Moore v. State Farm Mutual Automobile Insurance Company
Filing
130
OPINION: IT IS ORDERED that Plaintiff Keirand R. Moore's Motion for Summary Judgment 94 is DENIED; Plaintiff's Jury Request 105 is DENIED at moot; Defendant State Farm Mutual Automobile Insurance Company's Cross-Motion for Summary Judgment on Events Leading up to and Culminating with Moore's 2012 Demotion and Corresponding Salary Reduction 110 is ALLOWED; Defendant's Cross-Motion for Summary Judgment on all Remaining Claims 114 is ALLOWED; and Defendant's Mo tion to Strike Reply 128 is DENIED as moot. The Court enters summary judgment in favor of Defendant State Farm Mutual Automobile Insurance Company and against Plaintiff Keirand Moore on all remaining claims. THIS CASE IS CLOSED. Entered by Magistrate Judge Tom Schanzle-Haskins on 1/28/19. (SKN, ilcd)
E-FILED
Monday, 28 January, 2019 11:36:55 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, PEORIA DIVISION
KEIRAND R. MOORE,
Plaintiff,
v.
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Defendant.
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No. 15-cv-1058
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Keirand R. Moore’s
Motion for Summary Judgment (d/e 94) (Motion 94) and Jury Request (d/e
105); and Defendant State Farm Mutual Automobile Insurance Company’s
(State Farm) Cross-Motion for Summary Judgment on Events Leading up
to and Culminating with Moore’s 2012 Demotion and Corresponding Salary
Reduction (d/e 110) (Motion 110), Cross-Motion for Summary Judgment on
all Remaining Claims (d/e 114) (Motion 114), and Motion to Strike Reply
(d/e 128) (Motion 128). The parties consented to proceed before a
Magistrate Judge. Consent to the Exercise of Jurisdiction by a United
States Magistrate Judge and Reference Order entered July 18, 2016 (d/e
39). For the reasons stated below, Motion 94 is DENIED, Motion 110 and
Page 1 of 60
Motion 114 are ALLOWED, and Moore’s Jury Request and Motion 128 are
DENIED as moot.
STATEMENT OF FACTS1
Moore identifies himself as a black man.2 He began working for State
Farm in 2001 as a Tech Support Specialist. From 2002 to 2010, Moore
received several promotions. He became a Systems Support Specialist
(SSS) in 2002, a Technical Analyst (TA) in 2005, a Test Analyst in 2007,
and Business Analyst (BA) in 2010. State Farm Response to Moore’s
Motion for Summary Judgment (d/e 108) (Response 108), Exhibit A,
Deposition of Keirand Moore (Moore Deposition), vol. 1, at 221, and Moore
Deposition Exhibits (d/e 109) (Moore Deposition Exhibit), Exhibit 67, State
Farm Work History.3
In 2010, Moore was a Business Analyst working as a Customer
Connection/Department Services (CCDS) consultant. Doug Seidner
supervised Moore. Moore states that in April 2011, Seidner falsely stated
1
State Farm rivals the federal government in the use of acronyms. The Court has compiled a glossary of
the meanings of terms that the Court gleaned from the documents. The glossary is attached as an
appendix to this Opinion. The Court generally avoids using acronyms in this Opinion except in
quotations.
2
State Farm Response to Moore’s Motion for Summary Judgment (d/e 108) (Response 108), Exhibit A,
Deposition of Keirand Moore (Moore Deposition), Vol. 1 at 53 (“I am a black man, but I can’t speak for
how the rest of the race identifies themselves.”). The Court will use his preferred terminology of black
rather than African-American.
3
Volumes 1 and 3 of Moore’s deposition are attached together as Exhibit A to Response 108. Volume 1
contains pages 1-145 of the deposition. Volume 2 contains pages 146-251 of the deposition, along with
Moore’s statements of corrections or changes.
Page 2 of 60
that Moore made remarks at a meeting that offended two individuals
named Michelle Monk and John Diekhoff, described as “host/business
partners.” Moore contacted these individuals. Monk and Diekhoff told
Moore that they were not offended and did not interpret Moore’s comments
as improper. See Motion 94, at 5 of 31- 6 of 31; Emails attached as Exhibit
94-3; Response to Cross-Motion II 9-25-18 (d/e 123) (Response 123), at 67, 21.4 Moore told Seidner he contacted Monk and Diekhoff. Moore states
that, “Seidner was livid and chastised me for contacting them. He was
upset that I had followed up because he had been lying.” (hereinafter
referred to as the Lie). Motion 94, at 5 of 31. According to Moore, Seidner
thereafter was out to get him for catching him in the Lie.
In approximately July 2011, Moore’s three-person team in the
Customer Connection/Department Services unit was dissolved. The other
two consultants were white. Moore claims that the other two consultants
were allowed to select their new assignments. Moore states that Seidner
required Moore to join the Client Production Team (CPT). The Client
Production Team performed technical work on mainframe computers.
Moore states that the work required proficiency in mainframe computer
4
The Court uses the CM/ECF numbering to cite to pages in Motion 94 and to identify location of
documents attached to Motion 94. Moore did not number the pages of Motion 94 and did not assign
numbers or letters to designate each exhibit.
Page 3 of 60
languages such as RHUMBA, COBOL, and FORTRAN. Moore was not
trained to use mainframe computers or these computer languages. Moore
states that Seidner forced Moore onto the Client Production Team in
retaliation for catching Seidner in the Lie. See Motion 94, at 3-5 of 31;
Reply 116, at 38-39; Response 123, at 6-7, 21.
Seidner was supposed to supervise Moore on the Client Production
Team, but an individual named Marsha Davis became Moore’s supervisor
instead. Motion 94, at 6 of 31. Moore was unable to perform his new job
on the Client Production Team. See Moore’s Reply in Support of Motion 94
(d/e 116) (Reply 116), at 19-20. On October 11, 2011, Davis gave Moore a
written Performance Expectation document that outlined what Davis
expected from Moore. Motion 94, First Set of Additional Exhibits (d/e 95)
(Exhibits 95), at Exhibit 95-4 page 1 of 1, Performance Expectations for
Keirand Moore. Moore was not able to meet these expectations. See
Motion 94, at 12 of 31 – 16 of 31. Moore claims Seidner, with Davis’ help,
made sure Moore would fail as retribution for catching Seidner in the Lie.
See Motion 94, at 5 of 31 – 6 of 31.
In 2011, Moore began experiencing medical problems. He was
ultimately diagnosed with Crohn’s disease. Stress exacerbated his
symptoms. See e.g., Exhibits 95, Exhibit 95-8, Letters from Moore’s
Page 4 of 60
healthcare providers. Moore’s condition required him to miss work
because of illness, medical appointments, and some hospitalizations. See
generally Motion 94, Exhibits 94-14 through 94-16, Collected Medical
Records from 2011; Motion 94, Second Set of Additional Exhibits (d/e 96)
(Exhibits 96), Exhibit 96-1, Collected Medical Records from 2011.
On February 20, 2012, Davis met with Moore. Omar West from the
Human Resources Department also attended the meeting. Davis
memorialized the events during the meeting in a memorandum dated
March 5, 2012. Moore Deposition Exhibits (d/e 109), Exhibit 17,
Memorandum from Davis to Moore dated March 5, 2012 (March 2012
Memorandum). During the meeting, Davis notified Moore that an audit
showed he sent 102 copies of internal State Farm emails to his personal
email account. Moore’s practice of sending copies of company emails to
his personal email violated company policy. Davis stated that the emails
contained customer information and other information deemed confidential
by State Farm. Davis and Moore signed the March 2012 Memorandum.
On April 23, 2012, Moore spoke with an individual named Nancy
Brooks at State Farm Human Relations. He wanted an investigation of his
2009-2010 annual review. State Farm’s annual review process assigned
employees a score of Level 1, Level 2, or Level 3 in the two areas:
Page 5 of 60
“Results” and “Competencies.” The annual review covered a 12-month
period called a “Performance Cycle.” A Level 3 rating meant the person
“consistently exceeded expectations.” A level 2 rating meant the person
“consistently met and occasionally exceeded expectations.” A level 1
rating meant the person “achieved some expectations but missed others.”
According to Moore, a rating of Level 3 was extremely rare, and rating of
Level 1 was considered a failure. See Moore Deposition, vol. 2, at 230-31;
Motion 94, at 7 of 31- 8 of 31. Moore received ratings of Level 1 in both
Results and Competencies in the 2009/2010 Performance Cycle. Moore
Deposition Exhibits, Exhibit 910, Employee Performance Results Tool for
Moore for 2009/2010, at 8. Moore had received ratings of Level 3 in
Results and Level 2 in Competencies during the 2008/2009 Performance
Cycle. Moore Deposition Exhibits, Exhibit 9, Employee Performance
Results Tool for Moore for 2008/2009, at 10. Moore provided Brooks with
documents and asked for a review. See Moore Deposition Exhibits, Exhibit
19, Email from Moore to West dated May 1, 2012 at 11:56 a.m. Neither
Seidner nor Davis supervised Moore during the 2008/2009 or 2009/2010
Performance Cycles.
On May 1, 2012, Moore sent a letter to the State Farm Human
Resources Department to the attention of Nancy Brooks memorializing his
Page 6 of 60
request for an investigation. Moore Deposition Exhibits, Exhibit 18, May 1,
2012 Letter. The letter stated:
Good morning Nancy,
The purpose of this correspondence is to document a formal
request by Business Analyst Keirand R. Moore to State Farm
Human Resources Department (Systems) to launch a formal
investigation into the events that took place during the
2009/2010 performance cycle.
During that performance cycle, I was a Test Analyst – Business
(henceforth to be referred to as TAB) in Systems Technology.
This investigation should reveal:
An explanation for why I received very positive documented
feedback regarding my performance as a TAB from the
Project Managers that I work for during that performance
cycle, but still received the lowest possible performance
rantings available.
An explanation for why I received very positive feedback
regarding my performances as a TAB from the Test
Manager, (Marla McElroy), whom I report to during that cycle
in the form of a hand written “Thank You” care after the EPR
was close rather than in the pages of the open EPR where
such feedback belongs.
An explanation as to why the Test Managers (Rich Kasper
and Marla McElroy) ignored all the evidences of the
remarkable results and competencies that I had achieved, as
well other documentation that I presented to them proving
that I had done a much better than average job, with no
documented issues of problems with competences or results
from Project Managers and /or team mates.
Why the Test Managers did not find work for me after the
performance cycle (this should be documented in Human
Resources files)? If I had been an under achiever, (which I
obviously wasn’t), with no work provided for me, there would
be no chance for me to redeem myself and improve my
performance.
Page 7 of 60
Why was I not given the equal opportunity to reap the
benefits of back to back performance cycles where I gave
documented remarkable service as a successful,
professional testing lead? (at the end of the performance
cycle prior to that one, I received a 3/2 performance rating).
What Project Manager would document in that cycle’s
feedback that I should “share my knowledge with others” if
my performance during that cycle was a low as a “level 1”?
Surely she wouldn’t be suggesting that we should have more
“level 1” performers following my lead.
These issues are merely the beginning. Please contact me as
soon as the investigation begins. I have so much more to add,
including the devastating fallout from this that has affected me
in a number of negative ways including the damage to my
career ever since.
Thanks so much,
Keirand R. Moore
May 1, 2012 Letter. Moore stated that he received the lowest possible
performance rating during the 2009-2010 annual review. Moore wanted an
investigation because he believed he performed exceptionally well.
Omar West wrote an email to Moore in response to the May 1, 2012
Letter. West wrote, in part:
Keirand, I am in receipt of your memo dated May 1, 2012 which
was left with the assistant at the front desk in Human
Resources. The memo requests a formal investigation
regarding events that took place during the 2009/2010
performance cycle. It should be noted that leadership has had
several conversations with you regarding your work
performance in 2009/2010 to present, in addition to
conversations regarding the fact that you are currently not
Page 8 of 60
meeting your job expectations. I will review your memo for new
information regarding these matters and proceed appropriately.
Moore Exhibits, Exhibit 19, Email from West to Moore dated May 1, 2012,
at 11:05 a.m. Moore replied to West’s email. Moore reiterated his
complaint about his 2009/2010 evaluation. Moore stated:
Mister West,
In spite of the number of conversations that may have taken
place regarding that performance cycle, I have yet to receive a
satisfactory answer for why the feedback that I received from
the PM’s whose projects that I worked on during the cycle
provided evidence that I was an above average performer, but
the ratings that I received from the people that I reported to
were unfavorable. There is an obvious contradiction.
“Leadership” did not provide any negative documentation
regarding my performance, but I have provided plenty to
support the really good work that I did. The Test Manager that I
reported to at the end of the cycle wrote positive things about
my contributions to the team. I want to provide that evidence to
someone who will scrutinize it with no pre-conceived notions
about me, review it fairly and see what happens.
You said to communicate with you or my “HR rep”. Please tell
me who my HR Rep is. I prefer to work with that person. I am
willing to talk to the appropriate HR manager or executive as
well. I welcome that opportunity. The feedback document form
2010 also includes favorable comments from Public Affairs
regarding my leadership and contributions regarding volunteer
work that I did during the same cycle. So I was giving excellent
service across departments. But it’s being ignored. Can’t let
that happen.
I left the memo for Nancy because I spoke to her on April 23rd
and left several copies of documentation for HR to review. I
hadn’t heard anything from HR since. Based on your
comments below [in the May 1 11:05 am email quoted above], I
Page 9 of 60
would have to assume that you haven’t seen them, or perhaps
you have. What happened in that cycle had led to the
predicament that I am in now and I intend to prove that. But I
am requesting to work with some from HR who I hope has a
fresh set of eyes and who will be impartial. I am confident that
if I can work with such a person, I will be vindicated. But if the
HR Rep already has his mind made up, I won’t receive a fair
and impartial chance to present my evidence. Can’t let that
happen.
Again, I reiterate, I am requesting to speak to any HR Rep, HR
Manager or HR executive or all of the above who is willing to
hear me out. All I ask is that they come into this situation with
an open mind.
Keirand
Moore Deposition Exhibits, Exhibit 19, Email from Moore to West dated
May 1, 2012 at 11:56 a.m. The record before the Court does not indicate
whether West responded. Moore did not mention race discrimination in
either the May 1, 2012 letter to Brooks or the May 1, 2012 email to West.
In June 2012, Davis told Moore his duties were being transferred to a
different unit in State Farm. She offered him two options: undergo
retraining for a new assignment as a Business Analyst; or voluntarily
accept a job change which would involve a transfer and demotion. Moore’s
annual salary was then $55,365. If he opted for retraining and he failed to
meet her expectations in the new assignment, he could be subject to
termination. Moore Deposition Exhibits, Exhibit 20, Email from Marsha
Davis to Keirand Moore dated June 8, 2012 at 7:23 a.m. Moore believed
Page 10 of 60
he would be fired if he opted to retrain for a different position in the Client
Production Team. See Moore Deposition, at 237-38.
On June 14, 2012, Moore wrote a memorandum accepting the option
of the transfer and demotion. Moore reiterated that he lacked the
qualifications to work on the Client Production Team. He stated, “It is due
to that sad fact that I have no other viable alternative than to request a job
change.” Moore Deposition Exhibits, Memorandum to Whom it May
Concern dated June 14, 2012.
In July 2012, Moore was demoted from a Business Analyst to a
Systems Support Specialist. His annual salary was reduced from $55,365
to $51,294. Moore was transferred to the Windows Server Hardware team
(Server Hardware) within the Systems Technology unit of State Farm.
Moore Deposition Exhibits, Exhibit 22, Memorandum from Marsha Davis to
Keirand Moore dated July 20, 2012.
Moore states that when he arrived at his new position, he discovered
a gap in the services provided by the Server Hardware team. He stated
that no one was performing the duties of a Service Level Liaison. The
parties do not fully explain the duties of a Service Level Liaison. The
evidence indicates that the Service Level Liaison interacted with different
departments or units of State Farm that used the services of the Server
Page 11 of 60
Hardware team. The Service Level Liaison work included establishing
agreements called Operational Level Agreements (OLAs) between Server
Hardware and the other units of State Farm that used its services.
According to Moore, the Service Level Liaison duties for Server Hardware
were assigned to Mike Willis, a Business Analyst on the Server Hardware
team. Moore states that Willis was overwhelmed with other duties and was
not performing Service Level Liaison functions. See Reply 116, at 22-23;
Response 123, at 32-33; Motion 114, Exhibit C, Affidavit of Jenna
Hillesheim (Hillesheim Affidavit), Exhibit A, Hillesheim Email String, Email
from Moore to Thompson, Danner, and Reeser dated April 23, 2013 at 2:07
p.m. Moore was familiar with the Service Level Liaison duties because of
his training and experience as a Business Analyst. He offered to perform
these functions for Server Hardware.
State Farm executive Dan Danner had authority over the Server
Hardware unit. Danner states that he authorized Moore to perform these
Business Analyst level Service Level Liaison functions as long has those
functions took less than 50 percent of Moore’s work time. Motion 114,
Exhibit D, Affidavit of Dan Danner (Danner Affidavit) ¶ 3. Moore denies
that he agreed with anyone to the 50 percent limit. He denies that he had
any type of formal agreement governing his performance of Service Level
Page 12 of 60
Liaison functions. See Moore Deposition, vol. 1, at 98-99; Response 123,
at 33-36. Moore stated in his deposition that his immediate supervisor
Jenna Hillesheim and Server Hardware Service Manager Matt Spurgin
authorized him to perform these duties. See Moore Deposition, vol. 1, at
90-92. Hillesheim reported to Danner at this time. Hillesheim Affidavit ¶ 2.
Moore began performing Service Level Liaison functions shortly after
his arrival at Server Hardware. In January 2013, Moore initiated a
conversation with Willis about a raise and a promotion. Moore sent Willis
an email dated January 25, 2013 regarding that conversation. Moore
wrote:
Sir,
On the subject of compensation that we broached yesterday.
All we want to deal in is the truth. If my impact to the team,
since I joined, brought nothing more than any other SSS could
bring, I have nothing further to say. But if the impact of my
presence has been much larger than that and I bring real value
using my skillset I acquired as a successful Business
Analyst…big difference. At the very least, they should pay me
the very top of the pay scale for the best of the SSS (retroactive
from my arrival), until they acknowledge that I am performing as
a level 3 Business Analyst based on their own criteria, then
provide me with fair compensation for that. Have a great
weekend, sir.
Keirand Moore
Page 13 of 60
Moore Deposition, Exhibit 29, Email String, Email from Moore to Willis
dated January 25, 2013 at 10:43 a.m. (ellipsis in the original). Willis
responded:
Thank you for the write up. I will take this forward.
Thank you again.
Id., Email from Willis to Moore dated January 25, 2013, at 10:44 a.m.
Moore was not promoted and did not receive a raise. Rather, Danner
states that he stopped Moore from performing those functions because
those duties were taking up more than 50 percent of Moore’s work time.
Danner Affidavit, ¶ 4. Danner states that he approved transferring the
Service Level Liaison duties to an Analyst already on the Server Hardware
team with the understanding that staffing levels would not be increased.
Danner Affidavit, ¶ 6. Moore stated in his deposition, “[I]t was [Danner]
who didn’t allow me to continue the server hardware work because if he
did, he would have to increase my salary and promote me . . . .” Moore
Deposition, vol. 1 at 89; accord Moore Deposition, at 102-03.
Moore again denies that any 50 percent limit existed. See Response
123, at 33-37, 42-43. In July 2013, however, Moore acknowledged the
existence of the 50 percent limit. During a meeting with Danner in July
Page 14 of 60
2013 after Moore stopped performing Service Level Liaison duties, Moore
stated that he learned from Danner that,
I can be as “Remarkable” as I want to be, as long as it is
for less than fifty percent of my time because the company
doesn’t want to ‘compensate’ me for outstanding work. That’s
what it sounded like you were telling me. I don’t want to
misconstrue, sir, is that correct?
Moore Deposition Exhibits, Exhibit 31, at 2 of 49, Email from Moore to
Danner dated July 16, 2013 at 2:24 p.m.
On April 17, 2013, Moore’s direct supervisor Jenna Hillesheim and
Service Manager Matt Spurgin met with Moore.5 Spurgin had responsibility
for Moore’s work assignments. Hillesheim and Spurgin told Moore that a
Technical Analyst in the Server Hardware unit named Rob Probst was
being assigned to perform the Service Level Liaison duties that Moore had
been performing. They asked Moore to assist Probst in the transition of
duties from Moore to Probst. Motion 114, Exhibit C, Affidavit of Jenna
Hillesheim (Hillesheim Affidavit), ¶ 4. Hillesheim states that Moore became
upset. Hillesheim states that Moore said he was not being recognized for
the work he was doing and also that Probst was not qualified to perform the
Service Level Liaison duties. Hillesheim Affidavit, ¶ 6. Moore states that
5
Hillesheim reported to Danner from November 2012 to March 2014. Beginning in March 2014,
Hillesheim reported to Kristen Peters. Hillesheim Affidavit, ¶ 2
Page 15 of 60
he was more frustrated than upset. He states that Hillesheim was
unprofessional because she was “throwing her weight around without the
benefit of knowledge” of the situation. Response 123, at 47.
On the evening of April 17, 2013, at 10:57 p.m., Hillesheim sent
Moore an email to memorialize the discussion. Hillesheim indicated in the
email that Moore’s specific duties were classified as an Organizational
Support Specialist (OSS) in Server Hardware. The Organizational Support
Specialist appears to have been a type of duty performed by System
Support Specialists. Hillesheim wrote:
Many OSSs are asked to participate in the onboarding or
transition process of team members. Sometimes they are able
to give more details than just documentation location,
depending on the amount of knowledge they have acquired on
the team. So, please also provide any knowledge on existing
relationships and information about your team’s internal
customers and upcoming facilitation meetings. Allow the new
team member, Rob, to ask questions as needed of you, and
encourage other team members to answer his questions as
needed also. This information will also become useful for
onboarding additional team members if that becomes needed.
....
[I] expect a single source document with the information
outlined below in the form of a transition plan for Rob. We need
for you to create one document that includes all of the
necessary information, and for it to be effective. This single
source document transition plan needs to be available to Rob
by 4/25/13. In the transition plan, include the following:
The knowledge (by topic area) Rob needs to come up to
speed on, what is happening within team, and where the
team is headed with the work.
Page 16 of 60
The documentation that Rob needs to review or read and
come up to speed, including links to appropriate team
information.
o Include any documents in draft mode that have not yet
been stored for the team’s access so Rob gets an idea of
where the team is going next.
o Include links to team SharePoint information and tools
that are specific to the team.
o Provide the distribution lists he will need to use as a team
member in communications.
Experiences that need shared. Experiences are valuable as
well in the learning and in the transition. You should
document time you plan to spend with Rob and time that he
could spend with other team members gaining learning on
specific topics pertinent to the team’s work.
By the end of day Tuesday, 4/23/13. Please provide a draft of
the transition plan to Matt and me so that we can review it and
provide feedback on it. This will give time for us to get it ready
to go for Rob on 4/25/13.
The competencies you will need to use in this transition are
equally important as anything else that the team is doing. I’m
expecting that your competencies in teamwork, inclusiveness,
work ethic, communication and relationship building will be a
large portion of the success of the transition of new team
members to Matt’s team. Thanks in advance for your help with
the transition and your cooperation!! Please let both Matt and
me know if you have questions.
Hillesheim Affidavit, Exhibit A, Hillesheim Email String, Email from
Hillesheim to Moore dated April 17, 2013, at 10:57 p.m. (emphasis in the
original).
Page 17 of 60
On April 22, 2013, Moore responded with an email. Hillesheim
Affidavit, Exhibit A, Hillesheim Email String, Email from Moore to Hillesheim
dated April 22, 2013 at 1:48 p.m. Moore copied Spurgin, Server Hardware
Business Analyst Michael Willis, and himself on the email. Moore wrote:
What I am attempting to do as I sit down to write this is explain
the best way that I can that I can’t deliver what you are
demanding of me. This is much bigger than just me. I am
including Michael Willis in this correspondence because he has
some experience and knowledge about Service Management
and can confirm what I am about to say to be the absolute truth.
Please understand that Service Management is a “discipline”.
It is complex. It takes a lot of preparation to qualify for a
process assignment if you are to do it properly. One has to
learn how to be a successful Change Agent, Change
Coordinator, or a Problem Coordinator, Problem Analyst,
Incident Coordinator, etc. Service Level Liaison is no different.
Without the proper background training, successful transition
won't be possible. You couldn’t transition a good Problem
Coordinator's work to a person who is starting from ground zero
and leave them alone after a just few days or even a few
weeks. They will fail unless they have an available resource to
go to for help. They have to be allowed time to go to the
classes and LEARN this discipline. They need to sit with an
experienced person to apply what they have learned into live
action, hands on experience. The same is true for SLL work.
Due to circumstances beyond my control, I won't be able to be
that resource for Rob. You want my hands off of it in a couple
weeks. At that point, he will be left alone with 21 service
receivers, most, if not all with no valid agreements in place
going forward and looking to Rob to make the next move. By
then, my hands will be tied by the very people who made the
decision to take me out of the equation. Those 21 services are
expecting to see an updated OLA in the near future. No one
can get him ready to write a draft of that document by May 1st.
Page 18 of 60
Please understand that I am not defying you here, nor am I
attempting to stay involved once I help Server Hardware over
the hump on Thursday. You need a clear understanding of
what Rob has waiting for him. I make it look easy, but it is far
from it. When I said "Rob isn't qualified", it isn't that I am being
disrespectful, arrogant, or flippant. I know it seems that way
because of the way I communicated it due to my tremendous
disappointment at that time. But what it really represented is
my respect for the Service Management discipline. The very
way that it's constructed will demand that you do too. You don't
have to respect my high level of skill in this discipline, but you
would be well advised to respect the discipline itself. It is
designed to prepare a person for success in any process
assignment. If it isn't done that way it's designed to, chances
for failure increase dramatically. That won't be my fault.
Nobody can change that process. I know that I can't. No one
can quicken or shorten the process except for maybe ITIL. I
don't think anyone else can. I don't think ITIL is planning to. I
know that you don't think it's my place to say it, but it became
my place to level with you when you gave me the directive to
get him ready for or to even put him on the road to success
without the right ITIL approved preparation.
Bottom line: I'm sorry, but I can't make Rob a SLL in two weeks,
or even two months. No one can. All I can tell you is that he
will have to do it the same way that the rest of the SLLs had to
do it to be successful. That takes time and a lot of it. Time that
I don't have. My involvement has to stop very soon and that's
out of my control. He will need someone to sit with him, to
mentor him. It's not the kind of work that you can just pass
along without lots of preparation before a person can inherit the
responsibility for a service the size of this one. I know what it
takes to successfully run a service. I have done it before
(Infrastructure Web - please contact Aaron Bonner for a
reference). It is not easy at all. I can't say enough that he
needs time to learn and to prepare to take over. If you don't
replace me with someone of equal (or better) knowledge,
experience, training you can't reasonably expect to get even
close to the same quality of results for some time to come.
According to that function, they can't spare a resource to help
Page 19 of 60
him. That weight cannot fall on my shoulders. Like I said, it's a
lot bigger than me. The SM function won't hesitate to let you
know that qualifications to become a pro in this field are not to
be taken lightly. Most people must put in the work.
Please understand that what you are demanding cannot be
treated as if I was passing this work to on someone who has
some Idea of what to do. The work is too advanced at this
stage to do that and it’s still in its early stages. That's why the
method that you are demanding below will not be effective. I
can’t tell you how much time I plan to spend with Rob. He has
to tell Matt how much time he has to spend with me. He has a
full time job already. Now he has two. He and Matt have to
make workload decisions. I can't give you any static timelines
on when I can successfully transfer any knowledge. I can't
predict how quickly he will pick it up inside a classroom setting,
let alone just hanging with me unofficially. Please don't put me
in that position. As the Service Design effort that I began picks
up speed, the work will demand more and more of his time.
The twenty-five percent of his time that he is being allotted with
be eaten up with the classes that he will need to take alone.
The SLL literally runs the service. That is the person who is in
charge. He/She reports to a SLM, but the SLL runs the service
day to day, week to week, month to month, year to year. They
report on the monthly metrics. They put out fires. They are
accountable to the receivers. They write and maintain the OLA.
They must explain why OLA goals are not met (If they are not
at the end of the month) and what he will encourage his service
to do to mitigate it during the following month. They negotiate
and renegotiate with service providers and receivers regularly.
They make deals and covenants with other areas. Depending
on the service, some of this monthly reporting go all the way up
to AVPs. The SLLs are the face of the service. They are the
“go to” person. This work is demanding when it's done
properly. Services that are smaller than Server Hardware often
have two full time SLLs.
That what it takes to do it right and the right way is the only
way, especially if I have to be involved. If I were to agree to
your terms below, I am signing my own execution. You are
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giving me a huge responsibility, but no time to carry it out the
right way. He will fail if we do it your way and I don't want to
suffer the consequences when that happens. That's why I’m
giving you my professional response right now.
Please contact the Service Management function and ask them
what it takes to be a successful Service Level Liaison. Matt,
Michael and Rob will have to sit down and work out a time
schedule for the course work that Rob will have to complete.
I'm obligated to inform you that there are no shortcuts. It's the
same thing that I and every SLL had to do. It's part of the
Service Management structure. I am told that a lot of the SM
training courses offered by SFLMS are full, but you may want to
check periodically anyway. Perhaps he can get on the waiting
lists. Until then, there isn't much that I can do for you. I know
that some of the SLLs that I contacted regarding Service
Design are novices. But they have a stronger support system
in place than Rob will have and that what he needs. I had just
begun to build that team, but I had no time to look into whose
training for their process assignments were up to date. He
needs that team behind him all of the way, ready to support and
assist him, same as other SLLs have (especially beginners).
The SM function doesn't have anyone to help you right now and
they can't tell you when they will. That's how much SM is in
demand. You might consider being guided by that. People in
the know are aware that they need the things that SM offers
and they're all trying to go to the head of the list ASAP. There
are not enough resources available to help everyone who
wants It and knows that they need it. The line is around the
comer. That's how important SM is to Systems. That's one of
the reasons that I stepped up. That's what SF says they want.
Also, you can't ever transition a relationship. Relationships
have to be built by the participants. I can introduce you to
someone. But how they perceive you and the direction that the
relationship takes from there cannot be on me. I am powerless
to affect it once an intro is made. They will know that they can’t
work with Rob the way that they can work with me until he is
ready. It will take a while. I can't take responsibility for that.
Page 21 of 60
We will fail. Here is an example of what I mean: << Message:
RE: I/A: Server hardware Service Design & Test Center >>.
They are looking forward to the partnership because they think
they will be working with me. Rob’s inexperience, through no
fault of his own, will put this on hold until he can get some
formalized training and a mentor. I can't begin to project how
long that will take. Too many factors that are out of my control
are being placed on me as responsibilities. I have no idea if
any headway can be made by May 1st. I doubt it. But In those
few days, whatever I can give him won't be enough. For his
sake, you might want to rethink how you want to handle this.
The actions of person(s) who are holding me back are far
reaching.
They are also affecting Server Hardware, who was
making real progress, in a negative way.
Server Hardware was a service that the function
recognized as one that the didn’t have to worry about. It
was a service that was moving pretty far up the road to
being fulling functioning and closer that some others to
being up and running. Now it's just another service on the
long waiting list for Service Design. (please contact
Michael Willis for verification. He was the person who
told me that SH was performing above function
expectation, unless I misunderstood him).
This service was gaining notice from other services too. It
was being held up as an example for other services going
forward due to the results of my efforts according to
Angela Moon (SLL for Test Center).
Janet Canfield (SLL for Test Center) was mentioning this
service a one to watch during a meeting of services that
are all seeking Service Design. That's too much
responsibility to transition to Rob who hasn't even had his
first SLL course yet. I hope you can see why I can't help
you with that.
Page 22 of 60
If you plan to seek assistance on what you can do to keep all of
the work that I have started from slipping into oblivion, you must
go to a professional (a level 3 or 4 Analyst). I will already be
out of time by the time you reach one and get a response. If
they refer you to ask any SLLs who know me, you may not
want to use my name. If they think that I am accessible to you,
they will likely send you right back to me for guidance on how to
run your service, the very thing that you don't want.
I know that the person(s) who are holding me back may not
want to acknowledge me as anything more than just a “support"
person. But my professionalism and expertise is undeniable
when you look at where Server Hardware is now compared to
Where they were before me. The magnitude of Thursday's
meeting speaks for itself as does all of the work that I have
done for them. It takes a whole different skillset to get the ISCs
as excited as they are to bond with us the way they want to.
That's take part BASE training, part communications expertise
and part instincts. The success of the ISC relationships
depends on successful Service Design.
I ask that you please share this information with Rob. He
deserves all of the facts. I ask that you please let him decide if
he wants to take this on, because there's going to come a time
that he will likely have to choose between what he's doing now
and this work. If it keeps moving forward, he won't be able to
do both. He's going to need to take on a lot of course work and
mentorship along with his fulltime job now. Maybe you'll want
to let him know what he is in for. That's the only transition thing
that I can do for him that's going to be fair to both him and me.
Telling everyone the truth is critical. It's impossible to transition
seven months of highly professionally executed work to him
now and then leave him alone with it. I owe it to him to give him
all of the facts. The way you are wanting this to be done means
that nobody is going to win. Not Rob. Not me. Not Server
Hardware. Not the four data centers. Nobody. But I know that
it's not my concern.
Page 23 of 60
I know that you are angry with me for telling you this. I'm not
just saying all of this as retaliation for my work being hijacked.
It isn't my motive. Before you discipline me, please forward this
e-mail to anyone who needs to see it, especially the people
who made this decision. They should know the consequences
for their actions, if they don't already (if they even care). You
need a more effective contingency plan. No matter if the
decision about my involvement changes or not is irrelevant to
this situation. You can choose to just let that work dissipate or
to keep it going as you see fit. You had a professional, highly
respected SM resource at your disposal. That put you ahead of
a lot of other services. But for whatever reason, you don’t want
him. I advise you to take particular notice of how everyone
around you is prioritizing SM work. There is a reason for it.
I have to log off now. Super heavy stress aggravates my
symptoms. I don't feel well right now. I am going to take PSL.
I have to let all of this go for right now. If I log back on before
EOD, I will let you know. If not, I will update EAS in the
morning.
I had to get this off of my chest It is weighing heavily. I will still
have enough time to put things together for Thursday. Now
that I have unburdened myself, I can focus full force in the
morning, have something to show Matt and Michael on
Wednesday afternoon, and be ready to present on Thursday
morning.
Id. (emphasis in the original).
Spurgin responded to Moore’s email:
Neither Jenna nor I have had the expectation that you would
train Rob to be a fully functioning and experienced SLL in a few
weeks. That is not realistic. However, I do feel that It is
realistic over these next few weeks for you to do the best you
can to mentor and educate Rob on the SLL work that you have
done specifically for our team. I fully understand that Rob
needs to take the training, that he needs time to learn the
specifics of the SLL assignment, he needs to build partnerships
Page 24 of 60
with service providers and receivers, etc. Jenna and I have
both told you that we understand that Rob is new and will need
time to learn, and Michael and I have discussed that as well.
After we get through the session with the ISCS on the 25th you
should have plenty of time to work with Rob. I expect Rob to
reach out to you, and for you to reach out to Rob...any
transition/mentorship is a joint responsibility and effort. Let me
know if you have any further questions about what is expected
of you with regards to the transition work, thanks.
Hillesheim Email String, Email from Spurgin to Moore dated April 23, 2013
at 10:39 a.m. (ellipsis in original).
Less than four hours later, Moore wrote an email to Assistant Vice
President Terry C. Thompson, Danner, and Kevin Reeser. Reeser was
Spurgin’s supervisor. Moore Deposition, vol. 2, at 239-40. Moore wrote:
Gentlemen,
I am being used, abused and taken advantage of. I'm afraid
that I can no longer stand for that. This all started because in
spite of everything that has happened to me over the last four
years here at State Farm I was still willing to do my very best
for the company as an employee. I have noted all of the things
that I have read about your demand for “remarkable” service. I
absorbed what is documented in your obligations of leadership
and a lot of the other statements about the company and
employee relations that are published on the intranet.
I was unjustly demoted from a Business Analyst to a Systems
Support Specialist because I was forced to work under
conditions where the people in charge showed no respect for
the company's documented “Obligations Of Leadership”. That
and other related issues are currently the focus of a Human
Resources investigation that has been going on for nearly a
year now.
Page 25 of 60
While working as a “SSS” I discovered a gap with the
operations of the Server Hardware team. The team is top
heavy with brilliant technical minds, but very thin on business
representation. I discovered that they need both. So I
volunteered to show them how much better they could operate
under my business leadership.
They had a problem with having enough testing time for
ESR. I volunteered to help them out. I filed a risk on the
project. They didn't think it would matter. It fixed their
problem.
I stepped up like State Farm says that they want their
employees to do. “Go above and beyond" they say. I
volunteered to help them. They didn't object. They agreed.
Next I saw that they were operating as a “service" without
having valid agreements with any service receivers. They
didn't even have the proper level of service/availability listed
for their own service. They didn't even seem to know what
that was. I brought it to their attention. I stepped up. I
started to successfully re-build their service. I have initiated
Service Design and started reaching out to their receivers
about building an effective Service Management
relationship/partnership and getting favorable responses in
return.
They had a rather unproductive relationship with the data
centers leaders. I volunteered to help them build a
partnership with the ISCs. I devised a whole new way of
approaching the data centers. I devised a way for them to
gather information effectively without the argumentative
obstacle that they said always got in their way in the past.
So far, my way is producing results well beyond their
expectations because they had none. Now that they have
benefitted from my professionalism, they have high
expectations.
The data center leaders are here in Bloomington. Because
of my efforts, we are meeting with them on Thursday. Never
Page 26 of 60
before have the ISCs been so excited about the partnership
that I was leading the construction of. I set up a meeting for
one hour. But they are going to spend two hours with Server
Hardware while they are here to further build the business
partnership that I changed from adversarial to productive.
Now that I have done all of this for them, they are taking the
work away from me. The say that someone made the decision
that “support people should only do support work". I know of
several SSS who are working on development opportunities. I
haven't heard a single one of them talking about being taken off
of their dev opps so that they could do support work. If that
was happening, word would have been circulating throughout
that community. Not even so much as a whisper.
Let's be straight. They did nothing develop me on Server
Hardware. I am the one who was developing them. They had
no clue what they were missing. Now that I began showing
them the way, they want squash me, and demand that I mentor
an analyst to do 3rd level analyst work, from an SSS seat, for
SSS pay! And it’s not even close to the top SSS dollars! I have
been doing this work for them for about eight months. I hope
they will not insult us by saying that it wasn't quality work. Can
anyone please explain to me how they can possibly have an
“expectation” that a SSS mentors an analyst on how to be an
effective, high performing analyst? Please help me to
understand what sense that makes in the meantime, as a
reward, I get knocked out of an opportunity that I created so
that someone else can get it who may not even want it.
Seriously? Can we please discuss this? I’m confused on the
ethics. The work was in very capable hands and moving
forward beautifully. But they are taking it from those capable
hands to give it to a person who hasn't even begun to train for
the role. On top of that, they demand that I help them to hold
myself down in the SSS role and keep me from receiving the
recognition and compensation that I worked for, earned, and
deserve. That is incredible! Can you help me discover what
the purpose of this move was if not to keep me down? Feels
like a ceiling to me. Please help me to unravel the motivation
Page 27 of 60
behind this. If you three can't help me, will you please put me
in touch with someone who can?
Let's also be clear that it wasn't a stretch assignment either.
There was no agreement between Matt, Jenna, and the
manager of a Service Level Liaison that I would be mentored
for a specified period of time, for an identified percentage of my
time and the mentor's time. None of the elements of a stretch
assignment or a dev opp were ever discussed to that extent.
That could be because I'm doing all of the developing and all of
the mentoring and now they are demanding more of my time
and talents before they discard me.
They allowed me to perform independently as a lead analyst
(making my own moves and decisions) and reaped the benefits
from it for about eight months, just under full time each week,
without paying me close to the industry standard for that work.
I believe that's against the rules. I deserve much better
treatment than that. And they knew the whole time what I was
doing. No secrets. They knew how much time I was spending
on it also. Wow! The level of disrespect for me is stunningly
disappointing. They are showing absolutely no regard to how
this is effecting (sic) me at all. They are showing no regard for
how this could affect State Farm either.
When I read mister Spurgin's note below: this is what I heard:
We demand to continue to use you and the benefit of your
experience, knowledge and expertise without giving you the
proper compensation or the recognition that you deserve for all
you have done for us up until this point. At first we were going
to give you until the the 25th to transition the work, then May 1st,
now we're going to change it to "over the next few weeks". We
acknowledge the value of the work you did, how well you did it
and we want to continue to capitalize on your knowledge and
experience. But we don't want you to have the opportunity.
When we’re done with you, oh well...
I am not being taken off of the work for reasons of
incompetence. I'm not being removed because I hit a plateau
and can't take it further. I can take it all the way a they know it.
Page 28 of 60
That is why they are insisting that I mentor their replacement. I
am being taken off of this work so that I can be held down to
only do support work that I'm not trained for. If that's not why,
what is the reason? Wouldn’t you like to know too? They
should tell us.
What do you hear when you read it? I still have yet to hear the
business reason for why I shouldn’t be allowed to continue to
do my best work for State Farm. Why am I being kept down?
Maybe they don’t believe that I deserve an answer. Do you?
From the Obligations of Leadership statement:
"Have right people in the right place at the right time with
the right skills"…"Personally know your high-potential and
high performing employees and ensure they are provided
significant growth opportunities...
Does that "Obligation not include me? If not, why not? So far,
it doesn't seem to.
The work that I was doing was leading Server Hardware to:
"Achieve our Availability & Performance Goals for our critical
business workflows". And "Increase the capacity and agility of
our workforce"… 2013 Planning Message… which also states:
“Systems is fully committed and accountable to deliver on these
promises".
I was moving them toward that. ls denying me a fair chance to
advance using my skills worth not delivering on the Planning
message when you have the chance, If I can help you do that?
I guess it is.
I don't want to be used anymore. They would not be on the
path they are on now, if it wasn't for me. I want to be respected
for the talented professional that I am. I don't want to be held
back and into obscurity after all that I have done for Server
Hardware. And this is the thanks I get? I want to know why?
Don't you? Please see what I wrote to Jenna and Matt below
about their transition demands. Maybe you can understand
Page 29 of 60
what I am telling them about Service Management and what it
takes to do what I do. Maybe you can help me explain it better.
They are still demanding. Please help me. I am in a very
undesirable and impossible position.
This treatment of me is horrendous. Please join me in doing
the right thing. State Farm guarantees better for those of us
who are trying to give our best all day, every day. Please help
to make good on that guarantee.
I await your responses.
Thanks,
Keirand
Hillesheim Affidavit, Exhibit A, Hillesheim Email String, Email from Moore to
Thompson, Danner, and Reeser dated April 23, 2013 at 2:07 p.m. Moore
did not prepare the memorandum that Hillesheim instructed him to prepare.
Moore did not provide any assistance or advice to Probst in taking over the
Service Level Liaison functions. Moore did not receive any formal
discipline for not complying with Hillesheim and Spurgin’s instructions.
In July 2013, Moore complained to Danner about what he called
“workplace bullying.” Moore complained about the treatment since his
2009/2010 negative evaluation through his experiences with Seidner and
Davis in 2011-12 leading to his demotion, and his experiences with
Hillesheim and Spurgin in 2012-13. Moore found Danner’s response
unsatisfactory. Moore then contacted Senior Vice President of Systems
Page 30 of 60
Mark Oakley, Senior Systems Executive Duane Farrington, Systems
Executive Diane Fleming, and Systems Executive Sandy Arnold. See
Moore Deposition Exhibits, Exhibit 31, Email from Moore to Danner dated
July 16, 2013 at 2:24 p.m.; and Exhibit 32, Email from Moore to Mark
Oakley, Duane Farrington, Dianne Fleming, and Sandy Arnold dated July
21, 2013, at 9:28 p.m. See also Moore Deposition, vol. 2, at 240-42.
On July 22, 2013, Moore met with Human Resources representatives
Omar West, Diann Savage, and Jessica Fentress.6 Moore was again
unhappy with the response of West, Savage, and Fentress to his
complaints. On July 25, 2013, Moore again wrote to Systems Executives
Oakley, Farrington, Fleming and Arnold. Moore Deposition Exhibit 32,
Email from Moore to Oakley, Farrington, Fleming and Arnold dated July 25,
2013, at 2:57 p.m. See also Moore Deposition, vol. 2, at 240-42. Moore
again restated his experiences since 2009-2010. On July 31, 2013 Moore
wrote to Human Resources executives Annette Martinez, Mary Schmidt,
Stacie Rood, and Mary Crego. Moore Deposition Exhibits, Exhibit 34,
Email from Moore to Martinez, Schmidt, Rood, and Crego dated July 31,
2013 at 4:05 p.m. Moore complained about the response of Human
6
See Motion 94, at 22 of 31 for spelling of Savage’s first name.
Page 31 of 60
Resources personnel West, Savage, and Fentress at the July 22, 2013
meeting regarding Moore’s complaints.
On August 1, 2013, Oakley responded to Moore. Oakley stated that
Human Resources and the Employee Relations Investigations Team was
looking into his complaints. The Moore Response Doc #65 (d/e 75),
attached Email String 75-19 at page 6 of 7, Email from Oakley to Moore
dated August 1, 2013 at 7:18 a.m.
On August 8, 2013, Moore wrote an email to Assistant Vice President
Terry Thompson complaining about his treatment. Moore Deposition
Exhibits, Exhibit 35, Email from Moore to Thompson dated August 8, 20913
at 3:26 p.m. Moore again repeated his complaints of bullying during his
time on the Server Hardware team.
On August 9, 2013, Hillesheim provided written comments on
Moore’s work performance as part of his performance review process. At
the time, Moore’s Performance Cycle was from December 1, 2012 through
November 30, 2013. Hillesheim’s August 9, 2013 comments were part of
the mid-cycle review. The review process included a mid-cycle review and
final review. Hillesheim commended Moore for performing Service Level
Liaison work. Hillesheim also criticized Moore as follows:
Feedback suggests that Keirand is “remarkable” except for
when he is asked to do something he does not want to do
Page 32 of 60
within his duties, and his behaviors are then not as remarkable.
Examples of this provided in feedback included:
-taking care of paper for each ESR cycle that his assigned team
currently does. He has told the team he was too busy to do a
piece of work that according to a key team member, would
have taken “an hour every 4 months to complete”.
Another feedback comment stated “I think he needs to focus
more on his current work and not get too hung up on what he
used to do or will do in the future. A different team member
commented they would not want Keirand on the team due to
too much drama. They stated Keirand is “capable of doing
support work, but is focused on the higher level work, and it’s
not what we need.”
Another person commented, yes, remarkable, “but too extreme
and focused on doing the right thing, but at the wrong time and
in the wrong way.”
My observations of Keirand tell that he needs improvement in
his teamwork, adaptability, and self-awareness regarding
interactions with co-workers when he is to do something that he
does not want to do. Part of his growth in this performance
cycle will be his ability to change and be consistent with the
remarkable behaviors, regardless of what change-related
company, team or role information or direction is being given. If
Keirand addresses his brand with some self-awareness on his
reactions toward others on change-related information, this will
help him improve competencies and meet expectations. I
believe Keirand has the ability and drive to meet expectations in
the competency areas during the second half of the
performance cycle.
Page 33 of 60
Hillesheim Affidavit, Exhibit B, Employee Performance Results Tool
covering December 1, 2012 through November 30, 2013 (Moore 2013
Review Tool).7
On or about August 20, 2013 State Farm Employee Relations
Investigator Denise Richards-Rival interviewed Moore by telephone about
his complaints of workplace bullying. See Moore Deposition, at 97; Moore
Deposition Exhibits, Exhibit 36, Invitation for Phone Interview; and Exhibit
37, Email from Moore to Richards-Rival dated August 21, 2013 at 3:41 p.m.
Moore states that Richards-Rival’s “mind was already made up” about him
before they met. Moore states that their conversation was fruitless.
Response 123, at 59.
On October 15, 2013, Moore wrote another email to Assistant Vice
President Thompson complaining about workplace bullying. Thompson
thanked him for his email and told Moore, “I’m working with HR on getting a
meeting scheduled to address your allegations. Expect an invite in the
near future.” Moore Deposition Documents, Exhibit 39, Email between
Thompson and Moore dated October 15, 2013.
7
The Employee Performance Response Tool erroneously lists the performance cycle as December 1,
2011 to November 30, 2012.
Page 34 of 60
On November 13, 2013, Moore met with Thompson and Heather
Honeycutt, Director—Human Resources Client Services. Honeycutt sent
Moore an email after the meeting. Deposition Documents, Exhibit 40,
Email from Honeycutt to Moore dated November 13, 2013 at 11:33 a.m.
Honeycutt wrote:
Thank you for taking the time to meet with Terry Thompson and
me today. In our conversation we discussed the disposition of
the reviews conducted based on the concerns you brought
forward. As discussed, your concerns were thoroughly looked
into separately by HR Line Services, Employee Relations and
Auditing. Each resulted in the same finding – namely, that your
concerns of policy violations were not substantiated.
As discussed, it is State Farm’s expectation that you focus on
your work and follow the direction provided by leadership.
While you may utilize the Open Door Policy regarding any new
issues you may have concerns with, it is not within the spirit of
the policy to continue to raise the same issues that have
repeatedly, and thoroughly, been looked into and found to be
unsubstantiated. Therefore, it is State Farm’s expectation that
you cease raising these same issues.
Id.
On November 15, 2013, Moore began preparing a charge of
discrimination to file with the Illinois Department of Human Rights (IDHR)
alleging racial discrimination. Moore Deposition, vol. 1, at 123-24, vol. 2, at
200-01. Moore did not allege racial discrimination or racial harassment in
any of Moore’s internal complaints prior to this time. Response 123, at 69-
Page 35 of 60
70; Moore Deposition, vol. 1, at 128-29. Moore did not file a charge of
discrimination at this time.
On December 12, 2013, Hillesheim gave Moore his end of the year
review. Hillesheim gave Moore a Level 2 rating for Results and a Level 1
rating for Competencies. Moore 2013 Review Tool. Hillesheim
commented on Moore’s performance:
Throughout this performance cycle, Keirand has demonstrated
some competencies as noted above. However, other
competencies have not consistently met expectations
throughout this cycle. For example, regarding adaptability,
Keirand has not demonstrated acceptance or support of
changes regarding his assignments. This occurred when
Server Hardware work was being changed, and I needed him to
focus on the most critical work and shift some support priorities.
He was also resistant to start work he was given in the Testing
Area; this created disruption and delays in work being
completed, started, or transitioned. Feedback indicates a lack
of ongoing and consistent interaction with Keirand that
negatively impacts his communication with the team members
and his management. For example, I have asked Keirand
many times to check in with his team leads each morning when
he is working from home so that we know whether or not he is
able to do work for a given day. After repeated requests, he
complied. Keirand has also not balanced his workload after
repeated instructions and directions from his supervisor on how
to do so.
Keirand does not easily accept and support changes that he
doesn't agree with or does not like, even when those changes
are directed by management. When this happens, Keirand
loses focus on teamwork and business goals. Feedback
indicates Keirand’s negativity negatively impacts team moral.
For example, feedback received noted Keirand interrupts work
of other team members to focus his complaints about his work
Page 36 of 60
and management. This negatively impacts his professional
relationships and does not create mutual trust with his team
members or leadership.
Keirand needs to focus on self-improvement, following direction
and adapting to change for the next performance cycle. My
experiences with Keirand are that he does not receive
information or performance feedback in a non-defensive
manner, whether it is performance feedback or information to
help him gain another perspective. He can benefit from
analyzing his own behavior and performance to learn from his
mistakes and successes this year.
Moore 2013 Review Tool.
On December 24, 2013, Moore filed a charge of discrimination with
the IDHR and the Equal Employment Opportunity Commission (EEOC).
Moore Deposition Exhibits (d/e 109), Exhibit 43, Charge of Discrimination
dated December 24, 2013 (December 2013 Charge). Moore alleged
several acts of race discrimination and retaliation. Moore alleged that he
was “Denied promotion continuing through 11/13/13” because of race
discrimination and retaliation. In the December 2013 Charge Moore
alleged he “initiated a formal complaint of civil rights violation with
Respondent on 04/2012.” He alleged he was denied a promotion because
of his race and in retaliation for asserting the civil rights complaint. Moore
alleged he was subject to “Harassment continuing through 11/13/13 related
to race, Black.” He alleged “I was subject to harassment continuing
through 11/13/13. Specifically, I have been forced to have to mentor the
Page 37 of 60
new Business Analyst.” Moore also alleged that the harassment was in
retaliation for “my opposition to racial discrimination within such period of
time as to raise the inference of retaliatory motivation.” December 2013
Charge. Moore selected the November 13, 2013 date based on
Honeycutt’s email sent that day. Moore Deposition, vol. 1, at 115.
Moore testified in his deposition that the April 2012 formal complaint
of civil rights violation referenced in the December 2013 Charge was, in
fact, the May 1, 2012 Letter set forth in full above on pages 7 and 8, in
which he asked for an investigation of his 2009/2010 annual review. Moore
Deposition, vol. 1 at 161. Moore did not mention race discrimination in the
May 1, 2012 Letter or the follow-up email he sent the same day to Omar
West of State Farm Human Resource Department, also quoted above. In
fact, prior to the filing of the December 2013 Charge, Moore admits he did
not complain to anyone at State Farm about racial discrimination in his
employment. See e.g., Response 123, at 43, 69, 81; Moore Deposition,
vol. 1, at 128-29.
After the December 2013 Performance Cycle review, Hillesheim
required Moore to complete a work-tracker document to document the
duties he performed during the workday. Due to Moore’s Chron’s disease
and related medical conditions, he often worked half days or split his
Page 38 of 60
workday into working at the office half days and working from home half
days. Hillesheim states that Moore resisted preparing a work-tracker
document. She states that Moore prepared a work-tracker but did not
follow the template Hillesheim provided. Hillesheim Affidavit, ¶ 15.
According to Hillesheim, Moore “decided to make a mockery of it and
record details in bold red font of your restroom breaks, going to the ice
machine, and removing your coat.” Hillesheim Affidavit, Exhibit C, March
10, 2014 Memorandum. Moore states that he was opposed to preparing a
work-tracker document but complied with Hillesheim’s demand. See
Response 123, at 68-69.
On February 26, 2014, Service Manager Wendy Satchwell sent an
email to Moore. Satchwell directed Moore to perform some filing and other
clerical duties. On February 27, 2014, at about 8:00 a.m., Satchwell came
to Moore’s desk. At that time, Moore worked half days at the office due to
his Chron’s Disease. By that time, Hillesheim did not allow Moore to work
from home. See Moore Deposition, vol. 2, at 168-69, 212-13. Satchwell
said she asked how things were going. Moore stated that she put her
hands on him in an offensive way and committed a battery on him. See
Response 123, at 71-72. Moore then sent Satchwell an email response to
her email of the day before. Moore stated that he was not trained to
Page 39 of 60
perform the assigned duties and he did not have time because he had
other duties and he was only working half days. Thirty minutes later,
Server Hardware team member Robin Nerby sent Moore an email
informing him that he had been trained to perform the tasks outlined by
Satchwell. Nerby offered to show Moore again how to perform these
duties. Moore responded that he did not remember any of the training.
Hillesheim viewed Moore’s response as defensive and negative in tone.
Hillesheim Affidavit, ¶ 18 and Exhibit C, Email String.
On the same day, February 27, 2014, Hillesheim met with Moore.
Satchwell and Human Resources representative Jessica Fentress attended
the meeting. Hillesheim states that she told Moore she received feedback
that his communications with co-workers had been defensive and negative
in tone. Hillesheim told Moore that she wanted him to communicate with
co-workers collaboratively and professionally. Moore disputes that he ever
was unprofessional with his co-workers. See Hillesheim Affidavit ¶ 19;
Response 123, at 72-74.
Later the same day, February 27, 2014, Moore spoke privately to coworker Cathy Cooper. Hillesheim states that Cooper reported to Hillesheim
that Moore confronted and intimidated Cooper and asked if she had a
problem with him. Moore disputes this characterization of this event. He
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states that he and Cooper were friends, but Cooper had betrayed that
friendship. He talked to her to confirm that betrayal and to end any
friendship between them. Hillesheim Affidavit ¶ 20; Response 123, at 7476.
On March 10, 2014, Hillesheim prepared a memorandum (March 10,
2014 Memorandum) addressed to Moore with a subject of “Inappropriate
Behavior.” The March 10, 2014 Memorandum summarized Hillesheim’s
concerns with Moore’s behavior since the end of his December 2013
Performance Cycle. Hillesheim summarized his failure to comply with her
request to keep a work tracker document properly and his behavior on
February 27, 2014. The March 10, 2014 Memorandum ended with this
statement:
Keirand, you are ultimately responsible for your behaviors. If
immediate and sustained improvement is not seen, further
disciplinary action up to and including a recommendation of
termination may occur. By signing below, you acknowledge that
you have had an opportunity to review and have received a
copy of this memo. (emphasis added)
Hillesheim Affidavit, ¶ 21 and Exhibit D, March 10, 2014 Memorandum.
The March 10, 2014 Memorandum had signature blocks at the end for
Moore and Hillesheim to sign.
On March 15, 2014, Kristen Peters became Hillesheim’s supervisor.
Motion 114, Exhibit A, Affidavit of Kristen Peters (Peters Affidavit), ¶ 2.
Page 41 of 60
On March 21, 2014, Hillesheim and Human Resources representative
Omar West met with Moore to discuss the matters set forth in the March
10, 2014 Memorandum. Hillesheim states that she started with a
discussion of the work tracker document. She states that Moore became
defensive. He refused to answer questions. Hillesheim states that she
believed raising additional issues would have been unproductive. She did
not present Moore with the March 10, 2014 Memorandum. Instead, she
and West recommended that Moore be put on paid administrative leave
pending further review of his behavior. Hillesheim Affidavit, ¶¶ 22-23.
Moore disputes Hillesheim’s characterization of the meeting. See
Response 123, at 77-80. Moore states that he told Hillesheim and West
that he was going to file more charges of discrimination. Moore Deposition,
vol. 1, at 126-28; Motion 94, at 17 of 31. Peters approved the request and
authorized Hillesheim to put Moore on paid leave on March 21, 2014.
Peters Affidavit, ¶ 3; Moore Deposition, at 18.
Shortly thereafter, Hillesheim recommended terminating Moore’s
employment based on his behavior at the March 21, 2014 meeting.
Hillesheim Affidavit, ¶ 24. Peters agreed with the recommendation. Peters
Affidavit, ¶ 4. On April 4, 2014, Moore was notified that his employment at
State Farm would end. He could retire effective May 1, 2014, or he could
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elect not to retire and be terminated effective April 7, 2014. Moore did not
want to retire, and so, State Farm terminated his employment. Moore
Deposition, at 19-22.
Moore filed additional charges of discrimination with the IDHR and
EEOC which were signed by Moore on April 4, 2014 and April 29, 2014.
Moore Deposition Exhibits, Exhibit 45, Charge of Discrimination dated April
4, 2014 (April 4 Charge); and Exhibit 46, Charge of Discrimination dated
April 29, 2014 (April 29 Charge). The Charge signed by Moore on April 4,
2014 shows it was received by the IDHR on April 7, 2014. Moore alleged
retaliation and harassment in the April 4 Charge. He alleged that he was
subjected to harassment on February 26, 2014. He alleged, “one of my
managers aggressively approached me, grabbed my shoulders and
pushed me towards the work area.” He alleged the manager did this in
retaliation for his filing the December 2013 Charge. Moore also alleged
that he was put on administrative leave in retaliation for filing the December
2013 Charge. April 4 Charge.
Moore alleged in the April 29 Charge that he was fired because of his
race and in retaliation for filing the December 2013 Charge. Moore alleged
he filed two prior charges of discrimination, but he had only filed the
December 2013 Charge before he was notified that he was terminated.
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April 29 Charge. Moore filed the April 4 Charge on the same day he was
notified of the termination of his employment.
On January 16, 2015, the EEOC issued Moore three right to sue
letters, one for each charge. Complaint (d/e 1), attached Right to Sue
Letter; State Farm’s Motion to Dismiss (d/e 19), Exhibits 1, 2, and 3, Right
to Sue Letters.
PROCEDURAL HISTORY OF MOORE’S CLAIMS
Moore brought this action on February 3, 2015. Moore alleged
numerous claims for violations of his rights under Title VII of the Civil Rights
Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.; the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.; and the Family and
Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; and state-law claims.
See Complaint (d/e 1). The Court entered partial summary judgment on
some of Moore’s claims, and Moore agreed to dismiss his FMLA claim.
Order entered December 22, 2016 (d/e 49); Order entered May 22, 2017
(d/e 57); Order entered June 13, 2017 (d/e 61); Order entered February 23,
2018 (d/e 79); and Agreed Order to Dismiss FMLA Claim entered May 9,
2018 (d/e 103). The following claims for race discrimination and retaliation
in violation of Title VII remain:
Page 44 of 60
Moore claims he was discriminated against when (1) he
was denied a promotion continuing through November 13,
2013; (2) he was forced to monitor Business Analyst
Probst through the same time period; and (3) he was
discharged on or about April 7, 2014. Moore also claims
that forcing him to mentor Probst was harassment in
violation of Title VII.
Moore claims he was retaliated against in violation of Title
VII by (1) being denied a promotion continuing through
November 13, 2013; (2) being forced to mentor Business
Analyst Probst through the same time period; (3) being
placed on administrative leave on March 21, 2014; and
(4) by being discharged.
Order entered February 23, 2018 (d/e 79), at 11 (incorporating by reference
the list of remaining claims set forth in State Farm’s Motion for Summary
Judgment on Moore’s Breach of Contract Claim (d/e 67), at 4).
ANALYSIS
Both parties seek summary judgment. At summary judgment, the
moving party must present evidence that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323Page 45 of 60
24 (1986). The Court must consider the evidence presented in the light
most favorable to non-moving party. Any doubt as to the existence of a
genuine issue for trial must be resolved against the movant.
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once the movant has met
his or its burden, the non-moving party must present evidence to show that
issues of fact remain with respect to an issue essential to his or its case,
and on which he or it will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. at 322; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
In this case, State Farm is entitled to partial summary judgment on
Motion 110 for Moore’s claims related to events culminating in the 2012
demotion. State Farm is also entitled to summary judgment on Motion 114
on all of Moore’s remaining claims.
State Farm’s Cross-Motion for
Summary Judgment on Events Leading Up to and
Culminating in the July 2012 Demotion (Motion 110)
State Farm seeks summary judgment on Moore’s claims for events
that led up to his July 2012 demotion because Moore failed to file a timely
charge of discrimination with respect to those events. The Court agrees.
Title VII requires a plaintiff to exhaust his administrative remedies before
filing a civil action under Title VII. A plaintiff must first file a charge of
Page 46 of 60
discrimination within 300 days of the discrete act of discrimination or
retaliation with the EEOC or parallel state agency, in this case the IDHR.
42 U.S.C. § 2000e-5(e)(1). Moore filed his first Charge on December 24,
2013. He first spoke to a representative of the EEOC or IDHR on
November 15, 2013. Even if the Court counted the statute from the
November 15, 2013, Moore may only bring claims that arose within 300
days of that date, or after January 17, 2013. Moore was demoted in July
2012. The charge was not filed within the required time limit.
Furthermore, the December 24, 2013 Charge does not mention the
2012 demotion. The charge alleged violation from a failure to promote
through November 13, 2013, and harassment through November 13, 2013.
The failure to promote consisted of the decisions by Danner, Hillesheim,
and Spurgin not to promote Moore in the Server Hardware unit to a Service
Level Liaison position in 2013. Moore Deposition, vol. 1, at 112. The
harassment consisted of requiring Moore to mentor Probst as the Service
Level Liaison on the Server Hardware team. See December 24, 2013
Charge. In fact, none of Moore’s three Charges of Discrimination
mentioned the July 2012 demotion. See December 24, 2013 Charge; April
4, 2014 Charge; and April 29, 2014 Charge. The scope of a plaintiff’s Title
VII claim is limited to the wrongful acts alleged in the charge. “[T]he charge
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must, at a minimum, describe the same conduct and implicate the same
individuals.” Huri v. Office of the Chief Judge of the Circuit Court of Cook
County, 804 F.3d 826, 831-32 (7th Cir. 2015). The acts by Seidner and
Davis in 2011 and 2012 are not described or implicated in any of Moore’s
three charges. Therefore, any Title VII claim regarding the July 2012
demotion is barred for failure to file a timely charge of discrimination.
Moore’s arguments to the contrary are not persuasive. State Farm is
entitled to partial summary judgment on Motion 110.
State Farm’s Cross-Motion for Summary Judgment
on All Remaining Claims (Motion 114)
Discrimination
To overcome summary judgment on his Title VII discrimination
claims, Moore has two options. First, he may present evidence that shows
(a) he was performing his duties satisfactorily, (b) he suffered an adverse
employment action, and (c) the individuals who subjected him to the
adverse employment action did so because of his race. The Supreme
Court referred to this option as the direct method. Young v. United Parcel
Service, Inc., __ U.S.__, 135 S.Ct. 1338, 1345 (2015); see McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Moore may also
use an “indirect” burden-shifting method. He may present evidence that (a)
he was performing his duties satisfactorily, (b) he suffered an adverse
Page 48 of 60
employment action, and (c) similarly situated employees who were not
black did not suffer such an adverse employment action. If Moore can
present evidence on these issues, State Farm may state its nondiscriminatory reason for the adverse employment action. Once State
Farm has so stated, Moore must present evidence that State Farm’s stated
reason was a pretext, that is a lie. Young, 135 S.Ct. at 1345; see Millbrook
v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002) (pretext means a lie).8 If
Moore can present such evidence, then he may overcome Motion 114.
State Farm can overcome Motion 94 if it can present evidence that
disputes whether Moore can establish any elements on which he has the
burden of proof in either the direct method or the indirect method.
The Seventh Circuit has clarified that a party may use any type of
admissible, competent evidence (e.g., eye witness testimony, documents,
direct evidence, circumstantial evidence) to meet its burdens under either
the direct method or the indirect burden-shifting method. See David v.
Board of Trustees of Community College District No. 508, 846 F.3d 216,
8
State Farm argues throughout that Moore failed to present evidence that he was performing his duties
satisfactorily. Moore disputes this issue. The Court does not address this issue because Moore’s
discrimination claims fail for other reasons discussed below. Furthermore, Moore’s performance of his
duties is not an element of his retaliation claim discussed below. See Abrego v. Wilkie, 907 F.3d 1004,
1014 (7th Cir. 2018).
Page 49 of 60
224 (7th Cir. 2017); Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th
Cir. 2016).
Moore has not presented evidence on each element of the direct
method. Specifically, he has not presented evidence of a racial
discriminatory motive by anyone. See Young, 135 S.Ct. at 1345 (The
direct method requires evidence that an employment action “relies
expressly on a protected characteristic.”). As noted above, Moore did not
convey to anyone at State Farm the “mistreatment” he experienced at State
Farm was due to his race prior to filing his December 2013 Charge. Moore
speculates that race must have been the motive, but speculation is not
competent evidence. See Abrego, 907 F.3d at 1014 (A plaintiff’s personal
beliefs are insufficient to create an issue of fact to overcome summary
judgment). He cannot overcome State Farm’s motion for summary
judgment for any of his discrimination claims based on the direct method.
Moore also has not presented evidence on each element of the
indirect burden-shifting method. Moore first alleges race discrimination
because he was denied promotion from Support Systems Specialist to a
Service Level Liaison on the Server Hardware team. Moore has failed to
show that he was denied a promotion at all:
To demonstrate a prima facie case for failure to promote, a
plaintiff must produce evidence showing that: (1) [he or] she
Page 50 of 60
was a member of a protected class; (2) [he or] she was
qualified for the position sought; (3) [he or] she was rejected for
the position; and (4) the employer promoted someone outside
of the protected class who was not better qualified for the
position. Jaburek v. Foxx, 813 F.3d 626, 631 (7th Cir. 2016)
(citation omitted). Summary judgment for the employer is
appropriate if the employee fails to establish any of
the elements of a prima facie case
for failure to promote. See Atanus v. Perry, 520 F.3d 662, 673
(7th Cir. 2008) (citation omitted).
Riley v. Elkhart Community School, 829 F.3d 886, 892 (7th Cir. 2016).
Moore fails to present evidence that he was denied the Service Level
Liaison position because no such position existed in the Server Hardware
unit. Furthermore, Moore fails to present evidence that a person outside
the protected class received the promotion, because no one was promoted.
Danner transferred the work to Probst because he was already an Analystlevel employee. Danner did not promote him. Danner did not promote
anyone. Danner did not create a new Analyst-level position. Moore,
therefore, fails to present evidence of any discrimination in relation to a
failure to promote.
Moore argues that he proved that the Service Level Liaison position
was open and available because there was a gap in the Server Hardware
team that required a Service Level Liaison and he performed those duties.
Therefore, the position existed. The Court disagrees. Moore may have
shown that Danner was penny-wise and pound-foolish because he did not
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want to spend the money to create another Analyst-level position, but that
only proves he was a bad manager.9 The evidence does not prove the
position existed. The Court does not evaluate the wisdom of business
decisions. See e.g., Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th
Cir. 2008) (Court does “not sit as a ‘super personnel review board’ that
second-guesses an employer’s facial legitimate business decisions.”
(quoting Culver v. Gorman & Co., 416 F.3d 540, 547 (7th Cir. 2005)).
Moore fails to show a failure to promote because no Service Level Liaison
position was open and available to him. He cannot make out his
discrimination claim on his alleged failure to promote.
Moore also alleges race discrimination because he was told to
monitor or mentor Probst. Moore presents some evidence that he suffered
an adverse employment action in April 2013. Young, 135 S.Ct. at 1345.
For purpose of employment discrimination, an adverse employment action
is a quantitative or qualitative change in the terms and conditions of
employment that is more than a mere subjective preference, including
termination, less distinguished title, material loss of benefits, or significantly
diminished material responsibilities. See Johnson v. Cambridge Industries,
9
Moore stated that Hillesheim and Spurgin were ignorant of the fact that the Server Hardware unit
needed a Service Level Liaison. Moore Deposition, vol. 1, at 133-34. This testimony again supports the
proposition that they, like Danner, were bad managers, but does not show that a Service Level Liaison
position was open in the Server Hardware unit.
Page 52 of 60
Inc., 325 F.3d 892, 901-02 (7th Cir. 2003). When read favorably to Moore,
Moore suffered a significant reduction in his responsibilities at work. He
was performing Service Level Liaison duties. Those duties were taken
away from him and he was ordered to train and mentor his replacement. A
fact finder could conclude that this change in duties was an adverse
employment action.
Moore, however, does not present evidence of a similarly situated
non-black employee who was treated better than he. Probst was not
similarly situated to Moore because Probst was not a System Support
Specialist. Probst was already an Analyst when Danner authorized the
transfer of duties, and Probst was not ordered to monitor or mentor anyone.
Moore identifies no one who was in Moore’s position and was not
instructed to mentor his or her successor in the job. He does not present
evidence of race discrimination under the indirect burden-shifting method.
Moore alleges he was discriminated against when he was fired
because of his race. Termination is clearly an adverse employment action.
Moore again, however, does not present evidence of a similarly situated
non-black who had a comparable employment history who Peters and
Hillesheim did not fire. Moore Deposition, at 131-32. He does not present
evidence of race discrimination under the burden-shifting method. State
Page 53 of 60
Farm is entitled to summary judgment on Moore’s race discrimination
claims.
Harassment
Moore alleges illegal harassment because Hillesheim and Spurgin
directed him to monitor or mentor Probst. Moore fails to present evidence
that these events constituted racial harassment. Harassment under Title
VII means an individual is subjected to a racially hostile work environment
that is so severe and pervasive that the terms and conditions of
employment are altered. See Vance v. Ball State University, 570 U.S. 421,
427 (2013); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). The
work environment must be both objectively and subjectively racially hostile.
See Harris, 510 U.S. at 21; Yancick v. Hanna Steel Corp., 653 F.3d 532,
545 (7th Cir. 2011). Moore presents no evidence of either an objectively or
subjectively racially hostile environment. Moore presents no evidence that
Danner, Hillesheim, or Spurgin acted out of racial animus or engaged in
any racially hostile acts. Moore again speculates that race was the ultimate
cause for the direction to mentor Probst, but speculation is not evidence.10
See Abrego, 907 F.3d at 1014 (A plaintiff’s personal beliefs are insufficient
10
Moore bitterly complained about bullying, but Moore never asserted in any of his complaints that the
alleged bullying was racially motivated.
Page 54 of 60
to create an issue of fact to overcome summary judgment). Moore cannot
prove a Title VII harassment claim. State Farm is entitled to summary
judgment on Moore’s racial harassment claim.
Retaliation
To overcome summary judgment on a retaliation claim, Moore must
present evidence that: (1) he engaged in protected activity, such as
complaining about racial discrimination; (2) he suffered an adverse
employment action; and (3) a causal connection between the protected
activity and the adverse employment action. See Luckie v. Ameritech
Corp., 389 F.3d 708, 714 (7th Cir. 2004).11 Protected activity means
opposing a practice made unlawful by Title VII. See 42 U.S.C. § 2000e3(a).
Moore did not engage in protected activity until he filed his first
charge of discrimination dated December 24, 2013. That was the first time
he claimed that he was subjected to racial discrimination. Moore had
previously complained about his treatment at work, but he never claimed
that the mistreatment was racial discrimination. The “formal complaint of
civil rights violation” referred to in his December charge of discrimination
11
Moore could also pursue a burden-shifting method to overcome summary judgment. See Nichols v.
Southern Illinois University-Edwardsville, 510 F.3d 772, 784-85 (7th Cir. 2007). As with his discrimination
claims, however, Moore has not presented any evidence of any similarly situated person outside of his
protected group that was treated better than he.
Page 55 of 60
contains no allegation of racial discrimination. His prior complaints were
not protected activity. Tomanovich v. City of Indianapolis, 457 F.3d 656,
663-64 (7th Cir. 2006) and cases cited therein. Moore, therefore, cannot
present evidence of retaliation for any events that occurred prior to that
date. This includes the failure to promote in April 2013 and the instruction
to mentor Probst.
Moore states that he engaged in protected activity at the March 21,
2014 meeting. He told Hillesheim and West that he planned to file more
charges of discrimination. Filing charges of discrimination with the IDHR or
EEOC is protected activity. See Tomanovich, 457 F.3d at 663. Moore then
was placed on paid administrative leave and, later, discharged from his
employment on April 7, 2014. Being placed on paid administrative leave is
not an adverse employment action for purposes of Title VII retaliation
claims. Nichols v. Southern Illinois University-Edwardsville, 501 F.3d 772,
786-87 (7th Cir. 2007). Moore has no claim for retaliation based on his
placement on paid leave.
Moore also claims that he was discharged because of his protected
activity at the March 21, 2014 meeting. The only evidence Moore presents
is the sequence of events. On March 21, 2014, Moore engaged in
protective activity by stating that he would file more charges, and 15 days
Page 56 of 60
later, on April 4, 2014, Moore was notified that he was terminated. This
timing evidence is not sufficient. “‘[T]emporal proximity between an
employee’s protected activity and an adverse employment action is rarely
sufficient to show that the former caused the latter.’” Abrego, 907 F.3d at
1015 (quoting O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir
2011)). Moore must present “other evidence that supports the inference of
a causal link” in addition to the timing of events. Abrego, 907 F.3d at 1015.
Moore presents no other evidence to support a causal link. In fact,
the evidence indicates that Hillesheim contemplated terminating Moore
before the March 21 Meeting. Hillesheim specifically stated that Moore
was facing possible termination in the March 10, 2014 Memorandum.
Moore has no claim for retaliation based on his discharge. State Farm is
entitled to summary judgment on all of Moore’s remaining claims.
Moore’s Jury Request (d/e 105) and
State Farm’s Motion to Strike Reply (d/e 128)
Because State Farm is entitled to summary judgment on all of
Moore’s remaining claims, Moore’s Jury Request (d/e 105) and State
Farm’s Motion to Strike Moore’s Reply (d/e 128) are denied as moot.
THEREFORE, IT IS ORDERED that Plaintiff Keirand R. Moore’s
Motion for Summary Judgment (d/e 94) is DENIED; Plaintiff’s Jury Request
(d/e 105) is DENIED at moot; Defendant State Farm Mutual Automobile
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Insurance Company’s Cross-Motion for Summary Judgment on Events
Leading up to and Culminating with Moore’s 2012 Demotion and
Corresponding Salary Reduction (d/e 110) is ALLOWED; Defendant’s
Cross-Motion for Summary Judgment on all Remaining Claims (d/e 114) is
ALLOWED; and Defendant’s Motion to Strike Reply (d/e 128) is DENIED
as moot. The Court enters summary judgment in favor of Defendant State
Farm Mutual Automobile Insurance Company and against Plaintiff Keirand
Moore on all remaining claims. THIS CASE IS CLOSED.
ENTER: January 28, 2019
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE
Page 58 of 60
GLOSSARY OF STATE FARM ACRONYMS
BA
Business Analyst
BLS
(unknown meaning)
BASE
(unknown meaning)
CCDS
Customer Connection/Department Services
CLS
Customized Learning Schedule
COC
State Farm Code of Conduct
CPT
Client Production Team
EOD
End of the day
EPR
Employee Performance Results Tool
ESR
Enterprise Server Release
HR
Human Resources
ISC
Insurance Support Center or Insurance Service Center. (The
Court found both names associated with this acronym.).
ITIL
International Library for Information Technology or
Information Technology Infrastructure Library. (The Court
found both names associated with this acronym.).
JOP
Job Opportunity Program
ODP
Open Door Policy
OLA
Operational Level Agreement
Page 59 of 60
OSS
Organizational Support Specialist
PM
Project Manager
PSL
Paid Sick Leave
SF
State Farm
SH
Windows Server Hardware Team
SLL
Service Level Liaison
SLM
Service Level Manager
SM
Service Management
SSS
Systems Support Specialist
TAB
Test Analyst – Business
TP
Talent Profile
Page 60 of 60
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