argue loudly on the phone with family members. Rather, Sakellarion contends that it was Quigley who argued constantly with family members on the telephone. Sakellarion insists that she was never insubordinate and denies that she crumpled up a written reprimand and pretended to use it as toilet paper. Sakellarion also notes that, with the exception of the referenced incident report, she always received excellent reviews, and she received a pay raise only three months before she was terminated.
Sakellarion asserts that she was not especially prone to taking Mondays off, although the records document that she was, and that she was never warned that doing so was disruptive to the department. She contends that in October 1993, she fractured her foot and was treated at Ravenswood Hospital, and was, therefore, forced to miss two weeks of work. Attached as Exhibit B to her Response is a copy of discharge instructions from the emergency room which indicate that she had either a sprain or fracture and that she was to use crutches.
Nothing on the form indicates that her rehabilitation required that she stay home from work.
With regard to the final incident prior to her termination, Sakellarion states that her daughter stayed with Sakellarion and her husband after she was released from the hospital until she was able to take care of herself. Sakellarion also asserts that she informed Quigley on Monday January 3, that she would need to miss the entire week due to her daughter's illness. However, she states that she only requested two days off, which Quigley granted. Sakellarion then contends that on each of the next three days, she spoke with Linderman who granted her subsequent requests for days off.
Federal Rule of Civil Procedure 56(c) provides that 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); Salima v. Scherwood South, Inc., 38 F.3d 929, 931 (7th Cir. 1994); Transportation Communications Int'l Union v. CSX Transp., Inc., 30 F.3d 903, 904 (7th Cir. 1994). Summary judgment is not a discretionary remedy and must be granted when the movant is entitled to it as a matter of law. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Associated Milk Producers, Inc. v. Meadow Gold Dairies, 27 F.3d 268, 270 (7th Cir. 1994), presenting only a scintilla of evidence will not suffice to oppose a motion for summary judgment. Walker v. Shansky, 28 F.3d 666, 671 (7th Cir. 1994). Nor will some metaphysical doubt as to the material facts suffice. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Moreover, the disputed facts must be those that might affect the outcome of the suit to properly preclude summary judgment. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). A dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, the non-moving party is required to go beyond the pleadings with affidavits, depositions, answers to interrogatories, and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
A. ADEA Claim
Sakellarion has not put forward any direct evidence of discrimination and is, therefore, proceeding under the indirect method of proof outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1972). Under the burden shifting method of McDonnell Douglas, the plaintiff must present evidence (1) that she was a member of the protected class, (2) she was meeting her employer's legitimate expectations with regards to her job performance, (3) her employment was terminated, and (4) her employer sought a replacement for her. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994).
Once the plaintiff establishes a prima facie case as delineated above, the burden shifts to the employer to articulate a legitimate reason for the employee's discharge. Id. If the employer is able to so articulate its reason for firing the employee, the burden shifts back to the employee to demonstrate that the employer's proffered reason is a pretext for age discrimination. Id. To meet this burden, the plaintiff may either present evidence that a discriminatory reason more likely motivated the employer, or that the purported explanation is unworthy of credence. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
Sakellarion has failed to establish a prima facie case of discrimination in two respects: (1) she has not presented evidence that she was living up to Judge & Dolph's legitimate expectations; and (2) she has not presented evidence that Judge & Dolph sought a replacement for her after she was terminated. Furthermore, even had she been able to establish a prima facie case, Defendants have articulated legitimate reasons for her discharge, and she has not presented any evidence indicating that those reasons are not worthy of credence.
Quigley's affidavit and supporting documentation submitted with the motion for summary judgment clearly establishes that Sakellarion was not meeting Judge & Dolph's legitimate expectations. The documents reveal that Sakellarion was prone to excessive absenteeism, with a particular proclivity for missing Mondays. Her self-serving statement that she did not miss an excessive amount of Mondays is blatantly contradicted by Judge & Dolph's attendance records. Sakellarion does not allege that these records are false; thus, it is merely her characterization of what constitutes an excessive amount which is at issue. However, her personal belief as to the quality of her Monday attendance record is not relevant, and disagreement about the proper characterization does not create a genuine issue of fact. See Gustovich v. AT&T Communications, Inc., 972 F.2d 845, 848 ("An employee's self-serving statements about his ability . . . are insufficient to contradict an employer's negative assessment of that ability"); Sample v. Aldi Foods, Inc., 1994 U.S. Dist. LEXIS 9618, No. 93-3094, 1994 WL 374231 (N.D. Ill. July 14, 1994) ("Personal evaluations of one's own work performance are not relevant".)
Moreover, it was Sakellarion's attendance record overall, and her repeated absences from work without adequate explanation, not just her repeated Monday absences, which constituted one of the reasons for her termination. Of the three instances in which Sakellarion failed to adequately inform her supervisor of her intention not to come to work that Defendants have posited as examples of her unreliability, Sakellarion only contends that the facts set forth regarding her daughter's asthma attack are inaccurate. Thus, she essentially admits that she was absent without proper consent on the other two occasions.
Her generalized assertion that she always reported to Quigley or Linderman when she needed to skip work due to illness does not serve to rebut Defendants' specific examples of her failure to do so. "Rule 56 requires [the plaintiff] to produce specific facts that cast doubt upon [the employer's] stated reason for its action or raise significant issues of credibility." Rand v. CF Indus., Inc., 42 F.3d 1139, 1146 (7th Cir. 1994).
Sakellarion's testimony with regard to the final incident prior to her termination also fails to raise a genuine issue of material fact. Sakellarion asserts that she called Quigley on Monday January 3, 1994, and requested that day off as a floating holiday and the following Tuesday off as a sick day. Notwithstanding that this was against company policy, Quigley allowed it. Sakellarion contends that she indicated that she would probably need the remainder of the week off, but only asked for those two days during the Monday conversation. Quigley asserts that Sakellarion said nothing about taking the entire week off. This conflict is insignificant, however, given that Sakellarion only asked for Monday and Tuesday off.
Sakellarion's contention that she called Linderman on the each of the next three days and Linderman granted her requests for those days off may create a genuine issue as to whether she called Linderman. However, it does not create a genuine issue of fact precluding summary judgment because Quigley's testimony is that Linderman never informed her about Sakellarion's calls, if indeed she did call. Thus, Quigley was under the impression that Sakellarion never called to ask for Wednesday, Thursday, and Friday off. As a consequence of this impression, Quigley had reached the limit of her patience with Sakellarion and determined that she would be fired. That the decision may have been upon erroneous information does not create an inference of discrimination. "The issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. Rather, it addresses the issue of whether the employer honestly believes in the reasons it offers." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992).
Once again, the court notes that this event constituted only one of many instances which Defendants have used as examples of Sakellarion's unreliability. In addition to her unreliability, Defendants have posited her poor work performance when she was on the job as an additional factor in its decision to terminate her employment. Sakellarion merely counters the assertions of poor performance and attitude with self-serving denials and protestations of adequate performance. An employee's opinion of her work performance does not raise an issue of fact for trial. Gustovich, 972 F.2d at 848. Sakellarion's assertion that she did not pretend to use the written reprimand as toilet paper is irrelevant. She received the reprimand as a result of her insubordination, and that she may not have added insult to injury by such a grotesque pantomime does not create a genuine issue of fact as to her original insubordination.
Contrary to her contention, that Sakellarion received a raise a few months before her termination does not necessarily indicate that Judge & Dolph was happy with her performance. It is the employee's performance at the time of the discharge that is determinative. Rand, 42 F.3d at 1146. Furthermore, an employer may have a many reasons for giving raises to an employee despite her performance rather than because of it. For instance, an employer may be giving across the board salary increases, or it might be attempting to raise the moral of a marginal employee with positive reinforcement. Thus, the mere fact of a recent salary increase, without more, is not necessarily indicative of an employer's satisfaction with an employee's performance, or even that she is meeting the bare minimum requirements.
Thus, Sakellarion has failed to demonstrate that she was performing up to the reasonable expectations of Judge & Dolph. She has also failed to present evidence which a reasonable jury could infer that Defendants' stated reasons were a pretext in that she was actually fired because of her age rather than because she was unreliable, surly towards customers, insubordinate to her superiors, and careless in her work.
In addition to the above deficiencies, Sakellarion has failed to present any admissible evidence that Judge & Dolph sought a replacement for her. Quigley's affidavit states that Judge & Dolph has not hired anyone to replace Sakellarion and that her duties were split among three other employees. In an affidavit supporting her Equal Employment Opportunity Commission charge, Sakellarion asserted that a woman in her thirties was transferred from another department at Judge & Dolph to replace her. There is no foundation for this assertion and it would not be admissible at trial. See Fed. Rule Evid. 602. Therefore, Sakellarion has failed to present evidence demonstrating that there is a genuine issue for trial on this point and summary judgment must be granted for this reason as well.
B. FMLA Claim
Sakellarion also claims that Defendants violated the FMLA, 29 U.S.C. § 2615(a)(1), by terminating her after she allegedly took time of to care for her daughter after the daughter suffered an asthma attack. Sakellarion has failed to demonstrate that there is a genuine issue of fact for trial on this count, and the court grants Defendants' motion for summary judgment.
The FMLA provides that, under certain circumstances, an employer must allow an employee up to twelve workweeks of leave during any twelve-month period to care for a child who has a serious health condition. 29 U.S.C. § 2612(a)(1)(C). Sakellarion has failed to present evidence demonstrating that her daughter was suffering from a serious health condition as defined by the FMLA, 29 U.S.C. § 2611(11), and to present evidence that her daughter was incapable of self-care as required by the FMLA, 29 U.S.C. § 2611(12)(B).
The FMLA defines a serious health condition as:
an illness, injury, impairment, or physical or mental condition that involves-
(A) inpatient care in a hospital, hospice, or residential medical care facility; or