United States District Court, N.D. Illinois, Eastern Division
December 13, 2005.
JANICE F. KENNEDY, Plaintiff,
LEASE FINANCE GROUP, a division of CIT, Defendants.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Janice F. Kennedy ("Plaintiff") is suing her former
employer, Lease Finance Group, a division of CIT ("Defendant" or
"LFG"), for violation of Title VII of the Civil Rights Act of
1964 ("Title VII"), the Age Discrimination in Employment Act
("ADEA"), and the Americans with Disabilities Act ("ADA"). Before
this court comes Defendant's motion for summary judgment in its
favor. For the following reasons, Defendant's motion is GRANTED.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine
issue of material fact exists only if there is sufficient
evidence for a reasonable jury to return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
reviewing a motion for summary judgment, the court must view the
facts in the light most favorable to the nonmoving party and draw
all reasonable inferences in that party's favor. See Schuster
v. Lucent Technologies, Inc., 327 F.3d 569, 573 (7th Cir. 2003).
The movant bears the burden of establishing that no genuine
issue of material fact exists. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If the movant meets this burden, the
non-movant must set forth specific facts demonstrating that there
is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex,
477 U.S. at 324. To successfully oppose the motion, the
non-movant must designate these facts in affidavits, depositions,
answers to interrogatories, or admissions; the non-movant cannot
rest on the pleadings alone. Celotex, 477 U.S. at 324. "A
scintilla of evidence in support of the non-movant's position is
insufficient," Anderson, 477 U.S. at 252, and the non-movant
"must do more than simply show that there is some metaphysical
doubt as to the material fact." Matsushita Electric Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Weighing
evidence, determining credibility, and drawing reasonable
inferences are jury functions, not those of a judge deciding a
motion for summary judgment. Anderson, 477 U.S. at 255. II. FACTS*fn1
Defendant, located in Chicago, Illinois, leases credit card
terminals and other related point-of-sale equipment to small and
mid-size retailers in the United States and Canada. Defendant is
a division of CIT, a commercial and consumer finance company
headquartered in Livingston, New Jersey.
Plaintiff is a former Staff Accountant at LFG. She was hired on
or about July 1, 1998 and resigned effective July 27, 2005.
Plaintiff received a Bachelor of Arts in Political Science in
1999 and a Masters of Science in Public Service Management in
2003, both from DePaul University.
On March 24, 2005, Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission ("EEOC"). In
that complaint, and in the instant Complaint, Plaintiff alleges
that Defendant discriminated against her on the basis of her age
(Plaintiff is now 56), race (black), and disability (asthma and
hearing loss). Specifically, Plaintiff alleges that in January
2004 she was denied promotion to the Operations Specialist
position at LFG and in March 2004 her co-workers received higher
pay raises than she did. A. Plaintiff's Disabilities
Plaintiff's claimed disabilities are asthma and total hearing
loss in her right ear. Plaintiff maintains that her asthma is
bought on by stress, anxiety, and the weather. For her asthma,
Plaintiff takes two medications once a day for maintenance and
uses an inhaler as needed. Plaintiff has stated that this regimen
controls her asthma. Plaintiff's deposition testimony notes that
people at LFG knew about her asthma because they could hear her
coughing. Plaintiff's disputed facts note that people knew about
her asthma because of her short-term disability leaves of absence
from work. Plaintiff claims that she told the former Human
Resources Representative, Chris Mahon ("Mahon"), about her asthma
She did not, however, request an accommodation from LFG, and
believed there was nothing LFG could do for her asthma. According
to Plaintiff, the medication allowed her to perform her job
duties without any accommodation from LFG. Plaintiff did not have
any medical restrictions on the type of work she could perform.
Plaintiff never told anyone at LFG about her hearing loss, and
no one at LFG was aware of her hearing loss. Plaintiff stated
that her hearing loss did not affect her ability to do her job.
B. Defendant's Policies and Procedures
Defendant maintains its Employee Handbook on the CIT Employee
Intranet. The Employee Handbook contains various policies,
including those about "Equal Employment Opportunity,"
"Recruitment Process," "Workplace Harassment," and "Employee
Concern Procedure." The "Equal Employment Opportunity" applies to
hiring, promotion, demotion, transfer, termination, and
compensation. The "Employee Concern Procedure" guides employees in addressing job-related issues in the workplace, including
complaints about harassment and discipline. An employee has three
options when filing a complaint: (1) discuss the problem with the
first level manager to whom the employee reports; (2) have a
conference with the unit or department head, area Vice President
or Senior Vice President, Local Human Resources Representative or
the Corporate Employee Department in Livingston, New Jersey; or
(3) submit the problem to the CIT Integrity Hotline.
Promotions at LFG are based on the requirements of the position
and the candidate's credentials, experience, and work
performance. If an individual has exhibited strength in an area
that is central to the available position, then that candidate
will be considered for the position. Strong performers may not be
qualified for available positions within LFG for various reasons,
including that their experience and strong performance may be in
an area completely unrelated to the available position. The
requirements of the position dictate the type of candidate LFG
will hire or promote.
C. Pay Raises in the Accounting Department
Plaintiff began employment at LFG in 1998 as an Accounting
Clerk in the Accounting Department. After the job functions of
LFG's Accounting Clerks expanded in March 2000, Plaintiff's
title, along with the title of all Accounting Clerks, charged to
Staff Accountant. During the time Plaintiff was employed at LFG,
her only experience was in the Accounting Department; she never
worked in any other department at LFG.
During Plaintiff's employment, LFG employed three Staff
Accountants: Plaintiff, Sebreena Parks ("Parks"), and Willie
Richardson ("Richardson"). Parks is an African-American female, born in 1968, who has no known disabilities. Parks began
her employment with CIT as an Accounting Clerk in 1997 and has
worked only in the Accounting Department. Richardson is an
African-American male, also born in 1968, who has no known
disabilities. Richardson began his employment with LFG's
Collections and Tax Departments in 1997; he transferred to the
Accounting Department in 2001. Plaintiff was not responsible for
supervising Parks and Richardson.
Staff Accounts are responsible for booking the daily cash
activity for their case accounts in the General Ledger and
maintaining a running total of that activity. Staff Accountants
are also responsible for reconciling the daily booking of leases
between two computer programs, processing accounts payable items
received each day, and preparing various daily, weekly, and
The Accounting Department was an independent department at LFG.
In November 2002, however, the department was reorganized to
become part of a combined Accounting/Compliance Department.
Because of the reorganization, Accounting Department personnel
gained the additional responsibility of managing funding for the
leases booked each day. The manager of the Accounting Department,
Anthony Szabo ("Szabo") needed one of the three Staff Accountants
to assist in these funding duties. Szabo is a Caucasian man, born
in 1967. Szabo requested a volunteer since the additional work
had to be performed at the end of the day, most likely after
hours, and would take approximately 15 to 20 minutes. Defendant
maintains that Richardson was the only Staff Accountant to
volunteer and that he already handled additional work preparing
tax filings. Plaintiff disputes this; she maintains that the
additional tax filing work was rotated weekly between the three
Staff Accountants. Szabo has been responsible for supervising Parks since 1997,
Plaintiff since 1998, and Richardson since 2001. As Accounting
Manager, Szabo is responsible for preparing the Staff
Accountants' performance reviews and recommending their merit
salary increases. The performance evaluations are completed in
January or February for the preceding year. The performance
rating scale is 1 to 4, with 1 ("Outstanding") being the highest
possible rating and 4 ("Needs Improvement") being the lowest. A
rating of 2 is characterized as "Exceeding Expectations" and 3 as
Szabo prepared the 2003 performance evaluations and discussed
them with each Staff Accountant in February 2004. He gave the
Staff Accountants the following ratings: Plaintiff received a
2.17, Parks received a 2.09, and Richardson received a 1.84.
According to Szabo, all three Staff Accounts were solid
performers in 2003. He rated Parks slightly higher than Plaintiff
because of Parks' substantial contribution to tax filing work in
the beginning of 2003. He rated Richardson slightly higher than
both Parks and Plaintiff because of his outstanding work
performance, his extra work with the additional funding and tax
filing responsibilities, and his willingness to handle additional
duties and tasks as needed.
Szabo's 2004 salary merit increase recommendations for the
Staff Accountants were based on their performance ratings in
2003. Szabo also sought to equalize the disparity in Richardson's
salary. Richardson's performance in 2003 was better than that of
the other two Staff Accountants and he handled greater
responsibilities. Yet, prior to the 2004 merit increases,
Richardson was paid less than Parks and Plaintiff. Szabo believed
there was no justification for this disparity. Thus, in 2004,
Plaintiff received a 2% merit increase, which increased her
annual salary to $36,000. Richardson received a 4% merit
increase, which increased his annual salary to $36,000. Parks received a 2.09% merit increase, which
increased her annual salary to $36,325.
D. Jobs to Which Plaintiff Applied But Was Not Promoted
1. Vendor Account Assistant September 2003
Defendant had an opening for Vendor Account Assistant in
September 2003. The Vendor Account Assistant is responsible for
assisting Vendor Representatives and Sales Consultants with all
aspects of the vendor relationship at the transaction level. The
ideal candidate would have strong writing and communication
skills, a strong interest in sales, and prior sales experience.
Plaintiff learned of the position from a posting on the
bulletin board in LFG's kitchen. She applied for the position by
submitting her resume to Mahon and interviewed for the position.
Defendant maintains that Plaintiff was not qualified for the
Vendor Account Assistant position because her only experience at
LFG was in Accounting, where she did not obtain any customer
service experience. Plaintiff counters that the job posting did
not state that only customer service experience with LFG was
considered for the job.
Lissette Ortega ("Ortega") was the successful applicant. Ortega
is a Hispanic woman, born in 1970, with no known disability.
Defendant maintains that Ortega received the position because of
her prior customer service experience with LFG, because she
exhibited the ability to handle a lot of responsibility, because
she was willing to take initiative to complete tasks not
associated with her position, and because she received excellent
performance reviews from her supervisor, who described her as an
"ideal employee." Plaintiff never worked in the same department as Ortega.
Plaintiff never supervised Ortega or saw her performance reviews.
2. Operations Specialist January 2004
In December 2003, LFG created a new position, Operations
Specialist, to support Sarai Sierra, the Operations Manager for
LFG. The duties of the Operations Specialist included running
production reports, managing the time and attendance for all
employees, supervising the employees, receiving requests for time
off, monitoring violations of CIT policies, addressing problems
in the work product, reconciling data entry errors, and
monitoring excessive data errors by employees.
Defendant posted the position opening in December 2003 and
January 2004 on the CIT Employee Intranet. In addition,
information about the opening was posted in the two lunchrooms at
the LFG offices.
Sierra, to whom the Operations Specialist would report, was
responsible for interviewing the candidates and selecting the
successful candidate. Sierra is a Hispanic female born in 1971.
Sierra stated that she was looking for an individual on whom she
could depend to address department-related problems, an
individual who would be responsive to employees' issues, and one
who would be willing to put forth extra effort to get the job
Six internal candidates, including Plaintiff, applied for the
position. After interviewing each candidate, Sierra selected
Glenda Deleon, a Hispanic woman with no known disabilities, born
in 1977. Sierra believed Deleon was the most qualified individual
for the position. According to Sierra, Deleon possessed the
broadest spectrum of work experience and skills necessary for the position and had always demonstrated commitment
to her work and willingness to give extra effort. Sierra knew the
above because she supervised Deleon in 2000. Sierra also knew
Deleon was responsive to inquires and possessed the customer
service skills necessary for the position.
Sierra stated that she did not select Plaintiff for the
Operations Specialist position because Plaintiff had limited
experience in the origins and lease verification functions the
position involved. Plaintiff also had less experience than Deleon
in some of the technology systems used in the origins and lease
verification work. In addition, Sierra did not believe Plaintiff
possessed the same degree of initiative, interpersonal skills,
and willingness to give extra effort to her work as Deleon.
Plaintiff never worked with nor supervised Deleon. Plaintiff
stated that she was unaware of Deleon's qualifications. In
addition, Plaintiff was never told by anyone from LFG that she
did not receive the position because of her age or race. Sierra
never mentioned Plaintiff's age or race during the interview.
Plaintiff never mentioned to Mahon that she believed she was not
hired because of her race and age.
3. Additional Positions
In April 2003, Plaintiff applied for the Operations Manager
position. The Operations Manager was responsible for supervising
and managing various departments, including Lessee Affairs and
Customer Service. Plaintiff was interviewed for the position.
Afterwards, however, the president of LFG, Bill Healy ("Healy"),
informed all of the interviewees that he decided to eliminate the
position of Operations Manager. Instead, the new position of Legal Department
Supervisor/Operations Supervisor was created to head the Lessee
Affairs department. All applicants were advised that they could
apply for this new position. As a liaison for corporate and
outside legal counsel, the Supervisor would be responsible for
monitoring lawsuits, negotiating settlements, communicating with
outside counsel about pending lawsuits, and preparing monthly
reports. Applications for the position needed some supervisory
experience and experience with certain computer programs.
Plaintiff applied for the position in April 2003 by submitting
her resume to Mahon. Plaintiff was not interviewed for the
position. Defendant notes that Plaintiff never worked in the
Lessee Affairs department, did not have any experience in the
legal field as she had only worked in the Accounting Department,
and did not have any supervisory experience. Plaintiff notes that
while she did not have supervisory experience at LFG, she had
supervisory experience from previous employment.
Nakia Akins ("Akins") was the successful candidate. Akins is an
African-American woman, born in 1975, with no known disabilities.
Defendant asserts that Akins was qualified for the position
because she had worked in the Lessee Affairs department.
Plaintiff never saw Akins' resume and never had the opportunity
to review Akins' work. Plaintiff testified that she was unable to
state whether Akins was qualified for the position as she never
worked with Akins and was not her supervisor. Plaintiff was never
told that she did not receive the position because of her race,
age, or disability.
E. Plaintiff's Complaints Plaintiff complained to former Human Resources Representative
Mahon on two occasions about alleged discrimination, once in 2002
and once in 2004. In 2002, Plaintiff complained that, because of
her race, she was advised that the Customer Service Supervisor
position to which she had applied would not include a salary
increase. Plaintiff withdrew her application upon learning about
the salary and thus was not considered for the position. Mahon
and the president of LFG, Bill Healy, explained this to Plaintiff
in a meeting convened to discuss her complaint.
In 2004, Plaintiff complained because Mahon posted the Vendor
Team Leader position only on the Company intranet and not also in
the kitchen as previously done with open positions. Plaintiff
complained to David Dougan, Director of Human Resources for LFG.
Dougan is a Caucasian male born in 1955. Specifically, Plaintiff
complained in an e-mail to Dougan that Mahon was playing
favorites in failing to post the position in the kitchen and
likened this type of behavior to insider trading. Plaintiff did
not tell Dougan she felt she was not told about the job because
she was black. In response to the e-mail, Dougan called
Plaintiff. He advised her that CIT policy is and has been to post
open positions on the CIT Employee Intranet, and that the failure
to post the position in the kitchen was not comparable to insider
trading. At no time during this conversation did Plaintiff
mention her belief that she was not told about the job because of
her race, age, or disability. Plaintiff contends that the
telephone and e-mail conversations between Plaintiff and Dougan
constituted a step in the formal grievance process as described
in the Employee Handbook. In 2004, Plaintiff also complained to Human Resources in
Livingston, New Jersey that the Chief Financial Officer for LFG
did not speak to anyone but the Executive Vice President at the
company. III. ANALYSIS
Defendant advances several reasons why summary judgment in its
favor is appropriate.
A. Time Bar
Plaintiff's Complaint generally alleges that Defendant
discriminated against her beginning on or about August 1, 1998,
exactly one month after Plaintiff's employment at LFG began.
Plaintiff's Complaint specifically points to Defendant's failure
to promote her in January 2004 and its allegedly discriminatory
pay raises in March 2004.
Plaintiffs who have filed their complaint with a state agency
or, as in the case of Illinois, had their complaint cross-filed
with a state agency, have 300 days from the alleged
discriminatory action to file a charge with the EEOC.
42 U.S.C. §§ 2000e-5(e) (2005); Mohasco Corp. v. Silver, 447 U.S. 807,
810 (1980). Being fired, demoted, not promoted, or transferred is
"a single, significant event, not a continuing act." Place v.
Abbott Laboratories, 215 F.3d 803, 808 (7th Cir. 2000). Accord
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114
(2002) ("Discriminatory acts such as termination, failure to
promote, denial of transfer, or refusal to hire are discrete
acts, each of which "constitutes a separate actionable `unlawful
employment practice.'"). A plaintiff can only file a charge that
covers discrete acts that occurred within the appropriate time
Plaintiff's allegations that Defendant failed to promote her
and to give her a pay raise commensurate with her education and
experience are discrete acts. Plaintiff filed her complaint with
the EEOC on March 24, 2004. Therefore, only incidents that took
place within the timely filing period of 300 days before March 24, 2004 are actionable.
Any discrete discriminatory acts that occurred before May 29,
2003 are not actionable.
Accordingly, to the extent that Plaintiff seeks to litigate
incidents that took place between August 1, 1998 and May 29, 2003
namely, her withdrawn application for the Customer Service
position in 2002 and her application for the Legal Department
Supervisor/Operations Supervisor position in April 2003 those
charges are untimely. This Court will consider only Plaintiff's
allegations that Defendant discriminated against her by denying
her a promotion to the Operations Specialist position in January
2004 and granting her co-workers higher pay raises in March 2004.
B. Sex Discrimination and Related Charges
Given that Plaintiff's Complaint asks the Court to direct the
Defendant to "[p]ay the plaintiff back wages equal to the salary
(highest) paid non-African-American executive males at the
company with less education and experience," the Complaint
appears to assert Title VII claims for intentional wage
discrimination based on sex. (Compl. ¶ 16(f).) Plaintiff also
checked the boxes in her Complaint indicating claims for failure
to stop harassment and retaliation.
"A Title VII plaintiff may bring only those claims that were
included in her EEOC charge, or that are like or reasonably
related to the allegations of the charge and growing out of such
allegations." Geldon v. South Milwaukee School District,
414 F.3d 817, 819 (7th Cir. 2005) (internal citations omitted).
Plaintiff did not include allegations of intentional wage
discrimination based on sex, harassment, or retaliation in her
EEOC charge and does not mention these allegations in the narrative part of the Complaint that
describes the events underlying her claim. Nor are her current
allegations of wage discrimination based on sex, harassment, and
retaliation "reasonably related" to the only allegations in her
EEOC charge discrimination on the basis of race, age, and
disability. "Claims are reasonably related if there is a factual
relationship between them. . . . At a minimum, this means that
the EEOC charge and the complaint must describe the same conduct
and implicate the same individuals." Ezell v. Potter,
400 F.3d 1041, 1046 (7th Cir. 2005) (internal citation omitted). As the
EEOC charge does not describe sexually discriminatory, harassing,
or retaliatory conduct at all, the charge and the Complaint are
not reasonably related as to these claims. Accord Crawford v.
Bank of America, et al., 986 F. Supp. 506, 508 (N.D. Ill. 1997)
("An allegation of race discrimination is not `like or reasonably
related to' an allegation of sex discrimination.").
Because Plaintiff did not include claims for intentional wage
discrimination based on sex, harassment, and retaliation in her
EEOC charge or anything related to those claims in her EEOC
charge, she may not proceed on those claims in this Court.
C. Disability Discrimination
Defendant argues that it is entitled to summary judgment on
Plaintiff's disability claims because Plaintiff cannot establish
a prima facie case of failure to accommodate on the basis of
disability. Nor, Defendant argues, can Plaintiff establish that
LFG's reason for not promoting her is pretextual.
To establish a claim for failure to accommodate a disability, a
plaintiff must show that: (1) she is a qualified individual with
a disability; (2) the employer was aware of her disability; and (3) the employer failed to reasonably accommodate the
disability. Equal Employment Opportunity Commission v. Sears,
Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005). A person is a
"qualified individual with a disability" under the ADA if she has
a physical or mental impairment which substantially limits one or
more of the major life activities, if she has a record of such an
impairment, or if she is regarded as having such an impairment.
42 U.S.C. § 12102(2) (2005).
Although asthma qualifies as a physical impairment, Plaintiff
cannot establish that her asthma substantially limits one or more
major life activity. A person whose impairment is corrected by
medication or other measures does not have an impairment that
substantially limits a major life activity for the purposes of
the ADA. See Sutton v. United Air Lines, Inc., 527 U.S. 471,
482-489 (1999) (holding that "the ADA's coverage is restricted to
only those whose impairments are not mitigated by corrective
measures"). Plaintiff has stated that her medication controls her
asthma and allows her to perform all of her job functions.
Plaintiff's asthma does not make her a qualified individual
with a disability; nor does her the hearing loss in her right
ear. Plaintiff did not inform Defendant of the hearing loss.
Since "[a]n employee has the initial duty to inform the employer
of a disability before ADA liability is triggered for failure to
provide accommodations," Plaintiff's claim against LFG for
failure to accommodate her hearing loss cannot survive.
Hunt-Golliday v. Metropolitan Water Reclamation District of
Greater Chicago, 104 F.3d 1004, 1012 (7th Cir. 1997).
In sum, Defendant is entitled to summary judgment on
Plaintiff's disability claims because Plaintiff cannot establish
a prima facie case of "failure to accommodate" disability discrimination. Because Plaintiff cannot state a claim, the Court
need not determine whether she is able to prove LFG's reason for
not promoting her is pretext for disability discrimination.
D. Failure to Promote and Intentional Wage Discrimination
What remains are Plaintiff's allegations that Defendant failed
to promote her and intentionally paid her less based on her race
and age. Defendant argues that it is entitled to summary judgment
because Plaintiff cannot establish a prima facie case for either
of these allegations.
1. Failure to Promote
Plaintiff's Complaint and Memorandum in Opposition to
Defendant's Motion for Summary Judgment presents no direct
evidence of discrimination and no circumstantial evidence
allowing the jury to infer intentional discrimination, as
required by the direct method of proving discrimination on the
basis of race or age. See Rogers v. City of Chicago,
320 F.3d 748, 753-754 (7th Cir. 2003). Therefore, Plaintiff must establish
a prima facie case of failure-to-promote discrimination via the
indirect burden-shifting method outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Plaintiff must do so by
demonstrating that (1) she belongs to a protected group; (2) she
applied for and was qualified for the positions sought; (3)
Defendant rejected her for the positions; and (4) Defendant
granted the promotions to persons who were not in the protected
groups and who were not better qualified than Plaintiff. See
id. at 802; Grayson v. City of Chicago, 317 F.3d 745, 748
(7th Cir. 2003). If Plaintiff establishes her prima facie case,
the Court must presume that she was discriminated against, and
Defendant must articulate a legitimate, nondiscriminatory reason for its employment action.
Id. Once Defendant has met this production burden, Plaintiff
must establish that the reason offered by Defendant is merely a
pretext for discrimination. Id.
Plaintiff's failure-to-promote claim cannot survive summary
judgment because she cannot satisfy the fourth prong of the
McDonnell Douglas framework. Plaintiff has not provided any
evidence that the persons whom Defendant promoted to Operations
Specialist in January 2004 and Vendor Account Assistant in
September 2003 were similarly or less qualified than Plaintiff.
Plaintiff's Memorandum in Opposition does not provide any
information about the qualifications of Lissette Ortega and
Glenda Deleon. Indeed, her Memorandum in Opposition contains no
argument. It merely states that "Plaintiff substantially agrees
with the Lease Finance Group summary of facts" and lists seven of
Defendant's facts with which Plaintiff disagrees, none of which
address the qualifications of Ortega and Deleon.*fn2 (Pl.'s
Mem. in Opp. to Def's Mot. for Summ. J. at 1.)
Plaintiff Kennedy is similar to the plaintiff in Greer v.
Board of Education of the City of Chicago, 267 F.3d 723, 727
(7th Cir. 2001), who proposed undisputed facts of his own, but
merely circled the defendant's facts with which he disagreed
without stating the reason why and failed to cite any evidence in
support of his pleadings. Greer failed to comply with the Local
Rule 56.1, as has Plaintiff. See supra note 1. The Seventh
Circuit ruled that, despite Greer's pro se status, "[e]mployment discrimination cases are extremely
fact-intensive, and neither appellate courts nor district courts
are obliged in our adversary system to scour the record looking
for factual disputes." Greer, 267 F.3d at 727.
Indeed, nothing in the pleadings or briefs Plaintiff has
submitted to this Court creates evidence of a factual dispute
about Defendant's promotion decisions. Nor Plaintiff does point
to any affidavits, depositions, answers to interrogatories, or
admissions that would create an issue of material fact about
Ortega and Deleon's qualifications. The materials Plaintiff
submits with her Memorandum in Opposition are unhelpful.
Plaintiff provides the LFG telephone directory; her resume; the
relevant job postings; an affidavit from a former employer
swearing as to Plaintiff's supervisory experience and fine
qualities as an employee; her disability statements; and an email
to Szabo containing complaints about Parks and confirming that
some work in the department was rotated. None of these documents
help Plaintiff to establish that she was equally or better
qualified than the successful candidates.
In sum, as shown by Plaintiff's deposition testimony, Plaintiff
simply believes she was not promoted because of her race and age.
More than once, the Seventh Circuit has "upheld the entry of
summary judgment against a Title VII plaintiff who has presented
only his own uncorroborated, conclusory statements that similarly
situated co-workers were treated differently." Oest v. Illinois
Dept. of Corrections, 240 F.3d 605. 714 (7th Cir. 2001).
Accordingly, Defendant is entitled to summary judgment on
Plaintiff's failure-to-promote claim.*fn3 2. Intentional Wage Discrimination
Since Plaintiff has alleged that Defendant awarded her
co-workers higher pay raises than it awarded her in March 2004,
she must also state a prima facie case of disparate
compensation.*fn4 Plaintiff must show that: (1) she is a
member of a protected group; (2) she was fulfilling her
employer's legitimate performance expectations; and (3) she
suffered an adverse employment action in that she was paid a
lower salary than a "similarly situated" nonprotected class
member. Dandy v. United Parcel Service, Inc., 388 F.3d 263, 274
(7th Cir. 2004). "To be `similarly situated,' [a plaintiff] must
show that her performance, qualifications, and conduct were
comparable to the nonprotected class member in `all material
respects.'" Id. (internal citations omitted). The McDonnell
Douglas framework still applies: Once a plaintiff has made out a
prima facie case, the defendant must articulate a legitimate,
nondiscriminatory reason for its pay decisions, and the plaintiff
still bears the burden of showing the defendant's proffered
reasons for the disparity are merely a pretext for
discrimination. Ghosh v. Indiana Dept. of Environmental
Management, 192 F.3d 1087, 1094 (7th Cir. 1999). A plaintiff
does not reach the pretext stage unless she first establishes a
prima facie case of discrimination. Also, because Title VII
requires intent to discriminate, a plaintiff "must establish that
the pay disparity resulted from an actual desire" on the part of
the defendant to pay the plaintiff less. Id. Defendant is entitled to summary judgment on Plaintiff's
intentional wage discrimination claim. Plaintiff has not provided
any facts to suggest that she was paid a lower salary than a
"similarly situated" nonprotected class member. Since Plaintiff
has not controverted Defendant's facts on this issue, Defendant's
facts are deemed admitted. Defendant contends that it based its
pay increases for 2004 on the performance ratings for 2003. These
ratings show that Plaintiff was not similarly situated to her
co-workers Richardson and Parks, since Plaintiff received the
lowest rating of the three Staff Accountants. In addition,
despite her low rating, Plaintiff received the same 2% merit
increase as Parks, who had the next highest performance rating.
Aside from registering disagreement with Defendant's material
fact that Richardson, the most highly rated Staff Accountant,
alone shouldered much of the additional work in the department,
Plaintiff has made no statement and produced no evidence that
would suggest her performance, qualifications, and conduct were
comparable to that of her younger co-workers.
Even assuming Plaintiff was similarly situated to Richardson
and Parks, Plaintiff has not met her burden of showing
Defendant's proffered reasons for the alleged pay disparity (the
better performance records of and greater responsibilities
handled by Parks and Richardson, as reflected in the performance
ratings) are merely a pretext for discrimination. Plaintiff's
pleadings and Memorandum in Opposition do not even mention
Defendant's reasons for providing Richardson a 4% pay increase or
making Parks' salary $325 more than Plaintiff's salary. The
materials she submits with her Memorandum in Opposition,
described above, are unhelpful. Finally, Plaintiff has provided
nothing to establish that the pay disparity resulted from an
"actual desire" on Defendant's part to pay Plaintiff less because
of her race and age. Ghosh, 192 F.3d at 1094. Without
additional facts identified by Plaintiff in affidavits,
depositions, answers to interrogatories or admissions, there is simply not
enough evidence for a reasonable jury to return a verdict for
Plaintiff. Likewise, without actual argument by Plaintiff, there
are no reasonable inferences to draw in her favor. Consequently,
Defendant is entitled to summary judgment on Plaintiff's
intentional wage discrimination claim.
For the foregoing reasons, Defendant's motion for summary
judgment is GRANTED. This case is closed.
© 1992-2006 VersusLaw Inc.