Khan v. First American Title Insurance Company et al
Filing
38
MEMORANDUM Opinion and Order. Defendant First American's Motion for Summary Judgment (Dkt. 24) is granted. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 9/11/2018:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SARAH KHAN,
Plaintiff,
v.
Case No. 16 C 9493
FIRST AMERICAN TITLE COMPANY,
et al.,
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff
Sarah
Khan
(“Khan”)
brings
a
two-count
Complaint,
alleging that Defendant First American Title Company (“First American”)
violated Title VII by discriminating against her on account of her
national origin and religion.
incidents:
her
demotion;
The heart of Khan’s claims owes to four
two
refusals
to
reinstate
her
to
her
previously-held position; and a partial refusal to approve personal time
off.
First American moves for summary judgment (Dkt. 24) on all of
Khan’s claims and, for the reasons stated herein, the Motion is granted.
I.
BACKGROUND
Sarah Khan was born in India and is a practicing Muslim.
Resp. to Defs.’ Facts (“SOF Resp.”) ¶ 2, Dkt. 30.)
In December 2012,
First American hired Khan as an escrow officer (“EO”).
that
role,
Khan
reported
to
Field
Manager
(Pl.’s
(Id. ¶ 5.)
Tenishia
(“Valentine”), who is Christian and African-American.
In
Valentine
(Id.)
Khan
continued working in that role until, in the Fall of 2013, Valentine’s
supervisor Kelli Winsky (“Winsky”) (who, like Valentine, is neither
Muslim nor from India) decided to make staffing cuts in the so-called
“mobile closing unit,” where Khan worked.
Facts (“SOF Reply”) ¶ 1, Dkt. 35.)
(Defs.’ Reply to Pl.’s Add’l
Winsky and Valentine conferred over
which escrow officer should be removed, and Khan was selected.
(Id.
¶¶ 5-7.)
that
Valentine
testified
at
her
deposition
that
during
deliberative process, she never considered removing anyone but Khan.
(Id.)
Having made her decision, Valentine told Khan in November 2013
that she could either accept a demotion to escrow assistant or be
terminated.
Khan chose the demotion.
(Id. ¶ 9; SOF Resp. ¶ 23.)
In
that lesser role, Khan lost her eligibility for thousands of dollars in
bonuses.
(SOF Reply ¶ 10.)
She was also moved to a different part of
the building and, it seems from context, moved out of the mobile closing
unit.
(See Ex. 1 to Defs.’ Facts, Khan Dep. Tr. 100:3-22, Dkt. 25-1.)
Valentine testified that at the time she demoted Khan, she decided never
to reinstate Khan to the EO position.
(SOF Reply ¶¶ 22, 26.)
Despite Khan’s demotion, First American’s internal systems were
not updated to reflect Khan’s new role for over two years, until April
28, 2016.
(Id. ¶ 20.)
Khan contends this error was nefarious, though
she never explains specifically how.
email
in
which
First
American’s
Instead, Khan points to a 2014
Human
Valentine about Khan’s quarterly review.
Resources
Department
asked
(See Ex. C to Pl.’s Facts, T.
Valentine & K. Winsky Email Chain, Dkt. 31-3.)
Valentine forwarded the
HR inquiry to Winsky, adding, “I’m not sure how to respond . . . . I
don’t want to mention anything about her not being in [the mobile closing
unit].”
(Id.; SOF Reply ¶ 15, 20.)
For her part, Winsky contends she
does not know why Valentine would have wanted to keep this information
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from HR.
(SOF Reply ¶ 17.)
Though this email seems fishy, Khan fails
to explain how the cahoots it allegedly reveals actually affected her
in any way.
To any extent, First American never re-elevated Khan to EO, despite
such positions twice becoming available.
in November 2015.
The first opening manifested
Khan did not apply for this position, and First
American awarded it instead to Kendra Glossett (“Glossett”), who is
African-American.
(SOF Resp. ¶¶ 34, 37.)
Winsky and Valentine both
testified they do not know what religion, if any, Glossett practices.
(Id. ¶ 42.) The second EO position became available in May 2016, shortly
after First American’s system was at last updated to reflect Khan’s
demotion.
Khan did not apply for this position either.
(Id. ¶ 33.)
First American filled that position with a Caucasian woman named Apryl
Christensen.
Her religion and place of national origin are disputed.
(SOF Reply ¶ 26.)
One other set of events is relevant.
In January 2016, Khan emailed
First American Customer Care Manager Audrey Huggins, asking for fourteen
days off in June and July 2016 to perform a religious pilgrimage to
Mecca.
(SOF Resp. ¶¶ 54-55.)
Huggins referred the question to HR, who
confirmed that if Khan did not take any personal time off before her
proposed trip, she would have accumulated about twelve days of PTO.
HR
also explained to Huggins that even though Khan requested the time for
religious purposes, Huggins was not required to grant the full fourteen
days.
HR concluded that “I think the two weeks, or whatever PTO she has
at the time, would be a good compromise.”
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(Id. ¶¶ 57-58.)
Huggins
thereafter approved Khan for twelve of the requested fourteen days off.
(Id. ¶ 59.)
After
the
discrimination
events
with
described
the
EEOC
above,
on
June
Khan
26,
filed
2016,
a
charge
of
complaining
of
discrimination on account of her race, color, religion, and national
origin.
(Id. ¶ 64.)
She received her Notice of Right to Sue on or
about July 9, 2016, and thereafter filed the instant Complaint, limiting
herself
to
discrimination.
allegations
of
race-
and
national-origin-based
(See generally Compl., Dkt. 1.)
II.
DISCUSSION
On a summary judgment motion, the movant bears the burden of
establishing that there is no genuine dispute of any material fact and
that it is entitled to judgment as a matter of law.
FED. R. CIV. P.
56(a); Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
The Court construes facts favorably to the nonmoving party and grants
all reasonable inferences in its favor.
Bagley v. Blagojevich, 646 F.3d
378, 388 (7th Cir. 2011) (quoting Ogden v. Atterholt, 606 F.3d 355, 358
(7th Cir. 2010)).
A.
Time-Barred Allegations
Title VII permits aggrieved employees to seek redress in federal
court for discriminatory conduct occurring within 300 days of their
filing of the EEOC charge.
42 U.S.C. § 2000e-5(e)(1); Stepney v.
Naperville Sch. Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004).
predicated upon conduct predating that window are barred.
F.3d at 239.
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Claims
Stepney, 392
Here, Khan filed her charge on June 26, 2016, meaning her window
for actionable conduct extends back to August 31, 2015. She acknowledges
as much, conceding that her earlier allegations—which in this case date
back to November 2013—are not actionable.
And yet, as Khan rightly
points out, this bar does not preclude her from “using the prior [and
barred] acts as background evidence in support of a timely claim.” Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see West v.
Ortho-McNeil Pharm. Corp., 405 F.3d 578, 581 (7th Cir. 2005). That said,
the Court cannot and will not award any relief on Khan’s pre-August 2015
allegations.
Khan contends that her demotion claim survives this bar, even
though she was demoted, and her responsibilities and bonus-eligibility
commensurately reduced, in November 2013.
The claim survives, she says,
because she was not “officially” demoted until April 2016, when First
American at last updated its system to reflect her diminished title.
Though First American’s record keeping appears to be lacking, that
shortcoming does not preserve Khan’s otherwise untimely claim.
alleged
discrimination
occurred—and
the
filing
limitations
The
period
therefore commenced—at the time the demotion decision was made and
communicated to Khan.
See Del. State Coll. v. Ricks, 449 U.S. 250, 258
(1980); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.
1990) (“Accrual is the date on which the statute of limitations begins
to run.
It is not the date on which the wrong that injures the plaintiff
occurs, but the date—often the same, but sometimes later—on which the
plaintiff discovers that he has been injured.”); accord Fish v. GreatBanc
Tr. Co., 749 F.3d 671, 679 n.3 (7th Cir. 2014) (citing Cada’s discovery
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rule approvingly). Thus, Khan’s demotions, both de facto and “official,”
are time-barred.
What remain are
Khan’s allegations concerning the
refusal of
personal time off in January 2016 and First American’s failures to
promote her back to EO in November 2015 and May 2016.
B.
Timely Title VII Claims
In the Seventh Circuit, courts weighing Title VII discrimination
claims ask simply whether the evidence shows that “the plaintiff’s race,
ethnicity, sex, religion, or other proscribed factor caused the discharge
or other adverse employment action” she allegedly suffered.
Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).
Ortiz v.
This inquiry
demands the reviewing court consider the evidence as a whole.
Id.
In
so doing, the court may apply the so-called McDonnell Douglas burdenshifting framework. See Ortiz, 834 F.3d at 766 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)).
Under that method, the plaintiff
must show she: (1) is a member of a protected class; (2) suffered a
materially adverse employment action; (3) was meeting her employer’s
legitimate
expectations;
and
(4)
was
treated
less
favorably
than
similarly situated employees who did not engage in protected activity.
Sklyarsky v. Means-Knaus Partners, L.P., 777 F.3d 892, 896-97 (7th Cir.
2015) (citation omitted).
When the plaintiff succeeds in making out
this prima facie case, the burden shifts to the defendant to offer a
legitimate, nondiscriminatory reason for the allegedly discriminatory
employment action.
back
to
the
pretextual.
Id.
plaintiff
Id.
If the defendant does so, the burden shifts
to
prove
that
the
proffered
explanation
is
It is undisputed that Khan, a Muslim woman born in
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India, is a member of two protected classes.
Beyond this, her case
stumbles.
1.
Refusal of Requested Personal Time Off
Khan contends she suffered an adverse employment decision when
Huggins refused to permit her to take two more days PTO than she had
accrued to journey to Mecca.
But if, as a matter of law, this refusal
cannot amount to a materially adverse employment decision, this claim
has no legs and First American is entitled to summary judgment.
Adverse
employment actions include termination, demotion, decrease in wages or
salary,
a
material
loss
of
material responsibilities.
benefits,
and
significantly
diminished
Rabinovitz v. Pena, 89 F.3d 482, 488 (7th
Cir. 1996) (quoting Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d
132, 136 (7th Cir. 1993)).
To suffice, these actions must impose
something “more disruptive than a mere inconvenience.”
Rhodes v. Ill.
Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004) (quoting Crady, 993
F.2d at 136)), overruled on other grounds by Ortiz v. Werner Enters.,
Inc., 834 F.3d 760 (7th Cir. 2016).
First American contends that
Huggins’ refusal of the two extra days cannot constitute a material loss
of benefits because these days were just that—extra.
Because Khan had
not accrued these two days, they were not her benefits to lose.
Court agrees.
The
Moreover, Khan has not shown that in refusing her the
requested time off, Huggins treated Khan less favorably than she treated
other non-Muslim, non-Indian employees.
See Sklyarsky, 777 F.3d at 896-
97. On this score, Khan did not have to demonstrate that Huggins allowed
greater-than-accrued time off to Christian employees taking mission
trips or to Jewish employees making Aliyah—although such evidence would
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weigh strongly in Khan’s favor—rather, she needed only to establish that
Huggins allowed any non-Muslim, non-Indian employee more PTO than they
had earned.
This Khan failed to do.
Id.; cf. Bunn v. Khoury Enters.,
Inc., 753 F.3d 676, 685 (7th Cir. 2014) (affirming award of summary
judgment
against
plaintiff
under
McDonnell
Douglas
framework
where
plaintiff “failed to identify, let alone discuss, a similarly situated,
[non-protected-class-member] employee who was treated more favorably”).
When taking the evidence as a whole, Khan’s PTO claim is deficient as a
matter of law.
The Court must accordingly grant summary judgment in
Defendant’s favor.
2.
Failure to Promote - November 2015
Khan’s allegations concerning her non-selection by First American
for the November 2015 EO position resemble a failure-to-promote claim,
though Khan quibbles with that definition.
She instead argues these
allegations recite a “failure to reinstate/utilize/promote” claim, given
that at the time the November 2015 position became available, Khan was
still technically employed as an EO and thus could not have been
“promoted” into a role she already held.
(Pl.’s Resp. at 1, Dkt. 32.)
As described below, however, this distinction ultimately fails to make
a difference in Khan’s case.
these
allegations
as
a
Idiosyncrasies aside, the Court construes
failure-to-promote
claim;
despite
Khan’s
definitional objection, she does not provide a cognizable alternative,
and the Court does not see one either.
The failure-to-promote variety of adverse-employment-action claims
requires an added degree of specificity to succeed.
A successful
plaintiff must show she applied, was qualified, and rejected for the
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position, and further that the employer gave the promotion instead to
someone outside of the protected group who was not better qualified than
she.
Carter v. Chi. State Univ., 778 F.3d 651, 660 (7th Cir. 2015)
(citing Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir. 2003)).
Even where the plaintiff does not apply for the position, however, she
can still prevail on her claim if she demonstrates that the employer’s
discriminatory practices deterred her from applying.
See Hudson v. Chi.
Transit Auth., 375 F.3d 552, 558 (7th Cir. 2004); cf. Lyons v. England,
307 F.3d 1092, 1114 (9th Cir. 2002) (reciting excusal of application
requirement
where
the
“trier
of
fact
could
reasonably
infer
that
promotions were not awarded on a competitive basis”).
Khan did not apply for the November 2015 position, but she contends
that failure is not fatal to her claims.
Instead, she offers three
explanations for why the Court should exempt her from the application
requirement: First, due to First American’s outdated records, Khan was
still technically employed as an EO as of November 2015 and should not
be expected to apply for a position she already held; second, Valentine
had
privately
decided
never
to
reinstate
Khan
as
an
EO,
so
any
application would have been futile; and third, Glossett, the successful
candidate, might not have actually applied for the position, meaning
Khan might have been deprived of the chance to apply.
The central flaw in the first explanation is that Khan’s improper
job title in First American’s system cannot have contributed to Khan’s
failure to apply unless Khan knew of the error at the time and believed
that error bore some significance to her position at First American.
The record is not clear whether Khan knew of the nomenclature error in
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November 2015, although there is circumstantial evidence on both sides.
Weighing in favor of Khan’s knowledge of the error is her contention
that after her oral demotion in November 2013, First American did not
transfer Khan to Huggins, who oversaw escrow assistants, but rather left
Khan in Valentine’s department (which presumably was staffed only by
EOs) (SOF Reply ¶ 11), as well as her contention that Valentine, not
Huggins, signed off on her performance reviews each year from 2013 to
2016.
(Id.)
Weighing in favor of Khan’s ignorance is her testimony
that after her demotion, Khan performed the job of an escrow assistant
and reported to Huggins, who managed her day-to-day performance and job
responsibilities.
(See Ex. 1 to Reply in Supp. of Summ. J., Khan Dep.
Tr. 16:16-21, Dkt. 35-1; Ex. 1 to Defs.’ Facts, Khan Dep. Tr. 104:7-13,
Dkt.
25-1.)
But
no
matter
how
the
trier
of
fact
weighs
this
circumstantial evidence, nothing in the record suggests Khan believed
that error held any practical meaning for her.
Despite the system being
out of date, Khan admittedly worked and was compensated as an escrow
assistant starting after she was demoted in November 2013.
alleges
nor
points
to
evidence
in
the
record
She neither
suggesting
that
notwithstanding her day-to-day responsibilities, she believed she could
be re-elevated to the EO position without first applying for it.
Nor
does she establish any evidence showing that she knew of any conduct by
First American management that deterred her from applying.
In Khan’s second explanation for why she should be excused from
the application requirement, she points to Valentine’s admission that
after she demoted Khan, Valentine privately decided she would never
reinstate Khan as an EO. (Ex. B to Pl.’s Facts, Valentine Dep. Tr. 41:17- 10 -
43:8, Dkt. 31-2.)
From Khan’s perspective, this concession is ironclad
proof of discrimination. Yet nothing in the record suggests Khan learned
of Valentine’s resolution prior to her deposition in December 2017. (See
generally Ex. B to Pl.’s Facts, Valentine Dep. Tr., Dkt. 31-2.) As such,
Valentine’s private resolve does not assist Khan in proving she felt
deterred from applying, so it does not absolve her of the requirement
to prove she applied in the first place.
See Hudson, 375 F.3d at 558.
In Khan’s third explanation, she suggests it is unclear whether
Glossett actually applied for the November 2015 position.
Though Khan
does not say as much, the implication seems to be that if Glossett never
applied, there was perhaps no opportunity for Khan to apply; instead,
Glossett might have been plucked from the lower ranks for promotion by
First American management, who chose Glossett over Khan because of
prejudice.
In
support
of
this
speculation,
Khan
points
out
that
Glossett’s job application suffers from certain oddities and seems to
be incomplete.
(SOF Resp. ¶ 37 (citing Ex. 2 to Defs.’ Facts, Glossett
Application, Dkt. 25-2).)
And yet, despite all this conjectural storm
and stress, Khan concedes that Glossett applied, interviewed, and was
ultimately hired to the position.
(SOF Resp. ¶ 37.)
Her indefinite
suggestions to the contrary are thus much ado about nothing.
Thus, as
demonstrated above, none of Khan’s justifications for failing to apply
to the November 2015 position pass muster.
As an aside, the Court notes that even if Khan had not failed to
apply, she would face an uphill battle in proving at trial that she was
at least as qualified as Glossett.
at First American in December 2012.
Khan was hired into the EO position
Her previous relevant experience
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consisted of two years in an EO position at another company.
¶¶ 4-5.)
(SOF Resp.
Glossett, meanwhile, had by November 2015 worked for First
American as an escrow assistant for five years, as an EO for seven years
(three of which she also worked as an escrow manager), as an escrow
trainer for three years, as an escrow disbursement coordinator for two
years, and as an escrow team lead for more than two years.
¶ 38.)
(SOF Resp.
While the parties have not advised the Court regarding the
responsibilities of these roles nor their respective positions in the
business’ hierarchy, it is clear that Khan’s five years’ experience in
the industry pales in comparison to Glossett’s nineteen.
To any extent, the Court need not say as a matter of law whether
Khan and Glossett were at least equally qualified.
Khan has not shown
she is excepted from the application requirement, so her failure to apply
for the November 2015 position dooms her allegations based on the same.
The failure-to-promote claim fails as a matter of law, so the Court
awards summary judgment to First American in relevant part.
3.
Failure to Promote - May 2016
In Khan’s response brief, she contends that she was again passed
over for promotion in May 2016, this time for a candidate named Apryl
Christensen. The problem here is that Khan did not raise this allegation
until after First American moved for summary judgment.
Christensen and
the May 2016 position make no appearance in her complaint, and Khan
testified at her deposition that the November 2015 position was the only
one she sought to challenge in her charge.
(Ex. 30 to Reply in Supp.
of Summ. J., Khan Dep. Tr. 60:20-61:6, Dkt. 36-2.)
“A plaintiff cannot
create a genuine issue of material fact, thereby precluding summary
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judgment, by raising facts for the first time in response to defendant’s
motion for summary judgment which were not raised in the complaint.”
Bassiouni v. CIA, No. 02 C 4049, 2004 WL 1125919, at *8 (N.D. Ill. Mar.
31, 2004) (citation omitted), aff’d, 392 F.3d 244 (7th Cir. 2004); see
Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (“[A]
plaintiff may not amend his complaint through arguments in his brief in
opposition to a motion for summary judgment.”).
It is too late to raise
this new allegation, and the Court will not entertain it.
4.
Miscellaneous Claims
Finally, the Court must consider a batch of timely claims arising
from
Khan’s
alleged
treatment
Employee Appreciation Week.
during
First
American’s
Spring
2016
During that week, First American decorated
employees’ cubicles and gave employees “goody bags.”
It is undisputed
that while some number of other cubicles were decorated, Khan’s was not.
(SOF Resp. ¶ 45.)
Further, the parties agree that Khan received her
goody bag later than many (if not all) other employees received theirs.
(Id. ¶¶ 43-44.)
Khan contends these discrepancies owe to Winsky’s
discriminatory bias.
First American contends that because it and Khan
had previously agreed that Khan could work from 9:00 a.m. to 6:00 p.m.,
rather than the standard 8 to 5, Khan was not yet present in the office
when the cubicles were decorated, and the goodies distributed.
¶¶ 25, 43-44.)
(Id.
This explanation justifies the tardy goody distribution,
though not necessarily Defendant’s passing over of Khan’s cubicle, but
it makes no difference.
Though minor acts of unkindness—if that is what
these were—can indeed be motivated by discrimination, they do not amount
to legally-actionable claims under Title VII.
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See Rabinovitz, 89 F.3d
at 488 (reciting examples of conduct qualifying as adverse employment
actions).
The Court grants summary judgment to Defendant on these
remaining claims, which erases the balance of Khan’s Complaint.
III.
CONCLUSION
For the reasons stated herein, Defendant First American’s Motion
for Summary Judgment (Dkt. 24) is granted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
9/11/2018
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