Pratt, Paul C. v. NiSource, Inc.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 26, 2006*
Decided April 26, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-2544
Appeal from the United States District
PAUL C. PRATT, Court for the Northern District of
Plaintiff-Appellant, Indiana, Hammond Division
v. No. 2:03-cv-246
NISOURCE, INC., and NIPSCO, James T. Moody,
Defendants-Appellees. Judge.
ORDER
Paul Pratt brought this suit under 42 U.S.C. § 1981 against NiSource and its
subsidiary NIPSCO, a natural gas and electric utility where he worked, claiming he
was denied promotions, assigned a small and noisy cubicle, and ultimately fired
because he is black. The claims against NiSource were dismissed after Pratt agreed
that, as a holding company without employees, it was not a proper defendant. The
district court went on to grant summary judgment for NIPSCO because Pratt did
not establish a prima facie case that any of NIPSCO’s alleged actions were
discriminatory or that its proffered reasons were pretextual. We affirm.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2544 Page 2
Pratt began working at NIPSCO in 1991 as a trainee and after 18 months
became a “facilities engineer,” responsible for managing internal building projects
for about 30 NiSource facilities. Nancy Hechlinski became his supervisor in 1996
and was responsible for completing his annual performance review. In 1998
Hechlinski reviewed his performance as poor in scheduling and time management.
For three months in 1998 and early 1999, Pratt took on the duties of a “facilities
services supervisor” who was on medical leave. Pratt returned to the position of
facilities engineer afterwards, but retained certain supervisory duties. In 1999
some of Pratt’s NiSource customers complained about his performance. As a result
Hechlinski place Pratt on a three-month probation that was twice extended for a
month. Hechlinski’s 1999 review of Pratt’s performance reflected his continuing
problems with scheduling and time management. In 2000 he was removed from a
project for poor performance.
In July 2001 Hechlinski assigned Pratt to work as a “project coordinator” on
a project in the maps and records department. Hechlinski neglected to immediately
request a title change for Pratt, but she did so after three months, and made the
change retroactive. She did not, however, increase his pay because she did not
consider the move a promotion. When Pratt arrived at the maps and records
department, there were already three other project coordinators and several
“bargaining unit members” working in the office. Pratt was assigned to a small
cubicle next to a noisy plotter device until some bargaining unit members left and
the space was reconfigured to hold an additional full-sized cubicle. Diane Buche,
the head of the project Pratt was working on, reported to Hechlinski that Pratt was
having problems with timeliness and organization, and Hechlinski noted these
issues in her 2002 performance review. Around that time NIPSCO underwent a
reorganization and Hechlinski was required to select one position in her
department for elimination. She chose Pratt’s.
At summary judgment, the judge first dismissed as time-barred Pratt’s claim
that he should have received a promotion in 1998. Then, given the absence of direct
evidence of discrimination, the judge analyzed Pratt’s remaining claims under the
indirect method and held that Pratt could not make out a prima facie case. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The judge reasoned that
Pratt lacked evidence of an adverse employment action in delaying a title change
and denying a pay raise when he became a project coordinator because the move
was lateral, not a promotion. As to Pratt’s claims based on his cubicle assignment
and his termination, the judge reasoned that he lacked evidence of similarly
situated employees. The court also held that Pratt could not establish that
NIPSCO’s stated reasons for assigning him the smallest and noisiest cubicle—Pratt
was the newest person in a crowded office—and selecting his position for
down-sizing—Pratt was the worst worker in his department—were pretextual.
No. 05-2544 Page 3
Pro se on appeal, Pratt first renews his contention that NIPSCO
discriminated against him in 1998 by assigning him the duties of “facilities
supervisor” without awarding him a title change or pay raise. Nowhere in his brief,
however, does he dispute or even mention the district court’s finding that this claim
was barred by the statute of limitations. The claim was barred and that precludes
any contention that it should have prevailed on the merits. See 28 U.S.C. § 1658;
Dandy v. United Parcel Serv. Inc., 388 F.3d 263, 269 (7th Cir. 2004).
Pratt also disputes summary judgment on his claim that NIPSCO
discriminated against him by neglecting to change his title until three months after
he took on the duties of “project coordinator” and, even after changing his title, did
not increase his pay. But Hechlinski testified that the move from facilities engineer
to project coordinator was lateral. Pratt points to no evidence that the move was in
fact a promotion. Thus we cannot disturb the district court’s finding that he did not
suffer an adverse employment action.
Pratt next challenges summary judgment on his claim that, for eight of the
eight-and-a-half months he worked as a project coordinator in the maps and records
department, he was stationed at a smaller and noisier cubicle than the other project
coordinators. He disputes the district court’s finding that the other project
coordinators were not similarly situated. But even if Pratt could establish that he
was similarly situated, he would in no way undermine the district court’s finding
that he failed to show NIPSCO’s stated reason——that the office was too crowded
for another full-sized cubicle until other occupants left——was a pretext. Pratt does
not address that finding or point to any evidence that would allow us to conclude
that NIPSCO’s stated reason was not genuine.
Pratt also disputes summary judgment on his claim that NIPSCO selected
his position for down-sizing because he is black. He challenges the district court’s
finding that he failed to show NIPSCO’s stated reason for eliminating his
position—that he was the “poorest performer” in his department—was pretextual.
To support its proffered reason, NIPSCO submitted: (1) the testimony of his
supervisor that she was unsatisfied with Pratt’s performance, in particular as it
related to scheduling, time-management, and being at the office when he was
supposed to be; (2) the negative performance reviews; (3) customer complaints; and
(4) the testimony of Buche and another manager in the maps and records
department that Pratt’s projects were late and unsatisfactory. In response, Pratt
offered his own testimony. According to Pratt, scheduling was not a significant part
of his duties and his supervisor confronted him only once about poor
time-management. He opined that his negative review was racially motivated and
that the number of customer complaints he received was not excessive. And, he
asserted, his projects were well-done and on time. In short, Pratt offered nothing
but his own self-interested assertions to rebut NIPSCO’s evidence. The district
No. 05-2544 Page 4
court properly found that Pratt’s opinion of his own performance was irrelevant and
therefore insufficient to create a triable issue of fact. See Adusumilli v. City of Chi.,
164 F.3d 353, 363 (7th Cir. 1998) (“Self-serving statements do not shed any light on
whether the employer honestly based its employment decision on performance-
related considerations, which is the focus of our inquiry in these cases”) (internal
quotations omitted); Gustovich v. AT&T Commc’ns, Inc., 972 F.2d 845, 848 (7th Cir.
1992) (“An employee’s self-serving statements about his ability . . . are insufficient
to contradict an employer’s negative assessment of that ability”).
Finally, Pratt seeks to add a claim of retaliatory discharge and a claim that
he was singled out for harsher discipline because of his race, but we will not
consider these arguments because he did not articulate them in the district court.
See McGoffney v. Vigo County Div. of Family and Children, Family and Soc. Servs.
Admin., 389 F.3d 750, 753 (7th Cir. 2004) (parties cannot on appeal raise issues not
presented to district court); Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir.
2002) (issues not raised in the district court are waived).
AFFIRMED.