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July 21, 1998

Louis Sidney, Plaintiff,
Humana Health Care Plan, Inc., Defendant.

The opinion of the court was delivered by: CASTILLO

Plaintiff Louis Sidney filed suit in this Court alleging that his former employer, Humana Health Care Plan, Inc. ("Humana"), discriminated against him on the basis of his race. Humana terminated Sidney following its investigation of another employee's claim that Sidney held a scissors to her throat. Count I of Sidney's complaint alleges that his termination violated 42 U.S.C. § 1981. Count II claims that his termination violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Humana has moved for summary judgment on both counts. For the reasons that follow, we grant Humana's motion.


 On August 29, 1988, the Michael Reese Health Plan hired Sidney as the Chief Technician of the Diagnostics Department at its Evanston, Illinois center. Def.'s Facts P 3. Sidney continued to hold his position as Chief Technician after Humana, a nationwide health maintenance organization, acquired the Michael Reese Health Plan in 1991. Id. at PP 1-3. As the Chief Technician, Sidney directed the operations of the Diagnostic Department, which encompassed the radiology, laboratory, and EKG areas, and supervised the Department's employees, including radiology technicians. Id. at P 4. Sidney reported to Center Manager Pat Duez, who in turn reported to Timothy Yusk, the Regional Administrative Director since 1994. Id. at P 5; Pl.'s Add'l Facts P 1. Sidney was the only black male supervisor at Humana's Evanston facility. Pl.'s Add'l Facts P 2.

 In May 1995, Lori Eaton, a radiology technician under Sidney's supervision, complained to Duez that Sidney had asked female employees to lift their lab coats. *fn2" Pl.'s Add'l Facts P 3. Eaton made this complaint during a meeting about the Employee Improvement Program that Sidney had designed to correct deficiencies in Eaton's work performance. Id. Upon learning about Eaton's complaint, Yusk and Shari Swartz (then Manager of Employee Relations) investigated the allegation by speaking with several employees. Def.'s Facts P 10. Although the investigation did not confirm Eaton's allegation, it revealed evidence of other improper behavior. Id. at P 11. Specifically, two employees independently informed Yusk and Swartz that Sidney had created an uncomfortable working environment by making comments about female employees' clothing and appearance, standing in close proximity to female employees, and using objects as an extension of touch when interacting with them. Id ; Yusk Dep. 22-24.

 Upon the conclusion of his investigation, Yusk determined Sidney's conduct to be inappropriate and issued Sidney a written warning on July 7, 1995, stating that "any further incidents of improper conduct will result in further disciplinary action up to and including termination of employment." Id. at P 12; Yusk Aff., Ex. 1. Yusk never revealed to Sidney that Eaton was the employee who initiated the complaint against him. Sidney testified that Yusk told him that this write-up would remain in his file for one year and then would be discarded. Pl.'s Add'l Facts P 7; Sidney Dep. 44.

 By 1996, Humana had replaced Pat Duez with new Center Manager Ann Scheid. Scheid and Sidney worked well together. Unfortunately, the same cannot be said about Sidney's relationship with Eaton. Sidney issued Eaton an employee consultation in February 1996 for her absenteeism. Pl.'s Add'l Facts P 11; Ex. 7. A month later, a patient complained that Eaton was rude and Sidney warned Eaton that she would be disciplined if her unacceptable behavior continued. Pl.'s Add'l Facts P 12. Additionally, in March 1996, Sidney instituted a plan, with Shmid's approval, which required each technician to perform a mammogram every twenty minutes. Pl.'s Add'l Facts P 13. This plan significantly increased the technicians' workload, much to the dismay of Eaton and other technicians. Id.

 On June 4, 1996, Schmid told Yusk that Judy Sandler, a radiology technician under Sidney's supervision, had complained that Sidney had approached her from behind, reached over her right shoulder, and pointed scissors at her throat. Id. at P 13. Schmid also told Yusk that although she had spoken with Sidney and asked him to apologize to Sandler, Sandler had submitted an Occurrence Report and thus an investigation would have to be conducted. Id. at P 14. Yusk was concerned about Sandler's allegation and Schmid's failure to report the incident earlier. Id. at P 15.

 Humana's Discipline Guidelines state that immediate termination may be justified if an employee engages in a "critical offense" and that an employee should be suspended pending the outcome of an investigation by management. Id. at PP 6, 8. The Guidelines list "threatening, intimidating, or coercing patients, customers, employees, or others" and "negligent or willful acts, or conduct detrimental to patient care, customer service, employees, or facility operations" as examples of misconduct which constitute critical offenses. Id. at P 7. Yusk, Narin Trent (Assistant Executive Director of Human Resources), and Desiree Thompson (then Employee Relations Specialist) agreed that because Sidney was alleged to have committed a critical offense -- threatening an employee -- he should be suspended immediately pending an investigation. Id. at PP 16-17. At Yusk's direction, Schmid suspended Sidney on June 5, 1996, explaining that Sandler had reported that Sidney had approached her in a physically threatening manner. Id. at PP 18-19.

 Yusk and Thompson began an investigation the following day. Id. at P 20. They spoke first with Sandler, who informed them that on May 28, 1996, she and Eaton had been talking with Sidney in a file room about a problem with a mammogram that she had performed when Sidney approached her from behind, reached over her right shoulder, and pointed scissors at her throat. Id. at P 21. Sandler also said that when Eaton called Sidney's name, Sandler asked Sidney whether he was threatening her and that Sidney then left the room. Id. Finally, Sandler told Yusk and Thompson that she immediately reported the incident to Schmid that same day (May 28), but when nothing was done, she submitted the Occurrence Report on May 31 on the advice of her attorney. Id. at P 22. Eaton confirmed Sandler's explanation of the May 28 incident. Id. at P 23. Moreover, Sandler and Eaton submitted written statements which coincided with their oral accounts of the incident. Id. at P 24.

 Subsequently, Yusk reviewed a written statement submitted by Sidney at Yusk's request. Id. at P 25. In his statement, Sidney described the incident as occurring on May 31 (rather than May 28) while Sandler, Eaton, and he had been in the file room discussing an unread mammogram performed by Sandler that was returned by an Evanston Hospital radiologist. Id. at P 26. Specifically, Sidney stated that:

On Friday May 31, 1996, at approximately 4:45 p.m., Judy Sandler, Lori Eaton and I were talking in the file room. It was the end of a busy day. The topic of conversation was an unread mammogram that was returned from Evanston Hosp. Judy was upset because it was a mammogram which she had done. We discussed the fact that Radiologists don't always follow their own protocol regarding returned mammogram [sic]. I told Judy not to worry in that the mammogram could be resubmitted. It was obvious that Judy was disturbed because she had put a great deal of effort into producing a good mammogram. To lighten the mood, I picked up a pair of scissors and with my fingers over the blades, I reached over Judy's shoulder and said "those radiologists." My actions were misinterpreted by Lori Eaton, who said, "Lou is going to stab you." I immediately said, "you must be kidding." Judy had a surprised look on her face but did not appear angry. Lori and Judy began whispering as I left the room. It was the end of a busy day and for a brief moment I compromised myself. . . . I feel that a three day suspension is unfair, but I do realize that disciplinary action may be required.

 Def's Ex. E. (emphasis added).

 Sidney later testified that before the incident with Sandler, he had already been holding scissors in his hand because he was cutting the front of an old X-ray envelope so that he could paste it to a new envelope. Pl.'s Add'l Facts P 14. Further, he testified that he left the room because he was frightened by the look of hatred in Eaton's eyes when she stated to Sandler, "Lou is going to stab you." Def.'s Resp. Add'l Facts PP 18-19. Finally, Sidney added that he felt compromised when he realized that he was in a room with two people who wanted to harm him. Pl.'s Add'l Facts P 21. Humana highlights the manner in which this explanation apparently contradicts his previous written statement confessing that "for a brief moment, I compromised himself". Def.'s Resp. Add'l Facts P 21.

 Yusk, Thompson, and Trent deemed Sidney's written statement to be an admission that Sidney had placed a sharp object in the vicinity of Sandler's body. Id. at P 28. Based on this admission, Sandler's and Eaton's statements about the incident, and Sidney's prior written warning, Yusk, Thompson, and Trent decided that Sidney should be discharged for committing a critical offense. Id. at P 29. Yusk admitted that Sidney's intent to threaten Sandler was not a factor in the decision to terminate him. Yusk Dep. 18. Thompson explained that it was the employee's perception, not Sidney's intent, that was critical to their determination. Accordingly, Sidney was terminated on June 11, 1996. Id. at P 30. Thereafter, Sidney appealed ...

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