Eskridge v. Chicago Board Of Education et al
Filing
84
MEMORANDUM Opinion and Order:Defendants' motion for summary judgment is granted. 46 This action is dismissed with prejudice. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 6/16/2014:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Ebony Eskridge,
Plaintiff,
v.
The Chicago Board of Education,
Linda Walker, Jerrold Washington,
and Paul Jones,
Defendants.
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No. 11 C 7308
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Plaintiff Ebony Eskridge, an engineer at Garrett Morgan Elementary School
(“Morgan”) from September 2009 to February 2011, alleges that former Morgan
principals Linda Walker and Jerrold Washington, the Chicago Board of Education
(the “Board”), and Board employee Paul Jones, (collectively, “Defendants”) denied
her requests to work overtime after the school day because she was a woman and
retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000 et seq. (“Title VII”), and the Equal Pay Act of 1963, 29
U.S.C. § 206(d), as amended (the “Equal Pay Act”). R. 8. Presently before the Court
is Defendants’ motion for summary judgment. R. 46. For the reasons explained
below, Defendants’ motion is granted.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The following background is a summary of the material facts, viewed in
the light most favorable to Eskridge.
Background
In 1998, the Board and Chicago Park District (the “Park District”) entered
into an Intergovernmental Agreement, which allowed the Park District and the
Board to use each other’s property for various programs. R. 72 at 2-3 (¶ 8). The
Board and the Park District agreed that neither party would pay a fee to the other
as a result of the usage. Id. at 3 (¶ 8). Morgan was one of the schools that the Park
District used to host programs—it became Mahalia Jackson Park after the school
day ended. Id. at 8 (¶ 36). The Chicago Park District Program (“CPDP” or the “Park
2
District program”) generally operated an afterschool program at Morgan on Monday
through Friday from 2:00 p.m. to 8:00 p.m. Id. at 3 (¶ 10).
Under Principal Walker, there was one engineer staffed at Morgan. R. 72 at
3 (¶ 11). The engineer’s hours were 6:00 a.m. to 2:00 p.m. Id. If the engineers
worked during the afterschool Park District program—after their regularly
scheduled time of work—they were paid overtime. R. 48-1 at 25:19-22. 1 The
engineers maintained the school heating and cooling, performed repairs at the
school, and scheduled custodial staff. R. 81 at 7 (¶ 9). The custodians staffed at
Morgan worked eight hour shifts on a sliding schedule, so their shifts started at
staggered times from 5:00 a.m. through the early afternoon. R. 72 at 3 (¶ 12). Their
duties were to keep the facilities at Morgan clean. R. 48-1 at 24:18-20.
The Board had funding, identified by a “bucket number” which could be used
to pay for overtime during the Park District program hours. R. 81 at 3 (¶ 4); R. 48-1
at 20:10-22, 57:16-23. When Park District programs were conducted at Morgan,
there were normally two custodial workers present for the program. R. 48-1 at
22:10-14. Principal Walker testified that their tasks were to clean and close the
building. Id. 23:6-10. The custodians were not paid overtime during the Park
District programs unless they had to stay beyond their regular eight hours shifts for
an emergency because their shifts included the Park District program hours. Id. at
25:23-27:1.
Where applicable, page numbers in exhibits are referred to by the page number
assigned by the electronic filing system.
1
3
Linda Walker was the principal of Morgan from May 2002 through June 30,
2010. R. 72 at 1 (¶ 2). From 2003 until August 2005, for unexplained reasons,
Principal Walker was absent from Morgan School and was not supervising the staff.
Id. at 4 (¶ 15). When Principal Walker returned to the school in October 2005, she
was informed by the Office of Operations that the school engineer, Filiberto
Hernandez, had accumulated over $4,000 in overtime pay. Id. at 4 (¶ 16).
Hernandez transferred to another Chicago Public School in 2006. R. 72 at 5 (¶ 19).
In October 2006, Principal Walker hired Desmond Hill as the engineer at
Morgan School. R. 72 at 5 (¶ 20). Principal Walker testified that she “had allowed
Mr. Hill to do payroll, which was customary for engineers to do for their
department. And it was brought to [her] attention that he was arbitrarily using
Park District at his discretion. Whenever he wanted to work, he was -- so [she] had
to take that task away from him.” R. 48-1 at 58:13-22. Principal Walker further
testified that Hill was “abusing” the administration of payroll. R. 48-1 at 64:19-65:6.
Walker’s testimony suggests that Hill was inputting payroll for CPS, but was also
working and entering overtime during the Park District program at his discretion.
Hill resigned after an investigation about his time-keeping irregularities, including
“double-dipping,” because he was seen at other locations during the time that he
was scheduled to work at Morgan. R. 72 at 5-6 (¶ 23). Principal Walker testified
that this caused her to be more vigilant about the use of overtime. R. 72 at 5-6 (¶
23); R. 48-1 at 59:11-14.
4
In September 2009, Principal Walker hired Eskridge as an engineer for
Morgan. R. 72 at 2 (¶ 7). When Eskridge was hired, Principal Walker told her that
“overtime was not needed for the engineer at Morgan.” R. 72 at 6 (¶ 25). It was
Principal Walker’s practice to be at the school to supervise the custodians during
the Park District program, after the school day ended. R. 48-1 at 50:12-19. If
Principal Walker was not there, there was no supervisor to oversee the custodial
staff that worked until the end of the Park District program. R. 48-1 at 53:3-9. In
September 2009, Eskridge asked the assistant principal, Joseph Haley, if she could
work overtime during the Park District program and he approved it. R. 72 at 6 (¶
26).
On October 22, 2009, Principal Walker issued Eskridge a letter of concern. R.
72 at 7 (¶ 29). The letter asked Eskridge to explain her use of overtime and why,
after Principal Walker and Eskridge had “a couple” of conversations about how
overtime hours were used at Morgan, Eskridge stayed past her 2:00 p.m. quitting
time. Id. However, Principal Walker approved overtime for Eskridge in December
2009 for special projects and emergencies. R. 72 at 6 (¶ 27). On December 24, 2009,
Eskridge sent an email to her union president, William Iacullo, stating that she
would like to file a grievance because “Ms. Walker only wants me to use the park
district overtime bucket when I have a special project to do that she will approve
of.” R. 72 at 7 (¶ 30). Iacullo responded by email stating that “[We] have had this
issue with [Principal Walker] before.” R. 72 at 7 (¶ 31).
5
Principal Walker approved overtime for Eskridge in January 2010 for
performing “preventative maintenance” around the school. Eskridge testified that
she also worked overtime in February 2010. R. 72 at 6 (¶ 27). Eskridge’s overtime
sheets also show that she worked overtime in March, April, and June of 2010. R. 72
at 6-7 (¶ 28). On March 17, 2010, Principal Walker issued Eskridge a cautionary
notice regarding her use of overtime during the Park District program hours. Id. at
7 (¶ 32).
On March 31, 2010, Iacullo filed a grievance on behalf of Eskridge. R. 72 at 7
(¶ 33). The grievance alleged that Eskridge was “being denied her contractual right
to be present and on duty for occupancy of Non Board programs that are funded
with fees for usage of the building outside normal hours. Specifically, the Chicago
Park District.” Id. at 8 (¶ 34). According to the agreement between the Board and
International Union of Operating Engineers, AFL-CIO, Local 143-143B (the “CBA”),
Section 7-2.2 “the engineer-in-charge or his/her designee shall be present and on
duty for such occupancies when non-BOARD programs provide for fees paid for
building usage pursuant to the permit procedure.” R. 72 at 3 (¶ 9) (emphasis added).
On May 11, 2010 a grievance meeting was held. R. 72 at 8 (¶ 35). On May 24,
2010, Principal Walker denied the grievance and wrote a letter explaining her
reasoning, which stated:
Ms. Eskridge is not being denied her contractual rights to be present
and on duty for occupancy of Non-Board programs that are funded
with fees for usage of the building outside of normal hours.
Specifically, the Chicago Park District. There are no fees being paid.
The Chicago Public Schools and specifically Garrett A. Morgan have
an intergovernmental agreement with the Chicago Park District.
6
Our gym becomes Mahalia Jackson Park at 2:00 p.m. daily and no
funds are exchanged.
R. 72 at 8 (¶ 36). Eskridge appealed Principal Walker’s decision to the Office of
Employee Relations (“OER”). R. 72 at 8 (¶ 37). On June 7, 2010, a hearing took
place on Eskridge’s appeal. Id. Eskridge, union representative Don Colagrossi,
Principal Walker, and OER Hearing Officer Alan Grossman attended. Id.
On June 30, 2010, while the OER decision was pending, Principal Walker
retired as principal of Morgan. R. 72 at 8 (¶ 38). Jerrold Washington became
principal of Morgan effective July 1, 2010, through January 1, 2012. R. 72 at 2, 8
(¶¶ 3, 38). When Principal Washington became principal, Eskridge requested
overtime for the Park District program. Id. at 8 (¶ 39). Principal Washington
granted Eskridge’s requests and Eskridge worked Park District program overtime
in September and October 2010. Id. at 9 (¶ 40). 2 On an unspecified date around
September 2010, Eskridge requested that her husband, Donte Eskridge (“Donte”),
an engineer at another school, be allowed to work her overtime hours at Morgan. Id.
at 9 (¶ 41). Principal Washington did not believe that was appropriate and he
declined the request. Id. at 9 (¶ 42).
On October 5, 2010, the OER issued a grievance decision on Eskridge’s case.
R. 72 at 9 (¶ 44). OER determined that because the Park District did not pay a fee,
the CBA did not require the engineer-in-charge or his/her designee to be in the
Defendants stated (and plaintiff did not contest) in their Statement of Facts that
“Principal Walker granted Plaintiff’s requests . . . in September and October 2010,”
R. 48 ¶ 40, but the Court assumes the parties meant to state that Principal
Washington granted the requests as Defendants cite Principal Washington’s
deposition and because Principal Walker had retired by that time.
2
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building. Id. at 9 (¶ 45). Principal Washington showed the October 5, 2010 decision
to Eskridge and told her that she could continue to work overtime during the Park
District program hours if she requested it in advance and he authorized it. R. 72 at
9 (¶ 46). On November 17, 2010, Eskridge filed a charge with the EEOC alleging sex
discrimination in violation of Title VII. R. 72 at 10 (¶ 51). The box for retaliation
was not checked on Eskridge’s EEOC complaint. Id. In early February 2011,
Eskridge transferred to Farragut High School. R. 72 at 2 (¶ 5). At some point after
Eskridge left Morgan, Dwayne Craig worked as an engineer at Morgan under
Principal Washington. R. 48-2 at 24:2-5.
On July 18, 2011, the EEOC issued Eskridge a notice of right to sue letter. R.
1-1. Eskridge filed her lawsuit on October 14, 2011. R. 1. She filed an amended
complaint on November 18, 2011. R. 8. Eskridge alleges that the Defendants
discriminated against her based on sex by denying her access to overtime during
afterschool Park District programs and
preventing her from receiving the
corresponding overtime pay. Defendants argue that Eskridge’s claims of
discrimination are unfounded.
Analysis
I. Title VII Discrimination Claim
Title VII of the Civil Rights Act forbids an employer “to discriminate against
any individual with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1). Disparate allocation of overtime may be brought
8
as a claim under Title VII. Lewis v. Chic., 496 F.3d 645, 653-54 (7th Cir. 2007).
Whether unequal access to overtime constitutes a claim under Title VII depends on
the type of work and prevalence of overtime. Id. Denial of “more transient” benefits
may not be an adverse employment action under Title VII. Id. at 653 (citing
Barricks v. Eli Lilly and Co., 481 F.3d 556, 559 (7th Cir. 2007)). However, where
overtime is a significant and recurring part of the employee’s total earnings or
would allow the employee to move forward in his or her career, the disparate
allocation of overtime may violate Title VII. Lewis, 496 F.3d at 654.
A plaintiff can prove illegal discrimination either directly or indirectly.
Greene v. Potter, 557 F.3d 765, 768 (7th Cir. 2009). Eskridge attempts to establish
her discrimination claim under both the direct and indirect methods of proof. The
Court addresses each in turn.
A.
Direct Method
“‘Direct’ proof . . . includes both evidence explicitly linking an adverse
employment action to an employer’s discriminatory animus . . . and circumstantial
evidence that would permit the trier of fact to infer that discrimination motivated
the adverse action.” Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013)
(internal citations omitted). To illustrate the idea that circumstantial evidence must
permit the inference of discrimination, the Seventh Circuit has used the metaphor
of a mosaic “whose individual tiles add up to a complete picture.” Id. However, there
is no “esoteric” mosaic test. Id. Put simply, the circumstantial evidence “must be
strong enough, taken as a whole, to allow the trier of fact to draw the necessary
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inference.” Id. Typical kinds of evidence used for this purpose include “(1)
ambiguous statements or behavior towards other employees in the protected group;
(2) evidence, statistical or otherwise, that similarly situated employees outside of
the protected group systematically receive better treatment; and (3) evidence that
the employer offered a pretextual reason for an adverse employment action.” Id. at
995-96 (quoting Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th Cir. 2011)).
In opposing a motion for summary judgment, a plaintiff “must produce
enough evidence, whether direct or circumstantial, to permit the trier of fact to find
that [her] employer took an adverse action against [her] because of [her protected
class].” Morgan, 724 F.3d at 997. “If the plaintiff can assemble from various scraps
of circumstantial evidence enough to allow the trier of fact to conclude that it is
more likely than not that discrimination lay behind the adverse action, then
summary judgment for the defendant is not appropriate, and the plaintiff may
prevail at trial even without producing any ‘direct’ proof.” Id. at 996.
Eskridge concedes that she has no direct evidence of discrimination. She does
not contend that anyone told her she was denied overtime because of her sex or that
anyone made statements to her regarding her sex at all. R. 72 at 10-11 (¶ 52).
Instead, Eskridge cites circumstantial evidence of what she characterizes as:
“suspicious timing, ambiguous behavior, . . . that similarly situated employees
received more favorable treatment by Defendants[,]” and claims “that Defendants’
stated reason for the difference in treatment is unworthy of belief.” R. 70 at 4.
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1. Suspicious Timing and Ambiguous Statements/Behavior
Eskridge claims that the timing of the Defendants’ denial of overtime was
suspicious because it was only after she was hired that “overtime was not necessary
when the CPD conducted programs at Morgan.” R. 70 at 4. Eskridge claims that
ever since the Park District program started (in 1998), engineers worked overtime
associated with the program. Id. She alleges that four other male engineers—
Vertner Oden, Hernandez, Alessandri Kimber, and Hill—“routinely” worked
overtime, and that Kimber and Hill indicated that they were able to “work the
program freely.” Id.
Eskridge’s argument is not persuasive, primarily because she did work some
overtime during her time at Morgan. Although Eskridge claims that she did not
receive “program” overtime, 3 she admits that she requested and was approved for
overtime at Morgan in September 2009 and December 2009 for “special projects and
emergencies” and in January 2010 for performing “preventative maintenance
around the school.” R. 72 at 6 (¶27). Eskridge also testified that she worked
overtime in February 2010, that her time sheets show that she worked overtime in
March, April, and June 2010, and that, in total from September 2009 through
February 2011 (when she transferred from Morgan School), she worked a total of
180.40 hours of overtime. R. 72 at 6-7 (¶¶ 26-28).
In her declaration, Eskridge claims that the overtime hours for the CPDP “did not
compare” to the other overtime hours because “the CPDP overtime was constant
and the other overtime was random depending on the circumstances.” R. 72-10 ¶ 5.
This distinction boils down to the number of overtime hours worked, and Eskridge
concedes that she did indeed work some overtime hours during her time at Morgan.
R. 72 at 6-7 (¶¶ 26-28).
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Moreover, the circumstances surrounding Principal Walker’s greater
vigilance in overtime policy—based on the abuses of the two engineers who
preceded Eskridge—belie Eskridge’s suggestion of suspicious timing. Principal
Walker became more vigilant after she learned of the overtime abuses by
Hernandez and Hill, who transferred and resigned, respectively, from their
positions as engineers at Morgan.
Similarly, Kimber worked at Morgan prior to Principal Walker’s discovery of
the Hernandez and Hill abuses. Kimber states in his affidavit that he was employed
as an engineer with the Board “on or around 2003-2004,” prior to Principal Walker’s
discovery of Hill’s payroll abuse. R. 72-11 ¶ 4. Eskridge also claims that Oden
worked as an engineer at Morgan “several years prior” to her. R. 70 at 8. If Oden in
fact worked overtime as an engineer at Morgan (for which no evidence has been
presented), it was also necessarily prior to Principal Walker’s discovery of the
Hernandez and Hill abuses. 4 The increased scrutiny of overtime requests made
after these abuses is not suspicious at all.
Eskridge also claims that after she left Morgan in February 2011, Dwayne
Craig and another engineer (whom she does not identify by name) worked overtime
hours at Morgan until the Park District program ended in 2012 “on a regular basis
with no restriction.” R. 70 at 5. However, Eskridge fails to identify any evidence
Moreover, Eskridge conceded that she had no direct knowledge of Oden’s working
overtime for Park District functions. R. 72-4 at 10-11.
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about the circumstances or number of overtime hours they worked. 5 No evidence
has been presented that male employees were treated according to a different policy
than Eskridge was—under either Principal Walker or Principal Washington.
Eskridge has failed to assert evidence suggestive of suspicious timing of the policy
in place during Principal Walker’s tenure to carefully police overtime hours after
the abusive practices of Hill and Hernandez. This policy appears gender neutral in
its application.
Eskridge contends that Defendants’ “behavior” in “handling” overtime
“presents several ambiguities.” R. 70 at 5. Although the allegation is vague,
Eskridge is apparently claiming as circumstantial evidence that it is “unclear” why
she would not be able to work overtime for the program if funds were allocated to
the Park District for such purpose. Id. Eskridge alleges that Principal Walker chose
In her response brief, Eskridge contends that Defendants failed to produce payroll
records for engineers that worked overtime at Chicago Public Schools from 20002008 and 2011-2012. R. 70 at 7-8, n. 2. Eskridge claims that she made a formal
discovery request, requested the documents during her deposition, and made “a
recent request,” id., but makes no mention of seeking to compel production of such
payroll records during the discovery period of this 2011 case. In a footnote, she
requests that the Court deny Defendants’ motion for summary judgment and in the
alternative make a negative inference against Defendants “for failure to provide
said documents.” Id. Eskridge’s requested remedy, however is improper. If Eskridge
wanted to obtain the documents, she should have filed a motion under Federal Rule
of Civil Procedure Rule 56(f) to continue discovery setting forth a justification for a
continuance. See Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328
F.3d 309, 318 (7th Cir. 2003); see also Converso v. United Am. Nurses, No. 09-CV7336, 2010 WL 5139082, at *5 (N.D. Ill. Dec. 10, 2010) (having failed to file a Rule
56(f) motion, plaintiffs could not oppose summary judgment on the ground that
discovery was necessary). The Court will draw no negative inference when Eskridge’
failed to file such a motion or bring the issue before the Court during discovery.
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not to exercise her discretion to give Eskridge overtime opportunity, instead using
the funds for reasons outside their “designated purpose.” Id.
Eskridge further argues that Principal Walker’s testimony that she became
more vigilant about overtime after the abuses of Hill and Hernandez is “not
relevant” “in light of the program’s history, designated funds, and consistent hours.”
R. 70 at 5. Despite Eskridge’s characterization of Principal Walker’s testimony as
ambiguous, Eskridge does not dispute that Principal Walker used her “discretion”
in allocating overtime after the abuses of Hill and Hernandez. R. 70 at 5-6.
Eskridge’s identification of “ambiguous behavior” is misplaced. She fails to
identify any ambiguous statements or behavior that would serve as circumstantial
evidence to support allegations of discrimination—statements or behavior towards
others in the protected group (women). See Dickerson v. Bd. of Trustees of Cmty.
Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011) (“[th]e type of circumstantial
evidence that a plaintiff may produce to survive summary judgment includes: . . .
ambiguous statements or behavior towards other employees in the protected group”)
(emphasis added). Moreover, there is nothing ambiguous about Principal Walker’s
testimony about her overtime vigilance. 6
Eskridge suggests that “[a]ny concern about the misuse of overtime by two prior
engineers should be directed at Principal Walker for failure to supervise her
employees” and monitor their overtime. R. 70 at 5-6. Eskridge claims that although
Principal Walker determined certain overtime to be wasteful, that was not a basis
to deny Eskridge overtime in the Park District program. R. 70 at 6. This is
ludicrous. Of course it is a basis to deny overtime in general, and Eskridge has not
shown that she was singled out on the basis of her sex to not receive overtime.
6
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2. Systematically Better Treatment for Similarly Situated Employees
Finally, in a related argument, Eskridge asserts that the male engineers in
her position before and after her time at Morgan were “similarly situated to her and
received more favorable treatment.” R. 70 at 6. She claims that they worked
“routine” overtime for the program without advance request and averaged two to
four hours of overtime per day. 7 Id.
A plaintiff has the “burden . . . to establish the similarity between [her]self
and the proposed comparable employees.” Peters v. Renaissance Hotel Oper. Co., 307
F.3d 535, 546 (7th Cir. 2013). Eskridge does not name specific employees in her
argument under the direct method, but in her prima facie argument under the
indirect method, Eskridge names Oden, Hill, Hernandez, Kimber, and Craig 8—“the
Under the direct method, Eskridge is not required to produce evidence that
similarly situated employees were systematically treated better. Hasan v. Foley &
Lardner LLP, 552 F.3d 520, 529-30 (7th Cir. 2008). Nevertheless, such evidence
remains relevant to the direct method and as such, the direct and indirect method
analyses overlap. Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845, 851 (7th
Cir. 2010).
7
Defendants note that Eskridge also identifies Dennis Rounds as a comparator and
argue that he is not a comparator because he was never staffed at Morgan and did
not report to the same supervisor as Eskridge. R. 47 at 10. While Eskridge stated in
her deposition that Rounds was an engineer treated more favorably than she was at
Morgan, R. 48-4 at 41, 56, she makes no reference to Rounds in her amended
complaint or her response to summary judgment. Further, she presents no evidence
about Rounds or his alleged overtime work at Morgan. R. 8, 70. To the extent that
there are additional individuals, including Rounds, to whom Eskridge would
compare herself, her claims are either conclusory or unclear. Oest v. Ill. Dep’t. of
Corrs., 240 F.3d 605, 615 (7th Cir. 2001) (plaintiff must offer specific evidence
rather than conclusory assertions of similarly situated employees).
8
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former and current engineers at Morgan School”—as employees to whom she is
similarly situated. R. 70 at 7. 9
Although a similarly situated employee need not be “identical,” Caskey v.
Colgate-Palmolive Co., 535 F.3d 585, 592 (7th Cir. 2008), he must be “directly
comparable to the plaintiff in all material respects . . . .”
Naik v. Boehringer
Ingelheim Pharm., Inc., 627 F.3d 596, 600 (7th Cir. 2010) (quoting Patterson v.
Indiana Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009)). Plaintiff must be
“similarly situated with respect to performance, qualifications, and conduct.” Radue
v. Kimberly–Clark Corp., 219 F.3d 612, 617 (7th Cir.2000). Typically, the plaintiff
must show that the other employee “shared the same supervisor, performance
standards, and ‘engaged in similar conduct without differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of
them.’” (quoting Radue, 219 F.3d at 617-18).
Individuals subject to a different
policy or standards than the plaintiff are not similarly situated. South v. Ill. Env’t.
Prot. Agency, 495 F.3d 747, 752 (7th Cir. 2007) (noting employees are typically
Defendants contend that Eskridge improperly cites her own Exhibit J, Donte
Eskridge’s affidavit, at page six of her response by citing to R. 70 ¶ 12. Specifically,
Defendants claim that the citation is improper because Exhibit J is an incomplete,
unsigned declaration which may not be considered on summary judgment. R. 80 at
4 n.5.
Even if the Court were to consider Donte’s statements in Exhibit J about
engineers at other schools working regular overtime, they would not save Eskridge’s
“similarly situated” argument. She has not presented evidence that engineers at
other schools were employed at Morgan or worked overtime under Principal Walker
or Principal Washington at Morgan. See, e.g., South v. Ill. Env’t. Prot. Agency, 495
F.3d at 752 (noting employees are typically similarly situated if they had the same
supervisor, were subject to the same employment standards and engaged in similar
conduct).
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similarly situated if they had the same supervisor, were subject to the same
employment standards, and engaged in similar conduct); Thomas v. Norfolk S. Ry.
Co., No. 09-CV-7383, 2013 WL 791449, at *5 (N.D. Ill. Mar. 4, 2013) (holding
employee must be under same policy to be similarly situated); Johnson v. Koppers,
Inc., No. 10-CV-3404, 2012 WL 1906448, at *8 (N.D. Ill. May 25, 2012) (observing
similarly situated comparator must be “subject to the same standards of conduct”).
Eskridge fails to present sufficient factual support that either Oden or Craig
worked overtime hours at Morgan. She does not present testimony or an affidavit
from either. Donte Eskridge’s affidavit (whose admissibility Defendants dispute)
states that Oden and Craig “regularly” worked at Morgan and that Craig worked
four hours of overtime per day for three days a week from July 2011 to September
2012. Those claims—even if specified to assert that Craig worked those overtime
hours at Morgan—are inadmissible as hearsay statements offered to prove the
truth of the matters asserted therein, as they fail to show how Donte had personal
knowledge of Oden and Craig’s overtime at Morgan. Fed. R. Evid. 801(c) and 802;
Martin v. Shawano–Gresham Sch. Dist., 295 F.3d 701, 713 (7th Cir. 2002)
(statements in affidavit premised on hearsay and based on the affiant’s
“understanding” are inadmissible and cannot be used to defeat a motion for
summary judgment).
Eskridge’s remaining comparators—Kimber, Hill, and Hernandez—also are
not similarly situated. Kimber’s affidavit states that he was employed as an
engineer with the Board “on or around 2003-2004,” that he worked overtime during
17
the Park District program at Morgan, that “the overtime during the CPDP was
almost daily for 2-4 hours,” and that he did not have to make a request to work
overtime hours or get pre-approval from Principal Walker. R. 72-11 ¶¶ 4, 6, 13. This
implies that Kimber worked two to four hours of Park District overtime during his
time at Morgan, but Kimber does not explicitly state where he worked the
overtime. 10 Moreover, although Principal Walker does not identify the month in
2003 that she left Morgan, she was absent from some point in 2003 through August
of 2005. R. 72 at 4 (¶ 15.). Kimber’s employment as an engineer with the Board “on
or around 2003 to 2004” would mean that if he worked under Principal Walker at
Morgan, it would have been at some point in 2003, prior to the incidents with Hill
and Hernandez which caused Principal Walker to become more vigilant about the
overtime policy. See, e.g., Thomas v. Norfolk S. R. Co., No. 09 CV 7383, 2013 WL
791449, at *5 (N.D. Ill. Mar. 4, 2013) (finding comparator was not relevant because
he was subject to a different policy than plaintiff); see also Snipes v. Ill. Dep’t of
Corr., 291 F.3d 460, 463 (7th Cir. 2002) (affirming district court’s conclusion of lack
of commonality and noting that the difference in supervisors under whom plaintiff
and others worked resulted in disparate application of and adherence to employer’s
policy and process).
Hill and Hernandez also were not similarly situated to Eskridge. They
engaged in misconduct which was the basis for Principal Walker’s vigilance
In his affidavit, Kimber states that he worked overtime during the Park District
program at Morgan and states in another paragraph that “the overtime for the
CPDP was almost daily for 2-4 hours.” R. 72-11 ¶¶ 6, 13.
10
18
regarding the overtime policy. Until Principal Walker returned from her leave in
October 2005, she was clearly not Hernandez’s supervisor. When Principal Walker
returned to Morgan from leave she found out that Hernandez had accumulated
$4,000 in overtime pay. R. 72 at 4 (¶ 16). After Iacullo filed a grievance about the
overtime issue, Hernandez transferred to another Chicago Public School. Id. at 5 (¶
19).
Hill’s time-keeping irregularities and Principal Walker’s vigilance about the
overtime program in response distinguish him from Eskridge. Hill also was not
similarly situated to Eskridge because he had the additional responsibility for
payroll entry for himself and custodians, which Eskridge does not claim that she
was permitted to do. R. 72 at 5 (¶22). Principal Walker later discovered Hill was
misusing the payroll entry system and she took that responsibility away from him.
Id. at 5 (¶ 22). Hill resigned following an investigation by the Board that he was
“double dipping” when he was seen at other locations when he was supposed to be
working at Morgan. R. 72 at 5-6 (¶ 23).
Eskridge has not met her burden to show that the other male engineers were
similarly situated and has not presented evidence that they were systematically
treated better than she was with respect to overtime. Eskridge’s circumstantial
evidence, taken together, would not allow a trier of fact to draw the necessary
19
inference that discrimination motivated Defendants in depriving her of overtime
work. 11
B.
Indirect Method
The indirect method of proof involves three steps. First, the plaintiff must
produce evidence establishing a prima facie case by demonstrating that: (1) she is a
member of a protected class; (2) she was performing her job satisfactorily; (3) she
suffered an adverse employment action; and (4) the employer treated similarly
situated employees outside of the protected class more favorably. Arizanovska v.
Wal-Mart Stores, Inc., 682 F.3d 698, 702 (7th Cir. 2012). Second, if a plaintiff
establishes a prima facie case, the burden shifts to the employer to produce a
legitimate, nondiscriminatory reason for the employment action. This has been
described as “[a] light burden.” Stockwell v. City of Harvey, 597 F.3d 895, 901 (7th
Cir. 2010). Third, once the employer has produced a legitimate, nondiscriminatory
reason for its decision, the plaintiff then has the burden of producing sufficient
evidence to show that reason to be pretextual. Id.
1. Eskridge’s Prima Facie Case
As discussed above in the direct method analysis, Eskridge has not produced
evidence that the five male engineers she identifies—Oden, Hill, Hernandez,
Kimber, and Craig—were similarly situated to her and treated more favorably than
Eskridge claims that with regard to suspicious timing, Defendants’ bases for their
“deviation from the customary practice,” including Principal Walker’s discretion and
the abuses of overtime by past engineers, are nothing more than pretext. R. 70 at 45. These allegations of pretext, along with Eskridge’s pretext allegations under the
indirect method, discussed infra pp. 20-22, do not contribute to an inference of
discrimination under the direct method.
11
20
she was. See, e.g., Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845, 851 (7th
Cir. 2010) (noting that the “similarly situated” and “pretext” analyses are
substantially the same under both the direct and indirect method). Accordingly, she
cannot establish a prima facie case and her claim fails.
Even if Eskridge could establish a prima facie case, Defendants have
provided a legitimate, non-discriminatory reason for the policy—Principal Walker
became “vigilant” about the overtime after her discovery of the abuses of overtime
and payroll by Hernandez and Hill. Even if Principal Walker’s business decisions
were
“ill-considered
or
unreasonable,”
if
she
honestly
believed
the
nondiscriminatory reasons she gave for her actions, pretext does not exist. Little v.
Ill. Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004) (citing Clay v. Holy Cross
Hosp., 253 F. 3d 1000, 1007 (7th Cir. 2001)).
Eskridge argues that Defendants’ reasoning is baseless because the program
“was well-established, and operated at almost 38 schools with numerous engineers
that worked overtime without issue.” R. 70 at 12. She contends that Defendants fail
to explain why the overtime is not warranted on a “regular” basis at Morgan since it
has an afterschool Park District program. Eskridge also asserts that Defendants fail
to explain why she would not be able to work overtime hours for the program when
funds were allocated to compensate the engineers for overtime. Id. She repeats her
claim that the onus should have been on Principal Walker to better supervise and
monitor the overtime hours worked and the amount reported to payroll. Id. at 1213.
21
Eskridge’s argument is not convincing. Courts are not “superpersonnel
departments.” Stockwell v. City of Harvey, 597 F.3d 895, 902 (7th Cir. 2010)
(quoting Blise v. Antaramian, 409 F.3d 861, 867 (7th Cir. 2005)). As the Seventh
Circuit has repeatedly stated, “it is not the court’s concern that an employer may be
wrong about its employee’s performance, or be too hard on its employee. Rather, the
only question is whether the employer’s proffered reason was pretextual, meaning
that it was a lie.” Gates v. Caterpillar, Inc., 513 F.3d 680, 691 (7th Cir. 2008)
(quoting Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir. 2005)). A plaintiff
therefore has the burden of establishing that “the employer’s proffered reasons are
factually baseless, were not the actual motivation for the [adverse action] in
question, or were insufficient to motivate the [adverse action].” Peters v.
Renaissance Hotel Operating Co., 307 F.3d 535, 538 (7th Cir. 2002) (quoting Gordon
v. United Airlines, Inc., 246 F.3d 878, 888-89 (7th Cir. 2001)). Eskridge has
presented no rational basis for concluding that Principal Walker’s proffered reasons
for being vigilant with the policy were pretextual or unworthy of belief. Walker v.
Bd. of Regents of Univ. of Wisc. Sys., 410 F.3d 387, 395 (7th Cir. 2005).
Eskridge’s discrimination claim therefore also fails under the indirect
method.
II. Title VII Retaliation Claim
Eskridge claims that she was subject to retaliation for filing a March 31, 2010
grievance and November 17, 2010 EEOC charge against Defendants. R. 70 at 15.
Defendants contend that they did not retaliate against Eskridge. R. 47 at 16.
22
Under Title VII, it is unlawful for an employer “to discriminate against any of
his employees . . . because [the employee] has opposed any practice made an
unlawful employment practice by this subchapter, or because [the employee] has
made a charge . . . under this subchapter.” 42 U.S.C. § 2000e-3(a). As with a Title
VII discrimination claim, a plaintiff can establish unlawful retaliation either
directly or indirectly (proceeding under a burden-shifting method). Harper v. C.R.
England, Inc., 687 F.3d 297, 309 (7th Cir. 2012). Eskridge attempts to establish her
retaliation claim under the direct method of proof. R. 70 at 15.
A. Direct Method
To prove a retaliation claim under the direct method, the plaintiff “must
present direct evidence of (1) a statutorily protected activity; (2) an adverse action
taken by the employer; and (3) a causal connection between the two.” Rhodes v. Ill.
Dep’t of Transp., 359 F.3d 498, 508 (7th Cir. 2004). “As in the context of a disparate
treatment claim, fulfillment of the prima facie case shifts the burden to the
defendant to articulate a non-retaliatory action for the challenged action. If the
defendant does provide a legitimate explanation, the burden shifts back to the
plaintiff to show evidence that the proffered reason is pretextual.” HoffmanDombrowski v. Arlington Int’l Racecourse, Inc., 254 F.3d 644, 653 (7th Cir. 2001).
Relying on direct evidence, Eskridge asserts that Principal Walker retaliated
against her in multiple ways for filing a grievance and an EEOC charge against the
Defendants. Specifically, Eskridge contends that Principal Walker denied her
overtime. Eskridge claims that when she questioned Principal Walker about that
23
denial, Principal Walker filed cautionary notices against her and took away her
responsibilities to enter work orders and to manage and write up the custodial staff.
R. 70 at 15.
Complaining to an employer about impermissible discrimination and filing a
charge of discrimination with the EEOC are statutorily protected activities.
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). Eskridge’s
grievance, however, said nothing about sex discrimination. It stated that she was
being denied her “contractual rights to be present and on duty for occupancy of Non
Board programs that are funded with fees for usage of the building outside normal
hours.” R. 48-9 at 2. It further alleged that she had been told that she was not
permitted to work after her regular scheduled hours even though there were
contractors in the building. It also requested that Eskridge be made whole by
“resuming the terms of her contractual rights” Id.
Because Eskridge’s March 31, 2010 grievance does not indicate that any
discrimination occurred because of her age, race or sex, it cannot form the basis for
protected activity. See, e.g., Tomanovic, 457 F.3d at 663 (“Although filing an official
complaint with an employer may constitute statutorily protected activity under
Title VII, the complaint must indicate the discrimination occurred because of sex,
race, national origin, or some other protected class”); see also Williams v. City of
Chic. Bd. of Educ., No. 10-CV-7105, 2012 WL 3023313, at *7 (N.D. Ill. July 24,
2012) (finding that neither plaintiff’s grievance form or addendum to his union
could form the basis for protected activity because neither document indicated that
24
the alleged discrimination took place because of his age, race, or sex (citing Kodl,
490 F.3d at 563)); Onofrei v. Gen. Sec. Servs. Corp., No. 04-CV-5560, 2005 WL
3312599, at *9 (N.D. Ill. Dec. 5, 2005)) (finding plaintiff’s union grievances, attached
to her complaint, did not constitute activity protected under Title VII, including sex
and race discrimination, where they did not reference any discrimination prohibited
by Title VII).
Additionally, as Eskridge concedes, she did not check the box for “retaliation”
in her November 17, 2010 EEOC charge. Generally, a Title VII plaintiff may bring
only those claims included in her EEOC charge, Cheek v. W. & S. Life Ins. Co., 31
F.3d 497, 501 (7th Cir. 1994), or that are “like or reasonably related to the
allegations of the charge and growing out of such allegations.” Jenkins v. Blue Cross
Mut. Hosp. Ins., 538 F.2d 164, 167 (7th Cir.) (en banc), cert. denied, 429 U.S. 986
(1976). The Seventh Circuit has held that failure to include alleged retaliatory
action in the EEOC charge that took place prior to that charge precludes the
inclusion of such claims in a retaliation claim. See McKenzie v. Ill. Dep’t of Transp.,
92 F.3d 473, 483 (7th Cir. 1996) (holding that the retaliatory acts which occurred
prior to plaintiff’s original EEOC charge, but which were not included therein, could
not then serve as the basis of the retaliation claim alleged in her complaint “because
each of those incidents of retaliation could have been—and should have been—
included in her administrative charges”). The Court may, however, consider alleged
retaliatory actions that took place after Eskridge’s November 17, 2010 EEOC filing,
to the extent that they are reasonably related to the allegations of the charge and
25
grow out of such allegations. See id. at 483 (permitting the remaining incidents
which occurred after the filing of plaintiff’s amended charge to be considered as
evidence of her retaliation claim, despite the fact that “retaliation” was not alleged
in her administrative filings).
In her response to Defendants’ motion for summary judgment, however,
Eskridge does not identify any specific retaliatory action that took place subsequent
to her EEOC charge. R. 70 at 15. Additionally, Eskridge testified that the only
instances of retaliation against her were Principal Walker’s cautionary notices,
which were issued on March 17 and April 14, 2010. R. 72 at 10 (¶ 7). Those took
place prior to Eskridge’s EEOC charge of November 17, 2010. Therefore, the Court
may not consider them.
Moreover, in her response, Eskridge names only Principal Walker as having
retaliated against her. R. 70 at 15. Eskridge testified that Principal Washington
and Paul Jones did not retaliate against her. R. 70 at 15, R. 72 at 10 (¶ 47). Any
alleged retaliation by Principal Walker necessarily must have taken place before
her June 30, 2010 departure from Morgan, which was also before Eskridge’s
November 17, 2010 EEOC filing. Therefore, there could be no retaliation by
Principal Walker because of Eskridge’s November 17, 2010 EEOC filing, and
Eskridge’s retaliation claim fails.
III. Equal Pay Act Claim
The Equal Pay Act prohibits employers from paying workers of one sex less
than workers of the opposite sex in return for doing the same work unless the pay
26
differential is justified by factors other than sex. Fyfe v. City of Fort Wayne, 241
F.3d 597, 600 (7th Cir. 2001) (citing Wollenburg v. Comtech Mfg. Co., 201 F.3d 973,
975 (7th Cir. 2000)). To prove a prima facie case of discrimination under the Equal
Pay Act, a plaintiff must demonstrate (1) different wages were paid to employees of
the opposite sex, (2) the employees performed equal work requiring equal skill,
effort, and responsibility, and (3) the employees had similar working conditions. Id.
(citing Bragg v. Navistar Int’l Transp. Corp., 164 F.3d 373, 378 (7th Cir. 1998)).
Once the plaintiff demonstrates a prima facie case, the burden shifts to the
defendant to prove that the pay disparity is due to “(i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by quantity or quality of
production; or (iv) a differential based on any other factor other than sex.” Id.
(quoting 29 U.S.C. § 206(d)(1)). The Equal Pay Act’s fourth affirmative defense “is a
broad, catch-all exception that embraces a nearly limitless array of ways to
distinguish among employees. Fyfe, 241 F.3d at 600 (citing Dey v. Colt Constr. &
Dev. Co., 28 F.3d 1446, 1462 (7th Cir. 1994)).
Eskridge attempts to establish a prima facie case under the Equal Pay Act on
the same ground underlying her Title VII claim—asserting that the “overtime
compensation” that was paid to other male engineers at Morgan was different from
hers because she was denied the opportunity to work the Park District overtime. R.
70 at 14.
Although the case law is sparse, in Fyfe, the Seventh Circuit implied that a
claim for unequal access to overtime may not satisfy the wage disparity element of
27
the Equal Pay Act. 241 F.3d at 600 (stating that “even if the denial of the
opportunity to work overtime satisfies the element of an Equal Pay Act claim – and
at least one court has held that it does not,” the defendant had established a basis
for differential treatment) (citing True v. N. Y. State Dep’t of Corr. Servs., 613 F.
Supp. 27, 30-31 (W.D.N.Y. 1984)). In True, the plaintiff received the same wages as
her male coworkers, but was denied overtime assignments due to her sex. 613 F.
Supp. at 30. The court found that even if the plaintiff’s allegations were true, they
would fail to establish a prima facie case under the Equal Pay Act because the
plaintiff did not contend that she was paid at a lower rate than male employees, and
thus the complaint did not allege any unequal wage rates. Id. at 31. Additional
cases from New York district courts have also held that access to overtime would
not satisfy the first element for an Equal Pay Act claim. See Lee v. Syracuse, 603 F.
Supp. 2d 417, 444-45 (N.D.N.Y. 2009); Aguilar v. N.Y. Convention Ctr. Operating
Corp., 174 F. Supp. 2d 49, 55 (S.D.N.Y. 2001).
However, the resolution of whether Eskridge’s alleged denial of overtime
satisfies the element of wage discrepancy under the Equal Pay Act is not critical to
the Court’s analysis. Defendants assert that even if Eskridge could show a prima
facie case of discrimination under the Equal Pay Act, they have satisfied their
burden by providing at least one “differential based on any other factor than sex” for
not providing Eskridge with blanket overtime: the CBA between the Engineer’s
union and the Board did not require overtime. R. 47 at 14-15. Because the Park
District did not pay a fee for use of the facilities at Morgan, the Board was not
28
required to staff an engineer during that time or pay overtime. Id. 12 While this
provides Defendants with a legitimate fiscal reason for not giving blanket overtime
to Eskridge, Eskridge and other male engineers worked at least some overtime at
Morgan. See 29 U.S.C. § 206(d)(1)(iv). Defendants have also explained that any
difference in Eskridge’s overtime hours with those of male engineers at Morgan was
due to Principal Walker’s increased vigilance with engineer overtime after the
abuses of Hernandez and Hill. Because any alleged difference in overtime hours is
clearly “due to a factor unrelated to gender,” there is no violation. Lindale v.
Tokheim Corp., 145 F.3d 953, 957 (7th Cir. 1998).
IV. Conclusion
Eskridge has failed to demonstrate any genuine issue of material fact on her
Title VII and Equal Pay Act claims such that a reasonable juror could find in her
favor. Therefore, the Defendants’ motion for summary judgment, R. 46, is granted
in its entirety. This action is dismissed with prejudice.
Eskridge claims that the fee relationship between the Board and the Park
District was “not regarded” except for the time period when she was employed at
Morgan. R. 72 at 3 (¶8). Eskridge provides no basis for that assertion other than her
own affidavit. In it, she states that “the fee relationship between the Board and the
Chicago Park District was basically ignored prior to me seeking to work the routine
CPDP overtime.” R. 72-10 ¶ 11.
Eskridge’s conclusory statement, however, lacks support in the record and
factual foundation. See, e.g., Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.
1997) (affidavits submitted in support of summary judgment must show that there
is admissible evidence to support the asserted fact); Joseph P. Caulfield & Assocs.,
Inc. v. Litho Products, Inc., 155 F.3d 883, 888 (7th Cir. 1998) (affidavits lacking in
foundation are not sufficient).
12
29
ENTERED:
Honorable Thomas M. Durkin
United States District Judge
Dated: June 16, 2014
30
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