Sims v. Connolly et al

Filing 74

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 3/11/2014: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RODERICK SIMS,

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Plaintiff,
v.
A-ALERT EXTERMINATING
SERVICES, INC., et al.,
Defendants.

No. 13 C 2254

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ motion for summary judgment.
For the reasons stated below, the motion for summary judgment is granted.

BACKGROUND
Plaintiff Roderick Sims (Sims) alleges that in August 2012, he applied for a
position with Defendant A-Alert Exterminating Services, Inc. (AAE), which is a pest
extermination company. Sims contends that in August 2012, he received a call from
AAE asking him to come in and interview for a position. Sims claims that on August
30, 2012, he went to AAE for an interview where he was interviewed by Defendant
Kevin Connelly (Connelly), who is allegedly part of management at AAE. The next
day Sims was allegedly extended a job offer. Sims contends, however, that upon
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realizing Sims’ age and race at his interview, Connelly decided to pay Sims a salary
lower than he had previously promised. Sims also contends that in the afternoon on
September 4, 2012, he was listening to Connelly “expound upon the history of
extermination while sitting at the head of the table,” and that “[w]ithout any warning
or explanation, [Connelly] reached and grabbed [Sims’] right arm and violently
pulled [Sims] across the table.” (Compl. Par. 21-22). Sims contends that he was
“shocked and scared at [that] point,” but was “able to compose[] [himself] and
smile[]. . . .” (Compl. Par. 22-23). Sims also contends that after his interview on
August 30, 2012, Connelly began making statements to Sims indicating that Sims
would be earning less than allegedly promised to Sims before his interview. After
working at AAE for approximately a week, AAE allegedly terminated Sims’
employment. Sims includes in his complaint a claim alleging race discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e
et seq. (Count I), a claim alleging race discrimination in violation of 42 U.S.C. §
1981 (Count II), breach of contract claims (Count III), a claim alleging age
discrimination in violation of the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 621 et seq. (Count IV), assault and battery claims (Count V), and
intentional infliction of emotional distress (IIED) claims (Count VI). Defendants
moved to dismiss the claims in Counts III, V, and VI, and on November 13, 2013,
the court granted the motion to dismiss. Defendants now move for summary
judgment on the remaining claims in Counts I, II, and IV.

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LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A
“genuine issue” of material fact in the context of a motion for summary judgment is
not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue
of material fact exists when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In
ruling on a motion for summary judgment, the court must consider the record as a
whole, in the light most favorable to the non-moving party, and draw all reasonable
inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v.
Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

I. Failure to Respond to Defendants’ Statement of Material Facts
On August 8, 2013, the court stated that dispositive motions were to be filed
by December 9, 2013, and that responses to dispositive motions were to be filed by
January 10, 2014. On December 9, 2014, Defendants filed the instant summary
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judgment motion, a statement of material facts, and a notice to a pro se litigant
consistent with Local Rule 56.2. On November 13, 2013, the court granted Sims’
request for additional time to respond to Defendants’ motion for summary judgment
and gave Sims until January 21, 2014, to respond to Defendants’ motion. The
deadline for responding to Defendants’ motion has passed, and Sims has filed no
opposition to Defendants’ motion for summary judgment or to Defendants’ statement
of material facts even after the court gave Sims an extension. Pursuant to Local Rule
56.1, all facts contained in Defendants’ statement of material facts are deemed to be
undisputed. LR 56.1; see also Judson Atkinson Candies, Inc. v. Latini-Hohberger
Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008)(stating that “a district court has
broad discretion to require strict compliance with Local Rule 56.1”). The court also
notes that Sims has previously failed to comply with court rules in this case,
specifically failing to appear on a Court’s noticed status hearing.

II. Race Discrimination Claims
Defendants move for summary judgment on the Title VII and Section 1981
race discrimination claims. A plaintiff seeking to defeat a defendant’s motion for
summary judgment on a Title VII discrimination claim can proceed under the direct
or indirect method of proof. Morgan v. SVT, LCC, 724 F.3d 990, 995 (7th Cir.
2013). Under the direct method of proof, a plaintiff must present direct evidence of
unlawful discrimination or show a “convincing mosaic of circumstantial evidence . . .
that point[s] directly to a discriminatory reason for the employer’s action.” Dass v.
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Chicago Bd. of Educ., 675 F.3d 1060, 1071 (7th Cir. 2012)(internal quotations
omitted)(quoting Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 783
(7th Cir. 2004)). Under the indirect method of proof, a plaintiff must first establish a
prima facie case. Morgan, 724 F.3d at 995. If the plaintiff establishes a prima facie
case, “the burden shifts to the employer to offer a non-discriminatory reason for the
adverse employment action.” Id. If the employer offers such a reason, “the burden
shifts back to the plaintiff to present evidence that, if believed by the trier of fact,
would show that the real explanation for the action is discrimination.” Id. Sims has
not pointed to sufficient direct or circumstantial evidence to proceed under the direct
method of proof, and thus, Sims may only proceed under the indirect method of
proof.

A. Prima Facie Case
Defendants argue that Sims cannot establish a prima facie case. To establish a
prima facie case for a general race discrimination claim, a plaintiff must show: (1)
that he “is a member of a protected class,” (2) that he met his “employer’s legitimate
job expectations,” (3) that he “suffered an adverse employment action,” and (4) that
“similarly situated employees outside of the protected class received more favorable
treatment.” Morgan, 724 F.3d at 996 (internal quotations omitted)(quoting Keeton v.
Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012)).

1. Adverse Employment Action
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Defendants argue that Sims has not shown that he suffered an adverse
employment action. In the Title VII context, an action by an employer constitutes an
adverse employment action if it “materially alter[s] the terms or conditions of
employment. . . .” Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir.
2012)(internal quotations omitted)(quoting Crady v. Liberty Nat’l Bank & Trust Co.,
993 F.2d 132, 136 (7th Cir. 1993))(stating that “a materially adverse change might be
indicated by a termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a
particular situation”). An adverse employment action “must be more disruptive than
a mere inconvenience or an alteration of job responsibilities” and “not everything
that makes an employee unhappy is an actionable adverse action

. . . .” Id.

(quoting Crady, 993 F.2d at 136 and Smart v. Ball State Univ., 89 F.3d 437, 441 (7th
Cir. 1996)).
Sims contends that he was subjected to an adverse employment action when,
according to Sims, he discovered that he would be making less money than
Defendants had originally promised. Defendants argue that Sims was paid the
standard wage for his position and that he was not given any wage less than he was
originally promised. Defendants’ statement of material facts confirms that Sims was
paid a standard wage for his position. However, regardless of whether the wage
level paid to Sims constituted an adverse employment action, Defendants concede
that Sims’ employment was ultimately terminated. (SF Par. 32). Such termination
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would suffice as an adverse employment action in the context of a Title VII or
Section 1981 claim.

2. Similarly-Situated Employees
Defendants argue that Sims has failed to point to a similarly-situated
employee outside the protected class who was treated more favorably than Sims. To
meet the similarly-situated requirement for a prima facie case, “a plaintiff must
identify at least one employee who is directly comparable to h[im] in all material
respects.” Perez v. Thorntons, Inc., 731 F.3d 699, 704 (7th Cir. 2013)(stating that
“[t]he proposed comparator need not be identical in every conceivable way, however,
and courts must conduct a ‘common-sense examination’”)(quoting Coleman v.
Donahoe, 667 F.3d 835, 846 (7th Cir. 2012). Defendants’ statement of material facts
shows that Sims was paid the standard wages for his position. For example, it is
undisputed that Sims was hired as a Pest Control Technician. (SF Par. 11-12). It is
also undisputed that the starting rate for Pest Control Technicians at AAE is $11.50
per hour and that “[f]actoring in the potential for overtime compensation, Pest
Control Technicians are able to earn between $30,000 and $35,000 per year.” (SF
Par. 12). Sims has pointed to no evidence showing that he was paid any less than
that amount. Sims has not even identified any comparable employees that would
constitute similarly-situated employees. See Peele v. Country Mut. Ins. Co., 288
F.3d 319, 331 (7th Cir. 2002)(stating that the plaintiff’s “failure to offer . . .
‘comparables’” in regard to other employees “doom[ed] her Title VII and ADEA
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claims”). Nor is there evidence in the record indicating that any non-AfricanAmerican employees at AAE, with similar experience, were not paid in a more
favorable manner. Thus, Sims has failed to satisfy the similarly-situated requirement
and has failed to establish a prima facie case for his Title VII claim.

B. Pretext
Defendants also argue that even if Sims had established a prima facie case, he
has not pointed to sufficient evidence to show that Defendants’ legitimate nondiscriminatory reasons for their actions were a pretext. To meet the pretext
requirement, a plaintiff must show that the defendant’s reason given for the
employment action was a lie to hide unlawful discrimination. See Martino v.
Western & Southern Financial Group, 715 F.3d 195, 202 (7th Cir. 2013)(stating that
“[p]retext means a lie, specifically a phony reason for some action”)(internal
quotations omitted)(quoting Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir.
2002); Smiley v. Columbia College Chicago, 714 F.3d 998, 1002-03 (7th Cir.
2013)(stating that the “focus of the pretext inquiry is whether the proffered reason is
a lie” and “whether it is the true ground of the employer’s action rather than being a
pretext for a decision based on some other, undisclosed ground”)(internal quotations
omitted)(quoting in part Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th
Cir. 2006); Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 298 (7th Cir.
2010)(stating that to show pretext, the plaintiff must show the action is based on a
“lie—not just an error, oddity, or oversight”); Bodenstab v. County of Cook, 569 F.3d
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651, 657 (7th Cir. 2009)(stating that for the pretext requirement, a plaintiff must
show that “the defendant’s explanation is unworthy of credence”)(internal quotations
omitted)(quoting credence Filar v. Bd. of Educ. of City of Chicago., 526 F.3d 1054,
1063 (7th Cir. 2008).
In the instant action, Sims claims that Defendants decided to pay Sims a lesser
wage once they discovered that Sims was African-American. (Compl. Par. 31-32).
However, it is undisputed that before Connelly called to interview Sims, Connelly
was aware that Sims was African-American. (SF Par. 9). If Connelly truly had an
animus against African-Americans then he could have declined to choose Sims for
an interview. Instead, the evidence shows that Connelly chose to call Sims for the
interview. Connelly’s motivation in interviewing and hiring Sims is also established
in the record. It is undisputed that Connelly had decided to hire Sims because
Connelly “understood that [Sims] lived in one of the buildings that [AAE] serviced,
and hoped to hire [Sims] as a way of helping one of the Company’s good
customers.” (SF Par. 8). Thus, the undisputed facts show that Connelly hired Sims
for that reason, knowing Sims was African American, and that AAE paid Sims the
standard wage for his position. Such facts in no way suggest a hidden animus
against Sims because of his race.
The undisputed facts also show that Sims acted unprofessionally, which led to
the termination of his employment. It is undisputed that when Sims arrived at work
on his first day, he had failed to obtain a copy of his driving record as previously
instructed. (SF Par. 17). It is also undisputed that Sims was required to complete a
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drug screening for his employment and that the clinic performing the screening
called Connelly to inform him that Sims was “refusing to provide the clinic with a
copy of his photo identification,” and “was loud, disruptive, and uncooperative.” (SF
Par. 19). It is also undisputed that on September 6, 2012, Sims rode along with,
Tikayla Ewing-Williams (Ewing-Williams), another AAE employee, as part of Sims’
training. (SF Par. 26). After the ride-along, it is undisputed that Sims told “Connelly
that he was tired and wanted to go home, even though all he had done was shadow”
Ewing-Williams. (SF Par. 28). It is also undisputed that Ewing-Williams later told
Connelly that Sims “displayed a negative attitude, and had made rude and
inappropriate comments to her about the customers.” (SF Par. 31). To the extent
that Sims contends that Ewing-Williams was a party to the alleged race
discrimination, that would make little sense since it is undisputed that EwingWilliams herself is African-American. (SF Par. 26).
It is further undisputed that “[b]ased on [Sims’] ongoing uncooperative
behavior and bad attitude from the moment he was hired, . . . Connelly decided to
terminate [AAE’s] employment of [Sims] on September 7, 2012.” (SF Par. 32).
Whether or not Sims disagrees with Connelly’s assessment of Sims’ attitude or the
wisdom of the decision to terminate Sims’ employment is not determinative for the
pretext inquiry. See Bates v. City of Chicago, 726F.3d 951, 956 (7th Cir.
2013)(stating that “[t]he focus of a pretext inquiry is whether the employer’s stated
reason was honest, not whether it was accurate, wise, or well-considered”)(internal
quotations omitted)(quoting Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir.
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2000)). Thus, Sims has failed to show that the given reason for his termination was a
pretext.
Sims has thus failed to establish a prima facie case or pretext for his Title VII
claim and he likewise has failed to do so for his Section 1981 claim since the same
standard is generally applied to such claims. See Alexander v. Casino Queen, Inc.,
739 F.3d 972, 979 n.2 (7th Cir. 2014)(stating that “the analysis for” Title VII and
Section 1981 “claims is generally the same under either statute”); Smiley, 714 F.3d at
1002 (stating that the Court “generally appl[ies] the same standards to Title VII and
section 1981 race discrimination claims at the summary judgment stage”);
Swearnigen-El v. Cook County Sheriff’s Dept. 602 F.3d 852, 860 n.6 (7th Cir.
2010)(stating that “[t]he same requirements for proving discrimination apply to
claims under Title VII, § 1981, and § 1983”); Cerutti v. BASF Corp., 349 F.3d 1055,
1060-61 (7th Cir. 2003)(stating that “[a] plaintiff may prove employment
discrimination under the ADEA, Title VII, and § 1981, using either the ‘direct
method’ or ‘indirect method’”); Friedel v. City of Madison, 832 F.2d 965, 971-72
(7th Cir. 1987)(stating that “[w]hen the plaintiff alleges intentional discrimination, . .
. it is clear that the same standards in general govern liability under sections 1981,
1983, and Title VII”). Sims has not pointed to sufficient evidence to prevail on his
Section 1981 claim. Based on the above, Defendants’ motion for summary judgment
on the Title VII and Section 1981 claims is granted.

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III. ADEA Claim
Defendants move for summary judgment on the ADEA claim. As with a Title
VII claim, a plaintiff seeking to defeat a defendant’s motion for summary judgment
on an ADEA claim can proceed under the direct or indirect method of proof.
Andrews v. CBOCS West, Inc., 2014 WL 575893 (7th Cir. 2014). The standard for
the direct and indirect methods of proof for ADEA claims mirrors the standard for
Title VII claims. Id. Sims has not pointed to sufficient direct or circumstantial
evidence to proceed under the direct method of proof.
In regard to the indirect method of proof, Sims has failed to point to evidence
showing that a similarly situated employee outside the protected class was treated
more favorably than Sims. Sims contends that at the relevant time he was forty-four
years old, but Sims has failed to identify any younger employees who were similarly
situated. (Compl. Par. 3). Nor has Sims pointed to evidence that he was treated less
favorably than other younger employees. As indicated above, the undisputed facts
show that Sims was paid the standard wage for his position, and that he was fired
because of his unprofessional conduct. Thus, Sims has failed to establish his prima
facie case for his ADEA claim.
Defendants also argue that even if Sims had established a prima facie case, he
has not pointed to sufficient evidence to show that Defendants’ legitimate nondiscriminatory reasons for their actions were a pretext. Sims has failed to point to
any evidence indicating an animus against him because of his age. In fact, it is
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undisputed that over forty percent of AAE’s employees are over forty years of age.
(SF Par. 13). Thus, Sims has failed to meet the pretext requirement for his ADEA
claim as well. Based on the above, Defendants’ motion for summary judgment on
the ADEA claim is granted.

CONCLUSION
Based on the foregoing analysis, Defendants’ motion for summary judgment
on the Title VII, Section 1981, and ADEA claims is granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: March 11, 2014

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