EDMOND E. CHANG, District Judge.
Plaintiff Bridget Quinlan alleges that her former employer, Defendant Elysian Hotel, fired her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k).
In deciding this summary judgment motion, the Court views the evidence in the light most favorable to the non-movant, Quinlan. In May 2008, Elysian Hotel
Elysian was expected to open in the spring 2009, but the opening was delayed several times. DSOF ¶ 14. In December 2009, Elysian fired Tetrick, and Joseph Aguilera, vice president of marketing and sales, took over as Quinlan's supervisor. DSOF ¶¶ 9, 19. Mary Beth Malone, one of Elysian's investors who had overseen construction of the hotel, also took on marketing
In February 2010, Quinlan informed her supervisors, Aguilera and Malone, that she was pregnant. DSOF ¶ 26. In the following months, Elysian's occupancy rates began to increase. DSOF ¶ 30. By April, the hotel was extremely busy, and the workloads of Elysian employees increased as well. DSOF ¶¶ 30, 34-35. Quinlan had been juggling her public relations responsibilities along with the marketing work that came her way. DSOF ¶ 35. But Quinlan gradually began to handle more of the marketing responsibilities, and her hours increased to between 50 and 60 hours per week. DSOF ¶ 35-36. In fact, Quinlan was the only employee performing tasks related to marketing work under Aguilera and Malone's supervision. DSOF ¶ 40.
By May 2010, it was clear that Elysian was losing more money in 2010 than originally forecasted, and the hotel began to cut costs. DSOF ¶¶ 44, 46-47. In January 2011, Kevin Robinson (Elysian's general manager) asked the hotel planning committee to identify salaried positions that Elysian could eliminate without affecting the hotel's performance. DSOF ¶¶ 9, 66-67. Aguilera suggested that Elysian could operate without an on-site director of public relations, and the planning committee agreed. DSOF ¶¶ 68, 71-73. Ultimately, Robinson and the hotel's development partners approved of the committee's assessment, and Quinlan was fired in February 2011. DSOF ¶¶ 74-75.
Summary judgment is required "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). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir.2008).
Quinlan argues that she was fired because of her sex and pregnancy. See generally R. 37 (Pl.'s Br.). Title VII prohibits employment discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a). In 1978, Congress amended Title VII by enacting the Pregnancy Discrimination Act, which explicitly barred discrimination on the basis of pregnancy:
42 U.S.C. § 2000e(k). "The [Pregnancy Discrimination Act] created no new rights or remedies, but clarified the scope of Title VII by recognizing certain inherently gender-specific characteristics that may not form the basis for disparate treatment of employees." Hall v. Nalco Co., 534 F.3d 644, 647 (7th Cir.2008) (citing Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678-79, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983)). "The [Pregnancy Discrimination Act] `made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on
Quinlan argues that she has sufficient evidence to show sex discrimination using the direct method of proof.
Elysian relies on the general `no do-over' litigation principle: a party cannot defeat summary judgment by having a witness contradict (via an affidavit submitted during briefing) her own prior deposition testimony. Def.'s Reply at 7 (citing Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 521 (7th Cir.1988)). After all, deposition testimony is given under-oath. But as the Seventh Circuit has recognized, "[a] number of scenarios might explain a change [in testimony]: a confusing deposition question, circumstances indicating a lapse of memory, relevant new information discovered after the original testimony, or ambiguous or incomplete earlier testimony." Patton v. MFS/Sun Life Fin. Distribs., Inc., 480 F.3d 478, 488 (7th Cir.2007) (internal citations omitted). Thus, the Court "must examine the particular circumstances of a change in testimony to see whether it is plainly incredible or merely creates a credibility issue for the jury." Id. Here, Quinlan does not offer any reason for her failure to testify during her deposition about the comments listed in her affidavit. Nor does she explain why some of the information in her affidavit conflicts with her deposition testimony. Although it would have been helpful for Quinlan to explain why she did not disclose the various comments in her affidavit during discovery, the Court will examine the record—particularly Quinlan's deposition transcript—to determine whether Quinlan should be precluded from relying on the testimony offered in her subsequent affidavit. See id. at 488 n. 6.
Most importantly (for reasons explained below), the Court concludes that the affidavit's additional detail concerning alleged remarks made by Mary Beth Malone (the director of marketing) do not impermissibly go beyond Quinlan's deposition testimony. The affidavit avers that, right before Quinlan went on maternity leave in October 2010, Malone told Quinlan that if Quinlan decided not to come back to work after having her baby, she could "always get back into PR later in life," and then proceeded to compare Quinlan to two other employees: "Like look at Lara and Jill, they are older, have kids and are doing PR in a way that works for them. It's just something to seriously think about because the workload is not going to get less and it will be very difficult to do this job and be a good mom." Quinlan Decl. ¶ 15.
Quinlan Dep. at 143.
On the second day of Quinlan's deposition, Elysian's counsel revisited the topic of comments made by Malone. See Quinlan Dep. at 290-97. Quinlan again testified that, during weekly meetings, Malone would question her about when she planned to come back to work after maternity leave. Quinlan Dep. at 290-91. Quinlan was asked:
Quinlan Dep. at 292-93.
Defense counsel also asked about Quinlan's memory of workload-related comments made by Malone. Quinlan testified that she had three conversations with Malone regarding workload and maternity leave "that included comments about child care, coming back, and how long [her] leave was going to be." Quinlan Dep. at 295-96.
Quinlan Dep. at 297.
It is true that the affidavit's discussion of Malone does not match word-for-word with Quinlan's deposition testimony, and it is also true that omissions in deposition testimony can form the basis to preclude statements made in later-filed affidavits. For example, in Gates v. Caterpillar, Inc., 513 F.3d 680, 688 (7th Cir.2008), the Seventh Circuit concluded that it was reasonable to disregard a gender-based statement presented for the first time in the plaintiff's affidavit, and was not mentioned by the plaintiff at her deposition. The plaintiff's affidavit in Gates did not necessarily conflict with her testimony from her previous deposition. Id. But Gates concluded that "the omission of such a significant statement during her deposition in a sex
Id. (quoting Babrocky v. Jewel Food Co., 773 F.2d 857 (7th Cir.1985)).
But "where the deposition testimony is ambiguous or incomplete . . . the witness may legitimately clarify or expand upon that testimony by way of an affidavit." Shepherd v. Slater Steels Corp., 168 F.3d 998, 1007 (7th Cir.1999). In reviewing a summary judgment motion, the Court must take seriously the need "to balance the competing interests of determining whether a subsequent statement so clearly contradicts an earlier one so as to disallow it as a matter of law or whether it creates an issue of credibility more properly resolved by the trier of fact." Gates, 513 F.3d at 688 n. 5 (citing Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003)). "[A]s a general rule, a party may not create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony in the absence of newly-discovered evidence or the unmistakable need to clarify prior ambiguous statements . . . It is less obvious when . . . the `new' statement adds to, without directly contradicting, prior testimony although the prior testimony is perfectly clear." Id.; see also Buckner v. Sam's Club, Inc., 75 F.3d 290, 292-93 (7th Cir.1996) (district court did not abuse its discretion in disallowing very specific description in affidavit after plaintiff's previous deposition offered merely general commentary on its physical nature when that specificity was necessary to establish causal link). Indeed, it is well-settled that the party opposing summary judgment "may attempt to clarify or augment (but not contradict) prior deposition testimony through affidavits." Simmons v. Chicago Bd. of Ed., 289 F.3d 488, 492 (7th Cir. 2002).
With these principles in mind, the Court concludes that, under the circumstances of this case, paragraph 15 of Quinlan's affidavit does not impermissibly add to her deposition testimony. Quinlan's description of Malone's comment about Lara and Jill (two other public-relations executives who left full-time work after having children) does not contradict Quinlan's prior deposition testimony, but instead modestly clarifies the conversations she testified about at her deposition. The same goes for the affidavit's allegation that "the workload is not going to get less and it will be very difficult to do this job and be a good mom," Quinlan Decl. ¶ 15, when compared to the similar deposition testimony, "[I]t's going to be hard to manage this workload and be a mom," Quinlan Dep. at 133-34. All in all, even though the affidavit is not word-for-word with Quinlan's deposition, paragraph 15 of Quinlan's affidavit does not fill in so many gaps that Quinlan has, in effect, contradicted the deposition. Gates does not require an identical recitation of the comment allegedly made to the plaintiff, especially where, as here, the plaintiff did testify generally
But other statements do impermissibly contradict the deposition testimony. Specifically, turning to these other affidavit statements that Elysian seeks to exclude, see Def.'s Reply at 9-10, the Court will disregard the following statements as conflicting with Quinlan's deposition testimony:
Now the Court must decide whether the remaining statements constitute "`a convincing mosaic' of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker." Silverman v. Bd. of Ed. of City of Chicago, 637 F.3d 729, 734 (7th Cir.2011). Indeed, Quinlan relies primarily on her affidavit to defeat Elysian's motion for summary judgment. See R. 34, Pls.'s Resp. to Def.'s Stmt. of Facts; R. 35, Pl.'s Stmt. of Facts (PSOF); R. 37, Pl.'s Br.
Quinlan argues that comments made by Robinson, Aguilera, and Malone demonstrate that she was fired due to her "sex and pregnancy." Pl.'s Br. at 15. Although many of the alleged discriminatory comments were made during Quinlan's pregnancy, Quinlan was not fired until after she gave birth and returned to work after taking maternity leave. So Quinlan's claim really seems to fall under the umbrella of sex/gender discrimination based on Quinlan's status as a new mother.
In any event, the Court must determine whether a reasonable jury could conclude that Quinlan's supervisors' statements reflected unlawful sex discrimination. To survive Elysian's motion for summary judgment, the "bits and pieces" Quinlan presents in support of her mosaic of circumstantial evidence "must point directly to a discriminatory reason for the employer's action." Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.2003); Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir.2001) ("[T]here must be a real link between the bigotry and an adverse employment action."); see also Fleishman v. Continental Casualty Company, 698 F.3d 598, 603 (7th Cir.2012) ("[F]undamentally the plaintiff must connect the circumstantial evidence to the employment action such that a reasonable juror could infer the employer acted for discriminatory reasons.").
Here, Quinlan claims that Aguilera, one of the decision-makers, told her in March 2010 (remember, Quinlan was fired in February 2011) that he knew she was pregnant but that the workload was not going to lighten up and Quinlan would be expected to spend more time at Elysian and at outside events. Quinlan Decl. ¶ 13. Quinlan also points to an incident in January 2011 when, after Quinlan had returned from maternity leave, Aguilera entered Quinlan's office and shouted at her about emailing the Elysian CEO despite being instructed not to do so. Quinlan Decl. ¶ 46. Quinlan believed that Aguilera's outburst was motivated by gender discrimination, and reported to Elysian's human resources representative that Aguilera "had a problem with women." Quinlan Decl. ¶¶ 47. Finally, Quinlan points out that Aguilera required her to work the photo
Regarding another decision-maker in this case, Kevin Robinson, Quinlan contends that Robinson talked to Quinlan about the personal hardships he faced when his wife gave birth to their first child. Quinlan Decl. ¶ 11. Specifically, during a cab ride home from a July 2010 event, Robinson told Quinlan that it was "not a big deal" if she did not want to return to work at Elysian after her baby was born, and staying at home was a sacrifice that Quinlan should make for her family, but that statement was made in the context of Robinson's own struggles in arranging childcare. Quinlan Decl. ¶ 11. During the conversation, Robinson asked Quinlan several times about whether she was sure that she wanted to come back to work after having a child. Id.
In determining whether Quinlan has met her burden of proof under the direct method, the Court must consider Aguilera and Robinson's remarks, "despite being attenuated from the adverse employment action, in conjunction with all of the other evidence of discrimination to determine whether [Quinlan's] claim can survive summary judgment." Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1115 (7th Cir. 2009). Here, Quinlan alleges that Aguilera and Robinson each had one conversation with her in March 2010 and July 2010, respectively, about the difficulties she would likely face as a working mother (the other statements by Aguilera do not add to the mix because they are not reflective of discrimination). There are reasons to doubt whether those comments are probative of discrimination: first, both were made several months in advance of the February 2011 firing, and usually a time gap of around 11 months and 7 months between remarks and the employment decision substantially reduces the probative force of the remarks. But perhaps a reasonable jury would conclude that for a claim of Quinlan's type—that the employer discriminated based on a view that new mothers cannot (or are less able to) do the job—it is not so unusual for there to be a substantial time gap between a discriminatory remark and the firing, because the basis for the discrimination (taking care of the newborn while doing the job) does not actually occur until after the pregnancy, as well as, sometimes, after a maternity leave. (Of course, a jury could conclude otherwise, namely, that the time gap shows that there is no discrimination.) Aside from the time gap, the other reason to doubt the relevancy of Robinson's statements is that he made them in the context of describing Robinson's own personal struggles in arranging childcare (plus the conversation took place during a cab ride, adding to the personal rather than business context of the statements). Again, however, a reasonable jury could conclude otherwise, especially if Robinson made the comments unprompted by any advice-seeking from Quinlan and if he emphasized the difficulty of working and raising children repeatedly in the same conversation.
Malone's statements were made closer in time (including in October 2010) to the February 2011 firing than the statements of Aguilera and Robinson, and there is evidence that Malone was involved with the decision to fire Quinlan in February 2011. Between 2002 (when the idea of the Hotel was just forming) and 2012, Malone was a development partner for Elysian and held several different developmental and operating roles. R. 26-1, Def.'s Exh. G (Malone Decl.). As a member of the development team, Malone was considered a partner with Elyisan's primary capital investor, Arcapita. DSOF ¶ 8. To operate the hotel, the development team established the planning committee, which included Aguilera and Robinson. DSOF ¶ 9. In early 2011, the planning committee was responsible for identifying which managerial positions could be eliminated from Elysian's payroll. DSOF ¶ 65. Aguilera and Robinson determined that Elysian could operate without a public relations director, and recommended that Quinlan be fired. DSOF ¶¶ 68-70. Malone and the other development partners ultimately agreed with the planning committee's recommendation, and approved the decision to fire Quinlan. DSOF ¶¶ 74-75.
Elysian argues that Malone's comments were not discriminatory, rather, they were made during "girl talk"
Finally, there is a last piece of evidence that Quinlan offers for the "mosaic," and it relates to pretext. It is worth addressing this so that the parties know whether this last piece will be admissible at trial. Quinlan contends that Elysian's reasons for firing her are pretextual. According to Elysian, the hotel was forced to eliminate seven salaried positions, including Quinlan's position as public relations director, in order to avoid bankruptcy. DSOF ¶¶ 71-75. To show pretext, Quinlan must provide evidence suggesting that the proffered reason for firing her was "a lie—not just an error, oddity, or oversight." Van Antwerp v. City of Peoria, 627 F.3d 295, 298 (7th Cir.2010); see also Filar v. Bd. of Educ. of the City of Chicago, 526 F.3d 1054, 1063 (7th Cir.2008); ("Showing pretext requires proof that the defendant's explanation is unworthy of credence.").
Quinlan argues that Elysian's reason for firing her is dishonest because, later that week, Elysian added two new employees to its payroll. Pl.'s Br. at 14. Quinlan argues that adding new employees to the "department payroll" demonstrates that Elysian was not actually concerned with cutting costs at that time. Id. at 12-14. But as Elysian points out (and Quinlan fails to dispute), these new employees were "revenue producers" in that they produced more revenue for the hotel than the sum of their wages and benefits. Def.'s Reply at 15. Quinlan's assertion that Elysian "padd[ed] the payroll by hiring public relations services" after firing Quinlan likewise has no basis in fact. See Pl.'s Br. at 14. Quinlan points to invoices from Karrie Leung, a public relations firm to which Elysian outsourced some of its work, that range from $4,000 to $5,000 per month. R. 49-2, Pl.'s Exh. 3; Def.'s Br. at 10. This is a far cry from keeping a full-time public relations director with a salary of over $80,000 per year on staff. In short, a reasonable jury cannot rely on this evidence as proof of discrimination, so Quinlan will not be permitted to introduce that evidence at trial.
"To prevail on an FMLA interference claim, an employee must show that: (1) she was eligible for FMLA protection; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to take FMLA leave; and (5) her employer denied her the right to FMLA benefits." Nicholson v. Pulte Homes Corp., 690 F.3d 819, 825 (7th Cir. 2012).
Aside from reciting the elements required to establish an FLMA interference claim, Quinlan's response brief does not address this claim. See Pl.'s Br. at 6-7. Quinlan's Local Rule 56.1 statement (which is based almost entirely on her affidavit) asserts that, when Quinlan was on maternity leave, Malone contacted her 25 to 30 times for work-related matters and assignments. PSOF ¶ 32. But Quinlan's failure to develop her claim with argument and citations to the record constitutes a waiver of the claim. See Palmer v. Marion Cnty., 327 F.3d 588, 597-98 (7th Cir.2003) (holding that claims not addressed in a brief opposing summary judgment are waived). Elysian's motion for summary judgment on the FMLA interference claim is granted.
To establish a prima facie case of sexual harassment, a plaintiff must show that "(1) she was subjected to unwelcome harassment; (2) the harassment was based on
Quinlan's response brief does not adequately address her harassment claim. Quinlan asserts that "[e]vidence that an employee complained to her supervisors and to Human Resources, but who is rebuffed and even insulted constitutes admissible, circumstantial evidence of harassment." Pl.'s Br. at 3. But Quinlan fails to demonstrate how the January 2011 incident involving Aguilera was "sufficiently severe or pervasive to rise to the level of actionable harassing conduct." Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 732 (7th Cir.2009). Elysian's motion for summary judgment with respect to Quinlan's harassment claim is also granted.
Elsyian's motion for summary judgment [24] is denied with respect to Quinlan's Title VII claim for sex discrimination. The Court grants Elysian's motion for summary judgment on the FMLA interference and harassment claims. At the January 28, 2013 status hearing, the parties must be prepared to discuss whether they wish to hold a settlement conference or set a trial schedule. If the parties conclude before the status hearing that they wish to hold a settlement conference, they should call the courtroom deputy to arrange one with the Court or to ask for a referral to the magistrate judge.