The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Jesse Augsburger, filed a complaint against defendant,
Firstar Bank, n/k/a US Bank, alleging she was terminated from her
position as a personal banker based on race/national origin (she is
Filipino) and age discrimination in violation of Title VII and the Age
Discrimination in Employment Act, respectively. She also alleged she was
subjected to harassment and was terminated in retaliation for complaining
about the harassment. Defendant has filed a motion for summary judgment
on all claims. Plaintiff, in response, has conceded that her claims for
age discrimination and harassment are not supported by the evidence. She
has also moved to strike portions of the affidavit of Cindy Werkheiser,
the person responsible for both hiring and firing her, as inadmissible
Before turning to the merits of the remaining claims of discrimination
and retaliation, the court denies the motion to strike portions of the
Werkheiser affidavit. The customer complaints referred to therein and
relied on by Werkheiser as a partial basis for terminating plaintiff are
not hearsay as they are not offered to prove their truth, but rather, to
show that Werkheiser honestly relied on them in terminating plaintiff.
See Brill v. Lante Corp., 119 F.3d 1266, 1271 (7th Cir. 1997).
Summary judgment is proper where there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.
Windle v. City of Marion. 321 F.3d 658, 660 (7th Cir. 2003).
A plaintiff may show she was the victim of discrimination or
impermissible retaliation in the workplace either by providing direct
evidence of discrimination or by proceeding under the indirect,
burden-shifting method. Johnson v. Cambridge Industries. Inc.,
325 F.3d 892, 896 (7th Cir. 2003). The indirect approach requires a
plaintiff to first establish certain prima facie elements for either
discrimination or retaliation. Johnson. 325 F.3d at 897. Once this is
done, the burden of production shifts to the defendant to offer a
permissible, noninvidious reason for the employment action. Johnson. 325
F.3d at 897. If the defendant does so, the plaintiff may rebut that
evidence by showing that the defendant's reason is a pretext for
discrimination. Johnson, 325 F.3d at 897.
To establish a prima facie case for discrimination, a plaintiff must
show she belongs to a protected group, she was performing her job to her
employer's satisfaction, she suffered an adverse employment action, and
that a similarly situated employee who was not a member of the protected
class was treated more favorably by the employer. Johnson. 325 F.3d at
897. The prima facie case for retaliation requires a plaintiff to show
that: (1) she engaged in a statutorily protected activity; (2) she
performed her job according to her employer's legitimate expectations; (3)
despite her satisfactory job performance, she suffered an adverse
employment action; and (4) she was treated less favorably than similarly
situated employees that did not engage in statutorily protected
activity. Sitar v. Indiana Department of Transportation. 344 F.3d 720,
728 (7th Cir. 2003).
In this case, plaintiff has pointed to no direct evidence of
discrimination or retaliation. The court, therefore, proceeds to the
indirect, burden-shifting analysis.
As to the prima facie case for both discrimination and retaliation,
while plaintiff attempts to dispute whether she was meeting defendant's
legitimate expectations, there is sufficient undisputed evidence that she
was not based on customer complaints, prior performance evaluations, and
a customer satisfaction survey (conducted by an outside agency) which
indicated she was below expectations. While she points to the affidavits
of certain customers and fellow employees that she was doing her job
satisfactorily, the relevant question is whether she was meeting
defendant's expectations and not those of anyone else. Further, none of
the affidavits submitted by plaintiff directly refute some of the
customer complaints, the performance evaluations, and the customer
satisfaction survey relied on by Werkheiser in her decision to fire
plaintiff. Plaintiff has, therefore, failed to establish a prima facie
case of discrimination or retaliation, and defendant is entitled to
summary judgment on that basis alone.
Even assuming she has established a prima facie case of discrimination
or retaliation, her claim for discrimination still fails as she has not
shown that defendant's expressed reason for termination, poor customer
relations, was pretextual. Plaintiff attempts to demonstrate pretext by
relying on the affidavits of some customers and fellow employees that
state in their opinion she was performing her job satisfactorily.
Defendant offers a variety of reasons for its conclusion that she was not
performing her job satisfactorily, however, and plaintiff has not shown
that all of them are questionable. See Brill, 119 F.3d at 1270.
Moreover, if defendant honestly believed that plaintiff was not
performing her job satisfactorily, plaintiff loses even if the reasons
were, foolish, trivial, or baseless. See Brill, 119 F.3d at 1270. The
issue of pretext does not address the correctness of a defendant's
reasons, but rather, addresses whether the defendant honestly believed in
its reasons. Brill. 119 F.3d at 1279. Defendant is entitled to summary
judgment on plaintiffs discrimination claim on this basis as well.
As for the retaliation claim, plaintiff has also failed to show that
defendant's reason for terminating her was a pretext for retaliation. The
only complaint she made was an isolated comment to Werkheiser about a
co-worker mimicking her accent. After she complained, there were no more
instances of such mimicking which would seem to suggest that Werkheiser
responded constructively to the complaint. More importantly, assuming
such an isolated complaint constituted protected activity, it was remote
in time to plaintiffs termination. Further, it fails to put a dent in
defendant's overwhelming evidence of its reason for terminating plaintiff
based on inadequate job performance. Thus, plaintiff is also entitled to
summary judgment on plaintiffs retaliation claim on this basis as well.
Finally, defendant claims it is entitled to an inference of
nondiscrimination because Werkheiser was the person who both hired
plaintiff and fired her. There is a line of cases in this circuit that
recognizes such an inference (some suggest it is a rebuttable
presumption) where the plaintiff is hired and fired by the same
decision-maker in a relatively short time span. See Chiaramonte v.
Fashion Bed Group, Inc., 129 F.3d 391, 399 (7th Cir. 1997) (applies to
age claim); EEOC v. Our Lady of the Resurrection Medical Center.
77 F.3d 145, 152 (7th Cir. 1996) (applies to race claim); Rand v. CF
Industries. Inc., 42 F.3d 1139, 1147 (7th Cir. 1994) (age). While a
"relatively short" period of time is a flexible concept, at least one
case has applied the inference to a termination that took place "less
than two years" after retaining the plaintiff following a merger.
Chiaramonte, 129 F.3d at 399.
Here, defendant acquired plaintiffs former employer in 1999.
Werkheiser, who hired plaintiff originally in 1997, continued to have
managerial responsibility over plaintiff after the acquisition. A little
more than two years later, Werkheiser made the decision to terminate
plaintiff. Under these circumstances, there is a strong inference of
nondiscrimination by Werkheiser in the decision to terminate plaintiff.
Plaintiff has failed to rebut that inference as to either her
discrimination or her retaliation claims. This provides an additional
reason for granting summary judgment in favor of defendant.
For the foregoing reasons, the court denies plaintiffs motion to
strike, grants defendant's motion for summary judgment as to all ...