United States District Court, N.D. Illinois, Eastern Division
LINDA L. BEAMON, Plaintiff,
HEWITT ASSOCIATES, LLC, Defendant.
The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Linda L. Beamon filed a one-count employment
discrimination complaint against Defendant, Hewitt Associates,
LLC ("Hewitt"), alleging retaliation under the Civil Rights Act
of 1964, 42 U.S.C. § 2000(e) (Title VII). Hewitt has moved for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure.*fn1 For the following reasons, Hewitt's
motion is granted.
A. The Parties
Plaintiff was employed by Hewitt from August 2000 to November
2001 as a customer service associate ("CSA"). As a CSA, Plaintiff
administered health and retirement benefit plans to Hewitt's
clients. Initially, Plaintiff worked on a client team serving
Morgan Stanley, but because that team was phased out, Plaintiff
transferred to a client team serving Xerox Corporation in February 2001. Plaintiff was trained to use the
policies and procedures specific to Morgan Stanley and later to
B. Plaintiff's Supervision Under Steve Bryant
When Plaintiff transferred to the Xerox client service team she
remained under the supervision of Sarah Raines through April
2001, and in May 2001 Steve Bryant became her supervisor. While
under Mr. Bryant's supervision, Plaintiff was rated on a monthly
basis by a coach who would monitor her calls. Her scores were
based on (1) the accuracy of the information she provided to the
caller, and (2) the manner in which she communicated with the
caller, a performance factor referred to as "MAGIC," which stands
for "Making A Good Impression on the Customer." MAGIC skills
entail greeting a caller appropriately, using a caller's name
throughout the call, and thanking the caller at the end.
Hewitt's supervisors are expected to review their associates
once a month to discuss their performance. Mr. Bryant met with
Plaintiff in May 2001 and told Plaintiff that her MAGIC and
accuracy scores were unsatisfactory and that she needed to
improve her scores immediately. (Bryant Decl. ¶ 18.) However,
Plaintiff responded that she had never been given formal training
in MAGIC skills at the time of this review and her former
supervisor, Ms. Raines, had informed Mr. Bryant of this fact.
(Beamon Dep. at 36-37, 42-44.)
Mr. Bryant did not meet with Plaintiff in June 2001, stating
that they could not meet because Plaintiff was on vacation during
the scheduled meeting. (Bryant Decl. ¶ 19.) Mr. Bryant did meet
with other Xerox employees on a monthly basis. (Pl.'s Am. Resp.
to Local R. 56.1 Stmt. ¶ 18.) In July and August of 2001, Plaintiff met with Mr. Bryant for
their monthly performance meetings. In July 2001 Mr. Bryant
informed Plaintiff her MAGIC scores were very low, though her
accuracy scores were improving. (Bryant Decl. ¶ 20.) Plaintiff
had still not yet been properly trained on MAGIC skills. At their
August 2001 meeting, Mr. Bryant informed Plaintiff that she was
still performing at a below satisfactory level. (Bryant Decl. ¶
21.) Mr. Bryant then claims he arranged for additional coaching
to help Plaintiff improve. (Id.) However, Plaintiff did not
receive a coach until October 2001 when she was placed on the
performance improvement plan. (Beamon Dep. at 46.) Mr. Bryant did
not meet with Plaintiff during the month of September 2001.
C. Performance Improvement Plan
On October 16, 2001, Plaintiff was placed on a sixty-day
performance improvement plan because she was still having
problems with her MAGIC skills. Plaintiff reminded Mr. Bryant she
had not received a coach pursuant to their August 2001 meeting
and a coach was assigned to provide additional training and
information regarding how she could improve her phone calls. The
coach sat with Plaintiff approximately one hour a week, listened
to her calls and provided immediate review. Plaintiff now also
met once a week with Mr. Bryant so that he could closely monitor
her performance and improvement rate.
D. Security Policies
At a Xerox team meeting in August 2001, months before Plaintiff
fielded a similar call, Mr. Bryant informed the team that an
employee had transferred funds without verifying a caller's password and that this mistake had cost Hewitt's client, Xerox, a
lot of money. (Beamon Dep. at 113.) At this meeting Mr. Bryant
stated that if these mistakes continued to occur, people would
get written up and it would be held against them on their
On October 17, 2001, Brian Doyle, one of Hewitt's senior
executives, sent an email to all associates, including Plaintiff,
which emphasized the importance of maintaining security of the
confidential information of their clients' employees. This email
stated that all associates were to follow the current security
procedures and if an associate did not know what the procedures
were, he was to contact his manager.
In Plaintiff's case, the security policy to which she was
subject was the Xerox Security Policy dated October 1, 2001,
which requires Xerox participants to provide their Social
Security number and passwords (PIN) in order to access
confidential information or to process transactions on the
internet or through IVR, the automated voice-response system.
(Bryant Decl. ¶ 16.) This security policy, although drafted by
Xerox, was distributed to Hewitt's employees on Hewitt
letterhead. (Beamon Dep. Ex. 3.)
At her deposition, Plaintiff confirmed her knowledge of the
information contained in the October 1, 2001 Xerox Security
Policy. Plaintiff explained that Xerox's security policy required
a participant to manually enter his Social Security number and
PIN on his telephone keypad before he could speak with a Hewitt
CSA regarding specific information about his account. If the
caller did not have his Social Security number and PIN, a CSA
could only provide general information. A CSA was immediately
aware of whether a Xerox employee had manually entered his PIN
before the call was routed to the CSA because when the CSA pulled
up the caller's information on her computer screen, the screen
would appear white if the caller had already entered his PIN into the phone system. The CSA's screen would be
red if the caller had not entered his PIN, and the CSA would see
a prompt reminding the CSA to request the information. (Beamon
Dep. at 108-09, 112; Bryant Decl. ¶ 10-11.)
E. Security Breach
On November 12, 2001, Plaintiff fielded a call from Mr. Waxman,
a Xerox plan participant, and helped him complete the transaction
he had initiated online. Plaintiff stated that she did not ask
for Mr. Waxman's PIN because Mr. Waxman would not have access to
his account online if he had not entered his PIN and his Social
Security number online, and because Mr. Waxman's call would not
have been routed to her if he had not already entered his PIN
into the phone system. (Beamon Dep. at 105-06, 108.) Plaintiff
assisted Mr. Waxman by telling him the steps he should go through
to transfer his funds into the Money Market Fund using the online
system. However, Plaintiff then discovered that Mr. Waxman had
never invested in the Money Market Fund before, so she asked him
to logout because she believed there may be procedures she, as
the CSA, would have to complete the first time he used the Money
Market Fund. (Beamon Dep. Ex. 3 at 3-4.) Mr. Waxman logged out of
his account online and remained on the phone while Plaintiff
proceeded to direct his future contributions from one fund to
another. The evidence shows that at no time during this phone
call did Plaintiff verify any of Mr. Waxman's personal or
identifying information except for his Social Security number.
(Beamon Dep. Ex. 3 at 2; Bryant Decl. ¶ 27.) Plaintiff responds
that because Mr. Waxman had accessed his online account by
manually entering his PIN and Social Security number, that was
sufficient to satisfy Xerox's security policy. (Beamon Dep. Ex. 2
at 1.3.) Two days after this initial call, Mr. Waxman called again
inquiring as to why his accounts did not reflect the changes he
requested on November 12, 2001. (Bryant Decl. ¶ 26.) In response
to this call, Mr. Bryant requested a tape recording of the
November 12, 2001 call. (Id. ¶ 27.) After reviewing the call, Mr.
Bryant determined that Plaintiff failed to confirm the caller's
PIN and failed to transfer the entire fund balance per the
caller's request, but merely redirected future contributions into
the new fund. (Id.) Based on Plaintiff's failure to verify the
caller's PIN before directing contributions into a different
fund, Mr. Bryant determined that Plaintiff had violated both
Xerox and Hewitt's security policies. He then informed Sara
Norman, a Human Resources employee, that he had determined that
Plaintiff had breached security. Ms. Norman agreed with Mr.
Bryant's assessment that Plaintiff had violated Xerox and
Hewitt's security policies. (Id. ¶ 29.) On November 20, 2001, Mr.
Bryant and Ms. Norman terminated her employment. (Beamon Dep. at
F. Sexual Harassment Complaint Against Steve Bryant
Deborah Racic, one of Plaintiff's co-workers, initiated a
sexual harassment complaint against Mr. Bryant with Hewitt's
Human Resources Department. (Racic Decl. ¶ 3-4; Beamon Dep. at
79-80.) Ms. Racic met multiple times with Ms. Norman regarding
her complaint and discussed the issues involving her sexual
harassment claim. (Racic Decl. ¶ 4.) Ms. Racic informed Human
Resources that she felt sexually harassed by Mr. Bryant's
"behavior of intimidation, hostile conduct, and that it was
interfering with [her] work performance." (Id. ¶ 5.) Ms. Reker
felt that Mr. Bryant's "actions were clear, he displayed himself
as [a] man that was stronger and dominating over [her] as a
woman." (Id.) Ms. Norman told Ms. Racic that Human Resources would investigate her harassment claim. (Id. ¶ 7.) Ms.
Racic told Human Resources to speak with Plaintiff because
Plaintiff was a witness to the harassment. (Id. ¶ 7, 12.) Ms.
Reker did eventually file an EEOC complaint against Hewitt. (Id.
¶ 11.) She was also subsequently terminated while out on
disability. (Id. ¶ 10.)
In the middle of June 2001, as part of its investigation of Ms.
Racic's complaint, Human Resources required Plaintiff to share
her knowledge of the alleged events between Ms. Racic and Mr.
Bryant. Plaintiff was willing to cooperate, but wanted to remain
neutral in the matter. (Pl.'s Am. Resp. to Local R. 56.1 Stmt. ¶
2a.) Ms. Norman provided Plaintiff with a copy of Hewitt's
Harassment and Discrimination Policy Statement and also told
Plaintiff she could be terminated if she did not cooperate. (Id.;
Norman's EEOC Statement.) Plaintiff reluctantly spoke with Ms.
Norman on June 18, 2001. (Beamon Dep. at 81; Norman's EEOC
There is no evidence that Mr. Bryant knew what questions were
asked or what answers were given during Plaintiff's meeting with
Ms. Norman. (Bryant Decl. ¶ 33.) Ms. Norman, however, spoke with
Ms. Racic and Mr. Bryant about Ms. Racic's complaints before
speaking with Plaintiff for the express purpose of further
investigating Ms. Racic's complaints. (Beamon Dep. at 90-91.) Mr.
Goemans, another CSA supervised by Mr. Bryant, also spoke with
Ms. Norman about Ms. Racic's complaint. Mr. Bryant knew that both
Plaintiff and Mr. Goemans spoke with Human Resources during their
investigation of Ms. Racic's complaint, and in fact arranged
their schedules so that they could talk with Ms. Norman about the
harassment allegations. (Bryant Decl. ¶ 32-33.) Ultimately,
Hewitt determined that Mr. Bryant had not engaged in harassment.
(Bryant Decl. ¶ 34.) Mr. Bryant was not disciplined for Ms.
Racic's complaint. (Keating Decl. ¶ 9; Bryant Decl. ¶ 34.) G. Security Breaches by Other Employees
Winfred Richmond, one of Plaintiff's co-workers, was given
warnings after two security breach violations, and was not
terminated until after his third breach. (Beamon Dep. at 117.)
However, prior to Plaintiff's termination, Hewitt terminated
approximately twenty-two other employees for violating client
security policies. (Keating Decl. ¶ 7.) Neither Plaintiff nor
Hewitt provide any additional information regarding the
circumstances surrounding these twenty-two discharges. The record
is devoid of any evidence regarding whether these alleged
security violations pertained to transfer of funds, when they
occurred, whether the employees were given warnings, or whether
these employees had a similar position and performance record as
A. Summary Judgment Standard
Summary judgment is appropriate when the record shows "that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law."
Fed.R.Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Sinkler v. Midwest Prop. Mgmt., Ltd., 209 F.3d 678,
683 (7th Cir. 2000). In determining whether summary judgment is
appropriate, the Court must view the evidence, and draw all
reasonable inferences therefrom, in the light most favorable to
the non-moving party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); Kennedy v. United States, 965 F.2d 413,
417 (7th Cir. 1992). However, if the non-movant bears the burden
of proof on an issue he or she may not simply rest on the
pleadings, but rather must affirmatively set forth specific facts
establishing the existence of a genuine issue of material fact.
See Celotex, 477 U.S. at 322-26. Summary judgment is appropriate when the non-moving party
"fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Id. at 322. If
taking the record in its entirety cannot lead a rational trier of
fact to find for the non-moving party, then there is no genuine
issue for trial and summary judgment must be granted. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
Hewitt argues that Plaintiff cannot establish a prima facie
case of retaliation and thus claims it is entitled to summary
judgment as a matter of law. Hewitt also argues that even if
Plaintiff can establish a prima facie case, Hewitt has provided
a legitimate nondiscriminatory reason for terminating Plaintiff's
employment and Plaintiff cannot prove this reason was merely a
Under Title VII, it is "an unlawful employment practice for an
employer to discriminate against any of his [employees] . . .
because [the employee] has opposed any practice made an unlawful
employment practice by this subchapter, or because [the employee]
has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this
subchapter." 42 U.S.C. § 2000e-3(a). A plaintiff has two distinct
methods of defeating summary judgment when alleging retaliation;
the direct method or the indirect method, also known as the
McDonnell Douglas burden-shifting method. Stone v. City of
Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.
2002). Under the direct method a plaintiff must show either
through direct or circumstantial evidence that she engaged in
protected activity and as a result suffered the adverse employment action of which she
complains. Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 938-39
(7th Cir. 2003). "Direct evidence essentially requires an
admission by the decision-maker that his actions were based on
the prohibited animus." Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 616 (7th Cir. 2000). Circumstantial evidence is evidence
that allows a jury to infer intentional discrimination by the
decision-maker. Rogers v. City of Chicago, 320 F.3d 748, 753
(7th Cir. 2003). In the present case, Plaintiff's evidence does
not meet the direct method standard and thus her Title VII claim
must proceed under the McDonnell Douglas burden-shifting
method. See also O'Regan v. Arbitration Forums, Inc.,
246 F.3d 975, 983 (7th Cir. 2001).
Under the McDonnell Douglas burden-shifting method Plaintiff
must show that: (1) she engaged in a statutorily protected
activity; (2) she was performing her job in a satisfactory
manner; (3) she suffered an adverse employment action; and (4)
she was treated less favorably than any other similarly situated
employee who did not engage in the protected activity. See
Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir.
2002). A failure to satisfy any element of the prima facie case
will prove fatal to Plaintiff's retaliation claim. See id.
Even if Plaintiff proves all of these elements, Hewitt has a
chance to win at summary judgment if it presents evidence of a
non-invidious reason for the adverse action. See Hilt-Dyson,
282 F.3d at 465; Stone, 281 F.3d at 644. However, once Hewitt
comes forward with a legitimate, nondiscriminatory reason for
terminating Plaintiff's employment, the burden of production
shifts back to Plaintiff to show that Hewitt's reason is
pretextual. See Hilt-Dyson, 282 F.3d at 465. If Plaintiff
cannot show that Hewitt's reason is pretextual, Hewitt's motion
for summary judgment will be granted. 1. Plaintiff Was Engaged in a Protected Activity.
Hewitt contends that Plaintiff did not establish a prima
facie case of retaliation because she failed to show that she
engaged in a statutorily protected activity. Hewitt argues that
while Plaintiff knew Ms. Racic's complaint was due to alleged
harassment Plaintiff did not know it was related to sexual
harassment and in fact, Hewitt maintains that the complaint was
never based on sex. The Court finds that Plaintiff was involved
in a protected activity because she reasonably believed Ms.
Racic's complaint was protected under Title VII.
Employers are not allowed to retaliate against employees who
complain about discrimination or other practices that violate
Title VII. 42 U.S.C. § 2000e-3(a); Sitar v. Indiana Dep't of
Transp., 344 F.3d 720, 727 (7th Cir. 2003); Miller v. Am.
Family Mut. Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000). Even
if the challenged practice does not actually violate Title VII,
an employee may engage in statutorily protected expression if she
reasonably believes she is challenging conduct that is in
violation of Title VII. Dey v. Colt Const. & Dev. Co.,
28 F.3d 1446, 1457-58 (7th Cir. 1994). Therefore, Plaintiff is not
required to show that the underlying complaint actually involved
sexual harassment under Title VII, because she is protected from
retaliation if: (1) subjectively Plaintiff had good faith belief
that her involvement opposed a practice prohibited under Title
VII, and (2) her belief was objectively reasonable that her
involvement in the alleged sexual harassment investigation is
protected under Title VII. See Hamner v. St. Vincent Hosp. &
Health Care Ctr., Inc., 224 F.3d 701, 707 (7th Cir. 2000);
Dey, 28 F.3d at 1457-58.
Plaintiff's involvement in Ms. Racic's sexual harassment
complaint against Mr. Bryant constituted a protected activity
because Plaintiff subjectively believed she was participating in
a complaint of sexual harassment, and her belief was objectively
reasonable. Ms. Racic had filed a sexual harassment complaint
against Mr. Bryant with Hewitt's Human Resources Department and
later filed a complaint with the EEOC. While investigating Ms.
Racic's complaint, Ms. Norman from Human Resources contacted
Plaintiff and asked to meet with her to discuss Ms. Racic's
various allegations against Mr. Bryant. In response to Human
Resources's inquiries Plaintiff corroborated Ms. Racic's story.
Filing a sexual harassment complaint and participating in its
investigation are protected activities under Title VII.
42 U.S.C. § 2000e-3(a). "[A]n employee need not use the magic words `sex'
or `gender discrimination' to bring her speech within Title VII's
retaliation protections. . . ." Sitar, 344 F.3d at 727.
However, the employee must "at least say something to indicate
her [gender] is an issue." Miller, 203 F.3d at 1008. It was
reasonable for Plaintiff to think that her involvement in the
investigation was protected activity, especially because Ms.
Norman provided Plaintiff with a copy of Hewitt's discrimination
policy, which discusses and forbids, inter alia, sexual
Hewitt contends that even if Plaintiff can prove she engaged in
a protected activity she cannot prove Mr. Bryant knew the reason
Plaintiff spoke with Human Resources and "in order for the
employer to retaliate, it must be aware of the employee's
statutorily protected expression." Kaminski v. Freight-A-Ranger,
Inc., 01 C 4937, 2002 WL 31174461, at *6 (N.D. Ill. Sept. 30,
2002); Miller, 203 F.3d at 1008 (employer cannot retaliate when
it is unaware of any complaints). In this case, Mr. Bryant knew
about Ms. Racic's complaint against him and Human Resources had
already spoken with Mr. Bryant while investigating Ms. Racic's
complaint. Ms. Norman also spoke with Mr. Bryant, at Plaintiff's
request, to get his permission to speak with Plaintiff during her shift. Mr. Bryant allowed Plaintiff to speak
with Human Resources and arranged to have another employee cover
Plaintiff's calls during the meeting. The logical conclusion to
the chain of events listed above is that Mr. Bryant knew
Plaintiff spoke with Human Resources regarding Ms. Racic's
complaint of sexual harassment against him.
Therefore, based on the evidence in the record and taking the
facts in the light most favorable to Plaintiff, the Court finds
that Plaintiff engaged in a protected activity under Title VII.
2. Plaintiff Did Not Perform Her Job in a
Next, the second element Plaintiff must establish in order to
prove her prima facie case of retaliation is that she performed
her job in a satisfactory manner. See Hilt-Dyson,
282 F.3d at 465; Stone, 281 F.3d at 644. Because Plaintiff cannot
demonstrate that she was meeting her employer's legitimate
employment expectation at the time of termination, her
retaliation claim is doomed. See Peele v. Country Mut. Ins.
Co., 288 F.3d 319, 328 (7th Cir. 2002); Hilt-Dyson,
282 F.3d at 465.
In the present case, Plaintiff does not show that she performed
her job in a satisfactory manner. In fact, Hewitt has provided
evidence that Plaintiff was not meeting its legitimate
expectations. In May 2001, at her initial meeting with Mr.
Bryant, Plaintiff was found to be deficient in her MAGIC and
accuracy skills. (Bryant Decl. ¶ 18.) Plaintiff's MAGIC scores
were still very low during her July and August 2001 meetings,
although she was told her accuracy scores were improving. (Bryant
Decl. ¶ 20-21.) However, Mr. Bryant remained dissatisfied with
her performance because he did not feel her MAGIC skills were
improving enough, and for this reason, in October 2001 he placed Plaintiff on a sixty-day
performance improvement plan. Then on November 12, 2001,
Plaintiff violated her employer's security policy when she
transferred funds for Mr. Waxman, a Xerox plan participant,
without first verifying his PIN.
Plaintiff points out that Mr. Waxman was online attempting to
complete a financial transaction on his account when he called
for assistance. She argues that she was excused from being
required to ask Mr. Waxman for his PIN because he already entered
that information into the phone system before his call was routed
to her and he would have needed to enter his PIN online before
accessing his account information. However, the record indicates
that Hewitt requires CSAs, which includes Plaintiff, to verify a
caller's PIN unless the caller is merely requesting general
information; there exists no exception in the security policy
which excused this standard. (Beamon Dep. at 69-73, 113; Beamon
Dep. Ex. 2; Bryant Decl. ¶¶ 15-16; Keating Decl. ¶ 8.) Plaintiff
breached Hewitt and Xerox's security policy when she opened Mr.
Waxman's account without his PIN and when she processed a
financial transaction without his PIN. (Bryant Decl. ¶ 28.)
Plaintiff also erred when she directed Mr. Waxman's future
contributions to a different fund without transferring the entire
existing fund balance as he requested. Due to performance
problems and the security violation involving transfer of funds,
and considering the importance of the security standards to
Hewitt, Plaintiff has failed to prove that she was meeting her
employer's legitimate work performance expectations.
3. Plaintiff Suffered an Adverse Employment Action.
It is undisputed that Plaintiff suffered an adverse employment
action and therefore satisfied the third element needed to
establish a prima facie case of retaliation. The Seventh Circuit has indicated numerous times that a termination of
employment is a materially adverse action. E.g., Hilt-Dyson,
282 F.3d at 465; Ribando v. United Airlines, Inc.,
200 F.3d 507, 511 (7th Cir. 1999). Plaintiff's employment was terminated
and thus she suffered an adverse employment action.
4. Plaintiff Cannot Prove She Was Treated Less
Favorably Than Other Similarly Situated Employees
Who Did Not Engage In the Protected Activity.
Finally, the last element Plaintiff needs to establish in order
to prove her prima facie case of retaliation is that she was
treated less favorably than other similarly situated employees
who did not engage in the protected activity. See Rogers,
320 F.3d at 754-56; Hilt-Dyson, 282 F.3d at 465; Stone,
281 F.3d at 644. She must demonstrate that the other alleged similarly
situated employee is "directly comparable to her in all material
respects." See Peele, 288 F.3d at 330 (quotation omitted). When
a plaintiff claims she was disciplined more harshly than
similarly situated employees based on a prohibited reason, the
"plaintiff must show that [she] is similarly situated with
respect to performance, qualifications, and conduct." Radue,
219 F.3d at 617. Similarly situated also normally includes
demonstrating that the two employees were supervised by the same
person, were subject to the same standards, and had engaged in
similar conduct without any circumstances that would distinguish
their conduct or the employer's treatment of them. Id. at
617-18. Employees in the same position as the plaintiff, but who
have fewer performance problems, are not considered similarly
situated. Fuka v. Thomson Consumer Elec., 82 F.3d 1397, 1405-06
(7th Cir. 1996). In the present case, Plaintiff did not prove that she was
treated less favorably than similarly situated employees who did
not engage in the protected activity because the record is devoid
of any evidence of other employees who are similar to her in
regards to work record, qualifications, or conduct. See Durkin
v. City of Chicago, 341 F.3d 606, 613-14 (7th Cir. 2003).
Plaintiff maintains that she has satisfied this element of the
prima facie case when she provided evidence of co-workers
receiving their monthly performance feedback meetings with Mr.
Bryant, while she was not given monthly meetings with Mr. Bryant.
Plaintiff contends that this fact demonstrates the negative
treatment she received in contrast to her co-workers.*fn2
However, the test is not whether she was treated worse than her
co-workers, but whether she was treated worse than similarly
situated employees. See Peele, 288 F.3d at 330. Plaintiff's
proffered evidence does not prove that she was comparable to her
co-workers in work record (or in any other respect) and thus she
fails to prove that these employees were similarly situated to
her. See Rogers, 320 F.3d at 755.
In another effort to present a similarly situated employee who
was treated better than her, Plaintiff puts forth evidence
regarding Winfred Richmond. Mr. Richmond is Plaintiff's co-worker
who violated Hewitt's security policy three times before his
employment was terminated. Plaintiff contends that because Mr.
Richmond was able to violate security three times before he was
discharged, as opposed to her termination after only one alleged
security violation, Hewitt treated her worse than it treated Mr.
Richmond, an employee who did not engage in the protected
activity. However, Plaintiff failed to show that Mr. Richmond was
similarly situated to herself in respect to work performance and
conduct. There is no evidence in the record that he was ever placed on a performance improvement plan, nor is there evidence
that his security violations involve the transfer of funds.
Moreover, during his first two security violations Mr. Richmond
was not part of the Xerox team and was not supervised by Mr.
Bryant. Having the same supervisor is a typical requirement when
determining similarly situated individuals. Radue,
219 F.3d at 617-18. Therefore, Plaintiff has failed to establish that Mr.
Richmond was similarly situated to her and thus has failed to
establish her prima facie case of retaliation. See
Hilt-Dyson, 282 F.3d at 465; Stone, 281 F.3d at 644.
5. Hewitt Can Establish a Legitimate,
NonDiscriminatory Reason for Firing Plaintiff.
Even if Plaintiff had met her burden and established her prima
facie case of retaliation, Hewitt would still have the
opportunity to prevail on its motion for summary judgment by
producing evidence of a legitimate, nondiscriminatory reason for
terminating her employment. See Adams, 324 F.3d at 940;
Stone, 281 F.3d at 644. Once Hewitt presents its non-invidious
reason for terminating Plaintiff's employment, the burden of
production shifts back to Plaintiff to show that Hewitt's reason
is pretextual. Hilt-Dyson, 282 F.3d at 465. To demonstrate
this, Plaintiff must show that the retaliation was the most
likely motive for the termination. See Worth v. Tyer,
276 F.3d 249, 265 (7th Cir. 2001). Alternatively, she may show that
Hewitt's reason for terminating her employment was not worthy of
belief because it either: (1) had no basis in fact; (2) did not
actually motivate her discharge; or (3) was insufficient to
motivate her discharge. See id. at 266; Wells v. Unisource
Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002); Velasco
v. Ill. Dept. of Human Servs., 246 F.3d 1010, 1017 (7th Cir.
2001). Hewitt's explanation must be dishonest, not a mere
business error. See Wells, 289 F.3d at 1006.
In this case, as discussed, Hewitt asserts that Plaintiff's
employment was terminated because she violated Hewitt's security
policy and the security policy of Xerox, Hewitt's client. Hewitt
has provided a legitimate reason for terminating Plaintiff's
employment. The burden now shifts to Plaintiff to prove Hewitt's
reason is pretextual. See Hilt-Dyson, 282 F.3d at 465.
In attempting to prove pretext Plaintiff argues that she did
not violate Xerox's security policy because Mr. Waxman had
already entered his PIN online and on the phone system and she
asserts that is all that is required by Xerox's policy.*fn3
Hewitt confirms that the Plaintiff's computer screen would have
looked different depending on whether Mr. Waxman had entered his
PIN. (Bryant Decl. ¶ 10-11.)
Nevertheless, the Court finds that Plaintiff violated both
Xerox and Hewitt's security policies when she failed to verify
Mr. Waxman's PIN before transferred funds on his account per his
request. In August 2001, several months before her November 2001
phone call from Mr. Waxman, Mr. Bryant informed the Xerox team
about the wrongful act of another employee who had transferred
funds without first verifying the PIN and indicated that if such
a mistake happened again the erring CSA would be disciplined.
(Beamon Dep. at 113.) These undisputed facts support Hewitt's
contention that it required CSAs to confirm a caller's PIN before authorizing monetary transactions. This fact also demonstrates
that Plaintiff was aware of Hewitt's policy that CSAs must verify
the PIN before transferring funds. Hewitt placed great importance
on maintaining the security of their clients' employees.
Plaintiff has failed to demonstrate that when she did not verify
Mr. Waxman's PIN she did not give Hewitt cause to terminate her
Upon review of the record, we are convinced that Hewitt's
asserted reason for the discharge was supported by the evidence
and Plaintiff has failed to prove the proffered reason had no
basis in fact, did not actually motivate her discharge, or was
insufficient to motivate her discharge. See Velasco,
246 F.3d at 1018. Therefore, Plaintiff is unable to rebut Hewitt's
non-invidious reason for terminating her employment and for this
reason Hewitt's motion for summary judgment should be granted.
For all the above stated reasons, Defendant Hewitt's motion for
summary judgment is granted.