DUFFY v. INDIANA JUVENILE JUSTICE TASK FORCE et al
Filing
86
ORDER GRANTING 57 Motion for Summary Judgment; Defendants are entitled to summary judgment on both claims. Defendants Motion [Docket No. 57] is GRANTED. Final judgment shall enter accordingly. (S.O.). Signed by Judge Sarah Evans Barker on 6/9/2011. (CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
Carlette Marie Duffy,
)
)
)
Plaintiff,
)
)
vs.
)
)
Indiana Juvenile Justice Task Force,
Executive Director William Glick, Program )
)
Director Joann Helferich,
1:09-cv-0611-SEB-DML
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on a Motion for Summary Judgment [Docket No.
57] filed by Defendants Indiana Juvenile Justice Task Force (“IJJTF”), IJJTF Executive
Director William Glick, and IJJTF Program Director Joann Helferich (hereafter,
“Defendants”) against Plaintiff Carlette Marie Duffy, the former IJJTF Community
Resource Coordinator. Plaintiff opposes Defendants’ motion. For the reasons detailed
herein, Defendants’ motion is GRANTED.
Factual Background1
1
While we accept the supported facts offered in Plaintiff’s responsive briefing as true,
these facts are few and in any event fail to address the vast majority of the facts recited by
Defendants. Indeed, as Defendants point out in their reply brief, Plaintiff’s response contains
only seven “disputed facts for consideration” and eleven “material facts not in dispute” as
compared to the 23 paragraphs of facts included in Defendants’ opening brief. Plaintiff’s vague
statement that she “disputes and denies all facts” in Defendants’ brief is wholly deficient under
(continued...)
Aftercare for Indiana through Mentoring (“AIM”) is a program that provides
mentoring, education, career support and other services to incarcerated youths to ease the
transition back into the community. Glick Aff. ¶ 4. At the time Plaintiff began her
employment at AIM in 2003, the program was operated by Indiana University-Purdue
University at Indianapolis (“IUPUI”). Duffy Aff. ¶¶ 4-5. Plaintiff was the only AfricanAmerican coordinator in the AIM program throughout the course of her employment.
Duffy Aff. ¶ 16; Conrad Aff. ¶ 16. Sometime in the Spring of 2007, as the AIM program
began to grow beyond the resources available to it at IUPUI, IJJTF received a grant from
the Lilly Endowment to begin operating the program.2 Duffy Dep. at 47-48; Glick Aff. ¶
7.
Brenda Adams-Turk (hired by IJJTF in June 2007 as Fiscal and Training
Coordinator), Theresa Brady (hired by IJJTF to continue the Coordinator position she
held when AIM was operated by IUPUI), and Plaintiff (hired by IJJTF in August 2007 as
AIM Community Resource Coordinator) were among those staff members that IJJTF
1
(...continued)
either Federal Rule of Civil Procedure 56 or Southern District of Indiana Local Rule 56.1. To
avoid summary judgment, a plaintiff must “set out specific facts showing a genuine issue for
trial.” Fed. R. Civ. P. 56(e)(2). “A court is not required to ‘scour the record in search of
evidence to defeat a motion for summary judgment.’” Ritchie v. Glidden Co., 242 F.3d 713, 723
(7th Cir. 2001) (quoting Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.
1996)). Thus, the Court shall consider the unaddressed facts as undisputed for purposes of this
motion, as provided for by Fed. R. Civ. P. 56(e)(2).
2
IJJTF monitors jails and other detention-type facilities, provides training and technical
assistance to Indiana counties, and educates the public on issues affecting juveniles to ensure
compliance with the Juvenile Justice and Delinquency Prevention Act of 1974. Glick Aff. ¶ 3.
2
absorbed from the IUPUI AIM program during the transition. Joann Helferich (hired by
IJJTF in July 2007 as interim Program Director) from the office of the Marion County
Public Defender and Melissa Conrad (hired by IJJTF in Summer, 2007 as the AIM
Operations Coordinator) from the office of Marion County Adult and Child Services also
joined the AIM program when it transitioned into IJJTF management.
As part of the transition of the AIM program, IJJTF Executive Director William
Glick met with AIM staff to inform them that the transfer would not negatively affect the
terms of their employment and, according to Plaintiff, that each staff member would at
some later time receive an increased salary at an amount to be determined at a later time.
Duffy Dep. at 50; 52-53; see also Hurst Aff. ¶ 4. Glick also discussed the organizational
structure of the AIM program and stated that Conrad, Adams-Turk, and Plaintiff were
expected to occupy the same “level” on the organizational chart.3 Duffy Aff. ¶ 18;
Conrad Aff. ¶ 7; Hurst Aff. ¶ 5. All three of these individuals were scheduled to report to
Dr. Roger Jarjoura. Id. None of the coordinators would supervise any of the others.
Duffy Aff. ¶ 15; Conrad Aff. ¶¶ 11-12; Hurst Aff. ¶ 6.
As Community Resource Coordinator, Plaintiff’s primary responsibilities included
maintaining and updating a community resource database, managing AmeriCorps
members, and administering the Youth Employment Services (“YES”) program.
3
It is unclear whether an actual organizational chart ever existed or was utilized during
this meeting or if Glick was simply referencing a chart to make his point. In any event, neither
party has designated any such chart as an exhibit, making this distinction of no import to our
analysis.
3
Helferich Aff. ¶ 6; Duffy Dep. at 85-86; Second Aff. of William Glick, Att. 1
(Community Resource Coordinator Job Description).4 The YES program provided
funding to community organizations, including AIM, allowing them to issue vouchers to
youth for services or items needed to overcome obstacles in education and employment.
Duffy Dep. at 91; 97. Plaintiff collected information from youths seeking such vouchers,
submitted their voucher requests to Helferich, issued vouchers to students, and
maintained YES program files. Duffy Dep. at 92-100; Glick Aff. ¶ 23. According to the
Community Resource Coordinator “Job Description” submitted by Defendants, the
position required a minimum education of an associate’s degree and a year of experience
working with youth and knowledge regarding community resources. Second Glick Aff.,
Attachment 1.
According to Plaintiff, her duties often overlapped with those of the other
coordinators regardless of the differences in their titles. Duffy Aff. ¶¶ 11, 13. Conrad
testified by affidavit that she worked with Plaintiff and shared certain job duties with her.
Conrad Aff. ¶ 9. For instance, both Conrad and Plaintiff acted as a liaison with the adult
and juvenile courts and the Department of Corrections, assisted with information and
documentation in connection with various grants, assisted with and coordinated activities
4
In Plaintiff’s Sur-Reply, she asks that we strike Glick’s Second Affidavit because it was
filed after the Defendants’ opening brief, which she deems “inappropriate.” Sur-Reply at 6. We
are unaware of any authority supporting Plaintiff’s position but, more importantly, Plaintiff had
the opportunity to refute the affidavit by virtue of the Court’s Order granting her leave to file a
sur-reply. Therefore, she cannot now maintain that she was in any way prejudiced by our
allowing the affidavit. Her request is, therefore, denied.
4
with the AIM Training Institute, and wrote grants. Duffy Aff. ¶ 14. The Program
Operations Coordinator “Job Description” submitted by Defendants references the fact
that the primary purpose of that position was “management of the programs supporting
the vision and function of AIM, its clients, volunteers, and staff in the Indianapolis
Region.” Glick Aff., Attachment 3. The description also provides that a minimum of an
associate degree or bachelor’s degree, as well as 2-3 years of supervisory experience,
knowledge of the justice system, and youth services was preferred. Id. At times, Dr.
Jarjoura referred Conrad to Plaintiff because Conrad was new to AIM at the time and
unfamiliar with the program and Jarjoura indicated that Plaintiff knew “everything.”
Conrad Aff. ¶ 10.
In November 2007, Helferich noticed that the number of hours that AIM program
staff and the AmeriCorps members worked directly with AIM clients (“contact hours”)
had decreased dramatically in the preceding months. Helferich Aff. ¶ 7. Helferich
requested that Conrad and Plaintiff remedy this problem by working more directly with
an Indiana Department of Corrections juvenile facility housing AIM clients. Id.
Helferich also specifically directed Plaintiff to monitor and work directly with four
AmeriCorps members. Id. Neither Plaintiff nor Conrad received an immediate pay
increase, change in title, or any other change in their conditions of employment as a result
of this additional duty. Id. Helferich did, however, initiate a request that Glick approve
an increase in Plaintiff’s salary from $31,686.00 to $35,000, as a result. Id. ¶ 8. Glick
approved this request on December 6, 2007; Plaintiff’s salary was set to increase effective
5
January 1, 2008. Glick Aff. ¶ 29. No other AIM staff members received a pay increase
for 2008 as substantial as Plaintiff. Glick Aff. ¶ 29; Duffy Dep. at 200. Rather, the other
staff members received only a 3% cost of living increase at that time. Glick Aff. ¶ 29.
Also, as of November 2007, Plaintiff learned from Helferich that she was the only
coordinator in the Indianapolis office still earning an annual salary of $31,686 (the same
salary she received prior to the AIM transition), as opposed to the $35,000 salary that the
other coordinators were receiving.5 Duffy Aff. ¶ 20; Duffy Dep. Ex. 18.
On December 13, 2007, Plaintiff prepared a memorandum which she sent to
Executive Director Glick, Program Director Helferich and IJJTF Director of Business
Services Victoria Rempel detailing the reasons explaining the basis for her anticipated
increase in her salary, and posing the following questions:
Why did I not receive the appropriate salary at the time of hire
from the Indiana Juvenile Justice Task Force?
When will I receive the appropriate increase?
Will this increase be retroactive to August 29, 2007?
If the increase is not retroactive to August 29, 2007, why?
Duffy Dep. Ex. 18.
Helferich responded to Plaintiff’s memorandum on December 20, 2007, explaining
5
Theresa Brady, AIM’s North Region Coordinator who worked in the South Bend office,
also continued to receive the $31,686 salary throughout 2007. Glick Aff. ¶ 26. Brady did not
receive the pay raise that Plaintiff was granted at the end of 2007. Id.
6
that Plaintiff had received the appropriate salary at the time of hire and denying that
promises of an increased salary were ever made to her. Duffy Dep. Ex. 20. She also
explained that although Plaintiff’s salary may not appear to have increased, the IJJTF
calculated the value of various employment benefits provided to its employees as part
their total compensation. She speculated that because IJJTF paid all of its employees’
benefits, Plaintiff’s compensation may have, indeed, been higher than it was before AIM
and Plaintiff were transferred from IUPUI. Id. Helferich further informed Plaintiff that
any increases in her salary, which were currently under consideration, would be effective
January 1, 2008, which would make any salary increase not retroactive. Id.
On December 21, 2007, Plaintiff sent an amended grievance regarding her salary
to IJJTF’s Director of Business Services, Victoria Rempel. Duffy Dep. Ex. 21. Rempel
told Plaintiff that the reason her salary was not increased at the time of hire was due to a
lack of funding. However, she also informed Plaintiff that she would receive an increase
in her salary to $35,000, effective January 1, 2008. Duffy Dep. Ex. 22.
On December 31, 2007, Plaintiff sent a further grievance to Glick regarding her
dissatisfaction with her salary and the responses she had received from Helferich and
Rempel. Duffy Dep. Ex. 23. Plaintiff questioned why, if Rempel’s explanation regarding
initial lack of funding was true, “was another employee hired at the same level as my
position in June with increased pay.” Id. Plaintiff also expressed dissatisfaction with the
January 1, 2008 salary increase in light of the fact that “others of equal employment
status, who already receive the increased pay rate, will then also receive an additional 3%
7
cost of living increase” at that time. Id.
On January 4, 2008, Glick responded to Plaintiff that any reference by her to any
other employee’s salary and total compensation would have to be unauthorized, because
such information was confidential. Glick Aff. Attachment 7. Further, he instructed
Plaintiff that her total compensation exceeded her salary “by many thousands of dollars,”
in light of the fact that IJJTF paid 100% of its employees’ benefits. Id. Glick stated that
Plaintiff’s reference to another employee who performed similar job duties was “factually
incorrect” because compensation levels were “whenever possible . . . based on . . . a
combination of experience, job responsibilities, an employee’s place in the chain-ofcommand, education, and special skills.” Id. Finally, he denied Plaintiff’s request for an
additional cost-of-living salary increase of 3% in light of the “unprecedented” salary
increase Plaintiff received effective January 1, 2008. Id.
In January 2008, the IJJTF learned that the Indianapolis Private Industry Council
(“IPIC”), who administered the YES program, planned to conduct an audit of IJJTF’s
YES program files to ensure compliance with IPIC standards. Duffy Dep. at 111, 114115. Plaintiff assured Helferich that the files would be prepared to the best of her ability
by the time the audit was conducted two months later, in March 2008. Id. at 112.
However, despite these assurances, Helferich testified that Plaintiff was “still hurriedly
assembling the files in the moments before the auditor arrived.” Helferich Aff. ¶ 11. The
audit results “identified findings for each of the 6 files reviewed, plus two observations.”
Helferich Aff., Attachment 2. The results instructed AIM that it must provide IPIC with a
8
response identifying the corrective actions and procedures that IJJTF would implement in
response to the findings. Id. Helferich and Glick were, therefore, disappointed with the
results of the audit, particularly in light of positive audit results in the past relating to
other programs administered by IJJTF. Helferich Aff. ¶ 11.
In early April following receipt of the audit results, Helferich directed Plaintiff to
focus her efforts on bringing the YES files into compliance with IPIC’s standards and
updating the community resource database. Duffy Dep. Ex. 11-12. Plaintiff responded
that she would be unable to perform these tasks by the deadline imposed by Helferich.
Duffy Dep. Ex. 12. Based on this exchange, Helferich determined that Plaintiff would no
longer have responsibility for monitoring AmeriCorps members. Helferich Aff. ¶ 13.
Helferich testified that her decision to direct Plaintiff to focus on the YES files and
community resource database was based in part on her observation of and complaints
from coworkers regarding Plaintiff’s habit of distracting herself and others from their
work with personal conversation. Helferich Aff. ¶ 13. Still, despite Helferich’s
instruction, she testified that her review of the YES files in May and June 2008 revealed
that Plaintiff was not maintaining adequate documentation. Id. ¶ 15.
Also in Spring 2008, Helferich directed Plaintiff and AIM Volunteer Coordinator
Amanda Aird to complete time studies of their work in hopes of understanding the
number of hours spent by AIM staff on various grant-funded activities. Helferich Aff. ¶
16. Specifically, Plaintiff and Ms. Aird were to record their work in fifteen minute
increments for several weeks, and both individuals completed these time studies.
9
Helferich Aff., Attachments 3-4.
In April 2008, Helferich met with Plaintiff and Ms. Aird. Helferich Aff. ¶ 17.
Plaintiff brought what appeared to be a voice-activated recorder to the meeting but
Helferich instructed her not to record their discussion. Helferich Aff. ¶ 17. On numerous
occasions between April and October 2008, according to Helferich, Plaintiff was seen
“hiding something under her shirt or opening her desk drawer during conversations.” Id.
at ¶ 18. When Helferich asked Plaintiff whether was she recording conversations with
IJJTF staff and reminded her that such recording was prohibited, Plaintiff denied that she
had ever done so. Id.
Upon arriving at the AIM office on the morning of October 24, 2008, Helferich
discovered the door unlocked, the alarm unarmed, and electronic equipment on the floor,
which caused her to conclude that a break-in had occurred. Id. ¶ 19. After contacting
security staff, Helferich testified that she visually inspected all of the AIM offices, and
when she entered Plaintiff’s office, she “found a plainly visible small voice activated
mini-cassette recorder.” Id. ¶¶ 20-21. Because of her prior concerns regarding the
possibility of Plaintiff’s practice of recording conversations at work, Helferich played a
portion of the tape in the recorder only to discover own voice had been recorded. Id.
Helferich then brought the recorder to the attention of Glick, who with Helferich
reviewed the tapes and discovered numerous workplace conversations preserved there.
Id.
On October 27, 2008, Glick met with Helferich, Rempel and Plaintiff, during
10
which meeting Plaintiff acknowledged that she had recorded conversations among the
IJJTF staff, despite Helferich’s instruction not to do so. Id. ¶ 22. Glick therefore
suspended Plaintiff with pay pending further investigation. Glick Aff. ¶ 37.
Glick concluded that Plaintiff’s tape recordings warranted her termination of
employment by IJJTF. Glick Aff. ¶ 37. According to Glick, he considered Plaintiff’s
failure to properly maintain the YES files as an additional factor warranting the
termination decision. Id. Plaintiff received a termination letter from IJJTF on October
30, 2008. Duffy Dep. at 174.
Legal Analysis
I.
Standard of Review
Summary judgment is appropriate when the record shows that there is “no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Disputes concerning material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material
fact exist, the court construes all facts in a light most favorable to the non-moving party
and draws all reasonable inferences in favor of the non-moving party. See id. at 255.
However, neither the “mere existence of some alleged factual dispute between the
parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
11
(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of
Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
The moving party “bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.
The party seeking summary judgment on a claim on which the non-moving party bears
the burden of proof at trial may discharge its burden by showing an absence of evidence
to support the non-moving party’s case. Id. at 325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle
for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th
Cir. 1994). Therefore, after drawing all reasonable inferences from the facts in favor of
the non-movant, if genuine doubts remain and a reasonable fact-finder could find for the
party opposing the motion, summary judgment is inappropriate. See Shields Enterprises,
Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of
Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be
unable to satisfy the legal requirements necessary to establish his or her case, summary
judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Ziliak v.
AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one
essential element “necessarily renders all other facts immaterial.” Celotex, 477 U.S. at
323.
The summary judgment standard is applied rigorously in employment
12
discrimination cases, because intent and credibility are such critical issues and direct
evidence is rarely available. Seener v. Northcentral Technical Coll., 113 F.3d 750, 757
(7th Cir. 1997); Wohl v. Spectrum Mfg., Inc., 94 F.3d 353, 354 (7th Cir. 1996). To that
end, we carefully review affidavits and depositions for circumstantial evidence which, if
believed, would demonstrate discrimination. However, the Seventh Circuit has made
clear that employment discrimination cases are not governed by a separate set of rules,
and thus remain amenable to disposition by summary judgment so long as there is no
genuine dispute as to the material facts. Giannopoulos v. Brach & Brock Confections,
Inc., 109 F.3d 406, 410 (7th Cir.1997).
II.
Discussion
Defendants have asserted that they are entitled to a grant of summary judgment
with regard to Plaintiff’s claims for both race discrimination and retaliation. We discuss
these claims in turn below.
A.
Plaintiff’s Race Discrimination Claim
Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A
plaintiff may prove discrimination under Title VII with either direct evidence of
discrimination or indirectly through the burden-shifting analysis established in
McDonnell Douglas v. Green, 411 U.S. 792 (1973). Scaife v. Cook County, 446 F.3d
13
735, 739 (7th Cir. 2006). Plaintiff has presented no evidence nor has she developed any
argument relating to the direct method of proving discrimination and, thus, we shall
proceed with our analysis under the indirect method as discussed in McDonnell Douglas.
Under the McDonnell Douglas framework, a plaintiff must begin by establishing
a prima facie case of discrimination. If one can be established, the burden shifts to the
defendant to articulate a nondiscriminatory reason for the actions it took against the
plaintiff. If the defendant can offer a legitimate, nondiscriminatory reason for the
employment decision, the burden reverts to the plaintiff to show that there is a genuine
dispute of material fact that the proffered reason for the employment action is pretextual.
Nese v. Julian Nordic Constr. Co., 405 F.3d 638, 641 (7th Cir. 2005). The traditional
prima facie case requires a showing by the plaintiff: (1) that she was part of a class of
persons protected by Title VII; (2) that she was meeting his employer’s legitimate job
expectations; (3) that she suffered an adverse employment action; and (4) that similarlysituated individuals outside his protected class were treated more favorably. See Elkhatib
v. Dunkin Donuts, Inc., 493 F.3d 827, 830 (7th Cir. 2007). Defendants here challenge
Plaintiff’s ability to establish the fourth element of her prima facie case because she has
not been shown to have been similarly situated to the two former coworkers she has
identified as comparable, namely, Fiscal and Training Coordinator Brenda Adams-Turk
and Operations Coordinator Melissa Conrad.6 Defendants further assert that, even if
6
Defendants also contend that Plaintiff was treated identically to (or better than) another
(continued...)
14
Plaintiff had succeeded in establishing her prima facie case, she has no evidence that
Defendant’s legitimate, non-discriminatory reasons for its pay decisions was a pretext for
race discrimination. For the reasons explained below, we must agree with Defendants in
both respects.
1.
Plaintiff’s Prima Facie Case
As mentioned above, to establish her prima facie case (and avoid summary
judgment), Plaintiff must show that similarly-situated individuals outside her protected
class were treated more favorably. More specifically, in this context, Plaintiff must show
that similarly-situated individuals who were not African-American received a higher
salary than she. Plaintiff identifies two persons she says were similarly situated to her,
that is, Fiscal and Training Coordinator Brenda Adams-Turk and Operations Coordinator
Melissa Conrad, at the time the AIM program transitioned from IUPUI to IJJTF
operation. It is undisputed that these two individuals were not African American and that
they initially received higher salaries than Plaintiff. Thus, the Court must determine only
whether these two individuals were similarly situated to Plaintiff.
“To demonstrate that a comparison individual is similarly situated to a plaintiff, the
plaintiff is required to produce evidence that the comparison employee is ‘directly
comparable to her in all material respects.’” Squibb v. Mem’l Med. Ctr., 497 F.3d 775,
6
(...continued)
coworker, with whom she was similarly situated, namely, South Bend/North Region Coordinator
Theresa Brady.
15
788 (7th Cir. 2007) (quoting Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th
Cir. 2002)). This analysis requires the court to examine all the relevant factors, which
“most often include whether the employees (i) held the same job description, (ii) were
subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had
comparable experience, education, and other qualifications – provided the employer
considered these latter factors in making the personnel decision.” Ajayi v. Aramark Bus.
Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2004). This analysis inevitably varies from case
to case and requires the Court to take a “flexible, common-sense approach” dependent on
the context of the case before it. McGowan v. Deere & Co., 581 F.3d 575, 579-80 (7th
Cir. 2009). “Regardless of the context, however, the purpose of the test remains the
same: to discern whether there are sufficient common factors between the plaintiff and
another employee to allow for a meaningful comparison in order to divine whether
discrimination was involved in an employment decision.” Id.
a.
Brenda Adams-Turk
Defendants contend that Plaintiff cannot establish that she and Adams-Turk were
similarly situated based on their significantly different duties. As described by Plaintiff,
Adams-Turk handled “anything financially related to the AIM program, as far as pay, any
contract requirements, grant requirements. The fiscal requirements for any grants, she
handled that information. And then she also assisted in the coordination of the AIM
Institute [an AIM training program offered to adults that were going to work with
juveniles].” Duffy Dep. 55-56. Plaintiff further admitted that her position at IJJTF was
16
“significantly different” from the position held by Ms. Adams-Turk. Id. at 57.
Defendants maintain that the respective levels of education and experience between
Plaintiff and Ms. Adams-Turk also render them not comparable. Def.’s Mem. at 16-17.
Plaintiff does not respond directly to Defendants’ arguments regarding the
differences in duties between the positions she held at IJJTF and that of Ms. Adams-Turk.
Rather, she rejoins that Adams-Turk was similarly situated to her at the time of the AIM
transition, based Glick’s statement that he intended Plaintiff and Adams-Turk to be on the
same “level,” made during the pre-transition meeting discussed above.7 Id. at 7, 9.
Plaintiff cites her own affidavit as well as the affidavits of Conrad and Heath Hurst (a
former AIM Director who left the program when it transitioned to IJJTF) to verify that
Glick actually made this statement. See Duffy Aff. ¶ 18; Conrad Aff. ¶ 7; Hurst Aff. ¶ 5.
She references in addition that Glick further indicated that Plaintiff, Adams-Turk and
Conrad were all to report to Dr. Jarjoura. Duffy Aff. ¶ 18; Conrad Aff. ¶ 7.
Our view of Glick’s statements regarding the organizational chart and that all three
employees would report to Dr. Jarjoura less than convincing in terms of establishing that
Plaintiff was similarly situated to Ms. Adams-Turk. Organizational charts are
demonstrative tools utilized to explain the relationships among employees, including the
7
Plaintiff also argues that she was similarly situated to Brenda Adams-Turk based on the
fact that they held the same job title prior to the transition of the AIM program. Pl.’s Resp. at 9.
However, she has cited no evidence in support of this contention. Even if true, however, the fact
that Adams-Turk and Plaintiff held the same positions prior to the transition matters little, given
Plaintiff’s testimony that all of the AIM positions were “new” when the program transitioned to
IJJTF. Duffy Dep. at. 57.
17
hierarchy of supervisor/supervisee within an organization. No surprise, therefore, that
Plaintiff, Adams-Turk, and Conrad appear on the same level of any organization chart,
given their shared supervisor. The single fact that all three employees reported to Dr.
Jarjoura fails to establish that the employees were “directly comparable . . . in all material
respects,” Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002), and, in
fact, Plaintiff’s admission regarding the significant differences between her duties and
those of Ms. Adams-Turk undermines any contrary conclusion. Ms. Adams-Turk’s
education and experience also support a finding that she was not similarly situated to
Plaintiff. As Defendants note, Ms. Adams-Turk had considerable experience performing
the various finance-related functions that IJJTF found valuable for its Fiscal and Training
Coordinator. Glick Aff. ¶¶ 12-14, Attachment I. Plaintiff apparently lacked any
comparable specialized experience. Indeed, Plaintiff has not attempted in any fashion to
compare her education and/or experience to those of Ms. Adams-Turk at all, instead,
maintaining that her education and experience compared to Ms. Adams-Turk should not
be considered at all because IJJTF never informed her that it would rely on those factors
in determining pay. Glick testified that he considered the “individual’s experience, job
responsibilities, place in the chain-of-command, education, and special skills,” when
determining rates of pay for the AIM staff. Glick Aff. ¶ 24. Whether or not Plaintiff was
aware of that assessment is immaterial. See Randall v. Rolls-Royce Corp., 742 F. Supp.
2d 974, 989 (S.D. Ind. 2010 (Barker, J.). Clearly, Plaintiff has failed to establish that she
and Ms. Adams-Turk were in fact similarly situated employees of IJJTF.
18
b.
Melissa Conrad
Defendants next argue that Plaintiff cannot establish that Conrad and she were
similarly situated due to their significantly different duties. Defs.’ Mem. at 17-18.
Moreover, as with Ms. Adams-Turk, Defendants note that the respective levels of
education and experience of Plaintiff and Conrad render them incomparable.8 Def.'s
Mem. at 18.
Plaintiff rejoins that her duties significantly overlapped with those performed by
Ms. Conrad. These overlapping duties, according to Plaintiff, included serving as liaison
between IJJTF and the adult and juvenile courts and the Department of Corrections,
assisting with information and documentation in connection with various grants, assisting
with and coordinating activities in the AIM Training Institute, and writing grants. Duffy
Aff. ¶ 14. Ms. Conrad testified that she initially relied on Plaintiff and other AIM
coordinators “to help familiarize [her] with the program and various job duties.” Conrad
Aff. ¶ 8. Plaintiff again provides no response to Defendants’ argument regarding the
respective levels of education and experience between Plaintiff and Conrad.
Plaintiff again fails in her attempt to establish that she was similarly situated to
8
Defendants claim that Conrad received a higher salary than Plaintiff because Conrad,
unlike Plaintiff, was an “outside hire,” who negotiated her starting salary. Glick Aff. ¶ 25.
Plaintiff denies that Conrad negotiated her salary based on Conrad’s testimony that she was told
by Helferich to expect a salary based on what Helferich had learned from Plaintiff regarding
what the current AIM employees anticipated that salaries would be, once the AIM transition had
occurred. Conrad Aff. ¶ 4. We find this factual dispute (involving what is essentially, a reason
for the disparate pay) irrelevant for purposes of determining whether Conrad and Plaintiff were
similarly situated.
19
Conrad. To buttress her assertion that she and Conrad performed some of the same
duties, Plaintiff has relied entirely upon her own affidavit. Such reliance is permissible
provided that the affidavit “meet[s] the usual requirements, such as being based on
personal knowledge and setting forth specific facts showing that there is a genuine issue
for trial.” McGowan, 581 F.3d at 580. Here, Plaintiff’s testimony is at best vague as to a
few overlapping duties cited by her as having been shared by her with Conrad. This
meager mustering of evidence is clearly insufficient to establish a genuine issue of
material fact regarding whether the two women were similarly situated. It is undisputed
that Conrad and Plaintiff had different job titles and, according to the documentary
evidence proffered by Defendants, different primary duties. Compare Second Glick Aff.,
Attachment 1 (Community Resource Coordinator Job Description) with Glick Aff.,
Attachment 3 (Program Operations Coordinator Job Description). Without more, the
single fact that Conrad and Plaintiff collaborated on certain tasks or duties on occasion
won’t cut it in terms of providing a basis upon which a reasonable jury could conclude
that the two employees were similarly situated. Furthermore, as discussed above in
relation to Ms. Adams-Turk, Plaintiff has entirely failed to establish that she and Conrad
had comparable credentials. Conrad’s “experience, education and qualifications” are
highly relevant to the Court’s inquiry into whether she and Plaintiff were “directly
comparable . . . in all material respects.” Squibb, 497 F.3d at 788. Therefore, we hold
that Plaintiff’s failure to establish that she and Conrad were similarly situated defeats her
prima facie case showing of race discrimination.
20
2.
Plaintiff’s Claim of Pretext
Even if Plaintiff had established a prima facie race discrimination claim, she has
failed to satisfy her burden to show that the IJJTF’s purported reason for paying Plaintiff
less than Conrad or Adams-Turk was pretextual, i.e. “a dishonest explanation, a lie rather
than an oddity or an error.” Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681,
685 (7th Cir. 2000) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147-148 (2000)). The Seventh Circuit has held on numerous occasions that pretext can
be established by a showing that either a discriminatory reason more likely motivated the
employer to pay the plaintiff less or the proffered reason for the employer’s payment
decision is not worthy of belief. See Simmons v. Chi. Bd. of Educ., 289 F. 3d 488, 492
(7th Cir. 2002).
Plaintiff’s pretext theory is based on an assertion that the responses she received
from Helferich, Rempel and Glick in response to her inquiries regarding her pay provided
inconsistent justifications for IJJTF’s pay decisions.9 Pl.’s Resp. at 11-12. Plaintiff
points out that Helferich told her that she received the salary that she was supposed to
receive at the time AIM transferred to IJJTF. Helferich Aff., Attachment 1. But Rempel
9
Plaintiff also asserts that it is “very telling” that she anticipated that her salary would be
$35,000 and that Conrad was paid that amount when she accepted her position with the IJJTF. It
is unclear to the Court what Plaintiff intends by this statement but, in any event, we do not find
that this fact, assuming it is true, establishes any lie on the part of any Defendant. Likewise, the
fact that Plaintiff was the only African-American AIM coordinator was, at most, unusual and in
any event insufficient on its own to establish pretext. See Kulumani, 224 F.3d at 684 (“A
‘pretext for discrimination’ means more than an unusual act; it means something worse than a
business error; ‘pretext’ means deceit used to cover one’s tracks.”).
21
told Plaintiff that she did not receive an increase in pay at the time AIM transferred to
IJJTF because there was no additional funding for Plaintiff’s position. Rempel Aff.,
Attachment 2. And Glick explained to Plaintiff that her initial salary was based upon “a
combination of experience, job responsibilities, an employee’s place in the chain-ofcommand, education and special skills.” Glick Aff. Attachment 7.
Although, “[s]hifting and inconsistent explanations [for an adverse employment
action] can provide a basis for a finding of pretext, . . . the explanations must actually be
shifting and inconsistent to permit an inference of mendacity.”
Shuster v. Lucent Techs,
Inc., 327 F.3d 569, 577 (7th Cir. 2003)(citing Rand v. CF Indus., Inc., 42 F.3d 1139, 1146
(7th Cir. 1994)). A review of the record before us discloses that the cited variations in the
explanations offered by Helferich, Rempel, and Glick, respectively, are insufficient to
create an issue of material fact with regard to Defendants’ justification for Plaintiff’s
initial salary level determination. Indeed, we find no inconsistency between Helferich’s
response that Plaintiff had received the salary she was “supposed to” and Rempel’s
additional explanation that no additional funding had been available for an increased
salary at the time Plaintiff was hired. Furthermore, as Defendants point out, Glick’s
additional explanation that compensation levels “whenever possible . . . [are] based on . .
. a combination of experience, job responsibilities, an employee’s place in the
chain-of-command, education, and special skills” came in response to an additional
question from Plaintiff regarding a person whom Plaintiff believed to be similarly situated
to her. There is nothing inconsistent or conflicting among those reasons provided by
22
Defendants to Plaintiff. Thus, no genuine issue of material fact exists with regard to
pretext. See e.g., Johnson v. Nordstrom, Inc., 260 F.3d 727, 733-34 (7th Cir. 2001).
Furthermore, we note that, although Plaintiff failed to advance any arguments
relating to other theories of pretext, our own review of the record revealed no evidence to
support a finding that Defendants’ decision to delay Plaintiff’s salary increase until
January, 2008 was based on reasons other than those provided to her at the time or that
Defendants’ decision had anything to do with Plaintiff’s race. Indeed, in light of Glick’s
testimony that Caucasion Coordinator, Theresa Brady, received the same salary objected
to by Plaintiff (Glick Aff. ¶ 26), we find the evidence overwhelming in establishing that
Plaintiff’s salary determination was not based on race. See Johnson v. Indopco, Inc., 887
F. Supp. 1092, 1099 (N.D. Ill. 1995) (finding that facts that African-American counterpart
earned more than African-American plaintiff, and Caucasian counterpart earned less than
plaintiff undercut plaintiff’s case for unequal pay based on race discrimination).
B.
Plaintiff’s Retaliation Claims
Plaintiff’s final claim for relief is predicated on various acts by Defendants that
were violative of Title VII’s prohibition against discrimination towards employees who
oppose unlawful employment practices. 42 U.S.C. § 2000e-3(a). “An employee bringing
a retaliation claim may use either the ‘direct’ or ‘indirect’ methods of proof to support her
claim.” Gates v. Caterpillar, Inc., 513 F.3d 680, 686 (7th Cir. 2008) (citing Mannie v.
Potter, 394 F.3d 977, 983 (7th Cir. 2005)). To successfully establish retaliation under the
direct method of proof, Plaintiff must (1) offer evidence that she engaged in a statutorily
23
protected activity, (2) that Defendants subjected her to an actionable adverse employment
action and (3) that a causal connection exists between the two events. Id. (citing
Treadwell v. Office of Ill. Sec'y of State, 455 F.3d 778, 781 (7th Cir. 2006)).
Plaintiff asserts that Helferich began a pattern of criticizing her job performance,
directing her not to communicate with certain individuals, making derogatory comments
about her, and requiring her to engage in a time study only after she had raised concerns
regarding her annual salary as compared with other AIM coordinators. Pl.’s Resp. at 13.
Plaintiff also maintains that the employees she supervised were subjected to stricter
requirements than other employees following her complaints. Duffy Aff. ¶ 24. Notably,
however, Plaintiff has not argued that her termination was retaliatory.
Defendants maintain that Plaintiff has failed to establish that any of these alleged
actions constitute actionable adverse employment actions. The United States Supreme
Court has held that, to assert a cognizable retaliation claim, “a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse, ‘which
in this context means it well might have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Burlington Nothern & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)(citations omitted). Thus, “[a]n employee’s decision to
report discriminatory behavior cannot immunize that employee from those petty slights or
minor annoyances that often take place at work and that all employees experience.” Id.
Assuming increased scrutiny of Plaintiff actually occurred, as we must, we have
24
serious doubts that the incidents cited by Plaintiff or the single “derogatory comment”10
would have been sufficient to dissuade a reasonable worker from asserting a
discrimination charge. Plaintiff has provided scant argument (nevermind, evidence)
regarding the effect of any of these actions on her decision to bring a discrimination
charge. In Rivera v. College of DuPage, the Court granted summary judgment to an
employer after finding that increased comments and warnings about a plaintiff’s job
performance, obscene gestures and epithets, and ridicule for the amount of food the
plaintiff ate “may have been stressful or hurtful to [plaintiff], . . . [but] would not have
dissuaded a reasonable employee from making a complaint.” 445 F. Supp. 2d 924, 927
(N.D. Ill. 2006). Although we suspect that the actions complained of by Plaintiff are
similarly unremarkable, we reserve a conclusive judgment on that issue in light of the
claim’s other deficiency discussed below.
Even if the additional scrutiny of Plaintiff’s job performance (or of employees
supervised by her) could properly be considered “adverse employment actions,”
Plaintiff’s failure to establish a causal connection between those actions and her protected
activity dooms her retaliation claim. The sole theory advanced by Plaintiff is that the
additional scrutiny she received relative to her job performance and Helferich’s comment
to another AIM employee corresponded in terms of timing with Plaintiff’s complaints
10
The only evidence of a “derogatory comment” made about Plaintiff consists of the
account of Heather Wildrick, a former AIM employee, who believed that Helferich was alluding
to Plaintiff when the two were discussing a “common denominator” who was contributing to low
morale in the office. Wildrick Aff.
25
regarding her salary; Plaintiff maintains that based on the timing alone a reasonable jury
could infer a causal connection between the two events. However, the Seventh Circuit
has held that “suspicious timing alone . . . does not support a reasonable inference of
retaliation; instead, plaintiffs must produce facts which somehow tie the adverse decision
to the plaintiffs’ protected actions. The mere fact that one event preceded another does
nothing to prove that the first event caused the second.” Sauzek v. Exxon Coal USA,
Inc., 202 F.3d 913, 918 (7th Cir. 2000). Plaintiff’s sparse mustering of facts tying the
increased scrutiny she received to her complaints regarding her salary cannot support a
prima facie case of retaliation.
Conclusion
As explained above, Plaintiff has failed to establish her prima facie case of race
discrimination or retaliation. In addition, as a matter of law, Plaintiff has failed to show
that the legitimate reason proffered by Defendants for the difference between the initial
salary paid to her as compared to other AIM employees was pretextual. Therefore,
Defendants are entitled to summary judgment on both claims. Defendants’ Motion
[Docket No. 57] is GRANTED. Final judgment shall enter accordingly.
IT IS SO ORDERED.
_______________________________
06/09/2011
Date: ____________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
26
Copies to:
Gregory P. Gadson
LEE COSSELL KUEHN & LOVE LLP
ggadson@nleelaw.com
Cherry Malichi
LEE COSSELL KUEHN & LOVE LLP
cmalichi@nleelaw.com
Mitzi H. Martin
BAKER & DANIELS
mhmartin@bakerd.com
Joseph C. Pettygrove
BAKER & DANIELS - Indianapolis
joseph.pettygrove@bakerd.com
27
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