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GIBSON v. AMERICAN LIBRARY ASSN.

September 16, 1993

MARLA GIBSON, Plaintiff,
v.
AMERICAN LIBRARY ASSOCIATION, Defendant.


Conlon


The opinion of the court was delivered by: SUZANNE B. CONLON

MEMORANDUM OPINION AND ORDER

Plaintiff Marla Gibson sues defendant American Library Association ("ALA") for race and sex-based employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, Pub. L. 102-166 § 101(2) (Nov. 21, 1991). Gibson also sues under the Equal Pay Act, 29 U.S.C. § 206(d). In addition to these federal claims, Gibson sues ALA for intentional infliction of emotional distress, invoking the court's supplemental jurisdiction under 28 U.S.C. § 1367. The court recently granted ALA's motion for summary judgment in part: Summary judgment was granted as to Gibson's claim under the Equal Pay Act (Count V), Gibson's claim of sex discrimination under Title VII (Count II), Gibson's supplemental claim of intentional infliction of emotional distress (count III), and her claims of constructive discharge in Counts II and IV. ALA's summary judgment motion was denied with respect to Gibson's claims of race-based wage discrimination and racial harassment under Title VII and 42 U.S.C. § 1981 (Counts II and IV). See Gibson v. American Library Association, 846 F. Supp. 1330 (N.D. Ill. 1993) ("the opinion"). ALA seeks reconsideration of those portions of the opinion denying summary judgment on Gibson's race-based wage discrimination and racial harassment claims.

 Motions for reconsideration serve a limited function. Keene Corp. v. International Fidelity Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984). Accord Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985). A court will ordinarily grant a motion for reconsideration to correct manifest errors of law or fact or to consider newly discovered evidence that could not have been adduced during the pendency of the previous motion. Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987); Kohl v. Murphy, 767 F. Supp. 895, 904 (N.D. Ill. 1991). Motions for reconsideration may not raise legal theories or arguments that could have been raised in the original motion. Id. at 904. Accord Woods v. Michigan City, 940 F.2d 275, 280 (7th Cir. 1991).

 1. Race-Based wage Discrimination

 Seventh Circuit opinions interpreting and applying County of Washington v. Gunther, 452 U.S. 161, 68 L. Ed. 2d 751, 101 S. Ct. 2242 (1981) (plaintiff alleging wage discrimination under Title VII need not satisfy the Equal Pay Act's equal work requirement where the plaintiff presents direct evidence of intentional discrimination), have held that in order to prevail on a claim of wage discrimination under Title VII, a plaintiff must present direct evidence of intentional discrimination. See, e.g., E.E.O.C. v. Sears, Roebuck & Co., 839 F.2d 302, 342-43 (7th Cir. 1988); American Nurses' Ass'n v. State of Illinois, 783 F.2d 716, 721 (7th Cir. 1986); see also Gallagher v. Kleinwort Benson Gov. Securities, 698 F. Supp. 1401, 1405 (N.D. Ill. 1988) (noting the Seventh Circuit's requirement of direct evidence).

 The court's opinion denying summary judgment on Gibson's wage discrimination claims found that Gibson had presented sufficient direct evidence of discrimination to withstand ALA's motion for summary judgment. In particular, the court found Gibson's evidence that a white woman (Peggy Barber) was granted a salary increase to achieve pay equity with her peers - in conjunction with Gibson's evidence concerning ALA's job-classification study and ALA's efforts at achieving pay equity - to be sufficient direct evidence. However, as ALA now correctly points out, the court's finding was predicated on the mistaken impression that Barber's "pay-equity" salary increase was based on ALA's job-classification study. See Opinion at 12. The court reasoned that if ALA adopted the findings of its own job-classification study and granted a pay-equity salary increase for a white woman but not for Gibson, then sufficient direct evidence of discrimination was presented to withstand summary judgment. Cf. Gunther 452 U.S. at 180-81, 68 L. Ed. 2d 751, 101 S. Ct. 2242 (county's adherence to its comparable worth study for male salaries but not female salaries constitutes direct evidence). ALA's motion for reconsideration points out that Barber's salary increase, while indisputably aimed at achieving pay equity with her peers, predated ALA's job classification study. ALA Br. at 4 n.2. Thus, it cannot be concluded that ALA adopted and implemented the findings of its study for a white woman but not for Gibson; hence, Gibson's direct evidence of discrimination dissolves. At best, Gibson is left with circumstantial evidence of wage discrimination - amounting to a comparison of Gibson's salary with other ALA employees classified in the same job title classification (Supervisor II). This is insufficient to establish a claim of wage discrimination under Title VII or 42 U.S.C. § 1981. Cf. American Nurses' Ass'n v. State of Illinois, 783 F.2d 716 (7th Cir. 1986). Accordingly, ALA's motion for summary judgment on Gibson's race-based wage discrimination claims in Counts II and IV must be granted.

 2. Racial Harassment

 ALA's request that the court reconsider its denial of summary judgment on Gibson's racial harassment claims is based on two grounds: First, ALA maintains that Gibson's evidence of racial motivation all relates to employees uninvolved in the incidents about which she complains and hence has no relevance to those incidents. Second, ALA contends that Gibson's allegations do not rise to the level necessary to support a racial harassment claim.

 In denying ALA's summary judgment motion, the court found that the affidavits of Gibson's coemployees attesting to their experiences with racism at ALA provided sufficient evidence to support an inference that racism permeated the ALA supervisory ranks and may have been a motivating factor in the incidents about which Gibson complains. Opinion at 15-17. ALA contends that the coemployees' affidavits all relate "to employees uninvolved in the incidents complained of by Plaintiff or to matters having no bearing in those incidents." ALA Br. at 9. ALA argues that generally actions and comments by employees not involved in the actions complained of by a plaintiff cannot provide a basis for charging other employees with discrimination. See, e.g., Fortino v. Quasar Co., 950 F.2d 389, 395 (7th Cir. 1991); but cf. Jardien v. Winston Network, Inc., 888 F.2d 1151, 1155 (7th Cir. 1989) (finding remarks of an uninvolved employee relevant where jury could find that the decision-maker accepted that employee's input).

 ALA is incorrect in asserting that the affidavits all relate to persons uninvolved in the incidents complained of by Gibson or having no bearing on them. David Booz attested that when his offices were moved in 1989 or 1990, Ernest Martin informed him of the move in advance so that he could plan the move and work out its logistics. Booz Aff. P 16. Gibson alleges, and Martin does not deny, that when her offices were moved she was afforded no advance notice. Similarly, Mattye Nelson attested that in the past, when personnel were moved, they were given advance notice. Nelson Dep. at 49. Delstene Atkinson, an African American woman, attested that Linda Crismond, then ALA's executive director, was less respectful toward minorities than nonminorities. Atkinson Dep. at 21-22. Atkinson noted that "on several occasions" Crismond "totally disregarded me, totally disrespected me as a person." Id. at 21. Atkinson stated that Crismond was also insensitive to Gibson. Id. One of Gibson's many allegations of harassment involves Crismond's rudeness to her. Thus, the affidavits of Booz, Nelson and Atkinson speak directly about employees (Martin and Crismond) involved in the incidents about which Gibson complains and the affidavits speak directly to those issues. Furthermore, the affidavits are sufficient to raise a genuine issue as to the existence of racial discrimination. ALA's evidence that Martin chose not to inform Gibson about her office relocation because of her angry and emotional reactions to his ideas in the past, see Second Martin Aff. P 3, and ALA's evidence that Crismond was gruff and insensitive to nonminorities as well as minorities, see id. P 7; Barber Aff. P 3, at best indicates the existence of a factual issue with respect to Martin's and Crismond's intentions and motivation in dealing with Gibson.

 Robert Smoot attested to a particularly pernicious and troublesome event. Smoot stated that he and two other African American employees were told by the comptroller, Russ Swedowski, that if - during the course of an upcoming meeting with Martin - any of them accused their supervisor, Jennifer Tam, of taking racially motivated actions, they would be fired on the spot. Smoot Aff. Smoot's testimony is evidence that a member of ALA's management forced a conspiracy of silence regarding racial discrimination upon lower level employees by threat of termination. *fn1" ALA contends, however, that this is irrelevant because Swedowski is not directly implicated in any of Gibson's claims.

 In addition to his testimony discussed above, Booz also attested that he was instructed by his supervisor to subject the application of a minority job applicant to more rigorous scrutiny - including contacting five rather than the customary three references and contacting the applicant's college to verify that he had graduated - than that given to white applicants. Booz Aff. PP 3, 4. ALA also contends that this testimony is irrelevant because Booz's supervisor, Susan Odmark, who allegedly instructed him to conduct this rigorous evaluation, is not implicated by Gibson's claims.

 Because the testimony of Booz (discussed above), Nelson, and Atkinson sufficiently raises a genuine issue as to racial discrimination, the court need not reach the issue of whether Smoot's and Booz's testimony concerning employees not directly involved in the incidents alleged by Gibson is relevant to her claims of racial harassment.

 Finally, ALA seizes on the court's statement that "much of Gibson's evidence appears to involve relatively minor incidents," Opinion at 17-18, *fn2" and contends that Gibson's allegations do not rise to the level of severity necessary to support a racial harassment claim. *fn3" Implicitly suggesting that the court merely summed Gibson's "minor incidents" in finding that she raised a genuine issue as to racial harassment, ALA notes that a Title VII plaintiff does not prove racial ...


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