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NEAL v. RESURRECTION HEALTH CARE

April 14, 2005.

BETTY J. NEAL, Plaintiff,
v.
RESURRECTION HEALTH CARE, Defendant.



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 case.

  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.

  ARGUMENT

  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 Judgment.

  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 ...


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