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Mary Carroll v. Merrill Lynch

January 10, 2012

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, a former employee of Merrill Lynch, sued her employer, a co-worker, and the co-worker's wife, alleging a host of federal and state law claims. This court granted summary judgment in favor of Defendants on all of those claims, including sex discrimination, hostile work environment, and retaliation, in violation of Title VII; breach of contract; violation of the Illinois Wage and Payment Collection Act; quantum meruit; tortious interference; violation of the Illinois Eavesdropping Act; intrusion upon seclusion; and intentional infliction of emotional distress. Carroll v. Merrill Lynch, No. 07 C 1575, 2011 WL 1838563 (N.D. Ill. May 13, 2011). Carroll now seeks reconsideration of that ruling on certain claims. She argues that the court erred in dismissing her claims under the Illinois Eavesdropping Act against her co-worker and his wife, Jim and Patricia Kelliher, and that she did not have an opportunity to address Merrill Lynch's arguments for summary judgment on her sex discrimination claim. She has also asked the court to revisit its judgment on her retaliation claim.

On July 11, 2011, the court denied the motion to reconsider with respect to the Illinois Eavesdropping Act claims, because Carroll had fully briefed the issues relating to that claim, in which she alleged that her co-worker and his wife violated the law by recording a harassing phone call that Carroll admits she made. Nothing in Carroll's motion for reconsideration alters the court's earlier analysis of that claim. Moreover, as the court observed at a hearing on this motion, there is no evidence that Carroll suffered any damage as a result of the recording of the harassing phone call. It was the harassing call itself that led to her discharge.

The court agreed with Carroll, however, that because Merrill Lynch had addressed her Title VII sex discrimination claim only in a footnote in its reply brief, Carroll did not have an opportunity to respond to Merrill Lynch's arguments on that claim.*fn1 The court, therefore, has allowed additional briefing on Carroll's claim that Merrill Lynch discriminated against her on the basis of sex and retaliated against her by stripping her of certain supervisory duties, failing to respond to her complaints, and ultimately terminating her. (Plaintiff's Supplemental Response Memorandum in Opposition to Defendant's Motion for Summary Judgment on Title VII Claims (hereinafter "Pl.'s Supplemental Resp. Mem.") [194], at 3-4.)*fn2

BACKGROUND

The court's previous opinion presents the facts at length, but it briefly reviews them here, again in the light most favorable to Carroll. Until 2006, Carroll worked as a trade balancer in the Clearing Services department at Merrill Lynch in Chicago. (Defs.' 56.1 [128] ¶ 2.) Carroll claims she also had certain supervisory duties, pursuant to which she acted as an unofficial "lead checker" in the absence of her supervisor, Doug Hren. (Carroll Dep., Ex. A to Evidentiary Submission in Supp. of Defs.' Mot. for Complete Summ. J. (hereinafter "Defs.' 56.1 Supp.") [129], at 119:6-120:4.) Those duties related mostly to monitoring the attendance of others in the department, but Hren issued performance evaluations in which he stated, "I have complete confidence in Mary's ability to manage the tradechecking department when I need help or am not available." (Overall Performance Summaries, Exs. 10 and 11 to Pl.'s [Mot.] for Leave to File Supplemental/Additional Facts in Supp. of Her Resp. to Mot. for Summ. J. (hereinafter "Pl.'s Mot. for Leave to File Add'l Facts") [192].)

At some point in 2004, K.J., a male co-worker also under Hren's supervision, made death threats against other employees. (Pl.'s Supplimental [sic] Statement of Additional Facts (hereinafter "Pl.'s Add'l Facts") [192-2] ¶¶ 1, 3.) Merrill Lynch management directed Jim Kelliher, a trading floor supervisor and a "buddy" of K.J.'s, to informally investigate the threats. (Pl.'s Add'l Facts ¶ 4.) In response to Kelliher's questions, K.J. said he was not serious about the threats. (Id. ¶ 4.) Still concerned, Carroll spoke with Hren's supervisor, Lou Buttny, about the threats, but Buttny brushed them off as "gossip." (Id. ¶ 5.) Merrill Lynch nevertheless terminated K.J. one month later, although in July 2005, Hren reportedly considered re-hiring him. (Id. ¶¶ 2, 6.) Carroll called Buttny's supervisor, Frank Catris, to express her concern about K.J.'s possible re-hiring. (Id. ¶ 7.) After this call, Hren confronted Carroll, called her a "whistleblower," said "f--- you," and told her, "Go home and wash your dick." (Id. ¶ 8.)

Carroll complained about these remarks to Merrill Lynch's Employee Service Center. (Defs.' 56.1 ¶ 10.) Joanne Gonzalez, an employee relations representative, took prompt action: she investigated the matter and reported it to management, including to Walter Roesch, Vice President of Clearing Services for Merrill Lynch. (Id. ¶¶ 10, 11.) On August 25, 2005, Roesch fired Hren for his remarks and Buttny for failing to address Hren's behavior. (Id. ¶¶ 12, 13.) Roesch then convened a meeting of the Clearing Services department in which he announced the firings and warned employees that retaliation would not be tolerated. (Id. ¶ 14.)

Following Hren and Buttny's termination, Roesch restructured the Clearing Services department, assigning a woman named Liz Creek to replace Buttny and to absorb Hren's duties. (Carroll Dep. at 97:16-98:2.) Roesch met personally with Carroll to explain the changes in the department. (Defs.' 56.1 ¶ 23.) In that meeting, Carroll told Roesch that she had been Hren's "back-up" in his absence. (Id. at ¶ 24.) This was news to Roesch, and he told Carroll that her back- up role would no longer be necessary. (Roesch Dep., Ex. D to Def.'s 56.1, 27:11-28:4.) He testified at his deposition that Carroll explained "that she was Doug's back-up, and as Doug's backup, if he wasn't in and other people needed to call in, they were going to be out, or whatever, [they] called her instead, and I told her that was no longer going to be necessary." (Id. at 138:15-19.)

It is undisputed that there was no change to Carroll's official job title, salary, or benefits, as a result of Hren's termination or Carroll's relief from her role as Hren's back-up. (Defs.' 56.1 ¶ 26.) Carroll nevertheless characterizes this event as a demotion. (Pl.'s Second Summ. J. Aff. Related to Title VII Complaints, Demotion and Supervisory Work Duties (hereinafter "Pl.'s Second Aff."), Ex. 5 to Pl.'s Mot. for Leave to File Add'l Facts, ¶ 11.) She asserts, without any evidence, that the removal of these duties reduced her chances for future promotion and increased income. (Id. ¶¶ 14-17.)

After Hren's termination, Carroll received threats from co-workers who said they would "kick her ass" and "kick her teeth down her throat." (Pl.'s Add'l Facts ¶ 24.) Carroll also claims that several men, unidentified in the record, looked at her and placed their hands on their crotches. (Defs.' 56.1 ¶ 29.) Carroll called Joanne Gonzalez to complain about these incidents, but refused to identify the employees involved because she believed that Gonzalez had breached a promise of confidentiality Gonzalez had made in connection with Carroll's complaints about Hren. (Id. ¶¶ 29, 30; Pl.'s Resp. to Defs.' 56.1 (hereinafter "Pl.'s Resp.") [146] ¶ 30.) Carroll insists she was in fact willing to provide the names of the employees, but only in a face-to-face meeting with Gonzalez or Roesch, both of whom work primarily New Jersey. (Pl.'s Resp. ¶ 30.) She also claims, without any evidence, that Walter Roesch was in Chicago and was aware of the threats, but never met with her. (Pl.'s Add'l Facts ¶ 26.) Carroll also claims that Jeanne Gonzalez and Bill Bubb, a Merrill Lynch attorney, promised to fly to Chicago for this face-to-face meeting, but never fulfilled that promise.*fn3

(Id. ¶ 25.) In any case, Liz Creek and another new supervisor, Jim Halm, held meetings with their staffs and warned that Merrill Lynch would not tolerate harassment. (Defs.' 56.1 ¶ 32.)

On October 21, 2005, Carroll complained to her new immediate supervisor, Karen Klatt, that people on the eleventh floor were not answering her phone calls. (Defs.' 56.1 ¶ 41.) Liz Creek investigated this complaint, and the worker she interviewed assured her that he was in fact picking up all incoming calls. (10/22/2005 E-mail from Liz Creek to Walter Roesch, Ex. 9 to Pl.'s 56.1.)

At some point during this same time period, Carroll asked Jim Kelliher about his job duties. (Defs.' 56.1 ¶ 45.) When Kelliher explained that he supervised trading floor activities and trade checkers, Carroll concluded that Kelliher had assumed the responsibilities she had under Hren. (Id.¶ 46.) In response, as the court has previously described at length, see Carroll, 2011 WL 1838563, at *6-7, Carroll called Jim Kelliher at home on Thanksgiving evening, November 24, 2005. She later admitted she was "all riled up" and "angry" (Carroll Dep. 175:7-13), and that she "just f---ing snapped." (Id. 200:15-201:12.) When Patricia Kelliher, Jim's wife, overheard Carroll's agitated voice on the phone, she felt threatened, and, anticipating a report to the police, recorded a portion of the call on the family's home answering machine. (Defs.' 56.1 ¶¶ 50, 51.) Jim Kelliher later advised his ...


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