(1986). In deciding a motion for summary judgment, the court must read the facts in a light most favorable to the non-moving party. Id., 477 U.S. at 255.
III. Discrimination on the Basis of Religion
To set forth an individual case of intentional discrimination under Title VII, a plaintiff has two options; she may satisfy her burden of proof by offering direct evidence of discriminatory intent or demonstrate such intent indirectly by following the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under this framework, the plaintiff must first establish a prima facie case by a preponderance of the evidence. Sample v. Aldi, 61 F.3d 544, 547 (7th Cir. 1995). Thereafter, the defendant has the burden of articulating a legitimate non-discriminatory reason for the adverse action. Id. Once the defendant meets her burden of production, the presumption of discrimination created by the prima facie case disappears, and the plaintiff must demonstrate that the defendant's proffered reasons are merely a pretext for discrimination. Id. At all times, the plaintiff carries the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against her. Id.
In this case, plaintiff attempts to establish her prima facie case by both direct and indirect evidence. To support her case with direct evidence, plaintiff alleges that defendants terminated her because she was "'very vocal,' disrespectful, and unprofessional." These words, plaintiff asserts, are simply code words for discrimination; they are based on a stereotype of the "Jewish American Princess." Plaintiff offers these same evidence to demonstrate pretext. Because, as discussed below, this court concludes that plaintiff has made out a prima facie case under the indirect, burden-shifting method of proof, and that plaintiff's prima facie case merges with her arguments on pretext, it need not address whether plaintiff has provided sufficient direct evidence to establish a prima facie case.
To make a prima facie case for discharge of the grounds of religious discrimination based on the indirect method under the McDonnell Douglas framework, plaintiff must show that: (1) she was a member of a protected class; (2) she was doing her job well enough to meet her employer's legitimate expectations; (3) she was discharged; and (4) her employer sought a replacement for her. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1243 (7th Cir. 1992). The parties do not dispute that plaintiff satisfies elements 1, 3, and 4 of her prima facie case.
Plaintiff alleges that, to demonstrate the second element of her prima facie case, she need only "put on objective evidence that [she] is sufficiently competent to satisfy the legitimate expectations of an employer." Pilditch v. Board of Educ. of City of Chicago, 3 F.3d 1113, 1117 (7th Cir. 1993), cert. denied, Pilditch v. Gool, 510 U.S. 1116, 127 L. Ed. 2d 385, 114 S. Ct. 1065 (1994). Plaintiff avers that she met the objective requirements of her position of purchasing assistant. For example, her attendance record was excellent, and her error ratio for typographical and other errors on purchase orders was within the department standard and was better than several of her co-workers. Defendants do not dispute this evidence, but allege that these were not the reasons for plaintiff's termination; she was terminated because of her unprofessional demeanor and inappropriate comments to customers and co-workers. Plaintiff responds that defendant's subjective assessments are actually a pretext for discrimination; i.e., she was being stereotyped as a "Jewish American Princess," and documentation of such criticism was in retaliation for her complaints of discrimination. Under such circumstances, this court finds that "issue of legitimate performance is best merged with pretext." Fisher, 979 F.2d at 1243.
Defendant argues that plaintiff's prima facie case contains an additional requirement: she must show that the non-Jewish employees who "suffered from her shortcomings were not fired." Plaintiff has offered some evidence to suggest that non-Jewish employees who were reproached for swearing, rated low in communication skills, or reprimanded for making anti-Semitic remarks to co-employees were not fired. Defendant disputes that such employees' isolated instances of unprofessional conduct compare with plaintiff's ongoing uncooperative behavior and poor interpersonal skills. Notwithstanding these arguments, defendant has met its burden of production by articulating a legitimate non-discriminatory reason. Accordingly, this court need not address further the merits of plaintiff's prima facie case. Sample, 61 F.3d at 548 ("'Where the defendant has done everything that would be required of him had the plaintiff properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.'") (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983)).
Defendant contends that plaintiff was terminated because of her unacceptable behavior, poor job performance, and failure to improve on her overall performance. To withstand defendant's motion for summary judgment, plaintiff must demonstrate pretext by either "directly persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Plaintiff admits that she does not know whether defendants terminated her because of her religion, but argues that the reasons proffered for her termination are false. Specifically, plaintiff asserts that defendants did not take plaintiff's complaints of discrimination seriously. For example, Luna's "Jewtown" remark was never documented or reported to the Human Resources Department. Moreover, plaintiff alleges that, after she complained of discrimination and threatened to file a lawsuit, defendant began secretly soliciting and documenting complaints about her performance so that they would have a record to support a future termination decision. Although plaintiff has not provided extensive evidence of pretext, the facts that (a) defendant's investigation of plaintiff's complaints did not include documentation or reports to the Human Resources Department, cf. Kantar v. Baldwin Cooke Co., 1995 U.S. Dist. LEXIS 17330, 1995 WL 692022 (N.D. Ill. Nov. 20, 1995) (record revealed that the defendant regarded seriously and thoroughly investigated the plaintiff's complaints), and that (b) defendant kept a record of complaints against plaintiff where (i) no such records were kept for defendant's other employees and where (ii) plaintiff would not have access to or be able to comment on them raises enough questions to withstand defendant's motion for summary judgment.
IV. Retaliatory Discharge
Title VII mandates that an employer may not discriminate against any employee for opposing any practice made unlawful by Title VII. 42 U.S.C. § 2000(e)-3(a). To establish a prima facie case of retaliatory discharge, plaintiff must demonstrate that: (1) she was engaged in statutorily protected expression; (2) an adverse employment action was taken against her; and (3) a causal link exists between the protected expression and the adverse action. Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1457 (7th Cir. 1994). If plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, non-discriminatory reason for its action. Id. Once defendant articulates such a reason, the burden shifts back to plaintiff to establish that defendant's proffered reasons are pretextual. Id.
Both parties agree that plaintiff engaged in statutorily protected expression by complaining of Luna's anti-Semitic remarks and that plaintiff's termination is an adverse action. Plaintiff also asserts that her additional, albeit unspecific, complaints of discrimination to defendant were "protected expressions," and that her complaints spurred a chain of adverse reactions by defendant which lead to her discharge. This chain includes mediocre three-month and six-month performance reviews, secret documentation of complaints about plaintiff which defendant did not maintain on any other employee, and a failure to discuss such complaints with plaintiff or provide her an opportunity to respond to them. In particular, plaintiff points to a memorandum sent by DeGroot to a representative in the Human Resources Department stating that: "The entire department is on edge and afraid to even approach Aileen, for fear . . . [they'll] be written up in her notebook she keeps by her side for the 'lawsuit' she's told everyone about." Plaintiff claims that this memo is evidence that defendant terminated plaintiff because she complained of discrimination and contemplated filing a lawsuit to redress her injuries.
Again, plaintiff has not offered extensive evidence of pretext on her claim of retaliatory discharge. However, defendant does not dispute that it kept confidential documents on plaintiff's performance, and that it did not, nor had it ever, kept such documentation on another employee. Although defendant may have had good intentions in following such procedures, such intentions will not be assumed in ruling on summary judgment. See Sarsha v. Sears Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993) (summary judgment standard is applied with added vigor in employment discrimination cases where intent and credibility are crucial issues). Because the court must make all reasonable inferences in favor of the plaintiff, defendant's motion is denied.
For the reasons set forth above, plaintiff's motions to strike are denied in part and granted in part, and defendant's motion for summary judgment is denied. At the status conference set for November 20, 1996, the court will set a final pretrial schedule.
ENTER: November 18, 1996
Robert W. Gettleman
United States District Judge
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