Opinion
IP 02-0316-C-M/S
August 19, 2003
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on defendant's, Carrier Corporation ("Carrier"), Motion for Summary Judgment on the claims of plaintiff, Michael J. Brown, Jr. ("Brown"). Brown's claims include a disparate treatment claim under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), an ADA failure to accommodate claim, and a retaliatory discharge claim. Carrier has moved for summary judgment on all of Brown's claims. The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. FACTUAL BACKGROUND A. CARRIER'S MANUFACTURING PROCESS
Carrier, a manufacturer of air conditioning, heating, and refrigeration equipment, utilizes concepts of lean manufacturing. Def.'s Stmt. of Facts at 4. The goals of lean manufacturing are to establish a continuous flow of raw material to finished goods; to produce only what is needed; and to build to order. Id. Lean manufacturing uses "Takt time" as the rate or time in which a completed product is finished. Id. Takt time is established by customer demand, and Takt time synchronizes the pace of the assembly line to match the pace of sales. Id. Accordingly, it is critical that Carrier's various manufacturing departments meet their assigned Takt times. Id. To do so, their employees (called "Production Associates") must meet production quotas to maintain a continuous flow in the manufacturing process.
B. BROWN'S FIRST EEOC CHARGE
Brown first applied for work with Carrier in April 2001. Def.'s Tab A, Ex. 2. Carrier contacted Brown and stated that it would like to begin the preliminary hiring process. Id. Brown scheduled and completed his mandatory physical and drug screen. Id. The examining doctor sent Brown the results, but Brown never heard anything else from Carrier about the job. Id.
Brown, who suffers from epilepsy and Attention Deficit/Hyperactivity Disorder ("ADHD"), filed a discrimination charge with the EEOC against Carrier on or about August 6, 2001. Def.'s Tab A, Ex. 2. Brown alleged that Carrier discriminated against him on the basis of his disability by subjecting him to a prohibited medical inquiry/exam and by failing to hire him once it received his medical report indicating that he suffered from epilepsy and ADHD. Id. Per Carrier's discussions with the EEOC, Carrier agreed to hire Brown as a probationary Production Associate, and the EEOC dismissed the suit. Def.'s Tab A, ¶ 14.
C. BROWN'S EMPLOYMENT WITH CARRIER
Carrier hired Brown as a probationary Production Associate B employee on August 27, 2001. Def.'s Stmt. of Facts at 5. Per the written job description, Production Associate B employees perform assembly, wiring, adjusting, or testing operations in the construction of furnaces, air conditioners, or associated components. Def.'s Tab A, Ex. 3. Their typical duties include: assembling tubing and pipe fittings; assembling fabricated sheet metal parts; assembling motors, shafts, and fan assemblies; stripping wires, forming, smoldering, and assembling small electrical components; cutting and forming tubes; testing and adjusting to meet operating specifications; and packing units in cartons or crates where specified. Id.
Carrier initially assigned Brown to Department 7128. Def.'s Stmt. of Facts at 5. Department 7128's production requirement is 875 furnaces for each 9.2 hour shift. Id. Department 7128's Takt time is 38 seconds per unit. Id.
Steve Cox ("Cox"), Carrier's Labor Relations Manager, quickly recognized Brown's inability to keep up with the assembly line in Department 7128 due to his repeated failure to meet his production quota. Def.'s Stmt. of Facts at 7. In an effort to assist Brown in his production efforts, Carrier transferred Brown to Department 7166, which was slower-paced than Department 7128. Id. Department 7166, which produces fan coils, has a production requirement of 650 units for each 9.2 hour shift and a Takt time of 51 seconds per unit. Id. at 5.
Even after the switch to Department 7166, Brown's performance was poor. Id. at 6. Brown's Department Supervisor, Mike Coulombe ("Coulombe"), spoke with Brown on numerous occasions with respect to his continued failure to keep up with the assembly line. Id. Coulombe also informed Brown to refrain from idle talk with co-workers while the assembly line was running, in light of his continued failure to meet his production quota. Id.
Carrier made further efforts to aid Brown in his production output. It temporarily assigned a Master Assembler to Brown on more than one occasion to provide him with additional training and to help him keep the assembly line on pace. Id. Coulombe himself also provided additional training for Brown. Id. Despite these efforts, Brown could not meet his production quota. Id. In fact, he never met his production quota. Id. Brown asked Cox to be patient with him, to give him more time for production, and to give him a chance. Id.
D. TERMINATION OF BROWN'S EMPLOYMENT
Due to Brown's failure to meet the production quotas, Coulombe informed Cox that Brown was a candidate for termination during the probation period. Def.'s Stmt. of Facts at 7. Coulombe rated Brown as "below average" in three of five categories in his evaluation. Id. Specifically, Coulombe rated Brown "below average" on his ability to "pay attention to detail," "work well in a team," and "take initiative/think on the job." Id.
On September 25, 2001, Brown reported to work late. Def.'s Stmt. of Facts at 8. Brown did not call in or inform anyone at Carrier that he would be late. Id. Cox met with Brown that day and informed him that Carrier was firing him. Id. Carrier sent Brown a termination letter that stated:
"This letter is to confirm that the termination of your probationary employment with Carrier, effective today, for attendance and job performance issues." Def.'s Tab B, Ex. 24. The letter was dated September 25, 2001. Id.
E. BROWN'S DISABILITY
Brown was diagnosed with epilepsy as a child. Def.'s Stmt. of Facts at 8. Brown began taking medication for his epilepsy in 1974 and currently takes 800 milligrams of Tegretol for his condition. Id. Because of his medication, Brown has not had a seizure since 1987. Id. Despite his epilepsy, Brown is able to perform manual tasks and household chores, drive his truck, work, take care of himself, and help with the upkeep and construction of a friend's property in Owen County. Id.
Brown also suffers from ADHD. Id. ADHD affects Brown's ability to concentrate and/or focus. Id. According to Brown, ADHD also exacerbates his emotional and communication problems. Id.
F. PLAINTIFF'S SECOND EEOC CHARGE
Brown filed a second discrimination charge with the EEOC on or about September 25, 2001. Def.'s Stmt. of Facts at 9. In his charge, Brown checked the disability discrimination and retaliation boxes, and stated that the discrimination took place on September 25, 2001. Id. In the narrative section, Brown alleged:
On September 25, 2001, I was 35 minutes late for work as the result of a documented medical emergency. When I reported for work, because of this emergency, I was wearing an open-toed medical shoe. Personnel Director, Steve Cox, told me I was being terminated for this tardiness. I believe that there have been other probationary employees who have been late, and have not been terminated.
I believe that I have been discriminated against because of my disability, by being regarded as disabled, and in retaliation for having previously opposed discrimination, in violation of Americans with Disabilities Act.
Def.'s Tab B, Ex. 27.
G. CARRIER'S ASSOCIATE HANDBOOK
Carrier has an Associate Handbook which includes its Reaffirmation of Policy of Equal Employment Opportunity. Def.'s Stmt. of Facts at 3. The policy prohibits discrimination on the basis of disabled status and any other protected characteristic. Id. The Associate Handbook also has a policy pertaining to probationary employees. Id. This policy states that all probationary employees are subject to a 90-day working trial period wherein Carrier determines their suitability for transfer to regular status. Id. The policy further states that Carrier may terminate probationary employees for failing to meet company performance standards and for being absent and/or late for any reason during the probationary period. Id. Specifically, Rules 7 and 15 provide that Carrier may terminate an employee for "interfering with production" and failing to "meet quality and/or production standards." Id. Brown received a copy of the Associate Handbook. Id.
Carrier also has a Labor Agreement ("Agreement") with the United Steelworkers of America, Local Union No. 1999. Id. at 4. Per Article 8 of the Agreement, an employee's promotion transfer, and shift preference opportunities increase in proportion to length of continuous service, i.e., seniority. Id. Article 4 further states that all new employees are probationary employees until they have completed 90 days of continuous service. Id. During the 90-day probationary period, Carrier is the sole and exclusive judge of probationary employees' abilities and qualifications. Id.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith 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.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, the Court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to [her] case, one on which [she] would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit has suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. See Holland, 883 F.2d at 1312. As the Seventh Circuit emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "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). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. See Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
III. DISCUSSION A. DISPARATE TREATMENT UNDER THE ADA
Brown asserts that Carrier discriminated against him on the basis of his disability. Under the ADA, an employee may present either direct or indirect evidence of employer discrimination. See, e.g., Pugh v. City of Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001). Because Brown has no direct evidence of discrimination, he must rely on indirect evidence to establish his prima facie case. To survive summary judgment, Brown must demonstrate that: (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job either with or without reasonable accommodation; and (3) he suffered from an adverse employment action because of his disability. See Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669-70 (7th Cir. 2000).
Once Brown establishes his prima facie case, the burden shifts to Carrier to articulate a legitimate, nondiscriminatory reason for its adverse employment action. See Bekker, 229 F.3d at 672. If Carrier meets its burden, the presumption of intentional discrimination disappears, and Brown must prove, by a preponderance of the evidence, that Carrier's proffered reason was a pretext for intentional discrimination. See id.
Although Carrier disputes whether or not Brown has established his prima facie case, the Court will proceed directly to the issue of pretext because it is dispositive. See Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 572 (7th Cir. 1998) (proceeding directly to the issue of pretext). Carrier offers two legitimate, nondiscriminatory reasons for terminating Brown's employment: (1) Brown consistently failed to meet his performance quotas, and (2) Brown reported to work late on September 25, 2001, and did not inform anyone at Carrier that he would be late that day.
Brown expends little effort in responding to Carrier's proffered reasons. In his one-page discussion section, Brown appears to concede the disparate treatment claim by not directly mentioning it. Undisputed facts demonstrate that Brown's performance was deficient. Brown himself testified that he failed to meet production quotas, even after Carrier transferred him to the slower-paced department. Brown received a "below average" rating in three of the five categories of his probationary period evaluation. In addition, Brown admits that he was late on September 25, 2001, and he does not allege that the medical emergency that day was related to his disability. Moreover, Brown admitted that he received a termination letter from Carrier that explained that he was fired for attendance and job performance issues. Brown Depo. at 194-96.
Brown has failed to cast any doubt on Carrier's legitimate, nondiscriminatory explanation for its decision to fire him. It is not the Court's job to make arguments for Brown, or to scour the record in search of evidence to defeat a motion for summary judgment. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment with respect to the disparate treatment claim.
B. FAILURE TO ACCOMMODATE CLAIM
Carrier maintains that summary judgment is appropriate with respect to the failure to accommodate claim because Brown failed to include it in his EEOC charge. The general rule is that a plaintiff may not bring claims under Title VII that were not originally brought in the EEOC charge. See Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995). "This rule serves two purposes: affording an opportunity for the EEOC to settle the dispute between the employee and employer and putting the employer on notice of the charges against it." Id. (citing Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)). However, in Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164 (7th Cir. 1976) (en banc), cert. denied, 429 U.S. 986 (1976), the Seventh Circuit established a test that allows Title VII plaintiffs to assert claims not included in the EEOC charge. See id. at 167. "To include a discrimination claim in a federal district court complaint that was not brought in the charges filed with the EEOC a plaintiff must pass the two prong test of Jenkins: (1) the claim is like or reasonably related to the EEOC charges, and (2) the claim in the complaint reasonably could develop from the EEOC investigation into the original charges." Harper, 45 F.3d at 148 (citing Jenkins, 538 F.2d at 167).
In his September 25, 2001, EEOC charge, Brown clearly alleged disability discrimination and retaliatory discharge. He focused on the events of September 25, 2001, the day he was fired. Brown did not assert a failure to accommodate claim in the charge. Nor did Brown detail any of the facts that he cites in his complaint as support for his failure to accommodate claim. Specifically, Brown now asserts that the company should have accommodated him by providing him with more probationary time and training.
The Seventh Circuit addressed a similar issue in Green v. Nat'l Steel Corp., 197 F.3d 894, 897-98 (7th Cir. 1999). As in this case, the plaintiff in Green included facts supporting a disparate treatment claim in his EEOC charge, but failed to allege failure to accommodate or include any facts about the issue. See id. The Seventh Circuit held that the failure to accommodate claim was not properly before the court because it was not reasonably related to the disparate treatment charge. See id.
Brown briefly attempts to distinguish Green from the instant case on the facts, and argues that his failure to accommodate claim could reasonably be expected to arise from an EEOC investigation of the disparate treatment claim. However, Brown reads Green too narrowly. Green held that disparate treatment claims and failure to accommodate claims are not reasonably related:
As we have stated previously, a failure to accommodate claim is separate and distinct from a claim of discriminatory treatment under the ADA. In fact, the two types of claims are analyzed differently under the law. Therefore, they are not like or reasonably related to one another, and one cannot expect a failure to accommodate claim to develop from an investigation into a claim that an employee was terminated because of a disability.
Green, 197 F.3d at 898 (emphasis added). Green is squarely on point, and bars Brown from asserting a failure to accommodate claim that was not included in his EEOC charge. See also Jones v. Sumser Ret. Vill., 209 F.3d 851, 853-54 (6th Cir. 2000); Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997). Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment with respect to the failure to accommodate claim.
Even if Brown were allowed to assert his failure to accommodate claim, he does not address the third prong of his prima facie case. To survive summary judgment on a failure to accommodate claim, a "plaintiff must first show: (1) that he was disabled or is disabled as defined by the [ADA], (2) that his employer was aware of the disability, and (3) that he was qualified for the position in question." Contreras v. Suncast Corp., 237 F.3d 756, 762 (7th Cir. 2001). Brown has not shown that he was qualified for the position in question, nor has he responded to Carrier's well-supported arguments on the issue. Accordingly, Carrier would be entitled to summary judgment even if Brown had properly asserted his failure to accommodate claim in his EEOC charge.
C. RETALIATION
In both his EEOC charge and his complaint, Brown alleges retaliatory discharge in violation of the ADA. 42 U.S.C. § 12203(a). Carrier argues that it is entitled to summary judgment on the retaliation claim. In his response, Brown fails to address Carrier's arguments about the retaliation claim.
A recent Seventh Circuit case clarified the proper summary judgment standard for courts considering retaliation claims. See Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 643-44 (7th Cir. 2002) (creating "a new rule for adjudication of retaliation cases"). There are two distinct routes to prevent/obtain summary judgment in a retaliation action. See id. at 644. The first avenue "is to present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which he complains." Id. In this case, because Brown has no direct evidence of retaliation, he must resort to the second route:
[T]he adaptation of McDonnell Douglas to the retaliation context . . . requires the plaintiff to show that [1] after filing a charge [2] only he, and not any similarly situated employee who did not file a charge, [3] was subjected to an adverse employment action [4] even though he was performing his job in a satisfactory manner. If the defendant presents no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment. Otherwise there must be a trial.
Id. (numbers added). Brown need not present evidence of a "causal link" between the protected expression in which he engaged and the adverse employment action of which he is complaining. See id. at 642-43 (reasoning that the imposition of a causation requirement on a plaintiff proceeding under the McDonnell Douglas retaliation test essentially required direct evidence of retaliation rather than indirect evidence for which McDonnell Douglas was designed).
Carrier argues, inter alia, that Brown's retaliation claim must fail because he cannot establish that he was performing his job in a satisfactory manner. The Court agrees. Undisputed evidence shows that Brown never met his production quotas. Carrier transferred him to a slower-paced department, and his production still was deficient. Brown received a "below average" rating in three of the five categories of his evaluation. Brown does not respond to Carrier's arguments on the retaliation claim or point the Court to any outcome determinative fact disputes on the issue. Because Brown cannot show that he was performing his job in a satisfactory manner, he cannot establish a prima facie retaliation case. In addition, even if Brown could establish a prima facie retaliation case, he has not rebutted Carrier's legitimate, nondiscriminatory explanation for his termination. Accordingly, the Court GRANTS Carrier's Motion for Summary Judgment on the retaliation claim.
IV. CONCLUSION
For the reasons stated herein, the Court GRANTS Defendant's Motion for Summary Judgment in its entirety.