IV. Conclusion

For the foregoing reasons, defendant’s motion for summary judgment is denied.

Enter:

ian

David T Coar SS
United States District Judge

Dated: November 7, 2003



decision-maker in plaintiff's case and because there was no evidence that Pappas or LaMonica
observed Tetter “sleeping for an extended period of time, as was the case with Ramos.” Marriott
also contends that Tetter was not treated more favorably, pointing to his subsequent (February 9,
2003) termination for sleeping while on the job. Marriott’s arguments are unavailing.

First, although Pappas and LaMonica were not “decision-makers” in plaintiff’s case, it is
undisputed that they had supervisory responsibility over plaintiff -- indeed, defendant contends
that LaMonica was plaintiff's immediate supervisor and that Pappas was her supervisor. In any
event, both were managers in the Banquet Department, where both plaintiff and Tetter worked.
Moreover, it is undisputed that both Pappas and LaMonica were involved in the investigation
that preceded plaintiff's termination. Thus, plaintiff and Tetter “dealt with the same supervisor”
for purposes of this inquiry. Further, as hotel employees, both Ramos and Tetter were subject to
the same standards -- including the hotel’s stated policy of immediate termination for sleeping
while on the clock. Finally, Marriott essentially contends that ‘Tetter is not a proper comparable
because neither Pappas nor LaMonica caught him while he was actually sleeping and because of
various other circumstances attendant to the two respective incidents. Its arguments in that vein
are unavailing.

With respect to the incident observed by LaMonica, it is undisputed that Tetter admitted
to LaMonica that he had “dozed out” -- i¢., that he was sleeping. Thus, whether LaMonica saw
Teter sleeping is irrelevant. Further, contrary to Marriott’s argument, the fact that Tetter may
have slept for a shorter period of time than plaintiff on the days in question is irrelevant and does
not render Tetter an improper comparable -- foremost, because there is no evidence that
Marriott’s stated policy calls for different discipline as between employees caught sleeping for

different periods of time. In any event, there is no evidence that LaMonica knew for how long
13



management testified that sleeping while on the clock constitutes “serious misconduct” and is
grounds for immediate termination.

The hotel’s General Manager, Ted Sclogie (49 ycars of age), is the ultimate decision-
maker with respect to every termination decision. He testified that in every case in which a
supervisor or manager catches an employee sleeping on the job, the employee is terminated. He
further testified that the prescribed discipline would not differ in the event the employee caught
sleeping was “sick” at the time. Ramos acknowledged her belief that sleeping on the job is cause
for immediate termination in a letter to Marriott in connection with the investigation preceding
her termination.’

Cc. The events of May 22, 2002

On May 22, 2002, plaintiff reported to work as scheduled at 5:00 a.m. She was not
feeling well on that day and asked to take her lunch break early. She clocked out for lunch at
exactly 9:31 a.m. She went to Pappas’ office to make a phone call requesting a ride home? She
was told during the call that no one could pick her up until sometime after 11:30 a.m. After
making the call, Ramos went into the ladies’ restroom and rested on the couch inside the door.
She clocked back in at exactly 10:00 a.m. The clock is located just outside the ladies’ restroom.

immediately after clocking back in, plaintiff returned to the restroom. She testified that

* Plaintif{’s attempt to negate this admission by characterizing it as inadmissible hearsay is
unavailing. She admitted to signing the letter and presenting it to Marriott management, and her
acknowledgment that sleeping on the job is grounds for immediate termination constitutes a party
admission.

> The parties dispute whether Pappas was present in his office while plaintiff placed the phone
call (and, by extension, whether plaintiff then asked him to leave work early). Their dispute is
immaterial -- first, because Pappas admits that he knew plaintiff was ill that day that day, and, in any
event, because Sclogic testified that an employee’s being “sick” does not remove her from the force of
Marriott’s policy prohibiting sleeping while on the clock.

4



question and the extent to which Marriott was aware of her sickness is simply not relevant to
whether Marriott honestly believed that she was sleeping while on the job and terminated her as a
result.'' Plaintiffs argument that the investigation was not as thorough as she believes it should
have been fails for essentially the same reason. Even where an “investigation was the reason
given for the discharge, [| a reason honestly described but poorly founded is not a pretext as that
term is used in the law of discrimination.” Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d
672, 677-79 (7" Cir. 1997) (internal quotations and citation omitted) (rejecting “theory that the
company’s investigation was so impulsive and shoddy that it reeks of discriminatory intent”;
“whatever curious process a company employs to reach its decisions is irrelevant so long as
nothing in the record suggests that the process is discriminatory”), Rand, 42 F.3d at 1145
(finding that plaintiffs allegation that decision-making process was a “sham” because certain key
individuals were not interviewed did not aid plaintiff in showing pretext); see also Ghosh v.
Indiana Dep't of Envil. Mgmt., 192 F.3d 1087, 1093 (7" Cir. 1999) (court does not sit as a super-
personnel department to second-guess the investigative process).

However, plaintiffs argument concerning whether Selogie testified truthfully about his
pre-termination investigation is compelling. “Because a fact-finder may infer discrimination
from an employer’s untruthfulness, evidence that calls truthfulness into question precludes a
summary judgment.” Zaccagnini, 338 F.3d at 676 (internal quotations and citation omitted).

The record contains conflicting evidence concerning the form and substance of Selogie’s pre-

termination investigation of plaintiff. First, Selogie testified that plaintiff admitted during their

"’ Plaintiff has not presented any evidence to show that Marriott had a policy or practice of
treating “sick” employces caught sleeping on the job any differently from other employees caught
sleeping on the job, and the only record evidence on the point establishes otherwise.

17



terminated following the first occasion on which they were caught sleeping while on the clock.’

However, the record contains conflicting evidence regarding whether Tetter was caught
sleeping, but not terminated, on one or more occasions prior to the time at which he was
terminated for sleeping while on the clock. Tetter testified in an affidavit that he was caught
sleeping while on the clock on two occasions -- once by Pappas and once by LaMonica -- and
that he received only a verbal warning each time.

Tetter submitted an affidavit stating that Pappas caught him sleeping while on the clock.
Athis deposition, [etter testified that, in Spring 2001, he was sleeping in a banquet room while
on the clock. He claimed that he looked up as Pappas opened the door, and that Pappas
subsequently said something to the effect of, “Hey Victor, | don’t want you sleeping in here.”
Tetter then denied being asleep. Pappas instructed him that if he caught him sleeping, he could
be fired. These facts are undisputed, but Pappas, Tetter’s supervisor, denied catching Tetter
sleeping while on the clock.

Tetter also testified in his affidavit that LaMonica caught him sleeping. At his deposition,
‘etter testified that, sometime in 2002, he was sleeping on the stairs in a hallway near a banquet
room, and LaMonica encountered him and called his name. He responded by looking up and

saying “Yes.” He testified that LaMonica asked him, “[W]hat are you doing over here sleeping?”

? Ma’s termination paperwork suggests that he was being terminated pursuant to the progressive
discipline policy (i.¢., because he had incurred three written warnings in the prior nine months),
However, Melville testified that he was immediately terminated because he was sleeping on the job.
This supposed inconsistency is insufficient to show that Ma was treated more favorably than plaintiff, as
there is no evidence that he was previously caught sleeping on the job but not terminated. Similarly, a
draft version of Salas’ disciplinary paperwork indicated that he was receiving discipline short of
termination for sleeping on the job. However, Melville testified that the very next day, she prepared a
corrected version of his paperwork pursuant to which he was terminated. This supposed inconsistency is
likewise insufficient to show that Salas was treated more favorably than plaintiff, as Marriott terminated
him upon the first and only occurrence of his sleeping on the job.

9


the restroom. She was unable to identify who entered and left the restroom.’

Plaintiff left the restroom at approximately 10:30 a.m. At that time, she went to make a
phone call for a ride to pick her up, went to wait for her ride to pick her up, and then went to the
cafeteria for a free lunch that was being served as part of associate appreciation week. Gurgone
and LaMonica both observed her in the cafeteria at that time. Plaintiff never punched out that
day and was paid for a full eight-hour shift.

D. Marriott’s investigation and subsequent discharge of plaintiff

The next day, May 23, 2002, LaMonica printed out plaintiff's “punch report” from the
previous day and provided it to Melville. The report showed that Ramos had punched back in
from her break at 10:00 a.m. Accordingly, Melville told Pappas that she needed to meet with
Ramos because it had been determined that she was sleeping in the restroom while on the clock.

Melville and Ramos met on the afternoon of May 23", and both Gurgone and Pappas
attended the meeting, as well. Melville opened the meeting by informing Ramos that she had
been observed slecping in the ladies’ restroom the day before. Ramos responded by stating “No”
and by contending that she was on her break and that she had been sick.5 Melville told Ramos
that she was not on her break. Melville decided that Ramos should be suspended and informed
Ramos that she was being suspended pending a review and possible termination. Melville was

the sole decision-maker with respect to plaintiff’s suspension.

* Marriott contended in its opening memorandum that plaintiff “admits” that her eyes were shut
while she was on the sofa. That contention was not supported by any citation fo the record, and after
plaintiff brought the issue to the court’s attention in her response brief, defendant backed away from the
contention in its reply brief. This court does not look favorably upon casual treatment of the facts.

5 ‘The parties dispute the sequence of the conversation (/.e., at what point during the conversation
plaintiff raised the issue of her illness), as well as whether Pappas subsequently told Melville that
plaintiff was sick on the day in question, but their dispute is immaterial.

6


she did so because she had to throw up. Plaintiff admits that she was in the ladies’ restroom
while on the clock for about the next 30 minutes (from approximately 10:00 a.m, to 10:30 a.m.).
She testified that she was ill during the time in question.

During that period of time, Gurgone went into the ladics’ room twice, approximately ten
to fifteen minutes apart. Gurgone testified that she saw Ramos sleeping on the sofa in the same
position both times. After the first time Gurgone saw Ramos on the sofa, she departed the
restroom and asked LaMonica whether Ramos was on her break. Because LaMonica did not
know whether Ramos was on her break, he and Gurgone checked the punch clock to determine
whether Ramos was punched in. Barbara Melville, Director of Human Resources (54 years of
age), joined in their effort. They were unable to determine whether Ramos was punched in
because they did not have Ramos’ time card (which was with Ramos). Gurgone thereafter
returned to the bathroom to check on Ramos. When she did so, she found her in the same
position.

When Gurgone went into the bathroom and saw Ramos, she suspected that Ramos was
sleeping because Melville had previously informed her that Ramos was seen sleeping in that
area. (Ramos denies having done so.) When questioned at her deposition, Gurgone stated that
she did not know whether Ramos was “unconscious,” but that she was not “conscious being a
state of being awake and looking around.”

Ramos denies that she was sleeping and claims that she was sitting on the sofa with her
hands covering her face such that Gurgone could not have seen her eyes. She testified that she
was in that position for the entire time during which she was on the sofa -- approximately ten to

fiftecn minutes -- except for two times when she looked up after hearing someone enter and leave



meeting that she was sleeping while on the clock and that her admission contributed to his
decision that she should be terminated. Plaintiff testified that she did not make such an
admission. Moreover, Sclogie testified that he interviewed or consulted Gurgone, Pappas,
Wattenberg, and Rogers in connection with his investigation, but all four employees -- two of
whom are Marriott management employees -- testified to the contrary, Plaintiff has, thus,
pointed to specific facts in the record that call into question Selogie’s credibility, which is
sufficient to warrant denial of Marriott’s motion. See Schuster, 327 F.3d at 578; Rand, 42 F.3d at
1146. From the record evidence, a reasonable fact-finder could conclude that Selogie lied about
his investigation. The investigation, if not the “reason” for plaintiff's termination, is sufficiently
tied to the reason to permit a finding of pretext in the event the fact-finder concludes that Selogie
lied about it. A reasonable fact-finder could infer from Selogie’s lying about the investigation
that the real reason for her termination was discrimination."

In sum, this evidence, in combination with evidence of Marriott’s comparative treatment
of plaintiff and Tetter, could permit a trier of fact to find pretext. See Reeves, 530 U.S. at 143,
149; see also Appelbaum v. Milwaukee Metropolitan Sewerage Dist., 340 F.3d 573, 580-81 (7"
Cir. 2003) (affirming jury finding in favor of ADEA plaintiff and concluding that jury could have

inferred pretext from disparate discipline of plaintiff and another employee).

Of course, under the indirect method of proof, a plaintiff is not required to produce evidence of
discrimination to survive summary judgment. See Zaccagnini, 338 F.3d at 680; see also Perdomo vy,
Browner, 67 F.3d 140, 145 (7" Cir. 1995) (plaintiff need not prove that the real reason is discrimination
to survive summary judgment; “[bJecause a fact-finder may infer intentional! discrimination from an
employer’s untruthfulness, evidence that calls truthfulness into question precludes a summary
judgment”) (citation omitted).

18


Selogic, as the individual ultimately responsible for termination decisions, decided that
plaintiff should be terminated and notified her of the same via telephone. It is undisputed that
Selogie and Melville were the sole “decision-makers” with respect to Ramos’ termination.

E. Subsequent hiring of coffee break attendants

Marriott contends that it did not hire anyone to replace Ramos and that employees who
already worked as Coffee Break Attendants, on either a full-time or part-time basis, absorbed
some of Ramos’ hours. Martinez, who worked part-time as a Coffee Break Attendant, testified
that she filled in for Ramos for a couple of weeks, a few hours a day. She stopped working as a
Coffee Break Attendant in December 2002. Approximately ten months after plaintiff's
termination, Marriott hired Raquel Torres, who was under 40 years of age, as a Housekeeping
Associate and Coffee Break Attendant. She assumed Martinez’s position in that she
subsequently filled in occasionally to assist with coffee breaks. Marriott also contends that many
of Ramos’ hours disappeared due (o decreasing demand for meeting rooms and, thus, coffee
breaks.

Ramos claims that she was replaced, citing only her sister’s bare, general testimony that
Marriott hired Torres to work the hours formerly worked by Ramos and that Martinez and other
unidentified employces under the age of 40 worked the hours formerly worked by Ramos.

F. Marriott’s treatment of other employees caught sleeping while on the clock

‘The record indicates that Marriott has terminated at least three other hotel employees for
sleeping while on the clock since the time of plaintiff's termination, and all three were under the
age of 40. They were Victor Tetter (37 years of age), a Banquet Department employee; Edward
Salas (33 years of age), a Lounge Department employee; and Ping Kee (William) Ma, (31 years

of age), a Banquet Department employee. It is undisputed that Salas and Ma were both
8


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge David H. Coar Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 8377 DATE 11/7/2003
CASE Anna O. Ramos v. Schaumburg/Oakbrook Marriott Hotels, Inc.
TITLE

Ln the following box (a) indicate the party tiling the motion, ¢g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented. |

MOTION:
Defendant’s Motion for Summary Judgment

DOCKET ENTRY:

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

(2) Oo Brief in support of motion due

(3) a Answer brief to motion due___-_ Reply to answer brief due.

(4) Oo Ruling/Hearing on setfor at

(5) Qa 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 att

(7) a ‘Trial[set for/re-set for]on__—_at

(8) 0 [Bench/Jury trial] [Hearing] held/continued to at 7

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

CFRCP4(m) CO Local Rule 41.1 COFRCP41(a)(1) 0 FRCP41(a)(2).

ao) if [Other docket entry] For the reasons stated in the attached memorandum, Defendant’s Motion for

Summary Judgment [Doc # 15 ] is denied.

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

No noliees required, advised in open court

No notices required. number of not :
nudes of noiess ws

Notices mailed by judge's staff.

IOV « o onae
Notified counsel by telephone. NO Vi £iie

Y | Docketing to mail notices. oN

Mail AO 450 form.

sty 4
siocketing deputy initials >

Copy to judge/magistrate judge

date mailed notice
courtroom

acd/le deputy’s
initials

mang deputy initia



at 875; Peele vy, Country Mutual Ins. Co,, 288 F.3d 319, 326 (7" Cir. 2002). Once the plaintiff
has met this initial burden, the employer must produce a legitimate, non-discriminatory
explanation for the adverse employment action. Krehnavy, 294 F.3d at 876; Peele, 288 F.3d at
326. If the employer offers a legilimate, non-discriminatory reason, the plaintiff must present
evidence sufficient to prove that the proffered explanation is pretextual. Krchnavy, 294 F.3d at
876; Peele, 288 I'.3d at 326. As the Seventh Circuit has recently made clear, “[a] plaintiff does
not reach the pretext stage, however, unless she first establishes a prima facie case of
discrimination.” Peele, 288 F.3d at 326.

A. Prima Facie Case of Discrimination

Only plaintiff's ability to meet the second and fourth prongs of her prima facie case is in
dispute, First, defendant contends that plaintiff cannot demonstrate that she was meeting its
legitimate expectations because, shortly before her termination, she was caught sleeping in the
restroom while on the clock. Plaintiff admits that she was in the restroom for approximately 30
minutes while on the clock and that she was ill and was sitting on the couch therein for
approximately ten to fifteen minutes, but she denies that she was sleeping during that time. She
instead contends that she was sitting with her head in her hands (because she was ill), Plaintiff
claims that, consequently, Gurgone could not have seen whether her eyes were closed (i.¢.,
because they were covered by her hands). Based on the foregoing, whether plaintiff was sleeping

while on the clock is a disputed question of fact.*

* The conduct admitted by plaintiff might well not meet the legitimate expectations of many
employers. However, defendant has not so argued and has not presented sufficient evidence to establish
that such conduct (as opposed to sleeping while on the clock) did not meet its legitimate expectations.
Relatedly, defendant has maintained that it terminated plaintiff's employment because it believed she
was s/eeping while on the clock and for no other reason.

I



Tetter told LaMonica, “I sit down for a minute and dozed out.” Tetter testified that he was
sleeping for “probably about ten minutes,” while conceding that he did not know for how long he
slept. LaMonica told Tetter that he could be fired if he was sleeping on the job and told him to
get up. Teter returned to work. Tetter did not receive a written warning and was not terminated
for that incident. These facts are, likewise, undisputed, but La Monica testified that he was not
aware of any employee who was caught sleeping while on the clock who was not fired.

There is no evidence in the record that Pappas and/or Tetter reported the above incidents
to anyone else or that Melville or Selogic was aware of either incident.
Il. Analysis

The ADEA prohibits employers from “discharging any individual. . because of such

individual’s age.” 29 U.S.C. § 623(a)(1). ‘To prevail on an ADEA claim, a plaintiff must prove
that her age “actually played a role in [the employer’s decisionmaking] process and had a
determinative influence on the outcome.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 141, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000) (internal quotations and citation omitted), A
plaintiff may establish an ADEA claim through either direct evidence of her employer’s
discriminatory motive or the familiar indirect, burden-shifting approach. See Schuster, 327 F.3d
at 573-74,

Having presented no direct evidence of discrimination, plaintiff seeks to prove her claim
through the indirect approach. This approach entails a three-step inquiry. First, a plaintiff must
establish a prima facie case of discrimination by establishing that: (1) she is over 40; (2) she was
meeting her employer’s legitimate expectations at the time of the complained of adverse

employment action; (3) she was subjected to an adverse employment action; and (4) similarly-

situated substantially younger employces received more favorable treatment. Krchnavy, 294 F.3d
10



Marriott gave Ramos a choice between presenting her case to a Peer Review Panel or to
General Manager Selogie, and Ramos chose the latter. In connection with Selogie’s review,
Melville recommended to him that Ramos be terminated for sleeping on the job.

Sclogie testified that in such situations, he tries to remain objective; he talks to the
employee to get his or her side, and he conducts an investigation. On June 4, 2002, Ramos
presented a letter to Selogie. On the same day, Ramos and Selogie had an in-person meeting.
Ramos initially stated that she had not been sleeping in the restroom. Selogie testified that she
later admitted that she was sleeping, but Ramos denies that she made such an admission. Sclogie
testified that Ramos’ admission was one of the determining factors in his subsequent decision to
terminate her.

Sclogie testified at his deposition about what he did to investigate following his meeting
with Ramos. The testimony of other witnesses, including Marriott management employees,
substantially contradicted Selogie’s testimony in this regard. First, Selogie testified that he spoke
to Gurgone and that she explained why she felt that plaintiff was sleeping. However, Gurgone
testified that she was not involved in conducting Marriott’s investigation. Selogie also testified
that he spoke to two employees -- Marie Wattenberg and Joan Rogers -- whom plaintiff claimed
had knowledge of her being ill in the bathroom. He testified that both employees told him that
they had not seen Ramos getting sick. However, at their depositions, Wattenberg and Rogers
denied having any discussion with Selogie. Finally, Selogie testified that he spoke to Pappas
during his investigation. Conversely, Pappas testified that he had no such conversation with

Selogie.

° The parties failed to include a copy of the relevant deposition transcript page in their
appendices, but defendant nonetheless admitted this “fact.”

7



position until her termination). In that capacity, she was responsible for providing coffee
services for meetings held in the hotel’s conference rooms. As of May 2002, plaintiff’s chain of
command was as follows: Frank Truss, Lead Coffee Break Attendant (42 years of age);' John
LaMonica, Banquet Attendant (48 years of age); Peter Pappas, Banquet Manager (45 years of
age); and Sandra Gurgone, Director of Events Management (48 years of age).

Aside from Ramos and Truss, there were at least two other individuals working as Coffee
Break Attendants on cither a full-time or part-time basis at the time of plaintiff’s termination:
Margaret Espinosa (60 years of age), who was plaintiff's older sister; and Sandra Martinez (32
years of age), who worked as a fill-in Coffee Break Attendant on days for which relatively many
coffee breaks were scheduled. Both Espinosa and Martinez, as well as Truss, remain employed
by Marriott.

Plaintiff regularly worked on the 5:00 a.m. to 1:30 p.m. shift and took her lunch break
from 10:30 a.m. to 11:00 a.m. She was required to punch out on the time clock for her lunch
break.

B. Marriott’s disciplinary policies

Marriott maintains a progressive disciplinary policy and utilizes progressive discipline for
certain disciplinary infractions. Marriott also maintains a list of offenses, deemed the “Deadly
Sins,” that are grounds for immediate termination, Ramos received a copy of the Deadly Sins
and acknowledged the same in writing. The policy does not explicitly prohibit sleeping while on

the clock. However, Number 15 of the Deadly Sins is “Serious Misconduct,” and Marriott

" Defendant contends that LaMonica was plaintiff's immediate supervisor and that Pappas was
her supervisor, and plaintiff contends that Truss was her immediate supervisor, but their dispute is not
material to any issue presented by defendant’s motion.

3


Tetter had been sleeping.

With respect to the incident observed by Pappas, Marriott contends that because Tetter
denied to Pappas that he was sleeping, plaintiff may not rely upon the corresponding incident as
evidence that similarly-situated employees were treated more favorably. However, plaintiff has
also denied that she was sleeping at the time in question, although unlike Tetter, she was not
questioned at the time of the incident. Although this incident presents a closer question than
does the incident observed by LaMonica, the conduct in which plaintiff and Tetter were
suspected of engaging and the surrounding circumstances were sufficiently similar to permit their
comparison.”

From the above undisputed facts, a reasonable fact-finder could conclude that Marriott
subjected Ramos to its stated policy of immediate termination for sleeping while on the clock,
but did not subject Tetter to the same policy when he was caught sleeping and, instead, gave him
at least one “get out of jail free” card, if not two. As such, plaintiff has satisfied her burden with
respect to the fourth prong of the prima facie test."

B. Legitimate, Non-Discriminatory Explanation for Termination

Marriott contends that it terminated Ramos because she was sleeping while on the clock.

Marriott has thus satisfied its burden of producing a legitimate, non-discriminatory explanation

°’ The courts conclusion that plaintiff has established a prima facie case is in no way dependent
upon this incident, as the incident observed by LaMonica is, alone, sufficient to mect the fourth prong.

'° Contrary to Marriott's argument -- and mischaracterization of the holding in Kuhn v. Ball State
Univ., 78 F.3d 330 (7" Cir. 1996) -- plaintiff can meet the fourth prong by showing that even one single
comparable was treated more favorably (i.¢., where they were arguably caught engaging in the same
misconduct), Kuhn addressed not the sufficiency of a proffered comparison in a disparate discipline
case, but rather “the sufficiency of a database to create a statistical inference.” Coyne v. Siemens Info.
and Cominun. Networks, Inc., No. 02 C 1472, 2003 U.S. Dist. LEXIS 4783, at *15 (N.D. Ill. Mar. 27,
2003) (rejecting employer’s argument at summary judgment that single comparison was insufficient to
establish fourth prong of prime facie test).

14


terminating her employment is unworthy of credence: (1) plaintiff was not actually sleeping; (2)
plaintiff was sick at the time during which she is accused of sleeping while on the clock; (3)
defendant’s investigation was not as thorough as it should have been; and (4) Sclogie, one of two
decision-makers and the ultimate decision-maker, lied about the investigation preceding and
forming the basis for his decision to terminate her employment.

‘The first three arguments fail because the issue at the pretext stage is not whether the
underlying conduct for which plaintiff was terminated actually occurred, but whether defendant
reasonably believed it did. See Giannopoutos v. Brach & Brock Confections, Inc., 109 F.3d 406,
411 (7 Cir. 1997) (“when an employer articulates a reason for discharging the plaintiff not
forbidden by law, it is not our province to decide whether that reason was wise, fair, or even
correct, ultimately, so long as it truly was the reason for the plaintiff's termination”), Rand v. CF
Indus., Inc., 42 F.3d 1139, 1145 (7 Cir. 1994) ([a]ny pretext determination is concerned with
whether the employer honestly believes in the reasons it offers, not whether it made a bad
decision”) (internal quotations and citation omitted); Gustovich y, AT&T Commun, Inc., 972
F.2d 845, 848 (7"" Cir. 1992) (the question is not whether the employer’s reasons for a decision
are right, but whether the employer’s description of its reasons is honest); see also Pollard, 904
F.Supp. at 770-71 (plaintiff's “self-serving denial that he slept on the job is not enough to defeat
a summary judgment motion”; “whether a reasonable jury would find that [the plaintiff] was not
sleeping. . .is irrelevant”; “the issue is whether [the employer’s] reason for firing [plaintiff] was
*phony””’)

Thus, plaintiffs contention that she was not actually sleeping while on the clock is
insufficient to create a triable fact issue as to whether Marriott honestly believed that she was

sleeping on the sofa in the restroom. Likewise, whether plaintiff was “sick” on the day in
16



triable fact issue exists “only if there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.” Schuster, 327 F.3d 569, 573 (7" Cir. 2003) (quoting Wade
y. Lerner New York, Inc., 243 F.3d 319, 321 (7" Cir. 2001) (quotation omitted)).

The movant bears the initial burden of establishing that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 923, 91 L. Ed. 2d 265, 106 S. Ct. 2548
(1986). “Because the purpose of summary judgment is to isolate and dispose of factually
unsupported claims,” the non-movant must then present specific facts showing that there is an
issue for trial, Michael v. St. Joseph County, et al., 259 F.3d 842, 845 (7" Cir. 2001) (quoting
Fed. R. Civ. P. 56(c)). To successfully oppose the motion, the non-movant cannot rest on the
pleadings alone, but must designate specific facts in affidavits, depositions, answers to
interrogatories, or admissions that establish that there is a genuine triable issue. Celotex, 477
USS. at 324. A scintilla of evidence in support of the non-movant’s position is insufficient to
defeat a summary judgment motion; “there must be evidence on which the jury could reasonably
find for the [non-movant].” Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
2510, 91 L. Ed. 2d 202 (1986).

Il. Factual Background

A. Ramos’ employment at Marriott

Ramos worked at the Marriott Oakbrook Hotel (“the hotel”) from May 1990 to May 22,
2002, the date of her termination. Marriott informed Ramos that she was being terminated for
sleeping while on the clock. She was 59 years of age at the time of her termination.

Marriott hired plaintiff to work as a Server in the Banquet Department at the hotel. She

subsequently became a Coffee Break Attendant in the Banquet Department (and continued in that


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETES
EASTERN DIVISION 4 9 2003
nov 12

ANNA O. RAMOS, )
)
Plaintiff, )
) No. 02 € 8377
v. )
) HONORABLE DAVID H. COAR
SCHAUMBURG/OAKBROOK )
MARRIOTT HOTELS, INC.,
)
Defendant. )

MEMORANDUM OPINION AND ORDER

The plaintiff, Anna O. Ramos (“plaintiff” or “Ramos”), filed a complaint in this court
alleging age discrimination by her former employer, Schaumburg Oakbrook Marriott
(“defendant” or “Marriott”), under the Age Discrimination in Employment Act, 29 U.S.C. § 621,
et seq. (“ADEA”). Ramos’ claim is premised upon Marriott’s May 22, 2002 termination of her
employment. Marriott’s motion for summary judgment in its favor is before this court. For the
reasons set forth below, summary judgment is denied.

L Summary Judgment Standard

At summary judgment, the court must view the facts in the light most favorable to the
nonmoving party and draw all reasonable inferences in her favor. See, e.g., Krchnavy v.
Limagrain Genetics Corp., 294 F.3d 871, 875 (7" Cir. 2002). Summary judgment is appropriate
if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Schuster v.

Lucent Technologies, Inc., 327 F.3d 569, 573 (7 Cir. 2003) (quoting Fed. R. Civ. P. 56(c)). A

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Defendant next contends that plaintiff cannot prove that similarly-situated younger
employees were treated more favorably. Plaintiff seeks to make the requisite showing in two
alternative ways: (1) by proving that she was replaced by younger individuals; and (2) by
proving that younger individuals whom management believed were sleeping on the job were not
subjected to immediate termination upon their first such offense. Although plaintiff has not
articulated her argument precisely in this manner, she essentially seeks to prove that even if she
was not meeting Marriott’s legitimate expectations, she can prove a prima facie case because she
can show that Marriott applied its expectations in a discriminatory manner. See, ¢.g., Peele, 288
F.3d at 329-330. On this point, by citing the disparate treatment of similarly-situated employee
Victor Tetter (who was substantially younger than plaintiff), plaintiff has presented sufficient
evidence to create an issue for trial. It is, therefore, unnecessary for this court to address whether
plaintiff has created a triable issue concerning her replacement and/or the absorption of her duties
by substantially younger employees.

The formulation for determining whether two employees are “similarly situated” depends
upon the context of the case. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7" Cir. 2000).
“[I]n disciplinary cases -- in which a plaintiff claims that he was disciplined by his employer
more harshly than a similarly situated employce based on some prohibited reason -- 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 (citations omitted).

Marriott contends that Tetter is not a proper comparable because LaMonica was not a
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for her termination. See, e.g., Reed v. Amax Coal Co., 971 F.2d 1295 (7" Cir. 1992) (upholding
discharge of Title VII plaintiff for sleeping on the job); Jones v. Provena St. Joseph Med. Ctr.,
No, 00-1286, 2000 U.S. App. LEXIS 25472 (7" Cir. Sept. 26, 2000) (same); see also Perry v.
Pierce Chem. Co., No. 00 C 50186, 2002 U.S. Dist. LEXIS 8716 (N.D. Ill. May 14, 2002)
(sleeping on the job does not mect an employer's legitimate expectations); Paulos-Johnson v.
Advocate Trinity Hosp., No. 01 C 3639, 2002 U.S. Dist. LEXIS 2397 (N.D. Ill. Feb. 15, 2002)
(same); Pollard v, Azcon Corp., 904 F.Supp. 762 (N.D, Il]. 1995) (same).

Cc. Pretext

A plaintiff may prove pretext directly -- through evidence that an employer was motivated
by discriminatory animus -- or indirectly -- through evidence that the proffered reason is
unworthy of credence. Schuster, 327 F.3d at 574. To show that a proffered reason is unworthy
of credence, a plaintiff must “prove that the employer’s proffered reasons are factually baseless,
were not the actual motivation for the discharge in question, or were insufficient to motivate the
discharge.” /d. (internal quotations and citation omitted). “[I]f the only reason an employer
offers for firing an employee is a lie, the inference that the real reason was a forbidden one, such
as age, may rationally be drawn.” /d., at 575 (internal quotations and citation omitted), See also
Reeves, 530 U.S. at 148. However, to establish that a reason is unworthy of credence, “it is
insufficient for the employce 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 firing [her].” Krehnavy, 294 F.3d at 876 (internal quotations and citation omitted).
See also Russell v. Aeme-Evans Co., 51 F.3d 64, 68 (7" Cir. 1995) (plaintiff must show that
reason given was a “lie” or a “phony reason”).

Plaintiff advances a handful of arguments in an effort to show that Marriott’s reason for
15