A. Counts I and II
Plaintiff's age and sex discrimination claims come to us under a theory of disparate treatment. The key question is whether plaintiff's sex or age was a substantial factor in Vestal's decision to fire her. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 1795, 1797, 104 L. Ed. 2d 268 (1989) (White, J., and O'Connor, J., concurring). Resolving that question requires an inquiry into the mind of the decisionmaker. Ordinarily, summary judgment is particularly inappropriate when motivation and intent are material issues. See Munson v. Friske, 754 F.2d 683, 690 (7th Cir. 1985) (summary judgment usually improper when case involves weighing of conflicting questions of motive and intent). Even in a discrimination case, however, summary judgment can be proper if the plaintiff fails to produce any evidence of discriminatory intent. Id.
In a discriminatory treatment case the plaintiff may prove her case either directly or indirectly. As open admissions of discriminatory intent are rare today, the most common method of proof is indirect and circumstantial. The Supreme Court laid down a framework for such indirect proof in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and elaborated on it in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Courts apply this framework to assess a plaintiff's indirect proof of age discrimination as well as sex and race discrimination. See Mechnig v. Sears, Roebuck, & Co., 864 F.2d 1359, 1364 (7th Cir. 1988). The plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. The prima facie case, once established, creates a rebuttable inference that the employer based its action on an impermissible factor. The employer can rebut that inference of discrimination by articulating a legitimate non-discriminatory reason that explains the challenged action. The plaintiff must then have the opportunity to prove, by a preponderance, that the legitimate reasons the employer offered were not its true reasons and were thus a pretext for discrimination. Burdine, supra, 450 U.S. at 252-53. Although the plaintiff retains the burden of persuading the factfinder that she is the victim of intentional discrimination, she can prove this ultimate issue indirectly by establishing that the non-discriminatory explanation proffered by the employer is not credible. Id. at 256.
The Supreme Court has said that in a disparate treatment case the plaintiff's initial burden of proving a prima facie case is "not onerous." Id. at 253. To establish a prima facie case of a discriminatory refusal to hire, the Supreme Court has required only that plaintiffs show they belong to a class protected by Title VII, that they were qualified for the job, and that the employer continued seeking applications after rejecting the plaintiffs.
Courts have tailored the McDonnell Douglas test to fit cases where already-employed plaintiffs challenge an adverse action taken by their employer. Plaintiffs who are over forty, and thus members of a class protected by the ADEA, establish a prima facie case simply by showing that they were adequately performing their job, that they were fired, and that their employer sought a replacement. Oxman v. WLS-TV, 846 F.2d 448, 454 (7th Cir. 1988).
The cases in this circuit have disagreed over whether courts should also require plaintiffs to show that the employer replaced them with younger staff. See Mechnig v. Sears, Roebuck, & Co., 864 F.2d 1359, 1364 n. 5 (7th Cir. 1988). In discrimination cases the key issue is whether an impermissible factor governed an employer's decision at the time the decision was made. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 1785, 104 L. Ed. 2d 268 (1989). Because we believe that the identity of plaintiff's eventual replacement is not crucial to the initial showing of discrimination, we apply the test articulated in Oxman.
Because similar standards for evaluating the prima facie case apply to charges of sex discrimination, women establish a prima facie case of sex discrimination under Title VII by showing that they were adequately performing their job, were fired, and that the employer sought a replacement.
In this case the plaintiff has established a prima facie case of both age and sex discrimination. She is female and within the age group protected by the ADEA. She offers evidence that she performed her job according to her employer's legitimate expectations.
She was discharged, and the defendant sought and hired a replacement.
The defendant maintains that plaintiff has no claim of sex discrimination because the firing decision was made by another woman and her replacement was also female (Memorandum in Support of Defendant's Motion to Dismiss and/or for Summary Judgment, at 7). This position reflects a misunderstanding of the laws against discrimination and the evils they were enacted to combat. The fact that a woman fired a woman or a black fired another black does not demonstrate that the supervisor's decision was free of the racial and gender stereotyping that federal law attempts to remove from employers' decisionmaking.
When power and status are distributed unevenly, administrators may sometimes view members of some groups as more easily expendable than others -- either because of some misplaced notion of inferiority or because some groups with less power cannot protest adverse treatment as effectively. Managers of all races and genders in a culture arguably still permeated with racist and sexist stereotyping may discern that a decision to take adverse action against a member of a disfavored group will spawn less opposition, will be greeted with less protest or criticism, or will create less friction among people who "count." When exercising some degree of authority within institutions still dominated by white males, members of traditionally disfavored groups may feel extra pressure to show they are not soft on members of their own group. Furthermore, members of traditionally outsider groups may themselves inculcate some of the messages of inferiority that the dominant culture transmits. Cf. Castaneda v. Partida, 430 U.S. 482, 503 & n.n. 2, 3, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (Marshall, J., concurring) (adopting majority's negative attitudes is a frequent response to discrimination and prejudice); see also Brown v. Board of Education, 347 U.S. 483, 494 & n. 11, 74 S. Ct. 686, 98 L. Ed. 873 (1954).
The potentially subtle nature of discrimination is one reason that courts permit plaintiffs to mount their proof indirectly. Courts have acknowledged, at least in ADEA cases, that discrimination can be unconscious. See Oxman v. WLS-TV, 846 F.2d 448, 453 (7th Cir. 1988); La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409-10 (7th Cir. 1984) ("age discrimination may be subtle and even unconscious").
Nor does the age and gender of plaintiff's replacement prevent a finding of age or sex discrimination. While plaintiffs can strengthen their case when they show the employer chose replacements from outside their protected class, failure to make that showing does not require judgment for the employer. The critical inquiry is the employer's motivation at the time of the firing. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 1785, 104 L. Ed. 2d 268 (1989). In the case at bar, the plaintiff's position remained open for five months. The employer's choice of applicants in May is not that probative of the employer's motivation five months earlier. The employer's discriminatory purpose, if there was one, could have been stymied by lack of suitable younger replacements, and the subsequent hiring decision may have been influenced by the fact that plaintiff had already advanced charges of age and sex discrimination. The fact that defendant later hired members of plaintiff's protected class is simply not conclusive. Cf. Furnco Construction Corp. v. Waters, 438 U.S. 567, 579, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978).
Plaintiff has thus stated a prima facie case of both age and sex discrimination. This creates an inference that the defendant fired plaintiff for impermissible reasons. In response, defendant asserts that plaintiff's age and sex had nothing to do with its decision to fire her. By asserting that plaintiff was fired for insubordination, defendant has advanced a legitimate non-discriminatory explanation. The inference of discrimination created by the prima facie case thus disappears.
The inference of discrimination returns, however, if plaintiff can show that the explanation advanced by defendant is not the true reason for the firing. In Grohs v. Gold Bond Building Products, 859 F.2d 1283, 1286 (7th Cir. 1988), the court explained that a plaintiff can demonstrate pretext by showing that the proffered reasons had no basis in fact, did not actually motivate the discharge, or were insufficient to motivate firing. In this case plaintiff offers evidence that support a finding of pretext on all three prongs of the test delineated in Grohs. Viewing the facts in the light most favorable to the plaintiff, it is possible to regard Vestal's conclusion, that plaintiff was insubordinate by deliberately filling unbudgeted positions without authorization, as not reasonably based on the facts known to Vestal at the time.
Second, there is evidence that the alleged insubordination was not the reason Vestal wanted to fire plaintiff. On the contrary, plaintiff will testify that the explanation first offered was that the Institute of Psychiatry needed to be revamped and that Vestal regarded her as too attached to old ways of operating. Third, plaintiff can offer evidence that the problems that Vestal claims prompted the discharge were, at most, a result of poor communication and did not merit an action so severe as abrupt termination. In sum, we believe that there remains a genuine issue of material fact whether plaintiff's alleged insubordination actually motivated the discharge.
Because the prima facie cases permits the factfinder to infer that impermissible discrimination occurred, and because that inference returns if the factfinder concludes that the employer's proffered explanation is not credible, a mechanical application of the McDonnell Douglas test would thus suggest that plaintiff automatically survives defendant's motion for summary judgment on the claims of both age and sex discrimination. This approach recognizes that an employer may be held liable simply for lying about the real reason for discharging a member of a class protected by federal discrimination laws, and, indeed, there is authority for such a result. The Seventh Circuit has recognized that the opportunity to show pretext means that a plaintiff who has successfully presented a prima facie case may prevail simply because the employer has concealed the real reason for its employment decision. See Graefenhain v. Pabst Brewing, 827 F.2d 13, 18 n. 7 (7th Cir. 1987), overruled on other grounds, Coston v. Plitt Theatres, Inc., 860 F.2d 834, 836 (7th Cir.), cert. denied, 485 U.S. 1007, 108 S. Ct. 1471, 99 L. Ed. 2d 700 (1988). See also Chipollini v. Spencer Gifts Inc., 814 F.2d 893, 899 (3d Cir.) ("A defendant which is less than honest in proffering its reason for discharge risks an unnecessary . . . discrimination verdict"), cert. dismissed, 483 U.S 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987).
There are problems with such a mechanical approach to the McDonnell Douglas formulation. First, every person, white or black, male or female, is a member of a class protected by Title VII. Some courts, recognizing that the Supreme Court first formulated the lenient McDonnell Douglas test for plaintiffs from historically disfavored groups, have required white male plaintiffs alleging so-called "reverse discrimination" to meet a tougher standard in establishing their prima facie case. See e.g. Bishopp v. District of Columbia, 252 U.S. App. D.C. 156, 788 F.2d 781, 786 (D.C.Cir. 1986). In this case, however, the plaintiff is a woman, and women have historically endured discrimination in the workplace. Yet there is a second problem with mechanically applying the McDonnell Douglas approach. It requires employers to face a trial whenever they have not advanced their real reasons for firing a protected employee who can assert adequate job performance. It is doubtful that Congress intended that Title VII require employers to produce, at the risk of a full-fledged trial and civil liability, their true reasons for firing employees when those true reasons have nothing to do with race or sex discrimination. "Title VII does not compel every employer to have a good reason for its deeds; it is not a civil service statute." Benzies v. Illinois Dept. of Mental Health, 810 F.2d 146, 148 (7th Cir.), cert. denied, 483 U.S. 1006, 107 S. Ct. 3231, 97 L. Ed. 2d 737 (1987).
Although the prima facie cases raise an inference of discrimination, the factfinder is not compelled to award victory to the plaintiff simply because the employer has not been candid about the real reason for the firing. Id. At trial, the McDonnell Douglas framework does no more than guarantee that the factfinder must decide the ultimate issue: did the employer base its action on an impermissible factor. The plaintiff bears the ultimate burden of proof, and the mere inference created by the prima facie case does not necessarily sustain that burden. United States Postal Service Bd. of Govs. v. Aikens, 460 U.S. 711, 714-15, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). Even if the employer lies about the real reasons for the firing, other reasons, not impermissible under federal law, might be suggested by the evidence. Courts in discrimination cases have consequently been taking a more critical look when plaintiffs attempt to survive summary judgment by simply pointing out that they have established a prima facie case and raised a question of pretext. Courts have looked for additional evidence that would permit a rational finder of fact to conclude, by a preponderance of all the evidence that will be heard at trial, that the employer acted on the basis of impermissible considerations. The Seventh Circuit has suggested that courts consider whether the state of the evidence is such that, if the case were tried tomorrow, the plaintiff had a fair chance of prevailing. See Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572-73 (7th Cir. 1989).
The evidence of sex discrimination in this case is slim. Although there is evidence that the employer's proffered reason is not the real reason for the firing, this is not a case where a showing of pretext necessarily eliminates all lawful explanations. Even if a factfinder did not believe that the alleged insubordination motivated the firing, the record as a whole suggests explanations other than sex discrimination. Financial pressure to reduce expenses in the hospital, the efforts of new management to assert their authority in a department staffed by long-time employees, an actual and irremediable loss of trust caused by a possibly mistaken but good-faith conclusion that plaintiff was insubordinate, or even discrimination based on age (see below) are alternative explanations with support in the record.
For a finding of sex discrimination in this case the plaintiff cannot carry her ultimate burden of proof merely by showing that she is female and was performing her job well. We need something more. In the pleadings and in the depositions there is some indication that plaintiff contends that similarly situated males were not fired summarily but were treated more favorably and offered severance pay. Such evidence might be sufficient additional evidence of sex discrimination to survive defendant's motion for summary judgment. Yet plaintiff failed to mention any of this additional evidence in her statement of additional facts under Local Rule 12(m). We must evaluate the motion for summary judgment accordingly.
Plaintiff asserts the theory that as the only woman on the steering committee of the Institute of Psychiatry, she was the easiest and most expendable person to single out for adverse action as part of the power struggle between the hospital administration and the Institute. Plaintiff's close association with Dr. Visotsky lends some support to this theory, and so does plaintiff's testimony that Vestal announced plaintiff's termination a day earlier than planned because Dr. Visotsky was "interfering." Faced with complicated facts that can only emerge in full color from the testimony of a variety of witnesses with varying interests and motivations, we cannot say, on the basis of this cold record, that as a matter of law plaintiff has no fair chance of prevailing at trial. Although this case is close, we believe that plaintiff has presented enough evidence to squeak by. Defendant's motion for summary judgment on count I is therefore denied.
Plaintiff's theory of age discrimination is supported by the same evidence of pretext, the same evidence of the power struggle between the hospital administration and the Institute of Psychiatry, but is also supported by some additional evidence. The administration's concern with the Institute's expenses, especially the administration's view that Institute staff were overpaid, supports a finding that the hospital could be motivated by a desire to replace plaintiff with a lower-paid employee. There is evidence that Vestal wanted to fire plaintiff because asking her to oversee the Institute's revamping would be like "asking a mother to change the children she has raised" (Veatch dep. at 278). This evidence may simply reflect the efforts of new management to clean house. Cf. Grohs v. Gold Bond Building Products, 859 F.2d 1283 (7th Cir. 1988). Viewed in the light most favorable to plaintiff and in the context of all the evidence, however, Vestal's statement could reflect a view that plaintiff was too old, had been around too long, and needed to be replaced not simply with new management, but with younger and cheaper management.
The age discrimination count is also a close case with a complicated mosaic of facts. Yet, when viewing these facts and their reasonable inferences in the light most favorable to the plaintiff, we cannot rule out the possibility that a rational trier could conclude that impermissible factors motivated the employer's decision to fire plaintiff. Summary judgment is therefore inappropriate. Defendant's motion to dismiss count II is therefore denied.
B. Count III
Defendant's chief executive officer has admitted that plaintiff was not an employee-at-will -- she could be fired only for cause (Mecklenburg dep. at 26). The parties dispute the terms of the contractual relationship and do not agree about what procedural protections the defendant was contractually obligated to provide when employees of plaintiff's rank became the subject of disciplinary accusations. The terms of plaintiff's contract can be determined at trial. Because the question of whether plaintiff was properly dismissed for just cause remains an unresolved issue of material fact, summary judgment is inappropriate. Defendant's motion to dismiss count III is therefore denied.
The parties agree that under Illinois law plaintiffs must file defamation actions within one year. Ill.Rev.Stat. ch. 110, para. 13-201 (1987). Plaintiff did not assert a defamation claim until she filed her first amended complaint on January 23, 1989.
Plaintiff does not argue that the original complaint provided notice of the facts comprising the defamation claim, so there is no question whether the filing of the defamation count in the first amended complaint relates back to the date of the original filing. Therefore, the only actionable defamations are those that occurred in the year before the amended complaint was filed. Plaintiff thus cannot recover for any defamatory statements allegedly made before January 23, 1988.
In her complaint and deposition, plaintiff does not describe with sufficient specificity any allegedly defamatory statements made after January, 1988. Defendant cites Illinois cases that require plaintiffs to specify clearly what words plaintiff claims create a cause of action. Plaintiff does not respond to defendant's argument. We note further that plaintiff has failed to set out in her 12(m) statement any facts that support the defamation claim. Accordingly, defendant's motion to dismiss count V is granted.
For the foregoing reasons, defendant's motion for summary judgment on counts I, II, and III is denied. Defendant's motion to dismiss count V is granted.