experience, and the connection between that experience and the responsibilities of the three disputed positions. To a great degree, the job descriptions closely parallel the qualifications on Widmont's resume. Several of defendant's own witnesses acknowledge her qualifications. Indeed, at one point prior to her pregnancy, Peterson discussed with Widmont the possibility of Widmont serving in a position which would be the equivalent of an assistant director, implying that Peterson considered her a top candidate for this type of position. Widmont Deposition at 162-63, 351-52. Following the elimination of her position, Peterson also suggested that she apply for a position as a director at another hospital, again implying that she was qualified for a high level management position. Widmont Deposition at 195. Thus the EEOC's evidence is sufficient for the trier of fact to conclude that Widmont may have been at least equally qualified to those ultimately awarded the positions. We note, however, that it is difficult to reach any definitive conclusion regarding relative qualifications because the defendant does not present much evidence regarding the qualifications of the people whom it selected. Rather, defendant devotes the bulk of its efforts to challenging Widmont's qualifications.
Thus far we have determined that there is sufficient evidence for the trier of fact to conclude that (1) Northwestern had a preferential policy of offering eliminated employees any available positions for which they qualified, (2) the disputed positions were available, and (3) Widmont expressed interest in and qualified for the positions. Thus, the EEOC's prima facie case is sufficient to go to the trier of fact.
Now we proceed, finally, to examine the evidence of defendant's discriminatory motive. This evidence will be relevant to the EEOC's efforts to prove discrimination either directly, or indirectly under McDonnell Douglas by rebutting the nondiscriminatory explanations proffered by Northwestern. At the outset, we note the Seventh Circuit's warning that summary judgment is "notoriously inappropriate" where a party's intent is at issue. Strumph, 770 F.2d at 97 (citing Pfizer v. Internat'l Rectifier Corp., 538 F.2d 180, 185 (8th Cir. 1976), cert. denied, 429 U.S. 1040 (1977)). Thus, the summary judgment standard must be applied with "added rigor in employment discrimination cases, where intent is inevitably the central issue." McCoy v. WGN Continental Broadcasting Co., 957 F.2d at 370-71 (7th Cir. 1992).
As evidence of defendant's discriminatory motive, plaintiff points to testimony by Widmont and another employee in the Respiratory Care Department regarding Peterson's long history of discriminatory behavior towards pregnant women and new mothers. For example, during a prior reorganization of the department, Peterson suggested to Widmont that he might eliminate the position of Joan Heinz, a staff therapist who was then on leave from work due to pregnancy, because Heinz was "'already out.'" Widmont Deposition at 178-81. Rozlyn Caruso, another employee in Peterson's department, testified that Peterson had commented on at least one occasion that women with babies should stay at home and that he did not understand why they would not want to do so. Appendix to Plaintiff's Statement of Material Facts, Exhibit 9, Deposition of Rozlyn Caruso ("Caruso Deposition") at 66, 88, and Attachment. Caruso further testified that Peterson actually told her that her job would be eliminated when she had a baby and that she would be more "comfortable" at home with the child. Caruso Deposition, Attachment. During her pregnancy, Peterson made derogatory, sexist remarks to Caruso, such as "'Joe [her husband] must love your big bazooms.'" Caruso Deposition, Attachment. At a Christmas party, Peterson informed Widmont that his wife was "'at home with the child on her boob where she is supposed to be.'" Widmont Deposition at 179.
Defendant argues that this evidence of Peterson's discriminatory attitude is not admissible. It is true that "remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 1791, 104 L. Ed. 2d 268 (1989). However, "stereotyped remarks can certainly be evidence that gender played a part." Id. (emphasis in original). Moreover, as the Seventh Circuit recently observed, "different kinds and combinations of evidence can create a triable issue of intentional discrimination," including circumstantial evidence such as "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, 20 F.3d at 736. Defendant contends that the evidence should be excluded because the comments were not relevant to the employment decisions at issue. In support of this position, defendant cites the Seventh Circuit's decision in Monaco v. Fuddruckers, Inc., 1 F.3d 658 (7th Cir. 1993), in which the court found that the plaintiff failed to show a sufficient causal relationship between the discriminatory remarks of another employee and the employer's decision not to promote the plaintiff. However, in Monaco, the discriminatory comments were made by someone who lacked the authority to promote plaintiff. Id. at 659. The situation in the present case is entirely distinguishable in that the comments were made by the decision-maker himself.
It may be difficult, however, to show a direct connection between Peterson's remarks and the employment decisions concerning Widmont, and thus, the EEOC may not be able to win its case using the direct method of proof. See Randle, 876 F.2d at 569 (citing with approval the lower court's holding that under the direct method, a plaintiff's evidence "must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question"). Nevertheless, even if the EEOC cannot prevail on direct proof, it may succeed using the indirect McDonnell Douglas method: the evidence of the employer's discriminatory attitude is sufficient for a reasonable trier of fact to infer that defendant's stated reasons for its decisions were mere pretext for discrimination.
The defendant argues that despite the evidence of discriminatory motive, plaintiff cannot survive a summary judgment motion because plaintiff has failed to present evidence that employees not in the protected class, but similarly situated to Widmont, received better treatment. Defendant contends that plaintiff must show that non-pregnant employees whose positions had been eliminated while they were on leave were treated more favorably. Defendant is correct that such evidence would be one way of proving discrimination. However, as the Seventh Circuit discussed in Troupe, there are other acceptable types of evidence, including discriminatory comments and behavior and "other bits and pieces from which an inference of discriminatory intent might be drawn," as discussed above, and evidence that defendant's stated reasons for the treatment received by complainant are "unworthy of belief, a mere pretext for discrimination." 20 F.3d at 736. Moreover, "each type of evidence is sufficient by itself." Id. Thus, a failure to provide comparative evidence is not fatal.
Applying the rigorous summary judgment standard proposed by the Seventh Circuit in McCoy, 957 F.2d at 370-71, we conclude that the EEOC has provided enough evidence to create a genuine issue of material fact as to whether Northwestern's stated reasons for its decisions are pretext designed to conceal an underlying discriminatory motive. However, the EEOC's evidence is not sufficient to place the matter beyond dispute, especially in light of defendant's denials and alternative interpretations regarding some of Peterson's remarks and behavior. Thus, neither party is entitled to summary judgment regarding the claim of discrimination in the decision not to offer Widmont any of the three positions.
II. The Failure to Mitigate Defense
Assuming arguendo that plaintiff will be able to prove discrimination, defendant argues that Widmont is not entitled to damages due to her failure to mitigate. "The principle of mitigation of damages . . . requires that a person to whom a wrong has been done take reasonable steps to minimize the harm, on pain of having his award of damages cut down if he does not." Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1427 (7th Cir. 1986). The duty of a Title VII plaintiff to mitigate has been codified at 42 U.S.C. § 2000e-5(g)(1): "Interim earnings or amounts earnable with reasonable diligence by the person. . . discriminated against shall operate to reduce the back pay otherwise allowable." The defendant employer bears the burden of proving a failure to mitigate. E.E.O.C. v. Gurnee Inn. Corp., 914 F.2d 815, 818 (7th Cir. 1990). In order to succeed on a failure to mitigate defense, Northwestern must show both (1) that Widmont was not reasonably diligent in seeking other employment, and (2) that with the exercise of reasonable diligence there was a reasonable chance that she might have found comparable employment. Id.
However, defendant has cited little evidence regarding lack of diligence or the availability of comparable jobs. Widmont testified that following her termination, she contacted and sought employment at numerous other hospitals. A complainant satisfies the mitigation requirement by "demonstrating a continuing commitment to be a member of the work force." Donnelly v. Yellow Freight System, 874 F.2d 402, 411 (7th Cir. 1989), aff'd on other grounds, 494 U.S. 820, 108 L. Ed. 2d 834, 110 S. Ct. 1566 (1990). Part-time work may satisfy the duty to mitigate. Id. The fact that Widmont secured work on an "as needed" basis from one hospital roughly three months after her termination from Northwestern, and that she ultimately obtained a full-time position at another hospital less than two years later, is itself testimony to her continued diligence.
The thrust of Northwestern's failure to mitigate argument is based on the fact that Widmont opted to take the severance package rather than remain at Northwestern in a Grade 8 Respiratory Therapist position. Defendant complains that she earned lower wages in the two positions she obtained after leaving Northwestern and did not work full-time at first, thereby breaching her duty to mitigate. As a preliminary matter, we note that the EEOC has presented evidence to dispute defendant's contention that it genuinely offered Widmont a position as a respiratory therapist. Widmont testified that Peterson, who would be supervising her in the position, actually attempted to discourage her from accepting it. Furthermore, the duty to mitigate did not require Widmont to accept a demotion from the Grade 11 Coordinator position to a Grade 8 Respiratory Therapist position, a position in which she would be reporting to the very employees she formerly supervised and which she had held when she first started with Northwestern nearly nine years earlier. Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982).
The issue of damages and mitigation is further complicated by plaintiff's inability to continue working in a patient care position due to her disabling skin condition. Widmont maintains that the skin condition was caused by the soap provided by one of her new employers. As a consequence of the skin condition, Widmont can no longer wash her hands with the frequency required to provide "hands on" respiratory care to patients. Widmont has not worked, nor has she sought employment, since June 1992.
Defendant contends that Widmont's failure to seek alternative employment outside of patient respiratory care is itself a failure to mitigate. As a result, defendant maintains, Widmont should be denied backpay for the period after June 1992.
In response, the EEOC argues that the skin condition barring Widmont from patient care would never have developed in the first place had she not been forced to leave Northwestern. Plaintiff cites some cases from other circuits which suggest that it would be inappropriate to deny backpay where the employer's discrimination forced the employee into a position that resulted in a disabling injury. See, e.g., Grundman v. Trans World Airlines, 1990 U.S. Dist. LEXIS 13940, 54 F.E.P. 224 (S.D.N.Y. 1990); Whatley v. Skaggs Companies, 508 F. Supp. 302, 304 n.1 (D. Co. 1981), aff'd and modified on other grounds, 707 F.2d 1129 (10th Cir.), cert. denied, 104 S. Ct. 349 (1983). However, in the present case, the complainant was not totally disabled; her skin condition prevented her only from performing "hands-on" patient care. Indeed, by requesting in its complaint that Northwestern be ordered to reemploy Widmont, plaintiff concedes that she is able to work in some capacity in the health care field. Thus, Widmont's failure to look for alternative employment outside of direct patient care may constitute a partial breach of her duty to exercise reasonable diligence to seek other employment. However, Northwestern has presented no evidence regarding the availability of suitable employment opportunities for someone with both Widmont's qualifications and her disability. Thus, we cannot say that as a matter of law, Widmont breached her duty to mitigate, and we deny defendant's motion for summary judgment on this issue.
Because plaintiff concedes that it can make no claim of unlawful discrimination in the elimination of Widmont's position, defendant's motion is granted as regards this type of claim. However, regarding plaintiff's claim of discrimination in the decision not to offer Widmont alternative employment, the record is rife with genuinely disputed issues of material fact. Thus, both motions for summary judgment are denied as to this claim. Defendant's motion for summary judgment on the issue of failure to mitigate is also denied.
DATED: Jul 15, 1994
John F. Grady, United States District Judge