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).
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).
Larsen has offered nothing substantive to contradict or even to discredit that.
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."
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).
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).
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;