nothing for the Section 1981 claims to relate back to[.]" (Id.) This court considers these arguments below.
The limitations period applicable to § 1981 claims brought in a federal court sitting in Illinois is two years, Smith v. Firestone Tire & Rubber Co., 875 F.2d 1325, 1326-28 (7th Cir. 1989), unless the § 1981 claims "relate back" to any claims included in an earlier filed, timely complaint. Under the relation-back doctrine, an amended complaint will be deemed to have been filed on the date of the original complaint if "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." FED. R. CIV. P. 15(c)(2). What this means is relatively straightforward: For the doctrine to apply, the new claim asserted in the amended complaint must arise out of the same core facts as the claims included in the original pleading. Bularz v. Prudential Ins. Co. of America, 93 F.3d 372, 379 (7th Cir. 1996). Significantly, therefore, the doctrine rescues untimely claims that arise from the same set of facts but that assert new theories of recovery. Donnelly v. Yellow Freight System, Inc., 874 F.2d 402, 410 (7th Cir. 1989), aff'd on other grounds, 494 U.S. 820, 108 L. Ed. 2d 834, 110 S. Ct. 1566 (1990).
The Seventh Circuit has not decided whether a plaintiff can use the relation back doctrine to tack untimely § 1981 claims to procedurally defective Title VII claims, the issue raised by the Defendant in this case. But at least one other circuit has, and has answered the question in the affirmative. In Goss v. Revlon, Inc., 548 F.2d 405 (2d Cir. 1976), the Second Circuit held that the plaintiff's untimely § 1981 claims related back to the Title VII claims in his original complaint, even though the Title VII claims were themselves untimely: The plaintiff had failed to file discrimination charges with the EEOC within the 180-day limitations period provided for by statute. Id. at 406. The court began by observing that § 1981, "although parallel to Title VII and directed in part at the same illegal practices," was not preempted by Title VII when that statute was passed as part of the Civil Rights Act of 1964. Id. at 407 (citing Alexander v. Gardner-Denver, Co., 415 U.S. 36 at 47-49, 39 L. Ed. 2d 147, 94 S. Ct. 1011). Accordingly, the court continued, the failure of a claimant to properly pursue her administrative remedies before the EEOC--an agency that plays no role in the handling of § 1981 violations--does not preclude her from bringing a parallel claim under § 1981. Goss, 548 F.2d at 407. Incorporating the relation-back doctrine into this general rule, the court logically concluded that nothing prevents a claimant from tacking an untimely § 1981 claim to a procedurally defective Title VII claim, so long as the § 1981 claim arises out of the same "transaction or occurrence" set forth in the original complaint.
Id. (quoting FED. R. CIV. P. 15(c)).
The facts in this case are analogous to the facts in Goss. As in Goss, the Plaintiff in this case is attempting to assert an otherwise untimely § 1981 race discrimination claim by relating it to a procedurally defective Title VII claim.
Because Goss unequivocally holds that Plaintiff may do so, this court concludes that the § 1981 claims in Plaintiff's amended complaint relate back to October 25, 1995, the date his original complaint was filed.
Even so, the acts of the Defendant that gave rise to Plaintiff's demotion, failure to promote, and harassment claims all occurred more than two years before Plaintiff filed his original complaint. His transfer to the night shift, the sole act on which he relies for his demotion claim, occurred in September 1992. Moreover, Defendant's latest act of non-promotion (the promotion of Matthew Murawski in Plaintiff's stead) occurred in September 1993. Finally, it is unlikely that any of Stell's alleged acts of harassment occurred after October 25, 1993. It is undisputed that Plaintiff was absent for most of the period between October 25, 1993 and February 14, 1994, the day he was terminated. Plaintiff himself attributes these absences to Stell's alleged harassment, so it is only logical to conclude that any harassment suffered by Plaintiff occurred prior to October 25, 1993. Thus, only Plaintiff's termination, which occurred on February 14, 1994, falls within the two-year limitations period applicable to § 1981 suits. Accordingly, Plaintiff's demotion and failure to promote claims under § 1981 are untimely.
This court now turns to the merits of Plaintiff's contention that Defendant discharged him on account of his race.
Stated broadly, § 1981 "addresses racial discrimination in contractual relationships." Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996). It applies to all entities, public or private, and, as amended by the Civil Rights Act of 1991, targets race discrimination in "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Litigants have invoked § 1981 most frequently to vindicate rights arising from the contract of employment. Morris, 89 F.3d at 413. In this respect, suits under § 1981 and Title VII often overlap, even though "§ 1981 and Title VII differ in the types of discrimination they proscribe[.]" Johnson v. City of Fort Wayne, 91 F.3d 922, 940 (7th Cir. 1996). Accordingly, in light of the fact that litigants commonly invoke both statutes interchangeably in employment discrimination suits, the Seventh Circuit has held the McDonnell Douglas burden-shifting scheme applicable to discrimination suits under § 1981. Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 511 (7th Cir. 1986).
A plaintiff seeking to prove discriminatory discharge has two routes available to him. First, she can put forth direct or, more commonly, circumstantial evidence of discrimination. In this case, Plaintiff argues that Stell's "damn Indian" comment, together with the fact that "Stell was responsible for recommending Nair's discharge [to Agnes Canning, the person who terminated Plaintiff] and the remark was made during the course of a conversation in which Stell stated that he intended to discharge Nair," constitute circumstantial evidence of discriminatory discharge. But even apart from the difficulty of imputing Stell's racist sentiment to Agnes Canning--a leap that must be taken if we are to believe Plaintiff's account--the statement was too remote in time from Plaintiff's discharge to be of much probative value. See, e.g. Hill v. Burrell Comm. Group, Inc., 67 F.3d 665, 669 (7th Cir. 1995) (noting by implication that circumstantially relevant oral statements must be made close in time to the plaintiff's termination to have probative value), overruled in part on other grounds by O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996); Knox v. First Nat. Bank, 909 F. Supp. 569, 574 (N.D. Ill. 1995) (observing both that "some nexus must exist between an alleged racial remark and the employment decision at issue under both the direct and indirect methods of proof before the remark can give rise to an inference of discriminatory intent" and that a remark of the decision maker may be so remote in time in time as to have de minimis probative value). By Plaintiff's own admission, Stell made the remark only "a few months" after he transferred to the night shift in September 1992 (Pl.'s 12(N)(3)(b) Stmt. P 74), but he was not terminated until February 1994.
The second way a plaintiff can establish discriminatory discharge--and the way on which Plaintiff has concentrated his efforts in this case--is through the indirect, burden-shifting method of proof already discussed in connection with Plaintiff's Title VII retaliation claims. But because in this court's view Plaintiff has failed to establish that Defendant's stated reason for terminating him, absenteeism, is pretextual, it need not decide whether Plaintiff has made out a prima facie case for discriminatory discharge.
Holmberg v. Baxter Healthcare Corporation, 901 F.2d 1387, 1391 (7th Cir. 1990) ("Where the plaintiff has not met [his] burden of showing that [his employer's] explanations are merely a pretext for discrimination, it is not necessary to decide whether he has also established a prima facie case."). Instead, it will proceed directly to an analysis of the pretext issue.
Pretext has been defined by the Seventh Circuit as a "phony reason for some action," Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995), and may be established by either of two methods. First, a plaintiff can demonstrate pretext by "presenting direct evidence that a discriminatory reason motivated the employer's decision[.]" Essex v. United Parcel Service, 111 F.3d 1304, 1310 (7th Cir. 1997). Alternatively, where (as here) such evidence is lacking, a plaintiff can establish pretext by "presenting evidence that the employer's proffered reason is unworthy of credence, thus raising the inference that the real reason is discriminatory." Id. Particularly relevant to this latter method of proving pretext is evidence that the employer treated similarly situated employees outside of the plaintiff's protected class more favorably than she did the plaintiff. Id. at 1311. The "similarly situated" qualification is an important one, and the Seventh Circuit has interpreted it strictly. See, e.g. Wallace, 103 F.3d at 1398 (explaining that an American employee terminated by a Japanese company for botching a project had to demonstrate not just that the company did not fire a Japanese employee, but that the company did not fire a Japanese employee who had also botched a project).
Whatever method plaintiff chooses to establish pretext, the question is always whether the employer honestly believed its proffered reason for the discharge. Kralman v. Illinois Dept. of Veterans' Affairs, 23 F.3d 150, 156 (7th Cir. 1994). Proof that the employer discharged the plaintiff mistakenly or based its decision on bad policy, or even just plain stupidity, "goes nowhere as evidence that the proffered explanation is pretextual." Essex, 111 F.3d at 1310. Accordingly, to survive summary judgment, the plaintiff must advance facts from which a reasonable jury could infer that she was fired for discriminatory reasons. Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 348 (7th Cir. 1997).
Defendant urges that Plaintiff's chronic attendance problem justified his discharge. In support of his contention that this articulated reason for terminating him was a cover-up for race discrimination, Plaintiff makes two "indirect proof" arguments. First, he argues that two non-Indians with similar attendance records, Olivia Haley and Lionel Uribe, were not discharged. (Pl.'s Opp. Mem. at 12.) With respect to Olivia Haley, Defendant concedes it did not terminate her but argues that she was not similarly situated to Plaintiff because she was away from work pursuant to the terms of Defendant's long term disability policy. (Def.'s Mem. Supp. Mot. Summ. J. at 11; Haley Disability Document, Ex. 36 to Def.'s 12(M) Stmt.) Plaintiff neither contests that Haley's absences were justified under Defendant's disability policy nor argues that he was eligible for such benefits. (Pl.'s 12(N) Stmt. PP 54, 55.) Accordingly, this court concludes that Defendant's retention of Haley is irrelevant to Plaintiff's claim of disparate treatment because she was not similarly situated to him.
With respect to Lionel Uribe, Defendant argues that he would have been terminated for excessive absenteeism had he not chosen to resign on his own. Plaintiff asserts that this argument is "pure speculation" on Defendant's part (Pl.'s 12(N) Stmt. P 52), but he notes in his statement of material facts that Defendant issued Uribe a "final warning" on April 13, 1994. (Pl.'s 12(N)(3)(b) Stmt. P 105.) The court notes that Uribe did not resign until September 22, 1994, and that Defendant has not offered facts to demonstrate that Uribe resigned during the absence period immediately to follow the issuance of the final warning. (Def.'s 12(M) Stmt. P 52.) Nevertheless, where the evidence of Plaintiff's chronic absenteeism is weighty, Plaintiff bears a heavy burden to establish that Defendant would have retained Uribe despite his poor attendance record, and pointing to evidence that is at best ambiguous on this point is not enough to get past summary judgment. Essex, 111 F.3d at 1311 ("Plaintiffs cannot create issues of fact by pointing to the ambiguity of their own evidence.").
Perhaps more importantly, any probative value the Uribe situation has in proving pretext is outweighed by the fact that Defendant terminated two non-Indian employees in 1993 and 1994 for excessive absenteeism.
Plaintiff does not dispute that Defendant terminated non-Indian employees Craig Williams and Derrick Staggs for excessive absenteeism around the time that he was terminated. (Def.'s 12(M) Stmt. PP 49, 50, 51; Pl.'s 12(N) Stmt. PP 49, 50, 51.) In this court's view, a reasonable jury could not logically infer from the sum of these actions that the real reason for Plaintiff's discharge was discriminatory.
Plaintiff's second argument in support of his contention that the stated reason for his discharge is pretextual is that Defendant "failed to adhere to its own attendance policy and did not issue the requisite number of warning memos to Nair before terminating his employment." (Pl.'s Opp. Mem. at 12.) According to Plaintiff, Defendant's policy authorizes dismissal only when an employee accrues six absence occurrences in a 12-month period, and then only if the employee has received four warning memoranda under the "progressive" warning system set forth in the policy. (Pl.'s Opp. Mem. at 12; Pl.'s 12(N) Stmt. P 49). Evidence of pretext, he contends, arises from three "facts." First, Plaintiff claims to have accrued four absence occurrences and two warning memoranda in the 12-month period prior to his termination.
(Pl.'s 12(N)(3)(b) Stmt. P 94.) Second, Defendant impermissibly based its decision to terminate Plaintiff on his long history of absenteeism instead of confining its evaluation to the 12-month period immediately preceding Plaintiff's termination. (Pl.'s Opp. Mem. at 12; Canning Dep. at 49.) Finally, Plaintiff asserts (without citation to the record) that non-Indian employees terminated for excessive absenteeism in 1993 "received the appropriate number of warnings" and were terminated solely based upon their attendance records in the 12 months period to their discharge. (Id. at 12-13.)
Although it is true, as Plaintiff points out, that an employer's failure to follow its own procedures is relevant to a showing of pretext, Futrell v. J.J. Case, 38 F.3d 342, 349 (7th Cir. 1994), it is also true that an employee's subjective interpretation of what those procedures are cannot create a genuine issue of fact on the issue of pretext. Cf. Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1221 (7th Cir. 1991) (observing that the plaintiff's "self-serving testimony" that he was fired for reasons other than those stated by his employer amounts to no evidence at all), overruled in part on other grounds by Oxman v. WLS-TV, 12 F.3d 652 (7th Cir. 1993). In this case, Plaintiff has simply failed to demonstrate that Defendant deviated from its attendance policy in terminating him. First, Plaintiff has failed to establish that the policy's literal language permits termination only after an employee has received four warning memoranda and accrued six absences in a 12-month period. This is hardly surprising; the language of the policy unambiguously provides that the progressive "six absence, four warning" flagging system is a guideline, not a hard and fast rule, for determining whether termination is appropriate. (Attendance Policy, Ex. 21 to Def.'s 12(M) Stmt.) Moreover, nowhere does the policy prohibit supervisors from taking an employee's attendance history into account in deciding whether to take disciplinary action. Rather, the policy provides that "Possible termination will be reviewed in light of the individual circumstances and attendance patterns demonstrated by the employee." (Id.) Second, Plaintiff has not shown that the circumstances surrounding the terminations of similarly situated employees necessarily warrants a finding that Defendant's attendance policy is as inflexible as he says it is. Admittedly, the record suggests one non-Indian employee, Craig Williams, was allowed six absences and four warning memoranda prior to being terminated. At the other extreme, however, is the case of Derrick Staggs, a non-Indian employee who accrued two and a half absence occurrences in his first month on the job and was promptly terminated.
(Def.'s 12(M) Stmt. P 50; Pl.'s 12(N) Stmt. P 50.) At best, Plaintiff has shown that Defendant's attendance policy requires subjective judgment and is susceptible to arbitrary application, but that alone is not enough to raise a genuine issue of discrimination. Senner v. Northcentral Technical College, 113 F.3d 750, 756-57 (7th Cir. 1997). Accordingly, Plaintiff cannot prevail in his claim that Defendant's stated reason for his termination, absenteeism, is a pretext for race discrimination.
Finally, this court notes that Defendant has done more than merely poke holes in Plaintiff's pretext arguments--it has affirmatively put forth evidence to bolster its claim that poor attendance, and not racism, led to Plaintiff's discharge. As recited in this court's statement of facts, Defendant has demonstrated that Plaintiff had problems showing up for work from the beginning of his employment relationship with Defendant. In 1982, one of Plaintiff's supervisors noted that he was "absent and late more often than normal. Often away from his desk without good reason." (September 1982 Performance Appraisal, Ex. 22 to Def.'s 12(M) Stmt.) It is undisputed that Defendant issued Plaintiff a total of seven warning memoranda for poor attendance between 1984 and 1991. (Nair Dep. at 98; 1984-91 Disciplinary Memoranda, Ex. 23 to Def.'s 12(M) Stmt.) Each of these memoranda stated that "an immediate and lasting improvement" in Plaintiff's attendance was expected, and that failure to improve could impact his future performance appraisals, merit increases, and tenure with the Bank. (1984-91 Disciplinary Memoranda, Ex. 23 to Def.'s 12(M) Stmt.) Plaintiff's July 1991 performance appraisal 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 was again specifically warned in August 1993, after a series of three prolonged absences, that "unless an immediate and lasting improvement is made in [Plaintiff's] attendance record, it will affect his future promotions, salary reviews and could lead to his termination." (8/13/93 Memorandum, Ex. 26 to Def.'s 12(M) Stmt.) (emphasis supplied). Still undeterred, Plaintiff embarked in November 1993 on yet another absence period and upon his return to work in mid-December received what would ultimately be his final warning before Defendant terminated him. (12/15/93 Memorandum, Ex. 23 to Def.'s 12(M) Stmt.) To impress upon Plaintiff the seriousness of his attendance problem, moreover, this memorandum tracked Plaintiff's abysmal attendance record since 1988. (Id.) Less than two weeks later, on December 23, 1993, Plaintiff began a final absence period, and was terminated when he returned to work on February 14, 1994. (Canning Dep. at 101.)
This court concludes that no reasonable jury could infer from these facts that Defendant's stated reason for terminating Plaintiff, absenteeism, is a pretext for race discrimination. The record shows, instead, that Defendant waited many months to take disciplinary action on an employee whose attendance record was nothing short of abysmal. This record does not demonstrate discriminatory animus.
Plaintiff's Title VII claims of race discrimination and national origin discrimination are dismissed due to his failure to assert these claims in his underlying EEOC charge. He may, however, pursue his claims that the Bank retaliated against him for having filed previous charges of discrimination. His claims of harassment by his supervisor and retaliatory failure to promote him in August and September 1993 are timely and survive summary judgment. Because there is no genuine dispute that absenteeism was the reason for the discharge, however, he has not created a dispute of material fact as to whether his discharge was retaliatory. For similar reasons, his § 1981 race discrimination claim also fails. The court denies Defendant's motion for summary judgment with respect to Plaintiff's retaliation claims of harassment and failure to promote. In all other respects, Defendant's motion is granted.
Dated: November 17, 1997
REBECCA R. PALLMEYER
United States Magistrate Judge