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granting motion to strike surreply and accompanying affidavit to the extent they "exceeded the scope of defendant's newly submitted evidence"
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Cause No. IP01-1775-C-H/K
August 26, 2003
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Ronald D. Lloyd was employed as a supervisor with defendant Rolls-Royce Corporation. His employment was terminated as part of a reduction in force on January 31, 2001. Lloyd alleges that Rolls-Royce violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by using his race (African-American) to select him for termination. Lloyd has also asserted a claim of retaliation. Defendant Rolls-Royce has moved for summary judgment on both claims. For the reasons explained below, that motion is granted.
I. Summary Judgment Standard
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 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment 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 Fed.R.Civ.P. 56(c); Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir. 2000).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all evidence in the light most favorable to and draw all reasonable inferences in favor of Lloyd, the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000). If the answer is no, then summary judgment must be entered. When the outcome of a trial is inevitable, it is a "gratuitous cruelty," not to mention a waste of time, money, and human energy, to force the parties to go through a trial. See Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to them. See, e.g., Alexander v. Wisconsin Dep't of Health and Family Servs., 263 F.3d 673, 681 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact. See Haugerud v. Amery Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001) (same standard applies to any type of case).
II. Preliminary Matters and Motions to Strike
Before addressing the issue of summary judgment, the court addresses two preliminary matters. First, defendant argues that its statements of material facts are uncontroverted because of plaintiff's failure to comply with Local Rule 56.1. Based on those uncontroverted facts, defendant argues that it is entitled to summary judgment. Second, defendant has moved to strike all or portions of plaintiff's surreply and an accompanying affidavit for failing to comply with Local Rule 56.1 and Rule 56 of the Federal Rules of Civil Procedure.
A. Compliance with Local Rule 56.1
This court's Local Rule 56.1 governs the presentation of motions for summary judgment and opposition to such motions. The rule has been amended several times, most recently on July 1, 2002, well before the parties filed their papers in this case. Local Rule 56.1 requires a party opposing a motion for summary judgment to submit and to identify specifically any evidence the party relies upon to establish the existence of a genuine issue of material fact. Such specific references to evidence have been at the core of the rule's requirements in all recent iterations.
Local Rule 56.1(b) states:
No later than 30 days after service of the motion, a party opposing the motion shall serve and file a supporting brief and any evidence not already in the record upon which the party relies. The brief shall include a section labeled "Statement of Material Facts in Dispute" which responds to the movant's asserted material facts by identifying the potentially determinative facts and factual disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment. These facts shall be supported by appropriate citations to discovery responses, depositions, affidavits, and other admissible evidence either already in the record or contained in an appendix to the brief.
Local Rule 56.1(e) states that "the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts: are specifically controverted in the opposing party's `Statement of Material Facts in Dispute' by admissible evidence. . . ." Local Rule 56.1(e).
Defendant Rolls-Royce has submitted a properly supported motion for summary judgment, attaching affidavits and portions of Lloyd's deposition as evidence. Lloyd responded specifically to some of Rolls-Royce's statements of material fact, citing to affidavits and exhibits, but he did not respond at all to most of the factual assertions. See Pl. Resp. at 4. Plaintiff Lloyd's response does not comply with Local Rule 56.1, but the court can easily discern from his response his theory of the case, the evidence he relies upon, and the issues he believes require a trial. His silence on a number of facts asserted by Rolls-Royce amounts to his concession that those facts are undisputed. The court must also disregard the factual assertions by Lloyd that are not supported by admissible evidence filed with the court. Thus, Lloyd's accusations and rhetorical questions not supported by evidence are disregarded. To the extent that Rolls-Royce has submitted uncontroverted evidence, that evidence will be considered undisputed for purposes of this motion. Local Rule 56.1(e).
B. Motion to Strike Affidavit and Surreply
Defendant next argues that plaintiff's surreply brief and accompanying affidavit should be stricken from the record. Because moving parties' reply briefs often object to the opponent's evidence and/or submit new evidence to support the motion, Local Rule 56.1(d) provides that a party "may file a surreply brief limited to such new evidence and objections" that were submitted in the opposing party's reply brief. (Emphasis added.) The Local Rules Advisory Committee Notes to Rule 56.1(d) state that a "non-moving party may file a surreply brief. . . . only when: (1) the moving party submits in its reply brief evidence not previously cited; or (2) the moving party objects in its Reply to the admissibility of evidence cited by the non-movant."
In this case, defendant, as the moving party, did not object to the admissibility of any of plaintiff's evidence, but it did submit new evidence with its reply brief. Defendant submitted the second affidavit of Dennis Dellinger, which discusses the decision to transfer one employee to the Evansville plant. See Dellinger Supp. Aff. ¶ 4. It is reasonable to conclude that the nonmovant "is permitted to submit evidence with her surreply brief, so long as the evidence `respond[s] to the moving party's new evidence.'" Pike v. Caldera, 188 F.R.D. 519, 534 (S.D.Ind. 1999) (interpreting prior but similar version of Local Rule 56.1). Thus, plaintiff was entitled to submit a surreply brief and new evidence to respond to defendant's new evidence. However, plaintiff's surreply exceeded the scope of defendant's newly submitted evidence. To the extent that the surreply brief discusses evidence beyond the scope of Dellinger's second affidavit, those portions are stricken.
Similarly, defendant has moved to strike the second affidavit of plaintiff's father, John Lloyd, Sr. (hereinafter "Lloyd, Sr."). That motion is granted. The second Lloyd, Sr. affidavit has nothing to do with Dellinger's supplemental affidavit. Instead, the second Lloyd, Sr. affidavit raises a host of new points that should have been raised, if at all, in plaintiff's original response to the motion. A party opposing a motion for summary judgment is not entitled to hold back evidence until he files a surreply brief. In addition, Lloyd, Sr.'s second affidavit is rife with speculation, hearsay, and assertions unsupported by personal knowledge. See Fed.R.Civ.P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."); Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (affidavits fail to defeat summary judgment when they are not based on personal knowledge). The second affidavit of Lloyd, Sr. is stricken from the record.
III. Undisputed Facts
For purposes of Rolls-Royce's motion for summary judgment, the following facts are either undisputed or reflect the actual evidence in the record (as distinct from unsupported rhetoric and conclusions) in the light most reasonably favorable to the plaintiff.
A. Rolls-Royce
Rolls-Royce designs, manufactures, and sells gas turbine engines and components for aviation, industrial, and marine applications. Plaintiff Ronald D. Lloyd was originally hired by Rolls-Royce as an hourly employee in February 1995. In May 1998, he became an inspection supervisor in the Non-Destructive Testing ("NDT") department. He continued in that position until he was terminated as a part of the January 31, 2001 workforce reduction. Nuckles Aff. ¶ 2. As its name suggests, the NDT department deals with the non-destructive testing of the materials of various parts to verify quality without rendering the tested parts useless. Kettery Aff. ¶ 3.
There are five sub-departments within the NDT department: X-ray, Ultrasonics, Eddy Current, Magnetic Particle, and Fluorescent Penetrants. Id. Employees within each NDT sub-department are certified by level. Id., ¶ 4. An employee may be classified as level 1, 2, or 3, with level 3 being the highest proficiency level in that particular area. Id. However, an employee's level has no bearing on his compensation. See id., ¶ 5. Rather, compensation is based on performance and length of service with the company. Id. The certification process to achieve level 3 supervisor status is fairly rigorous: The employee must, at a minimum, pass a test and have approximately four to six years of experience. Id., ¶ 4. Further, Rolls-Royce must consider the employee a candidate for the training in order for the employee to receive it. See id.
John Collier became an NDT Inspection Manager, first shift, at Rolls-Royce sometime in 2000. Collier Aff. ¶ 2. Part of his responsibilities included oversight of quality issues in several areas, including the NDT afternoon shift, on which Lloyd worked. At the time of the January 2001 workforce reduction, Collier reported directly to John Lloyd, Sr., who is plaintiff Lloyd's father. Id., ¶ 3.
Terry Kettery is the NDT Manager and thus is responsible for all inspection supervisors. Kettery Aff. ¶ 6. At the time of the workforce reduction, Kettery's immediate supervisor was Mehmet Doner, Director of Manufacturing Technical Services. Id., ¶ 2. Doner, in turn, answered to Dennis Dellinger, who was the Director of Facilities. Doner Aff. ¶ 2.
B. Plaintiff Ronald Lloyd
Lloyd was a Level 2 NDT Inspection Supervisor in the Magnetic Particle and Fluorescent Penetrants sub-departments. Kettery Aff. ¶ 3. In October 1999, Lloyd was transferred to the midnight shift. Lloyd Aff. ¶ 2. While he was on the midnight shift, his immediate supervisor was Leroy Governor. Id. In early 2000, Lloyd was transferred to the afternoon shift. Id. Lloyd states that, while on the afternoon shift, he reported directly to John Collier until Collier received a special assignment as First Shift Inspection Manager. Id.; Collier Aff. ¶¶ 2-3. During Collier's absence, Lloyd reported to Ed Smith, Jr., until Lloyd was transferred to the day shift in September 2000. Lloyd Aff. ¶ 2.
As the NDT Manager, Kettery had received numerous complaints concerning Lloyd's work. Kettery was also familiar with Lloyd's work through discussions with other managers and general reviews of his work. Kettery Aff. ¶ 6. In fall 2000, Kettery analyzed Lloyd's work directly when Lloyd was placed on the day shift for further training. Id. Kettery testified that Lloyd had difficulty making decisions, displayed poor work habits, routinely fell behind due to weak productivity, and repeatedly fell asleep at work. Id., ¶ 7; see also Lloyd Dep. 205-07. Kettery testified that he received more complaints about Lloyd's performance than about any other employee. Kettery Aff. ¶ 7. Kettery shared these complaints with both Dellinger and Doner. Id.; Doner Aff. ¶¶ 4-5. Doner also testified that he received numerous complaints regarding Lloyd's work performance. Doner Aff. ¶ 5. These complaints ranged from Lloyd's inability to organize and prioritize tasks to his difficulty in keeping subordinates on task. Doner Aff. ¶ 5. These complaints were eventually relayed to Dellinger, the Director of Facilities. Dellinger Aff. ¶ 5.
Based on those complaints, in late summer 2000, Doner and Dellinger instructed Kettery to move Lloyd temporarily to the day shift for additional training in an effort to improve his performance as inspection supervisor. Doner Aff. ¶ 6; see Dellinger Aff. ¶ 8; Kettery Aff. ¶ 8. Kettery testified that he informed Lloyd that the move was remedial in nature. Kettery Aff. ¶ 8. In his affidavit, Lloyd testified that he was transferred to the day shift in order to receive training for Level 3 certification. Lloyd Aff. ¶ 7. However, he also testified that when he first reported on the day shift, he was informed that he was to be cross-trained for management skills. Id. As a part of his training, Lloyd was assigned to work with highly-rated inspection supervisors. Kettery Aff. ¶ 8. According to Doner, Rolls-Royce had never before conducted such remedial measures for an NDT supervisor. Doner Aff. ¶ 6.
After his training was completed, Kettery completed an interim evaluation of Lloyd's progress and found that the additional training had not improved his performance. Kettery Aff. ¶¶ 8-9. The evaluation makes particular note of Lloyd's weaknesses in the areas of attending meetings, communication, planning, scheduling, organizing, budget requirements, and self-development. Id., ¶ 9, Ex. 1. Kettery also noted that Lloyd needed improvement in the areas of interpersonal skills, problem-solving skills, initiative, and supervisory capacity. Id. Kettery met with Lloyd on October 3, 2000 to discuss the evaluation with Lloyd. Id. Kettery noted Lloyd's comments on the evaluation form, and both Kettery and Lloyd signed the document. Id.
Kettery also completed an annual evaluation in January 2001 of Lloyd's performance for the previous year, which drew similar comments and poor ratings. Id., ¶ 11, Ex. 2. Kettery testified that he was not aware that Lloyd would be included in the workforce reduction until sometime after both evaluations were completed. Id., ¶ 11; see also Dellinger Aff. ¶ 5 (Doner and Dellinger completed assessment forms for January 2001 workforce reduction). Due to the workforce reduction, Kettery did not review that evaluation with Lloyd prior to forwarding it to human resources. Kettery Aff. ¶ 11; Nuckles Aff. ¶ 11. Lloyd was the only salaried NDT department employee who received a below average rating for the year 2000. Nuckles Aff. ¶ 11. No salaried NDT department employee received an annual performance rating lower than Lloyd for the years 1999 or 2000. Id.
C. The January 31, 2001 Reduction Process
During the summer of 2000, Rolls-Royce management began having discussions about laying off workers, terming it a workforce reduction. Dellinger Aff. ¶ 3. Department heads were asked to evaluate their department's staffing needs and to determine how many positions could be cut. Plummer Aff. ¶ 5. Prior to any employee assessment, each department determined the number of positions that would be cut. Dellinger Aff. ¶ 4. Reductions were authorized in all areas of the workforce, resulting in 51 employees from different departments losing their positions. Plummer Aff. ¶ 5. The NDT department was slated to lose one position. Dellinger Aff. ¶ 4.
After the determination was made as to how many positions in each department would be cut, each department undertook an assessment of all of its salaried employees. Dellinger Aff. ¶ 5. An assessment form was prepared by Robert Plummer, the Vice-President of Human Resources. The form measured an employee's current level of performance (over the preceding year) against the following criteria: teamwork, adaptability, expertise and skill, accountability, and customer focus. Plummer Aff. ¶ 7. For each of the five criteria, the employee could receive up to three points. Id., Ex. 3. The points received would then be totaled, with up to four additional points added for length of service. Id. Human resource representatives instructed department managers to evaluate their employees based on their current job responsibilities and their performance over the previous twelve months. Id., ¶ 8. Prior performance evaluations were not consulted in completing the workforce reduction assessment form. Nuckles Aff. ¶ 3.
Dellinger, as Director of Facilities, was responsible for assessing all of the salaried employees under his supervision. Dellinger Aff. ¶ 5. At Dellinger's request Doner, Kettery's immediate supervisor, evaluated each of his subordinates based on the assessment form. Id. However, at the time of the assessment, Doner did not know that it was to be used as a part of the workforce reduction. Doner Aff. ¶ 7. Lloyd's overall score was a 9 out of a possible 19. See Plummer Aff. Ex. 3. Doner then discussed the results with Dellinger, including Lloyd's assessment, and confirmed that the results were consistent with Dellinger's understanding of each employee's performance. Dellinger Aff. ¶ 5. Dellinger did not think that Lloyd's low score was inconsistent with his past work performance. Id.
Once the managers completed the assessment forms, they were returned to the human resources department for evaluation. Plummer Aff. ¶¶ 8-9. The employees were then grouped together with others with similar responsibilities in their respective departments and ranked according to their overall scores. Id., ¶ 9; Dellinger Aff. ¶ 6; Nuckles Aff. ¶ 4. Human resources employees then counted up from the bottom of the list based on the director's prior determination of the number to be terminated from that area. Plummer Aff. ¶ 9; cf. Nuckles Aff. ¶ 5. Prior to the announcement, however, human resources employees reviewed the list of identified employees with the directors and managers to ensure that the lists were consistent with their assessments of their areas. Plummer Aff. ¶ 10; Nuckles Aff. ¶ 5.
Finally, on January 31, 2001, the terminations were announced. Plummer Aff. ¶ 11. Many white employees lost their jobs as a part of the reduction. Several of them had overall performance scores that were comparable to or slightly better than Lloyd's score. See Nuckles Aff. ¶ 13 (noting white employees with scores of 10 and 11 who lost their jobs). There were also several white employees who lost their jobs in the reduction but who had received superior annual performance evaluations. See id. Lloyd's position remained vacant until March 2002, when it was filled by an internal hire by a person who had 14 years of seniority. Kettery Aff. ¶ 10. Furthermore, Kettery testified that he was unaware of any employee who was terminated as a part of the January 2001 workforce reduction who was rehired. Id.; cf. Lloyd Dep. 222 (testifying that he personally did not know of anyone who was called back but that he believed some had been).
D. Collier's and Governor's Performance Evaluations of Lloyd
As of January 2001, John Collier's direct supervisor was John Lloyd, Sr., Lloyd's father. Collier Aff. ¶ 3; Lloyd, Sr. Aff. ¶ 3. During the year 2000, Collier had supervised Lloyd for a brief period of time. However, Collier testified that he was not assigned to evaluated Lloyd. Collier Aff. ¶ 3. At some point in January 2001, Lloyd Sr. approached Collier and indicated that he was afraid his son would be terminated in the upcoming workforce reduction. Id. As a result, Lloyd, Sr. asked Collier to complete a performance evaluation of Lloyd. Id.; Lloyd, Sr. Aff. ¶ 6. Collier testified that he felt pressured into giving Lloyd a very positive evaluation and that Lloyd, Sr. had "intimated that he expected [Collier] to give a positive review as well." Collier Aff. ¶ 4; cf. Lloyd, Sr. Aff. ¶ 6 (instructed Collier not to let the fact that Lloyd was his son influence Collier's performance review).
Collier testified that the positive evaluation he gave Lloyd on January 19, 2001 was not indicative of Lloyd's actual performance, which deserved a lower score. Collier Aff. ¶ 4. Rather, he testified that he had seen Lloyd sleeping on the job, that Lloyd was disorganized and had problems communicating with subordinates, that Lloyd's judgment skills were not strong, and that Lloyd often made poor decisions that inhibited the efficient operation of his area. Id., ¶ 5. Collier stated that since this was not an official evaluation, he did not discuss it with Lloyd or turn it into human resources. Rather, he gave the evaluation to Lloyd, Sr. Id., ¶ 4; see Lloyd, Sr. Aff. ¶ 6, Ex. F. For purposes of defendant's motion for summary judgment, the court must disregard Collier's disavowal of the positive evaluation and must assume that the evaluation accurately reflected Collier's honest and objective appraisal of Lloyd as an employee.
There is evidence in the record that another positive evaluation was also completed by Leroy Governor, Lloyd's midnight shift supervisor. This evaluation was also done at the request of Lloyd, Sr., who was also Governor's immediate supervisor. Lloyd, Sr. Aff. ¶ 6, Ex. C. Lloyd, Sr. testified that he delivered these appraisals to Dellinger, id., ¶ 6, but there is no evidence that Dellinger even saw them, let alone that he or anyone else considered them in making decisions regarding the reduction in force.
Additional facts are noted below, keeping in mind the standard for a motion for summary judgment, which requires that all record evidence be viewed in the light reasonably most favorable to the plaintiff as the non-moving party.
IV. Discussion
Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual . . . because of such individual's race, color, religion, sex or national origin. . . ." 42 U.S.C § 2000e-2(a)(1). Title VII also prohibits an employer from retaliating against any employee because he has made a charge or otherwise participated in any proceeding under the Act. 42 U.S.C. § 2000e-3(a). Lloyd alleges that Rolls-Royce discriminated against him on the basis of his race and that Rolls-Royce retaliated against him.
A. Race Discrimination Claim — Termination
Lloyd has not offered any direct evidence of race discrimination in his termination. Accordingly, the court analyzes his claim under the three-step pattern of indirect proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, Lloyd must first come forward with evidence to support a prima facie case. For his discriminatory discharge claim, Lloyd must produce evidence that tends to show that (1) he is a member of a protected class; (2) he performed his job according to his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably by the defendant than a similarly situated employee outside of his protected class. Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 574 (7th Cir. 2003), citing Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002); see also Jackson v. E.J. Brach Corp., 176 F.3d 971, 982-83 (7th Cir. 1999).
The prima facie case is intended to identify circumstances in which a jury could infer that an employment decision, if not otherwise explained, was the product of illegal discrimination. See, e.g., Stockett v. Muncie Indiana Transit System, 221 F.3d 997, 1001 (7th Cir. 2000). However, if the employer can then merely articulate a legitimate, non-discriminatory reason for its decision, that step shifts the burden back to the plaintiff to show that the employer's stated reason is a pretext, that is, a false explanation for the decision. Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000). If the explanation was false, a trier of fact is permitted to infer that the real reason was an unlawful discriminatory reason.
Typically in a reduction in force, "an employer permanently eliminates a position from the workplace." Krchnavy, 294 F.3d at 875-76, citing Bellaver v. Quanex Corp., 200 F.3d 485, 494 (7th Cir. 2000). Because the position has been removed, it is not refilled and there is no need to assign the duties of that position to other employees. While neither party has addressed the issue, this case appears to be a true reduction in force, as opposed to a "mini" reduction in force, because Lloyd's position remained open until March 2002 and there is no evidence indicating that Lloyd's duties were absorbed by the remaining employees. Krchnavy, 294 F.3d at 876 (in "mini" reduction-in-force cases, plaintiff must "demonstrate that his duties were absorbed by employees who were not members of the protected class"), citing Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 693 (7th Cir. 2000); see Kettery Aff. ¶ 10. Thus, Lloyd must demonstrate "that other similarly situated employees who were not members of the protected class were treated more favorably." Michas, 209 F.3d at 693.
1. The Prima Facie Case
Lloyd's race discrimination claim fails because he cannot establish a prima facie case. Lloyd has not come forward with any evidence to establish the fourth element of his prima facie case: that a similarly situated non-African-American employee was treated more favorably than he was.
To meet his burden under the fourth element, Lloyd needed to come forward with evidence that the defendant treated more favorably someone who was directly comparable to himself "in all material respects." Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002), quoting Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). In workforce reduction cases, a plaintiff alleging that another employee was treated more favorably must demonstrate, "at a minimum that the retained . . . employees possessed analogous attributes, experience, education, and qualifications relevant to the positions." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000) (citations omitted); see also Zaccagnini v. Chas. Levy Circulating Co., ___ F.3d ___, ___, 2003 WL 21741636, *2-3 (7th Cir. July 29, 2003) (court centers its "analysis on characteristics such as education, experience, performance, qualifications, and conduct").
Lloyd simply has not come forward with evidence of any similarly situated employees for comparisons. The closest Lloyd comes to identifying any similarly situated employee is in his father's first affidavit, which states that Lloyd could have replaced Sharon Evans, a black supervisor, and that Kim Upchurch, a white male, was given the opportunity to transfer to a position in Evansville. Lloyd, Sr. Aff. ¶ 9. The comparison to Sharon Evans fails for one obvious reason. Better treatment of someone else of the same race does nothing to prove race discrimination. As for the comparison to Upchurch, Lloyd has not directed the court to any evidence that would allow a reasonable jury to find that Upchurch "possessed analogous attributes, experience, education, and qualifications." Radue, 219 F.3d at 618. Furthermore, Dellinger testified without contradiction that the decision to reduce the NDT department by one position was made when it was already known that Upchurch would be transferring, and that his transfer would not reduce total staff. Dellinger Supp. Aff. ¶ 4. There is no genuine dispute over that fact. Since Lloyd has no direct evidence of racial discrimination and has not come forward with evidence of similarly situated non-black employees who were treated better, Rolls-Royce is entitled to summary judgment on Lloyd's claim of racial discrimination in his termination.
2. Pretext
Rolls-Royce would be entitled to summary judgment even if Lloyd had shown a prima facie case. Rolls-Royce articulated legitimate reasons for including Lloyd in the January 31, 2001 workforce reduction. Rolls-Royce has presented evidence showing that Lloyd had consistently received low performance evaluation scores and that he was the lowest ranked individual in his department. This assertion is supported by the evidence demonstrating that Lloyd had recently gone through remedial training to improve his supervisory skills, something that had never before been done in the NDT department. See Doner Aff. ¶ 6. As a result of these performance problems, Lloyd received a low score on the assessment form that was used to determine which employees would be terminated.
It is undisputed that the January 31, 2001 workforce reduction itself occurred because of Rolls-Royce's financial difficulties, and not because of any improper motive. See Plummer Aff. ¶ 5.
Even if Lloyd had established a prima facie case, Rolls-Royce's statement of legitimate reasons for including Lloyd in the workforce reduction requires Lloyd to come forward with evidence of pretext to avoid summary judgment. To do so, Lloyd must come forward with evidence that would allow a reasonable jury to find that defendant's proffered reasons were lies or were completely lacking in factual basis. Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 574 (7th Cir. 2003); Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000); Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000).
Lloyd has not offered actual evidence that would allow a reasonable jury to find that Rolls-Royce lied about the reason it included Lloyd in the workforce reduction. See Schuster, 327 F.3d at 574 ("we deal with small gradations, with an employer's subjective comparison of one employee to another, and it is incumbent upon us to remember that what is at issue is not the wisdom of an employer's decision, but the genuineness of the employer's motives"). An employer's erroneous decision or poor business judgment is not sufficient to establish pretext. See Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1031 (7th Cir. 1998). Thus, even if the defendant made a poor decision to include Lloyd in the workforce reduction based on a performance assessment completed by one of Lloyd's former supervisors, that decision was not pretextual unless there is evidence that Rolls-Royce was dishonest about its reasons.
In an effort to show pretext, plaintiff Lloyd relies on the most unusual evidence in this case: the performance evaluation of "superior" by Collier that was prepared two weeks before the reduction in force — at the request of Lloyd, Sr., Collier's boss (who told Collier that the fact that he was evaluating his boss's son should not affect his evaluation). Collier has testified since then that he felt pressured by Lloyd, Sr. to give a very positive review, and he disavowed that review. Though this evidence would be interesting at trial, the court must assume for purposes of summary judgment that the Collier evaluation was honest and not the result of pressure from Lloyd, Sr. Even when viewed in that light, the Collier evaluation does not support a finding of pretext. The undisputed evidence demonstrates that Lloyd had a history of performance problems, ranging from sleeping on the job to low productivity. See Doner Aff. ¶¶ 5-6; Kettery Aff. ¶¶ 7-9.
Thus, assuming for purposes of summary judgment that Collier himself honestly believed his favorable evaluation, a reasonable juror could not conclude that Doner's and Kettery's January performance evaluations of Lloyd were dishonest, or that Dellinger's concurrence was dishonest. It is undisputed that annual performance evaluations were not used or referred to for the purpose of completing the workforce reduction assessment forms. Nuckles Aff. ¶ 3. There is no evidence that Collier's evaluation was even considered in the decision to include Lloyd in the reduction in force. The fact that others in the company (whether they worked for Lloyd's father or not) viewed Lloyd's performance more favorably than the relevant decision-makers does not undermine the honesty of the evaluations used to identify targets of the reduction in force. E.g., Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1291-92 (7th Cir. 1997) (favorable review by one supervisor did not create triable issue of pretext regarding decision to terminate for poor performance); see also Abioye v. Sundstrand Corp., 164 F.3d 364, 369 (7th Cir. 1998) (favorable affidavits from plaintiff's mentor and former supervisor did not create triable issue of pretext on decision to terminate plaintiff for poor performance).
Thus, Lloyd has failed to put forth evidence that would support a finding that Rolls-Royce's reasons for including him in the workforce reduction were a pretext for race discrimination. Accordingly, for this reason, also, defendant Rolls-Royce is entitled to summary judgment on Lloyd's claim of discriminatory termination.
B. Retaliation Claim
In his complaint, Lloyd also asserts a claim for retaliation. However, Lloyd did not respond to Rolls-Royce's motion for summary judgment on this claim. Rule 56(e) states that "[i]f the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e); Glass v. Dachel, 2 F.3d 733, 739 (7th Cir. 1993). The effect of that failure to respond is that plaintiff admitted that no material issue of fact exists. Glass, 2 F.3d at 739. Lloyd has abandoned his retaliation claim. Based on the undisputed facts, Rolls-Royce is entitled to judgment as a matter of law. The only protected activity in which Lloyd engaged was filing his EEOC charge after his termination. He has not come forward with any evidence that Rolls-Royce took any adverse action against him after that protected activity, let alone evidence that would support a finding of causation. See, e.g., Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002) (plaintiff must come forward with evidence demonstrating that he engaged in statutorily protected activity, performed his job according to employer's legitimate expectations, suffered a materially adverse action, and was treated less favorably than a similarly situated employee), citing Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 642-43 (7th Cir. 2002). Accordingly, Rolls-Royce is entitled to summary judgment on the retaliation claim.
V. Conclusion
For the foregoing reasons, defendant's motion for summary judgement is granted on all claims. Final judgment shall be entered accordingly.
So ordered.