Maarouf, Jamal M. v. Walker Mfg Co ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1196
JAMAL M. MAAROUF,
Plaintiff-Appellant,
v.
WALKER MANUFACTURING COMPANY, a division
of Tenneco Automotive, Incorporated,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 97 C 319--William C. Lee, Chief Judge.
Argued September 10, 1999--Decided April 12, 2000
Before POSNER, Chief Judge, and EASTERBROOK, and
ROVNER, Circuit Judges.
ROVNER, Circuit Judge. This case arrives here
after a grant of summary judgment to defendant
Walker Manufacturing Company ("Walker") in the
district court. Jamal M. Maarouf sued Walker,
alleging that it violated his rights under Title
VII of the Civil Rights Act of 1964, 42 U.S.C.
sec.2000 et seq. in discriminating against him in
training, promotion, and termination based on his
Arabic heritage and Muslim faith, and in
retaliating against him for his complaints of
discrimination.
Walker manufactures components of automobile
exhaust systems in its Ligonier, Indiana plant.
Maarouf was hired to work as a Coordinate
Measuring Machine ("CMM") operator in February
1993, after working there for six months as a
temporary employee. The position of CMM operator
encompassed keeping records, maintaining gauges,
fixing various handtools, and writing programs
for the CMM. Operators worked in three shifts,
the first running from 6 a.m. until 2 p.m.,
followed by the 2-10 p.m. shift and the third
shift from 10 p.m. until 6 a.m. CMM operators are
trained on the job by more experienced operators
and through using the equipment. Experienced
operators were available to help in training on
the entire first shift and for four hours of the
second shift, but no experienced operators were
available to fulfill that role on the third
shift. Maarouf worked on each of the three shifts
at various times, although he estimated that he
spent 90% of his time on the third shift. During
his tenure there, he received training from
Dwight DeWitt, Theresa Allen, and Gary Frey. He
ultimately was terminated for poor work
performance after his supervisors documented
performance problems including lengthy work
breaks, problems completing assignments in a
timely manner, and the inability to acquire
adequate programming skills. Maarouf attributes
his programming deficiencies to the lack of
training opportunities, and asserts that his
termination was based on discriminatory animus
rather than poor work performance.
I.
We turn first to Maarouf’s allegations that
Walker discriminated against him by denying him
adequate training, by failing to promote him, and
by terminating his employment. Maarouf may prove
discrimination under Title VII through direct
evidence, or indirectly through the burden-
shifting mechanism of McDonnell-Douglas.
McDonnell-Douglas Corp. v. Green, 411 U.S. 792(1973); Crim v. Bd. of Educ. of Cairo School
Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998).
In this case, Maarouf has attempted to prove
discrimination indirectly under the McDonnell-
Douglas test, and thus must first establish a
prima facie case of discrimination. 147 F.3d at
540. He may do that by establishing that he is a
member of a protected class, that he suffered an
adverse employment action, that he was meeting
his employer’s legitimate performance
expectations, and that his employer treated
similarly situated employees who were not in the
protected class more favorably. Stalter v. Wal-
Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir.
1999). If that is established, the burden shifts
to Walker to provide a legitimate, non-
discriminatory reason for the action. Id. If
Walker meets that burden, then the burden shifts
back to Maarouf to establish that the reasons
proffered by the defendant were pretextual. Id.Regarding the failure to train claim, the
district court entered summary judgment for
Walker because Maarouf failed to present evidence
that he received less training than other
employees. The type and lengths of training
varied considerably among the employees. Some
employees were trained by being assigned
immediately to the first shift, where they could
receive individual instruction on programming and
other skills from CMM operators working that
shift. Other employees were assigned to the
second shift, in which CMM operators were only
available for four of the eight hours to aid in
their instruction. Maarouf complains that he
received less training than anyone because he was
assigned to the third shift for 90% of his time
with the company, and was the only CMM operator
on that shift. Maarouf, of course, had worked for
Walker as a temporary worker before being hired
on a permanent basis, and thus had some
familiarity with the equipment from the start.
Even if he was hired in the same situation as
other employees, however, his training was
comparable to that of other employees. Maarouf
does not dispute that he was assigned to the
first shift for a total of three months, at which
time other operators were available to aid in his
training. He complains that two of those months
came only at the end of his employment, but that
is irrelevant. After 28 months of obtaining
familiarity with the machines, the two months on
the first shift would presumably be even more
useful. Maarouf does not contend that his
programming skills improved dramatically in the
two months preceding the termination. In addition
to those three months, Maarouf was allowed to
"overlap" from the third to the first shift to
ask questions of the operators on the first
shift. The district court noted that he was
permitted hour to 45 minutes daily after the
third shift, which when added together yielded a
total of 6-9 weeks of further training. Maarouf
does not dispute those numbers, but argues
instead that there was no evidence of how often
he actually used those opportunities. Again, that
misses the point. Maarouf is complaining that he
did not receive the same training opportunities
as other employees. The relevant issue is what
training Walker made available to him, not
whether he availed himself of those
opportunities. Finally, Maarouf was also sent on
a five-day trip to Detroit for a training seminar
on CMM software, conducted by the creators of the
software.
Those training opportunities are equivalent to
that offered other Walker employees. For
instance, Otis Patterson received three months of
training on the first shift when he was hired, at
which time he was moved to the second shift.
Maarouf similarly received a total of three
months on the first shift, and in addition was
provided the 6-9 weeks of "overlap" training
opportunities. Moreover, this training was
provided to him at a time in which he had already
gained substantial familiarity operating the CMM.
Therefore, the undisputed facts demonstrate that
his training was equivalent to that received by
other CMM operators, and thus he has failed to
support his allegation that he was discriminated
against in training.
His arguments regarding the lack of training
opportunities are repeated in both his
termination and his promotion discussions.
Regarding the failure to promote, Maarouf argues
that he was discriminated against in Walker’s
failure to promote him to the position of layout
technician. He acknowledges that the layout
technician position requires superior programming
skills which he did not possess, but he argues
that his failure to obtain those skills stemmed
from the lack of training opportunities. Because
we have rejected his argument that he was denied
equivalent training opportunities, his failure to
promote argument must fail as well. Moreover, as
we held in Pafford v. Herman, 148 F.3d 658, 669
(7th Cir. 1998), a failure to promote claim is
distinct from a failure to train claim. "One of
the prima facie elements of a failure to promote
claim is that the plaintiff demonstrate that she
was qualified for the promotion position. If the
plaintiff was not qualified for any reason, then
she falls short of establishing a prima facie
case and there is no inference of
discrimination." Id. Maarouf cannot succeed on
his failure to promote claim because he concedes
that he lacked the skills to perform the desired
position. Where the failure to acquire the skills
necessary for promotion stemmed from a
discriminatory denial of opportunities, the
employee must bring a discrimination claim
challenging the denial of opportunities rather
than a challenge to the failure to promote.
Maarouf brought that in his failure to train
claim. Because he concedes that he did not
possess the programming skills needed for the
position of layout technician, the failure to
promote claim is baseless.
That leads us to Maarouf’s contention that
Walker discriminated against him when it
terminated his employment. In response, Walker
asserted that it terminated him based on a
documented history of poor work performance. The
district court held that Maarouf failed to raise
sufficient allegations of pretext to survive
summary judgment. Maarouf’s brief on appeal thus
centers on the pretext argument. Specifically, he
argues that the justification provided by Walker
for the termination, poor work performance, was
not the real reason for its decision. In support
of that contention, he points to discriminatory
comments allegedly made by his supervisor Theresa
Allen, the lack of equivalent training
opportunities, and alleged inconsistencies
between the performance comments and their
supervision of him. We have already rejected his
argument regarding the alleged disparity in
training opportunities, and therefore he can
succeed only if the remaining arguments are
valid.
Maarouf presented significant evidence of
discriminatory remarks by Allen, which would
alone cast doubt on the basis for the termination
if Allen was the one who made the decision to
terminate his employment or influenced that
decision. Maarouf related numerous statements
allegedly made by Allen which belittled the
Muslim religion and disparaged Arab people.
Moreover, Maarouf presented an affidavit from
another employee, Barbara Boyles, attesting that
Allen made remarks evincing a discriminatory
animus towards Maarouf based on his Arabic
heritage and Muslim faith. Those comments,
although not tying the termination to his
heritage and faith and thus not providing direct
evidence of discrimination, provide substantial
evidence that Allen’s opinion of Maarouf was
clouded by her discriminatory animus. We have
previously held that
[t]here is only one situation in which the
prejudices of an employee, normally a subordinate
but here a coequal, are imputed to the employee
who has formal authority over the plaintiff’s
job. That is where the subordinate, by concealing
relevant information from the decisionmaking
employee or feeding false information to him, is
able to influence the decision. Conn v. GATX
Terminals Corp., 18 F.3d 417, 420 (7th Cir.
1994); Gusman v. Unisys Corp., 986 F.2d 1146,
1147 (7th Cir. 1993); Shager v. Upjohn Co.,
supra, 913 F.2d at 405. In such a case, the
discriminatory motive of the other employee, not
the autonomous judgment of the nondiscriminating
decision-maker, is the real cause of the adverse
employment action. If the other employee merely
utters a hostile stereotype, he is not
manipulating the decision.
Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394,
1400 (7th Cir. 1997). Accordingly, if the
perception of poor work performance was based
upon Allen’s input, then Maarouf has presented
sufficient evidence of pretext to survive summary
judgment.
The perception of inadequacies in Maarouf’s
work performance, however, did not arise solely
from Allen, but was also independently noted by
his other supervisors. For instance, John
Muszkiewicz, Allen’s supervisor and the manager
of Quality Assurance, met with Maarouf in June
1994 to discuss performance problems. His notes
from that meeting reflect that he expressed
concerns with Maarouf’s job performance based on
his own observations and input from others
including Allen. Those performance concerns
centered on Maarouf’s poor use of time, tendency
to clock in early and out late, inadequate
quantity of work, and subpar programming skills.
Furthermore, Gary Frey, who was Maarouf’s
supervisor prior to Allen, reviewed Muszkiewicz’s
notes and stated that they were consistent with
performance problems he recalled noting in early
1994. In July 1994, Tim Trine replaced
Muszkiewicz, and he also noted performance
problems. For instance, Trine stated that he
heard from several sources, including
Muszkiewicz, that Maarouf had been observed
sleeping on the job during the third shift. Trine
and Allen met with Maarouf and informed him that
he needed to improve in a number of areas such as
programming, completion of assigned tasks,
ability to work independently, reading of
blueprints, and length of breaks. In fact,
Maarouf does not dispute his deficiencies in
programming. Ultimately, Maarouf was terminated
after receiving a universally poor evaluation
from Allen in January 18, 1995, and then taking
an excessive amount of time to locate catalogs
and order certain tools pursuant to Allen’s
request. He took anywhere from three hours, by
Maarouf’s testimony, to eight hours by Allen’s
accounting, to perform that task. Allen provided
a performance report to Trine, and Trine decided
to terminate Maarouf’s employment.
Even discounting entirely Allen’s perceptions
regarding Maarouf’s work performance, Maarouf has
failed to demonstrate pretext because three other
supervisors independently noted similar problems
with his performance. Therefore, the taint of
Allen’s discriminatory comments does not extend
to those independent judgments regarding his
performance. Maarouf has presented no viable
argument that those supervisors were also
motivated by discrimination in their assessments
of his performance, or that their opinions were
based on Allen’s perceptions rather than their
own experience with Maarouf. Therefore, he has
failed to establish that the performance concern
was not the real reason for the decision to
terminate his employment. Accordingly, the
district court properly granted Walker summary
judgment on the claims regarding the termination,
training, and promotion.
II.
We are left, then, with Maarouf’s claim that
Walker terminated him in retaliation for his
complaints of discrimination. In order to succeed
on his retaliation claim, Maarouf must establish
that he engaged in statutorily protected
expression, he suffered an adverse action by his
employer, and there was a causal link between the
protected expression and the adverse action.
Alexander v. Gerhardt Enterprises Inc., 40 F.3d
187, 195 (7th Cir. 1994). Maarouf’s support for
his retaliation claim rests largely on the timing
of the termination. According to Maarouf, on
January 19, 1995, he complained to Pat Tusing, a
human resources coordinator, about his poor
evaluation from Allen and he alleged
discrimination. On January 23, 1995, Maarouf
claims that he spoke with Tusing again, and
Tusing said she had spoken about the complaint
with Steven Busch, who was head of Human
Resources. Maarouf also notes that he met with
Trine on January 23 as well. Maarouf was fired on
January 25. He argues that the timing of the
termination renders it retaliatory.
The critical issue here, however, is whether
the person who made the decision to terminate his
employment was aware of the discrimination
allegations at the time, because absent such
knowledge Maarouf lacks a causal link between the
termination and the complaint of discrimination.
See Dey v. Colt Construction & Development Co.,
28 F.3d 1446, 1458 (7th Cir. 1994). The decision
to terminate Maarouf’s employment was made by
Trine, and was then reviewed by Busch, Allen and
Andrew Weeks, the plant manager. At this stage of
the proceedings on summary judgment, Maarouf need
not prove by a preponderance of the evidence that
Trine was aware of his discrimination complaint,
but he must at least produce evidence that would
support an inference that Trine was so aware. Id.He has failed to do that here. Trine maintains
that he was not aware of the discrimination
allegation when he made the termination decision
and Maarouf has pointed to no evidence in the
record that refutes Trine’s statement. Maarouf
submitted portions of his deposition in support
of his motion for summary judgment, but his
statements regarding his communications with
Trine at the January 23 meeting are generally
vague and non-responsive. When asked whether he
discussed the alleged discrimination with Trine,
he repeatedly states only that Trine did not want
to hear anything more from him and he could not
get Trine’s attention. At one point, however, he
provides a clearer answer. When asked whether, at
that meeting with Trine, he discussed his belief
that he had been treated differently from other
employees because of his Arabic heritage, Maarouf
answered "no." Similarly, when queried whether he
discussed with Trine evidence of how he had been
treated differently from other employees because
of his Muslim religion, he responded "not at that
meeting." Finally, Maarouf had an opportunity
later in the deposition to further clarify this
issue in the following colloquy:
Q You raised that concern [of discrimination]
with Pat Tusing but you didn’t raise that with
Mr. Busch or Mr. Trine, correct?
A As I said, Mr. Trine told me don’t say
nothing, don’t speak, don’t answer, don’t argue,
don’t discuss, don’t say nothing, anything you
say don’t count for nothing anyway, Anything
Jamal going to say don’t count for nothing.
Q Is the answer to my question yes or no?
A Repeat the question.
MR. ZIMMERMAN: Would you read--
That unfortunately is all that we have. Maarouf
did not supply the next page of the deposition,
which presumably would have firmly established
whether Trine was notified of the discrimination
before he made the decision to terminate
Maarouf’s employment. Because he has failed to
identify any evidence that Trine was aware of the
discrimination allegations at the time of the
termination decision, he has not established any
causal connection between the discrimination
allegations and the termination. The district
court properly granted summary judgment on the
retaliation claim.
For the reasons stated above, the decision of
the district court is affirmed.