Opinion
No. 99 C 309
November 13, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Rose Wilkosz ("Wilkosz") brought this action against her employer, Defendant Hudson Respiratory Care, Inc. ("Hudson"), alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e) et seq. Specifically, Wilkosz claims that Hudson imposed a disciplinary suspension on her for a performance error but treated a male employee guilty of a similar error more leniently. She also claims that Hudson engaged in several acts of retaliation after she filed an internal complaint of sex discrimination in January 1998. Wilkosz remains employed at Hudson's facility in Arlington Heights, Illinois. Now before the court is Defendant's motion for summary judgment. For reasons explained below, the motion is granted.
FACTUAL BACKGROUND
Defendant has moved to strike (Doc. No. 18-1) portions of Plaintiff's affidavit submitted in opposition to Defendant's motion for summary judgment, on the grounds that the affidavit contains impermissible hearsay and statements which are not within Plaintiff's personal knowledge. Plaintiff did not respond to the motion. To the extent that Plaintiff's factual assertions are based upon hearsay or are otherwise outside the scope of Plaintiff's personal knowledge, they are not considered in this decision. The motion is otherwise denied as moot.
A. Facts Surrounding Wilkosz's Differential Treatment Claim
1. Hudson Respiratory Care
Hudson, a manufacturer and distributor of medical devices, manufactures disposable bottles of distilled water and saline solutions at its Arlington Heights, Illinois facility. (Def.'s Rule 56.1(a)(3) Statement of Material Facts in Support of its Motion for Summary Judgment (hereinafter "Def.'s Statement of Facts") ¶¶ 1, 3.) Rose Wilkosz was hired to work for Hudson in 1977 and, apart from a brief break in service prior to 1979, has remained employed there ever since. ( Id. ¶ 4.) In 1979, she assumed the position of Quality Assistance Inspector ("QA Inspector"). ( Id.) Hector Jimenez ("Jimenez") was Wilkosz's supervisor and a Quality Assurance Manager for Hudson from July 1997 to April 1999. (Jimenez Aff. ¶¶ 1, 2, Ex. D to Def.'s Appendix of Exhibits in Support of its Motion for Summary Judgment (hereinafter "Def.'s App.").) During 1998, Hudson employed a total of six QA inspectors, including Dan Bethyo ("Bethyo"), Chris Bunda ("Bunda"), Pat Mizak ("Mizak"), Cheryl Shreeves ("Shreeves"), Kathi Ulander ("Ulander"), and Wilkosz. ( Id. ¶¶ 10, 37.)
2. Wilkosz's Documented Errors
As a QA Inspector, Wilkosz was required to pull representative samples of product bottles from the production line and inspect them to ensure that the bottles were labeled correctly. (Def.'s Statement of Facts ¶ 6.) From 1995 to 1998, Wilkosz's supervisors documented a total of four errors in Wilkosz's work as a QA Inspector. ( Id. ¶¶ 11, 14.) On April 24, 1995, Wilkosz received a written warning notice for failing to spot bottles with incorrect lot numbers. (Warning Notice to Employee, Ex. B to Def.'s App.) The notice directed re-training for Wilkosz. ( Id.) On March 14, 1996, Wilkosz received a warning notice for mislabeled bottles, this one advising her that "[a]ny future errors will result in disciplinary action and/or termination." ( Id.) On July 29, 1997, Wilkosz received her third warning notice, for failing to spot bottles with incorrect lot numbers. ( Id.) This notice warned that "[f]ailure to improve will result in further discipline, up to and including discharge." ( Id.) At the time of these three errors, Geri Ringham ("Ringham") was Wilkosz's supervisor and issued the notices for each error. ( Id.)
On January 6, 1998, Wilkosz committed her fourth documented error, making a checkmark on an inspection sheet to certify that product bottles were correctly labeled during her shift, (Pl.'s 12(N) Response to Defendant's 12(M) Statement of Material Facts (hereinafter "Pl.'s Statement of Facts") ¶ 14, Ex. A to Plaintiff Rose Wilkosz's Response to Defendant's Motion for Summary Judgment (hereinafter "Pl.'s Response")), when in fact, approximately 3000 bottles of product 040-00 were mislabeled as product 037-00 during four hours of Wilkosz's shift. (Jimenez Aff. ¶ 8; Ex. 5 to Ex. B to Def.'s App.) Hector Jimenez, who had become Wilkosz's supervisor the previous year, discovered this error and, on January 9, 1998, spoke with her about it. (Def.'s Statement of Facts ¶ 15.) She admitted making the mistake. ( Id.)
In his affidavit, Jimenez states that a mislabeled product is an intolerable error because it is a violation of the Food and Drug Administration's regulations and could result in a total recall or require Hudson to completely shut down production. (Jimenez Aff. ¶ 10; Def.'s Statement of Facts ¶ 16.) Wilkosz contends that her January 1998 error was harmless because the labels were corrected before shipment. (Pl.'s Statement of Facts ¶ 85.)
Wilkosz does not state how she has personal knowledge of this.
3. Wilkosz's Suspension
For the January 6, 1998 mislabeling error, Jimenez issued a Corrective Action Form on January 23, 1998 and ordered a suspension for three days without pay from January 26 to 28, 1998. (Corrective Action Form, Ex. 5 to Ex. B to Def.'s App.) Robert Turoff ("Turoff"), the plant manager, and Althea Schuler ("Schuler"), the Vice President of Human Resources, approved the suspension and the corrective action form. ( Id.) In determining the level of discipline for Wilkosz's error, Jimenez considered her previous errors of April 24, 1995, March 14, 1996, and July 29, 1997. (Def.'s Identification of Uncontroverted Facts and Def.'s Response to Pl.'s Statement of Additional Facts (hereinafter "Def.'s Identification") ¶ 11.)
Wilkosz claims that her past errors should not have been considered because Turoff granted a "general amnesty" for all errors that occurred before October 15, 1997. (PI.'s Statement of Facts ¶ 11, Ex. A to PI.'s Response.) Turoff acknowledged that on October 15, 1997, after discovering documentation errors throughout the facility, he conducted a "Good Documentation Practices" training session for all QA Inspectors, including Wilkosz. (Turoff Aff. ¶ 6, Ex. 1 to Def.'s Reply in Support of its Motion for Summary Judgment (hereinafter "Def.'s Reply").) ( Id.) At the end of the session, Turoff announced that any incidents that had occurred prior to the date of the training session would not be considered for disciplinary action. ( Id. ¶ 8.) Turoff nevertheless maintains that he never granted a "general amnesty" to the QA Inspectors. (Turoff Aff. ¶ 9.) Instead, he intended to explain that Hudson would not retroactively discipline employees for errors for which they were not disciplined prior to October 15, 1997. ( Id. ¶ 9.) Turoff noted that he never announced that Hudson would not consider past documented and disciplined errors in imposing the appropriate level of discipline for current or future performance errors. ( Id. ¶ 10.)
Only Wilkosz uses this term.
On February 4, 1998, Jimenez issued a written Performance Correction Plan to Wilkosz. (Performance Correction Plan, Def.'s Ex. 8 to Ex. B to Def.'s App.) The Plan required Wilkosz to attend re-training on two procedures and to attend four meetings with Jimenez. ( Id.)
4. QA Inspector Dan Bethyo
After Wilkosz received her Corrective Action Form, she asked the Human Resources Department to review the appropriateness of her discipline. (In Response To: Employee Corrective Action Form, Def.'s Ex. 12 to Ex. B to Def's App.) The Human Resources Department response did not satisfy her, so Wilkosz filed an internal grievance on January 29, 1998, alleging that the company discriminated against her on the basis of sex when it suspended her. (Def.'s Statement of Facts ¶ 23; Ex. 12 to Ex. B to Def.'s App.) Wilkosz bases her discrimination claim solely on her contention that a male QA Inspector, Dan Bethyc, made at least 12 similar mistakes from 1996 to 1998, but was not disciplined. (Wilkosz Dep., at 53, Ex. A to Def.'s App); (Pl.'s Aff. ¶ 34; Pl.'s Statement of Facts ¶ 69, Ex. A to Pl.'s Response; Errors by Dan Bethyo, Ex. 24 to Ex. B to Def.'s App.) She claims to have "recorded these errors at the time of the occurrence" and "got them from entries on shift test sheets or batch records" or a document that Wilkosz refers to as the "Boo Boo Book." (Wilkosz Aff. ¶ 34.) Test sheets and batch records are generally available to employees in Wilkosz's division. (Wilkosz Dep. 62, 63.) When Wilkosz became suspicious that Bethyo was not being disciplined, she talked to Schuler, who provided Wilkosz with Bethyo's batch records. ( Id. at 66.) Without identifying its source or authorship, Wilkosz has submitted a typewritten list of Bethyo's alleged 12 errors. (Ex. 24 to Ex. B to Def's App.)
Wilkosz has not submitted copies of any test sheets or batch records.
Only Wilkosz makes reference to the Boo Boo Book (the "Book"). According to Wilkosz, the Book was a journal containing information on shifts and errors, used at Hudson for 19 years. (Wilkosz Aff. ¶ 36.) Wilkosz recalls that QA Inspectors would make a notation in the Book upon discovering an error during another inspector's shift. (Wilkosz Dep., at 67.) According to Wilkosz, the Book contained a record of Bethyo's errors, but the Book disappeared after she showed Bethyo's recorded errors to Schuler. (Wilkosz Aff. ¶ 36, Ex. C to Pl.'s Response; Pl.'s Statement of Facts ¶ 79.) Plaintiff does not state precisely when she showed the Book to Schuler, nor has either party produced any copies of pages of the Book. Bethyo's personnel file, produced to Wilkosz in discovery, revealed a single disciplinary warning issued to Bethyo for a February 26, 1996 error.
Hudson disputes that it removed the Book in order to conceal Bethyo's alleged errors. (Def.'s Identification ¶ 79.) Hudson does not explicitly acknowledge the existence of the Boo Boo Book, but in Turoff's reply memo to Wilkosz's grievance, Turoff explains that the "QA communications book" was removed as part of an overall plan to "eliminate all logbooks." (Memo from Turoff to Wilkosz of 2/16/98, Ex. 2 to Ex. C to Pl.'s Response.) According to Turoff, the logbooks are "non-controlled documents that violate the cGMP's." ( Id.) Neither party explains the meaning of the acronym "cGMP."
Of Bethyo's alleged errors, Wilkosz claims that two of those errors were similar to her January 1998 mislabeling error. On February 26, 1996, Bethyo, Wilkosz and another QA Inspector worked successive shifts during which time all three failed to spot product bottles with the wrong expiration date. (Wilkosz Dep., at 91.) Each QA Inspector was responsible for the mislabeled bottles that passed during their respective shifts. ( Id.) For this error, Ringham (Jimenez's predecessor) disciplined Bethyo by giving him a Warning Notice and a verbal reprimand. (Pl.'s Statement of Facts ¶ 69; Def.'s Identification ¶ 69.) Notably, neither Wilkosz herself nor the other QA Inspector was disciplined for that incident. (Wilkosz Dep., at 91; Wilkosz Aff. ¶ 22, Ex. C to Pl.'s Response.)
On April 19, 1996, Wilkosz claims that Bethyo failed to spot low volume in certain product bottles. (Pl.'s Statement of Facts ¶ 70, Ex. A to Pl.'s Response.) Wilkosz contends that these low volume bottles were shipped out of the facility and Hudson was required to recall and destroy the products. ( Id. ¶ 80.) Though Wilkosz claims that Hudson did not discipline Bethyo for this low volume bottle error ( id. ¶ 26), she admitted in her deposition that she lacked personal knowledge on this issue:
Neither party states the content of these bottles.
The record does not reveal the date of the recall. According to Wilkosz, approximately five or six pallets of bottle were destroyed; she does not know how many bottles are in a pallet. (Wilkosz Dep., at 262.)
Q: So what are you basing your contention that Mr. Bethyo had made mistakes in the past and was not suspended or received discipline different from yourself . . .?
A: How do I know he was not disciplined?
Q: Yes.
A: Because there would have been talk throughout the plant.
Q: So you're basing your knowledge of whether or not Mr. Bethyo was disciplined based on the rumor mill in the plant and just general discussion, things you would have heard from other people?
A: Well, it's all hearsay that he was never suspended.
(Wilkosz Dep., at 61.)
Hudson disputes that Bethyo failed to spot low volume bottles on April 19, 1996. (Def.'s Identification ¶ 70.) In any event, Jimenez states that low volume products do not affect Hudson's business to the same extent as mislabeled products. (Jimenez Aff. ¶ 11.) Thus, according to Defendant, Bethyo's alleged error was not as serious as the mislabeling errors for which Wilkosz was suspended. (Def.'s Statement of Facts ¶ 30.) Hudson also disputes that Bethyo committed the other errors Wilkosz has described, noting that Wilkosz has offered no evidence supporting her contention. (Def.'s Identification ¶ 69.) Neither party disputes that Bethyo was never suspended, nor is there any dispute that Bethyo has never committed the same mislabeling error as Wilkosz committed in January 1998. (Pl.'s Statement of Facts ¶ 86; Def.'s Statement of Facts ¶ 28; In Response To: Complaint Resolution — Form (CRF) — 2/5/98, Ex. 9 to Ex. B to Def.'s App.; Errors by Dan Bethyo, Ex. 24 to Ex. B to Def.'s App.; Turoff Aff. ¶ 7, Ex. E to Def.'s App.)
Neither party took Bethyo's deposition or submitted copies of Bethyo's personnel records.
On February 11, 1998, Wilkosz wrote another memo concerning the contentions she made in her January 1998 internal grievance. (In Response To: Complaint Resolution — Form (GRE) — 2/5/98, Ex. 9 to Ex. B to Def.'s App.) In this memo, without identifying the individual(s) involved, Wilkosz listed six errors she claims occurred between February 1996 and January 1998 but did not result in any disciplinary action. ( Id.) In his February 16, 1998 response to this memo, Turoff stated that the incidents listed by Wilkosz "do not provide any indication of discrimination." (Ex. 2 to Ex. C to Pl.'s Response.) Turoff refused to withdraw Wilkosz's suspension. ( Id.)
The record does not contain Hudson's response to Wilkosz's January 1998 grievance.
Hudson admits that other female employees complained about their treatment by Jimenez, but it is undisputed that these other employees did not complain of sex discrimination. (Def.'s Identification ¶ 92; Pl.'s Statement of Facts ¶ 92.) In April 1999, Jimenez left Hudson due to a reorganization in the Quality Assurance division. (Pl.'s Statement of Facts ¶ 95.)
B. Facts Surrounding Wilkosz's Retaliation Claim
1. Denial of vacation request in February 1998
Wilkosz claims that Hudson took several actions against her in retaliation for filing an internal grievance in January 1998. First, Wilkosz claims that she was denied a vacation day on February 13, 1998. (Def.'s Statement of Facts ¶ 31.) On February 10, 1998, Wilkosz prepared a Vacation Request Form for a vacation day for February 13. ( Id. ¶ 32.) Because Jimenez was not at his desk at the time, Wilkosz placed her request on his desk. ( Id. ¶ 34.) The next day, Wilkosz asked Jimenez about her vacation request and he denied it. (Pl.'s Statement of Facts ¶ 35; Def.'s Statement of Facts ¶ 36.)
Jimenez claims that Wilkosz's vacation request was misplaced under a stack of other papers on his desk, and that, before discovering Wilkosz's request, he personally received and approved another QA Inspector's vacation request for February 13, 1998. (Jimenez Aff. ¶¶ 13, 14, Ex. D to Def.'s App.) Jimenez admits that he discovered Wilkosz's vacation request later on February 10 but explains that at that point he had to deny her request because it would have resulted in inadequate work coverage for February 13. ( Id. ¶ 12.) He claims to have attempted to obtain additional work coverage for February 13 so that Wilkosz could take her vacation day, asking Bunda, Shreeves, and Ulander to work overtime, but all three declined. ( Id.)
In her affidavit, Wilkosz denies that Jimenez asked either Bunda or Mizak, but the only support she offers for this denial is her belief that "[i]f in fact [Jimenez asked Bunda or Mizak, they would have covered for me." (Wilkosz Aff. ¶ 23, Ex. C to Pl.'s Response.) After denying Wilkosz's vacation request, Jimenez claims to have told Wilkosz that she could take any other day off for vacation but that Wilkosz refused. (Jimenez Aff. ¶ 18.)
2. Withholding of Performance Review in 1998
Wilkosz alleges that Jimenez retaliated against her by not giving her a performance review in 1998. (Pl.'s Statement of Facts ¶ 72.) Wilkosz received satisfactory performance appraisals in 1995, 1996, 1997, and 1999. (Ex. ¶ to Ex. C to Pl.'s Response.) Wilkosz does not state when Jimenez should have conducted her 1998 review, but the court notes that previous reviews were conducted in late January to early February of each year. Wilkosz notified Human Resources when she did not receive her review but neither party states how Human Resources responded to Wilkosz. (Pl.'s Statement of Facts ¶ 72, Ex. A to Pl.'s Response.) On December 1, 1999, several months after the filing of this lawsuit, Wilkosz was given a "20 Year Service Award" for "outstanding performance since 1979." (Pl.'s Statement of Facts ¶ 99.)
3. Denial of Overtime in March 1998
Wilkosz also alleges that Hudson denied her overtime in March 1998 in retaliation for her internal complaint. (Def.'s Statement of Facts ¶ 42.) Hudson created an overtime schedule for work coverage on March 31, 1998 and April 1, 1998 for five QA Inspectors, including Wilkosz, because one Inspector was going on vacation on those two days. ( Id. ¶¶ 44, 47.) Hudson established the following schedule for Wilkosz: on March 30 and 31, 1998, Wilkosz worked from 4:00 p.m. until 4:00 a.m., a total of twelve hours; on March 31 and April 1, 1998, Wilkosz worked from 8:00 p.m. until 4:00 a.m., a total of eight hours; and on April 1, 1998, Wilkosz worked from 4:00 p.m. until 12:00 a.m., a total of eight hours. ( Id. ¶ 7.) Wilkosz and three other QA Inspectors each worked four hours of overtime between March 30 and April 1, 1998. ( Id. ¶¶ 48, 49.)
Wilkosz claims that on March 31, 1998 and April 1, 1998 she could have worked from 4:00 p.m. until 4:00 a.m. and received an additional four hours of overtime. (Wilkosz Aff. ¶ 26, Ex. C to Pl.'s Response.) Wilkosz's regular shift was from 4:00 p.m. to 12:00 a.m. ( Id.) Instead, Wilkosz claims that Jimenez changed her shift to 8:00 p.m. to 4:00 a.m., causing Wilkosz to work an irregular shift without any overtime pay. ( Id.) Wilkosz contends that she was the only QA Inspector who was required to change her regular shift hours and that this change was unnecessary. (Pl.'s Statement of Facts ¶ 49.)
Hudson claims that it assigned overtime on a rotational basis so as to provide QA Inspectors with equal amounts of overtime. (Def.'s Statement of Facts ¶ 45.) Wilkosz responds that the company has always made exceptions to rotation but offers no evidence in support. (Pl.'s Statement of Facts ¶ 45.)
4. Delay in Transferring to New Shift in September 1998
Next, Wilkosz alleges that Hudson retaliated against her by delaying her requested transfer for approximately eight weeks. (Def.'s Statement of Facts ¶ 50.) On September 9, 1998, Wilkosz bid into and accepted a transfer from the second shift to the first shift QA Inspector position. ( Id. ¶ 51.) As a result, Hudson sought to fill Wilkosz's vacated shift position and posted the shift vacancy within the company. ( Id.) When no Hudson employee bid for Wilkosz's vacated shift position, Hudson sought external candidates. ( Id.) Hudson claims that it assigned a newly hired employee to Wilkosz's vacated position on October 19, 1998 and completed the new employee's training approximately three weeks later. ( Id. ¶ 52.) Wilkosz disagrees and claims that it took Hudson eight weeks to train the new employee when it usually takes three weeks. (Pl.'s Statement of Facts ¶ 52.)
5. Assigning Overtime to Wilkosz in November 1998
Wilkosz alleges that Hudson scheduled her for overtime on November 22, 1998 in retaliation for filing her internal complaint. (Wilkosz Dep., at 184, Ex. A to Def.'s App.) On November 10, 1998, Jimenez approved Wilkosz's vacation request for Thursday, November 19 and Friday, November 20 and allowed Wilkosz to return to work on Monday, November 23. (Wilkosz Aff. ¶ 30; Vacation Authorization, Ex. 3 to Ex. C to Pl.'s Response.) On November 17, 1998, Jimenez issued an overtime schedule for Saturday and Sunday (November 21-22, 1998) which scheduled Wilkosz to work overtime on Sunday. ( Id.) Jimenez does not explain his reason for scheduling overtime to Wilkosz. Because only the Saturday overtime schedule was mandatory, Wilkosz decided on her own that she would not work on November 22, 1998. (Wilkosz Dep., at 185; Def's Statement of Facts ¶ 58.)
6. Denial of Vacation Request in November 1998
Wilkosz also alleges that Hudson retaliated against her by denying Wilkosz a vacation request for November 24, 1998. (Def.'s Statement of Facts ¶ 59.) On October 22, 1998, Wilkosz submitted a vacation request for November 24. (Wilkosz CRF, Ex. 25 to Ex. B to Def.'s App.) Jimenez initially denied the request, but after Wilkosz notified the Human Resources managers, he reversed himself and approved Wilkosz's vacation request for November 24, 1998. (Def.'s Statement of Facts ¶ 61; Pl.'s Statement of Facts ¶ 61.)
7. Assigning Overtime to Wilkosz in December 1998
Wilkosz further alleges that Jimenez scheduled her for three days of overtime between December 17-30, 1998 in retaliation for her January 1998 complaint. (Def.'s Statement of Facts ¶ 62.) On December 14, 1998, Jimenez sent out a memo scheduling only Wilkosz and another QA Inspector to cover for vacation time during the month of December. (Wilkosz CRF, Ex. 25 to Ex. B to Def.'s App.) After Wilkosz spoke to Althea Schuler about the matter, Schuler met with Turoff and they changed Wilkosz's overtime schedule to one that was agreeable to Wilkosz. (Wilkosz Dep. at 185, 186.)
8. Changing Shifts in December 1998
Wilkosz claims that Jimenez changed her shift back to the second shift from the first shift in retaliation for her internal complaint. (Pl.'s Statement of Facts ¶¶ 65, 66; Wilkosz Aff. ¶ 35, Ex. C to Pl.'s Response.) Despite a company policy that employees must be in their current position for at least six months before transferring, in December 1998, Hudson allowed a newly hired QA Inspector to transfer to another position in the company. (Wilkosz CRF, Ex. 25 to Ex. B to Def.'s App.) Jimenez then required Wilkosz to switch from the first shift to the second or third shifts to cover the position of the transferring employee. ( Id.) Wilkosz also claims that she was not the least senior employee and that Jimenez should have required a less senior employee to cover the second shift. (Wilkosz Aff. ¶ 35, Ex. C to Pl.'s Response.) At her deposition, Wilkosz admitted, however, that the actual transfer of the employee was not directly related to her January internal complaint:
Q: Just so I have it straight, you believe that the company allowed this employee to move from the second shift to calibration, apparently after having been with the company for less than six months; that allowing him to move to calibration was retaliation for your January 30th, 1998 complaint?
A: It's the events that followed after that affected me.
Q: So the actual transfer to the position — the actual transfer of this employee to the position of calibration was not in any way related to your January complaint?
A: If he had not been, I would not have had all those problems.
Q: But, again, the actual transfer was not related to your January 30 —
A: His transfer was not, but it created problems for me.
Q: Do you have any other facts or information which would support your contention that the allegation . . . was in retaliation for your January 30th, 1998 complaint?
A: Indirectly, I believe, because of what happened after that.
(Wilkosz Dep., at 205-06, Ex. 1 to Def.'s identification.)
9. Transfer to Lesser Paying Position
On February 17, 1999, Wilkosz began seeing a counselor for the stress resulting from the alleged discrimination and retaliation. (Wilkosz Dep., at 228-29.) Wilkosz's counselor advised Wilkosz to change her job position. (Wilkosz Aff. ¶ 15.) Subsequently, Wilkosz bid on the position of electronics Assembler and then interviewed for that position with Schuler and Troy Green. (Wilkosz Dep., at 225-26.) Wilkosz told Schuler and Green that she was transferring due to the stress of her job, but she did not explicitly attribute her stress to the alleged discrimination and retaliation. ( Id.) On March 9, 1999, Wilkosz transferred to her new position at a reduction in pay of $1.54 per hour. (Pl.'s Statement of Facts ¶¶ 71, 74, 77.) Wilkosz identifies the pay cut as a form of retaliation for the first time in her Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment. (Ex. B. to Pl.'s Response.)
Another employee, Pat Mizak, also transferred from the position of QA Inspector to that of Electronics Assembler but did not take a pay cut. ( Id. ¶ 78.) In her deposition, Schuler explained that Mizak sustained an injury that prevented her from performing her QA Inspector duties and was transferred without pay reduction in accordance with company policy. (Schuler Dep., at 64-66; Def.'s Identification ¶ 78.) Wilkosz denies that Mizak's transfer was due to her back problem but offers no evidence to support this denial. (Wilkosz Aff. ¶ 37, Ex. C to Pl.'s Response.)
On January 11, 1999, Wilkosz filed another internal grievance alleging five incidents of discrimination, including Hudson's delay in transferring her to a new shift in September 1998, assigning her overtime in November 1998, denying her vacation request in November 1998, assigning her overtime in December 1998, and changing her shift in December 1998. (Complaint Resolution Form, Ex. 25 to Ex. B to Def.'s App.) She sent copies of her January 1999 memo to Schuler, Jimenez, Turoff, and Irwin Rozner, her attorney. ( Id.)
On April 7, 1998, Wilkosz filed a charge with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC") alleging sex discrimination and retaliation. (Charge of Discrimination, Ex. 1 to Ex. B to Def.'s App.) Following the EEOC's issuance of a right-to-sue letter, Wilkosz brought this suit on January 20, 1999. (Pl.'s Complaint.)
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only when "the pleadings, depositions, answer to interrogatories and admissions on file together with 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); see also Flores v. Preferred Tech. Group, 182 F.3d 512, 514 (7th Cir. 1999). The Seventh Circuit has recognized that courts must apply the summary judgment standard with rigor in employment discrimination cases because "motive, intent and credibility are crucial issues." Crim v. Board of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Nonetheless, even where issues of motive and intent are involved, summary judgment may be appropriate if the plaintiff fails to present evidence demonstrating the alleged motive or intent to discriminate. See Ciff v. Board of Sch. Comm'rs, 42 F.3d 403, 409 (7th Cir. 1994).
B. Sex Discrimination Claim
A plaintiff can prove a claim of sex discrimination either by offering direct evidence of discriminatory intent or by proceeding under the indirect method of burden-shifting set forth in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-04 (1973). As Wilkosz has offered no direct evidence of sexual discrimination, she must proceed under the McDonnell Douglas burden-shifting test. Wilkosz advances a disparate treatment theory claiming that her supervisor disciplined her more harshly than Bethyo, a similarly situated male employee. To establish a prima facie case for disparate treatment based on sex, Wilkosz must show that (1) she belongs to a protected class, (2) she performed her job satisfactorily, (3) she suffered an adverse employment decision, and (4) her employer treated similarly situated employees outside of her class more favorably. See Oates v. Discovery Zone, 116 F.3d 1161, 1171 (7th Cir. 1997). Hudson does not dispute the first three elements, so the only question is whether Wilkosz has established the last element.
In disciplinary cases, the plaintiff must show that she is "similarly situated with respect to performance, qualifications and conduct." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). "This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct." Id. at 617-18. The plaintiff need not show complete identity in comparing herself to the better-treated employee, but she must show substantial similarity. See id. at 618. To establish substantial similarity, the plaintiff must show that she and the similarly situated employee engaged in conduct of "comparable seriousness." See Spath v. Hayes Wheels Int'l-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000). Wilkosz claims that two of Bethyo's errors, one in February 1996 and another in April 1996, were as serious as hers, but did not result in the same discipline.
Notably, each of these errors and resulting discipline occurred under a different supervisor and at a different time than Plaintiff's 1998 incident. A plaintiff is ordinarily required to show that a common supervisor made the relevant decision in order to establish substantial similarity. See Radue, 219 F.3d at 618. "Different employment decisions, concerning different employees, made by different supervisors are seldom sufficiently comparable to establish a prima facie case of discrimination for the simple reason that different supervisors may exercise their discretion differently." See id. Here, it is undisputed that Jimenez was a QA Manager at Hudson from July 1997 to April 1999. (Jimenez Aff. ¶¶ 1, 2.) Thus, Jimenez was not Bethyo's supervisor at the time of Bethyo's errors and did not make the decisions not to discipline Bethyo. Because different supervisors made the decisions to discipline Wilkosz and not discipline Bethyo, Wilkosz has failed to show that Bethyo is similarly situated to her.
Even if the same supervisor had been involved, the incidents at issue here would not create an inference of discrimination. Notably, the incident in February 1996 in which Bethyo, Plaintiff and a third employee all were guilty of the same mistake, resulted in discipline only of Bethyo. With respect to the April 19, 1996 incident, in which Bethyo failed to spot low volume bottles and was not disciplined for this, Hudson offers Jimenez's affidavit in support of its contention that Wilkosz's April 1996 error was more serious than Bethyo's. (Jimenez Aff. ¶ 11.) According to Jimenez, a mislabeled product is a major violation of the Food and Drug Administration's regulations and could cause Hudson to shutdown production. ( Id. ¶ 10.) Wilkosz believes that Bethyo's April 1996 error was more serious than her error because Hudson had to recall and destroy the products, but she relies only on her deposition and affidavit for support, neither of which states how she has personal knowledge of the seriousness of Bethyo's error, the product recall, or the lack of discipline given to Bethyo. (Wilkosz Dep., at 175; Wilkosz Aff. ¶ 6.) "Self-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993). A court may disregard affidavits that are based upon "speculations, hunches, intuitions, or rumors about matters remote from [personal] experience." Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991). As noted, at her deposition, Wilkosz acknowledged that her conclusion regarding Bethyo's discipline was based "on the rumor mill in the plant." As she explained, "Well, it's all hearsay that he was never suspended."
The record does not disclose a dispute of material fact on Plaintiff's claim of sex discrimination. The court grants summary judgment in favor of Defendant on this claim.
C. Retalition Claim
Wilkosz claims that Hudson engaged in several acts of discriminatory retaliation for her internal grievance in January 1998. Title VII prohibits retaliation against any employee who has engaged in activity protected by the Act. 42 U.S.C. § 2000e-3 (a). To establish a prima facie case of retaliation, Wilkosz must show that (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there is a causal connection between her protected activity and adverse employment action. Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1038 (7th Cir. 1998).
Specifically, Wilkosz claims that Hudson retaliated against her in nine separate ways: (1) denial of vacation in February 1998, (2) no performance review, (3) denial of overtime in March 1998, (4) delay in transfer to new shift in September 1998, (5) interference with vacation in November 1998, (6) initial denial of vacation in November 1998, (7) scheduling overtime in December 1998, (8) changing shift hours in December 1998, and (9) decrease in pay upon transferring to a new position in March 1999. Hudson argues that Wilkosz has failed to demonstrate the second and third elements of her prima facie case of retaliation.
1. Adverse Employment Action
The Seventh Circuit defines "adverse employment action" broadly to include not just loss or reduction of pay or monetary benefits. See Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Adverse job action can encompass other forms of adversity as well. Id. Nevertheless, "not everything that makes an employee unhappy is an adverse action." Id. In order to constitute a materially adverse change in the terms and conditions of employment, the change must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). The adverse action must have some tangible job consequence. See Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998). Examples include termination of employment, demotion evidenced by a decrease in wage or salary, or a less distinguished title, a material loss of employment benefits, or significantly diminished material responsibilities. See Crady, 993 F.2d at 136. The list of examples is obviously not exhaustive.
First, Wilkosz contends that Jimenez's denial of her vacation request in February 1998 was a materially adverse action. Wilkosz cites no case law on whether the denial of a vacation request constitutes an adverse action and the court has found only one case that has decided this issue. In Rice v. Central DuPage Hospital, the plaintiff sued her employer for retaliation based upon her opposition to her employer's allegedly discriminatory treatment of a coworker. No. 96 C 2405, 1999 WL 199241, at *1 (N.D. Ill. Mar. 31, 1999). One of the alleged acts of retaliation was the denial of a vacation request. See id. at *5. The court held that the denial of a single vacation request was not a material loss of benefits. See id. It was undisputed that the supervisor had the authority to deny the request and the plaintiff presented no evidence that subsequent vacation requests were denied. See id. Like the supervisor in Rice, Jimenez had the authority to deny Plaintiff's vacation request. Like the plaintiff in Rice, Wilkosz presented no evidence that subsequent vacation requests were denied. In fact, Jimenez approved subsequent vacation requests submitted by Wilkosz for November 19, 20, and 24, 1998. (Pl.'s Statement of Facts ¶¶ 61, 91.) Nor did Wilkosz cast any doubt on Jimenez's explanation for the vacation denial in February: he had already granted another employee's vacation request for the same day.
Second, Wilkosz did not suffer an adverse action when Jimenez withheld her 1997 performance review due in early 1998. This Circuit has held that an employer's undeservedly poor evaluations of an employee do not constitute an adverse employment action. See Smart, 89 F.3d at 442. In comparison to an unjustified negative evaluation, the withholding of an evaluation is even less adverse. Wilkosz has not alleged that any negative consequences have flowed from the lack of a performance review, and Jimenez gave Wilkosz a satisfactory performance review the next year. (2/19/99 Hourly Employee Performance Appraisal, Ex. C to Pl.'s Response.)
Third, Wilkosz contends that Jimenez changed her regular shift to irregular hours in order to deprive her of overtime in March 1998. Wilkosz admits that she and three other QA Inspectors received four hours of overtime between March 31 and April 1, 1998. (Def.'s Statement of Facts ¶¶ 48, 49.) To the extent that Wilkosz is claiming that her shift change is an adverse employment action, this court finds that it is not. Wilkosz's regular shift was from 4:00 p.m. to 12:00 a.m. and Jimenez changed her shift to 8:00 p.m. to 4:00 a.m. for only one day. (Def.'s Statement of Facts ¶ 47.) The next day, Wilkosz returned to her regular shift. ( See id.) The shift change was a "mere inconvenience" and did not result in a change in pay, job responsibilities, number of hours worked, or other relevant job aspects. Thus, the first three alleged acts of retaliation do not rise to the level of an adverse employment action.
2. Causation
Hudson further argues that Wilkosz has failed to establish a causal connection between her protected activity and the alleged acts of retaliation. In order to demonstrate a causal link, Wilkosz must demonstrate that Hudson would not have disciplined Wilkosz but for her protected activity. See King v. Preferred Tech. Group, 166 F.3d 887, 892 (7th Cir. 1999). The Seventh Circuit has held that a "telling" temporal sequence — e.g. the employer's adverse action following shortly after the employee's protected activity — can establish the necessary causal link. See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998). That causal link weakens, however, as the period of time separating the two events lengthens. Id. (five months too long); Salvato v. Illinois Dept of Human Rights, 155 F.3d 922, 925 (7th Cir. 1998) (six months too long); Hughes v. Erwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (four months too long). Nevertheless, a plaintiff will not be precluded from establishing a prima facie case of retaliation because of a lack of temporal proximity so long as she offers additional proof of a causal nexus. See Davidson, 133 F.3d at 511.
Wilkosz's remaining allegations of retaliation occurred at least seven months after her January 1998 grievance. First, Hudson's alleged five-week delay of Wilkosz's transfer occurred seven months after she filed her grievance. (Def.'s Statement of Facts ¶ 50.) Second, Jimenez's interference with Wilkosz's vacation and his initial denial of her vacation request both occurred in November 1998, ten months after her grievance. Id. ¶¶ 55, 59.) Third, a period of eleven months passed before Jimenez assigned Wilkosz overtime and Hudson changed her shift in December 1998. ( Id. ¶¶ 62, 65.) Finally, Wilkosz's transfer to an Electronics Assembler position and corresponding pay cut occurred in March 1999, 14 months after her grievance. ( Id. ¶ 4.) Thus, Plaintiff fails to establish a "telling" temporal sequence of events to establish the causal link between her internal complaint and Hudson's alleged retaliatory acts.
Wilkosz also has not presented any other evidence sufficient to support an inference of a causal link. A court will grant summary judgment where the "plaintiff presents no indication of defendant's motive or intent" to support her position. McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir. 1989). For example, with regard to her delayed transfer in September 1998, Wilkosz admitted in her deposition that she "[has] no idea why it took that tong" to transfer her and that it was her "belief" that it usually does not take eight weeks to transfer an employee to a new shift. (Wilkosz Dep., at 179, 181-82.) Plaintiff also admitted that she did not know Jimenez's reason for the overtime schedule in November 1998. (Wilkosz Dep., at 183-84.) As for Jimenez's initial denial of her vacation request in November 1998, Wilkosz only stated that it was "obvious" that the denial was in retaliation to her internal complaint. (Wilkosz Dep., at 191.)
Finally, Wilkosz contends Hudson retaliated against her by decreasing her wage upon transfer when it did not decrease the wage of Mizak, a similarly situated employee. Assuming Plaintiff has established a prima facie case of retaliation for this act, Hudson has offered a legitimate, non-discriminatory reason for the difference: Mizak was transferred due to an injury, and company policy required that her salary not be reduced. (Schuler Dep., at 64-66, Ex. 2 to Def.'s Reply.) Wilkosz asserts that Mizak's transfer had nothing to do with a back problem, but fails to show how she has personal knowledge of this. (Wilkosz Aff. ¶ 37.) Thus, Wilkosz has failed to show that Hudson's legitimate non-discriminatory reason is a pretext for retaliatory conduct. To the extent Wilkosz has suggested that her transfer was in fact involuntary-akin to a "constructive discharge" from the QA inspector position — that claim also fails; in order to prove that she was constructively demoted, Plaintiff must first establish that the conditions of which she complains themselves violate Title VII. Cf. Vitug v. Multistate Tax Commission, 88 F.3d 506, 517 (7th Cir. 1996) ("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.")
Wilkosz has failed to establish a dispute of material fact concerning her claims of retaliation. The court grants summary judgment in favor of Hudson on those claims.
CONCLUSION
For the reasons described above, Defendant's motion for summary judgment (Doc. No. 9-1) is granted. Defendant's motion to strike certain parts of Plaintiffs affidavit (Doc. No. 18-1) is granted in part and denied in part as moot. Judgment is entered in favor of Defendant Hudson.