JENNIFER SMITH,

Plaintiff,

v.

OLD AGE METALS,

Defendant.

(Names have been changed)

RETALIATION MEMORANDUM

I. INTRODUCTION

Admissible evidence exists that (1) one of Defendant’s employees engaged in improper conduct of a sexual nature involving Plaintiff that was unwelcome by Plaintiff, (2) Plaintiff engaged in a protected activity by reporting this improper conduct to management, (3) Plaintiff was fired one day after making the complaint, and (4) Plaintiff's firing one day after engaging in the protected activity when coupled with other circumstantial evidence constitutes unlawful retaliation because there is a causal connection between her protected activity and the firing.

Defendant's Memorandum of Law literally ignores the well established law as to when summary judgment may be granted. Because there are genuine issues of contested material facts, Defendant’s motion fails. Defendant is not entitled to summary judgment. Its motion should be denied.

II. ISSUE

Whether there are there genuine issues of material facts that as a Canfielder of law preclude summary judgment as to Plaintiff’s unlawful retaliation claim.

III. RULE

Summary judgment is appropriate only when "‘there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.'" Stumph v. Thomas & Skinner, 770 F.2d 93, 97 (7th Cir. 1985). "In determining whether a genuine issue of material facts exists, we must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Bellaver v. Quanex Corp., 200 F.3d 485, 491 (7th Cir. 2000)(citations omitted). This standard is applied "with special scrutiny to employment discrimination cases" id.; "‘[s]ummary judgment is notoriously inappropriate for determination of claims in which issues of intent, good faith and other subjective feelings play dominant roles.'" Stumph, 770 F.2d at 97 (citations omitted). As is demonstrated below, Plaintiff has unquestionably adduced facts that mandate a jury trial on her retaliation claim.

IV. MATERIAL FACTS FOR SUMMARY JUDGMENT PURPOSES

Plaintiff began her employment with Defendant on September 13, 2004. (P. 56.1 Additional Fact 1). Her position was Call Center Representative. (Id.) She was trained by Truman and Michael Pitt. (P. 56.1 Additional Fact 2). Plaintiff and Pitt sat next to each other while he trained her to answer phone calls. (Id.)

During the training, Plaintiff noticed that Pitt repeatedly stared at her while she was going to and from the restroom. (P. 56.1 Additional Fact 3). She also noticed that he was looking down her shirt several times a day. (P. 56.1 Additional Fact 4). Pitt’s staring made her “very nervous.” (P. 56.1 Additional Fact 5). While Pitt was training her he moved the telephone cord attached to Plaintiff's headset from her lap and pressed one of his hands palm down on her inner thigh. (P. 56.1 Additional Fact 6). Plaintiff scooted back in her chair and said : "Whoa!" (P. 56.1 Additional Fact 7). During Plaintiff's deposition she twice demonstrated where Pitt pressed against her thigh with the palm of his hand. (P. 56.1 Additional Fact 8).

Truman initially trained Plaintiff. (P. 56.1 Additional Fact 9). They became friends. (Id.) Truman also noticed that Pitt was staring at Plaintiff. (P. 56.1 Additional Fact 10). In particular, Truman noticed that Pitt stared at Plaintiff when Plaintiff returned from Yoga exercises on Defendant's premises and went to the restroom to change her clothing. (Id.)

Truman told Plaintiff that she saw Pitt staring at her. (P. 56.1 Additional Fact 11). Plaintiff and Truman discussed Pitt's sexual conduct. (P. 56.1 Additional Fact 12). Truman urged Plaintiff to report Pitt's sexual conduct. (P. 56.1 Additional Fact 13).

Truman spoke to a manager named Cara Jen regarding what Plaintiff had told her. (P. 56.1 Additional Fact 14). Jen then met with the Vice President of Defendant, Jennifer Telser. (P. 56.1 Additional Fact 15). Jen told Telser the following:

I told Jan [Telser] that we may possibly have a problem brewing; that [Truman] came to me and said that Jen [Plaintiff] felt that Mike [Pitt] was sexually harassing her by watching her walk across the room and standing above her, looking down her top when he’s training her.

(P. 56.1 Additional Fact 16). Telser replied that “maybe if she didn’t wear such low-cut tops, Mike wouldn’t be looking down her top.” (P. 56.1 Additional Fact 17). Telser, at her deposition, denied that she made this statement. (P. 56.1 Additional Fact 18).

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Revised: 10/1/2008

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