In this action, the defendants' arguments fail to persuade us that the state agency was acting in a judicial capacity. The most glaring problem with characterizing the Step 3 Hearing as a judicial-like forum is the plaintiff's averment that, after the hearing, Hearing Officer Cellini told Yohannan that he (Cellini) "had to speak with his boss in Springfield before he could render a decision." Pl.'s 12(N) P 21; Pl.'s Aff. P 34. Yohannan's averment stands undisputed by the defendants, and this sort of non-public consultation is not the sort of judicial-type or administrative law judge-like independence required to characterize the state agency's process as "judicial." Indeed, the defendants label the Director of Central Management Services as the "final decisionmaker," Defs.' Reply at 6, but fail to inform us what access, if any, the plaintiff had to a forum in which he could present evidence or argument to the Director.
Additionally, even if we step back to the defendants' first contention that the Step 3 Hearing is the relevant decision for res judicata purposes, Defs.' Br. at 7, the defendants fail to explain the nature of the Hearing in sufficient detail. For example, the defendants do not answer whether the Hearing Officer had the power to subpoena witnesses and evidence or whether the Hearing Officer could authorize discovery, see Pirela v. Village of North Aurora, 935 F.2d 909, 914 (7th Cir. 1991) (Illinois Administrative Review Act granted Village police board subpoena and discovery powers), or whether Yohannan had an opportunity to submit memoranda of law to the Hearing Officer, see Reed v. AMAX Coal Co., 971 F.2d 1295, 1300 (7th Cir. 1992). Indeed, the defendants' arguments leave unclear whether Yohannan could even raise the race discrimination issue; although we know a Civil Service Commission hearing officer could consider such an issue, see Welch v. Johnson, 907 F.2d 714, 725-26 (7th Cir. 1990), we also know that the Step 3 Hearing was in lieu of a Civil Service Commission appeal. In sum, we cannot resolve the applicability of res judicata on the present record, indicating to us that the parties have not tried this issue by consent. Accordingly, the defense is waived and summary judgment on this basis is inappropriate.
B. Official and Individual Capacities of Ann Patla
Next, the parties attempt to address the scope of the suit as against Defendant Ann Patla, the Director of the Department of Mental Health & Developmental Disabilities. In her official capacity, the suit simply seeks relief against the State of Illinois and is thus limited to injunctive relief. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). In addition, the State is subject to suit under both § 1981 and § 1983, although the distinction between the elements of the two statutes is unimportant in this suit. Prior to the Civil Rights Act of 1991, § 1983 was the exclusive cause of action against state actors for violations of the right against nondiscrimination in § 1981. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731, 733, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989). Section 1981(c) now provides that "the rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c) (emphasis added). Accordingly, a § 1981 cause of action may now be brought against state actors, see Federation of African American Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996), although the elements of the § 1981 cause of action overlap those of § 1983; both require intentional discrimination and that the challenged governmental action be under color of law, see id. at 1215.
As for the plaintiff's putative suit against Patla in her individual capacity, we hold that she is not even a party in this suit in her individual capacity. The caption of Yohannan's Complaint expressly names three persons "individually," while naming Patla as Director of the Department. Then, the Complaint alleges, "The Defendants, ANN PATLA, DIRECTOR OF THE ILLINOIS DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENT DISABILITIES et. al are governmental agencies authorized to do business in the State of Illinois. The Defendants have continuously and do now employ more than five hundred (500) employees . . . ." Compl. P 5. At the same time, the other defendants are described as "individual[s]." Compare id. P 5 with id. PP 6-8. Most importantly, the record reflects service or process only upon the Department and individuals Manuel Duran, Jackie Crilly, and Dale Awick. See Docket Entries 2-5. Accordingly, this suit does not name Patla in her individual capacity.
C. Evidence of Discrimination
As for the remaining individual defendants, we conclude that there exists no genuine issue of material fact as to whether they subjected Yohannan to intentional race or national origin discrimination. With no direct evidence of discrimination, Yohannan tries to prove a prima facie case of discrimination under McDonnell Douglas : (1) he belonged to a protected class, (2) he performed his job satisfactorily, (3) he suffered an adverse employment action, and (4) his employer treated similarly-situated employees outside his classification more favorably. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Once a prima facie case is proven by a preponderance of the evidence, a burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason. Once a defendant adequately articulates a legitimate, nondiscriminatory reason for the employment action, the plaintiff must produce evidence from which a reasonable trier of fact could conclude that the articulated reason is a pretext. See Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1404 (7th Cir. 1996). Where the proffered reason represents the same reason for the plaintiff's alleged failure to prove a prima facie case, we may eschew mechanistic devotion to the McDonnell Douglas burden-shifting analysis and proceed directly to inquire whether the plaintiff has met his burden of production to show pretext. See id.; see also Taylor v. Canteen Corp., 69 F.3d 773, 780 (7th Cir. 1995).
In the instant action, the defendants maintain that Yohannan's sleeping-on-duty infraction triggered disciplinary action against him. As we explained above, Duran reported what he perceived as a sleeping-on-duty violation. Defs.' 12(M) P 12. Crilly and Awick claim that, when considering what sanction to impose, they considered Yohannan's prior disciplinary record, including the first sleeping on duty offense, and the particular danger posed by sleeping on duty during the third shift, when staffing is minimal. Id. PP 15-16. In order to show that the defendants' articulated reason for the discharge is pretextual, Yohannan points to evidence that he claims shows similarly situated Kiley employees who were not disciplined as harshly for second sleeping-on-duty offenses. To that end, the plaintiff relies upon a chart, compiled by Kiley's current Labor Relations Administrator, showing the discipline imposed upon Kiley employees with at least two sleeping-on-duty offenses (all of whom were not Asian-American). Pl.'s 12(N), Ex. R; Defs.' 12(M), App. F. Four of the seven employees were discharged, but the plaintiff argues that three of the four actually were not discharged until at least their third sleeping-on-duty offense, Pl.'s 12(N) PP 69-71, although the defendants explain why certain prior offenses could not or were not considered, Defs.' 12(N)(3)(b) Resp. PP 69-71. Yohannan also points to the other non-discharged employees as evidence of discrimination, although the defendants supply a variety of reasons to explain why those employees received suspensions rather than discharges, Defs.' 12(N)(3)(b) Resp. PP 67, 72-73.
Yohannan's reliance on the chart is fatally flawed because he presents no evidence as to who actually decided the disciplinary sanctions levied upon the other assertedly similarly-situated employees. See Timms v. Frank, 953 F.2d 281, 287 (7th Cir. 1992) ("It is difficult to say that the difference was more likely than not the result of intentional discrimination when two different decision-makers are involved."). In other words, Yohannan cannot rebut the defendants' articulated reason for his discharge by merely generally pointing to the treatment of other employees at Kiley without linking those decisions to the individual defendants. When pressing claims against the individual defendants, it is meaningless to speak in terms of the non-existent mental state of the "Kiley Mental Health Center"; rather, the plaintiff must show that the individual defendants intentionally discriminated against him.
Because the plaintiff fails to establish the defendants, or indeed any individuals, as the pertinent decisionmakers for the other employees,
the defendants' articulated, legitimate nondiscriminatory reason stands unrefuted. Accordingly, we enter summary judgment in their favor.
For the reasons discussed above, we grant summary judgment for the defendants as to all counts. It is so ordered.
MARVIN E. ASPEN
United States District Judge