The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiff, Manal Mashal, filed a four count complaint alleging: (1) sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, alleging that she was wrongfully terminated because she was pregnant, she retained an attorney, and her manager's vindictive attitude towards her, (2) retaliatory discharge based on her attorney having contacted defendant the same day that she was terminated, (3) intentional infliction of emotional distress, and (4) breach of contract for failing to pay overtime benefits, flight benefits and profit sharing. Defendant Royal Jordanian Airlines ("RJA") filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the reasons that follow, the motion is granted in part and denied in part.
A party is entitled to summary judgment if all of "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment the Court construes all reasonable inferences in the light most favorable to the non-moving party. Abdullahi v. City of Madison, 423 F. 3d 763, 773 (7th Cir. 2005) . The party who bears the burden of proof on an issue may not rest on the pleadings or mere speculation, but must affirmatively demonstrate that there is a genuine issue of material fact that requires a trial to resolve. Celotex v. Catrett, 477 U.S. 317, 324 (1986).
The following facts are undisputed except where noted. Plaintiff Manal Mashal was born in Jordan and worked for defendant Royal Jordanian Airlines in Damascus, Syria, from 1994 to 2001. Mashal resigned from her position with RJA Damascus on February 23, 2001, and moved to the United States. She applied for employment with RJA at O'Hare International Airport on June 4, 2001, and began working part-time for RJA O'Hare on September 15, 2001. Mashal received an employee handbook for RJA employees in the United States, in which it states that RJA employees work "at will" and may be terminated for any reason. At her deposition, in response to the question of whether she had a written employment agreement with RJA, Mashal stated "I do not have a written -- no, I do." (Def. Ex. A at 71, ln 23, Dkt. 64-3). Plaintiff has not submitted to the Court a written employment agreement.
Mashal's first two children were born while she was an employee at RJA O'Hare under a different Station Manager and Regional Manager. While pregnant with her first two children, Mashal was permitted time off to attend doctors' appointments and returned to her job after her maternity leave. On December 12, 2006, Mashal was promoted to supervisor. In October 2007, Mashal learned she was pregnant with her third child and shared the news with her co-workers, including Sami Zakha, the Station Manager of Royal Jordanian Airlines at O'Hare, and Raffaella Insabato, a Supervisor. Plaintiff, Manal Mashal, was also a Supervisor in October 2007.
In the fall of 2007, Royal Jordanian usually had one flight a day arriving and departing at O'Hare, except during the Hajj holiday season (December of that year), there were two flights a day. The RJA flight usually arrived at 4:00 p.m., but periodically was scheduled for 2:00 p.m. Due to this flight schedule, RJA employees at O'Hare could agree among themselves that one person would arrive at 9:00 a.m. or 10:00 a.m. and work until 5:00 or 6:00 p.m., and the others would arrive later at 11:00 a.m. or noon and work until 10 p.m. or later. RJA's company policy in 2007 did not require a doctor's note for an employee to take time off to visit a physician. Mashal's personnel records do not indicate that she took any sick days between October 2007 and her termination in January 2008. Mashal asserts in her affidavit that Sami Zakha refused to approve her sick days for doctors' appointments because he did not consider pregnancy an illness eligible for paid sick leave.(Pl. Ex. A, ¶ 34, Dkt. 80-1). Mashal took two annual leave days off in October of 2007, one of which was for a doctor's appointment. Mashal testified in her deposition that two or three times she took off work to go to the doctor and sometimes went to the doctor and then returned to work more hours. (Def. Ex. A, at 35, Mashal dep. at 86, ln 23 -87, ln 9, Dkt. 64-3).
On December 17, 2007, Mashal issued an upgrade to a passenger through the use of a Miscellaneous Charge Order (MCO) for which it was her responsibility to obtain payment before she left work on the evening the flight departed. Mashal voided the MCO that was used to pay for an upgrade from economy class to business class and the money representing the value of the MCO did not appear on the Royal Jordanian sales report.
On January 7, 2008, Zakha told Mashal to turn in her keys and not return to work for several days. Zakha testified that he believed Mashal was favoring a friend by allowing him to travel in business class without paying for the upgrade. On January 8, 2008, with the assistance of a friend, Mashal sent an email to RJA regarding the incident with the voided MCO. On January 9, 2008, with the assistance of the same friend, Mashal sent an updated email to RJA that was forwarded to Nabil Bataineh, the RJA North American manager in New York City. The updated email stated:
"Upon discussing the facts of this matter with Amal, the Swiss Port agent who witnesses all the unsuccessful trials of charging the credit card, Amal corrected my recollection about the incident informing me that it was her who decided to void the second MCO and not me, because she didn't want to keep hanging on without a result. This forgotten fact gave me a great relief because up until this point I considered the voiding decision to be my basic mistake in this incident and I held myself responsible for it. But now, given this fact, I don't hold myself responsible anymore for voiding the unsuccessful MCO number. I acknowledge though that, despite all the circumstances mentioned above that formed an obstacle for me to verify the completion of this transaction up until January 7, 2008, and despite my numerous trials to get it done, it was still negligence of me to let this transaction issue go unsolved and unverified for so many days."
On August 2, 2010, Amal Djellouli prepared a statement in which she said that Mashal "asked [her] to sign the report that [Amal] was the one who voided the MCO by [her]self without [Mashal's] knowledge and not according to her instruction." (Def. Ex. L, Dkt. 64-9).
A meeting was scheduled for January 10, 2008, at which Mashal was to discuss the MCO incident with Nabil Bataineh, the manager of RJA North America. On January 10, 2008, Mashal retained attorney Christopher Cooper. Attorney Cooper's affidavit states that on or about January 10, 2008, he telephoned RJA and informed the person to whom he spoke that he represented Manal Mashal and asked to attend the meeting. The meeting was cancelled. Bataineh testified that the meeting was cancelled because Attorney Cooper told him not to communicate with Mashal. Attorney Cooper stated that he called RJA's New York offices several times on January 11, 2008, and left messages. That same day he faxed a letter to RJA stating that he represented Mashal, that all communication should be directed to him and outlining Mashal's complaints against Sami Zakha. On January 11, 2008, Bataineh sent Mashal a letter terminating her employment. The letter did not state a reason for the termination. Bataineh testified in his deposition that Mashal was terminated because there was money missing from the RJA sales report from O'Hare as a result of the voided MCO. Mashal stated in her affidavit that Bataineh told her over the phone that she was terminated for having threatened the royal kingdom by obtaining a lawyer.
Approximately ten days after her termination, Mashal informed Bataineh that in the summer of 2007, Sami Zakha had improperly allowed certain passengers to travel aboard a Royal Jordanian flight without paying the proper fare, resulting in a loss of $4000 in revenue to RJA. Bataineh had no knowledge until after Mashal was terminated about her complaints ...