UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LETICIA HILL, )

Plaintiff, )

) Case No. 12-cv-3917

v. ) Judge Sharon Johnson Coleman

)

FEDERAL EXPRESS, INC., )

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Leticia Hill (“Hill”) brings this action against Defendant Federal Express, Inc.

(“FedEx”) alleging that FedEx discriminated and retaliated against her for filing complaints with

the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Illinois Department of

Human Rights (“IDHR”) in violation of 42 U.S.C. §2000e et seq. and 42 U.S.C. § 1981. FedEx

moves for summary judgment on all counts. For the following reasons, FedEx’s motion is granted

in its entirety.

Background

Hill is an African American woman who was employed as a courier at FedEx for 23 years

prior to her termination in 2010. As a courier, Hill was responsible for, among other things, the

timely delivery and pick-up of packages. Between February 2009 and July 2010, Hill reported to

Dorise Monroe (“Monroe”), an African American Operations Manager at FedEx. On March 12,

2009, Monroe informed Hill, via FedEx’s Online Counseling and Complaint System, that her

attendance rating was below the company’s acceptable level. FedEx’s Acceptable Conduct and

Performance Improvement policies provide that receipt of three disciplinary notifications for failure

to comply with company policies may result in termination. 

On June 25, 2009 Monroe reviewed Hill’s delivery records after an Operation Support

Specialist informed her of Hill’s excessive use of the DEX08 exception code. This code indicates

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when a delivery is attempted, but the business is closed or the resident is not home. Hill’s delivery

records revealed that between June 1 and June 25, 2009, she scanned packages with a DEX08 code

and immediately thereafter rescanned the same packages with a proof of delivery scan. The parties

dispute the implications of double scanning packages. FedEx states that this process can artificially

inflate productivity numbers or make it appear as though a courier made more stops than actually

performed. (Dkt. 61, Ex. 4; Def. Stmt. of Facts at ¶ 21). Hill argues that double scanning does not

artificially increase productivity numbers because double scanning is commonplace in the shipping

business where a courier may knock on a door for a delivery, proceed to leave upon no response,

but then actually complete the delivery if the recipient appears before the courier actually leaves. 

(Dkt. 70; Pl. Resp. to Def. Stmt. of Facts at ¶ 21). 

On June 26, 2009, Monroe suspended Hill with pay pending an investigation of Hill’s use of

the DEX08 code. Following the investigation, on July 1, 2009 Hill was terminated for double

scanning which FedEx concluded was a falsification of delivery records. FedEx provides an

internal EEO complaint procedure for discrimination and harassment claims as well as an internal

grievance procedure known as the Guaranteed Fair Treatment Procedure (“GFTP”) for employees

to dispute disciplinary actions or other employment decisions such as the issuance of warning

letters, performance reminders, or terminations. Pursuant to the grievance procedure, there are

three levels of review: first by FedEx management, followed by an officer review, and a final

review by an appeals board. 

Following her termination for falsification of records on July 1, 2009, Hill initiated the first

step of her GFTP review claiming that her termination was unfair. In her complaint, Hill explained

her understanding of double scanning and stated that she was unaware that double scanning

constituted a falsification of records. Additionally, immediately after filing her grievance

complaint, Hill also filed a complaint with the IDHR and the EEOC on July 2, 2009. FedEx

management decided to uphold her termination. On July 16, 2009, during the second step of her

grievance complaint review, Hill submitted a written statement arguing that her termination was

unfair because “everyone at the BDF-A station did or has done” double scanning. Hill again argued

that she was never informed that double scanning constituted a falsification of records and stated

that she believed her termination was in actuality an attempt by Steve Condo, a Senior Station

Manager, to get back at her for openly disagreeing with him and stating that he was unfair at a

meeting. 

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On July 31, 2009 FedEx Vice President Michael St. Martin (“St. Martin”) reviewed Hill’s

grievance complaint at the second level of the internal grievance process. St. Martin decided to

modify management’s decision at the first level of review to terminate Hill’s employment. St.

Martin stated in a letter to Hill that even though she was being reinstated based on individual

consideration, a review of the facts demonstrated that she had violated FedEx’s policy by falsifying

records. St. Martin also informed Hill that she would receive a warning letter and that any further

conduct incidents could lead to more severe discipline including termination. Hill challenged the

issuance of the warning letter through the internal grievance procedure, but the decision to issue the

warning letter for falsification of records was upheld. 

On August 17, 2009, Hill returned to work at FedEx, but refused to sign the warning letter

because she claimed it was discriminatory; however, Hill testified that she did not believe her

reinstatement with the warning letter was somehow based on her race nor did she believe that it was

retaliatory. (Hill Dep. at 113:15-21). On August 21, 2009 Hill received a second disciplinary letter

indicating that 1) her attendance record had fallen below acceptable FedEx standards; 2) this was

her second disciplinary notification within twelve months; and 3) if she received another

disciplinary notification within twelve months, she could be terminated. (Dkt. 61, Def. Stmt. of

Facts at ¶¶ 38,39; Dkt. 70, Pl. Resp. at ¶¶ 38, 39). Hill did not file a grievance complaint

concerning this August 21, 2009 performance reminder. 

On July 22, 2010, Hill failed to timely deliver 29 packages, in accordance with FedEx’s

customer guarantees. Hill was suspended with pay that day and following an investigation,

received her third written performance reminder for the service failures. Hill was subsequently

terminated and immediately filed a discrimination charge with the EEOC and the IDHR on July 29,

2010. Hill also filed an internal grievance complaint. Id. On August 19, 2010, Hill received notice

that a decision on her grievance complaint was being deferred until an investigation was completed

as to her discrimination claims. Hill was also instructed to file an Internal EEO packet to be used

by FedEx in investigating her discrimination claims. FedEx’s internal investigation of Hill’s

discrimination claims was completed on October 22, 2010 with FedEx concluding that there were

no FedEx policy violations. Hill’s internal grievance procedure then resumed and on October 25,

2010 Hill’s termination was upheld. 

Legal Standard

Summary judgment is appropriate when no genuine issue of material fact exists and a party

is entitled to judgment as a matter of law. Johnson v. General Bd. of Pension & Health Benefits of

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the United Methodist Church, 733 F.3d 722, 727 (7th Cir. 2013); see also Fed. R. Civ. P. 56(c). 

This standard places the initial burden on the moving party to identify those portions of the record

that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (internal quotations

omitted). Once the moving party meets this burden of production, the non-moving party “must go

beyond the pleadings” and identify portions of the record demonstrating that a material fact is

genuinely disputed. Id.; see also Fed. R. Civ. P. 56(c). All inferences drawn from the facts must be

construed in favor of the non-movant. 

Discussion

Hill originally filed suit alleging that FedEx terminated her employment in retaliation for

her filing a complaint with the IDHR in violation of 42 U.S.C. § 2000e-3(a) and 42 U.S.C. § 1981

(Counts I and II). Hill also alleged that FedEx deferred her internal grievance process in retaliation

for her filing a complaint with the IDHR (Count III). Hill has since withdrawn Counts I and II

asking this Court to dismiss those counts without prejudice. Accordingly, Hill’s only remaining

claim is her retaliation claim. To prevail on a retaliation claim under § 1981, Hill must either show

direct evidence of discriminatory motive or intent, or rely on the indirect burden-shifting method

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817

(1973). See Johnson v. General Bd. of Pension & Health Benefits of the United Methodist Church,

733 F.3d 722, 727 (7th Cir. 2013).

1. Direct Method

Evidence of retaliation is direct when, if believed by the trier of fact, it will prove the

particular fact in question without reliance on inference or presumption. Harper v. C.R. Eng., Inc.,

687 F.3d 297, 307 (7th Cir. 2012) (citing Pitasi v. Gartner Grp., Inc., 184 F.3d 709, 714 (7th Cir.

1999)). Under the direct method, Hill must present direct evidence of (1) her statutorily protected

activity; (2) a materially adverse action taken by FedEx; and (3) a causal connection between the

two. Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012). The causal connection requirement may be

shown through direct evidence, which is rare because “it would entail something akin to an

admission by the employer,” or through a “‘convincing mosaic’ of circumstantial evidence that

would permit the same inference without the employer’s admission.” O’Leary v. Accretive Health,

Inc., 657 F.3d 625, 630 (7th Cir. 2011).

The sole allegation remaining after Hill’s dismissal of Counts I and II is that the deferment

of her grievance process was done in retaliation for her filing an IDHR complaint. As to the first

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factor under the direct method, there is no real dispute that the filing of Hill’s IDHR complaint

constitutes protected activity. As to the second factor, while it is clear that “termination is

‘unquestionably a materially adverse action,’” it is less clear whether the deferment of Hill’s

grievance complaint while FedEx investigated her discrimination claims constitutes a materially

adverse action. Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 849 (7th Cir. 2007) (citing

Burnett v. LFW Inc., 472 F.3d 471, 482 (7th Cir. 2006)). Therefore, the question before this Court

is whether the deferment of Hill’s grievance procedure constitutes an adverse action for purposes of

a § 1981 retaliation claim. 

To support a retaliation claim, qualifying adverse acts must extend beyond those that affect

the terms and conditions of employment. Burlington Northern and Santa Fe Ry. Co. v. White, 548

U.S. 53, 126 S. Ct. 2405, 2412-13, 165 L. Ed. 2d 345 (2006). A materially adverse employment

action is “one that would dissuade a reasonable employee from making or supporting a claim of

discrimination.” Whigum v. Keller Crescent Co., 260 Fed. Appx. 910, 913 (7th Cir. 2008). Hill

fails to demonstrate that the deferral of her grievance procedure constitutes a materially adverse

action. A short delay in her internal grievance process, while FedEx investigated discrimination

claims, would not dissuade a reasonable employee from making or supporting a claim of

discrimination. FedEx sent Hill notice that it was deferring her GFTP until her discrimination

claims were fully investigated. Hill does not allege, nor does the record support, a finding that

FedEx discriminated against her throughout her grievance procedure because she filed a complaint

with the IDHR. Hill’s only argument is that deferring her grievance procedure was unfair because

other FedEx employees who filed a grievance complaint without filing an IDHR complaint did not

experience a delay in their internal grievance procedure. At most Hill asserts that the delay was

inconvenient, but not materially adverse. See Herron v. DaimlerChrysler Corp., 388 F.3d 293, 301

(7th Cir. 2004) (holding that a two-month delay in overtime payments did not constitute a

materially adverse employment action). 

Contrary to her assertions, Hill also fails to present sufficient circumstantial evidence

demonstrating an issue of fact under the direct method of proof. Hill merely provides conclusory

assertions that the delay in her internal grievance procedure was excessive, citing emotional

consequences, such as being kept on “pins and needles” and held in “suspense” as she awaited her

grievance decision. This is insufficient to survive summary judgment.

2. Indirect Method

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Hill also fails to demonstrate retaliation under the indirect burden-shifting method outlined

in McDonnell Douglas Corp. v. Green. To establish a prima facie case of discrimination under the

indirect McDonnell approach, Hill must present evidence that, “if believed by the trier of fact,

would show: (1) she was a member of a protected class; (2) her performance met her employer’s

legitimate expectations; (3) she suffered an adverse employment action; and (4) she was treated less

favorably than similarly situated employees who are in a different class.” Bio v. Fed. Express

Corp., 424 F.3d 593, 596 (7th Cir. 2005). If Hill meets this initial burden, the defendant, FedEx,

has the opportunity to articulate a legitimate nondiscriminatory reason for its action. If FedEx does

articulate such a reason, the burden shifts back to the Hill to show that the reason stated is

pretextual. Id. 

Although Hill is clearly a member of a protected class, she fails to establish that her work

performance met FedEx’s legitimate expectations. Quite to the contrary, Hill does not dispute any

of her failed delivery services or actions which eventually resulted in her termination. Hill admits

that she engaged in double scanning which eventually resulted in the first warning letter she

received upon returning to work at FedEx on August 17, 2009. Hill also admits that on August 21,

2009 her attendance record fell below acceptable FedEx standards and that she received a second

disciplinary letter concerning her attendance. Lastly, Hill admits that she failed to timely deliver 29

packages on July 22, 2009 as required. Despite her conclusory statements that she was given

warnings unjustly, Hill has not pointed to any evidence demonstrating that she performed well. See

Bhat v. Accenture LLP, 473 Fed. Appx. 504, 506 (7th Cir. 2012). Hill’s own evaluation of her work

cannot be imputed to FedEx and her conclusory statements are insufficient to permit her case to

survive summary judgment. Id. (citing Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657

F.3d 595, 603 (7th Cir. 2011) and Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir.

2003)). 

Moreover, Hill fails to show that she was treated less favorably than similarly situated

employees of a different class. Hill identifies three white and Hispanic employees, Marjorie

Gonzalez (“Gonzalez”), Lourdes Rodriguez (“Rodriguez”), and Michelle Whalen (“Whalen”), as

examples of employees who were treated differently than she was. In their affidavits, these

employees state generally that they had “service failures” or were late when delivering packages,

but that they were never given disciplinary warnings or terminated. Although this Court recognizes

that “a plaintiff need not present a doppelganger who differs only by having remained in the

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employer’s good graces, proposed comparators must be similar enough to the plaintiff to allow for a

meaningful comparison.” Dotson v. AT&T Servs., 524 Fed. Appx. 271, 274 (7th Cir. 2013). 

Here, Hill fails to present any facts demonstrating that the referenced employees were

similarly situated to allow for any meaningful comparison. There is no evidence that the employees

referenced made any complaints via the internal grievance process whatsoever, let alone any

evidence that this process continued without delay despite the employees filing a complaint with the

IDHR or the EEOC. To be similarly situated, the employee needs to have roughly the same

performance, qualifications, and conduct as the plaintiff. Sklyarsky v. Abm Janitorial Servs., 494

Fed. Appx. 619, 622 (7th Cir. 2012). Gonzalez and Whalen’s affidavits lack any information

detailing their performance or conduct outside of general statements that they had service failures or

delivered packages late. While Rodriguez’s affidavit provides slightly more information, stating

that she had about 10 to 15 late deliveries in one day, this admission is insufficient to show that the

magnitude of Rodriguez’s late deliveries and violations somehow mirrored Hill’s violations

including the 29 delivery failures in one day. Furthermore, it is unclear how many, if any,

disciplinary letters these employees received or whether these employees engaged in double

scanning or had inappropriate attendance records like Hill. These generic affidavits lacking any

substantiated details as to the employees’ performance records are simply insufficient to serve as

comparators. 

Lastly, this court will briefly note that even if Hill could make out a prima facie case, Hill

still fails to demonstrate that FedEx’s proffered nondiscriminatory reason for delaying her

grievance procedure was pretextual. The focus of the pretext inquiry is to determine “whether the

employer’s stated nondiscriminatory ground for the action of which the plaintiff is complaining is

the true ground of the employer’s action rather than being a pretext for a decision based on some

other, undisclosed ground.” Smiley v. Columbia College Chi., 714 F.3d 998, 1002-1003 (7th Cir.

2013) (citing Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th Cir. 2006)). FedEx has

offered the need to investigate Hill’s discrimination claims via its internal EEO review process as

an explanation for delaying Hill’s GFTP. Hill has proffered no evidence that this reason is

pretextual. Hill merely states that the purpose behind FedEx’s deferral was to retaliate, but makes

no substantiated arguments and points to no evidence that the internal EEO investigation was in fact

pretextual. 

Conclusion

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For the foregoing reasons, defendant FedEx’s motion for summary judgment is granted in

its entirety. Hill’s complaint is dismissed in its entirety.

IT IS SO ORDERED.

______________________

Date: March 6, 2014

____________________________

Sharon Johnson Coleman

United States District Judge

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