Opinion
No. 02 C 7062.
May 21, 2004
MEMORANDUM OPINION AND ORDER
In her Complaint, Plaintiff Martha Collier alleges that Bankers Life Casualty Co. ("Bankers Life") failed to hire her for the position of systems analyst because of her race. On April 30, 2002, Collier applied for the systems analyst position via email by sending an application to recruiterone@bankerslife.com. On May 28, 2002, Collier contacted Jan Marszalek to inquire about the status of her job application. Marszalek referred her to Bankers Life's new staffing coordinator, Jill Morice. Morice informed Collier that all applications sent to the above email address had been deleted. In fact, the email address to which Collier sent her application had belonged to a former employee and had inadvertently remained active after the employee's departure from Bankers Life. One week prior to Collier's inquiry, May 22, 2002, the systems analyst position was canceled by Human Resources without being filed. After filing a complaint with the Equal Employment Opportunity Commission ("EEOC") and receiving her Right to Sue letter, Collier filed this lawsuit.
Bankers Life now moves for summary judgment on Collier's remaining Title VII claim. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). In determining whether any genuine issue of material fact exists, I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of fact exists only when, based on the record as a whole, a reasonable jury could find for the non-movant. Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999).
Bankers Life argues that Collier's claim fails because she cannot establish a prima facie case of discrimination. To establish her prima facie case, the plaintiff must show that she is a member of a protected class, she applied for and was qualified for an open position, the employer rejected her for the position, and the employer filled the position with an individual outside plaintiff's protected class or the position remained vacant. Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir. 2002).
Given the facts presented here, Collier cannot establish that she was rejected from the position or that the position remained vacant or was filled by a person outside the protected class. Collier's application was never reviewed by Bankers Life let alone rejected. Bankers Life was unaware of Collier's application because it was sent to an email account that had inadvertently been left open but was not in use. Collier did make an inquiry about the application to the staffing coordinator, Jill Morice, but not until after the position had been eliminated. The systems analyst position for which Collier applied was eventually cancelled; it was not filled by another employee nor did it remain vacant. See Gibbs, et. al. v. G.D. Searle Co., 98 C 2538, 2000 U.S. Dist LEXIS 9651 at *72 (N.D. Ill. July 10, 2002) (the court granted summary judgment to the defendant on plaintiff's Title VII claim because the defendant withdrew the position without filing it).
In her Response, Collier appears to make two new allegations: (1) that the systems analyst position was cancelled in retaliation against her, and (2) she was fired in retaliation for bringing this suit. I will address Collier's first claim of retaliation because it is closely related to the issues and facts presented in this case. Collier claims that the cancellation of the systems analyst position was done in retaliation against her. However, Collier does not allege that she was engaged in a protected activity at the time the position was cancelled. See Smart v. Ball State Univ., 89 F.3d 437, 440 (7th Cir. 1996) (to establish a prima facie case for retaliation, the plaintiff must show that she engaged in a protected activity). It is difficult to understand how the cancellation could be viewed as retaliation since the systems analyst position was canceled nearly one week before Collier made any inquiry about her application at Bankers Life and nearly two weeks before Collier filed her EEOC complaint.
Collier also claims that she was fired in retaliation for filing this suit. Collier may find this claim to be somewhat problematic because Bankers Life has presented evidence that she was fired for failing to report to work between November 25, 2003 and December 8, 2003. However, unlike Collier's other new retaliation claim, this claim is not related to the underlying facts of her Complaint and is not integral to a decision here. The question of whether Collier can overcome Bankers Life's proffered non-retaliatory reason for her termination by showing it is merely pretextual and must be left for another time and another suit.
For the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED.