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March 29, 2004.


The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge


Plaintiff Michael Taylor sued his former employer, defendant Northeast Illinois Regional Commuter Railroad Corp. ("Metra"), for discriminating against him because of his race in violation of Title VII, 42 U.S.C. § 2000e, et seq. Before the court is Metra's motion for summary judgment which, for the reasons that follow, is granted.


  Taylor resigned from Metra on April 9, 2001, after working for the commuter rail service company for a little over three years. In November of 1997 Taylor applied for but was denied a paralegal job in Metra's legal department. In February of 1998 Metra hired Taylor as a cleaner of passenger rail coaches. In June of 1998 Taylor applied for and was denied a higher-paying litigation paralegal job in Metra's legal department. In November of 1998 Metra again posted a job opening for a paralegal. The posting described the minimum qualifications for the position and listed its duties, such as maintaining case files, filing papers in federal and state Page 2 courts, responding to certain discovery requests, drafting memoranda and form pleadings, and performing basic law research like cite-checking. The posting also advertised the paralegal job as level P8 with an expected salary in the "high twenties." Taylor applied for the position, and Metra awarded him the job. Taylor received a starting salary of $29,572 and began working as a paralegal in January of 1999.

  Over time, Taylor and Metra became mutually dissatisfied with Taylor's work performance and conditions of employment. Disputes between Taylor and his supervisors in Metra's General Counsel's office grew out of Taylor's use of sick time and unpaid leave, his failure to account accurately for his time on daily time sheets, his time-consuming performance of court filings and other projects, and his lack of productivity due to excessive time away from the office and on the phone. Taylor offers an excuse for each incident of alleged under-performance but he does not dispute the underlying facts. Instead, he maintains that each time he and Metra faced a conflict about his work and Metra placed certain restrictions on Taylor, it was due to Metra's race discrimination and not his work performance. In particular, he points to the fact that he was required to fill out daily time sheets, get prior approval for unpaid leave, and sign in and out when he left the office during the work day as evidence of race discrimination. Further, Taylor alleges that he was given more work and was paid less than non-black paralegals.

  Taylor filed a charge of discrimination with the EEOC on March 29, 2001, and this lawsuit on August 15, 2001. Taylor complains that Metra discriminated against him because of his race when it: (1) failed to hire him for a higher-paying paralegal position for which he was qualified and instead hired a white man, (2) paid him less and gave him lower annual Page 3 salary increases than non-black paralegals, (3) gave him more work than non-black paralegals, and (4) made him account for his work and vacation time more strictly than non-black paralegals. Metra moved for summary judgment, arguing that Taylor's claims are time-barred and that even if they weren't, its employment actions with respect to Taylor did not constitute racial discrimination.


  Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). To withstand summary judgment on a Title VII claim, the plaintiff must "present sufficient evidence from which a jury could find that his employer acted with a discriminatory intent" in making employment decisions about the plaintiff. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). Before discussing the merits of Taylor's discrimination claims) the court turns to Metra's assertion that Taylor's claims are untimely,
  Title VII requires plaintiffs to file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 300 days after the conduct giving rise to the charge occurs. 42 U.S.C. § 2000e-5(e)(1); Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). However, the limitations period is calculated differently for claims based on discreet acts of discrimination or retaliation (such as termination, failure to promote, or refusal to hire) than for claims based on a hosfile work environment. Specifically, a Page 4 plaintiff alleging a discrete discriminatory act will be time-barred if he files his charge more than 300 days after the objectionable act occurred, but a plaintiff alleging a hosfile work environment will not be time-barred "so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Morgan, 536 U.S. at 122.

  Since Taylor does not plead his claims of discrimination in separate counts and does not distinguish between discrete acts and those contributing to a hosfile work environment, the court must do it for him. First, in one of Taylor's allegations he states that he was not initially hired as a litigation paralegal, a P9 position that paid higher than his P8 paralegal position, because of his race. A failure to hire is a discrete act of discrimination that is subject to the 300-day statute of limitations. Delaware State College v. Ricks, 449 U.S. 250, 257-58 (1980) (holding that decision to deny tenure is discrete act and claim accrues at denial of tenure). Here, Taylor applied for and was denied the P9 paralegal position in June or July of 1998, but he did not file his charge with the EEOC until March 29, 2001. Since his EEOC charge was brought well outside the 300-day limitations period (which would have expired in April or May of 2000), Taylor's claim for discrimination based on Metra's failure to hire him for the P9 litigation paralegal position is time-barred.

  Next, another of Taylor's allegations charges Metra with paying him less than non-black PS level paralegals by not giving him a higher starting salary and by giving him lower annual salary increases. The Seventh Circuit has explained that for claims of discrimination based solely on disparate pay, each new paycheck received is "a fresh act of discrimination" and is not untimely simply because the initial act of discrimination occurred outside the Page 5 300-day limitations period. Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1014 (7th Cir. 2003). To the extent that Taylor's charge of discrimination is based On his being hired as a P8 paralegal at a lower starting salary than non-black P8 paralegals, he states a strict paycheck claim. This means that checks received by Taylor within the 300-day limitations period which reflect Metra's initial decision to pay him less than non-black P8 paralegals will not be time-barred. Reese, 347 F.3d at 1013. But, to the extent that Taylor's charge of discrimination is based on his being given a lower annual salary increase than non-black P8 paralegals, he complains of discrete acts of discrimination that are subject to the 300-day limitations period. Reese, 347 F.3d at 1013 (explaining difference between simple pay allegation and one involving act of discrete discrimination, like refusal to promote or to give a raise). This means that Taylor potentially can recover only for discriminatory pay received after June 2, 2000 (the date 300 days prior to the filing of his EEOC charge), which in turn means only for his 2001 salary increase. Hildebrandt v. Ill. Dept. of Natural Reese, 347 F.3d 1014, 1028 (7th Cir. 2003).

  Finally, as best as the court can tell, Taylor's remaining allegations of being assigned more work, having to sign in and out, fill out daily time sheets, and request prior approval for unpaid leave can be construed only as a claim for hosfile work environment.*fn1 Morgan, 536 U.S. at 117 (defining hosfile work environment claim as "a series of separate acts that collectively constitute one unlawful employment practice"). Thus, provided one of Taylor's Page 6 allegations occurred after June 2, 2000, and the court considers each allegation part of one unlawful employment practice, all of his hosfile work environment allegations may be considered in determining Metra's liability under Title VII. Morgan, 536 U.S. at 122. Assuming for the moment that Taylor's allegations are part of the same discriminatory employment practice and are severe enough to constitute an adverse action (more on this later), at least one of them occurred within the limitations period: Metra informed Taylor in writing in February of 2001 that he needed to complete his daily time sheets. Consequently, Taylor's hosfile work environment claim is not time-barred.


  The court next turns to the merits of Taylor's claims. Under Title VII discrimination can be proved by direct or indirect evidence. A plaintiff using the direct method may present either direct or circumstantial evidence that establishes outright a discriminatory reason for his employer's animus. Venturelli v. ARC Community Servs., Inc., 350 F.3d 592, 599 (7th Cir. 2003). Direct evidence "essentially requires an admission by the decision-maker that his actions were based on the prohibited animus." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000) (describing direct evidence as "eyewitness testimony as to the employer's mental processes"). Admissions of discrimination by employers are rarely found due to the fact that "most employers are careful not to openly discriminate and certainly not to publicly admit it," id.

  If the plaintiff lacks such direct evidence he may make his case based on indirect evidence, applying the burden-shifting method of proof established in McDonell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas framework requires the plaintiff Page 7 first to establish a prima facie case of discrimination by demonstrating that he: (1) belongs to a protected class, (2) performed his job to his employer's legitimate expectations, (3) suffered an adverse employment action despite performing satisfactorily, and (4) received less favorable treatment than similarly situated employees outside the protected class. Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d 1014, 1030 (7th Cir. 2003). If the plaintiff succeeds, the burden shifts to the defendant to provide legitimate, non-discriminatory reasons for its conduct; and if the defendant succeeds, the burden shifts back to the plaintiff to show that the defendant's reasons were pretextual. Rhodes v. Illinois Dep't of Transp., No, 03-1651, 2004 U.S. App. LEXIS 3668, at *10 (7th Cir. Feb. 26, 2004), ...

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