Summary
finding that the court possessed original jurisdiction over plaintiff's Title VII discrimination claim and supplemental jurisdiction over his state law breach of contract claim
Summary of this case from Nathan v. Morgan Stanley Renewable Dev. Fund, LLCOpinion
No. 99 C 50073
February 2, 2001
MEMORANDUM OPINION AND ORDER
Introduction
On March 8, 1999, plaintiff James Parker ("Parker") filed a four-count complaint against defendant Rockford Park District ("RPD"). In Counts I and II, Parker alleges RPD discharged him because of his race (African-American), in violation of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq. (Count I) and in violation of 42 U.S.C. § 1981 ("§ 1981") (Count II). In Count III, based on 42 U.S.C. § 1983 ("§ 1983") Parker alleges his discharge violated his procedural due process and equal protection rights under the Fourth and Fourteenth Amendments. In Count TV, a state law breach of contract claim, Parker alleges his discharge violated RPD's progressive discipline policy, a copy of which is attached to the complaint. Jurisdiction is proper pursuant to 28 U.S.C. § 1331, 1367 (a), and 42 U.S.C. § 2000e-5 (f)(3). Venue is proper as the events giving rise to Parker's allegations occurred in this district and division. 28 U.S.C. § 1391 (b). RPD has filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56.
Facts
Parker worked at RPD from 1990 until his termination on July 30, 1998. (LR56.1(a) ¶ 2) At the time of his discharge, Parker was a Senior Recreation Programmer at Washington Park Community Center. (Id. ¶ 5) Lenny Wright (African-American) was Parker's immediate supervisor, and Wright reported to Clarence Hicks (African-American), the Deputy Director of Recreation Services. (Id. ¶¶ 7-8, 11-12) Parker described his working relationship with Wright as "excellent," and Wright consistently evaluated Parker's work as excellent. (Id. ¶¶ 9-10)
In his position, Parker was responsible for offering programs for youth, teens, and adults. (Id. ¶ 13) As part of setting up activities, Parker was allowed to request and receive cash advances from Park District funds. (Id.) To get a cash advance, Parker would talk to Wright, who would approve the requisition for an activity. (LR56.1(b) ¶ 121) Upon spending the money, Parker would keep the receipts in a file folder. He would wait until Wright requested him to turn in his receipts, and routinely submitted receipts every three to six months. (Id. ¶ 122) He understood Park District policy was for him to save his receipts and turn then in periodically when requested. (Id. ¶ 124) Parker had turned in an expense report on January 27, 1998, with no problems, which Wright had approved. (LR56.1(a) ¶ 24)
On July 1, 1998, Todd McDonald, RPD's Financial Services Manager, sent Parker an interoffice memo requesting an expense report for four separate cash advances totaling $1,583. (Id. ¶¶ 26, 28) Parker gathered up his receipts and delivered them, along with his expense report, to McDonald on July 15, 1998. (Id. ¶ 29) His expense report showed his total expenses were $1,742.25. (Id. ¶ 32; Def. Exh. C) While the requisition forms which were the subject of Parker's expense report identify specific field trips on specific dates, dates on some of the receipts he submitted with the expense report did not correspond to the dates of the field trips. (LR56.1(a) ¶¶ 81-82) For example, Parker submitted a Gray's IGA receipt for $11.36 reflecting a purchase date of January 22, 1997, and another receipt for $21 dated November 26, 1997, which pre-dated the dates listed on the requisition forms. (Id. ¶¶ 83-84)
When McDonald received Parker's expense report, he noticed it did not have Wright's approval, normally a requirement for an expense report. (LR56.1(a) ¶ 35) He reviewed the receipts and could not reconcile the expense report with the receipts. (Id. ¶ 36) He then gave Parker's expense report to his boss, Steve Reichensperger, RPD's Chief Financial Officer. Reichensperger spent five or six hours reviewing Parker's expense report but could not make sense out of it. (Id. ¶ 38) He also thought some of the receipts did not seem to make sense as part of park district expenses. (Id.) For example, he could not understand how things like eggs or laundry detergent were anything that could be in support of RPD's programs at Washington Park. (Def. Exh. 6, Reichensperger dep., p. 20) He tried to put the receipts in chronological order but was unable to do so, and also found duplicate receipts. (LR56.1(a) ¶ 40) Reichensperger brought the expense report and receipts to Hicks and asked him to meet with Wright to find out if reasons existed for some of the claimed expenses. (Id. ¶ 39)
Hicks and Wright met to review Parker's expense report, and both agreed it did not look appropriate. (Id. ¶ 41) Wright saw receipts for food items, cleaning supplies, and movie rentals, although Parker claims Wright knew about all of Parker's expenses and approved them. (Id. ¶ 60) They met with Parker on July 28, 1998. At the meeting, Hicks stated, "This looks bad James. I ought to fire your black ass and put this in your permanent file. I'm going to give you two days off [sic] suspension without pay, and we're going to return and go over your receipts again." (LR56.1(b) ¶ 128; see also LR56.1(a) ¶ 43) Parker believed Hicks had a dispute with receipts totaling $9 and offered to pay the $9 because he did not want to lose his job over such a small amount. (LR56.1(b) ¶ 129) At the second meeting, Hicks, Wright, and Parker reviewed the receipts again, but nothing changed. (Def. Exh. 2, Parker dep., p. 119) Parker offered to pay any difference, but Hicks did not respond. (Id. p. 120)
Following this meeting, Hicks met with the other Deputy Directors (informally referred to as "the D Team"). (LR56.1(a) ¶ 72) Aside from Hicks, the other D Team members were Caucasian. (Id. ¶ 73) The decision was made to discharge Parker, although the parties dispute who made the decision. According to RPD, Hicks recommended termination at the D Team meeting and the other deputies agreed. According to Parker, Hicks later told him the D Team made the decision to fire him. In any event, it is clear from the record Hicks played a substantial role in the termination decision. Parker's position was later filled by Linda Jones (African-American). (Id. ¶ 79)
Preliminary Matters
Pursuant to Fed.R.Civ.P. 56(e), RPD has filed a motion to strike Parker's affidavit, which Parker submitted in response to RPD's Rule 56 motion. The court finds the majority of RPD's arguments go to the weight to be accorded Parker's statements, not their admissibility, as the court will discuss in more detail infra. RPD's motion to strike is granted with respect to paragraph 19 of the affidavit, as it impermissibly conflicts with a prior admission (which will be discussed infra). Its motion is denied in all other respects.
Analysis
Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir. 2000). A genuine issue of fact exists only when a reasonable jury could find for the nonmoving party based on the record as a whole. Bekker, 229 F.3d at 669. The court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110 (2000); EEOC v. Sears, Roebuck Co., 233 F.3d 432, 436 (7th Cir. 2000). However, a nonmoving party cannot survive summary judgment with merely a scintilla of evidence supporting its position.Sears, 233 F.3d at 437. A nonmoving party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion. Id.
A. Counts I and II — § 1981, Title VII
A § 1981 claim is analyzed under the same framework as a Title VII claim. Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999), cert. denied, 120 S.Ct. 2197 (2000).
In proving a case under § 1981 or Title VII, Parker can present direct evidence of discrimination or use the indirect, McDonnell Douglas burden-shifting approach. Pilditch v. Board of Educ., 3 F.3d 1113, 1115 (7th Cir. 1993), cert. denied, 510 U.S. 1116 (1994). Direct evidence is "`evidence which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption.'" Cowan v. Glenbrook Sec. Serv., Inc., 123 F.3d 438, 443 (7th Cir. 1997) (quoting Plair v. E.J. Brach Sons, INC., 105 F.3d 343, 347 (7th Cir. 1997)). Such evidence must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question. Id.
Here, Parker claims he has direct evidence of discrimination, namely, flicks' statement, "This looks bad. I ought to fire your black ass . . ." (LR56.1(b) ¶ 128) The court finds this does not constitute direct evidence of discrimination. While it is connected to Parker's termination, it does not indicate an acknowledgment of discriminatory intent. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring) (some benign references to race or gender are not direct evidence of discrimination; for example, a mere reference to "a lady candidate" might show that gender played a role in the decision but could not support a reasonable factfinder's inference that the decision was made "because of" gender); Crawford v. City of Kanas City., 952 F. Supp. 1467, 1476 (D. Kan. 1997) (police officer's statement, "I'm going to kill that black son-of-a-bitch" was descriptive rather than pejorative and, standing alone, was insufficient to show race-based animus for a § 1935(3) claim); Sampson v. Village Discount Outlet, Inc., 832 F. Supp. 1163, 1167 (N.D. Ill. 1993) (security officer's single racist remark, "I will show to you F___ing Jew, who I am!" did not sufficiently demonstrate that racial animus was a motivating factor),aff'd, 43 F.3d 1474 (7th Cir. 1994); Kundacina v. Concession Serv., Inc., No. 96 C 4422, 1997 WL 222943, at *3 (N.D. Ill. Apr. 30, 1997) (landlord's remarks of "f___ing niggers", "you mother f___ing people," and "get your black ass out of the way" was not direct evidence of discrimination)
In short, whether Hicks' statement is considered direct or indirect evidence of discrimination is immaterial because ultimately Parker must show that but for his race he would not have been terminated. Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1290 n. 8 (7th Cir. 1997). Hicks is African-American, Wright is African-American, and Parker's replacement is African-American. The circumstances here simply do not support an inference that Hicks' statement reflects discriminatory animus. See Plair, 105 F.3d at 349 n. 4 (fact that plaintiff's supervisor was black cut against black plaintiff's race discrimination claim); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997) (it defies common sense that an American would have the stereotypical view that "all Americans are stupid"); but see Johnson v. Zema Sys. Corp., 170 F.3d 734, 745 (7th Cir. 1999) (questioning proposition that member of a certain race might be less inclined to discriminate against member of his own race; persons of a certain race might well harbor stereotypical views of other members of their own race, motivating decisions to discriminate);see also Rush v. McDonald's Corp., 966 F.2d 1104, 1118 n. 50 (7th Cir. 1992) (fact that black plaintiff's replacement was also black suggested that employer's stated reason for plaintiff's discharge was not pretextual).
Parker's Title VII and § 1981 claims also fail under the indirect method of proving discrimination. Under this approach, Parker must initially establish a prima facie case of unlawful discrimination by demonstrating: (1) he is in a protected class; (2) he suffered an adverse employment action; (3) he was meeting RPD's legitimate expectations; and, (4) a similarly situated, nonprotected individual was treated more favorably. See Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000). Once Parker makes this showing, there is a presumption of discrimination against RPD and it must then come forward with a legitimate, nondiscriminatory reason for its action. Id. At this stage, RPD need not prove this was its actual motivation but, rather, need only produce admissible evidence which would allow a trier of fact to rationally conclude the employment decision at issue was not motivated by discriminatory animus. Id. Once RPD meets its burden of production, Parker must produce evidence from which a reasonable factfinder could conclude that RPD's articulated reason is a pretext for discrimination.Id.
Despite Parker's arguments to the contrary, the court finds he has not established the fourth element of a prima facie case of discrimination. Parker claims the following Caucasian employees committed bad acts but were not disciplined: John Walter stole materials (wood chips) from RPD's maintenance department; Chuck Johnson, Wayne Bakke, and John Hill falsified time cards; Philip Rehberg and DeDe Cancelose made racial slurs; Ron Alberts failed to secure park district property; and Ed Lopez was accused of stealing park district money. (LRSG.1(b) ¶ 116-19) However, Parker's knowledge is based entirely on hearsay, and the court does not consider hearsay statements that are otherwise inadmissible at trial at the summary judgment stage. Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1265 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994).
In addition, Parker has not shown that Hicks was the supervisor of these alleged comparables; where a different decision maker is involved, employees are rarely similarly situated. Plair, 105 F.3d at 350. Also, Parker has not offered any details as to the alleged misconduct of any of the employees to whom he attempts to compare himself. This makes it impossible for the court to determine whether they engaged in similar misconduct. See id.
Even if the court were to consider Parker to have satisfied his burden of establishing a prima facie case, RPD has satisfied its burden of articulating a legitimate, non-discriminatory reason for firing Parker. According to RPD, Parker was terminated because he falsified his expense report and failed to comply with mandatory accounting requirements. (Def. Memo., p. 1)
Parker attempts to show pretext by vehemently arguing he never used any park district funds for his own personal use. This does not show pretext. Arguing about the accuracy of the employer's assessment is a distraction, because the question is not whether the employer's reasons are right, but whether the employer's description of its reasons is honest. Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997); see also Pollard v. Rea Magnet Wire Inc., 824 F.2d 557 (7th Cir.), cert. denied, 484 U.S. 977 (1987). It is well-established that courts do not sit as "super-personnel departments" reexamining an entity's business decision and reviewing the propriety of the decision.Stewart w. Henderson, 207 F.3d 374, 378 (7th Cir. 2000).
It is undisputed Parker received four separate cash advances totaling $1,583. (LR56.1(a) ¶ 27) It is also undisputed his expense report indicated in excess of $1,700 in receipts. Id. ¶ 32) Parker has not and cannot dispute that his receipt. could not be reconciled with the cash advances he had requested. Hicks and Wright were entitled to conclude that Parker's error was not just an honest mistake. Wright stated:
Q: Do you think it was just an honest mistake on his part?
A: Not that many receipts.
***
A: I couldn't understand that big a —
Q: Discrepancy?
A: Right.
(Def. Exh. 4, Wright dep., p. 59)
Moreover, some of the receipts were for videos and food. (LR56.1(a) ¶ 60) Reichenspergar and Hicks were entitled to conclude these receipts were not connected to Parker's job duties. For example, the requisition forms which are the subject of Parker's July 15, 1998, expense report show specific field trips, such as "Field Trip to Museum of Science and Industry, February 14, 1998," and "One field trip to Chicago for career day. The Proud Lady Beauty Show, April 4, 1998." (LR56.1(a) ¶ 81) It is difficult to see how videos are connected to such field trips. Parker has admitted how cannot recall whether he shoved the videos to RPD program participants. (Id. ¶ 87) The majority of videos were "R" rated, and it is against RPD policy to show "R" rated movies at park district facilities. (Id. ¶¶ 87-91)
In his affidavit submitted in response to RPD's Rule 56 motion, Parker states none of the videos were for his personal use. (Pl. Exh. A, Parker Aff., ¶ 19) Yet, in his responses to RPD's Rule 36 Requests to Admit, Parker states he could not recall if he showed the videos to RPD participants. (LR56.1(a) ¶ 87) The court finds paragraph 19 of Parker's affidavit impermissibly conflicts with his Rule 36 admissions and disregards it. See Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1170 (7th Cir. 1996).
In addition, Parker states the food was for the children in his programs, yet Washington Park provides food for children through a soup kitchen. (Id. ¶ 68) Parker states the soup kitchen was not open on the week-ends and that Wright knew he was feeding the children, yet there is no evidence Reichensperger or Hicks knew of Parker's activities.
As stated above, the issue is not whether Hicks was right in concluding that Parker falsified his expense report. The issue is whether he honestly believed this. The facts of this case are similar to the facts in Pollard v. Rea Magnet Wire Co., 824 F.2d 557 (7th Cir. 1987), where the employer believed a black employee failed to report to work not because he had an ankle injury, but because he wanted to attend a body-building event. The employee had previously asked to have off the days he called in sick to attend the body-building event, a request the employer had denied. Id. at 558. As it turns out, the employer was wrong, but the Seventh Circuit held the employer's honest belief, even though poorly founded (its investigation had gone nowhere), was not evidence of pretext. Id. at 559. As in Pollard, Hicks may have been wrong in concluding that Parker intentionally falsified his expense report, but Parker has produced no evidence from which a reasonable factfinder could conclude Hicks' belief was anything but honestly held. See also Kariotis, 131 F.3d at 677-79 (no evidence employer's belief that plaintiff engaged in disability fraud was pretextual); Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1133-34 (7th Cir. 1994) (plaintiff's claim of innocence regarding weapons charge did not address pretext; the issue was whether the employer formed an honest belief she had a weapon on company property). Because Parker has not produced direct evidence of discrimination, nor established indirectly his claim under McDonnell Douglas, RPD's motion is granted with respect to Counts I and II.
B. Count III — § 1983
Parker has not mentioned his § 1983 claim in his response to RPD's motion for summary judgment and has, therefore, waived this claim. Even if the court were to consider this claim based on the pleadings, it would fail. Parker claims he was denied equal protection, but has failed to offer any evidence in support. Likewise, Parker claims he was denied due process. However, RPD's disciplinary policy provides a three-step appeal process. (Def. Exh. M, p. 7) Parker has failed to show how he was denied access to the appeal process or how RPD's process fails to satisfy the Due Process Clause. Thus, his § 1983 claim fails.
C. Count IV — Breach of Contract
Parker alleges his discharge violates RPD's progressive discipline policy. In essence, Parker argues the intent of the policy was to resolve non-willful disciplinary and/or performance issues by use of verbal, written, or other forms of coaching prior to suspension or dismissal, that he did not willfully intend to deceive RPD in submitting an erroneous expense report. and that RPD's failure to follow a progressive discipline approach, in light of his excellent work record, violated the policy.
The court finds RPD's progressive discipline policy does not constitute a contract. Under Illinois law, an employment relationship without a fixed term is presumed to be "at-will." Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 317 (Ill. 1987). However, an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. Id. at 318. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe an offer has been made. Id. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Id. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. Id. Whether a contract exists is a question of law. St. Peters v. Shell Oil Co., 77 F.3d 184, 187 (7th Cir. 1996).
Here, RPD argues the language of its progressive discipline policy does not contain any promises clear enough that an employee would reasonably believe an offer has been made, and the court agrees. This case is similar to Shell Oil, where the plaintiff argued the employer's progressive discipline policy created contractual rights. The Seventh Circuit disagreed. The court found policy language such as "progressive discipline and/or discharge may result" was discretionary, not promissory. Shell Oil, 77 F.3d at 188 (emphasis added). The Seventh Circuit also held the policy allowed the employer, in its discretion, to skip one or more of the three formal levels of progressive discipline and go straight to termination, depending on its assessment of the seriousness of the infraction. Id. Such language which permitted an employer to "jump the queue" is too loose and vague, according to the Seventh Circuit, to confer a legally enforceable right to progressive discipline. Id. A section of the policy which designated certain acts so serious as to warrant immediate dismissal was additional evidence disproving an enforceable contractual right, according to the Seventh Circuit. Id.
The language at issue here is even more permissive and vague than that at issue in Shell Oil, According to RPD's policy:
In all cases, the District reserves the right to determine the appropriate discipline. Employees are not assured that all of the above measures will be followed prior to dismissal.
The following is a non-exhaustive list of conduct and/or performance issues that may result in disciplinary action by the District, up to and including dismissal. At all times, the District will determine whether misconduct and/or poor performance has occurred and impose the appropriate disciplinary action.
(Def. Exh. M, p. 5)
As in Shell Oil, this is clearly discretionary language, not promissory; it suggests that progressive discipline may, but need not result from, a rule infraction nor does it say an RPD employee cannot be terminated unless RPD follows prescribed procedures of progressive discipline. See id. This language does not create an enforceable contract right to progressive discipline prior to termination under Duldulao. See Shell Oil, 77 F.3d at 188; see also Boulay v. Impell Corp., 939 F.2d 480, 482-83 (7th Cir. 1991) (manual stating that termination "should" occur only after progressive, corrective counseling had failed did not guarantee progressive discipline and did not create a contractual right under Duldulao); Lee v. Canuteson, 573 N.E.2d 318, 322 (Ill.App.Ct.) (policy language stating that progressive discipline approach may be used was insufficient to constitute contractual right), appeal denied, 580 N.E.2d 117
In fact, Parker admits that theft or misappropriation of funds is an action which is not appropriate for progressive discipline. (LR56.1(a) ¶ 107) While he may feel he did not commit these offenses, his admissions show that even he recognizes situations when progressive discipline is not warranted. Moreover, since policy language is analyzed from an objective viewpoint, Parker's statements in his affidavit regarding the meaning of the policy language (Pl. Exh. A, Parker Aff., ¶¶ 7, 12) is unpersuasive.
Because RPD's policy language fails to create a contractual obligation under Duldulao, RPD's motion is granted with respect to Count IV.
Conclusion
For the reasons set forth above, RPD's motion to strike is granted in part and denied in part. Its Rule 56 motion is granted. This cause is hereby dismissed in its entirety.