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June 1, 1994

DIANE LARSEN, Plaintiff,

The opinion of the court was delivered by: MILTON I. SHADUR


 Diane Larsen ("Larsen") has sued Club Corporation of America, Inc. ("CCA") and various of its subsidiaries' *fn1" (defendants are collectively referred to as "Clubs"), charging that they violated a provision of the Fair Labor Standards Act ("FLSA") (29 U.S.C. ยง 215(a)(3)) *fn2" by refusing to allow her to fill jobs at two clubs and by including false statements in her personnel file in retaliation for her asserting a right to overtime wages. *fn3" Clubs have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. *fn4" For the reasons set forth in this memorandum opinion and order, Clubs' motion is granted.


 Larsen first started working for CCA-affiliated clubs in 1978, ultimately working for a total of five such clubs by transferring from one to another (D. 12(m) P 17; Larsen Dep. II 72 *fn6" ; Larsen Dep. II Ex. 2). On March 23, 1989 she resigned her job as a pastry chef at the Metropolitan Club of Chicago, Inc. ("Metropolitan"), a wholly-owned subsidiary of CCA, to become the Food and Beverage Manager at the Lakeshore Athletic Club ("Lakeshore"), which is managed by Lakeshore Management (D. 12(m) PP 2, 3).

 Shortly after that transfer (on April 7, 1989) Larsen consented to become a plaintiff in Avitia v. Metropolitan Club of Chicago, 1989 U.S. Dist. LEXIS 10411, No. 88 C 6965 (N.D. Ill.), a pending lawsuit that charged Metropolitan with violations of FLSA for failure to pay overtime wages (D. 12(m) P 4; P. 12(n)(2) P 18). *fn7" While at Lakeshore Larsen was neither harassed nor discriminated against because of her participation in that suit (D. 12(m) P 5). Ultimately on April 2, 1993 she was awarded $ 12,621 in damages for that claim (P. 12(n)(2) P 19; P. Ex. 21).

 Meanwhile, in May 1990 Larsen had telephoned head chef James Draveneck ("Draveneck") at the CME Club ("CME"), a private club managed by Exchange, to inquire about the possibility of a job (D. 12(m) P 7). *fn8" On May 28 the two of them met with CME manager Donna Kozak ("Kozak") to discuss that possibility (P. 12(n)(2) P 8; Larsen Dep. I 18). According to Larsen, she was told that a position would be available shortly because an employee was going to take maternity leave (D. 12(m) P 18; Larsen Dep. I 19). Assertedly Kozak said the position would pay $ 10 an hour, but then agreed to the $ 12 an hour that Larsen "thought [she] was worth" (Larsen Dep. I 19). After the meeting Larsen says she spoke alone with Draveneck in his office, and he told her that she was to start the first Monday after July 4 and her hours were to be 5 a.m. to 1 p.m. Monday through Friday (Larsen Dep. I 19-20; P. 12(n)(2) P 8). *fn9"

  Larsen then told Lakeshore's manager Walter Reule ("Reule") of her intent to transfer to CME, to which he responded "that was fine" (Larsen Dep. I 20; Reule Dep. 13-14). At some point thereafter Larsen resigned her position at Lakeshore (D. 12(m) P 9). Jeff Robinson ("Robinson") was then transferred from Meadow to Lakeshore to fill her position (Reule Dep. 19; P. 12(n)(2) P 29).

 About a week before Larsen thought that she was to begin working at CME she called Draveneck, who told her that "I can't hire you. . . .Donna [Kozak] said [I] couldn't hire [you]" (D. 12(m) P 9; Larsen Dep. I 22). Larsen promptly called Meadow's chef Greg Carso ("Carso") to apply for the sous chef position that Robinson had vacated to fill the position that Larsen had left at Lakeshore (D. 12(m) P 22). According to Larsen, Carso told her that he needed "some help" but would first have to discuss the matter with Meadow's manager Steve Strumpf ("Strumpf") (P. 12(n)(2) P 30; Larsen Dep. I 25). When Larsen again called on July 4, Carso said he could not hire her but didn't say why (P. 12(n)(2) PP 32, 33; Larsen Dep. I 26-27). Larsen then called Meadow's restaurant manager Mark Condie ("Condie"), who said that he would look into the matter (P. 12(n)(2) P 34) and who later met with Carso. According to Condie, Carso said that Larsen would not be hired "because she has a lawsuit going against CCA or Metropolitan Club" (P. 12(n)(2) P 35; Condie Dep. II 11). *fn10"

 Larsen also attempts to create the inference that CCA regional manager Richard Barbrow ("Barbrow"), who supervised CME and Meadow in addition to other clubs (P. 12(n)(1) P 25), ordered that she not be hired in retaliation for pursuing a FLSA claim. Larsen argues that such an inference is reasonable based on Barbrow's knowledge of her involvement in Avitia and his supervisory role over CME and Meadow. That contention must be and is rejected. Although Barbrow knew at some unspecified time that Larsen was a plaintiff in Avitia (Barbrow Dep. 21-22), he swore that he was not aware that she had applied for positions at CME and Meadow and that he never directed any club not to hire her (Barbrow Aff. PP 3-4). *fn11" Larsen has offered nothing substantive to contradict or even to discredit that. *fn12"

 As to Larsen's application for a position at CME, both Kozak and Draveneck state that after their meeting with Larsen the two of them discussed the matter later that same day. At that time Kozak decided not to fill the position Larsen was applying for in order to cut costs, so she told Draveneck not to hire Larsen (D. 12(m) P 18; Kozak Aff. P 3; Draveneck Dep. 35-36). At the time that decision was made, neither was aware that Larsen had a suit pending against Metropolitan (Kozak Aff. P 5; Draveneck Dep. 29-30). Moreover, Larsen admits that she knows of no one other than those two who was involved in the decision not to hire her at CME (D. 12(m) PP 15, P 18).

 As for Larsen's effort's to get a job at Meadow, Strumpf attested that he met with Carso and "decided not to incur the payroll expense of an additional employee," so that no one was hired for the position (Strumpf Aff. P 5). Strumpf swore that during that meeting he did not know that Larsen had applied for Robinson's old position, and in fact her name was not mentioned at all (id. P 7). Similarly, Carso testified that Larsen's involvement in Avitia was not a factor considered in the decision not to hire her, but rather that the decision was made in light of the fact that Meadow's actual revenues were roughly $ 125,000 below budget (D. 12(m) PP 27, 28).

 To this day (or more precisely, as of the time that the filings were made in connection with Clubs' current motion) neither of the positions for which Larsen applied has even been filled--part of defendants' continuing efforts to cut costs (D. 12(m) PP 18, 29; Kozak Aff. P 3; Strumpf Aff. P 6). Exchange has continued to operate without the kitchen job that had been held by the employee who left for maternity leave (D. 12(m) P 18), while Meadow has permanently reduced its staff from two sous chefs to one (id. P 29). That means that between 3 and 3-1/2 years have elapsed with no one holding either of the jobs that Larsen claims were denied to her as a retaliatory measure.

 On May 21, 1991, roughly a year after Larsen left Lakeshore, either Robinson or Lakeshore's Controller Michael Dow filled out an "EMPLOYEE SEPARATION FORM." *fn13" That form listed Larsen's last day as April 1, 1990 and, under the section headed "QUIT," listed as the reasons for her leaving two items: "Dissatisfied--career opportunities" and "Walked off job" (Complaint Ex. A; P. 12(n)(2) P 23).

 Applicable Legal Standards

 Section 215(a)(3) states in relevant part:

 It shall be unlawful for any person--


(3) to discharge or in any other manner to discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter. . . .

 As in other employment discrimination cases, a plaintiff alleging retaliatory discharge under Section 215(a)(3) may proceed either by way of the "mixed-motives" analysis announced in Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) or via the approach earlier established in McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and reconfirmed in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). *fn14" Price Waterhouse applies where both discriminatory and nondiscriminatory considerations influenced an employer in making an adverse employment decision, while the McDonnell Douglas-Burdine sequence is used where "either a legitimate or an illegitimate set of considerations led to the challenged decision" ( Price Waterhouse, 490 U.S. at 247). *fn15"

  Because any shifting of the burden of persuasion is really irrelevant to a Rule 56 motion, all that need be said about Price Waterhouse is that the plaintiff's responsibility is to create a reasonable inference that retaliatory considerations were a "substantial factor" in the complained-of adverse employment decision (490 U.S. at 259, 265 (concurring opinions of White and O'Connor, JJ.)(emphasis in original)). And because the three-stage analysis under McDonnell Douglas-Burdine is so familiar, this opinion will not rehearse it at this point except to recapitulate Larsen's burden at the first step of that analysis, the prima facie case. On that score Larsen must show that ( Rennie v. Dalton, 3 F.3d 1100, 1109 (7th Cir. 1993), quoting Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir. 1989)):


(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. *fn16"

 Application of the Standards

 Because Section 215(a)(3) embraces any "manner" of discrimination against an employee in retaliation for asserting an FLSA claim, the fact that Larsen had already quit her Lakeshore position when she was turned down for employment at CME and Meadow is irrelevant. Larsen asserts, and Clubs do not really contest, that Clubs regularly allow employees to move among the CCA-owned and -operated clubs when positions become available. *fn17" With that nonissue out of the way, this opinion now turns to the merits of Larsen's claim.

 1. CME Job Application

 Here there is no "mixed-motives" potential, so there is no need to speak in Price Waterhouse terms at all. Instead McDonnell Douglas-Burdine provides the relevant legal framework.

 Clearly Larsen satisfies the first two elements of the prima facie test. Her joinder in the Avitia suit for overtime wages due under FLSA was an exercise of statutorily protected expression, and her not being hired for the position at CME was obviously an adverse employment action. But it is equally clear that she cannot provide the third element, that of a "causal link" between her suit and her failure to be hired at CME.

 In employment discrimination cases it is only "the perception of the decision maker which is relevant" in determining the motivation for an adverse employment action ( Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 337-38 (7th Cir. 1991)). Here the only relevant decisionmakers (Kozak and Draveneck) were unaware of Larsen's statutorily protected expression--her involvement in Avitia. Absent such awareness there cannot be any "causal link" between that involvement and the ultimate decision not to hire Larsen--by definition an event of which a person is unaware cannot be a factor in any decision reached by that person ( O'Connor v. CTA, 985 F.2d 1362, 1369-70 (7th Cir. 1993)).

  As indicated earlier, Larsen Mem. 14 contends that the record supports the inference that it was Barbrow who ordered that she not be hired. But it is clearly not sufficient simply to show (as the record discloses) that Barbrow knew of Larsen's suit and had a supervisory role over CME as a regional manager of CCA. If that were enough, an inference of retaliatory or discriminatory behavior would be called for every time any senior manager knew that (1) a present or prospective employee was a member of a protected class or engaged in protected activity and (2) the employee suffered the consequences of an adverse employment decision.

 But the law unambiguously requires more: a showing that Barbrow was active in the decision not to hire Larsen at CME. There is no room for such an inference in this case. As already stated, Barbrow flatly denies that he had any role in the decision (a denial buttressed by the sworn statements of Kozak and Draveneck), and nothing in the evidence to which Larsen points supports a contrary inference.

 Larsen also attempts to rely on Holland, 883 F.2d at 1315 for the proposition that a "'telling' temporal sequence demonstrates [the necessary] causal link." But in that case the gap between the protected activity and the adverse action was only a week ( id. at 1309-10), while here it was more than a year. In the earlier Cuevas litigation in which the same legal knights that tilt in this case (see 752 F. Supp. at 1407) respectively entered the lists on behalf of another plaintiff and another CCA subsidiary, this Court held that even where the decisionmaker knew of the protected activity a gap of five months was "too long for any reasonable inference of a causal link" ( id. at 1411 & n.11, relying on a comparable decision by our Court of Appeals, Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985)). That conclusion follows a fortiori where, as here, the elapsed time is so much greater. *fn18"

 There is thus no genuine issue of material fact as to Larsen's failure to be hired at CME. Summary judgment in Clubs' favor is appropriate in that respect.

 2. Meadow Job Application

 Neither party has referred to Price Waterhouse at all. But given the already-discussed inference that this Court must make in Larsen's favor as between the testimony of Condie and of Carso, that case plainly provides the initial route to travel in addressing Larsen's Meadow non-hiring claim.

 Condie's testimony that Carso said Larsen would not be hired "because she has a lawsuit going against CCA or Metropolitan Club" is classical "smoking-gun" evidence. It surely supports the reasonable inference that Larsen's participation in Avitia was a "substantial factor" in the decision not to hire her--if, that is, Carso was either a decisionmaker ( Oxman v. WLS-TV, 12 F.3d 652, 659-60 (7th Cir. 1993); McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 687 (7th Cir. 1991)) or provided input on which the actual decisionmaker relied ( Jardien v. Winston Network, Inc., 888 F.2d 1151, 1155 (7th Cir. 1989); Crader v. Concordia College, 724 F. Supp. 558, 564 (N.D. Ill. 1989)). In this instance Strumpf made the ultimate decision not to hire Larsen at a meeting with Carso. It is surely reasonable to infer (although other inferences are also possible) either (1) that Carso's purported statement reported a view that Strumpf expressed at that meeting or (2) that Carso's statement reflected his own mindset, expressed to Strumpf, that contributed to the latter's decision. *fn19" In either event Larsen has satisfied her Price Waterhouse burden in the context of this Rule 56 motion.

 That being so, the burden shifts to Clubs to show as a matter of law "that it would have made the same decision" as to Larsen even if it had not taken her Avitia participation into account ( Price Waterhouse, 490 U.S. at 258). In that respect both Strumpf and Carso testified that cost-cutting was the reason for not hiring anyone at Meadow, and it is undisputed that the club's actual revenues were some $ 125,000 below budget. If credited, such financial considerations plainly constitute a permissible justification for the non-hiring decision ( Roger, 21 F.3d 146, 1994 U.S. App. LEXIS 5984, at *15-*16), sufficient to meet Clubs' burden of persuasion under Price Waterhouse as a matter of law. *fn20"

 Is there anything that calls for a different inference--for the discrediting of that testimony? It will be recalled that Strumpf, who made the decision not to fill the position, has denied even knowing that Larsen was a job applicant at Meadow (or, for that matter, that she was a plaintiff in Avitia). If those denials were to be held against Meadow, it would create the anomaly that employers who admit their partial reliance on impermissible factors in reaching an adverse employment decision would actually be in a better position than those who disclaim such reliance. After all, an employer in the former category can offer evidence that before or concurrently with its consideration of impermissible factors, it also relied on permissible factors that alone justify the decision ultimately reached. In this situation the factor that presumptively places Meadow in that category is the Rule 56 requirement that credits Condie's version of Carso's contradictory statement rather than Carso's. But how can an employer who puts forth Carso's contradictory statement--one that denies reliance on any impermissible factor to begin with--demonstrate that another (and wholly permissible) reason would "at the same time" have led to the same decision? Any such requirement would render the Price Waterhouse legal calculus totally unavailable to such an employer.

 Here Clubs escape that potential dilemma for an obvious reason: Meadow's second sous chef position for which Larsen applied has remained unfilled for nearly 3-1/2 years after Larsen's application--a permanent reduction in staffing. *fn21" As Bank Leumi (n. 4) teaches, Rule 56 does not command this Court to take leave of its common sense--Larsen is not entitled to the benefit of impossibly strained inferences, just reasonable ones. And it is surely unreasonable to infer that Meadow has continued for all this time to disable itself by not filling a position that it needs, just as a pretext to avoid liability to Larsen. Meadow's desire to cut costs must be credited as an independent basis for not filling the position for which Larsen applied, and there is no evidence (either direct or by way of reasonable inference) to suggest that Meadow's economic motivation has been offered as an after-the-fact pretext.

 Thus under the Price Waterhouse formulation it must be held that even when Condie's version is credited, Larsen would not have been hired in any event for a perfectly legitimate and nonactionable reason. And if the McDonnell Douglas-Burdine approach were to be applied, the result would be the same: That economic reason must be held to be non-pretextual. Hence either way Larsen also loses on the Meadows claim as a matter of law.

 3. Separation Form

 Finally there is Larsen's claim that the unflattering reasons for leaving Lakeshore indicated on her separation form ("quit--dissatisfied--walked off the job") also constitute retaliatory treatment. Clubs acknowledge that the form was incorrectly filled out. But what Larsen has done is simply to tender the separation form and then ask this Court to intuit that the stated reasons were selected by whoever filled it out in retaliation for her being a plaintiff in Avitia --she has offered absolutely no other evidence to support that contention.

 What Larsen prefers to ignore is that those notations were made roughly a year after she left Lakeshore and more than two years after she joined the Avitia litigation. Moreover, the form was never circulated to anyone else: It came to light only when discovery took place in this action. In sum, Larsen has not (even with the benefit of reasonable favorable inferences) provided the necessary "causal link" between her Avitia participation and the erroneous form. Clubs are also entitled to summary judgment on that aspect of Larsen's claim.


 There is no genuine issue of material fact on any of Larsen's claims, and Clubs are entitled to judgment as a matter of law on the entirety of those claims. This action is dismissed with prejudice.

 Milton I. Shadur

 Senior United States District Judge

 Date: June 1, 1994

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