claimed that she was "professionally slandered" and that she was
disciplined in violation of her rights. (Id.)
On July 15, 1988, Rudd sent MacRae a memorandum stating that
she would schedule a meeting with her to discuss the issues
presented in the previous meeting. Rudd noted that several
members of her staff requested to meet with MacRae regarding
Brandow's behavior toward her. MacRae informed Rudd that if any
staff members wanted to schedule an appointment with her they
were welcome to do so. No staff members contacted MacRae
directly, but on July 20, 1988, she received a letter signed by
four of Rudd's subordinates requesting a meeting at the school.
On July 25, 1988, Mary Garcia ("Garcia"), the school secretary,
contacted MacRae by a separate letter and requested that she not
be included in the complaint against Brandow. She further stated
that she did not witness any of the conduct Rudd claims she had.
In a phone conversation several weeks later, Garcia informed
MacRae that Rudd was harassing her and trying to get her to say
things about Brandow that were not true.
Shortly thereafter, on September 23, 1988, MacRae received
another memorandum from staff members requesting a meeting with
her. This memorandum was initialed only by the school's social
worker, JoAnn Statum ("Statum"), and Garcia. During this time,
Rudd was preparing statements for the four complaining employees.
She first prepared handwritten statements and then typed
statements dated July 1988.*fn2 All alleged inappropriate
behavior by Brandow. Three days later, Garcia again contacted
MacRae to inform her that Rudd forced her to type a letter
containing falsehoods about Brandow.
MacRae subsequently met with Whitehall to discuss the matter.
They were concerned that Rudd was intimidating staff members in
furtherance of her complaints against Brandow. On October 17,
1988, Garcia again contacted MacRae to inform her that she wanted
to be disassociated with Rudd's complaint. MacRae received a
similar letter from Thelma Johnson ("Johnson"), a teacher, and
one of the four individuals who signed the original letter.
MacRae also received a packet from another signatory, Ruth
Couderc ("Couderc"), the school Matron. Couderc had refused to
sign the statement that Rudd had prepared and requested that she
sign. Couderc returned the document to Rudd, explaining: "I
return this original document, not dictated or prepared by me,
unsigned as the allegation or charge is untrue and was never
witnessed by me." (Rudd Dep., Ex. 23.) Couderc mailed copies to
Ultimately, one statement was signed by Statum, who had earlier
canceled a scheduled meeting with MacRae. The 1988 statement
alleged that Brandow behaved unprofessionally during a meeting in
1986. Brandow allegedly placed his foot on Statum's desk so that
"his genital area was in direct view" of her face, and at some
point "manipulated" his crotch area. (Def.12(M) Statement Ex. K.)
CARC immediately initiated an investigation. Brandow denied the
allegations in a meeting with Whitehill. On October 19, 1988,
Whitehill and MacRae met with Statum. During the meeting, Statum
said that there had been an incident with Brandow, but she did
not consider it sexual harassment. To her it was an "invasion of
her space." (Id. Exs. M & N.) Statum told Whitehill and MacRae
that she signed the letter only because of pressure by Rudd.
In the next two months, MacRae received calls from Theresa
Scott ("Scott"), and Barbara Zuick ("Zuick"), two teachers at the
school. Both informed her that the allegations were lies. Scott
further noted her concerns in this matter because Rudd was her
supervisor, and Zuick informed MacRae that Rudd threatened to
charge her with insubordination when she refused to sign a
statement. In December 1988, Rudd submitted various memoranda
describing Brandow's inappropriate conduct. Included with her
submissions was a cover letter with signature lines for six
employees, which Rudd explained was "to verify that each staff
read and received a copy of the documented incidents." (Rudd
Dep., Ex. 21.) The signature lines were for the four individuals
who signed the initial letter to MacRae, as well as for Scott and
Zuick. Garcia, Statum and Scott signed the cover letter
indicating they "read and received" the statements. Johnson,
Zuick and Couderc's lines were not signed; however, Rudd added
notations that they were either mailed or received.
On the same day that MacRae received Rudd's packet, Rudd sent a
memorandum to Zuick regarding her rejection of the statement. In
the memorandum, Rudd stated:
It was my responsibility as Director of Mary Alyce
School to ask you additional questions about Mr.
Brandow [sic] alleged behavior in your presence. You
stated to me that "you might have said Mr. Brandow
was nervous," gives credence to the fact, [sic] the
[sic] behavior was discussed with me by you at times
so stated in the memo.
Mrs. Zuick, please be aware that this is the second
incident where you have attempted to recant your
statements to me regarding facts which you personally
related to me.
Mrs. Zuick[,] I am legally obligated to submit
statements of this nature to the Department of Human
Mrs. Zuick[,] I am anticipating a continuous
professional relationship with you as Head-Teacher
[sic] of Mary Alyce School.
(Rudd Dep., Ex. 22.)
Zuick promptly responded, informing Rudd that Rudd's statements
were incorrect and that Rudd had misconstrued her statements
about Brandow. Zuick believed that Brandow always acted
professionally. After mailing her response to Rudd, Zuick
forwarded copies to MacRae. Around this time Scott also sent a
memorandum to MacRae in which she denied the statement in Rudd's
letter. She stated that she never had any complaints about
As part of the investigation into Rudd's allegations, MacRae
interviewed Zuick, Garcia and Johnson. Each informed MacRae that
Rudd's allegations were fabricated, and that she was lying about
the entire situation. The investigation soon concluded with a
determination that Rudd's accusations were unfounded and that she
abused her position. CARC found that staff relations were
severely damaged by Rudd's actions, and consequently, that Rudd
should be removed from her position. CARC officials nevertheless
decided to offer her another position in the agency at the same
rate of pay.
On January 17, 1989, Rudd began her new job as Director of
Supportive Parenting. The position was part of a new CARC program
in which Rudd had expressed interest and which she would develop.
The program's purpose was to counsel and assist mentally retarded
young women who became pregnant. Rudd did not have supervisory
responsibilities and reported directly to Whitehill.
CARC initially funded the program, but due to its limited
budget it soon sought outside funding. However, CARC's efforts
were unsuccessful. In September 1990, Bill Schneider
("Schneider") replaced Whitehill as Executive Director. In
December, Schneider sent Rudd a memorandum asking that she send
him any leads she had for funding. Schneider noted that the
Illinois Legislature intended to rescind part of the state income
tax and informed Rudd that such an event would "have a decided
effect on the Agency's budget and on your program." (Rudd Dep.
Ex. 34.) On February 7, 1991, Schneider reiterated the need for
funding to Rudd and stated: "We will be unable to continue this
program if we do not secure funding by July 1. Obviously if we do
not secure funding this would jeopardize your position with the
agency." (Id. at Letter dated February 7, 1991.) A similar
letter followed on April 11, 1991, in which Schneider informed
Rudd "that without major funding, your program and your
employment with CARC will end on June 30, 1991." (Id. at Letter
dated April 11, 1991.)
Ultimately, CARC did not receive funding and Schneider notified
Rudd by letters dated June 10 and 18 that her employment would
end on June 28, 1991, due to lack of funding. In the letters,
Schneider outlined Rudd's severance pay and other available
benefits. Rudd responded by contesting Schneider's decision. She
asserted that she was never
informed that her position was contingent upon her securing
funding for the program. Rudd further argued that ending the
program was "at best premature." (Rudd Dep. Ex. 44.)
Nevertheless, pursuant to requests by Schneider, she provided
CARC with suggested severance terms. Finally, on June 28, 1991,
Schneider decided to terminate the program.
On December 19, 1991, Rudd filed a charge of discrimination
with the Illinois Department of Human Rights ("IDHR") against
CARC, claiming that she was terminated in retaliation for "openly
opposing sexual harassment. . . ." (Id., Ex. 51.) The IDHR
dismissed the charge for lack of substantial evidence and the
decision was affirmed by the Illinois Human Rights Commission.
Rudd also filed a charge with the Equal Employment Opportunity
Commission, which, in 1996 issued a right to sue letter.
In addition to seeking redress from CARC, in 1995 Rudd sought
Social Security Disability Insurance payments. At a hearing
before an Administrative Law Judge ("ALJ"), Rudd testified that
she stopped working because the stress made it impossible for her
to endure a medical condition she had developed called
inflammatory bowel syndrome. Following the hearing, the ALJ
concluded that Rudd had been disabled within the meaning of the
Social Security Act since June 30, 1991, and that she was
entitled to disability insurance benefits.
Finally, on October 18, 1996, Rudd filed the present action
alleging that CARC wrongfully discharged her in retaliation for
filing sexual harassment charges with CARC against Brandow. CARC
now moves for summary judgment, arguing that: (1) Rudd should be
judicially estopped from asserting that she was terminated for
"opposing sexual harassment;" and (2) because Rudd cannot
establish a causal link between her opposition to the harassment
and her termination.
A. Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure provides
that 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 judgment as a matter of law."
Fed.R.Civ.P. 56(c). "An issue of fact is genuine only `if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.'" Smith v. Severn, 129 F.3d 419, 426
(7th Cir. 1997) (quoting Newell v. Westinghouse Elec. Corp.,
36 F.3d 576, 578 (7th Cir. 1994)) (citation omitted).
"One of the principal purposes of the summary judgment rule is
to isolate and dispose of factually unsupported claims or
defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). When considering all the
evidence presented in a motion for summary judgment, a court
cannot make credibility determinations. See Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). The court must "view the record and all reasonable
inferences drawn from the record in the light most favorable to
the nonmoving party." Sample v. Aldi, Inc., 61 F.3d 544, 546
(7th Cir. 1995).
"If the non-moving party bears the burden of proof on an issue,
that party may not rest on the pleadings and must instead show
that there is a genuine issue of material fact." Id. at 547.
"[A] party will be successful in opposing summary judgment only
when they present definite, competent evidence to rebut the
motion." Severn, 129 F.3d at 427 (citations and internal
quotation marks omitted). A "scintilla of evidence," or evidence
that is "merely colorable" or "not significantly probative," is
insufficient. Anderson, 477 U.S. at 249-50, 252, 106 S.Ct.
2505. Furthermore, "a plaintiff's speculation is not a sufficient
defense to a summary judgment motion," Slowiak v. Land O'Lakes,
Inc., 987 F.2d 1293, 1295 (7th Cir. 1993), nor are self-serving
assertions lacking factual support in the record. See McDonnell
v. Cournia, 990 F.2d 963, 969 (7th Cir. 1993) (citing Kornacki
v. Norton Performance Plastics, 956 F.2d 129 (7th Cir. 1992)).
Moreover, "[i]f the factual context renders the claims asserted
by the party opposing summary judgment implausible,
the party must `come forward with more persuasive evidence to
support their claim than would otherwise be necessary.'"
McDonnell, 990 F.2d at 967 (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986)).
Ultimately, the court must decide "whether the evidence
presents sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a
matter of law." Severn, 129 F.3d at 427. Accordingly, "if the
evidence presented by the parties is subject to conflicting
interpretations, or if reasonable minds could differ as to its
significance," summary judgment must not be granted. O'Connor v.
Chicago Transit Auth., 985 F.2d 1362, 1366 (7th Cir. 1993).
B. Judicial Estoppel
As its first basis for summary judgment, CARC asserts that it
is entitled to invoke the doctrine of judicial estoppel. CARC
claims that the doctrine precludes Rudd from claiming that she
was terminated in retaliation for her complaints of sexual
harassment because she testified before the ALJ that she left
CARC due to her inflammatory bowel syndrome. The court agrees.
The doctrine of judicial estoppel is an "equitable concept
`intended to prevent the perversion of the judicial process.'"
Medcom Holding Co. v. Baxter Travenol Lab., Inc.,
106 F.3d 1388, 1396-97 (7th Cir. 1997) (quoting In the Matter of
Cassidy, 892 F.2d 637, 641 (7th Cir. 1990)). It "prevents a
party that has taken one position in litigating a particular set
of facts from later reversing its position when it is to its
advantage to do so." Levinson v. United States, 969 F.2d 260,
264 (7th Cir. 1992). "The principal is that if you prevail in
Suit # 1 by representing that A is true, you are stuck with A in
all later litigation growing out of the same events." Astor
Chauffeured Limousine Co. v. Runnfeldt Inv. Corp.,
910 F.2d 1540, 1547 (7th Cir. 1990); see also Chaveriat v. Williams Pipe
Line Co., 11 F.3d 1420, 1428 (7th Cir. 1993) ("By making them
choose one position irrevocably, the doctrine of judicial
estoppel raises the cost of lying.") The doctrine serves "to
protect the courts from being manipulated by chameleonic
litigants who seek to prevail, twice, on opposite theories."
Levinson, 969 F.2d at 264.
While the Seventh Circuit has noted that there is no precise
definition which can be attached to the doctrine, the court has
identified three prerequisites to its application:
First, the later position must be clearly
inconsistent with the earlier position. Also, the
facts at issue should be the same in both cases.
Finally, the party to be estopped must have convinced
the first court to adopt its position; a litigant is
not forever bound to a losing argument.
Ezekiel v. Michel, 66 F.3d 894, 904 (7th Cir. 1995) (quoting
Levinson, 969 F.2d at 264). If these elements are established, a
party may be estopped from departing from its previous position.
See Cassidy, 892 F.2d at 642. However, the Seventh Circuit
cautions that judicial estoppel is a matter within the court's
discretion, and should not be invoked where it would work an
injustice, where the inconsistency was inadvertent, or if there
is only an appearance of an inconsistency and the positions may
be reconciled. See id. Finally, although the doctrine is called
judicial estoppel, it is equally applicable when a party seeks
to repudiate a favorable order from an administrative proceeding
in a subsequent judicial proceeding. See Chaveriat v. Williams
Pipe Line Co., 11 F.3d 1420, 1427 (7th Cir. 1993); see also
DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 191 (7th Cir.
Turning to the first of the prerequisites — the inconsistent
positions — Rudd now claims that she was terminated because she
opposed sexual harassment. In the hearing before the ALJ, the ALJ
noted that Rudd alleged that she quit due to her inflammatory
bowel syndrome, which "is exacerbated by the stress of
employment." (Rudd Dep. Ex. 50 at 2.) Rudd contends that this is
inaccurate and that the ALJ misconstrued her testimony in his
opinion. A review of her testimony belies her claim:
Q: And why did you stop working in June of '91?
A: June of 91, I had to quit because of the
stress-related work that I was doing at the time. Two
years prior I had left the school . . . so that . . .
89, I had left the school proper and went into
another program with young adults. The school had —
was too much stress for me and I couldn't handle it —
I had become ill a that time, and thinking a change
with working with adults, it would do better. But the
environment, just working with handicapped at the
time was too much for my system.
Q: And was the reason you resigned was because it was
too much stress?
A: Too much stress, right.
(Def.'s 12(M) Statement, Ex. P (Transcript of audiotape of Social
Security Administration hearing).)
Clearly, Rudd's position in this case is inconsistent with her
position before the Social Security Administration. The positions
cannot be squared — at least one is a lie — indeed, a fraud upon
a tribunal. Furthermore, the two actions address the same facts,
i.e., the facts surrounding Rudd's departure from CARC.
Finally, it is apparent from the ALJ's decision that Rudd
convinced the ALJ to adopt her position; her position being that
she was disabled from the time she left CARC and that she
resigned due to her illness. The prerequisites to applying
judicial estoppel are thus established.
Although the court is mindful that the decision to apply
judicial estoppel is discretionary in nature, the court can
discern no set of facts more compelling than in the present case
to apply the doctrine. Rudd is caught in a lie and she must live
with it. It would serve no equitable purpose to allow her to
avoid the consequences of her actions. Accordingly, Rudd is
estopped from claiming that she resigned from CARC on any basis
other than for reasons related to her illness. CARC is therefore
entitled to summary judgment on Rudd's Title VII claim.
C. Merits of Retaliation Claim
Even if judicial estoppel did not apply in this case, the court
would still hold that CARC is entitled to summary judgment. It is
well-established that an employee may be terminated for "any
reason, good or bad, or for no reason at all, as long as the
employer's reason is not proscribed by Congressional statute."
Kahn v. U.S. Secretary of Labor, 64 F.3d 271, 279 (7th Cir.
1995). Title VII is one such proscriptive statute. It prohibits
an employer from discharging an individual "because of such
individual's race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a)(1). While prohibiting certain types of
discrimination, "Title VII does not prohibit unfairness or
wrongheaded decisions in the workplace." Johnson v. Hondo,
Inc., 125 F.3d 408, 415 (7th Cir. 1997).
A plaintiff bringing a retaliation action may establish the
claim either through direct proof of discriminatory [or
retaliatory] intent, or through the indirect, burden shifting
method of proof first elaborated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See
Smith v. Cook County, 74 F.3d 829, 831 (7th Cir. 1996). In this
case, Rudd lacks direct evidence and must proceed under the
burden-shifting method of proof.
Under the familiar burden-shifting method, Rudd must first
establish a prima facie case of retaliation. A prima facie
case of retaliation is set forth when a plaintiff demonstrates
that: "(1) she engaged in statutorily protected expression; (2)
she suffered an adverse action by her employer; and (3) there was
a causal link between the protected expression and the adverse
action." Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187,
195 (7th Cir. 1994). If established, the prima facie elements
raise a rebuttable presumption of discrimination. See Cianci v.
Pettibone Corp., 152 F.3d 723, 726 (7th Cir. 1998); EEOC v. Our
Lady of the Resurrection Med. Ctr., 77 F.3d 145, 149 (7th Cir.
1996). The burden of production, not proof, then shifts to the
defendant for purposes of articulating a legitimate,
nondiscriminatory reason for its action. See Our Lady of
Resurrection, 77 F.3d at 149. "The defendant must produce
evidence which, taken as true, would permit the conclusion that
there was a nondiscriminatory reason for the adverse action."
Id. (citations omitted). If the defendant satisfies its burden
of production, "the McDonnell Douglas evidence forcing schema
falls out of the case" and the plaintiff must present enough
evidence showing a genuine issue of material fact "that the true
reason was a discriminatory one, just as if there had never been
McDonnell Douglas." Wallace v. SMC Pneumatics, Inc.,
103 F.3d 1394, 1399 (7th Cir. 1997); see also Oates v. Discovery Zone,
116 F.3d 1161, 1170 (7th Cir. 1997). In other words, at this
point Rudd would have to present evidence showing that CARC's
articulated reason for terminating her was phony, a mere pretext
for discrimination. See Cianci, 152 F.3d at 726.
The court finds that Rudd has not established a prima facie
case of retaliatory discharge. At first glance it is clear that
the third element, the "causal link," is missing. In order to
demonstrate the "causal link," Rudd must demonstrate that CARC
would not have taken the adverse action "but for" the protected
expression. Johnson v. University of Wisconsin-Eau Claire,
70 F.3d 469, 479 (7th Cir. 1995). Rudd may establish a causal link
through evidence that the discharge took place "on the heels of
the protected activity." Alexander, 40 F.3d at 196. In other
words, "a telling temporal sequence can demonstrate this causal
link." Id.; see also Johnson v. Sullivan, 945 F.2d 976, 980
(7th Cir. 1991) (link established where one day passed between
protected expression and adverse action); Holland v. Jefferson
Nat'l Life Ins. Co., 883 F.2d 1307, 1315 (7th Cir. 1989) (one
week); Farmer v. Continental Ins., 955 F. Supp. 970, 978
(N.D.Ill. 1997) (two days). Here, such a temporal connection does
not exist between the complaints of harassment (the protected
activity) and the termination.
CARC terminated Rudd in June 1991, two and a half years after
she accused Brandow of sexual harassment. Such a lengthy gap does
not constitute a temporal link. See Davidson v. Midelfort
Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (five month
period between protected expression and adverse employment action
does not suggest a causal link); Hughes v. Derwinski,
967 F.2d 1168, 1174-75 (7th Cir. 1992) (four months); Juarez v. Ameritech
Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir. 1992)
(nearly six months); Thomas v. Metra Rail Serv., 941 F. Supp. 758,
762 (N.D.Ill. 1996) (three years). Thus, Rudd fails to
establish a prima facie case.
Assuming Rudd could establish a prima facie case, she still
could not survive summary judgment. CARC has articulated a
legitimate, non-discriminatory reason for Rudd's termination.
According to CARC, it could not continue to fund Rudd's program
on its own budget and it could not, despite extended efforts,
secure outside funding. Therefore, the program, and consequently
Rudd's position, were terminated. Rudd presents no evidence to
suggest that the decision was pretextual. Simply put, Rudd has
failed in her burden of proof. Rudd makes no attempt to connect
her conduct with CARC's alleged retaliation at all.
What the record shows is that Rudd was involved in numerous
confrontations with CARC. CARC was concerned about her conduct as
far back as 1982. Although the court discussed some of these
instances (some taking place 17 years ago), they are largely
irrelevant to Rudd's action, yet they are telling in
demonstrating what can fairly be described as Rudd's attempted
deception. Even accepting as true Rudd's allegations that Brandow
made inappropriate gestures toward her, the record suggests an
attempt by Rudd to trump up additional facts by pressuring her
subordinates. These attempts followed numerous disciplinary
actions taken by Brandow. But Rudd's deception did not end there.
It continued with a lie either before the Social Security
Administration or this court. In short, the record is replete
with evidence of Rudd's attempts to deceive, but it is devoid of
any facts from which a reasonable trier of fact could construct a
bridge linking her allegations of misconduct to her termination.
Essentially, Rudd is asking the court to second guess a
business decision. However, the court does "not sit as a
super-personnel department that reexamines an entity's business
decisions." See Hiatt v. Rockwell Int'l Corp., 26 F.3d 761, 772
n. 13 (7th Cir. 1994) (quotation marks and citations omitted).
"Title VII prohibits discriminatory employment actions, not hasty
or ill-considered ones." See Morrow v. Wal-Mart Stores,
Inc., 152 F.3d 559, 564 (7th Cir. 1998). Because Rudd cannot
establish that CARC unlawfully retaliated against her, the court
grants CARC's Motion for Summary Judgment.
For the foregoing reasons, CARC's Motion for Summary Judgment
IT IS SO ORDERED.