Opinion
IP01-1774-C-K/T
July 31, 2003
ENTRY ON MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This is a case brought under Title VII and the Pregnancy Discrimination Act (PDA). The Plaintiff alleges that she was subjected to sexual harassment in her employment, retaliated against for complaining about the harassment, and denied employment because of her pregnancy. She also alleges a state law retaliation claim under the Indiana Civil Rights Law. The Defendant moves for summary judgment on the Amended Complaint. The court decides as follows.
I. Summary Judgment Standard
When entertaining a summary judgment motion, the court takes the facts and draws all reasonable inferences from the facts in the light most favorable to the non-moving party, here the Plaintiff. Venturelli v. ARC Cmty. Servs., Inc., No. 02-2294, — F.3d —, 2003 WL 21659465, at *3 (7th Cir. Jul. 16, 2003); Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 937 (7th Cir. 2003). Summary judgment may be granted only when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Venturelli, 2003 WL 21659465, at *3.
II. Background Facts
These are the facts as supported by the parties' evidentiary submissions and viewed in the light most favorable to the Plaintiff. The Defendant Correctional Management Company d/b/a Ladoga Academy (CMC) owns and operates private juvenile residential and detention treatment facilities in Indiana. In or about early March 2000, the Plaintiff Mary Clore applied for a Case Manager position with CMC and indicated a willingness to be considered for other open positions. At that time, her sister-in-law, Shelly Richardson, was the Human Resources Director at CMC's Ladoga facility.
Ms. Richardson subsequently married and changed her name, but for convenience the court refers to her as Ms. Richardson throughout this entry.
Ms. Clore interviewed with Ms. Richardson, Steve Graves, the Facility Director, and Bob Burns, the Regional Director. Around this time, Ms. Clore learned that she was pregnant. She told Ms. Richardson about her pregnancy. Ms. Richardson did not discuss Ms. Clore's pregnancy with Phyllis Brown, the Director of Treatment for the facility who had the authority to hire the treatment team, including Case Managers.
Ms. Clore made it to a second interview with Ms. Brown, Mr. Graves and Dr. Gary Meunier, a psychologist assisting CMC in selecting the treatment team. At the end of the second interview, Ms. Clore was offered the Case Manager position pending the results of a drug screen. A few weeks later, she took a drug screen and personality test. Because the Ladoga facility was not scheduled to open until four weeks after that, she was told she would be called in the near future.
Apparently, Ms. Brown had second thoughts about hiring Ms. Clore as a Case Manager, particularly because of her lack of a clinical background. Ms. Brown also perceived an inability to mesh Ms. Clore's personality with those of the other candidates she had decided to hire for the treatment team. And, when she contacted some of Ms. Clore's references, they were unable to provide any assessment of her work abilities. Because of this, Ms. Brown decided that Ms. Clore should not be hired as a Case Manager but as a Youth Specialist instead. Ms. Richardson called Ms. Clore to advise her that she could not have the Case Manager position after all, but offered her a Youth Specialist position. Ms. Clore rejected this offer. A few days later, she had a miscarriage.
CMC does not expressly rely on the personality reason in its Statement of Material Facts, but does expressly rely on it in its reply brief. Though the court normally does not consider arguments raised for the first time in a reply brief, there are sound reasons for considering this additional reason here. First, though not included in CMC's Statement of Material Facts, the reason was expressly stated in Ms. Brown's affidavit filed in support of and with those facts. Second, after CMC filed its reply brief, Ms. Clore filed a surreply brief along with evidence in support of her surreply, which gave her the opportunity to respond to any new arguments raised in the reply. Thus, the court considers CMC's explanation that Ms. Clore was not given the Case Manager position because Ms. Brown perceived an inability to mesh Ms. Clore's personality with those of the others she had already decided to hire for the treatment team.
Later, in the fall of 2000, Ms. Richardson called Ms. Clore and offered her a position as a part-time teacher and in any other position she was asked to do. Ms. Clore accepted and began her employment with CMC on October 2, 2000.
Ms. Clore was required to complete a two-week orientation process. During the first week, Ms. Clore and the other trainees "shadowed" more senior employees in the positions for which they had been hired. During the second week, they received classroom training from various presenters. A lot of the training was conducted by Gerald Scroggins, the Training Officer.
On the first day of the classroom training, Monday, October 9, 2000, Mr. Scroggins described the nature of the training for the week. He also warned that based on his experience, juvenile offenders often behaved worse than adult offenders. Mr. Scroggins predicted that each member of the class would be subjected to profane language by the juveniles at the facility and exposed to unpleasant situations and foul language on the job. He explained that in order to make the training as realistic as possible, he would use foul language in describing certain correctional scenarios the trainees may face or he had experienced in the past.
Ms. Clore alleges that she was sexually harassed by Mr. Scroggins. He frequently used the words "damn," "shit" and "fuck" and used the phrase "stupid bitches" several times. (Clore Dep. at 111; Rhoda Aft. ¶ 7.) She found Mr. Scroggins' use of foul language and other comments to be inappropriate, condescending, offensive, unprofessional and sexually harassing.
On Tuesday, October 10, Ms. Clore reported to Ms. Richardson that she believed Mr. Scroggins' comments in the training class were inappropriate. She described the types of comments Mr. Scroggins was making, for example, that he was "[dragging the naked, dirty, black bitch out of the shower with her titties flopping," and "things like that" which Ms. Clore felt were unnecessary comments. (Clore Dep. at 95.) Ms. Clore also reported that Mr. Scroggins made remarks about not wanting to be around his wife and thankfully they took separate vacations. (Id. at 96.) She also told Ms. Richardson that he had bragged about attending an upcoming seminar in Indianapolis, said his wife would not be there, and that he had a couple of dates lined up. (Id. Exs. 13, 15.) Ms. Clore took these comments as an invitation to join him at the hotel and as an offensive, sexual advance. She also reported that Mr. Scroggins "several times repeatedly throughout" the training class used the phrase "stupid bitches," often used the word "fuck" and made comments about female body parts flopping and jiggling and described how the inmates looked while naked and squatted down while their orifices were checked. (Id. at 111-12 Ex. 13.) At the end of the meeting, Ms. Clore specifically asked Ms. Richardson not to share "these details" with anyone because she just wanted to get through the remainder of the training class. (Id., Ex. 13.)
The next day, Wednesday, October 11, Ms. Clore again complained to Ms. Richardson about Mr. Scroggins. She reported that she had made a comment during class and he told her to "just shut up, sit there and look pretty." (Clore Dep. at 90.) Ms. Richardson asked her to write a report about her complaint and bring it back the next day, and Ms. Clore responded, "okay." (Id. at 91.)
Also on Wednesday, October 11, Mr. Graves told Ms. Richardson to terminate the employment of Ms. Clore and Maria Rhoda, another employee in the training class. Mr. Graves made the decision to terminate Ms. Clore based on the reports of Mr. Scroggins of her disruptive behavior in class, namely that she talked too much, interrupted the lectures, blurted out comments and disrupted the discussion for the other trainees. Mr. Graves decided to terminate Ms. Rhoda based on Mr. Scroggins' report that she acted as if she wanted to go home. When Mr. Graves made this decision, he was unaware that Ms. Clore had made any complaints about Mr. Scroggins. Likewise, Mr. Scroggins was unaware that she had made any complaints about him when he reported Ms. Clore's behavior to Mr. Graves. Ms. Richardson had told no one at CMC about Ms. Clore's complaints regarding Mr. Scroggins until after Mr. Graves had told her to terminate Ms. Clore's employment.
On Thursday, October 12, Ms. Richardson advised Ms. Clore and Ms. Rhoda that they were discharged from employment with CMC. When Ms. Clore asked why, Ms. Richardson told her that she had been talking too much during the training class.
III. Discussion
Title VII makes it unlawful for an employer (as defined under the statute) to discriminate against any individual "because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(1); Venturelli v. ARC Cmty. Servs., Inc., No. 02-2294, — F.3d 2003 WL 21659465, at *3 (7th Cir. Jul. 16, 2003). The Plaintiff contends that she was subjected to discrimination in the form of sexual harassment, retaliated against, and discriminated against because of her pregnancy. The Defendant denies her claims.
A. Hostile Environment Sexual Harassment
Ms. Clore alleges that CMC subjected her to sexual harassment by Mr. Scroggins. A "plaintiff may establish a violation of Title VII by proving that discrimination based upon sex has created a hostile or abusive work environment." Meritor Savs. Bank FSB v. Vinson, 477 U.S. 57, 66 (1986). Title VII is not a general civility code, Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quotation omitted), and is not "designed to purge the workplace of vulgarity," Baskerville v. Culligan Int'l Corp., 50 F.3d 428, 430 (7th Cir. 1995).
To be actionable under Title VII, a hostile work environment claim must be based on conduct "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Meritor, 477 U.S. at 67 (quotation omitted); see also Hosteller v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000). Whether conduct satisfies this standard depends on several factors including: "`the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Hosteller, 218 F.3d at 806-07 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)); see also Faragher, 524 U.S. at 787-88. The harassment must be both objectively and subjectively offensive. A work environment is not considered "hostile" under Title VII "unless a reasonable person would find it offensive and the plaintiff actually perceived it as such." Hosteller, 218 F.3d at 807; see also Faragher, 524 U.S. at 787.
The Seventh Circuit repeatedly has said:
Drawing the line [between "the merely vulgar and mildly offensive" and "the deeply offensive and sexually harassing"] is not always easy. On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.Worth v. Tyer, 276 F.3d 249, 267 (7th Cir. 2001) (quoting Baskerville, 50 F.3d at 430-31); see also Hosteller, 218 F.3d at 807. "Not every unpleasant workplace is a hostile environment. The occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers would be neither pervasive nor offensive enough to be actionable. The workplace that is actionable is the one that is hellish." Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003) (quotation omitted).
CMC contends that Ms. Clore did not subjectively perceive any of Mr. Scroggins' conduct as offensive until he told her to "just shut up, sit there, and look pretty" on Wednesday, October 11. At one point during her deposition Ms. Clore testified that she first felt as though she was being sexually harassed on the Wednesday of the second week of training when Mr. Scroggins made the above quoted comment. (Clore Dep. at 88-89.) However, the record at the least raises a genuine issue as to whether Ms. Clore subjectively perceived other, earlier conduct by Mr. Scroggins as offensive. For example, she testified about other comments by Mr. Scroggins which were "offensive to me personally" and "offensive of his attitude towards women in general" (id. at 100) and said that she found his demeanor, degrading comments about women and derogatory remarks "offensive in general." (Id. at 94.) Ms. Clore also testified that she complained to Ms. Richardson on Tuesday about Mr. Scroggins' inappropriate behavior, although she did not "feel like it was specifically pointed at [her] at that time." (Id. at 88.) Furthermore, it is undisputed that Ms. Clore complained to the HR Director about Mr. Scroggins comments on two occasions, one of which was before he made the "just shut up, sit there, and look pretty comment," which supports a finding that she found his other conduct offensive as well. Therefore, the court finds that there is a genuine issue of material fact as to whether Ms. Clore subjectively perceived Mr. Scroggins' comments as offensive.
The court concludes, however, that no reasonable jury could find from the evidence that Mr. Scroggins' comments constituted an actionable hostile environment. Ms. Clore was subjected to offensive comments during one-half of each of three days of the in-class training. Some of the comments were sexual in nature and foul. Even though Mr. Scroggins comments may have been frequent, they were not so severe as to be considered abusive.
The court must consider the "social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); see also Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1063 (7th Cir. 2003). The Oncale Court said that "[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances" including expectations. Id. at 82. The evidence establishes that Mr. Scroggins explained at the beginning of class that he would use cursing and foul language in describing correctional situations in order to make the classroom training as realistic as possible. (Scroggins Aff. ¶¶ 8-10.) The Plaintiff argues that this explanation was a fabrication and only Mr. Scroggins recalls giving it, but she offers no evidence, not even her own testimony, to directly refute his testimony. Thus, given the evidence, Ms. Clore would have had the expectation that Mr. Scroggins would use cursing and foul language when describing correctional situations. In addition, the evidence establishes that Mr. Scroggins cursed and used foul language in order to making the training as realistic as possible, and at least some of this type of language was used when describing correctional situations.
It is also important to note what the evidence does not establish. Ms. Clore offers no evidence that Mr. Scroggins physically touched her, threatened her, or subjected her to intimidating or humiliating words or acts or obscene gestures or pictures. She understood his mention of staying in a hotel without his wife as a sexual invitation, but even if it could reasonably be viewed as such an invitation, it was neither a direct nor lewd solicitation. Lastly, Ms. Clore has not offered evidence from which one could reasonably infer that Mr. Scroggins' comments interfered with her work performance.
Therefore, the court finds that no reasonable trier of fact could find from the evidence that Mr. Scroggins' conduct was sufficiently severe or pervasive. Cf. Hosteller, 218 F.3d at 807-08 (reversing summary judgment for employer where issues of fact existed regarding whether supervisor's uninvited kiss, attempt to remove plaintiffs bra, and lewd proposition for sex created objectively hostile work environment); Baskerville, 50 F.3d at 430-31 (alleged harasser's conduct did not rise to the level of sexual harassment even though he commented, among other things, that his wife was not in town, he was lonely and had only his pillow for company, while making an obscene gesture). Ms. Clore experienced vulgar and crude language, tinged with sexual innuendo. While the work environment created by Mr. Scroggins may have been unpleasant, it could not be described as "hellish." Accordingly, the court finds that summary judgment should be GRANTED CMC on the sexual harassment claim.
B. Retaliation
Ms. Clore alleges that CMC terminated her employment in retaliation for her complaints to Ms. Richardson, the HR Director, about Mr. Scroggins' offensive comments during the training class. A plaintiff may prove a claim of retaliation under Title VII under either the direct method of proof or the indirect method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 896 (7th Cir. 2003); Haywood v. Lucent Tech., Inc., 323 F.3d 524, 531 (7th Cir. 2003). Under the direct method, she must offer "direct evidence of a statutorily protected activity, an adverse employment action, and a causal connection between the two." Haywood, 323 F.3d at 531 (citing Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002)). Under this method "a plaintiff must provide direct or circumstantial evidence that the decisionmaker has acted for a prohibited reason." Rogers, 320 F.3d at 754; see also Maarouf v. Walker Mfg. Co., 210 F.3d 750, 754-55 (7th Cir. 2000). This requires evidence that the decisionmaker was aware of the plaintiffs complaints of discrimination or harassment. Johnson, 325 F.3d at 900 (granting summary judgment to employer on retaliation claim where "there was no indication that the corporate actors who made this decision were aware of [the plaintiffs] complaints of race discrimination"). Ms. Clore offers circumstantial evidence, of the alleged retaliation, namely, the timing of her discharge shortly after she complained about Mr. Scroggins as well as CMC's alleged disregard of the normal processing of personnel and disciplinary action.
The Plaintiffs retaliation claim cannot survive summary judgment under the direct method of proof. Although she can establish protected activity and adverse action, she cannot establish a causal connection between the two. This is because she has a want of evidence that the decisionmakers with regard to her termination, Mr. Graves and Mr. Scroggins, acted for an unlawful reason. The fact that Mr. Graves is the Director of Operations and that Ms. Clore expressed complaints to the HR Director are not enough without more to raise a triable issue as to Mr. Graves' knowledge, or for that matter Mr. Scroggins'. See Maarouf, 210 F.3d at 755-56 (granting summary judgment to the defendant where the evidence established that the plaintiff complained of discrimination to the human resources coordinator who reported the complaint to the human resources director but the plaintiff did not show that the decisionmaker was aware of the complaints when he decided to terminate the plaintiffs employment).
Ms. Clore argues that an inference could be drawn "from the interaction of the Plaintiff with Scroggins that [he] was aware that her trip towards Human Resources involved a complaint against him." (PL's Surreply Opp'n Def.'s Mot. Summ. J. at 8.) Such an inference would not be a reasonable one based on the record before the court. The Plaintiff points to no evidence to suggest that Mr. Scroggins was aware that she made a trip toward human resources. Even if she did, she offers no evidence from which a reasonable trier of fact could find that Mr. Scroggins would have been aware or suspected that her trip was to complain about him. Had Ms. Clore told Mr. Scroggins that she found his comments and use of foul language offensive, a factfinder might infer that he would have suspected that she was going to human resources to complain about him. There is evidence that Ms. Clore talked a lot in class, but there is no evidence to suggest that any of her talking involved objections to or complaints about Mr. Scroggins' language and comments. And, there is no other evidence from which one could find that Ms. Clore complained directly to Mr. Scroggins about any of his language or comments. Furthermore, there are many reasons why a new employee may visit human resources, for example, to complete paperwork or ask a benefits question, none of which would involve lodging a sexual harassment complaint.
The Plaintiff next argues that the immediacy of her termination and CMC's disregard of normal processing of personnel or disciplinary action raise the inference that the decision to terminate her was a preemptive strike. The "mere temporal proximity between the [complaint] of discrimination and the action alleged to have been taken in retaliation for that filing will rarely be sufficient in and of itself to create a triable issue." Stone, 281 F.3d at 644. Without a shred of evidence that either Mr. Scroggins or Mr. Graves knew of Ms. Clore's complaints to Ms. Richardson, no reasonable trier of fact could infer based on timing alone that the Plaintiff was discharged in retaliation for making those complaints.
And, although the failure to follow normal disciplinary procedures may be considered in deciding whether an action was taken for an unlawful motive, Futrell v. J.I. Case, 38 F.3d 342, 348-49 (7th Cir. 1994) (identifying the failure to follow formal disciplinary procedures as one piece of evidence among others creating a jury question regarding pretext); no reasonable trier of fact could find that such a failure raises a reasonable inference of retaliation in this case. Again, Ms. Clore has no evidence to raise a genuine issue as to whether either Mr. Graves or Mr. Scroggins was aware of her complaints to Ms. Richardson at the time the decision to terminate her employment was made. See Rogers v. City of Chicago, 320 F.3d 748, 754 (7th Cir. 2003) (stating that "under the direct method a plaintiff must provide direct or circumstantial evidence that the decisionmaker has acted for a prohibited reason"). In addition, CMC took the very same action with respect to Ms. Rhoda who did not complain about Mr. Scroggins or sexual harassment. Thus, the court finds that Ms. Clore has insufficient evidence under the direct method to raise a triable issue as to whether Mr. Graves or Mr. Scroggins terminated her employment for complaining about sexual harassment.
Under the indirect method, a plaintiff must show a prima facie case of retaliation. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 897 (7th Cir. 2003). This requires her to show "that (1) after lodging a complaint about discrimination, (2) only [s]he, and not any otherwise similarly situated employee who did not complain, was (3) subjected to an adverse employment action even though (4) [s]he was performing h[er] job in a satisfactory manner." Id. See also Rogers, 320 F.3d at 754. If the plaintiff demonstrates a prima facie case, then the defendant must offer a legitimate, nondiscriminatory reason for the challenged action. Johnson, 325 F.3d at 897. If the defendant offers such a reason and it is unrebutted by the plaintiff, then the defendant "is entitled to summary judgment." Rogers, 320 F.3d at 755 (quoting Stone, 281 F.3d at 644).
Summary judgment in favor of the Defendant is appropriate if the Plaintiff proceeds under the indirect method of proof. First, the court finds that Ms. Clore cannot establish her prima facie case because she cannot show that only she and no similarly situated employee who did not complain about Mr. Scroggins or sexual harassment was terminated. The undisputed evidence is that Maria Rhoda, who like the Plaintiff was in the training class but unlike the Plaintiff did not complain about Mr. Scroggins' comments, was discharged at the same time Ms. Clore was discharged. The Plaintiff has not disputed that Ms. Rhoda properly is considered an otherwise similarly situated employee to her.
Even assuming that Ms. Clore could establish a prima facie case, CMC nonetheless is entitled to summary judgment. The Plaintiff has not rebutted the Defendant's evidence that her employment was terminated because of her disruptive behavior, that is, talking too much in the training class. She offers no evidence to raise a reasonable inference that Mr. Scroggins or Mr. Graves did not honestly believe that her behavior was disruptive or that she was talking too much. For all these reasons, summary judgment will be GRANTED CMC on Ms. Clore's Title VII retaliation claim.
Ms. Clore also brings a retaliation claim under the Indiana Civil Rights Law. Although the Defendant does not expressly mention this claim in seeking summary judgment, CMC does move for summary judgment on each of the claims in the Amended Complaint. It appears that the parties have simply lumped the state retaliatory discharge claim with the Title VII retaliation claim. The Plaintiffs inability to prove that the decisionmakers acted for a prohibited reason with respect to the Title VII claim would seem fatal to her state law retaliatory discharge claim.
In addition, as Judge Hamilton of this court observed, "It is not at all clear that the Indiana retaliation statute applies to complaints that remain internal, to company supervisors as opposed to complaints to the Civil Rights Commission." Combs v. Ind. Gaming Co., No. NA99-0154-C-H/S, 2000 WL 1716452, at *3 (S.D. Ind. Aug. 30, 2000) (citing Ind. Code §§ 22-9-1-3(1), 22-9-1-6(h)); see also Ind. Code § 22-9-1-6(h) ("The commission shall prevent any person from discharging, expelling, or otherwise discriminating against any other person because he filed a complaint, testified in any hearing before this commission, or in any way assisted the commission in any matter under its investigation."). Ms. Clore's state retaliatory discharge claim is based only on internal complaints. Therefore, the court finds that summary judgment should be GRANTED the Defendant on the state retaliatory discharge claim as well.
C. Pregnancy Discrimination
The PDA, which amended Title VII, defines "because of sex" to mean "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k); Venturelli v. ARC Cmty. Servs., Inc., No. 02-2294, — F.3d —, 2003 WL 21659465, at *3 (7th Cir. Jul. 16, 2003); see also Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2002). A plaintiff may prove her PDA case under either the direct method or indirect method of proof. Venturelli, 2003 WL 21659465, at *3.
Under the direct method a plaintiff must present evidence that supports a reasonable inference of unlawful discrimination. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736-37 (7th Cir. 1994). There are two types of evidence under the direct method. The first is direct evidence, which "if believed by the trier of fact, would prove the fact in question without reliance on inference or presumption." Venturelli, 2003 WL 21659465, at *3 (quotation omitted). Ms. Clore has no such evidence. The second type of evidence is circumstantial evidence, which "allows a jury to infer intentional discrimination by the decisionmaker." Id. There are three categories of circumstantial evidence:
The first category consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn. The second type requires a showing that the employer systematically treated other, similarly situated, non-pregnant employees better. The third type is evidence that the plaintiff was qualified for the position in question but passed over in favor of a person not having the forbidden characteristic and that the employer's stated reason for its decision is unworthy of belief, a mere pretext for discrimination.Venturelli, 2003 WL 21659465 at *6 (quotations and citations omitted). The third category "is substantially the same as the evidence required" under the indirect method of proof. Id. (quotation omitted). Whether circumstantial evidence is sufficient to withstand a motion for summary judgment depends upon "its strength in relation to whatever other evidence is in the case." Troupe, 20 F.3d at 736.
It is unclear whether the Plaintiff is offering circumstantial evidence under the direct method of proof. Though it is clear that she offers no evidence under the second category of circumstantial evidence, the court will assume that she offers circumstantial evidence under the first and third categories. As for the first, the court understands her to rely on the timing of the recision of her offer of employment as Case Manager which occurred shortly after Ms. Richardson, Ms. Marcum, Ms. Graves and Ms. Reid learned of her pregnancy. Because Ms. Clore proceeds under the indirect method of proof, the court also assumes that she offers evidence which fits under the third category of circumstantial evidence, as the two are "substantially the same." Venturelli 2003 WL 216594465, at *6. This category of evidence is discussed in the section of this entry addressing the indirect method of proof.
When proceeding under the indirect method of proof a plaintiff must first establish a prima facie case of discrimination. Id. at *7. To do this, she must show that: (1) she was pregnant and her employer knew that she was pregnant; (2) she applied and was qualified for the position she sought; (3) she was rejected; and (4) the position remained open and the employer continued to seek to fill the position. Clay, 253 F.3d at 1005-07 n. 7. If a plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, nondiscriminatory reason for its decision. Venturelli, 2003 WL 21659465, at *7; Clay, 253 F.3d at 1005. If the defendant carries its burden, the plaintiff must offer evidence that the defendant's proffered reason was a pretext for intentional discrimination. Venturelli, 2003 WL 21659465, at *7; Clay, 253 F.3d at 1005. The ultimate burden to prove intentional discrimination remains at all times with the plaintiff. Venturelli, 2003 WL 21659465, at *7; Clay, 253 F.3d at 1005.
Whether a plaintiff proceeds under the direct or the indirect method, she cannot establish discrimination under the PDA unless she has some evidence that the employer knew of her pregnancy at the time of the challenged decision. See Clay, 253 F.3d at 1005-07 n. 7 (identifying as the first element of a prima facie case under the indirect method that the plaintiff was pregnant and her employer knew that she was pregnant); Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2000) (stating in case in which the plaintiff proceeded only under the direct method of proof that a claim of pregnancy discrimination "cannot be based on [a woman's] being pregnant if [the employer] did not know she was."). CMC contends that Ms. Clore cannot prevail on her PDA discrimination claim because Ms. Brown, the individual who made the decision not to hire her as a Case Manager (or, from the Plaintiffs perspective rescinded the offer for that position) did not know of her pregnancy at the time she made the decision.
Throughout this entry the court refers to the challenged decision as the decision not to hire Ms. Clore as Case Manager. The decision is described this way for ease only. The court accepts Ms. Clore's version of the facts that she was originally offered the Case Manager position only to have it rescinded later. The characterization of the challenged decision as "the decision not to hire Ms. Clore as Case Manager" rather than "the rescission of the offer of employment as Case Manager' makes no difference to the outcome of this case.
CMC offers evidence that Ms. Brown, and only she, made the decision not to hire Ms. Clore as a Case Manager. (Def.'s St. Mat. Facts, Ex. C, Brown Aff. ¶¶ 3, 7, 8 (stating that she was responsible for deciding who to hire for the treatment team positions, including Case Managers, and she decided Ms. Clore was not an acceptable candidate for Case Manager), Ex. E, Graves' Aff. ¶ 5 (stating that Ms. Brown was responsible for assembling the treatment team and made the decision that Ms. Clore should not be hired as Case Manager); Ex. D, Richardson Dep., Ex. 1 at 1 (stating Ms. Brown decided not to hire Ms. Clore after interviewing other candidates for the position)). The Defendant also offers evidence that Ms. Brown was unaware of the Plaintiff's pregnancy when she decided not to hire her for a Case Manager position, and did not learn of her pregnancy until several months after Ms. Clore had rejected the Youth Specialist position. (Id., Ex. C, Brown Aff. ¶ 9; see also id., Ex. D, Richardson Dep. at 46-8 (stating that when Ms. Clore was being considered for the Case Manager position she discussed Ms. Clore's pregnancy only with Ms. Graves, Ms. Reid, and Ms. Marcum); Def.'s Reply App., Ex. C, Graves Aff. ¶ 9 (stating he never informed Ms. Brown that Ms. Clore was pregnant).)
The Plaintiff attempts to raise a triable issue as to the Defendant's knowledge of her pregnancy in several ways, one of which succeeds. She offers evidence that she told her sister-in-law, Ms. Richardson, the HR Director, about her pregnancy, and Ms. Richardson relayed this information to three members of CMC's management staff, Helen Graves, wife of the Director Steven Graves, Krishna Marcum, Director of Operations, and Celia Reid, (Richardson Dep. at 46-47), all of whom attended a brainstorming session with Ms. Brown, Mr. Graves and Tony Tucker, to decide to whom offers of employment as Case Managers would be made. (Id. at 32-33.) The Defendant takes great pains to try to establish that no decisions were made during this meeting. But even assuming that no final decision was made at that brainstorming session, the Plaintiff has presented sufficient evidence to refute the Defendant's evidence that the employer had no knowledge of her pregnancy at the time the decision not to hire her as Case Manager was made. Even if Ms. Brown had no such knowledge, it is undisputed that several other individuals who did know of Ms. Clore's pregnancy had input in the hiring decision during this brainstorming session.
1. Circumstantial Evidence Under Direct Method
Although Ms. Clore has succeeded in challenging CMC's evidence regarding knowledge of her pregnancy, a trial of her pregnancy discrimination claim is not assured. As stated, as to the first category of circumstantial evidence, the court understands Ms. Clore to rely on the timing of the recision of her offer of employment as Case Manager. She has no evidence of ambiguous statements, behavior toward or comments directed at other pregnant employees, or other bits and pieces of evidence from which an inference of discriminatory intent might be drawn. Thus, the court considers whether the timing of the decision not to hire Ms. Clore as Case Manager allows a reasonable inference of pregnancy discrimination. It does not.
The evidence reveals that of those who attended the brainstorming session, only Ms. Richardson, Ms. Graves, Ms. Marcum and Ms. Reid knew at the time about Ms. Clore's pregnancy. But their knowledge of her pregnancy is insufficient to support a reasonable inference that Ms. Clore was not given the Case Manager position because of her pregnancy. First, as for Ms. Richardson, the Plaintiff offers evidence of her concerns about hiring a pregnant woman. Although summary judgment may be inappropriate "where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action," Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994), there is no evidence from which a reasonable trier of fact could find that Ms. Richardson provided any factual information or other input into the decision not to hire Ms. Clore as Case Manager. Though there is evidence that Ms. Richardson attended the brainstorming session, the uncontradicted evidence is that she never told anyone her opinion about whether Ms. Clore should be hired as Case Manager. (See Richardson Dep. at 53.) Thus, Ms. Richardson's discriminatory animus could not have affected the decision not to give Ms. Clore the Case Manager position.
The Plaintiff offers evidence that when she learned she no longer had the Case Manager position, she told Ms. Richardson that she was going to take legal action against CMC, and Ms. Richardson cried and begged her not to because she feared she would lose her job. (Id. at 53-54.) This evidence does not create a triable issue. Ms. Richardson expressly testified that she feared losing her job because she was a new employee, Ms. Clore was related to her, and she felt she would be given "a rough time if someone in my family started to sue" CMC. (Id. at 54.) Thus, the evidence does not support a reasonable inference that Ms. Richardson's reaction to the Plaintiff's threat of legal action was because of any guilt over negatively affecting Ms. Clore's chances of obtaining the Case Manager position.
As for Ms. Graves, Ms. Marcum and Ms. Reid, the Plaintiff has no evidence that any of them harbored any discriminatory animus against her or against pregnant women generally. Thus, their knowledge of her pregnancy does not support a reasonable inference that they adversely affected the decision not to hire Ms. Clore as Case Manager. In addition, there is no evidence which would raise a reasonable inference that any of them told Ms. Brown or anyone else about Ms. Clore's pregnancy before the decision was made not to hire her as Case Manager.
The Plaintiff argues that Mr. Graves gave conflicting statements about when he learned of Ms. Clore's pregnancy, which he did in his letter to the EEOC and his affidavit filed with CMC's summary judgment papers. (Compare PL's Ex. 3 at 2 (stating that Ms. Richardson informed him that Ms. Clore was pregnant before offering her the Youth Specialist position) with Def.'s St. Mat. Facts, Ex. E, Graves Aff. ¶ 7 (stating that he did not become aware of Ms. Clore's pregnancy until after she rejected the offer for the Youth Specialist position). However, the conflict is inconsequential because it remains undisputed that Mr. Graves did not learn of Ms. Clore's pregnancy until after Ms. Brown made the decision not to hire Ms. Clore as Case Manager and told him of this decision. (See Def.'s Reply App., Ex. C, Graves Aff. ¶¶ 3 (stating he learned of Ms. Clore's pregnancy at the same time he informed Ms. Richardson of the decision to offer her the Youth Specialist position), 6 (stating when Ms. Brown told him she had decided not to hire Ms. Clore as a Case Manager but as Youth Specialist, he was unaware of her pregnancy) 8 (stating he learned about Ms. Clore's pregnancy immediately before CMC offered her the Youth Specialist position).) Moreover, there is no evidence that Mr. Graves harbored any discriminatory animus toward pregnant women in general or Ms. Clore in particular because of her pregnancy. Also, there is absolutely no evidence that Mr. Graves conveyed any knowledge of Ms. Clore's pregnancy to Ms. Brown before she made her decision not to hire Ms. Clore as Case Manager.
The Plaintiff's assertions that she believed Mr. Graves made the decision not to hire her as a Case Manager and she had the impression that he decided not to hire her because of her pregnancy do not create a triable issue. (Clore Dep. at 43.) Ms. Clore stated that she got that impression because the decision was made "around the time period" she found out she was pregnant and "maybe Krishna [Ms. Marcum] had told them [that she was pregnant]." (Id. at 44.) Ms. Clore admitted, however, that all she based this impression on was the timing of the decision and conversations with Ms. Richardson. (Id. at 43, 45.) The only thing said in those conversations that Ms. Clore could identify as supporting her impression was Ms. Richardson's objection to Mr. Graves suddenly stating she could not have the position. (Id. at 45.) This is not enough to create a triable issue as to whether Mr. Graves made the decision not to hire Ms. Clore as Case Manager, or whether he harbored discriminatory animus.
The uncontradicted evidence is that Ms. Brown did not know of Ms. Clore's pregnancy when she decided not to give her the Case Manager position. The Plaintiff argues that it "seem[s] unlikely" that Ms. Brown did not know of her pregnancy until several months after she had rejected the offer for the Youth Specialist position because Ms. Brown had consulted with others who knew of her pregnancy. A similar argument was made and rejected in Peppers v. Climco Coils Co., No. 01 C 50163, 2002 WL 31163753, *1 (N.D. III. Sept. 30, 2002) (rejecting plaintiffs suggestion that the defendant's president and decisionmaker must have known about her pregnancy because her immediate supervisor and the president's immediate subordinate knew about it and were in the "chain of authority" where the undisputed evidence was that both the supervisor and subordinate never told the president about the pregnancy). This decision is persuasive.
The Plaintiff offers no evidence to rebut Ms. Brown's testimony that she did not learn of Ms. Clore's pregnancy until several months after she had been offered the Youth Specialist position. She has, for example, no evidence from which a reasonable trier of fact could find that Ms. Marcum, Mr. Graves or anyone else reported the Plaintiff's pregnancy to Ms. Brown. It is not enough for Ms. Clore to speculate that Ms. Brown would have known of her pregnancy where she offers no evidence to support a factual finding that Ms. Brown had such knowledge. See, e.g., O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 987 (7th Cir. 2001) (holding district court properly struck from affidavits speculation regarding company president's thoughts).
The court finds that Ms. Clore has insufficient circumstantial evidence to allow a reasonable inference of intentional discrimination. She offers evidence that certain individuals who attended the brainstorming session were aware of her pregnancy, but the evidence establishes that the only one with a discriminatory animus gave no opinion about whether Ms. Clore should be hired as Case Manager. And, significantly, there is no evidence that Ms. Brown, who made the decision not to give Ms. Clore the Case Manager position, harbored any discriminatory animus against her or pregnant women. Therefore, the court concludes that Ms. Clore has insufficient evidence to create a jury question with her circumstantial evidence of pregnancy discrimination.
2. Indirect Method
Under the indirect method, even if Ms. Clore establishes a prima facie case, CMC has offered legitimate, nondiscriminatory reasons for its decision not to hire Ms. Clore as a Case Manager. The Defendant offers Ms. Brown's affidavit in which she states that she was concerned that Ms. Clore had no clinical background; she perceived an inability to mesh Ms. Clore's personality with those of the other candidates she had decided to hire; and when she contacted some of the Plaintiff's references, they were unable to assess the Plaintiffs work abilities and she was unable to contact some other of the Plaintiffs references. (Brown Aff. ¶¶ 7-8.)
Ms. Clore attempts to show that CMC's stated reasons are pretexts for pregnancy discrimination by offering evidence of a personal reference check from Jerry Van Hoy. (PL's Ex. 7.) This evidence does not refute Ms. Brown's testimony, though, because the Plaintiffs Exhibit 7 shows that Mr. Van Hoy was a professor, his association with Ms. Clore was in a professor-student relationship, and he had no interaction with Ms. Clore in an employment setting. Thus, the document does not contradict Ms. Brown's statement that some of Ms. Clore's references were unable to assess her work abilities. But even if the Plaintiff's evidence were sufficient to refute CMC's evidence as to this reason, the Defendant offers two other legitimate, non-discriminatory reasons for its decision to end her employment. Ms. Clore must offer evidence to rebut each and every legitimate, non-discriminatory reason offered by CMC to survive summary judgment. See Clay, 253 F.3d at 1007.
Contrary to the Plaintiffs suggestion, Ms. Brown does not simply state that Ms. Clore was not qualified (a jury could find she was qualified for the position of Case Manager). Rather, Ms. Brown indicated that her decision not to hire the Plaintiff turned on the concerns mentioned above, including that Ms. Clore had no clinical background, which, it is undisputed, she did not. As for the third reason, the Plaintiff offers no evidence to raise a genuine issue as to whether Ms. Brown honestly perceived an inability to mesh Ms. Clore's personality with those of other candidates she decided to hire. Thus, even if the Plaintiff's evidence was sufficient to create a triable issue as to CMC's explanation that some of Ms. Clore's references were unable to assess her work abilities, the other two legitimate, nondiscriminatory reasons CMC offers remain unrebutted.
Therefore, the court finds that if the Plaintiff proceeds under the indirect method of proof, her inability to rebut two of the legitimate, nondiscriminatory reasons offered by CMC for its decision not to give her the Case Manager position results in summary judgment for CMC. Summary judgment accordingly will be GRANTED the Defendant on Ms. Clore's pregnancy discrimination claim.
This same inability also defeats her claim if she proceeds under the third category of circumstantial evidence under the direct method of proof.
IV. Conclusion
The Defendant's motion for summary judgment will be GRANTED for the reasons stated above, and judgment will be entered accordingly.
ALL OF WHICH IS ENTERED.