nondiscriminatory reasons for terminating him, were pretextual. Pearman has not offered
any evidence from which a rational jury could concluded that Defendant did not honestly
believe its proffered reason for discharging him. See Debs v. Northeastern Illinois Univ.,
153 PF, 3d 390, 396 (7 Cir. 1998)(holding an honest belief in the nondiscriminatory
reason offered by the decision maker will be sufficient cven if the reasons are foolish,
trivial or baseless). To be sure, the EPA should have sent Pearman down to the health
clinic before lunch in accord with their policies but that fact that his supervisor later
followed this policy indicates that Pearman’s supervisor was concerned that Pearman was
under the influence of alcohol and needed medical treatment. Therefore, the Court find
that Pearman has not offered any evidence from which a trier of fact could concluded that
the EPA’s proffered reason for terminating Pearman was a pretext for discrimination.
CONCLUSION

For the reasons set {orth aove the EPA’s motions for summary judgment on Count

T and Count II are granted. This case is hereby terminated. This is a final and appealable

order.

SO ORDERED ENTERED:

TION. RONALD A.
United States Judge

19



January 30, 2001, the Merit System Protection Board affirmed the EPA's decision to
terminate Pearman. (EPA LR56.1] 72.) The Administrative Law Judge found that a
preponderance of the evidence showed that Pearman was under the influence of alcohol,
was sleeping, and had engaged in abusive conduct on February 24, 2000. (EPA LR 56.199]
73, 74 & 75.)
E. Other Facts

Approximately half of the people in Pcarman’s former workgroup are African
American, two thirds were women, and most of his workgroup was at his same
classification level. (EPA LR 56.1980 & 89.) Other workers have come to work smelling
of alcohol and, when discovered by supervisors, have also received disciplinary action; the
two men on the record were white males and were both fired (EPA LR56.1] 64 & 84.)
Pearman has shown no evidence that any other EPA employee was found to be intoxicated
on the job by a supervisor and not fired. (EPA LR 56.19 84 & 85.) No evidence shows
that other workers have fallen asleep or used abusive language with a co-worker and been
caught by a supervisor. (EPA LR56.19 85 & 86.) Another employce filed a complaint
against the EPA and was reinsiated to his same position. (P1. LR56.19 87.)

After the ruling by the Merit Systems Protection Board, Pearman. brought this
action alleging that he was fired due to his race and as an act of retaliation for filing past

complaints and appealing his disciplinary action.

13



Argentieri is the Assistant Regional Counsel in the Office of Regional Counsel. She is an
attorney. (fd), Pearman and Argentieri were working on a superfund case called
Springfield Mercury, wherein the clean up had been completed and Pearman came on the
case to recover costs that had been expended during the clean up. (Plaintiff's LR.
56.1918)

Tom Marks encouraged Plaintiff to communicate more with the Assisant Regional
Counsel who was handling the sites. (Plaintiff's LR. 56.1 | 19) Plaintiff leaned against
Argentieri’s door and called out her name because she was busy working, (Plaintiff's L.R.
56.1 | 20) When Argentieri looked at Plaintiff inquisitively, Plaintiff stated, “Well, you
know who am 7”. (/d.) Plaintiff then proceeded into the office and sat down. (Plaintiff’s
L.R. 56.1 21) Plaintiff told Argentieri that the case should be closed out because there
was no further work that could be done, (/d.) Plaintiff and Argentieri had a disagreement
as to whether to close out the case. (/d.)

Another individual, Eva Hahn who was also an Assistant Regional Counsel, was
present at another desk in the office. (Plaintiff's LR. 56.1 § 22) Eva Hahn shares the
office with Argentieri. (/d.) During the conversation with Argentieri, Argentieri
continued to look past Plaintiff and make eye contact with Hahn. (Plaintiffs L.R. 56.1
23) Feeling that Hahn was trying to listen in, Plaintiff said in a somewhat sarcastic
manner to her, “Are you deaf?” (/d.) Since the conversation with Argentieri was not

going to be resolved between them, Argentieri suggested that their supervisors decide

whether to close out the case, and Plaintiff agreed. (Plaintiffs L.R. 56.1 § 24)



American. Pearman offer$ no statements or admissions from anyone at the FPA or
anywhere else that suggest that his termination was the result of being African-American.
Therefore, because Pearman has no direct evidence of race discrimination and/or
retaliation, he must proceed under the indirect method of proof.

Tt is undisputed that Pearman satisfies elements one and three of his prima facie
case for discrimination and retaliation Pearman is African-American and has in the past
engaged in statutory protected expression, satisfying element one of both prima facie
cases. Also, Pearman, it is undisputed, suffered a materially adverse employment action
when the EPA terminated his employment, satisfying element three.

However, the second element of Pearman’s prima facie case, whether an employee
was meeting his employer's legitimate expectations, has not been satisfied by Pearman, Jt
is undisputed that Pearman throughout his employment at the EPA received satisfactory
job reviews. However, it is also undisputed, that Pearman was disciplined on a number of
occasions while employed by the EPA. Pearman’s disciplinary problems have ranged
from sleeping on the job and taking excessive leave to cursing his supervisor and sexually
harassing a co-worker. Thus, even though Pearman was receiving satisfactory job
performance reviews, it cannot be concluded that he was performing to his employer’s
expectations.

Apart from being unable to show thal he was meeting the EPA's Icgitimate
expectations, Pearman also has not shown that similarly situated employees, who are not

part of the protected class, were treated more favorably. In the final incident prior to his

17



see Argenticri. (EPA LR 56.19 16.) Pearman and Argentieri were both working on the
same case. (EPA LR 56.14 20.) Argenticri had interacted with Pearman before but did not
initially recognize him. Argentieri noticed that Pearman leaned heavily against the door
jam when first talking with her, and then staggered to a chair in her office. She also
noticed a very strong, perfume like odor, which she identified as alcohol, emanating from
Pearman. (EPA LR56.1] 18.) Argentieri claims that Pearman was unable to focus his eyes
on her during their conversation. (EPA LR56.14 19.)

Hahn was also in the office with Argentieri and Pearman, and noticed his physical
behavior and the strong smell coming from him. (EPA LRS6.1 {] 25, 26 & 29.) She also
identified the smell as alcohol. (EPA LR 56.1926.) Pearman began to discuss the case on
which he was working with Argentieri. He told her that she was standing in the way of
closing the case. (EPA LR56.1 20.) Argentieri disagreed, and explained why she thought
differently. Pearman insisted thal Argentieri close the case and appeared to become angry.
(EPA LRS56.19 27.) Eventually, Argentieri ended the conversation by telling Pearman that
their supervisors should decide the matter. Argentieri told Pearman the name of her
supervisor three times, and eventually had to write his name down on a piece of paper. He
then staggered out of the office. (EPA LR56.1§ 29.) The encounter lasted about ten
minutes. (EPA LR56.19 15.) Both Argentieri and Hahn reported feeling frightened and
physically intimidated by Pearman. (EPA LR56.19 21 & 28.) They also both strongly
believed that he was drunk. (EPA LR56.1] 18 & 28) They asked another employee into

their office, and he also noticed a “perfume-like” smell that Pearman had apparently left in



and was confronted by Tom Mark. Marks alleges that Plaintiff was sleeping at his chair.
(Plaintiff's L.R. 56 35)

Wendy Carney alleges that she observed Plaintiff for about five minutes.
(Plaintiff's L.R. 56 7 38) Marks informed Plaintiff that he heard about an incident in
Regional Counsel with Argentieri. (Jd.) Plaintiff followed Marks into a conference room,
wherein Marks proceed to discuss the incident with Argentieri. (Plaintiffs L.R. 56 ] 39)
Plaintiff inquired as to why his discussion with Argentieri was such a major issue.
(Plaintiff's L.R. 56 | 40.) Marks replied that it was purported that Plaintiff had an
argument with Argentieri, (/d.) Plaintiff then requested that he be allowed to seek union
representation. (Plailntiff's L.R. 56.1 | 40.) At this point, Allen Nickel, a human
resources employee, knocked on the door and Marks spoke with Nickels outside the
office, (Plaintiff's L.R. 56.1 41.) When Marks retumed, he stated’ to Plaintiff that
Plaintiff needed to go to the health service office. (/d.) Plaintiff was never told that he
was ordered to go to the health services office because he was intoxicated. (Plaintiff’s
L.R. 56 742.) Plaintiff was never told that Marks believed Plaintiff was sleeping at his
desk. (/d.) Plaintiff did not understand why he had to go to the health service office
because of an argument with Sabrina Argentieri. (Plaintiff's L.R. 56 { 43.) Plaintiff
informed Marks that he had to go to the health service office, then Plaintiff wanted his
union representative with him. (Jd.) Marks stated that Plaintiff did not need one. (/d.)

Plaintiff left the office, and Marks followed him out to the washroom, (Plaintiff's L.R. 56

144.) Plaintiff then went to the fourth floor to locate his union representative, and Marks



Immediately after Plaintiffand Argentieri decided to leave the decision to the supervisors,
Plaintiff left Argentieri’s office. (Plaintifi’s L.R. 56.1 § 25) The conversation with
Argentieri lasted approximately ten minutes. (/@.) During the conversion with Argentier,
Plaintiff only talked about the case they had together. (Plaintiff's L.R. 56.1 26) Plaintiff
did not talk about anything elsc. (/d.) Plaintiff never used any profanity at Argentieri or
anyone else in the room. (Plaintiff's L.R. 56.1 27) Plaintiff never raised his voice.

(/d.) Argentieri stated that she smelled a “sweet perfume-like order” emanating from
Plaintiff. Argentieri then left the office to find another colleague, Mr. Katzback, and
asked him what he smelled. Mr. Katzback stated that he smelled some kind of perfume.

(Plaintiff's L.R. 56.1 28) The perfume-like odor lingered in Argenticri’s office for
several minuets, (Plaintiff's L.R. 56.1 29.) Mr. Katzback never stated that he smelled
alcohol in Argenticris office. (Plaintiff's L.R. 56.1 § 30) After Plaintiff left Argentieris
office, Argentieri wrote a memo and reported to her Section Chief that Plaintiff was
allegedly intoxicated. (Plaintiff's L.R. 56.1 ] 30.) Plaintiff does wear strong cologne
every day. (Plailntiff's L.R. 56 30) After leaving Argentieri’s office, Plaintiff returned
to his desk. (Plaintiff's L.R. 56.1 33.) Plaintiff was to train Rose Lodge on cost
recovery; however, since Rose Lodge was not back from lunch, Plaintiff had some time to
relax. (/d.) Plaintiff put in car plugs which sit in his ears, unlike headphones. (Plaintiff’s
L.R. 56 ¥ 34.) While waiting for Rose Lodge to return, Plaintiff sat at his desk with the

ear plugs in his ears and listened to jazz music. (/d.) While listening to jazz music,

Plaintiff was startled by a tapping on his chait, wherein Plaintiff turned around in his chair



termination, Pearman’s supervisors claim that Pearman was abusive toward his co-
workers, was intoxicated on the job, and fell asleep at his desk. Pearman has presented no
evidence of any other employee has been charged with similar conduct. Although
Pearman makes general allegations that he was treated differently from other employces in
these situations, the failure to name specific employees means that Pearman cannot
establish the fourth element of his prima facie case with respect to these claims. See
Hoffman-Dombrowski v. Arlington Int'l Tacecourse, Inc., 254 F.3d 644, 651 (7" Cir
2001). Even taking Pearman’s assertions as true that other employees at theEPA come to
work intoxicated, Pearman has failed to raisc issues of fact that these individuals were not,
in fact, disciplined, had the history of disciplinary incidences against them, were abusive
to co-workers and/or were asleep on the job. In fact, the EPA itself has provided the only
evidence of other employees who have been caught drinking on the job and it is
undisputed that both of these employees lost their jobs Moreover, even if these facts were
found to be true, the quantity and quality of these alleged compartor’s conduct cannot be
concluded to be similar in light of the conduct Pearman engaged in later that day..
Pearman has not produced evidence that any other employee with a similar disciplinary
record has kept his job.See Peele v. Country Mutual Insurance Co., 288 F., 3d 319, 329 (7"
Cir. 2002); Miller v. Citizen Security Group, Inc. 116 F. 3d 343, 347 (7" Cir. 1997).

Thus, the record demonstrates that Pearman cannot establish a prima facie case of
tace discrimination or retaliation. [lowever, even if Pearman could satisfy his prima facie

case Pearman has not raised an issue of material fact that the EPA’s legitimate

18



health services office. (Plaintiff's L.R. 56.1 951.)

Plaintiff did not consume any alcohol on February 24, 2000. (Plaintiff’s L.R. 56.1
452.) David Ullrich received William Muno’s proposed removal of Plaintiff dated March
20, 2000. (Plaintiff's L.R. 56.1 ] 53.) Mr. Muno’s proposed removal did not state that
Argentieri and Katzback both stated that they smelled some kind of perfume odor, (/d.)
Nor does the proposal state that Argentieri got a third person to come in and smell the
room after Plaintiff left. (/d.)
C. The EPA’s Version of the Events of February 24, 2000

On February 24, 2000, at approximately 11:35 a.m., Pearman called his supervisor,
Thomas Marks, to his desk to discuss a work related matter. Marks noticed that Pearman’s
breath smelled of alcohol and Pearman slurred his words when he spoke. (EPA LR 56.1]
33.) Due to his belief that Pearman had been drinking, Marks told Pearman that he should
eat a good, solid meal at lunch before returning to work. (EPA LR 56.1 4 34.) Marks
breached EPA protocol by not reporting Pearman’s condition to the Health Unit and not
telling Pearman to go there immediately. (EPA L.R. 56.1 34.) EPA rules and policicies
mandate that a supervisor who suspects that an employee is intoxicated should report the
employee’s condition and send the employee to the Health Unit for treatment. (EPA LR
56.1 934.)

At approximately | p.m. that day, Pearman walked into the office of Sabrina

Argentieri, a lawyer for the EPA. (EPA LR56.14 13.) Argentieri shared her office with

another lawyer, Eva Hahn. (EPA LR 56.1424.) Pearman did not have an appointment to



Minute Order Farm (08/97)

OL

United States District Court, Northern District of Illinois

Ki
ange Magisgae dude Ronald A. Guzman “thea Assigned Judge
CASE NUMBER 01 Casts 2LOSY DATE 12/4/2002
CASE Pearman vs. Christine Todd Whitman
TITLE

{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plainti(Y, and (b) stale briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(i) a) Filed motion of [ use listing in “Motion” box above.}

(2) Oo Brief in support of motion due

(3) Qo Answer brief to motion due . Reply to answer brief due.

(4) oO Ruling/Hearing on set for___att

(5) Oo Status hearing[held/continued to} [set for/re-set for]on__set for______ at

(6) a Pretrial conference[held/continued to] [set for/re-set for])on__——ssetfor_— at
(7) Oo Trial[set for/re-set for]on__— at

(8) o [Bench/Jury trial] [Hearing] held/continued lo ____at

(9) oOo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CIFRCP4(m) OLocal Rule 41.1 OFRCP41(a\(1) CO FRCP41(a)(2).

ao = [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER. EPA’s motion for
summary judgment on Count I and Count II are granted. This case is hereby terminated. This is a final
and appealable order.

dl) [For further detail sce order attached to the original minute order.}

No notices required, advised in open court.

No notices required, umber of noriogg

EC 05 2002

Notices mailed by judge’s staff.

Notified counsel by telephone. 0

a | Docketing to mail notices. ,

| Mail AO 450 form.
: oe an yantnstd sn
Copy to judge/magistrate judge. yyndd eg
courtroom yy He a 20
1D deputy's Go vs es

initials

oo Pali cee in
© & cehtéal Clark's Office tailing deputy initials



went to the bathroom, and then went with Marks to the union office. No one was present,
so Pearman and Marks went to the lobby of the building to look for a representative.
Marks then left Pearman. Marks never called the Health Unit to tell them that Pearman
would be coming, or that he believed Peartnan to be intoxicated. (P1. 56.1 4.) Later that
day, Pearman went to the health unit, told the nurse there he had a sinus problem, received
some medicine, and went home. (EPA’s LR56.1 7 42.)

D. Pearman’s Removal from the EPA

On March 1, 2000 the EPA put Pearman on administrative leave due to his
behavior on February 24". (EPA LR56.14 48.) On March 20, 2000 the EPA sent
Pearman a notice of proposed termination. In this notice the EPA cited the events of
February 24 (which it believed consisted of being drunk on the job, sleeping on the job,
and being abusive toward a co-worker), Pearman’s history of disciplinary problems, his
inability to satisfactorily perform his job, and his lack of potential for rehabilitation. (EPA
LRS56.19 51.)

The Deputy Regional Director of the EPA, David Ullrich, was responsible for
deciding this matter. EPA LR56.1f 54.) On April 19, 2000, Ullrich met with Pearman,
Pearman’s counsel, and Peatman’s union representative to discuss the proposed
termination. The parties discussed Pearman’s conduct on February 24, 2000, the
observations of the EPA employees, and the severity of the proposed disciplinary action.
(EPA LR 56.1 $58.) On or about April 27, 2000, Ullrich issued his decision: to remove

Pearman as of May 5, 2000. (EPA LR56.1§ 59.) In making this decision, Ullrich

11


his wake. (/d.) .

The two women reported Pearman’s behavior and their suspicions to their
supervisors, (EPA LR56,19 23 & 30) At 1:30 p.m. that day Marks went to see Pearman at
his desk and found him apparently sleeping. His head was down, resting on his hand and
his eyes were closed. Marks said “hello” to Pearman, but got no response. (EPA L.R. 56.1
9 34.) Marks Icft the area and heard word of the incident with Argentieri, He consulted
with an EPA attomey about what course to follow, and returned to Pearman’s desk.
Pearman did not appear to have moved. (EPA LR56.1{ 35.)

Marks then retrieved Pearman’s second level supervisor Wendy Camey, and they
returned to Pearman’s desk, now around 1:50 p.m. (EPA LR56.19f] 36 & 37.) Pearman
was in the same position as before, and Marks claims that he heard Pearman snoring.
Pearman denies that he was snoring or asleep. (EPA LRS56.1] 37.) Marks shook
Pearman's chair until Pearman lifted his head and looked at him, (EPA LR56.14 38.)
Marks asked him if he was all right, and asked him to talk in private about what had
happened with Argentieri. Pearman said he was fine, and the two men discussed what had
happened. Pearman was incoherent throughout this exchange. Marks smelled alcohol on
Pearman. (EPA LR56,19 39.) Pearman admits that he had his eyes closed and his head on
his arm, but claims that he was not aslcep, just listening to music via a small set of earplug
headphones. (EPA LR56.1 9937, 38 & 39.)

Since Marks believed Pearman to be drunk, he asked him to go to the EPA's health

unit. Pearman refused to go without a union representative. (EPA LR56.19] 40.) Pearman

10



followed him to the fourth-floor. (Plaintiff's L.R. 56.1 944.) When Plaintiff was unable
to locate a union representative, (/d.) Plaintiff then proceeded down to the lobby in order
to get on another set of elevators to the 18" floor to locate an individual who Plaintiff had
been using as a representative. (/d.) Marks followed Plaintiff down to the lobby. (/d.)
Marks alleges that while he followed Plaintiff to the bathroom, to the fourth floor
and down to the lobby that Plaintiff was staggering a great deal and was unstable.
(Plaintiff's L.R. 56.1 445.) Marks then states that as soon as Plaintiff reached the lobby
that Plaintiff was more stable and was in control to walk a straight line because Plaintiff
knew that Marks was watching him. (/d.) The lobby is a public area where there are a lot
of people. (/d.) When Plaintiff was unable to find any union representative, Plaintiff then
went to the health service office. (Plaintiff"s L.R. 56.1147.) Plaintiff informed the nurse
that his supervisor recommended that he come to the health service office, but Plaintiff
was not aware as to the reason why he was sent there. (/d.) Plaintiff stated that the only
things he noticed was that he has a sinus or congestion which was going to make him
drowsy. (Plaintiff's L.R. 56.1 48.) Plaintiff informed the nurse that he only had about
an hour left, so he would put in a leave slip and go home. (/d.) Marks never called the
health service office to inform them that Plaintiff may be coming in to be treated for
intoxication. Prior to February 24, 2000, Marks never referred Plaintiff to the health
service unit for any treatment related to alcohol or drugs or for any other type of

symptoms. (Plaintiffs L.R. 56.1 950.) Tom marks knew that it was the EPA policy to

call and talk to the medical personnel and tell them why an employee is being sent to the



November of 1998, Pearman’s supervisors noticed that he was unstcady on his feet, he
smelled of alcohol, and was slurring his words. (EPA LR56.1 11.) They concluded that
he was drunk, and directed him to go to the EPA's health unit. Pearman refused to go, at
least without a union representative present. (EPA LR56.19 12.) Pearman claims he was
adjusting to new dentures that caused his speech to slur. (EPA LR56.14 11.) The EPA
later concluded that his refusal to go to the health unit demonstrated that he had been
intoxicated, that Mr. Pearman had a chronic problem with alcohol, and that it was unsure
what sanctions could help Mr. Pearman with his problem. (EPA LR56.1{[ 13.)
B. Pearman Version of the Events of February 24, 2000

On or about Iebruary 24, 2000, at about 11:30 a.m. Pearman and Thomas Marks,
Pearman’s supervisor, had a discussion regarding a detailed breakdown of Pearman’s
sites. (Plaintiff's LR 56.1 § 13.) Marks accused Pearman of being ‘intoxicated and
“slurring his words” but did not refer or order Pearman to go to the health service unit in
compliance with Order No. 3120.3A (Plaintiff's Exhibit 1, 914, Ex. 8. .88)(Plaintiff's LR
56.1 9 14.) The EPA’s Order on Employee Alcoholism and Drug Abuse Program, No.
3120.3A, requires all EPA supervisory personnel, to immediately refer any EPA employee
to available medical service for the sole purpose of diagnosis and emergency treatment if
an EPA employee does not appear to be in full control of his or her faculties. (Plaintiff's
LR 56.1 12.)

Al approximately 1:00 p.m. on February 24, 2000, Pearman stopped by Sabrina

Argentieri’s office to discuss a superfund case with her (Plaintiffs L.R. 56.1915). Sabrina



DISCUSSION

A. Standard of Review

Summary judgment is proper “if the pleadings, depositions, answers to the
interrogatories and admissions on file, together 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 a
judgment as a matter of law.” Fed. R. Civ. P. 56(c); Cox v. Acme Health Services, Inc., 55
F. 3d 1304, 1308 (7 Cir. 1995), A genuine issue of material fact exists for trial only, if
after viewing the record and all reasonable inferences drawn from it in a light most
favorable to the non-movant, a reasonably jury could not return a verdict for the non-
movant, Anderson y. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986); Hedberg v./ndiana
Bell Telephone Co., 47 F.3d 928, 931 (7" Cir. 1995).

The movant bears the initial burden of demonstrating that there is no genuinc issue
of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986); Hedberg, 47 F.3d at 931. If
the movant meets this burden, the non-movant must then set forth specific facts to show
that there is a genuine issue for trial, Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. Rule
56(c) mandates the entry of summary judgment against a party “who makes a showing
sufficient to establish the existence of an element essential to that party’s case, and in
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

This standard is applied with added rigor in employment discrimination cases,
where issues of intent and credibility often dominate. See Sursha v. Sears, Roebuck & Co.,

3 F. 3d 1035, 1038 (7 Cir. 1993). “[S]ummary judgmet is improper in a discrimination

14



or engaged in statutorily protected activity (2) was fulfilling his employers legitimate
expectations; (3) was the subject of a materially adverse employment action; and (4)
similarly situated employees outside the protectcd class were treated more favorably.
Wells v, Unisource Worldwide Inc., 289 F.3d 1001, 1006 (7 Cir, 2002) (discrimination),
Hilt-Dyson v, City of Chicago 282 F.3d 456, 465 (7" Cir. 2002) (retaliation). Qates v.
Discovery Zone, 116 F.3d 1161, 1171 (7" Cir. 1997); Lenoir v. Roll Coater, Inc., 13 F.3d.
1130, 1132 (7 Cir, 1994).

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant
to articulate legitimate nondiscriminatory reason for its action. Cowan y. Glen brook
Securities Services, Inc., 123 F.3d 438, 445 (7" Cir. 1997). The burden then shifts back to
the plaintiff to show that the defendant’s reason is in fact pretext for discrimination. Wells
289 F.3d at 1006; Hilt-Dyson 282 F.3d at 465, Bahl v. Royal Indemnity Co., 115 F.3d
1283, 1290 (7 Cir. 1997). In order to meet this burden, the plaintiff cannot just show that
the employer’s reasons were doubtful or mistaken, but must show that its reasons were a
lie and had no basis in fact. Wells 289 F.3d at 1006; Hilt-Dyson 282 F.3d at 465, Crim v.
Board of Education of Cairo School District No. 1, 147 F.2d 535, 541 (,th Cir. 1998);
Johnson vy. City of Fort Wayne, 91 F.3d 922, 931 (7" Cir. 1996); Russell v. Acme Evans,
Co., 51 F.3d 64, 68 (7" Cir. 1995) The ultimate burden of proof remains with the plaintiff
at all times. See Kirk vy. Federal Property Management Corp., 22 F.3d 135, 138 (7" Cir.
1994).

Pearman contends that the EPA terminated him because of his race, African-

16



A. Pearman’s Work History
Pearman has received “satisfactory” work evaluations throughout his time at the EPA.
Only once did he get a different evaluation, receiving a “marginally satisfactory”
evaluation, However, Pearman has been disciplined on a number of occasions while
employed by the EPA. In 1983, he was suspended from work for taking unauthorized
absences. (EPA LR 56.19.3.) In April of 1985, the EPA suspended Pearman for four days
for being absent from work and for general misconduct. (EPA LR56.14 4.) In 1986, the
EPA brought disciplinary charges against Pearman; these charges were disposed of
through a settlement between the EPA and Pearman that required Pearman to receive
treatment for alcoholism at Michael Reese Medical Center. (EPA LR 56.1 2.). Again, in
1989, Pearman was suspended ftom work for taking unauthorized absences, this time for
three days. (EPA LR 56.19 7.)

In 1991, Pearman received an official reprimand from the EPA for sexually
harassing a female co-worker, specifically for touching her inappropriately. (EPA LR
56.19 8.) In 1994, Pearman responded to a question about his request for leave by calling
his supervisor a “stupid mother fucker.” (EPA LR 56.19 9.). After this incident the EPA
suspended Pearman for seven days for insubordination and using abusive language to his
supervisor,

In November of 1997, Pearman received a five-day suspension for sleeping while
on duty and disrupting a staff meeting. (EPA LR56.1 10.) In 1998, Pearman entered into

a settlement with the EPA over another disciplinary incident. (EPA LR56.1 4 6.) In


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION i] OCKE TED

RONALD PEARMAN DEC 05 2002

Plaintiff,

y. No. 01 C2158

CHRISTINE TODD WHITMAN
Administrator, United States
Environmental Protection Agency,

Honorable Judge Guzman

wey yee ye Se ee ES OE

Defendant.

MEMORANDUM OPINION AND ORDER

Pending is Defendant Christine Todd Whitman’s, Administrator Environmental
Protection Agency, motion for summary judgment pursuant to Ved. R. Civ. P. 56. For the
reasons sct forth below this motion is granted.

FACTUAL BACKGROUND

Ronald Pearman has worked for the Defendant Environmental Protection Agency
(“EPA”) in Chicago since 1979, Pearman is African-American. Pearman worked as an
accountant for the EPA until 1989, when he was transferred to the Superfund Division,
There, he worked as an Environmental Protection Specialist, (EPA LR 56.11.) This

position required Pearman to evaluate financial information as part of the EPA's effort to

collect cleanup costs from polluters. (LR56.1f 2.)



evaluated Pearman’s conduct based on five categories: the seriousness of Pearman’s
offenses, the influence of his conduct on employce morale, his potential for rehabilitation,
his prior disciplinary problems, and his job performance over the course of his
employment at the EPA, (EPA LR 56.1 61.)

Ulrich decided that Pearman should be fired due to his behavior on February 24,
2000, which included drunkenness on duty, abusive behavior with co-workers, and
sleeping on duty, He also cited Pearman’s carlier disciplinary actions, at least one of
which was alcohol related, and the lack of improvement in his conduct. He also
considered Pearman’ s satisfactory job performance. (EPA LR 56.19 62.) Pearman had
worked under Ullrich previously. When Pearman filed a complaint and had requested to
he reassigned out of the finance unit in 1992, he was placed in a division where Ullrich
was the director.

Ullrich assigned Pearman tasks that were below his job status. (EPA LR56.1 66.)
Ulrich claims that his decision to fire Pearman was not influenced by Pearman’s filing of
Union grievances, (EPA LR 56,19 66.) The EPA fired Pearman on May 5, 2000.

On June 5, 2000, Pearman filed a notice of appeal of his termination with the Merit
Systems Protection Board, (EPA LR 56.1 68.) Pcarman’s hearing was on September 14,
2000 and lasted one full day; an administrative law judge conducted the hearing, and
Pearman had an attorney present. (EPA LR 56.1969) At the hearing the EPA brought five
witnesses, Sabrina Argentieri, Eva Hahn, Tom Marks, Wendy Carney, and David Ullrich.

(EPA LR56 {| 70.) Pearman was the only witness for his side. (EPA LR56.14 71.) On

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case where a material issuc involves any weighing of conflicting indications of motive and
intent.” Kephart v. Inst. of Gas Tech,, 630 F, 2d 1217, 1218 (7" Cir. 1980).
B, Retaliation And Discrimination

Pearman has claimed race discrimination under Title VII of the Civil Rights Act of
1964, as amended 42 § U.S.C. 2000¢ ef seg. in Count I of his complaint and retaliation in
Count II. Title VII makes it illegal for an employer to discriminate against an employee
because of the employee's race. 42 § U.S.C. at 2000e-2(a)(1). A plaintiff suing under
Title VII must prove that he was a victim of intentional discrimination. St. Mary 's Honor
Center v. Hicks, 509 U.S. 502, 509 (1993).

In setting forth a racial discrimination claim, a plaintiff may pursue two “distinct
evidentiary paths.” Kormoczy v, Secretary, US. Dept. of HUD, 53 ¥.3d 821, 824 (7" Cir.
1995). On the one hand, he may choose to present direct evidence of discriminatory
intent. Essex v. United Parcel Service, 111 F.3d 1304, 1308 (7" Cir. 1997). Alternatively,
he may utilize an indirect method to raise an inference of an illegal motive, which
involves a burden-shifting method established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 41] U.S, 792, 802-803 (1973) and Stone v. City Indianapolis
Public utilities Division 281 F.3d 640, 644 (7" Cir. ) (retaliation). The first step for the
plaintiff under the McDonnell Douglay method is to establish a prima facie case of race
discrimination. Gonzalez v, Ingersoll Milling Machine Co., 133 F.3d 1025, 1032 (7" Cir.
1998); Pasqua v. Metropolitan Lfe Ins. Co., 101 F.3d 514 at 516. To establish a prima

facie case of race discrimination, the plaintiff must show that he is (1) in a protected class;

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