The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Barry Baker is a current employee of Defendant Pactiv
Corporation ("Pactiv"). On August 19, 2002, Baker filed a charge with the
Equal Employment Opportunity Commission ("EEOC") alleging race
discrimination and retaliation with respect to his 2002 performance
review and raise. After that charge was dismissed by the EEOC, Baker
filed this lawsuit. Baker alleges that he was subject to the following
adverse employment actions on the basis of his race and on prior lawsuits
and charges filed with the EEOC: (1) a worse performance review than was
deserved, (2) a lower merit increase than was expected, (3) two false
accusations made by co-workers, (4) a failure by Pactiv to discipline the
two co-workers who made the false complaints, (5) the posting of an
inaccurate schedule by his supervisor, Walter Danko, and (6) the receipt
of a counseling e-mail from a manager, Wenxiu SZhao.
Pactiv now moves for summary judgment on all of Baker's discrimination
and retaliation claims. Summary judgment is proper when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-323 (1986). In determining whether any 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). A genuine issue of fact
exists only when, based on the record as a whole, a reasonable jury could
find for the non-movant. Pipitone v. United States, 180 F.3d 859, 861
(7th Cir. 1999).
First, Pactiv argues that Baker's claim relating to the allegedly
incorrect schedule posted by Danko in March 2001 is time barred because
the incident occurred more than 300 days before Baker filed his EEOC
complaint in August 2002. See Beckel v. Wal-Mart Assoc., 301 F.3d 621,
622-24 (7th Cir. 2002). Baker argues that since this claim is closely
related to discriminatory action, i.e. the review/merit increase, that
did take place within the 300 day period, it is not time barred.
However, "[d]iscrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed
charges. Each discrete discriminatory act starts a new clock for filing
charges alleging that act." Hildebrandt v. Ill. Dep't of Natural Res.,
347 F.3d 1014, 1026-1027 (7th Cir. 2003)(quoting AMTRAK v. Morgan,
536 U.S. 101 (2002)). Thus, I find that Baker's claim concerning the
incorrect schedule is, in fact, time barred.
Second, Pactiv argues that Baker's claims relating to the alleged false
accusations made by two co-workers, the failure of Pactiv to reprimand
the co-workers for making false accusations, the posting of the incorrect
schedule, and the receipt of a counseling e-mail are barred because they
were not raised in or fairly encompassed by Baker's EEOC charge. As a
general rule, any discriminatory acts alleged in a federal lawsuit must
be contained within the underlying charge of discrimination filed with
the EEOC or fairly encompassed within that charge. Cheek v. Western &
S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). The purpose of this requirement is to give the defendant notice of the factual basis of
the discrimination claims and allow the EEOC and the employer the
opportunity to settle the dispute. Id.
Baker argues that the false complaints, Pactiv's failure to discipline
the co-workers for making false complaints, the incorrect schedule, and
the counseling e-mail were encompassed by his EEOC complaint because they
contributed to his complained of review and merit increase. While a Title
VII plaintiff need not allege each and every fact that forms the basis of
his complaint, he may only make allegations that are reasonably related
to those contained in his EEOC complaint. Id. To be considered reasonably
related, allegations raised in a lawsuit must "at minimum, describe the
same conduct and implicate the same individuals" as the conduct and the
individuals implicated in the EEOC charge. Id. at 500 (emphasis in
original).
Baker's claims concerning the false complaints, Pactiv's failure to
discipline his co-workers for making those complaints, and the counseling
e-mail fail to meet this standard. The claims concerning the allegedly
false complaints made by Baker's co-workers, Pactiv's response to those
complaints, and the counseling e-mail do not concern the same individuals
as those implicated in Baker's EEOC complaint. The only person implicated
in the EEOC complaint was Walter Danko, the supervisor responsible for
Baker's review and raise. The allegedly false complaints against Baker
were made by two co-workers, Reva Schneider and Althea Fikso, and were
handled*fn1 by Pactiv's human resources personnel, none of whom were
implicated in the EEOC complaint. The counseling e-mail was sent by
Wenxiu Zhang who also was not implicated in Baker's EEOC complaint. Accordingly, I find that these
claims are barred because they are not contained in or reasonably related
to Baker's EEOC complaint.
Third, Pactiv argues that Baker's claims of discrimination and
retaliation fail because he cannot establish a prima facie case of
discrimination and/or retaliation. In the absence of direct evidence of
race discrimination and/or retaliation,*fn2 the plaintiff must establish
a prima facie case for discrimination and/or retaliation. McDonnell
Douglas Corp, v. Green, 411 U.S. 792 (1973). To establish a prima facie
case for discrimination, the plaintiff must show that he is a member of a
protected class, he suffered an adverse employment action, he was
performing his job satisfactorily, and similarly situated employees who
were not members of the protected class were treated more favorably. Id.
Similarly, to establish a prima facie case for retaliation, the plaintiff
must show that he engaged in a protected activity, he suffered an adverse
employment action, and a causal connection existed between the adverse
employment action and the protected activity. Smart v. Ball State Univ.,
89 F.3d 437, 440 (7th Cir. 1996). Once the plaintiff makes out his prima facie case, the burden shifts to the defendant to present a
legitimate, non-discriminatory basis for the adverse action. Cowan v.
Glenbrook Sec. Servs., 123 F.3d 438, 445 (7th Cir. 1997); Miller v.
American Family Mut. Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000). If the
defendant is able to do so, the burden shifts back to the plaintiff to
establish that the proffered reason is merely a pretext for
discrimination and/or retaliation. Cowan, 123 F.3d at 445; Miller, 203
F.3d at 1007.
To prove his prima facie cases for employment discrimination and
retaliation Baker must show that he was subject to an adverse employment
action. McDonnell Douglas, 411 U.S. 792; Smart, 89 F.3d 437. Baker admits
that the false complaints, Pactiv's failure to discipline his two
co-workers for making the false complaints, the posting of an incorrect
schedule, and the receipt of a counseling e-mail were not, in and of
themselves, adverse employment actions. Baker argues that these instances
all contributed to his receipt of a lower than expected merit increase,
which he claims did constitute an adverse employment action.*fn3 Not
everything that makes an employee unhappy is an actionable adverse
action. Smart, 89 F.3d at 441. Only tangible employment actions that
cause a significant change in employment status constitute actionable
adverse actions. Burlington Indus, v. Ellerth, 524 U.S. 742, 753 (1998).
Examples of actionable adverse actions include hiring, firing, failing to
promote, reassigning with significantly different responsibilities, and a
decision causing a significant change in benefits. Id. The action must
cause a materially adverse change in the terms and conditions of
employment that is "more disruptive than a mere inconvenience or an alteration of job
responsibilities." Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132,
136 (7th Cir. 1993).
Baker's merit increase of 3% was lower than the 5% increase that he had
expected. This led to a difference of approximately $920.*fn4
Essentially, Baker argues that a lesser merit increase should be viewed
in the same way as a decrease in wages and should constitute a
fundamental change in the terms of his employment. However, the two are
fundamentally different. Unlike wages, merit increases are given on a
discretionary basis; they are not entitlements. Thus, a lower than
expected merit increase did not constitute an adverse employment action.
See Miller, 203 F.3d at 1006 (decision not to give employee the higher
raise she demanded was not an adverse employment action when employee was
not automatically entitled to a larger raise); Rabinovitz v. Pena,
89 F.3d 482, 488-89 (7th Cir. 1996) (lower performance rating that led to
loss of bonus was not an adverse employment action because employee was
not automatically entitled to receive a certain bonus); Speer v. Rand
McNally & Co., No. 95 C 6269, 1996 U.S. Dist. LEXIS 17071 at *21-22
(N.D. Ill Nov. 14, 1996) (lower performance rating that led to a smaller
raise than the employee expected was not a materially adverse employment
action because employee was not entitled to a specific raise).
Accordingly, I find Baker is unable to establish a prima facie case for
either employment discrimination or retaliation.
Pactiv also argues that Baker cannot establish a prima facie case for
discrimination because he cannot show that another similarly situated
employee outside the protected class was treated more favorably.
McDonnell Douglas, 411 U.S. 792. Baker claims that he alone received a poorer performance review and lower merit increase than was deserved,
false and unresponded to complaints, and a counseling e-mail. Baker
offers no evidence to support these claim other than to say he "believes"
them to be true. Baker does not identify any non-black, non-complaining,
similarly situated employees who were treated more favorably. Baker has
not identified any non-black, non-complaining employees reporting to
Danko who received a better evaluation and raise,*fn5 any instances
where Pactiv disciplined employees for making false complaints, or any
instances where an employee had not received counseling e-mails after
failing to make what the manager felt was an adequate investigation of a
project.*fn6 Therefore, I find he cannot establish a prima facie case for
discrimination.
Finally, Pactiv argues that even if Baker could establish a prima
facie case, his claims would still fail because he cannot establish that
Pactiv's actions were a pretext for discrimination or retaliation. Pactiv
has offered the following evidence of nondiscriminatory motives for the
complained of actions: Pactiv claims the less than desired review/merit
increase and the counseling e-mail were based on Baker's job
performance, the posting of an incorrect schedule was a mistake, and not
reprimanding employees for filing false complaints was standard
procedure. To establish pretext, Baker must prove, by a preponderance of
the evidence, that the legitimate reasons offered by Pactiv are merely a
false pretext for discrimination and/or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000). Other than his own personal opinion, Baker presents no evidence
showing that he deserved either a better performance review or a larger
merit increase,*fn7 that the counseling e-mail was improperly
motivated, that the posting of the incorrect schedule was improperly
motivated, or that Pactiv's failure to discipline the employees who made
false complaints against him was improperly motivated. An employee's
self-serving statements, with nothing more, are not enough to overcome a
defendant's legitimate explanation for the alleged action. Hall v. Gary
Cmty. Sch. Corp., 298 F.3d 672 (7th Cir. 2002). Accordingly, I find that
Baker cannot establish that Pactiv's proffered motivations were
pretextual.
For the reasons set forth in this opinion, Defendant's Motion ...