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Kelley Coons v. Walsh Construction Company

August 18, 2011

KELLEY COONS PLAINTIFF,
v.
WALSH CONSTRUCTION COMPANY,
DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

On July 7, 2010, Kelley Coons filed suit against her former employer, Walsh Construction Company, alleging that she was terminated from her job as a Safety Manager because of her gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. Now before me is defendant's motion for summary judgment, which I grant for the reasons that follow.

I.

The following facts are undisputed, except where noted. Plaintiff applied for a position as Safety Manager with defendant in late 2006. After interviews with Greg Pipala, a Senior Safety Manager in defendant's Building Division, and others, plaintiff was offered and accepted the position. Hank Botterman, Walsh's Corporate Safety Director and Pipala's immediate supervisor, expressed reservations about hiring plaintiff because he felt "she may not be qualified for the job." Pipala Dep., Pl.'s SOF, Exh. 1, 30:1-2. See also Botterman Dep., Pl.'s SOF, Exh. 2, 20:22-23 ("[Pipala] was much more confident in her than I was.") Pipala nevertheless decided to hire plaintiff, explaining "[h]er experience was not that strong, but I felt that she could do a good job given some mentoring and some education along the lines of safety courses." Id. at 30:5-8. Throughout her employment with defendant, plaintiff reported directly to Pipala for her project assignments and her performance reviews.

At the time of her termination in September of 2009, plaintiff was the only woman among the forty to fifty Safety Managers employed by defendant companywide (i.e., across the roughly twenty states in which defendant had projects). The other Safety Managers reporting to Pipala in the Building Division were Raymond Williams, Steve Levario, and Todd Ross. Levario, who worked out of Phoenix, Arizona, has a Certified Health Safety Technician (CHST) designation. Williams has an Associate Safety Professional (ASP) designation, which is a level of designation higher than a CHST designation, and which requires a college degree.*fn1 Plaintiff had neither of these designations (having taken and failed the test for the CHST designation during the course of her employment), nor did she have a college degree. Ross also had neither designation, but he did have a college degree, and he had more seniority than plaintiff at defendant, as did Williams.

Plaintiff's first assignment as Safety Manager was on a job referred to as the Rosemont Intercontinental Hotel project. Beginning July 21, 2008, plaintiff was assigned to work sixty percent of her time at a project called the Wilson Yard project, while she remained on the Rosemont project for the remaining forty percent. (Technically, the evidence is that her "project cost allocation" was split sixty/forty between the two projects, but there is no basis in the record to controvert the logical assumption that this corresponds roughly to how her work was divided.) For one month, from September 22, 2008 to October 22, 2008, plaintiff was transferred to (again, her "project cost allocation" was 100% to) a project called the Legacy project. She was then transferred back to the Wilson Yard project, where she remained until her termination in September of 2009. She received a raise during this time, on November 18, 2008.

In August of 2009, several of defendant's projects in the Chicago area were nearing completion, and there was no new work coming up in the Building Division.*fn2 As Botterman testified, "we were running out of work for our safety managers." Botterman Dep., Pl.'s SOF, Exh. 2, at 55:5-8. Among the projects nearing completion was the Sherman Hospital project to which Todd Ross was assigned. Pipala and Botterman decided to put Ross on the Wilson Yard project.

Pipala and Botterman wanted to keep Ross---who had seniority in Pipala's group--in the Chicago area for new or larger projects in the future.*fn3 In addition to his seniority to plaintiff, Ross "had more experience. He had an education. Kelley didn't have a degree. ... Kelley didn't have a lot of safety manager experience and that was a component of the decision." Botterman Dep., Pl.'s SOF, Exh. 2, 58:5-6. Moreover, Ross's "performance [was] one of the best." Id., 55:12. Accordingly, Pipala and Botterman tried to find another placement for plaintiff, and they met with her in late August to discuss transferring her to a project in Fort Stewart, Georgia. The parties dispute precisely what was discussed at that meeting, but plaintiff acknowledges that she was told she needed to move to the Fort Stewart project to stay employed with defendant. Coons Dep., Pl.'s SOF, Exh. 3, at 245:23-246:3. Plaintiff further testified that she understood Ross had more seniority than she, and agreed that her transfer to Georgia was "according to company policy."*fn4

Plaintiff also stated that she was happy with the terms of the transfer discussed at that meeting. Id., at 246:10-12.

Ultimately, however, plaintiff declined the transfer to Georgia because she was not satisfied with the final terms of the offer, which she claims were less favorable than those discussed at her meeting with Pipala and Botterman.*fn5 Thereafter, defendant offered the Fort Stewart position to Mark Tulin (a man), who accepted it on the terms plaintiff had rejected.

On September 9, 2009, Pipala informed plaintiff that she would be laid off effective the following day, but that he hoped to be able to rehire her in the future. Although plaintiff understood that she was eligible for rehire, she has not applied for any position with defendant since her termination.

Since plaintiff's termination, Williams was transferred to a project with another division in Louisiana, and Levario accepted a transfer to a project with another division near Oklahoma City, rather than be laid off for lack of work. Todd Ross is the only remaining Safety Manager in Pipala's group.

II.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986). I must construe the evidence and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). Nevertheless, to survive a properly supported motion for summary judgment, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 ...


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