answercd that “he was the only male [in the department].” (Neal Dep. Tr, at 118:5-11 (App.
Supp. Def.’s Mot. Summ. J. at Tab A).) When asked why Neal felt he was denied the promotion
based on race, he responded, “T don’t have an answer at this particular time for that.” (Id. at
118:23 - 119:6.)

Facts Relating to Claim for Failure to Pay Neal for Time Spent at Grievance
Hearing & Emotional Distress Claims

Ingalls has an employee grievance procedure which allows employees to address a variety
of concerns regarding the workplace. Ingalls’ Director of Human Resources, Chris Hargreaves,
oversecs and coordinates the grievance process. As part of that process, an employee may
choose one “support person” to attend the grievance hearing. Under the grievance procedure
there is no requirement to pay an employee for time spent at a grievance hearing as a support
person. Further, Hargreaves has never authorized payment for any individual acting as a support
person.

In April 2000, Ingalls’ cmployee Sheila Joyner asked Neal to act as her support person,
which he agreed to do. When Neal asked Hargreaves (both before and after Joyner’s grievance
hearing) whether he would be paid for the two hours he spent as Joyner’s support person,
Hargreaves told him that the procedures did not require Neal to be paid for that time. Neal
testified at his deposition that he did not think Hargreaves discriminated against him on the basis
of either gender or race when Hargreaves decided not to pay him for time spent as Joyner’s
support person.

On December 4, 2000, Neal filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”). He filed his complaint in this court on May 29, 2001.


conclude that it is not a contract.” Freeman v. Chicago Park Dist., 189 F.3d 613, 617 (7th Cir.
1999); see, e.g., Davis v. Time Mirror Magazines, Inc., 697 N.E.2d 380, 388 (Ill. App. Ct. 1998)
(disclaiming language in handbook precludes contract formation).

Without a valid and enforceable contract, Neal has no breach of contract claim. See
Nielsen v. United Servs. Auto, Ass'n, 612 N.E.2d 526, 529 (Ill. App. Ct. 1993) (valid and
enforceable contract is cssential element of breach of contract claim), The court therefore need
not consider whether any disputed issue of material fact exists regarding breach or damages.

D. State Law Claims for Negligent/Intentional Infliction of Emotional Distress

Regarding Neal’s claims for negligent and/or intentional infliction of emotional distress,
it is not clear from the complaint that Neal even raised these claims. In his prayer for relicf, as
part of his request for compensatory damages, Neal merely asked for compensation for “personal
humiliation, mental anguish and suffering and other forms of mental and emotional distress.”
(Compl. at 5.) Where there is a viable racial or gender discrimination claim, such compensatory
damages are available-- plaintiffs need not bring emotional distress tort claims to recover for
mental and emotional damages. Thus, had Ingalls not addressed the emotional distress claims in
its motion for summary judgment, the court would not have considered the emotional distress
torts to be at issue in this case. Because the partics briefed those claims, however, the court will

address the parties’ arguments.

‘Neal’s reliance on Doyle y, Holy Cross Hospital, 708 N.E.2d 1140, 1145 (Ill. 1999), is to
no avail because that case is distinguishable. Significantly, the Doyle court did not hold that
disclaiming language is never effective. Rather, based on the particular facts presented, the court
found that the disclaiming language, which the employer added to the handbook, was an invalid
unilateral modification by the employer that lacked consideration. /d. at1145. In contrast, Neal
offers no basis for the court to find Ingalls’ express disclaimer invalid.

9



§ 1981 claim, Neal had two years from the discriminatory action to bring his claim. See
Goodman v. Lukens Steel Co., 482 U.S. 656, 660-64 (1987) (state’s statute of limitations for
personal injuries governs § 1981 claims); Sanders v. Venture Stores, Inc., 56 F.3d 771, 775 n.2
(7th Cir. 1995) (llinois’ statute of limitations for personal injury claims is 2 years). Here, the
statute of limitations began to run no later than February 22, 1999 when Karen Matthews took
over the Lead Technician position. Neal therefore should have filed his EEOC charge no later
than December 19, 1999, yet he did not filc it until December 2000. Likewise, he needed to file
his § 1981 claim no later than February 22, 2001—but Neal did not file his complaint in this
litigation until May 29, 2001.

Neal thus missed the two relevant statutes of limitations by a substantial amount of time.
He does not assert any grounds for tolling the statutes of limitations. Rather, Neal contends his
federal claims for failure to promote are not time-barred because they fall within an exception to
the statute of limitations, i.e., the continuing violation doctrine, Under the continuing violation
doctrine, as long as an act contributing to a hostile work environment claim occurs within the
statute of limitations, “the entire time poriod of the hostile environment may be considered by a
court for purposcs of determining liability.” National Passenger Railroad v. Morgan, __ U.S.
__, 122 8. Ct. 2061, 2074 (2002). Significantly, as the Supreme Court recently clarified, the
continuing violation doctrine applics to hostile work environment cases, not to claims regarding
discrete acts of discrimination. /d, at 2073. “Discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely filed charges.” Jd. at 2072. And

Ingalls’ alleged failure to promote Neal clearly constitutes a discrete discriminatory act, Jd. at

2073 (discrete acts include “terminations, failure to promote, denial of transfer, or refusal to



Analysis

Summary judgment is proper only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, (ogether with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). The court must examine the admissible evidence in the light most
favorable to the nonmoving party and draw all reasonable inferences in favor of that party,
Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate if
the nonmoving party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “[U]nless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party,” there is no issue for
trial. Anderson, 477 U.S. at 248.

A. Discrimination Claims Based on Failure to Promote

Neal’s gender and racial discrimination claims based on Ingalls’ alleged failure to
promote him to the Lead Technician position fail for two reasons: the claims are time-barred and
Neal has failed to establish a prima facie case of cither gender or racial discrimination.

As a prerequisite to bringing his Title VII claim, Neal had to file a timely charge of
discrimination with the EEOC. Cervantes v. FCC Nat'l Bank, No. 98 C 6730, 2000 WL 283973,
at *3 (N.D. Ill. Mar. 14, 2000). “In Mlinois, a Title VII plaintiff must file a charge within 300

days of the discrimination. The 300-day limitation period commences on the date the employce

learned of or should have leamed of the allegedly discriminatory actions.” /d. Regarding his



Joyner’s grievance hearing as her support person also fails as a matter of law: he cannot show
that either similarly-situated women, or similarly-situated white people reccived better treatment
than he did. It is undisputed that Ingalls’ grievance policy does not require payment to an
employec for time spent at a gricvance hearing as a support person. Nor has Hargreaves ever
authorized payment for any individual—white or black, male or female—for time served as a
support person. Further, Neal testified that he did not think Hargreaves discriminated against
him on the basis of either gender or racc when Hargteaves decided not to pay Neal for time spent
as Joyner’s support person. Given Neal’s failure lo offer any evidence of disparate treatment, his
claim cannot survive. See Greer v. Bd. of Educ., 267 F.3d 723, 728 (7th Cir. 2001) (affirming
summary judgment against plaintiff who failed to offer evidence of disparate {rcatment).

Cc. State Law Breach of Contract Claim

Neal’s state law breach of contract claim fares no better than his federal claims. Neal
asserts that (1) Ingalls’ employee handbook constitutes an employment contract, and (2) Ingalls
breached that contract by (allegedly) failing to follow the job-posting policy sct forth in the
handbook when it posted the opening for the Lead Technician position. The fatal flaw in this
claim is that Ingalls’ employee handbook is not a contract: for such a handbook to constitute an
enforecable contract, “the traditional requirements for contract formation [must be] present.”
Duldulao v. St. Mary of Nazareth Hospital Center, 505 N.E.2d 314, 318 (Ill. 1987), Here, “[tJhe
employee handbook specifically disclaims that it is a contract, and the handbook itself is the best

evidence of whether the parties intended to form a contract. [The court] need[s] nothing morc to


Minute Order Four (05/97)

Are

United States District Court, Northern District of Illinois

Nume of Assigned Judge Sitting Judge if Other
or Magistrate Judge Joan B. Gottschall than Assigned Judge
CASE NUMBER 01 € 3939 DATE 2/5/2003
CASE John Neal vs. Ingalls Memorial Hospital
TITLE
[In the fullowing box (a) indicate the party filing the motion, ¢-g., plaintiff, defendant, 3rd party plaintiff, and (bh) slate briefly the nature
MOTION: of the motion being presented. |
DOCKET ENTRY:
(1) o Viled motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due .
(3) ia] Answer brief to motion due. . Reply to answer brief due.
(4) im} Ruling/Ilearing on set for at
(5) oO Status hearing[held/continued to] [sct for/re-set for] on set for at
(6) i) Pretrial conterence[held/continucd to] [set for/re-set for] on __ set for at
(7) oO ‘Teial[set for/re-set for]on_—|__at
(8) oOo [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreemenv/pursuant to]
CUFRCP4(m) Ci Local Rule 41.1 OFRCP41(a)\(1) C1 FRCP41(a)(2).
co) «xi [Other docket entry] Enter Memorandum Opinion and Order. Plaintiff's motion for leave to file
local rule 56.1 response and brief in opposition to summary judgment [18-1] is granted; defendant’s
motion to strike plaintiff's response to motion for summary judgment [22-1] is denied. Defendant’s
motion for summary judgment [12-1] is granted, Casc terminated.
(it) a {or further detail see order attached to the original minute order.]
No notices required, advised in open court. Mi { 1
i
No notices required, sunper abate if iC Ee
Notices mailed by judge’s staff.
Notified counsel by telephone.
| Docketing to mail notices, .
Mail AO 490 form. ° , ail
Copy to judge/magistrate judge.
é
courtroom: ate railed novice
deputy’s
[MM wr initials
Dale/time received in
egntral Clerk's Office ing deputy iii



intend that situation.” Jd. at *12 (emphasis added, internal quotation marks and citations
omitted). Understandably, most claims for negligent infliction of emotional distress stem not
from claims like Neal’s but from accidents or offensive touching. Choi v. Chase Manhattan
Mortgage Co., 63 F. Supp. 2d 874, 888 (N.D. Ill. 1999). Given Neal’s failure to offer evidence
relating to any of the necessary elements for a negligent infliction of emotional distress claim, he
has also failed to show that any disputed issue of material fact exists with respect to this claim.
Conclusion

As explained above, Ingalls’ motion for summary judgment is granted.

ENTER:

afl

f. va
JOAN B/GOTTSCHALL
United States District Judge

DATE: February 5, 2003

Under Mlinois law, direct victims of negligence and bystanders who were in the zone of
physical danger may have claims for negligent infliction of emotional distress. Chen, 2002 WL
1632414 at *11. For purposes of this discussion, the court treats Neal as a direct victim rather
than a bystander.

ll



According to Neal, he claims that in breaching the “contract” regarding open job
positions, Ingalls intentionally or negligently inflicted emotional distress on him. But there are
no allegations in the complaint, let alone any evidence in the record, to support these claims. For
intentional infliction of emotional distress, Neal would have to prove that Ingalls’ conduct
(evidently through Dchmer) was extreme and outrageous, that Ingalls intended its conduct to
cause Neal severe emotional distress and that its conduct did, in fact, cause severe emotional
distress. Harriston v. Chicago Tribune Co., 992 F.2d 697, 702 (7th Cir. 1993), “[T]he law
intervenes only where the distress inflicted is so severe that no reasonable [person] could be
expected to endure it.” Jd. at 703 (internal quotation marks omitted). Because Neal offers no
affirmative evidence regarding any of those elements, he cannot show therc is a dispute issue of
material fact regarding his claim for intentional infliction of emotional distress. His claim
therefore fails as a matter of law.

Nor does Neal present a viable claim for negligent infliction of emotional distress. To
recover for negligent infliction of emotional distress, Neal must provide evidence that Ingalls
owed him a duty, Ingalls breached that duty, and as a result of that breach, Neal suffered
cmotional distress. See Chen v. Mayflower Transit, Inc., No. 99 C 6261, 2002 WL 1632414, at
*11 (NLD. IIL July 22, 2002). But more importantly, to survive summary judgment Neal must
produce evidence demonstrating that as a result of Ingalls’ alleged negligence, Neal experienced
“some form of physical danger or harm as the catalyst for the resulting cmotional trauma.
Otherwise the scope of recovery for negligent infliction of emotional distress would be

coterminous with recovery for negligence itself. The Illinois Supreme Court clearly did not

10



hire”), Accordingly, the continuing violation doctrine is inapplicable to Neal’s failure to promote
claim.

Moreover, even if the continuing violation doctrine did apply, Neal has not established
the existence of a disputed issue of material fact. Rather, Neal claims that ifhis claim is allowed
to procecd, he is “prepared to demonstrate that he is a victim of a scrial violation and that
[Ingalls] has maintained a pattem and practice of discrimination [against Neal].” (Pl.’s Mem.
Opp. Mot. Summ. J. at 3.) But as Ingalls correctly points out, Neal can survive summary
judgment only if he supports this contention with evidence from the record, which Neal has
utterly failed to do. Given Neal’s failure to offer any supporting evidence, the court finds there is
no disputed issue of material fact regarding whether such a pattern of discrimination and
harassment exists.

Even putting aside Neal’s statute of limitations problems, he has failed to establish a
prima facie case of cither racial or gender discrimination. Neal cannot establish a prima facie
case for his failure to promote claim, unless he shows that (1) he is a member of a protected
group; (2) he applied for and was qualified for the Lead Technician position; (3) he was rejected
for the position; and (4) Matthews, who was hired for the position, was not more qualified than
Neal. Brill v. Lante Corp., 119 F.3d 1266, 1270 (7th Cir, 1997). Neal, however, concedes that
he never applied for the Lead Technician position. His failure-to-promote claims therefore fail as
a matter of law.

B. Discrimination Claims Based on Failure to Pay Neal for Time Spent at
Grievance Hearing.

Neal’s discrimination claim based on Ingalls’ failure to pay him for the time spent at


department’s bulletin board regarding the vacant Lead Technician position, stating that anyone
interested should sec her, The notice evidently did not include the entry level pay rate or a job
description for the position.

Neal and three other sterile processing technicians subsequently spoke 19 Dehmer about
the Lead Technician position. None of them applied for it.? Because no one within the
department applied for the position, Ingalls made the job available to employees in other
departments.? No hospital employees bid for the position, however, so Ingalls opened the
position to the public.* Ingalls ultimately hired Karen Matthews, who was qualified for the job,
and also was the only person who applied for the position.’ No later than February 22, 1999,
Neal knew that Ingalls hired Matthews for the Lead Technician position. He did not know what
Matthews’ qualifications were for the position.

At his deposition, Neal was asked to explain the basis for his gender and racial

discrimination claims. When asked why he felt discriminated against based on gender, Neal

2% response to paragraph 14 of Ingalls’ L.R, 56.1(a)(3) statement of undisputed material
facts, Neal admitted that he did not apply for the position, but denied the statement with respect
to the other three technicians, claiming lack of knowledge. Ncal’s lack of knowledge is
insufficient to refute the affidavit offered by Ingalls in support of paragraph 14. Accordingly,
paragraph 14 is deemed admitted under L.R. 56.1.

>This fact is also deemed admitted: Neal’s denial based on lack of knowledge is
insufficient to refute the affidavit offered by Ingalls in support of this fact.

‘Decmed admitted: sce footnote 3.

‘Deemed admitted: Neal claims the bid process was manipulated to prevent Neal and
others from applying for the position, but offers no evidence other than his unsupported
speculation; again, this is insufficient to refute the affidavit offered by Ingalls in support of this
fact.



is granted.

Background

The following facts are undisputed unless otherwise noted. Neal, a current Ingalls
employee, has worked for the hospital since 1984 when he started as a housekeeper. Neals later
held other positions at Ingalls: he worked as a “stores attendant,” then as a technician in the
Central Processing Distribution Department and, most recently, as a technician in the Sterile
Processing Department.

Facts Relating to Neal's Claim for Failure to Promote & Breach of Contract

Ingalls has an employee handbook that offers a general description of some of the
hospital's benefits and policics. On the first page of the employee handbook, there is an express
disclaimer which states: “This handbook is provided only as an advisory guide and is not, nor is
it intended to be, a contract of employment.” (PI.’s Ex. List, Tab B at 1.) The specific provision
at issue in this case relates (o the posting of job vacancies. On that issuc, the handbook states in
relevant part: “Job openings are posted on the Employee Bulletin Boards in the hospital . . . Job
postings list the entry level rate of pay, however, employees may be considered for a rate above
the minimum based upon length of service and related experience.” (/d. at 27.)

In late 1998, the Lead Technician position became available in the Sterile Processing
Department. The Lead Technician is expected to perform many of the same duties as other
sterile processing technicians, but also must handle additional scheduling, inventory and
supervisory duties. In accordance with the hospital’s job posting policy, in late 1998 or early

1999, the manager of the Sterile Processing Department, Cathy Dehmer, posted a notice on the


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
. te ye
\ i tS
JOHN NEAL, ,) <“®
)
Plaintiff, J Case No. 01 C3939
v. )
) te”
INGALLS MEMORIAL HOSPITAL, ) Judge Joan B. Gottschal!
)
Defendant. )

MEMORANDUM OPINION & ORDER

Plaintiff John Neal sued his employer defendant Ingalls Memorial Hospital (“Ingalls”)
claiming that Ingalls (1) discriminated against him bascd on his race and gender by denying him
a promotion and failing to pay him for time spent at a grievance hearing, in violation of 42
U.S.C. § 1981 (race claim) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)
(race and gender claims), and (2) breached an employment contract with him by allegedly failing
to comply with provisions in the employee handbook when Ingalls posted a job vacancy, in
violation of Iinois state law. Additionally, although it is not evident from the complaint,
according to the parties’ briefs Neal also may have raised claims of intentional and negligent
infliction of emotional distress under Illinois state law. Ingalls filed a motion for summary

judgment on all claims.’ For the reasons set forth below, Ingalls’ motion for summary judgment

‘Ingalls also filed a motion to strike Neal’s late opposition to the motion for summary
judgment. Ingalls’ motion is well-grounded: Neal failed to comply with several court-ordered
deadlines, even when the court gave Neal a final exiension. The court is unsympathetic to Neal's
excuses and could properly grant Ingalls’ motion to strike, see Spears v. City of Indianapolis, 74
F.3d 153, 157-58 (7th Cir, 1996), But the court prefers to deal with the motion for summary
judgment on the merits. Accordingly, Ingalls’ motion to strike Neal's opposition brief is denied
and Neal’s motion for leave to respond to the motion for summary judgment instanter is granted.