Opinion
No. 98 C 3190
February 10, 2000
MEMORANDUM OPINION AND ORDER
Before the court are the parties' cross motions for summary judgment on: (1) Plaintiff's claimed violations of Title VII, 42 U.S.C. § 2000 et seq.; (2) Plaintiff's supplemental breach of contract claim; and (3) Defendant's counterclaim of assault. For the following reasons, the court grants summary judgment in favor of Defendant on all counts of Plaintiff's complaint, and grants summary judgment in favor of Plaintiff on Defendant's counterclaim.
I. BACKGROUND
The court takes the facts from the parties' Local Rule 12 statements, and the parties' briefs. This court strictly applies Local Rule 12, which requires parties to submit a record and make specific references to the portion of the record relied upon for the facts asserted. See Bell, Boyd Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir. 1990); see also Huff v. Uarco, Inc., 122 F.3d 374, 382 (7th Cir. 1997). In this case, Plaintiff violates Local Rule 12 by making factual allegations without citation to the record. The court is not obliged to "scour the record" to find Plaintiff's evidence, and declines to do so in this case. See Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). Accordingly, the court outlines only those facts that are supported by the record. Factual disputes are noted in the text.
On September 1, 1999, Local Rule 12(m) and 12(n) were renumbered to Local Rule 56.1(a) and 56.1(b). Consistent with the parties' submissions, the court cites the former numbering system in this opinion.
Plaintiff, Robert Merheb, was born in Lebanon, and immigrated to the United States in 1977. This case arises from Merheb's termination from his employment in the accounts payable department of the Illinois State Toll Highway Authority ("Authority").
Merheb began working at the Authority in 1990 as an internal auditor. In February 1997, Merheb filed a discrimination charge with the Illinois Department of Human Resources, which he and the Authority settled in July 1997. As part of the settlement, the Authority agreed to use "progressive discipline" as set forth in the Authority's personnel policy to impose any discipline against Merheb. The settlement agreement states, in relevant part:
[The Authority] agrees that, if it deems that Robert Merheb has committed any infraction in his new position warranting discipline, only progressive discipline, as set forth in section G of the [Authority's] Personnel Policies and Procedure Manual, shall be used to correct the alleged improper behavior.
(R. 19 Ex. D, ¶ 11.) Section G of the Authority's personnel policy, in turn, states:
The levels of disciplinary action generally utilized by the Authority are:
A. Oral reprimands are used for relatively minor infractions or performance problems, and must be documented by supervisors for the employee's personnel file and copy to the employee.
B. Written reprimands are used under circumstances when an oral reprimand is insufficient or has not resulted in corrective actions by the employee. Written reprimands are shown to and signed by the employee. This documentation is included in the employee's personnel file and a copy of the documentation is given to the employee. A refusal to sign disciplinary documentation does not negate receipt of, and action resulting form [sic] such documentation. A refusal to sign disciplinary documentation does not preclude a supervisor from acknowledging that the employee has been counseled on proper procedures and performance.
C. Suspension from duty without pay is appropriate after a reprimand has been utilized without success or when the gravity of the offense indicates a more stringent initial corrective action.
D. Discharge is initiated when other corrective measures have failed or if the gravity of the offense warrants such action.
(R. 19 Ex. R.)
Also as part of the settlement, the Authority transferred Merheb from his internal auditing position to the Authority's accounts payable department. According to Merheb, when he transferred to accounts payable in July 1997, the Authority's Executive Director, Ralph Wehner, made statements indicating an intent to fire him. Merheb claims that Wehner told Merheb's internal auditing supervisor "I've gotten rid of your problem," and that Wehner was "working on" getting rid of Merheb from the Authority altogether. (R. 21 pg. 3, ¶ 3.) Wehner denies making these statements.
Soon after Merheb began working in accounts payable, he began to clash with his supervisor, Sharon Conrad. The parties agree that Conrad was responsible for reviewing Merheb's work and correcting any mistakes. According to Merheb, Conrad was rude, impolite, and unkind to him. Merheb contends that Conrad yelled at him, insulted him, and encouraged his co-workers to mistreat him. Merheb also claims that Conrad went through his desk after hours and pulled out files. Merheb asserts that he was the only person subject to this treatment by Conrad. Conrad denies the allegations, but admits that she is abrupt in dealing with people, and believes that Merheb has difficulty accepting instructions from a woman. The parties do not dispute that there was noticeable tension between Merheb and Conrad.
Merheb also claims that Conrad and others imitated his accent in his presence. Conrad and the Authority deny this allegation, but admit that persons in the accounts payable department imitate television character accents, along with British and French accents. Merheb further points out that Conrad referred to two of Merheb's co-workers as "her little Mexicans," and that the Authority counseled Conrad against making such references.
Merheb approached his and Conrad's supervisor, Terri Cairo, about his problems with Conrad. Cairo told Merheb he could go to her, or his co-workers, with any questions he may have. Shortly thereafter, Conrad decided that she was to field all of Merheb's questions, and told Merheb's co-workers to not answer his questions. Merheb also claims that after he spoke to Cairo, she began harassing him by "papering" his performance, and telling him of deficiencies in his work.
Neither party explains what is meant by "papering" an employee's performance.
Merheb further contends that he was harassed by Jim Wassell, a supervisor over Merheb, Cairo, and Conrad. According to Merheb, Wassell overheard Conrad's harassment but did not intervene. Merheb also claims: (1) that Wassell criticized Merheb's work and never gave Merheb any positive feedback; (2) Wassell required Merheb to prepare daily lists of his work, while other employees were not so required; and (3) Wassell told Conrad to check Merheb's work after hours.
Merheb also asserts that he was excluded from employee activities in the accounts payable department. The Authority denies this claim, and maintains that Merheb was invited to participate in employee functions, and that he did so.
Late in the day on Friday January 30, 1998, Merheb and Conrad were involved in a dispute, which appears to have arisen because Conrad corrected a mistake by Merheb. After the dispute, Merheb called the Authority's employee services manager, Susan Sinz, to complain about Conrad. During this phone call, Merheb was in his cubicle in the accounts payable department, and several other employees were nearby. Merheb was extremely agitated during the phone call, and allegedly said "If you don't do something about Sharon, I will." Several persons overheard Merheb's conversation with Sinz, and observed his demeanor. The Authority's controller, Mark Swidergal, testified that he saw and heard Merheb say "If you don't do something about Sharon, I will." (See R. 19 Ex. M, pp. 18-28.) Swidergal also testified that Merheb was loud and agitated during the episode, and that Swidergal was afraid that the situation would escalate into a physical interaction, where someone could get hurt. (See id.) Lee Ann Barajes, one of Merheb's co-workers, testified that she heard Merheb screaming into the phone, and that he said "If you don't do something about her, I will." (See R. 19 Ex. N, pp. 33-40.) Barajes testified that she thought Merheb might "go postal" because he had a wild look in his eyes that frightened her. (See id. at 37-38.) Maria Olivares, another of Merheb's co-workers, testified that she heard Merheb being very loud, and was frightened because she thought Merheb was going to "go after" somebody after he hung up the phone. (See R. 19 Ex. O, pp. 43-64.) Olivares further testified that she told Conrad to leave the area. (See id.) Jane Marcus, another of Merheb's co-workers, testified that she heard Merheb hollering on the phone, and heard him say "If you don't get rid of Sharon, I will." (See R. 19 Ex. Y, pp. 45-48.) Marcus ran to Swidergal's office after hearing Merheb's outburst. (See id.) Conrad also left Merheb's proximity, and went to Swidergal's office. Merheb denies that he told Sinz "If you don't do something about Sharon, I will," but does not deny his other behavior.
The Authority has a policy against workplace violence, which "prohibits acts or threats of violence by any current or former Authority employee against Authority employees, patrons, visitors or members of the public. The Authority will take disciplinary action, up to and including termination, against any Authority employee who commits an act of violence or engages in threatening behavior." (R. 19 Ex. S.)
On Monday February 2, 1998, Sinz had a meeting with Swidergal, Wassell, and the Authority's counsel, Tom Ciecko, about Merheb's outburst. The group decided to terminate Merheb because of the threatening nature of his conduct. (See R. 31 Ex. 3, pp. 164-5.) None of these persons reviewed the 1997 settlement agreement between Merheb and the Authority before reaching the decision to terminate Merheb. After the meeting, Sinz and Wassell met with Merheb to tell him of their decision.
On May 22, 1998 Merheb filed a four count complaint against the Authority. Count I seeks relief under Title VII, where Merheb asserts he was terminated because of his national origin. In count II, Merheb claims that his termination violates Title VII because it was in retaliation for the discrimination charges he brought in February 1997. Count III is another Title VII claim, where Merheb maintains that he was terminated because of his gender. Count IV is a supplemental claim for breach of contract, which is based on the settlement agreement between Merheb and the Authority. Specifically, Merheb claims that the Authority's decision to fire him breached the Authority's promise to use only progressive discipline with Merheb.
The Authority answered the complaint, and also brought a counterclaim for assault asserting that Merheb's actions on January 30, 1998 were an assault against Conrad that caused approximately $5,000.00 in damages due to lost employee time.
Both parties now move for summary judgment. The Authority argues that it is entitled to summary judgment because Merheb cannot demonstrate a prima facie case of employment discrimination. Alternatively, the Authority argues that Merheb's threatening behavior on January 30, 1998 is a legitimate business reason for terminating him. The Authority also claims that there is no issue of fact on the counterclaim, and it is entitled to judgment as a matter of law.
Merheb counters that he presents sufficient evidence of discrimination to establish his prima facie case, and that the Authority's claimed reason for terminating him is a mere pretext for illegal discrimination. Thus, Merheb argues that a jury should resolve the Title VII claims. Merheb also argues that he is entitled to summary judgment on his breach of contract claim because there is no question that the Authority breached the settlement agreement. Finally, Merheb argues that he entitled to summary judgment on the Authority's assault claim because the Authority cannot maintain the action.
I. DISCUSSION
A. Standard for Summary Judgment
Summary judgment is permissible when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999). Put another way, summary judgment is the stage of a lawsuit where a party must present evidence that could convince a trier of fact to accept his version of events. See Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) (citing Schacht v. Wisconsin Dep't of Corrections, 175 F.3d 497, 503-04 (7th Cir. 1999)). In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Fed.R.Civ.P. 56(c), see also Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), see also, First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). With these principles in mind, the court examines the parties' motions.
B. Discrimination Claims
Merheb claims that he was the victim of disparate treatment. Thus, Merheb bears the ultimate burden of proving that the Authority intentionally took an adverse employment action against him because of his national origin and gender. See Cianci v. Pettibone Corp., 152 F.3d 723, 726 (7th Cir. 1998). In order to avoid summary judgment, Merheb could present either direct evidence of discrimination, such as a "smoking gun" admission, or present indirect evidence under the three-step burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997). Under either method, Merheb must demonstrate that, but for his national origin or age, the Authority would not have terminated him. See Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1290 n. 8 (7th Cir. 1997). Merheb claims that he has both direct and indirect evidence of discrimination, which the court will address in turn.
First, the court finds Merheb's claim of direct evidence to be without merit. As noted above, direct evidence is "smoking gun" evidence of intentional discrimination. See Wallace, 103 F.3d at 1397. The Seventh Circuit has defined direct evidence as evidence which, "if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." See Bahl, 115 F.3d at 1290 n. 6 (citing Plair, 105 F.3d at 347). An example of direct evidence is a statement from the persons responsible for the adverse employment action that they did so because of impermissible factors. See Robin v. Espo Eng'g. Corp., ___ F.3d ___, 2000 WL 28121 at *4 (7th Cir. January 13, 1999) (noting that direct evidence in an age case would be "I fired you because of your age"). Direct evidence must also be temporally related to the termination. See id. at *4.5. Such evidence is extremely rare because employers are understandably cautious about discrimination claims. See Castleman v. Acme Boot Co., 959 F.2d 1417, 1420 (7th Cir. 1992).
Merheb's "direct evidence" is limited to: (1) Wehner's statement in July 1997 that he was working on getting rid of Merheb; (2) the treatment to which Merheb was subjected; and (3) the fact that Conrad referred to two of Merheb's co-workers as "her little Mexicans." This evidence does not meet the "smoking gun" standards of direct evidence. First, and most obvious, is that the evidence does not demonstrate that Sinz, Swidergal, Wassell and Ciecko fired Merheb because of his national origin or gender. Indeed, none of the evidence involves Sinz, Swidergal, Wassell or Ciecko at all. The evidence requires an inference of discrimination, and as such is not direct evidence. See Bahl, 115 F.3d at 1290 n. 6. Further, the evidence is not temporally related to the decision to fire Merheb, as required of direct evidence. See Robin, 2000 WL 28121 at *4-5. Therefore, the court finds that Merheb presents no direct evidence of illegal discrimination.
Turning to Merheb's indirect evidence of discrimination, underMcDonnell Douglas, Merheb must first establish his prima facie case by demonstrating that: (1) Merheb is a member of a protected group; (2) Merheb met the Authority's legitimate work expectations; (3) the Authority terminated Merheb's employment; and (4) the Authority treated persons outside of the protected class more favorably. See Robin 2000 WL 28121 at *5. Once Merheb establishes his prima facie case, a rebuttable presumption is created that the Authority's decision to terminate him was based on the consideration of impermissible factors. See DeLuca v. Winer Industries, 53 F.3d 793, 797 (7th Cir. 1995). "[T]he burden of production (not proof) then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action." Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 377-78 (7th Cir. 1995). If the employer provides a legitimate business explanation, the presumption of discrimination dissolves, and the burden shifts back to the plaintiff to show that the employer's proffered reasons are a pretext for the alleged discrimination.See id. at 378.
To argue his prima facie case, Merheb claims that the following incidents are evidence of harassment against him because he is Lebanese and male: (1) Conrad imitated a thick accent in front of Merheb; (2) other employees were allowed to imitate thick accents, despite Merheb's complaints to management; (3) Conrad believes that Merheb had difficulty accepting instructions from women; (4) Merheb was excluded from department activities; (5) Merheb's co-workers were instructed not to answer his questions; (6) Merheb was the only employee required to prepare daily work lists; (7) Merheb was the only person subject to screaming from Conrad; (8) Conrad went into Merheb's desk after hours; (9) Merheb was closely monitored from the beginning of his assignment in accounts payable; and (10) no other employees were treated as Merheb was treated. The Authority counters that Merheb does not establish a prima facie case because he continually failed to meet the Authority's legitimate work expectations. As outlined below, the court assumes that Merheb presents a prima facie case of discrimination, and need not analyze the issue.
The McDonnell Douglas framework does not require a court to address the prima facie case issue; it may assume that Merheb satisfies the requirements for a prima facie case and proceed to the question of whether he succeeds in demonstrating pretext. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999) (assuming that plaintiff met burden of establishing prima facie case and deciding the matter on pretext issue); Debs v. Northeastern Ill. Univ., 153 F.3d 390, 395 (7th Cir. 1998) (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.")); Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 135 (7th Cir. 1985) ("[T]he prima facie threshold is no longer a relevant issue once the defendant has come forward with evidence of legitimate reasons for its actions that would rebut a prima facie showing of discrimination."). The court finds that the case at bar is more appropriately decided on its pretext arguments. Thus, even though the Authority disputes that Merheb establishes a prima facie case, the court assumes Merheb does so and proceeds to examine the issue of pretext.
The Authority asserts that it has a legitimate business reason for terminating Plaintiff — gross insubordination and threatening behavior. The Authority has a policy against workplace violence, which prohibits employees from engaging in threatening behavior, and which is sanctionable by termination. (See R. 19 Ex. S.) Under this policy, it is not necessary for the inappropriate conduct to rise to the level of criminal behavior. (See id.) The Authority asserts that Merheb breached this policy during his phone conversation with Sinz on January 30, 1998. As support for this claim, the Authority presents evidence from Swidergal, Barajes, Olivares, and Marcus, who all testified that they observed Merheb's demeanor and found it threatening. For example, Swidergal testified that Merheb was loud and agitated during the episode, and that Swidergal was afraid that the situation would escalate into a physical altercation, where someone could get hurt. (See R. 19 Ex. M, pp. 18-28.) Barajes testified that she thought Merheb might "go postal," and that she was frightened by the wild look in his eyes. (See R. 19 Ex. N, pp. 37-38.) Olivares testified that she heard Merheb being very loud, and was frightened because she thought Merheb was going to go after somebody after he hung up the phone. (See R. 19 Ex. O, pp. 43-64.) Marcus testified that she ran to Swidergal's office after hearing Merheb's outburst. (See R. 19 Ex. Y, pp. 45-48.) Further, Sinz, Swidergal, Wassell and Ciecko met the next business day after Merheb's outburst and decided to fire Merheb because of his threatening behavior. (See R. 31 Ex. 3, pp. 164-65.) On this evidence, the court finds that the Authority has articulated a legitimate business reason for firing Merheb.
Thus, the dispositive issue is whether Merheb presents evidence that the Authority's claim of gross insubordination and threatening behavior is a mere pretext for illegal discrimination. To establish pretext, Merheb must demonstrate that the Authority's purported legitimate business reason is false. See Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 348 (7th Cir. 1997). "Pretext means a lie, specifically a phony reason for some action." Id. Merely casting doubt on an employer's stated reason for its employment decision is insufficient to establish pretext. See Weisbrot v. Medical College of Wis., 79 F.3d 677, 682 (7th Cir. 1996). Furthermore, the evidence used to establish pretext must squarely rebut the proffered legitimate business reason. See Plair 105 F.3d at 349 (analogizing that an employee discharged for poor attendance does not prove pretext by arguing that no other employee did the job better); see also Hughes v. Brown, 20 F.3d 745, 747 (7th Cir. 1994). To show pretext, Merheb may demonstrate: (1) the Authority's proffered reason is factually baseless; (2) the Authority's proffered reason was not the actual motivation for terminating Merheb; or (3) the proffered reason was insufficient for termination. See Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996). Again, the ultimate burden of persuasion rests with, and never shifts from, the plaintiff at every point in the litigation process. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993).
C. Plaintiffs' Evidence of Pretext
Merheb makes two arguments to establish pretext. First, Merheb claims that he did not engage in the allegedly threatening behavior. Second, Merheb asserts that the Authority did not perform any investigation into the January 30, 1998 incident prior to firing Merheb. Neither argument has merit.
As a preliminary matter, Merheb comes close to waiving the pretext issue through his minimal treatment of the issue. "A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority, forfeits the point." Doe, By and Through G.S. v. Johnson, 52 F.3d 1448, 1457 (7th Cir. 1995); see also Littlefield v. McGuffey, 954 F.2d 1337, 1342 (7th Cir. 1992). In this case, Merheb fails to cite a single legal authority in support of his position. Further, Merheb makes only minimal citations to the record, and improperly speculates about facts that are not part of the record. Nevertheless, the court addresses Merheb's arguments.
First, Merheb fails to present evidence demonstrating that he did not engage in the threatening behavior. As noted earlier, summary judgment is the stage of a lawsuit where Merheb must present evidence that could convince a trier of fact to accept his version of events. See Shank, 192 F.3d at 682 (citingSchacht, 175 F.3d at 503-04). Merheb contends: (1) that he did not make the statement "If you don't do something about Sharon, I will"; (2) that he had never previously engaged in any type of threatening behavior during his employment at the Authority; and (3) that he did not threaten physical injury to anyone, or make threatening movements or gestures.
Merheb, however, fails to cite to any portion of the record to support his claim that he did not engage in the threatening conduct. Merheb also fails to present any evidence to account for his loud speaking, the "wild look" in his eyes, and the fact that his outburst caused no less than four persons to testify that they were frightened by Merheb's conduct. These same persons, Swidergal, Olivares, Barajes, and Marcus, also testified that they were concerned that Merheb was about to engage in physical violence. Merheb's bare, unsupported, denials of his actions are insufficient to rebut the deposition testimony of four witnesses.Cf. Rand v. CF Industries, Inc., 42 F.3d 1139, 1146-47 (7th Cir. 1994) (holding that conclusions and speculations are insufficient to defeat summary judgment). In short, Merheb fails to meet his burden of demonstrating a triable question of fact because presents no evidence to support his claim that he did not engage in the threatening behavior.
Furthermore, the fact that Merheb has not previously engaged in violent behavior at the Authority is not relevant to the issue of whether Merheb engaged in inappropriate behavior on January 30, 1998. Federal Rule of Evidence 404(b) bars "[e]vidence of . . . [good] acts . . . [when introduced] to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). See United States v. Hill, 40 F.3d 164, 168 (7th Cir. 1994) (citing United States v. Camejo, 929 F.2d 610, 613 (11th Cir. 1991)), for the proposition that evidence of"good acts" as proof of "good character" is inadmissible character evidence). It appears that Merheb relies on the fact that he has not previously been violent as evidence to establish that he did not engage in the threatening behavior during the incident in question. The court rejects this proffer as irrelevant, and finds that Merheb fails to present evidence demonstrating that he did not engage in the threatening outburst.
Merheb further argues that if the authority had investigated the incident, testimony of unnamed co-employees would have shown that Merheb did not make physical or verbal threats. Again, Merheb does not cite to any portion of the record to support this claim. The evidence that is in the record demonstrates that Merheb's co-workers were, in fact, frightened by Merheb's outburst. For instance, Swidergal was afraid that the situation would escalate to the point where someone could get hurt. (See R. 19 Ex. M, pp. 18-28.) Barajes was frightened by the wild look in Merheb's eyes. (See R. 19 Ex. N, pp. 37-38.) Olivares thought Merheb was going to go after somebody after he hung up the phone. (See R. 19 Ex. O, pp. 43-64.) Therefore, the court finds Merheb's argument that a pre-termination investigation would have demonstrated that he did not engage in the threatening conduct to be without merit.
Finally, although it is not clear from the briefs, Merheb seems to assert that Conrad exhibits a discriminatory attitude towards minorities, relying on Conrad's reference to two of Merheb's co-workers as "her little Mexicans." "To be probative of discrimination, isolated comments must be contemporaneous with the discharge or causally related to the discharge decision making process." Bellaver v. Quanex Corp., ___ F.3d ___, 2000 WL 30070 at *6 (7th Cir. January 18, 2000) (quoting Geir v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996)); see also O'Connor v. DePaul University, 123 F.3d 665, 671-72 (7th Cir. 1997) (noting that stray remarks made by the decision maker may be relevant to pretext under McDonnell Douglas). Such stray remarks must be analyzed in the context of all the evidence, and cannot stand alone as evidence of pretext. See O'Connor, 123 F.3d at 672; see also Indurante v. Local 705, Int'l Brotherhood of Teamsters, 160 F.3d 364, 367-68 (7th Cir. 1998); Huff, 122 F.3d at 383-86. Therefore, in order to demonstrate pretext, Merheb must: (1) establish that Conrad's "little Mexican" remarks were made by a decision maker, or were contemporaneous with his termination; and (2) present additional evidence of discrimination. As outlined below, Merheb fails to do so.
First, Conrad did not make the "little Mexican" remarks in reference to Merheb or persons of Lebanese descent, so it is unclear how the reference could be evidence of a discriminatory animus towards Merheb. Second, Conrad was not a decision maker in Merheb's termination. Therefore, her remarks are not evidence of pretext, unless the remarks were contemporaneous with Merheb's termination. See O'Connor, 123 F.3d at 671-72; see also Geir, 99 F.3d at 242. Merheb, however, fails to provide any evidence about the timing of the remark, although it his burden to do so. Next, Merheb fails to present any other evidence of pretext, and stray remarks alone cannot establish pretext. See Indurante, 160 F.3d at 367-68; Huff, 122 F.3d at 383-86. On these facts, the court finds that Conrad's stray remarks are not evidence of pretext.
In sum, the court assumes that Merheb presents a prima facie case of discrimination, and that the Authority has articulated a legitimate business reason for terminating Merheb. The court also finds that Merheb fails to demonstrate that the Authority's reason for terminating him was a mere pretext to discriminate against him because he is Lebanese and male. Accordingly, the court finds that the Authority is entitled to summary judgment on Count I (national origin discrimination) and Count III (gender discrimination).
D. Retaliation Claim
Merheb also claims that his termination is illegal retaliation for his earlier discrimination claim with the Illinois Department of Human Resources. A retaliation claim exists when: (1) the employee engaged in statutorily protected expression; (2) the employee suffered an adverse action by the employer, and (3) there is a causal link between the protected expression and the adverse action. See Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996). Again, under the McDonnell Douglas burden shifting analysis, once Merheb presents a prima facie case, the burden shifts to the Authority to articulate a legitimate business reason for the termination. See McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 483 (7th Cir. 1996). If the Authority does so, the burden shifts back to Merheb to demonstrate that the proffered legitimate reason is pretextual. See id.
The issue here is whether Merheb can demonstrate that his termination is causally linked to his discrimination charge, because the Authority admits that Merheb's discrimination charge is protected speech and that his termination is an adverse employment action. To satisfy the causal link, Merheb must demonstrate that the adverse action is "not wholly unrelated" to the protected activity. See Hunt-Golliday v. Metropolitan Water, 104 F.3d 1004, 1014 (7th Cir. 1997); but see McKenzie, 92 F.3d 473 (holding that the plaintiff must establish that the adverse action would not have occurred "but for" the protected speech). A close temporal link, in which the adverse employment action comes close on the heels of the protected speech can establish causation. See Sweeny v. West, 149 F.3d 550, 557 (7th Cir. 1998) (noting that an adverse action occurring one day or one week after the protected speech would establish the required nexus). Put another way, as the time between the protected speech and the adverse action increases, it is less likely that there is a causal link between the two. See McKenzie, 92 F.3d at 485. When there is a significant gap in timing, the plaintiff must present additional evidence of causation. See id.; see also Pierce v. Martin, No. 96 C 4046, 1997 WL 802104 at *7 (N.D. Ill. December 30, 1997) (and cases cited therein). The additional evidence can be found if the plaintiff presents evidence demonstrating a pattern of criticism and animosity by supervisors following the protected speech. See Hunt-Golliday, 104 F.3d at 1014.
Merheb claims that the necessary causation is established by Wehner's statement that he was "working on" getting rid of Merheb shortly after Merheb and the Authority settled Merheb's 1997 discrimination charge. Merheb further contends that he was subject to close scrutiny by Conrad after he transferred to accounts payable. On these facts, Merheb concludes that the Authority decided to make Merheb's working conditions intolerable because he filed the discrimination charge.
The court finds that Merheb at least raises a question about his prima facie case, but ultimately fails to defeat the Authority's motion for summary judgment. First, Merheb's reliance on Wehner's statement is not persuasive by itself. The termination came almost a year after Merheb's filing of his discrimination charge, and six months after Wehner's statement. Such a lengthy delay is not the telling sequence of events that can establish the causal link without additional evidence of retaliatory conduct. See Sweeny, 149 F.3d at 557; see also McKenzie, 92 F.3d at 485. Merheb provides the additional evidence of retaliatory conduct with his assertion that Conrad closely monitored Merheb after his transfer to accounts payable. As the Seventh Circuit iterated in Hunt-Golliday, a pattern of animosity and criticism occurring after an employee engages in protected speech is evidence of causation. See Hunt-Golliday, 104 F.3d at 1014. Therefore, the court cannot say, as a matter of law, that Merheb fails to raise a question about the causation element.
Nevertheless, the court finds that the Authority is entitled to summary judgment on this issue. As noted above, once Merheb demonstrates his prima facie case, the burden shifts to the Authority to articulate a legitimate business reason for the termination. See McKenzie, 92 F.3d at 483. If the Authority presents such a reason, the burden shifts back to Merheb to demonstrate that the proffered reason is pretextual. See id. The Authority maintains that the only reason that Merheb was terminated was because of his threatening conduct on January 30 1998, and presents ample evidence to support its position. The court's previous discussion of the testimony from Swidergal, Olivares, Barajes and Marcus demonstrates that they observed Merheb's conduct and found it threatening. (See supra at 11-12.) Further, Sinz testified that she met with Swidergal, Wassell, and Ciecko to discuss the incident, and the group decided to terminate Merheb because of his threatening behavior. (See R. 31 Ex. 3, pp. 164-65.) On this evidence, the court finds that the Authority demonstrates a legitimate business reason for the termination.
In support of a finding of pretext, Merheb argues: (1) that he did not engage in the allegedly threatening behavior; and (2) that the Authority did not investigate the January 30, 1998 incident prior to firing Merheb. But, the court's earlier analysis of Merheb's pretext argument applies here as well. (See supra at 13-17.) As the court noted earlier, Merheb fails to present evidence demonstrating that he did not engage in the threatening behavior. (See id.) Merheb does not to cite to any portion of the record to support his claim, nor does he present any evidence to rebut the testimony of Swidergal, Olivares, Barajes, and Marcus, who all testified that they were frightened by Merheb's conduct and were concerned that Merheb was about to engage in physical violence. In short, Merheb fails present a triable question of fact about the existence of his threatening conduct.
Further, Merheb's assertion that an investigation would have shown that Merheb did not make physical or verbal threats is without merit. The record establishes that Merheb's outburst frightened his co-workers, and led them to believe that he was going to become violent. (See supra at 11-12.). Finally, Merheb fails to demonstrate that Conrad had a discriminatory animus towards him because the allegedly discriminatory remarks were not directed to Merheb, and they were not temporally related to his termination. (See supra at 15-17.) Therefore, the court finds that Merheb does not raise a triable question of fact as to whether the Authority's claimed reason for terminating him was a pretext for terminating him in retaliation for his earlier discrimination claim.
E. Supplemental claims
The only remaining claims are the parties' supplemental claims. The court has discretion not to exercise its supplemental jurisdiction after resolving all federal claims. See 28 U.S.C. § 1367. Nevertheless, the court finds the supplemental issues to be easily resolved, and disposes of them at this time.
1. Breach of Contract
The first supplemental claim is Merheb's assertion that the Authority breached its contract with him by failing to follow the progressive discipline rules outlined in the Authority's personnel policy. The court finds Merheb's argument to be without merit.
The court assumes, without deciding, that the 1997 settlement agreement between Merheb and the Authority constitutes a binding contract. The portion of the agreement at issue states:
[The Authority] agrees that, if it deems that Robert Merheb has committed any infraction in his new position warranting discipline, only progressive discipline, as set forth in section G of the [Authority's] Personnel Policies and Procedure Manual, shall be used to correct the alleged improper behavior.
(R. 19 Ex. D, ¶ 11.) (emphasis added). Section G of the Authority's personnel policy states, in relevant part: "Discharge is initiated when other corrective measures have failed or if the gravity of the offense warrants such action." (R. 19 Ex. R.)
Merheb's argument focuses on the term "only progressive discipline." According to Merheb, the clause "as set forth in section G of the Authority's Personnel Policies and Procedure Manual" is parenthetical, and thus irrelevant. In other words, Merheb claims that only progressive discipline can be used against him, notwithstanding that the Authority's progressive discipline rules allows for termination is the gravity of the infraction warrants such action.
The court rejects Merheb's argument. In construing a contract, the court is to give effect to the plain meaning of the contract language. See Dunlap v. Illinois Founders Ins. Co., 621 N.E.2d 102, 106 (Ill.App.Ct. 1993). Here, the language is crystal clear. Merheb and the Authority agreed that, if discipline is necessary, the Authority will use progressive discipline, as set forth in Section G of the Authority's personnel policy. Section G of the Authority's personnel policy, in turn, allows the Authority to terminate employees for serious infractions. Furthermore, the Authority's policy against workplace violence prohibits acts or threats of violence, and allows for termination of any employee who commits an act of violence or engages in threatening behavior. (See R. 19 Ex. S.) In Merheb's case, several persons observed Merheb's behavior and found it threatening. The Authority then reviewed Merheb's conduct, and determined it was severe enough to warrant termination of the four persons that decided to terminate Merheb, three (Sinz, Wassell and Swidergal) had personal knowledge of Merheb's conduct. Thus, the Authority demonstrates that the decision to terminate Merheb was within the Authority's personnel policy, and within the terms of the settlement agreement between Merheb and the Authority. On this record, the court will not second guess the Authority's decision. See McCoy v. WGN Continental Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992) (noting that federal courts do not "sit as a super-personnel department that reexamines an entity's business decisions").
Merheb's reading of the settlement agreement would require the court to strip the Authority of the power to deal with workplace violence in an immediate and decisive maimer. The plain language of the settlement agreement does not specify such a result, and the court will not construe the settlement agreement in such a manner. The Authority is entitled to summary judgment on this issue.
2. Assault
The next supplemental claim is the Authority's counterclaim for assault. As outlined below, the court finds, as a matter of law, that the Authority cannot recover for assault, and enters summary judgment in favor of Merheb.
Under Illinois law, an assault is an intentional offer of a corporal injury, which creates a well-founded fear of imminent peril, coupled with the present ability to effect the injury. See Parrish v. Donahue, 443 N.E.2d 786, 788 (Ill.App.Ct. 1982). In this case, the Authority argues that Merheb's actions on January 30, 1998 constitute an assault on Conrad, for which the Authority is entitled to recover damages. The court finds the Authority's position to be without merit.
First, the Authority fails to demonstrate that an assault occurred. Merheb's conduct, as presented by the Authority, does not constitute an assault. The Authority presents no facts demonstrating that Merheb made any intentional offer of a corporal injury, or that Conrad was in peril of receiving an imminent corporal injury from Merheb. Merheb's conduct was threatening, in the sense that several persons testified that they were afraid that Merheb was going to become violent. This fear is quite different from Merheb actually becoming violent, and attempting to injure someone. Cf. People v. Floyd, 663 N.E.2d 74, 76 (Ill.App.Ct. 1996) (criminal case, noting that words alone are not enough to constitute an assault). Therefore, the court finds that the Authority fails to present evidence demonstrating that it is entitled to summary judgment on this point.
Furthermore, the Authority cannot state a claim for assault. Although a corporation can be a legal entity for some purposes, it cannot, as a matter of law, be a person for the purposes of the tort of assault. See Ntron Int'l Sales Co., Inc. v. Carroll, 714 F. Supp. 335, 339 (N.D. Ill. 1989). In Ntron, Judge Roszkowski discussed a claim of assault asserted by a corporation, and found that the corporation did not have standing to maintain the claim.See id. at 338-39 (citing Restatement (Second) of Torts §§ 21, 22, 26). Judge Roszkowski noted that assault requires an apprehension of immediate contact, and found it hard to imagine how one could make contact with the "person" of a corporation.See Ntron, 714 F. Supp. at 338. Those same concerns apply in this case. The court is unwilling to extend the common law of Illinois to encompass a juridical person's action for assault.
Finally, an assault claim cannot be raised on behalf of a third person. See id. Here, the Authority claims that it is entitled to recover for Merheb's assault of Conrad. Regardless of the merits of an assault claim by Conrad, the Authority cannot assert the claim on her behalf. See id. Accordingly, the court finds that Merheb is entitled to summary judgment on the Authority's counterclaim.
The Authority relies on Filmways Pictures, Inc. v. Marks Polarized Corp., 552 F. Supp. 863, 868 (S.D.N.Y. 1982) as authority for the proposition that it can maintain the assault claim. The court has reviewed Filmways, and finds it inapposite to the case at bar. The only support for the Authority's position is the statement that "damages to a corporation may be a foreseeable consequence of an assault upon a person, particularly . . . where the alleged assault is upon an employee which takes place in the employer's office during the working day." Id. The Filmways court does not cite any authority for this proposition, nor does the court analyze the issues of a corporation's standing to maintain an assault claim and the corporation's right to bring an assault claim on behalf of its employee. In contrast to Filmways, Judge Roszkowski's analysis inNtron thoroughly addresses these issues and finds that a corporation cannot maintain an assault claim, either on its own behalf or on behalf of an assaulted employee. See Ntron, 714 F. Supp. at 338-39 (N.D. Ill. 1989). The court finds the analysis from Ntron to be persuasive, and finds the Authority's reliance on Filmways to be unavailing.
III. CONCLUSION
For the foregoing reasons, the court grants summary judgment in favor of the Authority on all counts of Merheb's complaint. The court also grants summary judgment in favor of Merheb on the Authority's counterclaim. Case terminated.
IT IS SO ORDERED.