deposition, Crowder admitted that she gave away free or discounted food to maintenance
employees, including her ex-husband and father, on the days the undercover observer visited the
cafeteria. Crowder claims, however, she only gave away food at the direction of the night shift
supervisor, Rhonda Harris. Crowder contends, and Harris acknowledges, that Harris directed her
to give away free food infrequently to maintenance employees as an informal reward for
extraordinary efforts. Sodexho claims that Crowder’s primary daytime supervisors, Pecoraro
and Bonovich, never told Crowder to give away food and were not aware of Harris’s practice.
In support of her claim, Crowder contends that other younger, non-disabled cashiers (specifically
Yvette Hobbs and Alice Stapleton) were not fired even though they also gave away free food
under Harris’s direction. Crowder, however, submitted no evidence that Forest observed Hobbs
and Stapleton giving away free food during the three days she secretly monitored the cafeteria.
IV. ANALYSIS

To prevail on the ADEA and ADA claims, Plaintiff must establish a prima facie case of
discrimination, i.e., that (1) Crowder is a.member of the protected group; (3) who was
performing her job satisfactorily, (3) she was discharged; and (4) similarly situated employees
were treated more favorably. Rummery v. Illinois Bell Telephone Co., 250 F.3d 553, 556 (7th
Cir. 2001)(ADEA); Amadio v. Ford Motor Co., 238 F.3d 919, 924 (7" Cir. 2001)(ADA). Once
Plaintiff satisfies this initial burden, Sodexho must then articulate a legitimate,
nondiscriminatory reason for terminating Crowder’s employment. Rummery, 250 F.3d at 556;
Amadio, 238 F.3d at 919. If Sodexho clears that hurdle, it will be up to Plaintiff to demonstrate
that the reason offered by Sodexho is pretextual. Rummery, 250 F.3d at 556; Amadio, 238 F.3d

at 919.



Crowder next contends Sodexho’s reason for firing her was pretextual because her
supervisors told her to give free food to maintenance employees who went beyond the call of
duty. Crowder claims that her supervisors told her to give away free food as a reward to
maintenance employees who went beyond their normal duties, and Sodexho acknowledges that a
low level supervisor may have authorized the practice. Crowder also contends that pretext is
demonstrated by the fact that other employees also gave away food but were not fired. But, as
noted above, Crowder submitted no evidence to demonstrate that the decision-makers were
aware either of the fact that Harris had authorized Crowder to provide free food to employees or
of the fact that other employees were giving away free food. At the time of Crowder’s
discharge, they knew only that she had given away free food. Although in the interest of
developing positive employee relations, Sodexho might have been better served to question why
Crowder had given away free food before making the decision to terminate her, the Court is not
concerned with whether the employer’s decision was fair or well considered. O’Conner v.
DePaul Univ., 123 F.3d 665, 670 (7th Cir. 1997). Instead, the Court looks only at whether the
decision was discriminatory. Jd. Crowder’s claim that she was authorized to give away free
food simply does not undermine Forest’s report, and she points to no evidence that suggests that
Sodexho did not have a good faith basis to accept the contents of Forest’s report.

Finally, Crowder contends that Sodexho’s use of Forest was nothing more than an
elaborate plot designed to entrap her and provide a basis for discharging her. Crowder claims
that after she declined a promotion to a lead cashier position that was vulnerable to furlough at
management’s discretion, her supervisors hatched this plot to dismiss her. Crowder speculates
that Harris instructed her to give away food for the sole purpose of providing a basis for Sodexho

to launch an undercover investigation to catch her in the unauthorized act of giving away food


assessment of the cashiers’ friendliness and speed. More seriously, however, Forest witnessed
Crowder giving away food or selling meals at reduced prices on several occasions. In particular,
Forest observed Crowder allowing some individuals to walk through the line without exchanging
any cash. Forest also observed Crowder accepting funds that were insufficient to cover the price
of the food purchased. For example, according to Forest, Crowder accepted $5.00 from a
woman, when the total price of the woman’s meal should have been more than $5.00.
Furthermore, Forest noticed that the individuals who received free or reduced-price food went to
Crowder’s station even when the line was shorter or non-existent at other cashier’s stations.
Forest wrote detailed notes describing each transaction where Crowder gave away food or sold it
at a reduced price. During Forest’s three-day observation period, she did not witness any
employee other than Crowder give away merchandise.

After Sodexho received the Forest’s report, Leo Pecoraro, manager of Sodexho’s DePaul
unit, met with Sodexho’s Director of Human Resources (Terry O’Leary) and Director of
Corporate Security (Mike Duwe) to discuss. the observations. Pecoraro, O’Leary, and Duwe
decided to terminate Crowder based on the undercover observer’s findings. At the time, Wendy
Bonovich, Crowder’s immediate supervisor, was on vacation during the process and was not
involved in the decision to terminate Crowder. When preparing the termination memo, Pecoraro
reviewed Forest’s report as well as the record of the cafeteria’s cash register activity for the days
in which Forest witnessed Crowder giving away food. The cash register’s log confirmed the
Forest’s findings. On June 12, 2000, Duwe informed Crowder that she was being terminated
because an undercover observer witnessed her giving away food and selling it at reduced prices.

At the time of her discharge, Crowder was forty years old. Believing that she had been

discriminated against because of her age and her disability, Crowder then filed this suit. In her



1. Similarly situated employees were not treated more favorably.

Concerning the prima facie case, assuming arguendo that Crowder can satisfy elements
one, two and three, she cannot satisfy the fourth prong of the test, since the undisputed evidence
here shows Crowder cannot identify any other similarly situated employees who were treated
more favorably. Sodexho decided to terminate Crowder on the basis of the report from the
undercover observer, Forest. Crowder was the only employee mentioned by the undercover
observer to have given away food. Although Crowder contends that Hobbs and Stapleton were
not discharged even though they also gave away food, her contention is immaterial because she
offers no evidence that Sodexho was aware. that Hobbs and Stapleton gave away food or that
Forest was instructed to target Crowder. Box v. A & P Tea Co., 772 F.2d 1372, 1378 (7th Cir.
1985). There are no other similarly situated.employees in this case because Crowder was the
only employee who gave away food that came to the attention of the decision-makers, Pecoraro,
O’Leary, and Duwe.

2. The Defendant has offered a legitimate, non-discriminatory reason for
terminating the Plaintiff.

Even if Crowder met her initial burden of establishing a prima facie case, Sodexho has
offered a legitimate, nondiscriminatory reason for discharging her. Sodexho discharged
Crowder based on a report by an undercover observer who witnessed Crowder giving away free
and reduced priced food. The negative observations of mystery shoppers can be legitimate, non-
discriminatory reasons for discharging an employee. Connolly v. Ala Carte Entertainment, Inc.,
No. 02 C 0492, 2002 WL 31248497 at *4-5 (N.D. Ill. Oct. 7, 2002), Employee theft is a
legitimate reason to terminate an employee and Sodexho’s undercover observer witnessed
Crowder giving away food. Sodexho has offered a legitimate, non-discriminatory reason for

discharging the Plaintiff. Thus, even if Crowder could establish a prima facie case, she would be



and then discharge her. Crowder submitted not a single bit of evidence of this alleged plot, and
without such evidence the Court can draw no inference that such an elaborate plot did in fact
exist. Konowitz v. Schnadig Corp., 965 F.2d 230, 234 (7th Cir. 1992). Plaintiff's subjective
beliefs in a covert conspiracy to discharge her are not enough to establish pretext. Instead,
Crowder must submit “[fJacts, not . . . perceptions or feelings, . . . to support a discrimination
claim.” Uhl y, Zalk Josephs Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997). Plaintiff's
subjective beliefs and speculation are insufficient to establish pretext and defeat Defendant’s
motion for summary judgment, Murray v. Chicago Transit Authority, 252 F.3d 880, 888 (7th
Cir. 2001).
V. CONCLUSION

The Court holds that Crowder cannot prove that similarly situated employees received
more favorable treatment. Furthermore, the Court holds that Sodexho offered a legitimate
reason for her discharge and Crowder has not submitted evidence to establish that the reason was
not pretextual. For the foregoing reasons, Sodexho’s motion for summary judgment is
GRANTED.

IT IS SO ORDERED.

“Lip! 02 Win Ll YALL

Date William J. Hipbier
United States District Court



«Minute Ore, Aspren (06/97)

- United States District Court, Northern District of Illinois

/

(W/

‘Name of Assigned Judge William J. Hibbler Sitting Judge if Other

or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 6857 DATE 11/18/02
CASE Crowder v. Sodexho Management, Inc.
TITLE

[ln the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.} ° =i

MOTION:
Defendant’s Motion to Dismiss (Doc. # 15)
DOCKET ENTRY: |
(1) Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
@) oO Answer brief to motion due___. Reply to answer briefdue___
(4) Oo Ruling/Hearingon_ set for att
(6) Oo Status hearing [held/continued to] [set for/re-set for]on___——sset fort
() oO Pretrial conference [held/continued to] [set for/re-set for]on__—ssetfor_— att
(7) o Trial [set for/re-set for]on___at
(8) Qo (Bench/Jury trial] [Hearing] held/continuedto at
(9) a This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]
OFRCP4(m) OGeneral Rule21 OFRCP4i(a)(1) OO FRCP41(a)(2).
(10) @ [Other docket entry] Enter Memorandum Opinionand Order. Defendant’s motion for summary judgment (Doc. #15)

(11)

is GRANTED. Any other pending motions are denied as moot.

| [For further detail see order on the reverse side of the original minute order.]

qs

No notices required, advised in open court,

No notices required, umber of nosces

Notices mailed by judge’s staff y 4 20

Notified counsel by telephone. wo
Docketing to mail notices.

Mail AO 450 form,

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required to demonstrate that Sodexho’s reason for terminating her was pretextual. Rummery,
250 F.3d at 556; Amadio, 238 F.3d at 919.

3. The Defendant’s reasons for discharging the Plaintiff were not pretextual.

Plaintiff offers a number of arguments, none of which are convincing, in support of her
claim that Sodexho’s asserted reason for her discharge was pretextual. First, Plaintiff contends
that the undercover observer did not have a clear view of the cashier stations and could not have
seen her giving away food. Plaintiff's contention that the undercover observer’s view was
obstructed is immaterial; the only issue the court must resolve is whether Sodexho believed in
good faith that the undercover observer saw Crowder giving away free food. Kariotis vy.
Navistar Int’l Transit Corp., 131 F.3d 672, 677 (7th Cir. 1997); Lenoir v. Roll Coater, 13 F.3d
1130, 1133-34 (7th Cir. 1994). To establish that an employer’s reasons are pretextual, Crowder
must do more than show that the employer’s judgment is mistaken, she must establish that the
employer’s reason is a lie. Jordan v. Summers, 205 F.3d 337, 344 (7th Cir.2000). Thus, the
Court considers only whether Sodexho investigated Plaintiff differently because she was older
and disabled, and not whether Forest’s observations were accurate. Kariotis, 131 F.3d at 677.
Crowder submitted no evidence to suggest that, because of her age or disability, she was the
target of Forest’s investigation. Forest’s notes indicate that she focused on employees other than
Crowder. Furthermore, Crowder submits no evidence to suggest that the decision-makers did
not in good faith believe the contents of Forest’s report, which informed them that Crowder had
distributed free and reduced price food. Thus, Crowder’s arguments related to the accuracies of
Forest’s observations do not create a genuine issue of material fact as to whether Sodexho’s

reason for terminating her was pretextual.


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

EASTERN DIVISION
DOROTHY CROWDER, )
) Case No. 01C 6857
Plaintiff, )
) Judge William J. Hibbler
v. )
)
SODEXHO MANAGEMENT, INC. )
PME T Be
Defendant. } DEC TED
NOV 9 4 2002

MEMORANDUM OPINION AND ORDER
J. INTRODUCTION

Dorothy (a.k.a. Cynthia) Crowder alleges that Sodexho Management, Inc. violated
Section 621 of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 and
Section 12101 of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101. The court
has befort it a Motion for Summary Judgment filed by Defendant Sodexho, which has been fully

briefed. For the following reasons, Defendant’s Motion for Summary Judgment is GRANTED.

Il. STANDARD OF REVIEW

Summary judgment is appropriate when 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.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists only
where the dispute over the facts might affect the outcome of the lawsuit and there is sufficient
evidence to support a jury verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). When resolving a motion for summary judgment, the Court must consider
the evidence in the light most favorable to the nonmoving party and resolves all inferences in the

nonmoving party's favor. Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 511 (7th Cir .1996).



I. FACTS

From the mid-1990s until November 2001, Dorothy Crowder was employed by Sodexho
as a cashier at DePaul University’s downtown Chicago campus cafeteria. At all times relevant
to this litigation, Leo Pecoraro was the manager of Sodexho’s city-wide DePaul unit and Wendy
Bonovich was the manager of the downtown cafeteria. During Crowder’s employment, Rhonda
Harris was the night shift manager at the cafeteria,

In June 1999, at age 38, Crowder underwent a total hysterectomy to remove fibroid
tumors resulting in the removal of her uterus, fallopian tubes and one of her ovaries. As a result
of the operation, Crowder has trouble lifting multiple heavy objects and can no longer run
recreationally. Crowder also previously had her fallopian tubes tied in 1989 so she could no
longer have children. Crowder returned to work in September 1999 with no medical restrictions
as evidenced by a note from her surgeon.

In April 2000, Sodexho noticed the downtown Chicago cafeteria’s revenue was
decreasing and attributed the decline in revenue to a suspicious number of small (10¢-15¢)
charges on the cafeteria’s receipts. As a result of the findings, Sodexho’s DePaul campus
manager, Leo Pecoraro, and his supervisor, Bob Luedtke, employed an undercover observer to
monitor the cafeteria. Pecoraro and Luedtke chose Jane Forest, head cashier at another
university location operated by Sodexho, to monitor the downtown cafeteria. Forest came to the
downtown cafeteria, purchased food, and observed the cashiers and customers. Forest was not
instructed to target any employee, including Plaintiff, but instead to observe generally all
transactions at the cafeteria. In conducting her surveillance, Forest visited the cafeteria on May
25, May 30, and June 1, and wrote detailed descriptions of her observations. Forest’s notes

included comments regarding the failure of another cashier to wear a nametag as well as an