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LUIS v. BAXTER HEALTHCARE CORP.

July 11, 1996

SHIRLEEN LUIS, Plaintiff,
v.
BAXTER HEALTHCARE CORPORATION, Defendant.



The opinion of the court was delivered by: DENLOW

 Plaintiff Shirleen Luis (hereinafter "Luis"), a forty-one year old woman, brings this action under the Age Discrimination in Employment Act, 29 U.S.C. ยง 621, et. seq., alleging her employer, defendant Baxter Healthcare Corporation (hereinafter "Baxter") discriminated against her on the basis of age. Baxter now moves for summary judgment on the grounds that Luis has not established a prima facie case of discrimination and that there are legitimate, non-discriminatory reasons for her discharge *fn1" The court held oral argument on June 26, 1996 and has reviewed the voluminous documentation submitted by the parties. For the reasons set forth below, Baxter's motion for summary judgment is hereby granted.

 I. FACTUAL BACKGROUND

 Baxter is a health care business, which operated a Prescription Service Division in Lincolnshire, Illinois. (Koontz Aff. P 1). The mail order pharmacy employed over 450 employees, and filled prescriptions for Baxter's customers. (12 M P 2). On December 12, 1989 Baxter hired Luis to work as a technician in the mail order pharmacy department. (Koontz Aff. P 2).

 Baxter's attendance policy provided that an employee would be subject to discipline, up to and including discharge, if an employee exceeded 10 "occurrences". (Def. Ex. B). This policy and its guidelines also allowed an employee to "make-up" time for certain pre-approved absences. (Def. Ex. C). However, make-up time was allowed on an "exception basis only", under the following circumstances:

 
(1) A request for make-up time, for up to a maximum of three hours, per week, was submitted in writing from the employee in advance;
 
(2) All of the employee's vacation, personal and sick days were exhausted prior to requesting make-up time;
 
(3) The make-up time request was for pre-approved medical reasons only; and
 
(4) The circumstances were so unusual that the employee would not be able to see a doctor on his or her own time. Id.

 On June 29, 1992, Baxter informed Luis that she must submit a written request for any further make-up time requests, specifying dates, times of her appointments and reasons why she could not get her dental work done during non-work hours. (Def. Ex. N). Luis refused to provide this information and insisted that she be allowed to make-up time on her own terms. (Koontz Aff. P 15). Baxter attempted to work out a solution with Luis, and offered her several options to minimize the number of occurrences that she would incur by continuing to make non-qualifying appointments during work time. For example, Baxter informed Luis that she could: 1) use vacation days or personal days for her appointments; 2) leave work at 11:30 a.m. (take half a day); or 3) transfer to second shift. (Def. Ex. O). Luis refused each of these options and did not explain why she could not schedule her appointments during non-working hours. (Koontz Aff. P 17). Luis left work on July 17, 1992 but was not formally terminated until October 9, 1992. *fn2" (Def. Ex. F-G, I).

 II. SUMMARY JUDGMENT STANDARD

 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 Corporation v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Sarsha v. Sears Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993).

 When reviewing the record on summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmovant. Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 667 (7th Cir. 1995). To avert summary judgment, however, plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, (1986). A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A summary judgment proceeding is not a vehicle for the resolution of factual disputes; it is designed to determine whether there ...


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