VALLEE v. STATE OF INDIANA/DEPT. OF TRANSPORTATION

Filing 59

ENTRY REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT: For the foregoing reasons, the Defendant's motion for summary judgment 32 is DENIED ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 8/9/2012. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHRISTINE VALLEE,
Plaintiff,
vs.
STATE OF INDIANA/DEPT. OF
TRANSPORTATION,
Defendant.

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No. 1:11-cv-00481-WTL-MJD

ENTRY REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on the Defendant’s motion for summary judgment (dkt.
#32). The motion is fully briefed, and the Court, being duly advised, DENIES the Defendant’s
motion.
I. STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed and all reasonable
inferences must be drawn in the non-movant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view
the record in the light most favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.”). 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.” Id. Finally, the non-moving
party bears the burden of specifically identifying the relevant evidence of record, and “the 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).
II. BACKGROUND
The facts taken in the light most favorable to the Plaintiff are as follow.1
The Plaintiff, Christine Vallee, began working for the Defendant, the Indiana Department
of Transportation, on October 2, 2006, as an Inventory Control Specialist in the Traffic
Department. Tom Bewley was Vallee’s supervisor at most times relevant to this action.
Bewley was in charge of executing Vallee’s performance evaluations. On May 2, 2007,
Vallee received an evaluation rating of “Meets Expectations.” Valle was nominated for
Employee of the Year in the Traffic Department in 2007. In 2008, she was again nominated and
this time received the award. On January 27, 2009, Vallee received a performance evaluation of
“Exceeds Expectations.” On March 10, 2010, Vallee received a performance rating of “Meets
Expectations.”
In July 2009, a position as Paint and Markings Supervisor became available. Forty-six
people applied for this vacant position, including Vallee. Bewley and Jason Jones reviewed
applications and resumes and selected applicants for interviews. Vallee was the only female
granted an interview for this position.
The job posting for the Paint and Markings Supervisor position stated, under “Preferred
Experience: High School graduate or GED. Preferred three (3) years Traffic Operations
experience. Applicant must have a valid commercial driver’s license to legally operate motorized
equipment of size and type referenced herein.” This position required maintenance of signs and

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The facts that follow are derived in large part from Vallee’s Statement of Additional Facts Not
in Dispute, none of which the Defendant disputes with respect to this motion. Reply Mem. in
Supp. of Mot. for Summ. J. 5, April 17, 2012, ECF No. 41.
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markings, establishment and implementation of plans, support and supervision of coworkers and
employees, operation of state vehicles, and presence at meetings and training sessions.
On September 9, 2009, Vallee received a letter that stated, in part, that she had not
received the position of Paint and Markings Supervisor, but “we encourage you to continue to
apply and interview for positions with the State of Indiana.” Ultimately, a male by the name of
Patrick Szewczak was hired for the position of Paint Supervisor, and it was Bewley who made
the decision to hire Szewczak. Szewczak did not work for the Indiana Department of
Transportation prior to his hire and he did not have a Class A CDL at the time of hire, and
Bewley knew this. Vallee, on the other hand, had worked for the Department of Transportation
for nearly three years and had a valid Class A CDL.
On June 1, 2010, Vallee filed a charge of discrimination with the Equal Employment
Opportunity Commission that alleged sex discrimination for failure to promote Vallee to the
position of Paint and Markings Supervisor.
In 2010, another employee left his position as a Paint Supervisor reporting to Bewley.
Five females, including Vallee, applied for this position, but the Defendant did not interview any
of the female applicants, including Vallee. The individuals who made the decision not to grant
Vallee an interview, which included Bewley, were aware of her charge of discrimination against
the Defendant alleging sex discrimination.
Bewley testified that he could not remember why Vallee was not selected for an
interview, but according to the Defendant, “Plaintiff was not interviewed for this position at this
time as she was previously interviewed for the position in 2009.” Michael Pegan, a male who
had not complained of sex discrimination, interviewed for the Paint Supervisor position in 2009
and again in the summer of 2010. Ultimately, the Defendant, and in particular Bewley, hired

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David Reed, a male, for the position of Paint Supervisor. At the time of his hire, Reed had never
made a complaint of sex discrimination or filed a charge of discrimination against the Defendant.
After his hire, Bewley told Reed to “watch out” for Vallee because she might try to “get
him” with something. He also told Reed that Vallee had filed a sexual harassment charge against
him and he told Reed that “ladies in the sign shop stir up trouble.” On one occasion, Reed also
witnessed Bewley tell Szewczak to document any issues that came up with Vallee.
Two months after Vallee filed a charge of discrimination with the EEOC, the Defendant
disciplined Vallee for direct insubordination, possessing a negative attitude, and conduct
unbecoming a state employee. According to the disciplinary memorandum, Vallee “tried without
success to have another employee file false allegations against [Bewley]” and she also “refused
to attend” a meeting in Bewley’s office, instead she “stood outside the office” with her back
“turned to the office door.” Vallee contests the factual basis underlying this memorandum,
clarifying that she simply asked another employee, Jessica Basey, whether Basey would be
willing to tell management about a conversation Basey had overheard. Vallee also asserts that
there were not enough chairs in the meeting for her to sit down, so she stood by the nearest open
table and took notes during the meeting.
Also in August 2010, after Vallee requested that she be transferred to avoid contact with
Bewley, Vallee was assigned to the Panel Sign crew, which Vallee asserts is the most physically
demanding job in the department. This new position required Vallee to work with the road crew
roughly three days per week when she previously had done so only two days per week. During
her work with this crew, Vallee injured her back.
In September 2010, Vallee was again disciplined, this time for running a background
check on a supervisor while at work. Vallee admits that she ran a background check, but

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contends that there exists within the department a history of disparate punishment for improper
use of work computers. Vallee also noticed that Bewley’s attitude, demeanor, and method of
communication with her negatively changed after she filed her charge. Bewley started taking
notes on Vallee and ordered Szewczak to take notes on Vallee. Vallee was also given more job
duties after she filed her charge of discrimination; specifically, there was disagreement over the
proper process for checking road lighting data, and Bewley was “pickier on the road logs.”
Bewley also once told Vallee that she would be held accountable for other employees’ mistakes
on the road logs.
Reed’s employment with the State ended on October 28, 2010, and this created yet
another vacancy for the position of Paint Supervisor. Four females, including Vallee, applied for
the position of Paint Supervisor in November 2010, but Vallee was not granted an interview. The
individuals who made the decision not to grant Vallee an interview were aware of her charge of
discrimination against the Defendant. Ultimately, the Defendant hired Adam Jones for the
position of Paint Supervisor. At the time of his hire, Jones had never made a complaint of sex
discrimination or filed a charge of discrimination against the Defendant. When asked, Bewley
again testified that he did not know why Vallee was not selected for an interview, but according
to the Defendant, “Plaintiff was not interviewed for this position at this time as she was
previously interviewed for the position in 2009.” Bewley testified that he would never refuse to
hire an employee because they had already interviewed for a position and failed to receive the
position.
On January 27, 2011, Vallee received the lowest performance rating of her career, which
is characterized as “Does Not Meet Expectations.”

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On April 8, 2011, Vallee filed the instant action, alleging that the Defendant had
discriminated against her because of her sex by failing to promote her to the Paint Supervisor
position. She also alleges that the Defendant retaliated against her after she filed a charge of sex
discrimination with the EEOC by (1) failing to promote her to another open Paint Supervisor
position in 2009; (2) again failing to promote her to the same position in 2010; and (3) creating
what she calls a “hostile work environment.”
III. DISCUSSION
A. Failure to Promote
Vallee asserts that the Defendant’s failure to promote her to Paint Supervisor was
because of her gender and therefore violates Title VII. 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 [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
Vallee asserts that she has stated a prima facie case of sex discrimination for failure to
promote her to the position of Paint Supervisor. In order for a claim for failure to promote “[t]o
move past summary judgment . . . , a plaintiff must first establish a prima facie case by showing
that [she] is a member of a protected class, [she] applied for and was qualified for an open
position, [she] was rejected for the position, and the position was filled with a person not in the
protected class who had similar or lesser qualifications than the plaintiff.” Grigsby v. LaHood,
628 F.3d 354, 358 (7th Cir. 2010). “After the plaintiff has made out a prima facie case, the
burden shifts to the defendant to produce a legitimate, nondiscriminatory reason for the
employment action. This is a light burden.” Stockwell v. City of Harvey, 597 F.3d 895, 901 (7th

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Cir. 2010). “If the employer offers such a reason, the plaintiff must then show that the proffered
reason is actually a pretext for illegal discrimination.” Grigsby, 628 F.3d at 359.
The parties do not dispute that Vallee is a member of a protected class and that she was
rejected for the position. The analysis thus turns on whether Vallee has produced sufficient
evidence that was she was qualified for the position and that the person ultimately hired had
similar or lesser qualifications than she.
Vallee points to her CDL and her past job experience as evidence that she was qualified
for the position. In response, the Defendant baldly asserts that “she was not,” – qualified, that is
– but then does not explain in any detail how Vallee was not qualified for the position; rather, the
Defendant focuses solely on arguing that Szewczak was more qualified than Vallee for the
position. Nevertheless, it is not the Defendant’s burden, and the Court inquires into whether
Vallee was indeed qualified. The Court finds sufficient evidence from which a reasonable jury
could conclude that Vallee was qualified: she had a GED; she had nearly three years of
experience with the Department of Transportation; she had a valid Class A CDL; and she had
consistently met expectations on her performance reviews.
With respect to whether Szewczak had similar or lesser qualifications than Vallee, Vallee
has put forth sufficient evidence from which a reasonable jury could conclude that Szewczak had
lesser qualifications. For example, the starkest difference in qualifications between Vallee and
Szewczak is the fact that Vallee had a valid Class A CDL while Szewczak did not. The
Defendant argues that this “is a distinction without a difference as the possession or lack thereof
of a CDL which [sic] can be easily remedied.” The Defendant’s argument is belied by the fact
that the job advertisement specifically provides that the “[a]pplicant must have a valid
commercial driver’s license to legally operate motorized equipment of size and type referenced

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herein” (emphasis added). Viewing the facts in the light most favorable to Vallee – which on this
issue means taking the job announcement at face value – a reasonable jury could conclude that
Szewczak was less qualified for the job than Vallee, as it appears that she met all of the
statement requirements to apply for the job and he did not.
Given this showing, an inference of discrimination on the part of the Defendant arises,
but the Defendant may dispel that inference by articulating a non-discriminatory, legitimate
reason for the personnel action. The Defendant argues that it hired Szewczak because he “had
stronger credentials and an expressed desire for the type of work involved unlike Vallee who
wanted a desk job.” However, Vallee has put forth enough evidence from which the jury could
reasonably conclude that Szewczak did not have stronger credentials; in fact, he did not even
have the required credentials. Thus, even though the Defendant’s burden is light, the Court finds
that it has failed to meet its burden to articulate a non-discriminatory legitimate reason for
choosing Szewczak over Vallee.
For these reasons, the Defendant is not entitled to summary judgment on Vallee’s
discrimination claim.
B. Retaliation
Vallee also asserts a claim for retaliation. The anti-retaliation provision of Title VII
provides that it is “an unlawful employment practice for an employer to discriminate against any
of his employees . . . because [she] has opposed any practice made an unlawful employment
practice . . . or because [she] has made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing.” 42 U.S.C. §2000e-3(a)
Vallee argues that she has put forth sufficient evidence of retaliation to avoid summary
judgment. In order to do so, Vallee must produce evidence from which a reasonable jury could

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conclude: (1) that she engaged in a statutorily protected activity; (2) that she suffered a
materially adverse action by her employer; and (3) there was a causal link between the two.
Benuzzi v. Bd. of Educ. of City of Chicago, 647 F.3d 652, 664 (7th Cir. 2011). “‘Materially
adverse actions’ are those that might dissuade a reasonable employee from engaging in protected
activity . . . ; this category sweeps more broadly than the ‘adverse employment actions’ required
to sustain a discrimination claim.” Id. at 665 (citations omitted). Under this method, “a plaintiff
may offer circumstantial evidence of intentional retaliation, including evidence of suspicious
timing, ambiguous statements, behavior toward or comments directed at other employees in the
protected group, and other bits and pieces from which an inference of discriminatory intent
might be drawn.” Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007).
There is no dispute that Vallee engaged in a statutorily protected activity when she filed a
charge of sex discrimination with the EEOC, but the two remaining elements are contested.
Regarding the second element, Vallee argues that she suffered adverse actions when the
Defendant did not grant her interviews for two subsequent Paint Supervisor openings and when
her supervisor began to treat her differently. Specifically, Vallee argues that she suffered a false
negative performance evaluation, fabricated written discipline, and a turned-hostile supervisor
after she filed the EEOC charge. Vallee argues that
Bewley’s attitude, tone of voice, and overall demeanor changed towards Vallee
after she filed her charge of discrimination. He made rude comments to Vallee,
such as “remember who you work for.” He told Reed, “ladies in the sign shop stir
up trouble.” Bewley told Szewczak to take notes on Vallee.
Finally, when Vallee requested a transfer to a different supervisor, she was transferred to the
interstate panel sign crew, “perhaps the most difficult and labor intensive crews [sic] in the
department.”

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The refusal to interview an applicant because she has engaged in statutorily protected
activity could effectively prevent an employee from advancing her career. In this way, it would
dissuade an employee from engaging in protected activity in the future and could therefore
constitute a materially adverse action. Similarly, viewing the facts in the light most favorable to
Vallee, her supervisor’s actions – sudden rude behavior, written warnings, and negative
performance evaluations – could together dissuade a reasonable employee from engaging in
protected activity in the future. Therefore, a reasonable jury could conclude that the conduct
alleged by Vallee constituted adverse employment actions for Title VII retaliation purposes.
According to Vallee, an inference of causation arises from suspicious timing between the
filing of her charge on June 1, 2010, and the denial of interviews to her for positions in August
and November 2010. However, “[t]he mere fact that one event preceded another does nothing to
prove that the first event caused the second; the plaintiff also must put forth other evidence that
reasonably suggests that her protected speech activities were related to her employer’s
discrimination.” Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (citing Burks v. Wis.
Dep’t of Transp., 464 F.3d 744, 758-59 (7th Cir. 2006)); see also Benuzzi, 647 F.3d at 666 (“The
two-month time frame separating Benuzzi’s first amended EEOC complaint and her second
suspension is, without more, insufficient to give rise to a similar inference [of causation].”).
Here, the timing of Vallee’s charge and her applications in 2010 is not so close to render it
suspicious on its own. However, some of the actions of which Vallee complains add context to
the timing of the Defendant’s actions – for example, Bewley’s remark that “ladies in the sign
shop stir up trouble,” and his sudden decision to take notes on Vallee’s work – and render it
suspect. In addition, Vallee also draws the Court’s attention to the Defendant’s proffered reason
for its failure to interview her. Specifically, the Defendant contends that “Plaintiff was not

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interviewed for this position at this time [i.e., 2010] as she was previously interviewed for the
position in 2009.” However, according to Vallee, this assertion is undercut by the fact that a male
applicant who interviewed in 2009 was again interviewed in 2010. This inconsistency is indeed
quite curious and constitutes the type of “bits and pieces” from which discriminatory intent can
be inferred. Accordingly, after viewing the totality of the facts in the light most favorable to
Vallee, the Court is unable to say that no reasonable jury could find that the Defendant retaliated
against Vallee. Therefore, the Defendant is not entitled to summary judgment on Vallee’s
retaliation claim.
IV. CONCLUSION
For the foregoing reasons, the Defendant’s motion for summary judgment is DENIED.
SO ORDERED:

08/09/2012

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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