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MOORE v. NUTRASWEET CO.

September 23, 1993

ANNA RICHO MOORE, Plaintiff,
v.
NUTRASWEET COMPANY, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Anna Richo Moore ("Richo") *fn1" has sued The NutraSweet Company ("NutraSweet"), alleging racial discrimination in violation of 42 U.S.C. § 1981 ("Section 1981") and both race-based and sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), *fn2" as well as asserting a detrimental reliance claim under Illinois law (over which this Court has supplemental jurisdiction under 28 U.S.C. § 1367). NutraSweet now moves for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, NutraSweet's motion is granted in its entirety and this action is dismissed with prejudice.

 Submissions of the Parties

 This District Court's General Rule ("GR") 12(m) requires every Rule 56 movant to submit a statement of assertedly uncontested facts, with citations to the record in support of each fact alleged. GR 12(n) requires the nonmovant to respond point by point, with citations to the record in support of (1) any claimed dispute as to the movant's version of the facts and (2) any additional facts that the nonmovant chooses to assert. Here the parties have tendered those submissions (and more *fn3" ) and have briefed the issues thoroughly.

 Relevant aspects of the parties' submissions will be referred to in this way:

 
2. Richo's "Answer" to D. Mem.: "P. Mem.--";
 
3. NutraSweet's Reply: "D. R. Mem.--";
 
4. GR 12 submissions: "D. 12(m) P --," "P. 12(n)(1) P --," "P. 12(n)(2) P --" and "D. 12(n)(2) P --" *fn4" ; and
 
5. Exhibits accompanying the parties' submissions: "P. Ex.--" and "P. Ex.--."

 Though the parties' eagerness to do battle over every sentence has made it extraordinarily difficult for this opinion to set forth the background to this dispute in any straightforward fashion, this Court has gone through their submissions in painstaking detail in an attempt to do so. Except as made clear by the text of the opinion, the use of a GR 12 citation without any other reference to the record indicates that the opposing party has not disputed the assertion (or sometimes that a purported dispute is a nit-pick that reflects a claimed distinction without any real difference--see n.5).

 Summary Judgment Standard

 In an effort to demonstrate the existence of material fact issues that would preclude summary judgment, Richo's experienced counsel has waded through and produced volumes of paper (deposition excerpts and documents as well as lengthy memoranda), fighting tooth and nail over every asserted fact. *fn5" To be sure, NutraSweet bears the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)), but that requirement does not destroy Rule 56's "utility as a vehicle for the final disposition of lawsuits without the need for an evidentiary hearing" ( Wilcox v. Niagara of Wisconsin Paper Corp., 965 F.2d 355, 356 (7th Cir. 1992)). Neither sheer bulk (see Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)) nor the existence of a disputed fact of one kind or another necessarily suffices to defeat a summary judgment motion, for a "genuine" issue does not exist unless record evidence would permit a reasonable factfinder to adopt the nonmovant's view ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and only facts that would prove outcome-determinative under the substantive law are "material" ( Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir. 1991)).

 For those purposes this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to nonmovant Richo ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991)). To be sure, while "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" ( McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir. 1992)), that does not negate the potential for summary judgment in such cases ( Washington v. Lake County, 969 F.2d 250, 254 (7th Cir. 1992). Moreover, "a plaintiff facing the prospect of summary adjudication cannot 'sit back and simply poke holes in the moving party's summary judgment motion'" ( Young In Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993)).

 Facts

 This section will provide the background of Richo's conflict with NutraSweet in what should be sufficient detail to illuminate the issues. Some additional particulars are set forth as necessary in the later text of this opinion.

 NutraSweet's Legal Department

 NutraSweet manufactures, sells and distributes among other items a sweetener ("aspartame") and a fat substitute ("Simplesse") that are used in food and beverages (D. 12(m) P 1). It has its own legal department, which at all times relevant to this litigation was run by Vice President-General Counsel Linda Gohlke ("Gohlke," a white female) and Deputy General Counsel Steven Goldberg ("Goldberg," a white male). Their department included attorneys in three positions: Directors, Senior Attorneys and Attorneys (P. 12(n)(2) P 9).

 Richo (a black female) is a May 1986 graduate of DePaul University Law School. *fn6" After receiving her diploma she worked at Peterson, Ross, Schloerb & Seidel and was admitted to practice in 1987 (D. 12(m) PP 15-16). *fn7"

 During the summer of 1988 Richo decided to seek work in a corporate in-house legal department and utilized a search firm to facilitate her career move (id. P 17). Toward the end of 1988 a member of that search firm told Richo of an opening in NutraSweet's legal department (id. P 18). Richo, who was interested in the position, then met with Goldberg and another attorney for an initial interview (id. P 19). Having passed that hurdle, Richo was called back for a second round of interviews in early 1989. Before that second session Richo notified NutraSweet that she was pregnant, and in the course of the interviews she said she was expecting the baby during August 1989 (id. P 20).

 During that second set of interviews Richo met with Gohlke (id. P 22), who said that she was looking to hire a black person into the legal department (id.; D. Ex. 1: Richo Dep. 151-52). *fn8" Ultimately Richo received an offer to start at $ 70,000, an increase over what she was then making. At no point during the interview process did bonus eligibility arise, nor did any recruiter or anyone from NutraSweet mention that Richo was eligible for or would receive a bonus (id. 168, 309). Richo accepted NutraSweet's offer and joined NutraSweet's legal department on April 24, 1989 (D. 12(m) P 2).

 At that time NutraSweet's legal department was divided into three groups: Litigation and Regulatory Law ("Litigation"), Commercial Law ("Commercial") and Patent and Intellectual Property ("Patent") (id. P 3). Because each party focuses on the structure and personnel of those departments, this opinion turns to each department briefly.

 Before Richo joined Litigation, it comprised just two lawyers, Senior Attorney Jack Silhavy ("Silhavy") and Attorney Gwenda Burkhardt ("Burkhardt") (id. P 4). Silhavy (a white male) graduated from Loyola University School of Law in 1981 and joined NutraSweet on October 20, 1986 after having worked for three firms, most recently spending a three-year stint at Wildman, Harrold, Allen & Dixon (id. P 5). Burkhardt (a white female) graduated from John Marshall School of Law in January 1982. Before coming to NutraSweet on November 12, 1986, she had been employed for 4-1/2 years as an attorney at Vedder, Price, Kaufman & Kammholz (id. P 6). On April 1, 1990 Silhavy received a promotion and became Director of the Litigation department (id. P 7). *fn9" Richo and Burkhardt became responsible to him, and he reported to Goldberg (id.).

 At the time of Richo's hire, Patent comprised three white male attorneys (id. P 9). Its Director was John Sanders ("Sanders"), a 1980 graduate of John Marshall with prior experience in three major companies' patent departments (id.; D. Ex. O). *fn10" Sanders supervised Jeff Hoster ("Hoster"), who graduated from University of Illinois College of Law in 1983 and had spent four years at Exxon (D. Ex. 26), and Craig Bell ("Bell"), a 1980 University of Pennsylvania School of Law graduate who had previously worked as an associate in a law firm and as an assistant district attorney (D. Ex. 18). Bell left NutraSweet shortly after Richo joined, and Attorney Andrew Solomon ("Solomon," a white male), who had graduated from University of Missouri School of Law in 1985 and had then worked as a law firm associate, joined soon thereafter (D. 12(m) P 10; D. Ex. 30).

 Commercial comprised four attorneys when Richo began to work in the legal department. Its Director was Cathy Anderson ("Anderson," a white female), a 1976 graduate of Loyola who had joined NutraSweet in 1986 (D. 12(m) P 11; P. Ex. U; D. Ex. 17). Christine Karbowiak ("Karbowiak," a white female) *fn11" was a Senior Attorney who had joined NutraSweet's legal department in 1986. She had graduated from University of Illinois in 1978 and, before joining NutraSweet, had worked as a law firm associate and at Searle, which until 1986 had been NutraSweet's "sister company" (P. 12(n)(2) PP 12-13). Also in Commercial were Senior Attorney Carmela Zammuto ("Zammuto," a white female), who had graduated from DePaul in 1980, and Attorney Greg Berenstein ("Berenstein," a white male), a 1985 graduate of the University of Iowa College of Law who had joined NutraSweet in 1986 (something over a year after graduation) after having worked as a law firm associate (P. Ex. U; D. Ex. 20; D. Ex. O). At that point each of the other three attorneys reported to Anderson, who was in turn supervised by Goldberg (D. 12(m) P 11). Additionally, Gohlke herself practiced in Commercial and performed some supervisory functions, though the parties dispute the extent of her supervisory role (D. 12(m) P 11 and P. 12(n)(1) P 11).

 Commercial experienced some changes during 1989 and 1990. In 1989 two new hires came aboard. In May 1989 Deirdre Cody ("Cody," a white female), *fn12" who graduated from law school at the University of Georgia in 1984 and who had since worked at Mayer, Brown & Platt, at Shefsky, Saitlin & Froelich Ltd. (now Shefsky & Froelich Ltd.) and at Chicago Pacific Corporation, signed on (P. Ex. E: Cody Dep. 14-15). And on September 25, 1989 NutraSweet hired Warren Grayson ("Grayson") as a Senior Attorney. Grayson (a white male) had graduated from John Marshall in 1980 and had been Division General Counsel-Assistant Secretary at Carson Pirie Scott & Company (D. 12(m) P 14; D. Ex. O).

 In February 1990 Anderson requested and received part-time status so that she could spend more time with her children (D. Ex. B: Anderson Dep. 18-19). In November 1990 Anderson was asked to return to work full-time, failing which she would have to give up her position as Director. Gohlke felt that the position required more attention than a part-time employee could provide, at least in part because the company was changing and she envisioned more legal work that would be performed by fewer individuals (D. Ex. F: Gohlke Dep. 42-44). Anderson chose not to return full-time at that point and became a Senior Attorney. Grayson was promoted to the Director position. *fn13"

 Compensation Other Than Salary

 NutraSweet has at least two forms of compensation above salary: the management incentive program ("MIP") and the special awards program ("SA" or "special awards"). *fn14" MIPs tended to be larger than special awards, and Goldberg understood that there was a cap on special awards, which he recalled as being $ 5,000 (D. Ex. 14: Goldberg Dep. 51).

 As already stated, before Richo was hired no one from any recruiter or from NutraSweet mentioned to her that she would receive or be eligible for a bonus at NutraSweet (D. Ex. 1: Richo Dep. 168, 309). Then many months later (at some point in 1990) Richo heard attorneys talking about both special awards and bonuses. In March 1990 Richo was notified that she had been selected to receive a $ 2,500 special award (D. Ex. 4). That did not trouble her (D. Ex. 1: Richo Dep. 320):

 
When I got this I was like okay, I have got my bonus, *fn15" and I remember thinking it is probably less because I had the maternity leave and I was only here for half of '89. . . .

 Richo still heard attorneys using the terms bonus and special award, and wanting to clarify that she was bonus-eligible she turned to Goldberg (id. 318-19). He told her she was (id. 321). *fn16" She did not ask him how bonuses were calculated, and even her own testimony reflects that she did not ask specifically about the two plans, instead using only the phrase "bonus eligible" (id.; P. 12(n)(1) P 49 tries to hedge somewhat on that score, but the record is uncontradicted).

 That issue came up again at the very end of November 1990, when Richo sent a memo to Goldberg and Silhavy asking about the structure of the legal department, its different grade levels and the differences between bonuses and special awards (D. Ex. 5). She specifically asked whether bonuses and special awards were the same, how people qualified for either and what each had as its maximum and minimum limits (id.). Not hearing quickly from either of them, Richo went to Goldberg some time in December. Goldberg told her that special awards and bonuses were "essentially the same" but had historically (though not presently) come out of "different pots of money" (D. Ex. 1: Richo Dep. 330-31).

 NutraSweet's 1991 Reconfiguration

 NutraSweet's patent on aspartame was set to expire on December 14, 1992. On June 1, 1990 Robert Flynn ("Flynn"), who in previous years had been a member of NutraSweet's Board of Directors, became its Chief Executive Officer (D. Ex. 12: Flynn Dep. 5; D. 12(m) P 55). He testified that NutraSweet anticipated a 50% decrease in earnings and feared increased competition due to the patent's expiration (D. Ex. 12: Flynn Dep. 92-93). In response Flynn created a new vision for the company and charged the management team with introspective examinations of their organizations that would create cost reductions from $ 40 to $ 60 million (id. 93-94). Flynn also instructed those who reported directly to him to restructure their organizations and to recommend staff reductions (id. 94-95; D. Ex. 13: Gohlke Dep. 116; D. 12(m) P 61).

 Gohlke then met with individuals in NutraSweet's business groups as to what support they would need in the future (see, e.g., D. Ex. 13: Gohlke Dep. 121). Gohlke told Goldberg that reductions would be made in the legal department and that he should proceed to build the department from zero (D. Ex. 14: Goldberg Dep. 146). *fn17" She said it was likely that other than the two of them the post-reconfiguration legal department would comprise only one or two litigators, one patent attorney and perhaps only two commercial attorneys (D. Ex 12: Gohlke Dep. 120-21; D. Ex. 14: Goldberg Dep. 146; D. 12(m) P 64). Gohlke also met with the heads of the three practice groups: Silhavy (Litigation), Sanders (Patent) and Grayson (Commercial) (D. Ex. 12: Gohlke Dep. 127, 141). *fn18" According to Gohlke and Goldberg, each group was analyzed individually:

 
1. In Litigation Richo rather than Burkhardt was terminated. *fn19" Goldberg testified that because the workload would remain constant despite the cutback, the attorney with more experience, who would need less supervision and could do increased and more diverse work, was retained.
 
2. In Patent Solomon was terminated. Goldberg testified that decision was influenced by Sanders, who thought Hoster's greater experience was determinative (D. Ex. 14: Goldberg Dep. 150).
 
3. Decisions in Commercial were made on a different basis. Gohlke, who had commercial experience herself, determined that the department would need two lawyers with "major jobs," one to represent the NutraSweet business groups and one to represent the Simplesse business group (D. 12(m) P 68). It was also decided that only one lawyer would be needed to assist them (id.). Gohlke wanted Anderson and Grayson to take the two lead spots (D. Ex. 13: Gohlke Dep. 127-30). Anderson, who did not want to return to work full-time, declined. Grayson and an outside candidate, David Bowman ...

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