Healthcare Corp., 757 F. Supp. 888, 893 n.9 (N.D. Ill. 1991).
Initially, ComEd argues that since Elguindy never applied for a particular supervisory position, she has not satisfied the second element of her prima facie case. Mot. for Summ. J. at 4. However, when employees do not apply for particular promotions, but are rather sought out by management, the employee need only establish that had she known of an available position, she would have applied, Box v. A & P Tea Co., 772 F.2d 1372, 1377 (7th Cir. 1985), cert. denied, 478 U.S. 1010, 92 L. Ed. 2d 724, 106 S. Ct. 3311 (1986), and--in cases where an employer "hands out promotions on its own initiative in a nonselective, serial fashion"--accepted the offered position. Loyd, 25 F.3d at 523.
Elguindy is unable to point to specific supervisory positions in which she expressed an interest. Loyd, 25 F.3d at 523; Elguindy Dep. at 113. However, it is undisputed that employees were not told that they were placed in the Promising Candidate Personnel Candidate Program. Def.'s Facts P 37; Def.'s Ex. 5. Moreover, employees were not told when particular supervisory positions became available. Elguindy Dep. at 114. Given this state of affairs, Elguindy need only show that had she known of a particular position, she would have applied, Box, 772 F.2d at 1377, and accepted an offer. Loyd, 25 F.3d at 523. She has met this burden. First, Elguindy expressed her desire to be promoted to her supervisors both orally and in writing. Elguindy Dep. at 291. Further, she requested that she be enrolled in courses teaching managerial and supervisory skills. From these expressions of interest in supervisory positions, it is reasonable to infer that Elguindy would have applied for (and accepted) a supervisory position had she been made aware of one.
ComEd points to the Box decision to support its assertion that Elguindy's expressions of interest in supervisory positions are inadequate to show that she met the second element of her prima facie case. Mot. for Summ. Judgment at 4; Def.'s Reply at 4; Box, 772 at 1372. The plaintiff in Box cited three instances which she indicated a general desire for a promotion, in her EEOC complaint, when she told her supervisor that she wanted "to move up, in order to make more money, bookkeeper, assistant manager, whatever," and in an affidavit in which she stated she wanted to receive training so she could "advance, for instance, into the assistant manager position." 772 F.2d at 1372. In the instant case, Elguindy has shown that she explicitly expressed her desire to be promoted to a supervisory position. Unlike the plaintiff's vague statements in Box, it is reasonable that Elguindy would have applied to a supervisory position had one been made available to her. Moreover, interest in a particular employment position, as ComEd suggests is necessary under Box, has been satisfied by Elguindy's expressed desire (which was communicated to her supervisor) to be promoted to a supervisory position in certain departments. Pl. Dep. at 113. See also Loyd, 25 F.3d at 523.
ComEd maintains that Elguindy has failed to show that there were any available supervisory positions in her department, and therefore has failed to satisfy the second element of her prima facie case. Mot. for Summ. J. at 5. Both parties agree that no supervisory positions became available in the Nuclear Services Department from 1990-1993. Pl.'s Facts P 44; Jirka Dep. at 11-12. However, Elguindy asserts that although no supervisory positions became available in her department, such positions became available in other departments. Elguindy Aff. P 15; Pls. Ex. I. Although ComEd has shown that there were no opportunities for Elguindy to be promoted in her own department, it has failed to respond to her argument that she could have been promoted to other areas in the company. ComEd's assertion that plaintiff "cannot demonstrate that a particular supervisory position was available at ComEd," Mem. at 4, is open to reasonable debate in light of plaintiff's submissions in Ex. I which show that twelve individuals who were 35 years old or younger were promoted to departments different than those in which they worked between 1990 and 1992. See also Pls. Ex. A., P 15. This evidence demonstrates that supervisory positions within the Nuclear Services Department (to which plaintiff's department belonged) were available. Accordingly, there is at the very least a genuine issue of material fact as to the availability of supervisory positions to which Elguindy could have been promoted but for age discrimination.
Next, ComEd argues that Elguindy was not qualified for a supervisory position due to her inability to effectively communicate with the nuclear stations. Mot. for Summ. J. at 6. It states that the only evidence proffered by Elguindy is her own "self-assessment of her work performance," which is insufficient to support a prima facie case. Id. at 7; Sirvidas, 60 F.3d at 378. Elguindy is correct in replying that although her own self-assessment is insufficient at the pretext stage of analysis, to establish a prima facie case a plaintiff may rely "solely upon the employee's testimony concerning the quality of his work." Lindsey, 757 F. Supp. at 893 (citing Williams v. Williams Electronics, 856 F.2d 920, 923 n.6 (7th Cir. 1988)). Moreover, like the plaintiff in Lindsey, Elguindy has offered objective evidence as well as her own subjective evaluation.
Elguindy has submitted correspondence from various nuclear station personnel indicating that she was performing well. See Plaintiff's Ex. D. Many of these letters were addressed to Elguindy's supervisors. In addition, her 1990-1992 performance ratings were that she "fully meets expectations." Pl.'s Facts PP 14, 19, 26. Finally, many of the 1992 questionnaires returned from the operating stations rated her as a "good" communicator. Pl.'s Ex. G.
Although there is substantial evidence that Elguindy's communication skills needed improvement, see Farrar Dep. at 143; Pl.'s Facts PP 23, 27; Pl.'s Ex. G, this at most creates a genuine issue of material fact as to whether Elguindy was indeed qualified for a supervisory position. Again, the Court emphasizes that at this stage of the pleadings, it cannot evaluate the strength of a plaintiff's claims to succeed on the merits. Rather, all that is necessary for the Plaintiff to survive the instant motion is for her to show that a reasonable trier of fact could find that she was qualified for a supervisory position. See Liberty Lobby, 477 U.S. at 255. Elguindy has met that burden.
Finally, ComEd states that since Elguindy cannot show that younger employees were promoted over her, she cannot satisfy the last two elements of her prima facie case. Mot. for Summ. Judgment at 7-8. ComEd argues that participation in the Promising Management Personnel Program and the Candidate Development List was not a prerequisite for obtaining a promotion to supervisory positions. Def.'s Facts P 36. Moreover, it states that age was not a consideration in determining who was added to either management development list. Def.'s Facts P 35; Farrar Dep. at 103.
However, the core of Elguindy's claim is that since she and all other employees over the age of 35 were kept off the "Under Thirty-Five" list and later prevented from participation in the Promising Management Personnel Program, she was effectively denied the opportunity to be considered for a supervisor position. Pl.'s Mem. in Opposition to Summ. J. at 7-8. She alleges that although there was no guarantee that inclusion on the list or participation in the PMPP would guarantee a promotion, ComEd management used the Program as a de facto prerequisite for promotion. Pl.'s Facts P 36.
Elguindy has proffered evidence which raises a genuine issue of material fact as to whether ComEd, either directly or through its use of the PMPP or Candidate Development List, discriminated against older individuals. Elguindy has submitted various documents which indicate that most, if not all, of the employees promoted to supervisory positions were younger than her. Pl.'s Ex. I, L. The description of the PMPP stated that "age is no longer important" in deciding whether an individual is placed on the list, Def.'s Ex. 5, raising the inference that at some time age was used as a criteria for the program. Even after ComEd changed the "Under Thirty-Five" list to the "Promising Management Personnel Program," it still was the case that individuals over the age of 35 were precluded from the program. Pl.'s Ex. L. It is a reasonable inference to conclude that ComEd maintained a policy, perhaps as an unwritten continuation of the "Under Thirty-Five" list, of passing over older employees in favor of younger ones.
Although ComEd has submitted evidence, in the form of deposition testimony, that the management development lists did not guarantee a promotion, and that any "Under Thirty-Five" list was no longer used at ComEd, Farrar Dep. at 40-41, 58-59, 103; Jirka Dep. at 130-33, such evidence indicates a genuine issue of material fact which prevents this Court from entering summary judgment. Whether any management development plans at ComEd were either in existence or applied discriminatorily as a de facto prerequisite to promotions are questions for the trier of fact.
In sum, given the procedural posture of this case and the evidence submitted by both sides, this Court concludes that Elguindy has shown that there are genuine issues of material fact which, if resolved in her favor, would establish a prima facie case of age discrimination. Although ComEd has provided substantial evidence which may defeat Plaintiff's prima facie case, weighing such evidence is not the role of this Court in deciding ComEd's motion for summary judgment. Liberty Lobby, 477 U.S. at 255.
B. ComEd's Legitimate Nondiscriminatory Reasons for Non-Promotion
Repeating its reasons for arguing that Elguindy has not proven her prima facie case because she was not qualified for any supervisory positions, ComEd asserts that those same reasons establish a non-discriminatory reason for not promoting Plaintiff. Def.'s Reply at 12. Therefore, the burden should shift back to Elguindy to show that ComEd's reasons were merely a pretext for unlawful discrimination. McDonnell-Douglas, 411 U.S. at 800. However, as discussed above, the existence of a genuine issue of material fact precludes this Court from finding that ComEd has established a non-discriminatory reason for not promoting Elguindy.
Elguindy's claim is essentially that she was qualified for a promotion to a supervisory position, and that ComEd did not promote her because of her age. ComEd responds that it was Elguindy's inability to listen and communicate effectively with the stations that prevented her from being promoted. Both sides have proffered evidence to support their claim. Elguindy has cited evaluations and correspondence from the stations that indicate that she was performing adequately. Pl.'s Ex. A; Pl.'s Ex. D; Pl.'s Ex. G. In contrast, ComEd has cited other evaluations and performance ratings which confirm its claim that Elguindy needed to improve her communication skills. Elguindy Dep. at 216; Def.'s Ex. 2; Def.'s Facts P 25. It was these communication problems that ComEd maintains precluded Elguindy from promotion. Elguindy responds that the reasons were mere pretexts for age discrimination.
This Court finds that Elguindy has raised a material issue of fact as to whether the reasons given by ComEd for not promoting her were legitimate or pretextual. ComEd's proffered reason for Plaintiff's non-promotion must be viewed in light of several other facts. In the past, ComEd maintained a policy of favoring younger employees in placing individuals in management development programs. See supra at 15-16. Joseph Jirka, Elguindy's supervisor, knew of such policy, even though he may have been mistaken as to whether the policy remained in effect. Pl.'s Facts P 15; Def.'s Facts P 15. Elguindy also has submitted evidence which indicates that most, if not all, of the employees promoted to supervisory positions were under 35 years of age. Pl.'s Ex. I; Pl.'s Add'l Facts PP 10-21. Finally, Elguindy's last performance evaluation in 1993, which resulted in an "exceptional" rating, indicates that she had remedied her prior alleged communication problems.
Given this background, this Court finds that Elguindy has raised a triable issue on whether ComEd's reasons for not promoting her were genuine. Therefore, summary judgment is inappropriate.
See Tibbitts v. Van Den Bergh Foods Co., 859 F. Supp. 1168, 1174 (N.D. Ill. 1994) ("in determining whether [plaintiff] presents sufficient evidence to raise a triable issue, the court considers the totality of the evidence rather than evaluating each portion piecemeal").
The Court's decision is bolstered by the Seventh Circuit's warning that a grant of summary judgment which turns on the issue of the intent of the employer should be approached with "special caution." Courtney v. Biosound, Inc. 42 F.3d 414, 425 (7th Cir. 1994) (quoting Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir. 1989). Courtney's reasoning is applicable in this case:
Although we are mindful that the ADEA is not a vehicle for reviewing the propriety of business decisions, the materially conflicting evidence in this case, when viewed in the light most favorable to [the plaintiff], raises a question of fact as to the believability, not necessarily the propriety of [the defendant's conduct.] Thus, even if the evidence presented by [the plaintiff] does not compel the conclusion that [the defendant] discriminated against him . . . at a bare minimum it suffices to defeat [the defendant's] summary judgment motion.
Courtney, 42 F.3d at 425; see also Collier v. The Budd Company, 66 F.3d 886, 1995 U.S. App. LEXIS 27501, No. 95-1227, 1995 WL 567133 (7th Cir. Sept. 26, 1995) (doubt about employee's proffered reasons should be resolved by trier of fact); Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993) (rejection of employer's proffered reasons for employment decision may permit the trier of fact to infer the ultimate fact of discrimination).
II. Elguindy's Retaliation Claim
To establish her retaliation claim, Elguindy must show that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action by her employer; and (3) a causal link exists between her protected activity and the adverse employment action. Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir. 1992). Elguindy maintains that after she filed the instant suit, Chris Herzog, her supervisor, unfairly reprimanded her for her conduct at a ComEd meeting held on March 17, 1994. Pl.'s Mem. at 13-14. She states that she was merely asserting her position and that none of the station representatives present at the meeting were offended. Pl.'s Facts P 39. ComEd responds by asserting that Herzog's reprimand was justified because Elguindy's statements offended several of the station representatives at the meeting. Mot. for Summ. J. at 11. Therefore, Elguindy has failed to establish the "causal link" between the filing of her suit and the reprimand. Mot. for Summ. J. at 11.
As with Plaintiff's failure to promote claim, there exists an issue of material fact as to whether there was a causal link between Elguindy's reprimand and her filing this suit. Chris Herzog testified that he spoke with one station representative who was "disturbed" at the way the meeting went. Herzog Dep. at 7-9, 13-16. In addition, John Forrest thought Elguindy used an inappropriate tone of voice at the meeting. Forrest Dep. at 35-36. In response, Elguindy states that no one was offended at the meeting. Pl.'s Facts P 39.
The questions of whether Plaintiff offended representatives present at the meeting, whether a reprimand was warranted, and whether the reprimand was commensurate with her conduct are all questions for a trier of fact. Although it appears that Herzog's conduct was done in response to Plaintiff's conduct at the March 17 meeting and not the instant case, the question of Herzog's intent is still undetermined. As such, it is inappropriate for this Court to make a determination on Elguindy's retaliation claim at this time. See Juarez, 957 F.2d at 321.
ComEd cites various decisions to support its claim that Elguindy should not be insulated from legitimate disciplinary conduct simple through filing a discrimination lawsuit. Mot. for Summ. J. at 12; Dodd v. Administrator of Veteran's Affairs, No. 81-3434, slip op. at 7 (N.D. Ill. Aug. 9, 1983); Brenner v. Brown, 36 F.3d 18 (7th Cir. 1994); Moore v. Borg-Warner Corp., No. 84-9768, 1986 WL 10993 at * 1 (N.D. Ill. Feb. 21, 1986). However, both Dodd and Brenner involve cases in which the merits of plaintiffs' claims were determined. Thus, at this stage, in which all inferences must be drawn in favor of Elguindy, and the Court must deny ComEd's motion if there exists a disputed issue of fact, these cases are unavailing. Finally, in Moore, the defendant's reasons for its conduct were based on undisputed facts. In the case at bar the reason for the reprimand, i.e., whether Elguindy offended any station representatives, is disputed.
As with her failure to promote claim, Elguindy has shown that there exists a genuine issue of material fact as to Herzog's reason for reprimanding her. Therefore, summary judgment on her retaliation count is inappropriate.
Accordingly, Defendant Commonwealth Edison's Motion for Summary Judgment is DENIED. A Final Pretrial Order in this case will be due on December 1, 1995. A status hearing will be held on November 1, 1995, at 9:00 a.m., for the purpose of setting a firm trial date.
United States District Judge
October 16, 1995