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March 3, 2004.

LOLA AJAYI, Plaintiff,

The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge


The case is before the Court on defendant's Federal Rule of Civil Procedure 56(c) motion for partial summary judgment on the only remaining claims in this suit: that plaintiff was discharged in retaliation for filing an EEOC charge. For the reasons set forth below, the motion is denied.


  Plaintiff was hired by defendant, a food services provider, in March 1996. (Pl.'s LR 56.1(b)(3)(A) Stmt. ¶¶ 2, 5.) In June 1998, plaintiff began working at one of the dining facilities at defendant's Harris Bank account. (Id. ¶ 5.) Greg Kaminski was the general manager for that account. (Id ¶ 8.) Ramiro Lopez was operations manager and plaintiff's immediate supervisor. (Id. ¶ 11) Page 2

  On February 14, 2000, plaintiff filed a charge of discrimination against defendant with the EEOC. (Id. ¶ 17.) During the course of the EEOC's investigation, the agency asked plaintiff to provide it with copies of employee time cards to refute defendant's assertion that employees" hours were cut because the Harris Bank account was losing money. (Exs. Supp. Def.'s Mot. Partial Summ. J., Ex. 1, Ajayi Dep. at 84-85.) Plaintiff complied with the EEOC's request, a fact that defendant did not discover until she was deposed in connection with this case on April 3, 2001. (Pl's LR 56.1(b)(3)(A) Stmt ¶ 18.) If it had known about the time card copying earlier, defendant says, it would have fired plaintiff for it. (Def.'s LR 56.1(a)(3) Stmt. f 20.)

  On May 17, 2000, Kaminski and Lopez gave plaintiff a written warning about her poor attitude and inappropriate behavior towards customers. (Pl's LR 56.1(b)(3)(A) Stmt ¶¶ 21, 24.) The warning called for a three-day suspension and plaintiffs transfer to a lesser position in another facility. (Id. ¶ 21.)

  After receiving the warning, plaintiff prepared a resignation letter. (Id. ¶ 25.) When plaintiff returned to work on May 22, 2000, she brought the resignation letter with her. (Id. ¶ 28.) When she arrived, Kaminski told her that her employment was terminated. (Id. ¶ 29.) After she learned of the termination, plaintiff gave the resignation letter to Kaminski. (14) Plaintiff says she did not intend to use the resignation letter unless she was fired and had prepared it to "mitigate the negative repercussions of being fired." (Id. ¶¶ 31-32.)

  The Legal Standard

  To prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] show that there Page 3 is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c). At this stage, we do not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw all inferences in favor of the non-moving party, Michas v. Health Cost Controls of ILL Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the record as a whole establishes that no reasonable jury could find for the non-moving parry. Id.


  Defendant contends that it is entitled to summary judgment on damages because the evidence establishes that plaintiff was planning to resign the day she was fired. Alternatively, defendant says, the after-acquired evidence doctrine limits plaintiffs damages to back pay through April 3, 2001, the date defendant learned that plaintiff had engaged in misconduct that would have provoked her termination. Neither contention is persuasive.

  Defendant's argument concerning plaintiffs intent to resign is based on the following undisputed facts: (1) plaintiff prepared her resignation letter because of the May 17, 2000 conversation with Kaminski regarding her suspension (Exs. Supp. Def.'s Mot. Partial Summ. J., Ex. 1, Ajayi Dep. at 172); (2) she brought the letter to work with her on May 22, 2000 and gave it to Kaminski (id at 172-73); and (3) she did not say either in the letter or verbally that she was resigning solely because of the threat of termination (id; Id. Ex. 12, 5/12/00 Resignation Letter).

  Certainly, that evidence supports the inference that plaintiff would have resigned regardless of defendant's actions. But that is not the only evidence that has been proffered on this issue. Plaintiff submitted an affidavit that says she had no intention of resigning unless she was fired and Page 4 only prepared the letter so she could tell future employers that she had quit. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶¶ 12, 14.) Moreover, it is undisputed that plaintiff did not give her resignation letter to Kaminski until after he told her she was fired, had not looked for another job prior to being fired and had not told anyone before that time that she planned to quit. (Def.'s Resp. Pl.'s LR56.1(b)(3)(B) Stmt. ¶¶ 13, 15-16.) All of that evidence supports the inference that plaintiffs "resignation" was prompted by her termination. In short, there is a genuine issue of material fact on whether plaintiff would have resigned on May 22, 2000, even if she had not been fired. As a result, defendant's motion to preclude plaintiff from recovering any damages on that basis is denied.

  Defendant's alternative argument is that plaintiffs damages are limited to back pay through April 3, 2001, the date that defendant learned she had removed photocopies of other employees' time cards from work premises without its permission, conduct that it says would have cost her her job. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362 (1995) (limiting remedy for employment discrimination to back pay from the date of the unlawful discharge to the date the employer discovered that the employee had committed misconduct that would have provoked a legitimate termination). Plaintiff says ...

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