United States District Court, N.D. Illinois, Eastern Division
ROBERT A. AUSTIN, Plaintiff,
FEDERAL RESERVE BANK OF CHICAGO, Defendant
Robert A Austin, Plaintiff, Pro se, Chicago, IL.
For Federal Reserve Bank of Chicago, Defendant: Nina G. Stillman, LEAD ATTORNEY, Sarah R. Marmor, Virginia Yookyoung Kim, Scharf Banks Marmor LLC, Chicago, IL.
MEMORANDUM OPINION AND ORDER
Rebecca R. Pallmeyer, United States District Judge.
Pro se Plaintiff Robert A. Austin was employed at the Federal Reserve Bank of Chicago as an Assistant Examiner in its supervision and regulatory department from December 8, 2008, until he resigned on May 10, 2013. Austin had disagreements with management, including objections to charitable activities that the Bank encouraged and to certain restrictions imposed on his business travel. He voiced complaints about these matters and ultimately resigned. In this lawsuit, he contends that his former employer violated Title VII of the Civil Rights Act of 1964 (" Title VII") and 42 U.S.C. § 1981 by discriminating against him because of his race and sex and by retaliating against him. Both parties have moved for summary judgment . For the reasons discussed below, the court grants summary judgment to the Federal Reserve Bank.
A. Local Rule 56.1
The facts presented here are based primarily on the Federal Reserve Bank's Local Rule 56.1 statement of material facts. (Def.'s Local Rule 56.1 Stat. of Mat. Facts , hereinafter " Def.'s 56.1.") Local Rule 56.1 requires that a party opposing summary judgment submit " a concise response" to each of the moving party's statements and " in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B). Although warned of the need to comply with the court's rules ( see Notice to Pro Se Litigant Opposing Mot. for Sum. Judg. ), Austin did not submit a Local Rule 56.1 statement of his own and instead responded to just a few of the Federal Reserve Bank's submitted facts in his response to the Bank's summary judgment motion. ( See Pl.'s Resp. to Def.'s Mot. for Sum. Judg. , hereinafter " Pl.'s Resp., " 11-16.) Austin did include a statement titled " Undisputed Facts/Material Facts" in his own motion for summary judgment. ( See Pl.'s Mem. in Supp. of Mot. for Sum. Judg. , hereinafter " Pl.'s Mem., " 9-17.) This section contains 80 unnumbered paragraphs; of those, 59 contain no citations to the record at all. The remaining 21 paragraphs do not adequately direct the court to portions of the record supporting his proposed facts, and Austin does not otherwise attempt to corroborate his statements as required by Local Rule 56.1(a)(3). Austin is pro se, but he held a substantial professional position with the Federal Reserve Bank of Chicago and can be expected to comply with the court's rules. Cf. Greer v. Board of Educ. of City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001) (noting that a pro se plaintiff's failure to comply with Local Rule 56.1 provides sufficient grounds to grant summary judgment to a defendant in an employment discrimination case). The court has, however, reviewed the record in its entirety and will consider Austin's responses to the Federal Reserve Bank's submitted facts where appropriate, along with his deposition testimony. But where the Bank's statements are supported by the record and not challenged with competing evidence, they are deemed admitted.
B. Job Responsibilities
Austin is an African-American male who worked as an Assistant Examiner in the Compliance and Community Reinvestment Act (" CCRA") group of the Supervision and Regulation (" S& R") Department of the Federal Reserve Bank of Chicago from December 8, 2008 until he resigned on May 10, 2013. (Def.'s 56.1 ¶ 3.) As an Assistant Examiner, Austin was required to travel to banks throughout the Seventh Federal District,  conducting examinations of banks to carry out the Federal Reserve Bank's supervisory and regulatory functions. (Id. ¶ 25.) Assistant Examiners are also required to participate in the Examiner Commissioning Program. (Def.'s 56.1 ¶ 4.) The Program includes training courses, training modules, and periodic proficiency exams. (Id.) Assistant Examiners who successfully complete the program's requirements are promoted to the role of Examiner. (Id.)
Austin had several supervisors while employed at the Federal Reserve Bank. When he started in December 2008, he reported to CCRA New Hires Team Leader Joe Davidson; Davidson reported to Assistant Vice President (" AVP") Dave Ward. (Id. ¶ 6.) In May or June 2009, Davidson transferred to a new division, and Austin began reporting to David Kitson, who also reported to Ward. (Def.'s 56.1 ¶ 7.) For a time, Austin reported to various other supervisors not relevant to this case, but by September 2011, Austin was once again supervised by Kitson, who in turn reported to Davidson, who by this time had been promoted to AVP. (Id. ¶ 11.) In December 2012, Davidson was promoted again, this time to Vice President of Consumer Compliance,  and in January 2013, Lisa Cervone became the AVP. Thereafter, from January 2013 until he resigned in May, Austin reported to Kitson, who reported to AVP Cervone, who reported to Vice President of Consumer Compliance Davidson. (Id. ¶ 13.)
Austin testified in his deposition that in early March 2009, Austin met with Davidson and AVPs Ward and Paulette Myrie-Hodge to discuss an issue regarding Austin's overtime pay and Austin's view that he and Davidson " weren't getting along." (Def.'s 56.1 ¶ ¶ 61-62.) During this meeting, Austin made no reference to his race or sex. (Id. ¶ 62.) Austin believes that after this March 2009 meeting, Davidson instructed his subordinates to " increase surveillance" of Austin at work. (Id. ¶ 67.) Austin acknowledges, however, that he never heard Davidson instruct an employee to monitor him or to report when Austin came or left the Bank, and no one ever told Austin such monitoring was taking place. (Id. ¶ 68 (citing Austin Dep. 276:6-10; 277: 10-13).) Austin believes that Davidson " inappropriately used" results obtained from the Examiner Commissioning training courses, which Austin refers to as " psychological testing, " to harass him. (Def.'s 56.1 ¶ 71.) Austin's theory is that Davidson placed him on punctuality counseling to " mentally . . . frustrate me and harass me inside based upon my characteristic trait [identified in the one of the courses]." (Id.) Davidson testified that he was never given information concerning Austin's performance in these courses ( id. ¶ 72), and Austin offers no evidence in support of this theory beyond his suspicion.
D. Work Performance
In 2009, Austin took his first proficiency examination for the Examiner Commissioning Program. The exam required a minimum score of 70 to pass; Austin received a 71. (Id. ¶ 66.) While he acknowledges he has no proof, Austin believes that his first proficiency test (where he scored a 71) reflects racial bias because he heard that there were four different versions of the test and, given his score, Austin thinks he was given the hardest one. (Def.'s 56.1 ¶ 66 (citing Austin Dep. 260:1-264:22).)
During his employment, Austin received two different employment counseling memoranda for violations of Federal Reserve Bank policies. First, on August 3, 2010, he received a memorandum from Kitson and Ward that cited concerns about Austin's punctuality. (Id. ¶ 15.) The memorandum identified several instances when Austin had arrived late for work in the previous few months and announced that Austin would be placed in " punctuality counseling." As part of that counseling, Austin's manager would " begin closely monitoring" Austin's arrival times, and Austin was required to call his manager when he arrived to work. (Punctuality Counseling Memorandum, Ex. 8 [46-4] to Def.'s Mot.) The memorandum warned that if Austin continued to arrive late he would be placed on " punctuality probation." (Id.) Austin satisfied the punctuality counseling's requirements and was released on October 28, 2010. ( See Pl.'s Resp. at 11.)
The following year, on September 6, 2011, Austin received a performance counseling memorandum from Kitson and Davidson. (Def.'s 56.1 ¶ 20.) The memorandum first noted that it was intended to " formally document the initiation of performance counseling requirements as a result of inconsistent performance throughout the examiner commissioning process, specifically the Job Based Knowledge and Implementation and Communication competencies." (Performance Counseling Memorandum, Ex. 12 [46-4] to Def.'s Mot.) The memorandum stated that during the roughly two-month performance counseling period, Austin's work performance would be evaluated to ensure that he was " consistently demonstrating an independent approach to the work at the level of Assistant Examiner; " that he would need to meet with his supervisors in person to update them on his work; and that if his work continued to fall below expectations, he would be placed on probation. (Id.) Austin believes he received this performance counseling memorandum because he is a black male and that Davidson issued the memorandum to harm Austin's reputation. (Def.'s 56.1 ¶ 21.) Austin was released from performance counseling on December 6, 2011. (Id. ¶ 22.)
Austin received feedback on his job performance in the form of annual reviews that were prepared by his team leaders with input from the AVPs. The performance reviews used a five-tier rating system: " Outstanding; " " Commendable; " " Effective; " " Needs Improvement; " and " Did Not Meet Goals." (2009 Performance Review Results, Ex. 4 [46-4] to Def.'s Mot.) In 2009 and 2010, Austin received annual performance ratings of " Effective." (Def.'s 56.1 ¶ ¶ 14, 19.) In Austin received a performance rating of " Needs Improvement." (Id. ¶ 23.) Kitson prepared this evaluation with input from Davidson, who by that time had become AVP. (Id.) In 2011, Austin's performance rating returned to " Effective."  (Def.'s 56.1 ¶ 24; Pl.'s Resp. at 12.)
E. Austin's Concerns with the Federal Reserve Bank's Community Outreach Programs
The Federal Reserve Bank of Chicago coordinates with charitable organizations to provide volunteer opportunities for the Bank's employees. One of the organizations the Bank includes on its list of community outreach opportunities is the Center for Halsted. (January 25, 2013 E-mail Chain, Ex. 35 [46-5] to Def.'s Mot.) According to the Federal Reserve Bank, the Center for Halsted is " dedicated to . . . securing the health and well-being of the Lesbian, Gay, Bisexual, Transgender, and Queer [" LGBT" ] people of Chicagoland." (Def.'s Mem. in Supp. of Mot. for Sum. Judg. , 8.) On January 7, 2013, Austin sent an e-mail to a communications representative in his department to voice his ...