Opinion
CAUSE NO. 1:01-CV-80.
April 24, 2002
MEMORANDUM OF DECISION AND ORDER 1. INTRODUCTION
Edward Johnson ("Plaintiff") brings this action against the Defendant, Fort Wayne Community Schools ("FWCS"), alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e), as amended ("Title VII"), and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 ("§ 1981").
While the Plaintiff also originally brought a retaliation claim, he now concedes that it cannot withstand FWCS's motion for summary judgment, so we will grant the motion as to that claim.
In short, the Plaintiff, an African-American, alleges he was terminated from his position as a FWCS bus driver because of his race. Central to the Plaintiffs claim is his allegation that roughly contemporaneous with his termination, two FWCS employees, John Wilson ("Wilson"), a school assistant, and Robert Rinearson ("Rinearson"), the Supervisor of Safety and Student Management for FWCS's Transportation Department, were overheard exchanging racially charged comments about him, ending with Rinearson saying: "I'm going to fire that nigger." In fact, FWCS concedes, for the purposes of summary judgment only, that Rinearson actually terminated the Plaintiff about ninety minutes later.
While these comments are denied by both Wilson and Rinearson, an affidavit from a witness, Alice Carlisle ("Carlisle") recites them. FWCS's motion to strike Carlisle's affidavit is discussed infra.
Presently before the Court is FWCS motion for summary judgment filed on February 1, 2002, contending that the Plaintiff has no evidence of discrimination (even if Rinearson's statement is considered), that he cannot prove a prima facie case indirectly under the McDonell-Douglas burden shifting method, see e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1985), and that the school corporation had a legitimate, non-discriminatory reason for terminating the Plaintiff FWCS also argues that even if direct evidence of discrimination is found, summary judgment is still appropriate because they can establish they would have fired him anyway. ( See Def. Reply Br. at 7) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 260-62 (1989)).
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636 (c), all parties consenting.
Naturally, the Plaintiff's response centers on Carlisle's affidavit, which the Plaintiff characterizes as direct evidence of discrimination. Otherwise, the record consists of various depositions, affidavits, and documents. The Court has jurisdiction over the Plaintiffs claims under 28 U.S.C. § 1331. For the following reasons, FWCS's motion to strike will be DENIED, its motion for attorney's fees will be DENIED, and its motion for summary judgment will be GRANTED in part and DENIED in part.
II. FWCS'S MOTION TO STRIKE AND MOTION FOR ATTORNEY'S FEES
On April 26, 2001, the Plaintiff served FWCS with Fed.R.Civ.P. 26 (a)(1) initial disclosures listing twenty-two potential witnesses and a general description of their "discoverable information" See Fed.R.Civ.P. 26(a)(1)(A). Significant among the list was Carlisle, who, according to the disclosure, "may have information regarding racial slurs made by management employees of Defendant with respect to the Plaintiff" (Pl.'s Resp. Br., Ex. 5 at 6.)
The Plaintiff's initial disclosure also contained a two paragraph statement from Carlisle (apparently previously provided to the NAACP) recounting in greater detail what she saw and heard. While Carlisle at the time did not know the speakers, she did provide a general physical description of them. (Pl.'s Resp. Br., Ex. 6.)
Counsel for FWCS took the Plaintiffs deposition eight days later, and in the course of that deposition asked him to identify the witness who allegedly heard FWCS management employees making racial slurs. The Plaintiff testified that he could not remember the name of the witness, but her name was contained in "the papers" (i.e., the Plaintiffs initial disclosures). (Pl.'s Dep. at 114.) There the matter ended, although after the deposition plaintiffs counsel allegedly informed counsel for FWCS that the person was actually Carlisle. ( See Pl.'s Verified Resp. to M. to Strike at ¶ n. 3.)
Counsel for FWCS disagrees that this "supplementation" occurred. ( See Davis Aff. ¶ 8.)
Now, FWCS seeks to have Carlisle's affidavit stricken because the Plaintiffs initial disclosures failed to comply with Rule 26(a)(1) by omitting Carlisle's address and telephone number, more specific details, and because the disclosure was never supplemented.
The Plaintiff contends he did not know Carlisle's address until after FWCS moved for summary judgment, did not realize she could definitively link the statements she heard to Wilson and Rinearson until he finally talked to her in February 2002, and that the substance of her information was otherwise adequately disclosed.
A. The Initial Disclosure was Adequate
Rule 26(a)(1) requires a party to disclose "the name, and if known, the address and telephone number of each individual likely to have discoverable information[.]" Fed.R.Civ.P. 26(a)(1)(A) (emphasis added). The Plaintiff contends he could not provide FWCS with Carlisle's address any earlier because he did not know it until after FWCS moved for summary judgment, but then promptly disclosed it once it was learned. Given the less than mandatory nature of Rule 26(a)(1), we do not believe the Plaintiff can be sanctioned for failing to disclose information unknown to him or his attorney.
Unlike Rule 26(a)(1), by the time trial approaches, the disclosure of a witness's address and telephone number is mandatory. See Fed.R.Civ.P. 26(a)(3)(A). The difference is obvious, by trial a party certainly knows who they will call as witnesses, and their likely whereabouts. Under the scheduling order in this case, Rule 26(a)(3) disclosures are not yet due.
Additionally, Rule 26(a)(1)(A) does not require detailed witness statements. Indeed, the Advisory Committee Notes only suggest that a party indicate "briefly the general topic on which such persons have information. . . ." See 1993 Advisory Committee Notes to Fed.R.Civ.P. 26(a). The purpose of this limited disclosure is to simply "assist other parties in deciding which depositions will actually be needed." Id. Here, the disclosure regarding Carlisle was certainly of sufficient detail to allow FWCS to make such a decision. While FWCS apparently chose, tactically perhaps, not to depose Carlisle, the overall intent of Rule 26(a)(1)(A) was met and we see no basis to strike her affidavit.
B. The Supplementation was Timely and Adequate
Nevertheless, FWCS contends that even if we deem the initial disclosure to be sufficient, the Plaintiff failed to supplement it once he learned "that in some material respect the information disclosed [was] incomplete. . . ." Fed R. Civ. P. 26(e)(1). However, the Plaintiff apparently did not learn of Carlisle's address until February 2002, when he finally was able to contact her. Immediately thereafter, he submitted her affidavit with her address, detailed testimony, and the identification of Wilson and Rinearson. While FWCS maintains that this supplementation comes too late and after the discovery period, we do not think the rule can be read so rigidly. Indeed, it is important to distinguish between "discovery" and "investigation":
"Discovery" is the process whereby one party learns the evidentiary basis of the opposing party's case and involves an exchange of information. That is the process that ceases at the date discovery is ordered closed. We know of no rule that requires a party to cease investigation of its own case at the close of discovery. Indeed, Rule 26(e)(2) . . . is designed, at least in part, to deal with the problem of later-discovered evidence and requires that a party be under a continuing duty to supplement previous requests . . . whenever "the party learns that the response is in some material way incomplete[.]"Allen v. Bake-Line Prods., Inc., 2001 WL 883693, *1 (N.D. Ill. Aug. 6, 2001) (quoting Marianjoy Rehabilitation Hosp. v. Williams Elec. Games, Inc., 1996 WL 411395, *3 (N.D. Ill. July 19, 1996). Here, the Plaintiff initially disclosed the information known about Carlisle, but after receiving the motion for summary judgment, we presume his counsel investigated on the possible chance she could link what she saw and heard to an actual decisionmaker. Once they learned she could provide the link, they disclosed it, and we see no violation of Rule 26(e) as a result.
C. Even if There was a Violation of Rule 26(a) or (e) it is Either Harmless or Substantially Justified
Under Fed.R.Civ.P. 37(c), "[t]he sanction of exclusion is `automatic and mandatory unless the party to be sanctioned can show that its violation of [Rule 26(a) or 26(e)(1)] was either justified or harmless.'" NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 785-86 (7th Cir. 2000) (quoting Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996)). This Court enjoys "broad discretion" in evaluating the justification for, and harm resulting from, the failure to comply with Rule 26(a) or (e)(1), see, e.g., Miksis v. Howard, 106 F.3d 754, 760 (7th Cir. 1997); Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996); Finley, 75 F.3d at 1231, and should consider the surprise or prejudice to the blameless party, the ability of the offender to cure any resulting prejudice, the amount of disruption to the trial that would result from permitting the use of the evidence, and the bad faith involved in not producing the evidence at an earlier date. Bronk v. Ineichen, 54 F.3d 425, 432 (7th Cir. 1995) (citing Spray-Rite Svc. Corp. v. Monsanto Co., 684 F.2d 1226, 1245 (7th Cir. 1982)); Spearman Indus., Inc. v. St. Paul Fire and Marine Ins. Co., 138 F. Supp.2d 1088, 1093 (N.D. Ill. 2001); In re Brand Name Prescription Drug Antitrust Litigation, 2000 WL 748155, *2 (N.D. Ill. June 5, 2000).
Applying those factors here, we think Carlisle's affidavit hardly comes as a surprise to FWCS, since the Plaintiff initially disclosed both her identity, and statement. In response, FWCS offers a less than compelling argument of prejudice that Carlisle's statement was buried within 240 pages of initial disclosures. While such a production of documents is hardly overwhelming, FWCS "s argument also overlooks the fact that they became aware of her role in the case at the Plaintiffs deposition. (Pl.'s Dep. at 114-17.) Simply stated, FWCS knew of Carlisle and her basic information nearly a year ago, yet never informally pressed for further information, deposed her, or asked for a formal Local Rule 37.1 conference. Given such a record, we think any technical non-disclosure is essentially harmless.
Indeed, the major difference between Carlisle's statement and her later affidavit is that in the former, she was unable to identify the speakers. ( See Carlisle Aff., ¶ 3; Pl.'s Resp. Br. Ex. 6.)
The alleged nondisclosure of Carlisle is also substantially justified. Counsel for the Plaintiff was apparently unaware there was any problem with the disclosure until the latest motion. A Local Rule 37.1 Conference, initiated by FWCS, could have resolved any purported deficiency, but no such dialogue occured.
Nevertheless, FWCS argues the Plaintiff should have "supplemented" his deposition testimony with an errata sheet to specifically identify Carlisle, her address and telephone number. Indeed, Fed. R Civ. P. 30 permits a witness to make changes in the form or substance of a deposition, provided that reasons are given for any change. Fed. R Civ. P. 30(e); Duff v. Lobdell-Emery Mfg. Co., 926 F. Supp. 799, 804 (N.D. Ind. 1996); Havey v. Tenneco, Inc., 2000 WL 198445, *2 (N.D. Ill. Feb. 11, 2000). In fact, the Plaintiff here did change a number of his deposition answers by errata sheet, but never amplified his responses about Carlisle. However, we do not believe the Plaintiff was required to update his deposition to include such information since his prior responses were not incorrect in either form or substance. Consequently, this argument in favor of striking her affidavit likewise fails.
Finally, FWCS has not alleged that the Plaintiff acted in bad faith, or that the alleged non-disclosure will result in a disruption of the trial. See Bronk, 54 F.3d at 432; Spearman, 138 F. Supp.2d at 1093. Consequently, since we find the alleged nondisclosure to be both substantially justified and harmless, we will not strike Carlisle's affidavit.
III. FACTUAL BACKGROUND
The following recitation of facts is viewed in a light most favorable to the Plaintiff.
In December 1990, the Plaintiff was hired by FWCS as a substitute bus driver, a position made full-time the following October. (Pl.'s Dep. at 35-36.) During the Plaintiffs ten years as a bus driver for FWCS, he maintained a checkered, but apparently satisfactory, performance record. While it appears the Plaintiff received some form of disciplinary action at least nine times, ranging from informal conversations and "write-ups" to a formal suspension, FWCS nevertheless retained him as a bus driver, at least until the events of June 2, 2000. ( Id. at 338-41, 48, 56-62, 67, 74, 98-99, 121; Def.'s M. for Summ. J., Exs. L-DD.)
In its reply brief, FWCS concedes for the purposes of summary judgment only, that the Plaintiff's past disciplinary record was not considered in its decision to terminate him. (Def.'s Reply Br. at 7.)
That day, two middle school children ran towards the Plaintiffs bus as school let out, and, as they boarded, one apparently yelled to the other, "I hate you." (Pl.'s Dep. at 102-03.) Believing the student was referring to him, the Plaintiff ordered him off the bus, and reported the incident to Ken Ostermeyer ("Ostermeyer") a school assistant at the middle school. ( Id. at 104.) Soon thereafter, the student returned with an adult, Barbara Quinn ("Quinn"), who, apparently unknown to the Plaintiff, was both a fellow bus driver and the student's grandmother. ( Id. at 103-04.) The Plaintiff contends Quinn was extremely agitated about how the Plaintiff treated her grandson, and got so close to the Plaintiff that her spittle flew into his face as she spoke. ( Id. at 102-03, 106.) The Plaintiff repeatedly requested that Quinn step back, but she refused, so the Plaintiff placed his hand on her shoulder, and "just eased her pushed her back out of my face." ( Id. at 104.)
At this point, two school assistants, Wilson and Ostermeyer, stepped in to separate Quinn and the Plaintiff. (Wilson Aff. ¶ ¶ 4-6; Ostermeyer Aff, ¶ ¶ 3-5.) Shortly thereafter, Wilson and Ostermeyer reported the incident to Rinearson, a Supervisor of Safety and Student Management for the Transportation Department. (Rinearson Aff, ¶ 5; Wilson Aff., ¶ 7; Ostermeyer Aff., ¶ 7.)
It should be noted that both Wislon and Ostermeyer, each of whom was an eyewitness to the confrontation, describe the Plaintiff as the aggressor, and relate that at one point he struck Quinn on the arm with a roll of papers. ( See Wilson Aff., ¶ 4; Ostermeyer Aff., ¶ 4.) Apparently, this was the version reported to Rinearson.
It was apparently about this time that Carlisle, who was there to visit a family member, arrived on the scene and overheard Wilson say, while gesturing to the Plaintiff, "I told that nigger to get back on the bus and that's what I mean [sic]." ( Id., ¶ 5.) Rinearson responded "I don't know what that nigger's problem was with shoving her. I am going to fire that nigger." ( Id., ¶ 6.)
Although Carlisle did not know the men by name, she was able to later identify them through photographs. ( See Carlisle Dep.)
Rinearson apparently next telephoned his supervisor, Jim Ridley ("Ridley"), an African-American and the Director of the Transportation Department. (Ridley Aff. ¶ 2; Rinearson Aff., ¶ 6.) Rinearson described to Ridley the confrontation between Quinn and the Plaintiff, essentially relaying what Wilson and Ostermeyer had told him. (Rinearson Aff., ¶ 6; Ridley Aff., ¶ 4.) Presumably, Rinearson did not tell Ridley that both he and Wilson had referred to the Plaintiff as a "nigger." Ridley instructed Rinearson to contact Karen Bragg-Matthews ("Bragg Matthews"), the Head of Human Resources for the Transportation Department, who also is an African-American. (Ridley Aff., ¶ 4.) Once again Rinearson described the confrontation and the Wilson and Ostermeyer reports. (Rinearson Aff., ¶ 7.) Again, we assume Rinearson kept mum about his and Wilson's racial comments. Bragg-Matthews told Rinearson to begin an immediate investigation by questioning Quinn and her grandson. (Bragg-Matthews Aff., ¶ 6; Rinearson Aff., ¶ 8.)
Rinearson then drove to a different school to speak with Quinn and her grandson. (Rinearson Aff., ¶ 9.) Quinn informed him that her grandson had been visibly upset and that she went to speak with the Plaintiff about the matter, but the Plaintiff verbally attacked her and ultimately pushed her. (Quinn Aff. ¶ 4; Rinearson Aff., ¶ ¶ 10-11.) Rinearson called Bragg Matthews back with this information, and she instructed him to meet with Ridley, interview the Plaintiff, and suspend the Plaintiff pending further investigation. (Rinearson Aff., ¶ 16; Bragg-Matthews Aff., ¶ 10.) Rinearson then went to a FWCS transportation center where he met with Ridley shortly before 4:00 p.m., relaying Quinn's statements and Bragg-Matthews' instructions. (Ridley Aff., ¶ 8.) Upon arriving at the transportation center at 4:00 p.m., the Plaintiff, along with his bus assistant James Warfield, met with Ridley and Rinearson. ( Id.) At this point Johnson apparently told his side of the story, claiming Quinn verbally attacked him. ( Id.; Rinearson Aff, ¶ 14.)
Nevertheless, Rinearson fired the Plaintiff on the spot. (Pl.'s Dep at 121-22.)
There is a factual dispute as to the precise action taken on June 2, 2000. Indeed, in his deposition and Declaration, the Plaintiff insists Rinearson fired him. (Pl.'s Dep. at 121-22; Pl.'s Decl., ¶ 8.).) However, both Rinearson and Ridley say the Plaintiff was merely suspended as Bragg-Matthews instructed. (Rinearson Aff., ¶ 16; Ridley Aff., ¶ 12.) However, while FWCS's documentation indicates the Plaintiff was suspended without pay beginning June 4, 2000, and ultimately terminated following Bragg-Matthews' July 26, 2000, recommendation to the Employee Relations Department, (see Def.'s M. for Summ. J., Ex. DD; Bragg-Matthews Aff., ¶ ¶ 10-11), FWCS concedes for purposes of the present motion only that the Plaintiff was terminated on June 2, 2000, by Rinearson. (Def.'s Br. at 6, n. 2).
VI. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "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). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff" Id. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v. Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.
In any event, in employment discrimination matters, the standard on summary judgment is applied with "added rigor." Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). As the Seventh Circuit reiterated in Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1169 (7th Cir. 1994), citing the standard set out in Sarsha:
Summary judgment is appropriate only when the materials before the court demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. [citations omitted].
The anachronistic term "Directed Verdict" is no longer used; rather, it has been more accurately retitled "Judgment as a Matter of Law." See Fed.R.Civ.P. 50(a). A defendant is entitled to such a judgment if "there is no legally sufficient evidentiary basis for a reasonable jury to find for" the plaintiff. Id.
However, the 7th Circuit has recently clarified its use of the phrase added rigor, stating that the "original use of this phrase indicates that it was merely included to stress the fact that employment discrimination cases typically involve questions of intent and credibility, issues not appropriate for this court to decide on a review of a grant of summary judgment." Alexander v. Wisconsin Dept. of Health and Family Servs., 263 F.3d 673, 681 (7th Cir. 2001).
V. DISCUSSION
The Plaintiff contends that he was discriminated against based on his race in violation of § 1981 and Title VII, identical claims for purposes of our analysis here. See Patton v. Indianapolis Public School Bd., 276 F.3d 334, 338 (7th Cir. 2002).
The Plaintiff's argument relies on the simple proposition that Rinearson's statement "I'm going to fire that nigger" constitutes direct evidence of discrimination. However, FWCS, responds that summary judgment is proper because Rinearson's statement does not amount to direct evidence, but that even if it does, summary judgment is still warranted because they would have fired the Plaintiff anyway. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). We will discuss these contentions in turn.
Since, the Plaintiff does not argue that McDonnell Douglas applies, we will not discuss that prong of the analysis further.
A. The Plaintiff's Direct Evidence Claim
(1) The Plaintiff Has Shown Direct Evidence of Discrimination
Direct evidence is that which, "if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." Kennedy v. Schoenberg, Fisher Newman, LTD., 140 F.3d 716, 724 (7th Cir. 1998) (quoting Randle v. LaSalle Telecomm., Inc., 876 F.2d 563, 569 (7th Cir. 1989)); Fyfe v. City of Fort Wayne, 241 F.3d 597, 601 (7th Cir. 2001). The Seventh Circuit has described it as
[e]vidence which in and of itself suggests that . . . persons with the power to . . . fire . . . the plaintiff were animated by an illegal employment criterion. . . . This evidence need not be obvious to qualify as direct evidence. Evidence of discriminatory motives must, however, have some relationship with the employment decision in question; inappropriate but isolated comments that amount to no more than "stray remarks" in the workplace will not do.Venters v. City of Delphi, 123 F.3d 956, 972-73 (7th Cir. 1997) (citations omitted). However, even isolated comments can constitute direct evidence when "contemporaneous with the discharge or causally related to the discharge decision making process." Kennedy, 140 F.3d at 724; Randle, 876 F.2d at 569; Fyfe, 241 F.3d at 602.
Direct evidence may also consist of "remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based on illegal criteria . . . even if the evidence stops short of a virtual admission of illegality." Sanghvi v. St. Catherine's Hosp., Inc., 258 F.3d 570, 573 (7th Cir. 2001); Walker v. Glickman, 241 F.3d 884, 888 (7th Cir. 2001); Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7th Cir. 1999); Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999); Rayl v. Fort Wayne Community Schools, 87 F. Supp.2d 870, 878 (N.D. Ind. 2000).
FWCS essentially argues two points: first, Rinearson's "I'm going to fire that nigger" statement alone is not enough to constitute direct evidence because it does not show he had any discriminatory intent; and second, the statement cannot constitute direct evidence because a full investigation was performed under the direction of Ridley and Bragg-Matthews and Rinearson was not the ultimate decisionmaker.
Notwithstanding these rather fine points, the record discloses that just moments after the Plaintiff's confrontation with Quinn, Wilson (one of the school's eyewitnesses to the confrontation) was referring to the Plaintiff as "that nigger." Apparently Wilson's comments hit a responsive chord with Rinearson who readily joined in with the stated intent to "fire that nigger." Indeed, it was Rinearson who reported the incident to Ridley and Bragg-Matthews (apparently heavily weighted towards Quinn's version), and got himself appointed as FWCS's investigator. After conducting a truncated investigation of less than 90 minutes, Rinearson took it upon himself to fire the Plaintiff.
Nevertheless, FWCS argues that Rinearson's statement does not directly reveal that race motivated the decision to fire the Plaintiff because he did not say "I am going to fire [the Plaintiff] because he is a nigger" (Def.'s Reply Br. at 3) (emphasis added). Specifically, FWCS contends that Rinearson's statement is nothing more than an appalled reaction to the Plaintiff's conduct, and cannot be construed as direct evidence without drawing an impermissible inference. However, this argument would require direct evidence to be "obvious," a point the Seventh Circuit has rejected. See Venters, 123 F.3d at 972-73. Indeed, all that need be shown is evidence of a discriminatory motive ("I'm going to fire that nigger") and a relationship to the employment decision in question (i.e., Rinearson's brief and one-sided investigation and subsequent termination of the Plaintiff). Id.
However, FWCS also contends the use of the word "nigger" is not direct evidence per se. ( See Def.'s Resp. Br. at 4) (citing Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984)). While in a vacuum this is time, it is also undeniable, as the Bailey court observed, that use of the term "nigger" is discrimination per se. Bailey, 583 F. Supp. at 927; see also Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 n. 6 (4th Cir. 2001). So what we think FWCS is really arguing here is that while Rinearson s comment might be evidence of discrimination, it cannot be linked to the employment decision. To make this argument, FWCS relies on two cases. The first, Parker v. Rockford Park District, 2001 WL 114405 (N.D. Ill. Feb. 2, 2001), is an odd case to cite considering it does not even involve the use of the word "nigger." There, a discharged employee's African-American supervisor told him "`I ought to fire your black ass[.]'" Parker, 2001 WL 114405, at *2. In rejecting the employee's argument that this was direct evidence, the court found the specific circumstances surrounding the statement did not support an inference of discriminatory animus because the alleged discriminator was an African-American, as was the employee's replacement. Id. at *4. Moreover, while the other case cited by FWCS, Kundacina v. Concession Services, Inc., 1997 WL 222943 (N.D. Ill. April 30, 1997), appears to be at least a little closer, it has no force here because in that case a manager's muttering of "F[ucking] Niggers," while referring to no one in particular, lacked the requisite link to any adverse action so as to constitute direct evidence. Id. at *3 (brackets in original).
In any event, viewed in a light most favorable to the Plaintiff, it is clear that Rinearson's statement, followed by his investigation and firing of the Plaintiff, all within 90 minutes, establishes an unbroken chain of events between the statement and the employment decision. See Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 611 (7th Cir. 2001) ("a causal nexus between the remark and the decision to discharge" can be demonstrated by a temporal proximity) (quoting Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996)). Indeed, this case seems to fit perfectly into the "paradigm example of direct evidence[:] . . . `I will fire you n___.'" Gullatte v. Westport Stevens, Inc., 100 F. Supp.2d 1315, 1318 (M.D. Ala. 2000) (citing Merritt v. Dillard Paper Co., 120 F.3d 1181, 1190 (11th Cir. 1997).
Finally, FWCS argues there is no direct evidence because a full investigation was performed, and Rinearson was not really the decisionmaker. However, we think such an argument also ignores the evidence viewed in a light most favorable to the Plaintiff.
Indeed, that record reveals that in the short span of 90 minutes Rinearson effectively became FWCS's prosecutor (i.e., "I'm going to fire that nigger"), purported fact-finder, and decision maker. While FWCS contends that Ridley and Bragg-Matthew's directed the investigation, Rinearson was wholly responsible for interviewing the eyewitnesses, including Wilson, who he also knew called the Plaintiff a "nigger" ( see Carlisle Aff., ¶ 5), and most importantly, assessing their credibility. This put Ridley and Bragg-Matthews is the difficult position of becoming entirely dependant on Rinearson to develop a race-neutral account of the facts. Stated a little differently, it is highly unlikely they would have put Rinearson in such a position (or relied on his findings) if he had reported his own alleged statements at any time during the investigation. of course, even if Rinearson did not make his "nigger" statement, it is still noteworthy that he never reported Wilson's alleged racist comment either.
At the very least, these facts give rise to the inference that Rinearson influenced, if not controlled, FWCS's investigation and the decision of Ridley and Bragg-Matthews. See Willis v. Marion Cty. Auditor's Office, 118 F.3d 542, 547 (7th Cir. 1997) (the ultimate decisionmaker can be a mere conduit, or "cat's paw" for a subordinate's prejudice under Title VII); Shager v. Upjohn Company, 913 F.2d 398, 404-05 (7th Cir. 1990). In fact, while Bragg-Matthews decided to suspend the Plaintiff without pay (an adverse employment action in itself, see Conley v. Village of Bedford Park, 215 F.3d 703, 709 (7th Cir. 2000)) Rinearson took it upon himself to actually fire the Plaintiff, a position later ratified by FWCS.
Accordingly, viewed thusly, we think this is sufficient to establish direct evidence of discrimination.
(2) The Plaintiff Has at Least Shown Circumstantial Direct Evidence
However, even if not entirely supportive of direct evidence, we believe the record does at least support a finding of circumstantial direct evidence of discrimination. See Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994).
The Plaintiff may show such circumstantial evidence of race discrimination by presenting (1) a mosaic of evidence including ambiguous statements and other behavior directed at employees in the protected group, which, taken together, would permit a jury to infer discriminatory intent; (2) comparative evidence that others similarly situated to the Plaintiff, not in the protected group, received systematically better treatment; or (3) evidence of pretext, where the Plaintiff is qualified for and fails to receive the desired treatment, and the employer's stated reason for the difference is unworthy of belief. Piraino v. International Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir. 1996) (citing Troupe, 20 F.3d at 736); Bell v. E.P.A., 232 F.3d 546, 554 (7th Cir. 2000). "Each type of evidence is sufficient by itself (depending of course on its strength in relation to whatever other evidence is in the case) to support a judgment for the plaintiff." Troupe, 20 F.3d at 736.
The Plaintiff presents no evidence of the second type, i.e., of others receiving systematically better treatment." Troupe, 20 F.3d at 736; Bell, 232 F.3d at 554. Additionally, because a showing of pretext under the third category is substantially identical to the pretext requirement under the McDonnell Douglas burden shifting test, and because the Plaintiff does not argue that prong, we will focus on the first point. See Huff v. Uarco, Inc., 122 F.3d 374, 380 (7th Cir. 1997) (analyzing the third type of circumstantial evidence under McDonnell Douglas). Thus, the question is whether a reasonable jury could find ambiguous statements, suspicious timing, and other pieces of evidence that together "compos[e] a convincing mosaic of discrimination against [the Plaintiff]." Troupe, 20 F.3d at 737.
In that regard, all that is required is evidence from which a rational trier of fact can reasonably infer that the defendant fired the Plaintiff because he was a member of a protected class. Troupe, 20 F.3d at 737. Assembling the mosaic here, the evidence viewed most favorably to the Plaintiff suggests that Rinearson carried out an unambiguously racist promise to fire the Plaintiff by conducting a suspiciously short investigation, and then feeding the so-called "facts" to his superiors in such a manner (and without disclosing that at least one eyewitness made a racist statement) as to practically ensure the Plaintiff's termination. This, plus the close temporal proximity between Rinearson's statement and actual firing of the Plaintiff would allow a reasonable jury to at least infer that it was Rinearson's racial animus that actually led to the Plaintiff's termination.
Thus, with the evidence patched together in this manner, it composes "a convincing mosaic of discrimination" against the Defendant. See Council 31, Am. Fed'n of State, County and Mun. Employees, AFL-CIO v. Doherty, 169 F.3d 1068, 1073 (7th Cir. 1999) (citing Troupe, 20 F.3d at 736-37). Accordingly, because we believe sufficient circumstantial direct evidence exists to suggest that the Plaintiff was terminated because of his race, we must deny summary judgment.
B. FWCS's Mixed Motives Argument
Having established direct evidence of discrimination, the burden now shifts to FWCS to demonstrate by a preponderance of the evidence that it would have made the same employment decision even with Rinearson's racial animus entering into the picture. 42 U.S.C. § 2000e-2 (m); Price Waterhouse, 490 U.S. at 252; Frobose v. American Sav. and Loan Ass'n of Danville, 152 F.3d 602, 614 (7th Cir. 1998) ("The burden shifted to the defendant is one of persuasion, not simply one of production"). However, "[t]he persuasiveness of that showing will normally be for the finder of fact to assess, unless the court can say without reservation that a reasonable finder of fact would be compelled to credit the employer's case on this point." Venters, 123 F.3d at 971 (citing Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 893 (7th Cir. 1996)); Frobose, 152 F.3d at 615 n. 12.
While acknowledging this rather high hurdle, FWCS contends the record supports summary judgment because in the incident with Quinn the Plaintiff violated two of its "Work Rules," which can "lead to discipline, including termination." (Def.'s Reply Br. Ex. K). Specifically, FWCS cites to two prohibitions: "[t]hreatening, intimidating, or harassing other school employees" under Rule 19, and "[e]ngaging in . . . unauthorized action or making . . . unauthorized statement[s] that might place the school corporation in violation of state or federal law" under Rule 36. ( Id.) Additionally, FWCS contends that the seriousness of the incident, particularly with children present, compelled termination of the Plaintiff because he "verbally attacked and . . . physically assaulted [Quinn.]" (Def.'s Reply Br. at 8.)
Of course, FWCS's "mixed motives" argument might work but for the fact that we must view the facts in a light most favorable to the Plaintiff. Indeed, if the Plaintiff's version of the incident is to be believed, it is at least arguable that Quinn was the one who violated the work rules and should have been terminated.
Moreover, since FWCS concedes, for purposes of Summary Judgment only, that Rinearson fired the Plaintiff on June 2, 2000, based solely on his investigation, we would have to find at this point, as a matter of law, that an unbiased Rinearson (or a fully informed Bragg Matthews) still would have fired the Plaintiff. Such a finding would require speculation, let alone ignoring the inferences that reasonably flow from this record. Moreover, an unbiased Rinearson would have known from the start that one of the principal accusers of the Plaintiff, Wilson, harbored his own racial animus. ( See Carlisle Decl., ¶ 5.) This should have at least alerted him to Wilson's possible predisposition to side with Quinn and against the Plaintiff. Such a factor would have led a prudent and unbiased investigator to a more careful review of each side's story and certainly to a disclosure of the statement to Bragg-Matthews. Instead, on this record, it could be inferred that Wilson's statement energized Rinearson to rush to judgment about the Plaintiff's culpability, a mindset he may have already held, and this at least raises a question of fact as to whether the Plaintiff would still have been terminated on June 2, 2000.
However, getting back to FWCS's "mixed motives" argument, a jury may ultimately find the entire incident occurred just as Quinn said and that FWCS would have terminated the Plaintiff in any event. See Price Waterhouse, 490 U.S. at 252. However, at present, this case, like so many others that rely on Price Waterhouse, is simply haunted by too many facts and inferences to grant summary judgment. See Venters, 123 F.3d at 971; Veprinsky, 87 F.3d at 893; Frobose, 152 F.3d at 615 n. 12; Robinson v. PPG Indus., 23 F.3d 1159, 1165 (7th Cir. 1994).
Moreover, even if FWCS could satisfy its burden, given the present state of the record, it would still have to face trial for possible injunctive relief, attorney's fees and costs for using impermissible discriminatory criteria. See 42 U.S.C. § 2000e-5 (g)(2)(B); Speedy v. Rexnord Corp., 243 F.3d 397, 401 (7th Cir. 2001); McNutt v. Bd. of Trustees of the Univ. of Illinois, 141 F.3d 706, 708 (7th Cir. 1998).
Consequently, FWCS "s motion for summary judgment must be denied on this basis as well.
CONCLUSION
For the foregoing reasons, FWCS's motion to strike is DENIED, its motion for fees is DENIED, and its motion for summary judgment is GRANTED as to the Plaintiff's retaliation claim and DENIED as to his Title VII and § 1981 race discrimination claims.
We do not imply that we think the Plaintiff has a strong case, but we do think he has just enough of a case that it needs to go to trial. Huff, 122 F.3d at 385 (citing Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269 (7th Cir. 1993)). of course, the parties should now make every effort to resolve the matter through settlement.