Clay v. National Railroad Passenger Corporation et al
CORRECTED MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 1/8/2017: This corrected Memorandum Opinion and Order is issued to correct two scrivener's errors in the first paragraph of page 12. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
NATIONAL RAILROAD PASSENGER )
CORPORATION, et al.,
Case No. 15 C 6287
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Jacqueline Clay filed a seven-count complaint against National Railroad
Passenger Corporation (Amtrak) and three Amtrak managers, Denyse Nelson-Burney,
Keren Rabin, and Donna Peterkin, alleging that her employment with Amtrak was
terminated and she was otherwise discriminated against on improper grounds. Amtrak
denies these allegations and now moves for summary judgment on all of Clay's claims.
Clay is a former Amtrak employee who was based at Amtrak's office in Chicago.
Clay began working at Amtrak in 2000 as an equal employment opportunity (EEO)
manager in Amtrak's dispute resolution office (DRO). She was responsible for
addressing passenger complaints and internal complaints of discrimination. During
Clay's tenure at Amtrak, she worked under three different EEO directors: Thomas
Campbell from 2000-2012, Lisa Coleman from 2012 to mid-2013, and defendant Donna
Peterkin from late 2013 up until Clay's termination in 2014. Throughout Clay's tenure at
Amtrak, her direct supervisor would report to the Department's Manager—a position
defendant Denyse Nelson-Burney held from 2001 to 2015. Defendant Keren Rabin
served as senior associate general counsel in the EEO department from 2012 to 2014.
In 2011, Amtrak dissolved its dispute resolution office. Some of the office's
responsibilities were transferred to the EEO department, resulting in Amtrak abolishing
the position Clay held in the DRO. Amtrak informed the former DRO EEO managers
that they could apply for the position of EEO officer in the EEO department. Clay did
so, and, at the age of 50, she was rehired by Nelson-Burney and Campbell as an EEO
As an EEO officer, Clay continued to work under the direct supervision of
Campbell, who continued to report to Nelson-Burney. Clay's duties as an EEO officer
did not change substantially from her position in the DRO. She was tasked with
addressing internal complaints under the supervision of Campbell and with writing
position statements on behalf of Amtrak to the Equal Employment Opportunity
Commission under the supervision of Nelson-Burney. Campbell explained that these
"were different reports and [had] different standards," describing the EEOC position
statements as complex and having standards that were "a lot more stringent than
internal complaints and passenger complaints." Pl.'s Resp., Ex. 7 (Campbell Dep.) at
In both of her positions, Clay consistently received "meets expectations" ratings
in her annual performance reviews from 2000 to 2012. Defs.' Mot. for Summ. J., Exs. 2,
3. For example, in Clay's 2011 evaluation, Campbell wrote that Clay had "good
analytical skills" and "a good ability to synthesize complex and diverse information."
Defs. Mot. for Summ. J., Ex. 2 at 1-2. He said, however, that although Clay's "research
skills generally enable[d] her to collect relevant data," sometimes she did not "gather all
the information necessary to produce a complete picture." Id. at 2. Nonetheless,
Campbell wrote that Clay "made a tremendous contribution to the success of the EEO
Department." Id. at 11. Similarly, in his 2012 review of Clay, Campbell wrote that Clay
was a "valuable member of the EEO Compliance Unit." Defs.' Mot. for Summ. J., Ex. 3
at 2. He also stated, however, that "Clay need[ed] to take her writing skills to the next
level." Id. (Campbell said this line was inserted by Nelson-Burney and that he did not
agree with the statement). Campbell Dep. 64:4-65:20.
During Clay's tenure at Amtrak, Amtrak and the EEO department experienced
several changes. First, Amtrak faced financial difficulties. A 2010 report by the Office
of Inspector General criticized Amtrak’s five-year plan for failing to include a section on
"Amtrak's strategy for managing its aging workforce." Pl.'s Resp., Ex. 29B at 8.
Amtrak's annual report to Congress for 2012 stated that its "current Financial Plan
indicates that there are risks to Amtrak's financial stability due to factors such as
employee health care costs and volatile fuel prices" and that its "projections for
operating losses increase . . . mainly due to growing expenditures on salaries, wages,
and benefits." Pl.'s Resp., Ex. 29 at 3 ¶ 1, 4 ¶ 1. And in 2013, Amtrak's president
stated that "[t]hrough February of [fiscal year 2014], Amtrak's total payroll (including all
benefits and taxes) is 93.6% of Amtrak's ticket revenue. The company cannot sustain
this level of payroll or overtime going forward . . . ." Pl.'s Resp., Ex. 25.
In the EEO department, there was a concerted effort to increase the quality of its
work product and to reduce its costs. On September 25, 2013, Nelson-Burney
distributed the EEO compliance unit strategic plan, which stated that Amtrak was
"moving towards a competency-based performance system" and set a department goal
of "increasing the quality of position statements." Defs.' Mot. for Summ. J., Ex. 40-F at
4. She explained that the transition may be difficult, because "every aspect of [the EEO
officers'] duties will be inspected, possibly recalibrated and measured." Id. A month
later, Nelson-Burney announced a new procedure in annual performance reviews called
a "calibration," "where department heads [would] meet to look at the suggested [annual]
ratings and have discussions to make sure the ratings [were] fair, biases [were]
controlled and employees [were] rated against each other (taking into account the size
and difficulty of projects, barriers to success etc.)." Pl.'s Resp., Ex. 5. She cautioned
that EEO officers "should be aware that [they] can meet all [their] goals but receive a
poor rating if [they] do not adhere to Amtrak's values." Id. She also informed
employees that their "preliminary rating can change depending on the conversations in
the Calibration meetings." Id. The EEO officers who received "does not meet
expectation" ratings would be placed on a performance improvement plan. Pl.'s Ex. 9
(Rabin Dep.) at 106:5-16.
Following the EEO department's new initiative, Clay's ratings began to decline.
On October 23, 2013, Coleman sent Nelson-Burney an e-mail with her preliminary
evaluations of all EEO officers, including a "meets expectations" rating for Clay. Defs.'
Mot. for Summ. J., Ex. 39-F. Under the "con" section of her evaluation of Clay,
Coleman wrote that Clay "continues to be inconsistent in her writing proficiency . . . .
sometimes does not exhibit a clear understanding of developments in the law . . . [and
is] tardy in submitting assignments." Id. On October 29, 2013, a calibration session
involving Clay was held with Amtrak’s managing deputy general counsel William
Herrmann, human capital business partner Juanita Thorne, Nelson-Burney, and
Coleman. Coleman testified that "when we went in [the calibration session,] [Clay] met
expectations. When we left, she didn't meet expectations." Pl.'s Resp., Ex. 8 (Coleman
Dep.) at 251:1-9. Indeed, Clay's final evaluation stated that she did not meet
expectations overall, despite the fact that she met expectations in eight of the nine
categories listed in the performance evaluation form. The one category in which Clay
did not meet expectations was writing. The final evaluation stated that Clay's "writing
skills continue to fall below appropriate standards in composition, organization and
sophistication" and that her "position papers sometimes require significant revision."
Defs.' Mot. for Summ. J., Ex. 33 at 1.
On November 29, 2013, Nelson-Burney made the decision to place Clay on a
performance improvement plan (PIP), citing the following as areas of concern:
"Inadequate, incomplete and unsatisfactory investigative reports and position
statements" and "[m]issed deadlines without adequate reason." Defs.' Mot. for Summ.
J., Ex. 11 at 1. Coleman testified that she disagreed with the decision to place Clay on
a PIP and told Nelson-Burney that she did not agree that "people who had good
performance evaluations for years should be on a PIP without having some previous . . .
knowledge that their work was [in]sufficient." Coleman Dep. at 241:24-242:7. Coleman
also stated that she had "no reason to think that there was a performance issue"
regarding Clay's work product. Id. at 242:1-7. Likewise, Clay disagreed with the
decision to place her on a PIP. She wrote in a rebuttal that she felt that her "rating [was]
inappropriate," and she asked for revised performance rating. Pl.'s Resp., Ex. 55 at 2.
She wrote that she had "shown [her] commitment to [the EEO department] by adjusting
[her] schedule and even participating in a mandatory conference call while on approved
FMLA" leave. Id. Nonetheless, Clay remained on a PIP.
Clay's PIP stated: "Improvement in your performance must begin immediately . .
. . Failure to demonstrate immediate and sustained improvement . . . will result in
further corrective or disciplinary action, up to and including termination prior to 90 days."
Defs.' Mot. for Summ. J., Ex. 11 at 2. Nelson-Burney also wrote: "In conjunction with
the above PIP, I want to provide you an opportunity to improve your performance and I
am committed to working closely with you. Therefore, we will meet on a biweekly basis
to discuss your progress on meeting acceptable performance standards and to provide
you with feedback." Id. On March 4, 2014, Clay's progress was assessed.
Management concluded that although Clay improved in critical areas such as writing,
she still was not meeting expectations. In deciding whether to take "corrective action"
or extend the PIP, Amtrak senior associate general counsel Rabin determined to place
Clay on an extended three-month PIP. Rabin wrote that she wanted to give Clay
"enough time to demonstrate sufficient improvement." Defs.' Mot. for Summ. J., Ex. 41K.
The EEO department also made changes in response to Amtrak's financial
concerns. Nelson-Burney commented that Amtrak was making a "switch to running [the
company] more like a business instead of like the government . . . ." Pl.'s Resp., Ex. 12
(Nelson-Burney Dep.) at 118:18-119:4. She elaborated that "Amtrak had a reputation of
lax performance standards. And, frankly, the longer you sat in the seat you just got to
sit there for thirty years. And so [Amtrak] wanted to change [to be] able to retain and
attract high level candidates and just keep really good people around and increase the
levels of performance . . . ." Id. at 119:9-17.
Nelson-Burney sent the EEO department an e-mail detailing the department's
goals for fiscal year 2014. She described a new policy that she said was aimed at
mitigating Amtrak's legal exposure. Under this policy, the EEO department was tasked
with creating strategies that would increase "the number of complainants utilizing the
[Amtrak] internal process before moving on to a federal/state agency." Pl.'s Resp., Ex.
53 at 2. Clay testified that Nelson-Burney asked her and other EEO officers to "mingle
with the employees" who filed external complaints in order to "find out what’s going on,"
and that maybe through their interactions the EEO officers could "head off any
complaints." Pl.'s Resp., Ex. 4 (Clay Dep.) at 66:4-13. Clay and two other EEO
officers, Elias Munoz and Erick Mitchell, protested that, in their view, the new policy was
illegal. Clay told EEO management that she "didn’t agree" with the policy because it
"wasn’t for [EEO officers] to try to persuade [employees] to come internally [because it]
was [the individual employee's] personal decision." Id. at 109:22-110:1. Nonetheless,
Clay complied with the policy and engaged with employees when she saw them outside
of the office. Id. at 115:3-10.
Another goal that Nelson-Burney established to reduce Amtrak's costs was to
create an "EEO Compliance webinar series." Defs.' Mot. for Summ. J., Ex. 35 at 2.
EEO management subsequently arranged a webinar on drafting position statements.
Clay could not log into the webinar because EEO management only paid for one login
for one Amtrak location instead of all of its locations, including Chicago where Clay was
based. In response, management decided to download the webinar slides and
distribute them to the off-site EEO officers because otherwise Amtrak "would have to
pay an additional $225.00 per additional site." Rabin Dep., 84:1-14. Management then
told the EEO officers to put their phones on mute so that the webinar's producers would
now know that multiple officers were listening despite the single login purchase. Clay
testified that she complained to coworkers because she believed management's
directions violated copyright laws. Clay participated in the webinar nonetheless.
Also in 2014, the EEO department hired Peterkin for the position of director of
EEO compliance. Peterkin became Clay's direct supervisor. Shortly after Peterkin
joined the department, Clay's time management became an area of concern. On March
17, 2014, Peterkin asked Clay what her work hours and leave plans were. Defs.' Mot.
for Summ. J., Ex. 40-A. Clay responded that beginning in 2010, Amtrak had approved
Clay’s annual requests for intermittent leave under the Family and Medical Leave Act
(FMLA) to care for her husband, with her latest approval extending to the beginning of
2015. Id. A month later, Peterkin sent an e-mail to the EEO officers in which he stated
that if an officer intended to use leave, the officer must provide her with proper notice in
advance and that if an officer takes leave that "[was] not approved ahead of time, [the
officer] may be charged with leave without pay." Defs.' Mot. for Summ. J., Ex. 40-B.
After several complaints that Clay was missing deadlines, Peterkin gave Clay a
verbal warning, documented in a letter dated May 1, 2014. Peterkin stated: "Your
conduct of missing deadlines without speaking up or seeking an extension is not an
isolated matter . . . . Missing deadlines is unacceptable and places the company at risk
. . . . I want to provide you with an opportunity to improve your performance and I am
committed to working closely with you." Defs.' Mot. for Summ. J., Ex. 26.
In Clay's 2014 performance review, Peterkin highlighted Clay's time management
issues in six of the ten areas of review. Under the heading investigative skills, Peterkin
wrote: "[Y]ou do not timely investigate cases and your productivity in terms of
completing investigations is low." Defs.' Mot. for Summ. J., Ex. 40-K at 6. Under case
management skills, Peterkin wrote: "While you routinely update your case status, you
still manage to miss deadliness and offer no explanation in doing so." Id. Under writing
skills, Peterkin wrote, "It is believed that you are making an effort to improve your
investigation reports. However, your reports are still in need of significant improvement.
Additionally, when you are given feedback, you take a significant amount of time to
revise your reports rendering them untimely." Id. Under verbal skills, Peterkin wrote:
"Your verbal skills are good. However, there are concerns with how you respond in
weekly case status meetings when asked about delays in your investigations." Id.
Under good judgment, Peterkin wrote: "You generally display good judgment, except
when it comes to adhering to deadlines. You could further develop by closely
monitoring your deadlines, timely identifying barriers to completing your investigations,
and seeking timely extensions." Id. Finally, under time management, Peterkin wrote:
"Missing deadlines for no known reason and then failing to provide a reasonable
explanation is unacceptable. You were counseled in this area and it is expected that
you will improve." Id.
When Clay was asked during her deposition whether "there [was] ever a point
[when she] told [Peterkin] or anybody else that [she was] having trouble getting work
done because of the responsibilities [she] had caring for [her] husband," she testified
that “[she] told them [she had] a lot on [her] plate." Clay Dep. at 133:16-20.
On May 21, 2014, Rabin and Jeannette Higham, whose title was human capital
business partner, advised Clay that she was being terminated due to poor performance.
Id. at 235:8-9. Rabin, Peterkin, and Nelson-Burney, with approval by Herrmann, made
the decision to terminate Clay's employment. Clay and her fellow EEO officer, Munoz,
were terminated on the same day because Rabin believed it would be "less disruptive"
for the Department. Rabin Dep. at 133:18-22. Erick Mitchell, Lisa Coleman, and Beth
Genshaft all resigned within one year. Id. at 140:13-141:9. Nelson-Burney explained
that “[p]retty much all of the officers and Lisa certainly was unhappy with Ms. Peterkin’s
style.” Nelson-Burney Dep. at 206:9-15. Rabin's 2014 performance review for Peterkin
stated that "[u]nfortunately, the director's methods and approach created significant
friction and tension with several of the EEO staff members from very early on in her
tenure." Rabin Dep. at 236:1-22.
Clay filed this lawsuit alleging that Amtrak retaliated against her for speaking out
against its employment discrimination policy and its conduct in administering the
webinar and that Amtrak also discriminated or retaliated against her on other bases.
Clay asserts claims against Amtrak under 42 U.S.C. § 1983, the Family and Medical
Leave Act, Age Discrimination in Employment Act, Title VII of the Civil Rights Act of
1964, the Illinois Whistleblower Act, and Illinois common law. Amtrak has moved for
summary judgment on all of Clay's claims.
On a motion for summary judgment, the Court "view[s] the record in the light
most favorable to the non-moving party and draw[s] all reasonable inferences in that
party's favor." Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 656 (7th Cir.
2010). Summary judgment is appropriate "if the movant shows 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(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Summary judgment must be granted "[i]f no reasonable jury could find for the
party opposing the motion." Hedberg v. Ind. Bell. Tel. Co., 47 F.3d 928, 931 (7th Cir.
Retaliation for exercise of First Amendment rights
Amtrak argues that Clay may not assert a claim under 42 U.S.C. § 1983 because
Amtrak is not a state entity. There is some authority to the contrary, and also that
Amtrak or its employees are subject to Bivens actions. See Johns v. Amtrak Police
Unit, No. 07 C 530, 2009 WL 691281, at *8 (N.D. Ill. Mar. 16, 2009). The Court need
not address this point, however, because Clay's First Amendment claim fails on the
Clay contends that Amtrak terminated her employment because she spoke out
against the policy of discouraging external complaints and the decision to have
employees without the appropriate credentials participate in a webinar. To make out a
prima facie case of retaliation for exercise of First Amendment rights, "a public
employee must present evidence that: (1) [her] speech was constitutionally protected,
(2) [she] has suffered a deprivation likely to deter free speech, and (3) [her] speech was
at least a motivating factor in the employer's action." Massey v. Johnson, 457 F.3d 711,
716 (7th Cir. 2006). Amtrak contends that Clay cannot prove that her speech was
protected by the First Amendment.
First Amendment protection of speech by a public employee depends on
"whether the employee spoke as a citizen on a matter of public concern," Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006), the determination of which is a question of law.
See Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016). When a public
employee makes a statement pursuant to her official duties, she is not speaking as a
citizen for First Amendment purposes. Garcetti, 547 U.S. at 421. "Determining the
official duties of a public employee requires a practical inquiry into what duties the
employee is expected to perform, and is not limited to the formal job description."
Kubiak, 810 F.3d at 481 (quoting Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir.
Clay's statements did, to be sure, implicate matters involving public concern.
Clay believed that Amtrak's new policy of "mitigating [its] legal exposure" by reducing
external complaints violated discrimination laws. Pl.'s Resp., Ex. 53 at 2. She told
management that she opposed the policy because it "wasn’t for [EEO officers] to try to
persuade [employees] to come internally [because it] was [the individual employee's]
personal decision." Clay Dep. at 109:22-110:1. Second, Clay believed that Amtrak
violated copyright laws in connection with the webinar incident discussed previously.
These maters implicate arguable malfeasance by governmental officials, which is,
generally speaking, a matter of public concern. See, e.g., Kristofek v. Vill. of Orland
Hills, 832 F.3d 785, 794 (7th Cir. 2016). Beyond this, it is rather obvious that a quasigovernment agency's attempt to discourage employees from complaining about
discrimination—if that is what the policy change was—would implicate a matter of public
But Clay's statements, at least those involving the effort to discourage external
EEO complaints, also were within Clay's official duties as an EEO officer. As an EEO
officer, Clay was tasked with executing Amtrak's employment discrimination policies and
assisting employees filing discrimination complaints. As such, any changes Amtrak
made regarding its employment discrimination policies or how EEO officers execute
those policies were necessarily linked to Clay's job duties. Here, of course, we are
talking about Clay's complaint to management about the policy change, not about
carrying out the change. But feedback about changes in job duties is quite obviously
part of the responsibility of most employees, and that is what Clay did here—she
expressed to management her opposition to the policy change.
The Court need not dwell long on Clay's complaints regarding the webinar; she
does not even mention this point in the discussion of her First Amendment claim in her
summary judgment response brief. See Pl.'s Resp. to Defs.' Mot. for Summ. J. at 5-8.
And for good reason: Clay made this complaint only to co-workers, not to management
or anyone outside Amtrak. This episode cannot sustain Clay's First Amendment claim.
For these reasons, Amtrak is entitled to summary judgment on Clay's First
Family and Medical Leave Act claims
The FMLA prohibits an employer from interfering with or retaliating for an
employee's use or attempted use of FMLA leave. 29 U.S.C. §§ 2615(a)(1), (2). The
difference between the two types of claims is that an interference claim only requires
the employee to prove that the employer denied her rights to which she was entitled
under the FMLA, whereas a retaliation claim requires the employee to prove
discriminatory or retaliatory intent. Pagel v. TIN Inc., 695 F.3d 622, 626 (7th Cir. 2012).
Clay makes an (incomplete) argument that Amtrak interfered with her rights
under the FMLA. To establish an interference claim, an employee must prove that: "(1)
she was eligible for the FMLA's protections; (2) her employer was covered by the FMLA;
(3) she was entitled to take leave under the FMLA; (4) she provided sufficient notice of
her intent to take leave; and (5) her employer denied her FMLA benefits to which she
was entitled." Id. at 627. There is no dispute that Clay satisfies the first four
requirements on an FMLA interference claim: she applied for and received intermittent
FMLA leave to care for her spouse, who was suffering from a serious health condition.
For the last requirement, however, it is also undisputed that Amtrak never denied Clay
FMLA benefits. In fact, Amtrak approved every one of Clay's requests for FMLA leave
from 2010 until 2014.
Clay also argues that Peterkin's requirement to provide advance notice before
taking leave interfered with her ability to freely take FMLA leave. The Court disagrees.
Although Peterkin required EEO officers to give her notice before taking leave, she also
permitted officers to give her notice of leave after the fact so long as there was an
adequate explanation for the employee's absence. Peterkin's leave procedures did not
create an additional hurdle that Clay had to mount in order to take leave. In fact, these
procedures conformed to the conditions of Clay's FMLA leave. Under the conditions set
out in her FMLA approval, Clay was permitted to take one day a week off, with a
requirement to give 24 to 48-hour advance notice. See Defs.' Mot. for Summ. J., Ex.
40-A. Likewise, if an emergency developed, Clay's was permitted to take leave without
notice and subsequently inform her direct supervisor as soon as she could. Neither of
these conditions was altered or impaired by Peterkin's leave procedures. Moreover,
there is no evidence that Peterkin used this policy against Clay or to deny Clay her
FMLA leave. Peterkin explained that she simply wanted a procedure in place to
document the whereabouts of her employees.
Clay also asserts that she and another EEO Officer, Munoz, were subjected to
"heightened scrutiny, verbal warnings, and threats." Pl.'s Resp. at 8. Clay offers no
evidence, however, that this resulted in a denial of FMLA leave or deterred her from
taking leave to which she was entitled.
For these reasons, Clay cannot establish an interference claim.
The Court turns next to Clay's FMLA retaliation claim. To sustain an FMLA
retaliation claim, a plaintiff must show that she engaged in a protected activity; her
employer took an adverse employment action against her; and there is a causal
connection between the two. Pagel, 695 F.3d at 626. It is undisputed that Clay meets
the first and second elements of this claim; she took FMLA leave, and Amtrak
terminated her employment. Amtrak argues, however, that Clay cannot establish the
necessary causal connection.
Prior Seventh Circuit precedent called for courts to assess evidence of
discrimination through two separate lenses: "direct" and "indirect" evidence. Recently,
however, the Seventh Circuit jettisoned this somewhat artificial distinction, which at
times required courts to assess the same evidence two different ways. Now, the court
has said, the legal standard "is simply whether the evidence would permit a reasonable
factfinder to conclude that . . . [a] caused the discharge or other adverse employment
action." Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). "Evidence
must be considered as a whole, rather than asking whether any particular piece of
evidence proves the case by itself . . . ." Id.
Clay's primary contention that her taking of FMLA leave led to her termination
involves management's complaints about her time management. Indeed, there is
evidence that Nelson-Burney and Peterkin expressed frustration with Clay's
management of her time. As the standards in the EEO department were made more
rigorous, Nelson-Burney was heard to say that the EEO officer position was "not a 40hour a week job" and that working the minimum hours would cause an EEO officer to
fall behind. Pl.'s Resp., Ex. 3 (Clay Aff.) ¶¶ 87-89. Peterkin was more direct. After
making several informal attempts to get Clay to meet deadlines, she eventually gave
Clay a verbal warning. Peterkin stated that Clay's "conduct of missing deadlines without
speaking up or seeking an extension" was not an isolated matter and needed to be
corrected. Defs.' Mot. for Summ. J., Ex. 26. And in Clay's 2014 performance review,
Peterkin made negative comments about Clay's time management in six of the ten
categories she reviewed. For example, Peterkin wrote that while Clay showed progress
in her writing skills, Clay took a "significant amount of time to revise [her] reports
rendering them untimely." Defs.' Ex. 40-J at 7.
No reasonable jury could find, however, that the complaints about Clay's use of
her time had anything to do with her taking of FMLA leave. Rather, they involved her
apparent inability to get her work done in a timely fashion—at least based on the
enhanced performance standards that the EEO department was attempting to establish.
And Clay's inability to meet deadlines has been an issue throughout her time at Amtrak.
As early as 2012, two years before Clay's termination, Coleman wrote in a performance
evaluation that Clay "continues to be inconsistent in her writing proficiency . . . .
sometimes does not exhibit a clear understanding of developments in the law . . . [and
is] tardy in submitting assignments." Defs.' Mot. for Summ. J., Ex. 39-F (emphasis
added). And to the extent that missing deadlines factored into Amtrak's decision to
terminate Clay's employment, that would not be evidence from which a jury could find
retaliation for taking FMLA leave. First, Clay offers no evidence that her taking of FMLA
leave had anything to do with why she missed deadlines or that this was perceived as
the reason. 1 Furthermore, she has offered no evidence that deadlines were imposed on
her in a disparate manner or that her compliance with deadlines was assessed
differently than for other EEO officers who did not take FMLA leave.
Clay also contends that management only began to complain about her the
quality of her work product after she began to take FMLA leave. But her only actual
evidence in this regard is that some supervisors were satisfied with her work product
even as Nelson-Burney and Peterkin contended her performance was less than
satisfactory. For example, in Campbell's 2012 performance evaluation of Clay, the only
negative comments came from Nelson-Burney, who criticized Clay's writing skills.
Campbell disagreed with the criticism and testified that he did not have any problems
with Clay's writing skills. Campbell Dep. at 64:20-65:9. Coleman also testified that she
disagreed with the decision to place Clay on a PIP. Coleman told Nelson-Burney that
she did not agree that "people who had good performance evaluations for years should
There is evidence that Clay told Nelson-Burney and Peterkin, "I have a lot on my
plate," Clay Dep. at 133:20, which is far from telling them that she was missing
deadlines because of issues related to taking FMLA leave.
be on a PIP without having some previous . . . knowledge that their work was
[in]sufficient." Coleman Dep. at 241:24-242:7. She also stated that she had "no reason
to think that there was a performance issue." Id. at 242:1-7.
In the Court's view, however, Clay's evidence that some supervisors were
satisfied with her work does not give rise to a genuine factual dispute on the issue of a
causal connection between her FMLA leave and her termination. Rather, the evidence
is clear that Clay's termination was performance-based. The evidence establishes
beyond dispute that Amtrak was making a concerted effort to increase the quality of the
work from the EEO department. In 2013, Nelson-Burney informed the entire
department that Amtrak was "moving towards a competency-based performance
system" and that the transition may be difficult because "every aspect of [the EEO
officers'] duties will be inspected, possibly recalibrated and measured." Defs.' Mot. for
Summ. J., Ex. 40-F at 4. Perhaps, as Coleman's cited testimony suggests, Amtrak
moved the goalposts when it came to evaluating the performance of EEO officers. But
there is no evidence suggesting that the tougher standards were applied in a
discriminatory manner based on Clay's taking of FMLA leave or, for that matter, any
other legally prohibited basis. Indeed, the evidence reflects that Clay was given an
opportunity to improve her performance. Nelson-Burney went beyond the PIP, advising
Clay that "I want to provide you an opportunity to improve your performance and I am
committed to working closely with you." Defs.' Mot. for Summ. J., Ex. 11 at 2. And
when Clay's performance did not improve after 90 days on the PIP, she was not
terminated; rather, Rabin extended the PIP by three months, saying that she wanted to
give Clay "enough time to demonstrate sufficient improvement." Defs.' Mot. for Summ.
J., Ex. 41-K.
Ultimately, Clay was terminated only after a year-long opportunity to improve her
work product. Clay may regard it as unfair that, after a long tenure as an EEO officer,
she was terminated arguably not because her performance deteriorated but because it
did not measure up to new, tougher standards imposed by new managers. But the
imposition and enforcement of those standards does not amount to retaliatory or
discriminatory conduct, particularly when Clay has offered no evidence that her
performance was assessed under different standards, or in a different way, from that of
other EEO officers. See, e.g., Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1571
(7th Cir. 1989) ("An employer can set whatever performance standards he wants,
provided they are not a mask for discrimination on forbidden grounds . . . .").
Finally, Clay contends that management mistreated EEO officers who took FMLA
leave. She says that she and Munoz "were the only two Amtrak EEO officers who had
used approved FMLA" and that they were also the only two officers who were put on
PIPs and were subsequently terminated ostensibly for poor performance. Clay Aff. ¶
100. This is the wrong sort of comparison to make in order to establish discriminatory
or retaliatory conduct by an employer. Actually, it is not a comparison at all; Clay does
not identify a similar employee outside her protected class (i.e., an EEO officer who was
otherwise comparable but did not take FMLA leave) who was treated more favorably
than she was. See, e.g., Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012).
Rather, what Clay is offering is more like a form of "pattern" evidence: workers with
similar characteristics were all treated poorly. But two employees is not enough to
make a meaningful pattern. No reasonable jury could draw from the evidence about
only Clay and Munoz an inference that Clay was mistreated in retaliation for taking
FMLA leave. The Court also notes that the evidence reflects that another EEO officer,
Steve Siebert, who took intermittent FMLA around the same time as Clay, was not put
on a PIP or terminated, which further undermines Clay's attempt to show a pattern of
poor treatment. Defs.' Mot. for Summ. J., Ex. 42 (Siebert Decl.) ¶¶ 3, 16.
Age discrimination claim
Clay asserted a claim of age discrimination in her complaint. Amtrak moved for
summary judgment on this claim, arguing that Clay cannot muster either direct or
indirect proof that she was terminated due to her age. Clay did not respond; indeed she
made no mention of her age discrimination claim in her summary judgment response
brief. The Court agrees with Amtrak that Clay has forfeited this claim by failing to
address it. In any event, a contention that Clay's termination was related to her age
would lack merit for the same reasons her FMLA retaliation claim falls short.
Title VII claim
Clay's Title VII claim arises from her contention that Amtrak retaliated against her
for voicing opposition to management's directive to attempt to discourage employees
from filing discrimination complaints with outside federal and state agencies. To
succeed on a Title VII retaliation claim, a plaintiff must establish that she engaged in
activity protected by the statute, her employer took a materially adverse action against
her, and there is a causal connection between these events. See, e.g., Volling v. Kurtz
Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016).
Amtrak's primary argument is that Clay did not engage in protected activity. The
Court is not so sure. A practice of discouraging employees who have a choice of
complaining about discrimination internally or externally from filing outside complaints
might be interpreted by employees as discouraging them from making complaints,
But even if one assumes that Clay engaged in protected activity, she has not
offered evidence from which a reasonable jury could infer a causal connection between
her complaint (either this one or her complaint about the webinar and copyright
infringement) and her termination. First, there is no suspicious timing. Clay says that
the directive from Nelson-Burney came in December 2013-January 2014, and Clay was
not terminated until May 21, 2014. See, e.g., Tomanovich v. City of Indianapolis, 457
F.3d 656, 665 (7th Cir. 2006) (four-month time gap insufficient to establish causal
connection without additional evidence). Second, Clay has not attempted to identify any
comparable employee who did not voice complaints and was treated better than she
was. Third, Clay identifies no other evidence that might suggest retaliatory behavior by
Amtrak, such as shifting justifications for her termination, varying from its usual
procedures, or trumping up a phony basis for the discharge.
Retaliatory discharge claim
Clay also asserts a state-law retaliatory discharge claim. Retaliatory discharge in
Illinois is a "narrow exception" to the general rule that an at-will employee may be
discharged at any time for any reason. Michael v. Precision All. Grp., LLC, 2014 IL
117376, ¶ 28, 21 N.E.3d 1183, 1188. To sustain a claim of retaliatory discharge, an
employee must prove that the employer discharged the employee, in retaliation for the
employee's activities (causation), contrary to a clear mandate of public policy. Id. ¶ 29,
21 N.E.3d at 1188. The Illinois Supreme Court has recognized that an employer
discharging an employee for "whistleblowing" violates the State's public policy. Id. ¶ 30,
21 N.E.3d at 1188.
Clay argues, as she did on her First Amendment and Title VII claims, that Amtrak
discharged her in retaliation for her decision to speak out against Amtrak's allegedly
illegal conduct. As discussed in earlier sections of this decision, no reasonable jury
could find that Amtrak terminated Clay because of her opposition to its employment
discrimination policies and or the webinar issue. Amtrak is entitled to summary
judgment on this claim as well.
Illinois Whistleblower Act claim
Amtrak also seeks summary judgment on Clay's claim under the Illinois
Whistleblower Act, arguing that Clay cannot show that Amtrak terminated her
employment for her refusal to engage in illegal conduct. Section 20 of the IWA prohibits
an employer from retaliating against an employee for refusing to participate in activity
that would result in violation of state or federal law, rule, or regulation. 740 ILCS
174/20. Even without an actual violation of law, "if an employee had reasonable cause
to believe there was a violation of a state or federal law, rule or regulation, and she
disclosed that to a governmental agency, she is protected from any employer retaliation
by the Whistleblower Act." Willms v. OSF Healthcare Sys., 2013 IL App (3d) 120450, ¶
14, 984 N.E.2d 1194, 1196.
Clay did not refuse to participate in Amtrak's allegedly illegal practices. Clay
concedes that she went along and encouraged employees to file internal complaints
instead of external complaints and probed those employees who opted to file an
external complaint. Likewise, Clay admitted to participating in the webinar that involved
the allegedly violation of copyright laws. Moreover, Clay has offered no evidence that
she attempted to actually blow the whistle on Amtrak's actions. She does not contend
that she informed anyone outside her department, let alone outside of Amtrak that she
believed the company was engaged in illegal activity.
For these reasons, no reasonable jury could find in Clay's favor on her claim
under the IWA.
Intentional infliction of emotional distress claim
To sustain an IIED claim, Clay must show that: (1) Amtrak’s conduct toward her
was "extreme and outrageous," (2) Amtrak "intended or recklessly disregarded the
probability that [its] conduct would cause [her] to suffer emotional distress," (3) she
endured "severe or extreme" emotional distress, and (4) Amtrak’s conduct "actually and
proximately" caused her distress. See Ulm v. Mem’l Med. Ctr., 2012 IL App (4th)
110421964, ¶ 39, 964 N.E.2d 632, 641.
Extreme and outrageous behavior is defined as conduct that is "so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency."
Id., ¶ 40, 964 N.E.2d at 642 (internal quotation marks omitted). Clay does not offer
evidence of any conduct that meets this definition. In her summary judgment response
brief, Clay identifies three purportedly extreme and outrageous actions: (1) NelsonBurney’s purported "coercion" of her to participate in dissuading Amtrak employees
from filing external EEO complaints; (2) Peterkin's direction to participate in a webinar in
a way that she believed violated copyright laws; and (3) the termination of her
employment. Clay overstates the first two of these points. She offers no real evidence
of "coercion" as such; rather, she cites Nelson-Burney's direction to EEO officers to "do
what I tell you to do" after officers complained about the effort to discourage external
EEO complaints. Pl.'s Resp. Ex. 6 (Munoz Dep.) at 41:14-42:2. Clay has not identified
"coercive" activity that was directed at her individually. Second, calling Peterkin's
direction to Clay to participate in the webinar "extreme" or "outrageous" would be a
significant stretch, particularly when Clay points to no evidence that Peterkin was aware
that Clay was opposed to participating. Finally, absent unusual circumstances that are
not present here, termination of employment alone does not sustain a claim for
intentional infliction of emotional distress. Illinois courts "are concerned that, if everyday
job stresses resulting from discipline, personality conflicts, job transfers or even
terminations could give rise to a cause of action for intentional infliction of emotional
distress, nearly every employee would have a cause of action." Graham v.
Commonwealth Edison Co., 318 Ill. App. 3d 736, 746, 742 N.E.2d 858, 867 (2000).
Amtrak is entitled to summary judgment on this claim as well.
For the reasons stated above, the Court grants Amtrak's motion for summary
judgment [dkt. no. 55] and directs the Clerk to enter judgment in favor of defendants.
MATTHEW F. KENNELLY
United States District Judge
Date: December 20, 2016
(corrected Jan. 8, 2017)
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