Graesslin, Pamela v. Duluth Trading Company, LLC

Filing 47

ORDER DENYING defendant Duluth Trading Company's motion for summary judgment.. Signed by District Judge William M. Conley on 5/22/2015. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

PAMELA GRAESSLIN,

v.

Plaintiff,

DULUTH TRADING COMPANY,

OPINION & ORDER
14-cv-359-wmc

Defendant.
Plaintiff Pamela Graesslin was diagnosed with cancer in June of 2012. Later that
same month, Graesslin told her employer, defendant Duluth Trading Company (“DTC”), of
her condition.

About a year later, following multiple surgeries, Graesslin was abruptly

terminated as part of a purported “restructuring” of the company, although only her
position appeared to have changed and she alone lost her job. On May 19, 2014, Graesslin
brought this lawsuit under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101,
as amended by the Americans with Disabilities Act Amendments of 2008, alleging that she
was terminated because of her cancer. 1
In its motion for summary judgment (dkt. #10), DTC admits that Graesslin was a
qualified individual with a disability but contends that she was terminated for legitimate,
non-discriminatory reasons.

In this opinion, the court outlines the genuine disputes of

material fact that remain for trial with respect to whether Graesslin’s cancer was a but-for
cause of her termination, including steps apparently taken by her immediate supervisor to
reduce Graesslin’s involvement in important decisions and meetings shortly after her cancer

Graesslin filed a charge of discrimination against DTC on November 8, 2013. On or about March
11, 2014, the Equal Employment Opportunity Commission issued her a Right-to-Sue letter.
(Compl. (dkt. #1) ¶ 5.)

1

was disclosed and (2) recruit her replacement within five months of the disclosure. Because
the resolution of these factual disputes in Graesslin’s favor may be enough to establish the
requisite causal link between her cancer and her termination, the court will deny DTC’s
motion.

UNDISPUTED FACTS
I. Preliminary Matter
DTC filed its proposed findings of fact as required by this court’s procedures to be
followed on motions for summary judgment. (Dkt. #12.) Graesslin responded to those
proposed findings (dkt. #19) and submitted her own statement of additional facts (dkt.
##20, 21), although her responses leave something to be desired, as they cite extensively to
her own statement of facts, rather than clearly identifying each asserted dispute and
supporting it with admissible evidence. Far more egregiously, DTC then failed to respond
in any way to Graesslin’s statement of additional facts, even though DTC was expressly
required to file its response to those factsat the same time as its reply pursuant to the
court’s summary judgment procedures. Moreover, this failure leads (if not compels) the
court to conclude that these additional facts are undisputed.

(See Prelim. Pretrial

Conference Order (dkt. #7) ECF 13-15.)
The Seventh Circuit has “consistently and repeatedly upheld a district court’s
discretion to require strict compliance with its local rules governing summary judgment.”
Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Accordingly, the
court will consider Graesslin’s additional proposed facts to be undisputed so long as they are
proper factual statements supported by admissible evidence and so long as they do not
2

directly conflict with DTC’s own proposed findings of fact. With that in mind, the court
finds the following facts to be material and undisputed except as noted.
II. The Parties
Defendant, The Duluth Trading Company, or “DTC,” is a seller of rugged and
durable work clothes at its retail stores and outlet stores, as well as online. Mark DeOrio is
DTC’s Chief Financial Officer and Senior Vice President of Operations.
Plaintiff, Pamela Graesslin, is a fifty-nine-year-old resident of Barneveld, Wisconsin.
She

has

over

thirty

years

of

management

experience

in

the

manufacturing,

telecommunications and retail industries, including some experience at another clothing
retailer, Lands’ End.
III. Graesslin’s Early Employment
In December of 2007, Graesslin was offered and accepted the position of Call Center
Manager at DTC, with a start date of January 2, 2008. In that position, Graesslin was
responsible for managing the call center located in Belleville, Wisconsin, including:

(a)

staffing, scheduling and supervising all call center employees; (b) budgeting call center
activities; and (c) ensuring the effectiveness of customer interactions with the call center.
Originally, Graesslin reported to Daniel Moeller, then the Director of Operations.
As Call Center Manager, Graesslin also oversaw the growth of the Call Center from
about twenty or thirty employees to more than seventy employees and directed a threeperson management team consisting of Kate Carpenter, Faith Feldman and Nancy Vodak.
Additionally, Graesslin avers that she led efforts to improve DTC’s customer experience and
developed new metrics to track various key performance indicators for individuals and the
3

Call Center as a whole. By 2010 or 2011, DTC had renamed the “Call Center” to the
“Contact Center” to reflect its modernized and expanded focus on customer communication
and satisfaction. 2
On February 3, 2012, after Moeller left DTC, DeOrio took over as Graesslin’s
immediate supervisor and began to have one-on-one meetings with her to discuss ideas for
improving DTC’s “customer experience” and moving from a quantitative to a qualitative
approach to customer feedback.

DeOrio told Graesslin that he agreed with and would

support her efforts. As a result, Graesslin was able to implement numerous changes and
initiatives.
For example, Graesslin and her team planned to implement an “After Call Survey,”
which would allow them to better track and manage immediate customer feedback about
product quality, pricing, shipping, agent interaction, ease of website use and related issues.
Graesslin also directed the setup of focus groups that used agents to survey customers about
problems with ordering online and provided that information to the web team.
Additionally, Graesslin oversaw service from, and DTC’s relationship with, a third-party call
center located in Atlanta, Georgia, and she worked with DTC’s social media consultant to
better manage and assess customer internet responses.
In March of 2012, DeOrio provided Graesslin with a 2011 performance review,
which was positive overall and stated in part: “Pam, there are many exciting opportunities
for Customer Care in 2012 and beyond. I look forward to pursuing those with you.” In
April 2012, DeOrio also asked Graesslin to participate in a two-day strategic planning/teamGiven the lack of any clear distinction in the current record between the pre-2010 “Call Center”
and the later named “Contact Center,” the court refers to this division of DTC simply as the “call
center.”
2

4

building meeting with the Senior Management team. None of the participants expressed
any concerns about Graesslin, her qualifications or her capabilities.

In fact, before her

cancer diagnosis, no member of DTC’s management, including DeOrio, had ever expressed
any concerns or doubts to Graesslin about her qualifications, capabilities or skills related to
customer service, customer experience or her ability to direct or participate in that function.
IV. Graesslin’s Cancer Diagnosis and First Surgery
On Thursday, June 21, 2012, a cancerous tumor was detected in Graesslin’s small
intestine, and she was admitted to the hospital immediately for tests.

The following

Monday, June 25, she returned to work and informed DeOrio and Helen Linder, the
Director of Human Resources, that she had a tumor that would require at least one surgery,
as well as a spot on her liver. Although her prognosis was uncertain, Graesslin told DeOrio
and Linder that she was fully dedicated to DTC and intended to continue working there
while missing as little work as possible.
After informing DeOrio and Linder of her cancer, Graesslin was never again invited
to attend meetings with the Senior Management team, and her inquiries to Linder and
DeOrio about attending future meetings garnered no response.

Between late June and

September of 2012, Graesslin took approved, intermittent FMLA time for cancer-related
medical appointments. Graesslin claims she kept DeOrio fully apprised of her situation,
although DeOrio has averred that Graesslin shared little about her condition and that he
“respected her privacy.” (Compare Def.’s PFOF (dkt. #12) ¶¶ 16-18, with Pl.’s PFOF (dkt.
#20) ¶¶ 29-30.) At the time Graesslin worked at DTC, DeOrio was not aware that cancer
was a covered disability under the ADA.

(Mark DeOrio Dep. (dkt. #16) 148:17-20.)
5

While Linder had never received training or instruction on anti-discrimination issues, she
knew cancer was a protected condition.
On September 6, Graesslin underwent surgery to remove the tumor and over
fourteen inches of her small intestine, portions of the right side of her colon, and her
appendix, all of which affected her digestive and bowel functions. During her recovery,
Graesslin continued to work with her staff via e-mail and telephone, and although her
surgeon had originally envisioned her missing six weeks, she also managed to return to work
after four weeks, on October 8. Graesslin then worked for a week before taking a preplanned vacation with her husband. She had lost between twenty and twenty-five pounds.
In prior years, business unit leaders, including Graesslin, had presented their plans
for handling “peak season” activities to DTC’s Executive Team. When Graesslin inquired
about her upcoming presentations for late fall 2012 and spring 2013, however, DeOrio
indicated that he would be presenting on behalf of the Contact Center.

DeOrio never

provided Graesslin with any of the follow-up information she requested about those
presentations.
V. Changes in the Retail World
A. Omni-Channel Retailing
DTC’s business, and the retail world more generally, have evolved quickly and
dramatically since DTC opened its first brick-and-mortar retail store in 2010.

Retail

customers are no longer satisfied making a binary choice between a brick-and-mortar store
experience and an online experience.

Rather, they increasingly combine a number of

channels to complete their shopping experience in a way they find most satisfying.
Customers that combine a variety of channels in their shopping, buying, returning and
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exchanging behaviors are known as “Omni-channel customers.” Retailers who strive to meet
or exceed their customers’ Omni-channel expectations are known as “Omni-channel
retailers.” The rewards for successfully executing an Omni-channel retail platform are
substantial. For instance, industry studies indicate that Omni-channel retail customers are
more loyal and tend to spend more than other customers.
Because of the rise of Omni-channel retailing and customers, the call center’s role in
DTC’s business has changed.

Online customers now represent more than 70% of total

company sales and are increasingly able to navigate websites without assistance. As a result,
they have come to expect a “self-service” experience that requires no telephone interactions.
While DTC continues to accept telephone orders and e-mails from customers, this means
that the customer contacts through the call center are growing at a significantly slower pace
than the company’s overall sales. For instance, total call center contacts for calendar year
2014 were expected to grow by only 15% over 2013, while the company’s sales were
expected to grow by more than 30% over the same period.

Likewise, total call center

contacts are expected to grow by approximately 19% in calendar year 2015, as compared to
2014, while the company’s sales are expected to grow by approximately 35% during that
period. This disparity in growth rates has existed for the past few years and is expected to
continue in the future. 3
Likewise, the role of printed catalogues continues to decrease year after year, both for
DTC and other retailers generally.

For calendar year 2015, catalogue circulation is

The record leaves much to be desired in assessing the real significance, if any, of disparity in growth
between traditional contacts and sales. As an example only, because there is no disclosure of how it
compares to DTC’s, or for that matter, the industry’s historic growth rates, it is conceivable the
growth in sales has regularly exceeded the growth in customer contacts for no other reason than that
existing customers have increased unassisted purchases, at least in terms of dollars spent.
3

7

budgeted to increase by 14% and catalogue spending by 16%, while sales are expected to
grow by 35%. 4
Not surprisingly, given these apparent changes in the retail market, and in light of
the rewards associated with a successful Omni-channel retail platform, DTC determined
several years ago that to continue to thrive, it would need to become excellent in all aspects
of Omni-channel retailing. DTC recognized that this would require it to create and deliver
a consistently outstanding customer experience wherever a customer elected to do business
with it and instituted “aggressive” plans to maximize the customer relationship across every
channel, including catalogue, website and retail sales.
B. Creation of the Director of Customer Experience Position
To accomplish its plans, DTC claims it needed one highly-capable person, the
“Director of Customer Experience,” responsible for all aspects of the customer experience. 5
DTC envisioned that this person would be responsible for maximizing the customer
experience across all channels; managing the interrelationship of all channels; and leading
the e-commerce team in improving the online customer experience. Thus, the Director of
Customer Experience position would subsume all the duties of the traditional Call Center
Manager position, in addition to taking on additional duties deemed crucial to DTC’s goal
of furthering its standing as an Omni-channel retailer.

Again, without more historic data, it is difficult to interpret or extrapolate how meaningful this
trend may or may not be in terms of the importance of catalogues going forward. For example only,
if increasingly unimportant, why are catalogue expenses increasing at all?
4

There was no formal “Director of Customer Experience” position in existence at DTC during
Graesslin’s employment.

5

8

DTC maintains that in its assessment, Graesslin was not qualified to take on a
number of the duties assigned to this new position. The details of those duties appear in
DeOrio’s affidavit and include designing and implementing a Home Agent program,
working with outside third-party providers to implement customer experience procedures,
and directing staff handling all aspects of customer experience. (Mark DeOrio Aff. (dkt.
#13) ¶¶ 53(a)-(i).) According to DTC, none of the new duties were previously part of
Graesslin’s responsibilities as Call Center Manager: her duties were less complex, and she
was primarily responsible for managing the customer service telephone operatives in the
Belleville office.

Graesslin disputes that characterization, arguing that she was already

unofficially performing many of the ostensibly “new” duties, including through her work
with DTC’s Director of e-Commerce in connection with testing of e-commerce site updates
and providing customer feedback.
DTC decided to move forward with the Omni-channel implementation plan in April
of 2013. As part of that implementation, DTC decided to fill the new Director position
with Joan Conlin. Conlin is highly qualified and a well-respected individual in the industry.
Before joining DTC, Conlin had worked roughly thirty years for Lands’ End, a major online
and telephone clothing distributor. She served as Lands’ End Vice President of Customer
Sales & Service from 2005 to 2013. She retired in 2013.
The parties dispute when employment discussions began between DTC and Conlin.
Conlin either contacted DTC’s Chief Operating Officer and President, Stephanie Pugliese,
in early 2013 to express her interest in working for DTC should a position become
available, or Pugliese approached Conlin about possible employment in December of 2012.
Regardless, after several meetings with management to discuss Conlin’s experience and
9

vision, including a meeting in March of 2013 at Eno Vino restaurant in Middleton and two
meetings at restaurants in April of 2013, DTC decided to hire her on May 17, 2013. No
one else interviewed for the job, nor were any other individuals offered the position.
VI. Graesslin’s Performance Review and FMLA Leave
On or about March 9, 2013, DeOrio gave Graesslin her 2012 performance review.
For the first time since Graesslin started work at DTC, the performance review contained
criticism about Graesslin’s “poor morale” and “lack of sense of urgency.” 6 DeOrio had
never previously raised any of these concerns with Graesslin, either at any of his weekly
visits to the Contact Center or during any of their one-on-one meetings.

The 2012

performance review also failed to mention any of Graesslin’s customer experience initiatives
or accomplishments.
On March 27, Graesslin was required to undergo a liver ablation procedure, for
which she had to miss five days of work without pay. Graesslin requested FMLA leave from
March 27 through April 2, 2013, for what DeOrio understood to be necessary surgery
related to her cancer diagnosis. The company readily granted that leave. Upon her return
to work on April 3, Graesslin provided the human resources department with a fitness for
duty certification, in which her treating physician asked that she be allowed to fulfill her

Graesslin characterizes this criticism as “unfair and inaccurate (if not completely false),” but the
only record support is her own affidavit. A plaintiff’s own evaluation of her work cannot be imputed
to her employer and, without supporting facts, is not “evidence” sufficient to combat summary
judgment. See Dickerson v. Bd. of Trustees of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 603 (7th Cir.
2011). Likewise, Graesslin attributes the criticism to her having missed work in the fall of 2012, but
she offers no evidence to support any such causal link. See Jordan v. Summers, 205 F.3d 337, 343-44
(7th Cir. 2000) (“But without supporting facts or explanatory details, this ‘perception’ [of
discriminatory ‘grooming’] is merely speculation regarding Customs’s motives and cannot defeat
summary judgment.”). In any event, it has little bearing on the motion for summary judgment, since
the parties agree that this negative performance review was not the basis for Graesslin’s eventual
termination.
6

10

work day at her discretion of four to eight hours per day between April 3 and 5, due to postablation syndrome.

That same day, the human resources department acknowledged

Graesslin’s fitness for duty and restrictions by e-mail and granted them without hesitation.
Graesslin ended up taking partial FMLA leave days on April 3, 4 and 5.

The

following Monday, April 8, she returned to work without restriction. She did not request
any additional FMLA leave after April 8.
Graesslin avers that around this same time, DeOrio became increasingly evasive
when she tried to engage him in discussions, and that he began visiting the Contact Center
at irregular times, although she provides no additional specifics. DeOrio has averred that as
far as he knew, Graesslin was “perfectly healthy” after she returned from surgery. (Def.’s
PFOF (dkt. #12) ¶ 19.) It is undisputed, however, that Graesslin never told him any such
thing. In fact, Graesslin avers she kept him informed about her condition and told him that
her cancer had actually metastasized to her liver. (Pl.’s PFOF (dkt. #20) ¶¶ 29-30.)
VII.

Graesslin’s Termination
Once Conlin accepted DTC’s offer, DTC was in a position to eliminate the Call

Center Manager position. Due to inconsistencies in defendants’ evidentiary materials, it is
unclear: (1) when the decision was made to terminate Graesslin; and (2) who actually made
that decision. DTC’s answers to Graesslin’s first set of interrogatories indicate that DeOrio,
Linder and Pugliese held a conference on June 10, 2013, at which time they made the
decision to terminate Graesslin.

In contrast, DeOrio testified at his deposition that he

recommended termination “sometime” in the month after May 17, then he got the approval
of Pugliese and Steve Schlecht. DeOrio also testified that Linder and he consulted with
11

corporation counsel before terminating Graesslin (DeOrio Dep. (dkt. #16) 149:9-22), but
Linder denied having taken part in any such conversation or knowing that it occurred
(Helen M. Linder Dep. (dkt. #15) 43:21-25).
Graesslin had an exit interview on July 2, 2013, which was attended by DeOrio and
Linder. 7 Based on the facts of record, she does not seem to have had any warning of the
impending termination before it occurred.
At the meeting, DeOrio informed Graesslin that her position was being eliminated.
The parties dispute the substance of that conversation.

According to DTC, DeOrio

informed Graesslin that the company was restructuring and hiring Conlin, and Graesslin
acknowledged she knew of Conlin and was aware of her outstanding work and reputation.
Graesslin, on the other hand, avers she was informed only that the company was going in a
“new direction,” even when she asked for more information, and she denies having
discussed Conlin’s reputation or qualifications with DeOrio.
After receiving the news, Graesslin asked if she could inform her direct reports that
she was leaving. DeOrio gave her permission to do so and accompanied her during those
conversations. The parties agree she remained relatively positive and professional.
Although DTC characterizes Graesslin’s termination as a company “restructuring,” it
is undisputed that Graesslin was the only DTC employee to lose her position. No reduction
in force or downsizing took place.

Graesslin disputes that this meeting was an “exit interview” and characterizes it as an abrupt,
unexpected termination at a pre-scheduled meeting.
7

12

VIII. Conlin’s Employment and Job Duties
Conlin began work at DTC on July 8, 2013. She moved into Graesslin’s former
office in the Contact Center, took over the supervision of the same staff and Management
Team, and assumed Graesslin’s former job duties.

She also performs certain additional

duties, including overseeing all customer experience in every channel. Conlin claims that
those additional duties account for 50% to 60% of her time at work. (Joan Conlin Dep.
(dkt. #14) 20:6-13.)

Her “self-assessment,” in which she listed her accomplishments,

contains few references to those additional duties, however, and Conlin agreed during her
deposition that far less than half of her listed accomplishments pertain to these additional
duties. (Id. at 86:13-24.)

OPINION
Summary judgment is appropriate if the moving party “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). In ruling on a motion for summary judgment, the court views
all facts and draws all inferences in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Majors v. Gen. Elec. Co., 714 F.3d
527, 532 (7th Cir. 2013) (“no special summary judgment standard applies” to employment
cases).

“Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S.
at 248.
The party moving for summary judgment bears the initial burden of informing the
district court of the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
13

Once the initial burden is met, for an issue on which the nonmoving party will bear the
burden of proof at trial, the nonmoving party must “go beyond the pleadings” and
“designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal
quotation marks omitted).

It is not sufficient to “simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, the nonmoving party must produce “evidence . . . such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248. If he fails to do so, “[t]he moving party is ‘entitled to a judgment as a matter of
law.’” Celotex, 477 U.S. at 323.
Graesslin’s claim is for discrimination under the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101, as amended by the Americans with Disabilities Act Amendments
of 2008 (“ADAAA”). Under the ADAAA, “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to . . . the hiring, advancement, or
discharge of employees[.]” 8 42 U.S.C. § 12112(a). To prevail on an ADA discrimination
claim, Graesslin must show: (1) she is disabled; (2) she is able to perform the essential
functions of the job either with or without reasonable accommodation; and (3) she suffered
an adverse employment action because of her disability.” Majors, 714 F.3d at 533.
Here, DTC does not dispute that Graesslin was disabled under the ADAAA or that
she was qualified to perform the essential functions of her job. (See Def.’s Br. (dkt. #11)

The Seventh Circuit has not yet decided whether the ADAAA changed the traditional “but-for”
standard of causation applicable to claims under the ADA. See Serwatka v. Rockwell Automation, Inc.,
591 F.3d 957, 961 n.1 (7th Cir. 2010). DTC argues that Graesslin must prove but-for causation.
While Graesslin “neither agrees with nor concedes DTC’s analysis” (Br. Opp’n (dkt. #24) 14), her
brief also applies the but-for standard. Because the court concludes the standard does not affect
whether Graesslin survives summary judgment, it declines to express an opinion on this question at
present.
8

14

10-11.) Nor is this a “reasonable accommodation” case, as it is undisputed that Graesslin
never requested any accommodations other than time off work, which she received. Thus,
the only question is whether Graesslin was terminated “because of” her disability -- that is,
whether the employer “would have undertaken the same action in the absence of a
disability.” Walters v. Mayo Clinic Health Sys.-Eau Claire Hosp., Inc., 998 F. Supp. 2d 750,
767 (W.D. Wis. 2014).
Graesslin relies on the direct method of proof to establish the causation element of
her discrimination claim. Under the direct method, “a plaintiff can present either direct or
circumstantial evidence to meet its burden.” Dickerson, 657 F.3d at 601. “Direct evidence
requires an admission by the decision maker that his or her actions were based upon the
prohibited animus.” Id. Since such admissions are uncommon, it is also permissible to rely
entirely on “circumstantial evidence that allows a jury to infer intentional discrimination.”
Id. “The type of circumstantial evidence that a plaintiff may produce to survive summary
judgment includes: (1) suspicious timing; (2) ambiguous statements or behavior towards
other employees in the protected group; (3) evidence, statistical or otherwise, that similarly
situated employees outside of the protected group systematically receive better treatment;
and (4) evidence that the employer offered a pretextual reason for an adverse employment
action.” Id. (citing Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 586-87 (7th Cir. 2011);
Burnell v. Gates Rubber Co., 647 F.3d 704, 708 (7th Cir. 2011)).
To establish causation, Graesslin relies primarily on pretext or, as she puts it, the
“sheer falsity” of DTC’s proffered explanation that she was a casualty of restructuring and
unqualified for the newly-created Director of Customer Experience position.

Graesslin

contends that this explanation is nothing more than pretext for disability discrimination.
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Pretext means “a dishonest explanation, a lie rather than an oddity or an error.”
Bodenstab v. Cnty. of Cook, 569 F.3d 651, 657 (7th Cir. 2009) (quoting Faas v. Sears, Roebuck
& Co., 532 F.3d 633, 642 (7th Cir. 2008)). “Pretext can be shown by ‘identif[ying] . . .
weaknesses, implausibilities, inconsistencies, or contradictions’ in an employer’s asserted
reason for taking an adverse employment action such ‘that a reasonable person could find
[it] unworthy of credence.” Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481, 487 (7th
Cir. 2015) (quoting Coleman v. Donahoe, 667 F.3d 835, 852-53 (7th Cir. 2012) (alterations
in original)).
Here, Graesslin has presented sufficient circumstantial evidence for a reasonable jury
to infer that DTC’s reason for terminating her was pretextual. To begin with, at least some
of the duties that the new “Director of Customer Experience” was expected to take on were
identical to those that Graesslin was already performing, apparently satisfactorily. Although
DTC contends that the job also encompassed substantial additional duties for which
Graesslin was not qualified, there is evidence in the record to call into question the
importance of those duties, as well as Graesslin’s supposed lack of qualification to perform
them. For instance, Conlin admitted at her deposition that her own self-assessment makes
little mention of those additional duties. A reasonable jury could infer from this admission
that the “additional duties” on which DTC relies play a smaller part in the Director of
Customer Experience role than DTC contends.
Furthermore, although DTC contends that Graesslin was not responsible for
anything beyond the call center, Graesslin has averred that she was already unofficially
working on various Omni-channel initiatives.

For example, with DeOrio’s knowledge,

Graesslin was already: directing focus groups to improve online ordering; participating in the
16

selection and implementation of the new telephone system; partnering with a third-party
vendor to integrate the performance management computer application with the phone
system; and assisting in the management of customer Internet responses from social media.
(Pl.’s PFOF (dkt. #17) ¶ 17.) There is also evidence that Graesslin directed a planned
implementation of the “Home Agent” program while at DTC, one of the very job duties
that DeOrio avers Graesslin was not qualified to handle. 9
DTC objects that Graesslin is asking the court to “sit as a super-personnel
department” and review its business decisions. Ptasznik v. St. Joseph Hosp., 464 F.3d 691,
697 (7th Cir. 2006) (quoting Ballance v. City of Springfield, 424 F.3d 614, 621 (7th Cir.
2005)). As DTC correctly points out, whether Graesslin was actually qualified for the new
position is irrelevant, as the operative question is “not whether the employer’s reasons for a
decision are ‘right but whether the employer’s description of its reasons is honest.’” Kariotis v.
Navistar Int’l Transp. Corp., 131 F.3d 672, 678 (7th Cir. 1997) (emphasis in original)
(quoting Gustovich v. AT & T Commc’ns, Inc., 972 F.2d 845, 848 (7th Cir. 1992)).
While courts may not second-guess honest business decisions, however, they also
“need not take an employer at its word.” Gordon v. United Airlines, Inc., 246 F.3d 878, 889
(7th Cir. 2001). Determining “whether a belief is honest is often conflated with analysis of
reasonableness.” Flores v. Preferred Technical Grp., 182 F.3d 512, 516 (7th Cir. 1999). “After
all, the more objectively reasonable a belief is, the more likely it will seem that the belief was
honestly held.” Id.; see also Prochaska v. Menard, Inc., 829 F. Supp. 2d 710, 725 (W.D. Wis.
DeOrio testified that he did not recall whether Graesslin had begun a planned implementation of a
home agent program but conceded it “[c]ould have happened.” (Mark M. DeOrio Dep. (dkt. #16)
55:1-21.) One of Graesslin’s former subordinates, Faith Feldman, also avers that she worked on the
home agent program under Graesslin’s direction. (Faith Feldman Aff. (dkt. #18) ¶11), and Graesslin
herself has averred that she directed the planned implementation with DeOrio’s knowledge (Pamela
Graesslin Aff. (dkt. #22) ¶ 16(F).).
9

17

2011) (in evaluating pretext, courts may consider objective reasonableness of decision).
Accordingly, if an employee “offers specific evidence from which the finder of fact may
reasonably infer that the [employer’s] proffered reasons do not represent the truth, the case
then turns on the credibility of the witnesses,” which the court cannot resolve on summary
judgment. Gordon, 246 F.3d at 889 (quoting Collier v. Budd Co., 66 F.3d 886, 893 (7th Cir.
1995)).
Graesslin has met that burden here, by presenting sufficient evidence to call into
question the truthfulness of DTC’s explanation. A reasonable trier of fact could conclude
that Graesslin was already successfully performing numerous job duties that went well
beyond the mere management of Belleville Call Center employees, DTC’s derogation of her
responsibilities notwithstanding, given the apparent growth in Graesslin’s duties and
responsibilities before her illness, for the most part with the knowledge and approval of
DeOrio.

These facts may render suspect in the mind of a reasonable juror the

reasonableness of DTC’s articulated belief that Graesslin was simply not capable of taking
on duties that extended into the realm of general customer experience, particularly since
Conlin’s self-assessment calls into question the importance of the “additional duties”
supposedly assigned to the new Director of Customer Experience.
Finally, the “restructuring” itself is somewhat suspect on this record. Certainly, the
retail world is changing, with telephonic sales necessarily playing a lesser role in light of the
rise of internet commerce. On the present record before this court, however, it does not
appear that DTC’s so-called “restructuring” to meet that need made any practical difference,
except in replacing Graesslin. “Generally, when a company reduces or restructures its workforce, it does not simply hire a new person to fill the discharged employee’s old position.”
18

Collier, 66 F.3d at 890. “Rather, . . . jobs are often consolidated and/or work is shifted to
other existing employees.” Id. In contrast, Graesslin was the only employee to lose her job
as a result of the “restructuring.” DTC has not even presented evidence that other job
responsibilities shifted between workers, much less that its general operations changed in
any marked way.

On this record, a reasonable jury could find that the purported

“restructuring” amounted to nothing more than an excuse to replace Graesslin with a new
employee.
Graesslin also argues that the timing in this case suggests that DTC’s decision was
based on her cancer diagnosis. She points out that no member of DTC’s management had
ever expressed concerns about her qualifications and capabilities until she informed DeOrio
of her cancer diagnosis on June 25, 2012. After that, Graesslin provides evidence that her
“fortunes plummeted.” First, she claims that DeOrio’s interactions with her diminished
after she returned to work. Second, her ongoing efforts to improve customer experience
were supposedly “ignored or ‘shelved.’” Third, Graesslin claims she was no longer included
in important meetings.
DTC argues that some of these statements are of questionable admissibility, given
their conclusory nature and the lack of any supporting facts or details. Cf. Prochaska, 829 F.
Supp. 2d at 713 (rejecting as “vague or conclusory” various proposed findings of fact,
including that plaintiff had “unparalleled” loyalty to the company, that defendant made
“several comments” that were critical of plaintiff’s age, and that plaintiff’s leadership was
“lackluster at best”).

On the other hand, DTC chose to offer no concrete evidence to

contradict any of her proposed findings of fact, despite being required to do so. In the end,
Graesslin provides enough circumstantial evidence in support that a trial is required to
19

resolve her claims. Even without the support of any arguably conclusory “facts,” Graesslin
has produced specific evidence of some negative occurrences that followed close on the heels
of her diagnosis and return to work in late October or early November of 2012. 10 For
example, she was stripped of her responsibility to make her late fall 2012/early spring 2013
presentation to DTC’s Executive Team on behalf of the Contact Center. Similarly, she was
no longer invited to strategic planning/team building meetings with Senior Management,
although she had attended those meetings pre-diagnosis.
Viewing the facts in the light most favorable to Graesslin, as the court must at this
stage in the proceedings, DTC also began actively pursuing Conlin as a possible employee in
December of 2012, less than two months after Graesslin returned to work post-surgery and
still just five months since her cancer diagnosis was disclosed. A reasonable jury could infer
that this chain of events was part of a process through which DTC planned to remove
Graesslin as Contact Center Manager and replace her with Conlin, a plan that DTC at least
arguably set in motion soon after Graesslin recovered from surgery and returned to work.
In response, DTC argues the only timing that should matter is the yearlong gap
between Graesslin’s cancer diagnosis on June 25, 2012, and her termination on July 2, 2013
-- admittedly, a long delay that when viewed in isolation, would not give rise to a reasonable
inference of causation. Cf. Tomanovich v. City of Indianapolis, 457 F.3d 656, 665 (7th Cir.
2006) (four months between complaint and termination insufficient on its own to establish
causal connection); Kuntzman v. Wal-Mart, 673 F. Supp. 2d 690, 716 (N.D. Ind. 2009)
(ten-month

delay

does

not

indicate

suspicious

timing

“except

in

exceptional

As noted above, she officially returned to work October 8, but she then left for a vacation with her
husband.

10

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circumstances”).

But deciding when an inference of causation is reasonable based on

suspicious timing “depends on context.” Loudermilk v. Best Pallet Co., 636 F.3d 312, 315
(7th Cir. 2011). Although Graesslin was diagnosed in June, she did not return to work until
October or November of 2012, yielding a shorter delay than DTC would have the court
believe. Furthermore, although her termination was still admittedly months away, a jury
could reasonably infer that DTC began preparing to terminate her long before by no longer
including her in planning and important meetings, taking away some of her responsibilities
and beginning to look for her replacement.

Considering all of the above evidence in

context, a reasonable jury could find that but for Graesslin’s cancer, DTC would not have
terminated her.
Of course, the evidence Graesslin has presented does not compel this conclusion. A
reasonable jury could also find that DTC’s decision was honestly attributable to its concerns
about needed reorganization and doubts about Graesslin’s qualifications, even if those
concerns and doubts were ultimately unjustified. There is, however, contemporary evidence
that Graesslin was doing more as Call Center Manager than DTC now claims and that
Conlin has since done less than DTC stated would be required of a Director of Customer
Experience (at least as regards the so-called “Omni-channel” initiatives). Both facts suggest
that DTC’s articulated reasoning could be pretextual. The supposed “restructuring” of the
company, which appears to have had no real effect except to replace Graesslin with Conlin,
further supports this inference. Finally, the timing of events, while weak on its own, serves
to bolster the inference of causation, including the relatively short time between Graesslin’s
return to work after being diagnosed with cancer and steps to limit her role in the company
leading up to DTC’s first attempts to recruit Conlin.
21

Viewing all facts in the light most reasonable to Graesslin and drawing all inferences
in her favor, therefore, the court is persuaded that a jury could reasonably find that but for
Graesslin’s cancer, DTC would not have terminated her.

Accordingly, the motion for

summary judgment will be denied.

ORDER
IT IS ORDERED that defendant Duluth Trading Company’s motion for summary
judgment (dkt. #10) is DENIED.
Entered this 22nd day of May, 2015.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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