Murray v. Astrue

Filing 55

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/19/2014:Civil case terminated. Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DORIS MURRAY,
Plaintiff,
Case No. 11 C 8887
v.
Hon. Harry D. Leinenweber

CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Doris Murray (“Murray”) brings this action against
her current employer, the Social Security Administration (the
“SSA”), alleging that her supervisor discriminated against her on
account of her age, color, disability, and race, retaliated against
her for filing inter-agency Equal Employment Opportunity (“EEO”)
complaints, and assigned her an intolerable workload designed to
force her to retire.

The SSA has moved for summary judgment

pursuant to Rule 56 of the Federal Rules of Civil Procedure.

For

the reasons stated herein, the Motion is granted.
I.

BACKGROUND

Murray is a 70-year-old, dark-skinned, African-American woman
who suffers from hypertension, a respiratory condition, knee and
foot problems that require her to walk with a cane, and stress.
She began her employment at the SSA in 1964 and currently holds the

position of Technical Expert.
position

within

the

(“CSI”).

Robert

director,

is

SSA’s

In 2006, Murray was assigned to a

Center

for

Coplin (“Coplin”),

Murray’s

immediate

Security

who

and

serves

as

supervisor.

Integrity
the

CSI’s

Coplin

is

approximately 54 years old and is African-American.
Initially, Coplin expressed some displeasure about having
Murray placed on his team because of the circumstances in which she
had left her previous position.

According to Coplin, Murray had

been “forced out” of her old team due to a problematic relationship
with her supervisors.

(Coplin Dep. at 25, ECF No. 48-1).

Coplin

conveyed his feelings about Murray at a meeting with two other
individuals from his staff, during which he wondered aloud why
Murray, “who ha[d] a long commute, is not in the best of health,
[and] is up there in years, continue[d] to hold on to a job that
[was not] giving her anything.”

(Id. at 28).

Coplin further

stated his opinion that, since Murray had “maxed out” her pension
benefits, she “should just go ahead and retire.”
Although

Murray

contends

that

Coplin

also

(Id.).
disclosed

his

intention to assign her a workload designed to “force her to
retire,” the only basis for that allegation is a question her
counsel posed to Coplin at his deposition.

Coplin denied ever

making such a remark, however, and because Murray was not present
at the staff meeting and a lawyer’s questions to a witness are not
evidence, the Court finds Murray’s allegation in that regard to be

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unsupported by the record.

Accordingly, the alleged comment will

be disregarded.
In any event, Murray claims that her workload was first
adjusted sometime in mid-2010.

Each year, CSI employees are

responsible for completing security audits at various SSA regional
field offices.

In 2010, Murray was assigned field site visits at

three offices in Michigan.

After completing one of these site

visits, however, she fell seriously ill and was hospitalized.
Although Murray returned to work for a short period thereafter, she
continued to take numerous sick days and eventually applied for
extended medical leave.

At a staff meeting on May 5, 2010, Coplin

announced that he was unsure if Murray would be able to complete
her audits in time for their deadline in August.

Consequently,

Coplin sought volunteers to cover Murray’s remaining two site
visits.
As a replacement for her previously assigned work, Coplin
tasked

Murray

with

the

responsibility

of

managing

six

state

agencies that the SSA contracts with to make medical determinations
on disability claims.

This assignment required Murray to oversee

nine separate Disability Determination Services locations (“DDSs”)
comprised of a total of approximately 3,000 employees.

Although

Murray contends that this level of responsibility ordinarily would
be shared among several specialists, she did not voice any concerns
to Coplin about her workload and there is no indication that she

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struggled to adjust to her new assignment. Indeed, Murray believes
that she did an “outstanding job” and that the DDSs for which she
was responsible are now running “better than . . . ever.”

(Pl.’s

Local Rule 56.1 Resp. to Def.’s Stmt. of Facts (“Pl.’s 56.1 Resp.”)
¶¶ 23-24, ECF No. 49).
Despite

her

apparent

success,

Murray

alleges

that

her

performance ratings suffered in 2010 because she completed fewer
site visits than she had performed in previous years.
Murray’s overall

performance

evaluation

rating

of

While

“successful

contribution” remained the same from 2009 to 2010, her ratings in
two individual categories declined slightly:

in 2009, she earned

two 3’s and two 5’s on a scale of 5 for each performance category
but, in 2010, she received all 3s. Coplin explained that, in 2010,
he lowered Murray’s ratings in the categories of “participation”
and “achieves business results,” because of her frequent absences,
late work assignments, and postponing and rescheduling of reviews.
Although Murray contends that her lower numerical average
resulted

in

her

no

longer

qualifying

automatically

for

a

performance-based monetary Recognition of Contribution (“ROC”)
award, she nevertheless did receive ROC awards in both 2009 and
2010.

Her 2010 award was $120 lower but that was because ROC

awards are divided evenly among all employees who qualify in a
given year and the total prize money available varies from year to
year.

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Since joining the CSI, Murray has filed a number of interagency EEO discrimination complaints regarding Coplin.

In 2006,

Murray submitted a complaint alleging that Coplin had expressed an
intention to force her to retire in retaliation for her filing a
previous EEO complaint against him.

Thereafter, in 2010, Murray

filed a complaint alleging that Coplin’s decision to reassign her
two

remaining

site

visits

constituted

unlawful

workplace

discrimination. In 2011, Murray filed yet another EEO complaint in
which she alleged that Coplin had been hostile toward her and
assigned her an “unfair” workload.
determined

that

both

Murray’s

Upon investigation, the SSA

2010

and

2011

complaints

were

meritless. Her 2006 complaint, however, remains pending before the
SSA following a remand from the Equal Employment Opportunity
Commission (“EEOC”).
II.

LEGAL STANDARD

Summary judgment is appropriate where the moving party “shows
that there is no genuine dispute as to any material fact and [it]
is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

A dispute is “genuine” if the evidence would permit a

reasonable jury to find for the non-moving party.
Liberty

Lobby,

Inc.,

477

U.S.

242,

248

(1986).

“material” if it might affect the outcome of the suit.

Anderson v.
A

fact

Id.

is

If the

moving party satisfies its burden, the non-movant must present
evidence sufficient to demonstrate that a genuine factual dispute

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exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

In

doing so, the non-moving party “must do more than show that there
is some metaphysical doubt as to the material facts.”

Sarver v.

Experian Info. Solutions, 390 F.3d 969, 970 (7th Cir. 2004).
Rather, it must demonstrate “through specific evidence that a
triable issue of fact remains on issues for which the nonmovant
bears the burden of proof at trial.”

Knight v. Wiseman, 590 F.3d

458, 463–64 (7th Cir. 2009).
III.
A.
In

her

Amended

ANALYSIS

Abandoned Claims

Complaint,

Murray

raises

a

myriad

of

discrimination, retaliation, and hostile work environment claims
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C.

§

1983

(“Section

1983”),

the

Age

Discrimination

in

Employment Act (the “ADEA”), and the Americans with Disabilities
Act (the “ADA”).

In her papers in opposition to the SSA’s Motion

for Summary Judgment, however, Murray chose to defend only her ADEA
discrimination and Title VII retaliation claims. Consequently, the
remaining
abandoned.

theories

asserted

in

Murray’s

Complaint

are

deemed

See, e.g., Palmer v. Marion Cnty., 327 F.3d 588, 598

(7th Cir. 2003) (claims not pressed in opposition to a motion for
summary judgment are deemed abandoned).

Accordingly, summary

judgment is granted in favor of the SSA on those claims.

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B.

Age Discrimination Claim

The ADEA prohibits discrimination on the basis of age with
respect to employees who are over the age of forty.
§ 623(a)(1); 29 U.S.C. § 631(a).

29 U.S.C.

To sustain a case for age

discrimination under the ADEA, a plaintiff must show that the
employer’s discriminatory action was “actually motivated” by age
such that “age must have played a role in the employer’s decisionmaking process and had a determinative influence on the outcome.”
Mullin v. Temco Machinery, Inc., 732 F.3d 772, 776 (7th Cir. 2013).
Proof of such motivation may be established either directly,
through

direct

or

circumstantial

evidence

of

intentional

discrimination, or indirectly, through a subset of circumstantial
evidence that conforms to the burden-shifting framework set forth
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 801-03 (1973).
Inc.,

574

F.3d

See, Martino v. MCI Communications Servs.,

447,

452

(7th

Cir.

2009)

(explaining

the

distinctions between the direct and indirect methods of proof).
Under either the direct or indirect method, the plaintiff must
demonstrate that she suffered an adverse employment action.
v. Indiana, 744 F.3d 974, 982 (7th Cir. 2014).

Chaib

An adverse

employment action is a “materially adverse change in the terms and
conditions of employment, [which must be] more disruptive than a
mere inconvenience or an alteration of job responsibilities.” Fyfe
v. City of Ft. Wayne, 241 F.3d 597, 602 (7th Cir. 2001) (internal
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quotation marks omitted).
employment

actions

compensation,

Typical examples of actionable adverse

include,

fringe

“(1)

benefits,

termination

or

other

or

reduction

financial

terms

in
of

employment; (2) transfers or changes in job duties that cause an
employee’s skills to atrophy and reduce future career prospects;
and (3) unbearable changes in job conditions, such as a hostile
work

environment

discharge.”
2011).
an

or

conditions

amounting

to

constructive

Barton v. Zimmer, 662 F.3d 448, 453-54 (7th Cir.

However, “not everything that makes an employee unhappy is

actionable

adverse

action.”

Nichols

v.

S.

Ill.

Univ.–

Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007) (quotation marks
omitted).

Rather, there must be some showing that the alleged

employment action caused a significant “quantitative or qualitative
change in the terms or conditions of [the plaintiff’s] employment
or some sort of real harm.”

Nagle v. Vill. of Calumet Park, 554

F.3d 1106, 1116 (7th Cir. 2009).
Although Murray contends that Coplin discriminated against her
on the basis of her age by removing her from her two remaining site
visits, reducing her performance ratings in two categories, and
assigning her an unreasonable DDS workload in an effort to force
her to resign, these incidents neither subjected Murray to nor
resulted in any adverse employment action.
there is

no

evidence that

Murray

was

As an initial matter,

affected

negatively by

Coplin’s decision to reassign her site visits to other employees.

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While Murray claims that she received lower performance ratings as
a result, it is difficult to see how that could be the case since
there was no requirement that CSI employees complete any particular
number

of

site

visits.

Moreover,

Murray’s

2010

performance

evaluation itself indicates that her ratings declined due to her
frequent absences and late work assignments, rather than her
inability to complete her two remaining site visits. (Def.’s Local
Rule 56.1 Stmt. of Facts (“Def.’s 56.1 Stmt.”) ¶¶ 19, 28, ECF
No. 43)
In any event, Murray’s reduced performance ratings had no
effect on the terms or conditions of her employment.
despite

receiving

slightly

lower

marks

in

the

Indeed,

categories

of

“participation” and “achieves business results,” Murray’s overall
rating did not change from 2009 to 2010. Murray was neither denied
compensation nor deemed ineligible for a ROC performance award as
a result of her decreased scores and there is no indication that
she was reprimanded or penalized in any other way in connection
with her performance evaluation.

Because “negative performance

evaluations, unaccompanied by some tangible job consequence, do not
constitute adverse employment actions,” Grube v. Lau Indus., Inc.,
257 F.3d 723, 729 (7th Cir. 2001), Murray’s 2010 performance review
is not actionable.
Lastly, with regard to Murray’s complaints about the DDS
workload

Coplin

assigned

her

in

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place

of

her

site

visit

responsibilities, the general rule is that “[a] simple increase in
workload is not enough to show an adverse employment action.”
Buttron v. Sheehan, No. 00 C 4451, 2003 WL 21801222, at *18 (N.D.
Ill. Aug. 4, 2003); see also, Han v. Whole Foods Mkt. Grp., Inc.,
--- F.Supp.2d. ---, 2014 WL 2448927, at *11 (N.D. Ill. May 28,
2014) (collecting cases).

Occasionally a substantial increase in

job responsibilities can amount to an adverse action when shown to
be excessively disproportionate to the workloads of other similarly
situated employees, see, Feingold v. New York, 366 F.3d 138, 153
(2d Cir. 2004), or when accompanied by a material change in working
conditions or a functional decrease in salary, see, Minor v.
Centrocor, Inc., 457 F.3d 632, 634 (7th Cir. 2006). Neither is the
case here.
At the outset, Murray’s only evidence that her workload was
any heavier than that of other CSI employees is her subjective
belief that it was disproportionate. Although Murray contends that
she was charged with overseeing a DDS workload that ordinarily
would have been shared among several employees, any additional
responsibilities she may have assumed were balanced by the fact
that she no longer was responsible for completing any work related
to her two remaining site visits.
her

new

DDS

responsibilities

Thus, even if Murray felt that

were

more

challenging

than

her

previous assignments, she has adduced no proof that would permit a

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reasonable jury to conclude that her overall workload was more
onerous relative to the workloads of other CSI employees.
Nor has Murray shown that her DDS workload altered any of the
essential aspects of her employment at the SSA. Critically, Murray
does not allege that she was expected to work additional hours or
that

her

new

assignments

stymied

opportunities

for

future

advancement or resulted in a reduction in salary or deprivation of
benefits.

There also is no evidence that would suggest that

Murray’s increased responsibilities were so oppressive that they
created a hostile work environment or employment conditions so
intolerable

that

“a

reasonable

involuntary resignation.”

person

would

be

forced

into

Tutman v. WBBM-TV, Inc./CBS, Inc., 209

F.3d 1044, 1050 (7th Cir. 2000).

While the Court does not doubt

that Murray may have been displeased with some of the tasks that
Coplin assigned her, there simply is insufficient proof that her
workload constituted a material change in her working conditions
giving rise to an adverse employment action. See, e.g., Darnell v.
Target Stores, 16 F.3d 174, 179 (7th Cir. 1994), overruled on other
grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013) (no
adverse employment action where plaintiff “showed only that his job
was difficult, and required him to work long hours and perform
unpleasant tasks”).
Although the lack of an adverse action is enough to spell the
end to Murray’s ADEA claim, the Court wishes to emphasize that this

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is not a case that would have proceeded had Murray been able to
show a material adverse change in the terms or conditions of her
employment.

Murray’s entire discrimination case hinges upon two

isolated comments that Coplin made at a staff meeting sometime in
2006, during which he stated that Murray should “just go ahead and
retire” because she was “getting up there in years” and had “maxedout” her benefits.

Stray remarks, such as these, however, are

probative of unlawful discrimination only if made around the time
of and in reference to the alleged discriminatory action, Teruggi
v. CIT Grp./Capital Fin., Inc., 709 F.3d 654, 661 (7th Cir. 2013)
(quotation marks omitted), which, in this case, they were not.
Rather, the comments about which Murray complains were made four
years prior to the events leading to this lawsuit and do not refer
to any employment action at all.

Accordingly, these comments are

insufficient to create a triable issue of fact as to whether
Coplin’s decision to adjust Murray’s workload was motivated by
discriminatory animus.
For these reasons, summary judgment is granted in favor of the
SSA on Murray’s ADEA discrimination claim.
C.

Title VII Retaliation Claim

Murray also advances a retaliation claim, in which she alleges
that Coplin violated Title VII by calling her a “problem child” and
making “repeated negative comments” about her filing of an interagency EEO complaint against him.

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That claim, however, finds no

support in any of the evidentiary materials submitted in this case.
Indeed, neither Murray’s Local Rule 56.1 statements nor anything
else in the record contain any mention of Coplin’s “problem child”
remark or any of the other “negative comments” he is alleged to
have made.

Rather, the “facts” upon which Murray relies appear

only in a three-page excerpt of an appeal brief she filed with the
EEOC, which her counsel in this action submitted as an exhibit that
he purported to “incorporate[] by . . . reference” into Murray’s
summary judgment opposition papers.

(See, Pl.’s Mem. in Opp. to

Def.’s Mot. for Summ. J. (“Pl.’s Opp. Mem.”) at 8, ECF No. 48).
Courts in this District repeatedly have held that “facts
asserted in a brief but not in a Local Rule 56.1 statement are [to
be] disregarded in resolving a summary judgment motion.”

Gray v.

Cannon, 974 F.Supp.2d 1150, 1162 (N.D. Ill. 2013); see also,
Cartwright v. Cooney, No. 10 C 1691, 2013 WL 2356033, at *1 (N.D.
Ill. May

29,

2013)

(“merely

including facts

in

a

responsive

memorandum is insufficient to place an issue before the court to
defeat summary judgment”); MB Fin. Bank, N.A. v. Walker, 741
F.Supp.2d 912, 916 (N.D. Ill. 2010) (“Unsupported statements in
briefs are

not

evidence

and

do not

count.”);

Byrd-Tolson

v.

Supervalu, Inc., 500 F.Supp.2d 962, 966 (N.D. Ill. 2007) (“facts
are properly presented through the framework of the Rule 56.1
statements, and not through citation in the briefs to raw record
material”).

Because Murray has not offered any evidence that
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comports with the requirements of basic summary judgment procedure
or this Court’s Local Rules, the SSA is entitled to summary
judgment on her Title VII retaliation claim.
IV.

CONCLUSION

For the reasons stated herein, the SSA’s Motion for Summary
Judgment [ECF No. 41] is granted.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date:9/19/2014

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