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Asha Subraya Bhat v. Accenture

August 23, 2011


The opinion of the court was delivered by: Magistrate Judge Finnegan


Plaintiff Asha Subraya Bhat filed this pro se lawsuit charging her former employer, Defendant Accenture LLP (incorrectly sued as Accenture, Inc. and Accenture Technology Labs) with sex, race and national origin discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and have now filed cross-motions for summary judgment on all claims. For the reasons set forth here, Defendant's motion is granted, and Plaintiff's motion is denied.


A. Local Rule 56.1

As mandated by Northern District of Illinois Local Rule 56.2, Defendant served Plaintiff with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment." (Doc. 109). The notice explains that Plaintiff was required to comply with Federal Rule of Civil Procedure 56 and Local Rule 56.1 in responding to Defendant's motion for summary judgment and statement of material facts, and sets out the consequences of failing to do so. See Padilla v. Bailey, No. 09 C 8068, 2011 WL 3045991, at *1 (N.D. Ill. July 25, 2011).

Local Rule 56.1 "is designed, in part, to aid the district court, 'which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information,' in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (quoting Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994)). The Rule requires a party seeking summary judgment to file "a statement of material facts as to which the moving party contends there is no genuine issue," and to present those facts in "short numbered paragraphs" with supporting record citations. Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). See also L.R. 56.1. The opposing party must then file "a response to each numbered paragraph in the moving party's statement," also with supporting record citations. Id.

"Although courts must construe pro se pleadings liberally, . . . a plaintiff's pro se status does not absolve h[er] from complying with the federal and local procedural rules." Padilla, 2011 WL 3045991, at *2 (citing McGee v. Bartow, 593 F.3d 556, 566-67 (7th Cir. 2010); Greer v. Board of Educ. of City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001)). Here, Plaintiff has submitted a Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment that predominantly serves as a statement of facts. Each enumerated "fact" is supported by numerous additional "facts" that are often of questionable relevance, lacking in admissible record support, speculative, or more appropriately viewed as argument. (Doc. 114). The same is true of Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment, and two of her reply briefs. (Docs. 122, 128, 132).

Though Plaintiff's facts do not comply with Local Rule 56.1, the Court has done its best to sort through the briefs and trace Plaintiff's version of events, as well as her legal arguments and reasoning. Where Plaintiff has not directly responded to any of Defendant's enumerated facts as set forth in Local Rule 56.1, those facts have been deemed admitted. See, e.g., Wilson v. Archer Daniels Midland Co., No. 09 C 4183, 2011 WL 2420259, at *1 n.1 (N.D. Ill. June 8, 2011) ("A litigant's failure to dispute the facts set forth in its opponent's statement in the manner required by Local Rule 56.1 results in those facts being deemed admitted for purposes of summary judgment.") To the extent any fact is not addressed in this opinion, the Court has deemed it inadmissible and/or irrelevant. In that regard, Defendant's Motion to Strike Additional Facts Set Forth in Plaintiff's Reply in Support of Her Motion for Summary Judgment [Doc. 134] is denied as to any fact mentioned in this opinion, and granted as to all other facts.

B. Plaintiff's Objections to Documents and Affidavits

Before turning to the relevant facts, the Court must first address Plaintiff's objection that Defendant improperly relies on (1) documents produced for the first time either on May 17, 2011, or in connection with summary judgment; and (2) inadmissible affidavits.

1. Documents

Plaintiff objects to certain exhibits that are attached to the affidavits of Human Resources Representative Stacy Sikes and Plaintiff's career counselor, Craig Gettelman. She also takes issue with documents designated as Bates Nos. 00213-00222, which Defendant produced on May 17, 2011. Plaintiff claims that she never saw any of these documents prior to receiving Defendant's motion for summary judgment, and that this late production "raises questions of authenticity." (Doc. 122, at 10). As a preliminary matter, the Court finds that the authors and/or recipients of the documents in question properly authenticated them with appropriate affidavits. See Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006) ("To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e).") (internal quotations omitted). Plaintiff's objection on authenticity grounds is thus overruled.

In addition, the Court has reviewed the documents and is satisfied that they do not contain any new information that in any way prejudiced Plaintiff's ability to pursue or respond to summary judgment. Defendant produced several of the challenged affidavit exhibits early in discovery, including exhibits B and C to Sikes's affidavit (Bates Nos. 00023 and 00006, respectively), and exhibit A to Gettelman's affidavit (Bates No. 00001). (Doc. 125, at 5). There is nothing improper or inadmissible about these documents.

With respect to the documents produced on May 17, 2011, most are simply duplicates of documents Defendant produced earlier in the litigation. For example, the document with Bates Nos. 00213-00214, also attached as exhibit C to Gettelman's affidavit, is a duplicate of an email previously produced as Bates Nos. 00019-00020. The document with Bates Nos. 00215-00217 is a duplicate of a performance review prepared by Julio Rivera, which Defendant produced to Plaintiff earlier in discovery as Bates Nos. 00195-00197. The only "new" information in the document is an email showing that Rivera sent a copy of the review to Gettelman on January 3, 2009, which is the same day he emailed it to Plaintiff. (Doc. 127-3, at 4-6; Doc. 127-5, at 2-4). Similarly, the document with Bates Nos. 00218-00221 is a duplicate of a performance review prepared by Joshua Kahn, which Defendant produced to Plaintiff earlier in discovery as Bates Nos. 00198-00201. The only "new" information in this document is an email showing that Kahn sent a copy of the review to Gettelman on September 15, 2008, three days before he emailed it to Plaintiff. (Id. at 7-10, Doc. 127-6, at 2-5). None of these documents is "new" in any material sense, or inadmissible.

Defendant concedes that the final document, Bates No. 00222 attached as exhibit E to Gettelman's affidavit, was never produced prior to May 17, 2011. This document is Gettelman's summary of a conversation he had with Plaintiff on November 7, 2008 regarding her performance. (Id. at 11). Contrary to Plaintiff's assertion, this production (like all the others) occurred before Defendant filed its motion for summary judgment. The Court finds that Defendant properly supplemented its document production in accordance with Rule 26(e), and there is no basis for striking Bates No. 00222. See, e.g., Jones v. National Council of Young Men's Christian Ass'ns of the U.S., No. 09 C 6437, 2011 WL 3273868, at *3 (N.D. Ill. July 28, 2011) ("[U]nder Federal Rule of Civil Procedure 26(e), each party has a duty to timely amend and/or supplement their responses to discovery if they obtain additional information or know that a response was incorrectly made."); Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 813 (7th Cir. 2006) ("It is well-settled that district courts enjoy broad discretion in controlling discovery."). Notably, Plaintiff herself produced some 139 additional pages of documents on May 20, 2011. (Doc. 127-2 ¶ 12). Plaintiff's objections regarding Defendant's document production are all overruled.

2. Affidavits

Plaintiff also objects to the admissibility of five affidavits. She appears to suggest that Kahn, Rivera, Sikes, Gettelman and Recruiter Daniela Fuller cannot provide affidavits in this case either because they are not allowed to add information beyond what is contained in their written reviews of her, or because they did not participate directly in the decision to discharge her. (Doc. 122, at 9). This is incorrect. Rule 56(c)(4) allows the use of affidavits and declarations to support or oppose summary judgment as long as they are made on personal knowledge. See Luster v. Illinois Dep't of Corrections, __ F.3d __, 2011 WL 2857262, at *3 n.2 (7th Cir. 2011). Plaintiff has presented no evidence demonstrating that the statements contained in the affidavits at issue here are not based on personal knowledge. In addition, neither the Federal Rules nor case law prohibits the use of affidavits where the affiant has submitted a written review, or requires that affidavits come from persons directly involved in a termination decision. It is worth noting that Plaintiff could have deposed all of these individuals during discovery, but she chose not to do so. Plaintiff's objections to Defendant's affidavits are overruled.

C. Relevant Facts

1. Plaintiff's Job Offer

Plaintiff is an Asian female of Indian national origin. In late 2007, she applied on-line for an advertised Consultant position with Defendant's Technology Labs ("Tech Labs") division. (Doc. 107 ¶ 7). After a series of interviews, on January 15, 2008, Defendant offered Plaintiff a different position as an Analyst with Systems Integration & Technology Growth Platform, Consulting Workgroup, Consulting, Technology Labs -- Analytics and Insights. (Id. ¶ 8; Doc. 108-9, at 00084). Plaintiff told Defendant's Recruiter, Daniela Fuller, that she was not happy with the Analyst position or the compensation package offered to her, but she never mentioned her race, sex or national origin, either verbally or in writing. (Id. ¶¶ 9, 13). Rather, Plaintiff believed that she was qualified for the more senior Consultant position for which she had applied because she had worked as a Manager for over six years at her previous job and holds two Masters degrees from United States schools. (Id. ¶ 35; Doc. 114, at 22).*fn1

In response to Plaintiff's concerns, Fuller contacted the Tech Labs managers who had evaluated her skills to see if they would reconsider hiring her at a Consultant level. Fuller also asked the hiring manager about a possible salary increase. The managers all confirmed that the offer was appropriate and non-negotiable based on Plaintiff's skills assessment interview. On January 22, 2008, Plaintiff accepted the offer, including a $15,000 hiring bonus, and began working as an Analyst. (Doc. 107 ¶¶ 8, 10, 11, 35). Senior Manager Craig Gettelman was designated as her career counselor, or mentor. (Id. ¶ 17).

2. Plaintiff's Performance

Employees in Tech Labs do not have permanent assignments but work on a project-by-project basis. Employees may be assigned to a project when a team requests their specific skill set, or they may ask to work in an available role. (Id. ¶ 14). The Human Resources department assists employees in finding projects, as do their career counselors. When an employee finishes a project and is not yet assigned to a new one, she is considered to be "on the bench." The longer an employee is on the bench, the greater the indication that her skill sets are not in demand. Defendant tries to assign internal projects to employees while they are on the bench, but the goal is to have them working on paid client projects. (Id. ¶ 15).

a. The My HealthWealth Project

Gettelman selected Plaintiff to work on her first main project, My HealthWealth, from April through August 2008. During that time, Plaintiff reported to Kanechi Nmani and Joshua Kahn; Kahn, in turn, reported to Gettelman. (Id. ¶¶ 16, 17). At the end of the project, Kahn prepared a Performance Feedback Form ("PFF") on Plaintiff's work.*fn2 He rated her as having met or exceeded expectations in seven of nine categories, noting that she "clearly demonstrated very strong analytical skills and was able to quickly learn on the job as needed," and "consistently drives to add value, seeking out opportunities to enhance existing or planned activities." (Doc. 108-22, at 00200).

At the same time, Kahn found that Plaintiff only "Partially Met Expectations" with respect to "Business Operator Results Rating" and "Established Personal Credibility with Clients and Others." Kahn explained:

Due to Asha's deep expertise in analytics, she sometimes struggles to explain details of her work on a layperson level that is understandable by team members not trained in analytics. Her explanations are sometimes to[o] detailed, which draws clarity away from key messages in emails and status reports. Asha should try to think through key messages before putting them to paper to ensure they are not lost in explanation.

One of Asha's strengths is her continuous drive to add value and improve upon her work; however, she sometimes pushes to[o] hard on an idea that for one reason or another is not integrated into the team's work. Choosing not to use an idea is not meant to be offensive, but is instead part of working collaboratively as a group. In future roles, Asha should look for opportunities to work more collaboratively with team members to embrace the constant sharing of ideas and constructive criticism that drives much of the success in Labs.

A key to the success of Labs is also the ability to meld technology with business objectives. Asha at times struggled to understand the value of business objectives and focused only on the technical aspects of the project. This le[d] to repeated discussions around rationale for decisions, such as why users were not asked directly to provide their net worth. By better understanding when business drives decisions over technology (and vice versa), Asha will be able to add even more value to her projects. (Id.)

Plaintiff insists that Kahn's review "did not have a sound basis in reality." (Doc. 114, at 6). She denies having difficulty explaining details of her work to team members, noting that when Tech Labs Manager Ajay K. Easo interviewed her for a job on January 11, 2008, he stated that she had "[g]ood interpersonal skills" and was "[c]apable of articulating complex approaches in a meaningful way." (Doc. 117, at 18.03.169). Plaintiff also stresses that she helped prepare some simple and concise slides for a "Workshop" for prospective clients. (Doc. 114, at 7). With respect to collaboration and response to criticism, Plaintiff contends that her poor review in these areas "reflects more a desire of passive acceptance from Plaintiff than any real reason or deficiency towards the same." (Id.). Plaintiff notes that she "did what was asked for" on the project, which she believes demonstrates that she "did work collaboratively with others." She also suggests that the fact that she emailed Analyst Kevin Lee some project data reflects collaborative efforts on her part. (Id.; Doc. 117, at 73.01.584).

Plaintiff similarly takes issue with Kahn's assertion that she did not understand the value of business objectives, stressing that she was engaged to work in a technical role.

Defendant responds that there is no evidence that Plaintiff was supposed to ignore business objectives as they related to her technical role. (Id. at 8; Doc. 119, at 13). Plaintiff also claims that there was no actual client for the My HealthWealth project; rather, the business objectives were "just parameters set at product conception as to what the product's idea was supposed to achieve." (Id.). Defendant concedes that there was no outside client, but notes that an internal client, Accenture's Financial Services Operating Group, funded the project to develop a prototype to market. (Doc. 119, at 13).

In any event, on September 18, 2008, Kahn sent Plaintiff an email stating that he would be sending her a copy of her PFF to review before they discussed it. (Doc. 108-22). For some reason, Plaintiff was under the impression that supervisors were not allowed to prepare PFFs unless an employee asked for one. Plaintiff does not know where she got this idea, but believes it "could have been in the training that she had to undergo before starting on the job." (Doc. 122, at 3). Based on that impression, Plaintiff responded to the email as follows:

I did not ask for a [performance review] because I do not think it is fair to get a one way assessment. Manager[s] are equally responsible to be evaluated [on] their ability to get expected work from individuals, manage their expectations from them and be assessed on it as the other way round. Since this is unsolicited I will ignore it. (Doc. 107 ¶ 20). Apparently unsatisfied that this email adequately conveyed her viewpoint, Plaintiff also went to Kahn's floor and told him in a loud voice in an open area near his desk that she did not ask for the review and he had no business reviewing her.*fn3 (Id. ¶ 21).

Finally, Plaintiff emailed Gettelman on September 18, 2008 saying that she "see[s] no point in" the PFF. (Id. ¶ 22; Doc. 108-17, at 00190).

Gettelman responded to Plaintiff's email by explaining that performance evaluations are "a mandatory part of our Accenture career development process" and are designed to "document project contributions, performance factors, strengths and areas for development." (Doc. 108-17, at 00190). He also offered to sit down and discuss this issue with Plaintiff. When Gettelman did meet with Plaintiff, she told him that she felt Kahn talked down to her and was disrespectful, but she never mentioned her sex, race or national origin. (Doc. 107 ¶¶ 23, 38). In her motion for summary judgment, Plaintiff now claims that Kahn complained about her "to ensure that he protects his turf for promotion." As Plaintiff sees it, her "race and stereotypes associated with it ensure that his motives are not questioned." (Doc. 114, at 6). Plaintiff also claims that she spoke with Kahn about the review on some unspecified date, and that although "we seemed to have come to a truce," Kahn did not "change or add anything to his review to reflect that." (Doc. 115 ¶ 6). It is undisputed that Plaintiff could have added her own comments to the PFF, but there is no evidence that she did so aside from her conclusory assertion to that effect. (Doc. 126, at 12).

b. The Consumerism Market Research Project

In September 2008, Senior Manager Julio Rivera selected Plaintiff to work on her second project, Consumerism Market Research for Highmark Inc., based on her resume. (Doc. 107 ¶¶ 24, 25). He assigned her to work on developing best practices, which apparently included the following aspects: "[s]ynthesize business insight needs and assess current capabilities"; "[d]istill leading marketing research practices relevant to client and identifying opportunities for enhancements"; and "[d]efine a marketing research capability change plan." (Id. ¶ 26; Doc. 108-24, at 00195 (setting out "Role Description")).*fn4

At some point during the project, Plaintiff was supposed to participate in making a presentation at the Highmark offices along with Rivera. On the day of the presentation, however, Steven Ramsey, the Accenture Partner assigned to the project, unexpectedly flew in and decided to participate in Plaintiff's place. Plaintiff became upset and started crying in the client's conference room. She was so loud, in fact, that a Highmark Account Executive who was sitting outside of the room heard the commotion and asked if anything was wrong. (Id. ¶ 28(2) n.6). Plaintiff admits that she "got upset" and "felt her emotions and frustrations coming out." She claims, however, that Ramsey "had an outburst" first by "discrediting her work right before going into the client meeting," and that she was only responding to it. (Doc. 114, at 13; Doc. 115 ¶ 3). She does not deny that the client heard her outburst, but maintains that she could not have foreseen that he might overhear because she "made sure she was in a closed room with no one else present" when she felt herself getting upset. (Id.). Plaintiff ...

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