the Senior Sales Representative position, and that the latter position was a grade 14 position, one grade higher than the former position in the Tribune's system. Clearly, Harriston was not demoted or fired when she was transferred to the Senior Sales job. She contends that she was demoted because the EEO/Employment position was in management, while the Senior Sales position was non-management, but she fails to explain the legal significance of the managerial, non-managerial distinction, if it is accurate. Moreover, Harriston does not dispute that she was replaced in the EEO/Employment job by a black person, someone in the same protected class as herself.
Harriston's claim that she was excluded from the MIF program is also deficient. To comply with the second element of a prima facie case under Title VII, Harriston must show she was qualified for the MIF program. She does not dispute, however, that none of her predecessors in the EEO/Employment position were eligible for the MIF program. Harriston has simply failed to offer evidence from which it could be inferred that exclusion of the EEO/Employment Manager position from the MIF program (until Harriston's black successor took the position) constituted race discrimination in violation of Title VII.
Analysis under a disparate impact theory further shows that the Tribune is entitled to summary judgment on Harriston's MIF exclusion claim. Harriston has offered insufficient evidence from which it could be inferred that she was treated differently from whites for MIF-eligibility purposes. Collins v. Illinois, 830 F.2d 692, 698 (7th Cir. 1987). She has also failed to offer evidence that might undermine the Tribune's proffered profit-enhancement business justification for the MIF eligibility rules. See Allen v. Seidman, 881 F.2d 375, 377 (7th Cir. 1989) (the challenged business practice need only "serve, in a significant way, the legitimate employment goals of the employer") (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 2125-26, 104 L. Ed. 2d 733 (1989)). In short, Harriston has failed to show either that the MIF eligibility rules, as applied to her, had either the effect or purpose of race discrimination.
Harriston's evidence in support of her claim that the Tribune failed to promote her in violation of Title VII is also insufficient as a matter of law. The uncontradicted facts show that Harriston was promoted to the EEO/Employment Manager position, and that she was thereafter transferred back to an advertising sales position without loss of job status. She does not identify any higher positions within the Tribune that she sought, was qualified for, or which were subsequently filled with members of a non-protected class. There is nothing even remotely resembling a prima facie case under Title VII regarding the Tribune's alleged failure to promote Harriston.
The last claim in Harriston's Title VII count, alleging that she was constructively discharged, also lacks sufficient evidentiary support to withstand the Tribune's summary judgment motion. A constructive discharge is established only when a employer "makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation . . ." Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 314 (7th Cir. 1986) (quoting Vaughn v. Pool Offshore Co., 683 F.2d 922, 926 (5th Cir. 1982)), cert. denied, 479 U.S. 1092, 94 L. Ed. 2d 160, 107 S. Ct. 1304 (1987). The working conditions must have been "so onerous or demeaning that the employee has effectively been fired in place and compelled to leave." Henn v. National Geographic Soc'y, 819 F.2d 824, 829-30 (7th Cir.), cert. denied, 484 U.S. 964, 98 L. Ed. 2d 394, 108 S. Ct. 454 (1987).
Harriston alleges that, after she was transferred back to Advertising, Riordan engaged in a harassment campaign at the directions of defendants Sloan and Charles Brumback between 1987 and 1989, with the intention of forcing Harriston's resignation. The alleged campaign included a series of steps allegedly intended to make it difficult for her to sell advertising (such as by forcing her to work on the RECAS project and assigning her to an inferior sales territory), reprimanding her more severely than white advertising sales persons when her sales figures declined, excluding her from office activities, and failure to respond adequately when her car was vandalized in a company parking lot.
The court finds, however, that these allegations, to the extent they are supported by the evidentiary materials, are insufficient to establish a constructive discharge as a matter of law. Harriston does not dispute that her sales performance declined, although she does contest the extent of the decline. The Tribune's response, some critical memos and requests that Harriston develop a remedial response, does not seem onerous under the circumstances. As the Seventh Circuit noted in Henn: "selling is a risky profession, and it does not make a salesman's job unbearable to remind him that he must produce and that there are penalties for failure." 819 F.2d at 830. Harriston was given an opportunity to explain her problems to her superiors; she chose instead to resign. It does not appear under the circumstances that Harriston was forced into that decision. The working conditions Harriston faced were not sufficiently onerous to establish a constructive discharge.
Finally, the court finds that the Tribune is entitled to summary judgment on Harriston's parallel claims under the ADEA for reasons similar to those pertaining to Harriston's Title VII claims. Harriston's initial burden of establishing a prima facie case under the ADEA is a modified version of her Title VII burden: she must show (1) her membership in the protected age class (at least age forty), (2) that she is qualified for the position held or sought, (3) termination or demotion from that position, and (4) replacement by a person under age forty. Grohs v. Gold Bond Bldg. Prods., 859 F.2d 1283, 1285-86 (7th Cir. 1988). Here Harriston falters on the third element; as discussed above, she was not terminated or demoted from the EEO/Employment Manager position.
The Tribune is entitled to summary judgment on Harriston's failure-to-promote and constructive discharge claims under the ADEA for the reasons discussed above with regard to the parallel claims under Title VII.
For the above reasons, the court denies plaintiff Harriston's motion for class certification, and finding that there are no genuine issues of material fact with regard to Harriston's claims under either Title VII or the Age Discrimination in Employment Act, grants defendant Tribune's motion for summary judgment.
IT IS SO ORDERED.