Opinion
No. 1:03-cv-00099-JDT-WTL.
July 20, 2004
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Latasha Oliver-Pullins, brings this suit against her former employer Associated Material Handling Industries, Inc. (AMHI), under Title VII and the Family and Medical Leave Act (FMLA), alleging discrimination based on race in promotion, discipline, hostile work environment, and retaliatory discharge. This matter is before the court on the Defendant's Motion for Summary Judgment. The court decides the matter as follows:
I. Facts
As required in a motion for summary judgment, the following facts are presented in the light most favorable to Plaintiff, as the non-movant. See Little v. Ill. Dep't of Revenue, 369 F.3d 1007, 1008 (7th Cir. 2004) (citing Rogers v. City of Chi., 320 F.3d 748, 750 (7th Cir. 2003)). Ms. Oliver-Pullins is an African-American woman who worked at AMHI as a sales support receptionist from July 1997 until she was terminated on August 1, 2002. (Def.'s App., Ex. A, Compl. ¶ 1.) She came to AMHI as a temporary employee through Manpower. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 14.) At AMHI, Ms. Oliver-Pullins reported to Helen LaFary, who acted as her direct supervisor. ( Id.; Def.'s App., Ex. D, LaFary Dep. at 8.) Ms. LaFary reported to Tim Harmon, the general manager of the AMHI Indianapolis facility. (Def.'s App., Ex. C, Harmon Dep. at 11-12.) In November 1997, Mr. Harmon and Ms. LaFary made the decision to offer Ms. Oliver-Pullins a permanent position as an employee of AMHI. (Def.'s App., Ex. D, LaFary Dep. at 7-8; Ex. B, Oliver-Pullins Dep. at 16.) Ms. Oliver Pullins was hired by AMHI into the position of sales support receptionist with the duties of answering multi-line phones for the Indianapolis office, typing, filing, and typing up sales quotes. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 16.) She performed her job well throughout her employment. (Def.'s App., Ex. C, Harmon Dep. at 128, 137; Ex. D, LaFary Dep. at 8.)
Much of Plaintiff's Statement of Material Facts in Dispute cites to evidence presented in Defendant's Appendix. Although the facts in this Entry are presented in the light most favorable to Plaintiff, many of the citations are to Defendant's Appendix.
A. Discrimination in Discipline
LTD Commodities is a company that sends out catalogs, and AMHI employees could make personal orders for merchandise from the catalog. (Def.'s App., Ex. D, LaFary Dep. at 54.) Although employees at AMHI ordered from the catalog for themselves, the order would be in AMHI's name. ( Id.) AMHI did not know that some of the bills for employees were not being paid. ( Id. at 55.) AMHI found out that there were three individuals at issue, Ms. Oliver-Pullins, Yvette Wagner who had left the company, and Julie Craciunoi. ( Id.) Ms. Wagner was terminated before her debt to LTD was discovered. ( Id.) Investigation revealed that Ms. Craciunoi had actually paid her portion of the bill. ( Id. at 54.) At one point in or around 2002, LTD applied one of Ms. Craciunoi's payments to a delinquent order of another employee. (Def.'s App., Ex. F, Craciunoi Aff. ¶ 7.) The matter was discussed with Mr. Harmon and LTD and the error was corrected. ( Id. ¶ 8.) Ms. Oliver-Pullins admits that she had not paid her bill to LTD. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 146.) The discipline she received from AMHI was that she was required to pay the overdue bill and she was never allowed to order anything else out of the LTD catalog. ( Id. at 153-54.)
B. Promotion Attempts
After Ms. Oliver-Pullins began working as a receptionist at AMHI, she sought increased responsibilities. At AMHI, it was a common procedure for an employee who was interested in a promotion to talk informally to the department manager after learning about a vacant position from an internal job posting. ( Id. at 31-32.) The process for filling vacancies was for the supervisor or manager to attempt first to fill it from within. When attempting to fill the vacant position from within, AMHI might approach a particular employee. (Def.'s App., Ex. C, Harmon Dep. at 14-16.)
1. Parts Position
In 1999 or 2000, Ms. Oliver-Pullins applied for a "parts position." (Def.'s App., Ex. B, Oliver-Pullins Dep. at 28, 34.) She asked the hiring supervisor, Robert Miller, about transferring to the position, but Mr. Miller said he preferred a man. Ms. Oliver-Pullins complained to Mr. Harmon about Mr. Miller. In response to Ms. Oliver-Pullins complaint, Mr. Harmon told Ms. Oliver-Pullins that he would talk to Mr. Miller "and take care of it." ( Id. at 33-34.) Plaintiff did not take any further action to pursue the parts position because Mr. Miller's comment made her feel inadequate. ( Id. at 31, 33.)
2. Rental Coordinator Position
Ms. Oliver-Pullins also applied for the rental coordinator position after learning about the vacancy from talk around the office. She inquired about the position by approaching Mr. Harmon and Sharon Sparks. ( Id. at 36-37.) As a result of her inquiries, Ms. Oliver-Pullins was given all or part of the rental coordinator responsibilities and a raise. ( Id. at 37-38.) The increased responsibilities included rental invoicing, tracking, and scheduling of drop off and pick up of equipment. ( Id. at 19.) Although she took on the rental position full time, she was required to continue all her duties as a receptionist. ( Id. at 38-39.) In Mr. Harmon's opinion, Ms. Oliver-Pullins assisted in rental coordinator duties without formally taking on the position. (Def.'s App., Ex. C, Harmon Dep. at 38.) Mike Bogue became the full time rental coordinator on January 1, 2001. (Def.'s App., Ex. E, Flood Aff. ¶ 5.) It was a full time job for Mr. Bogue, a Caucasian male. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 39-40.) Sometime after Mr. Bogue was hired, Ms. Oliver-Pullins ceased doing any work under the rental position. ( Id. at 40.)
3. First Vacancy of Assistant Sales Coordinator Position
In 1999, Ms. Oliver-Pullins learned that the assistant sales coordinator position was vacant. ( Id. at 46-47.) Ms. Oliver-Pullins, who had sufficient education for the position of assistant sales coordinator (Def.'s App., Ex. C, Harmon Dep. at 100), was interviewed for the position by Gail Rehbein (Def.'s App., Ex. B, Oliver-Pullins Dep. at 50). During the interview, Ms. Oliver-Pullins said that she would rather do marketing than sales coordination. ( Id. at 49.) After being told that marketing may be a better fit for her, Ms. Oliver-Pullins did not further pursue the assistant sales coordinator position. ( Id. at 52.) The assistant sales coordinator position was given to Scarlet Sawyer, an outside hire. (Def.'s App., Ex. D, LaFary Dep. at 22; Ex. B, Oliver-Pullins Dep. at 52-53.) It was expected that Ms. Sawyer would step into Ms. LaFary's position and assume the position of sales coordinator when Ms. LaFary retired. (Def.'s App., Ex. D, LaFary Dep. at 22-23.)
4. Marketing Position
Ms. Oliver-Pullins was encouraged to pursue a marketing position instead of the assistant sales coordinator position, but she never lost interest in the assistant sales coordinator position. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 49.) Ms. Oliver-Pullins independently began preparing marketing fliers and brochures for AMHI. (Def.'s App., Ex. C, Harmon Dep. at 39; Ex. B, Oliver-Pullins Dep. at 43-44.) Her additional responsibilities with respect to marketing included "creating line cards, binder covers, promotional fliers and mailings, upkeep of customer database." (Def.'s App., Ex. B, Oliver-Pullins Dep. at 20.) She received an increase in pay for these additional marketing duties ( id. at 44) and was able to accomplish the marketing and receptionist duties within the 7:30 to 4:30 daily time frame. ( Id. at 45.) Her supervisors were pleased with her work. (Def.'s App., Ex. D, LaFary Dep. at 8.) Mr. Harmon told Ms. Oliver-Pullins that he envisioned the possibility of a full-time marketing position sometime in the future. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 44.) However, a marketing position was never created other than as a part of Ms. Oliver-Pullins' work in her position as "sales support receptionist." ( Id. at 28.) Mr. Harmon said that a marketing department was never created because AMHI could not afford it. ( Id.)
5. Second Vacancy Assistant Sales Coordinator Position
Due to Ms. LaFary's planned retirement, and Ms. Sawyer's movement to the position of sales coordinator, the assistant sales coordinator position became available again in 2002. (Def.'s App., Ex. D, LaFary Dep. at 21-23.) Two applicants, Angel Langley and Tiffany Morse, were interviewed for the assistant sales coordinator position before the position had been posted. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 56.) Ms. Morse was interviewed June 3, 2002, and Ms. Langley was interviewed June 11, 2002. (Def.'s App., Ex. D, LaFary Dep. at 24; Ex. B, Oliver-Pullins Dep. at 56-57.) Ms. Langley was not a current employee of AMHI. (Def.'s App., Ex. C, Harmon Dep. at 122.) Ms. Morse was an employee in the Fort Wayne office of AMHI. (Def.'s App., Ex. D, LaFary Dep. at 42.) However, Ms. Morse only provided sales quotations for the two salesmen in Fort Wayne, whereas Ms. Oliver-Pullins provided sales quotations for the larger Indianapolis office. ( Id.) Ms. Oliver-Pullins learned of the opening by seeing Ms. Langley's resume faxed to the office. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 56.)
C. First EEOC Charge
On June 7, 2002, Ms. Oliver-Pullins filed a charge of race discrimination with the EEOC. In the charge, Ms. Oliver-Pullins alleged that she applied for the position of assistant sales coordinator and the position was offered to Ms. Morris, who was Caucasian. She also alleged that she was disciplined for having a past due purchase on a company account when a white employee, Ms. Craciunoi, also had a past due purchase but was not disciplined. ( See Def.'s App., Ex. A.)
D. Hostile Environment After Filing EEOC Charge
According to Ms. Oliver-Pullins, after filing a charge of race discrimination with the EEOC in June 2002, her work environment became hostile. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 77.) Those with whom she worked in close vicinity, including Mr. Harmon, Ms. LaFary, and Ms. Sawyer, stopped speaking to her. ( Id.) People would slam things on her desk instead of putting them in her in-tray. ( Id. at 77-78.) Ms. Sawyer and Ms. LaFary stopped backing her on the phones like they had in the past. ( Id. at 78.) Ms. Oliver-Pullins also says she was harassed because she was forced to have a phone interview with Ms. Flood when interviewing for the assistant sales coordinator position whereas Ms. Morse did not. ( Id. at 82.) The alleged harassment made Ms. Oliver-Pullins uncomfortable, but did not prevent her from fulfilling her job responsibilities and duties. ( Id. at 94.)
Mr. Harmon and Ms. LaFary were upset that Ms. Oliver-Pullins had filed an EEOC charge. They thought Ms. Oliver-Pullins was unfair in filing the charge. (Def.'s App., Ex D, LaFary Dep. at 61.)
Q. When the EEOC charge of Ms. Oliver-Pullins was received here, how did it come to you or how did you learn of it?
A. Tim Harmon told me.
Q. What did you and Mr. Harmon talk about at that time?
A. Geez, I don't remember. I guess we were both shocked that it had been filed.
Q. Were you upset by it?
A. I suppose, yeah.
Q. Did you feel like —
A. We felt —
Q. — it was kind of a personal afront [sic]?
A. We felt like it was unfair.
( Id.)
Ms. Oliver-Pullins also believed that management was sharing her EEOC charge with everyone in the office. She heard John Brown say, "I can't believe that. After all we've done for her." (Def.'s App., Ex. B, Oliver-Pullins Dep. at 87.) Additionally, the only other African-American employee, Albert Lyons, told Ms. Oliver-Pullins that Mr. Harmon asked him if he was going to be "a part of it" and if he knew anything about Ms. Oliver-Pullins' charge. ( Id. at 87-88, 90-91.) According to Plaintiff, Ms. Oliver-Pullins had not told Mr. Lyons or any other employee that she had filed the charge, so Mr. Lyons could not have received the information except through management. ( Id. at 91-92.)
E. Application for Second Vacancy of Assistant Sales Coordinator Position
Around the time Ms. Oliver-Pullins filed her EEOC charge, the assistant sales coordinator position was posted. ( Id. at 68-69.) After the posting was made, Ms. Oliver-Pullins formally applied for the position. ( Id. at 65-66.) On June 13, 2002, Ms. Oliver-Pullins sent her resume to Ms. Rehbein. ( Id. at 62.) She was interviewed over the phone by Human Resource representative Cheryl Flood, who was in Chicago. ( Id. at 82.) She was also interviewed in the office by Mr. Harmon, Ms. LaFary, and Ms. Sawyer. ( Id. at 84-85.)
In addition to the interviews, Ms. Langley and Ms. Oliver-Pullins were both given Caliper tests. Ms. Langley was allowed to take her test home; Ms. Oliver-Pullins was given her test in the office and was provided only a pencil. ( Id. at 107-08.) Ms. Oliver-Pullins had taken the test before, and knew that taking the test in a relaxed atmosphere with a dictionary and calculator available would be helpful. (Pl.'s App., Ex. 1, Oliver-Pullins Aff. ¶¶ 1-3.) When Ms. Oliver-Pullins had previously taken a Caliper test through AMHI the results were freely shared with her. After taking the Caliper test for the assistant sales coordinator position, Mr. Harmon told Ms. Oliver-Pullins that the results were confidential and could not be shared. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 99-100.)
Ultimately, the vacant assistant sales coordinator position was never filled. ( Id. at 105; Ex. C, Harmon Dep. at 107.) No one was offered the position and the position was eliminated. ( Id.) Ms. Oliver-Pullins testified that she did not know if either Ms. Morse or Ms. Langley was offered the assistant sales coordinator position in 2002. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 105.) However, Ms. Oliver-Pullins also testified that Ms. Morse told her that Ms. Morse had been offered the position. ( Id. at 164.) Mr. Harmon had previously inquired about Ms. Oliver-Pullins' interest in the assistant sales coordinator position, but she rejected the position. Instead, she expressed an interest in the marketing position. (Def.'s App., Ex. G, Harmon Aff. ¶ 6.)
F. FMLA Leave The Master Marketing Manual
On July 1, 2002, Ms. Oliver-Pullins took leave under the FMLA because her husband was gravely ill with diabetes and renal failure. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 113-14; Pl.'s App., FMLA Request, Ex. 1-A.) She needed to learn medical techniques to care for him and she also needed some rest from the continual stress she was under as the sole caregiver and financial support for a young family of five. (Def.'s App., Ex. B, Oliver Pullins Dep. at 171-73; Pl.'s App., Ex. 1, Oliver-Pullins Aff. ¶¶ 9-13.) She was expected to return from leave on August 1, 2002. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 106.) Ms. Oliver-Pullins was the first AMHI employee from Indianapolis to take FMLA leave. (Def.'s App., Ex. D, LaFary Dep. at 49.) Not knowing who would be taking over her desk and responsibilities in her absence, Ms. Oliver-Pullins took her personal possessions home with her. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 114.)
The marketing manual started as a collection of promotional material. ( Id. at 22.) There were two versions: an older one created before Ms. Oliver-Pullins was employed, and a current one that contained materials created and compiled by Ms. Oliver-Pullins. ( Id. at 21-23.) Mr. Harmon kept the original version in his office or behind Ms. Oliver-Pullins' work area. (Def.'s App., Ex. C, Harmon Dep. at 64; Ex. B, Oliver-Pullins Dep. at 23.) Ms. Oliver-Pullins began the upkeep of the newer version which contained only the work that she compiled and finished. It became the master marketing manual and was titled "Marketing Portfolio" on its cover. The master marketing manual was kept on a shelf behind Ms. Oliver-Pullins' desk, but it was available to anyone in the office to use at any time. (Def.'s App., Ex. C, Harmon Dep. at 70; Ex. B, Oliver-Pullins Dep. at 25-26.) It was freely taken from its shelf to be used by sales staff and others. There was no check-out system so it was regularly gone from its position and had to be tracked down. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 26-27.)
While Ms. Oliver-Pullins was on leave, Mr. Harmon was asked to go to a meeting in Chicago at AMHI headquarters and wanted the master marketing manual to show all of the fliers created in the Indianapolis branch. (Def.'s App., Ex. C, Harmon Dep. at 131.) He wished to share the marketing manual that Ms. Oliver-Pullins had created with the Chicago staff because it was a great single source to show the positive work of the Indianapolis office. ( Id. at 131-32.) Mr. Harmon located the older version of the marketing manual, but he could not find the new version of the marketing manual behind Ms. Oliver-Pullins' desk where it was normally kept. ( Id. at 132, 139-40.) While Ms. Oliver-Pullins was on leave, Mr. Harmon called her at home. She returned his call and told Mr. Harmon that she did not have the marketing manual. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 172-73.) Ms. Oliver-Pullins told him that she had taken copies of a few pages home with her, but that both marketing manuals, the current and older version, were in the office. ( Id. at 173-74.) The manual also existed on her computer in the office. (Pl.'s App., Ex. 1, Oliver-Pullins Aff. ¶¶ 6, 7.) Mr. Harmon repeatedly called Ms. Oliver-Pullins at her home, each time becoming more strident in tone. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 120-22, 173.) The calls became so insistent, adding to the pressure that Ms. Oliver-Pullins had at home, that she finally asked Mr. Harmon to stop calling. ( Id. at 122-23.)
G. Termination Upon Return From FMLA Leave
When Ms. Oliver-Pullins returned from her leave on August 1, 2002, she was called into Mr. Harmon's office. (Def.'s App., Ex. C, Harmon Dep. at 134.) Ms. LaFary was also present in the office. According to Defendant, Mr. Harmon told Ms. Oliver-Pullins to produce the marketing manual or she would be fired. ( Id.) Defendant claims that Ms. Oliver-Pullins stated that the master marketing manual was her manual and that AMHI was not getting it back. ( Id. at 135; Ex. D, LaFary Dep. at 33.) Mr. Harmon then terminated her employment. According to Defendant, Ms. Oliver-Pullins was terminated on August 1, 2002 because she did not return the manual. ( Id.) According to Plaintiff, after she was called into Mr. Harmon's office, he asked where the marketing manual was and she told him she did not have it. (Def.'s App., Ex. B, Olliver-Pullins Dep. at 177.) Mr. Harmon never told her that if she didn't return the manual, she would be fired. ( Id. at 177-78.) Moreover, when Ms. Oliver-Pullins returned to work on August 1, 2002, her termination paperwork had already been typed up. ( Id. at 176-77.) Ms. Oliver-Pullins never had the marketing manual at home; she only had copies of a few pages from it to use as examples of her work. ( Id. at 115.)
On August 1, 2002, Ms. Oliver-Pullins filed a second charge with the EEOC, alleging that she was terminated in retaliation for having filed a previous claim of discrimination. Ms. Oliver-Pullins filed this lawsuit on January 22, 2003.
While employed at AMHI, Ms. Oliver-Pullins was one of only two African-American employees. After she was terminated, Manpower sent Robert Simonton to AMHI to act as receptionist. Presently, Mr. Simonton and Mr. Lyons are the only two African-American employees at present. (Def.'s App., Ex. C, Harmon Dep. at 25.) There are sixty-five to seventy employees overall at AMHI. AMHI has not addressed the fact that its work force largely consists of white male employees. ( Id. at 24.)
II. Summary Judgment Standard
Summary judgment should be granted only if "the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Little, 369 F.3d at 1011 (quoting Fed.R.Civ.P. 56(c)). "[S]ummary judgment is warranted where `a rational trier of fact could not find for the nonmoving party.'" Id. (quoting Rogers, 320 F.3d at 752). When considering a motion for summary judgment, the court views the facts and draws all reasonable inferences from the facts in the light that is most favorable to the nonmoving party. Mattson v. Caterpillar, Inc., 359 F.3d 885, 888 (7th Cir. 2004) (citing Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1000 (7th Cir. 2000)). Moreover, in evaluating a summary judgment motion, "a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citations omitted)). "Rather, `[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.'" Id. (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)).
III. Race Discrimination
Plaintiff may establish a claim of intentional discrimination in violation of Title VII under the direct method or indirect method. Little, 369 F.3d at 1011 (citing Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 504 (7th Cir. 2004)). Under the direct method, Ms. Oliver-Pullins must demonstrate with either direct evidence or circumstantial evidence that an impermissible purpose motivated AMHI's decision to take an adverse job action against her. Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 938-39 (7th Cir. 2003) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997); Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994)). "[D]irect evidence is evidence, which, if believed by the finder of fact, `will prove the particular fact in question without reliance upon inference or presumption.'" Volovsek v. Wis. Dep't of Agric., 344 F.3d 680, 689 (7th Cir. 2003) (quoting Plair v. E.J. Brach Sons, 105 F.3d 343, 347 (7th Cir. 1997)). "The more common type of evidence is circumstantial evidence that allows a jury to infer intentional discrimination or retaliation." Id. (citing Rogers, 320 F.3d at 753). Generally speaking, there are "three flavors" of circumstantial evidence: "(1) suspicious timing, ambiguous statements, behavior towards other employees and so on; (2) evidence, but not necessarily rigorous statistical evidence, that similarly situated employees were treated differently, or (3) evidence that the employee was qualified for the promotion and passed over and the employer's reason for the difference in treatment is a pretext for discrimination." Id. at 689-90 (citing Troupe, 20 F.3d at 736).
If Ms. Oliver-Pullins is unable to succeed under the direct method, then she must try to prevail under the indirect method, commonly known as the McDonnell Douglas burden-shifting test. Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003) (citing Adams, 324 F.3d at 939). Under the McDonnell Douglas burden-shifting paradigm, Plaintiff has the initial burden of establishing a prima facie case of discrimination. Little, 369 F.3d at 1011 (citing Rhodes, 359 F.3d at 504). If Plaintiff satisfies this burden, the burden then shifts to Defendant who must provide a "legitimate, nondiscriminatory reason" for the adverse action. Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 784 (7th Cir. 2004) (citing Cerutti, 349 F.3d at 1061). Then, the burden returns to Plaintiff who must demonstrate that the reasons articulated by Defendant are pretextual. Id. (citing Cerutti, 349 F.3d at 1061).
A. Discipline for Past Due Purchases
Plaintiff does not have any evidence under the direct method that the discipline she received for the past due purchases was motivated by race. Thus, she must proceed under the indirect method. Ms. Oliver-Pullins can establish a prima facie case of discrimination by showing: "(1) [she] was a member of a protected class; (2) [she] was performing [her] job satisfactorily; (3) the employer took an adverse employment action against [her]; and (4) the employer treated at least one similarly situated individual outside of [her] protected class more favorably." Little, 369 F.3d at 1011 (citing Rhodes, 359 F.3d at 504).
Plaintiff has failed to identify a similarly situated employee who was treated more favorably. To demonstrate that she is similarly situated to another employee, Ms. Oliver-Pullins "must show that the employee is directly comparable in all material respects." Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 979 (7th Cir. 2004) (citing Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002)). In discipline cases, the Seventh Circuit has interpreted this element of the test to require "a showing that two employees dealt with the same supervisor, were subject to the same workplace rules, and engaged in similar conduct, but nonetheless received disparate treatment for no apparent legitimate reason." Adams, 324 F.3d at 940 (citing Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002)).
In Plaintiff's EEOC charge, she alleged that only she was written up for having past due purchases on the company account with LTD, but that another employee with past due purchases, Julie Craciunoi, was not disciplined. However, the facts show that Ms. Craciunoi is not a similarly situated employee because Ms. Craciunoi did not engage in the same conduct. Investigation revealed that Ms. Craciunoi had actually paid her portion of the bill and that at one point in or around 2002, LTD applied one of Ms. Craciunoi's payments to a delinquent order of another employee. The matter was discussed with Mr. Harmon and LTD Commodities and the error was corrected. It is undisputed that Ms. Oliver-Pullins had not paid her bill to LTD. The only other employee who had past due purchases was Yvette Wagner who was no longer an employee at AMHI when the past due debts were discovered. Moreover, Ms. Oliver-Pullins appears to have dropped this claim because she did not address it in her Response Brief. Because Plaintiff is unable to demonstrate a similarly situated employee, Defendant's Motion for Summary Judgment on Plaintiff's claim of race discrimination for disciplining her for the past due purchases will be GRANTED.
B. Failure to Promote
Plaintiff contends that AMHI refused to promote her on five different occasions because of her race. The positions to which Ms. Oliver-Pullins sought promotion included a "parts position", rental coordinator, marketing, and she claims to have been passed over for promotion twice for the assistant sales coordinator position.
1. Time Barred
Defendant contends that Plaintiffs' claims of discriminatory failure to promote related to the first vacancy of the assistant sale coordinator position, the rental position, and the parts position are time barred under 42 U.S.C. § 2000e-5(e)(1). Under 42 U.S.C. § 2000e-5(e)(1), Plaintiff was required to file an EEOC charge within 300 days after the allegedly unlawful practice occurred. See Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1009 (7th Cir. 2003); Minor v. Ivy Tech State Coll., 174 F.3d 855, 857 (7th Cir. 1999). Plaintiff filed her first EEOC charge, which alleged failure to promote because of race, on June 7, 2002. Thus, the charge could not be based on allegations of unlawful practices occurring before August 2001. Although Ms. Oliver-Pullins testified that she could not remember the exact dates of when she applied for most of the positions, it appears from the evidence on the record that she applied for the parts position in 1999 or 2000, the rental coordinator position before January 1, 2001, and the first vacancy of the assistant sales coordinator position in 1999. Moreover, Plaintiff concedes that "some of the promotions are outside the time frame," but argues that "all are relevant to the issue of discrimination." (Pl.'s Resp. at 20.) The court finds that Plaintiff's claims of discrimination in failure to promote to the parts position, rental coordinator position, and the first vacancy of the assistant sales coordinator position are time barred; as to these claims, Defendant's Motion for Summary Judgment will be GRANTED.
2. Merits
Plaintiff correctly points out that the facts underlying otherwise barred claims "may provide context and support" for claims that are not barred. See Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 727 (7th Cir. 2003); Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d 1014, 1027 (7th Cir. 2003) (citing Morgan, 536 U.S. at 113). Thus, the court addresses the merits of the time-barred claims.
a. Parts Position
With respect to the parts position, Plaintiff has direct evidence under the direct method of gender discrimination. According to Plaintiff, when she inquired about the parts position, Mr. Miller told her he preferred a man. This is the type of rare "I-am-not-promoting-you-because-you-are-a-woman" direct evidence of discrimination. See Volovsek, 344 F.3d at 689. However, Plaintiff alleges race discrimination, not gender discrimination. Even if Mr. Miller's illegal views regarding gender could be considered evidence suggesting that he has illegal beliefs with respect to race, there is nothing in the record that suggests that Mr. Miller was the decisionmaker in any of the other acts of discriminatory conduct that Plaintiff alleges she experienced. Furthermore, nothing in Mr. Harmon's manner of dealing with the complaint reveals discriminatory intent on the part of Mr. Harmon. See Williams v. Waste Mgmt., 361 F.3d 1021, 1033 (7th Cir. 2004). After Ms. Oliver-Pullins complained to Mr. Harmon, Mr. Harmon told her that he would talk to Mr. Miller "and take care of it." Plaintiff's claim of discriminatory failure to promote to the parts position does not support her other claims.
b. First Vacancy of Assistant Sales Coordinator Position
Plaintiff cannot show under the direct method that AMHI's failure to promote her to the first assistant sales coordinator position was motivated by race. She must therefore rely on the indirect method. In a failure-to-promote case, Ms. Oliver-Pullins must demonstrate that: "1) [she] belongs to a protected class, 2) [she] applied for and was qualified for the position sought, 3) [she] was rejected for that position and 4) the employer granted the promotion to someone outside of the protected group who was not better qualified than the plaintiff" or "that, after [her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Grayson v. City of Chi., 317 F.3d 745, 748 (7th Cir. 2003) (citing Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001), cert. denied, 535 U.S. 928 (2002)); Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002) (citing McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)), cert. denied, 537 U.S. 884 (2002).
Defendant contends that Plaintiff does not have a claim for failure to promote to the first assistant sales coordinator position because Plaintiff was not the most qualified candidate for the position. Plaintiff has failed to produce evidence demonstrating that she was more qualified for the position of assistant sales coordinator than Ms. Sawyer. Moreover, Plaintiff testified that she told Ms. Rehbein during the interview for the assistant sales coordinator position that she would rather do marketing. Thus, Plaintiff's claim of discrimination in failure to be promoted to the first vacancy of the assistant sales coordinator position does not support her other claims.
c. Rental Coordinator Position
Defendant contends that Plaintiff does not have a claim for failure to promote to the rental coordinator position because she actually performed the position. However, according to Mr. Harmon, although Ms. Oliver-Pullins assisted in rental coordinator duties, she never formally took on the position. Although Plaintiff took on the rental duties and received a raise, she was still required to perform the receptionist duties. When Mr. Bogue, a Caucasian male, assumed the rental coordinator position on January 1, 2001, it was a full time job for him. Moreover, although her salary was not decreased, when Mr. Bogue was hired, the rental responsibilities were taken away from Ms. Oliver-Pullins. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 40.) Thus, there is a factual dispute about whether Ms. Oliver-Pullins was awarded the rental coordinator position. Defendant also argues that Ms. Oliver-Pullins never applied for the position of rental coordinator and that she has not demonstrated that she is more qualified than Mr. Bogue. However, Ms. Oliver-Pullins testified that after hearing that the rental coordinator position was open, she inquired about the rental position by approaching Mr. Harmon and Sharon Sparks. (Def.'s App., Ex. B, Oliver-Pullins Dep. at 36.) Furthermore, before Mr. Bogue was hired, Ms. Oliver-Pullins took on all or part of the rental coordinator responsibilities. This is evidence that demonstrates that there is a genuine issue of fact as to whether Ms. Oliver-Pullins was more qualified than Mr. Bogue for the rental position. Defendant did not supply an undisputed legitimate explanation for why Ms. Oliver-Pullins was not promoted to the position. Thus, the Plaintiff's claim of discriminatory failure to promote to the rental coordinator position may support her other claims of failure to promote.
2. Second Vacancy of the Assistant Sales Coordinator Position
The only evidence under the direct method of discrimination in the failure to promote Ms. Oliver-Pullins to the second vacancy of the assistant sales coordinator position is the fact that Ms. Oliver-Pullins was not promoted to the position of rental coordinator and the suspicious circumstances surrounding that decision. A rational trier of fact could not find on this evidence alone that Plaintiff was denied the promotion to the assistant sales coordinator position because of her race.
Because Plaintiff does not have sufficient evidence under the direct method to show that AMHI's failure to promote her to the second vacancy of the assistant sales coordinator position was motivated by race, she must rely on the indirect method. AMHI does not dispute that Plaintiff is a member of a protected class or that she was qualified for the position. Defendant also does not dispute that Ms. Oliver-Pullins was rejected for the position. Defendant contends that Ms. Oliver-Pullins' claim of failure to promote related to the second vacancy of the assistant sales coordinator position fails because the position was never filled. See Howard v. Lear Corp. EEDS Interiors, 234 F.3d 1002, 1006 (7th Cir. 2000). Plaintiff argues that "[t]he only position apparently not filled as a result of the `9-11' market downturn was the position that Oliver-Pullins sought." (Pl.'s Resp. at 22.) However, as Defendant points out, Plaintiff has not produced any evidence in support of this assertion. Even if this were true, Plaintiff has not demonstrated that the decision not to fill the vacancy was really based on reasons other than market downturn. Defendant's Motion for Summary Judgment on Plaintiff's claim of failure to promote to the second vacancy of the assistant sales coordinator position will be GRANTED.
3. Marketing Position
Plaintiff does not have sufficient evidence under the direct method that AMHI's failure to promote her to a marketing position was motivated by race. Thus, she must proceed under the indirect method. Again, AMHI does not dispute that Plaintiff is a member of a protected class or that she was qualified for the position. Defendant contends that Ms. Oliver-Pullins' claim of failure to promote to the marketing position fails because the position did not exist. Mr. Harmon told Ms. Oliver-Pullins that he envisioned the possibility of a full-time marketing position sometime in the future. However, a marketing position was never created and Ms. Oliver-Pullins has not demonstrated that such a position existed. Defendant's Motion for Summary Judgment on Plaintiff's claim of failure to promote to a marketing position will be GRANTED.
C. Termination
Plaintiff's Complaint alleges that she was terminated because of race. Plaintiff does not have any direct evidence that race was the motivation for her termination. As discussed above, Plaintiff can establish a prima facie case of discrimination by showing: "(1) [she] was a member of a protected class; (2) [she] was performing [her] job satisfactorily; (3) the employer took an adverse employment action against [her]; and (4) the employer treated at least one similarly situated individual outside of [her] protected class more favorably." Little, 369 F.3d at 1011 (citing Rhodes, 359 F.3d at 504). Plaintiff cannot prevail under the indirect method because Plaintiff has not identified a similarly situated employee outside the class who was treated more favorably. Plaintiff also appears to have dropped this claim because she did not address it in her Response Brief. Because Plaintiff has not established a prima facie case demonstrating termination because of race, Defendant's Motion for Summary Judgment on Plaintiff's claim of termination because of race will be GRANTED.
IV. Harassment/Hostile Environment
Title VII provides that it is "`an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]'" Wyninger, 361 F.3d at 975 (quoting 42 U.S.C. § 2000e-2(a)(1)). "Thus, the statute prohibits an employer from `requiring people to work in a discriminatorily hostile or abusive environment.'" Id. (quoting Shanoff v. Ill. Dep't of Human Servs., 258 F.3d 696, 701 (7th Cir. 2001)). To survive summary judgment "an employee alleging racial harassment must show: (1) [she] was subject to unwelcome harassment; (2) the harassment was based on [her] race; (3) the harassment was severe or pervasive so as to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability." Williams, 361 F.3d at 1029 (citing Mason v. S. Ill. Univ., 233 F.3d 1036, 1043 (7th Cir. 2000)).Rather than harassment based on race, Plaintiff appears to claim that she was harassed because she filed a charge with the EEOC. Plaintiff describes the hostile environment as follows:
When Oliver-Pullins filed her charge of discrimination, she was treated differently thereafter. People quit talking to her. They manifested hostility in such actions as slamming papers on her desk. The only other African-American was approached about her charge of discrimination. She was defamed in stage whispers; i.e. "I can't believe she did that, after all we've done for her." She was interviewed differently (on phone instead of in person by the Chicago office). She was interviewed for a promotion by people angry at her. She was given different conditions for taking the Caliper test. . . . [P]eople quit giving her the back-up she needed to make sure the phones were answered, thereby possibly putting her job in jeopardy.
(Pl.'s Resp. at 22.)
Even if Plaintiff had demonstrated that the harassment was based on her race, she has not demonstrated that the conditions were so severe or pervasive as to alter the conditions of the work environment. For Plaintiff to prove exposure to "a severe or pervasive hostile environment, [she] must prove that the words or actions to which [she] was subjected were both objectively and subjectively hostile." Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004) (citing Robinson v. Sappington, 351 F.3d 317, 329 (7th Cir. 2003)). The court "`must consider all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Hildebrandt, 347 F.3d at 1034 (quoting Adusumilli v. City of Chi., 164 F.3d 353, 361 (7th Cir. 1998)). The court finds that a rational trier of fact could not find that the alleged harassment was so severe or pervasive as to alter Ms. Oliver-Pullins work environment. Plaintiff even testified that the alleged acts constituting harassment did not interfere with her ability to perform her work. Defendant's Motion for Summary Judgment on Plaintiff's claim of hostile environment will be GRANTED.
V. Title VII Retaliation
Title VII prohibits employers from punishing an employee for complaining about discrimination. Sitar, 344 F.3d 727 (citing 42 U.S.C. § 2000e-3(a); Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000)). Claims of retaliation, like claims of race discrimination, can be proven either under the direct method or indirect method. Davis, 368 F.3d at 786. To prevail on a retaliation claim under the direct method of proof, Ms. Oliver-Pullins must demonstrate that she "engaged in statutorily protected activity," that she was subjected to an adverse employment action, and that there is a causal connection between the two events. Lang v. Ill. Dep't of Children Family Servs., 361 F.3d 416, 418-19 (7th Cir. 2004) (citing Sitar, 344 F.3d at 728; Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002)). Under the direct method of proof, Plaintiff may rely on either direct or circumstantial evidence. Id. at 419 (citing Rogers, 320 F.3d at 753-54).Under the indirect method of proof, Ms. Oliver-Pullins must show that: "(1) [she] engaged in a statutorily protected activity; (2) [she] performed [her] job according to [her] employer's legitimate expectations; (3) despite [her] satisfactory job performance, [she] suffered an adverse action from the employer; and (4) [she] was treated less favorably than similarly situated employees who did not engage in statutorily protected activity." Davis, 386 F.3d at 788 (citing Sitar, 344 F.3d at 728). If she establishes these elements of the prima facie case, the burden then shifts to AMHI which must articulate "`a legitimate, non-invidious reason for its adverse employment action.'" Id. (quoting Sitar, 344 F.3d at 728). If AMHI satisfies its burden, the burden returns to Plaintiff who must then demonstrate that AMHI's articulated explanation is pretextual. Id. (citing Sitar, 344 F.3d at 728; Volovsek, 344 F.3d at 692).
Plaintiff argues that she can survive summary judgment under the direct method. It is undisputed that Plaintiff engaged in statutorily protected activity, filing the EEOC charge, and that she experienced adverse employment action, the termination of her employment. The issue is whether Plaintiff has produced sufficient evidence for a rational trier of fact to find that a causal connection exists. Plaintiff's evidence of a causal connection consists of: suspicious timing, Ms. LaFary's testimony that she and Mr. Harmon were upset that Ms. Oliver-Pullins filed the EEOC charge, and the pretextual nature of the reason for her termination.
"Although a short period of time between the filing of a charge of discrimination and an allegedly retaliatory action is rarely enough by itself to create a triable issue, the timing of events `is often an important evidentiary ally of the plaintiff.'" Lang, 361 F.3d at 419 (citing Stone, 281 F.3d at 644, and quoting Lalvani v. Cook County, 269 F.3d 785, 790 (7th Cir. 2001)). "Close temporal proximity provides evidence of causation and may permit a plaintiff to survive summary judgment provided that there is also other evidence that supports the inference of a causal link." Id. (citing Haywood v. Lucent Techs., Inc., 323 F.3d 524, 532 (7th Cir. 2003); Hunt-Golliday v. Metro. Water Reclamation Dist., 104 F.3d 1004, 1015 (7th Cir. 1997)); see also Pugh v. City of Attica, 259 F.3d 619, 628-29 (7th Cir. 2001) (citing King v. Preferred Technical Group, 166 F.3d 887, 894 (7th Cir. 1999)). Ms Oliver-Pullins filed the charge of discrimination with the EEOC on June 7, 2002. She was fired less than two months later on August 1, 2002. After Ms. Oliver-Pullins filed the EEOC charge, she alleges that her coworkers, including Mr. Harmon, made it known to Ms. Oliver-Pullins that they were angry with her. Mr. Harmon stopped speaking to her. People would slam things on her desk instead of put them in her in-tray. Additionally, Ms. LaFary testified that both she and Mr. Harmon were shocked about the EEOC charge and thought it was unfair.
Furthermore, there exist disputes of material fact concerning the marketing manual, which if resolved in favor of Plaintiff, demonstrate pretext. Plaintiff may show pretext by showing that Mr. Harmon's articulated reason for terminating her employment "(1) had no basis in fact; (2) did not actually motivate [her] discharge; or (3) was insufficient to motivate [her] discharge." Davis, 368 F.3d at 784 (citing Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002)); see also Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1460-61 (7th Cir. 1994) ("A detailed refutation of events which underlie the employer's negative performance assessment demonstrates that the employer may not have honestly relied on the identified deficiencies in making its decision."). In determining pretext, however, the focus must be "`whether the employer's stated reason was honest, not whether it was accurate, wise, or well-considered.'" Davis, 368 F.3d at 784 (quoting Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)); see also Pugh, 259 F.3d at 627 (stating that in order to succeed, a plaintiff must "present evidence to create a material dispute as to the [defendant's] honest belief" in its proffered explanation (citing Green v. Nat'l Steel Corp., 197 F.3d 894, 899 (7th Cir. 1999))).
Defendant contends that Ms. Oliver-Pullins was terminated on August 1, 2002 because she did not return the master marketing manual. According to Mr. Harmon, Ms. Oliver-Pullins was given one of two options before her termination: she could either return the manual or her employment would be terminated. When Ms. Oliver-Pullins told Mr. Harmon she did not have the marketing manual, Mr. Harmon terminated her employment. According to Plaintiff, when Ms. Oliver-Pullins returned to work on August 1, 2002, her termination paperwork had already been typed up. Mr. Harmon never told her that if she didn't return the manual, she would be fired. Instead, Mr. Harmon only asked where the marketing manual was and she told him she did not have it. Moreover, Ms. Oliver-Pullins never had the marketing manual at home, and informed Mr. Harmon of this. Instead, the only thing she had at home were personal copies she had made of a few pages from the marketing manual which she had taken as examples of her work. Moreover, copies of the contents of the master manual were available on Ms. Oliver-Pullins' computer at work. A rational trier of fact could accept Ms. Oliver-Pullins' version of events over Mr. Harmons and conclude that Mr. Harmon's articulated reason for the termination was not the real reason for the discharge. Because genuine issues of material fact exist which if resolved in favor of Plaintiff would permit a rational trier of fact to conclude that Ms. Oliver-Pullins' termination was motivated by retaliation, Defendant's Motion for Summary Judgment on Plaintiff's claim of retaliation for filing the EEOC charge is DENIED.
VI. FMLA Retaliation
The FMLA "affords employees protection in the event they are discriminated against for exercising their rights under the Act." King, 166 F.3d at 891 (citing 29 U.S.C. § 2615(a)(1) (2)). "Specifically, `[a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave.'" Id. (quoting 29 C.F.R. § 825.220(c)). "[W]hen an employee raises the issue of whether the employer discriminated against an employee by taking adverse action against the employee for having exercised an FMLA right, the question of intent is relevant. The issue becomes whether the employer's actions were motivated by an impermissible retaliatory or discriminatory animus." Id. (citing Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998)). A claim of retaliation under the FMLA is evaluated in the same manner as a claim of retaliation is evaluated under Title VII. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004) (citing King, 166 F.3d at 891). Thus, to demonstrate retaliation under the FMLA, Plaintiff may rely on either the direct method or indirect method. Id.In the present case, Plaintiff was terminated the very morning she returned from FMLA leave. See King, 166 F.3d at 893 (termination one day after completing FMLA leave sufficient to establish causal connection because "`the discharge took place on the heels of protected activity'" (quoting Dey, 28 F.3d at 1458)). But see Phelan v. City of Chi., 347 F.3d 679 (7th Cir. 2003) (employee did not establish causal connection although terminated while on FMLA leave), cert. denied, 124 S. Ct. 2034 (2004). Additionally, as discussed in the context of the Title VII retaliation claim, there are genuine issues of material fact which if resolved in Plaintiff's favor raise doubt about the honesty of Mr. Harmon's stated reason for terminating Ms. Oliver-Pullins' employment. Thus, the court finds that Plaintiff has produced sufficient evidence under the direct method demonstrating a causal connection. Defendant's Motion for Summary Judgment on Plaintiff's claim of retaliation under the FMLA is DENIED.
VII. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment with respect to Plaintiff's claims of discriminatory failure to promote to the parts position, rental coordinator position, first sales coordinator position, second sales coordinator position, and marketing position will be GRANTED. Additionally, Defendant's Motion for Summary Judgment on Plaintiff's claims of termination because of race and hostile work environment will be GRANTED.Defendant's Motion for Summary Judgment on Plaintiff's claim of retaliatory discharge for filing the EEOC charge is DENIED. Defendant's Motion for Summary Judgment on Plaintiff's claim of retaliatory discharge for taking FMLA leave is DENIED. These matters and the counterclaim will be set for a prompt trial at an upcoming telephone conference. Because of the pendency of the claims remaining for trial and the related factual bases of the various claims, a final judgment on the deficient claims will not be issued until the trial claims are decided. Only a single judgment will be issued in this case so that multiple appeals from this single case cannot result.
ALL OF WHICH IS ORDERED.