United States District Court, N.D. Illinois, Eastern Division
September 30, 2004.
CAROL SANCHES, Plaintiff
LORDEN DISTRIBUTING CO., Defendants.
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
This matter is before the Court on defendant's motion for
summary judgment. Plaintiff Carol Sanches filed a complaint
against defendant Lorden Distributing Company alleging violations
of Title VII of the Civil Rights Act 1964 ("Title VII"),
42 U.S.C. §§ 2000e, et seq., the Age Discrimination in Employment
Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq., and the
Employee Retirement Income Security Act of 1974 ("ERISA"),
29 U.S.C. § 1001, et seq. For the following reasons, defendant's
motion for summary judgment is granted.
Plaintiff Carol Sanches was an employee of the Lorden
Distributing Company ("Lorden") from 1977 to 2001. Lorden is a
closely held, family business operating out of Rockford,
Illinois. Sanches began as a bookkeeper and was later given
additional responsibilities as office manager, financial officer,
and administrator. On January 21, 2000, Sanches went home sick
from work and never returned. In the months that followed, Lorden
made repeated attempts to keep in contact with her. On February
23 and June 14, 2000, Lorden's General Manager, Mike LaLoggia,
wrote Sanches asking for information on her medical status. On
August 11, 2000, LaLoggia wrote Sanches to inform her that, given the open-ended nature of
her absence, Lorden had hired an individual to assume her duties.
The letter expressly stated that plaintiff's employment was not
terminated. Lorden claims that Sanches ignored its requests for
On January 25, 2001, LaLoggia sent plaintiff a final letter
informing her that, due to her extended absence from work for one
year, the company deemed her to have voluntarily resigned.
Lorden's employment manual provides that any employee absent for
a period of one year, regardless of the reason, is deemed to have
In her complaint, Sanches argues that she was fired and was the
target of a campaign to force her to resign. Company president
Thomas Lorden had asked Sanches to train and assist his two sons,
Tommy and Danny Lorden, when they started working for the company
in 1997. Both men allegedly resisted her efforts to train them
and over the course of the next two years, allegedly made her
working environment intolerable. Sanches complains of being given
excessive job duties that she alleges were not given to similarly
situated male employees. She alleges that Tommy Lorden secretly
tracked her performance, including her attendance, vacation days,
and personal calls, in an effort to affect her performance
evaluations and ultimately to undermine her position with the
On or about August 4, 2000, Sanches filed a claim with the
Equal Employment Opportunity Commission ("EEOC"), charging
defendant with retaliation and gender and age discrimination
under Title VII and the ADEA. On January 31, 2001, the EEOC
dismissed plaintiff's claims and issued a Notice of Right to Sue.
Sanches then filed this lawsuit.
On February 18, 2004, Lorden filed a motion for summary
judgment. In her response, Sanches moved to dismiss with prejudice three of the six counts
in her lawsuit, including Count II (age discrimination), Count IV
(breach of employment contract), and Count V (ERISA retaliation).
We grant Sanches' motion. Lorden's motion for summary judgment on
Count I (gender discrimination), Count III (retaliation), and
Count VI (ERISA breach of contract) is granted for the reasons
set forth below.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment may
only be granted when "there is no genuine issue as to any
material fact and . . . the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56(c). We apply
this standard with particular care in employment discrimination
cases in which intent and credibility are critical. Senner v.
Northcentral Technical College, 113 F.3d 750, 757 (7th Cir.
1997). Nevertheless, "an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but . . .
must set forth specific facts showing that there is a genuine
issue for trial." FED. R. CIV. P. 56(e). A party must present
"more than a scintilla of evidence" to defeat summary judgment.
Senner, 113 F.3d at 757.
Indeed, "Rule 56 demands something more specific than the bald
assertion of the general truth of a particular matter, rather it
requires affidavits that cite specific concrete facts
establishing the existence of the truth of the matter asserted."
Hadley v. County of DuPage, 715 F.2d 1238, 1243 (7th Cir.
1983). Conclusory allegations alone will not defeat a motion for
summary judgment. Thomas v. Christ Hosp. and Medical Center,
328 F.3d 890, 893-94 (7th Cir. 2003), citing Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888-89
(1990). "Speculation does not create a genuine issue of fact,
instead, it creates a false issue, the demolition of which is a
primary goal of summary judgment." Hedberg v. Indiana Bell Tel.
Co., 47 F.3d 928, 932 (7th Cir. 1995) (emphasis added). The
fact-intensive nature of employment discrimination cases does not
oblige the court to "scour the record" for factual disputes to
help a plaintiff avert summary judgment. Greer v. Bd. of Ed. of
the City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001).
II. Plaintiff Cannot Maintain a Gender Discrimination Claim
Count I of plaintiff's complaint alleges gender discrimination
under Title VII. Title VII prohibits employers from
"discriminating against any individual with respect to
compensation, terms, conditions, or privileges of employment,
because of such individual's . . . sex."
42 U.S.C. § 2000e-2(a)(1). A plaintiff alleging gender discrimination under
Title VII can prove her claim either by providing direct evidence
of an employer's discriminatory intent or by showing disparate
treatment using indirect evidence and the burden shifting method
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Schaffner v. Glencoe Park Dist., 256 F.3d 616, 620 (7th
Plaintiff has failed to produce any direct evidence of gender
discrimination. Under the direct evidence method, plaintiff would
essentially need an admission by the decision-maker that he was
discriminating against the plaintiff on the basis of gender.
Markel v. Board of Regents of the Univ. of Wis., 276 F.3d 906,
910 (7th Cir. 2002). Defendants have steadfastly rejected any
assertion that its decisions were made based on Sanches' gender.
Thus, we proceed under the McDonnell Douglas framework. Under McDonnell Douglas, plaintiff must first establish that
(1) she was a member of a protected class; (2) she was performing
at a level that met her employer's legitimate expectations; (3)
she was subject to adverse employment actions; and (4) she was
treated differently than similarly situated persons outside of
the protected class. Rhodes v. Illinois DOT, 359 F.3d 498, 504
(7th Cir. 2004). If the plaintiff establishes a prima facie case,
then "the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its
allegedly biased employment decision." Johnson v. City of Fort
Wayne, Ind., 91 F.3d 922, 931 (7th Cir. 1996). If the employer
provides a legitimate, non-discriminatory reason, then plaintiff
must show by a preponderance of the evidence that the employer's
stated reason for its decision is nothing more than pretext.
Sanches, by the mere fact that she is a woman, is a member of a
protected class under Title VII. King v. Board of Regents of
Univ. of Wisconsin System, 898 F.2d 533, 538 (1990). However,
she is unable to establish the other three elements required
under McDonnell Douglas. First, plaintiff was not performing at
a level that met the company's legitimate expectations. She
admitted at her deposition that her 1998 and 1999 performance
reviews were substandard. Her 1999 performance rating was below
1.0, the required score for adequate performance on the company's
rating scale. Plaintiff's supervisors allegedly received
complaints regarding her performance. Other employees report she
was condescending and was reluctant and impatient when training
new employees. She allegedly failed to keep up with her job
duties and follow directives, and had a poor attendance record.
In response, plaintiff argues that the "surreptitious
monitoring" of her performance was motivated by the company's desire to force her to resign. She
focuses on her belief that she was singled out by top management,
when other similarly situated male employees were not. But she
fails to refute Lorden's assertions that she, in fact, was
adequately performing her duties. Thus, we conclude that, despite
years of satisfactory performance and promotions, during the
period in question, plaintiff was not meeting the legitimate
expectations of the company.
Second, plaintiff cannot establish that she suffered an adverse
employment action. An adverse employment action is one that is
materially adverse, "meaning more than a mere inconvenience or an
alteration of job responsibilities." Oest v. Ill. Dep't of
Corr., 240 F.3d 605, 612 (7th Cir. 2001). The Seventh Circuit
has offered examples of adverse employment actions, including
"termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of
benefits, [or] significantly diminished material
responsibilities." Hilt-Dyson v. City of Chicago, 282 F.3d 456,
In her complaint, plaintiff alleges that she suffered an
adverse employment action when she was fired from her job. Under
the company rules, however, plaintiff is deemed to have
voluntarily resigned. Alternatively, plaintiff has alleged that
she was constructively discharged. In her response to defendant's
motion for summary judgment, she argued that conditions at Lorden
were intolerable and she essentially was forced to resign. It is
well established that the plaintiff cannot amend her complaint
through arguments in a brief opposing a summary judgment motion.
Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996).
But even if she were permitted to advance this theory, her
descriptions of the working environment at Lorden fail to meet
the required standard for constructive discharge. To establish a theory of constructive discharge, plaintiff must
show that her working conditions were "unbearable." EEOC v.
University of Chicago Hosp., 276 F.3d 326, 331-32 (7th Cir.
2002). The Seventh Circuit has held that the work environment
must be more egregious than that of a hostile work environment.
Id. In her complaint, plaintiff maintains that she was not
given appropriate authority and support to successfully perform
her job duties of training Tommy and Danny Lorden and was
intentionally assigned additional, excessive job duties, which
made it impossible for her to succeed. These claims fail to meet
the legal standard required to succeed on a theory of
constructive discharge. As the Seventh Circuit has noted, "not
everything that makes an employee unhappy is an actionable
adverse action." Hilt-Dyson v. City of Chicago, 282 F.3d 456,
Third, plaintiff cannot establish that she was treated
differently than similarly situated male employees. She alleges
that other male employees, primarily Tommy and Danny Lorden, were
not subjected to a "prolonged campaign of negative scrutiny." To
be similarly situated to another employee, a plaintiff must show
that the employee is directly comparable in all material
respects. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002). We must also consider other "differentiating or
mitigating circumstances as would distinguish . . . the
employer's treatment of them." Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 618 (7th Cir. 2000).
In this case, Tommy and Danny Lorden are not similarly situated
male employees. As shareholders of the firm, they were favored by
their father, the company president, based on lineage, not
gender. As part owners, Tommy and Danny Lorden cannot be directly
comparable in all material respects to non-equity employees, even to senior
managers like Sanches. In addition to Tony and Danny Lorden,
plaintiff makes a vague reference to being similarly situated to
the operations and sales managers, who she asserts were not
subject to the same "specter of harassment." These assertions are
not sufficiently detailed. She fails to demonstrate how similarly
situated male employees, if there are such employees, were
treated differently. Thus, plaintiff fails to establish a prima
facie case of gender discrimination under McDonnell Douglas.
Even if plaintiff were able to establish a prima facie case,
defendant would be able to meet its burden of articulating a
legitimate, nondiscriminatory reason for its allegedly biased
conduct. Defendant has offered legitimate business reasons for
its actions with respect to plaintiff's employment, including
being assigned the additional duties of training Tommy and Danny
Lorden. Moreover, a woman was hired to replace Sanches as
Director of Finance and Administration. We agree with defendants
that plaintiff has failed to prove she was discriminated against
based on gender.
III. Plaintiff Cannot Maintain a Retaliation Claim
In Count III, plaintiff alleges retaliation under Title VII.
Title VII prohibits retaliation against an employee who has
engaged in activity protected under the Act.
42 U.S.C. § 2000e-3(a). Section 2000e-3(a) states that "it shall be an
unlawful employment practice for an employer to discriminate
against any of its employees . . . because [they have] opposed
any practice made an unlawful employment practice by this
subchapter." 42 U.S.C. § 2000e-3(a).
Plaintiff can prove her retaliation claim in one of two ways.
First, she may "present direct evidence that she engaged in
protected activity . . . and as a result suffered the adverse employment action of which she complains." Stone v. City of
Indianapolis Public Utilities Division, 281 F.3d 640, 643-44
(7th Cir. 2002). Second, if the plaintiff cannot prove direct
evidence of retaliation, she can prevail under an adaptation of
McDonnell Douglas by showing that after engaging in protected
activity, she was subject to an adverse employment action even
though she was performing her job in a satisfactory manner. Id.
Plaintiff has failed to establish a retaliation claim under
either the direct or indirect methods. She cites, however, two
incidents as grounds for proving retaliation under the indirect
method. First, she alleges Tommy Lorden orchestrated a campaign
to force her to resign in retaliation for having reported to his
father that Tommy had raised his voice and cursed at plaintiff in
August 1998. Reporting such an incident is not a protected
activity under Title VII. Accordingly, this claim must fail.
Second, plaintiff believes she was terminated for having
opposed and investigated the company's denial of medical leave
benefits to a female co-worker. In her EEOC complaint, she argued
that the company was providing medical leave benefits to male
employees only, which she asserted was gender discrimination
under Title VII. In the Court's discussion of plaintiff's own
gender discrimination claim above, however, we outlined
plaintiff's failure to meet the legal standard for constructive
discharge, and ruled that the actions that were taken by
defendants failed to rise to the level of materially adverse
employment actions. Thus, without a showing of adverse employment
action, we reject plaintiff's retaliation claim under McDonnell
IV. Plaintiff Cannot Maintain an ERISA Claim
In Count VI, plaintiff asserts that she was discharged for the
purpose of preventing her from vesting in the company's retirement plan. Plaintiff was, in
fact, a participant in Lorden's Supplemental Executive Retirement
Plan (SERP), which is a deferred employee benefit plan under
ERISA. 29 U.S.C. § 1002(2). Sanches was scheduled to vest in
December 2006. Under Section 510 of ERISA, it is unlawful for any
person to discharge a participant or beneficiary of an employee
benefit plan for the purpose of interfering with the attainment
of any right to which the participant may become entitled.
29 U.S.C. § 1140.
To establish an ERISA retaliation claim, however, the Seventh
Circuit has held that the claimant must demonstrate that the
employer had the specific intent to interfere with the employee's
ERISA rights. Bilow v. Much, Shelist, Freed, Denenberg, Ament &
Rubenstein, P.C., 277 F.3d 882, 892 (7th Cir. 2001). Plaintiff
has failed to provide any evidence that defendant had the
specific intent to deprive her of the SERP benefits. Her
assertions are conjecture. There is no persuasive evidence that
Lorden discharged the plaintiff in January 2001 to prevent her
benefits from vesting in December 2006.
For the foregoing reasons, defendant's motion for summary
judgment [28-1] is granted. Plaintiff's motion to dismiss with
prejudice three of the six counts in her complaint [39-1] is
granted. Defendant's motion to strike plaintiff's response to the
Local Rule 56.1 statement [44-1] is denied as moot. This case is
hereby terminated. This is a final and appealable order. It is so
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