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Clay v. National Railroad Passenger Corp.

United States District Court, N.D. Illinois, Eastern Division

January 8, 2017



          MATTHEW F. KENNELLY, District Judge.

         Jacqueline Clay filed a seven-count complaint against National Railroad Passenger Corporation (Amtrak) and three Amtrak managers, Denyse Nelson-Burney, Keren Rabin, and Donna Peterkin, alleging that her employment with Amtrak was terminated and she was otherwise discriminated against on improper grounds. Amtrak denies these allegations and now moves for summary judgment on all of Clay's claims.


         Clay is a former Amtrak employee who was based at Amtrak's office in Chicago. Clay began working at Amtrak in 2000 as an equal employment opportunity (EEO) manager in Amtrak's dispute resolution office (DRO). She was responsible for addressing passenger complaints and internal complaints of discrimination. During Clay's tenure at Amtrak, she worked under three different EEO directors: Thomas Campbell from 2000-2012, Lisa Coleman from 2012 to mid-2013, and defendant Donna Peterkin from late 2013 up until Clay's termination in 2014. Throughout Clay's tenure at Amtrak, her direct supervisor would report to the Department's Manager-a position defendant Denyse Nelson-Burney held from 2001 to 2015. Defendant Keren Rabin served as senior associate general counsel in the EEO department from 2012 to 2014.

         In 2011, Amtrak dissolved its dispute resolution office. Some of the office's responsibilities were transferred to the EEO department, resulting in Amtrak abolishing the position Clay held in the DRO. Amtrak informed the former DRO EEO managers that they could apply for the position of EEO officer in the EEO department. Clay did so, and, at the age of 50, she was rehired by Nelson-Burney and Campbell as an EEO officer.

         As an EEO officer, Clay continued to work under the direct supervision of Campbell, who continued to report to Nelson-Burney. Clay's duties as an EEO officer did not change substantially from her position in the DRO. She was tasked with addressing internal complaints under the supervision of Campbell and with writing position statements on behalf of Amtrak to the Equal Employment Opportunity Commission under the supervision of Nelson-Burney. Campbell explained that these "were different reports and [had] different standards, " describing the EEOC position statements as complex and having standards that were "a lot more stringent than internal complaints and passenger complaints." Pl.'s Resp., Ex. 7 (Campbell Dep.) at 98:18-99:22.

         In both of her positions, Clay consistently received "meets expectations" ratings in her annual performance reviews from 2000 to 2012. Defs.' Mot. for Summ. J., Exs. 2, 3. For example, in Clay's 2011 evaluation, Campbell wrote that Clay had "good analytical skills" and "a good ability to synthesize complex and diverse information." Defs. Mot. for Summ. J., Ex. 2 at 1-2. He said, however, that although Clay's "research skills generally enable[d] her to collect relevant data, " sometimes she did not "gather all the information necessary to produce a complete picture." Id. at 2. Nonetheless, Campbell wrote that Clay "made a tremendous contribution to the success of the EEO Department." Id. at 11. Similarly, in his 2012 review of Clay, Campbell wrote that Clay was a "valuable member of the EEO Compliance Unit." Defs.' Mot. for Summ. J., Ex. 3 at 2. He also stated, however, that "Clay need[ed] to take her writing skills to the next level." Id. (Campbell said this line was inserted by Nelson-Burney and that he did not agree with the statement). Campbell Dep. 64:4-65:20.

         During Clay's tenure at Amtrak, Amtrak and the EEO department experienced several changes. First, Amtrak faced financial difficulties. A 2010 report by the Office of Inspector General criticized Amtrak's five-year plan for failing to include a section on "Amtrak's strategy for managing its aging workforce." Pl.'s Resp., Ex. 29B at 8. Amtrak's annual report to Congress for 2012 stated that its "current Financial Plan indicates that there are risks to Amtrak's financial stability due to factors such as employee health care costs and volatile fuel prices" and that its "projections for operating losses increase . . . mainly due to growing expenditures on salaries, wages, and benefits." Pl.'s Resp., Ex. 29 at 3 ¶ 1, 4 ¶ 1. And in 2013, Amtrak's president stated that "[t]hrough February of [fiscal year 2014], Amtrak's total payroll (including all benefits and taxes) is 93.6% of Amtrak's ticket revenue. The company cannot sustain this level of payroll or overtime going forward . . . ." Pl.'s Resp., Ex. 25.

         In the EEO department, there was a concerted effort to increase the quality of its work product and to reduce its costs. On September 25, 2013, Nelson-Burney distributed the EEO compliance unit strategic plan, which stated that Amtrak was "moving towards a competency-based performance system" and set a department goal of "increasing the quality of position statements." Defs.' Mot. for Summ. J., Ex. 40-F at 4. She explained that the transition may be difficult, because "every aspect of [the EEO officers'] duties will be inspected, possibly recalibrated and measured." Id. A month later, Nelson-Burney announced a new procedure in annual performance reviews called a "calibration, " "where department heads [would] meet to look at the suggested [annual] ratings and have discussions to make sure the ratings [were] fair, biases [were] controlled and employees [were] rated against each other (taking into account the size and difficulty of projects, barriers to success etc.)." Pl.'s Resp., Ex. 5. She cautioned that EEO officers "should be aware that [they] can meet all [their] goals but receive a poor rating if [they] do not adhere to Amtrak's values." Id. She also informed employees that their "preliminary rating can change depending on the conversations in the Calibration meetings." Id. The EEO officers who received "does not meet expectation" ratings would be placed on a performance improvement plan. Pl.'s Ex. 9 (Rabin Dep.) at 106:5-16.

         Following the EEO department's new initiative, Clay's ratings began to decline. On October 23, 2013, Coleman sent Nelson-Burney an e-mail with her preliminary evaluations of all EEO officers, including a "meets expectations" rating for Clay. Defs.' Mot. for Summ. J., Ex. 39-F. Under the "con" section of her evaluation of Clay, Coleman wrote that Clay "continues to be inconsistent in her writing proficiency . . . . sometimes does not exhibit a clear understanding of developments in the law . . . [and is] tardy in submitting assignments." Id. On October 29, 2013, a calibration session involving Clay was held with Amtrak's managing deputy general counsel William Herrmann, human capital business partner Juanita Thorne, Nelson-Burney, and Coleman. Coleman testified that "when we went in [the calibration session, ] [Clay] met expectations. When we left, she didn't meet expectations." Pl.'s Resp., Ex. 8 (Coleman Dep.) at 251:1-9. Indeed, Clay's final evaluation stated that she did not meet expectations overall, despite the fact that she met expectations in eight of the nine categories listed in the performance evaluation form. The one category in which Clay did not meet expectations was writing. The final evaluation stated that Clay's "writing skills continue to fall below appropriate standards in composition, organization and sophistication" and that her "position papers sometimes require significant revision." Defs.' Mot. for Summ. J., Ex. 33 at 1.

         On November 29, 2013, Nelson-Burney made the decision to place Clay on a performance improvement plan (PIP), citing the following as areas of concern: "Inadequate, incomplete and unsatisfactory investigative reports and position statements" and "[m]issed deadlines without adequate reason." Defs.' Mot. for Summ. J., Ex. 11 at 1. Coleman testified that she disagreed with the decision to place Clay on a PIP and told Nelson-Burney that she did not agree that "people who had good performance evaluations for years should be on a PIP without having some previous . . . knowledge that their work was [in]sufficient." Coleman Dep. at 241:24-242:7. Coleman also stated that she had "no reason to think that there was a performance issue" regarding Clay's work product. Id. at 242:1-7. Likewise, Clay disagreed with the decision to place her on a PIP. She wrote in a rebuttal that she felt that her "rating [was] inappropriate, " and she asked for revised performance rating. Pl.'s Resp., Ex. 55 at 2. She wrote that she had "shown [her] commitment to [the EEO department] by adjusting [her] schedule and even participating in a mandatory conference call while on approved FMLA" leave. Id. Nonetheless, Clay remained on a PIP.

         Clay's PIP stated: "Improvement in your performance must begin immediately . . . . Failure to demonstrate immediate and sustained improvement . . . will result in further corrective or disciplinary action, up to and including termination prior to 90 days." Defs.' Mot. for Summ. J., Ex. 11 at 2. Nelson-Burney also wrote: "In conjunction with the above PIP, I want to provide you an opportunity to improve your performance and I am committed to working closely with you. Therefore, we will meet on a biweekly basis to discuss your progress on meeting acceptable performance standards and to provide you with feedback." Id. On March 4, 2014, Clay's progress was assessed. Management concluded that although Clay improved in critical areas such as writing, she still was not meeting expectations. In deciding whether to take "corrective action" or extend the PIP, Amtrak senior associate general counsel Rabin determined to place Clay on an extended three-month PIP. Rabin wrote that she wanted to give Clay "enough time to demonstrate sufficient improvement." Defs.' Mot. for Summ. J., Ex. 41-K.

         The EEO department also made changes in response to Amtrak's financial concerns. Nelson-Burney commented that Amtrak was making a "switch to running [the company] more like a business instead of like the government . . . ." Pl.'s Resp., Ex. 12 (Nelson-Burney Dep.) at 118:18-119:4. She elaborated that "Amtrak had a reputation of lax performance standards. And, frankly, the longer you sat in the seat you just got to sit there for thirty years. And so [Amtrak] wanted to change [to be] able to retain and attract high level candidates and just keep really good people around and increase the levels of performance . . . ." Id. at 119:9-17.

         Nelson-Burney sent the EEO department an e-mail detailing the department's goals for fiscal year 2014. She described a new policy that she said was aimed at mitigating Amtrak's legal exposure. Under this policy, the EEO department was tasked with creating strategies that would increase "the number of complainants utilizing the [Amtrak] internal process before moving on to a federal/state agency." Pl.'s Resp., Ex. 53 at 2. Clay testified that Nelson-Burney asked her and other EEO officers to "mingle with the employees" who filed external complaints in order to "find out what's going on, " and that maybe through their interactions the EEO officers could "head off any complaints." Pl.'s Resp., Ex. 4 (Clay Dep.) at 66:4-13. Clay and two other EEO officers, Elias Munoz and Erick Mitchell, protested that, in their view, the new policy was illegal. Clay told EEO management that she "didn't agree" with the policy because it "wasn't for [EEO officers] to try to persuade [employees] to come internally [because it] was [the individual employee's] personal decision." Id. at 109:22-110:1. Nonetheless, Clay complied with the policy and engaged with employees when she saw them outside of the office. Id. at 115:3-10.

         Another goal that Nelson-Burney established to reduce Amtrak's costs was to create an "EEO Compliance webinar series." Defs.' Mot. for Summ. J., Ex. 35 at 2. EEO management subsequently arranged a webinar on drafting position statements. Clay could not log into the webinar because EEO management only paid for one login for one Amtrak location instead of all of its locations, including Chicago where Clay was based. In response, management decided to download the webinar slides and distribute them to the off-site EEO officers because otherwise Amtrak "would have to pay an additional $225.00 per additional site." Rabin Dep., 84:1-14. Management then told the EEO officers to put their phones on mute so that the webinar's producers would now know that multiple officers were listening despite the single login purchase. Clay testified that she complained to coworkers because she believed management's directions violated copyright laws. Clay participated in the webinar nonetheless.

         Also in 2014, the EEO department hired Peterkin for the position of director of EEO compliance. Peterkin became Clay's direct supervisor. Shortly after Peterkin joined the department, Clay's time management became an area of concern. On March 17, 2014, Peterkin asked Clay what her work hours and leave plans were. Defs.' Mot. for Summ. J., Ex. 40-A. Clay responded that beginning in 2010, Amtrak had approved Clay's annual requests for intermittent leave under the Family and Medical Leave Act (FMLA) to care for her husband, with her latest approval extending to the beginning of 2015. Id. A month later, Peterkin sent an e-mail to the EEO officers in which he stated that if an officer intended to use leave, the officer must provide her with proper notice in advance and that if an officer takes leave that "[was] not approved ahead of time, [the officer] may be charged with leave without pay." Defs.' Mot. for Summ. J., Ex. 40-B.

         After several complaints that Clay was missing deadlines, Peterkin gave Clay a verbal warning, documented in a letter dated May 1, 2014. Peterkin stated: "Your conduct of missing deadlines without speaking up or seeking an extension is not an isolated matter . . . . Missing deadlines is unacceptable and places the company at risk . . . . I want to provide you with an opportunity to improve your performance and I am committed to working closely with you." Defs.' Mot. for Summ. J., Ex. 26.

         In Clay's 2014 performance review, Peterkin highlighted Clay's time management issues in six of the ten areas of review. Under the heading investigative skills, Peterkin wrote: "[Y]ou do not timely investigate cases and your productivity in terms of completing investigations is low." Defs.' Mot. for Summ. J., Ex. 40-K at 6. Under case management skills, Peterkin wrote: "While you routinely update your case status, you still manage to miss deadliness and offer no explanation in doing so." Id. Under writing skills, Peterkin wrote, "It is believed that you are making an effort to improve your investigation reports. However, your reports are still in need of significant improvement. Additionally, when you are given feedback, you take a significant amount of time to revise your reports rendering them untimely." Id. Under verbal skills, Peterkin wrote: "Your verbal skills are good. However, there are concerns with how you respond in weekly case status meetings when asked about delays in your investigations." Id. Under good judgment, Peterkin wrote: "You generally display good judgment, except when it comes to adhering to deadlines. You could further develop by closely monitoring your deadlines, timely identifying barriers to completing your investigations, and seeking timely extensions." Id. Finally, under time management, Peterkin wrote: "Missing deadlines for no known reason and then failing to provide a reasonable explanation is unacceptable. You were counseled in this area and it is expected that you will improve." Id.

         When Clay was asked during her deposition whether "there [was] ever a point [when she] told [Peterkin] or anybody else that [she was] having trouble getting work done because of the responsibilities [she] had caring for [her] husband, " she testified that “[she] ...

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