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SMITH v. ALLSTATE INS. CORP.

October 23, 1998

ARLINE WHITE SMITH, Plaintiff,
v.
ALLSTATE INSURANCE CORPORATION, Defendant.



The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 The plaintiff, Arline White Smith, filed a five-count Second Amended Complaint against the defendant, Allstate Insurance Corporation ("Allstate"), bringing claims under Title VII, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d)(1). Ms. Smith alleges that Allstate, by failing to promote her on several occasions, discriminated against her on the basis of her race, sex, and age and retaliated against her for filing charges of discrimination. She further alleges that Allstate pays her less than men for the same work. Allstate moves for summary judgment on all counts. For the reasons set forth below, Allstate's motion is granted.

 Background

 The following facts are undisputed: Ms. Smith is a forty-seven year old African American woman. (12(M) St. P 1). She has been employed by Allstate since 1973 and since March, 1993, has been working in Allstate's Matteson, Illinois claims office. (Id. PP 1-2). When she was transferred to the Matteson office from the Oak Lawn office, she became a Claim Unit Manager. (Id. P 2). In mid 1995, she was promoted to her current position of Evaluation Consultant ("EC"). (Id. PP 1, 5). As an EC, Ms. Smith evaluates the dollar value of bodily injury claims as submitted by claim representatives and authorizes settlement amounts. (Id. P 6).

 Each job title at Allstate is classified into a salary grade that reflects the ranking of the job within the company. (Id. P 9). Salary ranges within each grade are from 80% to 120% of the mid-point. (Id.). The EC position is a salary grade 35. (Id.). The Casualty Claim Manager ("CCM") position is a salary grade 37. (Id. P 95). By job description, the CCM does not directly supervise anybody but is nevertheless a tremendous influence in the office. (Id. P 90). When the Market Claim Manager ("MCM") is out, the CCM replaces him or her. (Id.). The CCM also conducts training in the office. (Id.).

 On February 1, 1994, Ms. Smith was denied a promotion to CCM and it was announced that Olga Rivera would receive the promotion. (Id. P 20). On that same day, Ms. Smith and Ms. Rivera had a conversation concerning the promotion. (Id. P 21). Ms. Smith told Ms. Rivera that she was disappointed that she had not received the promotion and that she would do what she had to do to have the matter resolved. (Id.).

 In March, 1994, a CCM opening occurred in the Arlington Heights office. (Id. P 23). The MCM for that office was Frank Popolo. (Id.). Mr. Popolo's superior was the Territorial Claim Manager ("TCM"), Richard Hayne. (Id.). Mr. Popolo testified that when openings occurred within his office, he would attempt to fill them with someone from within the office because it was good for morale and it created another opening within the office. (Id. P 24). He further testified that if there were no qualified persons within his office, he would talk to his superior and discuss other available candidates. (Id. P 25). Mr. Popolo recommended Kathy Gaitan, a licensed attorney, for the CCM position. (Id. PP 26-27). Mr. Hayne testified that he gave great weight to Mr. Popolo's recommendation. (Id. P 26). He made the ultimate decision to promote Ms. Gaitan to the CCM position. (Id. P 27).

 Ms. Gaitan was a Casualty Unit Manager in the Arlington Heights office at the time of her promotion. (Id. P 28). She is white and at that time, was 34 or 35 years old. (Id. P 31). She had been hired by Allstate into a special program that sought to recruit and promote attorneys in the claims department. *fn1" (Id. P 28). Ms. Smith had never worked in Arlington Heights and had never worked for Mr. Popolo. (Id. P 30).

 Michael Seal was appointed to the position of CCM in the Arlington Heights office around June, 1996. (Id. PP 19, 32-33). Sheryl Thomas Bluitt, the Claim Service Manager ("CSM"), was the decisionmaker concerning Mr. Seal's appointment. (Id. P 32). Mr. Seal's previous position was a grade 37 position at Tech Cor. (Id. P 33). Tech Cor is a training facility for Allstate where training and development processes for the company are created. (Id. P 36).

 In May, 1996, John Pieroth was asked to step down from his position of CCM to become an EC in the Matteson office. (Id. PP 95-96). Although the EC position was in a lower salary grade than the CCM position, Mr. Pieroth retained his CCM salary. (Id. P 95).

 The MCM of the Matteson office, Sam Tornabene, recommended John Valaitis for the position of CCM to replace Mr. Pieroth. (Id. PP 49, 68, 96). Mr. Tornabene wanted an experienced CCM at that time and felt fortunate to get Mr. Valaitis given his many years of experience as a CCM. (Id. P 68). Mr. Valaitis had a proven track record as a CCM. (Id.). The appointment of Mr. Valaitis to CCM was not a promotion but a lateral move. (Id. P 69).

 Mr. Tornabene subsequently recommended Collette Thomas, an African American woman, for another CCM position around August, 1997. (Id. PP 19, 70). Ms. Thomas displayed the ability to take on tasks beyond her responsibilities of managing a unit of 12 to 14 employees. (Id. P 71). Ms. Thomas volunteered to go to Seattle, Washington and be the facilitator for the auto casualty claim process redesign implementation. (Id.). Mr. Tornabene felt that Ms. Thomas did an outstanding job with the implementation. (Id.). Paul Huber, the CSM to whom Mr. Tornabene reported, made the final decision to promote Ms. Thomas to the CCM position. (Id. PP 76-77, 79).

 In September, 1997, Mr. Huber promoted Patrick Fitzpatrick to the position of CCM. (Id. PP 19, 79). Mr. Huber testified that he promoted Mr. Fitzpatrick to the CCM position because he felt that Mr. Fitzpatrick was the best person for the job. (Id. P 94). He further testified that he believed Ms. Smith was not qualified to be promoted to the position of CCM because she lacked leadership skills. (Id. P 91).

 Ms. Smith claims that she was illegally discriminated and/or retaliated against when she failed to receive the above promotions to the position of CCM received by Ms. Rivera, Ms. Gaitan, Mr. Seal, Mr. Valaitis, Ms. Thomas, and Mr. Fitzpatrick. *fn2" Ms. Smith also claims that Allstate violated the EPA by paying six male employees more than her for equal work: Mr. Pieroth, Mr. Seal, Anthony Soskich, Harold Landt, Robert Nugent, and Jon Wojicomski.

 February 1, 1994 Promotion of Olga Rivera

 Ms. Smith claims that she was illegally discriminated against on the basis of her race and age when she was denied the promotion received by Ms. Rivera on February 1, 1994. Allstate argues that this claim is time barred because Ms. Smith did not file her charge of discrimination within 300 days of the denial of the promotion. Under Title VII and the ADEA, Ms. Smith had up to 300 days to file a charge with the EEOC since she resides in Illinois, a state which has an agency authorized to grant relief from unlawful employment practices. See Gilardi v. Schroeder, 833 F.2d 1226, 1230 (7th Cir. 1987) (interpreting 42 U.S.C. § 2000e-5(e)(1)); 29 U.S.C. §§ 626(d), 633(b) (stating that the plaintiff has 300 days to file where a state has an agency authorized to grant relief). Ms. Smith filed her EEOC charge on December 20, 1994, more than 300 days after the alleged discriminatory action. Because Ms. Smith did not file a timely charge with regards to this claim, she cannot bring suit under either Title VII or the ADEA. See Movement for Opportunity & Equal. v. General Motors Corp., 622 F.2d 1235, 1240 (7th Cir. 1980) (stating that plaintiffs must file a charge with the EEOC to bring a suit under Title VII); 29 U.S.C. § 626(d) ("No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC].").

 Ms. Smith responds that she in fact notified the EEOC of her initial charge, charge no. 210950889, on November 23, 1994, when she caused a written copy of the charge to be hand delivered to the EEOC. *fn3" Ms. Smith states that the date in her complaint is merely the date on which the EEOC prepared a copy of the charge and not the actual filing date. By stating in her Second Amended Complaint that "a charge of discrimination was filed with the [EEOC] on December 20, 1994," however, Ms. Smith is precluded from retracting that date and stating a new date. *fn4" "It is a well-settled rule that a party is bound by what it states in its pleadings." Soo Line R.R. Co. v. St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997).

 In the alternative, Ms. Smith contends that her claim is not time barred under the continuing violation doctrine. There are three different continuing violation theories: (1) an employer's decisionmaking process takes place over a period of time such that it is difficult to determine the date of the discriminatory act; (2) an employer has an express, openly espoused discriminatory policy; and (3) an employer covertly follows a practice of discrimination over a period of time. Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994). Ms. Smith knew on February 1, 1994 that she did not receive the promotion, so the first theory is to no avail. The second theory is also unavailable since Ms. Smith has not alleged nor has she presented any evidence that Allstate had an explicit, ...


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