Russo v. Midland Paper Company
Filing
52
MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 10/21/2011:Mailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TINA L. RUSSO,
Plaintiff,
v.
MIDLAND PAPER COMPANY,
Defendant.
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No. 09 C 07739
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
In October 2007, Tina Russo, an Accounts Receivable Supervisor at Midland
Paper Company, told her supervisor that she was pregnant. R. 18 ¶ 26.1 Russo went
on pregnancy leave on January 1, 2008 and gave birth to her son in April 2008. Id. ¶¶
22-25. Later that month, she learned that her employment with Midland was
terminated. Id. ¶ 50. Russo filed this lawsuit, alleging that the termination constituted
discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., as amended by the Pregnancy Discrimination Act. R. 1. Midland has
moved for summary judgment. R. 17. For the reasons discussed below, the Court grants
Midland’s motion for summary judgment because Russo has not presented sufficient
evidence to raise a genuine issue on whether the relevant Midland decision-makers
discriminated against her.
1
Citation to the docket is “R.” followed by the entry number and, when necessary, the
page/paragraph number.
I.
Because this opinion address Midland’s summary judgment motion, the Court
states the facts in the light most favorable to Russo (as the non-movant) and makes
reasonable inferences in her favor. Tina Russo was hired by Midland Paper Company
in February 2000 as a credit and collection representative. R. 18 ¶ 5. In 2005, she was
promoted to the Accounts Receivable Supervisor position. Id. ¶ 6. Russo’s job duties as
an Accounts Receivable Supervisor included overseeing two major accounts, serving
as the Midland Bank Credit bank liaison, and supervising two credit clerks. Id. ¶ 7.
Her supervisory duties were not a large part of her overall responsibilities; they took
up just 5-10% of her time. R. 23 ¶ 25.
As a Midland employee, Russo had a mixed performance record. Russo’s
performance review from August 2005-06 identified several areas for improvement,
and the review included some critical remarks regarding her work product, attitude,
and responsiveness to emails. R. 18 ¶ 9. Her performance review from August 2006-07
– the last one she received before being fired – included three recommendations for
areas of improvement. Id. ¶ 10. Throughout 2007, Russo also received reprimands and
warnings based on her “not acceptable attitude” and improper adjustments of accounts.
Id. ¶¶ 11-13. One of her Employee Warning Reports stated that “further occurrences
may result in termination.” Id. ¶ 14.
Despite receiving some criticism for her work performance, Russo received two
annual merit-based pay increases during the same time period. Her August 2005-06
review included positive comments and she received a pay raise shortly afterwards. R.
2
23 ¶ 15. Her August 2006-07 review the next year was also followed by a pay raise. Id.
¶ 16. Around the time she received this second raise, Russo informed Midland’s Human
Resources Department that she was pregnant. Id. ¶ 17. This was her third pregnancy
while working at Midland.2 R. 18 ¶¶ 16-25. Russo then told Mari Fontana – her direct
supervisor – that she was pregnant. Id. ¶ 26. According to Russo, Fontana replied, “are
you f–ing kidding me?” R. 23 ¶ 17. Fontana admits that she reacted with surprise but
denies making this statement or using an expletive. R. 18 ¶ 26. Russo, on the other
hand, did not think that Fontana seemed shocked or surprised. R. 23 ¶ 17. After this
exchange, Russo felt that Fontana began to act “cold” and “distant.” Id.¶ 18.
Russo also noticed that other Midland employees began to act cold towards her.
During a business trip to Minnesota in November 2007, Russo told two Midland
employees, John Johnson (who was the General Manager of Midland’s Minneapolis
Division) and Judy Aleksiak (who was Vice President of Operations), that she was
pregnant. Id. ¶ 19. The two employees were not in Russo’s supervisory chain. R. 18,
Exh. 16 ¶ 3. (As explained below, neither Johnson nor Aleksiak were actually involved
in the decision to fire Russo.) According to Russo, Johnson responded by asking, “What
are we going to do with you on leave?” and Aleksiak responded by asking, “Don’t you
know what causes this?” R. 23 ¶ 19. After returning from the trip, Russo told Ralph
DeLetto – Midland’s Vice President and CFO – that she could no longer travel to
2
In 2001, she took a fourteen-week pregnancy leave and in 2003, she took a twenty-two
week pregnancy leave. R. 18 ¶¶ 16-17.
3
Minnesota. Id. ¶ 20. From that point on, Russo felt that her relationship with DeLetto
deteriorated because he also became cold and distant. R. 18, Exh. 1 at 112.
On December 27, 2007, Russo told Human Resources Representative Nikki
Facchini that she would need additional leave due to medical complications with the
pregnancy. R. 23 ¶ 21. Russo told Facchini that she would begin medical leave on
January 1. Id. Facchini responded by telling Russo that she was required to return to
work eight weeks after the birth of her child and that if she did not, her job would be
in jeopardy.3 Id. ¶ 23.
On January 1, 2008, Russo began her medical leave. R. 18 ¶ 22. While out on
leave, Russo had two interactions with Midland employees. In February 2008, Russo
attended a Midland Credit Department dinner, where she felt like she was treated
with “cold indifference and disdain.” R. 23 ¶ 29. On another occasion, Russo had
trouble connecting to her work e-mail so she contacted Fontana for help. Id. ¶ 30.
According to Russo, Fontana was unhelpful and responded by simply saying “oh
really.” Id.
While Russo was out on leave, Fontana and Midland CFO DeLetto discussed
how to cope with Russo’s absence. R. 18 ¶ 34. They agreed that Nicholas Rog – a Credit
Analyst who was on probationary status – would take over Russo’s two major accounts.
Id.; R. 23 ¶ 26. Fontana would shoulder Russo’s supervisory responsibilities. R. 18 ¶
36. Richard Fey, another Midland employee, would take over Russo’s bank liaison role
3
Facchini also expressed concern to DeLetto that calculating Russo’s additional vacation
and sick/personal time would be a problem if “she does not return to work.” R. 23 ¶ 21.
4
and another account. Id. Cindy Patrick, one of Russo’s peers in the department, would
also take over an account. Id.
Soon, Fontana realized that the Credit Department staff was able to absorb all
of Russo’s job responsibilities with little trouble. Id. ¶ 47. Fontana also noted that the
recession was seriously impacting Midland’s business performance. Id. These two
factors led her to believe that the Accounts Receivable Supervisor position was
redundant and unnecessary. Id. Fontana recommended that DeLetto (the company’s
CFO) fire Russo. Id. ¶ 48. DeLetto approved, and on April 22, 2008, Midland fired
Russo.4 Id. ¶ 49.
After finishing the required EEOC process, Russo filed a complaint alleging
violations of Title VII and the Pregnancy Discrimination Act. R. 1. Midland has moved
for summary judgment, R.16, and the motion is now fully briefed.
II.
Summary judgment must be granted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining summary
judgment motions, “facts must be viewed in the light most favorable to the nonmoving
party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372,
4
Fontana prepared a separation report that explained that Russo was fired as part of
a “Reduction in Force.” R.24, Exh. S.
5
380 (2007). The party seeking summary judgment has the burden of establishing the
lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). After “a properly supported motion for summary judgment is made, the adverse
party ‘must set forth specific facts showing that there is a genuine issue for trial.’ ”
Anderson, 477 U.S. at 255 (quoting Fed R. Civ. P. 56(e)).
III.
Under Title VII, it is unlawful for employers “to discharge any individual, or
otherwise to discriminate against any individual with respect to . . . compensation,
terms, conditions, or privileges of employment, because of such individual’s . . .
sex . . . .” 42 U.S.C. § 2000e-2(a)(1). The phrase “because of sex” has been defined by the
Pregnancy Discrimination Act (PDA), through which Congress amended Title VII in
1978, to mean “because of or on the basis of pregnancy, childbirth, or related medical
conditions.” Venturelli v. ARC Community Services, Inc., 350 F.3d 592, 598 (7th Cir.
2003) (citing 42 U.S.C. § 2000e(k)). To respond to the summary judgment motion,
Russo may proceed by either the direct or the indirect method. Troupe v. May Dep’t
Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).
A.
Under the direct method, there are two types of permissible evidence. First,
there is direct evidence, or evidence that, if believed by the trier of fact, would prove
the fact in question “without reliance on inference or presumption.” Rogers v. City of
Chicago, 320 F.3d 748, 753 (7th Cir. 2003). Direct evidence “essentially requires an
6
admission by the decision-maker that his actions were based upon the prohibited
animus.” Id. These admissions are rare, and Russo has not presented any direct
evidence of discrimination by Midland’s decision-makers. The second type of evidence
permitted under the direct method is circumstantial evidence, or evidence that allows
a jury to infer intentional discrimination. Id.
Without putting too fine a point on rigid categories, there are generally three
types of circumstantial evidence, each of which is enough by itself to defeat summary
judgment. Serednyj v. Beverly Healthcare LCC, – F.3d –, 2011 WL 3800123 (7th Cir.
Aug. 26, 2011). The first includes “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.” Troupe, 20 F.3d at 736 (citing Giacoletto v. Amax Zinc Co., 954 F.2d
424 (7th Cir. 1992)). The second is evidence that “employees similarly situated to the
plaintiff other than [her pregnancy] received systematically better treatment.” Id.
(citing American Nurses’ Ass’n v. Illinois, 783 F.2d 716, 728 (7th Cir.1986)). The third
is evidence that the “plaintiff was qualified for the job in question but passed over in
favor of (or replaced by) a person not having the forbidden characteristic and that the
employer’s stated reason for the difference in treatment is unworthy of belief, a mere
pretext for discrimination.” Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993)). Although Russo argues that she has all three types of circumstantial evidence,
for now the Court will only address arguments related to evidence in the first category;
7
the other two categories of circumstantial evidence – similarly situated individuals and
pretext – will be discussed in the indirect method section below (even when all the
circumstantial evidence is considered together, Russo has not raised a genuine issue
for trial).
Russo presents a series of statements and behaviors she believes create a mosaic
of circumstantial evidence of discrimination. When an “ambiguous comment is made
with a tone of sarcasm or enmity, a court may attribute greater weight to an alleged
discriminatory inference.” Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d 729,
735 (7th Cir. 2011). Yet stray workplace remarks “cannot defeat summary judgment
in favor of an employer unless they are both proximate and related to the employment
decision in question.” Bahl v. Royal Indem. Co., 115 F.3d 1283, 1293 (7th Cir. 1997)
(citing McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686-87 (7th Cir. 1991)). If the
remark was made long before the firing, the plaintiff must show that it was related to
the decision to discharge. E.g., Geier v. Medtronic, 99 F.3d 238, 242 (7th. Cir. 1996)
(requiring a casual nexus between remark and firing).
The first statement Russo presents is Fontana’s reaction (Fontana was Russo’s
direct supervisor) when Fontana first heard about the pregnancy. According to Russo,
Fontana exclaimed, “are you f–ing kidding me?” R. 23 ¶ 17. Fontana denies making
this statement. R. 18 ¶ 26. Fontana’s statement and the use of an expletive – if true
– does suggest a generally negative tone. But, even viewing reasonable inferences in
her favor, Russo has not shown that this statement reflects discrimination related to
her firing. Fontana made the statement in October 2007, six months before Russo was
8
fired. R. 23 ¶ 17. Russo has not presented any evidence that this solitary statement
was related to the decision. The relevance of the remark is further weakened by its
ambiguity, which could be an expression of surprise because, according to Fontana and
undisputed by Russo, Russo had previously told Fontana that Russo was thinking
about having her “tubes tied” to prevent another pregnancy. R. 18 ¶ 26. And while the
use of an expletive in this situation may be inappropriate, rude, or offensive, it was not
discriminatory. Geier, 99 F.3d at 242 (“The comment, while awkward, insensitive and
ungenerous, does not rise to the level of direct evidence of discrimination.”).
Russo also presents other statements that were made to her that she believes
were discriminatory. In November 2007, Russo was in Minnesota for work when she
told John Johnson and Judy Aleksiak – two Midland employees – that she was
pregnant. R. 23 ¶ 19. Johnson responded by asking, “What are we going to do with you
on leave?” and Aleksiak asked, “Don’t you know what causes this?” Id. But there is no
evidence that either Johnson or Aleksiak who had any say whatsoever in the firing
decision. E.g., Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 784 (7th Cir.
2004) (“Any examples of allegedly discriminatory treatment by coworkers is wholly
irrelevant to the mosaic [of circumstantial evidence], as his coworkers had nothing to
do with the decision to terminate his employment.”).
Another set of statements relied on by Russo was made by a human resources
employee. In late December 2007, Russo told Human Resources Representative
Facchini that she would require medical leave due to pregnancy complications. R. 23
¶ 21. According to Russo, Facchini made two statements that suggest discrimination.
9
First, Facchini discussed with CFO DeLetto the possibility of Russo not returning to
work after her leave. Id. ¶ 21. Russo believes this means Midland anticipated firing
her. But Russo offers no evidence that the discussion was anything other than a
discussion about, as Russo herself puts it, Facchini’s concern about “paying Russo
additional vacation and sick/personal time ‘if she does not return to work.’” Id.
Second, Facchini said Russo had to return to work eight weeks after the birth
of her child, despite the fact that Russo was entitled to twelve weeks. Id. ¶ 23. Russo
believes this amounts to Midland pressuring her to quit. To be sure, when viewed in
the light most favorable to Russo, a jury could reasonably rely on Facchini’s
admonition that Russo must return within eight weeks suggests that Facchini
intended to apply pressure on Russo to quit. Indeed, Midland admits that Russo was
entitled to twelve weeks of unpaid medical leave in addition to her pregnancy leave.
R. 18 ¶ 21. But Russo cannot rely on this statement by Facchini to show a
discriminatory basis for the firing because there is no evidence that Facchini was
involved in the discharge decision. “[A]ctions and comments by employees not involved
in a discharge decision cannot provide a basis for charging other employees with
discrimination.” Jardien v. Winston Network, Inc., 888 F.2d 1151, 1155 (7th Cir.1989).
Facchini worked in the human resources department, but she was not in Russo’s
supervisory chain, and Russo presents no evidence showing that Facchini was
otherwise involved in the decision to fire her. Facchni’s statements (and her potential
discriminatory intent) thus cannot be imputed to the actual decision-makers or to
Midland. R. 18 ¶ 19.
10
Next, Russo points to Midland employees treating her with coldness and disdain
as circumstantial evidence of improper discrimination. For example, on a particular
day when she was away on leave, Russo had trouble accessing her e-mail. Id. ¶ 30.
When she asked Fontana for help, Fontana simply responded, “oh, really.” Id. Russo
also claims that she was treated coldly by her colleagues and superiors at a Midland
Credit Analyst social dinner. Id. ¶ 29.
But none of these statements or behaviors contribute much, if anything, to the
mosaic of discrimination. “[U]nfriendly glances and other subtle indicia of distaste
generally fall short of establishing discrimination under [the direct method].” Grigsby
v. LaHood, 628 F.3d 354, 358 (7th Cir. 2010). Fontana’s terse response and Russo’s
feeling that her colleagues were being “cold” to her are not enough to support an
inference of discrimination.
And finally, Russo maintains that Midland’s decision to rely on Nicholas Rog to
take over Russo’s job duties is evidence of discriminatory intent. First, Russo argues
that Midland anticipated firing Russo because Rog was hired immediately after
Midland learned about the pregnancy. R. 25 at 9. But Midland had planned to hire a
Credit Analyst in mid-September, well before Russo informed Midland about her
pregnancy. R. 18 ¶ 40. And Rog was hired specifically to work on the Rockford account
– which was not one of Russo’s responsibilities. R. 18, Rog Dep. Tr. at 17:21 – 18:4.
Second, Russo identifies the term “personnel change” in Rog’s December 2008
performance review to suggest that Midland had hired Rog in anticipation of firing
Russo. R.23 ¶ 27. But that argument is unpersuasive because Rog’s review was written
11
in October 2008 – six months after Russo was fired. R. 28 at 6. The phrase “personnel
change” may have referred to Russo’s firing, but Russo fails to connect that term with
any discriminatory intent by Midland. In summary, Russo’s has not raised a genuine
issue using the direct method.
B.
Under the indirect method, the plaintiff must first demonstrate a prima facie
case of discrimination. To show a prima facie case of pregnancy discrimination, she
must show that (1) she was a member of a protected class, (2) that she suffered an
adverse employment action, (3) that she was performing her job satisfactorily, and (4)
that a similarly situated individual outside her protected class was treated more
favorably. LaFary v. Rogers Group, Inc., 591 F.3d 903, 907 (7th Cir. 2010). If the
plaintiff can show a prima facie case, the employer must produce a non-discriminatory
reason for the adverse employment action. Id. If the employer makes such a showing,
the plaintiff must then produce evidence that the proffered reason is pretextual. Id.
The parties do not dispute that the first two requirements of the prima facie case are
met, so the Court will address the other two elements.
Russo insists that she met Midland’s legitimate expectations because she had
a history of favorable performance reviews and merit salary increases. R. 25 at 12.
According to Russo, her October 2007 review contained mostly positive comments, and
she received a 3.9% merit-based salary increase.5 R. 23 ¶ 16. This was the second year
5
In her Statement of Facts, Russo explains that she received a favorable verbal
performance evaluation and states that she “never received a written performance evaluation.”
12
in a row where Midland awarded her a pay raise. Id. ¶ 15. To the extent that she
received criticisms for her work, Russo argues, other employees received even harsher
criticisms. R. 25 at 11-12. Midland makes a half-hearted counter-argument by claiming
that these other employees were not comparable. R. 28 at 9. Midland does, however,
concede in a footnote that Russo did meet its legitimate expectations. Id. at 9 n. 5 (“To
be clear, Midland has never stated that Russo was terminated for poor performance.
Her job was eliminated because it no longer served a business purpose.”). Thus, the
truly disputed issue is the final requirement for the prima facie case: whether similarly
situated employees were treated more favorably.
Employees are similarly situated to the plaintiff if they are “directly comparable
to her in all material respects.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002). Russo does not present a list similarly situated employees, but instead
makes two separate arguments.
Russo’s first argument is that Midland departed from its usual practice when
it fired Russo but did not first fire four comparatively junior non-pregnant employees
– Dan Strobel, John Edgerton, Tonya Lynn, and Cynthia Patrick. R.25 at 7-8, 13.
Russo believes that Midland’s standard practice was to lay off employees based on
seniority. Accordingly, Russo argues that she was treated worse than these four
employees because they should have been fired first. Id. at 8. Midland counters by
arguing that there was never any seniority-based layoff policy. R. 28 at 8. Instead,
R. 23 ¶ 17. But Midland has furnished a copy of the written performance review, which does
reflect, as it turns out, generally positive comments. R.18, Exh. 5.
13
Russo was terminated after Midland discovered that other employees could absorb her
job responsibilities. Id.
Russo’s argument is unpersuasive. The four listed employees were unlike Russo
because they were not supervisors. R. 25 at 8, 13; R. 28 at 9. Although a plaintiff need
not show complete identity with a proposed comparator, she must show substantial
similarity. Serednyj v. Beverly Healthcare, LLC, – F.3d –, 2011 WL 3800123, at *8 (7th
Cir. Aug. 26, 2011). Russo has presented no evidence that these four employees had
any managerial role. Moreover, Russo supplies no evidence that Midland’s standard
practice was to conduct layoffs based on seniority – she only cites two other rounds of
layoffs that were decided by seniority. R. 25 at 7.
Russo’s second argument is that she was fired as part of a “mini-RIF”so she is
not required to present similarly situated employees. R.25 at 13. A mini-RIF is when
the fired employee’s duties are not eliminated but instead absorbed by other employees
not in the protected class. Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir. 2000).
A plaintiff, in a single-discharge case where duties are absorbed by other employees,
does not need to show that similarly situated employees were treated better because
an inference of discrimination arises from the fact that the plaintiff was constructively
“replaced” by workers outside of the protected class. Id. at 495. Russo lists all the
employees who absorbed her duties and argues that not a single one of them was
pregnant and therefore she can make her case as a mini-RIF. R. 25 at 13-14.
Midland counters by first arguing a legal issue: that the mini-RIF framework
does not apply here because it requires that the job that the plaintiff held was unique.
14
R.17 at 9-10 n. 4 (citing Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687,
693 (7th Cir. 2000)). This argument is unpersuasive. In Michas, the Seventh Circuit
did not hold that having a unique job was a requirement to applying a mini-RIF
analysis. Instead, Michas explained that when an employee with a unique job is fired,
the mini-RIF analysis is automatically triggered.6 Id. In other words, having a unique
job is sufficient by itself to trigger a mini-RIF analysis (and dispensing with showing
similarly situated employees), but a unique job is not necessary to enable the mini-RIF
approach.
A mini-RIF did occur here. Although Midland eliminated the position of
Accounts Receivable Supervisor, it did not eliminate Russo’s job responsibilities.
Instead, other Midland employees – Rog, Fontana, Fey, and Patrick – took on those
duties. R. 23 ¶ 26; R. 18 ¶ 36. These four employees were not in the protected class
because they were not pregnant and collectively, they replaced Russo. “The point of the
mini-RIF . . . is that the job really was not eliminated at all; because the fired
employee’s duties were absorbed by others, they were effectively replaced . . . .”
Bellaver, 200 F.3d at 495. Thus, Russo has established all four elements of the prima
facie case.
Once a plaintiff has presented a prima facie case of discrimination, the burden
shifts to the defendant to show that there was a legitimate, non-discriminatory reason
6
“Because of the fear that employers might misuse the RIF description to recharacterize
ordinary terminations as reductions in force when they terminate an individual with a unique
job, we have dispensed with the requirement that the plaintiff show ‘similarly situated’
employees who were treated more favorably.” Michas, 209 F.3d at 693.
15
for the adverse employment action. Clay v. Holy Cross Hospital, 253 F.3d 1000, 1005
(7th Cir. 2001). If the defendant can make such a showing, the plaintiff must show –
by a preponderance of the evidence – that the proffered evidence was pretext for
intentional discrimination.7 Id.
According to Midland, after Russo went on leave, Fontana and DeLetto
attempted to redistribute her job duties to other employees. R. 18 ¶ 34. Midland soon
discovered that it could operate just as well without Russo. Id.¶ 47. That discovery,
combined with Midland’s view that its business was being affected by the weak
economy, led Fontana and DeLetto to decide to eliminate Russo’s position. Id.
Once Midland has presented a legitimate, non-discriminatory reason for the
termination, the burden shifts to Russo to establish that the articulated reason is
pretext for discrimination. Clay, 253 F.3d at 1005. To show pretext, Russo must
demonstrate that the proffered reason was “a lie or completely lacks a factual basis.”
Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000). Russo cannot merely argue that
the presented reasons were mistaken, ill-considered, or foolish. Id. To show pretext, the
proffered reason must be dishonest. O’Connor v. Depaul University, 123 F.3d 665, 671
(7th Cir. 1997).
According to Russo, Midland did not fire Russo for genuine business reasons. R.
25 at 14. Russo maintains that her responsibilities as an Accounts Receivable
Supervisor were generally the same as other credit analysts who were not terminated.
7
Russo first argues that Midland has presented no legitimate, non-discriminatory
reason. R. 25 at 14. But Midland has, in fact, provided an explanation. R. 17 at 12-14.
16
Id. Thus, according to Russo, Midland must have singled her out for termination and
the “business reasons” explanation is pretext for discrimination. Id.
But Russo does not address Midland’s explanation that, during Russo’s leave
(when her duties had to be re-distributed), the company discovered that it could
operate without someone in Russo’s job. None of the other credit analysts gave Midland
the chance to make a similar discovery about their job duties because none of them
took leave for three months. Russo presents no evidence suggesting that Midland’s
business analysis was dishonest. And because Russo has not met her burden of
establishing pretext, she cannot prevail under the indirect method.
IV.
For the reasons stated above, Defendant’s motion for summary judgment [R. 16]
is granted.8
ENTERED:
___________________________
Honorable Edmond E. Chang
United States District Judge
DATE: October 21, 2011
8
Russo seems to contend that she has alleged a sex discrimination claim separate from
the pregnancy discrimination claim, but the complaint does not read that way. In any event,
Russo has presented no evidence that Midland discriminated against her based on sex,
separate and apart from the pregnancy discrimination claim. Having said that, the Court will
entertain a motion to reconsider if Russo wishes to present facts supporting an independent
sex discrimination claim and can justify why those facts were not presented earlier.
17
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