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MURAWSKI v. TRI SERVICE

February 12, 1999

ALEETA MURAWSKI, PLAINTIFF,
v.
TRI SERVICE, INC., DEFENDANT.



The opinion of the court was delivered by: Keys, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant's Motion for Summary Judgment on Counts I and II, and Plaintiff's Motion for Summary Judgment on Count II. For the following reasons, this Court denies both the Defendant's and Plaintiff's motions.

BACKGROUND

Plaintiff Aleeta Murawski worked for Defendant Tri Service, Inc. as an Inside Sales Assistant from February 6, 1996, through January 10, 1997, at which time she was terminated. (Def.'s 12(M) ¶ 2, 44.) Ms. Murawski's duties included writing price quotes to manufacturers and customers, maintaining sales literature inventory, providing customers with sales materials, working on long-term projects and "writing up jobs for the equipment Tri Service manufactured." (Def.'s 12(M) ¶ 2.)

Tri Service hired Ms. Murawski to replace Michelle Johnson, who left Tri Service in February 1996 to take a job with another employer, after having worked there since 1993. (Def.'s 12(M) ¶¶ 7, 9.) Ms. Johnson had trained Ms. Murawski for two weeks prior to her leaving Tri Service and provided her with several pages of instructions as to how to perform the job. (Pl.'s 12(N) ¶ 9.) Susan Cilia directly supervised Ms. Murawski (Def.'s 12(M) ¶ 5) and "was responsible for assessing Ms. Murawski's performance and evaluating her work." (Def.'s 12(M) ¶ 10.) Fred Valentini is "Owner and Vice President of Sales and Marketing" and was Ms. Cilia's supervisor. (Def.'s 12(M) ¶ 15, 18(c).)

In August 1996, Ms. Murawski asked Ms. Cilia whether she was a "keeper." (Def.'s 12(M) ¶ 62.) Ms. Murawski explained to Ms. Cilia that she was asking her whether Tri Service intended to keep her on as an employee, to which Ms. Cilia responded affirmatively. (Pl.'s 12(N) ¶ 62; Def.'s 12(M) ¶ 62, Ex. 15 at 170.) On September 5, 1996, Ms. Murawski sent a memo to Ms. Cilia and Mr. Valentini asking them to reconsider Ms. Cilia's prior refusal to give her a review and salary increase.*fn1 (Def.'s 12(M) ¶ 15.)

Ms. Cilia did, however, formally review Ms. Murawski on November 1, 1996. (Def.'s 12(M) ¶ 19.) Ms. Cilia brought a two to three page document ("Review") to the review meeting which listed items pertaining to Ms. Murawski's job that Ms. Cilia discussed with her. (Def.'s 12(M) ¶ 19; Pl.'s 12(N) ¶ 19.) Ms. Cilia pointed out areas in which Ms. Murawski needed improvement, such as time management, handling phone calls, and possibly working overtime to finish long-term projects.*fn2 (Pl.'s 12(N) ¶ 20; Def.'s Ex. 15 at 159-60.) Ms. Cilia also prepared Follow-Up Notes after Ms. Murawski's review, and they discussed certain items on the list concerning a few of Ms. Murawski's assignments.*fn3 (Pl.'s 12(N) ¶ 24.)

At a sales meeting on December 13, 1996, Mr. Valentini announced that Ms. Cilia would begin maternity leave in March 1997. (Pl.'s 12(N) ¶ 18.) He also announced that Ms. Murawski would receive more work as a result. (Pl.'s Ex. L at 115.) A few days later, on December 18 or 19, Ms. Murawski told Ms. Cilia that she suffers from multiple sclerosis ("MS"). (Def.'s 12(M) ¶ 27.) Ms. Murawski had not disclosed her MS to anyone at Tri Service serving in a managerial capacity before this time. (Pl.'s 12(N) ¶ 30.) Ms. Murawski admitted that her MS had no effect on her performance. (Def.'s Ex. 15 at 55.) However, she did explain to Ms. Cilia that, on one occasion, she had needed to use a typewriter, because her MS flared up and prevented her from writing legibly. (Def.'s 12(M) ¶ 34; Pl.'s 12(N) ¶ 31.) Ms. Cilia allegedly responded to Ms. Murawski's MS disclosure by asking her "What about the job?" (Def.'s Ex. 15 at 44.) Ms. Murawski informed Ms. Cilia, that, "despite her MS condition, she was doing her job and would continue doing it." (Def.'s 12(M) ¶ 29.) Ms. Murawski also told Ms. Cilia that her doctor had advised her not to "overwork," because she has the form of MS that flares up. (Pl.'s 12(N) ¶ 31, Ex. D at 38.)

Tri Service terminated Ms. Murawski on January 10, 1997, at a meeting attended by Ms. Murawski, Ms. Cilia, and John Richards, CFO of Tri Service. (Def.'s 12(M) ¶¶ 44, 18(a).) Tri Service claims it terminated Ms. Murawski because of her inadequate performance. (Def.'s 12(M) ¶ 44.) Ms. Murawski claims she was never told that her performance was unsatisfactory. (Pl.'s 12(N) ¶¶ 3, 14.)

Subsequent to Ms. Murawski's termination, Tri Service rehired Ms. Johnson, a non-disabled individual, for the Inside Sales Assistant position. (Pl.'s 12(N) Add. Facts ¶ 14.) Ms. Murawski claims that Tri Service terminated her because she suffers from MS. (Def.'s 12(M) ¶ 61.)

On January 28, Ms. Murawski filed a Charge of Discrimination with the EEOC, alleging that Tri Service discriminated against her by terminating her after learning that she had a disability. (Def.'s 12(M) ¶ 52.) The EEOC issued Ms. Murawski a Notice of Right to Sue (Def.'s 12(M) ¶ 54), and on August 28, 1997, she filed suit against Tri Service for discriminatory discharge. (Def.'s 12(M) ¶ 55.) She later amended her complaint and included a second count, charging that Tri Service failed to reasonably accommodate her disability. (Def.'s 12(M) ¶ 56.)

DISCUSSION

I. Standard for Summary Judgement

Summary judgement is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgement as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Initially, the moving party bears the burden of showing that the record contains no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The governing substantive law establishes which facts are material. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The non-moving party must present more than a "metaphysical doubt as to the material facts" to survive summary judgment. Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Additionally, "mere conclusory" allegations are not enough. Nowak v. St. Rita High School, 142 F.3d 999, 1002 (7th Cir. 1998). The non-moving party will not survive summary judgement if she cannot present sufficient evidence to support each element of her case on which she will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

Courts do not make "credibility determinations nor choose between competing inferences" at the summary judgment stage. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir. 1993). Further, the court must view the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. In addition, pursuant to Northern District of Illinois Local Rule 12(N), the parties must support all disputed facts with "specific references to . . . parts of the record. . . ." The Seventh Circuit has articulated that courts need not "scour the record" in an attempt to locate the relevant information supporting the 12(N) claims. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994).

II. Standard for Analysis of Discriminatory Discharge Claim

The Americans with Disabilities Act of 1990 ("ADA") prohibits employers from discriminating against qualified individuals with a disability. 42 U.S.C. § 12112(a) (1994). The ADA recognizes two types of discrimination: discriminatory discharge and failing to provide reasonable accommodations.*fn4 Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996) (citing 42 U.S.C. § 12112(a), (b)(5)(A)).

A plaintiff may use either direct or indirect evidence in order to establish a discriminatory discharge. Leffel v. Valley Fin. Serv., 113 F.3d 787, 792 (7th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997). Direct evidence requires the employer to acknowledge that a discriminatory motive caused the plaintiff's termination. Troupe v. May Dept. Stores, Co., 20 F.3d 734, 736 (7th Cir. 1994). Circumstantial evidence falls under the rubric of direct evidence, but instead of an acknowledgment of discrimination by the employer, circumstantial evidence "provide[s] a basis for drawing an inference of intentional discrimination." Id. (emphasis added). In using direct or circumstantial evidence, the court determines whether "but for" the disability, the defendant would not have terminated the plaintiff. Hoffman v. MCA, Inc., 144 F.3d 1117, 1121 (7th Cir. ...


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