position. Plaintiff's responsibility increased from managing two stores to managing six stores, more than any other manager.
In the summer of 1994, Babatunde Adeniyi, who reported to plaintiff, complained to Kallergis about plaintiff's use of abusive language, for which Kallergis issued plaintiff a verbal warning. November 9, 1994, Parris Reaves ("Reaves"), another of plaintiff's subordinates, had a confrontation with plaintiff. Three weeks later, in a December 3, 1994, telephone call, Jetha Jones ("Jones"), a recently-hired management trainee in one of plaintiff's stores, told Kallergis that plaintiff had "exploded into a fit of anger" the previous day, and had berated her using language that was "loud, abusive, and profane." Plaintiff denied making the statements.
Following this incident, Kallergis suspended plaintiff and conducted an investigation. Kallergis asked plaintiff to meet him at one of his restaurants on December 5, 1994. At that meeting, Kallergis informed plaintiff that he would conduct a thorough investigation in conjunction with the Human Resources department. On December 8, 1994, Kallergis and Paul Ramsey ("Ramsey"), the Human Resources Manager, met with plaintiff, telling him that three employees, Jones, Reaves, and Peter Guyse-Crew, ("Guyse-Crew") had "gone on record" with written statements alleging that plaintiff had used loud and profane language at times while conducting business in the restaurant. Ramsey informed plaintiff that this behavior violated defendant's work rules, which required managers to maintain working environments free of harassment and intimidation. Plaintiff acknowledged company standards, but denied all allegations of abusive conduct, suggesting that defendant poll additional employees from his restaurants.
Later that afternoon, Ramsey and Kallergis drove to another of plaintiff's restaurants and randomly selected three employees to be interviewed regarding plaintiff's management style. Three of plaintiff's subordinates, Samantha Long, Santina Coley and Carla Martinez, verified plaintiff's regular use of profanity and described a work environment where employees feared plaintiff's presence. Ramsey and Kallergis terminated plaintiff's employment on that day. On March 9, 1995, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that defendant discriminated against him on the basis of his race, religion, and national origin.
Summary judgment should not be granted unless there is no genuine issue of material fact. Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the court is to construe the evidence in the light most favorable to the nonmovant. This standard places the initial burden on the movant to identify those portions of the record on file which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The burden then shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). The court must read the facts in a light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). This standard is applied with added vigor in employment discrimination cases, where intent and credibility are crucial issues. See Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993). The granting of summary judgment to an employer is appropriate, however, if on the facts before the court, taken as favorably to the plaintiff as the evidence permits, no rational jury could conclude that the employee was fired due to discriminatory animus. See Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990).
I. Failure to Promote Charge
Defendant's motion for summary judgment states that the failure to promote claim was not part of the EEOC charge and thus, it cannot be raised in the complaint. As this court has held previously, claims that were not raised in an EEOC charge or that are not "like or reasonably related to" the claims asserted in the charge, are barred. See Siciliano v. Chicago Local 458-3 M, 946 F. Supp. 596 (N.D.Ill. Nov.25, 1996)(Gettleman, J.). If claims asserted in a judicial complaint are distinct from those alleged in the underlying EEOC charge, they lie outside the scope of plaintiff's charge and must be dismissed for failure to exhaust administrative remedies. See Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 546 (7th Cir. 1988), cert. denied, 491 U.S. 907, 105 L. Ed. 2d 699, 109 S. Ct. 3191 (1989). A party must expressly mention failures to promote in the EEOC complaint to have a basis on which to infer that such claim was being advanced. See Egan v. Palos Community Hosp., 889 F. Supp. 331 (N.D.Ill. 1995). Plaintiff's charge states only that he was subjected to racial slurs and was suspended and discharged. He does not expressly mention defendant's failure to promote him and thus, defendant has no basis on which to infer that such claim was being advanced. Therefore, the failure to promote claim is precluded.
Moreover, even if the failure to promote claim could be construed to be within the scope of the EEOC charge, plaintiff cannot establish a prima facie case of discrimination. To establish a prima facie case of discrimination for failure to promote, a plaintiff must show: (1) that he is a member of a protected group; (2) that he applied for and was qualified for the position sought; (3) that the employer rejected him from the promoted position; and (4) that the employer granted the promotion to another employee who was not in the protected group. See Sample v. Aldi Inc., 61 F.3d 544 (7th Cir. 1995). The second, third, and fourth prongs of this test require the existence of a position for which a plaintiff could have qualified and applied.
Although defendant admits that there was "talk" around the office about the creation of such a position, defendant later decided not to create the position. Plaintiff does not provide any evidence to suggest that this decision was made to keep employees of his racial, ethnic, or religious background out of upper management. Therefore, defendant made a simple business decision, an area in which the court usually will not tread. See Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300 (7th Cir. 1991)("it is not this court's practice to question an employer's good faith business decision"). Thus, defendant's motion for summary judgment is granted on the failure to promote charge.
II. Wrongful Termination Charge
To establish a claim for wrongful termination, a Title VII plaintiff must ultimately show that race or another characteristic within the ambit of the statute was a determining factor in the decision to discharge. This burden can be met by presenting either direct or indirect evidence of discrimination. Le Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). When a plaintiff uses the indirect method, as does plaintiff in the instant case, the McDonnell-Douglas burden-shifting analysis applies. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under the McDonnell-Douglas approach, a plaintiff must carry the initial burden of establishing a prima facie case by showing: (1) that he was in the protected class; (2) that he was doing his job well enough to meet his employer's legitimate expectations; (3) that in spite of his performance he was discharged; and (4) that the employer sought a replacement for him. See Id. at 802. See also Le Montagne, 750 F.2d at 1409.
If a Title VII plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate nondiscriminatory reason for discharge. Le Montagne, 750 F.2d at 1409. If the employer articulates a nondiscriminatory and sufficient reason, the burden of production shifts back to the employee to prove by a preponderance of the evidence that the proffered reason was really a pretext for discrimination. See Billups, 922 F.3d at 1302-03. In the instant case, plaintiff barely establishes a prima facie case. While he is a member of a protected class, plaintiff fails to meet the second prong of the McDonnell-Douglas test. Plaintiff vehemently denies making any profane comments to Jones
but has nothing to support his denials other than his own statements. The evidence of plaintiff's misconduct is substantial: Guyse-Crew turned in a complaint
and three randomly-selected employees described an extremely unpleasant working situation with plaintiff.
While Ramsey and Kallergis admit that plaintiff's "financials" were acceptable, Ramsey states:
Mr. Kallergis and I reiterated to [plaintiff] that the overriding issue was not whether he had delivered the sound financial and operation results expected by [defendant], but rather that he had treated his employees in an egregious manner. We informed [plaintiff] that the successful operation of his restaurants did not excuse his unacceptable abuse and intimidation of employees who were equally valuable to [defendant].