O'Donnell v. Caine Weiner Company, LLC

Filing 131

MOTION by Defendant Caine Weiner Company, LLC for judgment as a Matter of Law on Retaliation Claims (O'Hagan, Kevin)

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICIA J. O'DONNELL,

Plaintiff,
v.
CAINE & WEINER COMPANY, LLC.

Defendant.

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No. 14-cv-06839
JUDGE ALONSO

DEFENDANT’S MOTION FOR A JUDGMENT
AS A MATTER OF LAW ON RETALIATION CLAIMS
NOW COMES the Defendant, CAINE & WEINER COMPANY, LLC (“Caine Weiner”),
by and through its attorneys O’HAGAN MEYER, LLC, and moves this Honorable Court for a
Judgment as a Matter of Law under Rule 50(a) of the Federal Rules of Civil Procedure on
Plaintiff’s claims for retaliation under Title VII of 1964, 42 USCS § 2000e-3 and the Equal Pay
Act, 29 U.S.C. 206(d). In support thereof, Defendant states as follows:
INTRODUCTION
Patricia O’Donnell (“Plaintiff”) has shown no discriminatory motive for why Brian
Patterson, Frank Dispensa, Joe Batie or Chris Melisko would recommend her termination based
on the complaints she made regarding wages. The evidence established in Plaintiff’s case in
chief is merely that Plaintiff made complaints and that the decision to terminate her came after
she took and copied confidential information. To establish retaliation, Plaintiff must prove by a
a preponderance of the evidence that her complaints were a motive in her termination. Not only
has she not met her burden, there is not even a scintilla of evidence of motive. No witness has

presented evidence that a reasonable trier of fact could find in favor of Plaintiff on her retaliation
claims.
ARGUMENT
A. Rule 50(a) Standard
Under Rule 50(a), a court should render judgment as a matter of law when “a party has
been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue.” Fed R. Civ. P. 50(a); see also Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000).
“A motion for judgment as a matter of law should be granted only when there can be but
one conclusion from the evidence.” Id. at 636 (citation omitted). The Court applies this standard
in reviewing Defendants' arguments for judgment on each count. Roberts v. County of Cook, 01
C 9373, 2004 WL 1088230, at *1 (N.D. Ill. May 12, 2004).
B. Title VII and Equal Pay Act Retaliation Standard
O’Donnell has brought two separate retaliation claims that she has tried to present to the
jury in this trial. The first is under Title VII of 1964, 42 USCS § 2000e-3 and the second under
the Equal Pay Act, 29 U.S.C. 206(d). In order to set forth a claim based on retaliation under the
Equal Pay Act or Title VII, O’Donnell must allege that: (1) she engaged in statutorily protected
activity; (2) she suffered an adverse action by her employer or former employer; and (3) a causal
link exists between the protected expression and the adverse action. See Dunning v. Simmons
Airlines, Inc., 62 F.3d 863, 868-69 (7th Cir. 1995); also see EEOC v. K & J Mgmt., Inc., 2000
U.S. Dist. LEXIS 8012, 7 (N.D. Ill. June 7, 2000); Miller v. Am. Family Mut. Ins. Co., 203 F.3d
997, 1007 (7th Cir. 2000).

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To establish causation, a plaintiff must do more than merely point to the temporal link
between engaging in protected activity and an adverse employment action; rather, the plaintiff
must put forth other evidence that suggests that the protected activities were related to the
employer's decision. Hall v. Forest River, Inc., 536 F.3d 615 (7th Cir. 2008).
“In the context of a claim of retaliation, while it is true that a court may consider temporal
proximity of the protected expression and the adverse employment action in its causation
analysis, temporal sequence is not all the court considers. The court must look to any intervening
cause that breaks the causal chain.” Smith v. Am. Airlines, Inc., 2001 U.S. Dist. LEXIS 8443,
*14 (N.D. Ill. June 19, 2001). “Thus, an intervening cause precludes the inference from timing
alone.” Paquet v. Pace, 156 F. Supp. 2d 761, 773 (N.D. Ill. 2001).
C. No Caine Weiner Supervisor Had Any Discriminatory Animus Prior to
Recommending Patricia O’Donnell Be Terminated Based On Her Complaints
There has been no testimony or evidence that suggests that Plaintiff’s complaints were
related to Caine Weiner’s decision to terminate Plaintiff. In fact, every witness has testified that
her complaints had no part in any employment decision. More importantly, no company witness
even said it affected them at all: not one single negative word about her wage and discrimination
complaints. To the contrary, the witness testimony from Chris Melisko, Joe Batie, John Pucin,
Frank Dispensa and Brian Patterson was that Plaintiff was listened to and encouraged to seek her
rights and told to just keep doing her job. Quite frankly, Caine Weiner’s handling of her
complaints was just the opposite of animus or motive.
In a 7th circuit decision reviewing the district courts granting a judgment as a matter of
law based on retaliation, they reviewed the evidence of the decision makers to determine if there
was any evidence of discriminatory motive presented. See Willis v. Marion County Auditor's
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Office, 118 F.3d 542, 547 (7th Cir. 1997). There has been no showing that Chris Melisko, Joe
Batie, John Pucin, Frank Dispensa and Brian Patterson or any other individual at Caine Weiner
had any animus to Patricia O’Donnell making complaints of discriminatory pay.

If any

individual at Caine Weiner had an issue with Plaintiff complaining about pay in relation to others
at the company, she would have been terminated long before she copied personnel documents.
D. The Facts Presented At Trial Show More Than O’Donnell Just Inadvertently
Finding Confidential Documents, Which Was The Basis For Denying The
Previously Filed Motion For Summary Judgment
The facts presented at trial are that Patricia O’Donnell “made copies” of personnel
documents which led to her immediate dismissal and termination. Any “inadvertence” regarding
possession does not apply to her copying of sensitive and confidential documents. The act of
copying them cannot be said to be inadvertent. This court denied Defendant’s previous motion
for summary judgement based on the fact that it was thought that, “A jury could find that an
employee's inadvertently finding confidential documents among her own things is such a flimsy
reason for terminating her that it cannot be credited, and that it was a pretext for retaliation for
protected activity.” (See Order Denying Motion For Summary Judgement attached as Exhibit A,
p. 8 ¶ 2).
The facts established after Plaintiff presented her case are that she made copies of
confidential employment documents. After she confessed to doing this, she was immediately
suspended the next day and terminated. The confession to taking and copying confidential
documents breaks any casual chain to connect her complaints about wages to her eventual
termination.
The evidence has established that Patricia O’Donnell took confidential employee
documents and that no decision had been made prior to terminate her until she took this action.
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Based on her actions and the testimony at this trial, there is no legally sufficient evidentiary basis
for a reasonable jury to find for Plaintiff on the issue of retaliation.

CONCLUSION

For all the reasons stated herein, Defendant Caine & Weiner Company, LLC requests that
this Court enter an Order granting Plaintiff’s Judgment as a Matter of Law under Rule 50(a) of
the Federal Rules of Civil Procedure on Plaintiff’s claims for retaliation under Title VII of 1964,
42 USCS § 2000e-3 and the Equal Pay Act, 29 U.S.C. 206(d).

By:

/s/ Kevin M. O’Hagan
Attorney for Caine & Weiner Company, LLC

Kevin M. O'Hagan (ARDC No. 6211446)
Jamie L. Filipovic (ARDC No. 6278943)
Ryan T. Benson (ARDC No. 6312338)
O'Hagan Meyer, LLC
One East Wacker Drive
Suite 3400
Chicago, Illinois 60601
312.422.6100 TEL
312.422.6110 FACSIMILE
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on June 15, 2017, all counsel of record who are
deemed to have consented to electronic service are being served a true and correct copy of the
foregoing document using the Court’s CM/ECF system, in compliance with Local Rule 5.2(a):
Ernest T. Rosellio
ERNEST T. ROSSIELLO & ASSOCIATES, P.C.
134 North LaSalle Street, Suite 1760
Chicago, Illinois 60602
[e-mail]

/s/ Kevin M. O’Hagan
Kevin M. O'Hagan (ARDC No. 6211446)
Jamie L. Filipovic (ARDC No. 6278943)
Ryan T. Benson (ARDC No. 6312338)
O'Hagan Meyer, LLC
One East Wacker Drive
Suite 3400
Chicago, Illinois 60601
312.422.6100 TEL
312.422.6110 FACSIMILE
[e-mail]
[e-mail]
[e-mail]

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