Morgan v. Harris Trust and Sav. Bank of Chicago

• Decision Date: 13 December 1988
• Docket Number: No. 87-2320,87-2320
• Citation: 867 F.2d 1023
• Parties: 49 Fair Empl.Prac.Cas. 57, 49 Empl. Prac. Dec. P 38,680, 4 Indiv.Empl.Rts.Cas. 156 Eurid MORGAN, Plaintiff-Appellant, v. HARRIS TRUST AND SAVINGS BANK of CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1023

867 F.2d 1023

49 Fair Empl.Prac.Cas. 57, 49 Empl. Prac.

Dec. P 38,680,

4 Indiv.Empl.Rts.Cas. 156

Eurid MORGAN, Plaintiff-Appellant, v. HARRIS TRUST AND SAVINGS BANK of CHICAGO, Defendant-Appellee.

No. 87-2320.

United States Court of Appeals, Seventh Circuit.

Submitted Dec. 13, 1988. ^*

Decided Feb. 6, 1989.

Chanon Williams, Chicago, Ill., for plaintiff-appellant.

Bruce R. Alper, Vedder Price Kaufman & Kammholz, Chicago, Ill., for defendant-appellee.

Before CUDAHY, FLAUM and KANNE, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Eurid Morgan alleged that he was involuntarily terminated from defendant-appellee Harris Trust and Savings Bank of Chicago's (Harris) employ in contravention of his rights under Title VII and his contractual rights as created by Harris' personnel manual. The district court granted summary judgment for Harris. We affirm.

I. Facts

Morgan, a black man, was employed by Harris from 1968 until March 1983. In August 1982, $17,088 was discovered missing from the currency unit where Morgan was then working as an operations officer. In October 1982, an investigation was conducted where all 25 employees in the currency unit's cash processing section were given polygraph tests; Morgan failed the test twice. ¹ He was fired on March 17, 1983.

Harris used polygraph testing only after other attempts to stop unexplained losses at the bank had failed. Harris' policy was that any employee failing the exam twice was to be discharged. Of 25 employees tested, five failed the test twice. All five were discharged and all five were black. Two of the five admitted stealing from the bank.

Morgan alleged that he was fired because he was black (disparate treatment), and that Harris' polygraph testing procedure had a disproportionate impact on blacks (disparate impact). He also alleged that Harris' Personnel Policies and Procedures manual created contractual rights which Harris breached when it discharged him contrary to its manual's stated termination procedure. Finally, he alleged his termination was against Illinois public policy under the Illinois Constitution and Illinois Human Rights Act.

Harris answered the Title VII claims and moved for summary judgment on the remaining two claims, contending that its personnel manual created no contractual rights and explicitly provided for the right to terminate employees "at-will." Harris also contended that no violation of Illinois public policy had occurred. On May 15, 1986, the court granted Harris' summary judgment motion. ² Harris then moved for summary judgment on Morgan's Title VII claims, contending that Morgan failed to establish a prima facie case under either disparate treatment or disparate impact theory. This second summary judgment motion was granted on April 14, 1987.

Morgan subsequently moved the district court to reconsider its two orders regarding Morgan's Title VII and breach of implied contract claims. After reconsideration, these claims were again denied on July 20, 1987. Morgan now appeals the final decisions of the district court, contending that summary judgment was improper when genuine issues of material fact existed as to both his Title VII and breach of contract claims.

II. The District Court Properly Granted Summary Judgment on Plaintiff's Disparate Treatment Claim

A motion for summary judgment should only be granted when no genuine issue of material fact exists. Fed.R.Civ.P. 56(e). In reviewing the denial of such a motion, this court must view the record and draw inferences from it in the light most favorable to the party opposing the motion. Beard v. Whitley, 840 F.2d 405, 409-10 (7th Cir.1988) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); Illinois v. Bowen, 808 F.2d 571, 574 (7th Cir.1986). However, when a party bears the burden of proof on an issue, that party may not simply rest on its pleadings, but must affirmatively demonstrate with specific factual allegations that a genuine issue of material fact exists and requires trial. Beard, 840 F.2d at 410 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When a rational trier of fact could not find for the nonmoving party based on the record as a whole, there is no trial issue. Beard, 840 F.2d at 410 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Summary judgment will not be defeated simply because issues of motive or intent are involved, and is proper when the plaintiff fails to indicate any motive or intent to support plaintiff's position. Id. (citing Powers v. Dole, 782 F.2d 689, 694 (7th Cir.1986)); Corrugated Paper Prods., Inc. v. Longview Fibre Co., 868 F.2d 908, 914, (7th Cir. 1989); Mason v. Continental Illinois National Bank, 704 F.2d 361, 366 (7th Cir.1983).

In reviewing a district court's grant of summary judgment, we must also be mindful of the burdens of proof imposed on parties to a Title VII disparate treatment claim. Beard, 840 F.2d at 409-10. For any Title VII case alleging racially motivated termination, plaintiff must show he or she was treated less favorably than similarly situated employees and that defendant's intent was discriminatory. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Texas v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). A prima facie case is established when plaintiff produces sufficient evidence of disparate treatment so that a causal link between plaintiff's race and plaintiff's discharge can be inferred. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Such a link, however, merely creates a presumption which defendant may rebut by articulating a legitimate nondiscriminatory reason for plaintiff's discharge. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. The burden then returns to plaintiff to show that defendant's reason for termination was only pretextual, and the ultimate burden of proving intentional discrimination stays with the plaintiff. Burdine, 450 U.S. at 253-55, 101 S.Ct. at 1093-95; McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25.

We agree with the district court that Morgan failed to establish even a prima facie case of discrimination. There was no showing that he was treated differently on account of his race, that the procedure for selecting employees to be polygraphed was improper, or that any employee who failed the exam twice was not also discharged. Morgan's entire cash processing section was polygraphed, and while some employees were exempted, they were exempted for non-discriminatory reasons, see section III, infra. Nor does Morgan allege that these reasons were pretextual. To the contrary, Morgan's own deposition testimony admits his belief that the selection process was neither racially biased nor motivated.

As recently stated by the United States Supreme Court, "[t]he offense alleged in a disparate-treatment challenge focuses exclusively on the intent of the employer." Watson v. Fort Worth Bank and Trust, --- U.S. ----, 108 S.Ct. 2777, 2793, 101 L.Ed.2d 827 (1988) (Blackmun, J., concurring) (citing see Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977) ("proof of discriminatory motive is critical")). Morgan has hardly alleged such a motive. Furthermore, as this court recently noted, when a party's own admissions combined with other telling evidence create no genuine issue of fact, summary judgment is appropriate, even when motive is at issue and all reasonable inferences are drawn in the nonmovant's favor. Friedel v. City of Madison, 832 F.2d 965 (7th Cir.1987).

III. The District Court Properly Granted Summary Judgment on Plaintiff's Disparate Impact Claim

As distinguished from disparate treatment analysis, "the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Watson, 108 S.Ct. at 2785; Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971) (disparate impact analysis addresses policies which are "fair in form, but discriminatory in operation"). A prima facie case of disparate impact is established by showing through significant statistical disparity that a facially neutral employment practice has a discriminatory impact on a protected class. Watson, 108 S.Ct. at 2793 (Blackmun, J., concurring); Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982); Shidaker v. Tisch, 833 F.2d 627, 630-31 (7th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 2900, 101 L.Ed.2d 933 (1988). The burden then shifts to the employer to show that the employment practice bears a manifest relationship to the employment in question. Watson, 108 S.Ct. at 2790 (O'Connor, plurality opinion); Griggs, 401 U.S. at 432, 91 S.Ct. at 854. Whether this burden is merely one of production or one of ultimate proof, however, is less clearly settled. ³ Plaintiff may, of course, still prevail by showing that defendant's business necessity claim is pretextual. Teal, 457 U.S. at 447, 102 S.Ct. at 2530-31 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975)); Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 (1977).

In an attempt to establish his prima facie case, Morgan offered the following evidence: of 25 employees taking polygraph exams in February and March of 1983, 12 were black, 10 were white, two were Hispanic, and one was Asian. Six employees were exempted--five white and one Hispanic. Of these six, four white employees had been tested just four weeks earlier as...