(Names have been changed)
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
SUMMARY JUDGMENT MOTION
Plaintiff engaged in statutorily protected activity. She specifically told Ms. Keane and Ms. Canfield about Pitt’s sexually inappropriate conduct. During this meeting, Plaintiff told Keane and Canfield that (1) Pitt had been staring at her, (2) Truman also noticed this, (3) Pitt had looked down her shirt, (4) and Pitt had pressed down on her thigh with the palm of his hand as he was training her. (P. 56.1 Additional Fact 30). For purposes of summary judgment, Plaintiff’s testimony must be accepted. Issues of credibility are for the finder of fact to decide at trial. Stumph v. Thomas & Skinner, 770 F.2d at 97.
C. Adverse Action Was Taken
It is uncontested that Plaintiff was fired by Defendant. (P. 56.1 Additional Fact 30). It is uncontested that this constitutes an adverse action.
D. A Causal Connection Exists Between Plaintiff’s Protected Activity and Her Firing
1. Timing of Plaintiff’s Firing
It is undisputed that Plaintiff was fired on September 29, 2004, just one day after she engaged in a protected activity. Defendant harps on the fact that Plaintiff worked for it for about two weeks. What it ignores is that Plaintiff ‘s employment was cut short because of its unlawful retaliation. Plaintiff concedes that in this Circuit suspicious timing alone is not enough to go to trial. E.g., Flannery v. Recording Industry Ass'n of America, 354 F.3d 632, 643 (7th Cir. 2004). An employee must produce facts which tie the adverse decision to the plaintiff’s protected actions. Id. As discussed below, Plaintiff has produced such facts. Accordingly, Defendant’s summary judgment motion should be denied.
2. Timing of Firing and Justifiable Inference that Defendant falsely States what Plaintiff said during the 14-Day Evaluation
a. Plaintiff’s testimony about the meeting
Plaintiff consistently testified at her deposition about what occurred at the 14-Day Evaluation meeting. (P. 56.1 Additional Fact 30). It is undisputed that only Plaintiff, Angela Keane, Defendant’s Human Resources Manager, and Denise Canfield, Plaintiff’s manager, were present at this meeting. (P. 56.1 Additional Fact 27). It is also undisputed that Plaintiff received a generally positive evaluation of her performance at that meeting. (P. 56.1 Additional Fact 29).
Regarding the remainder of the meeting, there are issues of material contested fact. Plaintiff testified that during this meeting (1) she noticed that Mr. Pitt had been staring at her when she went to and from the restroom; (2) she noticed that Pitt looked down her shirt while he was training her; (3) Truman told Plaintiff that Pitt was staring at Plaintiff; and (4) that while Pitt was sitting next to her that Pitt placed his hand palm down on her thigh. (P. 56.1 Additional Fact 30). Plaintiff then scooted back in her chair and said "Whoa!" (P. 56.1 Additional Fact 7).
b. Defendant's version of the meeting
Defendant vigorously contests these facts through the testimony of Keane and Canfield. (Defendant's Statement of Facts, Nos. 25-33) Defendant also relies on typewritten notes that Keane allegedly prepared (Id. at No. 26, 31). This document is hearsay. Defendant has provided no basis for its admission.
c. Plaintiff's version of the meeting must be credited,
Regardless, the record establishes that there are contested issues of material fact as to whether Plaintiff engaged in a protected activity. Consequently, for purposes of summary judgment, Plaintiff's testimony must be credited. The Court should conclude that Plaintiff engaged in a protected activity by reporting to Keane and Canfield conduct by Pitt of a sexual nature.
d. Defendant's lack of truthfulness
As stated above, all facts must be construed in the light most favorable to Plaintiff, the non-moving party, as well as drawing "all reasonable and justifiable inferences in favor of" Plaintiff. Bellaver, 200 F.3d at 491. Because Plaintiff's version of the 14-day Evaluation must be credited, an inference should be drawn that Keane and Canfield, managers of Defendant, are not being truthful with respect to the contested issues of material facts pertaining to the 14-day Evaluation. See summary judgment standards discussed supra.
e. Causal connection has been established
Defendant's lack of truthfulness regarding these material facts is evidence of a causal connection between Plaintiff's statutorily protected activity and her firing. Turner v. Housing Authority of Jefferson County, 188 F.Supp.2d 1066, 1080 (S.D. Ill. 2002); see also O'Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002) (“evidence that calls truthfulness into question precludes a summary judgment” (quoting Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir.1995)). This evidence in combination with the suspicious timing establishes the third element of causal connection. Squibb v. Memorial Medical Center, 497 F.3d 775, 786 (7th Cir. 2007), quoting Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 758 (7th Cir. 2006) (evidence “reasonably suggests” that protected activities were related to firing). Defendant's summary judgment motion should be denied on this basis.
1 | 2 | 3 | 4 | 5 | 6 | 7
Revised: 9/20/2008
Nothing
on this page or any of the pages constituting this web site should be
construed as offering legal advice.
