implicated in Baker’s EEOC complaint. Accordingly, I find that these claims are barred because
they are not contained in or reasonably related to Baker’s EEOC complaint.

Third, Pactiv argues that Baker’s claims of discrimination and retaliation fail because he
cannot establish a prima facie case of discrimination and/or retaliation. In the absence of direct
evidence of race discrimination and/or retaliation,” the plaintiff must establish a prima facie case
for discrimination and/or retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie case for discrimination, the plaintiff must show that he is a member of
a protected class, he suffered an adverse employment action, he was performing his job
satisfactorily, and similarly situated employees who were not members of the protected class
were treated more favorably. Jd. Similarly, to establish a prima facie case for retaliation, the
plaintiff must show that he engaged in a protected activity, he suffered an adverse employment
action, and a causal connection existed between the adverse employment action and the protected

activity. Smart v. Ball State Univ., 89 F.3d 437, 440 (7" Cir. 1996), Once the plaintiff makes out

? Baker does not present any direct evidence of discrimination, but he does point to some
statements that he believes provide direct evidence of retaliation. These statements are as
follows: (1) Danko told Baker in January 2003 “you're doing everything as expected, the only
problem I have is that you’re continuing to struggle with Pactiv as a company because of the
charges you file,” (2) Danko told Baker in January 2003 that Baker was a “bitter person” due to
his EEOC charges, and (3) Baker told Danko in mid-January 2003 that Reva Schneider made a
false complaint against him, and Danko asked Baker whether he was going to file an EEOC
complaint. Even if these statements were assumed to be true, they are not direct evidence of
retaliation because they were made over a year after the alleged adverse employment action took
place. See Markel v. Bd. of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 910 (7" Cir. 2002)
(statements made two months prior to the adverse action were not contemporaneous as required
by case law and therefore not direct evidence of discrimination); EEOC v. Outsourcing Solutions,
Inc., No. 01 C 7037, 2002 U.S. Dist. LEXIS 20541 at *23 (N.D. Ill, Oct. 23, 2002) (In finding
that a supervisor’s statement that he was not allowed to promote any employees involved in a
lawsuit was not direct evidence, the court noted that the alleged statement came two months after
the promotion was made).



a poorer performance review and lower merit increase than was deserved, false and unresponded
to complaints, and a counseling e-mail. Baker offers no evidence to support these claim other
than to say he “believes” them to be true. Baker does not identify any non-black, non-
complaining, similarly situated employees who were treated more favorably. Baker has not
identified any non-black, non-complaining employees reporting to Danko who received a better
evaluation and raise,’ any instances where Pactiv disciplined employees for making false
complaints, or any instances where an employee had not received counseling e-mails after failing
to make what the manager felt was an adequate investigation of a project.° Therefore, I find he
cannot establish a prima facie case for discrimination.

Finally, Pactiv argues that even if Baker could establish a prima facie case, his claims
would still fail because he cannot establish that Pactiv’s actions were a pretext for discrimination
or retaliation. Pactiv has offered the following evidence of nondiscriminatory motives for the
complained of actions: Pactiv claims the less than desired review/merit increase and the
counseling e-mail were based on Baker’s job performance, the posting of an incorrect schedule
was a mistake, and not reprimanding employees for filing false complaints was standard
procedure. To establish pretext, Baker must prove, by a preponderance of the evidence, that the

legitimate reasons offered by Pactiv are merely a false pretext for discrimination and/or

5 As for the review/merit increase, Pactiv presents the following evidence that directly
rebuts Baker’s claims of discriminatory treatment: the white employee under Danko’s
supervision who received the same 3.0 performance review was given the same 3% merit
increase as Baker, and the other black employee under Danko’s supervision received the highest
performance rating given by Danko of 3.8 and received the highest merit increase of 4.6%.

§ Baker also complains about an incorrect schedule posted by Danko. It appears that this
schedule also affected the other non-black technician working under Danko.

7


this requirement is to give the defendant notice of the factual basis of the discrimination claims
and allow the EEOC and the employer the opportunity to settle the dispute. Id.

Baker argues that the false complaints, Pactiv’s failure to discipline the co-workers for
making false complaints, the incorrect schedule, and the counseling e-mail were encompassed by
his EEOC complaint because they contributed to his complained of review and merit increase.
While a Title VII plaintiff need not allege each and every fact that forms the basis of his
complaint, he may only make allegations that are reasonably related to those contained in his
EEOC complaint. Jd. To be considered reasonably related, allegations raised in a lawsuit must
“at minimum, describe the same conduct and implicate the same individuals” as the conduct and
the individuals implicated in the EEOC charge. Jd. at 500 (emphasis in original).

Baker’s claims concerning the false complaints, Pactiv’s failure to discipline his co-
workers for making those complaints, and the counseling e-mail fail to meet this standard. The
claims concerning the allegedly false complaints made by Baker’s co-workers, Pactiv’s response
to those complaints, and the counseling e-mail do not concern the same individuals as those
implicated in Baker’s EEOC complaint. The only person implicated in the EEOC complaint was
Walter Danko, the supervisor responsible for Baker’s review and raise. The allegedly false
complaints against Baker were made by two co-workers, Reva Schneider and Althea Fikso, and
were handled! by Pactiv’s human resources personnel, none of whom were implicated in the

EEOC complaint. The counseling e-mail was sent by Wenxiu Zhang who also was not

' There is some dispute over whether these complaints were actually made. For the
purposes of this motion, I assume they were made by Baker’s co-workers and that Pactiv did not
formally respond to them.



his prima facie case, the burden shifts to the defendant to present a legitimate, non-
discriminatory basis for the adverse action. Cowan v. Glenbrook Sec. Servs., 123 F.3d 438, 445
(7" Cir, 1997); Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1007 (7% Cir. 2000). If
the defendant is able to do so, the burden shifts back to the plaintiff to establish that the proffered
reason is merely a pretext for discrimination and/or retaliation. Cowan, 123 F.3d at 445; Miller,
203 F.3d at 1007.

N

To prove his prima facie cases for employment discrimination and retaliation Baker must
show that he was subject to an adverse employment action. MeDonnell Douglas, 411 US. 792;
Smart, 89 F.3d 437. Baker admits that the false complaints, Pactiv’s failure to discipline his two
co-workers for making the false complaints, the posting of an incorrect schedule, and the receipt
of a counseling e-mail were not, in and of themselves, adverse employment actions. Baker
argues that these instances all contributed to his receipt of a lower than expected merit increase,
which he claims did constitute an adverse employment action.? Not everything that makes an
employee unhappy is an actionable adverse action. Smart, 89 F.3d at 441. Only tangible
employment actions that cause a significant change in employment status constitute actionable
adverse actions. Burlington Indus. v. Ellerth, 524 U.S. 742, 753 (1998). Examples of actionable
adverse actions include hiring, firing, failing to promote, reassigning with significantly different
responsibilities, and a decision causing a significant change in benefits. Jd. The action must

cause a materially adverse change in the terms and conditions of employment that is “more

> Baker’s allegedly poorer than deserved performance review is not, by itself, sufficient
to constitute an adverse employment action. Smart, 89 F.3d at 442. Thus, I will consider the
review, like the other instances, as a factor contributing to the less than expected merit increase.

5



Sat

retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Other than
his own personal opinion, Baker presents no evidence showing that he deserved either a better
performance review or a larger merit increase,’ that the counseling e-mail was improperly
motivated, that the posting of the incorrect schedule was improperly motivated, or that Pactiv’s
failure to discipline the employees who made false complaints against him was improperly
motivated. An employee's self-serving statements, with nothing more, are not enough to
overcome a defendant's legitimate explanation for the alleged action. Hall v. Gary Cmty. Sch.
Corp., 298 F.3d 672 (7th Cir. 2002). Accordingly, I find that Baker cannot establish that Pactiv’s

proffered motivations were pretextual.

For the reasons set forth in this opinion, Defendant’s Motion for Summary Judgment is

GRANTED.

United States District Judge

pare, APR 18 2004

7 In fact, the evidence seems to be to the contrary. See Fn. 5. Additionally, Baker admits
that prior evaluations made by Danko were fair even though those evaluations were given after
Baker filed his first and second charges with the EEOC.

8


Py
te
L Minuie Order Form (06/97)

rs

United States District Court, Northern District of Illinois

‘esgic | James B.Zagel__ | Suet

CASE NUMBER 02 C 8562 DATE 4/13/2004

CASE BAKER vs. PACTIV CORP.

TITLE

[In the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
¢)) oO Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) oO Answer brief to motion due___. Reply to answer briefdue____.
(4) Oo Ruling/Hearingon__setfor___—_aat
(S) a Status hearing[held/continued to] [set for/re-set for]on__—setfor_ at
(6) oO Pretrial conference[held/continued to] (set for/re-set for]on___setfor__—at__—S;
(7) o Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to__—_at
.| @) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 OOFRCP41(a)(1) OO FRCP41(a)(2).

a0 [Other docket entry} Motion (17-1) to strike is denied as moot. Defendant’s motion (18-1) for

summary judgment is granted. Enter Memorandum Opinion and Order.

(11) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
‘No notices required.
Notices mailed by judge’s staff. PR 1 4 2004
Notified counsel by telephone. A dite docketed
wo | Docketing to mail notices,
ao | Mail AO 450 form. juno iste
Copy to judge/magistrate judge. a
pw Seputys CaS id Cf cd 4092
‘ initials
Date/time received in
£ Sentral Clerk's Office

cic. dd



disruptive than a mere inconvenience or an alteration of job responsibilities.” Crady v. Liberty
Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7" Cir. 1993).

Baker’s merit increase of 3% was lower than the 5% increase that he had expected. This
led to a difference of approximately $920.4 Essentially, Baker argues that a lesser merit increase
should be viewed in the same way as a decrease in wages and should constitute a fundamental
change in the terms of his employment. However, the two are fundamentally different. Unlike
wages, merit increases are given on a discretionary basis; they are not entitlements. Thus, a
lower than expected merit increase did not constitute an adverse employment action. See Miller,
203 F.3d at 1006 (decision not to give employee the higher raise she demanded was not an
adverse employment action when employee was not automatically entitled to a larger raise);
Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7" Cir. 1996) (lower performance rating that led to loss
of bonus was not an adverse employment action because employee was not automatically entitled
to receive a certain bonus); Speer v. Rand McNally & Co., No. 95 C 6269, 1996 U.S. Dist.
LEXIS 17071 at *21-22 (N.D. Ill Nov. 14, 1996) (lower performance rating that led to a smaller
raise than the employee expected was not a materially adverse employment action because
employee was not entitled to a specific raise). Accordingly, I find Baker is unable to establish a
prima facie case for either employment discrimination or retaliation.

Pactiv also argues that Baker cannot establish a prima facie case for discrimination
because he cannot show that another similarly situated employee outside the protected class was

treated more favorably. McDonnell Douglas, 411 U.S. 792. Baker claims that he alone received

* Baker also claims this difference will be carried forward in any future raises as those
Taises are given as a percentage of current salary.

6


myo
3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION Dock;
BARRY S. BAKER,
APR 1 4 2006
Plaintiff,
v. No. 02 C 8562
Judge James B. Zagel

PACTIV CORP.,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Barry Baker is a current employee of Defendant Pactiv Corporation (“Pactiv”).
On August 19, 2002, Baker filed a charge with the Equal Employment Opportunity Commission
(“EEOC”) alleging race discrimination and retaliation with respect to his 2002 performance
review and raise. After that charge was dismissed by the EEOC, Baker filed this lawsuit. Baker
alleges that he was subject to the following adverse employment actions on the basis of his race
and on prior lawsuits and charges filed with the EEOC: (1) a worse performance review than was
deserved, (2) a lower merit increase than was expected, (3) two false accusations made by co-
workers, (4) a failure by Pactiy to discipline the two co-workers who made the false complaints,
(5) the posting of an inaccurate schedule by his supervisor, Walter Danko, and (6) the receipt of a
counseling e-mail from a manager, Wenxiu SZhao.

Pactiv now moves for summary judgment on all of Baker’s discrimination and retaliation
claims. Summary judgment is proper when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322-323 (1986). In determining whether any genuine issue of material fact exists, I must



construe all facts in the light most favorable to the non-moving party and draw all reasonable and
justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A
genuine issue of fact exists only when, based on the record as a whole, a reasonable jury could
find for the non-movant. Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999).

First, Pactiv argues that Baker’s claim relating to the allegedly incorrect schedule posted
by Danko in March 2001 is time barred because the incident occurred more than 300 days before
Baker filed his EEOC complaint in August 2002. See Beckel v. Wal-Mart Assoc., 301 F.3d 621,
622-24 (7" Cir, 2002). Baker argues that since this claim is closely related to discriminatory
action, i.e. the review/merit increase, that did take place within the 300 day period, it is not time
barred. However, “[d]iscrete discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a
new clock for filing charges alleging that act.” Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d
1014, 1026-1027 (7" Cir. 2003)(quoting AMTRAK v. Morgan, 536 U.S. 101 (2002)). Thus, I
find that Baker’s claim concerning the incorrect schedule is, in fact, time barred.

Second, Pactiv argues that Baker’s claims relating to the alleged false accusations made
by two co-workers, the failure of Pactiv to reprimand the co-workers for making false
accusations, the posting of the incorrect schedule, and the receipt of a counseling e-mail are
barred because they were not raised in or fairly encompassed by Baker’s EEOC charge. As a
general rule, any discriminatory acts alleged in a federal lawsuit must be contained within the
underlying charge of discrimination filed with the EEOC or fairly encompassed within that

charge. Cheek v. Western & S. Life Ins, Co., 31 F.3d 497, 500 (7" Cir. 1994). The purpose of