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Bowden v. Kirkland & Ellis LLP

September 2, 2010


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


Plaintiffs Tammi Bowden and Nancy Gagen are both former employees of Chicago-area law firm Kirkland & Ellis LLP ("Kirkland"). Bowden, who is African-American, claims that the firm subjected her to a hostile work environment and discriminated against her on the basis 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"). Specifically, Bowden asserts that her two direct supervisors gave her less favorable work assignments and subjected her to greater scrutiny than they applied to Bowden's Caucasian colleagues. When Bowden complained internally and filed a charge against the firm with the Equal Employment Opportunity Commission ("EEOC"), she asserts, her supervisors and co-workers retaliated by harassing her. Gagen, who is Caucasian, is Bowden's friend and co-worker. She advised and encouraged Bowden to file an EEOC charge. In her complaint, Gagen asserts that Kirkland unlawfully terminated her in retaliation for providing assistance to Bowden. Kirkland moves for summary judgment against both Plaintiffs.

As explained below, the court concludes that the specific acts of which Plaintiff Bowden complains do not support her race discrimination claim because they do not constitute materially adverse employment actions; they do not support a claim of retaliation because they would not have discouraged a reasonable person from filing a charge, and, notably, did not discourage Bowden herself. Plaintiff Gagen has failed to demonstrate a causal relationship between her activities and any adverse employment action taken against her. The court concludes that neither Plaintiff has adequately established the necessary elements of a claim for discrimination. Kirkland's motions for summary judgment are therefore granted as to both Bowden and Gagen.*fn1


Plaintiffs Bowden and Gagen assert their claims against Kirkland in separate cases, which are both before the court at this time. Because Plaintiffs' distinct employment claims rely on some overlapping facts, however, the court addresses them in a single opinion. In doing so, the court notes that Plaintiff Bowden, who appears pro se, has failed to respond to Defendant's motion for summary judgment or to its statement of undisputed material facts. Pursuant to Local Rule 56.1, a litigant seeking to oppose a motion for summary judgment must file a response to the movant's statement of facts and set forth any additional facts that require the denial of summary judgment. LR 56.1(b); Chichon v. Exelon Generation Co. LLC, 401 F.3d 803, 809 (7th Cir. 2005). Because Bowden has failed to abide by this rule, the facts set forth in Defendant's 56.1 Statement are deemed admitted by Bowden. The court relies on those facts and on its independent review of the record in analyzing Bowden's claims. Plaintiff Gagen has fully complied with the local rules. Bowden's factual admissions, therefore, do not prejudice or impact the court's analysis of Gagen's separate claim. The court recounts all of the facts in the light most favorable to Plaintiffs, as the non-movants.

I. Bowden's Employment History*fn2

Plaintiff Bowden began working as a legal secretary for Kirkland in December 1996. (Def. 56.1 Stat. at ¶ 2.) As a legal secretary, Bowden's work was supervised by various Kirkland attorneys and by Donna Amos, Kirkland's Secretarial Services Manager. (Id. at ¶ 9; Bowden Dep. 26-29.) In 2004, the firm created a new position called a Floor Practice Support Specialist ("FPSS") to provide technical assistance to Kirkland's attorneys and staff during the firm's transition from Word Perfect to Microsoft Word computer software. (Def. 56.1 Stat. at ¶ 10.) Bowden applied for the position, passed the required skills tests, and was selected over another internal applicant to "pilot" the FPSS program. (Id. at ¶ 11; Bowden Dep. at 30-32.) In the FPSS position, as Bowden understood it, she was to report directly to Amos rather than to any specific attorney. (Bowden Dep. at 32-34.) Bowden began working as an FPSS and reporting exclusively to Amos in September 2004. (Def. 56.1 Stat. at ¶ 12.) In 2005, when Kirkland decided to extend the FPSS program and make it permanent, Amos altered the chain of command so that Bowden reported to Leigh Quinlisk, Kirkland's Document Services Coordinator. (Id.) Amos remained Quinlisk's direct manager. Though Bowden admitted that she initially sought the FPSS job of her own accord, she now believes her selection for the position was "the beginning of a plan [by Amos and Quinlisk] to probably get me fired ultimately at Kirkland." (Id. at 111.) Bowden bases her belief, in part, on Amos's decision to place Quinlisk in a supervisory role over Bowden. "I wasn't Donna [Amos] 's favorite," Bowden testified. "Leigh [Quinlisk] was the hatchet woman for Donna." (Id.)

Both Quinlisk and Amos are Caucasian. Bowden testified that she suspects Amos has a "race problem" because Amos's sister-in-law once told Bowden that Amos's family harbored racial prejudices. (Bowden Dep. at 101-05.)*fn3 According to Bowden, the sister-in-law stated that she had overheard Amos's brother use racial epithets. (Id. at 104.) Bowden admitted that she has never heard that Donna Amos herself made any racist comments, and speculates that Amos shares her family members' views but "learned that it wasn't politically correct [to make overtly racist remarks]." (Id. at 106.) Bowden also believes that Amos and Quinlisk used Bowden as a pawn to ensure the success of the FPSS program: "I believe they had a plan for me from beginning to end," Bowden testified. "They couldn't avoid putting me in the pilot. Hands down I was the choice. I had the familiarity with the lawyers . . . . I had the relationship with the lawyers, the camaraderie . . . They had confidence in my work . . . [Amos and Quinlisk] could use me, and [believed I would] make [the FPSS program] succeed, and I did." (Bowden Dep. at 117.)

A. Bowden Accuses Quinlisk of Discrimination

The central dispute culminating in Bowden's discrimination claim arose in 2005, when Amos assigned Quinlisk the task of coordinating the preparation of a "Best Practices Guide" (the "Guide") for the Document Services Department. The Guide was intended to contain sample documents from each of the firm's practice areas. Legal secretaries from each area were asked to submit sample documents, which the Document Services staff then reviewed for proper formatting and style and selected for use in the Guide. (Def. 56.1 Stat. at ¶ 13.) Quinlisk initially chose Christine Rampich, a Caucasian FPSS with less experience than Bowden, to assist in compiling the Guide. (Id. at ¶ 14; Quinlisk Dep. at. 471.) Quinlisk testified that the reason she asked Rampich to assist with the project was that Rampich worked over the weekends, when the pace of regular work was slow and there was more time to devote exclusively to the Guide. (Id. at 460-61.) Bowden suspects, however, that Rampich was given the favorable assignment because of her race. "[Rampich] was in on the assignment early on," Bowden testified. "I would have liked to have participated in it. I had been at the firm much longer than anyone in the department. . . . I was not involved in it until it had reached the final stages of the work and it was the mop-the-floors-and-clean-up-after-the-party work." (Bowden Dep. at 171.) In any event, there is no evidence that Rampich or any other employee who worked on the Guide received additional compensation or promotional opportunities as a result of their work. (Def. 56.1 Stat. at ¶ 17; Bowden Dep. at 184.)

In June 2004, after a substantial portion of work on the Guide was already done, Quinlisk sent an e-mail to Bowden and the other members of the department to solicit assistance in completing the Guide. (Quinlisk Dep. at 464.) Bowden agreed to select and format a few documents for the Guide's litigation section. (Bowden Dep. at 136.) On August 15, 2005, Quinlisk sent Bowden an e-mail, updating Bowden on the status of the project and asking Bowden to format one remaining document. (Bowden Dep. at 141; Ex. 23 to Bowden's Dep.) Quinlisk's e-mail also contains the following paragraph, as an aside, near the end of the message: "Just so you know, the brief you selected with the TOA [table of authorities] was horrible. We found out that the version you had was not the one actually filed, but even the one that was filed was riddled with errors. They have been fixed and the document is now in good shape." (Id.) Bowden responded a few minutes later, saying: "Leigh, if you want to look at my 7/27/05 e-mail to you, you will see that the only brief I indicated was completed was the one including the points and authorities. The others either I had not found exemplars for or had found them but indicated they needed to be cleaned up . . . I selected the brief with the 'TOA' because it was exemplar; that is, [it] was a brief that contained a table of authorities." (Id.) Quinlisk wrote back to Bowden later the same day, stating: "I fully understand what your e[-]mail indicated. I was just letting you know that it was in horrible shape.

I was under the impression that you found documents that were good examples and just needed some formatting." (Id.) Bowden again wrote back to Quinlisk and attempted to explain why, in her view, Quinlisk had misunderstood her earlier e-mail. Quinlisk appears to have accepted Bowden's explanation: "Not a problem," Quinlisk wrote in reply. "I see what you are saying about the Appellate Brief for Federal court . . . most of the documents were in pretty good shape, just needed some minor fixes. Not a big deal. . . ." (Id.)

Notwithstanding Quinlisk's assurances that the issue was "not a big deal," Bowden continued to express indignation over the next few days at what she perceived as unfair criticism of her work. On August 25, 2005, Bowden wrote another e-mail to Quinlisk, stating:

Below is my 7/27/05 e-mail to you . . . which I had occasion to review today . . . Note bene, with respect to all itemized exemplars . . . that I stated: "all [were] badly in need of 'best practices' reformatting, by my cursory review." (Emphasis added) Therefore, your recent criticism of my choice of those exemplars because their formatting was "horrible" was unwarranted and unfair to say the least. [*fn4 ] (Bowden Dep. 141-44, Ex. 24 to Bowden Dep.) Quinlisk responded by e-mail, writing, in part: "The reality is that some of the documents that you chose for the samples were in horrible condition and I conveyed that to you. It was not a criticism, it was an update to let you know where the documents stood. I'd be happy to discuss further upon my return." (Id.) At the time, Quinlisk was away from the office on vacation. (Def. 56.1 Stat. at ¶ 21.)

Bowden refused to let the matter drop. On September 3, 2005, Bowden sent another e-mail to Quinlisk, stating: "Leigh, we're apparently going in circles because the documented facts are being misapprehended, overlooked, or simply ignored . . . I'll rest with the record." (Ex. 25 to Bowden's Dep.) On September 4, 2005, Quinlisk attempted to defuse the matter, explaining, "I was not criticizing your work, I was giving you a status . . . I do not understand why this is an issue. I know that if I selected some documents and they did not turn out to be great documents, I would want to know. I would like to talk to you about this when I get back from vacation on the 12th." (Ex. 26 to Bowden Dep.) Quinlisk sent a copy of her September 4 e-mail to Donna Amos, an act Bowden believes was an attempt to intimidate or discipline her. (Bowden Dep. at ¶ 168.)

The day before, however, on September 3, 2005, Bowden had herself forwarded a copy of the testy e-mail exchange to Kirkland's Human Resources Manager Cheryl Bane with the following message: "Cheryl, I really feel I'm being harassed by Leigh Quinlisk. She certainly has a disparate approach to her handling of people in her department . . . . I don't believe she's fair, and she appears to be uncomfortable dealing with African-Americans . . . . This latest communication from Leigh proves that she is incapable of objectivity in her dealings with me." (Ex. 29 to Bowden Dep.) At her deposition, Bowden testified that she believed Quinlisk's criticism was racially motivated because Quinlisk did not similarly criticize Rampich or other Caucasian employees for their work on the Guide. (Bowden Dep at 179.) "[Rampich] never was written up for selecting bad documents, for having the index wrong, or for anything to do with Best Practices," Bowden testified. (Bowden Dep. at 168.) Bowden admitted, however, that she did not know whether Quinlisk ever spoke to Rampich about any mistakes that Rampich may have made while working on the Guide. (Bowden Dep. at 177-78.)

On September 5, 2005, Bowden wrote yet another e-mail to Quinlisk, this time informing Quinlisk that the matter had been referred to Bane. (Ex. 3 to Deposition of Wendy Cartland, Kirkland's firm-wide HR Director.) Bowden sent copies of this e-mail to Bane and several senior administrators and attorneys, including members of Kirkland's executive committee. (Id.) The e-mail from Bowden reads: "Leigh, I'm not going to argue with you. I see where you're going with this. If you're going to set me up, you'll have to do it in public." (Id.) It goes on to list several former African-American employees of Kirkland who, Bowden asserted, had been victims of discrimination at Quinlisk's hands. In the e-mail, Bowden accused Quinlisk of treating her African-American subordinates "coldly and otherwise differently while overlooking blatant problems" with Caucasian subordinates. (Id.) Bowden further claimed that Quinlisk's "horrible" comment was made in retaliation for Bowden's (1) complaining that two Caucasian employees took excessive breaks to smoke cigarettes, (2) complaining about delays in receiving Bowden's FPSS skills test results, (3) complaining that the FPSS skills test scoring was unfair, and (4) refusing to "pilot" a particular kind of software that Quinlisk had requested. "I will not be your next victim," Bowden concluded. "Worrying about what your next attack will be creates unnecessary stress for me at work and has affected my ability to sleep at night." (Id.)

Following the receipt of Bowden's e-mail, Kirkland's Human Resources staff began an investigation into her allegations. (Def. 56.1 Stat. at ¶ 28.) The HR staff reviewed personnel files for all current and former employees who had reported to Quinlisk, checked the termination and resignation records for departing Document Services and Secretarial staff, and independently evaluated the FPSS testing instruments that were the focus of Bowden's complaints. (Id. at ¶ 29.) Kirkland's HR staff also interviewed Bowden, Amos, Quinlisk, Staff Recruiting Manager Mary McMahon, and Staff Recruiter Deb Johanson. (Id. at ¶ 30.) On September 21, 2005, Kirkland's Chief Human Resources Officer Gary Beu met with Bowden for more than two hours to discuss her complaint. (Bowden Dep. at 266; Beu Dep. at 89-90.)

Beu testified that he felt that the e-mail exchange that had served as the catalyst for Bowden's complaint had been "a serious misunderstanding . . . particularly as it related to the development of this best practices guide and a selection of certain examples." (Beu Dep. at 92.) In Beu's estimation, there was some "misinterpretation of what was intended by the use of the word or reference to these exemplars being in horrible condition. And that it seemed to me that Ms. Bowden took considerable offense at what she perceived to be a criticism [of her work]." (Id. at 94.) Beu concluded that it would be beneficial for Bowden and Quinlisk to meet face-to-face to "talk through this issue regarding the best practices guide." (Id. at 93.) Beu suggested the meeting to Bowden, and Bowden indicated that she would be open to the possibility. (Id. at 103-04.) Beu advised Quinlisk that Bowden was willing to meet with her, and Quinlisk contacted Bowden to request a meeting. (Beu Dep. at 124-25; Bowden Dep. at 147-48.) Bowden did initially agree to the meeting, but later backed out and refused to speak with Quinlisk. "I felt that I would get in trouble," Bowden testified, "that something would be mischaracterized, and I didn't think it wise." (Bowden Dep. at 148.) In light of the continuing discord between the two women, Kirkland offered to transfer Bowden into a legal secretary position, in which she would no longer report to Quinlisk. According to Kirkland's firm-wide HR Director, Wendy Cartland, the proposed transfer would not have resulted in a change in Bowden's compensation or employment status. (Cartland Dep. at 135-36.) Bowden declined the offer, however, and remained in the FPSS position reporting to Quinlisk.

B. Bowden Receives a "Final Warning"

During summer 2005, Bowden volunteered to assist with an out-of-town trial at the request of several attorneys. (Bowden Dep at 124-25.) The trial was in Denver, Colorado, and was scheduled to last several months. (Def.'s 56.1 Stat at ¶ 43.) Dan Rooney, a Litigation Assistant on the trial team, e-mailed Amos in late August to say that the senior attorneys on the case had specifically requested Bowden's assistance and sought approval for Bowden to travel to Denver for the duration of the trial. (Ex. 15. To Bowden Dep.) On September 7, 2005, Amos wrote to Rooney, stating, "I don't foresee a problem with Tammi assisting." (Id.) Bowden reiterated her willingness to assist at the trial, and on September 21, 2005, Amos gave Bowden final approval to travel for the assignment. (Def.'s 56.1 Stat at ¶ 43; Ex. 16 to Bowden Dep.)

The next day, four days before the trial team was set to depart for Denver, Bowden sent Rooney an e-mail advising him that "due to an unexpected and unresolved employment matter, I feel that it is in my best interest to remain behind until it is concluded. Sorry that this affects the team." (Bowden Dep. At 130; Ex. 17 to Bowden Dep.) Rooney responded with surprise and consternation: "Please let me know ASAP when I could expect you to come out. I have no idea what your situation is but I can't have anything negatively impact what we are trying to do for the client." (Id.) Bowden then withdrew entirely from her commitment to travel for the trial. The "employment matter" to which Bowden was referring is apparently her complaint against Quinlisk, and her decision to withdraw from the trial team was unilateral. Bowden admitted that she did not seek advance approval from any supervisor or manager before announcing her withdrawal. (Bowden Dep. at 130-131.) According to Bowden, her offer to assist the trial constituted "a voluntary assignment" that was outside of her regular job duties. (Id.) Thus, Bowden reasoned, no approval was necessary before she withdrew her offer of help. (Id.) Cartland and Beu confirmed that traveling to support cases is indeed voluntary under Kirkland's policies for support staff. (Beu ...

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