Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 93 C 4899 Elaine E. Bucklo, Judge.
Before BAUER, FLAUM, and KANNE, Circuit Judges.
DECIDED SEPTEMBER 26, 1997
In cause No. 96-2827, Plaintiff-Appellant Harry D. Weeks filed suit against Samsung Heavy Industries Co., Ltd., (hereinafter "SHI"), *fn1 Samsung America, Inc., and Samsung Construction Equipment Co., alleging racial and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000 et seq. (Counts I and II); retaliatory discharge in violation of Title VII (Count III); breach of verbal hiring promise (Count IV); promissory estoppel (Count V); and fraud and misrepresentation (Count VI). Weeks' claims arose from his employment with SHI, and stemmed from his belief that SHI engaged in discriminatory employment practices and made numerous fraudulent misrepresentations to Weeks. The district court granted summary judgment in favor of SHI on all counts. In cause No. 97-1857, the district court imposed costs in the amount of $18,952 in favor of SHI. Weeks now appeals from the district court's grant of summary judgment in favor of SHI in No. 96-2827 and from the district court's imposition of costs in No. 97-1857. We affirm.
SHI is a Korean corporation with its principal place of business in Korea. Harry D. Weeks, an American citizen, began working for SHI on March 18, 1991, as SHI's National Sales Manager for North America. At that time, Weeks was the only salesperson hired by SHI and was responsible for covering all of North America. Weeks' employment with SHI was negotiated exclusively with Chang Il Kim ("C.I. Kim"), who was the general manager of SHI's Chicago office at that time. On March 18, 1991, Weeks received a letter from C.I. Kim, on letterhead from SHI's Chicago office, setting forth the terms of Weeks' employment with SHI. The letter indicated that the first three months of Weeks' employment with SHI would be on a probationary basis, which would give Weeks "the opportunity to decide whether the job suit[ed him] and [would] give SHI the opportunity to determine whether [Weeks was] the right person for the job." The letter also indicated that the three-month probationary period could be extended at the sole discretion of SHI. After the probationary period was over, Weeks' performance was to be reviewed, and, if it was satisfactory, Weeks would obtain the status of a "regular employee." Weeks was not guaranteed any fixed period of employment with SHI as was clearly indicated by the following paragraph, spelled out in all capital letters in the March 18 letter:
YOUR EMPLOYMENT WITH SHI SHALL AT ALL TIMES BE ON AN AT-WILL BASIS. YOUR EMPLOYMENT WITH SHI MAY BE TERMINATED AT ANY TIME UPON SHI'S SOLE DISCRETION. THIS CONDITION MAY NOT BE MODIFIED EXCEPT BY SPECIFIC WRITTEN INSTRUMENT EXECUTED BY THE OFFICE MANAGER OF SHI'S CHICAGO BRANCH.
The letter stated that Weeks' salary would be $6,250 per month, or $75,000 per year. A one-page attachment to the letter entitled "Job Description" listed seven duties for Weeks' position. Included on the list was "1. All the works as National Sales Manager." At the time Weeks was hired, he was the first and only "National Sales Manager" hired by SHI in North America.
On June 17, 1991, C.I. Kim sent Weeks a written memo informing him that his probationary period would be extended by three months until September 18, 1991. Attached to the June 17 memo was a revised job description which was similar to the March 18 job description except that the reference to performing "all the works as National Sales Manager" was no longer included. In place of the reference was "8. Any work, especially provided by the company, related with Sales & Marketing as Sales Manager." C.I. Kim testified that he did not orally inform Weeks that his title was no longer "National" Sales Manager. During the second probationary period, Weeks and SHI negotiated terms for relocating Weeks and his family from Virginia to Chicago. Also during this period, C.I. Kim advised B.T. Kim, a manager in Korea, that he believed Weeks should be sent to Korea to see "Samsung's advancement/vision, and let him decide whether he wants to work for Samsung."
Weeks was interested in changing the structure of SHI's operations in North America to make it more consistent with the typical structure and organization of American companies. Between June 1991 and January 1992, Weeks came up with a marketing plan which would divide SHI's North American territory into three regions, each having its own regional sales manager. Pursuant to this plan, Weeks would supervise the regional sales managers and have no direct sales responsibilities. In a December 4, 1991 memo, Weeks requested the hiring of more sales managers. He wrote, "C.I. Kim--I have no idea how we can possibly continue to put off all of these dealers who are now saying they are ready to proceed. When can I begin adding the necessary staff to take advantage of the most serious inquiries???" On January 21, 1992, C.I. Kim responded with an "Announcement" of the following changes in SHI's internal operating structure:
Although one person has been in charge of the sales and marketing department, this department will be divided into three territories in order to reduce the workload: West, Southeast and West Central-Northeast. Each territory will have one individual who will be in charge of and be responsible for such territory. The head of each territory shall report on operations directly to Chang Il Kim, the Manager of the Oak Brook Terrace office.
Harry D. Weeks will be in charge of the West Central-Northeast territory. Harry Weeks shall coordinate and ensure that all necessary sales strategies and financing programs of SHI are properly implemented.
SHI will appoint an individual to be in charge of all three territories for the sales and marketing department whenever it believes that such an appointment is necessary from a business standpoint.
Weeks remained stationed in Chicago, and his compensation, office and other amenities did not change as a result of the restructuring.
On January 21, 1992, Weeks, John Johnson, and John Krett, three North American managers, sent a memo to Y.M. Kim, the Senior Executive Managing Director in Korea, expressing discomfort and concern with the restructuring, and informing the Korean operation of what was occurring in Chicago. The managers had just returned from the American Equipment Dealers' national convention, where they had explained SHI's organizational structure to prospective dealers in an attempt to gain new business for SHI. The January 21 memo explained that because they had not known about the restructuring when they represented SHI at the convention in over thirty-five presentations, they felt that they "clearly misrepresented [themselves] as well as Samsung." The memo continued, "In America this is against the law. We can be sued personally as well as corporately." The memo also expressed the view that the restructuring was not a plan that would have success or had worked in the past for American equipment manufacturers. The memo informed upper management in Korea that the three American managers felt they had been misled by C.I. Kim during their initial interviews, and it stated that C.I. Kim "promised top management positions to all of us during our initial interview." The memo also accused C.I. Kim of being an "inexperienced, egotistical manager who has no experience or knowledge of the construction equipment market." The memo concluded, "If Samsung is to truly be a world-class manufacturer, it must rely on local management of each country it does business in. We respectfully request that you give this matter your attention before everything that we have built this last year is destroyed."
On January 24, 1992, Weeks sent a memo to American management, including C.I. Kim, explaining his view that North America needed to be divided into territories and that the overall structure needed to be coordinated and administered by one person--a North American Sales Manager. Weeks wrote:
I have tried to explain that the North American Sales Manager position is what I thought the position was that I was being hired for by Samsung Heavy Industries. I also now better understand the corporate structure at Samsung Heavy Industries. In our discussions with you we tried to explain the need for Samsung to present itself in North America as a Westernized company. This is the only way to gain acceptance in this market.
Weeks' memo also expressed his belief that the necessary support for new field people could only come from an "American" Sales Manager.
On February 6, 1992, in response to the American managers' memo to the Korean executives, C.I. Kim sent letters to Weeks, Johnson, and Krett. He admonished them for sending the memo to Korea without first obtaining his approval, which, he advised, constituted a violation of "company policy." C.I. Kim informed all three that in the future, failure to adhere to company policy could subject them to disciplinary action, including termination. C.I. Kim's letter to Weeks also stated:
In accordance with the announcement that was circulated to you on January 21, 1992, SHI intends that the Sales Department will be divided into three territories. Each territory will have one individual who will be in charge of and be responsible for such territory. The head of each territory shall report on operations directly to me. This is SHI policy, and as such, must be adhered to by you.
On February 13, 1992, Weeks responded to C.I. Kim that he would be interested in being assigned to the Southern Territory. He stated, "Per our discussions, give this consideration as I know many of the Southern dealers and it would remove me from what has become a very unpleasant situation for me in our Chicago office." Weeks also wrote, "You have instructed me to tell our existing and new potential dealers that my position with the company is unchanged. I have a very serious moral and ethical problem with this position." On February 24, 1992, C.I. Kim replied to Weeks that he at no time, gave [Weeks] such instructions. I did state that your responsibilities will continue to be the same as they have been in the past until we hire new managers for the Sales and Marketing Department. Your essential job functions have not changed; only the geographic boundaries within which you are to perform these duties have been altered due to our realization that one person is not enough to handle our increasing volume of business.
On February 3, 1992, Weeks had filed a complaint of discrimination with the Equal Employment Opportunity Commission and the Illinois Department of Human Rights under both Title VII of the Civil Rights Act of 1964 and under the Age Discrimination in Employment Act of 1967. Weeks alleged that he had been discriminated against on the basis of his race, national origin, and age when he was demoted from the position of Sales Manager of North America to a sales representative. The charge also centered on Weeks' allegations that he had been replaced by a younger, less-qualified Korean employee, Sung Ho Lee ("S.H. Lee"), and that S.H. Lee was being groomed for the position for which Weeks was initially hired. The charge was forwarded to SHI on approximately February 12, 1992.
S.H. Lee is a Korean citizen who entered the United States on an E-1 visa. S.H. Lee began working for SHI in Korea in 1983, and was transferred to the United States in 1989. He was assigned the position of administration manager of the Chicago office of SHI in approximately December 1991, and he had primary responsibility for coordinating import and export matters with SHI's home office in Korea. S.H. Lee was able to read, write, and speak Korean, which aided him in his duties because most of the communication between the Korean and the Chicago offices were conducted in Korean. Affidavits filed by two regional sales managers for SHI stated that S.H. Lee never had any managerial or supervisory responsibility over them, and that he was not the "National Sales Manager." In 1994, SHI hired an American citizen to supervise the regional sales managers.
On February 28, 1992, C.I. Kim sent a memo to Weeks commenting on Weeks' diminished working hours; he felt Weeks was working less than the regular hours of 8:30 to 5:30. C.I. Kim asked Weeks to maintain regular business hours. Weeks responded by memo on the same day that he would resume regular business hours, and that he had not been keeping regular hours because he, "as well as the other managers and staff people, [had] been awaiting your re-organizational plan." He explained that because of the restructuring, he was now responsible for only one-third of his previous workload, and did not have enough to do to fill the hours.
By late-February or early-March, Weeks had begun looking for another job. Specifically, he initiated job discussions with one of SHI's Florida dealers, and began negotiating employment opportunities with that company. Around that same time, SHI learned that Weeks allegedly had been disparaging SHI to dealers and prospective customers, and had been discussing his EEOC claim with SHI's customers or prospective customers and dealers. Weeks admitted in his deposition testimony that he discussed his employment dispute with several of SHI's customers, and responded to interrogatories that he had discussed his EEOC charge with at least three of SHI's customers or prospective customers.
On March 9, 1992, C.I. Kim sent Weeks a memo reprimanding Weeks for disparaging SHI to dealers and prospective dealers by discussing the EEOC charges. The memo also stated that SHI would not retaliate against Weeks for instituting the EEOC charge, but asked Weeks to air his grievances before the EEOC and not before customers. The memo concluded, "Please be advised that any future efforts to poison SHI's relationship with its dealers and prospective dealers will result in disciplinary action, up to and including, termination of your employment."
On March 13, 1992, C.I. Kim received a letter of resignation from Weeks which was dated March 16, 1992. On March 17, 1992, SHI entered into a dealer agreement with Florida Equipment & Service, Inc. ("FES") under which FES would serve as SHI's exclusive dealer in Florida (excepting the panhandle counties). On March 18, 1992, Weeks became an employee of FES.
On May 15, 1993, the EEOC gave Weeks notice of his right to institute a civil action. This case was initially filed in the United States District Court for the Northern District of Illinois on August 13, 1993. The initial complaint contained seven counts: Count I, Racial Discrimination in Employment; Count II, National Origin Discrimination in Employment; Count III, Age Discrimination in Employment; Count IV, Retaliatory Discharge; Count V, Breach of Verbal Hiring Promise; Count VI, Promissory Estoppel; and Count VII, Fraud and Misrepresentation. *fn2 The gravamen of Weeks' employment claims was that his responsibilities and duties were removed and assigned to S.H. Lee on or about January 20, 1992.
After a heated and contentious period of discovery and litigation, which included motions for sanctions and Weeks' motion for recusal of the magistrate judge, SHI filed a motion for summary judgment on April 8, 1996. SHI also filed a contemporaneous Statement of Material Facts in accordance with Local Rule 12(M). Weeks filed a response to the summary judgment motion on May 20, 1996. He did not file a Local Rule 12(N)(3) statement responding to each of the numbered paragraphs in SHI's Rule 12(M) statement, but, rather, filed his own Rule 12(M) Statement of Material Facts which raised additional facts which Weeks believed were in dispute. SHI replied to Weeks' response and to Weeks' Rule 12(M) Statement on June 7, 1996. On July 12, 1996, the district court granted SHI's motion for summary judgment in its entirety and entered final judgment in favor of SHI. See Weeks v. Samsung, 933 F. Supp. 711 (N.D. Ill. 1996). Weeks filed his notice of appeal in this Court in No. 96-2827 on July 22, 1996. Weeks argues that the district court erred in granting summary judgment in favor of SHI on the discrimination claims in Count I and Count II, and on the Count VI fraud claim. He also argues that the district court abused its discretion in terms of several discovery-related issues. In No. 97-1857, Weeks contends that the district court abused its discretion in awarding costs to SHI. This panel determined that No. 97-1857 is a successive appeal to No. 96-2827 and we agreed to consider it with the merits of the underlying action. We affirm the district court in both causes.
We review de novo the district court's grant of summary judgment. Summary judgment is appropriate where "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 judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To determine whether a genuine issue of material fact exists, we construe the evidence in the light most favorable to the party opposing the motion and draw all justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact is not demonstrated by the existence of "some alleged factual dispute between the parties," id. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In that regard, pointing out the "mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to show a genuine issue of material fact. Anderson, 477 U.S. at 252. Rather, a genuine issue of material fact does not exist unless "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249. Because employment cases often turn on questions of intent and credibility, courts weighing summary judgment motions in these cases must take care not to invade the province of the factfinder by attempting to resolve "swearing contests and the like." See Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997). However, employment cases are governed by the same rules that govern other summary judgment cases, and they are equally amenable to summary disposition so long as there is no genuine dispute as to the material facts. Id. (citations omitted); see also Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394 (7th Cir. 1997).
In addition to the normal parlance about the rules governing summary judgment, this case and the arguments advanced by Weeks on appeal require us to reiterate the duties of a party opposing summary judgment. In Lujan v. National ...