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")
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
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