The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Defendant Transportation Security Administration ("TSA") employed Plaintiff Norman P. Lupescu at Chicago Midway Airport for seven months before terminating him. Subsequently, Lupescu brought this employment discrimination suit, alleging that that the TSA engaged in unlawful racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §2000e et seq. (2006). This matter is presently before the court on TSA's motion for summary judgment. For the reasons stated within, the court grants TSA's motion.
First, the court must resolve the admissibility of certain records regarding Lupescu. These records largely consist of TSA forms, each captioned "Record of Conduct" or "Counseling Form," but referred to collectively throughout this opinion as Lupescu's "records." (See Def.'s Exs. 5-12.) These records are generally first-person accounts of Lupescu's allegedly improper conduct written by Lupescu's superiors who witnessed the conduct; the records are supplemented in certain instances by Lupescu's versions of the events in question.
"Admissibility is the threshold question because a court may consider only admissible evidence in assessing a motion for summary judgment." Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). The evidence need not be admissible in form-- affidavits and deposition transcripts inadmissible at trial nevertheless may be considered for purposes of summary judgment--but must be so in content. Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). Lupescu contests the authenticity of TSA's records without specifically explaining how they are inauthentic. TSA submits an affidavit that satisfies the requirement that the proponent submit evidence "sufficient to support a finding that the matter in question is what its proponent claims." See Def.'s Exs. 4 & 36; see also Fed. R. Evid. 901. Lupescu's records are therefore deemed authentic for purposes of this motion.
Lupescu next argues that the records are hearsay. TSA does not contest whether the records are hearsay, and with good reason: they are classic statements not made at trial or hearing that TSA offers for the truth of the matters asserted (i.e., that Lupescu engaged in the conduct recorded).*fn1 See Fed. R. Evid. 801(c). Rather, TSA argues that these are records of regularly conducted activity. Such records are admissible under Federal Rule of Evidence 803(6) if the records are made (1) are made at or near the time of the incident recorded (2) by, or from information transmitted by, a person with knowledge (3) pursuant to the regular practice of a regularly conducted business activity and (4) are kept in the course of a regularly conducted business activity. Fed. R. Evid. 803(6). This exception to the hearsay rule contemplates that each of the above requirements be "shown by the testimony of the custodian [of the records] or other qualified witness...." Id.
The Seventh Circuit has alternately found disciplinary records admissible and inadmissible; as with many evidentiary disputes, the outcome depends on the foundation laid for the admission of the evidence in question. See Coates v. Johnson & Johnson, 756 F.2d 524, 549 (7th Cir. 1985); see also Pierce v. Atchison Topeka & Santa Fe Ry. Co., 110 F.3d 431, 444 (7th Cir. 1997). TSA asserts without citation that the forms on which the records are kept "have been regularly used since TSA's inception," and attaches an attestation that the records are "kept in the ordinary course of the Transportation Security Administration's business...." (See Def.'s Ex. 4, at ¶ B.) A review of the records further reveals that they were created at or near the time of the events recorded--no record post-dates the event it memorializes by more than two days-- and were recorded first-person, that is, by a person with knowledge of the event recorded. (See Def.'s Exs. 5-12.)
But TSA provides no affidavit attesting that its regular practice was to make these records. Even if this court believed that the records were made as a regular practice--a fact that is far from clear, given that each report appears to stem from a unique and irregular incident, and reports vary in form--that belief would be no substitute for a foundation supported by affidavit. See Collins v. Kibort, 143 F.3d 331, 337-38 (7th Cir. 1998). While the evidence produced at summary judgment need not be of the exact form necessary to be admissible at trial, see Winskunas, 23 F.3d at 1267-68, the TSA has failed at this point to lay a sufficient foundation for the court to infer that the records at issue were regularly made and would therefore be admissible. As presently supported, the TSA's records of conduct do not qualify as records of regularly conducted activity and are inadmissible for the truth of the matters asserted therein.
TSA's argument that Lupescu "inexplicably" attempts to use similar records of conduct in his response fails in two respects. First, unlike Lupescu, TSA did not object to the admission of the records put forth by Lupescu, and the court will not construe an argument in reply as an objection. (See Def.'s Resp. to Pl.'s Stmt. of Add'l Facts ¶¶ 54, 57.*fn2 ) Second, even assuming that the court has an independent duty to assess the admissibility of the documents on which Lupescu relies, see McLaury v. Duff & Phelps, Inc., 691 F. Supp. 1090, 1096 n.2 (N.D. Ill. 1988), the statements contained in those reports are largely by TSA employees and agents and so, when offered by Lupescu, are admissions of a party opponent, admissible as non-hearsay. See Fed. R. Evid. 801(d)(2)(A).*fn3
While the parties contest many of the material facts, the facts below are uncontested unless otherwise noted and, where contested, stated in the light most favorable to Lupescu, the non-moving party.
TSA began screening at Midway Airport in 2002 and, to facilitate screening operations, hired hundreds of new employees. (See Def.'s Resp. to Pl.'s Stmt. of Add'l Facts ¶ 21.) Lupescu was one such employee, and began working for TSA at Midway Airport on August 23, 2002 as a lead transportation security screener (a "lead screener"). (See Pl.'s Resp. to Def.'s Stmt. of Facts ¶ 1.)
Lupescu's responsibilities as a lead screener included overseeing a screening checkpoint and determining job assignments for the screeners he supervised. (Id. ¶ 3.) TSA considered lead screeners to the equivalent to screeners for staffing purposes, as lead screeners had to perform the functions of screeners. The two positions were subject to the same disciplinary policies and performance standards. However, lead screeners were paid more than screeners, had some additional responsibilities, and occasionally supervised screeners. (See Pl.'s Ex. 4, at 10-13, 108.)
Like all new employees, Lupescu began a twelve-month probationary period when he started work. (See Pl.'s Resp. to Def.'s Stmt. of Facts ¶ 1.) The same general disciplinary policy applied to all employees, including supervisors and managers. (See Pl.'s Ex. 9, at 67.) But TSA policy had certain provisions that applied only to probationary employees that specifically provided that "An employee may be terminated... at any time during the probationary period," provided "a supervisor determines that an employee's performance or conduct is deficient and the problem cannot be corrected...." (Def.'s Ex. 3 ¶ 5(g).)
As a lead screener, Lupescu, who is white, reported to supervisory transportation security screeners ("supervisors"), including Jerrold Rucker, Jamie Westmoreland, Brandi Rolark, and Dionicia Chandler, all of whom are African-American. (Pl.'s Resp. to Def.'s Stmt. of Facts ¶ 4; Def.'s Resp. to Pl.'s Stmt. of Add'l Facts ¶ 22.) Supervisors then reported to screening managers ("managers") who included Kevin Laurent, who is African-American, and Don DeFranza, who is white. (Def.'s Resp. to Pl.'s Stmt. of Add'l Facts ¶ 22; see also Pl.'s Ex. 1, at 15-16.) At relevant times, managers reported to Arthur Bell, the Assistant Federal Security Director for Screening, who is white and who in turn reported to the Federal Security Director, Jeanne Clark, whose race the parties have not indicated. (See Pl.'s Resp. to Def.'s Stmt. of Facts ¶ 4.)
D.Lupescu's Performance and Discipline
TSA does not consider the records that Lupescu received to be disciplinary actions, but instead issues them for minor rules infractions. (See Pl.'s Ex. 4, at 50:21-51:4; see also Pl.'s Ex. 9, at 109:13-20.) Lupescu's employment file contains six records of conduct, although he did not receive one such record. (See Pl.'s Resp. to Def.'s Stmt. of Facts ¶¶ 5-10, 37, 38.) Lupescu was also counseled--an informal reprimand not amounting to a disciplinary action--at least one additional time, in February 2003, for an incident for which there are several written statements, but no more formal record. (See id. ¶ 11.) TSA did not take any formal disciplinary actions against Lupescu before February 19, 2003, when he was placed on administrative leave, then eventually terminated. (See Pl.'s Resp. to Def.'s Stmt. of Add'l Facts ¶ 24.)
Given the inadmissibility at this point of the records of conduct for the truth of the matters stated therein, the court is left to piece together Lupescu's performance and discipline from other evidence. The government has primarily relied on those inadmissible records of conduct, meaning the remaining evidence was largely produced by Lupescu. In many instances, Lupescu agrees with--and the record supports--some version of the events described in the records of conduct.
On October 2, 2002, Lupescu touched a screener on the screener's back without that screener's consent; Lupescu testified that he touched the screener to avoid a collision. (See Def.'s Ex. 2, at 91.) One month later, Lupescu accused a TSA supervisor of stealing a radio from another airport employee, and the evidence suggests that the supervisor did in fact take the radio. (See Pl.'s Ex. 2, at 105.) On approximately November 28, 2002, an incident occurred involving a confrontation between Lupescu and a passenger that then escalated, leading to a manager's involvement. (See id., at 94-95.) Each of these incidents resulted in a record regarding Lupescu's conduct.
Despite these records of conduct, managers DeFranza and Laurent signed an Employee Performance Assessment for Lupescu dated December 9, 2002, that stated that Lupescu "met or exceeded the standard for satisfactory performance." (See Pl.'s Ex. 12.) The form contains several typed "Individual Goal(s);" it is unclear whether the managers' signatures indicated that Lupescu was meeting these goals, and the form has no further comments, positive or negative, from the managers regarding Lupescu. (See id.) Laurent and Bell each told Lupescu that he was doing a good job. (Def.'s Resp. to Pl.'s Stmt. of Add'l Facts ¶¶ 33, 34.)
Soon, though, Lupescu and his TSA superiors were at odds.*fn4 On January 9, 2003, Lupescu held a pocket knife for a man escorting his minor daughter to a gate for her flight; Lupescu was issued a record of conduct for the incident, but denies that he knew it was against TSA policy to hold prohibited items for persons escorting passengers to their gates, and the evidence is equivocal as to when TSA changed its policy to prohibit such conduct. (See Def.'s Resp. to Pl.'s Stmt. of Add'l Facts ¶ 38.) On February 16, 2003, Lupescu received a record of conduct from a supervisor for an incident that allegedly occurred the day before, but which Lupescu denies and of which there is no admissible evidence. (See id. ¶ 10.) Lupescu referred to the record of conduct as "bullshit" and refused to sign it. (See id.)
On February 15, 2003, the same day as the previous alleged incident, Lupescu was involved in a separate incident involving a TSA employee named Theresa Sims. According to Lupescu, the employee passed through a detector, which went off, causing Sims to become confrontational and make a scene. (See id. ¶ 41.) Sims stated under oath that she did not set off the detector but that Lupescu made her go through secondary screening anyway; Lupescu told Sims that "this is what [she] got for talking so much." (Def.'s Ex. 25, at 3.) Lupescu received a record of conduct for the incident, and cursed when he received the counseling. (Def.'s Resp. to Pl.'s Stmt. of Facts ¶ 42.)
On February 19, 2003, Arthur Bell met with Lupescu then placed him on administrative leave. (Id. ¶ 45.) The next day, Bell began termination proceedings for Lupescu. (Id.) Bell made the relevant decisions in terminating Lupescu, although Kevin Laurent, the manager two levels above Lupescu, eventually signed forms that recommended Lupescu's termination and then terminated Lupescu. (Pl.'s Ex. 9, at 35-36, 132-36; see also Pl.'s Stmt. of Add'l Facts ¶¶ 45, 46; Pl.'s Ex. 4, at 20-24.) On April 3, 2003, TSA terminated Lupescu. (Def.'s Ex. 14.)
E. Lupescu's Report of Harassment
Lupescu asserts that, several times before his termination, he complained of harassment and discrimination within TSA. On December 20, 2002, Lupescu spoke with Bell about sexual harassment and discrimination. In his deposition, Lupescu described the conversation as follows:
Here was another instance of discrimination, retaliation.
When I had gone to Art Bell about Kevin Laurent -- I believe the first time I talked to him was on the 20th of December....
It was kind of brief. I had talked to him about the sexual harassment, discrimination, about the morale, basically how things were being run which was not as policy should be, the way that they taught us it should be.
Again Art Bell was very busy, and we just talked. We talked just for a couple of minutes and again he said he would get back to me. And the next time I talked to him was I believe February 19. (Pl.'s Ex. 2, at 135-36, 140-41.) Lupescu testified that he also spoke on December 20, 2002 to Laurent about harassment by ...