Martino v. Western & Southern Financial Group
Filing
62
OPINION AND ORDER granting 54 Motion for Summary Judgment in favor of defendant and against plaintiff. Signed by Judge Theresa L Springmann on 3/13/12. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
EMILIO MARTINO,
Plaintiff,
v.
WESTERN & SOUTHERN FINANCIAL
GROUP,
Defendant.
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CAUSE NO.: 3:08-CV-308-TLS
OPINION AND ORDER
This matter is before the Court on a Motion for Summary Judgment [ECF No. 54] filed
by the Defendant, Western & Southern Financial Group, on July 27, 2011. The Defendant filed a
Brief in Support [ECF No. 56] and an Appendix of Exhibits [ECF No. 55] with the Motion. On
August 1, the Defendant filed a Supplemental Appendix [ECF No. 57] attaching one additional
exhibit. The Plaintiff, Emilio Martino, filed a Memorandum in Opposition [ECF No. 58] to the
Motion and an Appendix of Exhibits [ECF No. 59] on August 29. The Defendant filed a Reply
[ECF No. 60] on September 15.
On June 6, 2008, the Plaintiff filed a Complaint [ECF No. 1] in St. Joseph County
Superior Court. He then filed an Amended Complaint [ECF No. 2] on June 16. The Defendant
removed the action to this Court on June 24, invoking federal question jurisdiction. On October
7, the Plaintiff filed a Second Amended Complaint [ECF No. 22]. The Defendant now seeks
summary judgment on the Second Amended Complaint, which alleges two counts, one for
defamation and one for violations of Title VII of the Civil Rights Act of 1964. Within the Title
VII count, the Plaintiff alleges discrimination on the basis of religion and national origin, and
retaliation against him for asserting rights under the statute.
STANDARD OF REVIEW
Summary judgment is appropriate if the facts supported by materials in the record show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. Fed. R. Civ. P. 56. The motion should be granted so long as no
rational fact finder could return a verdict in favor of the party opposing the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court’s role is not to evaluate the weight of the
evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead
to determine whether there is a genuine issue of triable fact. Id. at 249–50; Doe v. R.R. Donnelley
& Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). The party seeking summary judgment bears the
initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); see also N.D. Ind. L.R. 56-1(a) (stating that the movant must provide a
“Statement of Material Facts” identifying the facts that the moving party contends are not
genuinely disputed). In response, the nonmoving party cannot rest on bare pleadings alone but
must use the evidentiary tools listed in Rule 56 to designate specific material facts showing that
there is a genuine issue for trial. Celotex, 477 U.S. at 324; Insolia v. Philip Morris Inc., 216 F.3d
596, 598 (7th Cir. 2000); see also N.D. Ind. L.R. 56-1(b) (directing that a response in opposition
to a motion for summary judgment “must include a section labeled ‘Statement of Genuine
Disputes’ that identifies the material facts that the party contends are genuinely disputed so as to
make a trial necessary”).
Although a bare contention that an issue of fact exists is insufficient to create a factual
dispute, the court must construe all facts in a light most favorable to the nonmoving party, view
2
all reasonable inferences in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485,
491–92 (7th Cir. 2000), and avoid “the temptation to decide which party’s version of the facts is
more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). A material fact must be
outcome determinative under the governing law. Harney v. Speedway SuperAmerica, LLC, 526
F.3d 1099, 1104 (7th Cir. 2008). “Irrelevant or unnecessary facts do not deter summary
judgment, even when in dispute.” Id.
STATEMENT OF FACTS
This statement of the facts presents—in a light most favorable to the Plaintiff—material
undisputed facts as represented by the parties. This case arises out of an employment relationship
between the Defendant and the Plaintiff lasting about two months. During that time period, two
issues arose relevant to this suit. The Plaintiff did not provide the Defendant with documents
establishing that he was authorized to work in accordance with U.S. immigration laws. The
Defendant also told the Plaintiff that he must quit his outside position as a pastor in order to
continue his employment with the Defendant, and the Plaintiff refused to do so. The Defendant
asserts that it fired the Plaintiff because he failed to provide required I-9 documentation. The
Plaintiff asserts that he was assured he would not be fired but rather placed on unpaid leave until
he could produce the required documents and that the Defendant truly fired him for his refusal to
quit his outside work as a pastor. The Plaintiff also asserts that non-religious outside positions
were routinely approved under the same policy that the Defendant claimed did not permit his
position, and that the Defendant gave another employee with missing I-9 documentation
significantly more time to produce necessary documents. The Defendant sent a letter concerning
3
its termination of the Plaintiff’s employment to the Indiana Department of Insurance. The
Plaintiff asserts that this letter was defamatory or retaliatory. The Defendant asserts it was sent as
a matter of standard company policy.
The Defendant is a financial services corporation with more than 4,000 employees and
offices throughout the United States. The Defendant conducts sales operations out of many
district offices including one in Mishawaka, Indiana (the Michiana Office).
The Plaintiff was born in Italy. He immigrated to the United States in 1963 and became a
United States citizen in 1978. Prior to 2000, the Plaintiff had worked both in law enforcement as
a police officer and in the financial services industry as an agent for John Hancock Financial
Services. He has also worked continuously as the pastor of the First Baptist Church of Union in
Union, Michigan, since May 2000.
In July 2006, the Plaintiff met Andrew Sobol, the District Sales Manager of the
Defendant’s Michiana Office. Sobol and the Plaintiff discussed a job opportunity with the
Defendant. The Plaintiff told Sobol he worked as a pastor. Sobol suggested that he take certain
courses preparing him for a job opportunity with the Defendant and then apply for a job, which
he did. The Defendant offered him a job in August 2006. The Plaintiff filled out and signed an
application for this position on August 14, 2006. He began working in the Michiana Office as a
Sales Representative on September 4, 2006.
Shortly after beginning his work for the Defendant, the Plaintiff signed a Sales
Representative’s Agreement. The Agreement stated that the Plaintiff agreed: “Not to commence
any action or suit relating to [his] employment with [the Defendant] more than six months after
the date of termination of such employment, and to waive any statute of limitations to the
4
contrary.” (Pl.’s Dep. Ex. 17 ¶ III.C, ECF No. 55-6 at 46.) The Agreement further stated that the
Plaintiff agreed: “Not to commence any action or suit against [the Defendant] by reason of its
having furnished information to any regulatory agency, prospective employer or person regarding
[his] record as a Sale Representative, [his] actions while a Sales Representative or the reason for
termination of [his] employment.” (Id. III.D.)
During the Plaintiff’s employment, the Plaintiff, Sobol, and Erin Miller, a Human
Resource Generalist for the Defendant, exchanged a series of emails concerning the Plaintiff’s
position as a pastor. Employees of the Defendant who held outside positions were required to fill
out a form to seek approval of the outside position. Miller was responsible for reviewing these
forms and presenting the requests for approval during a weekly departmental meeting. Miller
testified that she did not identify employees by name when presenting these requests.
Soon after beginning his employment, the Plaintiff submitted the required form disclosing
his position as a pastor, but did not indicate his regular hours or compensation. Miller emailed
the Plaintiff on September 18 requesting information on the average hours worked per week
(excluding Sunday) and average weekly pay for the position. On September 26, Miller emailed
the Plaintiff again indicating that the Plaintiff had not responded to her request for information
and that failure to respond by the next Friday, September 29, would “result in denial of [his]
position.” (Pl.’s Aff. Ex. 4, ECF No. 59-1 at 14.) Later, still on September 26, the Plaintiff
responded that he worked 8 to 10 hours per week with no set days other than Sunday at an
average weekly pay of $300. On September 27, Miller emailed the Plaintiff informing him that
based “on the information provided, [his] personal business venture [did] not comply with [the
Defendant’s] outside positions policy.” (Id., ECF No. 59-1 at 15.) She quoted the Defendant’s
5
outside positions policy in the email: “you agree to devote your entire working time to the
service, success and welfare of” the Defendant. (Id.) She further instructed the Plaintiff to
“terminate this outside business venture immediately.” (Id.)
At this point, also on September 27, Sobol entered the conversation by emailing Miller.
(Pl.’s Aff. Ex. 4, ECF No. 59-1 at 16.) Sobol stated that the Plaintiff’s position was “not a
personal business venture”; rather, it was “community service work.” (Id. (capitalization
altered).) Sobol stated that he had “always thought that [the Defendant] was big on community
service work and wanted [its] agents to give back to the communities from which we make our
livings.” (Id. (capitalization altered).) Sobol continued: “Being a pastor at a small congregation is
the epitome of public service and community involvement. So, I’m confused, maybe community
service work is forbidden now, can you please clarify the company’s policy on this, so I don’t
make this mistake in the future.” (Id. (capitalization altered).) Miller responded to Sobol, again
on the same day: “This situation is a little different because of the amount of time and money
involved.” (Id.)
Sobol then responded to Miller, on September 28, that the Plaintiff was “reluctant to give
up his position as pastor.” (Pl.’s Aff. Ex. 4, ECF No. 59-1 at 17 (capitalization altered).) Sobol
indicated that he had spoken with the Plaintiff and believed that the Plaintiff had “inflated the
[number] of hours per week that this position requires” as it really only required about one to two
hours per week excepting Sundays. (Id. (capitalization altered).) Sobol also said he believed the
Plaintiff would be willing to continue his role as pastor without pay but that the Plaintiff would
“like to make as much money at it, as we would allow.” (Id. (capitalization altered).) Sobol
wrote: “[I]s there a standard amount of income that we will allow a person to make in a public
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service outside position, and if so, what is that amount? Or, is there no standard and it is
determined on a case by case basis. Please advise!” (Id. (capitalization altered).) Miller’s entire
response, sent September 29, was “Andrew [Sobol] this position is being denied due to
consistent past practices regarding outside positions.” (Id.) Sobol responded, also on September
29, “It would help me in my future recruiting efforts to know if we will allow someone to ever
hold a public service position” because Miller’s “implication” was that such positions were not
allowed when prior stated company policy indicated that they were. (Id., ECF No. 59-1 at 18.)
Sobol asked: “Are you saying that the policy has now changed, because if so the field MGMT.
needs to know.” (Id.) Miller responded the same day: “No the policy has not changed, [the
Plaintiff’s] outside position does not fit into our policy due to [past] practices. Paid public service
positions are subject to approval by [Field Human Resources] as stated in the policy.” (Id.)
On October 4, the Plaintiff responded to Miller’s email of September 27 informing him
that his outside position did not comply with the policy. The Plaintiff wrote:
It has become evident from your decision via email on Sept. 27 telling me to
terminate this ‘outside business venture’ immediately that I need to address this
situation. It has also become very evident from your email conversations with my
District Manager Mr. Sobol, that you have no intention of approving my public
service position, which with God’s blessings I will continue to serve in, as pastor of
a small community church. Is the company denying my public service position and
terminating my agent appointment with [the Defendant]? Please be specific so I will
know what my position is with the company. Thank you.
(Pl.’s Aff. Ex. 4, ECF No. 59-1 at 19.) The same day Miller responded: “Your position with [the
Defendant] is not being terminated. We are asking that you terminate your public service position
because, from the information you provided, it does not comply with our policy.” (Id.) Miller
copied Tarah Corlett, Human Resource Manager, on this email. (Id.)
7
Just after he began his employment, the Defendant sought verification of the Plaintiff’s
employment eligibility through use of the I-9 form required by 8 U.S.C. § 1324A(b)(I). The
Plaintiff was unable to locate his Social Security card and did not provide any other document
meeting the form’s requirements. Maxine Edwards, District Administrator for the Michiana
Office, noted on the Plaintiff’s I-9 form that the Plaintiff was seeking a replacement Social
Security card because he could not find his card. Edwards and Sobol spoke with the Plaintiff
several times between September 5 and October 16, 2006, about the documentation required by
the I-9 form. During that time period he twice sought a replacement card from the Social Security
Administration (SSA). Rather than a duplicate card, the SSA provided him first with a document
dated September 9, 2006, which he provided to the Defendant, verifying his Social Security
number but also stating that the document did “not verify [his] right to work in the United
States.” (Pl’s Dep. Ex. 19, ECF No. 55-7 at 3.) Next, the Plaintiff received a document from the
SSA, dated October 6, 2006, indicating that the SSA could not issue him a card on that date
because it was awaiting documentation from the Department of Homeland Security. (Id. Ex. 20,
ECF No. 55-7 at 4.) The Plaintiff understood that the documents he received from the SSA and
various other documents he brought in were not sufficient to meet the I-9 form’s requirements.
(Id. 235–39, ECF No. 55-5.) The Plaintiff sought verification of his naturalization from the
Department of Homeland Security as required by the SSA for receiving a new card; he learned
this process would take 30 to 45 days and informed the Defendant. (Id. 239–43, ECF No. 55.)
A letter dated October 9, 2006, signed by Corlett and addressed to the Plaintiff, indicated
that the Plaintiff had failed to provide documentation verifying his employment eligibility. The
letter stated: “your inability to provide acceptable documentation will result in placing you on an
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unpaid suspension from work until this matter is resolved. . . . we are providing you with five (5)
business days to submit this required information to our Home Office.” (Oct. 9, 2006, Letter,
ECF No. 59-6.) This letter instructed the Plaintiff to “have the required documentation faxed to
[XXX-XXX-XXXX] with a copy of this letter no later than the close of business on October
13th.” (Id.) The Defendant then sent a letter to the Plaintiff, dated October 16, 2006, signed by
Thomas Johnson, Director of Field Human Resources. This letter stated: “Field Human
Resources sent you a letter on October 9, 2006 requesting you send documentation for
employment eligibility purposes by October 13, 2006. To date no documentation has been
received. As such, your employment is terminated effective October 16, 2006.” (Oct. 16, 2006,
Letter, ECF No. 59-7.)
On October 23, the Defendant sent a letter to the Indiana Department of Insurance
indicating that the Plaintiff no longer worked for the Defendant. (Oct. 23, 2006, Letter, ECF No.
59-17.) On November 6, 2006, the Indiana Department of Insurance sent the Plaintiff a letter.
This letter indicated that the Department received a complaint against the Plaintiff and that the
Department would like to resolve the issue without an administrative action against his insurance
license. (Nov. 6, 2006, Letter, ECF No. 59-19.) The letter stated that a complaint against the
Plaintiff was attached, but the attached complaint does not appear in the record.1 The letter also
required the Plaintiff to submit a list of all companies with which he had held appointments in
the previous twelve months or face suspension of his license. (Id.) The Plaintiff responded to the
letter and the Department closed the investigation. (Pl.’s Dep. 259–60, ECF No. 55-5.)
1
The Defendant submits the same letter into evidence—also without any attachments. (Pl.’s Dep.
Ex. 33, ECF No. 55-8 at 42.)
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ANALYSIS
The Defendant argues that the Court should dismiss all of the Plaintiff’s claims as barred
by the six-month contractual limitation period contained in the agreement he signed upon
commencement of his employment. The Plaintiff argues that he did bring his claims within the
six-month period or that, in the alternative, the contract is unenforceable as made without
consideration or as against public policy. The Defendant also argues that the Plaintiff cannot sue
for retaliation because he did not raise retaliation as a claim before the Equal Employment
Opportunity Commission. Because the Court will grant summary judgment to the Defendant, for
the reasons stated below, it will not reach these procedural arguments raised by the Defendant.
A.
Religious Discrimination
Title VII makes it unlawful for an employer to discharge or discipline an employee
because of that person’s religion. 42 U.S.C. § 2000e–2(a)(1). An employee may prove
discrimination under Title VII either directly, or, indirectly under the burden-shifting method, as
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Silverman v. Bd. of
Educ. of City of Chi., 637 F.3d 729, 733 (7th Cir. 2011). “Title VII requires accommodation of
religious practices, when that can be accomplished without undue hardship.” Flowers v.
Columbia Coll. Chi., 397 F.3d 532, 534 (7th Cir. 2005) (citing 42 U.S.C. § 2000e(j)).
Under the direct method, a plaintiff must “present either direct evidence of discriminatory
intent (such as an admission) or enough circumstantial evidence to allow a rational jury to infer
that discriminatory intent motivated his firing.” Burnell v. Gates Rubber Co., 647 F.3d 704, 708
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(7th Cir. 2011). Under the indirect method, a plaintiff carries the initial burden of establishing a
prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima
facie case of discrimination, a plaintiff must offer evidence that: “(1) he is a member of a
protected class; (2) he was qualified for the applicable positions; (3) he suffered an adverse
employment action; and (4) similarly-situated persons not in the protected class were treated
more favorably.” McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009) (citing Fane v.
Locke Reynolds, LLP, 480 F.3d 534, 538 (7th Cir. 2007)).2 However, when an employer presents
a legitimate, nondiscriminatory basis for the adverse employment action the burden returns to the
plaintiff and the burden shifting of the prima facie is no longer relevant. See Brewer v. Bd. of Tr.
of the Univ. of Ill., 479 F.3d 908, 915–16 (7th Cir. 2007) (citing St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 510–11 (1993)); see also Larson v. Portage Tp. School Corp., 293 Fed. Appx.
415, 418–19 (7th Cir. 2008) (“[W]here an employer offers a legitimate, nondiscriminatory reason
for firing an employee, it simply ‘doesn’t matter’ whether the plaintiff presented a prima facie
2
A plaintiff can also establish a prima facie case of religious discrimination by showing “that the
observance or practice conflicting with an employment requirement is religious in nature, that she called
the religious observance or practice to her employer’s attention, and that the religious observance or
practice was the basis for her discharge or other discriminatory treatment.” E.E.O.C. v. Ilona of Hungary,
Inc., 108 F.3d 1569, 1575 (7th Cir. 1997). “[O]nce the plaintiff has established a prima facie case of
discrimination, the burden shifts to the employer to make a reasonable accommodation of the religious
practice or to show that any accommodation would result in undue hardship.” Id. The Plaintiff here,
however, does not appear to argue his case under the theory that the Defendant refused to provide a
reasonable accommodation. Rather, the Plaintiff makes his primary argument concerning reasonable
accommodation in his brief in a section entitled “[The Plaintiff] engaged in protected activity” in which
he argues that he “did engage in protected activity when he opposed the unlawful employment practice of
failing to accommodate [the] Plaintiff’s status as a pastor.” (Pl.’s Mem. Opp’n Summ. J. 20.) The Court
reads this argument to support his claim of retaliation because engaging in “protected activity” is an
element of the prima facie case for retaliatory discrimination, and not for religious discrimination itself.
In any case, the distinction between making a prima facie case that he was refused a reasonable
accommodation for a religious practice or was fired because of his religion or religious beliefs is not
relevant here because the Court will focus its analysis on whether the Plaintiff successfully calls into
question the Defendant’s stated reason for his firing.
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case of discrimination.”) (quoting Brewer, 479 F.3d at 915–16); Spector v. U.S. Bank Nat’l
Ass’n, 286 Fed. Appx. 333, 335 (7th Cir. 2008) (“Both the district court and the parties’ briefs
analyze whether [the plaintiff] made a prima facie case of sex discrimination. Often, however,
when an employer offers a legitimate, nondiscriminatory reason for firing an employee, it is just
as easy to evaluate the case as a whole to see if the plaintiff has presented enough to survive
summary judgment.”) (citing Brewer, 479 F.3d at 915–16). After “an employer offers a
legitimate, nondiscriminatory reason for firing an employee . . . [t]he inquiry turns to whether the
plaintiff has created a genuine issue of fact about the sincerity of that explanation and therefore
whether the defendant discriminated against her.” Id. (citing Hicks, 509 U.S. at 511; Hague v.
Thompson Distrib. Co., 36 F.3d 816, 823 (7th Cir. 2006)). The Seventh Circuit has also noted
that “[w]here a plaintiff claims . . . that an employer’s legitimate expectations were disparately
applied, the second and fourth elements of the prima facie case are closely intertwined with the
pretext analysis, and the two inquiries may be merged and considered together.” Faas v. Sears,
Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008); see also Everroad v. Scott Truck Sys., Inc.,
604 F.3d 471, 477–78 (7th Cir. 2010) (“In some cases . . . the issue of satisfactory performance
and the question of pretext overlap” because ‘[w]hen the employer asserts as the
nondiscriminatory reason for termination that the employee was not meeting legitimate job
expectations, the credibility of the employer’s assertion is at issue for both the second element of
the plaintiff’s prima facie case and the pretext analysis.”); Gordon v. United Airlines, Inc., 246
F.3d 878, 886 (7th Cir. 2001) (“As we have pointed out on several occasions, this issue of
satisfactory job performance often focuses on the same circumstances as must be scrutinized with
respect to the matter of pretext.”)
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In this case, the Defendant offered a legitimate, non-discriminatory reason for firing the
Plaintiff. The Plaintiff, for his part, does not clearly articulate in his brief the elements of his
prima facie case. For example, he does not explicitly state how the similarly-situated individuals
on which he relies fall outside his class, or even exactly what protected class he falls in.
Nevertheless, the Plaintiff presented evidence attempting to call the Defendant’s asserted basis
for the firing into question. The Court will not, therefore, analyze whether he has successfully
made out a prima facie case. Instead, the Court will review the evidence and legal arguments the
Plaintiff has presented to determine whether he has submitted evidence upon which a reasonable
jury could find that the Defendant’s stated reason for terminating his employment was pretextual
and his firing was motivated in some way by his religion or religious practices or beliefs. The
Plaintiff attempts to show that discriminatory animus motivated the decision and that the
Defendant’s claimed basis for the firing is pretext in four ways: 1) other individuals received
approval for non-religious outside positions under the same policy including at least one
individual who made more money than the Defendant states was allowed under the policy; 2) the
same group of employees involved in both the I-9 issue and his request for approval of his
pastoral position “did not want to accommodate” his position as a pastor (Pl.’s Mem. Opp’n
Summ. J. 4); 3) the same group of employees treated a similarly-situated employee better with
regard to producing employment eligibility documents; and 4) the Defendant first told the
Plaintiff he would be placed on unpaid leave until he could produce the required documentation
and then fired him instead.3
3
The Court categorizes the Plaintiff’s material contentions here for convenience of analysis. In
doing so, the Court considered all of the arguments presented in the Plaintiff’s brief on this issue,
including all of the relevant statements of genuine disputes provided pursuant to Local Rule 56-1.
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The Plaintiff presents evidence that Defendant approved other employees’ s non-religious
positions under the same policy that the Defendant stated did not permit his position as a pastor,
and that at least one such individual earned more money and worked more hours than the
Defendant asserts the policy permits. This evidence includes an affidavit from an employee in the
Michiana Office stating that another employee of that office regularly missed half a day per week
to serve as a music instructor at Indiana University South Bend and the personnel file from the
university indicating that the employee worked there in that capacity. The Plaintiff also submitted
a letter the Defendant provided to the EEOC listing other positions approved by the Defendant,
all of which were for non-religious employment. That letter states that the Defendant’s criteria
for approval under the policy only allowed positions making less than $101 per week and
working fewer than six hours per week excluding Sundays. The Defendant continues to assert
that this is its policy. The personnel file for the individual who worked as a music instructor
appears to indicate that he made more than $100 per week in his outside position, but his outside
position request form provides that he would make $80 per week. The Defendant asserts that it
did not know he was making more than the allowed amount or working more than the permitted
hours. The emails between Sobol and Miller at the time the Plaintiff requested approval
contradict the Defendant’s assertion that it consistently and clearly applied its policy, as Sobol
twice requested a clear statement of the policy and it was not provided to him or the Plaintiff.
Sobol also indicated that the Plaintiff would work as a pastor for free or reduce his pay, and
Miller refused to respond to those offers.
Viewing the evidence in the light most favorable to the Plaintiff and making several
inferences in his favor, he may have created an issue of material fact regarding whether the denial
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of his outside position request was based on, or constituted some evidence of, bias against his
religion or religious practices on the part of the Defendant. However, the Plaintiff has failed to
show how any unfairness or bias in the denial of his outside position, or vengeance against him
for refusing to quit that position, resulted in an adverse employment action. “[B]igotry, per se, is
not actionable. It is actionable only if it results in injury to a plaintiff; there must be a real link
between the bigotry and an adverse employment action.” Gorence v. Eagle Food Ctrs., Inc., 242
F.3d 759, 762 (7th Cir. 2001). The Plaintiff has not presented evidence from which a reasonable
jury could infer that bias with respect to his outside religious position infected the decision to
terminate him on the basis of his failure to produce employment eligibility verification or that the
Defendant did not fire him for its stated reason.4
The Plaintiff argues that Johnson was “at the center of the core group of decision makers”
who oversaw both the I-9 and outside position request issues. (Pl.’s Mem. Opp’n Summ. J. 2,
ECF No. 58.) The Defendant describes the final process leading to the Plaintiff’s termination as
follows. Corlett received approval from Johnson to send a letter to the Plaintiff giving him five
4
The Plaintiff cites Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 380 (7th Cir.
2011), for the proposition that “the Seventh Circuit approves the ‘cat’s paw’ theory of liability, in which
a biased employee’s influence over a decision can infect the decision.” (Pl.’s Mem. Opp’n Summ. J. 15.)
In employment discrimination cases, the “cat’s paw” is the unwitting manager or supervisor
who is persuaded to act based on another’s illegal bias. With sufficient evidence, we permit
juries to draw an inference that another employee’s impermissible bias infected a decision
when a plaintiff is able to show that the biased employee had some degree of influence over
the ultimate decision.
Schandelmeier-Bartels, 634 F.3d at 380. When a plaintiff relies on the cat’s paw theory he must at least
put forward evidence that the “biased voice mattered” and that, regardless of who had nominal decision
making power, an employee with bias against the plaintiff had “decisive input in the decision.” Id. at 381.
Although the Plaintiff uses the language “cat’s paw” and attempts to lump together those involved in the
decision making regarding his I-9 form and his outside position request, he has not presented evidence
showing how Miller had decisive input into the decision to fire the Plaintiff. The Plaintiff has not shown
how any bias that could be inferred from the treatment of his outside position request or from Corlett’s
knowledge of that request infected the decision making concerning his I-9 issue.
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days to provide I-9 documentation. After the five days to provide the documentation passed
Cortlet “explained the situation to . . . Johnson, and then took the issue to Divisional Vice
President Bill Skidmore.” (Corlett Aff. ¶ 18, ECF No. 55-11.) Skidmore had ultimate authority to
fire the Plaintiff based on recommendations from the Field Human Resource Department.
(Skidmore Aff. ¶ 8, ECF No. 55-1.) Skidmore stated that he had no information concerning the
Defendant’s request for an outside position or his religion at the time he made the decision to fire
the Plaintiff. (Id. ¶ 9.) Based on Skidmore’s decision, Johnson signed and sent the letter
terminating the Plaintiff’s employment. (Johnson Aff. ¶ 9, ECF No. 55-10.) The Court accepts,
based on the letter signed by Johnson and his supervisory position over Corlett, that a jury could
conclude that Johnson, not Skidmore as asserted by the Defendant, made the decision to fire him.
Johnson, however, also testified that he based his decision and recommendations
concerning the Plaintiff’s employment on the Plaintiff’s failure to provide required I-9
documentation. He further testified that, at the time he made this decision, or recommendation,
he knew nothing about the Plaintiff’s religion or his request for approval of an outside position.
Johnson testified in his deposition:
Q: Were you involved at all in the outside position issue? A: No. I wasn’t familiar
with [the Plaintiff] having an outside position. As I said, in our Wednesday meeting,
as a rule we didn’t discuss who these people were. It’s just here’s the details around
the position. Does it fit our criteria, not fit our criteria. Q: Do you remember anything
that was mentioned that you associated with [the Plaintiff] relative to the outside
position? A: No.
(Johnson Dep. 110, ECF No. 55-18.) His testimony was consistent with Miller’s affidavit with
regard to an anonymity policy when discussing outside position requests. (Miller Aff. ¶5, ECF
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No. 55-14.)5 The Plaintiff attempts to create an issue of material fact with regard to Johnson’s
knowledge of the Plaintiff’s religion and outside position request. He argues that “Johnson [had]
ultimate authority to approve any requested outside position after conversation” with Corlett,
Miller, and others and that “Corlett kept Johnson apprised of developments relating to [the
Plaintiff].” (Pl.’s Mem. Opp’n Summ. J. 6, ECF No. 58 (citing Def.’s Ans. to Interrogatory No.
10, ECF No. 58-4).) The Plaintiff also argued, without citation to the record, that Johnson would
be aware of the Plaintiff’s “stand on religion” because he “worked closely” with Corlett and
Miller. (Id. 20.) However, the document relied on by the Plaintiff to support his contention that
Corlett informed Johnson of the Plaintiff’s outside position request indicates, in keeping with
Johnson’s testimony, that Corlett kept Johnson apprised of efforts to obtain employment
eligibility verification and does not contradict Johnson’s statements that he was unaware of the
Plaintiff’s outside position request. The Plaintiff also points out that several relevant individuals
worked in the same building and that Corlett and Miller worked under Johnson’s supervision.
These facts do not materially contradict Johnson’s testimony regarding his lack of knowledge of
the Plaintiff’s religion or his outside position request or support an inference that his statements
are untrue. Accordingly, the Court finds that the Plaintiff fails to create an issue of material fact
for trial with regard to Johnson’s knowledge of developments concerning the Plaintiff’s request
for approval for his position as a pastor.
5
That Miller copied Corlett, another member of the Field Human Resource Department, on one
of the emails sent to the Plaintiff concerning his outside position contradicts her statement that “typically,
no one in the Field Human Resource Department, other than me, knew the name of (or any other
information about) the associate requesting the approval.” (Miller Aff. ¶ 5, ECF No. 55-14.) The Plaintiff
does not raise this fact as an indication that Miller is lying about the policy and Corlett’s knowledge does
not contradict Johnson’s testimony that he never learned of the Plaintiff’s request.
17
The Plaintiff also presents evidence describing the case of another employee who he
argues the Defendant treated more favorably than he with regard to the submission of I-9
documents. The parties present extensive factual disputes about the verification of employment
eligibility for that individual, Michael Bacon. According to the Plaintiff, Bacon worked for the
Defendant for several years without legal authorization after a temporary work visa expired. By
July 13, 2006, Johnson was aware that the Defendant was seeking verification from Bacon of his
employment eligibility. Yet, it was not until August 14, 2006, that Johnson finally emailed the
Defendant and gave him a fixed amount of time, until August 18, 2006, to provide the required
documents or he would “make the necessary employment decisions with the information
currently at hand.” (Aug. 14, 2006, Email Exchange, ECF No. 59-18 at 2.) The Plaintiff argues
that he was not given as much time to produce documents as Bacon and that Johnson did not
ultimately terminate Bacon as he did the Plaintiff. Rather, the Defendant allowed Bacon to
resign, while the Plaintiff was not given that opportunity. Further, Bacon testified that he lied to
the Defendant to draw out the process of verification of his employment eligibility.6
“[E]vidence that similarly situated employees outside [a plaintiff’s] protected classes
received more favorable treatment from the same decision-maker . . . [such as] evidence of
selective enforcement of a rule ‘calls into question the veracity of the employer’s explanation.’”
Coleman v. Donahoe, — F.3d —, 2012 WL 32062, at *16 (7th Cir. 2012) (quoting Olsen v.
Marshall & Ilsley Corp., 267 F.3d 597, 601 (7th Cir. 2001)). “A similarly situated employee is
one who is directly comparable to the plaintiff in all material aspects. Factors to consider include
6
Bacon stated in an affidavit that, in July and August 2006, he lied about his authorization to
work in the United States in order “to delay [the Defendant] while [he] worked with an immigration
lawyer to obtain work authorization.” (Bacon Aff. ¶ 6, ECF No. 55-15.)
18
whether the employees 1) had the same job description, 2) were subject to the same standards, 3)
were subject to the same supervisor, and 4) had comparable experience, education, and other
qualifications.” Salas v. Wis. Dept. of Corr., 493 F.3d 913, 923 (7th Cir. 2007) (citations and
quotation marks omitted).
Although there might be an issue of material fact with regard to whether Bacon was
treated more favorably, the Plaintiff failed to submit evidence creating an issue of material fact
that he and Bacon were similarly situated and, thereby, failed to provide evidence that a rational
finder of fact could rely on in determining that evidence of the Defendant’s treatment of Bacon
casts doubt on the Defendant’s explanation of its treatment of the Plaintiff.7 Taking into account
the Seventh Circuit’s statement that comparable experience and qualifications are factors to be
considered on the question of whether two employees are similarly situated, the Plaintiff and
Bacon were not similarly situated. Bacon had worked for the Defendant for several years while
the Plaintiff was recently hired, so Bacon’s comparable experience and qualifications were
obviously different. Further, a different group of individuals, though one also including Johnson,
made the decision concerning Bacon’s employment eligibility verification. Corlett states that she
had no involvement in Bacon’s I-9 process because he worked in a division of the Defendant that
she did work with. (Corlett Aff. ¶ 26.) The Plaintiff attempts to controvert her statement by
7
The Plaintiff provided no evidence that Bacon was outside his class. To the contrary, the
Defendant submits an affidavit from Bacon in which he testifies that he is also Christian. (Bacon, Supp.
Aff. ¶2, ECF No. 60-1.) The Court would, however, permit an inference in this case that the Plaintiff’s
religion and religious beliefs were nevertheless different enough to place them in different classes. See
Andrews v. Virginia Union Univ., 2007 WL 4143080, at *5 (E.D. Va. Nov. 19, 2007) (“An individual’s
religion is a product of that individual’s conscience, and the sincerely held religious beliefs and practices
of individuals who ascribe to the same denomination may be markedly different; the religious practices
of one Baptist may be quite unlike another.”).
19
indicating she testified, in her deposition, that she knew about Bacon’s case and that Johnson
testified that Corlett made inquires into and was copied on emails relating to Bacon’s case. That
Corlett knew that an open issued existed and sought and received information concerning
Bacon’s I-9 documentation does not controvert her statement both in her affidavit and her
deposition that she did not take part in his case as a decision maker. (Corlett Dep. 9–1, ECF No.
59-13.)
The Defendant argues that Keith Payne, the Divisional Vice President for Division B,
took a more assertive role in Bacon’s case than Skidmore did in the Plaintiff’s case and provides
statements from Johnson and Payne supporting those assertions. (Johnson Aff. ¶ 17, ECF No. 5510; Payne Aff. ¶ 5, ECF No. 57-1.) Payne stated that he had a good working relationship with
Bacon and that he “took the lead” in Bacon’s re-verification issue. (Payne Aff. ¶ 5.) Payne also
states that he was not involved in the Plaintiff’s employment verification. (Id. ¶ 11.) The Plaintiff
has not controverted this evidence. The Plaintiff and Bacon were not similarly situated. A
straightforward inference could be drawn that Bacon received more favorable treatment because
he had been at the firm longer and developed better connections than the Plaintiff, or that he was
better positioned within the firm to drag the process out. Unlike the Plaintiff, Bacon testified that
he intended to delay the process of his I-9 verification, further supporting the Defendant’s
contention that the two were not similarly situated. There is no reasonable inference to be drawn
that because Bacon received more time to come into compliance and left on his own terms, the
Defendant’s explanation that it fired the Plaintiff for failing to provide necessary documentation
is untrue.
Furthermore, the Plaintiff did not submit evidence indicating that the Defendant was
20
generally out of compliance with regard to I-9 and sought to verify only his employment
eligibility. See Coleman, 2012 WL 32062, at *16 (“The plaintiff’s ‘showing that the company did
not enforce such a policy’ is evidence from which the ‘jury . . . could rationally conclude that the
legitimate non-retaliatory reason offered by [the employer] was a pretext for discharging [the
plaintiff].’”) (quoting Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 202 (3d Cir. 1996)). Rather, he
argues that the Defendant did not provide consistent evidence regarding the policy and gave
some employees more time than others. Johnson stated that the policy was to give only two or
three days to correct I-9 issues and also stated that the Defendant would sometimes give more
time. Corlett testified that the policy was to give three business days to produce acceptable
documents followed by a five-day unpaid suspension. The Plaintiff himself received nearly six
weeks to produce his documentation, therefore, to the extent he presented evidence that the
company failed to enforce a consistent policy on the time provided for requiring I-9 documents,
he has only argued that he was treated more favorably than some other employees of the
Defendant. Indeed, the Plaintiff’s testimony that the Defendant sought I-9 documentation from
him his first week on the job and continued to follow up with him when the documents he
provided did not appear sufficient supports the Defendant’s contention that it actively sought to
stay in compliance with its obligation to verify the employment eligibility of its employees.
Similarly, the emails submitted by the Plaintiff to support his argument that Bacon received more
favorable treatment repeatedly demonstrate the Defendant’s concern with staying in compliance
on I-9 issues, even if they also demonstrate some degree of inefficiency or incompetency in
enforcing the rules as to Bacon. The undisputed evidence is that the Defendant sought
employment eligibility verification from the Plaintiff, Bacon, and all other employees. The
21
evidence relied on by the Plaintiff fails to call into question the Defendant’s stated rationale for
firing the Plaintiff.
The Plaintiff also argues that statements indicating that he would be placed on unpaid
leave until he could produce his I-9 documents rather than be fired establish pretext. Again, the
Plaintiff has not provided evidence that the Defendant had a policy of placing individuals who
could not provide employment eligibility documentation on unpaid leave until they could
produce this documentation. The Plaintiff relies on the letter sent to him by Corlett placing him
on unpaid suspension from work on October 9, 2006. The letter stated: “your inability to provide
acceptable documentation will result in placing you on an unpaid suspension from work until this
matter is resolved. . . . we are providing you with five (5) business days to submit this required
information to our Home Office.” (Oct. 9, 2006, Letter, ECF No. 59-6.) The Plaintiff’s reading of
this language is strained as he argues “it leaves a very clear impression that [the Plaintiff] would
be suspended until he resolved the I-9 issue.” (Pl.’s Mem. Opp’n Summ. J.) The letter, in the
context of repeated requests by the Defendant for I-9 documentation from the Plaintiff, at the
very least leaves open the possibility that he would be fired at the end of the five-day period
provided for submitting his documents. The letter does not indicate or even suggest that the
Defendant’s decision to fire him for failure to produce those documents was untrue, or otherwise
support his claims.
The Plaintiff has not submitted evidence sufficient to allow a reasonable trier of fact to
conclude that the Defendant’s explanation for firing him is untrue or that he was discriminated
against. Accordingly, the Defendant is entitled to judgment as a matter of law on the Plaintiff’s
claim of religious discrimination under Title VII.
22
B.
Retaliation
Title VII makes it unlawful “for an employer to discriminate against any of his employees
. . . because [the employee] has opposed any practice made an unlawful employment practice by
[Title VII], or because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). When
asserting a charge of retaliation under Title VII, a plaintiff may proceed under the direct or
indirect method of proof. Metzger v. Ill. State Police, 519 F.3d 677, 681 (7th Cir. 2008). Under
the direct method of proving retaliation, a plaintiff must present either direct or circumstantial
evidence showing that: (1) she engaged in statutorily protected activity; (2) she suffered a
materially adverse action taken by the employer; and (3) a causal connection exists between the
protected activity and the adverse action. Id. Under the indirect, burden-shifting method, the
plaintiff must establish a prima facie case of retaliation by showing that: (1) she engaged in
statutorily protected activity; (2) she was performing her job to her employer’s legitimate
expectations; (3) she suffered a materially adverse action; and (4) she was treated less favorably
than similarly situated employees who did not engage in statutorily protected expression. Id.
Statutorily protected activity can include informal, internal complaints. Davis v. Time
Warner Cable of Se. Wis., L.P. 651 F.3d 664, 674 (7th Cir. 2011). However, “[m]erely
complaining in general terms of discrimination or harassment, without indicating a connection to
a protected class or providing facts sufficient to create that inference, is insufficient.”
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). “Although an employee
need not use . . . magic words . . . she has to at least say something to indicate her [protected
status] is an issue. An employee can honestly believe she is the object of discrimination, but if
23
she never mentions it, a claim of retaliation is not implicated.” Sitar v. Ind. Dep’t of Transp., 344
F.3d 720, 727 (7th Cir. 2003) (quotation marks omitted).
The email sent by the Plaintiff to Miller stating that he would “with God’s blessings . . .
continue to serve . . . as pastor of a small community church” does not constitute protected
activity under the statute because it does not indicate that the Plaintiff believes he is being
discriminated against on the basis of religion. (Pl.’s Aff. Ex. 4, ECF No. 59-1 at 19.) The
Plaintiff argues that the email was protected activity because in it the Plaintiff objected to an
allegedly unlawful employment practice, namely the Defendant’s unwillingness to make what he
asserts would have been a reasonable accommodation for the Plaintiff’s religious practices. (Pl.’s
Mem. Opp’n Summ. J. 20.) However, the Plaintiff made no such assertion in the email itself. The
Plaintiff stated in the email that he wanted to continue serving as pastor of his church, implied
that he was willing to quit his job with the Defendant to do so, and requested final clarification
on the Defendant’s position. Nothing in the email states or implies that there is anything unlawful
or discriminatory about the Defendant’s policy even if the tenor of the email indicates that the
Plaintiff finds the policy objectionable. The Plaintiff’s email makes no explicit mention of his
religious convictions or of any alleged anti-Christian or anti-religious animus, bias, or
discrimination of any kind. See Davis, 651 F.3d 664 at 674 (finding that a plaintiff’s accusing his
supervisor “of being ‘unfair’ and treating his white subordinates more favorably than his African
American ones” could established protected activity under the statute); Casna v. City of Loves
Park, 574 F.3d 420, 427 (7th Cir. 2009) (finding that the statement “[a]ren’t you being
discriminatory?” could establish protected activity under similar statutory provision of the
Americans with Disability Act). The Plaintiff’s claim of retaliation fails as a matter of law
24
because he did not submit evidence that he engaged in statutorily protected activity, a necessary
requirement to support a claim of retaliation under the statute. Further, even if the Plaintiff could
prove that he undertook statutorily protected activity, his claim would still fail because he did not
submit evidence supporting a causal connection between the activity he took and the negative
employment action (under the direct method) or showing that similarly-situated employees who
did not engage in statutorily protected activity were treated better (under the indirect method).
C.
Defamation
To prove defamation in Indiana, a plaintiff must show that the defendant made a
communication with four elements: “1) defamatory imputation; 2) malice; 3) publication; and 4)
damages.” Schrader v. Eli Lilly & Co., 639 N.E.2d 258, 261 (Ind. 1994).
One type of defamation action, alleging defamation per se, arises when the language
of a statement, without reference to extrinsic evidence, constitutes an imputation of
(1) criminal conduct, (2) a loathsome disease, (3) misconduct in a person’s trade,
profession, office, or occupation, or (4) sexual misconduct. In contrast, if the words
used are not defamatory in themselves, but become so only when understood in the
context of extrinsic evidence, they are considered defamatory per quod.
Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010) (citations omitted). In an action
for defamation per se, damages are presumed. Kelley v. Tanoos, 865 N.E.2d 593, 597 (Ind.
2007). “In an action for defamation per quod, the plaintiff must demonstrate special damages.”
Id. “Any statement actionable for defamation must not only be defamatory in nature, but [also]
false.” Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 136 (Ind. 2006).
The Plaintiff argues the letter sent by the Defendant constituted defamation per se
because it implied that he had “committed a criminal act, or had otherwise done something
25
improper as a licensed insurance agent, triggering the notice to the department.” (Pl.’s Mem.
Opp’n Summ. J. 22, ECF No. 58.) The letter raises no imputation of criminal conduct or
professional misconduct on its face. The letter states that the Plaintiff “no longer represents” the
Defendant and “is no longer” in the Defendant’s employment. (Oct. 23, 2006, Letter, ECF No.
59-17.) The letter indicates that the Defendant attached the letter it sent to the Plaintiff upon his
termination, which indicated the reasons for termination. It appears that this attachment was the
same letter Johnson sent to the Plaintiff on October 16, 2006. This letter also does not, on its
face, impute criminal conduct or professional misconduct, rather it states only that the Plaintiff
failed to provide “documentation for employment eligibility purposes” by the date required by
the Defendant. (Oct. 16, 2006, Letter, ECF No. 59-7.)8 Furthermore, the statement in this letter
closest to impugning the Plaintiff’s reputation, that he failed to provide necessary documentation,
was true. The Plaintiff has failed to submit evidence supporting a claim for defamation per se.
With regard to defamation per quod, while the Plaintiff established publication and may
have created a material issue of fact with regard to defamatory imputation, he has failed to
support either malice or damages. Concerning malice, the Defendant submits an affidavit from
Brenda Feige, who sent the letter, testifying that she had no knowledge of the Plaintiff’s religion
or his refusal to resign his position as pastor, but rather sent the letter to the Department as a
matter of routine company policy. The Court finds no malice on the part of Feige as the Plaintiff
points the Court to no evidence contradicting her affidavit.
8
The Plaintiff argues that the imputation of professional misconduct is premised on the statutory
requirement contained in Indiana Code § 27-1-15.6-15. This statute only requires notification to the
Indiana Department of Insurance of the termination of an insurance agent where the agent violated
certain rules. Such extrinsic information falls outside the definition of defamation per se.
26
The Plaintiff argues that Johnson “knew [the letter] would be sent and did nothing to stop
it” and that “malice certainly can be inferred from the circumstances.” (Pl.’s Mem. Opp’n Summ.
J. 23.) The Plaintiff argues Johnson could have included less information in his letter that was
ultimately forwarded to the Department by Feige. However, the mere fact that the Johnson knew
either letter (his initial letter terminating the Defendant or Feige’s letter) would be sent to the
Department does not provide evidence of malice towards the Plaintiff—particularly where
Johnson testified that he was never aware of the Plaintiff’s religion or his request for approval of
his outside pastoral position. Johnson presents evidence that he acted without malice towards the
Plaintiff. The Plaintiff has not submitted evidence contradicting that testimony.
The Plaintiff has also failed to provide evidence of special damages. The Plaintiff’s focus
in his brief on arguing for defamation per se appears to concede this point. He argues only that he
“suffered humiliation and embarrassment as a result of having to defend his license to the Indiana
Insurance Commissioner based on a report that never should have been made.” (Id. 22.) Such
emotional harm does not constitute special damages and is insufficient to support a claim of
defamation per quod. Lovings v. Thomas, 805 N.E.2d 442, 448 (Ind. Ct. App. 2004) (“Emotional
and physical harms are not special damages unto themselves, but rather are parasitic damages,
viable only when attached to normal (i.e., pecuniary) special damages.”).
The Court will grant summary judgment in favor of the Defendant on the Plaintiff’s
claims of defamation because the Plaintiff has failed to provide evidence supporting a claim of
defamation per se or per quod.9
9
The Defendant also presents persuasive arguments concerning privilege and consent that the
Court need not reach.
27
D.
National Origin Discrimination
The Defendant argues that the Plaintiff waived his national origin claim by failing to
respond to the Defendant’s arguments against this claim in his brief. (Reply Br. Supp. Mot.
Summ. J. 1, ECF No. 60.) The Court agrees. See Fed. R. Civ. P. 56(e) (“If a party fails to
properly support an assertion of fact or fails to properly address another party’s assertion of fact
as required by Rule 56(c), the court may: . . . consider the fact undisputed for purposes of the
motion.”). The Defendant argued in its brief that none of the decision makers were aware of the
Plaintiff’s national origin. (Def.’s Br. Supp. Mot. Summ. J. 17, ECF No. 56.) Summary judgment
is the moment in a lawsuit when a party must show what evidence it has that would convince a
trier of fact to accept its version of events. Koszola v. Bd. of Educ. of City of Chi., 385 F.3d 1104,
1111 (7th Cir. 2004). The Plaintiff’s Italian origin is not even mentioned in his brief nor is
national origin otherwise presented in support of any allegation of discrimination. The Court will
grant summary judgment on the Plaintiff’s national origin claim because he did not present
evidence supporting it or respond to the Defendant’s arguments against this claim in his brief.
CONCLUSION
For the reasons stated above, the Court GRANTS the Defendant’s Motion for Summary
Judgment [ECF No. 54]. The Court ORDERS the Clerk to ENTER JUDGMENT in favor of the
Defendant and against the Plaintiff.
SO ORDERED on March 13, 2012.
s/ Theresa L. Springmann
28
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
29
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