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November 8, 1999


The opinion of the court was delivered by: Shadur, Senior District Judge.


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. ¶¶ 59-60).

Hillyer was not singled out for individual reprimand, counseling or sensitivity training as a result of Farrow's complaints, nor did White report Farrow's complaints to Humana's Human Resource Department ("HR"), both as required by Humana policy (56.1 ...

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