United States District Court, N.D. Iliinois
January 30, 2004.
MICHELLE M. MAITER, Plaintiff,
HARRIS BANKCORP, INC., a Delaware corporation, Defendant
The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Michelle Matter ("Waiter") filed suit against her former
employer, Defendant Harris Bankcorp, Inc. ("Harris Bank"). In her
complaint, Maiter alleges that Harris Bank terminated her employment on
the basis of her gender in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Harris
Bank moves for summary judgment, arguing that Maiter cannot establish
that (1) similarly situated male employees were treated more favorably,
or (2) the proffered reason for Maiter's termination was pretextual. For
the reasons set forth below, the court grants Harris Bank's motion.
Harris Bank has submitted a Local Rule 56.1 Statement setting forth the
material facts as to which it contends there is no genuine dispute.
(Defendant's Statement of Undisputed Material Facts, hereinafter "Def.
Facts.") Maiter has failed to respond to the Bank's statement of facts or
to submit her own statement of facts as required by the local rules.
Thus, the facts set forth by Harris Bank are deemed admitted.
Maiter is a high school graduate and has some college and professional
education. (Def. Facts ¶ 2; Def. Ex. 1 to Defendant's Motion for
Summary Judgment (hereinafter "Def. Motion"). Prior to working for Harris
Bank, Maiter held a number of banking positions with other financial
institutions, including working as an officer and customer service
representative for Citibank, as a
bank teller and senior personal banker for NBD/First Chicago Bank,
and as a bank teller and customer service representative for Presidential
Mortgage Company. (Id. ¶ 3; Employment Application, Def. Ex.
1 to Def. Motion.)
Following interviews with Dianne Gardiner, West Regional Operations
Manager for Harris Bank at that time, and West Regional President Maureen
Bell, Maiter was hired to work as Branch Manager of Harris's Roselle
Branch in May 1998. (Id. ¶¶ 4, 5; Maiter Dep., at 33-34.)
Gardiner hired Maiter and was her direct supervisor throughout Maiter's
employment. (Id. ¶ 6; Maiter Dep., at 34-35; Gardiner Dep.,
In her capacity as Branch Manager, Maiter was an officer of
the Bank. (Id. ¶ 4; Maiter Dep., at 42-43.) She was
responsible for the Roselle Branch's profitability, supervision of the
employees at the Branch, and achievement of customer service objectives.
(Id. ¶ 8; Maiter Dep. 39-42; Job Description, Def. Ex. 14 to
Def. Motion.) She was also expected to ensure that all branch employees,
herself included, adhered to the ethical and regulatory standards of the
banking industry, and to Harris Bank's policy regarding conflicts of
interest. (Id. 9; Maiter Dep. 43-47; Def. Ex. 14 to Def.
Motion.) Maiter understood that under the Bank's conflicts of interest
policy, an employee was not to perform transactions on his or her own
behalf or on behalf of immediate family members. (Maiter Dep., at 46-47.)
Maiter notes that this policy was not in writing and that employees were
not formally trained on it. (Id.)
One issue related to Maiter's job responsibilities that implicated
adherence to ethical standards was Ham's Bank's teller guidelines
regarding "forced balancing." (Def. Facts ¶ 10; Gardiner Dep., at
48.) Forced balancing is Harris Bank's term for misstatement by a teller
of the amount of money in the teller's cash drawer. (Id.;
Gardiner Dep., at 48-49.) Harris Bank's tellers were terminated for
forced balancing for amounts of even less than a dollar. (Id.;
Gardiner Dep., at 48.) Maiter was responsible for holding the tellers at
her branch to this high level of ethical behavior, and Gardiner admits
that Maiter did so quite well. (Id.; Gardiner Dep., at 49.)
Another issue related to Maiter's job responsibilities that implicated
both profitability and conflicts of interest was the reversal of service
charges and fees charged to customers for overdrafts, wire transfers,
check printing, falling below minimum balances, and other services.
(Id. ¶ 11; Matter Dep., at 41, 53.) Harris Bank policy
required service charge reversals to be approved by two employees
(Id. ¶ 13; Maiter Dep., at 50), one of whom had to be either
Maiter herself, Teller Supervisor Therese Cygan ("Cygan"), or Senior
Personal Banker Elizabeth Henderson ("Henderson"). (Id. ¶¶
12, 13; Maiter Dep., at 49-52.) Maiter and the other employees at her
branch received training concerning service charge reversals, but that
training did not include any specific direction concerning authorization
of service charge reversals on an employee's own account, nor
was there any written policy regarding such reversals. (Id.
¶ 15; Gardiner Dep., at 31-36; Certificate of Completion, Def. Ex. 6
to Def. Motion; Def. Ex. 7 to Def. Motion; Maiter Dep., at 73, 75.)
Gardiner explained, however, that in her view an employee who wanted to
reverse a service charge to his or her own account needed the approval of
a manager at the same or higher level of authority as the employee.
(Id. ¶ 14; Gardiner Dep., at 39-40.) In June 2001, at a
regular monthly meeting, Gardiner instructed all West Region managers who
reported to her, including Maiter, that the region's service charge
reversals were excessive and that branch managers should work to reduce
them. (Id. ¶ 16; Maiter Dep., at 56-57; West Region
Manager's Meeting Agenda, Def. Ex. 2 to Def. Motion,)*fn1
In September 2001, while Gardiner was vacationing in South Carolina,
she received a phone call from Dave Franzen, who was Regional Finance
Manager at the time. (Gardiner Dep., at 22, 28). Gardiner recalls that
Franzen told her he had received a phone call from an ex-customer of the
Bank, Franca Medigovich ("Medigovich"), who had made certain allegations
about Matter relating to service charge reversals. (Id. at 28.)
Gardiner instructed Franzen to ask Medigovich to provide the information
in writing. (Id.) Later, Gardiner called Waiter and asked her
whether she knew what Medigovich had been talking about. (Id. at
29; Matter Dep., at 114.) In this conversation, Waiter described the
circumstances in which Medigovich's account was closed. Gardiner was
satisfied with Maiter's explanation, concluded that Matter had handled
the matter appropriately, and undertook no further investigation of
Medigovich's allegations. (Id. at 28-29.)
On November 14, 2001, Harris Bank again heard from Ms. Medigovich, by
way of an e-mail message in which Medigovich asserted that Maiter had
disclosed confidential customer information, reversed service charges,
and performed other inappropriate favors for her friends, including her
boyfriend, Timothy Kidd. (Def. Facts ¶ 18; Gardiner Dep., at 27, 30;
PI. Ex. 5 to Def. Motion.) Gardiner testified that West Region President
Bell gave her a copy of this e-mail message. (Gardiner Dep., at 27.) In
response, Gardiner initiated an investigation of some of the accounts
identified in Medigovich's message. (Def. Facts ¶ 17; Gardiner Dep.,
at 27; PI. Ex. 5 to Def. Motion.) In reviewing records of Kidd's account,
Gardiner found four service charge reversals on his checking account
between February and May 2001. (Id. ¶ 19; Gardiner Dep., at
Ex. 8, 9 to Def. Motion.) Gardiner also investigated Maiter's own
Harris Bank accounts and discovered service charge reversals, noted as
"courtesy reversals," on October 15, October 19, and November 8, 2001 in
an account held jointly by Maiter and her mother. (Id. ¶¶
20-22; Maiter Dep., at 90-94; Gardiner Dep., at 31, 38; Def. Ex. 10, 11
to Def. Motion.) Maiter acknowledged that she benefited financially from
these charge reversals. (Id. ¶ 24; Maiter Dep., at 154-55.)
Henderson, who was Maiter's subordinate, had processed the October 19 and
November 8 reversals at Maiter's request.*fn2 (Id. ¶ 23;
Maiter Dep., at 90-94; Def. Ex. 11 to Def. Motion.)
As Henderson's supervisor, Maiter evaluated Henderson's performance,
had input into her compensation, determined her schedule, and could
approve or deny her requested days off. (Id. ¶ 25; Maiter
Dep., at 85-86.) Although Maiter says she typically phrased her
instructions to subordinates as polite requests, she acknowledged that a
subordinate's refusal to comply would constitute insubordination and
would subject the subordinate to possible discipline or termination.
(Id. ¶¶ 26, 27; Maiter Dep., at 169-70.) Nevertheless, Maiter
believes that Henderson would have refused to process the service charge
reversals on Maiter's joint account with her mother if Henderson had felt
uncomfortable or thought Maiter's request was inappropriate.
(Id. ¶ 28; Maiter Dep., at 103-06, 168-69.) Gardiner pointed
out that Maiter could have asked Assistant Regional Operations Manager
Carrie Rhodes, Regional Sales Manager Greg Walsh, Regional Finance
Manager Franzen, or Gardiner herself (her office was located at the
Roselle Branch) to approve the service charge reversals on Maiter's joint
account with her mother. (Id. ¶ 29; Gardiner Dep., at 9, 17,
22, 39-40) Maiter did not in fact ask Gardiner or any peer or supervisor
to approve the
service charge reversals that Henderson processed. (Id.
¶ 30; Gardiner Dep., at 36, 44; Maiter Dep., at 101.) Gardiner
testified that, had Maiter asked her, Gardiner would not have approved
all of the service charge reversals because she believed that Maiter, as
a Bank Officer, should have managed her personal accounts responsibly.
(Id. ¶ 31; Gardiner Dep., at 38-39.)
Upon discovering the service charge reversals on Maiter's joint account
with her mother, Gardiner considered Maiter's conduct to constitute
potential misappropriation of bank funds for personal gain. (Id.
¶ 32; Gardiner Dep., at 44-45.) For this reason Gardiner asked John
("Jack") Laurie from the Bank's Corporate Security department to conduct
a further investigation. (Id.; Gardiner Dep., at 20, 43, 45.) On
November 19, 2001, Laurie interviewed Maiter at the bank office in
downtown Chicago about the service charge reversals on the joint account.
(Id. ¶ 33; Gardiner Dep., at 49-50; Maiter Dep., at 94-95.)
At the conclusion of the interview, Maiter signed a written statement in
which she asserted that her mother, who had been battling cancer,
"contacted Henderson to have these fees reversed." (Id. ¶¶
34-35; Maiter Dep., 97-98; Def. Ex. 12 to Def. Motion.) Also on November
19, 2001, Henderson reported to Gardiner that Maiter had called her right
after the interview and asked Henderson to lie by telling Laurie that it
was Maiter's mother, not Maiter, who had requested the service charge
reversals. (Id. ¶ 37; Gardiner Dep., at 50-51,)*fn3
Maiter does not admit that she asked Henderson to reverse the service
charge fees on Maiter's joint account with her mother. (Id.
¶ 35; Maiter Dep., at 98; Def. Ex. 12 to Def. Motion.) Harris Bank,
however, has submitted as an exhibit in support of its motion for summary
a print-out of an e-mail message that Matter admits she sent to
Henderson on November 7, 2001. (Id. ¶ 36; Gardiner Dep., at
47-48; Maiter Dep., at 98-99; Def. Ex. 13 to Def. Motion.)*fn4 In that
e-mail, Matter asked Henderson to "credit [her] mom's account $12.00 for
the maintenance charge" (the November 8, 2001 fee reversal), and promised
to "take [Henderson] out to lunch for doing all of this for [her]."
(Id.; Maiter Dep., at 98-99; Def. Ex. 13 to Def. Motion.)
On November 19, 2001, after his interview with Waiter, Jack Laurie
confirmed to Gardiner that Maiter had been "reversing service charges on
her own account." (Id. ¶ 38; Gardiner Dep., at 50-51.)
Gardiner determined that Maiter had not sought or received proper
authorization for the service charge reversals on her joint account with
her mother. (Id. ¶ 39; Gardiner Dep., at 36, 44; Maiter
Dep., at 116-17.) Gardiner considered Maiter's conduct to constitute
misappropriation of funds for personal gain and decided to terminate
Maiter's employment for this reason. (Id. ¶¶ 39-40; Gardiner
Dep., at 36-37, 44, 62, 66.) Gardiner consulted her supervisor, West
Regional President Bell, and Hope Ferguson from Human Resources, both of
whom concurred with her decision. (Id. ¶ 40; Gardiner Dep.,
at 36-37, 44-45, 67-68; Maiter Dep., at 116-17.) Late on November 19,
2001, Ferguson telephoned Maiter and informed her that her employment
with Harris Bank was terminated because she had directed Henderson to
credit her joint account with her mother without proper authorization.
(Id. ¶ 41; Maiter Dep., at 115-17.)
In November 2001, before Maiter was terminated, Gardiner supervised
nine Branch Managers including Maiter: three men and six women.
(Id. ¶ 7; Maiter Dep., at 35-38.)*fn5 Gardiner
was assisted in her duties by Rhodes (female). (Id.;
Gardiner Dep., at 22; Matter Dep., at 39.) After her termination on
November 19, 2001, Maiter's duties were assumed by Rebecca Keeter
(female), who was an incumbent Branch Manager at a nearby location.
(Id. ¶ 42; Gardiner Dep., at 52.) Gardiner explained that
after Maiter's termination, the Roselle Branch was merged with the branch
that Keeter had been managing; Gardiner believed that Keeter was capable
of managing both branches. (Gardiner Dep., at 52-53.)
Maiter knows of no employee who engaged in the same conduct for which
she was discharged, that is, instructing a subordinate to credit the
superior employee's own account. (Def. Facts ¶ 43; Maiter Dep., at
118.) One month after Maiter's termination, Gardiner fired Diane
Battista, another Branch Manager in the West Region reporting to
Gardiner, for misappropriating funds by using money found on the floor on
the customer's side of the bank counter to buy pizza and office
decorations. (Id. ¶ 44; Maiter Dep., at 35-36, 174;
Gardiner Dep., at 66-67.) Battista was replaced by Ben Kerchov. (Gardiner
Dep., at 67-68.) Gardiner knows of no employees in the West Region who
misappropriated funds and were not discharged. (Def. Facts ¶ 45;
Gardiner Dep., at 37.)
Maiter's claim of gender discrimination is based on her belief that two
male employees, Sam Vardalos and Vince Demarco, engaged in similar
conduct as her but were not discharged. (Id. ¶ 46; Maiter
Dep., at 132-33.) Maiter asserts that Vardalos, a former Branch Manager,
`changed loan documents" but was not terminated; Maiter believes he was
"just put on corrective action or I think corrective action or immediate
probation." (Id. ¶ 47; Matter Dep., at 118-19.) Vardalos
did not work in the West Region and was not supervised by Gardiner.
(Id. ¶ 48; Maiter Dep., at 120; Gardiner Dep., at 57-59.)
Gardiner has no knowledge about this incident involving Vardalos or
anything else about his performance. (Id. ¶ 48; Gardiner
Dep., at 57-59.) Maiter's own information
concerning the incident is limited to what Vardalos himself told
her in a telephone conversation just after Maiter's termination; she does
not know whether any of Vardalos's supervisors knew about the alleged
behavior, nor does she know what action, if any, Harris Bank took in
response. (Id. ¶ 49; Maiter Dep., at 119-122.)*fn6" Maiter
does not believe the loan for which Vardalos allegedly changed
documents was for himself, nor does she know specifically whether or
how Vardalos may have benefited personally from his misconduct.
(Id. ¶ 50; Maiter Dep., at 120-21.) Maiter claims, however,
that if a manager changed loan documents to increase the loan totals for
the quarter, the manager would get a large quarterly manager's incentive.
(Maiter Dep., at 121.)
Maiter claims she heard from Rebecca Keeter that at some time between
1998 and November 2001, Vince Demarco violated Harris Bank policy by not
requiring proper customer identification when opening a bank account,
causing a $10,000 loss to the Bank. (Def. Facts ¶ 51; Maiter Dep., at
123, 125.) Maiter does not know whether Demarco benefited personally from
the alleged behavior and does not know what action, if any, Harris Bank
took in response. (Id. ¶ 52; Maiter Dep., at 125.) At the
time of the alleged incident, Demarco was an Assistant Manager and/or
Personal Banker and was supervised by Keeter who, in turn, was supervised
by Gardiner. (Id. ¶ 53; Maiter Dep., at 123-24; Gardiner
Dep., at 59-60.) Gardiner testified that she was not "familiar with
anything in particular" about the incident, does not know if the incident
occurred, and "cannot speak with any level of competence" about it. She
also notes that Keeter would have been responsible for dealing with the
incident herself. (Id.; Maiter Dep., at 125; Gardiner Dep., at
A. Standard of Review
The standards for evaluating a motion for summary judgment are
familiar. Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R, Civ. P. 56(c); Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 462 (7th Cir. 2002). The court's function is
not to weigh the evidence but merely to determine if "there is a genuine
issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). In making this determination, the court will construe facts
and draw inferences in the light most favorable to the nonmoving party.
Id. at 255. The nonmoving party, however, may not "merely allege
the existence of a factual dispute to defeat summary judgment," but must
instead offer evidence sufficient to support a verdict in his favor.
Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001)
(quoting McPhaul v. Board of Comm'rs of Madison County,
226 F.3d 558, 563 (7th Cir. 2000)).
B. Failure to Comply with Local Rule 56.1
Local Rule 56.1 (LR. 56.1") details this court's requirements for
filing and responding to a summary judgment motion. As noted, Maiter
failed to abide by the requirements set forth in L.R. 56.1(b)(3), and
submitted no response to Harris Bank's 56.1 Statement. She failed to
specifically respond to each of Harris Bank's undisputed facts and did
not offer evidence to corroborate her position on those facts that she
contradicted in her Response to Motion For Summary Judgment. Because
Maiter failed to comply with L.R. 56.1, the material facts set forth in
Harris Bank's statement of facts are deemed admitted. Adams v.
Wal-Mart Stores, Inc., 324 F.3d 935, 937 (7th Cir. 2003).
Nevertheless, to the extent that Maiter has challenged the Bank's version
of events in
her brief in opposition to summary judgment, the court has
construed materials in the record in the light most favorable to her.
C. Gender Discrimination In Violation of Title VII
Matter claims that Harris Bank discharged her because of her gender in
violation of Title VII. Title VII makes it unlawful for an employer "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. § 2000e2(a)(1). A plaintiff can prove Title VII discrimination by
producing direct evidence of discrimination or by proceeding under the
McDonnell Douglas burden-shifting method. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See also Contreras v.
Suncast Corp., 237 F.3d 756, 761 (7th Cir. 2001). The parties agree
that since Matter has no direct evidence of discrimination, she must
establish her case under the burden-shifting method.
Under that framework, Waiter must establish a prima facie case of
discrimination by demonstrating that (1) she belongs to a protected
class, (2) she performed her job satisfactorily and satisfied her
employer's legitimate expectations, (3) she suffered an adverse
employment action, and (4) her employer treated similarly situated
employees outside of her protected class more favorably. McDonnell
Douglas, 411 U.S. at 802; Contreras, 237 F.3d at 759. If
Maiter satisfies each of these elements, Harris Bank has the opportunity
to present a legitimate, non-discriminatory explanation for her
discharge. See Contreras, 237 F.3d at 802-03. The Bank "need
only produce admissible evidence which would allow the trier of fact to
rationally conclude that the employment decision has not been motivated
by discriminatory animus." Id. at 760 (quoting Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981)). If
Harris Bank successfully satisfies this requirement, Maiter has the
burden of proving that the Bank's proffered reason is a pretext for
The parties agree that Maiter can establish the first three prongs of
the McDonnell Douglas framework: She belongs to a protected
class (female), she satisfied Harris Bank's legitimate job expectations
in the sense that she has the experience and qualifications for the
position, and she was discharged. Harris Bank argues, however, that
Maiter cannot establish the fourth prong of her prima facie case because
she cannot show that Harris Bank treated similarly situated employees
outside of her protected class more favorably. Even if she could do so,
Harris Bank argues, it nevertheless is entitled to summary judgment
because on this record, no jury could reasonably conclude that the Bank's
stated reason for her discharge was a pretext for gender discrimination.
Maiter argues that two similarly situated males, Sam Vardalos and Vince
Demarco, were treated more favorably than she was treated. She urges,
further, that the Bank's stated reason for discharging her
misappropriation of funds for personal gain was pretextual
because she did not violate any Bank policy regarding the reversing of
fees and charges to her own account.
1. Similarly Situated Employees
A plaintiff may demonstrate that another employee is similarly situated
to her by "showing that there is someone who is directly comparable to
her in all material respects." Peele v. Country Mutual Insurance
Co., 288 F.3d 319, 330 (7th Cir. 2002). See also Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). In
determining whether employees are similarly situated, "a court must look
at all relevant factors, the number of which depends on the context of
the case.' Radue, 219 F.3d at 617. Furthermore, "in disciplinary
cases in which a plaintiff claims that [she] was disciplined by
[her] employer more harshly than a similarly situated employee based on
some prohibited reason a plaintiff must show that [she] is
similarly situated with respect to performance, qualifications, and
conduct." Id. Ordinarily, the Radue court explained,
this requires the plaintiff to demonstrate that she and the employees to
which she compares herself "dealt with the same supervisor, were subject
to the same standards, and had engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish
their conduct or the employer's treatment of them." Id. at
617-618 (emphasis added).
In this court's view, Matter has not met this test. First, it is
undisputed that Maiter reported to Gardiner throughout her employment
with Harris Bank, and that Gardiner made the decision to discharge her.
There is no evidence to suggest that Gardiner was also involved as a
decision-maker for Vardalos or Demarco. Vardalos did not work as a
Branch Manager in the West Region and was not supervised by Gardiner.
Gardiner has no knowledge about Vardalos's alleged changing of loan
documents and does not know anything else about his performance.*fn7 See
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.
2002) (employees with different supervisors not similarly situated).
Demarco, an Assistant Branch Manager and Personal Banker, was supervised
by Keeter. Gardiner did supervise Keeter, but Gardiner does not know
whether Demarco actually failed to obtain proper customer identification
when opening a bank account, and is not familiar with that particular
incident. Moreover, Gardiner's uncontroverted deposition testimony is
that if the Demarco incident had indeed occurred, Keeter, and not
Gardiner, would have been the supervisor deciding whether to discharge
him. Id. See also Plair v. E.J. Brach & Sons, Inc.,
105 F.3d 343, 349 n.3 (7th Cir. 1997) (where different decision-makers are
involved, employees are rarely similarly situated).
Maiter argues that, viewing the facts in the light most favorable to
her, the court should conclude that Gardiner's role as Keeter's
supervisor renders her responsible for the decision concerning Demarco.
Such a conclusion would not preclude summary judgment here, however,
because Maiter has not shown that Demarco's alleged misconduct was
similar to her own. Gardiner discharged Maiter for `misappropriation of
bank funds for personal gain." Harris Bank understands such an offense to
be an extremely serious violation of Bank policy; Gardiner testified that
Harris Bank tellers are discharged for "forced balancing" for an amount
of even less than one dollar. Although Maiter believes that Demarco
violated Bank policy at some point between 1998 and November 2001 by
failing to require proper identification for a new account, she concedes
that she does not know whether Demarco benefitted personally from his
alleged behavior and does not even know what action Harris Bank took in
response. In fact, there is no evidence that anyone at Harris Bank
considered either Demarco's or Vardalos's conduct to constitute
misappropriation of funds, nor is there any evidence that either man
benefitted personally from his alleged misconduct. See Johnson v.
National R.R Passenger Corp., 23 F. Supp.2d 909, 913 (N.D. III.
1998) (plaintiff not similarly situated to employees who had engaged in
different conduct). In contrast, approximately one month after Maiter's
termination, Gardiner learned that Branch Manager Diane Battista had
misappropriated funds by using cash found on the floor on the customer's
side of the bank counter to purchase pizza and office decorations.
Gardiner, who supervised Battista, discharged her for this misconduct.
Notably, even if Maiter were correct that Vardalos or Demarco had
engaged in similar misconduct, she has presented no admissible evidence
concerning how Harris Bank addressed the alleged incidents and in effect
asks the court to assume they were treated more favorably than she was
treated. The court is not willing to do so. As explained earlier,
Vardalos was not under Gardiner's supervision and she has no knowledge
regarding his alleged misconduct or any resulting disciplinary action. In
addition, though Maiter claims that Keeter told Gardiner about
Demarco's misconduct, Maiter has no personal knowledge of that
fact. Nor is she aware of how Harris Bank responded to Demarco's
infraction. Summary judgment is proper where, as here, a plaintiff "has
presented only her own uncorroborated, conclusory statements that
similarly situated co-workers were treated differently." Oest v.
Illinois Dept. Of Corrections, 240 F.3d 605, 614 (7th Cir. 2001).
See also Adams, 324 F.3d at 940. As Harris Bank points out, if
investigatory or disciplinary records about the Vardalos and Demarco
incidents existed, Maiter was entitled to obtain them through discovery.
Her failure to offer such material, on an issue as to which she bears the
burden of proof, means that she has not raised a genuine issue of fact as
to whether similarly situated male employees were treated more favorably.
Having determined that no reasonable trier of fact could find that
Harris Bank treated similarly situated male employees more favorably than
Maiter, the court need not address whether the Bank's asserted reason for
her discharge was a pretext for unlawful discrimination. See
Peele, 288 F.3d at 326 ("[a] plaintiff does not reach the pretext
stage . . . unless she first establishes a prima facie case
of discrimination"). The court notes, however, that summary judgment is
proper on this basis as well.
Maiter was discharged for violating Bank policy by directing Henderson,
a subordinate, to reverse service charges on her personal account.
Gardiner considered such conduct by a Bank officer to be misappropriation
of funds for personal gain. During an investigation into this misconduct,
Maiter told Jack Laurie from Corporate Security that her mother had asked
Henderson to reverse the service charges. The evidence shows, however,
that Maiter called Henderson after that meeting and asked Henderson to
lie for her. Maiter baldly denies that she did anything wrong, but that
is wholly insufficient to demonstrate that Harris Bank's explanation for
her discharge is a pretext for unlawful discrimination. See Albiero
v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001) (conclusory,
unsupported denials are not sufficient to raise genuine issues of fact
Moreover, there is nothing in the record to suggest that Gardiner's
decision to discharge Maiter was based on gender animus. Gardiner and
Bell, both women, hired Maiter in 1998. See Johnson v. Zema Sys.
Corp., 170 F.3d 734, 744-45 (7th Cir. 1999) ("where the same person
does the hiring and firing of an individual, an inference arises that the
firing did not result from an improper discriminatory motive"). In
addition, Gardiner arranged for Rebecca Keeter, a female Branch Manager
at another location, to assume Mailer's duties. See Rooks v. Girl
Scouts of Chicago, No, 95 C 206, 1995 WL 562126, at *7 (N.D. III.
Sept. 21, 1995) (there can be no compelling inference of discrimination
when the decision-maker is in the same protected category as the
Maiter has not presented any evidence that Harris Bank did not honestly
believe the reasons it gave for her discharge, much less that the real
reason was gender discrimination. Absent such evidence, Harris Bank is
entitled to summary judgment.
The court finds no dispute of material fact on Maiter's claim of Title
VII gender discrimination. For the reasons stated above, the court grants
Harris Bank's motion for summary judgment (Doc. No. 10-1), and enters
judgment in favor of Defendant.