Bagwe v. Sedgwick Claims Management Services, Inc. et al

Filing 172

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 9/5/2014. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RATNA BAGWE,

)
)
Plaintiff,
)
)
v.
)
)
SEDGWICK CLAIMS MANAGEMENT )
SERVICES, INC., TAMMY LECLAIRE, )
and ANGELA PAPAIOANNOU,
)
)
Defendants.
)

No. 11 CV 2450
Magistrate Judge Young B. Kim

September 5, 2014

MEMORANDUM OPINION and ORDER
Ratna Bagwe, who was born in India, worked as an operations manager for
Sedgwick Claims Management Services, Inc., under the supervision of Tammy
LeClaire and Angela Papaioannou (collectively, “the defendants”), until she was
fired in August 2009. The defendants say that they fired Bagwe because she had
poor leadership and communication skills, marked by her tendency to engage in
distracting and unnecessarily confrontational “email wars” with colleagues. Bagwe
claims they fired her because of her national origin and race and to retaliate against
her for complaining about discrimination.

In April 2011 she filed this

discrimination and retaliation lawsuit under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, and
the Illinois Human Rights Act (“IHRA”), 775 ILCS 5/1-102, et seq.1 The parties

Bagwe’s complaint also includes a defamation claim, but in her response to the
current motion she asserts that she “withdraws the prosecution of her defamation

1

have consented to this court’s jurisdiction.

See 28 U.S.C. § 636(c); (R. 33).

Currently before the court is the defendants’ motion for summary judgment.
(R. 142.) For the following reasons, the motion is granted:
Background
As an initial matter, it must be noted that although the majority of the facts
set forth in the parties’ Local Rule 56.1 statements are either undisputed or
immaterial to the case’s outcome, there are repeated instances in which one side
states that a fact is disputed, but to demonstrate the dispute, the party either cites
record evidence that does not contradict the relevant fact or relies on supposed
inferences that could be made to contradict a fact rather than actual conflicting
evidence. As an example, Bagwe repeatedly states that a fact is undisputed, but
then writes “Plaintiff disputes any inference” that the fact means a particular thing.
(See, e.g., R. 162, Pl.’s Resp. to Defs.’ Facts ¶¶ 4, 16, 17, 23, 36.) At this phase,
Bagwe will enjoy the benefit of every reasonable inference that can be drawn in her
favor. See O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). But
arguing over the possible inferences stemming from an otherwise undisputed fact
does not render that fact in dispute. Where a party has attempted to dispute a
material fact without pointing to appropriate supporting evidence or otherwise has
tried to manufacture a dispute where none exists, the fact is deemed admitted. L.R.
56.1(b)(3); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

The following

undisputed facts are taken from the parties’ Local Rule 56.1 statements of facts
claims.” (R. 157, Resp. at 6 n.3.) This court treats that statement as a request to
voluntarily dismiss the defamation claim.
2

(unless otherwise indicated), and will be viewed, as they must be at this stage, in
the light most favorable to Bagwe. See O’Leary, 657 F.3d at 630.
Bagwe was born in India and is of Indian descent. (R. 162, Pl.’s Resp. to
Defs.’ Facts ¶ 3.) Sedgwick is a company that provides claims management services
to employers for liabilities including workers’ compensation and disability claims.
(Id. ¶ 1.)

Sedgwick hired Bagwe into its Chicago office in March 2001 to help

service its account with AT&T.

(Id. ¶ 3.)

From 2001 until late 2007, Bagwe

reported to Operations Manager DeLaine Simmons. (Id. ¶¶ 7, 11-12.) In 2005
Bagwe was promoted to the position of Assistant Manager II, receiving a merit
increase in her compensation but not a promotional increase. (Id. ¶ 12.) In 2006
she received a Visionary Performer Award—the highest level award for Sedgwick’s
company-wide employee recognition program. (R. 166, Defs.’ Resp. to Pl.’s Facts
¶ 2.)
From February until September 2007, Simmons was assigned to a project in
California, and Bagwe assisted with some of Simmons’s duties in the interim.
(R. 162, Pl.’s Resp. to Defs.’ Facts ¶ 13.) At the time she did not receive a pay
increase for performing these interim functions.

When Sedgwick revised its

reporting structure for the AT&T account in late 2007 Bagwe was promoted. (Id.
¶¶ 8, 15.) At that time Simmons stepped into a newly created role as Area Manager
for clients other than AT&T, and Papaioannou became the Area Manager for AT&T.
(Id. ¶ 8.) Bagwe, in turn, stepped into Simmons’s previous position as Operations
Manager III in Chicago, earning her a promotional raise, which was followed by

3

another raise seven months later. (Id. ¶¶ 8, 15.) In this new role, Bagwe reported
to Papaioannou, who reported to LeClaire. (Id. ¶¶ 4-5, 15.)
A.

Bagwe’s Complaint About Her Compensation
Throughout Bagwe’s tenure with Sedgwick, decisions about her compensation

were made by her direct supervisors with approval from management and
Sedgwick’s human resources office, known within the company as Colleague
Resources. (Id. ¶ 16.) Although budgeting issues meant that yearly compensation
increases varied, a 3% increase was considered a standard pay raise and a 5%
increase was considered a pay raise reserved for outstanding performance. (Id.
¶ 17.)

During an early April 2008 conference call, Bagwe complained to

Papaioannou

and

Colleague

Resources

Manager

Carla

Street

about

her

compensation. (Id. ¶ 10; R. 166, Defs.’ Resp. to Pl.’s Facts ¶ 18.) Specifically, she
complained that back in 2005 she did not receive a promotional increase and
asserted that she should have received a pay increase in 2007 when she functioned
as the Interim Operations Manager during Simmons’s absence. (R. 162, Pl.’s Resp.
to Defs.’ Facts ¶ 19.)
On April 9, 2008, Papaioannou emailed LeClaire a summary of Bagwe’s
compensation concerns, including Bagwe’s belief that her pay and others’ pay was
not “equitable.” (R. 166, Defs.’ Resp. to Pl.’s Facts ¶ 19.) Two days later Bagwe
followed up on the conversation by sending a memo to Street that she had prepared
for Papaioannou’s attention describing her concerns about her compensation and
other employees’ pay. (Id. ¶ 21.) Bagwe’s memo does not reference her race or

4

national origin nor does it assert that any pay disparity was the product of
discrimination.

(R. 163, Pls.’ Facts, Ex. 24.)

Much of the memo addresses

Sedgwick’s application of the 3% merit increase guidelines and questions the
breakdown of merit increases awarded to other employees. (Id.) Nowhere in that
discussion does she mention the race, national origin, or any other protected
category as it applies to those employees. (Id.) Nor does she identify what specific
salary or increase she was seeking. Bagwe’s compensation complaints were based
partly on her assertion that Simmons had not fulfilled her promise of a promotional
increase in 2005. (R. 162, Pl.’s Resp. to Defs.’ Facts ¶¶ 19, 22.)
Bagwe’s assertion regarding Simmons’s unfilled promise was the subject of
several emails between the two, beginning with Simmons’s email denying having
promised any such deal. She wrote to Bagwe that “it is not always what we say but
how we say it” and that “the manner in which you have chosen to pursue these
issues is unprofessional and a disservice to our colleagues.” (R. 163, Pl.’s Facts,
Ex. 25.) Simmons asked Bagwe to forward further concerns or issues about her to
Colleague Resources. (Id.) Bagwe then responded to Simmons stating that “I will
respond to you with a lot more documents and to all your statements.”

(Id.)

Simmons responded by telling Bagwe she was “done with this” and that whatever
further discussion Bagwe wanted to engage in should be sent to her supervisors or
Colleague Resources. (Id.) Bagwe responded to her again, saying “I can’t believe a
simple request has turned into this bitterness and attack on me.” (Id.)

5

At that point, Simmons sent Regional Colleague Resources Director
Stephanie Simpson an email making a formal complaint against Bagwe, saying she
felt that Bagwe had attacked her personal integrity. (Id.; R. 162, Pl.’s Resp. to
Defs.’ Facts ¶ 26.) According to Simmons, Bagwe’s complaint was offensive because
Simmons had never promised her any “side deal,” had compensated her within the
required budget constraints, and because she expected any compensation
complaints to be raised in a timely manner. (R. 162, Pl.’s Resp. to Defs.’ Facts ¶ 25.)
After Simmons sent the email, LeClaire encouraged her to withdraw the complaint,
and Simmons did so the same day. (Id. ¶ 26.)
B.

Bagwe’s Heated Conversation with Colleagues
Eleven months after she raised her compensation concerns, on January 7,

2009, Bagwe and a colleague named Ann Coyle got into a heated conversation near
Bagwe’s office. (Id. ¶ 59.) According to Bagwe, Coyle began grilling her about
problems with reports and diary submissions. (Id.) At some point AT&T Account
Executive Charles French heard the raised voices and joined the conversation. (Id.
¶¶ 9, 60.)

Coyle told French that Bagwe had accused her of making an

inappropriate comment about another colleague.

(Id.)

French asked Bagwe to

describe the remarks and to identify the person who ascribed them to Coyle, but
Bagwe did not do so. (Id.) Following the conversation, French reported to Street
that Bagwe had accused Coyle of making inappropriate comments and voiced the
opinion that Coyle’s behavior was inappropriate. (Id. ¶ 62.) French told Street that
he was concerned that Bagwe had made vague accusations and that he was upset

6

that she had not reported the accusations against Coyle to Colleague Resources
when she first heard them. (Id.)
The day after the confrontation, Bagwe emailed Papaioannou and copied
French requesting a meeting to discuss Coyle’s behavior. (R. 166, Defs.’ Resp. to
Pl.’s Facts ¶ 31.) On February 10, 2009, Bagwe, French, and possibly Street met to
discuss Bagwe’s allegations about Coyle.

(R. 162, Pl.’s Resp. to Defs.’ Facts ¶ 63.)

During the meeting, Bagwe said that on June 17, 2008, she, LeClaire, and Coyle
were at a bar during a business trip to Atlanta, when they began discussing
LeClaire’s divorce.

(Id. ¶ 64.)

According to Bagwe, during that conversation

LeClaire made a comment advising Bagwe to get rid of her “old Indian husband,”
and Coyle offered to help her find a white man. (Id.) Bagwe also disclosed that
during a work-related evening with a client at a bar in Texas, Coyle had made fun
of a co-worker’s homosexuality with a “clapping-type hand gesture.”

(Id. ¶ 65.)

Bagwe did not report the incidents to anyone at the time. (Id.)
C.

The Performance Improvement Plan
From mid-2008 through Bagwe’s termination, LeClaire observed that Bagwe

tended to deflect criticism by making allegations about other employees. (Id. ¶¶ 3031.) LeClaire and Papaioannou also testified that they were aware that Bagwe
engaged in what they described as “email wars” with other employees. (Id. ¶ 33.)
They testified that experiences with Bagwe sending “confrontational and
escalating” emails caused some employees to avoid basic correspondence with her.
(Id.) For example, in April 2008 one of Bagwe’s team members, Tanya Warner,

7

complained to Papaioannou that Bagwe was not providing her with the information
she needed to do her job and that Bagwe’s communications with her were
unnecessarily confrontational in style. (Id. ¶ 56.) Papaioannou reassigned Warner
so that she no longer reported directly to Bagwe. (Id.)
In late 2008 or early 2009, French began noticing what he considered to be
problems with Bagwe’s team’s performance, error rate, supervision, and diary
completion. (Id. ¶ 35.) He raised the issues with Bagwe and Papaioannou at that
time. (Id.) In January 2009 French sent Papaioannou an email expressing his
opinion that Bagwe’s team was suffering from poor leadership and negativity. (Id.
¶ 36.) He forwarded the email to Coyle, commenting that the “[g]loves are off.” (Id.
¶ 38; R., 163, Pl.’s Facts, Ex. 53.)

In February 2009 French prepared a

memorandum addressed to LeClaire, with copies to Street and Papaioannou,
outlining his issues relating to Bagwe’s performance, including specific examples of
what he perceived as deficiencies in her operations, communications, and judgment.
(R. 162, Pl.’s Resp. to Defs.’ Facts ¶ 38.) He wrote that he had called a meeting with
Bagwe and her team regarding performance issues, but felt that the team “failed to
take ownership of the current issues and they failed to provide one action plan to
address the deficiencies.” (R. 145, Defs.’ Facts, Ex. I, French Dep., Ex. 80 at 1.) He
also wrote about the meeting in which Bagwe accused Coyle of making
discriminatory comments about another colleague but failed to provide any specifics
when French asked for them. (Id. at 2.) He wrote that he told Bagwe to address

8

such issues “immediately and not wait months or a year to bring them up.” (Id.) He
summarized his position by writing that:
Overall I believe that [Bagwe] demonstrates poor leadership skills in
trying to support the leadership on the program and for not taking
appropriate actions to address issues that are brought to her attention.
She is very re-active and defensive on her positions and rarely makes
any suggestions or attempts to be pro-active in her role as the
Operations Manager in Chicago. She has a tendency to divide the
teams rather than unite them toward a common goal.
(Id. at 3.)
LeClaire, Papaioannou, and Street met to discuss Bagwe’s performance and
decided to prepare a written Performance Improvement Plan (“PIP”). (R. 162, Pl.’s
Resp. to Defs.’ Facts ¶ 40.)

The PIP referenced French’s concerns and

Papaioannou’s disappointment with how Bagwe handled the team meeting
referenced in his memo.

(R. 145, Defs.’ Facts, Ex. O, Bagwe Dep., Ex. 17 at

Sedgwick 1225.) The PIP also noted that Bagwe had complained via email that
Coyle made disparaging remarks during a staff meeting, but that Papaioannou had
to ask Bagwe several times to provide the names of those examiners before she
complied. (Id. at Sedgwick 1226.) Papaioannou called Bagwe’s participation in that
email exchange “challenging, accusatory, inappropriate and insubordinate.” (Id.)
Papaioannou criticized Bagwe for failing to provide specifics after making
accusations about Coyle’s comments and for failing to address such issues when
they arise as opposed to “a year later.” (Id. at Sedgwick 1227.) The PIP required
Bagwe to attend leadership training and to meet weekly with Papaioannou to
discuss her progress in meeting the identified goals. (R. 162, Pl.’s Resp. to Defs.’

9

Facts ¶ 44.) It also explicitly instructed that “[i]f any portion of the corrective action
required does not occur immediately or during the specified timeframe given,
immediate termination of employment may occur without further notice.” (R. 145,
Defs.’ Facts, Ex. O, Bagwe Dep., Ex. 17 at Sedgwick 1228.)
Papaioannou and LeClaire presented the PIP to Bagwe during a meeting on
March 12, 2009. (R. 162, Pl.’s Resp. to Defs.’ Facts ¶ 41.) At one point the meeting
became confrontational, with both Bagwe and LeClaire raising their voices. (Id.)
According to Bagwe, LeClaire pointed her finger at Bagwe and told her to “be
careful.” (Id.)
On April 1, 2009, Bagwe presented Papaioannou, Simpson, and Street with
an 18-page, single-spaced written rebuttal to the PIP along with a binder full of
documents. (Id. ¶ 45.)

She used the word “retaliation” once in her rebuttal, in

reference to a meeting French and Papaioannou convened after she asked to discuss
Coyle’s behavior. (Id.; R. 145, Defs.’ Facts, Ex. O, Bagwe Dep., Ex. 17, at Sedgwick
1231.) Nowhere in the memorandum did Bagwe mention her race or national origin
or say that she believed the PIP itself to be an act of retaliation. (R. 162, Pl.’s Resp.
to Defs.’ Facts ¶ 45.) LeClaire and Papaioannou reviewed the memorandum but
concluded that Bagwe’s rebuttal did not warrant the removal of the PIP. (Id. ¶ 47.)
D.

Bagwe’s Discrimination Complaints
On April 3, 2009, two days after she presented her PIP rebuttal, Bagwe sent

Simpson a written complaint regarding discrimination. (Id. ¶ 50.) She wrote that
she had endured “discrimination, harassment, bullying, and a hostile work

10

environment” and felt she was “left with no choice” but to come forward after
Papaioannou and LeClaire gave her the PIP. (R. 145, Defs.’ Facts, Ex. O, Bagwe
Dep., Ex. 17 at Sedgwick 1247.)

Bagwe wrote that LeClaire “made a huge

leadership

against

issue”

in

retaliation

her

2008

complaints

about

her

compensation. (R. 166, Defs.’ Resp. to Pl.’s Facts ¶ 43.) She said that during the
PIP meeting LeClaire “blatantly said ‘You think you are good but you are no good.’”
(Id.; R. 145, Defs.’ Facts, Ex. O, Bagwe Dep., Ex. 17 at Sedgwick 1247.) She wrote
that she felt “threatened” and that Papaioannou and LeClaire “are out to get” her.
(R. 145, Defs.’ Facts, Ex. O, Bagwe Dep., Ex. 17 at Sedgwick 1247.) Simpson opened
a discrimination investigation and forwarded Bagwe’s complaint to Senior Vice
President of Colleague Resources Rachel Jackson and Executive Vice President and
Chief People Officer Terri Browne. (R. 166, Defs.’ Resp. to Pl.’s Facts ¶¶ 44-45;
R. 162, Pl.’s Resp. to Defs.’ Facts ¶¶ 10, 50.)
During the pending investigation, on May 1, 2009, Bagwe contacted Street to
report that during a meeting in which employees were gathered to discuss company
protocol for responding to the H1N1 virus, Coyle had made a comment to another
employee, Rick Hernandez. (R. 162, Pl.’s Resp. to Defs.’ Facts ¶ 66.) Bagwe said
she did not hear the whole conversation, but she overheard Coyle say “that’s why I
don’t live in Pilsen” and used the term “your people” in talking to Hernandez. (Id.)
According to Bagwe, in June or early July 2009 she was leaving a lunch with
LeClaire and inquired about her sister-in-law. (Id. ¶ 72.) Bagwe says that LeClaire

11

responded, “which one, the Indian?” and then said that she did not like her sisterin-law. (Id.)
On June 15, 2009, Simpson completed a report outlining her investigation of
Bagwe’s complaints. (Id. ¶ 69.) In her report she wrote that Bagwe’s compensation
was fair based on her time in her position. (Id.) As for Bagwe’s complaints about
Coyle, Simpson wrote that Coyle had not violated an EEO policy but recommended
that French formally address her inappropriate interactions. (Id.) Simpson and
Street met with Bagwe on June 17, 2009, to present the report. (R. 166, Defs.’ Resp.
to Pl.’s Facts ¶ 51.) They told Bagwe that she would receive a “spot bonus” in
recognition for her 2007 Interim Operations Manager work. (Id.)
Seven days after Simpson issued the report concluding the investigation
Bagwe emailed Simpson reiterating her compensation complaints and referencing a
spreadsheet comparing her compensation to others’. (R. 162, Pl.’s Resp. to Defs.’
Facts ¶ 70.) According to Bagwe, she was the lowest paid Operations Manager on
the AT&T account. (Id.) Bagwe asked in the email, “[i[f discrimination is not the
reason, please help me understand why my repeated requests to have compensation
addressed based solely on the merits of the situation have not been considered.”
(R. 166, Defs. Resp. to Pl.’s Facts. ¶ 53.) Bagwe asked Simpson not to share the
email with Papaioannou or LeClaire because of the “backlash” she experienced in
2008. (Id.) Simpson forwarded Bagwe’s salary report to Jackson, who reviewed the
report and advised Simpson to tell Bagwe that the investigation was closed. (Id.

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¶ 70.) After Simpson received Jackson’s advice, on July 28, 2009, she drafted a
close out letter telling Bagwe that there was no evidence of pay inequity. (Id. ¶ 71.)
E.

Bagwe’s Termination
On July 16, 2009, Simmons ran into Warner (the member of Bagwe’s team

who had been reassigned to report to Papaioannou) in their office lobby. (Id. ¶ 84.)
Warner was very upset and crying.

(Id.)

She told Simmons that Bagwe was

harassing her over email. (Id.) Simmons called LeClaire that day (Papaioannou
was away on vacation) to relay what Warner had said. (Id. ¶¶ 84-85.) LeClaire
talked to Warner about the incident, who told her that confrontational emails with
Bagwe were a constant problem. (Id. ¶ 85.) When Papaioannou returned from her
trip, LeClaire told her about the conversation with Warner and discussed with her
Bagwe’s overall performance during the previous two years.

(Id. ¶ 87.)

Papaioannou was aware that there had been recent accusations of inappropriate
emails between Bagwe and colleagues because one of her subordinates had emailed
Papaioannou during her vacation to report that such emails were “non-stop.” (Id.
¶ 89.)

LeClaire and Papaioannou agreed that LeClaire should recommend

terminating Bagwe. (Id. ¶ 94.) LeClaire brought that recommendation to Browne,
who approved the decision. (Id. ¶ 97.)
Bagwe was terminated on August 13, 2009, during a meeting with Street and
Jackson.

(Id. ¶ 100.)

Bagwe claims that before the meeting she stopped by

Papaioannou’s office to say hello and as she was walking away heard Papaioannou
say “Indian Bitch.”

(Id. ¶ 101.)

Although Sedgwick maintains a Termination

13

Questionnaire and Checklist to guide the termination process, none was completed
with respect to Bagwe’s termination. (R. 166, Defs.’ Resp. to Pl.’s Facts ¶¶ 13, 16.)
Following a competitive posting process Bagwe’s position was filled by a
white American. (R. 162, Pl.’s Resp. to Defs.’ Facts ¶ 104.) Bagwe’s replacement
suffered leadership problems and failed to adequately learn some of the technical
aspects of his role. (Id.) Papaioannou counseled the replacement but when his
performance did not improve, and after he settled a case outside his authority,
Sedgwick fired him. (Id.)
Bagwe claims that after her termination Sedgwick interfered with her
attempts to get jobs at several companies. (Id. ¶ 108.) Her most specific assertion
is that someone at Sedgwick told the CEO of one of her potential employers that she
is a “problem.” (R. 166, Defs.’ Resp. to Pl.’s Facts ¶ 104.) Despite these difficulties,
Bagwe gained employment first at Career Education Corporation and then at
Northwestern Memorial Hospital. (R. 162, Pl.’s Resp. to Defs.’ Facts ¶ 105.) She
was terminated for cause from both positions, for issues such as “failure to
communicate, preoccupation with other employees’ performance and disciplinary
issues, failure to accept constructive criticism, defensive behavior, and engaging in
improper email communication [and] ‘email wars.’” (Id.)
Analysis
Before getting to the heart of the parties’ summary judgment positions the
court must address the preliminary considerations the defendants raised in their
opening brief with respect to the nature and timing of Bagwe’s claims.

14

The

defendants first argue that to the extent Bagwe is raising a separate pay
discrimination claim, any such claim is untimely. The defendants point out that
under Title VII and the IHRA a plaintiff is required to file a charge with the EEOC
or state equivalent before filing a federal suit. See Doe v. Oberweiss Dairy, 456 F.3d
704, 708 (7th Cir. 2006). Under Title VII, the EEOC charge covers a window of 300
days before the date the charge is filed. 42 U.S.C. § 2000e-5(e)(1). IHRA claims
must be filed with the EEOC or the Illinois Human Rights Department within 180
days of the discriminatory act. 775 ILCS 5/7A-102(A)(1), (A-1)(1); Scott v. City of
Kewanee, No. 13 CV 1292-SLD, 2014 WL 1303025, at *4 (C.D. Ill. March 28, 2014).
If a plaintiff does not file a charge regarding a discrete claim within that window,
her claim is time-barred. See Bass v. Joliet Public Sch. Dist. No. 86, 746 F.3d 835,
839 (7th Cir. 2014).
The defendants point out that Bagwe filed her EEOC charge on December 12,
2009, and they argue that any claim based on pay disparity arising in 2005 or 2007
falls outside of the administrative window. Similarly, they argue that under the
four-year statute of limitations applicable to claims arising under § 1981, see 28
U.S.C. § 1658, any claim Bagwe has for pay disparity arising under that statute is
barred to the extent the alleged disparity predates April 12, 2007. In her response
to the defendants’ motion for summary judgment, Bagwe fails to acknowledge, let
alone rebut, these arguments. Although she might have raised the argument that
her disparate pay claim is saved from the time bar because it rests on a continuing
violation, her response brief is silent on the issue, and so any such argument is

15

waived. See Malin v. Hospira, Inc., No. 13-2433, __ F.3d __, 2014 WL 3896175, at
*8 n.2 (7th Cir. Aug. 7, 2014) (declining to consider whether continuing violation
would allow the plaintiff to reach beyond statute of limitations where she failed to
raise argument); LG Elecs. v. Whirlpool Corp., No. 08 CV 242, 2009 WL 5579006, at
*3 (N.D. Ill. Nov. 23, 2009) (noting that a party waives arguments not presented to
court in response to summary judgment motion). Accordingly, although the court
will view any evidence regarding discriminatory pay disparity as potentially
supporting evidence for her timely raised discrimination claim, see Oest v. Ill. Dep’t
of Corrs., 240 F.3d 605, 614 n.4 (7th Cir. 2001), the court agrees that any separate
and distinct pay discrimination claim that arose before April 12, 2007, is timebarred.
The defendants also argue that any discrimination claim Bagwe is making
under § 1981 should be dismissed because, they say, the statute does not allow
recovery for acts of discrimination based on national origin.

Accordingly, the

defendants argue that only her race discrimination claims are viable under this
statute. Although it is true that national origin discrimination is not expressly
prohibited under § 1981, the Supreme Court has interpreted the statute broadly,
noting that it protects against intentional discrimination based on ethnicity or
ancestry. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987); see also
Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 n.4 (7th Cir. 2006). Given that
broad reading together with the fact that Bagwe’s § 1981 claims cover

16

discrimination and retaliation based on both race and national origin, the
defendants are not entitled to dismissal of those claims.
A.

Summary Judgment Standards
Summary judgment is appropriate if the moving party shows “that there is

no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56. Although reasonable inferences that can be
drawn from the facts will be viewed in Bagwe’s favor, she “is not entitled to the
benefit of inferences that are supported by only speculation or conjecture.” See
Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 599 (7th Cir. 2014)
(internal quotation omitted). At the same time, the court’s role at this stage is not
to “weigh the evidence or engage in fact-finding,” but rather to “simply determine
whether there is a genuine issue for trial.” Hasan v. Foley & Lardner LLP, 552
F.3d 520, 527 (7th Cir. 2009).

A genuine issue of “material fact exists if ‘the

evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 504 (7th Cir. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The parties agree that Bagwe’s Title VII, IHRA, and § 1981 claims are all
analyzed under the same evidentiary rubrics—the direct and indirect methods of
proof. (R. 143, Defs.’ Mem. at 5, n.3; R. 160, Pl.’s Resp. at 8); see Whitfield v. Int’l
Truck & Engine Corp., 755 F.3d 438, 442 (7th Cir. 2014) (noting that “Title VII
claims and 42 U.S.C. § 1981 claims incorporate the same liability standard”);
Hoosier v. Greenwood Hospitality Mgmt. LLC, No. 11 CV 3816, __ F.Supp.2d __,

17

2014 WL 1245112, at *5 (N.D. Ill. March 26, 2014) (noting that courts generally
apply same standards to IHRA, § 1981, and Title VII discrimination claims). But
rather than using her response brief to demonstrate how the record supports her
position specifically under either or both methods, Bagwe argues that the formal
distinction between the direct and indirect methods has been “jettisoned” and
simply lists a host of circumstantial evidence that she says can get her past
summary judgment on her discrimination and retaliation claims under either
method. (R. 160, Pl.’s Resp. at 5-6, 8-10.) Although a “growing chorus of opinions”
in the Seventh Circuit “have expressed frustration with the confusing ‘snarls and
knots’ of this ossified direct/indirect paradigm,” Hitchcock v. Angel Corps., Inc., 718
F.3d 733, 737 (7th Cir. 2013), the Seventh Circuit also has acknowledged that it is
not “authorized to abjure a framework that the Supreme Court has established,”
Green v. Am. Fed’n of Teachers/Ill. Fed’n of Teachers Local 604, 740 F.3d 1104,
1106 (7th Cir. 2014). Thus, although both methods are designed to answer the
same question—whether a jury could find unlawful discrimination or retaliation—
courts continue to consider the direct and indirect methods separately in analyzing
motions for summary judgment in employment discrimination cases. See Orton-Bell
v. Ind., No. 13-1235, __ F.3d __, 2014 WL 3566338, at *4 (7th Cir. July 21, 2014).
Bagwe explains her choice to forego presenting her evidence in light of the
established frameworks by asserting that “the sheer number of pieces of evidence
available” makes it difficult to organize, noting that she “nonetheless endeavors to
describe below some of the evidence on which a jury could rely to find in Plaintiff’s

18

favor.” (R. 160, Pl.’s Resp. at 13 (emphasis added).) Organizational difficulties
notwithstanding, this court may consider only the evidence she presents in response
to the motion in determining whether there are triable issues of fact. As numerous
cases make clear in frank terms, summary judgment is the “put up or shut up
moment in litigation,” meaning that “the non-moving party is required to marshal
and present the court with the evidence she contends will prove her case.”
Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010) (internal
quotations omitted). Failure to do so results in summary judgment for the moving
party. See Fed. R. Civ. P. 56(e); AA Sales & Assoc., Inc. v. Coni-Seal, Inc., 550 F.3d
605, 612-13 (7th Cir. 2008). Accordingly, in analyzing the current motion the court
has considered only that evidence that Bagwe actually has identified in her
response as supporting her position.
B.

Bagwe’s Claims of Race and National Origin Discrimination
To succeed on her status-based discrimination claims, Bagwe must show that

she is a member of a protected class, that she has been subjected to an adverse
employment action, and that the defendants took the adverse action because of her
membership in a protected class. See Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th
Cir. 2013). In other words, she must show “that the motive to discriminate was one
of the employer’s motives, even if the employer also had other, lawful motives that
were causative in the employer’s decision.”

See Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 133 S.Ct. 2517, 2523 (2013). She may do so under either the direct or

19

indirect methods of proof, and here, despite her argument that those paradigms are
outmoded, she has elected to proceed under both. (R. 160, Pl.’s Resp. at 11.)
1.

Direct Method

The direct method of proof requires Bagwe to show “either through direct or
circumstantial evidence that the employer’s decision to take the adverse job action
was motivated by an impermissible purpose, such as her race or national origin.”
See Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 938-39 (7th Cir. 2003). Direct
evidence requires “an admission of discriminatory intent,” Tank v. T-Mobile USA,
Inc., No. 13-1912, __ F.3d __, 2014 WL 3360476, at *2 (7th Cir. July 10, 2014), so it
is far more common for a plaintiff to rely on what has been described as “a
convincing mosaic of circumstantial evidence,” as Bagwe does here, see Teruggi v.
CIT Group/Capital Fin., Inc., 709 F.3d 654, 660 (7th Cir. 2013) (quotation omitted).
There are three broad categories of circumstantial evidence that plaintiffs typically
use to paint a picture of discrimination: “(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 employer offered a pretextual reason for
an adverse employment action.”

Tank, __ F.3d __, 2014 WL 3360476, at *2.

Circumstantial evidence must be enough to allow a rational jury to conclude that it
points “directly to a discriminatory reason” for the employer’s adverse action.
Mullin v. Temco Mach., Inc., 732 F.3d 772, 777 (7th Cir. 2013) (quotation omitted).

20

Although there is no question that Bagwe’s termination is an adverse action
sufficient to support a discrimination claim, the parties disagree over whether the
defendants’ decision to place her on a PIP also qualifies as an adverse action. In the
context of a discrimination claim, an adverse action must represent a “materially
adverse change,” such as “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.”
Oest, 240 F.3d at 612-13 (internal quotations omitted). A negative performance
review standing alone does not qualify. Id. at 613. Bagwe argues that the PIP
qualifies as an adverse action because, according to her, it resulted in her being
denied a raise. (R. 160, Pl.’s Resp. at 26.) But the only evidence she cites to support
this contention is the fact that merit increases are determined in part based on
something called an employee’s MAPP score. (R. 166, Defs.’ Resp. to Pl.’s Facts ¶ 9.)
She points to no evidence that her PIP played into her 2009 MAPP score or
otherwise directly impacted her merit increases. Accordingly, there is no evidence
to distinguish the PIP from any other negative performance review.

See

Langenbach v. Wal-Mart Stores, Inc., No. 14-1022, __ F.3d __, 2014 WL 3805439, at
*4 (7th Cir. Aug. 4, 2014) (stating that PIP is “not materially adverse” and citing
cases).

Although evidence regarding the circumstances surrounding and

motivations behind the PIP certainly will be taken into account as potential
evidence of discrimination leading up to Bagwe’s termination, the PIP standing
alone will not be viewed as a separate adverse employment action.

21

Turning to the question whether Bagwe’s race or national origin motivated
the defendants’ decision to fire her, Bagwe presents several lines of what she
characterizes as circumstantial evidence of discrimination. After a careful review,
the court concludes that this evidence, taken as a whole and in the light most
favorable to Bagwe, is insufficient to support an inference of unlawful
discrimination. See Sylvester v. SOS Children’s Vills. Ill., Inc., 453 F.3d 900, 903
(7th Cir. 2006) (emphasizing need to consider record as a whole at summary
judgment).
Bagwe first argues that she was paid less than similarly situated individuals
who reported to the same management team and held Operations Manager III
positions on the AT&T account. (R. 160, Pl.’s Resp. at 13-14.) She also cites as
evidence of discrimination the fact that her replacement was hired at a higher
salary than her. To qualify as circumstantial evidence of discrimination under the
direct method, Bagwe must show that the comparators she points to are “directly
comparable” to her “in all material respects . . . with other possible explanatory
variables eliminated.” See Hutt v. AbbVie Prods. LLC, No. 13-1481, __ F.3d __, 2014
WL 3033126, at *4 (7th Cir. July 7, 2014) (internal quotation marks omitted). In
other words, “the comparators must be similar enough that any differences in their
treatment cannot be attributed to other variables,” like race or national origin.
Silverman v. Bd. of Educ. of Chi., 637 F.3d 729, 742 (7th Cir. 2011). Without this
requisite similarity, any proposed comparison would be meaningless.

22

The defendants do not dispute that when the salaries of the Operations
Managers III assigned to AT&T are viewed in light of Sedgwick’s geographic cost-ofliving adjustments, Bagwe’s salary was the lowest. (R. 166, Defs.’ Resp. to Pl.’s
Facts ¶ 86.) But Bagwe’s reliance on that fact to show that her race or national
origin explains the differences between her salary and those of other people in her
position fails to pin down the similarities among the comparators with sufficient
specificity.

As the defendants point out, LeClaire testified that many variables

went into decisions about managers’ pay, including prior work experience, the
challenge posed by the assigned account, and the number of direct reports. (Id.
¶ 61.) In particular, LeClaire explained that the salary of Bagwe’s replacement was
based on his leadership skills, level of experience, and years of management
background. (Id. ¶ 88.) Bagwe has not pointed to evidence that directly contradicts
her testimony, nor has she made any attempt to show that the other individuals
who held her job title “had comparable experience, education, or qualifications.” See
Tank, __ F.3d __, 2014 WL 3360476, at *7. In fact, nowhere in her response does
she list those comparators by name (other than her replacement) or otherwise make
any attempt to demonstrate a level of similarity that would allow a reasonable jury
to conclude that race and national origin are the variables that explain the
differences in their compensation. See Bunn v. Khoury Enters., Inc., 753 F.3d 676,
685 (7th Cir. 2014) (stating that the similarly-situated “inquiry is too fact-intensive
for us to rely on conjecture alone”); Bass, 746 F.3d at 835 (“Without at least a name
to test, the district court had no choice but to grant summary judgment.”). The

23

Seventh Circuit has made clear that pointing to evidence that others with the same
job title were paid more than the plaintiff is insufficient. Tank, __ F.3d __, 2014 WL
3360476, at *7. Because that is all Bagwe does here, her proposed comparison fails
to support an inference that discrimination may have been a factor in her pay. See
id.
Next Bagwe argues that there is evidence from which a reasonable jury could
conclude that the defendants’ explanation for her termination decision is pretextual.
According to the defendants, they fired her because she exhibited poor leadership
and communication skills and engaged in unprofessional behavior, especially by
engaging in “email wars.” Evidence of pretext qualifies as circumstantial evidence
of discrimination under the direct method. Tank, __ F.3d __, 2014 WL 3360476, at
*2. In order to show that the defendants’ explanation is pretextual, Bagwe must
point to evidence from which a reasonable jury could conclude that it is a lie. See
Cung Hnin, 751 F.3d at 506. It is not enough to show that the defendants made a
mistake or exercised poor business judgment. Mullin, 732 F.3d at 778. Rather, “the
important consideration is whether the employer gave an honest explanation of its
behavior.” Id. (internal quotation omitted).
In her attempt to establish pretext Bagwe first argues that the defendants
provided shifting explanations for their decision to fire her, and that a jury could
infer from those shifts that they lied about their true motivation.

Although

“[i]nconsistent explanations by an employer can support a reasonable inference of
pretext that can defeat a motion for summary judgment,” Carlson v. CSX Transp.,

24

Inc., Nos. 13-1944 & 13-2054, __ F.3d __, 2014 WL 3361072, at *6 (7th Cir. July 10,
2014), the supposed inconsistencies Bagwe points to here amount to nothing more
than different articulations of the same rationales.

In support of her pretext

argument, Bagwe presents a chart quoting testimony from five Sedgwick employees
involved in her termination and asserts that their explanations “vary wildly.”
(R. 160, Pl.’s Resp. at 19.)

But the quoted explanations are actually quite

consistent. The employees used phrases like “not a team player,” “lack of trust in
leadership team,” “become a distraction,” and “confrontational.” (Id. at 20.) Several
of the excerpts expressly cite “communication” and “trust” issues. (Id.) That these
five individuals did not use identical language to describe the decision does not
detract from the fact that taken as a whole, their explanations all support the idea
that the decision was based on Bagwe’s perceived lack of leadership, communication
skills, and professionalism.
Similarly, Bagwe’s attempt to argue that Sedgwick’s current explanation
marks a pivot from its response to her EEOC charge also rests on distinctions with
no real differences. Sedgwick told the EEOC that “Bagwe was terminated because
of her inability to focus on business and client issues and [her] attitude toward her
supervisors, managers and co-workers had become a continuing distraction to the
business unit and was interfering with everyone’s ability to do their job and service
their clients satisfactorily.”

(R. 166, Defs.’ Resp. to Pl.’s Facts ¶ 101.)

To

demonstrate a pivot, Bagwe points to LeClaire’s testimony that she knew Bagwe’s
issues “weren’t impacting the results” for clients. (Id.) But whether specific results

25

actually suffered is a different question from whether Bagwe’s behavior made it
more difficult for her team to service their clients, as described in the EEOC
response.

LeClaire’s concession that Bagwe’s behavior had not impacted client

results simply does not suggest that the EEOC response was “cooked up after the
fact.” See Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011).
And in any event, it is not enough to show that the defendants may have been
wrong in evaluating whether Bagwe’s behavior impacted her team’s ability to
service their clients. The question with respect to pretext is whether the employer’s
explanation is true, not whether it is correct. See Mullin, 732 F.3d at 778. Nothing
in the testimony that Bagwe cites here supports her attempt to characterize the
defendants’ reasons as “shifting” in the way that would give rise to a reasonable
inference that the defendants were lying.
Bagwe next argues that a reasonable jury could see pretext in what she
describes as the defendants’ failure to follow its own policies in handling her
termination.

This argument consists in pertinent part of the following four

sentences:
Plaintiff also presents evidence of Defendants’ failure to follow its own
policies. Although the facts are disputed, Plaintiff’s termination was
handled nothing like the termination of her successor . . . . (PSOF
¶¶ 16, 89.) Numerous other policy violations or deviations abound.
(PSOF ¶ 16.) This, too, is evidence of pretext.
(R. 160, Pl.’s Resp. at 22.) Bagwe does not identify with any specificity what policies
she is referencing, how her termination was handled differently than the
termination of her replacement, or what “numerous other” deviations she is

26

referencing. Her failure to develop this argument in any meaningful way would
justify deeming it waived. See U.S. v. Thornton, 642 F.3d 599, 606 (7th Cir. 2011).
But even absent any implied waiver, she has not pointed to evidence from which a
reasonable jury could conclude that the supposed variations in the defendants’
application of Sedgwick’s policies demonstrate pretext. Nothing in either of the two
cited statements of facts references a single Sedgwick policy, let alone identifies any
variance from a policy, and it is well-established that a district court is not required
to scour the summary judgment record to identify evidence that can defeat a
summary judgment motion or to piece together a party’s factual or legal arguments
for her. See Ritchie v. Glidden Co., 242 F.3d 714, 723 (7th Cir. 2001); Kirkland v.
Kenny Constr., No. 13 CV 4115, 2014 WL 3558752, at *2 (N.D. Ill. July 18, 2014).
Absent any identifiable evidence regarding the applicable policies, no reasonable
jury could infer pretext stemming from Bagwe’s assertion that they strayed from
their policies in handling her termination.
Bagwe’s assertion that the defendants handled the termination of her
replacement differently from hers sounds more like a comparator argument than a
pretext argument, but either way, it lacks teeth. To the extent she means to show
that the defendants followed company policies in terminating her replacement but
not in terminating Bagwe, the evidence she cites states only that Street believes she
filled out a Termination Questionnaire and Checklist for her replacement (although
she could not remember whether she did), but no one filled out that checklist for
Bagwe.

(R. 166, Defs.’ Resp. to Pl.’s Facts ¶ 16.)

27

Bagwe fails to point to any

evidence that Sedgwick policy required that the people involved in a termination
decision complete the checklist. The defendants point to evidence that the checklist
was not always used in every termination case. (Id. ¶ 13; R. 163, Pl.’s Facts, Ex. 5,
Browne Dep. at 41:3-12.) Bagwe has not explained how Street’s possible completion
of a termination checklist for her replacement but not for her shows that he received
favorable treatment. In short, Bagwe simply has not identified specific evidence
from which a jury could conclude that the defendants followed required policies for
her replacement but not for Bagwe, infer discrimination from the fact that no
checklist was completed in her case, or conclude that this difference shows that her
replacement was treated more favorably in the termination process.
To the extent Bagwe intends to show that the defendants treated her
replacement more favorably than her with respect to how they handled his
leadership deficiencies leading up to his termination, nothing in the evidence she
cites would support a reasonable inference that Bagwe’s race or national origin is
behind any difference. She cites paragraph 89 from her statement of facts, which
states that Papaioannou was aware of her replacement’s leadership issues
beginning in the spring of 2012 but did not discipline or fire him until after he made
a decision that exposed Sedgwick to financial liability approximately five months
later. (R. 163, Pl.’s Facts ¶ 89.) Bagwe apparently intends for a jury to infer from
this timeline that Papaioannou showed more tolerance for her replacement’s
leadership failures than she did for Bagwe’s. But the timing of her replacement’s
termination does not support that inference. He was fired in September 2012, less

28

than a year after his performance issues surfaced. (R. 162, Pl.’s Resp. to Defs.’
Facts ¶ 104.)

The undisputed evidence shows that Warner first alerted

Papaioannou to complaints about Bagwe’s leadership style back in April 2008,
demonstrating that she was at least aware of discord on Bagwe’s team for 17
months before recommending Bagwe’s termination.

(Id. ¶ 56.)

Bagwe has not

pointed to any evidence to dispute LeClaire’s testimony that regardless of Bagwe’s
replacement’s decision exposing Sedgwick to financial liability, she would have
recommended his termination if his leadership issues had not quickly improved.
(Id. ¶ 104; R. 145, LeClaire Decl. ¶ 74.) In short, nothing in the record of her
replacement’s tenure supports an inference that the defendants showed him greater
leniency than Bagwe.
Bagwe also argues that she has evidence of what she refers to as “classic
pretext” stemming from what she views as the defendants’ current attempt to
justify the termination decision based on facts that they did not know when the
decision was made. (R. 160, Pl.’s Resp. at 23.) Specifically, she asserts that a jury
could infer that the decision to fire her had been made by August 3, 2009, because
that is the date that Jackson and Papaioannou exchanged emails regarding
scheduling a meeting with Bagwe, but argues that Papaioannou explains the
decision to fire her based partly on information she received from an employee
named Rick Hernandez on August 4.

Although Bagwe’s brief fails to cite any

evidence in support of the argument, Plaintiff’s exhibit 56 shows that the email
exchange about meeting Bagwe did occur on August 3, 2009. (R. 163, Pl.’s Facts,

29

Ex. 56.) The defendants do not dispute that the purpose of the meeting referenced
in that email was to discuss Bagwe’s termination. (R. 166, Defs.’ Resp. to Pl.’s Facts
¶ 82.) But regardless of the timing, Papaioannou does not say in her declaration
that she relied on Hernandez’s August 4 feedback to inform her termination
recommendation.

(R. 145, Defs.’ Ex. G, Papaioannou Decl. ¶ 26.)

Instead, she

states that her recommendation was based on her conclusion that Bagwe’s
leadership and communication issues had not resolved in the months following the
PIP, a conclusion informed in part by the July 2009 incident involving Warner. (Id.
¶¶ 28-29.)
Moreover, because the information Papaioannou received from Hernandez
simply echoed concerns that French, Warner, and others raised earlier about
Bagwe’s combative style, no reasonable jury could infer that Papaioannou cited his
feedback to fabricate new reasons to justify a decision after the fact. See Schuster v.
Lucent Techs., Inc., 327 F.3d 569, 579 (7th Cir. 2003) (noting that “an additional,
not necessarily inconsistent reason for the employment decision, rather than an
abrupt change in explanation” does not show pretext). In that sense, the facts here
present a far cry from the situation in Futrell v. J.I. Case, 38 F.3d 342 (7th Cir.
1994), which Bagwe points to in support of her “classic pretext” argument.

There,

the court found evidence that a manager had created a catalogue of the plaintiff’s
shortcomings after he was fired and then “tried to make it seem as if he had kept
the notes contemporaneously,” could cast doubt on the validity of the employer’s
explanations. Id. at 349. Here, by contrast, no reasonable jury could infer that by

30

referencing her conversation with Hernandez in her declaration Papaioannou was
“backfiling” the evidence in an attempt to justify her recommendation after the fact.
See id. Because Bagwe points to no evidence that Papaioannou relied in particular
on Hernandez’s information to inform her recommendation, and even if she did,
that evidence is consistent with the explanation the defendants have provided from
the start, Bagwe has not shown that a reasonable jury could conclude that
Papaioannou lied about Bagwe’s leadership and communication deficits to try to
hide a discriminatory motive. See Schuster, 327 F.3d at 579.
Finally, Bagwe argues that a reasonable jury could infer that her race and
national origin were motivating factors in the termination decision from LeClaire’s
comment that she “does not like” her Indian sister-in-law and from the (disputed)
claim that Papaioannou called her an “Indian bitch” on the day she was fired.
(R. 160, Pl.’s Resp. at 17.) “A remark can raise an inference of discrimination when
it was: (1) made by the decision-maker, (2) around the time of the decision, and (3)
in reference to the adverse employment action.”
3360476, at *4 (internal quotation omitted).

Tank, __ F.3d __, 2014 WL

Those qualifications are required

because although bigotry has no place in any work environment, it is only
actionable if there is a “real link between the bigotry and the adverse employment
action.”

Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001).

Accordingly, derogatory remarks are only sufficient to create a triable issue of
material fact regarding discrimination where they are contemporaneous with the

31

termination or causally connected to the termination decision process. Oest, 240
F.3d at 611.
LeClaire’s statement regarding her sister-in-law falls far short of the criteria
that can elevate an otherwise stray comment into the realm of circumstantial
evidence of discriminatory intent. According to Bagwe, when she asked LeClaire
how her sister-in-law was doing, LeClaire responded, “which one, the Indian?” and
then said that she did not like her sister-in-law. (R. 162, Pl.’s Resp. to Defs.’ Facts
¶ 72.) LeClaire said this as the two were walking toward a parking lot after a lunch
at Navy Pier, outside any conversation regarding Bagwe’s job or any work decision.
Context matters, and alleged discriminatory remarks that happen in a casual
setting outside discussions regarding the dismissal decision do not support an
inference of discrimination. Oest, 240 F.3d at 611. Even if LeClaire had made the
comment in the context of an employment discussion, her statement is too
ambiguous to give rise to a reasonable inference of discriminatory intent. See Tank,
__ F.3d __, 2014 WL 3360476, at *4; Hutt, __ F.3d __, 2014 WL 3033126, at *4-*5
(noting that comments reflecting “problematic hostility” are insufficient to establish
discrimination).
Bagwe’s claim that Papaioannou muttered “Indian bitch” as Bagwe left her
office on the day of her termination is more troubling. Papaioannou denies that she
said any such thing, but of course at the summary judgment phase, the court
assumes the truth of Bagwe’s account of their exchange. See Arnett v. Webster, 658
F.3d 742, 749 (7th Cir. 2011). Determining whether this comment is sufficient to

32

suggest that a discriminatory motive underlies Bagwe’s termination is a close call.
On the one hand, this offensive comment allegedly was made by a decision-maker
just before Bagwe learned that she was being terminated.

On the other hand,

Bagwe admits that Papaioannou made the comment at the tail end of a casual
conversation in which she stopped by Papaioannou’s office just to say hello, rather
than in the context of any employment discussion. (R. 162, Pl.’s Resp. to Defs.’
Facts ¶ 100.) According to Bagwe, she heard Papaioannou mutter “Indian bitch”
after she had turned her back and was walking away. (Id.) There is no evidence
that Papaioannou referenced her termination during the conversation. See Gorence,
242 F.3d at 762 (noting that stray remarks may show discrimination where made
around the time of and in reference to complained-of action). And according to
Bagwe, by the time the conversation took place, the termination decision was
already days old. (R. 166, Defs.’ Resp. to Pl.’s Facts ¶ 82); see Overly v. Keybank
Nat’l Ass’n, 662 F.3d 856, 865 (7th Cir. 2011) (finding that supervisor calling
plaintiff a “bitch” after she resigned insufficient “to be regarded by a reasonable jury
as a confession that any previous, adverse conduct was taken for a discriminatory
purpose”). Although Papaioannou’s comment could give rise to an inference of bias,
nothing about the context surrounding the comment suggests that her bias played
into the pre-existing termination decision. Nor has Bagwe pointed to any additional
evidence suggesting Papaioannou either explicitly or implicitly relied on any bias
related to race or national origin in recommending Bagwe’s termination. See Dass
v. Chi. Bd. of Educ., 675 F.3d 1060, 1072 (7th Cir. 2012) (holding that the accused

33

official’s remark that the plaintiff “‘should look for another job on the North Side
where most of the Indians go’” not enough to create a genuine factual issue as to
whether the official was motivated by national origin discrimination).

In the

absence of some link between Papaioannou’s comment and the termination decision,
no reasonable jury could reasonably infer that Papaioannou’s bias informed the
termination decision. See Adams, 324 F.3d at 939 (noting that bigotry is actionable
only if linked to the adverse employment action).
At the end of the day, in the absence of other evidence linking the
termination decision to Bagwe’s race or national origin, Papaioannou’s comment
standing

alone

discrimination.

is

not

enough

to

constitute

circumstantial

evidence

of

See Perez v. Thorntons, Inc., 731 F.3d 699, 709 (7th Cir. 2013)

(“Standing alone, biased comments do not establish discriminatory motive unless
they were [made] by the decision maker and can be connected to the decision.”).
Rather than presenting a convincing mosaic of circumstantial evidence, Bagwe has
presented “only one ‘bit’ or ‘piece’.” See Hobgood v. Ill. Gaming Bd., 731 F.3d 635,
644 (7th Cir. 2013). Because none of the other evidence Bagwe has marshalled
supports an inference of discriminatory motive, Papaioannou’s singular comment is
not enough to point to the conclusion that the defendants were unlawfully
motivated when they decided to fire her. See Langenbach, __ F.3d __, 2014 WL
3805439, at *4. Accordingly, she is not entitled to avoid summary judgment on her
race and national origin discrimination claims under the direct method.

34

2.

Indirect Method

To establish her discrimination claims under the indirect method of proof,
Bagwe has the initial burden of making out a prima facie case that: (1) she is a
member of a protected class; (2) she performed according to the defendants’
reasonable expectations; (3) she nonetheless suffered an adverse employment
action; and (4) similarly situated non-Asian American or non-Indian American
employees were treated more favorably. See Morgan, 724 F.3d at 996. The first
and third prongs are not in dispute here. And in cases like this, where the people
judging a plaintiff’s performance are the ones accused of discrimination, the second
prong drops out of the analysis. See Oest, 240 F.3d at 612 n.3. Accordingly, the
court’s analysis begins with the fourth prong.
To show that others outside her class were treated better than her Bagwe
points to her replacement.

Her one-sentence argument is that the defendants

treated her replacement more favorably than her because despite similar leadership
issues, he was not fired until he struggled to learn how to handle long-term
disability claims and engaged in conduct that cost Sedgwick money. (R. 160, Pl.’s
Resp. at 23.) But the similarly-situated analysis is the same under the indirect
method as it is under the direct method, see Langenbach, __ F.3d __, 2014 WL
3805439, at * 7, and for the same reasons explained above, Bagwe has failed to
show that the events leading up to the replacement’s termination support an
inference that he was treated more favorably than she was because of her race or
national origin.

Neither comparing the reasons for their terminations nor the

35

length of time it took for the defendants to fire the replacement supports an
inference that the replacement received greater leniency for similar failures.
Even if Bagwe had met her burden with respect to the prima facie case,
because the defendants articulated legitimate, nondiscriminatory reasons for firing
her, the burden shifts back to Bagwe to show that the reason is pretextual. See
Morgan, 724 F.3d at 996. But Bagwe relies here on the same pretext evidence that
the court found lacking under the direct method. As explained above, that evidence
is insufficient to show that the defendants lied in citing Bagwe’s leadership,
communication, and professionalism deficits as the reasons behind their decision to
fire her. Because the evidence Bagwe has marshalled falls short under both the
direct and indirect methods of proof, the defendants are entitled to summary
judgment on her race and national origin discrimination claim.
C.

Bagwe’s Claims of Retaliation
Bagwe also claims that the defendants retaliated against her for complaining

about workplace discrimination by placing her on the PIP, firing her, and by
describing her as “a problem” to a potential employer.

Title VII prohibits an

employer from retaliating against an employee for engaging in protected activity,
such as complaining about discrimination in the workplace. 42 U.S.C. § 2000e-3;
Cung Hnin, 751 F.3d at 507. Unlike the status-based discrimination claims, which
require a showing that discriminatory intent was a motivating factor in an
employer’s decision, retaliation claims require the application of a more demanding
but-for causation standard. See Univ. of Tex. Sw. Med. Ctr., 133 S.Ct. at 2528.

36

1.

Direct Method

For Bagwe to establish her retaliation claim under the direct method, she
must point to evidence from which a reasonable jury could conclude that she
engaged in statutorily protected activity, suffered an adverse action, and that the
two are causally connected. See Cung Hnin, 751 F.3d at 508. For purposes of
retaliation, an adverse action is anything that would dissuade a reasonable
employee from complaining about discrimination. Burlington N. Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006). In this context an action can be materially adverse
regardless of whether it affects the terms or conditions of the plaintiff’s
employment. Cung Hnin, 751 F.3d at 508 n.2. The adverse actions Bagwe points to
in support of her retaliation claim include her PIP, her termination, and what she
describes as the defendants’ post-termination interference with her attempts to find
new employment. But even in the retaliation context, the Seventh Circuit has held
that a PIP does not qualify as a materially adverse action. See Langenbach, __ F.3d
__, 2014 WL 3805439, at * 4; Cullom v. Brown, 209 F.3d 1035, 1041 (7th Cir. 2000).
Although a negative reference or post-employment blacklisting can qualify as
materially adverse acts of retaliation, Robinson v. Shell Oil Co., 519 U.S. 337, 346
(1997) (holding that acts of retaliation against former employees are actionable);
Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 888 (7th Cir. 1996), the defendants
argue that the only evidence Bagwe has presented of actionable post-termination
conduct constitutes inadmissible hearsay. The court agrees. Bagwe’s argument
rests solely on her assertion that an unidentified person at Sedgwick interfered with

37

her attempt to gain employment at a company called Matrix Absence Management.
(R. 160, Pl.’s Resp. at 27.) In support of that assertion, she cites the declaration of
Matrix employee Kristi Pease, who states that in late 2009 or early 2010 she
interviewed Bagwe for a senior management position. (R. 163, Pl.’s Facts, Ex. 59,
Pease Decl. ¶¶ 5-6.) According to Pease, after the interview she told Matrix’s CEO
that she wanted to hire Bagwe, and that Bagwe had worked previously at Sedgwick.
(Id. ¶¶ 4, 7.) Before Pease could schedule Bagwe for an onsite interview the CEO
emailed Pease and told her that he had just spoken to someone from Sedgwick and
based on that conversation he asked Pease not to hire Bagwe. (Id. ¶ 8.) According
to the declaration, the CEO told Pease that the Sedgwick person had told him that
Bagwe was a good performer who had become “a problem” after she was promoted.
(Id.)
Pease’s statement is inadmissible both because it lacks foundation, in that it
does not identify the source of the negative reference, and because it constitutes
hearsay. Bagwe argues that Pease’s recounting of what her CEO told her about his
conversation with an unidentified Sedgwick employee is not hearsay because it is
offered not for the truth of the matter asserted—that Bagwe was “a problem”—but
rather for its effect on the listener, the CEO. (R. 160, Pl.’s Resp. at 27 n.11.) But
the statement clearly is submitted for its truth: that some unidentified Sedgwick
employee gave the CEO a negative reference for Bagwe. See Malin, __ F.3d __, 2014
WL 3896175, at *1 (noting that supervisor’s report that his boss instructed him to
stop plaintiff from lodging harassment complaint “fits squarely” within hearsay

38

definition).

As an out-of-court statement submitted for the truth of the matter

asserted, what the CEO told Pease about what someone else told him is hearsay.
Fed. R. Evid. 801(c). “Where a plaintiff attempts to introduce the testimony of an
individual who did not personally witness the alleged defamatory statement but
was later told by another that the statement was made, such testimony is rejected
as hearsay.” Schindler v. Seiler, 474 F.3d 1008, 1011 (7th Cir. 2007). That is
exactly what Bagwe attempts to do here.
Bagwe argues alternatively that the statement fits into the hearsay exception
for “present sense impressions.” See Fed. R. Evid. 803(1). “The theory underlying
the present sense impression exception ‘is that substantial contemporaneity of
event

and

statement

misrepresentation.’”

negate

the

likelihood

of

deliberate

or

conscious

United States v. Boyce, 742 F.3d 792, 796 (7th Cir. 2014)

(quoting Fed. R. Evid. 803 advisory committee’s note).

Rule 803(1) covers a

statement “describing or explaining an event or condition, made while or
immediately after the declarant perceived it.” To qualify under this exception, the
statement must meet three criteria: (1) it must describe the event “without
calculated narration”; (2) the speaker must have personally perceived the described
event; and (3) the statement must have been made while the event was unfolding or
immediately after. Schindler, 474 F.3d at 1011. Bagwe argues that the CEO’s
statement meets these criteria because he wrote in his email to Pease that he had
“just” spoken with the Sedgwick employee when he emailed her to convey that he
had been told Bagwe was a problem.

But even if that were enough to show

39

immediacy, the CEO’s email was a calculated narration drafted for a specific
reason, to prevent Pease from hiring Bagwe. Accordingly, it does not qualify under
the present sense impression exception to the hearsay rule. See id. at 1011-12.
Because it is well-established that a plaintiff cannot rely on inadmissible hearsay to
defeat a motion for summary judgment, see MMG Fin. Corp. v. Midwest
Amusements Park, LLC, 630 F.3d 651, 656 (7th Cir. 2011), Bagwe has not
demonstrated that a genuine issue of fact exists with respect to whether the
defendants engaged in post-termination retaliation. Accordingly, the question for
the court is narrowed to whether she was fired in retaliation for engaging in
protected activity.
In her response brief, Bagwe cites two examples of what she views as direct
evidence of retaliation. First, she points to the language in the PIP which she
characterizes as ascribing a “lack of judgment” to her accusation that Coyle made
discriminatory comments about other colleagues. (R. 160, Pl.’s Resp. at 15.) But
her argument rests on a mischaracterization of the PIP, which ascribes a lack of
judgment not to Bagwe’s decision to complain about Coyle’s behavior, but rather to
her failure to bring it up immediately or to provide relevant details.

Specifically,

Papaioannou relayed French’s disappointment that Bagwe complained about
Coyle’s behavior only months or a year after it had happened, and even then,
without providing any specifics about what Coyle said or to whom.2 (R. 145, Defs.’

It should be noted that despite highlighting in her fact statements that French
sent Coyle an email about Bagwe saying the “gloves are off,” in her brief Bagwe
does not point to that as circumstantial evidence of retaliation. Nor does Bagwe
2

40

Facts, Ex. O, Bagwe Dep. Ex. 17 at Sedgwick 1226.) She also criticized Bagwe for
bringing up another instance in which Coyle made a derogatory comment about a
colleague’s sexuality over a year after it happened, noting that “it was your role and
responsibility to address the issues at that time and not a year later.”
Sedgwick 1227.)
complaining

(Id. at

In other words, on its face the PIP criticizes Bagwe for not

about

discrimination

in

a

timely

and

professional

manner.

Accordingly, no reasonable jury could conclude that this aspect of the PIP
constitutes direct evidence of retaliation.
The second fact Bagwe characterizes as direct evidence of retaliation is
Browne’s testimony that the Colleague Resources investigation into Bagwe’s
complaints included an investigation of Bagwe’s office work relationships, the
results of which led Browne to approve her termination. (R. 160, Pl.’s Resp. at 1516.)

Bagwe asserts without explanation that this testimony “directly ties her

protected activities to the decisions at issue.” (Id. at 16.) It is unclear why Bagwe
considers an exploration of office work relationships inconsistent with or an
“expansion” of an investigation into her allegations that she was discriminated
against and harassed at work. (R. 166, Defs.’ Resp. to Pl.’s Facts ¶ 48.) It also is
unclear how any employer could evaluate the merits of such charges without
understanding the relationship dynamics involved. Bagwe’s theory appears to be
that because colleagues interviewed in the course of an investigation into her

argue either that French was a decision-maker with respect to her termination or
that he had a retaliatory motive that could be imputed to Papaioannou or LeClaire
under a cat’s paw theory. See Nichols, 755 F.3d at 600.
41

discrimination complaints said things that reflected negatively on her leadership
skills and collegiality, and because Browne did not ignore that information in
deciding to approve LeClaire and Papaioannou’s termination recommendation, her
termination is causally connected to her protected activity. (Id. ¶ 79.) But she cites
no legal support suggesting that employers must compartmentalize information
about an employee’s performance issues just because they emerge in the course of a
discrimination investigation. If anything, the fact that Browne relied on colleagues’
complaints about their work relationships with Bagwe in terminating her supports
the defendants’ position that her leadership and communication problems were at
the heart of the termination decision. Accordingly, the court disagrees with Bagwe’s
assertion that the investigation’s exploration of her office work relationships
constitutes direct evidence of retaliation.
Turning to Bagwe’s circumstantial evidence, because she did not address her
retaliation and discrimination claims separately, the court is again left to sift
through her list of evidence to determine which evidence she views as
demonstrating a causal connection between her discrimination complaints and her
termination. That evidence includes the same pretext evidence that she submitted
in support of her discrimination claim.

For the same reasons that evidence is

insufficient to show the defendants were trying to hide a discriminatory motive, it
fails to support the inference that they had a retaliatory motive.
The only additional circumstantial evidence Bagwe cites in her attempt to
demonstrate retaliation relates to her argument that the timing of Bagwe’s PIP and

42

termination are suspicious. Bagwe first asserts that she told Simpson in Colleague
Resources that she was being discriminated against sometime in 2008, and that a
reasonable jury could infer that Simpson would have informed Papaioannou and
LeClaire of those allegations at the time they were made. (R. 160, Pl.’s Resp. at 14.)
She cites no evidence that Simpson actually conveyed that information to
Papaioannou and LeClaire at the time. Her speculation as to what might have
happened is not sufficient to create a genuine issue of fact as to the timing of her
supervisors’ awareness that she had engaged in protected activity. See Nichols, 755
F.3d at 599.
There is no dispute, however, that Bagwe brought up discriminatory
comments that Coyle had made about other employees in a conversation with her
and French in January 2009, and that French had alerted LeClaire and
Papaioannou to those complaints by February 25, 2009. LeClaire and Papaioannou
prepared the PIP just over two weeks later, on March 12, 2009. Similarly, Bagwe
was fired nine days after she requested in a follow-up email that Simpson provide a
more specific response to her complaints about her pay. (R. 163, Pl.’s Facts, Ex. 44.)
The timing is indeed close.

But it is not suspicious.

Bagwe argues that the

defendants decided to fire her on August 3, 2009. Accordingly, her August 4 followup email could not have been a factor in the termination decision. As for the PIP,
LeClaire and Papaioannou prepared it partly in response to the information French
provided about Bagwe’s negative interactions with colleagues. See Tank, __ F.3d __,
2014 WL 3360476, at *3 (timing of investigation into complaints about plaintiff

43

launched two days after plaintiff complained of discrimination not suspicious). But
even if the timing raised a suspicion of causation, that alone is not a sturdy enough
hook from which to hang Bagwe’s entire retaliation claim. See Nichols, 755 F.3d at
605.

That is because “[s]uspicious timing alone is rarely sufficient to create a

triable issue. . . . It is clear that mere temporal proximity is not enough to establish
a genuine issue of material fact.”

Hutt, __ F.3d __, 2014 WL 3033126, at *5

(internal quotation and citation omitted). Even viewed as a whole, the evidence
presented in response to the defendants’ motion is insufficient to survive summary
judgment on her retaliation claim under the direct method.
2.

Indirect Method

To establish a retaliation claim under the indirect method, a plaintiff must
make out a similar prima facie case as exists for a discrimination claim, although
the first prong is tweaked to ensure that she engaged in statutorily protected
activity and the fourth requires a comparison to employees who did not engage in
such protected activities and were treated more favorably. See Hutt, __ F.3d __,
2014 WL 3033126, at *6. Bagwe has made no independent argument as to why her
retaliation claim should survive under the indirect method. Because the evidence
she seems to rely on to show she was treated less favorably than similarly situated
employees who did not engage in protected activity is the same that the court found
lacking with respect to her status-based discrimination claims, she has failed to
make out a prima facie case of retaliation as well. The same is true for her evidence
of pretext. In short, Bagwe has neither argued that her retaliation claim should

44

survive under this method of proof for reasons other than those that the court
rejected with respect to her discrimination claim, nor pointed to new evidence that
would meet her burden of proof with respect to the retaliation claim. Accordingly,
she is not entitled to avoid summary judgment on her retaliation claim.
Conclusion
For the foregoing reasons, the defendants’ motion for summary judgment is
granted.

Bagwe’s defamation claim is dismissed with prejudice in light of her

decision to withdraw prosecution of that claim.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

45