Arthur Oates v. Discovery Zone, a Delaware Corporation

DIANE P. WOOD, Circuit Judge,

concurring in part and dissenting in part.

Arthur Oates raised claims under both federal civil rights laws and state law in connection with his discharge from Discovery Zone. Although I agree with the majority that his claims under Title VII and 42 U.S.C. § 1981 were correctly dismissed on summary judgment, I dissent from its decision to affirm the dismissal of Oates’ claims under state law.

As the majority opinion spells out in greater detail, Oates was employed by Discovery Zone as a Technical Support Representative. He worked at the Rosemont, Illinois, technical center, where he was the only African-American on the staff. The undisputed facts show that Oates had a serious problem with absenteeism, which his supervisor Bonnie Christenson documented in a memorandum of January 14, 1994. It is also undisputed that Oates was absent from work on at least eight occasions between January 14, 1994, and April 21,1994.

Mark McDermott began his job as Manager of Corporate Information Services for Discovery Zone on February 28, 1994. It was not until early April 1994 that he started to oversee the Rosemont support center. This oversight meant that he was Christenson’s supervisor. Shortly after he assumed his new responsibilities over Rosemont, he met with Christenson to discuss her personnel. Christenson immediately alerted him to Oates’ absenteeism and told him that she and McDermott’s predecessor were “on the path” to firing Oates.

Around the same time, Christenson placed the infamous “monkey picture” on the bulletin board at the Rosemont office. Somehow, five other duplicates of the picture also appeared around the office. At some time pri- or to April 18, Oates’ first name (Art) was written above one of the monkeys. Oates was deeply offended by this display and promptly complained to Christenson. Instead of taking his complaint seriously, she brushed it off and told Oates that he was being “over-sensitive.” The picture remained on public display, complete with Oates’ name, for more than a week.

On April 21, Oates again failed to show up at work on time. To make matters worse, he did not comply with Discovery Zone’s express policies about reporting tardiness or *1176absence to his supervisor. Instead, he just telephoned Christenson’s office number and left a voice mail message indicating that he would be late. This meant that the support center was left completely unattended until McDermott received a complaint from a customer and paged Christenson, who was by then on her way to the office. Oates does not dispute that he was late, that he failed to contact Christenson by pager or at home, or that the center was unattended by support personnel. Based on his knowledge of Oates’ earlier problems, which he gained from Christenson, McDermott claimed that he decided to terminate Oates that day. With the approval of Discovery Zone’s Vice President of Human Resources, both McDermott and Christenson met with Oates in Christenson’s office on April 22, 1994, and informed him that he was being discharged.

Oates’ complaint to the EEOC detailed the events surrounding the offensive “monkey picture” incident and Christenson’s refusal to take any action about it. The same is true of his complaint in the district court. As we have repeatedly held, it is enough both for EEOC charges (see Babrocky v. Jewel Food Co. & Retail Meatcutters, 773 F.2d 857, 864-65 (7th Cir.1985); Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 169 (7th Cir.1976) (ere band)) and for federal court complaints (see Sledd v. Linsday, 102 F.3d 282, 288-89 (7th Cir.1996); Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d 959, 961 (7th Cir.1996)) to set forth the facts that will form a basis for relief. Plaintiffs are not under any obligation to plead legal theories, which means that the absence of the phrase “racial harassment” in Oates’ complaint is of no legal significance.

Rather than review the facts Oates alleges are disputed in isolation from the claims he has raised, I consider them only insofar as they bear on the correctness of the district court’s decision to grant summary judgment on each count. Beginning with his Title VII claims, Oates has alleged both that he was discharged for racially discriminatory reasons and that he was forced to endure a racially harassing environment. In order to prove that his discharge violated the statute, he either had to present direct evidence that it was racially motivated or he had to satisfy the well-worn indirect method introduced by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Oates claims that he wins either way. It was Christenson’s input that caused McDermott to fire him, according to Oates, and the “monkey picture” evidence showed that Christenson herself was biased against Oates because of his race. Alternatively, he claims that he meets all four of the requirements for a McDonnell Douglas prima facie case: (1) he is a member of a protected class, (2) he was performing his job satisfactorily, (3) he was fired, and (4) Discovery Zone did not treat similarly situated employees in the same adverse way.

I do not agree with the majority that the undisputed evidence shows that McDermott unilaterally and independently decided to fire Oates. A jury could believe that McDermott, who had only been working with the Rose-mont technical center since early April 1994, could not have made such a decision without relying heavily on Christenson’s recommendation and the information that she furnished to him. This court has held that such a link is enough to require consideration of the recommender’s role in the employment decision. Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1459 (7th Cir.1994) (summary judgment improper “where the plaintiff can show that an employee with discriminatory animus provided factual information that may have affected the adverse employment action”); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990). Unfortunately for Oates, however, bringing Christenson into the mix hurts more than it helps. Oates cannot contest the fact that he had a serious absenteeism problem, which he had been strongly advised to remedy. (It is immaterial whether we call the January 14 memorandum a “reprimand” or something else; the message is clear that Oates had to shape up or suffer the consequences.) Whatever Christenson may have told McDermott, and whatever her motivations behind providing that information, it is clear that she advised McDermott that Oates was skating on thin ice because of his unexcused, unnotified absences from the workplace. McDermott himself testified that this absenteeism was the sole reason for his *?decision. Under the circumstances, I would find only that Christenson’s alleged racially discriminatory attitude is too remote from the final decision to terminate Oates’ employment to satisfy the standards we have established for proof of discrimination through “direct” evidence. See Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir.1994). Oates must therefore rely on McDonnell Douglas to save his discriminatory discharge claim.

Oates, however, runs into the same problem with the McDonnell Douglas approach. It is not necessary for us to show that he fails on all four parts of the test, because as the plaintiff he must come forward with evidence to establish all four parts before the burden-shifting process moves forward. It is clear that Oates did not produce enough evidence to show that he was performing his job satisfactorily. That is enough in itself to defeat his prima facie ease and to justify summary judgment for Discovery Zone. See, for example, DeLuca v. Winer Industries, Inc., 53 F.3d 793, 798 (7th Cir.1995); Villa v. City of Chicago, 924 F.2d 629, 631 (7th Cir.1991). For the record, I disagree with the majority that Oates failed to show that Discovery Zone treated similarly situated employees more favorably than Oates. Oates, after all, was the only African-American at the Rosemont facility, and there is no evidence that white employees were presented with materials (if there are such things) that they would have found as racially offensive as an African-American would reasonably find the “monkey picture.” This, however, makes no difference to the outcome, given Oates’ failure to establish the element requiring satisfactory performance.

As with the discharge claim, I would find that Oates adequately pleaded a racial harassment claim. The fact that litigants do not have an obligation to plead legal theories does not, however, mean that they are exempt throughout the litigation from informing their opponent and the district court about the legal theories on which they rely. The normal point at which this obligation arises is when the opposing party files a motion for summary judgment. Such a motion not only asserts that there are no genuine issues of material fact, but just as importantly it argues that the moving party is entitled to judgment as a matter of law. We have held, therefore, that the failure to articulate legal theories at this stage constitutes waiver, even if those theories were viable at the pleadings stage. See Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 588 (7th Cir.1992); Geva v. Leo Burnett Co., Inc., 931 F.2d 1220, 1225 (7th Cir.1991).

I do not agree that Oates failed to comply with his obligation under Local Rule 12(N) to give record cites to show support for his argument that he was racially harassed. His response made it clear that the “monkey picture” incident had occurred, that he had complained to Christenson about the poster, and that she compounded the initial injury by refusing to take immediate action to remove it. Nevertheless, I do agree that Oates raised the legal theory of racial harassment too late in the day, and for that reason he waived the right to rely on it in the district court and here. It was not until after the district court entered summary judgment for Discovery Zone that Oates, in a motion to reconsider, first tried to raise this claim. Had it been properly before the district court, I agree with the amicus brief filed by the Equal Employment Opportunity Commission that it would not have been a proper candidate for summary judgment. On this record, I cannot fault the district court for failing to consider a legal theory that was not presented to it at the proper time. Oates should have known, when Discovery Zone filed its motion for summary judgment on the entire case, that the moment had arrived to put his cards on the table. He did not, and it is too late now to revive a claim based on racial harassment.

Oates has two remaining federal claims: his claim under 42 U.S.C. § 1981 for discriminatory discharge and his claim under Title VII for retaliatory discharge. The standards for proving a § 1981 claim are, in this context, basically the same as the standards governing his Title VII discriminatory discharge claim. See Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 568 (7th Cir.1989). I agree with the majority that Oates’ failure to bring forth enough evidence *1178to show either direct or indirect discrimination in his discharge is dispositive for the § 1981 claim as well. I also agree with the majority’s ultimate conclusion — though not its reasoning — that Oates’ retaliation claim fails because he did not show a genuine issue of fact on whether there was a causal connection between any protected expression in which he engaged and his adverse employment action. I assume that the protected expression is Oates’ complaint to Christenson about the poster, as this would amount to opposition of a practice (creating a racially hostile environment) that is prohibited by Title VII.

The majority asks too narrow a question when it notes that there is no evidence that “Christenson relayed any negative information to McDermott about Oates’ performance between April 18,1994 — the day Oates allegedly complained to Christenson about the ‘monkey picture’ — and the point at which McDermott decided to discharge Oates on April 21, 1994.” Oates’ theory of the case is that Christenson was a racially biased supervisor who was trying to get rid of him. The principal evidence he offers for that contention is her reaction to the “monkey picture.” That does not mean, however, that he is arguing that she woke up on the morning of April 18 and suddenly developed racist inch-nations. Any input at all that she furnished to McDermott, under Oates’ theory, would have been tainted. Here again, however, Oates cannot dispute the fact that most of Christenson’s input related to the objectively verifiable and uncontested fact that he was absent a great deal of the time. It is also clear that the decision to fire him was certainly not Christenson’s alone to make; at best, she provided the background information on which McDermott (and perhaps the Human Resources Vice President, who also signed off on the termination) relied. As before, the chain of causation between Oates’ complaint to Christenson and Discovery Zone’s ultimate decision to fire him is too attenuated to satisfy the prima facie case of retaliation. Furthermore, even if we found the prima facie case satisfied, the same evidence about Oates’ absenteeism provides Discovery Zone with an unassailable legitimate, nonpretextual reason for taking the action it did.

The final point on which I disagree with the majority relates to its handling of Oates’ state law claim for intentional infliction of emotional distress. As it acknowledges (opinion at n. 12), the general rule is that when all federal claims are dismissed before trial, the district court should relinquish its jurisdiction over any supplemental state claims rather than resolving them on the merits. See Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir.1997); Boyce v. Fernandes, 77 F.3d 946, 951 (7th Cir.1996). Oates’ failure to address this in his appellate brief is not dispositive in my view, because, even if not a strictly jurisdictional issue for purposes of 28 U.S.C. § 1367, it is a matter that relates closely to the allocation of jurisdiction between the federal and the state court. The majority concedes that Illinois law is not clear on the question whether the Illinois Worker’s Compensation Act, 820 ILCS 305/1 et seq., does or does not preclude a claim for intentional infliction of emotional distress. For this reason, I think it is especially appropriate for this court to follow the general rule and to order dismissal of the supplemental claim without prejudice. Furthermore, the majority cannot resolve the claim even under its own assumptions without drawing a conclusion about exactly how offensive the poster was, what Christenson’s motivations were, and how Oates should have responded. These are all jury issues (based on this record) which should not be resolved adversely to Oates on summary judgment.

I would therefore affirm the district court’s decision granting summary judgment to Discovery Zone on Oates’ claims arising under Title VII and 42 U.S.C. § 1981, and I would reverse and remand its decision on the state law claim for intentional infliction of emotional distress, with instructions to dismiss that claim without prejudice.