Opinion
No. 97 C 6145
September 5, 2000
MEMORANDUM OPINION AND ORDER
Robert H. Washington, Jr. ("Washington") sues his former employer MacNeal Hospital ("MacNeal") for discrimination based on race under 42 U.S.C. § 2000e et sea. ("Title VII") and 42 U.S.C. § 1981 ("section 1981"). Before this Court is MacNeal's Motion for Summary Judgment under Federal Rule of Civil Procedure ("Rule") 56(c). For the following reasons, the Court grants MacNeal's motion.
This Court dismissed plaintiffs Count IV wrongful discharge claim with prejudice on March 5, 1998. (See 3/5/98 Minute Order.)
Facts
Before discussing the undisputed facts, we must first address plaintiffs failure to follow the District's Local Rule ("LR") 56.1(b)(3) and the consequences that stem therefrom. In support of its motion for summary judgment, defendant filed its statement of undisputed facts under Local Rule 12(M), which has been renumbered to LR 56.1(a)(3). Plaintiff filed a "Response to Defendant's Rule 12 Statement of Facts" where he admitted or denied defendant's fact statements. However, plaintiff failed to support his denials with any factual support. The local rule requires a party opposing a motion for summary judgment (here, plaintiff) to respond to each of the movant's statements, and "in the case of any disagreement, specific references to the affidavits, part of the record, and other supporting materials relied upon. . . ." LR 56.1(b)(3)(A). Failure to properly support a denial constitutes an admission. See McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998). In many of his responses, plaintiff merely states "Denies" in response to defendant's fact statement without any citation to supporting authority. (See PI.'s Resp. to Def.'s 12(M) Stmt. ¶¶ 24, 25, 29, 33, 38, 43, 44.) In other responses, plaintiff attempts to support his denial of defendant's statement with a citation to defendant's answer to the amended complaint. (See id. ¶¶ 39, 40, 48-51.) However, this source fails to provide plaintiff's responses with any support for his disagreement with defendant's statements.
The local rule also requires plaintiff to file a statement of "additional facts that require the denial of summary judgment." LR 56.1 (b)(3)(B). The rule is clear that the material facts set out by the movant will be "deemed to be admitted unless controverted by a statement of the opposing party." Id. Plaintiff has not submitted a statement of additional facts to support his position that summary judgment is not warranted in his case. Instead, he filed a memorandum of law in response to defendant's motion, an affidavit signed by him, and six volumes of documents in support of his position. Under the local rule, plaintiff has failed to controvert defendant's statement of facts either through his response to defendant's Rule 12(M) Statement or through a properly filed additional statement of facts. Despite plaintiffs failure to follow the local rule, in an abundance of leniency, we shall attempt to construe plaintiffs affidavit as a statement of additional facts. However, as we later discuss, plaintiffs affidavit suffers many evidentiary flaws, so that only a small portion of his affidavit survives. Thus, as a result, and despite the miscellaneous materials he filed in support of his position, all of defendant's Local Rule 12(M) statements are deemed admitted for purposes of our review.
Since March 1994, defendant has operated Genesis Clinical Laboratory ("Genesis"), a full service commercial laboratory that provides specimen collection, testing, evaluation and reporting services to MacNeal patients and other healthcare providers. (Def.'s Local Gen. R. ("Rule") 12(M) Stmt. ¶¶ 6, 8; id., Ex. C., Anthony Rea Aff. ¶¶ 2, 3.) Before that time, MacNeal and Damon Corporation jointly owned and operated the laboratory as Damon Clinical Laboratory ("Damon"), which closed when the joint venture terminated. (Id. ¶ 7; id Ex. C, Rea Aff. ¶ 4.) The laboratory departments at Genesis include Chemistry, Microbiology, Hematology, and Blood Bank. (Id. ¶ 9; id Ex. C., Rea Aff. ¶ 9.)
Washington is a black male who worked for defendant as a registered medical technologist. (id. ¶ 13, 14.) Washington was hired by Damon in January 1985 as a medical technician, and after he was notified in 1993 that the joint venture was over, he subsequently applied to and was hired by defendant to work at Genesis in March 1994. (Id. ¶¶ 15,17, 22.) For over a year, Washington worked as a Generalist where he rotated through three different departments in the laboratory, including the Blood Bank, to fill in for vacationing employees and full time technologists taking days off. (Id. ¶ 23.) In or around July 1995, Washington applied and interviewed for a full time, second shift position in Genesis' Blood Bank. (Id. ¶¶ 26, 27.) He was hired for this position by the Blood Bank supervisor, Sandy Smietana. (Id. ¶¶ 27, 28.)
Smietana and Washington had known one another since 1992 where Smietana, as Damon's Blood Bank supervisor, had an opportunity to observe Washington because he had filled in for a full time Blood Bank employee two days a week. (Id. ¶ 16.) A couple years later, when Washington applied to Genesis for the Generalist position, Smietana was one of the supervisors with whom Washington interviewed. (Id. ¶ 19.) Smietana was a strong supporter of Washington in his efforts to obtain a Generalist position with Genesis. (Id. ¶ 21.) When Washington rotated through the Blood Bank as a Generalist, he and Smietana had a positive, pleasant working relationship. (Id. ¶ 24.) He was hired by Smietana for the full time Blood Bank position because she believed Washington was the best candidate and he was competent. (Id. ¶ 28.)
At the time Washington transferred into the Blood Bank, Smietana assessed his prior performance as a Generalist in the Blood Bank. Smietana's written review of Washington's past performance identified several areas of improvement: judgment, communication, accurately performing tests, properly recording test results, and performing all steps necessary to prepare blood for patient use. (Id. ¶ 32; id Ex B., Washington Dep., Ex. 37.) Washington did not disagree with this assessment, and he began performing the duties of a full time Blood Bank medical technologist around November 5, 1995. (Id. ¶¶ 32, 33.) These duties included testing blood for type and screen, cross matching blood for transfusion, core blood testing on specimens, quality control, paperwork, preparing products for patients, and various other tests. (Id. ¶ 31.) Like all new transferees, Washington was a probationary employee for his first three months in this new position. (Id. ¶ 33.)
In early January 1996, Smietana provided Washington with his initial probation period review. (Id. ¶ 34.) His probation period was extended because his review indicated that he needed to update himself on Blood Bank theories and he need to gain more experience in the position. (Id. ¶¶ 35, 36.) Washington agreed that he needed additional time to familiarize himself with Blood Bank policies, procedures and practices and did not disagree with Smietana's decision to extend his probationary period. (Id. ¶ 37.) At the end of that month, Washington achieved a 75% score on his proficiency sample testing. He was required to repeat the test a few days later. (Id. ¶ 38.)
In mid May 1996, Smietana conducted another review of Washington where she advised him of deficiencies in his performance, including failing to accurately perform immunohemotological tests on all patient and donor samples, improperly recording interpretations of serological reactions, and failing to meet competency criteria. (Id. ¶¶ 39; id., Ex. B., Washington Dep., Exs. 21, 22.) Smietana extended his evaluation for another 90 days so that he could have the opportunity to improve his performance. (Id. ¶ 40.) She informed him that he would be subject to further disciplinary action including suspension or termination if he could not meet certain performance criteria. (Id. ¶ 41; Id., Ex. B., Washington Dep., Ex. 22.)
On June 6, 1996, Washington failed to record the results of a cross match he performed. (Id. ¶ 42.) Over a month later, in late July 1996, Washington was suspended after he committed a cross match error in late June that caused a patient to suffer a delayed transfusion reaction. (Id. ¶ 43.) Smietana considered Washington's error "serious" because it caused complications for the patient and could have resulted in the patient's death. (Id. ¶ 43, 44; id., Ex. B., Washington Dep., Ex. 26.) Washington's error resulted from his failure to find the patient's antibody card which would have disclosed the patient's history of blood reactions. (Id.)
On September 19, 1996, Washington received a final warning and a 60 day extended evaluation in connection with his continued performance issues. (Id. ¶ 45; id., Ex. B., Washington Dep., Ex. 28.) Smietana detailed Washington's performance errors to him in a memorandum. She covered his errors between his last review on May 14 and the current time, which described the June 6 incident, the serious cross match incident in late June which resulted in his suspension, an August 13 incident where Washington failed to detect and investigate a discrepancy in the patient's name on the testing documentation he was using and preparing, an August 25 incident where Washington typed the wrong patient blood type into the computer system, his excessive socializing and wasting time in the performance of his duties, and his need to demonstrate progressive improvement in the technical ability and judgment. (Id. ¶ 46; id., Ex. B. Washington Dep., Ex. 28.) These incidents lead Smietana to conclude that Washington's "performance remains unsatisfactory and continues to jeopardize the care and treatment of our patients." (Id., Ex B Washington Dep., Ex. 28.) She informed Washington that his failure to either follow policies and procedures or demonstrate performance improvement at any time during the 60 day probationary period would result in his termination. (Id.)
Six days later, Washington incorrectly recorded a patient's blood type. (id. ¶ 48.) A month later, Washington failed to follow Blood Bank procedures for requesting time off for a vacation. (Id. ¶ 49.) On November 1, 1996, after attending a meeting with Smietana and her supervisor, Washington was terminated. (Id. ¶ 50.)
Discussion
To prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] 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." Fed.R.Civ.P. 56(c). At this stage, we do not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986). The moving party bears the initial burden of identifying the portions of the record which it believes demonstrate the absence of a genuine issue of material fact and entitle it to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). We view all evidence and the inferences from it in the light most favorable to the non-moving party. Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir. 1991).
Once a properly supported motion for summary judgment has been filed, the non-moving party must set forth specific facts showing there is a genuine issue for trial. Anderson, 477 U.S. at 248. An issue of fact is genuine only if a jury could reasonably return a verdict for the non-moving party. Id.
To defeat MacNeal's motion on the merits, Washington must establish that he was the victim of discrimination based on race. He can accomplish this task in one of two ways: either by presenting direct evidence of MacNeal's discriminatory intent or by complying with the indirect, burden-shifting method of proof articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Cheek v. Peabody Coal Co., 97 F.3d 200, 203 (7th Cir. 1996). MacNeal has presented no direct evidence of discriminatory intent. Thus, only the latter burden-shifting method of proof applies to this case.
To prevail under McDonnell Douglas, Washington must first establish aprima facie case of discrimination. In order to establish his prima facie case Washington must show that: (I) he is a member of a protected group; (2) he performed well enough to meet MacNeal's legitimate expectations for a Blood Bank medical technologist; (3) he suffered an adverse employment action; and (4) MacNeal treated similarly situated employees more favorably. Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472-73 (7th Cir. 1993).
Once established, the prima facie case creates a rebuttable presumption of discrimination. The burden of production then shifts to MacNeal to articulate a legitimate, nondiscriminatory reason for the adverse action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). if MacNeal carries its burden, the presumption of discrimination disappears and Washington must show that MacNeal's proffered reason for the discharge is merely a pretext. Id. at 255-56.
Washington satisfies the first and third prongs of the prima facie test. MacNeal contends that Washington cannot satisfy the second and fourth elements of his prima facie case to show that he was meeting MacNeal's legitimate expectations and that similarly situated employees were treated more favorably. Because the analysis of these prima facie elements encompasses a discussion of Washington's performance problems and his ability to live-up to MacNeal's expectations, we shall also review MacNeal's proffered reasons for the adverse employment action, an exercise generally performed after plaintiff demonstrates his prima facie case to determine pretext. See Roberts v. Separators. Inc., 172 F.3d 448,451 (7th Cir. 1999) (the analysis of the prima facie test's second factor often "dovetails" with whether defendant has established a legitimate, nondiscriminatory reason for the firing.)
MacNeal asserts that Washington was fired because he failed to follow Blood Bank policies and procedures, failed to accurately interpret patient test results, and failed to accurately perform all Blood Bank tests on patients and donors. (Def.'s Corrected Summ. J. Mem. at 10.) It is undisputed that Washington failed to accurately perform immunohemotological tests on patient and donor samples, (Def.'s Rule 12(M) Stmt. ¶ 39), improperly recorded interpretations of serological reactions, (Id.), failed to record the results of a cross match (which resulted in his suspension), (id. ¶ 43), failed to detect a discrepancy in the patient's name or testing documentation he was using and preparing, (Id. ¶ 46), failed to properly enter the patient's blood type into the computer system, (id.). incorrectly recorded a patient's blood type. (Id. ¶ 48), and failed to follow Blood Bank procedures for requesting time off. (Id. ¶ 49.) All of these performance deficiencies were explained to Washington during his periodic reviews, and, as a result of these problems, Washington was never taken off the probationary status.
Washington argues that the only reason given to him for his dismissal at the November 1, 1996 termination meeting with Smietana and her supervisor. Ann Scott, was his failure to properly process a vacation request form. (Robert Washington Aff. ¶ 30; Pl.'s Resp. at 4-5.) However, Washington's deposition testimony contradicts his affidavit. He testified in his deposition that he was reminded by Smietana of his prior performance deficiencies at the time of his termination. (Def.'s Rule 12(M) Stmt., Ex. B., Washington Dep. at 344-45.) Despite what Washington was told at the termination meeting, it is undisputed that throughout his tenure as a full time Blood Bank technologist, Washington had several performance deficiencies, was never taken off of probationary status, and he received a "final warning" shortly before his termination that any failure to follow policies and procedures would result in termination.See id., Ex. B., Washington Dep., Ex. 28.) Based on this undisputed evidence, Washington was not meeting the legitimate expectations of MacNeal for a Blood Bank medical technologist. Thus, he fails to satisfy the second prong of his prima facie case.
However, even if he could show that he was meeting the legitimate expectations of MacNeal, Washington fails to demonstrate the fourth prong of the prima facie case: that similarly situated non-black Blood Bank technologists were treated more favorably by MacNeal. Washington argues that while he admits he made certain mistakes during his tenure as a full time Blood Bank technologist, that "all employees made similar mistakes." (Washington Aff. ¶ 20.) In fact, Washington suggests that "White employees" were not reprimanded or disciplined for many of the same performance deficiencies and errors committed by him. (See id. ¶¶ 21-25, 28, 29, 34.) However, Washington makes generalized conclusions that White employees were treated better than he was treated without presenting any evidence that such conclusions are based on Washington's personal knowledge. (See id. ¶¶ 20-25, 28, 29, 34.) Under Rule 56(e), an affidavit presented to support or oppose summary judgment must be "made on personal knowledge" and based on "facts that would be admissible in evidence." FED. R. CIV. P. 56(e). Washington states that during his tenure with the Blood Bank he worked the second shift as the sole medical technologist. (Washington Aff. ¶ 7.) While he claims that he reviewed the discovery materials produced by MacNeal which "confirms" his belief that he was treated less favorably than White Blood Bank technologists (id. ¶ 34), he has not demonstrated that his knowledge on the treatment of the others was based on his personal observation. Considering that he never worked with other full-time Blood Bank technologists or presented any evidence to support his personal knowledge of the treatment of other employees, we must strike paragraphs 20-25, 28, 29, and 34 from his affidavit for failing to comply with Rule 56(e).
Washington refers to similarly situated "White employees" throughout his affidavit and Response Memorandum. However, he seeks to compare himself to certain employees who are not white. For example, Paulita Bacani is Filipino and Mumtaz Alam is Pakistani. (Pl.'s Resp. at 7, 8.)
Despite striking these paragraphs, Washington presents evidence in his Response Memorandum from performance review documents of other Blood Bank employees to demonstrate that these employees had similar performance issues as he did, but were treated more favorably than Washington. He believes that White employees were treated better because, despite their performance problems, the other employees were not disciplined or terminated. (Pl.'s Resp. at 3-4.) However, a review of these records does not support Washington's argument that White Blood Bank technologists were treated more favorably by MacNeal. First, Washington has failed to show that all of the employees to which he wishes to compare himself are "similarly situated." To show they were, Washington must establish that all of the relevant aspects of his employment situation were "nearly identical" to these employees. See Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994). Washington does not even attempt to do so. Instead, he points to several Blood Bank employees who were not full time Blood Bank technologists, were not employed in the Blood Bank at the time he was employed, and/or were not supervised by Smietana but by another individual, Nick Dressell. For example, employees Kathy Raker, Bea Rimas, Michelle MeFarlane, Paulita Bacani, and Barb Biscan were not full time Blood Bank employees, and Biscan, Bacani and MeFarlane were not exclusively supervised by Smietana, but instead reviewed by Dressell. (Pl.'s R., Volumes IV, V.)
These documents were filed with the Court by plaintiff in response to defendant's summary judgment motion. (See PI.'s R., Volumes I-VI.)
For those full time Blood Bank medical technologists who appear similarly situated, Nancy Kehoe, Tracy Melendez, Mumtaz Alam, Monica Bachleda, and Kurt Ciabattari, Washington has not demonstrated that they were treated more favorably for some of these employee's performance problems. For example, Washington asserts that Kehoe made "numerous errors" but still received a "fully effective" rating on her May 6, 1996 evaluation. (Pl.'s Resp. at 8.) However, our review of the record does not demonstrate these numerous errors. Rather, her evaluations demonstrate that Kehoe was a hardworking, responsible employee who had very few, if any, performance problems. (See PI.'s R., Vol. V at M00180-84, M00147-49, M00157-60, M00164-67.) Furthermore, Kehoe was not on probationary status when she committed certain discrete errors. (See id., at MS 0567.) He also alleges that Bachleda and Ciabattari also violated the vacation request policy but were not disciplined or fired. Again, the records provided by plaintiff do not demonstrate that these employees violated the policy or that they should have been disciplined for their actions. (See PI.'s R., Vol. IV at M50069; id., Vol. V at 314-15.)
The performance histories of full time Blood Bank medical technologists do not establish that MacNeal treated these employees more favorably than it treated Washington. While these technologists may have had certain performance problems, they did not have as many negative evaluations, the same type of problems (such as the "serious" cross match error), or the same degree of difficulties as Washington. Furthermore, Washington was given several warnings, including a final warning issued two months before his termination that he would be fired if he had any further performance problems. It is clear from the record that the evidence Washington presents is insufficient for a reasonable fact finder to find that he has established the fourth prong of his prima facie case of discrimination by MacNeal.
Even if Washington had established a prima facie case he would still need to show that MacNeal's stated reasons for his discharge was pretextual. Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Pretext in this context means that MacNeal's explanation is unworthy of credence. See Mechnig v. Sears Roebuck Co., 864 F.2d 1359, 1364-65 (7th Cir. 1989). MacNeal's reasons are unworthy of credence if (1) they have no basis in fact, (2) did not actually motivate his discharge, or (3) were insufficient to motivate discharge. Kier v. Commercial Union Ins. Cos., 808 F.2d 1254, 1259 (7th Cir. 1987). Washington cannot demonstrate that MacNeal's reasons are unworthy of credence because it is undisputed that Washington had several policy and procedural problems and was warned several times of the consequences of his failure to improve. Thus, there is a basis in fact for MacNeal's reasons for terminating Washington, and demonstrating pretext is all but an impossible task.
Washington has failed to demonstrate that evidence exists to support a fact finder's decision in his favor on his prima facie case or pretext. Therefore, he has not raised a genuine issue of material fact as to the question whether MacNeal discriminated against him because of his race.
Washington's section 1981 claim is similarly doomed. Section 1981 bars all racial discrimination with respect to making and enforcing contracts. 42 U.S.C. § 1981(a). First, Washington never alleged in his amended complaint or otherwise demonstrated that he had a contractual relationship with MacNeal. "In order to bring a section 1981 claim there must at least be a contract." Gonzalez v. Ingersoll Millina Mach. Co., 133 F.3d 1025, 1034 (7th Cir. 1998). Furthermore, the section 1981 claim fails for the same reasons his Title VII claims faltered. In his amended complaint, Washington's section 1981 claim is based on the same facts as his Title VII claims. While Title VII and section 1981 are directed toward different types of discrimination, our court of appeals has determined that "[t]he same standards governing liability under Title VII apply to section 1981." Id. at 1035. Thus, Washington's section 1981 claim fails for the same reasons his Title VII claims fail.
Conclusion
There is no genuine issue of material fact as to Washington's Title VII and section 1981 claims against MacNeal. Accordingly, MacNeal is entitled to judgment as a matter of law on Washington's amended complaint, and its motion for summary judgment is granted. This is a final and appealable order.