Kizer v. Children's Learning Center

• Decision Date: 29 April 1992
• Docket Number: 90-1403,Nos. 90-1060,s. 90-1060
• Citation: 962 F.2d 608
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 1356, 58 Empl. Prac. Dec. P 41,455, 22 Fed.R.Serv.3d 900 Loretta D. KIZER, Plaintiff-Appellant, Cross-Appellee, v. CHILDREN'S LEARNING CENTER, a not for profit corporation, Scott R. Erwin, Loretta Littig, Kathy Lockhard and Lynne T. Switzky, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 608

962 F.2d 608

58 Fair Empl.Prac.Cas. (BNA) 1356,

58 Empl. Prac. Dec. P 41,455, 22 Fed.R.Serv.3d 900

Loretta D. KIZER, Plaintiff-Appellant, Cross-Appellee, v. CHILDREN'S LEARNING CENTER, a not for profit corporation Scott R. Erwin, Loretta Littig, Kathy Lockhard and Lynne T. Switzky, Defendants-Appellees Cross-Appellants.

Nos. 90-1060, 90-1403.

United States Court of Appeals Seventh Circuit.

Argued June 7, 1991.

Decided April 29, 1992.

Edward F. Diedrich, DeKalb, Ill., Robert S. Wilson (argued), Sycamore, Ill., for plaintiff-appellant, cross-appellee.

Jerome C. Shapiro, Kankakee, Ill., Scott R. Erwin, DeKalb, Ill., James R. Buck (argued), Klein, Stoddard & Buck, Sycamore, Ill., for defendants-appellees, cross-appellants.

Before COFFEY, FLAUM, and MANION, Circuit Judges.

COFFEY, Circuit Judge.

The plaintiff appeals the district court's entry of summary judgment against her on her Title VII racial discrimination claims, and the defendants cross-appeal the denial of Rule 11 sanctions. Affirm.

I. FACTS AND PROCEEDINGS BELOW

Plaintiff Loretta Kizer, a black female, initially filed charges of employment discrimination with the Equal Employment Opportunity Commission in October of 1986 after being terminated from her position as a teacher's aide at the defendant Children's Learning Center ("CLC"). A "right to sue" letter was issued by the EEOC to the plaintiff on December 23, 1986, and the plaintiff filed suit in the district court alleging discrimination in employment based on race under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e(17), under 42 U.S.C. § 1981 and under 42 U.S.C. § 1985(3). ¹ Pursuant to 28 U.S.C. § 636(b)(1)(B), the district court designated a magistrate judge to submit proposed findings of fact with a recommendation on the defendants' motion for summary judgment. ²

The plaintiff was discharged from her position as a teacher's aide at CLC (an Illinois non-profit corporation located in DeKalb, Illinois) after receiving two written warnings. The validity of the first warning is in dispute. According to the plaintiff's affidavit, on December 18 or 19, 1985, a fire drill was held at the CLC, and during the drill the plaintiff's son, who was under the care of other employees at CLC, was left inside the premises without adult supervision. ³ This allegedly caused the plaintiff "grave mental anguish and emotional distress." According to the plaintiff's affidavit in support of her racial discrimination complaint, she stated she had received permission to leave CLC and denied that she had to be sent home. The defendants admit that Kizer's child was accidently left in the building unattended during a fire drill, but contend that the fire drill incident occurred nearly a year and a half earlier on August 4, 1984, and not on the date the plaintiff-appellant states. On December 18, 1985, defendant Lynne Switzky, an executive director of CLC and one of the plaintiff's supervisors, issued a written warning to the plaintiff which stated "Employee was upset and unable to work with children. She had to be sent home." The defendants deny that the plaintiff requested and received permission to leave on December 18, 1985, as a result of the alleged fire-drill incident. The magistrate judge found that an issue of fact existed as to this written warning, but it was immaterial because CLC's official policy requires only one written warning before dismissing an employee, and Kizer received two written warnings before she was terminated.

The second warning involved a written warning issued by Switzky to the plaintiff on January 13, 1986, as the result of the plaintiff's failure to follow CLC's call-in procedure to report that she would be late for work that day. In spite of the fact that employees are required to call in by 7:15 a.m. when they are unable to report to work in a timely fashion, the warning stated, "Employee called at 8:00 a.m. to report that she would not be in to work because of a sick child." ⁴ The plaintiff was subsequently terminated from her employment at CLC on January 24, 1986, with a letter stating that the plaintiff was being terminated because she had been the recipient of two written warnings. At the time of Kizer's discharge, CLC employed approximately sixty employees, six of whom were black. ⁵ The plaintiff thereafter brought suit alleging her termination was the result of racial discrimination. The plaintiff alleges that she was discriminated against because white employees at CLC also violated the call-in procedures and were not terminated, her staff photograph was mutilated, she was intentionally misled as to CLC's grievance procedures, she was treated less favorably than non-black CLC employees, and her black child was left unsupervised in the building during a fire drill. The defendants produced evidence that seven employees (five whites and two blacks) were also discharged for failing to follow the call-in procedure. After a review of the record, including the magistrate judge's report and recommendation, the district court adopted the report and recommendation and entered summary judgment in favor of the defendants.

II. ISSUES FOR REVIEW

The plaintiff argues the district court erred in granting summary judgment for the defendants because there were genuine issues of material fact contained in her Title VII claim. The plaintiff also alleges that she carried her burden of establishing a prima facie case of discriminatory discharge. The defendants cross-appeal, alleging that the trial court improperly denied their motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure.

III. DISCUSSION

A. Summary Judgment

The plaintiff Kizer contends that it was error for the district court to enter summary judgment because there were genuine issues of material fact relating to her Title VII claim of racial discrimination for an allegedly improper discharge. Specifically, Kizer contends that "[s]ince there is a genuine issue as to material fact as to the first warning, ipso facto, there is a genuine issue as to material fact as to the basic cause of the firing of the Plaintiff since there wouldn't have been a firing on the second alone without the first." "An appellate court should reverse a grant of summary judgment upon the showing of a dispute over a material fact, however, the plaintiff must 'allude to specific facts which raise a genuine issue for trial.' " State of Illinois by Illinois Dep't of Public Aid v. Bowen, 808 F.2d 571, 573-74 (7th Cir.1986) (quoting Linhart v. Glatfelter, 771 F.2d 1004, 1008 (7th Cir.1985)). Furthermore, an appellate court's review of a grant of summary judgment requires the court to view the record and the inferences drawn therefrom in a light most favorable to the party opposing the motion. Id.

Kizer argues that she established her prima facie case and that there was a genuine issue of material fact that the district court was required to resolve regarding whether she had received a valid first warning when she was sent home on December 18, 1985. However, the plaintiff erroneously assumes in her argument that a dispute over the first warning causes a summary judgment based upon the second warning to be inappropriate. It is undisputed that Kizer received a second written warning approximately six weeks later for failing to follow CLC's call-in procedures, and the CLC policy only requires one written warning prior to dismissal. Since the district court relied upon the second warning only, any issue of fact regarding the first warning is immaterial.

B. Discriminatory Discharge

The plaintiff argues that her termination for receiving two written warnings was pretextual and that the real reason she was discharged was on account of her race. Kizer "contends that she was the victim of race discrimination in that other employees at CLC have violated the call-in procedures and have not been fired." The plaintiff also alleges that other evidence of discrimination against her includes the mutilation of her staff photograph, she was intentionally misled as to CLC's grievance procedures, she was treated less favorably than non-black CLC employees in terms of work schedules and work conditions, and that her black child was left in the center unsupervised during a fire drill.

Title VII of the Civil Rights Act of 1964 makes it unlawful for any employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race...." 42 U.S.C. § 2000e-2(a)(1). This court has previously discussed what a plaintiff alleging a discriminatory discharge must prove:

"The Supreme Court set forth the allocation of the burdens of proof for a Title VII discriminatory treatment case in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). The plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Id. at 802, 93 S.Ct. at 1824. 'A plaintiff alleging a discriminatory firing need show only that [s/he] was fired from a job for which [s/he] was qualified while others not in the protected class were treated more favorably.' Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175, 179 (3rd Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1244 (1986). To meet her burden of establishing a prima facie case of discriminatory discharge, [the plaintiff] must therefore show both that she was qualified for and satisfactorily performing the duties of her job. Lee v. National Can Corp., 699 F.2d 932, 936 (7th Cir.), cert. denied, 464 U.S. 845, 104 S.Ct. 148 (1983)."

Andre v. Bendix Corp., 841 F.2d 172, 175 (7th Cir.), cert. denied, 488 U.S. 855, 109 S.Ct. 144, 102 L.Ed.2d 116 (1988) (citations omitted) (emphasis added). Thus, in order to meet her burden of establishing a prima facie case of discriminatory discharge, Kizer "must...