OPINION AND ORDER
CHARLES R. NORGLE, SR., District Judge:
Before the court is the motion of Defendant Azcon Corporation ("Azcon") for summary judgment. For the following reasons, the motion is granted.
Plaintiffs Delester Pollard ("Pollard"), Joshua Davis ("Davis") and James Turner ("Turner") filed suit in federal court alleging that Azcon wrongfully terminated them due to their race and ages in violation of Title VII and the Age Discrimination in Employment Act ("ADEA") respectively. Azcon operates a steel scrap yard in Hegewisch, Illinois ("Hegewisch Yard") . As part of its operation, Azcon dismantles rail cars, processes the scrap steel into small segments, and ships the scrap to steel foundries and mills for re-melting and recycling purposes.
All three Plaintiffs are African-American males previously-assigned to the Hegewisch Yard under the direction and supervision of Joseph Wydajewski ("Wydajewski"), the yard superintendent. Prior to September 1992, Davis and Pollard worked as rail breaker operators,
and Turner worked as a burner.
On September 16, 1992, Wydajewski observed Davis and Pollard asleep in and near the rail breaker to which they were assigned. Wydajewski stated in a deposition that he had witnessed both Plaintiffs sleeping for five to ten minutes. Although both Davis and Pollard now deny that they were sleeping, they both admit that they were sitting down and not working. This was the first time Wydajewski had ever found a subordinate sleeping at the Hegewisch Yard. Wydajewski sent Davis and Pollard home and instructed them to attend a meeting in his office the next morning. Both Davis and Pollard left the job site without ever denying that they were sleeping.
The next morning, Wydajewski met with Davis and Pollard. Both were given a written warning and a four-day suspension pending a final determination as to whether the two would be discharged from employment. Wydajewski then met with Richard Shure ("Shure"), a Vice President of Azcon, and both decided to terminate Davis and Pollard. On September 18, 1992, Azcon notified the two Plaintiffs that the suspension would be changed to a discharge effective September 23, 1992. The method of discharge utilized by Azcon was at all times in accordance with the Collective Bargaining Agreement between Azcon and the United Steelworkers of America AFL-CIO Local 5544-37 ("CBA"). At the time of their discharges, Davis was 55 years old and Pollard was 51 years old.
When Azcon terminated Davis, it assigned Davis' former position to Turner. Prior to changing positions, on December 17, 1991, Turner, without giving prior notice, failed to report to work. As a result, Wydajewski gave Turner a written warning. On March 11, 1992, Turner reported to work late. Again, Turner failed to give prior notice and, therefore, received a second written warning. On March 17, 1992, Turner failed again to report to work, and did not give notice of his absence. He received a third written warning. In addition to the warning, Wydajewski gave Turner a one-day suspension without pay, and warned Turner that a similar subsequent violation could result in discharge. On October 9, 1992, less than a month after becoming a rail breaker operator, Turner again failed to report to work and properly notify his superior. As a result, Turner received a fourth written warning and a four-day suspension pending a discharge determination. Wydajewski then met with Shure, and both decided to terminate Turner effective October 19, 1992. Turner, who was 62 years old at the time of termination, contends that he did give notice on October 9, 1992, although he cannot remember to whom he gave the notice. In place of Turner, Azcon assigned Felipe DeHaro ("DeHaro"), a 45-year-old Hispanic male, as an interim rail breaker operator.
On October 5, 1992, Pollard and Davis both filed grievance reports in accordance with the terms of the CBA. Both claimed they were suspended and discharged without just cause.
In accordance with the CBA, both parties agreed to go before an impartial arbitrator. After a one-day hearing, the arbitrator found that Davis was terminated for just cause, but that Pollard was terminated unjustly. The arbitrator instructed Azcon to reinstate Pollard retroactively, with back-pay, after a thirty-day suspension without pay. Pursuant to the ruling of the arbitrator, Azcon reinstated Pollard in June 1993 with back-pay, retroactive to October 23, 1992, and with full seniority and benefits. In reliance on the arbitrator's decision, Azcon did not reinstate Davis.
On September 25, 1992, Davis and Pollard filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On October 22, 1992, Turner filed a Grievance Report pursuant to the CBA, contending that his discharge was too severe a penalty. On December 17, 1992, Turner filed a Charge of Discrimination with the EEOC. After receiving the requisite "Right to Sue" letter from the EEOC, the three Plaintiffs jointly filed the Complaint on June 11, 1993.
In their Complaint filed with this court, Plaintiffs state that they were repeatedly subjected to the following race and age-based slurs by Wydajewski: (1) "boy"; (2) "if you had the energy of whites, you'd be doing your jobs"; (3) "I will be a thorn in your side for the next 20 years. Someone is waiting for your job"; (4) "I don't want blacks running machines"; (5) "If you people want to be treated like kids, I'll treat you like kids"; (6) "Once I get rid of you old guys, I can get on with running this business the way I want." However, Plaintiffs' three deposition witnesses testified that they never heard Wydajewski make any age or race related comments. All three witnesses were of Hispanic descent. In addition, Azcon deposed two African-Americans, both over the age of 40, and both of whom Wydajewski hired. Both deponents stated that they never heard Wydajewski make any age or race based derogatory comments.
As of September 16, 1992, just prior to the discharge of all three Plaintiffs, Azcon employed 29 people at its Hegewisch Yard. Of the 29 employees, and 22 (76%) were over the age of 40, 10 (34%) were over the age of 50. In 1994, Azcon employed 27 people, 20 (74%) of whom were over the age of 40, and 8 (30%) of whom were over the age of 50. Wydajewski hired only four employees while acting as yard superintendent: Dan Young, a 51-year-old African-American; Mack Cooper, a 45-year-old African-American; Jesus Rosas, a 38-year-old Hispanic; and Leonard Wydajewski, a 17-year-old Caucasian, presumably a relative.
Rule 56(c) of the Federal Rules of Civil Procedure provides that a 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); Salima v. Scherwood South, Inc., 38 F.3d 929 (7th Cir. 1994). "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). Summary judgment is not a discretionary remedy, it must be granted when warranted. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994) (per curiam). In making a motion for summary judgment, the burden rests with the moving party to demonstrate an absence of evidence to support the position of the non-moving party. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994).
Even though all reasonable inferences are drawn in favor of the party opposing the motion, Associated Milk Producers, Inc. v. Meadow Gold Dairies, 27 F.3d 268, 270 (7th Cir. 1994), the non-moving party may not rest on its pleadings to create a genuine issue. Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991). Rather, the non-moving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). Presenting merely a scintilla of evidence will not suffice to oppose a motion for summary judgment. Walker v. Shansky, 28 F.3d 666, 671 (7th Cir. 1994). The non-movant must cast more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Moreover, the disputed facts must be those that might affect the outcome of the suit to properly preclude summary judgment, First Ind. Bank v. Baker, 957 F.2d 506, 508 (7th Cir. 1992); 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).
The court now turns its attention to the merits of the motion. In general, an employee may be terminated for "any reason, good or bad, or for no reason at all, as long as the employer's reason is not proscribed by a Congressional statute." Kahn v. Secretary of Labor, 64 F.3d 271, 279, 1995 U.S. App. LEXIS 24111, 1995 WL 500670, at *6 (7th Cir. 1995). The Americans With Disabilities Act and Title VII are examples of such Proscriptive statutes. The ADEA
makes it unlawful for employers to engage in the following conduct:
(1) To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.
29 U.S.C. § 623(a). The prohibitions under ADEA apply only to those who have attained the age of forty or older. 29 U.S.C. § 631(a). Any person who is in this protected class and is discriminated against based on age may commence a civil action for legal or equitable relief. 29 U.S.C. § 626(c)(1). Under Title VII of the Civil Rights Act of 1964, an employer may not lawfully "discharge any individual . . . because of such individual's race." 42 U.S.C. § 2000e-2(a)(1).
To establish liability under the ADEA and Title VII, a plaintiff must prove that age and race, respectively, accounted for the employer's decision to terminate the plaintiff. In other words, the issue is whether the same events would have transpired if the employee had been younger than forty or another race. Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir. 1994). A plaintiff, however, need not prove that his age or race was the only factor in the employer's decision to discharge. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993). Rather, an ADEA plaintiff is only required to prove that he would not have been terminated "but for" his age, and a Title VII plaintiff need only prove that he would not have been terminated "but for" his race. Fisher v. Transco Serv. Milwaukee, Inc., 979 F.2d 1239, 1243 (7th Cir. 1992).
There are two methods of proof available to a plaintiff to demonstrate unlawful age and race discrimination. The first method of proof, the direct method, includes the use of direct evidence tending to evince that a plaintiff's race or age was a substantial factor in the discharge decision. Konowitz v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir. 1992). The second method of proof, commonly known as the burden-shifting or inferential method, is outlined in McDonnell Douglas Comp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
In the instant motion, no evidence exists to sufficiently prove that Plaintiffs' ages and races were a "but for" factor in Azcon's decision to terminate them. Thus, the direct method of proof is inapplicable in the instant case, and the court uses the McDonnell Douglas burden-shifting analysis.
There are three phases to the burden-shifting method. In both race and age discrimination, the initial burden of satisfying the first phase is on the plaintiff. The Plaintiffs here must establish a prima facie case of discriminatory discharge by demonstrating that (1) they were members of a protected class (persons over forty or a racial minority), (2) they were performing their job well enough to meet Azcon's legitimate expectations, (3) they were discharged or subjected to a materially adverse employment action, and (4) "that the position was either left open or filled by a [younger employee or Caucasian]." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2747 (1993). For age discrimination, Plaintiffs can satisfy the fourth element by proving that Azcon treated younger, but otherwise similarly-situated, employees more favorably. Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994).
The establishment of a prima facie case creates a rebuttable presumption that the employer's decision to terminate was the result of impermissible factors. Rand v. CF Indus., Inc., 42 F.3d 1139, 1994 WL 712929, at *5 (7th Cir. 1994). This rebuttable presumption shifts the burden (one of production as opposed to persuasion) to the employer to "articulate a legitimate, nondiscriminatory reason for the discharge." Kahn, 64 F.3d 271, 278, 1995 U.S. App. LEXIS 24111, 1995 WL 500670, at *11. This is the second phase of the shifting method. The employer "need not persuade the court that it was actually motivated by its proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Rather, the employer is only required to submit any lawful justification for the termination in question. Id. If the employer fails to offer a legitimate, non-discriminatory reason for its decision to terminate, judgment must be entered against the employer and in favor of the plaintiff. Id.
If, however, the employer satisfies the second phase, the rebuttable presumption is dissolved and the burden of persuasion, not merely production, shifts back to the plaintiff for the third phase. Loyd v. Phillips Bros., Inc., 25 F.3d 518, 522 (7th Cir. 1994). The third phase requires the plaintiff to show that the employer's proffered explanation for the termination amounts to nothing more than a mere pretext for discrimination. Fisher, 979 F.2d at 1243. To meet this burden of production, the plaintiff may either persuade the court that, more likely than not, the discriminatory reason motivated the employer or that the purported explanation is unworthy of credence. Burdine, 450 U.S. at 257, 101 S. Ct. at 1095-96. Thus, under the burden-shifting approach, if a plaintiff convinces the trier of fact that it is more likely than not that the employer did not act for its proffered reasons, then the employer's decision remains unexplained and the inferences from plaintiff's evidence may be sufficient to prove the ultimate fact of discriminatory intent. Oxman v. WLS-TV, 12 F.3d 652, 657 (7th Cir. 1993) (quoting Ayala, 831 F.2d at 1319). However, in a case in which two or more motives were said to be operative in the employer's decision to fire an employee, the employee cannot prevail in a suit against the employer if a lawful reason alone would have sufficed to justify the firing. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 130 L. Ed. 2d 852, 115 S. Ct. 879, 886 (1995) (citing Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 284-87, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977).
First, the court addresses the merits of Davis' claim. Azcon argues that Davis failed to establish his prima facie case in both the age and race discrimination claims. The court agrees.
Davis does satisfy the first and third requirements of the prima facie case--that is, Davis is a member of both protected classes, and Azcon did take an adverse action against him. With regard to the third element, construing the facts in a light most favorable to Davis, the court assumes that his job performance was satisfactory. Whether Davis was sleeping is a disputed issue of material fact necessary to determine whether Davis' job performance was satisfactory.
Notwithstanding, Davis has not provided any evidence to prove the fourth element of the prima facie case. Once Davis was terminated, Wydajewski replaced him with Turner, a 62-year-old African-American. Contrary to Davis' contentions, the evidence shows that he was replaced by an older member within his same age classification, and by a member of his same race. Thus, Davis has failed to establish a prima facie case, and the court enters judgment against him and in favor of Azcon.
Assuming arguendo that Davis had established the prima facie case, he still would not prevail. Azcon has proffered a legitimate, non-discriminatory reason for its termination of Davis; Davis was asleep during work hours and, therefore, was not doing that which he was paid to do--work. The simple articulation of this reason is enough to satisfy Azcon's burden. "Once the employer articulates a legitimate reason for discharge, the presumption shifts--it is assumed that [Azcon] did not discriminate--and [Davis] must demonstrate the [Azcon's] stated reason was pretextual, and that [Azcon's] real reason for the discharge was [age or] race discrimination." Campbell v. AT&T Communications, Inc., 1994 U.S. Dist. LEXIS 9790, No. 91 C 8296, 1994 WL 280620, at *4 (N.D. Ill. July 18, 1994). Davis has not made such a demonstration. Davis relies upon (1) the statements made by himself and his fellow Plaintiffs suggesting that Wydajewski used race-based and age-related derogatory comments, and (2) his own denial of the conduct for which he was terminated, sleeping. However, the allegations of racial and age based slurs are both unsubstantiated and are contradicted by the deposition testimony of former co-workers. Moreover, Davis' self-serving denial that he slept on the job is not enough to defeat a summary judgment motion. In support of his denial, Davis states that a "reasonable jury could find that [he] was merely taking a customary break when there was no work available," and that a "reasonable jury could also find that Wydajewski merely saw [Davis] sitting down and not sleeping as he alleges." However, Davis' own statements and speculation as to what a reasonable jury might find are insufficient:
It is not enough for [the plaintiff] simply to assert that the alleged grounds for [his] termination did not occur. The court's inquiry into pretext focuses not on the actual occurrence of the alleged acts, Timm v. Mead Corp., 32 F.3d 273, 275 (7th Cir. 1994), but rather looks at "whether the employer honestly believes in the reason it offers." Kralman v. Illinois Dept. of Veteran's Affairs, 23 F.3d 150, 156 (7th Cir. 1994) (citing McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992)). Moreover, the issue of pretext "does not address the correctness or desirability of reasons offered for employment decisions." Id.