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June 13, 2005.

SCHOOL DISTRICT U-46 AND HANAN JAVETZ, individually and in his official capacity, Defendants.

The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge


This matter is before the court on Defendant School District U-46's ("District") and Defendant Hanan Javetz's ("Javetz") motion for summary judgment. For the reasons stated below, we grant Defendants' motion for summary judgment in its entirety.


  The District is made up of fifty-three schools in the state of Illinois, including Oakhill Elementary School ("Oakhill"). Plaintiff Linh Thanongsinh ("Thanongsinh"), who refers to himself as "an Asian-American male of Chinese and Laotian descent," (A. Compl. Par. 10), began working for the District in October of 1991. Thanongsinh contends that he was awarded a Group V Head Custodian position ("Group V position") at Oakhill in 1996, although the District claims that he did not achieve the Group V position status until 2002.

  In 2002, the District and Education Support Services Organization ("Union"), the union that represented Thanongsinh, began contract negotiations. During the negotiations the District and the Union agreed to phase out the Group V positions at the District's elementary schools through a certification process and through natural attrition.

  The final collective bargaining agreement in 1992 ("CBA"), negotiated by the District and the union, contained the procedure for conducting the certification for Group V positions. Under the procedure, a participant was first given a written test and was required to score at least a fifty. If the participant scored at least a fifty on the written test, the participant could proceed onward and take the "hands-on" portion of the certification process and the participant would receive another score for that test. In order for a participant to be certified, the average of the two test scores of the participant had to be at least seventy. If a participant did not achieve certification on the first try, the participant could begin anew and start the certification process again.

  Thanongsinh took the written test for certification on November 8, 2002, and he received a score of 55. Thanongsinh then took the "hands-on" test on March 14, 2003, which was administered by Ron Dugo and Defendant Javetz. Thanongsinh received a score of 66.62 for the "hands-on" test, and since his average score was 60.81, which was below 70, he did not receive certification as required under the CBA. Thanongsinh claims that Javetz purposely gave Thanongsinh a low score because of Thanongsinh's race, so that Thanongsinh would fail the certification process.

  On May 3, 2003, Thanongsinh began the certification process again. He scored a 46 on the written test, and, as required by the CBA, he could not proceed to the "hands-on" test because the score was below 50. On June 24, 2003, the District informed Thanongsinh that since he had failed to achieve certification, his job was declassified to a Category 2 Custodian as of July 1, 2003. On September 26, 2003, Thanongsinh began the certification process for the third time and scored a 35.91 on the written test which once again, under the CBA procedures, disqualified him for the "hands-on" test.

  In the instant action Thanongsinh has filed an amended complaint which alleges violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Count I), and violations of 42 U.S.C. § 1981 ("Section 1981") (Count II).


  Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving 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). DISCUSSION

  I. Title VII Claims

  Defendants move for summary judgment on the Title VII claim. If an employer in a Title VII discrimination case brings a motion for summary judgment, the plaintiff can proceed under the direct or indirect approach 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 [his] race or national origin." Id.

  In regards to a Title VII claim which is based upon a failure to promote, for a prima facie case a plaintiff must establish that he was: "(1) a member of a protected class; (2) qualified for the position sought; (3) rejected for the position; and (4) treated less favorably than a similarly situated candidate outside h[is] protected class." Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004).

  If a prima facie case is established, 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. Thanongsinh does not have sufficient evidence to proceed under the direct approach and will need to proceed under the indirect approach. See Jordan v. City of Gary, 396 F.3d 825, 832 (7th Cir. 2005) (stating that "[t]o prove discrimination via direct evidence "essentially requires an admission by the decision-maker that his actions were based on the prohibited animus . . . [and that] [i]t should not be surprising ...

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