CARTER v. ELI LILLY & COMPANY
Filing
70
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - The Court finds that Ms. Carter has not raised any issues of material fact with regard to proving her prima facie case of disparate pay or hostile work environment discrimination on the basis o f her race under either Title VII or §1981, and she has abandoned her failure to promote claims. Therefore, Lilly's Motion for Summary Judgment (Dkt. 53 ) on all counts of Ms. Carter's Complaint is GRANTED. Signed by Judge Tanya Walton Pratt on 2/1/2013. (JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ALLISON CARTER,
Plaintiff,
v.
ELI LILLY & COMPANY,
Defendant.
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Case No. 1:10-cv-01670-TWP-TAB
ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant Eli Lilly & Company’s (“Lilly”)
Motion for Summary Judgment (Dkt. 53). Plaintiff Allison Carter (“Ms. Carter”), an AfricanAmerican woman, filed this action against Lilly alleging violations of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and 42 U.S.C. § 1981 (“§ 1981”),
based upon allegations that, throughout her seven year tenure with the company, Lilly classified
her in lower paying positions than her white co-workers, even though she claims she did
substantially the same work.1 Ms. Carter also claims that she was subjected to a hostile work
environment on the basis of her race in violation of Title VII. For the reasons set forth below,
Lilly’s Motion for Summary Judgment (Dkt. 53) is GRANTED.
I. BACKGROUND
The following material facts are undisputed and reflect evidence in the light most
reasonably favorable to Ms. Carter, the non-moving party. See Luster v. Ill. Dep't of Corrs., 652
F.3d 726, 728 (7th Cir. 2011).
1
Ms. Carter’s Complaint also contained a “failure to promote” claim, alleging that white co-workers were afforded
more opportunities for promotion; however, in light of discovery obtained in the case, Ms. Carter has abandoned
those claims. Dkt. 63 at 21 n.9.
A.
Production Technician Position
Ms. Carter began working for Lilly, a global pharmaceutical manufacturing company, on
April 17, 2000 as a “Production Technician 1” in its Manufacturing Department in Greenfield,
Indiana. She was initially classified as a Pay Level 26 employee with a starting annual salary of
$28,560.00.
Within
one
month,
Lilly
elevated
Ms.
Carter
to
the
position
of
“Operator/Technician” at Pay Level 28, and increased her annual salary to $30,000.00. She
received positive performance evaluations from her supervisor, David Sutherland.
Ms. Carter alleges that she was first subjected to a hostile work environment at Lilly
while working in this position arising from a single incident that occurred at a restaurant. While
she was assigned to the Manufacturing Department, Ms. Carter attended a departmental function
organized and paid for by Lilly. At the restaurant, a waitress refused to serve Ms. Carter and two
other African-American Lilly employees, and another restaurant employee told them that it was
because the waitress refused to serve Blacks.
Ms. Carter and her two African-American
colleagues voluntarily left the restaurant, but the rest of the department stayed and continued the
event.
B.
Preventative Maintenance Mechanic Position
After working as an Operator Technician/Production Technician for approximately 18
months, Ms. Carter discovered that she was allergic to the drug that she was handling. As a
result, Lilly placed Ms. Carter on “medical redeployment status” and gave her time to search for
a new position within the company. In April 2002, Ms. Carter transferred to a new position as a
Preventative Maintenance Mechanic (“PM Mechanic”) in Lilly’s Maintenance Engineering and
Standards Laboratory (the “Corporate Standards Lab”) at its Indianapolis, Indiana facilities. She
remained at the Corporate Standards Lab at Pay Level 28 until August 2004, and after a series of
2
merit increases her ending salary was $35,760.00. As a PM Mechanic, Ms. Carter was primarily
responsible for calibrating instruments on which she was trained. Charles Andrew served as her
direct supervisor through the end of 2003, and in January 2004 Sandra Funk replaced Mr.
Andrew as Ms. Carter’s supervisor.
Ms. Carter alleges that the two employees similarly situated to her during her time at the
Corporate Standards Lab were Andrew Richie (“Mr. Richie”) and Anthony Hamilton (“Mr.
Hamilton”).2 When Ms. Carter joined the Corporate Standards Lab, Mr. Richie, a white male,
was classified as an Instrument Technician at Pay Level 32 with an annual salary of $42,600.00,
and in March 2003 he was promoted to Instrument Engineer, Pay Level 50, with an annual salary
of $56,280.00. While he was an Instrument Technician, Mr. Richie was also supervised by Mr.
Andrew. Both the PM Mechanics and the Instrument Technicians were expected to perform
calibrations; however, in contrast to PM Mechanics, Instrument Technicians were expected to
perform calibrations across a wider range of equipment, troubleshoot more complex problems,
and to address equipment issues in greater depth.
Mr. Hamilton, also a white male, was classified as a Senior Instrument Technician at Pay
Level 36 with an annual salary of $44,040.00 at the time Ms. Carter joined the Corporate
Standards Lab. There was some overlap between the PM Mechanic’s responsibilities and the
Senior Instrument Technician’s responsibilities in that both performed scheduled preventative
maintenance and non-scheduled maintenance. However, Senior Instrument Technicians were
expected to perform the duties of the Instrument Technician, and additionally expected to know
how to calibrate all equipment in the laboratory. In addition, the PM Mechanic was expected to
complete more orders than an Instrument Technician because the type of work completed by an
2
Lilly refers to a third employee, John Bush, who worked as a Pay Level 40 Technician/Specialist Engineer. Dkt.
54 at 4. However, Ms. Carter only addresses Mr. Richie and Mr. Hamilton in her response brief, so the Court will
presume that these are the employees that she considers to be similarly situated to her. Dkt. 63 at 9-11.
3
Instrument Technician could take longer. While Ms. Carter worked as a PM Mechanic, Mr.
Hamilton made a lateral move from the Corporate Standards Lab to Maintenance Engineering,
which was located in a different building than the Corporate Standards Lab and serviced
different internal Lilly customers. However, he was supervised by both Mr. Andrew and Ms.
Funk at the same time as Ms. Carter.
Lilly considered each of these positions distinct and the criteria for each employee’s
position determined his or her performance expectations, as well as qualified the employees for
different in-line promotions. In addition to the differing expectations, Ms. Carter, Mr. Richie
and Mr. Hamilton also had differing levels of experience and education. Ms. Carter had an
Associate’s degree in paralegal studies and certification for underwater warfare engineering, and
came to Lilly with 18 years of experience in clerical work, production and manufacturing. She
did not complete her Bachelor’s degree until 2004. Mr. Richie had a Bachelor of Science degree
in chemistry with a minor in mathematics. Mr. Hamilton had experience performing some
engineering duties, reading and understanding technical documents, and was expected to perform
calibrations on all equipment at the time Ms. Carter joined the Corporate Standards Lab. Despite
these differences, Ms. Carter argues the work that she, Mr. Richie and Mr. Hamilton performed
was similar enough that their higher rank and salary could only be attributed to her race.
Ms. Carter also alleges that she was subjected to harassment while she worked in the
Corporate Standards Lab. In or around May 2002, Ms. Carter complained that another coworker, John Bush, yelled at her and called her a “dummy” when she allegedly refused to modify
an instrument’s calibration records. She believed Mr. Bush’s comments were motivated by race,
though his comments contained no references to race. Ms. Carter reported the incident to her
supervisor, Mr. Andrew, to his superiors, and to Human Resources. That same day, Human
4
Resources Representative Timothy Hudson responded to Ms. Carter’s e-mail complaint and
scheduled a meeting with her to investigate the matter. Mr. Andrew met with Mr. Bush and
counseled him on his need to improve his working relationship with Ms. Carter, and Mr. Bush
apologized to Ms. Carter.
In another incident, Eric Moline, a white non-supervising employee, called Ms. Carter
and another African-American co-worker “monkeys” in front of a number of colleagues, but she
does not recall any other specifics about the statement. She also says that Mr. Moline and
another contractor made racial and sexual jokes around her, but again does not recall the
specifics of the jokes or how many times she heard the jokes. Additionally, Ms. Carter reports
that a white Lilly contractor, James Allman, made offensive jokes regarding religion and sexual
orientation, and made discriminatory comments about African-Americans and Mexicans.
However, Ms. Carter also did not recall the specifics of the comments made by the Lilly
contractor, and only vaguely recalled that he made “some kind of racial joke.” Dkt. 63-2 at 18889, 316:24-317:2.
Ms. Carter reported these incidents to her supervisor and to Human
Resources. Lilly’s investigation concluded that the behavior did take place and claims that
appropriate action was taken.
C.
Training Assistant Position
In August 2004, Ms. Carter transferred to a new position as a Training Assistant in the
Bioproducts Research and Development Group in Virginia after she complained of an allergic
reaction to dust from construction near the Corporate Standards Laboratory. Debra Brush hired
Ms. Carter at Pay Level 28 and was her first supervisor in the position, but thereafter her
supervisor was changed to Melinda Griffin (“Ms. Griffin”). As a Training Assistant, Ms. Carter
worked with SAP/LEADS, the system used to administer training, and her duties involved
5
entering training credit into the system, organizing the training record library, grading tests for
various courses, and scheduling training courses. Ms. Carter’s salary remained at the level of her
previous position of $35,760.00, and after a merit increase in March 2005 she earned an annual
salary of $36,779.00.
Ms. Carter alleges that the individual whose position was most similar to hers was Kathy
Sutton, a white female, who was classified as a Training Specialist. Ms. Sutton also reported to
Ms. Griffin. The Training Specialist was responsible for putting course content into the training
system, linking course content with individual training plans, and assisting with developing some
on-the-job training checklists.
The primary difference between the Training Assistant and
Training Specialist positions was that the Training Assistant’s job involved more data entry,
whereas the Training Specialist’s job involved greater interaction with the more senior Training
Associates in order to ensure training courses were put into the training system and assigned to
the appropriate individuals.
Occasionally, both the Training Assistant and the Training
Specialist would both have to enter course information, course completion information or
scheduling courses in the system if the workload necessitated doing so. Ms. Sutton was at Pay
Level 40 and earned a salary of $44,220.00 as of July 2004, and in March 2005 her salary
increased to $45,365.00. Ms. Sutton had previously worked as a Training Assistant for two
years prior to being promoted to the Training Specialist position. Ms. Carter alleges that she
increasingly took on Ms. Sutton’s duties because of her proficiency with Lilly’s training systems
and attention to detail.
Ms. Carter claims that she continued to be subjected to a racial harassment while in her
position as a Training Assistant. Ms. Griffin frequently yelled at her and told Ms. Carter to ask
each person after every meeting if Ms. Carter had said anything to offend them, although she did
6
not ask any other employees to do so. Ms. Carter also claims that Ms. Griffin suggested that Ms.
Carter select an African-American mentor, Merleen Lashley, even though Ms. Lashley worked
in a different department. Ms. Carter reported to Ms. Griffin that she overheard Ms. Sutton
speaking about Ms. Carter in a “disrespectful manner,” but Ms. Griffin believed Ms. Sutton’s
version of the events that Ms. Sutton was referring to someone else. Ms. Sutton later told Ms.
Carter that she disapproved of her son dating an African-American woman because of her race.
Ms. Carter also reported this comment to Ms. Griffin, but Ms. Griffin did not follow up on it.
Ms. Griffin denied Ms. Carter’s requests for additional training and gave negative
recommendations regarding Ms. Carter’s interpersonal and communication skills to other hiring
managers when Ms. Carter was seeking other positions within the company.
D.
Training Specialist Position
In late 2005, Ms. Carter developed another allergic reaction, resulting in a third medical
redeployment. In January 2006, Ms. Carter accepted a position as a Training Specialist in Lilly’s
Manassas, Virginia facility, which was at Pay Level 40. She worked under the supervision of
Christine McPherson. Ms. Carter alleges that she was subjected to a racially hostile work
environment based upon an incident that occurred at a company picnic in May or June 2006. For
the duration of the picnic, a white co-worker, Todd Troutman, wore a modified chef hat pulled
down over his face with holes cut out for the eyes and nose and a white apron, which to Ms.
Carter, resembled a Ku Klux Klan (“KKK”) hood and robe. The co-worker called himself the
“surprise chef.” A group photo was taken of the “surprise chef” and other Lilly employees and
included in the company’s newsletter, the Pennacle. Lilly later collected the newsletter and
distributed a revised version that omitted the photograph. Ms. Carter did not file a formal
complaint about the incident, claiming that the Human Resources department attended the picnic
7
and everyone was aware that Mr. Troutman was wearing the “hood” and apron. Aside from the
revision to the company newsletter, Lilly took no further action as a result of the incident.
Additional facts are added below as needed.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d
487, 489–90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews
“the record in the light most favorable to the nonmoving party and draw[s] all reasonable
inferences in that party's favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation
omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest
on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is
a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation
omitted). “In much the same way that a court is not required to scour the record in search of
evidence to defeat the motion for summary judgment, nor is it permitted to conduct a paper trial
on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and
internal quotations omitted). “[N]either the mere existence of some alleged factual dispute
between the parties … nor the existence of some metaphysical doubt as to the material facts … is
sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Group, Inc.,
129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
8
III. DISCUSSION
Title VII makes it 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). Ms. Carter has also alleged discrimination in
violation of 42 U.S.C. § 1981, which prohibits racial discrimination in the creation and
enforcement of contracts. The applicable legal standards on liability for race discrimination are
the same under Title VII and § 1981. Herron v. DaimlerChrysler Corp., 388 F.3d 293, 299 (7th
Cir. 2004); Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1028 (7th Cir. 2004). Lilly has
moved for summary judgment on all claims in Ms. Carter’s Complaint, and her disparate pay and
hostile work environment claims are each addressed below.
A.
Disparate Pay Claims
Title VII prohibits an employer from discharging or discriminating against an employee
“with respect to [her] compensation, terms, conditions or privileges of employment, because of
[her] ... race.” 42 U.S.C. § 2000e–2(a)(1). Section 1981 provides that “[a]ll persons within the
jurisdiction of the United States shall have the same right in every State and Territory to make
and enforce contracts … as is enjoyed by white citizens.” 42 U.S.C. § 1981. Plaintiffs alleging
discrimination under Title VII or § 1981 may prove such discrimination using either the direct or
indirect method of proof. Andonissamy v. Hewlett–Packard Co., 547 F.3d 841, 849–50 (7th Cir.
2008). The direct method requires that the plaintiff produce evidence that the defendant was
motivated by animus toward a protected class when she suffered some adverse employment
action. Id. If a plaintiff cannot present direct evidence of discrimination, she may pursue her
claim using indirect evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
9
Under the indirect method, a prima facie case for race discrimination resulting in
disparate pay requires a showing that: (1) the plaintiff is a member of a protected class; (2) she
was performing at a level expected by her employer from one in such a position; and (3) she
suffered an adverse employment action, in that she was paid a lower salary than a “similarly
situated” non-protected class member. Dandy v. United Parcel Service, Inc., 388 F.3d 263, 274
(7th Cir. 2004). If the plaintiff establishes a prima facie case of discrimination, the burden of
production shifts to the defendant to articulate a non-discriminatory reason for the adverse
employment action. Sun v. Bd. of Trs. of the Univ. of Ill., 473 F.3d 799, 814 (7th Cir. 2007). If
the defendant does so, the burden shifts back to the plaintiff to submit evidence demonstrating
that its explanation is pretextual. See Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir.
2012). To establish pretext, a plaintiff must “identify such weaknesses, implausibilities,
inconsistencies, or contradictions in [defendant’s] proffered reasons that a reasonable person
could find them unworthy of credence and hence infer that [defendant] did not act for the
asserted non-discriminatory reasons.” Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792
(7th Cir. 2007). Because Ms. Carter has offered no direct or circumstantial evidence in accord
with the direct method to establish his disparate pay discrimination claim, she must rely upon the
indirect method.
The parties do not dispute that Ms. Carter has shown that she satisfies the first two
elements of her prima facie case. First, she is a member of a protected class as an AfricanAmerican. Second, she has shown that she was meeting her employer’s legitimate employment
expectations, as evidenced by her raises and satisfactory performance evaluations. The primary
point of contention between the parties is whether Ms. Carter raises sufficient questions of fact
regarding whether her co-workers, Andrew Richie, Anthony Hamilton, and Kathy Sutton, were
10
“similarly situated” such that Ms. Carter can satisfy the third prong of her prima facie case,
making summary judgment in favor of Lilly inappropriate.
“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 the
plaintiffs have met their burden on the issue.” Coleman v. Donahoe, 667 F.3d 835, 846–47 (7th
Cir. 2012) (internal quotations and citations omitted). “Which factors are material is a casespecific inquiry that depends on the specifics of the defendant’s decision and the stated reason
for it.” Good v. Univ. of Chic. Med. Ctr., 673 F.3d 670, 675–76 (7th Cir. 2012). There is no
definitive formula for making this determination; rather, courts must examine “all relevant
factors, including 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.’” Warren v. Solo Cup Co., 516 F.3d 627, 631 (7th Cir.
2008) (quoting Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005) (additional citations
omitted)).
Formal job titles or rank are not dispositive; rather, the key inquiry is whether the
comparators were subject to the same standards. Rodgers v. White, 657 F.3d 511, 518 (7th Cir.
2011). “The question is whether the other employees’ situations were similar enough to the
plaintiff’s that it is reasonable to infer, in the absence of some other explanation, that the
different treatment was a result of race or some other unlawful basis.” Luster, 652 F.3d at 730.
1.
Preventative Maintenance Mechanic Position
Ms. Carter argues that her white co-workers, Mr. Richie and Mr. Hamilton, were
classified into higher ranking positions—thus receiving higher pay—despite the fact that she and
they did substantially the same work, suggesting that her lower classification and pay were
11
attributable to her race. In its brief, Lilly only addressed Ms. Carter’s disparate pay claim as it
relates to her position as a Training Assistant, not a PM Mechanic. See Dkt. 54 at 15-16. Lilly,
in its reply brief, addresses this oversight by claiming that it did not know that Ms. Carter was
asserting a disparate pay claim and was not required to address a non-cognizable “comparative
pay” claim. Dkt. 68 at 7-8. This does not explain, however, how Lilly was able to clearly
address Ms. Carter’s disparate pay claim as it relates to her position as a Training Assistant. Dkt.
54 at 15-16. In her Complaint, Ms. Carter clearly alleges facts supporting a disparate pay claim
for the time period while she worked as a PM Mechanic by alleging that white colleagues were
“paid more than her in bonus/incentive pay despite comparable performance while doing
comparable work.” Dkt. 1 at 2. The argument that Lilly could not discern this as a disparate pay
allegation – while determining that factual allegations stating “Ms. Carter was paid less than a
white female colleague who performed similar work” did state such a claim—is unavailing.
However, while it is true that, as a general rule, if a moving party does not raise an issue
in support of its motion for summary judgment, such an issue is waived, see Sublett v. John
Wiley & Sons, Inc., 463 F.3d 731, 736 (7th Cir. 2006), Lilly has still addressed the key point of
contention in Ms. Carter’s prima facie case, namely that Ms. Carter, Mr. Richie, and Mr.
Hamilton are not similarly situated and are therefore not proper comparators. Likewise, Ms.
Carter was afforded the opportunity to respond and put forth evidence to argue that there is a
genuine issue of material fact as to whether these individuals were similarly situated. See Dkt.
63 at 24-28. The Court will not allow this particular disparate pay claim to go forward to trial on
such a technicality, particularly considering the Court’s finding that Ms. Carter has not
established a sufficient prima facie case of race discrimination on her disparate pay claim.
12
Turning to the issue at hand, Ms. Carter has not shown that there is a genuine issue of
material fact as to whether she has satisfied the third prong of her prima facie case because she
cannot show that Mr. Richie and Mr. Hamilton were “similarly situated” employees. Ms. Carter
satisfied only one requirement—that both positions report to the same supervisor—at least
initially for her comparison with Mr. Richie while he was an Instrument Technician, and during
the entire time she worked in the Corporate Standards Lab with Mr. Hamilton. Where Ms.
Carter fails, however, is in showing that the PM Mechanic, the Instrument Technician, and
Instrument Engineer had the same job description, were subject to the same standards, and that
they all had comparable education and experience. Although Lilly admits there was some
overlap between the duties of the three positions, Ms. Carter even acknowledges that some of
their duties differed. Dkt. 63 at 9. There were also differing expectations for the Instrument
Technician and Instrument Engineer positions than the PM Mechanic position, including the
expectation that they perform calibrations across a wider range of equipment, troubleshoot more
complex problems, and address equipment issues in greater depth in addition to performing the
calibrations performed by the PM Mechanic.
In addition, Ms. Carter, Mr. Richie and Mr. Hamilton had differing levels of experience
and education. While Ms. Carter had no prior engineering experience, Mr. Hamilton had already
been performing some engineering duties by the time Ms. Carter joined the Corporate Standards
Lab. Additionally, Mr. Richie held a BS in chemistry with a minor in mathematics, whereas Ms.
Carter held an associate’s degree in paralegal studies. While Ms. Carter only disputes that these
qualifications were “superior” to her own, she does not offer any explanation as to why the
differences in their qualifications and experience were irrelevant to Lilly’s hiring and
classification decisions. Because the parties do not dispute that each of the positions in the
13
Corporate Standards Lab had different performance expectations and that there was only some
overlap in their duties, the Court finds that no reasonable fact-finder could find that Ms. Carter
was similarly situated to Mr. Richie and Mr. Hamilton. Therefore, Lilly is entitled to summary
judgment on Ms. Carter’s disparate pay claim during her time as a PM Mechanic.
2.
Training Assistant Position
Ms. Carter also cannot show that there is a dispute of material fact as it relates to whether
Ms. Sutton was a similarly situated employee, satisfying the third prong of Ms. Carter’s prima
facie case for disparate pay while working as a Training Assistant. When Ms. Carter joined the
training department, Ms. Sutton had already worked as a Training Assistant for two years and
had been promoted to the Training Specialist position, the same position that Ms. Carter was also
promoted to less than two years later after working as a Training Assistant. In addition, there
were distinctions between the duties and expectations of a Training Assistant and a Training
Specialist, including the fact that the Training Assistant position involved more data entry, and
the Training Specialist’s job involved greater interaction with the more senior Training
Assistants to ensure training courses were put into the training system and assigned to the right
people. Even assuming that Ms. Carter excelled in her position as a Training Assistant by
learning Lilly’s electronic training system quickly and gradually assuming some of the duties of
the Training Specialist, this does not mean that Ms. Carter can prove her prima facie case by
showing that she was similarly situated to Ms. Sutton. An employer should not be held liable for
hiring an employee who later turns out to be more proficient than a more experienced and senior
ranking employee. At the time she was hired as a Training Assistant, Ms. Carter had no relevant
experience, but as she gained experience she was eventually rewarded with a promotion to
Training Specialist, just as Ms. Sutton was after first working as a Training Assistant. There was
14
enough difference between the duties and experience levels of Ms. Carter and Ms. Sutton such
that no reasonable fact-finder could conclude that the two were similarly situated. Therefore,
Lilly is entitled to summary judgment on Ms. Carter’s disparate pay claim relating to her time as
a Training Assistant.
B.
Hostile Work Environment Claims
Ms. Carter alleges that she was subjected to a racially hostile work environment during
the tenure of each of her positions with Lilly. Hostile environment claims based on racial
harassment are reviewed under the same standards as sexual harassment.
National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116 n.10 (2002). In order to prevail on a hostile work
environment claim, the plaintiff must show that the conduct at issue “was both subjectively and
objectively so severe or pervasive as to alter the conditions of employment and create an abusive
working environment.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir. 2004)
(quotations omitted).
“‘[R]elatively isolated’ instances of non-severe misconduct will not
support a hostile environment claim.” Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir.
1993).
To get past summary judgment on a hostile work environment claim, Ms. Carter must
provide sufficient evidence to create a material issue of fact as to four elements: (1) the work
environment was both subjectively and objectively offensive; (2) her race was the basis for the
harassment; (3) the conduct was severe or pervasive; and (4) there is a basis for Lilly’s liability.
Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 390 (7th Cir. 2010). When evaluating a hostile
work environment claim, courts will not focus on discrete acts of individual employees, but must
consider the entire context of the workplace. Yancick v. Hanna Steel Corp., 653 F.3d 532, 544
(7th Cir. 2011). “To support a hostile work environment claim, the plaintiff need not show that
15
the complained-of conduct was explicitly racial, but must show it had a racial character or
purpose.” Id.
An employer is not automatically liable for harassing behavior by coworkers; rather,
employers are only liable where they do not “promptly and adequately respond to employee
harassment.” Sutherland v. Wal-Mart Stores, Inc., 632 F.3d 990, 994 (7th Cir. 2011). While
“not every preventive measure will be a proper remedy… [t]he question is instead whether [the
employer’s] response to the harassment was a reasonable one, designed to remedy the illegal
harassment, or a negligent one that did not adequately respond to the situation in its midst.”
Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999). However, “[w]hat is reasonable depends
on the gravity of the harassment.” Baskerville v. Culligan Int’l Co., 50 F.3d 428, 432 (7th Cir.
1995).
Ms. Carter cannot show that the incidents cited, taken either individually or collectively,
constitute a racially hostile work environment. A series of incidents will be considered part of
the same actionable hostile work environment practice where they involve “the same type of
employment actions, occurred relatively frequently, and were perpetrated by the same
managers.” Morgan, 536 U.S. at 120. Where a series of acts are not sufficiently similar in
nature, frequency and severity, courts have found that each act constitutes a different
employment practice. See, e.g., Wilkie v. Dept. of Health & Human Svcs., 638 F.3d 944, 951-52
(8th Cir. 2011) (finding that alleged misconduct in 2004, consisting of sexual advances, and nonsexual acts by the same individual in 2005 were not too similar in nature, frequency, and severity
so as to comprise single hostile work environment); Chambless v. Louisiana-Pacific Corp., 481
F.3d 1345, 1349 (11th Cir. 2007) (finding discrete acts relating to promotion and retaliation
insufficiently related to hostile work environment acts of “discriminatory intimidation, ridicule,
16
and insult” to comprise part of that claim); cf. Isaacs v. Hill's Pet Nutrition, Inc., 485 F.3d 383,
386-87 (7th Cir. 2007) (acts of co-worker harassment occurring during plaintiff’s tenure on
different work teams in same production facility held part of same hostile work environment
practice where plaintiff was subjected to sexual comments and sounds on both teams and
unavailingly reported conduct to same chain of managers). Harassing conduct need not be both
severe and pervasive; one instance of conduct that is sufficiently severe may be enough to
constitute hostile work environment harassment. Jackson v. Cnty. of Racine, 474 F.3d 493, 499
(7th Cir. 2007). Ms. Carter alleges that harassment occurred while working in four separate jobs
in four separate locations with four separate sets of supervisors and co-workers, thus the Court
concludes that the nature of the conduct is sufficiently different and the alleged incidents do not
constitute a single coherent hostile environment claim. Additionally, the Court finds that the
individual incidents cited by Ms. Carter are not sufficiently severe to constitute hostile
environment discrimination on their own. Each set of allegations will be addressed in turn
below.
1.
The Greenfield, Indiana restaurant incident
Ms. Carter alleges that the corporate event at which a waitress refused to serve her and
two African-American co-workers during the time she worked as a Production Technician
created a racially hostile workplace.3 This incident does not satisfy any of the requirements for
such a finding.
The incident occurred at a public restaurant, not the workplace, and was
perpetuated by someone completely unrelated to Lilly. The fact that the other Lilly employees
3
Lilly argues that this incident falls outside of the statute of limitations for both Title VII and § 1981 and thus
should not be considered. However, the Court is considering the incident only to analyze whether it should be
considered as part of “ongoing harassment.” Courts may consider discrete acts that fall outside of the statute of
limitations where the series of separate acts collectively constitute one “unlawful employment action,” and the entire
time period of the hostile environment may be considered by a court for the purposes of determining liability.
Morgan, 536 U.S. at 116-17.
17
decided to stay at the restaurant does not qualify this as an objectively offensive act such that it
was “abusive,” nor was it severe or pervasive or alter the conditions of Ms. Carter’s work
environment. Finally, there is no basis for Lilly’s liability because the harassment was not
perpetuated by Ms. Carter’s coworkers or supervisor; Lilly cannot be held responsible for an
offensive waitress or Ms. Carter’s coworkers’ inaction in not leaving the restaurant with her and
the other employees.
2.
Incidents in the Corporate Standards Lab
Ms. Carter alleges that three incidents that occurred while she worked in the Corporate
Standards Lab created a racially hostile working environment. First, she alleges that a co-worker
yelled at her and called her a “dummy” for failure to modify an instrument’s calibration.
Second, she alleges that a non-supervising employee referred to her and another AfricanAmerican employee as “monkeys” but does not recall the specifics or context of the statement.
Third, Ms. Carter alleges that a Lilly contractor made discriminatory jokes regarding race,
religion and sex, but also does not recall what was said or how many times it was said.
Again, these incidents do not rise to a sufficient level of severity to constitute a hostile
work environment, either collectively or individually. With regard to being called “dummy” by
a co-worker, Ms. Carter has not shown, aside from her own speculation, that this comment had
anything to do with her race and, in any event, Lilly addressed the incident and counseled the coworker on his behavior. Even accepting Ms. Carter’s assertion that the “monkey” comment and
the offensive jokes did relate to her race, she has not shown that they were severe or pervasive
enough to alter the conditions of her employment. Ms. Carter cannot even recall the specifics or
the context of the statements and jokes, calling into question how even subjectively severe she
considered these acts and demonstrating the isolated nature of the conduct.
18
See Smith v.
Northeastern Ill. Univ., 388 F.3d 559, 567 (7th Cir. 2004) (“One utterance alone does not create
an objectively hostile work environment.”); Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013
(7th Cir. 1997) (“The occasional vulgar banter … of coarse or boorish workers would be neither
pervasive nor offensive enough to be actionable.” (internal quotations and citations omitted)).
3.
Incidents in the Training Department
Ms. Carter next alleges that she was subjected to a racially hostile work environment
while under the supervision of Ms. Griffin during her tenure as a Training Assistant. Ms. Carter
claims that Ms. Griffin frequently yelled at her, told her to ask co-workers if she had offended
them, suggested that she seek out a specific mentor who was African-American, denied her
training, and gave negative assessments of her leadership skills to potential hiring managers.
Another employee, Ms. Sutton, expressed her disagreement with interracial dating, and spoke
about Ms. Carter in a disrespectful manner. Nowhere does Ms. Carter show that any of Ms.
Griffin’s actions were related to her race, nor does she show that they altered the conditions of
her work environment any more than the conduct of the typical unpleasant coworker. Though
Ms. Sutton’s comment about her son may have been related to race, Ms. Carter has not shown
that it was specifically directed towards her or expressed anything more than a personal bias.
Ms. Carter has not shown that Ms. Griffin’s or Ms. Sutton’s conduct was objectively severe or
pervasive such that a reasonable fact-finder could conclude that she was subjected to a hostile
work environment based upon her race.
4.
The incident at the Prince William County picnic
Finally, Ms. Carter argues that the incident that occurred while she was working as a
Training Specialist at the Prince William plant in Virginia where a co-worker wore a modified
chef hat over his head and a white apron created a hostile working environment. Even accepting
19
Ms. Carter’s version of the events that the hat and apron worn by the “surprise chef” was
intended to resemble a KKK hood and robe, Ms. Carter cannot show that Lilly can be held liable
because she failed to report the incident to her supervisors. In order to be held liable for racial
harassment by a co-worker, the employer must have been negligent in reasonably responding to
employee harassment. Sutherland, 632 F.3d at 994. Ms. Carter claims that she did not complain
about the incident because it occurred within full view of the Human Resources department;
however, even Ms. Carter acknowledges that the employee referred to himself as the “surprise
chef” and there are no other allegations that he engaged in any other behavior suggesting that he
was imitating a member of the KKK that would have made Lilly aware that objectively harassing
conduct was occurring. While the “surprise chef” costume may have been in poor taste, it would
be unreasonable to expect that Lilly management would automatically assume that a man in a
chef hat and apron at a cookout was intended to be a racially inflammatory symbol, absent a
complaint from someone who was subjectively offended. The fact that Lilly subsequently
removed the picture of the “surprise chef” from the company newsletter without Ms. Carter’s
complaint does not indicate that Lilly knew the incident was offensive at the time it occurred; it
is likely that they were trying – apparently unsuccessfully – to avoid the very sort of lawsuit that
is presently before this Court.
The Court finds that these incidents cited by Ms. Carter are sufficiently isolated and nonsevere as a matter of law that she cannot make out a prima facie case of hostile work
environment discrimination. Thus, Lilly is entitled to summary judgment on Ms. Carter’s hostile
work environment claims.
20
IV. CONCLUSION
For the foregoing reasons, the Court finds that Ms. Carter has not raised any issues of
material fact with regard to proving her prima facie case of disparate pay or hostile work
environment discrimination on the basis of her race under either Title VII or §1981, and she has
abandoned her failure to promote claims. Therefore, Lilly’s Motion for Summary Judgment
(Dkt. 53) on all counts of Ms. Carter’s Complaint is GRANTED.
SO ORDERED.
02/01/2013
Date: _____________
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
DISTRIBUTION:
Sandra L. Blevins
BETZ & ASSISTANTS
sblevins@betzadvocates.com
Benjamin C. Ellis
BETZ & BLEVINS
bellis@betzadvocates.com
Kevin W. Betz
BETZ & BLEVINS
kbetz@betzadvocates.com
Jamenda A. McCoy
FAEGRE BAKER DANIELS LLP - Chicago
jamenda.mccoy@gmail.com
Craig M. Borowski
FAEGRE BAKER DANIELS LLP - Indianapolis
craig.borowski@faegrebd.com
21
Ellen E. Boshkoff
FAEGRE BAKER DANIELS LLP - Indianapolis
ellen.boshkoff@faegrebd.com
Robert Thomas Dassow
HOVDE DASSOW & DEETS LLC
rdassow@hovdelaw.com
Ada N. Orakwusi
MORELLI RATNER PC
aorakwusi@morellilaw.com
Benedict P. Morelli
MORELLI RATNER, PC
bmorelli@morellilaw.com
David S. Ratner
MORELLI RATNER, PC
dratner@morellilaw.com
Martha M. McBrayer
MORELLI RATNER, PC
mmcbrayer@morellilaw.com
Matthew Louis Schmid
SANFORD HEISLER, LLP
mschmid@sanfordheisler.com
Sharon Yvette Eubanks
SANFORD WITTELS & HEISLER LLP
seubanks@swhlegal.com
Kristen L. Walsh
SANFORD WITTELS & HEISLER, LLP
kwalsh@swhlegal.com
22
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