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Myers v. BP North America

March 11, 2010


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Alison Myers has worked for BP America, Inc. and BP Products North America, Inc. (collectively, BP) since 1996. She began her work at BP in the United Kingdom, and in 2000, she was transferred to the BP offices in Warrenville, Illinois, where she worked as a crude oil trader for the West African Crude Oil Bench (WAF Bench). She was promoted to "book leader" of the WAF Bench in 2005. Myers was compensated for her work with a base salary and a bonus linked to the performance of the WAF book and her individual contributions. In early 2007, Myers was told she would be receiving a lower bonus for her 2006 work than she believed she had earned, and she complained to upper level BP management about her bonus calculation. In March 2007, Myers received a negative performance review, and in July 2007 she was told that her international assignment in the U.S. was being terminated, in part because of her reaction to her 2006 bonus. She was given three months to repatriate to the United Kingdom, and when she did not, she was terminated.

Myers contends that BP discriminated against her in several ways, including the calculation of her 2006 bonus, because she is a woman. She further contends that BP gave her a negative review and subsequently fired her because she complained about the unfair calculation of her 2006 bonus. She sues BP for sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a) & 2000e-3(a); violation of the Equal Pay Act, 29 U.S.C. § 206(d); breach of contract; and fraudulent misrepresentation.

Factual Background

On a motion for summary judgment, the Court draws "all reasonable inferences from undisputed facts in favor of the nonmoving party and [views] the disputed evidence in the light most favorable to the nonmoving party." Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2009). The Court takes the following facts from the Myers' complaint and from the parties' statements of facts as to which there is no material dispute.

Myers began working for BP as an operator in its London office on November 11, 1996. An operator schedules shipments of the petroleum products BP buys and sells. On January 8, 1998, Myers was promoted to the role of Western Crude Oil Trader. Traders are agents of BP who buy and sell petroleum products. On July 8, 1999, Myers was promoted to Senior Crude Oil Trader.

Traders within BP are organized into regional and product-based groups, known as "benches." The trading positions and other information related to each trading bench are known as a "book." In September 2000, pursuant to an "international assignment contract," Myers accepted an assignment that transferred her to BP's Warrenville, Illinois office, where she worked as a trader for the West African Crude Oil (WAF) bench. Myers became the book leader of the WAF bench in 2005. While acting as book leader, she continued to conduct trades.

Myers' compensation was made up of a base salary and a bonus. The salary was paid over the course of the year. The bonus was calculated at the end of each calendar year, based on a target established in a yearly performance contract. A portion of the bonus was based on the book's financial performance, and a portion was based on "soft factors," such as "individual financial contribution to the book, innovation, delivery, teamwork, contribution to strategy, growth, coaching, and relationships." Appx. to Defs.' L.R. 56.1 Stat., Ex. 5.

In 2005, BP instituted a bonus retention program that applied to employees whose target bonus is $200,000 or greater. Under the bonus retention program, seventy-five percent of a qualifying employee's bonus is paid to the employee no later than three months following the end of the year for which the bonus was awarded. The remaining twenty-five percent of the bonus is paid out in three equal payments over the following three years, with an extra payment in the final year (twenty-five percent of the total retained amount). To be eligible to receive retained payments, the employee must still be employed as of the date when the particular retained payment is disbursed.

In Myers' 2006 performance contract, the financial target for the WAF book was set at $70 million. Id. Myers' target bonus was set at $3.5 million. Id. Roughly two-thirds of Myers' target bonus, or $2.33 million, was calculated based on the WAF book's attainment of its financial target. The remaining one third of her target bonus, or $1.16 million, was dependent on Myers' individual performance.

The WAF book made $110 million in 2006, substantially exceeding its financial target. One of the grades of oil that is part of the WAF book (Kissanje) is not a recognized oil grade in the market. To determine the appropriate value of oil of that grade when it was transferred among BP entities, BP historically used quoted values of a different grade of oil (Hungo) as an internal benchmark in the absence of a market price for Kissanje. In 2006, market conditions for these grades changed, and BP felt that the internal benchmark that it had been using was no longer appropriate and that internal trades of Kissanje were being overvalued. Traders, including Myers, provided the Head of Trading for Crude Oil, Tom Ross, with information about the differences between the two grades. Citing these market changes, Myers' trading manager, Earl Burns, recommended that the overall performance of the WAF book be adjusted downward by approximately $15 million, to $96 million, to reflect this market change.

In March 2007, Burns met with Myers to discuss her 2006 performance bonus. Myers received a total bonus of $4.8 million -- the full $3.5 million that was established as the target in her performance contract, plus an additional $1.3 million based on the WAF book's above-target performance of $26 million (as calculated after making the Kissanje-Hungo adjustment discussed above).

Myers was displeased with this calculation of her bonus. Because her original bonus target was $3.5 million, or five percent of the $70 million WAF book financial target, she believed she was entitled a "straight-line" bonus worth five percent of the WAF book's performance as originally calculated, or $5.5 million. She felt that it was unfair of BP to make a "retroactive" change to the WAF book's financial performance when it calculated her bonus. She further argued that Burns had made a mistake in his calculations when he adjusted the WAF's performance.

After her meeting with Burns, Myers sent an e-mail to Ross and Andy Milnes, the Head of Supply and Trading, challenging her 2006 bonus calculation. In the e-mail, Myers stated that she was very unhappy with the decision to adjust WAF book's performance for 2006 downward when calculating her bonus. She also told Ross and Milnes that she thought they should know about the decision, which she called "a highly controversial step in a direction that I feel certain is both morally questionable and patently unfair." She closed the e-mail with a request to speak further with Ross and Milnes about her 2006 bonus.

Both Ross and Milnes met with Myers to discuss the complaints she had raised in the e-mail, but they made no change to her 2006 bonus calculation. During the meeting with Ross and Milnes, Myers expressed her belief that she was being "targeted" by the use of the reduced WAF financial performance in calculating the amount of her bonus. She told Ross and Milnes that she believed she was the only one whose bonus was adjusted this way. She argued that bonuses for all traders on the WAF book should have been affected by the recalculation to the extent that their bonuses were linked to book performance. She did not say or suggest that she thought her gender was the reason for the adjustment. Myers also discussed with several other BP employees her displeasure over her bonus, including at least one conversation in which she told a colleague that management "stole" her money. Burns Dep. 257.

Burns recommended that BP's human resources department consider issuing a disciplinary warning to Myers for "slandering" management in her e-mail and to other employees, but BP ultimately decided not to discipline her. Id. 241. Burns felt that Myers' behavior after the 2006 e-mail became difficult, and he testified that he heard complaints about Myers from at least three other BP employees, both on and off the WAF bench. Id. 253-60.

Burns expressed his frustration with Myers' post-e-mail behavior to other BP trading managers and to Ross. Ross also heard from at least one other employee who found Myers difficult to work with and said that he did not enjoy coming to work because of Myers' behavior on the bench. In response to Burns' complaints about Myers' behavior, Ross told Burns to draft a memo proposing a solution. On April 3, 2007, Burns circulated a confidential memo to all crude oil trading managers in which he recommended that Myers be removed from the WAF book leader position because of her behavior.

In March 2007, BP and Myers discussed Myers' performance contract for 2007. Myers signed the contract on March 30, 2007, after BP had told her that she would be denied access to trading materials and the BP system if she did not sign by that date. The 2007 performance contract included a financial target for the WAF book and bonus targets that were linked to book performance and individual performance. The 2007 performance contract also included language stating that "this performance contract does not alter or limit in any way the fundamental nature of the at-will employment relationship with BP." Appx. to Defs.' L.R. 56.1 Stat., Ex. 4.

In April 2007, Burns gave Myers a first quarter performance review, which he drafted with input from Ross and the BP human resources department. The review called Myers' reaction to her 2006 bonus calculation "unprofessional" and "unacceptable." It also criticized her for sharing her displeasure over her 2006 bonus with her colleagues. The review stated that Myers needed to improve her relationships with other trading benches and support groups. Burns discussed the review with Myers and incorporated her comments into a final draft of the review. During that discussion, Myers again communicated her belief that she had been singled out for harsher treatment with respect to her 2006 bonus calculation, but she did not claim that this had been based on her gender. Myers Dep. 137, 142-43.

Burns says that he continued to receive complaints about Myers' behavior, a claim that Myers disputes. In July 2007, Burns discussed with Jennifer Pearce, a BP human resources advisor, how to address his concerns about Myers. On July 10, 2007, Burns, Ross, and Pearce met with Myers and informed her that BP was ending her international assignment. Myers Dep. 180; Burns Dep. 123-24. They told Myers that they were placing her on "garden leave," a three-month period during which she would not be required or permitted to work but would still be paid by BP. They also told Myers that to continue her employment with BP, she would have to repatriate to the United Kingdom within three months. They proceeded to escort Myers from the building. Id.

After the July 10, 2007 meeting, the human resources department sent Myers a letter explaining what she had to do to continue her employment, including repatriation to the United Kingdom within three months. Milnes notified BP in London that Myers was scheduled to repatriate.

Myers did not repatriate to the United Kingdom, and she did not seek another position within BP because, in her view, there was no position comparable to the WAF book leader position that was open at the time. Myers Dep. 215. On October 18, 2007, BP terminated Myers' employment, citing her failure to repatriate to London by October 10, 2007 as it contends was required by the terms of her international assignment. Myers Dep. 223. BP did not pay Myers any bonus for her work in 2007, nor did it pay her the amounts retained from her 2005 and 2006 bonuses under the bonus retention program other than amounts that it had already disbursed before the date of her termination.


Myers asserts several claims against BP. In Count 1, she alleges that BP discriminated against her on the basis of sex in violation of Title VII. In Count 2, she alleges that BP retaliated against her for complaining about the calculation of her 2006 bonus in violation of Title VII. In Count 3, she alleges that BP paid male book leaders higher salaries and higher bonuses than female book leaders, in violation of the Equal Pay Act, 29 U.S.C. § 206(d). In Count 4, Myers alleges that she had a valid fixed-term employment contract for 2007 that entitled her to work for BP until December 31, 2007 and that BP breached the contract when it put her on garden leave on July 10, 2007 and when it terminated her on October 18, 2007. In Count 5, she alleges that BP breached her 2006 performance contract when it calculated her 2006 bonus using the downward-adjusted financial performance figure for the WAF book. In Counts 5 and 6, Myers alleges that BP breached her 2005 and 2006 performance contracts when it failed to pay her retained bonus amounts after she was terminated in October 2007. In Count 7, she alleges that BP fraudulently misrepresented its intention to employ her through December 31, 2007 when it presented her with her 2007 performance contract, even though it knew when she signed the contract that it intended to terminate her before the term was up.

BP has moved for summary judgment on all of Myers' claims. For the reasons stated below, the Court denies summary judgment on Count 3 (the Equal Pay Act claim) and grants summary judgment for BP on all other counts.

A. Gender Discrimination

Title VII prohibits employers from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of gender. 42 U.S.C. § 2000e-2(a)(1). Myers cites several examples of adverse employment actions that she contends constitute illegal gender discrimination by BP. These are the reduction of her 2006 bonus; the negative performance review in the first quarter of 2007; removal from her position as WAF book leader and the subsequent demand that she repatriate to the United Kingdom; non-payment of bonus money from her 2007 performance contract and money retained under the bonus retention program from her 2005 and 2006 performance contracts; damage to her reputation within BP and the larger petroleum trading industry; and failure to consider her for the Cushing book position when it became available.

I. Direct Method

To prove discrimination, Myers may proceed under either the direct or indirect method.*fn1 The direct method of proof permits a plaintiff to show discrimination by offering one of two types of evidence. Rogers v. City of Chicago, 320 F.3d 748, 754 (7th Cir. 2003). The first is direct evidence, which allows a reasonable juror to conclude, without resorting to inference, that an employer acted for an illegal reason. See Velez v. City of Chicago, 442 F.3d 1043, 1049 (7th Cir. 2006). This type of evidence "is essentially an 'outright admission' that a challenged action was undertaken for one of the forbidden reasons covered in Title VII." Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005). Myers does not offer any of this type of direct evidence.

The second type of evidence that may be used under the direct proof method is circumstantial evidence, which "allows a jury to infer intentional discrimination by the decisionmaker." Rogers, 320 F.3d at 754. The Seventh Circuit has said that circumstantial evidence of employment discrimination usually falls into one of three categories:

[1] suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn [;] . . . [2] evidence, whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic (pregnancy, sex, race, or whatever) on which an employer is forbidden to base a difference in treatment received systematically better treatment[; and] . . . [3] evidence that the plaintiff was qualified for the job in question but passed over in favor of (or replaced by) a person ...

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