The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
Tuesday, 08 January, 2013 09:43:30 AM Clerk, U.S. District Court, ILCD
Now before the Court is the Defendant's Motion for Summary Judgment (#43). The motion is fully briefed and I have carefully considered the arguments and evidence presented by the parties. As explained herein, the motion is granted.
I SUMMARY JUDGMENT GENERALLY
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Electric Industrial Co., Ltd. v Zenith Radio Corp., 475 US 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v Intermet Wagner Inc., 233 F3d 1014, 1016 (7th Cir 2000); Cox v Acme Health Services, 55 F3d 1304, 1308 (7th Cir 1995).
In ruling on a summary judgment motion, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v Liberty Lobby, Inc., 477 US 242 (1986). The court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. Waldridge v American Hoechst Corp., 24 F3d 918, 922 (7th Cir 1994). The court has one task and one task only: to decide based on the evidence of record, whether there is any material dispute of fact that requires a trial.
The court is to examine all admissible facts, viewing the entirety of the record and accepting all facts and drawing all reasonable inferences in favor of the non-movant, Erdman v City of Fort Atkinson, 84 F3d 960, 961 (7th Cir 1996); Vukadinovich v Board of School Trustees, 978 F2d 403, 408 (7th Cir 1992), cert. denied, 510 US 844 (1993); Lohorn v Michal, 913 F2d 327, 331 (7th Cir 1990); DeValk Lincoln-Mercury, Inc. v Ford Motor Co., 811 F2d 326, 329 (7th Cir 1987); Bartman v Allis Chalmers Corp., 799 F2d 311, 312 (7th Cir 1986), cert. denied, 479 US 1092 (1987), and construing any doubts against the moving party. Adickes v S.H. Kress & Co., 398 US 144 (1970); Trotter v Anderson, 417 F2d 1191 (7th Cir 1969); Haefling v United Parcel Services, Inc., 169 F3d 494, 497 (7th Cir 1999).
In considering a motion for summary judgment, however, there is one occasion when the court is not obligated to accept as true the non-movant's version of facts: "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v Harris, 550 US 372, 380 (2007).
Neither the moving party nor the responding party may simply rest on allegations; those allegations must be supported by significant probative evidence. First National Bank of Arizona v Cities Services Co., 391 US 253, 290 (1968). See also Matsushita Electric Industrial Co. v Zenith Radio Corp., 475 US 574, 586 (1986)(when the moving party has met its burden, non-moving party must do more than show some "metaphysical doubt " as to material facts). Instead, the parties must identify the evidence that will facilitate the court's assessment. Waldridge, 24 F3d at 922. Thus, as FRCP 56(e) makes clear, a party opposing summary judgment may not rely on the allegations of the complaint. Rather:
[T]he adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
See, Celotex Corp. v Catrett, 477 US 317, 323 (1986). See also, Local Rule CDIL 7.1(D).
A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 US at 250.
If the undisputed facts indicate that no reasonable jury could find for the party opposing the motion, then summary judgment must be granted. Hedberg v Indiana Bell Telephone Co., 47 F3d 928, 931 (7th Cir 1995), citing Anderson, 477 US at 248. If the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party and on which that party will bear the burden of proof at trial, then summary judgment is proper. Celotex, 477 US at 322; Waldridge, 24 F3d at 920.
As the Seventh Circuit has explained, "[D]istrict courts are not obliged in our adversary system to scour the record looking for factual disputes and may adopt local rules reasonably designed to streamline the resolution of summary judgment motions." Herman v City of Chicago, 870 F2d 400, 404 (7th Cir 1989). See also, Bell, Boyd & Lloyd v Tapy, 896 F2d 1101, 1103-04 (7th Cir 1990); L.S. Heath & Son, Inc. v AT & T Information Systems, Inc., 9 F3d 561, 567 (7th Cir 1993). The Local Rules of this Court specify the form, content and timing for all motions for summary judgment and responses and replies thereto. See, Local Rule CDIL 7.1(D).
Under Title VII it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 USC § 2000e-2. Title VII prohibits only discrimination based on protected status; it does not prohibit discrimination based on personality conflicts or other non-protected bases. See, for example, Jajeh v County of Cook, 678 F3d 560, 569 (7th Cir 2012), citing Oncale v Sundowner Offshore Services, Inc., 523 US 75, 80 (1998).
In order to survive a motion for summary judgment in a disparate treatment claim, a plaintiff must produce some evidence that (1) intentional discrimination (2) was more likely than not (3) the motivation (4) behind the challenged employment decision. St. Mary's Honor Center v Hicks, 509 US 502 (1993).
A plaintiff may prove disparate treatment under Title VII by using either the direct method or the indirect method of proof. Rhodes v Illinois Department of Transportation, 359 F3d 498, 504 (7th Cir 2004). The direct method of proof permits a plaintiff to show - by either direct or circumstantial evidence - that his employer's decision to take an adverse job action against him was motivated by a prohibited purpose, such as race or national origin. Id.
If a plaintiff cannot prevail under the direct method of proof, he must proceed using the burden-shifting analytical framework articulated in McDonnell Douglas Corp. v Green, 411 US 792 (1973). See, Adams v Wal-Mart Stores Inc., 324 F3d 935 (7th Cir 2003). Under that framework, the plaintiff must first establish a prima facie case of discrimination, which creates a rebuttable presumption of discrimination. The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment action. Upon articulation of such a reason, the presumption of discrimination vanishes, and the plaintiff must prove that the stated reason was merely pretext for discrimination. See, for example, Texas Department of Community Affairs v Burdine, 450 US 248, 253-56 (1981). Actually, at this third stage, the plaintiff's burden under this shifting burden analysis "merges with the ultimate burden of persuading the court that he has been the victim of intentional discrimination." Id. at 256. In other words, plaintiff's burden returns the plaintiff to his original position, namely the position of proving intentional discrimination. Hicks, 509 US at 510; Nawrot v CPC International, 277 F3d 896, 905 (7th Cir 2002).
A prima facie case of discrimination requires evidence that (1) plaintiff was a member of the protected class; (2) plaintiff was qualified for the job in question or was meeting the employer's legitimate performance expectations; (3) plaintiff suffered an adverse employment action; and (4) the employer treated similarly situated persons not in a protected class more favorably. Bragg v Navistar International Transportation Corp., 164 F3d 373, 376 (7th Cir 1998).
There is no dispute that Plaintiff is a member of a protected class. He is Nigerian and raises issues of disparate treatment on the basis of both race and national origin.
One element of the prima facie case is that the employee was satisfying the employer's legitimate performance expectations up until the time of his termination. Jones v Union Pacific Railroad Co., 302 F3d 735,741 (7th Cir 2002). This includes adherence to employer's rules and regulations. Id.; cf. Lim v Trustees of Indiana University, 297 F3d 575, 581 (7th Cir 2002) (plaintiff failed to establish that she was meeting university's legitimate requirements regarding research and publishing); Salvadori v Franklin School District, 293 F3d 989, 996 (7th Cir 2002) (fact that plaintiff had received satisfactory performance evaluations for several years did not satisfy this requirement in light of later, "less glowing" evaluations and failure to comply with performance improvement plan).
Not everything that makes an employee unhappy is actionable under Title VII. Dass v Chicago Board of Education, 675 F3d 1060, 1069 (7th Cir 2012); O'Neal v City of Chicago, 392 F3d 909, 911 (7th Cir 2004); Drake v Minnesota Mining and MFG Co., 134 F3d 878, 885 (7th Cir 1998). To rise to the level of "adverse employment action," the plaintiff must show more than an inconvenience or alteration of job responsibilities. Rhodes v Illinois Department of Transportation, 359 F3d 498, 504 (7th Cir 2004); Oest v Illinois Department of Corrections, 240 F3d 605, 613 (7th Cir 2001). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Crady v Liberty National Bank & Trust Co., 993 F2d 132, 136 (7th Cir 1993); See also, Cheek v Peabody Coal Co., 97 F3d 200, 204 (7th Cir 1996); Herrnreiter v Chicago Housing Authority, 315 F3d 742, 744-45 (7th Cir 2002); Lewis v Chicago, 496 F3d 645 (7th Cir 2007).
To show the final element of the prima facie case, namely that similarly situated persons not in a protected class were treated more favorably, a plaintiff must address such factors as performance, qualifications and conduct, in addition to the identity of supervisors, the standards that govern job performance, and the similarity or differences in the conduct of these other employees. Radue v Kimberly Clark Corp., 219 F3d 612, 617-18 (7th Cir 2000). The Seventh Circuit has also made clear that there must be a balance between the employee's and the employer's evaluations of these comparator employees. The similarities and differences must be "sufficiently comparable" in "all material respects. " Crawford v Indiana Harbor Co., 461 F3d 844, 846 (7th Cir 2006). "[P]laintiff should have to show only that the members of the comparison group are sufficiently comparable to [him] to suggest that  he was singled out for worse treatment." Goodwin v Board of Trustees of University of Illinois, 442 F3d 611, 619 (7th Cir 2006); Ezell v Potter, 400 F3d 1041, 1049-50 (7th Cir 2005). Otherwise, said the Court of appeals, plaintiffs will be in a box: if they pick just members of the comparison group who are comparable in every respect, they will be accused of cherry-picking; but if they look for a representative sample, they will unavoidably include some who were not comparable in every respect, but merely broadly comparable. Crawford, 461 F3d at 846.
Once a prima facie case is made out, the burden of production shifts to the employer, who must articulate a lawful reason for the employment action. Lawful means "facially legitimate", see McDonnell Douglas, 411 US at 804, quoted in Zaccagnini v Chas. Levy Circulating Co., 338 F3d 672, 676 (7th Cir 2003).
Once such a reason has been articulated, the burden shifts back to the plaintiff, who must show evidence of pretext. Pretext is more than a mistake or a decision based on erroneous facts; the reason must be shown to be a lie or a phony reason, or it must completely unsupported by facts. Adreani v First Colonial Bankshares Corp., 154 F3d 389, 395 (7th Cir 1998). Russell v Acme Evans Co., 51 F3d 64, 68 (7th Cir 1995); Jordan v Summers, 205 F3d 337, 343 (7th Cir 2000). To meet this burden, plaintiff must produce "significantly probative admissible evidence" from which it could be inferred that the employer's reason was false and that the actual reason was discriminatory. Jones v Union Pacific Railroad Co., 302 F3d 735 (7th Cir 2002); King v Preferred Technical Group, 166 F3d 887,892-93 (7th Cir 1999).
If the employer believed certain facts and believed that its employment action was proper in light of those facts, it matters not whether that version of the facts was correct. Id. The Court is not to sit in review of the action as some sort of "super-personnel department" but rather only reviews the actions of the employer to ascertain whether the actions violated Title VII. Stewart v Henderson, 207 F3d 374, 378 (7th Cir 2000); Nawrot v CPC International, 277 F3d 896 (7th Cir 2002); EEOC v Armstrong World Industries, 185 F. Supp. 2d 932, 937 (CD Ill 2002).
At the summary judgment stage, it is important to remember that Plaintiff need not prove her case. She must, however, introduce evidence of facts that support her claims, and these facts need to be more concrete than her impressions or feelings. "Facts, not an employee's perception and feelings, are required to support a discrimination claim." Uhl v Zalk Josephs Fabricators, Inc., 121 F3d 1133, 1137 (7th Cir 1997).
Title VII also prohibits retaliation for exercising rights under the statute. Title VII's retaliation provision forbids any materially adverse action that would dissuade a reasonable employee from making a charge of discrimination even if the action does not affect the terms or conditions of employment. See, Burlington Northern & Santa Fe Railway v White, 548 US 53, 67--68 (2006); Whittaker v Northern Illinois University, 424 F3d 640, 648 (7th Cir 2005) (explaining that the range of actionable adverse actions for retaliation claims under § 2000e--3 is broader than for discrimination claims under § 2000e--2); Cain v Locke , Case No. 10-2688, 2012 WL 1850928, *5, May 22, 2012(7th Cir).
As is true with disparate treatment claims, retaliation claims can be proven using either the direct or indirect methods of proof. Using the direct method to overcome summary judgment requires Plaintiff to show that (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) the protected activity is causally related to the adverse employment action. Arizanovska v Wal-Mart Stores, Inc., 682 F3d 698, 703 (7th Cir 2012). To establish the third element-i.e., a causal relation-she must show that the protected activity - such as filing an EEOC charge - was a "substantial motivating factor" in the employer's decision to take an adverse employment action. Id. at 704.
Under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."
As is true in a Title VII case, in an age discrimination case, a plaintiff may show discrimination under either the direct or indirect methods of proof, Brown v Illinois Department Natural Resources, 499 F3d 675, 681 (7th Cir 2007); Luks v Baxter Healthcare Corp., 467 F3d 1049 (7th Cir 2006).
To establish a prima facie case of age discrimination under the indirect method, a plaintiff must prove that (1) he is 40 or older; (2) his performance met the company's legitimate expectations; (3) despite his performance he was subject to an adverse employment action; and
(4) the company treated similarly situated employees under 40 more favorably. Martino v MCI Communications Services, Inc., 574 F3d 447 (7th Cir 2009), citing Faas v Sears, Roebuck & Co., 532 F3d 633, 641 (7th Cir 2008). If plaintiff satisfies these criteria, the company may provide a legitimate, nondiscriminatory reason for the termination. Id. at 641-42. Assuming the company offers as much, plaintiff may challenge the stated reason as a pretext for discrimination. Id. at 642. Again, however, the ultimate burden to prove intentional discrimination always remains with plaintiff. Greene v Potter, 557 F3d 765, 769 (7th Cir 2009).
Even when an employer has proffered what appears to be a legitimate, nondiscriminatory explanation for its conduct in an age discrimination claim, summary judgment will not be appropriate if the aggrieved employee produces evidence from which a jury reasonably could find that the stated explanation is false and that the real reason was discriminatory. Duncan v Fleetwood, 518 F3d 486 (7th Cir 2008).
Before beginning a recital of the facts in this case, several comments are necessary about Plaintiff's response to this motion. First, the Court is aware that he is proceeding pro se, and some latitude is given for that reason. But there are limits to that latitude, and in several significant ways, Plaintiff has stepped beyond those limits.
First, the Federal Rules of Civil Procedure require that opposition to facts asserted in summary judgment motions be supported by citation to "particular parts of materials in the record." FRCP 56(c)(1)(A). Rule 45(c)(3) states that the Court need only consider materials that are cited (although the Court is not prohibited from considering other materials). Similarly, the Rules of this Court require: "Each claim of disputed fact must be supported by evidentiary documentation referenced by specific page." CDIL Local Rule 7.1(D)(2)(b)(2). Copies of both of these Rules were sent to Plaintiff when the summary judgment was filed (See Doc. #44). Much of Plaintiff's response contains no citation to the record; it simply contains his argument. To the extent that the Court would have been obligated to scour the record looking for support where none was tendered by the Plaintiff, the Court has not done so.
Second, the Rules require that facts asserted by a party be capable of presentation in a form that would be admissible in evidence, and that affidavits and declarations be based on personal knowledge, based on admissible facts, from an affiant or declarant competent to testify about the matters contained therein. FRCP 56(c)(2), (4). Many of the documents Plaintiff has presented contain his own comments and handwriting on them, and he relies on these comments, despite the lack of personal knowledge or admissible evidence cited to support his comments. In fact, many of his comments are simply his characterizations of evidence, which is argument, not evidence. Many of the documents appear to be his own compilations of evidence that he has gleaned from various original sources, but his only identification of those original sources is "Defendant's own documents" or something equally vague. These summaries are not admissible without evidentiary support.
Many of the facts Plaintiff designates as "disputed" are not truly "disputed", because Plaintiff simply states that he disagrees with them, without providing any evidentiary support for his disagreement. Similarly, Plaintiff asserts additional and purportedly "undisputed" facts which contain no citation whatsoever to any evidence. Specifically, his response to the following paragraphs of Defendant's statement of fact indicates that he disputes them, but nothing in the record is cited to support that position (See 1, 6, 11, 13, 18, 20, 21, 22, 34, 37, 38, 39). Of the 62 additional material facts he asserts, 37 of them contain no citation to the record at all (See, 1, 2, 3, 5, 6, 7, 8, 9, 11, 15, 17-35, 43, 44, 50, 53, 54, 55, 56, 61).
The failure to comply with the Federal and Local Rules carries with it ramifications. The Federal Rule explains that failure to properly support or address a fact allows the Court to, inter alia, consider the fact undisputed, or grant summary judgment if the motion satisfies the legal requirements of Rule 56. See, Salvadori v. Franklin Sch. Dist., 293 F3d 989, 992 (7th Cir.2002); Hedrich v. Bd. of Regents of Univ. of Wis. Sys., 274 F3d 1174, 1178 (7th Cir.2001); Waldridge v. American Hoechst Corp., 24 F3d 918, 922 (7th Cir.1994); Ziliak v. AstraZeneca LP, 324 F3d 518, 520 (7th Cir.2003). The Seventh Circuit has repeatedly approved strict enforcement of local rules, holding that obligations thereunder are not mere formalities See, Waldridge v American Hoechst Corp., 24 F3d 918, 922 (7th Cir 1994) (collecting cases); Delapaz v Richardson, 634 F3d 895 (7th Cir 2011).
That said, the following statement of facts is taken largely from the Defendant's Statement of Undisputed Material Facts, with additions where appropriate from Plaintiff's responsive Statement.
In 1990, Olajide Giwa was hired by the City of Peoria as an Urban Planner in the City's Planning and Growth Management Department ("the Department"). His pre-hire interviews were conducted by Wayne Anthony, the Director of the Department, and the Assistant Director, Patricia Landes. Both of them participated in the decision to hire Giwa. Landes was impressed by Giwa's preparedness, and she recommended his hire.
Giwa is an African-American born in Nigeria in 1956. Landes is Caucasian and about 14 years older than Giwa. On a very few occasions, Giwa and Landes socialized outside the workplace; their relationship was primarily professional.
In 2000, ten years after his hire, Giwa was promoted from Urban Planner to Senior Urban Planner. There are technical requirements for holding the higher position - a master's degree and four to five years' experience as an urban planner is required - but the primary difference is that a Senior Urban Planner works with minimal supervision on larger and more complex projects and produces a higher quality of product.
Between 2000 and 2003, Giwa was evaluated annually by Wayne Anthony. The evaluation forms used by the City require ratings in 7 general areas of job performance. Each one is rated as "Above Standards", "Meets Standards", or "Below Standards". For each rating, there is also a Comment/Rationale section in which the evaluator justifies the rating that was given. At the end, the evaluator gives an "Overall" rating, using the same three standards. Wayne Anthony's evaluations of Giwa for these years rated Giwa "Meets Standards" in all 7 areas as well as Overall. In his comments, Anthony noted that Giwa possessed "general knowledge" of departmental duties outside his area of expertise and a "high degree of initiative" within his area of expertise. No details or further explanation was given.
Until 2003, Urban and Senior Urban Planners usually were assigned to a particular task or specialty area for years. Giwa's exclusive responsibility until 2003 centered on computer-generated mapping (GIS) and other projects related to census data collection. During 2003, however, the City was forced by budget constraints to reduce its urban planning staff. Two urban planner positions as well as some support staff were lost. Thereafter, all Planners in the Department were ...