United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. BUCKLO, District Judge.
October of 2009, plaintiff Delia Saboya lost her job in the
sales department of the commercial printing outfit Segerdahl
Graphics, after her yearly sales-which had been among the
company's highest from 2004 to 2006-dropped markedly in
2007 and continued to decline thereafter. Plaintiff filed
this lawsuit claiming that defendant fired her not because of
her poor performance but because of her sex, and because she
complained to defendant's human resources manager about
sexual harassment at work. She asserted claims for
discrimination, retaliation, and harassment pursuant to Title
VII, 42 U.S.C. Â§ 2000e.
moved for summary judgment on all of plaintiff's claims,
and on March 27, 2015, I granted the motion with respect to
the harassment and retaliation claims, but I denied it
without prejudice with respect to the claim of discriminatory
termination. See Mem. Op. and Order of 3/27/15, DN
63. I concluded that plaintiff had come forward with prima
facie evidence that she was meeting her employer's
legitimate expectations, and that although she was ostensibly
terminated for "low sales, " three male
employees-Terry McLaughlin, Steve Peshek, and Milt
Sousanis-whose sales were lower than hers were not
terminated. Id. at 22. See also Pl.'s
L.R. 56.1 Stmt. Â¶ 130. Defendant had argued that none of
these individuals was similarly situated to plaintiff, and it
produced some evidence to show that plaintiff's
termination was based not on her low sales volume per se
(which, indeed, was not lower than her putative
comparators'), but rather on the significant decline in
her sales over time, and the fact that despite successive
reductions in her compensation, the "draw" she
received against anticipated commissions had consistently
outpaced the commissions she actually earned. Because the
record did not allow me to examine whether plaintiff's
putative comparators had likewise been compensated in excess
of their commissions, I ordered defendant to supplement the
record so that I could ascertain "whether
defendant's stated reasons for plaintiff's
termination negate the presumption of discrimination raised
by the prima facie case and shift the burden back to
plaintiff to show that these reasons were pretextual."
DN 63 at 23. I further advised plaintiff that to the extent
she disputed defendant's evidence supporting its
calculations of her compensation or commissions, she must
produce competent evidence to support some alternative
calculation. Id. at n. 11.
parties have now filed their additional submissions. For the
reasons that follow, I conclude based on the totality of the
record that plaintiff's evidence is insufficient as a
matter of law for her to prevail on her discrimination claim.
determine whether summary judgment is appropriate, I must
examine the record in the light most favorable to plaintiff,
resolve all evidentiary conflicts in her favor, and grant her
all reasonable inferences the record permits. Liu v. Cook
County, ___ F.3d ___, 2016 WL 1019324, at *1 (7th Cir.
2016). Because my previous summary judgment decision recited
the facts of the case in significant detail and considered
them under the same legal standard as applies here, I will
not narrate the facts exhaustively again. Instead, I will
assume familiarity with my previous decision and will focus
here on the evidence bearing specifically on plaintiff's
claim of discriminatory termination.
hired plaintiff into its sales department in 2003 on the
understanding that she would bring her preexisting sales
accounts-more than two million dollars in business-with her.
Saboya Dep. at 14:24-15:1, Pl's SJ Resp., Exh. 1, DN
37-2. Plaintiff's job duties included, in addition to
sales, managing and training other sales employees on point
of purchase ("POP") sales, a new division plaintiff
would launch and develop for defendant. Id. at
15:5-12; Reimers Dep., at 75:6-15, Pl.'s SJ Resp., Exh.
12, DN 46.
did bring her accounts to defendant, and she continued to
exceed two million dollars in annual sales, while also
developing defendant's POP division, until 2006.
Throughout this time, and until the end of 2007, plaintiff
was paid a salary of $300, 000 annually, plus commissions.
Saboya Dep. at 25:21-26:2. Effective January 1, 2008,
however, her compensation was changed to commission only, and
she was paid an annual draw of $120, 000 against commissions
for sales she generated. Pl.'s SJ Resp., Exh. 27. Her
draw was later reduced a second time to $100, 000 on February
declaration accompanying defendant's supplemental L.R.
56.1 statements, defendant's comptroller, Ron Richford,
states that according to defendant's records,
plaintiff's annual sales dropped from over $2 million in
2006 to approximately $1.4 million in 2007, remained at
around $1.4 million in 2008,  then declined again to
around $500, 000 by her termination in October of 2009.
Although plaintiff articulates numerous and lengthy
objections to Richford's testimony and to defendant's
documentary evidence, she does not dispute that her sales
took a sharp downward turn in 2007, nor does she claim (or
offer affirmative evidence to suggest) that she was
compensated in any other amount, or received commissions in
any other amount, than defendant asserts. As I noted in my
previous summary judgment decision, plaintiff attributes the
decline in her sales to defendant's mishandling of print
jobs performed for two of her customers, IDL and Media on the
Run, which she claims caused her to lose these accounts.
See DN 63 at 3-4; Pl.'s L.R. 56.1 Stmt. Â¶ 118
(plaintiff lost her "steady work" from IDL and
Media on the Run based upon "manufacturing errors"
and performance problems). See also Saboya Dep. at
76:9-79:2 (attributing her 2009 draw reduction to performance
problems on jobs for customers Value City, Niven, Bish, and
HALO in the '04-'05 timeframe).
to defendant, plaintiff's sales results never justified
her compensation. See Def.'s L.R. 56.1 Stmt. Â¶
12. Defendant acknowledges, however, that because of
plaintiff's role in starting up the new POP division, it
would have been "detrimental" to compensate her on
a draw-against-commissions basis "from that startup
point." Pl.'s L.R. 56.1 Stmt. at Â¶ 91 and Exh. 12,
Reimers Dep. at 75:11-15. Plaintiff's job duties did not
change when her compensation structure was changed to
commission-only in January of 2008. Pl.'s L.R. 56.1 Stmt.
Â¶ 116. Her sales, however, continued to fall.
of defendant's witnesses testified that plaintiff's
unsatisfactory sales were a frequent topic at weekly and
monthly management meetings. These meetings were generally
attended by defendant's president, Rick Joutras, and
other senior managers including Hans Kollinger, Gary Gardner,
Paul White, Jeffrey Reimers, and Terry McLaughlin. Joutras
testified that concerns about plaintiff's sales were
discussed as early as "in the second year of her being
with the company, " and he stated that she would have
been terminated before October of 2009 had he not prevented
her termination because of her personal circumstances.
Joutras Dep. at 134:12-136:7, 144:12-19, Pl.'s SJ Resp.,
Exh. 10. Joutras explained that at some point before
[E]verybody in the room came to the agreement that we were in
such a deficit, that we were so under water with this
salesperson, that it was time to let her go, I said no. And I
said no because she has cancer, she just had a double
mastectomy, she's got - she's a single mother, and
she's raising a kid. I said give it time.
Id. at 144:12-19, Pl.'s SJ Resp., Exh. 10.
and Reimers confirmed that defendant's weekly and monthly
management meetings included discussions about the sales
results of individual sales representatives and "whether
or not their commissions [were] sufficient to cover their
salary or draw, " Gardner Dep. at 67:4-6., Def.'s
L.R. 56.1 Stmt., Exh. 5, DN 26-5; see also Reimers
Aff. at Â¶ 8, Exh. 54 to Reimers Dep., Def.'s L.R. 56.1
Stmt., Exh. 7, DN 26-7, and Gardner testified that plaintiff
"was discussed at most meetings because she was short of
her draw during the entire time she was there." Gardner
Dep. at 117:14-16. Plaintiff acknowledges that her sales
declined over the course of her employment, and she concedes
that the sales and commissions reports attached to the
Richford Declaration facially reflect her dropping sales. She
does not dispute that these reports are the business records
defendant's managers used to evaluate its
salespeople's results at their monthly and ...