Opinion
No. 96 C 8448
March 23, 1999
MEMORANDUM OPINION AND ORDER
Plaintiff Ernest Marquez ("Marquez") brought this action against his former employer, defendant Illinois Department of Mental Health and Developmental Disabilities ("Department"), alleging that defendant discriminated against him in violation of Title VII of The Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et. seq. The defendant now brings a motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the court denies the defendant's motion for summary judgment.
Background
Marquez, a Hispanic male, began working for the Department on February 1, 1966. (Def.'s 12(M) Stmt. ¶ 1.) Marquez holds a Doctorate in Behavioral Science. (Pl.'s 12(N) Stmt. ¶ 222.) In October, 1987, the Department appointed Marquez to a four year term as the assistant health superintendent. (Def.'s 12(M) Stmt. Stmt. ¶ 7.) In October, 1991, the Department appointed Marquez to a four year term as the deputy facility director and program director for the Forensics Program at the Department's Elgin Mental Health Center. (Def.'s 12(M) Stmt. ¶¶ 5-6.) Eighteen days before the expiration of Marquez's appointment, on September 22, 1995, Marquez received a letter from Ann Patla ("Patla"), then the director of the Department, informing him that his term appointment would not be renewed. (Def.'s 12(M) Stmt. ¶ 10; Def.'s 12(M) Stmt. ¶ 4.) On September 27, 1995, Angelo Campagna ("Campagna"), then the facility director at Elgin Mental Health Care Center, confirmed for Marquez that the Department decided not renew his term appointment. (Def.'s 12(M) Stmt. ¶ 8.) Capagna told Marquez that the Department terminated him because Dr. Leigh Steiner, the Department's assistant director, and other employees at Dr. Steiner's level, evaluated Marquez as incompetent. (Def.'s 12(M) Stmt. ¶¶ 8-9.) That same day, Marquez initiated this discrimination action. (Def.'s 12(M) Stmt. ¶ 3.)
Marquez reported directly to Campagna, who in turn reported to Dr. Steiner. (Def.'s 12(M) Stmt. ¶ 12.) In Marquez's most recent evaluation prior to termination, Campagna evaluated Marquez's job performance as "exceeds expectations". (Def.'s 12(M) Stmt. ¶ 10.) Additionally, Marquez had recently received a pay increase because of his job performance. (Pl.'s 12(N) Stmt. ¶¶ 219-220.) Based on Marquez's performance, Campagna recommended renewal of Marquez's appointment. (Pl.'s 12(N) Stmt. ¶ 243.) Up to that point, Campagna never received any documentation from upper level management indicating that Marquez's performed his job poorly. (Pl.'s 12(N) Stmt. ¶ 238.) In determining whether to renew Marquez's appointment, Patla relied heavily on the her staff member's recommendations. (Def.'s 12(M) Stmt. ¶¶ 161-162, 168.) Specifically, these staff members recommended non-renewal of Marquez's appointment because (1) he showed ineffective or mediocre leadership skills, (2) he could not reduce the patient population from 325-350 to the desired 309 over a 4 year period, (3) he allowed for numerous security problems and lapses at the Elgin facility, and (4) he showed poor interpersonal skills and management techniques with co-workers. (Def.'s 12(M) Stmt. ¶¶ 91-97.)
The Department's evaluation scale consisted of, from the lowest rating to the highest rating, "not satisfactory", "meets expectations", "exceeds expectations" and "superior". (Def.'s 12(M) Stmt. ¶ 11.)
In February 1996, the Department hired Tom Monahan ("Monahan"), a white male, to permanently replace Marquez. (Def.'s 12(M) Stmt. ¶ 16.) Monahan has a masters degree in management from DePaul University. (Def.'s 12(M) Stmt. ¶ 210.) Immediately prior to accepting his position with the Department, Monahan served as (in reverse chronological order) the acting director of the Cook County Department of Corrections, the assistant executive director in charge of administration with the Cook County Department of Corrections, a sales manager in the food services industry (for four years) and the administrative assistant to the Cook County Sheriff. (Def.'s 12(M) Stmt. ¶ 211, Pl.'s 12(N) Stmt. ¶¶ 284-285.)
In October 1996, the Department offered Marquez a new position as the Director of Continuity Care at the Elgin facility. (Def.'s 12(M) Stmt. ¶ 16.) Marquez accepted the position, although he considered this new position a demotion from his previous job. (Pl.'s 12(N) Stmt. ¶¶ 215, 227.) Marquez claims that his options were "no job, or this job", and had he not accepted the demotion, the Department would not employ him at all. (Pl.'s 12(M) Stmt. ¶¶ 228, 268.) Furthermore, Marquez's new position had a salary of approximately $16,000-$17,000 less per a year than the salary his previous job commanded. (Def.'s 12(M) Stmt. ¶ 24.)
Summary Judgment
The Department moves the court to enter summary judgment on its behalf under Rule 56 of the Federal Rules of Civil Procedure. The court will render summary judgment only if the factual record shows "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." Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 173 (7th Cir. 1996) (quoting Fed.R.Civ.P. 56(c)). The court will not render summary judgment if "a reasonable jury could return a verdict for the nonmoving party." Sullivan v. Cox, 78 F.3d 322, 325 (7th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, the court views the facts in the light most favorable to the nonmoving party. Bratton, 77 F.3d at 171; Sullivan, 78 F.3d at 325.
On a motion for summary judgment, the moving party "bears the initial burden of showing that no genuine issue of material fact exists." Hudson Ins. Co. v. City of Chicago Heights, 48 F.3d 234, 237 (7th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Then the burden shifts to the nonmoving party, which "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995), cert. denied, 115 S. Ct. 2249 (1995).
These burdens are reflected in Rule 12 of the Local General Rules for the Northern District of Illinois. Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994). Under Rule 12(M) Stmt.(3), the moving party must submit a statement of material facts in the form of short numbered paragraphs supported by specific references to the factual record. Under Rule 12(N) Stmt.(3), the nonmoving party must submit a response to each such paragraph, including (in the case of disagreement) specific references to the factual record. If the nonmoving party fails to disagree with a fact in the moving party's 12(M) Stmt. statement, the court will deem that fact admitted. See Local Rule 12(N) Stmt.(3). Similarly, if the nonmoving party disagrees with a fact in the moving party's statement, but fails to support its disagreement with a specific reference to the factual record, the court may deem that fact admitted as well. Fed.R.Civ.P. 56(e);Flaherty v. Gas Research Institute, 31 F.3d 451, 453 (7th Cir. 1994).
Rule 12(N) Stmt. (3) further instructs the nonmoving party to submit a statement of any additional facts requiring denial of summary judgment, in the form of short numbered paragraphs supported by specific references to the factual record. In turn, Rule 12(M) Stmt.(3) instructs the moving party to submit a concise reply to any such additional facts, including (in the case of disagreement) specific references to the factual record.
The court reminds the parties of the necessity and importance of complying with the local rules pertaining to motions for summary judgment. The Seventh Circuit has made clear "`the exacting obligation [local] rules impose on a party contesting summary judgment'." Little v. Cox's Supermarket, 71 F.3d 637, 641 (7th Cir. 1995) (citations omitted). Local rules 12(M) and 12(N) are designed to "inform the court of the evidence and arguments in an organized way — thus facilitating its judgment of the necessity for trial." Id. Local Rules 12(M) and 12(N) clearly and specifically put the moving and non-moving parties on notice as to the required material each party must present to the court. Here, both parties' local rule 12(N) statements fail to comply with the rules. However, in spite of the parties blatant disregard for these rules, this court is not relieved of its obligation to determine whether there is a genuine issue of material fact. See Johnson v. Gudmundsson, 35 F.3d 1104, 1116 (7th Cir. 1994).
The summary judgment standard "is applied with added rigor in employment discrimination cases where intent and credibility are crucial issues." Wolf v. Buss Inc., 77 F.3d 914, 918 (7th Cir. 1995) (citing Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993)). Marquez does not need to prove racial discrimination in order to survive summary judgment, however, he needs to bring forth enough evidence to raise an inference of racial discrimination. See Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir. 1984); See also Gill v. Westinghouse Electric Corp., 594 F. Supp. 48, 50 (N.D. Ill. 1984).
Analysis
The Department moves for summary judgment on the grounds that Marquez cannot establish a prima facie case of employment discrimination under Title VII of The Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et. seq. Alternatively, the Department contends that even if Marquez can establish a prima facie case, it had a legitimate, nondiscriminatory reason for not re-appointing him. As noted, the court must deny the motion for summary judgment if Marquez can establish evidence raising an inference of racial discrimination. Korf, 726 F.2d at 1226.
Title VII prohibits an employer from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . ." 42 U.S.C. § 2000e-2(a)(1). "[I]t is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise." Id. at 801. There are two ways to prove a violation of Title VII. First, a plaintiff could present direct or circumstantial evidence of an illegal motive. Second, a plaintiff could present indirect proof. McDonnell Douglas Corp. V. Green, 411 U.S. 792 (1973). The McDonnell Douglas approach is also known as the burden-shifting method. Kormoczy v. Secretary, Dept. Of Housing Urban Dev., 53 F.3d 821, 823-24 (7th Cir. 1995). Plaintiff presents no direct or circumstantial evidence of illegal motive in support of his claim. As such, the court will apply the McDonnell Douglas approach.
Under this burden-shifting approach, the claimant "must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." McDonnell Douglas, 411 U.S. at 802. If the plaintiff establishes a prima facie case, the burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for terminating the employee.See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also McDonnell Douglas Corp., 411 U.S. at 802. If the defendant does so, the burden shifts back to the plaintiff to show that the defendant's stated reason was actually a `pretext' for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 505 (1993); Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995).
The court finds that Marquez can establish a prima facie case for employment discrimination under Title VII. Although the court recognizes that the Department set forth a legitimate nondiscriminatory reason, namely poor performance, for terminating Marquez, the court finds that Marquez presented evidence from which a reasonable jury could conclude that the Department's reason was pretextual. Therefore, the court denies defendant's motion for summary judgment.
I. Prima Facie Case
In analyzing whether the Department discriminated against Marquez because of his race, the court must first determine whether Marquez establishes a prima facie case of discrimination. To establish a prima facie case, the claimant must show that (1) he belongs to a protected class; (2) he was meeting his employer's legitimate performance expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably by his employer than similarly situated employees outside of the protected class were treated. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994).
As noted, the claimant carries the burden of establishing a prima facie case in a Title VII action. McDonnell Douglas Corp., 411 U.S. at 802. The parties agree that Marquez established that he is a member of a protected class and that he suffered an adverse employment action. (Def.'s Mot. at 8, Pl.'s Mem. at 6.) The Department contends, however, that Marquez failed to establish that he was meeting the employer's legitimate performance expectations and that similarly situated employees outside the protected class were treated more favorably by the Department.
A. The employer's legitimate performance expectations.
The Department maintains that Marquez cannot show that he met their legitimate job expectations. Specifically, the Department contends that Marquez exhibited poor leadership and management skills, failed to reduce the inmate census to desired levels, and allowed for numerous security problems at the Elgin facility. The Department bases this contention on testimony from Dr. Steiner and other high level employees who believed that Marquez performed his job poorly for the above named reasons. However, Marquez proffered direct evidence showing that he at least appeared to meet (if not exceed) the legitimate expectations of the Department.
The Department does not contest, in fact, it admits that on his last employee performance evaluation, Marquez received a rating of "exceeds expectations" from his direct supervisor, Campagna. (Def.'s 12(M) Stmt. ¶¶ 10-11.) In addition, both parties admit that Marquez recently received a pay raise that was tied to his positive performance at the Elgin facility. (Def.'s 12(M) Stmt. ¶ 21, Pl.'s 12(M) Stmt. ¶¶ 219-220). The fact Marquez received a pay raise also suggests that his performance was sufficient and that he met the Department's legitimate expectations.
Furthermore, Campagna, wrote a memo to Ms. Bukowski recommending Marquez's renewal. (Pl.'s 12(M) Stmt. ¶ 261.) Neither Dr. Steiner nor Ms. Bukowski gave negative appraisals of plaintiff's performance in writing. In fact, according to Campagna, Marquez actually enhanced security at the facility. He stated that neither Dr. Steiner nor Ms. Bukowski intimated that security problems led to Marquez's termination. (Pl.'s 12(M) Stmt. ¶¶ 239-240.) In support of his argument, Marquez also points out that a task force reviewing his facility made twenty-two recommendations as to how to improve the facility. Before his tenure ended, Marquez implemented policies addressing all but three of those recommendations. (Pl.'s 12(M) Stmt. ¶¶ 255-258.)
As further evidence that he was meeting the Department's expectations, Marquez claims that, until he received the letter from Patla informing him he would be terminated, he received no negative feedback (verbal or in writing) suggesting that his job performance was poor and that his appointment would not be renewed. Marquez claims that he did not even have much contact with the upper level managers (with the exception of Campagna), as they did not directly supervise him for any sustained period of time.
In response, the Department argues that the record contains no direct evidence showing Marquez met the legitimate job expectations for his position. The Department relies on Seventh Circuit case law noting that stray remarks may not constitute direct evidence. See Rush v. McDonalds Corp., 966 F.2d 1104, 1116 (7th Cir. 1992). However, Campagna's evaluation is not just a stray remark. An employer's discriminatory statements and documentary evidence do constitute direct evidence. See Giacoletto v. Amax Zinc Co., 954 F.2d 424, 425-426 (7th Cir. 1992) (finding that employee's positive performance evaluations constituted direct evidence). Although a copy of Marquez's employee evaluation is not in the record, both parties admit that he received an "exceeds expectations" rating. (Def.'s 12(M) Stmt. ¶¶ 10-11.) The performance evaluation falls under the Seventh Circuit's definition of direct evidence because, as in Giacoletto, it is a form of documentation. See Id. The evaluation is direct evidence that Marquez met and exceeded the expectations of the Department at that time. Without any other evidence showing that Marquez failed to meet employer expectations, the court finds that Marquez can establish that he met the Department's legitimate job expectations, satisfying the second prong of a prima facie case under Title VII.B. Similarly situated employees outside the protected class.
The Department next argues that Marquez failed to establish that defendant treated similarly situated, non-Hispanic employees more favorably. Specifically, the Department points out that Marquez's replacement, Tom Monahan, had more desirable job qualifications, and thus, was not similarly situated to Marquez. Marquez argues that Monahan had less desirable skills than he did. Marquez also points to another white, term employee he feels received favorable treatment. In light of these disputed facts, the court finds that a genuine issue of material fact exists as to whether other, non-Hispanic administrators were treated more favorably than Marquez.
In addition, Title VII case law suggests that Marquez need not show that similarly situated, non-Hispanic employees were treated more favorably. The prima facie case "is a flexible standard that `is not intended to be rigidly' applied." Collier v. The Budd Co., 66 F.3d 886, 890 (7th Cir. 1995) quoting Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 567 (11th Cir. 1992). "The exact content of the fourth prong may vary from case to case to take differing circumstances into account." Id. (deciding an employment discrimination case involving a question of whether younger employees were treated more favorably). The Seventh Circuit established that when a plaintiff alleges only one instance of discrimination, he does not need to produce evidence that similarly situated employees outside of the protected class were treated more favorably. See Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 511 (7th Cir. 1986); see also Robinson v. Sinclair Valentine, L.P., No. 90-C4005, 1991 WL 249723 at *3 (N.D. Ill. Nov. 15, 1991). The fourth prong of the test is instead, whether "the employer sought a replacement for him." Rush, 966 F.2d at 1113, citing Yarbrough 789 F.2d at 511 (footnote omitted).
In Yarbrough, the plaintiff, a black male, alleged one instance of discrimination, the discharge of his employment. Yarbrough, 789 F.2d at 512. The court found that the plaintiff's claim was not "predicated on a practice or pattern of discrimination" where proof of an isolated discriminatory act is insufficient to establish a prima facie case. Id. "It is, therefore, not necessary that [the plaintiff] present evidence that similarly situated white employees were treated more favorably than himself." Id. In this case, Marquez, like the plaintiff in Yarbrough, bases his Title VII claim on a single act of discrimination, his discharge. Therefore, since Marquez does not need to establish this element of the prima facie case of discrimination, the court finds that Marquez has alleged sufficient facts to demonstrate the requisite prima facie case.II. Legitimate Reason For Plaintiff's Termination
The Department argues that even if Marquez can establish a prima facie case, it advanced a legitimate nondiscriminatory reason for not renewing Marquez's term. Although defendant's argument on this issue is difficult to follow, it appears that the Department argues that Marquez's poor job performance justifies its decision to terminate Marquez. Marquez admits that poor performance is a legitimate reason for termination, however, he argues that in this case, the reason the Department proffered is pretextual. Marquez denies that he performed his job poorly and claims that the Department's reason is simply false and a pretext for discrimination.
The Department does not point to specific, legitimate reasons for its act under its section, "The Defendant's Had A Legitimate Reason Not To Reappoint Plaintiff Based On His Past Performance." Instead, the Department appears to rely on reasons it set forth under its argument that Marquez cannot establish a prima facie case.
Pretext is defined as "a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). "Pretext does not require that the facts presented by the defendant as the reason for its employment action not be true, only that they not be the reason." Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 634 (7th Cir. 1996). A plaintiff can show pretext "either directly by persuading the court that a discriminatory reason more likely motivated the [defendant] or indirectly by showing that the [defendant's] proffered explanation is unworthy of credence." Texas Dept. of Community Affairs, 450 U.S. at 256. Specifically, pretext can be established by showing (1) that discriminatory intent more likely than not motivated the employer; or (2) that the employer's explanation is not credible because it is not based in fact, was not the real reason for the adverse action, or was insufficient to justify any adverse action.Burdine, 450 U.S. at 256; Collier, 66 F.3d at 892.
For the purposes of summary judgment, the only question for the court is whether the plaintiff "produced evidence from which a rational fact-finder could infer that the company lied in saying that it fired [the plaintiff] because he was an unsatisfactory worker." Perdomo, 67 F.3d at 145 (quoting Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994)). "Because a fact-finder may infer intentional discrimination from an employer's untruthfulness, evidence that calls truthfulness into question precludes summary judgment." Id.
In an attempt to prove that the Department's proffered reason for his discharge was merely pretext for discrimination, Marquez raises several bases. First, as he stated in support of his prima facie case, Marquez points to his "exceeds expectations" performance evaluations, Campagna's positive feedback and remarks concerning Marquez's employment performance. (Def.'s 12(M) Stmt. ¶¶ 10-11, Pl.'s 12(M) Stmt. ¶¶ 214, 234, 243, 261.) Marquez also points out that none of the complaints and negative comments regarding his performance were documented in writing. (Pl.'s 12(M) Stmt. ¶¶ 226, 238, 302.) Furthermore, given that they never really observed Marquez perform his job on a regular basis, Marquez suggests that Dr. Steiner, Ms. Bukowski, and other high level managers were not in a position to adequately evaluate his performance. (Pl.'s 12(M) Stmt. ¶¶ 263, 309.)
Marquez also claims that the Department's reason is pretextual because Monahan, Marquez's replacement, is less qualified. Plaintiff notes that his former position requires clinical skills Monahan does not possess. Monahan has only eighty hours of clinical experience. In comparison, Marquez has years of clinical experience. (Pl.'s 12(M) Stmt. ¶¶ 272, 287.) Marquez claims that none of Monahan's prior jobs entailed clinical work, whereas plaintiff spent nearly twenty-five years overseeing clinical treatment programs. In addition, while Marquez holds a Ph.D. in education and counseling, Monahan only has a Masters degree in management.
Furthermore, Marquez claims that a review of Monahan's tenure as deputy facility director also suggests that the Department's claim he was fired for poor performance was pretextual. According to plaintiff, the Department denied his requests for 1) additional funding for a new unit supervisor; 2) physical improvements to the facility; and 3) a general increase in the overall facility budget, to help him address problems at the facility. However, when Monahan took over the position, the Department immediately provided him with these items to help him succeed at the job. (Pl.'s 12(M) Stmt. ¶ 308.)
The court finds the evidence tending to show Marquez's good job performance supports the inference that the Department's reason for terminating Marquez, poor performance, is pretextual. This case is similar to the plaintiff's situation in Perdomo. InPerdomo, the plaintiff alleged the defendant's reason for failing to promote her instead of a co-worker was pretext. Id. The defendant argued that the co-worker was better qualified for the job. Id. The plaintiff argued that (1) she had more experience in the job than the co-worker; (2) she received positive ratings for her job performance; and (3) her supervisor actively pushed for her promotion believing her to be qualified for the job. Id. at 146. Based on these evidentiary claims, the court held that the plaintiff "had presented specific evidence that calls into question the veracity of the [defendant's] reason for failing to promote her: that she was not as qualified as the other candidates." Id.
The court finds that, like Perdomo, Marquez's case is also similar to Collier. 66 F.3d at 892-93. In Collier, the plaintiff alleged that the defendant discriminated against him by hiring another worker because of his youth. Id. at 888. The plaintiff asserted that he was a better salesman based on his superior experience. Id. at 892. The court held that if believed, the plaintiff's testimony established evidence from which a jury could rationally infer that age played a role in the decision to discharge him. Id. at 893.
Although the defendant's proffered reason is different than the reason of poor performance given by the Department, Marquez makes claims similar to the plaintiff in Perdomo from which one could infer that the Department's reason is pretextual. Like the plaintiff in Perdomo, Marquez contends that he received positive job performance ratings, he had more experience than his non-Hispanic replacement, and his direct supervisor, Campagna pushed for the renewal of Marquez's term. For these reasons, the court finds that a reasonable juror could believe that the Department's reason for terminating Marquez was pretext.
The Department, relying on Menefee v. General Electric, argues that Marquez's own testimony must be grounded in facts, and not by unsupported allegations or suspicions. 548 F. Supp. 619, 620 (N.D. Ill. 1982). In Menefee, the plaintiff, a black employee, alleged the reason for his termination, falsifying time sheets, was pretext. Id. The court found that these allegations were not supported by any testimony (excluding the plaintiff's own testimony) or documentary evidence. Id. at 622. The court held that inferences must be grounded in facts and not unsupported allegations. Id.
This court finds that the circumstances of the plaintiff's case in Menefee are easily distinguishable from the present case. To begin with, the plaintiff in Menefee admitted to falsifying time sheets which clearly established his unsatisfactory job performance. Id. at 621. In this case, Marquez vehemently denies being a poor performer and he is not accused of any serious action such as falsifying time sheet. Additionally, as noted, the plaintiff in Menefee failed to provide any evidence or additional testimony to support his claims. Marquez, on the other hand, can at a minimum point to his performance evaluation, his performance raise, and Campagna's positive testimony concerning Marquez's performance.
Defendant calls into question the importance of Campagna's evaluation and his ability to judge plaintiff's performance. The court must not make value judgments about the credibility of Campagna's evaluations. "On summary judgment, a court can neither make a credibility issue nor choose between competing inferences. Rather, these are functions for a jury." Wolf, 77 F.3d at 922. The determination of liability then becomes a question of whose explanation of the company's motives the trier of fact believes. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1982).
The court finds that, when viewed in the light most favorable to Marquez, the materially conflicting evidence in this case raises a question of fact as to the believability of the Department's purported reasons for terminating Marquez. The ultimate question of discrimination in this case is best resolved by the trier of fact, whose function is to choose among competing inferences and make credibility determinations. See Hicks, 509 U.S. at 502. Thus, the evidence Marquez presented suffices to defeat the Department's summary judgment motion.
Conclusion
For the reasons set forth above, the court denies defendant's motion for summary judgment. [9-1] The court instructs the parties to discuss settlement prior to the next scheduled court date.