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December 14, 1999


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


Plaintiff Ella Wade alleges age discrimination and retaliation under the Age Discrimination in Employment Act and under Title VII, 42 U.S.C. § 2000e-1 et seq. The defendant moves for summary judgment. For the following reasons, the motion is granted in favor of the defendant.

I. Background

Plaintiff Ella Wade ("Ms. Wade") was an employee of defendant Lerner New York, Inc. ("Lerner") for approximately nineteen years until being terminated on April 27, 1997 at the age of 52. From October 1996 to April of 1997, Ms. Wade alleges that her employer subjected her to discrimination based on her age and because she filed a discrimination complaint.

Ms. Wade alleges that she frequently requested a promotion to the position of Co-Manager or Assistant Manager, including three times during the fourth quarter of 1996. Instead, four younger employees were promoted. Ms. Wade further alleges that she requested but was denied the training defendant claims was necessary to receive a promotion.

On November 21, 1996, Ms. Wade claims she arrived for work at Lerner on time and was granted permission by her supervisor to take a brief break to settle her stomach. Nonetheless, her supervisor reported to the store manager that Ms. Wade had falsified her time sheet. Ms. Wade denied this but was disciplined via a written warning. On December 5, 1996, Ms. Wade filed an age discrimination complaint with the Illinois Human Rights Commission which included claims of discriminatory discipline and failure to promote.

Ms. Wade claims that in response to her complaint of discrimination, Lerner retaliated by reducing her hours. Ms. Wade then filed an additional complaint with the Illinois Human Rights Commission for retaliation on April 23, 1997. Ms. Wade was fired on April 27, 1997 for insubordination, complaining and being discourteous to customers, and for grabbing her supervisor by the wrist. The events which occurred on April 26, 1997 are vigorously disputed by the parties. Although several witnesses, including customers, wrote statements corroborating at least one of these reasons, Ms. Wade claims the events were fabricated and denies them all. Ms. Wade claims that she simply reminded her supervisors of her medical condition and requested a minor accommodation; she denies raising her voice, being discourteous to anyone, or touching Ms. Stovall, and claims that the customers who complained were induced to make up their statements because they were friends of her supervisor based on conversations she overheard between them.

Both the discrimination and retaliation complaint were cross filed with the Equal Employment Opportunity Commission ("EEOC"), which issued a right-to-sue letter on June 25, 1998 on both charges. Defendant moves for summary judgment on all claims.

II. Standard of Review

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Lexington Ins. Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999). When considering a motion for summary judgment, the court may review the entire record, drawing all reasonable inferences from the record in the light most favorable to the non-moving party. Cornfield by Lewis v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993). The party opposing the motion, however, must make a showing sufficient to establish any essential element for which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. ADEA Discrimination Claims

Under the ADEA, employers are prohibited from discriminating on the basis of age against employees who are at least forty years old. See 29 U.S.C. § 623(a), 631(a). The plaintiff may prove her case using direct evidence or via the indirect burden-shifting method of McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Fuka v. Thomson Consumer Elecs., 82 F.3d 1397 (7th Cir. 1996). "Under either method, summary judgment is improper if the plaintiff offers evidence from which an inference of age discrimination may be drawn." Fuka, 82 F.3d at 1402-03. Ms. Wade has not come forward with direct evidence, so she proceeds under McDonnell Douglas.


To support her discriminatory discipline claim, Ms. Wade first has the burden of establishing a prima facie case of age discrimination by showing she was: (1) in the protected age group of 40 or older; (2) performing her job satisfactorily; (3) subjected to a materially adverse employment action; and (4) treated less favorably than younger employees. Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995). Lerner does not dispute that Ms. Wade meets the first three criteria but denies that Ms. Wade was treated less favorably than younger employees for violating the time-card policy. In fact, Lerner offers evidence that it fired a 22-year old employee for falsifying his time records. However, Ms. Wade argues that the disparate treatment arises because younger employees are not falsely accused of being late and ...

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