Opinion
NO. 1:02-CV-01769-TAB-DFH
May 17, 2004
ENTRY ON MOTION FOR SUMMARY JUDGMENT
I. Introduction.
Elizabeth Terry filed this action alleging discrimination based on race and/or sex primarily in relation to her compensation. Terry, an African-American female, claims that her former employer, Bank One, Indiana, N.A., hired her for the position of Human Resources Consultant II ("HRC II"), but failed to pay her that position's salary. Terry alleges that Bank One treated a similarly situated non-African-American male HRC II more favorably by paying him a significantly higher salary. Bank One responds that Terry was not qualified for the position of HRC II, that it did not hire Terry for that position but instead offered her a HRC I position, and that documentation stating otherwise was merely the result of a clerical error.
As explained in more detail below, this is a close case on summary judgment. But when the evidence is viewed in a light most favorable to Terry, a reasonable jury could conclude that the pay disparity resulted from unlawful discrimination. Accordingly, Bank One's motion for summary judgment with respect to Terry's salary discrimination claim is DENIED. With respect to Terry's claims of discriminatory treatment regarding Bank One's alleged failure to provide additional employment opportunities and relocation benefits, Bank One's motion for summary judgment is GRANTED.
II. Summary Judgment Standard.
Summary judgment is proper where 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317. 322 (1986): Williams v. Waste Management of Illinois, 361 F.3d 1021, 1028 (7th Cir. 2004). The Court construes all facts and draws all reasonable inferences in the light most favorable to the nonmoving party. Butera v. Cottey, 285 F.3d 601, 605 (7th Cir. 2002).
The facts are either undisputed or viewed in a light most favorable to Terry, the non-moving party. In addition, this background section is a brief overview of the facts and is not meant to be an exhaustive recitation of all material facts in this case.
Bank One originally hired Terry in June 1998 as a Senior Recruiter in Bank One's Staffing Department. [Compl., ¶¶ 2, 12; Answer, ¶¶ 2, 12; Terry Dep., pp. 20-21]. In September 2001, Bank One posted an internal job opening for the position of Human Resources Consultant II ("HRC II"). [Pl.'s Ex. II; Graves Aff., ¶ 5; Cartwright Dep., p. 10]. The internal posting, under "Position Description," stated that the position "[w]ill be payband 5 or 6 depending on experience." [Pl.'s Ex. II; Graves Aff., ¶ 5]. At the time, Bank One classified its human resource consultants as either HRC I, paid at pay grade 5, or HRC II, paid at pay grade 6. [Graves Aff., ¶ 5]. Bank One offered Terry the position of HRC II at pay grade 5. [Terry Dep., pp. 62-63, 65; Terry Aff., ¶ 6; Pl.'s Ex. I]. Before Terry accepted the offer, Donna Cartwright and Carol Graves of Bank One separately informed Terry that she would move to payband 6 and receive her merit and promotional money in April 2002. [Terry Dep., pp. 62-64]. However, Bank One never moved Terry from a payband 5 to a payband 6. [Terry Dep., p. 64].
For purposes of this decision, "payband" and "pay grade" are used interchangeably.
Whether Bank One hired Terry as a HRC I or HRC II is a highly contested fact. However, at the summary judgment stage the Court must conclude that Bank One hired Terry for the HRC II position.
On October 1, 2001, Bank One sent Terry a formal offer letter that "supersede[d] any and all verbal or written communication made in conjunction with [Terry's] offer of transfer." [Pl.'s Ex. I; Terry Dep., p. 60]. The letter described Terry's position as "HR Cons II — Bus Partner, reporting to Carol L. Graves, Consumer Lending — Hr Support" with payband 5. [Pl.'s Ex. I]. Terry understood that Bank One hired her for the HRC II position. [Terry Dep., p. 165]. Terry's salary and payband remained unchanged from her previous position — $44,907.00 and payband 5. [Terry Dep., pp. 27, 31, 62-63; Graves Aff., ¶ 6]. During her employment, Bank One never informed Terry that she had not been hired as a HRC II. [Terry Dep., pp. 164-65].
Bank One claims that it hired Terry as a HRC I because "Terry did not possess the requisite years of broad HR experience needed to qualify her for a higher paying grade 6" HRC II position. [Graves Aff., ¶ 8]. Bank One acknowledges that the October 1, 2001 formal offer letter to Terry contained an inconsistency because it identified the HRC II position, but at payband 5. [Cartwright Dep., pp. 21-22; Pl.'s Ex. I]. However, Bank One maintains that this inconsistency was a clerical error. [Cartwright Dep., pp. 21-22].
As evidence of salary discrimination, Terry compares herself to Ambrose Wilson. Bank One hired Wilson, a white male, as a HRC II at pay grade 6 in its Lexington, Kentucky Consumer Lending group on April 30, 2001. [Graves Aff., ¶ 12; Terry Dep., pp. 176-77]. Bank One paid Wilson a starting salary of $56,000.00. [Graves Aff., ¶ 13]. Both Terry and Wilson reported to Carol Graves, Human Resources Manager in Bank One's Consumer Lending group. [Compl., ¶ 18; Answer ¶ 18; Graves Aff., ¶¶ 1-2].
Bank One eliminated Terry's position effective July 12, 2002 as a result of a reduction-in-force. [Graves Aff., ¶ 20]. However, Terry does not claim discriminatory discharge. [Docket No. 52, p. 10].
IV. Discussion.
A. The Scope of Terry's EEOC Charge.
From a procedural standpoint, Terry's claims are somewhat confused. On June 21, 2002, Terry filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging gender discrimination in violation of the Equal Pay Act. [Pl.'s Ex. III]. Yet "[t]here is no exhaustion requirement for administrative remedies under the Equal Pay Act." Gehrt v. University of Illinois at Urbana-Champaign Co-op. Extension Service, 974 F. Supp. 1178, 1189 (C.D. Ill. 1997), citing County of Washington v. Gunther, 452 U.S. 161, 175 n. 14 (1981). Moreover, Terry did not mention either race or sex discrimination under Title VTI in the body of her charge. Nor did she check the boxes for race or sex discrimination on the charge form. [Pl.'s Ex. III]. Thereafter, Terry filed a federal complaint alleging "sex and racial discrimination in employment" brought pursuant to Title VII and 42 U.S.C. § 1981. [Compl., ¶ 5]. Terry's Title VTI claims involve allegations of disparate pay and failure to provide additional employment opportunities and relocation benefits. Curiously, however, Terry's complaint did not include an Equal Pay Act claim.
Due to this muddled procedural history, Bank One argues that the scope of Terry's federal complaint is limited by the scope of her EEOC charge. [Docket No. 46, pp. 9-11]. On this principle, the parties agree. [See Docket No. 52, pp. 7-8].
Generally, a plaintiff may not bring claims under Title VII that were not originally included in the charges made to the EEOC. This rule serves two purposes: affording the EEOC the opportunity to settle the dispute between the employee and employer, and putting the employer on notice of the charges against it. The only qualification to this principle applies to claims that are "like or reasonably related" to the EEOC charge, and can be reasonably expected to grow out of an EEOC investigation of the charges. Those claims may also be brought.Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 726 (7th Cir. 2003) (internal citations omitted). Accordingly, the Court must determine which of Terry's Title VII claims, if any, are like or reasonably related to her EEOC charge and that could reasonably evolve from an EEOC investigation into that charge.
Factually, Terry's race and sex discrimination claims included in her federal complaint center around the same actors and events. However, in addition to allegations of disparate pay, Terry alleged that Bank One failed to offer her additional employment opportunities or provide relocation benefits when it eliminated Terry's position in May 2002. [Compl., ¶¶ 12, 16-17, 19, 25]. It is undisputed that these claims — failure to provide additional employment opportunities and relocation benefits — were not included in Terry's EEOC charge. Bank One contends that Terry's "Title VII disparate wage claim is the only conceivable claim that can be said to be `like or reasonably related to' the allegation of unequal pay originally advanced in her EEOC charge." [Docket No. 46, p. 11]. In contrast, Terry argues that each of her claims involve the same actors and, therefore, are reasonably related to her underlying EEOC charge. [Docket No. 52, pp. 8-9]. See also Risk v. Ford Motor Co., 48 F. Supp.2d 1135, 1145 (S.D. Ind. 1999) ("This factual relationship means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals."). In addition, Terry asserts that "even if these claims did violate the scope of charge rule under Title VII, these claims would still be remedial under § 1981." [Docket No. 52, p. 7]. As explained below, the Court agrees with Bank One.
Terry does not have a Title VII race discrimination claim. In her complaint, Terry acknowledges that she "did not file a charge of racial employment discrimination with the Indianapolis District Office of the Equal Employment Opportunity Commission." [Compl., ¶ 10]. However, "[s]ection 1981 claims are not subject to the same charge-filing requirements as Title VII claims." Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 551 n. 13 (7th Cir. 20021 citing Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 166 (7th Cir. 1976). Therefore, Terry's race discrimination claims under 42 U.S.C. § 1981 are not barred by her failure to include those claims in her EEOC charge.
First and foremost, Terry's suggestion that her § 1981 claim compensates for any administrative failures of her Title VII claims is simply incorrect. Terry's EEOC allegation of disparate pay based on sex is entirely different from a race discrimination claim based on the same facts. "[C]laims of sex discrimination are not cognizable under section 1981. . . ." Friedel v. City of Madison, 832 F.2d 965, 967 (7th Cir. 1987), citing Runyon v. McCrary, 427 U.S. 160, 167 (1976); St. Louis v. Alverno College, 744 F.2d 1314, 1317 (7th Cir. 1984). Therefore, Terry's § 1981 race claims cannot revive any deficiencies in her EEOC charge alleging sex discrimination. Accordingly, Terry is left with is a Title VII sex discrimination claim that may be limited by the scope of her EEOC charge, and a § 1981 race discrimination claim unrelated to her EEOC charge.
As noted above, Bank One contends that Terry's Title VII claims must be limited to her allegations of unequal pay. Certainly, Terry's Title VII sex discrimination claim based on unequal wages is "like or reasonably related to" her EEOC charge alleging discrimination "on the basis of [Terry's] gender (female) in violation of the Equal Pay Act" [Pl.'s Ex. III] and would reasonably grow from an investigation of that charge. However, Terry's claims that Bank One violated Title VII by failing to provide additional employment opportunities or relocation benefits is another matter. Even assuming that Terry's allegations of disparate pay are "like or reasonably related to" her allegations that Bank One failed to "offer a position outside of Indiana when her job was eliminated" and failed to provide relocation benefits [Compl., ¶ 25], those claims could not reasonably be expected to grow out of an EEOC investigation of Terry's original charge. See Kirk v. Federal Property Mgmt. Corp., 22 F.3d 135, 139 (7th Cir. 1994) (finding that failure to provide educational opportunities was not reasonably related to failure to promote claim); Monaco v. Fuddruckers, Inc., 1 F.3d 658, 660 (7th Cir. 1993) (holding that EEOC charge alleging constructive discharge as a result of a loss in wages, hours and vacation time did not reasonably encompass a failure to promote claim); Nowak v. Palatine Community Consol. School Dist. No. 15, 2001 WL 619521, at *3 (N.D. Ill. 2001) (finding that EEOC investigation involving charge of unequal pay would not have uncovered plaintiff's "disparate treatment allegations with respect to other workers receiving higher hours" because the investigation "would have been limited to analyzing payroll documents as opposed to time sheets."). Terry's claims regarding Bank One's alleged failure to provide additional employment opportunities and relocation benefits are beyond the scope of Terry's EEOC charge. As a result, those claims are barred. Accordingly, Bank One's motion for summary judgment is GRANTED as to Terry's sex discrimination claims alleging failure to provide additional employment opportunities and relocation benefits.
B. Disparate Pay.
1. Prima Facie Case.
Under Title VII, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race [or] . . . sex." 42 U.S.C. § 2000e-2(a)(1). Terry does not offer direct evidence of discrimination. [Docket No. 52, p. 1]. Therefore, she must proceed under the familiar indirect, burden-shifting approach. Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 504 (7th Cir. 2004),citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the Title VII context, to establish a prima facie case of salary discrimination based on sex, Terry must show that "1) she was a member of a protected class, 2) she was meeting her employer's legitimate expectations, 3) she suffered an adverse employment action, and 4) the employer treated a similarly situated man more favorably." Cullen v. Indiana University Board of Trustees, 338 F.3d 693, 704 (7th Cir. 2003). Because, "[d]iscrimination claims under both Title VII and § 1981 are analyzed in the same manner," the Court considers Terry's race discrimination claim, as it relates to disparate pay, and sex discrimination claim together. Patton v. Indianapolis Public School Bd., 276 F.3d 334, 338 (7th Cir. 2002).
At the summary judgment stage, Bank One does not contest Terry's satisfaction of the first three elements of the McDonnell Douglas prima facie test with respect to either Terry's race or sex discrimination claim. Instead, Bank One argues that both claims fail for the same reason — Terry cannot establish that a similarly situated individual outside the protected class was treated more favorably. The Court disagrees. For the reasons stated below, the Court finds that Terry has established a prima facie case of race and sex discrimination.
As noted above, Terry points only to Ambrose Wilson, a white male FIRC II, as evidence that Bank One treated a similarly situated individual outside the protected classes more favorably. Terry's ability to compare herself with Wilson hinges on whether a reasonable jury could conclude that Bank One hired Terry for the HRC II position. If not, Wilson — holding a more advanced position — is not similarly situated, and Terry's prima facie case would fail. However, several facts could allow a jury to conclude that Bank One actually hired Terry for the HRC II position. First, the internal job posting announced a HRC II vacancy. In addition, Terry's formal offer letter indicated it was for the HRC II position and Terry believed she had been hired for that position. Also, despite discussing her salary concerns with both Cartwright and Graves, no one from Bank One indicated that Terry had been hired for the lower paying HRC I position. Finally, Terry's 2002 Development Plan, signed by Graves and dated approximately four months after her transfer, indicates Terry's job title as "Human Resources Business Partner, PB6," further lending support to Terry's position that Bank One hired her as a HRC II. [Pl.'s Ex. VI]. A reasonable jury could concluded from these facts that Bank One hired Terry as a HRC II. Accordingly, further analysis is required to determine whether Wilson is a satisfactory comparable for purposes of Terry's prima facie case.
"To be similarly situated to another employee, [Terry] 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). In making this inquiry, courts look at all relevant factors, which often include:
whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications — provided the employer considered these latter factors in making the personnel decision. Above all, we are mindful that courts do not sit as super personnel departments, second-guessing an employer's facially legitimate business decisions.Ajavi v. Aramark Business Services. Inc., 336 F.3d 520, 532 (7th Cir. 2003) (citations omitted). However, there is no set calculus for making this determination and the number of factors depends on the context of the case. Grayson v. O'Neill, 308 F.3d 808, 819 (7th Cir. 2002). In addition, "an employee need not show complete identity in comparing himself to the better treated employee, but he must show substantial similarity." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000). Finally, "[w]hether two employees are similarly situated ordinarily presents a question of fact for the jury."Graham v. Long Island R.R., 230 F.3d 34, 39 (2nd Cir. 2000).See also Greenslade v. Chicago Sun-Times. Inc., 112 F.3d 853, 863 (7th Cir. 1997) (plaintiff failed to satisfy prima facie case of discrimination because plaintiff presented no evidence from which a reasonable jury could conclude that a similarly situated female was treated more favorably).
Bank One offers several reasons why Wilson is not similarly situated to Terry. For example, Bank One employed Wilson in a different geographical market than it did Terry. In addition, Bank One claims that the Lexington market was targeted for "substantial growth" from 450 to 700 employees and that Bank One was investing in the Lexington market more heavily than other geographic areas. [Graves Aff., ¶¶ 15, 17]. According to Bank One, Wilson's Lexington HRC II position "required greater use of independent judgment [than that of Terry's] and strong consulting skills" because Wilson was the only Human Resource Consultant in that location. [Graves Aff., ¶ 16]. In contrast, Bank One claims that Terry's position involved consulting for "approximately 400 employees located at Bank One's facility in Fishers," that Terry could draw from resources, including that of her manager, located in Fishers, and that no growth was anticipated in Terry's geographical market. [Graves ¶¶ 9-11]. Accordingly, Bank One concludes that "[t]he irrefutable evidence that Wilson worked in a different geographic market and area of the country, had a broader scope and caliber of responsibilities, had more employees, and required greater independent judgment in the oversight of a rapidly growing line of business, is fatal to Terry's prima facie case." [Docket No. 46, p. 13].
Bank One's assertions notwithstanding, the Court believes a reasonable jury could find that Wilson and Terry were similarly situated. As noted above, a reasonable jury could conclude that Bank One offered Terry the position of HRC II. Accordingly, in a light most favorable to Terry, Wilson and Terry held the same job title and thus, the same job description. [See Pl.'s Ex. V]. In addition, both reported to Graves. Also, as Terry points out, she was responsible not only for Fishers, but also Bank One's Consumer Lending sites in Akron and Findley, Ohio. [Pl.'s Ex. II; Terry Aff., ¶ 25]. Therefore, Bank One's statement that Terry "was responsible for approximately 400 employeeslocated at Bank One's facility in Fishers" appears to ignore Terry's responsibilities in Ohio. [Graves Aff., ¶ 9 (emphasis added)]. In short, at the summary judgment stage, Terry has established a prima facie case of race discrimination under § 1981 and sex discrimination pursuant to Title VII regarding disparate pay. 2. Pretext.
Because Terry establishes her prima facie case, the burden of production shifts to Bank One to provide a legitimate, non-discriminatory reason for the pay disparity. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000); Cullen v. Indiana University Board of Trustees, 338 F.3d 693, 704 (7th Cir. 2003). To satisfy this burden, Bank One need only offer "admissible evidence which would allow the trier of fact to rationally conclude that the employment decision had not been motivated by discriminatory animus." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). If Bank One does so, the burden shifts back to Terry to show that Bank One's stated reason is a pretext for discrimination. Contreras v. Suncast Corp., 237 F.3d 756, 760 (7th Cir. 2001). Although the burden of producing evidence shifts between the employee and the employer, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993), quoting Burdine, 450 U.S. at 253.
Though the Court refers to Terry's burden to "show," "establish," or "demonstrate" pretext, the Court recognizes that to survive summary judgment on this issue Terry must only "show," "establish," or "demonstrate" that there remains a material issue of fact regarding pretext.
Bank One offers the following explanation for the pay disparity between Terry and Wilson:
Bank One paid Wilson a higher salary because he had a more extensive HR background and qualifications and was going to take on greater responsibilities associated with the rapidly expanding line of business Lexington market. On the other hand, Terry did not possess the requisite years of broad HR experience needed to qualify her for a higher paying Human Resources Consultant position and was, consequently, going to have fewer duties and responsibilities in the Fishers geographic area than Wilson.
[Docket No. 46., p. 14]. As evidence of this explanation, Bank One offers its perception of Terry's human resources experience compared with that of Wilson's. According to Graves:
Terry's prior work experience in HR entailed four and a half years in an HR generalist role in an academic environment, not a business enterprise. Terry had Bank One staffing experience as a Senior Recruiter from July 1998 through September 2001, which was narrowly focused on recruitment. Taken has a whole, Terry did not possess the requisite years of broad HR experience needed to qualify her for a higher paying grade 6 Human Resources Consultant position.
[Graves Aff., ¶¶ 7-8]. In contrast, "Wilson had an extensive HR background with a broad range of experience in a number of HR functions. Wilson had been employed by a law firm for twelve years and a large production facility of a major manufacturer for three years." [Graves Aff., ¶ 14]. "Employers may prefer and reward experience, believing it makes a more valuable employee, for whatever reason. And it is not [the Court's] province to second-guess employers' business judgment."Fallon v. State of Ill., 882 F.2d 1206, 1212 (7th Cir. 1989) (citations omitted). The Court finds that Bank One has met its burden of providing a non-discriminatory reason for the pay disparity between Terry and Wilson. Accordingly, the burden shifts back to Terry to show that Bank One's reason is pretextual.
A plaintiff can defeat a motion for summary judgment on the issue of pretext by producing evidence that calls into question the employer's proffered reasons for the employment decision. "This means the plaintiff must show by a preponderance of the evidence that the proffered explanation is false and that `discrimination was the real reason' for the adverse employment action." Volovsek v. Wisconsin Dept. of Agr., Trade and Consumer Protection, 344 F.3d 680, 692 (7th Cir. 2003),quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993). To establish pretext, Terry must demonstrate that Bank One's articulated reason for the pay disparity either: (1) had no basis in fact; (2) did not actually motivate Bank One's decision; or (3) was insufficient to motivate Bank One's decision. See Grayson v. O'Neill, 308 F.3d 808, 820 (7th Cir. 2002); Velasco v. Illinois Dept. of Human Serv., 246 F.3d 1010, 1017 (7th Cir. 2001). Pretext does not mean a mistake, but rather, "`a phony reason for some action.'" Logan v. Kautex Textron N. Am., 259 F.3d 635, 640 (7th Cir. 2001), quoting Russell v. Acme Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). See also Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000) (plaintiff must demonstrate that an employer's proffered explanation for an employment decision is a dishonest explanation, rather than merely an error).
In response to Bank One's articulated reason for the pay disparity, Terry spends a considerable portion of her brief comparing her qualifications and experience with that of Wilson. However, as Seventh Circuit precedent makes clear, such comparisons are not particularly cogent. In Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002), the Seventh Circuit held:
[W]here an employer's proffered non-discriminatory reason for its employment decision is that it selected the most qualified candidate, evidence of the applicants' competing qualifications does not constitute evidence of pretext "unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue." In other words, "[i]n effect, the plaintiff's credentials would have to be so superior to the credentials of the person selected for the job that `no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.'"
. . . As we have stated, "[n]o matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [Title VII] does not interfere." Rather, this "court must respect the employer's unfettered discretion to choose among qualified candidates." If we were to allow a jury to evaluate competing credentials to determine whether the employer's assertion that it selected the best candidate was pretextual, the jury would in most cases be replacing the employer's personnel department. Yet neither the judge nor the jury is "as well suited by training and experience to evaluate qualifications for high level promotion in other disciplines as are those persons who have trained and worked for years in that field of endeavor for which the applications under consideration are being evaluated."Millbrook, 280 F.3d at 1180-81 (internal citations omitted).
Here, Terry's comparison of her qualifications with that of Wilson's is nothing more than a rendition of Terry's personal assessment of their respective qualifications and does not create an issue of material fact. See Olsen v. Marshall Ilsley Corp., 267 F.3d 597, 602 (7th Cir. 2001) ("An employee's perception of his own performance, however, cannot tell a reasonable factfinder something about what the employer believed about the employee's abilities.");Williams v. United Technologies Carrier Corp., ___ F. Supp.2d ___, 2004 WL 614997, at *11 (S.D. Ind. Mar. 25, 2004) (plaintiff's perception of qualifications did not create question of material fact on issue of pretext). Accordingly, Terry's qualification comparison, by itself, is not enough to jump the pretext hurdle.
For example, in her affidavit, Terry states that she reviewed Wilson's resume and that "Ambrose Wilson does not and did not possess an extensive human resource background nor was he more qualified for the position of Human Resource Consultant II than [Terry]." [Terry Aff., ¶¶ 15, 16]. Bank One objects to Terry's affidavit to the extent it contains conclusory self-serving statements that are without factual foundation. [See Docket No. 58, pp. 12-14]. Bank One's objection is well taken. As noted above, Terry's belief of her own qualifications, or those of Wilson, does not provide insight on what Bank One believed regarding those qualifications. Moreover, the Seventh Circuit, "on numerous occasions, has made it clear that self-serving affidavits, without any factual support in the record, are insufficient to defeat a motion for summary judgment." Palmer v. Marion County, 327 F.3d 588, 596 (7th Cir. 2003).
Bank One also objects to the affidavit of Rita Mclntosh, a former Bank One Vice President of Human Resources, claiming that McIntosh's testimony is neither relevant nor based on personal knowledge. Again, Bank One's objections are well taken. First, like Terry's affidavit, McIntosh's views of Wilson's and Terry's respective qualifications are not particularly relevant. See Schaffner v. Glencoe Park Dist., 256 F.3d 616, 622-23 (7th Cir. 2001) (affidavit of plaintiff's co-workers regarding plaintiff's performance does not create issue of fact with respect to what employer believed). Finally, McIntosh's comments with respect to Terry's offer letter are inadmissible. As Bank One correctly points out, "McIntosh has no foundation or personal knowledge to comment on a letter she did not write and which was written one year after she had left Bank One." [Docket No. 58, p. 8]. Accordingly, the Court did not consider McIntosh's affidavit in rendering this decision.
Terry, however, does not solely rely on comparative evidence. "TheMillbrook standard is controlling in cases in which the plaintiff relies exclusively on evidence of the applicants' comparative qualifications; however, it is not controlling where the plaintiff offers other evidence of retaliation [or discrimination] in addition to the differences in relative qualifications." David v. Caterpillar. Inc., 324 F.3d 851, 862 (7th Cir. 2003), citing Millbrook, 280 F.3d at 1183. As additional evidence of pretext, Terry points to Bank One's own argument and documentary evidence. [Docket No. 52, pp. 15-16]. It is undisputed that Bank One's HRC II position was compensated at payband 6. [Graves Aff., ¶ 5; Pl.'s Ex. V]. Bank One contends that Terry was unqualified for the higher paying HRC II position and that the October 1, 2001 offer letter was simply a clerical mistake. Yet Terry's 2002 Development Plan, dated January 28, 2002 and signed by Graves, indicates Terry's job title as "Human Resources Business Partner, PB6." [Pl's Ex. VI]. Such evidence could be another clerical error. However, a reasonable jury could also determine that Bank One hired Terry for the HRC II position and failed to pay her the appropriate pay grade. If the jury reaches such a conclusion, it could also reasonably — and logically — reject Bank One's nondiscriminatory reason that Terry was unqualified for the position. In other words, Bank One "has constructed a plausible explanation that accounts for [the pay disparity]. But that explanation could have been constructed post hoc — that is in preparation for trial. It may have nothing to do with the actual reason for [the pay disparity]." Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 634 (7th Cir. 1996).
Moreover, according to Terry, she questioned both Cartwright and Graves regarding her placement in payband 5 rather than 6 at the time she accepted the position. Graves responded that Terry would receive her payband in April 2002. [Terry Dep., pp. 62-64]. Notably, what Graves did not tell Terry was that she had been hired as a HRC I, not a HRC II. [Terry Dep., pp. 164-65; Terry Aff., ¶ 10]. In a similar situation, the Seventh Circuit stated:
When Emmel asked Walsh why she was not promoted, the appropriate answer, if it were true, was that she was not qualified because she did not have recent supervisory experience (or for that matter she worked in the wrong zone). If true, this would certainly be an appropriate response. Even if not entirely true, it would have been a "better" response in that it might not have caused this lawsuit. So not only did Walsh not `truthfully" answer with this explanation at the seemingly appropriate time, he did not even fabricate it as an answer at that time. An obvious inference, apparently the one the jury drew, is that it was not the true reason at the time Coca-Cola made its decision.Emmel, 95 F.3d at 634. The same could be said here. Graves' and Cartwright's silence regarding Terry's alleged lack of qualifications and HRC I position at the time of the offer, if believed by the jury, could lead the jury to disbelieve Bank One's stated reason for the pay disparity. In short, while Terry's evidence is certainly thin, it is enough to get to a jury on this issue. Accordingly, Bank One's motion for summary judgment with respect to Terry's disparate wage claim under Title VII and § 1981 is DENIED.
C. Additional Employment Opportunities and Relocation Benefits.
Terry also alleges that Bank One discriminated against her because of her race in violation of 42 U.S.C. § 1981 because Bank One did not offer Terry "a position outside of Indiana when her job was eliminated and, unlike Ambrose Wilson, she had no relocation benefits with which to relocate if she had been offered a position outside of Indiana." [Compl., ¶ 25]. With respect to these claims, Terry's argument is somewhat unclear given Terry's complete failure to develop these claims or otherwise respond to Bank One's summary judgment motion on these issues. Indeed, Bank One correctly points out that Terry "makes no response to the points raised by Bank One in its Brief on those issues, and thus Bank One's evidence on these points remains unrefuted." [Docket No. 58, p. 16].
At first blush, Terry's employment opportunities and relocation benefits claims appear to be a wrongful discharge claim. In other words, Bank One wrongfully terminated Terry because other positions were available and Bank One failed to offer and relocate Terry to one of those positions. Yet, in Terry's brief, she explicitly states that "[t]his is not a discriminatory discharge case." [Docket No. 52, p. 10]. Bank One has couched these claims in terms of a failure to hire claim. Regardless of how viewed, Terry has failed to present any argument or evidence in response to Bank One's summary judgment motion that would allow these claims to survive. For example, Terry has not identified any positions that were available and for which she was qualified at the time of her discharge. Nor has she identified a similarly situated, non-African-American who was terminated but offered additional employment opportunities or relocation benefits. Accordingly, Bank One's motion for summary judgment with respect to these claims is GRANTED.
Wilson is not similarly situated in this regard. Nothing in the record indicates that Wilson was subject to the reduction-in-force. With respect to relocation benefits, Terry's testimony makes clear that Wilson's relocation benefits were offered at the time of his hire, not discharge. [Terry Dep., pp. 104-05].
V. Conclusion.
For the reasons set forth above, Bank One's motion for summary judgment with respect to Terry's Title VII and § 1981 claims alleging failure to provide additional employment opportunities and relocation benefits is GRANTED. Bank One's motion for summary judgment is DENIED with respect to Terry's Title VII and § 1981 salary discrimination claims. The final pretrial conference scheduled for June 8, 2004 at 1:30 p.m. and jury trial set for June 15, 2004 remain as scheduled. The parties are reminded to strictly comply with all deadlines set forth in the Case Management Plan regarding submission of trial-related materials.
SO ORDERED.