Bond v. South Bend City of
Filing
56
OPINION AND ORDER GRANTING 50 MOTION for Summary Judgment by Defendant South Bend City of. Clerk DIRECTED to DISMISS, WITH PREJUDICE, Plaintiff John Bond Sr's Complaint. Signed by Judge Rudy Lozano on 3/23/16. (cc: John Bond Sr).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JOHN BOND, SR.,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CITY OF SOUTH BEND,
Defendant.
No. 3:14-CV-1902
OPINION AND ORDER
This matter is before the Court on “Defendant’s Motion for
Summary Judgment,” filed by Defendant, City of South Bend, on
September 14, 2015 (DE #50).
this motion (DE #50) is GRANTED.
For the reasons set forth below,
The Clerk of the Court is ORDERED
to DISMISS this case WITH PREJUDICE.
BACKGROUND
On September 16, 2014, pro se Plaintiff, John Bond (“Bond”),
filed an employment discrimination complaint against the named
Defendant, City of South Bend (“South Bend”). (DE #1.)
Bond
alleged that South Bend was liable to him for discrimination based
upon his race because he was wrongfully terminated and falsely
accused in violation of Title VII of the Civil Rights Act of 1964,
as amended 42 U.S.C. § 2000e-5.
South Bend filed for summary judgment on September 14, 2015,
requesting that the Court enter summary judgment against Bond on
all claims raised in the complaint because there are no genuine
issues of material fact, and South Bend is entitled to summary
judgment as a matter of law.
On September 22, 2015, this Court
gave Bond notice of the consequences of failing to properly respond
to the summary judgment motion pursuant to Timms v. Frank, 953
F.2d 281, 285-86 (7th Cir. 1992).
(DE #52.)
The notice also
advised Bond that his response was due on or before October 20,
2015. Id. Bond filed his response to the motion for summary
judgment on October 21, 2015.
(DE #54.)
Bond’s response is a 28–
page document that is narrative in form.
On November 2, 2015,
South Bend filed its reply to Bond’s response to the motion for
summary judgment arguing that Bond failed to demonstrate a genuine
dispute as to any material fact.
(DE #55.)
Having been fully
briefed, the motion is ripe for adjudication.
DISCUSSION
Summary judgment must be granted when “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). A genuine
dispute 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, 106 S. Ct.
2
2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties
makes summary judgment inappropriate; “[o]nly disputes over facts
that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.” Id. In
determining whether summary judgment is appropriate, the deciding
court must construe all facts in the light most favorable to the
nonmoving party and draw all reasonable inferences in that party's
favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
“However, our favor toward the nonmoving party does not extend to
drawing inferences that are supported by only speculation or
conjecture.”
Fitzgerald
v.
Santoro,
707
F.3d
725,
730
(7th
Cir.2013) (citing Harper v. C.R. Eng., Inc., 687 F.3d 297, 306
(7th Cir.2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in his own pleading, but
rather must “marshal and present the court with the evidence [he]
contends will prove her case.” Goodman v. Nat'l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party fails to
establish the existence of an essential element on which he or she
bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
While the initial burden of production “to inform the district
court why a trial is not necessary” lies with the movant, the
requirements imposed on the moving party “are not onerous” when it
3
is the nonmovant who “bears the ultimate burden of persuasion on
a particular issue.” Modrowski v. Pigatto, 712 F.3d 1166, 1168
(7th Cir. 2013). A party may move for summary judgment based on
either “affirmative evidence that negates an essential element of
the nonmoving party's claim” or by the other approach of “asserting
that
the
nonmoving
party's
evidence
[was]
insufficient
to
establish an essential element of the nonmoving party's claim.”
Id. at 1169 (citation and internal quotation marks omitted). Both
methods are acceptable under the current rules. Id.
It is noteworthy that Bond is a pro se plaintiff.
However,
his pro se status does not relieve him from complying with the
procedural rules associated with summary judgment.
See Ammons v.
Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004)
(requiring pro se plaintiff to strictly comply with Northern
District of Illinois Local Rule 56.1); Anderson v. Hardman, 241
F.3d 544, 545 (7th Cir. 2001) (explaining that pro se litigants
must still comply with procedural rules).
Undisputed Facts
Bond is an African-American who was employed by the City of
South Bend (“South Bend”) from August 18, 1997 to July 24, 2013.
South
Bend
owns
and
operates
a
wastewater
treatment
plant
(“Wastewater”). (See Affidavit of Alvin Greek, hereinafter “Greek
Aff.,” ¶¶ 2, 3.) South Bend provides all its employees with a Rules
4
and Regulations Manual (“Manual”).
(Id. at ¶ 14.)
Among other
things, the Manual establishes a discipline policy, which states
that an employee is subject to discharge on his or her first
offense for falsifying city records.
(Id. at ¶¶ 16, 17.)
Bond worked in a variety of positions and departments for
South Bend before he started working at Wastewater in 2005.
at
¶
11.)
Nancy
Clay
became
the
Operations
(Id.
Supervisor
at
Wastewater in 2008 and was promoted to Operations Manager a few
years later. (Affidavit of Nancy Clay, hereinafter “Clay Aff.” at
¶ 3.) Bond received multiple reprimands for violating Wastewater
rules, such as misuse of sick time and sleeping on the job while
working for South Bend, and the disciplinary notices are attached
as exhibits to Clay’s affidavit.
(Clay Aff. at ¶¶ 5, 6.) Clay
stated in her affidavit that since she became Supervisor in 2008,
she also received several reports of Bond reporting to work while
intoxicated.
(Clay Aff. at ¶ 7.)
As a result of the written reprimands, Bond was discharged
from his employment at Wastewater on two separate occasions prior
to his final termination in 2013.
Aff. at ¶ 13.)
(Id. at ¶ 8; see also Greek
Yet, Bond returned to work on both occasions under
a Final Letter of Warning, which allows a discharged employee to
be reinstated under the terms of the letter.
9.)
(Clay Aff. at ¶¶ 8,
The final letter of warning, dated August 22, 2011, states
that “[t]his letter will serve as official notice to you that you
5
are working under this Final Letter of Warning.
This means that
should any infractions of any work rule in place at Environmental
Services Division of the City of South Bend, or policy or procedure
violations of the Policies and Procedures of the City of South
Bend will result in your immediate termination.”
(DE #54-1, p.
26.)
As the Operations Manager, Clay made all employment decisions
for
all
operators,
which
included
decisions. (Clay Aff. at ¶ 10.)
all
hiring
and
discipline
Only one African-American, Calvin
Watt (“Watt”), has applied for a general operator position since
Clay became Operations Supervisor. (Id. at ¶ 12.)
Clay eventually
interviewed and hired Watt. (Id. at ¶ 11).
South Bend operates Wastewater under permits issued by the
National Pollutant Discharge Elimination System (“NPDES”). The
NPDES requires South Bend to obtain and record a valid sample of
incoming water samples for each 24 hour period. (Greek Aff. at ¶
18.)
South Bend samples the waste water by using a refrigerated
Automatic Sampler Unit (the “Sampler”). (Id. at ¶ 18.)
On a daily
basis, the operators are required to record the temperature and
fluid level from the Sampler.
(Clay Aff. at ¶ 24.) The recorded
data from the Sampler is a very important function of Wastewater
because the NPDES issues penalties for tampering with or falsifying
data. (Greek Aff. at ¶ 19.)
Under the NPDES permit, any person
who falsifies, tampers with, or knowingly renders inaccurate data
6
may be fined up to $10,000 per violation and jailed for up to 180
days. (Id.) Under Clay’s supervision at Wastewater, she has fired
three operators for falsifying data. (Clay Aff. at ¶ 43.) The first
operator that was fired by Clay was Jason Yavorsky, a white male
who was terminated for falsifying data.
(Id. at ¶ 42.)
Relying on recorded Sampler data, Alvin Greek (“Greek”), a
certified operator for South Bend, was responsible for submitting
monthly reports of operation to the state of Indiana.
at ¶ 20.)
(Greek Aff.
While working for South Bend, Bond admits that he has
never heard or seen any kind of racist jokes or comments being
spoken by Alvin Greek or Nancy Clay.
(Bond Dep., p. 101.)
Bond was terminated on July 24, 2013 after an internal
investigation, conducted by Clay, concluded that Bond falsified
data on South Bend documents during his shift on July 18, 2013.
(Clay Aff. at ¶¶ 17, 19, 31, 32.) Bond was responsible during his
shift to check and record the data collected by the Sampler. (Id.
at ¶ 20.)
Clay’s internal investigation concluded that the data
recorded by Bond at 8:10 p.m. on July 18, 2013, was fabricated.
(Id. at ¶ 32.)1 Clay’s 2013 investigation concluded that Calvin
1
Bond improperly disputes the allegations made in South Bend’s motion for
summary regarding the series of events that took place, speculating that
South Bend’s version is incorrect, but failing to designate admissible
evidence to support his subjective beliefs. Fed. R. Civ. P. 56(c)
establishes that a party asserting a fact is genuinely disputed must support
the assertion by: citing to particular parts of materials in the record,
including depositions, documents, affidavits, declarations, stipulations,
admissions, interrogatory answers, or other materials. Fed. R. Civ. P.
56(c)(1)(A). Supported by admissible evidence in the record, South Bend
provides the following:
7
Watt, another operator who is also African-American, also recorded
falsified data from the Sampler.
(Id. at ¶ 35.)
Bond and Watt were the only two employees to record the
Sampler data on July 18, 2013 and July 19, 2013.
(Clay Aff. at ¶
35, 36.) Both Bond and Watt were terminated based upon the finding
that they falsified data on the Sample log sheet.
35.)
(Id. at ¶¶ 33,
Bond and Watt both appealed their discharges in accordance
with South Bend’s contract with the local Teamster’s Union, and
both were heard before a Union Grievance Committee.
34, 37.)
(Id. at ¶¶
The Union Grievance Committee upheld Bond’s termination.
(Id. at ¶ 34.)
However, the Committee held that Watt should be
reinstated and receive additional training because Watt admitted
that he may have recorded data from the previous day’s sample
“When Bond recorded the Sampler data at 8:10 p.m. on July 18, 2013, he
stated that the bottles contained 3.0 L of sample and had an internal
temperature of 3˚C. (Clay Aff. at ¶ 27). When Michelle Smith, the lead
chemist, came to collect the samples on the morning of July 19 however,
she found that the machine did not have any power and that there was only
1.9 L of sample inside both bottles.
Id. at ¶ 28.
She immediately
informed Nancy Clay, who confirmed that there was only 1.9 L of sample in
each bottle from July 18, and that the temperature inside the Sampler
unit was far in excess of 3˚C. Id. Clay then conducted an investigation
that determined that the Sampler had lost power sometime around 11:00
a.m. or 11:30 a.m. on July 18 and consequently could not have been
refrigerated or produced a sample from that point forward. Id. at ¶ 31.
Because the unrefrigerated Sampler had been sitting in 90˚ weather for
approximately nine hours before Bond recorded his data on the 18th, and
because the bottles contained only 1.9 L of sample the next morning, Clay
concluded that Bond fabricated his report of 3˚C and 3 L of sample. Id.
at ¶ 32.
(DE #51, pp. 7-8.) Although Bond disputes this version, and claims much of
this evidence is hearsay, this version of the events is properly supported by
Nancy Clay’s affidavit, who has personal knowledge of the matters stated. Fed.
R. Civ. P. 56(c)(4).
8
bottles by mistake.
(Id. at ¶ 37.)
In contrast to Watt, Bond
maintains that he properly recorded the sample.
13.)
(DE #54 at 10-
The Committee found that Watt “was still a relatively new
employee at this point, so the committee ruled that his employment
should be reinstated and that he should receive additional training
so that he would not make the same mistake again.”
(Clay Aff. at
¶ 37.)
On
September
16,
2014,
Bond
filed
his
discrimination complaint against South Bend.
employment
Bond alleges that
because he was falsely accused and wrongfully terminated, South
Bend is liable to him for discrimination based on his race, in
violation of Title VII of the Civil Rights Act of 1964, as amended
42 U.S.C. §2000e-5.
On September 14, 2015, South Bend filed its
motion for summary judgment. South Bend argues that Bond was fired
for falsifying data and that there is no direct or indirect
evidence of employment discrimination based on race.
Discrimination Based on Race
Bond alleges race discrimination in violation of Title VII.
Title
VII
provides
that
it
is
unlawful
for
an
employer
to
“discharge any individual, or otherwise to discriminate against
any
individual
conditions,
or
with
respect
privileges
to
of
his
compensation,
employment,
because
terms,
of
such
individual's race, color, religion, sex, or national origin.” 42
9
U.S.C. § 2000e–2(a)(1). “In a Title VII case a plaintiff may show
discrimination under either the ‘direct’ or ‘indirect’ methods of
proof.”
Atanus
v.
Perry,
520
F.3d
662,
671
(7th
Cir.
2008)
(citation omitted) (emphasis original).
It is undisputed that South Bend hired Bond, an African
American, in 1997, and terminated his employment in 2013.
Bond
alleges that he was discharged because of his race but he does not
indicate whether he wishes to proceed under the direct or indirect
method in attempting to prove discrimination.
Under the direct proof method, “the plaintiff must present
either direct or circumstantial evidence of discrimination in
[his] . . . opposition to summary judgment.”
Hutt v. AbbVie Prods.
LLC, 757 F.3d 687, 691 (7th Cir. 2014) (quoting Bass v. Joliet Pub.
Sch. Dist. No. 86, 746 F.3d 835, 840 (7th Cir. 2014)).
evidence
means
“an
admission
‘smoking gun’ evidence.”
of
discriminatory
Direct
intent,
i.e.
Id. (quoting Alexander v. Casino Queen,
Inc., 739 F.3d 972, 979 (7th Cir. 2014)).
Here, Bond has put forth
no evidence whatsoever that any decision-maker stated that Bond
was being terminated because of his race. Moreover, Bond does not
claim that anyone associated with the City ever professed any
discriminatory intent.
A plaintiff may also offer “direct proof” of discriminatory
intent
through
circumstantial
evidence.
This
is
sometimes
described as the plaintiff’s burden to present “a convincing mosaic
10
of circumstantial evidence from which a factfinder can make a
reasonable inference of discriminatory intent.”
691.
Courts
ambiguous
oral
look
or
for
things
written
like:
“(1)
statements,
or
Hutt, 757 F.3d at
suspicious
behavior
timing,
toward
or
comments directed at other employees in the protected group; (2)
evidence . . . that similarly situated employees outside the
protected class received systematically better treatment; and (3)
evidence that the employee was qualified for the job in question
but was passed over in favor of a person outside the protected
class.”
Id.
The undisputed facts show that Bond has not presented a
convincing
mosaic
discriminatory intent.
of
circumstantial
evidence
to
find
Bond claims it was suspicious timing:
[T]hat Nancy Clay learned about the downsizing of the
two (2) Operators Positions only one week and a half
after the termination of the two Black Operators. It’s
also suspicious timing that the Sampler broke down right
after Josh Sporleder (white) did his reading, its
suspicious timing that the Sampler was broke only when
John Bond and Clavin [sic.] Watt (Black) did their
reading. It’s suspicious timing that the Sampler was
back up and running in time for Jeff Seiradzki (white)
to get an accurate reading.
(DE #54 at 19.)
However, Clay testified that she did not learn of
the City’s need to restructure its workforce at the plant until a
week and a half after she conducted her investigation and made the
decision to terminate Bond.
(Clay Aff. ¶ 40.) The rest of Bond’s
argument about suspicious timing, claiming it is suspicious that
11
the Sampler was allegedly not working during his reading, but
allegedly was functioning with a white employee, is entirely
speculative and unsupported by any admissible evidence.
This is
insufficient to create a genuine issue of material fact. See Mills
v. First Fed. Sav. & Loan Assoc. of Belvidere, 83 F.3d 833, 84142 (7th Cir. 1996) (“subjective beliefs of the plaintiff are
insufficient to create a genuine issue of material fact”); Scheerer
v. Potter, 443 F.3d 916, 919 (7th Cir. 2006) (“[s]pecific facts
are required; conclusory allegations will not do.”); see also
Visser v. Packer Eng’g Assocs., 924 F.2d 655, 659 (7th Cir. 1991)
(“Discrimination
law
would
be
unmanageable
if
disgruntled
employees . . . could defeat summary judgment by . . . speculating
about the defendant’s motives.
There would be no summary judgment
in [] discrimination cases.”).
Because Bond has failed to prove discrimination using the
direct method, this Court turns to the indirect method next.
The
test for proving discrimination using the indirect method was first
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
03 (1973). A plaintiff may create a presumption of discrimination
by establishing a prima facie case of discrimination.
F.3d at 672.
Atanus, 520
A prima facie case under Title VII can be shown by
demonstrating that: (1) the plaintiff is a member of a protected
class, (2) his job performance met his employer's legitimate
expectations, (3) he suffered an adverse employment action, and
12
(4) another similarly situated individual who was not in the
protected class was treated more favorably than the plaintiff.
Burks v. Wisconsin Dep't of Transp., 464 F.3d 744, 750–751 (7th
Cir. 2006).
In this case, it is undisputed that Bond is a member of a
protected class as he is an African-American, and it is undisputed
that he was terminated.
However, South Bend argues that Bond
cannot satisfy the prima facie test because he fails the fourth
element.
Specifically, South Bend contends that there are no true
comparators
of
similarly
situated
employees
from
outside
the
protected class because Bond and Watt were the only employees to
record data during the time the Sampler was turned off.
concurs.
The Court
“To create an inference of discriminatory intent, the
indirect method requires the identification of similarly situated
comparators because all things being equal, if an employer takes
an action against one employee in a protected class but not another
outside that class, one can infer discrimination; the similarly
situated prong establishes whether all things are in fact equal.”
Chaib v. Indiana, 744 F.3d 974, 984 (7th Cir. 2014) (quotation
omitted).
In this case, Watt is not a similarly situated comparator
because he is in the same protected class as Bond.
Indeed, the
fact that Watt received the same termination as Bond, but then
leniency was shown to Watt, a relatively new African American who
13
admitted he may have made a mistake, actually undercuts Bond’s
argument that he must have been terminated based upon his race.
Although Bond argues there were other white employees who recorded
data on July 18th and 19th, who were not implicated and attaches as
Exhibit 6 a “raw sampler” log that contains certain initials (DE
#54, p. 25), Clay specifically testified that “Bond and Watt were
the only employees who recorded data during the time that the
Sampler was off.”
(Clay Aff. at ¶ 36.)
There is simply no
admissible evidence showing that a similarly situated employee
outside of Bond’s protected class also incorrectly recorded data
but was not terminated.
Here, Bond has not shown that any non-
African American was subject to different treatment than the
treatment of which he complains.
treatment
claims
fail
under
the
As a result, Bond’s disparate
indirect
method
because
no
inference of discrimination arises.
Bond has failed his initial burden of establishing a prima
facie case of discrimination and the Court may grant summary
judgment on this basis alone.
See Paluck v. Gooding Rubber Co.,
221 F.3d 1003, 1011 (7th Cir.2000) (finding where a plaintiff has
“failed to make a prima facie case, [the Court] need not address”
the question of whether the employer’s stated reason for the
termination was in fact a pretext for retaliatory motive); see
also Cowan v. Glenbrook Security Servs., Inc., 123 F.3d 438, 445
(7th Cir. 1997) (“We need not reach the issue of pretext, as
14
plaintiff has failed to state a prima facie case of discriminatory
discharge under McDonnell Douglas.”).
However, even if Bond had
succeeded in establishing a prima facie case of discrimination,
the Court could also grant summary judgment on the ground that
South Bend has articulated a legitimate, non-discriminatory reason
for terminating Bond – Bond falsified data on the Sampler log.
The burden then shifts to Bond to demonstrate that the
“nondiscriminatory” reason is not the real reason for termination,
but instead a cover-up for discrimination. Koski v. Standex Int'l
Corp., 307 F.3d 672, 677 (7th Cir. 2002); see also Pignato v.
American Trans Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994) (holding
that to establish pretext, the plaintiff bears the burden of
establishing that the given reason was a “phony reason”); Anderson
v. Baxter Healthcare Corp., 13 F.3d 1120, 1123–24 (7th Cir.1994)
(plaintiff must provide evidence from which it could be inferred
that “the [employer] lied about its proffered reasons” for his
dismissal). “The fact that the employer was mistaken or based its
decision on bad policy, or even just plain stupidity, goes nowhere
as evidence that the proffered explanation is pretextual.” Essex
v. United States Parcel Serv., Inc., 111 F.3d 1304, 1310 (7th Cir.
1997) (citations omitted).
Here, Bond has produced no evidence whatsoever of pretext.
Bond asserts, without evidence, that Clay terminated Bond and Watt
because she wanted to protect Caucasian workers from losing their
15
jobs during a time of restructuring.
However, Watt was reinstated
after his committee hearing where he admitted that he may have
mistakenly recorded the Sampler data.
Watt continued to work at
Wastewater until early 2015. Bond cannot demonstrate that his
termination was a pretext for discrimination because there is no
reasonable inference that South Bend lied about its proffered
reasons for terminating Bond.
In sum, Bond points to nothing suggesting that South Bend
terminated him because of his race.
Additionally, there is no
evidence from which a reasonable trier of fact could conclude that
South Bend’s proffered reason for terminating Bond was pretextual.
The fact that Watt (a member of the same protected class as Bond)
was reinstated after he admitted to mistakenly recording the
Sampler data, undercuts Bond’s argument that he was fired based
upon his race.
Therefore, Bond’s discrimination claims based upon
race cannot survive summary judgment.
CONCLUSION
For
summary
the
judgment
aforementioned
[DE
#50]
is
reasons,
GRANTED.
The
the
Clerk
motion
is
for
ORDERED
to DISMISS Plaintiff’s Complaint WITH PREJUDICE.
DATED:
March 23, 2016
/s/ RUDY LOZANO, Judge
United States District Court
16
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