Rules of Evidence. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir, 1996).

The court views the record and all reasonable inferences drawn therefrom in the light most favorable

to the non-moving party. Fed. R. Civ. P. 56(c), see also, Perdomo v, Browner, 67 F.3d 140, 144 (7th

Cir.1995). “In the light most favorable” simply means that summary judgment is not appropriate

if the court must make “a choice of inferences.” Sce United States y. Dicbold, Inc., 369 U.S. 654,

655 (1962), see also, First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968);

Wolf v. Buss (America) Inc, 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable
inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986), Because this is Fedx’s motion for summary judgment, the court must view the record and
all inferences ina tight most favorable to Palasti. Ameritech Benefit Plan Comm. vy. Communication
Workers of Am., 220 F.3d 814, 821 (7th Cir. 2000). However, “[cJonclusory allegations alone
cannot defeat a motion for summary judgment.” Thomas v. Christ Hospital and Medical Center, No.
02-3373, — F.3d — (7th Cir., April 25, 2003) citing Lujan v. Nat’) Wildlife Federation, 497 U.S. 871,
888-89 (1990).

B. Palasti’s claim under the Equal Pay Act.

The Equal Pay Act, an amendment to the Fair Labor Standards Act, makes it illegal to pay
workers of one gender less than workers of the other gender “in return for doing the same work
unless the pay differential is justified by factors other than sex.” Fyfe v. City of Fort Wayne, 241
F.3d 597, 600 (7th Cir. 2001); Wollenburg v. Comtech Mfg. Co,, 201 F.3d 973, 975 (7th Cir, 2000).
In order to prevail under the Equal Pay Act, Palasti must establish: “(1) that different wages are paid

to employees of the opposite sex; (2) that the employees do equal work which requires equal skill,



“without the loss of benefits does not constitute an adverse employment action.” Stutler v. Ill Dep't

of Corr,, 263 F.3d 698, 702 (7th Cir. 2001); Place v. Abbott Lab., Inc., 215 F.3d 803, 810 (7th Cir.

2000); Hill vy. Am, Gen. Fin., Inc., 218 F.3d 639, 645 (7th Cir. 2000).

However, if the transfer could be considered a demotion it may be an adverse employment
action. Collins v. [Iinois, 830 F.2d 692, 704 (7th Cir. 1987). Ora transfer may be considered an
adverse employment action if the transfer would result in a constructive discharge. Williams, 85
F.3d at 274. These types of lateral transfers are actionable since they prevent the employee from
“using his skills in which he is trained and experienced, so that the skills are likely to atrophy and

his career is likely to be stunted.” Hermreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th Cir.

2002). Thus they create a future financial harm to the employee.

But in this case, Palasti docs not complain of this type of harmful transfer. Palasti complains
that FedEx failed to offer a transfer to her and then failed to agree to a voluntary hardship transfer.
The failure to offer a transfer simply maintains the status quo. The position in which Palasti was
employed was not in danger of being eliminated, Since Palasti was not denied new benefits, nor did
she lose her current benefits, salary, responsibilitics, or chances for further benefits, this failure to
offer a transfer cannot be considered an adverse employment action. Likewise, the refusal of a
voluntary hardship transfer simply maintains the status quo. Only Palasti’s dissatisfaction worsens
as she remains in place.

If these types of denials were to constitute adverse employment actions unacceptable under

Title VII, then the Federal Courts would become flooded with trivial complaints. As Judge Posner

warned in Williamson v. Bristol-Myers Squibb Co., “[o]therwise every trivial personnel action that



experience at FedEx, Palasti asserts that because she has experience and trained Damon Brown,
FedEx should pay her at least the amount that she was previously carning or morc.

TedEx points out several Naws with Palasti’s comparisons. Tirst, Palasti is not working the
same position she had when she left. Sccond, FedEx maintains a nondiscriminating policy for
rehiring former employees and Palasti failed to mect the exceptions required under the policy as
Christopher O’Brien and Steve Brown. Third, even with the comparisons to Christopher O’Brien
and Steve Brown, Palasti has failed to meet the prima Jacie burden under the Equal Pay Act. Fourth,
Palasti, Christopher O’Brien and Steve Brown are not similarly situated in all aspects. Finally, even
if Palasti was able to establish a case under the Equal Pay Act, FedEx has several affirmative
defenses.

The gravamen of Palasti’s Complaint is that she was not rehired at the same rate of pay as
when she voluntarily resigned from FedEx but similarly situated male employees were. Tlowever,
as FedEx points out, Palasti is not similarly situated with Christopher O’Brien and Steve Brown.
Palasti was rehired at a different location, in a different position that did not require Department of
Transportation or Hazardous Material certification, and she went from a full-time employec to a part-
time employee. The offer Palasti accepted required her to begin the new hire process, and was made
in accordance with the published policy of FedEx. Christopher O’Brien and Steve Brown, on the
other hand, qualified for exemptions to the policy. FedEx claims that there was a shortage of
available labor at the Hillside location where Christopher O’Brien and Steve Brown were stationed,

but not in Aurora where Palasti was rehired. Thus Palasti’s use of Christopher O’Brien and Steve

Brown as similarly situated employees is misplaced.



effort, and responsibility; and (3) that the employecs have similar working conditions.” Markel v.
Bad. of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 912 - 13 (7th Cir. 2002); Fallon v. State of
Illinois, 882 F.2d 1206, 1208-09 (7th Cir. 1989), She must show that the jobs compared are
substantially equal in “actual job performance and content--not job titles, classifications or
descriptions.” Stopka v. Alliance of Am, Insurers, 141 F.3d 681, 686 (7th Cir. 1998); EEOC v.
Mercy Hosp. and Med. Ctr., 709 F.2d 1195, 1197 (7th Cir. 1983), Since job duties “vary so widely,
the provisions of the Equal Pay Act must be applicd on a case-by-case basis.” Id. If Palasti can
establish the elements for discrimination under the Equal Pay Act, then the burden shifts to FedEx
to prove that the pay disparity is due to: “(i) a seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of production; or (iv) a differential based on any
other factor other than sex.” 29 U.S.C. § 206(d)(1).

Palasti attempts to meet her burden under the Equal Pay Act, in her Affidavit and
Memorandum in Opposition to Summary Judgment, by pointing to two other couriers. Pl. Mem.
Resp., at 2. According to Palasti’s Complaint, Christopher O’Brien and Steve Brown are couriers
who, as Plaintiff did, voluntarily left their positions with FedEx. Both were eventually rehired by
FedEx, but unlike Palasti, ihey were rehired at the same rate of pay they had when they left. And
although Palasti is domiciled at another FedEx location, she actually works at the same station as
Christopher O’Bricn and Steve Brown. ‘l'hus, according to Palasti, she is performing the same work

under the same conditions without the benefit of equal pay in violation of the law. Palasti also

altempts to compare herself with Damon Brown, who was hired at the same rate of pay but had no



196 F.3d 873, 876 (7th Cir. 1999). If the plaintiff establishes her prima facie case, then the burden
falls to the employer Defendant “to articulate some legitimate, nondiscriminatory reason” for its
actions. McDonnell Douglas Corp., 411 U.S, at 802. If the defendant is able to meet this burden,
the plaintiff must provide evidence that the defendant’s reasons are not “its truc reasons, but were
a pretext for discrimination.” Texas Dep't of Community Affairs v, Burdine, 450 U.S. 248, 253
(1981). See Fallon v. Illinois, 882 F.2d 1206, 1213 (7th Cir. 1989), However, if the Plaintiff cannot
meet her original burden of establishing a prima facic casc, “the employer is entitled to summary
judgment without the courts even reaching the two other steps of the McDonnell Douglas analysis.”
Oest, 240 F.3d at 612.

1. Palasti’s burden under Title VI

Palasti is in a protected class and is meeting FedEx’s legitimate business expectations. In
her Complaint and her Memorandum Opposing Summary Judgment, Palasti states three adverse
employment actions. The first is FedEx’s failure to officially transfer her along with the male
workers transfered in 1996, when the new station in Michigan City, Indiana opened. The second is
FedEx’s refusal of her request for a hardship transfer in October of 1997, after she accepted the
swing position at the Michigan City, Indiana facility. The third is FedEx’s refusal to credit seniority
for her previous employment at FedEx and thus reccive the same rate of pay as other new hires.

In order for a transfer to rise to the level of an adverse employment action there must be more
than a “minor change in working conditions.” Williams v. Bristol-Myers Squibb Co., 85 F.3d 270,

274 (7th Cir. 1996). A purely lateral transfer, which “does not involve a demotion in form or

substance, cannot rise to the level of a materially adverse employment action.” Id. A transfer



Minute Géder Form (06/97)

United States District Court, Northern District of Illinois

arles Sitting Judge if Other
or Magistrate Judge Charles Norgle than Assigned Judge
CASE NUMBER 02. C 1888 DATE 4/29/2003
CASE Palasti vs. lederal Express Corp.
TITLE
[In the following hox (a) indicate the party filing the motion, e.g... plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nuture
MOTION: of the motion heing presented.]

Defendant’s Motion for Summary Judgment

DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above,]
(2) Qo Brief in support of motion due ____
QB) Oo Answer brief to mation due. . Reply to answer brie! due,
(4) o Ruling/Hearing on setfor at
(5) i) Status hearing|held/continued to] [set for/re-set for] on set for at
(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at.
(7) Oo Trial{set for/re-set for] on __al
(8) o (Bench/Jury trial] [Hearing] held/continuedto ss at__
(9) oO This case is dismissed [with/without] prejudice and without costs|by/agrecment/pursuant to}
OOFRCP4(m) OLocal Rule 41.1 OFRCP41{a)(1) OO FRCP41(a)(2).
ao ff [Other docket entry] Before the court is Defendant’s Motion for Summary Judgment [12-1]. For
the reasons stated on the attached Order, Defcndant’s motion [12-1] is granted.
. Late a: /5. 2003 44 :
Lyte pte ——
al) [For further detail see order attached 10 the original minute order, ]

No notices required, advised in open court. ‘Docuiient

Number

IA

No notices required.
uber of maions

AY 9.2003

Notices muiled by judge’s staff.

Notiticd counsel by telephone. Mf

X | Docketing to mail notices,

Mail AQ 450 form.

Copy to judge/magistrate judge

courtroom
deputy’s
initials

Dute/time received in
“contrat Clerk's Office

mailing deputy initials



legitimate non-discriminatory reasons for any disparity in pay for Palasti and othcr male workers.

Simpson v. Borg-Warner Auto,, Inc., 196 F.3d 873, 878 (7th Cir, 1999). Nevertheless, the court

notes that Palasti offers no evidence refuting the reasons provided by FedEx as pre-textual. It is not
enough for Palasti to show that FedEx exercised poor business judgment or is erroneous in its
decision. Pitasi v. Gartner Group, Inc., 184 I'.3d 709, 718 (7th Cir, 1999), Palasti must show that
FedEx did not honestly believe the reasons it gave for rehiring Palasti at the lower paying position.
Id, Such “cvidence must be substantial — a mere scintilla will not suffice.” Tincher v. Wal-Mart
Stores, 118 F.3d 1125, 1129 (7th Cir, 1997).

Palasti cannot establish a prima facie case for disparate treatment under Title VI by pointing
to a failure to transfer or disparate pay. Thus the court grants Summary Judgement for FedEx for
Palasti’s claim under the Title VII.

D. Palasti’s claim under 42 U.S.C. § 1981 (a).

In her original complaint, Palasti in passing points to 42 U.S.C. § 1981(a) as a basis
for relicf in this matter. Claims for scxual discrimination are not cognizable under 42 U.S.C. §
1981 (a). See Friedel v. City of Madison, 832 F.2d 965, 967 n.1 (7th Cir. 1987); Runyon v. McCrary,
427 U.S. 160, 167 (1976); St. Louis v, Alverno College, 744 F.2d 1314, 1317 (7th Cir. 1984).
Furthermore, neither Palasti nor Fedi:x have treated this claim as separate from the Title VII claim,

so neither shall this court.

11



an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination
suit.” Williamson, 85 F.3d at 274.

To carty her burden for a failure to rehire, Palasti must prove by a preponderance of the
evidence that she is a member of a protected group, that she applied for and was qualified for the
position sought, that FedEx rejected Palasti for the position, and that edI:x hired or continued to
seek a male applicant, but whose qualifications were similar or less that those of the Palasti, Von
Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1474 (7th Cir. 1993). Palasti did not want her
old position back. She requested a similar position, at a different FedEx facility, in a different state.
When she was hired at the FedEx facility in Aurora, Illinois, she was treated the same as other new
male and female employecs.

Palasti has failed to show any male FedEx employee who is similarly situated. As stated
earlier, Christopher O’ Brien and Steve Brown are not proper comparitors. In order to be similarly

situated, employees must be similar “with respect to performance, qualifications, and conduct.”

Radue y. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). Employees are only similarly
situated if they deal with the same supervisor, are subject to the same standards, and engage in
similar conduct. Id. at 617-18. Palasti was hired at the FedEx facility in Aurora, Illinois while
Christopher O’Brien and Steve Brown were hired al the FedEx facility in Hillside, Illinois. The fact
that Palasti later transferred to the Hillside location does not change these facts nor the analysis.
2. FedEx’'s legitimate non-discriminatory reasons
Because Palasti is unable to meet her burden of proof of establishing a prima facic case under

Title VII, the court need not discuss the second prong of the McDonnell Douglas test, FedEx’s

10



Palasti’s use of Damon Brown for comparison is equally flawed. The offer FedEx made to
Palasti stated clearly that she would be considered a new hire and she would not receive any credit
for her service to FedEx from her previous employment. The fact that she is being paid the same
amountas a fellow male employee with roughly the same amount of “considered” experience cannot
be the basis for a suit under the Equal Pay Act. Since Palasti cannot look to Christopher O’Brien,
Steve Brown and Damon Brown as similarly situated, she is unable to establish a prima facie case
under the Equal Pay Act. Thus the court grants Summary Judgement for FedEx for Palasti’s claim
under the Equal Pay Act.
C, Palasti's claim under Title VIL

Title VII prohibits an employer to treat employces less favorably with respect to conditions
of employment because of their gender. 42 U.S.C. § 2000e-2(a)(1). In order to prevail ona Title VII
claim based upon disparate treatment, “a plaintiff must establish that she is the victim of intentional

discrimination.” Oest v. Illinois Dep't of Corrections, 240 I'.3d 605, 611 (7th Cir. 2001); Jackson

y.E.B. Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999). Since employers rarely “offer smoking gun
remarks indicating intentional discrimination,” the Supreme Court has developed a burden-shifling

test, first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Robin v.

ESPO Engineering Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).
A Title VIT plaintiff must establish a prima facie case by showing: “(1) she was a member
of a protected class; (2) she was meeting her employer's legitimate business expectations; (3) she

suffered an adverse employment action; and (4) the employer treated similarly situated employees

outside the class more favorably.” Oest, 240 F.3d at 612, See Simpson vy. Borg-Warner Auto., Inc.,



told that she could follow the new hire process. ‘The new hire process begins with an applicant
attending an open house to fill out applications. Palasti followed the new hire process and was
offered a part-time courier position at the FedEx Aurora facility, The offer was made orally and by
a letter from Sabicna Foster, the Operations Manager for FedEx in the Chicago Metro District. As
stated in the letter, Palasti was to be paid $11.91 per hour in her new position, eleven cents less than
she was previously paid. Palasti accepted the offer.

In February of 1999, Palasti transferred to the FedEx facility in Hillside, Illinois where she
worked both full-time and part-time. Palasti has worked various routes and has taken an extended
leave of absence. Palasti works for FedEx to this day.

On March 14, 2002, Palasti filed this lawsuit claiming that FedEx treated her differently from
similarly situated males by failing to transfer her and then failing to re-hire her at her former hourly
rate.

TI. DISCUSSION
A. Standards for Summary Judgment.

Summary judgment is permissible when “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). The
nonmoving party cannot rest on the pleadings alone, but must identity specific facts, sce Cornfield

y. Consolidated High Sch. Dist. No..230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than

a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v, ITT
Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999), In deciding a motion for summary

judgment, the court can only consider evidence that would be admissible at trial under the Federal



In doing so, FedEx offered transfer letters to couriers whose routes would be moving to the new
location. It is unclear whether Palasti ever received a transfer letter or received one in June of 1997.'

On June 8, 1997, FedEx tendered an offer letter to Palasti, offering her a swing driver
position at the Michigan City location. A swing driver is a couricr without a specific route and is
used to fill in wherever there is a staffing shortage. Additionally, to work as a swing driver, a courier
must obtain both a Department of ‘I ransportation and Hazardous Material certification. The offer
was subject to FedEx’s standard twelve-month non-transfer rule, Palasti signed the letter and
accepted the new position.

In October, 1997, Palasti requested a hardship transfer back to the station in South Holland,
Illinois, That request, while initially approved by her supervisor, was ultimately denicd later that
month. After Palasti’s request was denied, she applied for three other FedEx positions closer to her
home, However, she was not considered for these positions because she was not eligible to transfer
due to the twelve-month non-transfer clause in the Michigan City transfer letter. On June 19,1998,
Palasti voluntarily resigned from her position as a full-time Swing Driver. At the time she resigned,
Palasti was paid $12.02 per hour.

In August, 1998, Palasti began to inquire about returning to work at FedEx, According
to FexEx policy 4-30 (Def.’s Mot. For Summ. J,, Ex. G), cmployces who resign from their position
lose the senority they have accumulated, unless reinstated by the authorization of the Vice President

of Personnel or the Chicf Personnel Officer. Palasti was unable to obtain such authorization and was

' All disputed material facts are taken in a light most favorable to Palasti. However, as
stated later in this opinion, whether or not Palasti received the letter is not a material fact.

2



x
IN THE UNITED STATES DISTRICT COURT POCKETED

FOR THE NORTHERN DISTRICT OF ILLINOIS MAY 4 1 2002
EASTERN DIVISION 100:
KAREN L. PALASTI, )
) No. 02 C 1888
Plaintiff, —)
) HONORABLE CHARLES R. NORGLE
vs. )
)
FEDERAL EXPRESS CORPORATION, _ )
)
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Before the court is Defendant’s Motion for Summary Judgment pursuant to Federa] Rule of

Civil Procedure 56. For the following reasons, Defendant's motion is granted.
I. BACKGROUND

On March 15, 2002, Plaintiff, Karen L. Palasti (“PalastiTM), filed suit against her present
employer, Federal Express Corporation (“FedEx”), claiming violations of both the Equal Pay Act,
29 U.S.C. § 206(d)(1), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 20006 et seg., 42
U.S.C. § 1981(a). Specifically, Palasti complains thal FedEx paid her less than similarly situated
male employees.

In November of 1994, FedEx hired Palasti as a seasonal courier to work at its South Holland,
Illinois station. In October of 1995, FedEx hired Palasti as a regular part-time courier with a route
at the South Holland station. In October of 1996, Palasti began to work at a new FedEx station
located in Michigan City, Indiana, in order to take over the route of a driver who had resigned.
Palasti was never officially transferred from the South Holland location to the Michigan City

location. During this time FedEx began to move more of its routes to the new Michigan City facility.



Il. CONCLUSION

l’or the foregoing reasons, Fedlix’s Motion for Summary Judgment is granted.

IT IS SO ORDERED. eNTER Ze Ve Ze eg

CHARLES RONALD NORGLE, SR. Ji

- United States District Court
fjf-o?
DATED:

12