Blakely et al v. Big Lots Stores Inc

Filing 82

OPINION AND ORDER granting in part and denying in part 66 Motion for Summary Judgment. Defendants motion for summary judgment is granted on all claims by plaintiffs Leola Nancy Stone, Lorine Blakely, Lillian Brown, Mary Williams, Tierney Lokey, Angela Walker, and Marlo Williams. Defendants motion for summary judgment is denied as to all claims by Mabel Owusu, Kia Thomas, Julia Rogers, and Verretta Terry. Signed by Senior Judge James T Moody on 6/17/2015. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LORINE BLAKELY, LILLIAN M. BROWN,
TIERNEY LOKEY, MABEL OWUSU,
KIA THOMAS, LEOLA NANCY STONE,
JULIA E. ROGERS, VERRETTA TERRY,
ANGELA SALES-STEPHENS,
ANGELA L. WALKER, MARLO WILLIAMS,
MARY B. WILLIAMS,
Plaintiffs,
v.
BIG LOTS STORES, INC.,
Defendant.

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No. 2:10 CV 342

OPINION AND ORDER
Defendant Big Lots Store, Inc. (“Big Lots” or “defendant”) has moved for
summary judgment on plaintiffs Lorine Blakely, Lillian Brown, Tierney Lokey, Mabel
Owusu, Kia Thomas, Leola Nancy Stone, Julia Rogers, Verretta Terry, Angela L.
Walker, Marlo Williams, and Mary B. Williams’s (“plaintiffs”) claims against it.
(DE # 66.) Plaintiffs have filed a response to this motion (DE # 76), and defendant has
filed a reply (DE # 80.) For the following reasons, defendant’s motion is granted in part
and denied in part.
I.

Facts
In the summary that follows, the court refers only to undisputed facts, or, if there

is a dispute, notes that it exists and relies on the version of the fact, or inference

therefrom, that is most favorable to the plaintiffs. This summary provides an overview.
Additional relevant undisputed facts will be referred to in the analysis that follows.
Big Lots is a national retailer that focuses on selling closeout and discounted
merchandise. (DE # 67 at 7; DE # 1 at ¶ 15.) Each of the plaintiffs was previously
employed by defendant at defendant’s Merrillville, Indiana location (“the store”).
(DE # 67 at 7; DE # 1 at 4-5.) Each of the plaintiffs is African American (DE # 67 at 7;
DE # 1 at 4-5), and six of the plaintiffs – Lorine Blakely, Lillian Brown, Julia Rogers,
Leola Nancy Stone, Verretta Terry, and Mary Williams – were over the age of 40 at the
time in which their employment with defendant ended. (DE # 67 at 7; DE # 1 at 4-5.)
Eight of the plaintiffs were full-time employees during their employment with
defendant. Plaintiffs Owusu and Stone were Associate Store Managers. (DE # 67 at 7;
DE # 1 at 5.) Plaintiff Thomas worked as the store’s Furniture Manager. (DE # 67 at 7;
DE # 1 at 5.) Plaintiffs Brown, Rogers, and Mary Williams worked as Customer Service
Specialists. (DE # 67 at 7; DE # 1 at 4-5.) Plaintiffs Blakely and Terry worked as cashiers.
(DE # 67 at 7; DE # 1 at 4-5.) Plaintiffs Walker, Marlo Williams, and Lokey all worked as
part-time sales associates at the store.1 (DE # 67 at 8; DE # 1 at 4-5.)
On July 24, 2009, Big Lots held a store closing meeting at the store to inform its
employees that the store would be closed. (DE # 67 at 8; DE # 68-11 at 9.) Several
months earlier, defendant had decided to close the store because the store’s landlord

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Plaintiffs Walker, Marlo Williams, and Lokey will be referred to as “the PartTime Associates.”
2

would not renegotiate its lease. (DE # 68-1 at 3.) Defendant, therefore, decided to open a
new store in a higher-traffic area a few miles away in nearby Hobart, Indiana. (DE # 67
at 8; DE # 68-1.) The store ended up closing in September of 2009, and defendant
opened its new Hobart store in October of 2009. (DE # 67 at 8-9; DE # 68-1 at 3.)
The store closing meeting, attendance at which was voluntary, was led by
District Manager Thomas Cagle and Regional Human Resources Manager Josh
Hammerschmidt. (DE # 67 at 9; DE # 1 at 2.) The meeting was not mandatory because
defendant did not want the employees that did not come to the meeting to be
disciplined. (DE # 67 at 9; DE # 1 at 2.) Six plaintiffs attended the store closing meeting
(Lorine Blakely, Lillian Brown, Julia Rogers, Nancy Stone, Kia Thomas, and Marlo
Williams) and five did not (Tierney Lokey, Mabel Owusu, Verretta Terry, Angela
Walker, and Mary Williams). (DE # 67 at 9.)
Defendant and plaintiffs give differing accounts as to what happened at the
meeting. According to defendant, District Manager Cagle began the meeting by
informing the attendees that the store was closing and that because of the business
model defendant uses to set up a new store, defendant could not guarantee that any
employee would get a full-time position at the new store. (DE # 67 at 9; DE # 68-7 at 4.)
After speaking for a short time, Cagle handed the meeting over to HR Manager
Hammerschmidt, who then led the rest of the meeting. (DE # 67 at 10; DE # 68-11 at 15.)
According to defendant, at the beginning of the store closing meeting,
Hammerschmidt distributed copies of defendant’s transfer request form, defendant’s

3

store closing pay policy, and defendant’s frequently asked questions relating to store
closings. (DE # 67 at 10; DE # 68-11 at 12.) These are the same documents that
Hammerschmidt distributes at every store closing meeting he runs. (DE # 67 at 10;
DE # 68-11 at 12.) Hammerschmidt also explained that any employee that was
interested in transferring to the new store would have to fill out a transfer request form
in order to be considered for a transfer. (DE # 67 at 11; DE # 68-11 at 14.) At the end of
the store closing meeting, Hammerschmidt took questions and handed out his business
card so employees could contact him if they had additional questions. (DE # 67 at 11;
DE # 68-11 at 11.)
Plaintiffs, however, testified to completely different accounts of the store closing
meeting (for those who attended) and the events that occurred after. The court will now
look to each plaintiff’s account of the transfer process, construing the facts most
favorably to the plaintiffs.
A. Tierney Lokey
Lokey did not attend the store closing meeting. (DE # 68-14 at 7; Lokey Dep. at p.
53:2-10.) Lokey understood that to transfer to the new store, she was required to fill out
the transfer request form and interview for a position at the new store. (DE # 68-14 at 8;
Lokey Dep. at p. 60:5-23.) Lokey never reached out to anyone in a position of authority
in defendant’s hierarchy to find out more information about transferring to the other
store. (DE # 68-14 at 9; Lokey Dep. at p. 65:1-15.) Lokey believed she was being pushed
to accept the severance pay because it was a better option for the plaintiffs. (DE # 76-23

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at 10, Lokey Dep. at p. 108:2-8.) Lokey felt “humiliated” because she was not given a
guaranteed position at the new store. (DE # 68-14 at 3; Lokey Dep. at pp. 41:2-42:12.)
B. Mabel Owusu
Owusu did not attend the store closing meeting, (DE # 68-17 at 7; Owusu Dep. at
p. 62:11-14), but she knew that she had to fill out a transfer request form in order to be
eligible for a transfer to the new store. (DE # 68-17 at 6; Owusu Dep. at p. 61:3-19.)
Owusu’s fellow employees told her that the store was closing. (DE # 68-17 at 7; Owusu
Dep. at p. 62:20-23.) After learning that the store was closing, Owusu called
Hammerschmidt to ask him if he would hold another meeting explaining the store
closing process. (DE # 68-17 at 8; Owusu Dep. at p. 67:12-14.) Hammerschmidt told
Owusu that he was not going to hold another store closing meeting, and that if she
wanted to transfer to the new store, Owusu would have to fill out a transfer request
form. (DE # 68-17 at 8-9; Owusu Dep. at pp. 67:22-68:10.)
After speaking with Hammerschmidt, Owusu called corporate headquarters to
find out additional information about the transfer process. (DE # 76-5 at 9; Owusu Dep.
at p. 92:2-2.) Owusu talked to two individuals who did not understand the transfer
process. (DE # 76-5 at 10; Owusu Dep. at p. 102:4-24.) After that, Owusu went to Hobart
Store Manager Paul Sierra to ask him about the transfer, and Seirra told Owusu to “take
your money and run.” (DE # 76-5 at 12; Owusu Dep. at p. 104:2-6.)

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C. Veretta Terry
Terry did not attend the store closing meeting. (DE # 68-35 at 7; Terry Dep. at p.
57:3-16.) Terry learned about the store closing and her transfer options from her fellow
employees. (DE # 68-35 at 8; Terry Dep. at p. 61:3-11.) Terry knew that she had to fill out
a transfer request form, but did not because she felt that defendant did not want her to
transfer to the new store. (DE # 68-35 at 8; Terry Dep. at p. 61:17-20.) Terry thought that
defendant did not want her to transfer to the new store because defendant could not tell
its employees which store they would be transferring to and because defendant could
not guarantee that employees would have the same pay and the same job at a new
store. (DE # 68-35 at 8; Terry Dep. at p. 61:22-24.)
Terry did ask manager Jim Villegas about transferring, and he told Terry that he
did not know how that process worked. (DE # 68-35 at 10; Terry Dep. at p. 64:6-14.)
Terry also called someone at defendant’s corporate office to inquire about the transfer
process. (DE # 68-35 at 11; Terry Dep. at p. 66:4-14.) The person Terry spoke with at
corporate did not know how the transfer process worked. (DE # 68-35 at 12; Terry Dep.
at p. 71:13-29.)
D. Angela Walker
Walker did not attend the store closing meeting. (DE # 68-41 at 7; Walker Dep. at
p. 123:17-20.) Walker never asked Hammerschmidt or manager Jim Villegas about what
happened at the meeting. (DE # 68-41 at 8-9; Walker Dep. at pp. 128:17-129:4.) After
finding out the store was going to be closing, Walker asked Villegas what she had to do

6

to transfer to the new store, and Villegas told her she needed to fill out a transfer
request form. (DE # 68-41 at 12; Walker Dep. at p. 132:6-15.) Walker also asked Villegas
for a transfer request form, and he said that he would get back to her with one, but he
became busy and never gave Walker a transfer form. (DE # 68-41 at 12-13; Walker Dep.
at p. 132:16-133:24.) Walker never made any other attempts to secure a transfer request
form. (DE # 68-41 at 14; Walker Dep. at p. 134:1-11.)
Walker eventually asked Villegas again about the transfer slip, and he told her
she had missed the deadline to transfer. (DE # 76-9 at 4; Walker Dep. at p. 134:11-17.)
E. Mary Williams
Mary Williams did not attend the store closing meeting. (DE # 68-45 at 3;
Williams Dep. at p. 20:9-11.) Williams learned from her fellow employees that the store
would be closing. (DE # 68-45 at 4; Williams Dep. at p. 27:11-24.) Williams never asked
anybody at the store what she needed to do to transfer to the new store and never asked
anyone for a transfer request form. (DE # 68-45 at 5-6; Williams Dep. at pp. 33:20-34:5;
DE # 68-45 at 7-8; Williams Dep. at pp. 35:18-36:3.) Williams never saw any transfer
request forms. (DE # 68-45 at 6; Williams Dep. at p. 34:6-9.) Williams made no attempt
to transfer to the new store because she was not guaranteed to have the same job or the
same pay at the new store. (DE # 68-45 at 9-10; Williams Dep. at pp. 37:17-38:4.)
F. Lillian Brown
Lillian Brown attended the store closing meeting. (DE # 68-6 at 7; Brown Dep. at
p. 106:17-18.) At the meeting, Hammerschmidt explained that all employees could

7

apply for transfers to the new store, but that there was no guarantee that each employee
would get the same position that they previously held. (DE # 68-6 at 8-9; Brown Dep. at
pp. 118:16-119:17.) Hammerschmidt also explained that employees who applied for
transfers might get jobs at stores other than the new store in Hobart but that were still
within a 30-mile radius of the store. (DE # 68-6 at 8-9; Brown Dep. at pp. 118:16-119:17.)
Additionally, Hammerschmidt told the employees at the meeting that full-time
positions were not guaranteed at the new store, and that if the employees accepted a
new position at a different store, they would no longer be entitled to severance pay.
(DE # 68-6 at 8-9; Brown Dep. at pp. 118:16-119:17.) Hammerschmidt also told the
meeting attendees that he was just there to give them the news, not to answer questions.
(DE # 76-10 at 2; Brown Dep. at p. 144:22-24.)
At the meeting, Hammerschmidt told employees that if they wanted to transfer
they needed to go into the store’s office and fill out a transfer form. (DE # 68-6 at 10;
Brown Dep. at p. 122:7-21.) Although she initially began filling out a transfer request
form, Brown did not submit the form because she was confused and did not think the
transfer process was fair. (DE # 68-6 at 11-12; Brown Dep. at p. 124:12-125:11.) When
Brown was told that there was no guarantee that she would get her same position at the
new store, she said “forget, it[,]” and did not submit the form. (DE # 68-13 at 10; Brown
Dep. at p. 126:14-23; DE # 68-6 at 15-16; Brown Dep. at p. 128:23-12:5.)

8

G. Leola Nancy Stone
Stone attended the store closing meeting. (DE # 68-32 at 9; Stone Dep. at p.
101:11-12.) Stone testified that there were no documents handed out at the meeting, but
she received a transfer request form after the meeting from Acting Store Manager Jim
Villegas. (DE # 68-32 at 9; Stone Dep. at p. 101:11-18.) Stone later went on to testify that
she understood her transfer options:
Q: So if you applied for a full-time transfer but you were only able to get a
part-time transfer and you accepted that position, then you would lose out
on your severance pay?
A: That’s correct.
***
Q: What if you applied for a full-time transfer, were offered a part-time
transfer, but turned that down? What did you understand would happen?
A: I would get the severance package and my unemployment.
Q: So you knew that if you applied for a full-time position but there wasn’t
one available, you could still get your severance and unemployment, correct?
A: Yes.
(DE # 68-32 at 13; Stone Dep. at p. 127:5-21.) Stone’s understanding of her options was
correct. (See DE # 67 at 13-14.)
Stone actually filled out a transfer form requesting a transfer to the new store,
and gave it to store manager Jim Villegas. (DE # 68-32 at 3-4; Stone Dep. at p. 31:2232:10.) She submitted it to Villegas after a conversation in which Stone told Villegas that
she wanted to transfer to the new store, and Villegas responded that Stone transferring
to the new store was impossible. (DE # 68-32 at 4; Stone Dep. at p. 32:1-23.) After that,
Stone contacted Hammerschmidt about the status of her transfer application. (DE # 68-

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32 at 6; Stone Dep. at p. 55:6-7.) She left Hammerschmidt a message but
Hammerschmidt never called Stone back. (DE # 68-32 at 6; Stone Dep. at p. 55:6-7.)
After failing to find anything out about the status of her transfer application from
Hammerschmidt, Stone once again approached Villegas about her transfer, but he “just
blew [her] off.” (DE # 68-32 at 6; Stone Dep. at p. 55:8-10.) Stone eventually talked with
Assistant Store Manager Linda Gaboian about her transfer. (DE # 68-32 at 6; Stone Dep.
at p. 55:11-22.) Gaboian told Stone that she did not know the status of Stone’s transfer
request. (DE # 76-6 at 4; Stone Dep. at p. 53:7-10.) At that point, Stone told Gaboian that
she was withdrawing her transfer request because she was frustrated about not
knowing where she stood with regard to the transfer. (DE # 76-6 at 5; Stone Dep. at p.
55:11-19.) Stone was also frustrated by the fact that Gaboian already knew she was
going to be moved to the new store, but Gaboian could not give Stone any information
on Stone’s transfer. (DE # 76-6 at 4; Stone Dep. at p. 53:7-19.) Stone also did not think it
was fair that it was possible that she would be moved to another store and lose her
current position. (DE # 68-32 at 7; Stone Dep. at p. 57:11-16.) Finally, Stone testified that
she would not have accepted a part-time position at another store if one had been
offered to her. (DE # 68-32 at 17; Stone Dep. at p. 171:8-14.)
H. Marlo Williams
Marlo Williams attended the store closing meeting. (DE # 68-43 at 16; Williams
Dep. at p. 75:3-4.) At the meeting, Williams tried to pay as much attention as she could,
but admitted that she was not “really like paying attention.” (DE # 68-43 at 16; Williams

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Dep. at p. 75:18-24.) Williams never saw any transfer request forms at the store.
(DE # 76-18 at 2; Williams Dep. at p. 31:20-22.) (DE # 68-43 at 4; Williams Dep. at p. 32:313.) Although Williams knew that she could get a transfer request form from the office,
she never attempted to get a transfer request form because she “figured they didn’t
want to give us one.” (DE # 68-43 at 4; Williams Dep. at p. 32:3-13.) Williams, however,
testified that she had “no idea” what that assumption was based on. (DE # 68-43 at 4;
Williams Dep. at p. 32:3-14-15.) Williams did not understand the transfer process
(DE # 76-18 at 2; Williams Dep. at p. 31:12-22), and did not follow up with anyone to get
a better understanding of the process because she felt that Hammerschmidt did not care
about her. (DE # 68-43 at 4; Williams Dep. at p. 32:3-13.) Additionally, Williams testified
that the managers were acting like they did not want the plaintiffs to go to the new
store. (DE # 76-18 at 3; Williams Dep. at p. 77:20-78:14.)
I. Lorine Blakely
Blakely was at the store closing meeting. (DE # 68-3 at 5; Blakely Dep. at p. 98:1618.) Blakely received the transfer request form at the store closing meeting, but did not
receive the store closing pay policy or the store closing FAQ document. (DE # 68-3 at 8;
Blakely Dep. at p. 111:14-24.) After the meeting, Blakely followed up with
Hammerschmidt regarding transferring to the new store, and Hammerschmidt told her
to fill out a transfer request form if she wanted to go to the new store. (DE # 68-3 at 9;
Blakely Dep. at p. 113:1-24.)

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At some point, Blakely asked Acting Store Manager Jim Villegas about the
possibility of transferring, and Villegas just laughed in response to her inquiry.
(DE # 76-8 at 2; Blakely Dep. at p. 103:7-9.) After the store closing had been made public,
a customer asked Blakely, who was working the cash register at the time, whether she
would be moving to the new store. (DE # 76-8 at 2; Blakely Dep. at p. 103:10-19.) Before
Blakely had an opportunity to respond, Assistant Store Manager Linda Gaboian
responded that Blakely would not be transferring to the new store. (DE # 76-8 at 2;
Blakely Dep. at p. 103:7-9.)
Blakely did not submit a transfer request form. (DE # 68-3 at 9; Blakely Dep. at p.
113:1-24.) Blakely decided against submitting a transfer request form because she did
not believe it was worth it to submit the transfer form when there was no guarantee of
employment:
Because I asked him2 why was we putting in a transfer. He said we need to
put in a transfer to go to the other store.
I said, “Well, what’s the purpose? We are in the system for 20 years almost.
What is the purpose?” That’s the day I think we talked – he kind of explained
off the top of our head that if we take the transfer and we can go anywhere,
but it doesn’t mean that we would get hours, full-time positions. Nothing
was guaranteed. We’ll be out there taking a risk. So it wouldn’t – it didn’t
pay for us to even put in a transfer.

2

It is unclear from the portions of Blakely’s deposition in the record who Blakely
was referring to here.
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(DE # 68-3 at 6; Blakely Dep. at p. 102:3-14 [all sic]; see also DE # 68-3 at 24; Blakely Dep.
at p. 189:10-11 (“I did not sign [the transfer request form] because they did not
guarantee me anything.”).
J. Julia Rogers
Rogers attended the store closing meeting. (DE # 68-19 at 10; Rogers Dep. at p.
99:18-24.) Rogers was told at the meeting that if she submitted a transfer request form
and was offered a part-time position at another store but declined the offer, she would
not get her severance pay. (DE # 68-19 at 11-13; Rogers Dep. at p. 102:21-104:16.) Rogers
knew that she had to submit a transfer request form if she wanted to transfer to the new
store (DE # 68-19 at 16; Rogers Dep. at p. 128:13-15.) Rogers decided not to submit a
transfer form, however, because she did not want to risk being offered a part-time
position and losing her severance pay if she turned it down. (DE # 68-19 at 11-13;
Rogers Dep. at p. 102:21-104:16.)
K. Kia Thomas
Thomas attended the store closing meeting. (DE # 68-38 at 7; Thomas Dep. at p.
73:14-18.) Thomas was given Hammerschmidt’s business card at the meeting, but was
not given any other documents. (DE # 68-38 at 9; Thomas Dep. at p. 85:1-13.) Thomas
eventually found some of the store closing documents online. (DE # 68-38 at 10-11;
Thomas Dep. at p. 103:19-104:3.)
Thomas filled out a transfer request form, but eventually withdrew it because
she could not get a clear understanding of her transfer options. (DE # 68-38 at 12;

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Thomas Dep. at p. 105:9-21.) Specifically, Thomas testified that she was unclear on
whether she would still be eligible for severance and unemployment benefits if she was
offered a part-time position at the new store but declined the offer. (DE # 76-7 at 3;
Thomas Dep. at p. 112:3-9.) Thomas asked both Hammerschmidt and Villegas this
question, but she never got an answer. (DE # 76-7 at 3; Thomas Dep. at p. 112:10-19.)
Thomas also testified that she did not submit a transfer request form because she did
not want to risk taking a part-time job at the new store and losing out on her severance
and unemployment benefits. (DE # 68-38 at 14; Thomas Dep. at p. 115:3-20.)
II.

Procedural History
As a result of not being transferred to the new store, plaintiffs filed the current

suit. Plaintiffs, who are all African-American, allege that they were discriminated
against due to their race in violation of Title VII of the Civil Rights Act of 1964. (DE # 1.)
Additionally, plaintiffs Blakely, Brown, Rogers, Stone, Terry, and Mary Williams allege
that they were discriminated against due to their age in violation of the Age
Discrimination in Employment Act (ADEA). (Id.) Defendant has now moved for
summary judgment on all of plaintiffs’ claims. (DE # 66.)
III.

Legal Standard
FEDERAL RULE OF CIVIL PROCEDURE 56 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
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

14

317, 322 (1986). “[S]ummary judgment is appropriate–in fact, is mandated–where there
are no disputed issues of material fact and the movant must prevail as a matter of law.
In other words, the record must reveal that no reasonable jury could find for the nonmoving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.
1994) (citations and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met; it may discharge this responsibility by showing that there
is an absence of evidence to support the non-moving party’s case. Carmichael v. Village of
Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010) (citing Celotex, 477 U.S. at 323). To
overcome a motion for summary judgment, the non-moving party must come forward
with specific facts demonstrating that there is a genuine issue for trial. Id. (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The existence of
a mere scintilla of evidence, however, is insufficient to fulfill this requirement. Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The nonmoving party must
show that there is evidence upon which a jury reasonably could find for him. Id.
The court’s role in deciding a summary judgment motion is not to evaluate the
truth of the matter, but instead to determine whether there is a genuine issue of triable
fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th
Cir. 1994). On summary judgment a court may not make credibility determinations,
weigh the evidence, or decide which inferences to draw from the facts; these are jobs for
a factfinder. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson, 477 U.S. at

15

255). In viewing the facts presented on a motion for summary judgment, the court must
construe all facts in a light most favorable to the non-moving party and draw all
reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d
966, 968 (7th Cir. 1998); Doe, 42 F.3d at 443. Importantly, the court is “not required to
draw every conceivable inference from the record [in favor of the non-movant]-only
those inferences that are reasonable.” Bank Leumi Le-Israel, B.M., v. Lee, 928 F.2d 232, 236
(7th Cir. 1991) (emphasis added).
IV.

Analysis
Defendant first argues that it is entitled to summary judgment on plaintiffs’ race

discrimination claims. (DE # 67 at 28.)
Title VII forbids an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to [the
individual’s] compensation, terms, conditions, or privileges of employment, because of
such individual’s race . . . or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may
prove employment discrimination under Title VII using either the “direct method” or
the “indirect method” of proof. See, e.g., Cerutti v. BASF Corp., 349 F.3d 1055, 1060-61
(7th Cir. 2003). Under the direct method of proof, a plaintiff must show through the
preponderance of direct and/or circumstantial evidence that the employer’s decision to
take an adverse job action against the plaintiff was motivated by an unlawful purpose,
such as race or national origin. Id. at 1061. The indirect method provides a burdenshifting framework in which a plaintiff who establishes a prima facie case enjoys a

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presumption of discrimination which requires the defendant to articulate a legitimate
non-discriminatory reason for its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973).
Using the indirect, or “burden-shifting,” method, the plaintiff carries “the initial
burden under the statute of establishing a prima facie case of . . . discrimination.”
McDonnell Douglas Corp., 411 U.S. at 802 . To establish a prima facie case of
discrimination, a plaintiff must offer evidence that: (1) he is a member of a protected
class; (2) his job performance was meeting the employer’s legitimate expectations; (3) he
suffered an adverse employment action; and (4) another similarly situated individual
who was not in the protected class was treated more favorably. Coleman v. Donahoe, 667
F.3d 835, 845 (7th Cir. 2012). Once such a showing is made, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for its actions. Id. If the
employer does so, then the burden shifts back to the plaintiff to offer evidence
suggesting that the offered explanation is a pretext for discrimination. Id.
In its motion for summary judgment, defendant argues that plaintiffs cannot
meet the third or fourth requirements of their initial burden on their race discrimination
claim.3 With regard to the third element, defendant argues that plaintiffs did not suffer
adverse employment actions. (DE # 67 at 29-34, 35-41.) Specifically, defendant argues
that plaintiffs cannot meet the adverse employment action element because none of the

3

Plaintiffs do not appear to be arguing that their race discrimination claim can
proceed under the direct method. (DE # 76 at 7-18.)
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plaintiffs submitted a transfer form requesting to be considered for a job at the new
store. (Id.)
In response, plaintiffs argue that they suffered an adverse employment action
when defendant failed to transfer the plaintiffs to the new Hobart store. (DE # 76 at 1217, 20-22.) Plaintiffs concede that they did not fill out transfer request forms, but argue
that they can still meet the adverse employment action requirement because they were
deterred from submitting transfer forms after defendant presented their options in a
confusing manner at the store closing meeting and then refused to clarify plaintiffs’
options after the meeting. (DE # 76 at 14-22.)
“If a plaintiff does not apply for a job vacancy that is posted, he cannot make a
prima facie case for unlawful discrimination or retaliation under Title VII unless the
plaintiff demonstrates that the employer’s discriminatory practices deterred plaintiff
from applying.” Hudson v. Chicago Transit Authority, 375 F.3d 552, 558 (7th Cir. 2004). In
International Broth. of Teamsters v. United States, the Supreme Court held that a plaintiff
who did not apply for a job can still proceed under the indirect method if the
employer’s discriminatory practices deterred her from applying:
The effects of and the injuries suffered from discriminatory employment
practices are not always confined to those who were expressly denied a
requested employment opportunity. A consistently enforced discriminatory
policy can surely deter job applications from those who are aware of it and
are unwilling to subject themselves to the humiliation of explicit and certain
rejection.
If an employer should announce his policy of discrimination by a sign
reading “Whites Only” on the hiring-office door, his victims would not be
limited to the few who ignored the sign and subjected themselves to personal
18

rebuffs. The same message can be communicated to potential applicants
more subtly but just as clearly by an employer’s actual practices by his
consistent discriminatory treatment of actual applicants, by the manner in
which he publicizes vacancies, his recruitment techniques, his responses to
casual or tentative inquiries, and even by the racial or ethnic composition of
that part of his work force from which he has discriminatorily excluded
members of minority groups. When a person’s desire for a job is not
translated into a formal application solely because of his unwillingness to
engage in a futile gesture he is as much a victim of discrimination as is he
who goes through the motions of submitting an application.
***
The denial of Title VII relief on the ground that the claimant had not formally
applied for the job could exclude from the Act’s coverage the victims of the
most entrenched forms of discrimination. Victims of gross and pervasive
discrimination could be denied relief precisely because the unlawful practices
had been so successful as totally to deter job applications from members of
minority groups. A per se prohibition of relief to nonapplicants could thus
put beyond the reach of equity the most invidious effects of employment
discrimination those that extend to the very hope of self-realization. Such a
per se limitation on the equitable powers granted to courts by Title VII
would be manifestly inconsistent with the “historic purpose of equity to
‘secur(e) complete justice’ “ and with the duty of courts in Title VII cases “ ‘to
render a decree which will so far as possible eliminate the discriminatory
effects of the past.’ “ Albemarle Paper Co. v. Moody, 422 U.S., at 418, 95 S.Ct.,
at 2372.
431 U.S. 324, 365-67 (1977).4

4

In its reply brief, defendant argues that plaintiffs cannot show that they suffered
an adverse employment action because four African-American associates from the old
store transferred to the new store, and therefore, any alleged discriminatory practice by
defendant was not “so successful as totally to deter job applications from members of
minority groups.” (DE # 80 at 10 (quoting Teamsters, 431 U.S. at 367).) A reading of that
section of the Court’s opinion in Teamsters, however, does not indicate that a plaintiff
must show that an employer’s discriminatory practice deterred all minority applicants
from applying to a job in order to make a prima facie case under the “deterrence”
adverse employment action theory. See 431 U.S. at 367. Additionally, defendant does
not cite any other authority for this proposition.
19

Plaintiffs argue that they were deterred from submitting transfer request forms
because defendant’s store closing meeting was intentionally misleading and because,
after the meeting, defendant “evad[ed] the [p]laintiffs and fail[ed] to answer their
questions . . . .” (DE # 76 at 16-17.) Both plaintiffs (DE # 76 at 6-9) and defendant
(DE # 67 at 21-24) treat plaintiffs as a whole with regard to the issue of whether
plaintiffs were deterred from applying for transfers by defendant’s discriminatory
practices. Each plaintiff, however, went through a very different experience when it
came to the store closing meeting and the events that occurred after. Therefore, to
determine whether plaintiffs have raised a genuine issue of material fact on this issue
the court will need to look at each plaintiff’s testimony individually.
A. Part-Time Associates’ Race Discrimination Claims
i. Adverse Employment Action5
a. Tierney Lokey
Lokey did not attend the store closing meeting, but knew that she had to submit
a transfer request form in order to transfer to the new store. (DE # 68-14 at 7-8.) Lokey
never reached out to anyone to inquire about transferring to the new store.6 (Id. at 9.)

5

In its brief, defendant argues that none of the plaintiffs suffered an adverse
employment action because each employee was an at-will employee. (DE # 67 at 33-34.)
This is irrelevant. An employer may not illegally discriminate against an at-will
employee. Green v. Am. Fed’n of Teachers/Illinois Fed’n of Teachers Local 604, 740 F.3d 1104,
1105 (7th Cir. 2014); see also Dorsey v. Shire Regenerative Med., Inc., No.
1:13-CV-1583-WTL-DKL, 2014 WL 1725823, at *2 (S.D. Ind. Apr. 30, 2014).
6

In their brief, plaintiffs assert that Lokey asked her manager Kia Thomas, about
transferring to the new store. (DE # 76 at 21.) Nothing in the pages that plaintiffs cite for
20

Lokey felt “humiliated” that she would not be given a guaranteed position at the new
store. (Id. at 3.) She also felt pushed to take the severance pay because there were no
guaranteed positions at the new store. (DE # 73-23 at 10.)
In their brief, plaintiffs argue that “[b]y evading the Plaintiffs and failing to
answer their questions, Defendant effectively deterred the Plaintiffs from submitting a
transfer request form.” (DE # 76 at 16-17.) The undisputed facts with regard to Lokey,
however, show that Lokey knew that she had to fill out the transfer request form, but
did not. Additionally, Lokey did not attend the meeting and did not inquire about the
transfer process with anyone. Thus, Lokey has failed to present any evidence that
defendant’s conduct deterred her from applying for a transfer, and defendant is
therefore entitled to summary judgment on her race discrimination claim. Chaib v.
Indiana, 744 F.3d 974, 982 (7th Cir. 2014) (“The requirement that a plaintiff show she
suffered an adverse employment action as a result of her employer’s alleged
discrimination is an element of any Title VII claim, regardless of whether the claim is
reviewed under the traditional direct/indirect framework or the less rigid framework
our cases have recently suggested.”).
b. Angela Walker
Walker did not attend the store closing meeting. (DE # 68-41 at 7.) After finding
out that the store was closing, Walker asked store manager Jim Villegas what she
needed to do to transfer to the new store. (Id. at 12.) Villegas told Walker that she

this fact supports this assertion.
21

needed to fill out a transfer request form. (Id.) Walker also asked Villegas for a transfer
request form, and he told her he would get her one, but he became busy and never
provided Walker with the form. (Id. at 12-13.) Walker made no other attempts to secure
a transfer request form, and when she eventually asked Villegas about the form again,
Villegas informed her that the deadline to transfer had passed. (Id. at 14; DE # 76-9 at 4.)
Although Villegas failed to provide Walker with a transfer request form after she
had asked him for one, this, by itself, is insufficient for a reasonable jury to conclude
that defendant deterred Walker from applying for a transfer. Walker knew that she had
to submit a transfer request form to transfer to the new store, but, other than asking
Villegas for a form one time, she made no other efforts to secure and submit a transfer
request form. Given these undisputed facts, no reasonable jury could conclude that
defendant deterred Walker from applying for a transfer, and defendant is entitled to
summary judgment on Walker’s race discrimination claim. Chaib, 744 F.3d at 982.
c. Marlo Williams
Williams attended the store closing meeting, but during the meeting she was not
“really like paying attention.” (DE # 68-43 at 16.) Williams knew that she could get a
transfer request form from the office, but chose not to because she “figured they
didn’t want to give us one.” (DE # 68-43 at 4.) Williams, however, testified that she had
“no idea” what that assumption was based on. (DE # 68-43 at 4.) Williams did not
understand the transfer process, and did not follow up with anyone to get a better
understanding of the process because she felt that Hammerschmidt did not care about

22

her. (DE # 68-43 at 2, 4.) Williams also testified that the managers were acting like they
did not want the plaintiffs to go to the new store. (DE # 76-18 at 3; Williams Dep. at p.
77:20-78:14.)
The undisputed evidence shows that although Williams attended the meeting,
she did not pay attention to what was being said at the meeting. Williams subjectively
believed that defendant did not want her to transfer to the new store, but failed to direct
the court to any evidence indicating what she based this belief on. Williams, therefore,
has failed to point to any evidence that defendant or its employees did or said anything
that deterred her from applying for a transfer. No reasonable jury could conclude that
defendant deterred Williams from applying, and defendant is entitled to summary
judgment on Williams’s race discrimination claim. Johnson v. Jung, No. 02 C 5221, 2009
WL 3156743, at *4 (N.D. Ill. Sept. 28, 2009) (“While courts have occasionally loosened
[the requirement that plaintiff apply for an open position], they have done so only
when discriminatory practices existed to prevent minorities from applying for jobs, not
simply when an employee subjectively believed that their application would be futile.”),
aff’d sub nom. Johnson v. Gen. Bd. of Pension & Health Benefits of United Methodist Church,
733 F.3d 722 (7th Cir. 2013); Wilkerson v. Menard, Inc., No. 2:08 CV 26, 2009 WL 1011099,
at *8 (N.D. Ind. Apr. 15, 2009) (“[Plaintiff’s] failure [to apply] was not due to procedures
or practices on the part of Menards that were intended to prevent minorities from
applying for jobs. She simply chose not to do so because she subjectively believed that
to do so would be futile . . . .”); see also Chaib, 744 F.3d at 982.

23

Because none of the part-time associates suffered an adverse employment action,
defendant is entitled to summary judgment on their race discrimination claims, and the
court will now proceed to address the other plaintiffs’ race discrimination claims.
B. Full-Time Managers’ Race Discrimination Claim
i. Adverse Employment Action
Defendant also argues that it is entitled to summary judgment on Owusu,
Thomas, and Stone’s race discrimination claims. (DE # 67.) The court will first analyze
whether these three plaintiffs have raised a genuine issue of material fact with regard to
whether they suffered an adverse employment action, before moving on to defendant’s
other argument.
a. Mabel Owusu
Owusu did not attend the store closing meeting, but did know that she had to fill
out a transfer request form in order to get a job at the new store. (DE # 68-17 at 6-7.)
Because she did not understand exactly how the store closing process worked, Owusu
called Hammerschmidt and asked him to hold another meeting. (Id. at 8.)
Hammerschmidt told Owusu that there was not going to be another meeting. (Id.)
Hammerschmidt also told Owusu that she would need to fill out a transfer request form
if she wanted to transfer to the new store. (Id. at 8-9.) At that point, Owusu still did not
understand her transfer options, so she called corporate headquarters to find out more
information, but she was only able to speak to two people who did not know how the
transfer process worked. (DE # 76-5 at 9-10.) Finally, Owusu asked Hobart Store

24

Manager Paul Sierra about the transfer process, and Sierra told Owusu to “take your
money and run.” (Id. at 12.)
In its Teamsters opinion, the Supreme Court noted that an employer’s “responses
to casual or tentative inquiries” can provide evidence that an employee was deterred
from applying for a job. 431 U.S. at 365-67. In this case, although Owasu did not attend
the store closing meeting, she did try, by contacting a store manager and corporate
headquarters, to find out what her transfer options were. Unfortunately, neither the
store manager nor corporate headquarters was able to give Owusu enough information
to allow her to make an informed decision on submitting a transfer request form. And,
instead of answering Owusu’s question about the transfer process, Sierra told Owusu to
“take your money and run.” Given Sierra’s refusal to answer Owusu’s inquiry, a
reasonable jury could conclude that Owusu was deterred from submitting a transfer
request form. Defendant’s argument on this point therefore fails.
b. Nancy Stone
Stone attended the store closing meeting, and clearly understood her transfer
options. (DE # 68-32 at 11, 13.) Stone submitted a transfer request form to Villegas,
despite the fact that Villegas had told her that it would be impossible for her to transfer
to the new store. (Id. at 3-4.) After she had submitted her transfer request form to
Villegas, Stone contacted Hammerschmidt to check on the status of her transfer request.
(Id. at 6.) Stone was unable to reach Hammerschmidt, so she left a message for him, but
he never called her back. (Id.) After not hearing back from Hammerschmidt, Stone

25

asked Villegas about her transfer request, but he just blew her off. (Id.) Finally, Stone
asked store manager Linda Gaboian about her transfer request, and when Gaboian told
Stone that she did not know the status of Stone’s transfer request, Stone informed
Gaboian that she would be withdrawing her transfer request form. (DE # 76-6 at 5.)
Stone was frustrated by the fact that no one could tell her the status of her transfer
request, and was also frustrated because Linda Gaboian already knew she was going to
be moved to the new store. (DE # 76-6 at 4-5.)
Stone attended the meeting, clearly understood her transfer options, and
submitted a transfer request form. Although she did not get a response regarding her
transfer request as quickly as she would have liked, no reasonable jury could conclude
that Stone was deterred from applying for a transfer when defendant clearly explained
Stone’s transfer options and Stone actually submitted a transfer request form. The fact
that defendant did not respond to Stone’s request as quickly as she would have liked is
not sufficient to raise an issue of material fact on whether she was deterred from
applying. Therefore, defendant is entitled to summary judgment on Stone’s race
discrimination claim. Chaib, 744 F.3d at 982.
c. Kia Thomas
Thomas attended the store closing meeting and was given Hammerschmidt’s
business card but no other documents. (DE # 68-38 at 7, 9.) Although Thomas
eventually found some of the store closing documents online, she was still not sure
whether she would receive severance pay if she turned down a part-time position at the

26

new store. (DE # 68-38 at 10-11; DE # 76-7 at 3.) Thomas reached out to both
Hammerschmidt and Villegas to try to get her question answered, but neither provided
Thomas with an answer. (DE # 76-7 at 3.) Thomas submitted a transfer request form,
but eventually took it back because she could not get a clear understanding of her
transfer options.(DE # 68-38 at 12.)
Although Thomas testified that she did not submit a transfer form because she
did not want to risk losing her severance and unemployment benefits by taking a parttime job at the new store (DE # 68-38 at 14), Thomas also testified she did not know
whether she would get those benefits if she turned down a part-time job at the new
store, despite the fact that she tried to get an answer to her question from both
Hammerschmidt and Villegas. Given Thomas’s uncertainty regarding her transfer
options, and the evidence that Hammerschmidt and Villegas would not explain the
options to her, a reasonable jury could conclude that Thomas was deterred from
submitting a transfer request form. Therefore, defendant’s argument on this point fails.
ii. Similarly Situated Employees
Defendant next argues that the full-time managers cannot show that any
similarly situated employees outside their protected class were treated more favorably.7
(DE # 67 at 40.) In response, plaintiffs identify two individuals that they believe are

7

The court will confine its analysis here to plaintiffs Thomas and Owusu, the two
remaining full-time managers.
27

similarly situated to the full-time managers – Jackie Isaac and Linda Gaboian. (DE # 76
at 17.)
“The similarly situated inquiry is a flexible, common-sense comparison based on
‘substantial similarity’ rather than a strict one-to-one mapping between
employees[.]”Argyropoulos v. City of Alton, 539 F.3d 724, 735 (7th Cir. 2008) (citations and
quotations omitted). This analysis, however, still requires “enough common features
between the individuals to allow [for] a meaningful comparison.” Id. (citations and
quotations omitted). Thus, “[s]imilarly situated employees must be directly comparable
to the plaintiff in all material respects, but they need not be identical in every
conceivable way.” Coleman, 667 F.3d at 846 (citations and quotations omitted). “A
meaningful comparison is one which serves to eliminate confounding variables, such as
differing roles, performance histories, or decision-making personnel, which helps
isolate the critical independent variable: complaints about discrimination.”Argyropoulos,
539 F.3d at 735 (citations and quotations omitted). “The touchstone of the similarlysituated inquiry is simply whether the employees are comparable.” Coleman, 667 F.3d at
846 (citations and quotations omitted).
“Whether a comparator is similarly situated is usually a question for the
fact-finder, and summary judgment is appropriate only when no reasonable fact-finder
could find that plaintiffs have met their burden on the issue.” Id. at 846-47 (citations and
quotations omitted). “There must be enough common factors . . . to allow for a
meaningful comparison in order to divine whether intentional discrimination was at

28

play.” Id. at 847 (citations and quotations omitted). “In the usual case a plaintiff must at
least show that the comparators (1) dealt with the same supervisor, (2) were subject to
the same standards, and (3) engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or the employer’s
treatment of them.” Id. (citations and quotations omitted).
The court will first analyze whether Owusu has identified a similarly situated
employee, and then move on to analyze the issue with respect to Thomas.
a. Owusu
At the Merrillville store, Owusu was an Associate Store Manager. (DE # 80 at 13.)
Plaintiffs identify two individuals that they believe are similarly situated to Owusu –
Jackie Isaac and Linda Gaboian. (DE # 76 at 17.) Gaboian, who is white, was the
Assistant Store Manager at the Merrillville store. (DE # 67 at 15, 25.) Both Owusu and
Gaboian reported to the store manager Jim Villegas. (DE # 76-15 at 12; DE # 76-17 at 1.)
Owusu and Gaboian also had similar job responsibilities. (DE # 76-15 at 2-3; DE # 76-17
at 1.)
Like Owusu (DE # 68-17 at 8), Gaboian did not have all the relevant facts
regarding opportunities at the new store. (DE # 76-15 at 6.) Unlike Owusu, who tried
unsuccessfully to get more information on the store closing process and transfer
opportunities from Hammerschmidt, corporate headquarters, and Paul Sierra (see supra
pp. 24-25), Gaboian had much more success in getting information regarding the store
closing process.

29

While she was on vacation, Gaboian learned from Villegas that the store was
closing, but did not get much additional information until she got back to the store.
(DE # 76-15 at 4-5.) On the first day Gaboian got back from vacation, she sat down with
Villegas to talk about the store closing. (Id. at 6.) The meeting between Villegas and
Gaboian lasted ten to fifteen minutes, and included an explanation of what happened at
the store closing meeting and what Gaboian would have to do to transfer to the new
store. (Id. at 6-7.)
Additionally, Gaboian was given a full-time position at the new store. She was
hired as a full-time Assistant Store Manager, the same position that she had held at the
old store. (DE # 80 at 8.) There is no evidence that Owusu was notified that there was a
full-time management position available. Given these facts, Owusu has raised a genuine
issue of material fact as to whether Gaboian was a similarly situated employee outside
of Owusu’s protected class who received more favorable treatment than Owusu did.
Defendant’s arguments to the contrary are not persuasive. First, defendant
argues that there is no evidence that the meeting between Gaboian and Villegas was
anything more “than an informal exchange in the store between two
members of management[.]” (DE # 80 at 8.) Gaboian’s testimony on this issue, however,
reveals that this exchange lasted at least ten minutes and involved Villegas explaining
her transfer options and what happened at the store closing meeting. (DE # 76-15 at 47.) This is sufficient to raise an issue of fact on whether Gaboian was treated more
favorably than Owusu.

30

Next, defendant argues that there is no evidence that any plaintiff applied for the
Assistant Store Manager position that Gaboian received or that any plaintiff was
qualified for that position. (DE # 80 at 8.) Defendant, however, has failed to direct the
court to any evidence that it made any of the plaintiffs aware that applying for this
position at the new store was even a possibility. Defendant’s argument on this point
therefore fails.
Finally, Defendant also argues that Owusu fails the similarly situated test
because there were no full-time positions available to her at the new store and that
Owusu would not consider taking a part-time position. (DE # 80 at 13.) As noted earlier,
Owusu and Gaboian had similar job responsibilities, and there is no evidence that
Owusu was made aware of the opportunity to transfer to the new store as a full-time
manager. This argument therefore fails. Because defendant makes no argument other
than that Owusu cannot make out a prima facie case (DE # 67 at 35-41), defendant’s
motion for summary judgment is denied as to Owusu’s race discrimination claim.
b. Thomas
At the Merrillville store, Thomas was the furniture manager. (DE # 80 at 13.)
Plaintiffs contend that Thomas was similarly situated to Jackie Isaac, a white woman
that had been employed as an associate at the defendant’s Portage location, but that
transferred to the Hobart store once it had opened. (DE # 76-14 at 2-4.) Plaintiffs
contend that Isaac was treated more favorably than Thomas because Isaac received

31

personal assistance in filling out the transfer form and was also considered for a fulltime associate position at the Hobart store. (DE # 76 at 18.)
Plaintiffs direct the court to a series of emails sent by Josh Hammerschmidt, Tom
Myron, and Angela Mock, discussing the hiring of Isaac at the new store. (DE # 76-11.)
In response, defendant argues that these emails are inadmissible hearsay. (DE # 80 at 67.) Under Federal Rule of Evidence 801(d)(2), a statement by an opposing party offered
against that party is not hearsay if the statement “was made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed[.]” Fed.
R. Evid. 801(d)(2)(D).
When these emails were sent, Tom Myron was one of defendant’s Regional Vice
Presidents, Josh Hammerschmidt was a Regional Human Resources Manager, and
Angela Mock was a Regional Associate Relations Manager. (DE # 76-11.) All of these
emails were sent from each individual’s Big Lots’ email account, and each email
concerned hiring at the new Hobart store. (Id.) Therefore, these emails are admissible as
non-hearsay under Rule 801, and the court will consider the emails. Stephens v. Erickson,
569 F.3d 779, 793 (7th Cir. 2009) (“For an agent’s statement regarding an employment
action to constitute an admission, she need not have been personally involved in that
action, but her duties must encompass some responsibility related to the
decisionmaking process affecting the employment action.” (citations and quotations
omitted).

32

There are two facts of note raised in the emails. First, in a series of emails
between Myron and Hammerschmidt, it is made clear that the people doing the hiring
at the new store all agreed that Isaac could transfer to the new store as a full-time
associate. (DE # 76-11 at 5-6.) In a different email chain, between Hammerschmidt and
Mock, it is revealed that store manager Paul Sierra assisted Isaac in filling out her
transfer request form.8 (DE # 76-11 at 3.)
In response, defendant argues that the emails do not “provide clear evidence
about Ms. Isaac’s completion of the transfer form, or what, if anything, Sierra did to
help her.” (DE # 80 at 6-7.) Additionally, defendant directs the court to testimony from
Isaac’s deposition that indicates that Sierra had no hand in Isaac transferring to the new
store. (Id. at 7.)
Construing the facts most favorably to plaintiffs, as the court must, however, this
evidence indicates that defendant’s decision makers agreed to allowing Isaac to transfer
to the new store as a full-time associate, while there is no evidence that Thomas was
given that same consideration. Additionally, this evidence shows that Sierra may have
assisted Isaac in filling out her transfer request form. Thomas, on the other hand, could
not get information to make an informed decision on transferring from either
Hammerschmidt or Villegas. Thomas, therefore, has raised a genuine issue of material
fact on whether a similarly situated comparator was treated more favorably than she

8

It is not clear from the emails that Hammerschmidt and Mock are talking about
Isaac. Defendant does not dispute this point, however, so the court will treat it as
undisputed. (DE # 80 at 6-7.)
33

was. Defendant’s argument on this point fails. Because defendant makes no argument
other than that Thomas cannot make out a prima facie case (DE # 67 at 35-41),
defendant’s motion for summary judgment is denied as to Thomas’s race discrimination
claim.
C. Full-Time Associates’ Race Discrimination Claim
i. Adverse Employment Action
Defendant also argues that it is entitled to summary judgment on Blakely,
Brown, Rogers, Mary Williams, and Verretta Terry’s race discrimination claims because
they cannot show they suffered an adverse employment action and cannot show that
similarly situated employees outside of their protected class were treated more
favorably. (DE # 67.) The court will first analyze whether these plaintiffs have raised a
genuine issue of material fact as to whether they suffered an adverse employment
action.
a. Verretta Terry
Terry did not attend the store closing meeting, and learned about the closing and
her transfer options from her co-workers. (DE # 68-35 at 7-8.) Terry knew she had to fill
out a transfer request form. (Id. at 8.) In an attempt to figure out what her transfer
options were, Terry contacted both Villegas and defendant’s corporate headquarters,
but did not receive any information from either. (Id. at 10-11.) Ultimately, Terry did not
submit a transfer request form because she did not think defendant wanted her to
transfer to the new store. (Id.)

34

Given Terry’s attempts to make an informed decision regarding transferring, and
given that she could not get an answer to her questions, a reasonable jury could
conclude that Terry was deterred from applying for a transfer. Defendant’s argument
on this point therefore fails.
b. Mary Williams
Williams did not attend the store closing meeting, did not ever ask anyone what
she needed to do to transfer to the new store, and did not make any attempt to transfer
to the new store because she was not guaranteed to have the same job or the same pay
at the new store. (DE # 68-45 at 3, 5-6, 9-10.) There is no evidence that a discriminatory
practice by defendant deterred Williams from applying to the new store, and no
reasonable jury could conclude that Williams suffered an adverse employment action.
Defendant is therefore entitled to summary judgment on Williams’s race discrimination
claim. Chaib, 744 F.3d at 982.
c. Lillian Brown
Brown attended the store closing meeting, and began filling out a transfer
request form, but ultimately did not submit it because she was confused and she did not
think it was fair that there was no guarantee that she would get the same position at the
new store. (DE # 68-6 at 6-7, 10, 15-16.) Although she was confused about the process,
Brown has failed to point to any evidence that anyone at the meeting or after the
meeting provided her with inaccurate information. Brown testified that
Hammerschmidt gave the following information, all of which was true:

35

•

At the meeting, Hammerschmidt explained that all employees
could apply for transfers to the new store, but that there was no
guarantee that each employee would get the same position that
they previously held. (DE # 68-6 at 8-9.)

•

Hammerschmidt also explained that employees who applied for
transfers might get jobs at stores other than the new store in Hobart
but that were still within a 30-mile radius of the store. (DE # 68-6 at
8-9; see also DE # 68-40 at 2 (explaining transfer options).

•

Hammerschmidt also told the employees at the meeting that fulltime positions were not guaranteed at the new store, and that if the
employees accepted a new position at a different store, they would
no longer be entitled to severance pay. (DE # 68-6 at 8-9; see also
DE # 68-40 at 4 (explaining that employees cannot take a position at
another store and also get severance pay).)

•

At the meeting, Hammerschmidt told employees that if they
wanted to transfer they needed to go into the store’s office and fill
out a transfer form. (DE # 68-6 at 10.)

Thus, Brown did not testify that anyone gave her false or misleading information
about her transfer options. Given these undisputed facts, no reasonable jury could
conclude that defendant deterred plaintiff from submitting a transfer request form, and
defendant’s motion for summary judgment will be granted as it relates to Brown’s race
discrimination claim. Chaib, 744 F.3d at 982.
d. Lorine Blakely
Blakely, who attended the store closing meeting, also followed up with
Hammerschmidt after the meeting regarding transferring, and was told by
Hammerschmidt that she needed to submit a transfer request form. (DE # 68-3 at 5, 9.)
Blakely eventually asked a store manager about the possibility of transferring, but the
manager just laughed in response to her inquiry. (DE # 76-8 at 2.) Later, when Blakely
36

was working at the cash register, a customer asked her if she would be moving to the
new store, but before Blakely had a chance to respond, a different store manager
stepped in and responded that Blakely would not be transferring to the new store. (Id.)
Ultimately, however, Blakely did not submit a transfer request form because she was
not guaranteed the same job or the same hours at the new store. (DE # 68-3 at 6, 24.)
Although there were certainly several incidents that might have deterred her
from submitting a transfer request form, Blakely has failed to direct the court to any
evidence that either of these incidents had any impact on her decision of whether to
submit a transfer request form. Instead, the only evidence the court has on this issue is
that Blakely did not submit a transfer request form because it was not guaranteed that
she would get the same job and same hours at the new store. Given these undisputed
facts, no reasonable jury could conclude that Blakely was deterred from submitting a
transfer form. Chaib, 744 F.3d at 982.
e. Julia Rogers
Rogers, who was a full-time employee, attended the store meeting, and was told
that if she were to be offered a part-time position at a different store, and declined that
offer, she would not be entitled to severance pay. (DE # 68-19 at 10-13.) That
information, however, was not true. (DE # 67 at 13-14.) Rogers also testified that she did
not submit a transfer request form because she did not want to risk being offered a parttime job, turning it down, and losing out on her severance pay. (DE # 68-19 at 11-13.)

37

Construing the facts most favorably to Rogers, she was given false information
about her transfer options at the store closing meeting. This information would have
made submitting a transfer request form much less appealing, and a reasonable jury
could conclude that Rogers was deterred from applying for a position at the new store.
Defendant’s argument on this point therefore fails.
Only full-time associates Rogers and Terry have raised an issue of fact regarding
whether they suffered an adverse employment action. The court will move on to
defendant’s next argument, confining its analysis to those two plaintiffs.9
ii. Similarly Situated Employees
Defendant also argues that plaintiffs Rogers and Terry cannot show that there
were other similarly situated employees outside of their protected class that were
treated more favorably. (DE # 67 at 40.) In response, plaintiffs argue that Norma
Humyak, Bonnie Lang, and Linda Elizondo, who are all white, were treated more

9

Defendant also argues that plaintiffs cannot make out a prima facie case of
discrimination because the evidence in this case does not show that they did
“‘everything within their power to apply for employment.’”(DE # 80 at 10 (quoting
Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978)). In Furnco, the Court held that a
group of plaintiffs had made out a prima facie case of discrimination by “proving they
were members of a racial minority; they did everything within their power to apply for
employment; Furnco has conceded that they were qualified in every respect for the jobs
which were about to be open; they were not offered employment . . . and the employer
continued to seek persons of similar qualifications.“ Furnco Const. Corp., 438 U.S. at 576.
Once again, there is no indication in Furnco that a plaintiff must make an absolute
showing that “they did everything within their power” to apply for a position, and
defendant has not directed the court to any cases holding that this is a strict
requirement. Even if this were a requirement, however, it would be up to the trier of
fact to make this determination with regard to the remaining plaintiffs.
38

favorably than Rogers and Terry because defendant sought out and assisted Humyak,
Lang, and Elizondo in transferring to the new store, but made no such effort for either
Rogers or Terry.10 (DE # 76 at 22-24.)
Norma Humyak was a Merrillville store associate that ended up submitting a
transfer request form and transferring to the new store. (DE # 67 at 14.) Plaintiffs assert
Jim Villegas, the acting store manager, spoke to Norma Humyak individually and
helped her complete the transfer request form. (DE # 76 at 23-24.) Plaintiffs direct the
court to testimony from plaintiff Owusu, that Jim Villegas explained the transfer
options to white employees better than he explained the transfer options to black
employees, and that Villegas specifically singled out several white employees, including
Humyak, to explain the process to. (DE # 76-5 at 2-3.)
In response, defendant does not argue that Humyak is not similarly situated to
Rogers and Terry. (See DE # 80 at 6, 11-14.) Defendant argues, however, that the
statements from Owusu, discussed above, are hearsay and cannot be considered on
summary judgment. (Id. at 6.) Hearsay is “an out-of-court statement offered to prove its
truth[.]” Stollings v. Ryobi Technologies, Inc., 725 F.3d 753, 761 (7th Cir. 2013); Federal

10

Defendant also argues that the full-time store associates’ discrimination claims
fail because there were no full-time positions available at the new store for the full-time
associates to fill. (DE # 67 at 38.) As plaintiffs point out (DE # 76 at 18-19), however, in a
series of emails between Myron and Hammerschmidt, it is made clear that the people
doing the hiring at the new store all agreed that Jackie Isaac could transfer to the new
store as a full-time associate. (DE # 76-11 at 5-6.) She did not ultimately transfer as a
full-time associate, but she was given special consideration for a full-time position while
plaintiffs were not. Defendant’s argument on this point therefore fails.
39

Rule of Evidence 801. Owusu, however, was not testifying as to any statements made
by Villegas or her coworkers; but rather, was testifying to her own first-hand
observations. This testimony is not hearsay. United States v. Foster, 701 F.3d 1142, 115354 (7th Cir. 2012).
Considering this testimony in the light most favorable to plaintiffs, Rogers and
Terry have raised a genuine issue of material fact as to whether a similarly situated
employee outside of their protected class was treated more favorably. Because
defendant makes no arguments other than that Rogers and Terry cannot make out a
prima facie case under the indirect method, defendant’s motion for summary judgment
is denied as it relates to these two plaintiffs. (DE # 67 at 35-41); Gaines v. K Five Const.
Corp., 742 F.3d 256, 262 (7th Cir. 2014) (plaintiff need only identify one comparator).
D. Plaintiffs’ Age Discrimination Claim
Plaintiffs Blakely, Brown, Rogers, Stone, Terry, and Mary Williams, who were all
over the age of 40 when the store closed, also allege that defendant discriminated
against them based on their age in violation of the ADEA. “In general, the ADEA
provides coverage for private, state, and federal employees who are forty years of age
and older . . . .” Levin v. Madigan, 692 F.3d 607, 615 (7th Cir. 2012); see also Guinto v.
Exelon Generation Co., LLC, 341 F. App’x 240, 245 (7th Cir.2009) (“The ADEA prohibits
an employer from discriminating against any person over 40 years of age because of the
individual’s age.”). As with a Title VII claim, a plaintiff may prove an age
discrimination claim under either the direct or indirect method. Cerutti, 349 F.3d at

40

1060. In this case, plaintiffs proceed under both the direct and indirect method of proof.
(DE # 76 at 25.)
Under the direct method of proof, a plaintiff must show through the
preponderance of direct and/or circumstantial evidence that the employer’s decision to
take an adverse job action against the plaintiff was motivated by an unlawful purpose.
Cerutti, 349 F.3d at 1061. The indirect method provides a burden-shifting framework in
which a plaintiff who establishes a prima facie case enjoys a presumption of
discrimination which requires the defendant to articulate a legitimate nondiscriminatory reason for its actions. McDonnell Douglas Corp., 411 U.S. at 802.
The direct method of proof utilizes both direct and circumstantial evidence that
goes straight to the issue of intent. Direct evidence of discrimination is, essentially, an
acknowledgment of discriminatory intent by the defendant or its agents, without
reliance on inference or presumption. Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th
Cir. 2000); see also Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001). By
way of example, the statement “I fired Judy because she was an old woman” proves
intentional discrimination against Judy based on her age; thus it is direct evidence.
Gorence, 242 F.3d at 762. In contrast, the statement “Old women are hard to deal with,”
without more, does not prove intentional discrimination against Judy based on her age,
and thus it is circumstantial evidence. Id. A plaintiff can survive summary judgment by
producing either type of evidence as long as it creates a triable issue on whether

41

discrimination motivated the employment action. Diaz v. Kraft Foods Global, Inc., 653
F.3d 582, 587 (7th Cir. 2011).
Under either the direct or indirect method of proof, a plaintiff must show that he
or she suffered an adverse employment action. Matthews v. Wisconsin Energy Corp. Inc.,
534 F.3d 547, 559 (7th Cir. 2008). Defendant first argues that these plaintiffs cannot show
that they suffered an adverse employment action because they did not submit transfer
request forms. (DE # 67 at 41.) In response, plaintiffs argue that they were deterred
from submitting transfer request forms due to defendant’s discriminatory practices.
(DE # 76 at 28.) As the court explained earlier in its opinion, plaintiffs Rogers and Terry
have both raised an issue of fact as to whether they suffered an adverse employment
action, and the remaining plaintiffs alleging age discrimination have not. Therefore,
defendant is entitled to summary judgment on plaintiffs Blakely, Brown, Stone, and
Mary Williams’s age discrimination claims.
Rogers and Terry, the remaining plaintiffs, proceed under both the direct and
indirect methods of proof. (DE # 76 at 25.) Plaintiffs concede that there is no direct
evidence of any derogatory remarks related to their age, and therefore, attempt to raise
an issue of fact under the direct method using circumstantial evidence. (Id.) Under the
direct method, circumstantial evidence:
“typically includes (1) suspicious timing, ambiguous oral or written
statements, or behavior toward or comments directed at other employees in
the protected group; (2) evidence, whether or not rigorously statistical, that
similarly-situated employees outside the protected class received
systematically better treatment; and (3) evidence that the employee was
qualified for the job in question but was passed over in favor of a person
42

outside the protected class and the employer’s reason is a pretext for
discrimination.”
Hutt v. AbbVie Products LLC, 757 F.3d 687, 691 (7th Cir. 2014) (citations and quotations
omitted). “A party may combine these various types of evidence to present a
convincing mosaic of circumstantial evidence from which a factfinder can make a
reasonable inference of discriminatory intent.” Id. at 691-92 (citations and quotations
omitted).
Plaintiffs contend that the following evidence would allow a reasonable jury to
infer discriminatory intent:
•

Rogers and Terry, who were 55 and 54 at the time the store closed,
respectively, made up (along with the other age discrimination plaintiffs
whose claims were noted above) the oldest group of employees at the
store. (DE # 76 at 25.)

•

Although four of the eight employees who transferred to the new store
were over the age of 40 (Linda Elizondo (58), Elnora Keith (40), Ne’Shaun
Turner (42), and Linda Gaboian (54)), both Keith and Turner were
substantially younger than Rogers and Terry. (Id. at 25-26.)

•

The average age of the eight employees that transferred to the new store
was 37.75. (Id. at 26-27.)

•

District manager Mike Batka told a store manager that she did not have
“the right caliber” of employees at her store. (DE # 76-21 at 2.)

•

Batka told a store manager that plaintiff Blakely was “dead weight.”
(Id. at 3.)

Evidence “showing that certain hiring practices correlated with a negative effect
on minority hiring, although relevant, will not by itself meet the ‘more likely than not’
standard for a claim of discrimination . . . .” Norman-Nunnery v. Madison Area Technical

43

Coll., 625 F.3d 422, 431 (7th Cir. 2010); see also Nichols v. S. Illinois Univ.-Edwardsville, 510
F.3d 772, 782 (7th Cir. 2007) (“[A] plaintiff may use pattern evidence of disparate
treatment even if that evidence is not rigorously statistical, although, standing alone, it
is insufficient evidence to withstand summary judgment.”). Thus although there is
evidence that the average age of the employees who transferred to the new store was
significantly lower than the age of either Rogers or Terry, and although two of the four
employees that were over the age of 40 were substantially younger than Rogers and
Terry, this evidence alone is insufficient to withstand summary judgment. Nichols, 510
F.3d at 782.
Plaintiffs are therefore left to rely on the two statements from District Manager
Mike Batka, noted above. The first statement that Batka made, that the Merrillville store
did not have the “right caliber” of employees, lends Rogers and Terry no support. The
statement by Batka comes from Angela Sales-Stephens’ deposition, and reads as
follows:
We [Sales-Stephens and Batka] were in the furniture department watching
Kia Thomas rearrange furniture, discussing hiring for the new Christmas
season coming up, discussing employees as they walked by when Mike
Batka told me I did not have the right caliber of employees in my store.
(DE # 76-21 at 2.) There is no evidence that this comment was directed at either Rogers
or Terry, or any of the other plaintiffs that alleged an age discrimination claim.
Additionally, there is no indication that this comment was in any way related to any of
the plaintiffs’ ages. See Hutt, 757 F.3d at 692 (7th Cir. 2014) (“But there is no evidence in

44

the record that Lozen or Westfall, or any Solvay employee, made any comments
relating to, or even referencing, Hutt’s age.”).
As for Batka’s other comment, that plaintiff Blakely was “dead weight[,]” there is
no indication that this comment had anything to do with Blakely’s age. Id.; see also
Larimer v. Dayton Hudson Corp., 137 F.3d 497, 500 (7th Cir. 1998) (“[Plaintiff] next relies
on an April 1992 incident when the district manager told her that she would not be
promoted above the position of area manager because she had ‘no young, fresh ideas.’
Again, we agree with the district court that this statement does not necessarily refer to
age.”). Therefore, Rogers and Terry have failed to supplement their statistical evidence
with additional evidence of discriminatory intent, and no reasonable jury could infer
discriminatory intent on these facts alone. Nichols, 510 F.3d at 782.
Rogers and Terry also proceed under the indirect method. (DE # 76 at 27.) In
order to establish a prima facie case of age discrimination under the direct method, a
plaintiff must show that “(1) she was a member of a protected class; (2) she was
performing her job satisfactorily; (3) she suffered an adverse employment action; and
(4) the employer treated similarly-situated employees outside of the protected class (in
this case, younger employees) more favorably.11 Hutt, 757 F.3d at 693. Defendant argues

11

Defendant does not dispute that Rogers and Terry were members of a
protected class or that they were performing their jobs satisfactorily. (DE # 67 at 41
n.18.)
45

that plaintiffs cannot show that defendant treated younger employees more favorably.12
(DE # 67 at 42.)
As the court noted earlier (see supra pp. 39-40), Rogers and Terry have presented
evidence that co-worker Norma Humyak, a twenty-seven year old Merrillville store
associate (DE # 76 at 28) that ended up submitting a transfer request form and
transferring to the new store, was treated more favorably than either Rogers or Terry.
Specifically, Rogers and Terry have presented evidence that Acting Store Manager Jim
Villegas singled out Humyak individually to explain her transfer options to her.
(DE # 76 at 23-24.)
In response, defendant argues that neither Terry nor Rogers can identify any
similarly situated individuals because none of the store associates that transferred to the
new store were full-time associates or received full-time positions, and there were no
full-time associates hired at the new store, (DE # 67 at 40, 42.) A similarly situated
comparator, however, need only be “similar enough to permit a reasonable juror to
infer, in light of all the circumstances, that an impermissible animus motivated the
employer’s decision.” Coleman, 667 F.3d at 841. Here, although Humyak and the other
store associates that transferred to the new store were part-time associates, and Rogers
and Terry were full-time associates, the difference between full-time and part-time

12

Defendant also argues that Rogers and Terry cannot show that they suffered an
adverse employment action. (DE # 67 at 41.) As the court noted earlier, both Rogers and
Terry have raised a genuine issue of material fact as to whether they suffered an
adverse employment action.
46

employment does not explain the difference in treatment between Humyak and Rogers
and Terry. Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009) (“[T]he comparators
must be similar enough that differences in their treatment cannot be explained by other
variables, such as distinctions in their roles or performance histories[.]”).
As noted earlier, plaintiffs have presented evidence that store Manager Jim
Villegas singled out certain employees, including Humyak, to explain the transfer
process to. (DE # 76-5 at 2-3.) In contrast, when Terry asked Villegas how the transfer
process worked, he told her that he did not know. (DE # 68-35 at 10.) Additionally,
Rogers was given inaccurate information at the store closing meeting that would have
made filling out a transfer request form extremely undesirable. (DE # 68-19 at 10-13.)
There is evidence that defendant treated Humyak, who is substantially younger than
either Rogers or Terry, more favorably, and the fact that Humyak was a part-time
employee and Rogers and Terry were full-time employees does not explain this
difference in treatment. Therefore, Rogers and Terry have raised a genuine issue of
material fact as to whether a similarly situated comparator outside of their protected
class was treated more favorably.
Because defendant makes no argument other than that Rogers and Terry cannot
make out a prima facie case of age discrimination, defendant’s motion for summary
judgment on Roger and Terry’s age discrimination claim must be denied. (DE # 67 at
41-42.)

47

V.

Conclusion
For the foregoing reasons, defendant’s motion (DE # 66) for summary judgment

is GRANTED IN PART AND DENIED IN PART. Defendant’s motion for summary
judgment is granted on all claims by plaintiffs Leola Nancy Stone, Lorine Blakely,
Lillian Brown, Mary Williams, Tierney Lokey, Angela Walker, and Marlo Williams.
Defendant’s motion for summary judgment is denied as to all claims by Mabel Owusu,
Kia Thomas, Julia Rogers, and Verretta Terry.
SO ORDERED.
Date: June 17, 2015
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT