Gregory v. Trans-Fleet Enterprises, (S.D.Ind. 2000)

Full title: JOHN R. GREGORY, Plaintiff, v. TRANS-FLEET ENTERPRISES, INC, PROFESSIONAL…

Court: United States District Court, S.D. Indiana, Indianapolis Division

Date published: Apr 25, 2000

Cause No. IP97-1612-C-T/G (S.D. Ind. Apr. 25, 2000)

Opinion

Cause No. IP97-1612-C-T/G

April 25, 2000

ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT AND SETTING CONFERENCE CALL

JOHN D. TINDER, Judge

This matter comes before the court on the Motion for Summary Judgment, filed by Defendants Trans Fleet Enterprises, Inc. ("TFE"), and Professional Distribution Services, Inc. ("PDS"). TFE and PDS (collectively, "TFE/PDS") argue that Plaintiff John R. Gregory's claim that he was constructively discharged in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., fails as a matter of law. After considering the motion and the submissions of the parties, the court finds as follows.

I. Facts ¹

1 On summary judgment, all facts are considered in the light most favorable to the non-movant, and all inferences are resolved in the non-movant's favor. See Simpson v. Borg-Warner Automotive, 196 F.3d 873, 876 (7th Cir. 1999); Fed.R.Civ.P. 56(c).

TFE is headquartered in Augusta, Georgia, and employs over-the-road truck drivers at various locations throughout the United States, leasing them to other entities. (Gregory Dep. at 28; Morgan Hall Dep. at 6.) A client contracts with TFE to provide TFE employees to staff positions for the client. While the client directs the employees' work activities (by setting productivity standards and directing what and how to distribute), TFE is responsible for the pay benefits, employment liability and unionization issues. In other words, TFE is responsible for "provid[ing] a happy, productive, and union-free work force" for its clients. (Morgan Hall Dep. at 106; Cobb Dep. Vol. I at 64-67, 104-07.)

PDS is a wholly-owned subsidiary of TFE and is also headquartered in Augusta, Georgia. PDS leases and manages employees for distributing goods produced by various manufacturers. PDS does not own the distribution centers, but rather staffs and manages the centers. (Gregory Dep. at 18, 28, 32-34, 36, 42; Cobb Dep. Vol. I at 103.) The benefits to PDS clients are the same as those of TFE.

Just before Mr. Gregory joined PDS in December of 1993, TFE/PDS was structured as follows: Morgan Hall was the President/CEO of TFE/PDS. Steve Cobb and Nancy Hall (Mr. Hall's wife) were both Executive Vice Presidents of TFE/PDS. (Nancy Hall Dep. at 23-24, 31.) Mr. Cobb handled the day-to-day operations for TFE and "start-ups" for PDS, which at that time, was in its infancy and had only two existing facilities. (Cobb Dep. Vol. I at 63, 68-70, 74, 76, 79-80.) The TFE managers reported to Mr. Cobb with operations issues and to the corporate human resources department (and, by extension, Ms. Hall) with human resource issues. Mr. Hall and Ms. Hall (collectively, "the Halls") handled all other aspects of the companies, including corporate human resources, worker's compensation, benefits, and administration. (Nancy Hall Dep. at 23-24.)

In Fall 1993, PDS developed a relationship with two third-party logistic companies, Caterpillar Logistics Services, Inc. ("CLS") and UPS Worldwide Logistics, Inc. ("UPS-WWL"). (Cobb Dep. Vol. I at 99-102.) These entities were hired by manufacturers like Caterpillar and later, Microsoft, to distribute their products. CLS and UPS-WWL, in turn, contracted with PDS to provide the workforce, to train the workforce, and to keep the workforce happy. CLS or UPS-WWL set production standards and made operations plans while PDS managed the workforce and handled the human resource functions. ( Id. at 103-05; Nancy Hall Dep. at 90-91.)

In 1993, PDS opened and staffed a distribution facility (known as a "start-up") for CLS in Allentown, Pennsylvania, and a distribution center for UPS-WWL in Lexington, Kentucky. Mr. Cobb handled those two start-ups. Following the openings in Allentown and Lexington, CLS and UPS-WWL told PDS that each was anticipating significant expansion of their respective operations in 1994. Consequently, PDS decided to add a position to assist with the growth of PDS and, more specifically, the start-ups of the new facilities. (Cobb Dep. Vol. I at 101-03, 107-8, 128-30; Gregory Dep. at 56-57.)

PDS advertised in the Wall Street Journal for a Vice President of Operations to assist with start-ups. Mr. Cobb, who had known Mr. Gregory since 1976, when they worked together at Dana Corporation, told Mr. Gregory that he and Mr. Hall wanted Mr. Gregory to apply. (Gregory Dep. at 21-22, 26.) The Halls and Mr. Cobb interviewed Mr. Gregory and extended him a job offer to work for PDS at a $105,000/year salary, with a health care package, 401K savings/pension plan, dental care, vision care, and a company car. ( Id. at 29, 35-36.) In the course of the interview, Mr. Hall told Mr. Gregory that he hoped the business would grow to a point where he, Mr. Hall, did not have to be personally involved on a day-to-day basis. Mr. Gregory was also informed that the position required heavy travel — five days a week. (Gregory Dep. at 30-31.) At the time, Ms. Hall had concerns about hiring Mr. Gregory because she felt that his personal friendship with Mr. Cobb may not be "in the long-term best interest of the company." (Nancy Hall Dep. at 84-85.) However, she elected to defer to Mr. Cobb's judgment on the selection. ( Id.)

Mr. Gregory began work December 1, 1993. (Gregory Dep. at 37.) When Mr. Gregory started with PDS, he reported to Mr. Cobb, who at that time, was Executive Vice President of TFE/PDS. Gregory had no direct reports of his own and had no responsibility for TFE. ( Id. at 49-50, 70.)

During 1994 and 1995, Mr. Gregory's initial year and one-half with the organization, PDS experienced the growth projected by its customers. Specifically, eleven distribution centers were opened in 1994 under contracts with CLS and UPS-WWL and three additional facilities were opened under contracts with other customers. ( Id. at 44-47; Morgan Hall Dep. at 37; Cobb Dep. Vol. I at 128-34.) Because all of the UPS-WWL and CLS facilities were in the start-up phase in 1994 and into early 1995 and those facilities were located all over the country, several individuals besides Mr. Gregory participated in the start-up process. (Cobb Dep. Vol. I at 126-27, 133-34, 162.) Indeed, Mr. Gregory did not handle a start-up without assistance until 1995. ( Id. at 162, Gregory Dep. at 46.)

The start-up of a facility is an intense process, requiring total attention to that facility five days a week for up to 12 to 14 hours a day. (Cobb Dep. Vol. I at 110-111.) The clients require that someone from PDS be on-site and available to address concerns and questions. Startups last a minimum of six to eight weeks for a small facility and longer for a larger facility. ( Id. at 108-111.) In at least one instance, the initial hiring for a facility was not set until six months after the facility had been located and out-fitted. (Gregory Dep. at 43.) Typically, hiring took several weeks and PDS might be involved months before hiring even started. ( Id. at 58.)

In the start-up, PDS hires the manager and a workforce and establishes rules and the human resource function. (Cobb Dep. Vol. I at 108, 111-12.) Depending on how busy everyone was, hiring might be done by any number of individuals including Mr. Cobb, Roger Parker, Mr. Gregory or the on-site manager. ( Id. at 127-28, 140-41, 146-48; Gregory Dep. at 65.) Those involved, including Mr. Gregory, were also responsible for seeing that the workforce was trained in the skills necessary to receive, package, and distribute the customers' product and that workplace rules and processes were implemented. (Gregory Dep. at 28-29, 59-62; Cobb Dep. Vol. II at 45-48.)

Once the workforce was hired and trained, Mr. Gregory or whoever was responsible for the start-up remained at the facility until shipping began and the start-up phase was over. (Morgan Hall Dep. at 49.) At that point, the day-to-day events were left in the hands of onsite human resource/operations managers who dealt with the employees and the customers. (Gregory Dep. at 66.) When the facility managers had problems, they could call Mr. Cobb, Mr. Gregory, Mr. Hall, Ms. Hall, or Robert Cunningham (TFE/PDS vice president and general counsel). (Cobb Dep. Vol. I at 71, 123-24; Gregory Dep. at 66.) Mr. Cobb, who had operations managers send him weekly activity reports, remained responsible for the on-site manager's annual performance reviews and made bonus decisions for those managers with input from Mr. Gregory. (Cobb Dep. Vol. I at 94, 162-64.)

Beyond his duties with start-ups, as described above, Mr. Gregory also made sales calls and sales presentations with prospective clients. (Gregory Dep. at 27-28.) He also was designated as the company's EEO officer. ( Id. at 79-80.) Although Mr. Gregory was the EEO officer, employees with complaints could contact other TFE/PDS employees, such as their on-site manager, Mr. Cobb, Ms. Hall, Mr. Hall, Mr. Cunningham, or Marlene Harn (another vice president). (Cobb Dep. Vol. I at 153-55.) All complaints were to be reviewed with corporate counsel (Mr. Cunningham) and corporate human resources (Ms. Hall). ( Id. at 154-55.) Finally, Mr. Gregory was a member of the "appeals board" for discharged employees. (Gregory Dep. at 63.) And a member of this board, he participated in telephone conferences regarding the circumstances of the "appealed" case. (Cobb Dep. Vol. I at 54-55.)

In early 1995, Mr. Hall changed Mr. Gregory's title to Executive Vice President of PDS, and Mr. Cobb's title to President of TFE/PDS. Mr. Hall remained the CEO of TFE/PDS and Ms. Hall remained the Executive Vice President of TFE/PDS. (Gregory Dep., Ex. 6.) Mr. Gregory was added to the "Executive Committee" of the TFE/PDS organization. (Gregory Dep. at 74, Ex. 5.) That committee originally consisted of Mr. Hall, Ms. Hall, Mr. Cobb, Ms. Harn and Mr. Cunningham and was formed when Mr. Cobb joined the TFE/PDS. (Nancy Hall Dep. at 53, 83.) The committee's purpose was long-range planning and strategic decision-making. ( Id. at 85; Gregory Dep. at 73.) Mr. Gregory, as well as Mr. Hall, considered this change to be a promotion. (Gregory Dep. at 69, Ex. 6.) At this time, Mr. Gregory also received a bonus. ( Id. at 77-78.)

In July 1995, a PDS-staffed facility in Indianapolis faced a unionization drive, the first ever in TFE/PDS history. (Gregory Dep. at 92-93; Cobb Dep. Vol. I at 172.) When corporate headquarters learned that the local Teamsters were attempting to unionize the PDS facility in Indianapolis, Mr. Gregory was sent to Indianapolis to be the "point person" on the anti-union drive. (Gregory Dep. at 97; Morgan Hall Dep. at 91.) Mr. Gregory's job in Indianapolis was to assess the problems, apprise corporate headquarters of them, and attempt to reconcile them. (Morgan Hall Dep. at 91; Gregory Dep. at 97.)

During a meeting with all of the PDS employees at the Indianapolis facility, a group of white employees — the same employees who were at the core of the union organizing attempt — accused Mr. Gregory of trying to bribe black employees to keep them from joining the union. (Gregory Dep. at 94-95.) Mr. Gregory explained that he would not bribe anyone, and that he could not bribe anyone because such conduct was illegal. ( Id. at 95-96.) He then reported the meeting to Mr. Cobb and Mr. Cunningham. ( Id. at 97-98.) He asked Mr. Cunningham (the corporate general counsel) whether there was anything legally that could be done to stop the rumors; Mr. Cunningham answered that there was not. ( Id. at 98.)

During the organizing campaign, corporate headquarters asked for up-dates on what was occurring at the facility. (Nancy Hall Dep. at 179.) After he was in Indianapolis for several weeks, Mr. Gregory reported that "everything was fine" and he did not ask for help. ( Id. at 179-80; Morgan Hall Dep. at 93-94.) Mr. Cunningham and the Halls then went on pre-planned vacations. (Nancy Hall Dep. at 180; Cobb Dep. Vol. I at 184-85.)

When Mr. Cunningham and the Halls returned from their vacations, they learned that because a sufficient number of employees signed certification cards, there would be a union election. (Nancy Hall Dep. at 179-80; Morgan Hall Dep. at 92.) As a result, PDS called in a labor consultant named Bob Wright to help Mr. Gregory with the drive. (Gregory Dep. at 101; Nancy Hall Dep. at 181-82.) Mr. Wright reported that the employees were angry, that there were a fair number of union supporters, and that it would be difficult to win the election. (Nancy Hall Dep. at 181-82.) Consequently, in late July 1995, Mr. Hall and Mr. Cunningham (and later, Ms. Hall) flew to Indianapolis to meet with Mr. Gregory, Mr. Cobb, Mr. Wright, and the Indianapolis employees. (Morgan Hall Dep. at 87-88; Nancy Hall Aff. ¶ 4.) At the meetings, a woman, who was one of the leaders of the union campaign, complained to Mr. Hall that Mr. Gregory was a liar, untrustworthy, and unresponsive to their concerns. (Morgan Hall Dep. at 87-88.) As she made her comments, there was general assent from a number of the employees (of all races and genders) present. ( Id.) Ms. Hall also heard similar complaints from employees in Indianapolis. (Nancy Hall Dep. at 187.) The Halls also heard at least one complaint from individual employees that Mr. Gregory was "prejudiced." (Gregory Dep. at 103-04.)² Mr. Gregory inferred this to mean that the employee was accusing him of being prejudiced against white people. ( Id.) Ms. Hall told Mr. Cobb that some of the employees had "said that [Mr. Gregory] had shown favoritism" and that "she felt there was some merit to it." (Cobb Dep. Vol. II at 157.)

2 Although Mr. Gregory was not present during this conversation, the conversation was relayed to him by Mr. Wright. Mr. Wright's relaying of the conversation appears to fall within the hearsay exemption of Federal Rule of Evidence 801(2)(C).

Shortly thereafter, Mr. Gregory told Mr. Cobb, Mr. Hall, Ms. Hall, and Mr. Wright, that his presence at the facility was a liability to PDS's effort to win the organizing campaign. (Gregory Dep. at 98-99.) Mr. Gregory stated that he felt that his reputation in the facility was not held in high regard by some of the union's supporters and that his continued presence in the facility might distract from the real issues of the campaign. ( Id. at 98, 105.) He also did not want race to be a factor in the campaign. ( Id. at 105.) Mr. Gregory volunteered to leave and went to work on a start-up assignment in Philadelphia and subsequently, in Chicago. ( Id. at 105-06.)

After Mr. Gregory left Indianapolis, Ms. Hall and Mr. Cobb had dinner together. (Cobb Dep. Vol. I at 204-05; Nancy Hall Dep. at 192.) Ms. Hall told Mr. Cobb that she believed the union drive was Mr. Gregory's fault and she felt Mr. Cobb should remove him from the Executive Board. (Cobb Dep. Vol. I at 205.) She further told him that "she believed what some of the group of employees had told her, that [Mr. Gregory] had, in fact, played favoritism with black employees." ( Id. at 206-07.)³ She also told Mr. Cobb that Mr. Gregory was at fault for receiving insurance questions and information from employees and not passing them along to her. ( Id. at 207.) When Mr. Cobb refused to agree to remove Mr. Gregory from the Executive Board, Ms. Hall became angry and said that she would take the matter up with Mr. Hall. ( Id.)

3 Later in his deposition, Mr. Cobb testified that at that dinner meeting, Ms. Hall said that she wanted Mr. Gregory removed from the Executive Board because "she felt he was incompetent and that — that's all." (Cobb Dep. Vol. II at 139.) He elaborated by saying, "I don't recall that she gave me the reasons [for why she felt Mr. Gregory was incompetent] other than she blamed the Indianapolis situation on [Mr. Gregory]. His inattentiveness to . . . what was going on in Indianapolis, his lack of paying attention to the situation that was going on in Indianapolis." ( Id. at 141-42.)
To the extent this testimony is inconsistent with Mr. Cobb's earlier testimony recounted above, the court will construe the inconsistency in Mr. Gregory's favor at the summary judgment stage.

The union election occurred on August 30, 1995, and PDS prevailed. (Morgan Hall Dep. at 101-02.) However, the campaign had cost the company $100,000 as well as substantial effort. ( Id.) Moreover, although CLS, the customer at the Indianapolis facility (and one of PDS's two major clients), was "ecstatic" that the company had won the election, it began an immediate audit of its relationship with PDS. ( Id. at 34-35, 102.) CLS assigned a representative to conduct a study as to whether it could better staff its own facilities. ( Id. at 102.) In the course of that 6-month study, PDS got no new work from CLS and ultimately, was told that CLS would phase out its relationship with PDS. ( Id. at 103; Nancy Hall Dep. at 105.)⁴

4 Mr. Gregory argues that these statements by the Halls are contradicted by statements made at a Senior Management meeting on November 21, 1995, indicating that the Halls were working on proposals for soliciting new business from CLS. (Pl.'s Ex. 9 (Senior Management Meeting Minutes, November 21, 1995 at 1-2).) However, this evidence is not inconsistent — simply because PDS solicited business from CLS does not show that CLS ever accepted any of those proposals.

Mr. Hall felt that "the majority of the Indianapolis problem should be laid at the feet of Steve Cobb and not John Gregory" because Mr. Cobb was directing Mr. Gregory's activity. ( Id. at 78, 97-98.) Mr. Hall felt that Mr. Cobb had directed Mr. Gregory not bring in help from corporate headquarters, and that "Steve Cobb wanted [corporate headquarters] kept out of every part of the company [that] he . . . possibly [could]. . . . So therefore what initially appeared to be a lack of judgment on John Gregory's part merely became another nail in the coffin of Steve Cobb." ( Id. at 99.)

Mr. Hall determined that Mr. Cobb had been withholding information and directing others to do so, and that Mr. Cobb would be asked to leave the company. ( Id. at 26-27.) On September 4, 1995, Mr. Hall sent a letter to Mr. Cobb telling him that they would arrive at some understanding about how to disengage on September 5, 1995. (Cobb Dep. Ex. 11.) On September 5, 1995, Mr. Cobb and Mr. Hall met and Mr. Hall agreed to buy back Mr. Cobb's minority shares of PDS. (Cobb Dep. Ex. 1.) Mr. Cobb was given two existing clients and released from his covenant not to compete as to those clients but restricted as to remaining clients. ( Id.; Cobb Dep. Vol. I at 33.) Mr. Cobb also agreed that he could make job offers to certain employees but that he could not make an offer to Mr. Gregory until January 1, 1996. ( Id.) Mr. Hall made this arrangement because he wanted to keep Mr. Gregory, but was afraid Mr. Gregory would leave to go into business with his long-time friend. (Morgan Hall Dep. at 172.)

After he met with Mr. Hall on September 5, 1995, Mr. Cobb immediately called Mr. Gregory and offered him a position with a new company that he was planning to form. (Cobb Dep. Vol. I at 33, 35.) It was in this conversation that Mr. Cobb told Mr. Gregory that Ms. Hall wanted to remove Mr. Gregory from the Executive Committee. (Gregory Dep. at 111.) Mr. Cobb told Mr. Gregory that she wanted to do this "as a result of my involvement with the in situation in Indianapolis." ( Id.)

Also on September 5 (the day Mr. Cobb left the company), Mr. and Ms. Hall called Mr. Gregory and spoke with him for about an hour. (Morgan Hall Dep. at 172.) They told him that Mr. Cobb was leaving and they wanted Mr. Gregory to stay with PDS. They told him that he was "important" to them and they hoped he would "ultimately elect to stay with [PDS]." ( Id.) Mr. Gregory told them that he "was very upset and disturbed about [Ms. Hall]'s conversation [with Mr. Cobb in Indianapolis], wanting me removed from the board because of the Indianapolis situation." (Gregory Dep. at 113.) In response, "[Mr. Hall] said that [Ms. Hall] was wrong [and that] [s]he acted out of emotion. And [Mr. Hall] told her that. And [Mr. Hall] assured [Mr. Gregory] that there would be nothing else done with regard to that situation." ( Id.) Ms. Hall told Mr. Gregory that Mr. Cobb "made a mistake in [Mr. Gregory's] salary" and it would be raised immediately to $125,000. ( Id. at 131.) Mr. Hall also offered Gregory a $20,000.00 bonus if he stayed with TFE/PDS beyond January 1, 1996. ( Id. at 132.) Mr. Gregory told them that he would stay with them. ( Id. at 131.) Mr. Gregory later told Mr. Cobb that he would not join Mr. Cobb's new company, indicating to Mr. Cobb that he had made an obligation to Mr. Hall to stay. ( Id.)

After Mr. Cobb's resignation, the Halls or Mr. Cunningham met with each of TFE/PDS's clients to inform them of Mr. Cobb's departure. (Nancy Hall Dep. at 64-67.) In the course of those meetings, the Halls learned that their clients as whole were very dissatisfied with the service they had been receiving from TFE/PDS. ( Id. at 67-69.) UPS-WWL told Ms. Hall that it was getting ready to terminate its contract with TFE/PDS, but it would give her a short period to turn things around. ( Id. at 113-14.) The Halls determined that TFE/PDS needed "to make some changes so that [TFE/PDS] could provide better customer service and keep [its] customers." ( Id. at 70.)

Prior to September 5, 1995, a corporate human resource manager was to transfer into the field in a facility. (Gregory Dep. at 107-09.) With his transfer, the corporate office sought applicants to fill his position. A woman was hired on August 15, 1995 to fill his position, which was then designated Director of Corporate Human Resources. ( Id. at 109; Morgan Hall Dep. at 169.) In late August or early September, TFE/PDS also hired two new employees with experience in the human resources field because by that time the Halls "knew that we were probably going to part ways with [Mr. Cobb] and we had to reorganize the company." (Morgan Hall Dep. at 162.) These two new employees (who began work when the company reorganization was announced in mid-September) became Directors of Human Resources/Client Relations reporting to Ms. Hall. ( Id. at 169-170; Morgan Hall Dep. Ex. 2.)

TFE/PDS was reorganized as follows. At the executive level, Ms. Hall stepped into Mr. Cobb's position for both TFE and PDS under the title, Executive Vice President of TFE/PDS. (Gregory Dep. at 132-34; Morgan Hall Dep. 159.) She, like Mr. Cobb before her, reported to the CEO of TFE/PDS, Mr. Hall. (Morgan Hall Dep. at 66.) Mr. Cunningham and Mr. Gregory, who had previously reported to Mr. Cobb, now reported to Ms. Hall. (Morgan Hall Dep. Ex. 2.) Prior to Mr. Cobb's departure, Mr. Gregory was called Executive Vice President. Since Ms. Hall retained the Executive Vice President title when she stepped into Mr. Cobb's shoes, Mr. Gregory's position was re-labeled Senior Vice-President. (Gregory Dep. at 133.) Mr. Cunningham's title was also Senior Vice-President. ( Id.) A new level of management was created, below that of the level occupied by Mr. Gregory and Mr. Cunningham, consisting of three individuals who had the title Director or Human Resources/Client Relations. ( Id. at 132-33; Morgan Hall Dep. Ex. 2.) The Executive Committee was renamed the Senior Management Committee. (Morgan Hall Dep. at 9.) As before, it was comprised of the Halls, Mr. Cunningham, Ms. Harn, and Mr. Gregory, but now also included the new "Director" level of management. The group served the same function as the Executive Committee, but was labeled differently since it included people who were not at the executive level of the company. (Nancy Hall Dep. at 54-61.)

A meeting occurred in mid-September 1995 with the entire senior management team of TFE/PDS, including Mr. Gregory, at which the new corporate structure was discussed and presented, in part, by Mr. Gregory. (Gregory Dep. at 153, 160; Morgan Hall Dep. at 58-59.) Just before the meeting, Mr. Gregory and Mr. Hall discussed how Mr. Gregory would fit into the new organization. (Gregory Dep. at 161.) Mr. Gregory wanted to know "exactly where [he] stood with the company." ( Id.) Mr. Hall told Mr. Gregory that he wanted to free him from "ancillary responsibilities and allow him to focus solely on the most important issue [TFE/PDS] had, which was getting new facilities up and running successfully." (Morgan Hall Dep. at 48.)

Mr. Hall wanted to separate TFE/PDS's "start-up" functions and its "operational" functions.⁵ ( Id. at 48-50.) Prior to Mr. Cobb's departure, Mr. Cobb was responsible for both "operational" and "start-up" functions. Mr. Cobb had Mr. Gregory primarily working on start-ups, although Mr. Gregory also dealt with operational issues. As Mr. Hall testified, "When [Mr. Cobb] left, I divided [Mr. Cobb's] 25 or 30 operational facilities among two or three people [i.e., the new "Directors"] and said, [Mr. Gregory], please focus on start-ups, which is exactly what he'd been doing for the majority of his time prior to [Mr. Cobb] leaving."⁶ ( Id. at 50.) Mr. Gregory, who previously only dealt with start-ups for PDS, now was placed in charge of start-ups for both PDS and TFE. (Nancy Hall Dep. at 73.)

5 Mr Hall described the difference between the "start-up" function and the "operational" function as follows:

A start-up facility begins from the day you walk into an empty building and say we need to put an operation in here. It becomes an operational facility the day the start-up team can leave and the existing management and staff is competent to run the facility and accomplish its designed purpose.

(Morgan Hall Dep. at 49.)

6 In his brief, Mr. Gregory asserts that prior to the reorganization, "operational client relations . . . comprised the majority of [Mr. Gregory's] duties." (Pl's Response and Br. in Opp'n to Defs.' Mot. for Summ. J. at 15-16.) However, the evidence does not support this statement. In the evidence cited by Mr. Gregory describing his duties before the reorganization, there is not a single mention of Mr. Gregory having any contact with a client after the start-up is complete, and the vast majority of the evidence concerns Mr. Gregory's role in start-ups. ( Id. at 3, 6 (citing Gregory Dep. at 26-29; Cobb Dep. Vol. I at 113, 127-36, 141 (Page 141 mentions Mr. Gregory talking to a client in Portland, but on the prior page, it is made clear that the subject of the testimony is Mr. Gregory's "participat[ion] in the Portland start-up."), 145-53 (Pages 150-53 involve the people whom PDS managers (see page 151) of (presumably) operational facilities called when they had a problem. Mr. Cobb testified that they could call Mr. Cobb, Mr. Gregory, Mr. Hall, or another individual. There is no indication from the testimony that clients were making these calls concerning operational facilities.).) Finally, Mr. Gregory points to a series of PDS corporate organizational charts showing that the operations managers of seventeen operational facilities reported to Mr. Gregory, Mr. Cobb and Mr. Hall (in that order). (Morgan Hall Dep. Ex. 1.) Mr. Hall testified that these managers did not report to Mr. Gregory in actuality (because, according to Mr. Hall, Mr. Cobb usurped Mr. Gregory's authority in this area) (Morgan Hall Dep. at 55), and Mr. Gregory points to very little evidence to refute Mr. Hall's contention. (The only possible such evidence are the four pages from Mr. Cobb's deposition (pages 150-53), discussed above, stating that operational managers could call any one of four people (including Mr. Gregory) with problems.) And even if the charts represented reality, nothing in the charts purport to say how much time, if any, was occupied by Mr. Gregory dealing with "operational client relations".

Mr. Gregory's appeals committee duties and EEO responsibilities were transferred to the Director of Human Resources/Employee Benefits (one of the three newly hired Directors). (Gregory Dep. at 135; Morgan Hall Dep. at 174-75; Morgan Hall Dep. Ex. 2.) The Halls claimed that these duties were taken from Mr. Gregory because of complaints from existing clients about TFE/PDS's poor performance in human resources (e.g., the annual employee attrition rate was 150%), and because his start-up responsibilities (which required him to be "constantly" traveling) did not allow him to give EEO issues prompt attention. (Nancy Hall Dep. at 116-17; Morgan Hall Dep. at 134-36.)⁷ Also, during the time that Mr. Gregory handled EEO matters, Mr. Gregory's documentation of claims was very poor. (Cobb Dep. Vol. I at 166; Nancy Hall Dep. at 99-100.) Mr. Cunningham (the corporate counsel) complained about Mr. Gregory's lack of documentation of his investigations of EEO complaints. (Morgan Hall Dep. at 85-86.) Mr. Cunningham felt that had Mr. Gregory better handled a couple of situations, PDS could have avoided the filing of EEOC charges. ( Id.) In addition, at least one manager complained directly to Ms. Hall that Mr. Gregory was not effective in dealing with human resource issues. (Nancy Hall Dep. at 99, 102.) Several facility managers also complained that both Mr. Cobb and Mr. Gregory told them not to call the corporate human resource office, which was supposed to provide oversight and advice on human resource problems. ( Id. at 103-05, 131.)

7 Mr. Hall testified as follows:

I told [Mr. Gregory] that I wanted to free him up from every single day-to-day responsibility because he's out traveling constantly. A start-up situation is like a war. He cannot be bogged down by phone calls with things that must be dealt with very promptly like an EEOC complaint if you're in the middle of a 100-employee training session.

Your beeper cannot go off and you cannot properly attend to administrative issues that require immediate attention. So I said John, I don't want you bothered by anything. I want you to be able to focus solely on getting these facilities up and going properly. Because we had learned that that was critical to the facility's future success.

(Morgan Hall Dep. at 134.)

From the end of the Managers' Conference in mid-September 1995 until January 1996 (when Mr. Gregory left TFE/PDS), Mr. Gregory worked in Chicago overseeing the start-up of two new distribution facilities. (Gregory Dep. at 135; Morgan Hall Dep. at 70; Pl.'s Ex. 9 (Senior Management Meeting minutes, updates from Mr. Gregory, November 21, 1995; November 30, 1995; December 8, 1995; December 15, 1995; January 12, 1996.) Sometime in November 1995, Mr. Gregory learned that he would be responsible for a start-up in Dallas for UPS-WWL involving a very important client, Microsoft. (Morgan Hall Dep. at 72; Gregory Dep. at 175; Pl.'s Ex. 9 (Senior Management Meeting minutes, January 12, 1996, update from Mr. Gregory).) During this time, Mr. Gregory participated in the weekly Senior Management meetings that replaced the Executive Committee meetings. (Pl. Ex. 9; Gregory Dep. at 151.) At each meeting in which he participated (he was on vacation during one), he presented a status report on his activities, others' activities, as well as client feed-back. (Pl.'s Ex. 9.) During these meetings, other members of the Senior Management Committee also presented statuts reports on various issues, including issues related to start-ups.⁸ ( Id.)

8 In his brief, Mr. Gregory points to the Senior Management meeting minutes as evidence that his "start-up responsibilities" were being "preempted" by others. (Pl's Response and Br. in Opp'n to Defs.' Mot. for Summ. J. at 17.) He points to instances in which Directors (who were supposed to deal with operational facilities) presented information on various start-ups. However, he fails to note the instances in which Mr. Gregory reports on, or makes recommendations regarding, operational facilities. In other words, the meetings' minutes reflect that the distinction between start-up and operational facilities was not completely maintained, but that this blurring of the distinction was done by Mr. Gregory as well as by the Directors.
Also, Mr. Gregory argues that the fact that any TFE/PDS employee, other than himself, worked on start-ups, conflicts with Mr. Hall's deposition testimony. ( Id.) In the cited portion of Mr. Hall's deposition, Mr. Hall was responding to a question on the "distinction between Senior Vice President Bob Cunningham's responsibilities and Senior Vice President John Gregory's responsibilities" after the corporate reorganization. (Morgan Hall Dep. at 61.) Mr. Hall indicated that "Robert Cunningham dealt with legal affairs and things in that area exclusively and John Gregory dealt with the logistics of start-ups exclusively." ( Id. at 62.) Mr. Gregory, in arguing that there is a conflict, seems to believe that Mr. Hall said that start-ups would be worked on exclusively by Mr. Gregory, rather than what Mr. Hall actually said, which is that Mr. Gregory would be working exclusively on start-ups.

Between the time of the announcement of the reorganization (in mid-September 1995) and the time Mr. Gregory left TFE/PDS, Mr. Gregory did not complain about his position or otherwise express dissatisfaction over how he was being treated. (Gregory Dep. at 159-60.) During this time, the Halls repeatedly invited Mr. Gregory to come to corporate headquarters in Augusta to talk about him moving to Augusta and to otherwise "decide how we can best go forward together." (Morgan Hall Dep. at 70, 82-83.) Each time, Mr. Gregory stated that he was too busy with the start-ups in Chicago. ( Id.)

In early January 1996, Mr. Gregory returned from a vacation and was paid his $20,000.00 bonus. (Gregory Dep. at 155-56, 159.) At that time, he finally made an appointment to come to Augusta to meet with the Halls to discuss his continuing role with TFE/PDS — the appointment was set for January 22 and 23, 1996. ( Id. at 159; 173.) On Friday, January 12, 1996, Mr. Gregory agreed to go to Dallas, beginning on Monday, January 15, 1996, to spearhead the Microsoft start-up that the client told PDS "had to be done perfectly." ( Id. at 174-75; Morgan Hall Dep. at 144.) However, on January 15, 1996, Mr. Gregory, via facsimile, sent a resignation letter to Ms. Hall. (Gregory Dep. at 177; Morgan Hall Dep. Ex. 4.) The resignation letter stated that Mr. Gregory was upset about the following: not being invited to a meeting in Atlanta on January 5, 1996 where start-up issues where discussed; new operations managers being hired without his input; and, a Director knowing about a new potential start-up in Mexico before he did. (Morgan Hall Dep. Ex. 4.) He concluded:

It is my opinion that this is tantamount to constructive discharge. Therefore, you have given me no other recourse than to provide you with my thirty day notice that I am leaving the company. My last day of work will be January 15, 1996. My unused vacation should be applied toward the balance of the thirty day notice in order to fulfill my contractual agreement. I will turn in the company car during the month of February . . .

( Id.) Two weeks later, on February 1, 1996, Mr. Gregory began working for Mr. Cobb. (Gregory Dep. at 180; Cobb Dep. Vol. I at 36.) When he came to Mr. Cobb's company, Mr. Gregory had two clients. (Cobb Dep. Vol. I at 53-55.)

In the charge he filed with the EEOC, Mr. Gregory contends that he "felt forced to resign" because of organizational changes at TFE and PDS. Specifically, Mr. Gregory stated:

In August 1995, I was accused by several White employees of trying to bribe Black employees to join the union in a union organizing effort. These White employees demanded that I be removed from the facility. Shortly after this, the company's Owners took several duties and responsibilities away from me, and assigned them to two newly hired White employees. The Owners changed my position title from Executive Vice President to Senior Vice President of Operations. No reason was given to me for these actions. As a result of the embarrassment and humiliation this caused, I was forced to resign my position effective January 15, 1996.

I believe I have been discriminated against based upon my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended.

(Gregory Dep. Ex. 7.)

II. Standard of Review

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "material fact" is one that may affect the decision, so that the finding of that fact is relevant and necessary to the proceedings. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is shown to exist if sufficient evidence is presented such that a reasonable fact finder could decide the question in favor of the nonmoving party. See id.; Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has supported the motion as provided by Fed.R.Civ.P. 56(c), the party opposing the motion must come forward with evidence directed to specific facts showing that there is a genuine issue for trial. See Duff v. Marathon Petroleum Co., 51 F.3d 741, 744 (7th Cir. 1995). When considering a motion for summary judgment, the court must view the facts, and all the inferences drawn from those facts, in the light most favorable to the nonmovant. See Smith on Behalf of Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997); Frey v. Fraser Yachts, 29 F.3d 1153, 1156 (7th Cir. 1994).

III. Discussion

TFE/PDS moves for summary judgment as to Mr. Gregory's claim that he was constructively discharged. TFE/PDS first argues that Mr. Gregory cannot base his constructive discharge claim on facts that are not alleged in his EEOC charge. TFE/PDS next argues that Mr. Gregory's constructive discharge claim fails because, as a matter of law, his working conditions were not intolerable.

A. Facts Not Alleged in the EEOC Charge

In order "to prevent circumvention of the EEOC's investigatory and conciliatory role, only those claims that are fairly encompassed within an EEOC charge can be the subject of a resulting lawsuit." Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994); see also McKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 482 (7th Cir. 1996) (noting that this rule also gives "the employer some warning of the conduct about which the employee is aggrieved"). The standard for determining whether an EEOC charge sufficiently encompasses the allegations of a subsequent federal complaint "is a liberal one in order to effectuate the remedial purpose of [statutes such as the ADA] which depend on lay persons, often unschooled, to enforce [their] provisions." Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985) (quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167-68 (7th Cir. 1976) (en banc)). Indeed, the court must construe the EEOC charge with "utmost liberality" in identifying the permissible claims. Id.

The issue is whether the claims of discrimination asserted in federal court are "like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations." Id. (quoting Jenkins, 538 F.2d at 167). The " Jenkins test" requires: (1) a reasonable relationship between the allegations in the charge and the claims in the complaint and (2) the claim in the complaint could reasonably be expected to "grow out of" an EEOC investigation of the allegations in the charge. See Jenkins, 538 F.2d at 167; see also Cheek v. Western Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994) ("The claims are not alike or reasonably related unless there is a factual relationship between them. This means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals.").

TFE/PDS argues that three facts were not alleged in Mr. Gregory's EEOC charge and should not be considered in this case: (1) that he was not invited to a meeting in Atlanta on January 5, 1996 where operational issues where discussed; (2) that a Director knew about a new potential start-up in Mexico before he did;⁹ and, (3) that the Halls heard an allegation during the Indianapolis union drive that Mr. Gregory exhibited "favoritism" (as opposed to the allegation that is explicitly in his charge that employees accused him of bribing African-American employees to join the union¹⁰). As quoted in the factual recitation, Mr. Gregory's EEOC charge states, in relevant part:

9 In his brief, Mr. Gregory phrases this fact as Mr. Gregory being "denied the opportunity to participate in the Mexico startups." (Pl.'s Response and Br. in Opp'n to Defs.' Mot. for Summ. J. at 27.) However, the only evidence of these start-ups is an announcement in the January 12, 1996 Senior Management Meeting minutes that TFE/PDS would be opening three interrelated new facilities in Mexico and Texas. (Pl. Ex. 9.) There is no evidence that Mr. Gregory would have been "denied the opportunity to participate" in these start-ups, if and when they occurred. The best inference for Mr. Gregory that can be made from this evidence is that others in the company knew about these potential start-ups before he did. As Mr. Gregory stated in his resignation letter: "It was . . . mentioned by Bo [at the January 12 meeting] that we could be opening three new locations near the Mexican border very soon. . . . [T]hese [revolve] around operations and this was the first I had heard of this." (Morgan Hall Dep. Ex. 4.)
Further, there is no evidence that any start-up in or near Mexico actually occurred in all of 1996. Mr. Hall testified that the company did "take over" an "operation" in Mexico, but that this did not constitute a "start-up" in company parlance. (Morgan Hall Dep. at 74-75.) He explained:

Start-up means you've got to go into an empty building and fill it up with people and equipment and stuff. A takeover — say that people worked for Kelly Services and they get mad at Kelly. And then they say PDS will take over that operation. You just go in and take over. The operation is already there. There's no planning, there's no facilities decision to be made. You just go in and assume the responsibilities for people. Totally different. It's an HR function as opposed to operations function.

( Id. at 75.)

10 Although the charge says that the allegation was that Mr. Gregory bribed employees to join the union, the court will presume that what he meant to say was that he was accused of bribing employees to not join the union. (Gregory Dep. at 94-95.)

In August 1995, I was accused by several White employees of trying to bribe Black employees to join the union in a union organizing effort. These White employees demanded that I be removed from the facility. Shortly after this, the company's Owners took several duties and responsibilities away from me, and assigned them to two newly hired White employees. The Owners changed my position title from Executive Vice President to Senior Vice President of Operations. No reason was given to me for these actions. As a result of the embarrassment and humiliation this caused, I was forced to resign my position effective January 15, 1996.

(Gregory Dep. Ex. 7.)

The first two factual allegations TFE/PDS contends should be excluded (that Mr. Gregory was not invited to a meeting in Atlanta on January 5, 1996 where operational issues where discussed and that a Director knew about a new potential start-up in Mexico before he did) are sufficiently alike or reasonably related to the allegations in the EEOC charge to be included in this case. Construing the EEOC charge liberally (as the court must, see Babrocky, 773 F.2d at 864),¹¹ these two factual allegations can be seen as specific examples of, as Mr. Gregory stated in his charge, "the company's Owners [taking] several duties and responsibilities away from me, and assign[ing] them to two newly hired White employees." (Gregory Dep. Ex. 7.) These two specific factual allegations "describe the same conduct" (i.e., taking away Mr. Gregory's responsibilities) and "implicate the same individuals" (i.e., the Halls) as the allegations in the EEOC charge. See Cheek, 31 F.3d at 501 ("The claims are not alike or reasonably related unless there is a factual relationship between them. This means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals."). Further, the specific factual allegations could reasonably be expected to "grow out of" an EEOC investigation of the allegations in the charge, since the specific factual allegations can be viewed as examples of the general allegation (i.e., that his duties were taken from him) contained in the charge. Moreover, the specific factual allegations are clearly stated in the letter accompanying the resignation that is explicitly referenced in the EEOC charge. (Morgan Hall Dep. Ex. 4.) Even a cursory EEOC investigation could be expected to unearth the resignation letter.

11 TFE/PDS argues that the court should not interpret Mr. Gregory's charge liberally because he is a well-educated executive who was the company's EEO officer. However, TFE/PDS does not point to any case that suggests that the typical liberal standard should be tightened for former EEO officers. He is not a lawyer, and, ironically, TFE/PDS argues elsewhere that Mr. Gregory did a very poor job as EEO officer. And the language of Jenkins and Babrocky indicates that the Seventh Circuit did not anticipate that exceptions to the liberal standard would be made for lay-person EEO officers: "The standard is a liberal one in order to effectuate the remedial purposes of Title VII, which itself depends on lay persons, often unschooled, to enforce its provisions." Babrocky, 773 F.2d at 864 (emphasis added) (citing Jenkins, 538 F.2d at 167-68 ("Complainants to the EEOC are seldom lawyers.") (quotation omitted)). The use of the word "often" indicates that there will be occasions in which the liberal standard will be employed for a lay person who is "schooled".

The third allegation that TFE/PDS seeks to bar (that the Halls heard an allegation during the Indianapolis union drive that Mr. Gregory exhibited "favoritism") also will be considered by the court in this case. Although the EEOC charge does not actually allege that the Halls knew of the bribery allegations, it is clearly implicit in the charge. And the acts of bribing someone and showing favoritism towards someone are sufficiently similar to pass the " Jenkins" test. Both these allegations stem from the same incident — the Indianapolis union drive — and involve the same Indianapolis employees.

B. Constructive Discharge

"Establishing constructive discharge is a two-step process. First, a plaintiff needs to show that his working conditions were so intolerable that a reasonable person would have been compelled to resign. Second, the conditions must be intolerable because of unlawful discrimination." Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 877 (7th Cir. 1999) (quoting Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998); Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996)). The court in Simpson, considering a case dismissed on summary judgment, summarized prior Seventh Circuit case law on what does and does not constitute "intolerable" working conditions:

We have characterized as intolerable working conditions that involved a series of escalating sexual remarks culminating in a physical assault and death threat. Brooms v. Regal Tube Co., 881 F.2d 412, 423-24 (7th Cir. 1989). Also intolerable was a work environment in which a manager held a gun to his subordinate's temple, took a picture and then circulated the picture at a company meeting, stating `this is what a nigger looks like with a gun to his head.' Taylor v. Western Southern Life Ins. Co., 966 F.2d 1188, 1191, 1199 (7th Cir. 1992). Intolerable, too, was a work environment where a subordinate's disputed sexual relationship with her supervisor led to a suicide attempt. Snider v. Consolidation Coal Co., 973 F.2d 555, 557, 561 (7th Cir. 1992).

In contrast, this Court has found a range of unpleasant and even embarrassing employer actions tolerable and therefore insufficient to effect a constructive discharge. For instance, an arbitrary reprimand, exclusion from office activities, assignment to a fallow sales territory and lack of supervisor support were found tolerable in Harriston v. Chicago Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993). Similarly, a series of work restrictions including limited secretarial access, denial of a flex-time request, a bar on speaking to colleagues about non-work matters and truncated breaks were deemed tolerable in Rabinovitz, 89 F.3d at 489. Again, a work environment in which husband and wife plaintiffs were shunned, received harassing phone calls, discovered that someone had gone through papers in their work locker and were told once that their safety might be in jeopardy was found `unpleasant,' but not intolerable. Drake, 134 F.3d at 886-87.

Id. The Simpson court then addressed the facts of its own case, stating:

Most of Simpson's complaints fall into the relatively benign genre held insufficient to amount to constructive discharge in Harriston: a lack of support from a supervisor, a failure by her company to assign new employees to her shift, an alleged constraint on her ability to supervise a male subordinate, a colleague's failure to support her efforts to discipline subordinates and Ames's habit of scratching his genitals.

Id. The court also decided that "Simpson's supervisor's delay in discharging a threatening employee" also did not constitute intolerable conditions:

Brooms, Taylor and Snider suggest that a work environment posing grave threats to physical integrity may be intolerable. The plaintiff in Brooms received a pointed death threat. The plaintiff in Taylor was held at gunpoint. The worker in Snider attempted suicide. The record does not indicate that Simpson was in similarly grave peril. . . . [and] does not suggest that the threat was as grave or specific as the ones found `intolerable' in Brooms, Taylor and Snider.

Id. at 878 (citations omitted).

In this case, as in Simpson, even viewing the facts in the light most favorable to Mr. Gregory, his "complaints fall into the relatively benign genre held insufficient to amount to constructive discharge in Harriston." Id. at 877. Indeed, the allegations in Harriston were either very similar to or somewhat worse than those alleged by Mr. Gregory. The court in Harriston stated:

Harriston alleged that she was subjected to such forms of discrimination as being excluded from office activities, being reprimanded without reason, and being given one of the least lucrative sales territories, as well as not being assigned new accounts, not being allowed to supervise two white employees, and not being assisted by Riordan. We agree with the district court that the alleged conduct was not intolerable. Harriston's allegations do not show that her working conditions were so onerous or demeaning that she was compelled to leave her employment with the Tribune.

992 F.2d at 705 (citations omitted); see also Brown v. Ameritech Corp., 128 F.3d 605, 606, 608 (7th Cir. 1997) (affirming summary judgment on constructive discharge claim, despite the "shift in job responsibilities" that left plaintiff with an assignment he felt was "demeaning and below his skill level" and resulted in the loss of his company truck).

Mr. Gregory argues that the following facts show that he was constructively discharged: (1) the change of his job title from Executive Vice-President to Senior Vice-President; (2) the change from his reporting to the President of the company (Mr. Cobb) to his reporting to the Executive Vice-President of the company (Ms. Hall); (3) the removal of his responsibilities for existing (or operational) facilities (including responsibilities for working with the facility managers and clients of these existing facilities); (4) the removal of his appeals board and EEO responsibilities; (5) the fact that the new Directors who were given his old responsibilities reported to Ms. Hall rather than to him; and, (6) the fact that employees other than himself worked on start-ups.

With respect to the first two facts, Mr. Gregory has not shown that these changes were anything other than cosmetic. Apart from the changing of his job responsibilities (which are the subject of his later arguments), the change in job title was simply a matter of nomenclature that did not decrease his pay or benefits — in fact, his salary increased significantly¹² and a bonus was offered. Although, after the reorganization, Mr. Gregory was reporting to an "Executive Vice-President" (Ms. Hall) rather than a "President" (Mr. Cobb), it is undisputed that Ms. Hall simply stepped into Mr. Cobb's position after he left.

12 Mr. Gregory argues that this salary increase did not amount to a "raise" because when he learned of the increase, Ms. Hall told Mr. Gregory that Mr. Cobb "made a mistake in [Mr. Gregory's] salary" and Mr. Cobb should have raised it earlier. (Gregory Dep. at 131.) Nonetheless, it is undisputed that when he was told of this increase, the Halls were trying to keep him from going to Mr. Cobb's new company, and keep him with TFE/PDS-and even offered him an additional bonus for doing nothing more than staying with the company.

And although Mr. Gregory lost his responsibilities for existing PDS facilities in the reorganization, as well as his appeals board and EEO responsibilities, he gained authority over start-ups for both PDS and TFE. (Before the reorganization, he had only worked for PDS. This was a significant additional responsibility-in terms of gross earnings, TFE was twice as large as PDS in 1995. (Morgan Hall Dep. at 43.)) And as detailed in the factual recitation in this Entry, the vast majority of the evidence cited by Mr. Gregory concerning his duties prior to the reorganization relates solely to his work on start-ups. (Pl's Response and Br. in Opp'n to Defs.' Mot. for Summ. J. at 3, 6 (citing Gregory Dep. at 26-29; Cobb Dep. Vol. I at 113, 127-36, 141, 145-53).) Therefore, the reorganization resulted in a significant gain of responsibility in one area and a relatively minor (at least in terms of the time Mr. Gregory spent on those areas prior to the reorganization) loss of responsibility in other areas.

Finally, the fact that employees other than himself worked on start-ups after the reorganization appears to have been a matter of business necessity. The undisputed evidence establishes that the start-up process in a very intensive one, requiring the coordinating employee to be at the start-up site working in excess of forty hours a week. Mr. Gregory has failed to even argue (much less produce evidence showing) that he had the capability of personally coordinating the various start-ups that TFE/PDS had in various stages at any given time. But although he cannot reasonably complain that others worked on start-ups, he could have reasonably expected to be kept apprised of all of the major start-up issues — he was, after all, the vice-president in charge of start-ups.¹³ To the extent that he was left out of the loop regarding certain start-up issues (the January 5, 1996 meeting and the proposed Mexican start-ups¹⁴), he may well have been justifiably insulted. However, none of these alleged incidents, either alone or in combination, comes close to the kind of "intolerable" conditions that the Seventh Circuit requires to make out a constructive discharge claim.

13 The court notes that to a certain extent, the Halls provided him with an avenue of relief for his complaint that he was left out of the loop regarding certain start-up issues. The Halls asked him to relocate to corporate headquarters, which would have allowed him (at least in theory) to get out of the field and assume a more supervisory role over all of TFE/PDS's start-ups (rather than being in the field, focusing intensively on a single start-up). However, Mr. Gregory refused this request, refused the Halls initial requests to meet to discuss his role in the company, and then quit a week before their scheduled meeting. By rejecting the Halls' offer to move to corporate headquarters (which at least held the promise of keeping him more in the loop regarding all start-up issues) and refusing to even discuss the matter with the Halls, Mr. Gregory may have forfeited his right to use this as grounds for a claim of constructive discharge. See Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997) ("Instead of discussing Reynolds' offer [of a transfer] with him, Perry rejected it outright. That was her prerogative, but because it revealed that her hands were not tied, and that resignation was not the only choice available to her, it tells us that her constructive discharge claim should not have reached a jury, either.").

14 As discussed above, either these Mexican start-ups never happened, or they were "take-overs" and not start-ups at all.

Mr. Gregory argues that while these changes "would likely aggravate any person in a supervisory position . . . [Mr.] Gregory was more than any person" — he was an Executive Vice President of PDS during a time when PDS's gross earnings more than doubled.¹⁵ (Pl's Response and Br. in Opp'n to Defs.' Mot. for Summ. J. at 31.) The Seventh Circuit recently held that, in determining whether an employee has been constructively discharged, "the jury must ask whether a reasonable employee would have found her working conditions so inappropriate to her skill level that they `made remaining in the job unbearable.'" See Neal v. Honeywell, Inc., 191 F.3d 827, 830 (7th Cir. 1999) (quoting Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998)). But even taking into account that "[Mr.] Gregory was more than any person", his conditions did not rise to the level of "intolerable".

15 PDS's gross earnings in 1994 were $12 million; PDS's gross earnings in 1995 were $27 million. (Morgan Hall Dep. at 43.) Mr. Gregory also seeks to take credit for PDS's increase in earnings for 1996, but this seems to be too much of a stretch considering he only worked for PDS until January 15, 1996 (and those fifteen days appeared to have consisted of little more than finishing a vacation, participating in a conference call, and resigning).

In Neal, a case arising under the whistleblower-protection provision of the False Claims Act, the court summarized the facts as follows:

Neal, who holds a Ph. D. in `Organizational Behavior,' worked for two years at Honeywell, during which she coordinated training, helped departments to resolve disputes and systemic morale problems, evaluated employees' productivity, wrote the plant-wide newsletter and ghost-wrote management communications, and conducted surveys. After blowing the whistle, she was left with only the occasional training duty, and (ironically) the responsibility for drafting a new discipline policy. For a highly educated employee, such a drastic diminution of duties might suffice as a `constructive discharge.'

Neal's theory rests on more than just the reduction in her responsibilities, however. Her immediate supervisor made her feel like a traitor for ratting on fellow employees. Worse, Neal worried that Honeywell would not be able to guarantee her safety at work. Honeywell places much stock in the absence of direct proof that Young [the man whom Neal turned in, and who "related to all who would listen his plans to `get' the snitch, describing the whistleblower as `dead meat,' and announcing his intention to `break his legs'" 191 F.3d at 829] knew Neal's identity and argues that, even if he did know, it was Neal's fault for being indiscreet. This is irrelevant. [The whistle-blower provision] is not limited to secret reports. Anyway, it's cold comfort to hear that you'll probably survive so long as the thug doesn't figure out who you are. Even less comfort is it to be told that you've only yourself to blame. . . . Neal presented more than enough evidence to allow a jury to find that she was forced out of her job at Honeywell.

Id. at 830-31 (citation omitted).

By contrast to the facts of Neal, to the extent that the reorganization resulted in any diminution of Mr. Gregory's duties (in theory, Mr. Gregory's duties were not really diminished-just changed; the reality of the situation is difficult to know since Mr. Gregory only stayed with TFE/PDS after the reorganization long enough to complete a single start-up assignment), the diminution cannot be described as "drastic." Mr. Gregory was performing the same duties that occupied the majority of his time before the reorganization-start-ups. And the start-ups on which he was working were not insignificant-on the day of his resignation, he was due to begin working on a major start-up for PDS's largest remaining client. Further, he continued his participation in the Senior Management Committee (which replaced the Executive Committee, and was TFE/PDS's sole long-range planning and strategic decision-making body).

In further contrast to Neal (as well as Brooms, Taylor and Snider, discussed above), there is no indication that Mr. Gregory faced "a work environment posing grave threats to [his] physical integrity." Simpson, 196 F.3d at 878 (citations omitted). And unlike Neal, there is no indication that Mr. Gregory's supervisors displayed open contempt for him. Instead, the Halls told him in no uncertain terms that he was important to the company, repeatedly tried to schedule meetings to discuss his role with the company, offered to move him into corporate headquarters, and paid him a $20,000 bonus.

In short, the court finds that, as a matter of law, Mr. Gregory's working conditions were not so intolerable that a reasonable person in his position would quit. In other words, no reasonable jury could find that Mr. Gregory's "resignation [wa]s not truly voluntary." Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997) ("[C]onstructive discharge . . . occurs when an employee's discriminatory working conditions become so intolerable that a reasonable person in her position would be compelled to resign. In other words, the plaintiff's resignation is not truly voluntary if quitting was the only way she could extricate herself from the intolerable conditions.") (citation omitted).

Mr. Gregory's constructive discharge claim is made even less meritorious when one considers his relative lack of complaint about his "intolerable" conditions. The Seventh Circuit has repeatedly emphasized the importance of seeking redress before quitting in constructive discharge cases. See Sweeney v. West, 149 F.3d 550, 558 (7th Cir. 1998) ("[U]nless conditions are beyond `ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress."); Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998) ("More than ordinary discrimination is necessary to establish a constructive discharge claim; in the `ordinary' case, an employee is expected to remain employed while seeking redress."); Brown v. Ameritech Corp., 128 F.3d 605, 608 (7th Cir. 1997) ("The aggrieved person must . . . seek redress at the workplace, unless he encounters some kind of aggravating situation."); Perry, 126 F.3d at 1015 ("But unless conditions are beyond `ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress."); Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996) ("We have . . . noted that an employee may not be unreasonably sensitive to his working environment and that he must seek redress while remaining in his job unless confronted with an aggravating situation beyond ordinary discrimination.") (citing Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989)). More recently, the Seventh Circuit clarified these statements:

In some situations, the standard of reasonableness will require the employee who wants to make a successful claim of constructive discharge to do something before walking off the job. The reason is not that there is a doctrine of exhaustion of remedies, which would . . . mean that the employee might have to sue twice to preserve his right to sue at all. The reason, rather, is that passivity in the face of working conditions alleged to be intolerable is often inconsistent with the allegation. The significance of passivity is thus evidentiary. . . . Failure to exhaust may show that the employee didn't really consider his working conditions intolerable or may deny the employer a reasonable opportunity to correct the situation without facing a lawsuit.

Lindale v. Tokheim Corp., 145 F.3d 953, 955-56 (7th Cir. 1998) (citations omitted).

Mr. Gregory argues that his complaint to the Halls on September 5, 1995 (complaining about Ms. Hall's alleged request that Mr. Cobb remove Mr. Gregory from the Executive Committee) obviated any need to further complain or otherwise seek redress while still on the job. In that conversation, the Halls assured Mr. Gregory that "there would be nothing else done with regard to [the Indianapolis union drive situation]." (Gregory Dep. at 113.) Mr. Gregory's theory is that he accepted this assurance until he realized that the assurance, as well as the assurances of his importance to TFE/PDS, his $20,000 bonus, and the entire corporate reorganization, were all part of an "elaborate deception" to "functionally oust" him from TFE/PDS. (Pl's Response and Br. in Opp'n to Defs.' Mot. for Summ. J. at 29, 32.) This "elaborate deception" only became apparent to him when he realized that he had not been invited to the January 5 meeting in Atlanta, that new operations managers had been hired without his input, and that a Director knew about a new potential start-up in Mexico before he did. At that point, he decided that there was no use in any complaint or of seeking legal redress while on the job.

The problem with Mr. Gregory's theory (aside from the fact that, as discussed above, his working conditions were not "intolerable") is that his "[f]ailure to exhaust [his remedies while on the job] may show that the employee didn't really consider his working conditions intolerable or may deny the employer a reasonable opportunity to correct the situation without facing a lawsuit." Lindale, 145 F.3d at 955-56. His failure to even raise a hint of complaint about his "functional ouste[r]" while on the job, combined with his decision to accept the $20,000 bonus only a few days before quitting and starting two weeks later with Mr. Cobb (with two clients already in tow), invites the perception that he had been planning his departure before his discovery of the allegedly intolerable conditions that precipitated his immediate resignation.¹⁶ Further, his refusal to complain — or to even meet with the Halls (he repeatedly rejected their invitations to meet to discuss his role with the company, and then after finally making an appointment to meet, he quit a week before the scheduled meeting) — denied TFE/PDS a reasonable opportunity to correct the situation without facing a lawsuit. Therefore, Mr. Gregory's failure to complain (or otherwise seek redress) while on the job further impairs his claim of constructive discharge.

16 The court does not infer that Mr. Gregory had been planning his departure before early January (when he claims to have discovered the allegedly intolerable conditions) — such an inference would be inappropriate at the summary judgment stage — but the fact that he accepted a substantial bonus just prior to his resignation only compounds the significance of his failure to complain prior to the resignation. Cf. Lindale, 145 F.3d at 955-56 ("In some situations, the standard of reasonableness will require the employee who wants to make a successful claim of constructive discharge to do something before walking off the job. . . . The significance of passivity is . . . evidentiary. . . . Failure to exhaust may show that the employee didn't really consider his working conditions intolerable. . . .") (reversing jury verdict for plaintiff).

Finally, Mr. Gregory has also failed to create a genuine issue of fact as to the second element of a constructive discharge claim — "the [working] conditions must be intolerable because of unlawful discrimination." Simpson, 196 F.3d at 877 (quotation omitted); see also Miranda v. Wisconsin Power Light Co., 91 F.3d 1011, 1017 (7th Cir. 1996) ("Once the plaintiff has made this showing [i.e., that the employer made the working conditions so intolerable as to force a reasonable employee to leave], he must establish that he was constructively discharged because of his membership in a protected class.") (citation omitted); Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 517-18 (7th Cir. 1996) ("[R]egardless of how horrific the conditions Vitug describes may have been, Vitug has failed to put forth any evidence supporting his claim that Multistate's failure to promote him, or Koenig's and Jennings's ensuing incivilities, were a result of his religion or national origin. Because Vitug cannot prove that any of defendants' actions were motivated by his religion or ethnicity, his constructive discharge claim is doomed to failure even if he were able to demonstrate that the working conditions at Multistate were intolerable."). The Seventh Circuit has not expressly clarified the issue of whether, on summary judgment, this second element of a constructive discharge claim may be established through the indirect (or burden-shifting) method of proof, or whether it must be shown through direct evidence of a discriminatory motive.

It appears that direct evidence of a discriminatory motive is required for the second element of a constructive discharge claim. The doctrine of constructive discharge is a method of showing that a plaintiff suffered an adverse employment action equivalent to actual discharge. See, e.g., Simpson, 196 F.3d at 876; Vitug, 88 F.3d at 516-17; Saxton v. American Tel. and Tel. Co., 10 F.3d 526, 536 (7th Cir. 1993). The doctrine is used in many cases to supply the "adverse employment action" required to show a prima facie case in the McDonnell Douglas burden-shifting analysis.¹⁷ See, e.g., Simpson, 196 F.3d at 876. Therefore, it would seem to be impossible (without extreme circularity) for a plaintiff to establish the second element of the doctrine of constructive discharge through the burden-shifting method, if the doctrine of constructive discharge itself is being employed to supply an element of the prima facie case for the burden-shifting method.

17 It appears (although it is not explicitly stated in Plaintiff's brief) that the doctrine of constructive discharge is being used in this case to supply the "adverse employment action" element of the prima facie case. (Defs.' Br. in Supp. of Defs.' Mot. for Summ. J. at 33; Pl's Response and Br. in Opp'n to Defs.' Mot. for Summ. J. at 20-24.)

Moreover, while the Seventh Circuit has not discussed the issue explicitly, numerous Seventh Circuit cases have held that the plaintiff failed to show the second element of a constructive discharge claim without any mention of the indirect, or burden-shifting, method of proof. See Simpson, 196 F.3d at 878 ("[T]here is no evidence that any of the acts Simpson complains of were gender-motivated, other than the fact that Simpson was the only female Production Facilitator at the facility at the time. The mere fact that she is a woman is insufficient to support an inference that the action was gender-motivated."); Drake, 134 F.3d at 887 ("While Mrs. Drake suggests that she retired out of fears for her safety, she has presented no evidence to suggest that this fear was reasonable. More significantly, she has not presented evidence suggesting that this fear was the result of discrimination by 3M."); Miranda, 91 F.3d at 1018 ("Miranda has failed to support her conclusory assertion that Ross attempted to humiliate and embarrass her because of her disability."); Rabinovitz, 89 F.3d at 489 (same); Vitug, 88 F.3d at 517-18 ("[R]egardless of how horrific the conditions Vitug describes may have been, Vitug has failed to put forth any evidence supporting his claim that Multistate's failure to promote him, or Koenig's and Jennings's ensuing incivilities, were a result of his religion or national origin."). All of these cases were decided at the summary judgment stage; some moved through the burden-shifting framework with other claims (involving other alleged adverse employment actions) and others did not. The fact that none of these cases mentions the indirect, or burden-shifting, method of proof when discussing the second element of a constructive discharge claim seems to imply that direct evidence of a discriminatory motive is required for the second element of a constructive discharge claim.

Mr. Gregory fails to produce evidence that any of the acts of which he complains (such as the reorganization or not being invited to the January 5, 1996 meeting) occurred because of his race. He points to Mr. Cobb's testimony that when Ms. Hall asked Mr. Cobb to remove Mr. Gregory from the Executive Committee, Ms. Hall told Mr. Cobb that "she believed what some of the group of [Indianapolis] employees had told her, that [Mr. Gregory] had, in fact, played favoritism with black employees." (Cobb Dep. Vol. I at 206-07.) However, Mr. Cobb did not testify that she stated that her belief of the Indianapolis employees' allegations was based upon Mr. Gregory's race (or whether it was based upon some other reason).¹⁸ Mr. Gregory testified that the Halls admitted to him that when Ms. Hall spoke with Mr. Cobb in early August 1995, she wanted Mr. Gregory removed from the Executive Committee because of the allegation by Indianapolis PDS employees that he was prejudiced. (Gregory Dep. at 111-13.) But again, Mr. Gregory stopped short of saying that Ms. Hall's belief of the allegations was in any way caused by his race. And not only has Mr. Gregory failed to produce evidence that Ms. Hall (or anyone else) believed to allegations against him because of his race, he has failed to show that the PDS employees in Indianapolis who started the rumors did so because of his race. Indeed, he has failed to show that anyone did anything in this case because of his race.

18 Mr. Cobb did testify that "I told [Ms. Hall] that I was not going to remove [Mr. Gregory] from the Board of Directors, that I had walked around and talked to the people in that facility myself, [and I] did not believe that [Mr.] Gregory was showing favoritism to black employees because of his race." (Cobb Dep. Vol. I at 208 (emphasis added).) However, this testimony is not the same as saying that Ms. Hall stated (or otherwise showed in some way that would not amount to speculation) that she believed Mr. Gregory was showing favoritism to black employees because of his race.

Therefore, to the extent that direct evidence of a discriminatory motive is required for the second element of a constructive discharge claim, Mr. Gregory's constructive discharge claim fails, as a matter of law, for this additional reason.¹⁹

19 Because the court has found that Mr. Gregory has failed to produce a genuine issue of fact as to both elements of his constructive discharge claim, the court declines to address the issue of whether Mr. Gregory has produced an issue of fact as to whether TFE/PDS's proffered legitimate, nondiscriminatory reason for its actions is a pretext.

C. Other Adverse Actions

As mentioned above, it appears that the doctrine of constructive discharge is used in this case to supply the "adverse employment action" element of the prima facie case. But in order to satisfy this element, a plaintiff does not necessarily need to show that he was discharged. Instead, an alleged adverse employment action must be "material." See Drake, 134 F.3d at 885 ("While we have defined adverse employment actions quite broadly, it remains true that the adverse action must be material."). In Smart v. Ball State University, 89 F.3d 437 (7th Cir. 1996), the Seventh Circuit provided a fairly comprehensive summary of the law in this area:

In some cases, for example when an employee is fired, or suffers a reduction in benefits or pay, it is clear that an employee has been the victim of an adverse employment action. But an employment action does not have to be so easily quantified to be considered adverse for our purposes. `[A]dverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well.' Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987). In Collins the employee was placed in a new department where her supervisors didn't even know what her job entailed. Her office was taken away from her, and she was assigned to a desk outside her supervisor's office, where a receptionist would typically sit. She also lost her phone, business cards, and listing in professional directories and publications. These changes were found to constitute adverse employment action. Likewise, in Dahm v. Flynn, 60 F.3d 253 (7th Cir. 1994), we found that `a dramatic downward shift in skill level required to perform job responsibilities can rise to the level of an adverse employment action. . . .' Dahm at 257.

While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. In Crady v. Liberty National Bank Trust Co. of Indiana, 993 F.2d 132 (7th Cir. 1993), we found that a change in title from assistant vice-president and manager of one branch of a bank to a loan officer position at a different branch did not by itself constitute an adverse employment action. Another case where adverse employment action was found to be absent is Spring v. Sheboygan Area School District, 865 F.2d 883 (7th Cir. 1989). In Spring, a 65-year-old school principal was offered the choice between retirement and transfer to a different school as part of a school district reorganization plan. The transfer would have afforded the principal a two-year contract and a merit pay increase, but she would have had to share the position with a co-principal. The court found that the `humiliation' she claimed the co-principal arrangement would cause did not constitute an adverse employment action because `public perceptions were not a term or condition of Spring's employment.' Spring at 886. The only negative employment-related consequence of the transfer was found to be an increase in the distance she had to travel to work. This alone did not constitute an actionable adverse employer action. Likewise, in Flaherty v. Gas Research Institute, 31 F.3d 451 (7th Cir. 1994), we found that a lateral transfer, where the employee's existing title would be changed and the employee would report to a former subordinate, may have caused a `bruised ego,' but did not constitute an adverse employment action.

Id. at 441.

In this Entry, the court does not consider whether evidence has been produced sufficient to show that a materially adverse change other than constructive discharge occurred. TFE/PDS moved for summary judgment solely on the grounds that Mr. Gregory's constructive discharge claim fails as a matter of law, and neither party addressed the issue of whether Mr. Gregory suffered a materially adverse change other than constructive discharge.²⁰ Therefore, the court will not address the issue at this time. Instead, the court sets a conference (see below) to determine whether any claims remain in this case.

20 Although the court notes that TFE/PDS was under the impression that a ruling in its favor would "dispose of all issues in this case." (Defs.' Resp. to Pl.'s Mot. for Conference to Set Tr. Date at 1.) And it is understandable that TFE/PDS would be under this impression given that the focus of Mr. Gregory's claim has always been (from the Complaint through and including the summary judgment briefing process) constructive discharge.

IV. Conclusion

As a matter of law, Mr. Gregory has failed to show both that his working conditions were so intolerable that a reasonable person would have been compelled to resign, and that the allegedly intolerable conditions were caused by unlawful discrimination. Therefore, TFE/PDS's Motion for Summary Judgment will be GRANTED.

Final judgment will not be entered at this time because of the possibility that Mr. Gregory is claiming that he suffered an adverse employment action other than constructive discharge.

Plaintiff's Motion for Conference to Set Trial Date is GRANTED as modified herein. The purpose of the conference will be to determine whether any claims remain in this case (such as whether Mr. Gregory is claiming that he suffered an adverse employment action other than constructive discharge), and if so, to set a summary judgment briefing schedule and/or schedule a trial date. The conference will be telephonic, and will be on May 3, 2000, at 2:00 p.m. The parties should call the court at 317-229-3963 for the conference call. This number is used only for the purpose of the conference call and is only available at the date and time designated.²¹

21 If you have any questions about this conference call you may contact Janet Ellis at 317-229-3680.

ALL OF WHICH IS ORDERED this 25th day of April 2000.