GARY FEINERMAN, District Judge.
Defendant ONEMAIN FINANCIAL, INC. ("OneMain"), by and through its attorneys and pursuant to Section 9 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 9, and the terms of the company's Employment Arbitration Policy, hereby moves the Court to lift the stay in this matter, entered on January 22, 2013 [Docket Doc. No. 13], confirm the arbitration award rendered by Arbitrator Joseph Gagliardo and enter final judgment in favor of OneMain, thereby dismissing Plaintiff Gloria Boateng's ("Boateng") claims. In support of its Motion, OneMain states as follows:
1. On September 27, 2012, Boateng filed suit in this Court alleging claims of race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and the "Race Discrimination in Employment Act". [Docket Doc. No. 1, Complaint ¶¶1, 13, 14.]
2. On January 15, 2013, OneMain filed a Motion to Stay Proceedings and Compel Arbitration [Docket Doc. Nos. 10, 11] because the race discrimination claims made in Boateng's Complaint are subject to final and binding arbitration under a company Employment Arbitration Policy. A copy of the Employment Arbitration Policy was submitted with the aforementioned motion and is also attached in support of this Motion as Exhibit A.
3. On January 22, 2013, this Court entered an order [Docket Doc. No. 13] staying proceedings in the federal court pending arbitration.
4. As stated in the Joint Status Reports that the parties filed on July 8, 2013 and November 14, 2013 [Docket Doc. Nos. 17, 19], Ms. Boateng's claims were submitted to the American Arbitration Association ("AAA"), with Joseph Gagliardo selected to preside as arbitrator. A copy of AAA's April 29, 2013 letter advising of Mr. Gagliardo's appointment as arbitrator is attached as Exhibit B.
5. In December, 2013, after discovery in the arbitration matter had closed, OneMain filed a motion for summary judgment on Boateng's race discrimination claims with AAA. On March 25, 2014, Arbitrator Gagliardo granted summary judgment in OneMain's favor on all of Boateng's claims. A copy of the "Final Award of Arbitrator" is attached as Exhibit C, with the specifics of the arbitrator's Award set forth at pages 12-13 thereof.
6. The company Employment Arbitration Policy provides that "[t]he award of the arbitrator may be enforced under the terms of the Federal Arbitration Act (Title 9 U.S.C.) and/or under the law of any state to the maximum extent possible" and that "[p]arties to these procedures shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof". (Exhibit A, ¶¶ 21, 22(a)).
7. Section 9 of the FAA, 9 U.S.C. § 9, provides, in relevant part:
8. As stated in Paragraph 6 above, pursuant to Paragraph 22 of the company
Employment Arbitration Policy, the parties have "consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof" and therefore the agreement requirement of Section 9 of the FAA has been satisfied. Additionally, this Court clearly has jurisdiction over this matter, having stayed Boateng's federal court action pending arbitration before AAA, thereby satisfying Section 9's jurisdictional requirement.
9. Because Boateng's race discrimination claims have been fully litigated and resolved in arbitration, this action should no longer be stayed. Further, pursuant to Section 9 of the FAA and Paragraphs 21(a) and 22 of the company Employment Arbitration Policy, the Court should confirm Arbitrator Gagliardo's March 25, 2014 Final Award of Arbitrator and enter final judgment in OneMain's favor.
10. On May 6, 2014, OneMain's counsel emailed Boateng's counsel advising of OneMain's intent to seek dismissal of Boateng's federal court action because all of Boateng's claims were disposed of in the arbitration and asked whether OneMain could mark the motion "agreed" or "unopposed". On May 15, 2014, OneMain's counsel phoned and emailed Boateng's counsel to discuss whether the parties could file an "agreed" or "unopposed" motion to dismiss. As of the filing of this Motion, Boateng's counsel has not responded.
11. In compliance with Section 13 of the FAA, 9 U.S.C. § 13, OneMain has attached copies of (a) the Employment Arbitration Policy (Exhibit A); (b) AAA's April 29, 2013 letter advising of Arbitrator Gagliardo's appointment (Exhibit B); and (c) the March 25, 2014 Final Award of Arbitrator (Exhibit C).
For the foregoing reasons, Defendant ONEMAIN FINANCIAL, INC. respectfully requests that this Court enter an Order lifting the stay previously entered in this case, confirming the Final Award of Arbitrator and entering final judgment in OneMain's favor on Plaintiff GLORIA BOATENG's race discrimination claims.
Statement of intent
Citi values each of its employees and looks forward to good relations with, and among, all of its employees. Occasionally, however, disagreements may arise between an individual employee and Citi or between employees in a context that involves Citi.
Citi believes that the resolution of such disagreements will be best accomplished by internal dispute resolution and, where that fails, by external arbitration. For these reasons, Citi has adopted this Employment Arbitration Policy ("Policy"). Arbitration shall be conducted either under the auspices of the Financial Industry Regulatory Authority, Inc. ("FINRA") or the American Arbitration Association ("AAA") as follows:
Arbitrations shall be held in the venue closest to the employee's current Citi work location (or for former employees, their last Citi work location) and shall be conducted in accordance with the respective arbitration rules of the FINRA or AAA, as applicable, then in effect and as supplemented by this Policy. Throughout this Policy there will be references to AAA or FINRA, but only one set of rules applies to any particular proceeding.
Employment with Citi is a voluntary relationship for no definite period of time, and nothing in this Policy or any other Citi document constitutes an express or implied contract of employment for any definite period of time. This Policy doesn't constitute, nor should it be construed to constitute, a waiver by Citi of its rights under the "employment-at-will" doctrine nor does it afford an employee or former employee any rights or remedies not otherwise available under applicable law.
Your eligibility and consideration for merit increase, incentive and retention awards, equity awards, or the payment of any other compensation to you, as well as your acceptance of or continued employment with Citi, shall constitute consideration for your rights and obligations under this Policy.
Scope of Policy
The Policy makes arbitration the required and exclusive forum for the resolution of all disputes (other than disputes which by statute are not arbitrable) arising out of or in any way related to employment based on legally protected rights (i.e., statutory, regulatory, contractual, or common-law rights) that may arise between an employee or former employee and Citi, its predecessors, successors and assigns, its current and former parents, subsidiaries, and affiliates, and its and their current and former officers, directors, employees, and agents (and that aren't resolved by the internal Dispute Resolution Procedure) including, without limitation, claims, demands, or actions under Title VII of the Civil Rights Act of 1964, the Civil Rights Acts of 1866 and 1991, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act of 1990, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the Equal Pay Act of 1963, the Employee Retirement Income Security Act of 1974, the Worker Adjustment and Retraining Notification Act, and all amendments thereto, and any other federal, state, or local statute, regulation, or common-law doctrine regarding employment, employment discrimination, the terms and conditions of employment, termination of employment, compensation, breach of contract, defamation, retaliation, whistle-blowing, or any claims arising under the Citigroup Separation Pay Plan.
Claims that an employee or former employee may have regarding Workers' Compensation or unemployment compensation benefits aren't covered by this Policy.
Claims covered under this Policy must be brought on an individual basis. Neither Citi nor any employee may submit a class, collective, or representative action for resolution under this Policy.
To the maximum extent permitted by law, and except where expressly prohibited by law, arbitration on an individual basis pursuant to this Policy is the exclusive remedy for any employment-related claims which might otherwise be brought on a class, collective or representative action basis. Accordingly, employees may not participate as a class or collective action representative or as a member of any class, collective, or representative action, and will not be entitled to any recovery from a class, collective, or representative action in any forum. Any disputes concerning the validity of this class, collective, and representative action waiver will be decided by a court of competent jurisdiction, not by the arbitrator.
In the event this waiver is found to be unenforceable, then any claim brought on a class, collective, or representative action basis must be filed in a court of competent jurisdiction, and such court shall be the exclusive forum for all such claims.
Nothing in this Policy shall prevent either party from seeking from any court of competent jurisdiction injunctive relief in aid of arbitration or to maintain the status quo prior to arbitration. The Policy doesn't exclude the National Labor Relations Board from jurisdiction over disputes covered by the National Labor Relations Act, or FINRA or the New York Stock Exchange ("NYSE") for matters over which FINRA or the NYSE have jurisdiction. Nothing herein shall be construed to constitute a waiver of an employee's right to file a charge or complaint with these entities, or an employee's right to challenge the validity of this Policy on such grounds as may exist in law or equity.
Further, this Policy doesn't exclude the jurisdiction of the Equal Employment Opportunity Commission ("EEOC") and/or state and local human rights agencies to investigate alleged violations of the laws enforced by the EEOC and/or these agencies. An employee isn't waiving any right to file a charge of discrimination with the EEOC and/or state or local human rights agency. However, employees shall not be entitled to seek or receive any monetary compensation as a result of any proceeding arising from the filing of a charge, and/or participating in an investigation resulting from the filing of a charge, with the EEOC and/or state or local human rights agency.
This Policy doesn't require that Citi institute arbitration, nor is Citi required to follow the steps of the Dispute Resolution Procedure, before taking corrective action of any kind, including termination of employment. However, if an employee disagrees with any such corrective action, believes that such action violated his or her legally protected rights, and wishes to pursue the dispute, he or she must institute proceedings in accordance with the Policy. The results of the arbitration process are final and binding on the employee and Citi.
In addition to their obligations under this Policy, certain employees or former employees are subject to the arbitration requirements of FINRA. In the event FINRA declines to accept a particular claim under its rules, then that claim will be subject to AAA arbitration under this Policy.
Arbitration rules and procedures
Arbitration under this Policy shall be conducted pursuant to the Employment Arbitration Rules and Mediation Procedures of the AAA or the rules for FINRA arbitration, in either case, "rules." Citi has modified and expanded these rules and procedures in certain respects. In particular, provisions covering fees and costs have been modified so that many of the costs typically shared by the parties will be borne by Citi.
To initiate arbitration you must send a written demand for arbitration to the Director of Employee Relations for Citi. The demand must be received by the Director of Employee Relations for Citi within the time period provided by the statute of limitations applicable to the claim(s) set forth in the demand.
The demand shall set forth a statement of the nature of the dispute, including the alleged act or omission at issue; the names of all persons involved in the dispute; the amount in controversy, if any; and the remedy sought. Within 30 calendar days of receiving such demand, or as soon as possible thereafter, Citi shall file the demand with the appropriate office of the AAA or FINRA. You'll also complete any other required forms for submission of the claim for arbitration, such as the Uniform Submission Agreement, when filing a claim with FINRA. For employees subject to FINRA arbitration, a claim may be initiated with Human Resources as outlined herein or pursuant to FINRA's Code of Arbitration procedure, which can be found at
Neutral arbitrator(s) shall be appointed in the manner provided by AAA or FINRA rules, as applicable. However, it's Citi's intent that arbitrators be diverse, experienced, and knowledgeable about employment-related claims.
No person shall serve as a neutral arbitrator in any matter in which that person has any financial or personal interest in the result of the proceeding. Prior to accepting appointment, the prospective arbitrator(s) shall disclose any circumstance likely to prevent a prompt hearing or to create a presumption of bias. Upon receipt of such information, the AAA or FINRA, as applicable, either will replace that person or communicate the information to the parties for comment. Thereafter, the AAA or FINRA, as applicable, may disqualify that person, and its decision shall be conclusive. Vacancies shall be filled in accordance with the AAA or FINRA rules, as applicable.
The AAA or FINRA, as applicable, is authorized to substitute another arbitrator if a vacancy occurs or if an appointed arbitrator is unable to serve promptly.
The hearing shall be conducted by the arbitrator(s) in whatever manner will most expeditiously permit full presentation of evidence and arguments of the parties. The arbitrator(s) shall set the date, time, and place of the hearing, notice of which must be given to the parties by the AAA or FINRA, as applicable, at least 30 calendar days in advance unless the parties agree otherwise. In the event the hearing can't reasonably be completed in one day, the arbitrator(s) will schedule the hearing to be continued on a mutually convenient date.
Any party may be represented by an attorney or other representative (excluding any Citi supervisory employee) or by himself or herself. For an employee or former employee without representation, the AAA or FINRA, as applicable, may, upon request, provide reference to institutions that might offer assistance.
The arbitrator(s) shall maintain the confidentiality of the hearings unless the law provides to the contrary. The arbitrator(s) shall have the authority to exclude witnesses, other than a party and the party's representative(s), from the hearing during the testimony of any other witness. The arbitrator(s) also shall have the authority to decide whether any person who isn't a witness may attend the hearing.
The arbitrator(s) for good cause shown may postpone any hearing upon the request of a party or upon the arbitrator's own initiative and shall grant such postponement when all of the parties agree thereto.
Before proceeding with the first hearing, each arbitrator may take an oath of office and, if required by law, shall do so. The arbitrator(s) may require a witness to testify under oath administered by any duly qualified person and, if it's required by law or requested by any party, shall do so.
In the event a party requests a stenographic record, that party shall bear the cost of such record. If both parties request a stenographic record, the cost shall be borne equally by the parties. In the event the claimant requests a stenographic record, Citi shall bear the cost of obtaining a copy of the record for itself. In the event Citi requests a stenographic record, Citi also shall bear the cost of providing a copy to the claimant.
Unless the law provides to the contrary, the arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement. An award shall not be made solely on the default of a party. The arbitrator(s) shall require the party who's present to submit such evidence as the arbitrator(s) may require for the making of the award.
Discovery requests shall be made pursuant to the rules of the AAA or FINRA, as applicable. Upon request of a party, the arbitrator(s) may order further discovery consistent with the applicable rules and the expedited nature of arbitration.
The arbitrator(s) shall be authorized to consider and rule on prehearing motions, including dispositive motions. Any ruling regarding such motion shall be made consistent with Section 19 of this policy.
The arbitrator(s) shall be the judge of the relevance and materiality of the evidence offered; conformity to legal rules of evidence shall not be necessary.
The arbitrator(s) may receive and consider the evidence of witnesses by affidavit but shall give it only such weight as the arbitrator(s) deems (deem) it entitled to after consideration of any objection made to its admission. All documents to be considered by the arbitrator(s) shall be filed at the hearing.
The arbitrator(s) shall ask whether the parties have any further proof to offer or witnesses to be heard. Upon receiving negative replies, or if satisfied that the record is complete, the arbitrator(s) shall declare the hearing closed and the minutes thereof shall be recorded.
Any party who proceeds with the arbitration after knowledge that any provision or requirement of these procedures hasn't been complied with, and who fails to state objections thereto in writing, shall be deemed to have waived the right to object.
The award shall be made promptly by the arbitrator(s) unless otherwise agreed by the parties or specified by law. The arbitrator(s) shall be instructed to make the award within 30 calendar days of the close of the hearing or as soon as possible thereafter.
The parties shall accept as legal delivery of the award the placing of the award or a true copy thereof in the mail addressed to a party or its representative at the last known address via certified mail, return receipt, personal service of the award, or the filing of the award in any manner that's permitted by law.
The award of the arbitrator may be enforced under the terms of the Federal Arbitration Act (Title 9 U.S.C.) and/or under the law of any state to the maximum extent possible. If a court determines that the award isn't completely enforceable, it shall be enforced and binding on both parties to the maximum extent permitted by law.
Unless otherwise precluded by applicable law, expenses and fees shall be allocated as follows:
The allocation of expenses as provided for in items "a" through "d" may not be disturbed by the arbitrator except where the arbitrator determines that a party's claims were frivolous or were asserted in bad faith.
Any notices or process necessary or proper for the initiation or continuation of an arbitration under these procedures, for any court action in connection therewith or for the entry of judgment on an award made under these procedures, may be served on a party by mail addressed to the party or its representative at the last known address or by personal service, in or outside the state where the arbitration is to be held, provided that reasonable opportunity to be heard with regard thereto has been granted to the party. The AAA or FINRA, as applicable, and the parties also may use facsimile transmission, telex, telegram, or other written forms of electronic communication to give the notices required by these procedures, provided that such notice is confirmed by the telephone or subsequent mailing to all affected parties. Service on the other party must be simultaneous with the filing and be made by the same means.
Any proceeding under this Policy must be brought within the time period provided for within the statute(s) of limitations applicable to the claims asserted by the claimant.
Citi reserves the right to revise, amend, modify, or discontinue the Policy at any time in its sole discretion with 30 calendar days' written notice. Such amendments may be made by publishing them in the Handbook or by separate release to employees and shall be effective 30 calendar days after such amendments are provided to employees and will apply prospectively only. Your continuation of employment after receiving such amendments shall be deemed acceptance of the amended terms.
Except as otherwise provided by this Policy, he arbitrator shall interpret and apply these procedures as they relate to the arbitrator's powers and duties; all other procedures shall be interpreted and applied by the AAA or FINRA, as applicable. Except as otherwise expressly agreed upon, and except as otherwise provided by this Policy, any dispute as to the arbitrability of a particular claim made pursuant to this Policy shall be resolved in arbitration.
If any part or provision of this Policy is held to be invalid, illegal, or unenforceable, such holding won't affect the legality, validity, or enforceability of the remaining parts and each provision of this Policy will be valid, legal, and enforceable to the fullest extent permitted by law.
This matter coming to be heard on Respondent's Motion for Summary Judgment ("Motion") filed pursuant to the Parties' Agreement, i.e., Section 13 of Appendix A: The Employment Arbitration Policy ("Employment Arbitration Policy"), and the Motion having been fully briefed by the Parties:
Claimant asserts that:
In summary, Respondent asserts that Claimant was terminated for admitted poor performance, unrelated to her race.
Based on the Parties' filings, the following facts form the basis for the record and this Award:
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Hemsworth v. Quotesmith Corn. Inc., 476 F.3d 487, 489-490 (7th Cir. 2007); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
As the non-movant, Ms. Boateng must produce admissible evidence of a genuine dispute of material fact. She cannot avoid dismissal with conclusory allegations about how and why she suspects things happened, what she believes may have prompted OneMain's decision to terminate her employment or whether OneMain's decision was misguided or generally unfair. See Yancick v. Hanna Steel Corp., 653 F.3d 532, 548 (7th Cir. 2011) (quoting Mills v. First Fed. Say. & Loan Ass'n of Belvidere, 83 F.3d 833, 841-42 (7th Cir. 1996) ("If the subjective beliefs of plaintiffs in employment discrimination cases could, by themselves, create genuine issues of material fact, then virtually all defense motions for summary judgment in such cases would be doomed").
A party alleging discrimination under Title VII may proceed under the direct or indirect method of proof. Brown v. Advocate South Suburban Hospital, 700 F.3d 1101, 1104 (7th Cir. 2012). Under the direct method of proof, to survive summary judgment, a claimant must offer evidence from which an inference of discriminatory intent can be drawn, either through direct evidence of discrimination or by combining various types of evidence to present a "convincing mosaic" of circumstantial evidence from which a factfinder can reasonably infer discriminatory intent. Id. at 1105. To be convincing, however, the claimant's evidence must point directly to a discriminatory reason for her employer's action and be directly related to the employment decision. Teruggi v. The CIT Group/Capital Finance, Inc., 709 F.3d 654, 660 (7th Cir. 2013).
The record is devoid of any allegation to suggest that Claimant is advancing a direct evidence theory. Further, there is no direct evidence of race discrimination, nor any convincing mosaic of circumstantial evidence pointing to Ms. Boateng's race as the reason her employment was terminated. Ms. Boateng repeatedly testified that no one ever made any remarks to her about her race (Boateng Dep. Tr. 84, lines 21-23); instead, she only arrived at the theory that race might be a factor in her termination after a co-worker suggested it and then "speculating", "looking at all the information, putting things together" and "trying to figure things out". (Boateng Dep. Tr. 84, lines 15-20, Tr. 110, lines 5-19) Accordingly, Ms. Boateng must proceed under the indirect method of proof.
Without direct evidence of race discrimination, Ms. Boateng must show: (1) she was a member of a protected class; (2) she was meeting OneMain's legitimate employment expectations; (3) she suffered an adverse employment decision; and (4) she was treated less favorably than similarly situated employees outside of her protected class. Farrell v. Butler Univ., 421 F.3d 609, 613 (7th Cir 2005); Atanus v. Perry, 520 F.3d 662, 672-73 (7th Cir. 2008). Although it is undisputed that Ms. Boateng is African-American and was terminated from employment, the evidence does not support the other two prima facie prongs: i.e., that she was meeting OneMain's legitimate expectations and that similarly situated, non-African American employees were treated more favorably.
The facts do not establish that Claimant was performing up to her employer's legitimate expectations. Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008); Atanus v. Perry, 520 F.3d 662, 672-73 (7th Cir. 2008); Farrell v. Butler University, 421 F.3d 609, 613 (7th Cir. 2005); Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir. 1997). Based on her own self-assessments in her last two annual performance reviews, Ms. Boateng was only "partially effective". While Ms. Boateng alleges in her Complaint and Memorandum in Opposition (page 1) that she "performed her duties in a satisfactory manner as evidenced by the raises she received", there is no evidence of satisfactory performance, as Ms. Boateng has testified at her deposition that she never met her sales goals both before and after her race code was corrected. (Boateng Dep. Tr. 47, lines 16-22). Claimant also testified she ranked at the bottom, performance-wise, as compared to her peers. See Wingo v. Thyssenkrupp Materials NA, Inc., 2008 WL 4696130 (N.D. Ill. Oct. 23, 2008) (plaintiff could not demonstrate he was meeting his employer's legitimate expectations when he admitted to the errors which resulted in his being disciplined); see also Luckett v. Menasha Material Handling Corp., 2005 WL 2420398 at *13 (N.D. Ill. Sep. 29, 2005) ("As a general rule, an employee's admission that he violated a work rule is enough to establish that an employee did not meet his employer's legitimate expectations."). Moreover, the record does not contain facts concerning what raises Ms. Boateng ever received or the reasons for those raises being given to her.
The monthly production goals that Ms. Boateng and her fellow Branch Account Managers were required to meet clearly amount to legitimate expectations on OneMain's part. They were objectively reasonable and consistently applied — as Ms. Boateng has testified, all Branch Account Managers had the goal of selling 20 loans per month. (Boateng Dep. Tr. 37, lines 22-24, Tr. 38, lines 1-12; Lukacek Dec. ¶ 10); see Dale v. Chicago Tribune Co., 797 F.2d 458, 463 (7th Cir. 1986), cert. denied, 479 U.S. 1066 (1987) (the inquiry into whether the employer's expectations were legitimate is a limited one, focusing on (1) whether the expectations were communicated to the employee and (2) whether the expectations were reasonable). OneMain's performance expectations were communicated to Ms. Boateng in the monthly P&C memos she received as well as in the Letters of Expectation and Records of Discussion she was given during the corrective action process. In each and every document, Ms. Boateng acknowledged understanding OneMain's expectations and the consequence of not meeting them. (Boateng Dep. Ex. Nos. 6, 7, 8, 9, 10, 11, 12, 15) While she also maintains that she was assigned additional "problem-solving" responsibilities that weren't in her job description (Memorandum in Opposition at 3, 5), these additional responsibilities were never noted in the employee portions of her P&C memos, the Letters of Expectation or the Records of Discussion she received; nor is there evidence that Claimant advised the Respondent that she did not have enough time to perform her job duties.
Ms. Boateng claims that she "is comparable to herself, an African American female who was racially coded and believed to be a `White Female' by Human Resources". Memorandum in Opposition at 6.
When all of Ms. Boateng's corrective actions are taken into account, they show that Ms. Boateng received an equal number (four) both before and after her race code was corrected:
As shown above, the evidence does not establish two of the necessary prima facie elements. As a result, OneMain is entitled to summary judgment on that basis alone. See DeLuca v. Winer Industries, Inc., 53 F.3d 793, 798 (7th Cir. 1995) (a plaintiff's "failure to establish a prima facie case makes it unnecessary for [the court] to discuss [defendant's] reasons for terminating him or the issue of pretext").
However, even assuming that Ms. Boateng could make out a prima facie case, her race discrimination claim nevertheless cannot succeed because OneMain had a legitimate, nondiscriminatory reason for terminating her employment, namely, performance, which she admitted did not meet the Respondent's goals. OneMain terminated Ms. Boateng's employment only after she did not demonstrate sustained improvement against her monthly production goals despite being given several chances over a two-year period to do so. As Ms. Boateng admitted at her deposition, she never achieved the 20-loan monthly goal in any month in 2010 or 2011. (Boateng Dep. Tr. 47, lines 16-22) While Ms. Boateng contends that her performance was "better" as a "Black Female" than when she was a "White Female" (Memorandum in Opposition at 9), there is no question that under either "status", her performance consistently did not meet the Respondent's goals for a period of over two years. There is nothing in Title VII that requires an employer to tolerate an employee's substandard performance indefinitely. See Ballance, 424 F.3d at 621 (7th Cir. 2005) (noting that courts "do not sit as a super-personnel department with authority to review an employer's business decision as to whether someone should be fired or disciplined because of a work-rule violation"); see also Wernsing Department of Human Services, 427 F.3d 466, 468 (7th Cir. 2005) ("No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, Title VII does not interfere").
OneMain having articulated a legitimate, non-discriminatory reason for terminating Ms. Boateng's employment, the burden shifts to her to produce evidence of pretext. In her Memorandum in Opposition, Ms. Boateng contends that for the pretext showing, she need only show that membership in a protected class was a motivating factor in OneMain's decision to terminate, because it is undisputed that she received (and merited) corrective action both before and after her race code was corrected.
Pretext requires Ms. Boateng to produce evidence to show that OneMain's proffered reason for terminating her is dishonest and that the true reason is based on discriminatory intent. "A pretext . . . is a deliberate falsehood" — there is no evidence of that here, as Ms. Boateng readily concedes that her job performance was subpar. Forrester v. Rauland-Borg Corp., 453 F.3d 416, 419 (7th Cir. 2006). While Ms. Boateng may believe that OneMain should have disciplined her sooner, when her failure to meet her goals was at its nadir, such a belief on her part does not satisfy the pretext showing. For, as the Seventh Circuit has repeatedly stated, "[flit is not the court's concern that an employer may be wrong about its employee's performance, or be too hard on its employee. Rather, the only question is whether the employer's proffered reason was pretextual, meaning that it was a lie". Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir. 2005); see also Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006) (pretext inquiry must focus on whether the employer's stated reason is honest and not whether it is well-reasoned, wise or accurate). Given that Ms. Boateng has failed to controvert OneMain's evidence which supports its termination decision, there is no factual basis to prove pretext. Accordingly, summary judgment should be granted in OneMain's favor for this reason, as well as the failure to prove two elements of the prima facie case.
Having reviewed and analyzed the Parties' extensive submissions, including the entire transcript of Claimant's deposition, and in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, there are no genuine issues of material fact, and the evidence does not prove Ms. Boateng's claim that she was discriminated against because of her race.
The administrative fees and expenses of the American Arbitration Association ("Association") in the amount of $1,250.00, and the compensation and expenses of the Arbitrator in the amount of $6,500.00, shall be borne by the Respondent, in accordance with Section 23 of the Parties' Dispute Resolution Agreement, i.e., the Employment Arbitration Policy.
This Award is in full settlement of all claims submitted to this Arbitration. All claims not expressly granted herein are hereby, denied.
