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MOORE v. CINGULAR WIRELESS

DENNIS MOORE, Plaintiff,
v.
CINGULAR WIRELESS, Defendant.



The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge

MEMORANDUM OPINION AND ORDER

Dennis Moore ("Moore") has sued Cingular Wireless ("Cingular") for alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). Cingular has filed a Federal Rule of Civil Procedure 56(c) motion for summary judgment. For the reasons set forth below, the motion is granted.

Facts

  Parties are expected to abide by the Local Rules ("LR") when submitting a motion for summary judgment and a response thereto. See LR 56.1. With its motion, Cingular submitted a memorandum of law in support and a statement of material facts with supporting materials as contemplated by LR 56.1(a)(3). In response, Moore submitted a memorandum of law and an affidavit accompanied by exhibits. He did not respond to Cingular's statement of material facts as required by LR 56.1(b)(3)(A) nor did he submit a statement of additional facts as allowed by LR 56.1(b)(3)(B). Cingular filed its reply and noted therein Moore's failure to comply with LR 56.1. Almost one month later, on August 9, 2004, Moore submitted "Plaintiff's Response to Defendant's Statement of Material Facts As To Which It Contends There Is No Genuine Issue." We denied Moore leave to file this document, therefore, all material facts set forth in Cingular's LR 56.1(a)(3) statement are deemed admitted. See LR 56.1(b)(3)(B). See also Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (upholding strict enforcement of LR 56.1 where non-movant failed to submit factual statement in form called for by rule, thus conceding the movant's version of the facts).

  Cellular One, a subsidiary of SBC Communications, Inc. ("SBC"), hired Moore in August 1997 and promoted him to a non-exempt*fn1 position of Buyer I approximately two years later. (Def.'s LR 56.1(a) Stmt. ¶¶ 1, 3.) When Moore was promoted to the Buyer I position, Martha Morrison, Regional Purchasing Manager for the Great Lakes Region, became his supervisor. (Id. ¶ 2.) On October 8, 1999, SBC merged with Ameritech Corporation, Inc. ("Ameritech"). Ameritech Mobile was a subsidiary of Ameritech. (Id. ¶ 3.) At the time of the merger, SBC and Ameritech had disparate compensation structures. (Id. ¶ 4.) The compensation structure for the higher-paid Ameritech employees was held in place for two years following the merger. (Id.)

  On October 2, 2000, SBC and Bell South Corporation entered into a joint venture. (Id. ¶ 5.) They pooled all of their wireless operations to form Cingular; both Cellular One and Ameritech Mobile were contributed to Cingular and the disparate compensation structures were left intact. (Id.) As a result of the joint venture, Moore became an employee of Cingular. (Id. ¶ 6.) Prior to becoming a Cingular employee, Moore was informed that Cellular One's pay scale was lower than that of Ameritech Mobile. (Id. ¶ 7.) As a member of a labor union, the Communications Workers of America, Moore's employment was governed not only by Cingular's policies, but also by the labor union's collective bargaining agreement with Cingular (the "Labor Agreement"). (Id. ¶ 8.) Moore served as a union steward from March 2001 to October 2001. (Id. ¶ 9.) The Labor Agreement recognizes only certain job titles and positions. (Id. ¶ 10.) Because Moore's Buyer I position was not recognized in the Labor Agreement, it was converted to the functionally equivalent title of Finance Representative II. (Id. ¶ 11.) Despite his membership in the union and the Labor Agreement's recognition of only certain job titles, in 2001, Moore considered himself to be a Buyer. (Id. ¶ 12.)

  In June 2001, Cingular erroneously posted an opening for an exempt-level position.*fn2 (Id. ¶ 13.) The job posting identified the title of the position as Purchasing Agent, a title used loosely by some within Cingular prior to Cingular's rollout of its job mapping scheme. (Id. ¶ 14.) The position was officially a Buyer position. (Id. ¶ 15.) The mistitling of the open position had no material effect on the job qualifications, duties or other aspects of the advertised position. The Buyer position was in the "facilities" area of purchasing. (Id. ¶ 17.)

  Cingular awarded Gale Schourek, one of Moore's co-workers, with the Buyer position in June 2001. She was given the position as a reward for her strong performance and increasing responsibility and demonstrated effort, and because her immediate experience was in facilities buying, (Id. ¶ 16.) Schourek had fifteen years of relevant retail experience; Moore had very little facilities purchasing experience. (Id. ¶¶ 18, 19.) According to the job posting, there is no "one year in current position" requirement for the position. (Id. ¶ 21.) Moore, however, believes this requirement exists, although he cannot produce any document in support. (Id. ¶ 20, 22.) When it was announced that Schourek received the new title, Moore complained to the Human Resources Department, saying that he deserved the promotion. (Id. ¶ 23.) Cory Bolanowski, Senior Human Resources Manager, investigated. Bolanowski learned that the title of the advertised position should have been Buyer rather than Purchasing Agent, and that the new position Schourek received was intended to reward her for her hard work and acknowledge her increased duties over the preceding months. (Id.) Bolanowski then reviewed the positions held by others in the department and concluded that the work functions of the Finance Representative II (Moore's position) and Buyer positions were similar enough to become one exempt-level position. Bolanowski determined that Moore and his co-worker, Roger Reynolds, should be given the same title, Buyer, as well as the same percentage salary increase (10%) and authorization level ($25,000) as Schourek. (Id.) Schourek was promoted to Buyer on or about June 21, 2001, and Moore and Reynolds were promoted to Buyer effective July 8, 2001, approximately two weeks later. (Id. ¶¶ 25, 26.)

  Even with the promotion, Moore remained upset that he did not receive the title of Purchasing Agent. (Id. ¶ 27.) However, no one at Cingular, not Schourek and not Reynolds, held the title of Purchasing Agent in the summer of 2001 because the title was not recognized by Cingular's job mapping scheme. (Id. ¶ 28.) Cingular has explained to Moore numerous times that he cannot have the title of Purchasing Agent because no such title is recognized. (Id. ¶ 30.) Moore acknowledges that the person Schourek replaced was never considered a Purchasing Agent. (Id. ¶ 29.) Moore, however, remains steadfast in his belief that he was entitled to be named a Purchasing Agent. (Id. ¶ 31.)

  Within two months of their promotions, Schourck, Moore and Reynolds were informed that, as part of the completion of the merger process, the Hoffman Estates, Illinois purchasing department would be consolidated into the new Cingular headquarters in Atlanta. (Id. ¶ 33.) Cingular offered Moore two options — he could accept a Buyer position in Atlanta, with paid relocation expenses, or he could accept a Regional Purchasing Coordinator position in Hoffman Estates. (Id. ¶ 34.) Moore rejected both of these options. (Id.) He considered them to be "lateral" moves. (Id. ¶ 35.) Schourek was also notified of the elimination of her Hoffman Estates Buyer position. (Id. ¶ 36.)

  Moore filed a charge with the Equal Employment Opportunity Commission ("EEOC"), complaining that his supervisor, Morrison, had screamed at him, that he was paid less than Schourek, and that the Purchasing Agent position had been awarded to Schourek, (Id. ¶ 37.) Moore claims he was discriminated against on the basis of race. Both Morrison and Schourek are white and Moore is black. (Id. ¶¶ 38, 39.)

  Moore admits that Morrison was combative and a difficult person to get along with. Moore believes a number of employees left the purchasing department because they wanted more respect and better treatment than what Morrison provided. (Id. ¶ 40.) These employees include Lisa Fletcher, Mike Jones, Kathy Carrillo, Diane Gorman and Laura Patrick, some of whom are white. (Id.) In addition, after Moore complained of Morrison's behavior in the summer of 2001 to Bolanowski, Morrison's conduct became acceptable to Moore. (Id. ¶ 41.)

  One month later, in October 2001, Moore filed a second EEOC charge alleging retaliation. He claimed that: (1) his phone had been tampered with; (2) he received an email from the chief counsel of Labor and Human Resources at Cingular expressing concern with Moore's insinuation at a focus group meeting that a third-party diversity consultant (SCENDIS) retained by Cingular would attempt to sanitize its report;*fn3 and (3) Cingular refused to mediate his first EEOC charge. (Id. ¶ 42.) In his complaint, Moore contends that the denial of the Purchasing Agent title was retaliation for his challenge of Schourek's promotion to Buyer. He also says that Cingular's consolidation of the purchasing department was retaliatory in that it was somehow intended to target him or was in response to his internal challenge of Schourek's promotion. (Id. ¶¶ 46, 47.) Moore believes that he was denied an opportunity for promotion that would have protected him from lay off, relocation and lateral transfer even though the position advertised provided no such protection. (Id. ¶ 48.) In fact, Schourek, like others in the Hoffman Estates purchasing department, was notified in August 2001 that her Buyer position would be eliminated as part of the impending layoffs. (Id. ¶ 49.)

  When Moore started at Cellular One in August 1997, his hourly rate was $10.096, yielding an annual "salary" of approximately $21,000. (Id. ¶ 50.) When he ended his employment at Cingular, his annual salary was $33,305. Schourek started with Ameritech Mobile in November 1997 at an annual salary of approximately $33,000 and her salary at the time of separation was $46,750. Moore's salary increased by 58% and Schourck's salary increased by 41%. (Id. ¶ 51.) Moore's compensation was consistent ...


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