Cowan v. Glenbrook Sec. Services, Inc.

• Decision Date: 23 July 1997
• Docket Number: No. 96-3897,96-3897
• Citation: 123 F.3d 438
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 325, 71 Empl. Prac. Dec. P 44,878 Thomas COWAN, Plaintiff-Appellant, v. GLENBROOK SECURITY SERVICES, INC., d/b/a Glenbrook Patrol Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 438

123 F.3d 438

78 Fair Empl.Prac.Cas. (BNA) 325,

71 Empl. Prac. Dec. P 44,878

Thomas COWAN, Plaintiff-Appellant, v. GLENBROOK SECURITY SERVICES, INC., d/b/a Glenbrook Patrol Services, Defendant-Appellee.

No. 96-3897.

United States Court of Appeals Seventh Circuit.

Argued May 28, 1997.

Decided July 23, 1997.

Anthony S. DiVincenzo (argued), Campbell & DiVincenzo, Chicago, IL, Rick M. Schoenfield, Schoenfield & Swartzman, Chicago, IL, for Plaintiff-Appellant.

J. Paula Roderick, Grady B. Murdock, Jr. (argued), Jerome A. Siegan, Neal & Associates, Chicago, IL, for Defendant-Appellee.

Before Cudahy, Eschbach, and Flaum, Circuit Judges.

Flaum, Circuit Judge.

Plaintiff-appellant Thomas Cowan contends that defendant-appellee Glenbrook Security Services, Inc. discharged him because he is African-American and seeks compensatory damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., for the allegedly unlawful termination of his employment. According to Glenbrook, habitual tardiness, not discrimination, was at the root of plaintiff's dismissal. The district court agreed with Glenbrook that plaintiff could not prove that he was fired because of his race; to the contrary, the district court found that the evidence overwhelmingly suggested that plaintiff was terminated because he was chronically late in reporting for work. We agree and now affirm the district court's grant of summary judgment for Glenbrook.

I.

Cowan was employed by Glenbrook as a security guard from October 1990 until May 1992. During the course of his employment, plaintiff was stationed at various companies to provide on-site security. From October 1990 until December 1991, plaintiff was assigned to guard the gatehouse entrance of the Allstate Insurance Company. Between January and March of 1992, he was posted at Dean Witter, except for a couple of weeks in February 1992 when he worked at Robert's Printing Company. Glenbrook transferred him to the G.D. Searle job site in March 1992, where he worked until he was terminated in May 1992. While at G.D. Searle, plaintiff continued to work weekends at the Dean Witter location. Although he was stationed at a variety of posts and under the direction of several supervisors during the course of his employment with Glenbrook, the evidence presented by plaintiff in support of his claim of racially motivated discharge primarily relates to the period between April and December of 1991 when he was under the supervision of Lieutenant Russell Radley.

Plaintiff points to Radley's interference with his attempts to secure a position with the Postal Service as evidence of Radley's allegedly racially motivated animosity toward him. According to plaintiff's deposition testimony, Radley, after approving plaintiff's request for time off from work to interview with the Postal Service, proceeded to write him up for failing to report to work. Plaintiff was then asked to present a note from the Postal Service verifying where he had been on those days, though other officers were not similarly required to verify their absences. When plaintiff complained about this incident to Radley's superior, Radley threatened to fire him. Because plaintiff believed that Radley also had called the Postal Service to interfere with his obtaining a position, plaintiff confronted him in the cafeteria. During this confrontation, Radley directed a racial epithet at plaintiff. Plaintiff also testified in his deposition that Radley had on another occasion said that he did not like "niggers." ¹

Cowan also stated at his deposition that he was forced to urinate in a cup because Radley did not allow him to take two of the three required breaks during his eight-hour shift and that his lunch break was shortened, making it necessary for him to eat at his post. Other incidents of alleged discriminatory treatment include Radley's not telling plaintiff that his wife called to tell him that his child was ill and Radley's accusing plaintiff of pouring urine on an Allstate employee's vehicle.

According to plaintiff, he was not the only employee who experienced problems with Radley: "the whole crew" of Glenbrook patrol officers complained about Lt. Radley. Some of these patrol officers, including Chris Latimer, an African-American officer, Ann Gregory and Sharon, both white officers, and another individual, a Latino officer, wrote letters complaining about Lt. Radley. Among those who verbally complained were two Latino officers, one white officer, Vickrume Sandu, described by plaintiff as an Asian officer, and Randy Rai, described by plaintiff as either Hindu or Muslim. ²

Plaintiff admits that after he spoke with Captain John Sorman, Radley's superior, the problem concerning his being relieved for his scheduled breaks was resolved. On December 13, 1991, Cowan was removed from the Allstate assignment (he had requested a transfer) ³ and did not work for Radley again. Steve Bucklin, Glenbrook's President and CEO, fired plaintiff approximately five months later on May 15, 1992. Cowan contends that he was fired due in large part to the racially motivated reports of tardiness submitted by Radley. Glenbrook maintains that Cowan was fired because he was habitually late for and absent from work.

The parties disagree as to the extent of Cowan's tardiness and absenteeism. According to Glenbrook's personnel records, during the period of approximately 15 months that Cowan worked at Allstate, he was late or absent from work 78 times. Cowan's employee file contains a warning from Lieutenant Kilboy, the supervisor for whom plaintiff worked between October 1990 and April 1991, captioned "First Written Warning-Tardiness," which states that plaintiff "was late one day in October 1990, 2 days in November 1990, 2 days in December 1990 and 4 days in January 1991" and that if plaintiff was late three times or more in a given month, he would be written up for tardiness and this would go in his personnel file. According to plaintiff, he was late only twice during the period covered by Kilboy's warning.

Plaintiff's personnel file also contains two warnings signed by Radley, for whom he worked from April 1991 until December 1991. The first warning, dated April 24, 1991, states: "Today, Officer Cowan was late to work. This is the second day in a row, the third time this month. Per my immediate account supervisor's previous notice of 05 Feb 1991 this behavior cannot be allowed." The second memo, dated August 26, 1991, likewise chronicled plaintiff's alleged tardiness.

Final warning--T.J. [plaintiff] has six late days ... in August. One sick day, and one personal day ... He was given Sunday (7-3) shift so that he would not be late on Monday A.M.'s ... He was still late this A.M. I appreciate his call to inform me he was to be late ... Even so his tardiness has become habitual. His attendance is poor.

While plaintiff admits that he received and signed the April 24, 1991 warning from Radley, he denies having seen the August 26, 1991 warning (though it does appear to bear his signature as well), and recalls having been late on only two occasions during the period he was under Radley's supervision.

In January 1992, Cowan was assigned to work part-time at Dean Witter, where his hours varied. Plaintiff testified at his deposition that Sam Patell, the shift supervisor at Dean Witter, told him that he had been instructed to write plaintiff up for tardiness whenever possible because Steve Bucklin was trying to get rid of plaintiff. Plaintiff also testified that, when he told Sorman that if he did not work a set schedule that he would need to be late occasionally, Sorman told him not to worry about being late. Plaintiff claims that Sorman told him that it was Bucklin who did not want plaintiff assigned to a set schedule. Shortly thereafter, plaintiff met with Bucklin and Sorman regarding his tardiness. Bucklin showed plaintiff a list of days on which plaintiff was allegedly late. Plaintiff informed Bucklin that he had switched hours with other officers on certain days and that it was those officers who were late. Plaintiff claims that Sorman agreed that plaintiff had switched with other officers on certain days. Because plaintiff complained that Dean Witter was too far from his home and that the varied hours made it difficult to be on time for his shift, Bucklin transferred plaintiff on March 2, 1992 to G.D. Searle, a more convenient job site, where he was assigned to the morning shift. Bucklin warned plaintiff that he would be fired if he was one minute late.

Plaintiff's file contains a warning issued shortly thereafter on March 6, 1992 signed by plaintiff's supervisor, John P. Sweeney, stating that plaintiff had been "late two times in the same week." Plaintiff denies having seen this warning, but it does contain what appears to be plaintiff's signature. On April 29, 1992, a "Final Warning" was issued informing plaintiff he was late on 13 of the 29 days he was assigned to the Dean Witter job site, where he had continued to work weekends, and warning that he would be terminated the next time he was late at any job site. Plaintiff admits that he received this warning and, when confronted with the Final Warning at his deposition, did not deny that he was late on these days. ⁴ According to Glenbrook, plaintiff was late on May 14, 1992 and was issued another disciplinary report. When plaintiff arrived late on May 15, 1992, Bucklin fired him. Plaintiff admits that he may have been late on May 14 and 15. A white security officer, who had been working at the G.D. Searle job site before plaintiff was assigned there, was given plaintiff's position.

In the period between August 1990 and May 1992, Glenbrook dismissed eleven other security officers based on absenteeism and tardiness, only three of whom were African Americans. Glenbrook's employee handbook provides that tardiness is a ground for termination.

II.

To prevail on his claim, plaintiff must show ...