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Balogun v. Board of Regents of University of Wisconsin System

United States District Court, W.D. Wisconsin

July 26, 2019




         This case is set for a jury trial commencing August 12, 2019, to resolve plaintiff Kehinde (“Tony”) Balogun's claims against the University's Board of Regents, his former supervisor, Kevin Cherek, and Cherek's supervisor and AIMS director, Bobby Burrow. In advance of the final pretrial conference scheduled for July 30, 2019, the court issues the following opinion and order with respect to the reserved portion of defendants' motion for summary judgment and the parties' pending motions in limine.


         I. Defendants' Motion for Summary Judgment (dkt. #22)

         In its summary judgment decision, the court reserved as to the discrimination claim, asking plaintiff to “provide any case law allowing a discrimination claim to proceed where the plaintiff is the only member of his protected class.” (Summ. J. Op. (dkt. #60) 21.) The court also asked for the performance evaluations of Mutchler and Bradley, who plaintiff had identified as his two closest comparators. (Id.) Otherwise, the court warned, “plaintiff's discrimination claim is unlikely to survive to trial.” (Id.) Having reviewed plaintiff's follow-up submissions, defendants' summary judgment motion will now be granted on the discrimination claim.

         While there is no dispute that plaintiff worked on the helpdesk with both Mutchler and Bradley, and made less than they did, their performance evaluations demonstrate that they were not “similarly situated” for purposes of acting as appropriate comparators. The inquiry to determine whether employees are similarly situated is “flexible, common-sense, and factual.” David v. Board of Trs. of Comty. Coll. Dist. No. 508, 846 F.3d 216, 225-26 (7th Cir. 2017) (quoting Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012)). Typically, a plaintiff must show that his comparator: “(1) dealt with the same supervisor, (2) w[as] subject to the same standards, and (3) engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish [his] conduct or the employer's treatment of [him].” Orton-Bell v. Indiana, 759 F.3d 768, 777 (7th Cir. 2014) (quoting Coleman, 667 F.3d at 847 (internal quotation marks omitted)); see also Filar v. Bd. of Educ. of City of Chi., 526 F.3d 1054, 1061 (7th Cir. 2008) (“[T]he comparator must . . . be similar enough ‘to eliminate confounding variables, such as differing roles, performance histories, or decision-making personnel, [so as to] isolate the critical independent variable: complaints about discrimination.” (alteration in original) (quoting Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007))).

         While all of plaintiff's performance evaluations -- except for the last one -- concluded that his performance was “satisfactory, ” they contained a fair number of critical comments. Balogun's 2008 performance evaluation noted that he: (1) “could use some refresher training”; (2) “needs to improve his ability to focus on the details of the tasks he is performing”; (3) sometimes “waits too long before consulting senior technicians”; (4) “will perform significant tasks without informing/consulting with senior technicians”; and (5) sometimes “forgets to enter calls in[to Applix].” (2008 Perform. Eval. (dkt. #25-1) 7.) Three of these comments reappeared in his 2010 evaluation, in addition to criticism that: “customers indicate that sometimes his answers are incomplete”; and “Tony has had trouble accepting a team leader.” (2010 Perform. Eval. (dkt. #25-1) 9-10.) His 2012 evaluation noted that: (1) “[h]is time from logged-to-close is one of the lowest in the group”; and (2) “Tony participates minimally in team meetings. He could participate more effectively, e.g. provide more feedback when requested during group discussions.”) (2012 Perform. Eval. (dkt. #25-1) 12-13.)

         By comparison, Bradley's and Mutchler's evaluations are markedly more positive. Bradley's 2007 performance evaluation contained one negative comment, but even that was couched in terms of subsequent improvement: “Although Wayne's communication style can be overly abrupt and pointed he has improved his approach.” (Bradley 2007 Perform. Eval. (dkt. #75-1) 1.) Bradley's 2008 performance evaluation included no critical comments. (Bradley 2008 Perform. Eval. (dkt. #75-4) 1-2.) Bradley's 2010 review was also overwhelmingly positive with him receiving “[e]xceeded [e]xpectations” in seven different categories, although there was one negative comment and one area requiring improvement. (Bradley 2010 Perform. Eval. (dkt. #75-8) 1-2 (“Wayne tends to bring a negative attitude into the work environment.”).) Bradley's 2012 evaluation was even more glowing, identifying six areas in which he was greatly exceeding expectations and four in which he was exceeding expectations, while containing only one negative comment. (Bradley 2012 Perform. Eval. (dkt. #75-11) 1-2 (“He needs to be more proactive in learning and mastering [OS patches via Altiris].”).) Finally, his 2014 performance evaluation again identified multiple areas in which he exceeded or greatly exceeded expectations, while identifying no areas requiring improvement. (Bradley 2014 Perform. Eval. (dkt. #75-12) 1-3.)[1]

         While Mutchler's 2007 performance evaluation noted three areas of concern (improving initiative and productivity, pace of project completion, and consistency in professional demeanor), there had been significant recent improvement for all of them. (Mutchler 2007 Perform. Eval. (dkt. #75-2) 1.) Her 2008 performance evaluation had no critical comments. (Mutchler 2008 Perform. Eval. (dkt. #75-3) 1-2.) Her 2009 performance evaluation, on the other hand, included two areas of evaluation that required improvement, as well as two negative explanatory comments. (Mutchler 2009 Perform. Eval. (dkt. #75-5) 1 (“Katie had difficulty meeting the reporting needs of AIMS' customers. Katie has been unable to complete her last assigned report in a timely fashion”; and “Katie occasionally needs to be reminded of tasks that have been assigned to her. Several have taken longer than necessary to complete.”).)[2] Accordingly, Mutchler and Bradley are not appropriate comparators.

         As far as cases allowing such underwhelming evidence of so-called comparators to go forward to trial despite a lack of any evidence of racial animus, plaintiff principally cites Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840 (7th Cir. 2007), which does not help him. Certainly, Pantoja alleged claims of race and national origin discrimination, harassment, and retaliation based on disciplinary actions, failure to promote, and discharge under Title VII and 42 U.S.C. § 1981. However, the Seventh Circuit concluded that Pantoja's “discrimination and harassment claims cannot go forward, ” 495 F.3d at 843. As here, the Seventh Circuit found that the plaintiff offered no “evidence that would support the proposition that [defendant's] expectations were tailored to the race or national origin of the employee, ” as he had failed to demonstrate that his identified comparator had the same performance issues he had. Id. at 847. In the termination context, the Seventh Circuit also explained that even after establishing that the plaintiff was “meeting his employer's legitimate expectations, ” he “had to show, as the fourth element of his prima facie case, ‘that his employer sought someone to perform the same work after he left.'” Id. at 846 (quoting Matthews v. Allis-Chalmers, 769 F.2d 1215, 1217 (7th Cir. 1985)). This, too, does not help the plaintiff here, since there is no evidence to suggest someone was hired to replace him; on the contrary, Cherek considered his position to be the most easily eliminated.

         The other case cited by plaintiff, Byers v. Ill. State Police, No. 99 C 8105, 2000 U.S. Dist. LEXIS 17159 (N.D. Ill. Nov. 22, 2000), is also unhelpful to Balogun. In Byers, the court permitted plaintiffs to proceed on their equal protection discrimination claims because defendants failed to even address that plaintiffs were claiming discrimination based on their sex. Id. at *4-*5. Additionally, it should go without saying that the procedural posture of that case was itself distinguishing given that the standards for granting a motion to dismiss or one for summary judgment are vastly different: the former is a question of pleading, the latter is a question of evidence. In Byers, plaintiffs alleged as the basis for their Title VII claim that they were qualified for the position of master sergeant but were passed over for promotion in favor of less qualified men. Id. at *6-*7. Here, the plaintiff has failed to come forward with evidence from which a reasonable jury could find that he was equally qualified as his comparators, much less more qualified.

         In the end, the court is left with Balogun's wholly unsupported supposition that he was discriminated against because of his membership in two protected classes. His supposition alone without any underlying direct or indirect evidence is insufficient to go forward in the face of a motion for summary judgment.[3] As the Seventh Circuit has explained, discrimination is established where the evidence viewed as a whole would permit a reasonable fact finder to conclude that the plaintiff's protected class caused the adverse employment action. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016); see also Engquist v. Ore. Dept. of Agr., 553 U.S. 591, 594 (2008) (“We hold that such a ‘class-of-one' theory of equal protection has no place in the public employment context.”).

         Accordingly, defendants' motion for summary judgment on plaintiff's discrimination claim is granted. At the final pretrial conference, the court will entertain argument about what conduct is admissible to provide context for plaintiff's retaliation claim.

         II. Defendants' Motion ...

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