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January 16, 2002


The opinion of the court was delivered by: Elaine E. Bucklo, U.S. District Judge


Michael Blakely was employed as an inventory analyst by Brach & Brock Confections, Inc. ("Brach"), in its Chicago, Illinois, distribution department. He was fired on January 11, 1999, for insubordination and performance deficiencies. After receiving a right to sue letter from the EEOC, he filed this complaint alleging race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, and 42 U.S.C. § 1981, disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq., and a state cause of action for intentional infliction of emotional distress. Brach moves for summary judgment on all counts, and I grant the motion.


After serving as a temporary employee for Brach, Michael Blakely, an African-American man, was hired as a permanent employee of the distribution department in March 1998. He was responsible for coordinating product shipments from Brach's various warehouses with the customer service department, which is in Chattanooga, Tennessee. Art Jalove was the head of the distribution department while Blakely was employed there, and Blakely's immediate supervisor, Russ Schroeder, reported to Jalove. While Blakely was working for Brach, he was being treated for Grave's Disease, which is a thyroid condition.

Blakely was trained by other analysts when he first began working at Brach. In July 1998, Schroeder, Blakely's immediate supervisor, talked to Blakely about problems with his work, including trouble meeting deadlines and waiting so long to perform some of his duties that he held up the shipping process, but Schroeder said that he did not see any improvement in Blakely's performance after talking to him. On September 3, 1998, Blakely received a "needs improvement" rating on his performance evaluation. Among the comments were that Blakely lacked initiative and rarely followed up on or checked his own work, required constant monitoring, was not reliable in completing assigned and daily tasks, and had little regard for teamwork. The same day, Blakely wrote a memorandum stating that he strongly disagreed with the appraisal, and followed it up with a detailed response memorandum on September 8, 1998.

On the afternoon of January 11, 1999, Jalove met with Dennis Donnellan, a representative of Brach's human resources department, and Blakely to discuss his work load and performance and the problems that he had been having at work. Prior to the meeting, Jalove says he had no intention of firing Blakely because of the problems with his performance. During the meeting, Jalove went over Blakely's responsibilities and asked him if he understood his duties and was willing to perform the job as described. Blakely said that he was. Jalove asked him if there were any issues he wanted to discuss, and Blakely responded that he did not want to discuss his pending EEOC charge without his lawyer present. He assumed the meeting was over and got up to leave. Jalove told him the meeting was not over and yelled at him to sit down, and Donnellan said that it might be considered insubordination if he left the meeting. Blakely says that neither Jalove or Donnellan said anything after that, and that the three of them were just staring at each other, so he concluded that the meeting was over and left.

After Blakely walked out, Jalove and Donnellan decided to fire Blakely for his insubordination and performance problems. Blakely had gone back to his desk and was getting ready to leave for a doctor's appointment. Jalove approached him and asked him to return to his office, but when Blakely refused because he was on his way out, Jalove fired him in the hallway, took his I.D. card and had him escorted out by a security guard. Blakely filed this lawsuit after receiving a right to sue letter from the EEOC.

Summary judgment is proper when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir. 2001).

II. Race Discrimination

A. Disparate treatment

"While section 1981 and Title VII differ in the types of discrimination they proscribe, the methods of proof and elements of the case are essentially identical." Von Zuckerstein v. Argonne Nat. Lab., 984 F.2d 1467, 1472 (7th Cir. 1993). "A plaintiff bringing suit under section 1981 or Title VII can meet his burden of proof for establishing intentional discrimination either through direct proof of discriminatory intent, or through the indirect, burden-shifting method of proof first elaborated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Id. (citations omitted). There is no direct evidence of race discrimination here, so Blakely proceeds under McDonnell Douglas.

To establish a prima facie case for race discrimination, Blakely must show that he: (1) belongs to a protected class, (2) performed his job according to his employer's legitimate expectations, (3) suffered an adverse employment action, and (4) was treated less favorably than other similarly situated employees outside the protected class.*fn1 Curry v. Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001). "Establishing a prima facie case creates a presumption of discrimination and shifts, the burden to the employer to produce evidence of a legitimate, race-neutral reason for the adverse action." Id. "If the employer meets this burden of production, the plaintiff then has the burden to show that the stated nondiscriminatory reason is pretextual." Id.

To avoid summary judgment, Blakely must come forward with evidence that demonstrates there is a material question of fact for trial as to each element of the prima facie case. Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). There is no dispute about elements (1) and (3), but Brach claims that it is entitled to judgment on the basis of elements (2) and (4). Blakely's race discrimination claim fails because he does not satisfy the "similarly situated" element of the prima facie case. In his affidavit, Blakely states that, although Schroeder approached him before his performance, review about problems or concerns with some of his work, he observed Schroeder having similar conversations with "virtually all of the other analysts." Blakely Aff. ¶ 9. But he does not identify the race of the other analysts, whether their overall performance was comparable to his, or whether they were fired for unsatisfactory performance. He does not dispute that he received the worst evaluation of all of the analysts supervised by Schroeder. Plaintiff's Response to Material Facts ¶ 38. Because he cannot demonstrate that non-African American employees with the same documented performance problems were treated differently, he has failed to meet his initial burden under the McDonnell Douglas method, see McPhaul v. Board of Comm'rs of Madison County, 226 F.3d 558, 565 & n. 3 (7th Cir. 2000) (Co-workers with better performance evaluations were not ...

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