United States District Court, N.D. Illinois, Eastern Division
July 13, 2004.
WILLIE MORRIS, Plaintiff,
BILL O'BOYLE and FIRST EQUITY MORTGAGE, Defendants.
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
This matter is before the Court on defendants' motion for
summary judgment. Plaintiff Willie Morris has filed a pro se
complaint against defendants Bill O'Boyle and First Equity
Mortgage alleging both racial and gender discrimination in
violation of Title VII, 42 U.S.C. § 2000e et. seq. For the
following reasons, defendants' motion for summary judgment is
The following undisputed facts are taken from defendants' Local
Rule 56.1 Statement of Material Facts. Defendant O'Boyle is the
president of First Equity Mortgage. First Equity Mortgage first
hired Morris in April 2002 as a telemarketer. On his first
scheduled start date, Morris called O'Boyle to explain that he
would not be able to show up for work because he was in a car
accident. O'Boyle gave Morris a second start date. However,
Morris did not show up for work on the second date either.
O'Boyle contacted Morris to inquire about his absence. Morris
explained that he had been offered and accepted a job with the
Cook County Forest Preserve, and thus, he would not be working at
First Equity Mortgage. Several months later, Morris once again interviewed for a
telemarketing position at First Equity Mortgage. Although O'Boyle
was hesitant to hire Morris again, O'Boyle decided to give Morris
another chance and offered him a job. At that time, O'Boyle set
forth First Equity Mortgage's absentee and notification policies
and employment guidelines and specifically explained to Morris
that, if he violated the absentee or notification policies, he
would be discharged. First Equity Mortgage had very strict
guidelines for new employees. Among other guidelines, it is First
Equity Mortgage's policy that an employee contact the office
manager at a minimum of three hours prior to the start of his or
her shift if there is going to be problem or if the employee will
not be at work. The first month of employment at First Equity
Mortgage is considered a probationary time period for new
employees. During this time, new employees may be fired for any
violations of First Equity Mortgage's employment guidelines or
Morris began his employment with First Equity Mortgage in or
about November 2002. However, only three or four days after he
had started, Morris called into work about thirty minutes before
his shift was scheduled to begin and stated that he had a cold
and would be late for work because he had to fill a prescription.
Later that afternoon, well after Morris' shift had begun, he
called the office manger again and explained that he would not be
coming into work at all that day. O'Boyle fired Morris the next
day because: (1) Morris did not show up for work; (2) he failed
to comply with First Equity Mortgage's notification policy that
he call in at least three hours before the scheduled start time
of his shift to inform the office manager that he would be late;
and (3) he did not call back until at least four hours after his
shift began to inform the office manager that he would not be
coming into work at all. Thereafter, Morris filed the instant
lawsuit alleging racial and gender discrimination. DISCUSSION
As a threshold matter, this Court notes that Morris has not
alleged or claimed that he has filed a charge of discrimination
with the Equal Employment Opportunity Commission ("EEOC") as he
is required to do so, and defendants have not addressed this
issue in their motion. A plaintiff must file an employment
discrimination complaint within 300 days of the alleged
discriminatory behavior. 42 U.S.C. § 2000e-5(e); see also
Slovinec v. Illinois Department of Human Services, 2004 WL
1114758, at *8 (N.D. Ill. 2004). If a plaintiff fails to file a
timely complaint with the EEOC, then he will be precluded from
bringing such a claim in federal court. Koelsch v. Betone Elec.
Corp., 46 F.3d 705, 707 (7th Cir. 1995).
In opposition to defendants' motion for summary judgment,
Morris has attached copies of a Charge of Discrimination that he
claims to have submitted to the Illinois Labor Relations Board as
well as a wage claim application that he submitted to the
Illinois Department of Labor. These administrative filings are
not sufficient to satisfy his obligation to file a charge of
discrimination with the EEOC. However, Seventh Circuit authority
indicates that a plaintiff's administrative filing requirement is
not jurisdictional. Slovinec, 2004 WL 1114758, at *8, citing
Cheek v. W. & S. Life Ins., 31 F.3d 497, 499 (7th Cir. 1994).
Instead, meeting the administrative filing requirements is in the
nature of a "condition precedent" as opposed to a jurisdictional
As a procedural matter, this case should be dismissed because
there is no evidence in the record that Morris has complied with
the requirement that he, in fact, filed an EEOC complaint within
300 days of the alleged act of discrimination. Although Morris'
complaint is fatally deficient because there is no evidence
before us that he has filed a complaint with the EEOC, we nevertheless will address the merits of Morris' claim and
defendants' motion for summary judgment.
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment may
only be granted when "there is no genuine issue as to any
material fact and . . . the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56(c). We apply
this standard with particular care in employment discrimination
cases in which intent and credibility are critical. Senner v.
Northcentral Technical College, 113 F.3d 750, 757 (7th Cir.
1997). Nevertheless, "an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but . . .
must set forth specific facts showing that there is a genuine
issue for trial." FED. R. CIV. P. 56(e). A party must present
"more than a scintilla of evidence" to defeat summary judgment.
Senner, 113 F.3d at 757.
Indeed, "Rule 56 demands something more specific than the bald
assertion of the general truth of a particular matter, rather it
requires affidavits that cite specific concrete facts
establishing the existence of the truth of the matter asserted."
Hadley v. County of DuPage, 715 F.2d 1238, 1243 (7th Cir.
1983). Conclusory allegations alone will not defeat a motion for
summary judgment. Thomas v. Christ Hosp. and Medical Center,
328 F.3d 890, 893-94 (7th Cir. 2003), citing Lujan v. Nat'l
Wildlife Federation, 497 U.S. 871, 888-89 (1990). "Speculation
does not create a genuine issue of fact, instead, it creates a
false issue, the demolition of which is a primary goal of summary
judgment." Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932
(7th Cir. 1995) (emphasis added). The fact-intensive nature of
employment discrimination cases does not oblige the court to "scour the record" for factual disputes
to help a plaintiff avert summary judgment. Greer v. Bd. of Ed.
of the City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001).
Local Rule 56.1 for the Northern District of Illinois requires
that the parties support all disputed facts with specific
references to the record and further emphasizes that it is
inappropriate to include legal conclusions and/or argument in the
Rule 56.1 statements of facts. Jupiter Aluminum Corp. v. Home
Ins. Co., 225 F.3d 868, 871 (7th Cir. 2000). The Seventh Circuit
repeatedly has sustained the entry of summary judgment when the
non-movant has failed to submit a factual statement in the form
called for by the local rules and regularly upholds strict
enforcement of Rule 56.1. Midwest Imports, Ltd. v. Coval,
71 F.3d 1311, 1316 (7th Cir. 1995) (citing cases).
In this case, Morris has failed to object properly and/or
respond to nearly all of defendants' asserted, and properly
supported, facts. Defendants O'Boyle and First Equity Mortgage
filed their statement of undisputed facts with supporting
affidavits, and Morris did not file a response to a single
statement of fact asserted by defendants. Instead, Morris
included a discussion of the alleged factual background in his
memorandum of law and also filed a separate document which
purports to be a six-paragraph statement of undisputed facts but
does not have a single citation to any supporting affidavits.
Morris, however, did submit a declaration of another
individual, Mary Russell, in support of his opposition to
defendants' motion, yet he does not cite this declaration in his
statement of facts. Rule 56(e) requires that affidavits offered
in opposition to summary judgment be made on personal knowledge
and set forth such facts as would be admissible at trial.
"Although `personal knowledge' may include inferences and opinions, those inferences
must be substantiated by specific facts." Drake v. Minnesota
Mining & Manufacturing Co., 134 F.3d 878, 887 (7th Cir. 1998),
quoting Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir.
1988). In many instances, that is not the case with Russell's
declaration which contains unsupported conclusory assertions that
do not appear to be based on personal knowledge. Because Morris
has failed to comply with Local Rule 56.1, we adopt defendants'
statement of the facts in deciding the summary judgment motion.
However, it should be noted that we have reviewed and studied all
of the materials submitted by Morris, and when appropriate, we
have taken into consideration the materials he has submitted to
B. Plaintiff Can Not Maintain a Discrimination Claim against
Morris has filed a discrimination claim against both First
Equity Mortgage and its president Bill O'Boyle. However, O'Boyle
is not an employer as defined by Title VII and can not be held
individually liable. See Williams v. Banning, 72 F.3d 552, 555
(7th Cir. 1995). In Williams, the Seventh Circuit determined
that a supervisor, in his individual capacity, does not fall
within the scope of Title VII's definition of "employer." Id.
Like the plaintiff in Williams, Morris filed a discrimination
claim against his supervisor Bill O'Boyle. However, First Equity
Mortgage is Morris' employer, not O'Boyle. Thus, the motion for
summary judgment is granted as to defendant O'Boyle, and he is
dismissed from this lawsuit with prejudice. C. Plaintiff Can Not Establish a Prima Facie Case of Either
Racial or Gender Discrimination
Morris argues that First Equity Mortgage has discriminated
against him based on his race and his gender. Under the Title
VII, it is "an unlawful employment practice for an employer to
fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a)(1). A plaintiff alleging
race or gender discrimination under Title VII can prove such
discrimination either by providing direct evidence of an
employer's discriminatory intent or by showing disparate
treatment using indirect evidence and the burden-shifting method
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
Plaintiff has not produced any direct evidence of either race
or gender discrimination. Thus, we proceed under the McDonnell
Douglas framework. Under this burden-shifting method to
establish a prima facie case of race or gender discrimination,
Morris must initially demonstrate: (1) he is a member of a
protected class; (2) he is performing his job satisfactorily; (3)
an adverse employment action occurred; and (4) those outside of
the protected class were treated more favorably. Payne v.
Milwaukee County, 146 F.3d 430, 434 (7th Cir. 1998). If the
plaintiff establishes a prima facie case, then "the burden of
production shifts to the employer to articulate a legitimate,
nondiscriminatory reasons for its allegedly biased employment
decision." Johnson v. City of Fort Wayne, Ind., 91 F.3d 922,
931 (7th Cir. 1996). If the employer provides a legitimate,
non-discriminatory reason, then the plaintiff must show by a
preponderance of the evidence that the employer's stated reason
for its decision is nothing more than pretext. Id. It is not disputed that Morris is an African American male.
However, to the extent that Morris claims that First Equity
Mortgage has intentionally discriminated against him based on his
race or his gender, he has failed to provide any evidence of
discrimination or discriminatory intent. Morris has not presented
any evidence that he was performing his job satisfactorily.
Although Morris asserts that he was performing satisfactorily,
"conclusory allegations and self-serving affidavits, without
support in the record, do not create a triable issue of fact."
Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002). In
addition, Morris has not established that other employees of
First Equity Mortgage who are outside the protected class were
treated differently. Beyond his unsupported, conclusory
allegations, Morris has not presented a scintilla of evidence of
discriminatory conduct by First Equity Mortgage.
Even assuming arguendo that Morris could establish a prima
facie case of either race or gender discrimination, First Equity
Mortgage has provided a legitimate, non-discriminatory reason for
its decision to discharge Morris Morris' failure to show up for
work and to comply with First Equity Mortgage's notification
policy. As the Seventh Circuit has stated, the court will "not
sit as a super-personnel department that reexamines an entity's
business decisions." Debs v. Northeastern Ill. Univ.,
153 F.3d 390, 396 (7th Cir. 1998). Thus, First Equity Mortgage has
articulated a legitimate, non-discriminatory reasons for its
attendance and notifications policies.
In order to satisfy his burden of persuasion, Morris now must
show that the proffered reasons are pretextaul. "A pretext for
discrimination means more than an unusual act; it means something
worse than a business error; pretext means deceit used to cover
one's tracks." Grube v. Lau Indus., Inc., 257 F.3d 723, 730
(7th Cir. 2001). To demonstrate pretext, a plaintiff must show
that each of the defendant's articulated reasons for its
employment decision either: "(1) had no basis in fact; (2) did not actually motive [the
employment decision]; (3) was insufficient to motivate [the
employment decision]." Wells v. Unisource Worldwide, Inc.,
289 F.3d 1001, 1006 (7th Cir. 2002). There is nothing in the record
showing that First Equity Mortgage is lying about its proffered
explanation, and Morris has not introduced a scintilla of
evidence demonstrating that First Equity Mortgage promulgated its
policies with an intent to discriminate against its employees,
including specifically Morris himself, based either on their race
In sum, Morris has failed to establish a prima facie case of
both race and gender discrimination and cannot demonstrate that
First Equity Mortgage's proffered reasons for its attendance and
notification policies are a pretext for any discriminatory
intent. Thus, we find that there are no issues of material fact,
and First Equity Mortgage is entitled to judgment as a matter of
For all of the foregoing reasons, defendants First Equity
Mortgage and Bill O'Boyle's motion for summary judgment is
granted, terminating the case. This is a final and appealable
It is so ordered.
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