Cole v. Indiana Dept of Workforce Development
Filing
48
OPINION AND ORDER GRANTING 41 MOTION for Summary Judgment filed by Indiana Dept of Workforce Development. Signed by Judge Joseph S Van Bokkelen on 9/23/2015. (cc: Plaintiff) (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
Gayle M. Cole,
Plaintiff,
v.
Indiana Department of Workforce
Development,
Civil Action No. 1:13-CV-347-JVB
Defendant.
OPINION AND ORDER
In this Title VII lawsuit, Plaintiff pro se Gayle Cole alleges that Defendant, Indiana
Department of Workforce Development, racially discriminated against her, which eventually led
to her discharge. Plaintiff also contends that Defendant retaliated against her for complaining
about race discrimination and subjected her to a hostile work environment. Plaintiff, an AfricanAmerican woman, worked as an unemployment insurance claims deputy for Defendant from
2009 until September 2012. Defendant, in its Motion for Summary Judgment, counters
Plaintiff’s version of events and maintains that it fired her because she consistently failed to meet
established productivity benchmarks. Defendant asserts that this failure was the sole factor in its
decision.
A. Background
Plaintiff worked for Defendant in different part and full-time capacities from 2000 until
2009, when she accepted a job offer from Defendant as a Claims Deputy 5 in its Fort Wayne
facility. (DE 43-1, Mem. at 1.) Defendant describes this position as requiring an individual to
“analyze[] information and make[] eligibility determinations in conformance with state and
federal unemployment laws . . . [and that] [t]hese determinations must meet stringent timeliness
and quality standards . . . set by federal and state authorities.” (DE 43-2, Ex. B at 1.) After a
week in this new position, Defendant discharged Plaintiff. (DE 43-5, Ex. E at 1.) Neither party
describes what led to this discharge. Nevertheless, this oversight is inconsequential because
Defendant reinstated Plaintiff six weeks later, paid her back pay, and she signed a release that
prevents her from litigating this discharge. (Id. at 1–3.)
Plaintiff continued to struggle after her reinstatement. Defendant required claims deputies
to address 20 issues per day, but Plaintiff routinely failed to meet this productivity standard. For
instance, for the 37-week period spanning June 2010 through February 2011, Plaintiff never met
this standard. (DE 43-6, Ex. F at 1–2.) Because of this failure, Plaintiff’s supervisor gave her an
overall performance rating of “Needs Improvement” on her 2010 annual evaluation and
attributed this to Plaintiff’s inability to perform “at an adequate rate which inhibits her ability to
meet required production levels.” (DE 43-7, Ex. G at 3–4.)
Following this evaluation, Plaintiff failed to improve her production levels and her
supervisor eventually placed her on a Work Improvement Plan (WIP) in March 2011. (DE 43-9,
Ex. I at 1.) Plaintiff’s WIP, which spanned eleven weeks, required her to work with a supervisor
and a “Program Specialist 4” to improve her productivity and meet with these two individuals
weekly to discuss progress and to “determine what future steps can be taken.” (Id.) Plaintiff’s
WIP also required her to maintain a production level of at least 70% during the first two weeks
of the program and between 80-100% during the last two weeks. (DE 43-9, Ex. I at 1.) Plaintiff
met the minimum 80% production level during six of the eleven weeks of her WIP and her
supervisor released her from the program. (DE 43-6, Ex. F at 2.)
Upon release from the WIP in May 2011, Plaintiff’s productivity levels again slipped
below the 80% minimum standard. In fact, in the year following her WIP Plaintiff only met the
minimum standard six weeks. Because of this precipitous and sustained drop in productivity,
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Plaintiff’s supervisor met with her in July 2011. During this meeting, her supervisor relayed that
her post-WIP performance was unsatisfactory and a failure to consistently meet minimum
productivity standards might result in disciplinary action. (DE 43-11, Ex. K. at 1.)
Approximately two weeks later, another supervisor divided Plaintiff’s assignments amongst her
coworkers because she was falling so far behind. (DE 43-12, Ex. L at 1–2.)
The following month, in August 2011, Plaintiff filed a Civil Service Employee Complaint
alleging that Defendant improperly denied her a pay raise because of racial discrimination and
retaliation. (DE 43-13, Ex. M at 1–2.) Plaintiff’s complaint was dismissed because her annual
evaluation, which characterized her overall performance as “Needs Improvement,” made her
ineligible for a pay raise. (DE 43-14, Ex. N at 1.) The state official reviewing her complaint also
noted that the comparators cited by Plaintiff were inappropriate because none of them had
received negative evaluations. (Id.)
In November 2011, Plaintiff’s supervisor reprimanded her for an unsatisfactory number
of “negative issues” and for passing only five of her twelve quality assurance reviews. (DE 4316, Ex. P at 2.) Plaintiff’s supervisor also noted that Plaintiff’s “production, timeliness, and
quality are all at unacceptable levels.” (Id.) Plaintiff filed a Civil Service Employee Complaint
arguing that this reprimand was unjust and singled her out unfairly. (DE 43-18, Ex. R at 1–4.)
Defendant’s Human Resources Director dismissed Plaintiff’s Complaint because she found
“[t]he discipline administered was appropriate due to [Plaintiff’s] high number of issues that are
untimely” and her continued low productivity. (DE 43-19, Ex. S at 1.) Plaintiff’s appeal of this
decision was also denied. (DE 43-20, Ex. T at 1.)
In January 2012, Plaintiff received her 2011 annual evaluation. (DE 43-23, Ex. W at 1.)
Plaintiff’s supervisor stated that she was not meeting expectations for teamwork, drive for
results, motivation/initiative, and organizational commitment. (Id. at 3–4.) Correspondingly,
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Plaintiff received an overall performance rating of “Does Not Meet Expectations,” which is the
lowest designation possible. Defendant suspended Plaintiff for five days in February 2012,
because she again failed to meet minimum productivity standards in December and January. (DE
43-24, Ex. X at 1.) In response, Plaintiff filed a Civil Service Employee Complaint (DE 43-25,
Ex. Y.), which her Human Resources Director denied. (DE 43-26, Ex. Z at 1.)
Defendant eventually discharged Plaintiff on September 28, 2012, because of her
continued inability to meet productivity standards. (DE 43-28, Ex. BB at 1.) Plaintiff maintained
that her discharge was a continuation of Defendant’s ongoing pattern of race discrimination and
retaliation and filed another Civil Service Employee Complaint to combat her discharge. (Id.)
The State Employees’ Appeals Commission consolidated Plaintiff’s complaints regarding her
reprimand, suspension, and discharge. After a four-day hearing, the Administrative Law Judge
(ALJ) found that Defendant’s “employment decisions were not caused by unlawful race
discrimination, harassment, or retaliation.” (Id. at 2.) Two months after the ALJ’s decision,
Plaintiff filed this Title VII action alleging Defendant’s actions constituted race discrimination,
retaliation, and subjected her to a hostile work environment.
B.
Summary Judgment Standard
A court must grant a motion for summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). Rule 56(c) also requires the entry of
summary judgment, after adequate time for discovery, against a party “who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
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which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
A party seeking summary judgment bears the initial responsibility of informing a court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact. Id. at 323. If the moving party
supports its motion for summary judgment with affidavits or other materials, it thereby shifts to
the non-moving party the burden of showing that an issue of material fact exists. Keri v. Bd. of
Trust. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006).
Rule 56(e) specifies that once a properly supported motion for summary judgment is
made, “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set
forth specific facts to establish that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
In viewing the facts presented on a motion for summary judgment, a court must construe
all facts in a light most favorable to the non-moving party and draw all legitimate inferences and
resolve all doubts in favor of that party. Keri, 458 F.3d at 628. A court’s role is not to evaluate
the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the
matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v.
Liberty Lobby, 477 U.S. 242, 249–50 (1986).
C. Defendant’s Motion for Summary Judgment
Defendant has filed a motion for summary judgment on all three of Plaintiff’s claims.
Defendant, in accordance with Local Rule 56-1(f) provided Plaintiff, a pro se litigant, with a
notice of the consequences of failing to respond to a summary judgment motion. Plaintiff filed a
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Response but failed to establish the prima facie elements of any of her claims. Consequently, the
Court grants Defendant’s Motion for Summary Judgment (DE 41).
(1) Plaintiff’s Title VII Racial Discrimination and Retaliation Claims
Title VII makes it unlawful for an employer to “discriminate against any individual . . .
because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff pursuing a Title VII
race discrimination claim can survive summary judgment through the direct or indirect method
of proof. Mullin v. Temco Machinery, Inc., 732 F.3d 772, 776 (7th Cir. 2013). In this case,
Plaintiff has not presented any direct or circumstantial evidence that supports an inference of
discrimination. Alexander v. Casino Queen, Inc., 739 F.3d 972, 979 (7th Cir. 2014). Similarly,
for her retaliation claim, Plaintiff provides no direct evidence of a causal connection between her
statutorily protected activity and any adverse employment action. Accordingly, the Court
presumes Plaintiff is attempting to survive summary judgment on her race discrimination and
retaliation claims by employing the indirect method. 1
Under the indirect method, a plaintiff must demonstrate that: (1) they are members of a
protected class; (2) they were meeting their employer’s legitimate expectations; (3) they suffered
an adverse employment action; and (4) at least one similarly situated employee, not in their
protected class, was treated more favorably. Rodgers v. White, 657 F.3d 511, 517 (7th Cir. 2011).
If Plaintiff can establish a prima facie case, then “the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for [the adverse employment action] which if believed by
the trier of fact, would support a finding that unlawful discrimination was not the cause of the
employment action.” Petts v. Rockledge Furniture, LLC, 534 F.3d 715, 725 (7th Cir. 2008). If
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Plaintiff raises her discrimination and retaliation claims under Title VII. For both claims, Plaintiff’s prima facie
burden includes demonstrating that she was meeting her employer’s legitimate expectations and similarly situated
employees outside her protected class were treated more favorably. Hudson v. Chicago Transit Auth., 375 F.3d 552,
559 (7th Cir. 2004). As a result, the Court can analyze both claims concurrently.
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the defendant meets this burden, the burden shifts back to the plaintiff to prove that the proffered
reason is a pretext for race discrimination. Id. A plaintiff pursuing a claim under the indirect
method bears “[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the . . . plaintiff.” Contreras v. Suncast Corp., 237 F.3d 756,
760 (7th Cir. 2001).
In this case, Plaintiff fails to satisfy two prongs of her prima facie case. First, Plaintiff has
not demonstrated that she was meeting her employer’s legitimate expectations. As recounted
above, Defendant has provided voluminous evidence that demonstrates that Plaintiff was not
meeting the minimal level of productivity required and Defendant informed her repeatedly of
this failure. Moreover, Defendant tried to provide Plaintiff with resources and additional training
necessary to achieve her productivity goals, but to no avail. Second, Plaintiff has not alleged any
comparators outside her protected class that Defendant treated more favorably. Plaintiff failed to
provide evidence that employees of another race, or employees who did not file a discrimination
complaint, were treated more favorably than she was. Instead, Defendant, albeit unnecessarily,
provided evidence that it disciplined and discharged white employees with similar performance
and productivity issues. Even though the Court liberally construes Plaintiff’s pro se response, she
has still failed to establish a prima facie case for her Title VII discrimination and retaliation
claims. Accordingly, the Court grants Defendant’s motion for summary judgment as it addresses
these two claims.
(2) Plaintiff’s Title VII Hostile Work Environment Claim
Plaintiff’s final claim alleges that Defendant subjected her to a hostile work environment.
Plaintiff alleges that her supervisors created this hostile work environment by not selecting her
for overtime assignments or special projects and placing her on a Work Improvement Plan
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(WIP). Plaintiff maintains that the WIP humiliated her in front of her co-workers because a
supervisor came and sat with her three to four times per week to monitor her work.
In a hostile work environment context, an employer violates Title VII when “the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create[s] an abusive
working environment.” Mendenhall v. Mueller Streamline Co., 419 F.3d 686, 691 (7th Cir. 2005)
(quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993)). To maintain a hostile work
environment claim, a plaintiff must prove “(1) that the work environment was both subjectively
and objectively offensive; (2) that the harassment was based on membership in a protected class;
(3) that the conduct was severe or pervasive; and (4) that there is a basis for employer liability.”
Id. To satisfy the first prong, the plaintiff must subjectively believe that the harassment was
sufficiently severe or pervasive to have altered the working environment, and the harassment
must be sufficiently severe or pervasive, from the standpoint of a reasonable person, to create a
hostile work environment. Turner v. The Saloon, Ltd., 595 F.3d 679, 685 (7th Cir. 2010). The
factors that a court may consider in deciding whether the environment is hostile include “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 982 (7th Cir.
2014) (citations omitted).
In this case, Plaintiff has failed to provide any evidence that Defendant’s conduct was:
objectively offensive, due to her race, severe and pervasive, or interfered with her work
performance. While Plaintiff maintains that the WIP was subjectively humiliating, she does not
provide any evidence to support her contention that it was objectively offensive. The WIP
involved a supervisor observing her for one hour per day and a follow-up meeting to discuss her
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production. This sort of performance-based improvement program appears to be a reasonable
mechanism to assist an underperforming employee.
Nevertheless, even if the Court deemed the WIP as objectively offensive, which it does
not, Plaintiff has not demonstrated that Defendant put her on a WIP because of her race. Instead,
Defendant has supplied uncontroverted productivity and performance records that show
Defendant implemented the WIP after Plaintiff failed to meet productivity goals for an extended
period. Moreover, the WIP was not pervasive, because as soon as Plaintiff’s productivity
improved, she no longer had to work under these conditions. Accordingly, the Court grants
Defendant’s motion for summary judgment regarding Plaintiff’s Title VII hostile work
environment claim.
E. Conclusion
The parties present two vastly different stories of what occurred, but Plaintiff has failed
to provide sufficient evidence to support any of her claims. Accordingly, the Court grants
Defendant’s motion for summary judgment (DE 41).
SO ORDERED on September 23, 2015.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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