The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
Valerie Taylor ("Taylor") sued her employer, Temp-Air, for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In response, Temp-Air filed a counterclaim, seeking to recover wage and benefit payments it made on Taylor's behalf while she was on medical/disability leave.*fn1
Temp-Air has moved for summary judgment with respect both to Taylor's complaint and to its counterclaim. For the reasons explained below, the motion is denied as to Taylor's complaint; the motion is granted in part and denied in part as to Temp-Air's counterclaim.
Temp-Air provides temporary heating, cooling, and ventilation systems to the construction industry. In August 2007, Temp-Air hired Taylor as a Technical Field Representative ("TFR") for its office in Elgin, Illinois. During the time period in question, the Elgin Office employed three other TFRs, all of whom were male. Each TFR was generally assigned to a specific territory in the Illinois/Chicagoland area. In addition, each TFR maintained a list of his or her own customers who could not be contacted by other TFRs. Taylor's territory initially included an area south of Chicago as well as northwest Indiana.
In December 2007, after six months on the job, Taylor was seriously injured in a car accident. After returning to work in November 2008, Taylor was told that she had been assigned to a new territory covering the northern and central part of Indiana, and that her old territory and customer list had been assigned to another TFR. She claims that unlike the other TFRs, she was not given a customer list to work from, but instead was told that she would be responsible for developing a new list of customers from scratch. Moreover, when a partial customer list eventually was created for her, Taylor claims that, unlike the other TFRs, she was allowed no input into the customers who were included on the list. According to Taylor, the transfer was designed to set her up for failure. As of the time this motion was filed, she remained employed by Temp-Air but was on medical leave.
II. "A plaintiff alleging sex discrimination in employment under Title VII can proceed under either the direct method or the indirect, burden-shifting method of McDonnell Douglas Corp. v. Green." Petts v. Rockledge Furniture LLC, 534 F.3d 715, 720 (7th Cir. 2008) (citation omitted). Taylor proceeds exclusively via the indirect method, according to which "(1) the plaintiff must establish a prima facie case of discrimination based on her membership in a protected class; (2) once a prima facie case is made, a presumption of discrimination is established and the burden shifts to the defendant to provide a legitimate, non discriminatory reason for the challenged action; and (3) once the defendant meets that burden, the plaintiff must establish that those proffered reasons were mere pretext." Whittaker v. Northern Illinois University, 424 F.3d 640, 647 (7th Cir. 2005).
I first consider whether Taylor has successfully established a prima facie case of sex discrimination. In order to make out a prima facie case, Taylor must show that: "(1) she is a member of a protected class, (2) she met her employer's legitimate job expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees outside of the protected class received more favorable treatment." Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 666 (7th Cir. 2008). There is no dispute that, as a woman, Taylor is a member of a protected class. It is therefore necessary to examine only whether Taylor meets the remaining requirements. I conclude that she has.
First, Taylor has cited sufficient evidence to indicate that she was meeting Temp-Air's legitimate job expectations at the time of the alleged adverse employment action (viz., the transfer to her new territory). Temp-Air does not dispute that for the six-month period between when she began at Temp-Air and when she became injured, Taylor's performance had been "very successful." Def.'s Resp. to Pl.'s Stmt. Add'l Fact ¶ 18. Nevertheless, Temp-Air contends that Taylor could not have been meeting its legitimate expectations at the time of her transfer because she was on leave during this period and was not working at all.
This argument is specious. Taken to its logical conclusion, Temp-Air's reasoning would sanction virtually any adverse employment action against an employee so long as the action was taken when the employee was on leave. Far from showing that she was not meeting Temp-Air's expectations, the fact that Taylor was on leave at the time of the transfer means that Temp-Air could not reasonably have expected her to work. See, e.g., Gladden v. Winston Salem State University, 495 F. Supp. 2d 517, 523 (M.D.N.C. 2007) (holding that if the plaintiff was discharged during protected FMLA leave period, the defendant "would have had no legitimate expectation for him to be working during that time") (citations omitted); Pettus v. American Safety Razor Co., No. Civ.A. 599CV000103, 2001 WL 418723, at *3 (W.D. Va. Mar. 29, 2001) (defendant could have no legitimate expectations that the plaintiff would perform while she was on leave).
It is true that Taylor received a below-average rating when she was reviewed three months after she returned to work. See Def.'s L.R. 56.1 Stmt. ¶ 37. But this ex post determination cannot serve as an argument against Taylor's position, for as already noted, her theory is that the transfer was designed specifically to set her up for failure. See, e.g., Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 746 (7th Cir. 2002) (stating that being set up for failure "is a perfectly good theory of discrimination").
The parties next dispute whether Taylor's transfer to a new territory constitutes an "adverse employment action." The term "adverse employment action" has been "defined quite broadly in this circuit." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). As explained by the Seventh Circuit, an adverse employment action is "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Chaudhry v. Nucor Steel-Indiana, 546 F.3d 832, 838 (7th Cir. 2008) (quotation marks omitted). Further, the Seventh Circuit has stated that the "question of whether a change in working conditions is materially adverse is one of fact, and can be resolved on summary judgment only if the question is not fairly contestable." Hobson v. Potter, 264 F. Supp. 2d 711, 713-14 (N.D. Ill. 2003) (quotation marks omitted).
Taylor has come forward with sufficient evidence to suggest that her transfer constituted an adverse employment action. When viewed in the light most favorable to her, the record indicates that the situation she faced following her transfer afforded her no real chance of success: being forced to develop a new customer list from scratch is a formidable enough task on its own; but according to Taylor, the difficulty was exacerbated by the fact that she was required to travel long distances to meet with prospective customers. Attracting customers in Indiana was made more difficult still by higher shipping costs. Taylor claims that prior to her transfer, she was able to offer competitive pricing because she had substantial autonomy to offer shipping discounts to customers. After being transferred, Taylor testified that her supervisor, Steve Lupella, consistently made it difficult for her to take such measures. Pl.'s Stmt. Add'l Fact ¶ 35.
Finally, Taylor has cited evidence from which a jury could conclude that she was treated less favorably than similarly situated male employees. The parties' arguments center on two of Taylor's fellow TFRs in the Elgin Office -- Dan Lindahl and Jay Buthman. Temp-Air insists Taylor and Lindahl are not similarly situated because Lindahl has more experience than Taylor. While Taylor acknowledges that she has less experience at Temp-Air than Lindahl (whose employment with Temp-Air began in 1990), she points out that her sales experience goes back to 1993. Pl.'s Resp. to Def.'s L.R. 56.1 Stmt. ¶ 32 (citing Pl.'s Ex. 24). Ultimately, however, it is unnecessary for Taylor to show that she and Lindahl are similarly situated, since Temp-Air apparently concedes that Taylor and Buthman are similarly ...