The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Ms. Oliva was hired in November 1996 by Display Graphics LLC
("Display Graphics") as a sales representative. Defendants
Display Graphics, LLC and Pride Container Corporation ("Pride
Container") are commonly owned and employ sales representatives
who are capable of selling both company's products.
On September 30, 1997, Ms. Oliva was injured in a car accident.
Although she drove herself back to work that day, Ms. Oliva
missed the following week of work. In addition, she continued to
suffer from various afflictions as a result of the accident,
including temporaomandibular joint syndrome ("TMJ"), a bowel
obstruction, and pains in her neck, back and head. Ms. Oliva
suffered paralysis over her right eye which eventually required
surgery. According to Ms. Oliva, Mr. Abrams, Pride Container's
Vice President and Sales Manager responsible for both entities
sales representatives, made repeated statements about the
frequency of her doctors' appointments.
In 1998, Ms. Oliva's sales goals for the first three sales
periods were $90,000, $110,000, and $125,000; her actual sales
were $56,000, $72,000, and $25,000 respectively. On May 12, 1998,
Pride Container terminated Ms. Oliva, claiming her sales volume
was too low. Ms. Oliva now sues her former employer and its
affiliate, claiming discrimination because of her sex and
disability in violation of the ADA and Title VII.
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, I 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
Ms. Oliva offers no direct evidence of discrimination nor does
she bother to clearly articulate the elements of her indirect
prima facie case.*fn1 Nevertheless, I shall proceed based on the
facts alleged in her response to summary judgment. Ms. Oliva may
establish a prima facie case of discrimination by showing she:
(1) belongs to a protected class, (2) performed her job
satisfactorily, (3) suffered an adverse employment action, and
(4) was treated worse than similarly-situated male employees,
Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir.
1997). If Ms. Oliva makes out a prima facie case of
discrimination, the burden of production shifts to the defendants
to articulate a "legitimate, nondiscriminatory reason for its
action," which Ms. Oliva must then show is pretext to survive
summary judgment. Id., 105 F.3d at 347.
Ms. Oliva meets the first, third, and fourth prongs of the
prima facie case. She is a woman who was fired while other male
employees, performing substantially similar duties, were not
fired.*fn2 Defendants argue that, based on Ms. Oliva's
inadequate job performance, she cannot make out a prima facie
case of discrimination and even if she could, her unsatisfactory
sales constitutes a legitimate, nondiscriminatory reason for her
termination. Thus, the second element of the prima facie case,
satisfactory job performance, and the issue of pretext focus on
the same evidence. See Denisi v. Dominick's Finer Foods, Inc.,
99 F.3d 860, 864 (7th Cir. 1996) ("in many employment
discrimination cases, the second element of the prima facie case,
satisfactory job performance, and the issue of pretext focus on
the same circumstances because the employer maintains that the
discharge was based on its reasonable belief that the employer
was not performing in an acceptable manner.") I shall therefore
proceed directly to consider whether Ms. Oliva met her burden of
showing pretext. Fuka v. Thomson Consumer Elecs., 82 F.3d 1397,
1404 (7th Cir. 1996).
Ms. Oliva may prove pretext by showing "evidence tending to
prove that the employer's proffered reasons are factually
baseless, were not the actual motivation for the discharge in
question, or were insufficient to motivate the discharge."
Testerman v. EDS Technical Prod. Corp., 98 F.3d 297, 303 (7th
Cir. 1996). Defendant claims that it fired Ms. Oliva because she
failed to meet her sales goals for 1998.*fn3 Ms. Oliva concedes
the factual accuracy of the defendants' assertion, but attempts
to explain away her sales shortfall. She alleges that she was on
track to exceed her prior year's sales and that, at the time of
her termination, she was working on major accounts which
presumably could have permitted her to meet her goals. However,
the operative time frame for performance is when she was
terminated, so her prior or future anticipated performance is
irrelevant. Nor are Ms. Oliva's claims that the defendants set
her up for failure and termination compelling because (1) she
herself set the sales goals, and (2) her allegations of
non-support in terms of training, guidance, and leads are
contradicted by her own statements in the record that "everyone
has been very helpful and responsive to any questions or needs
that I have had" and that Mr. Abrams gave her leads, attended
three sales calls with her, and warned her about spending too
much time in the office rather than out in the field. Moreover,
the failure of a sales representative to meet her self-imposed
sales forecast appears a legitimate way of determining whether
she could perform her job at the level required of sales
representatives. Ms. Oliva does not undermine the factual basis
or facial sufficiency of the defendants' stated reason for her
termination. However, by demonstrating that she was fired while
male employees who did not meet their sales goals were not, Ms.
Oliva offers evidence that tends to show that her performance may
not have been the real reason behind her termination.
Sales reports included in the record by the defendants indicate
that many sales representatives did not meet their budgeted sales
figures in 1998. These same reports demonstrate that a male sales
representative, Bill Restis, like Ms. Oliva, had three straight
periods of poor sales but, unlike Ms. Oliva, was not terminated.
The defendants claim that his projects showed significant promise
and he was working in new territory. However, during the first
three sales periods of 1998, Mr. Restis not only failed to meet
his budgeted sales, his sales were minuscule and only a fraction
of even Ms. Oliva's, so it is difficult to imagine what promise
or progress management foresaw. Ms. Oliva was also working in
what was new territory for her, having recently relocated to
Chicago. While Ms. Oliva was fired for her sales shortfall, Mr.
Restis' salary was cut, but he was retained and did not resign
until nearly eight months later. The defendants then attempt to
equate the treatment of Ms. Oliva and Mr. Restis by comparing
their overall length of employment, since Mr. Restis resigned
approximately one year and a half after he began his employment
while Ms. Oliva was fired after a similar time period. However,
it is not clear why Mr. Restis resigned — the defendants intimate
he was asked to but are coyly unclear on this point — nor does it
matter. There is a clear difference in consequence and stigma
between being fired and resigning from a position, and it is
disingenuous for the defendant to suggest otherwise, particularly
since Ms. Oliva was not given the option of resigning but was
instead unceremoniously fired.
"The factfinder's rejection of the defendants'
nondiscriminatory explanation of the facts comprising a prima
facie case may itself be enough to find for the plaintiff on the
issue of liability." Wichmann v. Board of Trustees of Southern
Illinois Univ., 180 F.3d 791, 803 (7th Cir. 1999) (citing St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993)). Here, the evidence tendered shows that
there were other male sales representatives who did not meet
their sales goals, but were not fired, so a jury could reasonably
reject this as the real reason Ms. Oliva was fired. Because the
defendants rest their entire argument for summary judgment on its
nondiscriminatory explanation of the facts, that Ms. Oliva was
fired because she did not meet her sales goals, her successful
rebuttal of this argument could persuade a rational trier of fact
that this reason is ...