The opinion of the court was delivered by: RONALD GUZMAN, District Judge
RESURRECTION'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR
RECONSIDERATION OF THE DENIAL OF RESURRECTION'S MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF'S DISCRIMINATION CLAIMS
For the reasons stated below, Resurrection Health Care
("Resurrection") respectfully, reluctantly, and with due regard
for the infrequency with which motions for reconsideration are
granted, asks that the Court reconsider its March 28, 2005
decision to deny Resurrection's motion for summary judgment on
Plaintiff's discrimination claims.
INTRODUCTION AND SUMMARY*fn1
Resurrection recognizes that motions to reconsider "do not
exist in order to allow parties to `rehash' the same argument,"
and thus confines its memorandum to three respects in which the
Court's decision concerning Plaintiff's discrimination claims
appears to have misconstrued the record and/or overlooked
controlling legal standards. Rosby Corp. v. Stoughton Trailers,
Inc., No. 95 C 511, 2004 U.S. Dist. LEXIS 11970, at *7-8 (N.D.
Ill. June 25, 2004). First, Resurrection submits that the Court misapplied the
summary judgment standard when it concluded plaintiff must
present "some" evidence to support her prima facie case and that
the Court "must assume that the events occurred as plaintiff
describes them; that is, that plaintiff did not engage in any
misconduct." (Op. at 3). Rather, the Plaintiff was required to
produce "sufficient" evidence and the Court was free to view all
facts and all reasonable inferences therefrom in the light most
favorable to Plaintiff.
Second, Resurrection submits that Plaintiff's evidence, as a
matter of law, was insufficient to support her opposition to
Resurrection's motion for summary judgment. It is
well-established that the affidavits of co-workers expressing
opinions as to a plaintiff's job performance are insufficient to
support a finding that the plaintiff "satisfied her employer's
legitimate expectations." Likewise, Plaintiff's own affidavit
contains conclusory and speculative allegations which are also
insufficient as a matter of law to create a genuine material fact
dispute. In addition, the co-workers whom Plaintiff proffered as
similarly situated lacked work performance and history comparable
to Plaintiff's; they are insufficient as a matter of law to
satisfy the "similarly situated" prong of Plaintiff's prima facie
Finally, and most important, Resurrection submits that the
Court shifted Plaintiff's burden of proof to the employer in the
pretext stage when it concluded that "defendant has failed to
shoulder its burden of articulating a legitimate reason for
plaintiff's termination." (Op. at 3). Seventh Circuit precedent
clearly establishes that Resurrection needed only articulate a
legitimate nondiscriminatory reason by proffering evidence,
which, if believed by a trier of fact (a determination not made
at the summary judgment stage), would support the finding that
unlawful discrimination was not the cause of the employment
action. Resurrection met that burden when it presented
Plaintiff's disciplinary records indicating Resurrection
terminated Plaintiff because she engaged in disrespectful treatment of
co-workers, supervisors, and patients, against Resurrection
policy. As a matter of law, the "ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508 (1993)
(emphasis added). At the pretext stage, Plaintiff's denials that
the misconduct did not occur were legally insufficient to avoid
summary judgment; Plaintiff's burden was to prove that
Resurrection did not honestly believe that Plaintiff had engaged
in misconduct warranting termination. This Plaintiff failed to do
or even assert. Therefore, Resurrection respectfully requests
that the Court reconsider its ruling denying summary judgment on
Plaintiff's claims of discrimination.
I. ON SUMMARY JUDGMENT, THE NON-MOVANT IS ENTITLED TO HAVE
REASONABLE AND JUSTIFIABLE INFERENCES MADE IN HER FAVOR BUT IS
NOT ENTITLED TO A BLANKET ASSUMPTION "THAT THE EVENTS OCCURRED AS
PLAINTIFF DESCRIBE[D] THEM."
A. Only a Genuine Issue of Material Fact is Sufficient
to Avoid Summary Judgment.
In its memorandum opinion, the Court noted that "Plaintiff
disputes virtually all of the facts concerning the incidents that
defendant says prompted her termination." (Op. at 3). Yet, "the
mere existence of a factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (emphasis in original); see Fed.R.Civ.P.
56(c); see also Salvadori v. Franklin Sch. Dist., 293 F.3d 989,
996 (7th Cir. 2002) ("The mere existence of an alleged factual
dispute is not sufficient to defeat a summary judgment motion. To
successfully oppose the motion, the nonmovant must present
definite, competent evidence in rebuttal."); Vukadinovich v. Bd.
of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th
Cir. 2002). Therefore, the existence of a purported factual dispute not
surprising given Plaintiff's contentious work behavior, not to
mention the nature of litigation generally was insufficient to
defeat a motion for summary judgment. Rather, the alleged fact
dispute must be "genuine," that is, such that "a reasonable jury
could return a verdict for the non-moving party." Anderson,
477 U.S. at 248. "A genuine issue for trial exists only when a
reasonable jury could find for the party opposing the motion
based on the record as a whole." Michas, 209 F.3d at 692
(quoting Pipitone v. United States, 180 F.3d 859, 861 (7th Cir.
1999)). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50 (internal citation omitted).
Citing Michas v. Health Cost Controls of Ill., Inc.,
209 F.3d 687, 692 (7th Cir. 2000), the Court held that on summary judgment
it must "view all evidence and draw all inferences in favor of
the non-moving party." (Op. at 3). As emphasized in Michas,
however, "[i]n determining whether any genuine issue of material
fact exists, [the court] must construe all facts in the light
most favorable to the non-moving party and draw all reasonable
and justifiable inferences in favor of that party." Id. at 692
(emphasis added). The "reasonable and justifiable" portion is
inextricable from the standard indeed, "[a]n issue is genuine"
only if "the evidence . . . would permit a reasonable
factfinder to decide the issue in favor of [the plaintiff]."
Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir., 1998);
Liberty Lobby, 477 U.S. at 249. Here, the Court concluded that
it "must assume that the events occurred as plaintiff describe[d]
them; that is, that plaintiff did not engage in any misconduct."
(Op. at 3). Resurrection submits that in light of the foregoing
standards, this assumption was neither required by the law, nor
supported by the facts and reasonable inferences therefrom.
(See Part II, infra). B. Plaintiff's Presentation of Only "Some" Evidence Was
Insufficient to Support Her Prima Facie Case and Avoid Summary
Rule 56(e) of the Federal Rules of Civil Procedure provides
that in order to avoid summary judgment, the non-movant "must set
forth specific facts showing that there is a genuine issue for
trial." See also Anderson, 477 U.S. at 250 (emphasis added).
Here, the Court held that Plaintiff need only "present some
evidence" to satisfy each prong of a prima facie case for
discrimination. (Op. at 2) (citing Foster v. Arthur Anderson,
LLP, 168 F.3d 1029, 1035 (7th Cir. 1999)). In Foster, however,
the court dismissed the evidence the plaintiff proffered to
counter her negative performance status a co-worker's affidavit
stating that the affidavit (arguably some evidence) "[got]
[the plaintiff] nowhere." 168 F.3d at 1035. Resurrection
respectfully submits that Plaintiff must instead present
"sufficient" evidence such that a reasonable jury might
return a verdict in her favor. See Anderson, 477 U.S. at 249.
As discussed below, Plaintiff has failed to do so.
II. PLAINTIFF'S EVIDENCE, CONSISTING OF HER OWN AFFIDAVIT AND
THOSE OF THREE FORMER CO-WORKERS, WAS INSUFFICIENT AS A MATTER OF
LAW TO SUSTAIN HER PRIMA FACIE CASE.
To survive summary judgment, Plaintiff must at the outset meet
her prima facie burden. This requires that she prove or, at
least, produce evidence "sufficient" to generate a genuine issue
of disputed fact as to whether: (1) she is a member of a
protected class; (2) she was performing her job satisfactorily;
(3) she suffered an adverse employment action; and (4)
Resurrection treated similarly situated Hispanic employees more
favorably. See Cowan v. Glenbrook Sec. Servs., Inc.,
123 F.3d 438, 445 (7th Cir. 1997). The first and third prongs are
undisputed; therefore, to avoid summary judgment, Plaintiff must
present evidence sufficient to create a genuine issue of material
fact on the second and fourth prongs. Plaintiff submitted four
pieces of "evidence" to oppose Resurrection's ...