Kransdorf. Specifically, Ortiz had transferred out of the EEO department and was working as a
Training Specialist in the Workforce Education and Development department, and after that
transfer, Kransdorf assumed some of the duties that Ortiz had performed in addition to
performing many managerial functions in the EEO department. Thus, Kransdorf was given the
title of Manager of the EEO department to reflect the additional duties he had assumed and was

performing satisfactorily.

There is nothing in the record showing that Metra is lying about its proffered explanation,
and Ortiz has not introduced any evidence demonstrating that Metra’s decision to select
Kransdorf instead of Ortiz for the EEO Manager position was in retaliation for his filing a charge
of discrimination with the EEOC in April 2001. In sum, Ortiz has failed to establish a prima
facie case of retaliation and cannot demonstrate that Metra’s proffered reason was a pretext for
any retaliatory intent. Thus, we find that there are no issues of material fact, and Metra is entitled

to summary judgment on this claim.

Cc Metra Is Entitled to Summary Judgment on its Counterclaim for Breach of
Fiduciary Duty

Finally, we consider Metra’s counterclaim for breach of fiduciary duty. Metra argues that
it is entitled to summary judgment on its breach of fiduciary duty claim because Ortiz does not
dispute that he copied, removed and disseminated confidential Metra documents. While
employed by Metra in the EEO department from June 1992 through October 2000, Ortiz was
entrusted with confidential documents and information. Ortiz admits that he was aware of
Metra’s policies and procedures to keep such information confidential and he knew that it would

be a violation of Metra’s policies to remove any confidential documents and information from

20


assessment of that ability.” Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th
Cir, 1992). Ortiz cannot establish a genuine issue of fact based upon his own assertions that he

was performing his job satisfactorily.

Second, Metra argues that the lateral transfer Ortiz choose to accept was not a an adverse
employment action. The Seventh Circuit has broadly defined what constitutes an “adverse
employment action.” Oest v. Ill. Dep't of Corr., 240 F.3d 605, 612 (7th Cir. 2001), citing
Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). An adverse action “must be
materially adverse to be actionable, meaning more than a mere inconvenience or an alteration of
job responsibilities.” Jd. Adverse employment actions may include “termination of employment,
a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices that might be unique
to a particular situation.” /d, Although adverse employment actions do not need to be
quantifiable in terms of pay or benefits, “not everything that makes an employee unhappy is an

actionable adverse action.” Smart, 89 F.3d at 441.

In the retaliation context, a plaintiff must, at a minimum, “complain of some action on the
employer's part that causes [the plaintiff] to suffer real harm.” Johnson v. Cambridge Indus.,
Inc., 325 F.3d 892, 902 (7th Cir. 2003). Ortiz’ transfer, without more, does not rise to the level
of an adverse employment action for purposes of Title VII. See, e.g., Williams v. Bristol-Myers
Squibb Co., 85 F.3d 270, 274 (7th Cir, 1996) (“Obviously a purely lateral transfer, that is, a
transfer that does not involve a demotion in form or substance, cannot rise to the level of a
materially adverse employment action.”). “A transfer involving no reduction in pay and no more
than a minor change in working conditions will not do, either.” /d. (collecting cases). It is not

14


Sauceda and Thomas also met with John Wagner, Director of Metra’s Workforce
Education and Training, to discuss Ortiz’ potential transfer to Wagner’s department. Wagner
indicated that he would welcome such a transfer. Ortiz subsequently met with Sauceda, Thomas,
Wagner and William Tupper (another member of AAEC) about a potential lateral transfer to a
training position in Metra’s Workforce Education and Training department. Ortiz accepted a

’ lateral transfer to the position of Training Specialist.

Ortiz’ new training position began October 23, 2000. In this new position in the
Workforce Education and Training department, Ortiz had the same salary, benefits, vacation
time, holidays and worked the same shifts as his previous position in the EEO department. In his
training position, Ortiz also was subject to the same policies and procedures and was in the same
grade level as his previous position in the EEO department.

On December 1, 2000, Metra posted an opening for the position of Employment
Specialist. The position was slotted at a P10 level with an anticipated salary range of $30,000 to
low $40,000. The Employment Specialist position reported to Director of Personnel Harry
Thomas. Metra received applications from 27 individuals, including Ortiz, all of whom were
existing employees. For Ortiz, the Employment Specialist position was a lower position than his
current position as a Training Specialist with a lower salary. As of January !, 2001, Ortiz would
receive a salary increase to $45,944.

On December 19, 2000, Metra’s Qualifications Committee compared the qualifications of
each individual candidate against the minimum qualifications set forth in the posting for
Employment Specialist and found 25 applicants to be minimally qualified for the position.

Several of the applicants subsequently withdrew or disqualified themselves from further


the EEO department. Nevertheless, when Ortiz transferred to the Workforce Education and
Development department, he copied and removed approximately 2400 confidential documents
from the EEO department. Ortiz also subsequently disseminated some of those confidential

documents.

To state a claim for breach of fiduciary duty under Illinois law, a plaintiff must prove (1)
the existence of a fiduciary duty, (2) breach of that duty, and (3) damages as a result of that
breach. McLaughlin v. Chicago Transit Authority, 243 F. Supp. 2d 778, 779 (N.D. Ill. 2003).
Based on the facts admitted by Ortiz, we conclude that he has breached the fiduciary duty he
owed Metra. Although Ortiz asserts that he was not a manager and, therefore, did not have any
fiduciary duty, he was entrusted with confidential information and had an obligation to maintain
the confidentiality of such information. In addition, Ortiz admits that he was aware of Metra’s
policies to maintain the confidentiality of such information and not to remove any such
information from the EEO department. Nevertheless, Ortiz disregarded Metra’s policies and
removed confidential documents. As such, Metra is entitled to summary judgment on its

counterclaim.


disputed that Metra never hired anyone for the position of Senior Human Resource Generalist.
Instead, Metra created and filled the position of Director of Special Projects for which Ortiz
never applied. Indeed, Ortiz admits that he did not think he was qualified for the position. Thus,
Ortiz cannot establish a prima facie case of retaliation based on Metra’s decision not to fill the

Senior Human Resource Generalist position.

Moreover, Metra has articulated a legitimate, non-retaliatory reason for its decision.
Metra never filled the Senior Human Resource Generalist position but rather hired a Director of
Special Projects for which Ortiz never applied. There is nothing in the record showing that
Metra is lying about its proffered explanation, and Ortiz has not introduced any evidence
demonstrating that Metra’s decision not to hire Ortiz was in retaliation for his filing a charge of
discrimination with the EEOC in April 2001. In sum, Ortiz has failed to establish a prima facie
case of retaliation and cannot demonstrate that Metra’s proffered reason for not filling the Senior
Human Resource Generalist position was a pretext for any retaliatory intent. Thus, we find that

there are no issues of material fact, and Metra is entitled to summary judgment on this claim.

4. Not Selecting Ortiz for the Drug and Alcohol Manager Position
Ortiz again asserts that Metra retaliated against him as a result of his filing the April 2001

EEOC charge by not selecting him for the position of Drug and Alcohol Manger. However,
Metra is entitled to summary judgment on this claim because Ortiz has failed to establish that he
was qualified for the position or that a similarly situated individual was treated favorably.
Indeed, Ortiz admits that he did not have any experience working with the administration of a

drug and alcohol program. In addition, Ortiz also acknowledged that Arturo Mota who


specific than the bald assertion of the general truth of a particular matter, rather it requires
affidavits that cite specific concrete facts establishing the existence of the truth of the matter
asserted.” Hadley v. County of DuPage, 715 F.2d 1238, 1243 (7th Cir. 1983). Moreover,
“[s]peculation does not create a genuine issue of fact, instead, it creates a false issue, the
demolition of which is a primary goal of summary judgment.” Hedberg v. Indiana Bell Tel. Co.,

47 F.3d 928, 932 (7th Cir. 1995) (emphasis added).

In addition, Local Rule 56.1 for the Northern District of Illinois requires that parties
support all disputed facts with specific references to the record and further emphasizes that it is
inappropriate to include legal conclusions and/or argument in the Rule 56.1 statements of facts.
Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871 (7th Cir. 2000) (all relevant facts
denied without supporting documentation must be accepted as true provided the facts are
“properly supported by references to the record or other evidentiary materials”). Because Ortiz
has failed to comply with Local Rule 56.1, we adopt Metra’s statement of the facts in resolving
this motion. However, Ortiz’s failure to comply with the requirements of Local Rule 56.1 does
not mean that summary judgment automatically will be granted in favor of Metra, as we still
must “evaluate all facts in the light most favorable to plaintiff, the non-moving party.” Austin-
Edwards v. Loyola Univ. Med. Cir., 2004 WL 1243940, at *2 (N.D. Ill. June 3, 2004), In
particular, it should be noted that we have reviewed and studied all of the materials submitted by

Ortiz, and when appropriate, we have taken that material into consideration.

10


After Ortiz transferred out of the EEO department into the Workforce Education and
Training department in October 2000, Senior EEO Specialist Joseph Kransdorf assumed some of
the duties that Ortiz used to perform. Kransdorf also was responsible for many managerial
functions in the EEO department. Sometime in 2001 when a management position opened in the
EEO department, Cary spoke with Washington about the position and recommended that
Kransdorf become manager of the EEO department. The position was not posted, which was not
unusual in certain circumstances. For example, when Ortiz became a Senior EEO Specialist in
January 1998, the position was not posted. Moreover, when Ortiz was a Senior EEO Specialist,
he was not performing many of the job duties that Kransdorf was responsible for to qualify for
the EEO Manager position. To the contrary, Ortiz had difficulty performing the Senior EEO
Specialist job. Based on Kransdorf’s performance, he became EEO Manager.

Ortiz filed his complaint alleging retaliation against Metra on December 21, 2001.
Thereafter, in January 2002, Metra posted a position for Communications/Customer Service
Supervisor in the Transportation department. This position included a pay increase and involved
supervisory responsibilities. Ortiz applied for, and ultimately was offered, this promotion
notwithstanding the fact that he had filed his complaint. However, after Metra offered Ortiz the
position, he withdrew his application.

During his deposition which was taken in June 2003, Ortiz first informed Metra that he
had taken confidential documents from the EEO and Employee Relations department.
Specifically, on the day that Ortiz transferred out of the EEO department and into the Training
department, he removed approximately 2400 confidential documents, including such documents

as personnel files, affirmative action reports, discrimination complaints, performance


consideration for the position. In March and April 2001, the remaining candidates, including
Ortiz, were interviewed by Thomas and two other individuals. Two candidates Luis Cuevas and
Gail Svane were recommended, and ultimately hired, for the position as Employment Specialist.

Later in January 2001, Ortiz applied for another position, Senior Human Resources
Generalist, However, the Senior Human Resources Generalist position never was filled because
the needs of the Human Resources department changed after the position was posted. Gail
Washington ultimately determined that the position was not needed and did not fill the Senior
Human Resource Generalist position. Instead, Metra hired a Director of Special Projects, and
Ortiz did not apply for the position.

In the fall of 2001, Metra created a new Drug and Alcohol Manager position. The Drug
and Alcohol Manager would be responsible for the oversight and management of Metra’s Drug
and Alcohol Program, including such responsibilities as (1) developing policies for Metra’s drug
and alcohol program and assuring compliance with those policies, (2) developing training
programs on the signs and symptoms of substance abuse. (3) establishing Metra’s drug testing
and collection procedures, (4) overseeing all random, reasonable cause and reasonable suspicion
drug and alcohol testing, (5) coordinating a continuity of services among testers, laboratories and
review officers, and (6) providing support to Metra’s employee assistance program.

Several candidates applied for the job. After an initial round of interviews, the candidates
were evaluated. Based on these evaluations, Washington decided to interview the top five
candidates. Ortiz was not one of the finalists as he did not have any prior experience working
with the administration of a drug and alcohol program. Ultimately, Washington hired Arturo

Mota for the Drug and Alcohol Manager position, effective December 21, 2001.


ultimately was chosen for the position of Drug and Alcohol Manager did, in fact, have more

relevant experience than Ortiz.

Metra also asserts that its legitimate, non-retaliatory reason decision for not selecting
Ortiz for the drug and alcohol management position is because Ortiz was not qualified for the
position. There is nothing in the record showing that Metra is lying about its proffered
explanation, and Ortiz has not introduced any evidence demonstrating that Metra’s decision not
to hire him for the Drug and Alcohol Manager position was in retaliation for filing a charge of
discrimination with the EEOC in April 2001. In sum, Ortiz has failed to establish a prima facie
case of retaliation and cannot demonstrate that Metra’s proffered reason was a pretext for any
retaliatory intent. Thus, we find that there are no issues of material fact, and Metra is entitled to

summary judgment on this claim.

5. Not Selecting Ortiz for the EEO Manager Position
Ortiz finally contends that Metra retaliated against him for filing a charge of

discrimination with the EEOC in April 2001 by denying him the opportunity to become EEO
Manager in January 2002. However, Ortiz did not even apply for the EEO Manager position.
Indeed, it never was posted because Joe Kransdorf, a former colleague of Ortiz, was promoted to
the position. Moreover, Ortiz cannot establish that he was qualified for the position. Indeed,
Ortiz admits that he had consistent performance problems while working as an EEO Specialist,
and as a result of those problems, he transferred to the Workforce Education and Development

department and became a Training Specialist.

Even if Ortiz were able to establish a prima facie case for retaliation, Metra has

articulated a legitimate, non-retaliatory reason for awarding the management position to

19


entitled to presume that statement is true for purposes of summary judgment. /d. When the
denial of a proposed statement is not supported by the material cited, the moving party’s
assertion may be deemed admitted, regardless of what contrary evidence is in the record. /d.;
see also Rogers v. City of Chicago, 320 F.3d 748, 751 (7th Cir. 2003); Albiero v. City of

Kankakee, 246 F.3d 927, 933 (7th Cir. 2001).

Ortiz filed a response to Metra’s statement of facts. Of the 327 numbered paragraphs
submitted by Metra, Ortiz admits 295 of these paragraphs. Of the 32 paragraphs that Ortiz
denies and disputes, he cites only to his affidavit. In addition, Ortiz includes 55 numbered
paragraphs with a total of 90 subparts in his statement of additional facts. Of the 55 paragraphs

that Ortiz submits, he cites solely to his affidavit for 43 paragraphs and each of the 90 subparts.

Federal Rule of Civil Procedure Rule 56(e) requires that affidavits offered in opposition
to summary judgment be made on personal knowledge and set forth such facts as would be
admissible at trial. “Although ‘personal knowledge’ may include inferences and opinions, those
inferences must be substantiated by specific facts.” Drake v. Minnesota Mining &
Manufacturing Co., 134 F.3d 878, 887 (7th Cir. 1998), quoting Davis v. City of Chicago, 841
F.2d 186, 189 (7th Cir. 1988). Self-serving affidavits without factual support in the record are
not sufficient. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001). In many

instances, Ortiz’ affidavit contains unsupported and conclusory assertions and legal argument.

Conclusory allegations alone will not defeat a motion for summary judgment. Thomas v.
Christ Hosp. and Medical Center, 328 F.3d 890, 893-94 (7th Cir. 2003), citing Lujan v. Nat'l

Wildlife Federation, 497 U.S. 871, 888-89 (1990). Indeed, “Rule 56 demands something more


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

EASTERN DIVISION
GILBERT ORTIZ, JR., )
)
Plaintiff/Counter-defendant, y
) No. 01.€ 9815
v. )
) Wayne R. Andersen
METRA COMMUTER RAIL, ) District Judge
)
Defendant/Counter-plaintiff. )

MEMORANDUM OPINION AND ORDER

This matter is before the court on defendant Northeast Illinois Regional Commuter
Railroad Corporation’, incorrectly identified in the complaint as Metra Commuter Rail. motion
for summary judgment on plaintiff's claims of discrimination and retaliation and defendant's
counterclaim for breach of fiduciary duty. Plaintiff Gilbert Ortiz, Jr. filed a complaint against
Northeast [Illinois Regional Commuter Railroad Corporation (“Metra”) alleging retaliation in
violation of Title VII, 42 U.S.C. §§ 2000e ef seg. Plaintiff contends that Metra retaliated against
him on five separate occasions for filing an internal complaint alleging national origin
discrimination in January 2000 and later for filing a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) in April 2001. Metra also has moved for
summary judgment on its counterclaim for breach of fiduciary duty. For the following reasons,

we grant defendant’s motion for summary judgment.


Under the indirect method of proof, a plaintiff must establish that, after engaging in
protected activity, the plaintiff was subjected to an adverse employment action even though he
was performing his job satisfactorily and no similarly situated employee who did not engage in
any protected activity was subjected to the adverse employment action. Hudson, 375 F.3d at 559.
Under the indirect method, failure to satisfy any one element of the prima facie case is fatal to an
employee’s retaliation claim. /d. at 560. Moreover, “[e]ven where a plaintiff establishes all of
the required elements to make out a prima facie case, if the employer presents unrebutted
evidence of a non-invidious reason for the employment action at issue, the employer is entitled to
summary judgment unless there is a material issue of fact as to whether the employer’s non-
invidious reason is pretext for retaliation.” /d.; see also Gleason y. Mesirow Fin., Inc., 118 F.3d

1134, 1146 (7th Cir.1997).

Ortiz argues that Metra retaliated against him on five separate occasions for submitting an
internal complaint of discrimination in January 2000 and later for filing a complaint of
discrimination with the EEOC in April 2001. Ortiz argues that Metra retaliated against him by
(1) laterally transferring him to a training position in Metra’s Workforce Education and
Development department, (2) not selecting him for the Employment Specialist position for which
he applied, (3) not selecting him for the Senior Human Resources Generalist position which
never was filled, (4) not selecting him for the Drug and Alcohol Manager position for which he
applied, and (5) not offering him the position of EEO Manager which was offered to one of his
colleagues. Ortiz has not presented any direct evidence of retaliation to support any of these

allegations. Therefore, we must examine his claims under the indirect method.


B. Ortiz Can Not Establish a Prima Facie Case of Retaliation

Under Title VIL, an employer is prohibited from retaliating against an employee who has
“opposed any practice made an unlawful employment practice ... or ... has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding or hearing under
this subchapter.” 42 U.S.C. § 2000e-3(a). Section 1981 provides in pertinent part: “All persons
... shall have the same right ... to make and enforce contracts ... and to the full and equal benefit
of all laws and proceedings for the security of persons and property as is enjoyed by white
citizens...” 42 U.S.C. § 1981 (a). Retaliation claims under Title Vil and section 1981 are
evaluated by the same standard for liability. Walker v. Abbott Labs., 340 F.3d 471, 474 (7th Cir.
2003). Accordingly, this Court’s analysis under Title VII is equally applicable to Ortiz’ claims

under section 1981.

In Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640 (7th Cir. 2002),
the Seventh Circuit “clarified the standards for summary judgment on Title VII unlawful
retaliation claims.” Hudson v. Chicago Transit Auth., 375 F.3d 552, 559 (7th Cir. 2004).
Specifically, Stone laid out two ways for a plaintiff to establish a prima facie case for unlawful
retaliation -- a direct method of proof and an indirect method. /d. Under the direct method of
proof, a plaintiff may “present direct evidence (evidence that establishes without resort to
inference from circumstantial evidence)” that the plaintiff engaged in protected activity and, as a
result, suffered an adverse employment action. /d. Direct evidence requires “an admission by
the decision-maker that his actions were based upon the prohibited animus.” Rogers v. City of

Chi., 320 F.3d 748, 753 (7th Cir. 2003).


evaluations, investigation reports, inter-offices memoranda on new hiring and promotions,
employee medical documents and law department memoranda. In his deposition, Ortiz admitted
that he was familiar with Metra’s confidentiality policies. Ortiz also has admitted that the
documents he removed from the EEO department were confidential and that the removal of those
document was a violation of Metra’s confidentiality policies. Later, Ortiz used these confidential
documents to create a powerpoint presentation to support his allegations of national origin
discrimination.

After discovering this information, Metra filed its counterclaim against Ortiz on July 17,
2003 alleging that he breached his fiduciary duty by copying, removing and disseminating
confidential documents. Thereafter, in December 2003, Metra held a fact-finding hearing to
determine whether Ortiz violated Metra’s rules of conduct. After the hearing, Metra determined
that Ortiz had violated its confidentiality policies and consequently discharged him effective
February 17, 2004.

DISCUSSION

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment may only be granted when
“there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment
as a matter of law.” FED. R. Civ, P. 56(c). In determining whether there is a genuine issue for
trial, the court is “entitled to limit its analysis of the facts on summary judgment to evidence that
is properly identified and supported in the parties’ [Local Rule 56.1] statements.” Bordelon vy.
Chicago Sch. Reform Bad. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). When a proposed

statement of fact is supported by the record evidence and not adequately rebutted, the court is


CONCLUSION

For all of the foregoing reasons, defendant Metra’s motion for summary judgment is
granted. The parties are ordered to appear for status on March 17, 2005 to discuss the issue of

damages.

It is so ordered.

LJ. C#

Wayne R. Andersen

United States District Judge

Dated: February Is, 2005

22


do so. Pagano subsequently informed Ortiz of the AAEC’s conclusions concerning his
complaint and also discussed with Ortiz the possibility of looking for a new position within
Metra with no reduction in pay or status; Ortiz indicated a willingness to consider a new position.
However, such a transfer was purely voluntary. Ortiz could stay in the EEO and Employee
Relations department if he wanted to do so. Indeed, Ortiz admitted that Pagano directed Ortiz to
work with the AAEC to find another job at Metra but that Ortiz was not being forced to move.

On September 13, 2000, Ortiz sent Pagano a memorandum discussing potential jobs in
which he was interested. Pagano forwarded Ortiz’ memorandum to the AAEC subcommittee
working on the matter. The context in which the subcommittee met with Ortiz was as follows:
Ortiz could stay where he was in the EEO department or he could move to another position that
would be a career opportunity. However, Metra was not going to create a job for him.

Ortiz met with Art Sauceda and Harry Thomas and identified areas outside of the EEO
department in which he was interested, including benefits, recruitment or becoming a hearing
officer, However, the areas that Ortiz identified involved positions for which openings did not
exist. At the time, there were four new open positions in the Training department. As part of
that meeting, Sauceda and Thomas discussed Ortiz’ interest in a training position and his prior
application for a training position in the EEO department. Specifically, Ortiz had previously
expressed an interest in, and had applied for, a position as an EEO training specialist in January
1999. At that time, Ortiz was one of five applicants selected for a second round of interviews for
the position. On January 8, 1999, Cary sent a memorandum to each of the five applicants
instructing them to prepare a presentation for the second interview. However, Ortiz did not

prepare a presentation and, as a result, was not considered further for the position.


disputed that Ortiz received the same salary, benefits, vacation time, holidays and worked the
same shift as a Training Specialist in the Workforce Education and Development department as
he had in his previous position in the EEO department. Thus, Ortiz’ transfer does not qualify as

an adverse employment action.

Moreover, Ortiz has failed to demonstrate that he was treated less favorably than other
similarly situated employees. Under this prong, Ortiz must show that he, “and not any otherwise
similarly situated employee who did not complain, was ... subjected to an adverse employment
action.” Stone, 281 F.3d at 642. An employee is similarly situated if he is “directly comparable
to [the plaintiff] in all material respects.” Rogers, 320 F.3d at 755. Ortiz fails to identify any
other Metra employee who filed an internal complaint, but nevertheless was not transferred to a
different position. There is no evidence in the record that any such similarly situated employee
exists. Accordingly, we conclude that Ortiz has not established a prima facie case under the
indirect method. Thus, Ortiz fails to state a claim for retaliation based on his transfer to Training

Specialist in October 2000.

Even if Ortiz were able to establish a prima facie case of retaliation, Metra has asserted a
legitimate, non-retaliatory reason for its action. Ortiz was transferred as a result of a mutual
agreement between Ortiz and Metra as a result of Ortiz’ dissatisfaction with his supervisor in the
EEO department. As the Seventh Circuit has stated, the court will “not sit as a super-personnel
department that reexamines an entity’s business decisions.” Debs v. Northeastern Ill. Univ., 153

F.3d 390, 396 (7th Cir. 1998).

15


In addition, Ortiz has failed to demonstrate that he was treated less favorably than other
similarly situated employees. Ortiz fails to identify any other Metra employee who filed an
internal complaint and was selected for the Employment Specialist position. There is no
evidence in the record that any such similarly situated employee exists. Accordingly, we
conclude that Ortiz has not presented a prima facie case under the indirect method. Thus, Ortiz
fails to state a claim for retaliation as a result of Metra not selecting him for the Employment

Specialist position.

Moreover, Metra has articulated a legitimate, non-retaliatory reason for its decision.
Metra asserts that the individual selected for the Employment Specialist position did a better job
interviewing and had more relevant experience than Ortiz. As stated above, we will “not sit as a
super-personnel department that reexamines an entity’s business decisions.” Debs, 153 F.3d at
396. There is nothing in the record showing that Metra is lying about its proffered explanation,
and Ortiz has not introduced any evidence demonstrating that Metra’s refusal to select him for
the Employment Specialist position was in retaliation for his filing an internal complaint of
discrimination. In sum, Ortiz has failed to establish a prima facie case of retaliation and cannot
demonstrate that Metra’s proffered reason for not selecting him for the Employment Specialist
position was a pretext for any retaliatory intent. Thus, we find that there are no issues of material

fact, and Metra is entitled to summary judgment on this claim.

3. Not Selecting Ortiz for the Senior Human Resource Generalist
Position

Ortiz argues that Metra retaliated against him for filing an EEOC charge in April 2001 by

not selecting him for the position of Senior Human Resource Generalist. However, it is not


Cary again met with Ortiz on April 10, 2000 about his performance. Cary explained that
although she had seen some effort on his part, Ortiz still needed to work on completing his
assignments in a timely fashion. Cary set new deadlines for the outstanding projects that Ortiz
was working on and extended his review period until May 31, 2000. On July 27, 2000, Cary
provided Ortiz with his semi-annual performance review in which she noted, among other
concerns, that there had been no significant change in Ortiz’ performance and that he should
continue working at completing his assignments in a thorough and timely manner. Cary also
identified a specific plan of action for Ortiz to improve his time management.

Prior to receiving his 2000 semi-annual performance review, Ortiz and other employees
submitted a memorandum to Executive Director Philip Pagano in January 2000, complaining
about alleged national origin discrimination. Pagano directed Metra’s Affirmative Action
Executive Committee (*AAEC”) to investigate the allegations of discrimination. The AAEC
investigated Ortiz’ allegations, including conducting interviews with Ortiz, Washington, Cary,
and Ortiz’ fellow EEO employee Joe Kransdorf. The AAEC completed its investigation of
Ortiz’ complaint and found no evidence of discrimination. In particular, the AAEC found that
there was no basis to Ortiz’ claim of discrimination regarding Gail Washington. The AAEC also
found that Countess Cary’s conduct was consistently justified. The AAEC evaluated the other
complaints as well and concluded that there was no evidence of discrimination. The AAEC’s
report to Director Pagano on its finding relating to the discrimination allegations was unanimous.

Thereafter, Director Pagano discussed with the AAEC whether Metra should offer to give
Ortiz another position at Metra given his lack of satisfaction working with Cary and Washington.

The AAEC supported offering Ortiz the opportunity to move to another position, if he chose to


BACKGROUND

The following undisputed facts are taken from Metra’s Local Rule 56.1 Statement of
Material Facts. Gilbert Ortiz Jr. is Hispanic and was hired by Metra on June 24, 1992 as an
Equal Employment Opportunity (“EEO”) Specialist. At the time Ortiz was hired, Gail
Washington as Director of EEO and Employee Relations was his supervisor. Effective
January 1, 1998, Ortiz’ position was reclassified and given the new title of Senior EEO
Specialist. Sometime in 1998, Washington was promoted to Department Head of Human
Resources, and Countess Cary was hired as Director of EEO and Employee Relations and
became Ortiz’ supervisor.

Ortiz had various performance problems as a Senior EEO Specialist, including among
other issues, insufficient knowledge about his job, timeliness, unprofessional behavior, failure to
fulfill certain duties and insubordination. As Ortiz’ supervisor, Cary was responsible for Ortiz”
performance reviews. In November 1999, Ortiz’ overall job performance was characterized as
“marginally meeting expectations,” and he received a rating of “below expectations” with regard
to the quality of his work As a result of this evaluation, Ortiz did not receive a pay increase.

In an effort to help Ortiz improve his performance, Cary provided him with a written
clarification of his annual review in which, among other things. she informed Ortiz that he had to
perform consistently for the next three months in order to bring his performance up to a level of
“meets expectations.” Cary met with Ortiz regarding his performance on January 28, 2000 and
again on February 25. 2000. As of the February 2000 meeting, Ortiz had met only two of the

four deadlines set in the January 28 meeting, and Cary offered to reassign the rest of Ortiz’ work.


It is undisputed that Ortiz engaged in statutorily protected activities by submitting an
internal complaint of discrimination in January 2000 and by filing a charge of discrimination
with the EEOC in April 2001. Thus, we must examine the record to determine whether Ortiz
was performing his job satisfactorily and/or qualified for any of the positions he sought, whether
he suffered any adverse employment action, and whether he was treated less favorably than
similarly situated individuals who did not engage in the protected conduct. We will address each

claim of retaliation individually.

1. October 2000 Transfer to Workforce Education and Development
Department

Ortiz first claims that Metra retaliated against him for submitting an internal complaint of
discrimination in January 2000 by transferring him from Senior EEO Specialist to Training
Specialist in October 2000. Metra asserts that Ortiz cannot establish a prima facie case of
retaliation for two reasons. Metra contends that Ortiz cannot establish that he was performing his
job satisfactorily or that he suffered an adverse employment action because he did not suffer any

loss in pay or benefits as a result of his transfer to the Training department.

The record shows that Ortiz was having difficulty performing his job. Indeed, Ortiz
admits that he was experiencing performance problems as a Senior EEO Specialist and that he
had received performance evaluations which stated that he was not meeting his job expectations.
However, in his affidavit without any citation to the record, Ortiz states that he, in fact, was
performing his job satisfactorily and that his job evaluations were always good. These assertions
without factual support are simply not enough to overcome Ortiz’ burden. “An employee's self-

serving statements about [his] ability ... are insufficient to contradict an employer's negative


In order to satisfy his burden of persuasion, Ortiz must show that Metra’s proffered
reasons is pretextual. To demonstrate pretext, a plaintiff must show that each of the defendant's
articulated reasons for its employment decision either “(1) had no basis in fact; (2) did not
actually motive [the employment decision]; (3) was insufficient to motivate [the employment
decision].” Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002). “A
pretext for discrimination means more than an unusual act; it means something worse than a
business error; pretext means deceit used to cover one’s tracks.” Grube v. Lau Indus., Inc., 257

F.3d 723, 730 (7th Cir. 2001).

There is nothing in the record showing that Metra is lying about its proffered explanation,
and Ortiz has not introduced a scintilla of evidence demonstrating that his transfer to a Training
Specialist in the Workforce Education and Development department was in retaliation for his
filing an internal complaint of discrimination. In sum, Ortiz has failed to establish a prima facie
case of retaliation and cannot demonstrate that Metra’s proffered reason for transferring him was
a pretext for any retaliatory intent. Thus, we find that there are no issues of material fact, and

Metra is entitled to summary judgment on this claim.

2. Not Selecting Ortiz for the Employment Specialist Position
Ortiz also argues that Metra retaliated against him for filing his January 2000 internal

complaint by not selecting him for the Employment Specialist position in April 2001. However,
it is not disputed that the position was a lower grade with a lower salary range than what Ortiz
was earning as a Training Specialist. Thus, Ortiz cannot establish that he suffered any adverse

employment action.