United States District Court, N.D. Illinois, Eastern Division
August 4, 2004.
SHARON D. RICHARDSON, Plaintiff,
CHICAGO TRANSIT AUTHORITY, Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
After she was terminated from her job as the Chicago Transit
Authority ("CTA") Manager of Customer Relations, Sharon
Richardson ("Richardson") sued CTA, alleging that it had
discriminated against her on account of her race and sex in
violation of both Title VII of the Civil Rights Act ("Title VII,"
42 U.S.C. § 2000e) and 42 U.S.C. § 1981 ("Section 1981"). CTA
moved for summary judgment pursuant to Fed.R. Civ. P. ("Rule")
56, and both parties have complied with this District Court's LR
Even with the record viewed in her favor as Rule 56 requires,
Richardson has not come forward with enough facts for a reasonable jury to conclude that she ought to prevail on either
ground of her Title VII claim or on her Section 1981 claim. Hence
CTA's Rule 56 motion is granted, and this action is dismissed.
Rule 56 Standards
Every Rule 56 movant bears the burden of establishing the
absence of any genuine issue of material fact (Celotex Corp. v.
Catrett, (477 U.S. 317, 322-23 (1986)). For that purpose courts
consider the evidentiary record in the light most favorable to
nonmovants and draw all reasonable inferences in their favor
(Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.
2002)). But to avoid summary judgment a nonmovant "must produce
more than a scintilla of evidence to support his position" that a
genuine issue of material fact exists (Pugh v. City of Attica,
259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific
facts that demonstrate a genuine issue of triable fact" (id.).
Ultimately summary judgment is warranted only if a reasonable
jury could not return a verdict for the nonmovant (Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is
therefore a summary of the facts viewed in the light most
favorable to nonmovant Richardson but within the limitations
created by the extent of her compliance (or noncompliance) with
the strictures of LR 56.1. Facts
Richardson was hired in October 1997 as CTA's Manager of
Customer Relations (C. St. ¶ 13). Her chief responsibility was to
manage the day-to-day operations of CTA's call center, including
supervising its staff (R. St. ¶ 2; R. Ex. A).
In May 2000 Richardson took over as Acting General Manager of
Customer Relations (R. St. ¶ 13), reporting directly to CTA's
Vice President of Transit Operations Richard Winston ("Winston")
(C. St. ¶ 15). Richardson held that job for a little over a year
until CTA hired Tamara McCollum ("McCollum") in August 2001 as
the permanent General Manager (C. St. ¶ 18). At that point
Richardson returned to her previous post as Manager of Customer
Relations (C. St. ¶ 20).
As McCollum began her tenure with CTA, Richardson helped to
transition her new supervisor into the position she herself had
been filling (R. St. ¶ 45). But despite their initially cordial
interaction, over the course of the next several months McCollum
and Richardson developed a volatile working relationship that
vacillated from harmony to acrimony.
For example, Richardson openly told McCollum that she believed
McCollum was micromanaging the department and that her management
style was ineffective (C. St. ¶¶ 68-70). But at other times
Richardson also said that she appreciated McCollum's openness and
honesty and that she enjoyed working with McCollum because of her love for customer service (C. St. ¶ 75).
McCollum was more consistent in the messages she sent to
Richardson. Indeed Richardson herself thought that she could
never please McCollum (C. St. ¶ 66; R. Dep. 118):
I didn't receive anything from her but negativity.
Everything was always negative. Something was always
wrong. Something didn't get done to her expectations.
In one instance McCollum told Richardson she was concerned that
Richardson managed more by emotion than by reasoned judgment (C.
St. ¶ 51). On another occasion she informed Richardson that she
was not meeting the deadlines that were required of her (C. St. ¶
49). Yet when McCollum was out of the office she entrusted
Richardson with handling any matters that might crop up in her
absence (R. St. ¶¶ 50-51).
Beginning in 1999 CTA implemented a new model for employee
evaluations (R. St. ¶ 4). That system used a five-point scale to
assess each employee's performance annually (R. Ex. C):
5=Outstanding Individual is a truly exceptional
performance [sic], substantially
exceeding requirements in all major
4=Exceeds Expectations Individual consistently meets
performance standards and exceeds
requirements in many aspects of the job.
3=Meets Expectations Individual has performed a complete and
fully satisfactory job and has met major
responsibilities and/or goals in a
2=Needs Improvement Individual meets minimal performance
standards, but has room for improvements. Also applies to new
employees who may need additional
training or experience.
1=Unsatisfactory Individual exhibits unsatisfactory
performance. Substantial improvement is
required to continue in position.
Richardson received three evaluations under the new system.
Executive Vice President Jack Hartman ("Hartman") rated her work
as 2.5 for 1999, and Winston assessed her work as 2.3 for 2000
(C. St. ¶¶ 31, 35). Richardson's final performance evaluation was
completed by McCollum, who rated Richardson's work as 1.72 for
the period from August to December 2001 (R. Resp. ¶ 93; R. Ex. F;
C.R. Mem. 2 n. 2)
On March 8, 2002 based on a recommendation from McCollum
Richardson was suspended from active duty and was immediately
escorted off the premises (C. St. ¶ 100; C. Resp. ¶ 75). When
Richardson returned the following week she received a "Notice of
Discharge" (signed by Winston) that cited several reasons for
that termination decision: Richardson's failure to obey rules;
her abuse of company time and poor work performance; and her
general failure to use her best judgment when handling situations
that had arisen throughout the course of her employment (C. St.
¶¶ 12, 124).
After she was thus fired, Richardson filed a charge with EEOC,
claiming that her suspension and termination constituted
race-based and sex-based discrimination. After EEOC then issued a right to sue letter, Richardson filed this action (C. St. ¶ 9).
Richardson's Proof or Absence of Proof
In the absence of anything even remotely resembling the
proverbial "smoking gun," Richardson resorts to the familiar
burden-shifting model originally outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) in her attempt to avoid
summary judgment.*fn2 That approach first requires
Richardson to create a prima facie case by coming forward with
evidence sufficient for a reasonable jury to infer discrimination
(Johnson v. Nordstrom, Inc., 260 F.3d 727, 731 (7th Cir. 2001).
If Richardson can succeed in that task as to discrimination based
on either her race or her sex, the McDonnell Douglas model then
requires CTA to articulate a legitimate nondiscriminatory reason
for its conduct (id. at 731-32). If CTA does so, Richardson
must adduce enough evidence for a reasonable jury to conclude
that CTA's asserted justification was merely a pretext for
discrimination that it was actually motivated (at least in
part) by animus against Richardson as an African-American or as a
woman or both (id. at 732).
At the prima facie stage, one common formulation requires
Richardson to raise an inference of discrimination by showing that (1) she is a member of a protected class, (2) she was
performing her job reasonably according to CTA's legitimate
expectations, (3) she suffered an adverse employment action and
(4) at least one similarly situated employee not in her protected
class was treated more favorably (see, e.g., Wyninger v. New
Venture Gear, Inc., 361 F.3d 965, 978 (7th Cir. 2004); Haywood
v. Lucent Tech., Inc., 323 F.3d 524, 531 (7th Cir. 2003)). But
that formulation is not carved in stone (Leffel v. Valley Fin.
Servs., 113 F.3d 787, 793 (7th Cir. 1997); see also Marla
Swartz, "The Replacement Dilemma: An Argument for Eliminating a
Non-Class Replacement Requirement in the Prima Facie Stage of
Title VII Individual Disparate Treatment Discrimination Claims,"
101 Mich. L. Rev. 1338, 1352-57, 1360 (2003) (hereafter
"Swartz").*fn3 Because the sole purpose of the first
McDonnell Douglas step is to create an inference of
discrimination (Leffel, 113 F.3d at 792), the earlier-stated
four-factor test is only one way to reach that goal. Instead
Richardson could clear that hurdle by producing any evidence from
which a reasonable jury could logically infer discrimination (see Carson v. Bethlehem Steel Corp.,
82 F.3d 157, 158-59 (7th Cir. 1986) (per curiam)). In this instance she
simply has not done so.
True enough, Richardson is both African-American and a woman
(R. St. ¶ 1). And of course CTA's conduct in suspending and
eventually terminating her employment were adverse employment
actions (C. Mem. 11). But not even a shred of evidence links
those elements with a potential finding of discrimination, even
with the benefit of the most favorable inferences.
In her effort to support such an inference, Richardson first
asserts that she was meeting CTA's legitimate expectations. But
as the ensuing discussion demonstrates, CTA proffers an avalanche
of evidence that torpedoes any such contention.
Although Winston ultimately authorized Richardson's
termination, McCollum was the CTA representative who had directly
supervised her on a day-to-day basis before that dismissal (C.
St. ¶ 24). It is therefore McCollum's evaluations and impressions
and her potential (or actual) discriminatory biases that are most
relevant in determining whether Richardson can raise an inference
of discrimination (Schreiner v. Caterpillar, Inc.,
250 F.3d 1096, 1100 (7th Cir. 2001)).*fn4 Richardson's final performance evaluation (completed by
McCollum) includes many scathing remarks about Richardson's
performance and is the most comprehensive articulation of all
McCollum's concerns (C. St. ¶ 93; R. Ex. F). McCollum said there
that as a manager Richardson was a "major source of tension
within the work group." She observed that Richardson had
difficulty evaluating various situations and often made decisions
based on emotion instead of facts. She concluded that as a result
of those managerial shortcomings many members of Richardson's
staff were hesitant to discuss issues with her a problem that
increased the workload of other managers who were left to deal
with the fallout. McCollum went on to comment that Richardson did
not herself respond well to feedback or adequately accept
responsibility for the problems in her department. Generally
McCollum concluded that Richardson did "not exhibit the required
skill set necessary to be an effective manager" and did "not
consistently display professionalism nor model behavior that is
expected of a manager."*fn5 Little wonder, then, that
McCollum's overall evaluation found Richardson to fall far short
of even the marginal "meets the minimal performance standards"
Much of that criticism focuses on Richardson's interpersonal skills and management techniques, rather than on particularized
instances of flawed performance. But an employee's competence is
not measured solely by how well she performs specific articulated
duties of her job (see Oates v. Discovery Zone, 116 F.3d 1161,
1171 (7th Cir. 1997)). And that is even more true of a manager,
as to whom those more intangible qualities are the key to what
makes managers excel or fail to excel in their roles.
In response Richardson contends that despite McCollum's
evaluation she has still adduced enough evidence for a reasonable
jury to conclude that she was meeting CTA's legitimate business
expectations (R. Mem. 10-12). That is simply not so.
First, Richardson's own testimony that she was meeting CTA's
legitimate business expectations cannot itself raise a genuine
issue of material fact on that score especially in the face of
CTA's voluminous evidence to the contrary (Mills v. First Fed.
Sav. & Loan Ass'n of Belvidere, 83 F.3d 833, 843-44 (7th Cir.
1996)). To hold otherwise would essentially eviscerate the
legitimate-expectations prong of the prima facie case (Oates,
116 F.3d at 1172).
Equally flimsy is the documentary evidence that Richardson
believes contradicts CTA's evidence. Richardson relies primarily
on an evaluation by Winston, which led to her temporary promotion
to Acting General Manager of Customer Relations in 2000, to
contend that she was meeting CTA's legitimate business expectations (R. St. ¶¶ 20-27; C. Resp. ¶ 20). But even apart
from the fact that a current evaluation rather than an earlier
one tells whether Richardson was performing up to CTA's
expectations at the time of her dismissal (Karazanos v.
Navistar Int'l Transp. Corp., 948 F.2d 332, 336 (7th Cir.
1991)), it will be remembered that even for the year 2000 the
overall 2.3 evaluation given her by the selfsame Winston was that
she did not "meet expectations" far below the "3" level that
would denote that level of performance. Clearly Richardson's
evidence does not provide a basis for a reasonable jury to
conclude that she was meeting CTA's legitimate business
Despite her having failed on that score, Richardson might still
be able to dodge summary judgment by showing that she was
disciplined more harshly than other similarly situated employees
who were not African-American or women even if a reasonable
jury viewed her performance (like theirs) as unsatisfactory
(Flores v. Preferred Tech. Group, 182 F.3d 512, 515 (7th Cir.
1999)). But here Richardson cannot meet even that lesser
requirement, because each of her two attempts to compare herself
to a white male Manager of Budget Oversight Byron Yehling
("Yehling") and Supervisor of Customer Service Tom Marasovich
("Marasovich") is wholly unsuccessful (R. St. ¶ 80; C. St. ¶
127).*fn6 Two individuals are similarly situated in the discriminatory
discipline context if both "dealt with the same supervisor, were
subject to the same workplace rules, and engaged in similar
conduct" (Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 940
(7th Cir. 2003)). It takes only a brief side-by-side look to see
that Richardson strikes out as to each of the two asserted
First, as to Yehling, while Richardson's supervisor was
McCollum, Yehling reported to Dennis Milicevic (C. St. ¶ 135).
That alone could well scratch Yehling off of the
similarly-situated list (Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 618 (7th Cir. 2000)). But even if this Court were to
consider the more attenuated "connection" of Richardson and
Yehling based on each of them having been evaluated by Winston at
some point (Richardson in 2000 and Yehling in 1999) (C. St. ¶ 35;
R. Ex. I),*fn7 Richardson's effort at comparison is further
doomed by the absence of any indication that Yehling's
performance was anywhere near as consistently poor as
Richardson's. While they may have started with similarly unsatisfactory performance evaluations,
over the course of three years Yehling's evaluation score
steadily improved from 2.26 to 3.32 while Richardson's went in
the opposite direction: from 2.5 to 1.72 (C. St. ¶¶ 31, 35, 93;
R. Ex. I-K). At the relevant moment of comparison just before
Richardson's termination Yehling was outperforming Richardson
dramatically (Karazanos, 948 F.2d at 336).*fn8
Richardson fares no better vis-a-vis Marasovich. First, the two
had different supervisors: Marasovich was supervised not by
McCollum but by Richardson herself (C. St. ¶ 127). Moreover, the
conduct of the two employees does not match up at all. While
Richardson exhibited a whole slew of problems documented in her
performance evaluations, she has not produced any evidence about
how Marasovich fared on any of his evaluations. Instead her only
evidence about Marasovich's conduct indicates that any brief
performance problems Marasovich may have exhibited in the past
were quickly addressed by transferring him to a more suitable
environment than the call center (C. St. ¶¶ 84-86, 129).*fn9 Along another line (although never quite fully explained),
Richardson appears to argue that it was incumbent on CTA to
discipline her according to its Corrective Action Guidelines
("Guidelines") and that its failure to do so raises enough of an
inference of discrimination to sustain her prima facie case (R.
Aff. ¶ 4; R. Ex. B). With Richardson having failed to develop
that contention in any meaningful way, it is not this Court's
responsibility to do so for her. It has nonetheless considered
the matter and finds the argument empty as well (among numerous
other reasons, because of the total absence of any comparable
employees who received disparate treatment).
In sum, Richardson is plainly unable to create her prima facie
case via the conventional four-factor test. Perhaps recognizing
(though not admitting) that, she also ventures on a few different
tacks in her attempt to raise an inference of discrimination.
Richardson first contends that at least as to her sex
discrimination claim, she need not satisfy the similarly-situated
aspect of her case because she was replaced by a man
(parenthetically, also African-American) (R. Mem. 10). That is just plain wrong. While the fact of such replacement could
potentially help raise an inference of sex discrimination under
some circumstances, it is "neither a sufficient nor a necessary
condition" to Richardson's prima facie case and absent other
probative evidence does not really advance the ball toward her
goal (C. St. ¶ 125; Carson, 82 F.3d at 159; Swartz, 1338 Mich.
L. Rev. at 1346-47).
Lastly, Richardson asserts that CTA's decision to escort her
off of the CTA premises immediately following her suspension is
evidence of sex discrimination sufficient to maintain her prima
facie case (R. Resp. ¶ 107; C. St. ¶ 112). But it is a real non
sequitur to suggest that such conduct on CTA's part (at least
without meaningful further linkage) plausibly supports
Richardson's discrimination claim.
All in all, Richardson's effort to ascribe everything of an
unfavorable nature that she has endured to the fact that she is
African-American or a woman or both is a classic demonstration of
Alexander Pope's famous aphorism:*fn10
All seems infected that th' infected spy, As all
looks yellow to the jaundic'd eye.
There is no question that Richardson and McCollum had a highly
contentious working relationship characterized by negative
interactions and almost daily personality conflicts. But this case is not about whether McCollum was a good manager or a
terrible manager, or whether she was helpful or hostile to her
subordinates, or even whether she liked or didn't like
Richardson. What Richardson appears to have forgotten (or more
likely would have this Court forget) is that this case is only
about whether CTA (as evidenced by the actions of McCollum or any
other CTA actor) discriminated against Richardson on account of
her race or sex when it made the decision to terminate
Because Richardson has fallen at the threshold hurdle of the
prima facie case, there is no occasion to continue with the
McDonnell Douglas burden-shifting analysis (Cerutti,
349 F.3d at 1061). Nonetheless it is worth noting briefly that CTA has
proffered a patently legitimate reason for its decision to
terminate Richardson her abundant shortcomings in the
performance of her job duties, as best evidenced by her
deteriorating performance evaluations (C. St. ¶ 93; C. Mem. 14).
And Richardson has not even hinted at why or how that reason is
unworthy of credence or at how CTA's decision was motivated by
discrimination (Nawrot v. CPC Int'l, 277 F.3d 896, 905-06
(7th Cir. 2002)). Conclusion
In the absence of any evidence probative of race-based or
sex-based discrimination, no reasonable jury could rule in
Richardson's favor. Because there is thus no genuine issue of
material fact, CTA is entitled to a judgment as a matter of law.
Its Rule 56 motion is therefore granted, and this action is