Vitug v. Multistate Tax Com'n

• Decision Date: 08 July 1996
• Docket Number: No. 94-3092,94-3092
• Citation: 88 F.3d 506
• Parties: Joselito VITUG, Plaintiff-Appellant, v. MULTISTATE TAX COMMISSION, Dan R. Bucks, as Executive Director, Les Koenig, as Director of Audit, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 506

88 F.3d 506

Joselito VITUG, Plaintiff-Appellant, v. MULTISTATE TAX COMMISSION, Dan R. Bucks, as Executive Director, Les Koenig, as Director of Audit, et al., Defendants-Appellees.

No. 94-3092.

United States Court of Appeals Seventh Circuit.

Argued Nov. 3, 1995.

Decided July 8, 1996.

Robert M. Motta (argued), Kevin E. Bry, Lavelle, Juneau & McCollom, Oak Park, IL, for Joselito Vitug.

Charles W. Newcom (argued), James G. Fiero, Sherman & Howard, Denver, CO, Paul R. Garry, Judith Y. Gaston, Bates, Meckler, Bulger & Tilson, Chicago, IL, for Multistate Tax Com'n., Dan R. Bucks, Les Koenig, Member Com'rs.

Before CUMMINGS, CUDAHY, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Joselito Vitug worked for almost eight years as an auditor for defendant Multistate Tax Commission. When Vitug was passed over for a promotion, and when subsequent in-house grievance procedures failed to remedy the situation, he resigned, claiming that defendants' conduct had made working conditions intolerable. After filing a claim of national origin discrimination with the appropriate state and federal agencies, Vitug brought suit in district court, alleging that the defendants' failure to promote him, as well as his subsequent "constructive discharge," constituted discrimination on the basis of his religion and national origin in violation of Title VII. The district court granted summary judgment in favor of the defendants on all counts, and Vitug filed a timely notice of appeal. Because we find that Vitug has failed to put forth any meaningful evidence supporting his claims, we affirm the judgment of the district court.

I. HISTORY

Joselito Vitug, a male Filipino who immigrated to the United States from the Philippines in March of 1971, was employed as an auditor for the Chicago office of the Multistate Tax Commission ("Multistate") from April 1985 to January 1, 1993. On June 10 and 11, 1991, Vitug was one of six applicants to interview for the position of field audit supervisor, a position superior to Vitug's job of senior joint auditor. The applicants were interviewed by a panel of three Multistate employees: Les Koenig, a white male who was Vitug's manager at the time of the interview; Alice Davis, an African-American female; and Anita Williams, a white female. Each applicant was asked the same ten questions in the same order. The three interviewers separately assigned scores to each applicant's responses, tallied each applicant's total score, and ranked each applicant's overall performance against the other applicants. At the end of all the interviews, the panel members compared and discussed their individual rankings of the applicants, and they reached a consensus as to the most qualified applicant.

All three interviewers ranked Vitug the lowest of the six applicants. Harold Jennings, a white male, was unanimously considered the highest ranking applicant and was offered the position. As it turns out, Koenig and Jennings are both born-again Christians and are members of the same independent Lutheran church. ¹ In fact, Jennings had learned of the opening for the field audit supervisor position from Koenig at a church meeting. Davis, although not a member of the church, has attended services on previous occasions with Koenig.

Later that week, the same interview panel interviewed four applicants to fill a similar position in Multistate's New York office. The panel members utilized the same interview procedure and asked the applicants the same ten questions as they had in Chicago. A white woman received the highest scores from the panel, but she declined the position. The panel's second choice, an Asian male named George Fung, was then offered the position, and he accepted.

When Vitug was notified on June 20, 1991, that he had not received the field audit supervisor position, he immediately filed a grievance with Multistate. Scott Smith, an in-house attorney from Multistate's Washington, D.C., office, held a hearing to evaluate Vitug's complaints. After the hearing, Smith issued a written memorandum on August 16, 1991, recommending that Vitug's grievance be denied. Further hearings were conducted in September 1991 by Multistate's executive director, Dan Bucks, and in a letter to Vitug dated January 29, 1992, Bucks formally denied the grievance.

On April 10, 1992, Vitug filed a charge of race and/or national origin discrimination with the Illinois Department of Human Rights (the "IDHR"). However, with certain exceptions, the Illinois Human Rights Act does not apply to businesses with fewer than fifteen Illinois employees. 775 ILCS 5/2-101(B)(1). Multistate does not employ fifteen or more persons in Illinois (a fact admitted by Vitug in his IDHR filing), and thus the IDHR referred Vitug's charge to the Equal Employment Opportunity Commission (the "EEOC") on May 17, 1992. The EEOC subsequently issued a right-to-sue letter in June of 1993 dismissing Vitug's charge and determining that "[t]here is no evidence that [Vitug's] national origin was a factor in [Multistate's] decision to select a non-Filipino to fill the position in question," and that "the evidence obtained during the investigation does not establish a violation of the statute."

On December 16, 1992, Vitug tendered his letter of resignation to Multistate, effective January 1, 1993. In the letter, he stated: "The discriminatory conduct of the Multistate Tax Commission in its selection and promotion processes has caused me severe distress. The circumstances surrounding the denial of my promotion to Field Audit Supervisor has [sic] created a hostile work environment."

Within ninety days of the EEOC's issuance of a right-to-sue letter, on September 1, 1993, Vitug filed this lawsuit in district court, alleging that Multistate's failure to promote him, as well as his subsequent "constructive discharge," constituted unlawful discrimination on the basis of his race and/or national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ² Vitug amended his complaint during the pendency of the proceedings to add a claim that because he is Catholic, while Koenig and Jennings (and presumably Davis) are born-again Christians, his being passed over for promotion and his alleged constructive discharge amounted to discrimination on the basis of his religion as well.

The defendants moved for summary judgment on all counts. In ruling on the motion, the district court first addressed Vitug's claims that Multistate's failure to promote him constituted religious and national origin discrimination. The district court noted that as a condition precedent to maintaining a Title VII action in district court, a plaintiff must file a timely charge of discrimination with the EEOC. See Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993) (quoting Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir.1989)); Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir.1991). Normally, a plaintiff must file his charge with the EEOC within 180 days of the allegedly unlawful employment practice. 42 U.S.C. § 2000e-5(e). But where the plaintiff initially institutes proceedings with "a state or local agency with authority to grant or seek relief from such practice," the charge is timely if filed within 300 days of the discriminatory employment practice. 42 U.S.C. § 2000e-5(e)(1).

Vitug filed his charge of discrimination with the IDHR 294 days after he was denied his promotion. However, because Multistate had fewer than fifteen Illinois employees and thus was not considered by the IDHR to be an "employer" covered by the Illinois Human Rights Act, 775 ILCS 5/2-101(B)(1), the IDHR referred the case to the EEOC. From this, the district court held that the IDHR did not have "authority to grant or seek relief from such practice" as required for a 300-day filing window under § 2000e-5(e)(1). Thus, the court held that Vitug's failure to promote claim was untimely because Vitug had filed his charge with the EEOC outside the applicable 180-day window, and the court granted summary judgment in favor of the defendants on that issue.

Turning to Vitug's claims of discriminatory constructive discharge, the district court held that such claims were timely because Vitug had filed his charge with the IDHR within 180 days of his resignation. However, the court granted summary judgment in favor of the defendants on Vitug's claim that his alleged constructive discharge constituted religious discrimination because Vitug had never filed a charge of religious discrimination with the EEOC and thus had failed to exhaust his administrative remedies. The district court finally reached the merits of what it considered to be Vitug's only procedurally viable claim: that he had been constructively discharged by Multistate and that such discharge had been discriminatorily based on his national origin. Nonetheless, finding that Vitug had adduced no evidence supporting his contention that his alleged constructive discharge was discriminatory either under a disparate impact or a disparate treatment theory of discrimination, the district court granted summary judgment for the defendants on this claim as well.

II. ANALYSIS

We exercise plenary review over a district court's grant of summary judgment, Green v. Shalala, 51 F.3d 96, 99 (7th Cir.1995), and it is well settled that we may affirm the district court's decision on any sufficient basis supported by the record, Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 359 (7th Cir.) (citing cases), cert. denied, 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983). In reviewing a motion for summary judgment, we must consider all facts in the light most favorable to the nonmovant, resolving all inferences in his favor. Kennedy v. United States, 965 F.2d 413, 417 (7th Cir.1992) (citing Mendrala v. Crown Mortg. Co., 955 F.2d 1132, 1139 (7th Cir.1992)); Griffin v. Thomas, 929 F.2d...