United States District Court, N.D. Illinois
May 5, 2004.
BARBARA JACK-GOODS, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendants
The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge
MEMORANDUM OPINION AND ORDER
On August 22, 2001, the plaintiff, Barbara Jack-Goods, filed this
action against the defendant, State Farm Mutual Automobile Insurance
Company, claiming sex, race and age discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq.,
42 U.S.C. § 1981, and the Age Discrimination in Employment Act,
29 U.S.C. § 621, et seq. On September 26, 2003, plaintiff amended her
complaint to withdraw her age discrimination claim. Defendant now has
moved for summary judgment on all remaining claims (doc. # 28). For the
reasons given below, the Court grants this motion.*fn1
Summary judgment is proper if the record shows that there is no genuine
issue as to any material fact, and that the moving parties are entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for
trial exists only when "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). If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted. Id. at 249-50; see also Flip
Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th
Cir.), cert. denied, 488 U.S. 909 (1988). In deciding a motion for
summary judgment, the Court must view all evidence in the light most
favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield
Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977
(1987), and must draw all reasonable inferences in the nonmovant's
favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990).
When a material fact or a set of facts yields competing, but
reasonable, inferences, then there is a genuine issue that precludes
summary judgment. The non-moving party's burden is to identify facts that
are both material and genuinely disputed. Celotex Corp. v. Catrett,
477 U.S. 317, 324,(1986). To be material, a fact must be outcome
determinative under the substantive law governing the motion. Insolia v.
Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A "genuine issue"
exists when the party opposing the motion for summary judgment serves and
files, pursuant to local Rule 56.1, a concise statement outlining the
material facts that require denial of summary judgment, supported by
citations to the evidentiary materials that support those denials (e.g.,
affidavits, depositions, answers to interrogatories, admissions etc.).
Fed.R.Civ.P. 56(c). Although the party seeking summary judgment bears the
initial burden of proving that there is no genuine issue of material
fact, Celotex, 477 U.S. at 323, the non-moving party cannot rely upon the
pleadings alone, but must use the evidentiary tools outlined in Rule 56. II.
The material facts that the parties do not genuinely dispute and that
support the entry of summary judgment for the defendant are as
follows. On or about March 16, 2001, plaintiff filed a charge of
discrimination against State Farm with the Equal Employment Opportunity
Commission ("EEOC"), thus satisfying the requirement of
42 U.S.C. § 2000e-5(b) and (e) for pursuing a Title VII lawsuit.
Plaintiff's charge of discrimination was timely filed within 300 days
after certain alleged unlawful employment practices occurred. On May 24,
2001, the EEOC issued plaintiff a Notice of Right-to-Sue with respect to
her charge of discrimination. This action was timely brought within 90
days of plaintiff's receipt of the Notice of Right-to-Sue letter
(Defendant's Rule 56.1 Statement of Undisputed Facts (hereinafter,
"Def.'s 56.1 So. ¶ ___") ¶ 5).
A. Plaintiff's Initial Employment with State Farm
The defendant hired plaintiff in December 1984, at its Griffith,
Indiana office. During the period immediately prior to April 1998,
plaintiff served as a claims specialist in the Griffith office's personal
injury department (also known as the bodily injury department). While
serving in this department, plaintiff's immediate supervisor was Ellen
Johnson (Def.'s 56.1 St. ¶ 7). At some point prior to April 1998,
plaintiff was promoted to the position of claims specialist, also known
as an MA3 (Id. ¶ 6).
B. State Farm's 1998 Reorganization.
In 1998, State Farm changed its claim handling operations at the
Griffith office. The claims specialists who previously handled either
bodily injury or property damage claims began handling both kinds of
claims. At approximately the same time, State Farm created its "Claims
Central" operation. Generally, less complex claims were referred to
Claims Central for handling while the more complex claims remained in the Griffith office for handling. Thus,
the relative complexity of the claims handled by the Griffith claims
specialists increased (Def.'s 56.1 St. ¶ 8). At about this same time,
more responsibility for the handling of files was given to claims
specialists in the Griffith claims office. Claims specialists set their
own case-handling schedules and developed their own case plans. However,
supervisors continued to review the files on which claims specialists
were working, as well as closed files. The more problems that a
supervisor saw in a claims specialist's handling of the case, the more
frequently the supervisor would review that specialist's files and the
more frequently the supervisor would meet with the specialist to instruct
him or her in how to improve his or her work product (Id. ¶ 9).
At the time of the 1998 change in claims handling operations, some
employees were reassigned to different supervisors. Scott Lewis (formerly
the property damage supervisor) and Ms. Johnson (formerly the personal
injury supervisor) were each charged with supervising some of the
employees formerly assigned to each of the departments at the Griffith
office. As a result of the 1998 reorganization, as of the Spring of 1998,
Mr. Lewis supervised Jeff Novorita, Tanya Bolden, Carrie Nero, Barbara
Jack-Goods, and others. From the time of the reorganization forward, Mr.
Lewis did not supervise Jason Miller, and was not a decision-maker with
respect to Mr. Miller's employment (Def.'s 56.1 St. ¶ 10).
C. Plaintiff's Employment From April 1998 Through
From April 1998 through August 1998, plaintiff worked as the duty
representative, assisting insureds and claimants who came to the office
seeking information (Def.'s 56.1 St. ¶ 11). In July 1998, Mr. Lewis
completed a review of plaintiffs work as the duty representative. This
review was very positive, indicating that plaintiff "has performed [as
duty representative] very well as demonstrated by the number of compliments I have received regarding her
handling of our customers in the drive-in" (Id. ¶ 12). In August 1998,
plaintiff was moved back to a regular claims specialist desk, where she
remained under the supervision of Mr. Lewis (Id. ¶ 13). In early
November 1998, because Mr. Lewis was out of the office, Ms. Johnson
signed plaintiff's review for Mr. Lewis, in accordance with Mr. Lewis'
instructions. This review again was very positive, indicating that
plaintiff "was just re-assigned from duty rep to field claims
representative. Barbara is flexible [sic] and has a positive attitude in
our changing times. She has excellent rapport with her agency partner and
customers" (Id. ¶ 14).
The record indicates that Mr. Lewis began to perceive a decline in
plaintiff's job performance in the fourth quarter of 1999, and that he
expressed this perception and/or opinion to her in a variety of ways:
through written memoranda, during personal meetings in his office, and in
her performance evaluation for 1999 and 2000 (Def.'s 56.1 St. ¶¶ 15, 18
(e.g., Def.'s Ex. F, at 25 and Ex. D thereto; Def.'s Ex. K ¶ 2; Def.'s
Ex. F, at 32-34; Def.'s Ex. C, at 12-15; 33; Pl's Ex. 30)). Beginning in
March 2000, Mr. Lewis began reviewing more of plaintiff's files and
meeting with her more frequently to counsel her as to ways she could
improve her job performance (Def.'s 56.1 St. ¶ 16). By her own
testimony, plaintiff acknowledges that Mr. Lewis would discuss specific
case files with her during frequent meetings in her office; in these
meetings, Mr. Lewis noted areas in which he said the plaintiff had made
errors or not ideally handled a case, and suggested ways in which she
could have handled the case better (Id. ¶ 16; Def.'s Ex. C, at 333).
Mr. Lewis testified that he evaluated plaintiff's files more frequently
than the other MA3s under his supervision in the year 2000 (Def.'s 56.1
St. ¶ 15; Def. `s Ex. F, at 89). Plaintiff verifies this testimony with
her own when she states that "she was the only employee who was required to attend long counseling
sessions or meetings with Mr. Lewis" (Pl's Am. Resp. to Def.'s 56.1 St.
¶ 17 (Pl.'s Dep., Def.'s Ex. C, at 250)).
Mr. Lewis's complaints about the plaintiff's job performance generally
focused on what he perceived to be plaintiff's diminished responsiveness
to agents, insureds and others; for example, plaintiff did not return
some phone calls, delayed returning other phone calls and/or was not in
the office to receive phone calls and answer questions (Def.'s 56.1 So.
¶¶ 18-19). Mr. Lewis also received complaints from agents, insureds and
others regarding plaintiff's responsiveness (Id. ¶ 18). The plaintiff
admits that she did not always immediately return certain phone calls
(Def.'s Ex. C, at 504-507 (Pl.'s Dep.)). The plaintiff, however,
disagrees (a) that she had "performance problems," and (b) that she made
an error by not contacting an attorney on a case where State Farm ended
up paying a $15,000 judgment after trial (Def.'s Ex. C, at 505-06,
Thus, in general, the record reflects that Mr. Lewis, plaintiff's
supervisor, perceived and documented deteriorating job performance by
plaintiff in the fourth quarter of 1999 and throughout the year 2000. Mr.
Lewis did not make any secret that this was his view, as is illustrated
by the following excerpts from his written memos to plaintiff.
March 27, 2000 Memorandum (Pl.'s Ex. 12). Mr. Lewis made the following
comments to the plaintiff:
I have two or three conversations over the past six
months regarding complaints I have received from
claimants, insureds, and agents about phone calls not
being returned and you not being available for the
customers or agents. . . . These instances cannot
continue to occur as customer service is greatly
affected by your lack of availability and phone calls
not being returned. Not only is customer service
impacted, but the morale of the other team members and
the impositions placed upon them [also] is becoming a
factor. . . . Regarding customer concerns on not being
able to contact you, I have noticed your absence from
the office for extended periods of time (two to three
hours) quite frequently. The memorandum also compliments the plaintiff for working "early in the
morning or late in the evening" or some days (e.g., "This has not gone
unnoticed"), and for taking "the initiative" to purchase a cell phone to
make herself more available to customers. Finally, the memorandum offers
to "work with" the plaintiff "in any way possible to correct the concerns
of this memo."
The plaintiff responded with her own memorandum (Pl's Ex. 13),
expressing her disagreement with the criticisms noted by Mr. Lewis.
June 2, 2000 Memorandum (Pl's Ex. 14). This memorandum specifically
describes problems perceived by Mr. Lewis with respect to certain files
and certain clients. For example, Mr. Lewis cited plaintiff's delinquency
in returning a phone call from policyholder Amy Brum and her failure to
hire an attorney for a trial, resulting in a $ 15,000 judgment against
State Farm. There were also medical bills in another file in excess of
the claim limit, and no follow up by plaintiff. The plaintiff refused to
sign this memorandum after Mr. Lewis discussed it with her.
June 14, 2000 E-mail (Lewis to Lesley) (Pl's Ex. 16). In this e-mail to
Chris Lesley, a human resources person at State Farm, Mr. Lewis documents
specific complaints and instances in which plaintiff did not return phone
calls or follow up on business for a particular file.
June 16, 2000 E-mail (Lewis to Letcher) (Pl.'s Ex. 17). In this e-mail
to Kevin Letcher, Mr. Lewis discusses plaintiff's third quarter
performance rating in "quality claim resolution." He explains that the
review/rating remained a 4, rather than a 3, despite the job performance
problems he noted, because he and Lesley wanted to give plaintiff "the
benefit of the doubt" even though the written statements in the review
"made it very clear [plaintiff] is a border line 4" and that future
problems would result in a lowered rating to 3. Mr. Lewis also wrote that
he was aware that State Farm might "have to defend this later on if the
worst case situation [sic] [were] to occur." December 12, 2000 Memorandum (Pl's Ex. 21). In this memorandum, written
and received shortly before plaintiff's medical leave of absence, Mr.
Lewis refers plaintiff to the March 27, 2000 conversation about
responsiveness issues, and the June 2, 2000 memorandum in which he
reiterated the March responsiveness issue, including plaintiff's lack of
availability and timeliness of returning phone calls. Mr. Lewis also
highlighted "performance concerns regarding [plaintiff's] quality claim
resolution, customer satisfaction and personal effectiveness skills." In
addition, Mr. Lewis pointed out two files "not handled according to
Company procedures," and a fourth quarter QPR "below the appropriate
level of performance in quality claim resolution, customer satisfaction,
and personal effectiveness." The memorandum detailed specific problems on
D. Plaintiff's Sick Leave and Resignation.
The last day that plaintiff worked for State Farm was on or about
December 15, 2000 (Def. `s 56.1 St. ¶ 14). On December 20, 2000,
plaintiff's husband came into the office, dropped off some files, and gave
Mr. Lewis a doctor's note indicating that plaintiff needed to take a sick
leave because she was under significant stress and having palpitations
(Id., ¶ 25). Plaintiff was granted a sick leave and never returned to
work (Id., ¶ 26). On or about February 12, 2001, plaintiff sent State
Farm a letter indicating that she was resigning her employment because,
prior to her leave, her work environment had been hosfile, nerve racking,
and stress-filled. Nowhere in her letter did plaintiff suggest to any
member of State Farm's management that she believed that her race or
gender was the reason for the treatment about which she complained (Id., ¶ 27). On
or about February 15, 2001, Mr. Letcher completed a memorandum which
stated that plaintiff had terminated her employment because of her
dissatisfaction with State Farm (Id., ¶ 28). Although the December 2000
memorandum that Mr. Lewis gave to plaintiff never informed her that her
employment had been or would be terminated, that memorandum did indicate
that she "could be terminated" (Pl. `s Am. Resp. ¶ 29, citing Pl.'s Ex.
E. Mr. Lewis' Supervisory Style and Demeanor.
Other employees supervised by Mr. Lewis knew him to be an
authoritative, by-the-book, regimented and detail-oriented supervisor.
For example, there is testimony that Mr. Lewis would sometimes walk
around the employees' work stations, reading their mail, faxes and
messages and answering their phones. Mr. Lewis also expected his claims
specialists to complete their files in a particular order and manner, and
he criticized employees who did not follow this procedure to the letter
(Def.'s 56.1 St. ¶ 30). The plaintiff herself testified that when she
and Mr. Lewis were discussing previous management experiences, she
interpreted his comments to mean that he enjoyed the "sweat shop" type of
environment (Def.'s Sur-Response ¶ 32).
Two of plaintiff's fellow MA3 employees, whom Mr. Lewis supervised,
also complained about him. Carrie Nero, a white female, complained that
Mr. Lewis made her feel that everything she did was wrong (Pl.'s Am.
Resp. ¶ 33; Def.'s Sur-Response ¶ 33). In particular, she testified
that Mr. Lewis was sarcastic, spoke down to her and was overcritical of
her work during frequent meetings at which they discussed her performance
(Def.'s 56.1 St. ¶ 35). Jeff Novorita, a white male, stated that Mr.
Lewis "was often critical of my work and claims handling, and focused on
what I perceived to be insignificant oversights and problems" (Pl.'s Am.
Resp. ¶ 33; Def.'s Sur-Response ¶ 33). Mr. Novorita also testified that Mr. Lewis frequently read the
messages, faxes and mail on his desk and answered his desk phone (Def.'s
56.1 St. ¶ 37). Mr. Novorita further testified that Mr. Lewis counseled
him and coached him to help him improve (Id.).
Two African-American women whom Mr. Lewis supervised, Adrienne Chumley
and Gloria Woods, also testified that Mr. Lewis spoke in authoritative,
condescending, sarcastic, and/or parental tones (Def.'s 56.1 St. ¶
39). On the other hand, Tanya Bolden, an African-American woman who was
an MA3 claims specialist supervised by Mr. Lewis, did not, according to
plaintiff's own admission, have any performance problems; instead, she
was considered by Mr. Lewis a "top-notch employee with strong potential"
who did not have job performance problems; indeed, she was the very
person whom Mr. Lewis suggested that plaintiff emulate (Def.'s 56.1 So.
¶ 38). The plaintiff was the only State Farm employee whom Mr. Lewis
supervised who resigned (Def. `s 56.1 St. ¶ 40).
F. State Farm's Applicable Corporate Policies.
State Farm's policy is that an employee who has notable performance
problems cannot be recommended for a transfer or promotion to a position
outside that area (Def.'s 56.1 St. ¶ 41). State Farm also has a widely
disseminated "open door" policy. Employees are informed that they can
speak to any management person at any time at any level without fear of
reprisal (Id., at ¶ 42). State Farm has a Code of Conduct hotline, the
existence of which also is publicized to employees. This hotline connects
directly to State Farm's corporate offices, and provides a means for
employees to raise concerns and complaints about their workplace (Id., at
43). Both the open-door policy and the Code of Conduct hotline are
discussed with employees on at least a yearly basis (Id.). III.
We begin our legal analysis with Counts I and II, in which the
plaintiff alleges a constructive discharge on the basis of gender and race
in violation of Title VII. Under Title VII, the plaintiff must establish
a prima facie case of discrimination before an inference of
discrimination can be validly drawn and used to defeat summary judgment.
Such a prima facie case is established by evidence showing that: (1) the
plaintiff was a member of a protected class; (2) she was qualified for her
position; (3) despite her qualification, she suffered an adverse
employment decision by the defendant; and (4) other, similarly situated
employees who were not members of the protected class were treated more
favorably. McDonnell Douglas v. Green, 411 U.S. 792 (1973); O `Regan v.
Arbitration Forums, Inc., 246 F.3d 975 (7th Cir. 2001). Although
establishing the prima facie case has been described as a "low hurdle,"
Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994), in this case, the
plaintiff has failed to clear hurdle numbers three and four.
As part of the prima facie case, the plaintiff must offer evidence that
the adverse employment action was not the result of a failure to perform
the employer's legitimate expectations. In this case, the Court will
assume, arguendo, that the plaintiff was qualified for the MA3 position
she held and that she was performing satisfactorily. The basis for this
assumption is twofold: first, the defendant admits that it did not fire
the plaintiff and would not have done so based on the performance issues
reflected in the plaintiff's 1999 and 2000 job performance reviews (Pl.'s
Exs. 29 and 30); and second, according to the reviews (QPRs), although
plaintiff was performing some areas of her job very well and others not as
well, her ratings never dropped below a "3" which is always descriptive
of a satisfactory even if not ideal or expected performance. Although the parties spend many pages disputing whether plaintiff had
"performance problems," these disputes are not the crux of this case.
Neither side disputes that Mr. Lewis honestly perceived that some of
plaintiffs' actions and/or failures to act were job performance problems.
In the Seventh Circuit, it is the decision-maker's perception of a
plaintiff's performance, not her own, that is relevant. Adreani v. First
Colonial Bankshares Corp., 154 F.3d 389, 398 (7th Cir. 1998). The prima
facie case required under McDonnell Douglas requires the plaintiff to
show that she was qualified for the position she held, but, despite this
qualification, suffered an adverse employment action that was not
experienced by other similarly situated persons.
Thus, the Court will move on to the central issues presented on summary
judgment: (a) whether the evidence submitted would allow a jury to
reasonably decide that Mr. Lewis's conduct created a working environment
for plaintiff that was so intolerable that any reasonable person would
have felt compelled to quit, and if so (b) whether the evidence would
allow a jury to reasonably conclude that Mr. Lewis acted because of race
and/or gender. We address each of these questions in turn.
An adverse employment action is defined as more disruptive than a mere
inconvenience or an alteration of job responsibilities. Traylor v.
Brown, 295 F.3d 783, 788 (7th Cir. 2002). To establish a claim for
constructive discharge as the adverse employment action under Title VII,
"a plaintiff must prove that his working conditions were so intolerable
as a result of unlawful discrimination that a reasonable person would be
forced into involuntary resignation." Tutman v. WBBM-TV, Inc./CBS, Inc.,
209 F.3d 1044, 1050 (7th Cir. 2000). See also Simpson v. Borg-Warner
Automotive, Inc., 196 F.3d 873, 877 (7th Cir. 1999). "Working conditions
for constructive discharge must be . . . egregious . . . because in the `ordinary' case, an employee
is expected to remain employed while seeking redress." Id.
The determination of what a reasonable person would do in a given
circumstance, although generally a question of fact, is a question the
Court can decide as a matter of law in this case. The undisputed material
facts in this case would not allow a jury to reasonably conclude that
plaintiff's working environment was so intolerable that a reasonable
person would feel compelled to resign. Seventh Circuit case law
establishes that much more is needed to establish a constructive
discharge than what plaintiff has offered here.
For example, in Tutman, the Seventh Circuit found that the statement
"Get the fuck out of the office before I pop a cap in your ass[,]"
interpreted by the African-American plaintiff in that case as a death
threat (since "pop a cap" means "to shoot" in gang parlance), as well as
a comment, "have you seen a movie entitled `Niggers with Hats'" (a film
actually entitled Tear of a Black Hat'), was not enough to create an
egregious enough work situation for plaintiff that would establish
constructive discharge. Tutman, 209 F.3d at 1046-1048, 1050. The appeals
court explained that a credible death threat that signals grave danger to
the plaintiff's bodily integrity . . . can constitute grounds for finding
constructive discharge, "but the kind of harassment suffered by Tutman
fell "well short of this standard." Id. The Seventh Circuit thus affirmed
the district court's grant of summary judgment.
Conversely, "[i]n cases finding constructive discharge, the plaintiffs
suffered from much more severe and sustained harassment." Id. For
example, in one case, the Seventh Circuit found constructive discharge
when the plaintiffs' boss constantly peppered the plaintiffs with racist
comments, brandished a pistol and held it to one plaintiff's head. Taylor
v. Western & S. Life Ins. Co., 966 F.2d 1188, 1191 (7th Cir. 1992). In another case, the plaintiff
established constructive discharge where "repeated instances of grossly
offensive conduct and commentary" culminated with an incident during
which a co-worker showed the plaintiff a racist pornographic photograph,
told her that she was hired to perform the task depicted in the
photograph, grabbed the plaintiff and threatened to kill her. See Brooms
v. Regal Tube Co., 881 F.2d 412, 417, 423 (7th Cir. 1989).
This case is not like Brooms or Taylor. Here, at most, the plaintiff
experienced "boorish behavior" by Mr. Lewis, unwarranted criticism and
reviews, excessive counseling, and unjustified increases in the amount of
work she was asked to do or to correct. This kind of conduct, however,
has never been sufficient in the Seventh Circuit to create a triable
issue on constructive discharge. See, e.g., Patton v. Indianapolis Public
School Board, 276 F.3d 334, 339 (7th Cir. 2002) (affirming district
court's entry of summary judgment for employer where rude, overbearing,
critical behavior by supervisor does not create intolerable working
conditions establishing constructive discharge); Harriston v. Chicago
Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993) (affirming district
court's entry of summary judgment for employer where counseling and
criticism were not sufficiently egregious to constitute constructive
discharge). See also Wardwell v. School Board of Palm Beach County,
786 F.2d 1554, 1557-58 (11th Cir. 1986) (reversing district court's entry
of judgment for plaintiff where different work assignments did not
provide sufficient basis for constructive discharge).
Moreover, the complaints plaintiff made about Mr. Lewis prior to her
resignation were general in nature; none of these complaints alleged that
the treatment she received from Mr. Lewis was tied to her sex or race.
General complaints about working conditions, even if the employer fails
to respond to them, do not constitute a basis for constructive discharge.
Ashkin v. Time Warner Cable Corp., 52 F.3d 140, 143-44 (7th Cir. 1995).*fn3 For these reasons,
plaintiff has failed to create a triable issue on whether she suffered an
adverse employment action.
Plaintiff has also failed to satisfy the fourth prong of the prima
facie case, namely, that another similarly situated employee, who is
comparable to her in all material respects, but who is not in the
protected class, was treated more favorably by the employer. Plaintiff
points to one comparable: Jeff Novorita, a white male, who was an MA3
employee supervised by Mr. Lewis at the time of plaintiffs employment
with defendant. The plaintiff argues that she was similarly situated to
Mr. Novorita because Mr. Lewis held them to the same standards of
performance; she says that Mr. Novorita was treated more favorably
because he had lower QPR averages in 1998 than the plaintiff did in 2000,
but he was not required to attend daily (and lengthy) counseling sessions
with Mr. Lewis; did not have his files reviewed on a weekly basis; and
did not have "drop file" memos by Mr. Lewis criticizing specific actions
and mistakes made by Mr. Novorita.
There are several reasons why the Court finds that Mr. Novorita is not
plaintiff's comparable for purposes of the fourth prong of the prima
facie case. First, the QPR periods that plaintiff points to are different
and do not reflect similar fact situations. See Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617 (7th Cir. 2000) (employees must have similar
experience to be similarly situated). The QPR period in 1998 directly
followed the reorganization, during which time the case loads of all employees increased; the QPR period in 2000 occurred well after Mr. Lewis
and his MA3 employees had adapted to the reorganization's demands.
Second, there is no evidence that Mr. Lewis received customer complaints
about Mr. Novorita, as was the case with plaintiff. Third, there is
undisputed evidence that when Mr. Lewis thought Mr. Novorita made
mistakes, Mr. Lewis counseled and reprimanded him, and that he did so in
a similar fashion to the way he treated plaintiff.
Finally, we note that the "similarly situated" prong of the McDonnell
Douglas prima facie test is intended to show that there is evidence which
would allow an inference of discriminatory intent. On the issue of
intent, there is undisputed evidence that Ms. Bolden, an African-American
MA3 who was supervised by Mr. Lewis and who worked with the plaintiff,
was perceived by Mr. Lewis to be a model employee. Where a similarly
situated employee within the plaintiff's protected class is treated
favorably, that evidence must be factored into the determination of
whether plaintiff has established a "logical reason" for believing that
the defendant's actions were discriminatory. Kelly v. Apollo Travel
Services Partnership, No. 98 C 2506, 2000 WL 1170074, at *9 (N.D. Ill.
August 16, 2000). The plaintiff has failed to establish such a logical
We also note that for the first year or so that he supervised
plaintiff, Mr. Lewis gave her quite favorable job performance reviews.
Plaintiff has offered no explanation of why she received those favorable
reviews, if-indeed-Mr. Lewis harbored discriminatory animus because of
plaintiff's race and/or gender. To the contrary, the evidence indicates
that all Caucasian and African-American employees, as well as all male
and female employees, were treated with what they perceived as rudeness
and criticism by Mr. Lewis when he had problems with their job
performance. In particular, Mr. Novorita, a white male, also perceived
that Mr. Lewis treated him with rudeness and unjustified criticism.
Harden v. S.C. Johnson & Son, Inc., 167 F.3d 340 (7th Cir. 1999) (no
evidence of unlawful discrimination where undisputed facts show that supervisor
treated all employees with equal disrespect). Plaintiff has failed to
offer evidence to create a triable issue on the fourth element of the
prima facie test.*fn4
We now turn to Count III of the amended complaint, which asserts a
claim of race discrimination under Section 1981. A claim of employment
discrimination is actionable under Section 1981. Saghvi v. St.
Catherine's Hosp., Inc., 258 F.3d 570 (7th Cir. 2001). To prove a claim
under Section 1981, the plaintiff must show: (1) that she is a member of
a racial minority; (2) that the defendant intended to discriminate
against her on the basis of race; and (3) that the alleged discrimination
concerned an activity protected by the statute. Morris v. Office Max,
Inc., 89 F.3d 411, 413 (7th Cir. 1996). The allegations of Count III fail
to create a triable claim under Section 1981 for three reasons.
First, in Count III, plaintiff realleges all of the other paragraphs of
the first amended complaint and then states that the alleged conduct
"violated Jack-Goods' right to be protected against racial discrimination
in the making and enforcement of contracts" (Am. Compl., ¶ 24).
However, the preceding paragraphs of the amended complaint allege only
the conduct that plaintiff claims created the constructive discharge;
there are no allegations that describe or allege any other interference
in the "making and enforcement of contracts." Thus, for the reasons that
the constructive discharge theory fails to create a triable issue under
Title VII, it likewise fails to create a triable issue under Section
Second, we reject the plaintiff's attempt to cure this problem by
arguing in her summary judgment brief that the Section 1981 claim is
based on a failure to transfer (see Pl.'s Mem. at 14-15). There is not
one word in the amended complaint about a failure to transfer (wrongful
or otherwise), and a summary judgment brief filed after the close of all
discovery is not the time or place for a plaintiff to attempt to amend
the pleadings. Moreover, even if a transfer claim had been pled, it would
be waived because she failed to raise that claim in her EEOC charge.
Cheek v. Peabody Co., 97 F.3d 200, 202-03 (7th Cir. 1996).
Third, even if plaintiff had not waived this argument, it would fail on
the merits, as did plaintiff's Title VII claims, because the factual
record fails to support a sustainable inference that plaintiff suffered
an adverse employment action or was similarly situated with respect to
others who were treated more favorably. As for the adverse employment
action prong, there is case law from this district holding that a
plaintiff cannot sustain a prima facie case for failure to transfer
because such an act is not an adverse employment action. Washington v.
Thrall Car Manufacturing Co., 901 F. Supp. 1269 -1274 (N.D. Ill. 1995). A
decision from the District of Columbia Court of Appeals also recently
held that a failure to transfer cannot constitute an adverse employment
action unless the position requested results in greater pay or tangible
benefits. Stewart v, Ashcroft, 352 F.3d 422 (D.C. Cir. 2003). And, as for
the similarly situated prong, there is no evidence that a person outside
the protected class was treated more favorably by Mr. Lewis with respect
to transfer applications, in general, or the specific transfer
application and/or opening in the subrogation department, that plaintiff
complains about. CONCLUSION
IT IS THEREFORE ORDERED that the defendant's motion for summary
judgment be granted (doc. # 28) on all claims in plaintiff's amended