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LACY v. AMERITECH MOBILE COMMUNS.

April 29, 1997

HEAROLD LACY, Plaintiff,
v.
AMERITECH MOBILE COMMUNICATIONS, INC., Defendant.



The opinion of the court was delivered by: COAR

 Defendant Ameritech Mobile Communications, Inc. ("defendant," "Ameritech Cellular," or "the company") has moved for summary judgment on plaintiff Hearold Lacy's ("plaintiff" or "Lacy") complaint alleging race discrimination, sex discrimination, sexual harassment, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq. ("Title VII"). For the following reasons, the motion will be granted.

 I. Factual Background

 A. The Parties

 Defendant, Ameritech Cellular, is in the business of providing cellular telephone, paging, and other communications services throughout the Midwest. (12(M) Stmt., P 1). In December 1990, Ameritech Cellular hired plaintiff, Hearold Lacy, as a customer service representative ("CSR"). (12(M) Stmt., P 14). Lacy is an African-American male. (Am. Compl., P 1).

 In order to perform their jobs, CSRs generally sat in cubicles in front of computer terminals and wore headsets to answer telephone inquiries from customers. (12(M) Stmt., P 4). CSRs were expected to follow the daily and weekly schedule, which specified start times, break times, lunch periods, and ending times. CSRs were permitted an hour for lunch and a 15-minute break in the morning and afternoon. (12(M) Stmt., P 5). The schedule also incorporated "downtime" (one-half hour in the morning and afternoon), during which CSRs could do paperwork and make follow-up calls to customers. (12(M) Stmt., P 7). When not on break, at lunch, on downtime, or on an approved project, CSRs were required to be "on-line" and ready to take customer telephone calls. If a CSR needed to leave his desk when he was scheduled to be taking customer calls, he was expected to contact the daily "duty manager" (unless he was leaving his cubicle to perform customer service functions for a customer who was currently on the line). (12(M) Stmt., P 8; 12(N) Resp., P 8). An important part of a CSR's job was following the schedule. If a CSR was late for work or did not otherwise follow the schedule, it hindered the company's ability to efficiently answer customer questions. (12(M) Stmt., P 9).

 Each CSR reported to a customer service manager. Each customer service manager supervised a group of ten to fifteen CSRs. The customer service managers would occasionally monitor the calls handled by the CSRs. (12(M) Stmt., PP 10, 12). Lacy was directly supervised by the following customer service managers: Minnie Hundley (December 1990 to February 1991), Carolyn Mitchell (February to May 1991), Joe Schnaufer (May 1991 to June 1992), and Tim Riordan (June to November 1992). The customer service managers reported to Rita Smith, assistant director of customer service. Smith reported to Robert Leger, director of customer service. (12(M) Stmt., PP 13, 16).

 B. Plaintiff's Job Performance1

 Lacy understood that it was important to follow the work schedule set by the company. (12(M) Stmt., P 15). Nevertheless, Lacy arrived late for the beginning of his shift at least six times in 1991, (12(M) Stmt., PP 24-26, 39, 40, 49), *fn2" and at least ten times in 1992, (12(M) Stmt., PP 52, 53, 59-61, 63, 66, 68, 71, 74). *fn3" Lacy was also late returning from his lunch, breaks, or downtime or was otherwise unavailable to take customer calls on at least two occasions in 1991, (12(M) Stmt., PP 45, 51), *fn4" and at least eleven occasions in 1992, (12(M) Stmt., PP 57, 64-67). *fn5"

 On September 10, 1991, Schnaufer and Smith issued Lacy a "counseling statement." (12(M) Stmt., P 41). A counseling statement is a formal written document outlining an employee's performance deficiencies and what action must be taken by the employee to correct those deficiencies. A counseling statement is a serious disciplinary action. (12(M) Stmt., P 30). The September 1991 counseling statement was motivated by Schnaufer's and Smith's belief that Lacy had been absent from work eleven times and tardy from work six times between January 1 and September 1, 1991. (12(M) Stmt., P 41).

 Finally, Riordan drafted a counseling statement for Lacy dated October 29, 1992 because Lacy had accumulated a large number of absences and tardies in 1992. However, this counseling statement was never issued because it was determined that Lacy would be terminated in the workforce re-sizing. (12(M) Stmt., P 73).

 C. Plaintiff's Application for Promotions and Complaints of Discrimination

 Lacy applied for promotions and departmental transfers in May and June 1991. (Am. Compl., PP 13-14). Smith and Schnaufer told him that he was ineligible to be considered for a promotion in 1991 because he had not been a CSR for one year. (12(M) Stmt., P 107). In addition, Schnaufer also told Lacy in 1991 that Lacy could not apply for a promotion because his performance was not satisfactory, and, after September 1991, because he was on a counseling statement. He was also denied a promotion to the position of Manager, Customer Service on June 16, 1992. (Am. Compl., Exh. A (EEOC Charge)). Schnaufer testified that he told Lacy that "he had to have above average performance in all of the customer service consultant criteria" to be considered for a promotion. (12(M) Stmt., P 108).

 Beginning in June 1992, Lacy began complaining to individuals at Ameritech Cellular about discrimination. In June 1992, Lacy told Robert Leger, director of customer service, that African-Americans and male employees were being discriminated against in regard to promotions. (12(M) Stmt., P 129). In July 1992, Lacy met with Fred Fortier, assistant director EEO/AA, and told him that Rita Smith (who is African-American) "favored white employees in terms of promotion." (12(M) Stmt., P 132). In a letter to Fortier dated August 3, 1992, Lacy stated that minorities and men had been discriminated against at Ameritech Cellular in regard to promotions. (12(M) Stmt., P 133).

 D. Workforce Re-Sizing and Lacy's Termination

 In mid-1992, Ameritech Cellular's parent company, Ameritech Corporation ("Ameritech"), decided to analyze the performance of its workforce and determine whether employees without the necessary skills and record of performance should be terminated. (12(M) Stmt., P 85). Ameritech articulated detailed criteria and procedures for the selection process. (12(N) Resp., P 86; 12(M) Stmt., P 86). In order to determine the workers to be terminated, Ameritech Cellular first ranked employees in certain salary grades based on their 1991 and 1990 performance reviews. (See Plaint. Exh. 34 ("AMCI Resizing Process" and "Selection Criteria"); 12(M) Stmt., P 87). All Ameritech Cellular CSRs were ranked by the human resources department along with all other employees in salary grades 4-8. (12(M) Stmt., P 93). The number of employees ranked in those grades totaled 358. Fifty-seven CSRs were ranked as part of that group. (12(M) Stmt., P 93).

 After the initial rankings were completed, each department was asked to review the rankings. Department managers could move employees up or down on the ranking list based on their 1992 job performance. (12(M) Stmt., P 88). Lacy understood that the determination of whether an employee would be terminated would be based on his job "performance, leadership abilities, skills, and the ability to be a part of the team." (12(M) Stmt., P 89).

 Eleven Illinois CSRs were discussed by the customer service managers because their 1991 performance was rated a "3". The three lowest ranked employees -- in descending order -- were Lacy, David Pope (African-American), and Janice Elliot-Rivera (African-American). (12(M) Stmt., P 94). The customer service managers agreed that, based on her 1992 performance, Elliot-Rivera should remain the lowest-ranked CSR. The managers also agreed that Pope's performance had improved in 1992 and that his ranking should be raised. The managers also decided that the performance of a fourth CSR, Jeannette Sielski (white), had deteriorated in 1992 and that her ranking should be lowered. Finally, the managers agreed that no change in Lacy's ranking was warranted based on his 1992 performance. Therefore, after this meeting, the three lowest ranked CSRs were Lacy, Elliot-Rivera, and Sielski. (12(M) Stmt., P 95). These were the Illinois CSRs that were terminated as a result of the workforce re-sizing. (12(M) Stmt., P 96).

 Lacy was permitted to appeal his termination, which he did on November 16, 1992. Fred Fortier, assistant director EEO/AA, investigated Lacy's appeal and found no evidence to support Lacy's claims. Fortier recommended that Lacy's appeal be denied. James Riecks, director of human resources, denied Lacy's appeal on December 18, 1992. (12(M) Stmt., P 99).

 E. Smith's Alleged Sexual Harassment

 Lacy testified that Rita Smith is the only person at Ameritech Cellular who sexually harassed him. (12(M) Stmt., P 118). Lacy testified that this harassment began at a meeting in February 1991, in which Smith sat down next to Lacy, touched his arm, and commented on his watch. Lacy has also testified that Smith positioned her chair at this meeting so that her thigh would brush up against his thigh. (12(M) Stmt., P 119). In March 1991, Smith asked Lacy to come to her office. Behind closed doors, Smith asked Lacy to "express his feelings" and tell her everything he felt about "everything and everybody." (12(N)(3)(b) Stmt., P 71; Plaint. App., Exh. 2, at 5). In a letter to Ameritech Cellular, Lacy later stated that Smith's "voice tone made [him] very uncomfortable" and that he viewed the words "everything" and "everybody" as slightly suggestive. (Plaint. App., Exh. 2, at 5).

 In April 1991, Lacy attended a company-sponsored party at a nearby restaurant. During a conversation with Lacy, Smith asked him if he was married, for how long, and how he had kept his wife "satisfied." (12(M) Stmt., P 120; 12(N) Resp., P 120). According to Lacy, Smith also said that if she had enough drinks, she would do "crazy and wonderful things," which Lacy interpreted as a request for sex. Lacy testified that this conversation made him very uncomfortable. (12(M) Stmt., P 120).

 In August 1991, Smith telephoned Lacy from her car phone to discuss why he had abruptly left a company outing at Arlington Park race track. During this conversation, Smith told Lacy that he was a "very interesting man," which made Lacy very uncomfortable. (12(N)(3)(b) Stmt., P 73). In a meeting on September 10, 1991, Smith told Lacy that if he were friendlier and learned to socialize with his co-workers (including Smith), that things would be better for him. Lacy interpreted these comments as a request for a date and for sex. (12(M) Stmt., P 121). Lacy also testified that the comments upset him and that he feared that he would lose his job if he did not enter into a social relationship with Smith. (12(M) Stmt., P 122).

 Finally, Lacy testified that he interviewed with Smith for a customer service manager position in May 1992. Allegedly,

 
Smith said that she wanted [Lacy] to remember the things that she had told [him] previously about her ability to assist [him] in terms of [his] career, and she repeated the fact that she wanted [Lacy] to think about it carefully and to think about changing [his] view, [his] conservative views about relationships with fellow employees, and she felt that if [he] were to do so, it would go a long way towards [his] being considered for the management position that [they] were discussing.

 (12(M) Stmt., P 124).

 It is disputed whether Lacy informed Ameritech Cellular of Smith's sexual harassment prior to his termination. (See 12(M) Stmt., PP 125-139; 12(N) Resp., PP 132, 133, 135).

 F. EEOC Charge and Allegations of the Complaint

 Lacy filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on February 24, 1993. (12(M) Stmt., P 140). Lacy's EEOC charge does not contain allegations that he was denied promotions in 1991 based on his race or sex. (Am. Compl., Exh. A (EEOC Charge)). *fn6" Plaintiff received a right-to-sue letter on April 29, 1995. (Am. Compl., P 6). On July 26, 1996, plaintiff filed an Amended Complaint alleging sex discrimination, race discrimination, sexual harassment, and retaliation, in violation of Title VII.

 II. Summary Judgment Standards

 Summary judgment is proper "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); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the movant satisfies this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553.

 Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. at 2552-53; Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. The question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

 Finally, these summary judgment standards are applied "with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995) (citing Courtney v. Biosound, Inc. , 42 F.3d 414, 418 (7th Cir. 1994)). Accordingly, "affidavits and depositions must be carefully ...


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