Petition for Writ of Certiorari — Abioye v. Sundstrand Corp.

Supreme Court, Us.

FILED

981551 MAR 29 1999

_OFFICE OF THE CLERK

a ae

Supreme Court of ine Uniiie sa?

October Tera. 199%

NURAINI B. ABIOYF.,

Petitioner

SUNSTRAND CORPORATION

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

RENE HERNANDEZ, ESQUIRI

Counsel of Record

Law Office of Rene Hernandez

613 South State Street

Belvidere, Illinois 61008

(815) 544-4219

Appellate Service: Curry & Taylor (800) 222-8738/Appellate@webtv.com

= BEST AVAILABLE COPY

QUESTIONS PRESENTED FOR REVIEW

l. WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT ERRED IN AF-

FIRMING SUMMARY JUDGMENT BECAUSE THE AP-

PELLATE COURT HAS IMPROPERLY UTILIZED THE

MCDONNELL DOUGLAS EVIDENTIARY FRAME-

WORK IN AGE DISCRIMINATION CASES.

2. WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT ERRED IN AF-

FIRMING SUMMARY JUDGMENT BECAUSE THE

COURT FAILED TO UTILIZE THE MIXED MOTIVE EVI-

DENTIARY STANDARD UNDER TITLE VII OF THE

CIVIL RIGHTS ACT OF 1964, 42 U.S.C. § 2000e et. seq.

AND THE CIVIL RIGHTS ACT 1991, 42 U.S.C. § 1981a.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............. i

COPTINTGIS BAR ss evan suid tae yikes dannse ss) come l

STATEMENT OF THE BASIS OF JURISDIC-

TIOSLOFP THE SUPREME COUR och Gass ccesandeven l

‘ONSTITUTIONAL, STATUTORY AND ORD-

NAIR: FV EORRITED sca cc sian cckea ce bensdiahadeteeon l

SS LAGS as Ace A VAES GPAs incon eds spond che wonene 4

ARGUMEIE e656 Osh LAA ee 6

1.THE UNITED STATES COURT OF AP-

PEALS FOR THE SEVENTH CIRCUIT

ExRED IN AFFIRMING SUMMARY JUDG-

MENT BECAUSE THE APPELLATE COURT

HAS IMPROPERLY UTILIZED - THE

MCDONNELL DOUGLAS EVIDENTIARY

FRAMEWORK IN AGE DISCRIMINATION

CASED... vcsvcndaces ss saccenca ee eeerevate ies paare si 6

A.Whether The Appellate Court Erred In Util-

izing The McDonnell Douglas Evidentiary

Framework In Age Discrimination Cases. ........... 6

B.Whether The Appellate Courts In The Sev-

eral Circuits, Are In Disagreement As To The

Proper Evidentiary Requirements To Establish

A Prima Facie Showing Under McDonnell ......... 7

C.Whether The United States Court Of Ap-

peals For The Seventh Circuit Erred In Af-

firming Summary Judgment In The Instant

Case, Be cause The Court Misapplied The

McDonnell Douglas Evidentiary Framework. ....... 15

iii

2.THE UNITED STATES COURT OF AP-

PEALS FOR THE SEVENTH CIRCUIT

ERRED IN AFFIRMING SUMMARY JUDG-

MENT BECAUSE THE COURT FAILED TO

UTILIZE THE MIXED MOTIVE EVIDEN-

TIARY STANDARD UNDER TITLE VII OF

THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C.

§ 2000e et. seq) AND THE CIVIL RIGHTS

ASE: Re See BP ooo ko has v bccb cob cows 17

A Whether The United States Court Of Ap-

peals For The Seventh Circuit Court Has Prop-

erly Articulated The Standard of Review For A

Mixed Motives Case Under Title VII Of The

Civil Rights Act of 1964, 42 U.S.C. § 2000e

et. seg. And The Civil Rights Act of 1991. 42

BRE OAR SL BQ Ca aN ae 2 Re a Rae a ne 17

B.Whether The United States Court Of Ap-

peals For The Seventh Circuit Erred In Af-

firming Summary Judgment In The Instant

Case, Because The Court Failed To Utilize

The Mixed Motive Evidentiary Standard. ........... 19

MEI. 611050 oa pte SUN aka nucPh cocthcned cio ces 21

APPENDIX

I MT NNN sk us Sosa ca rectedccedecte: la

Leeereee Out BONNIE 2 ee Pee lla

Additional Statutory Provisions ..................... 23a

iV

TABLE OF AUTHORITIES

Cases

Combs vy. Plantation Patterns,

106 F.3d 1519, 1532 (11th Cir. 1997) .......

Equal Employment Opportunity Comm'n v.

Our Lady of the Resurrection Med. Ctr.,

77 F.3d 145, 149-50 (7th Cir.1996) .........

Hartley v. Wisconsin Bell,

BZA Fi3e GOP CIO) GAR. DEAE) sc nes ccna vences

Kline v. Tennessee Valley Authority,

423 F Sead (Oth Cir PIGS Yi is ins dative

Landgraf v. USI Film Products,

511 U.S. 244, 251, 128 L. Ed. 2d 229,

$14.5. Ce 14835, 1489 (994) oo ces i scr vense

McCoy v. WGN,

957 F.2d 368, 373 (7th Cir. 1992) ...........

McDonnell Douglas v. Green,

GLE UL. Fees CTO) Bahan a caxt Cavcaawscess'

Nidds v. Schindler Elevator Corp.,

113 F.3d 912, 918 (9th Cir. 1996), cert.

denied, 118 S. Ct. 369 (1997) ............4..

O'Connor v. Consolidated Coin Caterers,

517 U.S. 608, 134 L. Ed. 2d 433, 1168S.

ON, TAT CRO: 5nd ks tdigennd aacaiae ewe th vex

Price Waterhouse v. Hopkins,

490 U.S. 228, 104 L. Ed. 2d 268, 109 S.

OE, TET AEE PO) cine vnc capucwenwas ca heesysciuas

Rabinovitz v. Pena,

89 F.3d 482, 487 (7th Cir.1996) .............

Page

Richter v. Hook-SupRx, Inc.,

142 F.3d 1024, 1031-32 (7th Cir. 1998) ............ 1]

Riordan v. Kempers,

831 F.2d 690, 697-698 (7th Cir. 1987) ............. 13

Russell v. Acme-Evans Co..

ik te Se OR PE 11

Ryther v. KARE,

108 F.3d 832 (8th Cir. 1997), cert. de-

a Pag gg, Se Tee | 0 1 NA ee 9

Sheridan v. E.I. DuPont de Nemours & Co..

100 F.3d 1061, 1067,1078 (3d Cir.) (en

_ banc), cert denied 117 S. Ct. 2532 (1997) ........ 8,14

St. Mary's Honor Center v. Hicks,

DE Rie RE 8,9, 10, 11

Texas Dep't of Community Affairs v. Burdine,

RIO LD. BOG Boe OG LIGRTY oof ivi kk. y)

Warren v. City of Carlsbad,

58 F.3d 439, 443 (9th Cir. 1995), cert. de-

GG, PEO SOG TOs CPS hired vs bok ieee ccs, 10

Statutes

AS a ee Sais sis ced pads <4 8 a l

Bo eee EE: hohe van Sioe tan ckcesin bie ent bbe 4

Fin BE ceig gn 3 1) Seaiasatiipmecaint gilt 5 thy tn lara Se aceages Os Cae l

EAT Race OE as dia wisiaad delaue sd khweceic IK bukis oe 3

GEN Sis PO Se es ee Se ed I 4

Dh Caiere G EMME Se eee cece e eee lice eco 3

42 U.S.C, § 2000 CeNZ MMI WANG) on noc cccunsecccacee 20

Ga UE. F SOP MN) 6hksp Sik bodecgeea eee 18

Gh Share EE is a vn scab ts aos cA oes 4

vi

42 U.S.C. § 2000e- 2(m) ...... cece cece cece eeneeeeees 3,17

42 U.S.C. §2000(e)-S(g)B)(1) .-.- cece cece eee eee eens 18

l

OPINIONS BELOW

The published opinion of the United States Court of

Appeals for the Seventh Circuit is set forth in Exhibit A, p. la

and reported at 154 F 3d 364. The judgment of the United

States District Court for the Northern District of Illinois,

Western Division is Exhibit B, p. 11a.

STATEMENT OF THE BASIS OF JURISDICTION OF

THE SUPREME COURT

The statutory provision for this Court's jurisdiction is

28 U.S.C. § 1254. The United States Court of Appeals for the

Seventh Circuit issued its Opinion in this case on December

28, 1998. No request for rehearing was made. This Petition

is timely filed within 90 days of the Opinion.

CONSTITUTIONAL, STATUTORY

AND ORDNANCE PROVISIONS

l. 29 U.S.C. § 623(a) provides:

"It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against

any individual with respect to his compensa-

tion, terms, conditions, or privileges of em-

ployment, because of such individual's age;

2

(2) to limit, segregate, or classify his employ-

ees in any way which would deprive or tend to

deprive any individual of employment oppor-

tunities or otherwise adversely affect his status

as an employee, because of such individual's

age; or

(3) to reduce the wage rate of any employee in

order to comply with this chapter."

The Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(a)

a provides:

"It shall be an unlawful employment practice

for an employer-

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate

against any individual with respect to his com-

pensation, terms, conditions, or privileges of

employment, because of such individual's

race, color, religion, sex, or national origin; or

(2) to limit, sesregate, or classify his employ-

ees or applicants for employment in any way

which would deprive or tend to deprive any in-

dividual of employment opportunities or oth-

erwise adversely affect his status as an

employee, because of such individual's race,

color, religion, sex, or national origin."

3

42 U.S. C. § 2000e-2(m) provides:

",..an unlawful employment practice is estab-

lished when the complaining party demon-

strates that race, color, religion, sex, or

national origin was a motivating factor for any

employment practice, even though other fac-

tors also motivated the practice."

42 U.S.C. § 1983 provides:

"Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress."

42 U.S.C. § 1981 provides:

"(a) All persons within the jurisdiction of the

United States shall have the same rights in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and

to the full and equal benefit of all laws and

proceedings for the security of persons and

property as is enjoyed by white citizens, and

shall be subject to like punishment, pains,

4

penalties, taxes, licenses, and exactions of

every kind, and to no other.

(b) For purposes of this section, the term

"make and enforce contracts’ includes the

making, performance, modification, and termi-

nation of contracts, and the enjoyment of all

benefits, privileges, ternis, and conditions of

the contractual relationship.

(c) The rights protected by this section are pro-

tected against impairment by nongovernmental

discrimination and impairment under color of

State Law."

STATEMENT OF THE CASE

On February 13, 1996, Plaintiff, Nuraini B. Abioye

filed a two count complaint against Defendant, Sundstrand

Corporation (Sundstrand), alleging that he was terminated

from his employment in violation of the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. § 623 et. seq. and be-

cause of his race and national origin in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, Rec. 1

at 1-2.'

The case proceeded on a timely schedule, as no con-

tested discovery motions were brought. Defendant brought a

motion for summary judgment on or about April 8, 1997.

The motion was contested and Plaintiff filed a response to

' Rec cites are to the actual record should the Court desire to re-

view it.

5

Defendant's Motion on or about June 10, 1997. Plaintiff's re-

sponse included a 12 (n) Statement, and affidavits of Plain-

tiff, Jay Vaidya and Alex Krinikas. Defendant filed a Motion

to Strike Plaintiff's 12(n) Statement on or about July 28,

1997. On August 26, 1997, the District Court granted in part

and denied in part Defendant's Motion. On September 5,

1997, Plaintiff filed a Motion to Reconsider the Court's Order

of August 26, 1997, as well as Plaintiff's Amended 12(n)

Statement. On September 9, 1997, the court denied Plaintiff's

Motion to Reconsider. On September 26, 1997, the Defen-

dant filed another Motion to Strike Plaintiff's 12(n) State-

ment. Plaintiff filed a Response to Defendant's Motion to

Strike on or about October 2, 1997. The District Court issued

a ruling on October 10, 1997, granting in part and denying in

part Defendant's Motion. On October 20, 1997, the Defen-

dant filed a response to Plaintiffs 12(n) Statement. On De-

cember 23, 1997, the District Court issued its Memorandum

Opinion and Order granting Defendant's Motion for Summary

Judgment. Plaintiff filed a timely Motion to Reconsider on

January 2, 1998. The District Court denied Plaintiff's Motion

to Reconsider on January 6, 1998. Plaintiff filed a timely No-

tice of Appeal on January 20, 1998.

This matter was before the United States Court of Ap-

peals for the Seventh Circuit where Plaintiff appealed the de-

cision of the District Court. Plaintiff argued before the

Appellate Court that the District Court erred in granting sum-

mary judgment for Defendant because Plaintiff had presented

more than enough evidence to show discrimination and also

challenged the use of the McDonnell Douglas v. Green, 411

U.S. 792, (1973), evidentiary framework used by the Seventh

Circuit Court of Appeals and the rest of the Appellate Cir-

cuits. The Seventh Circuit Court of Appeals heard oral

Rec | at 1-10.

6

arguments on November 6, 1998, and decided the matter on

December 28, 1998.

ARGUMENT

I. THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT ERRED IN AFFIRMING SUM-

MARY JUDGMENT BECAUSE THE APPELLATE

COURT IMPROPERLY UTILIZED THE MCDONNELL

DOUGLAS EVIDENTIARY FRAMEWORK TO AGE

DISCRIMINATION CASES.

A. The Appellate Court Erred In Utilizing The

McDonnell Douglas Evidentiary Framework

In Age Discrimination Cases.

The District Courts of Illinois and its Appellate Cir-

cuit Court erred in utilizing the McDonnell Douglas eviden-

tiary framework to age discrimination cases without proper

authority from the United States Supreme Court or the United

States Congress. In O'Connor v. Consolidated Coin Cater-

ers, 517 U.S. 608, 134 L. Ed. 2d 433, 116 S. Ct. 1307 (1996),

Justice Scalia has stated that the use of the McDonnell Doug-

las evidentiary framev ork to age discrimination claims has

never been decided as a correct application. The Appellate

Courts have applied McDonnell Douglas but they are differ-

ent in their approach as to what McDonnell Douglas is or is

not.

"In assessing claims of age discrimination

brought under the ADEA, the Fourth Circuit,

like others, has applied some variant of the ba-

sic evidentiary framework set forth in

7

McDonnell Douglas. We have never had oc-

casion to decide whether that application of

the Title VII, rule to the ADEA context is cor-

rect, but since the parties do not contest that

point, we shall assume it. Cf. St Mary's

Honor Center, supra at 506, n. 1, 125 L. Ed.

2d 407, 113 S. Ct. 2742 (assuming that "the

McDonnell Douglas framework is fully appli-

cable to racial-discrimination-in-employment

claims under 42 U.S.C. § 1983 [42 U.S.C. §

1983])."

This Court has never given its permission or its for-

mal approval of the use of McDonnell Douglas evidentiary

framework in age discrimination cases. As late as 1994, the

U.S. Congress made revisions to the ADEA and yet, they did

not provide for the usage of the McDonnell Douglas frame-

work to ADEA cases. There is no authority by this Court that

the circuits are to use McDonnell Douglas and in fact they are

separated as to how to apply it, if it does apply.

B. The Appellate Courts Are In Disagreement As

To The Proper Evidentiary Requirements To

Establish A Prima Facie Showing Under

McDonnell Douglas.

The Appellate Courts are at odds as to what consti-

tutes the elements of the McDonnell Douglas framework.

The courts vary as to the evidentiary requirements for the sec-

ond prong and pretext under the McDonnell Douglas frame-

work. The circuits are varied as to which pretext standard

should be utilized: pretext only; pretext plus; or permissive

pretext, in order to establish a prima facie showing under

McDonnell Douglas. This Writ is necessary to provide the

8

final authority as to whether McDonnell Douglas applies to

ADEA cases, and if so, the proper application,

Court of appeals remain divided over how to apply

this Court's decision in St. Mary's Honor Center v. Hicks, 509

U.S. 502 (1993). The question is whether this Court has set

forth a "pretext-plus" standard, "permissive pretext" or "pre-

text only". Justice Scalia's language in Hick's has left the

courts divided and the appellate circuits applying the afore-

mentioned standards. In Hick's, Justice Scalia tells us that a

plaintiff must show not only that the employer's "articulated,

nondiscriminatory reason" is false, but also that the real rea-

son for the employers decision was discrimination. /d. In the

same opinion he also states that "[t}he fact finder's disbelief

of the reasons put forward by the defendant (particularly if

disbelief is accompanied by a suspicion of mendacity) may,

together with the elements of a prima facie case, suffice to

show intentional discrimination." St. Mary's Honor Center v.

Hicks, 509 U.S. 502 (1993),

The circuits have varied in their approaches in apply-

ing Hicks. The Third Circuit has adopted the pretext only po-

sition. See Sheridan vy. E.l. DuPont de Nemours & Co., 100

F.3d 1061, 1067,1078 (3d Cir.) (en banc), cert denied 117 S.

Ct. 2532 (1997). "A plaintiff may survive summary judg-

ment (or in this case judgment as a matter of law) if the em-

ployer’s proffered reasons were not its true reasons for the

challenged action." The en banc decision held it was not nec-

essary for the plaintiff to provide more evidence of discrimi-

nation once the finder of fact rejects the employer's

explanation. Under this "pretext only" standard, Plaintiff in

the instant case would survive summary judgment.’

* See Section C of Plaintiff's Brief.

i

j

;

4

ti NONE Se als Biever ae ay a tasie set ous i ad aR Ree

9

The Fourth Circuit, in O'Connor v. Consolidated Coin

Caterers Corp., 517 U.S. 308, 134 L. ed. 2d 433, 117 S. Ct.

608 (1996), held that stray or isolated comments were not

sufficient to create a jury issue of age discrimination. There,

the Fourth Circuit states that a "plaintiff bears the ultimate

burden of proving both that the employers asserted reason

was pretextual and that the plaintiff's age was the true reason

for the challenged employment decision." (quoting St. Mary's

Honor Center v. Hicks, 509 U.S, 502, at 515-17, 113 S. Ct.

2742 at 2752). The court unfairly treated the age-based com-

ments as having no probative value. The age comments are

relevant as part of a circumstantial case. But, the Fourth Cir-

cuit Court ignored the statements as circumstantial evidence.

Yet in McDonnell Douglas, the Supreme Court itself cau-

tioned against applying the circumstantial evidence frame

work in a "rigid, mechanized or ritualistic" fashion. Texas

Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 n.6

(1981). By ignoring the use of the comments as circumstan-

tial evidence, and viewing the plaintiff's-evidence as a whole,

the court has pigeon-holed a plaintiff's evidence as relevant

only as direct evidence.

The Sixth Circuit, in Kline v. Tennessee Valley

Authority, 128 F.3d 337 (6th Cir.1997), has held that this

Court has rejected both the pretext only standard and the pre-

text plus standard in its opinion in St. Mary's Honor Center y.

Hicks, 509 U.S. 502 at 509, 511 n. 4, 113 S. Ct. at 2748, at

2749 n. 4. The Sixth Circuit has offered a detailed examina-

tion of Hicks as well as approaches by other circuits, in

reaching its conclusion that the Supreme Court has directed a

permissive pretext approach.

The Eighth Circuit, in Ryther v. KARE, 108 F.3d 832

(8th Cir. 1997), cert. denied, 117 S. Ct. 2510 (1997), upheld a

10

jury's finding of age discrimination on the grounds that the

jury could infer pretext where the supervisor's explanation of

the good evaluations she gave plaintiff was her fear that he

would “fall apart" if she gave him a bad evaluation. The

Court discussed extensively the issue of pretext. The Court

pointed out that according to Hicks, "rejection of the defen-

dant's proffered reasons will permit the trier of fact to infer

the ultimate fact of intentional discrimination and ...'[n]o ad-

ditional proof of discrimination is required." /d. at 838, n. 5

(citing Hicks, 509 U.S. at 511, 113 S. Ct. at 2749). Under

this standard, Plaintiff in the instant case has presented suffi-

cient evidence to successfully overcome summary judgment.’

The pretext only position has been approved by the

Ninth Circuit. Warren v. City of Carlsbad, 58 F.3d 439, 443

(9th Cir. 1995), cert. denied, 116 S. Ct. 1262 (1996); Nidds v.

Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996),

cert. denied, 118 S. Ct. 369 (1997). The Court articulated

that a plaintiff proves pretext by producing evidence to allow

a reasonable fact finder to conclude either: (1) that the alleged

reason for the employee's discharge; or (2) the true reason for

his discharge was a discriminatory one. Nidds, 113 F.3d at

918, (citing Warren, 58 F.3d at 443 (stating that the plaintiff

"must produce evidence of facts that either show a discrimi-

natory motive or shov. that the [employer's] explanation for

his rejection is not credible").

The Eleventh Circuit has rejected the prextext-plus

proof of age discrimination used in the Seventh Circuit. See

cf., Combs v. Plantation Patterns, 106 F.3d 1519, 1532 (11th

Cir. 1997). The Court pointed out that a plaintiff needs to

merely raise a question of fact about the employer's reasons

for discharge in order to defeat a motion for summary

* See Section C of Plaintiff's Brief.

1]

judgment. Again, under this standard Aboiye would meet his

burden.’

The Seventh Circuit's opinion in this case states that

"[w]hen the defendant has proffered an explanation for termi-

nation that the court determines to be nonpretextual, the court

may avoid deciding whether the plaintiff has met his prima

facie case and instead decide to dismiss the claim because

there is no showing of pretext. See Equal Employment Op-

portunity Comm'n v. Our Lady of the Resurrection Med. Ctr.,

77 F.3d 145, 149-50 (7th Cir.1996)....In demonstrating pre-

text, a plaintiff must show more than that the employer's deci-

sion was incorrect; plaintiff must also show the employer lied

about its proffered explanation. See Russell v. Acme-Evans

Co., 51 F.3d 64, 68 (7th Cir. 1995). Even an employer's erro-

neous decision making, exhibiting poor business judgment, is

not sufficient to establish pretext. See Richter v. Hook-

SupRx, Inc., 142 F.3d 1024, 1031-32 (7th Cir. 1998)."

It should be noted that under the Seventh Circuit's ap-

proach to pretext, there is very little chance a plaintiff could

prove discrimination under McDonnell Douglas unless he/she

possessed direct evidence of discrimination. Under the fore-

going analysis, a defendant could easily overcome any doubt

the plaintiff could cast on its nondiscriminatory reason by just

rephrasing or stating its case as erroneous, or poor business

judgment. The approach by the Seventh Circuit seems to be

one that is at odds with this Court's directives in Hicks and

McDonnell Douglas.

In fact, the Seventh Circuit has all but rejected any

evidence a plaintiff could provide. In Rabinovitz v. Pena, 89

F.3d 482, 487 (7th Cir.1996), the Seventh Circuit has

> See Section C of Plaintiff's Brief.

12

—

completely shut off any opinion evidence a plaintiff can offer

as to his own job abilities. Such opinion "carries no weight

in showing he performed up to legitimate expectations."

This also is problematic for any plaintiffs rebuttal of a defen-

dant's opinion of plaintiff's work. This completely throttles a

plaintiff's ability to prove the second prong of the McDonnell

Douglas approach. As this Court is probably aware, it is the

employer who holds the records, the employees files and ad-

ditional paperwork during the course of employment. If an

employer is discriminating against one of its employees, what

difference would it make to the employer to cover it up with

falsehoods such as written and oral statements. Of course,

the majority of employers would not condone such activity

but we know that even our modern humanity is quite capable

of lying, cheating and falsifying. Here, the District Court did

not even bother to get past the second prong of the McDon-

nell Douglas framework. In implementing the current evi-

dentiary approach, the District Court and the Appellate Court

of the Seventh Circuit, are making credibility judgments as to

whether a plaintiff has performed up to the employer's legiti-

mate expectations.

Further, the Seventh Circuit has not only rejected

opinion evidence of plaintiffs, but also opinion evidence of

prior supervisors, employee's mentors and co-workers. Rabi-

novitz v. Pena, 89 F.3d 482 (7th Cir. 1996). In doing so, the

District Court and the Appellate Court have again made

credibility judgments as to the testimony and opinions of both

the defendant and the plaintiffs witnesses. Further, in sum-

marily rejecting opinion evidence of mentors, co-workers and

former supervisors, the courts have in affect concluded that

the employer's proffered reasons for discharge are true, unless

an employee has direct evidence of defendant's statements to

° See Exhibit A at 20a.

3

4

a

‘

bait cc DINGS GE iti PEE By NAVAN DEA WASNT a es Ltn a hal

a ae Nes Reape te See Oe ee

ee ee ee

13

the contrary. This distortion of the McDonnell Douglas bur-

den shifting method, undermines the Supreme Court's intent

to allow plaintiffs’ to use indirect evidence. The employee is

not in the position to have records of the employee's work

history or to be privy to defendant's comments and thoughts.

As Judge Posner explained, in Riordan v. Kempers, 831 F.2d

690, 697-698 (7th Cir. 1987):

"because most employment decisions

involve an element of discretion, alternative

hypotheses will always be possible and often

plausible. Only the very best workers are

completely satisfactory, and they are not likely

to be discriminated against the cost of dis-

crimination is too great. The law tries to pro-

tect the average worker and even below-

average workers against being treated more

harshly than would be the case if they were of

a different [protected class], but it has diffi-

culty achieving this goal because it is so easy

to concoct a plausible reason for both hiring,

or firing, or failing to promote, or denying a

pay raise to a worker who is not superlative."

Id.

Yet, when considering the evidence which the Sev-

enth Circuit requires in order to establish an employer's prof-

fered reason for discharge is pretextual, there is no protection

for the average or below average employee who does not es-

tablish direct evidence of discrimination. Further, the eviden-

liary requirement does not protect even the best employees,

who's employers files reflect a "concocted" plausible reason

for discharge. Under the current pretext-plus standard in the

14

Seventh Circuit, the easily concocted plausible reason for fir-

ing is accepted as true despite opinion evidence of the plain-

tiff, co-workers, mentors and former supervisors to the

contrary.

The pretext prong of the McDonnell Douglas burden

shifting test has been so narrowly applied as to render it inef-

fective for plaintiffs. In Hartley v. Wisconsin Bell, 124 F.3d

887 (7th Cir. 1997) (citing McCoy v. WGN, 957 F.2d 368,

373 (7th Cir. 1992), the court narrows pretext to any "foolish

or trivial or even baseless" reasons are enough for an em-

ployer to show a legitimate nondiscriminatory reason for dis-

charge, if the defendant honestly believes them. /d This

taken in conjunction with the courts disapproval of plaintiff's

own opinion evidence and opinion evidence of co-workers,

mentors, and former supervisors, again forces the plaintiff to

prove discrimination with direct evidence only. This is a

misapplication of McDonald Douglas Formula. The Su-

preme Court has not enunciated this standard used in the Sev-

enth Circuit.

As stated, the McDonnell Douglas burden shifting test

was adopted in order to allow employees to establish a case

of discrimination using indirect evidence. In order to allow

for plaintiffs to use tie indirect evidence method, the Court

should subscribe to the pretext only standard, as applied in

the Third Circuit. "A plaintiff may survive summary judg-

ment (or in this case judgment as a matter of law) if the plain-

tiff produced sufficient evidence to raise a genuine issue of

fact as to whether the employer's proffered reasons were not

its true reason for the challenged action." Sheridan v. E.1.

DuPont de Nemours & Co., 100 F.3d 1061, 1067, 1078 (3d

Cir.) (en banc), cert. denied 117 S. Ct. 2532 (1997). Once the

plaintiff has set forth evidence for which a fact finder would

ALE IRN RUS Ae eS

Sth ask RASA LAMA aa leli neces Lit hades: cottechi tek we

:

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15

reject the defendant's proffered reason, then the plaintiff may

avoid summary judgment. This is the proper standard for

summary judgment, because it allows the trier of fact to draw

an inference whether the evidence taken as a whole rises to

the level of discrimination.

OF The United States Court Of Appeals For The

Seventh Circuit Erred In Affirming Summary

Judgment In The Instant Case, Because The

Court Misapplied The McDonnell Douglas

Evidentiary Framework.

As previously pointed out, the United States Appel-

late Court of Appeals for the Seventh Circuit has misapplied

the McDonnell Douglas burden shifting method. Specifi-

cally, in the instant case, the District and Appellate Court

erred in granting summary judgment for Defendant, due to

this misapplication. Plaintiff, Aboiye, set forth sufficient cir-

cumstantial evidence of discrimination, utilizing McDonnell

Douglas, in order to avoid summary judgment. The District

and Appellate Court erred, because Plaintiff set forth a series

of activities for which a finder of fact could reasonably infer

that Defendant's proffered reason for discharge was not its

true reason.

Plaintiff submitted various performance reports, an-

nual raises and affidavits from co-workers, mentors, and past

supervisors to establish his satisfactory work performance.

Yet, the Court dismissed the evidence as insufficient, to over-

come summary judgment. Jay Vaidya, Plaintiffs former su-

pervisor and mentor at Sundstrand Corporation, set forth that

he worked with Plaintiff at Sundstrand and noted Plaintiff's

work product and skills as an engineer to by extremely well.’

” Vaidya Affidavit 44 6-8.

16

Further, a co-worker noted that Plaintiff was competent and

effective in doing his job.* The Court found Plaintiff's evi-

dence that his supervisor failed to place Plaintiff in a program

where he was lead man because the other engineers were not

ready to take orders from him, as inconsequential (all the en-

gineers where white).’ From 1989 to the time he was dis-

charged, Plaintiff was loaned out to other departments to

complete work.'® Yet, unlike other employees, upon comple-

tion of projects, Plaintiff was not allowed to automatically

come back to his department.'' Plaintiff also set forth evi-

dence of disparity in the evaluation process and testing.'’ The

Appellate Court incorrectly found this evidence insufficient

to overcome summary judgment.

The Appellate Court in rejecting the above evidence,

has established a pretext-plus standard of review which is

contrary to the original intent of the McDonnell Douglas test.

The pretext prong of the McDonnell Douglas burden shifting

test has been so narrowly applied as to render it ineffective

for almost any plaintiff. Plaintiff in the instant case, has es-

tablished under the McDonnell Douglas test, sufficient evi-

dence to raise a genuine issue of fact as to whether the

employer's proffered reasons were not its true reason for the

discharge. Therefore, the Appellate Court erred in granting

summary judgment in favor of Defendant.

* Krinickas affidavit 9 7-9.

” Plaintiff's 12(n) § 80.

° Plaintiff's 12(n) § 81.

'' Plaintiff's 12(n) § 81.

? Plaintiff's 12(n) § 82.

et

PETA he RE LE RCI I IES EIT eT oats Me LO.

PA EIS LION TEES SSE PFET Nee th SNPS, NTR

poe LO Fl ah IT era Oe

17

I. THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT ERRED IN GRANTING

SUMMARY JUDGMENT BECAUSE THE COURT

FAILED TO UTILIZE THE MIXED MOTIVE EVIDEN-

TIARY STANDARD UNDER TITLE VII OF THE CIVIL

RIGHTS ACT OF 1964, 42 U.S.C. § 2000e et. seq. AND

THE CIVIL RIGHTS ACT OF 1991, 42 U.S.C. § 1981.

A. The Seventh Circuit Court of Appeals Has Im-

properly Articulated The Standard of Review

For A Mixed Motives Case Under Title VII Of

The Civil Rights Act of 1964, 42 U.S.C. §

2000e et. seq. And The Civil Rights Act of

1991, 42 U.S.C. § 1981.

A "mixed motives" case is one in which an employ-

ment decision is made based on a mixture of legitimate and

illegitimate motives. Price Waterhouse v. Hopkins, 490 U.S.

228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). The Court

has held that once a plaintiff establishes that discrimination

played a motivating part in an employment decision, the de-

fendant may avoid a finding of liability only by proving that it

would have made the same decision even if it had not al-

lowed discrimination to play a role. /d. at 1787. After Price

Waterhouse, the 1991 Amendment of Title VII clarified the

mixed motive test. The Civil Rights Act of 1991, 42 U.S.C.

§ 2000e- 2(m); Landgraf v. USI Film Products, 511 U.S. 244,

251, 128 L. Ed. 2d 229, 114 S. Ct. 1483, 1489 (1994). The

Amendment added a subsection which states in part,

",.an unlawful employment practice is estab-

lished when the complaining party demon-

strates that race, color, religion, sex, or

national origin was a motivating factor for any

18

employment practice, even though other fac-

tors also motivated the practice."

Id.

Under the mixed motive test, if the defendant demon-

strates that the employee would have been discharged despite

the discrimination, then the employee may still be awarded

declaratory relief, injunctive relief and attorney's fees and

costs. 42 U.S.C. §2000(e)-5(¢)(B)(i).

The District Court and the Appellate Court have im-

properly articulated the mixed motive standard and erred in

failing to apply the mixed motive standard to the instant case.

The Appellate Court for the Seventh Circuit stated in the case

that summary judgment in favor of the employer is warranted

in a mixed motive case if there is "the presence of any accept-

able motive" for the discharge.'’ Yet, this is not the standard

articulated in the Statute. The very nature of a mixed motive

case invokes both discriminatory reasons and legitimate rea-

sons for the employment decision. The Statute states the

plaintiff needs to show that "even though other factors moti-

vated the practice” that discrimination was also a motivation.

See 42 U.S.C. § 2000(e)-5(g)(B)(i). Based on the Appellate

Court's misinterpretation of the mixed motive standard, the

Court summarily dismissed the test as viable in the case.

Therefore, the Appellate Court failed to apply the mixed mo-

tive test to the instant case and erred in granting summary

judgment.

It should be further noted, that the District Court

failed to even consider a mixed motives analysis. The Court

below articulated that mixed motives under Price Waterhouse

'S Exhibit A at 18a.

19

v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775

(1989), did not survive the Civil Rights Act of 1991 and

therefore did not even consider the analysis.'*

B. The United States Court Of Appeals For The

Seventh Circuit Erred In Affirming Summary

Judgment In The Instant Case, Because The

Court Failed To Utilize The Mixed Motive

Evidentiary Standard.

Here, the court's below failed to even consider the evi-

dence presented by Plaintiff. It is clear that the evidence has

shown a pattern of discriminatory treatment starting with

Plaintiffs evaluations that were changed by management.

Also, Plaintiff was not allowed to return to his original elec-

trical engineering group after being loaned out to another

group within the department at Sundstrand Corporation,'°

even though the practice and pattern was to allow an em-

ployee to always returned to his original group after being

loaned out.'® Here, Plaintiff was lent to "Research-Electrical

Group," yet he could not be promoted nor transferred back to

his original Electric Power Group. Then he was sent to

"Electronic Test Equipment Group" and again he was not al-

lowed to return to his original Electrical Power Group.” This

practice was contrary to established practice at Sundstrand.'*

This also showed that a black employee(Plaintiff) was treated

differently than his Caucasian counterparts. Further, Plaintiff

was forced to take a "test" while less senior, Caucasian engi-

neers supervised him. These same less senior, Caucasian

'* Exhibit A at 18a.

> Plaintiff's 12(n) 4 81.

'° Plaintiff's 12(n) § 80.

” Aboiye Affidavit § 18.

'® See Vaidya's Affidavit § 1; Alex Krinickas's Affidavit, § 11.

20

engineers were allowed to take the same test home.'” “Peer

reviews" were done on Plaintiff, but Plaintiff was not al-

lowed to participate in peer reviews of other employees. This

was also contrary to the policy and purpose of "peer re-

views".”” Evidence was presented, that Loren Radamaker, a

Caucasian employee, had a major project failure costing De-

fendant thousands of dollars and man hours, yet he was not

even disciplined, let alone terminated.” Plaintiff never had a

project failure,” was never disciplined, and was not consid-

ered a problem employee. No other engineer were subjected

to this treatment or terminated under Plaintiff's circum-

stances. Similarly situated younger Caucasian engineers were

kept, while Plaintiff was terminated.”

The above described employment practices can also

be described as disparate impact policies. 42 U.S.C. § 2000

(e(2)(K)(1)(A)(i). No other engineers of color, race or na-

tional origin were subjected to the aforementioned employ-

ment practices, that Plaintiff had been subjected to. Yet the

treatment obviously had a disparate impact upon Plaintiff.

The use of the "test" clearly had a disparate impact on people

of color-black, their national origin-Nigerian and race-

African.** Defendant can not articulate the practice is job re-

lated and a business necessity. The court should look to the

totality of the evidence raised and find the trial court erred in

its application of the law and find Plaintiff has set forth mate-

rial issues of fact sufficient to overcome summary judgment.

'? Plaintiff's 12(n) § 82.

*° Aboiye Affidavit § 24.

*! Aboiye Affidavit § 33.

** Aboiye Affidavit § 33.

> Krinickas Affidavit § 15.

** Aboiye Affidavit § 35.

21

When this Court looks at Plaintiff's facts, there can be

little doubt that his treatment was because of his race, and na-

tional origin in violation of Title VII. The totality of the evi-

dence shows that impermissible factors were used to

terminate Plaintiff. Even if Defendant discharged Plaintiff

for some legitimate reason, its underlying motivation was

tainted. Therefore, Defendant is liable for all of the pro-

scribed relief under the Statute.

CONCLUSION

The Court of Appeals for the Seventh Circuit has mis-

applied the McDonnell Douglas burden shifting method in

the instant case. Further, the Appellate Court improperly ar-

ticulated the mixed motive standard and erred in failing to ap-

ply the mixed-motive standard in this case. The Court should

grant certiorari to review and reverse the Seventh Circuits ap-

plication of the McDonnell Douglas and mixed motive evi-

dentiary framework. Also, the lack of uniformity among the

several Circuits in applying the McDonnell Douglas frame-

work needs to be resolved in order to provide a uniform stan-

dard for all the circuits.

Respectfully submitted,

Rene Hernandez, Esq.

Attorney at Law

613 South State Street

Belvidere, Illinois 61008

(815) 544-4219

la

(Any Footnotes trail end of each document)

NURAINI B. ABIOYE, Plaintiff-Appellant, v. SUND-

STRAND CORPORATION, Defendant-Appellee.

No. 98-1157

UNITED STATES COURT OF APPEALS FOR THE SEV-

ENTH CIRCUIT

November 6, 1998, Argued

December 28, 1998, Decided

COUNSEL: For NURAINI B. ABIOYE, Plaintiff - Appel-

lant: Rene Hernandez, Belvidere, IL USA.

For SUNDSTRAND CORPORATION, Defendant - Appel-

lee: Kearney W. Kilens, MCDERMOTT, WILL & EMERY,

Chicago, IL USA. Max G. Brittain, Jr., BRITTAIN, SLEDZ,

MORRIS & SLOVAK, Chicago, IL USA.

JUDGES: Before RIPPLE, KANNE and DIANE P. WOOD,

Circuit Judges.

OPINIONBY: RIPPLE

OPINION: RIPPLE, Circuit Judge. Nuraini Abioye filed this

action against Sundstrand Corporation ("Sundstrand" or "the

Corporation"). He alleged that his employment was termi-

nated because of his age, race and national origin in violation

of Title VII of the Civil Rights Act of 1964 and the Age Dis-

crimination in Employment Act ("ADEA"). After striking por-

tions of Mr. Abioye's 12(N) Statement and supporting

affidavits, the district court granted Sundstrand's summary

judgment motion. Mr. Abioye seeks review of these

2a

determinations. For the reasons set forth in the following

opinion, we affirm the judgment of the district court.

I

BACKGROUND

A. Facts

Mr. Abioye, who is a black man from Nigeria and who was

fifty-two at the time of his termination, began working as an

engineer for the Corporation's aerospace division in 1979. In

1984, he was promoted from the position of Project Engineer

II to the position of Senior Program Engineer I. In 1987, he

was promoted to Senior Program Engineer II. Froin June

1989 to January 1990, Mr. Abioye worked on special assign-

ment to the research department. When that assignment ex-

pired, he was transferred to the test department to work on

projects that needed additional staffing. From January 1990 to

September 1993, Mr. Abioye worked in the test equipment

group. During that time, Mr. Abioye was assigned to work on

the 777 backup project. This assignment was completed in

1992, and he was then assigned to perform day-to-day work

on a variety of projects.

During the 1992-93 period, Mr. Abioye was identified as a

possible candidate for layoff as part of a general reduction in

force due to a slowdown in the Corporation's business. At the

request of the layoff committee, one of his managers, Ray

Dawson, a black man over the age of forty, attempted to as-

sist Mr. Abioye in obtaining a transfer to the electric power

group. Ron Peterson, director of engineering at that time,

stated that he had no openings, and he questioned whether

Mr. Abioye had the skills necessary for the transfer.

In June 1993, two of Mr. Abioye's managers, Barry Mende-

loff and Doug Rinker, reviewed Mr. Abioye's performance.

They then told Mr. Abioye that he needed assignments

3a

outside of the test equipment group to continue performance

at the Senior Engineer II level and that they were working

with the human resources department to secure such opportu-

nities for him. They also informed him that, if he was not

transferred, he was in danger of being terminated. The review

further advised Mr. Abioye that his mix of technical knowl-

edge and skills did not meet the requirements for a Senior En-

gineer II in test equipment and that he needed to improve his

performance. Notably, Mr. Abioye did not dispute the assess-

ment of these managers. During a discussion of the review,

Rinker and Mendeloff told Mr. Abioye that they were trying

to place him in the electric power department because of his

work experience. Mr. Abioye agreed with this course of ac-

tion and expressed a desire to transfer to electric power.

Despite the facility-wide downsizing then in progress, efforts

continued to find a place for Mr. Abioye in electric power and

Mr. Abioye continued to express an interest in such a place-

ment. Finally, in September 1993, Mr. Abioye was transferred

into the motor generator engineering group, which George

Seffernick managed and which was a subgroup of the electric

power group. Seffernick viewed Mr. Abioye as technically

weak and in need of work to regain skills. Seffernick told Mr.

Abioye that he would need to work hard to keep up with

assignments.

Mr. Abioye's first assignments were on the AWACS program

and the F22 program. Seffernick received feedback from in-

ternal customers and from project managers who supervised

Mr. Abioye about concerns with his level of performance.

Seffernick had several discussions with Mr. Abioye about his

performance throughout 1994. According to Seffernick, Mr.

Abioye reacted negatively to this criticism when it was con-

veyed to him. In June 1994, Seffernick rated Mr. Abioye's

performance as a 2 ("met some commitments") on a scale of |

4a

to 5. Mr. Abioye, upon receiving the evaluation, stated that

Seffernick was not qualified to evaluate him.

During 1994, Seffernick also discussed with Virginia Dunkle

of Sundstrand's human resources department ways to help Mr.

Abioye bring his skills up to department expectations. In Janu-

ary 1994, Seffernick assigned Jay Vaidya to mentor Mr.

Abioye, and assigned Mr. Abioye to help Vaidya in a design

program. After completion of the program, Mr. Abioye pre-

pared a report for marketing. Seffernick found the report to

be undecipherable. He then asked a more senior engineer to

evaluate the report and met with that evaluator and Mr.

Abioye in an effort to improve the product. Mr. Abioye was

still unable to prepare an acceptable report. After another as-

signment resulted in unacceptable performance, Seffernick as-

signed Mr. Abioye to create a flow chart of the generator

process in an effort to improve his basic design skills.

In late 1994, after compiling performance evaluations and fac-

ing the need to find assignments for Mr. Abioye, Seffernick

recommended to the director of engineering that Mr. Abioye

be considered for layoff or transfer because his performance

was unsatisfactory and because his skills were not compatible

with those of the department. Consequently, in February

1995, Seffernick discussed Mr. Abioye's past performance

with a layoff review panel and with the director of engineer-

ing, George Sorensen. This panel, consisting of Seffernick,

Sorensen and several members of the human resources depart-

ment, including a vice-president, reviewed management's ex-

pectations and Mr. Abioye's work performance. It also

considered Mr. Abioye's past accomplishments and perform-

ance appraisals and examined alternatives for transfer or reas-

signment. After this evaluative process, Sorensen made the

final decision to terminate Mr. Abioye on the ground that he

lacked the technical capacity to perform the job.

B. Proceedings in the District Court

Sa

The district court struck parts of Mr. Abioye's statement as

well as the affidavits of Vaidya and Alex Krinickas, who was

Mr. Abioye's supervisor before Mr. Abioye joined Seffernick's

group. It then granted summary judgment to the Corporation.

The court held that Mr. Abioye had not demonstrated that he

was meeting the Corporation's legitimate expectations. There-

fore, he had not established a prima facie case under the

McDonnell Douglas methodology. The court relied on the

evaluation of Mr. Abioye's abilities by Seffernick and

Sorensen. The court noted that Mr. Abioye's past perform-

ance evaluations and evaluations by Vaidya and Krinickas

could not establish his competency at the time of his dis-

charge. Additionally, his own statements regarding his compe-

tency were entitled to no weight. Finally, the court also noted

briefly that there was no evidence of pretext in this case.

II

DISCUSSION

A.

Mr. Abioye submits that the district court should not have

stricken parts of the affidavits of himself Vaidya and Krin-

ickas. He alleges that the excluded evidence demonstrates that

the process utilized to evaluate his performance was different

from the process used to evaluate white employees; that

young, white engineers were brought in to replace him; that a

white engineer had failed on a major project without repri-

mand; and that engineers in other groups received reassign-

ment to their prior groups more easily than Mr. Abioye.

We review a district court's decision to strike portions of sum-

mary judgment affidavits for an abuse of discretion. See Whit-

ted v. General Motors Corp., 58 F.3d 1200, 1203 (7th Cir.

6a

1995). Although our review would have been aided by a more

plenary explanation by the district court, our own review of

the record allows us to conclude that there was no abuse of

discretion here. The court's decision to strike these statements

was not irrational or unreasonable. In particular, we note that

conjecture or speculation regarding the employer's motives

cannot be used to defeat a summary judgment motion; affida-

vits must be based on personal knowledge. See Karazanos v.

Navistar Int'l Transp. Corp., 948 F.2d 332, 337 (7th Cir.

1991); Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655,

659-60 (7th Cir. 1991) (en banc); Palucki v. Sears, Roebuck

& Co., 879 F.2d 1568, 1571-72 (7th Cir. 1989). Here, none

of the conclusory statements made by the affiants demon-

strated, with sufficient particularity, that they actually knew

whether younger, white employees were treated better than

Mr. Abioye; their statements were merely conjecture based on

rumor. In any event, even if the district court parsed the affi-

davits too aggressively, that error was harmless because, as

will be more fully discussed below, the stricken evidence was

not sufficient to show that Sundstrand's explanation for termi-

nating Mr. Abioye--his poor performance--was pretextual.

B.

Mr. Abioye next contends that the district court erred in hold-

ing that he did not establish a prima facie case under McDon-

nell Douglas. More specifically, he argues that he was meeting

the legitimate expectations of Sundstrand Corporation. He

cites the affidavits of Vaidya and Krinickas, who were his co-

workers at Sundstrand, to support his argument. Both of

these co-workers state in their affidavits that Mr. Abioye was

performing his job well. Because Vaidya had served as his

mentor and project supervisor, Mr. Abioye claims Vaidya's

evaluation is superior to that of Seffernick.

Although the district court granted summary judgment by

concluding that Mr. Abioye was not meeting the performance

Ta

expectations of his employer, we think that a more surefooted

ground for decision is the lack of any pretext in the Corpora-

strand's explanation for terminating Mr. Abioye's employment

was pretextual. When the defendant has proffered an explana-

met his prima facie case and instead decide to dismiss the

claim because there is no showing of pretext. See Equal Em-

ployment Opportunity Comm'n y. Our Lady of the Resurrec-

tion Med. Ctr., 77 F.3d 145, 149-50 (7th Cir. 1996).

In demonstrating pretext, a plaintiff must show more than that

the employer's decision was incorrect: the plaintiff must also

show the employer lied about its proffered explanation. See

Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995).

Even an employer's erroneous decisionmaking, exhibiting

poor business judgment, is not sufficient to establish pretext.

See Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1031-32

(7th Cir. 1998).

This court has applied these principles to a case with facts

similar to this one. See Bahl v. Royal Indem. Co., 115 F.3d

1283, 1291-92 (7th Cir. 1997). In Bahl, the employer alleged

that it terminated the plaintiff because of poor performance.

Similarly, in this case, the affidavits of Mr. Abioye's mentor,

Vaidya, and prior supervisor, Krinickas, do not establish an

8a

issue of triable fact that Sundstrand's explanation is pretextual.

Sundstrand management found Mr. Abioye's work to be un-

satisfactory; the fact that Vaidya thought that Mr. Abioye's

work was satisfactory cannot establish that Sundstrand man-

agement's subjective explanation was a fabrication. There is

absolutely no evidence to indicate that Seffernick or Sorensen

were lying about their estimation of Mr. Abioye's abilities. In-

deed, the evidence demonstrates that Sundstrand management

had a strong basis for believing Mr. Abioye was not perform-

ing well: Evaluations and comments by various supervisors in-

dicated that Mr. Abioye's work was inadequate, and

Seffernick himself had worked with Mr. Abioye to revise an

unsatisfactory report that Mr. Abioye had written. Further-

more, management attempted to accommodate Mr. Abioye's

lack of proficiency by transferring him and providing him with

a mentor. Finally, the entire matter of Mr. Abioye's perform-

ance had been analyzed before a panel drawn not only from

those who had worked with Mr. Abioye, but also from the hu-

man resources department. This evidence hardly supports the

inference that the termination was pretextual and that Sund-

strand management did not actually believe Mr. Abioye was a

poor performer. nl

C.

Mr. Abioye also contends that the district court should have

evaluated this summary judgment motion under a "mixed mo-

tives" framework rather than the McDonnell Douglas frame-

work. n2 Under the mixed motives approach to discrimination

cases, a plaintiff may rely on either direct or circumstantial

evidence to establish discriminatory intent. See Gleason v.

Mesirow Fin., Inc., 118 F.3d 1134, 1140 (7th Cir. 1997). The

defendant employer may then avoid a finding of liability by

proving that it would have made the same decision even if the

plaintiff was not of a certain race or above a certain age. See

id.

Sibiey ids Nb ance iE

adie Be aad

OTA San SSN a SAN cla OAT EE sc OTT BGI R IE

cays

PO Be eT aT Pee SRT

9a

Utilization of a mixed motives approach would not alter the

result in this case. At the outset, as in Gleason, we do not be-

lieve that the evidence of record will support a determination

that there is sufficient evidence, direct or circumstantial, of a

mixed motive in this case. In any event, as in Trahant v. Royal

Indemnity Co., 121 F.3d 1094 (7th Cir. 1997), it is clear that,

even if we were to assume some evidence of the existence of

an impermissible motive, the evidence of a "wholly legitimate

reason for the employment decision" is overwhelming. Id. at

1098. The Corporation would still be entitled to summary

judgment because there is no genuine issue regarding whether

it would have made the same employment decision anyway.

The evidence strongly establishes that Sundstrand manage-

ment believed that Mr. Abioye was not qualified to continue

working for Sundstrand. Sundstrand had attempted, persis-

tently, to assist Mr. Abioye in improving his performance and

in finding a position that suited his abilities. He was termi-

nated only after the process of evaluation and search for alter-

native placement failed to yield a suitable result. The

Corporation "has demonstrated convincingly," id., that it

would have terminated Mr. Abioye no matter what his age,

race, or national origin.

Conclusion

For the foregoing reasons, we affirm the judgment of the dis-

trict court.

AFFIRMED

Footnotes

ni Mr. Abioye contends that he was required to take an ex-

amination concerning his engineering abilities under condi-

tions different from those imposed on other employees.

10a

Although the treatment of this issue by the district court and

the parties is decidedly cryptic, we have examined thoroughly

the record and do not believe that this episode raises a genu-

ine issue of triable fact with respect to the issues of pretext,

or, indeed, of mixed motives. The record does not support, in

any manner, that an impermissible motive prompted the ad-

ministration of the test. Moreover, when Mr. Abioye com-

plained to management about the circumstances of

administration, the test was nullified by the Corporation. Un-

der these circumstances, the administration of the test would

not support a jury verdict of discrimination.

n2 Alternatively, Mr. Abioye argues that this court should not

apply the McDonnell Douglas framework to ADEA claims.

However, it is well settled that the McDonnell Douglas frame-

work applies to such claims. See, e.g., Fisher v. Wayne Dal-

ton Corp., 139 F.3d 1137, 1140 (7th Cir. 1998) (applying the

McDonnell Douglas framework to an ADEA claim). Mr.

Abioye offers no alternative mode of analysis and provides no

satisfactory argument why this court should abandon prior

precedent.

lla

NURAINI B. ABIOYE, Plaintiff, v. SUNDSTRAND COR-

PORATION, Defendant.

No. 96 C 50038

UNITED STATES DISTRICT COURT FOR THE NORTH-

ERN DISTRICT OF ILLINOIS, WESTERN DIVISION

December 23, 1997, Decided

December 23, 1997, Filed

COUNSEL: FOR PLAINTIFF: Rene Hernandez, Attorney at

Law, Belvidere, IL.

FOR DEFENDANT: Max G. Brittain, Jr., Kearney Wood

Kilens, Christine Anne Greener, Brittain, Sledz, Morris & Slo-

vak, Chicago, IL.

JUDGES: PHILIP G. REINHARD, JUDGE, UNITED

STATES DISTRICT COURT.

OPINIONBY: PHILIP G. REINHARD

OPINION: MEMORANDUM OPINION AND ORDER

INTRODUCTION

Plaintiff, Nuraini B. Abioye, filed a two-count complaint

against defendant, Sundstrand Corporation, alleging that he

was terminated from his employment in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 626

and because of his race and national origin in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Jurisdic-

tion is premised on 28 U.S.C. § 1331, and venue is proper as

the complained of conduct arose in this district and division.

12a

Defendant has moved for summary judgment as to plaintiff's

entire complaint.

FACTS nl

Plaintiff began working for defendant's aerospace division in

Rockford, Illinois, in 1979. In 1984, he was promoted from

project engineer II to senior program engineer I in the aero-

space generator group. In June 1987, he was promoted to

senior program engineer II in the research department. Plain-

tiff received periodic pay increases during the time he was a

senior program engineer II.

Plaintiff worked on special assignment to the research depart-

ment from June 1989 to January 1990. Upon the expiration of

that special assignment, plaintiff was transferred to the test

equipment department to work on projects that needed addi-

tional staffing. Plaintiff worked in the test equipment group

from January 1990 to September 1993. During this period,

plaintiff was assigned to work on the 777 backup project. He

completed that assignment at the end of 1992. For the remain-

der of his time in test equipment, plaintiff performed day-to-

day work with engineers on their projects.

During the 1992-93 time period, plaintiff, along with other

employees in the test equipment group, was identified as a

possible candidate for a general reduction in force being im-

plemented due to a slow down in business. Although plaintiff

was identified as such a candidate, he was not laid off at that

time. Ray Dawson, a black man over the age of forty, who

was one of plaintiff's managers, was asked by a layoff review

committee to investigate plaintiff's work and performance his-

tory, which he did. During this time, Dawson and Brian

Hayes, Dawson's counterpart in human resources, unsuccess-

fully assisted plaintiff in attempting to obtain a transfer to the

electric power group. Ron Peterson, the director of

l3a

engineering at that time, told Dawson there were no openings

and that he would have to displace someone if plaintiff trans-

ferred. Peterson questioned whether plaintiff's abilities war-

ranted such a displacement. Dawson continued to have

contact with plaintiff and to help him remain employed.

In June 1993, two of plaintiffs managers, Barry Mendeloff

and Doug Rinker, provided a performance review of plaintiff

to plaintiff. As part of the review, plaintiff was advised that he

needed assignments outside of the test equipment group to

continue to perform at a senior engineer II level and that

Rinker and Mendeloff were working with human resources to

obtain a transfer for plaintiff. The review also cautioned that

if a transfer did not develop, plaintiffs job was in jeopardy of

elimination. The review further noted that plaintiff's technical

knowledge base and skill mix did not meet the requirements

for a senior engineer II in test equipment and needed improve-

ment. Plaintiff did not dispute this review with anyone. Also

during a discussion of the review, Rinker and Mendeloff told

plaintiff they were trying to place him back in electric power

based on his work experience. Plaintiff agreed and expressed a

desire to transfer to electric power.

During 1993, Mendeloff and human resources continued their

efforts to transfer plaintiff to electric power. Plaintiff contin-

ued to express his interest in being transferred. The transfer

was difficult to arrange because of the facility-wide downsiz-

ing going on at that time.

In September 1993, plaintiff was transferred into the motor

generator engineering group, which was a sub-group of elec-

tric power. The manager of that group, George Seffernick,

was responsible for supervising all generator design engineers,

including plaintiff. In that capacity, Seffernick's practice was

to assign engineers to projects based on the needs of the pro-

ject, the engineer whose skills best match those needs and the

l4a

existing workload and availability of each engineer. Unless

performance problems developed, the generator design engi-

neer was expected to remain on the project until his assign-

ment was completed or he or she was no longer needed.

Seffernick first met plaintiff when he interviewed him in Sep-

tember 1993 to assess plaintiffs capabilities to work in Seffer-

nick's department. Seffernick knew at that time that plaintiff

was slated for lay off unless Seffernick could find a position

for him in his department. Seffernick considered plaintiff to be

technically weak and thought plaintiff would need to work at

regaining his generator design skills. Seffernick told plaintiff

that he could find work for him but that plaintiff would need

to work very hard to keep up with the assignment and gain

the experience necessary to perform at a senior engineer II

level.

Plaintiffs first assignment under Seffernick was to the

AWACS program. Between September 1993 and the first

quarter of 1994, plaintiff worked on various aspects of the

AWACS program and the F22 program. Seffernick received

feedback from internal customers and program managers

(who supervised plaintiff) that there were some concerns

about plaintiff's performance. According to Seffernick, plain-

tiff reacted negatively and defensively when Seffernick con-

veyed these concerns to him.

On several occasions in 1994, Seffernick discussed with plain-

tiff what Seffernick perceived to be weaknesses in plaintiff's

skill level and performance. In June 1994, Seffernick com-

pleted a performance evaluation of plaintiff which rated plain-

tiff a 2 ("met some commitments") on a scale of 1 to 5. Upon

receiving the evaluation, plaintiff told Seffernick that Seffer-

nick was not qualified to evaluate his work, that he did not

observe plaintiff's daily activities, that Seffernick did not know

how to design a generator and that based on plaintiff's sixteen

|

i Cn 1 ee eae

lSa

years with defendant the rating of 2 was uncalled for. Plaintiff

denies being defensive about his job skills. Several times dur-

ing 1994, Seffernick consulted with Virginia Dunkle of human

resources on how to help plaintiff bring his skill levels up to

department expectations. As a result, in January 1994, Seffer-

nick assigned Jay Vaidya, a former employee oi’ lefendant, to

mentor plaintiff. In February 1994, plaintiff was assigned to a

research and development program headed up by Vaidya and

known as the 4 pole/8 pole design program.

After completion of the 4 pole/8 pole project, a report was to

be prepared for marketing. Because Vaidya was absent, Sef-

fernick asked plaintiff if he could prepare the report. When

plaintiff responded he could, Seffernick gave him the

assignment.

Upon receiving the report, Seffernick found it undecipherable

and asked Hassan Mansir, a principal engineer (two levels

above a senior engineer II), to review and comment on the re-

port. After several meetings between Seffernick, plaintiff and

Mansir, which included Mansir's input regarding the report,

plaintiff was still unable to prepare a report that satisfied Sef-

fernick. Seffernick told plaintiff he found the final report unac-

ceptable and eventually gave up on plaintiff writing the report

in an acceptable manner.

During the fourth quarter of 1994, Seffernick assigned plain-

tiff to work under the supervision of Mansir on a variable fre-

quency generator program. Plaintiff made certain

recommendations regarding the project which Mansir told him

were unacceptable. Because problems developed with that as-

signment, Seffernick assigned plaintiff to create a flow chart

of the generator process in an effort to improve plaintiff's ba-

sic design skills.

l6a

In late 1994, while compiling performance evaluations and

faced with the need to find assignments for plaintiff, Seffer-

nick recommended to George Sorensen, director of engineer-

ing, that plaintiff be considered for transfer or layoff because

his performance was unsatisfactory and he did not have the

skills to work in the department. In February 1995, Seffernick

and Sorensen presented the issue of plaintiff's work status to a

layoff review panel organized at Seffernick's request. The re-

view panel consisted of Seffernick, Sorensen and several

members of human resources, including Butch Barr, a human

resources vice-president. Seffernick presented the panel with

various examples of plaintiff's performance on different as-

signments and what management's expectations were. The

panel also considered plaintiff's past accomplishments and per-

formance appraisals and examined alternatives for reassign-

ment or transfer.

Following the layoff review panel meeting, Sorensen made the

final decision to terminate plaintiff. The following day, Seffer-

nick informed plaintiff of the decision. The reason plaintiff

was terminated was because of his lack of technical capability

to perform the job.

Plaintiff refers to his various performance evaluations over the

years and the fact that he received annual raises every year he

worked as a senior er zineer II as evidence of his satisfactory

work performance. Plaintiff also submits the affidavits of

Vaidya, who worked with plaintiff on the 4 pole/8 pole pro-

ject, and Alex Krinickas, also a former employee of defendant,

who supervised plaintiff in the electrical research department

prior to plaintiffs working for Seffernick. n2 According to

Vaidya, plaintiff "performed his responsibilities extremely

well, in addition to being technically competent as an engi-

neer." Vaidya is also critical of various evaluations performed

by other of plaintiffs supervisors. Also, Vaidya states that

Seffernick ignored Vaidya's evaluation of plaintiff.

Ui eh et ahaa

ean Rae NON

Bers D in

adit as canetbiees Guta kaas

17a

Krinickas states in his affidavit that he worked with plaintiff

on two occasions, the second being on a project Krinickas su-

pervised in the electrical research department. During that

time, Krinickas observed plaintiff frequently. According to

Krinickas, plaintiff was competent and effective in doing his

job and required very minimal supervision.

CONTENTIONS

Defendant contends it is entitled to summary judgment be-

cause plaintiff has failed to raise an issue of material fact as to

two elements of the prima facie case under McDonnell-

Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93

S. Ct. 1817 (1973), that is, whether plaintiff performed the le-

gitimate expectations of his job and whether defendant treated

similarly situated persons not in the protected class more fa-

vorably. Plaintiff responds first that he has offered evidence of

disparate treatment in that he was treated differently because

he was subjected to a skills test in a manner different than all

other tested engineers, that he was discriminated against in the

peer review and performance review processes and that he

was discriminated against in the manner in which he was ter-

minated. He further argues that his is a mixed motive case be-

cause there were both legitimate and illegitimate motives

behind his termination, therefore, making McDonnell-Douglas

inapplicable. Lastly, he contends that even if McDonnell-

Douglas does apply, he has submitted enough evidence to

present a triable issue regarding both the prima facie case and

pretext.

DISCUSSION

Summary judgment is appropriate only where there is no

genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S.

18a

Ct. 2548 (1986); O'Connor v. DePaul Univ., 123 F.3d 665,

669 (7th Cir. 1997). In weighing a motion for summary judg-

ment, the court must take the facts in the light most favorable

to the party opposing the motion and draw all reasonable in-

ferences in that party's favor. Bahl v. Royal Indemnity Co.,

115 F.3d 1283, 1289 (7th cir. 1997); Condo v. Sysco Corp., |

F.3d 599, 601 (7th Cir. 1993), cert. denied, 510 U.S. 1110,

114 S. Ct. 1051, 127 L. Ed. 2d 373 (1994). The party oppos-

ing the motion must present evidence of a triable issue of ma-

teriai fact. See Vance v. Peters, 97 F.3d 987, 990 (7th Cir.

1996), cert. denied, 137 L. Ed. 2d 1030, 117 S. Ct. 1822

(1997).

The first issue the court must address is plaintiffs contention

that his case must be characterized as one of "mixed motives"

and that it is governed by Price Waterhouse v. Hopkins, 490

U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). This is,

at best, a curious contention as the concept of mixed motives

set forth in Price Waterhouse did not survive the Civil Rights

Act of 1991. Doll v. Brown, 75 F.3d 1200, 1203 (7th Cir.

1996) (Congress amended Title VII to convert mixed motive

cases to no-injury cases); Pilditch v. Board of Educ., 3 F.3d

1113, 1118 n.2 (7th Cir. 1993) (Civil Rights Act of 1991

overruled Price Waterhouse as to mixed motives). What is

even more curious about plaintiff's position is that application

of Price Waterhouse has a greater potential to limit plaintiff's

recovery as the presence of any acceptable motive is sufficient

for dismissal in favor of the employer. The court, therefore,

will treat this case as one under McDonnell-Douglas. n3

Under the ADEA and Title VII, a plaintiff may prove dis-

crimination by either presenting direct evidence of discrimina-

tion or applying the burden-shifting framework from

McDonnell Douglas. Rabinovitz v. Pena, 89 F.3d 482, 487

(7th Cir. 1996). As noted above, plaintiff has taken the

McDonnell Douglas path in this case. Under the McDonnell

19a

Douglas indirect, burden-shifting approach, to establish a

prima facie case of discriminatory discharge, a plaintiff must

show: (1) he is a member of a protected class; (2) he per-

formed his job satisfactorily; (3) he suffered an adverse em-

ployment decision; and (4) the employer treated

similarly-situated employees outside the plaintiffs classifica-

tion more favorably. Oates v. Discovery Zone, 116 F.3d 1161,

1171 (7th Cir. 1997).

In this case, while defendant contends plaintiff has failed to

establish the second and fourth elements of his prima facie

case, the court can dispose of the motion for summary judg-

ment based on the second element alone. If, as here, a plaintiff

is totally reliant on McDonnell Douglas, his case fails if he

cannot show that he was meeting his employer's legitimate ex-

pectations. Coco v. Elmwood Care, Inc., 1997 U.S. App.

LEXIS 30908, No. 97-1697, 1997 WL 695406, at *2 (7th

Cir. Nov. 10, 1997). If a plaintiff cannot show he was per-

forming his job up to his employer's legitimate expectations,

there is no need to consider whether the employer's proffered

reason for terminating him was in fact a pretext. Id. At *3.

McDonnell Douglas is for cases in which an employee is per-

forming in a satisfactory manner but loses his job anyway and

is replaced by someone belonging to a different group from

his own. Id.

In this case, plaintiff has not shown that he was performing his

job satisfactorily at the time he was discharged. Seffernick,

plaintiff's immediate supervisor, Sorensen, Seffernick's man-

ager, and the review panel all thought plaintiff should be let

go because his skills were not adequate to perform any

needed function in the workplace. While plaintiff points to

some past performance appraisals and to his and two fellow

employees’ opinions of his abilities, such evidence does not es-

tablisn his abilities to perform needed job functions at the time

of his discharge. First, past performance appraisals are not

20a

necessarily evidence of present performance. Additionally,

evaluations of performance based on other assignments do not

necessarily reflect the ability to perform current assignments.

Furthermore, the favorable appraisals relied on by plaintiff are

a bit of a wash as defendant has pointed to several appraisals

that indicate poor performance. n4 Second, plaintiffs own

opinion of his job abilities carries no weight in shgwing he

performed up to legitimate expectations. See Rabinovitz v.

Pena, 89 F.3d 482, 487 (7th Cir. 1996). Third, while the opin-

ions of fellow employees are relevant to show plaintiff's job

performance, the particular opinions offered here (Vaidya and

Krinickas) have nothing to do with the position plaintiff was

in at the time of his discharge. Cf. Rabinovitz, 89 F.3d at 487

(isolated comments by co-workers regarding a plaintiff's abili-

ties do not demonstrate that he is better than other employ-

ees). The fact that plaintiff was able to competently perform

certain jobs in the past does not bear on whether he was able

to perform his present duties. This would be different if plain-

tiff could show his present job duties are substantially similar

to those in the past, a showing he has not made here.

After seventeen years with defendant, and after surviving sev-

eral reductions in force, plaintiff found himself in a position

where there was simply an insufficient amount of work for

which he was qualified. Management made several efforts to

keep plaintiff employed by giving him various assignments

which he may arguably have not been qualified to perform.

The undisputed evidence shows this was done to keep plaintiff

employed rather than lay him off. Unfortunately, plaintiff was

unable to satisfactorily perform these assigned duties. The

anti-discrimination laws do not require defendant, or any em-

ployer, to keep an employee if his skills do not meet the em-

ployer's legitimate needs. Because plaintiff has not shown that

he was meeting the legitimate expectations of defendant at the

time of his discharge, the court grants summary judgment in

favor of defendant. While the court need not reach the

2la

question of pretext, there is simply no evidence of pretext in

this case. n5

CONCLUSION

For the foregoing reasons, the court grants defendant's motion

for summary judgment and dismisses this cause in its entirety.

Footnotes

nl The facts are taken from the parties’ respective statements

filed pursuant to Local General Rule 12. Defendant has filed

three motions to strike, one directed at plaintiff's original Rule

12N statement, one directed at certain affidavits submitted by

plaintiff and the third directed at plaintiffs amended Rule 12N,

which was filed after this court struck the original Rule 12N in

its entirety. The court has, in two prior orders, granted in part

and denied in part the various motions to strike. Therefore,

the court's rendition of facts will not consider any factual as-

sertions, or evidence filed in support thereof, that has previ-

ously been stricken.

n2 Defendant has moved to strike the affidavits of Vaidya and

Krinickas. The court will only refer to the factual assertions in

the affidavits that are relevant and are otherwise properly in-

cluded in an affidavit.

n3 Plaintiff has not asserted that there is any direct evidence

of discrimination.

n4 Plaintiffs answer to this quandary is to assert that his poor

appraisals were the product of discrimination. Such an answer

fails because it is unsupported by any record evidence. The

mere fact that such evaluations were completed by supervi-

sors outside the protected class (an assumption at best)

proves nothing, as some, if not all, of the good appraisals

22a

plaintiff points to were presumably completed by supervisors

outside the protected class. Plaintiff simply cannot have it

both ways.

n5 While plaintiff hints that a long-term conspiracy existed

whereby he was discriminatorily transferred to various posi-

tions, which eventually resulted in his being in a position he

was not qualified for, thereby expediting his termination, there

is absolutely no evidence of any such conspiracy by defendant.

Furthermore, such a theory defies common sense. It is not re-

motely believable that defendant would engage in such a pro-

tracted and complex scheme just to rid itself of plaintiff.

Rather, the evidence appears to demonstrate an opposite mo-

tive. Furthermore, there is no indication that during this sub-

terfuge, which would have lasted many years, that plaintiff

once ever complained about a transfer or any promotion he

received.

42 U.S.C. 2000e et seq.

Sec.107.Clarifying Prohibition Against impermissible Consid-

eration of Race, Color Religion, Sex, or National Origin in

Employment of Practices.

(a) In General-Section 703 of the Civil Rights Act of

1964 (42 U.S.C. 200e-2) ( as amended by sections 105 and

106) is further amended by adding at the end the following

new subsection:

"(m) Except as otherwise provided in this title, an un-

lawful employment practice is established when then com-

plaining party demonstrates that race, color, religion, sex, or

national origin was a motivating factor for any employment

practice, even though other factors also motivated the

practice."

(b) Enforcement Provisions-Section 706 (g) of such

Act (42 U.S.C. 200de-5(g)) is amended-

(1) by designating the first thorough third sentences

as paragraph (1);

(2) by designating the fourth sentence as paragraph

(2) (A) and indenting accordingly;and

(3) by adding at he end the following new

subparagraph:

(B) On a claim in which an individual proves a viola-

tion uder section 703(m) and a respondent demonstrates that

the respondent would have taken thesame action in the ab-

sence of the impermissible motivating factor, the court-

"(1) may grant declaratory relief, injunctive relief ( ex-

cept as provided in clause (ii)), and attorney's fees adn costs

demonstrated to be directly attributable only to the pursuit ofa

claim uder section 703(m); and

"(ii) shall not award damages or issue an order requir-

ing any admission, reinstatement, hiring, promotion, or pay-

ment, described in subparagraph (A)."