Fortier v. Ameritech Mobile Communications, Inc.

• Decision Date: 03 December 1998
• Docket Number: No. 98-1023,98-1023
• Citation: 161 F.3d 1106
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 876 Fernand L. FORTIER, III, Plaintiff-Appellant, v. AMERITECH MOBILE COMMUNICATIONS, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1106

161 F.3d 1106

78 Fair Empl.Prac.Cas. (BNA) 876

Fernand L. FORTIER, III, Plaintiff-Appellant, v. AMERITECH MOBILE COMMUNICATIONS, INCORPORATED, Defendant-Appellee.

No. 98-1023.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 9, 1998.

Decided Dec. 3, 1998.

William J. Harte (argued), Courtney Carlton Nottage, Harte & Associates, Chicago, IL, for Plaintiff-Appellant.

David B. Ritter (argued), Altheimer & Gray, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Fernand L. Fortier ("Mr.Fortier") seeks review of the district court's decision to grant the motion for summary judgment of Ameritech Mobile Communications, Inc. ("Ameritech") as to Mr. Fortier's discriminatory discharge claims under the ADEA and Title VII (Counts I and II) and his retaliatory discharge

                claim under Title VII (Count III). 1  For the reasons set forth in the following opinion, we affirm the judgment of the district court
                

I BACKGROUND

A. Facts

Ameritech provides cellular telephone, paging and other communications services in several Midwestern states. In 1990, Mr. Fortier transferred to the position of Manager of Staffing and Equal Employment Opportunity (EEO) at Ameritech. In the three years preceding his transfer, Mr. Fortier had received positive evaluations for his job performance in other positions with the Ameritech companies. Notably, from February 1990 until April 1992, Mr. Fortier reported to Jim Riecks, the Director of Human Resources. In a performance review for 1991, Riecks determined that Mr. Fortier met "expectations for most or all job accountabilities." R.26 at 3.

In April 1992, Mr. Fortier began to report directly to Mary Aguina-Tudela ("Aguina-Tudela"), the Vice President of Human Resources. Around the same time, Aguina-Tudela reorganized the human resources department and, as part of this reorganization, assigned Mr. Fortier the responsibility of developing a new safety and security function. As part of this alteration in responsibilities, Aguina-Tudela also changed Mr. Fortier's job title to Assistant Director of EEO, Safety and Corporate Security and removed his staffing responsibilities. Mr. Fortier retained his previous EEO responsibilities. There was no alteration in his compensation and salary grade.

In November 1992, Aguina-Tudela made a further change. She assigned Mr. Fortier's EEO responsibilities to Paulette McCann ("McCann"), a 26-year-old woman, and changed Mr. Fortier's job title to Assistant Director of Safety and Security. Aguina-Tudela told both Mr. Fortier and McCann that she wanted a woman in the EEO position because she believed that female employees would feel more comfortable discussing sexual harassment complaints with a woman. She also told Mr. Fortier, who was 42 years old at the time, that she thought it was time for "new blood" and that McCann "had a lot of energy" and would be a "quick study."

When Aguina-Tudela began supervising Mr. Fortier in April 1992, she noticed various deficiencies in his job performance. According to her, Mr. Fortier was often late in reporting to work and in completing assignments; he was unresponsive to her requests and instructions; and he persistently lacked the necessary attention to administrative details. Mr. Fortier disputes these characterizations of his performance. ² According to Aguina-Tudela, she counseled Mr. Fortier In February 1993, Aguina-Tudela completed Mr. Fortier's annual performance review for 1992; she gave him the lowest rating possible. Aguina-Tudela stated that Mr. Fortier was deficient in organization, planning, administration and basic management judgment. She noted that Mr. Fortier was unreliable in the area of accessibility and timeliness and that his follow-up on projects Aguina-Tudela testified in her deposition that she decided to terminate Mr. Fortier in mid-March because of his deficient performance. Aguina-Tudela sent Mr. Fortier a letter on March 30, 1993, informing him that he was being terminated as part of Ameritech's workforce "resizing" program. Upon hearing the news of his termination, Mr. Fortier sent a memorandum to Aguina-Tudela and McCann in which he complained that his performance review did not accurately reflect his performance. He wrote: "I believe that the appraisal and other criteria related to my employment, have been administered in a discriminatory way, on the basis of factors prohibited by law." R.27, Tab B, Ex.10. According to Ameritech, Mr. Fortier was ultimately terminated for poor performance, rather than under the workforce resizing program.

                numerous times on the areas needing improvement. 3  Aguina-Tudela also testified that Mr. Fortier lied to her on three occasions regarding his whereabouts when he arrived late for work. 4
                was unsatisfactory.  Mr. Fortier disputes Aguina-Tudela's evaluation of his performance, claiming that she failed to consider his positive accomplishments, which he had listed on a Performance Appraisal Input submitted to Aguina-Tudela prior to her evaluation.  He also points out that Riecks was his supervisor for the first three months and final two months of the year.  Although Aguina-Tudela admitted that Riecks was in the best position to evaluate Mr. Fortier during the last two months of the year, Riecks did not recall whether Aguina-Tudela consulted him when preparing Mr. Fortier's review and did not recall Mr. Fortier's performance being more or less than satisfactory during those two months.  Finally, Mr. Fortier notes that Aguina-Tudela kept the performance file containing her notes on his performance, although her standard practice was to destroy such a file after writing the performance review
                

After Mr. Fortier's termination, McCann temporarily assumed Mr. Fortier's safety and security duties. She successfully performed the safety function for one and a half months and the security function for approximately five months.

B. Holding of the District Court

On December 4, 1997, the district court granted summary judgment for Ameritech on Mr. Fortier's age and gender discrimination claims and on his retaliatory discharge claim. The district court emphasized that, to survive summary judgment, the nonmoving party must do more than show either the "mere existence of a scintilla of evidence" in support of his position or "some metaphysical doubt" as to the material facts. Relying on Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir.1996), the district court determined that Aguina-Tudela's statements about her preference for a woman in the EEO job did not constitute direct evidence sufficient to raise a genuine issue of fact as to discriminatory intent because these remarks were made in the context of transferring Mr. Fortier's EEO responsibilities to McCann, not in the context of the decision to terminate Mr. Fortier.

The district court further held that Aguina-Tudela's statements at the time Mr. Fortier was relieved of his EEO responsibilities did not constitute circumstantial evidence sufficient to raise a genuine issue of fact as to discriminatory intent because there was no causal nexus between her remarks and Mr. Fortier's termination. Not only were the remarks temporally removed from the termination (by five months), but the remarks also did not exhibit discriminatory animus toward Mr. Fortier.

Turning to the indirect method of establishing a case of either age or gender discrimination under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), method of proof, the district court also held that Mr. Fortier had failed to raise a genuine issue of fact as to whether his performance met Ameritech's legitimate expectations. The district court determined that Mr. Fortier's prior evaluations, his own self-assessment, co-workers' assessments, and Riecks' informal evaluation of Mr. Fortier's 1992 performance were insufficient to raise a genuine issue of fact as to the validity of Aguina-Tudela's evaluations.

II DISCUSSION

A.

Mr. Fortier first submits that the district court erred because Aguina-Tudela's statement that she wanted a woman in the EEO position, coupled with his replacement by a female in that position and his eventual termination, provide direct evidence of gender discrimination that precludes a grant of summary judgment. In Mr. Fortier's view, the statements here, unlike those in Geier, ⁵ are causally related to her decision to terminate him. In his view, relieving him of these responsibilities was the "beginning of the end" of his career at Ameritech. He stresses that EEO work was his area of expertise. When he was relieved of these responsibilities, he was left with only the new safety and security function. He relies primarily on the unpublished decision in Talbott v. Empress River Casino Corp., No. 95 C 5317, 1996 WL 400033 (N.D.Ill. July 15, 1996), in which a supervisor's discriminatory remarks, made eleven months before the decision to terminate, were determined to be probative of discriminatory intent. ⁶ The district court's characterization of Aguina-Tudela's remarks as exhibiting only an "improper gender stereotype," does not recognize appropriately, he submits, that the remarks evince the sort of workplace bias that Title VII was meant to eliminate.

We believe that the district court was correct in concluding that summary judgment was appropriate with respect to the sex discrimination claim. At the outset, it is important to keep in mind that the adverse employment action of which Mr. Fortier complains in this action is his termination from Ameritech, not the change of his responsibilities five months earlier. ⁷ Unlike the situation in Geier, ⁸ Aguina-Tudela's comment about the need for a woman in the EEO position can be characterized as performance-based and therefore might be probative of the employer's discriminatory intent if sufficiently related, causally or temporally, to the adverse...