Rayford v. La Petite Academy, Inc.

Filing 63

MEMORANDUM Opinion and Order: Defendant's motion for summary judgment 53 is denied. A status hearing is set for July 8, 2021. The parties shall confer regarding the possibility of settlement and the scheduling of next steps, and they shall file a joint status report by July 6, 2021. Signed by the Honorable Jorge L. Alonso on 6/4/2021. Notice mailed by Judge's staff (lf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CATHERINE RAYFORD
Plaintiff,
v.
LA PETITE ACADEMY, INC.,
Defendants.

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No. 19 C 7877
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Plaintiff, Catherine Rayford, sues defendant, La Petite Academy, Inc. (“La Petite”) for
terminating her employment following her maternity leave. Plaintiff claims that, in doing so,
defendant discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., and the Illinois Human Rights Act, 775 ILCS 5/2-102(I), and retaliated
against her for exercise of her rights under the Family and Medical Leave Act (“FMLA”), 29
U.S.C. 2601. This case is before the Court on defendant’s motion for summary judgment pursuant
to Federal Rule of Civil Procedure 56. For the reasons set forth below, the motion is denied.
I.

Background
The following is the relevant factual background, viewing the facts in the light most

favorable to plaintiff (as the Court must at this stage). See Fish v. GreatBanc Tr. Co., 749 F.3d
671, 674 (7th Cir. 2014) (“We do not necessarily vouch for the objective accuracy of all factual
statements here, but defendants moved for summary judgment, which requires that we view the
evidence in this harsh light.”). La Petite is a national educational daycare company with locations
across the country, including one in Aurora, Illinois. Plaintiff came to work at La Petite’s Aurora
school in May 2012. In April 2016, she became the director of that site. As director, she was

responsible for managing the operations of the school and ensuring compliance with La Petite’s
policies and procedures, state licensing requirements, and other applicable regulations.
In January 2018, plaintiff began to report to a new district manager, Heather Sallay. Shortly
afterward, she told Sallay that she was pregnant. In July 2018, plaintiff requested FMLA leave
beginning in September, around the time her child was due to be born. On or about July 12, 2018,
plaintiff received a letter from the benefits department of La Petite’s parent company, Learning
Care Group (US) No. 2, Inc., approving her FMLA leave from September 11, 2018, to November
6, 2018.
Following the approval of plaintiff’s FMLA leave, plaintiff and Sallay discussed how the
school would cover plaintiff’s absence. At that time, Alexandria Gallagher was the site’s School
Education Manager, a position similar to an assistant director. Neither Sallay nor plaintiff was
confident that Gallagher was competent to fill in as an acting director while plaintiff was on leave.
Plaintiff testified at her deposition that she was “uneasy” about leaving the school if it meant
leaving it in Gallagher’s hands. (Pl.’s LR 56.1 Resp. ¶ 18, ECF No. 60.) Sallay was likewise
concerned (id.), and plaintiff testified that Sallay told her, “you leaving is not a good thing” (id. ¶
18). Based on these concerns, Sallay asked Jennifer Theobald to oversee operations at the Aurora
school while plaintiff was on leave. Theobald was the director of a La Petite school in nearby
Plainfield, Illinois, and she had previously assisted in covering for other directors on maternity
leave.
After plaintiff gave birth on September 7, 2018, she began her leave (a few days earlier
than planned). When Theobald began filling in at the Aurora school, she noticed several potentially
serious violations of La Petite policies. First, the infant classrooms were overenrolled. A May 8,
2017 letter from the Illinois Department of Children and Family Services (“DCFS”) listed the

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maximum capacity of Room 2, an “infant/toddler” classroom, as “8*.” Next to an asterisk at the
bottom of the page was a note: “Room 2 is limited to 4 infants due to the room[’]s square footage.”
(Id. ¶¶ 30-32; Def.’s LR 56.1 Stmt. Ex. 2, Pl.’s Dep. Ex. 9, ECF No. 54-1 at 217.) Plaintiff admits
that she overlooked the asterisk and accompanying note, and she mistakenly overenrolled the
infant rooms. Plaintiff and Sallay knew of this mistake prior to plaintiff’s maternity leave, and they
had a conversation about it. In consultation with another La Petite employee sent to help her sort
out the scheduling, plaintiff compensated for the error by rotating some of the older children
enrolled in the infant rooms into other rooms with excess capacity, so the number of children in
the infant rooms never exceeded the DCFS capacity limit on any particular day.
Next, Theobald discovered that children were bringing in outside food to eat during the
school day. A written La Petite policy prohibited children from bringing in outside food without a
written note from a physician explaining why the child could not eat the food La Petite provided
and what the child could or should eat instead. According to Theobald, the policy was rooted in
DCFS requirements and was to be strictly enforced. Theobald found that some children were
bringing in outside food without a doctor’s note, sometimes for no reason other than because they
preferred to eat their own food. On one occasion, she noticed a child eating food from McDonald’s.
Upon inquiring, Theobald was told that this was a regular practice for this child, and that plaintiff
had known about it. According to plaintiff, children had been bringing in their own meals with
doctor’s notes since before she became director. She recalls noticing that a child had brought in
McDonald’s once, and she told the child’s mother, “you probably shouldn’t be bringing in
McDonald’s,” but took no further action. (Def.’s LR 56.1 Stmt. Ex. 2, Pl.’s Dep. at 103:8-9.)
Theobald also found that staff were transporting children without proper authorization. For
one thing, she noticed an employee leaving the Aurora school at the end of a workday in her

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personal vehicle with one of the school’s students. Under La Petite policy, employees could not
transport students to or from school without obtaining authorization for after-hours babysitting
from the district manager and submitting an authorization form and other appropriate paperwork.
When Theobald asked Gallagher and another school employee whether this employee had
babysitting authorization paperwork on file, they told her that they did not know anything about
such paperwork. Plaintiff knew about this situation prior to her maternity leave, and she told the
employee that she should not be transporting the child and needed to find another arrangement,
but she took no other action.
Additionally, before an employee is permitted to transport children in a company-owned
bus or van, La Petite administrators must obtain a motor vehicle records check and seek clearance
from DCFS. Theobald found that only two of approximately six people who transported children
in company-owned buses or vans for the Aurora school had the requisite DCFS clearance
paperwork on file. Plaintiff admits that one driver did not have a proper clearance due to an error
plaintiff had made, submitting the DCFS clearance to the wrong place. However, according to
plaintiff, that driver was no longer actually driving students, nor were any uncleared drivers driving
students.
Finally, just prior to plaintiff’s maternity leave, plaintiff emailed Sallay for authorization
to offer a 20% discount to an employee known as Rebecca so that she could enroll her children in
the school. Sallay approved the discount, and Rebecca’s children began to attend the school.
However, the children were never entered into La Petite’s system, and Rebecca was never charged
any tuition at all. Plaintiff testified that Gallagher told her that she had entered Rebecca’s children
into the system; plaintiff admits that she did not go back and check.

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Shortly after plaintiff returned from maternity leave in November 2018, Sallay and plaintiff
met to discuss the policy violations Theobald had uncovered. Plaintiff was subsequently placed on
administrative leave. Sallay decided to terminate plaintiff for the “amount of policy violations”
that had occurred on her watch, as well as the “type of policy violations,” which included
“fraudulent” misconduct and mismanagement that would have put “children and the school at
risk.” (Def.’s LR 56.1 Stmt. Ex. 11, Sallay Dep. at 61:20-23, ECF No. 54-1 at 422.)
When asked at her deposition why she decided on termination rather than a warning or a
performance improvement plan, Sallay testified that it was because she believed plaintiff was
“aware that she was violating these policies” and the violations were “severe.” (Id., Ex. 11, at 62:37, 63:10-15.) Allowing Rebecca’s children to attend for free was a particularly “severe” violation,
Sallay explained, because it amounted to “committing fraud,” and protecting against “fraudulent
revenue loss” is one of a site director’s “main core job” functions. (Id., Ex. 11, at 62:3-7, 63:1015; see also id., Ex. 1, Sallay Decl. ¶¶ 14-15 (reciting the above-described policy violations 1 as
the reasons for terminating plaintiff’s employment and characterizing them as “commit[ing] fraud,
jeopardiz[ing] the Aurora School, and risk[ing] the safety of children.”)
II.

Legal Standards
“The Court shall grant summary judgment 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); Wackett v. City of Beaver Dam, 642 F.3d 578, 581 (7th Cir. 2011). A genuine dispute
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). The Court may not
In her declaration, in addition to the above-described policy violations, Sallay also suggests that plaintiff
gave Rebecca a higher-than-authorized discount. Plaintiff denies this, although she admits that she
mistakenly gave Gallagher a higher employee discount than she was entitled to at the time. (See Pl.’s LR
56.1 Resp. ¶¶ 48-49.)
1

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weigh conflicting evidence or make credibility determinations, but the party opposing summary
judgment must point to competent evidence that would be admissible at trial to demonstrate a
genuine dispute of material fact. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 705
(7th Cir. 2011); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). The court will enter
summary judgment against a party who does not “come forward with evidence that would
reasonably permit the finder of fact to find in [its] favor on a material question.” Modrowski v.
Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013). The Court construes all facts and draws all
reasonable inferences in favor of the nonmoving party. Chaib v. Geo Grp., Inc., 819 F.3d 337,
341 (7th Cir. 2016).
Title VII makes it “an unlawful employment practice for an employer . . . to . . . discharge
any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In other words, “Title VII prohibits
job-related actions that are motivated by intentional discrimination against employees, based on
protected employee statuses such as race or sex.” Ernst v. City of Chi., 837 F.3d 788, 794 (7th Cir.
2016).
The Pregnancy Discrimination Act amended Title VII to “clarify that pregnancy
discrimination is included in Title VII’s prohibition on sex discrimination.” Ilhardt v. Sara Lee
Corp., 118 F.3d 1151, 1154 (7th Cir. 1997). As amended by the Pregnancy Discrimination Act,
Title VII defines “the terms ‘because of sex’ or ‘on the basis of sex’” to include “because of or on
the basis of pregnancy, childbirth, or related medical conditions; and women affected by
pregnancy, childbirth, or related medical conditions shall be treated the same for all employmentrelated purposes.” 42 U.S.C. § 2000e(k). Similarly, the Illinois Human Rights Act makes it a “civil

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rights violation” for employers to discriminate against employees, including by deciding to
discharge them, “on the basis of pregnancy, childbirth, or medical or common conditions related
to pregnancy or childbirth.” 775 ILCS 5/2-102(I). “Both statutes . . . are interpreted in the same
manner.” Frey v. Hotel Coleman, 141 F. Supp. 3d 873, 879 n. 4 (N.D. Ill. 2015).
In assessing whether a Title VII claim survives summary judgment, “there is a single
inquiry,” McKinney v. Office of Sheriff of Whitley Cty., 866 F.3d 803, 807 (7th Cir. 2017), which
is “whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s . . .
sex . . . or other proscribed factor caused the discharge or other adverse employment action.” Ortiz
v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016); see id. at 764 (“[T]he sole question that
matters [is] [w]hether a reasonable juror could conclude that [the plaintiff] would have kept his
job if he had [not been a member of a protected class] and everything else had remained the
same.”). “However the plaintiff chooses to proceed,” i.e., whether he relies on direct or
circumstantial evidence or a combination of the two, “at the summary judgment stage the Court
must consider all admissible evidence to decide whether a reasonable jury could find that the
plaintiff suffered an adverse action because of her [sex or other protected trait].” Carson v. Lake
Cty., Ind., 865 F.3d 526, 533 (7th Cir. 2017); see David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508,
846 F.3d 216, 224 (7th Cir. 2017) (“In adjudicating a summary judgment motion, the question
remains: has the [plaintiff] produced sufficient evidence to support a jury verdict of intentional
discrimination?”).
The FMLA guarantees eligible employees of a covered employer the right to take unpaid
leave for a period of up to twelve weeks because of the birth of a child. See 26 U.S.C. §
2612(a)(1)(A). Upon return from FMLA leave, employees must be restored to the same position
or an equivalent one, with the same benefits and terms of employment. King v. Preferred Tech.

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Grp., 166 F.3d 887, 891-92 (7th Cir. 1999) (citing 26 U.S.C. § 2614(a)). It is unlawful for any
employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right
provided” by the FMLA. 26 U.S.C. § 2615(a)(1). The FMLA’s implementing regulations provide
that the FMLA’s “prohibition against interference prohibits an employer from discriminating or
retaliating against an employee . . . for having exercised or attempted to exercise FMLA rights.”
29 C.F.R. § 825.220(c). Further, “employers cannot use the taking of FMLA leave as a negative
factor in employment actions.” Id.
The Court generally “evaluate[s] a claim of FMLA retaliation the same way that [it] would
evaluate a claim of retaliation under other employment statutes, such as . . . Title VII.” Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). An FMLA plaintiff must adduce evidence
that “(1) he engaged in a protected activity; (2) his employer took an adverse employment action
against him; and (3) there is a causal connection between the protected activity and the adverse
employment action.” Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir. 2012). “To succeed on a
retaliation claim, the plaintiff does not need to prove that retaliation was the only reason for her
termination; she may establish an FMLA retaliation claim by showing that the protected conduct
was a substantial or motivating factor in the employer’s decision.” Goelzer v. Sheboygan Cty.,
Wis., 604 F.3d 987, 995 (7th Cir. 2010) (internal quotation marks omitted).
III.

Discussion
To determine whether plaintiff’s pregnancy discrimination and FMLA claims survive

summary judgment, the Court must consider the evidence as a whole to determine whether the full
evidentiary picture permits a reasonable inference that plaintiff’s sex, pregnancy, or maternity
leave caused defendant to treat plaintiff differently. See Ortiz, 834 F.3d at 765; Troupe v. May
Dep’t Stores Co., 20 F.3d 734, 737 (7th Cir. 1994). The Court asks whether a reasonable juror

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could conclude that plaintiff would have kept her job if she had never become pregnant or taken
maternity leave, but everything else had remained the same. See Ortiz, 834 F.3d at 764.
Plaintiff does not allege that she suffered any discriminatory treatment or adverse
employment action during her pregnancy, apart from Sallay’s comment that plaintiff’s upcoming
maternity leave was “not a good thing.” The adverse action she complains of is her termination
shortly after returning from maternity leave. 2
Defendant argues that a reasonable juror could not find in plaintiff’s favor based only on
the timing of her termination following her return from maternity leave, and, according to
defendant, plaintiff’s claims are based on nothing more than that timing. The Court takes this
argument in two parts, first considering the timing and then considering whether there is other
evidence that might support a jury verdict in plaintiff’s favor.
A. Suspicious Timing
Suspicious timing is rarely enough, by itself, to prove that an intent to discriminate or
retaliate caused an adverse employment action. See Silk v. Bd. of Trs., Moraine Valley Cmty. Coll.
Dist. No. 524, 795 F.3d 698, 710 (7th Cir. 2015). Timing alone may suffice to prove causation,
however, where the adverse action follows “close on the heels of a protected act.” Loudermilk v.
Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011). There is “no set legal rule for determining
Defendant does not argue that the fact that plaintiff was no longer pregnant at the time of the adverse
employment action defeats plaintiff’s claim of pregnancy discrimination. Because defendant does not make
the argument, the Court need not determine whether it would have succeeded, but it seems dubious:

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It is settled under Title VII that an employer may not discharge an employee based on the
categorical fact of her pregnancy. By the same token, since a short-term inability to work
is bound up with the very nature of pregnancy and childbirth, that disability is a pregnancyrelated condition within the meaning of 42 U.S.C. § 2000e(k), and Title VII thus prohibits
an employer from dismissing an employee in retaliation for taking an authorized maternity
leave.
Smith v. F.W. Morse & Co., 76 F.3d 413, 424 (1st Cir. 1996) (internal case citations omitted).

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whether an adverse employment action falls ‘close on the heels’ of protected activity because such
a determination ‘depends on context.’” Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012)
(citing Loudermilk, 636 F.3d at 315). “The closer [the] two events are, the more likely that the first
caused the second.” Loudermilk, 636 F.3d at 315. Generally, for suspicious timing alone to permit
an inference of causation, the adverse action must come within days of the protected activity. See
Kidwell, 679 F.3d at 966-67 (citing cases). If there is other evidence supporting the inference, the
timing of the adverse action may be suspicious even if it comes a few weeks or even longer after
the protected activity, depending on context. See Coleman v. Donahoe, 667 F.3d 835, 860-62 (7th
Cir. 2012).
Defendant argues that the timing here is not suspicious because defendant knew of
plaintiff’s pregnancy and of her intention to take maternity leave months before she even began
her leave, let alone returned from it, and it was only after plaintiff returned to work that she suffered
any adverse action. But the Court does not agree that the adverse action had to be close in time to
plaintiff’s initial request for maternity leave to be suspicious. Defendant does not cite any authority
for that proposition, and, at least as it would apply to this case, it strikes the Court as inconsistent
with the Seventh Circuit’s context-based approach to suspicious timing. See Loudermilk, 636 F.3d
at 315.
Courts have used various different measures of timing to assess whether an adverse action
is suspiciously timed in relation to a protected leave, and at least three circuits have measured the
time between the expiration of the employee’s protected leave and the adverse action, rather than
the time between the employee’s request for leave and the adverse action. See Jones v. Gulf Coast
Health Care of Delaware, LLC, 854 F.3d 1261, 1272 (11th Cir. 2017) (citing Judge v. Landscape
Forms, Inc., 592 F. App’x 403, 410 (6th Cir. 2014), and Amsel v. Texas Water Dev. Bd., 464 F.

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App’x 395, 401 (5th Cir. 2012)); contra Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir.
2012). In a recent decision, a district court in this circuit has suggested that courts need not assume
that only one approach or the other is correct: an adverse action might closely follow a request for
protected leave; and another adverse action might closely follow the taking of protected leave; and
the timing might be equally suspicious in both cases, because in both cases the adverse action
closely follows protected activity. See Applewhite v. Deere & Co., Inc., No. 18 CV 4106, 2020
WL 7029889, at *22 (C.D. Ill. Nov. 30, 2020).
The Court finds the Applewhite court’s approach apt, given the Seventh Circuit’s emphasis
on context in assessing whether timing is suspicious. Following that approach, the Court considers
the timing here very suspicious indeed because the adverse action came “close on the heels of a
protected act,” i.e., taking maternity leave. See Loudermilk, 636 F.3d at 315; Kidwell, 679 F.3d at
966.
In support of its position, defendant cites two cases, Cracco v. Vitran Express, Inc., 559
F.3d 625, 634 (7th Cir. 2009), and Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799, 806
(7th Cir. 2001), which stand for the proposition that “the fact that the leave permitted the employer
to discover the problems cannot logically be a bar to the employer’s ability to fire [a] deficient
employee.” Kohls, 259 F.3d at 806. That proposition does not aid defendant because, considering
the course of events here in their full context, the fact that the adverse action came at the conclusion
of plaintiff’s maternity leave rather than at the time plaintiff requested it does not make the timing
less suspicious. This is because, as the Court will explain in more detail below, the evidence is
susceptible of the interpretation that “the employer lay in wait for an employee who had [engaged
in protected activity], firing [her] as soon as a plausible pretext presented itself.” See Lawton v.

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Weil Foot & Ankle Inst., LLC, No. 17 CV 00297, 2021 WL 492899, at *4 (N.D. Ill. Feb. 10, 2021)
(citing, inter alia, Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 n.6 (7th Cir. 1996)).
B. Other Evidence
In addition to suspicious timing, other types of circumstantial evidence that may support
an inference of discriminatory or retaliatory intent include “ambiguous statements” and “evidence
that the employer offered a pretextual reason for an adverse employment action.” Coleman, 667
F.3d at 860. The Seventh Circuit has recognized that, where the evidence of suspicious timing is
not strong enough alone to get the plaintiff over the summary judgment hump, combining it with
evidence of pretext may create a genuine issue of fact. See Coleman, 667 F.3d at 860-62; see also
Haworth v. Round Lake Area Sch., Cmty. Unit Sch. Dist. 116, No. 17 C 7038, 2019 WL 3080928,
at *6-8 (N.D. Ill. July 15, 2019).
To demonstrate that an employer’s given reason for an adverse employment action was a
pretext for an unlawful motive, an employee must demonstrate not just “faulty reasoning or
mistaken judgment on the part of the employer,” but that the employer’s reason is a “lie,
specifically a phony reason” for the adverse employment action. Tibbs v. Admin. Office of the Ill.
Courts, 860 F.3d 502, 506 (7th Cir. 2017) (internal quotations marks omitted). The employee may
make the requisite showing by, for example, pointing to evidence that the proffered reason is
“factually baseless” or “insufficient to motivate” the employer’s action. Id. (internal quotations
marks omitted). Just as context is essential to determining whether the timing of an adverse action
is suspicious, context is “essential to determine whether an employer’s explanation is fishy enough
to support an inference that the real reason must be discriminatory.” Loudermilk, 636 F.3d at 315;
see id. (“The Civil Rights Act of 1964 does not require employers to have just cause for sacking a

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worker, but an employer who advances a fishy reason takes the risk that disbelief of the reason
will support an inference that it is a pretext for discrimination.”).
Plaintiff argues that defendant’s reasons for terminating her were pretextual because they
were insufficient to motivate her termination. In assessing plaintiff’s argument, the Court is
mindful that it “does not sit as a super-personnel department, second-guessing an employer’s
business decision as to whether someone should be fired.” Coleman, 667 F.3d at 862 (internal
quotation marks omitted). But it is equally mindful that “the persuasiveness of the defendant’s
explanation is normally for the finder of fact to assess, unless the court can say without reservation
that a reasonable finder of fact would be compelled to credit the employer’s case on this
point.” Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir. 2005) (internal quotation marks
omitted). District courts should grant summary judgment only “if the defendant presents
unrebutted evidence that he would have taken the adverse employment action against the plaintiff”
even if the plaintiff had not engaged in protected activity. Id.
Here, the Court is hard-pressed to say that a finder of fact would be “compelled to credit
the employer’s case on this point.” Id. (emphasis added). The trouble is that the evidence does not
establish any compelling reasons why defendant took the drastic step of firing plaintiff, instead of
taking some lesser disciplinary action against her. When asked that question at her deposition,
Sallay answered that she fired plaintiff because plaintiff “was aware that she was violating
policies.” (Sallay Dep. at 62:3-7, 63:10-15.) But plaintiff claims that she did not knowingly commit
any of the policy violations defendant has cited as its reasons for terminating her, nor did she
condone them; in fact, she tried to correct those that she knew about. Her position is that (1) she
misread the DCFS letter stating the capacity of the infant rooms, overenrolled them by accident,
and she was handling the situation by rotating children out of the infant rooms and into rooms with

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excess capacity; (2) she knew of one employee who was transporting a student, and she told the
employee to stop doing it; (3) she did not permit students to bring in food without a doctor’s note,
and when she saw a parent bring in McDonald’s, she told the parent that she shouldn’t be doing
that; (4) she believed only one of her drivers did not have the requisite DCFS clearance, and that
driver was no longer driving students; and (5) she believed Gallagher had input Rebecca’s children
into the system because Gallagher told her she had. (Cf. Sallay Decl. ¶¶ 14-15.) Further, plaintiff
claims that Sallay knew of at least some of these issues (particularly the infant room issue) before
plaintiff went on maternity leave. (See Pl.’s Dep. at 142:17-21.) A reasonable juror could believe
plaintiff and conclude that, contrary to what Sallay had said, plaintiff did not knowingly flout
policies. If not, that juror could conclude that plaintiff’s misconduct was insufficient to motivate
the decision to terminate her. Scheidt v. Floor Covering Assocs., Inc., No. 16-CV-5999, 2018 WL
4679582, at *11 (N.D. Ill. Sept. 28, 2018) (“Defendant may of course present its policies to the
trier of fact . . . . It will be for the trier of fact to determine whether all the evidence together
indicates that Defendant’s claimed reason for terminating Plaintiff was a pretext.”); Taylor v.
Metro. Water Reclamation Dist. of Greater Chi., No. 15-CV-7855, 2020 WL 1503642, at *12
(N.D. Ill. Mar. 30, 2020) (denying summary judgment where there were factual disputes over the
basis for the plaintiff’s termination).
The Court is unable to say that no reasonable juror would find it fishy that defendant would
fire an employee with an unblemished record for what amounted to bureaucratic missteps that,
while perhaps serious, had not yet caused any tangible or irreparable harm. That these missteps
were serious enough to warrant termination rather than lesser discipline was apparently a
subjective decision of Sallay’s, and when an employer relies on subjective criteria, it leaves itself
vulnerable to a factfinder’s inference that its given reason for the decision was a pretext for an

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unlawful motive. See Guinto v. Exelon Generation Co., LLC, 341 F. App’x 240, 246 (7th Cir.
2009) (citing Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 727 (7th Cir. 2005), Giacoletto v.
Amax Zinc Co., 954 F.2d 424, 427-28 (7th Cir. 1992), and Bell v. EPA, 232 F.3d 546, 551-52 (7th
Cir. 2000)).
Finally, there is one other piece of circumstantial evidence supporting an inference that
defendant acted with discriminatory or retaliatory intent: plaintiff has testified that Sallay was
displeased about having to find cover for plaintiff’s maternity leave, telling her that “you leaving
is not a good thing.” (Pl.’s LR 56.1 Resp. ¶ 18.) Combining this detail with the evidence of
suspicious timing and pretext, a reasonable jury could conclude that the evidence, considered as a
whole, is fishy enough to support an inference of discrimination or retaliation. See Owens v. Chi.
Bd. of Educ., 867 F.3d 814, 816 (7th Cir. 2017); Applewhite, 2020 WL 7029889, at *22.
The Court acknowledges that it may be that plaintiff did not knowingly violate company
policy or connive at staff members’ violations of policy, and that Sallay’s decision to fire her was
not infected by discriminatory or retaliatory intent: it might also be that Sallay genuinely but
mistakenly believed that plaintiff knowingly violated company policy. If so, then defendant wins
this lawsuit. See Culver, 416 F.3d at 547 (“[T]he issue before us is not whether an employer’s
evaluation of the employee was correct but whether it was honestly believed.”). But there is a
genuine material factual dispute over the reason for plaintiff’s termination, and a jury trial, not
summary judgment, is the way to determine whom to believe.
CONCLUSION
Defendant’s motion for summary judgment [53] is denied. A status hearing is set for July
8, 2021. The parties shall confer regarding the possibility of settlement and the scheduling of next
steps, and they shall file a joint status report by July 6, 2021.

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SO ORDERED.

ENTERED: June 4, 2021

______________________
HON. JORGE ALONSO
United States District Judge

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