ENTRY ON DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT AGAINST PLAINTIFF MARIA BA-VEN
Along with several co-workers, Maria A. Baven brought this action against her for *866 mer employer Home Depot, U.S.A., Inc. alleging that it discriminated against her based on race and retaliated against her for reporting discrimination, both in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Baven claims that Home Depot discriminated against her by twice denying her a promotion and retaliated against her by reducing her assigned work hours after she complained of race discrimination. Home Depot denies Baven’s allegations and has filed a motion for summary judgment on all of her claims. For the reasons set forth below, Home Depot’s motion is granted as to Baven’s promotion claims but denied as to her retaliation claims.
Summary Judgment Standard
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”
Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. See Fed.R.Civ.P. 56(c);
Anderson,
Disputed and Undisputed Facts
The following account is not necessarily accurate, but reflects application of summary judgment standards to the extensive record before the court.
Plaintiff Maria Baven is African American and applied for a position as a cashier at the Home Depot on Post Road in Indianapolis in January 2002. On her initial application, Baven indicated that she was seeking a part-time position and that she was not available to work evenings, but that she was available to work on weekends. See Baven Dep. 30, Ex. 1. She submitted an additional application in February 2002 for a position as a part-time cashier. On the second application, Baven stated that she was available “anytime” but did not indicate more specifically that she was willing to work evenings. Baven Aff. ¶ 3, Att. 1. After interviews with store manager Jamie Meadows and human resource manager Jeffrey Russell, Baven was hired as a part-time cashier. She began her employment at Home Depot on April 2, 2002. Baven Dep. at 30, 35-40; Baven Aff. ¶ 5.
In June 2002, Baven completed a part-time associate availability form stating that she was available to work no earlier than 8 a.m. and no later than 3 p.m. on any days, and that she was available to work every other weekend. Baven Dep. at 52-53, Ex. 4. Baven submitted several such forms *867 over the following year. Baven listed her availability as between 7 or 8 a.m. and no later than-2 p.m. on the forms, and she requested every other weekend off of work. See Baven Dep. at 52-58, Exs. 6-9. Baven testified that she sometimes worked consecutive weekends but always informed Home Depot that she wanted alternating weekends off work. Baven Aff. ¶ 54; see also Baven Dep. Exs. 4,6,7,9. Despite such forms, Baven testified in her affidavit that she informed “Home Depot during 2002 and 2003 that [she] would work any hours,” as long as she had notice. Baven Aff. ¶ 53.
On June 5, 2002, head cashier (and co-plaintiff) Patrice Bamidele-Acquaye cited Baven for committing a “no call no show” attendance violation on May 30, 2002. Baven testified that she called the store to report that she was going to be absent and had spoken with “security,” but that Bamidele-Acquaye considered the shift a no call no show because Baven failed to speak with a manager. Baven Dep. at 77-78, Ex. 13. 1 Baven testified that she did not believe that Bamidele-Acquaye issued the citation because of Baven’s race. Baven Dep. at 78. Baven also received a no call no show citation on June 23, 2002 from Christina Arney. Baven again testified that she had called the store before it opened to report that she was going to be absent and had talked with “security.” Id. at 79, Ex. 14. Baven testified that she did not have any no call no show violations after June 2002. Baven Aff. ¶ 25.
On June 22, 2002, Baven received a performance evaluation completed by Kellie McCormick and Allyson Alexander. The evaluation stated that Baven was a “Performer” overall and that she was rated as a “Performer” in thirteen of the fourteen rated categories. Alexander and McCormick assigned Baven a rating of “Improvement Required” in the “punctuality/dependability” category. The evaluation stated that Baven worked well with associates and customers and followed procedures as directed, but noted that one of her weaknesses was her attendance and dependability. It also stated: “Maria needs to ensure arrival to and from breaks and lunches on time as well as working scheduled shifts accordingly.” Baven’s “Potential Code” rating was “Grow in Position,” one level below the rating of “Promotable” and a level above the rating of “Placement Issue.” It also listed “Head Cashier” in the “Potential Next Position” category, but did not list a time projection *868 for advancement to the position. Baven Dep. at 63-65, Ex. 10; Baven Aff. ¶18. Baven acknowledged that she experienced “attendance problems,” but she argues that she “was not absent more than some of the white cashiers” and that her absences from work were due in part to the fact that her apartment building was hit by a tornado in “about” spring 2002. Baven Dep. at 63-64; Baven Aff. ¶¶ 13-15, 17.
In July 2002 Baven interviewed for a promotion to the position of head cashier. Baven Dep. at 113. Meadows and Russell interviewed Baven for the position. Baven testified that Meadows informed her that he could not promote her to the head cashier position because she would set a bad example for other employees. Baven Dep. at 88. Baven testified that Meadows informed her that she was not promoted because of her tardiness and her “no shows.” Baven Aff. ¶ 19. Home Depot promoted Almitra Hensley and Erica Elam to head cashier positions in August 2002. Russell Aff. ¶¶ 3, 4; Meadows Dep. at 227-28.
Baven again applied for a promotion to a head cashier position in September 2002. Russell testified that Baven was denied the promotion because other applicants were more qualified and because of her “attendance problems.” Russell testified that between Baven’s July 2002 and September 2002 interviews she was absent from work three times (including once two days before her September interview), left work early twice, and was late to work once. Russell Aff. ¶ 5, Ex. 7. Baven acknowledges that she “was denied the position because of attendance,” Baven Response Br. at 10, and testified that Meadows told her that she was not promoted because of her absences, Baven Aff. ¶ 28, but she argues that she did not have “attendance problems” because the absences were not no call no show absences, but were “approved” and “normal.” Baven Response Br. at 11, citing Baven Aff. ¶¶25, 27. Home Depot hired two external applicants, Christie Haemmerle and William Wendell-Toy, to fill the September 2002 head cashier positions. Russell Aff. ¶ 7; Meadows Dep. at 227-28; Baven Aff. ¶ 27.
Russell testified that head cashiers were required to be available seven days per week, including evening hours on each of those days. Russell Aff. ¶ 6. Baven testified in her affidavit that she informed Russell and Meadows at both her July and September 2002 interviews that she “would work the hours of a head cashier.” Baven Aff. ¶ 29. Baven testified that she was never informed that Meadows and Russell decided not to promote her because of her availability. Baven Aff. ¶ 30.
Baven filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on December 20, 2002 stating that Home Depot discriminated against her because of her race. The charge alleges the following: (1) Home Depot managers and other employees “humiliated” Baven and “talked to [her] like a child”; and (2) Home Depot managers “denied [Baven] cross-training and a promotion to Head-Cashier due to [her] tardiness and no-shows.” Baven Dep. at 87, Ex. 17.
Baven claims that Home Depot’s managers humiliated her and treated her disrespectfully. Specifically, Baven testified that Meadows talked to her “like [she was] a child,” yelling or speaking in a loud voice, including during the meeting when he informed her that promoting her would set a bad example and on another occasion when he scolded her for her performance. Baven Dep. at 87-90, 92-94. She testified that after Meadows “talked to [her] like a child and yelled at [her],” she experienced stress and cried. Baven Aff. ¶ 10.
In April 2003 Almitra Hensley completed a performance evaluation for Baven, *869 rating Baven as a “Performer” overall and as either an “Achiever” or a “Performer” in each of the fourteen rated categories. The evaluation stated that Baven was “dependable, friendly, willing to stay and help out when needed,” and that she “always accomplished the tasks given to her.” The evaluation also stated that Baven needed to “keep personal calls to her breaks.” Baven Aff. ¶ 51, Att. 4. 2
Baven claims that although she did not reduce her availability, Home Depot reduced her hours and constructively dismissed her in retaliation for reporting race discrimination. Baven Dep. at 116; Baven Aff. ¶ 55. Specifically, Baven testified: “In the year 2002, I usually worked over twenty hours per week” but that “in 2003 after I filed my EEOC charge, I usually received far less than twenty hours per week.” Baven Aff. ¶ 36. She also testified, however, that she worked “almost 20 hours per week” during January and early February 2003, a time when she believed that co-plaintiff Patrice Bamidele-Acquaye prepared the schedules, and also that “there were a few weeks” during the spring of 2002 when she was assigned over twenty work hours. Id. ¶¶38, 41. She testified in her affidavit that the more she complained about discrimination at Home Depot, the more her hours were reduced. Id. ¶ 37.
Russell testified that the assigned work hours of part-time associates decreased during fall and winter months because the store experienced its lowest sales volume during that time. Russell Dep. at 48-50. Meadows also testified that the store’s part-time workers worked reduced hours during the months of December, January, and February, also citing the store’s reduced sales volume as the reason for such a decrease. Meadows Dep. at 153, 155.
Home Depot also points to Baven’s limited availability and her insistence on working only every other weekend as additional reasons for any reduction in her work hours. Baven Dep. 52-58, Exs. 4-9. At one point, Baven wrote a note to front end supervisor Michelle Kline inquiring why she had not been given alternating weekends off of work. Baven Dep. Ex. 5. Baven testified that she requested time off from work at Home Depot on many occasions. Baven Dep. at 61. From December 20, 2002, the day Baven filed her charge with the EEOC, to July 3, 2003, the day Baven resigned her position with Home Depot, she requested at least nineteen days off work. Id. at 125-26, Ex. 21. Baven testified that not all of these requests were granted. Baven Aff. ¶ 56. Baven also missed at least eleven of her scheduled shifts during this period and left one shift early. Baven Dep. 61-62,126-27, Ex. 22. Home Depot attendance logs show that many of the absences were for Baven’s illness, the illness of a family member, or for a death in the family. See Baven Dep. Ex. 22.
Baven testified that she asked Meadows if she could be cross-trained in the paint and wall-paper departments at the store so that she could work more hours. Baven testified that she could not remember whether she made such a request before or after she filed her EEOC charge. Ba-ven’s EEOC charge lists denial of cross-training as one of her grievances. Baven Dep. Ex. 102-03, Ex. 17; Baven Aff. ¶ 58. Baven testified that Meadows told her that *870 “they did not have the hours.” Baven Dep. at 103. Meadows testified that he informed Baven that she could use training materials located in the break room to help her advance her training, but that “any specific hours that would be generated for other training within each specific department would have to go to people in those departments first.” Meadows Dep. at 229-30. Baven testified that she observed that these departments needed help, Ba-ven Aff. ¶ 58, but could not remember any specific person who might have told her that the departments needed more help. Baven Dep. at 110. Baven stated in her EEOC charge that she was denied cross-training because of her tardiness and no call no show violations. See Baven Dep. Ex. 17.
Baven claims that she eventually resigned from her position at Home Depot in early July 2003 because she was not assigned a sufficient amount of hours, preventing her from supporting her family. Baven Aff. ¶¶ 60, 63.
Baven also claims that Home Depot discriminated against other African American workers or retaliated against other employees who complained of discrimination. She testified that “Patrice Acquaye had performed the duties of Front End Supervisor for about two months, but Home Depot did not promote her, and instead, promoted white employee Almitra Hensley to Front End Supervisor just a few months after Home Depot promoted Hensley to part-time Head Cashier, which was just a few months after she was hired.” Id. ¶ 46. She testified that after co-worker Alan Akers complained of discrimination, Home Depot terminated his employment. Id. ¶ 45. She also testified that after coworkers Carl Fulmore, Frances Fulmore, and David Taylor complained of discrimination, Home Depot reduced their work hours but did not reduce the work hours of other employees. Id. ¶¶ 42-44. 3 Baven’s African American co-worker, Carl Haslett, submitted an affidavit stating that on one occasion Russell was “screaming and cussing” at Haslett, and later apologized for such actions after Haslett complained to the store manager. Haslett Aff. ¶¶ 57, 59, 60. 4 Additional facts will be included *871 where relevant below, keeping in mind the standard on summary judgment.
Discussion
I. Evidentiary Considerations
A. Baven’s Affidavit
Several paragraphs of Baven’s affidavit testimony must be disregarded as conclusory and lacking any basis in personal knowledge. Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits offered in opposition to a motion for summary judgment be “made on personal knowledge,” that they “set forth facts that would be admissible in evidence,” and that they “show affirmatively that the affiant is competent to testify to the matters stated therein.” Although personal knowledge can include inferences and opinions of the affiant, such inferences must nonetheless be substantiated by specific facts.
Drake v. Minnesota Mining & Manufacturing Co.,
B. Rule 37(c) Objections
In support of its motion for summary judgment, defendant has submitted evidence regarding the hours worked by other employees in 2002 and 2003, and had apparently failed to disclose such evidence to the plaintiffs before filing its motions for summary judgment. See Russell Aff. Ex. 10. Baven claims that Home Depot may not be permitted to rely on such information, citing Rule 37(c) of the Federal Rules of Civil Procedure. The court agrees.
Rule 37(c) provides in relevant part that a party who, without substantial justification fails to disclose information required by Rule 26(a) is not, unless such a failure is harmless, permitted to use such evidence at trial or on a motion. Rule 26(a) requires a party to provide to another party, with or without a formal discovery request, a copy or description of all documents and data compilations in the party’s possession that it may use to support its claims or defenses, unless such information would be used solely for impeachment. Home Depot’s argument that it did not receive a request for such information is beside the point. Rule 26(a) requires disclosure even without such a request. Additionally, the evidence was not submitted for the purpose of impeachment. Home Depot has not offered any other justification for its omission, however, and the evidence, at least with respect to pretext or the fourth element of Baven’s prima facie case of retaliation, is not harmless.
Defendant argues that plaintiff was required by Rule 37 and Local Rule 37.1 to confer with counsel before objecting to its *872 reliance on undisclosed evidence. Rule 37(a)(2) requires a party to certify that it has conferred with opposing counsel as part of a motion to compel discovery, but that is not what the plaintiff seeks here. Rather, plaintiff argues under Rule 37(c) that defendant simply may not rely upon documents that it failed to disclose to the plaintiff in accordance with Rule 26. The Advisory Committee Notes to both the 1993 and 2000 Amendments to Rule 37 make clear that Rule 37(c) operates independent of any motion required by Rule 37(a). Rule 37(c) simply does not require conferral. Local Rule 37.1 is equally inapplicable, as it states that the court may deny a discovery motion where the mov-ant has failed to confer with opposing counsel. This local rule in no way impedes plaintiff from invoking her rights under Rule 37(c) of the Federal Rules of Procedure. Accordingly, the court must disregard 'Exhibit 10 to Russell’s affidavit, as well as Russell’s affidavit testimony reciting the information included in Exhibit 10. See Russell Aff. ¶¶ 13-18.
II. Disparate Treatment
Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Baven has also alleged discrimination in violation of 42 U.S.C. § 1981, which prohibits racial discrimination in the creation and enforcement of contracts. The applicable legal standards on liability for race discrimination are the same under Title VII and § 1981.
Herron v. DaimlerChrysler Corp.,
Baven claims that Home Depot discriminated against her by twice refusing to promote her because of her race in violation of Title VII and § 1981. A plaintiff in an employment discrimination case may survive a motion for summary judgment by presenting direct or indirect evidence raising a genuine issue of fact as to whether the employer acted against her with discriminatory intent.
Ballance v. City of Springfield,
To survive summary judgment on her disparate treatment claims for failure to promote her using the indirect method, Baven must come forward with evidence that would allow a reasonable jury to find on each claim that: (1) she is a member of a protected class; (2) she applied for and was qualified for the promotion; (3) she was rejected for the position sought; and (4) the position was granted to an individual outside of the protected class who was either similarly qualified or less qualified than Baven.
Grayson v. City of Chicago,
A. Baven’s Prima Facie Case
Baven meets the first and third elements of her prima facie case: she is a member of a protected class and she was twice rejected for promotions for which she applied. Home Depot argues that Ba-ven has failed to raise a genuine issue of material fact as to whether she was (1) qualified for the positions; or (2) similarly or more qualified than the persons who were granted the promotions.
1. Qualified for the Positions Sought
Home Depot first claims that Baven cannot show that she was qualified for either promotion because she (1) did not have sufficient availability for the head cashier positions; and (2) had attendance problems that rendered her unqualified for the positions.
The evidence before the court, when viewed in the light reasonably most favorable to Baven, presents a genuine issue of material fact as to whether she was sufficiently available for the positions. Baven does not dispute Russell’s testimony that head cashiers were required to be available seven days per week, including evening hours on each of those days. Russell Aff. ¶ 6. Additionally, Baven’s part-time availability forms show that she repeatedly told Home Depot that she was not available to work in the evenings. Ba-ven also testified, however, that she informed Russell and Meadows at both her July and September 2002 interviews that she “would work the hours of a head cashier.” Baven Aff. ¶ 29. Giving Baven the benefit of the conflicting evidence, a reasonable jury could find that although she reported to Home Depot on her part-time availability forms that as a cashier she would not work evenings, she informed Russell and Meadows that she would work any hours necessary for the promotion.
Ultimately, however, Baven cannot meet her burden to raise a genuine issue of material fact as to whether she was qualified for the head cashier positions because of her undisputed attendance and dependability deficits. Although Baven claims to have called to report her absences, she does not dispute that in the month prior to the first promotion, she received two associate action notices for no call no show violations. Additionally, the evidence shows that between the July 2002 and September 2002 interviews, Baven, who worked part-time, was absent from work three times, left early twice, and was late to work once. Russell Aff. ¶ 5, Ex. 7. 5
In support of her assertion that she was qualified for the head cashier promotion, she offers that “Home Depot never told Baven that she was not qualified for the position of head cashier.” Baven Response Br. at 20. Baven herself testified, however, that during her July 2002 head cashier interview, Meadows informed her that she would “set a bad example,” Baven Dep. at 88, and also informed her that she *874 was not promoted “because of [her] tardiness and no shows.” Baven Aff. ¶ 19. Ba-ven also argues that Home Depot’s management would not have interviewed her if she had not been qualified for the position, but offers no evidence to support such an assertion.
As the plaintiff opposing Home Depot’s motion for summary judgment, Baven carries the burden of raising a genuine issue of material fact as to whether she was qualified for the promotions she sought.
Grayson,
2. Similarly Situated Individuals
On a failure to promote claim, Baven carries the burden of demonstrating a genuine issue of material fact as to whether she was “similarly situated” to those who were granted the promotions in that she was either similarly or more qualified than they were.
Grayson,
(a) August 2002 Promotions
Baven was denied a promotion to a head cashier position for which she interviewed in July 2002. In August 2002, Home Depot promoted Almitra Hensley and Erica Elam to two open head cashier positions. Hensley had approximately fifteen months of experience as a head cashier at Lowe’s, a Home Depot competitor. Hensley had received an associate action notice for going “above and beyond” the responsibilities of her job by assisting in cleaning the front end on June 5, 2002, and in Hensley was named “Cashier of the Month” for June 2002. Russell Aff. ¶ 3, Exs. 1, 2, 3. Hensley was a part-time cashier who was not available to work day shift hours, but was available to work weekends and evenings. Baven Aff. ¶ 20; Russell Aff. Ex. 1. Russell testified that, in deciding to promote Hensley, Meadows considered her strong record of performance at Home Depot and her experience at Lowe’s. Both Hensley and Elam were hired after Baven. Baven Aff. ¶¶20, 21. Elam had worked for years as a cashier and a head cashier at a Home Depot store in Texas. Meadows Dep. at 229; Russell Dep. at 59. 6 Russell testified in his affida *875 vit that neither Hensley or Elam had attendance problems. Russell Aff. ¶¶ 3, 4.
The undisputed evidence shows that Elam and Hensley were more qualified for the head cashier positions than Baven. Hensley had experience as a head cashier at another home improvement outlet, received two commendations for her performance in June 2002, and had no attendance problems. Baven does not dispute this, and does not argue that her own experience or performance rivaled Hensley’s. Baven argues that Hensley “did not work as much time” as Baven. The meaning of this argument is ambiguous, but it is unpersuasive under any construction. If the argument is meant to state that Baven worked more hours than Hensley, it is unsupported by any specific evidence. If the statement is meant to point out that Hensley was hired after Baven, this fact alone, in the face of the other evidence of the two women’s qualifications, is not sufficient to find that Baven was as qualified or more qualified than Hensley.
Nor has Baven offered evidence that she was as qualified as Elam. Testimony from Russell and Meadows demonstrates that Elam had experience as a cashier and head cashier at Home Depot and that she did not have attendance problems. Baven argues that her April 2003 performance evaluation shows that after her June 2002 evaluation Baven was performing consistent with ratings of an “Achiever” and a “Performer.” Baven also notes that she was hired before Elam at the Post Road Home Depot. Even viewing this evidence in the light most favorable to Baven, the court finds no issue of fact as to whether Baven was as qualified as Elam where Elam had prior experience in the head cashier position and more overall experience with Home Depot. Additionally, there is no evidence that Elam had any attendance problems, which also undermines any claim by Baven that she was as qualified as Elam. Accordingly, Baven has failed to meet her burden under the fourth element of the prima facie case with respect to the August 2002 head cashier promotions.
(b) September 2002 Promotions
Baven was also denied a promotion to a full-time head cashier position for which she interviewed in September 2002. Instead of promoting Baven, Home Depot hired Christie Haemmerle and William Wendell-Toy as head cashiers. Meadows testified that Haemmerle had “significant experience” as a front end manager with another home improvement chain. Meadows Dep. at 228. 7 Wendell-Toy had two years of experience as a head cashier at a supermarket and two months experience as a customer service supervisor at a wholesale club. Russell Aff. ¶ 8, Ex. 9; Meadows Dep. at 229. Both were available for full-time positions. Baven’s Home Depot job application demonstrates that she had two years experience from 1991 to 1993 as a night supervisor at Little Caesar’s and five months experience as a cleri *876 cal cashier at Video Gallery Plus. Baven Aff. ¶ 2, Att. 1. Russell testified that a full-time head cashier must be available seven days per week, including available to work every evening. Russell Aff. ¶ 6.
Even when the evidence is viewed in the light most favorable to Baven, there exists no genuine issue of material fact as to whether she was as qualified or more qualified than either Haemmerle or Wendell-Toy. Haemmerle’s significant experience as a front end supervisor at another home improvement store renders Haemmerle more qualified than Baven. The court cannot say, however, that Wendell-Toy’s experience at a supermarket and as a customer service supervisor alone render him more qualified than Baven as a matter of law, particularly in light of the evidence that Baven had some familiarity with Home Depot. Baven cannot meet the fourth element as to either comparator, however. Although she may have had experience and availability similar to her comparators, Baven’s absences and other dependability issues, which she admits were the reasons why she was not granted the promotions, rendered her less qualified than those hired as a matter of law.
Because there is no genuine issue of material fact as to at least one element of Baven’s prima facie case of discrimination, summary judgment on this claim is warranted in favor of Home Depot.
Celotex,
B. Pretext
If a plaintiff can establish a prima facie case of discrimination, a “rebuttable presumption of discrimination” arises, shifting the burden “to the employer to articulate a legitimate, nondiscriminatory reason” for its actions.
Johnson v. City of Fort Wayne,
Baven has not come forward with evidence that the reasons Home Depot asserted for denying her the promotions to head cashier, that she was less qualified *877 and had a record of poor attendance, were pretextual. Baven concedes in fact that she was not offered the promotions for which she interviewed in September because of attendance, see Baven Response Br. at 10-11, and testified that she was repeatedly informed by Meadows that attendance was the reason why she was not promoted. Baven Aff. ¶¶ 19, 28. Baven testified that she did not believe Bamidele-Acquaye issued her a no call no show citation because of her race. Additionally, Baven’s EEOC charge states that she was denied promotions because of her “tardiness and no-shows.” Baven Dep. Ex. 17.
She also argues both in her affidavit and in her briefs that any absences she had between her July and September 2002 interviews were “approved” or “normal,” though she does not offer any further explanation of what these terms mean in this context, or how this evidence demonstrates the dishonesty of defendant’s reason. Whether Baven’s absences were “normal,” or whether “approved” absences should be the basis of promotion decision are of no consequence for the court. The evidence demonstrates without contradiction that Baven was denied the promotions because of her attendance. The court’s role is not to determine whether or not this was a fair or wise basis for making such decisions. See
Ballance,
Baven’s attempts to argue away the evidence of the underlying events demonstrating her absences and tardiness is also unavailing. She claims that she received “no call no show” violations in error, asserting that she phoned security to inform Home Depot that she would be absent. At best, all that this means is that Home Depot’s managers were mistaken in their beliefs about whether she had committed the violations. Demonstrating pretext, however, requires more than a showing that an employer’s decision was mistaken or unwise. “To avoid summary judgment, a plaintiff must present evidence showing that the employer did not honestly believe his proffered reason.”
Hague v. Thompson Distribution Co.,
Nor has Baven presented any additional evidence that would permit a factfinder to find pretext in this case. Baven’s assertions regarding the alleged retaliatory reduction in her co-workers assigned hours are not relevant to her race discrimination claim. Baven’s testimony that Hensley was promoted over co-worker and co-plaintiff Bamidele-Acquaye does nothing to assist Baven’s argument on this score either. Baven has presented no evidence that Bamidele-Acquaye was not promoted because of her race, and the court has found that charge unfounded in a separate decision today granting Home Depot’s motion for summary judgment on that claim. Ba-ven’s assertion that all of the managers at the Post Road Home Depot during her fifteen months of employment were Caucasian, without more, fails to show that she was denied a promotion because of her race. Additionally, evidence that Baven’s supervisors were not kind in reprimanding or otherwise communicating with her and Haslett, while perhaps unfortunate, does not demonstrate or raise the inference that
*878
Baven was not promoted because of her race.
Berry v. Delta Airlines, Inc.,
A party must present more than mere speculation or conjecture to defeat a summary judgment motion. The issue is whether a reasonable jury might rule in favor of the non-moving party based on the evidence in the record.
Anderson v. Liberty Lobby,
III. Retaliation
Baven also claims that Home Depot reduced her assigned work hours, constructively discharging her in retaliation for reporting race discrimination in violation of both Title VII and § 1981. Home Depot denies that it retaliated against Baven. It claims that Baven worked reduced hours because all part-time employees were assigned fewer hours during the low-volume period in question, because her availability was limited, and because she requested days off and missed several days of work during the relevant period. A plaintiff may prove her claim of retaliation using either the direct or indirect methods of proof. Baven has not presented direct evidence of retaliation.
To demonstrate a prima facie case of retaliation under the indirect method, the plaintiff must come forward with evidence that (1) she engaged in a protected activity; (2) she was performing her job in accordance with her employer’s reasonable expectations; (3) she suffered a materially adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in the protected activity.
Beamon v. Marshall & Ilsley Trust Co.,
A. Baven’s Prima Facie Case of Retaliation
1. Materially Adverse Employment Action
The standard for whether an adverse employment action is “material,” and therefore actionable is somewhat broader for retaliation claims than for disparate treatment claims. See 42 U.S.C. §§ 2000e-2(a), 2000e-8(a). “[I]n the retaliation context, an employer’s action will be actionable under § 2000e-3(a) if it would have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ”
Whittaker v. Northern Illinois Univ.,
Applying the reasoning in Washington and Firestine, the reduction of an employee’s assigned work hours, which in turn brings with it a reduction in the employee’s compensation, can amount to a materially adverse action in a retaliation claim. The parties do not dispute that Baven’s hours were reduced after February 2003. Accordingly, Baven has raised a genuine issue of material fact as to whether she suffered a materially adverse employment action of a reduction in hours with respect to her retaliation claim.
Baven has also raised a genuine issue of material fact as to whether her hours reduction amounted to a constructive discharge. Constructive discharge, like actual discharge, is an adverse employment action.
Williams v. Waste Management of Illinois,
2. Similarly Situated Individuals Outside of the Protected Class
Baven must also come forward with evidence that she was treated less favorably than a similarly situated individual who did not engage in a protected activity. Employees are similarly situated for the purposes of a retaliation claim only if they are “directly comparable in all material aspects.”
Hudson v. Chicago Transit Authority,
*880 The only evidence Baven has offered regarding Home Depot’s treatment of other -employees relevant to her retaliation claims is found in her affidavit statements regarding co-workers Mandy Monroney, Kelly Wessell, Tara Outlaw, and Carla Roberson. Russell identified these employees as part-time cashiers at the Post Road Home Depot who did not complain of discrimination. Russell Aff. ¶ 18.
Baven testified that “Mandy Monroney was a white employee who was hired after [Baven] and she was later given a full-time position.” Baven Aff. ¶ 66. Baven fails to provide any information as to whether Monroney was similarly situated to Baven. Additionally, the statement that Monroney was “later given a full-time position” fails to support an inference that Monroney was treated more favorably than Baven relevant to her hours reduction claim. Baven provides no evidence of when Monroney was transferred to such a position, whether the position was a cashier’s job or a promotion, or any other relevant information. While the court is required to draw reasonable inferences in Baven’s favor, this requirement does not compel the court to invent conclusions unsupported by the evidence presented.
Frost Nat’l Bank v. Midwest Autohaus, Inc.,
Baven testified that Kelley Wessell was hired after Baven, that Wessell “had to take care of her sick mother, and she did not want more hours.” Baven Aff. ¶ 67. Additionally, Baven testified that “Carla Roberson [was] a black employee who was hired after [Baven], who did not complain about discrimination, but who normally worked about fifteen hours per week.” Id. ¶ 69. Baven draws upon these statements to argue that she was not similarly situated to either Wessell or Roberson. See Baven Response Br. at 29. Even ignoring this misguided argument, however, the statements fail to raise a genuine issue of material fact as to whether Baven was treated less favorably than either Wessell or Roberson with respect to the hours reduction retaliation claim.
Baven also testified in her affidavit as follows: “Tara Outlaw was African American, did not complain about race discrimination, and received almost 30 hours per week in the spring 2003 when Baven requested additional hours.” Baven Aff. ¶ 68. The admissible evidence demonstrates that Outlaw and Baven were both part-time cashiers and that Baven complained of race discrimination while Outlaw did not. Baven has raised a genuine issue of material fact as to whether Outlaw worked over 30 hours per week during the same period in which Baven worked less than 20 hours and claims to have repeatedly asked for more assigned work hours. Baven need not demonstrate that she is identical to Outlaw, only that the two are similar in all relevant aspects.
Rogers,
*881 B. Baven’s Showing of Pretext
When a plaintiff succeeds in establishing her prima facie case, the burden then shifts to the defendant to produce a legitimate reason for taking the adverse action against the plaintiff.
Hilt-Dyson,
Home Depot has offered evidence that work hours for Baven were reduced less than several other part-time cashiers, and that she worked more hours during Spring 2003 than many of her peers who did not engage in a protected activity. Home Depot may not rely on such evidence because it was not properly disclosed in accordance with Rules 26 and 37(c) of the Federal Rules of Civil Procedure. Meadows and Russell testified that low sales volume accounted for a reduction in part-time employee work hours during the fall and winter months, or December, January, and February. Baven claims, however, that her hours were not reduced until mid-February 2003. Baven Aff. ¶¶ 36, 38. The evidence upon which the court may now rely in evaluating Baven’s claim demonstrates a genuine issue of material fact as to whether Home Depot’s claim that Baven’s hours were reduced as part of a seasonal lull that caused Home Depot to reduce the hours of many of its part-time workers was factually baseless.
Additionally, there exists a genuine issue of material fact as to whether Baven’s reduction in hours during spring 2003 was “self-imposed,” as claimed by Home Depot. The record shows that Baven requested at least nineteen days off of work, informed Home Depot she wanted to work only alternating weekends, missed approximately eleven days of work, and left early one day between her December 2002 EEOC complaint and her resignation in July 2003. Such absences and requests could account for a reduction in Baven’s assigned work hours, particularly for a part-time worker. It remains unclear, however, how many of Baven’s requests for days off were granted. Also unresolved is whether Baven’s absences were greater than those before she complained, in light of evidence of her attendance problems as of September 2002. Additionally, the evidence demonstrates that Baven may have informed Home Depot that she would work more hours than those indicated on her part-time availability forms.
In light of such evidence, the court finds that Baven has raised a genuine issue of material fact as to whether Home Depot’s proffered reasons for the reduction in her work hours has a basis in fact. In so doing, the court does not determine whether Baven will be likely to prove her retaliation claim by a preponderance of the evidence. At this stage in the litigation between the parties, the court must give Baven the benefit of all of the conflicts in the evidence and must resolve all reasonable inferences in her favor.
Baron,
Conclusion
For the foregoing reasons, the court finds that Home Depot’s motion for summary judgment on all claims of plaintiff Maria Baven, Docket No. 87, is GRANTED as to Baven’s claims that Home Depot refused to promote her in 2002 because of her race and DENIED as to Baven’s claim that her assigned work hours were reduced in retaliation for her charge of discrimination.
So ordered.
Notes
. Baven testified in her affidavit that she had called the store before it opened and "told the white manager that [she] would be absent/' but that he did not note it on the company's attendance records. Baven Aff. ¶ 16, During her deposition, Baven had testified that she "called the phone center when no one was in there and it was security, so they knew that I was not coming in,” and that Bamidele-Ac-quaye "considered that a no call/no show because I didn’t get to speak to a manager.” Baven Dep. at 78. "Where [a] deposition and [an] affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken....”
Russell v. Acme-Evans Co.,
. Paragraph 26 of Baven's affidavit states that she "believe[s]” that she was given another performance evaluation between the June 2002 and April 2003 evaluations, but that Home Depot did not disclose such an evaluation in discovery. Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavit statements "shall set forth such facts as would be admissible in evidence....” Ba-ven's statement that she “believes” she had another evaluation is only inadmissible speculation.
. Baven also cites the affidavit of Michael L. Easterling, former assistant manager of Home Depot. In addressing Baven’s claims, the court need not reach the many admissibility issues presented by Easterling's affidavit, which is replete with hearsay, speculation, and conclusoiy statements. By Easterling's own account, he was not hired to work at Home Depot until January 2004 and appears to have begun work at the Post Road Home Depot in late March 2004, several months after Baven resigned her position with Home Depot. The affidavit contains testimony regarding statements made by Easterling and Russell after Easterling began his employment at Home Depot stating that Hensley was not competent. Easterling’s affidavit contains no information regarding either the 2002 promotions or the 2003 scheduling of Baven's work hours and provides no evidence that Easterling even worked with Meadows. His affidavit is therefore irrelevant to the issues before the court on Baven's claims. See,
e.g., Cullen v. Olin Corp.,
. Paragraph 58 of Haslett's affidavit states that he complained that “Russell did not talk to white employees like that.” This statement must be disregarded because it is conclusoiy and lacks a basis on Haslett's personal knowledge. See Fed.R.Civ.P. 56(e).
. Additionally, Baven's June 2002 performance evaluation, while rating Baven a "Performer” and stating that she performed tasks as directed and worked well with others, repeatedly referenced her weaknesses with punctuality and dependability. The evaluation not only cited Baven’s weaknesses in working scheduled shifts, but also stated that she needed to work on arriving to and from breaks and lunches on time. The evaluation stated that Baven had the potential to be a head cashier, but did not list any projected time frame for such a promotion. The evaluation rated Baven’s "Potential Code” as "Grow in Position,” not as "Promotable.” Baven Dep. at 63-65, Ex. 10.
. Plaintiff objects to paragraph 4 of Russell’s affidavit and Exhibit 6 to Russell's affidavit, which refer to and include Elam's Home Depot job application, arguing that Rule 37(c) of the Federal Rules of Civil Procedure bars Home Depot from relying on this information because it was not properly disclosed in accordance with Rule 26(a). As previously explained, Rule 37(c) provides in relevant part that a party who, without substantial justification fails to disclose information required by Rule 26(a) is not, unless such a failure is harmless, permitted to use such evidence at trial or on a motion. Rule 26(a)(1)(B) requires a party to provide to another party, with or without a formal discovery request, a copy or description of all documents and data compilations in the party's possession that it may use to support its claims or defenses, unless such information would be used solely for impeachment. The court need not determine whether Home Depot had a substantial justification for failing to disclose the evidence, however. The admission of deposition testimony from Meadows and Russell as to Elam’s experience renders admission of *875 Elam's job application harmless for the purpose of summary judgment.
. Plaintiff objects to Exhibit 8 to Russell’s affidavit, Haemmerle’s job application, arguing that Rule 37(c) of the Federal Rules of Civil Procedure bars its use because it was not properly disclosed in accordance with Rule 26(a). As was the case with previous Rule 37(c) objections, Home Depot’s argument that it did not receive a request for such informalion is beside the point. Rule 26(a) requires disclosure even without such a request. The court need not determine whether Home Depot had another substantial justification for failing to disclose the information. The admission of testimony from Meadows regarding Haemmerle’s "significant experience” at Central Hardware renders admission of the application harmless for the purposes of summary judgment. See Meadows Dep. at 228.
. Additionally, any evidence pertaining to the attendance or work performance of the comparator employees
after
the promotion decisions is irrelevant to the questions of whether (1) Baven was similarly qualified or more qualified than the comparators; or (2) Home Depot's reason for denying Baven the promotions was pretext. See Fed.R.Evid. 401, 402; see also
Cullen v. Olin Corp.,