Doe et al v. Velez et al

Filing 136

MEMORANDUM Opinion and Order. Signed by the Honorable Rebecca R. Pallmeyer on 3/13/2014.Mailed notice(meg, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DREW KATTI,
Plaintiff,
v.
SGS NORTH AMERICA INC.,
Defendant.

)
)
)
)
)
)
)
)
)

No. 12 C 7076
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Drew Katti was employed by Defendant SGS North America, Inc. ("SGS"), for
nine months as a manager. In this action under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e-2, Katti alleges that he was the victim of discrimination on the basis of his sex and
national origin, and in retaliation for his complaints. Katti believes that his direct supervisor,
Gayle Velez "hated men," gave women preferential treatment, and ultimately terminated him,
purportedly for performance reasons, while retaining women with worse records. SGS has
moved for summary judgment on all of Katti's claims, and has provided Katti with the
appropriate Local Rule 56.2 notice [105]. Katti's response is disappointing; he has failed to
respond to the individually numbered paragraphs of Defendant's Local Rule 56.1 statement, and
has relied in many instances on inadmissible material in an effort to establish disputes of
material fact. The court nevertheless concludes, for reasons explained briefly here, that Katti
has presented circumstantial evidence that satisfies the court, if barely, that his sex
discrimination claim may proceed. His claims of national origin discrimination and retaliation are
dismissed.
FACTS
As contemplated by the court's rules, Defendant SGS has submitted a Local Rule 56.1
Statement in brief, numbered paragraphs, supported by citations to record materials. (Def.'s

Local Rule 56.1 Statement of Material Facts [106], hereinafter "SGS Statement.") Though he is
not represented by counsel, Plaintiff Katti holds a Ph.D. in chemistry, and could be expected to
comply more carefully with the court's rules for summary judgment briefing. Instead, Katti has
not responded directly to Defendant's statement of facts, but has offered his own additional
description of events, supported only in part by admissible evidence.

(Pl.'s Declatory [sic]

Statement [115-1], hereinafter "Pl.'s Resp.") The court adopts SGS's factual account, where it
is properly supported and unrebutted, but has otherwise construed the record in the light most
favorable to Katti, the non-moving party.
Defendant SGS performs "a wide range of analytical, bioanalytical and clinical trial
testing services" for the pharmaceutical industry. (SGS Statement ¶ 2.) Early in 2011, SGS
sought to hire a new manager of analytical services for its chemistry department at its
Lincolnshire, Illinois location, one of several managers reporting to the department's director,
Gayla Velez. (Id. ¶¶ 12, 13; Katti Dep. [103-2], at 124; Velez Decl. [103-4] ¶ 2.) Plaintiff Drew
Katti, who holds a Ph.D. in Chemical Engineering/Analytical Chemistry and had been employed
in the academic world, was selected for the position and began on September 15, 2011. (SGS
Statement ¶¶ 20, 22.) When hired, Katti received a copy of the employee handbook, which sets
forth SGS's equal employment and anti-harassment policies and directs employees to make
complaints of discrimination or retaliation to their direct supervisors or to the next higher
authority. (Id. ¶¶ 26-29; Katti Dep. at 144, 146-7.) Initially, Katti had no staff reporting directly
to him. (Id. ¶ 25.)

Defendant asserts that this was consistent with its practice for any "new

management hire" (id.), but Katti testified at his deposition that Richard Bunnell, General
Manager of SGS' Lincolnshire location and Velez' supervisor, had assured him in his interview
he would have staff reporting to him within two weeks of starting the job. (Katti Dep. at 131,
152.) He noted, further, that the female who later replaced him did have two staff reporting to
her. (Id. at 189.)

2

Katti's initial assignments involved "writing reports and troubleshooting projects." (SGS
Statement ¶ 30.)

In late October or early November 2011, Velez assigned Katti to perform

what she calls (without elaboration) a "validation," a project she expected would take him two to
three weeks to perform. Velez noted that the "data pack" generated by this project was larger
than she expected, which "suggested to [her] that Katti spent too much time on that task." (Id.
¶ 34.) She also noted that Katti used his own format for a report, rather than adhering to the
template she had given him. (Id. ¶¶ 35, 36.) Katti consulted Velez "on almost a daily basis,"
seeking more assistance than she deemed appropriate and generating concerns about Katti's
leadership ability. (Id. ¶¶ 37-39.) Velez was also concerned because an analyst, Pam Hecht
("Hecht"), complained that Katti's instructions were unclear, and because Katti had admitted that
on one occasion he had "failed to contemporaneously record his development, a task required
in order to be cGMP compliant."1 (Id. ¶¶ 40-43.)
In early 2012, Hecht performed experiments, with instructions from Katti, on a topical
anti-inflammatory drug, but those "experiments could not improve the method." (SGS Statement
¶¶ 44-47.) Katti met with Velez and with General Manager Richard Bunnell to discuss this
project in March 2012; after that meeting, he disappointed Velez by demonstrating unfamiliarity
with some "basic calculations" and by simply repeating the same unsuccessful experiments.
(Id. ¶¶ 48-54.) Velez and Bunnell were also disappointed by Katti's performance working with a
piece of equipment (referred to as the "Elemental Analyzer Project") in February 2012.
Specifically, Katti failed to meet "multiple deadlines" and was unable to answer Velez's
questions about the equipment. (Id. ¶¶ 55-59.)
Late in March, Bunnell met Don Castle, a Senior Vice President at SGS, to discuss a
cost-cutting and reorganization initiative. (Id. ¶¶ 60-61.) Based on his own experience with
1

Defendant has not explained what it means to be "cGMP compliant," but Plaintiff
has identified this in interrogatory answers as an acronym for "current Good Manufacturing
Practice." (See Pl.'s Am. Answers to Def.'s First Set of Interrogs. [115-2], hereinafter "Interrog.
Answers", at 11.)
3

Katti and on information he had received from Velez, Bunnell concluded that Katti was
inefficient, unable to follow directions or manage time, and not worthy of his $80,000 salary. (Id.
¶ 62.) In a March 2012 e-mail to SGS' human resource department, Bunnell identified Katti and
three women as appropriate for layoff. (Id. ¶ 64; E-mail from Bunnell to Durst, 3/2/2012, Ex. D
to Bunnell Decl. [103-5].) In his e-mail, Bunnell described one of the other employees targeted
for layoff, a female assistant manager under Gayla Velez's direction, as "weak in managing
important clients" and noted that she "does not adequately monitor and manage the work of the
lab to ensure critical client work" is handled appropriately. (Id.) At some point after that e-mail
message, however, Bunnell discussed the assistant manager's situation with Velez, who told
him that the employee was "a longtime SGS employee with a history of good performance
evaluations."

Bunnell withdrew the recommendation that this female employee be laid off.

(Supplemental Decl. of Richard Bunnell [120] ¶ 3.) Ultimately, Katti and a male hourly worker of
East Asian origin were the only chemistry department employees laid off, along with three other
workers, in June of that year. (SGS Statement ¶ 66.) Although SGS asserts that Gayla Velez
"did not select or otherwise have any influence over the five employees who were part of the
payroll reduction," Bunnell's account demonstrates that Velez did influence the decision with
respect to her female assistant manager. Moreover, Velez's own sworn declaration states that
she had no influence over the selection of any employees "[o]ther than Katti or the [hourly
worker]." (Velez Decl. [103-4] ¶ 20 (emphasis added).)
Bunnell's (or Velez's) selection of employees for layoff did not result in immediate action.
In May 2012, Velez assigned Katti to the task of managing the testing for a client's dental
products, an assignment she characterizes as a "last chance effort to determine Katti's ability as
a manager." (Id. ¶ 21.) The client forwarded the "protocol" (evidently, a written proposal for the
work to be performed) to Katti, who later agreed to the client's request for expedited
performance. Because Katti did so without warning the client that there would be an increased

4

fee, SGS was required to forfeit the additional payment in order to preserve the client
relationship. (SGS Statement ¶¶ 71-75.)
As noted, Katti has not responded, paragraph by paragraph, to Defendant's Local Rule
56.1 Statement. He has, however, presented facts that, in his view, support his belief that he
was the victim of discrimination at the hands of Gayla Velez. Plaintiff notes that over the course
of his tenure with SGS, he was "never written up nor spoken to about performance" except for
one instance in the late winter of 2011 during which Gayla Velez warned Plaintiff she would
write him up "for some trivial matter" but did not follow through. (Pl.'s Resp. ¶ 1; Katti Dep. at
159-60.) Plaintiff asserts that Ms. Velez never discussed any performance issues with him, and
never gave him a written performance improvement plan or performance evaluation. (Id. ¶¶ 2,
6.)

Notably, Bunnell and Velez appeared to recognize that such feedback could be

constructive: although he has not placed copies of the relevant documents in the record, Katti's
memorandum in opposition to summary judgment quotes from a series of e-mails, exchanged
weeks after the layoff decision, in which Bunnell and Velez discussed preparation of a
Performance Improvement Plan ("PIP") for Katti. (Pl.'s Resp. to Def.'s Mot. for Summ. J. [115]
at 8-9.) Yet such a plan was apparently never furnished.2 Nor did Plaintiff receive what he
perceives to be appropriate oral feedback. In contrast with the women who reported to her, with
whom Ms. Velez "spent hours in her office," Plaintiff claims, Ms. Velez "hardly spent 20 seconds
at any moment speaking with" him. (Id. ¶ 7; Interrog. Answers at 12; Katti Dep. at 181-82.)
Plaintiff complains, further, that Gayla Velez did not assign work to him "that contributed
to the bottom line financially," instead directing him to work on projects that had languished for
months without progress. (Pl.'s Resp. ¶ 8.) According to Katti, he achieved good results on
2

The court is uncertain, in any event, of the sincerity of SGS's commitment to use
of a PIP as a tool for assisting employees with performance issues. As reflected in an e-mail
exchange between Bunnell and Castle in May 2012, Bunnell put one employee, "G.S.," on a
PIP, but evidently assumed it would be unsuccessful. In the same message, Bunnell identified
"G.S." as an employee "to be let go in 2 weeks or less for performance issues." (5/23/2012 emails, Ex. E to Bunnell Decl. (103-5 at 32).)
5

these projects (identified as the "fluocinonide project" and "2 other method development
projects"), but Velez identified them as work the company was required to complete to maintain
good customer relations, and acknowledged that "we don't make any money on these projects."
(Id.) Katti claims he also performed well on a "Performance Qualification" project involving an
oxygen analyzer and on a project referred to as the "Malvern project" or the "Colgate project."
(Id. ¶¶ 9, 10; Katti Dep. at 138-9.) Just two weeks before his termination, Katti contends, he met
with Gayla Velez in her office, pointed out that "every week someone is let go for performance"
and asked her whether he "ha[d] anything to be worried about." Velez responded, "No." (Id.
¶ 11; Interrog. Answers at 12; Katti Dep. at 200.)
In interrogatory answers submitted in opposition to summary judgment, Katti has
provided more detail concerning his difficulties with Gayla Velez. He claims that in his first few
days on the job, Ms. Velez "stormed into" his office and announced that she would not train him.
(Interrog. Answers, at 6; Katti Dep. at 147, 148, 150, 170.) On another occasion, Katti claims,
Velez commented that "men don't multi-task as well as women" and she had "a whole lab full of
people" to prove it.

(Katti Dep. at 171.) She specifically refused to allow Katti to supervise

another worker on spectroscopy equipment with which he was familiar. (Interrog. Answers at
6.)
Plaintiff claims Velez demonstrated hostility toward other men, as well. He observed
that she "screamed at" Bunnell (her supervisor) during meetings and sat at lunch only with
women. (Id. Interrog. Answers at 7.)

On some unspecified date, Katti testified, Bunnell told

Katti that Gayla Velez intimidated Bunnell himself, and that he dreaded going to her office to
speak to her. (Id. at 9; Katti Dep. at 172.) In September 2011, another male, Robert Payson,
the manager for "Metrology/Facilities," asked Plaintiff how he was able to tolerate the harsh tone
Gayla Velez used in communicating with him. (Interrog. Answers at 9; Org. Chart [103-4] at 18.)
Payson and two other workers told Plaintiff, in the fall of 2011, that Gayla Velez was intimidating
and that it appeared to them that she treated women more favorably than men. (Id. at 10; Katti
6

Dep. at 177.) In November or December of 2011, Payson told Plaintiff that he was "terrified" of
Ms. Velez and that he would never want to be in a position of reporting to her. (Katti Dep. at
175, 176.) A worker named Soja told Plaintiff, on an unidentified date, that he should "be
careful of Gayla she gives the white women in the Chromatography group first opportunity to do
the best assignments." (Interrog. Answers at 13.) In the spring of 2012, when Katti approached
Len Wojtowictz, the male director of Quality Assurance, for assistance in getting Gayla Velez's
signature on a document, Wojtowictz told Katti that he, too, was "afraid of Gayla."

(Katti Dep.

at 172, 173.) Though some of these expressions of fear are hearsay, others came from SGS's
management staff. In any event, in light of Plaintiff's pro se status and the fact that he no longer
has ready access to these witnesses, the court is inclined to admit the evidence that other male
workers found working with Ms. Velez stressful, as Plaintiff did.
DISCUSSION
As noted, Plaintiff's complaint alleges that he was the victim of sex discrimination,
national origin discrimination, and retaliation. During the course of the litigation, Plaintiff has
suggested that Defendant discriminated against him because of his gender reassignment, as
well. That claim requires only brief attention. The court disapproves of discrimination on any
such basis, but it is not prohibited by Title VII. See Ulane v. E. Airlines, Inc. 72 F.2d 1081 (7th
Cir. 1984); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007), cited in Creed v.
Family Express Corp., No. 3:06–CV–465RM, 2009 WL 35237 (N.D. Ind. Jan. 5, 2009). The
matter of gender reassignment was not mentioned in any of Plaintiff's administrative filings, nor
in the complaint he filed with this court. And, as Defendant points out, there is no evidence that
any of Defendant's agents or managers were aware of Plaintiff's gender reassignment before
this litigation began. The fact that Defendant may have performed a background check prior to
his hire is plainly insufficient to establish such knowledge.

Plaintiff admitted he has "no

independent knowledge" that Ms. Velez herself was aware of his gender reassignment. (Katti
Dep. at 170.)
7

National origin discrimination and retaliation are prohibited by Title VII, but Plaintiff's
submissions defeat those claims, as well. As Defendant notes, though he identifies as East
Indian, Plaintiff acknowledged that he was born in the United States and that his birth certificate
lists his race as "white." (See Katti Dep. at 161, 214-15.) More importantly, he identified no
circumstances that suggest his national origin had any relationship to Ms. Velez's allegedly
harsh treatment of him, nor his discharge. Katti testified that he complained every week in the
fall of 2011 that Velez was intimidating him, specifically calling her out after she made what he
deemed intimidating remarks. (Id. at 186, 208-09.) Such frequent complaints might well have
been vexing to any busy supervisor. Still, Katti offers no evidentiary basis for the conclusion
that it was those complaints themselves that resulted in adverse action.
Instead, the thrust of Katti's case is that Velez disliked men, treated women more
favorably, and denied him appropriate training, staff, and job assignments. As a result, Katti
was one of just two chemistry department employees (both male) who were laid off by SGS in
June 2012. SGS argues that the evidence is insufficient to create a dispute of material fact on
this claim. To demonstrate this, SGS reviews the familiar elements for proof of a prima facie
case of discrimination under the "indirect method": that (a) plaintiff is a member of protected
class who (b) performed his job satisfactorily but (c) suffered an adverse job action, and (d) that
similarly-situated employees outside of the protected class were treated more favorably. See,
e.g., Eaton v. Ind. Dep't of Corr., 657 F.3d 551, 554 (7th Cir. 2011); Wyninger v. New Venture
Gear, Inc., 361 F.3d 965, 978 (7th Cir. 2004). Plaintiff claims membership in a protected class
on the basis of his sex, male; and there is no dispute that his termination by SGS constitutes an
adverse job action.

Defendant urges, however, that the evidence shows Plaintiff was not

meeting SGS's legitimate performance expectations. (Def.'s Mem. in Supp. of Summ. J. [103],
hereinafter "Def.'s Mem.," at 11.)

Indeed, the only evidence that Plaintiff was performing

satisfactorily comes from Plaintiff himself. The "self-serving" nature of this evidence does not
render it inadmissible, of course. Hill v. Tangherlini, 724 F.3d 965, 967-68 (7th Cir. 2013). Still,
8

Plaintiff's own assessment of his merit may be insufficient to create a dispute of fact on this
issue. Mills v. First Fed. Sav. & Loan Ass'n, 83 F.3d 833, 843 (7th Cir. 1996). If Katti's poor job
performance by itself was the reason he was selected for layoff, SGS is entitled to prevail.
But in recent decisions, the Seventh Circuit has cautioned against a wooden application
of the indirect method of proof, and it is well recognized that a plaintiff may resist summary
judgment by presenting circumstantial evidence of discriminatory animus. To prevail under this
method, Plaintiff must "construct a convincing mosaic" that would allow the jury to draw an
inference of discrimination. Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1005 (7th
Cir. 2012). Still more recently, the Court of Appeals has "opined that the time has come to
jettison the 'ossified direct/indirect paradigm' in favor of a simple analysis of whether a
reasonable jury could infer prohibited discrimination." Perez v. Thorntons, Inc., 731 F.3d 699,
703 (7th Cir. 2013) (citing Hitchcock v. Angel Corps., Inc., 718 F.3d 733, 737 (7th Cir. 2013);
Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring)). In assessing
the record under this approach, the court reads the evidence in the light most favorable to the
non-moving party, particularly one who, as in this case, is unrepresented.
Viewed through this lens, Katti's sex discrimination claim survives summary judgment, if
barely so. Katti had held only academic positions prior to being employed by SGS (Katti Dep. at
127-28), and the record supports an inference that his job performance issues may have been a
function, at least in part, of lack of training. For example, SGS criticizes Katti for having agreed
to a client's request for expedited performance without warning the client that there would be an
increased fee; but SGS offers no evidence that Katti was aware of the practice of imposing such
a fee. By Katti's account, his direct supervisor, Gayla Velez, was impatient with him from the
very beginning of his employment at SGS. Just days after his arrival, he claims, she announced
that she would not train him. Yet Velez was generous with her time with female subordinates,
Katti asserts. She openly commented that women employees are better at "multi-tasking" than
men, pointing to her own female employees as evidence. Katti had been assured, during his
9

interview, that he would have staff reporting to him following an anticipated reorganization (Katti
Dep. at 131), but Velez chose not to proceed with that plan. Defendant asserts it was common
practice to delay assigning staff to new managers, but Katti notes that months after his
termination, when his female replacement was hired, she had staff reporting to her immediately.
Katti has identified a number of male co-workers who, he claims, agreed that Velez was a
difficult manager, and both male and female co-workers who concluded that she treated female
employees more favorably. Katti notes, too, that a female assistant manager was slated for
layoff from the chemistry department but ultimately spared, despite her own poor performance
record, after Velez intervened in the decision.
Perhaps most significant is the fact that, though Katti was hired for a significant
management position after a lengthy search, he claims to have received no written or oral
feedback or criticism of his work performance.

SGS notes Katti's admission that on one

occasion he had "failed to contemporaneously record his development," (Velez Decl. ¶ 14), but
that single purported admission is insufficient, in the court's view, to eliminate any dispute of fact
on this issue, particularly where SGS itself failed to document the admission or management's
response to it. Velez and Bunnell contemplated, but never prepared, a PIP for Katti. Then, just
two weeks before the discharge was announced, and weeks after the decision had been made,
Katti asked Velez whether he "had anything to worry about," and she assured him he did not. If
job performance really were a genuine and significant concern, Velez could well have spoken
up at this point.
In support of its motion, SGS emphasizes the "same actor" inference.

Specifically,

because Bunnell and Velez were involved in hiring Katti in September 2011, SGS contends,
there is a "strong presumption" that the decision to terminate him just nine months later was not
unlawfully motivated.

(Def.'s Mem. at 9-10 (citing EEOC v. Our Lady of the Resurrection

Medical Center, 77 F.3d 145, 152 (7th Cir. 1996).)

The Court of Appeals has explained,

however, that it is "misleading to suggest" that where the same person both hires and fires an
10

employee, those circumstances "create[] a 'presumption' of nondiscrimination . . . ." Herrnreiter
v. Chi. Hous. Auth., 315 F.3d 742, 747 (7th Cir. 2002). Instead, the "same actor" inference is
"something for the trier of fact to consider." Id. That advice seems particularly appropriate here,
where Velez was but one of four persons who interviewed and hired Katti (Katti Dep., at 128),
but was his sole direct supervisor. In short, the court is not prepared to say that no reasonable
jury could find in favor of Katti on his sex discrimination claim. On that claim alone, the motion
for summary judgment will be denied.
CONCLUSION
Defendant SGS's motion for summary judgment [102] is granted in part and denied in
part. Plaintiff's claim of discrimination on the basis of gender reassignment is not properly
before the court and is unsupported by the evidence. Nor has Plaintiff presented evidence that
creates any disputes of fact concerning his claims of national origin discrimination or retaliation.
Viewing the record in the light most favorable to him, however, the court concludes he has
presented sufficient circumstantial evidence to survive summary judgment on his sex
discrimination claim. With respect to that claim, the motion is denied.
ENTER:

Dated: March 13, 2014

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

11