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February 4, 2004.


The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge


This matter is before the court on Defendant Alden-Northmoor Rehabilitation and Health Care Center, Inc.'s and Defendant Alden Management Services, Inc.'s (collectively referred to as "Alden Defendants") motion for summary judgment and motion to strike. For the reasons stated below we grant the motion for summary judgment and deny the motion to strike as moot


  Plaintiff Marie Molino ("Molino") is of Filipino descent. Molino began working at Alden-Northmoor Rehabilitation and Health Care Center ("Alden") as a Personal Care Assistant ("PCA") on April 17, 2000. From July of 2001 until August of 2001 Molino acted as a Staffing Coordinator at Alden, but in August of 2001 Molino returned to a PC A position. According to the Alden Defendants, PCAs at Alden were responsible for changing Page 2 diapers and cleaning nursing home residents, lifting the residents, setting them in bed, and assisting in the dining room. On September 29, 2001 Regina Cervantes ("Cervantes"), who was a licensed practical nurse on duty at Alden, told Molino to change the bedclothes of an incontinent resident. Cervantes claims that Molino did not follow the instruction and that after she again made the request ten to fifteen minutes later, Molino refused and replied: "You can smell him and you can change him." Cervantes filed a disciplinary memorandum form documenting the alleged incident and on October 2, 2001 Jim Palazzo ("Palazzo"), the then acting Administrator of Alden, called Molino into his office to discuss the alleged incident. Palazzo claims that Molino was angry, agitated, and insubordinate to him in his office. After the meeting Palazzo prepared a separation report indicating that Molino left Alden because of insubordination and because he failed to follow the orders of his supervisor. The Alden Defendants contend that Molino resigned from his position. Molino denies that he ever made the above mentioned statement to Cervantes. He admits that he did not change the bed clothing of the resident after being asked twice to do so. However, Molino claims that the resident weighed too much and he needed assistance to lift the resident. Molino denies that he was angry or agitated at his meeting with Palazzo and Molino claims that he was fired by the Alden Defendants and that the separation report falsely states that he resigned. Molino has brought this action claiming that the Alden Defendants discriminated against him because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 ("Section 1981"). Page 3


  Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). Page 4


 I. Title VII Claim

  In order to defeat a motion for summary judgment brought by a defendant in regards to a Title VII claim the plaintiff can proceed under the direct or indirect method of proof in order to defeat the motion. Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998). Under the direct approach, the plaintiff can show through direct or circumstantial evidence that the alleged harmful action of the employer was "motivated by an impermissible purpose, such as [his] race or national origin." Id. Under the indirect approach the plaintiff must establish a prima facie case which will allow an inference of discrimination. Id. To establish a prima facie case of race discrimination a plaintiff must show: "(1) that [h]e was a member of a protected class; (2) that [h]e was performing h[is] job satisfactorily; (3) that [h]e experienced an adverse employment action; and (4) that similarly situated individuals were treated more favorably." Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002). Molino does not present evidence sufficient to proceed under the direct method of proof and will therefore need to proceed under the indirect method.

  If a prima facie case is established then there is a rebuttable presumption of discrimination and the employer is required to offer a "legitimate, non-discriminatory reason for the adverse employment action." Cianci v. Pettibone Corp., 152 F.3d 723, 726 (7th Cir. 1998). If the employer provides such a reason, the plaintiff must then show that the reason alleged by the employer is merely a pretext for discrimination. Id.

  A. Prima Facie Case

  Molino has shown that he is a member of a protected class. There is a genuine material dispute regarding whether or not Molino suffered an adverse employment action. According to Page 5 the Alden Defendants, Molino resigned, but according to Molino's version of events, he was fired. There is also a genuine material dispute concerning whether or not Molino performed his job satisfactorily. The Alden Defendants have supplied evidence indicating that Molino was insubordinate to Cervantes and to Palazzo. However, Molino points to his deposition testimony in which he denies that he was ever disrespectful to Cervantes. Molino claims that he was unable to comply with her request to change the bed clothing because he needed help lifting the resident and claims that he went to get assistance to lift the resident. Molino also portrays himself as a calm and respectful employee during the meeting with Palazzo which is directly contrary to Palazzo's characterization of Molino as being angry, agitated, and insubordinate.

  Molino has failed to show that a similarly situated employee outside the protected class was treated more favorably than him. A similarly situated employee is defined as "one who is `directly comparable to [the plaintiff] in all material respects.'" Rogers v. City of Chicago, 320 F.3d 748, 755 (7th Cir. 2003)(quoting Grayson v. O'Neill, 308 F.3d 808, 819 (7th Cir. 2002)). Where the plaintiff asserts that he was disciplined more harshly than coworkers, the plaintiff must show that he "is similarly situated with respect to performance, qualifications, and conduct," and "[t]his normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Peele v. Country Mut. Ins., 288 F.3d 319, 330 (7th Cir. 2002)(quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)).

  Molino claims that there are twelve similarly situated employees at Alden that were not Filipino and were disciplined in a manner less harsh than himself. Molino claims that the twelve Page 6 individuals are named in disciplinary reports produced by the Alden Defendants during discovery. However, many of those reports involve violations of workplace rules other than the rule allegedly violated by Molino which is rule number five for allegedly failing to follow directions and insubordination. Also, the disciplinary reports for the twelve other employees were signed by various supervisors other than Cervantes. In addition, of the employees included in the twelve reports, eleven of the twelve employees were Certified Nursing Assistants whereas Molino was a Personal Care Assistant. The one report issued against another PCA is signed by a supervisor other than Cervantes and accuses the employee of neglect in violation of rule number seven. ...

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