Nair v. Bank of America Illinois, 95 C 6181.

• Decision Date: 19 November 1997
• Docket Number: No. 95 C 6181.,95 C 6181.
• Citation: 991 F.Supp. 940
• Parties: Syamalan NAIR, Plaintiffs, v. BANK OF AMERICA ILLINOIS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

991 F.Supp. 940

Syamalan NAIR, Plaintiffs, v. BANK OF AMERICA ILLINOIS, Defendant.

No. 95 C 6181.

United States District Court, N.D. Illinois, Eastern Division.

November 19, 1997.

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Charmaine Elizabeth Dwyer, Chicago, IL, for Plaintiff.

Syamalan Nair, Chicago, IL, pro se.

Thomas Michael Durkin, James W. Gladden, Jr., Kim Ann Leffert, Mayer, Brown & Platt, Chicago, IL, Maritoni Loquillano Derecho, Adler, Murphy & McQuillen, Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

PALLMEYER, United States Magistrate Judge.

Plaintiff Syamalan Nair challenges his February 1994 discharge from employment with Defendant Bank of America Illinois as a violation of his civil rights. His complaint as amended consists of two counts. In Count I, brought under Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et seq., Plaintiff claims that Defendant discriminated against him on account of his race and national origin by denying him promotional opportunities, by demoting him, by harassing him, and by discharging him. In the alternative, Plaintiff alleges that the Bank took these actions in retaliation for Plaintiff's filing of discrimination charges in 1986 and again in 1988. Count II mirrors Count I in its claims but alleges a violation of 42 U.S.C. § 1981, not Title VII. Defendant has moved for summary judgment on both counts. For the reasons set forth below, summary judgment is granted in part and denied in part.

FACTUAL BACKGROUND

The following facts are taken from the Statement of Uncontested Material Facts in Support of Defendant's Motion for Summary Judgment (hereinafter "Def.'s 12(M) Stmt."), Plaintiffs Response to Statement of Uncontested Material Facts in Support of Defendant's Motion for Summary Judgment (hereinafter "Pl.'s 12(N) Stmt."), Plaintiff's Statement of Additional Material Facts Pursuant to Local Rule 12(N)(3)(b) Which Require Denial of Defendant's Summary Judgment Motion (hereinafter "Pl.'s 12(N)(3)(b) Stmt."),¹ and depositions and affidavits contained in the record.

On September 10, 1979, Defendant Bank of America Illinois (hereinafter sometimes "the Bank") hired Plaintiff, Syamalan "Sam" Nair, as a Salary Grade 5 clerk and assigned him to its document processing center, the area of the bank where checks presented for deposit are cleared and processed. (Stell Dep. I at 9; Nair Dep. at 32, 33.) Not long afterwards, in 1981, Defendant promoted Plaintiff to a Salary Grade 6 position as a Senior Investigator. (Nair Dep. at 33.) In this new position, Plaintiff "investigated discrepancies in customer accounts" (Def.'s 12(M) Stmt. ¶ 9; Nair Dep. 33, 34), working on the day shift. (Nair Dep. at 35.) In subsequent years as a Senior Investigator, Plaintiff reported to several different supervisors and was assigned to several different sections, but his responsibilities remained largely the same throughout his tenure with the Bank. (Nair Dep. 36, 38.)

It is undisputed that from the beginning of his employment with Defendant, Plaintiff had serious problems with attendance. As early as 1982, one of Plaintiff's supervisors noted that he was "absent and late more often than normal. Often away from work without good reason." (September 1982 Performance Appraisal, Ex. 22 to Def.'s 12(M) Stmt.) Between 1984 and 1991, Plaintiff received seven disciplinary memoranda pursuant to Defendant's attendance policy. (1984-91 Disciplinary Memoranda, Ex. 23 to Def.'s 12(M) Stmt.; Nair Dep. at 98.) Each of these memoranda stated that Defendant expected "an immediate and lasting improvement" in Plaintiff's attendance record, and that failure to show up for work more consistently could have a negative impact on his future performance appraisals and his chances for promotion. (1984-91 Disciplinary Memoranda, Ex. 23 to Def.'s 12(M) Stmt.; Nair Dep. 103, 104.) In July 1991, moreover, yet another supervisor warned Plaintiff that he "must be cautious with his attendance record so that it does not become a factor in his performance." (July 1991 Performance Appraisal, Ex. 24 to Def.'s 12(M) Stmt.)

Plaintiff received a number of performance evaluations during his years as a senior investigator. (Nair Affidavit (hereinafter "Nair Aff.") ¶ 7.) Few of these evaluations were noteworthy,² and Plaintiff ultimately grew dissatisfied with how he was rated. In 1986, he commented on one evaluation that "This appraisal does not reflect high standard of my work and achievement. I am being appraised unfairly, as my work exceeds the company standars [sic] for my position [sic]." (May 1986 Performance Evaluation, Ex. A to Nair Aff.) He did not, however, provide any detailed reasons for his contention that he should have been rated higher.

Plaintiff was also dissatisfied with Defendant's failure to promote him despite the fact that he was, as he describes it, "fully qualified." (Pl.'s 12(N)(3)(b) Stmt. ¶ 19.) On at least two separate occasions in 1986, Plaintiff applied for, but was denied, Salary Grade 7 positions.³ (Pl.'s 12(N)(3)(b) Stmt. ¶¶ 19, 21.) Defendant has not responded to Plaintiff's assertion that he was fully qualified for these positions, so this court accepts Plaintiff's assertion as true.

In 1986, Plaintiff filed a Charge of Discrimination with the Illinois Department of Human Rights (hereinafter "IDHR"), alleging that Defendant had failed to promote him and had underrated his performance on account of his national origin. (1986 Charge, Ex. C to Nair Aff.; Nair Aff. ¶ 10.) After filing this charge, he was summoned to meet with Agnes Canning, the Vice President of Defendant's Human Resources Department. (Pl.'s 12(N)(3)(b) Stmt. ¶ 24.) They discussed the allegations in Plaintiff's charge, and Canning allegedly told Plaintiff that she would "make some inquiries" about the possibility of promoting him. (Id.) Apparently dissatisfied with Canning's efforts, Plaintiff filed a similar but slightly modified charge with the Equal Employment Opportunity Commission (hereinafter "EEOC") in 1988;⁴ he dropped the claim that Defendant had underrated him and added sex discrimination as a basis for Defendant's failure to promote him. (1988 Charge, Ex. D to Nair Aff.; Nair Aff. ¶ 11.) Both agencies ultimately dismissed the charges as unfounded. (Administrative Charge Dismissals, Exs. 14 and 17 to Def.'s 12(M) Stmt.)

In September 1992, Plaintiff requested a transfer to the night shift.⁵ (Scornavacco Dep. at 24, 38; Nair Dep. 43, 281.) At the time of his request, however, Plaintiff acknowledges that the only available position for which he was qualified was a Salary Grade 5 Senior Checker position in the incoming deposits area of the Bank. (Scornavacco Dep. at 23, 28, 49, 154; Nair Dep. at 281.) Proceeding with such a transfer would ordinarily have resulted in a reduction in pay for Plaintiff, but because the salary ranges for grades 5 and 6 overlap and Plaintiff's grade 6 salary in 1992 fell in the range common to both grades (Stell Dep. I at 4), night shift supervisor Barbara Scornavacco informed Plaintiff that his salary would not change upon transferring to the night shift. (Scornavacco Dep. at 40; Nair Dep. at 49.) In fact, because night shift workers receive a premium not offered day shift workers, she also informed Plaintiff that his salary would probably increase if he transferred to the night shift. (Scornavacco Dep. at 49; Stell Dep. I at 38; Nair Dep. at 56, 197.) Thus, Plaintiff decided to go through with the transfer, although it technically constituted a demotion. (Transfer Requisition, Ex. 7 to Def.'s 12(M) Stmt.)

Shortly before his transfer took effect, Plaintiff met again with night shift manager Barbara Scornavacco. (Scornavacco Dep. at 15, 35, 44; Nair Dep. at 48.) She gave Plaintiff a brief description of the Senior Checker position, explaining that it would require more standing and lifting than his previous position as a Senior Investigator. (Scornavacco Dep. at 39.) Plaintiff also met separately with his new supervisor on the night shift, Kenneth Stell,⁶ but the record suggests that their meeting was more confrontational than it was informative. Stell admits both to having reviewed Plaintiff's personnel file — which included records of the discrimination charges Plaintiff filed with the IDHR and the EEOC⁷ — and to having told Plaintiff "I know all about you." (Stell Dep. I at 22-24; Nair Dep. 127-29, 278.)

According to Plaintiff, his employment relationship with Stell never recovered from that initial meeting. Plaintiff claims that he "noticed immediately" after he began working as a Senior Checker on the night shift that Stell disliked him and treated other employees more favorably. (Nair Dep. 276-77.) As proof, Plaintiff points to what he characterizes as acts of "harassment" by Stell. (Plaintiff's Amended Complaint (hereinafter "Pl.'s Amend.Compl." Count I ¶ 9, Count II ¶ 7.) First, he alleges that Stell refused to allow him to start his shift earlier in the evening so that he could be home from work in time to prepare his children for school.⁸ (Nair Aff. ¶ 17; Scornavacco Dep. at 89, 157.) Second, he complains that Stell took voluminous notes on him, more than on any other employee. (Nair Aff. ¶ 21; Pl.'s 12(N)(3)(b) Stmt. ¶ 78.) Third, Plaintiff alleges that Stell refused to speak to him during working hours. (Nair Dep. at 144, 277-78; Pl.'s 12(N)(3)(b) Stmt. ¶ 77.) Fourth, he claims that Stell excluded him from at least seven or eight section meetings. (Nair Dep. at 142-44; Pl.'s 12(N)(3)(b) Stmt. ¶ 76.) Finally, he recounts that Stell called him a "damn Indian" and made it difficult for him to leave work one day after he had received word that his son was home having convulsions.⁹ (Nair Dep. at 147-48, 154; Pl.'s 12(N)(3)(b) Stmt. ¶ 74.) Significantly, Plaintiff has not provided specific dates for any of these acts of harassment; he notes in this regard only that the "damn Indian" incident occurred "a few months" after he transferred to the night shift....