Opinion
NA 97-162-C-B/G
September 29, 2000
ENTRY GRANTING SUMMARY JUDGMENT TO DEFENDANT MCSI AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE
Rita Manning sued her former employer, Charlestown Hospital, Inc., d/b/a The Medical Center of Southern Indiana ("MCSI" or "the Hospital"), on the grounds that the Hospital discriminated against her due to sex, in violation of Title VII, when it took a number of allegedly adverse employment actions against her. Manning also alleged that MCSI retaliated against her for protesting employment actions she believed to be discriminatory and for filing a charge with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff's retaliation claims are based on Title VII and the Age Discrimination in Employment Act ("ADEA").
Defendant filed a Motion for Summary Judgment and a Memorandum in Support of Defendant's Motion for Summary Judgment ("Defendant's Memo."). Plaintiff responded by filing Plaintiff's Answer Brief in Response to Defendant's Motion for Summary Judgment (Plaintiff's Ans. Brief). Further briefs followed, including Defendant's Motion to Strike Plaintiff's Surreply in Opposition to its Motion for Summary Judgment ("Defendant's Motion to Strike").
For the reasons set forth below, Defendant is entitled to summary judgment on the sex discrimination and retaliation claims. We also grant, in part, and deny, in part, Defendant's Motion to Strike.
Factual Background
Plaintiff's early work history at the Hospital is untroubled. She was hired in August of 1976 and worked there until August of 1988, when she left for a similar job in Indianapolis. Defendant's Facts, ¶ 1. In November of 1990, Ms. Manning returned to the Hospital as director of two departments, Materials Management and Laboratory Services.
Citations are to the numbered statements of fact and responses thereto submitted by Defendant and Plaintiff pursuant to Local Rule 56.1. We note that the statements of "fact" were often poorly disguised legal arguments surrounding precious kernels of facts. The parties occasionally "denied" each other's statements without addressing the facts incorporated in the statements. Such "denials" are understood to be objections. The practices of both parties' counsel made the task of determining the undisputed facts considerably more difficult. Under Local Rule 56.1(g), we will assume that a party admits all facts (supported by admissible evidence) as claimed, unless the party responds by citing specific supporting evidence in contravention of fact.
Defendant's Facts, ¶ 2. She received good reviews for the work she performed in 1991 and 1992. Plaintiff's Addt'l Facts, ¶ 78 (citing Pl. Exs. 21-23). When hospital management was contracted out to American MedTrust ("AMT"), Tom McNaull, CEO of AMT, asked Plaintiff to become part of the Administrative Management Team ("the Team"). Id.; Defendant's Facts, ¶ 9.
Problems began for Ms. Manning soon after she returned from maternity leave in January of 1994. Kevin Miller took over as CEO of the Hospital that same month.
Defendant's Facts, ¶ 5. At their first meeting, Mr. Miller informed Ms. Manning that he would find it acceptable if she chose not to remain on the Administrative Management Team. Plaintiff's Addt'l Facts, ¶ 80. Miller claims that he thought she might want to give up her place on the Team in order to spend more time with her new child. Miller Depo. at 168. Plaintiff had not indicated that she wanted to be relieved of that responsibility, and she rejected his suggestion. Plaintiff's Addt'l Facts, ¶ 80. Then, in September of 1994, Miller removed Plainitff from the Administrative Management Team. Defendant's Facts, ¶ 18. Miller had discussed with the Team his concerns over the job performance of another department manager, Bobbie Campbell. Defendant's Facts, ¶ 13. Ms. Manning acknowledges that it is possible that she made a comment to Ms. Campbell stating something similar to "watch your back, Kevin Miller is not your friend." Plaintiff's Resp. to Defendant's Facts, ¶ 17. Miller explains that he removed Ms. Manning from the Team because her statements to Ms. Campbell were a breach of confidentiality. Id. at ¶ 18. Manning disputes the confidential nature of the information divulged to Ms. Campbell. Plaintiff's Facts, ¶ 17.
Also in the autumn of 1994, a new computer program for materials management was being installed in the Hospital. Defendant's Facts, ¶ 21. Miller states that Manning was responsible for the implementation of the computer program. Defendant's Facts, ¶ 21. Ms. Manning asserts that she was only a liaison between the vendor and hospital management.
Plaintiff's Facts, ¶ 21. It is clear that Mr. Miller perceived Ms. Manning as having responsibility for the timely implementation of the computer program. Manning Depo. Vol. I, Ex. 20. Installation of the computer program did not proceed as Miller had hoped.
In November of 1994, Manning sent Miller a memorandum indicating that "[t]he Computer Program should be available for use within two weeks." Manning Depo. Vol. I, Ex. 13. It was March of 1995 before the program was available for use. Defendant's Facts, ¶ 24.
The inauguration of the materials management program coincided closely with the annual performance evaluation of Ms. Manning on or about March 24, 1995. Defendant's Facts, ¶ 25. Her first evaluation from Mr. Miller, done in May of 1994, had not been as favorable as those Ms. Manning had received from prior supervisors. Defendant's Facts, ¶ 7; Manning Depo. Vol. I, Ex. 7. The computer delay did not bode well for an improved evaluation in 1995. Indeed, the set back in the implementation of the computer program figured prominently in Miller's evaluation of her work. Manning Depo. Vol. I, Ex. 24. Ms. Manning was also criticized for failing to adequately train employees, for disorganization in Materials Management, and for poor communication in the department. Id. Mr. Miller further complained that Ms. Manning did not support his decisions and policies and did not display loyalty to him. Id. Simultaneously with the performance evaluation, Defendant removed responsibility for directing materials management from Ms. Manning and decreased her pay by $10,000. Manning Depo. Vol. 1, Ex. 24. Defendant's Facts, ¶ 27; Plaintiff's Fact, ¶ 25.
Subsequent to Manning's departure from MCSI, Ken Stone, another one-time Director of Materials Management, was demoted from that position. Pl. Ex. 2. He did not receive a pay cut. Id.
On April 6, 1995, Manning sent McNaull a grievance in response to the evaluation, demotion and pay cut she had received in March of 1995. Manning Depo. Vol. I, Ex. 25. In the grievance, Manning said that she "[w]as made to feel by CEO if you had a difference of opinion and said anything but `Yes Sir' you were argumentative and nonsupportive." Id. She also attempted to present her side of the story with regard to Miller's negative evaluation of her work. Id. Finally, she opined that "[m]y removal from Materials Management, like many other things done in the hospital, has the appearance of sexual discrimination." Id.
Defendant has since characterized her grievance letter as "vituperative" and as "the best example of the negative, disloyal attitude Miller had described in his evaluations of Manning." Defendant's Memo. at 8.
Marc Curtis, another hospital employee, replaced Ms. Manning as Director of Materials Management. Defendant's Facts, ¶ 29. A brief description of some of the more colorful aspects of Curtis's work history demonstrates why Manning may have felt that replacing her with Curtis added salt to the wound of her demotion. It also provides a good introduction to MCSI's management problems. On January 27, 1994, Joie Truman (now Joie Shields), a former Dietetic Assistant at the Hospital, met with Kevin Miller and Donna Mullins, Director of Human Resources. Shields Aff., ¶ 5; Pl. Ex. 8. At this meeting, she presented concerns about the Dietary Department which she felt were the fault of Mr. Curtis, then Director of Dietary/Engineering/Housekeeping. Shields Aff., ¶ 5. She also alleged that Curtis sexually harassed female employees. Id. at ¶¶ 5-6. Alleged instances of sexual harassment included saying "all she needs is a stiff dick" as a "response" to women he thought were upset. Pl. Ex. 8. The manner in which the Hospital handled the allegations is disputed. Compare Plaintiff's Addt'l Facts, ¶¶ 90-102 with Defendant's Resp. to Plaintiff's Facts, ¶¶ 90-102. Seeking to avoid a trial within a trial, the Court notes that Miller and Mullins met with Curtis to discuss these issues; that Miller instructed Curtis that sexually harassing behavior is subject to discipline at the Hospital; and that Curtis denied all allegations of sexual harassment. Pl. Ex. 8. Mr. Curtis was later fired when it was discovered that he had pled guilty to the felony of theft by deception for misappropriation of funds at his prior place of employment. Plaintiff's Addt'l Facts, ¶ 127.
As explained below in the section discussing direct evidence, Curtis was not the only hospital administrator to have a distorted understanding of women.
All of this information would be highly supportive of Plaintiff's case if Curtis had ever had decision making authority over her employment at the Hospital. However, because he was never her supervisor, Curtis' behavior and work history simply illustrate the serious, but not actionable, mismanagement at MCSI.
On September 19, 1995, Plaintiff filed a charge of discrimination based on sex and age with the EEOC. Plaintiff's Addt'l Facts, ¶ 75.
Plaintiff has not pursued her charge of age discrimination in court. Complaint, Count II, ¶ 14.
On January 15, 1996, Rita Manning received her last performance evaluation from Kevin Miller. The comments on that evaluation are generally more favorable than those of the two previous years. Defendant's Facts, ¶ 35; Manning Depo. Vol. II, Ex. 32. Positive comments are as follows: "Has hired and trained qualified lab staff;" "No morale problem in lab to my knowledge;" "Improved relations with coworkers." Manning Depo. Vol. II, Ex. 32. Miller continued to express frustration with her level of support of his administration.
He writes that Manning "[d]oes not state support, or lack of support, of CEO's decisions and policies to the best of my knowledge." Id. In conjunction with this evaluation, Plaintiff also received a three percent raise in her salary, which was a higher raise than she had received the year before. Defendant's Facts, ¶ 36.
Problems between Ms. Manning and Mr. Miller resurfaced in June of 1996. In May of that year, Miller, on the advice of Manning, had decided to replace Medical Towers Laboratory ("MTL") with LabCorp as the reference laboratory for the Hospital. Pl. Ex. 12.
Soon after notifying MTL of that decision, Miller asked AnnMarie Merta, an MTL employee, to provide "concrete examples of the difficulties MTL has experienced" with the Hospital. Defendant's Resp. to Plaintiff's Addt'l Facts, ¶ 143; Pl. Ex. 11. Ms. Merta complained at length about communication problems with Ms. Manning. Pl. Ex. 11. In a memorandum from Manning to Miller, dated July 16, 1996, Plaintiff responded to Merta's complaints. Defendant's Resp. to Plaintiff's Addt'l Facts, ¶ 143; Pl. Ex. 13. Then, on August 19, 1996, Darwin K. Edwards, M.D., Medical Director of MTL, sent Miller a letter exonerating Ms. Manning. Pl. Ex. 14. Ms. Manning stated that, as far as she knew, no adverse action was taken against her as a result of the dispute with MTL or as a result of Ms. Merta's complaints about Ms. Manning. Manning Depo. Vol. II, 126-27.
However, the situation with MTL was not the only disturbance at the Hospital in the summer of 1996. On or about July 19, 1996, Miller announced a reorganization of hospital management. Defendant's Facts, ¶ 37. Wayne Obertate, a hospital employee who had been disciplined that same month for "less than average performance," Plaintiff's Additional Facts, ¶ 155; Pl. Ex. 4, was promoted to the newly-created position of Administrative Director of Professional Services. Defendant's Facts, ¶ 38. Rather than report directly to Miller, Ms. Manning, along with the directors of radiology and pharmacy, were to begin reporting to Obertate. Id. Plaintiff's Addt'l Facts, ¶ 155; Pl. Ex. 4. Also that summer, on August 27, 1996, Ms. Manning received a written reprimand from Obertate for failing to attend a sports physical. Defendant's Facts, ¶ 45; Manning Depo. Vol. II, Ex. 41. Plaintiff was aware that hospital managers were required to attend one of the sports physicals as part of the Hospital's community service efforts. Defendant's Facts, ¶ 44. Ms. Manning participated in a health fair which she believed fulfilled the community service requirement even though no hospital administrator had pre-approved the substitution. Plaintiff's Resp. to Defendant's Facts, ¶ 45. Anne Mills, another hospital administrator, was also disciplined for failing to attend a sports physical. Id., ¶ 46.
Ms. Manning filed an amended EEOC charge adding retaliation and new incidents on October 3, 1996. Id.; Pl. Ex. 16. Defendant claims that it did not receive notice from the EEOC that the amended charge had been filed. Mullins Aff., ¶ 9. Plaintiff has not included relevant evidence to the contrary. The earliest date for which there is direct evidence that Obertate, Mullins or Miller was aware of Manning's October 1996 amendments to her 1995 EEOC charge is November 22, 1996. As explained below, employees from the laboratory were interviewed on that date as part of an investigation of problems in Laboratory Services. Defendant's Facts, ¶ 56. Laura Crain was one of the lab employees interviewed at that time. Id. at ¶ 58. She informed Obertate and Mullins that Manning had told her that Manning was amending her "lawsuit" because she was passed over for the administrative position to which Obertate had been promoted. Mullins Aff., Ex. 3.
Counsel for Plaintiff is admonished to be more careful with court filings in the future. The amended charge was not attached to the Complaint. Plaintiff's counsel also failed to include the amended charge when filing Plaintiff's Ans. Brief and exhibits on November 15, 1999. The Index of Plaintiff's Evidence filed with the exhibits states that Exhibit 16 is "Cover letter to EEOC from Jon Hardy with mail return receipt and Addendum to Charge No. 240952532 dated September 28, 1996." However, the exhibit marked "Exhibit 16" is actually another copy of Ms. Manning's performance evaluation from March of 1995. On November 16, 1999, Plaintiff's counsel sent Magistrate Judge John P. Godich a courtesy copy of Plaintiff's Ans. Brief and exhibits. Exhibit 16 in that copy was the letter to the EEOC that the index indicated it should be (except for the fact that the cover letter was actually dated October 1, 1996). The Court considers this amended charge only because Defendant appears to have received the same materials that were sent to Judge Godich. See Defendant's Reply on its Motion for Summary Judgment at 17, fn. 7 ("Curiously, though Manning attached her 1995 and 1997 EEOC Charges to her Complaint, she did not attach the alleged 1996 amendment now tendered with her counsel's affidavit.") (emphasis added).
In Plaintiff's Surreply Brief in Opposition to Defendant's Motion for Summary Judgment, Plaintiff submits an EEOC case log in an attempt to show that Defendant received notice of the amended charge. There are two problems with this strategy. First, the EEOC case log records no communication with Defendant in October or November of 1996, despite the fact that it is a detailed log. Second, the case log is not responsive to any new evidence or objections raised in Defendant's Reply, in contravention of Local Rule 56.1. See Local Rule 56.1 ("In the event the moving party submits any additional evidence with its reply brief or objects to the admissibility of evidence cited in opposition to the motion, the non-movant may file a . . . surreply brief responding only to the moving party's new evidence and/or objections. [It] may be accompanied by additional evidence to the extent it is responsive to the moving party's new evidence and/or objections."). The Hospital attached an affidavit from Donna Mullins to its Memorandum in Support of Defendant's Motion for Summary Judgment. In her affidavit, Mullins clearly states that the Hospital was not informed of any amendments to her EEOC charge in October of 1996. Mullins Aff., ¶ 9.
Because of such problems with Plaintiff's Surreply, Defendant filed a Motion to Strike. To the extent that the evidence and arguments in the surreply respond to arguments, objections, and evidence raised in Defendant's original memorandum, Defendant's Motion to Strike must be granted. Any other evidence and arguments in Plaintiff's Surreply are either immaterial to any decisive factual or legal issues in the case or are actually supportive of Defendant's position. For this reason, Defendant's Motion to Strike also must be denied, in part, as moot.
Finally, the Court recommends that any attorney supporting or opposing a motion for summary judgment follow Judge Tinder's useful advice on sound motion practice as set forth in Pike v. Caldera, 188 F.R.D. 519 (S.D.Ind. 1999).
Because there was no lawsuit at the time, it is reasonable to assume that Obertate and Mullins understood that Manning amended her EEOC charge rather than a not-yet-existent law suit.
The next major event in this story did not occur until November 19, 1996, which was the beginning of the end of Plaintiff's employment at MCSI. On that morning, Wayne Obertate received an electronic page from Marvin King, a lab employee. Defendant's Facts, ¶ 47. Obertate responded to the page by meeting with King and two other lab employees later on November 19. Id. King contacted Obertate to discuss dissatisfaction with the pay raise structure. Id. At the time, departmental salary increases were not to average more than 3.5% per year. Id. at ¶ 50. Department directors, including Ms. Manning, could recommend a raise of up to 5% for any individual employee, as long as the aggregate raises averaged out to 3.5%. Id. at ¶ 52. In an effort to keep the salaries of employees in a particular department of the Hospital in line with the pay of employees in a corresponding department of hospitals of similar size and location, additional raises calibrated to market salary surveys were sometimes granted on a department-by-department basis. Plaintiff's Addt'l Facts, ¶ 181. The CEO, Mr. Miller, made decisions regarding market-driven adjustments to raises. Id.
The parties' accounts of what transpired at this meeting differ. In a memorandum to Mr. Miller about the meeting, Obertate states that the employees with whom he met were unfamiliar with the system for determining market and merit pay raises. Obertate Depo. Ex. 48. According to Obertate's memorandum, the employees said that Ms. Manning "just always says that she would give us more money if she could but her hands are tied." Id.
Plaintiff attempts to deny this fact by stating that "Obertate's own notes regarding meeting with Marvin King are contrary to Defendant's statement." Plaintiff's Resp. to Defendant's Facts, ¶ 49. Assuming that Plaintiff is referring to Obertate's memorandum to Miller since Plaintiff does not cite to another part of the record, her reasoning appears obtuse, at best, to the Court. Plaintiff also cites to the affidavit of Marvin King to deny that her employees reported to Mr. Obertate that inquiries about pay raises were met with the response "my hands are tied." In his affidavit, King states, "I did not tell Obertate that Rita [Manning] had not tell [sic] how the 3.5 percent average merit increases worked." King Aff. at 2. King's affidavit does not deny that Manning told her employees that her options with regard to pay raises were limited by the CEO, as the above explanation of the system for determining raises shows they were.
Obertate concluded from the meeting that the laboratory "was in real trouble" with a morale problem that could lead to immediate resignation by some employees. Defendant's Facts, ¶ 55 (citing Obertate Depo. at 121-22). Plaintiff denies that Mr. Obertate was concerned about the laboratory, stating that the concerns are a post hoc excuse created "years later" and that they "are contradicted by Defendant's reactions to situations in which employees really did leave the hospital." Plaintiff's Resp. to Defendant's Facts, ¶ 55.
Plaintiff does not cite to any part of the record indicating how Defendant responded to employees' decisions to leave their jobs. Also, comparing the "reaction" of Defendant, a corporation, to that of Obertate is uninformative. Finally, Obertate's report about the meeting concludes that "[t]he group appeared concerned about the management of the laboratory and how information is managed in the department." Obertate Depo. Ex. 48.
The report is dated November 19, 1996, not "years later" as Plaintiff contends, and it shows that Obertate was worried about the department at the time.
Obertate and Mullins decided to conduct an investigation, based on the concerns raised by the meeting between Obertate and lab employees. Defendant's Facts, ¶ 56. Manning was suspended with pay during the investigation. Obertate "felt that her remaining in the Laboratory during the investigation would impede the investigation." Obertate Depo. at 129. The investigation consisted of interviewing eight employees of the laboratory.
Plaintiff was originally informed that she was suspended without pay. Plaintiff's Addt'l Facts, ¶ 195. When Manning met with Mullins and Obertate on November 29, 1996, they informed her that suspending her without pay was a mistake and that she would be paid during the time she was suspended. Id.
Defendant's Facts, ¶ 58. From these interviews, Obertate and Mullins learned that Manning referred to Miller as "short shit" and "little man" before her subordinates; that the laboratory was dirty and suffering a shortage of butterfly needles; and that Manning "would fly off the handle at employees." Defendant's Facts, ¶ 60.
On November 29, 1996, Obertate and Mullins met with Manning to discuss the problems raised during the investigation. Defendant's Facts, ¶ 61. During the interview, Plaintiff admitted referring to Miller as "short shit" and confirmed that there was a persistent problem with shortages of butterfly needles. Id. at ¶¶ 62, 65.
Following the discussion with Ms. Manning, Obertate recommended to Mullins that Manning be discharged, and Mullins concurred. Id. at ¶¶ 66-67. Miller then approved their recommendation that Manning's employment be terminated. Id. at ¶ 68. On December 2, 1996, the Hospital informed Manning, through her legal counsel, that she could resign or the Defendant would terminate her employment. Id. at ¶ 69. On December 31, 1996, Manning submitted her resignation through her attorney. Plaintiff's former position of Director of Laboratory Services was filled by Lisa Brown. Id. In May of 1997, Plaintiff filed another amended EEOC charge, adding subsequent events including the suspension and discharge. Plaintiff's Add'tl Facts, ¶ 75.
Summary Judgment Standard
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted if the designated evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The moving party may meet its burden of demonstrating the absence of a triable issue by demonstrating "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325, 106 S.Ct. 2548, 2552, 2554, 91 L.Ed.2d 265 (1986). The party opposing a well-supported summary judgment motion may not simply rest on the pleadings, but must respond affirmatively with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In deciding a motion for summary judgment, courts construe all facts and draw all reasonable and justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999). If enough evidence exists for a jury to find for the plaintiff on an issue of material fact, the defendant's motion will be denied; but, the "mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to avoid summary judgment. Anderson, 477 U.S. at 252. Neither "the mere existence of some alleged factual dispute between the parties" nor "some metaphysical doubt as to the material facts" will sufficiently establish a triable issue. Forman v. Richmond Police Dep't, 104 F.3d 950, 957 (7th Cir. 1997) (quoting Anderson, 477 U.S. at 247, 252 106 S.Ct. at 1250); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). While we do not apply a heightened standard in employment discrimination cases, we are reminded to approach the summary judgment decision with "added rigor" because credibility and intent are often central issues. Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995) (quoting Courtney v. Biosound, 42 F.3d 414, 418 (7th Cir. 1994)).
Plaintiff's Title VII Discrimination Claims
Plaintiff primary claims are that she was discriminated against when she suffered three adverse employment actions: (1) removal from the Administrative Management Team in September of 1994; (2) demotion and pay cut in March of 1995; and (3) suspension and termination in November and December of 1996. Plaintiff's Ans. Brief at 16, 28.
Untimeliness of Claim Based on Removal from Management Team
The removal of Ms. Manning from the Team is time-barred. Charges of employment discrimination must be filed with the state agency or the EEOC in a timely manner. Failure to do so bars litigation over those claims. 42 U.S.C. § 2000e-5; Enright v. Illinois State Police, 19 F. Supp.2d 884, 886 (N.D.Ill. 1998); Speer v. Rand McNally Co., 123 F.3d 658, 662 (7th Cir. 1997). Plaintiff was removed from the Administrative Management Team in September of 1994. She waited to file her first charge with the EEOC until September 19, 1995, which is well beyond the 300-day limit for timely filing of EEOC charges.
Plaintiff attempts to save her claim using the "continuing violation" theory. This doctrine "allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period." Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). "A continuing violation is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period." Place v. Abbott Laboratories, 215 F.3d 803, 807 (7th Cir. 2000) (quoting Dasgupta v. University of Wis. Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997)). Ms. Manning's situation is quite similar to that in Place, in which the court found that the continuing violation theory did not apply. In Place, the plaintiff was transferred to another job after complaining about sexual harassment. Place, 215 F.3d at 806. The plaintiff retained the same pay, job title and benefits, but the court determined that a "job transfer is a concrete, discrete development" having an "immediately palpable" retaliatory nature, if it was retaliatory at all. Id. at 808.
Here, Manning kept the same job title and pay, but her ability to participate in decision making at the hospital was limited by her removal from the Team in a way that should have been immediately apparent to her. In fact, Plaintiff admits that she felt "isolated" from management after being taken off the Administrative Management Team. Manning Depo. Vol. III at 9. Plaintiff cannot recover for any discrimination she may have experienced when she was removed from the Team.
Manning's Demotion, Suspension and Termination Claims Lack of Direct Evidence
We continue by examining Ms. Manning's case regarding the other adverse employment actions of which she complains. In a case alleging disparate treatment in violation of Title VII, a plaintiff must show that her employer intentionally discriminated against her. See Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). She can establish discriminatory intent by offering direct evidence or indirect evidence. Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). Ms. Manning fails to offer direct evidence of intentional discrimination by the Hospital either in its March 1995 decision to demote her and reduce her pay or in its decision of November and December 1996 to suspend and discharge her. Evidence qualifies as direct when it "in and of itself suggests that the person or persons with the power to hire, fire, promote and demote the plaintiff were animated by an illegal employment criterion." Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997). Obvious examples include statements like "I won't hire you because you're a woman" or "I'm firing you because you're not a Christian." Id. at 973 (citations omitted). Other remarks also constitute direct evidence as long as the comments "were related to the employment decision in question." Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1403 (7th Cir. 1996). Hence, questions about direct evidence often focus on remarks made by key decision makers in the defendant corporation.
Plaintiff puts forth as direct evidence a few comments made by Wayne Obertate, one of the supervisors involved in the decision to suspend and terminate her. In her affidavit, Connie Cook, a former co-worker of Ms. Manning, states that she heard Obertate say "women cannot do anything" and "women will never be smart enough to do the things that men do." Cook Aff. ¶ 12 (emphasis in original). Ms. Manning also testified in her deposition that she heard Miller, who played key roles in both the decision to demote her and cut her pay and also in the decision to suspend and discharge her, "joke" with Obertate about stereotyped roles they considered appropriate for women. Another employee brought a 1950s home economics textbook to an in-service meeting in 1996. Manning Aff. ¶ 23. In reference to an article in the textbook, Obertate and Miller, said, "`This is the way women should be now, waiting on the man,' and so on and so forth." Manning Dep. Vol. II at 133, lines 11-19.
While such remarks reflect poorly on the wisdom, taste, and sense of humor of Mr. Obertate and Mr. Miller, their comments do not permit a direct inference of discriminatory intent in the employment actions they took against Ms. Manning. For such remarks to "qualify as direct evidence of discrimination, the plaintiff must show that the remarks were related to the employment decision[s] in question." Fuka, 82 F.3d at 1403. "To be probative of discrimination, isolated comments must be contemporaneous with the [adverse employment decision] or causally related to the . . . decision making process." Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996) (citations omitted). It is not entirely clear how close in time the comments must be to the employment decision to show that the two are related, but the Seventh Circuit has held that comments made about three months before an adverse employment decision do not satisfy the requirement of contemporaneity. Geier, 99 F.3d at 241 (7th Cir. 1996). Unfortunately, it is also unclear when the comments in this case were made. The record establishes that the comments referring to the 1950s home economics text book were made in 1996, but does not specify which month. Manning Aff. ¶ 23. The year given permits the reasonable inference that the remarks were temporally related to the decision to suspend and terminate Ms. Manning's employment, since these events occurred in November and December of 1996. Under the standard of three months set in Geier, the comments are not temporally linked to Ms. Manning's demotion and pay cut, which occurred in March of 1995. Any comments made in 1996 post-dated her demotion and pay cut by at least nine months. Neither party alleges when Obertate made the comments that Ms. Cook heard. The record allows the inference that they were made sometime before July 25, 1995 because that is the date when Cook left the employ of the Hospital. Cook Aff. ¶ 1. Hence, Obertate's statements that women are not as capable as men may be temporally related to the demotion and pay cut in March of 1995, but not to the suspension and termination in November and December of 1996.
Because the record is unclear as to when Miller and Obertate shared their misguided views about the abilities and proper roles of women, the more fruitful method of analysis, here as in many cases, is to examine whether the comments were causally related to the employment decisions affecting Ms. Manning. See, e.g., Geier, 99 F.3d at 242 (focusing analysis on content of remarks rather than on timing when comments made only three months prior to discharge); Kennedy v. Schoenberg, Fisher Newman, Ltd., 140 F.3d 716, 724 (7th Cir. 1998) (focusing analysis on setting in which remarks were made rather than on timing when comments made five months prior to discharge).
The remarks at issue here closely resemble those in cases in which courts determined there was no direct evidence. In Fuka, 82 F.3d at 1401, the plaintiff in an age discrimination case was fired in January of 1992. She offered as direct evidence of discriminatory intent some negative comments about older job applicants made by the decision makers in late 1991. Id. at 1403. Specifically, the employer stated that he preferred hiring younger applicants because older employees could not be "molded." Id.
The Seventh Circuit did not accept these comments as direct evidence, stating that while the comments may have revealed age bias in hiring decisions, they did not reveal age bias in the termination decision affecting the plaintiff's employment. Id. at 1403-04. While the distinction might seem a bit fine, it is controlling in this jurisdiction, and it is analogous to the situation here. Obertate's and Miller's remarks indicate their general notions about the ability of women (i.e., not as smart as men, belong at home), but they do not tie these biased ideas to any employment decisions, let alone to the types of employment decisions affecting Ms. Manning. Also, the situation here is similar to that in other Seventh Circuit decisions in which the court discounted as direct evidence comments made in "casual conversations." Kennedy, 140 F.3d at 724; Geier, 99 F.3d at 242. Even comments made at work are "casual conversations" not related to the employment decision in question unless they are made during discussions of the plaintiff's work deficiencies. Kennedy, 140 F.3d at 724 (not accepting as direct evidence biased comments made at work); Geier, 99 F.3d at 242 (not accepting as direct evidence biased comments made during work-related car trip).
Miller and Obertate's joking reference to the 1950s home economics article was made during an in-service meeting, but the record gives the Court no reason to infer that the meeting was to discuss the performance problems of Ms. Manning or of any other employee. The record offers no suggestions as to the setting of Obertate's pronouncements. In short, "[r]emarks at work that are based on sex stereotypes do not inevitably prove that gender played a role in a particular employment decision." Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989). The remarks presented in the record do not "in and of [themselves] suggest that the person or persons with the power to hire, fire, promote and demote the plaintiff were animated by an illegal employment criterion," as direct evidence must do. Venters, 123 F.3d at 972.
Indirect Evidence in Ms. Manning's Case
When a plaintiff is unsuccessful in showing discriminatory intent using the direct method, she has other options for meeting this obligation. The burden-shifting method of analyzing indirect evidence, set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is ubiquitous and time-honored. In the past few years, however, courts have taken to heart the Supreme Court's admonishment that "[t]he method suggested in McDonnell Douglas for pursuing this inquiry . . . was never intended to be rigid, mechanized, or ritualistic." Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). In the Seventh Circuit, plaintiffs focused on providing "pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination." Troupe, 20 F.3d at 737. See also Jackson v. Service Eng'g Inc., 96 F. Supp.2d 873, 875 (S.D.Ind. 2000) (using "comments by supervisors, suspicious timing, [and] inconsistent explanations or behavior" to create inference of discrimination).
Perhaps questioning the tradeoff of clarity for intricacy, the Seventh Circuit recently reiterated that while the McDonnell Douglas framework should not be construed in a rigid, mechanized, or ritualistic manner, it remains "a useful organizational structure under which the parties and the court can assess the need for a full trial." Robin, 200 F.3d at 1089-90 (quoting Sattar v. Motorola, Inc., 138 F.3d 1164, 1169 (7th Cir. 1998)).
Because the parties analyzed the facts under McDonnell Douglas and because most of the relevant cases use the same framework, the Court uses this heuristic device to examine the facts presented in Ms. Manning's case.
A plaintiff using this method of proof aims to show that her employer intentionally discriminated "by ruling out other plausible motives for the adverse employment action." Maldonado v. U.S. Bank, 186 F.3d 759, 763 (7th Cir. 1999). Under McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination. If the plaintiff satisfies the elements of the prima facie case, the burden shifts to the defendant to state legitimate, nondiscriminatory reasons for its employment action. Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999). If the defendant meets this burden, the inference of discrimination dissolves, and the burden shifts back to the plaintiff to demonstrate that the employer's proffered reason is actually a pretext. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir. 1997). If the plaintiff can raise a question of fact as to whether the defendant really believed or was motivated by its given reason, the case must proceed to trial. Id. If not, the defendant is entitled to summary judgment. Id.
The elements of a prima facie case of employment discrimination vary slightly around two variables-the basis of the alleged discrimination and the type of harm suffered. See Robin, 200 F.3d at 1090 (age discrimination and disability discrimination); Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 376 (7th Cir. 1998) (race and sex discrimination); Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1262 (7th Cir. 1993) (termination of employment); Mills, 171 F.3d at 454 (failure to promote). Ms. Manning alleges that she was discriminated against on the basis of sex. Two adverse employment actions suffered by Ms. Manning must be examined under this approach: (1) demotion and pay cut in March 1995 and (2) suspension and termination in November and December 1996. Plaintiff's Ans. Brief at 16.
Demotion and Pay Cut
The necessary elements of a prima facie case for Plaintiff's demotion and pay cut are:
1) Plaintiff is female;
2) Plaintiff was performing to her employer's legitimate expectations;
3) Plaintiff was demoted and underwent a pay cut; and
4) Employees not in the protected class were treated more favorably.
Fuka, 82 F.3d at 1404; Mills, 171 F.3d at 454. The parties agree that the first and third elements are met and contest whether the second and fourth elements are satisfied. The Court will not decide whether employees not in the protected class were treated more favorably because the motion for summary judgment can be decided after examining the combined issues of satisfactory performance and pretext.
The parties dispute whether Ms. Manning performed to the legitimate expectations of her employer. MCSI claims that her unsatisfactory performance was the reason that she was demoted from the position of Director of Materials Management. Performance deficiencies can "defeat the second element of the prima facie case and at the same time represent the employer's unrebutted reason for its action." Fuka, 82 F.3d at 1404. For this reason, the Court examines the issues together and finds that Plaintiff failed to establish pretext. See Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998) ("When the defendant has proferred an explanation for termination that the court determines to be non-pretextual, the court may avoid deciding whether the plaintiff has met his prima facie case and instead decide to dismiss the claim because there is no showing of pretext.").
The Hospital alleges that Ms. Manning's performance failed to meet legitimate expectations for a number of reasons, including because there was "[g]eneral disorganization in the department and poor communication," because of "[u]ndue delays by the department in filling special purchase requests," and because the computer program installation for which she was responsible had been delayed." Defendant's Facts, ¶¶ 21, 27-28. Once a defendant has provided evidence of dissatisfaction with a plaintiff's performance, the plaintiff seeking to establish that there is a genuine issue of material fact as to whether she was meeting her employer's legitimate expectations faces a tough standard. In Hong, 993 F.2d at 1262, the Seventh Circuit explained the role of the courts in this inquiry, stating that "[a]s a rule, this court will not sit as a super-personnel department that reexamines an entity's business decisions in cases where discrimination is alleged." (internal quotation omitted). In other words, the employer can make a bad decision, as long as the decision maker honestly believes that the plaintiff has failed to perform satisfactorily.
Defendant marshals performance appraisals of Ms. Manning as evidence that Materials Management was disorganized and suffering from communication problems. In 1994, Ms. Manning was evaluated for her work between December 1, 1992 and December 1, 1993 by Kevin Miller, CEO of the Hospital. Some of the comments on the appraisal are as follows: "Materials Mgmt appears very disorganized"; "More could be done to maintain and build morale of department and vision of organization."; "Relations with other departments could be much better + she should help her employees see other departments as members of teams." Manning Depo. Vol. 1, Ex. 7. The situation did not improve for the appraisal period from December 1, 1993 to December 1, 1994. Remarks on that evaluation, issued in March of 1995, include: "Some Mat. Mgmt. projects have not been completed in timely fashion, ie, computer."; "Has hired some qualified employees, but not always trained them adequately."; "Has a pour [sic] attitude about `Nursing.'" Manning Depo. Vol. 1, Ex. 24.
Plaintiff's efforts to establish that her performance was adequate with respect to organization and communication fail to create a genuine issue of material fact on the issue of whether Ms. Manning performed her job satisfactorily in the opinion of Mr. Miller, the party responsible for her demotion. First, Plaintiff alleges that she was an outstanding employee overall. To support this contention, she argues that:
[h]er work was so good that the Defendant recruited her to return to [the Hospital] and gave her the highest ratings of appraisals for her performance: On August 1, 1991, 47 of 70 points (for materials management); for the period July 1, 1991 to July 1, 1992, 48 of 50 points for the lab, 44 of 50 points for materials management.
Plaintiff' Ans. Brief at 29 (citing Pl. Exs. 22, 23). However, the case law is clear that the "critical issue is whether she was performing well in her job at the time of her [demotion]." Hong, 993 F.2d at 1626 (emphasis added). Ms. Manning may have been a star employee in 1991 and 1992, but her prior performance will not help her case. Plaintiff also submits an affidavit of a co-worker, Connie Cook, to support her assertion that she was satisfactorily fulfilling the duties of Materials Management. Ms. Cook states that "[f]rom my personal observations of Rita Manning and Marc Curtis, I concluded at the time that Rita Manning was clearly better qualified and knew more about running Materials Management than Marc Curtis." Cook Aff. ¶ 3. Such a statement is too general and conclusory "to stave off summary judgment when the employer has identified specific performance deficiencies." Fuka, 82 F.3d at 1405. Plaintiff fails to specifically respond to the concerns identified by Miller. For example, she offers no employee affidavits or other records showing that her employees were not experiencing poor morale or that training met the Hospital's standards.
Ms. Manning does respond directly to two of the reasons cited by Miller for demoting her. She claims that blaming her for delays in the installation of the new computer program and in filling special purchase requests is a pretext to cover up discriminatory motive in the decision to demote her. Miller documented his complaint about the delay in installing the computer program in the March 1995 review of Plaintiff. Manning Depo. Vol. I, Ex. 24, and the facts section of the entry explains that the record contains documents showing delays for this project.
Plaintiff now alleges that she was not responsible for the installation of the computer program, stating "[p]laintiff was not installing the program but only reporting, when asked, what the vendor reported about its progress." Plaintiff's Resp. to Defendant's Facts, ¶¶ 21, 25. Plaintiff fails to supply any evidence that the installation was not her responsibility or, more importantly for the question of pretext, that Miller did not believe it to be her responsibility. Her denial cites to two items of evidence that do not support the denial. One item is a conclusory statement in her affidavit that "Ransdell Surgical, Inc. installed a computer program, RSVP, and worked with Materials Management staff in stages to input vast amounts of data and train them on its use." Manning Aff., ¶ 10. While Ransdell may have done the actual work of the installation, this evidence alone does not permit the reasonable inference that Ms. Manning's duties did not include the responsibility of working to ensure that Ransdell adhered as closely as possible to a reasonable timetable. In fact, the second item cited to support Plaintiff's denial actually indicates that Ms. Manning realized that her duties included facilitating the timely installation of the computer program. She cites a letter from Ms. Manning to Miller, dated March 20, 1995, in which she acknowledges that "[w]e again were trying to get the program up and running as soon as possible and we had to coordinate the counting day with the computer people at Ransdell . . ." Pl. Ex. 1, ¶ 3 (emphasis added). The letter indicates that "we" took responsibility for the implementation of the computer program. The letter is not clear as to whom "we" refers, but as the first person personal pronoun, Ms. Manning is included as one of its referents since she is the author of the letter.
Plaintiff also fails to raise a genuine issue of material fact as to whether she met the Hospital's legitimate expectations for the timely filling of special purchase requests. In his deposition, Miller asserts "issues with regard to follow through on purchases of items in some cases, getting supplies ordered that were requested" as specific ways in which Ms. Manning's performance was deficient. Miller Depo. at 50. Plaintiff admits that there were delays in filling special purchase requests but claims that Miller unfairly blamed her for them. Manning Aff. ¶ 18. As an initial comment, the Seventh Circuit takes a dim view of attempts to shift blame as a means of establishing pretext. See Schultz v. General Electric Capital Corp., 37 F.3d 329, 334 (7th Cir. 1994). The real problem, however, is that Ms. Manning's affidavit refers to attachments to her April 6, 1995 grievance to Tom McNaull, Miller's supervisor. These attachments supposedly consist of nineteen sample orders establishing that the delay in processing these orders occurred in Miller's office, since he had to sign off on special purchase orders. Manning Aff. ¶ 18. Even assuming that these sample orders would be enough to establish a genuine issue of material fact about whether the numerous reasons given by the Hospital for demoting Ms. Manning were pretextual, the Court cannot rely on them because they are missing from the record. Her grievance to McNaull is included as part of the record as Manning Depo. Vol. 1, Ex. 25, but the sample orders are not attached.
With regard to her demotion and pay cut, Ms. Manning fails to present evidence allowing the reasonable inference that she was performing her job to her employer's legitimate expectations and that Defendant's claims of unsatisfactory performance were pretextual. Therefore, the Court must grant summary judgment to Defendant on Plaintiff's claim that her demotion and pay cut in 1995 were the result of unlawful sex discrimination.
Suspension and Discharge
Plaintiff fares no better in making out a case of discriminatory motive for her suspension and discharge in November and December of 1996. The necessary elements of her prima facie case are:
1) Plaintiff is female;
2) Plaintiff was performing to her employer's legitimate expectations;
3) Plaintiff was suspended and discharged;
4) Employees not in the protected class were treated more favorably.
Fuka, 82 F.3d at 1404; Mills, 171 F.3d at 454. As with the prima facie case concerning her demotion and pay cut, the parties agree that the first and third elements are met. Likewise, they contest whether the second and fourth elements are satisfied.
Again, the Court need not decide whether Ms. Manning was able to make a prima facie case of discrimination because Plaintiff is unable to show that the Hospital's proferred reasons for suspending and discharging her were pretextual. See Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998) ("When the defendant has proferred an explanation for termination that the court determines to be non-pretextual, the court may avoid deciding whether the plaintiff has met his prima facie case and instead decide to dismiss the claim because there is no showing of pretext.").
The Hospital offers multiple reasons related to poor performance for suspending Ms. Manning. In Ghosh v. Indiana Dep't of Environmental Management, 192 F.3d 1087, 1091-92 (7th Cir. 1999), the Seventh Circuit set forth a difficult standard for a plaintiff seeking to show pretext in order to avoid summary judgment. Ms. Manning must show that "all of the proferred reasons are pretextual." Id. (emphasis added). The court in Ghosh looked at each one of the employer's negative comments evaluating Ghosh's application for a promotion and examined whether Ghosh had raised a genuine issue of material fact as to whether each reason was "either [a] lie or completely lacking in factual basis." Id. at 1091 (citing Mills, 171 F.3d at 458). The Court follows the same process in examining the facts before it.
In the summer of 1996, Ms. Manning was disciplined for failing to attend a sports physical that was mandatory for all management employees. Manning Depo. Vol. II at 150, Ex. 40. A "Counseling/Corrective Action Form" dated August 20, 1996 and signed by Ms. Manning notes that "suspension" and "possible termination" are the "[a]nticipated action if act continues." Id. Defendant cites her non-participation in a sports physical as a reason why Ms. Manning was not meeting the legitimate expectations of Miller and Obertate.
Defendant's Memo. at 27. Plaintiff attempts to show that this proferred reason is actually pretext for discrimination based on sex by pointing out that she worked at another health fair on the Hospital's behalf which she regarded as satisfying MCSI's goal that management perform community service. Plaintiff's Facts, ¶¶ 43-44. Plaintiff's evidence that she performed other community service does not show that the Hospital's dissatisfaction with her performance for failing to attend a sports physical is pretext because nothing about her allegation leads to the reasonable inference that MCSI was not honest in its expectation that management employees work a sports physical. While a court may think that certain duties in an employees' job description are nonessential, it is up to the employer to set business priorities as long as they do so honestly. See Ghosh, 192 F.3d at 1093 ("Criticism of an employer's evaluation process, even if well-founded, is not enough to establish pretext.") (citing Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997)). Manning does not allege that she was told that any community service could substitute for working a sports physical, and she does acknowledge that another employee, Anne Mills, was disciplined for failing to attend a sports physical. Plaintiff's Facts, ¶ 46.
Mr. Obertate cites, as his main reason for deciding to suspend Ms. Manning, a concern that the laboratory "was in real trouble" and suffering from serious morale problems. Obertate Depo. at 121. Obertate states that the events of November 19, 1996 led him to worry about the situation in Ms. Manning's department. On that date, he met with Marvin King and other laboratory employees who had questions about pay increases. The employees also complained about management and communication in the department.
Plaintiff, in an effort to raise a genuine issue of material fact as to whether Obertate is honest in his assessment that important problems existed in Ms. Manning's department or as to whether that assessment was the Defendant's real reason for suspending her, points to the affidavit of Marvin King. King is the lab employee who initiated contact with Obertate about pay raises. In his affidavit, he affirms that "Mr. Obertate came to the Lab that same day [November 19, 1996] and met with me about my salary questions; he also spoke with some other Lab staff while he was there; I do not recall anyone saying anything to him on that occasion that was a complaint against Rita Manning." King Aff. King adds that he "did not tell Obertate that Rita had not tell [sic] me how the 3.5 percent average merit increases worked." Id.
While Mr. King's account in his affidavit does raise the possibility that Obertate overreacted to the concerns raised during this meeting, it does not raise a genuine issue of material fact as to whether Mr. Obertate honestly perceived problems in the department, regardless of whether they were the fault of Ms. Manning, and believed that an investigation of the problems was required. King affirms that no one complained about Ms. Manning at the meeting with Obertate; he does not claim that no one complained about the department in general. As director of the laboratory, any complaints about the department would implicate Ms. Manning's job performance. There is no reason to question that Obertate honestly decided on the basis of the meeting that an investigation was necessary and that the head of the department should be the main focus of inquiry. Plaintiff cannot show that failure to attend a sports physical and concerns about the laboratory were pretextual reasons for suspending her.
Plaintiff similarly cannot show that Defendant's proferred reasons for discharging her were pretext for sex discrimination. The Hospital cites numerous ways in which Ms. Manning was not meeting her employer's legitimate expectations. Manning certainly does raise a genuine issue of material fact with regard to the sincerity of some of the examples of poor performance given by Defendant. For instance, Defendant states that from the investigation, the Hospital learned that Ms. Manning sometimes referred to Miller as "short shit" when conversing with her employees. Mullins' Aff., Ex. 3; Mullins' Aff., Ex. 4.
While it is perfectly understandable that a reasonable supervisor sincerely may want to rid himself of managers who indicate such disrespect for him to employees, Plaintiff shows that Defendant was not honest when it cited this fault as a reason for discharging her. Marc Curtis testified that he often made jokes to Miller about the latter's height and that Miller was aware that hospital staff often called him "short shit." Curtis Depo. at 85-86. Mr. Curtis was not fired for such remarks. He was not fired until hospital management learned that Curtis had been involved in the fraudulent scam of a Louisville hospital. Def.'s Reply to Pl.'s Addt'l Facts, ¶ 123. In fact, Miller states that he had no "qualms about Marc Curtis" prior to receiving information about the criminal proceedings. Miller Depo. at 109.
However, Ms. Manning's "failure to address [even] one of the [the] proferred reasons is fatal to [her] claim." Ghosh, 192 F.3d at 1092. Under Seventh Circuit case law, Plaintiff must show that all of the proferred reasons are pretextual, Mills, 171 F.3d at 459 (citation omitted), which she cannot do. Mr. Obertate explained that she was discharged, in part, for failing to maintain an adequate supply of some critical supplies, in particular butterfly needles. Obertate Depo. at 194. Ms. Manning admits that butterfly needles were sometimes in short supply. Plaintiff's Facts, ¶ 65. In a meeting with Obertate and Donna Mullins, Director of Human Resources, Ms. Manning asserted that she had not been notified that they were running low on butterfly needles and that her staff "overused" them, given the expense of this supply. Obertate Depo., Ex. 58. Because Plaintiff was director of the laboratory, while the Court could find that Obertate may have been exercising poor business judgment in expecting Ms. Manning either to order more butterfly needles or to better monitor staff use of this supply, the Court cannot say that Obertate was dishonest in his assertion that it was his expectation that she do so. See Jordan v. Summers, 205 F.3d 337, 345 (7th Cir. 2000) (upholding summary judgment when plaintiff failed to produce evidence from which court could infer that employer's proferred reasons for adverse employment action was a lie or had no basis in fact).
Furthermore, Miller and Mullins agreed to Obertate's recommendation that she be fired on the basis of additional information about Ms. Manning's conduct gathered during the interviews of lab employees. Miller Depo. at 131; Mullins Depo. at 21-22. Two employees were very unhappy with the way they felt they had been treated by Plaintiff.
When asked about morale in the department, Cheryl Bundy replied that there was "[v]irtually no praise in the department." Mullins Aff., Ex. 1. Another employee, Laura Crain, stated that "[a] lot of "little" things would upset her + she would fly off the handle at employees." Mullins Aff., Ex. 3. Certainly, the employee comments were not uniformly bad. Robin Dickey opined that "I think Rita is one of the managers I have worked most easily with." Mullins Aff., Ex. 4. However, even if it had been foolish for the decision makers to rely on Bundy's and Crain's comments over those of Dickey, Plaintiff has offered no evidence that they were not honest in their reliance on Bundy's and Crain's assessment of problems in the department. Jordan, 205 F.3d at 343 (finding that mistaken, ill-considered or foolish reasons for an adverse employment action do not rise to the level of pretext without showing of dishonesty).
ADEA and Title VII Retaliation Claims
Retaliating against an employee for opposing discriminatory employment practices is unlawful under both Title VII and the Age Discrimination in Employment Act ("ADEA"). 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any of its employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge . . . under this subchapter."); 29 U.S.C. § 623 (d) ("It shall be unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section or . . . has made a charge . . . under this chapter."). A plaintiff establishes a prima facie case of retaliation when she shows that "(1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action." Rennie v. Dalton, 3 F.3d 1100, 1109 (7th Cir. 1993). A plaintiff need not show that the challenged practice actually violated anti-discrimination law in order to come under the protection of the anti-retaliation provisions of Title VII and the ADEA. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir. 1989). Ms. Manning clearly believed that the practices to which she objected violated Title VII and the ADEA, which is sufficient under Seventh Circuit precedent. Id. Once a prima facie case is made out, burden-shifting proceeds as usual under McDonnell Douglas. Jennings v. Tinley Park Community Consol. Sch. Dist. No. 146, 864 F.2d 1368, 1371-72 (7th Cir. 1988).
Manning argues that almost everything occurring at work after she filed her first charge of discrimination on September 19, 1995 was retaliation. Plaintiff's Ans. Brief at 6-12. The facts alleged do not support Plaintiff's contention. The first employment actions about which Manning complains are her evaluation and raise in January of 1996.
Plaintiff admits that she received "an overall satisfactory rating" at that time. Plaintiff's Ans. Brief at 7. Also, as noted in the facts section of this entry, Manning's raise was higher than the raise she had received earlier from Miller. Based on these facts, Manning fails to create a genuine issue of material fact regarding the second element necessary to a prima facie case of retaliation.
The next set of actions that Plaintiff maintains are retaliatory consist of (1) Miller's solicitation of written complaints from AnnMarie Merta of Medical Tower Laboratories ("MTL"); (2) the appointment of Obertate, rather than Plaintiff, to the newly-created position of Administrative Director of Professional Services; and (3) the reprimand Manning received for failing to attend a sports physical. Assuming that these events were adverse employment actions under the law, Plaintiff fails to establish a prima facie case of retaliation because she cannot show a causal link between the filing of the charge and these actions. Plaintiff suggests that the "telling temporal sequence" in her case satisfies the nexus requirement. Plaintiff's Ans. Brief at 27. Plaintiff correctly states the law-a temporal sequence can establish the necessary causal link. Holland, 883 F.2d at 1315.
However, the simple fact that these events occurred after, rather than before, she filed her EEOC charge does not establish the connection. Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998). The employer's adverse employment actions must occur fairly soon after the employee's protected activity. Id. These events all occurred in June or July of 1996, more than eight months after she filed her charge with the EEOC. The time lag is too long to establish the link, see id. (five months); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1991) (four months); Salvato v. Illinois Dep't of Human Rights, 155 F.3d 922, 925 (7th Cir. 1998) (six months), and Plaintiff fails to allege any additional proof of a causal nexus.
The next adverse employment action suffered by Ms. Manning was her suspension on November 20, 1996. Plaintiff fails to create a genuine issue of material fact as to whether her suspension was retaliation for filing an amended EEOC charge. As explained in the facts section of the entry, Plaintiff can point to no evidence establishing that Obertate or Mullins was aware of the amended charge until November 22, 1996, two days after they made the decision to suspend Manning.
Only one adverse employment action, the termination of Ms. Manning's employment, remains as a possible example of retaliation. A prima facie case is established. Manning filed an amendment to her earlier EEOC charge, which is an act protected by the anti-discrimination statutes. Termination is clearly an adverse employment action. The temporal sequence is telling. On December 2, 1996, less than two weeks after learning that Manning had filed an amended charge, the Hospital informed Manning through her counsel that she must resign or her employment would be terminated.
However, as explained in the discussion of whether MCSI's reasons for firing her were pretext for sex discrimination, Ms. Manning cannot raise a genuine issue of material fact that these same reasons were pretext for retaliation. The investigation of the department during Ms. Manning's suspension revealed many problems in laboratory services. Even if the decision makers may have been misguided in their belief that these problems were the fault of Manning, there is no evidence to show that they were dishonest in their decision to fire her.
Conclusion
Defendant's Motion for Summary Judgment is GRANTED. In addition, Defendant's Motion to Strike Plaintiff's Surreply is GRANTED in part and DENIED in part.
It is so ORDERED this day of September 2000.