Opinion
Cause No. 97 C 7075
January 25, 2001
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant's Motion for Summary Judgment. The parties have fully briefed the issues and the Court heard oral argument. Having considered all relevant evidence, the Court now GRANTS the Defendant's Motion.
JURISDICTION
Plaintiff brings a claim for alleged violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Jurisdiction is proper pursuant to 28 U.S.C. § 1331.
BACKGROUND
The following facts are taken from Defendant's Local Rule 56.1(a) Statement [DKT #47], Plaintiff Response and Statement of Additional Facts, which also included Plaintiff's Affidavit [DKT #52], and Defendant's Response to Plaintiff's Statement of Additional Facts [DKT #57]. Except where noted, the facts are undisputed, although the parties dispute the inferences to be drawn from those facts.
Plaintiff Chester Baker ("Baker") began working for defendant Illinois Department of Children and Family Services ("DCFS") in August 1984, as a Social Worker II. In 1985, Baker transferred to the Rockford office of DCFS. In 1986, his job title was changed to Child Welfare Specialist II, however, there was no change in his job duties. He served in this position for approximately five years. In early April, 1990 he was promoted to a temporary Supervisor in the Family Reunification Program. In that position he supervised a team of four or five Child Welfare Specialists. In October, 1992, Baker transferred to a DCFS adoption unit and became an Adoption Specialist/Child Welfare Specialist. He was promoted to a Child Welfare Specialist III in June, 1994. Baker received annual performance ratings by his supervisor. Each of Baker's periodic performance evaluations from February 1992 though February 1994 indicated that he needed improvement in various areas. His performance evaluation for June 1995 to June 1996 indicated that he had not met 20 of the 36 objectives set for him. He was discharged from his job on September 1, 1996. Baker claims his discharge violates Title VII, and that he was discharged because his race, which is black.
The circumstances leading to Baker's termination began shortly before midnight on May 22, 1996 when the DCFS hotline received a telephone call reporting potential abuse of a teenage girl. DCFS maintains an after-office hours emergency response system known as Emergency Protective Services ("EPS"). The EPS program is staffed on a rotating basis by child protection investigators and caseworkers whose duties include initiating investigations of child abuse and neglect allegations, conducting assessments of the risks faced by a child, and, where the child cannot be returned to his or her home, making placement of children for whom DCFS has legal responsibility.
The hotline schedule for May 22, 1996 indicated that Baker was on duty that evening. Baker was called at home and advised of the hotline report. He informed the hotline that he was not on duty. Several minutes later the hotline called back with Baker's supervisor also on the line. The supervisor informed Baker that he was, in fact, responsible for emergency duty that evening. Baker was instructed that the teenager was at the police station. Baker went to the station and met with the officer who had picked up the minor ("N.W.") from a neighbor's home. Baker did not pick up his EPS materials from his office before proceeding to the police station. He knew that the police had taken protective custody of N.W., and that he might need to find a placement for her. When he met with N.W., Baker observed her to be "incoherent as it relates to time, place, person and incident." (Pl.'s Resp. to 56.1(a) Stmt. of Facts ¶ 56.) There was evidence of possible abuse. Baker also noted that N.W. might be "mentally impaired." (Id. ¶ 57.) Both the police and Baker attempted to contact N.W.'s family. They were unsuccessful. After discussing the situation with the police, Baker brought N.W. back to the neighbor's house from which she had been picked up by the police. Baker assumed that an investigator would follow-up later that morning and determine what actions were needed. None of the members of the neighbor's family were licensed foster parents, nor were they relatives of N.W. Baker did not contact a supervisor regarding his decision to take N.W. back to the neighbor's home. He did not call for a background or Child Abuse and Neglect Tracking System ("CANTS") check on the persons in the neighbor's home. Baker admits that when he returned N.W. to the neighbor's home he did not know whether any member of that home had a prior history of child abuse or neglect or a prior history of criminal activity.
Baker was actually scheduled for duty that evening, but states that he had arranged for a co-worker to cover for him. The co-worker apparently was ill. Baker claims that he checked in with emergency services when he found out his co-worker was ill and that it was his understanding that the supervisor would cover the calls for the evening. (Pl.'s Aff. ¶ 5.)
A CANTS (Child Abuse and Neglect Tracking System) check is a computerized background check run by the State Central Registry to determine whether the subject of the check has had any involvement with DCFS for child abuse or neglect. It operates on a 24 hour basis and can be run in a few minutes. All DCFS workers are provided with the telephone number to the State Central Registry.
When Baker went in to the office the following morning, May 23, 1996, he signed and dated the emergency log and indicated he had placed N.W. in the neighbor's home. He also completed a Child Endangerment Risk Assessment Protocol ("CERAP") form indicating that the minor was safe in her placement. (Ex. T, Bates 400-03.) He signed his name and placed his supervisor's name on that form.
Baker contends that he "merely wrote his supervisor's name in the space for supervisor" and was not attempting to actually "sign" her name. (Pl.'s Aff. ¶ 9.)
In late May, 1996, Baker's supervisor Katherine Robinson (who is African American) reported to Gayle Kane, Manager of Field Services for the DCFS Rockford office, that Baker had signed Robinson's name to a CERAP form without her knowledge or permission, Additionally, she reported that Baker placed a minor N.W. in an unlicensed home, failed to complete the required background checks prior to placing the minor in that home, and failed to contact a supervisor regarding the emergency situation and the decision to leave the minor at the neighbor's home. Kane reviewed copies of Baker's notes and materials, and Baker's prior history of discipline and performance evaluation. Kane then notified Baker that he was charged with: (1) failure to assure the safety of a child in violation of DCFS Policy Guide 96.4 and failure to place N.W. in a licensed/approved facility in violation of that Policy Guide and DCFS Rules and Procedures; (2) failure to contact a supervisor for a critical decision regarding placement of a child in violation of DCFS Rule/Procedure 305.30; (3) failure to obtain supervisor input and approval when completing a CERAP form in violation of DCFS procedure; and (4) falsification of records.
On June 14, 1996, Baker attended a pre-disciplinary meeting with his supervisor Robinson, Manager Kane and Baker's union representative, Sidella Hughes. At the meeting Baker was again advised of the charges and was provided copies of all the materials supporting them. Robinson also stated at the meeting that the neighbor with whom Baker had placed N.W. removed N.W. from Illinois without anyone's permission. On June 20, 1996, Baker submitted a written response to the charges. He responded that he had been unaware that he had emergency duty that night. He was unprepared and did not have his EPS materials with him because he was not aware he was on call. Finally, he did not intend to disguise or falsify his supervisor's signature.
After reviewing all the materials, speaking with involved employees and considering his tenure and experience, Manager Kane concluded: (a) that Baker had placed N.W. in an unlicensed non-relative home; (b) that Baker had made no effort to ensure the safety of N.W., a child who Baker indicated might be mentally disabled; and (c) that there was credible evidence to believe that Baker falsified his supervisor's signature on the CERAP form. Kane concluded that Baker was aware of DCFS rules and procedures and knowingly violated them, and that Baker had exhibited an extreme level of disregard for N.W.'s safety and had in fact risked her safety. (Kane Aff., Ex. O ¶¶ 39-40.) Kane recommended that Baker be suspended for thirty days and that discharge be considered. On August 2, 1996, the Illinois Department of Central Management Services discharged Baker for the reasons stated in the charges against him.
DCFS also filed a Motion to Strike Certain Portions of Plaintiff's Response to the Defendant's 56.1(a) Statement of Facts. [DKT #55]. In his Response, Baker avoids admitting or denying that Kane "concluded" or "believed" the reasons stated for her decision, and Baker answers that Kane could not have "reasonably" so believed or concluded. In other paragraphs of his Response, Baker denies the statement without stating the factual basis for the denial. For example, in ¶ 34, Baker denies that no information was known about the neighbor's home, and cites to his affidavit (without specifying a paragraph). Baker's affidavit provides no factual support for his denial. While DCFS is technically correct that Baker's responses are not appropriate, the Court denies DCFS' motion as moot because, even if those responses are permitted to stand, they do rot create an issue of fact to prevent summary judgment. A party cannot create a question of fact simply by denying the movant's allegations, but must set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e).
On August 27, 1996, the Union filed a priority Third Level Grievance on behalf of Baker. A hearing was held on September 8, 1996, which Baker attended with his union representative, Hughes. DCFS denied the grievance.
BAKER'S CLAIM OF RACIAL DISCRIMINATION
Baker asserts that his termination and the denial of his grievance were "because of his race." He initially claimed that four non-African American employees committed infractions similar to his but were not discharged. (Baker Dep. at 78-87.) However, in Baker's response to DCFS' motion for summary judgment and at oral argument, Baker's counsel conceded that there are only two white employees, Maury Harms and Joan Metheny, who Baker now claims made similar placements but were not discharged. (Pl.'s Resp. at 4.) Harms and Metheny are discussed below. Baker also asserts that DCFS had an ongoing policy of discrimination. As evidence, he claims that an assistant regional administrator told him he "would never get the position" as family reunification unit supervisor sometime between 1990 and 1992 (Baker Dep. at 24), and everyone knew the supervisor wanted to hire another person (who was white) for the position ( Id. at 25-26); that discrimination was modus operandi because there were African American female supervisors, but no African American male supervisors ( Id. at 29-33); and that a Union officer told him she believed there was discrimination ( Id. at 34). Baker also cites to the deposition testimony of DCFS worker Amanda Moren that during the time she was employed at the Rockford office, she heard numerous derogatory remarks about African Americans from other employees. (Pl.'s Stmt of Add'l Facts, ¶¶ 1-4.) Baker's only other evidence is his subjective belief which he based on the fact that he had been an affirmative action officer for three years and knew "how it operated" (Baker Dep. at 36-38, 100.)
Baker filed his claim of discrimination based on race against his former employer DCFS on October 9, 1997, alleging that DCFS violated Title VII when it recommended that he be suspended and that discharge be considered. DCFS seeks summary judgment and asserts that Baker cannot make a prima facie case of race discrimination and that it had a legitimate non-discriminatory reason for terminating his employment.
SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted "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). The Court applies this standard with added rigor in employment discrimination cases, in which intent and credibility are crucial issues. See, Crim v. Board of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998); Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 343 (7th Cir. 1996). Accordingly, pleadings, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination. Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995); Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994). Furthermore, the Court must "read the record in the light most favorable to the non-moving party," although it "is not required to draw unreasonable inferences from the evidence" St. Louis N. Joint Venture v. P L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir. 1997).
The Seventh Circuit has stressed that "there is no separate rule of civil procedure in employment discrimination cases;" rather, the "added rigor" language means only that "courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997).
The initial burden is on the moving party to demonstrate, "with or without supporting affidavits," the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56); Larimer v. Dayton Hudson Corp., 137 F.3d 497 (7th Cir. 1998). Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate `specific facts showing that there is a genuine [material] issue for trial.'" Celotex, 477 U.S. at 324. It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The nonmoving party cannot rest on its pleadings, Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir. 1994); Hughes v. Joliet Correctional Ctr., 931 F.2d 425, 428 (7th Cir. 1991), nor may that party rely upon conclusory allegations in affidavits. Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir. 1995).
A question of material fact is a question which will be outcome determinative of an issue in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Supreme Court has instructed that the facts material in a specific case shall be determined by the substantive law controlling the given case or issue. Id.
DISCUSSION
Title VII of the Civil Rights Act of 1964 provides:
It shall be an unlawful employment practice for an employer — to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin42 U.S.C. § 2000e-2(a). A plaintiff may meet his burden of proof under Title VII by offering either direct proof of discriminatory intent or by proving disparate treatment through the indirect, burden-shifting method outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Contreras v. Suncast Corp., ___ F.3d ___, 2001 WL 8434 (7th Cir. Jan 03, 2001). See also, Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1044 (7th Cir. 2000). Under either method, the plaintiff must produce sufficient evidence to allow a jury to infer that race was a motivating factor in the defendant's decision to take the adverse employment action. Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1350 (7th Cir. 1995).
1. Direct Evidence
Under the direct evidence approach, "this Circuit has . . . held that a combination of direct and circumstantial evidence, `none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff,' may allow a plaintiff to surpass the summary judgment hurdle." Hasham, 200 F.3d at 1044 (citations omitted). Plaintiff's direct evidence must demonstrate "the particular fact in question without reliance on inference or presumption." Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 443 (7th Cir. 1997) (quoting Plair v. E.J. Brach Sons, Inc., 105 F.3d 343 347 (7th Cir. 1997)). The evidence "must relate to the motivation of the decision maker responsible for the contested decision." Cheek v. Peabody Coal Co., 97 F.3d 200, 203 (7th Cir. 1996). However, it is not necessary to come forward with evidence that amounts to an "admission of guilt by the defendant." Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7th Cir. 1994). A plaintiff can build a so-called "direct evidence" case from a mosaic of evidence, such as suspicious timing, ambiguous oral or written statements, behavior toward or comments directed at other employees in the protected group, and so on, from which a reasonable inference of discriminatory intent might be drawn. Troupe, 20 F.3d at 736.
Troupe held that circumstantial evidence is admissible to provide a basis for drawing inference of intentional discrimination in the "direct evidence" analysis. 20 F.3d. at 736. In McCraven v. City of Chicago, 109 F. Supp.2d 935 (N.D.Ill. 2000), the court noted that the majority of Seventh Circuit opinions in Title VII cases have ruled that direct evidence may not rely on inference or presumption. At the same time, however, the Seventh Circuit reaffirmed that the definition of direct evidence incorporates some elements of the indirect burden-shifting method of proof. See, McCraven, 109 F. Supp. 2d at 941, n. 8 (citing Council 31, Am. Fed'n of State, County and Mun. Employees, AFL-CIO v. Doherty, 169 F.3d 1068, 1072 (7th Cir. 1999) and Huff v. UARCO, Inc., 122 F.3d 374, 380 (7th Cir. 1997) (citing Troupe, 20 F.3d 734, 736)). The McCraven court, therefore, concluded that Troupe remains good law, and therefore the court may consider circumstantial evidence under the direct evidence test.
What the plaintiff is actually producing is sufficient "circumstantial evidence" to provide a basis for drawing an inference of intentional discrimination. See, Troupe, 20 F.3d at 736. Accurso, 109 F. Supp.2d 953, discusses the difference between analyzing a case under the direct method and under the burden-shifting method.
Recently, in Accurso v. United Airlines, Inc., 109 F. Supp.2d 953 (N.D.Ill. 2000), the court found no direct evidence of discrimination. In that case, Accurso claimed her suspension and termination were based on "reverse discrimination." As "direct evidence" Accurso claimed that on the day of her suspension while escorting her out of the building her African American supervisor commented, "some people deserve my protection and some people don't cause as much trouble as you." 109 F. Supp.2d at 959. The court found that the statement was not "direct evidence" because "the trier of fact could not conclude that Accurso's suspension and ultimate termination were the result of any animus due to her race without adopting certain inferences and presumptions." Id. The court also found that the statement and its proximity in time to Accurso's suspension was not sufficient circumstantial evidence to support a discrimination claim. The court stated that regardless of whether or not the supervisor made the comment, Accurso put forth no evidence that the supervisor was the person who made the decision to suspend her or that any connection between her suspension and her race existed. Id. Therefore, because Accurso had no direct evidence, the court turned to the burden-shifting method.
Likewise, in Carson v. Armstrong World Indus., Inc., NO. 98 CV 4205, 1999 WL 1267708 (N.D.Ill. Nov. 30, 1999), the plaintiff relied upon several sporadic comments made during his twenty years of employment in order to show direct evidence of discriminatory intent. He alleged that sometime in 1992, a supervisor referred to another employee as a "nigger bitch" in plaintiff's presence. He further alleged that a different supervisor told some "nigger jokes" and referred to another employee as a "nigger" in the mid-1980's. The plaintiff also stated that another employee who occasionally had supervisory authority used the word "nigger" in the mid-1980's. Lastly, he alleged that he complained about these comments twice to a supervisor, but his concerns were ignored. The court found that the comments were too remote in time and circumstance to create a genuine dispute of discriminatory intent because none of the named supervisors had anything to do with plaintiff's discharge or prior discipline, and their comments occurred several years before plaintiff's discharge.
The comments cited by Baker are less probative of discriminatory intent related to his discharge than those quoted by the plaintiffs in Accurso or Carson. Furthermore, Baker has provided no evidence that any of the allegedly discriminatory comments were made by any person who had any role in the decision to terminate him. Thus, he has not provided direct evidence of discrimination.
2. Burden-Shifting
Unable to meet his burden under the direct method, Baker relies on the indirect or burden-shifting approach described in McDonnell Douglas, which requires a plaintiff initially to establish a prima facie case of racial discrimination. 411 U.S. 792; Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000). To establish a prima facie case under McDonnell Douglas, the plaintiff must demonstrate that (1) he belongs to a protected class; (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) his employer treated similarly situated employees outside of his protected class more favorably. Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000), reh'g denied; See Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999). If a plaintiff is able to make the prima facie showing, there is a presumption that the plaintiff was discriminated against, and the employer must come forward with a legitimate nondiscriminatory reason for the employment action. McDonnell Douglas, 411 U.S. at 802. At this stage, the employer need not prove that it was actually motivated by the proffered reason. Rather, an employer "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). Once the defendant has met this burden of production, the plaintiff must prove by a preponderance of the evidence that the reason offered by the defendant is merely a pretext for discrimination. Id. at 253. While the McDonnell Douglas approach is often called a "burden shifting" method of proof, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id.
There is no doubt that Baker is a member of a protected class and that he suffered an adverse employment action. The parties disagree as to the remaining two elements of the prima facie showing.
DCFS contends that Baker did not meet legitimate performance expectations because of the incident involving N.W. (Def.'s Mem. in Supp. at 4-5.) Unlike the plaintiff in Flores v. Preferred Technical Group, 182 F.3d 512 (7th Cir. 1999), Baker does not admit that he failed to meet his employer's reasonable expectations. Rather, Baker argues that his action with respect to N.W. was a mistake due to lack of training, and his performance could not therefore fail to meet DCFS' reasonable expectation. (Pl.'s Resp. to Mot. for Summ. J. at 1.) The Court finds that Baker has not created a genuine issue of material fact as to this point. The undisputed facts show that Baker was employed by DCFS for twelve years including seven years in which he had been assigned to the 24 hour on call EPS unit. (Pl.'s Resp. to Def.'s 56.1(a) Stmt of Facts, ¶¶ 3, 7.) During his employment, he held a supervisory position with DCFS. ( Id. ¶ 4.) Baker admits that DCFS has procedures for distribution of rules, procedures and policy guides and conducts training programs. ( Id. ¶¶ 12-13.) He admits that he attended an orientation course on EPS and responsibilities ( Id. ¶ 18), and a training and procedures course. ( Id. ¶ 19.) Baker's Response to Defendant's Rule 56.1 statement claims that he never received Division of Child Protection training ( Id. ¶ 17), however, his affidavit states only that he never received the "full" training appropriate for a Division of Child Protection worker. (Pl.'s Aff. ¶ 4.) In view of the undisputed facts, it was not an unreasonable for DCFS to expect Baker to know and use the appropriate procedures when on call for EPS. As DCFS points out, at the very least, if Baker felt he was in a situation for which he was not prepared, he should have contacted a supervisor, rather than put a child at risk. (Def.'s Mem. in Supp. at 6.)
As to the final part of a prima facie case, Baker claims that Maury Harms and Joan Metheny, two white DCFS employees, also placed children in unlicensed homes, but were not discharged. DCFS denies that Harms' and Metheny's conduct was similar to Baker's. To be "similarly situated," Baker must show that these employees: (1) held the same or similar employment positions; (2) had similar employment histories; and (3) engaged in similar misconduct giving rise to the employment action. Mora v. Chicago Tribune, 57 F. Supp.2d 626, 635 (N.D.Ill. 1999), aff'd 215 F.3d 1330 (7th Cir. 2000), cert. denied. In addition, Baker must establish that these employees are outside of his protected class, and that each one experienced more favorable treatment DCFS. Essex v. U.P.S., Inc., 111 F.3d 1304, 1311 (7th Cir. 1997). Finally, the decision-makers should be identical for comparing similarly-situated employees at the prima facie case stage. Thompson v. John J. Madden Mental Health Ctr, No 99 C 2558, 2000 WL 1780348, *3 (N.D.Ill. 2000), citing Timms v. Frank, 953 F.2d 281, 287 (7th Cir. 1992). "When separate supervisors treat employees of dissimilar races differently, the specter of discrimination is more remote." Thompson, 2000 WL 1780348, *3. The Court finds that, on this point as well, Baker has not created a genuine question of material fact.
In Harms' situation, the minor was living in an unlicensed home when DCFS received custody in a court order on August 4, 1994. On that same day, the court ordered DCFS to place the minor in that home. Prior to making the placement, Harms did a CANTS check. Harms did not make the placement into an unlicensed home, the placement was made pursuant to the court order. The fact that the minor had previously been living in the unlicensed home does not make the situation comparable to Baker's because DCFS did not have legal custody or responsibility for the minor prior to the court order. In contrast, in N.W.'s case, DCFS, through Baker, took custody and responsibility for N.W. and placed her in an unlicensed and unchecked home.
In Metheny's situation, the children were living in a licensed foster care center when certain distant relatives of the children sought to take the children and applied to be licensed. After the relatives had had extensive contact with DCFS and had completed virtually all steps necessary for licensing, and after Metheny had obtained the approval of her supervisor, Metheny placed the children with the relatives. There are obvious differences between this situation and Baker's placement of N.W. Metheny placed the children with relatives who had virtually completed the process of licensing and were well known to DCFS. Metheny also obtained the approval of her supervisor prior to making the placement. In contrast, Baker took a substantial risk in placing N.W., in a home where the persons were unknown to him, without even alerting his supervisor.
Furthermore, Baker's counsel admitted at oral argument that there is no evidence showing that Kane was aware of the Harms or Metheny situations. See, Brasic v. Heinemann's, Inc., 121 F.3d 281, 286 (7th Cir. 1997) (employee's testimony regarding employees who engages in similar misconduct irrelevant; no evidence management personnel responsible for enforcing the rules were aware of the incidents).
Thus, Baker has not established two of the four elements of a prima facie case of racial discrimination in violation of Title VII, and summary judgment for DCFS is appropriate. Conteras, 2001 WL 8434, *3. But DCFS has also provided a legitimate non-discriminatory reason for Baker's discharge. In this situation, the court may also consider independently whether DCFS would be entitled to summary judgment even if it were assumed, arguendo, that Baker has established his prima facie case. See, e.g., Accurso, 109 F. Supp. 2d at 960. The question then becomes whether Baker can prove that DCFS' stated reason is not its true reason but simply a pretext for an illegitimate motive. Reeves v. Sanderson Plumb. Prods., Inc., 120 S.Ct. 2097, 2106 (2000); E.E.O.C. v. Our Lady of the Resurrection Med. Ctr., 77 F.3d 145, 150 (7th Cir. 1996). Accordingly, the Court's analysis moves to the issue of pretext.
3. Pretext
To avoid summary judgment Baker must proffer significantly probative admissible evidence showing that the employer's articulated reason for the discharge was a pretext for discrimination. King v. Preferred Tech. Group, 166 F.3d 887, 892 (7th Cir. 1999). Plaintiff's subjective beliefs and conclusions are not enough to evidence pretext. Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1114 (7th Cir. 1998); Jones v. General Elec. Info. Servs., 3 F. Supp.2d 910, 918 (N.D.Ill. 1998).
Thus, Baker's bare, unsupported statement that "Kane did not like [Baker] because of [his] race" (Pl.'s Aff. ¶ 11) does not assist Baker.
Recently, the Supreme Court clarified the appropriate standard, supporting a "pretext only" approach analogous to that of the Seventh Circuit. Reeves, 120 S.Ct. at 2109 ("a prima facie case and sufficient evidence to reject the employer's explanation may permit a finding of liability").
When a prima facie case has been proved, pretext can be established "by proving one of the following: (1) [d]efendant's explanation had no basis in fact, or (2) the explanation was not the real reason, or (3) at least, the reason stated was insufficient to warrant'" the adverse job action. Hughes v. Brown, 20 F.3d 745, 747 (7th Cir. 1994), (quoting Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1133 (7th Cir. 1994)). The question is "whether [plaintiff] has created a genuine issue concerning the sincerity of the proffered reasons" given for the adverse employment action. Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1039 (7th Cir. 1993). The plaintiff has the burden of showing that the defendant's reasons for the adverse decision were either lies or had no basis in fact. Mills v. Health Care Service Corp., 171 F.3d 450, 458 (N.D.Ill. 1999).
When determining the issue of pretext, the question is not whether the employer made the correct decision or the most desirable one, but whether it "honestly believes in the reasons it offers." Rand v. CF Indus., Inc., 42 F.3d 1139 (7th Cir. 1994); McCoy v. WGN Cont'l Braod. Co., 957 F.2d 368, 373 (7th Cir. 1992). It is not the court's function to second guess the defendant's business judgment and sit as a super-personnel department. Konowitz v. Schnadig Corp., 965 F.2d 230, 233 (7th Cir. 1992); Fisher v. Wayne-Dalton Corp., No. 95 C 50348, 1997 WL 269479 (N.D.Ill. Apr. 30, 1997), aff'd 139 F.3d 1137 (7th Cir. 1998). Furthermore, it is inappropriate for courts to evaluate whether an employee was disciplined improperly. Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir. 1986). Title VII does not protect against mere unfairness, it is designed to ensure that employment decisions are not based on race. Ray v. First Nat'l Bank of Chicago, No. 90C486, 1991 WL 398681 at *3 (N.D.Ill. Apr. 16, 1991).
Baker contends that DCFS' actions and reasons for terminating him were so unreasonable that the only possible inference is that they are pretextual. In support of his position, Baker states that he did not place a child at risk, did not make a "placement" of the child as defined by DCFS and did not falsify his supervisor's signature. In support of his position he argues that he rarely, if ever "placed" children because he was a follow-up worker. (Baker Dep. at 13, 19, 54, 111-12.) He did not have sufficient training in emergency call procedure ( Id. at 55-6) and did not consider returning the child temporarily to the neighbor as a placement. ( Id. at 62, 68-9, 73, 77.) Additionally, he claims that the forms he had to fill out were confusing and frequently filled out improperly by employees. ( Id. at 71, 75, 121-22.) Therefore, he asserts that DCFS cannot reasonably believe that he purposely broke the rules or violated policy.
In this case, Baker has failed to create a genuine issue of material fact that the reason for his discharge was pretextual. The undisputed facts show that Baker violated DCFS rules, policies and procedures. Baker did not have the proper materials with him when he went on the emergency call. He placed a minor in an unlicenced home and admits' that he did not do any background checks to ensure her safety. The rest of his "evidence" boils down to his arguments that he did not understand that what he was doing was wrong. Those arguments are not persuasive. His argument that he did not "place" N.W. is unsupported. N.W. had been in police custody but had been turned over to DCFS custody at the time when Baker decided to return her to the neighbor's home. Baker has produced no evidence to support his opinion that this was not a placement subject to DCFS procedure. The CERAP form calls for Baker's supervisor's "signature," (Ex. T, Bates 400-03) and DCFS Procedures require that the supervisor sign the completed form. (Ex. F, App. G(7).) Although Baker argues that he was merely putting the name of his supervisor in the space for supervisor, his argument that he reasonably believed that this was not improper is belied by the form itself and by his failure to follow up subsequently to obtain his supervisor's review and real signature. But more importantly, Baker's belief that he was merely mistaken and not at fault fails to show that DCFS' decision was a pretext for discrimination.
However "[a]n employee's self-serving statements about [her] ability are insufficient to contradict an employer's negative assessment of that ability." Self-serving statements do not "shed any light on whether the employer honestly based its employment decision on performance-related considerations, which is the focus of our inquiry in these cases."Adusumilli v. City of Chicago, 164 F.3d 262-63 [ 164 F.3d 353] (7th Cir. 1998), (alteration in original) (quoting Gustovich v. ATT Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992); Dey v. Colt Const. Dev. Co., 28 F.3d 1446, 1460 (7th Cir. 1994)). Moreover, whether or not Baker had an explanation for his handling of the matter is irrelevant for purposes of the pretext analysis. Green v. National Steel Corp., Midwest Div., 197 F.3d 894 (7th Cir. 1999); Spaulding v. Blue Cross-Blue Shield of Illinois, NO. 99 C 5810, 2000 WL 688950 (N.D.Ill. May 24, 2000). See e.g., Mora, 57 F. Supp. at 635 (arguing about the accuracy of the Tribune's assessment is a distraction, since the question is not whether the Tribune's reasons for its decision are correct, but whether the Tribune's description of its reasons is honest); Biolchini v. General Elec. Co., 167 F.3d 1151, 1154-55 (7th Cir. 1999) ("even where a plaintiff in a discrimination case alleges that `the company's investigation was imprudent, ill-informed and inaccurate,' summary judgment is appropriate unless the employee `could point to facts suggesting that the company investigated [him] differently'" because of his protected status).
Baker has not created a question of a fact about whether Kane honestly believed that Baker exhibited an extreme level of disregard for the safety of N.W. and had in fact risked N.W.'s safety. In this case, Baker returned N.W., who showed signs of abuse and was incoherent, to the home of unlicensed, non-relatives about whom Baker knew nothing. He did not know whether the persons in the neighbor's home were a cause of the abuse. He did not even do the most basic background checks. He took a substantial risk with N.W.'s safety, and Kane was informed that the risk became a reality when the neighbor removed N.W. from Illinois without any authorization. The DCFS Policy manual allowed for discipline up to and including dismissal. Baker has not provided any evidence that either DCFS' decision to recommend suspension and consideration of dismissal, or the Department of Central Management Service's decision to terminate Baker was based on racial discrimination rather than an honestly held belief in the reasons given for his termination.
Additionally, Baker's immediate supervisor Robinson, who initiated the investigation, is African American. That fact does not help Baker's racial discrimination claim. Baker states that Robinson was professionally jealous of him. (Pl.'s Aff. ¶ 11.) A recent case from this District dealt with a similar factual situation. In Walker v. Heilig-Meyers, No. 98 C 7774, 2000 WL 628971 (N.D.Ill. Mar 30, 2000), an African American employee claimed that another African American employee "had it out for him, may have put the two customers up to making false charges." Id. at *3. The court found that Walker offered no evidence that the other employee had any racial bias toward Walker, and in any event he had failed to connect the employee's alleged animosity against him to the employer, Heilig-Meyers. Id. Accordingly, Walker's claims were not indicative of pretext. Id. See also, Biolchini, 167 F.3d 1151, 1154-55 (plaintiff failed to present "any evidence indicating that even if the other employees were biased against him, this bias carried over into [defendant's] appraisal of the issues."); Hyre v. University of Illinois, 17 F. Supp.2d 813, 815 (C.D. Ill. 1998) ("At worst, the [defendant] deferred to a co-worker's personal animus against the plaintiff. . . That action might have been unfair, but nothing suggests that the plaintiff's [protected status] motivated it.")
CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment [DKT #46] is hereby GRANTED. Additionally, Defendant's Motion to Strike [DKT #55] is DENIED as moot. Judgment is entered for the defendant. Costs are taxed in favor of the defendant and against the plaintiff.
IT IS SO ORDERED.