started with similarly unsatisfactory performance evaluations,
over the course of three years Yehling’s evaluation score
steadily improved from 2.26 to 3.32 while Richardson’s went in
the opposite direction: from 2.5 to 1.72 (C. St. 919131, 35, 93;
R. Ex. I-K). At the relevant moment of comparison--just before
Richardson’s termination--Yehling was outperforming Richardson
dramatically (Karazanos, 948 F.2d at 336).°

Richardson fares no better vis-a-vis Marasovich. First, the
two had different supervisors: Marasovich was supervised not by
McCollum but by Richardson herself (C. St. 9127). Moreover, the
conduct of the two employees does not match up at all. While
Richardson exhibited a whole slew of problems documented in her
performance evaluations, she has not produced any evidence about
how Marasovich fared on any of his evaluations. Instead her only
evidence about Marasovich’s conduct indicates that any brief
performance problems Marasovich may have exhibited in the past
were quickly addressed by transferring him to a more suitable

environment than the call center (C. St. 4484-86, 129).°

8 Nor does Richardson’s otherwise unsupported affidavit
assertion that Yehling missed deadlines when he managed a project
monitored by a committee on which Richardson sat add anything to
the relevant mix. It is CTA’s perception of Yehling’s conduct
that controls a determination that he was or was not meeting
CTA’s expectations--not the views of other employees (or, a
fortiori, of Richardson herself) (R. St. 9181-82; see Koski v.
Standex Int’l Corp., 307 F.3d 672, 677 (7th Cir. 2002)).

% Ironically, when Marasovich was having performance
difficulties McCollum considered terminating his employment, but

13


because of her love for customer service (C. St. 475).
McCollum was more consistent in the messages she sent to

Richardson. Indeed Richardson herself thought that she could

never please McCollum (C. St. 166; R. Dep. 118):

I didn’t receive anything from-.her but negativity.
Everything was always negative. | Something was always
wrong. Something didn’t get @ to her expectations.

Richardson managed more by emotion than by reasoned judgment (C.
St. 951). On another occasion she informed Richardson that she
was not meeting the deadlines that were required of her (C. St.
9149). Yet when McCollum was out of the office she entrusted
Richardson with handling any matters that might crop up in her
absence (R. St. 4450-51).
Beginning in 1999 CTA implemented a new model for employee
evaluations (R. St. 94). That system used a five-point scale to
assess each employee’s performance annually (R. Ex. C):
5=Outstanding Individual is a truly exceptional
performance [sic], substantially
exceeding requirements in all major
responsibilities and/goals.

4=Exceeds Expectations Individual consistently meets
performance standards and exceeds
requirements in many aspects of the job.

3=Meets Expectations Individual has performed a complete and
fully satisfactory job and has met major
responsibilities and/or goals in a

competent manner.

2=Needs Improvement Individual meets minimal performance
standards, but has room for


Conclusion
In the absence of any evidence probative of race-based or
sex-based discrimination, no reasonable jury could rule in
Richardson’s favor. Because there is thus no genuine issue of
Material fact, CTA is entitled to a judgment as a matter of law.

Its Rule 56 motion is therefore granted, and this action is

CM. ODS

dismissed.”

Milton I. Shadur
Senior United States District Judge

Date: August 4, 2004

12 Under the circumstances there is no need to address the
particulars of CTA’s July 13, 2004 Motion To Strike Portions of
Plaintiff’s Documents in Response to Defendant’s Motion for
Summary Judgment. Because this opinion has taken account of all
of Richardson’s submissions that conform to the requirements of
Rule 56(e) and LR 56.1 and has found them wanting in substantive
terms, that motion can be--and is--denied as moot.

17


Richardson’s final performance evaluation (completed by
McCollum) includes many scathing remarks about Richardson’s
performance and is the most comprehensive articulation of all
McCollum’s concerns (C. St. 493; R. Ex. F). McCollum said there
that as a manager Richardson was a “major source of tension
within the work group.” She observed that Richardson had
difficulty evaluating various situations and often made decisions
based on emotion instead of facts. ‘she concluded that as a
result of those managerial shortcomings many members of
Richardson's staff were hesitant to discuss issues with her--a
problem that increased the workload of other managers who were
left to deal with the fallout. McCollum went on to comment that
Richardson did not herself respond well to feedback or adequately
accept responsibility for the problems in her department.
Generally McCollum concluded that Richardson did “not exhibit the
required skill set necessary to be an effective manager” and did
“not consistently display professionalism nor model behavior that
is expected of a manager.”* Little wonder, then, that McCollum’ s
overall evaluation found Richardson to fall far short of even the
marginal “meets the minimal performance standards” benchmark.

Much of that criticism focuses on Richardson’s interpersonal

stage it cannot enter into the analysis.

5 Those comments, though representative, are only a part of
the criticism that McCollum included in Richardson’s 2001

evaluation (R. Ex. F).



a right to sue letter, Richardson filed this action (C. St. 19).
Richardson’s Proof-~or Absence of Proof

In the absence of anything even remotely resembling the
proverbial “smoking gun,” Richardson resorts to the familiar
burden-shifting model originally outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) in her attempt to avoid
summary judgment.” That approach first requires Richardson to
create a prima facie case by coming forward with evidence
sufficient for a reasonable jury to infer discrimination (Johnson
yv. Nordstrom, Inc., 260 F.3d 727, 731 (7th Cir. 2001). If
Richardson can succeed in that task as to discrimination based on
either her race or her sex, the McDonnell Douglas model then
requires CTA to articulate a legitimate nondiscriminatory reason
for its conduct (id. at 731-32). If CTA does so, Richardson must
adduce enough evidence for a reasonable jury to conclude that
CTA’s asserted justification was merely a pretext for
discrimination--that it was actually motivated (at least in part)
by animus against Richardson as an African-American or as a woman
er both (id. at 732).

At the prima facie stage, one common formulation requires

Richardson to raise an inference of discrimination by showing

2 Because both parties properly use the same analysis to
evaluate CTA’s liability under both Title VII and Section 1981,
this opinion likewise does not distinguish between the two
statutes in addressing Richardson’s discrimination claims (see
Cerutti_ v. BASF Corp., 349 F.3d 1055, 1060-61 (7th Cir. 2003)).

6


improvements. Also applies to new
employees who may need additional
training or experience.

1=Unsatisfactory Individual exhibits unsatisfactory
performance. Substantial improvement is
required to continue in position.

Richardson received three evaluations under the new system.
Executive Vice President Jack Hartman (“Hartman”) rated her work
as 2.5 for 1999, and Winston assessed her work as 2.3 for 2000
(Cc. St. 4931, 35). Richardson’s final performance evaluation was
completed by McCollum, who rated Richardson’s work as 1.72 for
the period from August to December 2001 (R. Resp. 9193; R. Ex. F7
Cc. R. Mem. 2 n.2)

On March 8, 2002--based on a recommendation from McCollum--
Richardson was suspended from active duty and was immediately
escorted off the premises (C. St. 9100; C. Resp. 975). When
Richardson returned the following week she received a “Notice of
Discharge” (signed by Winston) that cited several reasons for
that termination decision: Richardson’s failure to obey rules;
her abuse of company time and poor work performance; and her
general failure to use her best judgment when handling situations
that had arisen throughout the course of her employment (C. St.
qii2, 124).

After she was thus fired, Richardson filed a charge with

EEOC, claiming that her suspension and termination constituted

race-based and sex-based discrimination. After EEOC then issued



discrimination (see Carson v. Bethlehem Steel Corp., 82 F.3d 157,

158-59 (7th Cir. 1986) (per curiam)). In this instance she simply
has not done so.

True enough, Richardson is both African-American and a woman
(R. St. 71). And of course CTA’s conduct in suspending and
eventually terminating her employment were adverse employment
actions (C. Mem. 11). But not even a shred of evidence links
those elements with a potential finding of discrimination, even
with the benefit of the most favorable inferences.

In her effort to support such an inference, Richardson first
asserts that she was meeting CTA’s legitimate expectations. But
as the ensuing discussion demonstrates, CTA proffers an avalanche
of evidence that torpedoes any such contention.

Although Winston ultimately authorized Richardson’s
termination, McCollum was the CTA representative who had directly
supervised her on a day-to-day basis before that dismissal (C.
St. 924). It is therefore McCollum’s evaluations and impressions
and her potential (or actual) discriminatory biases that are most
relevant in determining whether Richardson can raise an inference
of discrimination (Schreiner v. Caterpillar, Inc., 250 F.3d 1096,
1100 (7th Cir. 2001)).4

4 While McCollum’s own status as an African-American woman

does not of course foreclose Richardson’s discrimination claims,
it is relevant evidence that a jury could use in making a

liability determination (cf. Herrnreiter v. Chicago Hous. Auth.,
315 F.3d 742, 747 (7th Cir. 2002)). But at the summary judgment

8



.

‘Minute Order Fort (06/97)

0

United States District Court, Northern District of Iinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 03 C 1370 DATE 8/4/2004
CASE Sharon D. Richardson vs. Chicago Transit Authority
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
@) oO Answer brief to motion due. . Reply to answer brief due. .
(4) ao Ruling/Hearing on set for at
(5) Q Status hearing[held/continued to) [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(0) Oo Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (Local Rule 41.1 OFRCP41(aX(1) C1 FRCP41(a\2).
ao w@ [Other docket entry] | Enter Memorandum Opinion and Order. In the absence of any evidence
probative of race-bases or sex-based discrimination, no reasonable jury could rule in Richardson’s favor.
Because there is thus no genuine issue of material fact, CTA is entitled to a judgment as a matter of law.
Its Rule 56 motion is therefore granted (14-1), and this action is dismissed. Defendant’s motion to strike
is denied as moot.(24-1)
(il) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

9

SN

NOD 19

iisia “sn

a

BMY S- SAV 4002

Lcd -U Datetdanb received in
central Clerk’s Office



expectations (R. St. 4420-27; C. Resp. 720). But even apart from
the fact that a current evaluation rather than an earlier one
tells whether Richardson was performing up to CTA’s expectations

at the time of her dismissal (Karazanos v. Navistar Int’1 Transp.

Corp., 948 F.2d 332, 336 (7th Cir. 1991)), it will be remembered
that even for the year 2000 the overall 2.3 evaluation given her
by the selfsame Winston was that she did not “meet expecta-
tions”--far below the “3” level that would denote that level of
performance. Clearly Richardson’s evidence does not provide a
basis for a reasonable jury to conclude that she was meeting
CTA’s legitimate business expectations.

Despite her having failed on that score, Richardson might
still be able to dodge summary judgment by showing that she was
disciplined more harshly than other similarly situated employees
who were not African-American or women--even if a reasonable jury
viewed her performance (like theirs) as unsatisfactory (Flores v.
Preferred Tech. Group, 182 F.3d 512, 515 (7th Cir. 1999)). But
here Richardson cannot meet even that lesser requirement, because
each of her two attempts to compare herself to a white male--
Manager of Budget Oversight Byron Yehling (“Yehling”) and
Supervisor of Customer Service Tom Marasovich (“Marasovich”) --is

wholly unsuccessful (R. St. 980; C. St. 4127).°

6 CTA also discusses Charles Lindenmuth (“Lindenmuth”) and
Daniel Schurz (“Schurz”) as potentially similarly situated to
Richardson (C. St. 9131-34, 138-40; C. Mem 11-13). But because

11


skills and management techniques, rather than on particularized
instances of flawed performance. But an employee’s competence is
not measured solely by how well she performs specific articulated
duties of her job (see Oates v. Discovery Zone, 116 F.3d 1161,
1171 (7th Cir. 1997)). And that is even more true of a manager,
as to whom those more intangible qualities are the key to what
makes managers excel or fail to excel in their roles.

In response Richardson contends that despite McCollum’s
evaluation she has still adduced enough evidence for a reasonable
jury to conclude that she was meeting CTA’s legitimate business
expectations (R. Mem. 10-12). That is simply not so.

First, Richardson’s own testimony that she was meeting CTA’s
legitimate business expectations cannot itself raise a genuine
issue of material fact on that score--especially in the face of
CTA’s voluminous evidence to the contrary (Mills _v. Fi d
Say. & Loan Ass'n of Belvidere, 83 F.3d 833, 843-44 (7th Cir.
1996)). To hold otherwise would essentially eviscerate the
legitimate-expectations prong of the prima facie case (Qates, 116
F.3d at 1172).

Equally flimsy is the documentary evidence that Richardson
believes contradicts CTA’s evidence. Richardson relies primarily
on an evaluation by Winston, which led to her temporary promotion
to Acting General Manager of Customer Relations in 2000, to

contend that she was meeting CTA’s legitimate business

10



that (1) she is a member of a protected class, (2) she was
performing her job reasonably according to CTA’s legitimate
expectations, (3) she suffered an adverse employment action and
(4) at least one similarly situated employee not in her protected
class was treated more favorably (see, e.g., Wyninger v. New
Venture Gear, Inc., 361 F.3d 965, 978 (7th Cir. 2004); Haywood v.
Lucent Tech., Inc., 323 F.3d 524, 531 (7th Cir. 2003)). But that

formulation is not carved in stone (Leffel v. Valley Fin, Servs.,

113 F.3d 787, 793 (7th Cir. 1997); see also Marla Swartz, “The
Replacement Dilemma: An Argument for Eliminating a Non-Class
Replacement Requirement in the Prima Facie Stage of Title VII
Individual Disparate Treatment Discrimination Claims,” 101 Mich.
L. Rev. 1338, 1352-57, 1360 (2003) (hereafter “Swartz”).> Because
the sole purpose of the first McDonnell Douglas step is to create
an inference of discrimination (Leffel, 113 F.3d at 792), the
earlier-stated four-factor test is only one way to reach that
goal. Instead Richardson could clear that hurdle by producing

any evidence from which a reasonable jury could logically infer

3 This opinion’s references to the Swartz student note are

scarcely accidental: Its author is this Court’s extraordinarily
able law clerk, who is fast approaching the end of her clerkship
term. In this case, as always, Ms. Swartz produced a draft
opinion reflecting thoughtful analysis and comprehensive
research--invaluable input toward this final product. If any
errors have nonetheless found their way into this opinion, they
are to be placed at this Court’s doorstep and not Ms. Swartz’s,
for this Court (again as always) has left its mark on the review
and revision of each sentence, as well as having read each of the
cited cases.


Facts

Richardson was hired in October 1997 as CTA’s Manager of
Customer Relations (C. St. 913). Her chief responsibility was to
manage the day-to-day operations of CTA’s call center, including
supervising its staff (R. St. 92; R. Ex. A).

In May 2000 Richardson took over as Acting General Manager
of Customer Relations (R. St. 413), reporting directly to CTA’s
Vice President of Transit Operations Richard Winston (“Winston”)
{C, St. G15). Richardson held that job for a little over a year
until CTA hired Tamara McCollum (“McCollum”) in August 2001 as
the permanent General Manager (C. St. 9418). At that point
Richardson returned to her previous post as Manager of Customer
Relations (C. St. 20).

As McCollum began her tenure with CTA, Richardson helped to
transition her new supervisor into the position she herself had
been filling (R. St. 9145). But despite their initially cordial
interaction, over the course of the next several months McCollum
and Richardson developed a volatile working relationship that
vacillated from harmony to acrimony.

For example, Richardson openly told McCollum that she
believed McCollum was micromanaging the department and that her
Management style was ineffective (C. St. 4168-70). But at other
times Richardson also said that she appreciated McCollum’s

openness and honesty and that she enjoyed working with McCollum



Along another line (although never quite fully explained),
Richardson appears to argue that it was incumbent on CTA to
discipline her according to its Corrective Action Guidelines
(“Guidelines”) and that its failure to do so raises enough of an
inference of discrimination to sustain her prima facie case (R.
Aff. 14; R. Ex. B). With Richardson having failed to develop
that contention in any meaningful way, it is not this Court’s
responsibility to do so for her. It has nonetheless considered
the matter and finds the argument empty as well (among numerous
other reasons, because of the total absence of any comparable
employees who received disparate treatment).

In sum, Richardson is plainly unable to create her prima
facie case via the conventional four-factor test. Perhaps
recognizing (though not admitting) that, she also ventures on a
few different tacks in her attempt to raise an inference of
discrimination.

Richardson first contends that at least as to her sex
discrimination claim, she need not satisfy the similarly-situated
aspect of her case because she was replaced by a man

(parenthetically, also African-American) (R. Mem. 10). That is

Richardson lobbied for the more lenient transfer solution (C. St.
181-82). Even if Marasovich and Richardson were to be viewed as
similarly situated, then, only Richardson’s intervention on his
behalf spared Marasovich from exactly the same disciplinary
action that Richardson received--McCollum’s handling of the two
employees would have been entirely consistent.

14


case is not about whether McCollum was a good manager or a
terrible manager, or whether she was helpful or hostile to her
subordinates, or even whether she liked or didn’t like
Richardson. What Richardson appears to have forgotten (or more
likely would have this Court forget) is that this case is only
about whether CTA (as evidenced by the actions of McCollum or any
other CTA actor) discriminated against Richardson on account of
her race or sex when it made tHe “dedision to terminate her.+
Because Richardson has fallen at the threshold hurdle of the
prima facie case, there is no occasion to continue with the
McDonnell Douglas burden-shifting analysis (Cerutti, 349 F.3d at
1061). Nonetheless it is worth noting briefly that CTA has
proffered a patently legitimate reason for its decision to
terminate Richardson--her abundant shortcomings in the
performance of her job duties, as best evidenced by her
deteriorating performance evaluations (C. St. 993; C. Mem. 14).
And Richardson has not even hinted at why or how that reason is
unworthy of credence or at how CTA’s decision was motivated by
discrimination (Nawrot v. CPC Int’l, 277 F.3d 896, 905-06 (7%

Cir. 2002)).

41 Arguments such as those advanced by Richardson account
for the regular repetition of the now-trite maxim that courts do
not sit as superpersonnel departments to adjudicate the intrinsic
fairness or wisdom of nondiscriminatory employment decisions
(Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)).

16



|
reasonable jury to conclude that she ought to prevail on either
ground of her Title VII claim or on her Section 1981 claim.
Hence CTA’s Rule 56 motion is granted, and this action is
dismissed.
Rul tan ds

Every Rule 56 movant bears the burden of establishing the
absence of any genuine issue of material fact (Celotex Corp. v.
Catrett, (477 U.S. 317, 322-23 (1986)). For that purpose courts
consider the evidentiary record in the light most favorable to
nonmovants and draw all reasonable inferences in their favor
(Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.
2002)). But to avoid summary judgment a nonmovant “must produce
more than a scintilla of evidence to support his position” that a
genuine issue of material fact exists (Pugh v. City of Attica,
259 F.3d 619, 625 (7th Cir. 2001)) and “must set forth specific
facts that demonstrate a genuine issue of triable fact” (id.).
Ultimately summary judgment is warranted only if a reasonable
jury could not return a verdict for the nonmovant (Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is
therefore a summary of the facts viewed in the light most
favorable to nonmovant Richardson--but within the limitations
created by the extent of her compliance (or noncompliance) with

the strictures of LR 56.1.



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

SHARON D. RICHARDSON,

Plaintiff, )
ve No. 03 ¢ 1370
CHICAGO TRANSIT AUTHORITY, } DOCKETEL
Defendant. ) AUG = 9 2004

MEMORANDUM _ OPINION AND ORDER

After she was terminated from her job as the Chicago Transit
Authority (“CTA”) Manager of Customer Relations, Sharon
Richardson (“Richardson”) sued CTA, alleging that it had
discriminated against her on account of her race and sex in
violation of both Title VII of the Civil Rights Act (“Title VII,”
42 U.S.C. §2000e) and 42 U.S.C. §1981 (“Section 1981"). CTA
moved for summary judgment pursuant to Fed. R. Civ. P. (“Rule”)
56, and both parties have complied with this District Court’s LR
56.1.1

Even with the record viewed in her favor as Rule 56

requires, Richardson has not come forward with enough facts for a

1 LR 56.1 requires parties to submit evidentiary

statements, and responses to such statements, to highlight which
facts are disputed and which facts are agreed upon. This opinion
cites to CTA’s LR 56.1 statement as “C. St. I--,” to Richardson's
LR 56.1 statement as “R. St. @--” and to their respective
responses as “C. Resp. {--” and “R. Resp. 9--.” Where either
party's LR 56.1 statement is undisputed by the opponent, the
opinion includes only a citation to the original statement.
Memoranda and documents submitted by the parties are also
identified by those same “C.” and “R.” designations.


Two individuals are similarly situated in the discriminatory
discipline context if both “dealt with the same supervisor, were
subject to the same workplace rules, and engaged in similar
conduct” (Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 940 (7th
Cir. 2003)). It takes only a brief side-by-side look to see that
Richardson strikes out as to each of the two asserted
comparables,

First, as to Yehling, while Richardson’s supervisor was
McCollum, Yehling reported to Dennis Milicevic (C. St. 4135).
That alone could well scratch Yehling off of the similarly-
situated list (Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618
(7th Cir. 2000)). But even if this Court were to consider the
more attenuated “connection” of Richardson and Yehling based
on each of them having been evaluated by Winston at some point
(Richardson in 2000 and Yehling in 1999) (C. St. 935; R. Ex. I),’
Richardson’s effort at comparison is further doomed by the
absence of any indication that Yehling’s performance was anywhere

near as consistently poor as Richardson’s. While they may have

Richardson does not mention Lindenmuth or Schurz in her Response
(R. Mem. 7), she has forfeited any argument as to whether either
of them was sufficiently similarly situated to her to warrant
comparison or as to whether, upon comparison, either was actually
treated more favorably than she was (cf. e.g., Cooper v. Lane,
969 F.2d 368, 371 (7th Cir. 1992)).

7 In that respect the far lesser probative value of
evaluations substantially earlier than the time of termination,
already noted in another context, again bears mention.

12


just plain wrong. While the fact of such replacement could
potentially help raise an inference of sex discrimination under
some circumstances, it is “neither a sufficient nor a necessary
condition” to Richardson’s prima facie case and--absent other
probative evidence--does not really advance the ball toward her
goal (C. St. 4125; C , 82 F.3d at 159; Swartz, 1338 Mich. L.
Rev. at 1346-47),

Lastly, Richardson asserts that CTA’s decision to escort her
off of the CTA premises immediately following her suspension is
evidence of sex discrimination sufficient to maintain her prima
facie case (R. Resp. 9107; C. St. 4112). But it is a real non
sequitur to suggest that such conduct on CTA’s part (at least
without meaningful further linkage) plausibly supports
Richardson’s discrimination claim.

All in all, Richardson’s effort to ascribe everything of an
unfavorable nature that she has endured to the fact that she is
African-American or a woman or both is a classic demonstration of
Alexander Pope’s famous aphorism:!°

All seems infected that th’ infected spy,
As all looks yellow to the jaundic’d eye.

There is no question that Richardson and McCollum had a highly
contentious working relationship characterized by negative

interactions and almost daily personality conflicts. But this

10 Essay on Criticism, pt. 2, line 358.
15