The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiffs, former employees of Defendant telemarketing corporation Teleperformance USA ("TP"), were laid off in the fall of 2003 and allege the following three counts against Defendant: (1) racially discriminatory layoff in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 ("Title VII"); (2) racially discriminatory failure to rehire, also in violation of § 1981; and (3) age and racially discriminatory denial of promotion in violation of § 1981 and Title VII. Defendant's motion for summary judgment is granted in part and denied in part.
Plaintiffs, all African-American, were employees that held supervisory titles at telemarketing company TP's Oakbrook Terrace facility. The implementation of the "do not call" list resulted in a decline in TP's business, forcing the company to close call centers and lay off employees nationwide. As part of this downsizing, Plaintiffs were laid off in the fall of 2003, and all were notified that their layoff was caused by a lack of business. All Plaintiffs were told that they were eligible for rehire, pursuant to TP's policy that employees eligible for rehire must have "met or exceeded [TP's] standards."
Several meetings were held to determine which employees would be laid off. The ultimate decision maker was Patricia Richert, former senior vice president of TP, and during the process Richert sought input from Ed Rundle, former director of the call center, as well as Pat Corrigan, a shift coordinator. Richert, Rundle and Corrigan are all white. Richert did not consult with Yolanda Mays, an African-American shift coordinator.
All thirteen supervisors were considered for layoff, and of these thirteen, seven were African-American, five were white, and one was Hispanic. Each supervisor's performance, seniority, and position were discussed in determining who should be laid off. These are the same factors specified for consideration by TP's written layoff policy. Defendants maintain that Plaintiffs Bostic and Taylor were laid off on the basis of their performance, and Plaintiffs Owens and Berhanu were laid off based on their seniority. In addition to Plaintiffs, two more African-American supervisors were laid off in 2003, and were subsequently rehired. Diannitza Ortiz, a Hispanic supervisor was also laid off, leaving only one African-American and five white supervisors in Plaintiffs' department. Also laid off were three white employees in different departments from Plaintiffs'.
Plaintiffs claim that their layoffs were racially motivated. Plaintiffs point to two retained white supervisors, Marc Gonzales and Debi Sobol, who they claim performed worse than Plaintiffs. Gonzales had nearly equivalent seniority to Plaintiffs Owens and Berhanu. Plaintiffs also contend that Ortiz was not involuntarily laid off, and she requested the layoff because she was pregnant and near term. The three laid off white employees in other departments either came from a job class of one or a job in which the only other employee was white.
Both parties acknowledge that Gonzales, who was suffering from AIDS and related alcoholism, was being granted a disability accommodation in 2004, but the parties dispute whether this accommodation was in effect or had been requested in 2003, at the time of the layoffs. Defendants claim that it was in effect at the time, citing Richert's testimony that TP did not lay off Gonzales because of his medical condition and the associated accommodations. Corrigan, Gonzales' supervisor, also testified that the accommodation was in effect in 2003. However, witnesses Richert, Corrigan, Rundle, and Gary Scores and Lucy-Jane Baxley, both of whom worked in human resources, could not remember exactly when the accommodation was requested. Rundle testified that he could have learned about Gonzales' issues in 2004, and Mays, another one of Gonzales' supervisors, testified that she didn't learn of any accommodations until after the layoffs occurred.
Plaintiffs further claim that prior to the layoffs, Sobol was removed from her supervisory position because of poor performance, and reassigned for five months. After the layoff, she was reinstated to a supervisory role. Prior to April 2004, TP transferred two white trainers from another facility and assigned them to serve as supervisors.
In October 2003, Plaintiff Owens filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), and Defendant responded in its position statement that several white supervisors were also laid off along with Owens. In her deposition testimony, former regional human resource manager Baxley admitted that one of these white employees was not actually a supervisor and that his name was included in the layoff list in error.
She also admitted that there was no way for the EEOC to determine that no white sales supervisors from the Plaintiffs' department were selected for layoff.
In 2004, Plaintiffs filed suit against Defendant, alleging the following three counts against Defendant: (1) racially discriminatory layoff in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 ("Title VII");*fn1 (2) racially discriminatory failure to rehire, also in violation of § 1981; and (3) age and racially discriminatory denial of promotion in violation of § 1981 and Title VII. Defendant now moves for summary judgment on all three of Plaintiffs' claims. In their response, Plaintiffs state that they no longer wish to pursue counts 2 and 3, claiming they will soon be voluntarily dismissing them, and they make no arguments as to these counts. Because Defendant's motion for summary judgment on these counts is unopposed, it is granted, and I will limit my discussion to the remaining count, count 1.
Defendant has moved to strike several portions of Plaintiffs' Local Rule 56.1 Statement of Additional Facts. First, Defendant moves to strike paragraphs 9 and 10, on the ground that they are based on statistical summaries compiled by a paralegal for Plaintiffs' counsel, Anita Martinez, who has no personal knowledge as to any of the facts therein. However, these summaries are based on TP's business records. Martinez does not swear to the accuracy of the records, only that she reviewed them and prepared summaries of the information presented in these business records. As the person who prepared the summaries she would be the person most competent to testify as to how they were prepared. She would not be competent to testify as to the demographics of Defendant's workforce, but she does purport to be.*fn2 Defendant's motion to strike these paragraphs is denied.
Defendant next moves to strike paragraphs 20 and 29 on the ground that they are based on inadmissible hearsay. Both paragraphs contain statements made to Plaintiffs by Defendant's agents concerning matters within the scope of their employment. Under Federal Rule of Evidence 801(d)(2)(D), such statements are not hearsay, and Defendant's motion to strike these paragraphs on this basis is denied. However, to the extent ...