Wessman v. DDB Chicago, Inc. et al

Filing 46

MEMORANDUM Opinion Signed by the Honorable Charles P. Kocoras on 10/29/2013.Mailed notice(yp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

AUDREY WESSMAN,
Plaintiff,
v.
DDB CHICAGO INC.,
Defendant.

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12 C 6712

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the motion for summary judgment by
Defendant DDB Chicago, Inc. (“DDB Chicago”) pursuant to Federal Rule of Civil
Procedure 56. For the reasons set forth below, the motion is denied.
BACKGROUND
I.

Facts
The following facts are derived from the parties’ respective statements and

exhibits filed pursuant to Northern District of Illinois Local Rule 56.1. The Court
reviews each Local Rule 56.1 statement and disregards any argument, conclusion, or
assertion unsupported by the evidence in the record. DDB Chicago is an advertising
agency and a subsidiary of DDB Worldwide, Inc. (“DDB Worldwide”). Plaintiff

Audrey Wessman (“Wessman”) was employed intermittently with DDB Chicago
between 1997 and 2011.
On February 14, 2011, Wessman returned to DDB Chicago as an independent
contractor to work on the Wrigley account.

She completed a brief stint of

approximately two months on this assignment, and DDB Chicago offered Wessman
the position of Account Director on the Safeway account, effective March 21, 2011.
Wessman accepted the position with a salary of $100,000. Previously, she had been
earning approximately $12,000 per month as an independent contractor.
Safeway is the second largest grocery chain in the United States. The Safeway
account differed from the Wrigley account in that Safeway was based on the West
Coast whereas Wrigley was locally based. Thus, working on the Safeway account
required travel to the West Coast. Also, the two-hour time zone difference caused
difficulties for Wessman with respect to participating in phone conferences with
Safeway’s West Coast representatives. Wessman made these concerns known prior to
accepting DDB’s offer, citing her need to pick up and otherwise care for her children.
Wessman claims that she accepted the job on the condition that she would undertake
an eighty percent work load, an assertion which DDB Chicago disputes.
Wessman began working on the Safeway account. The working environment
was not harmonious; there existed two “camps” of team members. The first consisted
of supporters of Brian Hurley (“Hurley”), a Senior Vice President/Group Business
Director at DDB Chicago to whom Wessman reported. The other “camp” consisted
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of supporters of Diane Ruggie (“Ruggie”), Group Creative Director and the other
senior DDB official in charge of the Safeway account.
Wessman took six vacation days during her time on the Safeway account. The
parties dispute the significance of these; Wessman claims that she had informed DDB
Chicago of the need for these days prior to her having accepted the assignment. On
May 16, 2011, Wessman claims that she reported vulgar comments by Hurley about
Laurie Kief (“Kief”), a past subordinate of Hurley’s. Hurley denies these comments
which, according to Wessman, consisted of Hurley’s having told her that he had
“always wanted to fuck” Kief. Wessman claims to have made this report to Natalie
Sundquist

(“Sundquist”),

Vice

President/Director

of

Recruiting

&

Career

Development for DDB Chicago, as well as Don Hoffman (“Hoffman”), Executive
Vice President/Global Business Director at DDB Worldwide. Wessman claims that
Hoffman “burst out laughing” when he heard about Hurley’s comment. Sundquist
and Hoffman deny that Wessman reported this conduct to them.
Over the Memorial Day weekend, Elizabeth West (“West”), one of Wessman’s
subordinates, told Wessman about an e-mail that contained a picture of Kief playing
pool with a subject line stating something like “would you like to fuck her”.
Wessman claims that she reported West’s statement about the e-mail to Sundquist on
June 2, 2011. Wessman also claims that she told Sundquist that she (Wessman)
suspected Hurley of having sent the e-mail because of his prior comments about Kief,
as well as his having the capability to send such an e-mail via his phone. Sundquist
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admits that Wessman told her generally about the e-mail, which Sundquist had
previously investigated without being able to determine the identity of the sender.
On May 18, 2011, Wessman had a meeting with members of the Safeway
account team that did not include Hurley. What occurred in the meeting, however, is
disputed. According to DDB Chicago, Wessman spoke disparagingly of Hurley,
claiming that he did not support Ruggie and other team members. In other words,
Wessman, DDB claims, was attempting to widen the gulf between Hurley and
Ruggie. DDB Chicago also alleges that Wessman encouraged team members to
communicate with Safeway representatives separate from Hurley and to “treat
[Hurley] like a client” in that only positive comments about the team’s performance
should be made to him.
Wessman offers a different version of the meeting. According to her, she was
trying to act as a peacemaker between the Hurley and Ruggie “camps.” Rather than
attempting to keep Hurley out of the loop, Wessman claims that her comment about
treating him like a client was intended to eliminate the negative comments directed
towards Hurley. In other words, just as a client should not be addressed negatively,
neither should Hurley. Wessman denies that she claimed that Hurley did not support
Ruggie or other team members.
On June 9, 2011, Wessman, Hurley, Hoffman, and Sundquist had what
amounted to a “summit meeting” regarding the Safeway account stemming from
friction between Wessman and Hurley. Hoffman offered to arrange the Safeway
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account any way Wessman wanted so as to allow her to stay on it. Hoffman claims
that he viewed the meeting as productive, and Wessman was “really super flattered”
that Hoffman was willing to allow her to design her work on the Safeway account in
whatever way worked for her.

The other events at that meeting are disputed,

however. Wessman claims that she expressed her desire not to continue working for
Hurley due to how vulgar he was. Sundquist and Hoffman deny that this issue arose.
What is undisputed is that Wessman sent an e-mail to Hoffman, Hurley, and
Sundquist resigning from the Safeway account later that evening. Wessman indicated
that: (i) the position of Account Director for the Safeway account required long,
grueling days and much travel; (ii) the level of engagement required was
“impossible”; (iii) the time zone difference caused problems for Wessman; and
(iv) she could not specify the hours during which she would be available to work.
Wessman claims that Hurley’s behavior was the main reason that she could not
remain on the Safeway account.
According to Wessman, she was unsatisfied with DDB Chicago’s response to
her reports about Hurley’s conduct, so she reported it to Linda Waste (“Waste”),
Senior Vice President/Director of Talent for DDB Chicago. Wessman further alleges
that she reported Hurley’s conduct to Dick Rogers (“Rogers”), Chairman of DDB
North America, who was dismissive, according to Wessman. DDB Chicago denies
that Wessman made any of these reports.

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Meanwhile, Wessman was searching for other accounts to join. On June 6,
2011, DDB Chicago announced that the Wrigley account would be expanding, and
Wessman sought a position on it. After Wessman had resigned from the Safeway
account, Sundquist sent an e-mail to Heather Malenshek (“Malenshek”), head of the
Wrigley account on June 14 in which she requested that Malenshek “defer” Wessman
to Sundquist should Wessman inquire of Malenshek about a position on that account.
On June 24, 2011, Waste e-mailed Wessman that Wessman would not be a
good fit for the Wrigley account. Wessman declined Sunquist’s request to submit a
formal letter of resignation from DDB Chicago. On July 5, 2011, DDB Chicago
terminated Wessman’s employment.
II.

Procedural History
On September 26, 2011, Wessman filed a charge of retaliation with the Equal

Employment Opportunity Commission (“EEOC”). She named DDB Worldwide as
the employer responsible for the conduct and listed DDB Chicago’s address. On May
23, 2012, the EEOC issued a Notice of Right to Sue letter to Wessman.
On October 11, 2012, Wessman filed a two-count first amended complaint
alleging: retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq. against DDB Chicago and DDB Worldwide (Count
I); and a breach of contract claim under Illinois law against DDB Chicago, DDB
Worldwide and Hurley (Count II). On December 13, 2012, this Court dismissed both
counts against Hurley and DDB Worldwide but denied DDB Chicago’s motion to
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dismiss these counts. See Wessman v. DDB Chi., No. 12 C 6712, 2012 U.S. Dist.
LEXIS 176562 (N.D. Ill. Dec. 13, 2012). On July 11, 2013, DDB Chicago moved for
summary judgment pursuant to Federal Rule of Civil Procedure 56.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings, discovery, disclosures,
and affidavits establish that there is no genuine issue of material fact, such that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant
bears the initial burden of showing that no genuine issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on
which the non-movant bears the burden of proof at trial. Id. at 325. The non-movant
may not rest upon mere allegations in the pleadings or upon conclusory statements in
affidavits; she must go beyond the pleadings and support her contentions with
documentary evidence. Id. A genuine issue of material fact exists when, based on the
evidence, a reasonable jury could find in favor of the non-movant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary
judgment, the court construes all facts and draws all reasonable inferences in favor of
the non-movant. Smith v. Hope Schs., 560 F.3d 694, 699 (7th Cir. 2010).

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DISCUSSION
I.

Title VII Retaliation Claim
DDB Chicago argues that summary judgment is proper because Wessman

cannot show that her termination occurred in retaliation for her having reported
Hurley’s alleged misconduct. Title VII forbids employers from discriminating against
an employee for opposing a practice prohibited by Title VII, or for participating in an
investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a) (the
“anti-retaliation statute”). The purpose of the anti-retaliation statute is to protect
victims of discrimination who complain about illegal conduct to the EEOC, the courts,
or the employer itself. See generally Stephens v. Erickson, 569 F.3d 779, 786 (7th
Cir. 2006).
A plaintiff may establish a claim for unlawful retaliation via either the direct or
indirect method of proof. Id. at 786. To establish a prima facie case of retaliation
under the direct method, a plaintiff must show that: (i) she engaged in protected
expression; (ii) she suffered an adverse employment action; and (iii) a causal link
existed between the two. Kasten v. Saint-Gobain Perform. Plastics Corp., 703 F.3d
966, 972 (7th Cir. 2013).

A plaintiff may prove retaliation by either direct or

circumstantial evidence. Id. at 972.
Direct evidence is that which, if believed by a jury, will prove the particular
fact in dispute “without reliance upon inference or presumption.” Id. at 973 (citation
omitted).

Circumstantial evidence “allows a jury to infer retaliation[.]”
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Id. A

plaintiff may prove retaliation through circumstantial evidence by showing:
(i) suspicious timing, ambiguous statements or behaviors; (ii) evidence that similarly
situated employees who did not lodge complaints were treated differently than the
plaintiff; or (iii) “a pretextual reason for an adverse employment action.” Id. (citation
omitted). In other words, causation can be demonstrated “by presenting a convincing
mosaic of circumstantial evidence that would support the inference that a retaliatory
animus was at work.” Cloe v. City of Indianapolis, 712 F.3d 1171, 1180 (7th Cir.
2013) (citation and internal quotation marks omitted). “Title VII retaliation claims
require proof that the desire to retaliate was the but-for cause of the challenged
employment action.” Univ. of Tex. Southwestern Med. Ctr. v. Nassir, 133 S. Ct. 2517,
2528 (2013).

After Nassir, the Seventh Circuit has expressly endorsed the

“convincing mosaic” approach to proving causation under the direct method. See
Hobgood v. Ill. Gaming Bd., 722 F.3d 1030, 1032 (7th Cir. 2013) (“This case presents
a good example of a plaintiff’s use of the ‘convincing mosaic’ approach to showing
that an employer acted for unlawful reasons.”).
The indirect method calls for the plaintiff to establish the first two prongs of the
direct method, plus a showing that she performed her job satisfactorily but was treated
less favorably than similarly situated employees who did not complain of
discrimination. Stephens, 569 F.3d at 786-87. If the plaintiff satisfies her initial
burden under the indirect method, the defendant must articulate a legitimate, nondiscriminatory reason for its actions. Id. at 787. If the defendant does so, the burden
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shifts back to the plaintiff, who must show that the defendant’s stated reason is a
pretext to a discriminatory motive. Id.
Wessman argues that DDB Chicago’s reasons for having terminated her: (i) are
pretextual; and (ii) have shifted over time. “Pretext is a lie, specifically a phony
reason for some action.” Fischer v. Avanade, Inc., 519 F.3d 393, 403 (7th Cir. 2008).
The Court will catalogue some of the reasons for Wessman’s termination that, when
drawing reasonable inferences in her favor, constitute pretext.
DDB Chicago argues that it terminated Wessman because she resigned from
the Safeway account and that her performance on that account contributed to
divisiveness, thus rendering her unworthy of reassignment to other accounts. Yet,
Wessman was told when she sought reassignment that no openings on other accounts
were available.

Hoffman made similar assertions in his deposition; however,

Christiansen was hired on June 27 as Account Director for the Wrigley account—over
a week prior to Wessman’s termination. The Court draws the reasonable inference in
Wessman’s favor that the Wrigley account (setting aside other accounts) did have an
opening for which DDB Chicago was seeking candidates during the relevant time
period. If Wessman’s divisiveness had been the principal cause for concern, the Court
fails to see why Wessman would have been given the explanation regarding a dearth
of open positions.
DDB Chicago also cites Wessman’s request for more compensation as a
justification for her termination. Christiansen, however, received a $165,000 salary
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for her position on the Wrigley account. Christiansen was hired prior to Wessman’s
termination for a position about which Wessman had been told that no openings
existed.

Additionally, it is a reasonable inference that Wessman sought more

compensation due to her increased work load beyond what she had contractually
agreed to perform. (The Court shall elaborate upon Wessman’s breach of contract
claim in Part II, infra.)
DDB Chicago has offered another reason for Wessman’s not having been
assigned to the Wrigley account: Malenshek’s dissatisfaction with Wessman’s
performance on it earlier in 2011.

Yet, Hoffman and Sundquist testified that

Wessman’s having been given the Account Director position on the Safeway account
had been influenced by the positive feedback they had received regarding her
performance on the Wrigley account under Malenshek. Wessman also testified that
she received praise from Malenshek during her time on the Wrigley account. The
issue of Malenshek’s view of Wessman’s performance, therefore, is one of fact for a
jury to determine.
DDB Chicago principally argues that Wessman was terminated because she
resigned from the Safeway account on June 9 after Hoffman had offered to arrange
Wessman’s working conditions any way she wanted.

Wessman disputes this

contention, claiming that the main issue for her on the Safeway account involved
Hurley’s vulgarity. Wessman continued to report Hurley after she had resigned from
the Safeway account, and neither Hoffman nor Sundquist told Wessman that she
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would not be assigned to other accounts due to her resignation from the Safeway
account. Instead, Wessman was told that there were no openings on other accounts
after she had indicated a willingness to work on other accounts. It is reasonable to
infer, therefore, that Wessman’s resignation from the Safeway account was not the
main reason for her termination.
A final issue that perplexes the Court involves expense accounts.

DDB

Chicago indicated in its response to Wessman’s EEOC charge that Wessman had
displayed unprofessional judgment with respect to these accounts; however, Hoffman
testified later that the issue had not played a role in Wessman’s termination. This
example highlights the potentially shifting reasons for Wessman’s termination, which
may constitute evidence of pretext. See Kasten, 703 F.3d at 974.
The timing of Wessman’s termination is also suspicious when viewing the facts
in the light most favorable to her. Wessman claims that she reported Hurley multiple
times—first on May 16 followed by reports on June 2 and June 14. She claims that
she resigned from the Safeway account because of Hurley’s vulgar behavior. Hurley
denies this behavior, and Hoffman, Sundquist and Waste deny that Wessman made
most of these reports. DDB Chicago concedes that Wessman referenced West’s
comments about an e-mail on June 2, though DDB Chicago denies that Hurley’s name
arose. Wessman was terminated on July 5—approximately three weeks after her last
report to Waste. Wessman also claims that she reported Hurley to Rogers on June
20—fifteen days before her termination.
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With respect to the comparison between Wessman and other employees of
DDB Chicago, the parties dispute in detail which other employees were similarly
situated to Wessman and how those employees were treated. The Court need not
delve into this issue, however. When drawing all facts and reasonable inferences in
Wessman’s favor, a reasonable jury could find that DDB Chicago’s reasons for
having terminated Wessman are pretextual and that the reasons have shifted over
time. A reasonable jury also could find, if it believes Wessman’s account, that the
timing of her termination was suspicious. Thus, a reasonable jury could find, under
the “convincing mosaic” approach, that Wessman’s reports about Hurley caused her
termination in violation of Title VII. As such, DDB Chicago’s motion for summary
judgment with respect to Wessman’s Title VII claim is denied.
II.

Breach of Contract Claim
DDB Chicago avers that summary judgment is proper with respect to this claim

because Wessman’s alleged damages are too speculative.

According to DDB

Chicago, since Wessman’s new salary with AETNA pays her $100,000 annually—the
same salary that she was earning in her role on the Safeway account at DDB
Chicago—she has been made whole after her termination. Any additional damages,
DDB Chicago contends, would be speculative because it is unclear what Wessman
should have been paid aside from her $100,000 salary. Finally, DDB Chicago posits
that the integration clause of the contract bars extrinsic evidence propounded by
Wessman regarding the eighty percent work load and the scheduling flexibility issue.
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The Court is unpersuaded by DDB Chicago’s arguments. First, there exists a
material dispute of fact as to what Wessman had agreed to in terms of scheduling
flexibility and the amount of work that she would perform for DDB Chicago.
Wessman avers that she agreed to a work load of eighty percent in exchange for her
acceptance of a below-market salary of $100,000. Instead, Wessman alleges, she was
forced to endure a full work load, and this burden interfered with her child care needs.
Wessman, therefore, is asserting that she was underpaid for the work that she
performed for DDB Chicago, and her $100,000 salary with AETNA does not cure this
alleged loss of the benefit of Wessman’s bargain. Wessman, in effect, argues that she
was paid based upon an eighty percent work load when she was in fact performing a
full work load.
With respect to DDB Chicago’s suggestion that any other damages are
speculative because conflicting evidence exists as to how similar account directors
were compensated, the Court is equally unpersuaded. The record indicates that, for
instance, Christiansen received a salary of $165,000 for her work on the Wrigley
account. Wrigley is, of course, different from Safeway, and no two accounts are
identical. This argument, however, is properly reserved for a jury. The parties have
submitted differing figures as to what account directors were paid in 2011, but a
dispute over the amount of damages—a common occurrence—does not per se justify
the granting of summary judgment with respect to this issue. A jury can sift through

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the conflicting evidence regarding the proper amount of pay for a full-time account
director and determine what (if any) damages are proper.
The Court addressed DDB Chicago’s argument with respect to the integration
clause of the contract when it denied DDB Chicago’s motion to dismiss Wessman’s
complaint.

See Wessman, 2012 U.S. Dist. LEXIS 176562, at *12-14. The contract

is silent with respect to the number of hours required to be worked. Nothing in the
record since the Court’s ruling has altered the Court’s reading of the contract as a
partially integrated one due to this omission. The question of the eighty percent
schedule is one of fact that will be decided by a jury and not this Court. As DDB
Chicago has failed to illustrate the lack of a material dispute of fact regarding
Wessman’s breach of contract claim, the motion for summary judgment with respect
to this count is denied.
III.

Wessman’s Request for Sanctions
In her response memorandum, Wessman complains that DDB Chicago’s

motion for summary judgment is “frivolous” and that it comes “perilously close” to
violating Federal Rule of Civil Procedure 11. Wessman appears to request not only
costs but attorneys’ fees incurred in responding to the instant motion.

While

Wessman carries the motion as “frivolous[,]” she does not explicitly allege that DDB
Chicago violated Rule 11, instead using the “perilously close” language. While the
Court agrees that summary judgment is inappropriate with respect to both counts, the
Court declines to characterize DDB Chicago’s motion as having been brought in bad
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faith or in any other way unethical. As such, Wessman’s request for costs and
attorneys’ fees with respect to the response to the instant motion is denied.
CONCLUSION
The instant case is rife with disputes of material fact, including: (i) what
Wessman reported; (ii) to whom she reported it; (iii) why she was terminated;
(iv) why she resigned from the Safeway account; (v) whether she agreed to a
$100,000 salary in exchange for an eighty percent work load and scheduling
flexibility due to the needs of her children; and (vi) what (if any) damages are
required to make her whole. Given the vast array of disputes, a jury is the proper
arbiter to resolve the conflicts, and DDB Chicago’s motion for summary judgment is
denied in its entirety. Wessman’s request for costs and attorneys’ fees incurred in
responding to the instant motion is also denied.

____________________________________
Charles P. Kocoras
United States District Judge
Dated: October 29, 2013

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