THERESA L. SPRINGMANN, Chief District Judge.
This matter is before the Court on Defendant's Renewed Motion for Summary Judgment [ECF No. 56] filed by the Defendant, ArcelorMittal Burns Harbor, LLC. For the reasons set forth below, the motion for summary judgment is
On December 30, 2013, the Plaintiff, Dorothy Hope (Hope), filed her complaint [ECF No. 1] pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq., as amended, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et seq., and 42 U.S.C. § 1981 (§1981). Hope alleges that she was hired by the Defendant, ArcelorMittal Burns Harbor, LLC (AM), in 1990 as a laborer. [Id. at 2.] Hope claims she was removed from her training by her supervisor who "stated that he wanted younger men on the mill," which prevented any possibility of promotion, on June 19, 2012. [Id.] She alleges that she has been denied, and continues to be denied, opportunity for training and advancement because of her sex, age, and race. [Id. at 2-4.] She also claims that she was retaliated against after she complained of the discrimination to AM and subsequently filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). [Id. at 4-5.] AM's Answer [ECF. No. 8] was filed on March 17, 2014.
After the close of discovery, AM filed a motion for summary judgment [ECF. No. 33] on January 8, 2016, along with a memorandum and exhibits in support [ECF. No. 34]. On April 9, 2016, Hope filed her response in opposition [ECF No. 48] along with an appendix of additional materials [ECF. No. 47]. In it, as part of her argument, Hope pointed out that many of AM's allegedly undisputed facts were not supported by AM's designated evidence. [See ECF No. 48, pp. 2-7.] She also disputed AM's reliance on her failure to respond to AM's requests for admissions by stating that she was contemporaneously filing a motion to withdraw those admissions. [Id. at 5-6.] On April 12, 2016, AM filed motions for leave to substitute and/or supplement [ECF Nos. 49 & 50] several exhibits due to administrative filing errors in order to address Hope's arguments. Hope did not respond to these motions, but, on that same day, she filed a motion to withdraw admissions [ECF No. 51] pursuant to Federal Rule of Civil Procedure 36(b). AM filed its response [ECF No. 52] to Hope's motion on April 14, 2016. Hope filed her reply in support of her motion to withdraw admissions [ECF No. 53] on April 25, 2016. On May 2, 2016, AM filed its reply in support of its motion for summary judgment [ECF No. 54].
After considering the matter as a whole, the Court denied the motion for summary judgment without prejudice and with leave to refile, denied the motions to substitute as moot, and granted the motion to withdraw admissions. [See ECF No. 55.] Subsequently, AM filed the instant renewed motion for summary judgment [ECF No. 56], along with a memorandum and exhibits in support [ECF No. 57] on November 17, 2016. On December 30, 2016, Hope filed a response [ECF No. 61] and appendix of additional materials [ECF No. 60] in opposition to AM's motion for summary judgment. Finally, on January 24, 2017, AM filed its reply in support of its motion [ECF No. 62]. The motion is thus ripe for adjudication.
Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when "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). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. In determining whether summary judgment is appropriate, the court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). "However, our favor toward the nonmoving party does not extend to drawing inferences that are supported by only speculation or conjecture." Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citation omitted).
While the movant bears the initial burden of production to inform the district court why a trial is not necessary, these requirements "are not onerous" where the nonmovant "bears the ultimate burden of persuasion on a particular issue." Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). A party may move for summary judgment based on either "affirmative evidence that negates an essential element of the nonmoving party's claim" or by "asserting that the nonmoving party's evidence [is] insufficient to establish an essential element of the nonmoving party's claim." Id. at 1169 (citation and internal quotations omitted). A party opposing a properly supported summary judgment motion may not rely on allegations or denials in his own pleading, but rather, must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). The nonmovant must inform the court of both the factual and legal reasons why summary judgment should not be entered. Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017). Courts are limited to the arguments presented in the parties' briefs; "[a]fter all, a lawsuit is not a game of hunt the peanut. Employment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are obliged in our adversary system to scour the record looking for factual disputes." Id. (internal quotation marks, citations, and ellipsis omitted).
With regard to the assessment of the evidence that is presented, the Seventh Circuit has stated:
Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). Ultimately, if the nonmoving party fails to establish the existence of an essential element on which he bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
The following facts are taken from the parties' briefs and relevant evidentiary submissions; they are undisputed unless otherwise noted. At the time she filed her complaint, Hope, an African-American woman, was fifty-four years old. [ECF No. 1, p. 2; ECF No. 57-3, p. 16.] Hope began working in the steel industry in the late 1970s and began working for AM's predecessor companies during the 1990s, eventually making her way to the Tandem Mill, a component of AM's Finishing Division. [ECF No. 57-1, pp. 14, 22-23, 27-31; ECF No. 53-1, p. 2.] The Tandem Mill employees are part of the United Steelworkers of America and are covered by a collective bargaining agreement (the CBA). [ECF No. 57-7.]
Within AM's Finishing Division, there are five salaried job positions: Utility Person (Labor Grade 1), Service Technician (Labor Grade 2), Operating Technician (Labor Grade 3), Maintenance Technician (Labor Grade 4),
Hope began working in AM's Finishing Division in a Labor Grade 2 position, and she moved up to a Labor Grade 3 Operating Technician position by the early 2000s. [ECF No. 57-1, pp. 29-34, 45-46; ECF No. 53-1, p. 2; ECF No. 57-9.] As of the date of the filing of the instant motion, Hope was still employed in a Labor Grade 3 position.
As a Labor Grade 3 Operating Technician, Hope first served as a PO and then became a Feeder in approximately 2005, where she served for many years. [ECF No. 57-1, pp. 33-34, 46, 87.] However, as of the date of her deposition on May 5, 2015, Hope was serving in the PO assignment and does not dispute that she was still serving in that position as of the date of the filing of the instant motion and her response brief.
From September 2007 to May 2012, John King (King) was the Operation Manager of the Tandem Mill. [ECF No. 57-10, p. 10.] In the spring of 2012, Jim Velto (Velto) took over for King as Operation Manager. [ECF No. 57-6, pp. 9, 42.] The Operation Manager and Process Manager determine who trains for particular assignments. [ECF No. 57-6, p. 10.] An employee who is training for a new assignment is assigned a veteran employee who typically supervises that trainee for the duration of the training. [ECF No. 57-6, p. 10.] However, throughout the process, the Operation and Process Managers continue to observe the trainee and solicit feedback from the veteran employee as to whether the trainee is qualified or progressing at the appropriate rate. [ECF No. 57-6, pp. 10-11.] AM has the ability to track productivity and diminished production, and it maintains expectations for the time it generally takes an employee to qualify on each assignment.
The Aux 2 and Aux 1 assignments require an employee to operate a set of controls to shape the coil to the customer's specifications. [ECF No. 57-4, pp. 25-28.] The Aux 2 assignment involves steering the strip of steel straight as it goes through the mill; then the Aux 1 assignment takes over, making sure that the strip is straight and is fed to the next part of the process. [ECF No. 57-10, p. 24.] A document entitled "Time Limits for Training" sets forth limits based on "the training programs at integrated steel mills with similar operations." [ECF No. 57-11, p. 5; ECF No. 57-12.] It lists the training period for the Aux 2 and Aux 1 assignments as eight weeks each. [ECF No. 57-12.] As pointed out by Hope, this document was published by Velto on June 12, 2012. [ECF No. 57-11, p. 5; ECF No. 57-12.] Prior to that date, King testified that there "wasn't a set time" for an employee to complete the training, but that AM had a "time that we thought" it would take. [ECF No. 57-10, p. 19.] Hope trained on the Aux 2 assignment from November 7, 2011, through January 7, 2012, for approximately nine weeks, and she trained on the Aux 1 assignment from January 22, 2012, through April 4, 2012, for about 10 weeks. [ECF No. 57-11, p. 5.] AM contends that both training periods were longer than typical, and Hope responds by pointing out that the official standards were not instituted until after her training periods had ended. Regardless of the official standards set forth by Velto in the "Time Limits for Training" document, King testified that he "actually gave [Hope] more training time than I have anybody on a job," and Hope unequivocally admitted in her responses to AM's requests to admit that she received "extra training" on the Aux 2 and Aux 1 assignments. [ECF No. 53-1, p. 1; ECF No. 57-10, p. 43.]
Related to that training, King affirmed that the progression generally moves from Aux 2 to Aux 1; as to Hope's movement between the two Auxiliary assignments he testified:
[ECF No. 57-10, pp. 23-24, 38-39.] Hope and Velto each testified that Hope had technically been considered qualified in the Aux 2 assignment at some point prior to Velto becoming Operation Manager. [ECF No. 57-2, p. 18; ECF No. 57-6, p. 13.] In any event, Hope was removed from the Aux 1 training assignment because, according to King, she "didn't seem to be picking it up real well," and he was unsure if Hope had the capability to do so despite being assigned an additional hourly trainer, Ron Crosslin (Crosslin), to help teach her the functions of the job. [ECF No. 57-10, p. 21-23.] Specifically, King testified that Hope was unable to competently perform several required tasks such as leveling the mill, inspecting the top side of the strip for defects, and consistently making the strip shape as flat as possible. [ECF No. 57-10, p. 53; ECF No. 57-13, p. 2.] Although King testified that Hope could do the work "at times," he went on to state that it needed "[l]ots more work" overall and that he had already given Hope "above and beyond what I thought—more than anybody." [ECF No. 57-10, p. 53.] In addition, King testified that Hope had "incidents"—one of which was documented—with employees who were working with or training her. [ECF No. 57-10, pp. 20-21, 40-45, 49-51.] During his deposition, King also indicated that several managers, including Mark Wray (Wray), John Cowger (Cowger), and Jay Gustafson (Gustafson), had told him they believed that Hope was responsible for a drop in production.
According to Hope, hundreds of tons of steel were rejected while the following individuals were at the Aux 1 assignment—costing AM over $700,000—yet they were not disqualified: Harmon, Brian Richa (Richa), Berris Samuels (Samuels), and Michael Silhavy (Silhavy). [ECF No. 47-3, pp. 1-2, 8.] In support of this contention, she points to a partially obscured, undated, unsigned document allegedly distributed by Velto that attributes the rejection to "steel on the rolls" which is commonly caused by a "damaged tail going through the mill with roll force on that mill." [ECF No. 47-3, p. 8.] The Quality Assurance department was asked to make a list of dates and times the coils were produced, but it is not clear from the document what the result of that inquiry was. [ECF No. 47-3, p. 8.] In addition, Hope attests that "turn operation reports" show gap times listed as "delays," damage to the tail, and pinched tails. [ECF No. 60-1, p. 1.] The referenced reports—which appear to contain hand-written explanatory notations—are from three days in November 2016 and do not mention Hope or any of the employees listed above; in fact, the only positions noted are those of Foreman, Roller, and Recorder.
Hope was scheduled to begin an Aux 2 assignment again on April 12, 2012; prior to that date though, she filed a grievance and, as part of a settlement, was ultimately reassigned to Aux 1 training in May of 2012. [ECF No. 57-11, p. 5; ECF No. 57-2, p. 32-33; ECF No. 57-10, pp. 24-25.] However, King left his position as Operation Manager before Hope could resume Aux 1 training. [ECF No. 57-10, p. 25.]
When Velto began as Operation Manager, he was tasked with improving the quality, safety, and performance of the Tandem Mill, and he was asked by AM to recommend any necessary changes. [ECF No. 57-6, p. 28.] Velto testified that he had watched Hope at the Aux 2 assignment for several weeks,
With regard to her own evaluation of her performance, Hope admitted that she was observed doing what she considered "little things" incorrectly, but she insisted that it was because several of her trainers—Harmon, Aster, and Harris—had shown her the wrong way to perform those tasks.
Statistically speaking, computers attached to the machines Hope works/worked on track and record production metrics, including average gap times between coils. [ECF No. 57-4, pp. 11-13.] When asked about the negative results of production mistakes, including those that would cause mill shut-downs, Hope testified as follows:
[ECF No. 57-1, pp. 82-84.]
According to AM, Hope's performance problems caused documented production delays, resulting in losses; specifically, with Hope working in the Aux 2 and Aux 1 assignments from April 12, 2012, through June 20, 2012, AM calculated the following with regard to production:
Regardless, it is undisputed that Velto decided to disqualify Hope from the Aux 2 assignment in June 2012. [ECF No. 57-6, pp. 12-13; ECF No. 57-11, pp. 5-6.] Per Velto, he did so based on his own industry experience, his personal observations of Hope's performance on the Auxiliary, and his second-hand knowledge of her previous history of training. [ECF No. 57-6, pp. 12-13, 29-30, 34.] In Velto's estimation, Hope was unable to perform the functions of the Aux 2 assignment. [ECF No. 57-6, pp. 27-29.] Thus, Hope was re-assigned back to the Feeder assignment. [ECF No. 57-1, p. 87; ECF No. 57-4, pp. 18-19.] Velto informed Hope of his decision on June 19, 2012, at a meeting that also included Wray, the process engineer at the Tandem Mill, and Harris, a member of the Union Grievance Committee. [ECF No. 57-14; ECF No. 57-15.] Hope filed an internal Civil and Human Rights Complaint on November 1, 2012, with the Union following her removal from the Auxiliary;
Subsequent to Hope's disqualification from the Aux 2 assignment, the employees next in line in terms of seniority trained on those assignments and, according to Velto, excelled at them after completing only the standard training period. [ECF No. 57-6, p. 33.] Hope filed a Charge of Discrimination with the EEOC related to her Auxiliary disqualification several months after she filed her internal Complaint, and she testified that around the time she subsequently received the Dismissal and Notice of Rights to sue letter from the EEOC on September 27, 2013, Harris began allowing his "buddies"—all white males with less seniority than her—to proceed straight from Aux 2 assignments to train on Asst Roller assignments, skipping the Aux 1 assignment in violation of the line of progression.
[ECF No. 57-2, 9-11.] Hope went on to testify that she believed Harris moved the men up ahead of her because she refused to "suck up" to him and had hurt his pride. [ECF No. 57-2, p. 14.] Later in the deposition, Hope reiterated that Harris did not like her because she had not voted for him and was not part of his "clique" and that those employees who were "buddies" with Harris and had voted for him received the opportunity to train on the Asst Roller assignment. [ECF No. 57-2, p. 68, 76-77.] When asked to confirm that Silhavy, Auskel, O'Halleck, and a number of other employees were treated more favorably in terms of conditions and privileges of employment because they were well-liked and had the "right" to train as opposed to because they were younger, male, Caucasian employees, Hope responded in the affirmative. [ECF No. 57-2, pp. 83-86.]
Overall, Hope attests by way of affidavit that AM promoted sixteen (16)
During her time as Feeder following her removal from the Auxiliary assignments, Hope received several written Warning and Disciplinary Reports. [ECF No. 57-18.] An April 2014 Report described a coil "mix" incident in which Hope accepted three wrong coils on entry that resulted in a sixty-nine minute mill shut down. [ECF No. 57-18, p. 2.] A May 2014 Report described a similar coil "mix" incident created by Hope that caused a forty-four minute mill shut down. [ECF No. 57-18, p. 4.] A July 2014 Report described an incident in May and three incidents in July, all of which resulted in mill down time. [ECF No. 57-18, p. 3.]
In early December 2014, Hope was disqualified from the Feeder assignment and returned to the PO assignment. [ECF No. 57-19.] According to Velto, the disqualification was not based on the "mix" incidents; rather, he testified that Hope was disqualified because she also caused two mill "wrecks" by improperly feeding the coils under the camera of the machine. [ECF No. 57-6, pp. 34-36.] Velto testified that mill wrecks were "extremely dangerous" to employees and that the rolls involved basically became scrap metal. [ECF No. 57-6, p. 37.] Both of the mill wrecks were captured on video—one on October 14, 2014, and the other on November 20, 2014—and Velto reviewed those videos with labor relations and human resources when making the determination to disqualify her. [ECF No. 57-6, pp. 25, 35; ECF No. 57-20.] Hope acknowledged that two mill wrecks in late 2014 occurred "on [her] crew" while she was Feeder, but she only specifically remembers one of the wrecks. [ECF No. 57-4, pp. 72-73.]
A document allegedly signed by Velto entitled "Spalled Rolls at the Tandem Mill" that was distributed to the mill workers in November 2014 indicates that some of the other mill wrecks were caused by "overpickled" coils, and the Rollers were instructed to slow the mill down to help prevent wrecks. [ECF No. 47-3, p. 9-10.] The document states that the slow down would "not prevent spalled rolls entirely. Rolls spall when previous damage is not found and removed in the grinder and when put into the mill begin to heat up through the cold rolling process." [ECF No. 47-3, p. 10.] In her affidavit, Hope points to this document and attests that "[t]he mill wreck that Velto blamed me for was not my fault, but due to the condition of the product prior to it coming into the mill and/or rollers failing to slow the mill down for over-pickled coils." [ECF No. 47-3, p. 2.] However, none of the wrecks mentioned in the document match the dates of the wrecked mills captured on video referenced above, and Velto specifically testified that, after investigation, it was determined that a wreck involving an overpickled coil did not involve Hope. [ECF No. 47-3, p. 9; ECF No. 57-6, pp. 22-25.]
Hope grieved her disqualification from the Feeder assignment and, as a result, was given approximately three weeks of additional training. [ECF No. 57-4, pp. 75-76; ECF No. 57-6, p. 35.] However, according to Velto, Hope was still unable to perform the assignment's essential functions, and her performance was below that of other Feeders. [ECF No. 57-6, p. 36.] Specifically, Velto testified that he observed Hope feeding the head end in crookedly, which caused a delay on the mill, and that she struggled with wide, light gauge. [ECF No. 57-6, p. 25.] Velto also obtained computerized data from Erik Ahrendt (Ahrendt), the process automation engineer, showing that Hope's gap times were longer than those of other employees with less time overall on the Feeder assignment. [ECF No. 57-6, pp. 25-27; ECF No. 57-21.] After the additional training period ended, Velto made the decision on March 26, 2015, to let the December 2014 disqualification stand. [ECF No. 57-6, pp. 35-36; ECF No. 57-21.]
Since that time to and through the date she filed her response brief on December 30, 2016, Hope has remained in the PO assignment which, like the Feeder assignment, is a Labor Grade 3 position. [ECF No. 57-4, p. 80; ECF No. 57-6, p. 39; ECF No. ECF No. 57-19.] Hope testified that this change was not a "demotion" but rather a lateral move. [ECF No. 57-3, p. 62.]
In general, Hope testified that while Velto never said anything directly to her that would have led her to believe he treated her differently because of the color of her skin, she felt she was discriminated against due to Velto's actions of "picking on the blacks." [ECF No. 57-3, pp. 8-21.] She testified that she just felt "he don't like blacks." [ECF No. 57-3, p. 9.] During her deposition, the following exchange took place:
[ECF No. 57-3, pp. 21-22.] When asked specifically about her disqualification from the Feeder assignment, the following exchange took place:
[ECF No. 57-4, pp. 71, 79.] However, when asked later by her own attorney at the end of the deposition whether she believed she was disqualified from the Feeder assignment because of her race, gender, age, and in retaliation for complaining of discrimination, she answered in the affirmative. [ECF No. 57-5, pp. 84-86.]
Title VII makes it unlawful for an employer to "discriminate 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). "To succeed on a Title VII claim, the plaintiff-employee must prove three elements:
Abrego v. Wilkie, 907 F.3d 1004, 1012 (7th Cir. 2018) (citing Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013)). Generally, claims of discrimination brought pursuant to § 1981 are analyzed in the same manner as those under Title VII. See, e.g., Egonmwan v. Cook Cty. Sheriff's Dep't, 602 F.3d 845, 850 n.7 (7th Cir. 2010); Humphries v. CBOCS W., Inc., 474 F.3d 387, 403 (7th Cir. 2007). As to age discrimination, the ADEA makes it unlawful for an employer to take adverse action against an employee who is forty years or older "because of such individual's age." 29 U.S.C. §§ 623(a)(1), 631(a). Age must be "the `reason' that the employer decided to act." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Therefore, "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the `but-for' cause of the challenged adverse employment action." Id. at 180. In this sense, the ADEA is somewhat narrower than Title VII. Carson v. Lake Cty. Ind., 865 F.3d 526, 532 (7th Cir. 2017).
Discrimination claims may be reviewed on summary judgment under the direct or the burden-shifting methodologies. See David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017). When a plaintiff responds to a motion for summary judgment on an intentional discrimination claim by relying on the burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a court should assess the case in those terms. Id.; see also Ferrill v. Oak-Creek-Franklin Joint Sch. Dist., 860 F.3d 494, 499 (7th Cir. 2017) (noting that McDonnell Douglas burden-shifting analysis has not been displaced). When the plaintiff does not present her argument in opposition to summary judgment in those terms, the direct method of proof is the "default rule." Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 880 (7th Cir. 2016) (quoting Morgan, 724 F.3d at 997). Under that method, the test for whether a claim of intentional discrimination should proceed to a jury is whether the admissible evidence, considered as a whole, would permit a reasonable factfinder to conclude that the plaintiff's race, sex, or age caused the adverse action. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016) (setting out the standard for avoiding summary judgment on discrimination claim under the direct method of proof). In all cases, the question at summary judgment remains: "has the non-moving party produced sufficient evidence to support a jury verdict of intentional discrimination?" David, 846 F.3d at 224; see also Liu v. Cook Cty., 817 F.3d 307, 315 (7th Cir. 2016) ("The proper question under either method is simply whether a reasonable trier of fact could infer retaliation or discrimination."); Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 840 (7th Cir. 2014) ("[T]he fundamental question at the summary judgment stage is simply whether a reasonable jury could find prohibited discrimination.").
Here, Hope has not invoked the McDonnell Douglas burden-shifting method to refute summary judgment; rather, her response brief implies that she is proceeding under the direct method of proof. [ECF No. 61, pp. 14-18.] The question before the Court, then, is whether the evidence as a whole would permit a reasonable factfinder to conclude that Hope was denied "the opportunity for training and advancement" as she alleges in her Complaint because of her race, sex, and/or age. Such evidence may include:
According to Hope, King's statements following her removal from Aux 1 training were ambiguous and contradictory. She claims that he initially told her she was removed because her crew had reported she was causing production losses, but then—when confronted as a part of a group including Hope's crew members—he "admitted" that the reason production was low was because AM had taken away the crew's inventive pay. The Court agrees with AM that a close reading of the testimony establishes that King's statements were neither ambiguous nor contradictory. King testified that he removed Hope from Aux 1 training because she was unable to perform several of its required tasks; he also indicated that other employees told him they believed Hope was responsible for the drop in production. Hope testified that after King provided her with the aforementioned rationale, she along with her other crew members informed King that the drop was actually due to the incentive pay issue.
Hope claims that the fact that King "qualified" her for the Aux 2 assignment shows she demonstrated "proficiency" at the position, leading to the inference that her disqualification by Velto from the Auxiliary altogether was suspicious. However, while King did move her from Aux 2 to Aux 1—thereby technically making her qualified at Aux 2 due to the line of progression—he specifically testified that he did so in order to help her learn the Aux 2 job because she did not seem to be progressing the way he had wanted her to; according to King, he personally did not break the two assignments down in his mind as an employee needed to know both Auxiliary positions in order to be qualified. Thus, King's initial Aux 2 qualification does not corroborate Hope's assertion that Velto's latter disqualification was discriminatory.
Hope's most significant piece of evidence related to ambiguous statements is her allegation that on June 19, 2012, Velto told her he wanted the "younger mens" on the mill in the wake of her Aux 2 disqualification. Velto insists that he referred to "younger guys" in that conversation to mean people with less seniority than Hope, and Harris—who was present at the meeting as a member of the Union Grievance Committee on Hope's behalf—attests to this phrasing and understanding as well. However, for purposes of the instant motion, it must be assumed that Hope's recollection of the statement as "younger mens" is correct. While a stray remark is generally insufficient to establish discriminatory intent, an exception may apply where it was "(1) made by the decisionmaker, (2) around the time of the decision, and (3) in reference to the adverse employment action." Egonmwan, 602 F.3d at 850 (citing Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th Cir. 2007), overruled on other grounds by Ortiz, 834 F.3d at 760).
In light of the above, Velto's reference to wanting to give the "younger mens" a chance to train—after he determined that Hope was unable to properly perform the assignment's tasks— was not particularly probative of a gender-based discriminatory motive because any person next in the line of progression at that time who replaced Hope at Aux 2 would necessarily have been male. See Newcomb v. Thorp Awnings, Inc., No. 1:03 CV 1814 SEB VSS, 2005 WL 1244979, at *10 (S.D. Ind. May 24, 2005) (statement that there were "guys in the back jumping at the bit to get your job" may have been perceived by the plaintiff as subjectively biased but was "more likely to be a comment about eager and competitive co-workers, all of whom happen to be male" based on the specific work environment). Moreover, with regard to the men being "younger," even crediting Hope's interpretation of the word over Velto's contextually reasonable explanation of it being related to seniority, Hope's own testimony does not serve to support an inference of discrimination. When asked at her deposition to elaborate on the conversation, Hope repeatedly insisted that Velto referred to the men having "that zing," which Hope understood to mean "energy" or "muscles." However, neither energy nor muscles are directly attributable to age. See Skiba, 884 F.3d at 720-22 (hiring managers' beliefs that an alternate candidate would be "a little faster" and that that the plaintiff had "low energy" did not support a valid inference that their decisions were impermissibly based on age because the plaintiff's "proffered theory [was] too divorced from the factual record to create a genuine issue of material fact"); see also Bordelon v. Bd. of Educ. of the City of Chi., 811 F.3d 984, 991 (7th Cir. 2016) (testimony that employee was fired because management wanted someone "younger and brighter" did not give rise to an inference of discrimination when it was explained that the employee thought it meant he wanted someone with "more education" or experience in the field). Thus, viewed in context, Velto's remark, by itself, does not necessarily support a finding of discriminatory motivation. See, e.g., Schuster, 327 F.3d at 576 (age-related remarks viewed in the proper context were less likely to have been motivated by a discriminatory animus than by the particular "business climate" or the "realities of the marketplace"). That said, the Court has considered it as part of the whole picture when deciding whether a reasonable factfinder could conclude that Hope's sex and age caused AM to deny her the opportunity for training and advancement. What the Court has not done, however, is consider this comment as evidence pertinent to Hope's race discrimination claims, as nothing about this remark speaks to race.
According to Hope's response brief, Harris arranged for five (5) less senior, younger, white males to "skip over the Aux 1 position and qualify directly from Labor Grade 2 positions to Labor Grade 5 positions—in violation of the line of progression" shortly after her EEOC Charge of Discrimination was resolved, which provides proof that AM treated these similarly situated comparators favorably. However, as noted in the facts section above, the materials cited by Hope do not support this contention. First, Hope testified that these employees were allowed to move from Aux 2 to Asst Roller training, so the alleged "skipping" pertained to the Aux 1 assignment which—like the Aux 2 assignment—is Labor Grade 3. According to the line of progression, the assignment directly following Aux 1 is the Asst Roller assignment which happens to be a Labor Grade 5 position. The characterization of Hope's testimony as establishing a jump from Labor Grade 2 to Labor Grade 5 is inaccurate. Additionally, the "rosters" Hope provided with her affidavits—to purportedly demonstrate that employees were promoted ahead of her—appear to indicate that the five (5) men referenced above were qualified at the Aux 1 assignment, not that they skipped over it.
Hope also contends that AM promoted as many as ten (10) additional "younger white males" for positions ahead of her. However, the evidence Hope relies on—namely her own affidavit that references the employee "rosters" mentioned above—does not establish that these co-workers were treated favorably. It simply shows the various positions that were available to train on including the Aux 2, Aux 1, Asst Roller, and Roller assignments and which employees had qualified at each. The rosters do not indicate that any of the employees who allegedly qualified ahead of Hope had failed to become proficient at an assignment yet moved up anyway. In fact, the rosters appear to identify other employees with boxes blacked out for certain assignments—like Hope—that also did not progress beyond the assignment for which they had failed to qualify for and/or had been removed from.
Moreover, in that same vein, while the Seventh Circuit has stressed that the similarly situated comparator analysis is a "flexible inquiry with no magic formula," Khowaja v. Sessions, 893 F.3d 1010, 1015 (7th Cir. 2018), it is clear that an employee with a different performance history and disciplinary record is not considered similarly situated. See Simpson v. Franciscan Alliance, Inc., 827 F.3d 656, 662 (7th Cir. 2016) (citing Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 860 (7th Cir. 2008)); see also Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012) ("In the usual case, a plaintiff must at least show that the comparators . . . engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them.") (internal quotation marks and citation omitted). Here, AM has presented undisputed evidence that production metrics suffered when Hope was at the Auxiliary assignments from April 12, 2012, through June 20, 2012, and improved again when Hope was disqualified from Aux 2. Although it is true that not all negative production numbers can be directly attributed to Hope, Velto testified that a significant portion of the increase in gap time during that period was directly attributable to her. Hope has not presented evidence sufficient to dispute this fact.
Despite this evidence, Hope argues that Harmon, Richa, Samuels, and Silhavy were similarly situated and treated more favorably because they were working on the Aux 1 assignment when hundreds of tons of steel were rejected, but none of them were disqualified from their positions. However, the partially obscured, undated, unsigned document she cites does not indicate that these employees were responsible for the rejection of the steel, that they had caused the damaged tail that was the common source of the issue, that they specifically demonstrated any particular performance problems, or that they responded inappropriately to the feedback that was given. In fact, the portion of the document that starts to address the associated "reject cost" and probable solution is blocked out by what appears to be a wrinkled piece of paper, so it is impossible to tell what the document's intended purpose or result was other than to list the Aux 1 employees working at the unspecified time the steel was rejected. The handwritten notations—presumably added by Hope—do not properly serve to clarify the matter. Hope also asserts that "other employees" in the Auxiliary assignments caused delays and damage but were not disciplined in the same manner that she was. However, the "turn operation reports" Hope points to in support of this contention do not name any of the individuals she alleges are "similarly situated," nor do they even mention the Auxiliary or Feeder assignments at all. They do not identify the decision-maker in charge of the unidentified employees at the time of the alleged damage and delays or address if any subsequent remedial action was taken.
Hope argues that she has shown evidence of pretext related to her disqualifications and removal. She states, in full:
[ECF. No. 61, pp. 16-17.] AM contends that Hope's pretext argument is conclusory and her evidence is insufficient. In general, to show pretext, a plaintiff must identify sufficient "weaknesses, implausibilities, inconsistencies, or contradictions" in the defendant's proffered reasons so that a reasonable person could find them "unworthy of credence." Skiba, 884 F.3d at 724 (citing Coleman, 667 F.3d at 852). Evidence must be presented to suggest that the employer is "dissembling," and the focus is on whether the employer honestly believed the reasons it gave for the adverse action, not whether those reasons were unfair or inaccurate. Id. (citing O'Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011)). Hope does not specifically identify the "contradictory statements" that allegedly show pretext. To the extent she is referring to the statements made by King related to her removal from Aux 1 training, the Court has addressed that argument above in detail. In essence, Hope has not shown that King "admitted" to changing his reasoning as she claims, nor is Hope's evidence sufficient to permit an inference that King's original rationale was unworthy of credence even if additional explanations were later tendered by Hope and her fellow employees.
Finally, Hope argues that she has presented evidence of "bias amongst line workers" from whom she alleges she and other African-American employees were improperly trained. Hope points to Samuels, who attests that his unnamed Caucasian trainer did not properly train him or help avoid mill wrecks. However, even if true, Hope has provided insufficient evidence that Samuels' training issues were linked to his race.
In sum, the evidence taken as a whole is insufficient to allow a reasonable factfinder to conclude that Hope's race, sex, and/or age motivated her removal or disqualifications. See Ortiz, 834 F.3d at 765. AM has presented unrebutted and/or insufficiently rebutted evidence that those employment decisions were made because, despite receiving extra training, Hope displayed performance problems and that production suffered—particularly as related to gap times—while she was at the Auxiliary assignments, that two mill wrecks occurred within a short period of time while she was at the Feeder assignment, and that her production statistics as Feeder compared unfavorably with those of other employees. While Velto's statement that he wanted to give the "younger mens" a chance to train on the Auxiliary following her disqualification from Aux 2 could be deemed evidence of age and/or gender-based animus if viewed by itself and out-of-context, when considering the record in its entirety, no reasonable factfinder could find that Hope's age, gender, and/or race were motivating factors for any of AM's employment decisions. See, e.g., Skiba, 884 F.3d at 725-26 (holding that "[a]t the end of the day," the evidence presented did not permit a reasonable factfinder to infer that discrimination caused the adverse actions); Vasquez v. Caterpillar Logistics, Inc., 742 Fed. Appx. 141, 142-43 (7th Cir. 2018) (absence of evidence of discrimination in the record was enough to affirm the district court's entry of summary judgment, but the decision could also have been affirmed on the basis that the defendant "supplied evidence that it fired [the plaintiff] for a legitimate reason—it believed that [the plaintiff] was a poor performer—and [the plaintiff] has not furnished sufficient evidence suggesting that [the defendant] did not believe its rationale"); Heise v. Canon Solutions Am., Inc., No. 16 C 8284, 2018 WL 3533255, at *10 (N.D. Ill. Jul. 23, 2018) (a reasonable factfinder could have inferred gender-based animus from some of the background evidence including statements by decisionmakers that the plaintiff was a "silly girl" and that "[n]one of my guys act the way you do," but no reasonable jury could have viewed the record in its entirety and concluded that the defendant's explanation was pretextual or that her gender was the real reason for her termination); U.S. EEOC v. Cont'l Airlines, Inc., 04 C 3055, 2006 WL 14510, at *8 (N.D. Ill. Jan. 3, 2006) ("[E]ven the cumulative effect of the evidence does not raise a question of fact as to [the defendant's] discriminatory intent.").
To establish unlawful retaliation, "a plaintiff must show that: (1) she engaged in protected activity; (2) she suffered an adverse action; and (3) there was a causal connection between the two." See Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 868 (7th Cir. 2018) (citing Owens v. Old Wisconsin Sausage Co., Inc., 870 F.3d 662, 668 (7th Cir. 2017) (elements of a Title VII retaliation claim) and Boston v. U.S. Steel Corp., 816 F.3d 455, 464 (7th Cir. 2016) (same for ADEA)); see also Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir. 2015) (same standards also apply to retaliation claims brought pursuant to § 1981). "An action is materially adverse if it might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Kuhn v. United Airlines, Inc., 640 Fed. Appx. 534, 538 (7th Cir. 2016) (citing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted)). For claims brought pursuant to the ADEA, "retaliation must be a but-for cause of a materially adverse action, not merely a contributing factor." Barton v. Zimmer, Inc., 662 F.3d 448, 455 (7th Cir. 2011).
Hope argues that her disqualification from the Feeder assignment in December 2014— which became final in March 2015—was done in retaliation for her earlier complaints of discrimination including the internal Civil & Human Rights Complaint she submitted to the Union on November 1, 2012, the subsequently filed EEOC Charge of Discrimination that resulted in a Dismissal and Notice of Rights to sue letter dated September 27, 2013, and the instant lawsuit that was filed on December 30, 2013.
Specifically, Hope argues it was suspicious that soon after the EEOC investigation was deemed complete, Harris permitted five (5) white males to skip the normal line of progression and advance directly from Aux 2 to Asst Roller assignments. As an initial matter, the Court notes that temporal proximity alone is rarely sufficient to defeat a motion for summary judgment in retaliation cases. See Abrego, 907 F.3d at 1015. Moreover, as set forth in detail in the preceding sections, the evidence submitted by Hope—namely the employee rosters and her own affidavit— does not support the allegation of impermissible "skipping." And, even assuming that "skipping" occurred, Hope testified that the reason the men were allowed to advance was because they were "buddies" with Harris who had voted for him and were part of his "clique." She indicated that she believed she was not one of those who was allowed to skip over assignments because she refused to "suck up" to him and had hurt his pride. None of these reasons has anything to do with her complaining of discrimination by Velto; thus, it is not reasonable to infer that retaliation was connected to these alleged actions.
Hope also argues that her disqualification from the Feeder assignment was retaliatory because she had successfully held the position for many years. She states that "[t]his, along with the evidence set out above, is sufficient evidence for a reasonable jury to determine that [AM] retaliated against [her] for complaints of discrimination." However, Velto testified that she was removed from Feeder after video evidence surfaced revealing she had caused two dangerous mill wrecks within a short span of time.
Considering the aforementioned, it is not reasonable to conclude that Hope was retaliated against by AM. Even when all inferences are drawn in favor of Hope, she has failed to point to sufficient evidence that would allow a reasonable jury to conclude that her disqualification from Feeder was causally connected to her complaints of discrimination. See Abrego, 907 F.3d at 1015 (aside from suspicious timing, the plaintiff—who "was terminated for a plethora of legitimate reasons"—failed to point to "any other circumstantial evidence to allow a reasonable jury to conclude that but-for his filing of the EEO complaints, he would not have been suspended or removed"); Heise, 2018 WL 3533255, at *12 ("As was the case with respect to [the plaintiff's] discriminatory discharge claim, on this record, even when all reasonable inferences are drawn in favor of [the plaintiff], a reasonable jury simply could not find a causal connection between [the plaintiff's] discrimination and harassment complaints and her termination.").
For the reasons set forth above, the motion for summary judgment [ECF No. 56] is
SO ORDERED.
