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August 22, 2005.

STEVIE HARDY, Plaintiff,

The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge


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 granted.


  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 a difference.

  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. ...

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