Opinion
No. 03 C 2744.
April 14, 2005
For the reasons stated below, Resurrection Health Care ("Resurrection") respectfully, reluctantly, and with due regard for the infrequency with which motions for reconsideration are granted, asks that the Court reconsider its March 28, 2005 decision to deny Resurrection's motion for summary judgment on Plaintiff's discrimination claims.
INTRODUCTION AND SUMMARY
Resurrection assumes familiarity with the facts of this case. The record is cited herein as follows: Resurrection's statement of undisputed facts, as "(Def.'s Facts ¶ ____);" Plaintiff's statement of facts, as "(Pl.'s Facts ¶ ____);" Resurrection's responses to Plaintiff's statement of facts, as "(Def.'s Fact Resp. ¶ ____);" Plaintiff's responses to Resurrection's statement of facts, as "(Pl.'s Fact Resp. ¶ ____);" Resurrection's memorandum of law, as "(Def.'s Mem. at ____);" Plaintiff's memorandum in response, as "(Pl.'s Mem. at ____);" Defendant's Reply Brief, as "(Def.'s Reply Mem. at ____);" and the Court's March 28, 2005 Opinion and Order, as "(Op. at ____)."
Resurrection recognizes that motions to reconsider "do not exist in order to allow parties to `rehash' the same argument," and thus confines its memorandum to three respects in which the Court's decision concerning Plaintiff's discrimination claims appears to have misconstrued the record and/or overlooked controlling legal standards. Rosby Corp. v. Stoughton Trailers, Inc., No. 95 C 511, 2004 U.S. Dist. LEXIS 11970, at *7-8 (N.D. Ill. June 25, 2004).
First, Resurrection submits that the Court misapplied the summary judgment standard when it concluded plaintiff must present "some" evidence to support her prima facie case and that the Court "must assume that the events occurred as plaintiff describes them; that is, that plaintiff did not engage in any misconduct." (Op. at 3). Rather, the Plaintiff was required to produce "sufficient" evidence and the Court was free to view all facts and all reasonable inferences therefrom in the light most favorable to Plaintiff.
Second, Resurrection submits that Plaintiff's evidence, as a matter of law, was insufficient to support her opposition to Resurrection's motion for summary judgment. It is well-established that the affidavits of co-workers expressing opinions as to a plaintiff's job performance are insufficient to support a finding that the plaintiff "satisfied her employer's legitimate expectations." Likewise, Plaintiff's own affidavit contains conclusory and speculative allegations which are also insufficient as a matter of law to create a genuine material fact dispute. In addition, the co-workers whom Plaintiff proffered as similarly situated lacked work performance and history comparable to Plaintiff's; they are insufficient as a matter of law to satisfy the "similarly situated" prong of Plaintiff's prima facie case.
Finally, and most important, Resurrection submits that the Court shifted Plaintiff's burden of proof to the employer in the pretext stage when it concluded that "defendant has failed to shoulder its burden of articulating a legitimate reason for plaintiff's termination." (Op. at 3). Seventh Circuit precedent clearly establishes that Resurrection needed only articulate a legitimate nondiscriminatory reason by proffering evidence, which, if believed by a trier of fact (a determination not made at the summary judgment stage), would support the finding that unlawful discrimination was not the cause of the employment action. Resurrection met that burden when it presented Plaintiff's disciplinary records indicating Resurrection terminated Plaintiff because she engaged in disrespectful treatment of co-workers, supervisors, and patients, against Resurrection policy. As a matter of law, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508 (1993) (emphasis added). At the pretext stage, Plaintiff's denials that the misconduct did not occur were legally insufficient to avoid summary judgment; Plaintiff's burden was to prove that Resurrection did not honestly believe that Plaintiff had engaged in misconduct warranting termination. This Plaintiff failed to do or even assert. Therefore, Resurrection respectfully requests that the Court reconsider its ruling denying summary judgment on Plaintiff's claims of discrimination.
ARGUMENT
I. ON SUMMARY JUDGMENT, THE NON-MOVANT IS ENTITLED TO HAVE REASONABLE AND JUSTIFIABLE INFERENCES MADE IN HER FAVOR BUT IS NOT ENTITLED TO A BLANKET ASSUMPTION "THAT THE EVENTS OCCURRED AS PLAINTIFF DESCRIBE[D] THEM." A. Only a Genuine Issue of Material Fact is Sufficient to Avoid Summary Judgment.
In its memorandum opinion, the Court noted that "Plaintiff disputes virtually all of the facts concerning the incidents that defendant says prompted her termination." (Op. at 3). Yet, "the mere existence of a factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see Fed.R.Civ.P. 56(c); see also Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 996 (7th Cir. 2002) ("The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. To successfully oppose the motion, the nonmovant must present definite, competent evidence in rebuttal."); Vukadinovich v. Bd. of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002).
Therefore, the existence of a purported factual dispute — not surprising given Plaintiff's contentious work behavior, not to mention the nature of litigation generally — was insufficient to defeat a motion for summary judgment. Rather, the alleged fact dispute must be "genuine," that is, such that "a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. "A genuine issue for trial exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole." Michas, 209 F.3d at 692 (quoting Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999)). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citation omitted).
Citing Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000), the Court held that on summary judgment it must "view all evidence and draw all inferences in favor of the non-moving party." (Op. at 3). As emphasized in Michas, however, "[i]n determining whether any genuine issue of material fact exists, [the court] must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Id. at 692 (emphasis added). The "reasonable and justifiable" portion is inextricable from the standard — indeed, "[a]n issue is genuine" only if "the evidence . . . would permit a reasonable factfinder to decide the issue in favor of [the plaintiff]." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir., 1998); Liberty Lobby, 477 U.S. at 249. Here, the Court concluded that it "must assume that the events occurred as plaintiff describe[d] them; that is, that plaintiff did not engage in any misconduct." (Op. at 3). Resurrection submits that in light of the foregoing standards, this assumption was neither required by the law, nor supported by the facts and reasonable inferences therefrom. ( See Part II, infra).
B. Plaintiff's Presentation of Only "Some" Evidence Was Insufficient to Support Her Prima Facie Case and Avoid Summary Judgment.
Rule 56(e) of the Federal Rules of Civil Procedure provides that in order to avoid summary judgment, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." See also Anderson, 477 U.S. at 250 (emphasis added). Here, the Court held that Plaintiff need only "present some evidence" to satisfy each prong of a prima facie case for discrimination. (Op. at 2) (citing Foster v. Arthur Anderson, LLP, 168 F.3d 1029, 1035 (7th Cir. 1999)). In Foster, however, the court dismissed the evidence the plaintiff proffered to counter her negative performance status — a co-worker's affidavit — stating that the affidavit (arguably some evidence) "[got] [the plaintiff] nowhere." 168 F.3d at 1035. Resurrection respectfully submits that Plaintiff must instead present " sufficient" evidence such that a reasonable jury might return a verdict in her favor. See Anderson, 477 U.S. at 249. As discussed below, Plaintiff has failed to do so.
II. PLAINTIFF'S EVIDENCE, CONSISTING OF HER OWN AFFIDAVIT AND THOSE OF THREE FORMER CO-WORKERS, WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN HER PRIMA FACIE CASE.
To survive summary judgment, Plaintiff must at the outset meet her prima facie burden. This requires that she prove or, at least, produce evidence "sufficient" to generate a genuine issue of disputed fact as to whether: (1) she is a member of a protected class; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) Resurrection treated similarly situated Hispanic employees more favorably. See Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 445 (7th Cir. 1997). The first and third prongs are undisputed; therefore, to avoid summary judgment, Plaintiff must present evidence sufficient to create a genuine issue of material fact on the second and fourth prongs. Plaintiff submitted four pieces of "evidence" to oppose Resurrection's motion: her own affidavit and the affidavits of former co-workers Dr. Philip Casella, Annie Nabors, and Mary Hampton. This showing was insufficient as a matter of law to defeat a motion for summary judgment.
A. As A Matter of Law, Plaintiff Failed to Establish that She Was Satisfactorily Performing Her Job.
Under Seventh Circuit precedent, the affidavits supplied by Dr. Philip Casella, Annie Nabors and Mary Hampton, and relied on by Plaintiff (see Pl.'s Facts ¶¶ 118-120), were insufficient to create a genuine issue of material fact under the second prong of Plaintiff's prima facie burden. "[T]he general statements of co-workers indicating that a plaintiff's job performance was satisfactory are insufficient to create a material issue of fact as to whether a plaintiff was meeting her employer's legitimate employment expectations at the time she was terminated." Peele v. Country Mutual Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002); see also Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1460 (7th Cir. 1994) (case law "give[s] little weight to statements by supervisors or co-workers that generally corroborate a plaintiff's own perception of satisfactory job performance"); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125 (7th Cir. 1994).
The affidavits are also deficient on their face under Rule 56(e) because they are not "made on personal knowledge" and do not "set forth such facts as would be admissible in evidence." Fed.R.Civ.P. 56(c). See infra. For example, all of the declarants allege knowledge of Plaintiff's performance; yet none of them worked with Plaintiff in the Registrar Department; indeed, none even assert that they worked at the Hospital during the time periods when the discipline in question occurred. (Nabors Decl. ¶ 4, Hampton Decl. ¶ 4, Casella Decl. ¶ 4).
In addition, Plaintiff's own affidavit assertions contradicted her sworn deposition testimony and were thus, as a matter of law, also insufficient to raise a genuine issue of material fact:
Affidavits, though signed under oath by the affiant, are typically . . . written by the affiant's lawyer, and when offered to contradict the affiant's deposition are so lacking in credibility as to be entitled to zero weight in summary judgment proceedings unless the affiant gives a plausible explanation for the discrepancy. Beckel v. Wal-Mart Associates, 301 F.3d 621, 623 (7th Cir. 2002); see also Czubaj v. Ball State University, 107 Fed. Appx. 664, 666 (7th Cir. 2004) (holding that plaintiff's affidavit assertion that her male coworkers were permitted to work less than 20 hours per week could not create a genuine issue of material fact because it was contradicted by her deposition testimony in which she testified this assertion was a "guess").
Several such contradictions are present here. For example, in her deposition, Plaintiff testified that during one incident which resulted in discipline, co-worker Rosa Cortez spoke to her "loud[ly] and abrupt[ly] and in front of patients," and that supervisor Teresa Cardona told her "Betty, patients out there. Lower your voice." (Pl.'s Dep. At 172 (lines 17-24); 175 (lines 2-5); Def.'s Fact Resp. ¶ 83). By contrast, Plaintiff's affidavit stated that "[a]t no time was there any yelling or screaming between Rosa [Cortez] and Plaintiff, and Theresa [sic] [Cardona] never told Plaintiff to stop her behavior." ( See Def.'s Reply Mem. at 7). In her Statement of Facts, Plaintiff similarly contradicted her deposition testimony by denying "having been told to stop this behavior by Theresa [sic] Cardona as that never happened." (Pl.'s Facts ¶ 87). Because Plaintiff provided no explanation for these serious, material discrepancies, her affidavit revisionism was insufficient to create a triable issue; it should be disregarded as a matter of law in favor of the account she gave in her deposition. See Beckel, 301 F.3d at 623. Under that account, Plaintiff was indeed involved in a "loud," "abrupt" confrontation with her supervisor during which her supervisor (in Plaintiff's words) instructed her to "lower [her] voice." (Pl.'s Dep. at 172, 175).
In another instance of contradicting her own deposition testimony, Plaintiff identified a "Jolene" as a comparable employee, stating that "Jolene" was a Hispanic Registrar who took a long break and should have been but was not disciplined. (Pl.'s Facts ¶ 104). In her deposition, however, Plaintiff testified that she believed "Jolene" had received permission for this extended break. (Pl.'s Dep. At 157, Def.'s Mem. at 11). Therefore, "Jolene" did not engage in misconduct and escape discipline; instead, she requested and received permission for her extended break, and thus is not comparable at all.
Even if Plaintiff's affidavit were not contradicted by her own deposition testimony, it would fail to raise a genuine issue of material fact for a second reason. Rule 56(e) requires that an affidavit opposing summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as to all matters stated therein." Plaintiff's affidavit fails on each of these criteria. Among other things, Plaintiff's affidavit impermissibly: speculated as to Resurrection's state of mind (Pl.'s Decl. ¶¶ 31, 32, 40, 42, 61, 64), see, e.g., Filippo v. Northern Indiana Public Service Corp., 141 F.3d 744, 750 (7th Cir. 1998); summarily assumed (without evidence) that her poor treatment at the hands of his supervisor was discriminatory (Pl.'s Decl. ¶¶ 40, 42, 47, 48, 49, 50), see, e.g., Cowan v. Glenbrook Security Servs., Inc., 123 F.3d 438, 444 (7th Cir. 1997); consisted exclusively of her own "uncorroborated and unsubstantiated testimony" and allegations (Pl.'s Decl., passim), see, e.g., Weeks v. Samsung Heavy Industries Co., 126 F.3d 926, 939 (7th Cir. 1997); rested on her subjective belief that neutral comments were discriminatory (Pl.'s Decl. ¶¶ 40, 48, 50, 54, 60, 64), see, e.g., Mills v. First Federal Savings Loan Ass'n, 83 F.3d 833, 841 (7th Cir. 1996); and contained "nothing beyond her own conclusory assertions of discrimination" (Pl.'s Decl. ¶¶ 41, 46, 51, 52), see, e.g., Cliff v. Bd. of Comm'rs. of the City of Indianapolis, 42 F.3d 403, 412 (7th Cir. 1994). See Cichon v. Exelon Generation Co., LLC, No. 03-3724, 2005 U.S. App. LEXIS 4557, at *12 (7th Cir. Mar. 21, 2005) (affirming the district court's refusal to accept plaintiff's responses to defendant's statement of facts because he "supported [his] responses with self serving affidavits or unauthenticated documents").
B. As A Matter Of Law the "Comparables" Plaintiff Identified Were Not "Similarly Situated" To Her and Did Not Satisfy the "Similarly Situated Prong" of Her Prima Facie Case.
The Court concluded that Plaintiff adduced a sufficient fact issue concerning whether Resurrection treated similarly situated Hispanics more favorably than Plaintiff. (Op. at 3) (citing Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000) for the proposition that "employees are similarly situated if they `deal with the same supervisor [and are] subject to the same standards") (alterations by the Court). Radue held:
[A] plaintiff must show that he is similarly situated with respect to performance, qualifications and conduct. This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them.Radue, 219 F.3d at 617-18 (internal citation omitted) (emphasis added). The facts of Radue parallel those presented here and merit analysis.
In Radue, the plaintiff argued that he was similarly situated to three employees who, in the employer's reduction in force (RIF), were transferred to different departments while he was instead terminated. Id. at 618. The court concluded that "even if [the plaintiff] demonstrated some likeness" to the three employees, "he was substantially dissimilar to them in two material ways: he had previous job performance problems and he communicated to superiors that he hoped he could bide his time with the company for two more years in order to qualify for a good severance package." Id. Whereas the plaintiff "was perceived as having a drinking problem, had episodes of non-attendance, and was thought to procrastinate on projects," the other employees "were not previously cited for substantial performance problems and never manifested an intent to make a quick departure, which makes that materially different from [the plaintiff]." Id. at 618-19. The court concluded, "[b]ecause these distinctions were substantial enough to account for the different treatment [the plaintiff] claims he received, [the plaintiff] has failed to show that he was sufficiently similar" to any of the three employees he cited. Id.
Here, Plaintiff identified a list of people who allegedly engaged in conduct similar to hers and who were not disciplined. ( See Pl.'s Facts ¶¶ 99-104). Yet Plaintiff adduced no evidence that she was similarly situated to any of these "comparable" employees "with respect to performance, qualifications and conduct." Radue, 219 F.3d at 617-18 (emphasis added). Plaintiff identified "Marilyn" as a comparable but did not assert (much less proffer evidence) that "Marilyn" was comparable to her in terms of work performance, or whether "Marilyn" shared the same supervisor as Plaintiff. (Pl.'s Facts ¶ 99); see Radue, 219 F.3d at 618 (plaintiff's failure to show comparable employee had common supervisor precluded a showing of similarity because when "different decision-makers are involved, two decisions are rarely similarly situated in all relevant respects") (citation omitted). Plaintiff also identified Leslie Kascher (Pl.'s Facts ¶ 100), Beverly Rodriguez (Pl.'s Facts ¶ 102), and Betsy Matias (Pl.'s Facts ¶ 102) as comparables; however, as a matter of law, these three cannot be comparables because they were supervisors, not Registrars like Plaintiff, and because Plaintiff did not adduce any evidence as to each of the supervisors' work performance history. (Pl.'s Facts ¶¶ 100-102). Plaintiff identified one comparable as an "Hispanic Registrar-who was not disciplined," but asserts no other information (and points to no evidence) regarding the employee's name, work performance history, or supervisor. (Pl.'s Facts ¶ 102). "Lourdes" is similarly identified by Plaintiff but, again, Plaintiff does not provide any other information other than her bald assertion that Lourdes engaged in misconduct and was not disciplined. (Pl.'s Facts ¶ 102). By Plaintiff's own account, another supposed comparable ("Ibez") is an employee who did not work in Plaintiff's department, and Plaintiff provides no foundation or evidence for her assertion that "Ibez" was not disciplined for what Plaintiff perceived as misconduct. (Pl.'s Facts ¶ 103). Lastly, Plaintiff identifies a "Jolene" as a comparable, alleging that "Jolene" was a Hispanic Registrar who took a long break and was not disciplined. (Pl.'s Facts ¶ 104). As noted, however, Plaintiff testified that "Jolene" had received permission for this break. (Pl.'s Dep. At 157, Def.'s Mem. at 11; see supra Section II.A).
Therefore, none of Plaintiff's supposed "comparables" is sufficient to satisfy the "similarly situated" prong of Plaintiff's prima facie case. See also Kriescher v. Fox Hills Golf Resort and Conference Center, 384 F.3d 912, 916 (7th Cir. 2004) (plaintiff alleged two employees violated company rules "but she has offered no evidence that her duties were the same as theirs or that their alleged rule violations were comparable to her conduct. . . ."); Hobson v. Potter, 100 Fed. Appx. 556, 560 (7th Cir. 2004) (plaintiff's production of a list of names of nine other employee couples whom she identified as "similarly situated," and not subject to the same employment action, was insufficient to establish that the employees were treated more favorably and thus plaintiff failed to establish a prima facie case of discrimination).
III. AT THE PRETEXT STAGE, PLAINTIFF IS NOT ENTITLED TO HAVE ALL FACT DISPUTES RESOLVED IN HER FAVOR; RESURRECTION'S BURDEN IS ONLY TO ARTICULATE A LEGITIMATE NON-DISCRIMINATORY REASON, "WHICH, IF BELIEVED BY THE TRIER OF FACT, WOULD SUPPORT A FINDING THAT UNLAWFUL DISCRIMINATION WAS NOT THE CAUSE OF THE EMPLOYMENT ACTION."
The burden to prove pretext was on Plaintiff and not on Resurrection. However, the Court's pretext analysis stated:
The burden now shifts to defendant to articulate a legitimate, non-discriminatory reason for her discharge. Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir. 1993). The reason defendant offers is plaintiff's alleged misconduct. As noted above, however, the record compels us to assume that no misconduct actually occurred. Thus, defendant has failed to shoulder its burden of articulating a legitimate reason for plaintiff's termination. Its motion for summary judgment on plaintiff's discrimination claims is, therefore, denied.
The Von Zuckerstein case was decided without the benefit of the Supreme Court's June 25, 1993 decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
(Op. at 3, emphasis added). In St. Mary's Honor Center v. Hicks, the Supreme Court reversed the lower court's judgment that the defendant employer had failed to meet its burden of proof at the pretext stage and was thus not entitled to summary judgment. 509 U.S. 502, 525 (1993). The Supreme Court defined the pretext analysis as one in which "`[t]he defendant must clearly set forth, through the introduction of admissible evidence,' reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Id. at 507 (emphasis in original). "By producing evidence (whether ultimately persuasive or not) of nondiscriminatory reasons, petitioners sustain their burden of production. . . ." Id. at 509 (emphasis added). "[T]he determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment." Id. at 509 (emphasis added). The burden of production then returns to the plaintiff to demonstrate "that the proffered reason was not the true reason for the employment decision." Id. at 508. "[T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 508 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Resurrection has amply articulated its reason for terminating Plaintiff — that she repeatedly and despite warnings engaged in disruptive and disrespectful behavior toward coworkers, supervisors, and patients. ( See Def.'s Facts Pl.'s Fact Resp. ¶¶ 20, 24, 26, 28, 31-34, 38, 39, 44, 84, 96; Def.'s Reply Mem. at 5). Therefore, the burden of production shifted to Plaintiff to prove by a preponderance of the evidence that Resurrection's legitimate, nondiscriminatory reason was a lie and a cover for discrimination. See Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 694 (7th Cir. 2000); Billups v. Methodist Hospital of Chicago, 922 F.2d 1300, 1302 (7th Cir. 1991). "[A] reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).
Plaintiff did not adduce any evidence that even remotely suggested that Resurrection did not honestly believe it was terminating Plaintiff due to her misconduct. ( See Pl.'s Mem. and Facts). This failure, as a matter of law, leaves no issue for trial. In Michas, a case relied upon by the Court here, the Seventh Circuit addressed this precise situation:
To show pretext, Michas must present evidence from which we may infer that HCC did not, at the time of his discharge, honestly believe the reason they gave for firing him. Michas provides no evidence that HCC did not believe that it needed to cut costs where it could. Instead, Michas again wishes us to infer from the circumstantial evidence that a seemingly legitimate business decision was based on discriminatory motive. In the absence of any direct evidence, however, we will not second-guess the business decisions made by an employer.Michas, 209 F.3d at 695; see also Hudson v. Chicago Transit Authority, 375 F.3d 552, 561 (7th Cir. 2004) (plaintiff failed to establish material issue of fact because he had not presented evidence sufficient to show the legitimate nondiscriminatory reason articulated by the employer was anything other than the reason for which he was terminated); Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876 (7th Cir. 2002) ("It was insufficient `for the employee to show that the employer acted incorrectly or undesirably by firing him'; instead `the employee must show that the employer did not honestly believe in the reasons it gave for firing him.'") (emphasis added); Guerrero v. Ashcroft, 253 F.3d 309, 314 (7th Cir. 2001) (requiring that plaintiff provide evidence that employer's failure to hire him was "a sham or not based in fact"); Logan v. Caterpillar, Inc., 246 F.3d 912, 920-21 (7th Cir. 2001) ("[P]retext is defined as `a lie, specifically a phony reason for some action. . . . In order to show pretext, however, `it is not enough for the plaintiff to simply assert that the acts for which he was terminated did not occur. . . . He must provide some evidence that the employer did not honestly believe the reasons given for his discharge.") (internal citation omitted).
Thus, it is insufficient that Plaintiff predictably (without evidence) denies that she engaged in "[a] pattern of unprofessional or disruptive behavior" (Pl.'s Fact Resp. ¶ 19); "treated patients or staff in an offensive and disrespectful manner" (Pl.'s Fact. Resp. ¶ 20); "became extremely hostile, rude and argumentative" toward her supervisors (Pl.'s Fact. Resp. ¶ 24); engaged in "conduct [that] was unacceptable or violated any claimed code of professional conduct" (Pl.'s Fact. Resp. ¶ 25); deserved a "written warning" for her misconduct (Pl.'s Fact. Resp. ¶ 29); or made any registration errors (Pl.'s Fact. Resp. ¶¶ 31). Plaintiff cannot meet her pretext burden through such facile denials or idiosyncratic opinions. See, e.g., Gustovich v. ATT Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992) ("An employee's self-serving statements about his ability . . . are insufficient to contradict an employer's negative assessment of that ability," and "do nothing . . . to establish that the proffered reason is a pretext for discrimination."); see also Cichon v. Exelon Generation Co., No. 03-3724, 2005 U.S. App. LEXIS 4557, at *15 n. 8 (7th Cir. Mar. 21, 2005) (no support for plaintiff's allegations that he was the only supervisor discharged and that he was told he was the best candidate for the job other than plaintiff's "own self-serving and unauthenticated statements, which are insufficient to create a genuine issue of material fact"); Billups, 922 F.2d at 1303 (plaintiff's denial that the performance issues occurred and assertion that she had a good work record prior to the alleged incidents were "self-serving remarks standing alone [which] are insufficient to raise doubt as to the credence of the employer's explanation for termination"); Simmons v. Chicago Board of Education, 289 F.3d 488, 493-94 (7th Cir. 2002) (affirming summary judgment for employer where employee produced only his own affidavit contesting employer's articulated reason for termination, since "it is unclear why this affidavit, standing alone, should persuade a trier of fact that [the plaintiff's supervisor's] version of events, supported by [the three next superior supervisors] is unworthy of belief"); Williams v. Williams Electronics Inc., 856 F.2d 920, 924 (7th Cir. 1988) (employee's self-serving assertions regarding her work ability insufficient to create a genuine issue of material fact as to pretext).
CONCLUSION
For these reasons, Resurrection respectfully requests that the Court reconsider the denial of its motion for summary judgment on Plaintiff's claims for discrimination.