United States District Court, N.D. Illinois
March 3, 2004.
DENNIS DANIELS, et al., Plaintiff,
FEDERAL RESERVE BANK OF CHICAGO Defendant
The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
MEMORANDUM OPINION AND ORDER
I. Facts Common To All Plaintiffs
Defendant, Federal Reserve Bank of Chicago ("Bank"), seeks summary
judgment on Counts I and IV of the Amended Class Action Complaint
("Complaint") against certain plaintiffs, Dennis Daniels, Lorraine
Matthews, Gerard Brice, Alice Dixon, and Charles Carson (collectively,
"Plaintiffs"). Counts I and IV comprise Plaintiffs' only surviving claims
against the Bank. The Bank has also filed several motions to strike
certain exhibits and Rule 56.1 responses. Plaintiffs, together with seven
other former employees of the Bank, were certified as a class on March 28
and May 30, 2000, but the Court decertified the class on May 2, 2002, and
returned the case to the status of individual claims. Counts III and VI
of the Complaint are class action claims that are no longer viable since
the class was decertified. Counts II and V by their terms applied only to
Cedell Johnson, who is no longer a party to the case, In addition, Counts
VII and VIII by their terms only apply to plaintiff Eleanor Baylie, who
is not implicated in the Bank's current summary judgment motions.
Count I of the Complaint alleges that:
Federal Reserve intentionally subjected Plaintiffs
to unequal and discriminatory treatment because of
their race and color by: (a) Repeatedly denying
them promotions and instead selecting less
qualified white employees for those positions; (b)
Steering Plaintiffs to low-level, dead-end
positions while steering white employees to career
path positions with opportunities for advancement;
(c) Falsely representing that such low-level
positions have growth potential; (d) Excluding
Plaintiffs from officer, management, and
supervisory level positions; (e) Denying
Plaintiffs increases in Grade Level to reflect
their performance and responsibilities; (f)
Assigning higher grade levels to white employees
who have the same or similar or lower level
responsibilities as Plaintiffs; (g) Denying
Plaintiffs training and mentoring opportunities;
(h) Subjecting Plaintiffs to a higher level of
scrutiny and to stricter standards than white
employees; and (i) Paying Plaintiffs less than
similarly situated and less qualified white
Plaintiffs, who are each African-American, claim that these alleged
actions by the Bank constitute racial discrimination in employment in
violation of 42 U.S.C. § 1981. Count IV of the Complaint states that:
"Federal Reserve intentionally subjected Plaintiffs D. Daniels, Baylie,
Brice, Carson, Dixon, Johnson and Matthews to unequal and discriminatory
treatment because of their race and color. Federal Reserve's employment
practices have a disproportionate, adverse impact on plaintiffs and other
African-Americans." Plaintiffs claim that these actions constitute race
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq.
On February 17, 1998, Plaintiffs filed a charge of discrimination with
the Equal Employment Opportunity Commission ("EEOC"). On February 25,
1998, Plaintiffs filed a complaint alleging that the Bank had
discriminated against them on the basis of their race, African-American,
in violation of 42 U.S.C. § 1981. Plaintiffs filed an amended
complaint on June 18, 1998, adding additional plaintiffs and Count IV,
the Title VII race discrimination claim. The legal issues in this case
are substantially overlapping, so the Court will address each of the
pending summary judgment motions in the same opinion.
II. Facts Specific To Certain Plaintiffs
A. Dennis Daniels
Dennis Daniels was hired by the Bank on March 12, 1973, for the
position of Interview and Personnel Assistant, grade ten, in the Human
Resources Department. In March 1974, Daniels was promoted to
Professional College Recruiter, Junior, grade eleven, and a year later,
Daniels was promoted to Coordinator of Professional College Recruiting,
grade twelve. In October 1977, Daniels was transferred laterally to the
position of Internal Staff Coordinator, and in 1978, he was promoted to
Senior Job Analyst, grade thirteen. In May 1982, the Bank's numbered
grading system changed, and Daniels became an Administrator A, grade
sixty. Three years later, Daniels was promoted to Compensation &
Benefits Manager, grade sixty-one. In November 1986, Daniels was
laterally transferred to the Office of the Secretariat as a grade
sixty-one Manager. On January 20, 1995, the Bank's numbered grading
system changed again, and Daniels' job grade was converted to grade
fourteen. In October 1995, the Office of the Secretariat was reorganized
and broken up into two different units: Communications and Information
Services and Office of the Secretary. Daniels became Manager of
Communications and Information Services and retained his fourteen job
In July 1996, the Communications and Information Services unit was
dissolved, and Daniels' position was eliminated. Daniels was consequently
transferred to the newly created position of Electronic Communications
Team Leader. Daniels retained the same job grade, salary, and benefits
that he had before his transfer. In this position, Daniels was given
primary responsibility for the strategic marketing direction of the
Bank's new external Web site and internal Intranet (which involved
internal electronic communications to employees). Daniels remained in
this position for over fifteen months before resigning in September 1997.
B. Lorraine Matthews
Lorraine Matthews was hired by the Bank on June 9, 1969, as a
Difference Clerk, grade four, in the Check Adjustment Department. Six
months after joining the Bank, Matthews was promoted to Difference Clerk,
grade five, and in June 1970, she was promoted to Difference Clerk, grade
six. After the Bank's numbered grading system changed, Matthews became an
Inquiry Specialist B, grade thirty-nine. In October 1982, Matthews was
promoted to Inquiry Specialist A, grade forty-one, hi January 1995, after
the grade numbering system changed again, Matthews became a Researcher B,
grade seven. Matthews remained in this position until she was terminated
On February 20, 1997, Matthews was counseled by her supervisor, Lily
Chin, regarding unplanned absences, and she was issued a written
Unplanned Absence Disciplinary Action Notice, indicating that Matthews
was being placed on counseling status for ninety days. Chin rated
Matthews' monthly performance as "did not meet expectations" in February
1997. On March 18, 1997, Matthews was counseled by supervisor Cassandra
Ramsey regarding unplanned absences and was issued another written
Unplanned Absence Disciplinary Action Notice, this time indicating
Matthews was being placed on warning status for ninety days. Once again,
in March 1997, Chin rated Matthews as "did not meet expectations." On
April 3, 1997, Matthews received a formal notice that she was not meeting
her department's expectations on productivity, and she was placed on
warning status for three months. At the end of the three months, Matthews
was rated in her performance review by supervisor Sylvia Prickel as "did
not meet expectations." In June 1997, Matthews' performance efficiency
rating was 32%, while the expected performance of employees
in Matthews' department was 60%.*fn1 On November 17, 1997, Matthews was
called into a meeting with supervisors Kathy Williams, Kathy Balice, and
Cassandra Ramsey to discuss her performance. After a confrontation
between Matthews and her supervisors in the meeting, Matthews was fired.
C. Alice Dixon
Alice Dixon was hired by the Bank in 1969 as a unit inscriber trainee,
grade three, in the Check Department. Six months later, Dixon was
promoted to unit inscriber, grade four, and two years later, she was
promoted to block preparation clerk, grade five, In the 1980's, Dixon was
promoted to sorter reader operator, grade six, and after about five
years, she was promoted to reconciler and correspondent clerk, grade
seven. After the Bank changed its numerical job grading scheme, Dixon's
position was reclassified as grade thirty-nine, although her job title
and duties remained the same. In 1989, Dixon's position was retitled
reconcilement clerk A, grade thirty-nine, at which she remained until the
Bank switched grading systems again in 1995, and Dixon became a grade
five, In 1996, Dixon received a new title, processor B.
Dixon received her Bachelor of Science degree in Management from DePaul
University in June 1996. In October 1996, Dixon applied for a Customer
Service Consultant ("CSC") position, which ranges from grades nine to
eleven, but she was not selected for any of the open positions. In
November 1996, Dixon was promoted to processor A, grade six. On January
6, 1997; April 10, 1997; and January 9, 1998; Dixon applied for a CSC
position for a second, third, and fourth time, but she was not selected.
Dixon also applied for several other positions for which she was not
selected: (1) examiner trainee, October 1997; (2) assistant control
specialist, December 23, 1997;
(3) analyst in the Check Administration Department, January
26, 1999; and (4) Special Operations Consulting Team, May 14, 1999. Dixon
retired in July 2000, as a Processor A, grade six, in the Check
D. Gerard Brice
Gerard Brice was hired by the Bank in April of 1995 as a full-time
Processor, grade seven, in the Customer Inquiry Unit of the Accounting
Services Department. A year later, in April of 1996, Brice was promoted
to the position of Accountant C, grade nine in the Accounting
Documentation Unit. Between August and September 1997, Brice applied for,
and was interviewed for, one of four posted Auditor positions, grade ten,
available in the Audit Department. Brice was ultimately denied the
position. In October of 1997, Brice was promoted to the position of
Accountant B, grade nine in the General Ledger Unit of the Accounting
Services Department. After his second promotion, Brice received a salary
increase. Between August and September 1998, Brice applied for and
received a promotion to Senior Analyst C, grade eleven, in the
statistical and finance reporting area of the Bank's Research Department.
Brice received a salary increase of over $4,000.
At present, Brice works at the Bank as a Statistical Senior Analyst B,
grade twelve, a position to which he was promoted in approximately
February of 2003. His primary responsibilities include reviewing and
analyzing bank holding companies' regulatory financial statement reports,
identifying issues that arise in the reports, and then resolving such
issues by communicating with various management personnel at the relevant
E. Charles Carson
Charles Carson was hired by the Bank on February 12, 1990, as a Console
Operator. In 1994, Carson was working as a Technical Specialist C at
grade fifty-seven. In 1994 and 1995, Carson
twice asked to be promoted to grade fifty-eight, but the Bank did
not promote him. In December 1995, the Bank revised its grading system,
and Carson's title became Operations Technician A at grade level ten.
Carson did not experience a pay reduction concurrent with the change in
his title and grade. On August 25, 1997, Carson was promoted to grade
eleven, In 2000, Carson applied for a grade fourteen or fifteen Server
Group position. At the time, Carson was at a grade twelve position. The
Server Group position was filled by Debbie Deema, who prior to filling
the position was a grade thirteen supervisor.
On August 27, 2001, Carson requested a Bank cellular phone and agreed
(in writing) to use the phone for Bank business and to limit personal
calls to emergencies. In the months of March, April and May 2002, Carson
incurred phone bills for personal calls on the cellular phone of $3,174;
$1,830; and $2,115; respectively. The Bank suspended Carson for three
weeks in My 2002. On September 5, 2002, the Bank sent Carson a memorandum
requesting that Carson review his phone records and reimburse the Bank
for all non-emergency personal calls beyond $100. Carson was told to pay
for these calls or make other arrangements with the Bank for the payment
by October 15, 2002. On October 21, 2002, the Bank again sent Carson a
memorandum asking him to pay for the phone calls by October 28, 2002.
After Carson failed to respond to a third extension of the deadline to
November 15, 2002, the Bank informed Carson on November 19, 2002, that he
was being terminated for violation of Bank's Code of Conduct by failing
to respond to the requests for the phone bill repayment.
III. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that a
motion for summary judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the 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). A
genuine issue of material fact exists only if "the evidence is such that
a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
initial burden is on the moving party to demonstrate the absence of a
genuine issue of material fact and that judgment as a matter of law
should be granted in the moving party's favor. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986); Larimer v. Dayton Hudson
Corp., 137 F.3d 497 (7th Cir. 1998). A question of material fact is
a question which will be outcome determinative of an issue in the case.
Anderson, 477 U.S. at 248.
Once the moving party has met the initial burden, the opposing party
must "go beyond the pleadings" and "designate specific facts showing that
there is a genuine [material] issue for trial." Id. A party will
be successful in opposing summary judgment only if it presents "definite,
competent evidence to rebut the motion." E.E.O. C. v. Sears,
Roebuck& Co., 233 F.3d 432, 437 (7th Cir. 2000). The non-moving
party cannot create an issue of fact with speculation or conjecture.
Borcky v. Maytag, 248 F.3d 691, 695 (7th Cir. 2001). A court is
"not required to evaluate every conceivable inference which can be drawn
from evidentiary matter, but only reasonable ones." Little v. Cox's
Supermarkets, 71 F.3d 637, 643 (7th Cir. 1995). During its summary
judgment analysis, the court must construe the facts and draw all
reasonable inferences in the light most favorable to the nonmoving party.
Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir.
IV. Untimely Allegations Of Discrimination
Each Plaintiff, except Brice, alleges certain acts of discrimination
that occurred outside the time period of the relevant statutes of
limitations. Discrete discriminatory acts that occurred outside
the relevant time period, however, are time-barred. Nat'l R. R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). These alleged
untimely discriminatory acts may only be considered for background
A. Title VII
Title VII sets forth the relevant time for filing charges as follows:
. . . in a case of an unlawful employment
practice with respect to which the person
aggrieved has initially instituted proceedings
with a State or local agency with authority to
grant or seek relief from such practice or to
institute criminal proceedings with respect
thereto upon receiving notice thereof, such charge
shall be filed by or on behalf of the person
aggrieved within three hundred days after the
alleged unlawful employment practice
occurred. . . .
42 U.S.C.A. § 2000e-5(e)(1). A claim is time-barred if it is not
filed within these time limits. Morgan, 536 U.S. at 109.
"According to statute, a plaintiff in a deferral state such as Illinois
must file a charge of discrimination with the EEOC or equivalent state
agency within 300 days after the alleged unlawful employment practice.
The 300-day limit . . . begins to run when the defendant has taken the
action that injures the plaintiff and when the plaintiff knows she has
been injured, see, not when [the plaintiff] determines that the injury
was unlawful." Sharp v. United Airlines, Inc., 236 F.3d 368
(7th Cir. 2001) (internal citations omitted). Discrete acts that fall
within the statutory time period do not make timely acts that fall
outside the time period. Morgan, 536 U.S. at 112. The Supreme
Court held that:
First, discrete discriminatory acts are not
actionable if time-barred, even when they are
related to acts alleged in timely filed charges.
Each discrete discriminatory act starts a new clock
for filing charges alleging that act. The charge,
therefore, must be filed within the 180-or 300-day
time period after the discrete discriminatory act
occurred. The existence of past acts and the
employee's prior knowledge of their occurrence,
however, does not bar employees from filing charges
about related discrete acts so long as the acts are
independently discriminatory and charges addressing
those acts are themselves timely filed.
Id. at 113. Discrete discriminatory acts include acts such as
termination, failure to promote, denial of transfer, or refusal to hire.
Id. at 114. Title VII does not "bar an employee from using the
prior acts as background evidence in support of a timely claim."
In this case, Plaintiffs filed their EEOC charges on February 17, 1998.
Therefore, discrete discriminatory acts that allegedly occurred before
April 24, 1997, 300 days before the charges were filed, are not
actionable under Title VII. Plaintiffs may, however, use alleged prior
acts as background evidence in support of their timely claims,
B. Section 1981
Likewise, any alleged adverse action that occurred more than two years
before Plaintiffs' complaint was filed is time-barred under § 1981.
The Seventh Circuit has held that to bring a claim under § 1981, a
plaintiff must file a complaint within two years after the alleged
discriminatory conduct occurred. Walker v. Abbott Lab.s,
340 F.3d 471
, 474 (7th Cir. 2003). See also Jones v. R.R. Donnelley
& Sons Co., 305 F.3d 717
, 728 (7th Cir. 2002), cert.
granted, ___U.S.__ 123 S.Ct. 2074 (2003). In determining the
statute of limitations for § 1981 claims, the court held that the
most analogous statute of limitations was the two-year personal injury
statute of Illinois, the forum state, rather than 28 U.S.C.A. § 1658,
the four-year statute of limitations for federal civil actions arising
under acts of Congress enacted after December 1, 1990. Jones,
305 F.3d at 728. Therefore, Plaintiffs are barred from raising claims of
discrimination under § 1981 for alleged discriminatory acts occurring
before February 25, 1996, two years before Plaintiffs filed their first
C. Continuing violation
Dixon argues that alleged acts of discrimination occurring before April
24, 1997 (the cut-off date for Title VII claims), and before February
25, 1996 (the cut-off date for § 1981 claims), are not
time-barred because they are part of a "continuing violation" by the
Bank. A continuing violation is one whose discriminatory character did
not become clear until it was repeated during the limitations period.
Dixon claims that a continuing violation is demonstrated by each of
Plaintiffs' allegations that the Bank had a long-held "pattern and
practice" of racial discrimination against African-Americans and that the
Bank's alleged discriminatory acts were similar, repetitive, and
continuous. Dixon's argument, however, is misplaced. First, when a
plaintiff files an individual claim, rather than a class action, the
plaintiffs "evidence of a pattern and practice can only be collateral to
evidence of specific discrimination against the actual plaintiff."
Gilty v. Village of Oak Park, 919 F.2d 1247, 1252 (7th Cir.
1990) (internal citations omitted).
Second, the continuing violation doctrine does not apply to discrete
acts of discrimination that can be pinpointed to a particular day.
Thompson v. White, No. 02-3891, 2003 WL 21212681, at *2 (7th
Cir. 2003) (citing Morgan, 536 U.S. 101). Plaintiffs'
allegations of discriminatory acts that occurred before the relevant time
periods consist only of discrete acts under Morgan. Plaintiffs
point to specific dates when they felt discriminated against, including
primarily failure to promote claims. See Morgan, 536 U.S. at 114
(discrete discriminatory acts include failure to promote).
In Tinner v. United Ins. Co. of Am., however, decided before
Thompson but four months after Morgan, the Seventh
Circuit held that a continuing violation could be proven where discrete
acts of discrimination are part of an ongoing pattern and at least one of
the discrete acts occurred within the relevant limitations period.*fn2
308 F.3d 697, 707 (7th Cir. 2002). Contrary to Dixon's and the other
Plaintiffs' evidence, however, this ongoing pattern must be shown through
their individual claims
of discrimination, not through other employees' claims and not through a
general pattern or practice. Gilty, 919 F.2d at 1252. To justify
treating separate violations as an ongoing pattern, each individual
plaintiff must show that it would have been unreasonable to expect them
to sue separately on each alleged violation before the statute ran on the
conduct. Tinner, 308 F.3d at 707-08. "[I]f the employee knew, or
with the exercise of reasonable diligence should have known, that each
act, once completed, was discriminatory, the employee must sue upon that
act within the relevant statutory period." Id. at 708.
In making this determination, the court considers; (1) whether the
alleged acts against the plaintiff involve the same subject matter; (2)
the frequency with which the acts occur; and (3) the degree of permanence
of the alleged acts of discrimination that should trigger an employee's
awareness and duty to assert his rights. Id. In Tinner,
the Seventh Circuit held that each incident including a job
transfer, an admonishment by a manager regarding the way Tinner treated a
fellow employee, and a dress code violation represented a
discrete act that became actionable when they occurred because Tinner
felt discriminated against after each incident. Id. at 709. In
addition, the incidents were not frequent enough to show a pattern
because there was a six-year, three-year and two-year gap between each
discrete act. Id. Moreover, the court held that the degree of
permanence surrounding Tinner's route transfer should have made Tinner
aware of the need to protect his rights. Id. Therefore, the
court found that the employer's alleged discriminatory acts did not
constitute a continuing violation. Id.
Similarly, in Selan v. Kiley, the Seventh Circuit held that
the alleged discriminatory acts including a transfer and a
demotion were too permanent to constitute a continuing violation,
in that they separately and permanently removed managerial duties from
the plaintiff. 969 F.2d 560, 567
(7th Cir. 1992). Because of their permanent nature, each discrete act
should have triggered the plaintiffs awareness of the need to assert or
else waive her rights. Id. Furthermore, a two-year gap between
allegedly discriminatory acts could not support a continuing violation
As in Tinner and Selan, the discriminatory acts
alleged by Plaintiffs that occurred before the relevant statutory period
were too discrete, too permanent, and too far apart in time to support
the contention that the acts were continuous. Dixon, for example, alleges
that she was denied promotions for discriminatory reasons in November
1992, October 1994, and January 1995. The first two denials of promotions
occurred two years apart, and are too far apart in time to constitute a
continuing violation. In addition, each of the alleged incidents were too
permanent and distinct in nature to constitute a continuing violation, as
Dixon testified that at the time she was denied the promotions she
believed she was more qualified than the successful candidates for the
position and thus discriminated against. Each Plaintiff similarly alleged
untimely failure to promote or disparate pay claims that they felt were
discriminatory at the time the acts occurred. Therefore, Dixon and the
other Plaintiffs were not reasonable in waiting until 1998 to file their
charges alleging racial discrimination for time-barred acts.
V. Section 1981 And At-Will Employees
For certain Plaintiffs (Brice, Matthews, and Dixon), the Bank claims
that it is entitled to summary judgment on their § 1981 claims
because they were at-will employees. The parties do not dispute that
Plaintiffs were at-will employees and that, therefore, either party to
the employment relationship could terminate the relationship at any
time. The Bank argues that as at-will employees, Plaintiffs had no
contractual relationship with the Bank and thus could not bring a claim
under § 1981. While it is true that proof of a contractual
relationship is necessary to establish a § 1981
claim, at-will employment relationships are sufficiently contractual in
nature to maintain a § 1981 action for discrimination, at least with
regard to issues of promotion and pay. Walker, 340 F.3d at
475, 478. At-will employees are capable of losing or quitting their
employment at any time, but they still maintain the enforceable
contractual rights of wages, benefits, duties, and working conditions.
Id. at 476. Therefore, although at-will employees may not be
able to raise § 1981 claims with respect to termination or lay-off,
they may maintain § 1981 claims for issues of wages, benefits
(including promotions), duties, and working conditions. This Court need
not reach the issue whether at-will employees may raise § 1981 claims
with respect to termination because each Plaintiff has failed to state
a prima facie case of discrimination.*fn3
VI. Prima Fade Case Of Discrimination
The Bank claims that summary judgment is also proper against each of
the Plaintiffs on their timely allegations of discrimination because
they fail to establish a prima facie case of discrimination
under both Title VII and § 1981. Under § 1981, "[a]ll persons
within the jurisdiction of the United States shall have the same right
. . . to the full and equal benefit of all laws . . . as is enjoyed by
white citizens." 42 U.S.C. § 1981. Under Title VII, it is unlawful
for an employer "to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, . . .
or to segregate, or classify his employees or applicants for employment
in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect
his status as an employee because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(l-2).
When a plaintiff alleges intentional discrimination, as in this case,
Title VII and § 1981 actions have the same liability standards, and
they are analyzed in the same manner. Eiland v. Trinity Hosp.,
150 F.3d 747, 750 (7th Cir. 1998); Friedel v. City of Madison,
832 F.2d 965, 971-72 (7th Cir. 1987). A plaintiff alleging race
discrimination must prove his or her claims using direct or indirect
evidence. "[D]irect evidence essentially requires an admission by the
decision-maker that his actions were based upon the prohibited animus."
Cerutti v. BASF Corp., 349 F.3d 1055, 1060-61 (7th Cir. 2003). A
plaintiff can also prevail under the direct method by presenting
circumstantial evidence that points directly to a discriminatory reason
for the employer's action. Id. Plaintiffs have not alleged
direct evidence of discrimination. Therefore, they must prove their
claims under the McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), indirect burden-shifting method of proof.
Under the indirect method, a plaintiff must first establish a prima
facie case of discrimination. A. prima facie case of
discrimination requires a showing that: (1) the plaintiff is a member of
a protected class; (2) the plaintiff was qualified for the job or was
meeting the employer's legitimate expectations; (3) the plaintiff
suffered an adverse employment action; and (4) the employer treated
similarly situated employees outside of the protected class more
favorably. Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1035
(7th Cir. 1999). The Bank does not dispute that Plaintiffs are members of
a protected class African-American so the Court will
address the remaining three elements of the prima facie case.
A. Dennis Daniels
1. Did Daniels suffer an adverse employment action?
Daniels alleges that he suffered three adverse employment actions by
the Bank on account of his race: demotion, failure to promote, and
constructive discharge. The Bank argues that none of these constitute
adverse employment actions.
The Seventh Circuit defines an adverse employment action as:
. . . more disruptive than a mere inconvenience
or an alteration of job responsibilities. A
material adverse change might be indicated by a
termination of employment, a demotion evidenced by
a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly
diminished material responsibilities, or other
indices that might be unique to a particular
situation. Of course, not everything that makes an
employee unhappy will suffice to meet the adverse
action requirement. Rather, an employee must show
that material harm has resulted from the
Traylor v. Brown, 295 F.3d 783
, 788-89 (7th Cir. 2002)
(internal citations omitted). See also Crady v. Liberty Nat. Bank and
Trust Co. of Indiana, 993 F.2d 132
, 135-36 (7th Cir. 1993).
Daniels alleges that he was demoted when the Bank transferred him from
a manager in the Communications and Information Services unit to
Electronic Communications Team Leader. The Bank disputes that this
transfer was a "demotion," and claims that Daniels' job change was merely
a "lateral transfer." Daniels was transferred to the newly created
position of Electronic Communications Team Leader when the Communications
and Information Services unit was dissolved in July 1996. Daniels
retained the same job grade, salary, and benefits he had before his
transfer. Daniels' new responsibilities included coordinating activities
related to the strategic
marketing direction of the Bank's newly developed Web site and
internal Intranet, and small projects such as floor arrangements and
office moves. He supervised two people in his new position.
In his affidavit and in a questionnaire he filled out himself, Daniels
stated that his duties in his former position included: coordinating
preparation of conference and committee briefings for the President and
First Vice President on critical system issues; preparing and monitoring
departmental goals, objectives, and budget; monitoring and coordinating
contingency planning and data security for the Secretariat and Legal
Departments; and assisting the officer in charge in providing general
research to the President, First Vice President, and senior officer.
Daniels supervised between two to five employees at various times in that
position. Based on these differences in job responsibilities between the
two positions, Daniels claims that he meets the test for a materially
adverse employment action. The Court disagrees.
Under Traylor, Daniels must show that he faced "significantly
diminished material responsibilities" in his new position.
Traylor, 295 F.3d at 788-89. Although Daniels' responsibilities
changed with his transfer, Daniels has not shown that his
responsibilities were "significantly diminished." In Crady, the
Seventh Circuit held that the plaintiffs transfer from a branch manager
position to a collections officer position did not constitute a
materially adverse employment action. Crady, 993 F.2d at 135-36.
Although the plaintiffs responsibilities had changed, he did not show
that they were less significant than the responsibilities he previously
enjoyed. Id. In addition, although the latter position did not
carry with it an assistant vice president designation, the plaintiff
would have maintained a management-level position at the same salary and
benefits he was already receiving. Id. Therefore, the court held
against the plaintiff.
As in Crady, Daniels maintained the same salary and benefits
in his new job. He continued to supervise other employees, and he was in
charge of marketing for the Bank's Web site and Intranet. Daniels'
disappointment that he no longer interfaced with the board and senior
management does not demonstrate that his responsibilities were
"significantly diminished." In addition, Daniels provides insufficient
evidence for his claim that he was less busy in his new position or that
it was a "dead end" position with no opportunity for advancement. Daniels
cites only his own subjective impression that the board lacked interest
in the Website and Intranet. A plaintiffs speculation, however, is not a
sufficient defense to summary judgment. Karazanos v. Navistar Int'l
Trans. Corp., 948 F.2d 332, 337 (7th Cir. 1991). Daniels only has
evidence that his responsibilities were different, not substantially
diminished, and thus, a reasonable jury could not find that Daniels'
transfer to Electronic Communications Team Leader was a demotion.
b. Constructive discharge
Daniels also claims that the Bank constructively discharged him on
account of his race on September 25, 1997, when he resigned from his
position at the Bank. A claim of constructive discharge requires a
showing that: (1) the plaintiff was constructively discharged; and (2)
the plaintiff was constructively discharged on account of a protected
characteristic. EEOC v. Sears, Roebuck & Co., 233 F.3d 432,
440 (7th Cir. 2000). To prove constructive discharge, a plaintiff
must show that his working conditions "were so intolerable that a
reasonable person would have been compelled to resign." Drake v.
Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998).
In addition, "[t]he working conditions must be more than merely
intolerable; they must be intolerable in a discriminatory way."
Robinovitz v. Pena, 89 F.3d 482, (7th Cir. 1996). Working conditions that
intolerable require an "aggravating situation" beyond "ordinary"
discrimination, as an employee
is otherwise expected to seek legal redress while remaining in his job.
Sears, 233 F.3d at 440-41; Drake, 134 F.3d at 886;
Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir.
It is undisputed that the catalyst for Daniels' resignation was the
Bank's transfer of him in July 1996 to the position of Electronic
Communication Team Leader. Daniels, however, claims that his resignation
amounts to a constructive discharge because his transfer to the new
position and the Bank's alleged pattern and practice of discrimination
made working conditions so intolerable that a reasonable person would
have been compelled to resign. Daniels' argument is without merit. First,
Daniels remained in the position of Electronics Communications Team
Leader for over 15 months before resigning on September 26, 1997. The
length of time a plaintiff remains in the job may indicate that the
working conditions were not so intolerable as to cause the employee to
leave his job. See Gawley v. Indiana Univ., 276 F.3d 301, 315
(7th Cir. 2001) (seven month wait before plaintiff availed herself of the
formal procedures for victims of harassment indicated work conditions
were not intolerable); Rabinovitz, 89 F.3d at 489 (plaintiff
enduring workplace restrictions for year and a half not constructively
discharged); Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662,
667 (7th Cir. 2001) (where employee did not resign until four months
after alleged sexually harassing incidents occurred, employee could not
claim that those incidents were the triggering events that made it
impossible for her to remain at the store); Sweeney v. West,
149 F.3d 550, 558 (7th Cir. 1998) (where employee did not resign until almost
two full years after the last reported instance of mistreatment, employee
was not compelled to resign).
Daniels responds that he had to wait fifteen months before quitting
because he initially did not know what the newly created position of
Electronic Communications Team Leader entailed, since it did not have a
"real job description." Daniels likens his case to Ulichny v. Merton
Dist., where the Seventh Circuit held that the employee
principal, who left her position three weeks after she was given fewer
responsibilities, had not endured the changes for long enough to
determine whether work conditions were so intolerable that she could be
considered constructively discharged. 249 F.3d 686, 701 (7th Cir. 2001).
Daniels' fifteen-month delay, however, is much closer to the time frames
at issue in Rabinovitz, Gawley, Mosher, and Sweeney,
where the Seventh Circuit found the employees' delays of four months to
two years were too long to constitute constructive discharge.
Second, Daniels' claim that work conditions were intolerable because
the Bank allegedly discriminated against African-Americans in general
by depriving African-Americans of opportunities for promotion and
increased educational training does not help his case. As the
Court has already stated, when a plaintiff files an individual claim,
rather than a class action, the plaintiffs "evidence of a pattern and
practice can only be collateral to evidence of specific discrimination
against the actual plaintiff." Gilty, 919 F.2d at 1252. The
class in this case was decertified in May 2002, and therefore only the
individual plaintiffs' claims remain. Moreover, Daniels has provided no
concrete evidence of this alleged pattern or practice that could even
suffice to use as collateral, background evidence. The President of the
Bank, Michael Moskow, testified without contradiction that 16% of the
Bank's officers and managers were African-American, and Daniels provided
no evidence to support his claims that the Bank manipulated the grading
system or subjected African-Americans to a higher level of scrutiny.*fn4
The two other actions alleged by Daniels also did not cause intolerable
working conditions. Daniels cites two instances in September 1997 where
Assistant Vice President Robert Lapinski
voiced his disapproval of Daniels: regarding an idea Daniels had
and Daniels' floor arrangement of the office. These acts, even if
unwarranted, do not, by themselves, rise to the level of intolerable
conditions for a reasonable employee. See, e.g., Harriston v. Chicago
Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993) ("lack of supervisor
support" and reprimands from employer for no reason not intolerable);
Grube v. Lau Indus., Inc., 257 F.3d 723, 729 (7th Cir. 2001)
("[U]nfair reprimands or negative performance evaluations, unaccompanied
by some tangible job consequence, do not constitute adverse employment
actions"); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.
1996) (finding that negative performance evaluations alone fail to
satisfy the third prong of McDonnell Douglas test). Therefore,
Daniels has not offered sufficient evidence to create a triable issue of
fact with respect to his claim of constructive discharge.
c. Failure to promote
Daniels also claims that the Bank denied him two promotions because of
his race: an administrative officer, strategic marketing position in
1997; and an assistant vice president, administrative services position
in 1996. These positions were filled by white employees. The positions
were not posted, and Daniels was thus unable to apply for them. In order
to establish a material adverse action in the failure-to-promote context,
the plaintiff must show that he was rejected for that position.
Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir. 2003);
Gorence v. Eagle Food Centers, 242 F.3d 759, 765 (7th Cir.
2001); Johnson, 260 F.3d at 732 (7th Cir. 2001).*fn5
Daniels, however, admits that he was not even considered for these
officer positions, and, as explained below, he provides insufficient
evidence that he was qualified for these positions.
Daniels' only evidence is that between 1995 to 1997, he allegedly told
Jim Holland and Kristi Zimmerman, Assistant Vice Presidents in the
Communications and Information Services department, that he wanted to be
considered for promotion to the officer level. In 1995, before the
relevant statutory time periods, Daniels also allegedly made his desires
known to Assistant Vice President and Secretary, Joan DeRycke, and the
General Counsel, William Graham, and Graham agreed to recommend Daniels'
promotion to the Bank President. Daniels, however, does not allege that
these employees had the authority to promote him or to influence the
President's decision to promote him, or that they even discussed the two
positions at issue administrative officer and assistant vice
president. Therefore, Daniels has not shown that he was considered and
rejected for these positions, and Daniels has failed to make out a
prima facie case of discrimination.
2. Was Daniels qualified for the job or meeting the Bank's
Even if Daniels could show that he was denied a promotion, he has not
shown that he was qualified for the jobs to which he sought promotion.
Daniels did not identify the job requirements for either of the officer
positions at issue, so Daniels cannot show that he met the requirements.
"The comparisons are meaningless absent some information concerning the
hiring criteria for these positions." Bennett v. Roberts,
295 F.3d 687, 696 (7th Cir. 2002). In addition, Daniels argues that the Bank
promoted less qualified white employees to the jobs he sought, but he
does not state those employees' qualifications. "It is fundamental that
to make a comparison of a discrimination plaintiffs treatment to that of
[other] employees, the plaintiff must show that the `comparables' are
similarly situated in all respects." Spath v. Hayes Wheels,
Int'l-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000). Daniels'
remaining arguments that he met or exceeded his supervisors' expectations
consist primarily of his own self-serving testimony.
Daniels' subjective self-appraisal, however, cannot by itself create a
genuine issue of fact. Dunn v. Nordstrom, Inc., 260 F.3d 778,
787 (7th Cir. 2001). Besides his own affidavit, Daniels presents a June
1996 letter from Kristi Zimmerman, stating that "we can rely on Dennis'
many years of experience to give either group a hand when needed." This
letter, however, does not relate to the promotions Daniels sought, and so
it does not show that Daniels was qualified for those two positions. In
addition, the Bank's President and its former Chief Operating Officer
testified in deposition that while Daniels worked in the Communications
and Information Services unit in the Office of the Secretariat, they
found Daniels' executive summaries unhelpful, his performance weak, and a
report inadequate. In Dunn, the Seventh Circuit held that the
plaintiff did not prove he was qualified for a manager position by
showing that: the employer had recognized his capability to fulfill the
manager position "soon"; he received "excellent ratings" from his
superiors while the promoted employee did not; he received two
performance awards from his employers; and he had already proven his
abilities as assistant manager and acting manager in another store.
Dunn, 260 F.3d at 787. Daniels presents much less evidence of
his qualifications than was presented in Dunn, and thus Daniels
has not shown that he met or exceeded his supervisors' expectations.
3. Did the Bank treat similarly situated employees outside of
the protected class more favorably?
The Court need not reach this prong of the prima facie case
for Daniels because Daniels failed to prove that the Bank committed a
material adverse employment action or that he was
qualified for the positions he sought. Regardless, Daniels does not
show that similarly situated employees outside of the protected class
were treated more favorably than he was. Daniels does not provide
evidence of what happened to other employees from the dissolved
Communications and Information Services unit, and he does not provide
evidence that the employees actually promoted to the two officer jobs he
sought were similarly situated to him.
B. Lorraine Matthews
1. Did Matthews suffer an adverse employment action?
Matthews claims that she suffered five adverse employment actions on
account of her race: denial of training, failure to promote, failure to
receive an award, disparate pay, and termination of employment.
a. Denial of training
First, Matthews claims that in 1995 or 1996, she requested to be
trained for the computer room because there was going to be a job opening
there. A position in the computer room opened up when an African-American
employee was removed, and Matthews asked her supervisor, Kathy Balice, if
she could be trained to learn the computer room, but Balice responded
that they did not need any more people for the computer room at that
time. The Bank denied Matthews' request for training, and weeks later,
Sokol was transferred to the computer room.
"A discriminatory denial of job-related training can constitute an
adverse employment action under Title VII." Durkin v. City of
Chicago, 341 F.3d 606, 611 (7th Cir. 2003) (citing Pafford v.
Herman, 148 F.3d 658, 667 (7th Cir. 1998)). But see Volovsek v.
Wisconsin Dept. of Agr., Trade and Consumer Protection, 344 F.3d 680,
688 (7th Cir. 2003) (inadequate training does not, by itself, amount
to the kind of adverse employment action that constitutes discrimination
Although Matthews may not have received training she desired, she does
not allege that anyone else received that training either. Therefore, as
explained further below, Matthews does not demonstrate a prima
facie case of failure to promote because she does not show that the
Bank trained similarly situated employees not in the protected class.
See Durkin, 341 F.3d at 612.
b. Failure to promote
Matthews next claims that weeks after she requested training, the Bank
chose a Caucasian employee for the opening in the computer room, instead
of Matthews, on account of Matthews' race. As explained above, in order
to establish a material adverse action in a failure-to-promote context,
the plaintiff must show that she was rejected for that position.
Grayson, 317 F.3d at 748. As with Daniels, however, Matthews
does not allege that the Bank even considered her, much less rejected
her, for the computer room position. The Bank instead chose Josephine
Sokol, whom Matthews admits had more knowledge about computers than she
did at the time Sokol was transferred to the computer room.
c. Failure to receive an award
Matthews also alleges that she was discriminated against on the basis
of race when she did not receive an award from the Bank. Over two
weekends in October and November of 1996, she and several other employees
from her department worked overtime on a special project. Matthews did
not receive a special recognition award from the Bank for work on this
project, but Matthews believes that most of the other employees working
on the project did receive awards. Matthews' failure to receive this
award does not constitute an adverse employment action. "[T]he denial of
a monetary perk, such as a bonus or reimbursement of certain expenses,
does not constitute an adverse employment action if it is wholly within
the employer's discretion to grant or deny and is not a
component of the employee's salary." Tyler v. Ispat Inland
Inc., 245 F.3d 969, 972 (7th Cir. 2001). See also Miller v. Am.
Family Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2000) (holding
that denial of a bonus was not an adverse employment action). In
Matthews' case, the award was even less significant, as it did not
involve money or any other type of substantive employment gain.
Furthermore, Matthews does not know the names or races of those who did
or did not get awards, and thus does not show similarly situated
employees were treated differently than she. Therefore, her failure to
receive the award does not constitute an adverse employment action.
d. Disparate pay
Matthews claims that the Bank also discriminated against her by paying
her less than two non-African-American employees, Jeannette Mihalic and
Gail Freer. The Bank admits that Matthews was paid less than Mihalic and
Freer, and an allegation of disparate pay is, in general, sufficient to
state an adverse employment action. See Herrnreiter v. Chi. Hous.
Auth., 315 F.3d 742, 744 (7th Cir. 2002); Hildebrandt v.
Illinois Dept. of Natural Resources, 347 F.3d 1014, 1030-31 (7th
Cir. 2003). The Bank, however, denies that these employees were similarly
situated to Matthews.
e. Termination of employment
Finally, Matthews contends that the Bank discriminated against her by
terminating her employment on the basis of her race. The Bank admits that
this allegation, if true, would amount to an adverse employment action.
Traylor, 295 F.3d at 788-89. The Bank disputes, however, that
Matthews was meeting the Bank's legitimate expectations.
2. Was Matthews qualified for the job or meeting the Bank's
The Bank farther disputes Matthews' claims of discriminatory denial of
training and termination on the grounds that she does not meet this next
prong of the prima facie case. First, Matthews basically admits
that she was not qualified for the job in the computer room; that is why
she would have needed training for the position. Sokol, on the other
hand, the employee chosen for the computer room position, was more
knowledgeable in computers than Matthews.*fn6 Matthews did not claim
that Sokol needed training on the computers.
Second, the Bank contends that, contrary to Matthews' discrimination
claims, it terminated Matthews' employment for insubordination. In order
to establish a prima facie case of wrongful termination based on
racial discrimination, Matthews must show that she was performing her job
satisfactorily enough to avoid discharge absent racial bias. Cowan v.
Glenbrook Security Srvs., Inc., 123 F.3d 438, 445 (7th Cir. 1997).
Matthews admits to the conduct for which the Bank claims she was
terminated. Matthews' awareness for her below-average performance began
on February 20, 1997, when she received a written Unplanned Absence
Disciplinary Action Notice and was placed on counseling status for ninety
days. In that same month, Matthews was rated by supervisor Lily Chin as
"did not meet expectations" because she only produced thirteen cases per
day, rather than the twenty or more required for a rating of "met
expectations" or above. On March 18, 1997, Matthews was counseled by
supervisor Cassandra Ramsey regarding additional unplanned absences, and
she was issued another written Unplanned Absence Disciplinary Action
Notice and placed on warning status for ninety days. In March, Matthews
received another performance review from Chin
with an overall rating of "did not meet expectations." On April
3, 1997, Matthews received a formal notice for not meeting her
department's expectations on productivity, and she was placed on warning
status for three months. In June 1997, Matthews again received an overall
rating of "did not meet expectations" on a performance review from
supervisor Sylvia Prickel. That month, the Check Adjustment Department
implemented new performance measures based on efficiency standards
whereby employees were required to maintain a 60% efficiency rating. As
of November 1997, Matthews' performance efficiency rating was 32%.
Finally, on November 17, 1997, Kathy Williams and Kathy Balice,
supervisors in the Check Adjustment Department, and Cassandra Ramsey,
Matthews' direct supervisor, met with Matthews to discuss her
performance. They presented Matthews with a probationary memorandum and
stated that if Matthews did not read and sign the memo and discuss her
performance, then she would be terminated. Matthews raised her voice at
the other women, refused to read or sign the memo, and walked out of the
meeting Matthews claims, to go to a previously scheduled
appointment. The supervisors claim that Matthews yelled and screamed and
totally lost control, which they considered to be insubordinate. Matthews
was then terminated effective immediately.
"It is not [the Court's] province to second-guess the business judgment
of an employer where, as here, it acted on ample legitimate justification
for [terminating] the plaintiff." Cowan, 123 F.3d at 445-46
(quoting Smith v. Firestone Tire & Rubber Co.,
875 F.2d 1325, 1330 (7th Cir. 1989)). In Cowan, the Seventh Circuit held
that even when viewing the facts in the light most favorable to the
plaintiff, the plaintiff did not meet his employer's legitimate
expectations because his habitual tardiness and flagrant disregard of his
supervisor's repeated warnings in the months prior to his dismissal were
clearly the cause of his termination as alleged by the employer.
Cowan, 123 F.3d
at 444-46. In addition, in Firestone, the Seventh Circuit
held that the plaintiff could not expect to maintain his supervisory
position in light of his sharply deteriorating performance.
Firestone, 875 F.2d at 1330. As in Cowan and Firestone,
the combination of Matthews' excessive absences, her below average
performance, and her outburst at her supervisors after being warned
against each of these problems provided ample non-discriminatory
justification for the Bank to terminate Matthews, and the Court will not
second-guess the Bank's business judgment.
3. Did the Bank treat similarly situated employees outside of
the protected class more favorably?
With regard to her disparate pay claim, Matthews alleges that certain
Caucasian bank employees Mihalic, Freer, and Ripoli
earned more than she did in the 1990's solely because of their race.
Matthews, however, has not shown that these employees were similarly
situated to her. As stated above, in comparing a discrimination
plaintiff's treatment to other employees, "the plaintiff must show that
the `comparables' are similarly situated in all respects." Spath,
211 F.3d at 397. This includes job title, grade, performance,
qualifications, experience and/or seniority. Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). Matthews has not shown
that she was similarly situated to Mihalic and Freer in any of these
respects. First, Matthews has not provided evidence of Mihalic's and
Freer's salaries. Second, Matthews admits that Mihalic and Freer were not
similarly situated to her, because she admits that during the time frame
from which her pay claims arise, Mihalic and Freer had higher job grades
with higher salary ranges than her. Mihalic was three grades ahead of
Matthews by the time Matthews even began working at the Bank in 1969. The
fact that Matthews assisted Mihalic with some part of her job does not
mean that Matthews was as qualified or experienced as Mihalic and
deserved to receive the same pay as her.
Matthews also has not shown that she was similarly situated to Ripoli.
In 1982, the two employees had the same grade and received the same
salary, but by 1985, Ripoli was earning $1,500 per year more than
Matthews, and their pay disparity continued through the 1990's. Thus,
during the relevant time periods, Ripoli and Matthews were not similarly
situated. In addition, Matthews fails to present evidence as to Ripoli's
work performance, qualifications, or seniority. Radue, 219 F.3d
at 617-18. As such, she has not shown that Ripoli's "comparables" were
similarly situated to her own. Spath, 211 F.3d at 397.
In addition, with regard to her failure to promote claims, Matthews
admitted that the employee who was chosen to move to the computer room,
Josephine Sokol, was not similarly situated to her, as Sokol was more
knowledgeable and experienced in computers than Matthews. Matthews also
admits that she does not know why the previous African-American employee
was removed from the computer room, or what job duties Sokol performed in
the computer room. Therefore, Matthews has not presented sufficient
evidence that similarly situated white employees were treated better than
C. Alice Dixon
1. Did Dixon suffer an adverse employment action?
Dixon claims that the Bank discriminated against her by denying several
of her applications for promotion, demoting her, and paying her less than
other employees between 1992 and 2000. The Court need only address those
claims that came after February 1996, the earliest that a § 1981
claim may stand in this case. In October 1996, Dixon applied for a
Customer Service Consultant ("CSC") position, which ranges from grades
nine to eleven, but Dixon was not selected for any of the open positions.
In November 1996, Dixon was promoted to processor A, grade six. On
January 6, 1997;
April 10, 1997; and January 9, 1998; Dixon applied for a CSC position
for a second, third, and fourth time, but she was not selected. Dixon
also applied for several other positions for which she was not selected:
(1) examiner trainee, October 1997; (2) assistant control specialist,
December 1997; (3) analyst in Check Administration department, January
1999; and (4) Special Operations Consulting Team, May 1999. Dixon retired
in July 2000, as a Processor A, grade six, in the Check Department. The
Bank agrees that on its face, a failure to promote constitutes a material
adverse employment action, but the Bank claims that Dixon was not
similarly situated to the employees who were given the promotions.
See Volovsek, 344 F.3d at 688 (the failure to promote is, in
general, considered an adverse employment action). Dixon also makes a
half-hearted disparate pay claim, alleging that her supervisors, Sandra
Gad and Kathy Balice, were less qualified than she was, but earned more
money. The Bank disputes this issue on the grounds that Gad and Balice
were not similarly situated to Dixon.
Dixon also claims that the Bank discriminated against her on the basis
of race by demoting her. Dixon argues that the Bank demoted her in
September 1997 when some of her credit information responsibilities were
transferred to the Customer Service Department. Prior to September 1997,
one of Dixon's responsibilities as a processor grade A was to provide
certain credit information to financial institutions, In September 1997,
Manager Marsha Coleman advised Dixon that those responsibilities would be
reassigned to the Customer Service Department. The reassignment also
affected two other employees with whom Dixon worked Judy Brown
(African-American) and Marion Caccioppo (white). Dixon's job grade and
salary were not affected by the reassignment of her credit information
responsibilities, but Dixon claims without supporting
evidence that the reassignment took away one-quarter of her
responsibilities. Shortly after the reassignment, Dixon, Brown, and
Caccioppo acquired certain additional debit-side duties.
The Bank's transfer of some of Dixon's responsibilities, however, did
not constitute a demotion. The reallocation of responsibilities did not
have a material adverse impact on her job, and similarly-situated white
employees were not treated more favorably. As explained in the Court's
discussion of Daniels, a demotion constitutes a materially adverse
employment action when it results in "a decrease in wage or salary, a
less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that maybe unique
to a particular situation." Crady, 993 F.2d at 136. See also
Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir.
1999). As with Daniels, neither Dixon's job grade nor salary were
affected by the reassignment of the credit information responsibilities.
In fact, the Bank also reassigned responsibilities away from two other
employees with whom Dixon worked, one of whom is white. Moreover, shortly
after the reassignment, Dixon acquired new debit-side responsibilities
which helped fill the gap left by the transferred credit information
responsibilities. Therefore, Dixon has not presented evidence showing
that her material responsibilities were significantly diminished or that
similarly situated white employees were treated more favorably than she
2. Was Dixon qualified for the job or meeting the Bank's
Dixon did not meet the Bank's qualifications for the promotions she
sought. Dixon believes her non-selection was discriminatory because she
thought her prior customer service experience qualified her for the open
positions. However, the hiring manager for CSC positions, William Gehant,
told Dixon that she was not selected for the CSC positions to which she
those positions were more than two grades above her current position, and
therefore, she was ineligible under the Bank's promotion policy. In
addition, on April 10, 1997, someone wrote "does not meet minimum
requirements" on her application. The CSC positions ranged from grades
nine through eleven, but Dixon never surpassed grade six. Once, in
January 1997, the Human Resources Manager, Leni Lagasholt, gave Dixon
permission to apply to a CSC position since she was a recent college
graduate; nevertheless, applicants with higher grade levels were chosen
for the positions.*fn7 Regarding the other jobs for which Dixon
applied, she does not provide evidence of the qualifications of the
successful applicants, and she does not list the prerequisites for those
jobs. Therefore, Dixon cannot prove that she was qualified for any
promotions for which she applied.
Dixon argues that the Bank's claim that she was not qualified for the
CSC positions because her grade was more than two levels below the grade
she sought was merely a pretext for discrimination because her white
supervisor, Sandra Gad, was promoted to a different position despite not
meeting the Bank's requirements. The Bank's stated policy required a
college degree for Gad's position, but the Bank determined that Gad had
knowledge and experience equivalent to a college degree despite not
having an actual degree. Dixon claims that the Bank's relaxing of
qualifications for Gad but not for her was based on race. Dixon's
allegation, however, fails on several levels. First, Dixon does not
allege that the Bank found her grade six job equivalent to a higher grade
job, as the Bank found Gad's knowledge was equivalent to its educational
requirements for her position. Second, Dixon does not show that the
business reasoning behind the Bank's promotion policies is the same for
educational requirements as for the grade level requirements. As
this Court has already stated, "[i]t is not [the Court's] province
to second-guess the business judgment of an employer where, as here, it
acted on ample legitimate justification . . . " Cowan, 123
F.3d at 445-46. Moreover, Dixon does not discuss Gad's work performance
and qualifications outside of her education, which may be better than
Dixon's and which the Bank may have also valued in making its promotion
3. Did the Bank treat similarly situated employees outside of the
protected class more favorably?
Dixon also has not shown that the Bank treated similarly situated
employees outside of the protected class more favorably. First, with
regard to Dixon's demotion claim, a white employee had the same
responsibilities transferred as Dixon. Second, with regard to her failure
to promote claims, Dixon either was not similarly situated to the
employees who ultimately got the positions for which she applied, or she
does not provide evidence of the qualifications of the employees who got
the positions. "It is fundamental that to make a comparison of a
discrimination plaintiffs treatment to that of non-[African-American]
employees, the plaintiff must show that the `comparables' are similarly
situated in all respects" Spath, 211 F.3d at 397 (emphasis in
original); Radue, 219 F.3d at 617-18. See also
Hoffman-Dombrowski v. Arlington Intern. Racecourse, Inc.,
254 F.3d 644, 651 (7th Cir. 2001); Patterson v. Avery Dennison Corp.,
281 F.3d 676, 680 (7th Cir. 2002). A failure to offer such "comparables"
dooms a plaintiffs Title VII claims and obviates the need to address her
particularized allegations of disparate treatment. Peele v. Country
Mut. Ins. Co., 288 F.3d 319, 331 (7th Cir. 2002).
For the positions she applied for in January 1997, October 1997,
December 1997, and January 1998, however, Dixon does not know how many
people applied for the open positions, the
racial composition of the applicant pool, who ultimately received
the open positions, what their educational background or work experience
was, or anything else about their qualifications. Therefore, she cannot
even begin to make the necessary comparisons. Similarly, although Dixon
was able to identify at least some of the successful candidates for
promotions she sought in October 1996 (four whites, three
African-Americans and one Hispanic with a higher job grade than Dixon),
April 1997 (a white employee with a higher job grade than Dixon), January
1999 (a Hispanic male), and May 1999, she admits that she knows nothing
about the applicant pool or the successful applicants' educational
backgrounds, qualifications or work performance.
Dixon claims that she does not need this evidence to show that she is
more qualified than the applicants because the Bank requested she train
the successful applicants for those positions. While the Bank denies that
Dixon did more than merely field occasional questions from these
individuals, even if the Bank did request that Dixon train the successful
applicants, that does not show that Dixon was as or more qualified for
the positions. Dixon does not state what she allegedly trained the
applicants to do, or whether it was a small or large part of their job.
Attorneys are trained every day how to use computers, how to use the copy
machines in the office, and even how to use their phones. Their trainers,
however, cannot claim to be capable of performing the attorneys' job.
Dixon also blames her failure to be promoted on her Caucasian
supervisor, Sandra Gad. Dixon claims Gad discriminated against her based
on her race because she provided greater career assistance to white
employees with less education than Dixon, such as Kathy Balice, who also
became Dixon's supervisor. Dixon claims that Gad did not support her in
her quest for promotions and told her she is responsible for developing
her own career plan. The Bank, however, denies that Gad provided greater
career assistance to Balice, and Dixon does not provide supporting
for this allegation. Moreover, Dixon does not allege anything
improper about Gad's encouraging her to develop her own career plan
there is no evidence that Gad developed Balice's or any other
employee's career plan.
Dixon also attempts to claim that the Bank discriminated against her
because her white supervisors, Gad and Balice, earned a higher salary and
higher grade than her while Dixon claims she was a more qualified
employee than them. Dixon claims that she became more qualified than Gad
and Balice when she received a college degree in 1996, since these two
women did not have college degrees. As explained above, in 1986, Gad
became a grade fifty-seven supervisor even though the position required a
college degree. Gad continued to be promoted and according to Dixon, by
1996, she earned approximately $14,000 more than Dixon. Balice also was
eventually promoted to a supervisory role and earned over $7,000 more
than Dixon by 1996.
Dixon's college degree, however, does not make her more qualified than
Gad and Balice. It may make Dixon more educated than her supervisors, but
as Dixon admits, Gad and Balice were not similarly situated to her as
they were her supervisors, and they appropriately earned more money than
she did. Moreover, Dixon does not discuss any employee attributes besides
education where Gad and Balice may have surpassed Dixon, such as work
performance or experience. "In determining whether two or more
individuals are similarly situated, we have centered our analysis on
characteristics such as education, experience, performance,
qualifications, and conduct." Zaccagnini v. Chas. Levy Circulating
Co., 338 F.3d 672, 675-76 (7th Cir. 2003). See also Balderston
v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 319
(7th Cir. 2003). Furthermore, "[d]ifferent employment decisions,
concerning different employees, made by different supervisors, are seldom
sufficiently comparable to establish a prima facie case of
the simple reason that different supervisors may exercise their
discretion differently." Radue, 219 F.3d at 618. Dixon does not
suggest that the same supervisors decided her employment fate as decided
that of her supervisors Gad and Balice (in fact, she alleges that Gad and
Balice decided her fate), and Dixon provides no evidence that the Bank
ever promoted someone multiple levels to a supervisory position just
because they earned a college degree.
After her other arguments come up short, Dixon argues that the Bank had
a "pattern and practice" of discrimination. As explained above, however,
this is not sufficient to show a prima facie case of
discrimination, Gilty, 919 F.2d at 1252, and even if it was
sufficient, the purported statistical evidence Dixon presents does not
help Dixon's individual claims.*fn8
In order to be considered, the statistics must
look at the same part of the company where the
plaintiff worked; include only other employees who
were similarly situated with respect to
performance, qualifications, and conduct; the
plaintiff and the other similarly situated
employees must have shared a common supervisor;
and treatment of the other employees must have
occurred during the same [time frame] as when the
plaintiff was discharged.
Balderston, 328 F.3d at 320. hi Kadas v. MCI
Systemhouse Corp., the Seventh Circuit declined to set out a per
se rule that statistical evidence alone could never establish a
prima facie case of intentional discrimination. 255 F.3d 359
363 (7th Cir. 2001). However, the Seventh Circuit explained that such a
case where statistical evidence might ever suffice would be "extreme, an
unusual case," and "it is unlikely that a pure correlation . . . would be
enough to establish & prima facie case of intentional
But, as the Seventh Circuit found in Kadas, the existence of
an unusual case exception "cannot help the plaintiff in this case, the
facts of which are wildly different." Id. See also Kidd v. Illinois
State Police, 167 F.3d 1084, 1101 (7th Cir. 1999). While Dixon
claims discrimination caused her not to be promoted past the grade six
level, her statistics show that in 1996, 45.1% of employees in grades
eight to nine and 25.1% of employees in grades ten to eleven were
African-American. Furthermore, although the number of African-American
employees dropped off in grades twelve to sixteen, African-Americans were
promoted in greater percentages than their representation in those grade
levels. While African-American employees made up 15.2% to 5.9% of those
grade levels, 16% of the promotions were of African-American employees.
In addition, while only 25% of employees in grades ten to eleven were
African-American, 20% of the promotions were African-Americans. These
numbers do not establish or even support a prima facie case.
D. Gerard Brice
1. Did Brice suffer an adverse employment action?
Brice alleges that the Bank discriminated against him based on race by
failing to grant him various promotions and through wage discrimination.
a. Failure to promote
As explained above, a failure to promote where the plaintiff was
actually rejected for a position is considered an adverse employment
action. Volovsek, 344 F.3d at 688; Grayson, 317 F.3d at
748. The Bank does not dispute that it did not promote Brice to the
positions hereafter described. First, Brice claims that in January or
February of 1996, during the restructuring in the Accounting Department,
the Bank failed to promote him to the supervisor position ultimately
awarded to a Caucasian employee, Michael Van Nest. Next, Brice claims
that at some point between February
and July of 1996, the Bank failed to promote him to the newly
created position of supervisor of the Interdistrict Accounting Group in
the Accounting Department, which was filled by another Caucasian
employee, Chris Barfels. Neither of these supervisor positions were
posted; therefore, Brice could not apply for them. According to Brice's
deposition testimony, he expressed interest in the position filled by Van
Nest when he told department manager Mark Taylor that he "definitely
wanted to be one of the candidates" for a new supervisor position that
might result from the restructuring of the Accounting Department. In
addition, before Barfels received his promotion, Brice claims that he had
discussions with Taylor about moving up within the Interdistrict
Accounting Department. However, Brice does not allege that Taylor agreed
to consider him for the position or that Taylor had the authority to
promote him or recommend him for promotion. Thus, Brice has not shown
that he suffered an adverse employment action with respect to the two
Lastly, Brice claims the Bank denied him an auditor position based on
his race, In September 1997, Brice applied for and was interviewed for
one of four posted auditor positions available in the Audit Department.
Brice, however, was not selected for the position. Four Caucasians
individuals who had recently graduated from college were placed in the
auditor positions. Because Brice has established that he applied for and
was denied the auditor position, he has shown that he suffered an adverse
b. Wage discrimination
Brice also alleges that he is underpaid in comparison to white
employees, specifically Van Nest and Barfels, In general, a claim of
disparate pay is sufficient to show an adverse employment action, In the
wage discrimination context, a prima facie case requires the
plaintiff to show that he was paid less than a similarly situated person
outside of the protected class. See Johnson v. Univ.
of Wisconsin-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995).
In this case, Brice cannot show that he was similarly situated to Van
Nest or Barfels, as will be shown below.
2. Was Brice qualified for the job or meeting the Bank's
Even if Brice had established that he was considered for and rejected
from the supervisory positions, Brice has not proven that he was
qualified for those positions. Brice admits that he does not know what
all of the criteria were for selecting the individual to fill the
supervisor positions. Nevertheless, Brice testifies that he was qualified
for the positions. In 1997, a year after Van Nest had been promoted to
one of the supervisor positions, Van Nest testified in deposition that
Brice was qualified to be a supervisor. Van Nest's testimony, without
evidence that Van Nest had any voice in the promotion decision and
without evidence of the selection criteria for the position, does not
establish that Brice was qualified for the supervisor position at the
time Van Nest received the position or even at the time of Van Nest's
testimony. Brice also cannot show he was qualified for the position
filled by Barfels because he only has his own self-serving testimony to
support that claim. Dunn, 260 F.3d at 787. Without evidence of
the position's selection criteria, Brice cannot establish that he was
qualified for the position. See Bennett, 295 F.3d at 696.
Brice also cannot show that he was qualified for the auditor position
for which he interviewed in September 1997. First, Brice's evidence on
this issue consists almost entirely of inadmissible hearsay. Second, even
if the testimony could be admitted under an exception to the hearsay
rule, Brice still does not show that he was qualified for this position.
Brice claims that manager Patricia Caldwell told him that the Audit
Department was looking for "people with bank knowledge." Brice argues
that he met this generic selection criteria, and that his rejection was
one-sided evaluation of his qualifications, however, is
insufficient to create a genuine issue of fact. Rabinovitz, 87
F.3d at 487.
Furthermore, after he was rejected, Adriane McCoy of the Audit
Department allegedly told Brice that the decision had been made to pull
back the original posting for the auditor positions and make them entry
level positions such that Brice would no longer be suited for them. McCoy
stated that the successful candidates were all "fresh out of college,"
and Brice does not know what grade levels were given to the individuals
ultimately selected for auditor positions. Michelle Brown in Human
Resources, however, allegedly told Brice that he was qualified for the
position, and she attempted to find out why he did not receive the
position by contacting the hiring manager, Bob Casey. According to
Brice's double hearsay testimony, Casey told Brown that Brice "didn't fit
in," without further explanation. Brown's isolated statement about
Brice's qualifications for the auditor position, without more, is
insufficient to create a genuine issue of material fact. Because Brice is
unable to prove that he was qualified for the auditor position, he cannot
meet this prong of the prima facie case of discrimination,
3. Did the Bank treat similarly situated employees outside of
the protected class more favorably?
Brice also cannot meet this prong of the prima facie case for
his failure to promote and wage discrimination claims because he cannot
prove that he was similarly situated to Van Nest or Barfels, and Brice
does not know the qualifications of the successful candidates for the
auditor position. As explained above, the plaintiff must show that the
employees' "comparables" are similarly situated in all respects,
including job title, grade, performance, qualifications, experience, and
seniority. Spath, 211 F.3d at 397; Radue, 219 F.3d at
617-18. "[P]ersons who do not have the same or
equivalent positions are not similarly situated with respect to a
potential promotion." Grayson, 317 F.3d at 749. Brice admits
that he and Van Nest did not hold similar positions prior to Van Nest
receiving the promotion; Van Nest was an Accountant C (grade level
unknown), and Brice worked at a lower level as a grade seven Processor.
In addition, Van Nest had superior work experience to Brice. Prior to the
Reserve Bank, Van Nest had six years full-time and four years part-time
work experience performing accounting functions with various supervisory
experience. By contrast, prior to the Bank, Brice had worked part-time
for four years as a budget analyst, with no supervisory responsibilities.
Therefore, Brice has not established that Van Nest was similarly situated
In addition, Brice does not show that he and Barfels were similarly
situated. First, Brice has produced no evidence that he and Barfels held
the same or equivalent positions before Barfels became supervisor. Brice
claims that his qualifications are shown because after Barfels joined the
Interdistrict Accounting group, Brice spent three months training Barfels
in his duties before he became supervisor. Brice, however, does not state
in what or how much he trained Barfels. In addition, Brice admits that he
knows nothing about Barfels' educational background, qualifications, work
experience, job grade, or work performance. Because Brice lacks this
information, he cannot establish that he and Barfels were similarly
situated prior to the time Barfels became a supervisor.
Finally, Brice also cannot show that he and the successful candidates
for the auditor positions were similarly situated. Brice admitted that he
knew the successful candidates were "fresh out college," but when the
auditor positions were filled in September 1997, Brice had been with the
Bank for over a year and out of college for four years. Furthermore,
Brice testified that he knows nothing of the successful candidates'
employment history or qualifications. For one of the successful
candidates, Brice points to an exhibit entitled "Data for Brian Cahoon,"
which has no identifying
Bates Number or other authenticating information. Even if the Court
were to rely on this inadmissible document, it only shows that Cahoon
worked as an intern at the Bank and had earned a Bachelor's Degree prior
to working in the Audit Department. This information is insufficient to
show that Brice had comparable work experience, and was thus similarly
situated, to Cahoon or any of the other candidates who received the
auditor positions. For these reasons, Brice is unable to establish this
prong of a prima facie case of discrimination.
E. Charles Carson
1. Did Carson suffer an adverse employment action?
Carson alleges that on two occasions the Bank decided not to promote
him based upon racial animus. Carson also asserts that he was discharged
due to discrimination based on race, disability, and retaliation for
filing this lawsuit. Carson, however, did not amend his complaint to
include allegations of disability discrimination and retaliation, so the
Court will not address these issues.
a. Failure to promote
Carson claims that the Bank failed to promote him on two occasions
based upon his race. In the Seventh Circuit, in order to demonstrate that
a failure to promote was an adverse employment action, the plaintiff must
show that he was rejected for the position which he sought.
Gorence, 242 F.3d at 765; Johnson, 260 F.3d at 732.
Carson's first claim surrounds his promotion from grade ten to grade
eleven on August 25, 1997. Carson argues that he should have been
promoted earlier. Carson compares himself to Sue Seeger, a Caucasian
woman, who was promoted to grade eleven in April or May 1997. Carson,
however, did not apply for or request this promotion prior to Seeger's
promotion. Instead, after Seeger's promotion, Carson requested a
promotion from Vice President Tom Mossimoto. A month or two after his
request, Carson received his promotion.
Carson's claim of failure to promote fails because he was not rejected
for the position which he sought. Instead, Carson demonstrates that he
requested a promotion and received the promotion within two months.
Moreover, a mere two-month pay differential is not sufficient to
constitute an adverse employment action. "[C]ommon sense and the examples
used in the statute's principal section, 42 U.S.C. § 2000e-2(a),
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). The small amount of money at issue in this case hardly amounts to
a "significant change in employment status." Gulley v. Am. Trans Air,
Inc., No. 02 C 3616, 2003 WL 22159470, at *5 (N.D. Ill. Sept. 18,
Carson also claims that the Bank failed to promote him to the Server
Group when he applied for a position with the group in 2000, Carson did
not receive the position in the Server Group, and the position was given
to Debbie Deema, a Caucasian woman. As Carson's application was rejected,
he has sufficiently shown that he suffered an adverse employment action.
b. Wrongful termination
In addition, Carson alleges that he experienced an adverse employment
action when the Bank terminated his employment on November 19, 2002.
According to the Seventh Circuit, a materially adverse employment action
might include a termination of employment. Crady, 993 F.2d at
136. Carson has thus sufficiently alleged an adverse employment action
2. Was Carson qualified for the job or meeting the Bank's
a. Failure to promote
The Court will address only the surviving failure to promote claim,
that of Carson's rejected application to the Server Group. The Seventh
Circuit requires that in a failure to promote claim, the
plaintiff establish that he or she was qualified for the position
sought. Gorence, 242 F.3d at 765; Johnson, 260 F.3d at
732. The Bank argues that Carson has not shown evidence of the necessary
qualifications for the position with the Server Group, and thus that
Carson cannot demonstrate that he was qualified for the position. The
evidence on record indicates that the position with the Server Group was
classified as a grade fourteen or fifteen. At the time Carson applied for
the position, he was working at a grade twelve position. Carson was told
by Cindy McCullogh, an employee from Human Resources, that he did not
have enough experience for the higher level position. Carson argues that
he had the requisite experience and qualifications, but his only evidence
is his testimony that he attended classes to earn a certification in
Microsoft Windows NT.
Even if Carson had somehow shown that this certification was a
criterion for a position with the Server Group which he did not
Carson does not show that it was a sufficient criterion for the
position because he does not allege what the qualifications for the
Server Group positions were. In addition, Carson's own, unsubstantiated
testimony that he was qualified is not enough to establish a genuine
issue of material fact. Dunn, 260 F.3d at 787. An employee's
opinion of his own work performance does not tell a reasonable
fact-finder anything about the employer's perception of the employee's
abilities. Olsen v. Marshall & Ilsley Corp., 267 F.3d 597,
602 (7th Cir. 2001). Without evidence of the qualifications for the
Server Group position, Carson's self-evaluation cannot establish that his
technical course work and related experience qualified him for a position
with the Server Group. Therefore, Carson has failed to prove a prima
facie claim of discrimination based on a failure to promote him to
the Server Group.
b. Wrongful termination
Carson claims that the Bank terminated his employment on November
19, 2002, because of his race. The Bank, however., argues that Carson was
terminated for violation of the Bank's Code of Conduct by failing to
respond to the Bank's requests for the repayment of thousands of dollars
of alleged personal calls billed to Carson's Bank-issued cellular phone.
As explained above, in order for Carson to establish a prima
facie case of wrongful termination based on racial discrimination,
he must demonstrate that he was "performing his job satisfactorily enough
to avoid discharge absent racial bias." Cowan, 123 F.3d at 445.
In Cowan, the Seventh Circuit found that the plaintiff security guard did
not establish that he was performing his job sufficiently to avoid
discharge without racial animus, as his employer had documented several
warnings to the plaintiff about his tardiness. Id. at 442, 445.
Similar to the repeated warnings in Cowan, the Bank tendered
several warnings to Carson, culminating in a final warning that Carson
could be terminated if he failed to resolve the outstanding bill payment.
Carson had requested a cellular phone from the Bank in August 2001, and
he had agreed in writing to use the phone for Bank business and to limit
personal calls to emergencies. In the months of March, April, and May
2002, however, Carson incurred cellular phone bills of $3,174; $1,830;
and $2,115; respectively. Carson admits that he made at least $6000 worth
of personal phone calls on his Bank-issued cellular phone. As a result of
the excessive phone calls, the Bank suspended Carson for three weeks in
July 2002. On September 5, 2002, the Bank sent a memorandum to Carson
demanding that Carson make arrangements to repay the phone charges by
October 15, 2002. Carson failed to respond to the Bank by this deadline,
and the Bank sent another memorandum requesting repayment and extending
the deadline to October 28, 2002. Carson replied
that his attorney, Ernest Powell, would resolve the matter with the
Bank. In response to a request by Powell for more information about the
repayment, the Bank sent Powell a letter indicating that: (1) the phone
bills constituted a serious violation of the Bank's Code of Conduct; (2)
as such, an employee could be immediately dismissed from employment; and
(3) the Bank required a satisfactory resolution by November 15, 2002. On
November 19, 2002, after Carson again missed the deadline to make
arrangements for repayment, the Bank terminated Carson for violation of
the Bank's Code of Conduct for failing to respond to the Bank's requests
for the phone bill repayment. Thus, as in Cowan, Carson did not
establish that he was performing his job sufficiently to avoid discharge
absent racial bias, and so he has failed to establish a prima
facie case of wrongful termination.
3. Did the Bank treat similarly situated employees outside of
the protected class more favorably?
Carson has also failed to demonstrate this prong of the prima
facie case because: (1) he did not show that the employee who
ultimately received the promotion for which he was rejected was similarly
situated to him in all respects; and (2) he did not allege that any
non-African-American employees were not or would not be terminated for
violating the Bank's Code of Conduct as he did.
D. Legitimate non-discriminatory reasons and pretext
Under the McDonnell Douglas test, if the plaintiff establishes
a prima facie case of discrimination, the employer is required
to articulate a legitimate, non-discriminatory reason for its employment
action, and if the employer satisfies its burden of production, the
burden returns to the employee to show that the employer's proffered
reason is pretextual, that is, that race more likely motivated the
employer. Johnson, 260 F.3d at 731 32. The Court need
not reach the issue of pretext
because Plaintiffs have failed to make out a prima facie
case of discrimination. However, even if Plaintiffs had stated a
prima facie case, the Bank has set forth legitimate,
non-discriminatory reasons for its actions that Plaintiffs are unable to
The Seventh Circuit holds that the employer need only supply an honest,
non-discriminatory reason for its employment decision, not necessarily a
reasonable one, because "it is not [the Court's] province to second-guess
the business judgment of an employer where, as here, it acted on ample
legitimate justification." Cowan, 123 F.3d at 445-46. See
also Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677,
680 (7th Cir. 1997). In Olsen v. Marshall & Ilsley Corp.,
the court upheld summary judgment for the defendant bank when the
plaintiff did not offer evidence rebutting that the bank honestly
remained dissatisfied with his work performance and there was a factual
basis for the bank's belief that the employee's performance did not meet
its standards. 267 F.3d at 602-03. Plaintiffs have not offered evidence
questioning the honesty of the reasons behind the Bank's decisions, and
the Bank has presented a factual basis for its beliefs that certain
Plaintiffs did not meet performance expectations or the qualifications
for the jobs that they sought. The Olsen court would not compare
the bank's decision to potential treatment by average employers, and
neither will this Court. Thus, Plaintiffs have not proven that the Bank's
non-discriminatory reasons for its actions were a pretext to
VII. Motions To Strike
The Bank has also filed motions to strike several of Plaintiffs'
Rule 56.1 responses and statements of additional facts on the grounds that
certain Plaintiffs inappropriately: (1) attached exhibits that were
unauthenticated or inadmissible hearsay; (2) included narrative
statements after their admissions; (3) failed to include specific
references to affidavits or parts of the record; and (4)
stated that certain facts were "denied," when, in fact, they admitted
them. See Northern District of Illinois Local Rule 56.1;
Fed.R.Evid. 801(c); Fed.R.Evid. 901(b); Bordelon v. Chicago Sch. Reform
Ed. Of Trustees, 233 F.3d 524, 527-28 (7th Cir. 2000); Midwest
Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995);
Friedel, 832 F.2d at 970; Martz v. Union Labor Life
Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985). These motions are moot
because the Court has found that Plaintiffs each failed to present a
prima facie case of discrimination even in light of the
responses and statements of additional fact that failed to conform to
Local Rule 56.1. As such, the Court would grant the Bank's summary
judgment motions regardless of the motions to strike.
Due to the foregoing analysis, this Court finds no genuine issues of
material fact have been raised by Daniels, Matthews, Dixon, Brice, or
Carson, and the Court GRANTS summary judgment in favor of the Reserve
Bank with respect to each of these Plaintiffs.
IT IS SO ORDERED.