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.
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. ...