Opinion
IP 99-1031-C-T/G
September 19, 2000
ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT
Girdhar C. Srivastava was employed for a period of time by the defendant, Indiana State Personnel Department ("State Personnel"). His employment was terminated, leading to this lawsuit alleging illegal age and national origin discrimination.
State Personnel seeks summary judgment based on its arguments that the age discrimination claim is barred by the Eleventh Amendment and that the national origin claim lacks a sufficient factual basis to proceed to trial.
For the reasons explained in this Entry, the motion for summary judgment must be granted.
I. Summary Judgment Standards
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only if a reasonable jury could find for the nonmoving party. Id.
The purpose of Rule 56 is to "enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues." Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990). The mechanism of summary judgment "reinforces the purpose of the [Federal Rules of Civil Procedure], to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Co., 780 F.2d 1190, 1197 (5th Cir. 1986) (Rubin, J.) ("Absent evidence, direct, circumstantial, or inferential, that would create a genuine issue of fact, and absent any suggestion concerning the utility of additional time for further discovery, the [summary judgment] motion should be granted.").
The means by which the purpose of Rule 56 is accomplished is by "pierc[ing] the pleadings and . . . assess[ing] the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party moving for summary judgment initially has the burden of showing the absence of any genuine issue of material fact. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). If the moving party carries this burden, the opposing party then must "go beyond the pleadings" and present specific facts which show that a genuine issue exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In evaluating the appropriateness of summary judgment, three steps are necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine issue for the trier of fact, as determined by the documents submitted to the court; and (3) considering that evidence in light of the appropriate standard of proof. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes which are irrelevant or unnecessary will not be considered. Id. Barone v. Hatcher, 984 F. Supp. 1305, 1306-07 (D.Nev. 1997).
Local Rule 56.1 also governs summary judgment procedure in this district. The rule provides that a party moving for summary judgment must serve and file "a Statement of Material Facts . . . in compliance with L.R. 56.1(f), as to which the moving party contends there is no genuine issue and that entitles the moving party to a judgment as a matter of law." S.D. Ind. L.R. 56.1(a)(1). The rule requires a party opposing a summary judgment motion to serve and file "a Response to Statement of Material Facts . . . in compliance with L.R. 56.1(f) that contains a response to each material factual assertion in the moving party's Statement of Material Facts, and if applicable, a separate Statement of Additional Material Facts that warrant denial of summary judgment." S.D. Ind. L.R. 56.1(b)(1). L.R. 56.1(f) sets forth the following requirements for factual statements and responses thereto:
(1) Format and Numbering. The Statement of Material Facts shall consist of numbered sentences. The Response to Statement of Material Facts must be numbered to correspond with the sentence numbers of the Statement of Material Facts. . . .
(2) Format of Factual Assertions. Each material fact set forth in a Statement of Material Facts, Response to Statement of Material Facts, Statement of Additional Material Facts . . . must consist of concise, numbered sentences with the contents of each sentence limited as far as practicable to a single factual proposition. Each stated material fact shall be substantiated by specific citation to record evidence. . . .
S.D. Ind. L.R. 56.1(f)(1), (2). L.R. 56.1(g) sets forth the consequences a party opposing a summary judgment motion faces if he fails to comply with L.R. 56.1(f):
In determining the motion for summary judgment, the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are specifically controverted or objected to in compliance with L.R. 56.1(f).
S.D. Ind. L.R. 56.1(g).
Srivastava's submissions in response to State Personnel's summary judgment motion fall woefully short of L.R. 56.1's requirements. He has not filed a Response to Statement of Material Fact; rather, he filed a document entitled, "Plaintiff's Statement of Genuine Issues of Material Fact." This document does not meet L.R. 56.1(b)'s requirements: It does not contain a response to each material fact asserted in State Personnel's Statement of Material Facts; and it does not comply with the format requirements of L.R. 56.1(f)(1) and (2). Srivastava has not specifically controverted or objected to any of the facts as claimed and supported by admissible evidence by State Personnel. Consequently, the court assumes that the facts set forth in State Personnel's Statement of Material Facts are admitted to exist without controversy and are set forth below in the "Findings of Fact."
Even if Srivastava's responsive submissions complied with L.R. 56.1's requirements, they still do not raise an inference of a genuine issue of material fact. The first numbered statement of genuine issue and the cited paragraph of Srivastava's affidavit (purporting to incorporate by reference an attached Exhibit A entitled "Salient Features of the Case,") are based on hearsay and therefore are not admissible. The remaining numbered statements of genuine issue and the cited paragraphs of Srivastava's affidavit are conclusory statements, indications of opinion or belief, lacking in underlying factual bases, and/or do not reflect the requisite personal knowledge. Thus, even if the court were to look beyond Srivastava's noncompliance with L.R. 56.1, the substance of his evidentiary submissions is insufficient to create a genuine issue of material fact. See Rand v. CF Indus., Inc., 42 F.3d 1139, 1146 (7th Cir. 1994) ("Inferences and opinions must be grounded on more than flights of fancy, speculations, hunches, intuitions, or rumors. . . .").
II. Findings of Fact and Conclusions of Law A. Findings of Fact
1. On August 24, 1998, Srivastava was hired by State Personnel as an Account Clerk III. His main task was to audit internal payroll matters for state agencies to determine whether there were any discrepancies in the accounts.
2. On September 24, 1998, it was reported that Srivastava had incorrectly entered his password twenty-two (22) times on September 21, 1998. Srivastava's supervisor gave him typed instructions with the hope that Srivastava would be able to access the computer system. The supervisor also agreed to assist Srivastava in signing on and off the system until he could accomplish this without notes or assistance.
3. On November 16, 1998, Srivastava received a letter of counseling because he had used the office fax machine to send several personal faxes to India.
4. On December 16, 1998, Srivastava was given a written explanation of his duties. This explanation was required because Srivastava continued to have difficulty understanding the tasks assigned to him.
5. On January 8, 1999, Srivastava received a three-month evaluation covering his work from August through November 1998. None of the ratings he received were above satisfactory or standard; quite a few were below satisfactory. The evaluation noted that Srivastava had difficulty in accessing the computer system and adjusting accrual dates for employees on family and medical leave. He had trouble understanding the general salary adjustment for the new year, and difficulty following instructions.
6. On January 22, 1999, Srivastava received another letter of counseling regarding the removal of another employee's file from the file room without apparent reason, and Srivastava's disregarding instructions concerning his computer.
7. On February 25, 1999, Srivastava's employment was terminated by State Personnel because he failed to complete his six-month (6) working test, in that he did not perform his duties satisfactorily and had not become sufficiently acclimated to the position.
8. On May 17, 1999, Srivastava filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that his employment was terminated due to his age and national origin. He received his right to sue letter on June 14, 1999, and this suit followed.
B. Conclusions of Law 1. Age Discrimination Claim
Srivastava contends that he was treated in a discriminatory manner because of his age, pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. However, Srivastava is suing the State Personnel Department, which is an agency of the State of Indiana. See IND. CODE § 4-15-1.8-2 (2000). In Kimel v. Florida Board of Regents,120 S.Ct. 631, 639, 650 (2000), the Supreme Court found that the ADEA did not validly abrogate Eleventh Amendment immunity. Varner v. Illinois State Univ., 2000 WL 1257266 (7th Cir. September 6, 2000); see also Erickson v. Board of Governors for Northeastern Ill. Univ., 207 F.3d 945 (7th Cir. 2000); Stevens v. Illinois Department of Transportation, 210 F.3d 732 (7th Cir. 2000). Thus, Srivastava's ADEA claim can not proceed against a state or its agencies in federal court, and State Personnel's motion for summary judgment must be granted in regard to this claim.
2. Nation Origin Discrimination Claim
Title VII prohibits "employers" from discriminating against individuals on the basis of "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Srivastava may prove his discrimination claim by presenting direct or circumstantial evidence of retaliation, or by relying on the indirect, "burden-shifting" method of proof outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Direct evidence is evidence which, if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption. Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). The direct evidence must show that the defendant said or did something indicating discriminatory animus with regard to the specific employment decision(s) in question. Id.
Srivastava has not produced any direct evidence in support of any of his claim. The court will therefore proceed to consider the indirect McDonnell Douglas "burden-shifting" method of proof. Under this method, "a plaintiff must establish a prima facie case; if he does so, the employer must provide a legitimate, nondiscriminatory reason for the employment action. Finally, the plaintiff must show that the reason offered was not the employer's true reason but was instead a cover for discrimination," i.e., was a pretext. DeLoach v. Infinity Broad., 164 F.3d 398, 401 (7th Cir. 1999) (citation omitted).
To establish a prima facie case of national origin discrimination, Srivastava must produce evidence that (1) he was a member of a protected class; (2) he was meeting the State's legitimate performance expectations; (3) he suffered an adverse employment action; and (4) the State treated similarly situated persons not in the protected class more favorably. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 742-43 (7th Cir. 1999).
A plaintiff can establish pretext by showing either that a discriminatory reason more likely motivated the employer, or that the employer's proffered explanation is unworthy of credence. Rand v. CF Indus., Inc., 42 F.3d 1139, 1145 (7th Cir. 1994). In demonstrating pretext, a plaintiff must show more than that the employer's decision was incorrect; the plaintiff must also show the employer lied about its proffered explanation. See Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). "Pretext is a lie, not merely a mistake." Jordan v. Summers, 205 F.3d 337, 344 (7th Cir. 2000) (citing Ghosh v. Indiana Dep't of Envtl. Mgmt., 192 F.3d 1087, 1092 (7th Cir. 1999)).
When the defendant has proffered an explanation for termination that the court determines to be non-pretextual, the court may avoid deciding whether the plaintiff has met his prima facie case and instead decide to dismiss the claim because there is no showing of pretext. See Equal Employment Opportunity Comm'n v. Our Lady of the Resurrection Med. Center, 77 F.3d 145, 149-50 (7th Cir. 1996) ("[T]his court may advance to an ultimate issue in a summary judgment analysis and consider the discrimination question notwithstanding a dispute over a fact necessary for a prima facie case.").
State Personnel has documented a legitimate, non-discriminatory reason for terminating the plaintiff's employment, i.e., his failure to perform his duties satisfactorily and not becoming sufficiently acclimated to his position. In this setting, a showing that State Personnel's proffered reason is pretextual may be demonstrated by establishing: (1) the reason has no basis in fact; (2) the reason was not the actual motivation of the employment decision; or (3) the reason was insufficient to motivate the employment decision. Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir.), cert. denied, 117 S.Ct. 175 (1996).
Srivastava alleges that he was only reluctantly hired, that he was not welcomed when he was hired, that his reports of irregularities within State Personnel were greeted with animosity from his supervisor, that his supervisor remarked that she once dated an Indian man, and that an African-American woman, hired at the same time but who had transferred from other State employment, was paid more than was he, but these allegations of ill-will and unwelcomeness do not support the inference that Srivastava was treated in a discriminatory manner. Srivastava's subjective self-appraisals cannot create a genuine issue of fact. See, e.g., Bridgman v. New Trier High Sch. Dist. 203, 128 F.3d 1146, 1150 (7th Cir. 1997); Jones v. Merchants Nat'l Bank Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994) ("Self-serving assertions without factual support in the record will not defeat a motion for summary judgment."). In addition, the circumstances he describes do not remotely suggest that State Personnel's performance assessment in early 1999 was a pretext, meaning a lie. On the contrary, during his probationary period Srivastava failed to master the systems and procedures necessary for performing the functions of his job. State Personnel's assessment of Srivastava's performance after 6 months of employment has not been shown to be without a basis in fact, has not been shown to be other than the actual motivation of the decision to terminate Srivastava's employment, and was certainly sufficient to motivate the decision itself.
This decision was not a pretext and there is no triable question concerning that point. State Personnel's motion for summary judgment must be granted on the Title VII claim.
III. Conclusion
The court lacks jurisdiction over Srivastava's ADEA claim. With respect to the Title VII claim, Srivastava has failed to go beyond the pleadings and present specific facts which show that a genuine issue exists. State Personnel's motion for summary judgment is therefore granted and judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.