issue of material fact exists “only if there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.” Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir.
1999), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Sufficient supporting
evidence, not mere allegations of an existing factual dispute, must be presented by the nonmoving
party to support a verdict in his favor. Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001).

Further, the Seventh Circuit has recognized that courts must apply the summary judgment
standard with rigor in employment discrimination cases because “motive, intent and credibility are
crucial issues.” Crim v. Bd. of Educ. Of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998).
Nonetheless, noting that employment discrimination cases are not governed by a separate rule of
civil procedure, the Seventh Circuit recognizes that summary judgment may be appropriate in such
cases so long as there is no genuine dispute as to the material facts. See Wallace v. SMC
Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997).
B. Alicea’s Claims of Sex Discrimination

Section 703(a) of Title VII of the Civil Rights Act of 1964, as amended, provides that “{it
shall be an unlawful employment practice for an employer. . . to discharge an individual . . .
because of such individual's race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1).
In this case, Alicea bears the burden of establishing that Northwest discriminated against her. She
may do so under the “direct method” either by presenting evidence which, if believed by the finder
of fact, “will prove the particular fact in question without reliance upon inference or presumption,”
or by offering circumstantial evidence that establishes a “convincing mosaic” of discrimination.
Volovsek v. Wisconsin Dep't of Agriculture, Trade and Consumer Protection, 344 F.3d 680, 689
(7th Cir.2003); Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir.2003). Alicea does not claim
to have any evidence of discrimination supporting the direct method of proof and must therefore

proceed under the familiar McDonnell Douglas burden-shifting analysis. McDonnell Douglas Corp.

13



Labor Day weekend and she responded that she could.’ (Def’s 56.1 ff] 19, 20; Alicea Dep., at 85-
86.)

Alicea contends, however, that after learning that Luttenbacher's secretary was out on leave
(Alicea does not say when she became aware of this), she realized that she could not complete the
payroll without working overtime on Sunday, September 2. (PI's 56.1 {| 5; Alicea Aff. at 77.) Inher
affidavit, Alicea asserted that the secretary's absence resulted in additional work for her, which in
turn affected her ability to finish the payroll in a timely fashion. (Alicea Aff. § 7.) Defendant denies
these statements as inconsistent with Alicea’s deposition testimony. (Defendant's Responses to
Plaintiff's Statement of Uncontested Facts Pursuant to Rule 56.1 9[5, hereinafter, “Def’s Responses
to 56.1.”) The deposition transcript does not contain an explicit question regarding any additional
duties brought on by the secretary's leave, but the court notes that Alicea testified at length about
that weekend and did not mention the secretary's absence. (Alicea Dep., at 78-86.)

Luttenbacher came into work that Sunday and asked Alicea why she was there. (Def’s 56.1
1 21; Alicea Dep., at 80; Termination Letter.) Alicea responded that she decided to do payroll but
told Luttenbacher she would not put in the time to be paid for it. (Def's 56.1 {| 22; Alicea Dep., at
80-1.) Luttenbacher responded, “If you work, | will pay you for it,” and then reminded Alicea that all
extra hours needed to be approved by management. (Def. 56.1 {[ 22; Alicea Dep., at 81.) Alicea
worked the day, put in for the time, and was paid for it. (Alicea Dep., at 81.) She contends that
John Kasper had authorized her to come in during the Labor Day weekend and complete the payroll,
and that Kasper “knew | was there,” Alicea Dep., at 79), but she admits she did not tell Luttenbacher
that John Kasper had approved her weekend work.

On December 6, 2001, Luttenbacher noticed certain discrepancies in Alicea’s time entries

1 Although it is not clear from the record, the court presumes that Luttenbacher was
referring to the Tuesday after Labor Day, Tuesday, September 4. Neither party explains why
Luttenbacher instructed Alicea to finish payroll after the deadline of Sunday, September 2,
requested by the payroll department.


herself, Alicea offers no evidence that Luttenbacher did not honestly believe the reasons he gave
for her discharge. Plaintiff also cites Lawson v. CSX Transp., Inc., 245 F.3d 916, 931 n. 13 (7th
Cir. 2001), where the court noted that an employer's shifting explanations for its refusal to hire a
disabled worker can support the conclusion that those stated reasons are pretexts for
discrimination. Here, in contrast, Northwest has never wavered in its position that Alicea’s abuse
of time and improprieties in time records were the basis for her discharge. Alicea asserted in her
deposition that, in her view, “the punishment doesn’t fit the crime” — that is, that her wrongdoing
was not so grave as to warrant termination from her lengthy employment with Northwest.
Northwest's Rules of Conduct state, however, that falsification of time records justifies immediate
termination. As is often observed, the court is not a “superpersonnel department” and has no
authority to review the wisdom of a personnel policy or the propriety of a defendant’s business
decision. Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000).
CONCLUSION

The evidence does not establish a prima facie case of sex discrimination. If it were to reach
the issue, the court would find that Plaintiff has not met her burden of establishing that Northwest's
stated reasons to discharge her were pretext for discrimination. Defendant’s motion for summary
judgment (Doc. No. 16-1) is granted.

ENTER:

Dated: September 24, 2004 Dele co CR hp
REBECCA R. PALLMEY' RY]
United States District ige

17



Responses to Def.’s 56.1 J] 25-26, 38; Alicea Aff. I] 9, 13-14.) In her testimony, Plaintiff identified
the following dates on which she claims members of management saw her at work or spoke to her
on the phone while she was at work: September 2, November 3, November 24, and December 1
of 2001. (Alicea Dep., at 90-91. ) Alicea also explains that she did not punch in and out on the
weekends pursuant to a policy under which stated an employee would receive pay for eight hours,
even if she only worked four on weekend days. (PI.’s Responses to Def.’s 56.1 {| 39; Alicea Aff.
9.)°

Defendant denies any such policy exists, (Def. Reply Memorandum in Support of its Motion
for Summary Judgment, at 8 (hereinafter, “Def's Reply’), and the court agrees with Defendant that
the record submitted by Plaintiff does not indicate any evidence, other than Alicea’s own
statements, of such a policy.’ In her deposition, Alicea explained that for certain extracurricular
events, such as training sessions or CPR classes, employees would be paid for eight hours when
those activities actually took fewer hours. (Alicea Dep., at 58, 62-63, 68.) She also testified that
employees who were sick or injured could receive eight hours pay even if they actually worked
fewer hours; Plaintiff herself benefitted from this practice on one occasion. (Alicea Dep., at 73-76,
123-125.) Defendant admits that empioyees on special off-site assignments, such as CPR training
or road trips, were not required to swipe their badges and were allowed to have their time manually
entered. (Def's Responses to PI's 56.1 2.) Northwest notes, further, that Alicea acknowledged
in her deposition that employees paid for eight hours when actually working fewer under those

circumstances had management authorization to do so. (/d.; Alicea Dep., at 58-69.)

8 Alicea did not explain how such a policy would excuse a worker from punching in
and out on weekend days.

7 She identified Ken Lewis as a Northwest employee who had knowledge of the
purported practice of paying an employee for eight hours even if he/she had worked only four hours
(Alicea Dep., at 139-140), but she has not offered a statement from Lewis (or any other Northwest
Official) confirming her assertions about this policy.

9



Dep., at 52; Termination Letter.) Luttenbacher questioned Alicea about this discrepancy (apparently
on December 6) and, according to her testimony, she claimed it was a typographical error. (Alicea
Dep., at 52-3.) Luttenbacher, however, claims that Alicea initially told him she had worked until 1:30
that day, until he reminded her of a voicemail from that day indicating she already left at 12:45; at
that point, according to Luttenbacher, Alicea told him she must have made the entry by mistake.
(Luttenbacher Aff. {| 9.) Following his discovery of these discrepancies, Luttenbacher further
reviewed Alicea’s payroll records and discovered she had worked and was paid for twelve weekend
days between September and December 2001, but only had manager approval for two of those
days. (/d. at | 11.)

Based on the discrepancies in Plaintiff's time records, Luttenbacher conducted an interview
with her on December 7, pursuant to Northwest's information gathering policies, using a set of
written questions that both Luttenbacher and Plaintiff signed. The parties refer to this interview
session, and to the document, as “Q and A.” (Def. 56.1 {IJ 33-4; Luttenbacher Aff. ] 12; Alicea
Dep., at 88; Q and A for Tina Alicea, Ex. G to Def.'s 56.1, hereinafter, “Q and A form.”) Jerry Cross,
a union representative, was present on Alicea’s behalf, and Paul Paraskevopoulas was present as
a witness for Northwest. As reflected in the Q and A form, Alicea admitted working twelve weekend
shifts when management had only approved two of those days. (Def. 56.1 | 38; Q and A form.)
Inher deposition testimony and later affidavit, however, Alicea contended that there were numerous
times that managers saw her at work or spoke to her on the phone on the days in question. (Alicea
Dep., at 89-93; Alicea Aff. ] 14.) Because those managers did not send her home, Alicea inferred
she had permission to be at work. (Alicea Dep., at 89-90; Alicea Aff., ] 13.)

In addition, on several days which Alicea manually recorded she had worked, security

records did not show that she had actually entered the airport. (Def. 56.1 {| 41.) At the December

3(...continued)
of the payroll records.


and observed that she had made many entries manually, without management permission.” (Def.
56.1 124; Luttenbacher Aff. 6.) First, for December 1, 2001, the time records showed that Alicea
had made a manual entry showing that she worked from 6:00 a.m. to 10:00 a.m. (four hours), with
coding that indicated pay for eight hours. (Def. 56.1 {J 25-26; Alicea Dep., at 55, 57-8.) Alicea
contends that manager John Kasper had approved her working that Saturday, December 1, 2001.
(Alicea Dep., at 57, 59.) She also contends that coding herself for eight hours of pay was an
acceptable past practice within Northwest. (Pl’s 56.1 9] 7; Alicea Dep., at 58-9.) Northwest denies
this claim (Def’s Responses to Pl.’s 56.1 {| 7), noting that it contradicts Aticea’s deposition, where
she testified that the practice of paying employees for eight hours when they actually worked fewer
hours was limited to circumstances such as injuries or illness, training, travel or other special
activities (none of which are at issue here). (Def's Responses to Pl.’s 56.1 {| 7; Alicea Dep., at 57-
64-65, 67-69.)

Asecond discrepancy in the December 1, 2001 pay records was that Alicea coded her time
for that day as a Trade Day Worked. (Alicea Dep., at 61.) A “Trade Day Worked” is a reference
to circumstances in which Northwest allows an employee to work a Saturday or Sunday and trade
that weekend day for a weekday on which she did not work and did not receive pay. (Luttenbacher
Aff. 1 8.) Alicea coded December 1, 2001 as a Trade Day Worked in exchange for Thursday,
November, 29, 2001, but she had already been paid for that Thursday. (Alicea Dep., at 61.)

A third payroll records discrepancy involved Alicea’s December 3, 2001 entry. (Def.’s 56.1

7129.) Alicea had left work at 12:30 p.m. that day but manually clocked out at 1:30 p.m.° (Alicea

2 Luttenbacher claims that on December 6, he and Alicea were reviewing all employee
payroll records for discrepancies. (Luttenbacher Aff. 6.) Alicea denies her records were reviewed
and asserts that.no time sheets were discussed during this meeting. (PI. Response to Def. 56.1
1.24; Alicea Aff. at | 8.) She does not challenge Defendant's assertions regarding the time entries,
however.

3 Neither party explains how Luttenbacher detected this discrepancy from a review

(continued...)



Monday and wouid not charge the Company.

| stated that if you work you should be paid, but all extra hours should be approved
through management.

Upon a review of your PACE records, you have entered time for 12 weekend shifts
since our discussion in September and management has only approved two. A
further review shows numerous weekend shifts worked without management
permission resulting in 8 hours of additional pay for only 4 hours of work on each of
those weeks.

Based on the above facts you have violated the following Rules of Conduct For
Employees of Northwest Airlines: Rule 33 (Time Cards and Other Records). You
knowing [sic] entered time in PACE that you did not work, worked on days that you
were not authorized to work, and entered trade days worked without a trade day off.

Be advised that each of the above-referenced charges, standing alone, constitute
sufficient cause for your termination.

(Termination Letter, Ex. E to Def's 56.1.)
At her deposition, Plaintiff acknowledged the truth of the charges in the Termination Letter.>
In this lawsuit, however, she contends that Northwest managers on duty saw her at work on the

weekends and did not send her home, which she interpreted as permission to be there. (PI.’s

5 Specifically, Alicea testified as follows:

Qa The last paragraph on the first page of the December 11th letter says,
“Upon a review of your PACE records, you have entered time for two (sic)
weekend shifts since our discussion in September, and management had
approved only two.” Was that correct?

Yes.

Then it says, “A further review shows numerous weekend shifts worked
without management permission resulting in eight hours of additional pay for
only four hours of work on each of those weeks.” Was that correct?

Yes.

The.next page says that you —says, “You have violated the following Rules
of Conduct for Employees of Northwest Airlines: Rule 33 (Time Cards and
Records).” Was that correct?

Yes.

It says, “You knowing - | think you meant knowingly - entered time in PACE
that you did not work, worked on days that you were not authorized to work,
and entered trade days worked without a trade day off.” Was that correct?
A: Yes.

Oe OP

OF

(Alicea Dep., at 86-7.)



Minute Order Form (06/97)

Yo\9 United States District Court, Northern District of Illinois

N: if 1d Sitting Judge if Oth
ede Magioate Tod Rebeggt R, Pallmeyer than Assigned Judge
CASE NUMBER rr 02 € 7212 DATE 9/24/2004
CASE Tina Alicea vs. Northwest Airlines, Inc.
TITLE

MOTION:

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) stat
of the motion being presented. ]

¢ briefly the nature

(10)

qd)

a
- va

DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above.]

(2) QO Brief in support of motion due.

(3) Q Answer brief to motion due. Reply to answer brief due

(4) oO Ruling/Hearing on____sset for__aat

(5) Oo Status hearingfheld/continued to] {set for/re-set for]on___—setfor______ at

(6) a Pretrial conference[held/continued to] [set for/re-set for]on__—_—setfor__—s—at_.

(7) Qa Trial[set for/re-set for]on____at

(8) Qo [Bench/Jury trial] [Hearing] held/continuedto___at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) OlLocal Rule 41.1 OCOFRCP41(a)(1) (1 FRCP41(a)(2).

| [Other docket entry] Enter Memorandum Opinion And Order. Defendant’s motion for summary

judgment ( Doc. No. 16-1) is granted.

a [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2

No notices required. ber of notices
number of not

Document
Number

Notices mailed by judge’s staff. SEP 2 % 2004

Notified counsel by telephone.

dave docketed

Docketing to mail notices.

Mail AO 450 form.

docketing deputy initials

Copy to judge/magistrate judge.
onai2004

flo

courtroom dato mailed novice

ETV deputy's
initials

ETV

+ onys sDage/time.reeqived in ;
centtal Clerk's Office mailing deputy initials



Northwest notes that Decaluwe was not a similarly situated employee. (Def. Responses to PI.’s
56.1 | 17; Luttenbacher Aff. 11] 2-6, Ex. 2 to Def’s Motion for Summary Judgment.) In fact, Mr.
Decaluwe has a different job title, reports to a supervisor in Minneapolis, and only reports to
Luttenbacher regarding training matters. (Luttenbacher Aff. ff] 3-4, Ex. 2 to Def's Motion for
Summary Judgment.) Luttenbacher asserts that he is unaware of Mr. Decaluwe ever working
overtime without permission, ever falsifying time records, or ever accepting pay for time he did not
work. (/d. at {| 5-6.)

Plaintiff also identifies Bill Zawadski, Luttenbacher's secretary, as a male coworker who
received more favorable treatment. According to Alicea, Zawadski regularly worked weekends
under Luttenbacher’s predecessor, (PI.’s 56.1 {| 17; Alicea Aff. {| 18), and often came in late and
left early under previous managers as well as under Luttenbacher. (Alicea Dep., at 130-33.) Alicea
claims that sometimes Zawadski had permission for such actions and sometimes he did not. (/d.
at 132-33.) She testified that Zawadski received permission to work fewer than eight hours when
he injured his ankle. (/d. at 73.) She also asserted in her affidavit that she had on occasion
swapped weekend shifts with Zawadski. (Alicea Aff. ] 18.)

Another male employee who allegedly received more favorable treatment was John
Pitsafferrato. Alicea testified that Mr. Pitsafferrato owned a snow plowing business and would snow
plow the parking lot on company time. (Alicea Dep., at 69.) According to Alicea, with the approval
of supervisor Jim Davis, Pitsafferrato received a paycheck for working a full eight hours, as well
as a separate paycheck for his snow plowing work, even when the snow plowing took place during
Pitsafferrato’s regular eight-hour shift. (/d. at 70.) Alicea did not explain when this practice
occurred.

Plaintiff also named other female coworkers, Caro! Cullen and Joan Andreoni, who she
claims were paid for more hours than worked and were not terminated. Plaintiff testified that
approximately six years earlier, Ms. Andreoni would occasionally arrive late or leave early. (/d. at

1


B. Alicea’s Post-Termination Actions

Alicea filed a grievance with the union in accordance with the CBA on December 12, 2001.
(Alicea Dep., at 106; Def.’s 56.1 ] 48.) At the grievance hearing on December 20, 2001, Alicea
admitted that she had made a mistake and that she knew right from wrong but asked for a “last
chance agreement.” (Alicea Dep., at 107-8; Def.’s 56.1 | 49.) A “last chance agreement” is an
agreement between Northwest and a terminated employee giving the employee one last chance
to correct his behavior but providing that the employe3 will be subject to immediate termination if
he commits any further violations in a certain time period. (Luttenbacher Aff. | 16.) Alicea’s
grievance was denied. (Alicea Dep., at 109-111; Def. 56.151.) Inher affidavit, Alicea claims that
she made the comments at the grievance hearing regarding making a mistake and knowing right
from wrong on the advice of her union representative, who told Alicea she would be reinstated if
she did so. (Pl.’s 56.1 J] 15; Alicea Aff. | 16.)
ion Alicea’s Allegations of Sex Discrimination

Plaintiff contends that her termination on the basis of discrepancies in her time records
constitutes sex discrimination. She asserts that male coworkers guilty of similar offenses were
treated more favorably. Specifically, Plaintiff names Stan Decaluwe, an Inspector/Trainer, who

worked overtime without permission and was not terminated. (PI.’s 56.1 1 17; Alicea Aff. J] 18.)°

8 Northwest contends this statement is inadmissible, as it contradicts Alicea’s
deposition, in which she was unable to recall the names of any employee who worked unauthorized
overtime but was not fired. (Def.’s Responses to Pl.’s 56.1 | 17.) As the Seventh Circuit has
explained, “[a] party may not create a genuine issue of material fact by contradicting his own earlier
statements, at least without a plausible explanation for the sudden change of heart.” Unterreiner
v. Volkswagen of America, Inc., 8 F.3d 1206, 1210 (7th Cir. 1993) (citing Richardson v. Bonds, 860
F.2d 1427, 1433 (7th Cir. 1988).) “[W]here deposition and affidavit are in conflict, the affidavit is
to be disregarded unless it is demonstrable that the statement in the deposition was mistaken.”
Adusumilli v. City of Chicago, 164 F.3d 353, 360 (7th Cir. 1998) (quoting Russell v. Acme-Evans
Co., 51 F.3d 64, 67-68 (7th Cir. 1995).) Alicea did mention Decaluwe’s name at her deposition,
but only as an employee who was permitted to leave early due to a family emergency, and was
paid pursuant to.the instruction of supervisor Jim Davis. (Alicea Dep., at 120.)

10



7 session, Luttenbacher asked Alicea whether she had swiped her security badge upon entering and
leaving the airport on certain days in question. She answered that she did so on December 3, 2001
only on the way in, but did not swipe her badge at her exit that day or on other days in question.
Alicea refuted any allegation of not being at work on certain days by explaining that a friend at the
gate regularly waved her in without having to swipe a badge.‘ (PI. Responses to Def.’s 56.1 | 41;
Alicea Aff. 15.) The court notes that Alicea did not offer this explanation to Luttenbacher when
he initially asked her about the manual entries in her records. (Luttenbacher Aff. 910.) Instead,
she asserted this justification in her later affidavit, dated October 16, 2003. (Alicea Aff. §] 15.)
Plaintiff was suspended on December 7, 2001 after the interview session and was
terminated on December 11, 2001. (Def's 56.1 If] 45-46.) Luttenbacher terminated Alicea on
December 11, 2001 because she knowingly recorded time in the payroll system that she did not
work, worked weekends without manager authorization, entered trade days worked without a trade
day off, and accepted pay for time she did not work. (Def.’s 56.1 {1 46-7; Termination Letter.)
Relevant portions of the Termination Letter from Luttenbacher to Alicea include the following:
The reasons for your discharge are as follows:

On December 3, 2001 you left work at 12:30pm - when your PACE records were
reviewed, you manually clocked yourself out at 1:30pm.

On Saturday December 1, 2001 you did not have permission from a manager to be
at work, yet stated you worked from 6:00am to 10:00am although you did not punch
in or out. In addition, you coded yourself paid for 8 hours. You stated that you did
this based on past practice. | have reviewed this with your previous managers and
they were not aware of any special arrangements. You coded your time as a Trade
Day Worked (TDW) and stated it was for Thursday, November 29, 2001. You were
already paid for that day when you used a Birthday Holiday.

When | first started at ORD, | made it clear that any overtime would need to be
approved through management. On Sunday, September, 2, 2001 | saw you at work
and questioned why you were there. You stated you had to finish some things for

4 The Plaintiff does not offer much explanation about what it means to be “waved in”
but the court presumes Plaintiff could get into the airport without swiping her security badge,
thereby leaving no electronic record of her entrance and exit.

7


Airlines. (Def’s 56.1 {| 15; Alicea Dep., at 27.) Among those rules was an absolute prohibition on
the alteration or falsification of time cards and the submission of false information. (Def's 56.1
16; Rules of Conduct for Employees of Northwest Airlines, Ex. F to Def's 56.1 (hereinafter,
“Rules”), Rule No. 33.) The Rules state that falsification of records is a serious offense that justifies
immediate discharge. (Def's 56.1 | 17; Rules, General, at 2.)

Soon after he took on his management duties, in May 2001, Dave Luttenbacher made an
announcement in the maintenance managers' room in which he explained that all overtime work
had to be approved by management. (Alicea Dep., at 76-78; Termination Letter from Luttenbacher
to Alicea, dated December 11, 2001, Ex. E to Def's 56.1, hereinafter, “Termination Letter.”) Alicea
admits that she was present for this announcement, though she points out that Luttenbacher was
not speaking directly to her, and was instead addressing a group of people. (Alicea Dep., at 77-78;
Alicea Aff. 1] 5.)

Alicea was familiar with the overtime forms and had used them in the past. (Alicea Dep.,
at 102-106.) Luttenbacher stopped using those overtime forms, (Alicea Aff. 6; PI's 56.1 | 4;
Luttenbacher Dep., at 22), in order to “save a tree” and instead, as he testified, relied directly on
the employee's time sheet. (Luttenbacher Dep., at 22.) Luttenbacher did not explain what
information in the employee's time sheet would indicate that overtime had been approved, but he
testified that an employee's overtime work “would have shown up as time worked, but ! would have
known about it.” (/d.)

A. Events Leading to Alicea’s Termination

Due to the Labor Day Holiday in 2001, the payroll department requested that clerical staff

submit payroll records early, by Sunday, September 2, 2001. (Def. 56.1 {J 18; Alicea Dep., at 79,

83.) Luttenbacher asked Alicea if she could do it all on Tuesday and avoid working overtime that


v. Green, 411 U.S. 792 (1973).

Under that indirect method, Alicea can establish a prima facie case of discrimination by
proving that (1) she is a member of the protected class; (2) she was performing at a level that met
Northwest's legitimate expectations; (3) she was subject to an adverse employment action; and (4)
she was treated differently than a similarly situated male employee. Volovsek, 344 F.3d at 690,
(citing Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 897 (7th Cir. 2003) and Stone v. City of
Indianapolis Public Utilities Div., 281 F.3d 640, 642 (7th Cir. 2002).) If Alicea succeeds in making
out a prima facie.case, the burden shifts to Northwest to articulate a legitimate, non-discriminatory
explanation for her termination. If such a reason is offered, Alicea bears the ultimate burden of
showing that it is a pretext for discrimination. It is insufficient “for the employee to show that the
employer acted incorrectly or undesirably” by firing her; instead, “the employee must show that the
employer did not honestly believe in the reasons it gave” for the adverse decision. Wolf v. Buss
(America) Inc., 77 F.3d 914, 919 (7th Cir.1996).

Because it is undisputed that Plaintiff is a member of the protected class under Title VIi, the
court begins by considering whether or not she was performing at level that met Northwest’s
legitimate expectations. If a plaintiff fails to demonstrate that she was meeting her employer’s
legitimate employment expectations at the time of her termination, the employer may not be “put
to the burden of stating the reasons for [her] termination.” Coco v. Elmwood Care, Inc., 128 F.3d
1177, 1179 (7th Cir. 1997).

Until Luttenbacher discovered the discrepancies in Alicea’s payroll records, he considered
her a good employee. Luttenbacher’s opinion changed when he discovered Alicea had worked
numerous hours of overtime without his express authorization. Upon further examination,
Luttenbacher discovered multiple misrepresentations in her time sheets, including receiving pay
for eight hours when working only four hours, and manual time entries that overstated the time
Alicea actually worked. Luttenbacher followed Defendant's procedure in scheduling a “Q and A”

14


Plaintiffs misrepresentations in pay records and her admitted violation of Northwest's Rules of
Conduct, the court concludes that she has failed to show that at the time of her termination she was
meeting Northwest's legitimate expectations.

If the court were to construe these violations as Northwest's articulated reason for her
discharge, Plaintiff might attempt to suggest that the reason is pretextual; on this record, any such
argument would have little traction. To establish that a similarly situated male employee was
treated more favorably, a plaintiff must ordinarily demonstrate that she and the male employee
“dealt with the same supervisor, were subject to the same standards, and had engaged in similar
conduct without differentiating or mitigating circumstances as would distinguish their conduct or the
employer's treatment of them.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-8 (7th Cir.
2000). Long after her deposition testimony, Alicea recalled that Stan Decaluwe worked overtime
without permission. Decaluwe, who had a different job title (he was an Inspector/Trainer), and
worked under both Luttenbacher and another supervisor located in Minneapolis, is not similarly
situated to Alicea, nor did she explain when it was that Decaluwe worked unauthorized overtime.
Alicea also asserts that Bill Zawadski is another similarly situated employee, but her assertions
about Zawadski all involve conduct that allegedly took Place under the supervision of a prior
supervisor, Luttenbacher's predecessor. By her own testimony, two of the three other workers
Plaintiff identified—John Pitsafferrato and Joan Andreoni-had management approval for receiving
additional pay. In any event, Carol Cullen and Andreoni are both female, so Northwest's alleged
more favorable treatment of them would not create an inference of sex discrimination. Nor has
Plaintiff presented evidence that any of her purported comparatives had falsified any records. Cf.
Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 1995) (the fact that plaintiff calls into question
one of the employer's articulated reason for adverse action “does not defeat summary judgment
if at least one reason for each of the actions stands unquestioned.”)

As in Schuster v. Lucent Techs, Inc., 327 F.3d 569 (7th Cir. 2003), a case cited by Plaintiff

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3:00 a.m. to 11:00 a.m. or 4:30 a.m. to 12:30 p.m. (Defendant's Rule 56.1 Statement of
Undisputed Material Facts (hereinafter, “Def's 56.1") | 16, 7; Luttenbacher Aff., Ex. C to Def's
56.1, | 4.) Plaintiffs job duties including processing of payroll. (Complaint 15.) Dave
Luttenbacher, Line Maintenance Operations Manager, became Alicea’s direct supervisor in April
2001. (Def’s 56.1 {| 11; Luttenbacher Aff. § 3; Alicea Dep., Ex. B to Def.’s 56.1, at 49.) Plaintiff
contends, however, that John Kasper and Mike Tempe, also managers, were “also able to lead and
direct” Plaintiffs work. (Plaintiffs Statement of Uncontested Facts Pursuant to Rule 56.1,
hereinafter, “Pl’s 56.1," {| 1; Alicea Aff. 3, Ex. 1 to Pl’s 56.1.) Plaintiff testified that these
managers had authority to authorize overtime for her, and Luttenbacher’s deposition testimony
suggests that they did. (Alicea Dep., at 155; Luttenbacher Dep., Ex. 2 to Plaintiffs Response to
Defendant's Motion for Summary Judgment (hereinafter, “PI's Response”), at 15.) Luttenbacher
testified, however, that when Mr. Kasper authorized Alicea to work overtime, he would report that
to Luttenbacher. (Luttenbacher Dep., at 21.)

Plaintiff's responsibilities included “maintaining and updating computer databases;
processing labor-related information; monitoring departmental issues to ensure compliance with
federal regulations; handling customer problems; auditing certain paperwork; participating in
special projects; training others on departmental procedures and systems; and maintaining,
updating and providing technical data to support aircraft maintenance.” (Def's 56.1 ]9; Alicea Dep.,
at 24; Job Description, Ex. D to Def's 56.1.) Plaintiff's responsibilities also included replacing old
pages with new pages in aircraft maintenance manuals. (Def's 56.1 {] 10; Alicea Dep., at 43, 55-7.)
Prior to December 6, 2001, Luttenbacher considered Plaintiff a “good employee.” (PI.’s 56.1 9] 24;
Luttenbacher Dep., at 9.)

A collective bargaining agreement (“CBA”) between Northwest and the International
Association of Machinists (“Union”) governed Plaintiff's employment. (Def's 56.1 {| 8; Alicea Dep.,
at 17-18.) Plaintiff was also subject to Northwest’s Rules of Conduct For Employees of Northwest

2


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TINA ALICEA,

DOCKETED
SEP 2.7 2004

Plaintiff,
v. No. 02 C 7212

NORTHWEST AIRLINES, INC., Judge Rebecca R. Pallmeyer

Defendant.

MEMORANDUM OPINION AND ORDER

Tina Alicea (‘Alicea or “Plaintiff?) was an employee of Defendant, Northwest Airlines, Inc.
(‘Northwest” or “Defendant”) from 1977 until she was terminated on December 11, 2001.
Defendant asserts Plaintiff was terminated for violating Northwest's Rules of Conduct by working
overtime without permission, falsifying time records, and accepting pay for hours she did not work.
Plaintiff admits submitting time records that overstated the hours she actually worked, but claims
this was common practice at Northwest. She also claims management personnel either gave her
permission to work the overtime hours in dispute, or witnessed her working overtime and did not
send her home. Finally, Plaintiff contends other male employees who engaged in the same
practices were not fired. Plaintiff filed this action, claiming that she was discriminated against
based on her gender in violation of 42 U.S.C. § 2000e-2(a)(1). Defendant moves for summary
judgment and, for the reasons set forth here, the motion is granted.

FACTUAL BACKGROUND

The following facts are taken from the parties’ Rule 56.1 Statements and Responses, as
well as other evidence in the record.

Tina Alicea began working for Northwest Airlines in the air freight center as a secretary in
1977. (Complaint fj 12.) In 1986, Plaintiff became a Work Control Clerk, performing administrative

work in the aircraft maintenance department; her regular shift was Monday through Friday, from



70-72.) Plaintiff acknowledges that former manager Richard Stachura approved Ms. Andreoni’s
practices. (/d. at 72.) In 2001, Ms. Cullen was a stockroom employee reporting to Dave
Luttenbacher who left work early on occasions for medical treatment but was paid for eight hours.
(Id. at 123-4.) Alicea acknowledged that these departures were authorized by the union contract,
but asserted that Ms. Cullen should have returned to work after her appointments. (/d. at 124.)
The court notes that during her deposition testimony, Plaintiff admitted Luttenbacher did not

discriminate against or treat her unfairly because of her sex. She testified:

Qa Did he [Luttenbacher] ever demonstrate hostility towards you?

A: No.

Qa Did he ever treat you unfairly?

A No.

Q: Did you ever feel he was out to get you?

A: No.

Q: Do you feel he is a truthful person?

A: Yes.

Q: Did he ever make any statement or take any action that would indicate that
he was prejudiced in any way?

A No.

Q: Did he ever discriminate against you because of your sex?

A: No.

(Alicea Dep., at 50.) In her affidavit, Plaintiff disavows this testimony, explaining that she was
referring only to the time during her employment with Northwest. After her suspension, she
contends, she was. subjected to discrimination and unfair treatment.
DISCUSSION

A. Summary Judgment Standard

Summary judgmentis appropriate “ifthe pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.” Fep. R. Civ. P.
56(c). The party seeking summary judgment carries the initial burden of demonstrating the lack

of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine

12



session and allowing Alicea to answer his accusations. At the Q and A session, Alicea admitted
to misrepresenting her time records. She also admitted to working overtime without express
authorization from her supervisors. These admissions defeat a finding that Alicea performed her
job satisfactorily and to her employer's legitimate expectations.

Plaintiff asserts that on all of the days she worked overtime without express authorization,
Northwest managers saw her working or spoke to her on the phone, but never sent her home.
(Alicea Aff. {| 14; Alicea Dep. at 90-92.) Even construing these circumstances in a light most
favorable to Plaintiff, the court concludes they do not create a dispute of material fact. Plaintiff has
not suggested that her own manager, Dave Luttenbacher, observed her working on weekend days
but took no action. Nor has she explained how other managers who observed her at work would
have known that she had not been approved for overtime. Plaintiff herself clearly understood that
such approval was required; her conduct on Sunday, September 2, 2001 confirms this. When
Luttenbacher ran into her at work that day and questioned her being there, she told him she would
not seek to be paid for her time that day. Luttenbacher chose to approve payment for that day, but
reminded her again of the need for authorization for overtime work.

Although Plaintiff focuses on the issue of unauthorized overtime, the court notes that she
has not responded to some of the other charges of misuse of time and falsification of records. She
made manual time records and recovered pay for several days on which there were no electronic
records of her presence at the airport. Either purposefully or mistakenly, she created a record that
indicated. she worked until 1:30 on December 3, though she left work one hour earlier. She
recorded December 1 as a “Trade Day’ for a day on which she had not worked, but had already
been paid. She turned in time records seeking eight hours’ pay for four hours’ work; she contends
this was consistent with Northwest policy, but Northwest denies such a policy exists, and Plaintiff's
own testimony indicated it was limited to situations in which an employee was involved in training,
was on a road trip, or was suffering from illness or injury. Given the overwhelming evidence of

15