plaintiff alleging a discrete discriminatory act will be time-barred if he files his charge more
than 300 days after the objectionable act occurred, but a plaintiff alleging a hostile work
environment will not be time-barred “so long as all acts which constitute the claim are part of
the same unlawful employment practice and at least one act falls within the time period.”
Morgan, 536 U.S. at 122.

Since Taylor does not plead his claims of discrimination in separate counts and does
not distinguish between discrete acts and those contributing to a hostile work environment,
the court must do it for him. First, in one of Taylor's allegations he states that he was not
initially hired as a litigation paralegal, a P9 position that paid higher than his P8 paralegal
position, because of his race. A failure to hire is a discrete act of discrimination that is subject
to the 300-day statute of limitations. Delaware State College v. Ricks, 449 U.S. 250, 257-58
(1980) (holding that decision to deny tenure is discrete act and claim accrues at denial of
tenure), Here, Taylor applied for and was denied the P9 paralegal position in June or July of
1998, but he did not file his charge with the EEOC until March 29, 2001. Since his EEOC
charge was brought well outside the 300-day limitations period (which would have expired in
April or May of 2000), Taylor’s claim for discrimination based on Metra’s failure to hire him
for the P9 litigation paralegal position is time-barred.

Next, another of Taylor’s allegations charges Metra with paying him less than non-
black P8 level paralegals by not giving him a higher starting salary and by giving him lower
annual salary increases. The Seventh Circuit has explained that for claims of discrimination
based solely on disparate pay, each new paycheck received is “a fresh act of discrimination”

and is not untimely simply because the initial act of discrimination occurred outside the

-4.



plaintiff's conditions of employment or work performance. Hildebrandt, 347 F.3d at 1033-34.
If the conduct is not so severely disruptive or hostile and is not aimed solely at a particular
member of or an entire protected class, it is not an adverse action and will not support a

Title VII claim,

It is questionable whether the conduct complained of by Taylor in this case, if proven,
would rise to the level of hostility necessary to recover under Title VII. According to Taylor,
his work environment was hostile because he was told at the time he was hired that he would
be held to a higher standard because he was black and because he was the only Metra legal
department employee: (1) required to obtain prior approval for unpaid leave; (2) required to
sign in and out on a daily log sheet each time he left the office; (3) assigned to do more work
than other paralegals; and (4) not given a higher annual salary increase in 2001. Standing
alone, Taylor’s allegations, which are assumed to be true, do not rise to the level of an adverse
employment action based on a hostile work environment. Rhodes, 2004 U.S. App. LEXIS
3668, at *11, These several occurrences did not materially alter the conditions of Taylor’s
employment and are not subjectively or objectively hostile. Johnson v. Cambridge Indus, Inc.,
325 F.3d 892, 901 (7th Cir. 2003). As the Seventh Circuit said in Rhodes, “Not everything that
makes an employee unhappy qualifies as an adverse action for Title VII, and this is
particularly true [when the plaintiff] complains of assignments or tasks consistent with the job
duties” required by plaintiff's position, 2004 LEXIS 3668, at *12 (internal citations omitted).

When viewed in light of Noland’s statement that Taylor would be held to a higher
standard because of his race, however, Taylor’s allegations begin to look more like a an
actionable hostile work environment claim, Proceeding under this view, which is favorable to

9.



allegations occurred after June 2, 2000, and the court considers each allegation part of one
unlawful employment practice, all of his hostile work environment allegations may be
considered in determining Metra’s liability under Title VII. Morgan, 536 U.S. at 122,
Assuming for the moment that Taylor’s allegations are part of the same discriminatory
employment practice and are severe enough to constitute an adverse action (more on this
later), at least one of them occurred within the limitations period: Metra informed Taylor in
writing in February of 2001 that he needed to complete his daily time sheets. Consequently,
Taylor’s hostile work environment claim is not time-barred.

Merits

The court next turns to the merits of Taylor’s claims, Under Title VII discrimination
can be proved by direct or indirect evidence. A plaintiff using the direct method may present
either direct or circumstantial evidence that establishes outright a discriminatory reason for
his employer’s animus. Venturelli vu. ARC Community Servs., Inc., 350 F.3d 592, 599 (7th Cir,
2003), Direct evidence “essentially requires an admission by the decision-maker that his
actions were based on the prohibited animus.” Radue v, Kimberly-Clark Corp., 219 F.3d 612,
616 (7th Cir. 2000) (describing direct evidence as “eyewitness testimony as to the employer’s
mental processes”). Admissions of discrimination by employers are rarely found due to the
fact that “most employers are careful not to openly discriminate and certainly not to publicly
admit it.” Jd,

If the plaintiff lacks such direct evidence he may make his case based on indirect
evidence, applying the burden-shifting method of proof established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas framework requires the plaintiff

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300-day limitations period. Reese v. Ice Cream Specialties, Inc, 347 F.3d 1007, 1014 (7th Cir.
2003). To the extent that Taylor’s charge of discrimination is based on his being hired as a P8
paralegal at a lower starting salary than non-black P8 paralegals, he states a strict paycheck
claim. This means that checks received by Taylor within the 300-day limitations period
which reflect Metra’s initial decision to pay him less than non-black P8 paralegals will nou be
time-barred. Reese, 347 F.3d at 1013. But, to the extent that Taylor’s charge of discrimination
is based on his being given a lower annual salary increase than non-black P8 paralegals, he
complains of discrete acts of discrimination that are subject to the 300-day limitations period.
Reese, 347 F.3d at 1013 (explaining difference between simple pay allegation and one involving
act of discrete discrimination, like refusal to promote or to give a raise), This means that
Taylor potentially can recover only for discriminatory pay received after June 2, 2000 (the
date 300 days prior to the filing of his EEOC charge), which in turn means only for his 2001
salary increase. Hildebrandt v. Ill. Dept. of Natural Res., 347 F.3d 1014, 1028 (7th Cir. 2003).

Finally, as best as the court can tell, Taylor’s remaining allegations of being assigned
more work, having to sign in and out, fill out daily time sheets, and request prior approval for
unpaid leave can be construed only as a claim for hostile work environment.’ Morgan, 536
USS, at 117 defining hostile work environment claim as “a series of separate acts that

collectively constitute one unlawful employment practice”). Thus, provided one of Taylor’s

' Taylor never expressly pleaded a claim for hostile work environment. However,
since he seemed to indicate in his response to Metra’s motion to dismiss that he meant to plead
hostile work environment, and since he does not introduce any new allegations to support his
claim, the court will construe the assortment of complaints set out by Taylor, none of which
on its own amounted to an adverse employment action, as pleading a hostile work
environment claim.

“5


the statement is direct evidence that Metra intended to treat Taylor differently because of his
race, the statement itself is not actionable under Title VII. To prevail on a Title VII claim, it is
not enough to show that one’s employer harbored racial animus; a plaintiff also must prove
that his employer’s animus had a material negative effect on the plaintiff’s employment. This
Taylor fails to do.

For Title VI purposes, an adverse employment action is a significant change in the
plaintiff's employment status, such as a failure to hire, a retaliatory termination, a denial of a
promotion, or a transfer to a lesser position. Rhodes, 2004 LEXIS 3668, at *11. In other
words, it is workplace conduct that is “more disruptive than a mere inconvenience or an
alteration of job responsibilities.” Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993
F.2d 132, 136 (7th Cir. 1993). Here, Taylor cannot complain of termination since he resigned
from Metra, and of his remaining timely allegations, none complain of retaliation, demotion,
or any other discrete adverse employment action.” Instead, he cobbles together numerous
contentious workplace incidents that he believes were manifestly unfair and submits them as
evidence of racial discrimination. Though he does not use the phrase, the court interprets
these allegations in Taylor’s complaint as forming a claim for a hostile work environment. In
the context of a hostile work environment claim, the complained-of conduct must be so

subjectively and objectively hostile as to materially interfere with or substantially alter the

> Taylor included discrete failure to hire and disparate pay claims in his complaint, but
for the reasons stated earlier in this opinion, all but one of those claims are time-barred. The
remaining pay claim arises from Taylor’s assertion that he was given a lower annual salary
increase than non-black paralegals. Though this is a discrete act, it does not on its own
constitute an adverse action. The court will therefore consider it in conjunction with Taylor’s
hostile work environment claim. See infra pp.9.

8.



Harm (D607)

United States District Court, Northern District of Minois

Niune of Assigned Judge
or Magistrate Judge

Joan B, Gottschall

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 01 C6319 DATE 3/29/2004
CASE Taylor vs. Metra
TITLE
[In the Following bux (a) indicate the purty filing the motion. ¢.., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion hying preseated.]

DOCKET ENTRY:

a
(2)
(3)
(4)
6)
(6)
(7)

ql)

oO Filed motion of [ use listing in “Motion” box above.}

(] Bricf in support of motion due _

a Answer brief to motion due__.. __. Reply to answer brief due,

o Ruling/Hearing on. ___ set tor __. a

im] Status hearing[held/continued tol [set for/re-set Jor] on ___ set or at

oO Pretrial conference[held/continued to] (set for/re-set for] on set for at
o ‘Trialfset for/re-set lor] on __.

Oo [Bench/Jury trial] [Hearing] held/continued to at

o This case is dismissed [with/without] prejudice and without costs| by/agreement/pursuant to

V] BRCP4(m)

a JOther docket entry]

1 Local Rule 41-1

OPRCP4 tial). O FRCPAI(ay(2).

Enter Memorandum Opinion and Order. For the reasons given in the attached

memorandum opinion and order, the court grants defendant Metra’s motion for summary judgment [42-1] on all claims.

Case Terminated.

| (For further detail see order attached to the original minute order.]

><}

No notices requinad, advised in open court,
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Dacketing to mail nytices:

Mail AQ 450 form, on

Copy to judge/nmagistrate judge:

eourtroum
dleputy’s
iniuals

RIKI

o) Botument!
Nomber

nyrnber of nos E :

Date/time received in

MAR 3 0 2004

state duet

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race as he was the only employee in the Metra Law Department to have to sign in and out
every time that he left the office.” Pl’s L.R. 56.1 Statement of Facts 435. In support of this
allegation, Taylor points to his own deposition testimony where he explained that he had to
sign in and out because he had missed a filing one day and no one knew where he was, so
“From now on, I have to sign in and out any time I leave the office.” Def. Ex. F at 124.
Similarly, Taylor says that he was discriminated against because of his race “when he was
assigned far more work than other paralegals,” Pl’s L.R. 56.1 Statement of Facts { 25, but the
deposition testimony Taylor offers to support this allegation discusses Taylor’s filing of
charges with the Illinois Department of Human Rights and makes no mention at all of work
assignments. Def. Ex. F at 113, lines 16-19.

Nowhere in this summary judgment record is there admissible evidence that Metra
actually held Taylor to a higher standard than non-black paralegals. Conclusory allegations
like the ones offered by Taylor in his Rule 56.1 Statement of Facts tell the court nothing about
the nature of Taylor’s working conditions compared to others outside his protected class and
are therefore insufficient to prove that any of Metra’s employment actions toward Taylor
amounted to discrimination. See Hildebrandt, 347 F.3d at 1036 (“bare allegations not

supported by specific facts are insufficient in opposing a motion for summary judgment”).

-l-



Taylor as the nonmovant, the court still needs from Taylor admissible evidence that Metra in
fact gave him extra work, paid him a lower annual bonus, required him to sign in and out, and
made him get prior approval for unpaid leave, and that Metra did not act this way toward its
non-black paralegals, in order to find in Taylor's favor on a motion for summary judgment.
Summary judgment “is the ‘put up or shut up’ moment in a lawsuit, when a party must show
what evidence it has that would convince a trier of fact to accept its version of events.”
Schacht v. Wisconsin Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999). Here, Taylor offers no
admissible evidence from which it may be inferred that any of the restrictions or limitations
placed on him by Metra were imposed because of his race.

Taylor's evidentiary submissions in this case consist only of his Rule 56.1 Statement of
Facts and his 2000 Annual Performance Appraisal. With respect to his allegations of a hostile
work environment, Taylor offers as evidence only his own opinion, derived from statements
allegedly made by co-workers, that other paralegals (he does not identify their race) were not
subject to the same workplace conditions that he was; he cites no affidavits or deposition
testimony of the co-workers on whose statements he wishes to rely. Out of court statements
like these which are offered for their truth are hearsay and generally inadmissible, FED. R.
EvIb. 802; Galdikas v. Fagan, 342 F.3d 684, 695 (7th Cir, 2003), and Taylor does not offer an
exception to this rule for the statements he relies on here, Neither does he offer any
admissible evidence of how and under what circumstances he was treated differently than
Metra’s non-black paralegals. Instead, his Rule 56.1 Statement of Facts is riddled with
conclusory statements which do not provide a sufficient factual basis for his legal claims. For
example, Taylor states that he “was discriminated against by Metra on the basis of color and

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first to establish a prima facie case of discrimination by demonstrating that he: (1) belongs to a
protected class, (2) performed his job to his employer’s legitimate expectations, (3) suffered an
adverse employment action despite performing satisfactorily, and (4) received less favorable
treatment than similarly situated employees outside the protected class. Hildebrandt v. Ill.
Dep’t of Natural Res., 347 F.3d 1014, 1030 (7th Cir, 2003). If the plaintiff succeeds, the burden
shifts to the defendant to provide legitimate, non-discriminatory reasons for its conduct; and if
the defendant succeeds, the burden shifts back to the plaintiff to show that the defendant’s
reasons were pretextual. Rhodes v. Illinois Dep’t of Transp., No. 03-1651, 2004 U.S. App.
LEXIS 3668, at *10 (7th Cir. Feb. 26, 2004), Whether a plaintiff proceeds by either the direct
or indirect method of proof, to recover under Title VII he must ultimately prove both that his
employer's actions were unequivocally discriminatory and that he suffered a materially
adverse employment action. See id, at *11.

Unlike most Title VII claimants, Taylor offers direct evidence of racial animus in
support of his discrimination claim. Taylor maintains that Michael Noland, Metra’s General
Counsel and Taylor's hiring supervisor, told him “that he was the first African American
male that was ever hired in the Legal department and that he would be held to a higher
standard.” Pls L.R. 56.1 Statement of Facts 17. Metra denies that Noland made this
statement and insists that Taylor is “misrepresenting a conversation regarding the use of sick
time.” Def,’s Resp. To Pl.’s LR. 56.1 Statement of Facts { 17. Though a dispute of material
fact will preclude summary judgment, here the disputed fact is not material because its truth
does not determine whether plaintiff or defendant is entitled to prevail as a matter of law,
Even if the court accepts that Noland made the statement, and even if the court believes that

-7-


salary increases than non-black paralegals, (3) gave him more work than non-black paralegals,
and (4) made him account for his work and vacation time more strictly than non-black
paralegals. Metra moved for summary judgment, arguing that Taylor’s claims are time-barred
and that even if they weren’t, its employment actions with respect to Taylor did not
constitute racial discrimination.
DISCUSSION

Summary judgment is appropriate if “the pleadings, depositions, answers to
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. ClV.P. 56(c). 'To withstand summary judgment on a Title VII
claim, the plaintiff must “present sufficient evidence from which a jury could find that his
employer acted with a discriminatory intent” in making employment decisions about the
plaintiff. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). Before discussing
the merits of Taylor’s discrimination claims, the court turns to Metra’s assertion that Taylor’s
claims are untimely.

Timeliness

Title VII requires plaintiffs to file a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) within 300 days after the conduct giving
rise to the charge occurs. 42 U.S.C. § 2000e-5(e)(1); Nat'l Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 110 (2002). However, the limitations period is calculated differently for claims
based on discreet acts of discrimination or retaliation (such as termination, failure to promote,
or refusal to hire) than for claims based on a hostile work environment. Specifically, a

3.



courts, responding to certain discovery requests, drafting memoranda and form pleadings, and
performing basic law research like cite-checking. The posting also advertised the paralegal job
as level P8 with an expected salary in the “high twenties.” Taylor applied for the position, and
Metra awarded him the job. Taylor received a starting salary of $29,572 and began working as
a paralegal in January of 1999.

Over time, Taylor and Metra became mutually dissatisfied with Taylor's work
performance and conditions of employment. Disputes between Taylor and his supervisors in
Metra’s General Counsel’s office grew out of Taylor’s use of sick time and unpaid leave, his
failure to account accurately for his time on daily time sheets, his time-consuming
performance of court filings and other projects, and his lack of productivity due to excessive
time away from the office and on the phone. Taylor offers an excuse for each incident of
alleged under-performance but he does not dispute the underlying facts. Instead, he maintains
that each time he and Metra faced a conflict about his work and Metra placed certain
restrictions on Taylor, it was due to Metra’s race discrimination and not his work
performance. In particular, he points to the fact that he was required to fill out daily time
sheets, get prior approval for unpaid leave, and sign in and out when he left the office during
the work day as evidence of race discrimination. Further, Taylor alleges that he was given
more work and was paid less than non-black paralegals.

Taylor filed a charge of discrimination with the EEOC on March 29, 2001, and this
lawsuit on August 15, 2001. Taylor complains that Metra discriminated against him because
of his race when it: (1) failed to hire him for a higher-paying paralegal position for which he

was qualified and instead hired a white man, (2) paid him less and gave him lower annual

-2-



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

EASTERN DIVISION
MICHAEL A. TAYLOR, )
)
Plaintiff, )
)
v. ) Case No. 01 C 6319

)

NORTHEAST ILLINOIS REGIONAL ) Honorable Joan B. Gortschall
RAILROAD CORP., d/b/a METRA/ _)
METROPOLITAN RAIL, ET AL., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Michael Taylor sued his former employer, defendant Northeast Illinois
Regional Commuter Railroad Corp. (“Metra”), for discriminating against him because of his
race in violation of Title VII, 42 U.S.C. § 2000e, et seq. Before the court is Metra’s motion for
summary judgment which, for the reasons that follow, is granted.

BACKGROUND

Taylor resigned from Metra on April 9, 2001, after working for the commuter rail
service company for a little over three years. In November of 1997 Taylor applied for but was
denied a paralegal job in Metra’s legal department. In February of 1998 Metra hired ‘Taylor as
a cleaner of passenger rail coaches. In June of 1998 Taylor applied for and was denied a higher-
paying litigation paralegal job in Metra’s legal department. In November of 1998 Metra again

posted a job opening for a paralegal. The posting described the minimum qualifications for

the position and listed its duties, such as maintaining case files, filing papers in federal and state

sf

“le



CONCLUSION
Because Michael Taylor has failed to timely file certain of his claims and has failed to
present sufficient evidence in support of his remaining claims, he is not entitled to relief under

Title VII, The court therefore grants summary judgment in favor of defendant Metra.

ENTERED:

(lle —

J \K B, GOTTSCHALL
/ AInited States District Judge

DATED): March 29, 2004

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