so, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason
for the challenged employment decision. Id, If defendant carries its burden, plaintiff must show that
the proffered reason for the employment decision is merely a pretext. Id.

To establish a prima facie case on his discrimination claims, plaintiff must show that: (1)
he is a member of a protected class; (2) he was meeting defendant’s legitimate expectations; (3) he
suffered an adverse employment action; and (4) defendant sought a replacement for him. Id, at 983
(discussing prima facie case elements in the context of a reduction in force). Plaintiff is African
American, was terminated and was replaced by a white manager. (See P1.’s LR 56.1(b)(3)(B) Stmt.
49 1, 3,5.) Thus, the first, third and fourth elements are met. Moreover, though defendant contends
there were problems with plaintiff's performance, itis undisputed that those problems played no role
in the decision to terminate him. (See Def.’s LR 56.1(a) Stmt. {9 5, 8, 12; Pl.’s LR 56.1(b)(3)(A)
Stmt. ff 5, 8, 12.°) The second element, therefore, is also met.

Having established a prima facie case, the burden shifts to defendant to articulate a legitimate
nondiscriminatory reason for its decision. The reason, defendant says, was plaintiff's lack of
seniority. Plaintiff contends that reason is pretextual because: (1) Wael El Kahaly, another
employee of defendant, told plaintiff that defendant hired three white managers around the time of
plaintiff's termination (Pl.’s LR 56.1(b)(3)(B) Stmt., Ex. A, Mwachande Dep. at 52-54); and (2)
plaintiff noticed a pattern of discrimination against African-American managers during his tenure
with defendant (id, 9). 7
El Kahaly’s statement, coming as it does through plaintiff, is only admissible if it constitutes

an admission of defendant. FED. R. EVID. 801(c), (d)(2)(D). The statement is an admission only if

See nn.2 & 4.



The al Standard
To prevail on a summary judgment motion, “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, [must] 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). At this stage, we do not weigh evidence or determine the truth
of the matters asserted. Anderson v, Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all
evidence and draw all inferences in favor of the non-moving party. Michas v, Health Cost Controls

of Ill., Inc,, 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the

record as a whole establishes that no reasonable jury could find for the non-moving party. Id.

jiscussion

Title VII prohibits employment discrimination on the basis of race, color, religion, sex or
national origin. 42 U.S.C. § 2000e-2. Section 1981 prohibits racial discrimination in the “making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981 (a)-(b). “While
section 1981 and Title VII differ in the types of discrimination they proscribe, the methods of proof
and elements of the case are essentially identical.” Von Zuckerstein v. Argonne Nat’] Lab., 984 F.2d
1467, 1472 (7* Cir, 1993).

Having no direct evidence of discrimination, plaintiff must comply with the indirect,
burden-shifting method of proof articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), ifhe is to defeat this motion. Jackson v. E.J. Brach Corp., 176 F.3d 971, 982 (7* Cir. 1999).

Under that method, plaintiff must first establish a prima facie case of discrimination. Id. Ifhe does

3.



a

El Kahaly was defendant’s agent or servant when he made it and the statement concerns a “matter
within the scope of [his] agency or employment.” Fep. R. Evid. 801(d)(2)(D). El Kahaly’s
statement does not satisfy either requirement. ,

First, it is undisputed that El Kahaly was no longer an employee of defendant when he made
the statement. (See PI.’s LR 56.1(b)(3)(B) Stmt., Ex. A, Mwachande Dep. at 53 (stating that El
Kahaly made the statement in April 2001); Dardovski Supp. Aff. { 2 (stating that El Kahaly left
defendant’s employ in March 2001).) Moreover, even if he had been, his statement would still not
be an admission because there is no evidence that it concerned a matter within the scope of his
employment. Plaintiff says that El Kahaly was defendant’s Director of Operations for Hotels, (Pl.’s
LR 56.1(b)(3)(B) Stmt., Ex. A, Mwachande Dep. at 54), but he does not explain what that job
entails, There is no evidence, for example, that E] Kahaly made the decision to hire, or was
otherwise involved in the process of hiring, these unidentified garage managers, that these particular
managers were hired to work at hotel garages or that such hiring decisions were generally a part of
El Kahaly’s job duties. On the contrary, plaintiff admits that he has “no knowledge of what [El
Kahaly’s] basis” was for making the statement, (id,), and defendant says that Ei Kahaly “never had
authority to speak on [its] behalf [about] personnel matters.” (Dardovski Supp. Aff. 14.) Absent
some evidence from which we can infer that the statement was made during El Kahaly’s employment
and concerned a matter within its scope, it does not constitute an admission by defendant or
admissible evidence of pretext. See Stagman v. Ryan, 176 F.3d 986, 996 (7* Cir. 1999) (statement
is admissible as an admission under Rule 801(d)(2)(D) only if court “determine[s] [that] the
employee was authorized by his employer regarding the matter about which he allegedly spoke”).

Plaintiff fares no better with the alleged pattern of discrimination. Although he asserts that

5



Minute Order Form
i \y United States District Court, Northern District of Llinois

yf Sittin 0
wr Magistrate Judge Paul E, Plunkett then Asiged Judge

CASE NUMBER 02 C 940 DATE 2/18/2003

CASE Willie Mwachande vs. System Parking, Inc.

TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]
DOCKET ENTRY:

(1) ao Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) 0D Answer brief to motiondue__. Replytoanswerbriefdue_—-

(4) im} Ruling/Hearingon eset for att

(5) Do Status hearing[held/continued to) [set for/re-set for]on__setfor___at.

(6) ia) Pretrial conference[held/continued to] [set for/re-set forlon__—setfor__—— at.
(@) im} Trial[set for/re-set for}on__at

(8) Qo [Bench/Jury trial] [Hearing] held/continued to__at

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

OFRCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) CI FRCP41(a)(2).

summary judgment is, therefore, granted. This is a final and appealable order.

(il) i | [For further detail see order attached to the original minute order.]

do wf [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: there is no genuine
issue of material fact on any of the claims plaintiff asserts against defendant. Defendant’s motion for

No notices required, advised in open court.

No notices required.

number of notices
Notices mailed by judge's staff.
Notified counsel by telephone. FEB 19 2003

Y | Docketing to mail notices.
VY | Mail AO 450 form.
o | Copy to judge/magistrate judge. \.\u~
courtroom .
deputy’ sane
7K inkials OT os ay
Dateltime received in
central Clerk's Office



two African-American managers, Messrs. Doumia and Coulivaly, “were disciplined more severely
and treated more poorly than non-black managers,” (Pl.’s LR 56.1(b)(3)(B) Stmt. ¥ 9), he has no
evidence to support that statement. The record contains no facts at all about Mr. Doumia and though
plaintiff testified that Mr. Coulivaly was demoted unfairly, he also admitted that he had “no firsthand
knowledge of why” the demotion occurred, (Pl.’s LR 56.1 (b)(3)(B) Stmt., Ex. A, Mwachande Dep.
at 35-38.°) In the end, all we are left with is plaintiff's unsubstantiated “belie[f] ... that... the
reason they wanted to get rid of [him]” was because he was black, (id, at 34-35), which is

insufficient to avert summary judgment, no matter how heartfelt.

Conclusion
For the reasons set forth above, there is no genuine issue of material fact on any of the claims
plaintiff asserts against defendant. Defendant’s motion for summary judgmentis, therefore, granted.
This is a final and appealable order.
ENTER:

Cine

UNITED STATES DISTRICT JUDGE

parep: 2 -/8 -o 3

“Plaintiff s deposition testimony refers to amanager named “Al.” Because plaintiff cites this
testimony in support of his assertions about Mr. Coulivaly, we have assumed that Al and Mr.
Coulivaly are the same person.

6.


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

EASTERN DIVISION
WILLIE MWACHANDE, )
)
Plaintiff, )
)
v. ) No. 02 C 940

) Paul E. Plunkett, Senior Judge
SYSTEM PARKING, INC. )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Willie Mwachande has sued System Parking, Inc. for its alleged violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. The case is before the
Court on defendant’s Federal Rule of Civil Procedure 56(c) motion for summary judgment. For the

reasons set forth below, the motion is granted.

Facts!

Defendant is a corporation that manages more than eighty parking garages in the Chicago
area. (Def.’s LR 56.1(a) Stmt. J 1.) From 1984 until 1997, plaintiff, who is African American, was
employed by defendant as a parking attendant. (Id. J 4; Pl.’s LR 56.1(b)(3)(B) Stmt. J 1.) In 1997,

plaintiff voluntarily quit that position. (Def.’s LR 56.1{a) Stmt. 4 4.) On September 27, 2000,

‘Unless otherwise noted, the following facts are undisputed.


plaintiff was rehired by defendant as the manager of a garage at Monroe and Wells in Chicago. (Id.
15")

Plaintiff's employment with defendant was controlled by a collective bargaining agreement
between defendant and Teamsters Local No. 727. (Id. 2.) That agreement requires defendant to
consider seniority company-wide before engaging in layoffs. (Id.) Seniority is defined as “length
of continuous service from an employee’s first day of continuous employment in the industry as a
member of the Union,” and can be broken in a number of ways, including by a voluntary quit.
(Dardovski Aff., Ex. A at 2.)

In February 2001, defendant terminated its management agreement with the owner of a
parking garage at 3600 Lake Shore Drive (“Garage 315”) for economic reasons. (Def.’s LR 56.1(a)
Stmt. 6.) When the agreement ended, Mike Duffy, a white male, was the manager of Garage 315.
(id, § 7; Pl.’s LR 56.1(b)(3)(B) Stmt. | 5.) Duffy had been a garage manager for defendant since
September 1998. (Def.’s LR 56.1(a) Stmt. ¥ 8.) Defendant replaced plaintiff, who had the least
seniority of all of defendant’s garage managers, with Duffy. (Id.) Though defendant says there were
problems with plaintiff's performance, his lack of seniority was the only reason for his discharge.

(id. J 12.‘) Plaintiff contends that he was terminated because of his race.

2Plaintiff did not respond to this fact statement. By operation of Local Rule 56.1, therefore,
he is deemed to have admitted it. See LR 56.1(b).

See n.2.

‘Plaintiff denied the assertion in this fact statement without any citation to the record. By
operation of Local Rule 56.1, therefore, he is deemed to have admitted it. See LR 56.1(b).

-2-