The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On September 21, 2007, Plaintiff Robert Leonard filed a Complaint (#1) alleging that Defendant, Eastern Illinois University (EIU), violated the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 when he was denied a promotion at work. Defendant filed its Answer and Affirmative Defenses (#11) on November 19, 2007. Defendant filed a Motion for Summary Judgment (#23) on February 9, 2009. Plaintiff filed his Memorandum in Opposition (#27) on April 2, 2009. Defendant filed its Reply (#29) on April 16, 2009. The motion is now fully briefed and ripe for a ruling. For the following reasons, Defendant's Motion for Summary Judgment (#23) is GRANTED.
The following facts are taken from "Statement of Material and Undisputed Facts In Support of Defendant's Motion for Summary Judgment" filed by Defendant that have not been objected to by Plaintiff, the deposition testimony of Plaintiff and others, and from exhibits filed as attachments to the filings in this case.
Plaintiff, a Native American, was hired by Defendant in 1987 under the Learner's Program, a program to hire women and minorities and people with handicaps at EIU. Plaintiff suffers from retrograde amnesia as the result of a severe closed head injury occurring in 1987. Plaintiff was hired as a building service worker. He worked at EIU for six months before resigning and moving to Michigan with his wife. Plaintiff was rehired at EIU in August 1991 under the same Learner's Program. After completing a probationary status of six months, he was considered a full status employee. He was again a building service worker, at which position he worked from 1991 until his resignation on February 26, 2008.
Plaintiff is a Native American through his father's family history and believes his father was enrolled as a member of the Saginaw Tribe. Plaintiff has never sent in letters to be enrolled as a tribe member himself due to his personal beliefs, but this lack of enrollment does not preclude him from being considered a Native American. No documentation exists that he is a member of a tribe except for his father's enrollment and his father's family documentation as to that status.
From 1987 to 2008 Plaintiff estimates that he has participated in four or five interviews for a promotion to Building Services Subforeman and that in the last five years he has participated in three interviews for a promotion. However, he estimates that he has missed approximately three to five interviews. Unlike a building service worker, a Building Service Subforeman does inventories and checks up on the work of others. In fact, a week prior to the March 2005 interview he missed an interview for the same position. Plaintiff's father was sick at the time and he called ahead to cancel the interview.
In March 2005, he did attend an interview for a promotion to Building Services Subforeman. The six interviewers sitting on the interview panel were: Valerie Leonard (no relation), Kevin Larkin, Steve Gilbert, Herb McElwee, Travis McGee, and John Sigler. Each interviewer had a equal role in the decision-making process of choosing an individual for promotion to subforeman. Plaintiff knew all of the interviewers and had worked with them prior to his interview. When Plaintiff arrived at the interview, two of the interviewers, McElwee and Magee, took off their jackets and were wearing Chief Illiniwek shirts. The interview occurred on March 24, 2005, the same day the University of Illinois men's basketball team was playing in the Sweet 16 of the NCAA Basketball Tournament. During this time there were a lot of Illini fans in Champaign and Charleston, Illinois, including on EIU's campus. In the spring of 2005, it was common to see people in public wearing clothing in support of the men's basketball team and Chief Illiniwek as well.
Plaintiff claimed that he was surprised that Magee and McElwee were wearing the Chief Illiniwek (the Chief) shirts because of his extreme distaste for the symbol. Plaintiff felt that it was extremely inappropriate for them to display such things at an interview for a promotion. Plaintiff knew there were other opinions concerning the Chief even in the Native American community. Plaintiff claims a co-worker told him that he overheard Magee and McElwee saying that they will wear their Chief stuff no matter what Plaintiff likes or what he thinks. Plaintiff claims he heard about Magee and McElwee's statements regarding the Chief just prior to Plaintiff's interview. Plaintiff believed that when Magee and McElwee wore the shirts it was directed at him. Plaintiff believed this because of comments he heard about what Magee and McElwee were going to do from the unknown co-worker. Despite hearing from that co-worker about Magee and McElwee's plans to wear the shirts, Plaintiff was still surprised they wore them and thought it was unprofessional because they knew of his feelings about racial mascots. Other than McElwee and Magee, none of the other interviewers were wearing Chief shirts.
The interview was directed towards Plaintiff's role as a building service worker. All of the questions during the interview were directed towards the job Plaintiff was seeking and how he would perform in that position. The same questions were asked of all the applicants and none of the six members of the interview panel had anything to do with drafting the questions. Labor relations and human resources had something to do with writing the questions and selecting the criteria for selecting a subforeman. The interviewers on the panel usually did not deviate from the set questions they were given. Plaintiff did not have any knowledge as to how the other candidates for the promotion performed in their interviews, but felt that he did not perform well in his because he was angry and that was how he came across. He also did not know how Magee and McElwee rated him in his interview nor does he know how he was evaluated compared to the other candidates.
To make a decision on who would be selected for a subforeman position, each candidate was scored on the basis of five different categories: (1) related work experience; (2) supervisory experience; (3) ability to work with and lead others; (4) problem-solving ability; and (5) attendance at work. For each of those categories an individual could receive 1 to 5 points with 1 being the minimum and 5 being the maximum. All the scores would be totaled up for a total score of between 5 and 25 points. After every interviewer has scored the applicant, there is a discussion about said applicant, but no one changes their scores. The interviewers score applicants based on how the interviewer felt the applicant answered the questions. All of the interviewers are supervisors in some capacity and generally know an applicant's work history prior to the interview because it is a small campus and generally at least one member of the interview panel has supervised the applicant prior to the interview.
Magee had no opinion of Plaintiff as an employee prior to the interview and no one expressed their opinion to Magee about Plaintiff prior to the interview. Following the March 2005 round of interviews, no candidate was hired for the position of Building Service Subforeman. Plaintiff does not know why no one was hired at the time. Plaintiff believes no one was hired because of his complaint and that it would have been difficult for Defendant EIU to explain why another individual was promoted ahead of him. However, Plaintiff does believe it is possible other applicants may have interviewed better and been more experienced than him. He has no specific facts to support his claim that no one was hired for this promotion because of his complaint.
Sometime after the interview Plaintiff made his complaint about the Chief shirts to the Office of Civil Rights at EIU. Defendant EIU was proactive in educating employees about behaviors that might be offensive. Plaintiff supported the Office of Civil Rights' proactive approach. Employees at EIU were encouraged to file any kind of complaint they felt was necessary with the Office of Civil Rights. Plaintiff felt he could make any complaint he felt was necessary to the Office of Civil Rights. Nothing dissuaded him from making a complaint of discrimination or filing a grievance with the union throughout his years of employment at EIU.
Plaintiff interviewed for a promotion again in October 2005. He thought he did well in the second interview, but does not know how any of the interviewers rated him. In his October 2005 interview for a promotion, no one wore anything Illini-related or anything offensive to Plaintiff. The NCAA tournament was over by the second interview. During the second interview, there was a picture of a Native American on the back wall. Plaintiff was not offended by this picture and thought it was a respectful and good portrait. Plaintiff is offended by Native American depictions in sports mascots. He believed his attendance record at EIU was pretty good, but he took time off that was prescribed. He admits that he was tardy occasionally, but was never disciplined for being late. In the interview, McElwee asked Plaintiff about his attendance record. Plaintiff replied that his attendance was good, but he took time off that he was allowed based on the vacation time he accrued. Plaintiff also understood that he could not take any time off he wanted as a subforeman and that his attendance was required more than just normal. McElwee also had a concern that Plaintiff was not cleaning an area that he was supposed to be cleaning one summer. McElwee though Plaintiff did "pretty good" during his interview. For Magee, nothing stood out about Plaintiff's interview and he does not recall anything about Plaintiff's interview at all.
Plaintiff asked Steve Gilbert and Valerie Leonard (two of the interviewers) how he performed in his interview. Gilbert thought Plaintiff had a good interview, but did not stand out. Leonard thought he did a good job at the interview. Of all the candidates she rated, Leonard rated Plaintiff the lowest. Plaintiff was shown a sheet of how everyone scored him, but does not remember how each interviewer scored him now. He also does not know how Magee and McElwee scored him after the second interview. He does not know how the scoring process takes place for interviews, the years of experience or qualifications of the other candidates, or the attendance records of the other candidates. Plaintiff claimed that candidate Michelle Kusterman's (who got one of the positions) attendance record was not very good, but that was based on his own observation and not actual information of her attendance record.
Out of 25 possible points, Plaintiff received score of 20 from Valerie Leonard, a 17 from Kevin Larkin, a 19 from Steve Gilbert, a 19 from Herb McElwee, a 16 from John Sigler, and an 18 from Travis Magee, for a total score of 109 points. His lowest score was a 16 from John Sigler and his highest was a 20 from Valerie Leonard. Three candidates, Michelle Kusterman, Michael Goodson, and Stan Evermon were given the position of Building Service Subforeman after the October 2005 interviews. These individuals had the highest total scores out of all the candidates (Goodson: 142, Kusterman and Evermon: 131 each). Plaintiff did not believe Goodson should have been promoted, because he had heard Goodson was fired from Wal-Mart for theft of merchandise and time. Plaintiff also heard that Goodson had received a written warning about racial comments he had made and that Goodson did not do a good job. Plaintiff also claimed Kusterman should not have been promoted because of an incident once where, when students were moving out of the dorms, Plaintiff called Kusterman and told her she needed to return to work, but she never did. Plaintiff also did not believe Evermon should have been promoted based on what others who had worked with him said.
Plaintiff believes he was not hired because of his complaints and his status as a Native American and his viewpoints. He does not believe it has anything to do with his job performance or interview. He thought he performed his job well because he received awards from students and the Student Council, but admits that he never received awards from people who supervised him.
Included in Defendant's Reply to Plaintiff's Memorandum of Law In Response to Motion for Summary Judgment (#29), Defendant's included, as an attachment, a "Discrimination and/or Sexual Harassment Intake Form" filed by Plaintiff on October 25, 2005. Alleging discrimination, Plaintiff wrote:
"On 10-13-05 I was interviewed for a subforeman position. While I feel I was clearly one of the better ...