United States District Court, N.D. Illinois, Eastern Division
CORRECTED MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
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.
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
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.
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
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.
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.
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.
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.
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.
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.,
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.
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.
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
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.
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.
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
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] ...