which an employer is forbidden to base a difference in treatment received systematically better
treatment;” (3) evidence that “the plaintiff was qualified for the job in question but passed over in
favor of ... a person not having the forbidden characteristic and that the employer’s stated reason
for the difference in treatment is unworthy of belief, a mere pretext for discrimination.” Troupe,
20 F.3d at 736. That circumstantial evidence, however, “must point directly to a discriminatory
reason for the employer's action.” Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.
2003). Otherwise, plaintiffs must proceed by way of the indirect method.

A. Direct Method of Proof

Plaintiffs contend that the record evidence contains circumstantial evidence of intentional
race discrimination sufficient to survive summary judgment under the direct method of proof.
Plaintiffs circumstantial evidence consists of the following allegations: (1) Tate required
Plaintiffs to carry a larger work load than the Caucasian employees; (2) Tate assigned a
temporary employee to assist Thompson and refused to allow the temporary employee to assist
Bell; (3) Tate yelled at and demeaned African-American employees, but was cordial, polite and
friendly with the Caucasian employees; (4) Tate approved Sobodas’ vacation request but denied
Posley’s request during the same time period; (5) Tate maintained a racially segregated seating
arrangement in the Reconciliation Department and when Plaintiffs asked Tate why, Tate told
Plaintiffs that the Caucasian employees would not like sitting with them because of the kind of
music Plaintiffs listened to; (6) Tate reported the absenteeism of an African-American employee
to the human resources department but took no action in response to a Caucasian employee’s
absences; (7) Tate gave Plaintiffs undeserved, negative performance evaluations, (8) Tate gave

Sobodas and Thompson undeserved, positive performance evaluations; (9) Tate revised the

20


plaintiffs in Laughlin, O'Day, and Watkins, Plaintiffs here committed a breach of LaSalle’s trust
by rummaging through LaSalle’s trash can and copying documents that were personal if not
confidential in nature and then providing those documents to their attorneys. As the court stated
in Watkins, if such activity were protected, “plaintiffs everywhere would be entitled, under the
umbrella of protected activity, to steal company information and, so long as they give the
information to their lawyer, not only be able to avoid disciplinary action by their employer, but
also be empowered to successfully maintain a claim against their employer if adverse action is
taken for the misconduct.” Watson, 2005 WL 3448036, *7. The court is not persuaded that the
Seventh Circuit would countenance such a result. Accordingly, Plaintiffs’ unauthorized copying
and dissemination of LaSalle documents was not protected activity, and therefore, Bell and
Posley have failed to establish a prima facie case of retaliation.

Ficlds-Feagins’ allegation that LaSalle retaliated against her by designating her ineligible
for rehire is contradicted by Plaintiffs’ responses to LaSalle’s statement of material facts.
Plaintiffs admit that following Field-Feagins’ resignation a human resources employee who filled
out Fields-Feagins “Personnel Action Form” mistakenly designated her as ineligible for rehire
DAF at 4 89. Plaintiffs further admit that once the mistake was brought to his attention, the
“Personnel Action Form” was revised designating Fields-Feagins eligible for rehire effective the

date of her resignation.’ /d.

‘OFields-Feagins appears to put forth other claims of retaliation in Plaintiffs’ response memorandum. But
Fields-Feagins admitted in Plaintiffs’ responses to LaSalle’s statement of material facts that the eligibility for rehire
claim was her only allegation of retaliation. See Pls.’ Resp. to Defs.’ L.R. 56.1 Statement of Material Facts 4] 89.
Since those admissions were made following the close of discovery, the court declines to consider any new claims of
retaliation raised for the first time in Plaintiffs" response brief. See Koszolu v. Bd. of Educ. of the City of Chicago,
385 F.3d 1104, 1109 (7" Cir. 2004) (courts will not consider factual claims that contradict a party’s Rule 56.1
Statement).

Al


insufficient to defeat summary judgment because negative performance evaluations are by
themselves not adverse employment actions. See Oest v. Ill. Dept. of Corrections, 240 F.3d 605,
613 (7" Cir. 2001). Accordingly, Plaintiffs have failed to establish a prima facie case of
retaliation.

B. Charge of Discrimination with the EEOC

Plaintiffs next allege that LaSalle retaliated against them for filing charges of
discrimination with the EEOC by (1) failing to adequately investigate their complaints of
discrimination; (2) disciplining Fields-Feagins for a “group disturbance;” and (3) issuing Posley a
“final written warning.” Plaintiffs’ claims regarding LaSalle’s investigation and Fields-Feagins’
reprimand again fail because neither of these actions constitute adverse employment actions. See
Oest, 240 F.3d, at 613. The “final written warning” issued to Posley, however, is an adverse
employment action because it materially altered the terms of Posley’s employment by
disqualifying her for salary increases and promotions, and by bringing her to the final stage of
LaSalle’s progressive discipline program. Posley’s claim nevertheless fails because she cannot
rebut LaSalle’s legitimate, non-discriminatory reason for its action.

Vander Lugt testified that Posley was given a “final written warning” because she failed
to complete an assigned reconciliation project and then failed to inform her supervisor that the
work had not been done. Posley contends that LaSalle’s explanation is pretextual, arguing first
that LaSalle’s explanation has no basis in fact. Posley’s argument, however, is not supported by
the record. It is undisputed that Posley was assigned the account sometime in mid-September,
failed to perform the reconciliations for several weeks, and then delayed informing Halter that

the work had not been done until early October. These undisputed facts are the precise basis on

37


dealer, where she gained relevant securities industry reconciliation experience. /d. at 42.
Based on that experience, Kendrick and Tate considered hiring Sobodas as a Senior Analyst, but
ultimately decided to hire her as an Analyst | so that “[they] would be able to offer her a
promotion as an enticement to stay with [LaSalle] longer.” Id. at § 42. At LaSalle, Sobodas took
over some of the most difficult reconciliation accounts. Jd, at ]43. During her first ten months
of employment, Sobodas streamlined processes and resolved a complex account with little
supervisory guidance. /d. Kendrick believed that Sobodas’ internal clients highly respected her
work, 7d.

D. Events Giving Rise to Plaintiffs’ Claims

In the Fall of 2001, as rumors began to circulate through the department that Sobodas was
about to be promoted, Plaintiffs became increasingly dissatisfied with Tate’s supervision of the
Reconciliation Department. Plaintiffs believed that Tate gave Thompson and Sobodas
preferential treatment regarding seating assignments, access to temporary employee assistance,
workloads, and vacation requests. PSF §{ 37, 38, 39,40, 41. In addition, Plaintiffs believed that
impermissible considerations of race influenced Tate’s decisions to report an African-American
employee’s absences to the human resources department, and not to report Thompson when she
missed three days in a two-week period in August and September 2001. Id. at 4152.

Plaintiffs voiced their concerns in a November 2001 meeting with Tate after he confirmed
Sobodas’ impending promotion and showed them a revised job description for the Senior
Analyst position that they believed was personalized to fit Sobodas’ qualifications. /d. at {| 83-
85. At that meeting and at others, Plaintiffs asked Tate why they were not also being promoted

to Senior Analyst. Jd. Tate advised Posley that she was not being promoted because, among

14


segregating African-American employees from Caucasian employees would create a more
harmonious workplace. As such, there is no evidence linking Tate’s alleged maintenance of a
segregated seating arrangement to the contested employment decision. See Gorence v. Eage
Food Ctrs., Inc., 242 F.3d 759, 762 (7" Cir. 2001) (stating that “there must be a real link between
the bigotry and an adverse employment action.”).

Plaintiffs further argue that Tate’s hostility to African-Americans is evidenced by the fact
that Tate reported an African-American employee’s absenteeism to the human resources
department, while he took no action when Thompson was absent. The evidence cited by
Plaintiffs, however, does not support the assertion that Tate took “no action” with regard to
Thompson’s absences. In fact, since Plaintiffs failed to specifically question any LaSalle
employee on the issue of whether Thompson was disciplined in 2001 for absenteeism, the record
is silent on the issue. But even if Tate treated Thompson differently, Plaintiffs still cannot
demonstrate that he gave her preferential treatment because Plaintiffs failed to put forth facts that
would allow the court to determine whether Thompson’s and the African-American employee’s
conduct were so similar as to presumptively warrant similar treatment. Contrary to Plaintiffs’
suggestion, LaSalle policy does not require a supervisor to report an employee’s absences to the
human resources department anytime an employee misses three or more days within a three-
month period. Instead, LaSalle policy requires only that a supervisor have a discussion with the
employee regarding their absences. Thus, LaSalle policy endows its supervisors with the
discretion to assess whether an employee’s absences merit discipline. In this case, there is no
evidence that Tate exercised that discretion in a discriminatory fashion.

Bell’s 2001 performance review likewise does not establish Tate’s alleged racial hostility.

24


ORDER
For the reasons stated above, Plaintiffs’ motion to strike [#102] is granted in part and
denied in part. Plaintiffs’ motion for partial summary judgment (#72) is denied. LaSalle’s
motions to strike [#95, 96] are granted in part and denied in part. LaSalle’s motion for summary

judgment (#70) is granted.

Dated: March 28, 2006 Enter: oad i pi—
UV JOAN HUMPHREY LEFKOW
United States District Judge

42


they are offered to prove the asserted facts in an effort to establish that Plaintiffs’ supervisors
were hostile to Plaintiffs after Plaintiffs had filed charges of discrimination with the EEOC.
Accordingly, paragraphs 86, 277, 314, and 315 are stricken.

Paragraph 118, on the other hand, is not hearsay because it is offered not for the truth of
the matter asserted but for the purpose of establishing notice, i.e., that Posley informed her
supervisor that she disagreed with his promotion decision. See United States v. Robinzine, 80
F.3d 245, 252 (7" Cir. 1996) (statements containing no assertion of fact that could be verified
were not hearsay because their significance “was that they were said (i.e. that a ‘verbal act’
occurred) and how they affected [the listener}, not the truth-value of what was said.”) (emphasis
in original). LaSalle’s motion to strike paragraph 118 is therefore denied.

Turning to paragraph 136, it is relevant and admissible that at approximately the same
time Plaintiffs were denied the promotion, Plaintiffs’ supervisor revised the job description for
that position. Paragraph 136, however, goes well beyond this straightforward assertion by
positing as fact Bell’s speculation about her supervisor’s motivation for revising the job
description. Plaintiffs’ subjective belief, speculation and conjecture cannot create a genuine
issue of material fact. McMillian v. Svetanoff, 878 F.2d 186, 190 (7" Cir. 1989). Accordingly,
paragraph 136 is stricken as to Bell’s belief and speculation.

Paragraphs 220, 222, and 223 each allege that LaSalle employees regularly removed bank
documents from the bank and that LaSalle did not maintain a policy prohibiting such conduct. In
some instances, these assertions are based on mischaracterizations or exaggerations of the cited
testimony. In those instances, the assertions are based on nothing more than Plaintiffs’

speculation. Indeed, although Plaintiffs repeatedly allege that LaSalle employees took bank

5


professionalism” and “willingness to take on new responsibilities” reflects that Kendrick did not
believe that Bell satisfied a number of the written requirements for the Senior Analyst position,
including, but not limited to, that she “be able to step into a leadership role ....”

Finally, Bell argues that LaSalle’s explanation for its promotion decision is incredible
because LaSalle never informed her of complaints made by her internal clients. Plaintiffs point
to no policy, however, requiring LaSalle to communicate performance problems before denying
an employee a promotion. And Plaintiffs present no legal authority standing for the proposition
that an employee must notify an employee of performance deficiencies before taking an adverse
employment action. lf anything, Seventh Circuit case law indicates an unwillingness to impose a
notice requirement on employers. See Rand v. CF Indus., Inc., 42 F.3d 1139, 1145 (7° Cir.
1994) (finding no evidence of pretext in the fact that an employer failed to document or
communicate plaintiff's performance problems before terminating his employment).
Accordingly, Plaintiffs fail to show that LaSalle lied about the reasons for its promotion
decisions.’

4, Fields-Feagins - Failure to promote at the time of Sobodas’ promotion

LaSalle maintains that Fields-Feagins was not promoted at the time Sobodas became a
Senior Analyst because her supervisors “considered her a mediocre performer who did just
enough to get by and was not qualified for promotion to Senior Analyst.” Defs. Reply Memo. at

8.

7 Bell also argues that she satisfied Kendrick’s stated requirements for promotion to Senior Analyst; namely,
that Plaintiffs had to be able to “cover” their own desk, as well as the desk of another analyst. Plaintiffs fail to cite to
a statement of material fact supporting the assertion that Kendrick verbally revised or summarized the written
requirements for the Senior Analyst position. Accordingly, the court disregards this argument.

35


written requirements for the Senior Analyst position to conform to Sobodas” qualifications; (10)
Grubbs and Delany proffered inconsistent explanations for Sobodas’ promotion; and (11)
Kendrick resented that she was not permitted to terminate Tate because of LaSalle’s affirmative
action goals.

Plaintiffs’ circumstantial evidence of discrimination does not present a genuine issue of
material fact that they were denied promotions in the Fall of 2000 because of their race. The
majority of Plaintiffs’ evidence of discrimination concerns hostility towards Plaintiffs by Tate.
While the fact that Tate is also African-American does not automatically preclude an inference
that he was motivated by a discriminatory animus, it does militate against it. See Parker v.
Rockford Park Dist., 2001 WL 114405*4 (N.D. Ill. Feb. 2, 2001) (African-American plaintiff's
supervisor’s statement that “This looks bad. | ought to fire your black ass ...” did not support an
inference of discrimination where the supervisor and the plaintiff's ultimate replacement were
both African-American); Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 349 n. 4 (7" Cir. 1997)
(fact that plaintiff's supervisor was African-American cut against African-American plaintiff's
discrimination claim); Rush v. McDonald's Corp., 966 F.2d 1104, 1118 n. 50 (7" Cir. 1992) (fact
that plaintiff's replacement was also African-American suggested that employer’s stated reason
for the plaintiff's termination was not pretextual).

But the bigger problem with Plaintiffs’ “mosaic” is that there is no basis to infer
discrimination from their allegations. Plaintiffs repeatedly attempt to stretch already vague,
speculative, and conclusional testimony to create an inference of intentional discrimination.
Plaintiffs failed to meet their burden, however, because they did not cite to specific facts based

on their own personal knowledge or the testimony of others to support their allegations. Adams

21


treatment to any decision-maker responsible for the employment decisions at issue. Adams, 324
F.3d at 939.

Plaintiffs next argue that LaSalle’s contradictory explanations for Sobodas’ promotion
demonstrates that LaSalle preferred Caucasian employees. Plaintiffs’ argument fails, however,
because there is no evidence to support their claim that LaSalle has proffered shifting
explanations for its decisions. With respect to Sobodas, Plaintiffs’ contention that the
explanations proffered by Grubbs and Delany are inconsistent is based on an unduly narrow
reading of their deposition testimony. Both Grubbs and Delany testified that Kendrick was the
primary decision-maker regarding Sobodas’ promotion and that they each learned separately
from her why Sobodas deserved to be promoted to Senior Analyst. The fact that Grubbs recalled
Kendrick’s emphasizing Sobodas’ experience while Delany thought Sobodas’ promotion was
based on her performance in the Reconciliation Department is immaterial in light of Kendrick’s
testimony that Sobodas was promoted for both reasons. No inference of discrimination can be
drawn from incomplete explanations proffered by employees who were not responsible for the
promotion decision.

Finally, Plaintiffs assert that Kendrick was also hostile to African-Americans. Plaintiffs’
argument is based solely on the fact that Kendrick allegedly “resented” that she was not
permitted to terminate Tate’s employment because of LaSalle’s pursuit of affirmative action
goals. The mere fact that Kendrick disagreed with her supervisor’s decision to retain an
employee whom Kendrick believed had serious and uncorrectable performance deficiencies is
not evidence of racial bias. When considered in light of the fact that Kendrick hired Tate and,

after receiving her supervisor’s instructions, dutifully worked to develop him, there is no basis to

27


testimony regarding what Sobodas told her about Tate’s alleged approval of her vacation request
is inadmissible hearsay and thus, cannot be relied on to support an inference of intentional
discrimination. See Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7" Cir. 1995) (racial motives
cannot be established by hearsay evidence). Moreover, Posley could not recall any of the
relevant circumstances surrounding the two vacation requests, including how much vacation she
requested, for what time period, and how far in advance she submitted the request. As a
consequence, even if the court accepted that Sobodas’ vacation request was approved, there is no
basis to conclude that the disparate treatment was the result of racial bias and not simply
disparate circumstances.

Plaintiffs’ allegation that Tate maintained a segregated seating arrangement is
contradicted by the testimony of Sobodas, Thompson and Kendrick, all of whom testified that the
employees in the Reconciliation Department were permitted to select their own seats.
Furthermore, Plaintiffs’ assertion that Tate told Plaintiffs that the seating arrangement was
required because “Sobodas might be disturbed by the Plaintiff's [sic] ‘own’ black music” is
unsupported by their deposition testimony. Plaintiffs testified only that “[Tate] kind of implied
that [Sobodas] had - because she had - for whatever reasons she had one taste in things and we
would have a different taste, stuff like that. I mean nothing — that one would point a finger at and
- you know he didn’t say anything, you know. At least I can’t remember him saying anything
outside from that comment.” Even if an inference could be drawn from Plaintiffs’ testimony that
Tate intentionally maintained a segregated workplace environment, there is no basis to conclude
from Tate’s implied comment that he had a discriminatory animus against A frican-Americans.

In fact, at most, Plaintiffs’ testimony suggests that Tate believed, however inappropriately, that

23


Plaintiffs attempt to show pretext by arguing that “when [Fields-]Feagins asked Tate why
she had not been promoted, Tate provided no answer at all.” Plfs. Memo. at 11. But no negative
inference can be drawn from Tate’s silence because Tate did not ultimately make the promotion
decision. If Fields-Feagins desired an explanation for LaSalle’s decision, she should have gone
to the decision-maker, Kendrick. Even if Tate had been the decision-maker, however, Plaintiffs
again fail to cite a LaSalle policy or Seventh Circuit authority for the proposition that an
inference of pretext may be drawn by an employer’s failure to communicate the reasons for its
adverse employment action when questioned by the affected employee.

Vv. Retaliation

Plaintiffs allege that LaSalle retaliated against them for filing (1) internal complaints of
discrimination; (2) charges of discrimination with the EEOC; and (3) the present lawsuit.

Under Title VIL, it is unlawful for an employer to retaliate against an employee for
engaging in statutorily-protected activity. 42 U.S.C. §§2000e-2(a)(1). Because Plaintiffs fail to
produce direct evidence of retaliation, they must again proceed under the McDonnell Douglas
burden-shifting framework. To establish a prima facie case of retaliation, plaintiffs must show
that (1) they engaged in protected activity, (2) they were performing their jobs to LaSalle’s
satisfaction; (3) they suffered an adverse employment action; and (4) LaSalle treated similarly
situated employees who did not engage in statutorily protected activity more favorably. Beamon
y. Marshall & Ilsley Trust Co., 411 F.3d 854, 861-62 (7° Cir. 2005).

A Internal Complaints of Discrimination

Plaintiffs allege that Tate retaliated against them for filing internal complaints of

discrimination by criticizing their job performance both orally and in writing. This allegation is


H. Plaintiffs’ Separation from LaSalle

On August 25, 2003, Fields-Feagins voluntarily resigned from her employment at
LaSalle. DAF at §| 87. When Fields-Feagins resigned, a LaSalle human resources employee
mistakenly designated Fields-Feagins as ineligible for rehire. /d. at { 88. After the mistake was
brought to the employee’s attention, Fields-Feagins’ “Personnel Action Form” was revised and
she was designated eligible for rehire effective the date of her resignation. Id. at { 89.

During Plaintiffs’ depositions in the present matter, Plaintiffs admitted that they had
copied LaSalle documents, removed them from the bank, and provided them to their attorney in
an effort to substantiate their allegations. DAF at {{ 91-96. In February 2004, shortly after the
completion of Plaintiffs’ depositions, Plaintiffs’ document appropriation was brought to the
attention of Randall Hampton, an African-American male who was employed as Executive Vice-
President of Global Trust Services.’ Id. at 99. After reviewing Plaintiffs’ deposition testimony,
as well as the documents appropriated by Plaintiffs, Hampton terminated Posley and Bell for
violation of a LaSalle policy that prohibited employees from removing internal bank documents
from the premises. /d. Based on Hampton’s decision, Bell and Posley were terminated on
February 19, 2004. /d. at 4 104,

IV. Race Discrimination Claim
Title VII makes it an unlawful employment practice for an employer “to fail or refuse to

hire or to discharge any individual, or otherwise to discriminate against any individual with

ee

*plaintitf’s contend that LaSalle first learned that Plaintiffs removed documents from the bank during a
March 7, 2002 meeting between Plaintiffs and Grubbs. The cited deposition testimony, however, does not support
their contention. Grubbs testified that Plaintiffs informed him that they had found documents on the office copier,
not that they had copied the documents and provided them to their attorney. Accordingly, the court finds that
LaSalle first learned of Plaintiffs’ copying and dissemination of bank documents following Plaintiffs’ depositions.

18


II...” Fields-Feagins actually testified that she believed Halter’s assessment of her performance
was not accurately reflected in her 2002 performance review because he was required to account
for Tate’s negative assessment of her performance during the first part of 2002.

Finally, LaSalle’s assertion in paragraph 82 that “Halter identi fied many of the same
issues raised by her previous managers. . .” is impermissible argument and therefore, is stricken.

3. Contradiction in responses

Plaintiffs’ responses to paragraphs 36, 60, and 69 directly contradict admissions made by
Plaintiffs in their responses to other paragraphs and in their Motion for Partial Summary
Judgment. Plaintiffs have not attempted to provide an explanation for the discrepancy despite
having the opportunity to do so. Accordingly, Plaintiffs’ responses to paragraphs 36, 60, and 69
are stricken. See Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1108-1 109 (7"
Cir, 2004) (affirming district court’s decision to strike plaintiffs response to defendant’s
statement of fact because it “inherently contradicted facts in the [defendant’s] statement that
[plaintiff] had admitted.”).

Cc. Plaintiffs’ Motion to Strike Certain Responses to Plaintiffs’ Local Rule 56.1
Statement of Material Facts

Plaintiffs’ move to strike LaSalle’s responses to paragraphs 10, | 1, 16, 17, 20, 21, 23, 45,
46, 47, 48, 50, 51, 56, 59, 62, 63, 66, 67, and 81 of their statement of material facts, arguing that
LaSalle’s responses include new facts or additional information in an attempt to deny some of
Plaintiffs’ statements that are not actually in dispute.

LaSalle’s responses to paragraphs 46, 48, 51, and 66 are indeed improper. LaSalle admits

these statements but then improperly includes additional and unnecessary facts. As a result, the


promotion. LaSalle maintains that Sobodas was promoted because she “had extensive job related
experience prior to coming to the Bank and proved, within the first ten months of her
employment, that she could perform the most sophisticated work in the Department.” Defs.
Reply Memo. at 9. This explanation is substantially consistent with the testimony provided by
Kendrick, Grubbs and Delany. Plaintiffs attempt to seize upon the fact that Kendrick
emphasized Sobodas’ prior experience in her conversations with Grubbs regarding Sobodas’
qualifications for promotion, while she focused on Sobodas’ on-the-job performance in her
discussions with Delany. But in each instance Kendrick’s recommendation was based on her
belief that Sobodas had a sophisticated understanding of reconciliation work.

3. Bell - Failure to promote at the time of Sobodas’ promotion

LaSalle maintains that Bell was not promoted at the time Sobodas became a Senior
Analyst because Kendrick believed that “while Bell possessed many positive attributes, her work
in the Reconciliation Department, which included complaints from one of her main internal
clients about Bell’s ‘lack of professionalism’ and Bell’s unwillingness to take on new
responsibilities, indicated [ ] that Bell was not ready for promotion.” LaSalle’s Reply Memo. at
6.

Plaintiffs first argue that LaSalle’s explanation for its promotion decision is inconsistent
with the explanation Tate gave Bell in 2001. Bell testified that Tate told her that she was not
being promoted because “she had failed to make Kendrick sufficiently aware of her
accomplishments.” The obvious implication of Tate’s comment is that Kendrick did not believe
that Bell’s experience and performance merited promotion at that time. Thus, Tate’s comment

is not inconsistent with LaSalle’s explanation. Furthermore, as LaSalle points out, Bell concedes

33


its organization to fill non-entry level positions.

In this case, Kendrick testified that she believed that Thompson already possessed the
qualifications of a Senior Analyst when she transferred into the unit.’ Plaintiffs, on the other
hand, do not allege that they should have been hired as Senior Analyst, and thus, they
acknowledge that they could only become qualified for the position by working in the unit. As
such, LaSalle appropriately considered Posley’s relatively brief tenure when assessing whether
she was qualified for promotion.

Plaintiffs also argue that Posley’s alleged inability to take on complex analytical work
could not have been a motivating factor in LaSalle’s promotion decision because Kendrick
acknowledged that Thompson had not demonstrated to her the ability to handle complex
assignments before she was brought into the department as a Senior Analyst. Plaintiffs’
argument again confuses disparate treatment with disparate circumstances. Posley was a
relatively new Reconciliation Department employee whose prior lower-level position at LaSalle
was “vastly different”and did not involve reconciling out-of-balance accounts. As such,
Kendrick could only reliably evaluate Posley’s analytical ability based on her personal

observation of Posley’s work. Thompson, in contrast, was a LaSalle officer seeking a transfer

‘Plaintiffs point out that Thompson's performance both before and after her transfer into the Reconciliation
Department casts doubt on whether she should have been brought into the unit as a Senior Analyst. But this
evidence merely calls into question Kendrick’s judgment, which is irrelevant to a pretext determination. See Stewart
y. Henderson, 207 F.3d 374, 378 (7" Cir. 2000) (“The focus of a pretext inquiry is whether the employer's stated
reason was honest, not whether it was accurate, wise, or well considered.”) (citation omitted). Plaintiffs present no
evidence to suggest that Kendrick was aware of the criticisms raised in Thompson's 2001 performance review
Indeed, Kendrick’s uncontradicted testimony shows that she hired Thompson into the unit based on her direct
observation of Thompson’s work in another department at LaSalle, Thompson’s service as an accountant in the
accounting department, Thompson's knowledge of the same products that were processed in the Reconciliation
Department, and her belief that Thompson was a degreed accountant. There was nothing unreasonable about
Kendrick’s failure to conduct a more thorough investigation of Thompson’s job performance and qualifications
because Thompson was a long-tenured LaSalle managerial officer transferring to a lower level position Accordingly,
Plaintiffs fail to demonstrate that Kendrick’s proffered reasons for her decisions were pretextual.

30


FRE 408 provides that “[e]vidence of conduct or statements made in compromise
negotiations is [ ] not admissible.” In addition, Title VII specifically protects the confidentiality
of the conciliation process. See 42 U.S.C. § 2000e-5(b) (“Nothing said or done during and as a
part of such informal endeavors may be made public by the Commission, its officers or
employees, or used as evidence in a subsequent proceeding without the written consent of the
persons concerned.”).

Paragraph 245 involves the statements made and the position taken by LaSalle with
regard to the potential settlement of Plaintiffs’ charges of discrimination during the EEOC
conciliation process, As such, this statement is stricken.

A. LaSalle’s Motion to Strike Certain Responses in Plaintiffs’ Response to
LaSalle’s Local Rule 56.1 Statement of Material Facts

1. Reliance on Hearsay

Plaintiffs object to paragraphs 37, 38, 42, 43, 44, 47, 48, 49, 50, 64, 65, 71, 73, 75, and 78
of LaSalle’s statement of material facts, arguing that the paragraphs are based on inadmissible
hearsay. The statements objected to by Plaintiffs are not hearsay because they are evidence of the

state-of-mind of the LaSalle employees who made the contested employment decisions. See
Simms v. Blue Cross Blue Shield Assoc., 2003 WL 1877639 (N.D. fll. Apr. 14, 2003) (‘in an.
employment discrimination case, statements...which relate to the employer’s perception of the
employee’s job performance are not hearsay when they are offered to rebut the Plaintiff's
allegation of discriminatory motive.”). Contrary to Plaintiffs” misguided argument, there are
multiple employment decisions made by multiple LaSalle employees at issue in this case.

Indeed, Plaintiffs vigorously maintain that the promotions of Jill Thompson and Rebecca
Sobodas are evidence of LaSalle’s discrimination. And it is undisputed that Jean Kendrick made,

7


documents home with them, Plaintiffs fail to identify a single instance in which they actually
observed a LaSalle employee take a bank document out of the bank. As such, these statements
are stricken.

4. Lack of foundation

LaSalle moves to strike paragraph 207, which relates to a “To Do” list prepared by
Plaintiffs’ supervisor, on the grounds that the Plaintiffs have not authenticated the supporting
documents..

Rule 901 (a) of the FRE provides, “The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” A document may be authenticated by a
witness with knowledge who testifies that the material is what its proponent purports it to be.

Randall Hampton, the LaSalle employee who made the decision to terminate Plaintiffs’
employment, testified that he had reviewed the bank documents that Plaintiffs had provided to
their attorneys, including at least one of the “task lists” allegedly prepared by Plaintiffs’
supervisor, and determined that the documents were “legitimate bank documents that should not
have been removed from the bank.” Defendant’s Local Rule 56.1 Statement of Material Facts
(“DSE”) | 99. This testimony is sufficient to authenticate the “To Do” lists and therefore,
LaSalle’s motion to strike paragraph 207 is denied.

5. Reliance on testimony regarding settlement negotiations

Finally, LaSalle moves to strike paragraph 245, arguing that the statement is based on
inadmissible testimony regarding LaSalle’s participation in the EEOC settlement/conciliation

process. The court agrees.


respect to his compensation, terms, conditions or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Plaintiffs may establish a claim of race discrimination under Title VII through either the
direct or the indirect, burden-shifting method established by the Supreme Court in McDonnell
Dougals Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).> “The direct
method of proof permits { ] plaintiffs to show, by way of direct or circumstantial evidence, that
[their] employer's decision to take an adverse job action against [them] was motivated by an
impermissible purpose, such as [race.]” Rhodes v. Ill. Dept. of Transp., 359 F.3d 498, 504 (7th
Cir. 2004) (citing Cianci v. Pettibone Corp., 152 F.3d 723, 727 (7th Cir. 1998)). Direct evidence
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. Rogers v. City of Chicago, 320 F.3d
748, 753 (7th Cir. 2003); Plair v. EJ. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). In
short, “[d]irect evidence ‘essentially requires an admission by the decision-maker that his actions
were based upon the prohibited animus.” Rogers, 320 F.3d at 753 (citation omitted). Plaintiffs
can also prevail under the direct method of proof by constructing a “convincing mosaic” of
circumstantial evidence that “allows a jury to infer intentional discrimination by the decision-
maker.” Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7th Cir. 1994). Circumstantial
evidence of discrimination may include (1) “suspicious timing, ambiguous statements oral or
written, behavior toward or comments directed at other employees in the protected group;” (2)

evidence that “employees similarly situated to the plaintiff other than in the characteristic ... on

ee

*pjaintiffs’ complaint includes 42 U.S.C. § 1981 claims, but the methods and order of proof applicable to
Title VII and § 1981 are identical. Hong v Children's Mem. Hosp., 993 F.2d 1257, 1266 (7 Cir. 1993). The
court’s analysis and conclusions therefore apply to Plaintiffs’ § 1981 and Title VII claims.

19


61, 63, 65, 74, and 77 of its statement of material facts because Plaintiffs attempt to create an
issue of fact by denying some of LaSalle’s statements that are not actually in dispute. Plaintiffs
consistently rely on evidence that does not dispute LaSalle’s factual assertion but merely
qualifies the stated fact. For example, LaSalle asserts in paragraph 59 that “(when Posley
requested an explanation for why she had not been invited to a particular meeting in late January
or early February of 2004, Oyos assured her that it was an oversight and apologized numerous
times.” The support for this statement comes straight from Posley’s deposition. Plaintiffs deny
paragraph 59, claiming that Posley testified that Oyos’ apology and explanation was not credible.
The mere fact the Posley did not believe or accept Oyos’ apology, however, is an inadequate
basis to deny that Oyos in fact apologized on numerous occasions. Accordingly, the denial to
paragraph 59 is inappropriate. Likewise, Plaintiffs’ objections to the remaining above-referenced
paragraphs are inappropriate and the facts are therefore deemed admitted.

Plaintiffs’ objections to paragraphs 49 and 83, however, are justified because each of the
statements includes mischaracterizations of the cited testimony. In paragraph 49, LaSalle states,
“Posley acknowledged she was responsible for the problems. . .” In fact, Posley acknowledged
only that she was responsible for the work that was not completed on time. Posley steadfastly
disclaimed responsibility for the failure to complete the assignment in a timely fashion.
Similarly, LaSalle asserts in paragraph 83 that Fields-Feagins “acknowledged that Halter was
correct that she needed further development in order to be an Analyst Il...” Fields-Feagins,
however, testified only that she had room for development, not that any additional development
was necessary in order for her to be qualified for promotion. LaSalle also asserts in paragraph 83

that “Fields-Feagins admitted that Halter believed that she was not qualified to be an Analyst


First, Bell concedes that she did not disagree in principle with Tate’s review. Bell testified that
“I wouldn’t say he was questioning my knowledge [on the wire account]. It may have been he
used some verbage [sic] that I just did not agree with.” Second, Bell testified that her
involvement with the wire account predated Tate’s hiring. This testimony acknowledges that
Tate’s review was based on an incomplete appreciation of her work on the account. Tate himself
seemed to acknowledge as much by agreeing to change the review after speaking with Kendrick,
who was more familiar with Bell’s contributions. Furthermore, there is no evidence that Tate’s
original review of Bell’s work on the wire account reduced Bell’s overall 2001 rounded
performance rating or that it would have otherwise adversely affected her eligibility for
promotions, salary increases, or other tangible job benefits. Finally, even if Bell’s 2001
performance review was interpreted to reveal that Tate harbored a bias against Bell, it provides
no basis to infer that his bias was racially motivated, since Posley did not challenge her “exceeds
expectations” 2001 performance review. Under these circumstances, any inference that could
possibly be drawn from Bell’s original 2001 performance review is too weak to allow Plaintiffs
to survive summary judgment.

Plaintiffs contend that Tate betrayed his preference for Caucasian employees by giving,
Thompson an “exceeds expectations” for “attendance/dependability” despite the fact that she
missed three days in the fourth quarter of 2001. There is no evidence that three absences in a
three-month period represents a per se violation of LaSalle’s attendance policy. LaSalle requires
only that, in those circumstances, an employee provide their supervisor with a legitimate
justification for their absences. In most instances, of course, an employee would have little

difficulty doing so. There is no evidence that Thompson missed a single day in 2001 aside from

25


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

ARNISA BELL,
TIFFANY FIELDS-FEAGINS
and JULIA POSLEY

Plaintiffs,
No. 03 C 0607

v.

LASALLE BANK N.A./ABN
AMRON.A., INC.

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs Arnisa Bell, Tiffany Fields-Feagins, and Julia Posley filed a four-count Second
Amended Complaint against their former employer, defendant LaSalle Bank N.A./ABN AMRO
N.A., Inc. (“LaSalle”), Plaintiffs allege that LaSalle discriminated against them by denying them
promotions in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 20008 et seq.
(Count I), and 42 U.S.C. § 1981 (Count Il). Plaintiffs also allege that LaSalle violated Title VIT
(Count III) by retaliating against them for filing Charges of Discrimination with the Equal
Opportunity Employment Commission (“EEOC”), as well as for filing the present lawsuit.'
Before the court are (1) Plaintiffs’ motion for summary judgment on Count III; (2) Plaintiffs’

motion to strike certain portions of LaSalle’s responses to Plaintiffs’ Local Rule 56.! Statement

‘plaintiffs also alleged that LaSalle violated the Illinois Whistleblower Act, 775 ILCS 5/1-101, etc. (Count
1V) by retaliating against them for reporting illegal behavior to the appropriate regulatory agency. The court,
however, granted LaSalle’s motion to dismiss Plaintiffs’ claim under the Illinois Whistleblower Act for lack of
subject matter jurisdiction because the Illinois Whistleblower Act is preempted by the terms of the Illinois Human.

Rights Act, 775 ILCS $/1-101 e¢ seq. See January 10, 2005 Memorandum Opinion and Order [Docket # 78]

1


the positions were in the securities or banking industry. Jd.

Fields-Feagins began her employment with LaSalle on August 1, 2000. Jd. at 19. Of the
Plaintiffs, Fields-Feagins was the least experienced. At the time she was hired, Field-Feagins
had only limited knowledge of securities. Id.

Within the Reconciliation Department, the position immediately above Analyst I was
Analyst If, or “Senior Analyst.” /d. at 5. Promotion from Analyst I to Senior Analyst was a
“career progression promotion, ” which meant that an Analyst I was recommended by their
manager for promotion when and if the analyst qualified for the promotion. Plaintiffs’ Local
Rule 56.1 Statement of Material Facts (“PAF”) {| 1. Because the promotion from Analyst I to
Senior Analyst was a career progression promotion, there was no limit to the number of analysts
who could at any one time hold the rank of Senior Analyst. /d. at {| 2.

To be eligible for promotion to Senior Analyst, an Analyst I had to demonstrate that she
possessed (1) the type of sophisticated accounting experience or education necessary to handle
the complex and sophisticated accounts given to a Senior Analyst; and (2) strong interpersonal
skills to allow her to effectively service internal LaSalle clients, step into a leadership role
amongst her peers, and serve as a resource to the Reconciliation Department for processing
difficult transactions. Jd. at § 7.

B. The Primary Decision-Makers for the Contested Promotion Decisions

Throughout much of 2001, Jean Kendrick, a Caucasian female, served as the
Reconciliation Department’s unit manager, while Terrance Tate, an African-American male,
served directly beneath her as the department’s day-to-day supervisor. DSF at §{ 14, 16, 17; PAF

413, 14. Kendrick hired Tate but quickly became dissatisfied with his performance and

12


additional information in LaSalle’s responses to these paragraphs will be disregarded. See Malec
v. Sanford, 191 F.R.D. 581, 584 (ND. TI. 2000) (“Rule 56 1(b)(3)(B) ‘provides the only
acceptable means of ... presenting additional facts.””) (quoting Midwest Imports, Ltd. v. Coval,
71 F.3d 1311, 1316 (7" Cir. 1995) (emphasis in original).

LaSaile’s responses to paragraphs 10, 11, 16, 17, 20, 21, 23, 45, 47, 48, 50, 56, 59, 62,
63, 66, 67, and 81, however, are appropriate. In each instance, LaSalle’s response properly
identifies mischaracterizations of testimony or asserted facts unsupported by the cited material.
Accordingly, the court denies Plaintiffs’ motion to strike as to these paragraphs.

Ill. Statement of Facts

A. Plaintiffs Join the Reconciliation Department

In 2000, LaSalle hired or transferred Plaintiffs, who are all African-American women,
into its Trust Reconciliation Department (“Reconciliation Department”) as Trust Compliance
Analysts I (“Analyst I”). DSF 946, 8, 9, 11. As Analysts T, Plaintiffs were were responsible for
reconciling accounts for different business units. /d.

Posley began her employment with LaSalle on May 11, 1998 as a Reconciliation Clerk in
the Global Custody Department. /d. at 110. Posley was promoted to the position of Analyst Tin
the Reconciliation Department in June of 2000, where she was given increasingly complex work
that she successfully handled with little supervision. /d. at | 11. By the time she joined the
Reconciliation Department, Posley had nearly 15 years of experience in the banking industry.

Bell began her employment with LaSalle on October 10, 2000. Id. at 8. At the time she
was hired, Bell was pursuing a degree in accounting, which she ultimately received in January

2002. Id. Prior to joining LaSalle, Bell had held various accounting positions, though none of

11


informed decision regarding Posley’s qualifications for promotion.

2. Julia Posley - Failure to promote at the time of Sobodas’ promotion

LaSalle contends that Posley was not promoted when Sobodas became a Senior Analyst
because Posley’s main internal client, Erlinda Oyos, expressed serious concerns about Posley’s
performance.

Plaintiffs attempt to show pretext by arguing that LaSalle has proffered conflicting
reasons for its promotion decision. An employer’s shifting and inconsistent explanations can
provide a basis for a finding of pretext. Rand v. CF Indus., Inc., 42 F.3d 1139, 1146 (7" Cir.
1994). But “the explanations must actually be shifting and inconsistent to permit an inference of
mendacity.” Schuster, 327 F.3d at 577. Pretext is not established if the proffered explanations
are “substantially consistent.” Myrick v. Aramark Corp., No. 02 C 5890, 2004 WL 906176, at
*9 (N.D. IIL. Apr. 28, 2004). See Herrnreiter v. Chicago Hous. Auth., No. 98 C 5209, 2001 WL
856623, at *9 (N.D. fl. July 20, 2001).

Plaintiffs argue that no one ever told Posley that she was being denied a promotion
because of alleged problems relating to her servicing internal clients. Instead, Plaintiffs maintain
that Tate told Posley that the reason she was not being promoted was because she “did not train a
temporary staff person fast enough.” Plfs.’ Memo. at 11. (internal citation omitted). Plaintiffs’
assertion, however, is not supported by the evidence. Posley explicitly testified that her failure to
train a temporary employee was only one of the reasons she was not promoted. The fact that
Posley cannot now recall the other reasons Tate gave for her failure to receive the promotion
does not show that LaSalle proffered inconsistent reasons for its promotion decision.

Plaintiffs also argue that LaSalle has provided conflicting reasons for Sobodas’

32


into a lower level position and whose job performance had been observed by other LaSalle
officers for several years. Thus, Kendrick could reasonably rely on Thompson’s supervisor’s
evaluations of her analytical ability. Kendrick testified that she discussed Thompson’s analytical
ability with LaSalle employees familiar with Thompson’s job performance, including her
manager Rick Guthrie, and that they advised her that Thompson had “[g]ood analytical skills.”
Thus, the evidence demonstrates that Kendrick did in fact regard analytical skills to be an
important requirement for the Senior Analyst position.®

Finally, there is no evidence of pretext in LaSalle’s reliance on Posley’s lack of securities
and industry knowledge as a reason for its decision not to promote Posley. Kendrick did not
have Posley’s resume at the time Thompson transferred into the department. As a result,
Kendirck did not know the full extent of Posley’s industry knowledge when declining to promote
Posley to Senior Analyst. But Kendrick did know at the time of Posley’s hiring the breadth and
depth of Posley’s industry knowledge. Since Kendrick was either Posley’s manager or received
reports from Posley’s manager regarding her performance during the fourth quarter of 2000 and
the first quarter of 2001, Kendrick was in a position to know whether Posley had markedly
altered her understanding of the industry in the few months between her hiring and Kendrick’s
original promotion decision. As such, while Kendrick’s awareness of Posley’s industry

knowledge may not have been complete, it was more than sufficient to allow her to make an

5Thompson’s work experience and education, both of which Kendrick testified she relied on in making her
decision to bring Thompson into the department as a Senior Analyst, further showed that Thompson had strong
analytical skills.

plaintiffs also argue that the fact that complex assignments were not available until right around the time
that Thompson was brought into the department is further evidence of pretext. To the contrary, this fact actually
corroborates LaSalle’s claim that Posley had not demonstrated the ability to handle complex tasks at the time
Thompson transferred into the department.

31


in whole or in part, the promotion decisions regarding Thompson and Sobodas. Thus, evidence
relating to Kendrick’s state-of-mind is relevant and admissible. Furthermore, Plaintiffs’
supervisor Terrance Tate was responsible for recommending whether Plaintiffs ought to receive
the promotion at issue in this case; Kendrick, Tate’s supervisor, was the LaSalle employee
ultimately responsible for deciding whether Plaintiffs were promoted. Similarly, the state-of-
mind of Marilynne Delany, the LaSalle employee who became Tate’s supervisor in December
2001, is relevant because she also participated in the decision not to promote Plaintiffs.

In contrast, Plaintiffs properly raise hearsay objections to paragraphs 66 and 81, both of
which relate to out-of-court statements made to Emily Vander Lugt, a LaSalle employee who
became manager of LaSalle’s Reconciliation department in April 2002. There is no evidence
that Vander Lugt participated in any contested promotion decision relating to Plaintiffs. As such,
her state-of-mind is irrelevant. Therefore, paragraphs 66 and 81 of LaSalle’s statement of
material facts are stricken.

Plaintiffs hearsay objection to paragraph 75 is misplaced but the statement is nevertheless
properly stricken because the document LaSalle relies on in support of the statement has not been
properly authenticated. Accordingly, the statement is stricken. See FRE 901(a).

Finally, with regard to paragraph 47, Posley testified during her deposition that Tate made
the objected-to-statement that LaSalle relies on to support paragraph 47. As such, Posley’s
testimony regarding Tate’s statement is admissible as an admission of a party opponent. See
FRE 801(d)(2)(A).

2. Denial of a statement that is clearly not in dispute

LaSalle moves to strike Plaintiffs’ responses to paragraphs 39, 40, 42, 52, 54, 55, 57, 59,


v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7" Cir. 2003) (disregarding similar unsupported,
conclusory allegations).

Plaintiffs’ allegation that Tate required African-American employees to carry a heavier
workload than Caucasian employees is wholly unsubstantiated by the record. When Posley was
directly questioned whether the African-American and Caucasian employees carried uneven
workloads, Posley answered that she did not know.

Similarly, Bell’s allegation that Tate discriminatorily assigned a temporary worker is
contradicted by her admission that she had already been assigned an assistant at the time the
temporary employee was hired. Bell further admitted that Thompson, a Caucasian employee, did
not have an assistant. The mere fact that Bell was unhappy with the work performed by her
assistant is insufficient to defeat summary judgment.

Plaintiffs’ allegation that Tate “yelled at and demeaned” African-American employees,
but was “polite and cordial” to Caucasian employees also finds no support in the record. In
support of their allegation, Plaintiffs cite only Bell’s deposition testimony where she refers to a
single incident in which Tate questioned her for being late to work, Aside from the fact that
there is nothing in Bell’s testimony to indicate that Tate raised his voice or treated Bell with
disrespect, a single incident of the type alleged by Plaintiffs is insufficient to raise an inference of
intentional discrimination.

Plaintiffs rely on Posley’s deposition testimony to support their allegation that Tate
discriminatorily approved vacation requests. Posiey testified that Tate had told her that he could
not approve her vacation request “until after some date in February.” Sobodas told Posley,

however, that Tate had given Sobodas “more than a day or two” for a house closing. Posley’s

22


LaSalle maintains that Plaintiffs were terminated for violating a LaSalle policy that
prohibits taking documents out of the bank for any reason. Plaintiffs admit that they violated
LaSalle’s policy but contend that copying LaSalle’s documents and disclosing them to their
attomey for use in the present lawsuit is protected activity.

Protected activity includes “oppos[ing] any practice made an unlawful employment
practice” by Title VII, Section 704(a), or “ma[king] a charge, testiffing], assist[ing], or
participatfing] in an investigation, proceeding or hearing” under Section 704(a). 42 U.S.C. §
2000e-3(a). The distinction between participation clause protection and opposition clause
protection is significant because the scope of protection for activity falling under the participation
clause is broader than for activity falling under the opposition clause. See Laughlin v. Metro.
Wash. Airports Auth., 149 F.3d 253, 259 (4" Cir. 1998) (citing Booker v. Brown & Williamson
Tobacco Co., 879 F.2d 1304, 1312 (6" Cir. 1989). Since Plaintiffs copied and disseminated the
LaSalle documents in order to collect and preserve evidence in support of their charge of
discrimination, Plaintiffs’ conduct is best addressed under the ‘participation’ clause. See, e.g.,
Ajayi v. Aramark Bus. Services, Inc., 2004 WL 763840 (N.D. fll. Mar. 3, 2004).

Plaintiffs contend that their surreptitious copying of LaSalle documents and subsequent
disclosure of them to their attorney is protected activity because the documents were discovered
in public areas, were not marked confidential, and were believed to support their claims of

discrimination. In support of their argument, Plaintiffs cite Ajayi, 2004 WL 763840. The

their paychecks any faster. Likewise, Plaintiffs failed to show that LaSalle treated them differently by opposing
Bell’s and Posley’s receipt of unemployment benefits.

39


plaintiff in Ajayé photocopied time cards to which she routinely had access, because the EEOC
had requested them while investigating her charge of discrimination. The court found that, under
those circumstances, the plaintiff was “assist{ing], or participat[ing] ... in an {EEOC]
investigation, proceeding, or hearing,” and thus, her conduct was protected.

The circumstances in this case, however, are markedly different. There is no evidence
that the EEOC or Plaintiffs’ attorney ever requested that Plaintiffs copy LaSalle’s documents.
Moreover, unlike the plaintiff in Ajayi, Plaintiffs photocopied documents that were not readily
available to them. Indeed, Plaintiffs photocopied their supervisor’s tasks lists, portions of the
personnel records of Thompson and Sobodas, and e-mails between Tate and other LaSalle
management employees. While Plaintiffs perhaps innocently acquired the documents discovered
on the office copier, the documents taken out the trash can were discovered only by scavenging
through the documents and materials removed from Tate’s desk following his termination. Thus,
whereas the plaintiff in Ajayi discovered documents in the normal course of business, Plaintiffs
engaged in a deliberate effort to uncover evidence to support their claims.

As a consequence, this case is more akin to Laughlin v. Metro. Wash. Airports Auth., 149
F.3d 253 (4" Cir. 1998) (plaintiff's copying of personnel records found during an unauthorized
search of plaintiff's supervisor’s desk was not protected activity under Title VII's opposition
clause), O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9" Cir. 1996) (plaintiff's
copying of documents found during an unauthorized search of plaintiff’s supervisor’s office was
not protected activity under Title VII's opposition clause), and Watkins v. Ford Motor Co., 2005
WL 3448036 (S.D. Ohio, Dec. 15, 2005) (plaintiff's copying of documents from a binder found

in open view was not protected activity under Ohio’s anti-discrimination laws). Like the

40


infer that Kendrick’s termination recommendation was not based on her good faith appraisal of
his performance. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 744-45 (7" Cir, 1999)
(recognizing an inference of non-discrimination when the same individual both hires and fires the
plaintiff based on the common-sense notion that someone who intended to discriminate against a
person would never initially hire that person).

In light of the foregoing, the court finds that Plaintiffs have failed to present enough
circumstantial evidence to form a “convincing mosaic” of intentional discrimination.

B. Disparate Treatment - Indirect Method of Proof

Under the indirect method of proof, the plaintiff bears the burden of producing evidence
to establish a prima facie case of discrimination. Rhodes, 359 F.3d at 504, To establish a prima
facie case of race discrimination, Plaintiffs must produce evidence that (1) they belong to a
protected class; (2) they performed their job according to their employer's legitimate
expectations; (3) they suffered an adverse employment action; and (4) a similarly-situated
employee who was not a member of a protected class was treated more favorably. /d. If the
Plaintiffs meet this burden, LaSalle must then articulate a legitimate, non-discriminatory reason
for its action. If LaSalle offers a legitimate, non-discriminatory reason, the burden shifts back to
Plaintiffs to present evidence that LaSalle’s proffered reason is a pretext for discrimination. Jd.
If Plaintiffs produce evidence of pretext, a fact-finder could infer discrimination.

For purposes of summary judgment, LaSalle concedes that Plaintiffs can establish a
prima facie case of discrimination and presents legitimate, non-discriminatory reasons for its
promotion decisions. Thus, the relevant inquiry is only whether LaSalle’s proffered reasons are

pretextual.

28


attach the document to the statement or to direct the court to its location. Accordingly, this
statement is also stricken.

2. Mischaracterization of the evidence offered in support of the propounded
statement

LaSalle also moves to strike paragraphs 98, 152, 195, 200, 208, and 348, arguing that the
evidence cited by Plaintiffs does not support these statements. The court agrees. Plaintiffs
repeatedly mischaracterize or stretch the cited evidence. These statements are therefore stricken
to the extent that they are not supported by the evidence.

3. Reliance on hearsay, opinion testimony, or conjecture

LaSalle further moves to strike paragraphs 86, 118, 36, 220, 222, 223, 277, 314, and 315,
arguing that Plaintiffs attempt to support these statements with hearsay, opinion testimony, or
conjecture.

Inadmissible hearsay cannot be used to create a genuine issue of material fact. Winskunas
v. Birnbaum, 23 F.3d 1264, 1268 (7" Cir. 1994). Rule 801(c) of the Federal Rules of Evidence
(“FRE”) defines hearsay as “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A statement
offered for some other purpose is not hearsay. See United States v. Bursey, 85 F.3d 293, 296 (7
Cir. 1996).

Paragraphs 86 and 277 are inadmissible hearsay. Both paragraphs are out-of-court
statements allegedly made by Plaintiffs’ co-worker offered to establish the truth of the matter
asserted: namely, that Plaintiffs’ co-worker did not have supervisory experience prior to

accepting a position with LaSalle. Similarly, Paragraphs 314 and 315 are inadmissible because


other reasons, she had failed to train a temporary employee fast enough. Id. at ¥ 117. Tate told
Bell that she had not been considered for promotion because she had failed to make Kendrick
sufficiently aware of her contributions to the department. Jd. at 110. When Fields-Feagins
asked Tate why she had not been promoted, Tate was unable to give her an answer. /d. at 4 100.

Shortly thereafter, Bell and Fields-Feagins received verbal and written criticisms of their
job performance, which they believed were a direct result of the fact that they questioned
Sobodas’ promotion. Id. at §§] 89, 101, 137, 165, 170. After registering their disagreement in
written rebuttals to their performance reviews, Bell and Fields-Feagins met separately with
Marilynne Delany, Kendrick’s successor as unit manager. Jd. Following Bell’s meeting with
Delany, Bell’s performance review was revised to reflect more accurately the contributions Bell
had made to the department before Tate became Reconciliation Department supervisor. Jd. at |
167. Delany advised Fields-Feagins that her review would also be rewritten, although this
rewrite never occurred. /d. at 174.

E. Posley Promoted to Senior Analyst

Posley also met with Delany but not to discuss her performance review; Posley did not
challenge her “exceeds expectations” performance rating. Instead, Posley met with Delany to
discuss what she needed to do in order to qualify for promotion to Senior Analyst. DAF at § 54.
Delany recommended a meeting with Posley’s main internal client, Erlinda Oyos, who had
repeatedly complained about Posley’s job performance and professionalism. /d. Posley agreed,
and shortly thereafter, a meeting was held between Oyos, Posley, Tate and Delany, during which
Oyos formally identified her expectations of Posley. In the months following the meeting, Oyos

made no further complaints regarding Posley’s performance. {d. As a consequence, according to

15


Discrimination with the EEOC, John Grubbs, a Caucasian male and LaSalle’s Head Human
Resources Advisor, investigated Plaintiffs’ allegations of discrimination and retaliation. PAF at
4 131. Based on his investigation, Grubbs concluded that the “determining factor” for why
Sobodas was promoted to Senior Analyst while Plaintiffs were not was that Sobodas had “over
five years” of “trust accounting” experience performing the exact work required of a Senior
Analyst. PAF at 4] 131.

G. Posley’s Final Written Warning

At some point in 2002, Michael Halter, a Caucasian male and Tate’s successor as
Reconciliation Department supervisor, asked Posley to assume an account previously handled by
Sobodas since Sobodas was scheduled to be out of the office due to her father’s illness. /d. at
4250. When Sobodas returned several weeks later, Posley met with Halter to discuss the
possibility of returning the account to Sobodas. /d. at | 254. At that meeting, Posley admitted
that she had failed to timely complete certain portions of the reconciliation, though she advised
Halter that Sobodas had agreed to complete the unfinished work. Id. at § 255. On October 15,

2002, LaSalle issued Posley a “final written warning” for failing to complete a reconciliation
project and failing to timely inform her supervisor that the work had not been done. DAF at 457.

Grubbs initially disagreed with the decision to issue Posley the “final written warning.”
PAF at 4 260. Emily Vander Lugt, Delany’s successor as Reconciliation Department unit
manager, however, explained to Grubbs why she believed the “final written warning” was
justified. Jd. After hearing Vander Lugt’s explanation, Grubbs sent an e-mail to Vander Lugt
and other decision-makers stating that he “fully support[ed]” their decision to issue the “final

written warning.” Jd.


non-moving party as well as view all reasonable inferences in that party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Il. MOTIONS TO STRIKE

A. LaSalle’s Motion to Strike Certain Paragraphs in Plaintiffs’ Local Rule 56.1
Statement of Additional Facts

1. Failure to properly cite to supporting evidence or attach supporting material

LaSalle moves to strike paragraphs 52, 183 through 186, 265, 302, and 307 of plaintiff’ ‘s
Local Rule 56.1 Statement of Material Facts, arguing that Plaintiffs fail to cite evidence in
support of these statements of fact.

With respect to paragraphs 52, 183, 185, and 186, Plaintiffs identify the deposition that
they allege supports their factual assertions but fail to identify either the relevant page number(s)
or to attach the deposition. Where possible, the court has made a good-faith effort to determine
what portion of the cited materials corroborate Plaintiffs’ assertions, but the court has been
unable to identify any support for the above-referenced paragraphs. Moreover, while Plaintiffs
had the opportunity to respond to LaSalle’s objections to these paragraphs, Plaintiffs neglected to

do so. In light of the foregoing, these statements are stricken.

Tuming to paragraphs 184, 265, and 302, Plaintiffs fail to cite to the part of the record
that supports their position. Accordingly, these statements are stricken. See United States v.
Dunkel, 927 F.2d 955, 956 (7" Cir. 1991) (“Judges are not like pigs, hunting for truffles buried”
in the record). See also Greer v. Bd. of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7" Cir.
2001) (“a lawsuit is not a game of hunt the peanut.”).

While Plaintiffs identify a document that they allege supports paragraph 307, they fail to


which LaSalle issued the “final written warning.”

The fact that Grubbs initially disagreed with LaSalle’s decision to issue the “final written
warning” is not evidence of pretext. First, it is not clear that Grubbs disagreed with the decision.
While he initially expressed concer with the severity of the punishment, after being advised by
Vander Lugt of the basis for her decision, he sent an email to Vander Lugt and the other decision-
makers stating “... I fully support your decision to keep this as a final warning.” Regardless,
there is no basis to infer pretext from the mere fact that one of several decision-makers opposed
the contested employment decision. The relevant inquiry is not whether LaSalle’s decision was
correct, but whether it was proscribed by Congressional statute.’ See McCoy v. WGN
Broadcasting Co., 957 F.2d 368, 373 (7" Cir. 1992) (citations omitted) (the court does “not sit as
a super-personnel department that re-examines an entity’s business decisions.”). Posley has
made no attempt to show that she was treated differently from Caucasian employees with respect
to the issuance of “final written warnings,” and thus, there is no basis to infer pretext.

Cc Present Lawsuit

Plaintiffs further argue that LaSalle retaliated against them for filing the present lawsuit
by (1) terminating Bell’s and Posley’s employment and (2) designating Fields-Feagins as

ineligible for rehire following her resignation.’

§posley’s argument that she was entitled to graduated discipline fails for the same reason. Posley fails to
cite to a LaSalle policy stating that a “final written warning” may not be issued until an employee has been issued a
lesser warning. As such, there is no basis to infer retaliation from LaSalle’s decision to issue a “final written
warning” for Posley’s first violation.

°Plaintiffs’ so-called “other evidence of retaliation” does not support an inference of retaliation. Posley’s
allegation that she was not invited to work meetings is not supported by the record. LaSalle failed to invite Posley to
a single meeting and when her supervisor learned of the oversight she apologized to Posley numerous times.
Plaintiffs’ assertions that unidentified LaSalle employees made negative remarks about Plaintiffs to other LaSalle
employees is based on inadmissible hearsay. The fact that Posley received her final paycheck “a week or two late” is
irrelevant since Plaintiffs’ failed to put forth evidence that terminated employees outside the protected class received

38


the three absences in August and September, and, perhaps more importantly, there is no evidence
that she failed to timely complete any of her assignments. As such, there is no basis to conclude
that Thompson’s 2001 “attendance/dependability” performance rating was unjustified.

Plaintiffs allege that Tate revised the written requirements for the Senior Analyst position
in an effort to justify LaSalle’s promotion decisions. In support of their allegation, Plaintiffs cite
to a “To-Do” list prepared by Tate for the week of January 22, 2002, which reminds Tate to
“develop list of requirements for Senior Reconciliation Analyst Position and identify where
Arnissa Bell did not meet these requirements.” Even considered in the light most favorable to
Plaintiffs, Tate’s “To-Do” list cannot be viewed as evidence of a discriminatory animus. At
most, Tate’s “To-Do” list could imply that Tate was hostile to Bell because there is no evidence
that the revised job description worked to the disadvantage of Posley, Fields-Feagins, or any
other African-American employee in the Reconciliation Department. But even that implication
is foreclosed because Bell cannot show that she met the unrevised written requirements. Since
there is no evidence that Bell was prejudiced by Tate’s revision of the job requirements, there is
no basis to infer discriminatory intent from Tate’s “To-Do” list.

Plaintiffs also argue that Tate afforded Sobodas preferential treatment in her 2001
performance review. Specifically, Plaintiffs contend that Sobodas improperly received a pay
increase when the human resources department incorrectly identified Sobodas’ rounded
performance rating to be “1" or “far exceeds expectations,” when in fact her performance rating
was a “2" or “exceeds expectations.” It is undisputed, however, that Sobodas received the so-
called preferential treatment from the human resources department, not from Tate or Kendrick.

As a consequence, Plaintiffs’ argument fails because they cannot link the alleged preferential

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of Material Facts; (3) LaSalle’s motion for summary judgment on all of Plaintiffs’ claims; (4)
LaSalle’s motion to strike portions of Plaintiffs’ Local Rule 56.1 Statement of Material Facts;
and (5) LaSalle’s motion to strike portions of Plaintiffs’ response to LaSalle’s Local Rule 56.1
Statement of Material Facts. The court has jurisdiction over this action pursuant to 42 U.S.C.
2000e-5(f) and 28 U.S.C. §§ 1331 and 1343. For the reasons stated below, the court grants in
part and denies in part Plaintiffs’ motion to strike, grants in part and denies in part LaSalle’s
motions to strike, denies Plaintiffs’ motion for partial summary judgment, and grants LaSalle’s
motion for summary judgment.
IL SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The
party seeking summary judgment bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Jd. at 324; Insolia
v. Philip Morris Inc., 216 F.3d 596, 598 (7" Cir. 2000). A material fact must be outcome
determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention
that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp.,

200 F.3d 485, 492 (7" Cir. 2000), the court must construe all facts in a light most favorable to the


that “[Tate] didn’t have the authority to make those [promotion] decisions on his own. Jean
[Kendrick] made all of the decisions even though [Tate] was the manager.” Thus, Bell herself
acknowledges that in order to be promoted, she needed to made Kendrick aware of her
contributions to the department.

Plaintiffs also argue that Grubbs testified that Kendrick told him that Bell was not
qualified for promotion to Senior Analyst, not because of problems servicing internal clients, but
because she “did not have the experience necessary to do the sophisticated level of work of the
Analyst IJ position.” Kendrick’s deposition testimony, however, merely identified Bell’s “lack of
professionalism” with an internal client as one of the performance deficiencies that disqualified
Bell for promotion at that time. Setting aside that qualifying statement, the explanation Kendrick
gave in her deposition testimony is simply that Bell’s performance demonstrated that she was not
qualified for promotion. Kendrick’s deposition testimony is thus broad enough to encompass a
full range of performance deficiencies, including Bell’s alleged failure to demonstrate the ability
to complete complex assignments. As such, Kendrick’s statement to Grubbs is a more precise,
not an inconsistent reason for her promotion decision. See Perfetti v. First Nat. Bank of
Chicago, 950 F.2d 449, 456-57 (7" Cir. 1991) (finding no evidence of pretext where decision-
maker simply “elaborated” at trial on his justification for his employment decision).

Plaintiffs further argue that LaSalle denied Bell a promotion at the time Sobodas was
promoted despite the fact that Bell satisfied the requirements set forth in the Senior Analyst job
description. This argument would have merit if Plaintiffs could establish that Bell was qualified
for promotion. But Plaintiffs have failed to establish that Bell was in fact qualified for

promotion. And Kendrick’s honest belief that Bell had provoked complaints about her “lack of

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Plaintiffs may establish pretext “directly with evidence that [an] employer was more
likely than not motivated by a discriminatory reason, or indirectly by evidence that the
employer’s explanation is not credible.” Wade v. Lerner New York, Inc., 243 F.3d 319, 321 (7"
Cir. 2001). Plaintiffs may proceed indirectly by attempting to show that LaSalle’s “ostensible
justification is unworthy of credence” through evidence “tending to prove that [LaSalle’s]
proffered reasons are factually baseless, were not the actual motivation for the [contested
employment decision] in question, or were insufficient to motivate the [decision.]” Testerman v.
EDS Tech. Prods. Corp., 98 F.3d 297, 303 (7" Cir. 1996) (quotations omitted). “When a
plaintiff uses the indirect method of proof, no one piece of evidence need support a finding of
{race] discrimination, but rather the court must take the facts as a whole.” Huffv. UARCO, Ine.,
122 F.3d 374, 385 (7" Cir. 1997) (citation omitted).

1. Julia Posley - Failure to promote at the time of Thompson’s transfer

LaSalle contends that Posley was not promoted at the time Thompson transferred into the
unit as a Senior Analyst because Posley (1) had not been in the Reconciliation Department for
very long; (2) had not demonstrated the ability to take on complex analytical work; and (3)
possessed relatively little securities and industry knowledge.

Plaintiffs first argue that the fact that Thompson was brought into the Reconciliation
Department as a Senior Analyst, despite having no prior experience in the unit, shows that
LaSalle did not regard a long tenure in the unit as a prerequisite to the Senior Analyst position.
While true, it is immaterial because nothing in the record suggests that LaSalle has ever required
an individual to work in the Reconciliation Department as an Analyst I before being promoted to

Senior Analyst. Instead, LaSalle, like most employers, hires qualified individuals from outside

29


recommended to her supervisor that he be terminated. PAF { 18. Kendrick’s supervisor rejected
her recommendation and instructed Kendrick to work with Tate to improve his performance. Jd.
at 9 22, 24, 26. Kendrick disagreed with her supervisor’s decision, believing that it was unduly
influenced by LaSalle’s pursuit of affirmative action goals. /d. at { 27. Nevertheless, Kendrick
did as instructed, ultimately helping Tate improve his performance to the point that she no longer
recommended his termination. /d. at 28.

Cc Jill Thompson and Rebecca Sobodas Join the Reconciliation Department

At the start of 2001, there were no Caucasian analysts or Senior Analysts in the
Reconciliation Department. Within weeks, however, LaSalle hired or transferred two Caucasian
women into the department: Jill Thompson and Rebecca Sobodas. Thompson transferred into
the Reconciliation Department as a Senior Analyst in early 2001 from a supervisory position in
LaSalle’s Land Trust Operations department. DSF at {37. Sobodas, commenced her
employment with LaSalle as a temporary employee in the department in January 2001 and was
promoted to Senior Analyst in December 2001. Jd. at 4] 42.

Kendrick was familiar with Thompson, having worked with her in the Land Trust
Operations department. Jd. at 4 40. Based largely on her first hand knowledge of Thompson’s
experience and job performance, Kendrick believed that Thompson had substantial accounting,
banking, and securities knowledge; a good working knowledge of the products that were
processed in the Reconciliation Department, project management experience; good
communication skills; and good technical skills, including knowledge of Excel. /d. at q 39, 40.

Unlike Thompson, Sobodas had never worked at LaSalle prior to joining the

Reconciliation Department. Sobodas had been an accounting supervisor with a securities broker

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Delany, Posley then became “promotable.” Jd. at 455. Tn any event, on March 12, 2002, Tate

and Delany, in consultation with Kendrick, promoted Posley to Senior Analyst. /d. at §j 56.

F. Plaintiffs’ Formal Complaints of Discrimination and Retaliation

Believing by this time that they were victims not only of discrimination but also
retaliation, Plaintiffs submitted Charges of Discrimination Questionnaires to the EEOC on or
about December 13, 2001. Jd. at {32. On February 21, 2002, Plaintiffs perfected their Charges
of Discrimination by signing the Charges prepared by the EEOC. Id.

Around the same time, Plaintiffs began accumulating evidence that they believed
supported their allegations of discrimination. Jd. at 4 92. On several occasions, Plaintiffs
discovered documents inadvertently left on the Reconciliation Department’s copier machine that
Plaintiffs believed would help their case. Id. at ff 94, 95, 96, Plaintiffs found at least one
document in the trash with other documents and materials that had been discarded by LaSalle
employees charged with emptying the contents of Tate’s desk following his termination. On
each occasion, Plaintiffs made a photo-copy of the document, placed the original back where it
was found, and retained the copy for their records. Td. at 194, 95, 96. By the time Plaintiffs
were terminated, Plaintiffs had copied a personnel record of proposed job performance objectives
for Thompson; a personnel record of proposed job performance objectives for Sobodas; several
“To Do” lists prepared by Tate that reminded him to “develop list of requirements for Senior
Reconciliation Analyst Position and identify where Arnisa Bell did not meet these requirements,”
and an internal e-mail from Kendrick to Tate. Id. at 4994, 95, 96.

After LaSalle learned in February of 2002 that Plaintiffs had filed Charges of

16