The opinion of the court was delivered by: Richard Mills, District Judge
This case is before the Court on the Defendant's motion for summary judgment.
Plaintiff Sarah Gardner alleges that her employer, the Illinois Department of Children and Family Services ("the Defendant" or "DCFS"), retaliated against her for exercising her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). The Defendant contends it is entitled to summary judgment because the Plaintiff is unable to make out a prima facie case of retaliation. The Defendant further claims that even if the Plaintiff could allege a prima facie case, she is unable to produce evidence which shows that its legitimate reasons for the employment decision are pretextual.
A. Defendant's Undisputed Material Facts
DCFS is an agency in Illinois engaged in providing child welfare services. The senior executive for DCFS is the Director. In 2003, there were a number of divisions within DCFS, with the chief of each division reporting to the Director. In some instances, these positions were titled "Chief," and in others they were titled "Deputy Director." The Defendant alleges that the divisions included, among others, External Affairs, Personnel and Affirmative Action. The Plaintiff disputes the contention that the affirmative action position was a "division." She claims that Director Bryan Samuels testified "that the affirmative action position did not in and of itself have a division."
The Defendant alleges that the Plaintiff has been employed at DCFS since 1989 as an assistant affirmative action officer. The Plaintiff notes that from January 1, 2003 through December 31, 2003, she worked as the acting chief of affirmative action. In April 2000, the Plaintiff filed a lawsuit against DCFS challenging her classification and compensation, and the claim was settled. The Defendant alleges that Director Samuels knew nothing about the 2000 lawsuit until after this current lawsuit was filed. The Plaintiff disputes this allegation, contending Samuels admitted that he had knowledge of the prior lawsuit.
In January 2003, Rod Blagojevich was sworn in as Governor of Illinois, and on January 17, 2003, Bamani Obadele was assigned to DCFS as the Governor's liaison and Deputy Director of External Affairs, and during the next few months he had some role, as the Governor's liaison, in selecting candidates for senior positions. The Plaintiff generally agrees with this assertion. She claims, however, that the conclusion Mr. Obadele "had some role" in DCFS personnel matters greatly minimizes the role he played. On April 15, 2003, Samuels was appointed as DCFS Director, and in May 2003, Robin Staggers became DCFS' Deputy Director over Personnel. The Defendant alleges that thereafter, Obadele had no further authority concerning the employees outside the External Affairs Division. The Plaintiff disputes the assertion that Obadele had no authority regarding personnel matters after Staggers was hired.
On May 21, 2003, Staggers' second day in her new position, the Plaintiff met with Staggers for the first time, but that meeting did not go well. According to the Plaintiff, there was "bickering" between the Plaintiff and Joni Stahlman, the Chief of Personnel who was also present at the meeting, and it was a bad meeting. The Defendant alleges that Staggers denies knowing about the Plaintiff's 2000 lawsuit at any time during 2003. The Plaintiff contends this assertion is belied by the testimony of Bryan Samuels and by statements which are attributed to Bamani Obadele.
During the summer of 2003, changes were being made concerning the Affirmative Action Chief Position. The Defendant alleges one such change is that the new administration issued directions to each of the agencies (including DCFS) through the Department of Central Management Services ("CMS") that deputy director positions should be changed from code positions to double exempt positions. The Plaintiff disputes the notion that CMS mandated that the affirmative action chief position become "double exempt." A double exempt position (often termed "4d3" based upon that provision of the Illinois Personnel Code) is one which is exempt from the requirements of the Illinois Personnel Code and from Rutan;*fn1 it includes positions where the incumbent is appointed by the Governor and serves at will. The Defendant alleges that neither the Governor, CMS nor it had the authority to change the exemption code. The Plaintiff disputes this assertion to the extent it suggests that neither the Governor, CMS nor DCFS had a role in creating a double exempt position. She notes that although the exemption decision must be approved by the Civil Service Commission, the process is initiated at the agency level.
On June 13, 2003, DCFS sent a letter to CMS, asking that the affirmative action chief position be considered for 4d3 exemption. On June 17, CMS forwarded the request to the Illinois Civil Service Commission. One month later the Commission approved the request, and the position description was changed to reflect the 4d3 exemption.
In 2003, DCFS did not have the unilateral authority to fill vacant positions, modify job descriptions, or set compensation. Job descriptions and compensation plans were maintained by CMS and filling vacancies, especially for exempt positions, had to be approved by the Governor's office. When DCFS sought to fill deputy director-level positions, the process included consultation with the Governor's office, selection of a candidate, CMS approval concerning the position and compensation, approval from the Governor's Office of Management and Budget ("OMB") and then approval from the Governor's office. Additionally, sometimes changes to the position descriptions--such as work locations--needed to be made before a candidate could be hired. Finally, if the proposed candidate was currently employed by the State in a position covered by the Illinois Personnel Code, the candidate was required to resign from that position before he or she could be appointed to the vacant position.
The Defendant next alleges that while the Director and/or the Governor's office selected the candidate, staff members in DCFS' Personnel Division shepherded the paperwork through the bureaucratic process. The Plaintiff disputes this assertion to the extent it suggests that Robin Staggers' only role in the hiring process was to shepherd the paperwork through the process.
The Defendant further claims that another significant change that occurred came about somewhat more gradually in 2003; as members of the new administration became more acclimated into their new roles, it became common knowledge that the State was facing a significant budget problem. Accordingly, a guideline was instituted state-wide whereby the amount of pay raises available to individuals being promoted was limited. The Defendant contends, therefore, that some individuals received substantial pay increases when they were promoted in late 2002 (under the prior administration) or early 2003 (before the pay guideline was implemented), but by mid-summer 2003, promotion-based pay increases were generally limited to eight percent. The Plaintiff disputes these statements, asserting that DCFS can point to no person or written instructions supporting this notion. More importantly, she alleges Director Samuels stated that this "rule" was in effect the entire time and was not developed later in 2003.
In December 2002, DCFS' Affirmative Action Chief retired and in January 2003, the Plaintiff was assigned as the acting chief. The Defendant alleges the Plaintiff then sought out individuals she perceived to have political influence in the hopes of seeking promotion to the position, an assertion which the Plaintiff says is irrelevant. The Defendant further claims that the Plaintiff also began talking with Obadele about the position and even after Staggers' appointment, despite Obadele's lack of authority over personnel matters, Plaintiff continued to seek out Obadele and rely upon him for office gossip and his perceived political influence. The Plaintiff reiterates that the parties dispute the extent of Obadele's role in DCFS personnel decisions. The Plaintiff states that it was "very obvious to anybody in the department that [Obadele] had a lot of power." Therefore, on March 11, 2003, the Plaintiff told Obadele that she was interested in becoming the affirmative action chief. On May 20, 2003, she met with Director Samuels and expressed her interest in promotion to affirmative action chief, telling the Director on two occasions that she wanted a pay increase from about $48,000 to $85,000 per year.
The Defendant alleges that at about that time, Director Samuels and Robin Staggers met to discuss the position, and Staggers recommended considering other applicants outside the agency (pursuant to the 4d3 exemption), in order to ensure that the Director had access to a broader pool of candidates and to maximize the possibility of selecting the best candidate for the job. The Plaintiff agrees that Staggers told Director Samuels to expand the search; she claims, however, that the justifications offered by Staggers for doing so are a pretext. Though he considered other candidates, the Director determined the Plaintiff was the best candidate for the position.
The Plaintiff testified that on June 19, 2003, Obadele "officially offered [her] the position on behalf of the director," and told her that "they were giving $10,000 or 5%, whichever was greater." The Plaintiff then met with the Director on July 7, 2003, where he formally offered Plaintiff the position of affirmative action chief,*fn2 and Plaintiff testified that she expressed several concerns about taking the position, including the reporting structure, and that she would "not take the position--I will not take a double exempt." At the meeting, the Plaintiff did not talk with the Director about work location or the timing of the promotion. On August 4, 2003, the Plaintiff met with the Director and learned that the Governor's Office had not yet signed off on her promotion. On or about September 16, 2003, the Plaintiff's nomination was approved by the Governor's Office so that the formal appointment process could commence.
On October 7, 2003, CMS approved a change in the job description for the affirmative action chief position, changing the work location from Cook County to Sangamon County, because the Plaintiff lived in Sangamon County and the prior incumbent had been in Chicago. Thereafter, between October 23, 2003 and November 7, 2003, DCFS obtained all of the necessary formal approvals for the Plaintiff to be promoted to affirmative action chief. On November 17, 2003, the documents that the Plaintiff was required to sign in order to be promoted to that position were faxed to her. The Defendant claims even though the Plaintiff knew that by then that "they weren't giving out $10,000 anymore," she refused to sign the paperwork to accept the position because the position was double exempt and because she considered the eight percent pay increase to be insufficient. The Plaintiff claims this assertion mischaracterizes her testimony; she states, moreover, that individuals received significant amounts of money when they were appointed to various positions at DCFS.
On November 26, 2003, the Director's Chief of Staff, Tom Berkshire, reported, in writing, that Plaintiff "told me that she was not interested in the position as it was now established, and at the pay level she was offered. She stated that the entry SPSA level even though it was an increase in salary was not sufficient related to her years of experience with the agency." Because the Plaintiff declined the position, DCFS thereafter selected Alice Kirby for it. When Kirby started as affirmative action chief, she assumed many of the duties the Plaintiff had performed while acting in that capacity.
The Defendant alleges that the several-month long promotion process was not unique to the Plaintiff; the nominee for DCFS' Chief Counsel position faced similar delays and difficulties. That candidate also received only an eight percent increase when she was ultimately placed into the chief counsel position, which was also double exempt. This individual had not filed any Title VII claims against DCFS. The Plaintiff claims this statement mischaracterizes her testimony, and that she is able to point to others who were treated more favorably.
The Defendant alleges that throughout this period, the Plaintiff had a number of people within the Department with whom she gossiped and shared rumors, including Obadele, Pat Schrodt (the Directors' secretary), Leshonda Rogers (Obadele's secretary), and even "the word around the street." The Plaintiff disputes this statement to the extent it suggests that the statements made to her by Obadele were gossip and rumors. Rather, they were statements made by a person with significant authority within DCFS. The Defendant claims the Plaintiff knew enough to recognize that the rumors and Obadele's statements were suspect; she testified that "it became to the point even from Mr. Obadele that I began to feel that he got some kind of great joy out of the bickering that [Staggers] had towards me, and as much as I liked him, there became a time when I refused to play that game." The Plaintiff asserts the conclusory nature of the Defendant's statement is not supported by the facts.
The Defendant notes the Plaintiff also testified that in July 2003, she heard a rumor that DCFS had hired someone else as affirmative action chief, and that she called Obadele, Peters and the Director about that rumor, and learned it was not true. The Plaintiff agrees with this assertion and further states that the fact that Obadele was able to say the rumor was not true is a reflection on his power with respect to personnel decisions at DCFS.
The Defendant contends the Plaintiff's allegations concerning Staggers are based primarily upon this gossip and rumors--statements she claims were made by Tom Berkshire, Obadele and Schrodt. DCFS notes that Plaintiff claims Berkshire told her that "Robin had this big thing" against her. Moreover, the Plaintiff claims Schrodt told her that she had overheard a telephone conversation involving Staggers, where Staggers supposedly said "that a person like me had no business being in affirmative action," and that "Robin was doing everything in her power to prevent me from getting the job." The Defendant further notes that the Plaintiff has alleged Obadele made several statements about Staggers and how Staggers felt about Plaintiff getting the position. The Plaintiff disputes the Defendant's description of Obadele's statements as "gossip" and "rumors." She notes that her brief makes clear why Obadele's statements are more than gossip. The Plaintiff never approached Staggers about these rumors or allegations.
Although the Plaintiff did not know the details of the pay guidelines in effect in the summer and fall of 2003 for compensation in promotion cases, and does not know of anyone who was promoted after May 2003 and received an increase greater than eight percent, Plaintiff claims that others received greater percentage increases than she, identifying Keith Langston and Arthur Bishop. Mr. Langston was promoted on June 1, 2003 from Child Protection Advanced Specialist to SPSA, and he received a fifteen percent pay increase. Mr. Bishop resigned from a covered SPSA position on May 31, 2003, and he accepted an exempt appointment to SPSA effective on June 1, 2003, and he received a 30% pay increase as a special salary adjustment.
B. Plaintiff's Undisputed ...