employment action against the plaintiff even if [it] has no retaliatory motive.” Jd. Alternatively,
Salamanca may prove her claim under an adaptation of McDonnell Douglas by showing that “after
filing the charge only [sJhe, and not any similarly situated employee who did not file a charge, was
subject to an adverse employment action even though [s]he was performing [her] job ina satisfactory
manner.” /d. If she succeeds in this showing, Robert Half may prevail on its motion for summary
judgment if it “presents unrebutted evidence of a non-invidious reason for the adverse action.” Id.

Although Salamanca relies on the McDonnell Douglas burden-shifting method to establish
her retaliation claim, she fails to establish she was fired for engaging in protected activity while
similarly situated employees who did not file a charge were allowed to keep their jobs. As an initial
matter, Salamanca’s complaints to Moran about Anderson were not protected activity. In her
complaints, Salamanca never suggested to Moran that she was treated differently by Anderson
because of her race or national origin. See Pl. Facts at { 120. See also Pl. Resp. to Def. Facts at f
140 (Salamanca admits that “[t]he letter to Moran does not allege that Anderson was ‘discriminatory’
or was discriminating against [her] on the basis of her being Hispanic or Mexican American”).
Without evidence that she notified Robert Half during her employment of any possible
discrimination, Salamanca cannot establish that she engaged in protected activity. See Driver v.
Arbor Management, Inc., No. 00 C 3933, 2001 WL 1183291, at *1 (N.D. Ill. Oct. 5, 2001)("By
definition, the complaints at issue are not statutorily protected expression--for that purpose the
expression must at least suggest to the employer (if not state outright) that the employee reasonably
believes that she is being treated in a discriminatory manner because of her race or other protected
classification").

Even if her complaints constituted protected activity, Salamanca fails to identify a similarly
situated employee who did not complain about discrimination, but was allowed to keep their job.

To the contrary, Salamanca’s only alleged comparative, Heisler, signed the letter to Moran along

13


B. Salamanca’s Motion to Strike

Salamanca moves to strike Robert Half’s argument, including its underlying factual
statements, regarding the reasons for her termination. If Salamanca cannot prove a prima facie case
of discrimination or retaliation, her motion is moot. Salamanca’s motion must be considered in the
context of Robert Half’s legitimate, nondiscriminatory reasons if she is able to establish a prima
facie case of discrimination or retaliation.

I. Facts

All facts are undisputed unless otherwise noted. Robert Half is a staffing service company
that provides clients with temporary and permanent employees in several areas, including
administrative staffing, accounting, legal, information technology, management consulting and
graphic design. Salamanca, who is Hispanic, worked for Robert Half as a receptionist. During the
relevant time period, Salamanca’s direct supervisor was Anderson, who in tum reported through the
branch manager to Moran.

As a receptionist, Salamanca sat at the front desk where she greeted new applicants and
clients and gave applicants appropriate forms. Salamanca also maintained computerized records of
employees and processed application forms for her assigned divisions. To process an application
form, Salamanca was required to “shell” or enter basic information from the application forms as
well as the applicant’s I-9 and W-4 forms. Once Salamanca completed the shelling process, she
would place the application in a routing bin and send the I-9 and W-4 forms to Robert Half’s Field
Service Center in Buffalo Grove, Illinois.

On December 22, 2000, Anderson gave Salamanca a good performance evaluation. Based
on her performance review, Anderson gave Salamanca the new title of “front desk coordinator.”
Anderson’s recommendation for a salary increase for Salamanca was approved.

On August 27, 2001, Anderson received a three inch stack of incomplete I-9 and W-4 forms

from Field Service Center. The incomplete I-9 and W-4 forms were for candidates for one of



expectations; (3) she suffered an adverse employment action; and (4) the employer treated similarly
situated employees outside the class more favorably. Foster v. Arthur Andersen, LLP, 168 F.3d
1029, 1035 (7th Cir. 1999). Robert Half argues that Salamanca cannot establish a prima facie case
of race or national origin discrimination. Although Robert Half does not seriously dispute
Salamanca can prove the first” and third? elements of a prima facie case, Robert Half claims
summary judgment is appropriate because Salamanca cannot establish the second or fourth elements
of a prima facie case of discrimination.
A. Legitimate Performance Expectations

Robert Half first contends that Salamanca did not meet its legitimate performance
expectations. A plaintiff may create an issue of fact by specifically refuting facts that allegedly
support the employer’s claim of performance deficiencies. Dey v. Colt Const. & Development Co.,
28 F.3d 1446, 1460-61 (7th Cir. 1994), citing Komel v. Jewel Cos., 874 F.2d 472, 474-75 (7th Cir.
1989)(“an employee’s denial of specific events which form the basis of the employer’s evaluation
may be sufficient to create a genuine issue of fact”). Salamanca denies that the conduct underlying
Anderson’s criticism of her performance occurred. Baranchik supports Salamanca by specifically
contradicting Anderson’s assessment of her performance at the time of her discharge. On reply,
Robert Half concedes this point by failing to address Salamanca’s performance in the context of her
prima facie case. A genuine issue of material fact exists as to whether Salamanca met Robert Half’s

legitimate performance expectations.

, Robert Half claims Salamanca “has a serious barrier to overcome” regarding the first element of her prima facie
case because she contradicted herself during her deposition as to whether Anderson knew she was Hispanic.
Even if Robert Half’s cursory discussion preserves this issue for decision, Anderson’s knowledge is irrelevant
to Salamanca’s prima facie case given Robert Half’s position that Moran, who knew Salamanca was Hispanic,
made the decision to terminate her employment.

2 Robert Half claims that Salamanca cannot prove she suffered an adverse employmentaction because she failed
to list her termination as a basis for her discrimination claim during her deposition. In her complaint,
Salamanca specifically alleges that her “termination was discriminatory and retaliatory.” Complaint at { 9.
“[T]here is no question that termination constitutes an adverse action . . . “ Worth v. Tyer, 276 F.3d 249, 265
(7th Cir. 2001). Even if this issue is preserved for decision, Robert Half fails to offer any authority supporting
its claim that Salamanca’s failure to list her termination in a laundry list of discriminatory acts during her
deposition dooms her discrimination claim based on an act specifically alleged in her complaint. Robert Half
never specifically asked Salamanca whether she considered her termination to be discriminatory.



That same day, Anderson claims Salamanca gave her ten incomplete applications. In
addition, Anderson claims Salamanca failed to shell four of the ten applications. Although
Anderson claims she previously discussed these performance problems with Salamanca, Salamanca
denies that Anderson raised any performance problems with her. Salamanca further denies giving
Anderson any incomplete applications or failing to shell any applications.

Shortly thereafter, Anderson claims Salamanca yelled at her about her paid time off.
According to Anderson, Salamanca waved her finger in front of Anderson’s face while shouting at
her. Salamanca denies yelling or waving her finger in Anderson’s face. Anderson sent Moran an
e-mail telling him about Salamanca’s alleged performance deficiencies.

On September 24, 2001, Anderson claims she met with Salamanca because she had given
Anderson applications with missing information. Salamanca denies the meeting occurred. That
same day, Anderson claims Salamanca told her that certain applications were complete, even though
Salamanca had written on the application forms that the applications were missing I-9
documentation. Salamanca denies this occurred.

On September 26, 2001, Anderson sent Moran an e-mail informing him that Salamanca had
notentered or shelled any applications for the previous two days, and the majority of the applications
she shelled the previous week were incorrect. During a meeting, Anderson states she informed
Moran about the number of applications shelled and entered by Salamanca. In addition, Anderson
told Moran that Salamanca failed to shell I-9 and W-4 forms correctly. Moran does not recall the
meeting. Nor does Moran recall discussing Salamanca’s work performance with Anderson.

On September 27, 2001, Salamanca and several co-workers drafted a letter to Moran about
Anderson. In the letter, Salamanca and her co-workers complained that Anderson’s “verbal abuse,

threats, and rudeness cannot be taken by any of us any more.” Def. Facts at { 134, citing Salamanca

Dep. Ex. 13. According to Salamanca and her co-workers, “some of [Anderson’s] responses are not



Salamanca’s assigned divisions. Anderson Dep. at 156-57. Although Anderson claims she
discussed the returned I-9 and W-4 forms with Salamanca, Salamanca denies the conversation
occurred. Around this time, Anderson told Salamanca that she received applications with I-9 and
W-4 forms erroneously attached, rather than forwarded to the Field Service Center.

On September 12, 2001, Anderson asked Salamanca and the other receptionist, Tiffany
Heisler, who is Caucasian, to compile a list of interviewed candidates with incomplete I-9 and W-4
information for their divisions. In addition, Anderson reminded Salamanca and Heisler that
applications were to be entered within 24 hours, applications requiring I-9 and W-4 forms were to
be shelled on the day of interview and applications were to be brought to Anderson twice a day.

On September 19, 2001, Anderson asked the receptionists to enter four applications a day.
According to Salamanca, Anderson told her that she would understand if Salamanca’s other
responsibilities prevented her from entering four applications. For the next four days, Anderson
documented the number of applications entered and shelled by Salamanca and Heisler, along with
any mistakes or omissions, to determine if four applications was a realistic quota for the
receptionists, Over this four day period, Salamanca entered a total of two applications. Heisler
entered four applications, one of which was entered incorrectly. On September 20th, Salamanca
shelled two applications, both containing errors. Heisler shelled one application, which was shelled
incorrectly. On September 21st, Salamanca shelled seven applications, six of which were shelled
incorrectly. Heisler shelled three applications; all were shelled incorrectly. On September 24th and
25th, Heisler entered nine applications; three were entered incorrectly. Of the six applications
shelled by Heisler over this two day period, only one was shelled incorrectly.

According to Anderson, she criticized Salamanca for leaving the front desk unattended for
15 minutes on September 20, 2001. Salamanca denies Anderson criticized her for leaving the front

desk. Rather, Salamanca claims Anderson authorized her to leave the front desk to bring her

applications.



there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798
(7th Cir. 1999). The court considers the record as a whole and draws all reasonable inferences in
the light most favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d
969, 972 (7th Cir. 2000). A genuine issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson y. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The summary judgment standard is applied with special scrutiny to
employment discrimination cases because the outcome may depend on determinations of credibility
and intent. Michas v. Health Cost Controls of Illinois, 209 F.3d 687, 692 (7th Cir. 2000).
Il. Race and National Origin Claims

Title VII prohibits an employer from discharging or otherwise discriminating against an
employee in the terms, conditions or privileges of employment based on the employee’s race or
national origin. 42 U.S.C. § 2000ce-2(a). Section 1981 similarly prohibits employment
discrimination based on race. Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 346 (7th Cir.
1999), citing Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1034 (7th Cir. 1998).
“While Section 1981 and Title VII differ in the types of discrimination they proscribe, the methods
of proof and elements of the case are essentially identical.” Von Zukerstein v. Argonne National
Laboratory, 984 F.2d 1467, 1472 (7th Cir. 1993).

In order to establish discrimination under Title VII or § 1981, Salamanca must offer either
direct or indirect evidence of discrimination. See Pafford v. Herman, 148 F.3d 658, 665 (7th Cir.
1998). Salamanca does not offer direct evidence that Robert Half terminated her employment
because of her race or national origin. Instead, she relies on the burden-shifting method set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to establish her claims of race and
national origin discrimination.

In order to establish a prima facie case of race or national origin discrimination, Salamanca

must show: (1) she belongs to a protected class; (2) she met her employer’s legitimate performance



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judg Sitting Judge if Oth
vor Magistrate Judge Suzanne B. Conlon than Assigned Judge
CASE NUMBER 02 C 5033 DATE 4/3/2003
CASE ELIZABETH SALAMANCA vs. ROBERT HALF CORPORATION
TITLE
[In the fotlowing box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

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

Q) a) Brief in support of motion due

@) Oo Answer brief to motion due__. Reply to answer briefdue____.

(4) oO Ruling/Hearing on__setfor__at

(5) a Status hearing[held/continued to} [set for/re-set for] on set for at

- (6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :

Mm a Trial[set for/re-set for] on at

(8) Oo [BenclJury trial] [Hearing] held/continued to at

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

QFRCP4(m) O Local Rule 41.1 CFRCP41(a\(1) OC FRCP41(a)(2).

ao =f [Other docket entry] | Defendant’s motion for summary judgment [19-1] is granted as to the retaliation
claim and denied as to the discrimination claims. Defendant’s motion to strike [27-1] and plaintiff's motion to
strike [26-1] are granted in part and denied in part. Plaintiffs motion to bar witnesses from testifying at trial [12-
1] is granted. The joint final pretrial order and agreed pattern jury instructions shall be presented on April 25,
2003 at 9:00 a.m. Plaintiff's draft shall be submitted to defendant by April 16, 2003. Trial is set on May 5, 2003
at 9:00 am, ENTER MEMORANDUM OPINION AND ORDER. 2

Qiugpnne 73
(11) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

o | Notices maited by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices. I:

Mail AO 450 form. negro
ran sista ’s
Copy to judge/magistrate judge. yeegg La! sta
courtroom a : ao cy
cB deputy’s
initials - :
() Dateltime received in
ceniral Clerk's Office



persuasion remains at all times with Salamanca, St. Mary's Honor Center v. Hicks, 509 U.S. 502,
507 (1993).

Salamanca claims Robert Half cannot advance a legitimate justification for her termination.
Anderson claims she terminated Salamanca at Moran’s request without knowing his reasons. Moran
does not remember whether he was involved in Salamanca’s termination.’ Robert Half attempts to
avoid Moran’s memory loss by relying on the testimony of Anderson and Moran’s secretary, Yesenia
Brown. Salamanca moves to strike this testimony as inadmissible hearsay. Specifically, Salamanca
moves to strike Ff 88, 89, 91, 92 and 105 of Robert Half’s statement of facts.

Contrary to Salamanca’s position, §{ 88 and 89 do not contain inadmissible hearsay.
Anderson’s testimony in { 88 that Moran told her to fire Salamanca falls under the state of mind
exception to the hearsay rule. Fed. R. Evid. 803(3). In { 89, Robert Half relies on the testimony of
Anderson, Moran and Brown for its statement that Moran made the ultimate decision to terminate
Salamanca. Salamanca fails to explain how this testimony constitutes inadmissible hearsay. At
most, Robert Half fails to establish foundation for the three witnesses’ knowledge that Moran
ultimately made the decision to terminate Salamanca.

In contrast, Brown’s testimony in ff 91, 92 and 105 is inadmissible hearsay. In each
paragraph, Brown testifies as to statements Moran made to her about the reasons for Salamanca’s
termination. Although Robert Half claims Brown’s testimony is not offered for the truth of the
matter asserted, Robert Half clearly uses Brown’s testimony to show that Moran terminated
Salamanca for poor performance. Brown does not have any personal knowledge of the reasons for
Salamanca’s termination. Def. Resp. to Pl. Facts at { 98. Under these circumstances, the court

cannot consider ff] 91, 92 and 105 of Robert Half’s statement of facts.

3 Robert Half implies that Moran’s amnesia occurred after it filed suit against him for breach of an employment
agreement. The court may not make credibility determinations on summary judgment. Liberty Lobby, 477 U.S.
at 255.

11


B. Similarly Situated Employees

Robert Half next contends Salamanca cannot establish that Robert Half treated similarly
situated employees outside her protected class more favorably.“The plaintiff in a single-discharge
case does not need to make a showing that ‘similarly situated’ employees were treated better because
the inference of discrimination arises from the fact that they were constructively ‘replaced’ by
workers outside of the protected class.” Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir.
2000). As Robert Half points out, Salamanca was initially replaced by a Caucasian employee.
Thereafter, she was permanently replaced by an African-American employee, who also is outside
her protected class. Robert Half apparently concedes this point by failing to address it on reply. On
this basis alone, Salamanca raises a genuine issue of material fact on the final element of a prima
facie case of discrimination.

Moreover, Salamanca offers evidence that Heisler engaged in similar conduct, but was not
terminated. Both Salamanca and Heisler failed to enter four applications a day. In response, Robert
Half argues Salamanca was terminated for other conduct as well. In making this argument, Robert
Half ignores its concession that Salamanca raised a genuine issue of fact by denying the conduct
underlying Anderson’s assessment of her performance. See also Reply at 11 (“Although Plaintiff
may dispute the accuracy of how her supervisor Anderson evaluated her performance, she admittedly
has no evidence to dispute that Moran honestly believed she had performance problems at the time
the decision was made to terminate Plaintiff's employment”). As a result, Salamanca raises a
genuine issue of material fact as to whether Heisler was treated more favorably.

III. _ Legitimate, Non-Discriminatory Reasons

Once Salamanca establishes a prima facie case, the burden of production shifts to Robert
Half to produce a legitimate, non-discriminatory reason for her termination. Foster, 168 F.3d at
1035. If Robert Half sets forth a legitimate justification, the burden then shifts back to Salamanca
to prove that Robert Half’s reason is a mere pretext for discrimination. Jd. The ultimate burden of

10


only RUDE and RELENTLESS but we believe borderline illegal.” Jd. According to Salamanca,
she previously told Moran that Anderson was pfejudiced toward her. Salamanca dep. at 82-84.

Anderson claims Moran told her to “get rid of’ Salamanca. According to Anderson, Moran
did not give her a reason for Salamanca’s termination. As aresult, she does not know if Salamanca’s
race or national origin played a role in her termination because it was not her decision. Moran does
not recall being involved in the decision to terminate Salamanca. Anderson was aware of
Salamanca’s letter prior to Moran’s decision to terminate her. According to Anderson, she told
Moran about the letter before he told her to terminate Salamanca. On September 27, 2001, Anderson
terminated Salamanca’s employment pursuant to Moran’s instructions.

At the time of her termination, Salamanca provided administrative support for the accounting
operations division headed by Baranchik. Baranchik occasionally provided feedback regarding
Salamanca’s performance during weekly group meetings. According to Baranchik, Salamanca
shelled applications for his division correctly. In addition, Baranchik rarely found mistakes in the
applications entered by Salamanca. After her termination, Baranchik provided Salamanca with a
letter of recommendation.

Salamanca was initially replaced by Deborah “Christy” Straw, who is Caucasian. According
to Robert Half, a hiring freeze prevented them from immediately hiring a replacement outside the
company. Once the freeze was lifted, Robert Half hired Golden Perkins, who is African American,
to replace Salamanca.

DISCUSSION
L Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party has met its
burden, the non-moving party must go beyond the pleadings and set forth specific facts showing



personal knowledge of the subject matter. Moreover, Anderson has personal knowledge as to
whether she received Salamanca’s letter. See Pl. Resp. to Def. Facts at (136. Anderson also has
personal knowledge regarding district director Thomas Moran’s knowledge of Salamanca’s letter
because Anderson testified that she told him about the letter. See Pl. Resp. to Def. Facts at J 137.
Accordingly, Robert Half’s motion to strike Salamanca’s responses to 49 64, 136 and 137 must be
denied.

Incontrast, Robert Half’s motion to strike Salamanca’s response to 106 as well as {] 103,
106 and 107 of her statement of additional facts must be granted. Salamanca’s submissions rely

solely on unauthenticated documents. Nevertheless, Robert Half’s statement in 106 that it “has
not treated any non-Hispanic employees differently than it has treated [Salamanca]” must be
disregarded as improper legal argument. See Malic v. Sanford, 191 F.R.D. 581, 585 (N.D. Ill.
2000)(“The purpose of the 56.1 statement is to identify for the Court the evidence supporting a
party’s factual assertion in an organized manner; it is not intended as a forum for factual or legal
argument”).

Finally, Robert Half’s motion to strike ff 4, 8, 12 and 15 of Salamanca’s statement of
additional facts must be granted in part and denied in part. Each paragraph is based on the testimony
of Eric Baranchik. At the time of her termination, Salamanca provided administrative support for
several divisions, including the accounting operations division headed by Baranchik. In that role,
Baranchik has personal knowledge of Salamanca’s performance as well as Robert Half’s policies
regarding discipline. However, Salamanca fails to establish Baranchik’s knowledge of the entire
scope of her job responsibilities. As Baranchik pointed out during his deposition, Salamanca is in
the best position to describe the scope of her job duties because she worked for managers in other
divisions. Baranchik dep. at 16-17. Under these circumstances, Robert Half’s motion to strike must

be denied as to 99] 4, 8, and 15 and granted as to 12.



with Salamanca. Absent any evidence of a non-complaining similarly situated employee,
Salamanca’s retaliation claim fails as a matter of law.
Vv. Salamanca’s Motion to Bar Trial Witnesses

Salamanca moves to bar Robert Half from calling employees L. Ted Mawla and Robert Clark
at trial. According to Salamanca, Robert Half disclosed both witnesses for the first time two days
before the close of discovery. That same day, Salamanca sent deposition notices for the two
witnesses for the discovery cut-off date. Robert Half responded by offering to produce the witnesses
in their own offices in California and Colorado. In reply, Salamanca offered to take the deposition

by telephone. Robert Half refused.
Rule 26(e) requires parties to supplement their Rule 26(a) disclosures at “appropriate

intervals,” and amend their responses to discovery requests “seasonably.” A party failing to comply
with Rule 26(e) without substantial justification is not permitted to use the information as evidence
at trial or on a motion for summary judgment. Fed. R. Civ. P. 37(c)(1). Robert Half claims it first
learned of Mawla and Clark during Moran’s deposition on February 10, 2003. Nevertheless, Robert
Half fails to explain why it waited over one week to disclose them as possible witness. Nor does
Robert Half explain why it refused Salamanca’s offer to depose the witnesses by telephone prior to
the close of discovery. Under these circumstances, Salamanca’s motion must be granted.
CONCLUSION

Although Robert Half is entitled to judgment as a matter of law on Salamanca’s retaliation

claim, her discrimination claims must proceed to trial. Robert Half witnesses L. Ted Mawla and

Robert Clark are precluded from testifying.

April 3, 2003 ENTER:

Suc Conlon

United States District Judge

14



statements.” Motion at 2, citing Pl. Resp. to Def. Facts at ff 13, 14, 15, 24, 31, 32, 34, 39, 42, 44,
47, 48, 53, 56, 74, 75, 82, 85, 97, 98, 126, 132, 133 and 135. See also Motion at 3, citing Pl. Resp.
to Def. Facts at {J 13, 14, 15, 24, 31, 32, 34, 39, 42, 43, 44, 45, 46, 47, 48, 53, 56, 75, 82, 91, 96, 97,
98, 100, 110, 121 and 135. Despite the number of Salamanca’s purported violations of Local Rule
56.1, Robert Half cites only one response as an example. /d., citing Pl. Resp. to Def. Facts at ] 126.
However, Salamanca properly disputes Robert Half’s assertion in { 126 that she failed to allege her
termination was discriminatory by pointing to her complaint and charge of discrimination. Robert
Half’s motion to strike Salamanca’s response to { 126 is denied.

As to the other disputed paragraphs’, the court “is not required to scour the party’s various
submissions to piece together appropriate arguments.” Little v. Cox’s Supermarkets, Inc., 71 F.3d
637, 641 (7th Cir. 1995), quoting Waldridge v. American Hoechst Corp., 24 F.3d918, 922 (7th Cir.
1994)(internal citation omitted). Nevertheless, all relevant facts denied without supporting
documentation must be accepted as true provided the facts are “properly supported by references to
the record or other evidentiary material.” Jupiter Aluminum Corp. v. Home Ins, Co., 225 F.3d 868,
871 (7th Cir. 2000); Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir. 1993). Therefore, the court
will disregard any responses by Salamanca that do not specifically dispute a properly supported
factual statement by Robert Half.

Robert Half next moves to strike Salamanca’s responses and additional facts that are not
based on a proper evidentiary foundation. See Motion at 3, citing Pl. Resp. to Def. Facts at J] 64,
106, 136, 137 and Pl. Facts at Jf 4, 8, 11, 12, 15, 103, 106, 107. Salamanca’s denials of ff 64, 136
and 137 are premised in part on office manager Kristin Anderson’s testimony. Given its reliance on

Anderson testimony to support ] 64, Robert Half cannot reasonably contend Anderson does not have

See also Motion at 4, citing Pl. Facts at 4] 4, 10, 11, 113, 114, 115 and 120 and PI. Resp. to Def. Facts at {J
32, 45, 46, 97, 98, 100 and 138; Motion at 6-7, citing Pl. Resp. to Def. Facts at JJ 36, 54, 71, 74, 87, 88, 89,
92, 99, 105, 106 and 107 and Pl. Facts at 4¥ 29, 35, 36, 41, 52, 58, 67, 68, 70, 72, 78, 97, 108, 109 and 118;
Motion at 7, citing Pl. Resp. to Def. Facts at {J 121 and 134.



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

EASTERN DIVISION
ELIZABETH SALAMANCA, ) DOCKE TED
Plaintiff, ; No. 02 5033 APR 0 4 2003
v. } Suzanne B. Conlon, Judge
ROBERT HALF CORPORATION,
Defendant. )

MEMORANDUM OPINION AND ORDER

Elizabeth Salamanca (“Salamanca”) sues Robert Half Corporation, a division of Robert Half
International Inc. (“Robert Half”), for race and national original discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000¢ et seq. and 42
U.S.C. § 1981 (“§ 1981"). Robert Half moves for summary judgment on all claims pursuant to Fed.
R. Civ. P. 56. Both parties move to strike portions of the other’s summary judgment submissions.
In addition, Salamanca moves to bar two Robert Half witnesses from testifying at trial.

BACKGROUND

L Evidence

Evidence submitted at the summary judgment stage must be admissible at trial. Woods v.
City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). Therefore, the court must first determine the
admissibility of the evidence presented by the parties before reaching the merits of Robert Half’s
summary judgment motion.
A, Robert Half’s Motion to Strike

Robert Half moves to strike “most of? Salamanca’s responses to the 146 paragraphs
contained in Robert Half’s statement of facts (“Def. Facts”) as well as Salamanca’s 120 paragraphs
of additional facts (“Pl. Facts”), Motion at 1. According to Robert Half, Salamanca’s “responses

are rife with narratives and independent assertions which are not responsive to Robert Half’s fact



Nor can the court consider the portions of Robert Half’s motion that rely on this testimony,
including its statement that “Every explanation given for Plaintiff ’s termination by Anderson, Moran
and Brown was that she was fired for poor performance.” Motion at 12. It is undisputed that
Anderson and Brown do not have personal knowledge of the reasons for Salamanca’s termination
and Moran cannot remember even being involved in the decision to terminate Salamanca. Def.
Resp. to Pl. Facts at ff 24, 46 and 98. Moreover, Robert Half’s reliance on its personnel action form
listing the reason for Salamanca’s termination does not cure its hearsay problem. Robert Half fails
to offer any foundation for Brown’s testimony regarding the information on the form. To the
contrary, Brown testified that Anderson, who does not have personal knowledge of Moran’s reasons
for terminating Salamanca, filled out the form. Brown Dep. at 13, 15. Brown further testified that
she did not see Moran read or initial the form. Pl. Facts at 97. In sum, Robert Half’s failure to
produce admissible evidence ofa legitimate, non-discriminatory reason for Salamanca’s termination
dooms its summary judgment motion on her discrimination claims.

Iv. Retaliation Claim

Title VII prohibits employers from retaliating against employees who oppose unlawful
employment practices covered by Title VII. 42 U.S.C. § 2000e-3(a). “The same standards governing
liability under Title VII apply to § 1981 claims.” Gonzalez, 133 F.3d at 1035. The Seventh Circuit
recently clarified the proper standard for analyzing retaliation claims at the summary judgment stage.
See Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 643-44 (7th Cir.
2002)(articulating “new rule for the adjudication of retaliation cases”), Under the new rule,
Salamanca can prove her retaliation claim in one of two ways. First, she may “present direct
evidence (evidence that establishes without resort to inferences from circumstantial evidence) that
[she] engaged in protected activity... and as a result suffered the adverse employment action of
which he complains.” Jd. If she succeeds in this showing, Robert Half may prevail on its summary

judgment motion if it “presents unrebutted evidence that [it] would have taken the adverse

12