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Grey v. Kirkland & Ellis

September 2, 2010

FAYE R. GREY, PLAINTIFF,
v.
KIRKLAND & ELLIS, LLP, AN ILLINOIS LIMITED LIABILITY PARTNERSHIP, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Faye Grey applied twice for a job with the Chicago law firm Kirkland & Ellis LLP ("Kirkland"), but was turned down. In this lawsuit, Grey, who is African-American, asserts that the firm failed to hire her on account of her race, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C § 2000e et eq., and 42 U.S.C. § 1981 ("Section 1981").*fn1 The position Grey sought involved assisting Kirkland's transition to new word-processing software. Kirkland asserts that Grey's inability to pass a screening exam that tested her familiarity with the software demonstrates that she was not qualified for the position and provides a non-discriminatory basis for Kirkland's decision not to hire her. The court agrees and grants Kirkland's motion for summary judgment.

BACKGROUND

Grey is a legal secretary with more than 20 years of professional experience. (Pl.'s Stat. of Add'l Facts at ¶ 8.) In June 2004 and again in May 2005, Grey applied to become a "Floor Practice Support Specialist" ("FPSS") at Kirkland. Kirkland created the FPSS position in 2004 to assist with the firm's transition of its computer word-processing software from Word Perfect to Microsoft Word. FPSS job responsibilities included providing expert technical assistance to Kirkland attorneys and staff, converting documents, repairing corrupt documents, and troubleshooting potential software problems. (Pl.'s 56.1 Resp. at ¶ 11.) Grey's application for the job was rejected both times; the second rejection, Grey asserts, was the product of race discrimination. The court recounts the facts in the light most favorable to Plaintiff, as non-movant.

Grey first applied for the FPSS position in June 2004, by e-mailing her resume to Kirkland's secretarial recruiter Deb Moran, who is Caucasian. (Id. at ¶ ¶ 5, 13.) Tammi Bowden, a longtime friend of Grey's who already worked at Kirkland as a legal secretary, also applied for the position at or about the same time. (Id. at ¶ ¶ 6, 14, 15.) Bowden, who is also African-American, was ultimately hired in lieu of Grey. (Id. at ¶ 15.) Grey acknowledges that Bowden was a "highly skilled internal candidate" who was at least as qualified for the position as Grey. (Id. at ¶ 15-16.) Grey therefore does not assert any claims based on Kirkland's initial decision to hire Bowden, rather than herself, for the 2004 opening. (Pl.'s Br. at 3, FN 2.)

After being selected to fill the opening, Bowden agreed to notify Grey and to serve as her reference whenever additional FPSS positions opened up at Kirkland. (Id. at ¶ 15.) In 2005, Kirkland decided to expand the FPSS program by filling additional six positions and Grey applied again. True to her word, Bowden forwarded Grey's resume to Moran and acted as one of Grey's references. (Id. at ¶ 21.) Moran conducted an initial telephone interview with Grey on May 19, 2005, during which Grey stated that she had equal experience working with corporate and litigation documents but that she preferred corporate work. (Id. at ¶ 24.) At the close of the phone call, Moran invited Grey to visit the firm's offices on May 24, 2005 so Grey could take a series of screening tests. (Id. at ¶ 25.) Those tests, which Kirkland administered to all applicants to test their proficiency with word-processing software, included a typing examination, a proofreading examination, and a Microsoft Word proficiency examination. (Id. at ¶ ¶ 12, 18; Pl.'s Stat. of Add'l Facts at ¶ 2, 4.) Those applicants who passed the skills tests advanced to a second interview stage. (Pl.'s 56.1 Resp. at ¶ 19.)

There is no dispute that Grey easily exceeded Kirkland's minimum score requirements for the typing and proofreading exams. Grey failed the third exam, however. Referred to as the "Word test," that exam tested the applicant's familiarity with Microsoft Word's editing and formatting functions. Grey does not dispute that she was given a failing grade for the Word test. (Pl.'s Br. at 1.) She asserts, however, that the circumstances of the test's administration were sufficiently unfair and suspicious as to give rise to an inference of discrimination.

At the time Grey took the Word test, in May 2005, there were two versions of the exam--one geared toward the formatting of litigation documents and one geared toward the formatting of corporate transactional documents. (Pl.'s 56.1 Resp. at ¶ 26.) Both versions of the test appear to have been developed within the Kirkland firm. Kirkland's Document Services Coordinator Leigh Quinlisk, who is Caucasian, testified that she personally created the litigation version of the test and adapted the corporate version from a test in use at Kirkland's New York office. (Quinlisk Dep. at 77-87.) Quinlisk testified that she chose to use these in-house exams because the available commercial exams did not adequately test certain specific Word functions that the law firm regularly used. (Id.) Both versions of the Word test were scored on an 80-point scale that allotted point values for the successful completion of various formatting functions. Unlike the typing and proofreading tests, which were machine-scored, the Word exam was scored by hand. (Pl.'s Stat. of Add'l Facts at ¶¶ 1-3.) Two different versions of the Word test required the applicants to perform slightly different word-processing functions, but a score of at least 70 points was required to pass either version. (Id. ¶¶ 6-7; Def.'s 56.1 Stat. at ¶ 42.))

All applicants were given a choice as to which version of the Word test they preferred to take, and applicants were advised to choose the area in which their skills were stronger. (Pl.'s 56.1 Resp. at ¶ 29.) Grey testified that she voluntarily chose to take the corporate version of the Word test because she was "very familiar with formatting corporate documents." (Grey Dep. at 44-45.) Applicants taking the corporate version of the exam were given two hours in which to format financial tables, tables of contents, and signature blocks; utilize Word-specific styles; and perform various general formatting functions for a draft securities document. (Pl.'s 56.1 Resp. at ¶ 27; Pl.'s Stat. of Add'l Facts at ¶ 10.) Moran initially administered Grey's test and then sent the test materials to Quinlisk. At Quinlisk's request, Kirkland's Technical Document Specialist Ann Sullivan graded Grey's test. Sullivan gave Grey a failing grade of 61. (Pl.'s Resp. at ¶ 42.) Upon receiving Sullivan's score report, Quinlisk testified, she personally re-graded Grey's test and arrived at the same score of 61. According to Quinlisk, it was common for "a second set of eyes" to review applicants' tests in order to insure against grading errors. (Pl.'s 56.1 Resp. at 43; Quinlisk Dep. at 215, 260-61.) Grey received point deductions, Quinlisk testified, for failing to satisfactorily complete a number of tasks related to fonts, table headings, "dot leaders" in tables, alignment of numbers and dollar signs, text search and replacement, and the running of a "Delta View" document comparison. (Id. at 41; Quinlisk Dep. at 262-70.)*fn2 At the time that Quinlisk graded Grey's test, Quinlisk testified, she did not know what Grey's race was. (Quinlisk Dep. at 502.) Nor was Quinlisk aware of any facts to suggest that Sullivan, who also graded the exams of several other applicants, had any knowledge of Grey's race. (Id.)

Grey nevertheless believes that the exam was specifically designed for the purpose of disqualifying her on account of her race. According to Grey, prior to administering the test, Moran told Grey that "[Kirkland] took some of the hardest things we could find and put them together just for you. You're the first person to take this test." (Grey Aff. ¶ 14.) Though Moran does not remember exactly the conversation that she had with Grey, she unequivocally denied making any such statement: "[A]s an HR professional[,] I would not say we've created this test especially for you. I would not say those words. What I very well could have said was something along the lines of this is a test that we've created specifically for this position. But I would not have said this is a test we've created specifically for you, no, absolutely not." (Moran Dep. 193-95.) In any event, Moran testified, she did not actually know precisely why the Word test was created because she played no role in its creation. (Id. at 195.) Quinlisk stated that she opted to use the corporate exam because it tested specific skills that the firm deemed necessary for the corporate FPSS position. (Quinlisk Dep. at 77-87.) At her deposition, Grey admitted that she knew the same test had been administered to "several" other applicants who elected to take the corporate version of the Word exam. (Grey Dep. 68-69; Pl.'s 56.1 Resp. at ¶ 66.) One of those applicants was Grey's friend Tammi Bowden, who passed the same test in 2004 and had positive things to say about the Word test. After taking the exam, Bowden told Quinlisk that she believed the test to be "one of the best, if not the best [skills test] I've taken in my too-many-years-to-mention legal career." (Pl.'s Resp. at ¶ 63; Quinlisk Dep. at 539-40.)

Another applicant who took the corporate version of the Word test was Angelia Starks, an African-American woman who was ultimately hired by Kirkland to fill the corporate FPSS position that Grey sought. (Pl.'s Stat. of Add'l Facts at ¶ 38; Quinlisk Dep. at 330-35.) Starks took the test in August 2005 and scored a 65, four points better than Grey but still five points short of a passing grade of 70. (Pl.'s Resp. at ¶ 58.) Quinlisk testified that Kirkland decided to hire Starks in spite of her low score because, by August 2005, the firm had become concerned that it was not attracting enough candidates who were capable of obtaining a score of 70 on the corporate version of the exam. (Quinlisk Dep. at 508.) The firm also filled five FPSS positions in the firm's litigation practice between August 2005 and October 2005. (Pl.'s Resp. at ¶ 53.) Of the successful litigation applicants, one was African-American and one was Hispanic. (Id.) Some time later, the firm hired an additional FPSS candidate, Lisa Brown, who is African-American. (Id.)

In August 2005, Kirkland hired Laura Phillips, who is Caucasian, to fill an FPSS position in the firm's Intellectual Property practice. (Pl.'s Stat. of Add'l Facts at ¶ 32.) Grey asserts that she was more qualified to be an FPSS than Phillips. In support, she points to score sheets bearing Phillips's name, which show that Phillips did not score as well as Grey on the proofreading or typing exams. (Id. at ¶ 33-34.) The score report for Phillips's Word test-the same corporate version, Grey claims, that Grey took-shows that Phillips initially earned a score of 67. (Id. at ¶ 35-36.) The number 67 is typewritten at the bottom of the score report, but a handwritten line is drawn through that number and the number 70 has been hand-printed below it. (Id. at 36.) It is not clear why Phillips's score may have been changed, as neither Phillips nor whoever scored her exam were deposed in this case. Nor does it appear that Phillips's score sheets were ever properly authenticated by affidavit or testimony.

After taking the exam, Grey testified, she did not hear anything from Kirkland for five or six weeks. (Grey Dep. at 57-58.)*fn3 Moran ultimately contacted Grey in July 2005 to inform her that she had failed the Word exam and would not be hired. In an e-mail response sent on July 7, 2005, Grey asked whether she was eligible to take the litigation version of the Word proficiency test. Moran immediately forwarded this request to Quinlisk and Amos, seeking guidance on how to respond. (Moran Dep. 235-38). Grey has produced the record of an e-mail exchange that took place between Quinlisk and Amos following the forwarding of Grey's request. (Ex. 23 to Quinlisk Dep.) In the exchange, Quinlisk writes: "This is amazing!!! It sounds like Tammi [Bowden] typed it herself! [Grey] did not pass the test. That does not mean she gets to take the other test in the hopes of passing that one. It was her choice to take the corporate test. What a joke." (Id.; Quinlisk Dep. at 302-09.) Grey believes that Quinlisk's reference to Bowden reflects an awareness that Bowden, whose race was known to Quinlisk, had referred Grey. There is no evidence that any FPSS applicants, whatever their race, were ever allowed to retake an exam or to take a different version of an exam they initially failed. (Pl.'s 56.1 Resp. at ¶ ¶ 28, 48, 71.) Moran ultimately informed Grey that she would not be eligible to retake the exam, but Moran indicated that she intended to keep Grey's resume "on file."

Grey asserts that Kirkland's refusal to allow her to take the litigation version of the Word test is unfair because the corporate version of the test was considerably more difficult than the litigation version. Kirkland acknowledges that it revised the Word test in September 2005, four months after Grey took the exam. An internal memorandum, signed by Kirkland's Human Resources Manager Mary McMahon and dated August 30, 2005, states, in part: "The candidate pool/talent is not great, and we are not seeing strong resumes or resumes that fit the position specifications . . . To date, only 2 candidates out of 11 have passed the [Word proficiency] test. The Litigation test appears easier than Corporate test." (Ex. 14 to Moran's Dep., at 1-2.) Specifically, McMahon observed, applicants who took the corporate test were asked to perform more ...


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