Opinion
No. 99 C 5810
May 22, 2000
MEMORANDUM OPINION AND ORDER
Cynthia J. Spaulding sues Blue Cross Blue Shield of Illinois ("Blue Cross") for race discrimination in violation of 42 U.S.C. § 1981 ("§ 1981"). Spaulding alleges she was discharged due to her race. Blue Cross moves for summary judgment pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1.
BACKGROUND
The court views the background facts in a light most favorable to Spaulding as the non-movant; all disputed facts must be resolved in her favor for purposes of this motion.
I The parties
Blue Cross is a health care insurance company headquartered in Chicago, Illinois. Spaulding, an African-American woman, worked at Blue Cross for nearly twenty-three years. From 1994 through 1998, Spaulding was a secretary in the enterprise output systems and enterprise processing systems departments. Her duties included completing time sheets for department employees, answering phones, paying bills and various other duties. Blue Cross allowed Spaulding some flexibility in her work hours. At her request, Spaulding's work day was typically from 7:30 a.m. until 3:30 p.m. Hubie Kocurek was Spaulding's supervisor in the enterprise output systems department and was ultimately responsible for the decision to terminate her.
II Spaulding's time sheets
Spaulding, like all hourly employees, was paid based on the number of hours worked during a two-week pay period as reflected on a time sheet submitted to the payroll department. The time sheet provides a space for the time the employee begins work, "time in," and the time the employee's work day ends. In addition to preparing time sheets for other employees, Spaulding was responsible for filling out her own time sheets. Spaulding acknowledged that the "time in" she marked on her time sheet was supposed to reflect the actual time she arrived at work in the morning. Def. 56.1 statement of facts ¶ 10. Spaulding knew that the amount of her check for a given pay period was based on the number of hours worked as reflected on her time sheet. However, Spaulding asserts the time sheets were only intended to provide estimates and were never required to exactly reflect the time in or time out, but only to reflect the hours worked. Spaulding aff. ¶¶ 6-9.
Blue Cross headquarters uses an "access control system" capable of providing a report showing each time an employee enters the building throughout the day. Every Blue Cross employee is issued an identification card that allows the employee to gain access to the building. When arriving at the building, the employee enters the main lobby and "swipes" her card through an electronic reader. The reader recognizes the employee's card, allows her access, and records the time of entry for that employee. The access control system can print a record of all the times a particular employee enters the building for a designated period of time. Blue Cross is aware of no instance in which the electronic access control system has recorded an employee's time of entry inaccurately.
Spaulding contends Blue Cross is aware of inaccuracies in entry times recorded by the access control system. This conclusion misrepresents the record. The system did initially provide an incomplete report regarding Spaulding's entry times for May 6, 1993. The initial report revealed Spaulding's first swipe at 4:00 p.m. and only showed her entries after that time. However, Benita Petroff, the administrator of the access control system, located the correct tape and printed an additional report for May 8, 1993 which included Spaulding's entire day. Def. facts ¶ 19; Batty dep. at 32. The initial report was incomplete, not inaccurate, and the error was corrected.
III The investigation and Spaulding's termination
It was the practice of Blue Cross' internal audit department to generate a report listing all company employees whose overtime pay made up twenty-five percent or more of his or her total pay in a given period. The audit department would then provide the list to the company's fraud control center, who was responsible for conducting investigations into possible fraud. In spring 1998, Spaulding appeared on the internal audit list due to her high level of overtime pay. Upon receiving the report, Carol Williams, manager of the fraud control center, assigned senior fraud investigator Joel Batty to investigate Spaulding's time.
The audit department asked Benita Petroff, administrator of the access control system, to run a report showing Spaulding's entries for May 1998. Batty reviewed this report and compared Spaulding's entry times recorded electronically with the times Spaulding recorded manually on her time sheets. The comparison indicated numerous discrepancies in Spaulding's favor; the arrival time she wrote on her time sheet was consistently earlier than the arrival time recorded by the access control system. In May 1998, Spaulding recorded a "time in" on her time sheets that was on average more than forty-five minutes earlier than her earliest swipe recorded by the access control system.
After being informed of the discrepancies, Kocurek, in conjunction with representatives from the internal audit, fraud control and labor relations departments, suspended Spaulding as of June 17, 1998. The basis for the suspension was that Spaulding had falsified employment records to her own benefit and therefore had committed theft. Blue Cross concluded that by entering a "time in" earlier than her actual arrival, Spaulding was paid for time she was not in the office and also started accruing overtime pay at an earlier point in the day. When informed of her suspension, Spaulding did not deny that she had filled the time sheets out incorrectly. She stated that the swipe system was not accurate and suggested that it missed her first entrance each morning. In her written response to the suspension, she apologized and stated that she was unaware that she was falsifying records or committing theft. Blue Cross terminated Spaulding on June 30, 1998. Blue Cross claims her discharge was based on data from the access control system and Spaulding's lack of a credible explanation for the discrepancy in her time sheets. After her discharge, Spaulding filed a union grievance with the labor relations department. The grievance was denied and her termination was upheld. No one at Blue Cross who participated in the investigation, the termination proceedings or the grievance procedure said anything to lead Spaulding to believe that her termination was related to her race.
Blue Cross also suspended Darya Gooden, an African-American, for signing Spaulding's time sheets without knowing her time.
Blue Cross maintains a written list of employee infractions that is posted in all departments. The rules state that an employee committing a listed infraction is subject to disciplinary action ranging from "verbal reprimand or disciplinary time off to termination from employment." Def. 56.1 ¶ 26. Falsifying records and theft from fellow employees or the company are infractions expressly set forth on the list. According to Williams, who has managed Blue Cross' fraud control center for seven years, every employee Blue Cross has determined to have falsified time records after an investigation by the fraud control center has been terminated or resigned.
IV Allegations of racial discrimination
Spaulding claims that her termination was due to her race. She asserts her time sheets actually reflected the estimated start time she arrived and denies that the access control system accurately recorded her first entry into the building each day. Spaulding aff. ¶¶ 1-4. She denies she inaccurately reflected overtime. Spaulding points out that other employees were allowed to sign in times other than when they actually arrived, yet Kocurek did not suspend or terminate any other employee for recording a "time in" that was earlier than they actually started. Pl. 56.1 ¶ 35. Finally, Spaulding claims that Blue Cross and Kocurek disproportionately disciplined African-American employees.
DISCUSSION
I Summary judgment standard
A movant is entitled to summary judgment when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, Fed.R.Civ.P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992)
A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). This language should not be misconstrued to require heightened review in employment cases. The Seventh Circuit has stressed that "there is no separate rule of civil procedure in employment discrimination cases;" rather, the "added rigor" language means only that "courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often, though not always, will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Employment discrimination case or not, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
II Section 1981 claim
Spaulding claims Blue Cross terminated her due to her race in violation of § 1981. Section 1981 discrimination claims are analyzed in the same manner as claims brought under Title VII, 42 U.S.C. § 2000e et. seq. Bratton v. Roadway Package System Inc., 77 F.3d 168, 176 (7th Cir. 1996). To succeed with a § 1981 claim, a plaintiff must demonstrate that the employer terminated her because of intentional discriminatory reasons. Jackson v. E.J. Brach Corp., 176 E.3d 971, 982 (7th Cir. 1999). A plaintiff may prove a Title VII or § 1981 claim in two ways. She may present direct or circumstantial evidence that discrimination was the determining factor in the discharge. Jackson, 176 F.3d at 982. The second, and more common way, is to utilize the indirect, burden-shifting approach originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Bratton, 77 F.3d at 176.
A The prima facie case
In the absence of direct evidence, Spaulding focuses on the McDonnell Douglas approach. In order to prevail under the burden-shifting approach, Spaulding must first establish a prima fade case of discrimination. McDonnell Douglas, 411 U.S. at 802; Jackson, 176 F.3d at 982. A successful prima fade showing creates a presumption of discrimination and forces the employer to produce a legitimate non-discriminatory reason for discharge. Id. Once an employer meets this requirement, the burden shifts to the discharged employee to demonstrate that the employer's stated reasons for its actions are pretextual. Id. Despite these shifting burdens of production, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff." Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). If Spaulding is unable to meet this burden, her claim fails. Sarsha, 3 F.3d at 1039.
To establish a prima facie case for race discrimination under § 1981, Spaulding must show (1) she was in the protected class; (2) she performed her job well enough to meet her employer's legitimate expectations; (3) despite her performance, she suffered an adverse employment action; and (4) Blue Cross treated similarly situated employees outside the protected class more favorably. Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). The parties dispute whether Spaulding meets the fourth element of a prima facie case. Blue Cross claims that Spaulding cannot establish that it treated similarly situated employees more favorably.
Spaulding claims Blue Cross treated similarly situated white employees more favorably. She contends Kocurek allowed her coworkers more flexibility with respect to sign in times. Spaulding points out that Kocurek never determined if other employees' access control system records coincided with the time they reported as time in. Spaulding concludes that similarly situated white employees were not subjected to the same treatment as she was since no other employee was terminated by Kocurek for falsifying time sheets.
To establish a prima facie case, Spaulding must show she was treated differently than a similarly situated employee who allegedly committed the same offense. Greenslade v. Chicago Sun-Times Inc., 112 F.3d 853, 864 (7th Cir. 1997); Beasley v. Health Care Service Corp., 940 F.2d 1085, 1089 (7th Cir. 1991). Spaulding's claim fails because she does not present any evidence that non-African-American employees that Blue Cross determined to have falsified time records were treated more favorably. She generally alleges that other employees were allowed to sign in at times other than when they arrived. These allegations are insufficient for two reasons. First, she does not identify the employees or the basis of her personal knowledge of the complaints. See Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 563 (7th Cir. 1998) (plaintiff failed to establish other employees were similarly situated where allegations failed to contain any specifics). More importantly, there is no evidence that other employees were alleged to have falsified records or that they were reported to Blue Cross management. Because Spaulding presents no evidence that Blue Cross had any reason to suspect or investigate these employees, she fails to show they were similarly situated. Id. (for another employee's behavior to be comparable to plaintiff's, the plaintiff must show that management was aware of the employee's behavior). In short, Spaulding's claim fails because she does not name even one employee who was determined to have falsified records, or to have committed a similar offense, but was treated better. See Kaniff v. Allstate Ins. Co., 121 F.3d 258, 265 (7th Cir. 1997)
Furthermore, Blue Cross has offered reasonable and undisputed explanations why Spaulding was investigated and terminated. It is uncontested that Blue Cross checked Spaulding's access control records because she appeared on a list of employees who received over twenty-five percent of her income from overtime. She does not present any evidence that the other employees she refers to were on the overtime list and were not investigated or that there were employees on this list whose access control system records were not checked. Similarly, there is no evidence of any other employee who Blue Cross determined had falsified records but was not terminated. Williams, who has been the manager of the fraud control center for seven years, stated that she is unaware of any instance in which a non-African-American employee was not terminated after Blue Cross determined he or she falsified records. Williams claims all employees found to have falsified their time records to their advantage have been discharged or resigned. Spaulding does offer evidence to contradict Williams' testimony. The employees Spaulding refers to were not similarly situated. Accordingly, Spaulding fails to establish a prima facie case because she presents no evidence that Blue Cross treated similarly situated non-African-American employees more favorably.
B Pretext
Even if Spaulding could establish a prima facie case, she cannot survive summary judgment because she fails to present sufficient evidence of pretext. Blue Cross has demonstrated a legitimate nondiscriminatory reason for her termination. Spaulding must show by a preponderance of evidence that the stated reason is a pretext for discrimination.Jackson, 176 F.3d at 983. Pretext in this context means "a lie, specifically a phony reason for some action." Jackson, 176 F.3d at 983 (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Spaulding may establish pretext directly, with evidence that Blue Cross was more likely than not motivated by a discriminatory reason, or indirectly, with evidence that Blue Cross' explanation is not credible.Sarsha, 3 F.3d at 1039. Spaulding may show Blue Cross' stated reason is not credible by "demonstrating that the reasons are factually baseless, were not the actual motivation for the discharge, or were insufficient to motivate the discharge." Jackson, 176 F.3d at 983.
The issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992); Kariotis v. Navistar Int'l Trans. Corp., 131 F.3d 672, 677 (7th Cir. 1997). "An employer's honest belief, whether or not it is mistakenly held, is the issue relevant to these situations." Jackson, 176 F.3d 971; see also Fairchild, 147 F.3d at 573 (the court's job is to determine whether the employer gave an honest explanation of its behavior). Spaulding must do more than show Blue cross made a mistake or did not correctly determine that she falsified her time sheets. She must present evidence to show that Blue Cross' decision-makers did not honestly believe the stated reason for her termination.
Spaulding fails to provide sufficient evidence to survive summary judgment. She fails to present evidence sufficient to support a reasonable inference that Blue Cross did not honestly believe she falsified her time sheets and that it terminated her for this reason. It is clear Spaulding was responsible for filling out her own time sheets and Blue Cross expected her time sheets to accurately reflect the time she spent at work. No one at Blue Cross ever told her it was acceptable to mark down a "time in" that was before she actually arrived. It is undisputed the "time in" that Spaulding recorded on her manual time sheets was consistently earlier than the time of her first swipe recorded by the access control system. The company's list of infractions expressly includes falsifying company records and theft from the company and the rules authorize termination for these offenses. According to Williams, Blue Cross has terminated every employee that it determined to have falsified time sheets for his or her benefit in the last fourteen years. Furthermore, Spaulding presents no evidence that suggests Kocurek, the final decision-maker, or any of the people he consulted, were motivated by discriminatory reasons. Spaulding's race was not mentioned during the proceedings leading to her termination and she does not allege anyone at Blue Cross made discriminatory remarks at any time. In short, it was reasonable for Blue Cross to terminate Spaulding for the discrepancies between her manual time sheets and the access control system's record.
As evidence of pretext, Spaulding alleges that Blue Cross disproportionately disciplined African-Americans on time-keeping issues. Spaulding relies on a Blue Cross interrogatory response for this conclusion. See pl. facts ¶ 43, ex. 10. According to the interrogatory response, twenty-one Blue Cross employees have been disciplined or discharged for falsifying records or theft from the company. Id. The list of employees included African-American, Caucasian and employees of other races with the majority of terminated employees being African-American. This evidence does not support an inference of discrimination. The fact that the majority of workers suspended were African-American does not support a reasonable inference of discrimination where there is no evidence non-African-American employees engaging in similar misconduct were treated better than similarly situated African-Americans. Here, the interrogatory response reveals that Blue Cross terminated every employee found falsifying records. The response only shows that more African-Americans were terminated than Caucasians, but it does not establish that Caucasian workers who falsified records or stole from the company were not terminated. In short, the interrogatory response is not evidence of disparate treatment.
The interrogatory response does not support a finding of pretext because the statistics are unreliable. The interrogatory response does not give the number of African-American and non-African-American workers investigated for alleged violations or the number of each group employed by Blue Cross in total. Without context, the number of employees of each race who were terminated is meaningless. In addition, the evidence lacks sufficient breadth to be trustworthy because "a small change in the underlying raw data would result in dramatic statistical fluctuations."Parker v. Federal National Mortgage Ass'n, 741 F.2d 975, 980 (7th Cir. 1984). Where the sample group of compared employees is very small, the possibility that disparity is merely due to chance rises significantly.Id. Consequently, disparities taken from small samples are inadequate to support an inference of discrimination. Parker, 741 F.2d 980; Soria v. Ozingra Bros., Inc., 704 F.2d 990, 995 (7th Cir. 1983); Campbell v. Fasco Indust. Inc., 861 F. Supp. 1385, 1395 (N.D. Ill. 1994); Zick v. Verson Allsteel Press Co., 644 F. Supp. 906, 912-23 (N.D. Ill. 1986); Gaydos v. Moore U.S.A. Inc, 1998 WL 341822, *7 (N.D. Ill. June 17, 1998). "Standing virtually alone, as they are in this case, statistics cannot establish a case of individual disparate treatment." Gilty, 741 F.2d at 1253 n. 8. The interrogatory response does not support the conclusion that Blue Cross disproportionately disciplined African-American employees. Spaulding's allegations do not make it more likely than not that she was discharged because of her race.
As further evidence of pretext, Spaulding claims that the time sheets she filled out were only intended to provide estimates and she never failed to report her time according to the flexible rules established by Kocurek. The record does not support these conclusions. The only evidence Spaulding relies on to establish these assertions is her own affidavit. There is no evidence, other than Spaulding's affidavit, that indicates the time sheets were meant to be mere estimates or that Kocurek allowed flexible reporting of Spaulding's time. This conclusion goes against common sense and Spaulding's deposition testimony. It is undisputed that Blue Cross relied on time sheets to determine how much the hourly workers should be paid. It is unlikely that any company would allow workers to estimate the time they worked and risk paying for time not actually worked as a result. In her deposition, Spaulding admitted that she understood the time in her time sheet was to reflect the time she actually came to work in the morning. Spaulding dep. at 44-45. She also stated that no one at Blue Cross ever gave her permission to mark down a time on her time sheet that was earlier than her actual arrival time.Id. It is well established in this circuit that "self-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999) (citing Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993). Similarly, a party cannot create an issue of fact by submitting an affidavit containing conclusions that contradict prior testimony. Patterson v. Chicago Assoc. for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998). There is insufficient evidence to support the assertions in Spaulding's affidavit. Thus, the allegations fail to raise an issue of material fact to survive summary judgment.
Kocurek gave Spaulding flexibility regarding the hours she could work, but there is no indication that he did not expect her time sheets to accurately reflect the hours she chose.
Finally, Spaulding's claim that the time sheets accurately reflected the time she arrived at work does not establish pretext. Whether or not Spaulding actually lied about the times she arrived at work is irrelevant for purposes of the pretext analysis. The issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. McCoy, 957 F.2d at 371. The question is whether Kocurek had a good faith belief that she falsified her time sheets. Even if Spaulding's time sheets were accurate, this would not establish Blue Cross' decision to terminate her was pretextual without evidence that Kocurek knew the records were accurate despite the discrepancies. Spaulding points to nothing in the record that reasonably calls into question the honesty of Kocurek's professed belief that she falsified her time sheets and this is the reason he terminated her. "If the evidence does not amply support plaintiff's claim that the defendant's explanation is unworthy of credence, judgment as a matter of law is entirely appropriate."Giannopooulos v. Brach Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997) (citing Futrell v. J.I. Case, 38 F.3d 342, 346 (7th Cir. 1994) Accordingly, the motion for summary judgment must be granted.
CONCLUSION
The motion for summary judgment is granted.