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GARDUNO v. QUAKER OATS CO.

September 1, 1994

JOSE GARDUNO, Plaintiff,
v.
THE QUAKER OATS COMPANY, Defendant.



The opinion of the court was delivered by: JOAN HUMPHREY LEFKOW

 Joan H. Lefkow, Executive Magistrate Judge:

 Plaintiff, Jose Garduno, a Mexican American, worked for defendant, Quaker Oats Company ("Quaker"), from 1977 until his termination in November of 1991. PC at P1. *fn1" During those 14 years, Garduno was employed in various positions, first serving as an account representative in Tuscaloosa, Alabama. He rose through the ranks of the company, becoming an account supervisor and an account manager in Tyler, Texas, a regional sales training manager in Atlanta, a district manager in Houston, and a zone development manager in Dallas. PC at P2-7. In January, 1988, Garduno made a lateral transfer from zone development manager in the foods division to another zone development manager position in another division within Quaker. PC at P8. In June, 1989, Garduno accepted a position in the customer financial service division in Chicago, and in June, 1990, he became manager of that division. PC at P9-10. On November 7, 1991, Garduno was discharged from Quaker for falsifying his expense account record. PC at P17.

 Plaintiff does not deny that he was terminated for falsifying his expense account record because (1) he used frequent flier miles (that he had accumulated through business trips) to purchase tickets for business travel and then submitted phony receipts and was reimbursed by Quaker for tickets that he had never purchased; (2) in December of 1990 he went on business to the Fiesta Bowl in Arizona with his son who was not a Quaker employee and submitted the expense for this trip to Quaker for reimbursement; and (3) in August of 1991, he went golfing and later, when claiming reimbursement for this outing, misrepresented the costs of his golfing outing as a business lunch and dinner. Defendant's Statement of Undisputed Facts ("SUMF") at PP4-6.

 Plaintiff filed a timely charge of discrimination with the Illinois Department of Human Rights and the federal Equal Employment Opportunity Commission and received a "right-to-sue" letter dated December 21, 1992. PC at P18. Garduno filed the present lawsuit on November 25, 1992, alleging discrimination based on national origin under Title VII, 42 U.S.C. §§ 2000(e)-2 et seq., and promissory estoppel under Illinois law. *fn2" Jurisdiction is present. 28 U.S.C. § 1331, § 1367. Additional facts as pertinent to the two claims are set out below. The parties are presently before this court on defendant's motion for summary judgement.

 Standard of Review

 Summary judgement is appropriate 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 judgement as a matter of law. Fed. R. Civ. P. 56(c); Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1388 (7th Cir. 1993). When the party opposing the motion bears the burden of proof on a particular issue, it cannot rest on its pleadings alone; rather, it must affirmatively demonstrate by specific factual allegations that there is a genuine issue of material fact that necessitates a trial. Beard v. Whitley County REMC, 840 F.2d 405, 409-410 (7th Cir. 1988). Rule 56(c) requires entry of summary judgement if the non-moving party fails to come forth with evidence to refute the moving party's allegations in its motion for summary judgement. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The party opposing the motion must do more than merely raise "some metaphysical doubt as to the material facts" in order to survive summary judgement. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Even though all reasonable inferences are drawn in favor of the party opposing the motion, a scintilla of evidence in support of the non-movant's position will not defeat a motion for summary judgment. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). Where the factual allegations presented by the party opposing the motion would not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial and the district court should grant summary judgement. Anderson v. Liberty Lobby, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1570-71 (7th Cir. 1989). On the other hand, the summary judgement standard must be applied with "added rigor "in employment discrimination cases, due to the unique importance of intent and credibility. Kralman v. Illinois Dept. of Veterans' Affairs, 23 F.3d 150, 152 (7th Cir. 1994); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993).

 A. Title VII National Origin Discrimination Claim

 Title VII makes it "an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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. § 2000(e)-2(a)(1). Garduno claims that Quaker treated him differently because of his national origin, Mexican-American.

 1. The Prima Facie Case

 Where the disparate treatment of a single employee is at issue, a plaintiff can either produce direct or indirect evidence of discrimination. Kirk v. Federal Property Management Corp., 22 F.3d 135, 138 (7th Cir. 1994). In this case, Garduno relies on the indirect method of proof. Under this method, the plaintiff must first establish a prima facie case of employment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). To establish a prima facie case of national origin discrimination, the plaintiff is required to show that (1) he is a member of a protected class, (2) that he was doing his work well enough to meet his employer's legitimate expectations, (3) despite his performance he was discharged, and (4) his employer sought a replacement for him. Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1372, 128 L. Ed. 2d 48 (1994).

 Garduno has established the prima facie case. It is undisputed that Garduno is a Mexican-American and is therefore a member of a protected class. It is also undisputed that he was doing his job adequately, that he was terminated from his job, and that a replacement was sought for him. *fn3"

 2. Employer's Legitimate Reason for Discharge

 Once the plaintiff has made the prima facie showing the burden shifts to the defendant to come forward with a legitimate, non-discriminatory reason for its employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. Defendant has articulated a legitimate non-discriminatory reason for Garduno's termination. Defendant explains that plaintiff was terminated because he falsified his expense account records. This reason on its face is non-discriminatory under Title VII. See McCarthy v. Kemper Life Insurance Co., 924 F.2d ...


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