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September 23, 1994

ELMA J. JEAN, Plaintiff,
WALGREEN CO., Defendant.


The opinion of the court was delivered by: WILLIAM T. HART

Plaintiff Elma Jean, a Haitian-born naturalized U.S. citizen, worked as a pharmacist for defendant Walgreen Co. from 1977 until she was discharged in 1991. Counts I through V of her complaint allege that Walgreen discriminated against her, harassed her, retaliated against her, and ultimately discharged her because of her national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981, as amended ("§ 1981"). Jean further claims in Count VI that her termination constitutes a retaliatory discharge in violation of public policy under Illinois statutory and common law. Defendant moves for summary judgment on all counts.

 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The movant must establish a lack of any genuine issue of material fact. Id. at 473. The nonmovant, however, must make a showing sufficient to establish any essential element for which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

 A plaintiff claiming disparate treatment under Title VII must ultimately prove intentional discrimination. Hong v. Children's Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993); Weihaupt v. American Medical Ass'n, 874 F.2d 419, 423-24 (7th Cir. 1989). Plaintiff can satisfy that burden either with direct evidence of discrimination or through the "indirect, burden shifting method of proof articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)." Id. Lacking any direct proof of discrimination, Jean must rely on the McDonnell Douglas framework. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (interpreting McDonnell Douglas).

 Under the McDonnell Douglas framework, plaintiff must first establish some variant of a prima facie case of racial discrimination. St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2746-47 (1993); see United States Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983) (prima facie case never intended to be rigid, mechanized or ritualistic); McDonnell Douglas, 411 U.S. at 802 n.13 (prima facie case will vary depending upon the type of case and the factual situation alleged). Establishment of the prima facie case creates a presumption which, in the absence of an explanation, would require a finding of discrimination. Hicks, 113 S. Ct. at 2748 & n.3. This presumption shifts the burden of production onto the employer, forcing it to articulate a legitimate, nondiscriminatory explanation for the action taken. Id. at 2748. Once the employer satisfies this burden of production, whatever its persuasive force, the presumption of discrimination no longer exists, and all that is left is the plaintiff's ultimate burden of persuading the trier of the fact of discrimination. Id.


 Elma Jean began her employment with Walgreen in 1977 as an "extra board," or relief, pharmacist, filling in as needed at Walgreen stores within the Chicago area. She later moved into a "registered pharmacist" position, working exclusively at one location. At some later point, Jean served as both an assistant store manager and a store pharmacist. Walgreen promoted her to "chief pharmacist" for its Markham, Illinois store in 1981. In 1988, the title of her position changed to "pharmacy manager."

 For her first ten years as chief pharmacist/pharmacy manager, Jean was supervised by Clarence Gaines. Audrey Neely replaced Gaines in January or February of 1991. On March 6, 1991, Jean attended a mandatory pharmacy manager's meeting, but was not paid for her attendance. Believing that non-Haitian pharmacy managers were paid, she filed a claim with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination based on national origin. There is no evidence that anyone at Walgreen ever mentioned the complaint to Jean.

 In her deposition, plaintiff testified that Neely gave her permission to grant a discount to Dr. Charles, even though plaintiff did not know if Charles had a discount card. Neely testified in her deposition that she told plaintiff she could not grant the discount without the card.

 Neely documented her findings and sent them to Steve Kroloff, Walgreen's company lawyer. The materials were turned over to the Loss Prevention Department. Loss Prevention representatives interviewed Jean on December 24, 1991. Plaintiff does not dispute evidence presented by Walgreen that she was questioned on the propriety of her actions, particularly her purchase of drugs to send to Haiti. In the course of the interview Jean mentioned that she knew that Christina O'Heari-Enyeazu, another pharmacist at the Markham store, had ordered drugs to take to Africa. Defendant presents evidence that Jean told the investigators that O'Heari-Enyeazu did not have a prescription for these drugs; plaintiff denies that she had any knowledge of impropriety.

 Loss Prevention Specialist Bennett reported this conversation to Neely. After discussing the situation with Raymond Drenon, Neely terminated Jean on December 26, 1991. O'Heari-Enyeazu, a black woman of Nigerian descent and Freeman, a black, native-born American were interviewed about the O'Heari-Enyeazu incident on January 6, 1992 and were later terminated for their participation in the O'Heari ...

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