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July 15, 1994



The opinion of the court was delivered by: JOHN F. GRADY

This suit alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2OOOe et seq., is brought by the Equal Employment Opportunity Commission, ("the EEOC"), on behalf of complainant Janet Widmont, against defendant Northwestern Memorial Hospital ("Northwestern"). The case is before the court on defendant's motion for summary judgment and plaintiff's motion for partial summary judgment. For the reasons discussed below, defendant's motion is granted in part and denied in part, and plaintiff's motion is denied.


 In September 1979, Janet Widmont was hired by Northwestern as a Respiratory Therapist, Grade 8, in the Respiratory Care Department. Prior to joining the staff at Northwestern, Widmont received an Associate in Science degree in respiratory therapy and practiced as a respiratory therapist for both adult and child patients at another hospital for several years. After a series of written, oral, and clinical examinations, she was designated a Registered Respiratory Therapist by the National Board for Respiratory Therapy. During her first four years at Northwestern, Widmont was promoted through the ranks to several supervisory/managerial positions, concluding with her promotion to Coordinator of the Neonatal Intensive Respiratory Care Unit, the Grade 11 position in which she last served. In this capacity, she directed all aspects of the unit and supervised managers, respiratory specialists, and staff respiratory therapists.

 During roughly the same time period in which Widmont learned that her position had been eliminated and accepted the severance package, three positions arguably either became available or were created at Northwestern: (1) Respiratory Specialist, (2) Assistant Director of Respiratory Care, and (3) Technical Supervisor. The EEOC argues that Northwestern should have offered these three positions to Widmont in keeping with its policy of giving an employee whose position has been eliminated preference for any open position for which she possessed at least the minimum qualifications. The EEOC maintains that in failing to follow this policy, Northwestern discriminated against Widmont on the basis of her sex and recent pregnancy in violation of Title VII. The parties vigorously dispute whether the policy required defendant to give preference to an eliminated employee with the minimum qualifications over someone more qualified, whether these positions were actually available at the relevant time, whether Widmont possessed the requisite qualifications, and whether Northwestern was motivated by discriminatory reasons in not offering the positions to Widmont. Plaintiff contends that there are no material facts in dispute regarding the availability of and Widmont's qualifications for the respiratory specialist position. On this basis alone, plaintiff argues that it is entitled to summary judgment. Defendants have filed a cross-motion for summary judgment, claiming that plaintiff has no evidence of discrimination regarding any of the three positions.


 I. Evidence of Discrimination under Title VII

 As a preliminary matter, we note that the EEOC concedes in its summary judgment papers that the elimination of Widmont's position was not discriminatory, but rather occurred pursuant to a legitimate reduction in force. Thus, defendant's motion for summary judgment is granted as regards the claim of discriminatory termination stated in paragraph six of the complaint. We proceed to consider the summary judgment motions insofar as they pertain to plaintiff's claim of discrimination in the decision not to offer Widmont the three available positions.

 Resolution of the remaining issues in the cross-motions for summary judgment requires us to sift through the extensive exhibits presented by both parties to determine whether the case presents a triable issue of fact. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). "A genuine issue of material fact exists only where 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Dribeck Importers, Inc. v. G. Heileman Brewing Co., 883 F.2d 569, 573 (7th Cir. 1989) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). In considering such a motion, the court must view all inferences in the light most favorable to the nonmoving party. See Regner v. Chicago, 789 F.2d 534, 536 (7th Cir. 1986). Once the moving party has supported its motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings"; rather, the adverse party must set forth specific facts, by way of deposition, affidavit or otherwise, showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e).

 Title VII prohibits an employer from, among other things, "failing or refusing to hire or . . . discharging any individual, or otherwise . . . discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII has been amended by the Pregnancy Discrimination Act to clarify that the prohibition against discrimination on the basis of sex extends to discrimination on account of pregnancy: "Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k).

 The EEOC may prove employment discrimination under Title VII by one of two methods. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988). It may try to meet its burden "head on" by presenting direct evidence that pregnancy or sex was the determining factor in the employment decision. Id. In order to satisfy its burden of proof under the direct method, the plaintiff's evidence of discriminatory intent must "relate to the specific employment decision in question." Randle v. LaSalle Telecommunications, 876 F.2d 563, 569 (7th Cir. 1989) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 1791, 104 L. Ed. 2d 268 (1989)). Alternatively, the plaintiff may utilize the indirect, burden shifting method of proof originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and reiterated in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

 Under the burden-shifting method, the Title VII plaintiff first establishes a prima facie case of discrimination. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. Plaintiff must then show that defendant's reason is merely pretext. To establish pretext, the plaintiff must demonstrate by a preponderance of the evidence either "(1) that the employer was more likely motivated by a discriminatory reason, or (2) that the employer's proffered reason is unworthy of credence." Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 336 (7th Cir. 1991).

 Thus, under the burden-shifting method of indirect proof, plaintiff need not present any direct evidence of discrimination. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 372 (7th Cir. 1992). Rather, a plaintiff may prove its case "'by eliminating all lawful motivations, instead of proving directly an unlawful motivation.'" Oxman, 846 F.2d at 453 (citation omitted). As the Supreme Court has noted, "there may be some cases where the plaintiff's initial [prima facie] evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant's explanation." Burdine, 450 U.S. at 255. However, an "honest explanation of unequal treatment is not pretextual simply because it is poorly founded or unfair." Reed v. Amax Coal Co., 971 F.2d 1295, 1300 (7th Cir. 1992). The court does not "sit as a ...

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