the EEOC and, when she received her right to sue letter, filed
this lawsuit. Despite controverting the very material facts which
constitute the core of the plaintiff's case, the defendants move
for summary judgment. I deny the motion.
Ms. Schaffner was hired by HHDC as resident manager of
Mapletree Apartments in Woodstock, Illinois, in April 1995 and
was made manager of the Crystal Terrace Apartments in June 1995.
Her immediate supervisor was Rosa Ordext, and both worked under
Dilia Saeedi, HHDC Vice President for Property Management. In
August 1995, according to her affidavit, Ms. Ordext wrote a
glowing evaluation of Ms. Schaffner's performance, but was told
by Ms. Saeedi that she did not want Ms. Schaffner to get such a
good evaluation because she "was getting close to retirement and
they didn't want to spend time and energy on her." Ms. Saeedi
directed that the evaluation be changed, and Ms. Ordext refused.
(She was also later fired.)
Sometime afterwards, according to the affidavit, Ms. Ordext
discovered that Ms. Schaffner's evaluation had been revised to
reflect a more negative appraisal. Between June and December
1995, Ms. Saeedi made several remarks to Ms. Ordext referring to
Ms. Saeedi's age in a negative and demeaning way, which she took
to imply that Ms. Schaffner was too old for the job and that HHDC
"could not teach an old dog new tricks." According to the
defendants, Ms. Ordext did not really mean what she said in the
affidavit, which was prepared by Ms. Schaffner's attorneys and
merely signed by her, and defendants also deny that there was
ever a second altered performance review. In a November 1995
meeting to discuss the review, Ms. Saeedi also mentioned
retirement to Ms. Schaffner.
In November 1995, Ms. Schaffner was demoted to administrative
aide at both apartment complexes and her pay was cut by two
dollars an hour. She was replaced as resident manager by Lourdes
Santiago, who was under 40 years old. In March 1997, when Ms.
Schaffner was 62, she was fired, purportedly for negligence, poor
work, and bad attitude. Ms. Schaffner sued her employers for
violation of the Age Discrimination in Employment Act,
29 U.S.C. § 291, et seq. (the "ADEA") (Count I), as well as under several
state law counts.
Summary judgment is appropriate where there is no material
issue of fact and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Mt. Sinai Hospital Medical
Center v. Shalala, 1999 WL 974100, at *3 (7th Cir. Oct. 26,
1999). I take the facts in the light most favorable to the party
opposing the motion, Fulk v. United Transp. Union,
160 F.3d 405, 407 (7th Cir. 1998), but the nonmoving party has the burden
of coming forward with enough evidence so that a rational jury
could find for it at trial. Anderson v. Liberty Lobby,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[I]ntent and
credibility are crucial issues" in employment discrimination
cases, and therefore the summary judgment standard is "applied
with added rigor" in such cases, Huff v. UARCO, Inc.,
122 F.3d 374, 380 (7th Cir. 1997); this means that the defendants get cut
no slack, although the plaintiff must of course come forward with
enough to defeat the motion.
A plaintiff may prove age discrimination using the familiar
indirect, burden-shifting method of proof of McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), or, as here, with direct evidence. Direct evidence of
discrimination is evidence which can be interpreted as an
acknowledgment of discriminatory intent. Kormoczy v. Secretary,
U.S. Department of Housing and Urban Development, 53 F.3d 821,
824 (7th Cir. 1995). Such intent may be found in an employer's
statement that reveals hostility to older workers, Wichmann v.
Bd. of Trustees of Southern Ill. Univ., 180 F.3d 791, 801 (7th
Cir. 1999). Such a statement may stop short of a virtual
admission of illegality, Miller v.
Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999), although
isolated comments that by themselves amount to no more than stray
remarks will not suffice. Sheehan v. Donlen Corp.,
173 F.3d 1039, 1044 (7th Cir. 1999). Remarks reflecting a propensity by
the decisionmaker to evaluate employees based on illegal
criteria, however, will suffice. Id.
A reasonable jury could conclude here that there was direct
evidence of discrimination. The defendants argue that the only
testimony that Ms. Schaffner can report from direct knowledge is
Ms. Saeedi's reference to retirement in the November 1995
meeting, which defendants characterize as a stray or isolated
remark made eighteen months before she was fired, although
immediately before she was demoted. The proximity of the remark
to Ms. Schaffner's demotion, however, would be adequate to
support an inference of discrimination. Gleason v. Mesirow
Financial, Inc., 118 F.3d 1134, 1140 (7th Cir. 1997) ("To be
probative of discrimination, isolated comments must be
contemporaneous with the [adverse action] or causally related to
the . . . decision-making process").
Moreover, there are also the facts and statements reported in
Ms. Ordext's affidavit, which clearly constitute direct evidence
of age discrimination. Defendants argue that because Ms. Ordext
cannot recall verbatim the many derogatory age-related remarks
she says Ms. Saeedi made that no rational jury could conclude
that Ms. Saeedi was motivated by illegal considerations. They do
not cite any legal authority for this interesting view, which I
reject. A jury may take into consideration as going to the weight
of the evidence the fact that Ms. Ordext cannot recall the
remarks word for word. A jury might even find her testimony more
credible than if she had pretended to remember verbatim
conversations. It might not, but it would not be irrational if it
If the case is analyzed as a circumstantial evidence case under
the McDonnell Douglas approach or under the mixed-motives
approach of Price Waterhouse v. Hopkins, 490 U.S. 228, 109
S.Ct. 1775, 104 L.Ed.2d 268 (1989), Ms. Saeedi's remarks,
admitted and disputed, could if believed provide a reasonable
basis for rejecting HHDC's legitimate nondiscriminatory reasons
for firing Ms. Schaffner as pretextual, which rejection may be
sufficient basis to find for the plaintiff. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d
407 (1993). If a jury believed that the performance review in the
record is not the original, as defendants say, but Ms. Saeedi's
altered version, as Ms. Schaffner claims, that alone would
support the "suspicion of mendacity," id., that would warrant a
verdict for Ms. Schaffner.
Finally, defendants attempt to twist Ms. Schaffner's statement
in deposition testimony that HHDC's dissatisfaction with her
performance was based on things that were "[n]ot untrue, perhaps,
but blown up a lot" into an admission that her performance was
deficient. That is the sort of argument that gives lawyers a bad
name. We are not playing "Gotcha!" here.
I DENY the defendant's motion for summary judgment on Ms.
Schaffner's age discrimination claim (count I).
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