United States District Court, N.D. Illinois
April 21, 2004.
SUSAN TORAIN, Plaintiff,
DELTA-T GROUP ILLINOIS, INC., an Illinois Corporation, and DELTA-T GROUP, INC., a Pennsylvania Corporation, Defendants
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Susan Torain ("Torain"), brings this action against
defendants, Delta-T Group Illinois, Inc., an Illinois Corporation, and
Delta-T Group, Inc., a Pennsylvania Corporation (collectively "Delta-T")
alleging (1) race discrimination; (2) gender discrimination; and (3)
retaliation, all under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-1 et seq.*fn1 Torain's First Amended Complaint also
contains a claim for violation of the Illinois Wage Payment and
Collection Act, 820 ILCS 115/1 et seq., over which this court has
jurisdiction pursuant to 28 U.S.C. § 1367. Before the court is Delta-T's
motion for summary judgment. For the reasons set forth below, the motion
SUMMARY JUDGMENT STANDARDS
Summary judgment obviates the need for a trial where there is no
genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether
any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to
interrogatories, admissions, and affidavits that are part of the record.
Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking
summary judgment bears the initial burden of proving there is no genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), In response, the nonmoving party cannot rest on bare pleadings
alone but must use the evidentiary tools listed above to designate
specific material facts showing that there is a genuine issue for trial.
Id at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir.
2000). A material fact must be outcome determinative under the governing
law. Insolia., 216 F.3d at 598-99. Although a bare contention that an
issue of fact exists is insufficient to create a factual dispute,
Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court
must construe all facts in a light most favorable to the nonmoving party
as well as view all reasonable inferences in that party's favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS STATED IN A LIGHT MOST FAVORABLE TO
Delta-T Group, Inc. is a Pennsylvania corporation engaged in the
business of temporary staffing. (Def. L.R, 56.1 ¶ 1.) Delta-T Group,
Illinois, Inc., is an Illinois corporation specializing in staffing the
behavioral health, mental health and social work industry. (Id.)
Delta-T Group, Inc. and Delta-T Group, Illinois are related by common
ownership. (Def. L.R. 56.1 ¶ 2.) Delta-T Group, Inc. also maintains
oversight management for all of its nationwide branch offices and
affiliates, including Delta-T Group, Illinois. (Pl. Resp. to Def, L.R.
56.1 ¶ 2.) Torain is an African-American female who was hired to work
for Delta-T Group, Illinois in March 2001 as a staffing coordinator.
(Def. L.R. 56.1 ¶¶ 3, 5.) At the beginning of her employment Torain received copies of the
Delta-T Group Employee Manual, communications policy, and File Completion
and Credentialing Policy. (Def. L.R. 56.1 ¶¶ 10-13.) Torain agreed to be
bound by all of these policies. (Id.) In March 2001 she also entered into
an Employment Agreement with Delta-T which stated, in pertinent part,
that "Employee further agrees and promises to comply with and carry out
those verbal directives that may be given to them by persons to whom
Employee is accountable or who possess superior organizational
jurisdiction over their position." (Def. L.R. 56.1 ¶ 13.) All of the
following Delta-T employees had superior organizational jurisdiction over
Torain: Michael Martin ("Martin"), who served as Affiliate Administrator
and was Torain's direct supervisor; Pat Graff ("Graff'), Regional
Affiliate Administrator and Martin's supervisor; Joanne McAndrews
("McAndrews"), Company President; Marlina Von Rohr ("Von Rohr"), Director
of Human Resources; and Rachana Patel ("Patel"), General Counsel. (Def.
L.R. 56.1 ¶¶ 6-9.)
Torain's duties as a staffing coordinator included processing and
filling job orders, executing bulk scheduling, providing customer
services to clients and contractors, administering new contracts,
conducting file completion activities, administering new contractor
interviews, and providing weekend and on-call services. (Def. L.R. 56.1
¶ 23.) File completion, documentation and Credentialing were all
essential job duties for Torain and all other staffing coordinators.
(Def. L.R. 56.1 ¶ 25.)
Torain's first performance review in her job was a "two-week follow-up"
dated March 30, 2001. (Def. L.R. 56.1 ¶ 27.) This review rated Torain as
"needs improvement" in the category entitled "Following Department Rules
& Procedures." (Id.) On May 22, 2001, Torain received a written
reprimand for staffing a contractor without any references during April
2001, which violated Delta-T's File Completion policy. (Def. L.R. 56.1 ¶ 29.)
On June 1, 2001, Torain received her forty-five (45) day performance
review. (Def. L.R. 56.1 ¶ 30.) This review rated Torain as "needs
improvement" in the following categories: (1) "displays understanding of
the importance of customer service"; (2) "implements management
direction"; (3) "providing self direction"; and (4) "following department
rules and procedures". (Def. L.R. 56.1 ¶ 30.)*fn2 This performance
evaluation also specifically noted that Torain needed to improve her
"file completion," "follow through" and "organization." (Id.)
Torain received a number of other disciplinary notices thereafter,
On July 24, 2001, Martin issued written discipline
and counseling for Torain's failure to correctly
fill out the Week-to-Week Tracking Log for the
weekend of July 20-23. (Def. L.R. 56.1 ¶ 32.)
On August 14, 2001, Torain received a written warning
for continuous violations of file completion and
documentation policies, specifically for failure to
document conversations with clients and contractors.
This written warning stated that her supervisor,
Martin, would monitor Torain's performance each day to
ensure that all calls and conversations are documented
as they happen, This written warning also expressly
placed Torain on notice that if she continued not to
perform satisfactorily or follow policies and
procedures, she would be subject to additional
discipline including but not limited to discharge,
(Def. L.R. 56.1 ¶ 34.)
On August 20, 2001, Torain was verbally counseled for
failure to properly document calls to clients and
contractors in violation of policies and procedures.
(Def. L.R. 56.1 ¶ 35.)
On August 24, 2001, Martin documented Torain's failure
to properly validate and enter the schedule for J.
Fuentes, Martin stated that he would re-check all of
Torain's September schedules. (Def. L.R. 56.1 ¶ 36.)
Also on August 24, 2001, Torain received a written
"Memorandum for Record" from Martin regarding her
performance deficiencies. (Def. L.R. 56.1 ¶ 37.) Torain was placed on final written warning dated
September 6, 2001 for continued failure to properly
document her communications with clients and
contractors, in violation of company policies and
procedures. The warning described a series of
performance issues and violations. (Def. L.R, 56.1 ¶
Torain received written counseling on September 11,
2001, for violation of the company file completion
policy. (Def. L.R. 56.1 ¶ 40.)
Torain received written counseling on September
17, 2001, for errors committed on weekend "Alpha4"
reports. (Def. L.R. 56.1 ¶ 42.)
These disciplinary measures notwithstanding, Torain points to aspects
of her performance that she believes were impressive. For example, she
testified (1) that she was successful in securing accounts with the
University of Chicago and the Jane Adams Hull House (Pl. L.R. 56.1 ¶¶
11-12); (2) that she "won" accounts with Guardian Angel House and Provena
St. Joseph (Pl. L.R. 56.1 ¶ 13); (3) that she received a "Perfect
Attendance" award for the second quarter of 2001 (Pl. L.R. 56.1 ¶
14); (4) that she was one of only five employees nationwide who won
Delta-T's "Bulk" award (Pl. L.R. 56.1 ¶ 15)*fn3
; and (5) that she
maintained higher billable hours and average spread compared to fellow
staffing coordinator Sean Jensen ("Jensen"), who is a white male. (Pl.
L.R. 56.1 ¶ 16).
Martin testified that he and Graff had scheduled a meeting with Torain
to take place September 18, 2001, in which they would discuss with Torain
her performance since commencement of the final written warning period on
September 6, 2001. (Def. L.R. 56.1 ¶ 45.) Torain, however, had already
obtained approval of a vacation request from September 17, 2001 to September 21, 2001 for her wedding and was apparently not at work on
the 18th. (Pl. Resp. to Def. L.R. 56.1 ¶¶ 45-46.)*fn4 Thus, she did not
attend the meeting. (Def. L.R. 56.1 ¶ 46.)
Nevertheless, although she did not work on September 18, Torain did go
to the office after hours. (Def. L.R. 56.1 ¶ 48.) She signed the
security log and went to the office after nine o'clock at night.*fn5
(Id.) Torain claims that she went to the office at this time to pick up
her wedding bonus. (Pl. Resp. to Def. L.R. 56, 1 ¶ 48.) She acknowledges
signing her arrival in the signature book but claims that she forgot to
sign out. (Id.) Torain's name was signed in the signature book indicating
that she left at 1:30 p.m. (Id.) Torain denies that the signature is
On September 19, 2001, at 9:33 a.m., Patel received an email from
Torain in which Torain cited several specific email communications
between Patel and Martin concerning Torain's performance. (Def. L.R. 56.1
¶ 49.) Some of the cited emails had been sent with `courtesy copies to
various interested persons such as Graff, Von Rohr and McAndrews. (Id.)
Torain was not a party to any of these emails. (Id.) Torain's September
19, 2001 email to Patel directly quoted email communications between
Patel and Martin. (Def. L.R. 56.1 ¶ 50.) One such email was sent 16
hours earlier, at 5:22 p.m. on September 18, 2001. (Id.) Torain also
quoted other emails dated September 6, 10, 12, 17 and two from September
18. (Id.) Torain's performance was the subject of these email communications but, as noted
above, she was never a party to them. (Id.)*fn6
Although Torain never reported to anyone at Delta-T that she received
copies of these emails (Def. L.R. 56.1 ¶ 58), in her deposition she
testified that she received the emails anonymously on the night of
September 18, 2001. (Def. L.R. 56.1 ¶ 53.) This is somewhat consistent
with what Torain told investigators with the Equal Employment Opportunity
Commission ("EEOC"). She told EEOC Investigator Andrew Daley that she
received copies of the emails anonymously through the mail. (Def. L.R.
56.1 ¶ 54.) Daley testified that when he asked Torain how she was able
to quote a September 18 email on September 19 if she received copies in
the mail, Torain paused and told him that she received the emails via
Federal Express delivery. (Def. L.R. 56.1 ¶ 55.) In her deposition
Torain denied ever making the claim that the copies were delivered by
Federal Express and stated that the copies were left on her doorstep in
early September. (Torain dep. at 228.) Torain further admitted that it
took her two weeks to read through all of the emails, despite the fact
that she was able to quote one such email only hours after it was
originally sent. (Def. L.R. 56.1 ¶ 57.)
After receiving Torain's September 19, 2001 email, Patel contacted
Martin. At this point Martin had already noticed that his computer had
been turned off, even though he only logged off his computer the night
before. (Def. L.R. 56.1 ¶ 61.) After being contacted by Patel, Martin
also discovered that all of his email communications to Graff, Von Rohr
and/or Patel concerning Torain had been permanently deleted. (Id.) He also discovered that
documents from employees' personnel files were missing. (Id.)
Martin testified that he had previously given Torain his computer
password but had not authorized her to access his email account. (Def.
L.R. 56.1 ¶ 59.) Torain, however, denies ever having Martin's password
or accessing his email account. (Pl. L.R. 56.1 ¶ 24.) Patel testified
that the Delta-T Group Information Services Department confirmed that
someone accessed Martin's computer on the evening of September 18, 2001,
apparently from an off-site location. (Pl. Resp. to Def. L.R. 56.1 ¶ 60.)
On September 19, 2001, another meeting was scheduled for Torain with
Martin, Graff, Von Rohr and Patel. (Def. L.R. 56.1 ¶ 62.)*fn7 Martin
called Torain into his office for what would be a conference call
meeting. (Torain dep. at 230.)*fn8 The conference call was to include
Graff, Patel and Von Rohr. (Def. Ex. H at 000239.) Torain refused to
enter Martin's office or talk to the people on the phone. (Torain dep. at
230-31.) In her deposition Torain stated that
Mike came to my desk and said that Rachana's on.
I said, "I already told you before, according to my
e-mails, that I do not want to talk to them." He
said, "If you don't get on the call, they're going
to fire you." I said, Then Mike, you need to do
your job and fire me."
(Torain dep. at 230-31,) Since Torain would not attend the conference call meeting in Martin's
office, a call was placed to her by Patel, Von Rohr and Chris McAndrews,
Delta-T's Executive Vice President. (Def. Ex. H, 000242.; Graff dep. at
83.) Torain's deposition details the rest of the phone conversation:
Q: And you were asked, on the 19th, how it was you
came to receive the e-mails that you had quoted in
your September 19th e-mail to Rachana, right?
Q: And you did not tell anyone that you received
A: I didn't say anything on the telephone call.
Q: You did not tell them that you received the
A: Correct, I didn't say anything on the call.
Q: This is a yes or no.
Q: So you did not tell them that you received them
Q:-that's correct, right?
A: That is correct.
Q: And at some point you received a call at your
desk from these individuals, right?
A; Yes, I did.
Q: Tell me what was said in that conversation.
A: They just said as of a particular time-1 don't
recall the time-you will be terminated. I said,
Q: That's it?
A: That's it that I recall.
(Torain dep. at 232-33.)*fn9
Torain admits that she never told anyone at
Delta-T how she came into possession of the private emails between Martin
and Patel. (Def. L.R. 56.1 ¶ 64.)
There is some confusion in the record as to the exact reason why Torain
was fired. Martin testified that Torain was fired for "[f]ailure to
comply with company standards" and specified that issue of the emails had "no relevance to her termination."
(Pl. Resp. to Def. L.R. 56.1 ¶ 65 (citing Martin dep. at 60, 67).) Patel
and McAndrews, however, both clearly stated that Torain was terminated
for refusing to participate in the September 19, 2001 meeting and for
unauthorized access to and misappropriation of company emails. (Def.
L.R. 56.1 ¶ 65.) Moreover, in a September 19, 2001 letter from Patel to
Torain memorializing Torain's termination in writing, Patel once again
clearly states that Torain was fired for not taking part in the September
19 meeting and for refusing to tell how she accessed her supervisor's
email account. (Def. Ex. K at 000776.)
Torain claims that she was treated differently from other employees
based on her race and/or sex in a number of regards. First, she claims
that she was regularly given "priority lists" during her job while others
were not. (Def. L.R. 56.1 ¶ 74.) A priority list is a list of tasks to
be accomplished. (Id.) It is normally prepared by a supervisor in order
to help a staffing coordinator meet the employer's expectations and to
bring him or her to the acceptable level of proficiency. (Id.) Torain
also alleges that she was required to meet regularly with Martin and/or
Graff even though she believes other staffing coordinators did not have
to do so. (Def. L.R. 56.1 ¶ 80.) In addition, Torain testified that
Martin and/or Graff accompanied her on client visits, but they did not
escort other staffing coordinators on such visits. (Def L.R, 56.1 ¶ 88.)
Moreover, she contends that Steve McArtin ("McArtin"), Wage & Benefits
Administrator, discriminated against her because she had to follow-up
with him to get her wedding bonus. (Def. L.R. 56.1 ¶ 94.) She received
this bonus on September 18, 2001, three days after her wedding. (Def.
L.R. 56.1 ¶ 95.) Torain believes that this was not quick enough and that
she did not receive the bonus sooner because McArtin is Caucasian. (Def.
L.R. 56.1 ¶ 96.) She points out that Jensen received his wedding bonus one month before his wedding. (PL L.R. 56.1 ¶
22.) Torain also claims that Martin "possibly" deleted entries from her
computer database because of her gender and race. (Def. L.R. 56.1 ¶
Torain further complains of discrimination by various members of
Delta-T's staff. She testified that on two or three occasions Graff stood
very close to her desk and watched her working over her shoulder based
solely on Torain's race and sex. (Def. L.R. 56.1 ¶ 98.) Torain also
testified that Graff stated in May 2001 that Torain was a "skinny little
black girl" and in June or July 2001 Graff said "something to the effect"
of "skinny little black girl." (Def. L.R. 56.1 ¶ 100.)*fn10 Torain
alleges that Patel discriminated against her by recommending that Martin
discipline Torain for poor performance. (Def. L.R. 56.1 1 ¶ 12.) Torain
also alleges that Patel retaliated against her by telling Martin to write
her up. (Def. L.R. 56.1 ¶ 123.) For McAndrews, Torain alleges that she
was treated less favorably based on her race and sex because McAndrews
failed to respond to an email and failed to "follow up." (Def. L.R. 56.1
¶ 114.) Torain complains that Von Rohr treated her less favorably based
on her race/sex because Von Rohr failed to do anything after Torain
complained to Von Rohr. (Def. L.R. 56.1 ¶ 116.)
Before addressing Torain's claims, the court must clarify a few points.
First, on January 20, 2004, Delta-T's motion to strike all claims of
sexual and racial harassment from the First Amended Complaint was
granted. This was consistent with representations Torain and her counsel
gave to Delta-T and its counsel that Torain wished only to proceed on
theories of race and sex discrimination and not theories of harassment,
which would include any claim for a racially or sexually hosfile work environment. Thus, in accordance
with the January 20, 2004 minute order, the court analyzes Torain's
claims under theories of discrimination and not harassment.
Second, in support of her race discrimination, sex discrimination and
retaliation claims, Torain is required to establish that an adverse
employment action took place. An adverse employment action is something
more disruptive than a mere inconvenience or an
alteration of job responsibilities. A materially
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
responsibilities, or other indices that might be
unique to a particular situation.
Hildebrandt v. Illinois Dep't of Natural Res., 347 F.3d 1014, 1034 n.13
(7th Cir. 2003) (quoting Traylor v. Brown, 295 F.3d 783
, 788 (7th Cir.
2002)). An adverse employment action would not include inconveniences or
events that "make . . . an employee unhappy," Smart v. Ball State Univ.,
89 F.3d 437, 441 (7th Cir. 1996). Instead, "an employee must show that
`material harm has resulted from . . . the challenged actions.'"
Traylor, 295 F.3d at 788 (quoting Hangerud v. Amery Sch. Dist.,
259 F.3d 678
, 692 (7th Cir. 2001)).
In this case Torain points to a number of alleged discriminatory acts
that clearly do not qualify as adverse employment actions. For example,
being given priority lists, attending regular meetings, being asked
trivial questions, being accompanied on client visits or even getting her
wedding bonus three days after her wedding did not result in material
harm to Torain nor could such events be construed as affecting her
salary, position or employment. Accordingly, the court will not consider
these events themselves as being adverse employment actions. Finally, in light of the conclusion above that the acts previously
listed are not adverse employment actions, Delta-T submits that Torain's
claims fail because she has never complained that her termination was the
result of race or sex discrimination. An examination of her First Amended
Complaint perhaps supports such a theory because it never does mentions
that Torain was fired based on discrimination and instead only speaks of
"different terms and conditions of employment." Nevertheless, the court
will examine whether the termination was discriminatory in this case.
A. Race Discrimination
A plaintiff may establish race discrimination under Title VII*fn11
through either direct or indirect proof. Bennett v. Roberts, 295 F.3d 687,
694 (7th Cir. 2002). Torain attempts to proceed under each theory. 1.
Direct method of proof
Under the direct method of proof, Torain must establish through either
direct or circumstantial evidence that "the employer's decision to take
the adverse job action was motivated by an impermissible purpose, such as
her race . . .," Adams v. Wal-Mart Stores, 324 F.3d 935, 938-39 (7th
Cir. 2003). For a statement to suffice under the direct method of proof,
it must have a degree of content that reflects discriminatory animus, it
must have been made by a decisionmaker and it must be related to the
action at issue. Sanghvi v. St. Catherine's Hosp., 258 F.3d 570, 574 (7th
Cir. 2001). Torain argues that circumstantial evidence sufficient to
satisfy the direct method of proof is present based on Graff s comments
to Torain that she was a "skinny little black girl" combined with Martin's special priority
lists given to Torain on a daily basis. According to Torain, this
evidence is "strongly connected" to her termination.
Starting with the "skinny little black girl" comment, the court,
drawing all inferences in Torain's favor, assumes for purposes of this
motion that Graff s statements reflected discriminatory animus.
Nevertheless, the two other conditions necessary for these statements to
constitute direct evidence of discrimination are not met. For example,
there is no dispute that this comment was not made contemporaneously with
or anywhere near Torain's termination. On the court's review of the
record, it appears as if the two comments were made in March and
June/July, months before Torain was terminated. Moreover, it does not
appear that Graff was the decisionmaker in this case. Graff testified that
she had gotten off the phone prior to the conversation between Torain,
Patel and Von Rohr in which Torain refused to explain how she obtained
the confidential emails. (Graff dep. at 82-83.) In addition, evidence in
the record suggests that the termination decision was made by Patel,
Executive Vice President Chris McAndrews and President Joanne McAndrews.
(Def. Ex. K at 776; Def. Ex. V., McAndrews Aff. K 13.) At best there was
a series of decisionmakers and no evidence exists that Graff s statements
otherwise influenced the viewpoints of the other decisionmakers.
Perhaps in anticipation of Graff s not being considered a
"decisionmaker," Torain cites Russell v. Board of Trs., 243 F.3d 336 (7th
Cir. 2002) and Maarouf v. Walker Mfg. Co., 210 F.3d 750 (7th Cir. 2000),
in support of her argument that a racially hosfile co-worker can be shown
to have influence on the decisionmaker so that a co-worker's bias can be
imputed to the employer. The scenarios in those cases, however, are not
similar to that present here. Indeed, the court in Maarouf explained that the principle of a co-worker's bias being
imputed to an employer was applicable where
the subordinate, by concealing relevant information
from the decisionmaking employee or feeding false
information to him, is able to influence the
decision. . . . In such a case, the discriminatory
motive of the other employee, not the autonomous
judgment of the nondiscriminating decision-maker, is
the real cause of the adverse employment action. If
the other employee merely utters a hosfile
stereotype, he is not manipulating the decision.
210 F.3d at 754. Even after viewing the facts in a light most favorable
to Torain, the court agrees with Delta-T that Torain has presented
absolutely no evidence that Graff attempted to influence the decision to
terminate Torain or that she otherwise concealed any relevant
information. Moreover, combining Martin's special priority lists adds
little to this analysis.
Therefore, for all the above reasons, Torain's attempt to proceed under
the direct method of proof fails.
2. Burden Shifting Method
Under the burden-shifting method established by McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Torain bears the initial burden of
producing evidence to sustain a prima facie case. If Torain meets this
burden, then Delta-T must produce a legitimate, nondiscriminatory reason
for its action. If Delta-T offers a legitimate nondiscriminatory reason,
the burden then shifts back to Torain to present evidence that the
employer's proffered reason is pretextual. E.g., Adams, 324 F.3d at
939-40; Sanghvi, 258 F.3d at 577.
To satisfy a prima facie case of race discrimination, Torain must show
(1) that she is a member of a protected class; (2) that she suffered an
adverse employment action; (3) that she was meeting her employer's
legitimate performance expectations; and (4) that the employer treated similarly situated employees who are not in the protected class more
favorably. E.g., Gordon v. United Airlines, Inc., 246 F.3d 878, 885-86
(7th Cir. 2001). Factor (1) is undisputed and the court assumes that
factor (2) is satisfied by Torain's termination. Delta-T challenges
whether Torain can establish factors (3) and (4).
Based on the undisputed facts in the record, Torain was not meeting her
employer's legitimate performance expectations. While this may not be a
high standard to meet and only requires "some evidence" that Torain was
meeting Delta-T's legitimate performance expectations, see Johnson v.
Zema Systems, Inc., 170 F.3d 734, 743 (7th Cir. 1999), the record is
replete with evidence of Torain's not performing aspects of her job
adequately. Beginning when Torain was hired up until when her employment
was terminated, there was a continuing stream of disciplinary notices on
major aspects of her job, including her "file completion," which Torain
herself admits was an essential job duty for a staffing coordinator.
Moreover, these concerns where listed in all of her performance reviews,
including her March 30, 2001 review and her June 1, 2001 review. These
performance reviews, disciplinary notices and written warnings finally
culminated in a "final written warning."
While Torain states that she had perfect attendance, won a "Bulk"
award, and was successful in obtaining new clients, at best this only
suggests she adequately performed certain parts of her job. The evidence
in the record taken as a whole, however, clearly shows performance
problems for which Torain was put on notice throughout her employment at
Delta-T, In addition, as for the requirement that a similarly situated
employee be treated more favorably, Torain is unable to cite to a
similarly situated employee who was believed to have performed actions
similar to those here involving misconduct comparable to misappropriation
of confidential emails. Thus, based on all of the above, Torain has failed
to satisfy her prima facie case and Delta-T's motion for summary judgment
is properly granted as a result.
Even assuming that Torain could make out a. prima facie case of race
discrimination, however, Delta-T has brought forth legitimate and
nondiscriminatory reasons for Torain's termination and she has failed to
establish that these reasons are pretextual. According to the
decisionmakers who fired Torain and the documentation provided to her
concerning the termination, she was fired because she would not
participate in the meeting scheduled on September 19 and because she
failed to provide any explanation as to how she obtained the emails
between, among others, Patel and Martin. Torain argues that these reasons
are pretextual because (1) Martin testified in his deposition that she
was fired because of lack of file completion and not because of the
September 19 meeting or anything regarding the emails and (2) she did not
break into Martin's computer and did not access his emails.
To meet her burden of showing pretext Torain must bring forth evidence
establishing that the reasons articulated by Delta-T were not its true
reasons for terminating her but instead were dishonest explanations
unworthy of credence. Zaccagnini v. Chas. Levy Circulating Co.,
338 F.3d 672, 676 (7th Cir. 2003); Peters v. Renaissance Hotel Operating
Co., 307 F.3d 535, 545 (7th Cir. 2002). Torain's first pretext
argument-that Martin gave a reason for Torain's termination that differed
from the reasons set forth by Martin's superiors-apparently means to rely
on the theory that inconsistent reasons for a termination raises a
question on pretext. E.g., Perfetti v. First Nat. Bank of Chicago,
950 F.2d 449, 451 (7th Cir. 1991). The court, however, does not believe
that Martin's testimony is sufficient to show pretext for a number of
reasons. Initially, similar to Graff above, Martin was not one of the
decisionmakers concerning Torain's termination. While he did serve as her
supervisor, he was not on the phone for the conference call meeting in
which Torain was confronted with the question of the emails.*fn12
Furthermore, Martin's testimony in his deposition is against the vast
weight of all the evidence in the record. Every Delta-T decisionmaker
taking part in the meeting was clear that the reason for Torain's
termination was her failure to take part in the meeting and her failure
to confront the issue of the confidential emails. (Def. Ex. I, Patel
Dep. at 9-10, 21-22, 27; Def. Ex. V, McAndrews Aff. ¶ 13.) This is also
consistent with documentation for the termination that Patel, on behalf
of Delta-T, mailed to Torain. (Def. Ex. K, at 000776). In short, Martin's
deposition testimony is merely a scintilla of evidence and insufficient
to meet Torain's burden of establishing pretext.
Torain's second pretext argument-that she did not access Martin's
computer or take his emails-is irrelevant. Delta-T need only provide a
honest reason for the termination not necessarily a correct one. See,
e.g., Flores v. Preferred Technical Group, 182 F.3d 512, 516 (7th Cir.
1999) ("employer only needs to supply an honest reason, not a reasonable
one."); Gustovich v. AT & T Communications, 972 F.2d 845, 848 (7th Cir.
1992) (plaintiff's actual performance as an employee is irrelevant
because the question is not whether the employer's reasons for a decision
are "right but whether the employer's description of its reasons is
honest.") (emphasis in original). While Torain may stand behind her
theory that these emails were mailed to her at home, there is no evidence to suggest that Delta-T did
not honestly believe that Torain had misappropriated the emails and
improperly accessed her supervisor's computer. Indeed, when given the
chance to explain her possession of the confidential information to her
supervisors, Torain did not even advance the theory she supplies here.
Accordingly, based on the above, Torain is unable to create a triable
issue of fact under the burden shifting method. Delta-T's motion for
summary judgment on Torain's race discrimination claim, therefore, is
B. Sex Discrimination
Torain appears to abandon her sex discrimination claim by not
mentioning it in her response brief. In any event, under Title VII an
employer cannot "discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual's . . . sex." 42 U.S.C. § 2000e2(a)(1). To prevail on a
claim of sex discrimination, Torain would have to show that Delta-T
intentionally discriminated against her. Kormoczy v. Sec'y U.S. Dep't of
Hous. and Urban Dev., 53 F.3d 821, 824 (7th Cir. 1995). She may do this
through either direct or indirect proof. Although Torain does not
specify, since she points to no direct evidence in the record, the court
presumes that she proceeds under the indirect method of proof.
The indirect method of proof is the same burden-shifting approach
detailed above for Torain's race discrimination claim. Torain's claim
fails for the same reasons listed above. She cannot make out her prima
facie case because she was not meeting her employer's legitimate
performance expectations and cannot point to a similarly situated
employee. Moreover, even if she could make out a prima facie case, she cannot meet her burden to show
pretext. As such, summary judgment is granted in favor of Delta-T on
Torain's claim for sex discrimination.
It is unlawful for an employer to discriminate against an employee for
opposing a practice made unlawful under Title VII. 42 U.S.C. § 2000e-3(a).
To prove a case of retaliation, a plaintiff must establish by a
preponderance of the evidence (1) that she opposed an unlawful employment
practice; (2) that she suffered an adverse employment action; and (3) that
the adverse employment action was caused by her opposition to the
unlawful employment practice. David v. Caterpillar, Inc., 324 F.3d 851,
858 (7th Cir. 2003). An employer's intent to retaliate may be proven
either directly or indirectly. Id. Once again, Torain fails to bring
forth evidence under the direct method, so the court assumes that she
proceeds under the indirect method of proof.
Under this method, a plaintiff must show (1) that she engaged in a
statutorily protected activity; (2) she was subjected to an adverse
employment action; (3) she was performing her job in a satisfactory
manner; and (4) she was treated less favorably than any other similarly
situated employee who did not engage in such protected activity, Brown
v. Chicago Sun-Times, Inc., No. 00 C 6728, 2002 WL 31844984, at *5 (N.D.
Ill. Dec. 17, 2002) (citing Stone v. City of Indianapolis Pub. Utils.
Div., 281 F.3d 640 (7th Cir. 2002), If Torain establishes a prima facie
case of retaliation in this manner, the burden then shifts to the
defendant to articulate a legitimate nondiscriminatory reason for the
adverse employment action. "If the defendant presents unrebutted evidence
of a noninvidious reason for the adverse action, [it] is entitled to
summary judgment. Otherwise, there must be a trial." Id. (quoting Stone,
281 F.3d at 644). Under this method, establishing a causal link between the protected expression
and adverse employment action is not required. Id.
Rather than spell out in her brief what her protected activity was,
Torain suggests that certain "incidents" (apparently including the
requirement that she be given priority lists) resulted in her
termination. The court fails to see, and Torain does not make clear, how
any of this makes for retaliation. See Clay v. Holy Cross Hosp.,
253 F.3d 1000, 1002 n. 1 (7th Cir. 2001) (noting that "perfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent
authority, are waived.").
Torain also argues that she complained to management about
discrimination and nothing was done. The court will assume that this
satisfies element (1) of Torain's prima facie case. Nevertheless, similar
to her race discrimination claim, Torain cannot establish that she was
performing her job in a satisfactory manner and is unable to point to a
similarly situated employee treated more favorably who was did not engage
in the protected activity. And even if she could, she is still unable to
establish that Delta-T's reasons are pretextual. As such, Delta-T's
motion for summary judgment is granted on Torain's retaliation claim.
D. Wage Payment and Collection Act
Torain's last claim arises under the Illinois Wage Payment and
Collection Act, 820 ILCS 115/1 et. seq. In her First Amended Complaint
Torain alleged that Delta-T has withheld $1,599.98 in regular wages,
$369.21 in vacation pay, and $568.19 in bonus pay. In its motion for
summary judgment Delta-T argues that the Employment Agreement between
Torain and Delta-T specifically provided that Pennsylvania law would
apply and, therefore, Torain's claims under the Illinois Act must fail. Torain fails to respond or even mention her
claim under the Illinois Wage Payment and Collection Act in her brief,
and the court, therefore, views her undeveloped claim as waived. See
Clay, 253 F.3d at 1002 n. 1. As such, Delta-T's motion for summary
judgment on this claim is granted.
For the reasons stated above, Delta-T's motion for summary judgment is
granted [#26]. The clerk is instructed to enter judgment in favor of the
defendants. This case is terminated.