MEMORANDUM OPINION AND ORDER
Patricia Farrow ("Farrow") has charged her former employer
Humana Health Plan, Inc. ("Humana") with race-based employment
discrimination (she is African-American) as well as with
retaliation in violation of Title VII of the Civil Rights Act of
1964 as amended ("Title VII," 42 U.S.C. § 2000e to
2000e-17*fn1) and 42 U.S.C. § 1981 ("Section 1981")*fn2.
Although this Court had earlier cautioned Humana that such a
procedure would seem ill-advised (see the Appendix to this
opinion), Humana has now filed a Fed. R.Civ.P. ("Rule") 56
summary judgment motion. Both sides then complied with this
District Court's LR 56.1,*fn3 and the motion is fully briefed
and ready for decision. For the reasons stated in this memorandum
opinion and order, Humana's motion is denied.
Summary Judgment Standards
Familiar Rule 56 principles impose on Humana the burden of
establishing the lack of a genuine issue of material fact
(Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986)). For that purpose this Court must
"read the record in the light most favorable to the non-moving
party," although it "is not required to draw unreasonable
inferences from the evidence" (St. Louis N. Joint Venture v. P &
L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir. 1997)).
"[T]his general standard is applied with added rigor in
employment discrimination cases, where intent is inevitably the
central issue" (McCoy v. WGN Continental Broad. Co.,
957 F.2d 368, 370-71 (7th Cir. 1992)). Summary judgment is appropriate
only if the record reveals that no reasonable jury could conclude
that Farrow was treated in a statutorily prohibited
discriminatory fashion (see Fuka v. Thomson Consumer Elecs.,
82 F.3d 1397, 1402 (7th Cir. 1996) and cases cited there).
As with every summary judgment motion, this Court accepts
nonmovant Farrow's version of any disputed facts. What follows in
the Facts section (and to some extent later) is culled from the
parties' submissions, with any differences between them resolved
in Farrow's favor.
Farrow has been a registered nurse for over 25 years.*fn4 She
began working for Humana in the summer of 1994, initially in its
nursing registry and then (in August 1994) as a Clinical
Education Coordinator (later renamed Chronic Care Education
Coordinator*fn5) in Humana's Nursing and Allied Health
Department ("Department") located at Humana's Sykes Health Center
in Chicago, where Farrow maintained an office (56.1 ¶¶ 1-2, 6; F.
56.1(b) Supp. ¶ 11).
Farrow's duties as Education Coordinator included developing,
coordinating and teaching various evening classes relating to
self-treatment of chronic conditions such as asthma, diabetes and
high blood pressure. Those classes were generally conducted
either by Farrow or an instructor hired and trained by Farrow
three days each week from 6 p.m. to 8 p.m. at three different
Humana Health Centers: Sykes, Beverly and Evanston (Farrow Dep.
42; 56.1 ¶¶ 7-8). Farrow performed her duties in a satisfactory
manner until April 1997, when Humana terminated her (F.56.1(b)
Supp. ¶¶ 14-17, 277).
During Farrow's employment with Humana, Department's Executive
Director was Mary Patricia White ("White"), who is Caucasian*fn6
(56.1 ¶ 4). White was responsible for hiring and firing as well
as for day-to-day management of Department, including the
supervision of Department supervisors (F.56.1(b) Supp. ¶ 6).
Immediately under White in Department's management hierarchy
was Sally Hillyer ("Hillyer"), also Caucasian. Hillyer had held
Department's Director of Nursing ("Director") position since 1993
and was Farrow's immediate supervisor when Farrow began working
at Humana in 1994. Hillyer occupied the Director position until
the end of October 1996, when she resigned that position for
reasons unrelated to this case. Hillyer still continued to play
an active role in Department and participated in Farrow's
termination in April 1997 (56.1 ¶ 21).
Sheila Phelan ("Phelan"), also Caucasian, was the second person
holding an Education Coordinator position in Department. Phelan
had responsibility for developing, coordinating and teaching
classes in the maternal health field, while as stated earlier
Farrow had like duties in the chronic medical conditions field
(56.1 ¶ 10). Because Phelan and Farrow were exempt employees who
taught classes at other Humana facilities in the evenings (thus
requiring flexible travel time), their schedules were "flexible"
— that is, to accommodate their coordination and teaching duties
their respective hours had to and did fluctuate, based largely on
their own discretion and the overall requirement to put in 8
hours per day*fn7 (F.56.1(b) Supp. ¶¶ 137-38).
Farrow's Internal Complaints of Discrimination
In May 1995 and again in June 1996, Farrow met with White and
complained that she was being treated in a racially
discriminatory manner by Hillyer (56.1 ¶ 9). Farrow reported to
White at least these 10 examples of assertedly disparate
treatment by Hillyer:
1. Farrow's time cards were scrutinized more
closely than Phelan's (F.56.1(b) Supp. ¶¶ 55-57, 61,
2. Hillyer would call Farrow (but not Phelan) at
home when Farrow was either sick or on vacation
(Farrow Dep. 54-58).
3. Hillyer would "check up" on Farrow (but not
Phelan) when Farrow was teaching at other Humana
centers (F.56.1(b) Supp. ¶ 103).
4. Farrow (but not Phelan) was cited by Hillyer for
an apparent dress code violation (wearing denim),
while Phelan violated the dress code with impunity
(F.56.1(b) Supp. ¶¶ 32-35, 38-54).
5. Another black employee in the Department, Liz
Cross, was forced to make up time missed for
emergency care of her child, while Phelan was not
similarly required to make up time missed for
"emergency" care of her dog (which had been spayed)
(F.56.1(b) Supp. ¶¶ 69-72, 91).
6. Hillyer would describe persons that came to meet
Farrow (for business reasons) while Farrow was away
as Farrow's "friends" only when the visitor turned
out to be black (Farrow Dep. 77-80).
7. Hillyer took sole credit for work done in
conjunction with Farrow (F.56.1(b) Supp. ¶¶ 36-37).
8. Farrow (but not Phelan) was required to come in
on payday Fridays to get paid, whether or not she was
scheduled to be on vacation or otherwise off
(F.56.1(b) Supp. ¶ 58).
9. Phelan was allowed (and even encouraged) to
start a personal business using at least some Humana
time and resources, while similar conduct by Farrow
would not have been tolerated (F.56.1(b) Supp. ¶¶
10. On several days per year when she was scheduled
to work, Phelan would be allowed to come to work for
a couple of hours solely to decorate the office for a
particular holiday and then to leave without doing
any "real" work, while similar conduct by Farrow
would not have been tolerated (Farrow Dep. 101-02).
Farrow later complained that her performance evaluations and
raises in salary were substantially "delayed," while White and
Hillyer processed Phelan's evaluations and raises promptly
(F.56.1(b) Supp. ¶¶ 62-63, 92-97, 99-102). Finally, Farrow
observed that Phelan routinely arrived at work hours late or left
hours early, while White and Kaneski disciplined (and ultimately
terminated) Farrow for similar conduct (F.56.1(b) Supp. ¶¶