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Mary Carroll v. Merrill Lynch

May 13, 2011

MARY CARROLL, PLAINTIFF,
v.
MERRILL LYNCH, AND JIM KELLIHER, PATRICIA KELLIHER DEFENDANTS,



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

MEMORANDUM OPINION AND ORDER

Plaintiff Mary Carroll worked as a "trade balancer" for Merrill Lynch's clearing services department in Chicago, Illinois from 1978 until February 2006. In July 2005, Carroll complained about the conduct of one of her supervisors; in this lawsuit, she alleges that as a result of her complaints, she was demoted and subject to threats from co-workers. On Thanksgiving evening, 2005, Carroll called the home of Jim Kelliher, a co-worker, and engaged in a thirteen-minute-long conversation that Kelliher's wife, Patricia, partially recorded. After Jim Kelliher played the taped conversation for Merrill Lynch executives, Carroll was placed on administrative leave and eventually fired. Shortly before Plaintiff's termination, Merrill Lynch deposited and, several days later, withdrew a bonus from her bank account. At Merrill Lynch's request, security staff banned Plaintiff from entering the building where Merrill Lynch's offices were located. Plaintiff nevertheless attempted to interview for jobs with other trading firms in that building. She alleges here that one potential employer declined to hire her based on negative comments from Merrill Lynch.

In this lawsuit, Carroll alleges sex discrimination, hostile work environment, and retaliation in violation of Title VII. Carroll also brings a host of state law claims, including breach of contract, a violation of the Illinois Wage and Payment Collection Act, quantum meruit, tortious interference, violations of the Illinois Eavesdropping Act, intrusion upon seclusion, and intentional infliction of emotional distress. At Defendants' request, this case was stayed from June 2007 to June 2009 while proceedings were ongoing before the Illinois Human Rights Commission. Defendants Merrill Lynch, Jim Kelliher, and Patricia Kelliher now move for summary judgment on all counts.

BACKGROUND*fn1

Plaintiff Mary Carroll was employed by Merrill Lynch for more than 25 years, beginning in 1978. During 2005 and early 2006, she held the position of "trade balancer" at Merrill Lynch's clearing services department in Chicago. (Defs.' 56.1(a) ¶ 2.) As a trade balancer, Carroll ensured that trades done on the trading floor were properly recorded, and, if they were not, would work with representatives of other trading firms to resolve inconsistencies. (Defs.' 56.1(a) ¶ 3.) (The precise trading floor or floors involved are not identified in the record.)

Plaintiff's claims center around events that took place between June 2005 and April 2006. In June 2005, Doug Hren was Plaintiff's direct supervisor, and Lou Buttny supervised Hren. (Defs.' 56.1(a) ¶ 3.) Walter Roesch became Vice President of clearing services for Merrill Lynch on August 1, 2005. (Id. ¶ 4.) Jim Kelliher, a Defendant in this case, was a trading floor supervisor in the Chicago clearing services department. (Id. ¶ 5.)

On July 25, 2005, Plaintiff contacted Merrill Lynch's Employee Service Center to lodge a complaint that Hren intended to re-hire an individual, K.J.,*fn2 whom Plaintiff claims was fired in August 2004 after making death threats against Merrill Lynch employees. (Id. ¶ 9; Pl.'s 56.1(b) ¶ 1; Carroll Deposition, Ex. 1 to Pl.'s 56.1(b) at 76-78.) Plaintiff had heard about these threats from a co-worker; no further specifics concerning these threats appear in the record. (Carroll Deposition at 76.) Carroll also reported that her supervisor, Hren, said "Fuck You" to her, though it is not clear under what circumstances or with what frequency. (Carroll Deposition at 78; Pl.'s Resp. ¶ 9.) Carroll complained, in addition, that when Hren learned that she had complained about K.J., Hren called Carroll a "whistle-blower" and told her to "go home and wash your dick."*fn3 (Carroll Deposition at 78, 86; Pl.'s Resp. ¶ 9; Pl.'s 56.1(b) ¶ 1; Defs.' Ex. E-8 at 2.)

On August 1, 4 or 5, 2005, Carroll called the Employee Service Center again, alleging that Hren had made a racist remark toward one of Carroll's co-workers, Lyric Hill, and had been verbally abusive to another employee, J. F. (Carroll Deposition at 79-80; Pl.'s Resp. ¶ 9; Defs.' Ex. E-8 at 2.) Plaintiff also reported that another employee, C. B., had been repeatedly intoxicated at work. (Carroll Deposition at 79; Pl.'s Resp. ¶ 9.)

In late July and August, Joanne Gonzalez, a Merrill Lynch Employee Relations representative, investigated Plaintiff's complaints, met with some of Plaintiff's co-workers, and met with Plaintiff herself on August 18, 2005. (Defs.' 56.1(a) ¶ 10; Defs.' Ex. E-8 at 2.) Gonzalez reported her findings to Roesch and others within Merrill Lynch's management. (Defs.' 56.1(a) ¶ 11.) After reviewing Gonzalez's findings, Roesch decided to fire Hren and his supervisor, Buttny, based on Hren's remarks and Buttny's failure to address Hren's behavior. (Id. ¶ 12.) On August 25, 2005, the day that Hren and Buttny were terminated, Roesch held a department-wide meeting in which he announced the terminations and directed that employees not discuss the matter further. (Id. ¶ 14.) Plaintiff overslept that day and did not report to work; Roesch called her at home to relay the same information to her. (Id. ¶ 15.) That night, Hren called Plaintiff at home to apologize for his behavior, but warned her that people were upset that he had been fired, and that she should "watch her back." (Id. ¶ 16.) (Who in particular was upset, and how Hren knew about it, are unexplained. (Carroll Deposition at 100-102.)) Plaintiff stayed home from work the next day and reported Hren's comment to Gonzalez. (Defs.' 56.1(a) ¶ 17.) Merrill Lynch management contacted Hren and told him not to contact Plaintiff again. (Id. ¶ 18.) Roesch convened a second department-wide meeting either the day Carroll returned to work or the day after (August 27 or 28) to remind everyone not to discuss Hren and Buttny's terminations. (Id. ¶ 19; Roesch Deposition, Ex. D to Defs.' 56.1(a) at 55.)

After firing Hren and Buttny, Roesch restructured the Clearing Services department. (Defs.' 56.1(a) ¶ 20.) Roesch moved Liz Creek, a supervisor from another (unidentified) department to Clearing Services, where she assumed Buttny's job. (Id.) Jim Kelliher, the morning floor supervisor, and Mike Culhane, the afternoon floor supervisor, who (like Hren) had reported to Buttny prior to his and Hren's termination, now reported to Creek, who in turn reported to Roesch. (Id. ¶ 21; Roesch Deposition at 37-40.) After the terminations, Kelliher and Culhane absorbed Hren's responsibilities. (Defs.' 56.1(a)¶ 21.) Plaintiff was re-assigned so that she would report to Karen Klatt, who in turn reported to Jim Halm, a supervisor at an equivalent level to Creek. (Id. ¶ 22.) Plaintiff and her fellow trade balancers, who were now all under the supervision of Halm, were moved from the 11th floor to the 25th floor in mid-September 2005. (Defs.' 56.1(a) ¶ 33.)

When Plaintiff returned to work following her two-day absence, Roesch met with her in person to explain the department's restructuring. It is undisputed that Carroll's official title, salary, and benefits were not changed as a result of this restructuring, but Carroll nevertheless contends that Roesch told her in this meeting that her position no longer existed. (Id. ¶ 23.) As the court understands what she means by this, it is a reference to Carroll's telling Roesch during this meeting that she had been serving as a "back-up" for Hren, effectively acting as a supervisor from 5 a.m. until Hren himself arrived "a couple of hours" later. (Pl.'s 56.1(b) ¶ 12; Carroll Deposition at 106-07, 118-19.) According to Plaintiff, in her role as Wren's "back-up," she helped distribute work, dealt with attendance issues, and answered questions from other employees in her department. (Carroll Deposition at 118-119.) Plaintiff claims that she supervised five employees, and also completed a weekly report for Hren and Buttny (neither a description of the content of that report, nor any examples of it, appear in the record). (Pl.'s 56.1(b) ¶ 12; Carroll Deposition at 119, 123.)

Plaintiff offers no evidence of these supervisory responsibilities aside from her deposition testimony, and Defendant denies that she had any supervisory responsibilities aside from reporting attendance issues to Hren. (Defs.' Resp. ¶ 12.) Roesch testified that until he met with Carroll, he was unaware that employees called Carroll regarding their attendance at work. (Roesch Deposition, Ex. 6 to Pl.'s 56.1(a) at 27, 32.) Roesch explained that he put an end to that practice, and although he does not specify the actions that were taken to do so (and it is not explained anywhere else in the record), he does suggest it was a policy change, ostensibly one that was communicated to employees. (Id.) Roesch explained that, "I don't believe in having people call their co-workers when they are not going to come to work. They call their supervisor. If their supervisor is not available they need to call their vice president." (Id. at 32.)

At the meeting with Roesch two days after Hren and Buttny's firings, Plaintiff also raised the matter of a potential promotion to assistant vice president that she claimed to have discussed with Buttny. (Defs.' 56.1(a) ¶ 27.) Roesch told her he was unaware of these discussions, and asked her to provide him with any information she had regarding them. Defendant claims she never did so. (Defs.' 56.1(a) ¶ 28.) Plaintiff asserts that there is an e-mail reflecting this discussion with Buttny, but she has not placed it in the record and can "not recall at this time (5 years later) if she provided the document to Roesch." (Defs.' 56.1(a) ¶ 28; Pl.'s Resp. ¶ 28.) After the meeting, Plaintiff began questioning other employees about their job duties. (Defs.' 56.1(a) ¶ 26; Pl.'s Resp. ¶ 26.) Without any elaboration or supporting evidence, Plaintiff asserts that she "was asking about other employees work duties because the employer claimed the changes were broader, department wide but the lead duties continued to exist on other shifts thus the removal from only the Plaintiff strengthened Plaintiff's reasonable belief that the Plaintiff was punished for complaining and causing two males to be fired." (Pl.'s Resp. ¶ 26.)

Plaintiff claims that in the days after she returned to work, she was subjected to threats because of Hren and Buttny's firings. She alleges that a co-worker, C. B., told her he would "kick her ass," and that another co-worker, C. K., threatened to "kick her teeth down her throat." (Pl.'s 56.1(b) ¶ 13; Defs.' Ex. E-8 at 3.) Plaintiff contends that C.B. and C.K. made these threats "because of their belief that Plaintiff was responsible for Buttny and Hren being fired," but she offers no record evidence that the threats were made for this reason. (Defs.' Ex. E-8 at 3.) Plaintiff also claims that several men looked at her and placed their hands on their crotches, though it is not clear who these men were, whether they worked for Merrill Lynch, when these events occurred, or how they related to the firings of Hren and Buttny. (Defs.' 56.1(a) ¶ 29.) During the next few months, Plaintiff called Joanne Gonzalez to complain about these incidents, but despite requests from Gonzalez and others in the Employee Service Center, Plaintiff refused to provide the names of those about whom she was complaining. (Defs.' 56.1(a) ¶¶ 29, 30.) Plaintiff contends that she would have provided the names, but requested a face-to-face meeting with Gonzalez or Roesch before she would do so, and that meeting was never arranged. (Pl.'s Resp. ¶ 30.) Plaintiff suspects that Gonzalez had disclosed Plaintiff's complaints about Hren; because Plaintiff concludes that Gonzalez had breached a promise of confidentiality about the matter, Plaintiff no longer trusted Gonzalez. (Id.) On September 15, 2005, in response to Plaintiff's unspecified allegations of threats, Creek and Halm (Plaintiff's new supervisor) held a meeting with their staffs to explain Defendant's zero-tolerance policy toward harassment. (Defs.' 56.1(a) ¶ 32.)

On September 22, 2005, Plaintiff asked Creek about a vacant afternoon Trade Checking Supervisor position. (Defs.' 56.1(a) ¶ 34.) (The record is not clear as to why Creek, who was not Plaintiff's supervisor, was the contact person for this position.) Plaintiff told Creek "shortly thereafter" (exactly when is not specified) that she was not interested in the position. (Defs.' 56.1(a) ¶ 35; Pl.'s Resp. ¶ 35.) On September 28, 2005, Plaintiff e-mailed Creek and asked her whether she had been considered for the position, and Creek explained that she had not been considered because she had not applied. (Defs.' 56.1(a) ¶ 36-37.) Plaintiff contends she did not apply because of "Defendant's procedure of asking certain people to apply, thus being the chosen ones for the position." (Pl.'s Resp. ¶ 36.)*fn4 As evidence of the existence of this "procedure," Plaintiff cites only her own deposition. (Pl.'s Resp. ¶ 37.) On September 29, 2005, after she raised questions about not being chosen for the position, Plaintiff met with Roesch and Creek. (Defs.' 56.1(a) ¶ 38; Defs.' Ex. 23.) Defendant claims that during this meeting, Plaintiff became "hysterical" and began screaming; Plaintiff denies having become "hysterical" but acknowledges that "she was upset and cried." (Defs.' 56.1(a) ¶ 39; Pl.'s Resp. ¶ 38.) It is undisputed that Plaintiff did not apply for the position. (Defs.' 56.1(a) ¶ 38; Carroll Deposition at 153.)

On October 21, 2005, Plaintiff complained to her immediate supervisor, Karen Klatt, that people on the 11th floor, where she had previously worked, were not picking up her phone calls. (Defs.' 56.1(a) ¶ 41.) In their statements of fact, neither Plaintiff nor Defendant offers specifics about what occurred in response to this complaint, but Plaintiff has submitted an October 22 e-mail message from Creek to Roesch about the matter, and the court notes that Roesch's testimony on the issue appears to be limited to the information in this e-mail. In the e-mail, Creek explains that Klatt told her that Plaintiff had said "people on 11 were not picking up her calls." (E-mail from Liz Creek to Walter Roesch of 10/22/05, Ex. 9 to Pl.'s 56.1(b).) Creek wrote that, "[C.B]*fn5 was up here yesterday morning manning the phones while everyone else was down on the trading floor." (Id.) Creek continued, "I asked [C.B.] if he was picking up all calls while we were out and he said yes. I asked him to make sure he picked up all the calls and took (sic) messages if necessary." (Id.) Creek then detailed her further discussion with C.B. in which C.B. reportedly explained that he thought Plaintiff was "reacting" because he had turned off Lyric Hill's radio earlier in the week, and that he thought "Mary is after him and that she is trying to get him in trouble." (Id.) There does not appear to have been any additional follow-up by Creek, and the record contains no additional accusations from Carroll that her calls continued to go unanswered.

On October 24, however, while on a phone call with an unidentified individual (about whom no details are offered anywhere in the record), Plaintiff announced that she was going to make a "big deal" about this issue, and that "she was not going to lose on this." (Defs.' 56.1(a) ¶ 43.) Klatt overheard this conversation and e-mailed Halm about it. (Roesch Deposition at 71.) Plaintiff does not deny that she made these statements, but alleges that she was "overheard in a phone call" and that "Roesch admitted he exaggerated the facts to make the Plaintiff look bad." (Defs.' Resp. ¶¶ 42-43.) Plaintiff does not explain what facts Roesch allegedly exaggerated, how they were exaggerated, or to whom or in what context they were exaggerated. It does not appear from the record that Plaintiff ever took any additional action regarding unanswered phone calls, such as filing a formal complaint, and the record is likewise silent as to whether Defendant took any additional action.

Evidently during this same period of time (the episode is mentioned in the October 22 e-mail from Creek to Roesch), Plaintiff questioned Jim Kelliher, a trading floor supervisor, about his job duties; Kelliher responded by telling Plaintiff that he supervised trading floor activities and trade checkers. (Defs.' 56.1(a) ¶ 46.) Plaintiff concluded that Kelliher was doing "her [Plaintiff's own] job," and told him so. (Defs.' 56.1(a) ¶ 47.) Plaintiff explains that she "was upset by giving of her job duties to a 'do nothing' employee" and that she "believed Kelliher was given the duties she [formerly] had, and that he received these duties based on her demotion." (Pl.'s Resp. ¶ 47.) Plaintiff does not identify the individual(s) responsible for assigning her duties to Kelliher.

On Thanksgiving evening, November 24, 2005, Plaintiff placed a call to Kelliher's home. (Defs.' 56.1(a) ¶ 47.) As Plaintiff acknowledged in her deposition, she used profanity in this call, yelled at Kelliher, and was "all riled up" and "angry." (Defs.' 56.1(a) ¶ 48.) Plaintiff and Defendants agree that a portion of the telephone call was recorded by Kelliher's wife, Patricia, but disagree about other circumstances surrounding the phone call. Plaintiff's own version is confusing: Plaintiff asserts that she made two phone calls to the Kellihers, the first lasting 13 minutes and the second lasting 18 minutes, but in that same paragraph, she claims that she made one phone call at 8:59 p.m., and a second call just one minute later, at 9 p.m., when that first call "was cut off and ended." (Pl.'s 56.1(b) ¶ 31.) Plaintiff's phone records themselves show that one phone call to 411 was made at 8:59 p.m., lasting 14 minutes, and that one phone call was made to Kelliher at 9 p.m., lasting 13 minutes. (Ex. 15 to Pl.'s 56.1(b).) The record of the 411 call contains a code, "DA Call," for "Directory Assistance Call." The record of Plaintiff's second call, the call to the Kellihers, contains a code, "DACC," which, according to the legend contained within the telephone bill, stands for "Directory Assistance Call Completion." The court concludes that the only plausible explanation for the overlapping calls is that calls to Directory Assistance that result in a "call completion" to the requested number are recorded as including minutes devoted to the completed call, in addition to the time devoted to Directory Assistance. Thus, in this case, Plaintiff made a one-minute call to Directory Assistance and was connected to the Kellihers for a single thirteen-minute call. The record contains no support for Plaintiff's theory that she made two calls to the Kellihers because the two calls in her phone record-one to Directory Assistance and one to the Kellihers-are the only ones made from Plaintiff's phone that night. The next call from her phone after the conclusion of the thirteen-minute call to the Kellihers was not made until 10:56 a.m. Friday, November 25.

Adhering to her contention that she made two calls to the Kellihers, Plaintiff contends that both she and Kelliher were "inappropriate" during the first call, but that during the second call Kelliher was "very calm" because (she surmises) he knew that he was recording the conversation. (Carroll Deposition at 178.) Neither Plaintiff nor Defendants discuss the substance of the conversation in their statements of fact, and no recording of the conversation is in evidence. There does appear to be a transcript in the record (Defs.' Ex. 64), but it is cited by Defendants only in passing and has not been authenticated. Plaintiff offers a memorandum that Kelliher prepared the day after receiving the call, wherein he explains that:

Mary [Carroll] was clearly angry and upset about something, judging by the tone of her voice. She began by accusing me of making some type of comment that she felt was referring to her. I didn't understand what she was talking about and repeatedly told her this. She never explained exactly what was said, when it was allegedly said, and to whom it was said. All that she kept repeating was that she wants to give me a chance to acknowledge that I did say something. Once again, I told her, "I don't know what you're talking about." (Ex. 17 to Pl.'s 56.1(b).)

Jim Kelliher's wife, Patricia Kelliher, testified that she could hear Plaintiff's voice on the phone from across the room. (Defs.' 56.1(a) ¶ 50.) Concerned by the tone and volume, Ms. Kelliher went upstairs to listen in on the call from another telephone and hit a button on the nearby answering machine, causing a portion of the conversation to be recorded. (Defs.' 56.1(a) ¶ 51.) Patricia Kelliher testified that Plaintiff's "tone made me feel threatened" and that she anticipated reporting the call to police. (Defs.' Resp. ¶ 35.) Plaintiff contends that the recording "was part of a plan to record the Plaintiff to cause her termination," but the only support she cites for this contention is her own testimony. (Pl.'s Resp. ¶ 51.)

Defendants contend that, prior to the phone call, Plaintiff and Kelliher did not have any disputes over work-related issues, and that Kelliher did not serve as Plaintiff's supervisor. (Defs.' 56.1(a) ¶ 54.) As Kelliher explained in the excerpt from his e-mail summarizing the phone call referenced earlier (Ex. 18 to Pl.'s 56.1(b)), he did not know why she had called him, and during the course of the phone call was not informed of any reason for Plaintiff's call. In her deposition testimony, however, Plaintiff claims that she placed the call because she believed Kelliher had told co-workers he had been promoted because of Hren and Buttny's firings. (Carroll Deposition at 173-74.) There is no evidence in the record to support this contention; as described earlier, Kelliher held the same position both before and after the firings. The only co-worker identified in the record who allegedly told Plaintiff about Kelliher's alleged statements is "John Figueroa," (Carroll Deposition at 173), a person not mentioned anywhere else in the record. Carroll testified that Kelliher had "plenty of conversations with just about everybody in the office," but specifies no one else. (Id.)

Plaintiff notes that Kelliher's alleged statement that he had benefitted from the firings was not what upset her; rather, she was upset "[b]ecause I went to work every day and worked. I mean, to see somebody come in and do nothing and move up the chain, it just made no logical sense to me." (Carroll Deposition at 174.) Plaintiff also testified that she and Kelliher had an ongoing dispute about a set of window blinds in an unidentified room in the Merrill Lynch offices, which she claimed Kelliher would regularly shut, over her objection. (Carroll Deposition at 171-72.) (How a squabble about window blinds relates to any claim in this lawsuit is wholly unexplained.) Further, Plaintiff explains she made the call at the advice of a counselor from the Merrill Lynch Employee Assistance Program, who reportedly suggested that Plaintiff "reach out to people and tell them how [threats of retaliation for Hren and Buttny's firing] were effecting (sic) me." (Pl.'s 56.1(b) ¶ 30.) Defendants admit Plaintiff utilized the Employee Assistance Program, but argue that it is "immaterial" whether a counselor suggested she reach out to other co-workers. (Defs.' Resp. ¶ 30.)

After the Thanksgiving evening call, Kelliher called his supervisor, Creek, and left a message for her regarding the phone call. (Defs.' 56.1(a) ¶ 55.) Kelliher followed up the next day by typing up the above-referenced summary of his conversation and forwarding it to Creek and Roesch. (Defs.' 56.1(a) ¶ 57.) Kelliher also discussed the call in person with Creek and over the phone with Roesch. (Defs.' 56.1(a) ¶ 58.) At Roesch's request, Kelliher and his wife played the tape she had made of a portion of the phone call in a conference call with Creek. (Defs.' 56.1(a) ¶¶ 59-60.) Roesch himself recorded the playback on a "recorded line" in New Jersey (where Merrill Lynch has its headquarters) so that other management officials could listen to the call later if necessary. (Defs.' 56.1(a) ¶ 61.)

Plaintiff, too, discussed the phone call on that Friday, November 25, with Klatt and Halm, her supervisors. (Carroll Deposition at 198.) She also described the call to her co-worker, Lyric Hill, via instant messaging; when Hill expressed surprise that Plaintiff had called Kelliher at home, Carroll responded, "I just fucking snapped." (Carroll Deposition at 200-01.) That same afternoon (November 25), Jim Kelliher transferred the recorded phone call on the answering machine to a cassette tape in order to play it for the police. (Defs.' 56.1(a) ¶ 64.) Also in the afternoon of November 25, the Kellihers reported the incident to the Orland Park Police Department. (Ex. 25 to Pl.'s 56.1(b).) It is not clear precisely when the Kellihers decided to report the incident to police, but there is no suggestion in the record that doing so was the result of discussions with Merrill Lynch employees.

On Monday, November 28, Al Howell, Roesch's supervisor, and Frank Dimarco, Howell's supervisor, listened to the recorded portion of the telephone call. (Defs.' 56.1(a) ¶ 65.) Roesch concluded that Plaintiff should be fired based on an "escalating pattern of erratic and highly inappropriate behavior which culminated in her threatening phone call to the Kellihers." (Defs.' 56.1(a) ¶ 66.) On Tuesday, November 29, 2005, Roesch, aware that Plaintiff had already retained counsel,*fn6 placed Plaintiff on administrative leave pending discharge so that her attorney and Merrill Lynch could work out the terms of her departure and avoid litigation. (Defs.' 56.1(a) ¶ 68.) (It is not specified whether this leave was paid or unpaid.) On December 6, 2005, Merrill Lynch informed Plaintiff's attorney that they intended to fire her. (Defs.' 56.1(a) ¶ 69.)

During this period of time, while Plaintiff was on administrative leave, Merrill Lynch claims that it "erroneously" deposited a $4,000 gross ($2,316 net) bonus into Plaintiff's bank account. Merrill now contends Plaintiff was not entitled to this bonus because only employees in "good standing" are eligible for a discretionary bonus. (Defs.' 56.1(a) ¶ 74.) Merrill retracted the funds six days after depositing them when it became aware of the error. (Defs.' 56.1(a) ¶ 75; Carroll Deposition at 224.) The record is silent concerning who it was that recognized the error or how, when the decision to retract the funds was made, or who specifically made the decision.

On January 18, 2006, Plaintiff filed a police report against the Kellihers for recording her without her permission. (Defs.' 56.1(a) ¶ 70.) It is unclear when or how Plaintiff learned that she had been recorded, but in an e-mail to her attorney sent on Dec. 12, 2005, Plaintiff says, without elaboration, that Roesch "made it a point to tell me the call was being recorded." (Ex. 23 to Pl.'s 56.1(a).) The Orland Park Police Department investigated the complaint, conducting several interviews between January 25, 2006 and January 31, 2006. (Orland Park Police Report 2006- 000479a, Ex. 27 to Pl.'s 56.1(b).) On February 27, 2006, the police officer investigating the complaint contacted Assistant State's Attorney Michelle Forbes, who had been previously apprised of the investigation, and she informed him that "no crime has occurred" and that the office would not pursue a prosecution. (Id.)

On February 9, 2006, Plaintiff was officially terminated after her attorney and Merrill Lynch were unable to agree on the terms of her separation. (Defs.' 56.1(a) ¶ 72.) (The precise manner in which Plaintiff was informed of her termination is not discussed in the record.) On February 14, 2006, Roesch received a message from building security staff that Plaintiff had recently asked them to investigate an incident that occurred at least 11 years earlier, in which an individual employed by Merrill Lynch prior to 1995 had shot a pellet gun toward Plaintiff and Lyric Hill; there is no allegation she was hit. (Defs.' 56.1(a) ¶ 76; Carroll Deposition at 233.) Building security staff asked Plaintiff to instead report the incident to Merrill Lynch, but she had refused to do so. (Defs.' 56.1(a) ¶ 77.) Viewing this behavior as erratic, Roesch directed building security to place Plaintiff on a list of individuals banned from the building. (Defs.' 56.1(a) ¶ 78.)

Plaintiff claims that on April 24, 2006, she attempted to apply for a job with another employer that occupied space in the same building as Merrill Lynch, 440 South LaSalle Street, but was denied access. (Pl.'s 56.1(b) ¶ 57.) Plaintiff does not specify who this employer was or offer any further details. (Id.) On April 27, 2006, Plaintiff's attorney contacted William Bubb, a Merrill Lynch attorney, to inform him that Plaintiff had been offered a job with a company based in the Merrill Lynch building, "Trading Services, LLC" and needed the ban lifted, as she would be starting work on May 15, 2006. (Ex. 41 to Pl.'s 56.1(b).) Plaintiff has offered no other evidence of a job offer, and no further specifics concerning "Trading Services, LLC" appear in the record. The e-mail does suggest this is the same employer that Plaintiff had attempted to visit on April 24; her attorney wrote that Plaintiff "was able to meet with the interviewer elsewhere and was offered the job." (Ex. 41 to Pl.'s 56.1(b).) Bubb responded on May 2, explaining that "[w]e are working to get this resolved."

(Ex. 41 to Pl.'s 56.1(b).) Defendant claims that Roesch immediately lifted the ban after being informed of the situation, and Plaintiff does not dispute that the ban was lifted on May 2. (Defs.' 56.1(a) ¶ 79; Pl.'s 56.1(b) ¶¶ 59-60.) That same day, Plaintiff sent an e-mail to her attorney explaining that she had called the hiring manager of "Chicago Trading Services" to inform him that the ban on her entering the building had been lifted and was told "Merrill said not to hire me, specifically to 'steer clear of her.'" (Ex. 43 to Pl.'s 56.1(b).) The record is unclear as to whether any additional discussions between Plaintiff and this firm ever took place. Plaintiff's attorney sent an e-mail to Bubb on May 3, asserting that Plaintiff had been denied a job by a firm called "Flematt" because of what individuals at Merrill Lynch said about her. (Ex. 38 to Pl.'s 56.1(b).) (It is unclear whether Flematt, Chicago Trading Services, or Trading Services LLC, are the same company.)

In response to this sequence of events, Carroll has filed a number of administrative charges. On January 17, 2006, she filed a charge with the Illinois Department of Human Rights alleging discrimination based on a physical handicap and retaliation for having complained about sexual harassment. (2006CF1741, Ex. 29 to Pl.'s 56.1(b) at 1, 2.) In this initial charge, Plaintiff claimed to suffer from a back injury and alleged that "[o]n or about July 24, 2005, Respondent failed to accommodate me. The accommodation consisted of making my work station ergonomic." (Id.) Plaintiff also charged that she was ...


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