Bio v. Federal Express Corp.

• Decision Date: 16 September 2005
• Docket Number: No. 04-2849.,04-2849.
• Citation: 424 F.3d 593
• Parties: Maman D. BIO, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

424 F.3d 593

Maman D. BIO, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee.

No. 04-2849.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2005.

Decided September 16, 2005.

Timothy Clark (argued), Clark Coleman & Freeman, Indianapolis, IN, for Plaintiff-Appellant.

Jay L. Grytdahl (argued), Karen Vaughan McManus, Memphis, TN, for Defendant-Appellee.

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

WOOD, Circuit Judge.

Maman D. Bio sued his former employer, Federal Express Corporation (FedEx), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981, claiming that it took disciplinary action against him and terminated his employment for racially discriminatory reasons. The district court granted FedEx's motion for summary judgment, finding that Bio had failed to submit evidence showing that a similarly situated employee received more favorable treatment. We affirm.

I

Bio began working for FedEx in 1994 as a Material Handler at FedEx's Hub facility in Indianapolis, Indiana. Around November 1996, he was promoted to the position of Engineering Specialist in the Engineering Department, where he was responsible for preparing and monitoring long-range operational plans, planning for and assisting with the implementation of required changes in operations, and providing engineering support to the operating and corporate departments of the Indianapolis Hub.

FedEx has a Performance Improvement Policy that guides its supervisors in addressing employees' performance problems. The "tools" (as the Policy describes them) include verbal counseling, written counseling, and performance reminders. When evaluating a performance issue, a supervisor may take an employee's past performance into account to determine which tool is appropriate. The Policy describes a performance reminder as "a written disciplinary notification that is normally warranted when: there is a severe performance problem or the same or similar performance problem has occurred on at least [two] or more occasions within the last 12 months." It provides that an employee can be terminated if she receives three "performance reminders" or disciplinary notifications within a twelve-month period. Verbal counseling and written counseling do not count toward the three disciplinary notifications required before termination. FedEx also has an Acceptable Conduct Policy, which states that employees can be disciplined or discharged for misconduct such as insubordination, refusal to follow instructions, or not performing work in a timely manner without valid reason. Bio received copies of both policies.

Bio's employment history was not problem-free. Over time, he received oral and written counseling on numerous occasions about difficulties he had in performing his duties as an Engineering Specialist. In September 1999, Bio was counseled about erroneous volume entries, calculation errors, failure to meet deadlines, and failure to communicate with internal customers. He was counseled in writing on November 11, 1999, for failing to complete a volume projections assignment on time and for failing to give timely notice that he was unable to meet the deadline. In December 2000 and January 2001, Bio was counseled about deficiencies in two operational plans and a project memo he published. None of these incidents resulted in the issuance of a performance reminder.

Bio received his first performance reminder on March 16, 2001, for poor quality of work related to a plan that he published. At first he contested the performance reminder, but later he withdrew his complaint. On May 14, 2001, Bio received an annual performance evaluation stating that he had problems with prioritizing and completing tasks and with following through on assignments without prompting. On August 29, Bio received his second performance reminder, this time for failing to complete an assignment from the previous night. At the beginning of his shift on August 28, Bio's supervisors asked him to revise the volume projections of the September 2001 Monthly Operating Plan. He was instructed to post the revised file on the facility's computer network and then notify the Operations Control Room that he had completed this task before the end of his shift. Bio's supervisor, Robin Damm, testified that she went to Bio's cubicle at approximately 4:30 a.m. and saw that he had cleaned up his work area and left for the night. She then looked for Bio's revisions on the computer network but did not find the updated files that Bio was supposed to complete.

Bio tells a different story. He claims that the September 2001 Plan was originally prepared by another Engineering Specialist, Ken Scoda, and that his assignment on the night of August 28 was to help Scoda by correcting the errors in the file. While Bio does not contest that he was required to post the updated file on the network and to notify the Control Room afterwards, neither of which he did, he maintains that he completed the assignment and left a voicemail message to that effect with the Control Room before he left work that night.

The next night, Damm told Bio that she was unable to find the updated volume reports and asked why he had not completed his assignment. Bio responded that he had given her a printed copy of the updated file the night before and that he had left a voicemail message as well as a hard copy with the Control Room. According to FedEx, neither Damm nor anyone else had seen these alleged updates, either on the network or in printed form. After reviewing Bio's employment file and checking with her supervisor, Joseph Stephens, as well as a Human Resources representative, Damm issued the August 29 performance reminder for his failure to complete the assignment. Because Bio had failed to show improvement over the course of his employment, Damm also gave him a "Decision Day" in accordance with FedEx's policies. A Decision Day is a day off granted to an employee so that he can determine whether he desires to remain employed at the company. If the employee decides to continue employment, he is required to prepare a Personal Performance Agreement demonstrating his commitment to improve his performance. Damm warned Bio that FedEx would consider a failure on his part to develop and produce a Personal Performance Agreement to be a violation of the Acceptable Conduct Policy and a voluntary resignation of employment.

When Bio returned to work the next evening, he told Damm that he wanted to remain employed at FedEx but that he refused to prepare a Personal Performance Agreement because he believed that the August 29 performance reminder was unwarranted. Later that night, Damm issued a Warning Letter to Bio for failing to prepare the required Personal Performance Agreement. FedEx fired Bio on September 5, 2001, because he had received three disciplinary notifications within a twelve-month period: the two performance reminders on March 16, 2001, and August 29, 2001, and the Warning Letter on August 31, 2001.

Four days later, Bio filed an internal complaint stating his disagreement with the last two disciplinary actions taken against him, claiming that he had been treated unfairly. Notably, he did not mention racial discrimination in this complaint. On June 3, 2002, Bio filed charges of racial discrimination against FedEx with the Equal Employment Opportunity Commission (EEOC) and the Indiana Civil Rights Commission. After he received his Notice of Right to Sue from the EEOC, he filed this action in district court on January 3, 2003, complaining about both the disciplinary actions and the firing.

At the end of discovery, FedEx moved for summary judgment, arguing that Bio had failed to identify a similarly situated white employee who received more favorable treatment and that Bio's performance did not meet its legitimate expectations. It also contended that it had legitimate reasons for disciplining and terminating Bio. In opposition to FedEx's motion, Bio argued that he had established a prima facie case and that there was a sufficient dispute of material fact to place the issue of pretext before the jury. The district court granted summary judgment in favor of FedEx on the ground that Bio had not identified a similarly situated employee who was treated more favorably. Bio now appeals.

II

We review a district court's grant of summary judgment de novo, construing all facts and inferences in the light most favorable to the party opposing the motion. See Brummett v. Sinclair Broad. Group, Inc., 414 F.3d 686, 692 (7th Cir. 2005). We will affirm if the summary judgment record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV....