United States District Court, N.D. Illinois
July 6, 2004.
Blackhawk Area Credit.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Kelly Raab, filed a two-count complaint (removed
here from the circuit court of Stephenson County) against her
former employer, the Blackhawk Area Credit Union (defendant),
alleging in Count I discrimination and retaliation based on her
pregnancy and in Count II retaliation based on the exercise of
her rights under the Family Medical Leave Act. Plaintiff
subsequently filed an amended complaint which added a
supplemental claim under the Illinois Wage Payment Act (820 ILCS
115/1et seq. (West 2002)) in Count III. Plaintiff earlier in
these proceedings moved to dismiss voluntarily Count II, which
this court granted, and defendant has now moved for summary
judgment as to Count I.
Summary judgment should only be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. Lucas v. Chicago
Transit Authority, 367 F.3d 714, 720 (7th Cir. 2004). In
ruling on such a motion, the court must construe all facts in a
light most favorable to the non-moving party as well as view all
reasonable inferences in that party's favor Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
Strict compliance with LR 56.1 is required, and a partial
denial of a factual statement without specificity will be deemed
an admission of that fact. Smith v. Lamz, 321 F.3d 680, 683
(7th Cir. 2003). The court also disregards those portions of
a plaintiff's submitted affidavits that contradict prior
deposition testimony. Kalis v. Colgate-Palmolive Co,
231 F.3d 1049, 1055 (7th Cir. 2000). Here, the court considers
admitted all of defendant's factual statements that plaintiff
partially denied without specifying which part of the statement
is being denied. The court also disregards those portions of
plaintiff's and Kirk Raab's affidavits that are inconsistent with
their previous deposition testimony. The court is also dubious of
plaintiff's tactic of announcing its reliance on the direct
method of proof in its response brief and then attempting to
support that theory with post-deposition affidavits. Such an
approach hints of litigation by ambush.
Turning to the merits of plaintiff's claims in Count I,
plaintiff relies on three instances of alleged discrimination:
her removal as acting president, the failure to promote her to
the permanent position of president, and her termination from
employment. Defendant initially contends that the first two
instances are barred by the 300-day limitation period applicable
to a Title VII claim. See Lucas, 367 F.3d at 720. Plaintiff
concedes her claim is time-barred to the extent it is based on
her removal as acting president. As for the failure to promote
claim, the court finds it is not time-barred as the undisputed
evidence shows plaintiff was not aware of defendant's decision
until December 6, 1999, within 300 days of her filing her charge
The court grants summary judgment in favor of defendant to the
extent Count I is based on retaliation as there is no evidence
that plaintiff ever engaged in any protected activity related to
her pregnancy. SeeWyninger v. New Venture Gear, Inc,
361 F.3d 965, 981 (7th Cir. 2004). Thus, plaintiff cannot establish a
claim of retaliation either directly or via the indirect
approach. See Wyninger, 361 F.3d at 981.
That leaves plaintiff's claim that she was discriminated
against based on her pregnancy when defendant failed to promote
her to president and when defendant terminated her from her
position as vice-president of operations.
There are two ways a plaintiff may establish a case of
pregnancy discrimination in order to avoid summary judgment;
either using the indirect or the direct methods. Marshall v.
American Hospital Assoc., 157 F.3d 520, 525 (7th Cir.
1998). Under the direct method, the approach exclusively relied
on by plaintiff here, a plaintiff must offer either direct or
circumstantial evidence to create a triable issue of fact as to
whether pregnancy was a motivating factor in the adverse
employment decision. Marshall, 157 F.3d at 525.
Plaintiff has not shown any direct evidence such as an
acknowledgment on the part of defendant of discriminatory intent.
See Marshall, 157 F.3d at 525. The statements made by the
board members are at best circumstantial evidence of
Under the circumstantial evidence option of the direct method,
there are three types of evidence that will suffice. Marshall,
157 F.3d at 525. The first consists of suspicious timing,
ambiguous statements, behavior toward or comments directed at
other employees in the protected group and other "bits and
pieces" from which an inference of discrimination might be drawn.
The second is a showing that other, similarly situated,
non-pregnant employees received systematically better treatment.
The third is evidence that the plaintiff was qualified for the
job but passed over in favor of a person not having the
particular characteristic (pregnancy) and that the stated reason
for the employer's decision is not worthy of belief, a mere
In this case, plaintiff has no evidence of a similarly
situated, non-pregnant person being treated more favorably than
plaintiff. While plaintiff has shown that she was passed over for
the promotion in favor of a non-pregnant individual, she has
offered no evidence that defendant's reason for doing so, the
superior qualifications of Wisowaty, was pretextual.
Instead, plaintiff hangs her hat on the statements made by the
two board members. This evidence is of no avail to plaintiff in
terms of her claim of discriminatory discharge, however, as it is
undisputed that Wisowaty, the new president, was the sole
decision maker in that regard. There is absolutely no connection
between the statements and Wisowaty's decision to terminate
As for the decision not to promote plaintiff to president, the
isolated statements are insufficient to present a triable issue
of fact. While the statements are at least arguably inappropriate
in today's workplace, there is ample evidence that the reason for
plaintiff not being promoted was the deluge of critical letters
from fellow employees about how plaintiff handled the acting
presidents' job combined with her lesser (as compared to the
other candidates) qualifications. Further, plaintiff points to no
evidence that any of the remarks were in any way connected to the
ultimate decision not to promote her. Where the purported direct
evidence is purely circumstantial, the evidence as a whole may be
so one-sided as to allow a defendant to prevail as a matter of
law. See Sangvhi v. St. Catherine's Hospital, Inc.,
258 F.3d 570, 575 (7th Cir. 2001). Such is the case here.
For the foregoing reasons, the court grants summary judgment in
favor of defendant as to Count I of plaintiff's amended
complaint, and, pursuant to its discretion under
28 U.S.C. § 1367(c), remands Count III to the circuit court of Stephenson
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