Pantoja v. American Ntn Bearing Mfg. Corp.

• Citation: 495 F.3d 840
• Decision Date: 06 August 2007
• Docket Number: No. 06-1252.,06-1252.
• Parties: Juan PANTOJA, Plaintiff-Appellant, v. AMERICAN NTN BEARING MANUFACTURING CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

495 F.3d 840

Juan PANTOJA, Plaintiff-Appellant, v. AMERICAN NTN BEARING MANUFACTURING CORPORATION, Defendant-Appellee.

No. 06-1252.

United States Court of Appeals, Seventh Circuit.

Argued January 3, 2007.

Decided August 6, 2007.

Stephen G. Seliger (argued), Seliger & Elkin, Chicago, IL, for Plaintiff-Appellant.

Anthony J. Nasharr, III, John J. Curry, Jr. (argued), Polsinelli, Shalton, Flanigan & Suelthaus, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

After working for nine years for American NTN Bearing Manufacturing Corporation ("NTN"), Juan Pantoja was fired within days of his managers' learning that he had complained about discrimination to the EEOC. Pantoja had not been a perfect employee during the last year and a half of his tenure there; to the contrary, he had been disciplined on a number of occasions. Around the same time, however, he allegedly began complaining to management that his supervisors were mistreating him because he is Hispanic.

Not long after his termination, Pantoja brought this suit against NTN under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., alleging discrimination, harassment, and retaliation based on his race and national origin. The district court granted NTN's motion for summary judgment on all of the claims. Reviewing Pantoja's claims de novo, we too conclude that his discrimination and harassment claims cannot go forward. Pantoja has, however, identified material issues of fact with respect to his retaliation claims. We therefore affirm the district court's grant of summary judgment to NTN on the discrimination and harassment claims but remand the retaliation claims for further proceedings.

I

Pantoja began his employment with NTN in 1993 as a machine operator. In 1997, he became a mechanic in the maintenance department, where he worked under the supervision of Robert Cloyd and Joe Maney. Eventually, Pantoja was promoted from the entry-level mechanic's position (M-0) to a higher one (M-3). James Cusimano, a white male, had moved up the ranks more quickly. NTN hired Cusimano as a janitor in the maintenance department in 1998, but by the end of that year Cloyd and Maney promoted him to the M-0 entry-level mechanic's position. In 2001, Cusimano was promoted from the M-2 level to the M-4 level, thereby skipping over the M-3 rank where Pantoja remained.

At some point around early 2001, Pantoja began complaining to upper level management officials, including NTN Human Resources Director Stuart Moir. The specifics of these complaints are in dispute. Pantoja contends that his complaints included allegations that he was being treated badly, in comparison to Cusimano, because of his race and national origin. NTN characterizes the complaints as expressions of frustration over Cusimano's promotion, devoid of any allegations of unlawful discrimination. NTN admits, however, that "Maney confirms that he was aware that Pantoja had complained to Moir in 2001 about Cusimano's rapid advancement." Pantoja contends that there were meetings among Cloyd, Maney, and Moir to discuss his concerns, but that those three reached no decisions.

In February 2002, Pantoja, still at the M-3 level, sought a promotion to the M-4 level. Cloyd prepared his employment review. This was Pantoja's first formal evaluation after his complaints to HR. Although Pantoja had received an "exceeds expectations" rating in his previous formal evaluation, on this evaluation he received the lower "meets expectations" rating. NTN contends that Pantoja was performing adequately at the M-3 level, but was not meeting the higher expectations in place for the M-4 level. Part of its evaluation was based on a September 2001 skill check that Maney described as "very subjective."

In the wake of his unsuccessful bid for a promotion, Pantoja complained again to HR. In March or early April 2002, Assistant HR Director Darlene Myles met with Pantoja. Pantoja told Myles that he believed that his supervisors were discriminating against him. He recounted his belief that the company had unfairly promoted Cusimano ahead of him, and that Cloyd and Maney were giving Cusimano special treatment, including better assignments. He was also concerned that there might be disciplinary warnings in his file that he had never seen, because Cloyd had threatened to write him up. Myles passed along these concerns to Peter Datka (who had replaced Moir as HR Director) and reviewed Pantoja's file. As Pantoja had feared, she found a notice of a verbal warning that had not been signed by management, contrary to NTN's policy.

Pantoja's record showed two of these procedurally irregular warnings from April 2001, one for creating an inaccurate record about maintenance of a pump and the other for failing properly to maintain a grinding system. A year later, in April 2002, more warnings appear, but once again they were incomplete and Pantoja was not given proper notice of them. This occurred on April 17, April 23, and May 14, 2002. On June 3, 2002, Cloyd gave Pantoja his first formal warning that HR had approved. It accused him of faulty work on April 23 that had caused a spill. (Pantoja asserts that the delay in processing this warning violated company policy.) In June 2002, Myles and Pantoja had another meeting, at which Pantoja complained of continued harassment by Cloyd. Myles promised to talk to Datka. She claims that she did so, but Datka denies that any such conversation took place, either about Pantoja or about the general treatment of Hispanic employees at NTN. In August 2002, Pantoja received another warning from Cloyd for causing a spill, but he protested. Pantoja claims that the latter warning, on which he wrote that he was being singled out and "Employee refuses to sign," has not been produced in this case, but has been replaced with a phony document in the record.

On Saturday, August 10, 2002, Pantoja was assigned to work for four hours. He arrived at work at 5:00 am. At approximately 7:00 am he received a page from another employee, Shannon Garcia, who was nearby with a flat tire and could not get to work. Pantoja tried to reach someone in the plant to let them know about the situation, but he could not. He left NTN anyway without punching out, drove to the place where Garcia was waiting, attempted to fix her car but could not, and then drove Garcia back to NTN. He was gone for approximately 30 minutes. Later that day, Garcia paged Pantoja again, because she needed to use the telephone in a locked office. He met her at that office and let her in. He punched out of work at 9:00 am. On Monday, August 12, Maney questioned Pantoja about the incident. Later, Maney spoke to Datka about whether the incident warranted terminating Pantoja's employment.

On August 29, Cloyd wrote in his diary that Myles had told him about Pantoja's EEOC complaint. That same day, Datka told Maney that the company was going to fire Pantoja because he had left the company's premises without permission on August 10. In that meeting, Datka and Maney discussed how to explain to Pantoja that he was being fired for the specific reason of violating company policy by leaving the premises without permission on August 10. Then Datka and Maney met with Pantoja on August 30. Contrary to the script, however, Datka did not focus on the August 10 incident. Instead, according to Maney, Datka told Pantoja he was being fired for "a number of failures" and his performance generally. This was the first in a succession of shifting accounts from NTN. During the EEOC investigation, NTN stated that Pantoja was fired for "repeated absenteeism." In the course of the present litigation, NTN stated that Pantoja was fired "for numerous reasons, including, but not limited to, unsatisfactory work record, job negligence[,] endangering persons and/or property, absence from work position without leave or authorization, dishonesty in representations to supervisors, and insubordination." Later, NTN stated that Pantoja was discharged because of his "unauthorized and/or unreported absence from his work station on August 10, 2002" and his "[d]ishonesty in statements made by him ... in describing his absence from his workstation during his shift on 8/10/2002." Yet during his deposition Datka said that Pantoja was not fired for dishonesty, but rather for leaving work without permission on August 10, 2002.

II

Pantoja alleges that illegal discrimination on the basis of race and national origin lay behind NTN's refusal to promote him, its disciplinary actions, and its ultimate decision to fire him. Pantoja is proceeding under the so-called indirect method of proving employment discrimination. This compels us to begin with the barnacle-laden burden-shifting inquiry inaugurated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

It is worth noting, in this connection, that there has been a subtle evolution in the way that courts describe the McDonnell Douglas requirements for a prima facie case of discrimination, at least when the adverse action at issue is the employee's termination. The district court described the required elements as follows: "(1) that [plaintiff] is a member of a protected class; (2) that he was meeting his employer's legitimate performance expectations; (3) that he suffered an adverse employment action; and (4) that he was treated less favorably than similarly situated individuals who are not members of his protected class." If we trace back the source of that particular formulation, we come to our decision in Coco v. Elmwood Care, Inc., 128 F.3d 1177 (7th Cir.1997). Coco involved employment termination allegedly based on the plaintiff's age. It did not, in so many words, require the plaintiff to point to someone else who was "similarly situated." Rather, Coco stated that a person complaining of age discrimination had to show, among...