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STALLINGS-DANIAL v. NORTHERN TRUST COMPANY

July 29, 2003

SHIRLEY STALLINGS-DANIEL, PLAINTIFF,
v.
THE NORTHERN TRUST COMPANY, DEFENDANT.



The opinion of the court was delivered by: Michael Mason, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Shirley Stallings-Daniel, has sued her employer, The Northern Trust Company ("TNT") for violations of Title VII of the 1964 Civil Rights Act as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2 et. seq. ("Title VII") and 42 U.S.C. § 1981, alleging that her employer discriminated against her on the basis of her race by not promoting her as quickly as similarly situated Caucasian employees, and that she was unfairly removed from a management position and otherwise retaliated against because she complained of discrimination. Defendant has moved for summary judgment. For the following reasons, we grant in part and deny in part defendant's motion.

FACTS

Each party submitted a statement of undisputed material facts, and a response to the other party's facts, as required by Fed.R.Civ.P. 56.1. While both parties' statements and corresponding exhibits are well organized, they also suffer from certain flaws, and defendant has moved to strike both portions of plaintiff's response to defendant's [ Page 2]

statement as well as two affidavits she submitted in support of her statement of facts.*fn1 Before setting forth the facts that are not in dispute, we must address a few of these issues.

Defendant has filed three motions to strike. The first two ask that we strike portions of plaintiff's affidavit and the entire affidavit of her subordinate, Alex Razumovich, which she submitted in support of her opposition to the motion for summary judgment and her Rule 56.1 statements. Defendant argues that the affidavits are deficient because they, 1) contain hearsay statements for which there is no exception; 2) contain statements for which the affiant lacks personal knowledge or a proper factual foundation; and 3) contain statements which are argumentative or legal conclusions. District Courts have the discretion to enforce their local rules (or excuse transgressions), such as those governing the filing of summary judgment motions. See, e.g., Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995).

In response to the hearsay argument, the plaintiff admits that a few paragraphs of her affidavit should correctly be stricken,*fn2 and contends that others are admissible either because they consist of party admissions (paragraphs 3, 5, and 23 of plaintiff's affidavit), or are not offered for the truth of the matter asserted (paragraphs 61 and 62). As to paragraphs 3, 5, and 23, plaintiff has been unable, even when directly asked, to identify any manager or agent of defendant who made these statements. Thus, they are not [ Page 3]

proper admissions of a party opponent and will be stricken. Fed.R.Ev. 801(d)(2) Paragraphs 61 and 62 relate that plaintiff learned from an unnamed individual that another co-worker allegedly made certain statements about her. This "hearsay inside of hearsay" is offered for the truth of the matter asserted, and thus is stricken. However, to the extent that plaintiff can prove the event through other means, such as an e-mail from the speaker, she is still allowed to do so.

In response to defendant's other arguments, plaintiff argues generally that the Court can easily glean from the statements made and other evidence adduced that plaintiff and her subordinate Razumovich have personal knowledge about the matters to which they aver. Plaintiff also contends that with regard to defendant's "no foundation" argument, defendant's own e-mails and business documents properly substantiate the statements. In support of this contention, plaintiff cross references some of her affidavit statements with evidence provided by defendant.

Defendant's third motion asks that we strike portions of plaintiff's Rule 56.1 response to defendant's Rule 56.1 statement of undisputed facts based on similar alleged deficiencies. Specifically, defendant contends that many of plaintiff's numbered paragraphs contain argument or speculation, fail to identify evidence that provides an adequate basis to deny defendant's statement, or consist of additional facts which properly belong in plaintiff's own 56.1 statement.

We have reviewed all of the parties' 56.1 statements and responses, along with the evidence cited. We agree with the defendant that the affidavit of plaintiff's subordinate should be stricken because it does not contain first-hand knowledge about material facts, and thus is ineffective as proof. Additionally, some parts of plaintiff's own affidavit, as well [ Page 4]

as portions of her Rule 56.1 response contain material that should not be considered when we determine whether there is a dispute of material fact, primarily because they contain statements that demonstrate either a lack of personal knowledge or unsubstantiated speculation.*fn3 However, as plaintiff points out, some of defendant's arguments in support of striking actually go to the weight we assign to a particular fact rather than its admissibility per se. Also, a large number of the statements propounded by both parties are not material to our analysis anyway, and thus, it is unnecessary to review each paragraph in defendant's motion individually. Instead, when our determination of a particular fact depends on discounting a statement or piece of evidence propounded by the plaintiff (or, for that matter, the defendant), we will say so explicitly. Therefore, defendant's motion to strike the affidavit of Alex Razumovich is granted and its motions to strike portions of the plaintiff's affidavit portions of plaintiff's Rule 56.1 response are granted in part and denied in part as stated further below.

Following is a statement of the undisputed material facts in this case, which we set forth subject to our holding above.*fn4 The events about which plaintiff complains occurred in 1998 and 1999. However, a little background of her employment with TNT and defendant's [ Page 5]

organizational structure*fn5 is necessary to understand the scope of her allegations. Shirley Stallings-Daniel began working for TNT in 1990 as an Associate Programmer. When she was hired, she participated in a programmer training class with other newly hired employees. At some point prior to 1993, Plaintiff began working in the Trust Systems Department ("TSD") of defendant's World-Wide Operations and Technology business unit ("WWOT"). The WWOT had two Units, Operations and Technology; TSD was part of the Technology Unit, which was responsible for building and maintaining the computer systems for TNT. From at least April, 1995 to June, 1999, plaintiff was employed in a division of TSD known as Trust Accounting.

Plaintiff alleges that as early as 1992, her promotions began to trail those of her non-African-American peers.*fn6 However, she never adequately identifies who these peers are. At one point, she indicates that her peers are those individuals with whom she participated in her original programmer training class. However, of the individuals who were still employed by defendant at the time of their promotions, some were not working in the TSD, and all had different supervisors than the plaintiff. Further, there is absolutely no evidence to support plaintiff's "understanding" that, absent performance problems, all members of a training class were promoted together.*fn7 Thus, to the extent that it is relevant to her claims [ Page 6]

of later discrimination, we make no finding regarding plaintiff's allegation that her early promotions were delayed because of her race.

By January, 1995, plaintiff was working on the Valuations Team in the Trust Accounting Division.*fn8 Sharon Alexander became plaintiff's supervisor in mid-1995; Brian Palmer was her second-level supervisor. In June, 1996, plaintiff was promoted to the official title of "Officer". She continued to hold functional titles that described her position as well. Plaintiff contends that in early 1996 (presumably, prior to plaintiff's promotion in June), TNT had promoted all of plaintiff's "Caucasian class peers in the TSD" to the title of Officer. However, plaintiff again fails to identify who these individuals are or establish their promotion dates. At the time, only three individuals from plaintiff's training class were still employed at TNT, Rory Ross, Lisa Weller, and Wing Chark. Neither Weller nor Chark worked in the TSD.*fn9 It is unclear whether Ross worked in the TSD, but it is undisputed that he had different supervisors than the plaintiff. Defendant denies any implication that these three individuals were plaintiff's peers merely because they had trained together, and also denies any implication that there were not other individuals who might have been more properly considered plaintiff's peers. [ Page 7]

Defendant's Promotion Process

In the WWOT, the planning for promotions to occur in a particular year takes place in the fourth quarter of the previous year. From 1997 through at least 1999, Peter Magrini was the Department Head of the TSD. He, along with the TSD's Division Managers reviewed the planning lists for official promotions throughout the year; managers could add or delete employees from the list, or change their date of promotion.*fn10

With regard to official (as opposed to functional) promotions, the parties dispute whether the WWOT had a requirement that employees hold the title Officer for at least three years before becoming eligible to be promoted to Second Vice President ("2VP"). There are two documents which discuss the promotion process. Plaintiff relies on a general TNT document that states that an employee may be promoted to 2VP after two-to-four years as an Officer, assuming other conditions are met. Defendant admits the two-to-four year guideline, but relies as well on a second document specific to the WWOT, which states that there are two tracks for promotion, a management track and a technical track. Both tracks require at least three years as an Officer before promotion to 2VP. Plaintiff argues that this document refers only to the Operations Unit of the WWOT, as both tracks refer to operations and client contact, which are not present in the Technical Unit, and thus denies that the three year requirement is applicable to her. However, defendant explains, — without contradiction — that the promotion requirements for the Technology Unit, although not reduced to writing, are based off those of the Operations Unit, including the three-year [ Page 8]

guideline.*fn11 The parties agree that outstanding performance and/or a proven track record as a manager are relevant to promotion; since we find no question of fact that the TSD, as part of the WWOT Technology Unit, had a general three-year wait between promotion to Office and promotion to 2VP, we accept defendant's additional contention that outstanding performance and/or management experience could make someone eligible for promotion in a shorter amount of time, but an earlier promotion was not required.

Plaintiff Becomes a Team Leader

In January, 1998, Kay Vicino became the Division Manager for the Accounting Division, taking over the position from Palmer. In this role, Vicino directly supervised Accounting Team Leader Sharon Alexander, who was plaintiff's direct supervisor. Alexander's duties subsequently increased, and she planned to create one or more team leader positions, who would report to her. Each team leader would be responsible for managing a particular computer application assigned to Alexander's overall Accounting Team. At some point in early 1998, Alexander decided to make an individual named Employee A the team leader over the Application 1 computer application. She also made plaintiff a team leader, over the Valuations application. Plaintiff took over this role in June, 1998.*fn12 [ Page 9]

September, 1998 Promotions

Planning for promotions scheduled to occur in 1998 began in November and December, 1997. At the time, plaintiff's second-level supervisor, who would have been responsible for recommending her for a 1998 promotion, was Brian Palmer. Palmer had consistently rated plaintiff's performance as having met the majority of her expectations and exceeding the rest, and considered her 1997 performance to be outstanding; Plaintiff highlights large portions of Palmer's deposition testimony about her work as evidence that any criticism of her performance by other managers was unjustified.*fn13 In February, 1997, plaintiff asked Palmer about her promotion future and specifically compared herself to Rory Ross, who had been in her training class. At that time, Palmer told plaintiff that if her work continued at the same level, she would be promoted at the same time as Ross. In December, 1997, Palmer did not recommend plaintiff for a promotion in 1998 because she had not been an Officer for three years and because she did not have any management experience.*fn14 Ross was promoted to 2VP in September, 1998, after two years, ten months [ Page 10]

as an Officer.*fn15 At the time, plaintiff had been an Officer for two ...


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