member of a protected class, (2) she was meeting her employer’s legitimate expectations, (3) she
was subject to an adverse employment action, and (4) she was treated less favorably than others
not in the protected class who were similarly situated. Jd. If the plaintiff establishes a prima
facie case of discrimination in this manner, the burden then shifts to the defendant to articulate a
legitimate non-discriminatory reason for the adverse employment action. See, e.g., Tayfor v.
Canteen Corp., 69 F.3d 773, 780 (7th Cir. 1995). If that evidence is unrebutted by the plaintiff
or if she fails to raise a triable issue as to whether the offered reasons are pretextual, the
defendant is entitied to sammary judgment. See, ¢.g., Kulumani v. Blue Cross Biue Shield Ass'n,
224 F.3d 681, 685 (7th Cir. 2002) (“[Pretext] means a dishonest explanation, a lie rather than an
oddity or an error.”}; Rand v. CF Indus., Ine., 42 F.3d 1139, 1145 (7th Cir. 1994) (pretext means
“that a discriminatory reason more likely motivated [the defendant} or that the proffered
explanation is unworthy of credence”).

Trans Union argues that Ms. Knowles does not satisfy the fourth element of a prima facie
case. (D.E. 65 at 11.) At the outset, the Court notes that the Seventh Circuit has adapted the
fourth element in certain scenarios “to reflect the reality of the workplace.” Michas, 209 F.3d at
693; accord Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir, 1999). Trans Union relies on the
fourth element analysis as adopted in Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876
(7th Cir. 2002). Specifically, Trans Union cites Krchnavy for the proposition that, “in the
context of a RIF [a reduction-in-force], where the plaintiff's duties will be absorbed by the
remaining employees,” the plaintiff must demonstrate that “her duties were absorbed by
employees who were not members of the protected class.” (D.E, 65 at 11 (citing Krchnavy, 294

F.3d at 875-76} (collecting cases).}

20



of material fact. See Murphy v. ITT Educ, Servs., Inc., 176 F.3d 934, 936 (7th Cir. 1999}
(citation omitted). Summary judgment is proper against “a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party wil! bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
I. Discussion.

Plaintiff has failed to provide any relevant law with which to address her various and
diverse statements regarding her allegedly wrongful termination. Ms. Knowles does not explain
the purported legal relevance under applicable precedent of her, with all respect, roaming
allegations and arguments. While the Court is generally solicitous of pro se plaintiffs, Ms.
Knowles is not a pro se plaintiff; she continues to be represented by counsel. In any event, at
some point, the Court’s solicitous treatment of any litigatant (pro se or otherwise) must be
trumped by concerns for, inter alia, the need to maintain a neutral role as the adjudicator. “This
court has no duty to research and construct legal arguments available to a party, especially when
he is represented by counsel.” Tyler v, Runyon, 70 F.3d 458, 466 (7th Cir. 1995) (internal
quotation omitted); accord, e.g., LINC Fin, Corp. v. Onwuteaka, 129 F.3d 917, 921-22 (7th Cir.
1997) (collecting cases). Moreover, the Court “is not equipped to act as auxiliary lawyer for a
party.” Tyler, 70 F.3d at 466; see also, ¢.g., United States v. Berkowitz, 927 F.2d 1376, 1384 (7th
Cir. 1991) (“perfunctory and underdeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived (even where those arguments raise constitutional issues)”);
Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (stating that procedural rules “apply to
uncounseled litigants and must be enforced”). Rather than use its discretion to deem the entirety

of Plaintiff's Title VII arguments waived as a matter of course—see, e.g., LINC Fin. Corp., 129

i4



department could operate with two less employees due to the discontinuance of certain computer
systems, (D.E, 63 {9 55-58.) The company selected many employees, including mostly those
not in Ms. Knowles’s protected class, for termination. (/d. 1 65.) Shanovich and Wegrzyn
selected Ms. Knowles based on, inter alia, her lack of Forte programming skills, and her
relatively limited overall skill set and low STEP scores. (éd. {] 59-64.) Their recommendation
was reviewed and approved by representatives of Trans Union’s Human Resources department.
(Ud. 1 64.) Trans Union also sets forth unrebutted evidence explaining why Ms. Knowles, rather
than Ellen Parrish, was selected for termination, including that Parrish possessed higher
performance ratings, and was one of only two employees with experience in the tax systems. (/d.
163.)

Ms. Knowles has failed to cast meaningful, if any, doubt on Trans Union’s non-pretextual
reason for its decision to terminate her employment, and she certainly has not shown a triable
issue exists on this score. The Seventh Circuit has repeatedly instructed that a district court does
“not sit as a superpersonnel department” that reexamines the propriety, correctness, or wisdom of
any otherwise lawful personnel decision. Davis, 368 F.3d at 785 (citation omitted). Under Title
VIL, “the focus of a pretext inquiry is whether the employer's stated reason was honest, not
whether it was accurate, wise, or well-considered.” /d at 784 (internal quotation and citation
omitted); accord, e.g., id. (“[A] pretext for discrimination . .. means something worse than a
business error; pretext means deceit to cover one’s tracks.” (internal quotations and citations
omitted)).

In the case sub judice, Ms. Knowles has failed to present any evidence from which a

reasonable inference might be drawn that Trans Union was motivated by a desire to discriminate

24



Plaintiff's failure to properly bring virtually any facts before the Court is sufficient on its
own to grant Defendant’s motion, as Plaintiff has failed to adduce any evidence to forestall
summary judgment in response to Defendant’s materials. See Mafec, 191 F.R.D. at 584 (“[T]he
penalty for failing to properly respond to a movant’s 56.1(a) statement is usually summary
judgment for the movant.”). For the reasons explained below, however, even if one were to
ignore Plaintiff's fatal procedural deficiencies, Defendant would stil! be entitled to summary
judgment in any event for multiple, independent reasons.

B. Faets

Defendant, Trans Union, is a global provider of business intelligence services, including
credit reporting, primarily to consumer-oriented businesses and lending institutions. {D.E. 66 ©
10.) The company has over 3,600 employees and operates in all 50 states and more than 24
countries worldwide, (/d.) Trans Union maintains an Equal Employment Opportunity Policy
(“EEO Policy”) which provides, infer alia, that all employment decisions shall be made without
regard to an employee’s race, color, or other protected status. (/d. [ 11.) The EEO Policy is
contained in the company’s handbook, which is disseminated to all employees. (/d.}
Additionally, it is the company’s policy that all major employment decisions, including
employment terminations, must be reviewed by its human resources department for compliance
with the EEO Policy. (/d.)

1. Employment with Trans Union

Trans Union hired Ms. Knowles on October 6, 1997 as a programmer analyst in its

Enterprise Information Systems (“EIS”) department, one of eight departments under its

Information Systems and Services Division (“ISSD”). (/d. ff] 12-13.) The ISSD was headed by



In the traditional RIF case, an employer permanently eliminates a position from the
workplace. See, ¢.g., Bellaver v. Quanex Corp., 200 F.3d 485, 494 (7th Cir. 2000). RIF cases
are distinct from insubordination cases because in RIF cases, “an employer, in the course of
restructuring the business, terminates several (or numerous) employees and does not replace
them with new employees.” Miller, 168 F.3d at 313 n.1 (collecting cases; emphasis in original}.
However, in a mini-RIF, employees remaining at the company absorb the duties of their former
co-workers. See, e.g., Krehnavy, 294 F.3d at 876 (citing Michas, 209 F.3d at 693, and Gadsby v.
Norwatk Furniture Corp.,71 F.3d 1324, 1331 (7th Cir. 1995). Ms. Knowles’s termination was
part of a restructuring to reduce overall costs at the company. (See, e.g, D.E. 66 § 55-66 and Ex.
BB.) In other words, the record reflects that the termination was a part of a RIF. Less clear from
the evidence adduced is whether her termination was part of a “mini-RIF” (see, e.g., Krehnavy,
294 F.3d at 876), that is, whether employees remaining at Trans Union absorbed Ms. Knowles’s
duties. Neither party offered evidence demonstrating that other employees absorbed Ms.
Knowles’s duties and responsibilities, but this easily could be inferred from the record. The
Court need not decide this matter or speculate further about it, however, because Ms. Knowles
fails to make a prima facie case under either the traditional RIF or the mini-RIF formulation.

In traditional RIF cases, courts in this circuit apply a “fungibility” analysis, in which a
discharged plaintiff must show that she was treated less favorably than one or more similarly-
situated or equally-qualified employees not in her protected class who were retained. See, e.g.
Miller, 168 F.3d at 313. To do this, she must show “at a minimum that the [comparators]
possessed analogous attributes, experience, education, and qualifications relevant to [her

position}.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000) (collecting cases).

24


Vv. Conclusion
Ms. Knowles has not pointed to any facts raising a genuine material issue that would
defeat Trans Union’s motion for summary judgment. For the reasons set forth above, Trans

Unions’s motion for summary judgment as to Count II is granted.

Mark Filip
United States District Judge
Northern District of Illinois

So ordered.

Date: November a 2005

27



that she had no knowledge, notwithstanding the opportunity for discovery, regarding who
absorbed her duties after her employment was terminated. (See, e.g. D.E. 66 § 72 and Knowles
Dep. at 255.)

Plaintiff has failed to adduce sufficient evidence to satisfy the fourth element of the
McDonnell Douglas test. This defect is enough in itself to defeat her prima facie case and
warrant summary judgment on Count II. See,e.g., DeLuca v, Winer Indus., inc., 53 F.3d 793,
798 (Tth Cir. 1995); Villa v. City of Chicago, 924 F.2d 629, 631 (7th Cir. 1991).

B. Summary Judgment Is Warranted For the Independent Reason That Ms. Knowles
Has Failed to Create A Triable Issue Concerning Pretext.

Even if Ms, Knowles had made out a prima facie case (which she did not}, summary
judgment would be justified for the alternative and independent reason that she has shown no
triable issue concerning whether Trans Union’s articulated non-discriminatory reason for
terminating her was actually a pretext for race discrimination. To show pretext in a RIF case, an
employee “must establish that an improper motive “‘tipped the balance” in favor of discharge.”
Krehnavy, 294 F 3d at 876 (quoting Testerman v. EDS Tech. Products Corp., 98 F.3d 297,
303-04 (7th Cir. 1996)) (in turn quoting Umpleby v. Potter & Brumfield, Inc., 69 F.3d 209, 213
(7th Cir. 1995)). Itis insufficient “for the employee to show that the employer acted incorrectly
or undesirably by firing him”; instead, “the employee must show that the employer did not
honestly believe in the reasons it gave for firing him.”” Jd. (quoting Wolfv. Buss (Am) Inc., 77
F.3d 914, 919 (7th Cir. 1996).

Trans Union has produced evidence of non-discriminatory reasons for terminating Ms.

Knowles’s employment, inchuding company-wide efforts to reduce costs and the fact that the EIS

23


stated “you can teach monkeys to do anything,” when referring to the substandard work of
employees of another consulting firm, many of whom were of Indian ethnicity. (See Knowles
Dep. at 174; D.E. 66 € 71; DE. 76 927; D.E. 65 at9n.5,} To the extent such a comment was a
racist one (as opposed to simply a juvenile statement of an overly competitive consultant about
the workers of a competitor), it does not show any animus or harassment of Ms. Knowles. The
statement also is not alleged to have any connection with Defendant's decision to terminate Ms.
Knowles or that the consultant had any input into that decision. (D-E. 664 71.)

In addition, Defendant relates that Ms. Knowles testified that on one occasion, her co-
worker, Ms. Gehrt called her “girl” and a male African-American employee “boy.” (See
Knowles Dep. at 266-67; D.E. 65 at 91.5.) It goes without saying that such statements, if made
by Ms, Gehrt and if made as racist statements, are improper and wrong; however they do not
create a triable case for the jury concerning Ms. Knowles’s termination. It is undisputed that any
statements of the co-worker, Gehrt, had no connection with Trans Union's decision to terminate
Ms. Knowles. (D.E. 6671.) It is also undisputed that Ms. Gehrt had no input into the decision
of who would be terminated. (/d.) Ms. Knowles has not even attempted to demonstrate any
“causal nexus” between these isolated remarks and the company’s decision to discharge her.
Randle v. LaSalle Telecomms., Inc., 876 F.2d 563 (7th Cir. 1989), teaches that direct evidence of
discriminatory intent “must not only speak directly to the issue of discriminatory intent, it must
also relate to the specific employment decision in question.” Id., 876 F.2d at 569; accord, @.2.,
Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876-77 (7th Cir. 2002) (collecting cases
and teaching that alleged discriminatory or racist statements of non-decisionmakers do not show

discrimination with respect to challenged employment action). Moreover, “to be probative of

18



matter. (/d 51.) After an extensive investigation, Only and Savo determined that Wegrzyn had
not violated any of Trans Union’s policies or treated Ms. Knowles inappropriately. (/d.)
3. Termination

In the wake of the September 11, 2001 attacks, Trans Union’s Chief Executive Officer,
Harry Gambill, asked all executives reporting to him to identify and implement cost-cutting
measures wherever possible in their respective areas of responsibility. (/¢ 55.) In mid-to-late
August 2002, Lombardo instructed the eight senior directors who reported to him to review their
respective operations to determine whether cost reductions could be achieved either through staff
reductions or other measures. (id. 156.) After meeting with Lombardo, Shanovich met
individually with the two managers reporting to him—Wegrzyn (who managed the billing side of
the EIS department) and Shawn McNamara (who managed the sales reporting and financial
systems subgroup of the EIS department}—to review and identify areas within the department
where cost-cutting measures could be taken without compromising service levels or the integrity
of the systems being maintained. (/d. 457.) In performing the review, Shanovich, Wegrzyn and
McNamara assessed the anticipated needs and workloads for the coming year for each of the
sub-departments within the EIS department. (/d.} Based on this review, Shanovich and Wegrzyn
determined that the Legacy/Batch Billing/Taxes subgroup was over-staffed by two positions and
that one programmer analyst and one technical analyst position could be eliminated. (/d. J 58.)

To determine which employees to retain, Shanovich and Wegrzyn evaluated the relative
skills of the employees on the billing side of the EIS department and determined which
employees had specific skills or responsibilities without which the department could not operate

efficiently. (/d. 59.) Wegrzyn and Shanovich then performed comparisons of the remaining

10



training was her “most critical” assignment for the remainder of the year because, in the future,
Trans Union “would not be able to fund [an in-house] support staff as well as a team of outside
consultants.” (id. © 29.) In Ms. Knowles’s 2000 annual performance evaluation, which Wegrzyn
completed on February 6, 2001, he gave her a total STEP score of 221, which was slightly higher
than the 220 points Sipes gave her for 1999. Ud. { 34.y

At the end of 2000 or beginning of 2001, Ms. Knowles requested and was granted a
transfer back to Sipes’s supervision. (Jd § 36 and Ex. N (“Wegrzyn Aff”) 10.) As aresult,
Ms. Knowles became a member of the Phoenix team where it was expected that she utilize and
expand the Forte skills covered in the Conquest training program she undertook in 2000. (id ©
36.) Jerry Koske, one of the Conquest consultants working on the development and installation
of the Phoenix system, reported problems with Ms. Knowles’s performance. (/d. 42.) Koske
sent an e-mail outlining his concerns to his superior at Conquest, who, in turn, forwarded the e-
mail to Sipes. (Id.} Koske reported that Ms. Knowles: had not become proficient enough with
the Phoenix technologies to perform anything more than basic tasks; failed te properly
communicate issues she was experiencing; required excessive supervision in order to perform
many assigned tasks; and seemed to lack “any real understanding of what was going on in her
pattern for writing and debugging the code.” (Id.) Koske further reported that Ms. Knowles’s
weekly updates were “by far the poorest updates of all the developers.” (/d.} Sipes discussed
Koske’s email with Ms. Knowles and, thereafter, monitored her performance on the Phoenix

development team. (/d. 145.) After approximately two months of monitoring her performance,

2 In the 2000 Evaluation, Mr. Wegrzyn commented, inter alia, that Ms. Knowles

should “ask for help sooner” when she is “stuck on an assignment due to not understanding the
requirements or technical issues.” (D.E. 66 { 35.)

7



the company’s Chief Information Officer (“CIO”), Len Lombardo. (/d.) From the time of Ms.
Knowles’s hiring until approximately mid-2000, she reported to Doug Sipes, a manager within
the EIS department. (/@. 7 14.) Ms. Knowles’s main duties and responsibilities during that time
included writing computer programs and performing an overhaul of a particular computer
program. (/d.)

Sipes prepared annual evaluations of Ms. Knowles’s performance for the years 1997,
1998 and 1999, which were generally satisfactory. (/d. {{] 15-18, 25.) In these evaluations, Sipes
assigned Ms. Knowles overall “System to Evaluate Performance” (“STEP”) scores—a tool used
by the company to measure and compare employees’ performance—of 235, 230, and 220,
respectively. (id. © 15, 18, 25.) In the 1997 Evaluation, Sipes stated that one of Ms. Knowles’s
goals for the coming year was to leam new technologies such as the “Forte” programming
language. (/d. J 16.) Ms. Knowles received salary increases in 1997, 1998, and 1999. (/d. 15,
18, 25.)

In mid-2000, Trans Union reorganized the EIS department and reassigned Sipes to
oversee the development of a new computer system called “Phoenix,” which was being designed
by Conquest, an outside consulting firm. (/d. 26.) Accordingly, Ms. Knowles began reporting
to Ron Wegrzyn, but her duties and responsibilities remained the same. (/d.} Because both
Phoenix and another major system supported by the EIS department are programmed in Forte,
Wegrzyn and Tim Shanovich, the director of the EIS department, selected Ms. Knowles to be
included in a group of six employees to participate in an extensive 16-week training course in
Forte taught by programmers from Conquest. (/d. §] 27, 29.) In Wegrzyn’s periodic review of

Ms, Knowles’s job performance, he emphasized that Ms. Knowles’s completion of the Conquest



discrimination, isolated comments must be contemporaneous with the discharge or causally
related to the discharge decision-making process.” Geier v. Medtronic, Inc., 99 F.3d 238, 242
(7th Cir. 1996). Nothing in the record suggests that the comments were made near the time of
Ms. Knowles’s termination, or that Gehrt or the consultant, the persons who allegedly made the
comments, had any input in the decision regarding Ms. Knowles’s termination or the reduction in
force, (See D.E. 66 J] 55-66.) As such, the alleged statements, which are assumed to have been
made, do not create a triable issue for the jury under well settled law.

Finally, Plaintiff's bare, unsupported accusation that “[t]his is discrimination” (see, ¢.g.,
D.E. 75 at 1), without more, cannot carry the day. See, e.g., Koszola, 385 F.3d at 1111
{collecting cases; internal quotes and citations omitted), Krchnavy, 294 F.3d at 877 (dismissing
employment discrimination claim and stating that “[iJt is well settled that conclusory allegations
without support in the record do not create a triable issue of fact”) (internal quotation marks and
citation omitted); Jackson v, EJ. Brach Corp., 176 F.3d 971, 984-85 (7th Cir. 1999) (similar
statement). In short, Ms. Knowles has failed to come forward with any circumstantial evidence
to support an inference of discrimination under the direct method.

2. Ms. Knowles Also Fails to Establish A Prima Facie Case Under The
Indirect Method.

In evaluating Ms. Knowles’s alleged indirect evidence of race discrimination, the Court
applies the familiar 4fcDonnell Douglas burden-shifting analysis. See, ¢.g., Michas v. Heaith
Costs Control of Hl, 209 F.3d 687, 693 (7th Cir. 2000). The McDonnell Douglas method of
proof entails three steps. A plaintiff must first establish a prima facie case of employment

discrimination. /d. To establish a prima facie case, a plaintiff must demonstrate that (1) she is a

19



In or about November of 2000, Ms. Knowles complained to Wegrzyn that Shanovich, the
director of the EIS department, pushed her chair while she was sitting in it because he was angry
with her for failing to promptly return his phone call. (/d. “] 30-31.) Ms, Knowles claimed the
incident occurred in January of 2000. (/d.) Ms. Knowles also told Wegrzyn of her previous
allegations against Gehrt. Ud) Weerzyn immediately contacted Stacey Savo at the Human
Resources department, who fully investigated Ms. Knowles’s allegations and found no
corroboration for the alleged incidents. Although the allegations were determined to be
unfounded, shortly after Ms. Knowles lodged her complaint, she was reassigned from reporting
to Gehrt to reporting to Sipes again. (/d. § 32-33.) Ms. Knowles was happy to be reassigned to
Sipes. Ud.)

On July 19, 2002, during the second period when Ms. Knowles was supervised by
Wegrzyn, she sent an e-mail to Len Lombardo, Trans Unions’ CIO, complaining of unfair
treatment. (/d 50.) Specifically, Ms. Knowles claimed that Wegrzyn ignored and berated her
and failed to create a development plan for her; that she had not been reimbursed fora
programming class she had taken at DePaul University; that Wegrzyn gave work to a co-worker
that Ms. Knowles felt should have been assigned to her; and that Wegrzyn did all of this in
retaliation for her complaints directed at Shanovich and Gehrt, which she had made over a year
earlier. (Id) Upon receipt of the e-mail, Lombardo contacted the Human Resources department

regarding Ms, Knowles’s allegations; Ebony Only and Savo were assigned to investigate the

s Although Ms. Knowles claims this incident occurred in January 2000, by her own

recollection, she did not report this incident to anyone in management until it was announced in
mid-November 2000 (approximately eleven months later) that the EIS department was going to
be reorganized again and that Gehrt was going to be her team leader and that she still would
report indirectly to Shanovich. (D.E. 66 #31.)



against her due to her race, rather than due to the legitimate, proffered reasons with respect to her
termination. At most, Ms. Knowles has stated her own feelings that she should have been
retained and someone else terminated. Accord, e.g., Ost v, West Suburban Travelers Limousine,
88 F.3d 435, 441 (7th Cir. 1996) (holding that a “plaintiff s own opinions about her work
performance or qualifications do not sufficiently cast doubt on the legitimacy of her employer’s
proffered reasons for its employment actions.”) (collecting cases; internal citations omitted);
Gustovich v. AT & T Comm., Inc., 972 F.2d 845, 848 (7th Cir. 1992) (per curiam) (“An
employee’s self-serving statements about [her] ability . . . are insufficient to contradict an
employer's negative assessment of that ability. Such statements may create 4 material dispute
about the employee’s ability but do nothing to create a dispute about the employer's honesty—do
nothing, in other words, to establish that the proffered reason is a pretext for discrimination.”)
(citation omitted). Ms. Knowles admits that she was not aware of the criteria used by Trans
Union to determine which employees would be eliminated in the reduction in force and she
concedes that she was not aware of the entirety of Parrish’s job functions and duties before or
after the reduction in force, and specifically was not aware if Parrish was responsible for
supporting and maintaining Trans Union’s tax system. (D.E. 66 © 73); see also, ¢.g., Millbrook v.
IBP, Inc., 280 F.3d 1169, 1180-81 (7th Cir. 2002) {in order for a plaintiff to show that the
selection of another employee was pretextual, “‘the plaintiff's credentials would have to be so
superior to the credentials of the person selected for the job that no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the
job in question’”) (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 103 (24 Cir. 2001))

(further internal citations and quotation marks omitted); see also id. (teaching that “‘differences

25



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

EASTERN DIVISION
LORELEI KNOWLES, )
) Case No. 03 C 4952
Plaintiff, )
) Judge Mark Filip
¥ )
)
TRANS UNION LLC, )
)
Defendant. j

MEMORANDUM OPINION AND ORDER

Plaintiff, Lorelei Knowles (“Plaintiff” or “ Ms. Knowles”), brings this action against her
former employer, Trans Union LLC (“Defendant” or “Trans Union”). Plaintiff, who is African-
American, alleged that Trans Union violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e ef seg. (Title VII”), by subjecting her to a race-based hostile work environment (Count
I) and terminating her employment because of her race (Count II), The Court previously granted
Defendant’s motion for partial summary judgment with respect to Count I. (D.E. 37.) With
respect to Count Il, Plaintiff alleges that Defendant’s decision to terminate her was an act of

racial discrimination in violation of Title VII. (D.E. 1011.12.) This case is before the Court on



In addition to the proposed elimination of Ms. Knowles’s and Giraldi’s respective
positions in the EIS department, the managers of the seven other ISSD departments
recommended the elimination of twelve other employees, for a total of fourteen positions
eliminated within ISSD. (fd. 1 65.} Of the fourteen selected employees, eleven were Caucasian
and three were African-American. (/@.) Based on the managers’ recommendations, Lombardo
approved the job eliminations and coordinated the facilitation of those eliminations with Bradley
from the Human Resources department to ensure that the job eliminations were handled properly
and consistently, and to coordinate the ISSD job eliminations with eliminations that were taking
place in other areas of the company. (/d.)

Ms, Knowles was informed of the elimination of her position in a letter from Wegrzyn,
dated October 3, 2002, and in a face-to-face meeting with Wegrzyn and Bradley on the same
date. (Id. [66 and Ex. BB.) The letter stated that the reduction in force, effective December 31,
2002, was based upon the completion of the Bank One and Phoenix development projects, the
anticipated replacement of the batch-billing system, and the consolidation of certain subgroups in
the EIS department. (/d.) The letter also stated that Ms, Knowles was eligible for rehire if an
opportunity became available in the EIS department or anywhere else within Trans Union and
was entitled to basic severance benefits, which included five weeks pay (one week for each of her
years of service) and use of Trans Union’s career counseling services, which included resume
building, interviewing techniques, and internet job searches. (/d.) Finally, the letter explained
that, by remaining on the payroll until December 31, 2002, Ms. Knowles was eligible for
additional benefits including payment for the three weeks of vacation and retirement plan

contributions she would have been eligible for in 2003. (/d)

12



employees to determine the best candidates for retention. (/d. 60.) Specifically, they analyzed
the skills each of the employees possessed in relation to the ongoing needs of the department, the
employees’ past performance ratings included in their annual reviews, and, less importantly, the
employees’ tenure. (fd.) Based on the skill evaluation and the annual performance ratings,
Wegrzyn and Shanovich decided to terminate Ms. Knowles, a programmer analyst, and Peter
Giraldi, a technical analyst. (fd. 61.) With respect to Ms. Knowles, Wegrzyn and Shanovich
agreed that she did not possess the appropriate skills in the systems and programming languages
that were necessary for the operation of a much leaner EIS department. (/d. # 62.9%

Ultimately, the decision as to which programmer analyst would be retained in the
reduction-in-force was between Ms. Knowles and Ellen Parrish, the other programmer analyst in
the Legacy/Batch Billing/Taxes subgroup of the EIS department. (7d. 63.) Because Parrish
possessed a higher performance rating, was the person most familiar with the only functional
batch-billing system Trans Union had at the time, was one of only two employees with
experience in the Tax System, and possessed a deep knowledge of the business needs of the
batch-billing system, she was recommended over Ms. Knowles for retention. (/Z) Ebony Only
and Patricia Bradley of Human Resources analyzed the recommendation for compliance with
Trans Union’s EEO Policy. (id. 164.) After Human Resources verified compliance, Shanovich

presented the recommendation to Lombardo, who also approved of the termination. (/d.)

§ Specifically, despite extensive training, Ms. Knowles struggled with Forte and had

been removed from the team of programmers who were developing Phoenix. (D.E. © 62.) Her
lack of Forte skills and practical experience with other programming languages also precluded
her from performing many integral programming and support functions. (/d) Wegrzyn and
Shanovich assessed that most of Ms. Knowles’s skills were based in skills that many others in
the group also possessed, and which the EIS department was migrating away from. Ud.)

11



during which time her performance did not improve, Sipes decided that he could no longer assign
further Forte tasks for the Phoenix development project to Ms. Knowles and removed her from
the project. (7)

Sipes left Trans Union in or about March 2002, and Ms. Knowles was again assigned to
report to Wegrzyn. (/d. 449.) During the period she worked for Wegrzyn in 2002, her duties
included support and modified duties for Phoenix where she did not have to use Forte. (/d.)

2. Internal Complaints

On or about September 12, 1999, Ms. Knowles sent Snipes an e-mail alleging for the first
time that in May of that year, one of her co-workers, Beverly Gehrt (“Gehrt”), became upset with
her for making a typographical error in a programming code and shoved her from the back. (4. ]
22-23.) Ms. Knowles claimed that Gehrt was rude to her on September 10, 1999, and also “in
the past.” (/d, at 22).* Sipes spoke with Gehrt, and then told Ms. Knowles that he felt the
situation was resolved. (fd. 24.) Although Ms. Knowles did not agree that the situation had

been resolved, she admits that Gehrt never touched her again. (/d.)

s On February 11, 2002, Sipes issued Ms. Knowles’s performance evaluation for

2001. (D.E. 66 | 48.) Sipes gave her an overall rating of “meets job requirements,” noting that
she “exceeds job requirements” with respect to her work on the Bank One system, and that her
work on Forte in support of the Phoenix project “needs improvement.” (/d.) Specifically, Sipes
observed that, “She [Ms. Knowles] is struggling with her Forte on the Phoenix project as
previously documented. Because of her inability to apply her Forte knowledge to the Phoenix
project, I had to transfer her to other tasks for Phoenix.” (/d.) Sipes also stated that “[Ms.
Knowles] struggles with Forte assignments and this is hindering her progress in the EIS
department.” (/d.) Ms. Knowles received an overall rating of 2.11, which Trans Union equated
with a STEP score of 211 under the previous format. (/d.)

4 Ms. Knowles did not contend in the September 12th email, or at any time

thereafter, that the shoving incident was racially motivated. (D.E. 66 23.)

8



Ms. Knowles “need not show complete identity in comparing [herself] to the better treated
employee(s], but [s]he must show substantial similarity.” Jd (citation omitted). In addition, a
plaintiff typically should provide evidence of a common supervisor or decisionmaker to show
substantial similarity. See, e.g., id. at 617-18. Applying these standards, the Court finds that Ms.
Knowles falls far short. Notwithstanding the fatal point that Ms. Knowles has not properly
brought any evidence before the Court, Ms. Knowles has failed to identify other similarly
situated comparators of other races who were treated differently, as she must. To the extent Ms.
Knowles discusses Ellen Parrish, or other co-workers, Ms. Knowles fails to articulate, let alone
show, substantial similarity between herself and these employees.

With respect to the Seventh Circuit’s “mini-RIF fungibility” analysis, a plaintiff may
satisfy the fourth prong with evidence that employees who were not members of the protected
class absorbed her duties or “constructively replaced” the plaintiff following her termination. See
Bellaver, 200 F.3d at 494-95. Specifically, Ms, Knowles must show that her duties, at the very
least, were absorbed most/y by employees not in her protected class. See, e.g., id. at 495 (citing
Seventh Circuit caselaw in which plaintiff showed that duties “were absorbed mostly by younger
workers” in age discrimination mini-RIF case) (emphasis added); Kazhinsky v. Meyer & Sons,
Inc., No 02 C 7254, 2003 WL 22735867, at *5 (N.D. III. Nov. 19, 2003) (Zagel, J.) (collecting
cases and holding that, “[b]ecause half of the individuals who assumed [the plaintiff's] job duties
were in the protected class, she cannot show that her duties were assumed solely or even
primarily by employees outside the protected class”). Under this standard, Ms. Knowles does not
make a prima facie case under the mini-RIF formulation, either. Ms. Knowles failed to set forth

any evidence to support who actually absorbed her duties. To the contrary, Ms. Knowles stated

22



67. (The denials provide no citations and there are ne evidentiary materials attached to the
unsworn Response.) The Court therefore deems admitted these paragraphs of Defendant’s L.R.
56.1 statement. Accord, e.g, L.R. 56.1{a), (b)(3)(B); Malec v. Sanford, 191 F.R.D. 581, 584
{N.D, Ill, 2000) (failure to adhere to L.R. 56.1 requirements, including citation to specific
evidentiary materials justifying denial, is equivalent to admission); see also Albrechtsen v. Bd. of
Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002) (court need not attempt to scour
the record to create appropriate arguments for a litigant); Mafec, 191 F.R.D. at 583 (“Factual
allegations not properly supported by citation to the record are nullities.”).

Plaintiff also has failed to respond to paragraphs 68 through 73 of Defendant’s Rule 56.1
statement. These paragraphs are, therefore, deemed admitted. See, e.g., Kozola, 385 F.3d at
1108 (“*[A]ll material facts set forth in the statement required of the moving party will be
deemed to be admitted unless controverted by the statement of the opposing party.””) (quoting
Local Rule 56.1(b)(3)(B)).

Finally, Plaintiff claims to lack sufficient knowledge with respect to paragraphs 55-57 of
Defendant's L.R. 56.1 statement to admit or contest them. Precedent teaches that responses such
as “without knowledge or information sufficient to admit or deny” are unacceptable at the
summary judgment stage. See, e.g., Karazanos v. Madison Two Assocs, 147 F.3d 624, 626 (7th
Cir. 1998); Williams v. Elvyea, 163 F. Supp. 2d 992, 994 (N.D. IIL. 2001}. A non-movant must
establish a genuine issue of material fact to prevent summary judgment. A response that the non-
movant does not have sufficient information cannot create a dispute, and thus the Court deems
these statements of fact admitted. For this additional reason, paragraphs 55 through 57 are

deemed admitted.



F.3d at 921 (collecting cases)—however, the Court will consider Plaintiff's arguments to the
extent that the Court is able to discern them.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . race.” 42 U.S.C. § 2000e-2(a)(1).
There are two ways that a plaintiff may establish a Title VII claim. First, she may offer direct
evidence of discrimination, which is “evidence that, if believed by the trier of fact, would prove
discriminatory conduct on the part of the employer without reliance on inference or
presumption.” Davis v. Con-Way Transp. Central Express, Inc., 368 F.3d 776, 783 (7th Cir.
2004) (internal quotation omitted) (analysis of direct evidence of racial discrimination). Second,
she may offer indirect evidence under the McDonnell Douglas framework. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

A. Summary Judgment is Warranted Because Ms. Knowles Fails to Establish a
Prima Facie Case.

1, Ms. Knowles Does Not Present Direct Proof that Trans Union Terminated
Her Because of Her Race.

Ms. Knowles identifies no admission by Trans Union of the sort that precedent identifies
as typically required to constitute “direct” evidence such that she could proceed under the direct
method of proving his Title VI claims. See, e.g., Balderston v. Fairbanks Morse Engine Div. of
Coitec indus., 328 F.3d 309, 321 (7th Cir. 2003) (noting that “[d]irect evidence usually requires
an admission by the decision maker that his actions were based” on an illicit reason); see also

Rogers v. City of Chicago, 320 F.3d 748, 753-54 (7th Cir. 2003) (discussing admissions,



In addition, even if the Court were to disregard this fundamental procedural
defect—which it does not, see, e.g., Koszola, 385 F.3d at 1109 (collecting cases}—Ms.
Knowles’s attempt to offer direct evidence would nonetheless fail. She has not created a
“convincing mosaic” that establishes a triable issue as to discriminatory intent for her
termination. Rather, Plaintiff has, with all respect, simply written a stream-of-conscience-like
account of why she was really qualified and others were not and why she should net have been
fired from Trans Union. Davis, 368 F.3d at 782 (criticizing plaintiff as having “simply collected
the sum total of all the unpleasant events in her work history . . ., dumped them in the legal
mixing bowl of this lawsuit, set the Title VII blender to puree and poured the resulting blob on
the court”) (internal quotation and citation omitted). Although Ms. Knowles complains of
several ways that she was supposedly mistreated, she does not explain how those acts translate
into Liability on the part of Trans Union. In particular, she failed to assert or offer anything to
demonstrate that race was a factor with respect to the alleged mistreatment or her termination, or
for that matter, that there is any connection between any of the alleged mistreatment and her
termination.

Defendant set forth evidence of two arguably racist statements in its
papers—notwithstanding that Plaintiff does not place meaningful emphasis on either in her
papers. In the interests of thoroughness, the Court will review them. Defendant first relates that

Ms. Knowles testified at her deposition that she was “pretty... sure” that a consultant once

by Shanovich and Gehrt). (D.E. 75 at 1-2.) She does not allege that this hostility was at al!
connected to or because of her race. But, even if she had so alleged, the Court already granted
Defendant summary judgment on Plaintiff's hostile work environment claim (Count 1) on the
ground that the claim was beyond the scope of the Charge of Discrimination she filed with the
Equal Employment Opportunity Commission. (See D.E. 37.)

17



only in promoting compliance with the local rule, but also “to ensuring that [the] long-run
aggregate benefits in efficiency” that L.R. 56.1 is intended to produce are realized for the system
of justice in the Northern District of Illinois. Koszola v. Bd. of Ed. of City of Chicago, 385 F.3d
1104, 1109 (7th Cir. 2004) (collecting cases); accord, e.g., Midwest Imports v. Coval, 71 F.3d
1311, 1316 (7th Cir. 1995). In addition, the process established in L.R. 56.1 (and its predecessor,
L.R. 12(M) and (N)), helps focus and narrow the factual disputes so the court is not attempting to
guess at what fairly can be argued and inferred from an often massive factual record; that
dynamic helps to ensure that the summary judgment process best promotes fair results for all.

Defendant filed a statement of facts pursuant to L.R. 56.1(a)(3) in conjunction with its
motion. (D.E. 66.) Rather than, as the rule instructs, filing a response to Defendant’s statement
of facts (see L.R. 56.1(b)(3)(A)), and a separate statement of additional facts (see L.R.
56.1(b)(3)(B)), Ms. Knowles has included additional facts within her responses. (D.E. 76
(“Plaintiff's Response”).) The Seventh Circuit has consistently affirmed that this practice is
improper under the rule and statements contained in responses that go beyond what is necessary
to justify a denial will not be considered, See Cichon, 401 F.3d at 809 (collecting cases);
Midwest Imports, 71 F.3d at 1316-17. Thus, the Court disregards the additional statements of
fact contained in the following paragraphs of Plaintiff's Response: ff 4, 8, 11, 14, 16, 18-21, 23-
29, 31-33, 35-36, 39-49, 51, and 52-54, 59-67.

With respect to Plaintiff's denial of properly supported statements of fact, Plaintiff not
only attempts to include additional facts, but also Plaintiff's responses to the following
paragraphs of the Defendant’s Rule 56.1 statement fail to provide any record support for their

purported denials: §f[ 4, 8, 11, 14, 16, 18-19, 21, 23-29, 31-33, 35-40, 42-43, 45, 47-49, and 52-



in qualifications between job candidates are generally not probative evidence of discrimination
unless those differences are so favorable to the plaintiff that there can be no dispute among
reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the
position at issue”) (quoting Deines v. Texas Dept. of Protective and Regulatory Servs., 164 F.3d
277, 279 (Sth Cir. 1999). In fact, Ms. Knowles admits that she has no information or evidence
that the underlying decision to effectuate a reduction in force was pretextual. (See D.E. 63 §" 55-
57.) None of the evidence in the record suggests that the Defendant did not honestly believe the
stated reasons supporting the decision to select Ms. Knowles for termination.

Finally, Ms. Knowles presents no evidence of discriminatory animus, nor any evidence
that would tend to disprove that Trans Union was motivated by a desire to cut costs and
unnecessary expenses. (See, ¢.8., DE. 66 55-56.) Reducing costs js obviously a legitimate
goal for a business—see, ¢.8., Michas, 209 F.3d at 695——including for a business that operates in
a competitive marketplace like Trans Union. The fact that the overwhelming majority of
terminated employees were white—eleven of fourteen——also cuts against a finding of pretext.
(See id. § 65.)

The Court thus finds that Ms. Knowles has failed to present evidence sufficient to create a
genuine question of material fact as to whether Trans Union’s facially legitimate reasons for
discharging her were pretextual. Summary judgment is independently warranted on such basis,

even assuming a prima facie case had been shown.

26


Defendant’s Motion for Summary Judgment on Count II. (D-E. 65.}' For the following reasons,
Defendant's motion is granted.
IL Relevant Facts

A. Lack of Compliance with Rule 56.1

The relevant facts are taken from the parties’ filings under Local Rule 56.1 (“L.R. 56.1”).
As is the practice in this district, the Court only considers those facts or additional facts that are
presented in conformity with L.R. 56.1.

The Seventh Circuit has “consistently and repeatedly upheld a district court’s discretion
to require strict compliance” with L.R. 56.1. See Bordelon v. Chicago Sch. Reform Bd. Of Trs.,
233 F.3d 524, 527 (7th Cir. 2000); accord Cichon y. Exelon Generation Co., LLC, 401 F.3d 803,
809 (7th Cir. 2005). The Seventh Circuit and district courts have not been wedded to
enforcement of the local rule as a matter of mere formalism. Rather, precedent acknowledges

that it is a “reasonable judgment” that “consistent, ‘bright-line’ enforcement is essential”—not

‘ In this case, Plaintiff was represented by Valda Staton and Paul Anthony Brady.
(See DE. 6; DE. 23; and D.E. 26.) Ms. Staton has been designated as the lead attorney since she
and Mr. Brady entered their appearances shortly after the case was filed in 2003. (D.E. 6.) In
September 2005, Mr. Brady sought to withdraw (i) because he received “limited cooperation at
best from both the plaintiff and her nonresident counsel for the past year” (In May of 2004, Ms.
Staton relocated from Chicago to Washington, D.C. (D.E. 23)) and (ii) because of “medical
reasons . . .[such that he] can no longer act as counsel.” (D.E. 70.) Mr. Brady came to court and
explained that he had suffered a stroke and had been directed by his doctors to cut back on his
work commitments, such that he no longer could continue in the case. Under those
circumstances, the Court allowed him to withdraw and to leave Ms. Staton as counsel for
Plaintiff. (D.E. 73.) At that time, the Court sua sponte extended the deadline for Plaintiff to file
responsive papers to the pending summary judgment motion, which deadline had already passed,
and the Court gave Ms. Staton and Plaintiff 30 days to file a response to the motion. Ms.
Knowles has chosen to file papers in opposition to Defendant’s motion for summary judgment on
Count II pro se. However, she continues to be represented by Valda Staton, as she has been since
the Fall of 2003.



On October 31, 2002, Ms. Knowles sent an e-mail to Lombardo, in which she requested a
meeting to discuss the elimination of her position and her belief that she had been unfairly
chosen for termination. (id. § 68 and Ex, CC.) In the e-mail, Ms. Knowles stated that she
believed she was terminated for lodging previous complaints against Gehrt, Shanovich, and
Wegrzyn, but she did not mention that she believed she had been selected for termination based
upon her race. (/d.) Lombardo and Bradley from Human Resources met with Ms. Knowles on
November 8, 2002. (fd) During this meeting, Lombardo and Bradley reiterated that the
elimination of Ms. Knowles’s position was a business decision based on the reduced needs of her
department and the relative skills of the EIS department’s employees. (/d.) Ms. Knowles did
not mention at this meeting that she believed her race was a factor in the decision to terminate
her employment. (/d.)

Ms. Knowles then requested a meeting with Trans Union’s Chief Executive Officer,
Harry Gambill, regarding her pending termination. (id. 170.) Gambill granted Ms. Knowles’s
request for a meeting and he and Executive Vice President, Mary Krupka, met with her. (/d.)
Gambill and Krupka confirmed the business reasons for her termination. (/d.}

i. Standard of Review

Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ, P. 56(c). The nonmovant cannot rest on the pleadings alone, but
must identify specific facts, see Cornfield v. Consol. High Sch. Dist. No, 230, 991 F.2d 1316,

1320 (7th Cir. 1993), that raise more than a scintilla of evidence to show a genuine triable issue

13



convincing-mosaic analogy, and the direct method of proof), Castleman v. ACME Boot Co., 939
F.2d 1417, 1422 (7th Cir, 1992) (teaching that direct evidence will “rarely” be found).

Plaintiff may also prevail under the direct method if she presents “a ‘convincing mosaic’
of circumstantial evidence that allows a jury to infer intentional discrimination by the
decisionmaker.” Koszoia, 385 F.3d at 1109 (quoting Rhodes v. Hl. Dep't of Transp., 359 F.3d
498, 504 (7th Cir. 2004)). “That circumstantial evidence, however, must point directly to a
discriminatory reason for the employer’s action’” at issue. Koszola, 385 F.3d at 1109 (quoting
Rhodes, 359 F 3d at 504).

Ms. Knowles claims, inter alia, that she was harassed and assaulted by Gehrt and
Shanovich and Trans Union “did nothing to protect [her] against future acts of violence,” that
each year she “did more complicated work but received less points and less of a raise”, that Trans
Union provided a co-worker “with a mentor and no one to mentor” her, that Wegrzyn “berated
[her] in front of her coworkers,” that “Shanovich and Wegrzyn should not have been allowed to
determine [her] employment . . ., [because] [t]hey were just retaliating,” and she received less
training that twe co-workers (including Parrish), (D.E. 75 at 1-3.) As an initial matter, none of
these claims are supported by competent evidence within the requisite framework set forth by the

local rules. As a result, Ms. Knowles’s argument fails on that basis alone.*

3 To the extent Plaintiff attempts to give life to a retaliation claim here, the Court

respectfully disregards any such claim. Plaintiff may not amend the complaint through
arguments in her brief in opposition to a motion for summary judgment. See, e.g., Shanahan v.
City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (citing Car Carriers, Inc. v. Ford Motor Co.,
745 F.2d 1101, 1107 (7th Cir. 1984). In any event, there is no evidence before the Court that
Trans Union retaliated against Ms. Knowles for engaging in protected activity under Title VII.
8 Moreover, and, independently, a significant portion of Plaintiff's brief is dedicated
to her unsupported allegations that she was subject to a hostile work environment (i.e., attacked

16