Peck v. Kelly Services Inc
Filing
42
DECISION AND ORDER signed by Judge Lynn Adelman on 9/2/16 that defendants motion for summary judgment 29 is GRANTED as to plaintiffs intentional discrimination claims and DENIED as to her retaliation claims. Further ordering that within ten (10) days the parties must provide the court with justification for granting their motions to seal (ECF Nos. 36 , 40 ). (cc: all counsel) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CAROL PECK,
Plaintiff,
v.
Case No. 14-CV-1244
KELLY SERVICES INC,
Defendant.
DECISION AND ORDER
Plaintiff, Carol Peck, alleges that her employer, Kelly Services Inc., violated Title
VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act
(ADEA) by intentionally discriminating against her because of her sex and age and
retaliating against her for opposing such discrimination. Before me now are defendant’s
motion for summary judgment and motions from each party to seal certain supporting
documents.
I. BACKGROUND
Defendant provides staffing services to other companies, such as assisting them
in recruiting and retaining employees. Defendant is organized into several departments,
known within the company as “verticals,” that provide differing services to clients.
Plaintiff started working at defendant as a temporary employee in the Recruitment
Process Outsourcing department (the “RPO vertical”) in 2002 before becoming a fulltime employee there. The RPO vertical recruits employees for other companies. Plaintiff
worked for defendant from 2002 to 2011. She is female and was over 40 years old at all
relevant times.
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In July 2008, as part of a reduction in force within the RPO vertical, plaintiff was
transferred to defendant’s Global Practice Office (GPO), which merged into defendant’s
Global Implementation Services department (GIS) in 2009. GIS internally supports
defendant’s verticals, which in turn provide services to outside companies. Defendant’s
verticals are essentially GIS’s clients.
Plaintiff worked as an implementation manager in GIS supporting the RPO
vertical, in which she had previously worked. Her supervisor was Paul Rubel, Rubel’s
supervisor was Bob Roushey, and Roushey’s supervisor was Kent Schomer. Plaintiff
generally received positive feedback from fellow employees, clients, and her
supervisors.
In September 2009, Stacey Forbes, regional practice lead for the RPO vertical,
contacted Roushey about plaintiff. Forbes complained about plaintiff’s work and conduct
and said that she no longer wanted plaintiff supporting the RPO vertical. In January
2010, Roushey told plaintiff that she would no longer be servicing the RPO vertical
because of structural changes in the RPO vertical and personality issues. In May 2010,
Roushey told plaintiff about Forbes’s complaints. Defendant promoted a male GIS
employee to service the RPO vertical.
In May 2010, defendant promoted Wendy Berg to the position of senior
implementation manager in GIS. Berg is about 14 years younger than plaintiff.
In July 2010, plaintiff’s lawyer sent a letter to defendant complaining about age
and sex discrimination in the workplace.
In September 2010, Rubel assigned Melvin Johnson and Michael Connolly to
lead a project for Johnson & Johnson in Puerto Rico supporting defendant’s Business
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Process Outsourcing (BPO) vertical. Both are male, and Johnson is about 12 years
younger than plaintiff. Plaintiff claims that she was assigned a purely administrative role
on the project, but defendant disputes this.
On October 10, 2010, plaintiff emailed Schomer telling him that she planned to
submit complaints to the Equal Rights Division of the Wisconsin Department of
Workforce Development (ERD) and the Equal Employment Opportunity Commission
(EEOC) alleging discrimination on the basis of sex and age. She filed those complaints
on October 27, 2010.
After filing her complaints, plaintiff claims that her superiors limited one-on-one
communications with her by cancelling meetings, converting one-on-one meetings into
group meetings, or ceasing direct communication entirely. Defendant disputes this.
Plaintiff also claims that Rubel said that he would not talk to her about promotional
opportunities or career advancement while her legal claims were pending. Finally,
plaintiff says that she was assigned to only administrative work after she filed her
complaints. Defendant disputes this, too.
Plaintiff resigned in January 2011 in an email to Rubel, Roushey, and Schomer
indicating that she was doing so because of a pattern of discriminatory and retaliatory
conduct that stalled her career and affected her emotional health and well-being. She
started work at another staffing company the next week.
In October 2011, plaintiff filed additional complaints with ERD and EEOC alleging
further discrimination because of her age and sex and retaliation because she opposed
such discrimination.
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II. DISCUSSION
Plaintiff alleges several violations of Title VII and the ADEA. First, plaintiff alleges
defendant discriminated against her because of her sex in violation of Title VII when it
(1) removed her from servicing its RPO vertical in January 2010 and replaced her with a
male employee and (2) assigned two male employees to lead the Johnson & Johnson
project in September 2010. Next, plaintiff alleges that defendant discriminated against
her because of her age in violation of the ADEA when it (1) assigned Melvin Johnson to
co-lead the Johnson & Johnson project and (2) promoted Wendy Berg to the position of
senior implementation manager in May 2010. Finally, plaintiff alleges that defendant
retaliated against her for complaining about this sex and age discrimination and for filing
complaints with the EEOC and ERD.
A party is entitled to summary judgment if it shows that there is no genuine
dispute as to any material fact and it is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). To survive a motion for summary judgment, a non-moving party must
show that sufficient evidence exists to allow a jury to return a verdict in its favor.
Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005). For the
purposes of deciding this motion, I construe all facts and make all reasonable
inferences in the light most favorable to the non-moving party. Springer v. Durflinger,
518 F.3d 479, 483–84 (7th Cir. 2008).
A. Discrimination Claims
Title VII prohibits an employer from making sex a “motivating factor” in an
employment decision. 42 U.S.C. § 2000e-2(m). The ADEA prohibits an employer from
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discriminating against an employee “because of such individual’s age” if the employee
is at least 40 years old. 29 U.S.C. §§ 623(a)(1)-(2), 631(a).
The Seventh Circuit recently clarified the legal standard to be applied when
considering a summary judgment motion on a claim of intentional discrimination:
That legal standard . . . is simply whether the evidence would permit a
reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex,
religion, or other proscribed factor caused the discharge or other adverse
employment action. Evidence must be considered as a whole, rather than
asking whether any particular piece of evidence proves the case by
itself—or whether just the “direct” evidence does so, or the “indirect”
evidence. Evidence is evidence. Relevant evidence must be considered
and irrelevant evidence disregarded, but no evidence should be treated
differently from other evidence because it can be labeled “direct” or
“indirect.”
Ortiz v. Werner Enterprises, Inc., No. 15-2574, 2016 WL 4411434, at *4 (7th Cir. Aug.
19, 2016). Plaintiffs may put forth direct or circumstantial (i.e., indirect) evidence of
intentional discrimination or proceed under the burden-shifting framework described in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its successor cases.
Although the Seventh Circuit said that its recent decision in Ortiz “does not concern
McDonnell Douglas or any other burden-shifting framework,” it reiterated that “all
evidence belongs in a single pile and must be evaluated as a whole.” Ortiz, 2016 WL
4411434, at *5.
Plaintiff employs the burden-shifting framework, under which she must first
establish a prima facie case of discrimination, the specific elements of which differ
depending on the nature of the claim. See, e.g., Chaib v. Indiana, 744 F.3d 974, 981
(7th Cir. 2014). Next, the defendant must provide a legitimate, nondiscriminatory reason
for its action. Id. at 982. Finally, the plaintiff must show that the defendant’s stated
reason was a pretext for discrimination.
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1. Removal from RPO vertical
Plaintiff claims that defendant discriminated against her because of her sex when
it removed her from servicing its RPO vertical and replaced her with a male employee.
Plaintiff’s claim fails because, even if she can establish a prima facie case, she fails to
provide sufficient evidence to allow a reasonable jury to conclude that defendant’s
stated reason for its action was pretextual.
Defendant states that it acted as it did because Forbes, regional practice lead for
the RPO vertical, complained about plaintiff’s work and conduct and asked that she no
longer be assigned to RPO projects. Defendant presents an affidavit from Roushey
about the matter and a contemporaneous entry that he made in his calendar noting
Forbes’s criticisms of plaintiff. For GIS, a department that services defendant’s verticals,
Forbes’s request was similar to a client request that a specific employee no longer be
assigned to work with it. Forbes’s request was a legitimate, nondiscriminatory reason for
Roushey’s action.
Plaintiff’s arguments are insufficient to raise a genuine issue of pretext. Plaintiff
contends that Forbes’s complaints were not true because she generally received
positive feedback for her RPO work. This is irrelevant. The issue is not whether
Forbes’s criticisms of plaintiff were accurate but whether Roushey acted as he did
because of what Forbes said to him rather than for a discriminatory reason. Plaintiff also
argues that Roushey would not have done what he did on so little information. But,
again, in the face of Forbes’s request, this argument is insufficient to raise a question
about Roushey’s motivation. Plaintiff also points to the lapse of a few months between
Forbes’s request and Roushey’s action and to Roushey’s initial failure to mention
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Forbes’s request to plaintiff. In these respects, Roushey’s handling of the matter may
not have been exemplary, but it does not create a basis for inferring discriminatory
intent. Finally, plaintiff notes that Rubel didn’t mention Forbes’s request in her 2009
year-end performance review in March 2010. However, it is unclear that Rubel was
aware of what Forbes had said to Roushey and, even if he was, his not mentioning it to
plaintiff would not justify an inference of discrimination.
It is also worth noting that, during 2010, more than 70% of the employees in the
GIS department were female and more than 60% were 40 years old or older. See ECF
No. 37-9, at 15. Also, of the five employees who were promoted while plaintiff worked in
that department, four were female, and two were older than plaintiff. This evidence does
not preclude a finding of discrimination, but it cuts against an inference of same.
2. Wendy Berg promotion
Next, plaintiff claims that defendant discriminated against her because of her age
when it promoted Wendy Berg instead of her. In order to succeed on a failure-topromote claim, plaintiff must demonstrate that she was qualified for the position sought.
Riley v. Elkhart Cmty. Sch., No. 15-3166, 2016 WL 3947810, at *3 (7th Cir. July 22,
2016) (citing Jaburek v. Foxx, 813 F.3d 626, 631 (7th Cir. 2016)). Based on the
evidence presented, plaintiff fails to meet this requirement.
The job description for the position to which Berg was promoted, as of May 2010,
required that candidates be “PMP Certified.” ECF No. 30-5, at 4. Neither party ever
explains what this means, but they agree that it is a relevant qualification for the position
and that plaintiff was not PMP certified. Plaintiff contends that such certification was not
a genuine requirement for the position, but the only employee she points to who was
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promoted without such certification was promoted years earlier and it is unclear whether
such certification was then required. Plaintiff also offers the opinion of a former
employee, but he appears to lack personal knowledge of the requirements for the
position at issue because he was not working for defendant in 2010 and, even when he
was, he did not work in the GIS department. Finally, plaintiff points out that some
employees who were promoted did not list PMP certification on their LinkedIn profiles,
but this establishes little, if anything.
3. Johnson & Johnson project
Finally, plaintiff claims that defendant discriminated against her because of her
age and sex when it assigned Johnson and Connolly to lead the Johnson & Johnson
project in September 2010. Defendant responds that Johnson and Connolly were
chosen because they were more qualified to lead this project. Plaintiff’s claim fails
because she cannot establish that defendant’s stated reason for its decision, that
Johnson and Connolly had superior qualifications, was pretextual. The project in
question supported the Business Process Outsourcing (BPO) vertical, in which Johnson
and Connolly both had substantially more experience than plaintiff. Compare Johnson
Training Matrix & Connolly Training Matrix, ECF No. 41, at 2–4, with Peck Training
Matrix, ECF No. 30-6, at 4. Plaintiff argues that she worked in the GIS department
longer than Johnson and Connolly. But, the evidence indicates that Johnson and
Connolly had far more relevant experience than plaintiff. Prior to the Johnson &
Johnson project, Connolly and Johnson had each led several large BPO projects, while
plaintiff had led only a single small one.
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B. Retaliation Claims
Plaintiff also claims that defendant retaliated against her in violation of Title VII
and the ADEA for opposing discrimination because of her sex and age. Both statutes
prohibit an employer from retaliating against an employee for opposing discrimination.
42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d). The method of proof by which plaintiff
proceeds requires her to show that (1) she engaged in statutorily protected activity,
(2) she suffered an adverse action, and (3) there is a causal connection between her
statutorily protected activity and the adverse action. Metzger v. Ill. St. Police, 519 F.3d
677, 681 (7th Cir. 2008).
The parties agree that plaintiff engaged in statutorily protected activity. An
employee engages in protected activity when she files a complaint with her employer
indicating discrimination because of a protected category and when she files charges
with the EEOC or an equivalent state or local agency. Tomanovich v. City of
Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). Plaintiff did both.
Plaintiff
argues
that
defendant
committed
adverse
actions
in
that
it
(1) progressively diminished her responsibilities until she was performing only
administrative work, (2) limited or eliminated one-on-one communications with her,
(3) acted
with
indifference
toward
her
promotional
opportunities
and
career
advancement and, through Rubel, said that it would not talk to her about career
advancement while her case was pending, and (4) constructively discharged her.
Some of these actions were arguably adverse. Employment actions that are
likely to cause an employee’s skills to atrophy and stunt her career are adverse.
Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002). Plaintiff presents
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evidence that after she complained about discrimination defendant reduced her duties
by assigning her to purely administrative duties on the Johnson & Johnson project and
after she filed her EEOC and ERD complaints defendant reduced her duties even
further. A reasonable jury could find that such a reduction in plaintiff’s duties was likely
to cause her skills to atrophy and stunt her career.
It is also arguable whether defendant constructively discharged plaintiff, and
discharge is an adverse action. A constructive discharge occurs when an employer
makes “working conditions so miserable that it drives [an employee] to quit.” Hunt v.
City of Markham, 219 F.3d 649, 655 (7th Cir. 2000). When a discharge is the end result
of an ongoing pattern of retaliation, courts must view the discharge in light of that
ongoing pattern. See Carlson v. CSX Transp., Inc., 758 F.3d 819, 829 (7th Cir. 2014).
Plaintiff presents enough evidence to enable a reasonable jury to conclude that
defendant engaged in an ongoing pattern of retaliation that worsened with each attempt
she made for redress, that her responsibilities were diminished with each complaint she
made until she felt that she had no future with the company. A jury could find that a
reasonable employee would be driven to quit under those conditions.
The other actions that plaintiff cites were not adverse because they did not result
in any injury. See Stephens v. Erickson, 569 F.3d 779, 790 (7th Cir. 2009) (“Federal law
protects an employee only from retaliation that produces an injury . . . .”). These include
the elimination of one-on-one contact, the cancellation of meetings, and the lack of
communication with her by Roushey and Rubel.
Some of these actions, however, while not adverse, arguably constitute evidence
of a causal connection between her statutorily protected activity and the adverse actions
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she did suffer. An example is Rubel’s statement that he would not talk to plaintiff about
promotional opportunities or career advancement while her case was pending. This
statement would support an inference that plaintiff’s supervisors reduced her duties until
they drove her out of her job because she complained about discrimination. The
temporal relationship between the protected activity and defendant’s adverse actions
also supports plaintiff’s claims. Plaintiff provides evidence that defendant reduced her
duties after she complained about discrimination in July 2010 and further reduced her
duties after she filed her EEOC and ERD complaints. Thus, a reasonable jury could find
a causal connection between protected activity and defendant’s adverse actions.
III. MOTIONS TO SEAL
Both parties move to seal supporting documents submitted to the court with their
filings on defendant’s motion for summary judgment. Per General L. R. 79(d)(3),
consistent with this court’s protective order in this case (ECF No. 18), “[a]ny motion to
seal must be supported by sufficient facts demonstrating good cause for withholding the
document or material from the public record.” Neither party has provided any factual
basis for sealing their supporting documents. The parties shall provide good cause for
sealing their respective documents within ten (10) days or I will deny parties’ motions
and order these documents unsealed.
IV. CONCLUSION
IT IS ORDERED that defendant’s motion for summary judgment (ECF No. 29) is
GRANTED as to plaintiff’s intentional discrimination claims and DENIED as to her
retaliation claims.
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IT IS FURTHER ORDERED that within ten (10) days the parties must provide the
court with a justification for granting their motions to seal (ECF Nos. 36, 40).
Dated at Milwaukee, Wisconsin, this 2nd day of September, 2016.
s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge
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