CECILIA BRISCOE, Plaintiff, v. MALAYSIA AIRLINES, INC.,Defendant. No. 97-CV-3375

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

1998 U.S. Dist. LEXIS 13403

August 19, 1998, Decided
August 20, 1998, Docketed

DISPOSITION: [*1] Defendant Malaysia's motion for summary judgment [DOC # 7-1] granted. Any and all other motions pending moot.

COUNSEL: For CECILIA BRISCOE, plaintiff: Kimberly Joy Seymore, Law Offices of Kimberly J. Seymore, Chicago, IL.

For MALAYSIA AIRLINES, INC., defendant: David A. Senior, McBreen & Senior, Los Angeles, CA, Richard P. Steinken, Jenner & Block, Chicago, IL.

JUDGES: David H. Coar, United States District Judge.

OPINION BY: David H. Coar

OPINION: MEMORANDUM OPINION AND ORDER

Defendant Malaysia Airlines, Inc. ("Malaysia") has moved for summary judgment on plaintiff Cecilia Briscoe's ("Briscoe") complaint alleging racial discrimination in violation of 42 U.S.C. § 2000e et. seq. ("Title VII"). For the following reasons, the motion is GRANTED. This case is CLOSED.

I. Facts

Briscoe, an African-American woman, was hired in 1991 as a Sales Representative in defendant Malaysia's Chicago office. (12(M) Stmt. P 1.) Sales Manager Kevin Breen ("Breen") was her immediate supervisor. (12(M) Stmt. P 2.) Throughout Briscoe's employment with Malaysia, Uta Staley ("Staley"), a Caucasian woman, was the administrative secretary for both Breen and the rest of the office. (12(M) Stmt. P 4; Def.'s Ex. [*2] A (Briscoe Dep.) at 56.) On November 13, 1996, Briscoe and Staley were involved in a verbal and physical altercation in the office during work hours which was witnessed by three other Malaysia employees and an outside real estate representative who was in the office. (12(M) Stmt. PP 7, 8.) Immediately prior to the altercation, Briscoe had complained to Breen that Staley was not doing Briscoe's expense reports and that Staley was reading the newspaper rather than attending to Staley's job responsibilities. (12(M) Stmt. P 9.) When Briscoe left Breen's office, she found her expense reports on the credenza where she had left them the night before. (12(M) Stmt. P 10.) Briscoe picked up the expenses and told Staley not to worry about them and that Briscoe would do them herself. (12(M) Stmt. P 10.) Staley responded that Briscoe should not tell her what to do. (12(M) Stmt. P 11.) Briscoe and Staley argued, with Staley speaking loudly, Briscoe asking Staley to lower her voice, and Staley refusing to do so. (12(M) Stmt. PP 13, 14.) Briscoe asked Staley why she was yelling and walked over to the door of their office to close it. (12(M) Stmt. PP 15, 16.) Staley ran over to Briscoe, grabbed Briscoe's [*3] hands off of the door, pushed Briscoe into a bookshelf, and yelled that she (Staley) did not want to be in the room with Briscoe. (12(M) Stmt. P 17.) A co-worker came into the room and physically removed Staley to another area of the office. (12(M) Stmt. P 18.) During the incident, Staley did not make any racially derogatory comments. (12(M) Stmt. P 19.) Briscoe testified that Staley never used profane language or racially derogatory language toward Briscoe. (Def.'s Ex. A (Briscoe Dep.) at 79.) Malaysia terminated both Briscoe's and Staley's employment on November 27, 1996. (12(M) Stmt. P 21.)

Throughout her employment, Briscoe never reported Staley's alleged racial harassment in writing to anyone at Malaysia, despite explicit terms and conditions in the Employee Handbook outlining procedures to follow when being harassed. (12(M) Stmt. P 26; Def.'s Ex. D (Pl.'s Resp. to Def.'s Interrogs.) P 3; Def.'s Ex. A (Briscoe Dep.) at 40-41.) After the altercation, Briscoe produced a report for Breen at his request detailing her version of the events, in which she did not allege racial discrimination. (Def.'s Ex. A (Briscoe Dep.) at 64-65; Pl.'s Ex. C.) Malaysia's Employee Handbook provides[*4] that actual or threatened violence, engaging in conduct that creates a safety hazard, and behavior offensive to other persons are all examples of impermissible conduct. (12(M) Stmt. P 27.)

II. Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986);[*5] Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

If the movant meets this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Id. at 322, 106 S. Ct. at 2552-53. A scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250, 106 S. Ct. at 2511.

III. Discussion

In order to prevail on a claim of racial discrimination in violation of Title VII, a plaintiff may prove discrimination in either of two ways: through direct proof of discrimination or through the indirect, burden shifting method of proof established in McDonnell Douglas Corporation v. Green. 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).[*6] Under the direct method of proving intentional discrimination a plaintiff may introduce direct or circumstantial evidence of discrimination. See Kormoczy v. Secretary, HUD, 53 F.3d 821, 823 (7th Cir. 1995) (citing Troupe v. May Dept. Stores Co., 20 F.3d 734 (7th Cir. 1994)). Direct evidence is that which can be interpreted as an acknowledgment of the defendant's discriminatory intent. Id. Circumstantial evidence is evidence that can provide a basis for drawing an inference of intentional discrimination. Id. One type of circumstantial evidence of intentional discrimination "consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn." Troupe, 20 F.3d at 736 (citations omitted).

Briscoe has presented no direct evidence of discrimination; therefore, this court considers her claim under the three step McDonnell Douglas analysis. Rabinovitz v. Pena, 89 F.3d 482, 486 (7th Cir. 1996). First, the plaintiff has the burden to establish[*7] a prima facie case of discrimination (step one). If the plaintiff is able to state a prima facie case, a presumption of discrimination arises and the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action (step two). St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506- 07, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). If the employer offers a legitimate, nondiscriminatory reason, the presumption of discrimination dissolves and the burden shifts back to the plaintiff to prove by a preponderance of evidence that the employer's proffered reason was a pretext (step three). Fuka v. Thomson Consumer Electronics, 82 F.3d 1397 (7th Cir. 1996); Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996), cert. denied, 519 U.S. 866, 136 L. Ed. 2d 116, 117 S. Ct. 175 (1996); Oxman v. WLS- TV, 846 F.2d 448, 453 (7th Cir. 1988). Although the burden of production shifts between plaintiff and defendant under this approach, the plaintiff at all times retains the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against him. [*8] " Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995) (citing St. Mary's Honor Ctr., 509 U.S. at 507); accord Mills v. First Fed. Sav. & Loan Ass'n of Belvidere, 83 F.3d 833, 843 (7th Cir. 1996). Briscoe's case fails at each step of the test.

Generally, to establish a prima facie case of discrimination, a plaintiff must prove that (1) she was a member of the protected class; (2) she was doing her job well enough to meet her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside her protected class were treated more favorably. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994). See also McDonnell Douglas, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. Here, Briscoe has not alleged facts which would establish a prima facie case of discrimination. While it is undisputed that Briscoe, as an African-American, is a member of a protected class, that she was generally meeting Malaysia's expectations, and that she suffered an adverse employment action (i.e., termination), Briscoe fails to establish a prima facie case because[*9] she has not alleged any facts which show that similarly situated employees outside her protected class were treated more favorably. The only person who Briscoe alleges was similarly situated is Staley, who also violated company policy by participating in the fight, and it is undisputed that Staley was fired the same day as was Briscoe. Indeed, in her deposition, Briscoe stated that she considered Breen to be her "ally." (Briscoe Dep. at 78.)

Even if Briscoe could establish a prima facie case of discrimination, her claim would still fail because Malaysia has articulated a legitimate, nondiscriminatory reason for its action. Once a plaintiff establishes a prima facie case, an employer is still entitled to summary judgment if the employer offers a legitimate, nondiscriminatory reason for the adverse employment action, unless the plaintiff can establish that the reason proffered is pretextual. In this case, the parties do not dispute that Briscoe and Staley were involved in a verbal and physical altercation at work in violation of Malaysia's company policy, which was clearly outlined in the employee manual. Malaysia contends that this was the reason for firing both Briscoe and Staley. [*10] Because Malaysia has presented a legitimate and nondiscriminatory reason for firing Briscoe, the burden shifts back to Briscoe to prove by a preponderance of the evidence that Malaysia's proffered reason was a pretext.

"In the context of Title VII...'pretext' is more than mere mistake; it means a lie, specifically a phony reason for some action. To establish pretext, a plaintiff must specifically refute the facts which allegedly support the employer's proffered reasons." Rampich v. Zema Systems Corp., 1997 U.S. Dist. LEXIS 7470, 1997 WL 285733 at *7 (N.D. Ill. May 22, 1997). A plaintiff may challenge the credibility of the employer's explanation by showing either that (1) the proffered reasons are factually baseless; (2) the proffered reasons were not the actual motivation for the adverse employment action; or (3) the proffered reasons were insufficient to motivate that adverse employment action. Wolf, 77 F.3d at 919. Briscoe has not alleged any facts which if true would tend to show that Malaysia's explanation for firing her was pretextual. First, neither party contests Malaysia's account of the fight between Briscoe and Staley. Moreover, Briscoe[*11] has not alleged any actions or events demonstrating that Malaysia had some other motivation for firing her. Finally, Briscoe does not claim that her violation of company policy was an insufficient reason for Malaysia's firing her. In order to successfully challenge an employer's explanation for the allegedly discriminatory adverse employment action, the plaintiff must show that her employer did not believe the reasons it gave for taking that action, i.e., that the employer is not sincere. See Wolf, 77 F.3d at 919, Collier, 66 F.3d 886, 892 (7th Cir. 1995). Briscoe simply has not alleged anything which would show that Malaysia fired her for any reason other than her part in the altercation. Accordingly, Malaysia's motion for summary judgment is GRANTED.

III. Conclusion

Malaysia's motion for summary judgment is GRANTED. This case is CLOSED.

Enter:

David H. Coar, United States District Judge

Dated: August 19, 1998

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that for[*12] the reasons set forth in the attached Memorandum Opinion and Order, defendant Malaysia's motion for summary judgment is granted.

Date: 8/19/1998