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March 28, 2003


The opinion of the court was delivered by: Ronald A. Guzman, United States Judge


This is a Title VII action by Abha Rawat against her former employer Metropolitan Life Insurance Company alleging employment discrimination based on national origin as well as retaliation. Defendant seeks summary judgment as to all of plaintiff's claims except the discrimination claim based on her termination. For the reasons stated below, the Court grants defendant's motion for partial summary judgment.


The following facts are undisputed. Plaintiff is a native of India. (Def.'s LR 56.1(a)(3) ¶ 1.) She began working for defendant in 1991 and was terminated on February 12, 1999. (Def.'s Ex. F; Def.'s LR 56.1(a)(3) ¶ 12.) Plaintiff began her employment in the defendant's Hinsdale, Illinois office as a QBC clerk.*fn1 (Def.'s LR 56.1(a)(3) ¶ 1.) Branch administrator Lynn Roach and branch manager Roshan Goel managed the Hinsdale office at this time. (Pl.'s Ex. 11i.) On August 23, 1995, while still working at the Hinsdale office, plaintiff complained internally to the company's regional vice president Kim Taylor regarding an incident with Goel. (See Def.'s LR 56.1(a)(3) ¶ 2; Pl.'s Ex. 1; Def.'s Ex. D.) Plaintiff's internal complaint stated that Goel commonly treated her in an abusive manner, which affected her "mental peace and health," and requested a transfer to another office. (Def.'s Ex. D.)

Plaintiff, however, was not transferred until 1996, when Taylor moved her to the defendant's Elmhurst office. (Def.'s LR 56.1(a)(3) ¶ 3.) Branch administrator Juanita Babcock and branch manager Jack Cholakian managed the Elmhurst office. (Pl.'s Ex. 11.)

On October 23, 1996, Lynda Einspar, a QBC clerk at the Hinsdale office, filed a sexual harassment complaint against Goel with the Illinois Department of Human Rights ("IDHR"). (Def.'s Ex. G.) On May 28, 1997, defendant's attorney asked plaintiff to sign a prepared affidavit for use in connection with the Einspar case. (Def.'s Exs. E & F.) The affidavit, as prepared by defendant's attorney, characterized Goel as a "dictator," stating that he yelled and screamed at employees in an inappropriate manner and opened employees' office mail. (Def.'s Ex. F.) The affidavit stated plaintiff witnessed Goel yelling at a former employee, Mr. Raja Rajagopalan. (Id.)

Before signing the affidavit, plaintiff added a handwritten paragraph stating that Goel threatened her and discriminated against her which affected her mental health and peace. (Def.'s Ex. F.) Defendant presented the amended affidavit to the IDHR along with affidavits from several other employees who had worked with Goel at the Hinsdale office. (Def.'s Ex. G.) However, it appears that plaintiff's statement was the only one that reflected negatively on Goel. (Def.'s Ex. G.)

The IDHR dismissed Einspar's claims on September 3, 1997 concluding that she failed to establish a prima facie case for sexual harassment because the evidence showed that Goel yelled at and opened the mail of both male and female employees. (Id.) Thereafter, the Equal Employment Opportunity Commission issued Einspar a right-to-sue notice and on February 28, 1998, defendant settled Einspar's claim. (Def.'s Ex. H; Pl.'s LR 56.1(b)(3)(B) ¶ 14.) On April 9, 1998, Babcock and Cholakian rated plaintiff's 1997 performance "generally effective." (Def.'s Ex. Z.)

In mid-October 1998, defendant announced plans to close the Elmhurst office and merge it with defendant's Downers Grove office. (Def.'s App., Taylor Dep., at 110.) Although the Elmhurst office was not officially closed until January 18, 1999, office management immediately began downsizing its staff. (Def.'s Ex. L.) Plaintiff, along with two other QBC clerks, were among the employees management immediately transferred from the Elmhurst office. (Def.'s App., O'Malley Aff. ¶¶ 3-5.) The Downers Grove office, however, was not yet prepared to absorb the influx of Elmhurst employees, and as a result, plaintiff was temporarily reassigned to the O'Hare office, where she served in a lateral position. (Id.; Def.'s LR 56.1(a)(3) ¶ 21.) Although she worked from the O'Hare office, plaintiff was paid from the Downers Grove payroll. (Def.'s LR 56.1(a)(3) ¶ 7.)

As a result of the merger, Downers Grove had eleven QBC clerks on its payroll. (Def.'s Ex. L.) After assessing its staffing needs, Downers Grove branch manager Mike O'Malley and branch administrator Pamela Szekely concluded the office did not need eleven clerks and thereafter instituted an evaluation process to determine which of the eleven clerks to retain at the Downers Grove location.*fn2 (Def.'s Ex. L.) At the same time, O'Hare branch manager Raja Banerji told plaintiff that O'Hare needed a permanent full-time QBC clerk and that he was interested in taking her on full-time. (Def.'s App., Rawat Dep., at 457.) Evidently, Banerji communicated this to Rich Reilly, the company's regional administrator. (Def.'s Ex. M.)

As part of the evaluation process, management rated each of the eleven clerk's 1998 performance from 1 to 5, with 1 being the lowest and 5 the highest. (Pl.'s Ex. 11v.) Based on these evaluations, O'Malley and Szekely recommended to Taylor which of the eleven to retain at Downers Grove, and which of the eleven to declare as excess. (Def.'s Ex. M.) It is unclear from the record whether Taylor or O'Malley and Szekely ultimately decided which of the clerks to keep and which to excess.

Plaintiff was the only clerk of the eleven that was from India. (Pl.'s LR 56(b)(3)(B) ¶¶ 24, 25.) Likewise, plaintiff was the only clerk of the eleven who filed an internal harassment complaint during her employment or who took part in the Einspar case. (Id. ¶¶ 26, 27.) On January 26, 1999, Babcock, plaintiff's Elmhurst supervisor, assessed plaintiff's 1998 performance as a 3. (Pl.'s Ex. 11v.; Def.'s Ex. M.) However, at O'Malley and Szekely's request, she later reduced that assessment to a 2. (Pl.'s App., Babcock Dep., at 61-64; Def.'s Ex. M.)

On February 3, 1999, relying on their 1998 performance evaluations, O'Malley and Szekely recommended that defendant not retain plaintiff and three other clerks at the Downers Grove office. (Def.'s Ex. L.) Among the other three clerks not retained at the Downers Grove office was Denise Kasper, who like Plaintiff, had her performance evaluation reduced by O'Malley and Szekely from a 3 to a 2. (Id.) At this time, O'Malley and Szekely were not aware that plaintiff made the 1995 internal complaint or that she signed the affidavit in the Einspar case. (Def.'s LR 56.1(a)(3) ¶ 14.)

On February 4, 1999, Reilly stated that he and Taylor were prepared to adopt O'Malley and Szekely's recommendation not to retain plaintiff at the Downers Grove office. (Def.'s Ex. M.) Reilly also stated that he and Taylor were prepared to offer plaintiff a full-time position at the O'Hare office, apparently believing the O'Hare office still needed clerical help. (Id.) However, Banerji, who had expressed interest in hiring plaintiff, was demoted and replaced as O'Hare branch manager on January 1, 1999 by Subhash Katial. (Def.'s App., Katial Dep., at 5-7, 45.) Katial decided against hiring any full-time QBC clerks at O'Hare until he had more time to assess the office's staffing needs. (Id. at 5-7, 45.)

When plaintiff's employment at Downers Grove officially terminated on February 12, 1999, Katial still had not decided to hire any full time clerks, and as a result plaintiff was not offered a position at O'Hare. (Def.'s LR 56.1(a)(3) ¶ 12.) On February 19, 1999, plaintiff received a letter from the defendant explaining her termination, citing changing business conditions. At this time Katial was unaware that plaintiff made the 1995 internal complaint or that she signed the affidavit in the Einspar case. (Id. ¶ 11.) Ultimately, Katial hired a part-time QBC clerk instead of a full-time clerk, and this clerk was from India. (Id. ¶ 13.) Between October 1998 and May 1999, neither the Downers Grove office nor the Hinsdale office hired any QBC clerks. (Id. ¶¶ 17, 18.)

During the last two weeks of her employment, plaintiff incurred $126.40 in traveling expenses. (Id. ¶ 24.) There was a two to three-month delay in paying plaintiff for these expenses due to an internal company dispute about whether the Downers Grove office or the O'Hare office should reimburse plaintiff. (Id.) Plaintiff was ultimately reimbursed in April 1999, despite a company policy not to reimburse clerks for travel expenses. (Id. ¶¶ 25, 26.) Plaintiff was the only clerk who was reimbursed for her travel expenses from October 1998 to February 1999, even though other clerks were required to travel to other offices. (Id. ¶ 25.)

Plaintiff filed her complaint on June 28, 2000 alleging violations of Title VII of the Civil Rights Act of 1964. Plaintiff alleged she suffered several adverse employment actions based on her national origin and in retaliation for her 1995 internal complaint, and for signing the affidavit in 1997. The alleged adverse actions include: (1) plaintiff's reassignment from the Elmhurst office to the O'Hare office after the merger; (2) plaintiff's reduced 1998 performance evaluation; (3) defendant's delay in paying plaintiff's travel expenses; (4) plaintiff's termination on February 12, 1999; and (5) defendant's failure to hire plaintiff full-time at the O'Hare office.*fn3


Summary judgment is appropriate when the moving party's evidence establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. Nat'l Human Resource Comm., Inc., 218 F.3d 719, 723 (7th Cir. 2000). A court considering a motion for summary judgment must draw all inferences from the record in the light most favorable to the non-moving party. Bay v. Cassens Transp. Co., 212 F.3d 969, 972 (7th Cir. 2000). The moving party is not entitled to summary judgment when a reasonable jury could return a verdict in favor of the non-moving party based on the evidence in the record. Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000).

I. Adverse Employment Actions

Title VII prohibits, among other things, an employer from discriminating against its employees on the basis of national origin or retaliating against its employees for opposing unlawful employer practices. See 42 U.S.C. § 2000e-2(a); id. § 2000e-3(a)(1994). It has long been established that in order to make out a prima facie case of national origin discrimination or retaliation under Title VII, the plaintiff must allege that she suffered an adverse employment action at the hands of her employer because of her national origin or because she opposed an unlawful employer practice. See Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002) (stating plaintiff in a retaliation claim under Title VII must allege adverse employment action); Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891-92 (7th Cir. 1996) (stating plaintiff in national origin discrimination case must allege he suffered an adverse employment action).

While Title VII does not specifically define "adverse employment action," the statute lists as examples failure or refusal to hire, discharge, and limitation, segregation or classification of an employee in a way that deprives the employee of employment opportunities or "otherwise adversely affect[s] his status as an employee." 42 U.S.C. § 2000e-2(a)(1)-(2). This list is not exhaustive as the Seventh Circuit has interpreted the term "adverse employment action" quite broadly. Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). An employee that has been fixed, demoted or received a reduction in pay or benefits has without question suffered an adverse employment action. Id. Adverse employment actions are not limited to monetary losses and include loss of job prestige as well as a "dramatic downward shift in skill level required to perform job responsibilities." See Dahm v. Flynn, 60 F.3d 253 (7th Cir. 1994) (holding a significant reduction in job responsibilities can serve as an adverse employment action); Collins v. State of Ill., 830 F.2d 692, 703 (7th Cir. 1987) (holding an employee who lost job title, office, telephone, business cards and listing in professional directories suffered an adverse employment action).

In any case, however, "common sense and the examples used in the [statute] . . . exclude instances of different treatment that have little or no effect on an employee's job." Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998). Indeed, the plaintiff in a Title VII action must allege an employment action that negatively effected the plaintiff's employment "in a tangible way," with respect to the employee's "compensation, terms, conditions, or privileges of employment." See id. at 554 (stating employer action without tangible adverse job consequences is not an adverse employment action); see also Fyfe v. City of Fort Wayne, 241 F.3d 597, 602 (2001) (holding that "not every unwelcome employment action qualifies as an adverse action."); Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (holding that an adverse employment action "must be more disruptive than a mere inconvenience or an alteration of job responsibilities.").

Plaintiff in this case has alleged defendant subjected her to several adverse employment actions because of either her national origin or protected activity. However, most of these allegations fail to qualify as adverse employment actions and ...

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