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Case 3:09-cv-00133-DRH-PMF Document 27 Filed 03/26/10 Page 1 of 21 Page ID #64

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BETTY D. COOK,

Plaintiff,

-vs-

ILLINOIS DEPARTMENT
OF CORRECTIONS,

Defendant.

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No. 09-133-DRH

MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

NOW COMES the Defendant, ILLINOIS DEPARTMENT OF CORRECTIONS

(“Department”), by and through its attorney, Lisa Madigan, Attorney General for the State of Illinois,

and for its Memorandum of Law in Support of Defendant’s Motion for Summary Judgment, pursuant

to Federal Rule of Civil Procedure 56, states as follows:

I. INTRODUCTION

Plaintiff filed a complaint alleging violation of the Age Discrimination in Employment Act

of 1967 (“ADEA”) (29 U.S.C. §621 et seq.) and the Illinois Human Rights Act on February 20,

2009. On August 20, 2009 this Court dismissed with prejudice Plaintiff’s Illinois Human Rights Act

claims. Plaintiff’s ADEA claim alleges that, starting in March 2007, the Department began to

discriminate against plaintiff because of her age, 49, in violation of the ADEA. See Compl. at ¶ 3.

Plaintiff further alleges that as a result of this alleged discrimination she was forced to retire on June

1, 2008. See Compl. at ¶ 8.

Defendant is entitled to summary judgment in this matter for several reasons. First, the

record does not contain sufficient evidence to allow a reasonable jury to find that any of the alleged

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adverse actions occurred because of Plaintiff’s age. Second, Plaintiff has failed to point to sufficient

evidence that would allow a reasonable jury to find that she was constructively discharged.

II. ARGUMENT

Summary judgment is appropriate where “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 judgment as a matter of

law.” FED. R. CIV. P. 56 (c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Miller v. Am.

Airlines, Inc., 525 F.3d 520, 523 (7th Cir. 2008) (granting summary judgment in a case brought

under the ADEA alleging discrimination); see also Harris v. Franklin-Williamson Human Servs.,

Inc., 97 F. Supp. 2d 892, 899 (S.D. Ill. 2000) (Herndon, J.).

The ADEA prohibits employers from discriminating against employees who are 40 or older

because of their age. See 29 U.S.C. §§ 623(a), 631(a); see also Martino v. MCI Commc’ns Servs.,

Inc., d/b/a Verizon Bus. Servs., 574 F.3d 447, 452 (7th Cir. 2009); Harris, 97 F. Supp. 2d at 904. To

succeed on an ADEA claim, a plaintiff must establish that she would not have received adverse

treatment but for her employer’s intentional age-based discrimination. See Gross v. FBL Fin. Servs.,

Inc., 129 S. Ct. 2343, 2350 (2009) (“a plaintiff must prove that age was the ‘but-for’ cause of the

employer’s adverse decision.”); accord Harris, 97 F. Supp. 2d at 904 (citations omitted).



In order to meet her burden, Plaintiff must prove age discrimination either by relying on (1)

the direct method of proof, which requires presenting direct evidence of age discrimination; or (2)

by relying on the indirect, “burden shifting,” method of proof outlined in McDonnell Douglas. See

Martino, 574 F.3d at 452; Harris, 97 F. Supp. 2d at 904. Plaintiff has failed to offer any direct

evidence that the Department took any of the alleged actions against her because of her age and

therefore cannot prevail under the direct method.

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This leaves Plaintiff to proceed under the indirect method of proof. Under the indirect

method, Plaintiff must demonstrate that (1) she was a member of the protected class (age 40 or

over); (2) she was meeting her employer’s legitimate expectations; (3) despite her performance, she

was he was subject to an adverse employment action; and (4) similarly situated employees who were

either under 40 or substantially younger than Plaintiff were treated more favorably. See Martino,

574 F.3d at 453 (citations omitted); Harris, 97 F. Supp. 2d at 904 (citations omitted). If Plaintiff

satisfies all four of these criteria, then the defendant may provide a legitimate, nondiscriminatory

reason for the adverse employment action. Martino, 574 F.3d at 453 (citations omitted). Assuming

the defendant offers such a reason, Plaintiff may then challenge the stated reason as a pretext for

discrimination. Id. However, the ultimate burden to prove intentional discrimination always

remains with Plaintiff. Id. For the purposes of this motion Defendant does not deny that Plaintiff

is a member of a protected class (over 40 years of age). However, Plaintiff fails to meet any of the

other criteria.

A.

PLAINTIFF’S FAILS TO PROVE SHE WAS DISCIPLINED BECAUSE OF HER AGE

Plaintiff alleges that on six occasions she was disciplined by Casey because of her age.

Largely, Plaintiff does not deny she engaged in the conduct for which she was disciplined, instead

arguing that she would not have been disciplined but for her age. The Seventh Circuit has frequently

rejected the notion that courts are a “super-personnel department” to review the wisdom and

judgment of employers. See Rabinovitz v. Pena et al., 89 F.3d 482, 487 (7th Cir. 1996) (citations

omitted); see also Lindsey v. Walgreen Co., No. 08-C-3547, 2009 WL 4730953 at *7 (N.D. Ill. Dec.

8, 2009) (holding that while the plaintiff characterized her decision [which resulted in termination]

as an appropriate exercise of professional judgment, it was for [the defendant] to decide whether she

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exercised that judgment properly). As such, the only relevant question is whether Plaintiff was

subjected to the complained of discipline because of her age.

At the outset, Plaintiff fails to satisfy the indirect method of proof because she cannot

establish that she had been performing the legitimate expectations of the Department prior to

receiving discipline in 2007. Plaintiff joined the counseling department as a Correctional Counselor

I in February 2004. See STATEMENT OF UNDISPUTED MATERIAL FACTS (“SOF”) at 5. From that

point forward the undisputed evidence shows that Plaintiff struggled to keep up with the demands

of the counseling job. Indeed the counselors that worked with Plaintiff when she started as a

counselor reiterated the same general theme: Plaintiff was a hard worker but struggled to grasp the

job. See SOF 9. This was reflected in Plaintiff’s performance evaluations in both 2004 (by then

Assistant Warden Allan Wisely) and 2005 (by Assistant Warden Ann Casey). See Exs. 12-14.

Indeed, in her 2 month performance evaluation, for the “general appraisal of employee performance”

section Plaintiff was marked as “needs improvement” in 7 out of 8 categories. See Ex. 12 at 1030.

In response to this evaluation as a counselor Plaintiff admitted that she still had a lot to learn and was

not “performing at peak efficiency.” See Ex. 12 at 1035. Two months later, at her four-month

performance evaluation, Plaintiff was downgraded in the category of “quality.” See Ex. 13 at 1019.

Plaintiff did not object to this evaluation of her performance. See id. at 1022.

In February 2005, Assistant Warden Ann Casey became Plaintiff’s supervisor. In February

2006 Plaintiff was disciplined and assessed a one day suspension for abandoning her post. See Ex.

17. Plaintiff does not allege that this discipline was discriminatory. From this time up to the Spring

of 2007, Casey had spoke with Plaintiff on numerous occasions to correct mistakes. See SOF 21.

Casey did this without imposing discipline in the hope that Plaintiff would improve. See SOF 22.

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Indeed, in a letter written by Plaintiff in January 2007, Plaintiff admits that she was aware that Casey

had concerns about her job performance. See Ex. 19 at ¶ 3. Indeed, in that same letter, Plaintiff

admitted that she was behind in her work. See id. By Spring 2007, however, Plaintiff had not

improved and Casey was left with no choice but to start imposing discipline. See SOF 23. Plaintiff

received discipline four (not six) times for failure to meet job expectations between April and July

of 2007. As explained below, each of the disciplines was the result of Plaintiff’s failure to meet the

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reasonable expectations of the Department.

1. Inappropriate C.H.A.M.P.S. Entry

In April 2007 Plaintiff was referred for discipline by her supervisor, Casey, for making

unprofessional personal comments, including vulgarity, regarding an offender in the C.H.A.M.P.S.

system that the Department uses to track inmate contacts and issues. See SOF 25-26; Ex. 23. A

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hearing was held, for which Casey was not present, and a hearing officer who had no supervisory

authority over Plaintiff, Mark Beckman, determined that the charges against Plaintiff should be

sustained and recommended a written reprimand. See Ex. 23. Plaintiff grieved this decision and

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the Department agreed to reduce the amount of discipline to counseling. See Ex. 23.

Plaintiff does not offer any direct evidence that this discipline was imposed because of her

age. Plaintiff does not deny that she wrote the C.H.A.M.P.S. entry but instead argues that it was an

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Plaintiff was referred for discipline 6 times, but only received discipline 4 times. See

Exs. 28 & 30.

2

The entry at issue was for inmate Cobb and is included in Ex. 23.

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The discipline that Plaintiff received during March-July 2007 followed a “progressive
discipline” system which is a list proscribed in the collective bargaining agreement which sets
forth what discipline should be imposed based upon what discipline came before. See SOF 24;
Exs. 23, 25, 27-28.

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appropriate entry. See Ex. 23. Beckman found that the C.H.A.M.P.S. entry at issue was

inappropriate in that it violated the institutional and administrative directives which required

Department employees to remain professional. See Ex. 23. That is a professional judgement that

the Department is in the best position to assess and should not be re-weighed here. See Rabinovitz,

89 F.3d at 487. While Plaintiff could not identify anyone who had made a C.H.A.M.P.S. entry

similar to her, she does argue that Casey had in the past called other counselors and asked them to

change C.H.A.M.P.S. entries without imposing discipline. See Ex. 1 at 154:6-12. The only person

that Plaintiff immediately identified as receiving such a phone call was Deb Brink, who was the

same age as Plaintiff. See id. at 154:13-20. Landreth also received such a call once when Casey

could not understand an entry Landreth had made. See Ex. 6 at 14:3-6. Landreth, who is older than

Plaintiff, was asked to make the entry more clear and was not disciplined. See id. at 14:16-15:6.

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Plaintiff later claimed that both Toennies and Feazel also made inappropriate entries into

C.H.A.M.P.S. However, Plaintiff could not explain when such entries were made, how they were

similarly unprofessional, or whether their supervisor, Casey, was even aware of the entries.

Regardless, Plaintiff admitted that she was not aware of anyone making an entry similar to the one

she made. See Ex. 1 at 155:7-10.

A person is considered to be similarly situated when she is directly comparable in all material

respects. See Herron v. Daimler Chrysler Corp., 388 F.3d 293, 300 (7th Cir. 2004); Clifford v.

Patterson Cos., Inc. & Patterson Medical Supply, Inc., No. 08-C-0828, 2009 WL 3852447 at *15

(N.D.Ill. Nov. 18, 2009) (citing Hudson v. City of Chi. Transit Auth., 375 F.3d 552, 561 (7th Cir.

2004)). Relevant factors the court should consider when making this determination include whether

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Casey was only at Centralia from 2005-2007, during which time Plaintiff and Brink

were 48-50 and Landreth was 50-52. SOF 1, 10, 37, 48, 49.

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the employees reported to the same supervisor, were subject to the same standards, and possessed

comparable qualifications. See id. In addition, the similarly situated employee must possess a

“comparable set of failings” to the plaintiff. See Clifford, No 08-C-0828 at *15 (citing Burks v. Wis.

Dept. of Transp., 464 F.3d 744, 751 (7th Cir. 2006)). Indeed, the Seventh Circuit has directed that

“in disciplinary cases – in which a plaintiff claims that [she] was disciplined by [her] employer more

harshly than a similarly situated employee based on some prohibited reason–a plaintiff must show

that [she] is similarly situated with respect to performance, qualifications, and conduct.” Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000) (citations omitted).

“Where both the plaintiff and those allegedly favored over [her] are within the same protected

class, ‘the prima facie case under the ADEA require[s] a sufficient disparity in ages.’” Bennington

v. Caterpillar Inc., 275 F.3d 654, 660 (7th Cir. 2001) (citations omitted). In determining what

constitutes a “sufficient disparity in ages” the Seventh Circuit has opined that “a ten year difference

in ages (between the plaintiff and [her] replacement) is presumptively ‘substantial.’” Id. (a five-year

difference in age between plaintiff and the employees allegedly favored was not substantial enough)

(citing Hartley v. Wis. Bell Inc., 124 F.3d 887, 893 (7th Cir. 1997) (a seven-year difference was not

significant enough); accord Harris, 97 F. Supp. 2d at 905 (a 5-7 year age difference was not

substantial). Where the age difference between the plaintiff and the individual treated more

favorably is less than ten years, “the plaintiff still may present a triable claim if [she] directs the court

to evidence that [her] employer considered [her] age to be significant.” Bennington, 275 F.3d at 660

(citations omitted); see also Harris, 97 F. Supp. 2d at 905.

Here, Landreth, Brink, and Feazel are all within the protected class (over age 40). See SOF

1, 48, 49. As such, they can only be considered similarly situated if Plaintiff can show there was a

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sufficient disparity in age. Landreth is older than Plaintiff and Brink is the same age as Plaintiff.

See SOF 1, 48, 49. As such, neither Landreth nor Brink can be considered similarly situated. Feazel

is younger than Plaintiff by nine years, which is not “presumptively substantial.” See SOF 50;

Bennington, 275 F.3d at 660. Where, as here, the age difference is less than ten years, Plaintiff can

only present a triable claim if there is evidence that the Department considered Plaintiff’s age to be

significant. See id. Plaintiff has failed to provide any such evidence and therefore Feazel cannot,

as a matter of law, be considered a similarly situated employee outside of the protected class.

Furthermore, there is no evidence that Landreth, Brink, or Feazel made an unprofessional entry

similar to the one for which Plaintiff was disciplined.

Toennies is not within the protected class because he is under the age of 40. See SOF 51.

Even so, Toennies fails to be similarly situated because the evidence fails to show a specific instance

where Toennies included an unprofessional personal opinion about an offender in a C.H.A.M.P.S.

entry similar to the one for which Plaintiff was disciplined, or that Casey knew about such an entry.

Because Plaintiff cannot establish that a similarly situated employee outside of the protected class

engaged in similar conduct of which the decision maker was aware and received favorable treatment,

Plaintiff cannot establish that this discipline was because of her age.

2. Failure to See Inmates Within 90 Days

In April 2007 Plaintiff was referred for discipline by Casey for failing to see (i.e. making

contact with) 62 of the inmates on her caseload within the required 90 days. See SOF 27-28; Ex. 24.

A hearing was held, for which Casey was not present, and a hearing officer who had no supervisory

authority over Plaintiff, Michelle Taphorn, determined that, with the exception of one of the inmates

(whom Taphorn found was seen within the 90 days), the charges against Plaintiff should be sustained

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and recommended a 1 day suspension. See Ex. 24. Plaintiff grieved this decision and the

Department agreed to reduce the amount of discipline to an oral reprimand. See Ex. 24.

Plaintiff does not offer any direct evidence that this discipline was imposed because of her

age. Plaintiff claims that she did see her inmates within the 90 days but failed to log those contacts

in the C.H.A.M.P.S. system. See Ex. 24. Taphorn determined that Plaintiff had ample time (13

days) to enter the contacts into C.H.A.M.P.S. and, since the inmates were not logged, there was no

evidence to support Plaintiff’s claim that she saw the inmates on time. See Ex. 24. Plaintiff has not

identified any similarly situated person who missed a similar number of contacts. Indeed, the only

counselor, other than Plaintiff, the evidence showed missed a contact was Landreth. See Ex. 6 at

16:19-17:1. Landreth would have been the same age older than Plaintiff at the time of the incident

and therefore is in the protected class. See SOF 1, 48. Moreover, there is no evidence to suggest that

Landreth missed as many contacts as Plaintiff. Again, at best the undisputed evidence proves that

Casey’s decision whether or not to impose discipline had nothing to do with the employee’s age.

Because Plaintiff cannot establish that a similarly situated employee outside fo the protected class

engaged in similar conduct of which the decision maker was aware and received favorable treatment,

Plaintiff cannot establish that this discipline was because of her age.

3. Failure to Sufficiently Screen Inmate Visitor List

In April 2007 Plaintiff was referred for discipline by Casey for failing to properly review an

inmate file prior to authorizing his visitor list. See SOF 29-30; Ex. 25. As a result, Plaintiff

approved the victim of an inmate to visit the inmate, in violation of Department policy. See Ex. 25.

A hearing was held, for which Casey was not present, and hearing officer Beckman determined the

charges against Plaintiff should be sustained and recommended a 3 day suspension. See Ex. 25.

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Plaintiff does not offer any direct evidence that this discipline was imposed because of her

age. Plaintiff does not deny that she approved the victim to see the inmate but instead argues that

at the time she reviewed the inmate’s master file the name of the victim was not in there. See Ex.

25. Beckman determined that there was sufficient information in the master file that Plaintiff should

have known to look into the matter further. See Ex. 25. This is a professional judgement that the

Department is in the best position to assess and should not be re-weighed here. See Rabinovitz, 89

F.3d at 487.

Here Plaintiff does identify someone else who she alleges made the same mistake–Feazel.

However, as explained above, Feazel is within t he protected class and was not substantially younger

than Plaintiff. See SOF 1, 50. In addition, the record shows that the Department believed it was not

Feazel who made this error because the signature at issue did not appear to be Feazel’s. See Ex. 26.

As such, there is no basis to infer discriminatory intent.

4. Failure to Follow the Chain of Command

In June 2007 Plaintiff was referred for discipline by Casey for failing to follow the chain of

command. See SOF 34-35; Ex. 27. Plaintiff sent an email to Deb Gordon, a Department employee

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in Springfield who was in charge of the C.H.A.M.P.S. system. See Ex. 27. In that email Plaintiff

requested that some dates in the C.H.A.M.P.S. system be altered. See Ex. 27. A hearing was held,

for which Casey was not present, and hearing officer Beckman determined Plaintiff violated the

chain of command by contacting Gordon instead of Casey and recommended a 5 day suspension.

See Ex. 27.

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The chain of command for the counseling department was: “call A/W Casey first. If she
isn’t here then go through Assistant Warden Flagg and if he isn’t here, contact Warden Robert.”
See Ex. 27 at May 27, 2007 Counseling Department Meeting Minutes.

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Plaintiff does not offer any direct evidence that this discipline was imposed because of her

age. Plaintiff likewise offers no similarly situated employees who were treated more favorably than

her. Plaintiff does not deny that she sent the email but argues that this is what the counselors were

supposed to do when they needed things changed in C.H.A.M.P.S. See Ex. 27. There is no evidence

that anyone other than Plaintiff had done this. See, e.g., Ex. 6 at 15:14-19; Ex. 5B at 124:16-20. In

addition, the return email from Gordon to Plaintiff stated that these kinds of changes had to be made

through Plaintiff’s supervisor. See Ex. 27. It was Gordon who forwarded Plaintiff’s email to Casey

and the referral followed. See Ex. 27. There is no evidence to suggest Gordon knew Plaintiff’s age

nor that Gordon forwarded the email to Casey Because fo Plaintiff’s age. Beckman determined that

Plaintiff’s actions did violate the requirement that employee’s always follow the chain of command.

See Ex. 27. Again, this is a professional judgement that the Department is in the best position to

assess and should not be re-weighed here. See Rabinovitz, 89 F.3d at 487. As such, there is no basis

to infer discriminatory intent.

5. Attempting to Falsify an Official Record

Also in June 2007 Plaintiff was referred for discipline by Casey for attempting to alter an

official document. See SOF 34, 36; Ex. 28. This referral arose out of the same incident for which

Plaintiff was referred for going outside of the chain of command discussed above. See Ex. 28. A

hearing was held, for which Casey was not present, and hearing officer Beckman determined the

charges against Plaintiff should be sustained and recommended a 10 day suspension. See Ex. 28.

Plaintiff filed a grievance, and the discipline was expunged as duplicative because it arose from the

same conduct as the previous discipline. See Ex. 28.

Plaintiff does not offer any direct evidence that this referral was made because of her age.

Plaintiff likewise offers no similarly situated employees who engaged in similar conduct were treated

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more favorably than her. Casey asked the Department’s labor relations group for guidance and was

advised to seek separate discipline for falsification and chain of command charges. See Ex. 29; see

also Ex. 2 at 184:13-21. As such, Plaintiff cannot prove any discriminatory intent.

In order to succeed on a claim of discrimination, a plaintiff must prove there was a materially

adverse employment decision based upon the prohibited discrimination. See Martino, 574 F.3d at

453. In order to qualify as an adverse employment decision, the decision must be materially adverse,

not merely an inconvenience or a change in job responsibilities. See Griffin v. Potter, 356 F.3d 824,

829 (7th Cir. 2004) (citations omitted). “An adverse employment action is one that significantly

alters the terms and conditions of the employee’s job.” Id. In addition, general hostility and stray

comments do not qualify as actionable adverse employment actions unless the hostility was severe

and pervasive. Id. Here, because the Plaintiff received no discipline, there is no adverse employment

action.

6. Failure to Timely Complete Tasks

In May 2007 Plaintiff was referred for discipline by Casey for failing to complete tasks in a

timely manner. See SOF 31-32;Ex. 30. This referral was based upon incident reports filed by two

non-counselor employees which alleged that Plaintiff was not classifying her inmates in a timely

manner. See Ex. 30. A hearing was held, in which Casey was not present, and hearing officer

Beckman determined that, because the institutional rules cited in the referral had been rescinded, the

charges should be dismissed. See Ex. 30. As a result Plaintiff received no discipline. See SOF 32;

Ex. 30.

Plaintiff does not offer any direct evidence that this referral was made because of her age.

Indeed, this referral was based upon the incident reports written by non-counselor employees about

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whom Plaintiff does not otherwise complain. See Ex. 30. There is no evidence to suggest that these

employees knew of Plaintiff’s age or that their incident reports were written because of Plaintiff’s

age. There is also no evidence that any other employee’s who had similar incident reports written

about them were not disciplined. Regardless, because Plaintiff did not receive discipline, there is

no adverse employment action, and there is no basis to infer any discriminatory intent.

B.

PLAINTIFF’S CLAIM THAT SHE WAS NOT PROMOTED BECAUSE OF HER AGE IS NOT
SUPPORTED BY THE UNDISPUTED EVIDENCE

Plaintiff alleges that the Department refused to promote her to Correctional Counselor III

because of her age. First, the undisputed evidence shows that historically there was only one

Correctional Counselor III at Centralia and that after the last Correctional Counselor III retired in

March 2007, Centralia has neither posted nor filled the Correctional Counselor III job. See SOF 7,

14, 15; Ex. 2 at 86:12-17. As such, there was no such job for Plaintiff to promote to. Second,

Plaintiff has offered no direct evidence that the Correctional Counselor III job was not posted

because of Plaintiff’s age. Indeed, the undisputed evidence shows that the reason the Counselor III

job was not posted was primarily budgetary and was made by Department officials in Springfield.

See SOF 16. There is no evidence to suggest that these officials based their decisions upon

Plaintiff’s age. As such, Plaintiff’s claim that the Department discriminated against her because of

her age when it failed to promote her to Correctional Counselor III fails.

Plaintiff argues that because the Counselor III had historically taken care of working in

receiving (where new inmates are received into the prison), the receiving assignment was the

Counselor III job. Plaintiff contends that, because she took over the receiving assignment when the

last Counselor III retired, she was therefore doing Counselor III work and should have been

promoted. This misstates the undisputed facts. Plaintiff did take over the receiving assignment, but

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did not take over any of the other tasks assigned to a Counselor III. Specifically, a Counselor III was

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considered to be a lead worker, with authority to review work, approve time off, and provide input

into performance evaluations. See Ex. 18. Plaintiff admits she never had any of these tasks assigned

to her. See SOF 17. Moreover, after the last Counselor III retired, only Counselor IIs remained in

the counseling department. See SOF 12. The receiving assignment still had to be completed by

someone and, absent a Counselor III, a Counselor II had to do that job. Indeed, the supervisor for

the counseling department, Casey, checked the job description of a Counselor II to ensure that the

counselor working in receiving would not be working outside of their job assignment. Furthermore,

since Plaintiff retired, the Correctional Counselor III job at Centralia has remained vacant and has

still not been posted. See SOF 14-15.

A change in job responsibilities alone does not constitute an adverse employment action. See

Griffin, 356 F.3d at 829. In addition, Plaintiff has not identified any similarly situated person who

was treated more favorably than her with respect to a Correctional Counselor III promotion.7

Therefore, Plaintiff has failed to state a prima facie case under the indirect method.

Finally, Plaintiff has offered no evidence that the decision to have her work in receiving as

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Plaintiff was not the only counselor who received additional duties when the last

Counselor III retired. See SOF 12. Because the counseling department went from having 6
counselors to 3, the duties of those that left were divided amongst those counselors that
remained. See SOF 13.

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Plaintiff states in her complaint that the Department “wanted Plaintiff to retire so that a
female, under 40 years of age, would be able to be promoted to Plaintiff’s job.” Complaint at ¶
7(F). At her deposition Plaintiff identified said female as Feazel. See Ex. 1 at 203:5-12.
However, Plaintiff also admitted that she did not think Feazel was interested in the Correctional
Counselor III promotion. See id. at 199:8-11. Moreover, Feazel cannot be a similarly situated
person because she is within the protected class and not substantially younger than Plaintiff. See
SOF 1, 50.

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a Counselor II was made because of her age. Plaintiff alleges that when she went to Casey to

complain about the amount of work after the Counselor III and two other counselors left Centralia,

Casey stated “well, you can always take a different job or you can just retire.” See Ex. 1 at 147:8-9.

This statement is not sufficient to infer any discriminatory animus. See Harris, 97 F. Supp. 2d at

905-906 (statements that plaintiff should “just retire” and an offer to “buy [plaintiff] out” did not

demonstrate age animus) (citing Halloway v. Milwaukee County, 180 F.3d 820, 825 (7th Cir.1999)

(requests that an employee retire are not necessarily a reference to the employee’s age.)) As such,

this statement does not infer that the decision to assign Plaintiff to receiving without promoting her

to Counselor III was discriminatory because of Plaintiff’s age.

C.

PLAINTIFF FAILS TO PROVE HER EVALUATIONS BY CASEY AND FLAGG WERE
DISCRIMINATORY

Plaintiff makes three allegations concerning her performance evaluations. First, Plaintiff

alleges that Casey downgraded her 2006-2007 performance evaluation without doing quarterly

evaluations the year prior. Second, Plaintiff alleges that Casey did a quarterly evaluation of her in

an untimely manner. Third, Plaintiff complains that when she returned from medical leave in

November 2007, Flagg re-did her 2006-2007 evaluation and did another quarterly evaluation. Even

if all of these facts are taken as true, there is no evidence that Plaintiff suffered any adverse

employment action from these evaluations. Plaintiff filed a grievance with the union regarding

Casey’s evaluations. See SOF 33. The Department agreed that quarterly evaluations had not been

done and expunged Casey’s 2006-2007 evaluations. See SOF 33; Ex. 16. As such, Casey’s

evaluations were expunged from Plaintiff’s record. Further, there is no evidence that Casey’s 2006-

2007 evaluations of Plaintiff were based on her age.

As for Flagg’s evaluation of Plaintiff in November 2007– this was a positive evaluation

completed pursuant to the grievance resolution which replaced Casey’s when it was expunged. See

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Ex. 16. As such, there is no basis for Plaintiff to complain about Flagg’s evaluation. Regardless,

with respect to all of these evaluations, there is no direct evidence that these evaluations were done

because of Plaintiff’s age. Moreover, these evaluations cannot be considered adverse employments

actions since (1) Casey’s were expunged; and (2) Flagg’s were positive.

D.

PLAINTIFF’S REMAINING CLAIMS ARE NOT PERVASIVE ENOUGH TO ESTABLISH AN
ADVERSE EMPLOYMENT ACTION

Plaintiff makes a number of additional claims that she alleges show the Department’s

discriminatory intent. Specifically, Plaintiff complains that the Department discriminated against

her because of her age when: (1) Feazel, who was in the same position as Plaintiff, frequently asked

about Plaintiff’s retirement; (2) Warden Flagg told Plaintiff, on the day she returned from vacation,

that she had inmates to see; (3) Casey changed Plaintiff’s job assignment three times in four months;

(4) Flagg denied Plaintiff time during work hours to meet with the union to discuss her pending

discipline; (5) In May 2007 Plaintiff received a counseling memo for arriving five minutes late to

work; (6) Feazel knew about Plaintiff’s discipline before Plaintiff; (7) Casey was not nice to

Plaintiff; and (8) Casey called Plaintiff on the radio and made rude comments. First, Plaintiff offers

no evidence that any of these actions were taken because of Plaintiff’s age. In addition, as explained

below, even taken together these actions are not pervasive enough to constitute an adverse

employment action.

In Griffin, the plaintiff alleged that she suffered an adverse employment action when the

defendant: changed her shift; lengthened her commute by transferring her; unfairly disciplined her;

substituted a favorable evaluation for a more favorable one; issued her letters of warning; assigned

her to difficult cases and gave her additional work that she perceived as outside her normal job

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responsibilities; refused to approve annual leave requests when work was backlogged; and denied

her a parking permit for approximately four days. See Griffin, 356 F.3d at 829. The plaintiff also

argued that her supervisor was generally hostile to her and that in staff meetings would comment that

plaintiff was a “bad influence on the office” and that plaintiff “thought she knew everything.” See

id at 829-830.

The Seventh Circuit held that “[a]n adverse employment action is one that significantly alters

the terms and conditions of the employee’s job . . . and none of these did.” Griffin, 356 F.3d 824 at

829 (internal citations omitted). The Seventh Circuit further held that “[g]eneral hostility and

8

comments do not qualify as actionable adverse employment actions unless the hostility was severe

and pervasive.” Id. Indeed, the Seventh Circuit found that while the “supervisor’s comments may

have created an ‘unpleasant’ environment, these comments were not so severe and pervasive as to

be actionable.” Id. at 829-830.

In this case, like in Griffin, Plaintiff has not established that the actions about which she

complains “significantly alter[ed] the terms and conditions of [her] job.” See id. at 829. Indeed,

many of the same complaints in Griffin appear here and, as in that case, do not rise to the level of

an adverse employment action. See also Beery v. Clean Seal, Inc., No. 3:07-CV-636-CAN, 2009

8

In support of its holding in Griffin, the Seventh Circuit cited: Johnson v. Cambridge
Indus., 325 F.3d 892, 901 (7th Cir.2003) (harder work assignments); Stutler v. Ill. Dep’t of
Corr., 263 F.3d 698, 702-03 (7th Cr. 2001) (lateral transfer without loss of benefits, increased
commute); Haugerud v. Amery Sch. Dist., 259 F.3d 678, 691-92 (7th Cir.2001) (additional job
responsibilities); Grube v. Lau Indus., 257 F.3d 723, 728 (7th Cir.2001) (altered work hours,
negative performance evaluations, unfair reprimands); Oest v. Ill. Dep’t of Corr., 240 F.3d
605, 613 (7th Cir.2001) (oral and written reprimands); Bell v. EPA, 232 F.3d 546, 555 (7th
Cir.2000) (trivial matters); Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.2000)
(refused preferred vacation schedule); Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 886
(7th Cir.1989) (increased travel time).

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Case 3:09-cv-00133-DRH-PMF Document 27 Filed 03/26/10 Page 18 of 21 Page ID #81

WL 4723280 at *3 (N.D.Ind. Dec. 8, 2009) (“not everything that makes an employee unhappy is an

actionable adverse action. Otherwise, minor even trivial employment actions that ‘an irritable,

chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.’” (citing

Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996))). In addition, Plaintiff offers no evidence

that any of the comments by Feazel or Casey were related to Plaintiff’s age. See, e.g., Halloway, 180

F.3d at 825 (requests that an employee retire are not necessarily a reference to the employee’s age.)

Nor does Plaintiff allege facts to establish that these comments and Casey’s alleged general hostility

towards Plaintiff were sufficiently severe and pervasive to establish an adverse employment action.

As such, Plaintiff has failed to prove she suffered an adverse employment action with regards to

these remaining claims, and there is no basis to draw an inference of discriminatory intent.

E.

PLAINTIFF HAS NOT SHOWN SHE WAS CONSTRUCTIVELY DISCHARGED

Plaintiff alleges in her Complaint that she was forced to retire in June 2009. Compl. at ¶ 8.

In order to prove this allegation, Plaintiff must prove constructive discharge. To state a claim for

constructive discharge, plaintiff must prove her working conditions were so intolerable that a

reasonable person would have been compelled to resign. See Rabinovitz, 89 F.3d at 489 (citations

omitted). In so doing, the plaintiff must show that the working conditions were more than merely

intolerable; they must have been intolerable in a discriminatory way. Id. In addition, the plaintiff

may not be unreasonably sensitive to her working environment and that she must seek redress while

remaining in her job unless confronted with an aggravating situation beyond ordinary discrimination.

Id.

First, Plaintiff’s alleged constructive discharge occurred six months after the allegations

contained in the EEOC charge. Indeed, aside from the one alleged conversation with Bates in May

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2008, there is not a single complained of event after November 2007. Plaintiff admits she had no

contact with Casey after June 28, 2007. See SOF 38. Plaintiff further admits she had no issues after

she returned from leave in November 2007 until an alleged conversation with Bates in May 2008.

See SOF 43. If Plaintiff did not resign in November 2007, she cannot claim that her work

environment was intolerable six months later when, by her own testimony, things were going better

for her.

Neither does the conversation Plaintiff allegedly had with Bates in May 2008 prove

constructive discharge. This conversation did not under any standard cause Plaintiff’s work

conditions to be unbearable. Indeed, Plaintiff’s work assignment was never changed. See SOF 44.

In Rabinovitz, the plaintiff claimed that he was constructively discharged (specifically, forced to

resign) in October 1992 as a result of discrimination based upon his religion and age. See

Rabinovitz, 89 F.3d at 486-487. Specifically, the plaintiff claimed that he was generally “subjected

to constant mean, humiliating insults” and alleged the following acts which allegedly caused his

discharge: “[a] lowered performance rating in April 1991, [] workplace restrictions of April 1991,

[] refusal of his request to start work at 6 a.m., his business trip that coincided with the arrival of the

EEOC investigator, and [a] comment allegedly made by [his supervisor] to the effect that plaintiff

could quit if he was not happy with the job.” Id. at 489. In that case the court held that “[a]t most,

these incidents suggest that friction existed between [plaintiff] and his supervisors, not that his job

was so intolerable that he was forced to resign.” Id. at 489. Tellingly, regarding the comment by

that plaintiff’s supervisor, the court held that “only an unreasonably sensitive employee would feel

compelled to resign after hearing such a remark.” Id. at 489-490. Moreover the court noted that,

with regard to the workplace restrictions, “not only do they not appear to be based on a

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Case 3:09-cv-00133-DRH-PMF Document 27 Filed 03/26/10 Page 20 of 21 Page ID #83

discriminatory motive, but [plaintiff] endured them for a year and a half before resigning.” Id. at

489. The court concluded that “taken together, these events would not have compelled a reasonable

employee to resign” and therefore affirmed the entry of summary judgment for the defendant on the

constructive discharge claim. Id. at 490.

Here, Bates alleged statement that he was going to change her work assignment is far more

innocuous than the alleged conduct in Rabinovitz. Not only would the new assignment have still

been within the counseling department, but such a change was never actually made. See SOF 44.

As such, like in Rabinovitz, a reasonable employee would not be compelled to resign after having

heard such a remark. Moreover, Plaintiff had already endured the bulk of the incidents about which

she now complains and had remained in her position for nearly six months, without further incident,

prior to this statement allegedly being made Bates. As such, like in Rabinovitz, the Plaintiff has

failed to prove that her working conditions were unbearable and therefore Plaintiff cannot prove

constructive discharge.

IV. CONCLUSION

For the foregoing reasons, the Defendant, ILLINOIS DEPARTMENT OF CORRECTIONS,

respectfully requests that this honorable Court enter summary judgment in its favor.

Respectfully submitted,
ILLINOIS DEPARTMENT OF CORRECTIONS,

Defendant,

LISA MADIGAN, Attorney General,
State of Illinois,
/s/Joanna Belle Gunderson
JOANNA BELLE GUNDERSON, # 6286292
Assistant Attorney General
Attorney for Defendant
500 South Second Street
Springfield, IL 62706
Telephone: (217) 782-1841
Facsimile: (217) 524-5091
[email protected]

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Case 3:09-cv-00133-DRH-PMF Document 27 Filed 03/26/10 Page 21 of 21 Page ID #84

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BETTY D. COOK,

Plaintiff,

-vs-

ILLINOIS DEPARTMENT
OF CORRECTIONS,

Defendant.

)
)
)
)
)
)
)
)
)
)

No. 09-133-DRH

CERTIFICATE OF SERVICE

I hereby certify that on March 26, 2010, I electronically filed the foregoing Memorandum

in Support of Defendant’s Motion for Summary Judgment with the Clerk of Court using the

CM/ECF system which will send notification of such filing to the following counsel of record for

Plaintiff:

Thomas O. Falb
[email protected]

and I hereby certify that on March 26, 2010, I mailed by United States Postal Service, the

document to the following non-registered participant:

NONE

Respectfully submitted,

/s/Joanna Belle Gunderson
JOANNA BELLE GUNDERSON
Illinois Bar # 6286292
Assistant Attorney General
Attorney for Defendant
500 South Second Street
Springfield, IL 62706
Telephone: (217) 782-1841
Facsimile: (217) 524-5091
[email protected]

21