Komal

Filing 60

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 6/13/2011.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HARDEEP KOMAL,
Plaintiff,
vs.
ARTHUR J. GALLAGHER & CO.,
Defendant.

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09 C 6619
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Plaintiff Hardeep Komal brought this action against his former employer, Defendant
Arthur J. Gallagher & Company, alleging discrimination and retaliation in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Gallagher has
moved for summary judgment. The motion is granted with respect to Komal’s discrimination
claim and denied with respect to his retaliation claim.
Background
The facts are set forth as favorably to Komal as the record and Local Rule 56.1 permit.
Gallagher hired Komal in December 2005 to work in its Information Technology (“IT”)
department as a Senior Network Security Analyst at its facility in Itasca, Illinois. Komal is of
Indian descent, practices the Sikh religion, maintains a full beard, and wears a turban. On
December 13, 2006, Komal walked past two co-workers and heard one of them say “terrorist.”
The co-workers maintained that they were discussing their own appearances with and without
facial hair, but Komal believed that the word was directed at him.

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Komal immediately complained to Chad Fickle, his direct supervisor at the time. David
Melchers—Gallagher’s Chief Information Officer, Fickle’s direct supervisor, and Komal’s
indirect supervisor—was informed of the incident about a week later. Gallagher conducted an
investigation. The co-workers admitted to saying the word “terrorist” in Komal’s presence,
denied using it in reference to Komal, and were counseled regarding appropriate workplace
conversation. They also offered to make a verbal apology. Komal rejected the offer and
demanded a written apology. The demand was not satisfied, and in December 2007 Komal
brought the issue directly to Melchers.
The parties contest what happened next. According to Komal, after he complained to
Melchers, Melchers encouraged him to drop the issue and began generating fabricated evidence
of poor performance reaching back several months before December 2007. Komal maintains
that this fabricated evidence led directly to his termination in October 2008. According to
Gallagher, no evidence was fabricated; rather, Komal’s performance consistently deteriorated
despite efforts to counsel and encourage him.
It is undisputed that in March 2007, three months after the “terrorist” incident but nine
months before Komal complained directly to Melchers, Komal received an annual performance
review. The evaluation concluded that Komal generally was meeting expectations, and noted
that “Hardeep has done a strong job for us this year, in light of heavy demands in the network
area. His ability to handle the day to day issues and support our company has been important.
He has been under a heavy workload and dealt with it well.” Doc. 46 at ¶ 94. The review,
however, also noted that Komal failed to “follow-through” on projects on several occasions, that
he had difficulty completing tasks on time, and that he needed to develop his leadership and
project management skills. Doc. 52-1 at 18-19.
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After the March 2007 review but before Komal’s complaint to Melchers in December
2007, Komal’s supervisors noted deficiencies in his performance. On multiple occasions in
November 2007, Komal received “coaching” for what Bob Green, his then-supervisor, claimed
to be poor communication. On December 3, 2007, Komal met with Green to address what
Green claimed to be Komal’s failure to correct certain technical problems and failure to respond
to requests for further assistance. In January and February 2008, after Komal’s complaint to
Melchers, Komal repeatedly was warned and counseled about what his supervisors claimed to be
attendance problems and unacceptable work product. In the meantime, in December 2007 or
January 2008, Calvin Wright, who was Komal’s supervisor at certain points, asked him whether
he was a Muslim. A co-worker asked him the same question the following summer.
Komal had his next annual performance review in April 2008. Melchers took direct
responsibility for the review. Although Melchers indirectly supervised about 270 employees,
Komal was the only such employee for whom Melchers could recall exercising such
responsibility. The review stated that Komal needed improvement in three of six designated
areas and had additional “development needs,” and gave Komal an overall rating of “less
effective.” Doc. ___ at 12-13. Like the 2007 review, the 2008 review stated that Komal had to
improve his leadership, productivity, and follow-through; unlike the 2007 review, the 2008
review also stated that Komal had trouble accepting technical changes, struggled to solve
technical problems, had poor attendance, and had difficulty communicating technical issues.
Following the April 2008 review, Komal was placed on a six-week Performance
Improvement Plan (“PIP”), a program intended to provide low-performing employees with
personal counseling and targeted feedback in order to improve their work. Komal’s PIP stated
that its goal was to improve his attendance and punctuality, increase his productivity, and
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improve his troubleshooting skills and ability to communicate regarding technical issues.
During the PIP, Komal met every one to two weeks with Wright and Melchers to discuss
Gallagher’s expectations and to review the prior week’s performance. According to Komal,
Melchers repeatedly encouraged him to quit. Gallagher’s take is that Melchers merely offered
Komal a “graceful exit” in light of his performance problems.
During Komal’s PIP, Gallagher continued to receive complaints about Komal from his
colleagues regarding his communication skills, failure to follow-through on projects, inability to
problem-solve, and failure to provide thorough solutions to computing problems. On May 27,
2008, Komal received a written warning that extended his PIP until the end of June 2008 and
that warned that he could be terminated if he failed to meet the PIP’s objectives. According to
Gallagher, Komal continued to have performance problems, was suffering from “eroding
credibility,” and was deemed by Melchers to no longer be “fit for the role.” Komal attributes
any performance issues to the fact that Gallagher practiced discrimination by giving him only
partial access to Gallagher’s Cisco operating system, to which co-worker Carl Schneider had
greater access, and by giving co-worker Christine Bannia “access to infrastructure and devices”
denied to him.
The PIP concluded on June 30, 2008. Komal contends that his performance thereafter
was “exemplary.” On October 8, 2008, Komal was fired. Gallagher submits that before the
termination, Komal rejected the company’s offer of a modified position in the IT department that
would have focused his responsibilities on tasks he performed well and eliminated duties he
performed poorly. Komal denies that any such offer was made.
On July 24, 2008, over two months before his termination, Komal filed a charge with the
Equal Employment Opportunity Commission (“EEOC”), which stated in relevant part:
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In December 2006 I engaged in a protected activity. Subsequently I have
been discriminated against in that I have been harassed, subjected to
unequal terms and conditions of employment, and disciplined. I believe
that I have been discriminated against because of my race, Asian, national
origin, India, religion, Sikh, and retaliated against for engaging in protected
activity, in violation of Title VII of the Civil Rights Act of 1964, as
amended.
Doc. 1-2 at 3. After his termination, Komal filed a second EEOC charge, which stated in
relevant part: “On July 24, 2008, I filed a charge of discrimination with the EEOC against
[Gallagher]. On October 8, 2008, I was discharged. I believe I have been discriminated against
for engaging in protected activity.” Doc. 1-2 at 1.
The EEOC issued right-to-sue letters to Komal, who timely filed this lawsuit on October
21, 2009. Count II of the complaint alleges that Komal was subjected to racial, ethnic, and
religious discrimination at Gallagher. Count I alleges that Gallagher retaliated against Komal for
complaining about the discrimination.
Discussion
I.

Komal’s Hearsay Objection to Gallagher’s Documentary Evidence
Komal maintains that each document attached to and cited by Gallagher’s Local Rule

56.1 statement is inadmissible hearsay. “[H]earsay is inadmissible in summary judgment
proceedings to the same extent that it is inadmissible in a trial.” Eisenstadt v. Centel Corp., 113
F.3d 738, 742 (7th Cir. 1997); see also Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th
Cir. 2003). The objected-to documents include emails, meeting memoranda, performance
reviews, Gallagher policies, and disciplinary documents. Gallagher responds that the documents
are business records and therefore excepted from the hearsay rule.
The dispute is governed by Federal Rule of Evidence 803(6), which provides that the
hearsay rule does not bar
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[a] memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the time by, or
from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report, record
or data compilation, all as shown by the testimony of the custodian or other
qualified witness, or by certification that complies with Rule 902(11) [or]
Rule 902(12).
Fed. R. Evid. 803(6). “To be admissible as a business record, a document must have sufficient
indicia of trustworthiness to be considered reliable.” Woods v. City of Chicago, 234 F.3d 979,
988 (7th Cir. 2000). “Normally, to demonstrate such trustworthiness and reliability at the
summary judgment stage, the party seeking to offer the business record must attach an affidavit
sworn to by a person who would be qualified to introduce the [business] record as evidence at
trial, for example, a custodian or anyone qualified to speak from personal knowledge that the
documents were admissible business records.” Ibid.; see also Thanongsinh v. Bd. of Educ., 462
F.3d 762, 777 (7th Cir. 2006). “Authentication does not erect a particularly high hurdle to
admissibility, and is ‘satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.’” Asher v. Baxter Int’l, Inc., 2009 WL 260979, at *6
(N.D. Ill. Feb. 4, 2009) (quoting Fed. R. Evid. 901(a)).
Komal’s objection to Gallagher’s documentary evidence is overruled. Gallagher
submitted two affidavits that together support the admissibility of nearly all the documents. The
first affidavit, from Melchers, attaches various meeting notes, emails, performance reviews, and
PIP documents, and avers that those documents either were drafted by him or were created in the
normal course of business overseen by him. The second affidavit, from Sara Eggers, a Gallagher
Corporate Human Resources Manager who serves as a custodian of Gallagher’s employment
documents and policies, attaches other documents and avers to their accuracy. The affidavits are
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sufficient to support the admissibility of the attached documents as business records, permitting
Gallagher to deploy them at the summary judgment stage. See O’Grady v. Commonwealth
Edison Co., 2010 WL 4223212, at *2 (N.D. Ill. Oct. 19, 2010); Lee v. Anthony Wayne Servs.,
2005 WL 1459440, at *3 (N.D. Ind. June 20, 2005).
Some of the documents attached to Gallagher’s Local Rule 56.1 statement are not
addressed by the affidavits. But Komal admitted nearly all of the factual allegations based on
those documents. See Doc. 46 at ¶¶ 8-9, 13-14, 19, 30, 32, 45, 47, 56, 64-65. Once a party
admits that an unauthenticated exhibit contains truthful information, “the court may consider the
material in that exhibit because ‘an admission is, of course, admissible evidence.’” Woods, 234
F.3d at 989 (quoting In re Sunset Bay Assocs. v. Eureka Fed. Sav. & Loan Ass’n, 944 F.2d 1503,
1513-14 (9th Cir. 1991)). To the extent the factual allegations and documents refer to Komal’s
allegedly inadequate job performance, this court considers the allegations only for the fact that
Komal’s supervisors claimed that Komal was performing inadequately, not for the truth of the
matter asserted in the documents—i.e., that Komal actually was performing inadequately. See
Stewart v. Henderson, 207 F.3d 374, 377 (7th Cir. 2000) (in Title VII case, affirming use of
employment committee chairperson’s affidavit as evidence of chairperson’s state of mind when
he recommended against promoting plaintiff to managerial position, but not as evidence that
plaintiff actually had the shortcomings that chairperson believed he had).
II.

Retaliation Claim (Count I)
Count I alleges that Gallagher retaliated against Komal in violation of Title VII and

§ 1981 after he complained to Melchers about the “terrorist” statement. Title VII forbids an
employer from discriminating against an employee who “opposed any practice” prohibited by
Title VII or who “made a charge, testified, assisted, or participated in any manner in an
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investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). “The
antiretaliation provision seeks to prevent employer interference with ‘unfettered access’ to Title
VII’s remedial mechanisms … by prohibiting employer actions that are likely ‘to deter victims
of discrimination from complaining to the EEOC,’ the courts, and their employers.” Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997)). Section 1981 “prohibits racial discrimination in making and enforcing
contracts, [and] encompasses retaliation claims.” Stephens v. Erickson, 569 F.3d 779, 786 (7th
Cir. 2009). Retaliation under both provisions implicates the same elements. See Humphries v.
CBOCS W., Inc., 474 F.3d 387, 403-04 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008).
To survive summary judgment on his retaliation claim, Komal may proceed under either
the direct or indirect method of proof. Id. at 404. Only the direct method need be considered
here. Under the direct method, Komal must present evidence that (1) he engaged in a statutorily
protected activity; (2) he suffered a materially adverse employment action; and (3) a causal
connection exists between the two. Ibid. (citing Burlington N., 548 U.S. at 68-69). Gallagher
concedes that Komal engaged in statutorily protected activity when he brought the “terrorist”
incident directly to Melchers’s attention in December 2007. (Komal identifies two other
protected activities—bringing the “terrorist” incident to his direct supervisor’s attention in
December 2006, and filing his pre-termination EEOC charge in July 2008—but his summary
judgment papers do not contend that Gallagher retaliated against him for those activities.)
Gallagher also concedes that Komal’s termination was a materially adverse employment action.
Gallagher disputes, however, that a causal connection exists between Komal’s complaint to
Melchers in December 2007 and Komal’s October 2008 termination.

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To establish a causal connection, Komal may rely on either direct or circumstantial
evidence. See Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 673 (7th Cir. 2011).
Direct evidence of retaliation typically requires an admission of discriminatory animus, see
Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009), and is “predictably rare,”
Stephens, 569 F.3d at 787. Indirect evidence of retaliation may consist of “a convincing mosaic
of circumstantial evidence that allows a jury to infer” that the adverse employment action arose
from retaliation. Phelan v. Cook Cnty., 463 F.3d 773, 779-80 (7th Cir. 2006) (citation omitted).
A “convincing mosaic” may be established by “suspicious timing, ambiguous statements oral or
written, behavior toward or comments directed at other employees in the protected group, and
other bits and pieces from which an inference of” causation might be drawn. Silverman v. Bd. of
Educ. of the City of Chicago, 637 F.3d 729, 734 (7th Cir. 2011) (citation omitted). The
appropriate focus “is not whether the evidence offered is direct or circumstantial but rather
whether the evidence points directly to a discriminatory reason for the employer’s action.”
Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008) (internal quotation marks and citation
omitted).
Komal maintains that circumstantial evidence establishes the necessary causal link,
arguing that “[a]t the same time that [he] complained to Melchers, the plan to terminate him was
set in action.” Doc. 47 at 5. According to Komal, the plan was evidenced by (1) newlygenerated evidence of performance deficiencies; (2) a negative performance review in 2008; (3)
Melchers’s direct involvement in Komal’s 2008 review; (4) Komal’s placement on a PIP and
Melchers’s repeated encouragement that he quit; and (5) Komal’s termination despite his
“exemplary” work following the PIP. Komal concludes that “[t]he timing issue coupled with the

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additional evidence that Melchers went out of his way to sabotage [him] here is more than
sufficient to establish causation.” Id. at 6.
The parties disagree over whether the timing of the two key events—Komal’s October
2008 termination followed his December 2007 complaint to Melchers by ten months—supports
or undermines causation. Both parties overemphasize the issue, as timing has never been
“dispositive in proving or disproving a causal link” between an employee’s complaint about
discrimination and a subsequent adverse employment action. Sitar v. Indiana Dep’t of Transp.,
344 F.3d 720, 728 (7th Cir. 2003); see also Argyropoulos v. City of Alton, 539 F.3d 724, 734
(7th Cir. 2008) (“suspicious timing, standing alone, ‘will rarely be sufficient … to create a
triable issue’”) (quoting Culver v. Gorman, 416 F.3d 540, 546 (7th Cir. 2005)); Burks v. Wis.
Dep’t of Transp., 464 F.3d 744, 758-59 (7th Cir. 2006) (“suspicious timing alone … does not
support a reasonable inference of retaliation” because the “mere fact that one event preceded
another does nothing to prove that the first event caused the second”) (citation omitted).
As it happens, Komal need not rely exclusively on timing, as other circumstantial
evidence, together with timing, is sufficient to permit a jury to conclude that he was terminated
for complaining directly to Melchers about the “terrorist” incident. Komal presented evidence
that Melchers tried to convince him to drop his complaint, and that when he refused, Melchers
pressured him to resign. Doc. 46 at ¶ 79; Doc. 46-2 at 110-13. Whether Melchers pressured
Komal to drop the complaint, what Melchers intended by encouraging a “graceful exit,” and how
Melchers went about that process are disputed questions of fact that counsel against summary
judgment. See Owens-Floyd v. City of Chicago, 2007 WL 4365324, at *5 (N.D. Ill. Dec. 11,
2007) (claim survived summary judgment where plaintiff presented evidence that, among other
things, her supervisor discouraged her from filing charges). In addition, Melchers took the
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unusual and possibly unique step of taking direct responsibility of Komal’s performance review
shortly after Komal complained to him about the “terrorist” comment. Although Gallagher
maintains Melchers was simply trying to ensure fairness in the review process, given the rapid
turnover among Komal’s direct supervisors during the relevant period, Melchers did not assume
responsibility for the reviews of other employees whom he indirectly supervised and who
experienced the same turnover of direct supervisors. The unusualness of Melcher’s act (Komal
is one of 270 employees Melchers indirectly supervises, and one of several who saw their direct
supervisors change), in addition to Melchers’s efforts to have Komal drop his complaint and
leave the company, would permit a reasonable jury to find causation. See Sylvester v. SOS
Children’s Vills. Ill., Inc., 453 F.3d 900, 905 (7th Cir. 2006) (unusual circumstances surrounding
the termination prevented summary judgment).
Under the Seventh Circuit’s recent decision in Silverman v. Board of Education of the
City of Chicago, supra, because Komal has presented circumstantial evidence that would allow a
jury to infer causation under the direct method, “the defendant’s summary judgment motion
necessarily must fail, in contrast to the burden-shifting approach of the indirect, McDonnell
Douglas method,” which gives the defendant an opportunity to establish a valid, non-retaliatory
reason for the termination. 637 F.3d at 734 n.3. Earlier Seventh Circuit authority appears to
point in a different direction, holding that “[a]lthough we often discuss the employer’s proffer of
a nonretaliatory explanation and the corresponding pretext inquiry in terms of the McDonnell
Douglas burden-shifting framework embodied by the indirect method, an employee’s failure to
case doubt on an employer’s nonretaliatory explanation will also doom a retaliation claim under
the direct method.” Argyropoulos, 539 F.3d at 736 n.6 (citations omitted).

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Komal could survive summary judgment under the direct method even if he were
required to cast doubt on Gallagher’s nonretaliatory explanation for his termination—that
Komal’s substandard performance justified the termination irrespective of any retaliatory
motive. There are material factual disputes regarding whether Komal successfully completed his
PIP and whether Komal performed satisfactorily after the PIP. Komal’s PIP ended in late June
2008, over three months before his October 2008 termination; this is a potentially material gap
given Melchers’s inability to identify or recall any performance problems between June and
October, Doc. 46-1 at 71-72, and given Gallagher’s admission that Komal did not have any
attendance issues after the PIP, Doc. 53 at ¶ 88. Considered in conjunction with Melchers’s
assumption of direct responsibility for Komal’s performance review and his efforts to have
Komal resign, Komal has adduced sufficient evidence to allow a jury to reject Gallagher’s
nondiscriminatory rationale for his termination.
This is not to say, of course, that Komal will prevail at trial. There is more than enough
evidence to allow a reasonable jury to conclude that Komal’s performance was truly
substandard, that Gallagher afforded him ample opportunities to improve, and that his
termination was wholly justified. But the record does not permit that determination to be made
on summary judgment.
III.

Discrimination Claim (Count II)
Komal’s opposition to summary judgment on the discrimination claim states, in its

entirety: “For the same reasons as those set forth above [with respect to the retaliation claim],
summary judgment on the issue of discrimination should be denied.” Doc. 47 at 9. The problem
with this approach, among others, is that the retaliation and discrimination claims involve
distinct theories of liability and share few common facts. The retaliation claim alleges that
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Komal was terminated because he complained to Melchers about the “terrorist” incident. The
discrimination claim concerns three instances of alleged harassment—the “terrorist” incident and
the two times Komal was asked if he was a Muslim—and two respects in which Komal’s access
to computer hardware allegedly was limited. Doc. 46 at ¶¶ 68-72. Accordingly, Komal cannot
rely on his arguments regarding the retaliation claim to stave off summary judgment on his
discrimination claim. See Essex v. United Parcel Serv., Inc., 111 F.3d 1304, 1308 (7th Cir.
1997) (“the elements of a prima facie case of race discrimination and retaliation are different”).
It follows that Komal forfeited his discrimination claim. See Witte v. Wis. Dep’t of Corr., 434
F.3d 1031, 1038 (7th Cir. 2006) (party forfeits any arguments it fails to raise in a brief opposing
summary judgment); Palmer v. Marion Cnty., 327 F.3d 588, 597-98 (7th Cir. 2003) (claim
deemed abandoned when plaintiff “failed to delineate his negligence claim in his district court
brief in opposition to summary judgment”); Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d
1195, 1197 (7th Cir. 1999) (arguments not presented to district court in response to summary
judgment motion are waived).
Even putting aside Komal’s general forfeiture of his discrimination claim, the claim fails
in its particulars. The three alleged incidents of harassment, involving three different individuals
over the course of two years, are not actionable under Title VII or § 1981. Asking Komal
whether he was a Muslim was clumsy and discourteous, violating the rules of workplace
etiquette, but nothing more. The “terrorist” statement was an isolated incident. As Gallagher
maintained, “inappropriate but isolated comments that amount to no more than ‘stray remarks’ in
the workplace will not” establish a harassment claim. Venters v. City of Delphi, 123 F.3d 956,
973 (7th Cir. 1997); see also Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir. 2002);
Randle v. La Salle Telecomms., Inc., 876 F.2d 563, 569 (7th Cir. 1989). Komal’s failure to
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respond on the merits to this argument, or to any of the other arguments Gallagher specifically
directed towards the harassment allegations (Doc. 36 at 3-6), operates as a forfeiture of any
discrimination claim based on harassment. See Ho v. Taflove, __ F.3d __, 2011 WL 2175878, at
*7-8, *10 (7th Cir. June 6, 2011).
With respect to the alleged discrimination against Komal regarding access to computer
systems, Gallagher maintained that the mere denial of access to certain computer programs is not
a materially adverse employment action and therefore cannot support a discrimination claim.
See Feiss v. Metro. Water Reclamation Dist. of Greater Chicago, 2003 WL 1964212, at *6-7
(N.D. Ill. Apr. 28, 2003); EEOC v. Outsourcing Solutions Inc., 2002 WL 31409584, at *10 (N.D.
Ill. Oct. 24, 2002) (where there is no diminution of pay or benefits, deprivation of certain
computer resources was not an adverse employment action). As with the harassment allegations,
Komal’s failure to respond to this argument or to any of the other arguments Gallagher
specifically directed towards the unequal terms and conditions component of his discrimination
claims (Doc. 36 at 7-10) operates as a forfeiture. See Ho, 2011 WL 2175878, at *7-8, *10.
Conclusion
For these reasons, Gallagher’s motion for summary judgment is granted as to the
discrimination claim and denied as to the retaliation claim. This case will proceed to trial on the
retaliation claim.

June 13, 2011
United States District Judge

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