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Germano v. International Profit Association

November 1, 2007

MICHAEL GERMANO, PLAINTIFF,
v.
INTERNATIONAL PROFIT ASSOCIATION, INC., INTEGRATED BUSINESS ANALYSIS, INC., AND INTERNATIONAL TAX ADVISORS, INC., DEFENDANTS.



The opinion of the court was delivered by: Senior District Judge George W. Lindberg

MEMORANDUM AND ORDER

On December 29, 2006, Plaintiff Michael Germano filed his amended complaint against Defendants International Profit Association, Inc. ("IPA"), Integrated Business Analysis, Inc. ("IBA"), and International Tax Advisors, Inc. ("ITA") (collectively, "Defendants"). In his amended complaint, Plaintiff alleges that Defendants violated the Americans with Disabilities Act ("ADA") by failing to hire him as a tax consultant. Specifically, Plaintiff alleges that Defendants failed to hire him because he is deaf. On September 12, 2007, Defendants filed a renewed motion for summary judgment with respect to Plaintiff's ADA claim. IPA and IBA filed a separate motion for summary judgment that same day. Defendants' renewed motion for summary judgment is granted. IPA's and IBA's separate motion for summary judgment is denied without prejudice as moot.

Analysis

The entry of summary judgment is appropriate "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 that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Carter v. Am. Oil Co., 139 F.3d 1158, 1161 (7th Cir. 1998). To support a finding that Defendants are entitled to a judgment as a matter of law, "'the record must reveal that no reasonable jury could find for the nonmoving party.'" Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 627 (7th Cir. 2006) (citation omitted). When ruling on a summary judgment motion, the Court "must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party." Keri, 458 F.3d at 628 (citations omitted); but see McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir. 2003) (courts "'are not required to draw every conceivable inference from the record'") (citation omitted). While discharging this responsibility, the Court must refrain from "evaluat[ing] the weight of the evidence,. . .judg[ing] the credibility of witnesses, or. . .determin[ing] the truth of the matter. . . ."*fn1 Keri, 458 F.3d at 628 (citations omitted).

Because Defendants have filed summary judgment motions in this case, they "bear[] the initial responsibility of informing" the Court of the grounds for their motions and identifying those portions of the record which they "believe[] demonstrate the absence of a genuine issue of material fact." Id. at 627-28(citation omitted). Defendants may fulfill this responsibility "by simply 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the non-moving party's case." Id. at 628(citation and quotation marks omitted). On the other hand, the law is clear that "[t]o survive summary judgment, the nonmoving party must make a sufficient showing of evidence for each essential element of its case on which it bears the burden at trial." Salas v. Wis. Dep't of Corrections, 493 F.3d 913, 921 (7th Cir. 2007) (citation omitted). In other words, "the non-moving party must do more than raise some metaphysical doubt as to the material facts; the non-moving party must come forward with specific facts showing that there is a genuine issue for trial." Keri, 458 F.3d at 628 (citations omitted); see also Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001) ("A mere scintilla of evidence in support of the non-movant's position is insufficient. . .; a party will be successful in opposing summary judgment only when it presents 'definite, competent evidence to rebut the motion.'") (citations omitted). It therefore follows that "[c]onclusory allegations. . ., if not supported by the record, will not preclude summary judgment." Keri, 458 F.3d at 628 (citation omitted); see also Carter, 139 F.3d at 1163 (district courts are not "obligated in considering a motion for summary judgment. . .to scour the record to unearth material factual disputes") (citation omitted); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996) (district courts "rely on the non-moving party to identify with reasonable particularity the evidence upon which he relies") (citation omitted). It is similarly true that "'mere speculation or conjecture' will not defeat a summary judgment motion." McCoy, 341 F.3d at 604 (citation omitted).

I. Defendants' Renewed Motion for Summary Judgment

42 U.S.C. § 12112(a) reads: "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Here, Plaintiff alleges that Defendants violated the ADA when they refused to hire him. In their renewed motion, Defendants argue that "ITA did not hire Plaintiff because it wanted to pursue other more qualified applicants, which is a legitimate, non-discriminatory reason for not pursuing Plaintiff. Plaintiff can produce no evidence demonstrating that this reason was a lie or completely lacked a factual basis."

To defeat Defendants' renewed motion, Plaintiff must establish the existence of a genuine issue of material fact "using one of two methods. Under the so-called 'direct' method, [a] plaintiff may show either direct or circumstantial evidence that points to a conclusion that the employer acted as it did for illegal reasons. . . .The alternative way to prove discrimination is the familiar burden-shifting McDonnell Douglas method." Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1126 (7th Cir. 2006) (citations omitted).

A. Direct Method

At the outset, the Court notes that "'direct' proof of discrimination is not limited to near-admissions by the employer that its decisions were based on a proscribed criterion. . ., but also includes circumstantial evidence which suggests discrimination albeit through a longer chain of inferences." Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007) (citations omitted). More specifically, [c]ircumstantial evidence demonstrating intentional discrimination includes: '(1) suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other employees in the protected group; (2) evidence, whether or not rigorously statistical, that similarly situated employees outside the protected class received systematically better treatment; and (3) evidence that the employee was qualified for the job in question but was passed over in favor of a person outside the protected class and the employer's reason is a pretext for discrimination.'

Id. at 491. Plaintiff argues that circumstantial facts in this case allow him to survive summary judgment by proceeding under the direct method. The Court disagrees.

Plaintiff has not identified any direct evidence or admissions of discrimination in violation of the ADA.*fn2 The Court therefore turns to the "circumstantial evidence" identified by Plaintiff. Plaintiff initially asserts that "the timing and sequence of Defendants' actions are highly suspicious" and grounds "upon which a jury could infer discriminatory intent." He points to paragraph 20 of his statement of additional facts to support his allegation that Defendants (specifically, Ronald Sage) invited him to interview for a position during a June 15, 2005 telephone conversation. But the deposition testimony cited to support paragraph 20 is not admissible evidence. Instead, the testimony is inadmissible hearsay. FED. R. EVID. 801; FED. R. EVID. 802; Bombard, 92 F.3d at 562 ("The evidence relied upon must be competent evidence of a type otherwise admissible at trial. Thus, a party may not rely upon inadmissible hearsay in an affidavit or deposition to oppose a motion for summary judgment.") (citations omitted).

It is uncontested that "Plaintiff used a TDD relay service when he contacted. . .Sage on or about June 15, 2005." (Defs.' Statement of Uncontested Material Facts, at ¶71.) The following facts relating to the use of this service are also uncontested:

A TDD relay is a service used by Plaintiff in which communications are relayed through a third party. . . .Plaintiff used this service by typing a message into a teletypewriter device. Plaintiff's message is not sent directly to. . .Sage, but rather is transmitted to a third party operator who reads the message orally to. . .Sage by phone. . . .During this process,. . .Sage does not speak directly to Plaintiff, nor does he transmit any written communication to Plaintiff. . . .Sage speaks directly with a third party operator during the TDD relay service call. . . .The third party operator attempts to type into a computer in real time what he or she hears from the other party, in this case. . .Sage. . . .The third party operator's message is then transmitted to, and will appear on, the Plaintiff's TDD screen. (Defs.' Statement of Uncontested Material Facts, at ¶¶71-74.) As Defendants acknowledge, any statements made by Sage to the third-party operator may be admissible as admissions by a party-opponent. See FED. R. EVID. 801(d)(2). However, the Court does not need to address that issue because the communications between the third-party operator and Plaintiff are hearsay as Plaintiff is "offer[ing them] in evidence to prove the truth of the matter asserted" -- specifically, that Sage invited him to interview for a position.*fn3 FED. R. EVID. 801(c). Because the parties' summary judgment filings do not reveal that either party (1) deposed the ...


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