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November 17, 1997

SYAMALAN NAIR, Plaintiffs,

The opinion of the court was delivered by: PALLMEYER

 Plaintiff Syamalan Nair challenges his February 1994 discharge from employment with Defendant Bank of America Illinois as a violation of his civil rights. His complaint as amended consists of two counts. In Count I, brought under Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et seq., Plaintiff claims that Defendant discriminated against him on account of his race and national origin by denying him promotional opportunities, by demoting him, by harassing him, and by discharging him. In the alternative, Plaintiff alleges that the Bank took these actions in retaliation for Plaintiff's filing of discrimination charges in 1986 and again in 1988. Count II mirrors Count I in its claims but alleges a violation of 42 U.S.C. § 1981, not Title VII. Defendant has moved for summary judgment on both counts. For the reasons set forth below, summary judgment is granted in part and denied in part.


 The following facts are taken from the Statement of Uncontested Material Facts in Support of Defendant's Motion for Summary Judgment (hereinafter "Def.'s 12(M) Stmt."), Plaintiff's Response to Statement of Uncontested Material Facts in Support of Defendant's Motion for Summary Judgment (hereinafter "Pl.'s 12(N) Stmt."), Plaintiff's Statement of Additional Material Facts Pursuant to Local Rule 12(N)(3)(b) Which Require Denial of Defendant's Summary Judgment Motion (hereinafter "Pl.'s 12(N)(3)(b) Stmt."), *fn1" and depositions and affidavits contained in the record.

 On September 10, 1979, Defendant Bank of America Illinois (hereinafter sometimes "the Bank") hired Plaintiff, Syamalan "Sam" Nair, as a Salary Grade 5 clerk and assigned him to its document processing center, the area of the bank where checks presented for deposit are cleared and processed. (Stell Dep. I at 9; Nair Dep. at 32, 33.) Not long afterwards, in 1981, Defendant promoted Plaintiff to a Salary Grade 6 position as a Senior Investigator. (Nair Dep. at 33.) In this new position, Plaintiff "investigated discrepancies in customer accounts" (Def.'s 12(M) Stmt. P 9; Nair Dep. 33, 34), working on the day shift. (Nair Dep. at 35.) In subsequent years as a Senior Investigator, Plaintiff reported to several different supervisors and was assigned to several different sections, but his responsibilities remained largely the same throughout his tenure with the Bank. (Nair Dep. 36, 38.)

 It is undisputed that from the beginning of his employment with Defendant, Plaintiff had serious problems with attendance. As early as 1982, one of Plaintiff's supervisors noted that he was "absent and late more often than normal. Often away from work without good reason." (September 1982 Performance Appraisal, Ex. 22 to Def.'s 12(M) Stmt.) Between 1984 and 1991, Plaintiff received seven disciplinary memoranda pursuant to Defendant's attendance policy. (1984-91 Disciplinary Memoranda, Ex. 23 to Def.'s 12(M) Stmt.; Nair Dep. at 98.) Each of these memoranda stated that Defendant expected "an immediate and lasting improvement" in Plaintiff's attendance record, and that failure to show up for work more consistently could have a negative impact on his future performance appraisals and his chances for promotion. (1984-91 Disciplinary Memoranda, Ex. 23 to Def.'s 12(M) Stmt.; Nair Dep. 103, 104.) In July 1991, moreover, yet another supervisor warned Plaintiff that he "must be cautious with his attendance record so that it does not become a factor in his performance." (July 1991 Performance Appraisal, Ex. 24 to Def.'s 12(M) Stmt.)

 Plaintiff received a number of performance evaluations during his years as a senior investigator. (Nair Affidavit (hereinafter "Nair Aff.") P 7.) Few of these evaluations were noteworthy, *fn2" and Plaintiff ultimately grew dissatisfied with how he was rated. In 1986, he commented on one evaluation that "This appraisal does not reflect high standard of my work and achievement. I am being appraised unfairly, as my work exceeds the company standards [sic] for my posistion [sic]." (May 1986 Performance Evaluation, Ex. A to Nair Aff.) He did not, however, provide any detailed reasons for his contention that he should have been rated higher.

 Plaintiff was also dissatisfied with Defendant's failure to promote him despite the fact that he was, as he describes it, "fully qualified." (Pl.'s 12(N)(3)(b) Stmt. P 19.) On at least two separate occasions in 1986, Plaintiff applied for, but was denied, Salary Grade 7 positions. *fn3" (Pl.'s 12(N)(3)(b) Stmt. PP 19, 21.) Defendant has not responded to Plaintiff's assertion that he was fully qualified for these positions, so this court accepts Plaintiff's assertion as true.

 In 1986, Plaintiff filed a Charge of Discrimination with the Illinois Department of Human Rights (hereinafter "IDHR"), alleging that Defendant had failed to promote him and had underrated his performance on account of his national origin. (1986 Charge, Ex. C to Nair Aff.; Nair Aff. P 10.) After filing this charge, he was summoned to meet with Agnes Canning, the Vice President of Defendant's Human Resources Department. (Pl.'s 12(N)(3)(b) Stmt. P 24.) They discussed the allegations in Plaintiff's charge, and Canning allegedly told Plaintiff that she would "make some inquiries" about the possibility of promoting him. (Id.) Apparently dissatisfied with Canning's efforts, Plaintiff filed a similar but slightly modified charge with the Equal Employment Opportunity Commission (hereinafter "EEOC") in 1988; *fn4" he dropped the claim that Defendant had underrated him and added sex discrimination as a basis for Defendant's failure to promote him. (1988 Charge, Ex. D to Nair Aff.; Nair Aff. P 11.) Both agencies ultimately dismissed the charges as unfounded. (Administrative Charge Dismissals, Exs. 14 and 17 to Def.'s 12(M) Stmt.)

 In September 1992, Plaintiff requested a transfer to the night shift. *fn5" (Scornavacco Dep. at 24, 38; Nair Dep. 43, 281.) At the time of his request, however, Plaintiff acknowledges that the only available position for which he was qualified was a Salary Grade 5 Senior Checker position in the incoming deposits area of the Bank. (Scornavacco Dep. at 23, 28, 49, 154; Nair Dep. at 281.) Proceeding with such a transfer would ordinarily have resulted in a reduction in pay for Plaintiff, but because the salary ranges for grades 5 and 6 overlap and Plaintiff's grade 6 salary in 1992 fell in the range common to both grades (Stell Dep. I at 4), night shift supervisor Barbara Scornavacco informed Plaintiff that his salary would not change upon transferring to the night shift. (Scornavacco Dep. at 40; Nair Dep. at 49.) In fact, because night shift workers receive a premium not offered day shift workers, she also informed Plaintiff that his salary would probably increase if he transferred to the night shift. (Scornavacco Dep. at 49; Stell Dep. I at 38; Nair Dep. at 56, 197.) Thus, Plaintiff decided to go through with the transfer, although it technically constituted a demotion. (Transfer Requisition, Ex. 7 to Def.'s 12(M) Stmt.)

 Shortly before his transfer took effect, Plaintiff met again with night shift manager Barbara Scornavacco. (Scornavacco Dep. at 15, 35, 44; Nair Dep. at 48.) She gave Plaintiff a brief description of the Senior Checker position, explaining that it would require more standing and lifting than his previous position as a Senior Investigator. (Scornavacco Dep. at 39.) Plaintiff also met separately with his new supervisor on the night shift, Kenneth Stell, *fn6" but the record suggests that their meeting was more confrontational than it was informative. Stell admits both to having reviewed Plaintiff's personnel file--which included records of the discrimination charges Plaintiff filed with the IDHR and the EEOC *fn7" --and to having told Plaintiff "I know all about you." (Stell Dep. I at 22-24; Nair Dep. 127-29, 278.)

 According to Plaintiff, his employment relationship with Stell never recovered from that initial meeting. Plaintiff claims that he "noticed immediately" after he began working as a Senior Checker on the night shift that Stell disliked him and treated other employees more favorably. (Nair Dep. 276-77.) As proof, Plaintiff points to what he characterizes as acts of "harassment" by Stell. (Plaintiff's Amended Complaint (hereinafter "Pl.'s Amend. Compl." Count I P 9, Count II P 7.) First, he alleges that Stell refused to allow him to start his shift earlier in the evening so that he could be home from work in time to prepare his children for school. *fn8" (Nair Aff. P 17; Scornavacco Dep. at 89, 157.) Second, he complains that Stell took voluminous notes on him, more than on any other employee. (Nair Aff. P 21; Pl.'s 12(N)(3)(b) Stmt. P 78.) Third, Plaintiff alleges that Stell refused to speak to him during working hours. (Nair Dep. at 144, 277-78; Pl.'s 12(N)(3)(b) Stmt. P 77.) Fourth, he claims that Stell excluded him from at least seven or eight section meetings. (Nair Dep. at 142-44; Pl.'s 12(N)(3)(b) Stmt. P 76.) Finally, he recounts that Stell called him a "damn Indian" and made it difficult for him to leave work one day after he had received word that his son was home having convulsions. *fn9" (Nair Dep. at 147-48, 154; Pl.'s 12(N)(3)(b) Stmt. P 74.) Significantly, Plaintiff has not provided specific dates for any of these acts of harassment; he notes in this regard only that the "damn Indian" incident occurred "a few months" after he transferred to the night shift. (Pl.'s 12(N)(3)(b) Stmt. P 74.)

 The Bank challenges Plaintiff's account. Defendant claims, first, that requests to adjust night shift hours were common but not granted to any employees. (Scornavacco Dep. at 37, 39.) Defendant urges, further, that Stell took notes on everything and everyone as part of his daily routine *fn10" (id. at 111), and that Stell's failure to speak more frequently with Plaintiff was not the result of personal animosity but of the "busy work environment." (Memorandum in Support of Defendant's Motion for Summary Judgment (hereinafter "Def.'s Mem. Supp. Mot. Summ. J.") at 8.) Defendant points out that there is no evidence other than Plaintiff's subjective perception that Stell spent more time with other employees. (Def.'s Mem. Supp. Mot. Summ. J. at 7.) Finally, Defendant concedes that Stell referred to Plaintiff as a "damn Indian" (Reply in Support of Defendant's Motion for Summary Judgment (hereinafter "Def.'s Reply") at 12), but otherwise asserts that the resistance Plaintiff met with from Stell on the day Plaintiff's son fell ill was unfortunate but necessary; time sheets were due that day and Stell was trying to figure out whether Plaintiff wanted paid leave. (Stell Dep. I at 67.) Defendant does not address whether or why Stell allegedly excluded Plaintiff from section meetings.

 In addition to being harassed by Stell, Plaintiff claims to have been unjustifiably passed over for promotion on six different occasions after he transferred to the night shift. *fn11" On each of these occasions, Plaintiff claims that he was "fully qualified" for the position in question but that Defendant either did not consider him for it or did not inform him of the position's availability. (Pl.'s 12(N)(3)(b) Stmt. PP 62, 66, 84, 86, 88, 89.) Defendant has not responded to these assertions, so this court accepts them as true.

 Meanwhile, Plaintiff's attendance problems continued. On August 13, 1993, Plaintiff received a disciplinary memorandum from Stell for three absence "occurrences" that he had accrued in the previous 12 months. (Scornavacco Dep. at 120; Stell Dep. II at 10; Nair Dep. at 104.) According to the memorandum, Plaintiff had been absent for approximately 10 days in August 1992, for three days in June 1993, and for 20 days in July and August 1993. (8/13/93 Memorandum, Ex. 26 to Def.'s 12(M) Stmt.) The memo also warned that Plaintiff's continued poor attendance could result in lost promotional opportunities and, ultimately, in his termination. (Id.) Soon thereafter, on November 1, 1993, Plaintiff began yet another absence occurrence, this one lasting for 28 consecutive business days until December 13, 1993. *fn12" (12/15/93 Memorandum, Ex. 23 to Def.'s 12(M) Stmt., No. 0000849.) Upon his return, Plaintiff received his second disciplinary memorandum in four months, this one containing a review of Plaintiff's attendance record since 1988. (Id. ; Scornavacco Dep. at 119, 122-23, 132-33, 134.)

 Less than two weeks later, on December 23, 1993, Plaintiff again failed to show up for work and did not return until February 14, 1994. *fn13" (Canning Dep. 101, Stell Dep. II at 22.) During Plaintiff's absence, Stell and Scornavacco discussed Plaintiff's future prospects with the Bank in light of his abysmal attendance record. (Scornavacco Dep. at 116, 188; Stell Dep. at 94; Stell Dep. II at 23.) After much deliberation, they ultimately decided to recommend to Agnes Canning, who still occupied the position of Human Resources Vice President, that he be terminated. *fn14" (Scornavacco Dep. at 116, 117; Canning Dep. at 11, 40, 41; Stell Dep. II at 22.) Canning, who was familiar with Plaintiff's attendance record, agreed with the recommendation. (Canning Dep. at 43, 49, 51, 52, 54, 73.) Accordingly, she terminated Plaintiff for excessive absenteeism when he returned to work on February 14, 1994. (Termination Letter, Ex. 29 to Def.'s 12(M) Stmt.; Canning Dep. at 40, 69, 71, 72, 83.)

 At least two other non-Indian employees who worked in the document processing center were terminated by Defendant for excessive absenteeism within a few months of Plaintiff's termination. *fn15" Craig Williams was hired on March 9, 1987 and received a total of eight disciplinary memoranda for poor attendance prior to being terminated on September 2, 1993. (Def.'s 12(M) Stmt. P 49.) Derrick Staggs was hired on May 16, 1994 as a Night Shift Sorter and terminated on June 21, 1994, after accumulating one absence and three tardies in this brief stint. (Id. P 50.) It is unclear from the record whether Canning made the final decision to terminate either Williams or Staggs; what is clear is that Scornavacco recommended Williams's termination (Williams Termination Memorandum, Ex. 31 to Def.'s 12(M) Stmt.) and that Stell recommended Staggs's. (Staggs Termination Memorandum, Ex. 32 to Def.'s 12(M) Stmt.)

 At least two non-Indian employees with poor attendance records were not terminated, however. In the case of Olivia Haley, Defendant explains that she was receiving, and continues to receive, benefits under Defendant's long term disability plan--Defendant found her eligible for long term disability benefits on April 3, 1991 and she has not returned to work since. (Def.'s 12(M) Stmt. P 54.) Plaintiff has neither contested that Haley's absences were justified by her disability nor alleged that he was eligible for such benefits. (Pl.'s 12(N) Stmt. PP 54, 55.) The case of Lionel Uribe is murkier; Uribe was hired on March 1, 1990 and "resigned his position" on September 22, 1994. (Def.'s 12(M) Stmt. P 52.) During his employment at the Bank, he received numerous disciplinary memoranda for poor attendance. (Id.) Defendant claims that Uribe would have been terminated for excessive absenteeism had he not first resigned (id.); indeed, Plaintiff himself points out that Uribe received a "final warning" for poor attendance on April 13, 1994. *fn16" (Pl.'s 12(N)(3)(b) Stmt. P 105.) But Uribe did not resign until September 22, 1994--a full five months after he received the final warning--and it is unclear whether he resigned during the next absence period to follow receipt of the final warning.

 According to Plaintiff, his termination for excessive absenteeism did not comport with the procedures mandated by Defendant's attendance policy, the substance of which is hotly disputed by the parties. Plaintiff claims that Defendant's attendance policy at the time he was terminated authorized dismissal only when an employee had accrued six absence "occurrences" *fn17" in a 12-month period, and then only if the employee had received four warning memoranda under the progressive warning system set forth in the policy. Plaintiff asserts that he had only accrued four absence occurrences and two warning memoranda prior to his termination. (Pl.'s 12(N)(3)(b) Stmt. P 94.) Defendant does not dispute that Plaintiff had fewer than six absence occurrences and had been issued fewer than four warning memoranda in the 12-month period prior to his dismissal, *fn18" but argues that Plaintiff was properly dismissed under its attendance policy because the policy specifically provides that "Possible termination will be reviewed in light of the individual circumstances and attendance patterns demonstrated by the employee." (Def.'s Reply at 13; Def.'s 12(M) Stmt. P 35; Attendance Policy, Ex. 21 to Def.'s 12(M) Stmt.) This court notes, moreover, that the policy identifies the progressive warning system as a "guideline" for "flagging potential documentation." (Attendance Policy, Ex. 21 to Def.'s 12(M) Stmt.) Plaintiff also claims that Defendant based its decision to terminate him on his entire history of poor attendance at the Bank, instead of focusing exclusively on his attendance record in the 12-month period prior to his termination, as the policy requires. (Plaintiff's Memorandum of Law in Opposition to Defendant's Summary Judgment Motion (hereinafter "Pl.'s Opp. Mem.") at 12.) Defendant concedes that it took Plaintiff's long history of poor attendance into account in making the decision to terminate him (Canning Dep. at 49), but relying once again on the above-quoted language of the policy, counters that the attendance policy permitted it do so. (Def.'s Reply at 13; Attendance Policy, Ex. 21 to Def.'s 12(M) Stmt.)

 Plaintiff also claims that at least one non-Indian employee, Craig Williams, was allowed six absences and issued four warnings prior to being terminated. (Pl.'s 12(N)(3)(b) Stmt. P 103.) Defendant asserts that Williams was allowed only five absences (it concedes Wiliams was issued four warnings), but this assertion is contradicted by the available documentation on Williams's attendance history at the Bank. According to a memorandum dated September 2, 1993, Williams had accrued five absences and two tardies--for a total of six absence occurrences--in the 12-month period prior to his discharge. (Williams Memorandum, Ex. 31 to Def.'s 12(M) Stmt., No. 0000955.) Plaintiff does not contest, however, that Derrick Staggs, a second non-Indian employee terminated by the Bank around the time of Plaintiff's termination, had only two-and-a-half absence occurrences in his five-week tenure prior to being terminated on June 21, 1994. *fn19" (Def.'s 12(M) Stmt. P 50.)

  Not long after he was discharged, on May 26, 1994, Plaintiff filed a Charge of Discrimination with the EEOC, claiming that he had been harassed and fired by Defendant in retaliation for having filed discrimination charges against it in 1986 and 1988. (1994 Charge, Ex. A to Pl.'s Amend. Compl.) In connection with that charge, Plaintiff sent three letters to the EEOC. The first, dated July 24, 1995, was a letter to "Mr. Carl," the EEOC investigator assigned to Plaintiff's charge. Plaintiff apparently wrote the letter on the heels of the EEOC's dismissal of his charge--a finding that neither side has detailed in the record--because the letter can fairly be interpreted as a request for further review. (Letter to Mr. Carl, Attached Ex. to Def.'s Mem. Supp. Mot. Summ. J.) *fn20" Significantly, Plaintiff wrote in a postscript to the letter that Defendant's alleged misconduct "was purely a retaliation[.]" (Id.) The second letter was a copy of a letter Plaintiff had sent on February 7, 1994 to Tom Theobold, Defendant's Chairman. In it, Plaintiff, who was then on an extended absence, describes in detail his dissatisfaction at not having been promoted more frequently during his employment, despite what he characterizes as years of hard work and ingenuity. (Theobold Letter, Ex. 17 to Nair Dep.) He does not, however, attribute Defendant's failure to promote him to either race/national origin discrimination or retaliation, but rather to the "curious phenomenon . . . that when people do things a certain way over an extended period of time, they invariably become intolerant toward new approaches to solving problems and getting things done, even if those approaches and ways of doing things are more efficient and more productive." (Id.) In any event, there is no evidence in the record that Stell, Scornavacco, or Canning knew about the letter's existence at any point during Plaintiff's employment with the Bank. The third and final letter was a copy of a letter Plaintiff purports to have sent on February 25, 1994 to Human Resources Vice President Agnes Canning, a letter that Plaintiff asserts addresses "in detail his claims of race and national origin discrimination[.]" (Pl.'s Opp. Mem. at 14.) The contents of the letter are unknown to this court, however, because Plaintiff has not offered a copy as an exhibit.


 On October 25, 1995, Plaintiff filed a pro se complaint claiming that he had been denied promotional opportunities and terminated by Defendant on account of his race, color, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964. The complaint also alleged that Defendant terminated Plaintiff in retaliation for his having filed discrimination charges against it, also in violation of Title VII.

 On November 22, 1996, Plaintiff, now represented by counsel, filed a two-count amended complaint. In Count I, Plaintiff claims that Defendant discriminated against him on account of his race and national origin and retaliated against him in violation of Title VII in at least four ways: (1) by denying him promotional opportunities; (2) by downgrading him to the night shift in October of 1992, and subsequently assigning him to "undesirable job duties"; (3) by singling him out for harassment and unwarranted criticism; and (4) by disciplining and discharging him. In Count II, Plaintiff repeats his claims of misconduct, but alleges that they violate 42 U.S.C. § 1981, not Title VII. Defendant has moved for summary judgment on both counts. *fn21"


 A. Standard of ...

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