at 6.) Therefore, this Court accepts those elements as proven and
will only analyze the remaining elements of the prima facie case.
a. Meeting Employer's Legitimate Job Expectations
A plaintiff cannot show discrimination if she does not prove
that she met her employer's legitimate job expectations. Coco v.
Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir. 1997).
Further, to show the legitimacy of a job expectation, "the court
must determine whether the employer communicated those
expectations to the employee. . . ." Dale v. Chicago Tribune
Co., 797 F.2d 458, 463 (7th Cir. 1986). The employee cannot move
on to the pretext stage by arguing that, even if she failed to
meet the employer's legitimate expectations, she was fired for a
discriminatory reason. Coco, 128 F.3d at 1179.
In Fang v. Village of Roselle, No. 95-C5175, 1997 WL 242905,
at *3 (N.D.Ill. May 5, 1997) the court held that a genuine issue
of material fact existed as to plaintiff's performance. There,
the defendant claimed it terminated plaintiff because of his poor
performance, but plaintiff asserted that defendant never informed
him that his performance was inadequate. Id. Further, the
record contained very little documentation of plaintiff's alleged
inadequate performance. Id. The court also found it suspicious
that defendant did not terminate plaintiff immediately, or at
least closer to the time when defendant first claimed plaintiff's
performance was inadequate. Id. Finally, the court found it
suspicious that the plaintiff received a raise a few weeks after
defendant claimed she wanted to terminate him. Id.
Similarly, Ms. Murawski alleges that Tri Service never informed
her that her performance was unsatisfactory or that her job was
in jeopardy. She also alleges that she never received any
warnings that Tri Service might terminate her, nor did her
personnel file contain any warnings. (Pl.'s 12(N) Add. Facts ¶
7.) Ms. Murawski concedes to making occasional mistakes on quotes
and that she sometimes failed to send them out in a timely manner
(Def.'s 12(N) Reply ¶ 3.) Ms. Murawski also asserts throughout
her testimony the importance of accuracy and timeliness of the
quotes. (Def.'s Ex. 15 at 90, 99; Def.'s Supp. Ex. A at 89.) She
admitted that Ms. Cilia brought certain matters to her attention
which were important, and that those matters were Ms. Cilia's
honest beliefs and opinions. (Def.'s Ex. 15 at 123-24.)
Nonetheless, she contests whether Ms. Cilia ever "counseled" her
or brought other matters to her attention, because she was
unhappy with her performance. (Pl.'s 12(N) ¶ 24.)
The Follow-Up Notes, which purportedly show Ms. Cilia's
continuing criticisms of Ms. Murawski, are not definitive proof
that Ms. Murawski was not meeting Tri Service's legitimate
expectations. Ms. Murawski does not doubt that Ms. Cilia's Review
and page one of the Follow-Up Notes were Ms. Cilia's honest
opinions, and again, she did admit that certain items on the
Review contained a list of areas in which Ms. Cilia wanted her to
improve. However, contrary to Tri Service's contention (Def.'s
12(M) ¶ 36), Ms. Murawski asserted that she never saw page two of
the Follow-Up Notes until litigation in this case began, and did
not know what Ms. Cilia thought when she wrote page two. (Def.'s
Ex. 15 at 160.) Also, given the uncertain completion date of the
Follow-Up Notes, the court is uncertain as to whether the
Follow-Up Notes establish Tri Service's dissatisfaction with Ms.
Notwithstanding Ms. Murawski's admissions, a genuine issue of
material fact is raised as to whether Tri Service felt her
performance was not meeting its expectations, because of the
events surrounding the December 13 sales meeting. Mr. Valentini's
announcement that Ms. Cilia's upcoming maternity leave would mean
more work for Ms. Murawski appears to suggest that Ms. Murawski
was performing adequately. At least one could infer that Tri
Service had enough confidence in her to give her more
responsibility. Mr. Valentini's conflicting testimony that he
anticipated Ms. Murawski still working at Tri Service in March,
but also, that Tri Service considered terminating her, raises an
issue of credibility. A reasonable jury could conclude that Ms.
Murawski's performance was meeting Tri Service's legitimate
expectations if Mr. Valentini anticipated her working
there in March and told her she would have more responsibilities.
Therefore, given the evidence above, Ms. Murawski has raised a
genuine issue of material fact as to whether her performance met
Tri Service's legitimate expectations.
b. Disability as Reason for Discharge
The plaintiff satisfies the final element of the prima facie
case if the evidence reasonably suggests that the employer would
not have terminated the plaintiff if she was non-disabled.
Leffel, 113 F.3d at 794. The Leffel court illustrated how a
plaintiff can satisfy the fourth element if she had "wide
discretion in the performance of her duties one day but is
confronted with a laundry list of manufactured criticisms and
confining performance standards the next day [which could] raise
an inference that . . . the only intervening event was the
disclosure that she is disabled." Id. Leffel also recognized
that a showing of disparate treatment alone is sufficient to
satisfy the fourth element of the prima facie case. Id.
Ms. Murawski has arguably shown that both disparate treatment
and the suspicious timing of her termination suggest that Tri
Service would not have terminated her if she was not disabled.
Tri Service hired Ms. Johnson, a non-disabled employee, in Ms.
Murawski's place immediately after Ms. Murawski's termination.
Although Tri Service claims that it entered negotiations with Ms.
Johnson months before Ms. Murawski's MS disclosure, Ms. Murawski
has raised a genuine issue of material fact as to whether Tri
Service actually would have terminated her were it not for her
MS. Mr. Valentini initially disapproved of the idea of rehiring
Ms. Johnson, which is consistent with Tri Service's policy of not
rehiring employees who quit. However, damaging to Tri Service's
case is the fact that it ultimately did hire Ms. Johnson, and it
did so after learning of Ms. Murawski's MS, just days after the
sales meeting during which it was announced that her duties would
shortly be increased. Therefore, Ms. Murawski has shown that Tri
Service treated her less favorably than a non-disabled
As discussed above, Ms. Murawski's disclosure of her MS just
days after Mr. Valentini said she would have more
responsibilities, coupled with her termination three weeks later,
raises a genuine issue of material fact as to whether Tri Service
would have terminated her if she was not disabled. Therefore, the
court finds that Ms. Murawski has satisfied the fourth element of
the prima facie case. Ms. Murawski, having established a prima
facie case, shifts the burden to Tri Service to proffer a
legitimate, non-discriminatory reason for her termination.
2. Tri Service's Legitimate, Non-discriminatory Reason for
Terminating Ms. Murawski
The defendant's burden at this juncture is relatively easy to
establish, because it is only a burden of production. Dale, 797
F.2d at 463. Tri Service alleges that it terminated Ms. Murawski
because of her unsatisfactory performance as an Inside Sales
Assistant. Ms. Murawski's termination letter states the reason
for her dismissal as "Performance. Unable to perform the daily
tasks required by the job." (Def.'s Ex. 22, Ex.A.) Therefore, Tri
Service has met its burden, and now Ms. Murawski must show that
its reason is a pretext.
Pretext "means a lie, specifically a phony reason for some
action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.
1995). The court will not evaluate whether the employer made a
mistake or a bad decision but "`whether the employer honestly
believes in the reasons it offers. . . .'" Rand v. CF Indus.,
Inc., 42 F.3d 1139, 1145 (7th Cir. 1994) (quoting Kralman v.
Illinois Dept. of Veterans' Affairs, 23 F.3d 150, 156-57 (7th
Cir. 1994)). In other words, the court does not "sit as a
super-personnel department that reexamines an entity's business
decisions." Dale, 797 F.2d at 464. If the employee presents
evidence showing that the employer's reason for termination is
false, the court must determine if a reasonable jury could find
that the employer actually discriminated against the employee.
Rand, 42 F.3d at 1146-47 (citations omitted). Thus, "[the]
issue becomes one of credibility in determining whether the
belief is genuinely held." Bechold v. IGW Sys., Inc.,
817 F.2d 1282, 1285 (7th Cir. 1987).
The court in Martin v. General Mills, Inc., No. 95-C2846,
1996 WL 648721, at *8 (N.D.Ill. Nov.5, 1996) held that the
plaintiff did not show even a "hint of pretext" as to the
defendant's reasons for his termination. Also, plaintiff did not
refute defendant's complaints about his performance — he actually
admitted to making many costly errors. Id. at *9. Plaintiff
also admitted that his supervisor repeatedly corrected him about
his performance, and he could not keep up with his workload.
Id. Finally, the court found that the plaintiff made no effort
to show that the defendant did not honestly believe in its reason
for terminating him. Id.
Unlike the plaintiff in Martin, Ms. Murawski has set forth
sufficient evidence to at least raise an inference that Tri
Service's stated reason for discharging her is a mere pretext.
Crucial to this determination is the December 13 meeting where
Mr. Valentini made the announcement that Ms. Murawski would have
an increased workload. Arguably, if Ms. Murawski's performance
was truly deficient and not meeting expectations, Tri Service
would not have contemplated entrusting her with even more
responsibilities after Ms. Cilia's expected departure. Ms.
Murawski admitted to making occasional errors, but she never
admitted that those errors were the reason Tri Service terminated
her. She also never admitted that her performance was inadequate.
Further, Mr. Valentini admitted that he anticipated Ms.
Murawski working at Tri Service in March of 1997. Interestingly,
he testified that her termination had already been planned months
before, but he did not want to make it "public knowledge" at the
meeting that Tri Service considered terminating her. (Pl.'s Ex. L
at 116.) He claimed that he did not want anyone at the meeting,
including Ms. Murawski, to know Tri Service's alleged plans.
(Pl.'s Ex. L at 116.) Mr. Valentini also testified that Ms.
Murawski was not fired immediately in November, when Ms. Cilia
claimed her performance was inadequate, because they did not want
to fire her "around the holidays." (Pl.'s Ex. L at 112.) Mr.
Valentini also stated that Tri Service did not have a replacement
for her in November, which is another reason she was not fired
immediately. (Pl.'s Ex. L at 112.) In November, however, Tri
Service knew that Ms. Johnson had expressed an interest in
returning. (Pl.'s Ex. L at 112-13.)
This court finds Tri Service's various reasons unconvincing,
given both Mr. Valentini's contradictory testimony and the
suspicious timing of events surrounding Ms. Murawski's disclosure
of her MS two days after the meeting. The court also notes that
the "holidays" were technically over by January 10, so Tri
Service could have terminated her before this date if the
"holidays" were really a consideration. Given the conflicting
testimony, a credibility issue is raised, and a material fact
exists as to whether Tri Service honestly believes that it
terminated Ms. Murawski because of her poor performance.
Also undermining Tri Service's stated reason is the testimony
given by Mr. Day, Ms. Johnson and Mr. Valentini regarding the
content of the Review. Thus, Mr. Day thought the review was
merely an outline of what Ms. Cilia expected of Ms. Murawski and
not an evaluation, (see n. 2), and both Mr. Valentini and Ms.
Johnson testified that they would not have gathered from the
review that Ms. Murawski was about to be terminated. (Pl.'s Ex. F
at 201-02; Pl.'s Ex. L at 83-84.) Mr. Day's testimony that the
Review was "just an outline" of Ms. Cilia's expectations supports
Ms. Murawski's contention that the Review was only a
"reiteration" of her job duties and not a criticism of her
performance. Further, Ms. Johnson's and Mr. Valentini's testimony
concerning the Review does not support Tri Service's assertion
that the Review documents Ms. Murawski's inadequate performance.
The testimony of these witnesses, especially Mr. Valentini,
whom Ms. Cilia consulted regarding terminating Ms. Murawski,
raises a material issue as to whether Tri Service terminated Ms.
Murawski because she was not meeting Tri Service's legitimate
expectations. Although a record of inadequate performance is not
necessary, without such evidence here, Ms. Murawski has made
a showing of possible pretext given the above mentioned evidence,
including Ms. Cilia reassuring her in August that she was a
"keeper." In addition, only a credibility determination can
resolve the questionable date of the Follow-Up Notes, as well as
the issue raised by Tri Service that the Notes were not created
for purposes of litigation. (Def.'s Reply 15 at 7.) Ms. Cilia
offers contradictory testimony as to when she actually wrote the
various entries, and whether she added entries after Ms.
Murawski's termination in anticipation of litigation. (Pl.'s
12(N) ¶ 24; Def's 12(N) Reply ¶ 24.)
Tri Service offers no specific evidence that Ms. Murawski was
not performing to expectations at the time of her termination
three weeks after her MS disclosure. Ms. Cilia denies asking Ms.
Murawski whether her MS would affect her job or that she told Ms.
Murawski that Tri Service feared she could not handle the added
responsibilities once Ms. Cilia left for maternity leave.
However, if proven at trial, the trier of fact could conclude
that Tri Service's reason for terminating Ms. Murawski is a
pretext. If Tri Service feared that Ms. Murawski's MS would
prevent her from taking on the increased responsibilities, as
announced at the sales meeting, and therefore terminated her, the
reason for termination is discriminatory. The trier of fact must
decide the credibility of the witnesses, because this Court
cannot resolve such matters.
Further, even if Tri Service honestly believed Ms. Murawski's
mistakes were grounds for termination, a reasonable jury could
conclude that Ms. Murawski no longer made such intolerable
mistakes by the time the December 13 sales meeting took place.
Otherwise, Tri Service would not have made its apparent showing
of confidence in her by announcing that she would basically take
over Ms. Cilia's work in her absence. The trier of fact could
find that the intervening event of Ms. Murawski's MS disclosure,
after the meeting, explains Tri Service's sudden change of heart
about entrusting her with an increased workload. Therefore, Ms.
Murawski has sufficiently rebutted Tri Service's proffered reason
for termination and shown that pretext may exist.
Seemingly fatal to Ms. Murawski's charge of discrimination is
her admitting that the reasons given by Tri Service are its
honest belief. Vanasco v. National Louis Univ., 137 F.3d 962,
966 (7th Cir. 1998). Thus, Ms. Murawski did admit to making some
mistakes and that she had no reason to doubt that Ms. Cilia
honestly believed the various matters she brought up to her.
However, Ms. Murawski claimed that Ms. Cilia was just reiterating
her job duties — not criticizing her performance. Contrary to Tri
Service's contention, Ms. Murawski never admits in the record
that her performance was inadequate or that she thought Tri
Service's reason for terminating her was its honest belief.
Further, the Court was unable to locate numerous pages of Ms.
Murawski's deposition which purportedly support Tri Service's
argument, as well as certain other arguments it sets forth. This
Court will not scour the entire record in search of missing
pages.*fn7 For example, Tri Service claims "Murawski admitted to
making several of the mistakes which served as the reasons for
termination and admits that Ms. Cilia brought them to her
attention. (Murawski Dep. pp. 89, 121.)" (Def.'s Reply at 5.)
Surprisingly, page 121 is missing, and page 89 only contains
testimony by Ms. Murawski admitting that she made some errors.
(Def.'s Supp. Ex. A at 87.) Nowhere on page 89 does she admit, as
Tri Service wishes the Court to accept, that those mistakes were
the reason for her termination or that Ms. Cilia brought them to
Def.'s 12(N) Reply contains numerous citations to page 121 as
well as to pages 80, 81, 92, 158, 162, and 191 of Ms. Murawski's
deposition. Tri Service's brief also cites to certain of the
missing pages. For instance, page 162 of Ms. Murawski's
deposition allegedly contains an admission by Ms. Murawski that
she did not believe the Review was
"doctored for purposes of litigation. (Murawski Dep. p. 162.)"
(Def.'s Reply at 7.) However, page 162 is inexplicably missing.
The Supplement to Def.'s 12(N) Resp. does not contain these pages
either. The Court is perplexed as to the omission of these,
seemingly crucial pages. Finally, Tri Service's Memorandum in
Support of Summary Judgment barely contains any citations to the
record at all. The Court will not scour the record and strongly
cautions that Tri Service provide all referenced materials in the
future, which will save the Court much time in trying to
determine the facts in the case.
Given the evidence in the record, nothing supports Tri
Service's argument that Ms. Murawski admitted that her
performance was inadequate or that inadequate performance was the
reason for her termination. Further, the conflicting testimony as
to what Tri Service told Ms. Murawski was the reason for her
discharge is an issue for the trier of fact to resolve. Also
undermining Tri Service's arguments for summary judgment is the
testimony regarding the content of the Review and Follow-Up Notes
and whether it criticized Ms. Murawski's work or merely set forth
aspects of her duties. Further, the court could not find any
evidence to support the claim that Ms. Murawski admitted the
Review and Follow-up notes were not doctored in anticipation of
this suit, and therefore the date Ms. Cilia created the notes is
an issue for trial, as well.
Finally, a suggestion of pretext exists, because Tri Service
hired a non-disabled individual in Ms. Murawski's place.
Especially suspect are the circumstances surrounding Ms.
Johnson's hiring. Although Tri Service alleges that it had
planned to rehire Ms. Johnson before it knew of Ms. Murawski's
MS, Ms. Murawski has raised sufficient evidence to rebut Tri
Service's reason and show pretext. Ms. Murawski has sufficiently
demonstrated genuine issues of material fact as to her
discriminatory discharge claim. As mentioned previously, the
court need not proceed at this point to discuss Count II of Ms.
Murawski's amended complaint.
IT IS THEREFORE ORDERED that:
Tri Service's Motion for Summary Judgment on Counts I and II
be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that:
Ms. Murawski's Motion for Summary Judgment on Count II be, and
the same hereby is, DENIED.