United States District Court, N.D. Illinois, Eastern Division
July 22, 2004.
PATRICIA A. JONES, Plaintiff,
I.L.A. LOCAL 1803, Defendant.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant International
Longshoremen's Association Local 1803's ("ILA") motion for
summary judgment. For the reasons stated below, we grant the
motion for summary judgment in its entirety.
ILA supplies Checkers based on work orders that its
Secretary-Treasurer, Bror Johnson ("Johnson") receives from
stevedoring companies in the Port of Chicago. Presently, work in
the port has slowed significantly compared to prior years. For
the past few years there have only been two stevedoring companies
that have had collective bargaining agreement with ILA. As a
consequence, work opportunities for longshoremen have been
significantly reduced, and work has been sporadic. Members of ILA function as "Checkers." They keep a record of
cargo being unloaded or loaded. Sometimes "Extras" are needed
when the supply of regular Checkers with seniority who can work
the next day is exhausted. The system of supplying Checkers has
been in place for decades. Johnson, who has been
Secretary-Treasurer for 21 years, must phone Checkers or Extras
when a stevedoring company's work order is received. Because of
the need to promptly fulfill the work order to supply Checkers
for the next day, Johnson can not leave messages or wait for a
return call that may never materialize. If a Checker or Extra
does not answer the phone and Johnson cannot speak with the
individual, he calls the next person.
In late 2000 and early 2001, Johnson lost contact with
Plaintiff Patricia Jones ("Jones"). He could never reach Jones by
phone, and she never called him. Therefore Johnson stopped
calling Jones as an Extra. Moreover, during this same period,
Jones did not appear for the hiring shapes at her home local ILA
19. Thus, Johnson concluded that Jones was no longer interested
in working on the docks.
As a result, Jones filed a compliant against ILA alleging that
her failure to receive further phone calls from Johnson to work
as an Extra on the docks was due to discrimination based on sex,
race, retaliation for opposing unlawful employment practices and
for seeking to join ILA as a member, and disability. However,
Jones has now withdrawn her claims of disability discrimination
and retaliation based on alleged refusal of ILA to permit her to
join as a member. Therefore, all that remains at issue is Jones'
claim that she was discriminated against based on her sex and her race.
Summary judgment is appropriate when the record, viewed in the
light most favorable to the nonmoving party, reveals that there
is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). In seeking a grant of summary judgment the moving party
must identify "those portions of `the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). This initial burden may be satisfied by presenting
specific evidence on a particular issue or by pointing out "an
absence of evidence to support the non-moving party's case."
Id. at 325. Once the movant has met this burden, the non-moving
party cannot simply rest on the allegations in the pleadings,
but, "by affidavits or as otherwise provided for in [Rule 56],
must set forth specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the
context of a motion for summary judgment is not simply a
"metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986).
Rather, a genuine issue of material fact exists when "the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip
Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must
consider the record as a whole, in a light most favorable to the
non-moving party, and draw all reasonable inferences that favor
the non-moving party. Anderson, 477 U.S. at 255; Bay v.
Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
I. Failure By Jones To Respond
We note that Jones has not responded to the arguments presented
by ILA in regards to the summary judgment motion or to ILA's
Local Rule 56.1 statement of facts, thereby admitting the
veracity of ILA's stated facts. On September 25, 2003, we gave
the parties until January 12, 2004, to respond to dispositive
motions that were filed by December 30, 2003. Jones failed to
respond to ILA's summary judgment motion by January 12, 2004.
Jones filed a motion seeking an extension of time to file an
answer, but neither Jones nor her counsel appeared in court for
her noticed motion and we denied the motion. On February 10,
2004, Jones filed a brief indicating that she would not be filing
a response to the summary judgment motion.
II. Whether Claim is Untimely
ILA first argues that Jones' charge of discrimination was
untimely. We agree. A Title VII plaintiff seeking to bring a claim in Illinois "must
file a charge with the EEOC within 300 days of the alleged
discrimination." Bilow v. Much Shelist Freed Denenberg Ament &
Rubenstein, P.C., 277 F.3d 882, 892 (7th Cir. 2001). Jones
alleges that the discrimination against her began in May of 2000,
yet Jones admits that her charge with the Illinois Department of
Human Rights ("IDHR") was not filed until September 5, 2001.
Clearly the filing of this charge was untimely. Jones has failed
to offer any reason as to why the limitations period should have
III. Failure to Exhaust Claims
ILA argues that Jones failed to exhaust administrative
proceedings, and as a result ILA was deprived of its statutory
right to mediate and conciliate. We agree. Exhaustion of
administrative remedies and participation in the Agency's
conciliation and mediation proceedings is a prerequisite to a
federal court jurisdiction over employment discrimination actions
arising under Title VII of the Civil Rights Act. Burton v. Great
Western Steel Co., 833 F. Supp. 1266, 1270 (N.D. Ill. 1993). An
EEOC charge is insufficient to confer jurisdiction in a private
civil action when the charged party has not been given an
opportunity to participate in conciliation proceedings aimed at
voluntary compliance. Eggleston v. Chicago Journeymen Plumbers'
Local 130, 657 F.2d 890, 905 (7th Cir. 1981). Furthermore,
sufficient opportunity to conciliate is required because "conciliation
between the parties may solve discriminatory problems without the
animosities created by coercion, and it provides the respondent
with the chance to voluntarily explain and justify past conduct
prior to the expense, publicity, and time consumption associated
with litigation. Id. at 906-07.
Jones admits that she failed to participate in the Agency
proceedings below. (SF 12-18). She admits that she evaded and
avoided the statutory scheme of agency investigation by the EEOC
that Congress directed. The EEOC "right-to-sue" letter adopted
the findings of the IDHR. In turn the IDHR explicitly dismissed
Jones' charge because of her non-cooperation, sending her a
"Notice of Dismissal for Failure to Proceed." (SF 18). Finally,
Jones never filed a "Request for Review" of the IDHR's dismissal
of her charge for failure to adequately respond to reasonable
requests of the IDHR. Where a claimant initiates an
administrative process and then "affirmatively frustrates the
agency's efforts to investigate the charge, thus triggering a
dismissal of the charge for failure to cooperate, sound policy
calls for the denial of the claimant's later effort to file suit
in federal court." Morris v. Albertson, Inc., 2001 WL 936118,
at *3 (N.D. Ill. 2001). ILA was prejudiced because of Jones'
refusal to cooperate with IDHR's processes and because it never
had an opportunity to learn the basis for Jones' charges. Jones'
excuse for failing to attend the fact-finding conference and
otherwise failing to cooperate with IDHR's investigation was
based on her alleged mental handicap-disability. However, at her
deposition, Jones expressly withdrew any claim based on disability. (SF 9).
Therefore, Jones admits that she failed to exhaust her
III. Merits of Claim
Finally, we note that even if Jones had filed her claim in a
timely fashion, and had exhausted her administrative remedies she
would not succeed in defeating ILA's motion for summary judgment.
If an employer in a Title VII discrimination case brings a
motion for summary judgment, the plaintiff can proceed under the
direct or indirect method of proof in order to defeat the motion.
Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998). Under the
direct approach, the plaintiff can show through direct or
circumstantial evidence that the alleged harmful action of the
employer was "motivated by an impermissible purpose, such as her
race or national origin." Id. Under the indirect approach the
plaintiff must establish a prima facie case which will allow an
inference of discrimination. Id. To establish a prima facie
case of race or gender discrimination a plaintiff must show: "(1)
that she was a member of a protected class; (2) that she was
performing her job satisfactorily; (3) that she experienced an
adverse employment action; and (4) that similarly situated
individuals were treated more favorably." Traylor v. Brown,
295 F.3d 783, 788 (7th Cir. 2002). If a prima facie case is
established, then there is a rebuttable presumption of
discrimination and the employer is required to offer a
"legitimate, non-discriminatory reason for the adverse employment action." Cianci v. Pettibone Corp.,
152 F.3d 723, 726 (7th Cir. 1998). If the employer provides such a reason,
the plaintiff must then show that the reason alleged by the
employer is merely a pretext for discrimination. Id.
As indicated above, all of ILA's Local Rule 56.1 facts are
deemed admitted because Jones did not respond to the facts. The
facts in this case show that ILA did not refuse to offer Patricia
Jones the opportunity to work as a Checker. On the contrary, she
was called by Johnson to work as an extra seven to ten times in
1999 and 35 times in 2000. (SF 50, 51). Such conduct by Johnson
is inconsistent with Jones' allegations of discrimination.
Jones has also failed to even show that other similarly
situated employees were treated more favorably and, since the
evidence shows that Jones failed to answer her phone, (SF 53),
Jones fails to show that she suffered an adverse employment
action. Also, even if Jones could establish a prima facie case of
discrimination, ILA has established a legitimate,
non-discriminatory reason why Johnson stopped calling her in
early 2001 to work as an extra. ILA claims and Jones admits that
Jones did not answer her phone and she never called Johnson to
inquire about work. Finally, the record is devoid of any
indications that ILA's given reason is a pretext. CONCLUSION
Based on the foregoing analysis, we grant ILA's motion for
summary judgment in its entirety.
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