The opinion of the court was delivered by: Jeanne E. Scott, District Judge
This matter is before the Court on Defendant's Motion for Summary Judgment (d/e 21), Defendant's Motion to Strike Portions of Plaintiff's Affidavit (d/e 30), and Defendant's Motion for Leave to File Supplemental Evidence (d/e 29). Plaintiff Kitsy Amrhein was employed by Defendant Health Care Service Corporation (HCSC) from 1985 until her employment was terminated on March 1, 2004. Amrhein's two-count Complaint (d/e 1) alleges violations of Title VII of the Civil Rights Act of 1964 by her former employer. See 42 U.S.C. § 2000e et seq. In Count 1, Amrhein alleges that she was discriminated against based on her gender in violation of 42 U.S.C. § 2000e-2(a). In Count 2, she claims that HCSC terminated her employment in retaliation for her efforts to oppose gender discrimination in violation of 42 U.S.C. § 2000e-3. HCSC seeks summary judgment on each of Amrhein's claims. For the reasons set for below, HCSC's Motion for Summary Judgment is allowed.
As a preliminary matter, the Court must address Defendant's Motion to Strike Portions of Plaintiff's Affidavit and Defendant's Motion for Leave to File Supplemental Evidence. As set forth below, the Motion to Strike is denied, and the Motion to File Supplemental Evidence is allowed, in part, and denied, in part.
Defendant asks the Court to strike portions of Plaintiff's Affidavit, which was submitted as Exhibit 1 to the Memorandum of the Plaintiff, Kitsy J. Amrhein, in Opposition to the Defendant's Motion for Summary Judgment (d/e 26) (Plaintiff's Opposition). Specifically, Defendant asserts that ¶ 18, the tenth sentence in ¶ 24, and ¶ 25 should be stricken because they conflict with Plaintiff's prior deposition testimony. As Defendant correctly notes, "[a] plaintiff cannot . . . create an issue of material fact by submitting an affidavit that contradicts an earlier deposition."
Pourghoraishi v. Flying J, Inc., 449 F.3d 751 (7th Cir. 2006). In a situation where "a conflict arises between a plaintiff's sworn testimony and a later affidavit or declaration, the 'affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.'" Id. (quoting Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir. 1999)). As set forth below, the Court finds no conflict in the identified sections, and thus, the Motion to Strike is denied.
Paragraph 18 of Amrhein's Affidavit details an incident involving supervisor Jane Marquedant that occurred on February 18, 2004. Defendant asserts that ¶ 18 includes additional conflicting information concerning an incident the Plaintiff was questioned about at pages 250 to 257 of her deposition. See Plaintiff's Opposition, Exhibit Attachment 1, Affidavit of Kitsy J. Amrhein (Amrhein Affidavit), ¶ 18, & Exhibit Attachment 2, Deposition of Kitsy J. Amrhein (Amrhein Dep.), p. 250-57.*fn1
Specifically, Defendant points to the portion of Plaintiff's Affidavit that asserts that Marquedant made reference to Plaintiff "opening up a can of worms." See Amrhein Affidavit, ¶ 18. As Defendant correctly notes, Plaintiff did not testify to the "can of worms" statement by Marquedant when describing the incident in her deposition. However, the Court does not believe that a conflict exists between ¶ 18 and Plaintiff's sworn testimony. In relevant portion, ¶ 18 provides: "She replied by saying 'if you wanted to schedule all of your days, you should not have made a complaint.' She went on to make reference to me 'opening up a can of worms.'" Id. Plaintiff testified in her deposition that Marquedant told her that if she wanted to pick all of her planned time off ("PTO") days, she should not have complained in the first place and should not have gone and spoken with Kathy Jett. Amrhein Dep., p. 256. The information in the Affidavit is slightly more detailed, but not materially different from Amrhein's deposition testimony. See Thanongsinh v. Board of Education, 462 F.3d 762, 781 n. 16 (7th Cir. 2006). Defendant's request to strike ¶ 18 is denied.
The Court notes that some of the depositions are voluminous and have been broken into parts to be electronically filed. For clarity, the Court will cite to the depositions by the attachment numbers assigned by the Plaintiff. The Court further notes that Plaintiff has provided full transcripts of depositions while Defendant has provided only excerpts. For consistency, the Court will cite only to Plaintiff's full versions.
Defendant seeks to strike the tenth sentence in ¶ 24 of Amrhein's Affidavit, asserting that it conflicts with Plaintiff's deposition testimony. In ¶ 24, Plaintiff describes an instance in which she was called into supervisor Teresa Benner's office in early December 2003. Plaintiff asserts that Benner asked her to sign a written warning regarding excessive use of the telephone for personal reasons. Plaintiff refused to sign the warning, indicating that she felt her use of the telephone was not excessive and was much less than Scott Redpath's personal use of the telephone. Plaintiff further states that she reminded Benner that she was experiencing a family problem at the time. The tenth sentence of the paragraph states: "At the conclusion of the conversation, Ms. Benner who was upset stated to me 'you must think that I am a heartless bitch?'" Amrhein Affidavit, ¶ 24.
The following exchange occurred at Plaintiff's deposition:
Q: Did you ever complain about the use by Mr. Redpath of the phone for personal reasons?
A: Not until I received the original of this document [the written warning].
Q: And that was in December of 2003?
A: I said, this is not right. If anybody should get this document, it should be Scott, because he's the one that's always making personal phone calls.
Q: Who was a part of that meeting?
A: Just Teresa Benner and myself.
Q: And what did Miss Benner say in response?
A: She said that she didn't care what he did. She was only concerned with what I did.
A: I'm sure there was--I mean, it got--she raised her voice and screamed at me. I really don't remember everything that was said.
Amrhein Dep., p. 220-21. The tenth sentence in ¶ 24 does not conflict with this testimony, and Defendant fails to identify any other conflicting deposition testimony. Therefore, Defendant's request to strike the tenth sentence in ¶ 24 is denied.
Defendant seeks to strike ¶ 25 of Amrhein's Affidavit, which also relates to the early December 2003 incident. Paragraph 25 provides as follows:
At no time on the date of the incident described above did I ever state to Teresa Benner that I thought she was a heartless bitch or words to that affect. Furthermore, at no time on that date did I state "if you fuck with my family you fuck with me." Amrhein Affidavit, ¶ 25. Again, there is no conflict with the deposition testimony as set forth above, and Defendant fails to identify any other conflicting deposition testimony. Defendant's request to strike ¶ 25 is denied.
2. Motion for Leave to File Supplemental Evidence
Defendant seeks leave to file supplemental evidence consisting of five Affidavits and a series of inter-office memoranda. Amrhein challenges the proffered Affidavits of Angela Lael, Jennifer Tabor, and Corrine Porter in full, as well as paragraph 4 of the Affidavit of Jane Marquedant dated September 18, 2006 and paragraph 6 of the Affidavit of Teresa Benner dated September 18, 2006.*fn2 The challenged portions of the Affidavits deal primarily with a February 18, 2004, incident involving Marquedant and Amrhein. See infra p. 33-36 (describing the February 18, 2004, incident). The challenged portions contradict Amrhein's testimony, which the Court must credit at this stage in the proceedings. At most, they create an issue of fact, and the Court will not consider them in ruling on the pending Motion for Summary Judgment. Therefore, the Court will not consider Affidavits of Angela Lael, Jennifer Tabor, and Corrine Porter, paragraph 4 of the Affidavit of Jane Marquedant dated September 18, 2006, or paragraph 6 of the Affidavit of Teresa Benner dated September 18, 2006. Defendant's Motion to Supplement is allowed in all other respects.
Amrhein began her employment with HCSC in 1985. HCSC provides services to groups that have insurance through Blue Cross/Blue Shield. In 1997, Amrhein was promoted to a group specialist position in HCSC's Springfield (Illinois) Full Service Office, a position which she held until her termination on March 1, 2004. Group specialists were assigned to be primarily responsible for particular customer accounts, although they were also expected to serve as back-up for other group specialists as needed. Prior to March 2004, Amrhein was assigned to two large group health insurance accounts, United Airlines and Georgia Pacific. Another group specialist, Scott Redpath, was also assigned to service these groups.*fn3 Amrhein was considered the primary HCSC contact person for United Airlines, while Redpath was considered the primary contact person for Georgia Pacific.
As a group specialist, Amrhein was part of a Group Specialist Unit (GSU). At the time of her termination, there were eight group specialists in Amrhein's GSU: Amrhein, Redpath, Janet Row, Ellen Moore Hall, Angela Lael, Corrine Porter, Barb Brown, and Jennifer Kelly. Redpath was the only male employee in the GSU. Redpath had been employed by HCSC the longest of any employee in the GSU. At the time Amrhein was promoted to group specialist, the GSU was supervised by Debbie Ayers. From 1999 until 2000, Jane Marquedant supervised the GSU. Vickie King supervised the GSU for one year in 2001, and Tina Viara supervised the GSU for six months in 2002. From 2002 until Amrhein's termination in March 2004, the GSU was supervised by Teresa Benner. In 2004, Karen Woods was senior manager of the Springfield Full Service Unit. As such, she was responsible for nine group clients, each of which had at least 1,000 members. In 2004, Benner reported to Marquedant, who reported to Woods. Woods reported to Jim McLean.
In December 2003, Benner reported that the enrollment in the United Airlines group totaled 68,000 members. Plaintiff's Opposition, Ex. 2. A "digit split" was in place, dividing the group members between Amrhein and Redpath. Two-thirds of the United Airlines group members were the responsibility of Amrhein and one-third were the responsibility of Redpath. Id. The enrollment in the Georgia Pacific group totaled 28,000 employees. Id. This group was also divided by digit. Two-thirds of the Georgia Pacific group members were the responsibility of Redpath and one-third were the responsibility of Amrhein. Id.
In 2003 and early 2004, most of a HCSC group specialist's time would be spent responding to telephone, e-mail, and facsimile inquiries from customer groups. During the relevant time period, HCSC group specialists were responsible for working directly with customer groups, mainly through each group's benefit office. A group specialist would deal on an on-going basis with individuals representing the group employer. The responsibilities of a group specialist included fielding questions about claims processing, benefit availability, and other inquiries from group members and conducting the research necessary to answer the questions.
The inquiries received by the group specialists were varied, as was the time it would take to respond to an inquiry. The length of time a group specialist maintained an inquiry as open was monitored by the company. HCSC maintained parameters for the period of time that passed from an inquiry being received until the time it was closed. In 2003, HCSC had an internal goal of resolving all inquiries within fourteen days of receipt. When Benner supervised the GSU, she was responsible for making sure that things were completed in "as close to 14 days as possible." Plaintiff's Opposition, Exhibit Attachment 3, Deposition of Teresa Benner (Benner Dep.), p. 29.
If Benner noticed that a group specialist had inquiries within his or her control that were not closed within a timely fashion, she would address the issue with the individual, and if it were a repetitive problem, Benner would document it. In 2003, HCSC employee Misty Younkin was responsible for inventory. It was Younkin's responsibility to monitor the status of inquiries that were open for more than fourteen days. If an inquiry was older than fourteen days, Younkin would contact the group specialist to check up on it.
The quality of a group specialist's work was monitored by quality coordinators. From January 2003 until at least March 2004, Melissa Cooper and Stephanie Kelly held the only quality coordinator positions with HCSC for the Springfield Full Service Unit. As a part of the quality monitoring, the coordinators would randomly tape record telephone calls of group specialists and listen to them. In late 2002 or early 2003, Benner informed the group specialists that their phone calls would be monitored as part of the quality program. The group specialists expressed concern about the auditors listening to personal telephone calls. Benner stated that she was aware that from time to time group specialists made or received personal telephone calls and when that happened, the auditors were instructed not to listen to those calls. Amrhein Dep., p. 158-59. The quality coordinators also reviewed group specialists' written work for accuracy of information.
HCSC maintained ethical standards for its employees to follow. Stephanie Kelly testified that if, while listening to a recorded call, she believed that a group specialist had done or said something that violated HCSC's ethical code, she would report it to the individual's supervisor. Plaintiff's Opposition, Exhibit Attachment 6, Deposition of Stephanie Kelly, p. 10. HCSC's applicable discipline policy differentiated between performance and attendance issues on one hand and violations of conduct standards on the other. Plaintiff's Opposition, Ex. 23, Corrective Action Policy. The policy provided that: "[p]rogressive action is generally appropriate to address performance and attendance issues" and that "each subsequent infraction may result in increasingly severe consequences." Id., p. 3. Progressive actions include counseling, verbal warning, written warning, probation, and involuntary termination. Id. The approval of Workforce Relations was necessary prior to applying the steps out of sequence. Id. According to the policy: "[t]he consequences for violations of Conduct Standards are based on the specific standard violated and whether the violation is a first-time offense or the employee has previously violated the policy." Id., p. 9. The policy recognizes that "[s]ince violations of any standard vary by circumstance, a range of discipline levels is considered." Id. The policy set out four levels of discipline for conduct violations as follows: Level 1 -- counseling; Level 2 -- counseling with unsatisfactory performance appraisal and no salary increase; Level 3 -- counseling with unpaid leave, an unsatisfactory performance appraisal, and no salary increase (a demotion, transfer or recision of officership may also be considered); Level 4 -- termination of employment. Id., p. 10-11.
HCSC's ethical code addresses misuse of corporate assets, which Benner took to encompass misuse of the telephones. Benner noted that while she supervised the group specialists, she allowed them "to make brief, brief phone calls as necessary" regarding personal matters. Benner Dep., p. 50. After the monitoring of group specialists' recorded calls began, the quality coordinators were required to audit a certain number of calls each month. Plaintiff's Opposition, Exhibit Attachment 5, Deposition of Melissa Cooper (Cooper Dep.), p. 12. When a quality coordinator was reviewing a tape of a group specialist's telephone calls, she would fast forward through personal calls. Id., p. 13-14. Quality coordinator Cooper testified that if "there wasn't enough work to meet our quota for the month of audits because the tapes were filled up with personal phone calls" she would report the frequency of personal calls to Benner. Id., p. 14, 17-18. Cooper testified that she felt that Redpath, Moore, Rowe, and Amrhein made frequent personal calls. Id., p. 15. Benner testified that "[i]f there were complaints of, if the quality area made any type of complaints that they were making excessive calls at the point that, actually at the point that it became excessive throughout the department [she and Marquedant] started monitoring it somewhat." Benner Dep., p. 50-51. Benner estimated that the additional monitoring began in early to mid-2003. Id., p. 51. She stated that she and Marquedant would pull the quality tapes for the group specialists and if a tape revealed a significant amount of personal phone usage, they would address it. Id. According to Benner, the supervisors did not listen to every single tape every month, but rather reviewed only some of each employee's tapes. Id., p. 58.
Amrhein testified that as soon as Benner took over as her supervisor, she began receiving criticism regarding her conduct and performance at work. Amrhein Dep., p. 170. In October 2002, Amrhein went on a two-week vacation. Although Redpath was designated to cover Amrhein's workload while she was away, Amrhein testified that he did not do so. Id., p. 130-31. When Amrhein returned to work, she had to work overtime to clear up the backlog. Id., p. 131. Amrhein felt that she was being treated unfairly because she was expected to keep up with Redpath's work when he was gone. Id. Amrhein complained about Redpath's conduct to Benner, another supervisor, and everyone in her unit. Id., p. 132.
Prior to January 2003, Amrhein became concerned that she was getting a disproportionately greater amount of work to perform than Redpath. In early 2003, Benner created 2003 performance reviews for Amrhein and Redpath. Plaintiff has submitted copies of these 2003 performance reviews, which are both dated February 10, 2003. Plaintiff's Opposition, Ex. 8 & 9. Amrhein testified that she received a copy of her 2003 performance review at the end of January 2003. Amrhein Dep., p. 99-100. Amrhein's evaluation states that she "meets and at times exceeds the standard" in all competency areas. Plaintiff's Opposition, Ex. 8, p. 2. It further states that Amrhein "meets the targeted standard" with respect to contribution to the team and technical quality. Id., p. 3. An annual merit increase worksheet attached to Amrhein's evaluation reveals that her current salary was "19.29." Id., p. 5. With a 2% increase, the worksheet notes a new salary of "19.68." Id. Amrhein did not believe that her review was accurate. Amrhein Dep., p. 100. She complained to Benner and Woods about the evaluation. Id., p. 100-01.
Amrhein also formed the opinion that Redpath had received a better review than she had. Amrhein Dep., p. 82-84. Amrhein did not see Redpath's actual evaluation, but formed her opinion based on his comments and actions. Id. Redpath's 2003 performance review states that he "meets and at times exceeds the standard" in two competency areas and "meets the targeted standard" in the third. Plaintiff's Opposition, Ex. 9, p. 2. The review notes that Redpath "meets and at times exceeds the goal" in contributions to the team and "greatly exceeds the standard" with respect to technical quality. Id., p. 3. An annual merit increase worksheet attached to Redpath's evaluation reveals that his current salary was "18.29." Id., p. 4. With a 4% increase, the worksheet notes a new salary of "19.02." Id. In January 2003, while reviewing a tape of Amrhein's telephone conversations, quality coordinator Cooper came across a portion that she thought could potentially constitute a problem. Cooper referred the matter to Benner for review. Benner reviewed the conversation and forwarded it to Karen Woods. Woods concluded that Amrhein had violated HCSC's Code of Conduct. By Memorandum dated January 31, 2003, Woods informed Amrhein that she had been "overheard exchanging proprietary business information with an employee of one of our competitors." HCSC's Statement of Undisputed Material Facts with Respect to its Motion for Summary Judgment (d/e 23) (HCSC's Statement of Facts), Ex. C. E. Specifically, Woods noted that Amrhein had "mentioned information regarding our fee schedule for Reimbursement/Subrogation and our HIPAA [Health Insurance Portability and Accountability Act] readiness program." Id. As a result, Amrhein was suspended without pay for five days and placed on probation. Id. The Memorandum stated: "Any future inappropriate behavior in the workplace will result in further disciplinary action up to and including termination. At the next review period, you will receive an unsatisfactory performance review and will not be eligible for a merit increase." Id. The Memorandum was signed by Woods, McLean, and Amrhein. Id.
Amrhein testified that her suspension arose out of a telephone call she had with Gayle Bernstein, a representative of a competing company, Anthem, which like HCSC, was a licensee of Blue Cross/Blue Shield. Amrhein Dep., p.184-85, 192. The record contains a transcript of this telephone conversation. When Bernstein was ...