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Oates v. Discovery Zone

June 23, 1997

ARTHUR OATES, PLAINTIFF-APPELLANT,

v.

DISCOVERY ZONE, A DELAWARE CORPORATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 6934 Harry D. Leinenweber, Judge.

Before POSNER, Chief Judge, COFFEY and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

ARGUED JANUARY 8, 1997

DECIDED JUNE 23, 1997

Arthur Oates, an African-American, filed suit against his former employer, Discovery Zone, alleging that his discharge from the position of Technical Support Representative at Discovery Zone was racially motivated and thus violated the Civil Rights Act of 1964, Title VII, 42 U.S.C. sec.sec. 2000e et seq. and the Civil Rights Act of 1871, 42 U.S.C. sec. 1981, as well as constituted an intentional infliction of emotional distress. The district court granted summary judgment in favor of Discovery Zone. We affirm.

I. BACKGROUND

A. Factual Background

Discovery Zone is a Delaware corporation which provides entertainment services to children in the form of indoor playgrounds, much like those commonly found in and around fast-food restaurants. The recreation facilities themselves are called Discovery Zone FunCenter stores. From September 1993 to April 22, 1994, Discovery Zone employed Arthur Oates, an African-American, as a Technical Support Representative. In that capacity, Oates was responsible for providing telephonic and personal support, including employee training, to FunCenter stores for their computer systems. While it is unclear from the record whether Oates' primary responsibility was limited to supporting the FunCenter stores' automated cash register systems or involved "support[ing] [the FunCenter stores'] computer systems, the AS/400s, [and] the PCs" on a broader scale, *fn1 the distinction is largely irrelevant for purposes of addressing this dispute. In either event, Oates' position as a Technical Support Representative required him to remedy FunCenter stores' emergency computer-related problems. During his entire tenure at Discovery Zone, Oates reported directly to Bonnie Christenson who, in turn, was under the supervision of Paul Nance prior to April 8, 1994, and Mark McDermott after that date. Both Oates and Christenson worked in Discovery Zone's Rosemont, Illinois, support center; McDermott worked at Discovery Zone's corporate offices located in Chicago.

In early 1994, the Rosemont support center was understaffed, and as a result thereof, often a single employee was called upon to handle all calls from FunCenter customers. For example, one Technical Support Representative was typically scheduled to work from 7:00 a.m. until 9:00 a.m., and therefore, if he or she were absent and a replacement could not readily be found, customers' calls went unanswered during those hours. For obvious reasons, unanticipated employee absenteeism generated significant problems in Discovery Zone's efforts to provide FunCenter stores with effective computer systems support. Indeed, were a FunCenter store to require emergency assistance with respect to its computer system, whether it be an automated cash register or personal computer, and no Technical Support Representative was available to immediately remedy the problem, important accounting information, including inventory tracking data and sales figures, might very well be lost.

The record reflects that throughout his seven-month employment period at Discovery Zone, Oates was chronically absent from work. As a result, on January 14, 1994, Christenson formally "wrote up" Oates in an inter-office memorandum which, among other things, set forth in detail Discovery Zone's procedures for reporting employee absenteeism. *fn2 Oates received, signed, and admittedly understood the memorandum. It read, in relevant part:

We need to both put in writing, and discuss, each of the following issues that have happened in the past 2 months. These kinds of situations cannot continue in the future. . . . If these or any other issues to these issues continue to occur, further action will be taken against you.

* * *

2. Numerous sick days were incurred in the past 2 weeks. A doctors note was procured for the last group of sick days off, and a doctors note must be procured from this day forward, for any further sick days off. Because of one of your sick days, the customer support hot line went un-answered for 3 hours, from 7am to 10am last week.

3. The proper procedures have not been followed regarding days off.

I will reiterate these procedures:

A. You must try to get another rep to take your shift for you.

B. If, after exhausting all possibilities, you must call me at home and or page me, until you reach me.

HM # [Christenson's home phone number]

PAGER # [Christenson's pager number]

* * *

Thus, if Oates wished to absent himself from a day of work, for whatever reason, he was required to attempt to find a Technical Support Representative replacement for his shift. Should Oates be unable to do so "after exhausting all possibilities," it was incumbent upon him to either call Christenson at home and/or page her until she was contacted. *fn3 If Oates failed to follow these procedures when taking off from his work assignment, "further action" would be taken against him. Between January 14, 1994 and April 21, 1994, Oates was absent from work on at least eight other occasions for various reasons.

On or about February 28, 1994, McDermott commenced work for Discovery Zone as its Manager of Corporate Information Services. In early April 1994, he assumed the responsibility of overseeing the Rosemont support center from his Chicago-based office, which included direct authority over Christenson, and through her, indirect responsibility over Oates and other Technical Support Representatives. Shortly thereafter, McDermott met with Christenson to discuss her personnel. During this meeting, Christenson mentioned that she and McDermott's predecessor, Nance, were "on the path" to discharging Oates. On April 14, 1994, McDermott warned Oates over lunch that his poor attendance record and possible termination had been discussed in a conversation between himself and Christenson.

On April 21, 1994, a day upon which Oates was the sole scheduled Technical Support Representative in Discovery Zone's Rosemont office, he was again absent from work. At 7:01 a.m., one minute after his shift was to begin, Oates left a voice-mail message for Christenson on her office telephone regarding his absence. Because Christenson was not scheduled to arrive in the office until a later hour and apparently had not checked her messages at work, McDermott was the first manager to learn that no Technical Support Representative was on duty upon receiving an "early morning" call from a disgruntled FunCenter customer who was unable to reach the Rosemont support center. When McDermott was also unsuccessful in contacting the Rosemont support center, he paged Christenson at approximately 8:30 a.m. to ascertain why it was unmanned. Christenson, who was en route to work, immediately contacted McDermott via her car phone and explained that Oates was scheduled to work the morning shift, and that she had no knowledge as to why he was not fielding customers' calls. Several hours later, Christenson confirmed for McDermott that Oates had failed to report for work that morning and, furthermore, he also failed to follow the proper procedure for absenting himself from his work assignment. Meanwhile, the Rosemont support center went unmanned for at least two hours. McDermott decided to terminate Oates that very day for his failure to follow Discovery Zone's absentee notification procedures -- the same procedures summarized in Christenson's January 14, 1994, memorandum. That is, Oates neither found a replacement Technical Support Representative to cover his scheduled shift, nor did he call Christenson at home or page her until she was reached. With the approval of Discovery Zone's Vice President of Human Resources, both McDermott and Christenson met with Oates in Christenson's office on April 22 to jointly inform him of his discharge.

In early April 1994, prior to the incident detailed above, Christenson posted at the Rosemont office a single copy of a one-page magazine advertisement which pictured four monkeys. One of Oates' co-workers, believing that the "monkey picture" was representative of their "department as a whole," subsequently made approximately five duplicates of the advertisement and hung them in the office as well. Allegedly at some point prior to April 18, 1994, Oates' first name, "Art," was written above one of the monkeys depicted in one of the pictures. *fn4 As the only African-American working at Discovery Zone's Rosemont office, Oates was offended by the display and immediately brought the situation to Christenson's attention. When Oates purportedly requested that Christenson remove the picture, she failed to comply with his wishes, and told Oates that he was being "over-sensitive." *fn5 Oates never complained to any other of his superiors, including McDermott, about the picture before his April 21, 1994 termination. Although Oates claims to have sent Mary Mierkiewicz, Discovery Zone's Human Resources Manager, a memorandum complaining about the posted advertisement prior to April 21, it was both dated and received April 25, 1994 -- four days after Oates' discharge.

B. Procedural Background

After exhausting his administrative remedies via the Equal Employment Opportunity Commission ("EEOC"), as required pursuant to 42 U.S.C. sec. 2000e-5(e)(1), Oates filed suit in the District Court for the Northern District of Illinois on November 18, 1994, alleging that: (1) Discovery Zone terminated him because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec.sec. 2000e-2 et seq. and the Civil Rights Act of 1871, 42 U.S.C. sec. 1981; (2) that Discovery Zone retaliated against him for complaining about race discrimination, in violation of Title VII of the Civil Rights Act, 42 U.S.C. sec. 2000e-3(a); and (3) that Discovery Zone intentionally inflicted "emotional distress" upon him as that term is defined under Illinois law. Oates never submitted a claim for racial harassment before either the EEOC or the district court. Approximately one year after filing his complaint, Discovery Zone filed a motion for summary judgment. On January 5, 1996, the district judge, upon finding that "no question of material fact exist[ed] with respect to plaintiff's claims," Oates v. Discovery Zone, Inc., No. 94 C 6934 (N.D. Ill. January 5, 1996), granted the defendant Discovery Zone's motion and dismissed the case in its entirety.

II. ISSUES

The ultimate question presented in this appeal is whether the district court's grant of summary judgment in favor of Discovery Zone was proper. Specifically, Oates asks us to consider whether the district court: (1) erroneously relied upon disputed facts in granting Discovery Zone's motion for summary judgment; (2) applied an incorrect standard in granting Discovery Zone summary judgment; and/or (3) improperly awarded summary judgment with ...


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