Malhotra v. Cotter & Co.

• Decision Date: 24 August 1988
• Docket Number: No. 86 C 9460.,86 C 9460.
• Court: U.S. District Court — Northern District of Illinois
• Parties: Subhash C. MALHOTRA, Plaintiff, v. COTTER & COMPANY, a Delaware corporation, Defendant.

696 F. Supp. 1203

Subhash C. MALHOTRA, Plaintiff, v. COTTER & COMPANY, a Delaware corporation, Defendant.

No. 86 C 9460.

United States District Court, N.D. Illinois, E.D.

August 24, 1988.

John L. Gubbins, John L. Gubbins & Assoc., Ltd., Chicago, Ill., for plaintiff.

Steven H. Adelman, P.C., Donald J. McNeil, Keck, Mahin & Cate, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

HOLDERMAN, District Judge:

On April 27, 1987 Mr. Subhash Malhotra filed his first amended complaint, alleging that Cotter & Company (1) violated Title VII and Section 1981 of the Civil Rights Act of 1866 by denying him promotions on the basis of his race and national origin; (2) violated the same statutes by suspending and terminating him in retaliation for his filing the present action. Mr. Malhotra also alleged that the defendant subjected him to "a pattern of harassment and discrimination due to his race and national origin."

Before the court is the defendant's motion for summary judgment. Based upon the undisputed material facts, it is granted.

BACKGROUND FACTS

The parties do not dispute the following facts. Mr. Malhotra is an Asian Indian. In 1966 Mr. Malhotra received an M.S. degree in accounting from the Commerce College in the University of Delhi, India.

In 1977, Mr. Malhotra passed the C.P.A. exam. He went to work as a senior accountant at the accounting firm of Washington, McMahon & McKeever.

In 1978, Mr. Malhotra was hired as an Internal Auditor for Cotter & Company.

On or about August 30, 1985, Mr. Malhotra filed a charge of discrimination with the Illinois Department of Human Rights ("IDHR"), alleging that he had been discriminated against on the basis of his national origin.

Mr. Malhotra's charge listed eight positions which he claimed to have been discriminatorily denied between 1979 and 1983 and two positions which he claimed to have been discriminatorily denied after 1983.

The charge further alleged that Mr. Malhotra was as qualified, or more qualified, than each of the individuals hired and/or promoted to the listed positions, because Mr. Malhotra is a C.P.A., whereas many of the individuals hired and/or promoted had less seniority and did not have C.P.A.s.

Prior to the filing of his discrimination charge, Mr. Malhotra specifically requested consideration for two jobs: (a) the job of Accounts Payable Manager, from which Ron Greenberg was terminated in late 1983; and (b) the Finance Manager job, from which Dave Moorshead was terminated at the end of 1984.

Mr. Malhotra did not apply for any other jobs at Cotter & Company because he believed that he had to apply through his supervisor, Internal Audit Manager Mr. Roth.

In December 1983, Ron Wesoloskie replaced Mr. Greenberg as Accounts Payable Manager.

In late 1984 the position of Finance Manager opened up. Controller Ray Grymski, who had the responsibility to select the new Finance Manager, learned of Mr. Malhotra's interest in the position.

Mr. Grymski considered many applicants, including Mr. Malhotra and Mr. Sweenie.¹ Mr. Grymski did not, however, call and set up an interview with Mr. Malhotra. Mr. Grymski's review of Mr. Malhotra's resume revealed that Mr. Malhotra had spent the previous seven years as an Internal Auditor for Cotter & Company and had had an auditing/accounting role with most of his previous employers.

Mr. Grymski's review of Mr. Sweenie's resume revealed he had an M.B.A. from Northwestern University in Finance/Marketing, had experience in the development of marketing plans for financial services with Continental Illinois National Bank, had worked a year for a consulting firm in acquisition strategy planning and other financially related areas, had worked a year for Baxter-Travenol as a Senior Financial Analyst, and had been employed by Cotter & Company in its Finance Department for three years, first as a Financial Analyst, and then as a Financial Planning Manager.

When Mr. Moorshead left, Mr. Sweenie was named as Assistant Manager of the Finance Department. Mr. Sweenie ran the department on an interim basis until he became Finance Manager in June 1985.

In January 1986, Mr. Malhotra learned that the Import Documentation and Distribution Manager had died. Mr. Malhotra expressed interest in the position.

Mr. Malhotra was offered the position of Import Documentation and Distribution Manager effective January 21, 1986. Mr. Malhotra accepted. There were three other employees in the Import Department: John Sugihara, Betty Matos and Sandra Molina.

In December 1986, Mr. Malhotra filed this lawsuit, claiming that he had been wrongfully denied certain promotions.

On February 4, 1987 Betty Matos complained in writing about Mr. Malhotra.

DISCUSSION

Fed.R.Civ.P. 56(c) provides that a district court shall grant summary judgment if the pleadings and evidentiary materials show that there is no genuine issue of material fact. A court must enter summary judgment if, after adequate time for discovery and upon motion, a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In making such a showing, there must be sufficient evidence favoring the non-movant for a reasonable jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A mere scintilla of evidence is not enough. Id., 106 S.Ct. at 2512.

1. Failure to Promote

A. Title VII

Defendant argues that Mr. Malhotra's EEOC charge is untimely as to all promotions prior to 1984. Mr. Malhotra argues that either (1) defendant waived the statute of limitations defense of 42 U.S.C. § 2000e-5(e) or (2) defendant's failure to promote him for seven years was a "continuing practice," so that the statute of limitations does not apply.

Defendant did not waive the statute of limitations defense, as in its Answer to the First Amended Complaint defendant denied "that a charge was filed within 180 days of all the claimed unlawful employment practices alleged in the Complaint."

Neither does defendant's conduct constitute a "continuing violation" of Title VII. In Stewart v. CPC International, Inc., 679 F.2d 117, 120 (7th Cir.1982) the Seventh Circuit held that a defendant has committed a continuing violation when (1) it has engaged in a practice of discrimination as to which it is difficult to fix the exact day on which a violation occurred or (2) where an employer has covertly followed a practice of discrimination. But a finding of a continuing violation must be based upon a present violation within the relevant time period. Hemmige v. Chicago Public Schools, 786 F.2d 280, 284 (7th Cir.1986).

Because Mr. Malhotra has not presented sufficient evidence from which a jury could reasonably find a present violation of Title VII, there is no basis for his continuing violation theory.

Only one of the alleged failures to promote occurred within 300 days of the filing of Mr. Malhotra's EEOC charge: that of Thomas Sweenie to Finance Manager in June 1985. Mr. Malhotra has not presented sufficient evidence to show that defendant's failure to promote him to Finance Manager was racially discriminatory.

The ultimate inquiry in a Title VII disparate treatment case is whether discriminatory intent was a "but for" cause of the adverse action. Maguire v. Marquette University, 814 F.2d 1213, 1216 (7th Cir. 1987). Where the defendant has offered a legitimate, nondiscriminatory reason for rejecting the plaintiff, the plaintiff must show that the reasons advanced are a pretext and that a motivating factor in the defendant's decision was discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 804-5, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973).

An employee may show that his employer's proffered reason is pretextual by demonstrating either (1) that the employer's explanation is unworthy of credence or (2) that it is more likely that a discriminatory reason actually accounted for the defendant's actions. Andre v. The Bendix Corporation, 841 F.2d 172, 175 (7th Cir.1988); Benzies v. Illinois Department of Mental Health, 810 F.2d 146, 148, (7th Cir.1987).

Assuming arguendo that Mr. Malhotra's evidence establishes a prima facie case, defendant has articulated a legitimate, non-discriminatory reason for failing to promote Mr. Malhotra to the position of Finance Manager. Defendant submitted evidence that it promoted Thomas Sweenie rather than Mr. Malhotra because Mr. Sweenie was more qualified for the job of Finance Manager. Mr. Malhotra has not submitted evidence from which a trier of fact could conclude that defendant's proffered reason is pretextual.

There is no evidence, for example, that defendant's proffered reason for failing to promote Mr. Malhotra is unworthy of credence. The evidence instead shows that Mr. Sweenie was indeed more qualified than Mr. Malhotra for the job of Finance Manager. Mr. Sweenie had an M.B.A. in Finance and Marketing from Northwestern University. Mr. Sweenie had been acting manager of the Finance Department for six months prior to the promotion. And Mr. Sweenie had worked in several finance-related jobs, e.g. as a Senior Financial Analyst, before working with defendant.

Mr. Malhotra argues that he was better qualified for the position of Finance Manager because he has a C.P.A. and had audited 90% of the Finance Department. This argument is not persuasive, as Mr. Grymski, defendant's Controller, presented evidence that auditing and accounting skills are not very important to the work of Finance Manager.

Neither does the remark by Mr. Roth, Mr. Malhotra's supervisor, in December 1984, that Mr. Malhotra "had credentials," show that Mr. Malhotra was better qualified than Mr. Sweenie for the position of Finance Manager. (Plaintiff's deposition p. 114-5). First, Mr. Roth was not responsible for making the...