The opinion of the court was delivered by: Judge Feinerman
MEMORANDUM OPINION AND ORDER
Sedgwick Beard, a former salesperson at the Don McCue Chevrolet car dealership, brought this suit against the dealership and two of its managers, Timothy McCue and Mark Neumann. Beard, an African-American with injuries that make walking difficult and painful, alleges that Defendants discriminated against him on the basis of his race in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and on the basis of his disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); subjected him to a hostile work environment in violation of Title VII and § 1981; and failed to make reasonable accommodations for his disability in violation of the ADA. Defendants have moved for summary judgment on all claims. The motion is granted.
In brief, Beard's claims fail for the following reasons. He has not presented evidence that he was actually terminated, or suffered some other materially adverse employment action, as required for his race and disability discrimination claims. He has failed to point to evidence of either severe or pervasive harassment on the basis of his race, as required to prevail on his hostile work environment claim. And with respect to his ADA failure to accommodate claim, Beard failed to exhaust his administrative remedies by bringing that claim to the EEOC prior to filing suit.
The facts are stated as favorably to Beard as the record and Local Rule 56.1 allow. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment, the court must assume the truth of those facts but does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir. 2012).
Beard was employed as a sales consultant at Don McCue Chevrolet ("McCue Chevrolet"), a car dealership in St. Charles, Illinois, from 1990 through July 16, 2008. Doc. 86 at ¶¶ 1-2. Timothy McCue ("McCue") is the general manager and president of McCue Chevrolet; he took over from his father, Don McCue, in 1996. Id. at ¶ 3; Doc. 92 at ¶ 2. Mark Neumann was hired to serve as the dealership's general sales manager on January 7, 2008. Doc. 86 at ¶ 4. Both McCue and Neumann had supervisory authority over Beard. Id. at ¶ 5.
Beard was successful as a car salesperson. Doc. 92 at ¶ 13. McCue acknowledged that Beard was "a good salesperson" and had consistently been in the top third of salespersons at the dealership; Neumann agreed that Beard was "a good salesperson" and called him "a hard worker"; and a co-worker of Beard's, a man named Howland, said that plaques at the dealership showed that "almost consistently every month [Beard] was salesman of the month." Doc. 86-19 at 15; Doc. 86-16 at 5-7; Doc. 86-10 at 38.
But Beard felt that Defendants treated him less favorably than employees who were not African-American or disabled. Beard was not promoted to manager despite his high sales; he admits that he did not seek a promotion, but as he understood the practice at McCue Chevrolet, successful salespersons were promoted without having to apply. Doc. 86 at ¶ 53; Doc. 92 at ¶ 14. Salespersons were issued "demo" (demonstration) cars to drive; Beard claims he was consistently given demo cars that were not as nice as those issued to his co-workers, and shortly after Neumann started, Beard's new demo was taken from him and exchanged for a used one, with no reduction in the charge Beard was required to pay. Doc. 92 at ¶¶ 23-24; Doc. 86 at ¶ 10. In addition, Beard was required to "split" commissions with other salespersons under circumstances in which non-African-American salespersons were not required to split. Specifically, when Beard was dealing with one customer and had others waiting for him and willing to keep waiting until he was free, the manager would have other salespersons help the waiting customers and collect part of the commission; yet non-African-American salespersons in the same situation were permitted to keep their customers waiting until they were available, and thus were able to keep the whole commission on sales made to those customers. Id. at ¶ 28. Unlike his co-workers, Beard was not given a password to a General Motors website that allowed salespersons to "build" vehicles for customers. Id. at ¶ 17; Doc. 86-9 at ¶ 3. And the dealership did not pay for Beard's postage on mailings sent to current or prospective clients, though it did so for other salespersons. Doc. 92 at ¶ 16; Doc. 86-9 at ¶ 4; Doc. 86-15 at 45.
Throughout his time at McCue Chevrolet, Beard walked with a limp, the product of a childhood knee injury. Doc. 92 at ¶ 12. In 2002 or 2003, he began experiencing hip pain as well, and the combined pain in his knee and hip made walking difficult. Ibid. In 2003, Beard's doctor prescribed him pain medications and told him to limit his walking to minimize the pain. Id. at ¶ 19. Beard sought several accommodations from McCue Chevrolet to help him remain an effective employee while limiting the amount of walking he had to do: he asked to be allowed to use a golf cart to get around the car lot; he tried paying the dealership's porters with his own money to pull vehicles up to the dealership office's door for customers to test drive so that he would not have to walk out to the lot himself; he often parked in spaces reserved for customers, which were nearer to the office than the employees' spaces; and he prevailed upon Neumann's predecessor, a man named Pisano, to allow him to move his desk near the office's front door so he could more easily reach customers when they walked in. Id. at ¶¶ 21-22, 34-38. But McCue rejected the golf cart request, and he disapproved of Beard's use of the porters, telling one of them that he did not have to pull up cars for Beard, which led that porter to refuse to do so when McCue was at the dealership. Id. at ¶¶ 21, 35-36. And Beard sometimes was told to move his car from the customer parking spots, and when Neumann took over from Pisano, he and McCue moved Beard's desk so that it was third or fourth from the door, about 25 feet away, rather than closest to the door. Id. at ¶¶ 22, 37.
Neumann in particular was antagonistic towards Beard. One of their interactions had clear racial implications: Beard was at his desk dealing with customers when he received a call from Neumann, who asked why Beard was taking so long and whether he was ordering "watermelons and bananas." Id. at ¶ 31; Doc. 78-2 at 17-18. Beard left a message with McCue asking to discuss the incident, but McCue never responded. Doc. 92 at ¶ 31. In another racially charged incident, an unidentified person removed a photo of Beard's son, who is Caucasian, from Beard's desk and replaced it with a picture of African-American children; Beard does not know who made the switch, but his gut feeling is that Neumann either perpetrated or condoned it. Doc. 86-3 at 18; Doc. 92 at ¶ 26. Another African-American employee, named Jones, testified at his deposition that he perceived Neumann as treating employees differently and playing favorites based on race, though Jones did not give specific examples and also mentioned that Neumann was generally unpleasant to employees of all races. Doc. 92 at ¶ 30.
Neumann also mistreated Beard in ways that were not explicitly racial. He referred customers to other salespersons more often than to Beard, who believed that the different treatment was based on his race. Doc. 86 at ¶¶ 13-14; Doc. 86-3 at 30-32. Neumann also required Beard to come to his desk for meetings that could instead have been conducted by phone, despite Beard's difficulty walking. Doc. 92 at ¶ 27. Neumann berated Beard in front of customers in a way that Beard considered unprofessional; Beard never saw him treat other salespersons the same way. Id. at ¶ 29. And on the day before his alleged termination, Beard was passing Neumann in the hall when Neumann bumped him aggressively on his bad hip-Beard says it was like a hockey hip check-almost causing him to fall. Doc. 86-6 at 17; Doc. 98 at ¶ 44. Neumann did this despite knowing of Beard's injury. Doc. 98 at ¶ 44.
On July 15, 2008, Beard left work two hours before the scheduled end of his shift, having received permission from the desk manager to do so and having begun the workday two hours early to make up the time. Id. at ¶¶ 45-46. Shortly thereafter, Neumann called Beard to tell him that he was fired and needed to clean out his desk; when Beard asked why, Neumann replied, "you left early." Id. at ¶ 47. Beard tried to explain that he had received permission to leave early, but Neumann did not accept the explanation. Doc. 86 at ¶¶ 5960; Doc. 98 at ¶ 47. Beard arrived the next day and, believing he had been terminated, prepared to clean out his desk. Doc. 98 at ¶ 48. That afternoon, at a meeting between Neumann and Beard, Neumann told Beard to consider whether he wanted to keep working at McCue Chevrolet and said that if he did, he should come back for his next scheduled shift the following Monday; Neumann did not repeat his statement of the previous day that Beard was being fired. Doc. 86 at ¶¶ 62, 64-65. In fact, as Beard recalled the meeting: "He [Neumann] had said to me that-and he made the statement, and I recall it vividly, that-and this was directly from Tim [McCue]'s desk that this-I was not being terminated." Doc. 86-8 at 10. After the meeting, Neumann told Beard to hand over the keys to his demo car. Doc. 98 at ¶ 51. Apparently based on his understanding that the dealership revoked employees' demo keys only when they were being terminated, had been ticketed for driving under the influence, or had their driver's licenses revoked-and despite Neumann's statement that Beard was not being terminated and that Beard should decide whether he wanted to keep working for the dealership and should come back on Monday if he did-Beard concluded that he had been terminated and never returned to work. Doc. 98 at 51-52; Doc. 86 at ¶ 68.
About a month later, Beard filed a charge of discrimination against McCue Chevrolet with the EEOC, complaining of discrimination, harassment, and retaliation on the basis of his race and discrimination on the basis of his disability. Doc. 1 at 13. The EEOC responded with a right-to-sue letter, id. at 14, and Beard brought this lawsuit.
I. Statute of Limitations
Defendants contend that some of the alleged events set forth above occurred outside the applicable statutes of limitations, which are 300 days before Beard filed his EEOC charge for the Title VII and ADA claims and four years before he filed this lawsuit for the § 1981 claims. See Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004) (Title VII and ADA); Dandy v. UPS, Inc., 388 F.3d 263, 269 (7th Cir. 2004) (§ 1981). Although some of the alleged misconduct is not independently actionable, none is irrelevant, for time-barred prior acts can serve as "background evidence in support of a timely claim" of a discrete violation, Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), and can help to establish a "continuing violation" in the form of a hostile work environment, id. at 116-17. At any rate, because all of Beard's claims fail for other reasons, the limitations issue is beside the point.
II. Race and Disability ...