Opinion
No. No. 96 C 7795, No. 97 C 6505
September 5, 2000
MEMORANDUM OPINION AND ORDER
The plaintiff, Lucille Simpson ("Simpson") has filed a four-count Complaint against the Defendant, Rykoff-Sexton ("Rykoff'). The Complaint alleges various violations of Title VII. Count I alleges age and gender discrimination, Count II alleges racial discrimination, Count III alleges retaliation, and Count IV alleges racial harassment. Rykoff has moved for summary judgment on all counts. For the reasons stated below, we deny this motion in part and grant this motion in part.
BACKGROUND
A. Facts Relevant to This Lawsuit
The facts are taken from the parties' statements filed pursuant to Rule 12(m) and 12(n). Simpson is an African American female residing in Bolingbrook, Illinois. Rykoff is a large food-product and service company which was located in Lisle, Illinois at the time of the allegations raised in the instant case. Rykoff hired Simpson in 1992 as a corporate clerk in the Accounts department when she was forty-five years old.
In 1993, Donald Brookhart, the Manager of Treasury Services, wrote a memorandum relating to a disturbance caused by Simpson and placed it in Simpson's personnel file. Simpson complained to the Human Resources department that the write-up was false, and Human Resources told her that the write-up would be removed.
In 1994, Rykoff offered Simpson and one of her co-workers, Bea Rivers, promotions to the position of senior accounts payable clerk. Rykoff offered Rivers, an African American woman over the age of forty who had more seniority than Simpson, a more significant pay increase than it offered Simpson. Simpson demanded that she receive the same increase as Rivers. Rykoff refused to give her this increase and withdrew the promotion offer to Simpson.
In November 1994, Simpson met with John Fahey, the Manager of the Accounts Receivable and Accounts Payable departments. In February 1995, Fahey wrote a memorandum to Simpson recounting that conversation. Fahey informed Simpson that she had been denied the senior accounts payable clerk promotion because she had demanded a bigger salary increase than Rykoff was willing to give. Additionally, Fahey explained that, although Simpson had strong technical skills, she nonetheless was not "management material" because she had a poor attitude and was unable to provide positive direction to other employees. Fahey also stated that he had observed instances of Simpson being insubordinate to her direct supervisor, Evelyn Rigor, an Asian female. Fahey also told Simpson that several people, both past and current employees, had told him that Simpson's behavior was disruptive and sometimes intimidating. Simpson disagrees with Fahey's evaluation of her performance and behavior and asserts that Fahey's memorandum was racially motivated. In support of her position, she has offered a letter from March 1995, signed by five of her co-workers, which states that Simpson was a good worker and not a problem in the office.
In January 1996, the Office of Federal Contract Compliance Programs ("OFCCP") conducted an investigation of the affirmative action program at Rykoff. Simpson provided an interview to the OFCCP representatives. As a result of the investigation, Rykoff entered into a conciliation agreement with the OFCCP. The agreement was in no way related to Simpson's employment with Rykoff.
On February 29, 1996, Simpson was notified by Evelyn Rigor, her direct supervisor, and Jim Couch, Rigor's supervisor, that she was being placed on a formal written counseling review cycle. The issues listed and explained in the memorandum from Rigor and Couch included repeated insubordination and poor communication and interpersonal skills. Under company guidelines, Rykoffs management reserved the right to discipline an employee for any action which was viewed by management as interfering with its ability to run operations smoothly, efficiently, and safely. Simpson was given sixty days to resolve the issues or she would be placed on final written counseling review, which was the final step before discharge. The issues were ultimately resolved, and Simpson was never placed on a final written counseling review.
In March 1996, Jim Couch selected Martin Radman, a white male, to fill the position of senior credit analyst. Simpson complained to Andre Mills, the vice-president of Human Resources. Simpson stated that she was unable to apply for the job because the job opening was not posted, contrary to company policy. Mills responded by explaining that Rykoff's policy was to post job openings only when there were not any applicants in that particular department who were either interested or qualified to fill the position. In April 1996, Rykoff appointed Arlyne Pratt, an African-American female over the age of forty, to an additional position of senior credit analyst.
In May 1996, Simpson reviewed her personnel file. The file contained several negative write-ups, including the 1993 Brookhart memorandum, which Simpson believed had been removed. Despite these negative write-ups, however, in July 1996, Simpson received a merit increase of 3%. She had received a 2% increase the previous year.
On May 17, 1996, Rykoff merged with U.S. Foodservice, a Pennsylvania company. Rykoff gave Simpson a package of incentives to entice her to stay with the company during the transition period. In the Fall of 1996, Rykoff offered Simpson another temporary position with a 4% pay increase. However, Simpson refused the offer because she considered the 4% pay increase "an insult to her intelligence." (Defendant Exhibit S).
At the end of 1996 and in the beginning months of 1997, employees in Simpson's department, Accounts Payable, were discharged as part of a downsizing effort. Ms. Peggy Kautz, the Human Resources Manager, informed Simpson in a letter that she was being discharged effective immediately. Simpson was the fifth employee in her department to be fired. All Accounts Payable employees discharged before her were white and over the age of forty. On that same day, May 29, 1997, Rykoff presented Simpson with a separation agreement. The agreement informed Simpson of the severance pay that she would receive and also contained a provision releasing Rykoff from all legal claims Simpson might have against it. Simpson refused to sign this agreement. Although Rykoff discharged the entire Accounts Payable department, Rykoff retained Gary Prorok and Frank Wotz, two white males, to assist in the company's transition. In addition, Rykoff also hired George Malano and Nelson Campbell, both white males, as a consultant and an accounting clerk.
B. Procedural History
During her tenure with Rykoff, Simpson filed four charges against it with the EEOC. In 1993, Simpson alleged that Rykoff discriminated against her when it placed the 1993 negative write-up in her personnel file. However, Simpson did not pursue the charge. Simpson subsequently complained to the EEOC on May 16, 1996, that Rykoff discriminated against her on the basis of both age and gender when the company did not select her for the position of senior credit analyst. The EEOC found that there was insufficient information to establish violations of the relevant statutes, but the EEOC issued Simpson a right to sue letter. (Simpson maintains that this charge was her third EEOC charge but has not provided us with a second one, allegedly filed in 1995). Subsequently, Simpson filed a third charge with the EEOC on March 19, 1997. In this charge, Simpson alleged that Rykoff retaliated against her because of her participation in the OFCCP investigation, and discriminated against her on the basis of race because of the negative write-up in her personnel file. The EEOC found insufficient evidence to support the charge and issued a right to sue letter. Simpson filed a fourth charge with the EEOC on June 6, 1997. She alleged that Rykoff fired her in retaliation for filing the previous charge with the EEOC. The EEOC again found insufficient evidence to support this charge and issued a right to sue letter.
Simpson filed her original complaint against Rykoff, Case No. 96 C 7795, in District Court on November 26, 1996, alleging violations of Title VII and the ADEA. Simpson filed a complaint against Rykoff, Case No. 97 C 6505, in District Court on October 2, 1997, which included the allegations made in the original complaint as well as the allegations made in her 1997 EEOC charge. These cases were consolidated before this Court.
DISCUSSION
Summary judgment is proper only when the complete record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P 56(c). The moving party has the initial burden of demonstrating the absence of evidence to support the position of the nonmoving party. Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). The burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue of material fact and that the nonmoving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
In ruling on a motion for summary judgment, the Court must draw every reasonable inference from the record in the light most favorable to the nonmoving party and should not make credibility determinations or weigh evidence. Association Milk Producers, Inc. v. Meadow Gold Dairies, Inc., 27 F.3d 268, 270 (7th Cir. 1994). The nonmoving party must support its assertions with admissible evidence and may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits.Celotex, 477 U.S. at 324. Additionally, the general standard for summary judgment is applied "with added rigor in employment discrimination cases, where intent is inevitably the central issue." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992). At the same time, however, employment discrimination cases, while often turning on factual questions, are nonetheless amenable to summary judgment when there is no genuine dispute of material fact or when there is insufficient evidence to demonstrate the presence of the alleged motive to discriminate. Cliff v. Board of School Comm'rs, 42 F.3d 403, 409 (7th Cir. 1994). We keep these standards in mind as we now turn to examine the motion before us.
A. Count I: Age and Gender Discrimination
Count I alleges that Rykoff discriminated against Simpson when it failed to provide her with the opportunity to apply for a promotion to the position of senior credit analyst. Rykoff offered the position to Martin Radman, a white male under the age of forty, and Simpson claims that, because she was as qualified as Radman for the position, Rykoff's failure to post the job opening demonstrates discrimination on the basis of age and gender.
A plaintiff can establish a prima facie case of age and gender discrimination, pursuant to Title VII and the ADEA, by showing that 1) she is a member of a protected class; 2) she was qualified for the position in question; 3) she was rejected despite her qualifications; and 4) another equally or less qualified person, who was not a member of the protected classes, was promoted. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973). Once a prima facie case of discrimination has been established, the burden shifts to the employer to articulate some legitimate nondiscriminatory reason for its action. Id. If the employer is able to offer such a legitimate reason, then the burden shifts back to the employee "to prove by a preponderance of the evidence that the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093 (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 v. Williams Electronics, Inc., 856 F.2d 920, 923 (7th Cir. 1988) (quoting Burdine, 450 U.S. at 256).
The Seventh Circuit has ruled that, in a discrimination action brought for failure to receive a promotion, the plaintiff must be able to show that she was entitled to the promotion and that the individual promoted ahead of her had the same or lesser qualifications. See Bragg v. Navistar Intern. Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998). Simpson claims that she was more qualified than Radman because she had been in the accounting field longer than he had.
In response, Rykoff asserts that Radman was the most qualified person for the position because of his educational background and work experience. We find that the record before us presents a genuine issue of material fact which precludes summary judgment. Rykoff argues that Radman is undisputably more qualified because he received an Associates Degree. However, Simpson was in the process of receiving her own degree. Rykoff also refers to Radman's "considerable" work experience, but Radman had only worked at Rykoff for one year when he was offered the promotion, and prior to that he had only worked at Chase Manhattan Bank for one year. The burden, of course, rests on Simpson to demonstrate that she is at least as qualified as Radman. However, the record before us also shows that Rykoff failed to set forth any objective qualifications which it considered when it made its promotion decision. For example, Rykoff does not explain the requirements for the job nor what qualifications it was considering. In fact, Rykoff never posted the job opening so that Simpson could apply for it, and there are facts in the record which suggest that Rykoff may have violated its own written policy when it failed to post the job opening. Jim Couch, the individual in charge of the Accounting Department, also admitted in his deposition that he never even considered Simpson for the promotion.
Because there is a genuine material dispute of fact concerning whether Radman was, in fact, more qualified that Simpson, we deny summary judgment on this Count.
B. Count II: Race Discrimination 1. Inadequate Merit Increase of Salary
Count Two alleges that Rykoff discriminated against Simpson when it failed to give her an adequate merit increase because of the negative write-ups in her file. Simpson contends that the write-ups themselves were discriminatory because they were (1) untrue and (2) placed in her file by a white person. Because these allegedly discriminatory evaluations formed the basis for her inadequate pay raises, she concludes that she was disparately treated as a result of her race.
This discrimination claim fails because Simpson neither has suffered an adverse employment action nor demonstrated that she was disparately treated based on race. The placement of negative write-ups in Simpson's file, alone, is not an adverse employment action, because the negative write-ups, in and of themselves, did not harm her. Simpson nonetheless argues that the negative comments formed the pretext for Rykoff's failure to give her an adequate merit increase. However, the undisputed facts show that Simpson had no entitlement to any merit increase, much less a substantial one. "[L]oss of a bonus is not an adverse employment action in a case . . . where the employee is not automatically entitled to the bonus." Rabinovitz, 89 F.3d at 488. We do not suggest that an employer may discriminate when making salary adjustments. However, when the size of the merit increase is a discretionary and based upon the employer's subjective evaluation of the employee, a disappointment in expectations is not a per se adverse employment action. In this case, there is no evidence in the record, other than her own opinion, suggesting that Simpson deserved a higher merit increase tan that which she received. "An employee's self-serving statements about his ability, however, are insufficient to contradict an employer's negative assessment of that ability." Gustovich, 972 F.2d at 848.
More importantly, and fatal to her claim, Simpson is unable to offer any evidence demonstrating that her merit increase actually was inadequate. Throughout her years at Rykoff, Simpson received numerous write-ups from both her supervisors and co-workers. Nonetheless, she was given more responsibility, received merit increases on several occasions, and was offered a promotion in 1996. The 3% increase that she received was within the average merit increase at Rykoff of between 1-3%. In fact, it was on the high end. Moreover, in the year preceding the negative write-up from her supervisor, she received only a 2% increase, suggesting that the write-up was unrelated to her merit increase.
Even if the 3% pay increase could be considered an adverse action, Simpson has offered no evidence that non-minority employees did not receive negative write-ups. Simpson claims that she undeservedly received a write-up while others outside the protected class did not receive them, but she offers no proof of this and conceded in her deposition that she has no knowledge as to whether white employees received write-ups. Further, there is no evidence that the write-ups themselves contained any racial connotation or were racially motivated.
Simpson argues that the write-ups must be discriminatory because Rykoff failed to remove the 1993 write-up, as had been promised to her. This fact alone, however, does not demonstrate that it was racially motivated. Simpson cannot show that she was treated any differently than similarly situated employees nor that she suffered an adverse employment action. Therefore, her racial disparate treatment claim fails.
2. Racial Discrimination in Simpson's Termination
Count II also charges that Rykoff discriminated against Simpson on the basis of race when it discharged her. However, Simpson has not offered any evidence that she was treated differently than her co-workers. The undisputed evidence shows that all of the employees in her department fired before her were white. In fact, the last three employees to be discharged included two African American women,
In addition, Rykoff offers a nondiscriminatory and legitimate explanation for Simpson's discharge which Simpson has not refuted. Rykoff eliminated the entire Accounts Payable department as a result of a business merger with U.S. Foodservice. Simpson argues that this reason is pretextual because several white men continued to work at Rykoff after Simpson was fired. Rykoff does not dispute the fact that Gary Prorok and Frank Wotz continued to work after the merger. However, the evidence shows that their positions were merely temporary, and their job functions were different than Simpson's. Therefore, they were not similarly situated to her.
Simpson also argues that two other white males continued to perform accounting functions after the department was discharged. However, Rykoff offers undisputed evidence that neither had the same responsibilities as Simpson. Everyone in Simpson's department was, in fact, fired, including several individuals not in the protected racial class. Therefore, Simpson has failed to refute Rykoff's proffered reason for her discharged.
3. Racial Harassment
Simpson argues that the continuous placement of "false" write-ups in her personnel file constituted racial harassment. In Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir. 1991), the Seventh Circuit ruled that hostile environment claims should be evaluated against both an objective and subjective standard. Id. at 1271. To prevail on a hostile work environment claim, Simpson must allege conduct "`sufficiently severe or pervasive to alter the conditions of then employment and create an abusive work environment.'" Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 708 (7th Cir. 1995) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67).
Before addressing the merits of this claim, we must first address Rykoff's argument that it the Count II harassment claim is time-barred. A plaintiff must file a Title VII complaint within 300 days of the alleged wrongdoing. Lorance v. ATT Technologies, Inc., 827 F.2d 163, 165-166 (7th Cir. 1987). Simpson filed three separate charges with the EEOC between May 1996 and August 1997. Simpson filed her EEOC complaint regarding the write-ups on March 19, 1997, but Rykoff placed the three primary write-ups in her file in or before February 1996. Simpson does not argue that the write-ups constitute a continuing violation. Therefore, her claim exceeds the 300 day limit.
Even if her claim was not time-barred, it would still fail. The undisputed facts show that the harassment claim is objectively unreasonable. First, it is undisputed that the write-ups contained absolutely no racial references. Of course, seemingly neutral harassment can mask discriminatory intent, but Simpson has presented no evidence that the write-ups were untrue or racially motivated, much less inflammatory. In fact, the evidence demonstrates that there was a factual basis for each and every write-up. Moreover, Simpson does not offer any evidence that employees outside the protected class did not receive write-ups, as well.
We are also hard-pressed to see how Simpson could have subjectively found the write-ups to be harassing. The only thing she points to for support of her conclusion that the write-ups were racially motivated is that a white woman was responsible for physically placing them in the file. We will not draw such a ridiculous and unfair inference.
Additionally, Simpson does not offer any evidence that she experienced any adverse consequences from the write-ups that would support her claim of harassment. For example, she neither asserts that her ability to work at the office was undermined nor claims that she suffered any mental anguish or suffering. In fact, Rykoff twice offered Simpson a promotion, and she was continually given merit salary increases.
C. Count III: Retaliation 1. OFCCP Retaliation
In Count III, Simpson alleges that Rykoff retaliated against her after Simpson gave an interview during an Office of Federal Contract Compliance Program (OFCCP) investigation concerning Rykoff's compliance with government affirmative action requirements. According to Simpson, after she gave this interview, Rykoff retaliated against her when it refused to give her an adequate salary increase.
To establish a prima facie case of retaliation under Title VII, the plaintiff must show that: 1) she engaged in statutorily protected expression; 2) she suffered an adverse action by her employer; and 3) there is a causal link between the protected expression and the adverse action. 42 U.S.C. § 2000e-3. Even if an inadequate merit increase is an adverse employment action, Simpson has failed to produce any evidence that her increased salary was objectively inadequate. The undisputed evidence demonstrates that, after the OFCCP interview, Simpson received a merit increase that was higher than the increase she had received the previous year, and that this increase was at the higher end of the raises given to other employees. Simpson's dissatisfaction with her merit increase does not convert that raise into an adverse employment action.
2. EEOC Retaliation
Simpson also contends that Rykoff retaliated against her because she filed several EEOC charges against it. Specifically, she claims that this is the reason she was fired. In June 1996, Rykoff sent a letter to Simpson stating that, because of the merger with U.S. Foodservice, her employment might eventually cease but that she could continue working for up to eighteen months. The preliminary decision to terminate Simpson, therefore, was made prior to Simpson filing her third EEOC complaint in March 1997.
Even if we assume that Simpson has established a prima facie case of retaliation, she has not rebuted Rykoff's explanation that Simpson's entire department was eliminated because of the merger. To demonstrate pretext, Simpson asserts that she was treated more harshly than her peers on the day of her termination. Harsh treatment, however, is not indicative of Rykoff's motive for terminating Simpson. Simpson has demonstrated that some Rykoff employees may not have liked her very much, but Simpson cannot satisfy her burden of showing that Rykoff terminated her because she had filed an EEOC charge. Because everyone in her department was discharged, Simpson was not treated any differently than similarly situated employees. In fact, Simpson was the fifth employee terminated out of a total of seven employees in the department.
Simpson also attempts to show pretext by contending that she was forced to sign a separation agreement, while other employees were not forced to do so. However, this evidence is irrelevant to the issue of whether Rykoff retaliated against her when it terminated her. Moreover, Simpson is unable to produce any evidence beside her self-serving deposition showing that certain employees did not have to sign the agreement or that only employees who had filed complaints were forced to sign the agreement.
Simpson also attempts to show pretext through a memorandum dated May 22, 1997, written by Evelyn Rigor, Simpson's supervisor, and addressed to Peggy Kautz, Rigor's supervisor. In the memo, Rigor strenuously complains about Simpson and writes, "I know [Simpson] has sued the company so I can understand how cautious everyone is in handling matters related to her. However, as I see it, the longer she is with the company the more chance she gets to do the damage." Simpson claims that this memorandum demonstrates that Rykoff considered Simpson's pending EEOC charges to be a factor when making the decision to terminate her, thus establishing pretext.
It is clear that Rykoff was aware of Simpson's EEOC charges, but Simpson offers no evidence to demonstrate that Rykoff considered or was actually influenced by the pending complaints when the decision to discharge Simpson was made. On the contrary, the memorandum suggests that Simpson was frequently insubordinate and disruptive and that Rykoff may have had a legitimate reason to fire her even before the merger.
D. Count IV: Racial Harassment
Simpson finally alleges that she was harassed on account of her race. Simpson fails to identify specifically what alleged negative action Rykoff took that constituted harassment. It is unclear whether Simpson is referring to the write-ups, the failure to receive the adequate merit increase, or the way she was treated upon termination. Because we have addressed the first two contentions in our discussion of Count II, we will focus on the allegations related to Simpson's termination.
Even if we assume that Simpson subjectively believed that her workplace was hostile, there is no evidence that this was objectively the case. Patrick Cawiezel, a co-worker, stated in his deposition that he had never seen another employee treated as badly as Simpson upon her termination. Cawiezel's statement suggests that the other African American employees were treated well, thereby refuting the premise that Simpson's treatment was racially motivated. Simpson does not offer, nor does the record show, any statements or actions made by other Rykoff employees that demonstrate any racial bias.
Even if Simpson could prove that her treatment was racially motivated, such treatment was not objectively severe or pervasive enough to alter her conditions of employment and create a hostile work environment. See Koelsch, 46 F.3d at 708. Signing a separation agreement cannot be considered severe, and even being closely watched and escorted out of the building is not egregious enough to rise to a claim actionable under Title VII. Regardless, Simpson's claim must fail because the events that transpired occurred after she had been discharged.
CONCLUSION
Because Simpson's original Complaint, filed in Case No. 96 C 7795, is fully replicated in her Complaint in Case No. 97 C 6505, the original Complaint is hereby dismissed. For all of the above-stated reasons, Defendant Rykoff-Sexton's Motion for Summary Judgment on Simpson's Complaint in Case No. 97 C 6505 is hereby DENIED for Count I and GRANTED for Counts II, III, and IV.