ANALYSIS
I. Robbin Johnson-Carter

Johnson-Carter alleges racial harassment and discriminatory treatment and termination.
For the reasons set out herein, we reject these claims.

A. Johnson-Carter’s Discriminatory Treatment Claims

Johnson-Carter alleges discriminatory treatment under Title VII and 42 U.S.C. § 1981.7
Specifically, Johnson-Carter alleges that she was: (1) denied training opportunities given to non-
African-Americans; (2) not invited to attend staff meetings that non-A frican-American
counterparts attended; (3) required to work in assurance training, an area outside her expertise;
and (4) denied compensatory time off and performance feedback.

Title VII provides that “[iJt shall be an unlawful employment practice for an employer . . .
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,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Johnson-Carter can avoid
summary judgment on her Title VII discrimination claims either by presenting direct evidence that
BDO’s actions were racially motivated or by employing the indirect burden-shifting method
originally formulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Michas v.
Health Cost Controls, 209 F.3d 687, 693 (7" Cir. 2000). Because Johnson-Carter concedes that
she has no direct evidence of discrimination, her discrimination claims must satisfy the burden-

shifting analysis in order to survive summary judgment. Under McDonnell Douglas and its

7 In analyzing Johnson-Carter’s § 1981 claims, we employ the same framework used with
respect to her Title VIE claims. Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7" Cir.
1999).

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sexual comments culminating in a physical threat while being shown a racist, pornographic
photograph).

The conditions that Carter complains of do not rise to the level that the Seventh Circuit
considers intolerable, nor were they racially-motivated. The yelling, scrutiny, and
“reclassification,” however unpleasant, fall in line with conditions that the Seventh Circuit deems
tolerable. See e.g. Harriston v. Chicago Tribune Company, 992 F.2d 697, 705 (7" Cir. 1993)
(employer reprimanding plaintiff-employee for no reason is a tolerable working condition);
Nordstrom, 260 F.3d at 735 (supervisors monitoring and giving a disproportionate amount of
“menial” work to plaintiff-employee are tolerable working conditions). Therefore, the conditions
that Carter complains of do not rise to the level necessary to sustain a constructive discharge
claim.

Ill. Kendra Aguirre

A. Aguirre’s Termination Claim

Aguirre argues that BDO terminated her employment because she is African-American.
BDO maintains, however, that it did not terminate Aguirre because of her race, but that her
position was eliminated in BDO’s reorganization process. (See R. 23-2B, Def.’s Mem. in Supp. of
Def.’s Mot. for Summ. J.) Because BDO does not dispute that the first three elements of
Aguirre’s prima facie case are met, we will only address whether Aguirre established the fourth
prong of her prima facie case.

1. Similarly Situated Employees Were Not Treated More Favorably

Aguirre alleges that D’Agostin, Wise, and Rieckmann ~ all Caucasian employees — were

similarly situated and treated more favorably. Specifically, Aguirre claims that Wise and

40



for which Carter had been responsible since her hire. In short, Carter’s change in title and duties
did not significantly alter her employment and did not constitute a material adverse employment
action.

Carter also claims that Grimmer’s requirement on March 27, 2000 that Carter
affirmatively commit to the newly-described position constituted a material adverse action. BDO
argues that given Carter’s expressed concerns about her daily departure time and the new filing
requirements, it was not unreasonable to request an affirmative commitment. This Court, like
Carter, believes that Grimmer’s ultimatum ~ “I want you to say that you want the job and quit
playing with words” — was unduly forceful, but the requirement still does not rise to the level of a
material adverse action. (R. 27, Def.’s Statement of Facts § 88 (citing Carter Dep. at 212).)

Finally, in response to BDO’s motion, Carter alleges that O’Neill yelled at Carter, on one
occasion in front of co-workers. (R. 37-1, Carter Mem. in Opp’n to Def.’s Mot. for Summ. J. at
4-5.) This Court agrees with Carter that O’Neill’s treatment indicates a lack of professionalism,
but Carter fails to show how it materially and adversely affected her employment with BDO. See
Oest, 240 F.3d at 613 (citing Smart, 89 F.3d at 441) (“Not everything that makes an employee

unhappy is an actionable adverse action.”).

2. Similarly Situated Employees Were Not Treated More Favorably
In addition to failing to allege any material adverse actions, Carter also fails to show that
similarly situated non-A frican-American employees were treated more favorably. Carter, citing
her deposition testimony, argues that “other executive assistants” were treated more favorably and

relies upon Zema Systems to argue that she can compare her treatment to these workers outside

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4

Rieckmann accepted an experienced recruiting position in BDO’s Chicago practice office,

(R. 24-A, Def.’s Statement of Facts 19 44-45, 50.) Even though Coy had approximately eleven
years of work experience before she began her employment at BDO, her experience, in contrast to
Rieckmann’s, was varied and not focused in the human resources/recruiting area. Prior to her
employment with BDO, Coy was a customer service representative for approximately five
months, an information operator for over two years, an executive secretary for nearly three years,
and in marketing positions for nearly four years. (Id. at 7-8.) Rieckmann had nine years of
experience in the recruiting field before she worked at BDO. (Ud. at § 47.)

Rieckmann’s responsibilities with the National Recruiting Group at BDO were also more
specialized than Coy’s responsibilities as a Senior Human Resources Specialist. In her Human
Resources position, Coy performed mainly secretarial work — scheduling meetings, completing
reports, monitoring the department budget, working on special projects and filling in at the

reception desk. (Jd. at $27.) In contrast, Rieckmann was responsible for establishing recruiting

procedures and policies for BTS and organizing BDO’s Intemet recruitment efforts (Ud. at | 48.)

In light of Rieckmann’s extensive recruiting experience, Coy fails to show that she was similarly
situated to Rieckmann.

Coy was also not similarly situated to Shari Steele because the two did not possess

analogous qualifications. Like Rieckmann, Steele worked in the National Recruiting Group. In

addition, Coy and Steele had differing job responsibilities. Whereas Coy performed mostly

secretarial tasks before the reorganization, Steele was responsible for entry level professional
recruiting. (Id. at §f 27, 58.) Asa result of the reorganization, Steele accepted the position of
National Entry Level Recruiting Manager in BDO’s Chicago practice office. (Id. at 761.) In this

new position, Steele continued to perform the same recruiting duties she performed prior to the

45


and left her desk, yelled at and berated her, gave her additional responsibilities along with a less
distinguished job title and required Carter to affirmatively commit to the newly-described
position. (R. 37-1, Carter.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. at 9-10.)

On July 24, 2000, Carter filed a charge of discrimination with the EEOC. (R. 10-2, Carter
Am. Compl. 13.) The EEOC issued a right to sue letter on September 29, 2000, which Carter
received on October 3, 2000. (/d.) On December 21, 2000, Carter filed a complaint with this
Court.
Til. Kendra Aguirre

A. Background

In March 1998, Plaintiff Kendra Aguirre began her employment as an administrative
assistant/receptionist in BDO’s national office in Chicago. (R. 24-B, Def.’s Statement of Facts
4 2, 11.) As an administrative assistant/receptionist, Aguirre performed receptionist duties and
secretarial work for supervisor Toni Lawrence (/d. at § 13.) Aguirre had a clean work record at
BDO. (R. 33-2, Aguirre Add’ Facts § 1.) She was never reprimanded and never written up. (Id.)
Before Aguirre began her employment with BDO, she had approximately seven years of
experience in retail sales positions, approximately one year of experience as a telephone
interviewer and approximately eight years experience as a receptionist/area coordinator with
customer service responsibilities. (R. 24-B, Def.’s Statement of Facts { 6-9, 11, 13.) Aguirre
has an associate’s degree in retail management. (Jd. at ] 5.)

Three to four months after Aguirre began her employment at BDO, Lawrence offered and
Aguirre accepted a promotion to the position of Human Resources Coordinator. (/d. at § 14).

Aguirre’s responsibilities as a Human Resources Coordinator included interacting with outside

13


BDO admits that Mebane told Johnson-Carter that her termination was not performance related.
(R. 40, Def.’s Resp. to Johnson-Carter Add’l Facts 4 9.) Given the record of Johnson-Carter’s
performance, Mebane’s comment does not persuade us that Johnson-Carter was in fact meeting
BDO’s expectations at the time of her termination. (R. 20, Def.’s Statement of Facts ¥ 22-26,
33-35, 38, 46-56.) The Seventh Circuit has noted that despite employee performance problems,
an employer might provide an employee with a benign reason for her dismissal in order not to
hamper a future job search and might not fully explain the reasons for a termination until a suit is
filed. Witmmer v. Maclean Hunter Publ’g Co., No. 95-1699, 73 F.3d 365, 1995 WL 767091, at
*7-8 (7" Cir. Dec. 27, 1995). At the time of Johnson-Carter’s termination, BDO was in fact
reorganizing its structure and Mebane likely did not want to add that BDO had also been less than
pleased with her performance.

In short, Johnson-Carter has not come forward with evidence that she was meeting BDO’s
legitimate expectations. She admits that BDO believed that her performance was lacking during
the summer and fall of 1999, and the evaluations by Ross, Harter and Mebane also show that she
was not meeting performance expectations. As such, Johnson-Carter cannot establish the second
prong of her prima facie case.

2. Johnson-Carter’s Allegations of Discriminatory Treatment Do Not
Constitute Material Adverse Actions

Johnson-Carter also fails to prove that the actions she complains of — denial of training,
non-invitation to staff meetings, requirement to work outside her area of expertise, denial of
compensatory time off and lack of performance feedback ~ constitute material adverse
employment actions. Adverse actions must be more than a “mere inconvenience or an alteration

of job responsibilities.” Oest v. Ill. Dep’t of Corrections, 240 F.3d 605, 612 (7" Cir. 2001) (citing

23


D’Agostin “were considered for termination because they did not have enough work to do, but
they were kept on.” (R. 32, Aguirre Mem. in Opp’n to Def.’s Mot. for Summ. J. at 3.)

With respect to Wise, there is insufficient information in the record to determine whether
she was similarly situated to Aguirre. Aguirre briefly mentions Wise as an employee who was not
terminated. (Jd.) Because no information is provided as to Wise’s experience, education or
qualifications, the Court is unable to conclude whether she was similarly situated to Aguirre.

It is clear, however, that Aguirre was not similarly situated to Rieckmann because Aguirre
lacked Rieckmann’s qualifications and experience. As part of the reorganization process, BDO
decided that its objective to recruit experienced candidates could best be accomplished by creating
a National Director of Experienced Recruiting within the National Recruiting Group, along with
various recruiter positions in selected practice offices. (R. 24-B, Def.’s Statement of Facts { 37.)
Rieckmann, who had nine years of recruiting experience before working at BDO and who was
part of the National Recruiting Group, accepted an offer for an experienced recruiting position in
BDO’s Chicago practice office. (Jd. at 49 38, 40.)

Aguirre did not possess experience or qualifications comparable to Rieckmann. In
particular, Aguirre was not part of the National Recruiting Group, and she performed human
tesources generalist responsibilities such as new hire orientations and payroll duties. (R. 24-B,
Def.’s Statement of Facts { 23.) In contrast, Rieckmann’s responsibilities were more specialized
and substantive. While working with the National Recruiting Group, Rieckmann was responsible
for duties such as establishing recruiting procedures and policies for BTS and organizing BDO’s
Internet recruitment efforts. (/d. at €41.) In her new position at the Chicago practice office,

Rieckmann recruited professionals for the Chicago and other Midwest offices, and continued to

41


she was not as productive as she could be. (R. 21, App. in Supp. of Def.’s Mot. for Summ. J., Tab
E, Performance Feedback Memorandum.) Johnson-Carter does not dispute that Ross honestly
believed she was not as productive as she could or should be. (R. 20, Def.’s Statement of Facts
{26 (citing Johnson-Carter Dep. at 75-76).)

Around August 2, 1999, Johnson-Carter’s performance was again reviewed, on this
occasion by Harter. (/d. at {33.) Among other observations, Harter’s evaluation stated:
“Sometimes it seems as though you are hesitant to take the initiative on projects or processes.
Given our limited resources, it is vital that you step up to the plate as much as possible and
provide leadership.” (R. 21, App. in Supp. of Def.’s Mot. for Summ. J ., Tab F, Performance
Review.) Again, Johnson-Carter does not doubt that Harter honestly believed she was lacking
initiative on projects. (R. 20, Def.’s Statement of Facts 4135 (citing Johnson-Carter Dep. at 85-
86).)

At an unspecified point prior to Mebane’s hire, Johnson-Carter received a bonus
recommended by an unidentified former head of the CPD. (R. 36-3, Johnson-Carter Add’! Facts
12.) Johnson-Carter also alleges that she received an above average performance review. (Id.)

In mid-August 1999, Mebane requested that each member of the CPD complete a self and
team evaluation. (Jd. at § 40.) Johnson-Carter completed the evaluation, rating herself as “needs
improvement” in some areas, but as better than the team in other areas. (R. 21, Def.’s App. in
Supp. of Mot. for Summ. J., Tab G, CPD Team Evaluation.)

Johnson-Carter’s performance was next evaluated on October 19, 1999, when Mebane met
with her to discuss the Audit Level I project. (id. at 11 46, 47.) BDO alleges that when Mebane

met with Johnson-Carter, he was dissatisfied with her performance because of schedule slippage,


aa aera

aires

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supervisor O’Neill does not rise to the level of an adverse employment action. Performing a few
tasks for a supervisor is a “mere inconvenience” rather than an adverse action. Oest, 240 F.3d at
612 (citation omitted). Second, Carter’s claim that she was told to limit discussion of work-
related problems to either O'Neill, Grimmer or the Human Resources Manager also fails because
Carter did not show how this request had a material effect on her employment. (See R. 37-1,
Carter Mem. in Opp’n to Def.’s Mot. for Summ. J. at 3-6.) Third, Carter’s allegation that her
employment was adversely affected because her supervisors ignored her also does not constitute a
material adverse action. The claim is vague and not fleshed out in the record and is contradicted
by Carter’s other claims, such as the claim that her whereabouts were monitored."' (Id, at 4-6.)

Several of Carter’s claims are incidents of employment in most administrative/secretarial
positions, not adverse employment actions. From this Court’s experience, it is commonplace that
an executive assistant inform her supervisor when she is unavailable, stay past 5:00 p.m. to finish
projects that need to be sent out promptly and check-in with her supervisor before the end of the
day to confirm that no more work needs to be done. Carter has failed to show how Grimmer and
O’Neill’s requirements and actions materially and adversely affected her employment. But see
Crady v. Liberty Nat’! Bank & Trust Co., 993 F.2d 132, 136 (7" Cir. 1993).

The final claims in Carter’s Amended C mplaint involve the lassification of Carter’s

position and Grimmer’s requirement that she affirmatively commit to the position as newly

described. (R. 10-2, Carter Am. Compl. 411A, 11G.) Although Carter was hired as an

executive assistant, her job title was changed to “administrative assistant/clerk” in March 2000.

"Although Carter did not reiterate these claims from her Amended Complaint in her
Memorandum in Opposition to Defendant’s Motion for Summary Judgment, and BDO argues
that the claims have been abandoned, we briefly address and reject the claims here.

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progeny, Johnson-Carter must first establish a prima facie case of discrimination by showing that:
(1) she is a member of a protected class; (2) she was meeting BDO’s legitimate expectations; (3)
she suffered an adverse employment action; and (4) similarly situated persons outside the
protected class were treated more favorably. Jd.

Once Johnson-Carter establishes her prima facie case, a rebuttable presumption of
discrimination arises and the burden of production shifts to BDO to articulate a legitimate,
nondiscriminatory reason for its action. Id. at 694. If BDO produces a legitimate,
nondiscriminatory reason for its action, the presumption of discrimination dissolves and the
burden of production shifts back to Johnson-Carter to show that the proffered reason is a pretext
for discrimination. Jd. In order to establish pretext, Johnson-Carter must show that BDO’s reason
is “unworthy of credence.” Logan v. Kautex Textron N. A., 259 F.3d 635, 640 (7" Cir. 2001).

BDO offers two arguments in support of its motion for summary judgment on the
discriminatory treatment claims. First, BDO argues that Johnson-Carter cannot establish a prima
Jacie case on any of her discrimination claims. Specifically, BDO argues that Johnson-Carter
does not meet the second, third and fourth prongs of the McDonnell Douglas test. In other words,
BDO argues that Johnson-Carter did not meet BDO’s legitimate expectations, that the actions she
complains of were not materially adverse and that similarly situated persons outside the protected
class were not treated more favorably. Second, BDO argues that even if Johnson-Carter could
make out a prima facie case on any of her discrimination claims, she could not raise an inference
that BDO’s reasons for its actions were pretext for intentional race discrimination. As detailed
herein, we conclude that Johnson-Carter cannot establish a prima facie case or pretext on any of

her discriminatory treatment claims.

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not have easily transitioned into Farias or Steele’s positions had either been reassigned to
assurance training instead. Given their different skill sets, we cannot conclude that Farias and
Steele were treated more favorably than Johnson-Carter. Second, Johnson-Carter has not come
forward with evidence of similarly situated non-A frican-Americans who were treated more
favorably with regard to compensatory time off. She fails in meeting the fourth prong of her
prima facie case with respect to this claim.

Third, with respect to the denial of training claim, Johnson-Carter compares herself to
Farias and Steele who were each allowed to attend outside training on one occasion. BDO argues
that Johnson-Carter was not similarly situated to Farias and Steele because she already had
expertise in the training subject matter, and because she requested the training at a time when her
work was potentially going to be outsourced. There is no evidence in the record that distinguishes
Farias and Steele from Johnson-Carter with respect to the training claim (i.e. evidence that they
had no prior knowledge of their outside seminar material or requested training before the
reorganization). Although it is unclear whether Farias and Steele were similarly situated to
Johnson-Carter with respect to the training claim, it is clear that Johnson-Carter still does not meet
her prima facie case because the one-time denial of outside training on a subject already familiar
to her is not a material adverse employment action. Finally, because we have already determined
that Johnson-Carter’s final two discriminatory treatment claims — lack of performance feedback
and non-invitation to meetings — are either contradicted or unsupported by the record, we will not
discuss whether Johnson-Carter meets the fourth prong of her prima facie case with respect to

these two claims.

26


evaluations, standing alone, create a genuine issue of triable fact when, as here, there have been
substantial alterations in the employee’s responsibilities and supervision in the intervening
period.”) Johnson-Carter cannot point to this lone positive evaluation given by a prior supervisor
as evidence that she was meeting BDO’s legitimate performance expectations at the time of the
alleged discriminatory treatment and termination. In addition, Johnson-Carter cannot point to the
bonus she received at an unspecified time prior to Mebane’s hire as evidence that she was meeting
BDO?’s legitimate expectations at the time of the alleged discrimination and her termination. See
Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 452-453 (7" Cir. 1998) (“[P]ast raises and
bonuses do not prove that . . . [plaintiff] was meeting . . . [defendant’s] legitimate expectations at
the time of... [her] discharge.”).

Both parties also point to Johnson-Carter’s self-evaluation in July 1999 as evidence
supporting their view of Plaintiff's performance. Johnson-Carter admits that she rated herself as
“needs improvement” or “unsatisfactory” in ten categories, but also adds that she rated herself as
“above average” in other categories. (R. 20, Def.’s Statement of Facts 41; R. 36-3, Johnson-
Carter Add’| Facts 4.) The positive aspects of Johnson-Carter’s subjective self-evaluation
cannot, however, create a genuine issue of material fact as to whether she was meeting BDO’s
legitimate performance expectations. Fortier, 161 F.3d at 1114, Even though Johnson-Carter
might have accurately rated her strengths as an employee, Mebane — as her direct supervisor —
had the discretion to acknowledge these strengths while still finding her performance lacking. Id.

Finally, Johnson-Carter argues that she was meeting BDO’s legitimate expectations
because at the time of her termination, Mebane told her that her termination had nothing to do

with her performance. (R. 36-1, Johnson-Carter Mem. in Opp’n to Def.’s Mot. for Summ. J. at 5.)

22


During this time, Carter also received a job description for the newly-defined position. The
parties agree that Carter’s salary and benefits were not changed by the job description, but
disagree as to whether Carter’ s duties were substantially changed. Carter alleges that the job
description contained a second page of additional responsibilities. (R. 37-1, Carter Mem. in
Opp’n to Def.’s Mot. for Summ. J. at 5.) In her deposition, Carter specified the additional
responsibilities: (1) refiling documents according to O’Neill’s system; (2) checking Grimmer and
O’Neill’s outboxes every few hours; (3) following-up on assignments; (4) maintaining a
correspondence file for Grimmer; and (5) maintaining Grimmer’s periodical file. (R. 28, App. in
Supp. of Def.’s Mot. for Summ. J., Tab A, Carter Dep. at 225-227.) BDO maintains that the
duties listed on the job description were substantially the same as Carter’s existing job duties.
R. 27, Def.’s Statement of Facts ] 69.)

For a change in a job title to constitute a material adverse action, it must be accompanied
by a diminishing of significant responsibilities, Crady, 993 F.2d at 135-136. In Crady, the
Seventh Circuit held that a change in position from an assistant vice president at one bank branch
to a loan officer position at another branch did not constitute a material adverse action because
plaintiff maintained the same level position, salary and benefits and did not show that his changed
responsibilities were any less significant. Id. See also Flaherty v. Gas Research Inst., 31 F.3d
451, 457 (7" Cir. 1994) (changes in title and supervisor are “largely semantic where the
employee’s salary, benefits, and level of responsibility would remain unchanged”). In this case,
the change in Carter’s job title ~ from executive assistant to administrative assistant/clerk — was
even less dramatic than in Crady. In addition, the parties agree that Carter’s salary and benefits
remained unchanged. Finally, although Carter’s responsibilities changed, they were not less

significant than her prior responsibilities. The additional duties were mainly filing requirements,

35



B. Coy’s Termination
In December 1999, BDO began a reorganization of its staffing in its executive and national
offices. (R. 24-A, Def.’s Statement of Facts | 29.) In April 2000, Bob Gaida, BDO’s Vice
Chairman, notified Holmes and Harter that their positions were being eliminated and that their
employment would be terminated. (Jd. at { 30.) Holmes and Gaida decided that because Coy
only worked for Holmes and Harter, Coy’s position would likely be eliminated unless she could
transfer to some other area of BDO. (id. at 731.) Effective June 30, 2000, Coy, Harter and
Holmes were all terminated from BDO. (id. at 31-32.) Coy did not obtain another position
within BDO. (Jd. at ] 33.)
C. Coy’s Allegations of Discriminatory Intent
Coy takes issue with BDO’s continued employment of the following Caucasian employees:
Rieckmann, D’ Agostin, Shari Steele, and Cindy Gillen. Coy asserts, and BDO denies, that these
four employees were employed at the same Senior Associate level as Coy. (R. 35-3, Coy Add’1
Facts 5; R. 44, Def.’s Resp. to Coy Add’l Facts 45.) Asa result of the reorganization,
Rieckmann and D’ Agostin were transferred to recruiter and administrative assistant positions,
respectively, in the Chicago practice office. (R. 24-A, Def.’s Statement of Facts 7 50, 54.)
Steele was also moved to the Chicago practice office where she continued entry level professional
recruiting. (Id. at {{ 61, 62.) Also as a result of the reorganization, Gillen, who had eight years of
travel management experience prior to BDO as well as experience managing BDO’s travel

programs, became BDO’s Travel Coordinator (id. at { 65, 66, 70.)

17


BDO decided to “spin off” BTS, the information technology business for which Steele designed
training. (Id. at | 78.) BDO alleges that BTS invited Steele to join it, and that Mebane had no
part in BTS’s decision to offer Steele a position. (Id. at {{] 79, 80.)

In addition to Johnson-Carter and Steele, the positions of the following BDO employees
were also eliminated due to the reorganization: Kendra Aguirre, Elizabeth Coy, Jessica Gutierrez,
Julie Harter, Warren Holmes, Craig Johnston, Anna Montez, Karen Schmidt, and Samuel
Vitkoski. (/d. at 81.) Johnson-Carter alleges that on February 17, 2000, the day of her
termination, only Hispanic and African-American employees (Gutierrez, Montez and Aguirre) of
the CPD were let go. (R. 36-3, Johnson-Carter Add’1 Facts 8.) BDO responds that only Montez
worked in the CPD. (R. 40, Def.’s Resp. to Johnson-Carter.’s Add’l Facts { 8.) From the record,
it is clear that Montez worked in the CPD, (R. 21, App. in Supp. of Def.’s Mot. for Summ. J., Tab
A, Johnson-Carter Dep. at 46), and Aguirre worked in Human Resources (R. 21, App. in Supp. of
Def.’s Mot. for Summ. J., Tab D, Forgue Aff.), but it is unclear in which department Gutierrez
worked, (id.).

On September 4, 2000, Johnson-Carter filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). (R. 10-1, Tohnson-Carter Am. Conibl. 13) ,
The EEOC issued a right to sue leiter on September 29, 2000, which Johnson-Carter received on
October 3, 2000. (/d.) On December 21, 2000, Johnson-Carter filed a complaint with this Court.
Il. Sandra Carter

A. Background

In October 1998, Plaintiff Sandra E. Carter began working as an executive assistant in

BDO’s legal department. (R. 27, Def.’s Statement of Facts [§ 4, 11.) At the time of her hire,


Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). To determine whether a work environment is
objectively hostile, we must look at a variety of factors, including “the frequency of
discriminatory conduct; its severity; whether it was physically threatening or humiliating; or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7 Cir. 1998) (quoting Harris,
510 USS. at 23).

In this case, the alleged harassment, however inappropriate, was neither frequent nor
severe. Johnson-Carter alleges only a few instances of harassment: (1) the yelling by Huddleston;
(2) the hair comment by Nieman; and (3) the neighborhood comment by Harter. Only the latter
two comments are linked to race, and even so, isolated comments are not legally
sufficient to sustain a hostile work environment claim. Adusumilli, 174 F.3d at 361-362. The
Seventh Circuit recently reiterated the Supreme Court’s cautionary words that “simple teasing,
offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.’ ” Jd. at 361 (citing Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citations omitted)). As such, Johnson-Carter’s

harassment claims are legally insufficient to constitute direct evidence of discrimination or

evidence of a hostile working environment.
II. Sandra E. Carter
Carter alleges discriminatory treatment, a racially hostile working environment, and

constructive discharge. For the reasons set out herein, we reject these claims.'°

© In her Amended Complaint, Carter also alleges a racially hostile working environment.
(R. 10-2, Carter Am. Compl. {§ 11, 16.) BDO argues that Carter abandoned this claim in her
deposition because she admitted that she never heard anyone at BDO use racial slurs or make
racial comments. (R. 26-2, Def.’s Mem. in Supp. of Mot. for Summ. J. at 3.) Carter does not

32


comparing himself to the better treated employee, but he must show substantial similarity.” Jd. at
618 (citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6" Cir. 1998)).?

Johnson-Carter lacks similarity to Steele in two respects: (1) work experience; and (2) job
performance at BDO. Steele had substantial experience working with BTS as project manager of
its training programs. Johnson-Carter, whose main work was in management development and
assurance training, only assisted Steele with BTS work on a few occasions. In addition, there is
no evidence that Steele had performance problems, whereas the record shows that Johnson-Carter
had performance problems. These two differences account for why Steele was treated more
favorably than Johnson-Carter in the reorganization. Johnson-Carter cannot meet the fourth prong
of her prima facie case on her termination claim.

2. Pretext

Summary judgment is further required on Johnson-Carter’s termination claim because
BDO has proffered a legitimate reason for her termination, and Johnson-Carter has not
demonstrated that the reason is pretextual. BDO stands by its claim that Johnson-Carter’s

position was eliminated when the company decided to outsource its instructional design work.

° Johnson-Carter again cites Zema Systems for the proposition that employees do not have
to be similar in every respect in order to be comparators in fourth prong analysis. (R. 36-1,
Johnson-Carter Mem. in Opp’n to Def.’s Mot. for Summ. J. at 5-6.) We agree that a plaintiff
only needs to show substantial similarity to a non-protected class employee. See Radue, 219
F.3d at 618. Zema Systems, however, involved a particular factual scenario which is easily
distinguished from the one at hand. In that case, because plaintiff was the only vice president of
sales and marketing, defendant-employer argued that there were no similarly situated employees
to conduct a fourth prong analysis. The Seventh Circuit ruled that plaintiff’s singular job title
should not preclude fourth prong analysis and that plaintiff's treatment should be compared with
others in intermediate managerial positions. Here, the presence of comparators is not an issue.
There is another instructional designer — Carol Steele — to whom Johnson-Carter can be
compared. Thus, Johnson-Carter’s reliance on Zema Systems fails.

29


C. Johnson-Carter’s Allegations of Harassment and Discriminatory Treatment

In her Amended Complaint, Johnson-Carter alleges various instances of discriminatory
treatment at BDO. First, Johnson-Carter alleges that she was denied training opportunities that
were given to non-African-Americans. (R. 10-1, Johnson-Carter Am. Compl. { 10A.) On three
occasions in November 1999, Johnson-Carter asked Mebane if she could attend an outside
leadership training program in December 1999. (R. 20, Def.’s Statement of Facts 111.) Mebane
knew that Johnson-Carter already had expertise in leadership development training and told her he
would think about her request. (/d. at 1 112.) Johnson-Carter never received Mebane’s approval
to attend the training program. (Jd. at 113.) According to Johnson-Carter, co-workers Farias
and Steele were allowed to attend outside training on one occasion. (id. at 4 110.)

Second, Johnson-Carter alleges that she was subject to verbal attacks by co-workers.
QR. 10-1, Johnson-Carter Am. Compl. § 10B.) On an unspecified date, co-worker Brenda
Huddleston yelled at Johnson-Carter that she was not doing her job. (R. 20, Def’s Statement of
Facts { 89.) Johnson-Carter complained to Mebane, who agreed to talk to Huddleston. (Id. at
{7 90-91.) Although Johnson-Carter does not know if Mebane spoke with Huddleston about the
incident, Huddleston subsequently refrained from making any other comments that Johnson-
Carter considered inappropriate. (Id. at { 92.)

Third, Johnson-Carter alleges that she was not invited to attend staff meetings. (R. 10-1,
Johnson-Carter Am. Compl. J 10C.) Although on some occasions Johnson-Carter attended
meetings with Mebane, Farias, Huddleston and Steele, on approximately three occasions, she

observed Mebane meeting only with Farias, Huddleston and Steele. (R. 20, Def.’s Statement of


lack of organization and a clear work plan and failure to communicate when she was experiencing
problems. (Id. at { 48, 49.) Mebane, however, failed to communicate these concerns at the
meeting and addressed them in a later memorandum. (R. 36-3, Johnson-Carter Add’] Facts { 6.)
Johnson-Carter does not dispute that during the meeting she agreed with Mebane that her
contribution to the Audit Level I project was not adding value commensurate with the time she
was spending on it. (R. 36-2, Johnson-Carter Statement of Facts 50, 51.) Johnson-Carter told
Mebane that she was simply fulfilling the role that had been defined for her by a BDO partner
working on the project and could offer limited value since she lacked an auditing background.

(R. 20, Def.’s Statement of Facts §§ 51, 52.) Mebane responded by arguing that an instructional
designer’, with the help of a subject matter expert, should be able to add value to a project without
having expertise in the subject matter. (/d. at 53.)

Mebane concluded the October 19,1999 meeting by assigning Johnson-Carter a new
management development project to focus on during the month of November. (Id. at § 57.)
Mebane told her she should use the new project to prove that she could be a valuable member of
the CPD team, which Johnson-Carter considered to be a fair arrangement. (Jd. at J 58, 59.) As
agreed, Johnson-Carter submitted a plan on leadership development within a few days. (ld. at
§61.) BDO alleges, however, that Mebane was not satisfied with the plan and did not consider it
implementable. (Jd. at { 62.) The plan focused on leadership development, rather than

management development, which Mebane considered to be a different subject. (Id. at § 63.)

* Performance Development Managers are also referred to as instructional designers in
both parties’ briefs and in this opinion.


On July 24, 2000, Coy filed a Charge of Discrimination with the EEOC. (R. 10-4, Coy Am.
Compl. ]3.) The EEOC issued a right to sue letter on September 29, 2000, which Coy received
on October 3, 2000. (/d.) On December 21, 2000, Coy filed a complaint with this Court.

LEGAL STANDARDS

A motion for summary judgment is granted when the record shows 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). A genuine issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). See also Jordan v. Summers, 205 F.3d 337, 342 (7" Cir. 2000). When
ruling on a motion for summary judgment, the court must view all evidence in the light most
favorable to the non-moving party and draw all inferences in the non-movant’s favor. Crim v. Bad.
of Educ. of Cairo Sch, Dist. No. 1, 147 F.3d 535, 540 (7" Cir. 1998). The court, however, need
not defeat a motion for summary judgment due to “the mere existence of some alleged factual
dispute between the parties,” Liberty Lobby, 477 U.S. at 247, or the existence of “some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). In short, the court must decide “whether the state of the evidence is
such that, if the case were tried tomorrow, the plaintiff would have a fair chance of obtaining a
verdict.” Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1573 (7" Cir. 1989). We must apply
these standards with added care in employment discrimination cases, as intent is often a contested
issue of material fact in these cases. Wallace v. SMC Pneumatics, Inc. 103 F.3d 1394, 1396 (Ci

Cir. 1997).

18


D. Reorganization of BDO and Termination of Johnson-Carter’s Employment

The heart of Johnson-Carter’s suit is her claim that BDO discriminated against her in
terminating her employment.’ In December 1999, Johnson-Carter began hearing rumors that
BDO was going to reorganize. (R. 20, Def.’s Statement of Facts J 68.) BDO argues that by early
December 1999, Mebane had decided that the company should outsource its instructional design
work to cut costs. (/d. 70.) In mid-January 2000, Mebane formally recommended that the
instructional design work be outsourced and that the positions of Johnson-Carter and Steele be
eliminated.® (id. at ]71.) Mebane’s recommendation was approved and on February 17, 2000, he
informed Johnson-Carter that her position was being eliminated. (Ud. at | 72.) When Mebane
informed Johnson-Carter of her position elimination, he also gave her a job description for a
trainer position in BDO’s New York office, which she did not pursue because she wanted to
remain in Chicago. (Id. at {| 73, 74.) Mebane also told Johnson-Carter that her termination was
not performance related. (R. 36-3, Johnson-Carter Add’ Facts q9)

The position of Carol Steele, the other instructional designer, was also eliminated,

although she received an offer to work with BTS. (Ud. at 1 77, 79.) As part of its reorganization,

* Plaintiff's Memorandum in Opposition to Defendant’s Motion for Summary Judgment
only addresses Johnson-Carter’s termination claim and does not address the other discrimination
or harassment claims. (See R. 36-1, Johnson-Carter Mem. in Opp’n to Def.’s Mot. for Summ. J.)
The Court will not treat other claims as abandoned, as BDO argues, (R. 38, Def.’s Reply at 2),
and will address all of Johnson-Carter’s claims in the analysis.

6 Farias, the third instructional designer, had already been transferred to another position,
Knowledge Manager, effective January 1, 2000. (R. 20, Def.’s Statement of Facts 967.) BDO
alleges that in late November 1999, Mebane began to consider creating the position ~ an
employee who would be responsible for codifying employees’ expertise or knowledge so it could
then be shared with others. (/d. at ] 68.) Mebane wanted Farias to fill the position because he
believed she had excellent organizational and research skills. (Ud. at $66.)

8


bei aad

Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7" Cir. 1993)). A “materially
adverse change might be indicated by a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a particular
situation.” Oest, 240 F.3d at 612-613. However, “not everything that makes an employee
unhappy is an actionable adverse action.” Id. at 613 (citing Smart v. Ball State Univ., 89 F.3d
437, 441 (7 Cir. 1996)).

Two of Johnson-Carter’s allegations clearly do not constitute material adverse actions.
Johnson-Carter alleges that in taking over management of the assurance training program she was
required to work outside her area of expertise. Johnson-Carter was still performing the same type
of work, designing training materials, but on a different subject matter. We view the change of
subject matter as an alteration of job responsibilities which does not rise to the level of an adverse
employment action. The single denial of compensatory time off also does not constitute an
adverse employment action. See Tyler v. Ispat Inland, Inc., 245 F.3d 969, 972-73 (7" Cir, 2001)
(“{T]he denial of a monetary perk . . . does not constitute an adverse employment action if it is
wholly within the employer’s discretion to grant or deny and is not a component of the
employee’s salary.”).

With regard to the remainder of Johnson-Carter’s discriminatory treatment claims, the
Seventh Circuit has given the district courts leeway in determining what constitutes a material
adverse action, noting that “other indices that might be unique to a particular situation” might
point to a material adverse action. Oest, 240 F.3d at 612-613. ‘Although we believe a significant

pattern of denial of training and performance feedback and non-invitation to meetings can

24



Si wae

Minute Order Fem (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Ruben Castillo Sitting Judge if Other
or Magistrate Judge | than Assigned Judge
CASE NUMBER 00 C 8002 DATE 11/5/2001
CASE Johnson-Carter, et al. vs. B.D.O. Seidman, LLP
TITLE
J [ln the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTI ON: of the motion being presented.)
v7
DOCKET ENTRY:
qd) im} Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
G3) QO Answer brief to motion due. . Reply to answer brief due
(4) o Ruling/Hearing on _set for at
(5) im] Status hearing[held/continued to] [set for/re-set for] on set for at
(6) ira) Pretrial conference[held/continued to] [set for/re-set for] on __ set for at
(©) o Trial{set for/re-set for] on___ at
(8) go [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) OGeneralRule21 CIFRCP41(a\(1) CO FRCP41(a)(2).
co) x4 {Other docket entry} Enter Memorandum Opinion and Order. Defendants’ motions for summary
judgment against all four plaintiff's are granted. Judgment is entered in favor of the defendant and against
the plaintiffs. The Clerk is directed to terminate motions [18-1, 23-1, 26-1 and 10-1 which was
mistakenly filed under 01 C 2355].
a) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required umber of notices
Notices mailed by judge’s staf. A
e
Notified counsel by telephone. 8 05 200
/ | Docketing to mail notices. —_—
¥_| Mail AO 450 form. at Thkgtins depory inital
Copy to judge/magistrate judge. May mrtg
courtroom, eo tet
RO deputy’s eypnS VV o7
initials
Date/time received in
central Clerk's Office



Gillen accepted after BDO’s reorganization.
2. Pretext

Although Coy’s failure to establish a prima facie case justifies dismissal of her national
origin discrimination claim, this Court will nonetheless address the pretext stage of the
McDonnell Douglas analysis. BDO asserts that Coy was terminated due to company
reorganization. According to Coy, an inference of pretext is raised by the fact that Rieckmann,
D’Agostin, Shari Steele and Gillen were not terminated but were either transferred or had jobs
created for them. However, because Coy has already failed to show that these four employees
were similarly situated, her argument fails. Differences in treatment of employees who are not
similarly situated cannot demonstrate pretext. See Essex, 111 F.3d at 1311.

Coy also argues that BDO’s reason for her termination is pretextual because all the Senior
Associates cut from the Human Resources department were minorities (Aguirre, Johnson-Carter,
and Guttierez). Johnson-Carter, however, was not in the Human Resources department, and her
position was eliminated when her work was outsourced months prior to Coy’s termination. With
respect to Gutierrez, the record does not offer information on her position or termination, other
than that she was a receptionist. Aguirre worked in the Human Resources department, and her
position was eliminated in the restructuring months prior to Coy’s termination. The facts
surrounding the termination of Johnson-Carter, Gutierrez and Aguirre do not discredit BDO’s
proffered reason for Coy’s termination — her support position was eliminated when her
Supervisors’ positions were eliminated. Therefore, we find that Coy does not produce evidence
that BDO’s proffered reason for her termination was pretext. We conclude that Coy was
terminated, along with similarly situated non-Hispanics, because her position was legitimately

eliminated in BDO’s reorganization.

47


to prepare letters for overnight delivery. (R. 27, Def.’s Statement of Facts { 30, 32.) Although
Carter stayed and did the work on both occasions, she complained to Grimmer and O’Neill about
the lack of notice. (Jd. at {] 31, 34, 35.) Grimmer responded that she would try to give more
notice in the future. (Jd. at 36.) Finally, Carter alleges that she was yelled at and berated by
attorneys Grimmer and O’Neill. (R. 27, Def.’s Statement of Facts {J 25-29, 64.)

C. Carter’s Resignation

Carter’s final two discrimination claims arise out of the events surrounding her resignation
in March 2000. Carter claims that she was discriminated against when her position was changed
from executive assistant to administrative assistant/clerk, and when Grimmer told her she was
required to affirmatively commit to the newly-defined job. (R. 10-2, Carter Am. Compl. { 11A,
11G; R. 37-2, Carter Statement of Facts § 70 (citing Carter Dep. at 162-163).) On March 21,
2000, Grimmer and O’Neill met with Carter to discuss her job duties in light of Univer’s
relocation, and they provided her with a job description. (R. 27, Def.’s Statement of Facts ff 66,
67.) Although BDO alleges that the duties in the job description were substantially the same as
Carter’s existing duties, Carter responds that the new job description contained another page of
additional responsibilities. (Jd. at ] 69; R. 37-2, Carter Statement of Facts 69.) During the
meeting, Carter voiced concerns about staying past 5:00 p.m. and the effect of overtime work on
her train schedule. (R. 37-2, Carter Statement of Facts J 73 (citing Carter Dep. at 152, 160).)
Carter requested some time to look over the job description, to which Grimmer and O'Neill
agreed. (R. 27, Def.’s Statement of Facts 77.)

The next day, March 22, 2000, Grimmer and O’Neill met with Carter at her request to

further discuss the job description. (Jd. at 179.) Carter again raised concerns about having to stay

11


Carter performed general secretarial work for General Counsel Scott Univer and his legal team,
including attorney Joanna Moore. (/d. at {9 9, 14.) When Judith Grimmer joined the BDO legal
team in December 1998, Carter also supported her. (/d. at { 12.) In February 2000, Carter’s team
changed when Laura O’Neill was hired to replace Moore and Univer was moved to another floor.
(d. at {9 47-50.) As of February 2000, Carter worked only for Grimmer and O’Neill. (Jd. at
753.)

B. Carter’s Allegations of Discriminatory Treatment

Carter alleges several instances of discriminatory treatment. First, Carter alleges that,
unlike her Caucasian co-workers, she was required to do personal business for executives.
(R. 10-2, Carter Am. Compl. § 11B.) On two unspecified dates, Carter faxed and sent by
messenger personal documents for O’Neill. (R. 27, Def.’s Statement of Facts ff] 61, 62.) Second,
Carter alleges that she was told not to discuss work-related problems with anyone outside her
department. (R. 10-2, Carter Am. Compl. § 11C.)

Third, Carter alleges that her whereabouts during the workday were monitored. (R. 10-2,
Carter Am. Compl. 11D.) After Univer moved floors, Grimmer and O’Neill required Carter to
check in with them when she arrived in the morning and before she left in the afternoon, and also
when leaving and returning from lunch. (R. 27, Def.’s Statement of Facts §] 54-55.) Fourth,
Carter alleges that she was ignored by “certain Human Resources attorneys.” (R. 10-2, Carter
Am. Compl. J 11E.)

Fifth, Carter alleges that, unlike her Caucasian co-workers, she was required to stay later
than 5:00 p.m. and to cancel plans at the last minute. (R. 10-2, Carter Am. Compl. {1 1F.) On two

occasions in approximately February or March 1999, Grimmer asked Carter to stay past 5:00 p.m.

10


2. Pretext

Although Aguirre fails to establish a prima facie case of racial discrimination, we
nevertheless address the issue of pretext. BDO asserts that Aguirre was terminated as a result of a
BDO’s reorganization. According to Aguirre, BDO’s assertion is pretextual because similarly
situated coworkers were transferred and not terminated. Because Aguirre fails to show that ; :
D’Agostin and Rieckmann were similarly situated, however, she also fails to raise an inference of
pretext by showing that D’Agostin and Rieckmann were treated more favorably. See E. sex, 11 , ; 7
F.3d at 1311.

Aguirre also argues that her position could not have been eliminated because she
performed basic human resources work that was necessary to running an office. (R. 32, Aguirre
Mem. in Opp’n to Def.’s Mot. for Summ. J. at 4.) Aguirre’s argument regarding the impossibility
of eliminating her position does not cast enough doubt upon the legitimacy of BDO’s explanation
for terminating her. BDO management determined that Aguirre’s position could be eliminated
because some of her duties had been eliminated and her remaining duties could be assumed by
others in the restructured organization. (R. 24-B, Def.’s Statement of Facts q31. Courts do “not
sit as a super-personnel department that reexamines an entity’s business decisions.” Dale v. Chi.
Trib. Co., 197 F.2d 458, 464 (7" Cir, 1986) (citation omitted). Hence, this Court finds that
Aguirre has not made a sufficient showing that BDO’s proffered reason for terminating her is

pretextual.'*

* As evidence of pretext, Aguirre also alleges that Roberts told her that her termination
was unfair, and that Wise and D’ Agostin had also been considered for termination but had been
retained. (R. 32, Aguirre Mem. In Opp’n to Def.’s Mot. For Summ. J. at 4-5.) The record shows
that BDO’s Chief of Staff, Mooney, decided that Aguirre’s position should be eliminated as part
of the reorganization process. (R. 24-B, Def.’s Statement of Facts 27-31.) The record does
not show that Roberts was involved in the decision to terminate Aguirre (See R. 24-B Def.’s

43



In short, BDO has proffered a legitimate reason — reorganization and outsourcing of
instructional design work ~ for terminating Johnson-Carter’s employment, and she has failed to
show that this reason is unworthy of belief. Therefore, summary judgment is warranted on
Johnson-Carter’s termination claim because she cannot establish a prima facie case or pretext.

C. Johnson-Carter’s Harassment Claims

Finally, we also reject Johnson-Carter’s harassment claims — i.e. that she was subject to
verbal attacks and offensive comments by BDO employees. (R. 10-1, Johnson-Carter Am.
Compl. {J 10(B) and (D.) Johnson-Carter does not characterize these claims as either direct
evidence that BDO’s actions were racially motivated or as evidence of a racially hostile work
environment.

First, the instances of harassment offered by Johnson-Carter, however unpleasant or
inappropriate, do not constitute direct evidence of a discriminatory termination in violation of
Title VII. Statements offered as direct evidence of discrimination are relevant only if they are
both made by a decisionmaker and related to the employment decision at hand. Stopka v. Alliance
of Am. Insurers, 141 F.3d 681, 688 (7" Cir. 1998). Two of the alleged harrassers, Huddleston and
Nieman, were co-workers whose comments were unrelated to Johnson-Carter’s termination.
Harter, although a superior, was not involved in the decision to terminate Johnson-Carter and her
comment about Johnson-Carter’s neighborhood was unrelated to Johnson-Carter’s discriminatory
termination.

Second, Johnson-Carter’s allegations of harassment do not meet the standard for showing
a racially hostile work environment under Title VII. A plaintiff claiming a hostile work
environment must show that she subjectively perceived the environment to be hostile and that a

reasonable person would also objectively perceive the environment to be hostile. Harris v.

31


CONCLUSION

Tn sum, all four Plaintiffs have failed to present the requisite evidence to proceed to trial
and allow a reasonable jury to return a verdict in their favor. This Court is not unsympathetic to
their claims and strongly believes it is unfortunate that BDO did not exhibit more patience and
latitude with its minority employees. Yet, this Court must grant summary judgment to BDO
against all four Plaintiffs — Robbin Johnson-Carter, Sandra E. Carter, Kendra Aguirre and
Elizabeth Coy — because each of them failed to establish a prima facie case of discrimination or to
demonstrate that BDO’s reasons for its actions were pretext for discrimination.

Robbin Johnson-Carter fails to show that she was meeting BDO’s legitimate expectations
at the time of the alleged discriminatory treatment and termination or that similarly situated non-
African-Americans were treated more favorably. Furthermore, Johnson-Carter has not come forth
with evidence to discredit BDO’s proffered reason that Johnson-Carter was terminated due to the
outsourcing of her department’s work; nor has she raised an inference of pretext on her other
discrimination claims. In addition, the few comments that Johnson-Carter alleges to show a
hostile work environment, however inappropriate or unpleasant, do not rise to the level to support
this claim legally.

Sandra Carter fails to show that the actions she complains of constituted material adverse
actions, that similarly situated non-A frican-Americans were treated more favorably, or that BDO’s
reasons for its actions were pretext. She also does not allege working conditions so intolerable as
to sustain a constructive discharge claim.

Finally, both Kendra Aguirre and Elizabeth Coy fail to show that similarly situated non-
protected class employees were treated more favorably during BDO’s reorganization or that

BDO’s reasons for terminating their positions were pretext for intentional discrimination.

48


aes

(R. 19, Def.’s Mem. in Supp. of Mot. for Summ. J. at 6-7; R. 38, Def’s Reply in Supp. of Mot. for
Summ. J. at 5.) Johnson-Carter does not dispute that the outsourcing actually occurred, but
argues that this reason is pretext because she was the only instructional designer forced to work
outside her area of expertise, Mebane ignored her and excluded her from meetings and the only
other employees removed from her department on the day of her termination were either African-
American or Hispanic. (R. 36-1, Johnson-Carter Mem. in Opp’n to Def’s Mot. for Summ. J. at
6-7.) As to Johnson-Carter’s first two arguments, we have already concluded that there were
legitimate reasons why Johnson-Carter, and not Farias or Steele, was required to work in
assurance training and Johnson-Carter’s claim of being excluded from meetings is too vague
given that there is no record evidence that she should have been present at those meetings.

Moreover, Johnson-Carter’s assertion that only Hispanic and African-American women
from her department — Aguirre, Montez and Guttierez — were discharged on the date of her
termination does not contradict the fact that Johnson-Carter was terminated because her work was
outsourced during the reorganization. In addition, the record does not show that all four women
worked in the same department. From the record it is clear that Montez worked in the CPD, (R.
40, Def.’s Resp. to PI.’s Add’! Facts { 8.), Aguirre worked in Human Resources, (R. 21, App. in
Supp. of Def.’s Mot. for Summ. J., Tab D, Forgue Aff.), and it is unclear in which department
Guttierez worked (id.). Besides being “minorities,” all three women worked in support staff
positions, usually the first to be cut during a reorganization. Johnson-Carter cannot show that
BDO’s reason for terminating her is pretext simply by pointing out that another African-American
and two Hispanics were terminated on the same day. This fact does not contradict the reality of
BDO’s reorganization. Johnson-Carter’s work was outsourced in the reorganization — a

legitimate, nondiscriminatory reason for terminating her.

30


Facts {J 104, 107.) Johnson-Carter was not invited to attend these three meetings and does not
know what was discussed in them. (Jd. at { 105-106.)

Fourth, Johnson-Carter alleges that co-workers made negative comments to her about her
“people” and her neighborhood. (R. 10-1, Johnson-Carter Am. Compl. { 10D.) On one occasion,
around July 1999, co-worker Darren Nieman, upon seeing Johnson-Carter’s daughter’s braided
hairstyle with multi-colored barrettes, asked Johnson-Carter, “Why do you people decorate
yourselves?” (R. 20, Def.’s Statement of Facts { 84 (citing Johnson-Carter Dep. at 91).)
Approximately two weeks after the incident, Johnson-Carter reported the incident to Harter.
Although Johnson-Carter does not know if Harter spoke with Nieman regarding the inappropriate
comment, Nieman thereafter refrained from making other offensive comments. (Id. at {ff 87, 88.)

On another occasion, Harter herself made a comment that Johnson-Carter considered to be
racially discriminatory. While a group of BDO employees discussed Chicago neighborhoods,
Harter commented that Johnson-Carter’s neighborhood, East Rogers Park, was a “very bad
neighborhood.” (Jd. at f] 97, 99 (citing Johnson-Carter Dep. at 224).) Johnson-Carter considered
the comment to be racial because each of the neighborhoods identified in the conversation, Pilsen,
Englewood and the South Side of Chicago, have a high percentage of minorities. (/d. at { 100.)

In addition to the instances of discriminatory treatment alleged in her Amended
Complaint, Johnson-Carter also alleges that she was: (1) the only instructional designer required
to work outside her area of expertise, (R. 36-3, Johnson-Carter Add’! Facts 47); (2) denied her
request for two compensatory days off, (R. 20, Def.’s Statement of Facts ff 108, 109); and (3)
denied performance feedback, (R. 21, App. in Supp. of Def.’s Mot. for Summ. J., Tab A, Johnson-

Carter Dep. at 179-185).


1. Johnson-Carter Was Not Meeting BDO’s Legitimate Expectations

First, we agree with BDO’s contention that Johnson-Carter was not meeting its legitimate
performance expectations. Johnson-Carter concedes that she received mixed and negative
performance reviews from Mike Ross, Julie Harter and Rod Mebane during the summer and fall
of 1999. She argues, however, that prior to Mebane’s hire as head of the CPD in July 1999, she
received a positive performance review and bonus and that Mebane manufactured the negative
reviews.® (R. 36, Johnson-Carter Mem. in Opp’n to Def.’s Mot. for Summ. J. at 2, 5-6.) This
prior performance review is not in the record, however, and Johnson-Carter’s assertion in her
affidavit that its contents are positive is hearsay which is insufficient to support her claim.
Fed.R.Evid. 801(c). See also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7" Cir.
1996) (“[A] party may not rely upon inadmissible hearsay in an affidavit or deposition to oppose a
motion for summary judgment.”) (citations omitted).

Even if Johnson-Carter received a positive performance evaluation prior to Mebane’s
arrival, this fact is irrelevant because it is Plaintiff's performance at the time of the alleged
discrimination which is critical. See Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d
1106, 1113 (7" Cir. 1998) (“earlier evaluations cannot, by themselves, demonstrate the adequacy
of performance at the crucial time when the employment action is taken.”). Furthermore,

Johnson-Carter’s positive evaluation came under a prior supervisor. Jd. (“nor can such

® Johnson-Carter argues that her case is similar to Johnson v. Zema Systems, 170 F.3d 734
(7" Cir. 1999). In Zema Systems, plaintiff showed that he had met his employer’s legitimate
performance expectations by coming forward with consistently positive employment evaluations
and a recommendation from the president of the company. Jd. at 743. Johnson-Carter does not
offer the same evidence. She only points to one positive evaluation, with her latter evaluations
evidencing unsatisfactory performance. (See R. 36-3, Johnson-Carter Add’] Facts J 2; R. 20,
Def.’s Statement of Facts [] 22-26, 33-35, 38, 46-56.)

21


fails to establish the fourth prong of her prima facie case because she fails to show that similarly
situated non-A frican-Americans were ireated more favorably.
3. Pretext

In addition to failing to establish a prima facie case, Carter also cannot show that BDO’s
proffered reasons for its actions were pretext for intentional discrimination. BDO argues that a
number of the actions Carter complains of — such as limiting discussion of work-related problems
to the proper persons, checking in when arriving or leaving, apprising one’s supervisor of one’s
whereabouts and being required to stay past normal working hours — are incidents of employment
in general or of employment in a secretarial position. (R. 26-2, Mem. in Supp. of Def.’s Mot. for
Summ. J. at 9-10.) BDO also argues that Carter was required to do personal work for O’Neill
simply because O’Neill needed it done, (id. at 9), that Carter’s job was reclassified with a new job
description because Grimmer and O’Neill were having difficulty getting Carter to perform more

menial tasks, (R. 43, Def.’s Reply at 6), and that Carter was asked to affirmatively commit to the

job because Grimmer and O’Neill wanted to be sure that Carter was aware of, and committed to,

performing her duties, (R. 26-2, Def.’s Mem. in Supp. of Mot. for Summ. J. at 10). Carter
responds to these proffered reasons by pointing out that “none of the other executive assistants
were ‘reclassified’ as Carter . . . [or] under the same scrutiny as Carter.” (R. 27-1, Carter Mem. in
Opp’n to Def.’s Mot. for Summ J. at 9.) Carter is attempting to show pretext by comparing
herself to similarly situated non-A frican-American employees. See Essex v. United Parcel
Service, 111 F.3d 1304, 1311(7" Cir. 1997) (“A plaintiff may establish pretext by offering
evidence that other similarly situated employees were treated more favorably”) (citation omitted).
We have already concluded, however, that Carter’s comparisons to other employees are too vague

to conduct a similarly situated analysis. In addition to failing to establish a prima facie case on

38



her discriminatory treatment claims, Carter also fails to establish that BDO’s proffered reasons for
its actions are pretext."

B. Carter’s Constructive Discharge Claim

Carter argues that she was forced to resign from her position at BDO because she was
subject to Grimmer and O’Neill’s yelling, scrutiny, “monitoring” and “reclassification” of her job.
(R. 37-1, Carter Mem. in Opp’n to Def.’s Mot. for Summ. J. at 9-10.) BDO argues that these
allegations do not support a claim of constructive discharge. (R. 26-2, Def.’s Mem. in Supp. of
Summ. J. at 10-12.) We agree. “ ‘[T]o state a claim for constructive discharge, a plaintiff needs
to show that her working conditions were so intolerable that a reasonable person would have been
compelled to resign.” Johnson v. Nordstrom, Inc., 260 F.3d 727, 735 (7" Cir. 2001) (quoting
Chambers v. American Trans Air, Inc., 17 F.3d 998, 1005 (7" Cir. 1994) (citations omitted)). In
addition, the conditions “must be intolerable because of unlawful discrimination.” Drake v. Minn.
Mining & Mfg. Co., 134 F.3d 878, 886 (7" Cir. 1998). The Seventh Circuit has found intolerable
working conditions in extreme situations. See, e.g. Taylor v. Western & Southern Life Ins. Co.,
966 F.2d 1188, 1191 (7" Cir. 1992) (manager photographed an African-American employee while
he held a gun to the employee’s head and then circulated the picture at work, stating “this is what
an----- looks like with a gun to his head”); Brooms v. Regal Tube Co., 881 F.2d 412, 423-24 (7"

Cir. 1989) (African-American female employee was subject to a series of offensive racial and

* Carter also argues that BDO’s reasons for its actions were pretext for discrimination
because Kevin Roberts told her that she was being set up to be fired or let go. (R. 37-1, Carter
Mem. in Opp’n to Def.’s Mot. for Summ. J. at 9 (citing Carter Dep. at 215-216).) The record
does not indicate the basis of Roberts’ statement, which could be rumor or Roberts’ own opinion.
Ud.) The record does show, however, that Grimmer and O’Neill wanted someone who could
work overtime and commit to performing all the job tasks, which Carter was hesitant to do. (See
R. 27, Def.’s Statement of Facts {ff 22, 56, 68, 73-75, 79.) Roberts’ comment does not raise an
inference of race discrimination.

39


4. Pretext

Even assuming Johnson-Carter established a prima facie case on any of her discriminatory
treatment claims, which she did not, she has not come forth with evidence showing that BDO’s
reasons for its allegedly discriminatory treatment are or were: (1) factually baseless; (2) not the
actual motivation for the actions in question; or (3) insufficient to motivate the actions. Logan,
259 F.3d at 640. (See R. 36-1, Johnson-Carter Mem. in Opp’n to Def.’s Mot. for Summ. J.)
Therefore, summary judgment is proper on Johnson-Carter’s discriminatory treatment claims
because she has not established a prima facie case or pretext on any of her claims.

B. Johnson-Carter’s Termination Claim

Finally, Johnson-Carter argues that she was terminated because of her race. Because she
concedes that she has no direct evidence of discrimination, she must prove her case under the
McDonnell-Douglas burden-shifting method. In support of its motion for summary judgment,
BDO argues that Johnson-Carter cannot establish a prima facie case. More specifically, BDO
maintains that Johnson-Carter did not meet legitimate expectations and that she was treated less
favorably than similarly situated non-A frican-American employees. BDO further argues that even
if Johnson-Carter could establish a prima facie case, she has not provided evidence that BDO’s
reason for the termination was pretext for discrimination. We agree with Defendant that Johnson-
Carter cannot establish a prima facie case of discrimination or pretext and, therefore, we grant

BDO’s motion for summary judgment on the termination claim.

27


Competency Model, but later became the project manager for assurance training programs when
Mayberry transferred out of the CPD. (Jd. at 20, 21.)

In July 1999, BDO hired Rod Mebane to head the CPD. (/d. at $30.) Shortly after
arriving at BDO, Mebane asked Johnson-Carter, Farias and Steele to submit progress reports on
their current projects. (Jd. at 136.) At the time, Johnson-Carter was working on four different
auditing training courses. Ud. at § 37.) After reviewing Johnson-Carter’s project report, Mebane
determined that she was experiencing difficulty keeping projects on schedule, what he termed
“schedule slippage.” (Jd. at J 38 (citing Mebane Dep. at 27-28).) In addition, BDO alleges that
at that time Mebane did not observe any “schedule slippage” in Farias or Steele’s projects. (/d. at
39.) In light of the submitted project reports, Mebane reevaluated each manager’s workload
and in an August 6, 1999 memorandum, reassigned two of Johnson-Carter’s auditing projects to
Farias and another two projects to the program delivery subgroup. (Jd. at J 42, 43.) In the same
memorandum, Mebane stated that the reassignment would allow Johnson-Carter to commit more
time to the first level of the auditing training courses, Audit Level I. (id. at 944.) BDO also
alleges that the remaining auditing projects were back on schedule after reassignment. (/d. at
145.)

B. Evaluations of Plaintiff's Performance

Around July 27, 1999, Mike Ross, an outside consultant, met with Johnson-Carter to
review her performance and provide feedback, which he summarized in a memorandum. (dd. at
44 23, 24.) In the memorandum, Ross encouraged Johnson-Carter to continue designing practical
programs and speaking her mind, but he also made a number of critical comments regarding work

style and productivity, noting that Johnson-Carter’s approach was not structured enough and that


teorganization, along with recruiting at key colleges and universities. (id.) Because Steele had
recruiting experience at BDO and was a member of the National Recruiting Group, her
qualifications were not analogous to Coy’s. Therefore, Coy and Steele were not similarly situated
with respect to the Recruiting Manager position Steele accepted during BDO’s reorganization.
Coy and D’Agostin also were not similarly situated. As a result of the reorganization,
D’Agostin was transferred to an Administrative Assistant position in BDO’s Chicago practice
office where she continued to report to Rieckmann. Although Coy and D’Agostin may have
performed similar duties as Administrative Assistants, Coy and D’Agostin were not similarly
situated because D’Agostin worked in the National Recruiting Group and had an established

relationship with Rieckmann as her Administrative Assistant before the reorganization. In

contrast, Coy worked for two employees whose positions, just like Coy’s, were eliminated. As

such, Coy and D’Agostin were not similarly situated with respect to the Administrative Assistant
position that D’Agostin accepted after BDO’s reorganization.

Finally, Coy was not similarly situated to Gillen. Gillen began at BDO as a National

Meeting Planner/Manager in the CPD, where she managed training and professional education

meetings. (Id. at | 65.) Gillen was also the manager of BDO’s travel program. (d.) By the end

of 1999, Gillen — who had eight years of prior experience in the travel management industry —

spent fifty percent of her time on travel-related duties. (ad. at Jf] 66, 67.) During BDO’s

reorganization, Mebane decided that Gillen’s Meeting Planner position was no longer needed, and

Mooney, Director of Operations, decided that Gillen should manage BDO’s travel programs ona 4
full-time basis. (/d. at $f] 68, 69.) In February 2000, Gillen accepted an offer to work as BDO’s

Travel Coordinator. (Id. at 70.) Unlike Gillen, Coy had no experience in travel management.

Coy and Gillen were not similarly situated in regards to the travel management position that

46



el line

IV. Elizabeth Coy

A. Coy’s Termination Claim

In support of its motion for summary judgment, BDO argues that it terminated Coy, not
because of her national origin, but because her position was eliminated in BDO’s reorganization
Ptocess. (See R. 23-2A, Def.’s Mem. in Supp. of Mot. for Summ. J.) BDO does not dispute that
Coy meets the first three prongs of the McDonnell Douglas test. Therefore, the only issues in
dispute are whether Coy satisfies the fourth prong of her prima facie case and whether she can -
establish that BDO’s reason for her termination was pretext.

1. Similarly Situated Non-Hispanics Were Not Treated More Favorably

To meet the fourth prong of the McDonnell Douglas test, Coy must identify similarly
situated non-Hispanic employees who were treated more favorably in the reorganization process,
Coy argues that she was similarly situated to and treated less favorably than Rieckmann,
D’Agostin, Shari Steele and Cindy Gillen ~ all Caucasian employees. Coy alleges that she was
similarly situated to the four employees because they were all employed at the Senior Associate
level before BDO’s reorganization process. (R. 35-3, Coy Add’| Facts 114-5.) BDO argues that
Coy’s assertion that all five were at the same level is unsupported by the record. (R. 44, Def.’s
Resp. to Coy Add’! Facts 45.) We find that even if Coy had provided support in the record for
her assertions, she still would not be similarly situated to Rieckmann, D’Agostin, Steele or Gillen.

First, with respect to Rieckmann, Coy is not similarly situated because Coy lacks

Rieckmann’s experience and qualifications. Asa result of BDO’s reorganization process,

Statement of Facts; R. 33-2, Pl.’s Statement of Facts.) Roberts opinion and feelings about the
personnel decision are irrelevant and do not establish that BDO’s reason for terminating Aguirre
— reorganization — was pretext for discrimination.

44

— wentemsenies SETS PE i Sn a A te tte



staffing sources to fill BDO administrative positions, handling new hire orientations, distributing
paychecks and other administrative human resources duties. (Jd. at 23.) During the last six
months of her employment, Aguirre devoted forty percent of her time to payroll responsibilities.
(d. at 4 25.)

BDO argues that Aguirre had no prior human resources experience. (Jd. at 15.) Aguirre,
however, asserts that although she had no human resources experience in a corporate
environment, she did have “some human resources responsibilities when she worked in retail.”
(R. 33-1, Aguirre Statement of Facts 4 15 (citing Aguirre Dep. at 40).) BDO responds that this
experience was minimal — i.e. sitting in on job interviews. (R. 47, Def.’s Reply to Aguirre
Statement of Facts J 15.) BDO also argues that Aguirre has no educational background in human
resources although Aguirre asserts that she took some basic business-related courses in college.
R. 24-B, Def.’s Statement of Facts { 16; R. 33-1, Aguirre Statement of Facts 416.)

B. Aguirre’s Termination

On February 17, 2000, Aguirre learned that her position was eliminated and that her
employment with BDO was terminated. (R. 24-B, Def.’s Statement of Facts 432.) In December
1999, BDO began to examine and to reorganize the staffing in its executive and national offices.
(id. at 27.) Ken Mooney, BDO’s Director of Operations, and Marty McLaughlin, BDO’s Chief
of Staff, “determined that Aguirre’s position could be eliminated because some of her duties and
functions were eliminated, and her remaining duties and responsibilities could be assumed by
others in the restructured BDO human resources and office administration organizations.” (/d. at

131.) Aguirre denies part of this assertion by arguing that her responsibilities as Human

14


On September 14, 2000, Aguirre filed a Charge of Discrimination with the EEOC. (R. 10-3,
Aguirre Am. Compl. { 3.) On September 29, 2000, the EEOC issued a right to sue letter, which
Aguirre received on October 3, 2000. (/d.) On December 21, 2000, Aguirre filed a complaint
with this Court.

IV. Elizabeth Coy

A. Background

In February 1998, Elizabeth Coy began her employment as a Marketing Associate with
BDO. (R. 24-A, Def.’s Statement of Facts {ff 1, 4.) Coy has a bachelor’s degree in clinical
psychology from Purdue University and expects to earn an M.B.A. from Indiana University in
April 2002. (id. at §] 5-6.) Before she began her employment with BDO, Coy had several years
of experience in various occupations, including as a customer service representative, an
information operator, an executive secretary and in marketing positions. (Jd. at {{[ 7-8.) In her
Marketing Associate position with BDO, Coy performed general secretarial tasks, coordinated the
distribution of prepared marketing materials and coordinated, with other BDO personnel, the
preparation of custom marketing materials. (Jd. at { 13.)

From October 19, 1998, until the last week of February 1999, Coy was on maternity leave
from her Marketing Associate position with BDO. (id. at { 14). Because of day care and
scheduling issues, Coy eventually was offered and accepted a position as an Executive Assistant
in the Human Resources department. In this position, she reported to Julie Harter, BDO’s
Executive Director of Human Resources, and Warren. Holmes, BDO’s Director of Partner
Matters. (Id. at {ff 16-22, 24.) In Coy’s new position as a Senior Human Resources Specialist,

she mainly performed secretarial work for Holmes and Harter. (Jd. at 49 25-27.)

16


BDO’s motions for summary judgment against-all four Plaintiffs on all claims. For the reasons
stated below, Defendant’s motions for summary judgment are granted. (R. 18-1, Johnson-Carter;
R. 23-1, Coy; R. 10-1, Aguirre; R. 26-1, Carter.)
RELEVANT FACTS®

I. Robbin Johnson-Carter

A. Background

In April 1998, BDO, a national accounting and consulting firm, hired Plaintiff Robbin
Johnson-Carter as a Performance Development Manager in BDO’s Center for Performance
Development (“CPD”). (R. 20, Def.’s Statement of Facts 41 1,6.) As a Performance
Development Manager at the CPD, Johnson-Carter designed programs and materials for training
BDO partners and employees. (Id. at ff 8, 9.)

Around March or April 1999, approximately one year after Johnson-Carter was hired,
Julie Harter became head of the CPD and shortly thereafter reorganized the department. Cd. at
{7 11, 13.) Harter divided the department into two subgroups, program development and
program delivery. (/d. at ] 13.) Johnson-Carter formed part of the program development
subgroup, along with three other Program Development Managers, Mary Farias, Mark Mayberry
and Carol Steele. (Id. at ] 16.) Farias managed the tax training programs, Mayberry managed
the assurance programs, including auditing and accounting, and Steele managed the programs
used by Business Technology Solutions (“BTS”), a distinct information consulting line within

BDO. (id. at ff 17-19.) Johnson-Carter originally managed a program known as the HR

> These facts are derived from the parties’ statements filed pursuant to Local Rule 56.1.
Unless otherwise indicated, the facts included herein are undisputed.

2


ok a ie i i,

4
i
}
{
j
i
1
'
i

her department with different supervisors.” (R. 37-1, Carter Mem. in Opp’n to Def.’s Mot. for
Summ. J. at 7-8.) BDO argues that Carter’s comparison to these other employees is irrelevant
because they lacked a common supervisor. (R. 26-2, Def.’s Mem. in Supp. of Summ. J. at 8-9
(citing Radue, 219 F.3d at 618 (lack of a common supervisor “alone probably precludes a
showing of similarity because when different decision-makers are involved, two decisions are
rarely similarly situated in all relevant respects”)).)

In Zema Systems, the Seventh Circuit held that the fact that Plaintiff was the only
employee in ‘his position did not preclude a similarly situated analysis; plaintiff could compare
himself to others at the same intermediate managerial level. Johnson, 170 F.3d at 743-744,
Carter’s situation is analogous to the plaintiff in Zema Systems i in that she was the only executive
assistant in the legal department. BDO would be insulated from claims of racial discrimination if
Carter could not compare herself toe executive assistants outside the legal department. Even
though Carter’s situation is analogous to the one in Zema Systems, Carter’s allegations are too
vague to conduct a similarly situated analysis. Carter argues, without specific names and based
only on her observations, that these other employees were not monitored or under the same

scrutiny.'? (R. 37-1, Carter Mem. in Opp’n to Def.’s Mot. for Summ. J. at 8.) In short, Carter

” In her deposition, Carter compares herself to Theresa (surname unidentified), Jody
Gula, Virginia Wise, Sillisa Humphrey, Michelle Srebalis, Johns Sprenger, Brenda Huddleston,
Nancy (surname unidentified) and Robbin Johnson-Carter, (R. 29, App. in Supp. of Def.’s
Motion for Summ. J., Tab A, Carter Dep. at 88-89, 188-189),

® Tn addition, two of the nine employees cited by Carter — Sillisa Humphrey and Robbin
Johnson-Carter — are also African-American. Thus, they cannot be used as comparators in a

fourth prong similarly situated analysis as comparators must be outside the plaintiff's protected
class.

37


constitute adverse employment actions, in Johnson-Carter’s case they do not. First, Johnson-
Carter’s denial of training claim is predicated on the fact that Mebane did not approve her request
to attend a December 1999 leadership development seminar. (R. 10-1, Johnson-Carter Am.
Compl. 4 10A; R. 20, Def.’s Statement of Facts J 111-113.) This single denial did not materially
affect Johnson-Carter’s employment. She already had training in leadership development which
Mebane knew when she put in the request. (R. 20, Def.’s Statement of Facts § 112.) Second,
Johnson-Carter’s allegation that she was denied performance feedback fails given the performance
evaluations in the record. (R. 20, Def.’s Statement of Facts {{] 23-26, 33-35, 38, 46-58.) Third,
there is no evidence that Johnson-Carter had reason to participate in the meetings that she alleges
she was not invited to attend. Without more, we cannot find that Johnson-Carter’s non-invitation.
to the three meetings materially and adversely affected her employment. In short, Johnson-Carter
cannot establish the third prong of her prima facie case on any of her discriminatory treatment
claims.
3. Similarly Situated Employees Were Not Treated More Favorably

Finally, Johnson-Carter cannot show that similarly situated non-African-Americans were
treated more favorably. First, Johnson-Carter argues that she was required to work in an area
outside of her expertise unlike fellow instructional designers Farias and Steele. It is true that both
Farias and Steele worked in areas in which they had experience. The three instructional designers,
however, were not comparable. Because Farias had tax experience and Steele had experience
working with BTS, the two were needed to continue working on those training programs. When
Mayberry, the previous assurance training manager, left the CPD, it made sense to replace him

with Johnson-Carter because she had no tax experience and little BTS experience, and thus could

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBBIN JOHNSON-CARTER,

SANDRA E. CARTER, KENDRA AGUIRRE,
and ELIZABETH COY,

Plaintiffs, : 1) hy

vy. Noy

No. 00 C 8002
Judge Ruben Castillo

B.D.O. SEIDMAN, LLP, a Limited Liability
Partnership,

~—?
rey
S&S

Defendant.
MEMORANDUM OPINION AND ORDER

Plaintiffs Robbin Johnson-Carter (“Johnson-Carter”), Sandra E. Carter (“Carter”),
Kendra Aguirre and Elizabeth Coy sue B.D.O. Seidman, LLP (“BDO”) for race and national
origin discrimination’ under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
20006 et seg. and 42 U.S.C. § 1981.2. Three of the four plaintiffs, Johnson-Carter, Aguirre and
Coy, allege that BDO discriminated against them in terminating their positions. In addition,
Plaintiffs Johnson-Carter and Carter each allege harassment and discrimination in the terms and
conditions of their employment. Carter also alleges that she was forced to resign her position

because of the alleged discriminatory treatment and harassment. Currently before the Court are

' Plaintiffs Johnson-Carter, Carter and Aguirre are African-American and allege race
discrimination. Plaintiff Coy is Hispanic and alleges national origin discrimination.

2 On December 21, 2000, Plaintiffs, former employees of BDO, filed a consolidated
complaint against BDO, each alleging various discrimination claims based on race or national
origin. On February 27, 2001, the Court granted Defendant’s motion to sever for misjoinder of
Plaintiffs, dismissing the consolidated complaint. On April 11, 2001, the Court vacated the
dismissal of the consolidated complaint and later resumed jurisdiction over all four Plaintiffs’
claims. In this consolidated opinion, we will address each Plaintiff individually.


sthcsilin ld.

Therefore, BDO’s motions for summary judgment against all four plaintiffs are granted in
full. (R. 18-1, Johnson-Carter; R. 23-1, Coy; R. 10-1, Aguirre; R. 26-1, Carter.) The Clerk of the
Court is directed to enter judgment, pursuant to Federal Rule of Civil Procedure 58, in favor of

Defendant and against Plaintiffs.

Judge Ruben Castillo
United States District Court

Dated: November 5, 2001

49


A. Carter’s Discriminatory Treatment Claims

Carter alleges several types of discriminatory treatment which we will analyze under the
McDonnell Douglas burden-shifting method. Specifically, Carter alleges that she was: (1)
reclassified from an executive assistant position to a clerical position, (R. 10-2, Carter Am.
Compl. { 11A); (2) required to do personal business for various executives, (id. at ] 11B); (3) told
not to talk to anyone outside her department, (id. at { 11C); (4) monitored when arriving at and
leaving her desk, (id. at { 11D; R. 27, Def.’s Statement of Facts 54, 55); (5) ignored by her
bosses, (R. 10-2, Carter Am. Compl. { 11E); (6) required to stay late, (id. at. J 11F); and (7)
required to affirmatively commit to the reclassified job, (id. at § 11G).

BDO offers two arguments in support of its motion for summary judgment on Carter’s
discriminatory treatment claims. First, BDO argues that Carter cannot establish a prima facie case
on any of her claims because none of the actions were materially adverse, and that Carter cannot
show that similarly situated non-A frican-Americans were treated more favorably. Second, BDO
argues that even if Carter could establish a prima facie case on any of her discrimination claims,
she could not raise an inference that BDO’s reasons for its actions were pretext for intentional
race discrimination. We conclude that Carter cannot establish a prima facie case or pretext on any
of her discriminatory treatment claims.

1. Carter’s Allegations of Discriminatory Treatment Do Not Constitute
Material Adverse Actions

We agree with BDO’s contention that the actions Carter complains of do not constitute

material adverse actions. First, Carter’s claim that she was required to do personal work for

discuss this claim in her response to BDO’s motion for summary judgment. Assuming that
Carter’s hostile work environment claim still stands, it fails because the conduct she complains
of is not severe, pervasive or discriminatory in nature.

33


organize BDO’s Internet recruitment efforts, (id. at { 43.) In short, Rieckmann and Aguirre were
not similarly situated with respect to experience and qualifications.

Aguirre also was not similarly situated to D’Agostin because the two did not share
analogous attributes or experience. Before the reorganization, D’Agostin worked in the National
Recruiting Group where she performed administrative work for Rieckmann and other members of
the Group. (Id. at | 46.) During the reorganization, D’Agostin was offered and accepted a
position as an Administrative Assistant in BDO’s Chicago practice office where she continued
working as Rieckmann’s administrative assistant. (id. at 48.) Thus, D’Agostin, unlike Aguirre,
had an ongoing working relationship with Rieckmann before the reorganization process,

Another factor that distinguished Aguirre from Rieckmann and D’Agostin was that the
supervisors who determined that Aguirre’s Position could be eliminated were not involved in the
decision to retain Rieckmann and D’Agostin. See Radue, 219 F.3d at 618 (“Different
employment decisions, concerning different employees, made by different supervisors, are seldom
sufficiently comparable to establish a prima facie case of discrimination for the simple reason that
different supervisors may exercise their discretion differently.”) (citations omitted). In particular,
Mooney and McLaughlin determined that Aguirre’s position could be eliminated, (R. 24-B,
Def.’s Statement of Facts 31.) Harter and Vitoski, however, were responsible for retaining both
D’Agostin and Rieckmann. (Jd. at 1937-38, 47.) Hence, the same supervisor was not
responsible for the employment decisions that affected Aguirre, Rieckmann and D’Agostin.
Therefore, we conclude that Aguirre was not similarly situated to Rieckmann or D’Agostin and

she fails to establish the fourth prong of her prima facie case.

42


1. Johnson-Carter Cannot Show That She Was Meeting BDO’s Legitimate
Expectations or That Similarly Situated Employees Were Treated More
Favorably

We have already concluded that Johnson-Carter was not meeting BDO’s legitimate
performance expectations during the late fall of 1999 ~ the time of BDO’s reorganization and the
decision to terminate her employment. Furthermore, Johnson-Carter cannot show that similarly
situated non-A frican-Americans were treated more favorably during the reorganization. Although
Johnson-Carter does not dispute that numerous non-African-Americans were also terminated
during the reorganization, she argues that Carol Steele, a Caucasian instructional designer, was
similarly situated and treated more favorably. Steele was transferred to BTS, a spin-off company.
BDO in turn argues that Johnson-Carter cannot compare herself to Steele because they were not
similarly situated as to experience and qualifications. We agree with BDO that Johnson-Carter
was not similarly situated to Steele and thus cannot argue that Steele was treated more favorably.
Johnson-Carter, therefore, fails to meet the fourth prong of her prima facie case on her
termination claim.

In deciding whether Johnson-Carter and Steele were similarly situated, we must look at all
relevant factors, the number of which depends on the context of the case. Radue v. Kimberly-
Clark Corp., 219 F.3d 612, 617 (7" Cir. 2000) (citing Spath v. Hayes Wheels Int’l-In., Inc., 211
F.3d 392, 397 (7" Cir. 2000). In reduction in force cases where some employees are terminated

while others are transferred, the terminated employee “need not show complete identity in

28


later than 5:00 p.m. (Id. at ¢79.) Grimmer and O’Neill responded that they needed someone who
was available to work overtime and was enthusiastic about the job. (Id. at {{ 79, 80.) They also
told Carter that she needed to think about whether she really wanted to do the job. (Jd. at 80.)
Both Grimmer and O’Neill denied, when asked by Carter, that they were trying to get rid of her or
fire her. (/d. at 81.) Carter again requested more time to think about the job description, which
Grimmer and O’Neill agreed to, provided that she make a decision by Friday, March 24, 2000.
(id. at § 82.) The parties dispute what happened at the end of the work day on March 24. BDO
alleges that Carter left work at 5:00 p.m. without telling Grimmer or O’Neill if she wanted the
job. (/d. at § 83.) Carter alleges that she went to Grimmer’s office at 5:00 p.m., but that Grimmer
was on the telephone and signaled to Carter that she could leave. (R. 37-2, Carter Statement of
Facts { 83.)

On March 27, 2000, Grimmer arranged a meeting with Carter and Office Manager Kevin
Roberts. (/d. at | 84.) Grimmer reminded Carter of the March 24 deadline and again asked Carter
if she wanted the job. (Id. at ¢85.) When Carter stated that she was doing everything Grimmer
and O’Neill asked of her, Grimmer responded, “I want you to say that you want the job and quit
playing with words.” (Jd. at J 88 (citing Carter Dep. 212).) Carter refused to say that she wanted
the job, and asked if Grimmer was firing her. (Jd. at {1 89, 90.) Grimmer denied that she was
firing Carter, and Roberts also reiterated that Carter was not being fired. (/d. at {J 90, 91.) After
the meeting, Carter worked the rest of the day without incident. (id. at § 92.)

The following day, March 28, 2000, Carter gave Grimmer and Roberts a memorandum
stating that she was resigning effective immediately. (id. at 193.) Carter considered her working

conditions intolerable because Grimmer and O’Neill required her to check in when she arrived at

12


Resources Coordinator were impossible to eliminate since they were functions necessary for
running an efficient office and staff. (R. 33-1, Aguirre Statement of Facts { 31).

The parties dispute whether there were other positions available within BDO for which
Aguirre was qualified at the time of her termination. Aguirre argues that she was aware of
available administrative positions, but that she “was asked to leave the company so abruptly that
she had no chance to apply for such jobs.” (R. 33-1, Aguirre Statement of Facts { 34.) In
response, BDO points out that at her deposition, Aguirre testified that she was not qualified for
any of the positions open at the time of her termination. (R. 47, Def.’s Reply to Aguirre
Statement of Facts 34 (citing Aguirre Dep. at 92).)

C. Aguirre’s Allegations of Discriminatory Treatment

On the day of Aguirre’s termination, Robbin Johnson-Carter, Anna Montez, and Jessica
Gutierrez were also terminated. (R. 33-2, Aguirre Add’! Facts J 6.) Aguirre specifically takes
issue with the following Caucasian employees whose positions were not terminated during BDO’s
reorganization: Sonny D’Agostin and Virginia Wise. BDO notes that another employee, Denise
Rieckmann, also was retained in BDO’s reorganization. (R. 24-B, Def.’s Statement of Facts bi
39, 43.) Prior to the reorganization, both Rieckmann and D’Agostin worked in BDO’s National
Recruiting Group, the group responsible for establishing and implementing recruiting policies and
procedures (/d. at {] 36, 39, 45.) Before Rieckmann began working at BDO, she worked as a
recruiter of accounting and other professionals for three different recruiting firms. (Id. at § 40.)
D’Agostin was an Administrative Assistant in the National Recruiting Group. (Jd. at 745.) In
this position, D’ Agostin performed administrative assistant duties for Rieckmann and other

members of the National Recruiting Group. (Id. at § 46.)

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