The opinion of the court was delivered by: James F. Holderman, Chief Judge
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On April 3, 2006, plaintiff Jillian Watson ("Watson") filed a complaint against her former employer defendant Abt Electronics, Inc. ("Abt"), alleging claim of sexual harassment (later dismissed by Watson) and a claim of retaliation under Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e et seq. Abt has filed a motion for summary judgment on the remaining retaliation claim (Dkt. No. 47). Watson has filed a motion to strike, or alternatively to file a sur-reply to Abt's reply brief on its summary judgment motion (Dkt. No. 58). For the reasons stated below, Abt's motion for summary judgment and Watson's motion to strike or alternatively file a sur-reply are denied.
The court recounts the relevant facts, many of which are disputed. Watson worked in the Custom Audio Department at Abt from July 2004 to until she was fired on January 20, 2005. (Def. L.R. 56.1 at ¶¶ 1,5.) Since mid-December 2004, Paginota Sveronis ("Sveronis") was the office manager of the Custom Audio Department, and Gregory Meinholz ("Meinholz") and Bill Ekstrand ("Ekstrand") were both the department's managers. (Def. L.R. 56.1 at ¶¶ 5, 6; Pl. Resp. 56.1 at ¶¶ 5, 6.) Watson reported to all three managers. (Def. L.R. 56.1 at ¶¶ 5, 6; Pl. Resp. 56.1 at ¶¶ 5, 6; Watson Dep. at 27.)
There is a dispute of facts in the record regarding who made the decision to terminate Watson. Abt points to evidence in the record that Sveronis made the decision to terminate Watson and Meinholz approved the decision and was ultimately the one to inform Watson of her termination. (Def. L.R. 56.1 at ¶¶ 58-60.) In the court's view, however, the evidence relied upon Abt establishes that the decision to terminate Watson was in essence a joint decision made between Sveronis and Meinholz. (Def. L.R. 56.1 at ¶¶ 58-60.) Further, Watson refutes this evidence by submitting evidence establishing that Meinholz terminated her and that Sveronis had nothing to do with the decision. (Pl. Resp. 56.1 at ¶¶ 58-60.)
In addition, the parties dispute the grounds for Watson's termination. According to Watson, she was fired by Meinholz in retaliation for complaining to him about his sexual harassing her. Watson attested in her deposition that Meinholz would comment about a particular sweater she would wear and once when she was wearing the sweater touched her arm from collarbone to wrist in a way that made her uncomfortable. (Watson Dep. at 167.) Watson also asserts that for a two-week period in January 2005, Meinholz began to refer to her as "fat boobs" when the two were alone, and "FB" in front of others. (Watson Dep. at 173.) Watson "[a]fter he had said it enough times, told him it wasn't funny and asked him to stop," at which point Meinholz allegedly did. (Watson Dep. at 182.) At the time, Watson did not report Meinholz's comments to anyone else at Abt. (Watson Dep. at 183-84.) One week after Watson complained to Meinholz to stop calling her "fat boobs," Meinholz terminated her on January 20, 2005, stating that he was not happy with her performance. (Watson Dep. at 203.) The next day Watson contacted co-owner Ricky Abt to inform him about Meinholz's alleged sexual harassment and to ask him to investigate her termination. According to Watson, when Ricky Abt contacted her again he told Watson that Meinholz had "100 percent admitted to saying fat - fat boobs" but that Ricky Abt defended Meinholz, saying Meinholz had just been joking. (Watson Dep. at 221.) Ricky Abt further informed Watson that she was fired because "it just wasn't working out." (Watson Dep. at 221.) According to Watson, when Watson told Ricky Abt that she would have to have her sister, who was her "power of attorney,"*fn1 take over, Ricky Abt "got defensive," responding that he "didn't want anything to do with it," and that Abt "is a big company and they have plenty of lawyers." (Watson Dep. at 227, 229.) Later, Abt CFO Philip Peterson, who had been asked to investigate Watson's allegations about Meinholz by Ricky Abt, allegedly informed Watson's sister that he had concluded his investigation and "If anything, Jill [Watson] was fired for sexually harassing Greg [Meinholz]." (Jacquelyn Watson Dep. at 69.) Watson later found out when she was rejected for unemployment that Abt was officially stating that she was fired for misconduct related to tardiness. (Watson Dep. at 228.)
Abt offers different grounds for Watson's firing: her tardiness, attitude, and lack of dedication. These reasons are disputed in the record. Abt provides the testimony of Sveronis and Meinholz, as well as a co-worker Amanda Ciccone, to support their premise that Watson was excessively tardy to work in violation of the Custom Audio Department's attendance policies, that Sveronis had counseled Watson about her tardiness to no avail, and that Watson had received learning letters (a letter either commending or disciplining employees that goes in their personnel file) regarding her tardiness. (Def. L.R. 56.1. at ¶¶ 10-43.) These facts, however, are all disputed in the record. Abt admits that there was no written attendance policy and that each department had discretion to develop its own rules regarding attendance. (Id. at ¶ 35.) Sveronis and Meinholz testify that in the Custom Audio Department there were strict attendance policies and set schedules, under which late employees who had asked an already-scheduled employee to stay later and cover the late employees' their shifts would still be considered tardy. (Id. at ¶¶ 11-18.) But Watson provides her own testimony and testimony of a co-worker to show that, if a late employee got any other employee to cover the time period that the employee would be late, the managers did not mind, and that the Custom Audio department was very flexible about employees' schedules and constantly changed schedules to accommodate employees. (Pl. Resp. L.R. 56.1. at ¶¶ 10-18.) Also troubling is that there appears to be no set standard even between Sveronis and Meinholz regarding what constitutes being tardy: during the time Watson worked there, Sveronis believed that even one minute late was tardy, while Meinholz allowed for a cushion of six to ten minutes before disciplining an employee. (Sveronis Dep. at 42, 46-47; Meinholz Dep. at 45-49.) Watson's personnel file also contains two learning letters from Meinholz dated November 29, 2004 and December 7, 2004 regarding her tardiness. Watson claims that she did not know of these letters until this litigation, even though learning letters are supposed to be provided to the employees.
In addition, an incident on January 20, 2005, that appears to have touched off Watson's termination is disputed. According to Sveronis and Meinholz, Watson was unnecessarily rude to a new employee training in the work station where Watson normally sat, while Watson claims that she was not rude to her and that Watson was merely frustrated that work station that she was then assigned was not set up for her to do her job. Watson also asserts that Meinholz yelled and swore at her for being rude to the new employee, when she had not been rude. Meinholz denies ever talking to Watson about the incident. Finally, it is worth noting that two days before Watson was terminated, she received a positive learning letter from Custom Audio's other manager, Ekstrand, for handling a customer situation well. (Pl. Ex. H at 1.) After she was fired, Watson received a learning letter signed by Greg Meinholz and dated January 20, 2005, stating her tardiness as a cause for her termination. (Pl. Ex. E, batestamp 819.)
Subsequently, on February 9, 2005 Watson filed a timely claim with the Equal Employment Opportunity Commission ("EEOC") and received a right to sue letter on March 31, 2006. (Cmpl. Ex. A.) On April 3, 2006, Watson filed this lawsuit and Abt has responded with the pending motion for summary judgment.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, this court takes all facts and inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In considering a motion for summary judgment, this court is not required to scour the record in search of evidence to defeat the motion; the nonmoving party must identify with reasonable particularity the evidence upon which the party relies. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003). Finally, the evidence relied upon must be competent evidence of a type otherwise admissible at trial. Stinnett v. Iron Work Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002).
As a result of the disputed facts identified above, the court must find that Watson survives summary judgment on her retaliation claim through the direct method. To prove a retaliation claim under the direct method, a plaintiff must establish through either direct or circumstantial evidence that she was engaged in a protected activity, she suffered an adverse action, and there was a causal link between the two actions. Burks v. Wis. Dep't of Trans., 464 F.3d 744, 758 (7th Cir. 2006); Sylvester v. SOS Children's Vills Ill., Inc., 453 F.3d 900, 902 (7th Cir. 2006). The kind of evidence supporting a causal connection may include (1) suspicious timing, ambiguous statements, or statements from which the inference of discriminatory intent could be drawn; (2) evidence that similarly situated employees were treated differently; or (3) evidence that the employer's reason for firing the employee was pretext. Phelan v. Cook County, 463 F.3d 773, 781 (7th Cir. 2006); Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001)
The parties focus only on the causal connection prong, but the court pauses first to discuss whether Watson's telling Meinholz to stop ...