United States District Court, N.D. Illinois, Eastern Division
April 14, 2005.
BETTY J. NEAL, Plaintiff,
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
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 motion: her own
affidavit and the affidavits of former co-workers Dr. Philip Casella, Annie Nabors, and Mary Hampton. This showing
was insufficient as a matter of law to defeat a motion for
A. As A Matter of Law, Plaintiff Failed to Establish that She
Was Satisfactorily Performing Her Job.
Under Seventh Circuit precedent, the affidavits supplied by Dr.
Philip Casella, Annie Nabors and Mary Hampton, and relied on by
Plaintiff (see Pl.'s Facts ¶¶ 118-120), were insufficient to
create a genuine issue of material fact under the second prong of
Plaintiff's prima facie burden. "[T]he general statements of
co-workers indicating that a plaintiff's job performance was
satisfactory? are insufficient to create a material issue of
fact as to whether a plaintiff was meeting her employer's
legitimate employment expectations at the time she was
terminated." Peele v. Country Mutual Ins. Co., 288 F.3d 319,
329 (7th Cir. 2002); see also Dey v. Colt Constr. & Dev. Co.,
28 F.3d 1446, 1460 (7th Cir. 1994) (case law "give[s] little
weight to statements by supervisors or co-workers that generally
corroborate a plaintiff's own perception of satisfactory job
performance"); Anderson v. Baxter Healthcare Corp.,
13 F.3d 1120, 1125 (7th Cir. 1994).*fn2
In addition, Plaintiff's own affidavit assertions contradicted
her sworn deposition testimony and were thus, as a matter of law,
also insufficient to raise a genuine issue of material fact:
Affidavits, though signed under oath by the affiant,
are typically . . . written by the affiant's lawyer,
and when offered to contradict the affiant's
deposition are so lacking in credibility as to be
entitled to zero weight in summary judgment
proceedings unless the affiant gives a plausible
explanation for the discrepancy. Beckel v. Wal-Mart Associates, 301 F.3d 621, 623
(7th Cir. 2002); see also Czubaj v. Ball State
University, 107 Fed. Appx. 664, 666 (7th Cir. 2004)
(holding that plaintiff's affidavit assertion that
her male coworkers were permitted to work less than
20 hours per week could not create a genuine issue of
material fact because it was contradicted by her
deposition testimony in which she testified this
assertion was a "guess").
Several such contradictions are present here. For example, in
her deposition, Plaintiff testified that during one incident
which resulted in discipline, co-worker Rosa Cortez spoke to her
"loud[ly] and abrupt[ly] and in front of patients," and that
supervisor Teresa Cardona told her "Betty, patients out there.
Lower your voice." (Pl.'s Dep. At 172 (lines 17-24); 175 (lines
2-5); Def.'s Fact Resp. ¶ 83). By contrast, Plaintiff's affidavit
stated that "[a]t no time was there any yelling or screaming
between Rosa [Cortez] and Plaintiff, and Theresa [sic] [Cardona]
never told Plaintiff to stop her behavior." (See Def.'s Reply
Mem. at 7). In her Statement of Facts, Plaintiff similarly
contradicted her deposition testimony by denying "having been
told to stop this behavior by Theresa [sic] Cardona as that never
happened." (Pl.'s Facts ¶ 87). Because Plaintiff provided no
explanation for these serious, material discrepancies, her
affidavit revisionism was insufficient to create a triable issue;
it should be disregarded as a matter of law in favor of the
account she gave in her deposition. See Beckel,
301 F.3d at 623. Under that account, Plaintiff was indeed involved in a
"loud," "abrupt" confrontation with her supervisor during which
her supervisor (in Plaintiff's words) instructed her to "lower
[her] voice." (Pl.'s Dep. at 172, 175).
In another instance of contradicting her own deposition
testimony, Plaintiff identified a "Jolene" as a comparable
employee, stating that "Jolene" was a Hispanic Registrar who took
a long break and should have been but was not disciplined. (Pl.'s
Facts ¶ 104). In her deposition, however, Plaintiff testified that she believed "Jolene" had
received permission for this extended break. (Pl.'s Dep. At
157, Def.'s Mem. at 11). Therefore, "Jolene" did not engage in
misconduct and escape discipline; instead, she requested and
received permission for her extended break, and thus is not
comparable at all.
Even if Plaintiff's affidavit were not contradicted by her own
deposition testimony, it would fail to raise a genuine issue of
material fact for a second reason. Rule 56(e) requires that an
affidavit opposing summary judgment "shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify as to all matters stated therein."
Plaintiff's affidavit fails on each of these criteria. Among
other things, Plaintiff's affidavit impermissibly: speculated as
to Resurrection's state of mind (Pl.'s Decl. ¶¶ 31, 32, 40, 42,
61, 64), see, e.g., Filippo v. Northern Indiana Public Service
Corp., 141 F.3d 744, 750 (7th Cir. 1998); summarily assumed
(without evidence) that her poor treatment at the hands of his
supervisor was discriminatory (Pl.'s Decl. ¶¶ 40, 42, 47, 48, 49,
50), see, e.g., Cowan v. Glenbrook Security Servs., Inc.,
123 F.3d 438, 444 (7th Cir. 1997); consisted exclusively of her own
"uncorroborated and unsubstantiated testimony" and allegations
(Pl.'s Decl., passim), see, e.g., Weeks v. Samsung Heavy
Industries Co., 126 F.3d 926, 939 (7th Cir. 1997); rested on her
subjective belief that neutral comments were discriminatory
(Pl.'s Decl. ¶¶ 40, 48, 50, 54, 60, 64), see, e.g., Mills v.
First Federal Savings & Loan Ass'n, 83 F.3d 833, 841 (7th Cir.
1996); and contained "nothing beyond her own conclusory
assertions of discrimination" (Pl.'s Decl. ¶¶ 41, 46, 51, 52),
see, e.g., Cliff v. Bd. of Comm'rs. of the City of
Indianapolis, 42 F.3d 403, 412 (7th Cir. 1994). See Cichon v.
Exelon Generation Co., LLC, No. 03-3724, 2005 U.S. App. LEXIS
4557, at *12 (7th Cir. Mar. 21, 2005) (affirming the district
court's refusal to accept plaintiff's responses to defendant's
statement of facts because he "supported [his] responses with self serving
affidavits or unauthenticated documents").
B. As A Matter Of Law the "Comparables" Plaintiff Identified
Were Not "Similarly Situated" To Her and Did Not Satisfy the
"Similarly Situated Prong" of Her Prima Facie Case.
The Court concluded that Plaintiff adduced a sufficient fact
issue concerning whether Resurrection treated similarly situated
Hispanics more favorably than Plaintiff. (Op. at 3) (citing
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000) for the proposition that "employees are similarly situated
if they `deal? with the same supervisor [and are] subject to the
same standards") (alterations by the Court). Radue held:
[A] plaintiff must show that he is similarly situated
with respect to performance, qualifications and
conduct. This normally entails a showing that the
two employees dealt with the same supervisor, were
subject to the same standards, and had engaged in
similar conduct without such differentiating or
mitigating circumstances as would distinguish their
conduct or the employer's treatment of them.
Radue, 219 F.3d at 617-18 (internal citation omitted) (emphasis
added). The facts of Radue parallel those presented here and
In Radue, the plaintiff argued that he was similarly situated
to three employees who, in the employer's reduction in force
(RIF), were transferred to different departments while he was
instead terminated. Id. at 618. The court concluded that "even
if [the plaintiff] demonstrated some likeness" to the three
employees, "he was substantially dissimilar to them in two
material ways: he had previous job performance problems and he
communicated to superiors that he hoped he could bide his time
with the company for two more years in order to qualify for a
good severance package." Id. Whereas the plaintiff "was
perceived as having a drinking problem, had episodes of
non-attendance, and was thought to procrastinate on projects,"
the other employees "were not previously cited for substantial
performance problems and never manifested an intent to make a quick departure, which makes that materially different
from [the plaintiff]." Id. at 618-19. The court concluded,
"[b]ecause these distinctions were substantial enough to account
for the different treatment [the plaintiff] claims he received,
[the plaintiff] has failed to show that he was sufficiently
similar" to any of the three employees he cited. Id.
Here, Plaintiff identified a list of people who allegedly
engaged in conduct similar to hers and who were not disciplined.
(See Pl.'s Facts ¶¶ 99-104). Yet Plaintiff adduced no evidence
that she was similarly situated to any of these "comparable"
employees "with respect to performance, qualifications and
conduct." Radue, 219 F.3d at 617-18 (emphasis added). Plaintiff
identified "Marilyn" as a comparable but did not assert (much
less proffer evidence) that "Marilyn" was comparable to her in
terms of work performance, or whether "Marilyn" shared the same
supervisor as Plaintiff. (Pl.'s Facts ¶ 99); see Radue,
219 F.3d at 618 (plaintiff's failure to show comparable employee had
common supervisor precluded a showing of similarity because when
"different decision-makers are involved, two decisions are rarely
similarly situated in all relevant respects") (citation omitted).
Plaintiff also identified Leslie Kascher (Pl.'s Facts ¶ 100),
Beverly Rodriguez (Pl.'s Facts ¶ 102), and Betsy Matias (Pl.'s
Facts ¶ 102) as comparables; however, as a matter of law, these
three cannot be comparables because they were supervisors, not
Registrars like Plaintiff, and because Plaintiff did not adduce
any evidence as to each of the supervisors' work performance
history. (Pl.'s Facts ¶¶ 100-102). Plaintiff identified one
comparable as an "Hispanic Registrar-who was not disciplined,"
but asserts no other information (and points to no evidence)
regarding the employee's name, work performance history, or
supervisor. (Pl.'s Facts ¶ 102). "Lourdes" is similarly
identified by Plaintiff but, again, Plaintiff does not provide
any other information other than her bald assertion that Lourdes
engaged in misconduct and was not disciplined. (Pl.'s Facts ¶
102). By Plaintiff's own account, another supposed comparable ("Ibez") is an employee who did not
work in Plaintiff's department, and Plaintiff provides no
foundation or evidence for her assertion that "Ibez" was not
disciplined for what Plaintiff perceived as misconduct. (Pl.'s
Facts ¶ 103). Lastly, Plaintiff identifies a "Jolene" as a
comparable, alleging that "Jolene" was a Hispanic Registrar who
took a long break and was not disciplined. (Pl.'s Facts ¶ 104).
As noted, however, Plaintiff testified that "Jolene" had received
permission for this break. (Pl.'s Dep. At 157, Def.'s Mem. at
11; see supra Section II.A).
Therefore, none of Plaintiff's supposed "comparables" is
sufficient to satisfy the "similarly situated" prong of
Plaintiff's prima facie case. See also Kriescher v. Fox Hills
Golf Resort and Conference Center, 384 F.3d 912, 916 (7th Cir.
2004) (plaintiff alleged two employees violated company rules
"but she has offered no evidence that her duties were the same as
theirs or that their alleged rule violations were comparable to
her conduct. . . ."); Hobson v. Potter, 100 Fed. Appx. 556, 560
(7th Cir. 2004) (plaintiff's production of a list of names of
nine other employee couples whom she identified as "similarly
situated," and not subject to the same employment action, was
insufficient to establish that the employees were treated more
favorably and thus plaintiff failed to establish a prima facie
case of discrimination).
III. AT THE PRETEXT STAGE, PLAINTIFF IS NOT ENTITLED TO HAVE
ALL FACT DISPUTES RESOLVED IN HER FAVOR; RESURRECTION'S BURDEN IS
ONLY TO ARTICULATE A LEGITIMATE NON-DISCRIMINATORY REASON,
"WHICH, IF BELIEVED BY THE TRIER OF FACT, WOULD SUPPORT A
FINDING THAT UNLAWFUL DISCRIMINATION WAS NOT THE CAUSE OF THE
The burden to prove pretext was on Plaintiff and not on
Resurrection. However, the Court's pretext analysis stated:
The burden now shifts to defendant to articulate a
legitimate, non-discriminatory reason for her
discharge. Von Zuckerstein v. Argonne Nat'l Lab.,
984 F.2d 1467, 1472 (7th Cir. 1993).*fn3 The reason defendant
offers is plaintiff's alleged misconduct. As noted
above, however, the record compels us to assume that
no misconduct actually occurred. Thus, defendant has
failed to shoulder its burden of articulating a
legitimate reason for plaintiff's termination. Its
motion for summary judgment on plaintiff's
discrimination claims is, therefore, denied.
(Op. at 3, emphasis added). In St. Mary's Honor Center v.
Hicks, the Supreme Court reversed the lower court's judgment
that the defendant employer had failed to meet its burden of
proof at the pretext stage and was thus not entitled to summary
judgment. 509 U.S. 502, 525 (1993). The Supreme Court defined the
pretext analysis as one in which "`[t]he defendant must clearly
set forth, through the introduction of admissible evidence,'
reasons for its actions which, if believed by the trier of
fact, would support a finding that unlawful discrimination was
not the cause of the employment action." Id. at 507 (emphasis
in original). "By producing evidence (whether ultimately
persuasive or not) of nondiscriminatory reasons, petitioners
sustain their burden of production. . . ." Id. at 509 (emphasis
added). "[T]he determination that a defendant has met its burden
of production (and has thus rebutted any legal presumption of
intentional discrimination) can involve no credibility
assessment." Id. at 509 (emphasis added). The burden of
production then returns to the plaintiff to demonstrate "that the
proffered reason was not the true reason for the employment
decision." Id. at 508. "[T]he ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff."
Id. at 508 (quoting Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248
, 253 (1981)).
Resurrection has amply articulated its reason for terminating
Plaintiff that she repeatedly and despite warnings engaged in
disruptive and disrespectful behavior toward coworkers,
supervisors, and patients. (See Def.'s Facts & Pl.'s Fact Resp.
¶¶ 20, 24, 26, 28, 31-34, 38, 39, 44, 84, 96; Def.'s Reply Mem. at 5). Therefore, the
burden of production shifted to Plaintiff to prove by a
preponderance of the evidence that Resurrection's legitimate,
nondiscriminatory reason was a lie and a cover for
discrimination. See Michas v. Health Cost Controls of Illinois,
Inc., 209 F.3d 687, 694 (7th Cir. 2000); Billups v. Methodist
Hospital of Chicago, 922 F.2d 1300, 1302 (7th Cir. 1991). "[A]
reason cannot be proved to be `a pretext for discrimination'
unless it is shown both that the reason was false and that
discrimination was the real reason." St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).
Plaintiff did not adduce any evidence that even remotely
suggested that Resurrection did not honestly believe it was
terminating Plaintiff due to her misconduct. (See Pl.'s Mem.
and Facts). This failure, as a matter of law, leaves no issue for
trial. In Michas, a case relied upon by the Court here, the
Seventh Circuit addressed this precise situation:
To show pretext, Michas must present evidence from
which we may infer that HCC did not, at the time of
his discharge, honestly believe the reason they gave
for firing him. Michas provides no evidence that HCC
did not believe that it needed to cut costs where it
could. Instead, Michas again wishes us to infer from
the circumstantial evidence that a seemingly
legitimate business decision was based on
discriminatory motive. In the absence of any direct
evidence, however, we will not second-guess the
business decisions made by an employer.
Michas, 209 F.3d at 695; see also Hudson v. Chicago Transit
Authority, 375 F.3d 552
, 561 (7th Cir. 2004) (plaintiff failed
to establish material issue of fact because he had not presented
evidence sufficient to show the legitimate nondiscriminatory
reason articulated by the employer was anything other than the
reason for which he was terminated); Krchnavy v. Limagrain
Genetics Corp., 294 F.3d 871
, 876 (7th Cir. 2002) ("It was
insufficient `for the employee to show that the employer acted
incorrectly or undesirably by firing him'; instead `the employee
must show that the employer did not honestly believe in the
reasons it gave for firing him.'") (emphasis added); Guerrero
v. Ashcroft, 253 F.3d 309
, 314 (7th Cir. 2001) (requiring that
plaintiff provide evidence that employer's failure to hire him
was "a sham or not based in fact"); Logan v. Caterpillar, Inc., 246 F.3d 912
, 920-21 (7th Cir.
2001) ("[P]retext is defined as `a lie, specifically a phony
reason for some action. . . . In order to show pretext, however,
`it is not enough for the plaintiff to simply assert that the
acts for which ?he was terminated did not occur. . . . He must
provide some evidence that the employer did not honestly believe
the reasons given for his discharge.") (internal citation
Thus, it is insufficient that Plaintiff predictably (without
evidence) denies that she engaged in "[a] pattern of
unprofessional or disruptive behavior" (Pl.'s Fact Resp. ¶ 19);
"treated patients or staff in an offensive and disrespectful
manner" (Pl.'s Fact. Resp. ¶ 20); "became extremely hostile, rude
and argumentative" toward her supervisors (Pl.'s Fact. Resp. ¶
24); engaged in "conduct [that] was unacceptable or violated any
claimed code of professional conduct" (Pl.'s Fact. Resp. ¶ 25);
deserved a "written warning" for her misconduct (Pl.'s Fact.
Resp. ¶ 29); or made any registration errors (Pl.'s Fact. Resp.
¶¶ 31). Plaintiff cannot meet her pretext burden through such
facile denials or idiosyncratic opinions. See, e.g., Gustovich
v. AT&T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992)
("An employee's self-serving statements about his ability . . .
are insufficient to contradict an employer's negative assessment
of that ability," and "do nothing . . . to establish that the
proffered reason is a pretext for discrimination."); see also
Cichon v. Exelon Generation Co., No. 03-3724, 2005 U.S. App.
LEXIS 4557, at *15 n. 8 (7th Cir. Mar. 21, 2005) (no support for
plaintiff's allegations that he was the only supervisor
discharged and that he was told he was the best candidate for the
job other than plaintiff's "own self-serving and unauthenticated
statements, which are insufficient to create a genuine issue of
material fact"); Billups, 922 F.2d at 1303 (plaintiff's denial
that the performance issues occurred and assertion that she had a
good work record prior to the alleged incidents were
"self-serving remarks standing alone [which] are insufficient to
raise doubt as to the credence of the employer's explanation for termination");
Simmons v. Chicago Board of Education, 289 F.3d 488, 493-94
(7th Cir. 2002) (affirming summary judgment for employer where
employee produced only his own affidavit contesting employer's
articulated reason for termination, since "it is unclear why this
affidavit, standing alone, should persuade a trier of fact that
[the plaintiff's supervisor's] version of events, supported by
[the three next superior supervisors] is unworthy of belief");
Williams v. Williams Electronics Inc., 856 F.2d 920, 924 (7th
Cir. 1988) (employee's self-serving assertions regarding her work
ability insufficient to create a genuine issue of material fact
as to pretext).
For these reasons, Resurrection respectfully requests that the
Court reconsider the denial of its motion for summary judgment on
Plaintiff's claims for discrimination.