The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Shelly Llorens ("Llorens"), filed a pro se suit against
her employer, Rosenthal Collins Group, LLC ("RCG"), alleging various
types of employment discrimination. Thereafter, the court granted her
request for appointment of counsel, with leave to file an amended
complaint. Plaintiff's counsel declined to file an amended complaint,
therefore, plaintiff is bound by the allegations in the August 14, 2002
complaint.*fn1 At the close of discovery, RCG moved for summary
judgment. For the reasons set forth in this opinion, we deny RCG's motion
and narrow the scope of issues to be litigated at trial.
Llorens1 complaint is a form employment discrimination complaint
available at the office of the Clerk of the U.S. District Court. The form
complaint contains sixteen numbered paragraphs, with checkboxes and fill
in the blank spaces. Llorens filled out the complaint and filed it with this court. After a careful review of the
complaint, it appears that Llorens is alleging unlawful termination and
failure to promote based on color and race discrimination in violation of
Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, and a
violation of 42 U.S.C. § 1983 by a state or local governmental agency. As
the sole factual support for these claims, Llorens provides the following
unintelligible paragraph in her complaint; "I was alleges [sic]
discharged for insubordination. I was not at anytime insubordinate. John
Scriba yelled at me and throw [sic] something at me." Compl., ¶13. The
complaint does not contain any reference to a claim for retaliation, or
give any notice of the possible basis for a failure to promote claim.
RCG filed an answer to the complaint, and did not move to dismiss any
of Llorens' claims. Llorens pled her § 1983 claim by checking the "yes"
box below paragraph 10 of the complaint, which states "[t]he plaintiff is
suing the defendant, a state or local government agency, for
discrimination on the basis of race, color, or national origin (
42 U.S.C. § 1983)." Compl., ¶ 10. Inexplicably, instead of moving to
dismiss this claim and affirmatively stating that RCG is not a state or
local government agency, RCG answered paragraph 10 by stating
"[d]efendant admits that Plaintiff is suing for discrimination and
affirmatively states that it did not discriminate against Plaintiff in
any manner whatsoever, including Plaintiff's color, race and national
origin." Answer, 10. Because RCG is not a state or local government
agency, plaintiffs § 1983 claim is dismissed with prejudice.
Next, in paragraph 12 of her complaint, Llorens pled a failure to
promote claim, by checking a box next to the phrase "failed to promote
the plaintiff." Compl., ¶ 12. Llorens has not provided any basis for such a claim, therefore, her
failure to promote claim is also dismissed with prejudice.
Finally, before we turn to Llorens' unlawful termination claim, we must
address the retaliation issue raised in Llorens' response to the motion
for summary judgment. In her response, Llorens appears to argue that she
has made a claim for unlawful retaliation in violation of federal law. We
find no such claim in the record. Plaintiff's complaint, which her
counsel chose not to amend, does not mention the term retaliation, or
provide any facts that would put defendant on notice of a possible
retaliation claim. Although this is a notice pleading jurisdiction, "it
still is necessary that something be stated that apprises a defendant of
the substance of the allegations" against it. Uptown People's Community
Health Services Bd. of Directors v. Board of Com'rs of Cook County,
647 F.2d 727, 739 (7th Cir. 1981). Notice pleading still requires fair
notice. Id. Additionally, "a plaintiff may not amend [her] complaint
through arguments in [her] brief in opposition to a motion for summary
judgment." Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.
1996). Therefore, Llorens' retaliation claim is barred.
Llorens' Termination Claim
Now we address RCG's motion for summary judgment as to Llorens' sole
remaining claim in this case, unlawful termination in violation of Title
VII and § 1981. RCG is a registered futures commission merchant in the
business of clearing commodity futures trades and brokering customer's
commodity futures orders. Llorens is an African-American female employed
by RCG from 1993 until she was terminated on June 2, 2000. At all times relevant to this case, Llorens worked as a
phone clerk in the Wire Room, also known as the 24-hour trading desk.
George Recchia was in charge of the Wire Room and John Scriba was the
Wire Room manager who supervised Llorens' work.*fn2 Llorens' 56.1
Stmt., ¶ 20. According to, Llorens, her job was to "transfer various
customer phone orders to writing, and then to communicate them by
computer to the trading floor to be filled." Llorens' 56. 1 Stmt, ¶ 19.
At the time of her termination, Llorens was not given a reason for her
termination. Llorens' Aff. ¶ 16. RCG states that Llorens was fired
"because of her refusal to accept responsibility for her errors and
therefore be rehabilitated so they did not happen again. Her
belligerence, insubordination and her over-all bad attitude was dragging
down her entire department." Recchia's Aff., ¶ 11. Llorens contends that
she did take responsibility for her errors and that she was not
insubordinate and did not have a bad attitude. Llorens' Aff., ¶¶ 22, 23.
Summary judgment is proper when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party has the burden of
demonstrating the absence of genuine issues of material fact. Celotex,
477 U.S. at 323. "A genuine issue of material fact exists only if there
is sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party." Alexander v. Dept. of Health and Family
Services, 263 F.3d 673, 680 (7th Cir., 2001). When making this
determination, we review the record in the light most favorable to the
nonmovant, and draw all reasonable inferences in her favor. Id. "Rule
56(c) mandates summary judgment when the nonmoving party fails to
establish the existence of an element essential to its case and on which
that party will bear the burden of proof at trial." Jefferson v. City of
Chicago, No. 97 C 4895, 2000 WL 1368036 (N.D.III. Sept. 15, 2000)(citing
Anderson, v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
In order to prevail on her unlawful termination claim, Llorens may use
either direct or indirect evidence to demonstrate that the defendant
discriminated against her on the basis of her race. See Simmons v.
Chicago Bd. Of Ed., 289 F.3d 488, 492 (7th Cir., 2002). In this case, as
in most employment discrimination matters, there is no direct, or
"smoking gun" evidence, so plaintiff must proceed under the indirect
method first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under the McDonnell Douglas method, plaintiff must first make a
prima facie case of discrimination. In an unlawful termination case, this
involves demonstrating that: 1) she was a member of a protected class, 2)
at the time of her discharge she was meeting her employer's legitimate
expectations, 3) she was discharged, and 4) that the employer treated
similarly situated employees not in the protected class more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Once the plaintiff succeeds in establishing a prima facie case of
discrimination, the burden shifts to the defendant to provide a
legitimate, non-discriminatory reason for its action. McDonnell Douglas
Corp., 411 U.S. at 802-803. If the defendant meets its burden, the burden
shifts back to the plaintiff to show that the defendant's stated reason
for the adverse action is pretextual, that is, a lie, or not the real
reason for its action. To prove pretext, the plaintiff must show: 1)
defendant's explanation for its actions had no basis in fact; 2) the
explanation was not the real reason; or 3) the ...