II. Disparate Impact Discrimination Claim

In Count III, Newkirk alleges that CMC’s promotion policy
results in a disparate impact on non-white people, who do not
receive promotions to high ranks. CMC contends that this claim
should fail because: 1) it was not raised in the EEOC complaint;
and 2) it lacks the statistics necessary to properly plead a
cause of action.

Generally, a Title VII plaintiff may bring only those claims
that were included in his EEOC charge, Cheek v. Western &

Southern Live Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994), or that

are ‘likely or reasonably related to the allegations of the
charge and growing out of such allegations.’” McKenzie v.
Illinois Dept. Of Transp., 92 F.3d 473, 482 (7th Cir.

1996) (quoting Jenkins v. Blue Cross Mut. Hosp. Ins., 538 F.2d
164, 167 (7th Cir. 1976)). Therefore, the Court must determine
whether there is a relation between the allegations in the EEOC
complaints and the disparate impact claim. “The claims are not
alike or reasonably related unless there is a factual
relationship between them. This means that the EEOC charge and
the complaint must, at minimum, describe the same conduct and

implicate the same individuals.” Id. (quoting Cheek, 31 F.3d at

501). More specifically, Newkirk’s EEOC claim is based on CMC’s
failure to promote her to the position of Human Resource Manager
based upon her race and age discrimination. Therefore, the

underlying individuals and conduct are the same.

12


Finally, in June 2000, CMC hired Eva Johnson (“Johnson”), a
thirty-year-old white female. Johnson had less overall human
experience than Newkirk, but had approximately three years human
resources supervisory experience.

On August 18, 2000, Newkirk filed a claim with the Equal
Employment Opportunity Commission (“EEOC”). On October 30, 2000,
the EEOC dismissed Newkirk’s Charge of Discrimination and sent
her a right-to-sue letter. On January 30, 2001, Newkirk timely
filed a complaint in this court which she subsequently amended
twice. CMC received the Complaint around February 2, 2001. On
this date, Newkirk was suspended and six months later, on August
3, 2001, she was fired. CMC filed this motion for summary
judgment in response to Newkirk’s Second Amended Complaint.

DISCUSSION

I. Summary Judgment Standards

Summary judgment should be granted when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with 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.” Fed. R. Civ. P. 56(c).
When making such a determination, the Court must construe the
evidence and make all reasonable inferences in favor of the non-

moving party. See Anderson vy. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986). Summary judgment is appropriate, however, when the

non-moving party “fails to make a showing sufficient to establish


position did not require any supervisory experience.
Additionally, Newkirk believes that this was not the requirement
in the past and the additional requirement of two years
supervisory experience was added after her director found out
that Newkirk was going to apply for the position. Newkirk had
one and half years supervisory experience in human resources,
along with more than twenty years human resources experience.
CMC denies that it added this requirement after it found out that
Newkirk was planning on applying for the position. Likewise,
since there are many underlying factual disputes surrounding
whether this issue, summary judgment on this issue is also
improper.

Finally, as previously explained, there are factual disputes
surrounding the issue of whether Newkirk did or did not perform
her job poorly, which can not to be decided on a summary judgment
motion.

Once a prima facie case is presented, a presumption of
discrimination arises, and the burden shifts to CMC to come
forward with evidence of a “legitimate, non-discriminatory
reason” for not allowing Newkirk to interview for the Human

Resource Manager position. St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 506 (1993). As stated, CMC asserts that Newkirk was
not allowed, and was not qualified, for the position of Human
Resource Manager because: 1) Newkirk possessed several “competent

minus” review ratings, which deemed her ineligible to participate


See McDonnell Douglas, 411 U.S. at 802. Here, Newkirk solely
attempts to prove discrimination through the indirect burden-
shifting method. CMC concedes that Newkirk has met the first and
third elements of the prima facie case; therefore, the Court need
only consider whether Newkirk has raised an issue of fact as to
the second and fourth prongs of the prima facie case.

First, the Court finds that Newkirk has raised an issue of
fact as to the second prong, namely whether she performed her job
satisfactorily. CMC points to evidence that Newkirk possessed a
record of poor performance which prevented her from qualifying
for the position. Newkirk admits that in her most recent job
performance evaluations, she received numerous competent minus
ratings in different categories and did make occasional mistakes.
However, Newkirk indicates that Applegate, her supervisor,
provided Newkirk with these performance appraisals and before
Applegate, Newkirk did not have any evaluation problems. Also,
Newkirk still received an overall “competent” rating from her
last performance, which, according to CMC documentation, means
“performance is consistently satisfactory”. (Def.’s Motion for
SJ, Bx. 1, Dep. Ex. 1). Therefore, because there are underlying
factual disputes as to this issue, summary judgment is not proper
at this time.

Newkirk has also raised an issue of fact as to the fourth
prong, whether CMC treated similarly-situated employees more

favorably. Initially, Newkirk provided evidence that a younger


the existence of an element essential to the party’s case, and on
which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also

Courtney v. Biosound, 42 F.3d 414, 418 (7th Cir. 1994).

II. Race and Age Discrimination Claims

Newkirk brings Count I alleging racial discrimination under
Title VII and Count II alleging age discrimination under the
ADEA. Since both Title VII and the ADEA discrimination claims are

analyzed in the same manner, Robinson v. PPG Indus., Inc., 23

F.3d 1159, 1162 (7th Cir. 1994), and since the evidence offered
to support both of these claims is essentially the same, the
Court will address them together.

There are two methods for demonstrating discrimination under
both Title VII and the ADEA. Under the first method, a plaintiff
may offer direct proof of discriminatory intent to meet his

burden of proof. Von Zuckerstein v. Argonne Nat’1l Lab, 984 F.2d

1467, 1472 (7th Cir. 1993). Alternatively, the indirect or
burden-shifting method, originally described in McDonnell Douglas
Corp v. Green, 411 U.S. 792 (1973), requires a plaintiff to
initially establish a prima facie case of racial and age
discrimination. Id. To establish a prima facie case of
discriminatory treatment, Newkirk must show that: (1) she is a
member of a protected class; (2) she performed her job
satisfactorily; (3) she suffered an adverse employment action;

and (4) CMC treated similarly~situated employees more favorably.


with no warnings on file.” (Pl. Stmt. Of Material Facts, Ex. A,
No. 4). Newkirk’s last performance evaluation, in August of
1999, resulted in an overall rating of “competent”, although
admittedly she received a lesser rating in various underlying
categories. CMC claims that despite the literal language under
the Minimum Qualification category of their Job Posting Program,
the company requires that an employee have a competent rating in
all rating categories and not simply as an overall rating.
Newkirk claims this reason is pretextual and supports this claim
with evidence of two cases where white employees were promoted
even though they had competent minus or lower in various areas of
their performance evaluations. CMC attempts to explain these
promotions as occurring because of in-house promotions, as
opposed to, through the Job Posting Program. Again, Newkirk
denies that these women were not promoted through the Job Posting
Program. Therefore, since there are many underlying factual
disputes surrounding this issue, summary judgment on this issue
is not proper.

Second, CMC contends that Newkirk did not possess the
requisite years of supervisory experience announced for the
position as Human Resource Manager. Newkirk and CMC agree that
the Job Posting for this position required a minimum of two years
human resource supervisory experience. However, Newkirk presents
evidence that the job description that Applegate originally

provided to her and on which she relied upon in applying for the


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Nameotacianed nies | George M. Marovich | Situ Sae it oter
CASE NUMBER 01 C 615 DATE 7/1/2003
CASE Newkirk vs. AAA Chicago Motor Club
TITLE
{In the following box (a) indicate the party filing the motion, e-g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]
DOCKET ENTRY:
qd) q Filed motion of { use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
(3) Oo Answer brief to motion due___. Reply to answer brief due.
(4) a Ruling/Hearing on setfor_ ss at_
(5) a Status hearing set for 8/13/03 at 11:00AM.
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___—ssetfor_— at.
(7) Oo Trial{set for/re-set for]on_____at
(8) ao ({Bench/Jury trial} [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)

OOFRCP4@m) © Local Rule 41.1. OFRCP41(a)(1) © FRCP41(a)(2).

a0 6 [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER. The Court denies
defendant’s motion for summary judgment as to Counts I and II and grants the motion as to Counts III and
IV. Nunc pro tunc 6/26/03.

adi) [For further detail see order attached to the original minute order.}

No notices required, advised in open court.

No notices required,
8 requ umber of notices

Notices mailed by judge’s staff. ‘GUL 0-2 7003

Notified counsel by telephone. se dockered

VY | Docketing to mail notices
Mail AO 450 form. _ . ,
JyNGs LoYLSIO SA si shin
Copy to judge/magistrate judge. yal
JUL 0 2 2088
courtroom ei th Hg lec gu date nied notice
1D deputy's Sich Wd

initials

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an insufficient rationale for CMC’s action. See Vakharia v.

Swedish Covenant Hosp., 190 F.3d 799, 807 (7th Cir. 1999).

Newkirk has presented evidence, discussed earlier in regards
to the prima facie case, to show that CMC’s stated reasons we Wen
not the actual motivation, but rather mere pre-text for
discrimination.

Therefore, this Court's ultimate inquiry at this juncture is
whether the evidence discussed previously, viewed in a light most
favorable to Newkirk, raises an inference that the real reason

for CMC's dismissal was discriminatory. See Jackson v. E.J. Brach

Corp., 176 F.3d 971, 983 (7th Cir. 1999). In short, although
there are certainly many benign and justifiable explanations for
Newkirk being denied a chance to interview for the promotion, the
Court finds that Newkirk has presented sufficient evidence
calling into question the sincerity of CMC's asserted reasons,
and that a factfinder could reasonably infer from the evidence
that unlawful discrimination was the true motivation. See Stalter

v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999). As

such, CMC's motion for summary judgment is denied with respect to
Newkirk's race and age discrimination claims.

Accordingly, the Court finds that there are genuine issues
as to any material fact which preclude summary judgment. For all
these reasons, summary judgment for Count I and II must be

denied.

iM


in CMC’s Job Posting Program; 2) Newkirk did not possess the
requisite years of supervisory experience announced for this
position; and 3) Newkirk possessed a record of poor performance.
These explanation serves as a sufficiently acceptable
non-discriminatory reason for not allowing Newkirk to interview
for said position.

Having set forth legitimate, non-discriminatory reasons for
not allowing Newkirk to apply for the promotion, the burden again
shifts back to Newkirk “to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for

discrimination.” Wilson v. AM Gen. Corp., 167 F.3d 1114, 1119-20

(7th Cir.1999). “Pretext means more than a mistake on the part of
the employer; pretext ‘means a lie, specifically a phony reason

for some action.’” Wolf v. Buss (America), Inc., 77 F.3d 914, 919

(7th Cir. 1996) (quoting Russell _v. Acme-Evans Co., 51 F.3d 64,

68 (7th Cir. 1995)). An employer’s proffered reasons are
pretextual if the employer's testimony contains such
inconsistencies as to call into question the employer’s overall

veracity. See Castleman v. Acme Boot Co., 959 F.2d 1417, 1422

(7th Cir. 1992). Put another way, Newkirk may establish pretext
by presenting evidence that CMC was more likely than not
motivated by a discriminatory reason or that CMC’s explanation is
not worthy of credence, i.e., that the explanation was factually

baseless, that it was not CMC’s actual motivation or that it was

10


employee in the same position was being paid $17 more a month
than Newkirk despite Newkirk having many more years experience.
CMC explained that Newkirk received less based upon her job
performance and not her age. Because this issue directly relates
to the factual disputes surrounding whether Newkirk did perform
her job poorly, summary judgment is not proper at this time.

Additionally, Newkirk provided evidence that a position
opened through CMC’s Job Posting Program for a Human Resource
Manager, but that she was not granted an interview. The position
was instead given to a 32-year old white female who possessed
less human resource experience than Newkirk. CMC contends that
Newkirk was not qualified for this position for three reasons: 1)
Newkirk possessed several “competent minus” review ratings, which
deemed her ineligible to participate in CMC’s Job Posting
Program; 2) Newkirk did not possess the requisite years of
supervisory experience announced for this position; and 3)
Newkirk possessed a record of poor performance. All three of
these reasons are fraught with factual disputes that cannot be
resolved on summary judgment.

First, CMC points to evidence that Newkirk possessed several
“competent minus” review ratings, which deemed her ineligible to
participate in the Job Posting Program. However, under the
“Minimum Qualifications” category of the Job Posting Program, the
stated criteria for an employee to qualify is an “employee must

be in good standing and must have a minimum of a competent rating


official job posting through the Job Posting Program. This job
description was updated to reflect an additional requirement of
two years supervisory experience. Newkirk had one and half years
of supervisory experience. Therefore, Newkirk was not allowed to
interview for the position.

In addition to not having two years supervisory experience,
Ziehm informed Newkirk that she was not allowed to interview for
this position because she received competent minus ratings in at
least one of the areas in which she was evaluated. The Job
Posting Program policy did not specify whether the “minimum of a
competent rating” necessary to qualify was the minimum necessary
overall or the minimum necessary in each individual category.
Newkirk had an overall competent score.

Additionally, at least two other employees-~white female
employees~-were promoted to a higher position despite having
competent minus ratings in some areas. CMC claims that occurred
because they were promoted by a supervisor and in turn, by~passed
the Job Posting Program.

Furthermore, in 1998, Kristen Crombie (“Crombie”), a 28~year
old female with three years of human resources experience,
received a salary of $2,917.00 per month as a Human Resource
Specialist by CMC. While, Newkirk, a 61-years old female, with 18
years of human resource experience, received $2,900.00 per month

as Human Resource Specialist by CMC.


Additionally, to make out a prima facie disparate impact
case, Newkirk must establish that (1) CMC engaged in the
complained of practices, and (2) statistics or other evidence
demonstrate that the practices affected members of the protected
group more harshly that other employees. Price v. City of
Chicago, 251 F.3d 656, 659 (7th Cir. 2001). Although Newkirk
offers statistics in her Complaint reflecting the
underrepresentation of minorities in higher levels of management,
Newkirk fails to provide statistics as to the pool of “qualified”
applicants for these positions. “In disparate impact cases, it

is eligibility rate, not underrepresentation, that is telling.”

Gilty v. Village of Oak Park, 919 F.2d 1247, 1254 (7th Cir.
1990). Moreover, Newkirk brings forth no evidence in her
Response to CMC’s Motion for Summary Judgment to refute CMC’s
assertion that Newkirk’s disparate impact claim lacks the
statistics or other evidence necessary to properly plead a cause
of action. Therefore, summary judgment as to this count is
granted.

IV. Title VIT Retaliation Claim

Newkirk also alleges in Count IV that CMC refused to provide
her with information to perform her job, suspended her for six
months, and subsequently fired her as retaliation for filing a
discrimination claim against CMC. To state a claim for
retaliation, Newkirk must show that: 1) she engaged in

statutorily protected activity; 2) she suffered an adverse


Therefore, because she fails to establish a causal link between
her filing a discrimination claim and her being suspended then
fired, summary judgment is granted for CMC on this Count.
CONCLUSION
For the reasons set forth above, the Court denies
Defendant’s Motion for Summary Judgment as to Counts I and II and

grants the motion as to Counts III and Iv.

ENTER:
\
e Ware week,
Geofge M. Marovich
Uni States District Judge
DATED: ets AO ROOD
7

15


Human Resources Specialist, a position that she held for the
duration of her employment with CMC. During her employment, she
received performance evaluations through which her supervisors
would rate her performance in an array of different categories
and they would give her an overall rating.

The undisputed facts show that when Julie Applegate
(“Applegate”) became Newkirk’s supervisor in 1996, Newkirk
started to receive much lower ratings than she had previously.
Before 1996, she did not receive any competent minus ratings.
However, from August 16, 1996 through August 16, 1999, Newkirk
received twelve competent minus ratings, three marginal ratings
and four unsatisfactory ratings (competent being average).

On June 6, 1995, CMC issued its Job Posting Program, which
remained in effect through 2000. This program is a written
program that has a category entitled “Minimum Qualifications”.
Under this category, the stated criteria for an employee to
qualify is that the “{e]mployee must be in good standing and must
have a minimum of a competent rating with no warnings on file.”
(Pl’s Stmt. Of Mat. Facts, Ex. A, No. 4)

On May 15, 2000, Newkirk prepared an application for the
position of Human Resource Manager based upon the job description
that Applegate provided to her. Newkirk provides some evidence
that this job description did not require two years of
supervisory experience. However, on May 22, 2000, David Ziehm

(“Ziehm”), Director of Human Resources at the time, posted the
Pp


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOYCE NEWKIRK,

)
)
Plaintiff, )
)
v. ) O01 C 0615
) Judge George M. Marovich
AAA CHICAGO MOTOR CLUB, ) Oo ttm my
) ten F
Defendant. ) JUL g 2 ibu3

MEMORANDUM OPINION AND ORDER

Plaintiff Joyce Newkirk (“Newkirk”) filed a four-count
Second Amended Complaint (“Complaint”) against AAA Chicago Motor
Club, (“CMC”), alleging racial discrimination in violation of the
Civil Rights Act, as amended, 42 U.S.C. Section 2000(e) et seq.
(“Title VII”) (Count I); age discrimination in violation of the
Age Discrimination Employment Act, 29 U.S.C. 621-634
(“ADEA”) (Count II), disparate impact discrimination in violation
of Title VII (Count III); and retaliation in violation of Title
VII (Count IV). Defendant moved for summary judgment pursuant to
Federal Rule of Civil Procedure 56. For the reasons set forth
below, the Court grants in part and denies in part Defendant's
Motion for Summary Judgment.

BACKGROUND

Newkirk is an African-American female, who is sixty-one

years old. She began working at CMC in August 1982 as an

Administrative Assistant. In 1992 or 1993, she was promoted to


an insufficient rationale for CMC’s action. See Vakharia v.
Swedish Covenant Hosp., 190 F.3d 799, 807 (7th Cir. 1999).

Newkirk has presented evidence, discussed earlier in regards
to the prima facie case, to show that CMC’s stated reasons were
not the actual motivation, but rather mere pre-text for
discrimination,

Therefore, this Court's ultimate inquiry at this juncture is
whether the evidence discussed previously, viewed in a light most
favorable to Newkirk, raises an inference that the real reason

for CMC's dismissal was discriminatory. See Jackson v. E.J. Brach

Corp., 176 F.3d 971, 983 (7th Cir. 1999). In short, although
there are certainly many benign and justifiable explanations for
Newkirk being denied a chance to interview for the promotion, the
Court finds that Newkirk has presented sufficient evidence
calling into question the sincerity of CMC's asserted reasons,
and that a factfinder could reasonably infer from the evidence
that unlawful discrimination was the true motivation. See Stalter
v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999). As
such, CMC's motion for summary judgment is denied with respect to
Newkirk's race and age discrimination claims.

Accordingly, the Court finds that there are genuine issues
as to any material fact which preclude summary judgment. For all
these reasons, summary judgment for Count I and II must be

denied.

MW


employment action; and 3) there is a causal link between the
protected activity and adverse employment action. Jones v. Gen.
Elec. Info. Servs., 3 F. Supp. 2d 910 (N.D. Ill. 1998).

First, Newkirk alleges that CMC refused to provide her with
information needed to perform her job. Generally, an adverse
employment action requires the loss of some actual or potential
benefit such as through a demotion, termination, or loss of
wages, benefits or material responsibilities. Crady v. Liberty

Nat’1 Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.

1993). A mere failure to provide information without any loss of
actual or potential benefit simply does not constitute an adverse
employment action under the law.

Next, Newkirk highlights evidence that approximately one
week after filing this discrimination claim, Newkirk was
suspended with full pay and benefits and subsequently fired. In
response, CMC provides evidence that Newkirk was suspended and
fired because Newkirk copied and left the building with both her
own, as well as other individual’s confidential human resource
documents, including private job performance evaluations, to
attach to her Complaint in this case. Here, although Newkirk was
engaged in statutorily protected activity of filing a
discriminatory claim and although she did suffer an adverse
employment action of being suspended then fired, based upon the
facts presented, it is clear that Newkirk was aware that her

actions both violated company policy and constituted theft.

14