United States District Court, N.D. Illinois, Eastern Division
November 1, 2004.
CHRISTINA HACKETT, Plaintiff,
CLIFTON GUNDERSON, L.L.C., Defendant.
The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Christina Hackett has sued her former employer, Clifton
Gunderson, L.L.C. ("CG"), for three claims based on CG's decision
to terminate Hackett while she was on maternity leave. Hackett
alleges the termination constituted unlawful pregnancy
discrimination in violation of the Pregnancy Discrimination Act
amendment to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq.; failure to return Hackett to work in violation
of the Family and Medical Leave Act of 1993 ("FMLA"),
29 U.S.C. § 2601, et seq.; and unlawful retaliation in violation of the
FMLA. This case is before the Court on CG's motion for summary
This case is also before the Court on Hackett's motion for
summary judgment on CG's counterclaim. In its counterclaim, CG
requests an award of the attorneys' fees incurred in successfully
defending all or part of Hackett's lawsuit, as it argues is
prescribed by the fee-shifting provision in Hackett's Employment
For the reasons outlined below, the Court denies both motions
for summary judgment. Facts
CG is an accounting and consulting firm with offices in
fourteen states and Washington, D.C. Hackett began working as a
technology consultant at CG's Oakbrook, Illinois office on March
19, 2001. At the time Hackett was hired, CG serviced clients
using both Blackbaud accounting software and its competitor, MIP
Hackett was initially hired and trained to provide consulting
services to clients using Blackbaud in CG's Oak Brook location.
But approximately one week into her job, Hackett elected to
transfer with Michelle Scheffki, a partner, and two MIP
consultants, Jacqueline Van Nice and Kim Backe, to the company's
newly formed Joliet, Illinois office to provide consulting
services to clients using MIP. Seven consultants remained in the
Oak Brook office servicing Blackbaud clients. Scheffki, who was
also the firm-wide Director of Technology Consulting, was the
immediate supervisor of the Joliet consultants, including
Hackett became pregnant with her second child a few months
after she started working for CG, and in the fall of 2001, she
announced her pregnancy to Scheffki. According to Hackett,
Scheffki questioned her several times during her pregnancy about
whether she would return to work after the birth of her second
child, each time showing skepticism when Hackett announced her
intent to return to work after taking maternity leave. Scheffki
also allegedly expressed concern to Van Nice about Hackett's
ability to handle two children and a job and what impact
Hackett's pregnancy might have on the team.
Hackett continued to work until the birth of her daughter on
April 2, 2002, when she began a twelve-week FMLA maternity leave.
Hackett was scheduled to return to work on July 1, 2002. However,
on June 27, 2002, Scheffki informed Hackett that the Joliet
office was being consolidated into the Oak Brook office, and as a result, Hackett
was being terminated. At the time of her termination, Hackett was
the sole consultant assigned to the Joliet office. Backe had
resigned in March 2002, and Van Nice had resigned in June 2002.
Joliet's MIP clients were transferred to the Oak Brook office.
CG asserts that Hackett was terminated due to the downsizing of
the Oak Brook and Joliet technology practice and a neutral
determination by Jim Thomas, a partner in the Oak Brook office,
that the consultants employed in the Oak Brook office were
capable of handling the transferred MIP clients in addition to
their Blackbaum clients. Hackett alleges that CG was not
experiencing a significant downturn in business at this time and
that her termination was the result of pregnancy discrimination.
Summary judgment is appropriate where "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 judgment as a matter of law." Fed.R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To
determine whether or not a genuine issue of material fact exists,
the Court views the record in the light most favorable to
Hackett, the non-moving party in this case, drawing reasonable
inferences in her favor. Id. at 322.
1. Pregnancy Discrimination Claim
Hackett claims that CG violated Title VII because its decision
to terminate her was motivated by her pregnancy. The Pregnancy
Discrimination Act amended Title VII to establish that pregnancy
discrimination falls within the ambit of Title VII's prohibition
on sex discrimination. Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005
(7th Cir. 2001). The Act provides that "women affected by
pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment related purposes . . . as
other persons not so affected but similar in their ability or
inability to work." 42 U.S.C. § 2000e(k). Hackett can prove a
pregnancy discrimination claim through either direct or indirect
proof. Venturelli v. ARC Community Servs. Inc., 350 F.3d 592,
599 (7th Cir. 2003). Because the Court finds that Hackett has
provided sufficient evidence to defeat summary judgment under the
indirect method, we need not address the merits of her arguments
under the direct method.
Under the indirect approach, also known as the McDonnell
Douglas burden-shifting method, a plaintiff must initially
establish a prima facie case of discrimination. Id. at 602;
McDonnell Douglas Corp. v. Green, 441 U.S. 792 (1973). To meet
this burden, Hackett must provide evidence that (1) she was
pregnant, and her employer knew it; (2) she was performing her
duties satisfactorily; (3) she was discharged; and (4) similarly
situated employees not in the protected class were treated more
favorably. Clay, 253 F.3d at 1005. CG concedes for present
purposes that Hackett has established a prima facie case of
discrimination. Def's Mem. at 10.
The burden therefore shifts to CG to provide a legitimate,
non-discriminatory reason for its adverse employment decision.
Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 784
(7th Cir. 2004). For the purpose of the motion, Hackett likewise
concedes that CG articulated a legitimate, non-discriminatory
reason for her termination (i.e., a downturn in business). Pl's
Mem. at 7.
To survive summary judgment, Hackett must rebut CG's
articulated reason by providing evidence that it is merely a
pretext for pregnancy discrimination. Davis, 368 F.3d at 784.
In the employment discrimination context, "pretext means a dishonest
explanation, a lie rather than an oddity or an error." Kulumani
v. Blue Cross Blue Shield Ass'n, 224 F.3d 681 (7th Cir. 2000).
Hackett must come forward with evidence showing either that CG's
decision was motivated by a discriminatory reason or that CG's
stated reason is unworthy of credence. Zaccagnini v. Chas. Levy
Circulating Co., 338 F.3d 672, 676 (7th Cir. 2003). The evidence
need only "raise some doubt as to the genuineness of the given
reasons for [her] termination" to preclude summary judgment.
Smith v. Cook County, 74 F.3d 829, 831 (7th Cir. 1996).
Hackett points to numerous comments made by Scheffki during
Hackett's pregnancy and maternity leave*fn1 as evidence that
Scheffki's discriminatory animus was likely a motivating factor
in her decision to terminate Hackett. Although Scheffki has
denied making these remarks, CG assumes for the purpose of this
motion that she made comments to both Hackett and Van Nice
expressing skepticism as to whether Hackett would return to work
after maternity leave and voicing her concern about Hackett's
ability to handle her job responsibilities with two
children.*fn2 CG argues that Hackett has provided insufficient evidence to
call into question the honesty of its explanation that she was
terminated due to downsizing and the resulting elimination of her
position. CG's principal contention is that personnel other than
Scheffki made the decision to terminate Hackett and that there is
no evidence that they were aware of Scheffki's comments or acted
upon a prohibited animus.
According to CG, after the departure of Backe from the Joliet
office, Scheffki began planning to move to CG's Peoria office.
Def's 56.1 Stmt. at ¶ 40. Around this time, she recommended to
Thomas, a partner in the Oak Brook office, that Oak Brook take
back the MIP clients being served out of Joliet and transfer the
two remaining Joliet MIP consultants, Van Nice and
Hackett.*fn3 Id. In mid-June 2002, Thomas decided to
accept the transfer of the Joliet MIP practice but not the
transfer of Hackett, who was the sole consultant assigned to
Joliet once Van Nice resigned earlier in June. Id. at ¶ 48.
Thomas testified that he based this decision on his assessment
that the existing staff at the Oak Brook office had the capacity
to handle the additional work created by the transfer of the MIP
consulting practice, and "it was [his] intention . . . to protect
and enhance the job security of the members of that consulting
staff, because he knew them, was confident in their skills, and
believed that they could handle the demands of an MIP consulting
practice in addition to the Blackbaud consulting work that they
would continue to have responsibility for." Def's 56.1 Stmt. at ¶
46; Thomas Aff. ¶ 11. Thomas claims he also considered that the
Blackbaud products had been redeveloped and that Hackett would need to be retrained
if she were to transfer to Oak Brook, where she would need to
provide consulting services to both MIP and Blackbaud clients.
Def's 56.1 Stmt. at ¶ 47; Thomas Aff. ¶ 12. Thomas denies that he
considered Hackett's pregnancy or maternity leave in reaching his
decision. Def's 56.1 Stmt. at ¶ 49; Thomas Aff. ¶ 14. CG claims
that when Scheffki learned of Thomas's decision, she contacted
Priority One, CG's human resources department, which determined
there were no open technology consulting positions that might be
available to Hackett, and directed Scheffki to terminate
Hackett's employment due to the elimination of her position.
Def's 56.1 Stmt. at ¶ 51-55.
The crux of the parties' dispute on the pretext issue turns on
who made the decision to terminate Hackett, since, if Scheffki
was involved in making the decision, a fact finder could more
easily conclude that a discriminatory animus motivated the
decision. Though statements voicing doubt that an employee will
return to work after having a baby do not constitute direct
evidence of pregnancy discrimination, Illhardt v. Sara Lee
Corp., 118 F.3d 1151, 1156 (7th Cir. 1997) (citing Troupe v.
May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994), these
same statements may suffice under the McDonnell Douglas
framework. See Hodgens v. General Dynamics Corp., 144 F.3d 151,
171 (1st Cir. 1998) ("Statements by supervisors carrying the
inference that the supervisor harbored animus against protected
classes of people or conduct are clearly probative of pretext.").
Moreover, Scheffki's alleged statements go beyond doubting
whether or not Hackett would return to work and appear to
question her ability to handle her job after giving birth.
In employment discrimination cases, the plaintiff "must provide
direct or circumstantial evidence that the decisionmaker has
acted for a prohibited reason." Rogers v. City of Chicago, 320 F.3d 748, 754 (7th Cir. 2003) (emphasis in original).
Rogers defines the decisionmaker as "the person `responsible
for the contested decision.'" Id. (quoting Chiaramonte v.
Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir. 1997).
Though the Seventh Circuit has made it clear that
discriminatory feelings expressed by a non-decisionmaker are not
evidence that the decision was made for discriminatory reasons,
it has qualified this principle by observing that evidence of
discriminatory animus by a person who provides input into an
adverse decision may be relevant to show a discriminatory intent.
See Williams v. Seniff, 342 F.3d 774, 790 (7th Cir. 2003);
Gorence v. Eagle Food Centers, Inc., 242 F.3d 759 (7th Cir.
2001); cf. Schreiner v. Caterpillar, Inc., 250 F.3d 1096, 1100
(7th Cir. 2001) (discussing in dicta that although the district
court did not err in refusing to admit a non-decisionmaker's
sexist statement as direct evidence of discrimination, "[i]t
[could have been] argued, with a fair degree of plausibility,
that the admission of [the non-decisionmaker's] statements would
have been of some assistance to [plaintiff] in demonstrating
pretext"). Hackett must provide evidence tending to show that
Scheffki was directly involved in the termination decision or
that she provided enough input to Thomas and Priority One that a
jury reasonably could infer that her expressed discriminatory
feelings provided the impetus for the termination.
The Court finds that there is a genuine factual dispute as to
whether and to what extent Scheffki was involved in the decision
to terminate Hackett, and that a jury reasonably could find that
Scheffki's alleged animus motivated the termination decision. As
Hackett points out, CG's narrative of the decisionmaking process
has not been entirely consistent. In a February 21, 2003 letter
to the EEOC regarding Hackett's charged discrimination, CG's
counsel stated that "Michelle [Mickey] Scheffki [female/Director
of Technology Consulting] recommended the elimination of Ms. Hackett's position. The recommendation was
authorized by Lauren Melensek [female/Chief HR Officer] and Kelly
Renz n/k/a Guyder [female/Director of Staffing & Retention]."
Pl's Ex N. This letter made no mention of Thomas's claimed role
in the decision. Moreover, the admission that Scheffki
recommended the elimination of Hackett's position undercuts CG's
contention that Scheffki played no role in the challenged
decision. "One can reasonably infer pretext from an employer's
shifting or inconsistent explanations for the challenged
employment decision." Appelbaum v. Milwaukee Metro. Sewerage
Dist., 340 F.3d 573, 579 (7th Cir. 2003); see also Zaccagnini
v. Chas. Levy Circulating Co., 338 F.3d 672, 677 (7th Cir. 2003)
("[T]he consistency of the explanation provided by an employer at
the time of an employment decision and in an administrative
proceeding is evidence of the veracity of the employer's
explanation at summary judgment.").
Because interpretive ambiguities must be resolved in favor of
the nonmoving party on a motion for summary judgment, there is a
genuine dispute over Scheffki's role in Hackett's termination
decision. Russell v. ACME-Evans Co., 51 F.3d 64, 69 (7th Cir.
1995). Because this issue is central to the issue of pretext, the
Court denies CG's motion for summary judgment.
Furthermore, besides providing evidence that her termination
may have been motivated by discrimination, Hackett has also
provided evidence sufficient to call into question the
truthfulness of CG's proffered reason for terminating Hackett,
bolstering her pretext argument. See Zaccagnini,
338 F.3d at 676. Hackett has provided evidence that the Joliet and Oak Brook
offices did not experience a significant downturn in business
while she was on maternity leave. She contends that before she
left for maternity leave, business was brisk, Hackett Dep. at
347-358, and that there had even been discussion about hiring an
additional consultant because they "had so much work." Id. at 116; see also Van Nice Dep. at 26.
Van Nice testified that in anticipation of being the lone
consultant while Hackett was on leave, she discussed her workload
with Scheffki, because she was afraid she would be unable to
handle everything if she was the only consultant in the office.
Van Nice Dep. at 26. Jodene Kunzik, the consultant in the Oak
Brook office who ended up assuming responsibility for the
transferred Joliet MIP clients (and who had no training in MIP),
stated that she had plenty of work servicing Blackbaud clients
and did not know how she was going to balance the workload for
the two products. Pl's Ex. K at ¶¶ 5, 7.
Hackett also submits evidence that, if believed, would undercut
CG's argument that it was downsizing and did not have a need for
an additional consultant in the Oak Brook office. According to
Van Nice, after she gave her two-week notice in June 2002 (just
before Hackett was terminated), Steve Meindi called to ask her if
she had any interest in staying at CG, perhaps as a Blackbaud
consultant.*fn4 Van Nice Aff. ¶ 21. Van Nice also maintains
that she had a meeting in September 2002 with a consultant in the
Oak Brook office about joining that office's Blackbaud practice,
although nothing materialized since Van Nice was employed
elsewhere at that time. Id. ¶ 24-25. As Hackett had been trained
in Blackbaud, but Van Nice had not, Van Nice's testimony lends
some support to Hackett's claim that her pregnancy was a
consideration in the decision. Pl's Resp. at ¶ 49.
In sum, Hackett has provided evidence from which a jury
reasonably could find that CG lied about its reasons for
terminating her. Davis v. Con-Way Transp. Cent. Express, Inc.,
368 F.3d 776, 785 (7th Cir. 2004). Evidence that calls into question
the truthfulness of the employer's stated reason precludes
summary judgment. Zaccagnini, 338 F.3d at 676.
2. FMLA Reinstatement Claim
Hackett's second claim is that CG's failure to return her to
work after her maternity leave violated the FMLA. The FMLA
provides that an eligible employee who takes leave under the FMLA
shall be entitled upon return to be restored to her original
position or an "equivalent position." 29 U.S.C. § 2614(a)(1);
Phelan v. City of Chicago, 347 F.3d 679, 683 (7th Cir. 2003).
To protect these substantive guarantees, the FMLA declares it
"unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided."
29 U.S.C. § 2615(a)(1); Rice v. Sunrise Express, Inc.,
209 F.3d 1008, 1017 (7th Cir. 2000). The FMLA does not, however, entitle
any employee to "any right, benefit, or position of employment
other than any right, benefit, or position to which the employee
would have been entitled had the employee not taken leave."
29 U.S.C. § 2614(a)(3). Because Hackett was terminated while taking
FMLA leave, the Court must determine whether the termination was
illegally motivated by the employee's choice to take leave or by
some other valid reason. See Phelan, 347 F.3d at 683.
To survive summary judgment, Hackett must first show only that
she was entitled to her position; she need not prove a
discriminatory motive. Kohls v. Beverly Enterprises Wisconsin,
Inc., 259 F.3d 799, 804 (7th Cir. 2001); King v. Preferred
Technical Group, 166 F.3d 887, 892 (7th Cir. 1999). CG may
counter this by presenting evidence that Hackett would not have
been entitled to her position even if she had not taken leave.
Kohls, 259 F.3d at 804. If CG can do so, Hackett bears the
ultimate burden of overcoming CG's assertion by providing
evidence from which a reasonable jury could find that she would not have been
discharged had she not taken FMLA leave. Id.
CG says it terminated Hackett's employment due to the
elimination of her position and that it would have done so even
if she had not been on FMLA leave. Hackett has provided evidence
sufficient to draw into question CG's assertion that it would
have terminated her even if she had not been on FMLA leave. As
detailed above, Hackett has raised several genuine issues of fact
as to whether or not her termination was the result of CG
eliminating her position through a downsizing effort. Though
proof of pretext is neither necessary nor sufficient to establish
a violation of FMLA, Ogborn v. United Food and Commercial
Workers Union, 305 F.3d 763, 769 (7th Cir. 2002), the Court may
review "whether the employer's description of its reasons is
honest." Kohls, 259 F.3d at 806 (quoting Gustovich v. AT&T
Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992)). Since
a reasonable fact finder could conclude that Hackett was entitled
to return to her position as a consultant for CG and that she
would not have been terminated had she not been on leave at the
time, the Court denies CG's motion for summary judgment on count
3. FMLA Retaliation Claim
Hackett's final claim is that CG unlawfully retaliated against
her for taking FMLA leave in violation of the Act. In addition to
the substantive guarantees discussed above, the FMLA contains an
anti-retaliation provision that protects employees from being
discriminated against for exercising their rights. See
29 U.S.C. § 2615(a)(1) & (2); King, 166 F.3d at 891. Essentially,
an employer is not allowed to consider an employee's decision to
take FMLA leave as a negative factor in employment decisions.
29 C.F.R. § 825.220(c). The typical issue in these cases is "whether the employer's actions were motivated by an
impermissible retaliatory or discriminatory animus." King,
166 F.3d at 891.
FMLA retaliation claims are evaluated in the same way as claims
of retaliation under Title VII. See Buie v. Quad/Graphics,
Inc., 366 F.3d 496, 503 (7th Cir. 2004). The plaintiff can
proceed by the direct method, with direct or circumstantial
evidence that the employer acted for prohibited reasons, or by
the indirect method. Under the indirect method, if the plaintiff
establishes a prima facie case (as CG assumes Hackett can, see
Def's Mem. at 14), and the employer articulates a noninvidious
reasons for its action, the plaintiff must provide evidence from
which a jury reasonably could find this reason was a pretext. If
so, summary judgment is inappropriate. Buie, 366 F.3d. At 503.
The parties' arguments on this claim are the same as those the
Court has already discussed. Hackett has provided sufficient
evidence from which a rational trier of fact could infer that CG
was untruthful about its proffered reasons for terminating her.
The Court therefore denies CG's motion for summary judgment on
4. The Counterclaim
CG counterclaims that it is entitled to an award of its costs
and expenses, as well as any attorneys' fees it incurs in
successfully defending Hackett's claims. CG bases its contention
on a provision in Hackett's Employment Agreement with CG. The
pertinent provision states, "The Employee agrees to reimburse the
Employer for any attorney fees, costs and expenses incurred in
its enforcing all or part of this Agreement and/or in its
successfully defending all or part of any lawsuit that the
Employee may file against the Employer, its members or
employees. . . ." Def's Ex. 1. According to CG, this "prevailing employer" provision is
enforceable against Hackett in the context of this lawsuit.
Hackett maintains that this provision is void since it would
require her, as a condition of employment, to waive substantive
rights granted under Title VII and FMLA, which she contends
cannot prospectively be waived.
The Court believes it would be premature to rule on this issue
at the summary judgment stage. The appropriate time to address
the counterclaim is after a trial on the merits of Hackett's
discrimination claims. If necessary, the Court will return to
this issue at that time. Thus, Hackett's motion for summary
judgment is denied without prejudice.
For the reasons stated above, the Court denies both CG's motion
for summary judgment and Hackett's motion for summary judgment
[docket nos. 15, 17]. The date for filing the final pretrial
order is extended to November 29, 2004. The case remains set for
trial on the joint trial call to begin on January 4, 2005.