Opinion
Case No. 99 C 0482
August 31, 2000
MEMORANDUM OPINION AND ORDER
Montira Stivers, a woman of Thai national origin, worked the night shift as a data control clerk at Loyola University Medical Center for seven years until being fired in 1998, about six months after she filed an EEOC charge of discrimination. She is suing Loyola for retaliation under 42 U.S.C. § 2000e-3. Before the Court is Loyola's motion for summary judgment.
It is unlawful for an employer to retaliate against an employee for engaging in a statutorily protected expression like the filing of an EEOC charge. 42 U.S.C. § 2000e-3(a). While the complaint must involve discrimination that is prohibited by Title VII, "even if the degree of discrimination does not reach a level where it affects the terms and conditions of employment, if the employee complains and the employer fires him because of the complaint, the retaliation claim could still be valid." Hamner v. St. Vincent Hospital and Health Care Center, Inc, ___ F.3d ___, No. 99-3086, 2000 WL 1202287 at *4 (7th Cir. Aug. 24, 2000); see also Berg v. LaCrosse Cooler Co., 612 F.2d 1041, 1043 (7th Cir. 1980) (explaining that even where employee is wrong on the merits of the original charge or complaint, reprisals are not permitted).
Retaliation claims are analyzed in the same way as any other Title VII case. See Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1035 (7th Cir. 1998). Stivers elects to proceed under the McDonnell Douglas burden-shifting framework, under which a plaintiff must first establish a prima face case of retaliation. In other words, she must show that she engaged in an activity protected by Title VII and suffered an adverse employment action as a result. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Loyola concedes that Stivers engaged in protected activity (she filed an EEOC charge on February 18, 1998) and that she suffered an adverse employment action (she was fired on August 31, 1998) but claims she cannot demonstrate a causal link between the two. And even if she could meet this final prong of her prima facie case, Loyola says it had a valid, non-retaliatory and non-pretextual reason for terminating Stivers: she threatened her supervisor.
Before addressing the pretext issue, we consider whether Stivers has shown a casual link between her EEOC charge and her eventual discharge. A plaintiff may establish a prima facie case of causation with evidence of suspicious timing. See, e.g., Johnson v. City of Fort Wayne, Indiana, 91 E.3d 922, 938 (7th Cir. 1996) (adverse employment action two weeks after the filing of an EEOC charge); Dey v. Colt Construction Development Co., 28 F.3d 1446, 1458 (7th Cir. 1994) (decision to discharge plaintiff was made four weeks after she complained). Stivers relies on this type of evidence to show causation. Upset that younger white male employees had been hired at the same rate of pay as her, and that she had been required to work the job of two clerks who had left but had not been replaced, Stivers filed an EEOC charge on February 18, 1998. Three and a half weeks later, Stivers' supervisor, Claudia Hummel, gave Stivers her first negative performance evaluation in six years. In response, Stivers complained to Fran Hlavin, her Area Manager, who told Stivers to write a rebuttal, which she submitted on April 12, 1998, partly accusing Hummel of retaliation and discrimination.
A few months later, on July 13, 1998, Hummel instructed Stivers via e-mail to remove a photograph of her family that she had taped up on the wall. Stivers says she never got this message; she was having difficulty accessing her e-mail. Without discussing it with Stivers, Hummel removed the photograph herself Stivers says she did not know Hummel wanted the photograph removed and complained to the President of Loyola University, Father Piderit, that Hummel's actions were discriminatory, as others had nailed or taped photos on the walls. John Kambanis, Loyola's Vice-President of Human Resources, contacted Stivers about her complaint to Father Piderit and instructed Stivers on the formal complaint procedure. In the meantime, Hummel suspended Stivers for insubordination. By mid-August, Stivers' formal complaint was pending. On August 28, 1998, before that complaint was heard, Hummel met with Stivers to give her a written warning for not providing enough notice that she had been summoned for jury duty earlier that month. Hummel then accused Stivers of calling a co-worker a liar. In response, Stivers told Hummel she was lying and said "one day you are going to get it." Hummel and Sherron Glenn, Loyola's director of human resources who was also present when Stivers made this comment, immediately suspended Stivers and told her to leave the premises. Stivers was officially terminated three days later, on August 31, 1998.
Glenn says she Glenn alone told Stivers that she was suspended, but Stivers attributes this to both Glenn and Hummel. This factual dispute cannot be resolved on summary judgment.
Stivers' termination came six months after she filed her February 1998 EEOC charge. The longer the interval between the protected activity and the adverse action, the less likely it is that an inference of causation will be drawn; there is support for the proposition that six months is too long an interval to draw any such inference. Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir. 1992) (six month lapse of time negates causal connection). In this case, however, events that took place during the six month interval support an inference of a causal link. Cf. Adusumilli v. City of Chicago, 164 F.3d 353, 363 (7th Cir. 1998) (sequence of events over eight months after plaintiff's protected activity could raise the inference of a causal link), cert. denied, ___ U.S. ___, 120 S.Ct. 450 (1999); Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133, 1136 (7th Cir. 1997) ("Suspicious timing is plausible when events occur over weeks or months perhaps, but not once per year with no other supposed discrimination occurring in between."). In March — three and half weeks after Stivers filed her EEOC charge — Hummel gave Stivers her first poor performance evaluation; in April, Stivers complained that Hummel's review was retaliatory; a few months later — in July — Hummel suspended Stivers for what seems to have been a trivial, non-performance related infraction (she failed to remove a family photograph from her work station, which Stivers says she did not know she had to remove); in early to mid-August, Stivers again complained about Hummel's treatment; on August 31, before this complaint was formally heard, Loyola terminated Stivers. Considering Stivers' almost blemishless employment record in the six years before she filed her EEOC charge, this sequence of events is sufficient to raise an inference of a causal link between her EEOC charge and her termination.
Loyola says that in January 1998, Stivers received a verbal warning concerning her work performance. This, however, appear to be the only blot on Stivers' record prior to her EEOC charge.
Loyola is correct that the timing of the complaints alone does not demonstrate a causal link where the plaintiff cannot show she would not have been fired "but for" her protected expression. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1034 (7th Cir. 1999). Indeed, there is no causal link between a protected activity and adverse employment action "if the employer remained unaware of the protected activity." Dey, 28 F.3d at 1458. Loyola says that the decision makers involved in Stivers' termination were unaware of her protected activities. Hummel and Glenn, who were at the meeting when Stivers allegedly threatened Hummel, Sam Matiello, Stivers' department head who recommended that Stivers be terminated, and Richard Bacchi, Loyola's director of human relations who concurred in the termination decision, all claim to have been unaware of Stivers' EEOC charge and complaints. Lowell Dunlap, Loyola's director of Affirmative Action, claims to have been solely responsible for responding to Stivers' EEOC charge; he says it was his policy not to disclose to any supervisor or other employee that a current employee has filed a charge of discrimination.
Stivers has presented evidence contradicting this claim of ignorance. Stivers says that it can be inferred from Dunlap's notes regarding his investigation into Stivers' charge that he met with Matiello and Hummel on April 22, 1998 to discuss that charge. Pltf. 56.1(b)(3)(B) Stmt., Ex. V. We agree. At the top of Dunlap's notes he wrote "Sam Claudia — 4/22/98," and the notes he took seem to indicate that he met with Matiello (Sam) and Hummel (Claudia) on that date. This meeting would have been four months before Loyola terminated Stivers, and shortly before Dunlap submitted his response with the EEOC. A jury could infer from this and other evidence presented by Stivers that Dunlap met with Matiello and Hummel to help prepare his response to the charge, creating a genuine issue of material fact regarding whether they had prior knowledge of Stivers' protected activities. See, e.g., Dey, 28 F.3d at 1458 (plaintiff need not prove by a preponderance of the evidence at the summary judgment stage that plaintiff's supervisor was aware of her complaints; she must only produce evidence that would support such an inference); Scott v. Sunrise Healthcare Corp., 195 F.3d 938, 941 (7th Cir. 1999) (same).
Loyola argues that even if Matiello and Hummel lied and did have prior knowledge of Stivers' protected activities, they were not involved in the decision to terminate her. But Matiello was initially identified by Loyola as one of the decision makers in her termination, and indeed, he sent Stivers a termination letter; and although Loyola says Hummel was not a decision maker, she was Stivers' direct supervisor and the target of the "threat" that led to Stivers' termination. Even if Hummel truly did have no involvement in the ultimate decision to terminate Stivers, it was her perception of Stivers' "threat" that counted (at least in part). It would therefore not be unreasonable to assume that she had some effect on Loyola's decision. See, e.g., Dey, 28 F.3d at 1459 (even if the plaintiff's supervisor did not share the plaintiff's complaints with the ultimate decision makers, those complaints may have affected the supervisor's unflattering assessment of the plaintiff's job performance); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (same). Moreover, with all of Stivers' complaints to her superiors (Fran Hlavin, Father Piderit, John Kambanis), it is hard to imagine that none of the decision makers were aware that she had complained about retaliation or discrimination.
Loyola next argues that Stivers cannot meet the "but for" causal link because she was fired for insubordination. Stivers admits she called Hummel a liar and said, "one day you are going to get it." Though Stivers had no record or history of violent or threatening behavior, Loyola says that Glenn interpreted the comment as a threat of physical violence, making her suspension and termination appropriate under Loyola's rules of conduct. In her affidavit, however, Stivers denies that she was threatening Hummel; she says she did not point her finger at Hummel and did not get up out of her chair. Rather, Stivers (whose first language is not English) says meant to convey the concept that "what goes around comes around" in response to what she claims was a false allegation. Stivers' comment was not one that obviously would be perceived as a threat of violence. The comment was not so patently threatening as to eliminate the possibility that Loyola's actions were affected by the fact that Stivers had filed an EEOC complaint. Put another way, a jury could infer that Loyola chose to "interpret" Stivers' comment the way it did as an excuse to get back at her for her EEOC complaint.
For these reasons, we conclude that Stivers has offered enough evidence to satisfy the causal link aspect of her prima facie case. Cf. Bellaver v. Quanex Corp., 200 F.3d 485, 493 (7th Cir. 2000) (describing "low burden" plaintiff carries in establishing prima facie case; evidence "need not be overwhelming or even destined to prevail.").
This brings us to the issue of pretext, which requires that Stivers make a slightly higher showing. Because Loyola has offered a legitimate non-discriminatory reason for Stivers' termination, Stivers must offer evidence from which a jury could conclude that this reason was pretextual, that is, a lie or a phony reason. See Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999) (citing Richter v. Hook-SuperX, Inc., 142 F.3d 1024, 1029-30 (7th Cir. 1998)). Stivers can demonstrate pretext either directly, with evidence suggesting that retaliation was the most likely motive for the termination, or indirectly, by showing that Loyola's proffered reason was not believable. See Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996). The indirect method requires some showing that Loyola's stated reason (1) has no basis in fact, (2) was not the `real reason', or (3) was insufficient to warrant the termination. Baron, 195 F.3d at 341 (citing Wolf, 77 F.3d at 919).
By poking a hole in Loyola's defense, Stivers has created a genuine issue as to whether Loyola's stated reason was phony. See, e.g., Mills v. Health Care Service Corp., 171 F.3d 450, 458 (7th Cir. 1999) (finding that if the employee produces evidence from which a rational trier of fact could infer that the stated reason for the employer's action was not the real reason, then there must be a trial). Loyola was adamant that no decision maker knew of Stivers' EEOC complaint; Dunlap testified that he told no one. But as discussed earlier, there is evidence that both Hummel and Stivers' department head (Matiello) may have known about the complaint, suggesting that Dunlap might have let the cat out of the bag. Evidence that people who were involved in the decision to terminate Stivers may be lying when they said they did not know about her EEOC complaint would permit a reasonable juror to conclude that their stated reasons for the decision are a pretext. This does not mean that Stivers will ultimately win the case simply by trying to undercut Loyola's articulated reason, for even if she succeeds in this effort, the inference of retaliation is only permissive, not mandatory. At trial a plaintiff is "well advised to present additional evidence [beyond pretext] because the fact finder is not required to find in [the plaintiff's favor] simply because she establishes a prima facie case and shows that the employer's proffered reasons are false." Mills, 171 F.3d at 458 (citation omitted). But that is an issue for the jury, not the Court.
By this we do not intend to preclude the other evidence Stivers has offered on the pretext issue.
Conclusion
For these reasons, we deny Loyola's motion for summary judgment. The final pretrial order in conformity with Local Rule 16.1 remains due on September 30, 2000, and the case remains set for trial on January 8, 2001. A final pretrial conference date will be set in due course.