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Nelson v. Rosebud Restaurants


September 21, 2005


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Plaintiff Brenda Nelson has sued her former employer, Rosebud Restaurants, Inc., under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, alleging gender-based discrimination. Nelson claims that Rosebud fired her and other female employees to achieve an all male wait staff and an "old-world Italian" atmosphere. Rosebud has moved for summary judgment. For the following reasons, the Court denies the motion.


Nelson began working for Rosebud as a server at one of its well known Italian restaurants, Carmine's on Rush, in May 1998. She enjoyed her work and did not receive a single formal reprimand during the first five years of her employment. Things changed, however, when Rosebud hired new management for Carmine's in November 2003. This group, led by Marco Rastelli, determined that servers were not paying enough attention to detail and set out to improve the wait staff's performance. Rastelli raised expectations and insisted that, among other things, servers arrive on time for their shifts and complete side work more thoroughly. The term "side work" refers to those duties not related to taking and delivering food orders. Those duties might include restocking condiments, ice, and silverware, and cleaning various areas of the restaurant after hours.

On January 18, 2004, Carmine's suspended three servers, including Nelson, because they allegedly left their common work station in poor condition at the end of their shift. Though Nelson claims she left the restaurant early that night after having her station checked by a manager, Rastelli determined that all three servers were equally responsible for the mess. When Nelson returned from her one week suspension, she suspected that her job might be in jeopardy, so she spoke with Rastelli to ascertain whether her suspicions were true. Rastelli, to Nelson's surprise, told her that management loved her because she did good work and that her job was not in jeopardy.

During the winter months, business at Carmine's typically slowed, so according to Rastelli, he decided to reduce the number of employees. Management met on a near daily basis to discuss which employees were not performing up to company standards and made terminations accordingly. Unfortunately for Nelson, Rosebud decided to include her among the group of terminated servers. Rosebud claims that it was because she was tardy for her shifts and failed, after repeated warning, to complete her side work in an acceptable manner. Nelson denies that she was ever late for work and also denies being warned about side work. She also claims that her termination was part of a larger plan to create an "old-world Italian" atmosphere that included all male servers. According to Nelson, from the time Rastelli began work in November until she was fired in March, the number of female servers on the weekly work schedule dropped from thirty-five to two. Rosebud denies this allegation.


On a motion for summary judgment, the law requires the Court to consider the evidence in the light most favorable to Nelson, the non-moving party in this case, and to draw reasonable inferences in her favor. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must look at the evidence "as a jury might, construing the record in the light most favorable to the non-movant and avoiding the temptation to decide which party's version of the facts is more likely true." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

Nelson proceeds under the familiar McDonnell Douglas v. Green indirect method to prove her gender discrimination claim. 411 U.S. 792, 802 n. 13 (1973). To survive Rosebud's motion for summary judgment, Nelson must put forth evidence from which a jury reasonably could find that she is a member of a protected class, she was satisfying Rosebud's legitimate job expectations at the time of her termination, she was discharged, and other similarly situated non-class members were treated more favorably. Id. If Nelson establishes a prima facie case, then the burden shifts to Rosebud to put forth a legitimate, non-discriminatory reason for the termination. If Rosebud satisfies its burden, then the inference of discrimination disappears, and Nelson must put forth evidence that Rosebud's reason was a pretext for discrimination. Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005-06 (7th Cir. 2001).

As a preliminary matter, it should be noted that in its opening brief, Rosebud argued only that Nelson did not satisfy Rosebud's legitimate job expectations and that she could not establish pretext. In its reply brief, however, Rosebud also argued that Nelson cannot point to a similarly situated person outside her protected class who was treated more favorably than she was. Because arguments raised for the first time in a reply brief are waived, see, e.g., EEOC v. Michelin North America, Inc., 47 F. Supp. 2d 984, 986 (N.D. Ill. 1999), the Court only considers the arguments in Rosebud's opening brief: that Nelson's performance was unsatisfactory and that Rosebud's proffered reasons for termination were not pretextual.*fn1

In many cases, like this one, the issue of satisfactory performance and pretext merge because an employee's proof of satisfactory performance undermines the honesty of the employer's proffered reason for termination. See Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001) ("[the] issue of satisfactory job performance often focuses on the same circumstances as must be scrutinized with respect to the matter of pretext."). Thus, if Nelson demonstrates that she was meeting Rosebud's legitimate expectations at the time she was fired (i.e., that she was not late and performed side work adequately), then she can use the same evidence to prove pretext. Rosebud's articulated reason for its actions is pretextual if it had no basis in fact, did not actually motivate Rosebud's decision, or was insufficient to motivate its decision. Grayson v. O'Neill, 308 F.3d 808, 820 (7th Cir. 2002).

Rosebud claims that it fired Nelson because she often arrived late for work. Nelson says she was never late and produces her employee time card to prove it. That document lists the days that Nelson worked during the month of February 2004 and indicates that, with one exception, she always arrived at work by 4:00, her undisputed start time. On one day she arrived at 4:02, but that was within a five minute window she contends was allowed by the management. Nelson Dep. at 34. Given this document alone, a jury reasonably could find that Nelson was satisfying her employer's job expectation of arriving on time. Nelson also provides more. Rosebud completed a report describing the reasons for her termination, and though the document contains twenty possible reasons for termination, including tardiness, the document states that Nelson was terminated for "other reasons." In addition, a space on the form which allows the employer to describe the circumstances of the termination is left empty. Given this evidence, a jury reasonably could find that Nelson was satisfying Rosebud's legitimate job expectation of arriving at work on time and that tardiness was not the real reason she was terminated. See Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 676-77 (7th Cir. 2003) (holding that plaintiff put forth sufficient evidence of pretext where defendant gave one reason for termination during discovery and in its initial brief and different reason in reply brief); Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 634-35 (7th Cir. 1996) (holding that plaintiff put forth sufficient evidence of pretext where employer gave one reason for adverse action at time of termination and another reason at trial).

We next address the second alleged reason for Nelson's termination: that despite repeated warning, she did not thoroughly complete her side work. Nelson claims that this reason is less than honest because management never warned her that she completed side work in an unsatisfactory manner and because this reason was not listed on her termination report. It is not completely true that Rosebud never warned her about her side work, since it once suspended her for that reason. At the same time, Nelson claims that a manager checked her side work on the night she was suspended and told her that she had performed it adequately. Nelson Dep. at 181. Moreover, upon Nelson's return from suspension, Rastelli allegedly assured her that her job was safe and that she was doing a good job.

Nelson also offers her termination report, which includes a space for termination based on "unsatisfactory job performance" but indicates instead that she was terminated for "other reasons." See id. And as noted earlier, the same space on the form which allows the employer to describe the circumstances of the termination is left blank. Taking the evidence in the light most favorable to Nelson, as we must on this motion for summary judgment, the Court concludes that a jury reasonably could find that poorly completed side work was not a real reason Nelson was terminated.


For the foregoing reasons, the Court denies Rosebud's motion for summary judgment [docket no. 27]. The date for filing the final pretrial order is extended to October 19, 2005. The case is set for status hearing on October 3, 2005 at 9:30 a.m. for the purpose of discussing the possibility of settlement.

MATTHEW F. KENNELLY United States District Judge

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