required immediate termination.” Because of this testimony and

because of the alleged campaign by Mr. Upton, Mr. Gissendanner’s
direct supervisor, to have Mr. Gissendanner fired, the question of
what role Mr. Upton played in the decision-making process is one
for the jury to decide.

Similarly, the question of whether Mr. Gissendanner failed to
meet his employer’s alleged reasonable expectations of performance
cannot be answered as a matter of law on this record. Mr.
Gissendanner has raised an issue of material fact which only the
jury may determine. The same holds true of the issue as to whether
Mr. Gissendanner intended to commit insurance fraud, a stated
reason for his discharge.

These are not the only hotly contested issues of material
fact raised by the evidence, but enumerating more or all of them
would be superfluous. Defendants’ motion for summary judgment is

denied.

ENTER_ORDER:

Laie 2 Barth,

Elaine E. Bucklo
United States District Judge

2
Dated: September _, 2005


Gerber argues that Mr. Gissendanner was not meeting his

employer’s reasonable expectations of performance. Mr. Gissendanner
points to the testimony of Kathleen Petrovic who was the office
manager of Gerber’s Halsted Street facility during his employment
there. Ms. Petrovic testified, among other things, to repeated
remarks by Mr. Upton that, if credited by a jury, could easily
uphold findings of pretext and discriminatory animus and intent.
According to Ms. Petrovic, Mr. Upton referred every few days to Mr.
Gissendanner as a “nigger” and as “the black mother fucker”; stated
that he wanted to get rid of him because he was black; and told Ms.
Petrovic to “ride” Mr. Gissendanner and write him up so as to
create a paper trail that would indicate poor work performance.
Defendants rely on the doctrine that statements from a person
who played some role in the employment decision but did not have
ultimate authority to make the decision do not suffice to establish
direct evidence of discrimination. Davis v. Conway Transportation-
Central Express, Inc., 368 F.3d 776, 783 (7th Cir. 2003);
Venturelli v. ARC County Services, Inc., 350 F.3d 592, 600 (7th
Cir. 2003). Defendants argue that only Dan Streeter, Gerber’s
Director of Employment, had authority to terminate Gissendanner,
and that testimony as to Upton’s alleged animus is therefor
irrelevant. However, Streeter testified that both he and Upton
felt based upon what Gerber refers to as “the insurance fraud”, and

which Mr. Gissendanner seeks to prove was not fraud at all, “it


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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ULYSSES S. GISSENDANNER,
Plaintiff,
vs. No. 01 C 5988
THE GERBER GROUP, INC., a/k/a
GERBER AUTO COLLISION AND
GLASS, NEAL GERBER, individually,
and HERB UPTON, individually,

Defendants.

MEMORANDUM OPINION AND ORDER

This action involves employment discrimination claims made
under Title VII, 42 U.S.C. § 2000e et seg. and 42 U.S.C. § 1981.
Plaintiff Ulysses S. Gissendanner was employed as an automobile
collision estimator by Defendant The Gerber Group, Inc., a/k/a
Gerber Auto Collision and Glass (“Gerber”) at Gerber’s Halsted
Street facility in Chicago, Illinois. Mr. Gissendanner sues
Gerber, Neal Gerber, an owner and manager of Gerber, and Herb Upton
(“Upton”), the manager of the Halsted Street facility at the time
of Plaintiff's discharge. Plaintiff is an African-American male. He
claims, inter alia, that because of his race he was discriminated
against insofar as his wages were concerned, continually harassed
by Mr. Upton, and ultimately discharged.

The defendants have moved for summary judgment on both the
Title VII claim and the § 1981 claim. I deny the motion for the

reasons stated below.


Summary judgment is proper if the record shows 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. Fed. R. Civ. P. 56(c).
A genuine issue for trial exists only when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the nonmoving party’s evidence is merely colorable, or is not
significantly probative, summary judgment may be granted. Id. at
249-50. In deciding a motion for summary judgment, I must view all
evidence in the light most favorable to the nonmoving party, Valley
Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th
Cir.}, cert. denied, 484 U.S. 977 (1987), and must draw all
reasonable inferences in the non-movant’s favor. Santiago v. Lane,
894 F.2d 218, 221 (7th Cir. 1990). I may not invade the province
of the jury by making determinations of credibility, weighing
evidence or determining what inferences may be drawn from
admissible evidence. Anderson, 477 U.S. at 255.

This action was filed on August 3, 2001. Defendants argue that
Mr. Gissendanner’s Title VII claim is time-barred because he failed
to file this action within 90 days from receipt of a right to sue
letter sent to him via certified mail by the Equal Employment
Opportunity Commission (“E.E.0O.C.”) on March 15, 2001. The federal
courts hold that proof of proper mailing gives rise to a

presumption of receipt by the addressee. However, where receipt is


categorically denied, it raises a triable of issue of fact. In re:

Longardener & Associates, Inc., 855 F.2d 455, 459 (7th Cir. 1988);
McIntyre v Household Bank, Case NO. 02-C-1537, 2004 WL 2958690
(N.D.I11., December 24, 2004). Here, the defendants offer a
document as proof that the original letter was returned to the
E.E.0.C. as unclaimed, but while the document raises an inference
of attempted delivery and failure to claim within the short period
set by the Post Office, it is not direct evidence of either. Mr.
Gissendanner testified at his deposition that he did not receive
the original letter, and did not know of its existence until May of
2000 when the E.E.0.C. sent him a second letter advising him of the
prior mailing. That is sufficient to raise an issue of material
fact for the jury.

Defendants’ remaining arguments go to the merits of Mr.
Gissendanner’s claims. I find that Mr. Gissendanner has raised
triable issues of material fact with respect to each of the
defenses on which the defendants rely. For example, defendants
argue that Mr. Gissendanner has no evidence of direct
discrimination and that he cannot even prove discrimination
indirectly under the four part test articulated by the Supreme
Court in McDonnell-Douglas v. Green, 411 U.S. 792, 802 (1973). I
disagree. Looking only at evidence of direct discrimination, it is

clear that Mr. Gissendanner can present a prima facie case.