Opinion
CAUSE NO. IP02-0850-C-T/K.
February 13, 2004
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Adil K. Tarapore, has brought suit against Defendant, McNamara, LLC, under Title VII of the Civil Rights Act of 1964, alleging that after the terrorist attack on the World Trade Center on September 11, 2001, he was placed on probation and then terminated by the Defendant, and he experienced a hostile work environment, because of his national origin. Additionally, Mr. Tarapore claims that McNamara retaliated against him for filing a charge with the EEOC. The Plaintiff also brings action under the state law theory of intentional infliction of emotional distress. This matter comes before the court on the Defendant's Motion for Summary Judgment. The court decides the matter as follows:
I. Facts
The following story is told in the light most favorable to the non-movant, Mr. Tarapore. Mr. Tarapore was born in Bombay, India, and emigrated to the United States around February 1988. In January 1999, Mr. Tarapore began working for McNamara in the floral division of Engledow. (Tarapore Dep. at 46:23-25, 47:11, 19-21.) Mr. Tarapore's position was Customer Service Manager ( Id. at 51:16) and his primary responsibility was to manage McNamara's call center ( Id. at 51:20-21). As Customer Service Manager, Mr. Tarapore oversaw the daily operations of the telephone center, supervised and scheduled call center employees, and ran reports off the Redbook Technologies Incorporated (RTI) system. (Farris Dep. at 40:24 to 41:3.) The RTI is the order entry and accounting system for McNamara's floral division. ( Id. at 21:3-5; 42:20.) From January 1999 to March 2000, Mr. Tarapore reported to Jim Engledow. (Tarapore Dep. at 51:7-9.)In March 2000, McNamara was acquired by Marsh Supermarkets. (Farris Dep. at 9:7-11.) With the acquisition, Toomie Farris became President and CEO of McNamara. ( Id. at 18:2-5.) Mr. Tarapore remained in the position of Customer Service Manager. ( Id. at 20:23-24; 30:1-4.) When Mr. Farris took over operations, he became Mr. Tarapore's immediate supervisor. (Tarapore Dep. at 85:23-25; 103:15-18.)
After placing Mr. Tarapore on probationary status on October 3, 2001, Mr. Farris terminated Mr. Tarapore's employment on approximately February 25, 2002. (Farris Dep. at 399:5-6.) McNamara articulates five separate reasons for terminating Mr. Tarapore, but they all involve McNamara's dissatisfaction with Mr. Tarapore's performance as Customer Service Manager. The reasons are as follows: First, although Mr. Farris told Mr. Tarapore, as early as April 2001, not to hire any new full time employees, Mr. Tarapore hired three new full time employees in the summer of 2001. Second, Mr. Tarapore failed to maintain hard copies or backups of critical data from the ACD computer system, resulting in the loss of over a year's worth of data. Third, there were morale problems among the employees in Mr. Tarapore's department and times when customer service representatives had too much downtime between calls with nothing to do. Fourth, Mr. Tarapore never achieved a zero call abandonment rate while he was manager of the customer service center. Fifth, Mr. Tarapore failed (with the possible exception of creating a staff training manual) to try to resolve any of the identified performance problems within the 90-day probation period. (Def.'s Br. Supp. Mot. Summ. J. at 19-20.)
Mr. Tarapore alleges that he was placed on probation and terminated because of his national origin after the September 11, 2001, World Trade Center attack. He also alleges that he was terminated in retaliation for filing a charge with the EEOC.
A. March 2000 to September 11, 2001
The first half of the rest of this background section sets out the pertinent facts to this summary judgment motion, i.e., the facts related to McNamara's five facially legitimate explanations for terminating Mr. Tarapore's employment. The second half examines the events that took place after September 11, 2001.
After taking over McNamara, Mr. Farris had no formal meetings, individually, with Mr. Tarapore. (Farris Dep. at 35:20-23.) He would, however, have informal conversations with him on almost a daily basis concerning issues related to every day operations of the business. ( Id. at 36:3; 16-17.)
1. Abandonment Rate
Customer calls to McNamara's telephone center are handled by an automated call distribution (ACD) system. (Farris Dep. at 45:8-9.) The system distributes incoming calls to the next available customer service representative. (Tarapore Dep. at 61:15-24.) The ACD system has the capacity to track data, such as the time of day the calls come into the center, the number of the calls that come in during any given period, and the customer service representative to whom the call is distributed. (Farris Dep. at 49:9-14.)
For Mr. Farris, the number of abandoned calls that was acceptable per week was zero. (Farris Dep. at 51:12-16.) According to Mr. Farris, "while zero [was] my ultimate goal, trying to maintain something between one and three percent would not be alarming." ( Id. at 51:23-25.) Mr. Tarapore also gave the same goal of a zero percent abandonment rate to his staff. (Tarapore Dep. at 199:14-21.)
The ACD system records abandoned calls, that is, calls that end with the callers hanging up after the system answers them. (Farris Dep. at 50:7-9; Tarapore Dep. at 64:8-23.) Although the system tracks the number of abandoned calls, it cannot register why a call is abandoned. (Farris Dep. at 50:22-23; Tarapore Dep. at 65:6-7.) The lowest call abandonment rate that Mr. Tarapore achieved was a rate of less than one percent of over 500 calls. (Tarapore Dep. at 147:21-22.) At times, in order for the phones to get answered in a timely manner, Mr. Tarapore would answer phone calls with his staff. ( Id. at 148:2-5.)
On February 27, 2001, Mr. Tarapore informed Mr. Farris that the report for Valentine's week (February 11 through 17) showed a reduction in the abandoned call rate of 3 percent when compared with the same week of the previous year. (Pl.'s Ex. I.) Mr. Farris responded: "Good job on the reduction in %, especially considering the volume. Remember my goal is always 0% on abandonment." ( Id.) On June 18, 2001, Mr. Farris sent an email to Mr. Tarapore stating as follows: "I know that we have new people in training but 3.6% Abandonments (56 calls) seems very high for a summer week. We sure could have used some of those sales!!!" (Farris Dep. at 196:4-8; Pl.'s Ex. N.) This, however, was the only documented instance out of the entire summer of 2001 when Mr. Farris communicated to Mr. Tarapore that the abandonment rate was above his expectations. ( See Farris Dep. at 200:1-14.)
2. Reports
For the most part, Mr. Tarapore consistently submitted to Mr. Farris weekly reports reflecting abandonment rates. (Farris Dep. at 196:15-21; Tarapore Dep. at 193:18-21.) These reports were created with data extrapolated from the ADC system and the RTI system. (Farris Dep. at 197:22-23.) Lynn Gorrell, McNamara's controller, was responsible for setting up the template for the reports ( Id. at 197:1-9), and Mr. Tarapore was responsible for plugging in the numbers to create the reports ( Id. at 197:8-14). As controller, Mr. Gorrell was responsible for "financial accounting, reporting analysis, performance analysis" and was "involved in technology, from a hardware and software standpoint." ( Id. at 37:25; 38:5-8.) He was also responsible for analyses of specific departments within the company in terms of performance and staffing. ( Id. at 40:11-17.)
With the reports that were created, Mr. Farris was in a position to monitor the abandoned call rates. ( Id. at 200:16-17.) Although Mr. Farris did not regard the reports provided by Mr. Tarapore as addressing all of his concerns with respect to abandoned call rates, he testified that he is unsure whether he communicated this to Mr. Tarapore. ( Id. at 239:2-9.) Mr. Farris sought reports that would overlay the ACD phone call data, including abandonment rates, with scheduling and staffing information. ( Id. at 56:12-16; 92:10-16.) Mr. Farris did not tell Mr. Tarapore exactly what type of report he was looking for until Mr. Tarapore's review on October 3, 2001. (Tarapore Dep. at 166:17-20.)
3. Staffing
Shortly after Mr. Farris became Mr. Tarapore's supervisor, he told Mr. Tarapore to replace full-time employees with full-time employees; and part-time employees with part-time employees. ( Id. at 155:17-22.) But in April 2001, via email, Mr. Farris instructed Mr. Tarapore not to hire any more full time employees. On April 17, 2001, Mr. Farris wrote: "I would like an update on your search for C.S. help, including the following: 1. how many and classification (f/t or p/t) for any positions that are open." (Pl.'s Ex. K.) In response, Mr. Tarapore, on April 17, 2001, sent the following reply:
At present I only have 1 part time position open. Lynn and I have talked about this issue on quit [sic] a few occasions and we seem to agree that there are chances that I might loose [sic] somebody in Customer Service, and that we need to hire a full time employee. Although this is just a possibility I am preparing myself for it, by letting all the applicants know that this part time opportunity may change to a full time position, making it very clear that if they do not wish to, it will not be held against them in any way whatsoever.
(Pl.'s Ex. L.) Mr. Farris, on April 18, 2001, responded:
My biggest concern in C.S. is still your flexibility. This part time position WILL NOT turn into full time. IF you need to hire more I will only authorize part time hires. I have hinted and talked to you several times about this flexibility issue and you still gravitate to full time hires which gives you no room to flex at holidays. I know this is probably much easier to manage and schedule but in my mind it is not a prudent decision.
( Id.)
An overriding concern for Mr. Farris was for the call center to have more flexibility in staffing, including flexibility for time of day staffing, day of week staffing, and peak holiday staffing. (Farris Dep. at 68:15-20.) Flexibility in peak holiday staffing concerns McNamara's ability to appropriately staff the call center for peak demand periods, such as the days leading up to Valentine's Day. ( Id. at 70:16-21.) Mr. Farris wanted Mr. Tarapore to hire more part-time employees because he believed it would create more flexibility in staffing for peak holiday periods. ( Id. at 80:11-25 to 81:1-12.) Furthermore, Mr. Farris believed staffing effectiveness was inextricably linked to call abandonment rates. ( Id. at 73:12-14.)
In addition to abandonment rates, the previous year's ACD data was used to predict a current year's staffing needs. ( Id. at 82:10-20.) In general, that data was maintained by the ACD system. ( Id. at 83:5.) However, in anticipation of problems related to the turn of the century ("Y2K"), a new system was installed prior to December 31, 1999. ( Id. at 85:13-15; Tarapore Dep. at 170:19-21.) With the new system, ACD data was not being retained; rather the system was self-purging every thirty days. (Farris Dep. at 86:9-11.) This was not discovered until April 2001. ( Id. at 86:8.) Mr. Tarapore was not responsible for this development. As a consequence of the self-purging, no electronic call data records had been saved for any period of time prior to March 2001. ( Id. at 96:2; 14-16.) Thus, from March 2001 to March 2002, the previous year's ACD electronic data was not available for Mr. Tarapore's review. ( Id.) While this was of little consequence for a normal sales week, the information was important to review when scheduling staff for peak holiday periods. ( Id. at 97:22-24.) Despite the loss of the electronic data, however, Mr. Tarapore maintained paper summary reports for peak periods in a holiday file. ( Id. at 88:15-17.) These summaries would basically show, by employee, numbers of calls taken, total calls taken for the call center, abandoned calls for the call center, and typically sales per hour. ( Id. at 90:6-10.)
4. Sales
Mr. Farris had no absolute standard for call center employees in terms of sales. ( Id. at 111:2-3.) Unlike the interaction between a customer and a retail employee, a customer calling in to the call center to place an order for flowers more than likely has already decided what he or she needs. ( Id. at 111:10-12.) Nonetheless, a service representative could suggest "add-on" sales, such as an additional rose for an additional cost. ( Id. at 112:14-18.) In addition, based on information maintained in McNamara's database, a service representative could access information about previous sales to the same customer and, based on this information, could suggest a renewal sale. ( Id. at 113:2-3.) Last, the service representative could employ an "average sale" technique, offering a customer three wide price ranges with the theory being that customers generally select the middle price. ( Id. at 113:16 to 114:11.)
5. Employee Evaluation
Mr. Farris would typically evaluate employees in association with payroll changes. ( Id. at 130:5-7.) In or about June 2001, Mr. Farris prepared a form approving a salary adjustment — an increase of 3 percent — for Mr. Tarapore, which was to go into effect on October 14, 2001. ( Id. at 152:10-17; Pl.'s Ex. B.) Mr. Farris approved the raise, even though he had discretion to deny it. (Farris Dep. at 152:18-19.) Sometime prior to October 3, 2001, Mr. Farris decided not to implement the salary adjustment. ( Id. at 149:20-25.)
When Mr. Farris takes disciplinary measures for an employee who is a bad performer, he generally starts with "verbal coaching, informal verbal coaching, and suggestions that include what [his] expectations are." ( Id. at 124:1-4.) If there is still a problem, "[t]he verbal coaching would become more stern, more frequent, in terms of both [his] tone and the content, but it would still continue to be verbally based." ( Id. at 124:7-10.) "Then . . . depending on the type of need there was, or deficiency in behavior that [he] was experiencing, [he] would likely then continue, probably, with some sort of written request for something . . . just to reinforce in writing 'I haven't gotten this, I haven't seen this, we have talked about this. . . .'" After that, Mr. Farris would require a performance plan from the employee. ( Id. at 124:12-23.)
6. August 2001
In mid to late August 2001, Mr. Tarapore sent the following memorandum to Mr. Farris:
I would like to take this opportunity to keep you informed about the progress in the Customer Service Department.
1. Morale has been high ever since Shirley was terminated.
2. Everybody including Sharon is trying to see the cup half full rather than half empty.
3. I have let Frank know that at any given time he can come in and give the girls something to tag. He has been very good at it.
4. Sharon has just finished making about Three Thousand Bows for Christmas production.
5. Cathy Graham from production has been making fabulous designer pieces and the girls seem to like them and [they] are selling like Hot Cakes.
6. We are trying to get every order coming in to us and putting a great effort to upsell them by suggesting balloons, plush toys and vases as add on items.
7. Abandoned calls have decreased due to extra staffing which was especially needed during the lunch breaks.
8. The four new people David, Patricia. P.[,] Patricia. C., and Mariann are doing very well.
9. I had noticed a few weeks ago that Patricia Powell was not doing so good. I sat down with her and discussed her concerns and the areas that she needed help on. After talking to her I determined that she needed to be re-trained. I started her retraining immediately for another two-week period and now she seems to be doing a lot better. Patricia is a very customer oriented person and even though she is a little slow at learning she does have excellent people skills.
10. David is doing great in the back room and has proved himself to be a right person for the job. He has learn[ed] most of the skills needed to be in the back room. He is now working on getting a little more speed at what he is doing. He starts his training on the phones with myself and Jan on September 4th, 2001 for a period of 2 weeks which will make another significant improvement, not only for decreasing abandon[ed] calls but also his own skills in the back room.
11. The back room now is not covered during David's lunch breaks thus giving me an extra person on the phones. During these slow periods David comes back at 2 PM from his lunch break and catches up with all that has printed. (we still keep an eye on the order printed for the same day and get it out as soon as possible.[)] This will obviously change during busy/holiday times.
12. Mistakes such as dates, products, zip-codes, addresses, etc are taken very seriously and I discuss them with the appropriate person on a one on one basis.
13. Every measure is taken to make sure that all our Customers feel comfortable placing their orders with us, especially the sympathy ones.
14. My efforts of having them look in the cooler has finally paid off. The girls now go to the cooler on a daily basis to see what we actually have rather than depending strictly on the flower list.
15. I have also set up a perk program for my staff concerning abandoned calls. At any given day if we have zero abandons then every person working that day on the phones gets $10.00. I do realize that this is a very hard goal to achieve but not impossible. I have had days when we had only one abandoned, and if we could get only one we can definitely . . . get zero.
16. I have also implemented a policy that everytime we have a funeral order we put our initials, and the word "Verified["] by it so that the girls take the initiative to actually check it rather than taking the customer[']s word for it. It has been one of my concerns that a lot of times due to emotional stress the customer is confused and might give us the wrong information.
(Pl.'s Ex. V.)
Mr. Farris testified that Mr. Tarapore's actions and approach to solving problems, as documented by the August 2001 memorandum, specifically paragraphs 1, 4, 6, 12, and 15, were in accordance with Mr. Farris' expectations of a department manager. (Farris Dep. at 271:7-13, 19-24; 273:3-7, 13-16; 276:9-12.) Mr. Farris does not dispute Mr. Tarapore's claim under paragraph 7 that abandoned calls decreased due to extra staffing during breaks. ( Id. at 273:21-24.)
B. Post-September 11, 2001
On September 11, 2001, the buildings of the World Trade Center in lower Manhattan, New York, were struck by two fuel-laden aircraft that had been hijacked by Al Qaeda terrorists. Al Qaeda is a terrorist network with groups throughout the Middle East.
1. October 3, 2001 Meeting
On September 25, 2001, Mr. Tarapore sent an email to Mr. Farris, expressing a desire to meet with him and a fellow employee, Dennis Celleghin, to present some ideas. (Farris Dep. at 282:1-2; 8-10; 293:1-3; Pl.'s Ex. X.) The meeting was not held until October 3, 2001. (Farris Dep. at 284:10-14; 22-23; Pl.'s Ex. Y.) Dennis Celleghan was not present at the meeting of October 3, 2001. (Farris Dep. at 285:18-20.) While Mr. Farris recognized Mr. Tarapore's initiative in calling for a meeting to discuss his ideas ( Id. at 292:13-21), he nonetheless presented to Mr. Tarapore an employee performance report ( Id. at 294:3-14; Pl.'s Ex. AA). This was the first formal written evaluation ever drafted and presented to Mr. Tarapore by Mr. Farris. (Farris Dep. at 295:2-16.) Mr. Farris provided Mr. Tarapore with no advance notice of his intent to present him with the performance report. ( Id. at 314:20-23.)
The performance report, dated October 2, 2001, states as follows:
Review and plan regarding performance issues
In general Adil exhibits a good deal of commitment to the company, and a general willingness to work the necessary hours for management and makes efforts to carry out specific responsibilities of his job when they are presented. However there is a serious lack of leadership, analysis, accountability and creative problem solving. These shortcomings prevent an environment of continuous improvement from happening under Adil in the Customer Service Department.
Performance Analysis — There are many tools available to analyze productivity and scheduling needs within the ACD and RTI systems. I believe these tools are under-utilized. When asked to analyze call data Adil did not even realize that he had lost years of data on call history (everything older than 3 months self-purged) until pushed on the issue multiple times. Lynn has done most of the analysis and created the formats for weekly reporting that has been started. Adil has not led the charge in this area but reacts to requests from officers of the company. For example we have analyzed call abandonment times but not overlaid that data with call volume data to adequately draw conclusions regarding needed staffing levels.
Create Flexibility — Adil has been advised several times that we need to create a flexible staffing situation in the department to respond to varying call volume. We still have a staff in the department that is mostly full-time with minimal flexibility. It is easier to manage full-time employees than schedule in response to anticipated volume. It does not give us adequate staffing at peak holidays.
Staff Training — I do not see an adequate training program in place. Sitting behind a co-worker for a week simply does not prepare a new hire for the job at hand New personnel are not adequately prepared on policies, procedures, product or sales techniques. We have seen no formal or written plan.
Abandonments — We identified abandonments as a benchmark of measure for the department's success, with 0 being the goal. We have not seen 0 yet. Even if 0 is unrealistic to maintain for long periods we have not seen adequate commitment to achieving the goal, even for short periods. There is more staff in the department, and fewer calls and we still cannot achieve the goal.
Problem Solving — Adil shows a low level of skill for both identifying and proposing solutions for problems in his area. Generally officers or other management must point out areas for improvement and possible solutions. Adil will then try to implement solutions delivered to him.
Sales Leadership — Adil again does what he is told but offers no suggestions to increase sales volume in his unit. Add-on sales, reminder services (a part of RTI) are not implemented, no follow-up or pro-active list generation for holidays like Secretary's Week. Ideas for growing sales on the phones should come from that department; no proposals have been presented.
Leadership — While the group of individuals under Adil are savvy individuals, some with decades of experience in our company he has failed to earn their respect and fails to lead the group. Adil is usually responding to situations rather tha[n] leading the way. It is difficult to manage a group of experienced employees if you do not have their respect.
After discussing each of these items, Mr. Farris set out the following "Action Plan":
Notice is hereby given to Adil Tarapore that his performance in his position of Customer Service Manager falls short of expectations in the areas specifically mentioned above. There will be a 90-day probationary employment period starting immediately. His continued employment with the company is completely contingent upon his performance improvement during that period.
It is expected that if Adil wishes to continue employment with McNamara that he will provide a written plan for improvement to Toomie Farris and Lynn Gorrell in a joint meeting on or before October 19, 2001. That plan will be reviewed and feedback provided as necessary. Failure to address the above mentioned issues, and provide significant improvement within the 90 day probationary period will lead to termination.
(Pl.'s Ex. AA.)
On October 9, 2001, after Mr. Farris had given Mr. Tarapore a performance review and placed him on probation, Mr. Tarapore had his staff evaluate his performance as supervisor. (Tarapore Dep. at 113:14-23.) He distributed evaluations to his staff because after what Mr. Farris had said in his evaluation, Mr. Tarapore wanted to find out how his staff actually felt about him. ( Id. at 263:22-25; 264:1.) Mr. Tarapore created the evaluations with the assistance of the director of human resources of Engledow. ( Id. at 264:4-5.) Mr. Tarapore testified that he believes the nine evaluations included in the record comprise all of the evaluations he received. (Tarapore Dep. at 265:8-10.) For an overall rating, on a scale of 1 to 10, with 10 being the highest, Mr. Tarapore's staff gave him two scores of 8, one score of 7, one score of 10, and five scores of 9. (Dep. Ex. 10.)
On October 16, 2001, Mr. Tarapore filed his first charge of discrimination against McNamara with the EEOC.
2. Mr. Tarapore's Performance Plan
On or about October 19, 2001, Mr. Tarapore provided Mr. Farris with the requested performance plan. (Farris Dep. at 315:11-16; Pl.'s Ex. BB.) With respect to staff development and training, Mr. Tarapore set forth specific goals, which, Mr. Farris later testified, were responsive to the concerns he had raised in paragraph 4 of the performance review. (Farris Dep. at 316:23-25 to 317:1-4.) With respect to paragraph 3 of Mr. Farris' review entitled "Create flexibility," Mr. Tarapore set out his plans to "improve productivity and increase sales" and to reduce the number of abandoned calls. Mr. Farris testified that Mr. Tarapore's plan addressed some of the issues in the performance review. ( Id. at 321:16-25.) Additionally, Mr. Tarapore set forth ideas to increase total dollar volume of sales per paid CSR hour. Mr. Farris later testified that he regarded this as an attempt to respond to his concerns about sales leadership. ( Id. at 322:6-11; 323:2-5.) Furthermore, Mr. Tarapore set forth his goal to "develop reports, including graphs, that can be displayed in the department to encourage improved individual sales performance" and to "develop reports, including graphs, which allow management to easily track progress against stated goals." Mr. Farris testified that he regarded this as an attempt to respond to his call for performance analyses. ( Id. at 323:12.) Last, Mr. Tarapore stated his intent to "continue to track and report abandoned calls. As mentioned earlier, we will strive to reduce abandoned calls by one per week." Again, Mr. Farris considered this to be an "attempt to respond to my request." ( Id. at 324:11-12.)
3. Mr. Farris' Feedback on October 31, 2001
Prior to reviewing Mr. Tarapore's plan, Mr. Farris learned that Mr. Tarapore had filed an EEOC complaint against McNamara. ( Id. at 327:19-21.)
On October 31, 2001, Mr. Farris provided Mr. Tarapore with feedback on the performance plan. According to Mr. Tarapore, Mr. Farris handed Mr. Tarapore the October 31, 2001 memorandum without discussion: "Toomie Farris wanted to give me [the October 31 memo] and just walk out of there. He had nothing to do with about talking to me about anything at that point." (Tarapore Dep. at 338:16-20.) The memorandum stated:
1. Your action plan fails to address the manner in which you intend to improve in all of the areas raised in your performance review on October 2, 2001; and
2. Your action plan does not set forth the manner in which you intend to improve performance in any of the areas noted in your performance review within the ninety (90) day period, commencing October 2, 2001.
(Pl.'s Ex. CC.) Mr. Farris testified that he believed Mr. Tarapore's plan failed to address all of the areas in the performance review because Mr. Tarapore had not addressed two of the issues he had raised: problem solving and leadership. (Farris Dep. at 328:23-25 to 329:1-5.)
The same day, October 31, 2001, Mr. Tarapore responded to Mr. Farris' feedback. (Pl.'s Ex. DD.) In the memorandum, Mr. Tarapore addressed each of the 7 items that Mr. Farris had set out in the performance review. (Farris Dep. at 334:7-11.)
4. November 2001
On November 9, 2001, Mr. Tarapore wrote a memorandum copying several individuals within the Marsh corporate structure, in which he stated that he had responded to the October 3, 2001 performance review to the best of his abilities. (Pl.'s Ex. EE.) He further stated that Mr. Farris' October 31, 2001 feedback lacked specifics. (Farris Dep. at 351:22-23.) Mr. Farris admitted that Mr. Tarapore's observation was not incorrect. ( Id. at 352:1-2.)
On November 12, 2001, in response to Mr. Tarapore's November 9 email, Mr. Farris met with Mr. Tarapore. ( Id. at 352:12-13; 354:10-14.) Mr. Farris memorialized the meeting with his handwritten notes. Mr. Farris' handwritten notes indicate that Mr. Farris commenced the meeting by stating "these items are not meant to be harassing in any way. . . ." (Pl.'s Ex. FF.) The handwritten notes indicate that the meeting ended with the following discussion:
Further Issue
T.F. — Invited Adil to provide details of "Liscence [sic] Plate" incident listed in EEOC complaint. I can't do anything about things that I'm not aware of. It's Adil's responsibility to provide details: who, when, what was said. I will conduct investigation. Can do that today or any time.
A.T.: Firmly believe entire thing is based on discrimination.
T.F. — Not discriminating, this is based on performance issues. Tried to coach verbally for several months, still not getting results that [I] expect. escalates to a formal performance plan.
( Id.)
On November 19, 2001, Mr. Tarapore sent Mr. Farris a memorandum to recap the November 12, 2001 meeting and provide a response. (Pl.'s Ex. GG.)
5. November 2001 to February 25, 2002
Mr. Tarapore's probation was due to expire in early January 2002. (Farris Dep. at 389:9-11.) The probation, however, was extended to January 31, 2002. ( Id. at 390:5-8; 389:14-21.)
By November 27, 2001, Mr. Tarapore had started compiling a training manual for his staff. ( Id. at 382:5-7; Pl.'s Ex. II.) In fact, it appears that Mr. Farris reviewed an earlier copy of the manual. ( Id.) Additionally, on January 9, 2002, Mr. Tarapore produced, with the help of Lynn Gorrell, the controller of the company, call data analysis for the two weeks of the recent Christmas season and call volume/hours breakdown. (Farris Dep. at 385:4-7; Pl.'s Ex. JJ.) This was the type of report that Mr. Farris had wanted Mr. Tarapore and Mr. Gorrell to produce. (Farris Dep. at 385:20-24.) Also, by January 9, 2002, Mr. Tarapore was implementing all of Mr. Farris' sales suggestions that had been set forth during the meeting of November 12, 2001. ( Id. at 387:13-19.) Furthermore, during his testimony, Mr. Farris acknowledged that Mr. Tarapore had demonstrated efforts to reduce the number of abandoned calls. ( Id. at 363:10-11.) Mr. Farris also acknowledged that Mr. Tarapore was willing to work with others to increase sales ( Id. at 366:7-12) and that Mr. Tarapore had already instituted measures to increase sales ( Id. at 369:5-23).
The date of Mr. Tarapore's termination was February 25, 2002 ( Id. at 399:5-6), but the decision to terminate Mr. Tarapore had been made on January 28, 2002 (Pl's Ex. KK). Mr. Farris opted to terminate Mr. Tarapore on February 25, 2002, rather than at the end of the probation period, because Mr. Farris wanted to use Mr. Tarapore's services through the week of Valentine's Day. ( Id.)
6. Incident Underlying Hostile Environment Claim
Sometime in October 2001, Garry Funk, the design center manager, confronted Mr. Tarapore concerning inaccurate delivery data for standing orders processed by the service representatives in Mr. Tarapore's department. (Tarapore Dep. at 130:16-21.) Mr. Funk was one level above Mr. Tarapore on McNamara's manning table, but Mr. Tarapore did not report him. (Farris Dep. at 212:4-5; 22-24; 213:11.) Mr. Tarapore and Mr. Funk had a good working relationship in the past; however, "[f]ollowing September 11th, there was a drastic change in the way he behaved." (Tarapore Dep. at 130:11-12.)
On one occasion, Mr. Funk went into the call center and shouted at Mr. Tarapore at the top of his voice, telling the staff that he would make sure that Mr. Tarapore got fired. ( Id. at 130:18-21.) Mr. Farris considered Mr. Funk's behavior a violation of the Code of Conduct and told Mr. Funk to "tone it down." (Farris Dep. at 225:19-20; 228:8-10, 19-20.) Mr. Farris stated to Mr. Tarapore that the incident was "just one of [Mr. Funk's] temper tantrums." (Tarapore Dep. at 133:5-6.)
7. Procedural Disposition
A Notice of Right to Sue for the October 16, 2001, charge was issued on March 1, 2002. On March 6, 2002, Mr. Tarapore filed his second charge of discrimination against McNamara with the EEOC, to include a claim of retaliation. On May 29, 2002, Mr. Tarapore filed this action in the United States District Court for the Southern District of Indiana against McNamara and Marsh Supermarkets, Inc, who has since been removed as a Defendant. The Complaint alleged claims of discrimination based on national origin, hostile work environment, discrimination based on religious belief, and intentional infliction of emotional distress. On June 27, 2002, Mr. Tarapore received a second Notice of Right to Sue for his March 6, 2002 charge. On July 26, 2002, McNamara filed its Answer. Mr. Tarapore filed his Amended Complaint on August 28, 2002, and added a claim of retaliation. On October 1, 2003, McNamara filed this Motion for Summary Judgment. Mr. Tarapore filed the Plaintiff's Memorandum in Opposition on November 3, 2003. McNamara's Reply Brief was filed on November 24, 2003. Additionally, Mr. Tarapore filed a Surreply on December 5, 2003, in response to which McNamara filed a Motion to Strike on December 12, 2003, to which Mr. Tarapore filed a Response on December 18, 2003.
Mr. Tarapore originally sued McNamara, LLC and Marsh Supermarkets, Inc. The Plaintiff, Defendant McNamara, LLC, and Defendant Marsh Supermarkets stipulated to the dismissal with prejudice of Marsh Supermarkets. The court ordered the dismissal on September 26, 2003.
The parties stipulated to dismissal with prejudice of Count II of Mr. Tarapore's Complaint, which alleged discrimination on the basis of religion. The court ordered the dismissal on September 26, 2003.
II. Motion to Strike Surreply
McNamara moves to strike Plaintiff's Surreply on two grounds: first, because it was filed one day after the deadline, and second, because it does not meet the substantive requirements of Local Rule 56.1(d).
Procedurally, Local Rule 56.1(d) provides that a surreply brief may be filed "no later than seven days after service of the reply brief." S.D. Ind. L.R. 56.1(d). Federal Rule of Civil Procedure 6(e) permits three additional days when service is made by mail. Fed.R.Civ.P. 6(e). Additionally, Federal Rule 6(a) provides that "[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Fed.R.Civ.P. 6(a). Thanksgiving Day is a legal holiday. Fed.R.Civ.P. 77(c). Thus, if service of the Reply Brief was effectuated on November 24, 2003, under the court's calculation, the Plaintiff's Surreply Brief was due on December 9, 2003. Consequently, Plaintiff's Surreply was not untimely filed.
Substantively, Local Rule 56.1(d) provides: "If, in reply, the moving party relies upon evidence not previously cited or objects to the admissibility of the non-moving party's evidence, the non-moving party may file a surreply brief limited to such new evidence and objections. . . ." S.D. Ind. L.R. 56.1(d). Plaintiff's Surreply meets neither criterion. This is confirmed by the failure of the Plaintiff to identify any new evidence or any objections to evidence made by McNamara in the Reply Brief in its Response in Opposition to Defendant's Motion to Strike Surreply. Instead, Plaintiff's Surreply attempts to respond to arguments made by the Defendant in Reply. Defendant's Motion to Strike the Plaintiff's Surreply is GRANTED.
III. Summary Judgment Standard
Summary judgment should be granted only 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.'" Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 526-27 (7th Cir. 2003) (quoting Fed.R.Civ.P. 56(c) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Schuster v. Lucent Techs., Inc., 327 F.3d 569, 573 (7th Cir. 2003)). "A genuine issue of material fact exists 'only if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Id. at 527 (quoting Schuster, 327 F.3d at 573 (quoting Wade v. Lerner New York, Inc., 243 F.3d 319, 321 (7th Cir. 2001))).When considering motions for summary judgment, the court views all the facts and draws all reasonable inferences from the facts in the light most favorable to the nonmoving party. Id. at 526 (citing Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002)); Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 674 (7th Cir. 2003) (citing Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002)). "[A] court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citations omitted). "Rather, '[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.'" Id. (citing Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)).
IV. National Origin Discrimination
Mr. Tarapore can use either the "direct method" or "indirect method" to prove employment discrimination under Title VII. Cerutti v. BASF Corp., 349 F.3d 1055, 1060-61 (7th Cir. 2003) (citing Cianci v. Pettibone Corp., 152 F.3d 723, 727-28 (7th Cir. 1998)).
A. Direct Method
"Under the direct method of proof, a plaintiff may show, by way of direct or circumstantial evidence, that his employer's decision to take an adverse job action against him was motivated by an impermissible purpose." Id. at 1061 (quoting Cianci, 152 F.3d at 727). "Direct evidence is evidence that, if believed by the trier of fact, would prove discriminatory conduct on the part of the employer without reliance on inference or presumption." Id. (citing Rogers v. City of Chi., 320 F.3d 748, 753 (7th Cir. 2003); Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997)). "A plaintiff can also prevail under the direct method of proof by constructing a 'convincing mosaic' of circumstantial evidence that 'allows a jury to infer intentional discrimination by the decisionmaker.'" Id. (quoting Rogers, 320 F.3d at 753 and citing Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994)). One "flavor" of circumstantial evidence includes "suspicious timing, ambiguous statements, behavior towards other employees and so on." Volovsek v. Wis. Dep't of Agric., 344 F.3d 680, 689 (7th Cir. 2003) (citing Troupe, 20 F.3d at 736).
McNamara contends that Mr. Tarapore does not have any direct evidence of discrimination, and consequently, must rely on the indirect method. Mr. Tarapore, however, contends that direct evidence of discrimination exists, in the form of suspicious timing. Mr. Tarapore notes that at the end of August 2001, immediately before the terrorist attacks, Mr. Tarapore was acting in accordance with Mr. Farris' expectations. He contends that shortly after September 11, 2001, Mr. Farris' satisfaction with his performance changed and he was presented for the first time with a written evaluation of his work. Mr. Tarapore argues: "The timing of these events is 'suspicious' because, before the terrorist attack of September 11, 2001, Mr. Farris had not documented any concerns serious enough to warrant discipline, let alone termination. After September 11, 2001, Mr. Farris found it necessary to draw up an evaluation and impose an 'Action Plan' as a prelude to termination."
In the context of proving retaliation, where suspicious timing is often an issue, under the direct method, the Seventh Circuit has held that when the adverse action takes place "only a few days" after the protected activity, that may be sufficient to raise an inference of discrimination. Ajayi, 336 F.3d at 533 (citing McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 797 (7th Cir. 1997)); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998); Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994) ("Generally, a plaintiff may establish such a link through evidence that the discharge took place on the heels of protected activity." (citing Johnson v. Sullivan, 945 F.2d 976, 980 (7th Cir. 1991); Collins v. Illinois, 830 F.2d 692, 705 (7th Cir. 1987)). In the present case, the court cannot hold that any adverse action took place "on the heels" of September 11, 2001, so that Mr. Tarapore can prevail with only suspicious timing under the direct method. Mr. Tarapore was placed on probation, with the prospect of termination in 90 days, on October 3, 2001, which was a little over three weeks after September 11. See Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002) ("[W]e remind that mere temporal proximity between the filing of the charge of discrimination and the action alleged to have been taken in retaliation for that filing will rarely be sufficient in and of itself to create a triable issue" (citations omitted)).
B. Indirect Method
"If a plaintiff cannot prevail under the direct method of proof, he must proceed under the indirect method, i.e., the familiar McDonnell Douglas framework." Cerutti, 349 F.3d at 1061 (citing Adams v. Wal-Mart Stores, 324 F.3d 935, 939 (7th Cir. 2003)). " McDonnell Douglas is designed to give the plaintiff a boost when he has no actual evidence of discrimination (or retaliation) but just some suspicious circumstances." Stone, 281 F.3d at 643. Under the McDonnell Douglas burden shifting paradigm, Mr. Tarapore has the burden of establishing a prima facie case of discrimination for his termination. He must demonstrate that: "(1) [he] was a member of a protected class; (2) [he] was meeting [his] employer's legitimate job expectations; (3) [he] suffered an adverse employment action; and (4) similarly situated employees not in the protected class were treated more favorably." Haywood v. Lucent Techs., Inc., 323 F.3d 524, 530 (7th Cir. 2003) (citing McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973); Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002)). "If the plaintiff establishes a prima facie case of age, race, or national origin discrimination, the employer, to avoid liability, must then produce a legitimate, nondiscriminatory reason for the adverse employment decision." Cerutti, 349 F.3d at 1061 (citing Peele v. Country Mutual Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002)). "If the employer offers a legitimate, nondiscriminatory explanation for its decision, the plaintiff must then 'rebut that explanation by presenting evidence sufficient to enable a trier of fact to find that the employer's proffered explanation is pretextual [i.e., a lie].'" Id. (quoting Peele, 288 F.3d at 326).
For purposes of summary judgment, McNamara concedes that Mr. Tarapore is able to make out a prima facie case of discrimination. McNamara argues that summary judgment should be granted on Mr. Tarapore's national origin discrimination claim because Mr. Tarapore cannot show that the McNamara's reason for the termination is pretextual.
McNamara's Brief in Support of Summary Judgment states: "The present motion for summary judgment does not address any of the elements in Tarapore's prima facie case. Although not conceded by McNamara, a prima facie case is presumed for purposes of the present motion." (Def.'s Mot. Summ. J. at 18.)
1. Legitimate Explanation
McNamara articulates five separate reasons for terminating Mr. Tarapore: First, although Mr. Farris told Mr. Tarapore, as early as April 2001, not to hire any new full time employees, Mr. Tarapore hired three new full time employees in the summer of 2001. Second, Mr. Tarapore failed to maintain hard copies or backups of critical data from the ACD computer system, resulting in the loss of over a year's worth of data. Third, there were morale problems among the employees in Mr. Tarapore's department and times when customer service representatives had too much downtime between calls with nothing to do. Fourth, Mr. Tarapore never achieved a zero call abandonment while he was manager of the Customer Service Center. Fifth, Mr. Tarapore failed (with the possible exception of creating a staff training manual) to try to resolve any of the specific performance problems within the 90-day probation period. He did not revise his first action plan, he did not register for a management course and he never attempted to prepare the call analysis data Mr. Farris had requested.
2. Pretext
Mr. Tarapore agrees that McNamara has articulated facially legitimate reasons for his termination; thus, the burden shifts back to Mr. Tarapore. To demonstrate pretext, Mr. Tarapore must provide sufficient evidence demonstrating either that McNamara was "motivated by a discriminatory reason" or that McNamara's proffered explanation "is unworthy of credence." Zaccagnini, 338 F.3d at 676 (citation omitted); accord Schuster, 327 F.3d at 574 (citation omitted). Furthermore, "Where an employer offers multiple independently sufficient justifications for an adverse employment action, the plaintiff-employee must cast doubt on each of them." Lesch v. Crown Cork Seal Co., 282 F.3d 467, 473 (7th Cir. 2002) (citing Walker v. Glickman, 241 F.3d 884, 890 (7th Cir. 2001)).
Mr. Tarapore may attempt to demonstrate pretext with direct evidence that McNamara was "'more likely than not motivated by a discriminatory reason.'" Alexander v. Wis. Dep't of Health Family Servs., 263 F.3d 673, 682 (7th Cir. 2001) (quoting Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1039 (7th Cir. 1993)). Or, he may proceed indirectly "by attempting to show that the employer's 'ostensible justification is unworthy of credence' through evidence 'tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge.'" Schuster, 327 F.3d at 574-75 (quoting Testerman v. EDS Tech. Prods., 98 F.3d 297, 303 (7th Cir. 1996)). Mr. Tarapore, thus, "may avoid summary judgment by pointing to specific facts that place [McNamara's] explanation in doubt." Zaccagnini, 338 F.3d at 676 (citing Schuster, 327 F.3d at 578); see also Pugh v. City of Attica, 259 F.3d 619, 627 (7th Cir. 2001) (stating that in order to succeed, a plaintiff must "present evidence to create a material dispute as to the [defendant's] honest belief" in its proffered explanation (citing Green v. Nat'l Steel Corp., 197 F.3d 894, 899 (7th Cir. 1999))); Dey, 28 F.3d at 1460-61 ("A detailed refutation of events which underlie the employer's negative performance assessment demonstrates that the employer may not have honestly relied on the identified deficiencies in making its decision.").
a. Hiring of Full Time Employees
It is undisputed that Mr. Tarapore hired three new full time employees and one new part time employee in the summer of 2001. It is undisputed that shortly after taking over operations at McNamara, Mr. Farris instructed Mr. Tarapore to replace full-time employees with full-time hires and replace part-time employees with part-time hires. Additionally, the Defendants have produced an email, dated April 18, 2001, in which Mr. Farris tells Mr. Tarapore not to hire any more full time employees. But the April 18, 2001, email must be viewed in context.
On April 17, 2001, Mr. Farris wrote an email to Mr. Tarapore that asked, among other things, "I would like an update on your search for C.S. help, including the following: 1. how many and classification (f/t or p/t) for any positions that are open." (Pl.'s Ex. K.) In response, Mr. Tarapore on April 17, 2001, wrote, in part:
At present I only have 1 part time position open. Lynn and I have talked about this issue on quit a few occasions and we seem to agree that there are chances that I might loose somebody in Customer Service, and that we need to hire a full time employee. Although this is just a possibility I am preparing myself for it, by letting all the applicants know that this part time opportunity may change to a full time position, making it very clear that if they do not wish to, it will not be held against them in any way whatsoever.
(Pl.'s Ex. L.) Mr. Farris, on April 18, 2001, responded:
My biggest concern in C.S. is still your flexibility. This part time position WILL NOT turn into full time. IF you need to hire more I will only authorize part time hires. I have hinted and talked to you several times about this flexibility issue and you still gravitate to full time hires which gives you no room to flex at holidays. I know this is probably much easier to manage and schedule but in my mind it is not a prudent decision.
( Id.)
The Plaintiff contends that Mr. Farris authorized the hiring of the three full time hires in the summer of 2001. According to the Defendant, this is not a reasonable inference because the facts in the record show that Mr. Farris explicitly ordered Mr. Tarapore not to hire any more full time employees and Mr. Tarapore directly disobeyed the order. In order to adopt the Defendant's argument, the court would have to infer that Mr. Farris' instruction in the April 18, 2001 email also applied to the summer of 2001. However, in a motion for summary judgment, all reasonable inferences must be made in favor of the nonmovant.
The court finds that, based on the evidence on the record, it is reasonable to infer that Mr. Farris authorized the hiring of the three full time employees. On June 18, 2001, Mr. Farris sent an email to Mr. Tarapore stating as follows: "I know that we have new people in training but 3.6% Abandonments (56 calls) seems very high for a summer week!!!" (Pl.'s Ex. N.) This email demonstrates that Mr. Farris was aware of whom Mr. Tarapore had hired in the summer. If Mr. Farris was aware of the fact that Mr. Tarapore had hired new employees, it is probable that Mr. Farris was aware of whether the new employees were full or part time employees. Additionally, Mr. Farris testified that "on an almost daily basis," he and Mr. Tarapore would meet and discuss "[a]nything from staffing, performance, expectations, the weather" . . . "[o]r a specific order, a customer, technology, infrastructure, relocation which was pending, business expansion. Any topic which was related to" . . . "the everyday operation of the business." (Farris Dep. at 36:1-17.) With this much daily interaction, it seems likely that Mr. Farris would have had knowledge of any new hires that Mr. Tarapore had made. Moreover, from the record, it does not appear that Mr. Farris was displeased with whom Mr. Tarapore had hired. Instead, as the record now stands, the first time Mr. Farris expressed his displeasure with the summer 2001 full time hires was on October 3, 2001, at Mr. Tarapore's performance review.
b. ACD Data
The question of whether Mr. Tarapore was responsible for the loss of the year's worth of ACD statistics is clearly in dispute. Mr. Tarapore states that the maintenance of the ACD system, and keeping backup records, was not his responsibility; Mr. Farris says that it clearly was. Maintenance of the ACD system is not listed by Mr. Farris as one of Mr. Tarapore's responsibilities as a Customer Service Manager. Mr. Farris lists Mr. Tarapore's responsibilities as follows: "overseeing daily operations of the telephone center, supervising and scheduling those employees, running reports based on several reports which he would run off the RTI system, which included regular sales reports, period sales reports, holiday sales reports, productivity reports for customer service represents, which extrapolated information based on a template of all of his employees[,] . . . the hours they worked, the number of calls they received." (Farris Dep. at 40:19-25 to 41:1-22.) Otherwise, the evidence on the record does not conclusively determine this issue.
However, even if it is established that Mr. Tarapore was not responsible for the loss of data, that is not sufficient to demonstrate pretext. An employer's reasons for discharge may stand even if they are incorrect or unwise, as long as they are genuine. Schuster, 327 F.3d at 575 (citing Testerman, 98 F.3d at 304); see also Pugh, 259 F.3d at 629 (stating that the court is "not in a position to question the wisdom of a decision that was honestly made" (citations omitted)).
Mr. Farris stated that he discovered that the ACD system was self-purging in April 2001. McNamara now claims that Mr. Tarapore's failure to notice this problem and maintain backup copies of the data was a huge mistake. However, it is unclear to the court, if Mr. Farris truly believed this to be Mr. Tarapore's fault, why Mr. Farris did not place Mr. Tarapore on probation at the time this issue was discovered, but waited six months before taking any action. Cf. Ajayi, 336 F.3d at 534 (credibility of employer's explanation called into doubt when, although employer received complaints about plaintiff, only after employer received notice about EEOC charge did complaints justify the employer's response).
c. Morale Problems
Third, McNamara states that there were morale problems as a reason for discharging Mr. Tarapore:
A. But I think that the moral problems typically revolve around, or have revolved around, and continue to revolve around, accuracy, workload distribution, in other words, if I'm logged on the whole time and somebody else is not logged on, just the whole morale of "Is it a place where I want to come to work?" —
Q. Uh-huh.
A. — is what I mean.
Q. So, what was it that Mr. Tarapore was not doing to your satisfaction, with respect to employee morale?
A. I don't know if there was a specific action that he was doing or not doing. It was more about the employee unhappiness in the room, I guess, in that group of employees.
Q. Was that attributable to Mr. Tarapore?
A. Well, he is the manager of that group of people.
(Farris Dep. at 192:2-23.)
Mr. Farris is unable to coherently articulate what he means when he states that Mr. Tarapore was responsible for low morale in the call center. Consequently, the court is unwilling to give much weight to this explanation.
Moreover, Mr. Tarapore has presented evidence demonstrating both that he was working on improving employee morale and that he was not responsible for any problems with morale. The performance evaluations of Mr. Tarapore from the customer service representatives, dated October 9, 2001, is evidence that puts McNamara's claim of low morale in doubt. The evaluations can only be described as positive. None of the employees in the evaluations mentioned problems with accuracy of work or workload distribution. The evaluations tend to demonstrate that there was not low morale at the call center in October 2001, or if there was low morale, that Mr. Tarapore was not to blame for it.
Additionally, there is evidence that Mr. Tarapore was responsive to morale problems in the call center. In mid to late August 2001, Mr. Tarapore sent a memorandum to Mr. Farris, indicating that morale was high in his department following his termination of a particular employee. (Pl.'s Ex. V ¶ 1.) Mr. Farris testified that Mr. Tarapore's correction of this problem was, in Mr. Farris' eyes, an action in accordance with his expectations of a department manager. (Farris Dep. at 271:7-13.)
d. Zero Call Abandonment
It is undisputed that one of Mr. Farris' goals for the call center was a zero call abandonment rate and it is also undisputed that Mr. Tarapore never achieved a zero call abandonment rate. A zero abandonment rate was also the goal Mr. Tarapore adopted for himself and the call center employees. However, the evidence on the record demonstrates that Mr. Tarapore was able to lower the call abandonment rate and was committed to working toward reaching that goal. Mr. Tarapore was able to bring the call abandonment rate down by 3 percent for the 2001 Valentines Day season as compared to the prior year. Additionally, by January 9, 2002, Mr. Tarapore had begun creating the reports that Mr. Farris believed were important for achieving a goal of zero percent.
The Defendant argues that a zero abandonment rate has been attained. The fact that a zero abandonment rate was attained "several times" after Mr. Tarapore was terminated is not relevant.
Next, there is a dispute in the record as to when Mr. Farris requested that Mr. Tarapore perform the type of data overlay analysis mentioned in the October 3 performance review. Mr. Farris contends that he had been asking for the reports since the Fall of 2000. Mr. Tarapore contends that Mr. Farris never told him to do this specific type of analysis until the October 3, 2001, meeting. (Tarapore Dep. at 166:17-20.) Additionally, there is no mention of the specific data overlay analysis which Mr. Farris sought in any of the documents prior to October 2001. All questions of fact must be determined in favor of the nonmovant. Consequently, the court must assume that Mr. Tarapore was not instructed to do the data overlay until his October 3, 2001, performance review. Given this, the court must assume that Mr. Tarapore complied with this request and produced the specifically requested reports. McNamara seems to insinuate that because Lynn Gorrell actually produced the reports for Mr. Tarapore, instead of Mr. Tarapore creating them himself, that Mr. Tarapore should not receive credit for the production of the reports. However, there is no reason evident in the record why Mr. Tarapore could not delegate this responsibility to another. The important point is that the requested reports were produced.
e. Fulfilling Performance Plan Expectations
Finally, McNamara claims that Mr. Tarapore failed to try to resolve any of the specific performance problems within the 90-day probation period. The evidence on the record does not support this argument. The evidence demonstrates that Mr. Tarapore either was in the process of resolving some of the problems listed in his performance report or had completed the projects. First, by November 27, 2001, Mr. Tarapore had started creating a staff training manual. It even appears from a memorandum written by Mr. Farris to Mr. Tarapore that Mr. Farris reviewed an earlier draft of the manual. In the memo, Mr. Farris writes, in part:
Thanks for working on the initial training book. There are several things that are repeated 2-3 times, please eliminate duplication to simplify for trainees (I like the tab'd [sic] sections [and] suggest keeping those).
I have also included copies of some general information and other policy/procedure items not included. I think they'd be helpful.
(Pl.'s Ex. II.)
Second, on January 9, 2002, Mr. Tarapore produced the type of data overlay that Mr. Farris had requested within the 90 day period, thus demonstrating his effort to reduce the number of abandoned calls. ( See Pl.'s Ex. JJ.) Additionally, on the January 9, 2002, cover letter to the data overlay analysis, Mr. Tarapore noted: "PS: — (1) Training manual is in place; (2) Manual for examples of correct procedures is in place; (3) Add a rose program is working out also." ( Id.) Mr. Farris has agreed that all of these projects were executed in accordance with his expectations. The only project it appears Mr. Tarapore did not accomplish within the 90-day probation period was to sign up for a management class and submit a revised performance plan. With respect to the revised performance plan, Mr. Tarapore has submitted three different documents that could be viewed as performance plans or revised performance plans. First, on October 19, 2001, Mr. Tarapore submitted a performance plan (Pl.'s Ex. BB), which Mr. Farris had told Mr. Tarapore was insufficient. Second, on October 31, 2001, Mr. Tarapore attempted to respond to Mr. Farris response to his first performance plan. (Pl.'s Ex. DD.) Third, on November 19, 2001, after the November 12, 2001 meeting where Mr. Farris clarified his expectations to Mr. Tarapore, Mr. Tarapore sent an email memorandum to Mr. Farris that recapped the meeting and provided Mr. Tarapore's responses. (Pl.'s Ex. GG.) If the only thing Mr. Tarapore failed to accomplish after the November 12, 2001, meeting was signing up for the management class, a reasonable trier of fact could find that Mr. Tarapore had tried to solve his performance problems, thus rendering McNamara's explanation suspect.
f. Suspicious Timing
As discussed under the direct method, Mr. Tarapore has circumstantial evidence in the form of suspicious timing that tends to show that McNamara was more likely than not motivated by a discriminatory reason. Mr. Tarapore points out that none of McNamara's purported reasons for terminating him were every formally documented prior to September 11, 2001 or October 3, 2001. It is unclear from the record why Mr. Farris placed Mr. Tarapore on probation in October 2001, rather than June 2001. According to the Defendant, performance evaluations are given with pay roll changes. Mr. Tarapore's last payroll change and evaluation was conducted in June 2001. Most of the criticism of Mr. Tarapore's performance included in the October performance review could have been raised in June 2001. Additionally, from Mr. Tarapore's August 2001 memorandum to Mr. Farris, it appears that Mr. Tarapore was working on many of the issues pointed out in the October 2001 performance review.
The Defendant submits a document that appears to be an excerpt from McNamara's confidential files, entitled Organizational Chart Review. (Dep. Ex. 23.) The document is dated April 20, 2001. It states, in relevant part, "Even after repeated 'suggestions' to Adil Tarapore (Department Manager) over the last 24 months that he needs to analyze call volume and timing and create a more flexible staff to fit our customer's [sic] buying (calling) habits, no changes have been made." ( Id.) Mr. Farris testified the report was a confidential document he created "not for release to any employee." (Farris Dep. at 402:20; 404:5-7.) On April 20, 2001, Mr. Farris would have only been Mr. Tarapore's supervisor for 13 months. Additionally, according to Mr. Farris, he had been telling Mr. Tarapore since the fall of 2000 of the need for call volume and timing reports. These contradictions render the document unreliable, and consequently, the court will not consider Deposition Exhibit 23 for this motion for summary judgment.
The Seventh Circuit has held that "timing alone does not create a genuine issue as to pretext if the plaintiff is unable to prove, through other circumstantial evidence, that he was terminated for a reason other than that proffered by the employer." Pugh, 259 F.3d at 629 (citing Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1034 (7th Cir. 1999)). In the present case, the court finds that Mr. Tarapore has produced some evidence challenging the Defendant's reasons for placing him on probation and for Mr. Tarapore's eventual termination to place the Defendant's explanation into doubt. This combined with the suspicious timing of the adverse actions is sufficient for a reasonable jury to conclude that McNamara's legitimate explanation was merely a pretext for discrimination. The Defendant's Motion for Summary Judgment on the Plaintiff's claim of discrimination based on national origin is therefore DENIED.
V. Retaliation
Mr. Tarapore also alleges that he was terminated in retaliation for filing an EEOC charge against the Defendant. Again, Mr. Tarapore can prove that he was retaliated against by using either the direct method or indirect method. Sitar, 344 F.3d at 728. The parties assume that the arguments made in support of the discrimination claim apply equally to the retaliation claim, and consequently, have not fully briefed the issue. However, there are differences between the discrimination and retaliation claims, as addressed by the court in this section.A. Direct Method
Under the direct method, Mr. Tarapore would have to produce evidence demonstrating: "(1) a statutorily protected activity; (2) an adverse action taken by the employer; and (3) a causal connection between the two." Id. at 728 (citing Stone, 281 F.3d at 644). Mr. Tarapore engaged in a statutorily protected activity when he filed the EEOC charge in October 2001. Additionally, an adverse action was taken by McNamara — Mr. Tarapore was fired.
McNamara argues that there is no direct evidence of retaliation. The court disagrees. First, as in the discrimination claim, there is suspicious timing. It is undisputed that Mr. Farris had knowledge that Mr. Tarapore had filed an EEOC charge against McNamara alleging discrimination. Mr. Farris had knowledge of the EEOC charge prior to reviewing Mr. Tarapore's performance plan. (Farris Dep. at 327:19-21.) Although it cannot be argued that Mr. Tarapore was placed on probation because of the EEOC charge, it can be argued that Mr. Tarapore was terminated because of the EEOC charge. Like in the discrimination claim, however, Mr. Tarapore cannot rely on suspicious timing alone because too much time elapsed between when Mr. Farris learned of the EEOC charge and when Mr. Tarapore was terminated.
But, there is more circumstantial evidence under the direct method in support of retaliation than there was in support of discrimination. There is evidence that Mr. Farris was upset with Mr. Tarapore for filing the EEOC charge. Mr. Tarapore testified that on October 31, 2001: "Toomie Farris wanted to give me [the October 31 memo] and just walk [sic] out of there. He had nothing to do with about talking to me about anything at that point." (Tarapore Dep. at 338:16-20.) Additionally, although Mr. Farris and Mr. Tarapore met on November 12, 2001, to discuss Mr. Tarapore's performance plan, Mr. Farris brought up details of the EEOC complaint that were unrelated to Mr. Tarapore's job performance:
Further Issues
T.F. — Invited Adil to provide details of "Liscence [sic] Plate" incident listed on EEOC complaint. I can't do anything about things that I'm not aware of. It's Adil's responsibility to provide details: who, when, what was said. I will conduct investigation. Can do that today or any time.
A.T.: Firmly believe entire thing is based on discrimination.
T.F. — Not discriminating, this is based on performance issues. Tried to coach verbally for several months, still not getting results that [I] expect. [. . .] escalates to a formal performance plan.
(Pl.'s Ex. FF.) A reasonable trier of fact could find that Mr. Farris' evaluation of Mr. Tarapore's performance was affected by the fact that Mr. Tarapore had filed an EEOC complaint against him.
Even if the court found that Mr. Tarapore had not presented enough evidence to raise an inference of discrimination under the direct method, under the indirect method, Mr. Tarapore would succeed.
B. Indirect Method
A plaintiff alleging retaliation with only indirect evidence must produce evidence to demonstrate the following prima facie elements in order to survive summary judgment: (1) Mr. Tarapore participated in a statutorily protected activity; (2) performed his job according to McNamara's legitimate expectations; (3) Mr. Tarapore suffered an adverse action; and (4) he was treated less favorably than similarly situated employees who did not participate in the statutorily protected activity. Sitar, 344 F.3d at 728 (citing Stone, 281 F.3d at 644; Hilt-Dyson v. City of Chi., 282 F.3d 456, 465 (7th Cir.), cert. denied, 537 U.S. 820 (2002); Haywood, 323 F.3d at 531). If the burden is met, the burden then shifts to McNamara to produce a legitimate, non-invidious explanation. Id. If McNamara meets its burden, the burden shifts back to Mr. Tarapore, who must demonstrate that McNamara's explanation is pretextual. Id.
McNamara concedes that Mr. Tarapore is able to demonstrate the requirements of the prima facie case of retaliation. McNamara contends, as it argued for the discrimination claim, that Mr. Tarapore cannot demonstrate that the legitimate explanation McNamara provided was pretextual. McNamara further argues that because the reasons asserted by McNamara for Mr. Tarapore's termination are the same reasons presented during the October 3, 2001, performance review, which was held before Mr. Tarapore filed his EEOC charge, the termination could not have been in retaliation for filing the charge.
Mr. Tarapore was placed on probation before he filed the EEOC charge; thus, the court recognizes that Mr. Tarapore cannot claim that he was placed on probation in retaliation for filing the charge. However, it is not true that the reasons asserted by McNamara for Mr. Tarapore's termination are the same reasons presented during the October 3, 2001, performance review. One of McNamara's weakest explanations for Mr. Tarapore's discharge is the claim that Mr. Tarapore did not try to resolve any of the performance problems within the 90-day probation period. As discussed earlier, the evidence demonstrates that Mr. Tarapore did in fact accomplish many of the goals listed on the performance plan or was in the process of accomplishing them. Nevertheless, on January 28, 2002, McNamara made the decision to terminate Mr. Tarapore at the end of February. Even if Mr. Farris placed Mr. Tarapore on probation for non-invidious reasons, Mr. Farris may have refused to credit Mr. Tarapore for accomplishing goals on the performance plan because Mr. Tarapore filed an EEOC charge against McNamara. Cf. Ajayi, 336 F.3d at 535. Accordingly, the court finds that the Plaintiff has presented sufficient evidence demonstrating that Mr. Tarapore was terminated because of discrimination, retaliation, or both. The Defendant's Motion for Summary Judgment on the claim of retaliation is therefore DENIED.
VI. Hostile Environment
"'In order to survive summary judgment on a hostile work environment claim, a plaintiff must present evidence that would establish that the allegedly hostile conduct was so severe or pervasive as to create an abusive working environment in violation of Title VII.'" Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 551-52 (7th Cir. 2002) (quoting Russell v. Bd. of Trs., 243 F.3d 336, 342-43 (7th Cir. 2001)). "In determining whether the conduct is sufficiently severe or pervasive to be actionable, a court will look at all of the circumstances, including 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. at 552 (quoting Russell, 243 F.3d at 343). "[A] hostile work environment is one that is 'both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.'" Hilt-Dyson, 282 F.3d at 463 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) and citing Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000)).Mr. Tarapore has not come close to presenting sufficient evidence to permit his claim of hostile work environment to go to trial. Mr. Tarapore's hostile work environment claim is almost entirely based on one incident after September 11, 2001 when the design center manager, Gary Funk, shouted at Mr. Tarapore. Although Mr. Funk's behavior was unprofessional, the confrontation was not so severe that a trier of fact could find that Mr. Tarapore's work environment was hostile. The evidence does not suggest that Mr. Tarapore was physically threatened or humiliated, or that Mr. Funk's words were offensive. Moreover, it is only a single incident; a reasonable trier of fact could not find that the incident interfered with Mr. Tarapore's work performance.
Mr. Tarapore argues that this is not an isolated instance, but that "the confluence of facts is sufficient to demonstrate the existence of a hostile work environment. Not only had Mr. Tarapore received the unwarranted performance review from his supervisor, he had to face verbal abuse from a co-worker. When he complained about this treatment to Mr. Farris, Mr. Farris simply brushed the matter of as insignificant." (Pl.'s Mem. Opp'n Def.'s Mot. Summ. J. at 27.)
The record establishes that Mr. Farris spoke with Mr. Funk and told him to "tone it down." Even if Mr. Farris did not adequately address the incident, it is still only a single incident. Furthermore, the court is not persuaded by Mr. Tarapore's "confluence" argument. Mr. Farris was Mr. Tarapore's employer; accordingly, it was not improper for Mr. Farris to give Mr. Tarapore a performance review. Even a warranted performance review may likely feel intimidating to an employee. The court recognizes that if in fact Mr. Farris presented Mr. Tarapore with a performance review because of Mr. Tarapore's national origin, Mr. Tarapore would have experienced some hostility above and beyond just the hostility experienced from a performance review. However, that conduct — the improper giving of one performance review — is not conduct that is so severe and pervasive that a reasonable trier of fact could find that Mr. Tarapore's work environment was objectively hostile. The Defendant's Motion for Summary Judgment on the claim of Hostile Work Environment will be GRANTED.
VII. Intentional Infliction of Emotional Distress
Indiana has adopted the approach of the Second Restatement of Torts for deciding claims of intentional infliction of emotional distress. Holbrook v. Lobdell-Emery Mfg. Co., 219 F.3d 598, 600-01 (7th Cir. 2000). Under Indiana law, "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991) (adopting Restatement (Second) of Torts § 46 (1965)). A plaintiff must show that the defendant "(1) engages in extreme and outrageous conduct that (2) intentionally or recklessly (3) causes (4) severe emotional distress to another." Inlow v. Wilkerson, 774 N.E.2d 51, 55 (Ind.Ct.App. 2002) (citing Branham v. Celadon Trucking Servs., 744 N.E.2d 514, 523 (Ind.Ct.App. 2001)). "It is the intent to harm one emotionally that forms the basis for the tort." Munsell v. Hambright, 776 N.E.2d 1272, 1280 (Ind.Ct.App. 2002) (citations omitted). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Inlow, 774 N.E.2d at 55 (internal quotations omitted). "The requirements to prove this tort are 'rigorous.'" Creel v. I.C.E. Assocs., 771 N.E.2d 1276, 1282 (Ind.Ct.App. 2002) (citations omitted). Moreover, the Seventh Circuit has noted that the "Indiana courts have been reluctant to award damages for intentional infliction of emotional distress in employment cases." McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1167 (7th Cir. 1998).The parties have not fully briefed this claim. The Defendant only contends that because the Plaintiff must lose on the other claims, the court loses supplemental jurisdiction over the claim of intentional infliction of emotional distress. Because the court has found sufficient evidence on the claims of discrimination and retaliation, the court retains supplemental jurisdiction over this state law issue.
At least one Indiana court has recognized the claim of intentional infliction of emotional distress in the employment context. In Bradley v. Hall, 720 N.E.2d 747 (Ind.Ct.App. 1999), an employee brought a claim against her supervisor for intentional infliction of emotional distress. During the twenty years the defendant was the plaintiff's supervisor, she "harassed her, shouted at her, and criticized her in front of other employees." Id. at 749. The defendant blamed the plaintiff for an unfavorable performance review after the plaintiff complained to the vice president and reprimanded the plaintiff about her work. Id. "On several occasions Hall inquired about Bradley's menopause and once she asked if Bradley's husband was sexually impotent due to his diabetes." Id. "Hall also told Bradley that her supervisory position might be eliminated, and she encouraged Bradley to apply for other positions within the company." Id. The Indiana Court of Appeals held that whether the defendant's actions were extreme and outrageous was an issue for the jury because reasonable people could differ on the question. Id. at 753. But in Bradley, the plaintiff brought a claim against her supervisor, not the company for which she worked. In the present case, Mr. Tarapore has not sued Mr. Farris, but has brought suit against McNamara.
In order to bring this action against McNamara, Mr. Tarapore must demonstrate that McNamara itself intended the injury because the Indiana courts have rejected a respondeat superior analysis for the tort of intentional infliction of emotional distress. See Holbrook, 219 F.3d at 601 (citing Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271, 1275 (Ind. 1994)). "[A]n intentional tort committed by a supervisor, manager or foreman could subject that individual to tort liability but would not necessarily expose the employer to liability." Id. (citing Baker, 637 N.E.2d at 1275.) "In order to impute tortious intent to an employer that is a legal entity or an artificial person, the employee must show either that '(1) the corporation is the tortfeasor's alter ego, or (2) the corporation has substituted its will for that of the individual who committed the tortious acts.'" Id. (quoting Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1287 (Ind. 1994)). "[T]o prevail under the alter ego theory, the employee must show that both ownership and control of the corporation are in the tortfeasor's hands." Id. "To succeed under the other theory, the employee must show that the individual who committed the tort was acting pursuant to a policy or decision made through the corporation's regular decision-making channels by those with authority to do so." Id. "The employee's injury must be shown to be the intended product of the policy or decision at issue if the plaintiff is to prevail." Id.
First, it is clear that Mr. Tarapore cannot bring this claim against McNamara for the incident with Mr. Funk because Mr. Funk does not have control over the corporation and Mr. Funk was not acting pursuant to a policy decision made by the corporation.
With respect to Mr. Farris' actions, Mr. Tarapore cannot win under the alter ego theory. Although Mr. Farris is President and CEO of McNamara, LLC., there is no evidence of ownership by Mr. Farris. Instead, it is Marsh that owns McNamara. Mr. Tarapore has presented evidence demonstrating that Mr. Farris acted pursuant to a policy made through McNamara's regular decision-making channels and that Mr. Farris, as CEO, had the authority to act in such manner. However, the Plaintiff has presented no evidence, such as medical documentation or testimony, that Mr. Tarapore has in fact experienced emotional distress, as required under Indiana's test. See Bennington v. Caterpillar, Inc., 275 F.3d 654, 661 (7th Cir. 2001).
Even if there were evidence of injury, and even if Mr. Tarapore could demonstrate that his injury was the intended product of the policy, the court finds that the alleged acts are not sufficiently extreme or outrageous as to fall under the Indiana tort of intentional infliction of emotional distress.
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"Creel, 771 N.E.2d at 1282 (quoting Restatement (Second) of Torts § 46, cmt. d).
Placing an employee on probation and terminating the employee are not acts that would make an average member of the community exclaim "Outrageous!" See Holbrook, 219 F.3d at 602 (holding that "[t]he refusal of overtime and the denial of a position change" did not meet the standard); see also Imhoff v. Kmart Stores, 149 F. Supp. 2d 559, 572-73 (N.D. Ind. 2001). The Defendant's Motion for Summary Judgment on the claim of intentional infliction of emotional distress will be GRANTED.
VIII. Conclusion
For the foregoing reasons, the Defendant's Motion for Summary Judgment is DENIED on the claim of national origin and religion discrimination; DENIED on the claim of retaliation; will be GRANTED on the claim of hostile work environment; and will be GRANTED on the claim of intentional infliction of emotional distress. Because of the pendency of some claims for trial, a final judgment on the hostile work environment and intentional infliction of emotional distress claims will not be entered until a final judgment can be entered on the remaining claims, too.ALL OF WHICH IS ORDERED.