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STERN v. CINTAS CORPORATION

March 23, 2004.

STACEY STERN, Plaintiff,
v.
CINTAS CORPORATION, Defendant



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

From 1990 until November 2001, Plaintiff Stacey Stem ("Stern") was employed by Defendant Cintas Corporation ("Cintas"), a national provider of corporate identity uniforms, first in a sales position and later in a supervisory role. She filed this action in August 2002, alleging discrimination because of sex and pregnancy and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII"), and the Civil Rights Act of 1991, 42 U.S.C. § 1981 a. Specifically, Stern alleges that Cintas failed to reassign her to the more secure non-supervisory position she held initially, failed to make her eligible for a bonus, gradually removed her job responsibilities, and ultimately terminated her employment based on her gender and pregnancy and in retaliation for her complaints of discrimination to Cintas, to the U.S. Equal Employment Opportunity Commission ("EEOC"), and to the Illinois Department of Human Rights ("IDHR"). Cintas now moves for summary judgment. For the reasons stated below, Cintas's motion is granted in part and denied in part.

FACTUAL BACKGROUND

 I. Plaintiffs Employment History Prior to Alleged Discrimination

  In October 1990, Plaintiff Stern began working for Uniforms to You ("UTY") as a National Page 2 Account Executive*fn1 ("NAE") in UTY's National Account*fn2 Sales Division (the "NAS Division"). (Def.'s 56.1*fn3 ¶ 3.) In this position, Plaintiff was responsible for sales to certain national accounts; she also had some responsibility for managing National Sales and Service Coordinators ("NSSCs"), i.e., sales support personnel responsible for maintaining existing accounts but having no sales responsibilities. (Stern Dep., at 43.) In 1991, William Riesner ("Riesner") began working for UTY as a District Sales Representative in the company's New York City office. (Ex. P to Pl.'s 56.1,*fn4 at 1; Riesner Dep., at 8-9.) A year later, he was promoted to District Sales Manager. (Ex. P to Pl.'s 56.1, at 1.) After approximately 16 months, he "was promoted to a key territory,"*fn5 and about a year later, was promoted again to regional manager. (Riesner Dep., at 9.) In April 1997, Riesner became Director of National Accounts and moved to UTY's Chicago office.*fn6 (Ex. P to Pl.'s 56.1, at 1.) In this role, he was responsible for the business of the NAS Division as well as supervision of four NAEs (not including Plaintiff) and an unspecified number of NSSCs. (Id. at 2; Def.'s 56.1 ¶ 17.) Page 3

  In approximately November 1997, Defendant acquired UTY. (Def.'s 56.1 ¶ 28; Pl.'s 56.1 ¶ 67.) Riesner was promoted to Vice President of National Accounts approximately six months later and, on an unspecified date between January 1, 1999 and April 15, 1999, Riesner became Plaintiffs supervisor. (Def.'s 56.1 ¶¶ 7, 8; Stern Dep., at 17; Ex. D to Def.'s 56.1; Riesner Dep., at 9.) Plaintiff took maternity leave from April 15, 1999 to August 2, 1999 to give birth to her first child. (Ex. D to Def.'s 56.1; Stern Dep., at 36-37.) Plaintiff returned from leave as a full-time NAE working three days per week in the office and two days per week from home or on the road, and was eligible to participate in the National Accounts bonus plan for fiscal year 2000.*fn7 (Ex. D to Def.'s 56, 1; Stern Dep., at 37.)

  On June 1, 2000, Plaintiff was promoted to Manager of National Account Services, in which she retained responsibility for an unspecified number of sales accounts and began supervising all of the NSSCs and providing general assistance to Riesner with his management duties, including serving as the point of contact for the nearly 60 employees whom Riesner supervised, as Riesner spent most of his time "on the road." (Def.'s 56.1 UK 15, 22; Pl.'s 56.1 ¶ 71; Ex. P to Pl.'s 56.1, at 3; Stern Dep., at 76.) Plaintiff testified that Michael DiMino ("DiMino"), President of the NASD and Riesner's supervisor, made the decision that Plaintiff would manage the NSSCs, as "the company philosophy was that [the NSSCs] needed to be. . . . more operationally oriented,' i.e., they needed to focus "more on booking orders, getting orders out of the warehouse, [and] forecasting strategy.' (Stern Dep., at 34-35.) Plaintiff did not accept supervision of the NSSCs "with great enthusiasm." (Id. at 34.) As Plaintiff "did not have an operational background," she recommended that Defendant place Debbie Zwartz ("Zwartz"), who was then in Distribution in Defendant's warehouse and whose "forte" was assertedly operational areas, in charge of managing the NSSCs. (Id. at 34-35, 90.) Page 4

  In February 2001, Defendant did transfer supervision of the NSSCs to Zwartz, who was then pregnant, and promoted Zwartz to the same position and title Plaintiff had, that of Manager of National Account Services, reporting to Riesner.*fn8 (Def.'s 56.1 ¶ 16.) The court infers from the record that Zwartz had no other duties aside from managing the NSSCs. (See, e.g., Ex. P to Def.'s 56.1, at 3.) After Zwartz's promotion, Plaintiff "continued to have involvement with management" of the NSSCs and to assist Riesner with his management duties. (Def.'s 56.1 ¶ 17.) Plaintiff also managed three NAEs-Mike Olszak, Lesley Moss, and Dan O'Brien. (Id., ¶¶ 17-18.) In addition, Plaintiff assisted with recruiting, hiring, and training, which "became an increased part of her responsibility." (Id. ¶ 17; Pl.'s 56.1 ¶ 75.) Although Zwartz had no sales responsibilities, (Pl.'s 56.1 ¶ 16), there is no mention in the record that Plaintiff had any sales responsibilities after February 2001 either.

  Following Zwartz's promotion, Plaintiff was concerned about her job security as she felt that her title-Manager of National Account Services-no longer accurately reflected her duties. From February 2001 until her termination in November 2001, therefore, Plaintiff "continually" requested Riesner to make her a NAE again by volunteering to give up her management responsibilities and working on new and existing client accounts. (Def.'s 56.1 ¶ 23; Pl.'s 56.1 ¶ 76; Stem Dep., at 86-87.) Although Plaintiff recognized that returning to a NAE role would have been "a step down in a way," she believed such a move "would have been the most secure thing to do." (Stem Dep., at 88.) Riesner initially responded to her requests by stating that he would be "slitting his own wrists" if he moved her into a different position, as he could not run the department without her. (Def.'s 56.1 ¶ 21; Stem Dep., at 79, 87.) On a date not specified in the record, Plaintiff asserts, Riesner told her that he would make her a NAE again "[e]ven though it would kill him." (Stern Dep., at 87.) Plaintiff added, "I know now from seeing my personnel file that he did put through the Page 5 paperwork to have my title changed." (Id.) For reasons not explained in the record, Defendant did not make Plaintiff a MAE after February 2001. (Def.'s 56.1 ¶ 23; Pl.'s 56.1 ¶ 76.)

  In May 2001, Plaintiff told Riesner that she was pregnant with her second child and was due to give birth in late December. (Def.'s 56.1 ¶ 24; Pl.'s 56.1 ¶ 78.) In June 2001, William Cronin ("Cronin"), replaced DiMino as President of the NAS Division and Riesner's supervisor. (Def.'s 56.1 ¶ 10.) Cronin testified that, when he became President of the NAS Division, there were no female NAEs in Defendant's national headquarters in Cincinnati, Ohio. (Cronin Dep., at 16.) In a July 1, 2001 memo to Cronin describing the structure of the NAS Division and evaluating Division personnel by rank, Riesner conveyed Plaintiff's desire to return to a sales position, describing her skills as follows:
She was a very strong NAE. . . . She was one of the best at maintaining her accounts, keeping them clean and rolling out new programs. She knows the system very well. She did not want to travel as much so I felt it was time to elevate her to manage the NSSCs and help with roll outs and special projects I assign to her. This has been one of the best moves. She has excelled in this role, and has accepted any challenge or role given to her. She has provided some relief as identified earlier. We need to make sure she does not go anywhere. She may be a better fit in the sales role going forward, depending on how the National Accounts structure settles out. She has proven she can sell and manage National Accounts in the past. She wants to go back into selling, which I support; however, I am just without any management assistance without her.
(July 1, 2001 Memo from Riesner to Cronin ("Riesner Mem."), Ex. P to Pl.'s 56.1, at 1, 4.) Although Cronin acknowledged receiving this memo, he did not recall reading the portion of the memo evaluating Plaintiff. (Cronin Dep., at 30.)

 II. Evidence of Discrimination-May to November 2001

  A. Riesner's Alleged Statements Regarding Women in Sales Positions

  In May 2001, Plaintiff claims, Maurice Toder (Toder"), who recruited potential sales Page 6 personnel for Defendant,*fn9 told Plaintiff that, prior to May 2001, Riesner had instructed him not to submit applications for sales positions from women because Defendant would not hire women into its sales force. (Pl.'s 56.1 ¶¶ 23, 79; Stern Dep., at 106-07.) To support this contention, Plaintiff cites her own deposition and that of Cynthia McHugh ("McHugh"), a NAE, who testified that Plaintiff told her that Toder told Plaintiff that Defendant told him not to refer female candidates to Defendant for sales positions. (McHugh Dep., at 38-39.) Defendant objects that this assertion constitutes hearsay and is irrelevant. (Def.'s Resp. 56.1*fn10 ¶ 79.) This court has little difficulty with relevance. The hearsay objection is more difficult. As Toder and Riesner were acting as agents of Defendant, however, their statements are admissible under FED. R. EVID. 801(d)(2)(A). McHugh's statement would ordinarily be admissible only if Defendant has suggested that Plaintiffs testimony concerning this matter constituted a "recent fabrication." See FED. R. EVID. 801(d)(1)(B). The court will assume this test is met here, as the Seventh Circuit did in Volovsek v. Wisconsin Department of Agriculture, Trade, and Consumer Protection, 344 F.3d 680, 682 (7th Cir. 2003) ("A male coworker corroborated these allegations, recalling Volovsek's contemporaneous reporting of this incident to him").

  Shortly after Plaintiffs alleged conversation with Toder, Plaintiff claims, when she recommended that Riesner interview a female applicant for a NAE position, Riesner said he was busy with traveling and asked Plaintiff, "why would you waste my time interviewing this girl?' (Pl.'s 56.1 ¶ 80; Stem Dep., at 111.) When she asked him to clarify that statement, Plaintiff asserts, Riesner responded, "you know Cintas doesn't hire women for sales positions. There are no females in the sales force in Cincinnati." (Stem Dep., at 112.) Plaintiff alleged that when she Page 7 asked why there were no women in the Cincinnati sales force, Riesner responded, "they don't view women as being long-term employees." (Id.) When Plaintiff asked why that was so, she claimed, Riesner responded, "well, because they tend to get married and have babies." (Id.) Plaintiff added that Riesner's tone in making this last statement was "kind of . . . conspiratorial." (Id.) According to Plaintiff, Riesner concluded that any female candidate that Plaintiff recommended "had better blow away any male candidate that you have presented to me so far." (Id.) Riesner denied making these statements. (Pl.'s 56.1 ¶ 80.) Plaintiff notes that McHugh recalled Plaintiffs reporting that Riesner directed Plaintiff not to refer female candidates to Defendant for national account sales positions. (McHugh Dep., at 38.) Defendant again objects on hearsay grounds, (Def.'s Resp. 56.1 ¶ 80); as Riesner was acting as an agent of Defendant, however, his statement is admissible under FED. R. EVID. 801(d)(2)(A), while McHugh's statement would be admissible only if Defendant asserts that Plaintiffs testimony concerning this matter is a "recent fabrication."*fn11

  B. Lack of Performance Review and Bonus Participation

  Although the record does not provide the date of Plaintiffs last performance review, it is undisputed that she did not receive a performance review from June 2001 until her termination in November. Plaintiff contends that she was due for a performance review by June 2001. (Def.'s 56.1 ¶ 25.) Defendant notes that, as of the end of October 2001, 11 male and nine female MAS Division employees, including Plaintiff, were past due for their performance reviews, (id. ¶ 26), but Plaintiff asserts that of these 20 employees, she alone had sales responsibilities. (PI. `s 56.1 ¶¶ 25-26.) Defendant points out that, throughout her employment, Plaintiffs performance was reviewed Page 8 sporadically and not always on an annual basis. (Def.'s 56.1 ¶ 5; Pl.'s 56.1 ¶ 68.) In any event, Plaintiff presents no evidence that her lack of a performance review led to any adverse actions being taken against her.

  Plaintiff, along with 19 male and eight female NAS Division employees, were not eligible to participate in Defendant's bonus plan. (Def.'s 56, 1 ¶¶ 50-51.) Plaintiff notes that all of Riesner's subordinates who had sales responsibilities, other than Plaintiff, however, were eligible for a bonus in 2001. (Pl.'s 56.1 ¶¶ 50-51.) The record does not indicate who made the decision to exclude Plaintiff from bonus eligibility or why such decision was made.

  C. "Forced Rankings" and Organizational Charts

  Beginning in February 2001, as part of an impending reorganization of the company and in connection with plans to reduce the company's work force, Defendant required the head of each department to perform a "forced ranking" of employees into "A," "B," and "C" categories. (Stem Dep., at 76-77.) Plaintiff assisted Riesner with ranking the NAS Division employees into "A' and "C" categories and with rank-ordering them within each category.*fn12 (Id.) Initially, Riesner ranked McHugh fifth in sales behind four male NAEs. (Stem Dep., at 125-26, 130.) According to Plaintiff, however, McHugh's "performance to plan" numbers indicated she was the "top sales person" in the NAS Division. (Stern Dep., at 125-26, 130.) Based on Riesner's earlier alleged statement that Defendant's Chicago sales team needed more closely to reflect the Cincinnati all-male sales force, Plaintiff surmises that Riesner must have placed McHugh fifth in part because of his belief that Cronin would have wanted to see men in the top positions.*fn13 (Id.) In an October 18, 2001 letter to Defendant's Chief Executive Officer, discussed below, Plaintiff's attorney indicated that, before Page 9 Riesner provided these rankings to Cronin, McHugh "made an excellent presentation to [Cronin], qualified for the President's Club Awards, and out-performed all of her male counterparts."*fn14 (Ex. K to Def.'s 56.1, at 3 (emphasis original); Stern Dep., at 129, 179.) After McHugh's presentation, Plaintiff contends, Riesner instructed Plaintiff to change McHugh's ranking to second, even though McHugh's numbers had not improved since Riesner had placed her fifth. (Ex. K to Def.'s 56.1, at 3; Stem Dep., at 129-30, 132, 179.) McHugh testified that she first learned that she was initially ranked fifth from a document titled "Ranking of National Account Team"*fn15 that she saw sitting on the desk of Riesner's assistant, Kathy Laiter, and that she was "frustrated" as she believed she should have been ranked second based on her sales performance in 2001. (McHugh Dep., at 16-18; Stern Dep., at 122.) When asked whether she believed this ranking was because of her sex, however, McHugh said, "No." (McHugh Dep., at 18-19.) Defendant does not dispute these assertions.*fn16

  In his July 1, 2001 memo to Cronin describing the structure of the NAS Division and evaluating Division personnel by rank, Riesner ranked eight NAEs on his team as "A's" and two as "C's." (Riesner Mem., at 4-5.) Specifically, (1) Ken Moore, (2) Cynthia McHugh (a female), (3) Dan D'Angelo, (4) Mike Olszak, (5) Sandra DiVito (a female), (6) Troy Overboe, (7) Jeff Jarvis, and (8) Dan O'Brien were ranked as "A's," and (1) Lesley Moss (a female) and (2) Don Richter were ranked as "C's." (Id.) In the memo, Riesner stated that he was "in the process of weeding out the C Page 10 players," (id., at 2); Plaintiff testified that "[a]t some point the decision was made that there was no room for the C players and that those players would be eliminated based on either performance and counseling or . . . at a more massive layoff." (Stem Dep., at 76.) Plaintiff claims that, in July or August 2001, she "complained to Riesner that women were being discriminated against in the employee performance ranking process that was then underway," and that she "complained about [D]efendant's discriminatory treatment of Cindy McHugh."*fn17 (Pl.'s 56.1 ¶ 88; Stern Dep., at 125-30, 178.)

  D. Golf Outings

  During the summer of 2001, Riesner invited NAS Division employees to participate in golf outings during work hours and while on the road. (Def.'s56.1 ¶ 56; Pl.'s 56.1 ¶ 85.) Although most of the invitees appear to have been male employees, the parties agree that Riesner did not invite every male employee, and that the outings occasionally included women. (Def.'s 56.1 ¶ 56; Pl.'s 56.1 ¶ 56.) Riesner testified that these outings occurred "very, very infrequently." (Riesner Dep., at 124.) Plaintiff, who acknowledges that she does not play golf, claims that these outings were not infrequent nor did they include female employees "in any meaningful or appropriate business manner," citing her own deposition and affidavit in support. (Def.'s 56.1 ¶ 56; Pl.'s 56.1 ¶ 56.)

  On an unspecified date in the summer of 2001, Plaintiff asserts, one of her subordinate NAEs, Mike Olszak ("Olszak"), allegedly missed two morning customer meetings without first notifying Plaintiff, requiring Plaintiff to cover for him. (Pl.'s 56.1 ¶ 86-87.) When she confronted Olszak that afternoon about his absence, Plaintiff claims, he told her that he had been playing golf with Riesner, and that Riesner had told him not to tell Plaintiff about the golf outing. (Stem Dep., at 123.) According to Plaintiff, when she complained to Riesner about what Olszak had said, Riesner at first denied that he and Olszak had been golfing. (Pl.'s 56.1 ¶ 87.) When Plaintiff Page 11 informed Riesner that Olsazk himself had told her about the outing, Plaintiff claims, Riesner became defensive and said he was entitled to play golf because he worked "like a dog." (Stem Dep., at 124.) According to Plaintiff, Riesner then told Plaintiff she "could take the ladies to get their nails done if [she] wanted." (Id.) After Plaintiff told Riesner that she had almost written up "one of our top sales executives" because he had not called in, Riesner apologized. (Id.) Plaintiff cites only her own deposition to support these assertions, which Defendant does not dispute. (Pl.'s 56.1 ¶ 87; Def.'s Resp. 56.1 ¶ 87.)*fn18

  Plaintiff testified that her treatment by Defendant and her relationship with Riesner "deteriorated" following her complaints to Riesner regarding the golf outings, forced rankings, and treatment of Plaintiff and "other women in the company." (Stem Dep., at 177-78.) Specifically, Plaintiff claimed that she suffered "[c]ontinued denial of my title, my raise, perhaps . . . a bonus plan" and that Riesner stopped telling her that he was trying to persuade Cronin to make her a NAE. (Id. at 180-81.)*fn19 Defendant does not contest these assertions. (Def.'s Resp. 56.1 ¶ 89.)*fn20

  Between February and July 2001, Plaintiff contends, her name "stopped appearing on proposed organizational charts circulated in connection with [the] reorganization." (Pl.'s 56.1 ¶ 84; Stern Dep., at 52.) When Plaintiff asked Riesner and Cronin why her name was omitted from these charts, she claims, they told her that she "shouldn't worry about ...


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