Jones et al v. National Council of Young Men's Christian Associations of the United States of America et al
Filing
456
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 6/18/2014:Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES JONES, NICOLE STEELS,
KAVON WARD, AND IONA TOLES,
Plaintiffs,
v.
NATIONAL COUNCIL OF YOUNG
MEN’S CHRISTIAN ASSOCIATIONS
OF THE UNITED STATES OF
AMERICA (“YMCA of the USA”), an
Illinois not-for-profit corporation, and
ELINOR HITE, former Senior Vice
President of YMCA of the USA,
Defendants.
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No. 09 C 06437
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiffs James Jones, Nicole Steels, Kavon Ward, and Iona Toles have filed this suit on
behalf of themselves and other similarly-situated employees of the National Council of Young
Men’s Christian Associations of the United States of America (the “Y”), alleging claims of race
discrimination and retaliation against the Y and Elinor Hite, the former director of the Y’s human
resources (“HR”) department, pursuant to Section 1981 of the Civil Rights Act of 1866, 42
U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Illinois
Human Rights Act (“IHRA”), 775 ILCS 5/1-101 et seq., and the D.C. Human Rights Act
(“DCHRA”), D.C. Code § 2-1401.01 et seq. Now before the Court are the defendants’ motions
for summary judgment on the claims asserted by each plaintiff in the fourth amended complaint.
For the reasons set forth below, the defendants’ motions for summary judgment are granted in
part and denied in part.
I.
BACKGROUND
The following account of the facts is taken from the record and the parties’ Local Rule
56.1 statements and responses. On a motion for summary judgment, the Court construes the facts
in the light most favorable to the nonmoving party, see Hanners v. Trent, 674 F.3d 683, 691 (7th
Cir. 2012) (citing Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 563 (7th Cir. 2009)), and
“gives [the plaintiffs] the benefit of conflicts in the admissible evidence and favorable inferences
from that evidence.” Smith v. Bray, 681 F.3d 888, 892 (7th Cir. 2012) (citing O’Leary v.
Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011)). However, the Court may only
consider “admissible evidence in assessing a motion for summary judgment.” Gunville v.
Walker, 583 F.3d 979, 985 (7th Cir. 2009) (citing Haywood v. Lucent Tech., Inc., 323 F.3d 524,
533 (7th Cir. 2003) (inadmissible evidence will not overcome a motion for summary judgment)).
A. James Jones
Plaintiff James Jones was hired on or about August 25, 2004, by Steven Timmons, the
Y’s Strategic Director of HR at the time.1 Pl. 56.1 Resp., Dkt. 312 at 23, ¶ 29; Pl.’s Add’l Facts,
Dkt. 312 at 62, ¶ 3. Jones was hired to assume the duties and responsibilities of Director of
Training and Organizational Development (“OD”), the position Jones held until his employment
was terminated by the Y on or about October 15, 2007. Pl.’s 56.1 Resp., at 47, ¶ 62. As Director
of Training and OD, Jones was responsible for “rolling out” and conducting training for Y
employees. Defs. 56.1 Stmt., Dkt. 270 at 12, ¶ 29. Although Jones disputes that Timmons was
solely responsible for hiring him because, as Jones contends, “all hires [had to] be approved by
1
The senior officer in the Human Resources department is referred to variously in the
briefs as the “Strategic Director,” “Director,” or “Director of HR and OD.” In 2006, defendant
Hite’s title was changed from “Director of HR and OD” to Senior Vice President. Pl. 56.1 Resp.,
Dkt. 312 at 4, ¶ 3.
2
[the Y’s] leadership team … or CEO,” Pl. 56.1 Resp., Dkt. 312 at 24 (response to ¶ 29), it is
undisputed that Timmons was Jones’ first supervisor. Defs. 56.1 Resp., Dkt. 375 at 4, ¶ 5.
Jones alleges that during his time at the Y he was subjected to racial discrimination (he is
an African American) with respect to his level of compensation and the salary raises he received
from the Y to bring his compensation in line with professionals in comparable positions (“equity
salary increases”), the Y’s failure to promote him, the compensation he received for serving as
the interim Director of HR, his annual performance evaluations and merit pay increases, and his
termination in October of 2007. He also complains that the Y retaliated against him for engaging
in protected activities, which generally involve the concerns he expressed to Hite about the Y’s
policies and culture negatively impacting minority employees.
1. Compensation, Performance Evaluations, and Merit Increases
Jones’ starting salary was set at $80,016. Pl. 56.1 Resp., Dkt. 312 at 30, ¶ 40. Jones told
Timmons, before and after he was hired, that he felt his starting salary was too low, potentially
because he was African American. Defs. 56.1 Resp., Dkt. 375 at 5, ¶ 8. As evidence of the
disparity in his starting salary, Jones points to two other Caucasian, director-level employees,
who were earning higher salaries than him when he was hired and throughout his employment at
the Y. First, Sharon Rakowski, a director in HR, was earning a salary of $93,672, when Jones
was hired.2 Id. at 4, ¶ 6. Second, Kurt Kramer received a starting salary of $130,008, id. at 6,
¶ 10, and was hired into the “Y-University” department as Director of Program Leadership and
National Training approximately one or two months before Jones was hired into HR. Id. at 5, ¶ 7.
2
The defendants dispute this evidence because Jones cites portions of the record that
have no foundation and that have not been authenticated. Defs. 56.1 Resp., Dkt. 375 at 4, ¶ 6.
Moreover, the defendants note that from approximately July 9, 2001, to January 28, 2004,
Rakowski held the highest-ranking position in HR. Id. at 4-5.
3
In a memorandum dated April 12, 2005, Timmons recommended that Jones’ salary be
increased to $98,500. Pl. 56.1 Resp., Dkt. 312 at 32, ¶ 41; Pl. 56.1 App., Dkt. 326-39, Tab 85a
(“Human Resources Equity Review and Adjustments”). Timmons based his recommendation on
a comparison of Jones’ salary to internal and external data, and determined that the closest
comparator to Jones’ position, internally, was Kramer’s position, Director of Program
Leadership and Training. Defs. 56.1 Resp., Dkt. 375 at 6, ¶ 9.3 As a result, on May 1, 2005,
Jones received an “equity raise,” increasing his salary to $100,008, which Timmons was
involved in securing. Pl. 56.1 Resp., Dkt. 312 at 32, ¶ 41.
That same year, Jones also received a “merit” salary increase. At the Y, annual merit
increases were assigned as percentages of an employee’s existing salary, based on a range
correlated to the performance rating that the employee received for that year. Id. at 12-13, ¶ 17.
The Y’s 2005 fiscal year ran from July 1, 2004, to June 30, 2005. Id. Under the 2005 guidelines,
the merit increase ranges were assigned to performance ratings as follows:
Rating
Increase Range
Far Exceeds [Expectations]…………5% - 6%
Exceeds [Expectations]…………….. 3.1% - 4.9%
Meets Expectations………………… 1% - 3%
Below Expectations…………………0%
Id. at 13. In September 2005, Jones received a 3% merit increase, which corresponded to a
“meets expectations” performance review, according to the 2005 guidelines. Pl. 56.1 Resp., Dkt.
312 at 32, ¶ 42.
3
The defendants object to this evidence (a memo) on the grounds that the plaintiffs failed
to authenticate it properly. The defendants, however, cite to the same memo in their appendix as
evidence. This is an example, on the defendants’ side, of the many unproductive squabbles
between the parties about immaterial facts that have slowed the resolution of these motions.
4
Timmons resigned on or about June 3, 2005. Id. at 24, ¶ 30.4 Thereafter, Jones served as
the interim director of HR until approximately August 15, 2005. Id. During his time as interim
director, Jones sought a salary increase from Dan Nussbaum, the Strategic Director of YUniversity, and Ken Gladish, the Y’s CEO at the time, to compensate for his additional duties
and responsibilities. Defs. 56.1 Resp., Dkt. 375 at 7, ¶ 12. Although Jones did not receive
additional compensation while he was serving as the interim director, id., he did receive a onetime bonus of $7,616 on August 30, 2005. Pl. 56.1 Resp., Dkt. 312 at 38, ¶ 54. The parties do not
dispute that the bonus Jones received was larger than the standard bonus awarded for serving in
an interim position,5 but Jones alleges that his interim bonus was discriminatory, in part, because
of the delay in paying it. Id. at 39, ¶ 56. According to Jones, the Y’s culture was one in which “a
certain thing happens…without prompting or any begging…[for] one group and it happens when
the other…group is kicking and screaming and jumping through hoops to get it done.” Id.
On August 15, 2005, Elinor Hite assumed the full-time position of Director of HR and
OD, and Jones resumed his duties as Director of Training and OD. From that point on, Jones
4
Plaintiff maintains that this fact is not adequately supported, but nevertheless does not
appear to dispute the fact. This is an example, on the plaintiffs’ side, of the many unproductive
squabbles between the parties about immaterial facts that have slowed the resolution of these
motions.
5
Specifically, the defendants state, and the plaintiff does not dispute, that Jones received
a one-time bonus of $7,616 on August 30, 2005—“or about 37.5% of his existing salary.” Pl.
56.1 Resp., Dkt. 312 at 38, ¶ 54. A 30% increase was the customary bonus for interim service
under the Y’s policies at the time. Id. It is unclear, however, how the parties calculate the 37.5%
figure. For instance, according to the record, Jones was earning $100,008 annually in 2005. But
$7,616 is only 7.61% of an annual salary of $100,008. Further, the $7,616 does not appear to be
37.5% of his monthly salary, or the salary he earned for the period he served as interim
director—approximately June 3 to August 15, 2005. Id. Between that time period, Jones would
have been paid roughly $11,540 (before tax). But again, $7,616 is approximately 66% of
$11,540. In any event, the parties do not dispute that the plaintiff did receive a bonus for his
interim work, and that the bonus was higher than the bonus customarily awarded under the Y’s
policies at the time.
5
reported to Hite. Id. at 24, ¶ 30. It is undisputed that Jones never pursued another position at the
Y during his employment with the organization. Id. at 25, ¶ 31.
In mid-2005, before Hite took over as the director of HR, the Y’s HR department
conducted a compensation equity review.6 Id. at 17, ¶ 22. The equity review was conducted to
address, among other concerns, a lack of established or formal guidelines relating to salary
administration and equity among positions. Id. The review involved three stages. Id. at 17, ¶ 23.
First, HR reviewed all job descriptions and identified fifty benchmark positions representing
70% of the organization. Id. Next, the Y hired an external consultant, Hewitt Associates, Inc., to
perform a market study of the benchmark positions (“Hewitt Study”). Id. at 17-18, ¶ 23. Finally,
using the data from the market study, the Y established (1) salary bands and job grades; (2) job
families and hierarchy; (3) policies and procedures for salary administration; (4) communication
plans for all levels of the Company; and (5) training for managers. Id. at 18, ¶ 23.
In January 2006, as a result of the 2005 compensation study, Jones received a second
equity increase, which brought his salary up to $115,008. Id. at 33, ¶ 43. Jones, however,
complained that the equity increase he received was lower than the increase he should have
received under the “Hewitt [S]tudy recommendations.” Id. That same year, Jones continued to
seek equity increases in an attempt to bring his salary in line with those he believed to be
similarly-situated staff members. Defs. 56.1 Resp., Dkt. 375 at 7, ¶ 13. On or about July 2, 2006,
Jones sent Hite a memorandum titled “Salary Adjustment—Director, Organizational
Development,” in which he requested a raise. Pl. 56.1 Resp., Dkt. 312 at 34, ¶ 45. In that
memorandum, Jones provided “benchmarks” for his own salary, which consisted of external data
6
The record does not reflect who initiated this compensation review.
6
from third-party sources and internal data relating to two Y directors: Laura Fortson and
Kramer.7 Id.
Jones acknowledges that his request for an equity raise was granted, in part, through the
merit increase he received for fiscal year 2006, in addition to a lump sum payment. Id. at 37,
¶ 51. Specifically, Jones received a 5.5% merit increase, the largest in HR for that year, and an
additional $2,500. Id. at 37, ¶ 51. This raise increased Jones’ salary to $123,844. Id. The Y’s
fiscal year for 2006 ran from July 1, 2005, to June 30, 2006. Id. at 13, ¶ 18. Under the guidelines
for 2006, the following merit increase ranges were assigned to performance ratings as follows:
Rating
Increase Range
Far Exceeds [Expectations]…………5.5% - 7.0%
Exceeds [Expectations]…………….. 3.5% - 5.5%
Meets Expectations………………… 0.5% - 3.5%
Below Expectations………………... 0%
Id. at 13-14, ¶ 18. Approved increases were effective September 1, 2006. Id.
In September 2007, Jones received a 3% merit raise, which increased his salary to
$127,704. Id. at 37, ¶ 52. The Y’s fiscal year for 2007 ran from July 1, 2006 to June 30, 2007. Id.
at 14, ¶ 19. Under the guidelines for 2007, the following merit increase ranges were assigned to
performance ratings as follows:
Rating
Increase Range
Far Exceeds [Expectations]…………5.0% - 6.5%
7
It is undisputed that Fortson was not in Jones’ department, had more years of experience
at the Y than Jones, and had a different supervisor. Pl. 56.1 Resp., Dkt. 312 at 35, ¶ 46. For fiscal
year 2006, Fortson received a merit increase of 4.7%, and in fiscal year 2007, Fortson received a
performance rating of “exceeds expectations.” Pl. 56.1 Resp., Dkt. 312 at 35, ¶ 47.
It is also undisputed that Kramer was not in Jones’ department and, at least at some
points, had a different supervisor than Jones. Id. at 35-36, ¶ 48. From approximately July 6,
2004, to June 30, 2007, Kramer reported to Susan Rittscher. Id. at 36, ¶ 48. From approximately
July 1, 2007, until September 2008, Kramer reported to Terri Radcliff. Id. In fiscal year 2006,
Kramer received a merit increase of 4.3%. Id. at 36, ¶ 49. In fiscal year 2007, Kramer received a
merit increase of 2.9%. Id.
7
Exceeds [Expectations]…………….. 3.25% - 5.25%
Meets Expectations………………… 1.0% - 3.5%
Below Expectations………………... 0%
Id. at 16, ¶ 20. Approved increases were effective September 1, 2007. Id.
2. Position Elimination
In late June 2006, Neil Nicoll took over as the Y’s CEO. Defs. 56.1 Resp., Dkt. 375 at 8,
¶ 15. During his first 90 days on the job, Nicoll directed Hite to reduce the headcount in the HR
department. Id. The defendants assert that during the first or second quarter of 2007, Hite
informed Nicoll that she was going to eliminate Jones’ position in order to reduce headcount, in
accordance with Nicoll’s directive. Pl. 56.1 Resp., Dkt. 312 at 43, ¶ 59. According to Hite, the
position elimination was postponed, however, to allow Jones to take medical leave
(approximately March 16 to June 22, 2007), then bereavement leave (October 1 to October 4,
2007), and finally, so that Jones could participate in an interview with Robert Casey (on October
10, 2007), an attorney with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (“Ogletree”), hired
by the Y to investigate Steels’ complaint of a hostile and intimidating work environment
(explained below). Id. at 43, ¶ 59; at 45, ¶ 60; Def. Resp., Dkt. 375 at 12, ¶ 21. Jones’
employment was terminated on October 15, 2007, five days after he was interviewed by the law
firm. Pl. 56.1 Resp., Dkt. 312 at 47, ¶ 62.
Jones alleges that Hite’s decision to eliminate his position, and thereby terminate his
employment, was both discriminatory and in retaliation for the protected activities that he
engaged in during the final months of his employment in 2007. Jones’ retaliation claim hinges, in
part, on the timing of Hite’s decision—specifically, if the decision to eliminate his position was
made prior to Jones’ protected activities, Hite’s decision could not have been made in retaliation
for those protected activities. To that end, Jones disputes the timing of Hite’s decision to
eliminate his position, citing evidence that suggests Hite did not make the decision to terminate
8
his position until much later in the year, after he had raised concerns about the effect of the Y’s
policies on minority employees. For instance, at some point between January 2007, and April
2007, when Jones took medical leave, Hite discussed expanding Jones’ job responsibilities to
include training local YMCA branches and associations. Defs. 56.1 Resp., Dkt. 375 at 11, ¶ 20
(citing Jones Decl., Dkt. 325-30, Tab 30 at ¶ 9). After that initial discussion, however, Hite never
mentioned the opportunity again. Id.
Hite also testified that, as of May 2007, she “had no intentional name in mind” for a
further position elimination. Id. at 11-12, ¶ 21. Moreover, on May 12, 2007, while Jones was on
medical leave, Hite drafted a chart detailing possible ways to reorganize the HR department. Id.
(citing Pl. 56.1 App., Dkt. 326-4, Tab 54 (“Plaintiff’s Deposition Exhibit 205”)). In a box on the
chart titled “what if,” Jones’ initials (“JNJ”) appear. Id. at 12, ¶ 23. Next to that box, under the
title “concerns,” Hite again wrote “JNJ” and “very solid OD skills + HR generalist skills.” Id.
According to Jones, this is evidence that, at least at that point, Hite was considering keeping
Jones, and had included him in her possible reorganization scenarios. Moreover, Jones contends
that Hite noted the race of each employee next to their corresponding positions on the chart. For
example, next to the draft organizational tree, under the title “staffing thoughts” at the top of the
memo, Hite wrote “WF” and “BM” next to two positions. Id. According to Jones, these are
abbreviations for “white female” and “black male,” respectively. Id. Hite testified that she could
not recall why she had written “WF” and “BM” on the chart. See Hite’s Dep., Pl. App., Dkt. 362,
Tab 8 at 465:7-12; see also id. at 465:7-12 (testimony that she was “not quite sure what [she]
was doing there” with respect to writing “BM” on the chart).
Based on this evidence, Jones argues that a fact finder could infer that Hite did not decide
to eliminate his position until September or October 2007. Resp., Dkt. 334 at 23. In a declaration
9
attached to his response to summary judgment, however, Jones states that “[w]hen [he] met with
Ms. Hite in late August 2007 to discuss [his] review, she did mention my position would be
eliminated.” Jones’ Decl., Pl. App., Dkt. 325, Tab 30 at ¶ 16.
On or about October 15, 2007, Jones was terminated. Pl. 56.1 Resp., Dkt. 312 at 47, ¶ 62.
Hite told Jones that his termination was in connection with the elimination of a position, and that
the position elimination was part of a reorganization necessary for budget cuts. Id. at 49, ¶ 63;
Defs. 56.1 Resp., Dkt. 375 at 19, ¶ 34. Moreover, Jones believed that the budget cuts were
mandated by the CEO. Pl. 56.1 Resp., Dkt. 312 at 49, ¶ 63. At the time, Hite asked Jones if he
had any questions, and Jones said he did not. Defs. 56.1 Resp., Dkt. 375 at 19, ¶ 34.
Jones contends that the justification for his termination is dubious, however, based on,
among other things, the culture and environment in the HR department, the allegedly
discriminatory performance evaluations and merit increases he had received, the allegedly
discriminatory hiring decisions he had observed, and Steels’ pending complaint of
discrimination. Pl. 56.1 Resp., Dkt. 312 at 49-50, ¶ 64. Jones also questions the honesty of Hite’s
explanation based on the manner in which Hite purportedly investigated Maurice Horsey’s (an
African American employee) 2006 complaint of harassment and racial discrimination against
Jim Kauffman, Horsey’s supervisor. Id. at 52, ¶ 65. Horsey told Hite that he felt his performance
review was “very, very subjective,” and that Kauffman had made “slurs and jokes” at his
expense. Id. During the investigation, however, Hite relayed to Jones that Nicoll believed Horsey
was a poor performer and lazy. Id. Moreover, Hite never inquired about Horsey’s complaints of
slurs and jokes, but only addressed the issues with Horsey’s performance evaluations. Defs. 56.1
Resp., Dkt. 375 at 10, ¶ 18. According to Jones, he objected to the discriminatory manner in
10
which he believed Horsey was being treated, and questioned whether Nicoll had ever worked
with Horsey, and therefore, whether Nicoll was in a position to evaluate his work ethic. Id.
Jones also challenges the explanation he was given for his termination because he
believed that Veronica Robertson had been given the same explanation for her termination,
which, according to Jones, was not accurate. Pl. 56.1 Resp., Dkt. 312 at 53, ¶ 67. Robertson was
purportedly terminated in connection with Nicoll’s directive to reduce the budget and headcount
in HR. However, after Robertson was terminated, Hite hired another employee, Emily
Rutkowski (a white female), who assumed the same responsibilities as Robertson, meaning that
neither the budget nor headcount were reduced. Id. at 54. Moreover, Rutkowski was paid a
signing bonus because her start date was delayed while Robertson’s termination was being
effectuated. Id. Similarly, on October 25, 2007, after Jones’ termination, Hite sent Steels an
email about posting an opening for a Senior HR Generalist position, Defs. 56.1 Resp., Dkt. 375
at 22, ¶ 40, despite the fact that the justification for Jones’ termination was to reduce headcount
in HR. A few weeks later, Hite emailed Nicoll, notifying him that she had found “an excellent
candidate” for that position, and stating that the candidate was “Hispanic.” Id.
Jones also points to direct evidence that Hite improperly considered race while deciding
how to reorganize the HR department. Specifically, sometime prior to Jones’ termination, Hite
also created an “HR/OD” chart that reflected Hite’s “Desired State” for the department
“effective” November 1, 2007. Defs. 56.1 Resp., Dkt. 375 at 19, ¶ 35 (citing Pl. 56.1 App., Dkt.
326-3, Tab 53 (“Plaintiff’s Deposition Exhibit 204”)). In handwritten notes, under the portion of
the reorganization chart depicting HR as it was “desired,” Hite wrote a number of “issues” that
she was considering. Id. These issues included “leave,” “potential,” “passion,” “cost,” and
“effectiveness.” Id. The first issue listed, however, was “race.” Id. Moreover, in her deposition,
11
Hite testified that she “always look[ed] at multiple factors whenever [she’s] reorganizing…like
job capabilities and race and gender.” Id. Hite did not explain why she wrote “race” as an issue
on the chart. Hite’s Dep., Pl. App., Dkt. 362, Tab 8 at 494:20-25; 495:1-25.
The parties also dispute whether Jones’ responsibilities were absorbed by employees not
within his protected group (African American), which, as explained in detail below, is necessary
to demonstrate racial discrimination in a claim involving a mini-reduction-in-force (“RIF”). The
defendants contend that after Jones was terminated, his duties were absorbed by the HR
department generally. Pl. 56.1 Resp., Dkt. 312 at 47, ¶ 62. Jones disputes this, but fails to support
his contention with relevant and admissible evidence, other than a single citation to testimony by
Hite, in which she states that Jones’ “functions could be re-designated or not done within the HR
department.”8 See id. at 48. The remainder of Jones’ citations are irrelevant, referring generally
to an open position for an HR generalist, and not to whether his duties were absorbed by HR,
another department, or any other select number of employees not in his protected group.9 Id. at
48-49.
8
Jones cites to an “employee info spreadsheet,” Pl. 56.1 App., Dkt. 328, Tab 128, but
fails to lay a foundation for or authenticate this piece of evidence, which was offered in its
native, Microsoft Excel format. Moreover, Jones cites to the investigative report conducted by
Ogletree, but fails to lay a foundation for this document, either as non-hearsay or as falling
within an exception to the hearsay rule. Id.
9
Jones states that in response to an interrogatory concerning the assumption of his duties
after his termination, the defendants stated that “[t]o the extent any of James Jones[’s]
responsibilities remained after his position was eliminated, they would have been absorbed by
Michelle VanDeventer, Project Coordinator HR/OD and/or Elinor Hite, Director of HR and
OD.” Defs. 56.1 Resp., Dkt. 375 at 21, ¶ 38. Both of those employees are Caucasian. However,
the portion of the record that Jones cites does not support this proposition. In fact, that portion of
the record supports very little because it is merely a list of objections to the plaintiff’s
interrogatories, see Pl. 56.1 App., Dkt. 328, Tab 118 (“Defendants’ Second Supplemental
Objections and Response to Plaintiff’s Discovery Requests Issued April 6, 2011”), and does not
contain the quoted language to which Jones refers.
12
After his termination, Jones signed and filed an EEOC charge, alleging race
discrimination, on June 6, 2008. Defs. 56.1 Resp., Dkt. 375 at 23, ¶ 42. The EEOC received the
complaint on June 17, 2008.10 Id.
3. Protected Activities and Retaliation
Jones alleges that Hite and the Y retaliated against him for engaging in protected
activities during his employment. In 2006, Jones questioned and called for an adverse impact
review of the merit system11 and “interven[ed] to push for individual changes when questions
were raised by individuals regarding their” merit increases. Pl. 56.1 Resp., Dkt. 312 at 56, ¶ 72.
In 2007, Jones objected to the initial findings of Horsey’s investigation (described above). Id.
Jones also reviewed the merit increases for 2007, Defs. 56.1 Resp., Dkt. 375 at 16, ¶ 29, and on
September 8, 2007, sent Steels an email titled “Merit Increases,” in which he stated that he had
received “a couple questions” from the staff regarding the increases (“September 8 email”). Pl.
56.1 Resp., Dkt. 312 at 56-57, ¶ 73. In that email, Jones expressed a concern that upcoming
“layoffs will probably impact minorities and older workers more than others” if the Y
“follow[ed] their [then] current pattern,” in addition to concerns he had with merit increases for
that year. Defs. 56.1 Resp., Dkt. 375 at 16, ¶ 29. According to Jones, his email was meant to
convey the message that “there seemed to be some glaring inequities and [they] need[ed] to
follow up to determine whether there really [were] inequities or [whether] there [was] another
explanation for those numbers.” Id. Steels responded to this email, copying Hite, with data
10
The Court notes that the record does not include Jones’ (or any of the plaintiffs’)
EEOC right to sue letter. Despite that omission, the defendants have not challenged any of the
plaintiffs’ claims on the basis that no letter was issued or that this lawsuit was not timely filed.
11
Jones describes his “call for an adverse impact review” as “possibly” protected activity
in his response to the defendants’ statement of fact. See Pl. 56.1 Resp., Dkt. 312 at 56, ¶ 73.
13
regarding the percentages of African Americans and the merit increases they had received. Pl.
56.1 Resp., Dkt. 312 at 57, ¶ 74.
Jones also claims he engaged in protected activity when he (1) had a conversation with
Hite regarding the findings and data in the September 8 email, (2) had a conversation with Hite
regarding racial tensions in HR, (3) opposed Emily Gondek’s (a Caucasian Senior HR
Generalist) proposed referral program, which, according to Jones would have disadvantaged
minority employees, and (4) followed up on concerns in the strategic sourcing department
regarding promotion and compensation issues that negatively impacted minorities. Id. at 58, ¶
75.
According to Jones, he also discussed specific employee merit increases with Hite after
the September 8 email. Defs. 56.1 Resp., Dkt. 375 at 17, ¶ 31. For example, Jones brought up a
situation involving an African American woman, Phyllis Lee. Id. According to Jones, “even
though…Lee’s managers had approved a certain level [merit] increase…Hite refused to award
it.” Jones Decl., Dkt. 325, Tab 30 at ¶ 19. Jones told Hite that what happened to Lee was wrong,
and that the incident could easily be considered racial discrimination, given how Lee had been
treated. Defs. 56.1 Resp., Dkt. 375 at 17, ¶ 31. According to Jones, after this discussion, Hite
accused him of encouraging people to sue the Y. Id. at 17, ¶ 31. Hite, however, denies making
this statement. Id.
Furthermore, according to Jones, the conversation he had concerning racial tensions with
Hite involved the way that Hite treated Steels and Yvonne Bibbs, another African American
employee in HR. Id. at 13, ¶ 24. In particular, Jones believed that Hite treated Steels and Bibbs in
a way that was based on stereotypes of African Americans. Id. at 13, ¶ 25. For instance, both
Steels and Bibbs were single mothers, and Hite asked Jones whether all of Steels’ children were
14
from the same father and noted that neither woman was married. Id. According to Jones, Hite
also appeared surprised when African Americans were articulate. Id.
Jones was also concerned because during a weekly meeting he had with Hite in August or
September of 2007, Hite told him that there would be a change at the front desk, where Iona
Toles, an African American woman, worked as a receptionist. Id. at 15, ¶ 28. Toles’ nickname
was “the voice of the Y,” because even when she did not answer the phone, her voice was on the
pre-recorded greeting. Id. Jones later discovered, after his termination, that Toles was replaced
with a young Caucasian woman. Id. Finally, Jones claims that he engaged in protected activity
when he took part in the Ogletree investigation of Steels’ complaint on October 10, 2007. Id. at
18, ¶ 33; Pl. 56.1 Resp., Dkt. 312 at 58, ¶ 76.
Jones maintains that Hite retaliated against him for these actions during the six months
prior to his termination. Pl. 56.1 Resp., Dkt. 312 at 59, ¶ 78. Examples of Hite’s retaliation, as
alleged by Jones, include: (1) accusing him of encouraging people to sue the Y; (2) instituting a
“documentation campaign” designed to “set up discipline,” but that did not actually result in
discipline, (3) inhibiting Jones’ ability to perform his job by restricting his contact with senior
leadership, and (4) changing her level of supervision and telling the employees under Jones not
to bring their issues to him. Id. Further, Jones believes that his final performance review and, as
explained above, the eventual elimination of his position, were retaliatory. Id. at 60, ¶ 79. As
evidence that his position elimination was retaliatory, Jones notes that, shortly after his
termination, another individual was hired to fill a position substantially similar to his own. Id. at
60, ¶ 80.
As evidence of retaliatory motive, Jones also points to notes that Hite wrote in September
2007, describing Jones as “divisive,” “insubordinate,” and “argumentative.” Defs. 56.1 Resp.,
15
Dkt. 375 at 17, ¶ 32. Hite contends that at least part of that feedback was from Dennis Cruckson,
in the form of emails attached to the notes. Id. at 18, ¶ 32. Hite also asked Jones why African
American employees approached him when they had problems, and then instructed Jones to go
to her first before talking to Y leadership team members. Id.
B. Nicole Steels
Steels and Jones worked in the HR department during roughly the same period, and their
claims derive from and rely on much of the same evidence.12 Steels worked at the Y from
approximately November 1999 until October 2008, when she resigned. Defs. 56.1 Resp., Dkt.
381 at 3, ¶ 3. From November 29, 1999, until August 2001, Steels worked as a Benefits
Administrator. Id. In August 2001, the Y promoted Steels to HR Generalist. Id.; Pl. 56.1 Resp.,
Dkt. 313 at 16, ¶ 24. She held that position until May 2005, when she was promoted to Senior
HR Generalist. Pl. 56.1 Resp., Dkt. 313 at 16-17, ¶ 26. Overall, during her employment with the
Y, Steels received two promotions. Id. at 31, ¶ 46. Additionally, Steels earned a master’s degree
in human resource management in 2002, was certified as a “Senior Professional in Human
Resources” (“SPHR”) prior to the end of her employment with the Y,13 and earned a SPHR
certification in 2007. Defs. 56.1 Resp., Dkt. 381 at 3, ¶ 3.
12
Jones and Steels filed a combined response to the defendants’ motions for summary
judgment. See Resp., Dkt. 334.
13
Steels testified that she earned a SPHR certification that had expired a year prior to her
deposition. Steels’ Dep., Pl. App., Dkt. 326, Tab 5 at 13:21-14:3. There is no other record
evidence regarding this certification. However, an internet search for that term reveals that the
HR Certification Institute (“HRCI”) administers the exam for that certification. See HR
Certification Institute, available at www.hrci.org (last visited May 1, 2014). The HRCI website
explains that the SPHR certification is designed for the professional who “plans…HR
policy…[and] focuses on the ‘big picture,’” among other responsibilities. See id., available at
www.hrci.org/sphr/ (last visited May 1, 2014).
16
Steels alleges that the Y discriminated against her based on her race with regard to
compensation, performance evaluations, merit and equity increases, failure to promote, and a
refusal, by Hite, to allow her to telecommute after her maternity leave. Steels also alleges that
Hite created a “hostile and intimidating” work environment, id. at 4, ¶ 5, which, among other
factors, ultimately resulted in the Y constructively discharging her and retaliating against her for
engaging in protected activities.
1. Compensation, Performance Evaluations, and Merit Increases
Steels claims that the compensation, performance evaluations, and equity and merit
increases she received as a Senior HR Generalist were discriminatory. See, e.g., Pl. 56.1 Resp.,
Dkt. 313 at 25, ¶ 38. In particular, Steels claims that her performance ratings and compensation
were discriminatorily low when compared to the salaries and merit increases of Emily Gondek,
Michelle VanDeventer, and Lourdes Durren, all of whom also worked in HR, as well as other
unidentified Y employees who worked outside of HR. Id. More generally, Steels claims that Hite
failed to timely complete and provide her with evaluations so that she was aware of Hite’s
expectations. See generally Defs. 56.1 Resp., Dkt. 381 at 11-12, ¶ 18; 12-13, ¶ 20; 14, ¶ 24.
As of January 2004, Steels was earning a salary of $48,696. Pl. 56.1 Resp., Dkt. 313 at
24, ¶ 35. After her promotion to Senior HR Generalist in May 2005, her salary was increased to
$58,008. Id. Steels also received a 3% merit increase on September 1, 2005, which brought her
salary to $59,760. Id. In comparison, Gondek was hired in November 2005 as a Senior HR
Generalist at an annual salary of $70,000. Id. at 26, ¶ 40. VanDeventer began working in the HR
department as a Project Coordinator at an annual salary of $42,500. Id. at 28, ¶ 41.
Around January 16, 2006, Steels received an equity salary increase, which brought her
salary to $68,712. Id. at 24, ¶ 36. For fiscal year 2006, Steels received a performance rating of
17
“meets expectations” and a merit increase of 2.9%. Id. at 20, ¶ 30; id. at 25, ¶ 36. That merit
increase brought Steels’ salary to $70,728. Id. at 25, ¶ 36. That same year, Gondek received a
rating of “exceeds expectations,” id. at 23, ¶ 33, and a merit increase of 4%. Id. at 26, ¶ 40.
Moreover, VanDeventer received a 4.25% merit increase, which corresponded to a performance
rating of “exceeds expectations.” Id. at 28, 41. This raise increased VanDeventer’s salary to
$49,656. Id.
For 2007, Hite gave Steels a rating of “meets expectations” and a merit increase of
3.8%.14 Id. at 21, ¶ 31; id. at 25, ¶ 37. At that point, Steels’ salary was $73,080. That year,
Gondek received a 3.3% merit increase, which corresponded to a rating of “meets expectations.”
Id. at 23. In September 2007, VanDeventer received a rating of “exceeds expectations” in a
review that was prepared by both Hite and Jones. Id. She also received a 4.5% merit increase,
which increased her annual salary to $51,912. Id. at 28, ¶ 41.
In approximately April 2007, Gondek became a part-time employee and her salary was
reduced by 80 percent. Id. at 26-28, ¶ 40. On approximately January 1, 2008, Hite hired Lourdes
Durren, a Hispanic woman, as a Senior HR Generalist. Id. at 28, ¶ 42. Durren’s starting salary
was $78,000, which was higher than Steels’ salary at the time ($73,080). Id. Durren worked for
the Y for approximately four months and did not receive a salary increase during her time with
the Y. Id. at 29, ¶ 43.
In March 2008, the Y posted another opening for a Senior HR Generalist, with a starting
salary range of $75,000 to $92,000, which again, was higher than Steels was earning at the time.
14
It appears that this raise was actually above the range for “meets expectations” ratings.
Steels disputes that she received a 3.8% salary increase in 2007, but relies on evidence that lacks
foundation and authentication. See Pl. 56.1 Resp., Dkt. 313 at 25, ¶ 37. Steels also disputes that
she received a rating of “meets expectations,” but, again, does not respond with relevant record
evidence. See id. at 20-21, ¶ 30.
18
Id. at 30, ¶ 44. According to Steels, the Y placed this opening “on hold,” and eventually
withdrew it all together after Jones cited it as an example of discrimination in his EEOC charge,
which he filed after his termination. Id. at 30, ¶ 44.
Steels also claims that the Y discriminated against her by failing to promote her, while
promoting other employees in HR. For example, in May 2008, Hite promoted VanDeventer to
the position of HR/OD System Supervisor. Pl. 56.1 Resp., Dkt. 313 at 32, ¶ 47. Along with the
new position, VanDeventer’s salary was increased to $57,800. Id. Steels claims that she was not
aware of this position (though as discussed infra, it is not at all clear why Steels would have been
interested in pursuing this position, which paid substantially less than she was already making).
Id. Similarly, after Hite’s resignation, the Y hired Carolyn Creager, an African American
woman, to act as interim director of HR in September 2008. Id. at 32, ¶ 48. At the time she was
hired, however, Creager had approximately 25 years of HR experience. Id. Finally, Steels alleges
that, in an attempt to remedy past discrimination, the Y gave her a retroactive 1% salary increase
in early October 2008. Id. at 30, ¶ 45. According to Steels, however, this increase was too little
too late, and was “nothing in comparison” to the salary she actually deserved. Id.
2. Telecommuting
Steels alleges that Hite also discriminated against her by refusing to allow her to
telecommute in 2007 and 2008, while allowing Gondek to telecommute from another state. Pl.
56.1 Resp., Dkt. 313 at 33, ¶ 49. It is undisputed, however, that shortly after Hite became Steels’
supervisor in August 2005, she allowed Steels to work from home for an extended period
(possibly as long as one year, though the record is not entirely clear). Id. at 34, ¶ 50. And after
Steels returned from maternity leave in March 2007, Hite allowed her to work from home one
day per week for two months. Id.
19
However, on April 30, 2007, Hite informed Steels that she needed to return to working in
the office full time. Id. at 34, ¶ 51. In comparison, and as explained above, two weeks after
returning from maternity leave, on April 1, 2007, Gondek became a part-time employee, earned
only 20% of her annual salary, and was allowed to work from home one day per week. Id. at 34,
¶ 52. Then in August of the same year, Gondek moved to Philadelphia and began working
remotely. Id. At that time, however, Gondek stopped acting as a Senior HR Generalist, and only
worked on discrete projects. Id.
3. Constructive Discharge
On or about October 9, 2008, Steels submitted a letter of resignation to the Y. Pl. 56.1
Resp., Dkt. 313 at 47, ¶ 67. According to Steels, she resigned because the Y had left her with no
choice but to do so. Id. Steels contends that she was constructively discharged based on Hite’s
treatment of her, the alleged discriminatory performance evaluations and merit increases she
received, VanDeventer’s May 2008 promotion, and Hite’s lack of desire to correct the inequity
in her overall base salary. Id. Moreover, Steels alleges that the Y was not dedicated to solving
her issues or creating an environment in which she could be successful, particularly after she saw
a presentation given to the Y’s board that concluded that minorities were being disadvantaged in
the Y. Id. Ultimately, Steels concluded that she had to leave the Y if she wanted to advance her
career. See Defs. 56.1 Resp., Dkt. 381 at 29, ¶ 52.
Sometime in September 2008, Steels met with Karen Mitrenga, who was the Senior
Director of HR at Wrightwood Capital. Pl. 56.1 Resp., Dkt. 313 at 48, ¶ 70. On or about
September 26, 2008, Mitrenga offered Steels a job at Wrightwood. Id. Mitrenga then sent Steels
a job offer on October 1, 2008, which Steels accepted. Id. Her starting salary at Wrightwood was
$82,500. Id. at 49, ¶ 71. Steels requested a start date of October 27, 2008. Id. at 49, ¶ 70. Steels
20
told Mitrenga that she did not want to start working at Wrightwood for another month so that she
could make sure she was leaving the Y team “in good shape.” Id. at 49, ¶ 71. Steels did not feel,
however, that her move to Wrightwood Capital was a “step up” from her position at the Y,
because her new job entailed less responsibility. Defs. 56.1 Resp., Dkt. 381 at 30, ¶ 54.
4. Protected Activities and Retaliation
Steels alleges that she was retaliated against for engaging in protected activities. Pl. 56.1
Resp., Dkt. 313 at 41, ¶ 56. In particular, Steels claims that she engaged in protected activity
when she wrote a letter on September 21, 2007, to Nicoll (the Y’s CEO), in which she
complained about Hite’s treatment of her. Id. Although the letter did not contain or mention the
words “race,” “color,” or “discrimination,” Steels contends that she was complaining about
discrimination, id., and included words that she thought addressed that issue. Defs. 56.1 Resp.,
Dkt. 381 at 15, ¶ 25. Specifically, the letter complained about “inequities in treatment”
concerning performance management training sessions, performance review assessments, staff
projects, and telecommuting options. Pl. 56.1 Resp., Dkt. 313 at 41, ¶ 57. The letter also noted
that Hite had made “offensive comments, [performed] acts of intimidation…and [demonstrated]
a harassing nature towards some work assignments.” Id. Steels also requested that “measures be
taken to prevent any acts of retaliation against her.” Id. The letter did not, however, mention any
complaints about pay or promotions. Id.
On October 3, 2007, Steels met with Nicoll to discuss the letter. Id. at 42, ¶ 58.
According to Steels, Nicoll spent very little time discussing her complaints during their meeting.
Id. Instead, Nicoll focused on his overall concerns with HR, informed Steels that the Y needed to
reevaluate the HR team, and discussed potential staff reductions. Id. Steels also claims that she
told Nicoll she thought her letter was based on or related to race discrimination. Id.
21
At some point after her meeting with Nicoll, Steels also met with Amy Bateson, the Y’s
Assistant General Counsel, to discuss her letter. Id. at 42, ¶ 59; see also Steels’ Dep., Pl. Appx.,
Dkt. 362, Tab 5 at 590:15-19. Bateson told Steels that the Y was planning an investigation of her
complaint. Pl. 56.1 Resp., Dkt. 313 at 42, ¶ 59. The Y then hired a law firm, Ogletree, Deakins,
Bash, Smoak & Stewart, to conduct an investigation. Id. at 43, ¶ 60. The Y also hired John Behr,
an outside consultant, to serve as a coach and liaison between Steels and Hite to help solve their
communication issues. Id. at 44, ¶ 62. Despite these measures, however, on December 21, 2007,
Steels filed a discrimination charge with the EEOC. Id. at 44, ¶ 63.15 According to Steels, after
she filed her EEOC charge, Behr became aggressive and argumentative with her. Id. at 45, ¶ 64.
Furthermore, after Hite learned about Steels’ EEOC complaint, she made handwritten
notes about Steels. Defs. 56.1 Resp., Dkt. 381 at 15, ¶ 27. Specifically, Hite noted her
“attendance,” “attitude,” that she met with people behind closed doors, and that she “runs” to
Jones with her issues. Id. Hite also wrote that it was “intrig[uing] [that] [Steels had] felt this way
since 8/05,” and described Steels as “insubordinate, subversive, and distrustful.” Id. Steels claims
that the Y retaliated against her for sending the September 2007 letter and filing an EEOC charge
of discrimination by, among other things, failing to promote her, giving her an inadequate
retroactive salary increase in October 2008, failing to adequately complete her performance
reviews and assigning her discriminatorily low ratings and merit increases, and by constructively
discharging her. See, e.g., Pl. 56.1 Resp., Dkt. 313 at 45-46. Steels also contends that Hite’s
failure to assign her completed performance evaluations led to Steels being passed over for the
interim director position. Defs. 56.1 Resp., Dkt. 381 at 26, ¶ 47.
15
Steels amended her EEOC charge on approximately December 28, 2008. Pl. 56.1
Resp., Dkt. 313 at 44, ¶ 63.
22
C. Iona Toles
Plaintiff Iona Toles is an African American woman and, as far as can be discerned from
the record, is currently employed by the Y as a Contact Center Representative. Toles alleges that
the Y discriminated against her on the basis of her race. Specifically, she claims that the Y paid
her less than Caucasian administrative employees, failed to place her in Pay Grade B despite her
many years of experience and service at the Y, and failed to promote her on three different
occasions because she is African American. See Pl. Resp., Dkt. 318 at 1, 6-7.
1. Compensation Claims
Toles began working at the Y’s Chicago office on a temporary basis around 1989 or
1990. Pl. 56.1 Resp., Dkt. 311 at 21, ¶ 33. In 1991, she was hired as a full-time secretary at a
starting salary of $18,000. Id. at 21-22, ¶ 33. Then in 1997, Toles applied for and received a
promotion to Administrative Secretary and Receptionist for the Department of Association
Advancement. See id. at 22, ¶ 34. As a result of the promotion, Toles’ salary increased to
$22,500. Id.
Throughout her time at the Y, Toles avers, she made contributions to the organization for
which she never received recognition. For instance, while Toles was acting as the backup
receptionist in the early 1990’s, she arranged to have a computer placed at the reception desk so
that she could perform secretarial work when time allowed. Defs. 56.1 Resp., Dkt. 378 at 12, ¶
29. In 1997, after Toles had assumed the position of full-time front desk receptionist, she put
together a handbook that explained the procedures for handling routine inquires and directing
calls, so that any temporary worker could cover the front desk in her absence. Id. With the help
of an unidentified coworker, Toles later drafted a proposal for a call center. Id.
23
In 2001, the Y created a “Contact Center” to handle the Y’s calls. Id. at 12, ¶ 29; Pl. 56.1
Resp., Dkt. 311 at 22, ¶ 35. Toles contends that her proposal was the basis, at least in part, for the
creation of the Contact Center. Defs. 56.1 Resp., Dkt. 378 at 12, ¶ 29. Toles then applied for and
received a promotion to the position of Contact Center Analyst in the Internal Support Services
Group. Pl. 56.1 Resp., Dkt. 311 at 22, ¶ 35. With that promotion, Toles’ salary increased to
$30,000. Id. Toles was also required to reapply for her position as the front desk receptionist,
Defs. 56.1 Resp., Dkt. 378 at 2, ¶ 4, and was selected to continue in that position. Id.
The following presents an incomplete record of the performance ratings and merit
increases that Toles received from Rick Snell, a Caucasian male, who took over as the manager
of the Contact Center around May of 2003, Pl. 56.1 Resp., Dkt. 311, at 24, ¶ 38, as recounted in
the parties’ Local Rule 56.1 statement of facts and responses.16 Beginning in fiscal year 2003,
Snell gave Toles an overall performance rating of “meets expectations.” Id. Further, Snell gave
Toles an overall rating of 66.3 in fiscal year 2004.17 Id. at 24, ¶ 39. Neither party has provided
information on the merit increase and amount of compensation that Toles received for these
years.
In September 2005, Toles received a 2.3% merit pay increase, which corresponds to a
“meets expectations” performance rating for that year, bringing her annual salary to $35,208. Id.
at 25, ¶ 40. Toles complained to Snell that the merit increase she received was inadequate. Id. at
26, ¶ 41. In 2006, Snell gave Toles a rating of 80.35 (out of 100) on her performance review. Id.
16
There is no information in the record regarding Toles’ salary or the merit pay increases
she received, if any, for the years 2003 and 2004. Nor is there information that explains the
rating scale employed to evaluate Toles or how it related to the 1-5 scale used to evaluate the
other defendants.
17
As mentioned in the footnote above, there is no information in the record explaining
this performance evaluation scale, or how this scale maps to the scale used to evaluate Jones,
Steels, and Ward. Presumably, Toles received a 66.3 out of a possible 100 total points.
24
at 27, ¶ 42. Toles also received a 2.9% merit pay increase that year, which brought her salary to
$36,240. Id. Toles again complained about this increase and asked whether Snell could use the
department’s budget to provide additional increases to Toles and other employees in the Contact
Center. Id. at 27, ¶ 43. Then in 2007, Toles received a performance rating of “2.3,” Defs. 56.1
Resp., Dkt. 378 at 22, ¶ 53, and a 2.7% merit increase, which brought her salary to $37,224. Pl.
56.1 Resp., Dkt. 311 at 28, ¶ 44. Toles also complained about the adequacy of this increase. Id.
For fiscal year 2008, Snell gave Toles a performance rating of “meets all requirements”18
(or a rating of “2”). Id. at 33, ¶ 52. According to the plaintiff, Toles also received a 2.25% merit
increase this year. See id. at 33-34. However, according to the plaintiff’s statement of additional
facts, Toles was earning the same salary in 2008 as she had in 2007—$37,224. See Defs. 56.1
Resp., Dkt. 378 at 10, ¶ 25. Given this discrepancy, it is unclear whether Toles actually received
a merit pay increase for 2008 or if the record recites an incorrect salary for 2007.
In 2009, Snell gave Toles an overall rating of “meets expectations.” Pl. 56.1 Resp., Dkt.
311 at 34, ¶ 53. Toles also a received a 3.4% merit increase in March of that year, bringing her
salary to $38,480. Id. at 35, ¶ 54. This increase compensated Toles for her performance over the
course of a year and a half and corresponded to a yearly increase of 2.2%. Id.; see also Defs. 56.1
Resp., Dkt. 378 at 20, ¶ 49. For fiscal year 2010, Snell gave Toles an overall performance rating
of “meets expectations,” which included ratings of “below expectations” in three categories of
the review. Pl. 56.1 Resp., Dkt. 311 at 38, ¶ 61. Toles spoke with Angela Williams, who had
recently taken over responsibility for the Contact Center, id. at 38, ¶ 60, about the review and to
18
Although the defendants’ statement of facts describes Toles’ performance rating for
fiscal year 2008 as “meets all requirements,” the Court assumes this corresponds to the “meets
expectations” rating used by the Y.
25
dispute the “below expectations” ratings. Id. Thereafter, Williams set up a meeting between
Toles and Snell to discuss the scores that Toles had received. Id. at 38, ¶ 62.
In the meeting, Toles asked that her performance review reflect the fact that she was out
of the office on medical leave for knee surgery and therapy for four months of the review period,
and that her duties had been modified, subject to doctor’s orders. Id. Due to restrictions
prescribed by her doctor, Toles had to walk away from her desk for 15 minutes of each hour,
which decreased her availability to answer phone calls. Id. at 38-39, ¶ 62. Following the meeting,
Snell recalculated Toles’ metrics based on the medical leave and accommodations she had
received. Id. Specifically, Snell changed the “below expectations” ratings to “meets
expectations,” and kept the overall rating of “meets expectations” the same. Id. at 39, ¶ 63. Toles,
however, believes that Williams directed Snell to change the ratings just to keep her happy. Id.
As a result, Toles’ final performance rating for fiscal year 2010 was “meets expectations” and
she received a 2.25% merit pay increase, which brought her salary to $39,346.21. Id. at 40, ¶ 64.
2. Failure-to-Promote Claims
Toles also alleges that she was denied promotions and that in one particular instance the
Y concocted a plan to remove her from her position at the main reception desk and deny her a
promotion because, as an African American, she did not fit the “right image” for the Y.
Specifically, in March 2008, the Y posted a job opening for a Receptionist/Data Processing
Clerk, stationed at the front desk on the fourteenth floor of the Y’s offices as part of a
“restructuring” of the front desk position to focus more heavily on data entry. Pl. 56.1 Resp.,
Dkt. 311 at 30, ¶ 47; Defs. 56.1 Resp., Dkt 378 at 3, ¶ 5. The fourteenth floor is where visitors to
the Y are greeted, and where Toles had been stationed as a full-time receptionist at the time that
position was “restructured.” According to the Y, this new position required very strong typing,
26
data entry, and software skills, and was classified in Pay Grade B—a step up from Toles’ Pay
Grade A. Pl. 56.1 Resp., Dkt. 311 at 30, ¶ 47.
Toles applied for the position and took a typing test. Id. Toles also interviewed with Snell
and Jensen. Id. Johanna Pistell, who up to that point had been a temporary worker under Jensen,
also applied and took the same typing test. Id. at 31, ¶ 48. Pistell outperformed Toles on the test
and ultimately received the position in May 2008. Id.; Defs. 56.1 Resp., Dkt. 378 at 4, ¶ 8.
However, the parties dispute whether the new position truly required data entry skills and
additional responsibilities, with less of a focus on call center duties. Toles contends that the two
positions were essentially the same. See, e.g., Pl. 56.1 Resp., Dkt. 311 at 31, ¶ 48.
Snell told Toles that she did not receive the promotion because she lacked the necessary
“technical skills,” and because Pistell performed better on the typing test. Defs. 56.1 Resp., Dkt.
378 at 8, ¶ 19. However, Toles remained a Contact Center employee, but acted as Pistell’s
backup—a claim that the Y disputes. Id. at 4, ¶ 9; Pl. Resp., Dkt. 311 at 31-32, ¶ 48.
As a result of the “restructuring” and Toles’ failure to obtain the promotion, her desk was
relocated from the main reception area on the fourteenth floor to the less busy fifteenth floor.
According to Toles, Kent Johnson, the Y’s Chief Operating Officer, stated that Toles did not fit
the “right image” for the Y.19 Defs. 56.1 Resp., Dkt. 378 at 4, ¶ 8; Pl. 56.1 Resp., Dkt. 311 at 2829, ¶ 45. As explained above, Toles believes that this is the actual reason a “new position” was
created—as an excuse to remove her from the main reception area and keep her in Pay Grade A.
Toles testified that she was removed from the front desk and that Jensen and Johnson were
responsible. Pl. 56.1 Resp., Dkt. 311 at 28-29, ¶ 45.
19
At her deposition, Toles averred that there was documentary evidence that Johnson
said she did not fit the right image for the Y. However, that document was never located. See
Toles’ Dep., Pl. App., Dkt. 362, Tab 6 at 185:10-189:24.
27
On another occasion in 2010, the Y posted a position for a Contact Center Team lead. Pl.
56.1 Resp., Dkt. 311 at 35, ¶ 55. According to Toles, four internal candidates, all African
American women, applied for the position: Toles, Sylvia Purnell, Nancy Upke, and Nicole
Bradley. Id. at 36, ¶ 55. However, none of the African American employees received the
promotion. Id. Toles contends, and the Y disputes, that after a Caucasian man declined the
position the Y decided not to fill it and withdrew the opening. Id.
That same year, the Y also posted two positions for Conference Center Coordinators. Pl.
Resp., Dkt. 311 at 36, ¶ 56. According to Toles, these positions were stationed at the reception
desk on the Y’s newly renovated floor of conference rooms. Defs. 56.1 Resp., Dkt. 378 at 5, ¶
11. The job posting stated that the position required experience in conference and event planning,
in addition to computer proficiency and “highly refined customer service and interpersonal
communication skills.” Id. Further, the job description required applicants to have the “ability to
perform cost analysis and projections, proficiency in Microsoft Office, excellent computer skills,
and experience in webinar and equipment expectations.” Pl. 56.1 Resp., Dkt. 311 at 36, ¶ 56.
Toles contends that she had the required computer skills and could have learned the necessary
software programs, had she been given the opportunity. Id.
However, Jim Mellor, the Director of Finance, promoted Nicole Bradley, an African
American woman, out of the Contact Center, and hired Richard Marsoun, a Caucasian man, to
fill those positions. Id. at 36, ¶ 56. According to the Y, Marsoun had prior Conference Center
Coordinator experience at a local YMCA. Id. Bradley and Marsoun were given a starting salary
of $41,300 and placed in Pay Grade C. Defs. 56.1 Resp., Dkt. 378 at 12, ¶ 28. Toles, however,
remained in Pay Grade A, as she had throughout her time at the Y. Id. Toles also contends that
28
she was asked to serve as a backup conference center coordinator, but the Y disputes this claim.
Id. at 6, ¶ 14.
D. Kavon Ward
In September of 2008, Plaintiff Kavon Ward, an African American woman, was hired as
the Y’s “Public Policy Manager” at the Y’s Government Relations Office in Washington, D.C.
Pl. 56.1 Resp., Dkt. 310 at 10-12, ¶¶ 16, 20. According to the defendants, Ward was hired based
on her experience with, and passion for, the Y’s programs—almost all of which she participated
in at the Harlem YMCA in her youth. See id. at 12, ¶ 19. Nevertheless, shortly after she was
hired, Ward’s professional relationship with the D.C. Y began to deteriorate. Indeed, according
to the record before the Court, Ward’s time at the Y’s D.C. office was tense and marked by
confrontations with her co-workers and supervisors, culminating in her termination. Ward
alleges that her termination was racially discriminatory and retaliatory. She further contends that
she received discriminatory compensation and performance reviews.
According to Ward, the atmosphere in the Y’s D.C. office generally, and in the public
policy department particularly, was loud and aggressive. The public policy team was led by
Audrey Haynes, a Caucasian woman and the Y’s Senior Vice President and Chief Government
Affairs Officer, who reported directly to CEO Nicoll. Defs. 56.1 Resp., Dkt. 372 at 3, ¶ 3.
Haynes was also a member of the Y’s “Leadership Team,” a group of senior executives to whom
all employees at the Y reported. Id. Richard Bland, a Caucasian man and the Y’s Director of
Federal Government Relations, and Katie Adamson, a Caucasian woman and the Y’s Director of
Health Partnerships and Policy, were also lobbyists in the D.C. office who reported to Haynes.
Id. at 3, ¶ 4; Pl. 56.1 Resp., Dkt. 310 at 11, 13, ¶¶ 18, 21.
29
Employees in the D.C. office described Haynes as a “demanding” boss with “high
expectations.” Defs. 56.1 Resp., Dkt. 372 at 3, ¶ 5. Bland also testified that Haynes used a raised
voice at times, has been “harsh to almost everybody in the office,” and once slammed a door in
his face. Id. Another employee described Haynes as having a “very loud commanding presence”
and that the public policy side of the D.C. office was generally loud. Id. Further, a former
employee, Torrence Montgomery, recounted that Haynes had slammed books, doors, and pens in
her interactions with other employees, and that nearly everyone in the office had had an
encounter with Haynes in which she yelled or vented. Id. at 4, ¶ 6.
In September 2008, Ward applied for the position of Public Policy Manager. Pl. 56.1
Resp., Dkt. 310 at 10, ¶ 16. The Public Policy Manager represented the Y on children, youth, and
family issues and also lobbied on behalf of the “Y movement” by promoting its legislative
priorities and agenda on Capitol Hill. Id. at 11, ¶ 17. The job description the Y posted for the
Public Policy Manager position states a salary range of $70,000 to $85,000 and a requirement of
“5-7 years [of] work experience on Capitol Hill.” Id. (citing Defs. Appendix, Dkt. 262, Tab 27 at
1). Ward did not have the required work experience, but disputes that the experience was truly
required by the Y as a condition of employment. See id. at 11. That said, when she applied, Ward
did have some experience, having served as a fellow at the Congressional Black Caucus
Foundation in 2007. Defs. 56.1 Resp., Dkt. 372 at 2, ¶ 2; see also Ward’s Dep., Pl. App., Dkt.
362, Tab 7 at 239:11-4.
After applying, Ward interviewed with Haynes and Bland. Pl. 56.1 Resp., Dkt. 310 at 1112, ¶ 18. During that interview, Bland noted that while Ward did not have the requisite 5 to 7
years of work experience, he liked the fact that she had experience with the Harlem YMCA. Id.
at 12, ¶ 19. Bland further noted that Ward spoke with passion about her experience at the Harlem
30
YMCA and its programs and believed that passion would make her an excellent advocate for the
Y. Id. The defendants contend that they hired Ward on that basis, despite her lack of experience.
Id. Ward, however, contends that she was chosen because she was the best applicant from a pool
of 50 candidates. Id. at 12.
Ward was hired on September 16, 2008, at a starting salary of $70,000—the lowest end
of the salary range for the position. Id. at 12, ¶ 20. The defendants contend that Ward stated that
her desired salary was $70,000 on her application. Id. at 10, ¶ 16. Ward, however, contends that
she requested a starting salary of $80,000, but was told that the Y would only pay her $70,000.
Id. at 10. Ward avers that the only reason she stated $70,000 as her desired salary was because
she did not fill out the application until after she was informed she would be hired and that the Y
would only pay her $70,000 as a starting salary. Id. at 10-11. It should also be noted that,
pursuant to her offer letter, Ward was not eligible for a merit pay raise until 2010. Id. at 12, 20.
Once hired, Ward was the only African American employee on the public policy team,
which included Haynes, Bland, and Adamson. Defs. 56.1 Resp., Dkt. 372 at 2, ¶ 2. She reported
directly to Bland, who in turn reported to Haynes. Pl. 56.1 Resp., Dkt 310 at 12-13, ¶ 20. Ward
also contends that at times she took direction directly from Haynes. Id. at 13.
For the period between January and June 2009, Ward received positive feedback from
Bland, and was scored as “exceeding expectations” in six of nine subject matters covered by her
review. Defs. 56.1 Resp., Dkt. 372 at 8, ¶ 15. In the manager comment section of the review,
Bland even noted that Ward “should be commended for working on developing the full range of
skills required in her position in her first 10 months on the job.” Id. However, based on the
record, it does not appear that this review truly reflected the relationship between Ward and the
other lobbyists in the D.C. office during this period of time.
31
Specifically, in January of 2009, and what would be the first of a series of clashes
between Ward on one hand, and Bland and Haynes on the other, Bland attempted to coach Ward
concerning her tone around the office. Id. at 4, ¶ 8; Pl. 56.1 Resp., Dkt. 310 at 13, ¶ 22. During
this conversation, Bland commented that Ward should watch her tone, particularly around
Haynes, because as an educated African American woman, she could be perceived as strident
and aggressive (hereafter the “January 2009 Comment”). Pl. 56.1 Resp., Dkt. 310 at 13-14, ¶¶
22-23; Defs. 56.1 Resp., Dkt. 372 at 4, ¶ 8. Ward took the comment as Bland’s “understanding
of what…[Haynes] thought of [her].” Defs. 56.1 Resp., Dkt. 372 at 4, ¶ 8. Ward also contends
that Caucasian lobbyists spoke aggressively to each other and that it was unfair to single her out
for criticism based on her race. Id. According to the plaintiff, Bland then apologized for making
the comment and asked Ward not to report him or tell anyone what he had said. Id. at 5, ¶ 8.
Despite Bland’s purported request not to repeat what he had said, Ward reported the
January 2009 Comment to HR Director Jackie Gordon (Hite had left the Y in October 2008),
who worked in the Chicago office, stating that she thought the comment may have originated
with Haynes or that Bland was repeating a sentiment that Haynes had expressed. Id. at 5, ¶ 9; Pl.
56.1 Resp., Dkt. 310 at 15, ¶ 24. In particular, Ward believed the comment may have originated
with Haynes because, as Ward testified, Haynes cut her off during meetings, gave her directives
that contradicted Bland’s, and on occasion assumed that Ward was not doing her job or that she
was “crazy.” Defs. 56.1 Resp., Dkt. 372 at 6, ¶ 10; Pl. 56.1 Resp., Dkt. 310 at 16, ¶ 25.
Pursuant to Gordon’s advice, Ward emailed Haynes on June 22, 2009, to schedule a
meeting to discuss communication issues, as well as Haynes’ professional expectations. Defs.
56.1 Resp., Dkt. 372 at 6, ¶ 11. If the meeting went well, Ward also planned to discuss the
January 2009 Comment. Id. On June 23, 2009, Haynes told Ward, via email, that if she wanted
32
to meet outside the office, they could do so on July 1, 2009. Pl. 56.1 Resp., Dkt. 310 at 17-18, ¶
29.
At the meeting on July 1, Ward expressed her concerns to Haynes. Id. at 18. According to
Ward, however, Haynes denied having any communication issues and stated that any problem
must lie with Ward herself. Defs. 56.1 Resp., Dkt. 372 at 6, ¶ 11. After the meeting, Ward
reported the outcome of the meeting to Gordon, which Ward felt was disappointing. Id. at 6, ¶
11; Pl. 56.1 Resp., Dkt. 310 at 19, ¶ 31. Gordon offered to speak with Haynes, Bland, or both of
them, but Ward told Gordon she was not sure if she wanted Gordon to intervene at that time. Pl.
56.1 Resp., Dkt. 310 at 19, ¶ 31. Gordon then informed Amy Bateson, the Y’s Associate General
Counsel, Angela Williams, the Y’s General Counsel, and CEO Nicoll about Ward’s concerns
about the January 2009 Comment and the way in which Haynes conducted public policy
meetings. Id.
The professional relationship between Ward and Haynes hit another bump on July 10,
2009. On that day, Haynes sent Ward an email asking her to skip a congressional hearing in
order to take part in a conference call with the White House. Defs. 56.1 Resp., Dkt. 372 at 6, ¶
12; Pl. 56.1 Resp., Dkt. 310 at 20, ¶ 33. In that email, Haynes also added that “going to hearings
every day for the sake of going is not necessarily the best use of time but this is between you and
[Bland].” Defs. 56.1 Resp., Dkt. 372 at 6, ¶ 12; Pl. 56.1 Resp., Dkt. 310 at 20, ¶ 33. Ward
replied, writing that she was “not sure where that comment [came] from perhaps one of you
[Bland or Haynes] can enlighten [her].” Defs. 56.1 Resp., Dkt. 372 at 6, ¶ 12. After reading the
email, Bland went into Ward’s office to tell her that her response was inappropriate and
disrespectful. Id. Hearing raised voices, Haynes joined them in Ward’s office. Id.
33
Haynes and Bland admonished Ward that her tone and communication style were
disrespectful. Id. at 7, ¶ 13. Ward responded that she thought it was unfair that Caucasian
employees could “slam doors at one another, hang up phones on one another, scream back and
forth at one another, and then because [Ward] speak[s] with passion and conviction [she is] told
that [she] should watch [her] tone because unfortunately as an educated black woman [she] can
come across as aggressive.” Id. Ward also told Haynes about Bland’s January 2009 Comment.
Pl. 56.1 Resp., Dkt. 310 at 21-22, ¶ 35. Haynes responded that Ward should not make the issue
“about race.” Id.
At some point during this confrontation, Ward looked away from Haynes and Bland and
focused on her computer screen. Id. at 7, ¶ 14. Haynes responded by moving the computer
screen, reaching across Ward’s desk, and then grabbing Ward’s face and turning it back so that
Ward was looking directly at her. Id. Ward later reported this incident (“July 10 Meeting”) to
Gordon. Id.
A few months later, in October 2009, Gordon told Haynes that Ward had reported the
January 2009 Comment. Id. at 8, ¶ 16; Pl. 56.1 Resp., Dkt. 310 at 19, ¶ 32. Upon returning to the
D.C. office, Haynes began documenting criticisms of Ward in a log, writing that “I [Haynes]
began keeping this log in mid-October [2009] after hearing that [Ward] had made several calls to
our HR department, consulted other Y colleagues and word had gotten back to our CEO that she
was unhappy with her treatment for lack of a better characterization.” Defs. 56.1 Resp., Dkt. 372
at 8-9, ¶ 17.
More problems arose in January 2010 when Bland gave Ward her second performance
review covering the period from July to December 2009. Id. at 9, ¶ 19. Defendants contend that
this was Ward’s year-end review for fiscal year 2009, but the plaintiff avers that this was not a
34
“year-end” review, but only covered the specified time period. Pl. 56.1 Resp., Dkt. 310 at 25,
¶ 39. Ward completed her self-assessment for that review using the scores she had received from
Bland for the previous period, January to July 2009. Defs. 56.1 Resp., Dkt. 372 at 9, ¶ 19.
However, Bland told Ward that he needed to lower her scores from the previous review because
CEO Nicoll was requiring supervisors to give out fewer 3’s (“exceeds expectations”) and 4’s
(“far exceeds expectations”). Id. Ward did not believe that her performance warranted lower
scores, or that CEO Nicoll had directed supervisors to give fewer “exceeds” and “far exceeds”
ratings. Id. Afraid that Haynes and Bland were trying to “push her out” of the Y, however, Ward
decided to sign the less-favorable performance review. Id.
Thereafter, Bland submitted the review to Haynes for her approval. Pl. 56.1 Resp., Dkt.
310 at 26, ¶ 41. Haynes, however, did not approve the review and attempted to lower Ward’s
scores even further so that she would not receive higher than a 2 (“meets expectations”) in all
categories. Id. at 27, ¶ 41; Defs. 56.1 Resp., Dkt. 372 at 10, ¶ 20. According to the defendants,
Haynes told Bland that the lowered scores that Ward had signed off on did not accurately reflect
her performance. Pl. 56.1 Resp., Dkt. 310 at 26, ¶ 41.
Around February 1, 2010, Bland presented the modified review with even lower
performance scores to Ward for her signature, again explaining that CEO Nicoll wanted more
rigorous assessments of performance before employees received a rating higher than 2, or a
“meets expectations” rating. Id. at 27, ¶ 42. Ward, however, refused to sign the modified review.
Id. Ward then complained to Gordon, explaining that Bland had lowered her scores from her
previous review, and that Haynes had lowered her scores even further. Id. at 28; Defs. 56.1
Resp., Dkt. 372 at 10, ¶ 20. Ward contends that the lowered scores were discriminatory and
35
given in retaliation for her prior complaints of racial discrimination. Pl. 56.1 Resp., Dkt. 310 at
¶¶ 27, 41.
Because Bland did not receive Haynes’ approval for the review Ward signed off on in
January 2010, Gordon instructed Bland and Haynes to return the scores to what they had been
prior to Haynes lowering them. Id. at 28, ¶ 43. Around February 3, 2010, Bland then presented
Ward with a revised review which contained the scores that Ward originally signed off on. Id. at
28, ¶ 44. However, that review contained comments that the original review did not, which,
according to Ward, indicated that she was not performing her job adequately. Id. at 28-29. The
defendants contend that the comments were left in by mistake, were subsequently deleted, and
that the final review was identical to the original version that Ward signed in January. Id. at 2829, ¶ 44. Ward contends that the critical comments were not left in as a mistake, but with the
expectations that Ward would sign the review without actually reading them. Id. at 29.
On February 3, 2010, Bland also began keeping a log titled “Memorandum to File Re:
Kavon Ward Substandard Performance.” Defs. 56.1 Resp., Dkt. 372 at 11, ¶ 23. Around this
time, Gordon flew to D.C. to meet with Haynes, Bland, and Ward to discuss the 2009
performance review and other issues. Pl. 56.1 Resp., Dkt. 310 at 30, ¶ 45. Gordon spent the day
in D.C. and met with each employee individually and as a group. Id. Gordon offered to hire a
career coach for Ward and assigned her a mentor. Id. Ward complained that Gordon had not
offered to hire a career coach for either Haynes or Bland. Id. at 30, ¶ 45; Defs. 56.1 Resp., Dkt.
372 at 11, ¶ 22. In response to Ward’s complaint, Gordon recommended coaching for Haynes
and Bland as well. Defs. 56.1 Resp., Dkt. 372 at 11, ¶ 22.
On April 8, 2010, Bland emailed Haynes a copy of the notes he had been keeping on
Ward. Id. at 12, ¶ 24. Haynes redlined the notes and responded that “[t]his is about the fourth I
36
have of these, either on Performance or Attendance.” Id. Haynes then suggested that Bland
consult with Monica Vinluan, who was experiencing “challenges” with Sam Becknell, another
African American employee. Id. According to Haynes, Vinluan had purportedly had success
dealing with Becknell by placing him on a 90-day improvement plan. Id. Vinluan later fired
Becknell. Id.
Tensions between Ward and Haynes hit another high (or, low) point on April 12, 2010.
The trouble began when Ward responded to an email sent to the public policy team. In her
response, Ward indicated that she had been forwarding the team’s “Monday morning memos” to
the Youth and Family Team, which was headed by Barbara Roth. Pl. 56.1 Resp., Dkt. 310 at 32,
¶ 47. Haynes replied to Ward, indicating that Ward should have received permission from the
public policy team before forwarding the public policy team’s memos. Id. Ward was upset with
Haynes’ response, and avers that Haynes would not have “called out” Caucasian employees,
such as Bland and Adamson, in the same manner. Id. at 33.
That same day, tensions boiled over when Haynes, Bland, Ward, and other team
members held their weekly staff meeting (“April 12 staff meeting”). Id. at 33, ¶ 48. During the
meeting, the defendants contend, and Ward disputes, that Ward turned her chair toward Haynes
and stared at her for the duration of the meeting. Id. Haynes allegedly slammed a book on a table
and told Ward that she did not appreciate the way in which Ward was looking at her. Id.
According to Ward, Haynes yelled and berated her. Defs. 56.1 Resp., Dkt. 372 at 12, ¶ 25.
Ward called into work sick the next day, April 13, 2010. Id. at 13, ¶ 26; Pl. 56.1 Resp.,
Dkt. 310 at 33, ¶ 49. Ward also reported Haynes’ “outburst” to Gordon. Defs. 56.1 Resp., Dkt.
372 at 13, ¶ 26. Specifically, Ward lodged a written complaint alleging that Haynes was
“harassing” her. Id. Gordon testified that she considered Haynes’ conduct during the April 12
37
staff meeting “inappropriate” and “serious,” id. at 13, ¶ 27, and responded by scheduling a
coaching session so that a third party could talk to Haynes and Bland to “stop the madness.” Id.
at 13, ¶ 27.
Ward returned to work the next day, on April 14, 2010. Id. at 14, ¶ 28. According to
Ward, Bland was upset that she had missed work the previous day and demanded to see a
doctor’s note. Id. Ward explained that she needed to take a day due to the incident that occurred
at the April 12 staff meeting. Id. Ward contends that Bland then told her that she should be
“careful” because when she gets upset or looks at Haynes and Bland a certain way, “there could
be consequences such as what occurred on [April 12].” Id. Ward then emailed Gordon again,
complaining that Bland had threatened her to “be careful” and that Haynes and Bland were
retaliating against her, and seeking permission to present her complaint directly to CEO Nicoll.
Id. at 14, ¶ 29; Pl. 56.1 Resp., Dkt. 310 at 34, ¶ 50. Gordon then called Haynes to discuss the
incident. Pl. 56.1 Resp., Dkt. 310 at 34-35, ¶ 50.
Gordon forwarded Ward’s complaint to the Y’s legal department. Defs. 56.1 Resp., Dkt.
372 at 14, ¶ 30. Gordon told Associate General Counsel Karyn Boston about her meetings and
interactions with Ward, Haynes, and Bland up to that point. Pl. 56.1 Resp., Dkt. 310 at 35, ¶ 51.
After she learned about the April 12 staff meeting incident, Boston started an investigation. Id. at
35, ¶ 51. Angela Williams, the Y’s General Counsel, called Haynes to advise her that Ward had
filed a complaint against her, and that the legal department would be investigating. Defs. 56.1
Resp., Dkt. 372 at 14, ¶ 30. Williams and Haynes were friends and both were senior vice
presidents who served on the Y’s Leadership Team. Id.
On April 19, 2010, Boston traveled from Chicago to the Y’s D.C. office to conduct her
investigation. Pl. 56.1 Resp., Dkt. 310 at 35, ¶ 52. Boston interviewed Ward, Adamson, Bland,
38
and Haynes, among other Y employees. Id. at 35, ¶ 52; Defs. 56.1 Resp., Dkt. 372 at 15, ¶ 31.
Bland told Boston that he had worked with Ward to help guide her, but that Ward’s tone had
been inappropriate from the start and that she had been openly hostile during meetings. Pl. 56.1
Resp., Dkt. 310 at 36, ¶ 53. Bland also stated that he was fearful of Ward’s anger toward Haynes
and that he did not feel safe with Ward in the office. Id.
Adamson told Boston that Ward had yelled at her once, but for reasons that were
justified, and that Ward “sighs, disengages, or crosses her arms when she is mad.” Defs. 56.1
Resp., Dkt. 372 at 15, ¶ 33. Adamson also told Boston that, on an earlier occasion, Ward had told
Adamson that she had beat up one of her high school teachers in the past, and that, Ward wanted
to beat up Haynes in the same manner. Pl. 56.1 Resp., Dkt. 310 at 37, ¶ 55. Like Bland,
Adamson also stated that she wanted Ward removed from the office. Defs. 56.1 Resp., Dkt. 372
at 15, ¶ 33.
Haynes told Boston that she felt Ward’s behavior during the April 12 staff meeting was
disrespectful and abusive. Pl. 56.1 Resp., Dkt. 310 at 37, ¶ 54. However, Boston did not ask
Haynes about whether she had slammed a book during the staff meeting. Defs. 56.1 Resp., Dkt.
372 at 15, ¶ 32. Montgomery confirmed that Haynes had slammed the book, id., but Bland
denied that it happened. Id.
Ward later traveled to Chicago to meet with Boston and Gordon about the investigation.
Pl. 56.1 Resp., Dkt. 310 at 38, ¶ 57. Some details of the meeting are disputed, but in general
Ward contends that both Boston and Gordon told her that Haynes had been found “guilty of
unethical behavior.” Id. Further, despite Gordon previously suggesting that Ward could work
from home, Ward was informed that this was no longer an option. Id. Instead, arrangements were
made for Ward to work four days per week at the local metropolitan D.C. YMCA, and one day
39
per week in the Government Relations and Policy office, where Haynes, Bland, and Adamson
worked. Id.
Ward contends that she abided by these arrangements, even though she felt the outcome
of the investigation was unfair. Defs. 56.1 Resp., Dkt. 372 at 16, ¶ 36. In particular, Ward was
upset that Haynes was never disciplined, or, as Haynes claims, even told the outcome of the
investigation. Id.
Starting in May 2010, Ward worked from the metropolitan YMCA until the end of her
time with the Y. During this period, a final incident occurred which ultimately led to Ward’s
termination from the organization. While the specifics of the incident are disputed, the parties
agree that on June 10, 2010, Adamson attended a Healthy Communities Initiative meeting and
provided an update on the Promise Neighborhoods Initiative—a program for which Ward was
responsible—without Ward in attendance. Id. at 17, ¶ 37; Pl. 56.1 Resp., Dkt. 310 at 41, ¶ 61.
After learning that Adamson had “reported out” on an area within her area of responsibility,
Ward emailed Adamson to find out if Haynes had asked Adamson to “lead up” the issue. Pl. 56.1
Resp., Dkt. 310 at 42, ¶ 63. The next day, June 11, 2010, Adamson responded to Ward’s email
and copied Bland, Haynes, and Monica Vinluan, who worked on the Healthy Community
Projects. Id. at 42, ¶ 63; Defs. 56.1 Resp., Dkt. 372 at 17, ¶ 38. In the email, Adamson wrote that
Ward should be clearer about “when and how to reach [her at the metropolitan YMCA] and what
kind of thing is important enough to take [her] away from the work [she was] doing at the
[metropolitan YMCA].” Defs. 56.1 Resp., Dkt. 372 at 17, ¶ 38.
According to Ward, she called Adamson after receiving the email, but Adamson yelled at
her and accused her of being aggressive. Id. at 17-18, ¶ 38. Ward then sent Adamson a formal
email response stating “we both know why you felt the need” to respond in the way you did. Id.
40
at 18, ¶ 39. Within minutes, Adamson replied, “[a]nd I am sorry you felt the need to call me and
scream at me, saying ‘Fuck You’ to me and the whole team and frankly be so angry that I needed
to hang up.” Id. Ward responded, “[a]nd Katie [Adamson] I’m sorry you feel the need to tell
stories, God, you and I all know that didn’t come out of my mouth but I’m not surprised you
would try to vilify my character and portray me in such a negative light.” Id. at 18, ¶ 40. As
noted above, Bland and Haynes were copied on each of these emails and responses. Id. Ward
denies telling Adamson “fuck you and fuck the whole team” when they spoke on the phone. Pl.
Resp., Dkt. 310 at 43, ¶ 64.
Shortly thereafter, Adamson called Haynes to report that Ward had allegedly said “fuck
you and fuck the whole team” on their phone conversation. Id. at 43, ¶ 65. Haynes advised
Adamson to contact Gordon in HR and Williams in the General Counsel’s office. Id. Adamson
called Williams, reported her allegations, and reiterated her fear of Ward. Defs. Resp., Dkt. 372
at 18, ¶ 41. Bland also participated on that call. Id.
Williams had already been receiving updates from Gordon regarding Ward’s
discrimination and retaliation complaints. Id. at 18-19, ¶ 41. Williams instructed Adamson to
forward her the email chain she had with Ward, and that Adamson “need[ed] to put in there that
[she felt] scared.” Id. Bland further testified that Adamson felt her “life was threatened.” Id. The
defendants also contend that Adamson spoke with Gordon about her fear of Ward. Pl. 56.1
Resp., Dkt. 310 at 45, ¶ 67. Adamson told Gordon about her earlier conversation with Ward, in
which Ward allegedly stated that she beat up one of her teachers and that she wanted to beat up
Haynes in the same manner. Id.
On June 17, 2010, Gordon and Williams met with Ward to terminate her employment. Id.
at 46, ¶ 69. Williams testified that Ward was terminated because the Y “has zero tolerance for
41
workplace violence,” citing Ward’s “language” to Adamson and Haynes, as well as Bland’s
“concerns” about Ward’s “language and conduct.” Defs. 56.1 Resp., Dkt. 372 at 20, ¶ 45. The
parties dispute whether Haynes and Bland were involved in the decision to terminate Ward. The
defendants contend that only Williams and Gordon were involved in the decision to terminate
Ward, with Williams as the ultimate decisionmaker. Id. at 20-21. Ward claims that Williams,
Gordon, Bland, and Haynes were all involved in the termination decision. Id. at 20, ¶ 45.
After Ward was terminated, Montgomery testified that Haynes came out of her office and
performed “a cheerleading thing that she does” and “talked about how much the office felt so
much lighter.” Id. at 21, ¶ 46. On January 4, 2011, Haynes hired Ivana Alexander, an African
American woman, as a Senior Public Policy Manager with a salary of $98,000 to replace Ward.
Pl. 56.1 Resp., Dkt. 310 at 48, ¶ 71. Prior to being hired by the Y, Alexander worked as a Deputy
Chief of Staff and Legislative Director for a U.S. Representative for two years and as a
legislative assistant in the Office of the Majority Leader for approximately three years. Id.
II.
ANALYSIS
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Porter v. City
of Chi., 700 F.3d 944, 950 (7th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). “To survive summary
judgment, the nonmovant must produce sufficient admissible evidence, taken in the light most
favorable to it, to return a jury verdict in its favor.” Fleishman v. Cont’l Cas. Co., 698 F.3d 598,
603 (7th Cir. 2012) (citing Berry v. Chi. Transit Auth., 618 F.3d 688, 696 (7th Cir. 2010)).
Disputed issues of material fact must be resolved in the nonmovant’s favor. See Smith v. Bray,
681 F.3d 888, 892 (7th Cir. 2012) (citation omitted). However, the Court “will not draw
inferences that are supported by only speculation or conjecture,” Collins v. Am. Red Cross, 715
42
F.3d 994, 997 (7th Cir. 2013) (citing Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir.
2012)), and Rule 56 “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” Scott v. Trump Ind., Inc., 337 F.3d
939, 945 (7th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
A. Legal Standards
The plaintiffs have brought their claims of racial discrimination and retaliation under
Title VII, § 1981, the IHRA, and the DCHRA. The parties agree that the same legal standards
apply under each of these statutes. See, e.g. Humphries v. CBOCS W., Inc., 474 F.3d 387, 403-04
(7th Cir. 2007) (same prima facie requirements applied to discrimination and retaliation claims
brought under Title VII and § 1981); Paul v. Theda Med. Ctr., Inc., 465 F.3d 790, 794 (7th Cir.
2006) (“The framework governing liability under Title VII also applies to [§] 1981 claims.”
(citing Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998))); Young v.
Covington & Burling LLP, 846 F. Supp. 2d 141, 153 (D.D.C. 2012) (“In addressing employment
discrimination claims under [the DCHRA and § 1981], courts look to the jurisprudence
surrounding Title VII.” (citations omitted)); Wallace v. Eckert, Seamans, Cherin & Mellott, LLC,
57 A.3d 943, 956 (D.C. 2012) (“In considering discrimination claims under the [DCHRA], this
court uses the three-part, burden-shifting test…for Title VII cases”); Budzileni v. Dep’t of
Human Rights, 392 Ill. App. 3d 422, 443-44 (1st Dist. 2009) (Illinois courts “have adopted the
three-part test employed by the federal courts in actions for employment discrimination brought
under Title VII.” (citing Zaderaka v. Ill. Human Rights Comm’n, 131 Ill.2d 172, 178-79
(1989))); Bd. of Trs. of S. Ill. Univ. v. Knight, 163 Ill. App. 3d 289, 294 (5th Dist. 1987) (“In
analyzing claims of discrimination under the [IHRA], Illinois courts have looked to the standards
applicable to federal claims brought under Title VII.”). Accordingly, the Court analyzes
43
plaintiffs’ allegations under the legal standards applicable to Title VII discrimination and
retaliation claims.
The operative complaint in this case is the plaintiffs’ Fourth Amended Complaint
(hereinafter, simply “Complaint”). The Complaint sets forth in twelve “counts” a multitude of
distinct legal “claims” brought by different combinations of the plaintiffs against different
combinations of the defendants. Table 1 attached to this opinion summarizes these “counts” and
“claims.” The Court has already declined to certify the plaintiffs’ putative class claims (Dkt.
454); this opinion addresses only their individual claims. To the extent that the Complaint
suggests that each “count” sets forth a separate “claim” as to each plaintiff, it would be in error.
A “claim for relief,” Fed. R. Civ. P. 54(b), “seeks redress of a distinct wrong.” NAACP v.
American Family Mut. Ins. Co., 978 F.2d 287, 291 (7th Cir. 1992). Many of what the plaintiffs
assert are distinct claims that are more accurately characterized as distinct legal theories
supporting a smaller set of legal claims. “Two legal theories sufficiently distinct that they call for
proof of substantially different facts may be separate ‘claims,’” but “[o]ne set of facts producing
one injury creates one claim for relief, no matter how many laws the deeds violate.” Id. at 292.
Thus, there are fewer than the 30-odd “claims” that the Complaint purports to assert.20
Two other matters can be addressed before reaching the merits of the plaintiffs’ claims
against the Y and will simplify that discussion. First, defendant Hite cannot be liable to any of
20
Distinguishing between “claims,” “counts,” and theories is not a semantic exercise. As
the Seventh Circuit explained in NAACP, it has significant implications for appellate jurisdiction
in the event a party seeks to appeal a judgment on fewer than all the claims asserted pursuant to
Rule 54(b). The defendants’ motions for summary judgment present the possibility of a Rule
54(b) motion, but more immediately they require an assessment of which of the plaintiffs’
claims, or portions of such claims (Rule 56 permits motions for summary judgment on all claims,
some claims, or “parts” of claims) are presently at issue. In the event either party seeks to appeal
the Court’s ruling pursuant to Rule 54(b), it will be required to establish that what is being
appealed is, in fact, a “claim” within the meaning of that rule, and that no part of that claim
remains to be adjudicated.
44
the plaintiffs under Title VII (or the IHRA or DCHRA) because Title VII applies only to the
conduct of employers, not individuals. See Passananti v. Cook Cnty., 689 F.3d 655, 662 n.4 (7th
Cir. 2012); Smith v. Bray, 681 F.3d 888, 896 n.2 (7th Cir. 2012). By contrast, individuals may be
liable under § 1981. Bray, 681 F.3d at 896 n.2. For that reason, the plaintiffs have asserted only
their claims under § 1981 against defendant Hite. Further, plaintiffs Toles and Ward purport only
to assert a pattern-and-practice claim against defendant Hite; they disavow any intention of
asserting any claims that Hite discriminated against them directly. With respect to Ward,
however, the defendants point out that Hite’s employment with the Y ended just two weeks after
Ward’s employment began and that Ward makes no allegations against Hite in the Complaint.
Ward responds that she is asserting a pattern-and-practice claim against Hite because of “Hite’s
involvement” in putting into practice the policies that impacted Ward. She cites no authority,
however, for the proposition that an individual can be responsible for a company’s policies and
actions after that individual is no longer an employee, and the Court is aware of none.
Accordingly, the Court agrees that summary judgment in favor of defendant Hite on any claim
asserted by Ward is appropriate.
Second, the defendants’ motions for summary judgment purport to seek dismissal of, and
judgment on, the Complaint “in its entirety.” As the Y effectively concedes, however, the
defendants have not presented any argument for judgment in favor of the Y as to the disparate
impact (unintentional discrimination) and pattern-and-practice claims of plaintiffs. See Reply,
Dkt. 380 at 14 n.10. Accordingly, to the extent that the defendants’ motion sought summary
judgment on those claims, the motions are denied. Contrary to the implication suggested in the
plaintiffs’ briefs, however, that does not mean that the defendants have forfeited any subsequent
argument that the evidence does not warrant judgment in their favor with respect to those claims.
45
B. Standards of Proof for Intentional Discrimination Claims
“Generally speaking, there are two ways of proving [] a claim [of intentional
discrimination]: the ‘direct’ method of proof and the ‘indirect’ method of proof.” Collins, 715
F.3d at 999 (citing Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 509 (7th Cir. 2012); but
see also Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J. concurring) (arguing
that the direct/indirect distinction is unnecessarily complicated and that “the time has come to
collapse all these tests into one”). To prevail on a motion for summary judgment on a disparate
treatment claim under the “direct method” of proof, the plaintiffs must show that they suffered a
materially adverse employment action, see Nichols v. S. Ill. University-Edwardsville, 510 F.3d
772, 779 (7th Cir. 2007) (citations omitted), motivated by the employer’s racial discrimination.
See Coleman, 667 F.3d at 845. The plaintiffs may offer either direct or circumstantial evidence
that both “point[s] directly to a discriminatory reason for the employer’s action,” Dass v. Chi.
Bd. of Educ., 675 F.3d 1060, 1071 (7th Cir. 2012) (citing Adams v. Wal-Mart Stores, Inc., 324
F.3d 935, 939 (7th Cir. 2003)), and is “directly related to the employment decision.” Id. (citing
Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d 592, 602 (7th Cir. 2003)).
Direct evidence typically consists of an “outright admission by the decisionmaker that the
challenged action was undertaken because of the [plaintiff’s race].” Id. (citing Davis v. Con-Way
Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir. 2004) (internal quotations and citations
omitted)). That sort of evidence is rare, see e.g. Coleman, 667 F.3d at 845 (“‘smoking gun’
evidence of discriminatory intent is hard to come by”), and when an employer has not openly
admitted to discrimination “the plaintiffs must construct a convincing mosaic of circumstantial
evidence that allows a jury to infer intentional discrimination by the decisionmaker.” Brown v.
46
Advocate S. Suburban Hosp., 700 F.3d 1101, 1105 (7th Cir. 2012) (internal quotations omitted)
(citing Phelan v. Cook Cnty., 463 F.3d 773, 779 (7th Cir. 2006)).
The Seventh Circuit has recognized three types of circumstantial evidence:
(1) suspicious timing, ambiguous oral or written statements, or behavior toward or
comments directed at other employees in the protected group; (2) evidence,
whether or not rigorously statistical, that similarly situated employees outside the
protected class received systematically better treatment; [or] (3) evidence that the
employee was qualified for the job in question but was passed over in favor of a
person outside the protected class and the employer’s reason is a pretext for
discrimination.
Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012) (citing Darchak v. City of
Chi. Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009)). A plaintiff may rely solely on
circumstantial evidence to survive summary judgment, “but only if the circumstantial evidence
presented points ‘directly to a discriminatory reason for the employer’s action.’” Id. (citing
Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003), quoting Adams, 324 F.3d at 939).
The plaintiffs may also proceed under the familiar three-part burden-shifting method of
indirect proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To
establish a prima facie case of intentional discrimination under this “indirect method,” the
plaintiff has the initial burden of offering evidence that “(1) [they are] member[s] of a protected
class, (2) [their] job performance met [the employer’s] legitimate expectations, (3) [they]
suffered an adverse employment action, and (4) another similarly situated individual who was
not in the protected class was treated more favorably than the plaintiff [or plaintiffs].” Coleman,
667 F.3d at 845 (citing Burks v. Wis. Dep’t of Trans., 464 F.3d 744, 750-51 (7th Cir. 2006)).
“Once a prima facie case is established, a presumption of discrimination is triggered.” Id. The
burden then shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for
the adverse employment action. Id. (citing McDonnell Douglas, 411 U.S. at 802). “When the
employer does so, the burden shifts back to the plaintiff, who must present evidence that the
47
stated reason is a ‘pretext,’ which in turn permits an inference of unlawful discrimination.” Id.
(citing McDonnell Douglas, 411 U.S. at 804; Burks, 464 F.3d at 751).
C. Plaintiffs’ Statistical Evidence
The plaintiffs (other than Ward) briefly refer to statistical evidence developed by the
plaintiffs’ retained expert, Dr. Mark R. Killingsworth, in support of their individual disparate
treatment claims. The Court denied the defendants’ motion to strike Dr. Killingsworth’s reports
and testimony as unreliable pursuant to Federal Rule of Evidence 702. See Dkt. 454. But
although the Court deems Dr. Killingsworth’s analysis sufficiently reliable to pass muster under
Rule 702, that analysis—by its own terms—does not say anything about whether the Y
discriminated against these particular plaintiffs.
Whether statistical evidence can be relevant to the consideration of individual claims of
intentional discrimination on summary judgment presents interesting questions. Fourteen years
ago, the Seventh Circuit said in Adams v. Ameritech Servs. Inc., 231 F.3d 414, 423 (7th Cir.
2000), that the short answer to that question is “yes.” There, the Court of Appeals concluded that
“statistical evidence can be very useful to prove discrimination in either [an individual disparate
treatment claim or a discriminatory pattern or practice claim].” Id. The Adams court made clear,
however, and a number of subsequent panels have reiterated, that statistical evidence will
typically be useful only when offered in conjunction with other evidence of discrimination;
standing alone, statistical evidence is generally insufficient to prove individual claims of
intentional discrimination. See id.; see also, e.g., Baylie v. Federal Reserve Bank of Chicago, 476
F.3d 522, 525 (7th Cir. 2007); Bennett v. Roberts, 295 F.3d 687, 697 (7th Cir. 2002); Cullen v.
Ind. Univ. Bd. of Trs., 338 F.3d 693, 701 (7th Cir. 2003). Indeed, “it is unlikely that a pure
correlation [between a protected classification and some materially adverse employment action,
48
standing alone] would be enough to establish a prima facie case of intentional discrimination.”
See Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 363 (7th Cir. 2001).21
The utility of statistical evidence in proving individual intentional discrimination claims
may once again be open to question, however, in the wake of the Supreme Court’s opinion in
Wal-Mart v. Dukes, 131 S. Ct. 2541, 2555 (2011)). In Wal-Mart, the Court rejected statistical
evidence as an adequate basis to establish commonality in a putative class action asserted on
behalf of approximately 1.5 million past and present female employees of Wal-Mart, holding
that even statistical evidence showing a disparity in every one of Wal-Mart’s 3,400 stores would
not suffice to show causation—that is, in the absence of a common policy or procedure, mere
statistics could not “produce a common answer to the crucial question why was I disfavored.” Id.
at 2552 (emphasis in original). Wal-Mart was a class action, but the commonality inquiry
necessarily focuses on whether aggregated statistical evidence of discrimination provides a link
(in the words of the Court, whether there is a “glue”) between individual claims of discrimination
and calls into question the role of statistical evidence in proving such claims. If class-wide
21
That is not to say that statistical evidence can never be enough to establish a prima
facie case of intentional discrimination. See Kadas, 255 F.3d at 363. As the Seventh Circuit has
explained:
If 100 employees in a department of 1,000 employees were
[terminated] and every one of the 100 was [in the same protected
classification]…and every one one of the 900 retained was [not in
the protected group], that would…be enough evidence
of…discrimination (the probability of its occurring by chance
being inconceivably minute) to place on the employer a burden of
explaining [the justification for its employment decisions].
Id. But evidence that justifies shifting a burden of proof does not necessarily equate to evidence
sufficient to create a material issue of fact, as the convoluted McDonnell Douglas burdenshifting inquiry illustrates.
49
statistical evidence does not provide a common answer to the question, then it is difficult to
understand how it can be inferred from statistics drawn from the group as a whole that any
particular individual actually suffered discrimination.
The impact of Wal-Mart in this regard is academic in the present case, however, because
the plaintiffs’ expert does not purport to address the question of whether the Y discriminated
against any specific individual, or even whether any particular supervisor or department
discriminated against African American employees. Dr. Killingsworth’s own description of his
assignment reveals that the question addressed by his analysis is “whether there is a clear pattern
under which African-Americans as a group are systematically disadvantaged relative to others.”
Report of Dr. Mark Killingsworth, Dkt. 405-1, at 1 (emphasis added).22 Dr. Killingsworth
hazards no opinions about the merits of any of the plaintiffs’ individual discrimination claims,
and confirmed during his deposition that he had not done so. Specifically, Dr. Killingsworth
testified:
“Q: Wouldn’t you agree that the—the whole point of a statistical
analysis is to draw some generalizations and say on average what
is the case, not to say something about an individual person?
A: Oh, that’s right. You can’t—well, certainly with this kind of
analysis, you can’t say anything about individuals.”
Dkt. 304-5 at 9 (Dep. Tr. at 106:3-14). For their part, the plaintiffs do not rely heavily on Dr.
Killingsworth’s statistical evidence; in connection with their summary judgment response, they
22
The proffered statistical evidence purports to show, and Dr. Killingsworth opines, that
(1) African Americans were assigned to lower pay-grades than Caucasians of the same years of
service and education for the years 2005 to 2010, (2) African Americans were statistically
significantly less likely to be promoted and that their times for promotion were significantly
longer, (3) African Americans received statistically significant less favorable performance
evaluations than Caucasians of the same service and education in the years 2007 and 2008, and
(4) in every year from 2005 to 2010, and at statistically significant levels between 2005 and
2007, African Americans received less favorable pay. See Resp., Dkt. 334 at 13.
50
cite the statistical evidence only to point out that it buttresses the evidence that the Y
discriminated against “other employees” (see, e.g. Resp., Dkt. 334 at 13). The question presented
here, however, is whether the Y intentionally discriminated against these employees.
As Baylie explains, consistent with the Court of Appeals’ acknowledgement in Adams
that statistical evidence can be relevant in proving individual discrimination claims, such
evidence can be relevant because “all inferences are statistical.” 476 F.3d at 523. Statistical
evidence—if it is sufficiently reliable and probative of the fact that discrimination accounts for
an aggregate disparity—might, despite marginal probative value, tip the balance in a very close
individual case in which it is coupled with other evidence “which does most of the work.” Id. at
524. In this case, however, both the plaintiffs’ expert and the plaintiffs effectively acknowledge
that it has little, if any, significance.
D. James Jones and Nicole Steels
Plaintiffs Jones and Steels assert claims of pay discrimination, discriminatory
performance evaluations and merit increases, failure to promote, and retaliation. Jones also
asserts a claim of discriminatory termination. Steels, on the other hand, alleges that she was
constructively discharged from the Y and that Hite discriminated against her by refusing to allow
her to telecommute from home after her maternity leave.
1. Steels’ Bankruptcy Proceedings
The defendants contend that Steels is judicially estopped from asserting her claims
because she failed to disclose those claims on a bankruptcy petition she filed years prior to the
instant suit. Specifically, on August 5, 2004, Steels filed a Chapter 13 bankruptcy petition, Pl.
56.1 Resp., Dkt. 313 at 49, ¶ 72, and was represented by counsel through all stages of the
bankruptcy proceedings. Id. On Schedule B of her petition, she was directed to identify “all
51
contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the
debtor, and rights to setoff claims.” Id. at 49, ¶ 73. Another form required Steels to “[l]ist all
suits and administrative proceedings to which the debtor is or was a party within one year
immediately preceding the filing of [her] bankruptcy case.” Id. at 50, ¶ 73. Steels checked
“none” on both of those forms. Id.
On September 29, 2009, the bankruptcy court granted Steels a discharge of her debts. Id.
at 50, ¶ 75. On November 25, 2009, the bankruptcy court closed Steels’ case and discharged the
trustee. Id. At no time while her case was open did Steels disclose her charge of discrimination
or the existence of the claims she asserts in this case—which were filed on October 13, 2009,
while her bankruptcy case remained open—to the bankruptcy court. Id. at 50, ¶ 74.
Steels did, however, disclose her claims to the bankruptcy court a year and a half later,
after the defendants deposed her on March 7 and 8, 2011. Id. at 50, ¶ 76. During that deposition,
the defendants provided Steels with her August 5, 2004, bankruptcy petition as an exhibit,
specifically noting that Steels had failed to disclose her claims. Id. On July 1, 2011, Steels then
filed a motion to re-open her bankruptcy case to amend the schedules to her petition. Id. at 51, ¶
77. In that motion, Steels stated that she was “unaware of her obligation to inform counsel of the
pending claim” against her former employer, and that she contacted her counsel upon becoming
aware of the obligation to disclose her post-petition claim. Id.
Steels’ motion was granted on August 17, 2011, and her case was converted to Chapter 7.
Id. at 51, ¶ 78. Thereafter, on August 20, 2011, Steels filed an amended schedule, which
disclosed an employment discrimination claim worth $0 to $70,000. Id. On July 30, 2012,
however, the bankruptcy court issued its decision finding that Steels’ claim was not part of her
Chapter 7 bankruptcy estate because under the Bankruptcy Code, the estate’s assets are
52
determined at the time of the filing of the petition, when Steels’ claims had not accrued, and not
at the time of conversion. Bankr. Hr’g Tr. July 30, 2012, Defs. Br., Dkt. 415, Ex. B; see also
Google, Inc. v. Cent. Mfg., Inc., 316 Fed. Appx. 491, 495 (7th Cir. 2008) (“[A] cause of action
arising after the bankruptcy estate is created belongs to the debtor, and normally the property of a
Chapter 7 estate in a case that was converted from a Chapter 13 is determined by the debtor’s
interest at the time the Chapter 13 case was filed, not when it was converted.”). Regardless of the
bankruptcy court’s ruling, however, the defendants maintain that, because Steels failed to timely
disclose her claims to the Bankruptcy Court, she should be judicially estopped from pursuing
them now. See Mot., Dkt. 265 at 3.
“Judicial estoppel is a doctrine intended to prevent the perversion of the judicial
process…[and] applie[s] where intentional self-contradiction is being used as a means of
obtaining [an] unfair advantage in a forum designed for suitors seeking justice, to prevent
litigants from ‘playing fast and loose with the courts.’” Matter of Cassidy, 892 F.2d 637, 641
(7th Cir. 1990) (internal citations and quotations omitted). “Where a party assumes a certain
position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary position.” Id. (citing Davis v.
Wakelee, 156 U.S. 680, 689 (1895)); see also Cannon-Stokes v. Potter, 453 F.3d 446, 449 (7th
Cir. 2006) (holding that plaintiff was barred from realizing on her claims because she expressly
denied having any legal claims when she filed her Chapter 7 bankruptcy petition and failed to
amend that petition).
For judicial estoppel “[t]o apply, (1) the latter position must be clearly inconsistent with
the earlier position; (2) the facts at issue must be the same in both cases; and (3) the party to be
estopped must have prevailed upon the first court to adopt the position.” Urbania v. Cent. States,
53
Se. and Sw. Areas Pension Fund, 421 F.3d 580, 589 (7th Cir. 2005) (citing United States v.
Hook, 195 F.3d 299, 306 (7th Cir. 1999)). That said, “judicial estoppel is an equitable doctrine,”
Cannon-Stokes, 453 F.3d at 448; it “should not be used where it would work an injustice, such as
where the former position was the product of inadvertence or mistake.” Matter of Cassidy, 892
F.2d at 642; see also, e.g., New Hampshire v. Maine, 532 U.S. 742, 753 (2001) (“[I]t may be
appropriate to resist application of judicial estoppel ‘when a party’s prior position was based on
inadvertence or mistake.’”); Johnson Serv. Co. v. TransAmerica Ins. Co., 485 F.2d 164, 175 (5th
Cir. 1973) (“[T]he rule looks toward cold manipulation and not an unthinking or confused
blunder.”).
The defendants initially argued that Steels did not have standing to pursue her claims
because they belonged to her bankruptcy estate. However, the bankruptcy court determined that,
because her bankruptcy had been converted to Chapter 7, the estate did not own the claims.23
Bankr. Hr’g Tr. July 30, 2012, Defs. Br., Dkt. 415, Ex. B at 5. Nevertheless, the defendants
maintain that the criteria for applying judicial estoppel are met here and, therefore, Steels should
be barred from asserting her claims in this case.24 Mot., Dkt. 265 at 3. Regardless of whether the
claims actually belong to Steels’ Chapter 7 bankruptcy estate, the defendants point out that (as
the bankruptcy court found) Steels’ claims were “unquestionably property of [her] Chapter 13”
23
The bankruptcy court held that Steels’ cause of action was property of the Chapter 13
estate. See Bankr. Hr’g Tr. July 30, 2012, Defs. Br., Dkt. 415, Ex. B at 4. However, when Steels
converted her bankruptcy from Chapter 13 to Chapter 7, the court explained that the Bankruptcy
Code makes clear that “what property of the Chapter 13 estate becomes property of the Chapter 7
estate on conversion is the property that was property of the 13 estate on the petition date, not
after acquired property.” Id. Steels’ cause of action was not property of the Chapter 13 estate on
the petition date, and therefore, is not property of the Chapter 7 estate. Id. at 5.
24
Because the Bankruptcy Court determined that Steels’ claims did not belong to the
Chapter 7 estate, the defendants’ claim that Steels lacks standing to assert her claims on the
ground that all of her property belongs to the bankruptcy estate is moot. Bankr. Hr’g Tr. July 30,
2012, Defs. Br., Dkt. 415, Ex. B.
54
bankruptcy estate when those claims accrued. Defs. Br., Dkt. 415 at 2. Steels failed to disclose
her discrimination claims until the defendants confronted her with her deficient bankruptcy
petition at her deposition, id, and only due to “a quirk” in the Bankruptcy Code did those claims
cease to be assets of the bankruptcy estate. Id. That conclusion, the defendants argue, “end[ed] in
a somewhat…inequitable result.” Id. (citing Bankr. Hr’g Tr. July 30, 2012, Defs. Br., Dkt. 415,
Ex. B at 6:14). According to the defendants, therefore, despite the fact that her claims do not
belong to the Chapter 7 bankruptcy estate, Steels should be judicially estopped from pursuing
those claims in this Court lest she profit from their prior concealment. Id. at 3-4.
Steels, on the other hand, maintains that her bankruptcy petition was not “clearly
inconsistent” with her claims. Resp., Dkt. 334 at 62. Steels points to the fact that when she filed
her bankruptcy petition on August 5, 2004, her discrimination claims had not yet accrued, nor
had she filed an EEOC charge. Id. Moreover, Steels’ bankruptcy plan was confirmed on
September 22, 2004—years before her first charge of discrimination. Id. Steels avers that she did
not intentionally try to convince the bankruptcy court to accept an inconsistent position by failing
to amend her petition—she was simply unaware of her obligation to supplement her petition with
after-acquired property, and therefore, unintentionally omitted her claims. Id. at 63-64. In fact,
Steels contends that as soon as she learned about the disclosure requirement, she “promptly
sought leave to reopen the bankruptcy for the purpose of updating her disclosures.” Pl. Br., Dkt.
414 at 2.
“Debtors have a continuing duty to schedule newly acquired assets while the bankruptcy
case is open.” Rainey v. United Parcel Serv., Inc., 466 Fed. Appx. 542, 544 (7th Cir. 2012)
(citing In re Waldron, 536 F.3d 1239, 1244 (11th Cir. 2008)); see also Jaeger v. Clear Wing
Prods., Inc., 465 F. Supp. 2d 879, 882 (S.D. Ill. 2006) (“The duty to disclose is a continuing one
55
that does not end once the forms are submitted to the bankruptcy court; rather, a debtor must
amend his financial statements if circumstances change.”) (citation omitted). Moreover, “a
debtor in bankruptcy is bound by her own representations, no matter why they were made, at
least until the debtor moves to amend the disclosures and pay the creditors their due.” CannonStokes, 453 F.3d at 449 (emphasizing that the plaintiff had not taken the step to amend her
disclosures). And as the Seventh Circuit has explained, judicial estoppel “raises the costs of
lying” about those disclosures “by making [litigants] choose one position irrevocably,” CannonStokes, 453 F.3d at 448 (quoting Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1428 (7th
Cir. 1993)), and is designed to “prevent the perversion of the judicial process.” Id. (citing In re
Cassidy, 892 F.2d at 641). The issue, therefore, is whether Steels intentionally failed to amend
her bankruptcy petition (and only did so after the defendants’ discovery of the deficiency) to
realize on her discrimination claims, or whether her omission was due to inadvertence or
mistake.
The court in Jaeger decided precisely this issue, on substantially similar facts. 465 F.
Supp. 2d 879 (S.D. Ill. 2006). In that case, the plaintiff had filed for bankruptcy in May 2003, id.
at 881, and then suffered an injury at a concert a few months later, in November. Id. As a
consequence, the plaintiff could not have disclosed her tort claim in her bankruptcy petition
when she first filed it. Id. That said, the plaintiff conceded that she failed to disclose her claim
even after she modified her bankruptcy plans “three times after the injury.” Id. (emphasis in
original). The court, noting that “[t]he caselaw plainly holds that a debtor must amend his
pleadings whenever circumstances change,” id. at 882 (citations omitted), nevertheless
concluded “genuine issues of material fact…remain[ed] as to whether [the plaintiff’s] failure to
disclose constituted ‘cold manipulation’ or ‘intentional contradiction’ as opposed to a ‘confused
56
blunder’ or ‘simple error or inadvertence.’” Id. at 882 (citing Ajaka v. Brooksamerica Mortg.
Corp., 453 F.3d 1339, 1345, n. 7 (11th Cir. 2006); Am. Nat’l Bank of Jacksonville v. FDIC, 710
F.2d 1528, 1536 (11th Cir. 1983) (explaining that judicial estoppel applies to the “calculated
assertion” of divergent positions)).
The Jaeger court noted that the plaintiff discovered “that she might need to disclose [her]
pending lawsuit to the bankruptcy trustee” during a deposition in August 2006. 465 F. Supp. 2d
at 882, n.5. “Within three weeks, [the plaintiff’s] bankruptcy counsel informed…the Chapter 13
Trustee’s Office about [the] personal injury lawsuit,” id., who responded that the plaintiff did not
need to amend her bankruptcy schedules, “since the claim accrued after the bankruptcy petition
was filed.” Id. According to the court, viewed in the light most favorable to the nonmoving party,
the record “suggest[ed] that [the plaintiff’s] failure to disclose was inadvertent oversight, not
deliberate manipulation.” Id. at 882. But see Barger v. City of Cartersville, Ga., 348 F.3d 1289,
1294-97 (11th Cir. 2003) (affirming dismissal of monetary claims where the plaintiff, pursuing
her discrimination claim when she filed for bankruptcy, failed to list the claim as an asset on her
petition, and only sought to amend her petition after the defendants moved the district court to
enter summary judgment on judicial estoppel grounds); Karraker v. Rent-a-Ctr., Inc., No. 022026, 2005 WL 2979652, at *2-3 (C.D. Ill. Nov. 7, 2005) (plaintiff judicially estopped from
asserting wrongful termination claim where plaintiff was aware of the need to list pending
litigation on his bankruptcy schedules, the case was proceeding at the time the plaintiff failed to
disclose his claim, and the plaintiff failed to amend his bankruptcy petition prior to its dismissal).
Like the plaintiff in Jaeger, Steels failed to amend her bankruptcy disclosures after her
discrimination claims accrued. She promptly filed a petition to reopen her bankruptcy
proceedings once she learned of the continuing disclosure requirement at her deposition.
57
Whether Steels’ failure to disclose the discrimination claims she has asserted in this case was an
intentional attempt to win in two courts, based on two clearly inconsistent positions, as opposed
to an inadvertent mistake, is a genuine issue of material fact which precludes summary judgment.
See, e.g., Jaeger, 465 F. Supp. 2d at 885. Accordingly, the defendants’ motion for summary
judgment on judicial estoppel grounds is denied.
2. Jones’ and Steels’ Failure-to-Promote Claims
Jones and Steels both allege that Hite and the Y failed to promote them for racially
discriminatory reasons. The defendants contend that neither Jones nor Steels has any direct or
circumstantial evidence of discrimination to support their failure-to-promote claims, Mot., Dkt.
265 at 5, and that, to survive summary judgment, the plaintiffs must offer evidence that they
actually applied for a promotion. Mot., Dkt. 269 at 2. See also Cardoso v. Robert Bosch Corp.,
427 F.3d 429, 436 (7th Cir. 2005) (plaintiff failed to make it past the prima facie stage on a
failure-to-promote claim because he did not apply for the job openings at issue). According to
the defendants, because neither plaintiff applied for a promotion, their claims fail as a matter of
law. Mot., Dkt. 269 at 2; Mot., Dkt. 265 at 5.
In their combined response, the plaintiffs do not offer direct or circumstantial evidence of
intentional discrimination to support their failure-to-promote claims. Resp., Dkt. 334 at 50-52.
Instead, the plaintiffs focus solely on the “application” element of their claims, countering the
defendants’ argument by asserting that they do not need to show that they applied for a job
opening or promotion because the Y utilized a “‘preferred candidate’ system, pursuant to which
it would post positions after identifying the candidate it wanted…to fill the position.” Id. at 51
(original emphasis).
58
A “[f]ailure to promote can be an adverse [employment] action giving rise to liability…,
but the plaintiff must first show that she properly applied for the position.” Hill v. Potter, 625
F.3d 998, 1003 (7th Cir. 2010) (internal citation omitted) (citing McDonnell Douglas, 411 U.S.
at 802; Jackson v. Cnty. of Racine, 474 F.3d 493, 501 (7th Cir. 2007); Hudson v. Chi. Transit
Auth., 375 F.3d 552, 558 (7th Cir. 2004)). But, as the plaintiffs contend, it is also true that
“[w]hen an employer uses a promotion system in which employees do not apply for promotions
but rather are sought out by managers, the application requirement of the prima facie case is
loosened somewhat.” Box v. A & P Tea Co., 772 F.2d 1372, 1377 (7th Cir. 1985) (citing Reed v.
Lockheed Aircraft Corp., 613 F.2d 757, 761 (9th Cir. 1980); Rodgers v. Peninsular Steel Co.,
542 F. Supp. 1215, 1219-20 (N.D. Ohio 1982)). “In [that] situation, the plaintiff can establish the
application element of a prima facie case by showing that, had [he or] she known of an…
opening, [he or] she would have applied.” Id. (citing Rodgers, 542 F. Supp. at 1220); Gordan v.
City of Harvey, No. 07 C 5867, 2009 WL 2163233, at *9 (N.D. Ill. July 20, 2009) (plaintiff
satisfied Box application element by “specifically express[ing] an interest in being promoted to
sergeant”).
But the “preferred candidate” approach the plaintiffs described is quite different than the
recruitment of a specific candidate without affording any opportunity for others to apply for a
position. Here, the Y posted the positions and other employees had an opportunity to apply for
the position. That the Y had already identified someone who, it believed, met the criteria for the
position does not suggest that the application process was a sham (and neither Jones nor Steels
argues that it was). The Y’s identification of potential candidates, then, does not excuse
employees from the requirement that they actually apply for a higher level job opening before
claiming that they were discriminated against by the company’s decision to hire someone else to
59
fill that opening. That the Y could have reclassified or upgraded Jones’ position or considered
him for the National Director of Staff Development position in the absence of an application is
immaterial; what the Y could or might have done is insufficient to survive summary judgment on
a claim for intentional discrimination. See Brown, 700 F.3d at 1104 (“[O]ur favor toward the
nonmoving party does not extend to drawing inferences that are supported by only speculation or
conjecture.”); Delapaz v. Richardson, 634 F.3d 895, 901 (7th Cir. 2011) (“conjecture alone
cannot defeat a summary judgment motion” (citing Rockwell Automation, Inc. v. Nat’l Union
Fire Ins. Co. of Pittsburgh, PA, 544 F.3d 752, 757 (7th Cir. 2008))).
Steels’ failure-to-promote claim suffers from the same deficiency. See Resp., Dkt. 334 at
52. Like Jones, Steels only argues that the Y could have assigned her more responsibilities or
considered her for the position of interim director after Hite resigned from the Y. Id. However,
the record shows that Steels received two promotions during her employment with the Y, Reply,
Dkt. 380 at 16, and that she never expressed interest in another promotion—not even after she
knew the interim director position would be available after Hite’s resignation. Id. Accordingly,
because neither Jones nor Steels offer proof that they applied for a promotion, their failure-topromote claims fail as a matter of law.
3. Jones’ and Steels’ Performance Evaluation and Merit Increase Claims
Jones and Steels both allege that they were subject to discriminatory performance
evaluations and merit increases during their employment with the Y. The defendants contend that
neither plaintiff has direct or circumstantial evidence of discrimination to prove their claims
under the direct method, and, therefore, must proceed under the McDonnell Douglas indirect
method of proof. Mot., Dkt. 269 at 3; Mot., Dkt. 265 at 5. Jones and Steels respond that they can
prove their claims under either the direct or indirect method, and rely on a common set of direct
60
and circumstantial evidence which allegedly demonstrates Hite’s bias toward African
Americans. See Resp., Dkt. 334 at 19-22; 44; 49. The plaintiffs contend that these examples of
conduct and comments by Hite suggest that “she held negative racial stereotypes regarding
African Americans and treated them differently, [and] frequently undermin[ed] Jones and Steels
with their coworkers in the [HR] Department.” Resp., Dkt. 334 at 19.
Material Adverse Employment Actions:
Although the plaintiffs allege separate claims for performance evaluations and merit
increases, these issues are closely linked and rely on almost entirely the same set of evidence and
purportedly similarly-situated employees. As the plaintiffs continuously argue throughout their
brief, performance ratings were determinative of the annual merit increase that each employee
received. Indeed, the Y issued guidelines setting a range of percentages for salary increases that
directly corresponded to overall performance ratings. See Pl. 56.1 Resp., Dkt. 313 at 11-13, ¶¶
17-18. For example, in 2005, an employee who received a performance rating of “exceeds
expectations” would have been eligible to receive a merit salary increase between 3.1% and
4.9%. Pl. 56.1 Resp., Dkt. 312 at 12-13, ¶ 17. Further, there is no evidence that either plaintiff
(or potential comparator) received a merit increase outside the guidelines established by the Y,
i.e., received a merit increase lower or higher than the range established under the guidelines for
the performance rating they had received. In other words, if either plaintiff received a
discriminatory performance evaluation or merit increase, those adverse employment actions
would have taken place concurrently.
At the outset, the defendants contend that the plaintiffs’ performance evaluation and
merit increase claims fail because both Jones and Steels received positive ratings and merit
increases during the entire duration of their employment with the Y, and, therefore, neither
61
plaintiff experienced a “material adverse employment action” necessary to establish a claim.
Mot., Dkt. 269 at 3; Mot., Dkt. 265 at 6. According to the defendants, neither plaintiff received a
“negative” review, Mot. Dkt. 269 at 3, and even if they had, “negative performance evaluations,
standing alone, are not cognizable adverse employment actions.” Mot., Dkt. 265 at 8 (citing De
La Rama v. Illinois Dep’t of Human Servs., 541 F.3d 681, 686 (7th Cir. 2008)). Moreover, both
plaintiffs received positive merit increases as a result of their positive performance ratings.
Reply, Dkt. 374 at 17. As such, again according to the defendants, the plaintiffs’ performance
evaluation and merit increase claims cannot constitute adverse employment actions necessary to
establish a claim.
The plaintiffs correctly respond, however, that the Y’s performance evaluations do not
“stand alone” because an employee’s performance rating determined the percentage of merit
increase that employee received for the year. Resp., Dkt. 334 at 45. To be material, “[t]here must
be some tangible job consequence accompanying the” performance evaluation, Lucas v. Chi.
Trans. Auth., 367 F.3d 714, 731 (7th Cir. 2004), and “a materially adverse change might be
indicated by a termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a particular situation.” De La Rama, 541
F.3d at 685-86 (citation and internal quotations omitted). Here, the performance rating and merit
increase guidelines are undisputed. Moreover, the defendants even contest the plaintiffs’ claims
for discriminatory evaluations by arguing that the plaintiffs received favorable performance
evaluations “which…resulted in” annual merit increases. Reply, Dkt. 374 at 10. Accordingly, it is
clear that the performance evaluations given by the Y were “material” for purposes of a claim of
intentional discrimination, because they determined annual salary increases.
62
The issue for the plaintiffs’ performance evaluation and merit increase claims, then, is
whether facially positive evaluations and merit increases, as the plaintiffs received, can
constitute “adverse” employment actions sufficient to establish a claim for discrimination. The
Seventh Circuit has explained that “receipt of an inadequate pay raise can…amount to an adverse
employment action.” Whigum v. Keller Crescent Co., 260 Fed. Appx. 910, 914 (7th Cir. 2008)
(citing Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004)). More importantly, “context matters
to the determination of what constitutes a materially adverse action.” Silverman v. Bd. of Educ.
of City of Chi., 637 F.3d 729, 741 (7th Cir. 2011). “In some circumstances, even faintly positive
evaluations could [amount to adverse actions]…at least if the expectation in the organization or
based on the employee’s track record is that fair evaluations will be very positive.” Palermo v.
Clinton, 437 Fed. Appx. 508, 511 (7th Cir. 2011) (explaining that “faintly positive” evaluations
could constitute adverse actions sufficient to support a retaliation claim). In other words, the
issue of whether a positive performance evaluation and merit increase is adverse is relative to the
context in which that evaluation and increase was given.
If, as the defendants aver, a facially positive performance evaluation and annual merit
increase could never constitute a “materially adverse action,” the Y could potentially assign
every single African American employee a rating of “meets expectations” and corresponding
merit increase, while awarding all Caucasian employees a rating of “exceeds expectations” and
equivalent raise, and not run afoul of federal law—a proposition that is clearly incorrect. See,
e.g., King v. Acosta Sales and Mktg., Inc., 678 F.3d 470, 473 (7th Cir. 2012) (plaintiff
established a pay discrimination claim where male employees had received substantially greater
increases in pay than women; “Even a dollar’s difference based on sex violates…Title VII.”);
Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001) (under defendant’s perverse logic, “an
63
employer could award $500 bonuses to all white employees and $1 bonuses to all similarly
situated black employees without running afoul of [federal law], because under such a
discriminatory scheme no employee would be worse off in an absolute sense.”). Accordingly,
whether the performance ratings and merit increases given to these plaintiffs were “materially
adverse” is a disputed question of fact that is not appropriately determined at the summary
judgment stage. See, e.g., Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394, 407 (7th Cir.
2010) (“Sometimes whether an action is an adverse employment question is clear as a matter of
law, but ‘there are times when the question is not so obvious’ such that it is a question of fact.”)
(citing Lewis v. City of Chi. Police Dep’t, 590 F.3d 427, 436 (7th Cir. 2009)) (citing SEVENTH
CIRCUIT PATTERN JURY INSTRUCTION § 3.01, Comment E, which notes that if a fact issue arises
as to whether the plaintiff suffered a materially adverse employment action, “a court should
modify the instructions to provide the jury with guidance as to what this term means”); O’Neal v.
City of Chi., 588 F.3d 406, 409-10 (7th Cir. 2009) (issue of fact regarding adverse employment
action where repetitive reassignments would negatively affect opportunity for promotion)).
Direct Method:
Even assuming that the performance ratings and merit increases Jones and Steels received
constitute adverse employment actions, however, the plaintiffs’ list of direct and circumstantial
evidence, with a few exceptions, falls short of what is required under the direct method of proof
because their examples of bias either do not relate to an employment decision made by Hite, the
putative decisionmaker in connection with the claims,25 fail to “point directly to a discriminatory
reason” for an employment action taken by Hite, see, e.g., Abuelyaman v. Ill. State Univ., 667
25
Jones and Steels maintain that Hite decided their performance rating and merit
increases. Accordingly, to prevail, they must adduce evidence sufficient to create a fact issue as
to whether Hite, not some other manager, intended to discriminate against them.
64
F.3d 800, 809 (7th Cir. 2011), or are not supported by admissible evidence. For example, the
plaintiffs state that (1) Hite told Jones that the Y’s CEO, Neil Nicoll, did not want the Y to get
involved with “Heritage Y’s” (which, according to the plaintiff, are “Y’s [that were] created
when African Americans were not allowed to join local Y[‘s],” Pl. 561. Resp., Dkt. 312 at 80, ¶
57) because “they were like Historically Black Colleges and needed to come into the
mainstream,” Resp., Dkt. 334 at 19, (2) Hite told Jones that Nicoll thought that Maurice Horsey,
an African American employee, was lazy during an investigation of Horsey’s complaint of
harassment and discrimination, id. at 20, and that (3) sometime in 2004 or 2005, HR Director
Sharon Rakowski stated that she thought all of the call center employees at the Y were “from the
ghetto.” Id. at 50. These examples fall short because they do not point directly (indeed, do not
point at all) to a discriminatory purpose or bias by Hite in connection with assigning annual
performance ratings and merit increases, as required in establishing a claim under the direct
method of proof. See Naficy, 697 F.3d at 510 (“The relevant question under the direct method is
whether the evidence ‘points directly’ to a discriminatory motive for the employer’s decision.”
(citing Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 501 (7th Cir. 2010))). None
of the pieces of evidence even purports to relate to Hite’s views or to a decision by any
supervisor with input into the assignment of performance ratings or award of merit increases to
Jones and Steels. Even if these comments reflect racial bias (a debatable proposition), there is no
connection between these comments and the performance evaluations Jones and Steels received.
Steels also offers numerous examples of occasions when Hite acted toward her in an
aggressive, or even rude and disrespectful, manner. For instance, Hite leaned over Steels’ desk
and told her that she “need[ed] to understand who is in charge.” Resp., Dkt. 334 at 20. Steels
complains as well that on one occasion, Hite stood outside of Steels’ office door while she was
65
using a breast pump to express milk for her infant, listened, and then instructed Steels not to lock
the door to her office. Id. Steels complains as well that Hite corrected Steels’ grammar in front of
other employees and interrupted her during a presentation. Id. These incidents may suggest that
Hite was overbearing or difficult to work for, but they do not point directly to an unlawful racial
animus underlying Hite’s performance rating and merit increase decisions. See, e.g., Brown, 700
F.3d at 1105 (“Title VII protects against discrimination, not ‘personal animosity or juvenile
behavior.’” (citing Shafer v. Kal Kan Foods, Inc., 417 F.3d 663, 666 (7th Cir. 2005))). Jerk is not
a synonym for bigot.
The plaintiffs also offer a list of African American employees who allegedly received
“stereotyped evaluations,” as circumstantial evidence of discriminatory intent and pretext. See
Resp., Dkt. 334 at 49. But like the evidence above, the plaintiffs have failed to sufficiently tie
this evidence to a discriminatory reason for the performance ratings and merit increases that Hite
assigned to them. For example, Ursala Tatum was allegedly paid to leave the Y after
complaining about her work environment in the marketing department. Id. According to the
plaintiffs, Tatum’s supervisor (who was not Hite) cited performance reasons for Tatum’s
problems within the marketing department. See Defs. 56.1 Resp., Dkt. 375 at 25, ¶ 46. However,
Nussbaum, who was the Director of Y University, purportedly disagreed with the supervisor’s
assessment, but instructed Jones to offer Tatum money to resign in order to protect the Y from
discrimination charges. Id. Even if true, this example does not point to discrimination by Hite.
Indeed, only one of the examples (that of Phyllis Lee) even refers to Hite; that example merely
says that Hite denied a merit increase that an African American manager had recommended, but
does not allege, much less cite evidence, that Hite’s decision was motivated by race. See Pl.
Resp., Dkt. 334 at 49.
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As noted above, evidence of a defendant’s “behavior toward or comments directed at
other employees in the [same] protected group” as the plaintiffs is relevant circumstantial
evidence. Hasan v. Foley & Lardner LLP, 552 F.3d 520, 527 (7th Cir. 2008). But as the Seventh
Circuit has explained, the relevance of “me too” evidence, as it is sometimes referred, depends
on “a variety of factors, including ‘how closely related the evidence is to the plaintiff’s
circumstances and theory of the case.’” Hasan, 552 F.3d at 529 (citing Sprint/United Mgmt. Co.
v. Mendelsohn, 552 U.S. 379 (2008); Fed. R. Evid. 401, 403); see also Troupe v. May Dep’t
Stores Co., 20 F.3d 734, 737 (7th Cir. 1994). The plaintiffs argue that they “could not possibly
provide details regarding each of these employees’ situations.” Resp., Dkt. 334 at 50. However,
in order to survive summary judgment, that is exactly what the plaintiffs must do to create the
“convincing mosaic” of circumstantial evidence that would allow a reasonable factfinder to infer
a discriminatory reason for Hite’s evaluation and merit increase decisions. Without additional
context, it is impossible to distinguish any of these examples from a nondiscriminatory
employment action and a potentially discriminatory action based on race by the specific
decisionmaker who allegedly discriminated against Jones and Steels—Elinor Hite. See, e.g.,
Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 677 (7th Cir. 2011) (evidence that
another employee raised complaints of sex discrimination was unavailing because the record
contained “no evidence that the [defendant] did in fact discriminate”); Harris v. Warrick Cnty.
Sheriff’s Dep’t, 666 F.3d 444, 448 (7th Cir. 2012) (to prove discrimination, evidence must
establish “that the decisionmaker has acted for a prohibited reason” (citing Rogers v. City of Chi.,
320 F.3d 748, 754 (7th Cir. 2003))). Was Hite involved in each, or any, of the performance
evaluation decisions offered as evidence? Were each, or any, of the decisions motivated by
67
unlawful racial discrimination or were they based on performance or any number of factors
unrelated to race?
The plaintiffs’ most substantial evidence of Hite’s bias is inadmissible. According to the
plaintiffs, Hite allegedly told Donna Russell, a Caucasian temporary employee in HR, that “black
fat women are not good in clerical positions,” in connection with the termination of an African
American administrative employee. Pl. Resp., Dkt. 334 at 19. This potentially significant piece
of evidence, however, comes from an investigative report prepared by Ogletree, the law firm
hired to investigate Steels’ 2007 discrimination complaint. Id. As the defendants correctly point
out, this report is inadmissible hearsay because it is an out-of-court statement being offered for
the truth of the matter asserted. Fed. R. Evid. 801(c). In fact, the evidence offered to prove that
Hite made the discriminatory statement potentially contains at least three levels of hearsay: (1)
Hite’s statement to Russell; (2) Russell’s statement to the investigating attorney; and (3) the
attorney’s report. Hite’s statement to Russell would qualify as a party admission, Fed. R. Evid.
801(d)(2) (technically non-hearsay), and would not in any event be offered by plaintiffs for its
truth, but the plaintiffs have failed to identify any exception that would permit admission of
Russell’s statement to the attorney (“Hite said this to me”) or for the report itself (“Russell said
that Hite said this”). Those statements would be offered for their truth—i.e., to prove that Hite’s
statements were made—and would therefore constitute hearsay.
The plaintiffs have failed to offer either sufficient direct evidence or circumstantial
evidence to create a “‘convincing mosaic’ … that would allow a reasonable [jury] to infer that”
Hite issued performance ratings and merit increases based on racial discrimination. See, e.g.,
Abuelyaman, 667 F.3d at 809 (citing Troupe, 20 F.3d at 737). They have therefore failed to
satisfy their burden under the direct method of proof with respect to those claims.
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Indirect Method:
Therefore, to survive summary judgment on these claims, Jones and Steels would need to
establish prima facie cases of intentional discrimination under the indirect method of proof. Both
plaintiffs are African American and have, therefore, established the first element of a prima facie
case: membership in a protected group. See, e.g., Watson v. Pace W. Div., Subdivision of Reg’l
Transp. Auth., 129 F.3d 1268, at *2 (7th Cir. 1997) (explaining that the plaintiff “is African
American and therefore a member of a protected group”). Moreover, the record indicates that
both plaintiffs were generally meeting the Y’s legitimate expectations, and the defendants have
not challenged the plaintiffs on this issue. Accordingly, the plaintiffs’ ability to prove their
claims under the indirect method turns on whether they have sufficiently identified similarly
situated employees not in their protected group who were treated more favorably.
On this issue, Jones’ claims fall short because he fails to identify a similarly-situated,
non-African American employee who received a more favorable performance rating or merit
increase. The defendants argue that Jones cannot identify any similarly-situated employee
because Jones was the only director-level employee reporting to Hite. Mot., Dkt. 269 at 5. But
this argument is too narrow and demands a “precise equivalence” not required by the law. See
Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (citing Santa Fe Trail Transp. Co., 427
U.S. 273, 283 n.11 (1976)). The similarly-situated-employee analysis requires only that the
comparator be comparable to the plaintiff “in all material respects.” Bio v. Fed. Express Corp.,
424 F.3d 593, 597 (7th Cir. 2005) (internal quotations omitted) (citing Patterson v. Avery
Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002)). In evaluating whether two employees are
comparable, courts look at all relevant factors, including whether the employees “(i) held the
same job description, (ii) were subject to the same standards, (iii) were subordinate to the same
69
supervisor, and (iv) had comparable experience, education, and other qualifications—provided
the employer considered these latter factors.” Id. (citing Ajayi v. Aramark Bus. Servs., Inc., 336
F.3d 520, 532 (7th Cir. 2003)).
But Jones errs in the other direction, arguing that he was similarly situated to every single
employee at the Y because Hite and/or Nicoll reviewed all performance evaluations and merit
increases.26 Resp., Dkt. 334 at 35 (arguing that he is similarly situated to all Y employees with
respect to merit increases); id. at 46 (arguing that he is similarly situated to all Y employees with
respect to performance evaluations). The fact that Hite or Nicoll reviewed performance
evaluations made by other supervisors does not establish the existence of a common supervisor.
And blanket arguments that Jones is similarly situated to every employee, either in HR or at the
Y as a whole, will not suffice. See, e.g., Dority v. City of Chi., No. 98 C 4893, 2001 WL
1155286, at *14 (N.D. Ill. Sept. 28, 2001) (“a plaintiff must provide specific evidence and
specific examples of employees who have been treated more favorably” (citing Harris v. SSM
Healthcare, No. 97 C 2121, 1998 WL 704056, at *3 (N.D. Ill. Sept. 13, 1998))). Without
offering evidence that Jones is similarly situated to another employee in “all material respects,”
this Court cannot conduct a meaningful comparison to determine whether a reasonable inference
of racial discrimination can be made.
It bears noting in this regard that Jones’ failure to identify a comparator is not solely the
product of his high-ranking position. Regardless of rank, no other employee in HR received a
higher rating than Jones in 2006, who received an “exceeds expectations” rating and 5.5% merit
26
To the extent that Jones argues that he was similarly situated with Laura Fortson or
Kurt Kramer, it is undisputed that these employees were in different departments and had
different supervisors. See Pl. 56.1 Resp., Dkt. 312 at 35, ¶ 46. Moreover, Jones does not dispute
that Fortson had more years of experience than he did. Id. Further, in 2006, Jones received a
5.5% increase, while Fortson’s increase was only 4.7% and Kramer’s was only 4.25%. Id. at 3536, ¶¶ 47, 49.
70
increase. So even if Jones had identified similarly-situated employees in HR for that year, he
could not have shown that any of those employees were treated more favorably. Mot., Dkt. 269
at 4.27
Based on the foregoing, a jury could not reasonably infer that Hite’s performance rating
and merit increase decisions were based on racial discrimination. “Whether a comparator is
similarly situated is ‘usually a question for the fact-finder,’ and summary judgment is appropriate
only when ‘no reasonable fact-finder could find that plaintiffs have met their burden on the
issue.’” Coleman, 667 F.3d at 846-47 (citing Srail v. Vill. of Lisle, 588 F.3d 940, 945 (7th Cir.
2009)). Where the plaintiff has not even attempted to identify a single employee with enough
common factors to allow for a meaningful comparison, however, no reasonable factfinder could
conclude that the plaintiff has met his burden for that element of a prima facie case. And because
Jones has failed to establish a prima facie case, the Court need not address his arguments
regarding pretext. Accordingly, the defendants’ motions for summary judgment on those claims
are granted, and Jones’ claims for discriminatory performance evaluations and merit increases
are dismissed.
Steels similarly argues that she is comparable to all employees at the Y. Resp., Dkt. 334
at 35. As explained above, this argument fails as a matter of law. However, Steels also argues
that Gondek and VanDeventer were comparable for purposes of her discriminatory performance
evaluation and merit increase claims. Id. at 38. VanDeventer, however, is not a proper
comparator. Steels argues that VanDeventer is similarly situated solely on the grounds that they
were both supervised by Hite and were subject to the same performance review process. Resp.,
27
The fact that Jones received a higher evaluation than any other employee in HR,
moreover, would be probative evidence to rebut his claims that his evaluations were racially
discriminatory in other years (in the absence of a change in the personnel responsible for his
evaluations).
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Dkt. 334 at 38. But VanDeventer held a different position than Steels, Project Coordinator, see
Pl. 56.1 Resp., Dkt. 313 at 23, ¶ 32, a position that earned less than Steels throughout the
relevant time period. See, e.g., id. at 28, ¶ 41. Steels, on the other hand, was a Senior HR
Generalist, with different job responsibilities and duties. Id. at 24, ¶ 35.
That said, at least in 2006 and part of 2007, Steels was similarly situated to Gondek, a
Caucasian woman. During that time period, both Steels and Gondek were supervised directly by
Hite and held the same position, Senior HR Generalist. Id. at 26, ¶ 40. In September 2006,
Gondek received a 4% merit increase and a rating of “exceeds expectations” on her performance
review. Id.; Defs. 56.1 Resp., Dkt. 381 at 22, ¶ 39. For that same year, Steels received a rating of
“meets expectations” and an increase of 2.9%. Pl. 56.1 Resp., Dkt. 313 at 20, ¶ 30; id. at 25, ¶
36. After April 2007, however, Gondek was no longer similarly situated to Steels. At that time,
Gondek began working part-time and earning 20% of her salary. She then moved to Philadelphia
and only worked on discrete projects later that year. Pl. 56.1 Resp., Dkt. 313 at 21, ¶ 31; 34, ¶ 52.
Moreover, in 2007, Steels received a “meets expectations” rating and a 3.8% increase. Id. at 21, ¶
31; id. at 25, ¶ 37. Gondek also received a “meets expectations” rating for that year, but only a
3.3% merit increase. Id. at 23, ¶ 33.
Having established that Gondek was similarly situated, the burden of proof shifts to the Y
to offer a legitimate, nondiscriminatory reason for the difference in ratings and pay increases
between Steels and Gondek for 2006. The defendants must therefore proffer a legitimate
justification, i.e., some other basis for Hite’s decision other than race. In deciding whether the
defendants’ justification is pretextual, “[t]he question is not whether the employer’s stated reason
was inaccurate or unfair, but whether the employer honestly believed the reason it has offered to
explain” the difference in evaluations. See Harper, 687 F.3d at 311 (citing O’Leary v. Accretive
72
Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011)). In other words, the question is whether the Y’s
justification is “a lie.” Id. (citing Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir. 2005)). To
meet this burden the plaintiff “must identify such weaknesses, implausibilities, inconsistencies,
or contradictions’ in [the defendants’] stated reason ‘that a reasonable person could find [it]
unworthy of credence.’” Id. (citing Boumehdi, 489 F.3d at 792).
In this case, the Y proffers a particularly weak justification—that Hite based each
performance score and merit increase on her “honest assessment” of both employees. Indeed,
that is not a justification at all, but merely a conclusion that Hite did not discriminate. As the
plaintiff points out, neither the written performance reviews nor the defendants’ briefs provide
any objective basis for Hite’s determination. See Resp., Dkt. 334 at 40. Essentially, the
defendants’ argument is circular: the proof that Hite did not discriminate is that Hite’s
assessment of each employee was not discriminatory. But without more, the defendants’
justification begs the question of whether her subjective determination, or “honest assessment,”
was, at least in part, motivated by racial discrimination. See, e.g., Williams v. City of
Montgomery, 742 F.2d 586, 588 (11th Cir. 1984) (defendants’ justification for firing African
American insufficient because it was purely subjective and irrelevant to the defendants’
termination policies).
The Y’s argument, however, is buttressed by the fact that Hite’s pay increase was higher
than Gondek’s the following year. It is difficult to sustain an inference that Hite discriminated
against Steels on the basis of her race in 2006 from the fact that she approved a higher increase
for Gondek in 2006 when she did precisely the opposite the following year. But Steels also cites
additional evidence to support an inference of pretext, such as Hite’s admission that she
considers race when making personnel decisions and Hite’s failure to follow internal procedures
73
by not completing formal performance reviews for either Steels or Jones. Resp. Dkt. 334 at 40.
This additional evidence strengthens the inference of pretext. See, e.g., Rudin v. Lincoln Land
Cmty. Coll., 420 F.3d 712, 727 (7th Cir. 2005) (“[A]n employer’s failure to follow its own
internal employment procedures can constitute evidence of pretext.”); Giacoletto v. Amax Zinc
Co., Inc., 954 F.2d 424, 428 (7th Cir. 1992) (plaintiff offered sufficient evidence of pretext
where the defendant “improperly implement[ed] a subjective employment decision which
contradicted objective evidence regarding [the plaintiff’s] capabilities”). By failing to complete
the performance evaluations or provide an objective basis for Hite’s employment decisions, the
defendants effectively caused the absence of objective evidence by which to judge whether
Hite’s “honest assessment” was truly nondiscriminatory. Accordingly, at least for 2006, the
Court concludes that there is a triable issue of fact as to whether the difference in Steels’ and
Gondek’s performance evaluations and pay increases was based on racial discrimination.
Therefore, the defendants’ motion on this claim is denied as to 2006; the motion is granted,
however, with respect to 2007.
4. Jones’ and Steels’ Discriminatory Compensation Claims
Jones and Steels also allege that their annual base compensation was discriminatorily
low. In particular, Jones claims that his starting salary, annual compensation, compensation for
serving as the HR department’s interim director, and equity increases he received were all
discriminatory. Similarly, Steels alleges that her annual compensation and equity increases were
discriminatorily low during her time as a Senior HR Generalist. The defendants contend that
neither Jones nor Steels can prevail on their compensation claims under either the direct or
indirect methods of proof.
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At the outset, the Court can quickly dispose of Jones’ claim that he was paid a
discriminatorily low interim increase for his service as the interim director of HR, during the
period after Timmons’ resignation and before Hite’s arrival. As the defendants note, Jones
admitted that neither Nussbaum nor Ken Gladish, the individuals from whom he requested an
increase, had discriminated against him. Mot., Dkt. 269 at 7; Reply, Dkt. 374 at 17. Moreover,
although he did not receive it immediately, the interim increase that Jones did receive was 37.5%
of his salary, while the Y’s general practice was to grant employees only a 30% increase for
interim work.28 Id. Jones never responded to these arguments in his response brief. See, e.g.,
Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 389 (7th Cir. 2012) (plaintiff forfeited
reliance on evidence not raised in opposition brief to summary judgment) (citing Liberles v.
Cook Cnty., 709 F.2d 1122, 1126 (7th Cir. 1983) (“It is a well-settled rule that a party opposing a
summary judgment motion must inform the trial judge of the reasons, legal or factual, why
summary judgment should not be entered. If it does not do so, and loses the motion, it cannot
raise such reasons on appeal”)). Accordingly, the defendants’ motion for summary judgment on
Jones’ claim for discriminatorily low interim pay is granted.
The defendants similarly contend that Jones cannot prove that his starting salary was
discriminatorily low because he has not offered sufficient direct or circumstantial evidence and
cannot establish a prima facie case under the indirect method. Jones attempts to offer evidence
under both methods of proof; however, his evidence falls short of creating a “convincing
mosaic” from which discrimination can be inferred under the direct method and fails to identify a
similarly-situated employee under the indirect method.
28
As explained above, while it is unclear how the parties arrived at the 37.5% bonus
figure, it is undisputed that Jones received a bonus for his service as the interim director. See
infra at 5, n.5.
75
A review of the record evidence could support the inference that Jones’ starting salary
was lower than the starting salary of other senior personnel. For instance, Jones received several
equity salary increases shortly after being hired. On May 1, 2005, Jones’ salary was increased to
$100,008. Pl. 56.1 Resp., Dkt. 312 at 32, ¶ 41. Further, Jones received another equity increase in
2006, bringing his salary to $115,008. Id.at 33, ¶ 43. Jones argues that these pay raises show that
his starting pay was too low, but that argument puts an employer into an impossible box: give
good pay raises and be susceptible to a claim that starting salary was discriminatory; give low
pay raises and face claims of discriminatory pay raises. And here, Jones advances both.
In this case, Jones presents evidence that Timmons, who was the director of HR when
Jones was hired, agreed that Jones’ starting salary was too low. But evidence tending to show
that his starting salary was low, by itself, is not enough to raise a reasonable inference that the
cause of the discrepancy was due to intentional discrimination, either by Timmons, who was the
director of HR at the time, or as the plaintiff alleges, some other, unidentified, decisionmaker
higher in the Y’s chain of command. Employers have economic incentives to offer a starting
salary that is the lowest salary that will attract a candidate they wish to hire;29 that they were able
to recruit Jones for less than some other employee does not, standing alone, support an inference
of discrimination.
The differences between Jones’ resumé and experience and those of the employees he
points out as comparators show that there were non-racial factors that could have justified the
differences in their starting salaries. Jones alleges that he and Steven Kramer, the Y’s Director of
Program Leadership and Training, were hired at approximately the same time, but Kramer
29
This is not to say that employers never have incentives to pay above-market rates; the
point is that it cannot be inferred solely from the fact that a salary offered to one candidate is
lower than that offered to another, or that is below-market generally, that the lower salary is the
product of discriminatory bias.
76
received a starting salary of $130,008. Resp., Dkt. 334 at 41. Timmons identified Kramer’s
position as the closet match in skill level, Resp., Dkt. 334 at 41, but despite that finding (which
is not conclusive), Timmons recommended that Jones’ salary only be increased to grade 9 (and
not grade 11, the corresponding grade for Kramer’s position as Director of Program Leadership
and Training), and specifically noted that his recommendations were “based on external data due
to the competitive market of the position in question.” See Pl. 56.1 App., Dkt. 326, Tab 85(a) at
33 (emphasis added). Further, and as explained above, Kramer was in a different department,
with a different job title, different responsibilities, and different supervisors. Pl. 56.1 Resp., Dkt.
312 at 36, ¶ 48. As such, there are simply too many differing material factors, both internal and
external to the Y, between Jones and Kramer to allow for a meaningful comparison, which
would give rise to an inference of racial discrimination as an explanation for the differences in
their starting salaries. See, e.g., Hanners, 674 F.3d at 692 (plaintiff failed to “demonstrate that
the individuals [he] listed were ‘directly comparable to [him] in all material respects’”). Jones
also points to the salary of Sharon Rakowski, a director in HR who was earning $93,672 when
Jones was hired at a starting salary of $80,016 by Timmons. Resp., Dkt. 334 at 41. However, it is
undisputed that Rakowski had been working for the Y for three years before Jones was hired.
Defs. 56.1 Resp., Dkt. 375 at 4-5. Moreover, Rakowski had been working as the HR
Department’s highest ranking employee during that time. Id.
Accordingly, Jones has failed to offer sufficient evidence to support his claim for a
discriminatorily low starting salary, and has failed to identify similarly-situated employees to
77
establish a prima facie case for that claim under the indirect method.30 Therefore, the defendants’
motion for summary judgment on that claim is granted.
Steels, on the other hand, offers two similarly-situated employees who were paid more
than her during her time at the Y. First, Hite hired Lourdes Durren, a Hispanic woman, as a
Senior HR Generalist at a salary higher than that of Steels. Dkt. 334 at 36. Durren was hired on
January 1, 2008, at a salary of $78,000. Pl. 56.1 Resp., Dkt. 313 at 28, ¶ 42. At the time,
however, Steels was earning $73,080 for the same position. Id. at 21, ¶ 31; id. at 25, ¶ 37. To
justify the difference in salaries, the defendants argue that Durren had a master’s degree and
more experience as an HR consultant, director, and senior generalist. Id. at 29, ¶ 43. However,
there is no evidence that Hite actually considered these factors when setting Durren’s salary. See
Bio, 424 F.3d at 597 (“[Courts may consider] experience, education, and other qualifications
[when determining whether employees are comparable]—provided the employer considered
these…factors.”). In fact, Hite posted a job opening for a Senior HR Generalist with a potential
salary range, the low end of which was higher than Steels’ then-current salary, Resp., Dkt. 334 at
35, suggesting, as the plaintiff argues, that Hite was willing to pay “anybody,” regardless of
education or experience, a higher salary than Steels.
In their reply brief, the defendants attempt to offer evidence, in the form of a declaration,
that Hite relied on Durren’s education and experience in setting her salary. See Defs. 56.1 App.,
30
The plaintiff argues that it is improper to draw an inference that Timmons could not or
would not discriminate against Jones in setting his starting salary simply because Timmons hired
Jones or because Timmons is also African American. See Resp., Dkt. 334 at 42. In the abstract,
the plaintiff are correct, but the issue is beside the point. The plaintiff has not offered evidence to
support an inference that either Timmons or some other decisionmaker set Jones’ starting salary
lower than it otherwise would have been because, or partly because, Jones is African American.
Jones argues that Timmons may have been pressured to set his salary lower than Rakowski’s. Id.
at 43. But this argument fails to account for the differences in Rakowski’s time and experience at
the Y, and amounts to no more than speculation and conjecture which, as already noted, is
insufficient to survive summary judgment.
78
Dkt. 382-2, Tab 2 at ¶ 7 (“I set Durren’s salary based on her credentials and experience.”). But
the defendants’ proffered declaration falls short of satisfying their burden of offering a
legitimate, nondiscriminatory justification for the discrepancy in Steels’ and Durren’s salaries.
While there is no “blanket prohibition from filing additional affidavits when a movant for
summary judgment files a reply brief following a nonmovant’s response,” Balderston v.
Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 318 (7th Cir. 2003), the timing of
the defendants’ offer of proof leaves the plaintiff without an opportunity to respond to or rebut
the justification as pretext. See, e.g., Nelson v. United Parcel Serv., Nos. 06 C 1428, 06 C 1898,
2008 WL 4449885, at *8 (N.D. Ill. Sept. 30, 2008) (explaining that the defendant did not offer its
justification in its motion for summary judgment, and, therefore, did not give the plaintiff an
opportunity to respond to it). Moreover, Steels earned a master’s degree in HR in 2002,
eliminating that qualification as a possible justification. Resp., Dkt. 334 at 36. Without evidence
to support their explanation as to why Durren was paid more, Steels correctly argues that the
defendants have failed to satisfy their burden of providing a nondiscriminatory justification for
the disparity, and, therefore, she does not have to offer evidence to prove pretext. Id. at 37.
As a second comparator, Steels points out that Hite hired Gondek in November 2005 at a
starting salary of $70,008 when Steels was earning only $59,760. Id. at 37; Pl. 56.1 Resp., Dkt.
313 at 26, ¶ 40. And Steels continued to earn less than Gondek up until the point in 2007 in
which Gondek began telecommuting permanently. Pl. Resp., Dkt. 334 at 37. As with Durren,
Hite failed to provide an explanation for the difference in Gondek’s and Steels’ compensation.
Id. at 37-38. Therefore, Steels has made out a prima facie case for her compensation claims
under the indirect method of proof. Without a legitimate justification for the discrepancy
79
between Steels’ salary and those of Gondek and Durren, there is nothing for the plaintiff to rebut
as pretext. Accordingly, summary judgment on those claims is denied.
5. Steels’ Telecommuting Claim
Steels alleges that Hite denied her the opportunity to telecommute, one day per week
after the conclusion of her maternity leave, because she is African American. Resp., Dkt. 334 at
52-53.31 The defendants contend that a refusal to permit an employee to work from home is not
an adverse employment action, and therefore not actionable. Mot., Dkt. 265 at 10. The
defendants further argue that, even if actionable, Steels has failed to identify a similarly-situated
employee not in Steels’ protected group that received more favorable treatment. Id.
Steels responds that whether Hite’s denial of Steels’ request to work from home is
actionable is “a fact-specific determination.” Resp., Dkt. 334 at 53. Moreover, Steels argues that
Gondek, who was allowed to telecommute after transitioning to part-time status, is an employee
who was similarly-situated and treated more favorably. Id. Steels’ claim fails on both points,
however, as she has not offered sufficient evidence to demonstrate that Hite’s refusal to allow
her to telecommute was a “materially adverse action,” and she has not established that Gondek,
or any other employee, was similarly-situated yet treated more favorably.
“[N]ot everything that makes an employee unhappy is an actionable adverse action,”
Porter v. City of Chi., 700 F.3d 944, 954 (7th Cir. 2012) (citing Smart v. Ball State Univ., 89
F.3d 437, 441 (7th Cir. 1996)). Rather, “an adverse action must materially alter the terms or
conditions of employment to be actionable under the antidiscrimination provision of Title VII.”
Id. (citing Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)). A “materially
31
Steels was permitted to work from home in 2005, and one day per week in March and
April 2007, after Steels returned from maternity leave. Reply at 31. Hite required Steels to return
to working full time in the office on April 30, 2007.
80
adverse change might be indicated by a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a particular
situation.” Id. (citing Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.
1993)).
Steels has failed to offer any evidence that Hite’s refusal to allow her to work from home
resulted in a “materially adverse change.” See, e.g., Haas v. Zurich N. Am., No. 05 C 1421, 2006
WL 2849699, at *4 (N.D. Ill. Sept. 29, 2006) (“The fact that [the defendant] did not permit [the
plaintiff] to work from home every time she requested is…not an adverse employment
action…[because it] is not an adverse employment action to refuse to grant an employee a
discretionary benefit to which that employee is not necessarily entitled.” (citing Rabinovitz v.
Pena, 89 F.3d 482, 488-89 (7th Cir. 1996))). Furthermore, Steels has not offered evidence of any
other “indices that might be unique” to her situation, that would indicate that Hite’s requirement
that she work in the office was adverse.
For instance, Steels relies on Washington v. Ill. Dep’t of Revenue, for the proposition that
whether her claim is actionable is a “fact-specific determination.” 420 F.3d 658, 662 (7th Cir.
2005) (change in schedule actionable where plaintiff had “a vulnerability…[based on] her son’s
medical condition…[and] [w]orking 9-to-5 was a materially adverse change for her”).
Washington dealt with a retaliation claim, under which the “category of materially adverse
actions…sweeps more broadly than the ‘adverse employment actions’ required to sustain a
discrimination claim.” Porter, 700 F.3d at 957 (internal quotations omitted) (citing Benuzzi v.
Bd. of Educ. of City of Chi., 647 F.3d 652, 665 (7th Cir. 2011)). But even in that context, the
Seventh Circuit explained that changes in schedule that do not affect pay or opportunities for
81
promotion will “by and large” not be actionable. Washington, 420 F.3d at 662; see also Vance v.
Ball State Univ., 646 F.3d 461, 474 (7th Cir. 2011).
That said, there is an exception when an “employer exploits a known vulnerability of an
employee…[such that] a change in assignments, like an altered work schedule, conceivably
might amount to an adverse employment action.” Id. For instance, in Washington, “the
plaintiff…relied on her previously established flex-time schedule so she could care for her son,
who had Down syndrome.” Id. Steels, however, has not alleged similar or other facts to
demonstrate that she relied on the ability to work from home one day per week, such that the
refusal to allow her to do so materially altered the terms and conditions of her employment. See
id. (plaintiff “must allege more than a dislike…for her case to go forward”). Here, Steels argues
only that she had to resume her previous duties of working in the office after the conclusion of
her maternity leave, which is insufficient to raise even an inference of material adversity. See
also Stephens v. Erickson, 569 F.3d 779, 791 (7th Cir. 2009) (“[A] transfer or reassignment of
job responsibilities…is not materially adverse unless it represents a significant alteration to the
employee’s duties, which is often reflected by a corresponding change in work hours,
compensation, or career prospects.” (citing Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 111920 (7th Cir. 2009); Lapka v. Chertoff, 517 F.3d 974, 986 (7th Cir. 2008); Grube v. Lau Indus.
Inc., 257 F.3d 723, 728 (7th Cir. 2001); cf. Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772,
780-81 (7th Cir. 2007); Washington, 420 F.3d at 662)).
Furthermore, even if actionable, Steels has failed to demonstrate that she was treated less
favorably than a similarly-situated employee. As the defendants note, Gondek switched to a parttime schedule in April 2007, and thereafter moved to Philadelphia and began working on discrete
projects only. Pl. 56.1 Resp., Dkt. 313 at 34, ¶ 52. Part-time employees are generally not
82
similarly situated to full-time employees. See Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1155
(7th Cir. 1997) (“[F]ull-time employees are simply not similarly situated to part-time employees.
There are too many differences between them.”); Johnson v. Univ. of Iowa, 431 F.3d 325, 330
(8th Cir. 2005) (“Generally, part-time employees are not similarly situated to full-time
employees.”). Moreover, while the plaintiff argues that whether Gondek is similarly situated is
“immersed in fact disputes,” she fails to offer any evidence or citations to the record to
demonstrate those fact disputes. Such conclusory allegations are insufficient to raise a genuine
issue of material fact. See Anderson v. Donahoe, 699 F.3d 989, 996 (7th Cir. 2012); Abuelyaman,
667 F.3d at 812 (“It is well settled that conclusory allegations and self-serving affidavits, without
support in the record, do not create a triable issue of fact.” (citing Hall v. Bodine Elec. Co., 276
F.3d 345, 354 (7th Cir. 2002))). Accordingly, Steels has failed to support her claim for
discrimination based on Hite’s refusal to let her work from home under either the direct or
indirect methods of proof, and the defendants’ motion for summary judgment is granted.
6. Jones’ Discriminatory Termination Claim
Jones’ position was eliminated on October 15, 2007. See Pl. 56.1 Resp., Dkt. 312 at 47, ¶
62. Jones argues that Hite chose his position for elimination because he is African American.
Like the plaintiff’s other discrimination claims, he may proceed on his termination claim under
either the direct or indirect methods of proof. The direct method requires offering the same type
of direct evidence, previously explained, creating a “convincing mosaic” of circumstantial
evidence that supports an inference of discrimination. Under the indirect method, however, a
plaintiff in a “single discharge” or “mini-reduction-in-force” (“mini-RIF”) case “does not need to
make a showing that ‘similarly situated’ employees were treated better because the inference of
discrimination arises from the fact that they were constructively ‘replaced’ by workers outside of
83
the protected class.” Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir. 2000). Put simply,
“the inference of discrimination arises in [these] cases…where the terminated employee’s duties
are absorbed by the other employees not in the protected class.” Id.32
To establish that his duties were absorbed by employees not in his protected group, Jones
claims that Hite planned to assume his duties after his termination, along with either Radcliff, the
Director of Y-University, or VanDeventer, an HR/OD System Supervisor. Resp., Dkt. 334 at 25
(citing Pl. 56.1 App., Dkt. 326, Tab 120 at YUSA079561 (“Ogletree Report”); id., Tab 118
(“Defendants’ Second Supplemental Objections and Response to Plaintiffs’ Discovery Requests
Issued April 6, 2011”)). The evidence he relies on, however, is based on inadmissible hearsay
and portions of the record that do not support the plaintiff’s contention. As discussed above, the
plaintiff has failed to provide a foundation for the Ogletree Report, cited here, which constitutes
hearsay and hearsay-within-hearsay. Moreover, the plaintiff’s citation to the defendants’
purported response to an interrogatory contains only the defendants’ objections to that request,
and not, as the plaintiff contends, the response that Jones’ duties “would have been absorbed by
Michelle VanDeventer…and/or Elinor Hite.” See Defs. 56.1 Resp., Dkt. 375 at 21, ¶ 38. In fact,
the only evidence offered on this point is by the defendants, albeit in a declaration by Hite, that
Jones’ duties were absorbed by HR. See Pl. 56.1 Resp., Dkt. 312 at 47, ¶ 62. Jones has failed to
offer admissible evidence to prove that his duties were absorbed by employees outside of his
32
Jones argues that he was similarly situated to all other HR employees because all of
those employees were eligible for termination. Resp., Dkt. 334 at 27-28. But the Seventh Circuit
has explained that “where the plaintiff’s duties were reabsorbed by [another employee(s)] after
[the plaintiff’s] termination,” Petts v. Rockledge Furniture LLC, 534 F.3d 715, 725 (7th Cir.
2008) (internal quotation marks omitted) (citing Hemsworth v. Quotesmith.Com, Inc., 476 F.3d
487, 492 (7th Cir. 2007)), as is undisputed in this case, the court “must apply the indirect burden
shifting method for a [mini-RIF] situation.” Id. at 725. Therefore, Jones’ argument regarding
similarly-situated employees is unnecessary. See id. (explaining that district court properly
utilized the mini-RIF variation of a prima facie case under the indirect method where the
plaintiff’s duties were absorbed by other employees after her position was eliminated).
84
protected classification. Accordingly, he cannot proceed with his claim under the indirect method
of proof. See, e.g., Petts, 534 F.3d at 726 (plaintiff failed to establish the fourth prong of a miniRIF gender discrimination case because even though “some of her duties were absorbed by male
employees…some of them were [also] absorbed by women”).
That said, Jones has offered sufficient direct evidence to survive summary judgment on
his claim for discriminatory termination. As he points out, Hite drafted a reorganization chart for
the HR department on May 12, 2007, which depicted the department as she “desired” it to appear
by November 2007. Resp., Dkt. 334 at 18. On that chart, Hite wrote several “issues” that she was
presumably considering while contemplating the reorganization. The first of those issues was
“race.” Id. When asked about this chart in her deposition, Hite testified that she “always looks at
multiple factors whenever [she’s] reorganizing…including things like…race and gender.” Id.
According to Jones, this evidence is sufficient to demonstrate that Hite considered race while she
was reorganizing the HR department, and, therefore, while deciding which position(s) to
eliminate.
The defendants argue that Jones’ argument requires the Court to make an inference to
which Jones is not entitled, because he only supports the inference with speculation. Reply, Dkt.
374 at 24. According to the defendants, Hite’s testimony “that she wrote ‘race’ because she did
not want an all-white department, but instead a mix of minorities and Caucasians, to get better
teamwork, different ideas, and better reflect the Y as a whole…remains unrefuted.” Id. at 24. But
“[e]vidence which in and of itself suggests that the person or persons with the power to hire, fire,
promote and demote the plaintiff were animated by an illegal employment criterion amounts to
direct proof of discrimination.” Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997).
85
The Seventh Circuit has explained that while “evidence of discriminatory motives
must…have some relationship with the employment decision in question,” id. at 973, “remarks
and other evidence that reflect a propensity by the decisionmaker to evaluate employees based on
illegal criteria will suffice as direct evidence of discrimination even if the evidence stops short of
a virtual admission of illegality.” Id. (citing Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir.
1990) (emphasis added); Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1164-65 & nn.2-3 (7th Cir.
1993)). “Proof of this nature supports the inference that a statutorily proscribed factor…[such as]
race…was at least a motivating factor in the adverse employment action at issue.” Id. (citing
Terbovitz v. Fiscal Court of Adair Cnty., Ky., 825 F.2d 111, 115 (6th Cir. 1987); 42 U.S.C. §
2000e-2(m)). “This in turn activates a burden on the part of the employer to demonstrate that it
would have taken the same action against the plaintiff even if the proscribed criterion had played
no role in its decision,” id. (citations omitted), and the “persuasiveness of that showing will
normally be for the finder of fact to assess.” Id.
Here, the evidence and Hite’s testimony reveal a disputed question of fact regarding what
role race played in her decision to terminate Jones.33 The defendants argue that Hite’s
consideration of race was only to promote and achieve the benefits of diversity and that the
elimination of Jones’ position was to “reduce headcount in the HR Department, cut costs and
eliminate redundancies.” Mot., Dkt. 269 at 9. But Hite’s reference to “race” on her
reorganization chart is ambiguous; perhaps that is what she meant, but it is also a reasonable
inference, even from her own testimony, that she might have considered race in concluding that a
minority group was overrepresented within the HR department and that members of that group
33
Jones also relies on the list of circumstantial evidence previously addressed. See infra
65-66; Resp., Dkt. 334 at 19-22. As already discussed in relation to Jones’ other claims, this
evidence is either inadmissible, does not point directly to a discriminatory reason for an
employment decision made by Hite, or does not relate to Hite.
86
should be terminated on that basis. Whether these or other explanations are sufficient to
demonstrate that Hite would have chosen Jones’ position for elimination, even if race played no
role in the decision, is ultimately for the finder of fact. See, e.g., Whitfield v. Int’l Truck and
Engine Corp., --- F.3d ---, 2014 WL 2547772, *4 (7th Cir. June 6, 2014) (district court clearly
erred in concluding that the term “Black” written on front of personnel file was evidence of
company’s intention to promote diversity in the workforce); Venters, 123 F.3d at 973
(persuasiveness of the defendants’ showing is for the factfinder “unless the court can say without
reservation that a reasonable finder of fact would be compelled to credit the employer’s case”).
Accordingly, Jones’ claim survives summary judgment under the direct method of proof.
7. Steels’ Constructive Discharge Claim
Steels claims that she was constructively discharged from the Y when she submitted a
resignation letter on or about October 9, 2008. See Pl. 56.1 Resp., Dkt. 313 at 47, ¶ 67. “A
constructive discharge constitutes an adverse employment action.” Chapin v. Fort-Rohr Motors,
Inc., 621 F.3d 673, 679 (7th Cir. 2010) (citing Pa. State Police v. Suders, 542 U.S. 129, 147
(2004)). A constructive discharge “occurs when the plaintiff shows that [s]he was forced to
resign because [her] working conditions, from the standpoint of the reasonable employee, had
become unbearable.” Id. (citing Suders, 542 U.S. at 147).
The Seventh Circuit has recognized two forms of constructive discharge. Id. The first
occurs when “an employee resigns due to alleged discriminatory harassment.” Id. But those
cases “require a plaintiff to show working conditions even more egregious than that required for
a hostile work environment claim because employees are generally expected to remain employed
while seeking redress…thereby allowing an employer to address a situation before it causes the
employee to quit.” Id. (citing Roby v. CWI, Inc., 579 F.3d 779, 785 (7th Cir. 2009); Boumehdi v.
87
Plastag Holdings, LLC, 489 F.3d 781, 789-90 (7th Cir. 2007)); see also Smith, 681 F.3d at 908
(“A constructive discharge occurs when working conditions become so unbearable that an
employee is forced to resign.”); Ellis v. CCA Of Tenn. LLC, 650 F.3d 640, 650 (7th Cir. 2011)
(“Establishing constructive discharge is more difficult than establishing a hostile work
environment.” (citation omitted)). And to show a “hostile work environment,” the plaintiff must
demonstrate “that the [employer’s] conduct was ‘sufficiently severe or pervasive to alter the
conditions of [her] employment.’” Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 978 (7th
Cir. 2009) (citing Suders, 542 U.S. at 133)). Examples of “egregious” working conditions that go
beyond a hostile working environment generally include threats to personal safety. Chapin, 621
F.3d at 679 (citing Porter v. Erie Foods, Int’l, Inc., 576 F.3d 629, 640 (7th Cir. 2009) (claim for
constructive discharge possible where harassment included repeated use of noose and implied
threats of physical violence); Taylor v. W&S Life Ins. Co., 966 F.2d 1188, 1198-99 (7th Cir.
1992) (constructive discharge where supervisor made racial jokes and brandished a firearm, held
it to the plaintiff’s head, then took a photo and made racial jokes about it at a staff meeting)); see
also Brooms v. Regal Tube Co., 881 F.2d 412, 417 (7th Cir. 1989) (finding constructive
discharge where the employee’s human resource manager repeatedly showed her racist
pornographic photos and made threatening comments to her, including a threat to kill her).
The second form of constructive discharge occurs “[w]hen an employer acts in a manner
so as to have communicated to a reasonable employee that she will be terminated.” Chapin, 621
F.3d at 679 (citing E.E.O.C. v. Univ. of Chi. Hosps., 276 F.3d 326, 332 (7th Cir. 2002)). In this
situation, the employer’s conduct may amount to a constructive discharge if the employee
resigns. Id. But the employee must still demonstrate that her working conditions were
“intolerable,” id., and working conditions do not become intolerable merely because a “prospect
88
of discharge lurks in the background.” Id. (citing Cigan v. Chippewa Falls Sch. Dist., 388 F.3d
331, 333 (7th Cir. 2004)); see also Swearnigen-El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852,
859 (7th Cir. 2010) (“[The Seventh Circuit has] clarified that ‘the prospect of being fired at the
conclusion of an extended process’ without more, does not meet [the] standard [for constructive
discharge].” (quoting Cigan, 388 F.3d at 333-34)). Rather, the employee must reasonably believe
that “had [s]he not resigned, [s]he would have been immediately fired.” Chapin, 621 F.3d at 680.
In other words, the plaintiff must offer evidence that a “firing” was “an imminent and inevitable
event.” Id.
The defendants contend that Steels cannot establish a constructive discharge claim
because her working conditions were not intolerable, and because she secured alternative
employment before she resigned from the Y. Mot., Dkt. 265 at 11. However, Steels responds that
the defendants erred by stating that a constructive discharge can only be established “if abusive
working conditions are ‘even more egregious than the higher standard for hostile work
environment,’” i.e., the “discriminatory harassment” standard. Resp., Dkt. 334 at 55. But while
Steels suggests that the “discriminatory harassment” standard is not applicable to her claim, see
id. at 59, or perhaps, that she can prove her claim under some other legal framework, she only
cites to older cases that articulate the same standard cited by the defendants. See id. at 56 (citing
Hunt v. City of Markham, 219 F.3d 649, 655 (7th Cir. 2000); EEOC v. Miller Brewing Co., 650
F. Supp. 739, 747 (7th Cir. 1986)). As such, it is not entirely clear under which standard of
constructive discharge Steels asserts her claim. She argues that the “discriminatory harassment”
standard is not the only possible legal framework for her claim, but then fails to argue that her
claim was “imminent” under the second, and only other recognized, form of constructive
discharge discussed above.
89
Instead, Steels argues that she was forced to quit because it became clear to her that, if
she was going to advance her career, she would have to leave the Y. To support this argument,
she offers numerous bits of evidence, such as (1) a PowerPoint presentation addressed to the
Board of Directors which concluded that the Y’s “performance management system negatively
impacted minorities,” Pl. 56.1 App., Dkt. 326, Tab 24 at ¶ 5-6 (“Declaration of Nicole Steels—
April 29, 2012”), (2) “the long pattern of discriminatory conduct to which [she] was subjected,”
Resp., Dkt. 334 at 58, (3) the contention that the Y paid [her] less than her counterparts, id., and
(4) the allegations that Hite “regularly belittled, marginalized and harassed [her].” Id. Moreover,
the plaintiff places great weight on handwritten notes (which she did not see contemporaneously)
in which Hite apparently wrote “runs to JNJ [James Jones]…anybody else, take the hint +
leave.” Id. at 16; Pl. Stmt. of Add’l Facts, Dkt. 313 at 62, ¶ 27. According to Steels, this evidence
is sufficient to show that Hite was attempting to force Steels out of the organization.
But this and Steels’ other circumstantial evidence fails to rise to the level of “egregious”
work conditions, above and beyond those of a hostile work environment which itself requires
“severe and pervasive harassment,” sufficient to demonstrate that she was essentially forced to
resign. See, e.g., Chapin, 621 F.3d at 679 (one threat and raised voices insufficient to state a
hostile work environment claim, and therefore insufficient as a basis for a constructive discharge
claim); Patton v. Indianapolis Pub. Sch. Bd., 276 F.3d 334, 339 (7th Cir. 2002) (holding that
plaintiff failed to show a hostile work environment where supervisor “treated her in a rude,
abrupt, and arrogant manner, ignored her work-related suggestions and failed to keep her
informed about changes at work” and explaining that “[m]any employees have to put up with
some amount of rude, arrogant, or boorish behavior at work”); cf. Parrett v. City of Connersville,
Ind., 737 F.2d 690, 694 (7th Cir. 1984) (constructive discharge where plaintiff was forced to sit
90
in a windowless room that was formerly a broom closet and spend his entire shift doing nothing);
Fitzpatrick v. Raymond Mgmt. Co., No. 10 C 252, 2011 WL 5403497, at *3 (N.D. Ill. Nov. 08,
2011) (“The rare cases in which harassment is so extreme that the employee is excused from
remaining on the job usually involve threats of physical violence.” (citations omitted)). And as
explained above, Steels has failed to show Hite’s allegedly rude or overbearing behavior was
based on racial animus or discrimination with admissible evidence.
While the Seventh Circuit has held that a “person who is told repeatedly that [s]he is not
wanted, has no future, and can’t count on ever getting another raise would not be acting
unreasonably if [s]he decided that to remain with [her] employer would necessarily be
inconsistent with even a minimal sense of self-respect, and therefore intolerable,” Hunt, 219 F.3d
at 655, Steels has not offered this type of evidence. Indeed, the record indicates that the Y hired
an outside law firm to investigate her complaint and hired a coach to assist with her professional
relationship with Hite. More importantly, her claim that her working conditions were so
unpleasant that she was compelled to resign is undercut by the fact that she delayed her start at
her new employer, Wrightwood Capital, to assist her co-workers and the incoming interim
director, after Hite had left. See Pl. 56.1 App., Dkt. 326, Tab 24 at ¶ 10-11. Had Steels truly felt
compelled to resign based on Hite’s conduct, viewed in the aggregate with her other claims of
discrimination, she would have done so prior to Hite leaving the organization. Accordingly, a
reasonable factfinder could not conclude that, at the time Steels resigned, she did so because
Hite’s criticisms and conduct had made the working environment intolerable. See, e.g., Lifton v.
Bd. of Educ. of the City of Chi., 416 F.3d 571, 578 (7th Cir. 2005) (“The doctrine of constructive
discharge is limited to egregious cases, such as, for example, where an employee is subjected to
91
threats or repeated racist taunting.” (citing Tutman v. WBBM-TV, Inc., 209 F.3d 1044, 1050 (7th
Cir. 2000))).
Moreover, while Steels has offered sufficient evidence to survive summary judgment on
her base and 2006 compensation claims, unequal pay, standing alone, is not enough to constitute
a constructive discharge. See Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974, 978 (11th
Cir. 2003) (citing Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1077 (5th
Cir. 1981)); White v. Dial Corp., 52 F.3d 329 (7th Cir. 1995) (unpublished opinion) (citing
Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65-66 (5th Cir. 1980) (unequal pay and
disappointment at failure to receive expected pay raise not sufficient to establish constructive
discharge)); Fisher v. Conrad, 985 F.2d 559 (6th Cir. 1993) (unpublished opinion) (“a failure to
promote, an unlawful transfer, or unequal pay, standing alone, does not amount to a constructive
discharge.”) (citing Irving v. Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir. 1987));
Jurgens v. E.E.O.C., 903 F.2d 386, 391 (5th Cir. 1990) (unequal pay may be relevant, but alone
insufficient, to constitute constructive discharge (citing Jett v. Dallas Indep. Sch. Dist., 798 F.2d
748, 755 (5th Cir. 1986))). Furthermore, courts have held that an “employer has not effected a
constructive discharge because an employee believes that she has lost respect or credibility
within the company or that she has limited opportunity for advancement.” See Chaddah v. Harris
Bank Glencoe-Northbrook, No. 93 C 397, 1994 WL 75515, at *3 (N.D. Ill. Mar. 08, 1994)
(citing Schaulis v. CTB/McGraw-Hill, Inc., 496 F. Supp. 666, 676 (N.D. Cal. 1980)). But that
does not even appear to be the case here. Rather, what the evidence offered by both parties
indicates is that Steels began considering leaving the Y sometime after Hite assumed the position
of director, Reply, Dkt. 380 at 10 n.6, and then she remained on the job until she could secure a
higher paying position with another employer; and not that her claims of unequal pay created
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“such an aggravated situation that…[she reasonably felt] forced to resign.” See, e.g., Jett, 798
F.2d at 755.
Furthermore, although it does not appear that Steels is pursuing her claim under the
“inevitable termination” form of constructive discharge, Hite’s handwritten note, alone, is
insufficient to show that Steels reasonably believed that her termination was “imminent.” There
is no evidence that Steels was aware of the note, nor is there evidence that Hite or anyone else at
the Y had communicated to Steels that her termination was imminent or inevitable. See, e.g,
E.E.O.C. v. Univ. of Chi. Hosps. 267 F.3d at 332 (holding that a constructive discharge claim
could move forward where the employee returned to work to find her belongings packed and her
office being used as storage, her supervisor was fired for refusing to fire her, she received sudden
negative performance evaluations, and was told that a minor mistake was “the last straw”);
Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 502 (7th Cir. 2010) (constructive
discharge where it was undisputed by both parties that if the employee had not resigned, he
would have been terminated immediately). And even if Hite was planning to immediately fire
Steels, Steels resigned after Hite had left the Y, and therefore, after the threat of an immediate
termination was eliminated. See Pl. 56.1 App., Dkt. 326, Tab 24 at ¶ 10. In other words, a
reasonable finder of fact could not conclude that the “handwriting was on the wall” or that “the
axe was about to fall,” with respect to Steels employment at the Y. See Chapin, 621 F.3d at 680
(no constructive discharge where the plaintiff had “quit after the axe had been put away” (citing
Lindale v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir. 1998)). Accordingly, Steels has failed to
offer sufficient evidence to demonstrate that she was constructively discharged, and the
defendants’ motion for summary judgment on this claim is granted.
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8. Jones’ and Steels’ Retaliation Claims
In addition to alleging that the employment actions in this case were based on
discrimination, the plaintiffs also allege that many of them were retaliatory. To prevail on a
claim for retaliation, the plaintiffs may proceed under either the direct or indirect method. Under
the direct method, the plaintiffs must show that they (1) “engaged in protected activity,” (2) “that
they suffered an adverse employment action,” and (3) “that there is a causal link between their
protected activity and the adverse action.” Brown, 700 F.3d at 1106 (citing Coleman, 667 F.3d at
859). While “the category of ‘materially adverse actions’…sweeps more broadly than the
‘adverse employment actions’ required to sustain a discrimination claim,” Porter, 700 F.3d at
957 (citing Benuzzi, 647 at 665), an employment action in the retaliation context “is only adverse
if it might dissuade a reasonable worker from making or supporting a charge of discrimination.”
Brown, 700 F.3d at 1106-07 (citing Burlington N., 548 U.S. at 68). Causation may be shown
with evidence that the plaintiffs’ protected activities were a “substantial or motivating factor” in
the employer’s action. See Naficy, 697 F.3d at 512 (citing Coleman, 667 F.3d at 860). And
“[l]ike a discrimination claim, proving a retaliation claim under the indirect method requires
evidence that a similarly situated employee who did not engage in the statutorily protected
activity received better treatment.” Brown, 700 F.3d at 1106 (citing Harper, 687 F.3d at 309-10).
The Court can quickly dispose of Jones’ retaliation claim under the indirect method. The
defendants moved for summary judgment on this claim, arguing that Jones could not identify any
similarly-situated employees who were treated more favorably. Mot., Dkt. 269 at 14. While the
defendants’ argument that no employee could be similarly situated to Jones, because Jones was
the only director-level employee under Hite, is incorrect, Jones has failed to identify, or even
attempt to identify, any similarly-situated employees who were treated more favorably in his
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response. See Resp., Dkt. 334 at 32. Specifically, Jones responds only that “Defendants rely
exclusively on their arguments made in connection with Jones’ discrimination claims.” Id. That
may be true, but the plaintiff must still satisfy his burden of establishing a prima facie case, and
to the extent that Jones contends that he was similarly situated to all employees in HR or at the Y
as a whole, he has not met his burden of production, as explained above. See infra 70-71.
Accordingly, because Jones has not offered evidence to establish a requisite element of a prima
facie case, he cannot prevail on his retaliation claim under the indirect method.
Jones’ retaliation claim also fails under the direct method. Jones alleges that he engaged
in protected activity when he (1) “oppos[ed] conduct he believed to be racially discriminatory”
by discussing that conduct with Hite, which involved Hite’s treatment of Steels and Yvonne
Bibbs,34 Resp., Dkt. 334 at 31, (2) sent an email to Hite on September 8, 2007 expressing
concern over racial discrimination, id. at 30, and (3) participated in an interview with lawyers
from Ogletree on October 10, 2007 concerning Steels’ complaint.35 Id. In retaliation for engaging
34
The defendants argue that Jones contradicted his deposition testimony regarding this
conversation, and that, based on his deposition, his conversation with Hite only involved Jones
expressing the concern that “there was a perception being put out that the issues in the [HR]
department were based on race.” Reply, Dkt. 374 at 31. According to the defendants, this
statement is “far too vague to constitute protected activity.” Id. The Court does not need to
decide whether Jones has offered sufficient evidence to establish that his conversation with Hite
was protected activity because, as explained below, Jones has failed to offer sufficient facts or
argument to connect this activity with retaliation—i.e., establish causation.
35
As the defendants argue, Jones failed to respond to the defendants’ motion for
summary judgment or otherwise argue that the following conduct constituted protected activity:
(1) opposing findings of Hite’s investigation of Horsey’s review; (2) seeking to change merit
increases for some employees in 2006 and 2007; (3) questioning or calling for adverse impact
review of the merit system; (4) opposing a referral program; and (5) following up on a
department’s concerns about promotion and compensation issues impacting minorities. See
Reply, Dkt. 374 at 30. By failing to respond, present facts, and argue that these activities
constituted protected activities, Jones has waived his claims of retaliation based on these acts.
See, e.g., Milligan, 686 F.3d at 389 (plaintiff forfeited reliance on evidence not raised in
opposition brief to summary judgment) (citing Liberles, 709 F.2d at 1126 (“It is a well-settled
rule that a party opposing a summary judgment motion must inform the trial judge of the
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in these protected activities, Jones alleges that Hite assigned him the lowest pay increase in the
department and that his position was eliminated in October 2007. Id. at 32.
As an initial matter, and as explained above, Jones has failed to offer sufficient evidence
to demonstrate that his performance evaluations and merit increases were materially adverse. See
infra 71. For example, in 2005, Jones received a 3% merit increase and a rating of “meets
expectations.” Pl. 56.1 Resp., Dkt. 312 at 32, ¶ 42. In 2006, Jones received a 5.5% merit
increase, plus an additional $2,500, which he admits was granted in part to satisfy his request for
an equity salary increase that year. Id. at 37, ¶ 51. Then in 2007, Jones received a 3% increase
and rating of “meets expectations.” Id. at 37, ¶ 52. But Jones offers no evidence or objective
criteria upon which to base an inference that he should have received or would have received a
higher rating and merit increase but for his alleged protected activity. Moreover, Jones failed to
identify any similarly-situated employees who were treated more favorably or offer evidence
that, for instance, highly favorable evaluations and merit increases were considered the norm. In
this context, without more, it is difficult to imagine a scenario in which receiving a positive
performance evaluation and 3% merit increase would deter a reasonable employee from
engaging in future protected activity. Therefore, if Jones’ retaliation claim is to proceed, it must
be based on his termination, which clearly was an adverse employment action. See Tomanovich
v. City of Indianapolis, 457 F.3d 656, 664 (7th Cir. 2006).
Relying on “suspicious timing,” Jones argues that “[d]rawing all inferences in [his] favor,
a jury could determine Hite decided to eliminate [his] position in short period [sic] after his
reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and
loses the motion, it cannot raise such reasons on appeal.”); Chi. Reg. Council of Carpenters v.
Village of Schaumberg, 644 F.3d 353, 356 (7th Cir. 2011) (same); India Breweries, Inc v. Miller
Brewing Co., 612 F.3d 651, 659 n.2 (7th Cir. 2010) (same); Amrhein v. Health Care Service
Corp., 546 F.3d 854, 859 (7th Cir. 2008) (same); Domka v. Portage Cnty., Wis., 523 F.3d 776,
783 (7th Cir. 2008) (same)).
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September 8, 2007 e-mail and follow-up conversations with Hite,” regarding Jones’ concerns
about racial discrimination at the Y. Resp., Dkt. 334 at 33. “[S]uspicious timing alone[,]
[however,] rarely is sufficient to create a triable issue,” Tomanovich, 457 F.3d at 665 (citing
Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 905 (7th Cir. 2005)), and “mere temporal proximity
is not enough.” Id. (citing Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th Cir.
2004)). Therefore, as further evidence, Jones also argues that prior to his August review, Hite
had described him as having “very solid OD skills and HR generalist skills,” but after he
expressed his concern with the “disparate results he found in the merit increases,” he was
suddenly described as “divisive,” “insubordinate,” and “argumentative.” Dkt. 334 at 33.
According to Jones, his conduct also led “Hite to question what he was doing…behind her back
and accuse [him] of encouraging people to sue the Y.” Id.
The problem with the plaintiff’s contention, however, is that Jones’ declaration belies his
argument that he was terminated after he voiced concerns about racial discrimination. In his
declaration, Jones admits that “[w]hen [he] met with Ms. Hite in late August 2007 to discuss
[his] review, she did mention my position would be eliminated.” Dkt. 325, Tab 30 at ¶ 16. By
Jones’ own admission, then, that decision must have been made, or at least was under active
consideration, prior to the protected activity that he relies upon to make out his claim for
retaliation (which began the following month) and there is no way the protected activity could
have been a “substantial or motivating factor” in the elimination of Jones’ position. See, e.g.,
Tomanovich, 457 F.3d at 664 (defendants’ decision to place the plaintiff on a performance plan
could not have been retaliation for the plaintiff’s later EEOC filings). Accordingly, Jones has
failed to establish a claim for retaliation, and the defendants’ motion for summary judgment on
this claim is granted.
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Steels, on the other hand, argues that she can prevail on a claim for retaliation based on
“events occurring after her September 2007 complaint to Nicoll regarding race discrimination
and her December 2007 EEOC charge.” Resp., Dkt. 334 at 53. In retaliation for engaging in
these protected activities, Steels alleges that she suffered materially adverse actions in the form
of (1) not being paid as much as Durren, who Hite hired as a Senior HR Generalist, (2) Hite’s
posting of a Senior HR Generalist position with a starting salary higher than Steels’ salary, (3)
not being selected for supervisory opportunities or the interim director position, and (4) her
constructive discharge.
On this claim, Steels proceeds only under the direct method, as she has not attempted to
satisfy the elements of a prima facie case under the indirect method in her response. See Resp.,
Dkt. 334 at 53-55. Under the direct method, the defendants apparently concede that Steels’ letter
to Nicoll and the EEOC complaint constituted protected activities because they do not reply to
those arguments. See also Henson v. T-Mobile USA, No. 12 C 3845, 2013 WL 1154434, at *7
(N.D. Ill. Mar. 18, 2013) (“Complaining to an employer about impermissible discrimination and
filing a charge of discrimination with the EEOC are statutorily protected activities.” (citing
Tomanovich, 457 F.3d at 663)). That said, Steels has not offered evidence that she was qualified
for the position of interim director (or even that she applied for the position); and even if she had,
that vacancy occurred in September 2008, nine months after Steels filed her EEOC charge. See,
e.g., Milligan, 686 F.3d at 390 (no causation where alleged retaliation occurred six months after
the plaintiff’s last sexual harassment complaint). Moreover, as explained above, she has not
established a claim for constructive discharge. Therefore, to prevail on her retaliation claim, she
must demonstrate that posting an opening for a Senior HR Generalist at a higher salary range
98
than she was earning at the time and hiring Durren at a salary higher than Steels was earning
were materially adverse actions.
Hite hired Durren on January 1, 2008, shortly after Steels had filed her EEOC charge and
weeks after Ogletree had concluded its investigation of Steels’ complaint. As explained above,
whether this hiring decision can be considered materially adverse depends on the context of the
situation. Here, Steels had complained to Nicoll that she was experiencing a hostile and
intimidating work environment because of Hite’s management. Steels and Hite had been
working with a coach to resolve their issues and improve their communication when Steels filed
an EEOC charge complaining of inequities in the terms and conditions of her employment based
on race. Shortly afterward, Ogletree concluded its investigation of Steels’ complaint.
As evidence of retaliatory motive, Steels also points to handwritten notes made by Hite,
which Steels contends were made shortly after Hite learned about Steels’ complaint. Specifically,
Hite wrote that it was “intrig[uing] [Steels] felt this way since 8/05” and described Steels as
“insubordinate, subversive, [and] distrustful.” See Defs. 56.1 Resp., Dkt. 381 at 15, ¶ 27. The
defendants dispute that these notes were written after Hite learned about Steels’ complaint. See
id. at 16. However, based on the wording of the notes themselves, and the fact that Hite testified
that she could not remember when she wrote them, there is at least a fact issue concerning the
timing of when the notes were written.
Within this context, though marginal, hiring a new employee into the same position as
Steels at a higher salary shortly after she had complained about inequities, could potentially
dissuade a reasonable employee from filing a future charge of discrimination, by sending the
message that Steels would never achieve pay equity. See Pubentz v. Holder, No. 10 C 7722,
2013 WL 812377, at *14 (N.D. Ill. Mar. 5, 2013) (“The standard for what constitutes an adverse
99
employment action is more flexible in a retaliation claim than in a discrimination claim.” (citing
Burlington, 548 U.S. at 69)). This is supported by the fact that, as explained above, the
defendants have failed to offer a legitimate nondiscriminatory reason for the discrepancy
between Steels’ and Durren’s salaries at the time. See infra 78-79.
Given the general nature of Steels’ complaint and EEOC charge—that she was
experiencing inequities in the terms and conditions of her employment—and the temporal
proximity of Hite’s hiring decisions, a reasonable jury could find that Steels’ protected activities
were a motivating factor in Hite’s decisions. Accordingly, Steels may proceed on her claim of
retaliation in connection with Hite’s hiring of Durren, and the defendants’ motion for summary
judgment on this claim is denied.
E. Iona Toles
The defendants argue that Toles cannot prevail on her discriminatory pay or failure-topromote claims because she has failed to adduce sufficient admissible evidence to support her
claims under either the direct or indirect method of proof. The defendants have also moved for
summary judgment on several other purported claims, arguing that: (1) Toles’ claim that she was
not promoted to a Contact Center leadership position in 2001 is time-barred, Defs. Mot., Dkt.
273 at 3; (2) there is no evidence that Toles’ move from the fourteenth to the fifteenth floor was
racially discriminatory, id. at 6; (3) Toles cannot show that she received racially discriminatory
performance evaluations, id. at 7; and (4) that Toles’ failure-to-train claims are meritless. Id. at
13. In her response, however, Toles states that the Y discriminated against her in five ways
relating to pay and promotions: “(1) intentionally paying her less than white employees; (2)
paying her less than white employees regardless of intent (disparate impact claim); (3) failing to
‘promote’ her in 2008 into a job she already held; (4) failing to promote her to one of the 2010
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conference center coordinator positions; and (5) failing to promote her to the [Contact Center]
team lead position [in 2010].” Pl. Resp., Dkt. 318 at 1.
As the plaintiff argues, the defendants did not move for summary judgment on the
plaintiffs’ disparate impact claim or the third failure-to-promote claim regarding the 2010
Contact Center team lead position.36 As such, summary judgment on those claims is denied. On
the flip side, to the extent that Toles concedes she is not pursuing, or that Toles has failed to
respond to, the 2001 failure-to-promote claim, failure-to-train claim, performance evaluation
claim, and the separate claim concerning her move to the fifteenth floor (apart from the 2008
failure-to-promote claim to which those facts are related), summary judgment is granted.
For the reasons set forth below, the defendants’ motion for summary judgment on Toles’
remaining claims is granted in part and denied in part.
1. Compensation Claims
Toles argues that she has enough circumstantial evidence under the direct method of
proof to show that she was paid discriminatorily low compensation and merit increases
throughout her tenure at the Y. Generally, she contends that the Y failed to pay her
commensurately with other Caucasian administrative employees and failed to place her in Pay
36
The defendants did not address the claim concerning the Contact Center team lead
position in their brief in support of their summary judgment motion. They contend, however, that
because they included in their Statement of Facts (No. 55) a statement and evidence rebutting
this claim, that they adequately raised the issue. The Court disagrees; the defendants offered no
argument in support of granting judgment on this claim and that failure constitutes a forfeiture of
the argument. See Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (failure to raise
argument in opening brief forfeits that argument). The Court notes as well that the defendants’
argument that this alleged failure to hire cannot constitute an adverse employment action, Reply
at 8, is simply wrong; the plaintiff’s burden under the indirect method can be established either
by showing that the position was filled by someone outside of the plaintiff’s protected class or if
the position remained vacant. See, e.g., Koszola v. Bd. of Ed. of City of Chi., 385 F.3d 1104, 1110
(7th Cir. 2004). Accordingly, this claim survives the defendants’ motion for summary judgment.
101
Grade B as an experienced administrative employee, despite her many years of service with the
organization.
To support her claims, Toles attempts to adduce evidence that (1) similarly-situated
employees not in her protected group were treated more favorably (i.e., they were paid more,
received greater merit increases, and received raises more quickly) in 2005, 2007, and 2009, Pl.
Resp., Dkt. 318 at 19, (2) Snell allocated the Contact Center a lower percentage of his available
merit increase pool because it was comprised mainly of African American employees, id. at 1920, and that (3) Snell gave all Caucasian employees higher performance ratings and merit
increases than all African American employees under his supervision. Id. at 20-21. Further,
Toles points out that despite her years of service and experience at the Y, she was never
promoted to Pay Grade B, the pay classification for “experienced administrative personnel.” Id.
at 4.
Despite this evidence, however, Toles has failed to meet her burden of proof under either
method of proof because she has not adequately identified and produced evidence of similarlysituated employees not in her protected class who were treated more favorably. Toles contends
that Caucasian employees Susan Jarocki, Brenda Welker, and Terrence Roche, were all paid
more and received raises and promotions faster than she did. Pl. Resp., Dkt. 318 at 17-18. She
fails, however, to offer sufficient admissible evidence that she was similarly situated to each, or
any, of these employees in all material respects—particularly with regard to job responsibility,
supervisor, and department. See Bio, 424 F.3d at 597 (“A similarly situated employee is one who
is directly comparable to [the plaintiff] in all material respects.” (internal quotations omitted)
(citing Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002))).
102
Toles’ comparison to Jarocki illustrates this point. According to Toles, Jarocki joined the
Y in 1992, one year after Toles, but was moved into Pay Grade B in 2006, Pl. Resp., Dkt. 318 at
17-18, while Toles remained in Pay Grade A. Toles has not adduced evidence, however, of who
made the personnel decision to place Jarocki in Pay Grade B, what duties and responsibilities
Jarocki held at the time she was promoted, in which department Jarocki worked, and to whom
Jarocki reported. Without these facts, a reasonable factfinder could not determine that Toles and
Jarocki were similarly situated in 2006 or any other time period. See, e.g., Dority, 2001 WL
1155286, at *14 (“a plaintiff must provide specific evidence and specific examples of employees
who have been treated more favorably” (citing Harris, 1998 WL 704056, at *3)).
Toles does identify one similarly-situated employee, Dorrie Ferguson. Both Toles and
Ferguson worked in the Contact Center and were supervised by Snell. See Pl. Resp., Dkt. 318 at
20. Toles asserts that Snell gave Ferguson a 3.3 performance rating and a 4.2% merit increase
and Toles a 2.3 performance rating and 2.7% merit increase for that year. However, Toles runs
into trouble again because she has failed to support these facts with admissible evidence. As the
defendants object, the information relating to Ferguson, and the other comparators for that
matter, is based on a spreadsheet that lacks authentication and foundation.37 See Defs. 56.1
Resp., Dkt. 378 at 22-23, ¶¶ 53-54. See Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 603 (7th
Cir. 2012) (“To survive summary judgment, the nonmovant must produce sufficient admissible
evidence, taken in the light most favorable to it, to return a jury verdict in its favor.” (emphasis
added) (citing Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010))).
37
The plaintiffs submitted these spreadsheets without any attempt to establish their
authenticity. From what can be gleaned from the record, the plaintiffs offer the spreadsheets as
“Business Records.” See Pl. App., Dkt. 326 at 7 (listing the spreadsheets under “Other Business
Records”). The plaintiffs then submitted the spreadsheets on a CD-ROM in their native
Microsoft Excel format.
103
Rather than adduce evidence that shows Toles was similarly situated to each of her
comparators in every material respect, she again relies on the same faulty argument offered by
Plaintiffs Jones and Steels—that she is similarly situated to every single administrative employee
at the Y because CEO Nicoll reviewed and had final approval over all salaries, performance
scores, and merit increases. See Pl. Resp., Dkt. 318 at 17. She further contends that she is
similarly situated to all other administrative employees because all entry level administrative and
clerical personnel fall into Pay Grade A. See id. As explained above, this argument misconstrues
the applicable law on comparators, and is therefore an insufficient basis on which to survive
summary judgment. At bottom, without evidence of material similarity, this Court cannot, and a
jury could not, make a reasonable inference that Toles was not paid as much as the offered
comparators—or any other Y employee—because of her race.
Further, to the extent that Toles has generally asserted pay discrimination claims based on
her failure to be moved or promoted into Pay Grade B, she has failed to support that claim with
direct or circumstantial evidence. For instance, Toles contends that Snell gave all Caucasian
employees higher merit increase and performance ratings than all African American employees
under his supervision. Pl. Resp., Dkt. 318 at 19-20. These facts, if supported by admissible
evidence, could have potentially served as circumstantial evidence that Snell was discriminating
against African American employees, including Toles. See, e.g., King, 678 F.3d at 473 (plaintiff
established a pay discrimination claim where the plaintiff showed that “[a]ll of the men were
paid more than all but one of the women—and the one woman achieved her $60,000 salary only
after six years on the job, while men exceeded the $60,000 line faster”). But, again, Toles has not
adduced sufficient admissible evidence to support that claim—all of the evidence related to the
purported comparators is based on the inadmissible spreadsheets that lack both foundation and
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authentication. As such, there is simply no evidence upon which this Court, or a jury, could base
an inference of racial discrimination. Accordingly, the defendants’ motion for summary
judgment on Toles’ pay discrimination claims is granted.
2. Failure-to-Promote Claims
Like other discrimination claims, a failure-to-promote claim may be proven through
either the direct or indirect method. See Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir.
2008) (citing Volovsek v. Wis. Dep’t of Agric., Trade, & Consumer Prot., 344 F.3d 680, 689, 692
(7th Cir. 2003)). The defendants argue that Toles lacks direct or circumstantial evidence of
discrimination, and, therefore, must proceed under the indirect burden-shifting method of proof.
Id. Toles, on the other hand, contends that she may prove her claim under either method.
“Failure to promote can be an adverse action giving rise to liability.” Hill, 625 F.3d at
1003 (citations omitted). As explained above, to survive summary judgment on an intentional
discrimination claim under the direct method, “a plaintiff must offer direct evidence of
discrimination—an outright admission that an action was taken for discriminatory reasons—or
circumstantial evidence that points to discriminatory animus through a longer chain of
inferences.” Everett v. Cook Cnty., 655 F.3d 723, 729 (7th Cir. 2011) (citing Van Antwerp v. City
of Peoria, Ill., 627 F.3d 295, 298 (7th Cir. 2010)). “Circumstantial evidence can take on many
forms, and includes ‘evidence that the employee was qualified for the job in question but was
passed over in favor of a person outside the protected class and the employer’s reason is a pretext
for discrimination.’” Id. (citing Sun v. Bd. of Trs., 473 F.3d 799, 812 (7th Cir. 2007)). But
“[w]hatever circumstantial evidence is offered must, in the end, ‘point directly to a
discriminatory reason for the employer’s action.’” Id. (citing Adams v. Wal-Mart Stores, Inc.,
324 F.3d 935, 939 (7th Cir. 2003)).
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To survive summary judgment on a failure-to-promote claim using the indirect method,
the plaintiff must show “1) [s]he belongs to a protected class, 2) [s]he applied for and was
qualified for the position sought, 3) [s]he was rejected for that position[,] and 4) the employer
granted the promotion to someone outside of the protected group who was not better qualified
than the plaintiff.” Fischer, 519 F.3d at 402 (citing Grayson v. City of Chi., 317 F.3d 745, 748
(7th Cir. 2003)). Once that prima facie case is established, the burden shifts to the defendants to
offer a nondiscriminatory justification for their employment action. Id. (citing Emmel v. CocaCola Bottling Co., 95 F.3d 627, 629 (7th Cir. 1996)). If the defendants meet their burden, the
plaintiff must present evidence to show that the defendants’ proffered explanation is pretext for
discrimination. Id. (citing Emmel, 95 F.3d at 629).
Toles alleges that the Y discriminatorily failed to promote her on three occasions. Pl.
Resp., Dkt. 318 at 7. First, in 2008, the Y failed to promote her to the “restructured” front desk
Receptionist/Data Processing Clerk position. Id. Second, in 2010, the Y failed to promote Toles
to one of the Conference Center Coordinator positions. Id. And last, sometime in 2010, the Y did
not promote Toles to a Contact Center team lead position. Id.
a. 2008 Front Desk Receptionist/Data Processing Position
Sometime in 2008, Toles’ position in the main reception area on the fourteenth floor of
the Y’s offices, where visitors were greeted, was “restructured.” According to the Y, the new
position on the fourteenth floor was changed to include a greater focus on typing and data entry
skills and less emphasis on receptionist and call center skills. Def. Mot., Dkt. 273 at 4. The new
position was also categorized in Pay Grade B, while Toles’ position at the time was in Pay Grade
A. Defs. 56.1 Resp., Dkt. 378 at 5, ¶ 10. Under the Y’s Salary Administration Guidelines,
moving from Pay Grade A to Pay Grade B is considered a promotion. Id. at 10, ¶ 24. As a result,
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compared to Toles’ then current position, the new Receptionist/Data Processing Clerk job
offered the opportunity to earn more compensation over time.38
After the new position was created, Toles and Johanna Pistell, a younger Caucasian
woman, applied for the job. Pl. Resp., Dkt. 318 at 3, 8-9. Both candidates took a typing test, with
Pistell receiving a higher score than Toles. Id. at 8. Toles also interviewed with both Snell and
Jensen, the supervisor to whom, according to the Y, the new position would report. Pl. 56.1
Resp., Dkt. 311 at 30, ¶ 47. Because Pistell outperformed Toles on the typing test and had greater
technical skills needed for data entry, she received the promotion. Id. at 31, ¶ 48.
The defendants contend that these facts end the matter—Pistell performed better on the
typing test, had greater technical skill, and was therefore more qualified for the new position.
Defs. Reply, Dkt. 377 at 9-10. However, Toles does not dispute that the Y created the new
position, that the new position’s job description was written to require data entry and technical
skills, or that Pistell performed better on the typing test. What Toles does dispute, however, is the
legitimacy of the reason for the creation of the new position, and its purported data entry skill
requirements, in the first place. According to Toles, the creation of the new position was “a ruse”
designed to remove Toles from the fourteenth floor station, where visitors were greeted, because
the Y did not believe that she projected the “right image,” Pl. Resp., Dkt. 318 at 8, and that the
“new position” was really the same as the old position Toles had occupied for several years. Id.
at 9. After Pistell was chosen for the new Receptionist/Data Processing Clerk job, Toles’ desk
was moved to the fifteenth floor, which, according to Toles, was less busy and away from the
Y’s visitors.
38
For 2008, Pay Grade A had a minimum salary of $26,700 and a maximum salary of
$40,100. Pl. 56.1 Resp., Dkt. 311 at 16, ¶ 25. Pay Grade B had a minimum salary of $32,200 and
a maximum salary of $48,300. Id.
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Direct Method:
Under the direct method, Toles argues that she has sufficient circumstantial evidence to
survive summary judgment on her 2008 failure-to-promote claim. Specifically, Toles argues that
based on her personal knowledge as Pistell’s backup, her old job and the “restructured job” were
functionally equivalent. She also argues that the fact she was chosen to, and currently acts as,
Pistell’s backup undercuts the Y’s argument that she lacked the necessary technical skill to retain
her position in the main reception area and receive the promotion to Pay Grade B. Toles avers
that the Y’s personnel decision to replace her with a younger, less-experienced Caucasian
employee, performing essentially the same job, shows that the Y wanted a Caucasian, rather than
African American, employee greeting visitors at the front desk.
First, Toles argues that she had already been performing whatever data entry
responsibilities the new position supposedly entailed, and that Pistell was performing essentially
the same job Toles had been doing for several years, but in a higher pay grade. See Toles
Deposition, Pl. App’x, Dkt. 325, Tab 6 at 19:1-17. If the new position truly had a greater focus
on data entry, Toles argues, that new position would have been stationed at the more remote
fifteenth floor location, which Toles contends was less busy, rather than in the main reception
area on the fourteenth floor. Pl. Resp., Dkt. 318 at 9. Toles notes that even though the new
position also included the duties of a receptionist, the Y never considered Toles’ receptionist
qualifications. Instead, the Y based the promotion decision exclusively on the typing test and
data entry skills. Id. at 10. Exclusion of receptionist experience is suspicious, Toles argues,
because she had eleven years of experience as the Y’s full-time receptionist, while Pistell had
previously only been a temporary worker. Id.
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The defendants respond that Toles’ “conspiracy theory” is based on conjecture and
speculation, which cannot defeat summary judgment. Def. Reply., Dkt. 377 at 9. Further, the
defendants contend that it would make little sense for the Y to create a new position in order to
remove Toles from the front desk, only to allow her to reapply for that position. Id. at 9-10.
Rather, as the defendants have emphasized, Toles did not receive the position simply because
Pistell outperformed her on the typing test and had stronger data entry and software skills. Id.
Lastly, the defendants argue that Toles’ theory that Pistell could not effectively perform her data
processing duties on the fourteenth floor, where visitors were greeted, is supported only by
speculation, and, therefore, must be rejected. In fact, according to the Y, the front desk position
was changed specifically to enable the employee stationed there to better greet visitors. Defs.
Mot., Dkt. 273 at 7.
But the Y fails to explain how the “restructured” responsibilities of the new position
actually enabled the front desk receptionist to better greet visitors. In fact, the defendants fail to
explain why the position was restructured at all, and how the two jobs (Pistell’s versus Toles’)
actually differed. What can be gleaned from the admissible evidence in the record is based on
Toles’ personal knowledge: (1) Toles worked in both positions, both full time and as a backup;
(2) those positions entailed the same duties and responsibilities; and (3) the only differences
between the new and old positions was that the new position was classified in a higher pay grade
and staffed by a Caucasian employee. If, as Toles argues, the jobs were essentially the same, the
only difference being that she was replaced by a Caucasian temporary worker who was given the
opportunity to earn more compensation through merit increases over time, that is sufficient to, at
the very least, create a factual dispute as to whether that employment decision was based on
racial discrimination—particularly since the defendants have failed to offer evidence
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demonstrating that the jobs were functionally different, and that the purported changes enabled
the receptionist to better greet visitors.
The Y argues that it would be illogical for it to create a new position with a redesigned
job description to remove Toles from the front desk, only to turn around and allow her to apply
for that position. Defs. Reply, Dkt. 377 at 9. But if, as Toles argues, the restructuring was a
“ruse,” it would make perfect sense to allow Toles to reapply for her old position, before moving
her to the fifteenth floor and replacing her at the front desk with a Caucasian woman in a higher
pay grade. If the application procedure was in fact a sham to remove Toles from the main
reception area, allowing her to reapply would be a necessary step to ensuring the process had a
façade of fairness. At bottom, there are factual issues as to whether the new job truly entailed
additional data entry skills, and whether those skills were even necessary, as the defendants
contend, to enable the front desk receptionist to better greet visitors, or whether, as Toles alleges,
the new position was essentially the same as the old position.
Indirect Method:
Relying on essentially the same evidence, Toles’ claim survives summary judgment
under the indirect method as well. The defendants do not contest that Toles is a member of a
protected class or that she experienced an adverse employment action. They do maintain,
however, that Toles cannot establish a prima facie case of discrimination because she cannot
identify a similarly-situated individual, outside of her protected group, that was treated more
favorably, and she cannot show that the Y’s justification of promoting Pistell over her was
pretext. Defs. Reply, Dkt. 377 at 11.
Toles, however, was similarly situated to Pistell, as both were candidates and eligible for
the new Receptionist/Data Processing Clerk position. See Stinnett v. City of Chi., 630 F.3d 645,
110
647 (7th Cir. 2011) (“the relevant similarity was the similarity of persons eligible for the next
promotion”). As the Y emphasizes, Toles was allowed to apply, and was presumably considered,
for the position. Defs. Reply, Dkt. 377 at 9. Pistell, however, received the promotion and,
therefore, was treated more favorably. And, as discussed above, if there was no functional
difference between the two positions, there is at least a factual dispute as to whether Toles was
more qualified to keep the job than Pistell. Accordingly, Toles has established all the elements of
a prima facie case of racial discrimination. The burden then shifts to the defendants to provide a
legitimate and nondiscriminatory reason for their employment decision—not only to hire Pistell
into the position, but the decision to “restructure” the front desk position.
To that end, the defendants again maintain that Pistell was chosen for the promotion
because she was the more qualified candidate. Defs. Reply, Dkt. 377 at 13. But this misses the
point—Toles is not challenging the defendants’ assertion that they created a new job description
for the front desk position, but their assertion that the new position was anything different than
the job Toles had been performing for eleven years as the Y’s full-time receptionist. The Y
provides no legitimate nondiscriminatory reason for their decision to place the main receptionist
position in Pay Grade B, require that position to have stronger data entry and software skills, and
to station that new position at the main reception area where visitors were greeted. The Y asserts
that the changes to the main reception area position were made to enable that employee to better
greet visitors. But as explained above, the Y offers no evidence that any changes were needed,
that the changes actually enabled the receptionist at that position to better greet visitors, and why
it made sense for the main receptionist to be mainly responsible for data entry responsibilities if
it was also that employee’s job to greet visitors.
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Because Toles has adduced sufficient evidence to support her 2008 failure-to-promote
claim under either the direct or indirect method, the defendants’ motion for summary judgment
on that claim is denied.
b. 2010 Conference Center Position
The defendants also contend that Toles does not have sufficient evidence to survive
summary judgment on her claim that Jim Mellor, Director of Finance, failed to hire her for one
of the Conference Center Coordinator positions because she is African American. Defs. Reply,
Dkt. 273 at 5. According to the defendants, the “Conference Center Coordinator position
required experience in cost analysis, projections and webinars, excellent computer skills and
proficiency in Microsoft Office,” skills that Toles purportedly does not, or at least did not,
possess. Id. Based on that lack of technical skill, the defendants contend that “there is little
doubt” that Toles was not qualified for the Coordinator position. Id.
Toles has failed to adduce evidence under either the direct or indirect methods of proof to
support her allegations with respect to the Coordinator position. The Y hired two employees to
fill the Conference Center Coordinator positions—Nicole Bradley, an African American woman,
and Richard Marsoun, who had experience as a Conference Center Coordinator at a local
YMCA. Defs. Reply, Dkt. 377 at 14-15. Toles argues that the Y’s explanation for hiring Bradley
and Marsoun is suspect because (1) the defendants never provided an explanation of Marsoun’s
prior experience and duties or how that experience would be relevant to the position, (2) the Y
promoted Bradley out of the Contact Center despite her lack of experience, and (3) previous
coordinator experience was not a prerequisite for the job. Pl. Resp., Dkt. 318 at 11. Toles also
claims that the technical skill requirements were exaggerated, and that the job responsibilities
were no different than the work Toles had been performing throughout her time at the Y. Id. at
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11-12. And like her claim regarding the main receptionist position, Toles argues that she has
served as a backup Conference Center Coordinator and continues to fill that role despite her
supposed lack of technical skill. Id. at 12.
None of these allegations supports an inference of racial discrimination under either the
direct or indirect methods of proof. For the first position, the Y hired Bradley, an African
American woman. Under either method of proof, this fact eliminates the possibility that Toles
was not hired for the first coordinator position based on her race. Because Toles and Bradley are
both African American, some other factor, or factors, must account for the Y’s decision to hire
Bradley over Toles. Similarly, under the indirect method Bradley is not outside of Toles’
protected class, and, therefore, Toles cannot establish a prima facie case on that basis.
Further, Toles does not dispute that Marsoun had prior experience as a Conference Center
Coordinator at a local YMCA. See Pl. 56.1 Resp., Dkt. 311 at 37; Pl. Resp., Dkt. 318 at 11.
Given Marsoun’s prior coordinator experience, there is no question he was the more qualified
candidate. At bottom, Toles has adduced no evidence that points directly to a discriminatory
reason for the Y’s decision to hire Marsoun over her for the Coordinator position. Further, under
either method of proof, Toles has not adduced evidence that she was more qualified for the
position than Marsoun, or that the Y’s legitimate nondiscriminatory reason for hiring Marsoun—
his prior experience—is pretext for discrimination. Instead, she offers only generalizations,
speculation, and conjecture, all of which are insufficient to survive summary judgment.
Accordingly, the defendants’ motion for summary judgment on Toles’ 2010 claim that the Y
discriminatorily failed to promote her to a Conference Center Coordinator position is granted.
F. Kavon Ward
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The defendants have moved for summary judgment on Ward’s intentional discrimination
and retaliation claims, which, according to the defendants, include a discriminatory hiring claim,
failure-to-promote claim, and other claims based on “miscellaneous incidents” at the Y’s D.C.
office. See Defs. Mot., Dkt. 261 at 4, 5, 10. In her response, however, Ward clarifies that she is
not asserting “a hiring [claim] … and promotion claim … nor is [she] asserting … [that the
‘miscellaneous incidents’] are freestanding claims.” Pl. Resp., Dkt. 319 at 1 n.1. Ward does
contend, however, that those incidents are “evidence of motive and a pattern of discriminatory
and retaliatory conduct.” Id. Accordingly, the defendants’ motion for summary judgment on any
potential hiring or promotion claim, as well as any potential freestanding claims based on the
miscellaneous incidents that occurred in the D.C. office, is granted.
The claims that Ward does assert and support consist of discriminatory and retaliatory
termination, discriminatory pay, and discriminatory performance reviews, under Title VII, §
1981, and the DCHRA.39 Pl. Resp., Dkt. 319 at 13, 32. The defendants contend that summary
judgment should be granted in their favor on each of these claims.
1. Performance Review Claim
Ward alleges that both of the performance reviews she received for 2009 were
discriminatory and proceeds on that claim under the direct method of proof. See id. at 32. Ward
contends that the “meets expectations” ratings that she received were discriminatory and
materially adverse because they “likely doomed any chance that [she] would have had for a
‘special request’ [bonus]—had Haynes advocated for her as she did the white lobbyists.” Id. at
34. In particular, in 2009 Haynes recommended that Bland receive an “enhanced merit increase”
(from 3.5% to 5%) due to his “extraordinary achievement.” Id. The Y agreed to award Bland a
39
Ward also asserts disparate impact and pattern-and-practice claims upon which, as
explained above, the defendants have not moved for summary judgment.
114
3.75% increase, plus an additional $2,500. Id. Similarly, that same year, Haynes gave Adamson a
performance score of “exceeds expectations” and recommended that she receive a merit increase
and lump sum bonus, which the Y granted. Id. From this evidence, in addition to purported
evidence of Haynes’ “discriminatory motive,” Ward contends that a jury could infer that the Y
discriminated against her with respect to her performance reviews. Id.
To the contrary, however, Ward has failed to marshal sufficient evidence, either direct or
circumstantial, under the direct method of proof to survive summary judgment on her claim.
First, Ward has not shown that either of her performance scores constituted adverse employment
actions. See Dass, 675 F.3d at 1068 (“Even though [the plaintiff] is proceeding under the direct
method, [she] still must demonstrate she suffered an adverse employment action.” (citing Lewis
v. City of Chi., 496 F.3d 645, 652-53 (7th Cir. 2007); Rhodes v. Ill. Dep’t of Transp., 359 F.3d
498, 504 (7th Cir. 2004))). Ward received positive performance ratings, and her contention that
had she received higher performance ratings, Haynes may have put in a “special request” for a
bonus for her is merely speculation, and is insufficient to support a claim on a motion for
summary judgment. See Collins, 715 F.3d at 997 (“[The Court] will not draw inferences ‘that are
supported by only speculation or conjecture.’” (citing Harper, 687 F.3d at 306)). Pl. Resp., Dkt.
319 at 34. More importantly, as the defendants note and the plaintiff admits, Ward was not even
eligible to receive a bonus, or any other form of pay raise, during 2009 by virtue of the terms of
her initial offer letter. See id. at 34; Defs. Reply, Dkt. 371 at 12. As a result, and unlike Jones and
Steels, Ward’s “meets expectations” ratings had no tangible effect on the terms and conditions of
her employment. See De La Rama v. Ill. Dep’t of Human Servs., 541 F.3d 681, 686 (7th Cir.
2008) (“At a minimum, the employee must be able to show a quantitative or qualitative change
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in the terms or conditions of employment.” (quoting Haywood v. Lucent Techs., Inc., 323 F.3d
524, 532 (7th Cir. 2003)).
Second, even if Ward could show that her performance reviews were materially adverse,
she has failed to produce sufficient evidence that she was similarly situated to either Bland or
Adamson during the relevant time period. Indeed, given that Ward was not eligible for a merit
pay raise, it is difficult to imagine how she could have been similarly situated to either employee
in regards to merit increases. At bottom, Ward has not adduced any direct or circumstantial
evidence from which a reasonable trier of fact could conclude that her performance reviews were
either materially adverse or motivated by racial discrimination. Accordingly, the defendants’
motion for summary judgment on Ward’s claim for discriminatory performance reviews is
granted.
2. Compensation Claim
Like her performance review claim, Ward proceeds on her discriminatory compensation
claim under the direct method only. To that end, Ward offers circumstantial evidence to support
the contention that Haynes and the Y racially discriminated against her in setting her starting
salary. Ward’s evidence, however, fails to raise a reasonable inference that she suffered a
materially adverse employment action motivated by either Haynes’ or Bland’s alleged racial
discrimination.
Ward contends that she requested a starting salary of $80,000, but only received $70,000,
which was the lowest end of the potential salary range for her position. Pl. Resp., Dkt. 319 at 33.
But she has failed to show that the Y’s justification for setting her salary at the lowest end of the
salary range—that Ward lacked the requisite five to seven years of professional experience for
the Public Policy Manager position—was pretext for racial discrimination. Def. Reply, Dkt. 371
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at 9. Ward argues that even though her salary was set within the range set by the Y in the Public
Policy Manager job description, other Caucasian employees received higher starting salaries
despite similar deficits in professional experience. See Pl. Resp., Dkt. 319 at 33. For instance,
Ward contends that Bland received a starting salary of $110,000, which Haynes specially
requested on Bland’s behalf because that salary exceeded the established range for his position.
Id. Further, Ward argues that Bland also lacked the requisite five to seven years of experience
when he was hired, but still received $40,000 more in starting salary than Ward. Id.
But for these facts to have any probative value, assuming they are true, Ward needs to
demonstrate that she was similarly situated to Bland or perhaps some other Public Policy
Manager, not in Ward’s protected group and with a level of experience equivalent to Ward’s,
who received a higher starting salary—a task she has failed to do. See, e.g., Good v. Univ. of Chi.
Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012) (“The ‘similarly situated’ prong establishes whether
all things are in fact equal.” (quoting Filar v. Bd. of Educ. of City of Chi., 526 F.3d 1054, 1061
(7th Cir. 2008)). In her response, Ward makes no effort to establish that she and Bland were
similarly situated in all material respects at the times of their respective hires. As the defendants
point out, Bland held a director-level position while Ward was hired at a manager-level position,
and Bland had different duties and responsibilities. Def. Reply, Dkt. 371 at 10. At bottom, Ward
has failed to provide sufficient evidence to support a reasonable inference that any difference in
starting pay between her and Bland was motivated by racial discrimination.
Similarly, Ward notes that Adamson was hired in 2004 at a starting salary of $150,000,
but Cookab Hashemi, Ward’s predecessor, was hired in 2006 at $72,000. Pl. Resp., Dkt 319 at
33. But again, Ward has failed to adduce any evidence that demonstrates that either she or
Hashemi were similarly situated to Adamson when they were hired. Instead, Ward concludes
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that “there is sufficient evidence from which a reasonable jury could infer that experience alone
cannot explain these large spreads [in starting salaries] ($40,000 difference between Ward/Bland
and $78,000 difference between Hashemi/Adamson).” Id. Simply identifying a difference in pay,
however, and concluding that that difference was motivated by racial discrimination is
insufficient to create a triable issue of fact. See, e.g., Anderson, 699 F.3d at 996 (“In his attempt
to construct…a mosaic, [the plaintiff] suggests only that he has already offered evidence of
suspicious timing and pretext. Such a conclusory allegation is insufficient to raise an issue of
material fact.”). As previously explained, such evidence, or lack thereof, does not point “directly
to a discriminatory reason for the employer’s action,” Good, 673 F.3d at 675 (citations omitted),
but to myriad possible reasons, such as differences in experience, qualifications, duties, and
responsibilities. Id. Based on Ward’s evidence, could her race have been a factor in Haynes’
employment decision? Possibly, but as the Seventh Circuit has taught, “guesswork and
speculation are not enough to avoid summary judgment.” Id.
Because Ward has failed to show that she was similarly situated to either Bland or some
other employee in all material respects, she has also failed to show that the Y’s justification for
setting her salary at $70,000 was pretext for intentional discrimination. Ward’s circumstantial
evidence falls well short of a “convincing mosaic…that [would] allow[] a jury to infer
intentional discrimination by the decisionmaker.” Brown, 700 F.3d at 1105 (citing Phelan v.
Cook Ctny., 463 F.3d 773, 779 (7th Cir. 2006)). Accordingly, the defendants’ motion for
summary judgment on Ward’s discriminatory compensation claim is granted.
3. Discriminatory and Retaliatory Termination Claim
Ward argues that her termination was both discriminatory and retaliatory, and proceeds
on both of those claims under the direct and indirect methods of proof. The defendants contend
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that Ward’s termination claims fail because she has not offered sufficient admissible evidence to
survive summary judgment. For the reasons explained below, the Court finds that Ward has
produced sufficient evidence to support a reasonable inference of discrimination under the
indirect method of proof and retaliation under the direct method of proof.
a. Discriminatory Termination: Indirect Method of Proof
According to the defendants, Williams decided to terminate Ward, with input from
Gordon, Haynes, and Bland, because Ward violated the Y’s zero tolerance policy for workplace
violence. See William’s Dep., Pl. Appx., Dkt. 325, Ex. 12 at 126-27. Williams based her decision
on Adamson’s report that Ward had “yelled incoherently at [Adamson] and told her ‘fuck you
and fuck the whole team.” Defs. Reply, Dkt. 371 at 13. Williams also testified that she based her
termination decision on reports that Ward had used threatening and abusive language towards
Haynes and Bland. See William’s Dep., Pl. Appx., Dkt. 325, Ex. 12 at 127-28. The Y contends
that Ward simply has no evidence that Williams had a discriminatory or retaliatory motive when
she terminated Ward’s employment, particularly given the fact that Williams and Ward are both
African American women. See, e.g., Defs. Reply, Dkt. 371 at 14-15. On this basis, the
defendants argue that Ward cannot show that she was meeting the Y’s legitimate expectations,
and that they have proffered a nondiscriminatory justification for the termination, for which
Ward has no evidence of pretext.
The plaintiff contends that her termination was discriminatory, in part, because the Y
selectively enforced their zero tolerance workplace violence policy by firing Ward, but failing to
terminate or even discipline Haynes for similar misconduct. As Ward points out, there is record
evidence that Haynes also yelled and used abusive language, in addition to slamming doors and
books, but faced no consequences for those actions. Under the indirect method, the first critical
119
inquiry, then, is whether Ward and Haynes are similarly situated for purposes of establishing a
prima facie case of intentional discrimination.
As the Seventh Circuit has taught in Coleman, when determining whether two employees
are similarly situated, “[t]here must be enough common factors…to allow for a meaningful
comparison,” but the “number [of relevant factors] depends on the context of the case.” 667 F.3d
at 847 (internal quotations and citations omitted). “In the usual case a plaintiff must at least show
that comparators (1) dealt with the same supervisor, (2) were subject to the same standards, and
(3) engaged in similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer’s treatment of them.” Id. (internal quotations omitted)
(citing Gates v. Caterpillar, 513 F.3d 680, 690 (7th Cir. 2008) (quoting Snipes v. Ill. Dep’t of
Corrections, 291 F.3d 460, 463 (7th Cir. 2002)). Ward has met this legal standard here.
As to the first factor, Ward and Haynes dealt with the same decision-makers.
Specifically, Williams and Gordon were aware of and involved in Ward’s complaints against
Haynes and made the decision to terminate Ward. See Defs. 56.1 Resp., Dkt. 372 at 14, ¶ 30; 16,
¶ 35. As to the second factor, Ward and Haynes were both subject to the same standards even
though Haynes held a director-level position. Indeed, if, as the Y asserts, they “maintained
a…policy prohibiting violence in the workplace during all relevant periods,” that policy
necessarily applied equally to every employee. Pl. 56.1 Resp., Dkt 310 at 7, ¶ 12. A plain reading
of the Y’s policy highlights this point. Specifically, “in 2010, the Y’s Violence in the Workplace
policy stated in part:”
YMCA of the USA has a responsibility to provide all employees with a safe work
environment. We take this commitment very seriously. Violence in our workplace
is prohibited. Examples of unacceptable behavior include the following:…
Acts that threaten physical violence
Acts of intimidation, horseplay, verbal abuse or harassment
120
Behavior indicating potential for violence, including throwing objects…
Acts that endanger the safety of others
Reports of incidents of…threatened violence or violations of [the policy] will be
promptly investigated and, following that investigation, appropriate corrective
measures will be taken.
[T]hreats of harm…and threats are not acceptable conduct, are prohibited and are
incompatible with our expectations of professional decorum in our workplace.
These actions may lead to immediate suspension or termination of employment.
Id. at 7-8, ¶ 12 (emphasis added); Defs. 56.1 Resp., Dkt. 372 at 25, ¶ 59; Ex. 97, Pl. Appx., Dkt.
326, Tab 97 at 35.
The policy language demonstrates that the prohibition of violence applies across the
board, whether the employee is a lobbyist, supervisor, or director. In particular, the policy states
that its aim is to “provide all employees with a safe work environment,” an unattainable goal if
the policy applied to some, but not all employees. See, e.g., Coleman, 667 F.3d at 849 (“Since
the purpose of the rule is to ensure a ‘safe and humane working environment,’ there is no
objective reason for it to apply with greater or lesser force to employees of certain positions.”).
Moreover, the prohibition on violence is unequivocal. And as the Seventh Circuit has explained,
despite the fact that Haynes held a director-level position, “when uneven discipline is the basis
for a claim of discrimination, the most-relevant similarities are those between the employees’
alleged misconduct, performance standards, and disciplining supervisor, rather than job
description and duties.” Id. (internal quotations omitted) (citing Rodgers v. White, 657 F.3d 511,
518 (7th Cir. 2011)). On that point—the third and final factor—Ward has shown that Haynes
engaged in comparable, if not more serious, misconduct.
According to Ward, at the April 12, 2010, staff meeting, Haynes slammed a book on the
conference table and screamed at her. Defs. 56.1 Resp., Dkt. 372 at 12, ¶ 25. Ward then reported
this incident to Gordon. Id. at 13, ¶ 26. Gordon testified that she thought Haynes’ conduct in the
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meeting was “inappropriate” and “serious.” Id. at 13, ¶ 27. Ward took the following day off, but
when she returned to work, Bland allegedly told Ward that she “should be careful because
[Haynes] and I are your supervisors so when you get upset like you are now or when you look at
us a certain way there could be consequences such as what occurred on Monday [the day of the
staff meeting incident].” Id. at 14, ¶ 28. Ward then lodged a second complaint. Id. at 14, ¶ 29.
Gordon subsequently forwarded Ward’s complaints to the Y’s legal department and Williams for
investigation. Id. at 14, ¶ 30.
Karyn Boston then traveled to the D.C. office and investigated the April 12 staff meeting
incident. Id. at 15, ¶ 32. Boston interviewed witnesses to determine whether Haynes had
slammed a book during the meeting, as Ward alleged. Id. One witness, Torrence Montgomery,
testified that Haynes had indeed slammed a book “out of nowhere.” Id. Bland, however, denied
that Haynes had slammed the book, and Boston never asked Haynes about the incident. Id.
Further, according to Ward, the end result of the investigation was that her complaints were
substantiated. Ward testified that both Gordon and Boston informed her that Haynes had engaged
in “unethical behavior.” Pl. 56.1 Resp., Dkt. 310 at 38, ¶ 57. Despite that finding, however, the Y
did not resolve the investigation by disciplining Haynes, but by moving Ward out of the D.C.
office to the D.C. metropolitan YMCA. Id.; Defs. 56.1 Resp., Dkt. 372 at 16, ¶ 36. In fact,
Haynes testified that she was never even told the outcome of the investigation. Defs. 56.1 Resp.,
Dkt. 372 at 16, ¶ 36.
“In a disparate discipline case, the similarly-situated inquiry often hinges on whether coworkers ‘engaged in comparable rule or policy violations’ and received more lenient discipline.”
Coleman, 667 F.3d at 850 (citing Naik v. Boehringer Inqelheim Pharms., Inc., 627 F.3d 596, 600
(7th Cir. 2010) (quoting Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir.
122
2009))). “Comparators must have ‘engaged in similar—not identical—conduct to qualify as
similarly situated.’” Id. (citing Peirick v. Ind. Univ.-Purdue Univ. Ind. Athletics Dep’t, 510 F.3d
681, 691, 698) (university tennis coach “accused of using abusive language, unsafe driving,
leaving students behind during a road trip, and pitting the students against the administration”
was similarly situated to coaches who “did not engage in the exact same misconduct” but who
“violated the very same rules”) (quoting Ezell v. Potter, 400 F.3d 1041, 1050 (7th Cir. 2005))).
“[T]he critical question is whether they have engaged in conduct of comparable seriousness.” Id.
at 851 (citing Peirick, 510 F.3d 689). Of course, the plaintiff denies that she engaged in the
misconduct for which she was terminated. But the critical question here is not whether Ward
actually engaged in the alleged misconduct, but whether Haynes received more lenient discipline
for a comparable violation of the Y’s rules and policies.
The analysis here is fairly straightforward. As noted above, there is record evidence that
Ward’s complaint concerning the staff meeting incident had been substantiated. And yelling and
slamming a book is at least as serious a violation of the Y’s policy as yelling at a co-worker over
the phone, particularly since the Y’s policy explicitly lists intimidation and throwing objects as
examples of prohibited behavior. In this case, one employee was terminated for her alleged
violation of the policy, while another received no discipline at all. To be sure, the defendants
contend that Haynes and Ward are not comparable because there is no evidence that “other
[employees] complained to Williams and Gordon about Haynes’ alleged conduct, let alone that
Haynes’ conduct caused them to fear her.” Defs. Reply, Dkt. 371 at 26. But as just explained,
Ward filed a complaint concerning Haynes’ conduct. And the issue at summary judgment is not
the impact of that alleged misconduct (such as how fearful it made co-workers), but whether the
123
comparators engaged in similar violations of the employer’s rules. Accordingly, for purposes of
summary judgment, Ward and Haynes are similarly situated.
Having met her burden of establishing a prima facie case, the burden of proof shifts from
Ward to the Y, who must proffer a legitimate, nondiscriminatory justification for their adverse
employment decision. To that end, the Y again offers Ward’s alleged violation of the zero
tolerance policy for workplace violence. Accordingly, the burden of proof shifts back to the
plaintiff to offer evidence that the Y’s justification is pretext for racial discrimination.
Here, Ward attempts to show pretext by arguing that the Y failed to follow its internal
procedures for handling complaints by failing to investigate Haynes’ misconduct, that the Y’s
six-day delay in terminating Ward is suspicious, and that Ward’s conduct arguably did not even
violate the Y’s policy which mostly applied to “acts” as opposed to, presumably, yelling or
making angry comments to other employees. Pl. Resp., Dkt. 319 at 26. None of these points are
particularly persuasive, although the Court notes that it is at least questionable whether yelling at
a co-worker over the phone and using obscenities truly qualifies as a violation of the Y’s policy
on workplace violence.
The plaintiff also argues, in her responsive brief and by separate motion, that the
defendants should be barred from relying on Williams’ and Gordon’s testimony to meet their
burden of proffering a legitimate, nondiscriminatory justification for Ward’s termination. See id.
at 20-22; Pl. Mot. to Strike, Dkt. 366. The plaintiff contends that the employees whom the Y
identifies as the decision-makers, Williams and (to a lesser degree) Gordon, refused to testify
about the conversations they had with employees in the D.C. office that formed the basis of their
decision to terminate Ward. Pl. Resp., Dkt. 319 at 21-22. A review of the deposition transcripts
shows that Williams and Gordon did in fact assert attorney-client privilege when asked about
124
those conversations. See, e.g., Williams’s Dep., Pl. Appx., Dkt. 326, Tab 12 at 132:9-17 (“Q.
And you [Williams] are refusing to disclose those communications which were the basis of your
decision to terminate [Ward’s] employment [based on attorney-client privilege]? A. As I’ve said,
yes.”); see also Gordon’s Dep., Pl. Appx., Dkt. 326, Tab 9 at 446-448. According to the plaintiff,
Williams’s assertion of attorney-client privilege handicaps her ability to show the Y’s
justification is pretextual because Williams and Gordon are the only sources of information
regarding the termination decision. Pl. Resp., Dkt. 319 at 21-22. The defendants respond that
Ward is not prejudiced by Williams’ and Gordon’s assertion of privilege because “[t]here is
ample testimony regarding the basis to terminate Ward from Williams, Gordon and Adamson.”
Defs. Reply, Dkt. 371 at 27. Further, the defendants argue that they have not relied on any of the
privileged information to make their arguments, and therefore, neither witness’s testimony
should be barred. Id. at 28.
The Court need not resolve the fact specific issue of whether the decision to terminate an
employee is a business rather than a legal decision. See, e.g., Gomez v. Metro. Dist., 2013 WL
2489138, *6-7 (D. Conn. June 10, 2013) (referencing “the always difficult and uncomfortable
question of the ‘hat’ in-house counsel wears” when participating in decisions to terminate an
employee); Perius v. Abbott Labs., 2008 WL 3889942, *7 (N.D. Ill. Aug. 20, 2008) (“The
attorney-client privilege does not protect business advice, even when the advice is given by an
attorney, but it does protect an attorney's legal advice about a business decision.”) (emphasis in
original). The issue is not material here because the plaintiff has already met her burden of proof
on this point by establishing that a similarly-situated employee not in her protected group, who
engaged in comparable misconduct, was disciplined more leniently. See Coleman, 667 F.3d at
853 (“As the Supreme Court, this court, and other circuits have held, a discrimination plaintiff
125
may employ such comparator evidence to discharge her burden at the pretext stage as well as to
satisfy the fourth element of her prima facie case.”). Accordingly, the plaintiff motion’s to strike
Williams’ and Gordon’s testimony from their summary judgment brief, see Pl. Mot. to Strike,
Dkt. 366, is denied as moot, and the defendants’ motion for summary judgment on Ward’s
discriminatory termination claim is denied.
b. Retaliatory Termination: Direct Method of Proof
Ward survives summary judgment on her retaliatory termination claim under the direct
method of proof. As explained above, to prevail on a claim for retaliatory termination, a plaintiff
must show “that she (1) engaged in statutorily protected activity; (2) she suffered an adverse
employment action taken by the employer; and (3) there was a causal connection between the
two.” Northington v. H&M Int’l, 712 F.3d 1062, 1065 (7th Cir. 2013) (citing Kodl v. Bd. of
Educ. Sch. Dist. 45, 490 F.3d 558, 562 (7th Cir. 2007)). Here, the defendants do not dispute that
Ward engaged in statutorily protected activity or that her termination constitutes an adverse
employment action. The sole question, therefore, is whether Ward has produced sufficient
evidence to show a causal connection between the protected activities she engaged in and the
adverse employment action she suffered.
Under the direct method, Ward may rely on either direct or circumstantial evidence to
show that the Y was motivated to terminate her based on her protected activity. As previously
explained, circumstantial evidence, as Ward offers here, may include “suspicious timing,
ambiguous statements, behavior toward or comments directed at other employees in the
protected group, and other bits and pieces from which an inference of discriminatory intent
might be drawn.” Harper, 687 F.3d at 307 (citation omitted). Two additional categories of
circumstantial evidence recognized by the Seventh Circuit are “evidence…that similarly situated
126
employees were treated differently…and evidence that the employer offered a pretextual reason
for an adverse employment action.” Id. at 307 n.32. The defendants argue that Ward has failed to
present any evidence, or even allege, that Williams retaliated against her. Defs. Reply, Dkt. 371
at 21. Instead, the defendants contend, Ward only offers evidence of a retaliatory motive by
Haynes, Bland, and Gordon, and again fails to connect those alleged retaliatory motives to her
termination.
As explained above, Ward has already met her burden of showing that she was similarly
situated to Haynes, who did not engage in statutorily protected activity, at the time of her
termination and, based on that same evidence, establishing a material issue of fact as to whether
the Y offered a pretextual reason for her termination. The Court also notes that while Williams is
the nominal decisionmaker put forth by the Y, under the “cat’s paw” theory of liability, any
admissible evidence Ward has offered to show that Haynes, Bland, and Gordon, who Williams
testified participated in the decision to terminate Ward, had a retaliatory motive is relevant.40
The “cat’s paw” theory applies “if a supervisor ‘performs an act motivated by [a
discriminatory or retaliatory] animus that is intended by the supervisor to cause an adverse
employment action, and…that act is a proximate cause of the ultimate employment action.’”
Cervantes v. Caterpillar, Inc., No. 11 C 8185, 2013 WL 3224451, at *4 (N.D. Ill. June 25, 2013)
(citing Staub v. Proctor Hosp., --- U.S. ----, 131 S. Ct. 1186, 1194 (2011)). “Thus, it is
appropriate to impute discriminatory or retaliatory animus to a decisionmaker when ‘the party
nominally responsible for a decision is, by virtue of her role in the company, totally dependent
on another employee to supply the information on which to base that decision.’” Hicks v. Forest
Pres. Dist. of Cook Cnty., Ill., 677 F.3d 781, 790 (7th Cir. 2012) (citing Brewer v. Bd. of Trs. of
40
Although the plaintiff’s responsive brief does not explicitly invoke the “cat’s paw”
theory, the Court reads Ward’s brief as raising it.
127
the Univ. of Ill., 479 F.3d 908, 918 (7th Cir. 2007)). As already stated, Williams testified that she
based her decision to terminate Ward on the information she received from Haynes, Bland, and
Gordon. Under the cat’s paw theory, then, Ward must adduce evidence to show that any or all of
those individuals intended to and proximately caused, through Williams, Ward’s termination in
retaliation for her protected activities.
To that end, Ward offers evidence sufficient to raise a reasonable inference that Haynes
and Bland were motivated to retaliate against her. For instance, in October 2009, after Gordon
informed Haynes that Ward filed a complaint concerning Bland’s 2009 comment, Haynes started
a log on Ward “after hearing that [Ward] had made several calls to our HR department, consulted
other Y colleagues and word had gotten back to our CEO that she was unhappy with her
treatment for lack of a better characterization.” Pl. Resp., Dkt. 319 at 16. Then in January 2010,
Bland lowered Ward’s performance scores, and Haynes attempted to lower them even further. Id.
Ward complained about the lowered scores given by Haynes to HR. At HR’s insistence, the
previous performance scores were reinstated. After this incident, however, Bland began keeping
his own record to document Ward’s “substandard performance.”41 Id. In an email dated April 8,
2010, Bland emailed a copy of his log to Haynes, who redlined and added comments to the
document. Bland wrote that the log was “about the fourth [he had] of [those], either on
41
The documentation of an employee’s substandard performance may, of course, be
perfectly legitimate. The defendants argue that Haynes’ and Bland’s “documentation of Ward’s
performance cannot support her retaliation claim…especially…where there is no evidence that
Williams or Gordon relied upon the documentation or any of the information in either document
to reach their decision to terminate Ward’s employment.” Defs. Reply, Dkt. 371 at 23. But as
previously explained, Williams and Gordon asserted attorney-client privilege over their
conversations with Haynes and Bland, and by extension, their basis for terminating Ward, so that
assertion is presently unverifiable. In any event, the issue here is not whether Williams relied on
the logs, but whether the logs are relevant to help establish that Haynes and Bland had an intent
to retaliate against Ward. Since they support an argument that their interest in documenting
Ward’s performance appears to have arisen directly in response to her protected activities, they
are probative of that issue.
128
Performance or Attendance.”42 Dkt. 316 at 7, ¶ 24. Haynes replied to the email, suggesting that
Bland speak with Vinluan, who had recently placed an employee “on a 90 day probation.” Id.
Haynes noted that it appeared Vinluan was “about to get rid of [that employee].” Id. The
defendants contend that this email exchange does not support Ward’s retaliation claim because
“there is no evidence that Bland talked to Vinluan, that he took steps to place Ward on a 90-day
probation plan, [or] that Ward was ever placed on such a plan.” Defs. Reply, Dkt. 371 at 23.
While the defendants’ assertions that Bland did not take those actions may be correct, the email
exchange is still circumstantial evidence that the purpose of the documentation was to form a
basis for terminating Ward—documentation that Haynes and Bland began keeping after Ward
filed her complaints of discrimination.
Similarly, Gordon testified that Ward “is the only person in [her] life who’s ever called
[her] that much in [her] entire life” and that Ward “complained about Audrey Haynes from June
2009 until the day she left.” Pl. Resp., Dkt. 319 at 29. According to Ward, Gordon also suggested
that Ward could find a job elsewhere if she was concerned that the D.C. office was overly
aggressive. Id. This evidence could suggest that, rather than deal with Ward’s numerous
complaints, Gordon thought it may have been better to just terminate Ward—thereby making
Ward’s complaints a motivating factor in the decision to terminate her.
From these bits and pieces of evidence, a reasonable jury could conclude that Haynes,
Gordon, and Bland were seeking a means to terminate Ward due to her statutorily protected
42
The Court notes that the defendants object to the email as lacking foundation and
authentication. See Defs. 56.1 Resp., Dkt. 372 at 12, ¶ 24. However, the defendants appear to
acknowledge the authenticity of the email in their reply brief. See Defs. Reply, Dkt. 371 at 23
(“Similarly, Haynes’ email to Bland suggesting that he talk with another manager, Monica
Vinluan, about placing Ward on a performance improvement plan had no relation whatsoever to
Ward’s termination.”). And in any event, whether or not the email is admissible, Ward has met
her burden of production on this claim by showing that she was similarly situated to Haynes.
129
activity. Specifically, after Ward filed complaints concerning Bland’s 2009 comment and
lowered performance scores, a reasonable jury could infer that Haynes and Bland began keeping
logs on Ward in order to build a basis to terminate her employment. Indeed, Haynes directly cites
Ward’s complaint as her reason for starting the log. Further, Gordon’s apparent frustration with
Ward’s numerous complaints, and suggestion that she could find a job with another employer,
creates at least a triable issue of fact as to whether her recommendations and discussions with
Williams about whether to terminate Ward were in part motivated by Ward’s complaints. In fact,
according to Ward and as noted above, at one point Gordon suggested that if Ward did not like
the culture of the D.C. office, she could look for employment elsewhere. Combined with Ward’s
evidence of pretext and a similarly-situated employee treated more favorably, she has presented
enough circumstantial evidence to show that her discrimination complaints may have motivated
Haynes, Bland, or Gordon to seek her termination. So far as the record reflects, Williams based
her decision to terminate Ward on the information she received from those individuals, which
raises a reasonable inference that their retaliatory animus was a proximate cause for the
termination. Accordingly, Ward has adduced sufficient evidence to raise a reasonable inference
of retaliation, and, therefore, the defendants’ motion for summary judgment on this claim is
denied.
*
*
*
For the foregoing reasons, the Court:
(1) Denies the defendants’ summary judgment motions against plaintiffs Jones, Steels,
and Toles to the extent that such motion purports to seek judgment on the disparate impact and
pattern-and-practice claims advanced by those plaintiffs;
130
(2) Grants the defendants’ motion for summary judgment with respect to Plaintiff Jones’
failure-to-promote, performance evaluation, pay raise, base compensation, and retaliatory
discharge claims, and denies the motion as to his discriminatory termination claim;
(3) Grants the defendants’ summary judgment motion with respect to Plaintiff Steels’
failure-to-promote, telecommuting, and constructive discharge claims, and denies the motion as
to her performance evaluation, 2006 pay raise, base compensation, and retaliatory discharge
claims;
(4) Grants the defendants’ summary judgment motion with respect to Plaintiff Toles’
2001 and 2010 Conference Center Coordinator failure-to-promote, failure to train, performance
evaluation, and compensation claims, and denies the motion with respect to her 2008 and 2010
Contact Center team lead failure-to-promote claims;
(5) Grants the defendants’ summary judgment motion with respect to Plaintiff Ward’s
pattern-and-practice claim as to defendant Hite; the Court further grants the motion with respect
to the discriminatory hiring, failure-to-promote, performance review, and compensation claims,
and denies the motion with respect to Plaintiff Ward’s discriminatory and retaliatory discharge
claims.
Entered: June 18, 2014
____________________________________
John J. Tharp, Jr.
United States District Judge
131
TABLE 1: Summary of Counts and Claims
"Counts"
I
"Claims"
II
18 U.S.C. 1981
(termination)
18 U.S.C. 1981 (retaliation)
III
IV
18 U.S.C. 1981 (evaluations,
compensation, promotions)
Title VII (evaluations,
compensation, promotions;
disparate treatment and
disparate impact)
Plaintiffs
Steels
Toles
X
X
Jones
X
X
X
X
X
X
X
V
Title VII (termination;
disparate treatment and
disparate impact)
X
Title VII (retaliation)
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
VI
VII
IHRA (evaluations,
compensation, promotions;
disparate treatment and
disparate impact)
Ward
X
Defendants
YMCA Hite
X
X
X
X
X
VIII
IHRA (termination;
disparate treatment and
disparate impact)
X
X
X
IX
X
IHRA (retaliation)
X
X
DCHRA (evaluations,
compensation, promotions;
disparate impact and
disparate treatment)
X
X
X
XI
DCHRA (termination;
disparate treatment and
disparate impact)
X
X
XII
DCHRA (retaliation)
X
X
132
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