The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff entered into an employment agreement with the
defendant which was terminated four months after it was executed.
He sues for race discrimination and breach of contract. Defendant
moves for summary judgment on all claims, which I deny; plaintiff
moves for summary judgment based on breach of employment
contract, which I grant in part, and for a protective order,
which I deny.
The defendant, Community Action Services, Inc. ("CASI"), is a
not-for-profit organization that provides community-based busing
for school children. The plaintiff, Michael Perry, began working
with CASI in 1985 when CASI contracted with ATE Management
Company ("ATE"), a management consulting and placement firm
servicing the transportation industry. In spring of 1996, CASI's
business relationship with ATE ended; Mr. Perry continued
at CASI with another agency. Although not an "employee" in the
strict sense, Mr. Perry ran CASI's operations on a day to day
basis for approximately twelve years. In April 1997, CASI and Mr.
Perry entered into an employment agreement (the "Agreement")
whereby Mr. Perry worked directly for CASI as President and Chief
Executive Officer ("CEO"). The Agreement was signed by Mr.
Donaldson, then the acting chairperson of the CASI Board of
Directors (the "Board"). Mr. Perry is white, and Mr. Donaldson is
African-American, as were all but one of the members of the Board
at the time Mr. Perry's contract was signed.
In the summer of 1997, friction arose between Mr. Perry and the
Board, specifically Chairperson Donaldson, about the management
of CASI. The Board ordered Mr. Perry to release two employees, an
accountant and a management supervisor, who were white. He
disagreed with this decision. On July 15, 1997, the Board passed
a motion to renegotiate Mr. Perry's employment agreement. At a
September 9, 1997 board meeting, Mr. Donaldson suggested that
CASI increase its minority representation in management and move
some of its funds to a minority-owned bank.
On September 12, 1997, Mr. Perry sent a letter to Mr. Donaldson
and Mr. Robert Wharton, the President of the Community Economic
Development Association ("CEDA"), which expressed his
disagreement with recent Board actions and belief that the safety
and fiscal soundness of CASI were at risk and could no longer be
personally guaranteed by him. CEDA had founded CASI to provide
transportation services for its Head Start program, and CASI's
contract with CEDA was its primary source of income. CEDA also
maintains a significant presence on CASI's Board of Directors.
On September 30, 1997, the Board voted to terminate Mr. Perry's
employment with CASI effective October 1, 1997, pursuant to
paragraph 9C of the Employment Agreement and sent him a letter to
this effect. Mr. Perry received a severance payment equivalent to
six months' salary. Mr. Perry's former functions have been
outsourced by CASI to independent contractor Ernest R. Sawyer
Enterprises, which has placed an African-American as acting
general manager of CASI.
Mr. Perry filed this action alleging race discrimination in
violation of Title VII and breach of contract under Illinois law
by CASI. The parties have filed cross motions for summary
Summary judgment is appropriate where there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R.Civ.P. 56(c); Lexington Ins.
Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999). I
review the entire record, drawing all reasonable inferences from
the record in the light most favorable to the nonmoving party.
Cornfield by Lewis v. Consolidated High School Dist. No. 230,
991 F.2d 1316, 1320 (7th Cir. 1993). The party opposing the
motion, however, must make a showing sufficient to establish any
essential element for which it will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986).
III. Title VII Claims concerning Mr. Perry's Termination
Under Title VII, it is unlawful for an employer "to discharge
any individual . . . because of such individual's race."
42 U.S.C. § 2000e-2(a)(1)(1988). The Supreme Court has held that
Title VII applies to white employees as it does to all races.
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct.
2574, 49 L.Ed.2d 493 (1976); Hill v. Burrell Communications
Group, Inc., 67 F.3d 665 (7th Cir. 1995).
A plaintiff may present direct or indirect evidence to
demonstrate unlawful race discrimination. Direct evidence is
evidence of bias "that can be interpreted as an acknowledgment of
by the defendant or its agents." Troupe v. May Dep't Stores
Co., 20 F.3d 734, 736 (7th Cir. 1994). The direct evidence of
racial discrimination offered by Mr. Perry consists of statements
made by Chairperson Donaldson.*fn1 During a Board meeting, Mr.
Donaldson announced his goal for CASI to place some funds in a
minority-owned bank and "to bring more African-Americans and
minorities into the process because that's who we service, that's
our mission. And even to the point of hiring people here in this
agency, especially on the upper-echelon of management. That's
what we're going to do." Mr. Perry claims that he was the only
person in upper management at CASI, and so, as a white man, did
not fit the mission of CASI as conceived by Mr. Donaldson. As a
result, he was terminated and replaced with an African-American
manager with less experience. CASI argues that this innocuous
statement is taken out of context and is insufficient to
demonstrate any discriminatory animus. CASI also disputes Mr.
Perry's claim that he is the only upper management employee or
that there were no white managers.
For purposes of this motion, I must accept that Mr. Perry was
the only person in the "upper echelon" of CASI's management.
Moreover, Mr. Donaldson's statement was made only three weeks
before Mr. Perry was terminated. A reasonable trier of fact could
conclude that this statement, which dealt explicitly with
employment and was made by an aggressive Chairperson who was
admittedly taking a more active role in the management of CASI,
was probative of discrimination and "causally related to the
discharge decision making process." Geier v. Medtronic, Inc.,
99 F.3d 238, 242 (7th Cir. ...