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Erinkitola v. Blue Cross Blue Shield Association

February 11, 2009


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiff Lemi-Ola Erinkitola has filed a § 1981 and Title VII employment discrimination and retaliation lawsuit against Defendant Blue Cross Blue Shield Association ("BCBSA"). BCBSA has responded with two motions that are now before the court. BCBSA first filed a Rule 11 sanctions motion, alleging that allegations appearing in paragraphs 27 and 28 of the complaint, Erinkitola's claim of retaliation, and her claim of constructive discharge, are frivolous. BCBSA then moved for summary judgment on all counts.


Erinkitola was hired by BCBSA in 2000 as a Senior Consultant, a Job Grade Level 13. In 2002, she was promoted to Manager of Provider Relations, a Job Grade Level 14. Erinkitola had primary responsibilities for providing tools and services to educate providers (i.e., hospitals or doctors) about BCBSA's service plans. During this time Erinkitola also had a "direct report," that is, a person who worked for her, and who assisted her in completing her tasks. Erinkitola reported to Melanie Tillmans.

Erinkitola's performance was evaluated in 2003, 2004, and half-way through 2005. Other evaluations, especially prior to 2003, may have occurred, but are not in the record. In 2003 her overall rating was 3.59 points out of a possible 5. In 2004, her rating was 3.25 points. To put these and later scores in context, BCBSA's Rating Guidelines provide that a "3.00" indicates that the employee's performance "generally meets and sometimes exceeds standards / expectations," that the employee's performance is "steady and reliable," that the employee is "fully competent in this particular Key Responsibility, Goal Project or Performance Criteria category," and that the employee achieves "between 90%--110%*fn2 of the expectation for this [area]." The court further notes that the section titled "Manager's Overall Comments" in the 2004 review is unequivocally positive, noting that Erinkitola "very effectively manages her area and her own work." See App'x to Def.'s Local R. 56.1(a)(3) Stmt. of Material Facts (hereinafter "Def. App'x") Ex. 54 at BCBSA 0803.

In 2005, BCBSA went through a reorganization. Erinkitola was assigned to a new Customer Relations team, where she was supervised by Diana Duffy, and Duffy's supervisor was Kari Hedges. Erinkitola was transferred to the new team on about June 1, 2005 and prior to the transfer Tillmans performed an interim evaluation, giving Erinkitola a score of 3.05. Erinkitola did not sign this evaluation.

After Erinkitola joined her new team in June 2005, her direct report was removed, though two other employees who were also now reporting to Duffy-Kevin Einbinder and Thomas Conway-retained their direct reports. In July 2005, Duffy left for maternity leave, and Duffy gave Erinkitola (and others) a list of projects to be completed during her absence. From July 2005 to October 2005, Erinkitola reported to Hedges. During this time, both Hedges and Duffy became concerned over the lack of progress Erinkitola was making on her projects.

BCBSA utilizes what it refers to as a Performance Improvement Plan ("PIP") to address certain employee performance issues. The PIP begins with a "Documented Warning," which involves a written statement to the employee outlining areas of concern, and goals and tasks to improve the problem. A Documented Warning period can last 30 or 60 days. A Documented Warning is required if an employee has a rating of less than 2.0, and can be recommended if an employee has a rating of between 2.0 and 2.6. At the end of the Documented Warning period, an employee can be terminated, can be given a Final Warning if problems persist, or can be taken off the PIP if the PIP was deemed successful. An employee may be offered the chance to resign when a Final Warning is issued, though BCBSA's policy does not require this. A Final Warning generally lasts for 30 days, and results in either removal from the PIP, or termination. Both Documented Warnings and Final Warnings are supposed to involve not only a plan for improvement, but also feedback from, and meetings with, the employee's supervisor. Any termination must involve consultation with BCBSA's Human Resources department.

When Duffy returned in October, she, in consultation with Human Resources, placed Erinkitola on an informal PIP,*fn3 starting October 12, 2005, due at least in part to concerns over Erinkitola's performance on the projects she had been assigned. After the informal PIP, Erinkitola started a formal PIP on November 16, which was to run 60 days, until January 14, 2006.

On December 1, 2005, Erinkitola filed a charge of racial discrimination with the Equal Employment Opportunity Commission ("EEOC"). On December 22, 2005, Erinkitola worked her last day at BCBSA. After December 22, 2005, Erinkitola took days off pursuant to paid time off ("PTO") or a medical leave, due to a stress-related illness. On January 11, 2006-the date Erinkitola was to return from her medical leave-Erinkitola submitted a letter of resignation.


I. BCBSA's Motion for Summary Judgment on Race Discrimination

Summary judgment is warranted when "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); Brengettcy v. Horton, 423 F.3d 674, 680 (7th Cir. 2005). However, all facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008).

Plaintiffs in Title VII and § 1981 actions*fn4 must show discrimination due to race by utilizing the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The plaintiff must first establish a prima facie case of discrimination by demonstrating that: (1) she belongs to a protected class, (2) she performed her job according to her employer's legitimate expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees outside the protected class were treated more favorably by the defendant. See, e.g., Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001). When the plaintiff satisfies this initial burden, it is then upon the defendant to proffer a ...

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