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August 17, 2004.

CHERRIE L. GAGE, Plaintiff,

The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District


Plaintiff Cherrie Gage ("Gage") filed a four-count amended complaint against Defendant Metropolitan Water Reclamation District of Greater Chicago ("District") alleging it violated Title VII, 42 U.S.C. § 2000e, et seq. ("Title VII") and 42 U.S.C. § 1983. Defendant has moved for summary judgment. For the reasons stated below, we deny in part and grant in part Defendant's motion for summary judgment.


  Cherrie Gage has worked for the Metropolitan Water Reclamation District for fifteen years. The District, a unit of local government, provides sewage treatment and related services for the greater part of Cook County, Illinois. The District is made up of the following departments: Maintenance and Operations ("M&O"), Research and Development ("R&D"), Finance, Information Technology, General Administration, Engineering, Purchasing, Treasury, and Law. Nearly all of the District's positions are categorized as civil service and are subject to a competitive examination. Once one successfully completes an examination for a position, a list of potential candidates for the position is posted. The list pools applicants into groups based on exam performance. The General Superintendent of the District then can appoint candidates for a position from the group containing employees who scored the highest on the examination. When an individual is appointed to a civil service position, "[a]ppointments shall be on probation for a period fixed by the rules . . ." (Defendant's Local Rule 56.1 Statement ("Def. LR 56.1") ¶ 6). Probation constitutes a working test period during which an employee can be evaluated to determine if she can perform the duties of the position satisfactorily. If, at any time during the probationary period, it is determined that the employee "cannot or will not adequately or satisfactorily perform the duties of the position if given permanent employment," the District's General Superintendent, with the approval of the Director of Personnel, may discharge the probationary employee. (Def. LR 56.1 ¶ 8). No appeal of the decision is permitted. Once an employee satisfactorily completes probation, however, she is considered to have attained civil service status and shall not be discharged except for cause. She also may have an opportunity to be heard before the District's Civil Service Board.

  Cherrie Gage graduated from the University of Chicago in 1987 with an economics degree. She subsequently earned an MBA and Masters in Public Management from Keller Graduate School. (Plaintiff's Local Rule 56.1 Statement ("Pl. LR 56.1") ¶ 1). She was hired by the District in 1989 as an administrative assistant/secretary to the Commissioner. In 1991, she was appointed to a Management Analyst I ("MAI") position in the M&O Department. (Def. LR 56.1 ¶ 11). At the District, there is a career track from the position of MAI to Management Analyst IV. In 1995, Gage was transferred from the M&O Department to an MAI position in the R&D Department. (Def. LR 56.1 ¶ 12). Gage received positive reviews for her work while in the MAI position. (Pl. LR 56.1 ¶ 9). Gage was appointed to an MAII position in R&D in 1999 and completed her probationary period on January 1, 2000. She received a rating of "Exceeds Standards" for her work in 1998 and 1999. (Pl. LR 56.1 ¶ 11). Gage passed the required examination and was appointed to an MAIII position in M&O on November 17, 2000. The probationary period for the MAIII position is one year. (Def. LR 56.1 ¶ 15).

  As an MAIII, Gage was assigned to the position of Manager of the Contract Payments Unit ("CPU") of M&O. Her direct supervisor was Michael Bland Bland, an MAIV, has worked for the District since 1977. As Gage's supervisor, Bland was responsible for evaluating Gage's work as an MAIII and completing reports on her service throughout her year-long probationary period. Bland, who is white, supervised three units in M&O: CPU, Budget Management, and Staffing. The other two units were headed by white females. Gage is African-American. Gage took over the CPU position from Karen Sizemore, a white female, who had been performing the job as the CPU Manager in an "acting capacity." Sizemore was an MAII. Bland had recommended Sizemore for permanent appointment to the MAIII CPU Manager position, but upper management did not follow his recommendation. Bland acknowledged he was displeased that Sizemore did not receive the MAIII CPU Manager position. (Pl. LR 56.1 ¶ 22). According to Delores Stewart, an employee in the CPU division, Bland told Stewart, "It's not what I want. I have to deal with it. I know what I have to do about it." (Pl. LR 56.1 ¶ 85). Bland denies making this statement.

  As Manager of CPU, Gage was responsible for, inter alia, reviewing and processing payments, change orders, and rate adjustments; conducting administrative investigations; and resolving problems that arose regarding payments on contracts. (Def. LR 56.1 ¶ 17). On Gage's first day, Bland told her, "You are a beautiful woman. No. You are a beautiful black woman, but that's not what you are being evaluated on." (Pl. LR 56.1 ¶ 57). The following day, Gage notified Bland that she was disturbed by his comment and felt that she had accomplished what she had based on hard work, not her race. According to Gage, Bland responded that he had grown up on a farm and claimed that he did not mean the statement offensively. Bland testified that he apologized to Gage for making the statement. He testified it was "a frustration statement" even though he acknowledged that Gage had not mentioned her race or done anything to suggest Gage thought she would be evaluated based on her race. (Pl. LR 56.1 ¶¶ 71-72).

  Following this conversation, and on his second day of supervising Gage, Bland began maintaining a log of notes documenting Gage's whereabouts, work hours, and other activities. (Pl. LR 56.1 ¶¶ 153-154). He documented what had occurred between Gage and him on her first day, but omitted his comment about Gage being a beautiful black woman. (Pl. LR 56.1 ¶ 163). When asked about the log at his deposition, Bland testified that he kept the log because something "appeared to be turned around from a compliment to all of a sudden becoming disturbing the next day." He explained, "being a supervisor of many years I had the little, oh-oh, something is not right here." (Pl. LR 56.1 ¶ 154). Bland testified that he would make entries in the log because it was something he wanted to remember for a reason. (Pl. LR 56.1 ¶ 156). Bland did not keep log notes on the other managers he supervised, Elizabeth Collins (MAIII) or Linda Dunlap (Senior Personnel Analyst), both white females, or Karin Sizemore, the white female MAII who held Gage's position in an acting capacity before Gage was appointed. (Pl. LR 56.1 ¶ 272).

  According to Gage, Bland informed her she needed to report to him whenever she left her desk for any reason. Bland denies he did so. According to Delores Stewart, a principal clerk stenographer who worked for Bland from 1997 to 2002, Bland asked her to monitor Gage's activities and notify him any time Gage left her work station, including going to the bathroom. Stewart testified that Bland did not ask her to watch non-minorities in that way. Bland denies asking Stewart to monitor Gage. According to Stewart, when Stewart asked Bland why Gage was being singled out, Bland told her to also watch Jackie Lee, another African-American, who was Gage's administrative assistant. (Pl. LR 56.1 ¶ 138). Jackie Lee and Patricia Harmon observed Bland monitoring Gage on a daily basis. (Pl. LR 56.1 ¶ 141). Bland denies doing so. Bland does acknowledge that he did not monitor non-minority employees in this manner or ask Stewart to monitor non-minority employees. (Pl. LR 56.1 ¶¶ 136-7). Gage also reported that Bland berated and yelled at her. (Pl. LR 56.1 ¶ 228). Bland admits that he and Gage had heated discussions. See, e.g., id. ¶ 86.

  Gage contends she was treated differently than non-minority employees who worked for Bland in other ways as well. For instance, Gage contends she was not permitted to attend training necessary to assist her in performing her job as an MAIII. The District denies this accusation. Gage also alleges that she was denied the support staff she needed to accomplish her tasks as CPU Manager. She explains that Sizemore, who typically would have reported directly to Gage, was transferred by Bland to a different unit. According to Stewart, she assisted the CPU Manager with contract payments before and after Gage's tenure, but Bland instructed Stewart not to assist Gage or Lee in any manner.*fn2

  During the first three months of Gage's probationary period as an MAIII, November 2000 through February 2001, Bland evaluated Gage's performance. The pre-printed evaluation form, which Bland used to assess Gage's performance, contains the following categories on which employees are rated: Punctuality and Attendance, Employee Contacts, Quality of Work, Volume of Acceptable Work, Supervisory Control, and Overall Evaluation. (Pl. LR 56.1 ¶ 316). The employee may be rated on a scale that includes (from best to worst): Outstanding, Exceeds Standards, Meets Standards, Requires Improvement, and Not Satisfactory. (Pl. LR 56.1 ¶ 317). Gage received an overall rating of "Requires Improvement." In the specific categories, Bland determined that Gage required improvement in her quality of work, volume of acceptable work, and employee contacts. He concluded that she met standards for attendance and supervisory control. Gage, who disagreed with the substance of her evaluation, composed a written response. She sent her response to the District's Director of Personnel as well as to the Chief of M&O, the Assistant Chief Engineer, and Bland She also wrote a letter on February 22, 2001 to Frances Wilkins, the District's Equal Employment Officer, raising her concerns about Bland's evaluation.

  On May 1, 2001, Gage received an oral warning from Bland for failure to follow his instructions. She recalls receiving the warning for not being present at her desk when Bland was looking for her. Gage submitted an e-mail message she sent Bland on May 1, 2001 to notify him that she had been meeting with Mr. Neubauer from the Purchasing Department from 1:00 p.m. until 1:44 p.m. on May 1, 2001. (Pl. LR 56.1 ¶ 299). Bland admits that he gave Gage an oral warning, but he could not remember the specific basis for this warning. His log reports that her warning was for "being away from her work area for an extended time." (Pl. Ex. 16).

  Gage received a similar evaluation from Bland on her six-month performance review, which covered the time period from February 18, 2001 through May 17, 2001. Again, she received an overall evaluation rating of "Requires Improvement" and the rating in each category was exactly the same. Gage refused to sign her evaluation. Following that review, Gage met with the Chief of M&O, Thomas O'Connor, to inform him she felt that Bland was unfairly rating her and told him about Bland's comment on her first day of work. She also wrote a response to Bland's six-month evaluation, sending a copy of her response to O'Connor and Bland's other supervisors.

  According to O'Connor, sometime later in May, 2001, as a result of Gage's written responses to Bland's three and six-month evaluations and his meeting with Gage, O'Connor discussed Gage's complaints with Matthew Menze, the Director of the District's Personnel Department. O'Connor asked Wilkins, the District's Equal Employment Officer, to inquire into the disputed performance reports.

  Later, on her nine-month evaluation, dated July 6, 2001, Gage again received an overall rating of "Requires Improvement." Her ratings in each subcategory were the same as the prior two evaluations. Gage again composed a response to the evaluation on August 23, 2001, dated August 31, 2001. In that August 31 response, she stated that Bland's behavior since her first day had been nothing less than discriminatory and harassing. (Def. LR 56.1 ¶ 13). On August 31, Bland prepared a written warning for Gage because she had remained in the office building past 4:45 p.m. to compose her response on August 23. He then issued an oral warning on September 7, 2001 for her August 23 alleged transgression. (Pl. LR 56.1 ¶ 307). He stated she violated the "Cargill memorandum", a memorandum authored by Gregory Cargill, the Assistant Chief Engineer, which set the official work hours as 8:45 a.m. to 4:45 p.m. The memorandum explained that employees required permission to be in the building outside of official work hours. According to Gage, other white employees often stayed past the posted work hours without incident. Lee and Harmon also testified that Bland allowed white employees to work outside the posted hours.

  Pursuant to O'Connor's request, Equal Employment Officer Wilkins conducted an inquiry into Bland's three-month and six-month performance evaluations of Gage. As part of her investigation, Wilkins interviewed Gage, Bland and Cargill, one of Bland's supervisors. On September 19, 2001, Wilkins issued her report outlining her inquiry into Gage's complaints. Wilkins sent her report to the Director of Personnel, Matthew Menze. Her report concluded that Gage's work volume rating for the first three months did not take into consideration the fact that Gage had actually worked only the last six weeks of the first three-month rating period. Accordingly, it was to be expected that Gage's overall work volume would be quite low, as compared to an employee who worked all twelve weeks. Wilkins found that Bland's failure to take account of that disparity was improper. Wilkins determined, however, that the other ratings Gage received did not warrant a change.

  Later, on September 25, 2001, Wilkins responded to Gage's August 31 evaluation response. As noted above, that written response also included an accusation of discrimination and harassment by Bland By letter, Wilkins informed Gage that GS Directives 98-6 and 00-1 provide for counseling, investigation and informal resolution of complaints of harassment. See Pl. Ex. 60. Wilkins attached both directives and the Discrimination and Harassment Complaint Filing Forms to her letter and suggested that Gage use the forms should she wish to file a complaint.

  On October 31, 2001, Bland completed his one-year report on Gage's performance during her probationary period. Bland rated her overall performance as "Not Satisfactory." (Def. LR 56.1 ¶¶ 60-61). Specifically, he stated that her work was not satisfactory with regard to her employee contacts and her low quality and volume of acceptable work. He explained that she made numerous errors; she required an inordinate amount of supervisory review; and she failed to timely complete investigations, develop contract change order training materials, and conduct training in the field. (Def. LR 56.1 ¶¶ 63-66). In terms of employee contacts, Bland stated that she failed to demonstrate the ability and willingness to follow her supervisor's (Bland's) instructions. Bland recommended Gage's probationary appointment be terminated.

  Bland met with his supervisor, Gary Ziols, Assistant Chief Engineer, about his recommendation for Gage's termination and Ziols approved the recommendation. Ziols then met with his supervisor, O'Connor, who signed off on the recommendation. Subsequently, O'Connor met with the District's ...

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