Ballard v. Canadian National Railway Corporation et al

Filing 141

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 1/18/2017. Mailed notice. (mgh, )

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

Jessica Ballard,
Plaintiff,
v.
Illinois Central Railroad
Co., and Pamela Clermont,
individually,
Defendants.

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No. 14 C 3572

Memorandum Opinion and Order
In this action, Jessica Ballard, who is African American,
claims she was terminated from her job as a crew caller for
Illinois Central Railroad (“ICR”) because her supervisor, Pamela
Clermont,

harbored

racial

animus

against

her.

She

sues

her

employer under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a)(1) and Section 1981, 42 U.S.C. § 1981, and
also sues Clermont individually under the latter. Before me is
defendants’ motion for summary judgment, which argues that the
undisputed

record

terminated

for

shows

violating

that

plaintiff

company

policies

was
after

appropriately
progressive

discipline, not for any discriminatory reason. Because I agree
that

the

record

as

a

whole

does

not

reasonably

support

plaintiff’s discrimination claims, I grant defendants’ motion.

I.
The

following

facts

are

undisputed

except

where

noted.

Plaintiff began working for defendant in approximately January
of

2008.

After

performance

being

reasons,1

disqualified

she

bid

on

and

from

two

positions

obtained

a

crew

for

caller

position, which she held until her termination in October of
2012. Crew callers are part of ICR’s Crew Management Center
(“CMC”), and their duties include calling train crews to make
sure that employees are assigned to staff the right trains at
the right times. In addition, crew callers are responsible for
recording when crew members call in sick or otherwise need to
take time off work. In some circumstances, crew callers are also
responsible

for

“tying

up”

train

crews

at

the

end

of

their

shifts (i.e., recording the time at which they went off-duty).
Pursuant

to

their

collective

bargaining

agreement,

crew

callers believed to have violated company rules, practices, or
policies are entitled to a formal investigation, including a
fact-finding

hearing,

prior

to

1

being

disciplined.

They

may,

Plaintiff’s personal work record reflects that she was
disqualified from positions in “train reporting” and “material
handling.” Plaintiff testified that she was not successful in
these positions, explaining that she “didn’t get great training”
in the first, and that the second was “a man’s job” at which she
“didn’t do well.” Ballard Dep. at 87:12, 88:17-18. She does not
dispute defendants’ statement that she was disqualified from
these positions “due to performance reasons.” Pl.’s L.R. 56.1(a)
Resp. at ¶ 11.
2

however, waive investigation and accept responsibility for the
alleged violation.
Plaintiff’s
“Employee

2008

performance

review,

memorialized

Performance

Scorecard,”

contained

positive

in

an

comments

about her work, noting that as a “new arrival...[plaintiff] has
already made contributions” and that she “continues to improve
and

take

advantage

of

her

fellow

callers

to

learn

from

them...the sky’s the limit.” DN 117-2 at 9.2
Sometime in 2009, Human Resources investigated a complaint
against plaintiff in which a coworker alleged that plaintiff
used

“curse

words”

and

called

the

coworker

profane

names.

Plaintiff admitted that she used profanity but asserted that it
“wasn’t in a negative way.” Plaintiff was not disciplined for
the incident. Ballard Dep. at 135:12-24, 136:13-17, DN 117-1 at
18.

Plaintiff’s

performance

as

2009
a

Scorecard,

“skilled

which

railroader”

ranked

(the

her

available

overall
options

being “outstanding railroader,” “superior railroader,” “skilled

2

The manner in which the parties organized their filings does
not lend itself to a unified system of citation (nor, indeed,
does it facilitate locating the cited documents in the record).
Accordingly, for simplicity and ease of reference, I cite where
possible to docket entries and to the page numbers automatically
generated by the CM-ECF system. One notable exception is where
plaintiff cites to evidence I allowed to be filed under seal
pursuant to her motion. See DN 123, 124. Because plaintiff never
actually filed the evidence, however, but provided only a
courtesy copy to my chambers, I cannot cite to it by docket
entry. Defendant has raised no objection to plaintiff’s reliance
on the unfiled evidence for present purposes.
3

railroader,” “needs to improve,” and “new employee”) included a
handwritten comment by supervisor Craig Dettman that “sometimes
in her haste she makes bad decisions, but when she is focused
she handles herself well.” DN 117-2 at 14.
In May of 2010, plaintiff was notified of an investigation
after missing a call while working. Plaintiff admitted that she
missed the call, but explained that the investigation did not
proceed because it was her “first offense.” Ballard Dep. at
139:1, DN 117-1 at 19. Plaintiff was not disciplined for the
incident. Id. at 139:14-15. Then, in December of 2010, plaintiff
was notified of an investigation arising out of her failure to
call a replacement engineer while working as a crew dispatcher.
DN

117-2

at

21.

investigation

Plaintiff

and

received

waived
a

five

her
day

right
deferred

to

a

formal

suspension.3

Ballard Dep. at 147:13-24, DN 117-1 at 21. Plaintiff’s 2010
Performance Scorecard ranked her overall performance as “needs
improvement,”
supervisor

and

that

included

referred

to

handwritten

comments

by

her

her

“experienced

crew

as

an

dispatcher,” and a “well rounded caller,” but noted that she
“often gets distracted which leads to mistakes.” DN 117-2 at 19.

3

The face of the document acknowledging plaintiff’s waiver
explains that a “deferred” suspension means that it “will not be
served unless you are subsequently proven guilty of a violation
of Company rules, policies, procedures, instructions, etc.”
within one year following the deferred suspension.
4

Defendant
supervising

Clermont

plaintiff

joined

the

sometime

CMC

that

in

year.

2011

In

and

began

of

2011,

July

Clermont coached Ballard after she improperly marked an employee
up for work. See Def.’s L.R. 56.1 Stmt. ¶ 23.4 In August of 2011,
Clermont

sent

personal

cell

plaintiff
phone

a

or

letter

of

electronic

caution
device

for
for

using

her

non-company

business while at work, in violation of company policy. DN 117-2
at 32; Pl.’s L.R. 56.1 Resp., Exh. 5 (sealed) at IC-Ballard
002399. On September 15, 2011, supervisor Craig Dettman coached
plaintiff on crew calling procedures after she failed to call a
brakeman for his shift. Def.’s L.R. 56.1 Stmt. ¶ 26. Plaintiff
was

not

disciplined

for

this

error.

Then,

on

approximately

November 18, 2011, plaintiff received a letter of reprimand for
failing to fill a crew assignment properly. Pl.’s L.R. 56.1
Resp., Exh. 5 (sealed) at IC-Ballard 002400. Plaintiff’s 2011
Performance

Scorecard,

Contreras,

ranked

development.”
handwritten

DN

which

her

117-2

comments,

at

was

signed

overall
35.

The

including,

by

performance
review

“you

have

supervisor

Ed

as

“needs

contained

numerous

recently

had

many

errors on the job,” and “try to stay focused and improve your
quality of work.” Id. at 35.

4

Plaintiff purports to dispute defendant’s “characterization of
the alleged incident,” but the evidence supports defendants’
characterization, and plaintiff points to no contrary evidence.
5

On

May

16,

2012,

and

June

5,

2012,

Clermont

notified

plaintiff of investigations to determine her responsibility, if
any, for using a personal cell phone while working, and for
sleeping while on duty. DN 117-2 at 44, 47. Plaintiff waived
investigation

of

both

incidents.

She

received

a

five

day

deferred suspension for the former violation and served a ten
day actual suspension for the latter. See Ballard Dep. at 190196 and Exh. 23; Pl.’s L.R. 56.1 Resp., Exh. 5 (sealed) at ICBallard 002399. Then, on October 15, 2012, plaintiff received
three notices of investigation arising out of three separate
incidents

that

occurred

in

September

and

October

of

2012.

Evidentiary hearings were held in each of these investigations
on October 23, 2012.5
One of the investigations concerned two occasions on which
plaintiff allegedly “tied up” crew members (i.e., marked them
off-duty at the end of their shifts) in violation of company
policies and directives. At the hearing, at which both plaintiff
and

Clermont

performed
conceded

the
that

testified,

plaintiff

tie-ups

the

she

was

in

familiar

acknowledged

manner
with,

that

she

alleged,

and

further

but

not

follow,

did

instructions Clermont circulated in April of 2012. Indeed, the

5

Plaintiff states, and defendants do not dispute, that she was
not afforded the opportunity to waive these investigations. But
plaintiff does not suggest any link between her race and the
decision to require investigation of these incidents.
6

record reflects that on April 24, 2012, Clermont sent two emails
to

crew

callers

instructing

them

that

crew

members

were

generally required to tie themselves up using the company’s Crew
Assignment and Timekeeping System (“CATS”), subject to limited
exceptions, such as when the crew was in a remote area without
access to a CATS terminal, or when the time required for crew
members to reach a CATS terminal would cause them to exceed
their maximum allowable work hours. In those circumstances, crew
callers could perform a “quick-tie” on the crew members’ behalf,
and were to follow a specific procedure when doing so. Tr. of
10/23/12

Hr’g.

at

58:20-61:17,

DN

117-2

at

69-70.

Plaintiff

admitted at the administrative hearing that she did not follow
the

specified

procedure

but

instead

followed

her

“normal

routine” that she was “used to doing” because “nobody had made a
big fuss or a big deal about it.” Tr. of 10/23/12 Hr’g. at 61:5,
10-11, DN 117-2 at 70.
Hearings were also held on additional charges that on one
occasion, plaintiff improperly scheduled a crew member to work
before he was medically cleared, and on another, she improperly
scheduled

a

examination

crew
of

member

the

for

duty

evidence

on

his

presented

rest

on

day.

these

Detailed

charges

is

unnecessary for present purposes. It suffices to note plaintiff
and

one

of

her

immediate

reported

to

Clermont),

supervisors,

both

provided
7

Jessica
testimony,

Welch

(who

and

that

plaintiff

did

not

deny

the

conduct

attributed

to

her.

With

respect to the first charge, plaintiff acknowledged her failure
to follow company procedures, but explained why she believed her
conduct

to

be

appropriate

under

the

circumstances.

Tr.

of

10/23/12 Hr’g. at 49-52, DN 117-2 at 168. With respect to the
second, she admitted to leaving a conductor on the work schedule
after he called in to say he could not work because it was his
rest

day,

but

explained

that

she

thought

the

conductor

was

“joking.”6
Austin

McConnell,

who

was

then

Superintendent

of

ICR’s

Regional Operations Center, states in his declaration that he
reviewed the transcripts of the three investigation hearings and
determined,

in

consultation

with

ICR’s

general

manager,

Hunt

Cary, that termination was the appropriate level of discipline
in

view

of

plaintiff’s

disciplinary

history.

McConnell

Decl.

¶ 4, DN 117-3 at 113. McConnell further states that he did not
discuss

plaintiff’s

termination

with

Clermont.

Id.

at

¶ 5.

Plaintiff disputes the latter statement, insisting that Clermont
was involved in the decision to terminate her. According to

6

In her L.R. 56.1 Response, plaintiff states that a “programming
error” caused ICR’s computer to contact the conductor to
indicate he was working on the day in question. During the
investigation, however, plaintiff did not attribute her mistake
to a programming error, but instead acknowledged that she
“should have noticed” a code that on her computer screen
indicating the conductor was not available to work. Tr. of
10/23/12 Hr’g. at 39-40, DN 117-2 at 124.
8

plaintiff, Clermont often threatened to fire her and once said
she could “hold an investigation and...have you fired like I had
those two other black girls fired.” Ballard Dep. at 115:6-10, DN
117-1 at 13.
II.
Summary judgment is appropriate if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A material fact is genuinely in dispute when “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S.

242,

248

(1986).

I

resolve

all

factual

disputes

in

plaintiff’s favor and give her “the benefit of all reasonable
inferences

that

may

be

drawn

from

the

record.”

Coleman

v.

Donahoe, 667 F.3d 835, 842 (7th Cir. 2012). Plaintiff is not
entitled,

however,

to

the

benefit

of

inferences

that

are

supported only by speculation or conjecture. Boss v. Castro, 816
F.3d 910 (7th Cir. 2016).
In Loyd v. Phillips Bros., Inc., 25 F.3d 518 (7th Cir.
1994), the Seventh Circuit observed that “[w]hile Title VII of
the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., is rather
straight-forward
gloss,

over

accommodate

on

twenty

its

own

years

difficult

terms...a

deep,

matters

of
9

has

rather

thick

developed,

proof

in

in

diverse

judicial
part

to

factual

settings.” Id. at 521. That “gloss” continued to deepen over the
next two decades, even as judges expressed frustration with “the
snarls

and

knots

that

the

current

methodologies

used

in

discrimination cases of all kinds have inflicted on courts and
litigants alike.” Coleman v. Donahoe, 667 F.3d 835, 863 (7th
Cir. 2012) (concurring opinion joined by entire panel). In a
recent effort to cut through the morass of “disparate methods”
and “elusive mosaics,” the Seventh Circuit announced that “[t]he
time has come to jettison these diversions and refocus analysis
on the substantive legal issue.” Ortiz v. Werner Enterprises,
Inc., 834 F.3d 760, 764 (7th Cir. 2016). That issue, the court
held,

is

factfinder

“whether
to

the

conclude

evidence
that

the

would

permit

plaintiff’s

a

reasonable

race,

ethnicity,

sex, religion, or other proscribed factor caused the discharge
or

other

adverse

employment

action.”

Id.

at

165.

The

court

emphasized that the evidence “must be considered as a whole” and
that “[e]vidence is evidence,” irrespective of whether it may be
labeled “direct” or “indirect.” Id. With these principles in
mind, I turn to the parties’ arguments.
In

defendants’

view,

the

undisputed

facts

refute

plaintiff’s theory that Clermont’s racial animus was the reason
for her termination. First, they argue that even assuming the
truth of plaintiff’s testimony that Clermont told her she would
fire her as she had “those two other black girls,” and further
10

assuming that this comment reflects racial animus, as opposed to
merely

a

race-specific

description

of

individuals

who

had

recently been terminated, there is no evidence to suggest that
Clermont’s

remark

was

related

to

the

decision

to

terminate

plaintiff. Indeed, plaintiff does not dispute that McConnell and
Cary,

not

Clermont,

were

the

ultimate

decision

makers

with

respect to her termination, nor does she assert that either of
these individuals harbored racial animus against her. Instead,
her theory is that Clermont set her up for termination—or, in
her words, “created pretext to terminate” her—by issuing bogus
investigations that were either factually unfounded or based on
conduct

that

was

tolerated

by

white

employees.

But

even

interpreting the facts in the light most favorable to plaintiff,
the record simply does not support this theory.
Having

waived

formal

investigation

and

admitted

responsibility for three infractions between October 2011 and
May 2012—all of which appear on the personal work record she
concedes

McConnell

reviewed

in

deciding

to

terminate

her

employment—plaintiff cannot now be heard to complain that these
investigations

were

factually

unfounded.

investigations

that

proceeded

to

As

for

evidentiary

the

three

hearings,

the

record reflects that plaintiff admitted the factual basis for
these

violations

efforts

to

show

too,

and

either

that
that
11

her
her

defense

focused

departure

from

on

her

ICR’s

instructions was justified, or that it did not result in any
actual harm to defendant. But “federal courts are not a superpersonnel

department

that

second-guesses

facially

legitimate

employer policies. It is not the role of the court to determine
whether

an

employer’s

expectations

were

fair,

prudent,

or

reasonable.” Boss, 816 F.3d at 917 (internal citation omitted).
Nor

does

plaintiff’s

insistence

that

the

investigation

proceedings were “flawed,” or that Clermont “concealed facts”
during the hearings entitle her to a trial on her discrimination
claims. A review of the transcript establishes that plaintiff—
who

was

represented

opportunity

to

by

question

a

union

Clermont

representative—had
and

to

present

ample

her

own

arguments and evidence. Even if, as plaintiff claims, Clermont
presented an “altered” email, she was free to challenge the
authenticity of the email at the hearing. There simply is no
factual basis in the record for concluding that the proceedings
themselves were flawed, much less that any flaws were designed
to cover up discrimination.
As

for

disciplined
crew

plaintiff’s
for

callers

failing

regarding

to

argument
follow

tie-ups

that

she

Clermont’s

because

the

was

unfairly

instructions

instructions

to

were

inconsistent or confusing, courts “cannot interfere because an
employer’s decision is unwise or unfair.” Widmar v. Sun Chemical
Corp., 772 F3d 457, 464 (7th Cir 2014). At all events, I tend to
12

agree with defendants that if plaintiff found the instructions
confusing, it behooved her to seek guidance from her managers
(as indeed Clermont explicitly directed crew callers to do),
rather

than

simply

ignore

them

and

go

on

with

her

“normal

routine.”
As

for

plaintiff’s

comparator

evidence,

her

scattershot

catalog of employees and infractions does not raise a reasonable
inference that plaintiff was disciplined more harshly than any
other employee based on her race. While plaintiff is correct
that “the similarly-situated inquiry is flexible, common-sense,
and factual,” it nevertheless requires “sufficient commonalities
on the key variables between the plaintiff and the would-be
comparator” to raise a reasonable inference of discrimination
when viewed in light of the evidence as a whole. Coleman v.
Donahoe,

667

F.3d

835,

841

(7th

Cir.

2012).

As

illustrated

below, plaintiff’s comparator evidence falls woefully short.
In

paragraphs

8-10

and

12-22

of

her

L.R.

56.1(b)(3)(C)

statements, plaintiff describes various mistakes and misconduct
allegedly

committed

by

Caucasian

employees,

which

she

claims

illustrate their more lenient treatment. But to the extent these
paragraphs

provide

any

meaningful

comparison,

of
what

the

“key

they

variables”

show

is

that

necessary

for

plaintiff

was

treated just as favorably as, if not more favorably than, her
comparators. For example, in paragraph 19, plaintiff states that
13

ICR “did not terminate a Caucasian employee even though she made
numerous errors as a crew caller,” and instead gave the employee
a

different

asserts

position

that

the

within

employee’s

the

company.

personal

Plaintiff

work

record

further

“does

not

reflect her mistakes; but does indicate she was disqualified
from her position.” Pl.’s L.R. 56.1 Stmt. ¶ 19, DN 121 at 9-10.
See

also

id.

at

¶ 20

(describing

similar

infractions

and

discipline). The very same can be said of plaintiff, however,
who, by her own admission, was disqualified from her first two
positions
several

for

failing

errors

as

a

to

crew

perform
caller

adequately,
that

do

not

and

who

appear

made

on

her

personal work record and for which she received no discipline.
In

another

paragraph,

plaintiff

describes

a

Caucasian

employee who failed to fill a conductor position in November of
2011 and received a letter of reprimand; failed to go to work in
August of 2012 and received a deferred suspension; failed to
contact an engineer in November of 2012 and received a deferred
suspension; and failed to contact a pilot and a foreman in March
of 2013 and was disqualified as a crew caller. Id. at ¶ 17. By
comparison, plaintiff—who received no discipline for her “first
offense” of failing to call a crew member in May of 2010—also
received a deferred suspension for a subsequent failure to call
an engineer, and also received a letter of reprimand in November
of 2011 for failing to fill a crew assignment. Similarly to her
14

comparator,

plaintiff

received

a

deferred

suspension

for

a

subsequent infraction, and, as noted above, had already been
disqualified

from

reasons.

short,

In

her

first

nothing

two

positions

about

this

for

performance

comparison

reasonably

suggests that plaintiff was treated less favorably because of
her race.
Other

putative

comparators

are

farther

afield,

and

plaintiff’s summary account of their discipline does not lend
itself to meaningful comparison with her own. For example, in
paragraphs
terminate

10
a

and

12,

Caucasian

plaintiff
employee

asserts

that

that

failed

a

ICR
drug

“did
test”

not
in

November of 2013 and did not investigate an employee who gave
out

a

personal

cell

phone

number

to

another

employee

in

September of 2011. Absent from plaintiff’s factual statements,
however,

are

“key

variables”

such

as

who

supervised

these

individuals, who made the decisions about their discipline, and
whether

they

had

any

past

disciplinary

history.

Indeed,

plaintiff does not even identify the second comparator’s race.
However “flexible” the similarly-situated analysis may be, it
requires

“enough

common

features

between

the

individuals

to

allow a meaningful comparison.” Coleman, 667 F.3d 835. As the
foregoing examples illustrate, plaintiff’s comparator evidence
does not meet this test.

15

Nor

does

plaintiff’s

half-hearted

invocation

of

quasi-

statistical evidence suggest a discriminatory motive behind her
termination. Plaintiff states that between 2008 and 2014, ICR
noticed an investigation and subjected to discipline fifty CMC
employees,

of

whom

twenty-five

were

African-American,

twenty

were Caucasian, and five were Hispanic or Latino. Pl.’s L.R.
56.1 Stmt at ¶ 4, DN 121 at 3.7 She further observes that of the
six employees who were terminated during that time period, five
were

African-American

while

only

one

was

Caucasian.

Id.

Plaintiff also asserts that during Clermont’s tenure as Regional
Manager for the Crew Management Division from November 2011 to
April 2013, nineteen notices of investigation were issued to
seven

African-American

employees,

while

ten

notices

of

investigation were issued to five Caucasian employees. Id. at
¶ 5.

Finally,

she

states

that

all

four

employees

terminated

while Clermont was Regional Manager were African-American. Id.
Plaintiff

evidently

believes

that

the

foregoing

figures

speak for themselves, as her analysis goes no further than the
numbers. But statistics are not meaningful in a vacuum, and
plaintiff makes no effort to explain how the numbers she cites
suggest that defendant’s stated reason for her termination was

7

Defendants state that the total number of employees disciplined
was fifty-one, of whom twenty-one were Caucasian. The evidence
appears to support defendants’ position, see DN 121-6 at 4-6,
but the difference is immaterial.
16

pretextual. To be sure, statistical evidence may be powerful in
cases alleging a widespread pattern or practice of employment
discrimination. See Int’l Broth. of Teamsters v. U.S., 431 U.S.
324, 339 (1977). But even in such cases—of which this decidedly
is not one8—the usefulness of statistics “depends on all of the
surrounding facts and circumstances.” Id. at 340. In this case,
with no evidence at all about the circumstances under which the
employees

referenced

in

paragraphs

4

and

5

of

plaintiff’s

factual statements were disciplined, the statistics she provides
are meaningless.
Finally, plaintiff’s suggestion that her termination must
have been due to Clermont’s racial animus because plaintiff’s
disciplinary record was clear prior to Clermont’s arrival is
contrary to the record. Indeed, plaintiff does not dispute that
in May of 2010, she was notified of an investigation for missing
a call, and that in December of 2010, she received a deferred
suspension for failing to call a replacement engineer. It is
true

that

the

investigation

did

not

proceed,

and

that

the

suspension was never served, but these facts support defendants’
position, not plaintiff’s because they illustrate that, like her

8

For at least this reason, I agree with defendants that
plaintiff’s evidence that another employee has filed a law suit
in which he claims to have seen “racial slurs written on
bathroom walls, written on bathroom stalls, written on engines”—
none of which plaintiff claims to have seen—does not support her
claim that she was terminated because of her race.
17

colleagues,
Indeed,

plaintiff

even

continued

after

to

benefitted

Clermont

receive

from

became

coaching

progressive

her

and

discipline.

supervisor,

other

plaintiff

non-disciplinary

employment measures before ultimately being disciplined for her
mistakes. See Def.’s L.R. 56.1 Stmt. ¶¶ 23-24, 26-29. On this
record, no reasonable juror could conclude that plaintiff would
have

kept

her

job

if

she

had

been

a

different

race

“and

everything else had remained the same.” Ortiz, 834 F.3d at 764.
In the end, plaintiff’s evidence of discrimination boils
down to Clermont’s remark that she would investigate and fire
plaintiff like she did “those two other black girls.”9 But that
stray

comment

is

too

thin

a

reed

to

support

the

weight

of

plaintiff’s claim. The facts here cannot reasonably be compared
to those in either Hasan v. Foley & Lardner LLP, 552 F.3d 520
(7th Cir. 2008), or Ayissi-Etoh v. Fannie Mae, 712 F.3d 572
(D.C. Cir. 2013), which plaintiff cites in her opposition. In
Hasan, a Muslim attorney brought a discrimination claim after he
was

terminated

by

his

law

firm.

The

evidence

the

plaintiff

presented at summary judgment included testimony that a year
before his termination, one of the firm’s partners had said of
Muslims, “those people don’t belong here...they should kick them

9

Plaintiff also asserts that on another occasion, Clermont
referred to her as a “wing nut.” Plaintiff does not explain, nor
is it obvious from anything else before me, how this comment
reflects racial animus.
18

all out.” Hasan, 552 F.3d at 523. That partner was among those
who

participated

in

the

meeting

at

which

the

plaintiff’s

termination was discussed. In addition, the plaintiff testified
that after that meeting, another partner told him, “too bad that
[the first partner] and those guys took out their religious
dispute in Israel on you and had you fired.” Id. at 524. Unlike
in

this

case,

the

evidence

in

Hasan

suggested

a

clear

link

between the decision to terminate the plaintiff and religious
animus on the part of the decision makers.
In Ayissi-Etoh, the evidence suggested an even clearer link
between the plaintiff’s race and an adverse employment decision.
There, the plaintiff was promoted by his employer, but he was
denied a salary increase and claimed that his manager told him,
“[f]or a young black man smart like you, we are happy to have
your expertise; I think I’m already paying you a lot of money.”
Ayissi-Etoh, 712 F.3d at 574. These facts call to mind “the
fabled employer who admits to firing an employee because of his
race,” which the Seventh Circuit invoked in Ortiz to illustrate
that

“some

cases

permit

easy

inferences.”

834

F.3d

at

765.

Indeed, the Ayissi-Etoh court reversed summary judgment after
observing that the individual apparently responsible for making
decisions about the plaintiff’s salary had “explicitly denied
him a raise because of his race.” 712 F.3d at 576.

19

c
st, the i
individua
als resp
ponsible for
In this case, by contras
the de
ecision to termin
t
nate plai
intiff we
ere McConnell an Cary, who
nd
plaintiff does not claim har
s
rbored r
racial a
animus ag
gainst h
her.
Althou
ugh plain
ntiff ins
sists tha Clermo
at
ont was responsi
ible for her
termin
nation,

there

is
i

no

evidence,
e
,

other
r

than

plaintif
ff’s

speculation, that Cler
t
rmont’s alleged b
a
bias play
yed any role in the
termin
nation de
ecision.
III.
For the foregoing reason
F
ns, defe ndants’ motion for summ
mary
judgment is gr
ranted.

ENT
TER ORDER
R:

E
Elaine E. Bucklo
.
United States D
District Judge
Dated: January 18, 201
y
17

20