58. Neal did not graduate from high school. (See stipulated Fact No. 40 of the Pre-trial Order).
59. Neal claimed he graduated from high school on his Alden Press employment application. This fact was not a factor in the decision to terminate.
60. On his R. R. Donnelly & Sons Company employment application dated July 22, 1991, Neal claimed he graduated from high school and that the reason he left Alden Press in 1989 was because of "layoff." (See Jt. Ex. No. 9).
61. Neal smoked tobacco cigarettes in October of 1990.
62. On his Field Container employment application dated October 16, 1990, Neal claimed he graduated from high school, that he left Alden Press because of "layoff," and claimed he did not use or smoke tobacco products. (See Jt. Ex. No. 10).
63. On his NewsWeb employment application dated April 20, 1992, Neal claimed he graduated from high school, that he left Alden Press because of a "new job," and claimed that he had never been fired from employment. (See Jt. Ex. No. 11).
64. On October 21, 1986, Neal filed with the Illinois Department of Human Rights a charge of discrimination (IDHR charge No. 1987 CF 1131), which is attached to his complaint.
65. In his charge of discrimination filed on October 21, 1986, Neal states in Section III.H. that during his termination meeting on September 5, 1986, he "mentioned the incident with Makelowickz [Michalek] and told them [Pease and Wilson] that Respondent is practicing racial discrimination in its policy and practice of not promoting blacks." No other complaints of race discrimination allegedly made to Alden Press are mentioned in Neal's charge of discrimination. (See charge of discrimination attached to Neal's complaint).
CONCLUSIONS OF LAW
Count I of Neal's Complaint
Neal has waived any right to relief under this Count and therefore it is dismissed with prejudice. (See "Waiver of Claims or Defenses" in the Pre-Trial Order).
Count II of Neal's Complaint
1. Neal's accusation that Schneider is a bigot, made before Neal's discharge on September 5, 1986, is not protected speech under Title VII.
2. Neal's statement to Fallico that he was "nobody's fucking nigger," made on August 28, 1986, is not protected speech under Title VII.
3. Neal did not engage in protected speech prior to his termination meeting on September 5, 1986.
4. Neal's accusation that Schneider is a bigot is not causally related to Neal's discharge.
5. Because the decision to terminate Neal was made prior to his termination meeting, Neal failed to establish that his alleged expressions to Alden Press and its employees made during the termination meeting are causally related to Neal's discharge. Maldonado v. Metra, 743 F. Supp. 563 (N.D. Ill. 1990).
6. Neal did not produce sufficient evidence to establish a prima facie case of retaliation under Title VII. Jennings v. Tinley Park Community, 796 F.2d 962, 966 (7th Cir. 1986).
7. Alden Press's reasons for discharging Neal are legitimate and non-discriminatory.
8. Alden Press's business reasons for discharging Neal are not pretextual.
9. Alden Press did not retaliate against Neal when it discharged him.
Count III of Neal's Complaint
10. Neal did not produce sufficient evidence to establish that he was performing well enough to meet Alden Press's objectives.
11. Alden Press's discharge of Neal was not discriminatory because Neal was discharged for his insubordination, disruptive behavior, and leaving work without a legitimate reason the night of August 28, 1986; for his unexcused absence starting on August 29, 1986; and for his self described "bad attitude" that he claimed would not change. Thrailkill v. Aero Drapery Corp., 1991 U.S. Dist. LEXIS 7991 (N.D. Ill. June 13, 1991) (LEXIS, Genfed Library, Dist. File) (citing Palucki v. Sears, Roebuck and Co., 879 F.2d 1568, 1571 (7th Cir. 1989)).
12. Neal did not produce sufficient evidence to establish a prima facie case of discharge based on race under Title VII pursuant to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and its progeny.
13. Neal's "comparative" evidence does not prove that Neal was treated disparately because of his race. Neal has not established that any other non-black Alden Press employee was similarly situated to him and treated differently.
14. Alden Press's reasons for discharging Neal are legitimate and non-discriminatory.
15. Alden Press's business reasons for discharging Neal are not pretextual.
16. Alden Press did not racially discriminate against Neal when it discharged him.
The court has followed the burden-shifting formula for determining discrimination claims under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under this formula, a plaintiff bears the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination by showing: (1) he or she was a member of a protected class; (2) he or she was satisfactorily performing the duties of her position; (3) he or she was discharged; and (4) others not in the protected class were treated more favorably. Jones v. Jones Bros Constr. Corp., 879 F.2d 295, 299 (7th Cir. 1989). Once a Neal meets that burden, the burden shifts to the defendant "to articulate a legitimate, non-discriminatory reason for its action." Id. If the defendant meets this burden, the presumption of discrimination is dissolved, and the burden shifts back to the Neal to prove the defendant's actions were a pretext for discrimination "by showing either that a discriminatory reason more likely than not motivated the employer or that the employer's proffered explanation is incredible." Oxman v. WLS-TV, 846 F.2d 448, 453 (7th Cir. 1988). The Neal may show the defendant's proffered reasons are incredible by showing that "(1) they have no basis in fact, or (2) they did not actually motivate the employer's decision, or (3) they were insufficient to motivate the discharge." Jones, 879 F.2d at 299. Although this analysis outlines a shifting burden of production on the parties, the ultimate burden rests with the employee to prove that the employer intentionally discriminated against the employee. Williams v. Williams Electronics, Inc., 856 F.2d 920, 922 (7th Cir. 1988).
Count I is dismissed with prejudice. The court finds for Alden Press and against the Neal on Count II and Count III, and enters judgment pursuant to Rule 58.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
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