UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

OPINION AND ORDER 

In this Title VII lawsuit, Plaintiff pro se Gayle Cole alleges that Defendant, Indiana 

Department of Workforce Development, racially discriminated against her, which eventually led 

to her discharge. Plaintiff also contends that Defendant retaliated against her for complaining 

about race discrimination and subjected her to a hostile work environment. Plaintiff, an AfricanAmerican woman, worked as an unemployment insurance claims deputy for Defendant from 

2009 until September 2012. Defendant, in its Motion for Summary Judgment, counters 

Plaintiff’s version of events and maintains that it fired her because she consistently failed to meet 

established productivity benchmarks. Defendant asserts that this failure was the sole factor in its 

decision. 

A. Background 

Plaintiff worked for Defendant in different part and full-time capacities from 2000 until 

2009, when she accepted a job offer from Defendant as a Claims Deputy 5 in its Fort Wayne 

facility. (DE 43-1, Mem. at 1.) Defendant describes this position as requiring an individual to 

“analyze[] information and make[] eligibility determinations in conformance with state and 

federal unemployment laws . . . [and that] [t]hese determinations must meet stringent timeliness 

Civil Action No. 1:13-CV-347-JVB 

Gayle M. Cole, 

 

Plaintiff, 

v. 

 

Indiana Department of Workforce 

Development, 

Defendant.
2 

and quality standards . . . set by federal and state authorities.” (DE 43-2, Ex. B at 1.) After a 

week in this new position, Defendant discharged Plaintiff. (DE 43-5, Ex. E at 1.) Neither party 

describes what led to this discharge. Nevertheless, this oversight is inconsequential because 

Defendant reinstated Plaintiff six weeks later, paid her back pay, and she signed a release that 

prevents her from litigating this discharge. (Id. at 1–3.) 

 Plaintiff continued to struggle after her reinstatement. Defendant required claims deputies 

to address 20 issues per day, but Plaintiff routinely failed to meet this productivity standard. For 

instance, for the 37-week period spanning June 2010 through February 2011, Plaintiff never met 

this standard. (DE 43-6, Ex. F at 1–2.) Because of this failure, Plaintiff’s supervisor gave her an 

overall performance rating of “Needs Improvement” on her 2010 annual evaluation and 

attributed this to Plaintiff’s inability to perform “at an adequate rate which inhibits her ability to 

meet required production levels.” (DE 43-7, Ex. G at 3–4.) 

 Following this evaluation, Plaintiff failed to improve her production levels and her 

supervisor eventually placed her on a Work Improvement Plan (WIP) in March 2011. (DE 43-9, 

Ex. I at 1.) Plaintiff’s WIP, which spanned eleven weeks, required her to work with a supervisor 

and a “Program Specialist 4” to improve her productivity and meet with these two individuals 

weekly to discuss progress and to “determine what future steps can be taken.” (Id.) Plaintiff’s 

WIP also required her to maintain a production level of at least 70% during the first two weeks 

of the program and between 80-100% during the last two weeks. (DE 43-9, Ex. I at 1.) Plaintiff 

met the minimum 80% production level during six of the eleven weeks of her WIP and her 

supervisor released her from the program. (DE 43-6, Ex. F at 2.) 

Upon release from the WIP in May 2011, Plaintiff’s productivity levels again slipped 

below the 80% minimum standard. In fact, in the year following her WIP Plaintiff only met the 

minimum standard six weeks. Because of this precipitous and sustained drop in productivity, 
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Plaintiff’s supervisor met with her in July 2011. During this meeting, her supervisor relayed that 

her post-WIP performance was unsatisfactory and a failure to consistently meet minimum 

productivity standards might result in disciplinary action. (DE 43-11, Ex. K. at 1.)

Approximately two weeks later, another supervisor divided Plaintiff’s assignments amongst her 

coworkers because she was falling so far behind. (DE 43-12, Ex. L at 1–2.) 

The following month, in August 2011, Plaintiff filed a Civil Service Employee Complaint 

alleging that Defendant improperly denied her a pay raise because of racial discrimination and 

retaliation. (DE 43-13, Ex. M at 1–2.) Plaintiff’s complaint was dismissed because her annual 

evaluation, which characterized her overall performance as “Needs Improvement,” made her 

ineligible for a pay raise. (DE 43-14, Ex. N at 1.) The state official reviewing her complaint also 

noted that the comparators cited by Plaintiff were inappropriate because none of them had 

received negative evaluations. (Id.) 

In November 2011, Plaintiff’s supervisor reprimanded her for an unsatisfactory number 

of “negative issues” and for passing only five of her twelve quality assurance reviews. (DE 43-

16, Ex. P at 2.) Plaintiff’s supervisor also noted that Plaintiff’s “production, timeliness, and 

quality are all at unacceptable levels.” (Id.) Plaintiff filed a Civil Service Employee Complaint 

arguing that this reprimand was unjust and singled her out unfairly. (DE 43-18, Ex. R at 1–4.)

Defendant’s Human Resources Director dismissed Plaintiff’s Complaint because she found 

“[t]he discipline administered was appropriate due to [Plaintiff’s] high number of issues that are 

untimely” and her continued low productivity. (DE 43-19, Ex. S at 1.) Plaintiff’s appeal of this 

decision was also denied. (DE 43-20, Ex. T at 1.) 

In January 2012, Plaintiff received her 2011 annual evaluation. (DE 43-23, Ex. W at 1.) 

Plaintiff’s supervisor stated that she was not meeting expectations for teamwork, drive for 

results, motivation/initiative, and organizational commitment. (Id. at 3–4.) Correspondingly, 
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Plaintiff received an overall performance rating of “Does Not Meet Expectations,” which is the 

lowest designation possible. Defendant suspended Plaintiff for five days in February 2012, 

because she again failed to meet minimum productivity standards in December and January. (DE 

43-24, Ex. X at 1.) In response, Plaintiff filed a Civil Service Employee Complaint (DE 43-25, 

Ex. Y.), which her Human Resources Director denied. (DE 43-26, Ex. Z at 1.) 

Defendant eventually discharged Plaintiff on September 28, 2012, because of her 

continued inability to meet productivity standards. (DE 43-28, Ex. BB at 1.) Plaintiff maintained 

that her discharge was a continuation of Defendant’s ongoing pattern of race discrimination and 

retaliation and filed another Civil Service Employee Complaint to combat her discharge. (Id.)

The State Employees’ Appeals Commission consolidated Plaintiff’s complaints regarding her 

reprimand, suspension, and discharge. After a four-day hearing, the Administrative Law Judge 

(ALJ) found that Defendant’s “employment decisions were not caused by unlawful race 

discrimination, harassment, or retaliation.” (Id. at 2.) Two months after the ALJ’s decision, 

Plaintiff filed this Title VII action alleging Defendant’s actions constituted race discrimination, 

retaliation, and subjected her to a hostile work environment. 

B. Summary Judgment Standard 

A court must grant a motion for summary judgment “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 a 

judgment as a matter of law.” Fed. R. Civ. P. 56(c). Rule 56(c) also requires the entry of 

summary judgment, after adequate time for discovery, against a party “who fails to make a 

showing sufficient to establish the existence of an element essential to that party’s case, and on 
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which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 

322 (1986). 

 A party seeking summary judgment bears the initial responsibility of informing a court of 

the basis for its motion and identifying those portions of the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, which it believes 

demonstrate the absence of a genuine issue of material fact. Id. at 323. If the moving party 

supports its motion for summary judgment with affidavits or other materials, it thereby shifts to 

the non-moving party the burden of showing that an issue of material fact exists. Keri v. Bd. of 

Trust. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). 

 Rule 56(e) specifies that once a properly supported motion for summary judgment is 

made, “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set 

forth specific facts to establish that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

 In viewing the facts presented on a motion for summary judgment, a court must construe 

all facts in a light most favorable to the non-moving party and draw all legitimate inferences and 

resolve all doubts in favor of that party. Keri, 458 F.3d at 628. A court’s role is not to evaluate 

the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the 

matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v. 

Liberty Lobby, 477 U.S. 242, 249–50 (1986). 

C. Defendant’s Motion for Summary Judgment 

Defendant has filed a motion for summary judgment on all three of Plaintiff’s claims. 

Defendant, in accordance with Local Rule 56-1(f) provided Plaintiff, a pro se litigant, with a 

notice of the consequences of failing to respond to a summary judgment motion. Plaintiff filed a 
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Response but failed to establish the prima facie elements of any of her claims. Consequently, the 

Court grants Defendant’s Motion for Summary Judgment (DE 41). 

 (1) Plaintiff’s Title VII Racial Discrimination and Retaliation Claims 

Title VII makes it unlawful for an employer to “discriminate against any individual . . . 

because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff pursuing a Title VII 

race discrimination claim can survive summary judgment through the direct or indirect method 

of proof. Mullin v. Temco Machinery, Inc., 732 F.3d 772, 776 (7th Cir. 2013). In this case, 

Plaintiff has not presented any direct or circumstantial evidence that supports an inference of 

discrimination. Alexander v. Casino Queen, Inc., 739 F.3d 972, 979 (7th Cir. 2014). Similarly, 

for her retaliation claim, Plaintiff provides no direct evidence of a causal connection between her 

statutorily protected activity and any adverse employment action. Accordingly, the Court 

presumes Plaintiff is attempting to survive summary judgment on her race discrimination and 

retaliation claims by employing the indirect method. 1

 Under the indirect method, a plaintiff must demonstrate that: (1) they are members of a 

protected class; (2) they were meeting their employer’s legitimate expectations; (3) they suffered 

an adverse employment action; and (4) at least one similarly situated employee, not in their 

protected class, was treated more favorably. Rodgers v. White, 657 F.3d 511, 517 (7th Cir. 2011). 

If Plaintiff can establish a prima facie case, then “the burden shifts to the defendant to articulate a 

legitimate, nondiscriminatory reason for [the adverse employment action] which if believed by 

the trier of fact, would support a finding that unlawful discrimination was not the cause of the 

employment action.” Petts v. Rockledge Furniture, LLC, 534 F.3d 715, 725 (7th Cir. 2008). If 

 

1

 Plaintiff raises her discrimination and retaliation claims under Title VII. For both claims, Plaintiff’s prima facie 

burden includes demonstrating that she was meeting her employer’s legitimate expectations and similarly situated 

employees outside her protected class were treated more favorably. Hudson v. Chicago Transit Auth., 375 F.3d 552, 

559 (7th Cir. 2004). As a result, the Court can analyze both claims concurrently. 
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the defendant meets this burden, the burden shifts back to the plaintiff to prove that the proffered 

reason is a pretext for race discrimination. Id. A plaintiff pursuing a claim under the indirect 

method bears “[t]he ultimate burden of persuading the trier of fact that the defendant 

intentionally discriminated against the . . . plaintiff.” Contreras v. Suncast Corp., 237 F.3d 756, 

760 (7th Cir. 2001). 

In this case, Plaintiff fails to satisfy two prongs of her prima facie case. First, Plaintiff has 

not demonstrated that she was meeting her employer’s legitimate expectations. As recounted 

above, Defendant has provided voluminous evidence that demonstrates that Plaintiff was not 

meeting the minimal level of productivity required and Defendant informed her repeatedly of 

this failure. Moreover, Defendant tried to provide Plaintiff with resources and additional training 

necessary to achieve her productivity goals, but to no avail. Second, Plaintiff has not alleged any 

comparators outside her protected class that Defendant treated more favorably. Plaintiff failed to 

provide evidence that employees of another race, or employees who did not file a discrimination 

complaint, were treated more favorably than she was. Instead, Defendant, albeit unnecessarily, 

provided evidence that it disciplined and discharged white employees with similar performance 

and productivity issues. Even though the Court liberally construes Plaintiff’s pro se response, she 

has still failed to establish a prima facie case for her Title VII discrimination and retaliation 

claims. Accordingly, the Court grants Defendant’s motion for summary judgment as it addresses 

these two claims. 

(2) Plaintiff’s Title VII Hostile Work Environment Claim 

Plaintiff’s final claim alleges that Defendant subjected her to a hostile work environment. 

Plaintiff alleges that her supervisors created this hostile work environment by not selecting her 

for overtime assignments or special projects and placing her on a Work Improvement Plan 
8 

(WIP). Plaintiff maintains that the WIP humiliated her in front of her co-workers because a 

supervisor came and sat with her three to four times per week to monitor her work. 

In a hostile work environment context, an employer violates Title VII when “the 

workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently 

severe or pervasive to alter the conditions of the victim’s employment and create[s] an abusive 

working environment.” Mendenhall v. Mueller Streamline Co., 419 F.3d 686, 691 (7th Cir. 2005) 

(quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993)). To maintain a hostile work 

environment claim, a plaintiff must prove “(1) that the work environment was both subjectively 

and objectively offensive; (2) that the harassment was based on membership in a protected class; 

(3) that the conduct was severe or pervasive; and (4) that there is a basis for employer liability.” 

Id. To satisfy the first prong, the plaintiff must subjectively believe that the harassment was 

sufficiently severe or pervasive to have altered the working environment, and the harassment 

must be sufficiently severe or pervasive, from the standpoint of a reasonable person, to create a 

hostile work environment. Turner v. The Saloon, Ltd., 595 F.3d 679, 685 (7th Cir. 2010). The 

factors that a court may consider in deciding whether the environment is hostile include “the 

frequency of the discriminatory conduct; its severity; whether it is physically threatening or 

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an 

employee’s work performance.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 982 (7th Cir. 

2014) (citations omitted). 

In this case, Plaintiff has failed to provide any evidence that Defendant’s conduct was: 

objectively offensive, due to her race, severe and pervasive, or interfered with her work 

performance. While Plaintiff maintains that the WIP was subjectively humiliating, she does not 

provide any evidence to support her contention that it was objectively offensive. The WIP 

involved a supervisor observing her for one hour per day and a follow-up meeting to discuss her 
9 

production. This sort of performance-based improvement program appears to be a reasonable 

mechanism to assist an underperforming employee. 

Nevertheless, even if the Court deemed the WIP as objectively offensive, which it does 

not, Plaintiff has not demonstrated that Defendant put her on a WIP because of her race. Instead, 

Defendant has supplied uncontroverted productivity and performance records that show 

Defendant implemented the WIP after Plaintiff failed to meet productivity goals for an extended 

period. Moreover, the WIP was not pervasive, because as soon as Plaintiff’s productivity 

improved, she no longer had to work under these conditions. Accordingly, the Court grants 

Defendant’s motion for summary judgment regarding Plaintiff’s Title VII hostile work 

environment claim. 

E. Conclusion 

 The parties present two vastly different stories of what occurred, but Plaintiff has failed 

to provide sufficient evidence to support any of her claims. Accordingly, the Court grants 

Defendant’s motion for summary judgment (DE 41). 

 SO ORDERED on September 23, 2015. 

 s/ Joseph S. Van Bokkelen 

 JOSEPH S. VAN BOKKELEN 

 UNITED STATES DISTRICT JUDGE