United States District Court, N.D. Illinois, Eastern Division
August 26, 2005.
MOHAMMED VIKARUDDIN, Plaintiff,
BANK ONE, N.A., Defendant.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Mohammed Vikaruddin, filed suit against Defendant,
Bank One, N.A., alleging that Defendant: (1) discriminated
Plaintiff on account of his national origin, India, in violation
of Title VII, 42 U.S.C. § 2000e-2(a)(1); (2) discriminated
Plaintiff on account of his religion, Muslim, in violation of
Title VII, 42 U.S.C. § 2000e-2(a)(1); (3) retaliated against
Plaintiff for bringing a charge with the Equal Employment
Opportunity Commission ("EEOC"); and (4) breached an "implied
employment contract." Presently before the Court is Defendant's
Motion for Summary Judgment. For the following reasons, the
motion is granted.
Summary judgment is appropriate when no genuine issue of
material fact exists and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co.
v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir.
1994). "One of the principal purposes of the summary judgment
rule is to isolate and dispose of factually unsupported claims or
defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (Celotex). Thus, although the moving party on a motion
for summary judgment is responsible for demonstrating to the court why there is no genuine issue of material fact, the
non-moving party must go beyond the face of the pleadings,
affidavits, depositions, answers to interrogatories, and
admissions on file to demonstrate, through specific evidence,
that a genuine issue of material fact exists and to show that a
rational jury could return a verdict in the non-moving party's
favor. Celotex, 477 U.S. at 322-27; Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 254-56 (1986) (Anderson); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) (Matsushita); Waldridge v. Am. Hoechst Corp.,
24 F.3d 918, 923 (7th Cir. 1994).
Disputed facts are material when they might affect the outcome
of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08
(7th Cir. 1992). When reviewing a motion for summary judgment, a
court must view all inferences to be drawn from the facts in the
light most favorable to the opposing party. Anderson,
477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185 F.3d 726,
731 (7th Cir. 1999). However, a metaphysical doubt will not
suffice. Matsushita, 475 U.S. at 586. If the evidence is merely
colorable or is not significantly probative or is no more than a
scintilla, summary judgment may be granted. Anderson,
477 U.S. at 249-250.
Plaintiff failed to respond to Defendant's Rule 56.1(a)
Statement of Facts. Plaintiff's failure to comply with Rule
56.1(b) results in accepting as true all facts set out in a Rule
56.1(a) statement. See Smith v. Lamz, 321 F.3d 680, 682-83 (7th
Cir. 2003). Even though Plaintiff failed to respond to
Defendant's statement of material facts and such facts are deemed
admitted, Defendant's Motion for Summary Judgment will only be
granted if it can demonstrate that there is no genuine issue of
material fact and that they are entitled to judgment as a matter
of law. See Johnson v. Gudmundson, 35 F.3d 1104, 1112 (7th Cir. 1994).
Accordingly, the undisputed facts, for the purposes of this
motion, taken from Defendant's Local Rule 56.1(a) statement of
material facts (referred to herein as "Def.'s 56.1") and
exhibits, are as follows.
Plaintiff worked as a software application developer in
Defendant's Asset-Based Finance ("ABF") department. Def.'s 56.1 ¶
6. The only document that created a contract between Plaintiff
and Defendant was Plaintiff's offer letter. Def.'s 56.1 ¶ 63. The
offer letter stated that "[e]mployment by Bank One Corporation is
on an `at will' basis. This means that the employment
relationship may be discounted at any time without notice by
either you or Bank One Corporation." Def.'s 56.1 ¶ 64.
Plaintiff's work consisted primarily of designing and
programming technology solutions for computer systems. Def.'s
56.1 ¶ 7. Many of Plaintiff's assignments and responsibilities
involved a programming language known as "SQL." Def.'s 56.1 ¶ 8.
Another language used by Plaintiff's group was called ".NET."
Def.'s 56.1 ¶ 8.
Plaintiff's first manager was Randy Rycraft, who stated in
Plaintiff's 2000 performance review that Plaintiff "[h]as not
been aggressive in acquiring the business knowledge required" and
that Plaintiff's "[d]evelopment time is much slower than expected
for a senior developer." Def.'s 56.1 ¶¶ 10-12. Rycraft's 2001
performance review concluded that Plaintiff needed a "[b]etter
understanding" of the ABF business and that Plaintiff needed to
produce "faster" results. Def.'s 56.1 ¶ 13. Rycraft did not
discriminate against Plaintiff. Def.'s 56.1 ¶ 14.
Thereafter, Reiko Yamada became Plaintiff's manager. Def.'s
56.1 ¶¶ 15-16. In order to spend the group's 2002 training budget
before the year ended, Yamada asked her group members to take a
training class. Def.'s 56.1 ¶ 18. Plaintiff did not take a class
because he took time off to attend to his daughter, who was battling cancer. Def.'s 56.1 ¶
19. In 2003, Plaintiff asked to take additional .NET training,
but Yamada wanted Plaintiff to begin additional on-the-job
training in .NET before taking a class. Def.'s 56.1 ¶¶ 20-21.
Before Plaintiff received his 2002 performance evaluation,
Yamada asked Plaintiff why he kept a beard, where he was from,
and what religion he practiced. Def.'s 56.1 ¶ 29. Other than
these isolated questions, neither Yamada nor anyone else working
for Defendant made any negative comments about Plaintiff's
national origin or religion. Def.'s 56.1 ¶ 30.
In the 2002 evaluation, Yamada rated Plaintiff as "N," for
needs improvement, the lowest level under Defendant's rating
structure. Def.'s 56.1 ¶ 23. Specifically, Yamada found that
Plaintiff needed to: (1) "further develop his knowledge about the
ABF business"; (2) be more efficient with his time and to produce
more results than finishing only one project on a single software
release; (3) demonstrate better knowledge about the database his
group supported; and (4) find solutions independently, without
relying on Yamada for suggestions. Def.'s 56.1 ¶ 24.
Lisa Eber subsequently became Plaintiff's manager. Def.'s 56.1
¶ 32. Shortly thereafter, Eber learned that Plaintiff received an
"N" rating for 2002. Def.'s 56.1 ¶ 37. Eber instructed Yamada to
develop a coaching and mentoring strategy involving weekly
objectives to help improve Plaintiff's rating. Def.'s 56.1 ¶ 37.
The coaching continued for a number of months and included
one-on-one sessions with Plaintiff and Eber and/or Yamada. Def.'s
56.1 ¶ 39.
Plaintiff also complained to Eber about wanting to attend more
.NET training. Def.'s 56.1 ¶ 40. Eber told Plaintiff that he
needed to show sustained improvement on his current SQL
assignments before she could approve more .NET training; in
Eber's view, it did not make sense to have Plaintiff learn a new
technology when his performance in SQL the foundational programming language for .NET was unsatisfactory. Def.'s 56.1 ¶
41. Eber explained to Plaintiff that he demonstrated insufficient
knowledge about the ABF department's business and database.
Def.'s 56.1 ¶¶ 42-44. Understanding the business and database
were critical because a developer cannot write programs for the
database without a detailed understanding of the database's
business purposes. Def.'s 56.1 ¶ 44. Eber also explained that
given Plaintiff's experience, he needed to improve his ability to
troubleshoot software and data problems without assistance.
Def.'s 56.1 ¶ 45.
Eber and Yamada conducted a 2003 mid-year performance review of
the group's members. Def.'s 56.1 ¶ 48. In Plaintiff's written
review, Eber noted that Plaintiff needed a better understanding
of the database and the ABF business. Def.'s 56.1 ¶ 48. In a
meeting, Eber stressed that Plaintiff needed to improve his
ability to independently troubleshoot problems in the program.
Def.'s 56.1 ¶ 49.
Eber requested laptop computers for her group members. Def.'s
56.1 ¶ 50. Initially, because not enough computers were approved
to provide a laptop for each member, Eber only provided laptops
to the developers working on the most important projects. Def.'s
56.1 ¶ 50. Plaintiff did not receive a laptop until six to eight
weeks later, after Eber received approval for enough laptops for
each group member. Def.'s 56.1 ¶ 50.
During the coaching period, Plaintiff performed well on some
assignments but failed to demonstrate significant and sustained
performance in his ability to troubleshoot problems efficiently
and independently. Def.'s 56.1 ¶ 51. He continued to suffer from
a lack of understanding the database, which prevented Plaintiff
from completing his tasks timely and efficiently. Def.'s 56.1 ¶
51. Eber documented these deficiencies and presented a written performance warning to Plaintiff in the fall of 2003. Def.'s 56.1
¶ 52. Plaintiff understood that warning meant his employment
might be terminated. Def.'s 56.1 ¶ 53. Eber and Yamada continued
to counsel and coach Plaintiff on how to correct these
deficiencies by: (1) providing Plaintiff with strategies to help
him develop better troubleshooting skills, (2) reviewing
Plaintiff's programming and providing feedback, (3) giving
hands-on training with Plaintiff's assigned work, and (4)
explaining ways to better understand the database. Def.'s 56.1 ¶¶
On October 16, 2003, Plaintiff filed a Charge of Discrimination
with the EEOC. Def.'s 56.1 ¶ 57. According to the charge,
Plaintiff believed that he had been treated differently because
of his national origin and religion and that his managers: (1)
denied Plaintiff training, (2) gave Plaintiff unfounded negative
criticisms and reviews, (3) did not give Plaintiff a laptop
computer, and (4) gave Plaintiff the written performance warning.
Def.'s 56.1 ¶ 57.
Thereafter, Plaintiff was given his 2003 performance review,
which stated Plaintiff continued to: (1) lack the requisite
knowledge of the database, (2) make unacceptable errors, (3)
demonstrate a lack of attention to programming, and (4) fail to
troubleshoot problems effectively. Eber rated Plaintiff as "N."
Def.'s 56.1 ¶ 58.
In March 2004, Eber recommended Plaintiff's termination, which
was approved. Def.'s 56.1 ¶ 59. The termination was recommended
because of Plaintiff's continued unsatisfactory performance while
Eber was managing Plaintiff. Def.'s 56.1 ¶ 60. Eber also reviewed
the 2002 performance review. Def.'s 56.1 ¶ 60. To support the
recommendation, Eber wrote a memorandum to human resources
stating that Plaintiff failed to improve in critical areas such
as: (1) understanding the ABF business and database and (2)
independently and effectively programming and troubleshooting his
assigned tasks. Def.'s 56.1 ¶ 62. ANALYSIS
Defendant seeks summary judgment on Plaintiff's Title VII
discrimination claims, Plaintiff's Title VII retaliation claim,
and Plaintiff's breach of contract claim.
To establish unlawful discrimination, Plaintiff must
demonstrate that he was discriminated against because of his
national origin or religion. 42 U.S.C. § 2000e-2(a). Plaintiff
may defeat the motion for summary judgment by using either the
"direct" method or the "indirect" method. Pafford v. Herman,
148 F.3d 658, 665 (7th Cir. 1998) (Pafford).
Under the direct method, Plaintiff may demonstrate that a
genuine issue of material fact exists as to whether he suffered
an adverse employment action motivated by an impermissible
purpose by presenting either circumstantial or direct evidence.
Pafford, 148 F.3d at 665. Circumstantial evidence consists of
"(1) suspicious timing, ambiguous statements, behavior towards
other employees and so on. . . ." Volovsek v. Wisconsin Dep't of
Agric., Trade, and Consumer Prot., 344 F.3d 680, 689 (7th Cir.
2003) (Volovsek). The evidence must create a convincing mosaic
of discrimination to avoid summary judgment. Volovsek,
344 F.3d at 690. It is undisputed that Plaintiff never heard Defendant's
employees making disparaging comments or remarks about his
religion or national origin. Yamada asked Plaintiff about his
ethnic background and religion on one occasion; however, these
isolated questions, by themselves, do not create the convincing
mosaic of retaliation needed to avoid summary judgment under the
Under the indirect method, Plaintiff "may raise an inference of
discrimination by offering sufficient evidence to establish a
prima facie case." Pafford, 148 F.3d at 665. To raise a
prima facie case, Plaintiff must produce evidence that: (1) he
was a member of a protected class; (2) he was meeting his employer's legitimate performance expectations;
(3) he suffered an adverse employment action; and (4)
similarly-situated employees not in the protected class were
treated more favorably. Lalvani v. Cook County, 269 F.3d 785,
789 (7th Cir. 2001). If Plaintiff demonstrates a prima facie
case, the burden shifts to Defendant to demonstrate "a
legitimate, nondiscriminatory reason for the action." Pafford,
148 F.3d at 665. If Defendant meets this burden, the burden
shifts back to Plaintiff to demonstrate the proffered reason is
pretextual. Pafford, 148 F.3d at 665.
Plaintiff raises seven types of adverse employment actions: (1)
Defendant's decision not to allow Plaintiff to participate in
interview sessions for prospective employees, (2) Defendant did
not consider ideas raised by Plaintiff, (3) the denial of
training, (3) the denial of a laptop, (5) inaccurate or otherwise
negative performance evaluations, (6) the written performance
warning, and (7) his termination. However, only tangible
employment actions are actionable; those actions require "a
significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits." Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742,
743-44 (7th Cir. 2002) (citations omitted). Accordingly, no
genuine issue of material fact exists as to whether Plaintiff
suffered a tangible employment action when: (1) Defendant decided
not to allow Plaintiff to participate in interview sessions for
prospective employees and (2) Defendant did not consider ideas
raised by Plaintiff. As to the remaining employment actions, even if Plaintiff could
make a prima facie case of discrimination, Plaintiff cannot
demonstrate that Defendant's reasons for taking action were
pretextual. To establish pretext, Plaintiff must raise a genuine
issue of material fact demonstrating that Defendant's proffered
reasons for taking action were not honest. Kulumani v. Blue
Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000).
(3) Plaintiff alleges that Defendant denied him training, even
though Plaintiff was offered the opportunity to take a class in
2002. Plaintiff wanted to take a .NET class, but it is undisputed
that Plaintiff's managers would not permit Plaintiff to take this
class until: (a) Plaintiff improved at programming in SQL, the
foundational language for .NET and (b) Plaintiff received more
on-the-job training in .NET. Plaintiff has presented no
affidavits, depositions, interrogatories, or admissions to the
(4) Plaintiff next alleges that he was denied a laptop.
However, it is undisputed that Plaintiff eventually received a
laptop. It is also undisputed that Plaintiff's manager decided to
provide laptops to the developers working on the most important
projects. Plaintiff has presented no affidavits, depositions,
interrogatories, or admissions to the contrary.
(5) Plaintiff contends that his evaluations were inaccurate and
unfairly negative, as they were based upon the subjective
opinions of his managers instead of objective yardsticks.
However, "nothing in Title VII bans the outright use of
subjective evaluation criteria." Millbrook v. IBP, Inc.,
280 F.3d 1169, 1176 (7th Cir. 2002) (citation omitted).
(6) Plaintiff also contends that he was discriminated against
when he received his written performance warning. As discussed
above, Plaintiff's job performance was deficient in numerous
ways, including: (a) a lack of knowledge of the ABF business, (b)
a failure to understand the database that was used by his group, (c) a failure
to produce results efficiently, (d) a failure to work
independently, and (e) an inability to troubleshoot problems.
Despite coaching and mentoring, three separate managers concluded
that Plaintiff suffered from these job deficiencies. Plaintiff
has not presented any affidavits, depositions, interrogatories,
or admissions raising a genuine issue of material fact which
demonstrates the reasons for the written performance warning were
(7) Plaintiff further contends his termination was pretextual.
However, it is undisputed that after the written performance
warning which Plaintiff knew could lead to his termination
Plaintiff's performance continued to be unsatisfactory, despite
continued counseling and teaching from Eber and Yamada.
Accordingly, no genuine issue of material fact exists
demonstrating that Plaintiff's termination was pretextual.
Based on the above, Defendant is entitled to summary judgment
on Plaintiff's discrimination claims.
Title VII also prevents employers from retaliating against
employees because "he has opposed any practice made an unlawful
employment practice by this subchapter, or because he 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). Plaintiff can defeat a motion for summary
judgment in this regard by using either the direct method or by
using the indirect, burden-shifting method discussed above. Fyfe
v. City of Fort Wayne, 241 F.3d 597, 601 (7th Cir. 2001)
(Fyfe). Under the indirect method, an employer is entitled to
summary judgment if it presents an unrebutted, legitimate,
nondiscriminatory reason for the adverse employment action.
Fyfe, 241 F.3d at 601. Plaintiff has not presented any affidavits, depositions,
interrogatories, or admissions containing any direct or
circumstantial evidence that any adverse employment actions he
suffered were retaliatory. As such, Plaintiff can only rely upon
the indirect, burden-shifting method. Plaintiff, though, relies
upon the same set of claimed adverse employment actions to
support his retaliation and discrimination charges. Therefore,
Defendant is also entitled to summary judgment on Plaintiff's
Finally, Plaintiff alleges Defendant breached an "implied
contract" when Plaintiff was terminated. However, it is
undisputed that the only purported written contract which exists
is Plaintiff's employment offer letter. It is also undisputed
that this letter states Plaintiff's employment is at will.
Plaintiff has presented no affidavits, depositions,
interrogatories, or admissions to the contrary. Accordingly,
Defendant is entitled to summary judgment on Plaintiff's breach
of contract claim.
For the foregoing reasons, Defendant's Motion for Summary
Judgment is granted.
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