Lau v. Abbott Laboratories , 2019 IL App (2d) 180456 ( 2019 )

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Appellate Court Date: 2019.07.17
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Lau v. Abbott Laboratories, 2019 IL App (2d) 180456
Appellate Court ANNA J. LAU, Plaintiff-Appellant, v. ABBOTT LABORATORIES,
Caption Defendant-Appellee.
District & No. Second District
Docket No. 2-18-0456
Rule 23 order filed March 15, 2019
Motion to
publish allowed April 2, 2019
Opinion filed April 2, 2019
Decision Under Appeal from the Circuit Court of Lake County, No. 17-L-80; the Hon.
Review Mitchell L. Hoffman, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Cause remanded.
Counsel on William M. Walsh, of Law Office of William M. Walsh, LLC, of
Appeal Chicago, for appellant.
Jon E. Klinghoffer, Meredith S. Kirshenbaum, and Michael K.
Chropowicz, of Goldberg Kohn Ltd., of Chicago, for appellee.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and
opinion.
OPINION
¶1 The plaintiff, Anna J. Lau, sued her former employer, the defendant, Abbott Laboratories,
alleging that it discriminated against her on the basis of her sex, race, national origin, or age
and that it also retaliated against her for complaining about that discrimination. The trial court
granted summary judgment in Abbott’s favor, and she appealed. We affirm in part, reverse in
part, and remand.
¶2 I. BACKGROUND
¶3 The following facts are drawn from the depositions and statements of fact submitted by the
parties in connection with the motion for summary judgment. Except where noted, they are
undisputed, at least for our present purpose—considering whether summary judgment is
warranted.
¶4 Lau was hired by Abbott in 1999 as a senior financial analyst, a Grade 16 position. That
same year, she completed an MBA. Over the years, she worked in several different areas of
Abbott, including the hospital pharmacy, point of sales, and acute care sales and forecasting
divisions. At some point before 2011, Lau became a supervisor for financial analysis, a Grade
17 position. After that, she held the position of associate manager, quotas and incentives,
another Grade 17 position. When that job was outsourced, she was given a separation package,
but Abbott rehired her a few weeks later. Although she was rehired as a senior financial
analyst, she kept her Grade 17 level, the level she retained for the remainder of her time at
Abbott. Lau was not a certified public accountant (CPA).
¶5 In 2011, Lau was again given the title of supervisor for financial analysis, reporting to
William Covington in the Global Engineering Services (GES) operations group. At the time,
GES supported seven business units: Buildings and Grounds (B&G), Utilities, Housekeeping,
Maintenance, Maximo/Metrology (M/M), Quality Assurance (QA), and Engineering
Operations Administration (EO).
¶6 In her position as supervisor for financial analysis in the GES group, Lau’s duties included
supervising employees and financial analysis of the B&G unit. Lau worked about 50-55 hours
per week. B&G had over 70 cost centers, far more than any other unit, and the month-end
financial package was almost 30 pages long. Lau also supervised Amy Harter, a Grade 14
financial analyst. Harter handled the Housekeeping unit, which took her 25-30 hours per week,
and the QA unit, which took another 5 hours per week. From time to time, Lau also supervised
interns.
¶7 Kevin Mix, another Grade 17 supervisor, was responsible for the Utilities unit, a full-time
job. He also supervised Lucas Bowden, a Grade 14 financial analyst and CPA who handled the
Maintenance and M/M units. Mix reported to Valerie Christophersen, a Grade 19 manager for
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financial planning and analysis. Christophersen was a CPA who started at Abbott in 2001 and
who began working in the GES unit in 2011.
¶8 This organizational structure existed through the end of 2012. Lau performed her work and
received annual performance reviews from Covington, indicating that she had “achieved
expectations.” Abbott employee performance reviews had four descriptive ratings:
expectations “not achieved,” “partially achieved expectations,” “achieved expectations,” and
“exceeded expectations.”
¶9 In January 2013, Covington accepted a different position and Christophersen took over his
duties, becoming Lau’s supervisor. Lau’s job duties did not change from 2012 to 2013. Lau
asserts that her job performance also did not change from 2012 to 2013; Abbott disputes this.
¶ 10 In May 2013, Harter took a three-month leave of absence related to the birth of her child. In
August 2013, about a week after Harter returned, Christophersen told Lau that Lau would no
longer supervise Harter, who would instead report directly to Christophersen. (A few months
after that, Harter left GES to transfer to Abbvie, a spin-off of Abbott.) Christophersen told Lau
that her supervision over Harter had been removed so that Lau could focus on her
responsibilities as the financial analyst for B&G. Thereafter, Lau did not supervise anyone and
instead performed only the duties of a financial analyst. Eduardo Brito, who eventually became
Christophersen’s supervisor, testified that a Grade 17 supervisor was expected to supervise and
manage someone.
¶ 11 At some point between mid-July and late September (the exact date is disputed),
Christophersen verbally gave Lau a “mid-year” review. Lau asserts that this is the first time
Christophersen told Lau that she found Lau’s performance deficient in certain areas.
Christophersen’s notes from the meeting stated that the expectations for the first six months
were “not completely met” and that certain “deliverables” (assignments) were not completed,
specifically items for which Harter was responsible that Harter did not complete before taking
leave. Thereafter, Christophersen and Lau began meeting weekly.
¶ 12 In February 2014, Christophersen completed annual performance reviews of Lau, Harter,
and Bowden. Although Lau had supervised Harter for most of 2013, Christophersen took over
the review process and changed the “achieved expectations” rating that Lau would have
assigned Harter to “partially achieved expectations” (PA). Christophersen also gave Lau a
rating of PA. This was the first time in 14 years of employment with Abbott that Lau had
received a rating of PA. Both Lau and Harter believed that their low ratings were inaccurate
and unfair, and both filed appeals of their ratings with the Abbott Employee Relations (ER)
office.
¶ 13 Christophersen gave Bowden an overall rating for 2013 of “exceeds expectations.” Lau
and Harter testified that Christophersen was “overly friendly” with Bowden, joking and flirting
with him in the office and attending after-work gatherings with him. Harter also testified that
Christophersen allowed Bowden to avoid doing work he did not want to do.
¶ 14 In the 2013 annual review, Christophersen gave Lau a rating of 2.0 (adequate) in all
sections, rating Lau at 3.0 (“effective”) in only one subsection. Christophersen stated that
“there were some key deliverables not fully understood, causing deadlines to be missed and
requiring others in the group to take over and complete tasks.” This comment apparently
referred to deliverables for which Harter was responsible; Christophersen wrote that Lau did
not understand and manage the impact of Harter’s leave of absence or update Christophersen
about problems caused by Harter’s absence. In her written appeal, Lau stated that Harter had
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started working on the deliverables but had unexpectedly gone into labor two weeks early
while at work. Lau noted that she had taken on many of Harter’s duties and had trained a
summer intern to fill in for Harter at a level that was acceptable to the business unit involved
(which Christophersen acknowledged). Christophersen also stated that Lau “was not able to
meet the majority of the regular deliverables for her team.” Lau disputed this, asserting that she
had met all of the deadlines for most of her deliverables. Christophersen wrote that Lau put in
“a significant amount of time, just to meet deadlines, leaving little or no time for analysis.”
Christophersen also rated Lau poorly on her supervisory skills. Christophersen testified that, as
Lau was a Grade 17 supervisor, even after her supervisory duties had been removed,
Christophersen expected her to provide “some kind of leadership mentoring,” such as sharing
knowledge with the group, pitching in to help out if someone was struggling, and helping
people who came to her for guidance. Christophersen admitted that she did not in fact know
whether people came to Lau for guidance or mentoring and that she was not aware of any
occasion when Lau failed to share knowledge with the team or to pitch in to assist others. In
terms of specific goals that had been identified, Christophersen agreed that Lau achieved 100%
of them.
¶ 15 In Lau’s appeal, she provided additional facts and explanations, challenging
Christophersen’s view of her performance. For instance, Lau noted that, although
Christophersen criticized her abilities as a supervisor, she was given an intern to supervise
during the summer of 2013, and her supervision and training of him was praised by
Christophersen. Lau asserted that one deliverable that she missed was only assigned by
Christophersen on a Friday when it was due the following Monday, and it involved much
greater work for business units with many cost centers, such as B&G. Regarding the continuity
problems caused by Harter’s leave of absence, Lau noted that they were aggravated at the
following month-end close when Christophersen pulled the wrong documentation, an error
that Lau was not aware of until after the mid-year review. Lau had also undergone a “360”
review (a process in which all of the persons with whom she worked rated her performance);
Christophersen’s rating of her was the most negative of any she received in that process.
¶ 16 As part of the appeal process, Lau was interviewed on February 14, 2014, by Natorshi
Wilson, an ER employee. Lau told Wilson that Christophersen was “just biased” and nitpicked
her work. Wilson did not ask Lau what she meant by “biased” and did not investigate further.
On April 10, 2014, Julie Jansen (Christophersen’s supervisor at the time) interviewed Lau
about her appeal. Lau told Jansen that Christophersen treated her and Bowden “differently.”
Lau did not tell anyone at Abbott that she believed that Christophersen was discriminating
against her specifically because of her sex, race, national origin, or age.
¶ 17 In April 2014, Lau asked Christophersen for permission to work from home one day
because her child was sick. Christophersen denied Lau such permission and told Lau she
would have to use a vacation day instead. In contrast, Christophersen granted Bowden
permission to work from home more than once. Christophersen testified that she denied Lau
permission because it was her policy not to grant such permission when a child was sick.
However, she granted Harter permission to work from home when her child was sick.
¶ 18 Jansen interviewed Christophersen regarding Lau’s appeal on April 21, 2014. That same
day, Christophersen gave Lau a “coaching memo” regarding Lau’s alleged performance
deficiencies, which Christophersen testified had not improved since the 2013 review in
February 2014. The coaching memo included a performance improvement plan with goals and
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deadlines. Lau called ER about the memo and spoke with Sharon Larson, a senior ER
specialist. Lau complained that Christophersen was constantly comparing her to Bowden and
that Christophersen unfairly gave Bowden different deadlines for projects. Christophersen told
Larson that she did provide Bowden with more flexibility with his due dates, but this was
because he was handling more business units.
¶ 19 ER found that Christophersen’s 2013 review of Harter did not appropriately evaluate
Harter’s performance, and her rating was changed to “achieved expectations.” However,
Jansen decided to uphold the PA rating for Lau. Jansen’s write-up of her decision stated that
she had interviewed Lau, Christophersen, and Harter, and she had reviewed Lau’s appeal
documents, Christophersen’s “performance discussion documents,” and an email from a
colleague of Lau’s about Lau’s noncompletion of a particular deliverable. Jansen wrote that
she observed a “significant gap in communication” between Christophersen and Lau, an
observation that Lau agreed with. Jansen also reviewed examples of work provided by Lau and
found that they lacked analysis and commentary, although Lau explained that she provided
analysis verbally. Overall, Jansen’s report reflected that she expected more of Lau based on her
grade level. For instance, Jansen wrote that she was concerned that Lau, who had been meeting
weekly with Christophersen since September, seemed to require much more supervision and
guidance than Jansen would expect from a Grade 17 employee. Lau expressed concern that she
was being evaluated against unfairly high expectations designed for employees who either
were at Grade 18 and above or were “people leaders.” (Christophersen had shown her a
document about such expectations.) Jansen wrote that those expectations were appropriately
applied to Lau because she was viewed as a “people leader” due to her supervision of Harter
during the majority of 2013 and because “grade 17’s in Finance are usually viewed as People
Leaders even if they do not have any direct reports.” The expectation was that Grade 17
employees (unlike Grade 16 senior financial analysts) were “providing leadership on projects,
initiatives and/or key processes.” Jansen acknowledged Lau’s complaint that Christophersen
treated Lau and Bowden differently, but Jansen viewed this as appropriate because of their
different grade levels.
¶ 20 In early 2014, Mix moved out of GES and Bowden took over the financial analysis for
Utilities in addition to handling Maintenance and M/M. Bowden continued handling these
three units until May 2014, when Gary Docekal, a Grade 14 financial analyst, began working
for GES. Docekal then took over the financial analysis for Maintenance and M/M. Docekal,
like Lau and Bowden, reported directly to Christophersen.
¶ 21 On June 25, 2014, Christophersen gave Lau her mid-year review and told her that her
performance was still not meeting expectations and needed improvement. Christophersen
stated that Lau failed to submit work in a timely fashion and missed deadlines, and that she
needed to improve her leadership skills as a supervisor. Christophersen also told Lau that her
goals “appear[ed] to be on target.”
¶ 22 Less than one month later, in July 2014, Christophersen told Lau that henceforth she would
be handling three additional business units: Housekeeping, QA, and EO. According to Harter,
Housekeeping required 25 to 30 hours of work per week and QA required an additional 5 hours
per week. Lau was also assigned two additional consolidated financial packages to prepare
each month; she testified that each of these took 4 to 5 hours to complete. At the time, Lau was
already working 50 to 55 hours per week and was, in Christophersen’s view, “struggling” to
provide the financial analysis for B&G, and was not meeting expectations. Lau told
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Christophersen that she was concerned that she could not handle all of the increased workload.
Christophersen did not respond to these concerns.
¶ 23 Christophersen and Brito (who took over for Jansen as Christophersen’s supervisor in
mid-2014) testified that GES could not hire anyone new, but instead had to handle all of its
work with its current staff: Lau, Bowden, and Docekal. However, Christophersen did not
assign any additional business units to either of the males working in GES: Bowden, who was
handling only Utilities, or Docekal. In Brito’s opinion, Bowden had the potential to handle
additional units, as shown by his high performance ratings in 2013 and 2014 and his ability to
handle three business units between when Mix left and when Docekal arrived. At some point
during 2014, Bowden was promoted to Grade 16, senior financial analyst. When asked why
she did not assign even the small QA unit to either Bowden or Docekal, Christophersen said
she did not know.
¶ 24 Lau went to ER about the additional workload. She spoke with Larson, saying that she
believed that Christophersen was treating Bowden more favorably than her in terms of
workload. Larson spoke with Christophersen, who defended her decision to give Lau more
work by saying that she did not believe that Lau was working to her “full capacity.” Larson did
not take any further action, other than relaying this response to Lau. Larson later testified that
she did not have any personal knowledge about Lau’s job performance and that her
understanding of Lau’s work capacity was based solely on what Christophersen told her.
¶ 25 On August 20, 2014, Christophersen sent Lau a memo criticizing her for failing to
complete a request for capital expenditure (RCE) that Lau received on August 13. Lau had
started the RCE but had not completed it as of August 19 due to other work deadlines and a
brief (1.5 days) vacation. Christophersen believed that Lau should have completed it or at least
told Christophersen that it was not yet finished. However, there was no specific deadline for
completing RCEs.
¶ 26 Lau attempted to perform the additional work assigned to her but, as she had feared, she
was unable to do so by herself. She asked Christophersen for help, but Christophersen did not
give her any help. (Abbott does not dispute either of these statements.) Harter and Lau
observed Christophersen help Bowden with his work. Christophersen did not allow Lau to
attend one of her scheduled training classes, out of concern that Lau would not be able to
complete her deliverables. She allowed Bowden to attend all of his scheduled training classes.
¶ 27 On September 15, 2014, Christophersen gave Lau a second “coaching memo.” Four days
later, Lau met with Brito. Lau told Brito that she believed that Christophersen was trying to get
her fired. Brito told Lau that she was “meeting all of her deliverables” but was not meeting her
“competencies” as a Grade 17 supervisor. As for certain monthly payroll models that
Christophersen was requiring Lau to do, Brito stated that he did not see why the finance staff
was doing those, but he would leave it up to Christophersen. Brito followed up with
Christophersen after the meeting, discussing how Christophersen could “ensure that [her] tone
and treatment was as fair and neutral as possible.”
¶ 28 On October 31, 2014, Christophersen removed Lau’s responsibility for two of the business
units assigned to her in July 2014 and told her it was a “performance issue.”
¶ 29 On November 4, 2014, Christophersen sent a draft memo to Larson, listing justifications
for firing Lau. In the draft, Christophersen asserted that Lau’s attitude was unprofessional; Lau
had complained “about the workload being unfair to her peers, and to her manager.” Larson
deleted that language from the final version of the memo.
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¶ 30 On December 8, 2014, Christophersen told Lau that she was being terminated. The
termination decision was made by Brito and Larson, based on Christophersen’s
recommendation. The documentation of the termination stated that Lau was terminated
because she continued to miss deliverables, her work contained inaccurate data, and her
commentary required reworking. Further, she did not “fully demonstrate active leadership”
and did not follow up with Christophersen as expected.
¶ 31 After Lau was terminated, Bowden took over her duties with respect to the B&G unit and
retained them until his departure from GES in 2016. According to Brito, this fact showed that
Bowden had had the capacity to absorb additional work in 2014.
¶ 32 Lau found a new job about five months after she was terminated from Abbott. She
switched jobs in June 2016, joining the finance department of a business at a higher salary than
she earned at Abbott.
¶ 33 Lau filed a charge of discrimination with the Illinois Department of Human Rights
(Department) on May 18, 2015. The charge alleged that Abbott discriminated against her on
the basis of her sex, race, national origin, age, or disability, and further alleged unlawful
retaliation. (Lau later abandoned the claim of disability-related discrimination.) In August
2016, the Department dismissed the charge. Lau timely filed a complaint of discrimination and
retaliation in the trial court. Lau sought damages not only for lost wages and benefits but also
for emotional distress caused by the alleged discrimination and retaliation.
¶ 34 Abbott moved for summary judgment, and the trial court granted that motion. Lau now
appeals from that decision, contending that she presented enough evidence that summary
judgment should have been denied.
¶ 35 II. ANALYSIS
¶ 36 A. Applicable Legal Standards
¶ 37 A motion for summary judgment is properly granted only where the pleadings,
depositions, admissions, and affidavits establish that no genuine issue of material fact exists
and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West
2016); Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). “In determining whether
a genuine issue as to any material fact exists, a court must construe the pleadings, depositions,
admissions, and affidavits strictly against the movant and liberally in favor of the opponent.”
Id. Material facts are facts that might affect the outcome of the case under the applicable
substantive law. GreenPoint Mortgage Funding, Inc. v. Hirt, 2018 IL App (1st) 170921, ¶ 17
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Summary judgment should
not be entered where material facts are disputed or where the material facts are undisputed but
reasonable persons might draw divergent inferences from those facts. Adams, 211 Ill. 2d at 43.
In reviewing a trial court’s grant of summary judgment, we do not assess the credibility of the
testimony presented but, rather, determine only whether the evidence presented was sufficient
to create an issue of material fact. See Jackson v. Graham, 323 Ill. App. 3d 766, 779 (2001).
We review the grant of summary judgment de novo. Adams, 211 Ill. 2d at 43.
¶ 38 Lau’s complaint alleged discrimination and retaliation that violated various provisions of
the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2016)). Although this is
an Illinois statute, in assessing such claims, we are guided not only by Illinois case law but also
by (1) federal case law relating to federal anti-discrimination statutes, including Title VII of the
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Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(1) (2012)), which prohibits discrimination
on the basis of sex, race, and national origin, among other things; (2) the Age Discrimination in
Employment Act of 1976 (ADEA) (29 U.S.C. § 621 et seq. (2012)); (3) and the anti-retaliation
provisions of those statutes. See Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172,
178 (1989) (claims under the Act are to be evaluated in accordance with federal decisions
interpreting federal anti-discrimination laws).
¶ 39 To withstand a motion for summary judgment, a plaintiff must present “evidence [that]
would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex,
religion, or other proscribed factor caused[1] the discharge or other adverse employment
action.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). In McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the United States Supreme Court outlined a
burden-shifting approach for proving employment discrimination cases. Under that approach,
a plaintiff must produce enough evidence to establish a prima facie case that she was a member
of a protected class and that she was treated less favorably than someone who was not in the
protected class “under circumstances which give rise to an inference of unlawful
discrimination.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)
(explaining the McDonnell Douglas approach). If the plaintiff can do this, the burden of
production shifts to the employer to articulate a legitimate, nondiscriminatory reason for taking
the action it did. Id. Finally, if the employer is able to articulate such a reason, the plaintiff
“must then have the opportunity to prove” that the reason offered by the employer was not its
true reason, but rather was a pretext for discrimination. Id. The Seventh Circuit has cautioned
that courts considering whether a plaintiff has met her burden must not conduct overly narrow
inquiries that distinguish direct from indirect evidence of discriminatory intent: “[e]vidence
must be considered as a whole, rather than asking whether any particular [type or] piece of
evidence proves the case by itself.” Ortiz, 834 F.3d at 765.
¶ 40 A prima facie case under the McDonnell Douglas approach requires evidence that (1) the
plaintiff is a member of a protected class, (2) she was meeting her employer’s legitimate
employment expectations, (3) she suffered an adverse employment action, and (4) she was
treated less favorably than a similarly situated person who was not a member of the protected
class. Barbera v. Pearson Education, Inc., 906 F.3d 621, 629 (7th Cir. 2018). However, these
components are “not inflexible” and may vary depending on the facts of the case: “ ‘[T]he
specification above of the prima facie proof required from respondent is not necessarily
applicable in every respect in differing factual situations.’ ” Burdine, 450 U.S. at 253 n.6
(quoting McDonnell Douglas, 411 U.S. at 802 n.13). Overall, “[t]he burden of establishing a
prima facie case of disparate treatment is not onerous.” Id. at 253.
¶ 41 Although it occupies a prominent place in the law of employment discrimination, the
McDonnell Douglas burden-shifting approach is not a requirement in employment
1
The nature of the causal link that must be shown differs somewhat depending on the type of claim.
For claims of discrimination based on the protected classes listed in Title VII, it is sufficient to show
that membership in that class was one of the motivating factors behind the adverse employment action.
See 42 U.S.C. § 2000e-2(m) (2012). For retaliation claims and claims under the ADEA, however, a
plaintiff must meet the higher “but-for” causation standard—that is, she must show that the adverse
action would not have been taken if she were not a member of the protected class. University of Texas
Southwestern Medical Center v. Nassar, 570 U.S. 338, 334-47 (2013) (retaliation claims under Title
VII); Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177-78 (2009) (ADEA claims).
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discrimination claims. “[T]he original purpose of McDonnell Douglas *** was to outline a
series of steps that, if satisfied, would support a plaintiff’s right to reach the trier of fact.”
Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013). The McDonnell Douglas approach is
simply “a means of organizing, presenting, and assessing circumstantial evidence in frequently
recurring factual patterns found in discrimination cases”; it is “not the only way to assess
circumstantial evidence of discrimination.” David v. Board of Trustees of Community College
District No. 508, 846 F.3d 216, 224 (7th Cir. 2017). “In adjudicating a summary judgment
motion, the question remains: has the non-moving party produced sufficient evidence to
support a jury verdict of intentional discrimination?” Id.
¶ 42 B. Discrimination Claims
¶ 43 In her complaint, Lau alleged that Christophersen treated her less favorably than other
employees by, among other things, assigning her additional work, holding her to a higher
performance standard, and evaluating her more harshly, leading to her eventual termination.
Lau alleged that Christophersen was motivated by animus on the basis of Lau’s sex, race,
national origin, or age. (Lau also alleged that she complained of Christophersen’s
discriminatory actions and that she was retaliated against for those complaints through actions,
including her termination. We address the retaliation claim separately.)
¶ 44 Abbott moved for summary judgment on Lau’s discrimination claims on the grounds that
Lau did not show the existence of a similarly situated employee who was treated more
favorably than her, and even if she did, she did not produce any evidence that would cast doubt
on the nondiscriminatory reasons for her termination that Abbott offered (the alleged
deficiencies in her job performance). Both of these arguments are premised on the application
of the McDonnell Douglas approach. Although Lau responds to these arguments, she also
asserts that she did not invoke McDonnell Douglas as the sole applicable legal framework and
that her claims must be evaluated as a whole if we find them deficient under McDonnell
Douglas. We begin with Abbott’s arguments based on McDonnell Douglas.
¶ 45 1. McDonnell Douglas—Similarly Situated
¶ 46 The fourth prong of the McDonnell Douglas framework requires a plaintiff to produce
evidence that she was treated less favorably than a similarly situated employee who was not a
member of the protected class. Barbera, 906 F.3d at 629. “The similarly-situated analysis calls
for a ‘flexible, common-sense’ examination of all relevant factors.” Coleman v. Donahoe, 667
F.3d 835, 846 (7th Cir. 2012) (quoting Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007)).
“There must be ‘enough common factors . . . to allow for a meaningful comparison in
order to divine whether intentional discrimination was at play.’ Barricks v. Eli Lilly and
Co., 481 F.3d 556, 560 (7th Cir. 2007). *** In the usual case a plaintiff must at least
show that the comparators (1) ‘dealt with the same supervisor,’ (2) ‘were subject to the
same standards,’ and (3) ‘engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or the employer’s
treatment of them.’ Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008),
quoting Snipes v. Illinois Department of Corrections, 291 F.3d 460, 463 (7th Cir.
2002). This is not a ‘magic formula,’ however, and the similarly-situated inquiry
should not devolve into a mechanical, ‘one-to-one mapping between employees.’
Humphries [v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007)].” Id. at 847.
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“Whether a comparator is similarly situated is ‘usually a question for the fact-finder,’ and
summary judgment is appropriate only when ‘no reasonable fact-finder could find that
plaintiffs have met their burden on the issue.’ ” Id. at 846-47 (quoting Srail v. Village of Lisle,
588 F.3d 940, 945 (7th Cir. 2009)).
¶ 47 Lau identifies Bowden and Docekal (both of whom were white, male, and younger) as two
Abbott employees who were similarly situated to her. Both worked as financial analysts in the
GES division, and both reported directly to Christophersen beginning in 2014. Lau claims that
Christophersen treated her worse than Bowden and Docekal, giving her (but not them)
significantly more work to do in July 2014, despite Christophersen’s view that Lau was
struggling with her previous duties. Lau also claims that Christophersen held her to higher
expectations and unfairly gave her lower reviews, all of which led to her termination.
¶ 48 Abbott argues that Bowden and Docekal were not comparable to Lau, as they held lower,
nonsupervisory positions, and the expectations for someone with Lau’s experience (14 years)
and grade level (17) were higher than for Bowden (first Grade 14, then 16) or Docekal (new to
GES and Grade 14 throughout).2 (Abbott also argues that Lau had performance deficiencies
that Bowden and Docekal did not; we address this contention in our discussion of pretext,
below.) Lau responds that, once Christophersen stripped her of her supervisory duties over
Harter in August 2013, Lau was serving only as a financial analyst. She asserts that the
differing grade levels were irrelevant after that point because the financial analysis that she,
Bowden, and Docekal were expected to perform for their assigned business units was
essentially the same. She also notes that Brito testified that Bowden could have handled the
additional work that Christophersen chose to assign to Lau, suggesting that Bowden and Lau
were in fact comparable.
¶ 49 As we have noted, the issue of whether particular employees are similarly situated is
generally a question for the fact finder to resolve. Here, the similarities between Lau and her
comparators—that they were doing the same work, in the same unit, under the same
supervisor—are relevant to the issue of how Christophersen viewed and treated subordinates.
Further, in 2013 Christophersen also rated Harter, another female subordinate who had the
same grade level (14) as Bowden, as PA, a rating that was later overturned as unjustified. This
could suggest that it was not grade level that caused Christophersen’s low evaluations of Lau.
¶ 50 Abbott argues that, as a matter of law, employees of different grade levels cannot be
similarly situated, but the cases it cites involve proposed comparators who had other
differences as well from the plaintiffs in those cases. See Patterson v. Indiana Newspapers,
Inc., 589 F.3d 357, 366 (7th Cir. 2009) (employer’s statement of facts deemed undisputed
through plaintiff’s failure to contest it; and although proposed comparators held different
positions, “most important[ ]” factor was lack of evidence that comparators and plaintiff
committed similar violations of workplace rules); Hoffman-Dombrowski v. Arlington
International Racecourse, Inc., 254 F.3d 644, 651 (7th Cir. 2001) (in failure-to-promote claim,
2
Abbott also argues that Lau forfeited her ability to use Docekal as a comparator, because, in her
deposition, she testified that Bowden was the only similarly situated employee. This is not quite right:
Lau testified that her references to similarly situated employees had “mainly” to do with Bowden.
Moreover, Lau cited Docekal as a comparator in her response to the motion for summary judgment, and
thus the issue of whether he was a proper comparator was fully briefed in the trial court. Accordingly,
we do not view Lau as having forfeited the use of Docekal as a comparator.
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proposed comparator initially held a higher position than plaintiff, so desired position was a
lateral move for him but would have been a promotion for plaintiff).
¶ 51 In opposition, Lau cites cases in which courts specifically held that a difference in seniority
or grade level was not dispositive of whether someone was an appropriate comparator. See
Coleman, 667 F.3d at 848 (collecting cases). Indeed, we note that, in the seminal case of
Burdine, the plaintiff was the former supervisor of the comparator. See Burdine, 450 U.S. at
250-51. We therefore reject Abbott’s argument that Lau cannot prevail on this issue as a matter
of law. Moreover, there is sufficient conflicting evidence to raise a factual dispute over
whether Lau and Bowden (and perhaps Docekal) were similarly situated but treated
differently. Accordingly, the trial court erred in finding that Lau had not made out a
prima facie case of discrimination.
¶ 52 2. McDonnell Douglas—Pretext
¶ 53 Under the McDonnell Douglas burden-shifting approach, when a plaintiff has made out a
prima facie case, a presumption arises that, if not rebutted, could lead to a judgment in her
favor on her discrimination claims. Burdine, 450 U.S. at 254. An employer may rebut this
presumption by articulating a legitimate, nondiscriminatory reason for its action. Id. at 257.
Once the employer offers such a reason, the presumption drops from the case and the plaintiff
“must have the opportunity to demonstrate that the proffered reason was not the true reason for
the employment decision.” Id. at 256. To avoid the entry of summary judgment, the plaintiff
must present evidence raising an inference that the adverse action was motivated, at least in
part, by an improper discriminatory motive. The plaintiff can do so by, among other things,
pointing to evidence suggesting that the employer’s proffered reason is pretextual and
unworthy of credence. Id. The issue of whether the employer’s stated reason is a pretext is a
question of fact. Zaderaka, 131 Ill. 2d at 180.
¶ 54 As part of its argument that Lau was not similarly situated to Bowden or Docekal, Abbott
argues that Lau had a documented record of poor performance (at least during 2013 and 2014)
that Bowden and Docekal did not. Those same alleged performance deficiencies are the
nondiscriminatory reason that Abbott proffers as its justification for firing Lau. We therefore
consider this assertion in the context of whether Lau has presented enough evidence to require
that a jury decide whether this reason was genuine or a pretext masking discriminatory
decision-making. See Khowaja v. Sessions, 893 F.3d 1010, 1015 (7th Cir. 2018) (the similarly
situated and pretext inquiries often overlap); Gordon v. United Airlines, Inc., 246 F.3d 878,
886 (7th Cir. 2001) (issue of whether an employee was performing to the level reasonably
expected by the employer overlapped with the issue of pretext; court addressed that issue in the
pretext analysis).
¶ 55 “Pretext involves more than just faulty reasoning or mistaken judgment on the part of the
employer.” Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th Cir. 2008). Rather, a pretext
is “a phony reason for some action.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.
1995). A plaintiff can raise a sufficient inference of pretext to survive summary judgment by
showing that the employer’s stated reason is implausible or contradictory. Coleman, 667 F.3d
at 852.
¶ 56 Viewing the evidence in the light most favorable to Lau, as we must, we find that she has
presented enough evidence from which a rational fact finder could determine that her alleged
performance deficiencies were a pretext for discriminatory animus on the part of
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Christophersen. It is undisputed that Lau had received favorable performance reviews for the
12 years before Christophersen became her supervisor and that her job duties did not change
between 2012 (when she received a rating of “achieved expectations”) and 2013 (when she
first received a PA rating from Christophersen). Of course, as Abbott points out, the key
question is how Lau was performing immediately before she was terminated, and prior
evaluations, standing alone, are insufficient to prove pretext. See Peele v. Country Mutual
Insurance Co., 288 F.3d 319, 329 (7th Cir. 2002). Nevertheless, her previous work record is
one relevant factor that may be considered. Culver v. Gorman & Co., 416 F.3d 540, 549 (7th
Cir. 2005). An inference of bias also arises from the facts that Christophersen rated both of her
male subordinates (Bowden and Docekal) favorably, while rating both of her female
subordinates (Lau and Harter) unfavorably, and that her low rating of Harter was later
overturned as unjustified. In addition, Harter echoed Lau’s testimony that Christophersen
treated Bowden more leniently with respect to deadlines and performance.
¶ 57 But perhaps the most compelling evidence that Lau’s job performance was not the true
reason for her termination comes from Christophersen’s own actions and words.
Christophersen’s PA rating of Lau in 2013 rested in part on the justification that Lau was not
acting as a “people leader.” However, Christophersen had removed Lau’s supervisory job
duties, thereby making it difficult for her to show competence in this area. Moreover,
Christophersen’s low rating of Lau in this area was contradicted by Lau’s supervision of an
intern—work that was praised by others and that Christophersen herself commended.
Christophersen also stated that, even if a “people leader” did not have any direct reports, she
expected such a person to demonstrate mentoring skills by sharing knowledge with the group,
pitching in to help out if someone was struggling, and helping people who came to her for
guidance. But Christophersen admitted that she did not know whether people in fact came to
Lau for guidance or mentoring, and she was not aware of any occasion when Lau failed to
share knowledge with the team or to pitch in to assist others.
¶ 58 Even more significantly, shortly after giving Lau a poor review and placing her under a
performance improvement plan, Christophersen increased her workload substantially,
assigning her three more business units to handle and another two monthly consolidated
financial packages to prepare. Harter testified that the additional business units represented an
additional 30 to 35 hours of work per week. Christophersen testified that she assigned Lau this
extra work because she believed that Lau should be able to handle it, both in terms of her
capacity and because of her grade level. However, Christophersen also stated that she believed
that Lau was “struggling” to adequately perform her work even without the additional duties,
and she did not know why she did not assign even the small QA unit to either Bowden or
Docekal. A reasonable juror could conclude that Christophersen was setting Lau up to fail by
assigning her extra work that Christophersen knew she could not handle. Taken together, all of
these admissions and inconsistencies raise a reasonable inference that Christophersen was
seeking out reasons to rate Lau’s performance as poor rather than honestly evaluating that
performance.
¶ 59 Abbott argues that Lau cannot show that the extra work she received was excessive
because a single employee later became responsible for all seven business units in GES. (This
occurred a few years after the events at issue here.) Lau responds that, according to Brito, this
occurred only after GES underwent restructuring that eliminated or reallocated many of its
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former responsibilities. Given the factual disputes on the relevancy of this point, we do not find
it dispositive.
¶ 60 Abbott also argues that Lau merely “disagreed with” the performance reviews and
coaching memos, but she did not produce any evidence suggesting that they were inaccurate.
This is incorrect. Lau identified numerous factual disputes regarding specific criticisms leveled
in those reviews and coaching memos, including whether she met the majority of her regular
deliverables, whether certain work had been done, whether certain analysis was communicated
to the business groups she worked with, and whether Harter could have assisted her by taking
on certain expense approvals. For all of these reasons, Abbott has not established that Lau’s
evidence of pretext is fatally deficient.
¶ 61 3. Evidence as a Whole
¶ 62 Lau argues that she need not prove her case through the McDonnell Douglas framework
and that courts may also simply place all of the evidence submitted by a plaintiff into a single
pile and evaluate it as a whole. See Ortiz, 834 F.3d at 766. The trial court misapprehended this
argument, stating that Lau’s claims must be evaluated under the McDonnell Douglas
burden-shifting approach because she had not presented any evidence to “directly show”
discriminatory intent. This statement erroneously conflated the “evidence as a whole”
approach with “direct evidence” (evidence that by itself proves a point without the need to
draw inferences, as distinct from circumstantial evidence). But all “[r]elevant evidence must
be considered” regardless of whether “it can be labeled ‘direct’ or ‘indirect.’ ” Id. at 765. Thus,
Lau was entitled to simply list all of her evidence of discriminatory intent—both direct and
circumstantial—and ask the court to consider whether it raised a sufficient inference of such
intent to demonstrate a dispute of material fact requiring the denial of the motion for summary
judgment.
¶ 63 On appeal, Lau argues that her evidence should be evaluated as a whole if we find that she
did not identify any proper comparators. As we have found the evidence she produced
sufficient to withstand summary judgment under the McDonnell Douglas approach, however,
we need not reconsider the evidence as a whole—which would yield a similar result at any rate.
¶ 64 C. Retaliation Claim
¶ 65 To succeed on a claim of retaliation, a plaintiff must show that she engaged in a statutorily
protected activity, that a materially adverse action was taken against her, and that there is a
causal link between the two. Skiba v. Illinois Central R.R. Co., 884 F.3d 708, 718 (7th Cir.
2018). Here, Lau alleged that, after she complained that Christophersen was biased against her,
she was given substantially more work to perform (more than she could handle) and then was
terminated.
¶ 66 Abbott argues that it is entitled to summary judgment on this claim because Lau’s
complaints of “bias” and “unfair treatment” were insufficient as a matter of law to qualify as
protected activity under Title VII. It is undisputed that Lau never specifically mentioned
discrimination on the basis of sex, race, national origin, or age in her complaints. It is also
undisputed that Lau complained that Christophersen was “biased” and treated her less
favorably than Bowden in a variety of ways. The question is whether these complaints were
legally sufficient to qualify as protected activity.
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¶ 67 Protected activity includes internal complaints to managers or other appropriate persons.
See Burks v. Wisconsin Department of Transportation, 464 F.3d 744, 758 (7th Cir. 2006).
However, the substance of the complaint must be sufficient to put the employer on notice that
the plaintiff reasonably believes that prohibited discrimination has occurred. Although no
particular “magic words” are required (Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.
Cir. 2006)), “ ‘the complaint must indicate [that] discrimination occurred because of sex, race,
national origin, or some other protected class.’ ” Skiba, 884 F.3d at 718 (quoting Tomanovich
v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006)). “Merely complaining in general
terms of discrimination or harassment, without indicating a connection to a protected class or
providing facts sufficient to create that inference, is insufficient.” Tomanovich, 457 F.3d at
663.
¶ 68 Under these standards, Lau’s complaint that Christophersen was “just biased” (which was
made in connection with statements that Christophersen was overly critical of Lau’s work)
would not be perceived by a reasonable person as a complaint that Christophersen was
discriminating against Lau on the basis of Lau’s sex, race, national origin, or age. Even
coupled with Lau’s complaints that Christophersen treated Bowden more favorably, this vague
complaint of “bias” was insufficient to put Abbott on notice that Lau was alleging that
Christophersen was violating the Act. Lau cannot sustain her claim that Abbott retaliated
against her for complaining about sex, race, national origin, or age discrimination when she
cannot show that she made any such complaint.
¶ 69 Lau argues that there is a factual dispute over whether Abbott in fact viewed her broad
complaint of “bias” as referring to the type of conduct barred by the Act. Specifically, Wilson
(the ER employee who interviewed Lau regarding her appeal of the 2013 PA rating) testified in
deposition that she interpreted this term “loosely” as a complaint that Christophersen did not
like Lau and was being generally unfair to her, not as an accusation of discrimination that
should be investigated. However, Larson (a more senior ER staff person) testified that she
would want to investigate further if she learned that an employee viewed her supervisor as
biased. Lau also points out that in April 2014 she told Larson that Christophersen treated
Bowden more leniently with regard to work deadlines.
¶ 70 The difficulty with Lau’s comments is that they are vague—vague enough that Wilson
testified she did not understand the complaint of bias to mean the type of conduct that would
violate the Act. Although Larson testified that she might have interpreted Lau’s assertion of
“bias” differently than Wilson, there is no evidence that Larson was previously aware of this
particular statement. And when Lau told Larson that Christophersen treated Bowden more
leniently, Larson investigated but believed Christophersen’s explanation that the difference in
treatment was based on Bowden’s workload. The legal standard for a claim of retaliation
requires that the complaint be reasonably understood as alleging discrimination on the basis of
a prohibited classification. Skiba, 884 F.3d at 718. Without a more explicit complaint that
Christophersen was motivated by a discriminatory animus against Lau, these complaints are
insufficient to show a factual dispute over whether Abbott reasonably should have been aware
that Lau was asserting that Christophersen’s conduct violated the Act.
Lau also argues that her complaint of “bias” was equivalent to a claim of discrimination, as
these two terms are often viewed as synonymous and used interchangeably. But both of these
terms can also refer generally to favoritism, or differentiation based on characteristics that
would not violate the Act. Thus, even an assertion of discrimination is insufficient if it is not
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tied to some indication that a prohibited classification is involved. See Tomanovich, 457 F.3d
at 663. Accordingly, we affirm the trial court’s grant of summary judgment on the retaliation
claim.
¶ 71 III. CONCLUSION
¶ 72 For the reasons stated, the judgment of the circuit court of Lake County, granting summary
judgment in favor of Abbott, is affirmed as to Lau’s retaliation claim and reversed as to the
remaining claims. We remand for further proceedings consistent with this decision.
¶ 73 Affirmed in part and reversed in part.
¶ 74 Cause remanded.
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