Opinion
No. 4:00cv0070 AS.
March 28, 2002.
MEMORANDUM AND ORDER
This matter is before the court on Defendant Security Federal Savings Bank's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Plaintiff Sharon Strasser has also moved for partial summary judgment with respect to her retaliation claim and has responded to Security Federal Savings Bank's motion for summary judgment with respect to her remaining claims. The matter is now fully briefed and for the following reasons the Defendant's motion for summary judgment is now DENIED and the Plaintiff's motion for partial summary judgment is now DENIED.
I. BACKGROUND
Strasser had a long and apparently successful career with Security Federal Savings Bank ("SFSB") up until the spring of 1998. Strasser had advanced through the ranks at SFSB culminating with her appointment as Vice President/Cashier/Secretary. It was at this point in time that Strasser began to have problems with SFSB's president Richard Cassidy. Strasser contends that her problems stemmed from that fact that she was an older female and that Cassidy held a discriminatory animus toward individuals with that gender and age makeup. Further, Strasser contends that because of this animus, Cassidy wanted to replace her with a younger employee, Theresa Woodruff. Alternatively, Cassidy and SFSB contend that it was Strasser's work performance that resulted in her problems and ended with her termination.
In April 1998 Strasser was informed by Cassidy that she was being transferred from her personnel officer position to an administrative assistant position within SFSB. The parties are in dispute as to whether this move was a demotion, promotion or lateral move for Strasser.
SFSB contends that this move was a lateral move made because Strasser was not performing the personnel officer position to the level needed. (See Cassidy Dep. pp 120-122). SFSB cites to problems involving the hiring procedures and ongoing errors Strasser made calculating the pay for part time employees who had complained to her for several months. (See Theresa Woodruff Deposition pp. 20-24). Cassidy also testified that employees were not comfortable with Strasser, but was not able to name any of the employees who allegedly expressed dissatisfaction to him. (Cassidy Dep. p. 120). Furthermore, Cassidy stated that he was "not sure that [he] really thought" that Woodruff would do a better job as personnel officer than Strasser at that position. (Id. p. 128).
Strasser contends that Cassidy viewed this move as a promotion. (See Strasser Declaration at ¶ 34). Moreover, Strasser testified that Cassidy did not tell her that the change was made because of her performance. (Strasser Dep. p. 257). However, Strasser viewed this transfer as another attempt by Cassidy to force older female employees out of their various positions with SFSB in the hope that she would ultimately quit her job with SFSB. Strasser testified that Cassidy had told her that her transfer was made because he needed to delegate some of his duties as president to her. (Strasser Dep. p. 100). Cassidy admitted that after the reassignment he did not treat her like an administrative assistant and no one replaced her in the administrative assistant position once she was reassigned to the New Accounts department. (Cassidy Dep. p. 140).
Strasser has proffered evidence that Cassidy has transferred older female employees, based solely on those criteria and not based upon their performance, out of SFSB in the past. Strasser contends that Cassidy attempted and succeeded to force out or demote other older female employees based upon their age and sex and not their performance at SFSB. Strasser alleges that two employees, Scherich and Cain, received satisfactory or above performance ratings and yet Cassidy undertook actions to remove them from their supervisory positions at the bank and force them to retire. (Strasser Declaration at ¶¶ 7, 8,19, 24). Strasser stated that Cassidy even asked Strasser to change an evaluation that she had done of Cain in order to make it more negative. (Strasser Decl. at ¶ 24). Strasser has also introduced other evidence of Cassidy's animus toward female employees who don't "look the part." (Strasser at ¶¶ 14, 15). She alleges that with respect to each of these employees Cassidy has consistently sought to force them to resign by giving them negative evaluations, removing them from their supervisory positions, cutting their salary or refusing to give them a raise, or in some cases terminating them without justification.
In September 1998 Cassidy issued a negative review of Strasser. That review criticized Strasser for the following: 1) irregular attendance; 2)working her own schedule rather than the bank's; 3) rushed, sloppy, and careless work; 4) failure to proofread; 5) poor attitude and example; 6) failure to complete assignments, in particular, not updating the policy manual and distributing it to the bank officers; and 7) the recurring problem of paying attention to personal matters rather than her job. (Strasser Dep. Ex. Q). At this point Cassidy placed Strasser on 90 days probation.
Strasser immediately issued a response letter challenging the review issued by Cassidy. (Strasser Dep. Ex. S). In her response, Strasser stated that she believed she was properly performing the bank polices project. (Id.). Furthermore, she denied that she left early any more frequently than any of the other officers. (Id.). These events culminated with the filing of charges with the Equal Employment Opportunity Commission in October 1998 by Strasser.
Strasser alleged that SFSB had discriminated against her on the basis of her gender and age. Strasser also made a claim for retaliation. In early 1999, Strasser and SFSB reached a two party settlement agreement with respect to her EEOC charges. The parties agreed that in exchange for a transfer to vice president of the New Accounts department, Strasser would withdraw her charges of discrimination. As part of the transfer Richard Cassidy would no longer be Strasser's direct supervisor, rather Jim Hendricks the senior vice president of New Accounts would assume that role. According to Strasser, as part of that agreement, SFSB also agreed that her prior negative evaluations would not serve as a basis for evaluation in her new position. (See Strasser Decl. at ¶ 44; Exhibit 19).
Strasser's performance in her new position began without problems. On March 1, 1999, Hendricks determined that her performance up to that time was "satisfactory." (Cassidy Dep. 161; ll 1-19). However, SFSB cites to several instances that Strasser was not performing satisfactorily in her new position. SFSB contends that Strasser was not "pulling her weight" in opening new accounts with the bank as compared to other employees in that division. (Woodruff Dep. pp. 34-36). Furthermore, SFSB cites to the fact that Strasser on several occasions exhibited inappropriate behavior, in the presence of co-workers, to her supervisor and a bank customer.
For example, SFSB alleges that Strasser demonstrated poor judgment and acted inappropriately in dealing with a bank customer on one occasion. In May 1999, a SFSB customer called the bank to address an encoding error on his account. Apparently, the customer became irate and abusive with Strasser. Thereafter, Strasser proceeded to tell the customer that she had to go and hung up the phone. (Strasser ¶ 52). According to Strasser, she immediately reported the situation to Hendricks who exhibited no concern and told her that he did not expect his employees to be subjected to that type of abuse. (Id. at ¶ 53). SFSB contends that not only did Strasser hang up on a valued customer but that she then proceeded to boast to her subordinate, Diane Hunt, that she was glad she had done so. Strasser admits that she could have handled the situation differently but denies that she was happy she hung up on the customer. (Strasser Dep. p. 126; l.l. 1-16).
The events leading up to Strasser's termination culminated in late May 1999. Cassidy discovered that SFSB had been cashing Social Security checks for a customer that had been dead for a year. Apparently, the bank had erroneously relied upon a power of attorney that gave the customer's granddaughter the right to cash the checks. After being informed by the Social Security Administration that SFSB would be responsible for paying out on the checks, Cassidy proceeded to search for the power of attorney but was unable to locate it. Cassidy discovered that two New Accounts employees, Mary Lou Cain and Hunt, had erroneously shredded the document. (Cassidy Dep. p. 166 l.l.1-9).
Cassidy became justifiably upset at these turn of events and issued a memorandum to Hendricks noting his displeasure. Specifically, Cassidy wrote that Cain had shredded the document and other similar powers of attorney on Hunt's orders and that SFSB would have to explain "how it is that we were so damned brain dead" to have shredded the document. (Cassidy Dep. Ex. 18). The memo went on to state that, "This whole thing is very unsettling. Was Sharon consulted? What the heck is going on in New Accounts? I have heard from more than one person that we are having one screw up after another. Please at least tell those girls to stay away from the shredder!!!" (Emphasis Added) (Exhibit 22).
The actual word used by Cassidy in the memo is in dispute.
According to Cassidy this memo was not directed at Strasser nor was it, in his opinion, blaming her for the incident. (Cassidy Dep. p. 171; l.13) Cassidy testified that, "Sharon Strasser was not the target of that memo" and he "assume[d] [Strasser] wasn't even consulted because she would have known better." (Cassidy Dep. p. 185; l.4).
Alternatively, Strasser contends that this memo was in fact directed at her. Strasser considered the memo to be another attempt by Cassidy to criticize her and get rid of her. Strasser averred that she believed that Cassidy's references to "screw ups" in the New Accounts department was another unwarranted attack upon her because she was the vice president in charge of that department. (Strasser Decl. at ¶ 59). Strasser was also upset because of the offensive language used by Cassidy in the memo which she interpreted as referring to her and the other female employees in the New Accounts department. (Strasser Decl. at ¶ 60). Strasser testified during her deposition that Hendricks repeatedly told her that Cassidy was angry with her and that she better be careful. (Strasser Dep. p. 242).
The actual word used by Cassidy in the memo is uncertain. According to Strasser, Hendricks used "white out" to cover the term because he believed it to be too offensive for Strasser and the other female employees in New Accounts to see. (Strasser Decl. at ¶ 58).
On Friday May 21, 1999, Strasser, Cain and Hunt met with Hendricks concerning the memo issued by Cassidy as a result of the shredding incident. At that meeting, Strasser, Cain and Hunt expressed to Hendricks that Cassidy was not being fair to the New Accounts department. (Strasser Declaration at ¶ 63). Hendricks admitted that more than one of them protested the use of the offensive term that had to be removed with white out by him. (Hendricks Dep. p. 67). During that meeting, Strasser expressed to Hendricks that Cassidy was really after her and that he should leave the other two women alone. (Strasser Decl. at ¶ 63). Hendricks testified that he assured Strasser that the memo was not to pick on her but rather an attempt to address the concern of shredding important documents. (Hendricks Dep. pp. 61-62). Hendricks, Hunt and Cain all testified that Strasser threatened to sue SFSB and Cassidy at that time. (Hendricks Dep.at pp. 63, 67; Hunt Dep. p. 28-29; Cain Deposition at p. 45). Strasser offers a somewhat different version of what she said during that very same meeting as will be discussed in more depth below.
Hendricks then reported these events to Cassidy and stated that he "could not get very far" with respect to the shredding incident. (Hendricks Dep. p. 63). Cassidy instructed Hendricks to have Strasser come to his office to discuss the memo and that his office would be open the rest of the day. (Hendricks Dep. p. 63). SFSB contends that Strasser refused to go and talk with Cassidy about the events.
At this point, the actual events vary dependent upon whose side of the story one is to believe. Strasser denies that Hendricks ever asked her to go to Cassidy's office. (Strasser Decl. at ¶ 65). Apparently Strasser believed that she would receive a reprimand for the events that transpired during the meeting with Hendricks, Hunt and Cain. (Woodruff Aff. at ¶ 11). Strasser later testified during her deposition that she did not remember talking to Hendricks after the meeting. (Strasser Dep. pp. 135-36). The facts are also unclear concerning whether Strasser stated that "I am not going to go talk to Dick Cassidy. You can tell him to go fuck himself." (Cain Dep. p. 51). Although Cain testified that Strasser made these comments, Hendricks did not testify that such a comment was made in response to his request to Strasser that Cassidy wanted to see her. (Hendricks Dep. p. 65).
On May 24, 1999, Strasser was asked to attend a meeting with Cassidy and Hendricks. (Strasser Declaration at ¶ 66). At that time Strasser was provided with a memo by Cassidy providing that she could either resign or be fired. (Id.). The memo provided three separate incidents upon which formed the basis for the memo: 1) an insurance file incident involving Teresa Woodruff; 2) incident where Strasser hung up the phone on a bank customer; and 3) confronting Hendricks in front of subordinates during the shredding meeting in addition to other prior problems. (Cassidy Dep. p. 184). However, during his deposition, Cassidy testified that the reason that Strasser was terminated was because of the incident involving the meeting with Hendricks over the shredding. (Cassidy Dep. p. 183). Cassidy stated that he wanted Strasser to come to his office and discuss the meeting with him. However, Cassidy determined that she had to be terminated because she refused to come to him and arrange an apology to those involved in the meeting. Strasser refused to resign and was subsequently terminated by Cassidy.
Thereafter, on November 3, 1999, Strasser filed a second EEOC charge alleging sex and age discrimination, and retaliation. On August 1, 2000, the EEOC issued a notice of right to sue. Strasser subsequently filed her complaint with this court on October 25, 2000.
II. STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under the applicable standard a district court will not weight the evidence but merely determine if "there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court must determine whether "there are genuine factual issues that can properly be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson at 250. "In assessing whether a genuine issue of material fact exists, [the district court] must construe all facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Hilt-Dyson v. City Of Chicago, ___ F.3d ___, No. 01-2095, 2002 WL 272774 (7th Cir. Feb 27, 2002) citing Anderson at 255.
The burden of establishing a lack of any genuine issue of material fact rests on the movants. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovants, however, must make a showing sufficient to establish any essential element for which they will bear the burden of proof at trial. Celotex, 477 U.S. at 322; Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997).
A. Defendant's Motion to Strike or Disregard
The court takes this opportunity to address SFSB's motion to strike or disregard certain portions of exhibits to Strasser's memorandum in support of her partial motion for summary judgment and in opposition to SFSB's motion for summary judgment. Rule 56(e) provides that affidavits offered in opposition to a motion for summary judgment must "be made on personal knowledge, . . . setting forth such facts as would be admissible in evidence, and . . . showing affirmatively that the affiant is competent to testify to the matter stated therein." Drake v. Minnesota Min Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998).
SFSB argues that numerous statements made in Strasser's Declaration are either conclusory or made without her personal knowledge. Furthermore, SFSB contends that numerous statements made in Jacqueline Keener's Declaration are also conclusory and without personal knowledge. A careful review of the statements made by Strasser and Keener indicate that while opinions and inferences are made by both individuals in their declarations, those opinions and inferences drawn are supported by specific facts. Drake at 887; ("Personal knowledge" may include inferences and opinions that are substantiated by specific facts.) However, to the extent that the statements are wholly conclusory or without any personal knowledge, those statements will be disregarded. Therefore, the Defendant's motion to strike is now DENIED.
III. DISCUSSION
Strasser has made discrimination claims based upon her age and gender as well as two distinct retaliation claims based upon her exercise of the statutory guarantees provided under Title VII and the ADEA for engaging in certain protected activities. Initially, the court notes that any activity prior to January 1999 may not form the basis of any claim for retaliation or age and gender discrimination. While the court will attempt to address each claim individually, the nature of her discrimination and retaliation claims requires the court to address certain prior claims to give context to her alleged protected status and activity. Therefore, the court will only address those discrete claims arising out of and reasonably related to Strasser's EEOC charge filed in November 1999.
As previously noted Strasser's 1998 EEOC charge was resolved after she entered into an agreement with SFSB and was transferred to her new position as vice president of New Accounts. Furthermore, any activity prior to January 1999 would fall outside of the 300 day time period. See 42 U.S.C. § 2000e-5(e)(1).
A. Scope of Strasser's EEOC Charge
SFSB begins with the argument that Strasser has waived her claim of retaliation under the opposition clause arising from her alleged protected activity during the May 1999 meeting which in turn she alleges resulted in her termination. Generally, a Title VII plaintiff may not bring claims in a lawsuit that were not originally presented to the EEOC. Harper v. Godfrey Co., 45 F.3d 143, 147-48. However, a plaintiff may assert a claim in her complaint that she did not include in her EEOC charge if she can satisfy a two-prong test: (1) the claim must be "like or reasonably related to" her EEOC charge, and (2) the claim must be one that would "reasonably develop from an EEOC investigation into the original charge." Harper, 45 F.3d at 148; See also Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). A further caveat to the general rule provides that a separate administrative charge or claim is not a prerequisite to a suit on the basis of retaliation for filing a previous charge of discrimination under Title VII. Malhotra v. Cotter Co., 885 F.2d 1305, 1312 (7th Cir. 1989).
SFSB contends that Strasser's opposition claim of retaliation was a discrete event occurring at a definite time. However, SFSB attempts to read the claims and charges made by Strasser in her EEOC submission too narrowly. In Conley v. Village of Bedford Park, 215 F.3d 703, 710 (7th Cir. 2000), a case relied primarily on by SFSB, the EEOC charge set forth various alleged discriminatory employment actions — unpleasant job assignments, lack of overtime and failure to promote; however it does not mention the suspension. (Emphasis Added). The court determined that the suspension was a discrete action, taken at a definite time, in response to the plaintiff's alleged failure to report for work in a timely manner. Id. at 710. The Seventh Circuit also noted that Conley had failed to raise the suspension either in the EEOC charge or amended complaint, but rather raised it for the first time in his response to the defendant's summary judgment motion. Id. at 710.
The EEOC charge sets forth claims for retaliation, gender discrimination, and age discrimination. (See Amend. Complaint; Exhibit A). More specifically, the charge provides that she believed that her termination in May 1999 was in retaliation for filing a prior charge of discrimination against the bank. (Id.). Strasser goes on to state that, "Once I began my duties in my new position, Mr. Cassidy began retaliating against me." (Id.). Although, Strasser does not specifically detail the events of her opposition to the alleged ongoing retaliatory events that culminated with the May 1999 meeting in her EEOC charge, those charges are reasonably related to her prior protestations against SFSB and Cassidy and her allegation of retaliation in the EEOC was sufficient to put them on notice as to the possibility of such a claim. Additionally, Strasser specifically identified in her amended complaint her charge of retaliation to include being terminated for having complained about SFSB's discriminatory practices. (See Amend. Compl. at ¶ 23). Therefore, SFSB cannot now argue that it was not provided with advance notice as to her claims of retaliation for opposing certain alleged discriminatory practices by SFSB. See Conley, 215 F.3d at 710.
Beginning with her first EEOC charge in 1998, Strasser has insisted that SFSB and Cassidy, in particular, engaged in a discriminatory campaign against older females at the bank. In the November 1999 EEOC charge, she expanded her claims to include retaliation for her filing the 1998 EEOC charge. She specifically identified the filing of the prior charge as one instance of retaliation. Her opposition claim spawned from all the prior alleged discriminatory events and cannot now be said to not be reasonably related to the charges made to the EEOC. Furthermore, these latest events, which are identified in the amended complaint, could have reasonably been discovered during the ensuing EEOC investigation. Therefore, the court finds that Strasser has not waived her retaliation claim with respect to her opposition of the alleged retaliatory activities by Cassidy.
The actual statements made by Strasser during the meeting in which she is alleged to have made the protected statements under Title VII are in serious factual dispute. However, at least one of the employees testified that Strasser stated something to the effect that, "Well I just remember Sharon saying that, you know, that Dick Cassidy was after her and that she was going to sue." (Cain Deposition at p. 45).
B. Gender and Age Discrimination
Congress has provided that an employer may not "discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, gender, or national origin." See 42 U.S.C. § 2000e-2(a)(1). Furthermore, Congress prohibits an employer from, ". . . discharg[ing] any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . ." See 29 U.S.C. § 623(a)(1). In order for Strasser to succeed on her discrimination claims she must demonstrate that her age and gender "actually played a role in [the employer's decision-making] process and had a determinative influence on" the termination in May of 1999. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000) citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).
A complainant can prove a violation of either statute through the use of either direct or circumstantial evidence. See Patton v. Indianapolis Public School Bd., 276 F.3d 334, 338 (7th Cir. 2002) (Title VII race and gender claim); Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 393 (7th Cir. 1998) (ADEA claim).
Strasser first attempts to establish her gender and age discrimination claims with various evidence to show that she was taken out of her personnel officer position for a younger female employee. Strasser contends that from this evidence a reasonable jury could conclude that the position she was transferred to was a ruse to move her out of the former personal officer position so that it could be awarded to the younger female employee. Even assuming that Strasser could prove her initial prima facie case under the McDonnell Douglas standard, which she has failed to address, or through the direct evidence method; thApril 1, 2002 these actions all occurred prior to the settlement agreement and therefore cannot be the basis for any recoverable claim for discrimination here.
Next, Strasser claims that Cassidy engaged in the following adverse employment actions because of her status in the protected class: 1) he kept Strasser under frequent surveillance even though he was no longer her direct supervisor; 2) he conveyed repeated criticism to her through Hendricks; and 3) he issued written memoranda that were inaccurate and critical of her work. However, these events do not constitute adverse employment actions.
Finally, Strasser contends that her termination in May of 1999 was the culmination of a discriminatory campaign by Cassidy that began in 1998. Strasser comes forward with a wide range of evidence that she contends supports her claims. As noted in Troupe v. May Dept. Stores Co., 20 F.3d 734, 736-37 (7th Cir. 1994), a plaintiff must produce "evidence from which a rational trier of fact could reasonably infer that the defendant had fired the plaintiff because the latter was a member of a protected class . . ." Strasser pursues her claims for gender and age discrimination apparently under the direct method and not the indirect method requiring the burden shifting approach under McDonnell-Douglas. SFSB contends that Strasser must utilize the indirect method because she has failed to come forward with any evidence that, if believed by the trier of the fact, does not require reliance upon any inferences or presumptions. (See D's Brief in Support of Summary Judgment at p. 12). Therefore, a question arises as to whether the evidence submitted by Strasser falls under either the direct or indirect method or both for proving discrimination.
The Seventh Circuit is clear on the following point: under the direct method of proof for a claim of discrimination either direct and/or circumstantial evidence may be utilized to raise a genuine issue of fact. Richter v. Hook-Superx, Inc., 142 F.3d 1024, 1028 (7th Cir. 1998); Hartely v. Wisconsin Bell, Inc., 124 F.3d 887, 889 (7th Cir. 1997); Troupe, 20 F.3d at 736. That evidence may consist of the following types, "suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn." Troupe at 736.
SFSB attempts to analyze Strasser's age and gender claims primarily under the indirect method, (See Reply 15-16) yet it is clear from her brief that Strasser is not attempting to prove her discrimination claims under that method. Rather she is attempting to use the direct method route as established under Troupe.
As noted above, one form of circumstantial evidence that may be provided by a plaintiff is that the employer acted in a discriminatory manner towards other employees in the protected group. See Troupe at 736; See also; Cummings v. Standard Register Co., 265 F.3d 56, 63-4 (1st Cir. 2001). Strasser has come forward with various examples of this type of evidence. Strasser alleges that Cassidy has exhibited a discriminatory animus toward older female employees. She contends that Cassidy engaged in a pattern of abuse, made unjustified claims of unsatisfactory performance and then attempted to force them out by demoting them or making their circumstances at the bank unbearable.
Strasser proffers certain events concerning Cassidy's treatment of Jacqueline Keener as one such example of his discriminatory animus. Strasser alleges that Cassidy expressed to her on several occasions that Keener did not "look the part." (Strasser Decl. at ¶ 15).
Strasser contends that despite her evaluation that Keener performed satisfactorily, Cassidy insisted that she was not competent. (Strasser Decl. at ¶¶ 16-17). In March 1994, Strasser alleges that Cassidy directed her to place Keener on probation. Strasser contends that she proceeded to do this not because of her performance but merely because Cassidy had so directed. (Strasser Decl. at ¶ 17). More troubling is an incident involving Cassidy and Keener where he is alleged to have thrown and hit Keener with a quarter in the bank lobby in front of a bank customer. (Keener Decl. at ¶ 5). Keener avers that Cassidy then remarked that "this is what I pay her to answer the phone." (Id.). On another occasion, Cassidy told Keener that he did not want her seen in a commercial that the bank was filming. (Keener Decl. at ¶ 7). Keener terminated her employment with the bank shortly after her being placed on probation by Cassidy and attributed her treatment by him as the reason. (Keener Decl. at ¶ 10). Additionally, Strasser has alleged that Cassidy engaged in a similar pattern to discriminate against Barbara Scherich, Nancy Fischel and Mary Lou Cain despite their satisfactory performance at the bank. (See Strasser Decl. at ¶¶ 7-11; 12-14; 18-27)
SFSB counters Strasser argument with the contention that the various actions taken by Cassidy against these women were for legitimate reasons (i.e. poor job performance). (Cassidy Dep., 13, 30-34, 102-08, 109-12) However, the evidence of record suggests that at least some of these older female employees were satisfactorily performing their jobs at SFSB (See Strasser Decl. Exhibits 1,2,3,4). and yet according to Strasser and at least two of the women (Keener and Cain) were nevertheless subject to discriminatory treatment by Cassidy. (Keener Decl. ¶ 10 and Cain Dep. at p. 24; Strasser Decl. ¶¶ 18-27).
Next, Strasser contends that Cassidy engaged in a similar pattern of discriminatory conduct against her beginning in September 1998 and ending with her termination in May 1999. She argues that he initiated a campaign of false employment evaluations, and pretextual reasons for being transferred from her personnel officer position in 1998 and her termination in 1999. Specifically, she contends that Cassidy initially told her that she was transferred from the position because he needed an administrative assistant and then replaced her with a younger female employee, Theresa Woodruff. (See Strasser Decl. at ¶ 37). SFSB argues that Strasser was removed from her personnel officer position because of her poor performance with respect to those duties. However, according to Strasser, at the time of her transfer from the personnel officer position Cassidy did not proffer that reason for her transfer but rather stated that he needed an administrative assistant to assist him with his duties. (Strasser Dep. p. 257 Decl. at ¶¶ 35-37). Furthermore, Strasser has specifically refuted Cassidy's evaluation of her performance. (See Strasser Decl., Exhibit 16).
In 1999, after her transfer to the New Accounts department, Strasser alleges that Cassidy continued his campaign of unjustifiably criticizing her performance with SFSB. Cassidy continued his criticism and protestations concerning her performance in the New Accounts department despite being given a satisfactory rating by her current supervisor, Hendricks, in March of 1999. (See Strasser Decl. at ¶¶ 48, 50-54; Ex. 20, 21). Strasser notes that Cassidy listed several explanations for her termination in May 1999. However, at his deposition, Cassidy left the impression that Strasser either did nothing wrong or was not responsible for some of the incidents listed in the termination memo. (See Cassidy Deposition pp. 175-177). The evidence presented by Strasser if believed raises an inference that despite her satisfactory performance she was continually criticized and that several of the reasons given by SFSB for her termination were pretextual. Troupe, 20 F.3d at 736-37.
A further piece of circumstantial evidence is the ambiguous statement made in the 1999 memo Cassidy sent to Hendricks concerning the destruction of certain bank documents. The alleged discriminatory statement said "Please tell those girls to stay away from the shredder !!!" (See Strasser Decl. Ex. 22). The term girls had been added by Hendricks after he had "whited out" the term used by Cassidy. Strasser contends that Hendricks told her that he "whited out" the term used by Cassidy because it was too offensive for Strasser to see. (Strasser Decl. at ¶ 58).
Alternatively, SFSB contends that the term used by Cassidy was "yokels." Hendricks contends that he changed the memo from "yokels" to "girls" because he thought the former would detract from the purpose of the memo. (Hendricks Dep. pp. 55-59). While this explanation is plausible, if Strasser's statement is believed concerning Hendricks statement to her, the trier of fact could infer that a more offensive term was used by Cassidy. See Troupe at 736; (types of circumstantial evidence of intentional discrimination include ambiguous statements oral or written). This in turn could be further circumstantial evidence of Cassidy's discriminatory intent toward certain women in general and Strasser in particular.
While these acts standing alone do not rise to the level of direct evidence of discrimination, a reasonable jury could infer from these facts that Cassidy had engaged in a prior pattern of discriminatory conduct toward certain other women at SFSB in general and Strasser in particular. Alternatively, it may also be quite plausible that SFSB's legitimate appraisals of certain female employees and Strasser formed the reasons behind their terminations or alleged adverse employment actions. However, the above examples of circumstantial evidence raises an inference that possible improper motives played a part in certain decisions made by Cassidy with respect to Strasser's employment with SFSB. Therefore, under the applicable summary judgment standard, SFSB's motion for summary judgment with respect to Strasser's gender and age discrimination claims must be denied at this particular stage of the proceeding.
C. Retaliation Claim
42 U.S.C. § 2000e-3(a) provides: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter." See also 29 U.S.C. § 632(d);(Opposition to unlawful practices under the ADEA).
In Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 643-44 (7th Cir. 2002), the Seventh Circuit clearly delineated the two avenues in which a plaintiff can pursue a claim for retaliation. The first method is by demonstrating through direct evidence that: 1) the plaintiff has engaged in protected activity and 2) as a result of that activity suffered the adverse employment action of which the plaintiff complains. Stone, 281 F.3d at 644. If that evidence is not contradicted by the defendant then the plaintiff will be entitled to summary judgment. Id. However, once the defendant proffers evidence that contradicts that conclusion a question of fact arises as to which version is to be believed "unless the defendant presents unrebutted evidence that he would have taken the adverse employment action against the plaintiff even if he had no retaliatory motive." Id.
The second method a plaintiff may utilize arises when there exists only indirect or circumstantial evidence of a retaliatory motive on the part of a defendant. See Hilt-Dyson v. City of Chicago, No. 01-20925, 2002 WL 272774, at *4 (7th Cir. Feb. 27, 2002); See also Stone at 644. A prima facie showing under this method requires the following: 1) the plaintiff engaged in statutorily protected activity; 2) the plaintiff performed her job according to her employer's legitimate expectations; 3) despite meeting the employer's legitimate expectations, the plaintiff suffered a materially adverse employment action; and 4) the plaintiff was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Stone at 644.
The plaintiff must establish each element of the prima facie case in order to proceed. After a sufficient showing, the employer then must offer a legitimate, noninvidious reason for the adverse employment action. Stone at 644. Once the employer proffers evidence of a legitimate reason for the plaintiff's termination, then "the burden of production shifts back to the plaintiff to demonstrate the pretextual nature of the proffered reason." Hilt-Dyson v. Chicago, No. 01-2095, at opinion pg. 14, 2002 WL 272774 (7th Cir. Feb. 27, 2002).
Strasser has alleged two distinct claims for retaliation against SFSB. She alleges that she was retaliated against for filing her EEOC claim against SFSB in 1998 and that she was retaliated against for opposing the alleged discriminatory practices engaged in by Cassidy during the May 1999 meeting with Hendricks, Cain and Hunt.
1. Opposition Claim
The court will begin with the more recent of the two alleged retaliation claims. Strasser contends that her termination resulted from her opposition to certain retaliatory and discriminatory practices engaged by Cassidy during the May 1999 memo shredding meeting. The actual discussion that resulted during the May meeting is in dispute by the parties. Strasser contends that she initiated a dialogue with Hendricks strongly noting her concern with Cassidy's use of an offensive word in the memo and that Cassidy was pursuing a campaign against her because of her prior discrimination and retaliation claims against him and the bank. Furthermore, Strasser's deposition testimony reveals that she let Hendricks know in no uncertain terms that she felt that these latest actions were the result of a continuing campaign against her by Cassidy. Specifically she stated:
I said that I was tired of, Of Mr. Cassidy taking it out on the, New Accounts Department, that — when it was me. I said I didn't, I didn't want him to pick on the other girls when it was me that he was, was after and I, I'd appreciate it if he would, you know, please leave, leave the girls alone. (Strasser Dep. p 133)
She further stated that "I never said I was going to sue him or the bank." (Strasser Dep. p 134)
However, she also responded that she might have made other comments but that she did not remember any at that time. (See Id.). Later, Strasser recalled telling Hendricks that she did not believe that a judge would like what Mr. Cassidy was doing. (See Strasser Decl. at ¶¶ 62-63).
Alternatively, SFSB contends that Strasser did not make such claims to Hendricks and denied that she was threatening legal action. (See D's Reply Brief at p. 4). However, the reason given by SFSB for Strasser's termination was because she had threatened legal action during that meeting. (See Cassidy Dep. pp. 183-184). According to Cassidy, Strasser was terminated because she launched into a verbally abusive tirade, threatening the bank, Jim Hendricks and Cassidy and that the threats made placed both her superiors and subordinates in an untenable situation undermining the normal chain of authority. (See Strasser Deposition Ex. 19).
SFSB appears to offer an alternative reason for her termination other than threatening litigation. SFSB contends that she was terminated for converting an important meeting about document shredding into a confrontation about her and the bank in front of two subordinates and then refusing to meet with Cassidy to resolve the situation, compounded by other recent events discussed in the termination memo. (Cassidy Dep. pp. 183-86; Ex. 23 to Pl. Ex. A). Cassidy's deposition testimony reveals that although he listed several reasons for her termination; the only reason for her termination was because she failed to apologize for the outburst during the meeting. (Cassidy Dep. 183).
The facts presented by both parties sets up an issue of fact that cannot be resolved in either of the party's favor at the summary judgment stage. A reasonable jury could conclude either that Strasser was terminated for opposing certain protected acts under Title VII or that she was terminated for her insubordinate acts. The fact that Cassidy listed several reasons for Strasser's termination and then later recounted some of those reasons could infer that the termination was pretextual.
The EEOC Compliance Manual cites the following examples of protected activity:
Threatening to file a charge or other formal complaint alleging discrimination.
A complaint or protest about alleged employment discrimination to a manager, union official, co-worker , company EEO official, attorney, newspaper reporter, Congressperson, or anyone else constitutes opposition. (Emphasis Added).
EEOC Compliance Manual at pp. 7-8.
Moreover, Strasser's allegations concerning Cassidy's treatment of her and other older female employees if believed could also support a finding that she reasonably believed that Cassidy engaged in a pattern of retaliation and discrimination against her. The fact that Strasser filed a prior claim against Cassidy accusing him of engaging in a campaign of age and gender discrimination coupled with the alleged nefarious shredding memo to Hendricks is further circumstantial evidence from which a reasonable person could conclude that Strasser was terminated for an improper reason. This evidence along with the alleged statement made to Strasser by Hendricks that Cassidy was angry with her and that she better be careful (Strasser Dep. p. 242) could support a finding that her termination was for engaging in protected expression and not for a legitimate noninviduous purpose.
Interestingly, Strasser's deposition testimony on this point is neither addressed by SFSB in either its initial brief nor its reply brief.
Alternatively, SFSB has put forth evidence which if believed by the trier of fact could establish that she was not performing adequately in her various positions and that she was terminated for her outburst in the meeting concerning the destruction of important bank documents.
2. Participation Claim
Lastly, Strasser argues that she was also retaliated against for filing her EEOC charge against SFSB in 1998. Strasser has alleged facts which if believed establish a prima facie case of discrimination. First, it is uncontroverted that she filed an EEOC claim in 1998 against SFSB alleging that Cassidy engaged in discriminatory and retaliatory acts. Second, she alleges that after filing the charge only she, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though she was allegedly performing her job in a satisfactorily manner. See Stone, 281 F.3d at 644.
After Strasser withdrew her claim Cassidy placed her on final warning even though according to her the prior employment evaluations were not to be considered under the settlement agreement. Moreover, viewing the suspicious circumstances discussed above in a light most favorable to Strasser, a reasonable person could conclude that Cassidy was engaging in a campaign of retaliation and discrimination.
Alternatively, as discussed above, a reasonable person could conclude that Strasser was fired for the noninvidious reasons proffered by SFSB. The court notes that the seven month period between the charges laid out in her 1998 EEOC complaint alone will be insufficient to establish a claim of retaliation. See Stone at 644.
However, given the various evidence of record, the court concludes that given the benefit of all reasonable inferences which a court must do at this particular stage, Strasser has put forth enough evidence to defeat summary judgment. Therefore, SFSB's motion for summary judgment for Strasser's retaliation claim based upon her protected act of filing her 1998 EEOC charge is denied.
IV. CONCLUSION
For the following reasons the Defendant's motion for summary judgment is DENIED with respect to all claims and the Plaintiff's partial motion for summary judgment on her opposition claims is DENIED. The Defendant's motion to strike or disregard the Plaintiff's motion for summary judgment is DENIED as moot. The Defendant's motion to strike or disregard potions of exhibits to Plaintiff's memorandum is DENIED. IT IS SO ORDERED.