Donley v. Stryker Corporation

Filing 60

MEMORANDUM Opinion: The Court grants Stryker's Motion for Summary Judgment; dismisses Donley's claims; terminates this action; and will enter judgment in favor of Defendants. It is so ordered. Signed by the Honorable Charles P. Kocoras on 1/6/2017. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KELLEY DONLEY,
Plaintiff,
v.
STRYKER CORPORATION,
Defendant.

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15 C 5586

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Now before the Court is Defendant Stryker Sales Corporation’s (“Stryker”),
incorrectly named Stryker Corporation in the caption of the Complaint, Motion for
Summary Judgment against Plaintiff Kelley Donley (“Donley”), pursuant to Federal
Rule of Civil Procedure 56. For the following reasons, the Motion is granted.
BACKGROUND
The following facts taken from the record are undisputed, except where
otherwise noted.

The parties disagree regarding the event that led to Donley’s

termination. Stryker argues that it “terminated Donley’s employment . . . after it came
to light that she had taken [photos] of the CEO of one of Stryker’s valued vendors
[(the ‘CEO’)] in a highly intoxicated state in the CEO’s private hotel room and then
shared” them with coworkers. Conversely, Donley “claims that Stryker terminated

her employment in violation of Title VII because she . . . reported to Human
Resources alleged [sexual] harassment of” another employee.
Donley began working for Stryker, a medical technology company, in October
2010, after it acquired Gaymar Industries, which was Donley’s previous employer.
She worked from home, covering Stryker’s Central and Midwest territories. While
employed at Stryker, Donley attended a clinical team meeting in Vail, Colorado,
which took place from May 21, 2014 through May 23, 2014. The CEO also attended
the meeting in Vail. Throughout this time period, attendees stayed overnight at the
same “hotel where the meetings were taking place.”
During one of the nights in Vail, attendees got dinner in groups, and after
dinner, they “returned to the hotel bar.”

Throughout “the evening, Donley and

others,” including the CEO, consumed alcohol. Because the CEO was slurring her
words, and Donley “didn’t want to see anything adverse happen,” Donley testified
that “she escorted the . . . CEO up to her hotel room.” At her hotel room, the “CEO
washed her face and changed into her [long-sleeved flannel] pajamas” with Donley
present.
While in the CEO’s hotel room, Donley took a photo of the CEO “with her
Stryker-issued cell phone.” In response to this photo, the CEO stated, “oh, no, no,
more pictures.” Donley testified that she then responded, “are you kidding, on a good
day where I work hard at it, I don’t look half this cute.” Donley also showed the CEO
the photo. According to Donley, after seeing the photo, the CEO responded, “oh, I do
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look cute, don’t I[?]” Donley subsequently took another photo. In the second photo,
the “CEO blinked such that ‘it might have looked like she was sleeping.’” Prior to
leaving the CEO’s hotel room, Donley “put a garbage can . . . by the bed in case she
got sick in the middle of the night.” Donley then returned to the hotel bar.
While at the hotel bar, Donley claims that she showed Jeff Thompson
(“Thompson”), the Director of Clinical Sales and Donley’s supervisor, the second
photo of the CEO. Donley alleges that she did this because she wanted to show
Thompson that the CEO was okay. To further support her assertion that she showed
Thompson the photo on the night that she took it, Donley contends that Stryker stated
in a position statement that it “submitted to the EEOC in January of 2015 that
[Donley] showed the photos at issue to Thompson on the night she took them.”
Stryker disputes that Donley showed Thompson any photos on the night that
she took them. First, Thompson testified that Donley did not show him any photos of
the CEO upon her return to the hotel bar. Thompson also testified that Donley did not
tell him that she took any photos of the CEO. Thompson attested that a coworker on
his team first informed him that Donley took photos of the CEO, but he did not
remember who that person was. Thompson also stated that after he became aware of
the photos, he reported them to Stacie Ferschweiler (“Ferschweiler”), Director of
Human Resources, who investigates allegations of misconduct.

Second, Stryker

argues that Thompson did not review the position statement “before its submission to
the EEOC,” and asserts that it “simply stated” that during her exit interview, Ashlee
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Schexnyder (“Schexnyder”) “told . . . Ferschweiler that . . . Schexnyder was not the
only person to whom [Donley] showed [a] video and the photographs . . . . [Donley]
also showed the photos and video to . . . Thompson,” who similarly to Schexnyder,
“was unamused and advised [Donley] that she should delete the photos and video.”
Donley admits that, while she was at the hotel bar, “some of her coworkers
asked for photos [that she] had taken earlier in the evening, so she gave them her
phone[,] and she thinks they swiped through the photos on her phone.” Donley
testified that “nobody” said “a single word” to her about the photos of the CEO.
Donley claims that Stryker terminated her not because of the events that took
place in Vail, but in violation of Title VII because on or around June 27, 2014, “she
made a formal complaint of sexual harassment to” Ferschweiler. Donley informed
Ferschweiler that Stryker’s Midwest Regional Manager “behaved inappropriately
toward a female Sales Representative during . . . Stryker’s Midwest Regional
Meeting” in early June 2014 at the Manager’s cabin, “at which Donley had not been
present.” Purportedly, the Manager was touching the Representative’s leg, “making
inappropriate comments about her,” and the night before the meeting, he invited her to
his cabin alone.
Ferschweiler forwarded Donley’s internal complaint to Melissa Lewis
(“Lewis”), Senior Director of Human Resources. “Shortly thereafter, Lewis contacted
Donley.” Lewis “was very supportive, telling Donley that she appreciated Donley
bringing the situation to her and Ferschweiler’s attention.”
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Lewis also emailed

Donley to thank her for her time. Lewis advised Donley that “it was a highly
confidential matter,” and informed Donley that she “should not hesitate to reach out to
her should she have any questions or additional information.” According to Donley,
“Human Resources seemed to take the investigation seriously,” and Lewis
demonstrated empathy.

Donley admits that she did not receive “any negative

comments” regarding her “report against the . . . Manager, and that no one in
management ever made any statements to her that would indicate they had a problem
with” her internal complaint against the Manager.
Human Resources investigated Donley’s internal complaint, interviewing
multiple individuals, including the Representative and the Manager. “As a result of
the investigation,” Stryker decided to terminate the Manager’s employment on or
around July 31, 2014. At the time of his termination, Stryker offered the Manager a
severance agreement in the amount of $29,817.00. Stryker claims that it offered the
Manager the severance agreement “in exchange for strengthening the non-compete
agreement that” he signed with Stryker in 2006 because, as the Manager, he “was
aware of and had access to a large amount of proprietary information.” Donley, in
contrast, alleges that “[t]he severance agreement d[id] not strengthen the noncompete.” According to Donley, it “merely attached a copy of the previously signed
non-compete, required the . . . [Manager] to ‘acknowledge[ ] and affirm[ ] the
obligations set forth’ therein, and stated that the severance compensation was
‘additional consideration for post-termination obligations.’” Donley argues that she
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too “signed a Stryker Confidentiality, Intellectual Property, Non-Competition, and
Non-Solicitation Agreement in March of 2011.” Donley also claims that she “was
aware of and had access to a large amount of [Stryker’s] proprietary information.”
Nonetheless, Stryker did not offer Donley a severance agreement upon her
termination.
The parties dispute when Ferschweiler first became aware of the events that
took place in Vail. Stryker claims that it learned about the events in Vail around
August 1, 2014, during Schexnyder’s exit interview. As was her standard practice, on
“August 1, 2014, Ferschweiler conducted an [exit] interview of” Schexnyder, who
was one of Donley’s clinical team coworkers. During the exit interview, Schexnyder
“stated that Donley had helped the CEO . . . to bed” in Vail, “after the CEO had had
some alcoholic drinks, and when Donley returned to the hotel bar . . . , Donley had a
video that she had taken of the CEO passed out on her bed with a trashcan beside the
bed.” Schexnyder “also told Ferschweiler that Donley had taken photos of the CEO,
and that [she] thought that Donley had shown [them] to clinical team members Tracy
Wise [(‘Wise’)] and Chanda Wiedrick [(‘Wiedrick’)].”

After Schexnyder’s exit

interview, “Ferschweiler initiated a disciplinary investigation” to determine whether
Donley “had taken compromising photos or videos” of the CEO.
“Donley admits that she does not know how the photos came to Human
Resources’ attention.” However, Donley alleges that “Thompson testified that he
learned of the photos” before Ferschweiler began the formal investigation, reported
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them to her, and “asked her to investigate” them. Although “Thompson could not
recall specifically when he reported the photos to” Ferschweiler, according to Donley,
“he testified that [their] conversation was separate from the interviews he had with”
Ferschweiler during the formal investigation.
As part of the formal investigation, on Monday, August 4, 2014, “Ferschweiler
interviewed Wise,” who told her “that Donley had taken video and photos of the . . .
CEO in her room passed out on her bed with a trashcan next to her.” Wise informed
Ferschweiler that Donley showed the photos to Thompson.

That same day,

“Ferschweiler interviewed Wiedrick, who said that she” personally did not see “any
photos or videos of” the CEO, but that Schexnyder told her “that Donley had
videotaped the CEO passed out.” Ferschweiler interviewed Donley on August 6,
2014. During this interview, “Donley admitted to taking photos of the . . . CEO.”
Donley denied that these photos were “compromising.” Donley also denied that she
took any “compromising videos.” Donley “told Ferschweiler that she . . . deleted the
photos” “to free up additional space on her phone.” “There is no evidence that she
printed or sent them to anyone prior to deleting them.”
The investigation revealed that Donley took “images of the . . . CEO while she
was intoxicated, . . . in violation of Stryker policies.” Ferschweiler shared the results
of the investigation with Thompson. Ferschweiler also “informed Senior Director of
Patient Care Sales[,] Chad Rohrer [(‘Rohrer’),] of the outcome of the investigation,

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that in-house counsel had been consulted, and that the decision was made to terminate
Donley.”
While Stryker maintains that Thompson was the sole decisionmaker with
respect to Donley’s termination, Donley contends that Ferschweiler and Thompson
both acted as decisionmakers. “At the time of Donley’s termination,” however,
“Thompson did not have any knowledge” of Donley’s internal complaint or Stryker’s
later investigation of the Manager’s conduct. Moreover, “no one had shared with
Thompson” the reason for Stryker’s termination of the Manager.
“Thompson and Ferschweiler informed Donley of her termination on August
18, 2014.” Ferschweiler drafted Donley’s termination letter. “Thompson reviewed
and agreed with its contents.” Donley’s termination letter opened with a statement
that Stryker decided to terminate her employment “as a result of [her] inappropriate
conduct and poor judgment [that she] exhibited during the clinical team meeting in
Vail.” The termination letter noted that her behavior violated Corporate Policies One,
The Code of Conduct Policy; Four, The Drug-Free Workplace/Prohibited Substances
Policy; and Seven, The Electronic and Other Business Systems Policy.
During his deposition, “Thompson testified that he could not recall how
[Donley’s] conduct” “violated the cited policies,” while maintaining that his “role is
not to look at the exact policy numbers,” and “the fact that there’s inappropriate
images of a CEO of a company that [he does] business with continually and will
continue to do is” unacceptable. Similarly, in her deposition, Ferschweiler recognized
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that Policy Four targets those who use alcohol in the workplace, “acknowledged that
many Stryker employees were drinking on the” relevant night, stated that she did not
know whether Donley was intoxicated, and maintained that “it was not the mere fact
that [Donley] was drinking at the conference [that] resulted in a violation” of Policy
Four. Ferschweiler testified that Policy Four “relate[s] to a safe work environment as
well as endangering the reputation of Stryker in the community,” and that Donley
violated Policy Four by taking “photos and videos of [the CEO] in a compromising
state and then show[ing] them . . . to employees in a hotel bar.” This, according to
Ferschweiler, is “not conduct that is becoming of an employee, and” it creates an
environment to which Stryker would not subject its employees or its vendors.
Ferschweiler stated that taking the photos and “treat[ing] another person who was
attending a Stryker meeting in that manner is very damaging to Stryker.”
Ferschweiler concluded “that the decision [that Donley] made, whether under the
influence [of alcohol] or not, . . . create[d] an unsafe work environment for” the CEO.
Ferschweiler further “testified that [Donley] used a Stryker-provided device to
take inappropriate photographs and showed” them to other employees, in violation of
Policy Seven. Ferschweiler “acknowledged that [Donley] did not access anyone’s
personal files or communications without permission,” because Policy Seven prohibits
“employees from accessing or attempting to access documents, files, communications,
and recordings created on, by, or through electronic systems by another employee
without permission.” But “Ferschweiler asserted that [Donley neverthless] violated”
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Policy Seven “by taking the [CEO’s] photo without her ‘permission,’” stating that the
CEO “was not in the position to give permission to have those photos and videos
taken and then show[n] to other employees.”
On June 23, 2015, Donley filed a one-count Complaint, alleging retaliation in
violation of Title VII of the Civil Rights Act of 1964. On August 9, 2016, Stryker
filed a Motion for Summary Judgment against Donley, asserting “that there is no
genuine issue as to any material fact and Stryker is entitled to judgment as a matter of
law” because “the undisputed material facts demonstrate that [Donley] was terminated
for engaging in unacceptable and inappropriate behavior toward the CEO.” We agree.
LEGAL STANDARD
I.

Summary Judgment
A motion for summary judgment requires the Court to construe all facts and to

draw all reasonable inferences in favor of the non-movant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate “if 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 arises where a reasonable jury could find, based on the evidence of
record, in favor of the non-movant. Anderson, 477 U.S. at 248. In ruling on a motion
for summary judgment, the Court considers the whole record. See id. at 255–56.
Northern District of Illinois Local Rule 56.1 requires the “party moving for
summary judgment to include with that motion ‘a statement of material facts as to
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which the moving party contends there is no genuine issue and that entitle the moving
party to a judgement as a matter of law.’” Ammons v. Aramark Unif. Servs., Inc., 368
F.3d 809, 817 (7th Cir. 2004) (quoting N.D. Ill. R. 56.1(a)(3)). “The movant bears the
initial burden of showing that no genuine issue of material fact exists.” Genova v.
Kellogg, 12 C 3105, 2015 WL 3930351, at *3 (N.D. Ill. June 25, 2015). “The burden
then shifts to the nonmoving party to show through specific evidence that a triable
issue of fact remains on issues on which the movant bears the burden of proof at
trial.” Id. The non-moving party must respond to the movant’s Local Rule 56.1(a)(3)
statement and may not rest upon mere allegations in the pleadings or upon conclusory
statements in affidavits. N.D. Ill. R. 56.1(b); see Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). The non-movant must support her contentions with documentary
evidence of specific facts that demonstrate that there is a genuine issue for trial.
Celotex, 477 U.S. at 324.
II.

Title VII Retaliation Claims
“Title VII retaliation claims require proof that the desire to retaliate was the

but-for cause of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2521 (2013). In Ortiz v. Werner Enterprises, Incorporated,
the Seventh Circuit, clearly frustrated with the “[t]he use of disparate methods and the
search for elusive mosaics,” substituted “the notion of two distinct methods of proof”
of retaliation—“the ‘direct’ and ‘indirect’—with a more straight-forward inquiry.”
834 F.3d 760, 764 (7th Cir. 2016); Harris v. Office of the Chief Judge of the Circuit
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Court of Cook County, et al., No. 16-1783, 2016 WL 7228703, at *2 (7th Cir. 2016)
(citation omitted); see Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 850 (7th
Cir. 2008) (describing the direct and indirect methods of proving retaliation under
Title VII); Henderson v. McDonald, No. 15 C 4445, 2016 WL 7231606, at *2 (N.D.
Ill. Dec. 14, 2016). It held that: “‘convincing mosiac’ is not a legal test,” nor is it “a
legal requirement in an employment-discrimination case.” Ortiz, 834 F.3d at 764–65.
Instead, the legal standard “is simply whether the evidence would permit a reasonable
factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other
proscribed factor caused the discharge or other adverse employment action.” Id. at
765; see Memon v. W. Tech. Coll., No. 16-1814, 2016 WL 7228688, at *2 (7th Cir.
2016). However, Ortiz “does not undermine ‘[t]he burden-shifting framework created
by McDonnell Douglas.’” Hudson v. Miramed Revenue Grp., No. 15 C 4945, 2016
WL 6948374, at *4 (N.D. Ill. Nov. 26, 2016) (citation omitted). “McDonnell Douglas
identifies one pattern that the evidence might fit that would enable a reasonable juror
to find discrimination,” mainly, “evidence showing that the plaintiff belonged to a
protected class, met her employer’s legitimate expectations, suffered an adverse
employment action, and was similarly situated to other employees who were not
members of the protected class and who were treated better,” if “the defendant fails to
articulate a reasonable alternative explanation or the plaintiff shows that the
defendant’s . . . explanation is a pretext.” Zegarra v. John Crane, Inc., No. 15 C
1060, 2016 WL 6432587, at *7 (N.D. Ill. Oct. 31, 2016). However, “[a] district court
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must not limit its analysis to McDonnell Douglas,” but broadly examine whether “the
record contain[s] sufficient evidence to permit a reasonable fact finder to conclude
that retaliatory motive caused [one’s] discharge.” Id.; Lord v. High Voltage Software,
Inc., 839 F.3d 556, 563 (7th Cir. 2016). To survive summary judgment, thus, Donley
“must present evidence that, considered as a whole, would allow a reasonable juror to
conclude that [she] was discriminated against due to a protected characteristic,
suffering an adverse employment action.” Hudson, 2016 WL 6948374, at *5. Donley
has failed to meet her burden.
DISCUSSION
Stryker argues, relying on McDonnell Douglas, that it is entitled to judgment as
a matter of law because Donley has failed to: (i) “show that she was meeting Stryker’s
legitimate expectations at the time of her termination;” (ii) “offer any evidence that
she was treated less favorably than any similarly situated employee who did not
engage in statutorily protected activity;” and (iii) “present evidence that would call
into question Stryker’s legitimate reason for terminating her employment.” Donley
claims that Stryker ignores “the myriad issues of fact and reasonable inferences which
could easily lead to a verdict” in her favor. We disagree.
The evidence would not lead a reasonable fact finder to conclude that Donley’s
internal complaint of alleged sexual harassment caused her termination. “The mere
existence of a scintilla of evidence in support of” Donley’s position is “insufficient;
there must be evidence on which the jury could reasonably find for” Donley.
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Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (quoting Anderson, 477 U.S.
at 252); Dorsey v. Morgan Stanley, 507 F.3d 624, 628 (7th Cir. 2007) (“[I]nferences .
. . based on mere speculation . . . are insufficient to overcome summary judgment.”).
The undisputed material facts demonstrate that Stryker terminated Donley’s
employment because of her own drunken conduct in Vail, Stryker’s policies, and its
valued relationship with the CEO. In an attempt to survive summary judgment,
Donley argues four points, that: (i) it is disputed when Stryker learned of the events
that took place in Vail; (ii) the fact that the Manager received a severance agreement
at his termination while Donley did not is evidence of retaliation; (iii) the timing of
Donley’s termination establishes a causal link between her internal complaint and her
termination; and (iv) Stryker’s inability to clearly explain how Donley’s actions in
Vail violated its corporate policies demonstrates that its reason for her termination is
pretextual. The Court discusses each in turn below.
I.

When Stryker Learned of the Events in Vail
First, Stryker argues that it became aware of Donley’s conduct in Vail on

August 1, 2014, “between Donley’s late June 2014 internal complaint and her midAugust 2014 termination.” Thus, according to Stryker, “[t]his intervening event and
the outcome of Stryker’s subsequent investigation” led to Donley’s termination. See
Reid v. Neighborhood Assistance Corp. of Am., 749 F.3d 581, 589 (7th Cir. 2014)
(affirming summary judgment and stating that “plaintiffs’ termination was
immediately preceded by an intervening event unrelated to their complaints”).
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Donley, in contrast, contends that her internal complaint constitutes the “intervening
event” that led to her termination. Donley argues that Stryker knew “of the photos at
issue well before [Donley] made her internal complaint and months before she was
terminated.” The Court finds, based on the evidence of record, that when Stryker
learned of the photos does not create a dispute of material fact.
First, Donley cites to the position statement that Stryker “submitted to the
EEOC in January of 2015.” Donley claims that Stryker “admitted in the position
statement . . . that [Donley] showed the photos at issue to . . . Thompson on the night
she took them.” Stryker disputes this, arguing that the position statement merely
indicated that, during her exit interview, Schexnyder “told . . . Ferschweiler that . . .
[Schexnyder] was not the only person to whom [Donley] showed [a] video and the
photographs . . . . [she] also showed [them] to . . . Thompson[, who,] . . . like [others],
was unamused and advised [Donley] that she should delete the photos and video.”
Stryker also contends that Thompson did not read the position statement, and argues
that it is both immaterial and inadmissible. See McCoy v. WGN Cont’l Broad Co.,
957 F.2d 368, 373–74 (7th Cir. 1992) (“[T]his court is reluctant to give substantial
weight to a position taken in adversary proceedings before the Department [of Human
Services]. Myriad factors undoubtedly influence the positions taken in such a forum,
as opposed to federal court, including the opportunity and incentives for discovery
and thorough internal investigation. This court declines to bind ADEA defendants to
the positions they initially assert in state administrative proceedings.”).
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Second, Donley emphasizes the inconsistencies among Stryker’s testimony
regarding when it learned of the photos. Donley testified “that she showed . . .
Thompson the photos” on the night that she took them.

During Thompson’s

deposition, in contrast, he stated that “the first time [that he] learned about [the
photos] . . . was from one of [his] team members.” Donley also claims that Wise told
“Ferschweiler that [Donley] had shown the photos at issue to . . . Thompson on the
night she took them.” Donley similarly claims that it is disputed when Ferschweiler
learned of the photos. “Ferschweiler testified that she first learned of the photos
during [Schexnyder’s] exit interview on August 1, 2014.” But, at his deposition,
Thompson testified that he reported the photos to Ferschweiler, although he could not
remember exactly when. Thompson did, however, testify that the “conversation was
separate from the interviews [that] he had with” Ferschweiler “as part of her formal
investigation.”

Thus, Donley argues that “[t]his inconsistency in [Stryker’s]

testimony creates a genuine issue of material fact as to whether [Stryker] became
aware of [Donley’s] alleged misconduct before or after” her internal complaint.
Stryker argues that when it learned of the photos “is immaterial because it
ignores the undisputed fact that Thompson had no knowledge at the time of his
decision to terminate Donley” of her internal complaint.

Thus, Stryker reasons,

Thompson “could not possibly have had any retaliatory motive with respect to his
decision to terminate Donley.” Because of this fact, Donley’s argument misses the
mark. The exact moment at which Thompson first laid eyes on the photos, if he did,
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is not material because it is undisputed that at the moment of the decision to terminate
Donley’s employment, Thompson had no knowledge of Donley’s internal complaint,
the Manager’s alleged sexual harassment of another employee, or the reasons for his
subsequent termination. Thus, Donley’s internal complaint simply could not have
been Thompson’s motivation for her termination. Even assuming that Ferschweiler
and Thompson made the decision to terminate Donley’s employment together, which
Stryker disputes, according to Stryker, in addition to the undisputed fact that
Thompson lacked knowledge regarding Donley’s internal compliant, Donley has not
presented any “evidence that Ferschweiler harbored any retaliatory animus toward
Donley.” We agree. In fact, Donley conceded that no one “indicated that they had a
problem with the fact that she made a complaint.” Thus, whether Stryker learned of
the photos that Donley took before or after she filed her internal complaint is a
distinction without a difference.
II.

The Manager’s Severance Agreement
Next, relying on McDonnell Douglas, Stryker argues that Donley “was not

meeting Stryker’s legitimate expectations at the time of her termination” since it
“legitimately expects its employees to act with integrity towards its business
partners,” which does not include taking photos of an intoxicated CEO of one of
Stryker’s vendors in her hotel room. See, e.g., Bernier v. Morningstar, Inc., 495 F.3d
369, 376 (7th Cir. 2007) (“[A]n employee’s complaint of harassment does not
immunize h[er] from being subsequently . . . terminated for workplace behavior.”)
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(citation omitted). Moreover, Stryker claims that Donley “has not presented any
evidence that Stryker retained any other employee who engaged in conduct similar to
hers,” and she has not “attempted to identify any employee who was alleged treated
more favorably than her.” Here, Donley presents evidence that, at his termination,
Stryker offered the Manager a severance agreement amounting to nearly $30,000, and
she was not offered the same.
According to Stryker, the severance agreement was executed “in exchange for
strengthening the non-compete agreement that” the Manager “previously signed with
Stryker,” because he “was aware of and had access to a large amount of proprietary
information during his employment with Strkyer.”

Donley argues that “[t]he

severance agreement does not strengthen the non-compete agreement,” as “she, too,
had signed the same non-compete and also had substantial knowledge of [Stryker’s]
confidential and proprietary information.” Stryker maintains that the Manager and
Donley “were not similarly situated,” the Manager “occupied a more senior position
than Donley,” held a different job title, reported to different a superior, and they were
terminated for different conduct by different decisionmakers. See Burks v. Wis. Dep’t
of Transp., 464 F.3d 744, 751 (7th Cir. 2006) (“[F]or an individual to be similarly
situated to the plaintiff, the plaintiff must show that the individual is ‘directly
comparable to her in all material respects.’”) (citation omitted). Donley has failed to
demonstrate that she and the Manager were directly comparable.

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III.

Suspicious Timing
Third, Stryker argues that “Donley cannot establish a causal link between her

protected activity and her termination.”

“Even assuming [that the complaint] is

temporally proximate,” Stryker contends “that mere temporal proximity between
protected activity and an adverse employment action is not enough to establish a
genuine issue of material fact.”

Donley, in contrast, claims that “the timing of

[Stryker’s] decision to terminate [her] is sufficient to establish a causal link.” We
disagree.
Donley cites Casna v. City of Loves Park for the proposition that suspicious
timing alone is enough to create a triable issue of fact. However, Donley fails to
mention that the Court in Casna held that before it was an “extreme case.” 574 F.3d
420, 427 (7th Cir. 2009) (“[S]uspicious timing is rarely enough to create a triable
issue, . . . but in an extreme case like this, where the adverse impact comes ‘on the
heels’ of the protected activity, it is.”). Casna is different from the instant case, as in
Casna, “the Chief [of Police] recommended that Loves Park fire [plaintiff] the very
day after she complained to [the Chief’s secretary] about her hostility to [plaintiff’s]
hearing impairment.” Id. (emphasis added). Here, at least six weeks passed between
Donley’s internal complaint of sexual harassment and her termination. The case law
is clear: “suspicious timing alone rarely is sufficient to create a triable issue.” See,
e.g., Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 905 (7th Cir. 2005); Muhammad v.
Caterpillar, Inc., 767 F.3d 694, 701 (7th Cir. 2014) (“[W]e have repeatedly held that
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mere temporal proximity is rarely sufficient.”); Wyninger v. New Venture Gear, Inc.,
361 F.3d 965, 981 (7th Cir. 2004) (“‘[M]ere temporal proximity’ is not enough to
establish a genuine issue of material fact.”) (citation omitted).
IV.

Pretext
Finally, Stryker argues that it “had a legitimate, non-retaliatory reason for

terminating [Donley’s] employment,” which was “its determination that she had
behaved inappropriately toward the CEO,” and Donley “cannot show that this reason
was pretextual.” Donley argues that Stryker’s “inability to explain how [Donley]
violated . . . the policies cited in her termination letter would allow a jury to
reasonably infer that [Stryker’s] asserted justifications for her termination were false
and pretextual.” The Court agrees with Stryker.
According to Donley, during Thompson’s deposition, he “could not recall how
[Donley’s] conduct violated any of the” cited policies. Thus, Donley argues that since
“Thompson was a decision-maker in [Donley’s] termination and he signed her
termination letter which cited the policies at issue, his inability to explain the nature of
[Donley’s] policy violations suggests that [Donley] did not actually violate any policy
and that [Stryker’s] allegation that she did is pretextual.”

Not only does this

conclusion not logically follow, but it is also unsupported by the evidence. In his
deposition, Thompson stated that his “role is not to look at the exact policy numbers,”
and “the fact that there’s inappropriate images of a CEO of a company that [he does]
business with continually and will continue to do is . . . unacceptable.”
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Donley also contends that Ferschweiler could not “explain how [Donley’s]
alleged conduct violated” the Substance Abuse Policy, Policy Four, and that
Ferschweiler’s explanation of how Donley violated the Electronic Systems Policy,
Policy Seven, was “confusing.” Ferschweiler testified that Policy Four “relate[s] to a
safe work environment as well as endangering” Stryker’s reputation in the
community. She stated that Donley took “photos and videos of [the CEO] in a
compromising state and then showed them . . . to employees in a hotel bar,” which “is
not an environment that [Stryker] would ever subject” its employees or vendors to.
Ferschweiler also stated that taking the photos and “treat[ing] another person who was
attending a Stryker meeting in that manner is very damaging to Stryker.” Finally,
Ferschweiler testified that Donley’s conduct violated Policy Seven “because she used
her Stryker-issued phone to make offensive communications,” and the CEO could not
“give permission to have those photos taken and” shown to others.
In sum, Donley attempts to demonstrate pretext by arguing that Stryker was
unable to pigeonhole her termination into its corporate policies.

Relying on

immaterial inconsistencies, Donley argues that Stryker “bent over backwards to
falsely accuse [her] of violating a number of policies . . . to justify an otherwise
unjustified termination.” This is unpersuasive. It is not absurd that taking photos of
an intoxicated CEO in her hotel room at a work event will not fit neatly into a
violation of a corporate policy. Moreover, pretext is “more than just faulty reasoning
or mistaken judgment on the part of the employer; it is [a] lie, specifically a phony
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reason for some action.” Harden v. Marion Cty. Sheriff’s Dep’t, 799 F.3d 857, 864
(7th Cir. 2015) (citation omitted). “Stryker has consistently spoken with one voice
regarding the reason for Donley’s termination: she was terminated because she took
inappropriate images of the intoxicated CEO of a valued Stryker vendor in her hotel
room.” Cf. Gordon v. United Airlines, Inc., 246 F.3d 878, 886–87 (7th Cir. 2001).
These facts do not demonstrate pretext nor do they create a genuine dispute of
material fact.

Rather, the parties’ testimony, which demonstrates “that both

Thompson and Ferschweiler honestly believed that termination based on” conduct that
Donley “admitted to have engaged in,” along with Donley’s termination letter, which
“stated in part that the decision to terminate Donley’s employment was made as a
result of her inappropriate conduct and” poor judgment, supports the conclusion that
Stryker terminated Donley because she took photos of an intoxicated CEO at a work
event, staking the CEO’s reputation and that of the company.
Lastly, Donley emphasizes that the polices under which Stryker terminated her
employment “allowed for lesser discipline,” which leads Stryker to conclude that
“Donley’s argument is about whether the admitted conduct rose to the level of being
terminable, rather than about the honesty of Stryker’s explanation for her termination,
and thereby misses the point of the pretext inquiry.” We agree. See Argyropoulos v.
City of Alton, 539 F.3d 724, 737 (7th Cir. 2008) (“[T]o show pretext, [Donley] need[s]
to show not just that [Stryker] exercised poor judgment, but that it acted in bad faith,
i.e., dishonestly, when it . . . fired her.”). First, “Title VII does not prohibit employers
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from making [adverse] employment decisions based on that which an employee
considers to be a de minimis infraction.” Garrison v. Westat, Inc., No. 01 C 2918,
2002 WL 335452, at *4 (N.D. Ill. Mar. 1, 2002). Second, “courts do not sit as
superior personnel departments, second-guessing an employer’s facially legitimate
decisions.” Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003).
“Firing an employee for taking photos of the CEO of a valued business partner
while [she] is intoxicated in a hotel room is a legitimate reason to terminate
someone’s employment.” See Flores v. Preferred Technical Grp., 182 F.3d 512, 516
(7th Cir. 1999) (“[T]he more objectively reasonable a belief is, the more likely it will
seem that the belief was honestly held.”). Stryker met its initial burden “of showing
that no genuine issue of material fact exists.” Kellogg, 2015 WL 3930351, at *3. As
the nonmoving party, Donley failed to demonstrate “that a triable issue of fact
remains.” See id. Donley has not “produced enough evidence to permit a reasonable
jury to conclude that she suffered an adverse employment action because of her
protected activity.” See Griffin v. Chi. Hous. Auth., No. 14 C 2481, 2016 WL
6091390, at *5 n.9 (N.D. Ill. Oct. 19, 2016). The Court should not abandon its good
sense and sound judgment, and in this case, “[c]ommon sense suggests” that Donley’s
actions in Vail, rather than her internal complaint, “triggered the termination.” See
Argyropoulos, 539 F.3d at 736; Gordon v. United Airlines, Inc., 246 F.3d 878, 889
(7th Cir. 2001).

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CONCLUSION
For the foregoing reasons, the Court grants Stryker’s Motion for Summary
Judgment; dismisses Donley’s claims; terminates this action; and will enter
judgment in favor of Defendants. It is so ordered.

Dated: 1/6 /2017

_____________________________________
Charles P. Kocoras
United States District Judge

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