Day v. Inland Management Corporation et al

Filing 153

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 9/18/2013:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEPHANIE DAY,
Plaintiff,
v.
INLAND SBA MANAGEMENT
CORPORATION, an Illinois corporation, and
SOMERCOR 504, INC., an Illinois corporation,
Defendants.

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Case No. 11-cv-6201

Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff, Stephanie Day, (“Day”) filed a six-count complaint against defendants Inland
SBA Management Corporation (“Inland”) and SomerCor 504, Inc. (“SomerCor”) alleging
violations of the Civil Rights Act of 1871, 42 U.S.C. § 1981, Title VII, 42 U.S.C. §
2000(e)(2)(a)(1), the Illinois Whistle Blower Act, 750 ILCS 174/15, and a claim for breach of
contract. Defendants Inland and SomerCor move for summary judgment on all Day’s claims.
For the following reasons, the defendants’ motions are granted and Day’s complaint is dismissed
in its entirety.
Background
SomerCor is a not-for-profit corporation, licensed by the federal government to place and
service loans through the federally funded Small Business Administration program. (Dkt. 122 at
¶ 2). SomerCor contracted with Inland to provide personnel and human resources services.
(Dkt. 135 at ¶ 6). From October 2008 through January 2011, Day, an African-American woman,
was employed as the Senior Vice President of the Servicing Department of SomerCor. (Dkt. 135
at ¶ 1). Day reported directly to the president of Inland, Mickey Maslic (“Maslic”), and the
Executive Vice President of SomerCor, David Frank (“Frank”).
As part of her employment contract, Day was to get a second year bonus. Day
anticipated and estimated that her bonus would be $50,000; however, the parties’ agreement
never specified the exact amount of her bonus. (Dkt. 123 at ¶ 22). The parties’ agreement,
memorialized in an email exchange, merely provides that Day’s second year bonus was to be
calculated from whatever remained from the department’s budget after her salary, and the salary
of anyone else in her department was deducted. (Dkt. 122 ¶ 14). Neither Day nor the defendants
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provide any evidence as to the actual numbers used to calculate Day’s bonus (for example, what
her second year salary was or what the salaries of others in the department totaled).
In October 2009, Day received her first performance evaluation from Maslic and Frank.
The review stated that she needed to ensure that customers were treated with the best available
options and that her supervisors believed that there were better ways to approach problem loans.
(Dkt. 135 at ¶ 23). Although Day states that she did not receive any written discipline related to
customer complaints until November 12, 2010, (Dkt. 122 at ¶ 24, 36), it can be inferred from her
performance review that customer service needed adjustments. Nor does it necessarily follow
that no such customer complaints were made just because Day was not informed of such
complaints until November 2010. Maslic and Frank testified that numerous customer complaints
were made concerning Day in late 2009. (Maslic Dep. 99-101, Frank Dep. 86-94). Specifically,
Frank testified to complaints he received by John Hunt, a community banker from Rolling
Meadows, who complained that Day was not helpful and that she refused to offer any guidance
regarding his loan. (Frank Dep. 86:7-87:12). Additionally, Frank testified to receiving
complaints from Ted Strack who complained that he had become exasperated with dealing with
Day and would rather pay off his loans directly. (Fran Dep. 93:13-94:11). Day states that when
such customer complaints were eventually brought to her attention she did everything in her
power to address the complaints with the client and her team. (Dkt. 122 at 37).
Day met with Maslic and Frank to discuss her second year performance evaluation in
October 2010. Following that meeting Maslic and Frank gave Day her second written
performance evaluation in which they noted that improvement was needed with regards to Day’s
customer service and client relationships. The performance evaluation listed that Day needed to
improve in areas such as inclusiveness (promoting cooperation and understanding the
perspectives of others) and communication (connecting with peers and customers). (Dkt. 135 at
¶ 38). On November 30, 2010, Maslic and Frank gave Day a written warning that refusals to
service customers’ needs may lead to further discipline. (Dkt. 135 at ¶ 46). On December 13,
2010 Day filed an EEOC Charge against the defendants alleging race and sex discrimination.
Day states that she had previously verbally complained of racial discrimination on October 14,
2010. (Dkt. 134 at 6). On January 27, 2011 Maslic and Frank terminated Day’s employment.
(Dkt. 135 at ¶ 62).

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The defendants contend that Day was terminated because of customer complaints and the
rude manner in which she communicated with clients. Day argues that she was terminated for
refusing to approve a loan that she believed was improper and because of her race and sex.
Legal Standard
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56
(a). To determine whether any genuine issue of fact exists, the court must construe all facts in a
light most favorable to the non-moving party and draw all reasonable inferences in that party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986). However, where a claim or defense is factually unsupported, it should be disposed of on
summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986).
Discussion
1. Counts I-III: Race & Gender Discrimination
Defendants Inland and SomerCor move for summary judgment on Day’s racial and sex
discrimination claims (Counts I-III). Inland and SomerCor argue that Day fails to provide any
facts in support of her discrimination claims outside of her own conclusory, unsupported
allegations. The defendants contend that Day was terminated because she failed to meet her
employer’s legitimate employment expectations. Day argues that she is able to establish her
claims under both the direct and indirect methods of proof set out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Day alleges that Inland discriminated against her based on race and gender by subjecting
her to more stringent terms and conditions of employment, excluding her from management
meetings, denying her a promised bonus, and speaking to her in an offensive and racially biased
manner in violation of Title VII and 42 U.S.C. § 1981. (Compl. at 13). Day may establish
discrimination under Title VII and 42 U.S.C. § 1981 by either the direct or indirect method.
Silverman v. Board of Educ. of the City of Chic., 637 F.3d 729, 733 (7th Cir. 2011). Under the
direct method, the court considers direct and circumstantial evidence of discrimination. Rudin v.
Lincoln Land Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2005). Direct evidence is rare because it
“essentially requires an admission by the decision-maker that his actions were based on the
prohibited animus.” Hossark v. Floor Covering Ass'n of Joliet, Inc., 492 F.3d 853, 861 (7th Cir.
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2007). Accordingly, most cases are usually proven by circumstantial evidence. Circumstantial
evidence need not directly demonstrate discriminatory intent, but allows a jury to infer
discrimination by the decision maker for suspicious words or action. Id. at 862.
Under the direct approach, Day has failed to proffer sufficient evidence to support her
contention that the defendants discriminated against her because of her race and gender. In
support of her discrimination claims, Day first relies on emails exchanged between her
supervisors, Maslic and Frank, in which they expressed their dislike of Day’s personality, listing
her as one of the “Top 5 Most Annoying SomerCor Personalities.” These email exchanges also
contained statements about “intentional digs” towards Day. While it is unclear the content of
these “digs” or what, if any, statements were made to Day directly, Day merely presents
circumstantial evidence supporting the fact that she was disliked by her supervisors or peers.
However, “all dislike is not based on race.” Shackelford v. Roadway Express, No. 02 C 1167,
2003 U.S. Dist. LEXIS 2091,a t *15 (N.D. Ill. Feb. 11, 2003) (citing Pilditch v. Board of Educ.
of City of Chicago, 3 F.3d 1113, 1119 (7th Cir. 1993)). Day presents no evidence that she was
treated differently because of her race or sex, but merely proffers evidence that she did not get
along well with her supervisors.
Day also references a diversity project she completed for one of her management classes
as circumstantial evidence of discrimination. Day contends that Frank indicated in his interview
for her project that he believed in white male supremacy. (Pl. Rule 56 ¶ 52). Upon review of
Day’s report, there is nothing in the report which supports Day’s contention. (Dkt. 123, Ex. Q).
For her report, Day questioned employees regarding their perceptions of how diverse SomerCor
was, their beliefs about white male privilege in the company and society as whole, perceived
deficiencies in SomerCor’s diversity efforts, and suggested improvements that could be made to
promote more diversity. (Dkt. 123, Ex. Q). Outside of Day’s deposition testimony in which she
claims that Frank professed a belief in white male supremacy, there is no support in the record
for Day’s contention. Day similarly relies on her personal belief that she was hired to terminate
her predecessor, Crystal Howard, as evidence that the defendants had a history of terminating
employees because of race and gender bias. Again, Day’s claim that Howard was terminated for
discriminatory reasons is unsupported by the record outside of Day’s own conclusory remarks in
her deposition. These “conclusory allegations . . . without support in the record, do not create a
triable issue of fact.” Abuelyaman v. Ill. State Univ., 667 F.3d 800, 812 (7th Cir. 2011).
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Furthermore, it strains credulity that Maslic and Frank, would hire Day, a member of the group
they were alleged to discriminate against, in order to perpetuate clandestine discrimination
against Howard, another African-American woman. It also defies logic that Maslic and Frank
would then terminate Day themselves for the same discriminatory reasons they hired Day to
terminate Howard without again attempting to cover up their discriminatory intent.
Additionally, Day fails to provide any evidence in support of her allegations that she was
subjected to more stringent terms and conditions of employment, excluded from management
meetings, denied a promised bonus, or spoken to in an offensive and racially biased manner.
Day references defendant SomerCor’s Rule 56 Statement ¶ 87 which merely repeats Day’s
allegation that she was excluded from management, budget, and strategy meetings, and states
that when Day was asked to attend a particular budget meeting she declined. (Dkt. 90, at ¶87).
In support of her contention that the defendants made inappropriate comments about her race and
gender Day cites to her allegation that Frank believed in white supremacy, the email exchanges
between Maslic and Frank, and a letter by Frank to a lawyer in which he stated that her claims
were “off the wall, ludicrous, [and] absurd BS.” None of the evidence cited by Day supports her
contentions of race and gender discrimination. At most these references support the fact that
Day may have been disliked and disrespected by her supervisors, but do not support an inference
of discriminatory intent.
Day also argues that she states a claim under the indirect method of proof. Under the
indirect method of proof, Day must show that (1) she is a member of a protected class; (2) she
was meeting Inland and SomerCor’s legitimate expectations; (3) she suffered an adverse
employment action; and (4) similarly situated employees outside of her protected class were
treated more favorably. Naficy v. Ill. Dep’t. of Human Servs., 697 F.3d 504, 511 (7th Cir. 2012).
If Day establishes a prima facie case, the defendants must present evidence showing a legitimate,
nondiscriminatory reason for the employment action. Id. Day must then present evidence
showing that the defendants’ stated reasons are pretextual. Id. at 511-12.
First, Day fails to make a prima facie case of discrimination because she fails to
demonstrate that similarly situated employees outside of her protected class were treated more
favorably. In order to show that an employee was similarly situated, Day must demonstrate that
he or she “(1) dealt with the same supervisor, (2) [was] subject to the same standards, and (3)
engaged in similar conduct without such differentiating or mitigating circumstances as would
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distinguish [his or her] conduct or the employer’s treatment of [him or her].” Carter v.
Thompson Hotels, 2013 U.S. Dist. LEXIS 63305 (N.D. Ill. May 3, 2013).
Here, Day identifies a Caucasian female, Debra Morack, who was originally assigned to a
file that was eventually transferred to Day. Day argues that she was terminated because of her
denial of a loan on that file, but that Morack was not terminated even though she made the same
recommendation not to approve the loan. Day proffers no evidence demonstrating that Morack
received client complaints or was considered rude or terse in her communications with clients.
When analyzing whether an individual is similarly situated with a plaintiff, courts look to
whether co-workers “engaged in comparable rule or policy violations’ and received more lenient
discipline.” Coleman v. Donahoe, 667 F.3d 835, 850 (7th Cir. Ill. 2012) (internal quotation
marks omitted). “[T]he critical question is whether [the employees] have engaged in conduct of
comparable seriousness.” Id. at 851 (internal quotation marks omitted). Day proffers no
evidence to suggest that there were non-African-American female employees who were not
terminated despite receiving customer complaints.
Furthermore, even if Day could make out a prima facie case of discrimination, she cannot
overcome her additional burden of proving that the defendant’s reason for the termination is
pretextual, or, in other words, a “deliberate falsehood.” See Malone v. Am. Friends Serv. Comm.,
No. 06-2736, 213 F. App’x 490, 494 (7th Cir. 2007). Day argues that because she was not
notified of customer complaints until late 2010, such complaints were a pretext for her
termination. Day does not deny that customer complaints may have existed prior to her being
informed of them. The issue when determining pretext is whether the defendant’s proffered nondiscriminatory reason for termination is the actual basis of the employer’s action. See id.
Because there is no evidence that customer complaints were not the true ground of Day’s
termination, Day’s pretext argument would fail.
It is important to note that the Seventh Circuit has held, “. . . when an employee is hired
and fired by the same decision-maker in a relatively short time span, a presumption, or inference,
of nondiscrimination arises.” See Phelan v. City of Chicago, 226 F. Supp. 2d 914, 929 (N.D. Ill.
2002) (citing Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 399 (7th Cir. 1997)). In
Chiaramonte, the Seventh Circuit reasoned further that “[i]t is highly doubtful that a person who
hires an employee in the protected age group . . . would fire that same employee . . . as a result of
a sudden aversion to older people.” Chiaramonte, 129 F.3d at 399. Similarly, here, it is highly
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doubtful that Maslic and Frank, who according to Day had an aversion to African-American
women, would choose to hire Day, a member of the very group Maslic and Frank allegedly had
an aversion towards and discriminated against. Accordingly, Day fails to make out a prima facie
case of discrimination under both the direct and indirect methods of proof and fails to proffer
evidence that the defendants’ reasons for terminating her employment were pretextual. Counts IIII are dismissed.
2. Count IV: Retaliation
Similarly, Inland argues that Day fails to establish retaliation using either the direct or
indirect methods of proof because she fails to demonstrate a causal connection between her filing
of an administrative complaint and her termination. Day claims that the defendants retaliated
against her in violation Title VII by terminating her and refusing to give her a bonus after she
internally complained on October 14, 2010 and filed a complaint with the EEOC on December 8,
2010. A plaintiff suing for retaliation can proceed using either the direct or indirect method of
proof. Roundtree v. Instrument & Valve Servs. Co., No. 11 C 7580, 2013 U.S. Dist. LEXIS
129094, at *7 (N.D. Ill. Sept. 10, 2013). In order to establish a Title VII retaliation claim under
the direct method a plaintiff must offer evidence that (1) she engaged in a protected activity; (2)
she was subject to an adverse employment action; and (3) there was a causal link between the
protected activity and the employment action. Id. The Supreme Court has held that Title VII
retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged
employment action. See University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct.
2517, 186 L. Ed. 2d 503 (June 24, 2013).
Day’s retaliation claim fails because she cannot establish that her filing an EEOC charge
was the but-for cause of her termination. The record is void of any direct evidence of causation.
Additionally, Day cannot survive summary judgment under the indirect method. Once again, as
discussed previously, Day fails to offer any evidence she was treated less favorably than some
similarly situated employee who did not engage in the statutorily protected activity and therefore
fails to establish a prima facie case. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 663
(7th Cir. 2006). Accordingly, Day’s retaliation claim is dismissed.
3. Count V & VI: Illinois Whistleblowing Act & Breach of Contract State Law Claims
Having dismissed all of Day’s federal claims, this Court ultimately has discretion over
whether to exercise supplemental jurisdiction over Day’s state law claims. Carlsbad Tech., Inc.
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v. HIF BIO, Inc., 556 U.S. 635, 129 S. Ct. 1862, 1866, 173 L. Ed. 2d 843 (2009); 28 U.S.C. §
1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a claim . . .
if . . . the district court has dismissed all claims over which it has original jurisdiction . . . .”).
This Court declines to exercise jurisdiction over Day’s state law claims.
Nonetheless, this Court notes that even if it were to exercise jurisdiction over Day’s
claims, her state law claims would be dismissed. The Illinois Whistleblower Act provides that
“[a]n employer may not retaliate against an employee for refusing to participate in an activity
that would result in a violation of a State or federal law, rule or regulation.” 740 ILCS 174/20.
In order to sustain a cause of action under the Act, Day must establish that (1) she refused to
participate in an activity that would result in a violation of a state or federal law, rule, or
regulation and (2) Inland and SomerCor retaliated against her because of that refusal. See Nelson
v. Levy Home Ent’'t, LLC, 2012 U.S. Dist. LEXIS 15320, 21-22 (N.D. Ill. Feb. 8, 2012) (citing
Sardiga v. Northern Trust Co., 409 Ill. App. 3d 56, 61, 948 N.E.2d 652, 656-57, 350 Ill. Dec.
372 (2011)). A Whistleblower Act claim requires the plaintiff to show that refusal to participate
in an illegal activity caused her employer to retaliate against her. See Nelson v. Levy Home Ent’'t,
LLC, No. 10 C 3954, 2012 U.S. Dist. LEXIS 15320, at *21-22 (N.D. Ill. Feb. 8, 2012). Here,
Day fails to demonstrate that her failure to approve a loan caused Inland and SomerCor to
retaliate against her. The loan which Day refused to approve was investigated by the Office of
Credit Risk Management and no fraud or illegality was found. Additionally, for reasons
previously discussed, Day fails to proffer any evidence of discriminatory intent.
As to Day’s breach of contract claim Day fails to proffer any evidence that she was in
fact due a $50,000 bonus. The contact outlining Day’s second year bonus merely provides an
equation by which her bonus would be calculated. The contract does not specify that Day was
due $50,000 specifically. The only evidence proffered by Day in support of this amount is her
own email stating that she anticipated and expected her bonus to amount to $50,000. This was
not a specific provision of the contract, nor does Day proffer any evidence that the calculation as
provided by the contract would have resulted in such an amount. Additionally, Maslic and Frank
were not opposed to giving Day a bonus altogether. She was offered a lower bonus and refused
to accept anything less than $50,000, although her contract did not provide that she would
receive $50,000. (Dkt. 135 at ¶ 34). Accordingly, Day offers no evidence that there was a
breach of the parties’ agreement. Day’s state law claims are therefore dismissed.
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Conclusion
For the foregoing reasons, the defendants’ motions for summary judgment are granted.
Day’s complaint is dismissed in its entirety.

IT IS SO ORDERED.

Date: September 18, 2013
____________________________
Sharon Johnson Coleman
United States District Judge

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