Butler-Burns v. City Colleges of Chicago

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

BEVERLY BUTLER-BURNS, )

)

Plaintiff, ) Case No. 16 C 4076

)

v. ) Judge Virginia M. Kendall

)

BOARD OF TRUSTEES OF THE )

COMMUNITY COLLEGE DISTRICT NO. 508, )

COUNTY OF COOK, STATE OF ILLINOIS, )

a/k/a CITY COLLEGES OF CHICAGO )

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

Plaintiff Beverly Butler-Burns brings suit against her former employer Defendant City

Colleges of Chicago alleging that she was discriminated against and ultimately terminated on the

basis of her age and race in violation of the Age Discrimination in Employment Act, 29 U.S.C.

§ 621 et seq. (Count I); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

(Count II); and 42 U.S.C. § 1983 (Count III). Currently before the Court is Defendant’s motion

for summary judgment. (Dkt. 53). For the reasons set forth below, Defendant’s motion is

granted in part and denied in part.

BACKGROUND1

Defendant is a community college district established pursuant to the Illinois Public

Community College Act, 110 ILCS 805/1-1 et seq., that operates seven community colleges in

Cook County, Illinois. Plaintiff, an African-American woman, began working for Defendant in

1 The Court takes the relevant facts from the parties’ Local Rule (“LR”) 56.1 statements of undisputed

material facts and supporting exhibits: (1) Defendant’s LR 56.1 Statement of Undisputed Material Facts

in Support of its Motion for Summary Judgment (Dkt. 55), Plaintiff’s LR 56.1(b)(3)(B) Response to

Defendant’s Statement of Facts in Support of its Motion for Summary Judgment (Dkt. 56), Plaintiff’s LR

56.1(b)(3)(C) Statement of Additional Facts Requiring Denial of Defendant’s Motion for Summary

Judgment (Dkt. 57), and Defendant’s Response to Plaintiff’s Statement of Additional Facts (Dkt. 62).

The following facts are undisputed except where otherwise noted.

November 2010 when she was 56. Plaintiff first held two part-time positions at the Harold

Washington Institute before she accepted a position as Labor & Employee Relations Specialist-

DO (“LERS”), a full-time position in Human Resources at the District Office, in December

2012. Her starting salary was $60,000. (Dkt. 55) at ¶¶ 14, 15. As a LERS, Plaintiff was hired

and supervised by Aaron Allen, an African-American man over forty years of age. Allen

reported to Stephanie Tomino, the Vice Chancellor of Human Resources.

The job description for the LERS position listed eleven “qualifications” for the position,

including:

1. Master of Science degree from an accredited college or university with a

concentration in Labor Relations, Employee Relations, Human Resource

Administration or similar field. Juris Doctorate preferred, or a combination of

training and experience required.

2. At least (3) three years of professional experience in labor relations, employee

relations, or human resources administration required.

3. Must possess familiarity with employment laws and the ability to assess evidence

and arrive at a fair conclusion in accordance with the District’s Equal Opportunity

Policy and other policies, work rules, and applicable laws.

* * *

6. Must possess excellent verbal and written communication skills.

(Dkt. 55-2) at 47–49 (City Colleges of Chicago Job Description for Labor & Employment

Relations Specialist-DO Revised 7/31/12); see also id. at 50–52 (City Colleges of Chicago Job

Description for Labor & Employment Relations Specialist-PT Revised 2/16/12) (listing the same

qualifications). Plaintiff has a Master’s Degree in Human Resource Management and

Development, and she held human resource management positions at CNA Financial, Coca-

Cola, and Sherwin Williams continuously from 1996 to 2010. (Dkt. 62) at ¶¶ 2–3; see also (Dkt.

62-1) at 22–24 (Butler-Burns resume). The parties do not dispute that Plaintiff met the minimum

qualifications for the LERS position. See (Dkt. 62) at ¶ 1.

During Plaintiff’s time as a LERS, three other employees also held this position:

Konstantina Christopoulos, Sarah Levee-Nau, and Leia DeVita. Christopoulos was a part-time

LERS who was hired in 2009 at a salary of $40/hour. She was 28-years old when she was hired

(making her 33 when Plaintiff was discharged in September 2014), and she is not African

American. In addition, Christopoulos has a law degree. (Dkt. 55) at ¶¶ 8, 10; (Dkt. 56) at ¶ 10.

Levee-Nau was hired as a full-time LERS with a starting salary of $72,000 in March 2013, when

she was 35-years old (making her 36 when Plaintiff was discharged). Levee Nau is not African

American and she has a law degree. (Dkt. 55) at ¶ 17; (Dkt. 56) at 17. Finally, DeVita was hired

as a full-time LERS with a starting salary of $60,000 in April 2013, when she was 27-years old

(making her 28 when Plaintiff was discharged). DeVita is not African American and she has a

law degree. (Dkt. 55) at ¶ 18; (Dkt. 56) at ¶ 18. Accordingly, in September 2014, Plaintiff was

the longest serving full-time LERS, and she was also the only LERS without a law degree.2

Among the job responsibilities for a LERS were investigating alleged violations of

Defendant’s Equal Opportunity policy, investigating employee relations complaints, preparing

investigative reports with findings and recommended outcomes, and conducting supervisory

training. (Dkt. 55) at ¶ 7. Although Plaintiff did not receive any feedback critical of her work or

behavior and, despite Defendant’s admission in this proceeding that Plaintiff was satisfactorily

performing her job duties ((Dkt. 62) at ¶ 12), Defendant contends that her performance was

substandard. Specifically, Allen testified in his deposition that he believed that she had a “lower

level of analytical skills,” she did not grasp employment laws, she was a “weaker performer”

than her peers, her writing was not as focused or accurate as it should have been, and she was not

2 Because all three LERS are more than 10 years younger than Plaintiff, they are “substantially younger”

for purposes of the ADEA. See Duncan v. Fleetwood Motor Homes of Ind., Inc., 518 F.3d 486, 493 (7th

Cir. 2008) (citing Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 322 (7th

Cir. 2003)).

performing as much work as the other LERS. Id. at ¶¶ 23–25, 41. Accordingly, Allen chose not

to assign certain duties to Plaintiff, including grievance hearings and contract negotiations.

Allen testified that he felt that Plaintiff could not “competently perform” those duties and/or that

Plaintiff had demonstrated a certain lack of abilities and skills. Id. at ¶ 23. On at least one

occasion, Allen told Tomino that Plaintiff was slow to complete her investigation reports.

Tomino as well believed that Plaintiff had a low skill level and was a weak LERS. Id. at ¶ 27.

On June 16, 2014, Defendant hired Dewayne Howard, an African American man over

forty, as Associate Vice Chancellor of Human Resources. In this role, Howard supervised Allen

and reported to Tomino. Id. at ¶ 28. His primary oversight included (1) labor relations and

(2) talent (i.e., recruitment), including talent acquisition and performance management. Id. at

¶ 32. At some point, Howard decided that he wanted to “strengthen the talent side of his team in

order to build up certain areas including the performance review process.” Id. at ¶ 33. This

involved “allocating additional resources to talent management and acquisition rather than Labor

& Employment Relations.” Id. at ¶ 44.

In September 2014, Defendant announced that it needed to eliminate one LERS position

in the District Office. Howard engaged in a staff review, during which he met with all of the

office employees including Plaintiff. Defendant asserts that Howard was not left with a “strong

impression” of Plaintiff and that he reviewed her work product and found it lacking. Id. at

¶¶ 35–36. After speaking with Allen, Howard decided to eliminate Plaintiff’s position. Tomino

approved of the decision. (Dkt. 55) at ¶ 45. On September 25, 2014, Allen and Howard told

Plaintiff that her position was being eliminated. Id. at ¶ 47. She was 60 and her salary was

$61,500 at that time. In a November 10, 2014 meeting, the Board of Trustees officially approved

of Plaintiff’s termination. Id. at ¶ 48. No other Human Resources Department employees were

separated at this same time, and Plaintiff’s open cases were reassigned to the other, non-African

American and substantially younger LERS. Id. at ¶ 50; (Dkt. 62) at ¶ 25. Not long after

Plaintiff’s position was eliminated, on October 17, 2014, Leeve-Nau was promoted to Associate

Director of Labor & Employee Relations (a newly created position) and her salary was increased

to $85,000 annually. (Dkt. 55) at ¶ 51; (Dkt. 57) at ¶ 29.

On October 31, 2014, Defendant posted a job opening for a new position in the Direct

Office titled Human Resources Coordinator. Plaintiff contends that this position involved some

of her job duties, although Defendant asserts that it did not involve any of the substantive duties

of a LERS. Nicole Dax, a 29-year old white female who graduated law school in 2013 was hired

for this position at a starting salary of $45,000 in January 2015, and she was promoted to full-

time LERS on July 13, 2015 by Allen, Howard, and Tomino, at which time her salary was raised

to $54,000. (Dkt. 55) at ¶¶ 56, 57; (Dkt. 56) at ¶ 57; (Dkt. 57) at ¶ 31.

In addition to Leeve-Nau’s promotion and Dax’s hire and promotion, multiple other

personnel changes occurred among the LERS after Plaintiff’s discharge. DeVita—who had been

having performance issues and who had been counseled and coached by Allen and Tomino—and

Christopoulos both resigned in early 2015. (Dkt. 55) at ¶¶ 60–61. Defendant hired another

white female in her 20s, Logan Deane, as a full-time LERS in September 2015. Deane had

graduated from law school in May 2015. Id. at ¶ 63; (Dkt. 62) at ¶ 11.

Plaintiff filed a timely charge of discrimination with the EEOC, and she was issued a

right to sue letter on January 4, 2016. Plaintiff’s second amended complaint brings three claims

against Defendant: (1) age discrimination, (2) race discrimination in violation of Title VII, and

(3) race discrimination in violation of 42 U.S.C. § 1983. See (Dkt. 24). Defendant has moved

for summary judgment on all counts. (Dkt. 53).

LEGAL STANDARD

Summary judgment is proper where “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R.

Civ. P. 56(a). A genuine issue of material fact exists if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). The party seeking summary judgment has the burden of establishing the lack of

any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In

determining whether summary judgment is appropriate, the Court must construe all facts in a

light most favorable to the non-moving party and draw all reasonable inferences in that party’s

favor (here, Plaintiff). Majors v. Gen. Elec. Co., 714 F.3d 527, 532 (7th Cir. 2013) (citation

omitted). Courts do not weigh the evidence or make credibility determinations when deciding

motions for summary judgment. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704–

05 (7th Cir. 2011).

DISCUSSION

A. ADEA and Title VII Claims (Counts One and Two)

Title VII prohibits employers from discriminating against “any individual with respect to

his compensation, terms, conditions or privileges of employment, because of such individual’s

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Likewise, the ADEA

prohibits employers from discriminating against individuals who are over forty-years old on the

basis of age. 29 U.S.C. § 623(a)(1). At summary judgment, district courts consider the evidence

“as a whole” to determine “whether the evidence would permit a reasonable factfinder to

conclude that the plaintiff’s [race or age] . . . caused the discharge or other adverse employment

action.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). A court may review

the evidence through the McDonnell Douglas burden-shifting framework; but ultimately, the

court must conduct a cumulative review of the evidence to determine whether a reasonable

factfinder could find that Plaintiff’s age or race was the cause of the adverse employment action.

See David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017).

1. McDonnell Douglas

“Generally speaking, under McDonnell Douglas, the plaintiff has the initial burden of

establishing that ‘(1) she is a member of a protected class, (2) she performed reasonably on the

job in accord with her employer[’s] legitimate expectations, (3) despite her reasonable

performance, she was subjected to an adverse employment action, and (4) similarly situated

employees outside of her protected class were treated more favorably by the employer.’” Id. at

225 (citation omitted). This is the same standard that applies to a regular reduction in force (i.e.,

layoff); when a RIF takes place but is implemented in a discriminatory fashion, the plaintiff’s

burden is to “show (in addition to the first two elements of the McDonnell Douglas claim) that

she was discharged and that other, similarly situated employees who were not members of the

plaintiff’s protected class were treated more favorably.” Bellaver v. Quanex Corp., 200 F.3d

485, 494 (7th Cir. 2000). “A RIF occurs when an employer permanently eliminates certain

positions from its workforce.” Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 693

(7th Cir. 2000). When a plaintiff has been laid off as part of a “mini–RIF” (or a single

discharge)—which Defendant argues happened here (see (Dkt. 54) at 7)—“the fourth prong of

the plaintiff’s prima facie case is satisfied when the plaintiff demonstrates that her duties were

absorbed by persons not in the protected class” regardless of whether those persons were

similarly situated to the plaintiff or not. Bellaver, 200 F.3d. at 495 (“The plaintiff in a single-

discharge case does not need to make a showing that ‘similarly situated’ employees were treated

better because the inference of discrimination arises from the fact that they were constructively

‘replaced’ by workers outside of the protected class); Merillat v. Metal Spinners, Inc., 470 F.3d

685, 689–90 (7th Cir. 2006). If the plaintiff satisfies that burden of proving all four elements,

“then the employer must articulate a legitimate, nondiscriminatory reason for the adverse

employment action, at which point the burden shifts back to the plaintiff to submit evidence that

the employer’s explanation is pretextual.” David, 846 F.3d at 225 (citation omitted). Plaintiff

easily satisfies the two prongs of the prima facie case: she was 60 when Defendant terminated

her. Moreover, Defendant has admitted that Plaintiff was performing her job satisfactorily. See

(Dkt. 62) at ¶ 12; (60-9) (Respondent’s Verified Response) at 2, 3. Defendant argues that

Plaintiff cannot satisfy the fourth element of the test.

a. Similarly Situated Employees

Deciding whether employees are similarly situated is a “flexible, common-sense, and

factual” inquiry. David, 846 F.3d at 225 (citation omitted). To make this showing, a plaintiff

must present a comparator who is similar enough “to eliminate confounding variables, such as

differing roles, performance histories, or decision-making personnel.” Filar v. Board of Educ. of

City of Chicago, 526 F.3d 1054, 1061 (7th Cir. 2008). Relevant factors include “whether the

employees (i) held the same job description, (ii) were subject to the same standards, (iii) were

subordinate to the same supervisor, and (iv) had comparable experience, education, and other

qualifications—provided the employer considered these latter factors in making the personnel

decision.” Warren v. Solo Cup Co., 516 F.3d 627, 631 (7th Cir. 2008) (quotation omitted).

When looking for a similarly situated employee, Plaintiff “need not present a doppelganger who

differs only by having remained in the employer’s good graces.” Filar, 526 F.3d at 1061.

Here, Plaintiff points to the substantially younger, non-black LERS as her comparators:

Christopoulos, Leeve-Nau, and DeVita—all three of whom held the LERS position at the same

time as Plaintiff, meaning that they had the same job description and performance standards

(noting that Christopoulos, who was a part-time employee, worked different hours than Plaintiff)

and they were all subordinate to Allen, Howard, and Tomino. Still, Defendant argues that these

three women are not suitable comparators because the all had law degrees (while Plaintiff did

not) and therefore Plaintiff “lacked the analytical and writing skills that one acquires with a JD.”

(Dkt. 54) at 8. However, the comparator test is multifaceted, and the simple fact that Plaintiff,

who holds a Master’s Degree in Human Resources, does not have the same level of legal training

that Christopoulos, Levee-Nau, and DeVita had is not enough on its own for the Court to

conclude that those three were not similarly situated to Plaintiff. This is not a case where the

education and/or skill level of the plaintiff and the proposed comparators are so different as to

make them incomparable, see, e.g., Warren, 516 F.3d at 631 (in disparate pay case, plaintiff had

a high school diploma and proposed comparator had a bachelor’s degree, two master’s degrees,

and superior computer skills), or where the plaintiff has conceded a particular lack of relevant

skills that his comparators possessed. See, e.g., Darbha v. Capgemini Am. Inc., 492 F. App’x

644, 647 (7th Cir. 2012) (Darbha conceded that he did not have the computer skills needed for

the available projects at Capgemini). Not only that, by the phrasing of its argument, Defendant

simply assumes that anyone with a law degree has “superior skills” and therefore is

automatically a substantially more qualified LERS. But Defendant’s assumption is not

supported by any other evidence in the record and it is not sufficient establish for purposes of

summary judgment that the three comparators actually possessed skills that were so superior to

Plaintiff as to make them incomparable. Accordingly, common sense dictates that the three

LERS were similarly situated to Plaintiff in many critical respects, and therefore, Plaintiff has

submitted sufficient evidence to make out a prima facie case of age and/or race discrimination

under the traditional RIF analysis. Even if the Court were to accept Defendant’s argument that a

law degree makes the three retained LERS incomparable to Plaintiff, Plaintiff has also submitted

sufficient evidence to make out the less rigorous prima facie case in the mini-RIF setting for

which Defendant advocates because there is evidence in the record that Plaintiff’s job duties

were reallocated among the remaining LERS, all three of whom were outside the protected

classes. See (Dkt. 55) at ¶ 50.

b. Pretext

After establishing a prima facie case of age discrimination, Plaintiff must supply

evidence to allow a reasonable jury to determine that Defendant’s reason for her layoff was mere

pretext. “The question is not whether the employer’s stated reason was inaccurate or unfair, but

whether the employer honestly believed the reason it has offered for the adverse action.” Grant

v. Trs. of Ind. Univ., 870 F.3d 562, 570 (7th Cir. 2017) (citation omitted); accord Merillat, 470

F.3d at 692–93. “A plaintiff can do this by showing that the defendant’s reason for the adverse

employment action (1) had no basis in fact; (2) did not actually motivate the adverse

employment action; or (3) was insufficient to motivate the action.” Bates v. City of Chicago, 726

F.3d 951, 956 (7th Cir. 2013) (citing Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006

(7th Cir. 2002)). Further, the employer’s justification need not be a “good reason,” but merely

an age-neutral or race-neutral one. Warren, 516 F.3d at 630 (citations omitted). Here, there are

several disputes regarding (1) the necessity of eliminating a LERS position in order to allow an

increase in staffing on the talent side of the office, (2) the basis for Allen’s, Howard’s, and

Tomino’s beliefs concerning Plaintiff’s performance, and (3) Defendant’s statement that Plaintiff

“lacked work”—disputes that could lead a reasonable jury to find that Defendant’s proffered

reason for termination was pretextual. When reviewing the facts in the light most favorable to

Plaintiff, these disputes preclude summary judgment.

As a threshold matter, Defendant has provided a number of explanations for Plaintiff’s

termination. According Defendant’s January 2015 position statement to the EEOC, Plaintiff’s

position was eliminated “for Department efficiency and lack of work because there was no

demand for personnel training at the District Office and [Plaintiff] did not conduct grievance

hearings as did the other three Labor Relations Specialists who held law degrees.” (Dkt. 60-10)

(Respondent’s Statement of Position) at 3; (Dkt. 62) at ¶ 26. In the current litigation,

Defendant’s explanation for Plaintiff’s termination has been that it was conducting a small

reduction-in-force on the human resources side of the District Office to open up space and “free

up resources” for increased staffing on the talent side of the office and Plaintiff was the lowest

performing LERS. (Dkt. 54) at 9, 12; see also (Dkt. 61) at 14 (explaining the reason for the

position elimination as “to reallocate resources” and describing Plaintiff has having “weak

analytical skills and lackluster work performance”). “As a general rule, a reasonable trier of fact

can infer pretext from an employer’s shifting or inconsistent explanations for the challenged

employment decision.” Castro v. DeVry Univ., Inc., 786 F.3d 559, 577 (7th Cir. 2015); see also

Simple v. Walgreen Co., 511 F.3d 668, 671 (7th Cir. 2007) (“The inconsistency is suggestive of

pretext and thus is evidence of discrimination.”). But these “explanations must actually be

shifting and inconsistent to permit an inference of mendacity.” Schuster v. Lucent Techs., Inc.,

327 F.3d 569, 577 (7th Cir. 2003); see Rand v. CF Indus., 42 F.3d 1139, 1146 (7th Cir. 1994).

Here, the proffered reasons are inconsistent and therefore create an inference of pretext for trial.

In any event, Plaintiff has pointed to enough evidence in the record to identify weaknesses,

implausibilities, inconsistencies, and contradictions in all of the proffered reasons. See Coleman

v. Donahoe, 667 F.3d 835, 852–53 (7th Cir. 2012) (citation omitted).

Looking first at the budgetary rationale for Plaintiff’s termination, Defendant maintains

that it wanted to “re-direct funds toward talent acquisition and management” or “funnel more

resources into that area.” See (Dkt. 54) at 13; (Dkt. 61) at 7. In support of this argument,

Defendant points to documents setting for the budget for the District Office Human Resources

Department. (Dkt. 61) at 7–8. But these documents only state the total amount budgeted for all

salaries by year, that is, they do not break out the salaries of the Department’s subgroups (labor

relations vs. talent) so as to reflect the reallocation of resources Defendant for which argues. See

(Dkt. 62-6). Not only that, the documents reflect that although the budget for salaries decreased

by more than $500,000 from FY13 to FY14, it increased by more than $350,000 from FY14 to

FY15, id., and therefore these documents provide little, if any, support for Defendant’s rationale.

Further, Plaintiff points to evidence that, within one month of her termination, Leeve-Nau was

given a more than $10,000/year raise and, within four months of her termination, Dax was

brought on as a Human Resources Coordinator (a newly created position) at $45,000/year, only

to be promoted to LERS at $54,000/year six months later. Both actions equal more than

Plaintiff’s ending salary of $61,500. As an additional point on this topic, due to the multiple

personnel changes that occurred among LERS in 2015, the parties dispute whether Plaintiff was

replaced by someone outside of the protected class—either Dax or Deane.

Michas v. Health Cost Controls of Ill., Inc., cited by Defendant, is distinguishable. (Dkt.

54) at 13. There, the employer put forth evidence to support its claim that its financial interests

would be served by reducing expenses in departments considered extraneous (including the legal

department where the employee worked) before being acquired, including deposition testimony

regarding the threat of lost business, stagnant net income for a year at issue, and testimony about

the need to cut costs in the face of the potential acquisition. 209 F.3d at 694–95. Despite the

plaintiff’s circumstantial evidence that his termination was based on a discriminatory motive,

including evidence that three new employees (one that directly replaced the plaintiff, but who

was also part of the protected class) were hired directly after the plaintiff’s discharge, the

appellate court concluded that the employee had failed to present evidence that the employer

“did not believe that it needed to cut costs where it could.” Id. at 695. By contrast, Defendant

here only argues that it wanted to shift resources from one side of its Human Resources

Department to another, but it has not provided any evidence akin to that presented in Michas.

The second rationale provided for Plaintiff’s termination was that her three managers

shared an honest belief that she was the weakest performer of the LERS on staff. (Dkt. 54) at 9–

10. Here, too, factual disputes, viewed in the light most favorably to Plaintiff, prevent summary

judgment. For example, Defendant has put forth testimony from all three managers that they

believed that Plaintiff had “a lower level of analytical skills than the other [LERS], [] her writing

was not as focused or as accurate as it could have been” (Allen), she was a weak employee and

could not handle collective bargaining agreement negotiations because she “never experienced

her having any technical knowledge, aptitude, interest, commentary or anything related to a

CBA” (Tomino), and that she had writing deficiencies (Howard). See (Dkt. 55) at ¶¶ 24, 25, 41;

(Dkt. 60-3) (S. Tomino Dep.) at 185:2–17; (Dkt. 60-5) (D. Howard Dep.) at 80:17–82:14. In

response, Plaintiff has supplied evidence indicating that her managers’ beliefs had no basis in

fact, but instead were based on unverified assumptions—particularly evidence and testimony that

these feelings were never memorialized on performance reviews or otherwise communicated to

her and that her managers could not articulate the bases for their feelings. See (Dkt. 56) at ¶¶ 23,

24, 27, 36; see also (Dkt. 60-1) (A. Allen Dep.) at 31:1–17; (Dkt. 60-3) at 81:14–20, 82:3–11

(Tomino testified that she never gave Plaintiff “any indication that she was not meeting the

requirements of her job” or had direct conversations about Plaintiff’s work quality and output

quantity, even though Tomino thought such conversations were “warranted”); see also id. 185:2–

17 (testifying that she thought Plaintiff could not handle contract negotiations but also that she

never inquired as to Plaintiff’s CBA experience); (Dkt. 60-5) at 80:17–82:14 (Howard testified

that he “didn’t know specifically” what Plaintiff’s writing deficiencies were and that he did not

“believe [he had] a basis” for saying that her performance was worse than anyone else’s).

As further evidence that Defendant’s belief about Plaintiff’s performance relative to the

other LERS was not honestly held, Plaintiff argues that DeVita had actual and well known

performance issues in 2014, although the exact start date of the performance issues is in dispute.

The parties agree, however, that DeVita was placed on a formal performance improvement plan

in December 2014. (Dkt. 55) at ¶ 58; (Dkt. 56) at ¶ 58. And in response to Defendant’s

termination rationale that Plaintiff was not performing contract negotiation work, Plaintiff points

to evidence that Allen deliberately did not assign her such work and also Defendant’s admission

that DeVita and Christopoulos also did not participate in contract negotiations. See (Dkt. 62) at

¶¶ 13, 16. Thus, Plaintiff has cast sufficient doubt on whether Defendant whether Defendant

honestly believed that she was a weak link. This issue will be for the jury to decide.

Third, the parties disagree whether Plaintiff had a light workload. Specifically, although

Allen testified that he did not “believe” that Plaintiff was performing as much work as the other

LERS (see (Dkt. 56) at ¶ 25), Plaintiff points to evidence that Allen had not compared the

number of hours worked by the LERS and could not offer a comparison when asked at his

deposition. See (Dkt. 60-1) at 99:14–101:24. In fact, Plaintiff argues that she had a

comparatively large work load. (Dkt. 56) at ¶ 25; see also (Dkt. 60-2) at CC004009 (in October

2014, noting that Plaintiff had 15 cases and the other LERS had 23 cases combined). But see

(Dkt. 62-5) at CC006655 (noting that as of September 26, 2014, Plaintiff had 21 open cases, 13

of which were “finished”). Further, Tomino testified that she did not know how many cases

Plaintiff handled relative to her peers. (Dkt. 56) at ¶ 38; (Dkt. 60-3) at 119:17–120:3.

All in all, these disputes, if resolved in Plaintiff’s favor, could convince a jury that

Defendant’s reallocation-of-resources, weak-performance, and lack-of-work rationales for

discharging Plaintiff were pretext for age and/or race discrimination. See Coleman, 667 F.3d at

852–53.3

2. Cumulative Review

Assessing the evidence in the undisputed record cumulatively leads to the same

conclusion as reviewing the evidence through the McDonnell Douglas framework: Plaintiff’s

claims for age discrimination under the ADEA and race discrimination under Title VII easily

survive summary judgment. There are simply too many factual issues for trial to allow the Court

to grant summary judgment on these claims at this time.

B. Race Discrimination in Violation of 42 U.S.C. § 1983 (Count Three)

Plaintiff also brings a § 1983 claim, parallel to her Title VII claim, against Defendant for

race discrimination in violation of her Fourteenth Amendment rights when she was

discriminatorily compensated less and selected for termination over her white peers. Section

3 Defendant further argues its decision to terminate Plaintiff was race and age neutral is because Allen and

Howard are both African American and over 40, and even though Tomino is not African American, she

had recently recruited and hired Howard, who is. But those facts are not determinative, particularly in

light of the other evidence produced in this case. See Baker v. Macon Res., Inc., 750 F.3d 674, 677 (7th

Cir. 2014) (rejecting the argument that because decisionmaker was four years older than plaintiff, an

inference of age discrimination was implausible, and finding that any inferences about decisionmaker’s

motivation were for the trier of fact). The same goes for Defendant’s argument that Allen could not have

discriminated against Plaintiff because he hired her. See Herrnreiter v. Chi. Housing Auth., 315 F.3d 742,

747 (7th Cir. 2002) (same-actor “presumption” of non-discrimination is for the trier of fact).

1983 provides that any person who, under the color of law, causes the deprivation of “any rights,

privileges or immunities secured by the Constitution and laws, shall be liable to the party

injured.” 42 U.S.C. § 1983. “[I]ndividual liability under § 1983 [generally] requires ‘personal

involvement in the alleged constitutional deprivation.’” Minix v. Canarecci, 597 F.3d 824, 833

(7th Cir. 2010) (citation omitted). Plaintiff does not name any individual defendants.

Nevertheless, under Monell, a municipality, like Cook County, can be liable under § 1983 for a

constitutional violation by its employee that was caused by: (1) an official policy, (2) a

widespread practice or custom, or (3) an official with final policy-making authority. Thomas v.

Cook County. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (citing Monell v. New York City

Dept. of Social Servs., 436 U.S. 658, 690 (1978)); see also Hahn v. Walsh, 762 F.3d 617, 640

(7th Cir. 2014). To state a Monell claim under § 1983, a plaintiff must demonstrate that the

“deliberate action attributable to the municipality itself is the ‘moving force’” behind the

deprivation of her constitutional rights. Bd. of the Comm’rs of Bryan Cnty. v. Brown, 520 U.S.

397, 399 (1997) (citing Monell, 436 U.S. at 694).

Here, Plaintiff alleges that her constitutional injury was caused by Defendant’s policy,

custom, or usage because her termination was effected by “a member of Defendant’s

management team with final policymaking authority.” (Dkt. 24) at ¶¶ 45–46. Under 110 ILCS

805/3-42, the Board of Trustees has the power to “employ such personnel as may be needed, to

establish policies governing their employment and dismissal and to fix the amount of their

compensation.” (Dkt. 54) at 14–15. Plaintiff does not dispute that Illinois law gives a

community college’s Board the sole, non-delegable power to establish policies governing the

employment and dismissal of community college personnel. Instead, Plaintiff argues that

Tomino and Howard made the decision to terminate her, communicated her termination, and

implemented that termination in September 2014—while the Board did not approve officially of

Plaintiff’s termination until November 10, 2014. (Dkt. 59) at 14. To Plaintiff, this time delay is

evidence that Tomino and Howard were “authorized to terminate Plaintiff’s employment and []

the Board’s approval of their decision was merely pro forma.” Id. In addition to the delayed

timing between Plaintiff’s effective termination and the Board’s approval of it, the parties

dispute the “authority” that Howard and Tomino held to make personnel decisions. See (Dkt.

57) at ¶ 32; (Dkt. 62) at ¶ 32. Specifically, while Defendant argues that the statute deprives

Howard and Tomino of any final policymaking authority, Plaintiff points to testimony that

(1) Howard was “involved in” decisions to terminate Defendant’s employees (both within and

outside of the human resources department), and (2) Tomino’s approval (or “sign off”) was

required for promotions and terminations. (Dkt. 60-3) (S. Tomino Dep.) at 19:24–20:13; (Dkt.

60-5) (D. Howard Dep.) at 23:13–27:12.

But neither Howard nor Tomino was a member of the Board and there is no evidence that

Howard and Tomino set policy for hiring and firing employees. Although Plaintiff has

submitted evidence that they were involved in or otherwise made employment decisions, that

alone is insufficient to establish that they are policymakers. See, e.g., Carpanzano v. Coll. of

DuPage, 2004 WL 442606, at *5 (N.D. Ill. Feb. 18, 2004) (affirming dismissal of § 1983 claim

against community college on summary judgment where plaintiff failed to submit evidence that

individuals who terminated her had final policymaking authority); Cameli v. O’Neal, 1997 WL

351193, *18 (N.D. Ill. 1997) (holding that school district could not be held liable under § 1983

for personnel decisions of a school principal who was delegated authority to hire and fire

employees but was not responsible for establishing district employment policy); cf. Kujawski v.

Bd. of Comm’rs of Bartholomew Cty., Ind., 183 F.3d 734, 739 (7th Cir. 1999) (finding a genuine

issue of fact as to whether the County Board delegated final policymaking authority to make

employment policy decisions with respect to corrections employees where plaintiff provided

evidence that the Board never reviewed Officer Parker’s personnel decisions, Parker was “in

charge” of the department, and Parker called community corrections meetings and set

employment policies for the community corrections department, among other things).

Accordingly, Plaintiff has failed to present sufficient to create a issue for trial as to whether

Tomino and/or Howard were final personnel policymakers for Defendant, particularly where the

statutory authority contradicts this conclusion. As a final point, Plaintiff has not offered any

policy, practice, or custom that caused the pay disparity between her and her white colleagues

that she has set forth, nor does she point to an official with final policymaking authority who was

involved in the salary decisions. Accordingly, Plaintiff has failed to put forth sufficient evidence

to allow her § 1983 claim to survive summary judgment.

CONCLUSION

For the reasons stated above, Defendant’s motion for summary judgment (Dkt. 53) is

granted in part and denied in part. Plaintiff’s § 1983 claim is dismissed, but her ADEA and Title

VII claims will proceed to trial.

mn] a

Jtek Dene att

ot Virginia M. Kenda

ed States District Judge

Date: March 26, 2018

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