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MACK v. COUNTY OF COOK

July 21, 1993

ONITA MACK, Plaintiff,
v.
COUNTY OF COOK, CHARLES F. LAGGES, VIJAY PANCHELL and KENNETH Y. SHIH, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the summary judgment motion of defendants Cook County, Charles F. Lagges, Vijay Panchell and Kenneth Y. Shih. For the following reasons, the motion is granted.

 FACTS

 Plaintiff, Onita Mack ("Mack"), was a stenographer IV with the Cook County Department of Environmental Control (the "CCDEC") from July 1, 1987 through March 30, 1990. The CCDEC is the department responsible for determining compliance with county environmental regulations and attending to environmental emergencies. See Tavarez v. O'Malley, 826 F.2d 671, 673 (7th Cir. 1987) (CCDEC inspector responded to carbon monoxide-emitting heater in grocery store); these responsibilities require the maintenance of open and available communications throughout the department and with the public. As part of its telephonic communications system, the CCDEC utilizes a rotating relief system to monitor the telephone switchboard at times when the primary and back-up switchboard operators are absent. Mack was one of eight employees who were assigned to the relief system. On August 16, 1989, Mack refused to cover the switchboard, even though she was scheduled to do so. As a result of her failure to perform her duties, Mack received a five-day suspension, which, after Mack filed grievances and attended appeal hearings, was reduced to two days.

 Unsatisfied with the reduction in her suspension, Mack, who is a black woman, filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on February 5, 1990, alleging racial discrimination. According to Mack, she endured great strain and distress within the office because her fellow employees harassed her by calling her "derogatory names in regards to her race." Despite her allegations, the EEOC found no evidence of discrimination against Mack, and in fact, the EEOC determined that the CCDEC had suspended non-black persons for similar behavior.

 On March 23, 1990, Mack was temporarily assigned to be the backup switchboard operator and was therefore required to relieve the primary receptionist for morning and afternoon breaks and lunch. On March 26, Mack refused to relieve the receptionist for morning break, lunch, or afternoon break. Mack was issued a written warning by the Director of the CCDEC, Charles Lagges, informing her that continued insubordination may lead to dismissal. On March 29 Mack again refused to relieve the receptionist. And she again refused on the thirtieth. As a result of her actions, Director Lagges terminated Mack for gross insubordination.

 Mack filed charges on April 2, 1990 with the EEOC against Cook County with regard to her termination on March 30th, claiming that her termination was racially based and was in retaliation for her previous EEOC filing. The EEOC determined that Mack had been discharged after repeatedly refusing to perform her assignment and that there was no evidence that she had been retaliated against by the CCDEC or by her supervisors. The EEOC issued Mack a right-to-sue letter, and thereafter Mack filed her suit with the court.

 DISCUSSION

 Rule 56(c) of the Federal Rules of Civil Procedure provides that for a party to prevail on a summary judgment motion "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] 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). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir. 1992), a scintilla of evidence in support of the nonmovant's position will not suffice to oppose a motion for summary judgment. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). Instead, the nonmoving party must elucidate specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Moreover, to preclude summary judgment the disputed facts must be those that might affect the outcome of the suit, First Indiana Bank v. Baker, 957 F.2d 506, 508 (7th Cir. 1992), and a dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could 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). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Accordingly, the nonmoving party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).

 To prevail on a racially-based discriminatory discharge claim under Title VII, Mack must prove that she was a victim of intentional discrimination. See Morgan v. Harris Trust & Savs. Bank, 867 F.2d 1023, 1026 (7th Cir. 1989) (per curiam). Mack can satisfy her burden of proof either through direct proof of discriminatory intent, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985), or through the indirect, burden-shifting method of proof articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). These two cases and their progeny have generated two distinct evidentiary paths available to an individual attempting to prove intentional discrimination. Mack has not offered direct evidence of discriminatory intent on the part of Brookfield. See Trans World Airlines, 469 U.S. at 121-22 (rules expressly disfavoring a group based on its protected characteristic constituted direct evidence of discriminatory intent); Maddox v. Grandview Care Center, Inc., 607 F. Supp. 1404 (M.D. Ga. 1985) (special rules for maternity leave were direct evidence of discriminatory intent). Accordingly, she relies on the McDonnell Douglas indirect, burden-shifting method of proof.

 Under the guidelines established by McDonnell Douglas, Mack must initially demonstrate, by a preponderance of the evidence, a prima facie case of employment discrimination. McDonnell Douglas, 411 U.S. at 802. Once established, a prima facie case creates a rebuttable presumption that the employer's actions, if unexplained, were the result of impermissible factors. Chesser v. Illinois, 895 F.2d 330, 333 n.3 (7th Cir. 1990). This rebuttable presumption shifts the burden of production to the employer, which must "articulate some legitimate, nondiscriminatory reason" for the plaintiff's treatment. McDonnell Douglas, 411 U.S. at 802. If the employer fails to offer a legitimate explanation of its actions, judgment will be entered against it, Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981); if, however, the defendant carries its burden, the presumption of discrimination dissolves, and the plaintiff must then show, again by a preponderance of the evidence, that the employer's explanation for dismissal was nothing more than a mere pretext. McDonnell Douglas, 411 U.S. at 804; United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983); Villa v. City of Chicago, 924 F.2d 629, 631 (7th Cir. 1991). The plaintiff bears the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against it, Burdine, 450 U.S. at 253, and as in the case of all presumptions, see Fed. Rule Evid. 301, the ultimate burden of persuasion remains at all times with the plaintiff, St. Mary's Honor Center v. Hicks, No. 92-602, 1993 WL 220265, at *1 (S. Ct. June 25, 1993).

 The critical issue of Mack's prima facie case is whether she was performing well in her job at the time of her termination. See Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 336 (7th Cir. 1991). Mack's performance was not only unsatisfactory but was nonexistent: she completely failed to perform the job that she had been assigned. Mack has introduced evidence that she ably performed her job as a stenographer, receiving good or excellent reviews in areas such as "job skills and techniques," "work habits," "quality of work," and "ability to work with people." The job description of a stenographer IV, however, provides that such employees may be required to temporarily perform duties outside their normal line of work. Thus, although the evidence presented by Mack indicates that she was a competent stenographer, her refusal to participate in the ...


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