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May 3, 1999


The opinion of the court was delivered by: Keys, United States Magistrate Judge.

                             MEMORANDUM OPINION
                                 AND ORDER

Before the Court is Defendant's Motion for Summary Judgment on Plaintiffs claims of discriminatory failure to promote and constructive discharge. For the following reasons, this Court grants the Defendant's Motion on both counts.


Plaintiff Derrick Bickerstaff, an African-American, began working for Defendant Nordstrom, Inc., in May of 1994, as a stock worker in the Town Square department of Defendant's store in Oak Brook, Illinois. (Def.'s 12(M) ¶¶ 1, 3, 4.) The Town Square department sells women's clothing, including coats, dresses, business attire, and sportswear. (Affidavit of Mary Harmon ["Harmon Aff."] ¶ 2.) The Plaintiff's duties included inventorying stock, putting new stock on the showroom floor, and removing unsold stock from the floor. (Def.'s 12(M) ¶ 4.) At the time of his hiring, Plaintiff was paid $6.00 per hour; in October of 1994, he received a scheduled raise to $6.50 per hour. (Deposition of Derrick Bickerstaff ["Pl.'s Dep."] at 75, 76.)*fn1 In January of 1995, Plaintiff's pay was raised to $7.25 per hour; that raise was ahead of schedule. (Pl.'s Dep. at 76-77; Harmon Aff. ¶ 3.) Plaintiff's pay was then raised again, to $7.95 per hour, in June 1995. (Pl.'s Dep. at 77.) In November of 1995, Plaintiff was promoted to "lead stock worker" of the Town Square department; his new duties included supervising other stock workers in the department and assigning them tasks. (Def.'s 12(M) ¶¶ 6-7; Pl.'s 12(N) ¶ 38.) There were two full-time stock workers in the Town Square department, and one part-time stock worker. (Pl.'s Dep. at 88.) Subsequently, while he was still lead stock worker in the Town Square department, his pay was raised from $7.95 per hour to $9.10 per hour, a raise that was greater than he expected. (Pl.'s Dep. at 196.)

In April of 1996, Plaintiff was transferred to the position of "lead stock worker" at the Point of View department (a women's clothing sales department larger than Town Square) in Defendant's Oak Brook store. (Def.'s 12(M) ¶ 9.) Plaintiff was paid $9.35 per hour as lead stock worker of the Point of View department. (Pl.'s Dep. at 193.) Plaintiff was responsible for supervising three stock workers in that department, according to his supervisor, though Plaintiff alleges that he was responsible for supervising between seven and ten people. (Deposition of Cheryl Ciconte ["Ciconte Dep."] at 43; Pl.'s Dep. at 88.) His duties in that department included "second interviews" of job candidates, in which he had input into, though not authority over, hiring decisions. (Ciconte Dep. at 38.) He also had bookkeeping responsibilities, and continued overseeing other stock workers and delegating tasks; additionally, he was responsible for inventorying a warehouse. (Pl.'s Dep. at 89.) He did not write performance reviews for the stock workers in his department, however. (Def.'s 12(M) ¶ 10(d).) He also did not set the schedules for the workers in his department. (Def.'s 12(M) ¶ 10(h).) Plaintiff received the "Customer Service All—Star Award," an achievement recognized at a company luncheon, in June of 1996. (Def.'s 12(M) ¶ 12.) Twice, in the space of the 14 months he worked there, he asked for a raise; both times he was told that he was then earning the maximum available wage for a lead stock worker. (Pl.'s Dep. at 194-95.)

In October of 1995, Michael Principato, a Caucasian, began working full time in the Receiving and Delivery Department of Defendant's Oak Brook store.*fn2 (Def.'s 12(M) ¶ 36; Pl.'s 12(N) ¶ 7.) During his tenure at Oak Brook, the manager of the department, David Harpe, delegated significant responsibilities to Mr. Principato. (Def.'s 12(M) ¶ 37.) For example, Mr. Principato was in charge of setting up and taking down displays for special events in the store, helped manage the supplies, entered information into the computer terminal, and made and recorded payments to outside vendors. (Def.'s 12(M) ¶ 37.) Mr. Principato also communicated with the store's distribution center and determined where delivery trucks should be sent. (Def.'s 12(M) ¶ 38.) In December of 1996, Mr. Principato was promoted to Receiving and Delivery Manager for Defendant's Indianapolis store; subsequently, because the department at Oak Brook was shorthanded due to Mr. Principato's departure, Plaintiff helped load and unload trucks and deliver merchandise for that department for two weeks. (Def.'s 12(M) ¶¶ 40, 42.) Prior to that time, Plaintiff's experience in the Receiving and Delivery Department had been limited to occasionally helping load and unload the trucks. (Def.'s 12(M) ¶ 41.) Plaintiff alleges that David Harpe, Receiving Manager at the Oak Brook store, offered to teach Plaintiff computer skills relevant to a job in the Receiving and Delivery Department. Mr. Harpe denies making such an offer, however, and states only that Plaintiff indicated an interest in learning those skills. (Pl.'s Dep. at 187; Deposition of David Harpe ["Harpe Dep."] at 45; Affidavit of David Harpe ["Harpe Aff."] ¶ 3.)

In April of 1997, Michele Love, the Store Manager for Defendant in Oak Brook, decided to implement a centralized stock system in Oak Brook. (Affidavit of Michele Love ["Love Aff."] ¶ 4.) She decided that the new system would require a Stock Manager to oversee and coordinate the stock workers for the entire store. (Deposition of Michele Love ["Love Dep."] at 59; Love Aff. ¶ 3, 4.) Ms. Love compiled a list of four candidates for the new Stock Manager job, then narrowed the list to two: Plaintiff and Michael Barry, a Caucasian. (Love Aff. ¶ 5; Def.'s 12(M) ¶ 21; Pl.'s 12(N) ¶ 7.)

Effective May 16, 1997, Mr. Barry was hired by Ms. Love as the new Stock Manager of Defendant's Oak Brook store.*fn4 (Pl.'s Dep. at 147; Def.'s 12(M) ¶¶ 20, 22; Love Aff. ¶ 6.) The Stock Manager position in Oak Brook entailed the same duties and responsibilities as the position that Mr. Barry had held in Troy. (Barry Dep. at 60.) Ms. Love states that she made the hiring decision because Mr. Barry had been doing the same job successfully in Troy. (Def.'s 12(M) ¶ 22.) Plaintiff alleges, and Ms. Love denies, that she told Plaintiff that Mr. Barry was hired because he was married to an employee of the Oak Brook store. (Pl.'s Dep. at 152; Love Dep. at 125-26.) Plaintiff also alleges that he complained that he felt the promotion was denied him due to his race. (Pl.'s 12(N) ¶ 71.)

In May of 1997, Michael Burks, an African-American, was promoted from Assistant Store Auditor to Support Systems Specialist. (Def.'s 12(M) ¶ 27.) Effective June 15, 1997, Plaintiff was promoted to Mr. Burks' old position of Assistant Store Auditor, a move that included a pay raise. (Def.'s 12(M) ¶ 29.) The responsibilities of the new position included reviewing documents sent to the Auditing Department by the sales departments and entering the information into a computer, reviewing audit reports, analyzing reports of merchandise transfers between stores, scanning barcodes, and writing memoranda regarding compliance with audits. (Def.'s 12(M) ¶ 30.) The Assistant Store Auditor position gave Plaintiff an opportunity to learn about other parts of Defendant's business and, potentially, to advance in the company. (Def.'s 12(M) ¶ 30.)

Plaintiff remained in the Assistant Store Auditor position for four days before resigning. (Pl.'s Dep. at 108, 110.) Plaintiff alleges that differences with his supervisor, Teresa Koltes, prompted his decision to resign. (Pl.'s Dep. at 110-11, 118-20.) For example, Plaintiff alleges that Ms. Koltes removed some resource materials on auditing from the Assistant Store Auditor's office before Plaintiff took the job, though Ms. Koltes denies that charge. (Pl.'s 12(N) ¶ 75; Affidavit of Teresa Koltes, Dec. 21, 1998 ["Koltes Aff."] ¶ 2.) While Plaintiff was working in that position, an e-mail intended for him regarding a meeting that he was expected to lead was misdirected to Ms. Koltes. (Pl.'s Dep. at 114-15.) Plaintiff also heard a comment from a clerical worker, Maggie Brewer, that he had not received the desired promotions because he was a "slave boy" or "errand boy"; Plaintiff believed that Ms. Brewer was a friend of Ms. Koltes. (Pl.'s Dep. at 120, 136.) Plaintiff voluntarily resigned from his job with Defendant on June 19, 1997. (Pl.'s Dep. at 108; Def.'s 12(M) ¶ 31.)

In October of 1997, Josh Norris, a Caucasian, was promoted to the position of "lead stock worker" for the entire Oak Brook store.*fn5 (Pl.'s 12(N) ¶ 60; Barry Dep. at 86-88; Def.'s 12(M)(3) Response to Pl.'s 12(N) ["Def.'s 12(M)(3)"] ¶ 60.) As lead stock worker, Mr. Norris coordinated work among stock workers in different departments and spoke regularly with the managers. (Barry Dep. at 87.) Mr. Barry began to devote more attention to managerial responsibilities such as training sessions, setting schedules, and interviewing, and Mr. Norris coordinated the stock workers in different departments. (Barry Dep. at 87.) Mr. Norris was paid $10.25 per hour in that position. (Def.'s 12(M)(3) ¶ 31.)


I. Summary Judgment Standard

Summary judgment should be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). If the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Materiality is determined by the substantive law: "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The movant bears the initial burden of showing that there is no genuine issue of material fact; if the movant meets that burden, the burden shifts to the non-movant to show, through specific facts in the record, that there is "a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Specifically, the non-movant must show evidence sufficient to support each element of the case which he or she will bear the burden of proving at trial. Id. at 322, 106 S.Ct. 2548. The court must, however, construe all facts in the light most favorable to the non-movant, and may not weigh credibility questions or draw inferences from the facts. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

A motion for summary judgment must include, under Local Rule 12(M) of the Northern District of Illinois, a "statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." United States Dist. Ct.Rules, N.D.Ill., General Rule 12(M)(3). The statement must consist of "short numbered paragraphs" supported by cites to "affidavits, parts of the record, and other supporting materials." United States Dist. Ct.Rules, N.D.Ill., General Rule 12(M)(3)(b). The non-movant's response, under Local Rule 12(N), must include "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references" to supporting materials, and "a statement . . . of any additional facts that require the denial of summary judgment . . . All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." United States Dist. Ct.Rules, N.D.Ill., General Rule 12(N)(3). The non-movant's statements must also consist of short numbered paragraphs supported by cites to the record.

Evidence presented in support of or in opposition to summary judgment need not be in "a form that would be admissible at trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. However, to avoid summary judgment, the plaintiff must present "evidence of evidentiary quality—either admissible documents or attested testimony, such as that found in depositions or in affidavits— demonstrating the existence of a genuine issue of material fact." Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994). Evidence is admissible on summary judgment if "a change in form but not in content, for example a substitution of oral testimony for a summary of that testimony in an affidavit, would make the evidence admissible at trial." Winskunas, 23 F.3d at 1268. But hearsay is inadmissible "to the same extent that it is inadmissible in a trial." Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). Evidence other than "depositions, answers to interrogatories, admissions and affidavits . . . must be identified by affidavit or otherwise made admissible in evidence." Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985). Other forms of evidence, without authentication, are inadmissible on summary judgment. Id.

II. Discriminatory Failure to Promote Standard

Title VII of the Civil Rights Act of 1964 makes it illegal "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. ยง 2000e-2(a)(1). Disparate treatment may establish employment discrimination, but only upon a ...

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