Pratt, Paul C. v. NiSource, Inc. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
AMENDED May 19, 2006
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 finding that Pratt
failed to establish a prima facie case that 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 assigned the responsibility of completing his annual performance reviews.
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 placed Pratt on a three-month probation that she extended two
times, each time for one month. Hechlinski’s 1999 review of Pratt’s performance
reflected his continuing problems with scheduling and time management. In 2000
she removed him from a project because of his 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 the
building and the space was reconfigured to hold an additional full-sized cubicle.
Diane Buche, the head of the project Pratt was assigned to, 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. Pratt filed a charge of racial
discrimination with the Equal Employment Opportunity Commission that was
dismissed as untimely. He then filed this complaint in the district court.
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
No. 05-2544 Page 3
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
least effective worker in his department—were pretextual.
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 either a change in title or a 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 the granting of 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 and, thus, cannot demonstrate that he was entitled
to a pay raise. Thus we will not disturb the district court’s finding that he did not
suffer an adverse employment action.
Pratt next challenges the granting of 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. Even if Pratt could establish that
he was similarly situated, however, he would still be unable to demonstrate that
NIPSCO’s stated reason for placing him in the smaller cubicle was a pretext.
NIPSCO said that, until some of the office’s other occupants left, it was too crowded
for another full-sized cubicle. Pratt fails to point to any evidence that would allow us
to conclude that NIPSCO’s stated reason was not genuine.
Pratt also disputes the granting of 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 establish that 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 present in 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
No. 05-2544 Page 4
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. Furthermore
he asserts that his projects were well-done and on time. In short, Pratt offered
nothing but assertions in his own self-interest to rebut NIPSCO’s evidence. The
district 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.