United States District Court, N.D. Illinois, Eastern Division
August 17, 2005.
FREEMAN D. BANKS Plaintiff,
ARCHER/AMERICAN WIRE, Defendant.
The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Freeman Banks, an African-American man who is
proceeding pro se, sued his current employer, Archer Wire
International, Inc. ("Archer Wire"), for race discrimination,
retaliation, and racial harassment under Title VII of the Civil
Rights Act of 1964 and 42 U.S.C. § 1981. The parties consented to
the jurisdiction of the United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). Archer Wire moves for summary judgment.
For the reasons that follow, the Court grants Archer Wire's
summary judgment motion.
A. Northern District of Illinois Local Rule 56.1
Archer Wire objects to Banks' Response to Defendant's Statement
of Undisputed Material Facts in its entirety on the grounds that
it fails to comply with Local Rule 56.1. Local Rule 56.1 governs
motions for summary judgment in this district. Banks is required
to comply with Local Rule 56.1 despite his pro se status.
Greer v. Bd. of Educ. of the City of Chicago, Illinois,
267 F.3d 723, 727 (7th Cir. 2001). Moreover, this Court is not
required to search the record for a dispute of fact on behalf of
a pro se party. Id. (stating "[e]mployment discrimination
cases are extremely fact-intensive, and neither appellate courts
nor district courts are `obligated in our adversary system to
scour the record looking for factual disputes.'"). Local Rule 56.1(a)(3) requires the moving party to provide "a
statement of material facts as to which the moving party contends
there is no genuine issue." Local Rule 56.1(b)(3)(A) requires the
non-moving party to respond to "each numbered paragraph in the
moving party's statement, including, in the case of any
disagreement, specific references to the affidavits, parts of the
record, and other supporting materials relied upon." The
non-moving party is required "to admit or deny each factual
statement proffered by the defendant and to designate with
specificity and particularity those material facts believed to
establish a genuine dispute for trial." Greer, 267 F.3d at 727.
"All material facts set forth in the statement required of the
moving party will be deemed to be admitted unless controverted by
the statement of the opposing party." L.R. 56.1(b)(3)(B). If the
non-moving party wishes to present additional facts requiring the
denial of summary judgment, it must do so in "a statement,
consisting of short numbered paragraphs" supported by citations
to the record. L.R. 56.1(b)(3)(B).
Because Banks is a pro se litigant, Archer Wire served him
with a "Notice to Pro Se Litigant Opposing Motion for Summary
Judgment" as required by Local Rule 56.2 (the "Notice"). The
Notice explained the purpose of summary judgment, Banks'
obligations to respond to Archer Wire's motion, and the
consequences of not doing so. Banks was also advised that he must
comply with Local Rule 56.1 and provide a paragraph-by-paragraph
response to Archer Wire's statement of facts. Despite receiving
the Notice, Banks failed to comply with the requirements of Local
Rule 56.1 in several critical respects. Along with its summary
judgment motion, Archer Wire submitted 195 statements of facts.
Banks failed to properly identify which facts he disputes. Banks'
Response does not specifically admit or deny each of Archer
Wire's statements of facts. Instead, Bank appears to have
repeated Archer Wire's facts verbatim where there is no
disagreement and, where Bank disagreed, redrafted the particular statement of fact to reflect
his version and/or improperly added new facts. Banks' new facts
belong in a separate statement of additional facts pursuant to
Local Rule 56.1(b)(3)(B). Banks also fails to cite to admissible
evidence supporting his denials and additional facts. As a
result, all of Archer Wire's facts that are supported by the
record are deemed admitted. See L.R. 56.1(b)(3)(B); Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (stating "a mere
disagreement with the movant's asserted facts is inadequate if
made without reference to specific supporting material.");
McGuire v. United Parcel Service, 152 F.3d 673, 675 (7th Cir.
1998) (stating "[a]n answer that does not deny the allegations in
the numbered paragraph with citations to supporting evidence in
the record constitutes an admission."). The Court also disregards
additional facts in Banks' Response because they were not
included in a separate statement and did not include a specific
reference to affidavits, or other supporting parts of the record.
See L.R. 56.1(b)(3)(B).
Because Banks' Response is entirely non-compliant, the Court
further disregards Banks' affidavit evidence and limits its
analysis to the facts contained in Defendant's Statement of
Undisputed Material Facts. Bordelon v. Chicago School Reform
Board of Trustees, 233 F.3d 524, 529 (7th Cir. 2000)
(holding district court properly refused to consider non-moving
party's affidavits where non-moving party's response to moving
party's statement of facts was "entirely non-compliant" with
summary judgment local rule). Local Rule 56.1(b)(3)(B) makes
clear "the consequence for noncompliance the movant's
assertions of material fact are deemed admitted and this
consequence applies regardless of what contrary evidence is in
the record." Id; see also Koszola v. Bd. of Educ. of the
City of Chicago, 385 F.3d 1104, 1107-09 (7th Cir. 2004).
Banks' failure to comply with Local Rule 56.1 does not result
in the automatic grant of summary judgment. The Court must still
determine whether Archer Wire is entitled to judgment as a matter of law, viewing the facts in the light most favorable to
Banks. Johnson v. Gudmundson, 35 F.3d 1104, 1112 (7th Cir.
1994) (stating "even where many or all of the material facts are
undisputed, the court still must ascertain that judgment is
proper `as a matter of governing law.'").
B. Relevant Undisputed Facts*fn1
1. Banks' Employment
Banks was employed by Chicago Wirecraft Products, Inc.
("Wirecraft"), a wire fabrication business, from the late 1990s
to July, 2002. DSUF 22. On or about July 15, 2002, Archer Wire
purchased Wirecraft. DSUF 10. Archer Wire provides a diversified
range of wire products, including barbeque grill grates, wire
baskets for making French fries, and welded wire for sporting
equipment, such as face guards for helmets. DSUF 4, 5. Archer
Wire hired Banks on or about July 15, 2002, as a machine
operator. DSUF 24. Banks is currently working for Archer Wire.
DSUF 25. Throughout his employment with Archer Wire, Banks has
worked as a machine operator mainly in the department that makes
products for a large sporting equipment company. DSUF 26.
2. Set-Up Employee versus Machine Operator
In addition to other employees involved in manufacturing
operations, Archer Wire has "set-up" employees and machine
operators. A set-up employee prepares a machine to product a
product, or a component of a product, in accordance with the
product drawings, production plan, and the customer's
specifications. DSUF 14. A machine operator assists the foreman
or set-up employee in operating the machines, supplying the
correct components or parts to the machine, and ensuring the
parts being manufactured conform to the "first-piece" approved
part. DSUF 15. The set-up position requires greater technical
ability, knowledge, and training than the machine operator position. DSUF 16. To move from a machine operator position to a
set-up position, an employee must train on how to read the
production plans, make the necessary calculations to set the
controls, and perform other safety and quality assurance
procedures. DSUF 17. Different machines involve different set up
procedures and therefore require separate and different training.
DSUF 18. In preparation for future possible need, Archer Wire
trains employees to learn the set-up procedures even though there
may not be a set-up position available. DSUF 21. Archer Wire does
not have a separate "trainee" job classification or pay
classification for employees that are training for a set-up
position. DSUF 19. Trainees do not receive additional pay unless
and until they are placed into a set-up position, if one becomes
available. DSUF 20.
3. Spiral Machine Set-Up Position
In July 2002, Archer Wire hired former Wirecraft employee
Michael Holmes, an African-American male, as a set-up employee on
the spiral and "ring roller" machines. DSUF 28. Holmes is the
only employee ever employed by Archer Wire who has set up spiral
machines for Archer Wire. DSUF 29. Since July 2002, Archer Wire
has not trained any employees to set up the spiral machines. DSUF
32. Since July 2002, Archer Wire has never had an open position
for a set-up employee on the spiral machine. DSUF 33.
In February 2003, Banks told Conrad Martinez, Archer Wire's
Production Manager, that he wanted to be the second shift set-up
employee on the spiral machine claiming that he was already
trained for the position. DSUF 8, 34. Martinez told Banks that
there was not enough demand to support a set-up position on the
spiral machine for the second shift. DSUF 35. Banks believed that
there were not enough orders to support a set-up position on the
second shift for the spiral machine. DSUF 36. No one at Archer
Wire told Banks, or even hinted, that he would not be placed in
the spiral machine set-up position because he is African-American.
Banks claims that Archer Wire trained Hong Cong Nguyen to set
up the spiral machine for two to three weeks. DSUF 47. Nguyen
operated the spiral machine during the second shift on a few
occasions, but he did not set up the machine. DSUF 50. Nguyen was
never trained to set up the spiral machine at Archer Wire and was
never placed into the set-up position on the spiral machine at
Archer Wire. DSUF 48, 49.
4. Press Welder Set-Up Position
Anastacio Arceo was the set-up employee on the press welder at
Wirecraft. DSUF 51. In July 2002, Archer Wire hired Arceo as the
second shift set-up employee on the press welder in the metal
face guard department. DSUF 52. In March 2003, Martinez offered
to train Banks on how to set up the press welder in the metal
face guard department, and Banks agreed. DSUF 53. Arceo trained
Banks on how to set up the press welder machine for at least four
months. DSUF 57, 59. Granados helped train Banks on how to set up
the press welder machine. DSUF 62. Banks was trained on how to
set up the press welder in the metal face guard department in
case a position became available. DSUF 56.
Banks believes that Alejandro Sagal took his place on the press
welder machine. DSUF 85. Segal assisted Arceo on the operation of
the press welder in the metal face guard department for less than
one month in late 2003 or early 2004. DSUF 86. Segal was never
trained on how to set up the press welder machine, nor did Segal
become a set-up employee on the press welder machine. DSUF 87. At
no time since Banks began training on the press welder at Archer
Wire has there been an open set-up position on the press welder
in the metal face guard department. DSUF 54. Archer Wire has not
placed any employee in the set-up position on the press welder in
the metal face guard department since Banks began training to set up the press welder.
5. Transfer to First Shift
In or around November 2003, Archer Wire received a large number
of orders for metal face guards. DSUF 72. Archer Wire moved
approximately seven employees, including Banks, from the second
shift to the first shift to have employees with experience in the
metal face guard department on the first shift to accommodate the
new orders. DSUF 73. Banks prefers to work the second shift. DSUF
78. Martinez told Banks that Banks was being moved to the first
shift because Archer Wire needed more people on the first shift.
DSUF 74. Banks does not believe that he was placed on the first
shift because of his race or color. DSUF 76.
In November 2003, Banks complained to his union because he
believed that non-African American employees with less seniority
than him stayed on the second shift. DSUF 79; Pl's Dep. at
110.*fn2 The union and Archer Wire held a grievance meeting
concerning Banks' complaint. DSUF 80. As a result of the
grievance meeting, Archer Wire agreed to move Banks back to the
second shift. DSUF 81. Banks was on the first shift for no more
than a week. DSUF 82. Banks did not receive less in pay or
benefits while working on the first shift. DSUF 83. After Banks
returned to the second shift, he did not ask to be put in any
other set-up position or to be trained for any other set-up
position. DSUF 84. 6. Written Warnings
In 2004, Banks received three written "employee warning
reports." On January 20, 2004, Banks received a written warning
from Crisantos Granados for failing to meet the standard number
of pieces per hour. DSUF 109. On May 4, 2005, Banks received
another written warning for failing to meet the production
standard and for producing bad parts. DSUF 112. On September 24,
2004, Banks received a written warning for excessive unexcused
absences, which resulted in a two-day suspension for his third
warning in one year, pursuant to Archer Wire's work rules. DSUF
123, 125, 128. Banks admits that he engaged in the conduct for
which he received each written warning. DSUF 111, 113, 124. Many
non-African American employees who never filed a charge of
discrimination received written warnings for the same conduct
from the same management team during the same time period. DSUF
7. Alleged Harassment
Banks claims that Martinez, Granados (the second shift
Production Manager), and Arceo began harassing him after he filed
the union grievance in November 2003. DSUF 88, 93. The alleged
harassment also began after Banks' training on the press welder
machine ended. DSUF 94. No one at Archer Wire has made any
comments to Banks regarding his race or his color. DSUF 89. Prior
to the time Banks filed a union grievance in November 2003, Banks
did not have any problems with Martinez. DSUF 95. Banks testified
that "Martinez hasn't really been harassing [him]." DSUF 96.
Banks claims that there were "a couple of small incidents" where
Martinez timed his performance after Banks filed the union
grievance. DSUF 97. Other than the timing incidents, Banks does
not claim that there was any other alleged harassment by
Martinez. DSUF 98. Martinez times the performance of many
employees, including Banks, in order to develop the proper
standard rates Archer Wire should expect from production machines and
employees. DSUF 99.
Banks claims that Arceo discriminated against him by closely
scrutinizing Banks' work. DSUF 101. Banks claimed that Arceo
would do "little simple things" to harass him, such as not
allowing Banks to sit down or use a radio. DSUF 102. Arceo never
made any statements about Banks that referred to Banks' race or
color. DSUF 91. Banks claims that Granados harassed him in the
same manner as Arceo, but on a less frequent basis. DSUF 103.
Banks also claims that Granados harassed him by giving him "bogus
write-up" and closely scrutinized Banks' work. DSUF. 104. Banks
further claims that Granados retaliated against him for filing
the instant lawsuit against Archer Wire. DSUF 105.
Federal Rule of Civil Procedure 56 mandates the entry of
summary judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that 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). A genuine issue of
material fact exists for trial when, in viewing the record and
all reasonable inferences drawn from it in a light most favorable
to the non-moving party, a reasonable jury could return a verdict
for the non-movant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). "A party opposing a properly supported motion
for summary judgment may not rest upon mere allegation or denials
of his pleading, but must set forth specific facts showing there
is a genuine issue for trial." Id. at 256.
Banks alleges that Archer Wire discriminated against him in
violation of Title VII and 42 U.S.C. § 1981. Banks claims that he
was demoted from a set-up position, denied a promotion to two set-up positions, transferred to first shift, and given three
written warnings because of his race.*fn3 Banks also alleges
that he was subjected to a racially hostile work environment and
retaliated against for complaining about discrimination.
Title VII prohibits workplace discrimination "with respect to
[the employee's] 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).
Section 1981 provides that "[a]ll persons . . . shall have the
same right . . . to make and enforce contracts, . . . as is
enjoyed by white citizens. . . ." 42 U.S.C. 1981(a). An employer
may not retaliate against an employee who has complained about
discrimination. 42 U.S.C. § 2000e-3(a). An employee may also
establish a violation of either statute by proving that he was
subjected to a hostile work environment. Hrobowski v.
Worthington, 358 F.3d 473, 476 (7th Cir. 2004). Claims
brought under § 1981 are analyzed under the same framework as
claims brought under Title VII. Williams v. Waste Management of
Ill., Inc., 361 F.3d 1021, 1028 (7th Cir. 2004). The Court
addresses each of Banks' claims in turn.
A. Scope of the Charge
Archer Wire first argues that any allegation that Banks
received employee warning reports in January, May, and September
2004 because of his race or in retaliation for filing a charge is
beyond the scope of his EEOC complaint and should not be
considered by the Court. "[A] Title VII plaintiff may bring only
those claims that were included in her EEOC charge, or that are
like or reasonably related to the allegations of the charge and
growing out of such allegations." Haugerud v. Amery Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001).
"[T]he EEOC charge and the complaint must, at a minimum, describe
the same conduct and implicate the same individuals." Id.
"Nevertheless, because most EEOC charges are completed by
laypersons rather than by lawyers, a Title VII plaintiff need not
allege in an EEOC charge each and every fact that combines to
form the basis of each claim in her complaint." Cheek v. Western
and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
Because they post-date his January 16, 2004 EEOC charge, Banks
did not allege in his charge that the warnings were based on his
race or were retaliatory. The allegations regarding the written
warnings may thus be considered only if they are reasonably
related to the charge filed. In his deposition, Banks testified
that he believed Granados gave him "bogus" written warnings in
retaliation for filing this lawsuit and as part of the alleged
racial harassment. Banks' Dep. at 138. Banks' current allegations
regarding the written warnings involve a similar time period,
similar persons and similar conduct as that asserted in his EEOC
charge. First, the allegations contained in the charge and the
allegations regarding the written warnings involve the same time
period. The charge states that the discrimination took place
beginning on July 1, 2003 and the latest date of discrimination
occurred on January 16, 2004, the date the charge was filed.
Banks also indicated that the discrimination was "continuing."
The written warnings occurred shortly thereafter in January, May,
and September 2004.
Second, there is a factual relationship between Banks'
allegations regarding the warnings and the allegations in the
charge. In his charge, Banks complained, among other things, that
after he filed a grievance alleging race discrimination in
November 2003, his work product was more closely scrutinized.
Banks also contended that Black employees were "more closely
monitored throughout the shift than non-Blacks." The alleged close scrutiny and
monitoring of Bank's work product may be related to two of the
written warnings. The January 2004 warning concerned Banks'
failure to make the standard number of pieces per hour. DSUF 109.
The May 2004 warning involved Banks' failure to properly trim 65
pieces and failure to meet the standard rate per hour. DSUF 112.
It can reasonably be argued that the "over-scrutiny" of Banks'
work may have resulted in these two written warnings. The Court
finds that Banks' current allegations regarding the warnings are
reasonably connected to the allegation of over-scrutinizing his
work, which was raised in his charge.
Banks received the September 2004 warning for missing nine (9)
days of work over a three-month period. DSUF 123. Although the
charge makes no mention of conduct related to the September 2004
warning, that event occurred shortly after the first two written
warnings and was issued by same person who issued the first two
warnings, Granados. One would therefore reasonably expect Banks'
claims regarding the September 2004 to be discovered during the
course of an EEOC investigation into the allegations in the
charge. Cheeks, 31 F.3d at 500.
Third, the allegations in the charge and the allegations
regarding the written warnings implicate the same person.
Granados issued the three written warnings. DSUF 109, 112, 123.
Banks claims that Granados as well as Martinez and Arceo racially
harassed him and retaliated against him. DSUF 88, 93, 101, 103,
104, 105.*fn4 For these reasons, the Court concludes that
there is a reasonable relationship between the allegations in the
charge and Banks' claims of race discrimination and retaliation
regarding the written warnings. B. Race Discrimination
1. Demotion Claim
Archer Wire claims that Banks' demotion claim is time-barred
because it occurred more than 300 days before the charge was
brought. "Title VII provides that a charge of racially
discriminatory employment practices shall be filed with the EEOC
within 300 days `after the alleged unlawful employment practice
occurred.'" Beamon v. Marshall & Ilsley Trust Co.,
411 F.3d 854, 860 (7th Cir. 2005). "Failure to file a timely charge
with the EEOC precludes a subsequent lawsuit under Title VII."
Id. Banks filed his EEOC charge on January 16, 2004. Banks'
claims have to be based on conduct that occurred after March 22,
2003. Banks claims that he was removed from a spiral machine
set-up position in October of 2002. See Pl's Charge of
Discrimination. Banks' demotion claim is time-barred.
Even if the demotion claim was not time-barred, Banks can not
succeed on the merits. A Title VII plaintiff can prove
discrimination using either the direct method or indirect method
set forth by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). "[D]irect evidence `essentially
requires an admission by the decision-maker that his actions were
based on the prohibited animus.'" Rhodes v. Ill. Dep't of
Transp., 359 F.3d 498, 504 (7th Cir. 2004). "A plaintiff can
also prevail under the direct method of proof by constructing a
`convincing mosaic' of circumstantial evidence that `allows a
jury to infer intentional discrimination by the decisionmaker.'"
Id. (quoting Troupe v. May Dept. Stores Co., 20 F.3d 734,
737 (7th Cir. 1994)).
Banks claims that in October 2002, he was demoted from his
position as spiral machine set-up employee to a production worker
because of his race. Banks has no direct evidence of
discrimination. He admits that no Archer Wire employee ever made
comments to him about his race or color. DSUF 89, 90. Banks further admitted in his deposition
that he suffered no discrimination prior to early 2003. Pl's Dep.
at 134. It is also undisputed that there were not enough orders
to support a second shift spiral machine set-up employee in
October and November 2002. Pl's Dep. at 85-86. Banks admits that
no one told him, or even hinted, that he would not be placed in
the spiral machine set-up position because he is
African-American. DSUF 44. After Banks started working at Archer
Wire, no one told Banks that he would be working as a set-up
employee on the spiral machine. DSUF 45. Banks testified that
Martinez told him in early 2003 that Banks was not being placed
in the set-up position for the spiral machine because "we just
don't like you." DSUF 42. Martinez denies making such a
statement, but even if he did, such a statement is racially
neutral on its face and does not raise an inference of
discrimination. DSUF 42.
Because there is no direct evidence of race discrimination, the
Court analyzes Banks' demotion allegation under the indirect
method of proof. To establish a claim of discrimination in the
context of a demotion, Banks must show four elements: (1) he was
a member of a protected class; (2) he was meeting his employer's
legitimate job expectations; (3) he suffered an adverse
employment action; and (4) similarly situated employees not in
the protected class were treated more favorably. Simmons v.
Chicago Bd. of Ed., 289 F.3d 488, 492 (7th Cir. 2002). If he
meets this burden, Archer Wire must provide a legitimate,
nondiscriminatory reason for his demotion. Id. The burden then
returns to Banks to present evidence that the reasons offered by
Archer Wire are a pretext for discrimination. Id.
Under this claim, Banks must show that Archer Wire demoted him.
Banks cannot satisfy the third element of the prima facie case
because the undisputed facts establish that he did not suffer a
demotion. Banks argues that Archer Wire discriminated against him
because of his race by demoting him from set-up employee to production worker in October 2002.
Archer Wire hired Banks on or about July, 2002 as a machine
operator. DSUF 24. Throughout his employment with Archer Wire,
Banks has worked as a machine operator. DSUF 26. Since July 2002,
Archer Wire has never had an open position for a set-up employee
on the spiral machine. DSUF 33. Because Banks has failed to
establish a required element of his prima facie case of race
discrimination, further analysis under McDonnell Douglas is
unnecessary. Pasqua v. Metropolitan Life Ins. Co.,
101 F.3d 514, 519 (7th Cir. 1996).*fn5
2. Failure to Promote Claim
Banks' failure to promote claim fares no better. Banks appears
to contend that he was not promoted to a set-up position on the
spiral machine or the press welder machine because of his race.
Archer Wire argues that Banks' failure to promote to the spiral
machine set-up position claim is time-barred. Banks filed his
charge on January 16, 2004, which means that any claim arising
more than 300 days prior, or before March 23, 2003, is
time-barred. Banks has admitted that the alleged failure to
promote to the spiral machine set-up position occurred in
February 2003. See Banks' Response to DSUF 32-34 and 47. Banks'
failure to promote to the spiral machine set-up claim is
Even if his claim was not time-barred, it fails on the merits.
Banks has submitted no direct evidence of discrimination. Lacking
any direct evidence of racial animus, Bank must rely on the
indirect method of proving racial discrimination. In order to
establish a prima facie case of race discrimination for failure to promote, Banks must show that (1)
he is a member of a protected class, (2) he applied and is
qualified for an open position, (3) he was rejected for the
position, and (4) the employer awarded the position to someone
outside the protected class who was similarly or less qualified
than Banks. Jordan v. City of Gary, Indiana, 396 F.3d 825, 833
(7th Cir. 2005). As the Court is limited to the contents of
Defendant's Statement of Undisputed Material Facts, the
undisputed evidence establishes that Banks cannot satisfy the
last three elements of the prima facie case.
There is no dispute that Archer Wire has not had an open set-up
position on the spiral machine since July 2002. DSUF 33; see
Howard v. Lear Corp. Eeds and Interiors, 234 F.3d 1002, 1006
(7th Cir. 2000). Moreover, Michael Holmes, an
African-American, is the set-up employee for the spiral machine
and has been since July 2002. DSUF 28. Holmes is the only
employee ever employed by Archer Wire who has set up the spiral
machines for Archer Wire. DSUF 29. Although Banks claims that
Archer Wire trained Hong Cong Nguyen to set up the spiral machine
for two or three weeks, the undisputed facts establish that
Nguyen was never trained to set up the spiral machine at Archer
Wire nor placed into the set-up position on the spiral machine at
Archer Wire. DSUF 47-49. On a few occasions, Nguyen operated the
spiral machine during the second shift but did not set up the
machine. DSUF 50. Given the undisputed difference between
"operating" and "setting up" a machine (DSUF 14-18), the fact
that Nguyen operated the spiral machine for a few weeks does not
support an inference that there was a vacant set-up position on
the spiral machine.
Moreover, even if a set-up position on the spiral machine was
available, Banks has not shown that he was qualified for the
position. In or around February of 2003, Banks told Martinez he
wanted to set up the spiral machine on second shift. DSUF 34.
Banks' former supervisor from Wirecraft, Michael Holmes, testified that Banks alternated between a trainee
and an operator at Wirecraft. DSUF 37. Holmes told Martinez that
Banks did not have a good working knowledge of how to operate or
set-up the spiral machine and that Banks had produced bad parts
on the spiral machine at Wirecraft. DSUF 39. Holmes also told
Martinez that he (Holmes) did not want to be responsible for
parts produced by Banks on the spiral machine. DSUF 40. On the
current record, Banks has not shown that he was qualified for a
set-up position on the spiral machine.
Similar facts apply to the press welder set-up position. There
was no available press welder set-up position. Arceo was the
set-up employee on the press welder at Wirecraft. DSUF 51. In
July 2002, Archer Wire hired Arceo as the second shift set-up
employee on the press welder in the metal face guard department.
DSUF 52. In or around March 2003, Martinez offered Banks the
opportunity to train on how to set up the press welder in the
metal face guard department and Banks agreed. DSUF 53. In order
to be prepared for future anticipated need, Archer Wire trains
employees to learn set-up procedures even through there may not
be a set-up position available at the time. DSUF 21. Arceo
trained Banks for at least four months in set-up procedures on
the press welder in case a position became available in the
future. DSUF 56, 59, 60. Banks has no complaints about the way
Arceo trained him to set up the press welder machine. DSUF 61.
Being trained does not guarantee a promotion to a set-up
position. DSUF 19-21. At no time since Banks began training on
the press welder at Archer Wire has there been an open set-up
position on the press welder in the metal face guard department
nor has anyone been promoted to such position. DSUF 54,
55.*fn6 Banks claims that a non-African American (Alejandro Sagal) was
promoted to the set-up position instead of him. DSUF 85. The
undisputed facts demonstrate otherwise. Sagal assisted Arceo on
the operation of the press welder in the metal face guard
department for less than one month in late 2003 or early 2004.
DSUF 86. Sagal was never trained on how to set up the press
welder machine, nor did Sagal become a set-up employee on the
press welder machine. DSUF 87. No one outside Banks' protected
class, or anyone else, was promoted into the press welder set up
position trained for by Banks. DSUF 55. Even if a press welder
set-up position was available. Banks has not shown that he was
qualified for the position. Granados and Arceo both testified
that Banks was not fully trained or prepared to fill the
position. DSUF 68, 70, 71.
Even assuming Banks could demonstrate a prima facie case on his
failure to promote claim, Banks has not shown that Archer Wire's
reasons for failing to place him in a set-up position on the
spiral machine or press welder was a pretext for unlawful
discrimination. Archer Wire has produced evidence of a
legitimate, nondiscriminatory reason for not placing Banks in the
set-up positions: no positions were available and he was not
qualified. To demonstrate pretext, "a plaintiff must show more
than that the employer's decision was incorrect, the plaintiff
must also show the employer lied about its proffered
explanation." Abioye v. Sundstrand Corp., 164 F.3d 364, 368
(7th Cir. 1998).
Archer Wire purchased spiral machines mainly to service a
former Wirecraft customer that ordered wire fan guards. DSUF 27.
In July 2002, Archer Wire hired Holmes, an African-American from
Wirecraft, as a set-up employee for the spiral machine. DSUF 28.
In early 2003, that customer ceased purchasing the wire fan
guards from Archer Wire. DSUF 30. After the orders from the fan
guard company ceased, Archer Wire rarely used the spiral machines
and only for a small number of low volume clients. DSUF 31. There was not enough customer demand
to support a set-up position on the spiral machine for the second
shift. DSUF 35. Banks does not disagree; it is undisputed that
Banks believed that there were not enough orders to support a
set-up position on the second shift for the spiral machine. DSUF
36. Moreover, Holmes, who is familiar with Banks' operation and
set-up of the spiral machine at Wirecraft, warned against placing
Banks on the spiral machine. DSUF 38-40. With respect to the
press welder set-up position, it is undisputed that an open
position never existed on the second shift. DSUF 54, 55. In
addition, Granados and Arceo believed that Banks was not
qualified to perform set-up on the press welder without further
training. DSUF 68-70. On the current record, there is no evidence
suggesting that the real reason Archer Wire failed to promote
Banks to the set-up positions was related to his race.
3. Transfer to First Shift
Banks alleges that he was transferred from second shift to
first shift in November 2003 because of his race. Banks has no
direct evidence of discrimination. DSUF 89, 90. Banks does not
believe that he was moved to the first shift because of his race
or color. DSUF 76, 77. To establish a prima facie case of
discrimination with respect to his transfer, Banks must show that
(1) he is a member of a protected class, (2) he performed his job
satisfactorily, (3) he suffered an adverse employment action, and
(4) the employer treated similarly situated employees who are not
in the protected class more favorably. Grube v. Lau Indus.,
Inc., 257 F.3d 723, 728 (7th Cir. 2001). Banks did not
suffer an adverse employment action. A transfer to a different
shift, without any reduction of status or pay or significantly
diminished job responsibilities, is not an adverse employment
action. Grube, 257 F.3d at 728; see also Williams v.
Bristol-Myers Squibb Co., 85 F.3d 270, 275 (7th Cir. 1996)
(holding "a transfer involving no reduction in pay and no more
than a minor change in working conditions" does not constitute an adverse employment
action). It is undisputed that Banks was on the first shift for
no more than one week, and he did not receive less in pay or
benefits while working on the first shift. DSUF 82, 83. Working
the second shift is Banks' personal preference, but "not
everything that makes an employee unhappy is an actionable
adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441
(7th Cir. 1996).
Moreover, even if Banks could make out a prima facie case of
discrimination with respect to his transfer to the first shift,
Banks cannot avoid summary judgment because there is no evidence
of pretext to rebut Archer Wire's non-discriminatory reason for
his transfer. According to Archer Wire, Banks was assigned to
first shift because of a large influx of orders for metal face
guards in or around November 2003. DSUF 72. Archer Wire moved
approximately seven employees, including Banks, from the second
shift to the first shift to have experienced employees on the
first shift to accommodate these new orders. DSUF 73. Martinez
told Banks that he was being moved to the first shift because
they needed more people on the first shift. DSUF 74. Banks does
not doubt Archer Wire's explanation that it needed more employees
to work the first shift. DSUF 75. Although Banks now claims that
less senior, non-African American employees (Nuygen and Que
Nuygen) did not have to transfer to first shift, Banks admitted
at his deposition that he did not think his transfer was because
of his race or color. DSUF 76.
4. Written Warnings
Banks also alleges that he was unlawfully discriminated against
when Granados issued him written warnings on three occasions for:
(1) failing to make the standard number of pieces per hour in
January 2004; (2) failing to properly trim 65 pieces and failing
to meet the standard rate per hour in May 2004; and (3) missing
nine days of work over a three-month period in September 2004. Banks has no direct evidence of discrimination. DSUF 89, 90.
Granados never told Banks that he does not like Banks because
Banks is African-American or that Granados does not like
African-Americans in general. DSUF 92. In order for Banks to show
that he was disciplined for a prohibited discriminatory reason,
he must establish that: (1) he is a member of a protected class;
(2) he was meeting his employer's legitimate work expectations;
(3) he suffered an adverse employment action; and (4) similarly
situated non-African American employees were treated more
favorably. Jordan, 396 F.3d at 835. Banks cannot establish a
prima facie case.
Archer Wire claims that Banks' performance was not meeting its
expectations because Banks admitted engaging in the conduct that
resulted in the three written warnings in 2004. The fact that
Banks was not meeting his employer's legitimate expectations is
not dispositive here. Where a plaintiff alleges discriminatory
discipline based on disparate punishment "the second and fourth
prongs of McDonnell Douglas merge." Lucas v. Chicago Transit
Authority, 367 F.3d 714, 728 (7th Cir. 2004). In these
cases, "there is no question that the employee failed to meet his
employer's expectations. Instead, the plaintiff must establish
that he received dissimilar and more harsh punishment than
that received by a similarly situated employee who was outside
the protected class." Id. Accordingly, it is unnecessary to
consider whether Banks was meeting Archer Wire's legitimate
expectations, and the Court focuses on Archer Wire's challenge to
the third and fourth elements of the prima facie case.
Archer Wire argues that the January and May 2004 written
warnings did not amount to an adverse employment action because
there was no corresponding loss of pay or benefits. An adverse
employment action is a "quantitative or qualitative change in the
terms or conditions of employment." Haywood v. Lucent Techs.,
Inc., 323 F.3d 524, 532 (7th Cir. 2003). "[A] negative evaluation or admonishment by an employer does not rise to the
level of an adverse employment act. There must be some tangible
job consequence accompanying the reprimand to rise to the level
of a material adverse employment action; otherwise every
reprimand or attempt to counsel an employee could form the basis
of a federal suit." Lucas, 367 F.3d at 731 (internal citations
omitted); See also Sweeney v. West, 149 F.3d 550, 556-57
(7th Cir. 1998); Smart, 89 F.3d at 442 (holding undeserved
negative performance evaluations alone cannot constitute an
adverse employment action).
Banks argues that the written warnings qualify as adverse
actions because they affect his eligibility for future
promotions. Pl's Opp. at 3. Archer Wire's Employee Handbook
states: "An excessive number of warnings could not only hamper
advancement but also result in a period of probation, suspension
without pay, or eventual dismissal." Def's Exh.C-2 at 12. The
Court concludes that on the current record, the January and May
2004 written warnings do not amount to a materially adverse
employment action. It is undisputed that the two warnings did not
result in any tangible job consequence. Banks has not been placed
on probation, suspended, or dismissed. See Kersting v.
Wal-Mart Stores, Inc., 250 F.3d 1109, 1118-19 (7th Cir.
2001). Although with the benefit of hindsight, each warning
brought Banks closer to his September 2004 suspension, "[s]uch a
course was not an inevitable consequence of every reprimand."
Oest v. Illinois Dep't. of Corrections, 240 F.3d 605, 613
(7th Cir. 2001). "[J]ob-related criticism can prompt an
employee to improve her performance and thus lead to a new and
more constructive employment relationship." Id.
Banks must point "to an immediate consequence of the
reprimands, such as ineligibility for job benefits like
promotion, transfer to a favorable location, or an advantageous
increase in responsibilities" to show that disciplinary actions
amount to an adverse employment action. Oest, 240 F.3d at 613.
There was no immediate consequence of the first two written
warnings. Banks is not ineligible for promotion. The fact that the two written
warnings could lead to more severe future discipline under Archer
Wire's progressive discipline system or affect a future promotion
seems too speculative to constitute an adverse employment action.
See Thomsen v. Romeis, 198 F.3d 1022, 1028 (7th Cir.
2000) (abrogated on different grounds by Spiegla v. Hull,
371 F.3d 928 (7th Cir. 2004)) (cited in Oest for the
proposition that "the reprimands the plaintiff had received might
not, as the plaintiff asserted, lead to future discipline and
affect his ability to compete for promotions and concluding that
"[t]hese consequences, considered either individually or in
conjunction with each other, appear to be somewhat
Even if the Court is wrong about whether the January and May
2004 written warnings are materially adverse, Archer Wire is
entitled to summary judgment on this claim. Regarding the forth
prong of the prima facie case, it is undisputed that similarly
situated non-African American employees were not treated more
favorably. DSUF 134-189. Similarly situated employees are
"directly comparable to [the plaintiff] in all material
respects." Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002). To determine whether two employees are
directly comparable, the Court considers whether the employees
held the same job description, were subject to the same
standards, and were subordinate to the same supervisor. Brummett
v. Sinclair Broadcast Group, 2005 WL 1567297, at *6 (7th
Cir. July 6, 2005). Archer Wire presented a list of non-African
American employees who received written warnings for the same
conduct as Banks. DSUF 134-189. The other employees are similarly
situated to Banks because they are production employees under the
same management team, and were subject to the same performance
For similar reasons, Banks has not presented sufficient
evidence of pretext to preclude summary judgment. Archer Wire's
non-discriminatory reason for the written warnings is that it was applying its work rules regarding poor work quality, production
goals, and unexcused absences. As discussed above, there is no
evidence showing that similarly situated employees belonging to a
different racial group received more favorable treatment. Thus,
there is no genuine issues as to whether Archer Wire's reason for
disciplining Banks was a pretext for discrimination.
The Court next considers Banks' retaliation claim. Banks seems
to claim that Archer Wire retaliated against him by issuing him
the three written warnings in 2004, after he filed his EEOC
charge. Under the direct method, a plaintiff must present direct
evidence of (1) a statutorily protected activity, (2) an adverse
employment action and (3) a causal connection between the two.
Davis v. Con-Way Transportation Central Express, Inc.,
368 F.3d 776, 786 (7th Cir. 2004). "`Direct evidence' is defined the
same for discrimination and retaliation claims that is, it can
be an admission of intentional discrimination or a `mosaic' of
circumstantial evidence that directly points to a discriminatory
intent." Id. There is no direct evidence of retaliation. The
only possible circumstantial evidence to which Banks could point
would be suspicious timing because Banks received his first
written warning in the same month he filed his EEOC charge. Given
Banks' admission that he engaged in the conduct that resulted in
the January 2004 warning, a reasonable jury could not conclude
from timing alone that Banks' first written warning was
Because Banks does not have any direct evidence that the three
written warnings were retaliatory, he must proceed under the
indirect burden-shifting analysis. Under the indirect method,
Banks must establish a prima facie case of retaliation by showing
that: (1) he engaged in a statutorily protected activity; (2) he met his employer's legitimate
expectations; (3) he suffered an adverse employment action; and
(4) he was treated less favorably than similarly situated
employees who did not engage in a statutorily protected activity.
Archer Wire does not dispute that Banks engaged in protected
activity but argues that Banks cannot show a genuine issue of
material fact regarding the other three elements. Filing the EEOC
charge and the union grievance regarding alleged race
discrimination in Bank's transfer to first shift are statutorily
protected activity. Lang v. Illinois Dept. of Children and
Family Services, 361 F.3d 416, 419 (7th Cir. 2004). The
analysis of the second, third, and fourth elements of his
retaliation claim is the same as his discrimination claim
regarding the written warnings. The January and May 2004 warnings
were not adverse employment actions.*fn8 In addition, Banks'
failure to demonstrate that Archer Wire treated more favorably
similarly situated employees who did not engage in protected
activity dooms his retaliation claim. DSUF 134-189.
D. Hostile Work Environment
Banks also alleges that he was subjected to a racially hostile
work environment. To establish a claim of racial harassment,
Banks must show that (1) he was subject to unwelcome harassment;
(2) the harassment was based on his race; (3) the harassment was
sufficiently severe or pervasive so as to alter the conditions of
his employment and create a hostile or abusive atmosphere and (4)
there is a basis for employer liability. Luckie v. Ameritech
Corp., 389 F.3d 708, 713 (7th Cir. 2004). A hostile work
environment must be both objectively and subjectively offensive.
Id. at 714. Since Banks fails to establish at least two of the elements of a
hostile work environment claim, Archer Wire is entitled to
To satisfy the second element of his hostile work environment
claim, Banks must show that the conduct at issue had a racial
character or purpose. Luckie, 389 F.3d at 713. "[N]ot every
perceived unfairness in the workplace may be ascribed to
discriminatory motivation merely because the complaining employee
belongs to a racial minority." Beamon, 411 F.3d at 863. Rather,
"the alleged harassment must be `sufficiently connected to race'
before it may reasonably be construed as being motivated by the
defendant's hostility to the plaintiff's race." Id. at 864.
Banks has failed to show that the complained-of actions were
attributable to race. Banks claims that he was harassed by
Martinez, Granados, and Arceo after he filed the union grievance
in November, 2003. DSUF 88, 93. Banks claims that there were "a
couple of small incidents" where Martinez timed Banks' work
performance. DSUF 97. Banks also testified that "Martinez hasn't
really been harassing me." DSUF 96. Other than the timing
incident, there are no other instances where Martinez allegedly
harassed Banks. DSUF 98. Banks claims that Granados and Arceo
harassed him by closely scrutinizing Banks' work. DSUF 101, 103,
104. Banks testified that Areco would do "little simple things"
to harass him, such as not allowing Banks to sit down or to use
the radio. DSUF 102. Banks claims that Granados harassed him by
giving Banks "bogus write-ups." DSUF 104.*fn9
None of these incidents has a racial character or purpose.
Banks was not the target of any racial slurs, epithets, or other
overtly race-related behavior. DSUF 89-92. Moreover, "[t]here is
no inherently racial component to an employer providing an employee
with a critical (even an unfairly critical) performance
review. . . ." Beamon, 411 F.3d at 864. Banks has not shown any
connection between the "harassment" of which he complains and his
race. To the extent that the "over-scrutiny" of his work resulted
in written warnings, Granados, Martinez, and other managers have
issued written warnings to non-African American employees for the
same conduct during the same time period. DSUF 134-189. Banks
witnessed Granados discipline a non-African-American employee
under for failing to meeting production goals on a new machine,
which the same conduct which gave rise to Banks' May 2004 written
warning. DSUF 112-121. Banks also admitted engaging in the
conduct for which he received the written warnings, which shows
that the warnings were not "bogus." DSUF 111, 113, 124.
Furthermore, the incidents at issue, even when taken together,
are not sufficiently severe or pervasive to amount to an
objectively hostile work environment. To determine whether an
environment is objectively hostile or offensive, the court must
consider all the circumstances, including frequency and severity
of the conduct, whether it is humiliating or physically
threatening, and whether it unreasonably interferes with an
employee's work performance. Luckie, 389 F.3d at 714. "The
workplace that is actionable is the one that is hellish." Rogers
v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003)
(quoting Baskerville v. Culligan Int'l Co., 50 F.3d 428
(7th Cir. 1994)).
Banks has not shown that his workplace was hellish. Compare
with Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668
(7th Cir. 1993); Daniels v. Essex Group, Inc.,
937 F.3d 1264 (7th Cir. 1991). Viewing the evidence in a light most
favorable to Banks, the record reveals that Banks' work
performance was timed, Banks' work was "over-scrutinized," Banks
received three written warnings, and Banks was not allowed to sit
down or listen to a radio at work. These are isolated incidents that were not physically threatening or humiliating.
Moreover, Martinez times the performance of other employees.
Banks also engaged in the conduct for which he was disciplined,
and it is undisputed that Banks and his co-workers received
written warnings for the same conduct. No reasonable jury could
find that the work environment described by Banks was objectively
hostile. See Herron v. DaimlerChrysler Corp., 388 F.3d 293
(7th Cir. 2004) (plaintiff's complaints about transfers, a
late overtime payment, his salary, and difficulties with his
managers was "normal workplace friction" and neither severe nor
pervasive enough to constitute racial harassment); Patton v.
Indianapolis Pub. Sch. Bd., 276 F.3d 334, 339 (7th Cir. 2002)
(rejecting hostile work environment claim even though plaintiff's
supervisors treated her rudely, ignored her suggestions, failed
to communicate changes at work, and severely criticized her
because "a reasonable jury could not have determined [this]
treatment to be so severe or pervasive as to alter the conditions
of [plaintiff's] employment in a significant way."). Since Banks
did not show a connection to his race or the existence of a
hostile work environment, the Court need not examine the issue of
For the reasons stated above, Defendant's Motion for Summary
Judgment [20-1, 21-1] is granted. The Clerk is directed to enter
judgment in favor of Defendant and against Plaintiff on the
complaint pursuant to Federal Rule of Civil Procedure 58. This
case is set for a status hearing on September 1, 2005 at 9 a.m.