United States District Court, N.D. Illinois, Eastern Division
August 22, 2005.
STEVIE HARDY, Plaintiff,
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendant.
The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Stevie Hardy ("Plaintiff") has sued John E. Potter, postmaster
general of the United States Postal Service ("Defendant"), for
his alleged violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. Hardy claims he was racially
discriminated against because he is a light-skinned African
American. The case is before the Court on Defendant's Federal
Rule of Civil Procedure ("Rule") 56(c) motion for summary
judgment. For the reasons stated below, Defendant's motion is
Unless otherwise noted, the following facts are undisputed.
Hardy is a light skinned African-American male who has been
employed with the Postal Service since 1997. He has worked the
overnight shift as a custodian/laborer since July 2000. In August
2000, Harold Himes and Michael Polumbo were co-supervisors for
the overnight shift employees. Himes and Polumbo divided their supervisory responsibilities with Himes primarily supervising the
custodians, labor and building equipment mechanics and Polumbo
primarily supervising the mechanic and electronic technicians.
Hardy primarily reported to Himes. Plaintiff nevertheless
contends that Polumbo had the same power as Himes to direct his
work and several other postal employees. (Def.'s Reply Pl.'s
Stmt. of Facts ¶ 1.) This, it turns out, is a distinction without
Hardy's complaint is straight forward. He admits that he has
had a significant number of unscheduled absences, which permit
disciplinary action. However, he contends that he has been
punished in ways that other Caucasian or dark-skinned
African-American employees were not. When Hardy began his
employment, the attendance policy required that any employee who
would be late or absent from work was to call his supervisor, who
would complete a form 3971 to document the reasons for absence.
In 2002, the Postal Service adopted a new procedure. Under the
new system, if an employee was going to be late or absent to
work, he was required to call the Attendance Control Office
("ACO"). The central operator then asked the employee the reasons
for his tardiness or absence; the information was input into the
computer system, and the form 3971 was generated and forwarded to
supervisors. Once an employee has incurred three unscheduled
absences, ACO sends a notice to the supervisor to review the
attendance record. Generally, any absence or tardiness that is
not pre-planned is considered an unscheduled absence and can lead
to discipline. However, supervisors are provided with wide
discretion to further examine the circumstances surrounding each
absence and may treat unscheduled absences as scheduled absences
if they find the employee's reason compelling.
From December 2000 to May 2001, Hardy incurred eight
unscheduled absences and, consequently, Himes issued a letter of
warning to Hardy. Hardy grieved the letter and it was reduced to a review of his attendance record. One year later under the
new system, a notice was sent to Himes requesting a review
Hardy's attendance record. This time, seven unscheduled absences
were recorded from October 2001 to April 2002. Himes conducted a
pre-disciplinary interview to understand the circumstances behind
Hardy's absences. At that time, Himes determined that the
appropriate action was to conduct an informal discussion instead
of issuing a letter of warning. Himes, however, told Hardy that
future unscheduled absences would result in a more serious level
of discipline, i.e. a letter of warning. In July 2002, ACO again
requested Himes to review Hardy's attendance record because three
additional unscheduled absences were incurred from April 2002 to
July 2002. During the interview, Himes again took no official
disciplinary action. From July 2002 to December 2002, Hardy
incurred six additional unscheduled absences and, consequently,
on December 6, 2002, Himes issued a letter of warning to Hardy.
However, this official letter was rescinded by Himes in May 2003.
From May 2003 to August 2003, Hardy incurred seven unscheduled
absences, and Himes again issued an official letter of warning.
Hardy testified that he was suspended in December 2002, August
2003 and December 2004.
Hardy first complained of discrimination to the Equal
Employment Office ("EEO") counselor on December 19, 2001. On
January 8, 2002, Hardy filed a formal EEO complaint alleging
discrimination based on his race, color and disability. He
claimed that he was disciplined for unscheduled absences and
other employees were not.
The Legal Standard
To prevail on a summary judgment motion, "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Fed.R. Civ.
P. 56(c). At this stage, we do not weigh evidence or determine
the truth of the matters asserted. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw
all inferences in favor of the non-moving party. Michas v.
Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir.
2000). Summary judgment is appropriate only when the record as a
whole establishes that no reasonable jury could find for the
non-moving party. Id.
Title VII prohibits employment discrimination on the basis of
race, color, religion, sex or national origin.
42 U.S.C. § 2000e-2 (1994). In a race discrimination claim, to defeat
Defendant's summary judgment motion, Plaintiff must either
present direct evidence of Defendant's discriminatory intent or
prove intent via the burden-shifting method articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Cheek
v. Peabody Coal Co., 97 F.3d 200, 203 (7th Cir. 1996). In order
to establish direct evidence, there must be a virtual admission
by the decision maker that the action against the employee was
predicated upon the "prohibited animus." Haywood v. Lucent
Tech., Inc., 169 F.Supp.2d 890, 907 (N.D. Ill. 2001); see also
Foster v. Arthur Andersen, LLP., 168 F.3d 1029, 1035 (7th Cir.
1999). Absent such direct evidence or clear acknowledgment of
harassment, courts will examine the claim under the McDonnell
Douglas burden shifting analysis. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, (1973).
Under this burden shifting method, a plaintiff must first
establish a prima facie case of discrimination. Chiaramonte v.
Fashion Bed Group, 129 F.3d 391, 396 (7th Cir. 1997) (citations
omitted). To do so, a plaintiff must establish that: (1) he is a
member of a protected class; (2) he was meeting his employer's legitimate employment expectations;
(3) he suffered an adverse employment action; and (4) similarly
situated individuals who are not in his protected class were
treated more favorably. Gordon v. United Airlines, Inc.,
246 F.3d 878, 885-86 (7th Cir. 2001) (citing McDonnell Douglas,
411 U.S. at 801). The ultimate burden to prove discrimination always
remains with the plaintiff. See Sattar v. Motorola,
138 F.3d 1164, 1169 (7th Cir. 1998). If a plaintiff has successfully
demonstrated these elements, a rebuttable presumption of
discrimination is established. Gordon v. United Airlines, Inc.,
246 F.3d 878, 885-86 (7th Cir. 2001) (citing McDonnell Douglas,
411 U.S. at 801). Id.
The burden of production then shifts to the defendant to offer
a legitimate, nondiscriminatory reason for taking its challenged
employment action. Id. If the defendant carries his burden, the
plaintiff must then demonstrate that the defendant's legitimate
reason was actually a guise for discrimination. Id.
(referencing Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir.
2000)); see Von Zuckerstein, 984 F.2d at 1472. If the plaintiff
is able to show that the defendant's explanation was pretextual,
then he will have a viable claim for discrimination.
Having no direct evidence of discrimination here, if he is to
defeat Defendant's motion on this claim, Plaintiff must establish
a prima facie of discrimination. There is no dispute that
Plaintiff has satisfied the first and second elements. Thus, our
focus will be on the third and fourth prongs of the test.
Defendant contends that Plaintiff cannot make a prima facie
case on the third prong because he has not suffered any adverse
employment action. The term adverse employment action refers only
to those actions that cause "a materially adverse change in the
terms or conditions of . . . employment." Spring v. Sheboygan
Sch. Dist., 865 F.2d 883, 885 (7th Cir. 1989). "A materially adverse change might be indicated by a termination in employment,
a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might
be unique to a particular situation." Crady v. Liberty Nat'l
Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (citations
omitted). Though the term is interpreted broadly in this circuit,
"not everything that makes an employee unhappy is an actionable
adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441-42
(7th Cir. 1996) (holding that "negative performance evaluations
alone do not constitute an actionable adverse employment
action"); Spring, 865 F.2d at 886 (holding that reassignment
that did not negatively impact responsibilities or salary, was
not adverse employment action under ADEA). Furthermore, "a letter
of warning is generally considered insufficient to qualify as an
adverse employment action." Ezell v. Potter, 400 F.3d 1041,
1049 (7th Cir. 2005). However, a suspension and lost wages can be
considered an adverse action. See e.g. Russell v. Bd. of Trs.,
243 F.3d 336, 341 (7th Cir. 2001) (stating a five-day
disciplinary suspension was considered materially adverse because
it was a formal disciplinary action and because the employee lost
a week's pay.)
In his complaint, Plaintiff identifies the following discipline
that was taken against him. This action includes: (1) issuing
disciplinary actions as warning letters for attendance problems
and suspensions; (2) being given unscheduled or unexcused
absences; and (4) withholding pay from Plaintiff for a day that
he missed due to inclement weather. (First Amend. Compl. ¶ 6.)
However, there is no evidence to suggest that these actions had
any tangible, negative impact on Hardy's employment or that
Plaintiff's employment was ended as a result of these actions.
Such acts did not cost Plaintiff a promotion, a decrease in
wages, benefits or material responsibilities, or otherwise
adversely affect any term or condition of his job. Although a
significant suspension can be considered materially adverse, Hardy does not allege, much less
support with evidence, that the suspensions were unpaid, and in
fact states in his deposition that his pay was withheld only when
he missed work due to inclement weather and when he overslept a
few times. He does not suggest that withholding his pay for these
absences was improper. (Def.'s Stmt. of Facts, Ex. A at 53-55.)
Absent evidence to establish that Hardy received an adverse
employment action, his Title VII claim may not survive. Thus,
because Hardy has failed to satisfy the third element of a race
discrimination claim, his cause fails.
Hardy's cause also fails because he cannot identify similarly
situated employees who were treated more favorably than he.
Employees are situated similarly only if they "dealt with the
same supervisor, were subject to the same standards, and . . .
engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or
[defendant's] treatment of them." Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000) (stating that an
employee must show that he is similarly situated in performance
qualifications and conduct.) To be similarly situated, two
employees must be "directly comparable . . . in all material
respects." Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002). A plaintiff's perceptions of similarities should
not be based on his mere perceptions of likeness, but should be
fact-specific to show that he is directly comparable to another
person. Essex v. United Parcel Serv., 111 F.3d 1304, 1311 (7th
Hardy compares himself to other custodians, mechanics and
technicians, some of whom reported to Himes and some of whom
reported to Polumbo. Defendant contends that the named
individuals did not commit the same infractions with the same
frequency as Plaintiff. Nothing in the record shows that
Plaintiff engaged in precisely the same conduct as the other
named individuals who were truant. Also, by virtue of their different jobs, the
mechanic and technician are not similarly situated because they
were not equally qualified, performed different job functions,
and had different job responsibilities. Furthermore, one of the
custodians with whom Plaintiff compares himself was a group
leader, and he, too, may not be considered as similarly situated
As to the other custodians, Plaintiff has not pointed to any
evidence that shows their conduct, absences, and attendance
history were directly comparable to Plaintiff's. There is no
proof that their infractions happened as often or that the
mitigating circumstances surrounding the other's absences were
not compelling to allow the supervisors to exercise their
discretion in determining how to categorize the absence. Hardy
does not claim to have any knowledge of the actual reasons or
circumstances that these other employees offered in explaining
their absence. Without such pertinent facts, we may not conclude
that the situations were comparable. Also, Defendant points to a
Caucasian employee, albeit with a different job title, who was
issued a letter of warning and a seven-day suspension for his
Hardy argues that all of the attendance infractions should be
treated the same and that supervisors should not consider
extenuating circumstances to assess whether an absence is
categorized as scheduled. However, it is not for us to determine
in this motion the effectiveness of the postal service's policies
and procedures. Further, Plaintiff argues that because Defendant
has not proven that there were differences between Plaintiff and
the other employees, Defendant has not carried its burden. We
disagree. Plaintiff has the burden to establish a prima facie
case, which includes demonstrating that he was treated
differently than other similarly situated employees.
Plaintiff has offered no evidence to suggest that Defendant
treated similarly situated custodians who were inexcusably absent
from work the number of times Plaintiff was more favorably than Hardy. Hardy has made no showing that the
non-custodial employees were subject to the same workplace rules
or that the custodial employees engaged in the same conduct and
had the same conversations with their supervisors as Hardy.
Hardy's perceived similarities to the others are general
statements that lack the fact-specific examples to allow us to
conclude that those individual's were similarly situated. Thus,
he has not satisfied the fourth element of his prima facie case
of discrimination and his claim fails.
Moreover, although Plaintiff failed to establish a prima facie
case and the burden never shifted to Defendant, Defendant does
offer a legitimate, non-discriminatory reason for its actions.
Specifically, Defendant presents evidence that shows Plaintiff's
chronic attendance violations and demonstrates that Defendant's
disciplinary actions were predicated on numerous policy
infractions. However, we do not reach this issue because
Plaintiff has failed to present his prima facie case. Defendant's
motion for summary judgment is, therefore, granted.
For the reasons set forth above, Defendant's motion for summary
judgement is granted. This is a final and appealable order.
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