(Names have been changed)
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
SUMMARY JUDGMENT MOTION
As discussed supra, the 14-Day Evaluation meeting occurred on September 28th. Defendant alleges that Plaintiff violated the confidentiality instruction by sending an email to Truman. (P. 56.1 Additional Fact 35) Defendant further asserts that Plaintiff violated Defendant's personal email policy. (Id.)
Telser alleges that later on September 28, 2004, she met again with Keane and Keane in Keane's office and a decision was made to fire Plaintiff. (P. 56.1 Additional Fact 34). Telser admits that she was one of the decision-makers in making the determination that Plaintiff should be fired. (Id.).
Returning to Jen, her testimony must be credited for purposes of the pending motion. Based on Jen’s testimony, an inference exists that Telser’s deposition testimony is false. The clash in facts between Jen's testimony and Telser's testimony is material. It means, for purposes of summary judgment, that Telser testified falsely about what Jen told her.
Based on the current record, Plaintiff does not know whether Telser told Keane and Keane everything that Jen told Telser on September 27th. But that does not matter. For purposes of this motion, if Telser relayed to Keane and Keane all of the information that Jen told her, then Keane's testimony about what was said at the 14-Day Evaluation regarding Pitt does not reflect what Telser told Keane. If Telser, as Vice President and a decision-maker, failed to relay all of the information provided by Jen to Keane and Keane, then Telser's testimony about what she said at that meeting with Keane and Keane is false. Either way, coupled with the timing of Plaintiff's firing, a causal connection exists between Plaintiff's protected activity and her firing. Unlawful retaliation has again been established for purposes of the pending summary judgment motion. It should be denied on this basis.
3. Timing of Firing and Shifting Reasons for Firing decision
An employer’s shifting reasons for an adverse action are evidence of retaliation. Harvey v. Office of Banks and Real Estate, 377 F.3d 698, (7th Cir. 2004); see Rudin v. Lincoln Land Community College, 420 F.3d 712, 726-27 (7th Cir. 2005). During the Illinois Department of Human Rights investigation, Defendant's attorney wrote the Department in response to an inquiry by that agency. (P. 56.1 Additional Fact 36, Attachment B to Appendix). He stated that "Old Age wants to emphasize that [Plaintiff] was not discharged because of her abuse of email." (P. 56.1 Additional Fact 36). Defendant's attorney further informed the Department that Plaintiff "would not have been terminated solely for the email usage. (Id.) For purposes of the pending motion, Defendant alleges that Plaintiff was fired for her alleged breach of confidentiality and her personal use of email. Shifting reasons for Plaintiff’s firing coupled
with the timing of Plaintiff's firing demonstrates that a causal connection exists between Plaintiff's protected activity and her firing. Unlawful retaliation has again been established for purposes of the pending summary judgment motion. It should be denied on this basis.
4. Time of Firing and Emails Produced by Defendant
Defendant alleges that during the evening of September 28, 2004, after Plaintiff’s 14-Day review, and after Ms. Canfield allegedly retrieved personal emails that Plaintiff had sent, a meeting occurred that was attended by Ms. Gittler, Ms. Telser and Ms. Keane. (P. 56.1 Additional Fact 34). Ms. Telser, Defendant’s Vice President, at her deposition, alleged that Ms. Canfield had given the stack of emails to Ms. Keane. (P. 56.1 Additional Fact 32). Telser further alleged that Keane showed her the stack of emails. (Id.) Telser testified that she was “sure” that she would be able to identify that stack of emails. (Id.) Telser was then shown a stack of emails identified as Telser Exhibit No. 2. (Id.) (Attachment C to Plaintiff’s Appendix). Telser was asked if Exhibit No. 2 was the stack that was shown to her by Keane. (Id.) She was told “to take as much time as [she] need[ed] to review Exhibit No. 2. (Id.) Telser’s response was “This appears to be the stack of e-mails.” (Id.)
Despite the fact that Telser and Defendant alleges that the stack of emails, Telser Exhibit No. 2, was considered on the night of September 28th, in conjunction with Defendant’s decision to fire Plaintiff, the stack contains emails that were sent and received on September 29, 2004. (P. 56.1 Additional Fact 33). Numerous emails sent or received on September 29th are included as part of Telser Exhibit No. 2. (Id. See ECF Doc. No. 56-4, pages 41-63).
Ms. Telser’s testimony that she, Ms. Gittler and Ms. Keane during the evening of September 28, 2004, considered emails sent or received on September 29th as a basis to fire Plaintiff, coupled with the timing of Plaintiff's firing, demonstrates that a causal connection exists between Plaintiff's protected activity and her firing. Unlawful retaliation has again been established for purposes of the pending summary judgment motion. It should be denied on this basis.
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Revised: 9/20/2008
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