The opinion of the court was delivered by: Elaine E. Bucklo, U.S. District Judge
NEMORANDUM OPINION AND ORDER
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.
Before his evaluation, in July 1998, Blakely had received a racially
offensive e-mail from a co-worker and had complained to his supervisors.
In the September 8 memorandum about his evaluation, Blakley also
complained about the e-mail, mistreatment by other co-workers who called
"dumb" and "stupid," and about his medical condition. He had several
meetings with his supervisors about his evaluation and grievances, but,
unsatisfied by their response, he filed an EEOC charge on November 5,
1998, alleging race and disability discrimination and retaliation.
Blakely says that, after his supervisors became aware that he filed his
EEOC charge, they retaliated against him by: denying him a promised
performance review; drafting a "poison pen" memorandum in December listing
(and, Blakely claims, exaggerating) problems with Blakely's performance
and attendance going back to his review on September 3, 1998; sending him
an attendance warning that admonished him for leaving early and arriving
late without considering whether his absences were for medical
appointments; baiting him into a confrontation about vacation days under
false pretenses; and stating that, where Blakely's discrimination claim
was concerned, that "enough is enough."
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).
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 ...