgment is granted.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court