Smizer v. Community Mennonite Early Learning Center

Filing 76

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/19/2013Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILILNOIS
EASTERN DIVISION
LAWRENCE SMIZER,
Plaintiff,
v.
COMMUNITY MENNONITE EARLY
LEARNING CENTER,
Defendant.

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Case No. 10 C 4304
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Lawrence Smizer (“Plaintiff”), a former preschool teacher at Defendant
Community Mennonite Early Learning Center (“CMELC”), alleges he was terminated from his
position due to gender discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C.
§ 1981. After the conclusion of discovery, CMELC moved for summary judgment on Plaintiff’s
Title VII claim. 1 As set forth below, CMELC’s motion is granted.
FACTS
The following facts are undisputed. 2 Defendant CMELC is a non-profit educational
institution located in Markham, Illinois, which provides preschool educational opportunities for

1

Plaintiff’s complaint also purports to state a claim of “Defamation” (presumably under Illinois state
law). CMELC’s motion for summary judgment does not address it. Therefore, the Court construes
CMELC’s motion as only seeking summary judgment as to Plaintiff’s Title VII claim.
2

Plaintiff is proceeding in this matter pro se. The Court has special protections in place for pro se
plaintiffs defending their claims against summary judgment. See Local Rule 56.2. For example,
defendants moving for summary judgment against a pro se plaintiff are required to “serve and file as a
separate document, together with the papers in support of the motion, a ‘Notice to Pro Se Litigant
Opposing Motion for Summary Judgment. . . .’” Id. CMELC initially failed to comply with Local Rule
56.2, and the Court authorized it to remedy this defect by (a) granting Plaintiff additional time to file an
amended opposition to the motion for summary judgment and (b) requiring CMELC to provide the
requisite Notice as an exhibit to its reply brief. (Doc. 56.) CMELC satisfied the Order (Doc. 62) and thus
is in compliance with Local Rule 56.2 for the purposes of this motion.

young children. (Def.’s Local Rule 56.1(a)(3) Stmt. (“Def.’s LR 56.1(a)(3)”) ¶ 5.) Plaintiff was
employed at CMELC as a teacher’s assistant from 1993 until April 2010. (Id. ¶ 6.) Plaintiff’s
mother, Jackie Smizer, is the executive director at CMELC and has held that position since 1999.
(Id. ¶ 9.) Plaintiff’s grandmother, Rosemary Wooley, volunteers at CMELC. (Id. ¶ 10.)
While Plaintiff was still employed at CMELC, Plaintiff and his mother and grandmother
evidently had a difference of opinion with respect to attempts by Plaintiff’s sister to regain
custody of her teenaged son. (Id. ¶¶ 11-12. 3) In April 2010, Jackie Smizer received an email
from that teenaged grandson forwarding the text of a Facebook post from an individual identified
as “Lawrence Dontyoujudgeme Smizer.” (Id. ¶ 12.) The text of the post read as follows:
To all my family that fought my sister tooth and nail over some
BULLSHIT (And you know who you are) FUCK YOU
BITCHES!!!!
HE IS GOING HOME WHERE HE
BELONGS!!!!!
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHAHHAH
AHHAAH
(Def.’s Ex. C, Attach.) Jackie Smizer believed that the post was directed at her and Wooley. (Id.
¶ 14.) At least two other CMELC employees, who were “Facebook friends” with Plaintiff,
reported viewing the posting. (Id. ¶¶ 18-19.) Jackie Smizer informed CMELC Board Chairman
Michael Devine of the post, who then reviewed it himself. (Id. ¶ 15.) Devine then met with
Plaintiff and terminated his employment, referencing the offensive posting as a reason for the
dismissal. (Id. ¶¶ 20-21. 4)

3

While Smizer disputes the propositions in ¶¶ 11-12, 14, and 18-19, he fails to “cite specific evidentiary
materials justifying the denial,” as required by Local Rule 56.1. Malec v. Sanford, 191 F.R.D. 581, 584
(N.D. Ill. 2000). Therefore, these paragraphs are considered to be undisputed.
4

Smizer disputes these propositions, but the evidentiary materials he relies upon fail to support his
denials. For example, Smizer disputes that Devine referred to the Facebook posting at the time of the
termination and cites to certain pages from the transcript of a hearing before a referee from the Illinois
Department of Employment Security Appeals Division. However, at that hearing, Devine did not testify
that he failed to reference the post, only that he did not address certain attendance issues with Smizer at

2

After Plaintiff’s termination, CMELC submitted a memorandum to its unemployment
claims representative outlining the reasons for dismissal. (Pl.’s Local Rule 56.1(b)(3) Stmt.
(“Pl.’s LR 56.1(b)(3)”), Ex. A thereto.) The first reason given was the Facebook posting
(erroneously referred to as a “MYSPACE entry”) and other conduct related to the family dispute.
(Id.)

The memorandum also stated that CMELC believed that (a) Plaintiff was viewing

pornography on CMELC computers; (b) Plaintiff kept pornographic magazines in a closet in his
classroom; (c) Plaintiff failed to keep his classroom in a clean and orderly condition; and (d)
there were discrepancies in his time sheets. (Id.)
DISCUSSION
Summary judgment is proper where “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving
party has the initial burden of establishing that there is no genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party has sufficiently demonstrated
the absence of a genuine issue of material fact, the nonmoving party must then set forth specific
facts demonstrating that there are disputed material facts that must be decided at trial. Id. at 32122.
Here, Plaintiff alleges that CMELC engaged in reverse gender discrimination in violation
of Title VII of the Civil Rights Act.

Under Title VII, it is unlawful for employers “to

discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). A
Title VII gender discrimination claim can survive summary judgment if the plaintiff presents
either (1) direct or circumstantial evidence of discrimination (the “direct method”) or (2) indirect

the time of his termination. (See Pl.’s Resp. Def.’s LR 56.1(a)(3), Ex. H, at 12, lines 7-9.) These factual
statements are thus considered to be undisputed.

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evidence that establishes a prima facie case and satisfies the burden-shifting approach set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-02 (1973) (the “indirect method”). See
Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 591-92 (7th Cir. 2008). Plaintiff avers that he is
proceeding under the direct method (Resp. at 14), but his response brief can be fairly read to
argue his case under the indirect method as well. Therefore, the Court addresses Plaintiff’s Title
VII claim under both approaches.
A.

Direct Method

Using the direct method, Plaintiff must establish “either an acknowledgment of
discriminatory intent or circumstantial evidence that provides the basis for an inference of
intentional discrimination.” Kampmier v. Emeritus Corp., 472 F.3d 930, 939 (7th Cir. 2007).
“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.” Rhodes v.
Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004). Essentially, direct evidence “requires an
admission by the decision-maker that his actions were based upon the prohibited animus.” Id.
(internal citations omitted).
In the absence of direct evidence, circumstantial evidence is deemed sufficient to satisfy
the direct method of proof where it forms a “convincing mosaic” that “allows a jury to infer
intentional discrimination by the decisionmaker,” and “point[s] directly to a discriminatory
reason for the employer’s action.” Id. (internal citations omitted); cf. Coleman v. Donahoe, 667
F.3d 835, 863 (7th Cir. 2012) (Wood, J. concurring) (noting that courts should collapse direct
and indirect approaches in Title VII cases). This hurdle “can be a high threshold, particularly in
a reverse discrimination case.” Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 676-77 (7th Cir.
2012).

4

As Judge Posner explains, there are three ways in which a plaintiff may provide
circumstantial evidence of intentional discrimination sufficient to prevail under the direct
method. Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). The first is by
providing evidence of suspicious timing, statements, and/or behavior toward other (male)
employees “from which an inference of discriminatory intent might be drawn.” Id. The second
is by providing evidence that female similarly-situated employees “received systematically better
treatment.” Id. The third requires a plaintiff to present evidence that he was replaced by another
employee who is not part of the same protected class under a mere pretext.
Plaintiff makes two arguments for prevailing under the direct method. 5 First, Plaintiff
states that there is sufficient circumstantial evidence of discrimination because at the time of his
termination, there were only two full-time male employees, and only one (Plaintiff) was a
classroom staff member. (Resp. at 2.) Second, Plaintiff asserts that there are four similarlysituated female employees who were treated materially better than he. (Resp. at 9.) CMELC
counters that Plaintiff has not presented any direct evidence of discrimination, and the Court
agrees. Plaintiff’s arguments are addressed below.
1.

Lack of Male Employees at CMELC

First, Plaintiff argues that there is sufficient evidence of discrimination because at the
time of his termination, there were only two full-time male employees, and only one (Plaintiff)
was a classroom staff member. (Resp. at 2.) But as CMELC points out, Plaintiff cannot identify
any comments made by CMELC directed at either his gender or men generally when he was
fired. Rhodes, 359 F.3d at 504. Plaintiff also presents no evidence that other males had applied
for classroom staff positions at CMELC but were turned down. Nor does he present any
5

Plaintiff provides no argument with respect to the third approach outlined under Troupe. (Resp. at 14.)

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evidence to support his conclusory assertions that the “female dominated field” he worked in was
“female dominated” due to discriminatory animus. Plaintiff’s first argument thus fails to support
his claim under the direct method.
2.

Similarly-Situated Employees

Plaintiff next attempts to identify other similarly-situated female employees who received
better treatment than he. See Troupe, 20 F.3d at 736. To prevail in this manner, Plaintiff must
demonstrate that “the two employees dealt with the same supervisor, were subject to the same
standards, and had engaged in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the employer’s treatment of them.” Weber
v. Univs. Research Ass’n, Inc., 621 F.3d 589, 594 (7th Cir. 2010) (internal citations omitted). In
order to satisfy the “same supervisor” requirement, plaintiffs must show, at a minimum, that a
comparator was treated more favorably by the same decision-maker who took an adverse
employment action against the plaintiff. Ellis v. United Parcel Service, 523 F.3d 823, 826 (7th
Cir. 2008). For the “same standards of conduct” element, courts examine “whether the employer
subjected them to different employment policies.” Coleman, 667 F.3d at 848-49. Finally, a
plaintiff must show that the alleged comparator “engaged in comparable rule or policy
violations” without differentiating or mitigating circumstances to distinguish their conduct or the
employer’s treatment of them. Id. (internal citations omitted); Weber, 621 F.3d at 594. The
Seventh Circuit has explained that “comparable seriousness” exists where the proposed
comparator “engaged in similar – not identical – conduct to qualify as similarly situated.”
Peirick v. Ind. Univ.-Purdue Univ. Indianapolis, 510 F.3d 681, 689 (7th Cir. 2007).
Plaintiff contends that there were three full-time female employees and one female
support staff member who were similarly-situated and treated more favorably than he. (Resp. at

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9.) However, the evidence that Plaintiff offers simply does not support this contention. Plaintiff
identifies four CMELC employees, Melanie Duckworth, LaQuisha Bijou, Erin Devers and Tara
Robinson, as potential comparators. (Resp. at 9.) Plaintiff claims that he used the following
criteria to identify these four women:
•

Their level of education as compared to Plaintiff;

•

Their level of experience in the field of child care, particularly at CMELC;

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Their similar age;

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Their race;

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Their family affiliation with a member of CMELC senior staff;

•

Their positions at CMELC; and

•

Their active Facebook accounts.

(Id.)
According to Plaintiff, Melanie Duckworth and LaQuisha Bijou satisfy seven out of the
seven criteria while Erin Devers and Tara Robinson satisfy six of the seven. (Id.) However,
Plaintiff wholly fails to put forth any evidence as to how these criteria apply to these women.
For example, nowhere in his response brief or in his Rule 56.1(b)(3) statement of additional
material facts does Plaintiff describe their respective levels of education; their job experience;
their family affiliation with CMELC (if any); their positions, titles and job responsibilities at
CMELC; or their job performance history while employed at CMELC. 6 Instead, Plaintiff’s sole

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Plaintiff incorrectly titles his Local Rule 56.1(b)(3) Statement as filed pursuant to Local Rule 56.1(a)(3),
but the Court will construe it as filed under the appropriate section of the Local Rule. CMELC also
asserts that Plaintiff exceeds the limitation of 40 additional material facts allowed pursuant to Local Rule
56.1(b)(3)(C), and that because he did not seek leave of Court to do so, the additional facts should be
stricken. (Reply at 6.) Although the Court normally would agree, it will allow Plaintiff to exceed the
limitation given his pro se status.

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basis of comparison appears to be that these four women purportedly violated certain CMELC
rules and were not terminated, while he was. We will address these contentions in turn.
a.

Melanie Duckworth and LaQuisha Bijou

In his statement of additional facts, Plaintiff alleges that he was “terminated for
discrepancies in his time record.” (Pl.’s 56.1(b)(3)(C) ¶ 75.) He also states that time records for
Melanie Duckworth and LaQuisha Bijou “show inconsistencies similar to the plaintiff’s time
records.” (Id. ¶¶ 78-79.) In support thereof, he provides copies of time sheet records for
Duckworth and Bijou. 7 The foregoing is the sum total of information provided in the materials
submitted by Plaintiff regarding this issue. However, in order for Plaintiff to establish that
Duckworth or Bijou engaged in conduct of comparable seriousness sufficient to establish them
as similarly-situated employees, he must show that they “engaged in comparable rule or policy
violations” without differentiating or mitigating circumstances as would distinguish their conduct
or the employer’s treatment of them. Coleman, 667 F.3d at 850 (internal citations omitted);
Weber, 621 F.3d at 594. The raw data from the time records, without more, is insufficient for
Plaintiff to meet this burden. Plaintiff does not present any evidence as to the origin of the data,
or as to whether CMELC was even aware of the “discrepancies.” 8 Accordingly, Plaintiff has not
established Duckworth and Bijou as similarly-situated comparators.

7

Based upon this evidence, Plaintiff concludes that Duckworth and Bijou were “similarly situated to the
plaintiff in all material respects,” and he cites to unspecified paragraphs in his affidavit as support for
these propositions. (Id. ¶¶ 85, 86.) However, a review of Plaintiff’s affidavit does not reveal any support
for these conclusory statements.
8

On reply, CMELC supplies an affidavit from Jackie Smizer that explains that the time sheet
“discrepancies” for Plaintiff were due to his failure to clock in and out as required. (2d J. Smizer Aff. ¶
10.) By contrast, she states, no discrepancies existed as to Bijou’s time records; any gaps in her time
sheets are simply due to the fact that she only worked part time during part of her tenure at CMELC. (Id.
¶ 11.) As for Duckworth, Jackie Smizer avers that there were no discrepancies in her time records and
she has never been subject to corrective action. (Id. ¶¶ 12, 15.)

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b.

Tara Robinson

As to the third potential comparator, Tara Robinson, Plaintiff testified that she had been
arrested for marijuana possession (off of CMELC property) but was not terminated from her
employment at CMELC. (Smizer Dep. 61.) Plaintiff testified that “eventually” the CMELC
administration knew she had been arrested, but Plaintiff did not know whether she had been
convicted. (Id. 61-62.)
To blunt this testimony, CMELC included a statement in its Local Rule 56.1(a)(3) filing
that “CMELC management had no knowledge of an arrest of Tara Robinson in 1999.” (Def.’s
LR 56.1(a)(3) ¶ 50.) Plaintiff disputes this assertion in his Local Rule 56.1(b)(3) filing, stating
that, on the contrary, Robinson’s arrest “prompted CMELC to begin regular drug testing for its
employees.” (Pl.’s LR 56.1(b)(3) ¶ 50.) In support, Plaintiff cites to his own first affidavit,
where he states his belief that: as a general matter, CMELC is notified if a staff member is
arrested; Robinson’s arrest was a matter of public record; and it prompted CMELC to begin a
drug testing program for all employees, which was not in place prior to 1999. (Ex. T, 1st Smizer
Aff. ¶¶ 58-61.)

Plaintiff’s affidavit, however, cites to no evidence to support these bald

contentions, nor does he explain the basis for his knowledge of the facts asserted therein. For her
part, Jackie Smizer states that she had no knowledge of Robinson’s arrest. (1st J. Smizer Aff. ¶
31.) She also states that CMELC did initiate random drug testing, but it did so after firing
another part time employee, not Robinson, for “admitted drug use” while “on the job.” (2d J.
Smizer Aff. ¶ 6.)
Again, Plaintiff must establish that Robinson “engaged in comparable rule or policy
violations” and that there were no facts to distinguish her conduct from his. Coleman., 667 F.3d
at 850 (internal citations omitted); Weber, 621 F.3d at 594. The Court finds that several factors

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distinguish Robinson from Plaintiff. First, there is no evidence in the record that CMELC was
even aware of Robinson’s arrest, that it actually occurred, or that CMELC failed to terminate her
despite this knowledge. But even if the foregoing were true, Robinson’s purportedly improper
conduct neither was directed at nor involved any CMELC coworkers in contrast to Plaintiff’s
conduct. Nor is there any evidence that CMELC believed that Robinson had committed other
significant infractions like Plaintiff. Thus, Robinson also is not an appropriate comparator.
c.

Erin Devers

As for the final proposed comparator, Erin Devers, Plaintiff has not tendered any
evidence at all establishing her as a comparator. There is no mention of Erin Devers in either of
Plaintiff’s affidavits, in his Local Rule 56.1(b)(3) Statement or his response to CMELC’s Local
Rule 56.1(a)(3) Statement. Plaintiff simply fails to offer any evidence that would qualify Devers
as a similarly-situated employee.
In sum, although Plaintiff argues that these four women were similarly situated to him,
Plaintiff fails to present any evidence as to their job titles and responsibilities or their
performance histories at CMELC. Plaintiff likewise fails to establish that these four women
committed any infractions of which CMELC was aware and, if so, whether they were
reprimanded or punished as a result. Because Plaintiff has failed to identify any employees who
were “directly comparable in all material respects,” Sartor v. Spherion Corp., 388 F.3d 275, 279
(7th Cir. 2004), he has not presented sufficient circumstantial evidence to prevail under the direct
method.
2.

Pretext

Although the lack of a valid comparator wholly dooms Plaintiff’s claim under the direct
method, Plaintiff’s argument with respect to pretext also fails.

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Plaintiff, citing Chaney v.

Plainfield Healthcare Center, 612 F.3d 908 (7th Cir. 2010), contends that CMELC advanced
changing justifications for his termination, which provides evidence of pretext sufficient to
overcome summary judgment under the direct method. It is true that CMELC later suggested
that there were other grounds for Plaintiff’s termination in addition to the Facebook posting.
However, Plaintiff’s argument misreads Chaney. There, the Seventh Circuit explained that
“evidence of pretext, by itself, may not always be enough to defeat summary judgment under the
direct method.” 612 F.3d at 915. However, there, given the evidence of pretext coupled with
“other circumstantial evidence of more favorable treatment of a similarly situated co-worker
suggesting that race figured into [the defendant’s] decision to fire [plaintiff],” the Court found a
“triable issue” of material fact sufficient to defeat summary judgment. Id. at 915-16 (finding that
similarly-situated co-worker had received more favorable treatment). Thus, Chaney, as well as
the case it relies upon, Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 723-24 (7th Cir. 2005),
hold that it is not the existence of shifting justifications alone, but evidence of shifting
justifications combined with other circumstantial evidence of discrimination that may defeat
summary judgment. Here, additional circumstantial evidence is lacking.
Moreover, in order for the explanations for termination to be characterized as “shifting,”
they must be either contradictory or inconsistent with the original reasons given, rather than
merely being additional reasons for termination. As Judge Korcoras explained in Jefchak v.
Schweppe & Sons, Inc., No. 06 C 5681, 2007 U.S. Dist. LEXIS 71918, at *23 (N.D. Ill. Sept. 27,
2007), citing Schuster v. Lucent Techs., Inc., 327 F.3d 569, 579 (7th Cir. 2003), an additional
reason for termination raised after an EEOC proceeding, “if not inconsistent with prior claims, is
considered an additional explanation, rather than a ‘shifting or inconsistent’ explanation, when
offered at the time of the lawsuit.” Similarly, here, CMELC may have subsequently bolstered its

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record for firing Plaintiff with more detail about prior infractions, but it has never backed away
from its position that the Facebook posting was the primary basis for termination.

These

additional reasons may demonstrate “an aggressive defense of its actions, perhaps leading it to
occasionally over-defend itself,” see Schuster, 327 F.3d at 579, but they do not create “an
inference of mendacity.” Id. at 577.
Finally, Plaintiff disputes that: (a) he posted the offending message to Facebook; (b) he
ever viewed pornography on CMELC computers; (c) he failed to properly maintain his
classroom; and/or (d) he misreported his time entries. However, so long as CMELC honestly
believed the reasons it gave for the termination, Plaintiff cannot establish pretext, even if those
reasons were wrong, cruel, or even irrational. See Forrester v. Rauland-Borg Corp., 453 F.3d
416, 418 (7th Cir. 2006) (“the question is never whether the employer was mistaken, cruel,
unethical, out of his head, or downright irrational in taking the action for the stated reason, but
simply whether the stated reason was his reason: not a good reason, but the true reason.”)
(emphasis in original); McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir.
2006) (noting that in an employment discrimination cases “we are decidedly not interested in the
truth of the allegations against plaintiff. We are interested in what “motivated the employer.”)
(internal citations omitted). Here, Jackie Smizer was forwarded a copy of the posting from
Plaintiff’s Facebook account, and numerous CMELC staffers viewed the email due to their status
as “Facebook friends” with Plaintiff. (Def.’s LR 56.1(a)(3) ¶¶ 12, 14, 18-19.) It is undisputed
that CMELC viewed the posting as being (a) authored by Plaintiff, (b) insubordinate to Jackie
Smizer, and (c) a valid basis for its termination of Plaintiff. Plaintiff’s contention of pretext
therefore fails.

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Given the foregoing, this Court finds that Plaintiff cannot survive summary judgment
using the direct method of proof.
B.

Indirect Method

Plaintiff still may survive summary judgment if he can establish a genuine issue of
material fact under the indirect method of proof. In order to prevail using the indirect method,
Plaintiff must use the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 801-02 (1973). See McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009).
Under McDonnell Douglas, Plaintiff must establish a prima facie case of discriminatory
termination through a showing that: (1) he is a member of a protected class; (2) he was
performing well enough to meet his employer’s legitimate expectations; (3) he suffered an
adverse employment action; and (4) similarly situated employees outside his protected class were
treated more favorably. Id. All four prongs must be satisfied for a plaintiff to prevail. Id.
Additionally, where a male plaintiff pursues reverse discrimination claims, in lieu of the
first prong, he must show that there are “background circumstances” or “something fishy” about
the relevant facts suggesting that anti-majority discrimination has occurred. See Mills v. Health
Care Serv. Corp., 171 F.3d 450, 455-57 (7th Cir. 1999).
Once a plaintiff makes this prima facie showing by meeting all four prongs of the test,
the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the
termination. See id. at 454. If a defendant articulates such a reason, the burden of production
shifts back to the plaintiff to show that the stated reason is pretextual. See id. In this context, a
pretext is defined as “a lie, specifically a phony reason for some action.” Jackson v. E.J. Brach
Corp., 176 F.3d 971, 983 (7th Cir. 1999).

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Plaintiff is unable to establish a prima facie case of reverse discrimination because he is
unable to satisfy the fourth prong of the test: that similarly-situated female employees who were
treated materially differently than him. There is no evidence in the record to establish that any of
the four women identified by Plaintiff —Bijou, Duckworth, Robinson, and Devers—were
employed at the same level as Plaintiff, committed or were accused of committing the same or
similar infractions as he was, and were treated materially differently as a result. See discussion
supra. Because the fourth prong of the indirect method is not satisfied, Plaintiff’s claim must
fail. 9
The Court therefore holds that summary judgment is appropriate as to Plaintiff’s Title VII
claim and will enter judgment for Defendant as to this claim.
CONCLUSION
As set forth above, the Court grants Defendant’s motion for summary judgment [46] on
Plaintiff’s Title VII claim.

As no viable federal claims remain, the Court relinquishes

jurisdiction over Plaintiff’s supplemental state claim for defamation. Wright v. Associated Ins.
Cos., 29 F.3d 1244, 1251 (7th Cir. 1994) (“The general rule is that once all federal claims are
dismissed before trial, the district court should relinquish jurisdiction over pendent state-law
claims rather than resolve them on the merits.”). That claim is dismissed without prejudice.
Civil case terminated.

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Even if Plaintiff were able to satisfy the four prongs of the indirect test, he still would not be able to
demonstrate pretext as also required under the indirect method, because he cannot establish that
CMELC’s stated reason for the termination was pretext or that its justifications were shifting. See
discussion supra.

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SO ORDERED

ENTER:

3/19/13

______________________________________
JOHN Z. LEE
U.S. District Judge

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