differentiating or mitigating circumstances as would distinguish their conduct or the employer's
treatment of them.” /d. at 617-618 (emphasis added).

In this court’s view, Maiter has not met this test. First, it is undisputed that Maiter reported
to Gardiner throughout her employment with Harris Bank, and that Gardiner made the decision to
discharge her. There is no evidence to suggest that Gardiner was also involved as a decision-
maker for Vardalos or Demarco. Vardalos did not work as a Branch Manager in the West Region
and was not supervised by Gardiner. Gardiner has no. knowledge about Vardalos’s alieged
changing of loan documents and does not know anything else about his performance.’ See
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (employees with different
supervisors not similarly situated). Demarco, an Assistant Branch Manager and Personal Banker,
was supervised by Keeter. Gardiner did supervise Keeter, but Gardiner does not know whether
Demarco actually failed to obtain proper customer identification when opening a bank account, and
is not familiar with that particular incident. Moreover, Gardiner’s uncontroverted deposition
testimony is that if the Demarco incident had indeed occurred, Keeter, and not Gardiner, would
have been the supervisor deciding whether to discharge him. /d. See also Plairv. E.J. Brach &
Sons, Inc., 105 F.3d 343, 349 n.3 (7th Cir. 1997) (where different decision-makers are involved,

employees are rarely similarly situated).

7 Maiter argues that, although they did not work in the same region, she was
nevertheless similarly situated to Vardalos since they were both Branch Managers supervised by
acommon supervisor: Harris Bank. This argument misreads the test set forth in Radue, 219 F.3d
at 612. The court in that case explained that different employment decisions “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.” Radue, 219
F.3d at 618. Thus, Radue explicitly recognizes that different supervisors may exercise their
discretion differently without creating a prima facie showing of disparate treatment. Under Maiter’s
reading of the Radue test, in every employment discrimination case the plaintiff will be able to find
that the (often) corporate defendant is the common supervisor. Maiter cites no authority for such
a theory, and the court is not aware of any.

13


In September 2001, while Gardiner was vacationing in South Carolina, she received a
phone call from Dave Franzen, who was Regional Finance Manager at the time. (Gardiner Dep.,
at 22, 28). Gardiner recalls that Franzen told her he had received a phone call from an ex-
customer of the Bank, Franca Medigovich (“Medigovich”), who had made certain allegations about
Maiter relating to service charge reversals. (/d. at 28.) Gardiner instructed Franzen to ask
Medigovich to provide the information in writing. (/d.) Later, Gardiner called Maiter and asked her
whether she knew what Medigovich had been talking about. (/d. at 29; Maiter Dep., at 114.) In this
conversation, Maiter described the circumstances in which Medigovich’s account was closed.
Gardiner was satisfied with Maiter’s explanation, concluded that Maiter had handled the matter
appropriately, and undertook no further investigation of Medigovich’s allegations. (/d. at 28-29.)

On November 14, 2001, Harris Bank again heard from Ms. Medigovich, by way of an e-mail
message in which Medigovich asserted that Maiter had disclosed confidential customer information,
reversed service charges, and performed other inappropriate favors for her friends, including her
boyfriend, Timothy Kidd. (Def. Facts j 18; Gardiner Dep., at 27, 30; Pl. Ex. 5 to Def. Motion.)
Gardiner testified that West Region President Bell gave her a copy of this e-mail message.
(Gardiner Dep., at 27.) In response, Gardiner initiated an investigation of some of the accounts
identified in Medigovich's message. (Def. Facts ] 17; Gardiner Dep., at 27; Pl. Ex. 5 to Def.
Motion.) In reviewing records of Kidd's account, Gardiner found four service charge reversals on

his checking account between February and May 2001. (/d. J 19; Gardiner Dep., at 30-31; Def.

‘(...continued)

permanent record (id. at 62), and that during meetings, Gardiner, her assistant Carrie Rhodes, or
the administrative specialist esha Johnson would take handwritten notes on the agenda. (/d. at
63.) Maiter does not remember that reversal of service charges on employees’ personal accounts
was ever discussed at the September meeting. (/d. at 72.) Neither party has submitted copies of
notes which the September Agenda appears to contemplate would be taken by Brian Watson (see
Def. Ex. 5, bottom, “Note Taker: Brian Watson"). Although the parties have devoted significant
attention to this matter, the court concludes it is not material to the outcome of this motion.
Whether or not Maiter was formally notified about the Bank's policy for waiving charges, the record
shows that it was this policy that led to a review of Maiter’s own accounts, described below.

4


concerning the incident is limited to what Vardalos himself told her in a telephone conversation just
after Maiter’s termination; she does not know whether any of Vardalos’s supervisors knew about
the alleged behavior, nor does she know what action, if any, Harris Bank took in response. (/d.
1 49; Maiter Dep., at 119-122.)° Maiter does not believe the loan for which Vardalos allegedly
changed documents was for himself, nor does she know specifically whether or how Vardalos may
have benefitted personally from his misconduct. (/d. §{ 50; Maiter Dep., at 120-21.) Maiter claims,
however, that if a manager changed loan documents to increase the loan totals for the quarter, the
manager would get a large quarterly manager's incentive. (Maiter Dep., at 121.)

Maiter claims she heard from Rebecca Keeter that at some time between 1998 and
November 2001, Vince Demarco violated Harris Bank policy by not requiring proper customer
identification when opening a bank account, causing a $10,000 loss to the Bank. (Def. Facts 51;
Maiter Dep., at 123, 125.) Maiter does not know whether Demarco benefitted personally from the
alleged behavior and does not know what action, if any, Harris Bank took in response. (/d. { 52;
Maiter Dep., at 125.) At the time of the alleged incident, Demarco was an Assistant Manager
and/or Personal Banker and was supervised by Keeter who, in turn, was supervised by Gardiner.
(id. 53; Maiter Dep., at 123-24; Gardiner Dep., at 59-60.) Gardiner testified that she was not
“familiar with anything in particular” about the incident, does not know if the incident occurred, and
“cannot speak with any level of competence” about it. She also notes that Keeter would have been
responsible for dealing with the incident herself. (/d.; Maiter Dep., at 125; Gardiner Dep., at 60-61.)

60-61.)

6 The court assumes Vardalos’s statements are admissible as statements against his

interest, see FED. R. EviD, 804(b)(3), but notes some curiosity about Maiter’s failure to provide an
affidavit from him.


service charge reversals that Henderson processed. (/d. | 30; Gardiner Dep., at 36, 44; Maiter
Dep., at 101.) Gardiner testified that, had Maiter asked her, Gardiner would not have approved all
of the service charge reversals because she believed that Maiter, as a Bank Officer, should have
managed her personal accounts responsibly. (/d. {{ 31; Gardiner Dep., at 38-39.)

Upon discovering the service charge reversals on Maiter’s joint account with her mother,
Gardiner considered Maiter’s conduct to constitute potential misappropriation of bank funds for
personal gain. (/d. 32; Gardiner Dep., at 44-45.) For this reason Gardiner asked John ("Jack")
Laurie from the Bank's Corporate Security department to conduct a further investigation. (/d.;
Gardiner Dep., at 20, 43, 45.) On November 19, 2001, Laurie interviewed Maiter at the bank office
in downtown Chicago about the service charge reversals on the joint account. (/d. {| 33; Gardiner
Dep., at 49-50; Maiter Dep., at 94-95.) At the conclusion of the interview, Maiter signed a written
statement in which she asserted that her mother, who had been battling cancer, “contacted
Henderson to have these fees reversed.” (/d. {ff 34- 35; Maiter Dep., 97-98; Def. Ex. 12 to Def.
Motion.) Also on November 19, 2001, Henderson reported to Gardiner that Maiter had called her
right after the interview and asked Henderson to lie by telling Laurie that it was Maiter's mother, not
Maiter, who had requested the service charge reversals. (/d. ] 37; Gardiner Dep., at 50-51.)>

Maiter does not admit that she asked Henderson to reverse the service charge fees on
Maiter’s joint account with her mother. (Id. ] 35; Maiter Dep., at 98; Def. Ex. 12 to Def. Motion.)

Harris Bank, however, has submitted as an exhibit in support of its motion for summary judgment

3 Inher deposition, Gardiner testified that she received an “hysterical phone call” from

Henderson who reported that Maiter had called her and asked her to attribute the request for a
reversal of service charge fees to Maiter’ 's mother, rather than to Maiter herself. (Gardiner Dep.,
at 50-51.) While what Henderson told Gardiner about Maiter’s phone call is hearsay, i.e. an out-of-
court assertion offered for its truth, it may be admissible under the then-existing state of mind
exception to the hearsay rule. See FED, R. Evip, 803(3). Furthermore, as Maiter has not responded
to Harris Bank's Statement of Undisputed Facts as required by Local Rule 56.1, Harris Bank's
assertion that Maiter asked Henderson to lie about who requested the service charge reversals is
presumed true for the purposes of, this summary judgment motion. _

6


Ex. 8, 9 to Def. Motion.) Gardiner also investigated Maiter’s own Harris Bank accounts and
discovered service charge reversals, noted as “courtesy reversals,” on October 15, October 19, and
November 8, 2001 in an account held jointly by Maiter and her mother. (/d. fff 20-22; Maiter Dep.,
at 90-94; Gardiner Dep., at 31, 38; Def. Ex. 10, 11 to Def. Motion.) Maiter acknowledged that she
benefitted financially from these charge reversals. (/d. | 24; Maiter Dep., at 154-55.) Henderson,
who was Maiter’s subordinate, had processed the October 19 and November 8 reversals at Maiter’s
request.” (/d. J] 23; Maiter Dep., at 90-94; Def. Ex. 11 to Def. Motion.)

As Henderson's supervisor, Maiter evaluated Henderson's performance, had input into her
compensation, determined her schedule, and could approve or deny her requested days off. (/d.
{ 25; Maiter Dep, at 85-86.) Although Maiter says she typically phrased her instructions to
subordinates as polite requests, she acknowledged that a subordinate’s refusal to comply would
constitute insubordination and would subject the subordinate to possible discipline or termination.
(/d. T9126, 27; Maiter Dep., at 169-70.) Nevertheless, Maiter believes that Henderson would have
tefused to procesé the service charge reversals on Maiter’s joint account with her mother if
Henderson had felt uncomfortable or thought Maiter’s request was inappropriate. (/d. {[ 28; Maiter
Dep., at 103-06, 168-69.) Gardiner pointed out that Maiter could have asked Assistant Regional
Operations Manager Carrie Rhodes, Regional Sales Manager Greg Walsh, Regional Finance
Manager Franzen, Gardiner herself (her office was located at the Roselle Branch) to approve

the service charge teversals on Maiter's joint account with her mother. (/d. | 29; Gardiner Dep.,

at 9, 17, 22, 39-40.) Maiter did not in fact ask Gardiner or any peer or supervisor to approve the

2 Whilg Def. Ex. 10 does show a service charge reversal on October 15, 2001, Def.
Ex. 11 does not contain the General Ledger Debit slip with the authorization signatures for this
reversal (presumably because the October 15 reversal was completed “on-line”, see Def. Ex. 10,
page 4, right-most column). In her deposition, Maiter admitted requesting only two of the reversals,
but not the third - the one for which she did not see a General Ledger Debit slip in Def. Ex. 11.
(Maiter Dep., at 94,| |ines 15-20.) Because Maiter offers no basis for the court to conclude that
Gardiner did not geriuiinely believe there had been a service charge reversal on October 15, 2001,
the court concludes that any dispute concerning this matter is not material.

5


was assisted in her duties by Rhodes (female). (/d.; Gardiner Dep., at 22; Maiter Dep., at 39.)
After her termination on November 19, 2001, Maiter's duties were assumed by Rebecca Keeter
(female), who was an incumbent Branch Manager at a nearby location. (/d. {| 42; Gardiner Dep.,
at 52.) Gardiner explained that after Maiter's termination, the Roselle Branch was merged with the
branch that Keeter had been managing; Gardiner believed that Keeter was capable of managing
both branches. (Gardiner Dep., at 52-53.)

Maiter knows of no employee who engaged in the same conduct for which she was
discharged, that is, instructing a subordinate to credit the superior employee's own account. (Def.
Facts 43; Maiter Dep., at 118.) One month after Maiter’s termination, Gardiner fired Diane
Battista, another Branch Manager in the West Region reporting to Gardiner, for misappropriating
funds by using money found on the floor on the customer's side of the bank counter to buy pizza
and office decorations. (/d. | 44; Maiter Dep., at 35-36, 174; Gardiner Dep., at 66-67.) Battista
was replaced by Ben Kerchov. (Gardiner Dep., at 67-68.) Gardiner knows of no employees in the
West Region who misappropriated funds and were not discharged. (Def. Facts | 45; Gardiner
Dep., at 37.)

Maiter’s claim of gender discrimination is based on her belief that two male employees, Sam
Vardalos and Vince Demarco, engaged in similar conduct as her but were not discharged. (Id.
‘J 46; Maiter Dep., at 132-33.) Maiter asserts that Vardalos, a former Branch Manager, “changed
loan documents” but was not terminated; Maiter believes he was “just put on corrective action or
| think corrective action or immediate probation.” (/d. | 47; Maiter Dep., at 118-19.) Vardalos did
not work in the West Region and was not supervised by Gardiner. (/d. {| 48; Maiter Dep., at 120;
Gardiner Dep., at 57-59.) Gardiner has no knowledge about this incident involving Vardalos or

anything else about his performance. (/d. ] 48; Gardiner Dep., at 57-59.) Maiter’s own information

5(...continued)
however, that Maiter was discharged on November 19, 2001.

8


Minute Order Form (06197) 8?

United States District Court,

Northern District of Illinois

,
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge RebgaaR Pallmeyer than Assigned Judge
.
CASE NUMBER Y 02 C 6442 DATE 1/30/2004
CASE Michelle M. Maiter vs, Harris Bankcorp
TITLE
{la the following box (a) indicate the party fiting the motion, ©-8. plaintiff, defendant, 3d party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
a) oOo Filed motion of [ use listing in “Motion” box above]
(2) oa Brief in support of motion due
@) Oo Answer brief to motion due + Reply to answer brief due
(4) a] Ruling/Hearing on set for at
(5) oa Status hearing[held/continued to] [set for/re-set for] on set for at .
(3) Oo Pretrial conference(held/continued to} [set for/re-set for] on set for at .
(7) Oo Trial{set for/re-set for] on at :
(8) Qo [Bench/Jury trial] [Hearing] held/continued to at
9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
a FRCP4(m) 1 Local Rule 411 0 FRCP41(ay(1) O FRCP41(a)(2),
(0) =f [Other docket entry} Enter Memorandum Opinion And Order, The court grants Harris Bank’s
motion for summary judgment (Doc. No. 10-1), and enters judgment in favor of Defendant.
(1) [For further detail see order attached to the original minute order.}
No notices required, advised in open court.
No notices required.
o | Notices maited by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form. wa ng
a - i
Copy to judge/magistrate judge. ~ 7
courtroom £ a
ETV deputy’s. ~
initials
x. - < Dateltime received in
- central Clerk’s Office ailing deputy intiats

Eee


her brief in opposition to summary judgment, the court has construed materials in the record in the
light most favorable to her.
Cc. Gender Discrimination In Violation of Title Vil

Maiter claims that Harris Bank discharged her because of her gender in violation of Title Vil.
Title VIl makes it unlawful for an employer “to fail or refuse to hire or 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. § 2000e2(a)(1). A plaintiff can prove Title VII discrimination by
producing direct evidence of discrimination or by proceeding under the McDonnell Doug/as burden-
shifting method. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Contreras v.
Suncast Corp., 237 F.3d 756, 761 (7th Cir. 2001). The parties agree that since Maiter has no direct
evidence of discrimination, she must establish her case under the burden-shifting method.

Under that framework, Maiter must establish a prima facie case of discrimination by
demonstrating that (1) she belongs to a protected class, (2) she performed her job satisfactorily
and satisfied her employer's legitimate expectations, (3) she suffered an adverse employment
action, and (4) her employer treated similarly situated employees outside of her protected class
more favorably. McDonnell Douglas, 411 U.S. at 802; Contreras, 237 F.3d at 759. If Maiter
satisfies each of these elements, Harris Bank has the opportunity to present a legitimate, non-
discriminatory explanation for her discharge. See Contreras, 237 F.3d at 802-03. The Bank “need
only produce admissible evidence which would allow the trier of fact to rationally conclude that the
empioyment decision has not been motivated by discriminatory animus.” /d. at 760 (quoting Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981)). If Harris Bank successfully
satisfies this requirement, Maiter has the burden of proving that the Bank's proffered reason is a

pretext for discrimination. /d.

11


DISCUSSION

A. Standard of Review

The standards for evaluating a motion for summary judgment are familiar. Summary
judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Feb. R. Civ. P. 56(c); Hilt-
Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir. 2002). The court's function is not to weigh
the evidence but merely to determine if “there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). In making this determination, the court will construe facts
and draw inferences in the light most favorable to the nonmoving party. /d. at255. The nonmoving
party, however, may not “merely allege the existence of a factual dispute to defeat summary
judgment,” but must instead offer evidence sufficient to support a verdict in his favor. Basith v.
Cook County, 241 F.3d 919, 926 (7th Cir. 2001) (quoting McPhaul v. Board of Comm'rs of Madison
County, 226 F.3d 558, 563 (7th Cir. 2000)).
B. Failure to Comply with Local Rule 56.1

Local Rule 56.1 ("L.R. 56.1”) details this court's requirements for filing and responding to
a summary judgment motion. As noted, Maiter failed to abide by the requirements set forth in L.R.
56.1(b)(3), and submitted no response to Harris Bank’s 56.1 Statement. She failed to specifically
respond to each of Harris Bank's undisputed facts and did not offer evidence to corroborate her
position on those facts that she contradicted in her Response to Motion For Summary Judgment.
Because Maiter failed to comply with L.R. 56.1, the material facts set forth in Harris Bank's
statement of facts are deemed admitted. Adams v. Wal-Mart Stores, inc., 324 F.3d 935, 937 (7th

Cir. 2003). Nevertheless, to the extent that Maiter has challenged the Bank's version of events in

10


a print-out of an e-mail message that Maiter admits she sent to Henderson on November 7, 2001.
(id. 36; Gardiner Dep., at 47-48; Maiter Dep., at 98-99; Def. Ex. 13 to Def. Motion.)* In that e-
mail, Maiter asked Henderson to “credit [her] mom's account $12.00 for the maintenance charge”
(the November 8, 2001 fee reversal), and promised to “take [Henderson] out to Junch for doing all
of this for [her}."_ (/d.; Maiter Dep., at 98-99; Def. Ex. 13 to Def. Motion.)

On November 19, 2001, after his interview with Maiter, Jack Laurie confirmed to Gardiner
that Maiter had been “reversing service charges on her own account.” (/d. | 38; Gardiner Dep.,
at 50-51.) Gardiner determined that Maiter had not sought or received proper authorization for the
service charge reversals on her joint account with her mother. (/d. | 39; Gardiner Dep., at 36, 44;
Maiter Dep., at 116-17.) Gardiner considered Maiter's conduct to constitute misappropriation of
funds for personal gain and decided to terminate Maiter’s employment for this reason. (Id. J 39-
40; Gardiner Dep., at 36-37, 44, 62, 66.) Gardiner consulted her supervisor, West Regional
President Bell, and Hope Ferguson from Human Resources, both of whom concurred with her
decision. (/d. {| 40; Gardiner Dep, at 36-37, 44-45, 67-68; Maiter Dep., at 116-17.) Late on
November 19, 2001, Ferguson telephoned Maiter and informed her that her employment with
Harris Bank was terminated because she had directed Henderson to credit her joint account with
her mother without proper authorization. (/d. ] 41; Maiter Dep., at 115-17.)

In November 2001, before Maiter was terminated, Gardiner supervised nine Branch

Managers including Maiter: three men and six women. (/d. 17; Maiter Dep., at 35-38.)° Gardiner

‘ The record does not show when or how Bank officers found the e-mail, nor is the

court certain whether either Gardiner or Laurie interviewed Henderson before Maiter’s termination.
On its face, the e-mail (Def. Ex. 13) shows that Henderson forwarded it to Gardiner on November
20, 2001, the day after Maiter’s termination, but in her deposition Gardiner indicates that she had
the e-mail before she decided to terminate Maiter's employment on November 19, 2001. (Gardiner
Dep., at 47-48.)

8 Harris Bank's Undisputed Statement of Material Fact states, in J 7, that on
November 21, 2001 Gardiner supervised nine Branch Managers including Maiter. The court notes,
(continued...)


Another issue related to Maiter’s job responsibilities that implicated both profitability and
conflicts of interest was the reversal of service charges and fees charged to customers for
overdrafts, wire transfers, check printing, falling below minimum balances, and other services. (/d.
{{ 11; Maiter Dep., at 41, 53.) Harris Bank policy required service charge reversals to be approved
by two employees (/d. {[ 13; Maiter Dep., at 50), one of whom had to be either Maiter herself, Teller
Supervisor Therese Cygan (“Cygan"), or Senior Personal Banker Elizabeth Henderson
(‘Henderson’). (/d. If 12, 13; Maiter Dep., at 49-52.) Maiter and the other employees at her
branch received training concerning service charge reversals, but that training did not include any
specific direction concerning authorization of service charge reversals on an employee's own
account, nor was there any written policy regarding such reversals. (/d. ] 15; Gardiner Dep., at 31-
36; Certificate of Completion, Def. Ex. 6 to Def. Motion; Def. Ex. 7 to Def. Motion; Maiter Dep., at
73, 75.) Gardiner explained, however, that in her view an employee who wanted to reverse a
service charge to his or her own account needed the approval of a manager at the same or higher
level of authority as the employee. (/d. | 14; Gardiner Dep., at 39-40.) In June 2001, at a regular
monthly meeting, Gardiner instructed all West Region managers who reported to her, including
Maiter, that the region's service charge reversals were excessive and that branch managers should
work to reduce them. (/d. | 16; Maiter Dep., at 56-57; West Region Manager's Meeting Agenda,

Def. Ex. 2 to Def. Motion.)

‘ The parties agree that excessive service charge reversals were discussed at the

June meeting, and that Gardiner asked the branch managers to work to reduce them. The June
agenda (Def. Ex. 2), however, under “Open Parking Lot Issues and Action Items,” contains
handwritten notes pertaining to fee waivers and discussion about procedures for such waivers. A
note in what seems to be the same handwriting appears on the September Agenda (Def. Ex. 5),
beside the title “Service Charges” and indicates that the matter was discussed at that meeting:
“reminder about waiving charges go through correct authority levels for requesting waivers on own
accounts." Maiter claims that when she was given the June and September agendas (Def. Ex. 2
and 5), there were no handwritten notes on them. (Maiter Dep., at 175-177.) Gardiner, on the other
hand, claims that agendas were sometimes sent out with handwritten notes on them. (Gardiner
Dep., at 65.) Gardiner testified that her own copies of the agendas were maintained as a

(continued...)


Maiter argues that, viewing the facts in the light most favorable to her, the court should
conclude that Gardiner's role as Keeter’s supervisor renders her responsible for the decision
concerning Demarco. Such a conclusion would not preclude summary judgment here, however,
because Maiter has not shown that Demarco's alleged misconduct was similar to her own.
Gardiner discharged Maiter for “misappropriation of bank funds for personal gain.” Harris Bank
understands such an offense to be an extremely serious violation of Bank policy; Gardiner testified
that Harris Bank tellers are discharged for “forced balancing” for an amount of even less than one
dollar. Although Maiter believes that Demarco violated Bank policy at some point between 1998
and November 2001 by failing to require proper identification for a new account, she concedes that
she does not know whether Demarco benefitted personally from his alleged behavior and does not
even know what action Harris Bank took in response. Jn fact, there is no evidence that anyone at
Harris Bank considered either Demarco’s or Vardalos’s conduct to constitute misappropriation of
funds, nor is there any evidence that either man benefitted personally from his alleged misconduct.
See Johnson v. National R.R. Passenger Corp., 23 F. Supp. 2d 909, 913 (N.D. Ill. 1998) (plaintiff
not similarly situated to employees who had engaged in different conduct). In contrast,
approximately one month after Maiter’s termination, Gardiner learned that Branch Manager Diane
Battista had misappropriated funds by using cash found on the floor on the customer's side of the
bank counter to purchase pizza and office decorations. Gardiner, who supervised Battista,
discharged her for this misconduct.

Notably, even if Maiter were correct that Vardalos or Demarco had engaged in similar
misconduct, she has presented no admissible evidence concerning how Harris Bank addressed
the alleged incidents and in effect asks the court to assume they were treated more favorably than
she was treated. The court is not willing to do so. As explained earlier, Vardalos was not under
Gardiner's supervision and she has no knowledge regarding his alleged misconduct or any
resulting disciplinary action. In addition, though Maiter claims that Keeter told Gardiner about

14


Moreover, there is nothing in the record to suggest that Gardiner’s decision to discharge
Maiter was based on gender animus. Gardiner and Bell, both women, hired Maiter in 1998. See
Johnson v. Zema Sys. Corp., 170 F.3d 734, 744-45 (7th Cir. 1999) ("where the same person does
the hiring and firing of an individual, an inference arises that the firing did not result from an
improper discriminatory motive’). In addition, Gardiner arranged for Rebecca Keeter, a female
Branch Manager at another location, to assume Maiter's duties. See Rooks v. Girl Scouts of
Chicago, No. 95 C 206, 1995 WL 562126, at *7 (N.D. ill. Sept. 21, 1995) (there can be no
compelling inference of discrimination when the decision-maker is in the same protected category
as the plaintiff).

Maiter has not presented any evidence that Harris Bank did not honestly believe the
reasons it gave for her discharge, much less that the real reason was gender discrimination.
Absent such evidence, Harris Bank is entitled to summary judgment.

CONCLUSION

The court finds no dispute of material fact on Maiter’s claim of Title VII gender

discrimination. For the reasons stated above, the court grants Harris Bank’s motion for summary

judgment (Doc. No. 10-1), and enters judgment in favor of Defendant.

ENTER:

Dated: January 30, 2004

16


bank teller and senior personal banker for NBD/First Chicago Bank, and as a bank teller and
customer service representative for Presidential Mortgage Company. {id. § 3; Employment
Application, Def. Ex. 1 to Def. Motion.)

Following interviews with Dianne Gardiner, West Regional Operations Manager for Harris
Bank at that time, and West Regional President Maureen Bell, Maiter was hired to work as Branch
Manager of Harris’s Roselie Branch in May 1998. (/d, 9] 4, 5; Maiter Dep., at 33-34.) Gardiner
hired Maiter and was her direct supervisor throughout Maiter’s employment. (/d. 6; Maiter Dep.,
at 34-35; Gardiner Dep., at 23-24.)

In her capacity as Branch Manager, Maiter was an officer of the Bank. (/d. {4; Maiter Dep.,
at 42-43.) She was responsible for the Roselle Branch’s profitability, supervision of the employees
at the Branch, and achievement of customer service objectives. (/d. {{ 8; Maiter Dep. 39-42; Job
Description, Def. Ex. 14 to Def. Motion.) She was also expected to ensure that all branch
employees, herself included, adhered to the ethical and regulatory standards of the banking
industry, and to Harris Bank’s policy regarding conflicts of interest. (/d. {| 9; Maiter Dep. 43-47; Def.
Ex. 14 to Def. Motion.) Maiter understood that under the Bank’s conflicts of interest policy, an
employee was not to perform transactions on his or her own behalf or on behalf of immediate family
members. (Maiter Dep., at 46-47.) Maiter notes that this policy was not in writing and that
employees were not formally trained on it. (/d.)

One issue related to Maiter’s job responsibilities that implicated adherence to ethicat
standards was Harris Bank's teller guidelines regarding “forced balancing.” (Def. Facts {j 10;
Gardiner Dep., at 48.) Forced balancing is Harris Bank's term for misstatement by a teller of the
amount of money in the tellers cash drawer. (/d.; Gardiner Dep., at 48-49.) Harris Bank's tellers
were terminated for forced balancing for amounts of even less than a dollar. (/d.; Gardiner Dep.,
at 48.) Maiter was responsible for holding the tellers at her branch to this high level of ethical
behavior, and Gardiner admits that Maiter did so quite well. (/d.; Gardiner Dep., at 49.)

2


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MICHELLE M. MAITER,
Plaintiff,
v. No. 02 C 6442

HARRIS BANKCORP, INC., a

Judge Rebecca R. Palimeyer
Delaware corporation, 5

wwe ee ES

Defendant.

IEMORAND! PINION AND ORDER
Plaintiff Michelle Maiter (“Maiter’) filed suit against her former employer, Defendant Harris
Bankcorp, Inc. (“Harris Bank’). In her complaint, Maiter alleges that Harris Bank terminated her
employment on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e), ef seq. (“Title VII”). Harris Bank moves for summary judgment, arguing that
Maiter cannot establish that (1) similarly situated male employees were treated more favorably, or

(2) the proffered reason for Maiter’s termination was pretextual. For the reasons set forth below,

the court grants Harris Bank's motion. Up,
FAGTUAL BACKGROUND 49 lp
22, 7,

Harris Bank has submitted a Local Rule 56.1 Statement setting forth the material facts as Uy
to which it contends there is no genuine dispute. (Defendant's Statement of Undisputed Material
Facts, hereinafter “Def. Facts.") Maiter has failed to respond to the Bank's statement of facts or
to submit her own statement of facts as required by the local rules. Thus, the facts set forth by
Harris Bank are deemed admitted.
Maiter is a high school graduate and has some college and professional education. (Def.
Facts ff 2; Def. Ex. 1 to Defendant's Motion for Summary Judgment (hereinafter “Def. Motion”).

Prior to working for Harris Bank, Maiter held a number of banking positions with other financial

institutions, including working as an officer and customer service representative for Citibank, as a

/7


The parties agree that Maiter can establish the first three prongs of the McDonnell Douglas
framework: She belongs to a protected class (female), she satisfied Harris Bank's legitimate job
expectations in the sense that she has the experience and qualifications for the position, and she
was discharged. Harris Bank argues, however, that Maiter cannot establish the fourth prong of her
prima facie case because she cannot show that Harris Bank treated similarly situated employees
outside of her protected class more favorably. Even if she could do so, Harris Bank argues, it
nevertheless is entitled to summary judgment because on this record, no jury could reasonably
conclude that the Bank’s stated reason for her discharge was a pretext for gender discrimination.
Maiter argues that two similarly situated males, Sam Vardalos and Vince Demarco, were treated
more favorably than she was treated. She urges, further, that the Bank’s stated reason for
discharging her— misappropriation of funds for personal gain - was pretextual because she did not
violate any Bank policy regarding the reversing of fees and charges to her own account.

1. Simitarly Situated Employees

A plaintiff may demonstrate that another employee is similarly situated to her by “showing
that there is someone who is directly comparable to her in all material respects.” Peele v. Country
Mutual Insurance Co., 288 F.3d 319, 330 (7th Cir. 2002). See also Radue v. Kimberly-Clark Cor.,
219 F.3d 612, 617-18 (7th Cir. 2000). In determining whether employees are similarly situated, “a
court must look at all relevant factors, the number of which depends on the context of the case.”
Radue, 219 F.3d at 617. Furthermore, ‘in disciplinary cases — in which a plaintiff claims that [she]
was disciplined by [her] employer more harshly than a similarly situated employee based on some
prohibited reason —a plaintiff must show that [she] is similarly situated with respect to performance,
qualifications, and conduct.” /d. Ordinarily, the Radue court explained, this requires the plaintiff
to demonstrate that she and the employees to which she compares herself “dealt with the same

supervisor, were subject to the same standards, and had engaged in similar conduct without such

12


Demarco’s misconduct, Maiter has no personal knowledge of that fact. Nor is she aware of how
Harris Bank responded to Demarco’s infraction. Summary judgment is proper where, as here, a
plaintiff “has presented only her own uncorroborated, conclusory statements that similarly situated
co-workers were treated differently.” Oest v. illinois Dept. Of Corrections, 240 F.3d 605, 614 (7th
Cir. 2001). See also Adams, 324 F.3d at 940. As Harris Bank points out, if investigatory or
disciplinary records about the Vardalos and Demarco incidents existed, Maiter was entitied to
obtain them through discovery. Her failure to offer such material, on an issue as to which she
bears the burden of proof, means that she has not raised a genuine issue of fact as to whether
similarly situated male employees were treated more favorably.

2. Pretext

Having determined that no reasonable trier of fact could find that Harris Bank treated
similarly situated male employees more favorably than Maiter, the court need not address whether
the Bank’s asserted reason for her discharge was a pretext for unlawful discrimination. See Peele,
288 F.3d at 326 (“[a} plaintiff does not reach the pretext stage . . . unless she first establishes a
prima facie case of discrimination’). The court notes, however, that summary judgment is proper
on this basis as well.

Maiter was discharged for violating Bank policy by directing Henderson, a subordinate, to
reverse service charges on her personal account. Gardiner considered such conduct by a Bank
officer to be misappropriation of funds for personal gain. During an investigation into this
misconduct, Maiter told Jack Laurie from Corporate Security that her mother had asked Henderson
to reverse the service charges. The evidence shows, however, that Maiter called Henderson after
that meeting and asked Henderson to lie for her. Maiter baldly denies that she did anything wrong,
but that is wholly insufficient to demonstrate that Harris Bank’s explanation for her discharge is a
pretext for unlawful discrimination. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.

2001) (conclusory, unsupported denials are not sufficient to raise genuine issues of fact for trial).

15