Ford et al v. The Chicago Mercantile Exchange
Filing
77
MEMORANDUM Opinion and Order: Defendant's Motion for Summary Judgement 44 is granted and all counts of the Complaint are dismissed. Ruling set for 10/28/15 is stricken and no appearance is necessary. Civil case terminated. See Order for further details. Signed by the Honorable James B. Zagel on 10/27/2015. Mailed notice(ep, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EDITH FORD, TONYA BALLARD, and
DAWN FOSTER-TAYLOR,
Plaintiffs,
No. 12 C 9917
Judge James B. Zagel
v.
CHICAGO MERCANTILE EXCHANGE
INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiffs Edith Ford (“Ford”), Tonya Ballard (“Ballard”), and Dawn Foster-Taylor
(“Foster-Taylor”) (collectively “Plaintiffs”) are current and former employees of Defendant
Chicago Mercantile Exchange Inc. (“CME” or “Defendant”). Plaintiffs bring this action under
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Equal Pay Act, 29
U.S.C. § 206(d) (“EPA”).
In Counts I–III, Plaintiffs allege that Defendant, in violation of Title VII, discriminated
against them on the basis of their sex (female) and race (African-American) by failing to train
them, failing to promote them, paying them less than people outside of their protected classes,
and wrongfully terminating Ford. In Count IV, Plaintiffs allege that Defendant violated the EPA
by paying different wages to male and female employees who held substantially the same job
positions on the basis of their sex.
This case is presently before me on Defendant’s motion for summary judgment on all
claims. For the following reasons, Defendant’s motion for summary judgment is granted in its
entirety.
1
FACTS AS ALLEGED
All three Plaintiffs are African-American females. Before their job at the CME,
Plaintiffs each held a variety of clerical and administrative jobs unrelated to trading, derivatives
contracts, and the financial markets.
CME operates a variety of markets for the trading of derivatives contracts worldwide.
Prior to 1992, CME offered all of its global trading through an “open outcry” system, where
floor traders called out, or signaled through complex hand gestures, the key trade information
from the trading pit.
CME originally hired Plaintiffs as Market Reporters to observe and record prices of
live trades on the trading floor: Plaintiff Ford in September 1991, Plaintiff Ballard in December
1991, and Plaintiff Foster-Taylor in September 1990. Plaintiffs were each promoted “several
times rising from a level 1 Market Reporter to a level 4 Market Reporter.”
CME Launches Globex and Transfers Plaintiffs to the GCC
CME first introduced its electronic trading platform, CME Globex (“Globex”), in 1992.
To provide customer service and technical support for Globex users, CME established the
Globex Control Center (“GCC”). GCC staff consists of Analysts, Senior Analysts, and Lead
Analysts, listed in order of increased responsibility and pay.
The use of Globex rapidly expanded. By 2004, the number of electronic Globex trades
exceeded the ones executed on the trading floor. With trades increasingly made through Globex
rather than the trade floor, CME assigned many of its Market Reporters, including Plaintiffs, to
the role of GCC Analyst. Plaintiffs Ballard and Foster-Taylor in 1999 and Plaintiff Ford in April
2000 became GCC Analysts.
2
As GCC Analysts, Plaintiffs answered customer questions about market operations and
moderated cancellation requests for “error trades,” which were trades that, according to the
customer, were mistakenly executed at an incorrect price or quantity. Upon request, CME made
the decision to cancel a trade based on the information gathered by GCC Analysts.
CME provided former Market Reporters with additional training when they became
GCC Analysts, which included learning protocol, testing new trading tools, and listening in on
calls taken by other GCC Analysts or supervisors. Plaintiffs also took classes related to the
industry through an internal Professional Development Department, and in the case of Ballard
and Foster-Taylor, online classes offered by University of Phoenix.
Ballard and Foster-Taylor were both promoted to Senior GCC Analyst in September
2000 and July 2001, respectively. In 2001, Ballard and Foster-Taylor were the highest ranked
GCC employees, both receiving 8 out of 10 performance ratings. Foster-Taylor was
recommended by Paul Millhuff, a Senior GCC Analyst who worked with her in the Eurodollar
pit, and Mark LaPedes, one of her supervisors.
In addition to the duties performed by GCC Analysts, Senior GCC Analysts had the
responsibility of opening, closing, and halting Globex markets. Senior Analysts also had more
responsibility with respect to error trade decisions, where they played a vital function by figuring
out what took place, gathering all the data together, and participating in the internal error trade
committee’s decision regarding whether or not a trade should be canceled.
CME Creates the Pro Desk
As trading migrated from the trading floor to Globex, CME created a new customer
service program that focuses exclusively on high-volume traders, the GCC Pro Desk (“Pro
Desk”). According to CME, it decided to staff the Pro Desk with individuals who had firsthand
3
trading experience because these individuals could provide the highest level of market support to
its premium customer base. Because incumbent GCC employees, largely recruited from Market
Reporters, did not possess the trading experience and market knowledge to work on the Pro
Desk, CME staffed the Pro Desk almost entirely with new hires.
CME announced its decision to hire ex-traders for the new Pro Desk positions before
hiring began in May 2002. Prior to this hiring wave, the existing GCC Analysts and Senior GCC
Analysts included ten non-African-American males, four African-American males, two nonAfrican-American females, and three African-American females (Plaintiffs).
Between November 24, 2003 and September 20, 2004, CME hired seven Caucasian
males as Senior GCC Analysts. 1 These new hires skipped the entry-level position—GCC
Analyst—and started at the Senior level. All seven of these new hires possessed firsthand trading
experience. Specifically,
•
New Hire #1 previously traded currency options and
futures on the CME floor and worked as a managing
partner for an equity firm analyzing and advancing new
methods for effective and profitable equity index futures
trading.
•
New Hire #2 previously worked as a Globex broker and as
a commodity and options trader.
•
New Hire #3 worked as a trader in futures, soft and hard
commodities, foreign exchange, and treasuries.
•
New Hire #4 had 18 years of experience in the financial
industry including experience managing portfolios with
currency, options, and futures.
•
New Hire #5 previously worked as a futures trader on
Globex.
1
These are the dates that are most relevant to this lawsuit because Plaintiffs filed their EEOC complaint on
September 20, 2004 and, as discussed below, I may only consider Plaintiffs’ sex and race employment
discrimination claims with regards to conduct that occurred within 300 days of this unless the conduct is only being
presented as “background evidence.”
4
•
New Hire #6 previously worked as a chief dealer for a
foreign exchange and money market and as a vice president
and senior dealer pricing and funding a Eurodollar offshore
portfolio and introducing derivative instruments to enhance
profitability.
•
New Hire #7 had 20 years of trading experience, 14 of
which he utilized Globex for electronic trading.
Although the new Pro Desk hires had trading experience, Plaintiffs contend that they
lacked customer service experience, noting they had “considerably less experience in electronic
trading support” than existing GCC employees. The new Pro Desk hires were given specialized
training on new software tools and futures and options products. They also were introduced to
the “high level” customers touring the GCC.
Only one incumbent GCC Analyst, an African-American male, was promoted to Senior
GCC Analyst position between November 2003 and September 2004. LaPedes, the same person
who had recommended Foster-Taylor for a promotion to Senior Analyst in 2001, commented at
one point that the new employees hired to fill the Pro Desk positions were “segregated” and
“gerrymandered” from the rest of the GCC.
During this time period, November 24, 2003 through September 20, 2004, CME also
promoted five male Caucasian GCC Senior Analysts to Lead Analyst positions, all of whom had
trading experience/market knowledge and had ratings higher than Ballard and Foster-Taylor.
Neither Ballard nor Foster-Taylor was promoted to Lead Analyst.
Employees on the Pro Desk received higher starting salaries than the rest of the GCC
staff. The Pro Desk starting salary was at least $70,000, which CME claims was necessary to
incentivize traders to take a job in customer service. In comparison, Ford’s salary as a GCC
Analyst around this time was approximately $37,000, Ballard’s salary as Senior Analyst was
5
$50,000, and Foster-Taylor’s salary as Senior GCC Analyst was $43,000. Plaintiffs allege that
new employees were told about a “great secrecy” regarding how their salaries were
“constructed.”
LaPedes told Ford and others that the new employees received higher salaries because
they will “do more” work. One of Ford’s supervisors, Clarence Kelly, however, testified that the
employees at the Pro Desk “weren’t doing anything more difficult or more complex . . . than the
folks who had been at the GCC longer than them.”
Plaintiffs’ Performance Evaluations at the GCC
The quality of Plaintiffs’ work at the GCC is in dispute. For all three Plaintiffs, there is
evidence that Plaintiffs received praise, but also evidence that they made errors on occasion that
their supervisors discussed with them.
With respect to Plaintiff Ford, Kelly testified that Ford took care of “everything that
[the shift] needed to do,” and another one of her supervisors, George Stein, testified that Ford
was a “breeze to work with” and “very competent.” On the other hand, however, Millhuff
repeatedly spoke with Ford about her failure to escalate calls she could not handle on her own,
and in June 2003, gave Ford written discipline for neglect of operational oversight
responsibilities. CME also states that, in December 2004, Ford gave incorrect information to a
customer and, in June 2003, failed to catch Foster-Taylor’s recording error as a “spotter,”
someone who checks that the person performing the daily checklist inputs accurate information.
Ford received a score of 6 out of 10 in her 2003 year-end performance review, a mark in the
lower end of “meets all requirements” category. Millhuff told Ford in this performance review
that she needs to “strive to eliminate mistakes in Operational Oversight roles” and “work to
improve market knowledge and call management skills.” During her 2004 mid-year performance
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review, Millhuff told Ford that she needed to “improve knowledge of and ensure 100% Accuracy
in Market Assistance” and “continue to improve breadth of skills in Operations Oversight.” Ford
again received a 6 out of 10 rating in her 2004 year-end performance review. This review stated
Ford needed “marked improvement in handling Critical and Market Assistance calls” and
technical assistance calls.
After Ballard was promoted to the Senior Analyst position in 2000, Ballard was
nominated for a CME Excellence Award given to employees who go “above and beyond” what
is expected of them. Prompted by customer complaints in 2003 and 2004, however, Millhuff
testified that he observed Ballard’s repeated failure to escalate calls when she did not fully
understand customer requests. In November 2003, Ballard miscommunicated with a customer
and erroneously cancelled a group of orders. During her 2003 mid-year performance review,
Millhuff told Ballard that she needed to obtain an understanding of trading principles as they
apply to electronic trading. He repeated this criticism in Ballard’s 2003 year-end review, in
which he gave her a 6 out of 10 rating. The supervisor who replaced Millhuff gave Ballard the
same rating in her 2004 year-end performance review. Both supervisors pointed out Ballard’s
need to “improve with Market and Technical Assistance Calls” in her 2004 mid-year and yearend performance reviews.
Although Foster-Taylor received praise for being a “great analyst” and a “stellar”
employee who did “excellent work,” CME claims Foster-Taylor failed to properly escalate calls
and erred in her operational oversight responsibilities. Millhuff, in June 2003, gave Foster-Taylor
a warning for entering incorrect information and sending command too early as the shift’s daily
checklist “holder.” Prompted by customer complaints in 2003 and 2004, Millhuff observed
Foster-Taylor’s calls and noted she had failed to escalate calls appropriately.
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Millhuff gave Foster-Taylor, a Senior GCC Analyst, a rating of 6 out of 10 in her 2003
performance review and stated she needed “to comprehend advanced trading principles as
applicable to electronic trading” in order to improve performance. Foster-Taylor received the
same rating in her 2004 performance review with comments stating she needed “marked
improvement with handling of Market Assistance calls” and “Technical and Critical Assistance
calls.”
CME Omits Plaintiffs from Initial GCC Call Routing List
In August 2004, CME implemented another new customer service program—the GCC
Call Routing List. This internal program allowed GCC Analysts, when they were not confident
in their ability to handle a customer request, to transfer calls to a “subject matter expert” and
listen to how the expert handles the call. When the initial GCC Call Routing list was distributed
on August 4, 2004, Plaintiffs were not included as subject matter experts.
The reason for this omission is in dispute. Plaintiffs assert that LaPedes and Millhuff
left them off the list to block them from obtaining advanced GCC positions. Plaintiffs claim they
would “essentially not have a function” within the GCC without appearing on the list. The only
women on the list, according to Plaintiffs, were administrative assistants. When she discovered
that she was not on the list, Ballard promptly sent an email to GCC management noting that the
“women in the department were not included on the list.” Plaintiffs also filed a written complaint
to CME’s Human Resources Department.
According to Defendant, however, Plaintiffs’ omission from the list was nothing more
than a one-time mistake. When Plaintiffs met with LaPedes in mid-August to discuss their
omission, LaPedes told Plaintiffs, “hey ladies, I just want you to know that I’m not
discriminating against you. It’s just — I’ve dropped the ball. We’ll work on it . . . .” A few
8
weeks later, CME circulated a revised list that included Plaintiffs as subject matter experts.
During this meeting, LaPedes blamed another GCC manager, Miles Sczeurek, for the
fact that Plaintiffs were excluded from the call routing list and not identified as experts in any
subject matter. According to Ballard, however, Sczeurek said that it was “utterly ridiculous” that
Plaintiffs were left off of the call routing list and not identified as subject matter experts, that he
was not the person who left them off of the list, that the call routing list was prepared “by
design” and “by plan,” and that any “blame” belonged to LaPedes.
At some point after Plaintiffs filed a complaint with CME’s Human Resources
Department, a group of CME managers went for post-work dinner and drinks at McCormick &
Schmick’s. At dinner, Kelly claims that LaPedes told him that LaPedes was devising a way to
get rid of Plaintiffs by transferring them to other areas of the GCC in a way that would not look
“retaliatory.” According to LaPedes, he never used these words, but instead only discussed
“trying to find better fits for people who were struggling.”
Kelly further testified that, during 2004–05, he was directed by GCC management to
review, evaluate and rate calls from GCC employees, focusing his attention on employees who
were making mistakes. Kelly testified that he thought that listening to some people’s calls more
often than others made him feel as if he was “targeting” certain people by “skewing the data.”
Plaintiffs’ Subsequent Promotions, Transfers, and Terminations
LaPedes offered Ford a new position as a Senior GCC Administrator on May 6, 2005.
Starting June 2005, Ford helped set up individuals and firms with a user ID for Globex. She
received positive performance reviews and regular pay raises with her salary in 2005, eventually
reaching $52,000. Her supervisor promoted her to Lead GCC Administrator in February 2007 at
an increased salary of approximately $60,000. Ford was terminated in 2009, however, after she
9
collected $4,609 from thirty-two coworkers for a White Sox outing then used the money to pay
her personal bills.
In 2007, LaPedes told Ballard to “seek other opportunities” and told her about a lateral
transfer opportunity in CME’s Customer Service for Electronic Trading department as a Senior
Support Specialist. In the new position, which Ballard accepted, she provides technical
assistance to developers by testing the electronic trading platform. Ballard’s salary was increased
to approximately $70,000 in 2012.
Foster-Taylor laterally transferred to Certification Environment Testing (“CERT”) in
2006, while keeping the title Senior GCC Analyst. At CERT, Foster-Taylor took calls from
customers involved in mock trades. In August 2008, Foster-Taylor was promoted to Lead GCC
Analyst in CERT on Millhuff’s recommendation and her salary was increased to approximately
$75,000. In October 2009, Foster-Taylor was transferred to the Enterprise Application Systems
Enterprise department as a Lead Trading Application Support Representative, where she handles
Globex registrations, firm changes, and trade ID cancellations.
LEGAL STANDARD
Summary judgment should be granted when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of triable fact exists only if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of
Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
Once the moving party has set forth the basis for summary judgment, the burden then
10
shifts to the nonmoving party who must go beyond mere allegations and offer specific facts
showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett,
477 U.S. 317, 323–24 (1986). The nonmoving party must offer more than “[c]onclusory
allegations, unsupported by specific facts” in order to establish a genuine issue of material fact.
Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 888 (1990)). A party will be successful in opposing summary judgment only if it
presents “definite, competent evidence to rebut the motion.” EEOC v. Sears, Roebuck & Co., 233
F.3d 432, 437 (7th Cir. 2000).
I consider the record in the light most favorable to the non-moving party, and I draw all
reasonable inferences in the non-movant's favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467,
471 (7th Cir.2002). I will accept the non-moving party's version of any disputed fact, however,
only if it is supported by relevant, admissible evidence. Bombard v. Fort Wayne Newspapers,
Inc., 92 F.3d 560, 562 (7th Cir. 1996).
DISCUSSION
Plaintiffs allege that Defendant violated Title VII by (1) refusing to provide them with
equal training opportunities as those employed at the Pro Desk; (2) failing to promote them to
Senior and/or Lead roles and to staff the Pro Desk; (3) paying them lower wages for performing
same work; and (4) wrongfully terminating Ford. All of Plaintiffs’ Title VII claims stem from
alleged discrimination on the basis of Plaintiffs’ sex (female) and/or race (African-American).
Additionally, Plaintiffs allege that Defendant violated the EPA by paying different wages to male
and female employees who held substantially the same job positions on the basis of their sex.
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I.
Plaintiffs’ Title VII Claims
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge
any individual, or otherwise discriminate against any individual with respect to his
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).
All of Plaintiffs’ Title VII claims ultimately fail here because the evidence does not
show that Plaintiffs were treated any differently than the rest of the GCC staff—a group of
people that was predominantly men and non-African-American—when the Pro Desk was
created.
A.
Limitations on Plaintiffs’ Title VII Claims
Before I can consider the merits of Defendant’s motion for summary judgment, I must
first decide the threshold issue of which facts may be considered for this motion. Defendant
argues that, under Title VII, any discrete acts that occurred either after Plaintiffs’ September 20,
2004 EEOC filing date or more than 300 days prior to it cannot form the basis of Plaintiffs’ Title
VII claims, and I agree.
A person bringing a civil action under Title VII must first file an EEOC charge and
receive a right-to-sue letter. See 42 U.S.C. § 2000e–5(f)(1)(A). An EEOC charge must be filed
within 300 days of the allegedly unlawful employment practice. 42 U.S.C. § 2000e–5(e)(1).
Furthermore, “claims brought in judicial proceedings must be within the scope of the charges
filed with the EEOC[.]” Conner v. Ill. Dep’t of Natural Res., 413 F.3d 675, 680 (7th Cir. 2005).
This prevents “an aggrieved employee” from “seek[ing] judicial relief for different instances of
discrimination" than the ones the employee had originally complained about to the EEOC. Id.
(quoting Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)).
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Yet in alleging various instances of discriminatory conduct not included in the EEOC
charges—conduct that in fact predates September 24, 2003, and is therefore outside the 300-day
limitations period—Plaintiffs’ complaint attempts to do just that. That is improper. See Brown v.
Ill. Dep’t of Natural Res., 499 F.3d 675, 681 (7th Cir. 2007) (showing that the employee is
“time-barred from filing suit under Title VII for any ‘discrete act’ about which he did not file an
EEOC charge within the 300-day EEOC charging deadline.”).
To be sure, a plaintiff can allege claims outside the EEOC charge for instances “like or
reasonably related to the allegations of the EEOC charge and growing out of such allegations.”
Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013) (internal quotation marks,
alterations, and citations omitted). But this principle applies only to timely allegations; otherwise
“[d]iscrete discriminatory acts,” even those “related to acts alleged in timely filed charges,” are
not actionable. Adams v. City of Indianapolis, 742 F.3d 720, 730 (7th Cir. 2014) (internal
quotation marks omitted) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002)); see Morgan, 536 U.S. at 114 (holding that even though the employee alleged “numerous
discriminatory and retaliatory acts” throughout the duration of his employment, “only incidents
that took place within the timely filing period are actionable.”). Plaintiffs are therefore precluded
from alleging instances of discrimination that occurred more than 300 days before the filing of
their EEOC charge.
Plaintiffs argue that the denial of training opportunities and promotions is a continuing
violation here because it occurred throughout their employment. Under the continuing violation
doctrine, a plaintiff may get relief for “a time-barred act by linking it with an act that is within
the limitations period.” Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992). A “continuing
violation” exists when there is “a series of separate violations” where “it would have been
13
unreasonable to require the plaintiff to sue separately on each one.” Id. at 565 (citing Malhotra v.
Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.1989)). The continuing violation exception does not
apply here, however, because Defendant’s alleged discriminatory acts are all discrete
employment decisions, actionable on their own. See Morgan, 536 U.S. 101 at 114 (holding
termination, failure to promote, denial of transfer and refusal to hire are discrete acts). Contrary
to Plaintiffs’ assertions, the continuing violation theory does not apply to discrete acts, even
when they are “reasonably related” to the timely allegations set forth in the administrative
charge. Id. at 114.
Plaintiffs also argue that the 300-day statutory cutoff should be equitably tolled, but this
argument also fails. Equitable tolling is allowed “when despite all due diligence, the plaintiff
cannot obtain the information to determine whether the injury was caused by wrongdoing.”
Dauzvardis v. Midwest Generation, L.L.C., No. 01 C 8549, 2002 WL 31017436, at *4 (N.D. Ill.
Sept. 9, 2002). Because CME announced its intent to hire people with trading experience to staff
the Pro Desk before hiring the first group of ex-traders in 2002, the Plaintiffs had sufficient
notice to file EEOC complaints for their grievances.
As a result, this court may only consider Plaintiffs’ sex and race employment
discrimination claims with regards to actionable conduct that occurred between November 24,
2003 and September 20, 2004. See Morgan, 536 U.S. at 112–13.
B.
Ford’s Termination Claim
Because Plaintiff Ford’s Title VII termination claim is clearly barred by the statute of
limitations requirements discussed above, there is no need to analyze its merits.
Plaintiff Ford did not file an EEOC charge for her 2009 termination from CME within
300 days of her termination. Ford’s termination -- based on theft, dishonesty and misuse of
14
company property -- is also unrelated to the allegations regarding denial of training
opportunities, promotion, and increase in pay based on sex and race, allegations for which she
did file a charge with the EEOC. Ford’s termination claim cannot, therefore, be considered “like
or reasonably related to the allegations of the EEOC charge and growing out of such
allegations.” Lavalais, 734 F.3d at 634 (7th Cir. 2013) (quoting Moore v. Vital Prods., Inc.,
641 F.3d 253, 256–57 (7th Cir. 2011)).
Accordingly, Defendant’s motion for summary judgment with respect to Plaintiff
Ford’s termination claim is granted.
C.
Plaintiffs’ Failure to Train, Failure to Promote, and Disparate Pay Claims
In addition to Plaintiff Ford’s termination claim, all three Plaintiffs allege that CME
refused to provide them with equal opportunities for training and assignments to advanced call
center positions, failed to promote them to higher-level call center positions, and paid them lower
wages for performing the same work. Because these three Title VII claims are factually
intertwined, I will address all three of them together and, if necessary, describe any differences
when they arise.
Plaintiffs bringing Title VII claims can defeat a motion for summary judgment under
the direct or indirect method of proof. Dass v. Chi. Bd. of Educ., 675 F.3d 1060, 1068 (7th Cir.
2012). Under either method, Plaintiffs must first show that they suffered an adverse employment
action. See Chaib v. Ind., 744 F.3d 974, 982 (7th Cir. 2014) (concluding that regardless of
method of proof, the employee is required to show he or she “suffered an adverse employment
action as a result of [his or] her employer's alleged discrimination.”). In other words, “not
everything that makes an employee unhappy is an actionable adverse action.” Nagle v. Vill. of
Calumet Park, 554 F.3d 1106, 1116 (7th Cir. 2009) (quotation marks and citation omitted). Even
15
though an adverse employment action is broadly defined, “an employee must show some
quantitative or qualitative change in the terms or conditions of his employment or some sort of
real harm.” Id. at 1116–17 (quotation marks and citation omitted).
Here, there is no dispute that Plaintiffs’ have properly alleged adverse employment
actions. Plaintiffs’ allegation, for example for “[t]he denial of a raise—even a purely
discretionary one—can be an adverse employment action.” Harper v. Fulton Cnty., Ill., 748 F.3d
761, 767, 2014 WL 1363996, at *4 n.5 (7th Cir. 2014). Similarly, Plaintiffs’ allegation that they
were denied training opportunities that were only given to Pro Desk employees is also an adverse
employment action. See also Patel v. Allstate Ins. Co., 105 F.3d 365, 371 (7th Cir. 1997). As
discussed above, however, we may only consider adverse employment actions that occurred
between November 24, 2003 and September 20, 2004.
1.
Direct Method of Proof
Plaintiffs using the direct method of proof must provide sufficient direct or
circumstantial evidence of a discriminatory motive behind their employer’s action. See Coleman
v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012).
Direct evidence is akin to an explicit admission that an employment decision was
motivated by discrimination; it is rare. See Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587
(7th Cir. 2011). Direct evidence, if believed, proves “the particular fact in question without
reliance upon inference or presumption.” Eiland v. Trinity Hosp., 150 F.3d 747, 751 (7th Cir.
1998) (internal quotation omitted). Direct evidence “can be interpreted as an acknowledgment of
discriminatory intent by the defendant or its agents.” Rudin v. Lincoln Land Cmty. Coll.,
420 F.3d 712, 720 (7th Cir. 2005) (citing Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th
Cir. 1994)). Direct evidence is a “distinct” type of evidence that uniquely reveals “intent to
16
discriminate[, which] is a mental state.” Id.
Plaintiffs have failed to present any direct evidence here. Although some of the
statements made by LaPedes -- specifically, his use of the terms “segregated,” “gerrymandered,”
and “you girls” -- create suspicion, they fall short of being direct evidence. The Pro Desk did in
fact operate as a separate and distinct entity from the rest of the GCC, and addressing the
Plaintiffs as “you girls,” though certainly not the best choice of words, does not conclusively
show that LaPedes was discriminating against them based on sex. Suspicion of racial intent is not
enough; direct evidence requires acknowledgement. See Rudin at 720 (citing Troupe at 736).
Similarly, the statements that LaPedes made to Kelly at their post-work dinner event in
2004 fail as direct evidence because they are ambiguous and unrelated to Plaintiffs’ ability to
join the Pro Desk or otherwise receive a promotion during the relevant time period. Specifically,
there is important context to consider: (1) these statements were made after the relevant
actionable conduct occurred; (2) these statements are not sufficiently related to any of the
actionable conduct that was alleged in the complaint, but instead appear to describe an intent to
retaliate, which was not alleged; and (3) the majority of GCC staff outside of the Pro Desk were
neither African-American nor female. Prior to hiring Pro Desk employees, the GCC Analysts
and Senior GCC Analysts were predominantly men and non-African Americans. With this in
mind, the statements made by LaPedes cannot be considered direct evidence of Title VII
discrimination.
Plaintiffs also attempt to establish their Title VII claims through the direct method of
proof using circumstantial evidence. To survive summary judgment, Plaintiffs’ circumstantial
evidence must cohere to create “a convincing mosaic . . . that would allow a jury to infer
intentional discrimination by the decisionmaker.” Silverman v. Bd. of Educ. of the City of Chi.,
17
637 F.3d 729, 734 (7th Cir. 2011). Circumstantial evidence of discrimination may 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. Darchak v. City of Chi. Bd. of Ed., 580 F.3d 622, 630
(7th Cir. 2009); Rudin, 420 F.3d at 720-21. To be convincing, Plaintiffs’ collection of
circumstantial evidence must “directly point to a discriminatory reason for the employer’s action
and also be directly related to the employment decision.” Whitfield v. Int’l Truck and Engine
Corp., 755 F.3d 438, 443 (7th Cir. 2014).
To support their case, Plaintiffs argue that the statements made by LaPedes that have
been discussed above are ambiguous statements or behavior towards other employees in the
protected group: namely LaPedes’ use of the terms “segregated,” “gerrymandered,” and “you
girls” as well as the statements that LaPedes made to Kelly during their dinner event at
McCormick and Schmick’s. See Darchak, 580 F.3d at 630 (7th Cir. 2009). These comments play
a role in all three of Plaintiffs’ Title VII claims.
Although the terms “segregated” and “gerrymandered” certainly contain racial
connotations, the words themselves are far from being racial slurs. Moreover, they appropriately
describe the structure of the Pro Desk because it was, in fact, a separate unit with its own staff.
Although addressing a group of women as “you girls” is certainly not laudable, it is not
probative of discrimination here, or if it is, its probative value is insignificant. A statement is not
probative of discrimination if it was an “isolated comment” not made contemporaneously with
the adverse employment action or causally related to the decision-making process with respect to
the adverse employment action. See Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 605 (7th Cir.
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2012) (quoting Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1140 (7th Cir. 1997)).
The most suspicious comments that were made by LaPedes occurred during the CME’s
managerial dinner event at McCormick and Schmick’s. As Kelly testified, LaPedes alluded to a
plan to move Plaintiffs into other departments. These comments, as described above, however,
were made after the alleged actionable conduct occurred and seem to describe the intent to
retaliate in the future, something Plaintiffs did not complain of. Even if we infer from LaPedes’
comments that LaPedes told supervisors like Kelly to focus on people who were making errors in
an attempt to target the Plaintiffs specifically, this inference would not save Plaintiffs’ Title VII
claims because there is no evidence in the record that anyone joined the Pro Desk without
possessing trading experience regardless of their performance reviews. The statements made by
LaPedes fail to create “a convincing mosaic,” because, even after we assume that Kelly’s
testimony is true, there is nothing in the record that shows Plaintiffs were treated differently than
any other GCC employee who was not on the Pro Desk.
Plaintiffs also argue that they were denied training opportunities when they were left
off the initial GCC Call Routing List, and they claim that testimony from Sczeurek, namely
where he said the omission was done “by plan,” proves that they were discriminated against. The
problem with this argument, however, is that the GCC Call Routing List was not a program for
training people on the list, but rather a method for training employees not on the list. Plaintiffs
are in effect complaining of losing the opportunity to train someone else rather than losing the
opportunity to train. Furthermore, this omission, inadvertent or not, was remedied within a few
weeks. This event, though certainly a piece of the “mosaic,” is not a particularly persuasive
evidence of discriminatory intent.
It is not surprising that GCC staff members were upset when the Pro Desk was created.
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The Pro Desk paid better, offered additional training, and required something that most of them
did not possess: trading experience. As discussed earlier, however, Plaintiffs were not the only
people who missed out. To the contrary, the majority of people who were disadvantaged by the
creation of the Pro Desk and its hiring requirements were men and non-African-Americans. With
this in mind, the isolated statements made by LaPedes are nothing more than “stray remarks,”
that, while rude and insensitive, are too remote from the employment decision at issue to defeat
summary judgment. See Overly v. KeyBank Nat’l Ass’n, 662 F.3d 856, 865 (7th Cir. 2011).
Plaintiffs need not present evidence in all three categories of circumstantial evidence.
See Diaz, 653 F.3d at 587. For the purposes of this decision, however, it is worth noting that
Plaintiffs have not presented any evidence in either of the two remaining categories of
circumstantial evidence. See Darchak, 580 F.3d at 630.
Plaintiffs here have not presented any evidence, statistical or otherwise, that similarly
situated employees outside of the protected group systematically receive better treatment. During
the relevant time period, Plaintiffs cannot point to one member of the GCC staff who received a
promotion or placement on the Pro Desk and did not possess previous trading experience. One
white male was promoted from the GCC to the Pro Desk; this person, like everyone else on the
Pro Desk, had firsthand experience as a trader. Plaintiffs have also failed to present any evidence
of anyone outside of the Pro Desk who received higher pay.
The record is similarly devoid of any evidence that Defendant’s proffered reason for
denying Plaintiffs a position on the Pro Desk was pretextual. Plaintiffs’ theory of pretext here is
speculative at best. See Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 513 (7th Cir. 2012);
Overly, 662 F.3d at 864 (“[R]eliance on speculation is not enough to get the case to a jury.”).
Courts do not sit as “super-personnel departments” to review the wisdom or correctness of an
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employer’s decision. See Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006); see
also O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 984 (7th Cir. 2001). My concern is
whether Defendant’s stated nondiscriminatory ground for the action of which the Plaintiffs
complain is the true ground, i.e., not a pretext for discrimination. Forrester v. Rauland–Borg
Corp., 453 F.3d 416 (7th Cir. 2006).
According to Defendant, the decision to require trading experience was based on a
desire to increase market experience in its customer service department. Defendant applied this
criterion to 100% of the employees hired to the Pro Desk during the relevant time period.
Furthermore, the fact that the new hires were placed directly into “Senior” position and had a
higher starting salary can and does show CME subjectively and “honestly believed” they needed
to attract new employees with enhanced qualifications. See Radentz v. Marion Cnty., 640 F.3d
754, 757–58 (7th Cir. 2011).
Plaintiffs argue that they were overly scrutinized by the management staff. There’s no
evidence, however, that this plan targeted Plaintiffs specifically. To the contrary, Kelly’s
testimony suggests that he was told to listen in on calls and then spend more time on people who
made errors. This procedure appears to have been equally applied to everyone in the GCC, and
therefore doesn’t show discriminatory intent based on race and/or gender. Furthermore, any
disagreement over Plaintiffs’ performance reviews -- whether they are distorted or not -- has
little bearing on Plaintiffs’ claim because no one was hired on the Pro Desk without trading
experience.
Considering the totality of evidence presented, no reasonable jury could find that
Plaintiffs have presented a “convincing mosaic” of circumstantial evidence here. Plaintiffs have
failed to present sufficient facts that would allow a reasonable jury to determine that their claims
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had any merit, because the record shows that they were treated identically to everyone else at the
GCC who lacked trading experience. Although LaPedes made insensitive comments, his
statements are not enough to defeat a motion for summary judgment here. Accordingly, Plaintiffs
may not proceed with their failure to train, failure to promote, and disparate pay claims under the
direct method of proof.
2.
Indirect Method of Proof
Plaintiffs also attempt to defeat summary judgment by establishing a prima facie case
of discrimination using the indirect, burden-shifting method of proof. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–04 (1973); Cung Hnin v. TOA (USA), LLC, 751 F.3d 499,
504 (7th Cir. 2014).
Under the indirect method, Plaintiffs must first establish four requisite elements:
(1) they belong to a protected class; (2) they met their employer’s legitimate expectations; (3)
they suffered an adverse employment action; and (4) similarly situated employees outside of
their protected class were treated more favorably. Caskey v. Colgate-Palmolive Co., 535 F.3d
585, 591–92 (7th Cir. 2008); Brewer v. Board of Trustees of the University of Ill., 479 F.3d 908,
915 (7th Cir. 2007). After this is accomplished, a presumption of discrimination shifts the burden
of proof to the employer to articulate a legitimate non-discriminatory reason for its action.
Johnson v. Gen. Bd. of Pension & Health Benefits of the United Methodist Church, 733 F.3d
722, 727–28 (7th Cir. 2013). An employer’s legitimate non-discriminatory reason, if one is
articulated, shifts the burden back to the plaintiff to show that the proffered reason is pretextual,
which would then permit an inference that the employer’s real reason was unlawful. Id.; Nichols
v. Southern Ill. Univ.-Edwardsville, 510 F.3d 772, 785 (7th Cir. 2007).
Because Defendant does not contest that Plaintiffs are members of a protected class
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and have suffered adverse employment action, the only issues to evaluate here are whether
Plaintiffs’ performance met CME’s legitimate expectations and whether similarly situated
employees who are not members of a protected class were treated more favorably.
Here, Plaintiffs have clearly failed to establish the “similarly situated” requirement. To
be similarly situated, a comparator must be similarly situated in all material aspects. Greer v. Bd.
of Educ. of City of Chi., Ill., 267 F.3d 723, 728 (7th Cir. 2001); see Lawhead v. Ceridian Corp.,
463 F. Supp. 2d 856, 863 (N.D. Ill. 2006) (finding other job applicants were not similarly
situated when they had several more years of payroll and human resources experience than
plaintiff). As discussed above, Plaintiffs have not presented evidence that any non-protected
GCC employees, who were not on the Pro Desk, received more favorable treatment. Everything
in the record suggests that they were treated exactly the same as Plaintiffs—that is, if they did
not have trading experience, they were unable to work on the Pro Desk. Because Pro Desk
employees are not similarly situated, it is immaterial for the context of a Title VII claim that they
were treated more favorably. Without this requisite element, Plaintiffs cannot establish a prima
facie case of discrimination under the indirect method.
Plaintiffs cannot proceed under either the direct or indirect methods of proof, so I am
granting Defendant’s motion for summary judgment with respect to all of Plaintiffs’ Title VII
claims. Counts I–III of the complaint are therefore dismissed with prejudice.
II.
Plaintiffs’ Equal Pay Act Claim (Count IV)
Plaintiffs allege that they were paid less than male GCC employees in violation of the
Equal Pay Act, which provides that an employer may not discriminate “on the basis of sex by
paying wages to employees . . . at a rate less than the rate at which he pays wages to employees
of the opposite sex for equal work on jobs the performance of which requires equal skill, effort,
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and responsibility.” 29 U.S.C. § 206(d); see also Cullen v. Ind. Univ. Bd. of Trs., 338 F.3d 693,
698–99 (7th Cir. 2003).
The burdens under the federal Equal Pay Act differ from those under Title VII. The
plaintiff does not need to show any discriminatory intent on the part of the employer. Lang v.
Kohl’s Food Stores, Inc., 217 F.3d 919, 922 (7th Cir. 2000); Stopka v. Alliance of Am. Insurers,
141 F.3d 681, 685 (7th Cir. 1998). The plaintiff does not have to make a prima facie case of
discrimination, just of unequal pay. Randall v. Rolls-Royce Corp., 637 F.3d 818, 822 (7th Cir.
2011). By virtue of the statute, an employee’s “only burden is to show a difference in pay for
‘equal work on jobs the performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions.’” King v. Acosta Sales and Marketing,
Inc., 678 F.3d 470, 474 (7th Cir. 2012) (quoting § 206(d)(1)). If the employer then contends that
the difference is explained by something other than gender, it must prove that its explanation
actually accounts for the difference. Id.
Claims under the Equal Pay Act, however, are “forever barred unless commenced
within two years after the cause of action accrued,” unless the claims are based on “willful
violation” which may be commenced within “three years.” 29 U.S.C. § 255(a). Given the
absence of any allegations of willful violation, Plaintiffs’ allegations that CME paid them less
than other male employees for equal work must be for conduct between December 12, 2010 and
December 12, 2012 when the Plaintiffs filed their complaint.
Ford’s EPA claim is clearly time-barred because she was terminated in 2009. Plaintiffs
Ballard and Foster-Taylor’s Equal Pay Act claims fail because neither of them introduced any
evidence of disparate pay for individuals in the departments where they worked from December
2009 through December 2012. Though Plaintiffs Ballard and Foster-Taylor worked outside the
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GCC during the actionable time period, both of them attempt to make their case comparing their
pay to the pay of employees in their former GCC department. This is not “equal work requiring
substantially similar skill, effort, and responsibilities.” Accordingly, I grant Defendant’s motion
for summary judgment on Plaintiffs’ Equal Pay Act claims and dismiss Count IV of the
complaint.
CONCLUSION
For the aforementioned reasons, I grant Defendant’s motion for summary judgment in
its entirety and dismiss all counts of the complaint.
ENTER:
James B. Zagel
United States District Judge
DATE: October 27, 2015
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