Next, with regard to issue of pretext, Lochard avers that Klima’s proffered sole reason (i.e.,
Lochard’s demeanor and standoffishness) for not hiring him is an after-the-fact pretext for its action
in light of Klima’s written comment on the Applicant Interview Guide stating: “Heavy accent very
hard to understand 4 Question had to have him repeat answer.” (PI.’s Resp. at 13, Pl.’s Ex. 1 at
000010.) In addition, Lochard contends that the proffered sole reason is a pretext given that Klima
referenced Lochard’s accent instead of simply noting his inability to understand some of the answers
Lochard gave during the interview. (PI.’s Resp. at 13.) Accordingly, Lochard asserts that Klima’s
proffered sole reason is impeached by Klima’s failure to mention the Applicant Interview Guide in
his declaration and, moreover, by the act of Klima “hiding from his notations regarding Mr.
Lochard’s accent.” (/d. at 13.)

“Pretext ... means a lie, specifically a phony reason for some action.” Plair, 105 F.3d at 348;
see also O’Connor v, DePaul University, 123 F.3d 665, 671 (7" Cir. 1997)(“On the issue of pretext,
our only concern is the honesty of the employer’s explanation . . .”); Tincher v. Wal-Mart Stores,
Inc., 118 F.3d 1125, 1130 (7" Cir. 1997)(“The pretext inquiry focuses on the honesty — not the
accuracy ~ of the employer’s stated reason for the [adverse job action].”) A plaintiff need only
“produce evidence from which a rational factfinder could infer that [the employer] lied about its
proffered reasons...” Weisbrot v. Medical College of Wisconsin, 79 F.3d 677, 682 (7" Cir. 1996).
Moreover, “{t]he fact that the employer was mistaken or based its decision on bad policy, or even
just plain stupidity, goes nowhere as evidence that the proffered explanation is pretextual.” Essex
v. United Parcel Service, Inc., 111 F.3d 1304, 1310 (7" Cir. 1997). A plaintiff may establish pretext
by proving one of the following: “(1) the proffered reasons are factually baseless; (2) the proffered

reasons were not the actual motivation for the [adverse action]; or (3) the proffered reasons were

14


maker that his actions were based on the prohibited animus.” Radue v. Kimberly-Clark Corp., 219
F.3d 612, 616 (7" Cir. 2000)(citing Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7" Cir.
1994)). Thus, a proffer of direct evidence “must not only speak directly to the issue of discriminatory
intent, it must also relate to the specific employment decision in question.” Cowan v. Glenbrook
Security Services, Inc. 123 F.3d 438, 443 (7" Cir. 1997)(quoting Randle v. LaSalle
Telecommunications, Inc., 876 F.2d 563, 569 (7 Cir. 1989)). “[I]nappropriate but isolated
comments that amount to no more than ‘stray remarks’ in the workplace will not do.” Venters v. City
of Delphi, 123 F.3d 956, 973 (7" Cir. 1997)(citing Randle, 876 F.2d at 569)); see also Cowan, 123
F.3d at 444 (“stray remarks in the work place, while perhaps probative of sexual harassment [here
race], . . . cannot justify requiring the employer to prove that its hiring or firing or promotion
decisions were based on legitimate criteria.”)(quoting Price Waterhouse v. Hopkins, 490 U.S. 228,
277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)). Rather, “isolated comments must be
contemporaneous with the [adverse action] or causally related to the [applicable] decision-making
process.” Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7" Cir. 1996)(citing Price Waterhouse, 490
U.S. at 277, 109 S.Ct. 1775, 104 L.Ed.2d 268). This type of evidence is rare. Rogers, 320 F.3d at
753; Volovsek v. Wisconsin Dep’t of Agriculture, Trade and Consumer Protection, 344 F.3d 680,
689 (7" Cir. 2003).4

Direct evidence can also be proven by constructing a “convincing mosaic” of circumstantial

evidence that allows a jury to infer intentional discrimination on the part of the decisionmaker.

4Other cases also hold that ‘{r]emarks and other evidence that reflect a propensity by the
decisionmaker to evaluate employees based on illegal criteria will suffice as direct evidence of
discrimination even if the evidence stops short of a virtual admission of illegality.” Sanghvi v. St.
Catherine's Hosp., Inc., 258 F.3d 570, 574 (7" Cir. 2001) and cases cited therein.

5


at 568 (“Direct evidence would include statements by the employer to the employee that s/he was
being fired because of age.”)(quoting Maxfield v, Sinclair Int'l, 766 F.2d 788, 791 (3 Cir. 1985)).'°

The Court further finds that the subject statement noting Lochard’s heavy accent does not
constitute circumstantial evidence that would allow a trier of fact to infer that Provena intentionally
discriminated against Lochard on the basis of his race when he was not hired to fill one of the
Security Officer positions. See e.g., Rhodes, 359 F.3d at 504; Volovsek, 344 F.3d at 689. As
discussed supra, Klima’s written statement does not point directly to a discriminatory reason for
Provena deciding not to hire Lochard and, moreover, the statement cannot be viewed as being
directly related to the employment decision. See e.g., Rhodes, 359 F.3d at 504; Venturelli, 350 F.3d
at 602. Accordingly, Klima’s written statement does not constitute circumstantial evidence of
discriminatory intent on the part of Provena.

Lochard has also failed to demonstrate a mixed motive theory under Title VII. Specifically,
Lochard cannot establish that race, the alleged illegal criterion, was a motivating factor in Provena’s
decision not to hire him. Herein, as discussed, Klima’s written statement does not constitute direct
evidence of discriminatory intent on the part of Provena because it is a facially innocuous statement
which simply notes Klima’s heavy accent and his difficult in understanding Lochard’s responses to
the questions he asked during the January 29, 2003 interview.

Therefore, the Court finds Lochard’s contentions that Klima’s written statement on the
Applicant Interview Guide constitutes direct evidence or evidence that would fit within a mixed

motive rubric without merit because the subject statement does not rise to the level of that which

‘It also bears noting that there has been no admission by Klima or Provena that Lochard
was not hired to fill one of the Security Officer positions because of his race.

10


on the part of Provena. (Pl.’s Resp. at 2-7.) Specifically, Lochard contends that a mixed motive
theory applies herein because his protected class, which is African-American, was a motivating
factor in Provena’s decision not to hire him to fill one of the Security Officer positions. (/d. at 2-3.)
Lochard thus alleges that Provena’s allegedly sole purported reason for not hiring him is in fact false.
(/d. at 3.) For example, Klima, Provena’s Security Department Supervisor, who interviewed Lochard
and decided not to hire him, stated the following in a sworm declaration:

“My decision not to select [Lochard] for one of the Security Guard positions was

solely based on [his] demeanor and ‘standoffishness’ during the interview process.”

(Klima Decl. 16; Pl.’s Resp. at 4.)

Lochard contends, however, that the problem with Klima’s declaration statement is that it
is unsupported and materially contradicted by Klima’s notation referencing Lochard’s heavy accent
on an Applicant Interview Guide® which Klima completed at the time he interviewed Lochard on
January 29, 2003 and by a March 4, 2003 letter’ sent to Lochard informing him of his denial of

employment. (PI.’s Resp. at 4-6, Pl.’s Ex. 1 & 3.) Klima made the following notation under the

Interviewers Impressions section of the Applicant Interview Guide: “Heavy accent very hard to

°Klima completed an Applicant Interview Guide form when he interviewed Lochard.
(P1.’s Ex. 1 at 000009-10.) The Applicant Interview Guide lists relevant job questions and the
responses Lochard gave during his interview with Klima. (/d. at 000009.) Moreover, the
Applicant Interview Guide contains a chart where Klima rated Lochard’s personal characteristics
(i.e., personal appearance; poise, manner; communication; and cooperation with interviewer) and
job-related characteristics (i.e., experience for job; knowledge of job; people skills; and outgoing
personality) using a scale of one to four. (Jd. at 000010.) The Applicant Interview Guide also
required Klima to provide an overall rating of Lochard using a scale of one to five and provided a
comment section. (/d.)

"The March 4, 2003 letter states, in pertinent part: “We have decided on another candidate
for the Security position, we will keep your application o[n] file in case another position opens
that fits your needs.” (PI.’s Ex. 3.)


Rhodes, 359 F.3d at 504 (citing Troupe, 20 F.3d at 737); Volovsek, 344 F.3d at 689 (citing Rogers,
320 F.3d at 753). The circumstantial evidence, however, “must point directly to a discriminatory
reason for the employer’s action” Rhodes, 359 F.3d at 504 (quoting Adams v. Wal-Mart Stores, Inc.,
324 F.3d 935, 939 (7" Cir. 2003)) and be “directly related to the employment decision.” Venturelli
v. ARC Community Services, Inc., 350 F.3d 592, 602 (7" Cir. 2003)(quoting Gorence v. Eagle Food
Centers, Inc., 242 F.3d 759, 762 (7" Cir. 2001)).

Ifa plaintiff can demonstrate that an illegal criterion such as race was a motivating factor in
the adverse employment action, the burden shifts to the employer to demonstrate that it would have
made the same decision even if the illegal criterion had not been considered. Venters, 123 F.3d at 973
(citing Price Waterhouse 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268). “The persuasiveness of
that showing will normally be for the finder of fact to assess, unless the court can say without
reservation that a reasonable finder of fact would be compelled to credit the employer’s case on this
point.” /d. (citations omitted.) If the employer, however, succeeds in proving that it would have
made the same decision absent the illegal criterion, a plaintiff may still obtain declaratory and
injunctive relief as well as attorney’s fees. See id. at n.7.

Lochard avers that there is direct evidence in this case which establishes race’ discrimination

SLochard also alleges discrimination on the basis of color in his complaint of employment
discrimination filed on June 5, 2003. (Dkt. No. 1.) His color discrimination claim, however,
cannot be considered by the Court because it was not included as part of Lochard’s EEOC
Charge of Discrimination. (/d.) See e.g., Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7"
Cir. 1992)(““An aggrieved employee may not complain to the EEOC of only certain instances of
discrimination, and then seek judicial relief for different instances of discrimination.”),; Babrocky
v. Jewel Food Co., 773 F.2d 857, 863 (7" Cir. 1985)(“[T]he requirement that the scope of the
EEOC charge limit the scope of the subsequent complaint is in the nature of a condition
precedent with which litigants must comply rather than constituting a component of subject
matter jurisdiction.”).


1030 (7" Cir. 2000). Accordingly, because Lochard has not pled a national origin discrimination
claim under Title VII in either his complaint of employment discrimination or his EEOC Charge of
Discrimination, Klima’s reference to Lochard’s heavy accent on the Applicant Review Guide is
inapposite and cannot be viewed as constituting direct evidence of race discrimination.

Next, the Court finds that Klima’s written statement: “Heavy accent very hard to understand
4 Question had to have him repeat answer” by itself does not constitute direct evidence of
discriminatory intent or conduct on the part of Provena. Rather, as demonstrated by Seventh Circuit
case law, direct evidence of discrimination is evidence which proves discriminatory conduct without
reliance on inference or presumption. See e.g., Cerutti, 349 F.3d at 1061. Moreover, an isolated stray
comment or remark, without more, is typically not actionable under Title VII. See e.g., Cowan, 123
F.3d at 444 (“stray remarks in the work place, while perhaps probative of sexual harassment [here
race], . . . cannot justify requiring the employer to prove that its hiring or firing or promotional
decisions were based on legitimate criteria”)(quoting Price Waterhouse, 490 U.S. at 277, 109 S.Ct.
1775, 104 L.Ed.2d 268); Venters, 123 F.3d at 973 (“[I]nappropriate but isolated comments that
amount to no more than ‘stray remarks’ in the workplace will not do.”)(citing Randle, 876 F.2d at
569). Klima’s written statement consisted of no more than an isolated stray remark noting Lochard’s
heavy accent and the fact that he had difficulty understanding Lochard during the interview.
Accordingly, because the proffered evidence neither speaks directly to the issue of discriminatory
intent, nor relates to the employment decision at issue, it does not constitute direct evidence of
intentional discrimination on the part of Provena. See e.g., Cowan, 123 F.3d at 443; see also Radue,
219 F.3d at 616 (“[d]irect evidence essentially requires an admission by the decision-maker that his

actions were based on the prohibited animus.”)(quoting Troupe, 20 f.3d at 736); Randle, 876 F.2d


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

EASTERN DIVISION
)
PAUL LOCHARD, )
)
Plaintiff, )
) Case No. 03 C 3835
v. )
) Magistrate Judge Ian H. Levin
PROVENA SAINT JOSEPH )
MEDICAL CENTER, )
)
Defendant. )
)

MEMORANDUM OPINION AND ORDER

Plaintiff Paul Lochard (“Lochard”) seeks recovery against Defendant Provena Saint Joseph
Medical Center (“Provena”) for race discrimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000¢ et seg. Before the Court is Provena’s motion for summary judgment. For
the reasons set forth below, the Court grants Provena’s motion.

BACK‘ ‘ACTS

On September 9, 2002, Lochard', who is an African-American, applied for a Security Officer
position at Provena.’ (Def.’s LR56.1(a)(3) St. 42, Pl.’s LR56.1(b)(3)(B) St. 42.) In his employment
application, Lochard indicated that he was interested in a part-time Security Officer position and was
only available for the night shift. (/d. ] 5.) At the time, Lochard submitted his employment

application on September 9, 2002, there were no Security Officer positions available at Provena.

‘Lochard’s ethnic background is Haitian. (P1.’s LR56.1(b)(3)(B) St. J 2.)

?Provena is an acute-care hospital which provides inpatient, outpatient and urgent care
services for Joliet, Illinois and the surrounding areas. (Def.’s LR56.1(a)(3) St. J 1.)


nondiscriminatory reason for its employment decision. See Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp., 411
U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668. Once the defendant provides a legitimate reason for
its employment decision, the burden shifts back to the plaintiff to establish that the defendant’s
proffered reason is pretextual. Burdine, 450 U.S. at 253, 101 S.Ct. 1089, 67 L.Ed.2d 207; Vakharia
v, Swedish Covenant Hosp., 190 F.3d 799, 806-07 (7" Cir. 1999). The burden of persuasion remains
at all times with the plaintiff. Burdine, 450 U.S. at 253, 101 S.Ct. 1089, 67 L.Ed.2d 207.

Lochard avers that he has sufficient evidence to establish a prima facie case of race
discrimination. (P1.’s Resp. at 7-12.) In addition, Lochard contends that Provena’s proffered sole
reason for not hiring him due to his demeanor and standoffishness during the interview process was
merely a pretext for discriminating against him in the hiring process. (/d. at 12-13.)

Provena, however, asserts that Lochard has failed to satisfy the elements of a prima facie case
of race discrimination because he cannot show he was qualified for the Security Officer position and
Provena hired an African-American applicant to fill one of the Security Officer positions. (Def.’s
Reply at 1.) Provena contends that it weighed the qualifications of its applicants, including their
customer service skills and ability to work more than one shift and determined that Lochard’s
qualifications in these areas were deficient when compared to those of the other applicants. (/d. at
2.) Provena further avers that even assuming arguendo that Lochard can establish a prima facie case,
ithad legitimate business reasons for not hiring him which were not a pretext for race discrimination.
(Id. at 2.)

The Court initially notes that in order to establish a prima facie case of discrimination on the

basis of a failure to hire claim, Lochard must show that (1) he is a member of a protected class; (2)

12


would demonstrate discriminatory intent or animus on the part of Lochard."'
IL. INDIRECT METHOD OF PROOF

In the absence of direct or circumstantial evidence of discriminatory intent, a plaintiff may
show discriminatory intent indirectly under the framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The
McDonnell Douglas indirect method of proof requires that the plaintiff first establish a prima facie
case of discrimination. McDonnell Douglas Corp., 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d
668. To establish a prima facie case of discrimination on the basis of a failure to hire claim, a
plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for an open
position for which he applied; (3) he was rejected; and (4) the employer filled the position with
someone not in the plaintiff’s protected class, or the position remained open.’? See Mills v. Health
Care Serv. Corp., 171 F.3d 450, 454 (7" Cir. 1999).

If the plaintiff establishes a prima facie case, the defendant must then articulate a legitimate,

"The March 4, 2003 denial of employment letter likewise does not constitute direct
evidence of discriminatory intent or animus based on Lochard’s race and does not contradict
Klima’s declaration statement indicating he did not select Lochard for a Security Guard position
because of his demeanor and standoffishness during the interview process.

"Following the Supreme Court’s decision in O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 311-12, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), the Seventh Circuit has
“disavowed prior cases from this circuit suggesting that a Title VII plaintiff must show that [Jhe
was replaced by someone of a different race, sex, and so on.” Leffel v. Valley Fin. Servs., 113
F.3d 787, 793 (7" Cir. 1997)(citing Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7" Cir.
1996)(per curiam)). The Seventh Circuit has “emphasized that although that kind of proof ‘may
help to raise an inference of discrimination,’ it is not required to make out a prima facie case, so
long as there is some evidence from which one can infer that the employer took adverse action
against the plaintiff on the basis of a statutorily proscribed criterion.” Jd. Accordingly, the
Supreme Court’s opinion in O’Connor makes clear “that such proof is not inevitably necessary.”
Leffel, 113 F.3d at 793.

11


understand 4 Question had to have him repeat answer.”* (PI.’s Resp. at 4, Pl.’s Ex. | at 000010.)
Lochard thus asserts that the Applicant Interview Guide contains direct evidence of Klima’s focus
ona characteristic of Lochard’s race and national origin; namely, his accent.” (PI.’s Resp. at 4.)

Lochard next contends that the Applicant Interview Guide and March 4, 2003 denial letter
impeach the credibility of Klima’s declaration testimony. (P].’s Resp. at 4.) Lochard thus avers that
Klima’s testimony is not credible because while Klima offers a declaration to this Court of his
purported state of mind for not hiring him, Klima failed to attach the Applicant Interview Guide to
his declaration. (/d.) Moreover, Lochard asserts that Klima never mentions the Applicant Interview
Guide and his comments referring to Lochard’s heavy accent in his declaration which further
undermines his credibility. (Jd. at 5.)

Provena, on the other hand, contends that Lochard has failed to proffer any direct evidence
ofrace discrimination. (Def.’s Reply at 9.) Accordingly, Provena avers that Lochard is subject to the
indirect burden-shifting analysis. (/d.)

The Court finds Lochard’s assertions unavailing. First, the Court notes that Seventh Circuit
case law states in regard to an individual’s accent that “accent is generally recognized as a

manifestation of national origin.” Hasham v. California State Board of Equalization, 200 F.3d 1035,

‘In reference to Lochard’s answer to the following question on the Applicant Interview
Guide: “Outside of Security issues what is the most important factor you can think of relating to
the previous question?,” Klima noted “Hard to understand answer - asked to repeat could not
understand still.” (P1.’s Ex. 1 at 000009). Klima further noted, in the section on communication,
that Lochard was “hard very hard to understand.” (/d. at 000010.)

*Lochard also avers that the Applicant Interview Guide and March 4, 2003 denial letter do
not indicate that the sole reason Lochard was not selected to fill one of the Security Officer
positions was because of his demeanor and standoffishness during his interview. (P1.’s Resp. at
5.)


Inc., 770 F.2d 93, 97 (7" Cir. 1985)(citing Kephart v. Inst. of Gas Tech., 630 F.2d 1217, 1218 (7"
Cir. 1980)). Finally, “[c]redibility determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling
ona motion for summary judgment or fora directed verdict.” Freeman v. Madison Metro. Sch. Dist.,
2000 WL 1640952, *3 (7"" Cir. Nov. 2, 2000)(quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505).
ANALYSIS

Under Title VII, it shall be unlawful for an employer “to fail or refuse to hire. . . any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race...” 42 U.S.C.
§ 2000e-2(a)(1). In order to prevail on an employment discrimination claim under Title VII, a
plaintiff must show that the employer had an intent to discriminate; such a showing may be made
directly, or indirectly, through the use of an inferential burden-shifting method. Rhodes v. Illinois
Dep't of Transportation, 359 F.3d 498, 504 (7" Cir. 2004).
L DIRECT METHOD OF PROOF UNDER TITLE VII

The direct method of proof requires that a plaintiff present either direct or circumstantial
evidence that the employer’s decision not to hire him was motivated by an impermissible purpose,
such as his race. Wallace v. SMC Pneumatics, 103 F.3d 1394, 1397 (7" Cir. 1997); Rhodes, 359
F.3d at 504. Direct evidence of discrimination “is evidence that, if believed by the trier of fact, would
prove discriminatory conduct on the part of the employer without reliance on inference or
presumption.” Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7" Cir. 2003)(citing Rogers v. City of
Chicago, 320 F.3d 748, 753 (7 Cir. 2003)); see also Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343,

347 (7" Cir. 1997). In short, “[d]irect evidence essentially requires an admission by the decision-


insufficient to motivate the [adverse action].” Wolf v. Buss, Inc., 77 F.3d 914, 919 (7" Cir. 1996).

The Court finds that Lochard has failed to demonstrate Provena’s proffered reason for not
hiring him to fill a Security Officer position is a pretext for discriminating against him on the basis
of his race. Initially, the Court notes that Klima’s written statement on the Applicant Interview
Guide referencing Lochard’s heavy accent does not, as a matter of law, establish pretext on the part
of Provena. See e.g. Hong v. Children’s Mem'l Hosp., 993 F.2d 1257, 1266 (7" Cir.
1993)(‘“Evidence of a supervisor’s occasional or sporadic use of a slur directed at an employee’s
race, ethnicity, or national origin is generally not enough to support a claim under Title VII.”);
O'Connor v. Viacom, Inc., No. 93 CIV. 2399, 1996 WL 194299, at *5 (S.D.N.Y. Apr. 23,
1996)(three isolated remarks made by a supervisor were insufficient to establish national origin
discrimination); Sergilus v. Covenant House Under 21, No. 96 CIV. 6210, 1999 WL 717274, at *2
(S.D.N.Y. Sept. 15, 1999)(one isolated racial epithet made by a supervisor who aided in the
plaintiffs termination was not actionable). In opposing Provena’s motion for summary judgment,
Lochard has failed to provide the requisite nexus between Klima’s written statement noting
Lochard’s heavy accent and Provena’s decision not to hire him. Thus, Klima’s remarks, without
more, do not give rise to an inference of race discrimination or establish pretext herein.

For the reasons discussed supra, Lochard has failed to establish race discrimination under
Title VII through either direct evidence or by the use of the indirect burden-shifting method.
Moreover, Lochard has not produced any evidence that Provena’s decision for not hiring him was
a pretext for discrimination. Lochard’s race discrimination claim is therefore unavailing.
Accordingly, when viewing the evidence in the light most favorable to Lochard, there are no genuine

issues of material fact and a fair-minded jury could not return a verdict for him on the evidence

15


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). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). Once the moving party had produced evidence to show that it is entitled to summary
judgment, the party seeking to avoid such judgment must affirmatively demonstrate that a genuine
issue of material fact remains for trial. LINC v. Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7" Cir.
1997).

In deciding a motion for summary judgment, a court must “review the record in the light most
favorable to the nonmoving party and to draw all reasonable inferences in that party’s favor.”
Vanasco v. National-Louis Univ., 137 F.3d 962, 964 (7" Cir. 1998). See also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nevertheless, the
nonmovant may not rest upon mere allegations, but “must set forth specific facts showing that there
is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See also Linc, 129 F.3d at 920. A genuine issue
of material fact is not shown by the mere existence of “some alleged factual dispute between the
parties,” Anderson, 477 U.S. at 247, 106 S.Ct. 2505 or by “some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists only if “‘a fair-minded
jury could return a verdict for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S.
at 252, 106 S.Ct. 2505.

This standard is applied with added rigor in employment discrimination cases, where issues
of intent and credibility often dominate. See Sarsha v. Sears, Roebuck & Co.,3 F.3d 1035, 1038 (Cha
Cir. 1993). “[S]ummary judgment is improper in a discrimination case where a material issue

involves any weighing of conflicting indications of motive and intent.” Stumph v. Thomas & Skinner,


dd. 9.)

In January of 2003, however, Security Officer positions became available at Provena and
Lochard was contacted for an interview by Joshua Klima (hereinafter “Klima”), Provena’s Security
Department Supervisor. (Def.’s LR56.1(a)(3) St. ff 10, 15.) Lochard was interviewed by Klima on
January 29, 2003. (/d. J 19.)

Klima subsequently interviewed five other candidates for the Security Officer positions at
the end of January of 2003 and in early February of 2003.> (Def.’s LRS6.1(a)(3) St. § 16.) Three
individuals were ultimately hired to fill these positions; however, Lochard was not one of those
selected to fill a Security Officer position. (Jd. J 17, 29.) The three individuals hired by Provena
included an African-American male, a Caucasian male and a Caucasian female. (/d. (25, 26, 27.)

Lochard was notified by letter dated March 4, 2003 that he had not been chosen to fill the
Security Officer position at Provena. (Def.’s LR56.1(a)(3) St. § 29.)

On April 23, 2003, after being denied employment by Provena, Lochard filed a Charge of
Discrimination with the U.S. Equal Employment Opportunity Commission (hereinafter “EEOC”)
alleging that he had been discriminated against on the basis of his race. (Def.’s LR56.1(a)(3) St. J
44, Dkt. No. 1.) Lochard received a notice of his right to sue in federal court dated May 8, 2003 and
subsequently instituted the subject lawsuit. (Dkt. No. 1.)

LEGAL STANDARD
Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine

>Provena received about six employment applications for Security Officer positions from
September of 2002 through January of 2003. (Def.’s LR56.1(a)(3) St. J 8.)

2


he was qualified for an open position for which he applied; (3) he was rejected; and (4) the employer
filled the position with someone not in the plaintiff's protected class, or the position remained open.
See Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7" Cir. 1999). Herein, Lochard is unable
to establish a prima facie case of race discrimination because he cannot satisfy the fourth element
since Provena hired an African-American applicant to fill one of the three Security Officer
positions.'* (Klima Dec. { 19-20.)

Even assuming arguendo that Lochard can establish a prima facie case of discrimination,
Provena has met its burden of articulating legitimate non-discriminatory reasons for not hiring him.
Klima’s decision not to hire Lochard to fill one of the Security Officer positions was solely based
on Lochard’s “demeanor and ‘standoffishness”” during the interview process.'* (Klima Decl. J 16.)
For example, in his declaration, Klima stated that during the interview, Lochard answered “none”
defiantly to questions regarding weak points and areas for improvement. (/d. 17.) Klima also stated
that Lochard provided one-word responses to open-ended interview questions regarding his customer
service skills and plans for future education. (/d. J 18.) When asked about his plans for further

education, Lochard responded “none.” (/d.) In addition, the Court notes that Lochard appears to have

responded to many of the interview questions with only several word responses.

©The Court finds that Lochard was qualified for the Security Officer position. The Court
basis this finding on the fact that Provena’s Policy Manual states under the heading of
Selection/Hiring Procedures that: “[q]Jualified candidates will be scheduled with the hiring
manager for interviews.” (Pl.’s Ex. 4 at 000013.) Therefore, Provena implicitly would not have
scheduled an interview with Lochard for the Security Officer position unless he was qualified.

‘In comparison to the candidates hired by Klima, Lochard was interested in a part-time
Security Officer position and was only available for the night shift. (Klima Decl. J 15.) At the
time of the interview, Lochard had a private detective certificate, approximately twelve years of
security experience and had no plans to continue his education. (Pl.’s Ex. 1 at 000009, Pl.’s Ex.
2 at 000006-7, Lochard Decl. | 5.)

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presented as it relates to his race discrimination claim.

CONCLUSION”

Based on the foregoing, Provena’s motion for summary judgment is granted and the cause

is dismissed with prejudice.

ENTER:
chan Me Re
IAN H. LEVIN

United States Magistrate Judge

Dated: April 22, 2005

'SLochard has withdrawn his 1999 and 2000 failure to hire claims. (Pl.’s Resp. at 1.)

In view of the Court’s ruling herein, it is deemed unnecessary to consider Lochard’s and
Provena’s other arguments raised herein.

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