Federal Circuits, Seventh Circuit (July 22, 1993)
Docket number: 92-1802
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U.S. Supreme Court - Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)
U.S. Supreme Court - Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)
U.S. Supreme Court - Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)
U.S. Supreme Court - Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983)
Jill L. Kline (argued), Oshkosh, WI, for plaintiff-appellant.
Donald F. Peters, Jr., Thomas T. Cavanaugh (argued) and Ann Haule, Children's Memorial Hosp., Chicago, IL, for defendant-appellee.Before KANNE and ROVNER, Circuit Judges, and REYNOLDS, Senior District Judge.*KANNE, Circuit Judge.Young In Hong, an American citizen of Korean ancestry, sued Children's Memorial Hospital under Title VII, alleging that she was unlawfully discharged from her employment because of her national origin. The district court granted summary judgment for the defendant. We affirm.I.Children's Memorial Hospital hired Young In Hong in November 1968 as a medical technologist in the hospital's Clinical Chemistry Laboratory. As a technologist, Ms. Hong conducted tests on patient specimens in accordance with hospital procedures and quality control measures. She worked part-time until October 15, 1976, when she was made a full-time medical technologist, or "Medical Technologist II." In April 1981, as the result of an across-the-board salary adjustment applicable to all medical technologists working in the laboratory, Ms. Hong's employment classification was changed to that of a "Medical Technologist III."From 1976 until her discharge in October 1987, Ms. Hong's immediate supervisor was Marina Barrientos. As one of her responsibilities, Ms. Barrientos conducted annual performance appraisals of Ms. Hong's work. The record shows that, prior to 1985, these reviews were generally favorable. Dr. Frederick Smith, Division Head of the Department of Clinical Pathology at Children's Memorial Hospital, supervised the Clinical Chemistry Laboratory, but did not participate in either annual evaluations of medical technologists or informal disciplinary matters.Beginning in early 1986, the hospital commenced an internal evaluation of its laboratory operations for the purpose of upgrading equipment and technology, and improving overall performance. In addition to installing more modern instrumentation, Dr. Smith implemented a computerized quality control system for use in specimen testing. All medical technologists received training in the new procedures and on the new instruments.In 1985, 1986, and 1987, Ms. Hong's annual performance evaluation scores steadily declined. Among other things, she was cited for excessive absenteeism, failure to perform assigned tasks in a timely manner, failure to identify instrument malfunctions during testing procedures, failure to report test results to her supervisors, failure to maintain laboratory inventory, and failure to follow the laboratory's quality control and management procedures. In addition, from February 1986 to July 1987, Ms. Hong was issued seven formal written disciplinary notices for deficiencies in her work and uncooperative behavior. Two of these reports resulted in probationary periods of two and three months; a third resulted in a two-day suspension. She also received informal counselling from her superiors, including additional training on the new quality control instruments.On March 5, 1987, Dr. Smith sent Ms. Hong a memorandum informing her of the two month probation mentioned above and explaining that unless her performance on the job improved to an acceptable level during that period she would be discharged. Seven months later, on October 20, after yet another formal disciplinary notice, Dr. Smith sent Ms. Hong a memorandum stating that her term of employment in the Clinical Chemistry Laboratory was at an end. The memo indicated that staff are obliged to conduct laboratory work reliably and quickly for the benefit of patients and that Ms. Hong's poor performance record over the previous year and a half was simply unsatisfactory. She was encouraged to seek other suitable positions within the hospital, and was advised of her right to file an internal grievance. She did file a grievance, and received a hearing before a committee composed of hospital management and staff. The committee affirmed Dr. Smith's decision.Ms. Hong then brought this suit in federal district court, averring that Children's Memorial Hospital had wrongfully discharged her from its employ because of her Korean ancestry, in violation of Title VII of the 1964 Civil Rights Act. The hospital filed an answer to the complaint and moved for summary judgment on the grounds that the plaintiff had failed to establish a prima facie case of discriminatory discharge or, in the alternative, assuming the existence of a prima facie case, had failed to produce sufficient evidence from which a jury could find that the hospital's stated reason for discharging her--inadequate job performance--was a pretext for unlawful discrimination. The district court granted the motion, concluding that the case was "too thin to permit a trier of fact to return a verdict for Hong" because she had produced "insufficient evidence to refute the claim that her work was not meeting her employer's reasonable expectations of job performance at the time she was fired and a fortiori to show that the stated reason [for discharge] is a pretext."On appeal, the plaintiff points to four actions by her superiors at Children's Memorial Hospital to substantiate her claim of intentional discrimination. First, she alleges that, after her discharge, her now deceased brother-in-law, who was then working part-time at the hospital, visited Dr. Smith. According to the plaintiff, Smith told her brother-in-law that Ms. Hong should "move back to Korea." Second, the plaintiff claims that her supervisor, Marina Barrientos, told her repeatedly at work to "learn to speak English," despite the absence of evidence that the plaintiff spoke anything other than English. This disparaging remark was usually made on occasions when Ms. Barrientos had made some mistake, and sometimes for no apparent reason. What's more, according to the plaintiff, Ms. Barrientos made the remark most often in 1987, the year in which the plaintiff received her lowest performance evaluation score, was subjected to the most disciplinary actions, and ultimately discharged.Third, the plaintiff alleges that certain of the disciplinary actions taken against her in 1987 near the time of her discharge evidence discriminatory treatment and present genuine issues of material fact precluding summary judgment. Specifically, she disputes the defendant's version of three instances of substandard work that, in addition to two others, resulted in the issuance of a formal disciplinary notice and a two-day suspension from work. Finally, the plaintiff claims that she was singled out for disciplinary action, and that non-Korean medical technologists with comparable annual evaluation scores were not discharged. This evidence of disparate treatment,1 the plaintiff submits, demonstrates that the hospital's stated reason for discharging her was pretextual.II.Because there appears to be some disagreement between the parties on the issue, we begin by setting forth the correct standard of review. We review de novo a district court's grant of summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure, examining the entire record in a light most favorable to the party opposing the motion to determine whether any genuine issues of material fact exist. McCoy v. WGN Continental Broadcasting Company, 957 F.2d 368, 370 (7th Cir.1992). Application of Rule 56 involves "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).2We recognize that summary judgment is often an inappropriate method of resolving Title VII claims in which the defendant's intent, as the plaintiff urges here, is the central issue. See Friedel v. City of Madison, 832 F.2d 965, 972 (7th Cir.1987); Powers v. Dole, 782 F.2d 689, 694 (7th Cir.1986). However, a plaintiff facing the prospect of summary adjudication cannot "sit back and simply poke holes in the moving party's summary judgment motion." Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). If the nonmovant bears the burden of proof on an issue, she may not rest on the pleadings; rather, she must affirmatively set forth specific facts showing that there is a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 322-26, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). See also Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 567 (7th Cir.1989).To ultimately prevail on a disparate treatment claim under Title VII, the plaintiff must prove that she was a victim of intentional discrimination. See Morgan v. Harris Trust and Savings Bank of Chicago, 867 F.2d 1023, 1026 (7th Cir.1989) (per curiam). The plaintiff can satisfy her burden of proof either through direct proof of discriminatory intent, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), or through the indirect, burden-shifting method of proof articulated in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). These two methods constitute distinct evidentiary paths available to an individual attempting to prove intentional discrimination. In this case, Ms. Hong relies on the indirect, burden-shifting method of proof.Under the McDonnell Douglas framework, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of employment discrimination. Id. at 802, 93 S.Ct. at 1824. Once established, the prima facie case creates a rebuttable presumption that the employer's actions, if unexplained, were the result of impermissible factors. Chesser v. State of Illinois, 895 F.2d 330, 333 n. 3 (7th Cir.1990). At this point, the defendant must explain its actions or lose, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981); the burden of production therefore shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for the plaintiff's treatment. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the defendant carries its burden, the presumption of discrimination drops from the case, United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983), and the plaintiff must then show, again by a preponderance of the evidence, that she is a victim of intentional discrimination, the defendant's stated reason for dismissal being nothing more than a mere pretext. McDonnell Douglas, 411 S.Ct. at 804, 93 S.Ct. at 1825. See also Villa v. City of Chicago, 924 F.2d 629, 631 (7th Cir.1991). At all times, of course, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains with the plaintiff. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.To establish a prima facie case of national origin discrimination, the plaintiff is required to show that (1) she is a member of a protected class, (2) she was doing her work well enough to meet her employer's legitimate expectations, (3) despite her performance, she was discharged, and (4) her employer sought a replacement for her. Villa, 924 F.2d at 631. Without a prima facie case, the plaintiff cannot withstand summary judgment. See Gilty v. Village of Oak Park, 919 F.2d 1247, 1250 (7th Cir.1990). In a recent case we observed:The initial elements of the prima facie case are relatively simple to prove. The elements and the subsequent "shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the 'plaintiff [has] his day in court despite the unavailability of direct evidence.' " Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 622, 83 L.Ed.2d 523 (1985) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.1979)). Thus where the nonmovant is unable to establish at least the minimal elements of the prima facie case under the McDonnell Douglas methodology, the entry of summary judgment is required. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552. It is axiomatic that there can be no genuine issues of material fact if the plaintiff is unable to establish a prima facie case "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2553.Randle, 876 F.2d at 568 (alteration in original).The district court ruled that the plaintiff had failed to show that she was meeting her employer's legitimate job expectations at the time she was fired and, as a result, could not make out a prima facie case of discrimination. We agree.As an element of her prima facie case, the plaintiff was required to show that her performance on the job was adequate. See Shager v. Upjohn Company, 913 F.2d at 400; Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 511 n. 4 (7th Cir.1986). She cannot satisfy this requirement by showing that her performance was adequate for some period of time during her employment at Children's Memorial Hospital, however. The critical issue is whether she was performing well in her job at the time of her termination. See Karazanos v. Navistar International Transportation Corporation, 948 F.2d 332, 336 (7th Cir.1991).In the Clinical Chemistry Laboratory, medical technologists receive annual written evaluations scored on a range from 100 points (quality and quantity of work is "marginal") to 400 points (quality and quantity of work is "consistently exceptional"). A score of 200 denotes competency, while a score of 300 "exceeds expectations." We accept the plaintiff's contention that her evaluations for the better part of her first seventeen years at the hospital were favorable. We also credit her assertion that her performance scores for 1981-1984 were consistently between "exceeds expectations" and "consistently exceptional."In 1985, the plaintiff received a total evaluation score of 230 and had no written disciplinary notices in her file. The following year she received a score of 225 and, in 1987, a score of 140. She offers the evaluations, particularly the last, as evidence of disparate treatment inasmuch as other, non-Korean medical technologists who received "similar scores" on their evaluations were not discharged. The plaintiff does not dispute that identical pre-printed appraisal forms are used to evaluate all medical technologists, nor does she contend that the criteria used in evaluations are unrelated to job performance or otherwise suspect. More importantly, she does not challenge Dr. Smith's testimony that the hospital considers an employee's disciplinary record as well as annual evaluation scores to measure job performance.3Against the record in this case, the plaintiff's bare assertion of disparate treatment is not persuasive. First, she has not presented sufficient evidence that her annual evaluation scores were comparable to those of other medical technologists who were not discharged by the hospital. Indeed, all of the non-Korean technologists to whom the plaintiff refers in her brief to this court had higher evaluation scores than she did in 1986 and 1987. The only technologist with an annual score comparatively close to the plaintiff's 1987 score of 140 was Iqbal Mohammed, who received a score of 185. The plaintiff points to this, in her words, "less than adequate" score, the two disciplinary notices issued to Ms. Mohammed that year, and the fact that Ms. Mohammed was not discharged as proof of disparate treatment.As a rule, this court will "not sit as a super-personnel department that reexamines an entity's business decisions" in cases where discrimination is alleged. Dale v. Chicago Tribune Company, 797 F.2d 458, 464 (7th Cir.1986), cert. denied,Try vLex for FREE for 3 days
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