Opinion
Case No. 00 C 4933.
March 28, 2002.
ORDER
Plaintiff Sherri Seay has sued her former employer, BDO Seidman, LLP ("BDO") for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as well as 42 U.S.C. § 1981. BDO has filed a motion for summary judgment. Fed.R.Civ.P. 56. For the following reasons, the court grants BDO's motion.
Discussion
Seay's complaint contains two counts of Title VII discrimination against BDO. In Count I, Seay alleges that BDO terminated her because she was pregnant. In Count II, she claims that BDO terminated her because she is black, violating both Title VII and 42 U.S.C. § 1981.
To prevail on her discrimination claims, Seay may rely on either direct proof of discriminatory intent or the indirect, burden-shifting method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Seay admits that she does not have sufficient direct evidence; however, she argues that she has enough evidence under McDonnell Douglas. Under the indirect method, Seay must establish a prima facie case of discriminatory discharge, which consists of four elements: "(1) she was within a protected class; (2) her performance met her employer's legitimate expectations; (3) she was terminated; and (4) others not in her protected class received more favorable treatment." EEOC v. Our Lady of Resurrection, 77 F.3d 145, 148 (7th Cir. 1996). If Seay establishes a prima facie case, then the burden of production shifts to BDO, who must articulate a legitimate, nondiscriminatory reason for its decision. Id. at 149. If BDO meets its burden, Seay must then provide evidence establishing that BDO's proffered reasons were "merely pretextual." Id.
The parties agree that Seay has met the first and third elements of her prima facie case because Seay was both African-American and pregnant at the time of the alleged violations, and because she was terminated by BDO. However, BDO contends that Seay has failed to establish the other two elements of her prima facie case: that her performance met BDO's legitimate expectations, and that similarly situated employees received more favorable treatment.
In addition, BDO argues that even if Seay establishes her prima facie case, she fails to establish that BDO's legitimate reason for her termination was pretextual. The court will discuss each form of alleged discrimination in turn.
I. Count I: Gender Discrimination
In Count I, Seay alleges that BDO discriminated against her because of her gender by: (1) criticizing Seay's decision to become a single mother; (2) having a leave-of-absence policy that required employees to be employed for one year before qualifying for a leave; and (3) terminating her because she was pregnant. At the outset, the court can quickly dispose of the first two of these claims. First, in Seay's deposition, she testified that nobody at BDO, including her supervisors Warren Holmes and Julie Harter, ever made any negative comments about her decision to become a single mother. Furthermore, she testified that she could not recall ever hearing that anyone at BDO criticized her. She did testify that two of her coworkers told her that they believed Holmes did not approve of Seay's pregnancy. However, she also testified that neither coworker told her the basis for their belief. Any evidence of what these coworkers allegedly said is inadmissible hearsay and insufficient to establish a prima facie case. This conclusion is bolstered by the fact that Seay provides no argument in support of this claim in her response brief to BDO's motion for summary judgment. Therefore, the court grants BDO's motion with respect to that claim.
Second, Seay fails to establish that BDO's leave of absence policy was discriminatory. Her complaint alleges that the policy is discriminatory because it requires employees to be employed for one year before qualifying for a leave of absence. However, Seay testified that she was actually paid disability benefits for her pregnancy even though she had been employed at BDO for less than a year. In addition, when asked if there was any way in which she believed that the company's leave of absence policy discriminated against her, Seay responded, "No." (Seay Dep., Def.'s Ex. A at 232:7.) Furthermore, Seay provides no argument in her response brief to support this claim. Therefore, BDO's motion is granted with respect to this claim as well.
Seay's remaining claim in Count I is that she was fired because she was pregnant. With respect to this claim, for reasons explained below, Seay fails to establish that she met BDO's legitimate expectations, that similarly situated employees outside the protected class were treated more favorably, and that BDO's legitimate reason for her termination was pretextual.
A. Legitimate Expectations
BDO has offered several pieces of evidence indicating that Seay did not meet her employer's legitimate expectations. In August 1998 Seay was hired as an executive assistant to work in BDO's Chicago National Office. She had interviewed with Harter, BDO's National Director of Human Resources, who is white. Seay was pregnant at the time of the interview, although she did not tell Harter. At the interview, Harter explained that she was looking for someone with substantial organizational skills who was detail-oriented and could manage projects independently. Seay stated that she was "extremely organized" and that she could manage projects. (Seay Dep., Def.'s Ex. A at 31:16.) Seay began work on September 2, 1998 as an executive assistant to both Harter and Holmes, Executive Director of Human Resources, who is also white. She announced her pregnancy in December 1998. On February 3, 1999, Holmes informed her that he was terminating her employment.
BDO claims that soon after Seay started work, her performance problems were evident. Specifically, BDO claims that: (1) despite explicit requests by Harter, Seay failed to take notes during weekly meetings about the company's new Performance Development System ("PDS"); (2) Seay failed to comply, for nearly a month, with Harter's request to obtain an application for BDO to be listed in the "100 Best Companies to Work For" survey; (3) Seay failed to complete job profile forms by Harter's requested deadline; (4) Seay failed to create a monthly review process for financial reports by Harter's requested deadline; (5) Seay failed to accurately proofread and correct the company's international handbook; (6) during the partner admission process at BDO, Seay sent information to candidates who had already been eliminated, so that these candidates were led to believe that they were still being considered; (7) Seay also sent confidential e-mail messages to all partner candidates so that everyone could see who was being considered; and (8) after failing to make necessary photocopies of materials for the partner admission binders, Seay declined to stay late and help, which required Holmes to work all night to complete them. BDO has also pointed to evidence showing that Seay's supervisors, Holmes and Harter, were dissatisfied with Seay's performance.
Seay argues that her deposition testimony creates an issue of fact regarding whether her performance was satisfactory. However, in her response brief to BDO's motion, she fails to articulate what testimony that is. It is not the task of the district court "to scour the record in search of a genuine issue of triable fact. We rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995). Nevertheless, a review of Seay's fact statement reveals what she believes to be genuine disputes.
Seay's deposition testimony is dotted with excuses regarding some of BDO's complaints about her performance. For example, Seay testified that during the month that it took her to obtain the information regarding the "100 Best Companies" application, she "[p]layed phone tag" with the contact person who had the pertinent information. (Seay Dep., Def.'s Ex. A at 58:17.) She also testified that she did not take notes at the PDS meetings because she did not understand what she was supposed to be writing. With respect to BDO's complaint that Seay sent credit forms to partnership candidates who had already been eliminated from the admissions process, Seay testified that she merely used the candidate list that Holmes had given her, not an outdated list.
Generally, a plaintiff's self-serving, conclusory statements that she met her employer's expectations are not enough to create a triable issue of fact. See, e.g., Mills v. First Fed. Sav. Loan Ass'n of Belvidere, 83 F.3d 833, 843 (7th Cir. 1996) (plaintiff's assertions that she completed her work in an acceptable manner and that she never received any formal warnings of poor job performance were insufficient to contradict the detailed evidence of her employer's displeasure with her performance); Johnson v. G.A.T.X. Logistics, Inc., No. 00 C 3265, 2001 WL 1568883, at *2 (N.D.Ill. Dec. 6, 2001) (holding that plaintiff's self-serving statements claiming she met her employer's legitimate expectations could not by themselves establish that her performance met those expectations).
Regardless, Seay in fact admits to many of BDO's complaints about her performance. First, BDO claims that Seay missed deadlines on both the job profile forms project and the monthly review process project. Seay responds that she does not remember if the projects were completed. Therefore, BDO's factual assertion must be deemed undisputed. In addition, Seay admits that the project in which she was to prepare several binders for the partner admission process required a significant amount of photocopying. She also admits that on the day before the deadline, around February 1, 1999, Holmes discovered that Seay had not done any of the photocopying and had not begun to assemble the contents of the binders correctly. When Holmes asked Seay to stay late with him to assist him with photocopying and assembling the binders, Seay admits that she declined because she had to go to school. These undisputed facts alone are enough to show that Seay was not performing satisfactorily.
Seay offers two more arguments as to why she should withstand summary judgment on this element. First, Seay argues that Holmes expected her to perform at the level of a senior associate, a position that she was not hired to fill. In other words, BDO's performance expectations were too high. However, the Seventh Circuit has observed that "[t]he employee doesn't get to write his own job description. An employer can set whatever performance standards he wants, provided they are not a mask for discrimination on forbidden grounds such as race or age." Palucki v. Sears, Roebuck Co., 879 F.2d 1568, 1571 (7th Cir. 1989). "An employer can, if he or she chooses to do so, set unreasonable standards and fire employees who do not meet them." Sampson v. Fed. Express Corp., 1996 WL 568792, at *3 (N.D.Ill. Oct. 2, 1996); see also Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1090 (7th Cir. 2000) ("[T]his court's inquiry into the issue of legitimate expectations is more aptly characterized as `simply bona fide expectations, for it is no business of a court in a discrimination case to decide whether an employer demands "too much" of his workers.'") (quoting Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir. 1997)). Without evidence linking BDO's alleged high expectations to discriminatory intent, such as evidence that similarly-situated others were subject to lesser demands, Seay's argument fails.
Second, Seay contends that Holmes and Harter never told her that they were dissatisfied with her job performance. However, BDO claims that on October 22, 1998, Harter met with Seay specifically because of her poor performance and gave her specific performance expectations. Seay denies that Harter expressed any dissatisfaction with her performance, but admits that this meeting took place after she failed to take notes at the PDS meetings and after her delay in obtaining the "100 Best Companies" information. She also admits that she later wrote Harter an e-mail message thanking her for the "feedback on my performance." (Seay Dep., Def.'s Ex. A at 99:22-23.) Seay claims that she does not remember why she wrote that sentence. The undisputed evidence tends to indicate that Harter did, in fact, express her dissatisfaction with Seay.
Furthermore, even if Seay's supervisors did not tell her that they were dissatisfied, this does not indicate that Seay, in fact, performed her job satisfactorily. An employer "can be as arbitrary as he wants," so long as he does not treat a member of a protected class more harshly than others. Palucki, 879 F.2d at 1571. Without more evidence, Seay has failed to establish this element of her prima facie case.
B. Similarly Situated Employees
Seay has failed to establish that similarly situated employees outside of the protected class were treated more favorably than she was. To establish this element, Seay must point to employees who "have engaged in materially similar conduct without mitigating circumstances that explain the difference in their treatment." Williams v. Gen. Mills, 926 F. Supp. 1367, 1377-78 (N.D.Ill. 1996) (citing Perkins v. Brigham Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996)). The court in Perkins articulated a test for this element: whether a "prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated." 78 F.3d at 751 (internal quotation marks omitted). Seay has failed to point to any similarly situated employees who were not pregnant. In her deposition testimony, Seay mentions that Holmes's other executive assistant, Jim Berryman, "came and went as he pleased" while Seay was written up for being late. (Seay Dep., Def.'s Ex. A at 237:10.) However, she fails to show that Berryman was a similarly situated employee. She admits that she does not know what his job duties are, or whether his job duties took him away from his desk. Furthermore, BDO does not cite tardiness as a reason for Seay's termination. Otherwise, Seay fails to single out any other BDO employee outside her protected class for comparison in Count I.
C. Pretext
Even if Seay has succeeded in establishing a prima facie case, BDO has successfully articulated a legitimate, nondiscriminatory reason for her termination. BDO's burden is "only one of production, as the `ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the [employee] remains at all times with the [employee].'" Williams v. Williams Elecs., Inc., 856 F.2d 920, 923 (7th Cir. 1988) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). BDO must produce "evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." Sample v. Aldi, Inc., 61 F.3d 544, 547 (7th Cir. 1995) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993)).
Through deposition testimony and written affidavits, BDO claims that on about February 2 or 3, 1999, Holmes told Harter about Seay's poor performance on the partner admission binder project and both agreed that Seay should be terminated. On February 3, 1999, Holmes met with Seay and told her that her performance was not satisfactory and that he was terminating her employment. BDO claims that Seay was fired because she did not perform her duties to her supervisors' satisfaction, pointing to the list of problems discussed above. This satisfies BDO's burden. Thus, the burden now shifts to Seay to "prove by a preponderance of the evidence that the legitimate reasons offered by [BDO] were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253 (quoting McDonnell Douglas, 411 U.S. at 804).
"A pretext may be demonstrated `either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Williams Elecs., 856 F.2d at 923 (quoting Burdine, 450 U.S. at 256). "In the case of either method of proof the evidence must, in the final analysis, demonstrate that race was a determining factor, in the sense that [the employee] would not have been [laid off] `but for' [the] employer's motive to discriminate against [the employee] because of [race]." Williams Elecs., 856 F.2d at 923 (internal quotation marks omitted). Seay seems to rely on both methods.
First, as direct proof of discrimination, Seay argues that at the meeting at which Holmes told Seay that she was fired, "Holmes seemed to take great delight in that Seay would now be a single mother without a job." (Pl.'s Resp. at 4.) Specifically, Seay testified at her deposition that at the meeting, Holmes said, "So what are you going to do now because of your condition." (Seay Dep., Def.'s Ex. A at 227:20-21.) She testified that he repeated this several times. This comment, without more evidence, does not create a genuine dispute. This is so especially in light of the fact that at the same meeting, Seay admits that Holmes told her that BDO would defer her termination date until her doctor released her to return to work so she would remain covered by BDO's insurance and eligible for short-term disability benefits. Thus, Holmes's comments are not evidence that he discriminated against her, but rather suggest that he was genuinely interested in her welfare.
Seay also testified that she felt that Holmes had discriminated against her based on "[h]is tone, his behavior," and "his conduct." (Id. at 228:23, 229:1.) However, Seay provides no descriptive details about Holmes's tone, behavior, or conduct. This is not enough to create a genuine dispute regarding whether Holmes decided to terminate Seay because she was pregnant. Cf. Minor v. Ivy Tech State Coll., 174 F.3d 855, 858 (7th Cir. 1999) (plaintiff could not prevent summary judgment on her sexual harassment claim with assertion that her supervisor spoke to her in a "sexy voice"; such "nebulous impressions concerning tone of voice, body language, and other non-verbal, untouching modes of signaling" are insufficient to defeat summary judgment).
Next, Seay attempts to show pretext indirectly with evidence that BDO's reason for her termination is unworthy of credence. She claims that Holmes held her up to a level of performance that was too high, and that nobody ever expressed dissatisfaction with her performance before her termination. For the reasons discussed above, these arguments fail. Seay also points out that she announced that she was pregnant sometime in December 1998, and that she was told that she was fired on February 3, 1999. The timing, Seay suggests, creates a dispute as to whether BDO's proffered reason for her termination was pretextual. However, Seay admits that she had performance problems both before and after her announcement in December. Specifically, BDO points to her failure to take notes at PDS meetings and her delay in obtaining the "100 Best Companies" information, both of which occurred before December 1998. In addition, the job profile form project and the monthly review project, which Seay does not remember completing, were both due before December. Harter's meeting with Seay at which Harter explained Seay's performance expectations was held in October 1998. Seay admits that she did not complete the partner admission binders by the deadline around February 1, 1999. After she declined to stay late and help Holmes finish the project, she was fired one or two days later. If any inference should be made based on the timing of events, it is that Seay's poor performance on the partner binders project was the last straw that convinced her supervisors to terminate her. Thus, her argument about the timing of her termination fails to create a genuine dispute about whether BDO's reason for her termination was pretextual.
Finally, Seay argues that Harter, who made the decision to hire her, must not have agreed with the decision to fire her because she was not present at the termination meeting on February 2, 1999. However, BDO has submitted Harter's affidavit, in which she avers that she in fact agreed with the termination decision. Harter's absence from the meeting, standing alone, fails to create a genuine dispute as to whether Harter agreed with the decision. Seay fails to convince the court that BDO's reason for terminating her is unworthy of credence. BDO's motion for summary judgment is granted with respect to Count I.
II. Count II: Race Discrimination
Seay also has failed to set forth a prima facie case of race discrimination. First, as discussed above, Seay fails to create a dispute regarding whether she met BDO's legitimate expectations. However, even assuming that she satisfies this element, Seay fails to establish that similarly situated non-African American employees were treated more favorably and that BDO's proffered reasons for her termination are pretextual.
Although Seay has brought her race discrimination claim under both Title VII and Section 1981, the analysis under each statute is the same. Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999), cert. denied, 530 U.S. 1204 (2000).
A. Similarly Situated Employees
Seay points to Judy Gula as a white, pregnant executive assistant who was permitted to return to work after her maternity leave. However, Seay otherwise fails to show that Gula "engaged in materially similar conduct without mitigating circumstances that explain the difference in their treatment." Gen. Mills, 926 F. Supp. at 1377-78 (citing Perkins, 78 F.3d at 751). Specifically, other than to say that Gula was an executive assistant, Seay has offered no evidence that Gula and Seay shared the same or similar duties or that Gula had the same performance problems as Seay. See Spath v. Hayes Wheels Int'l-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000) ("It is fundamental that to make a comparison of a discrimination plaintiff's treatment to that of [other] employees, the plaintiff must show that the `comparables' are similarly-situated in all respects.") (internal quotation marks omitted). Seay's general assertion that Gula was similarly situated is insufficient to create a genuine dispute on this element.
Seay also refers to remarks by Office Manager Toni Lawrence that Seay spent too much time in the kitchen and that she ate frequently. Seay claims that Gula told her that Lawrence had not made the same remarks to her when Gula was pregnant. This evidence is inadmissible hearsay. Moreover, such remarks are simply not consequential enough to constitute a material disparity in treatment. Finally, Seay claims that a coworker told her that she was the only employee who had been documented for tardiness, despite the fact that other employees were tardy. Once again, however, this evidence is hearsay.
To the extent Seay is relying on Berryman as a comparable, he has not been shown to be similarly situated, for the reasons set forth above.
B. Pretext
Finally, even assuming that Seay has successfully established a prima facie case of race discrimination, she fails to show that BDO's nondiscriminatory reason for firing her-that she failed to perform satisfactorily-was pretextual. As discussed above, Seay's arguments about Holmes's conduct during the termination meeting, that nobody told her about her poor performance, that BDO's performance expectations were too high, and that Harter was not present at the meeting at which Holmes fired Seay, are insufficient to create a genuine dispute on this issue. In addition, the comments by Lawrence about the amount of time that Seay spent in the kitchen provide no indication that BDO's decision to fire Seay was related to her race. Otherwise, Seay points to absolutely no evidence that either indicates a discriminatory reason for her termination or that suggests that BDO's reason is unworthy of credence. Seay's race discrimination claim in Count II fails.
Conclusion
For the foregoing reasons, defendant BDO's motion for summary judgment is granted.