B. Gender Discrimination Claims

Under Title Vi; Smith is required to provide evidence supporting her gender discrimination
claims by one of two methods, either directly or indirectly. Lim v. Trs. of Ind. Univ., -F.3d-, No. 01-
4295, 2002 U.S. App. LEXIS 14534, at *10 (7th Cir. July 14 2002). The direct method is

established by putting in enough evidence (whether direct or circumstantial) to demonstrate that

GVC discriminated against Smith because of her gender. See, e.g., Troupe v. May Dep't Stores Co.,
20 F.3d 734, 736 (7th Cir. 1994). Direct evidence of discrimination is “smoking gun” evidence, such
as “[w]e fired you because of your [gender].” Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th
Cir. 2000) (analyzing the McDonnell-Douglas test in an ADA/age discrimination case.) Smith may
also use circumstantial evidence to show GVC’s discriminatory intent. The types of circumstantial
evidence that Smith can present are: “suspicious timing, ambiguous statements, behavior toward or
comments directed at other [people] in the protected group, and other evidence from which an
inference of discriminatory intent might be drawn... .” Huff, 122 F.3d at 380. Smith has provided
no direct or circumstantial evidence regarding GVC’s employment action. Therefore, the court looks
to the second, indirect method, to analyze Smith’s claim.

The second method for proving discrimination is the so-called McDonnell-Douglas, burden
shifting, method. The framework for the frequently used burden-shifting method was first set out

in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Under the McDonnell-

Douglas method of proving discrimination, a plaintiff must first establish a prima facie case of
discrimination. See Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998). The Seventh
Circuit has consistently held that “the prima facie case under McDonnell Douglas must be
established and not merely incanted.” See, e.g., Coco v, Elmwood Care, 128 F.3d 1177, 1178 (7th
Cir. 1997).

In order to establish a prima facie case Smith must demonstrate that: (1) she is a member of
a protected class; (2) she was meeting her employer’s legitimate performance expectations; (3) she

suffered an adverse employment action; and (4) the employer treated similarly situated male

4



normally end the inquiry of the court, but with an abundance of caution the court will assume that
Smith established a prima facie case and analyze whether GVC’s reasons for terminating Smith are
pre-textual.

Smith fails to demonstrated that the reasons stated by GVC for her termination were pre-
textual. GVC fired Smith because she admittedly set up a second gambling account for McClenthen
leaving out the necessary information that allows GVC to routinely monitor its system for secondary
accounts. Smith omitted the information in an attempt to allow McClenthen to gain some benefit
from the two gambling accounts.

Smith attempts to rebuff GVC’s reason for terminating her employment by making
unsubstantiated claims that she was fired for complaining about Huevelman’s actions. Smith
proffers no evidence to support her theories, only her own speculations and assumptions. Mere
speculation and conclusions without factual support are not enough to defeat summary judgment.

See Rand, 42 F.3d 1146-47. Smith’s argument also has no merit because there is no temporal

connection between the time frame of when Smith complained about Huevelman’s conduct and
when she was terminated. “‘[A]s the temporal distance between [the claimant’s] protected
expression and the adverse action increases, it is less likely that there is a causal link between the two

events.”” McClendon v. Indiana Sugars, 108 F.3d 789, 797 (7th Cir. 1997) (quoting McKenzie v.

Illinois Dep’t of Transp., 92 F.3d 473, 485 (7th Cir. 1996)). Smith complained about Huevelman’s
actions approximately six months before she was terminated for setting up a second gambling
account for McClenthen.

Smith also asserts that GVC’s reason for firing her was pre-textual because the gambling

accounts are virtually worthless, the only real advantage of which is to GVC. Smith again has no



F.3d at 983 (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) (“Pretext in this

a9

context means ‘a lie, specifically a phony reason for some action.’”)). In order to prove pretext
Smith’s burden is to rebut the articulated reasons for her termination. See Plair, 105 F.3d at 349; see

also Smith v. General Scanning, Inc., 876 F.2d 1315, 1319 (7th Cir. 1989). “[A] reason cannot be

proved to be a pretext for discrimination unless it is shown both that the reason was false and that

discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

Despite these shifting burdens of production, the ultimate burden of persuasion always remains with
the plaintiff. See Adusumilli, 164 F.3d at 362.

Smith is not able to set forth the four elements needed to show a prima facie case of
discrimination based on the evidence presented. There is no question as to the first and third
elements necessary to establish a prima facie case of gender discrimination. Smith is a member of
a protected class based on her gender, she has suffered an adverse employment action and her
employment with GVC was terminated. Smith is also able to set forth the second element needed
to establish her prima facie case, although it is contested by GVC that she was not performing to
their legitimate expectations.

GVC argues, circularly, that because Smith was fired she was therefore not meeting GVC’s
employment expectations. “The ‘legitimate expectations’ element in the ubiquitous burden-shifting

formula of McDonnell Douglas [is crucial].” Coco, 128 F.3d at 1179. If a plaintiff fails to

demonstrate that she was meeting her employer’s legitimate employment expectations at the time
of her termination, the employer should not be “put to the burden of stating the reasons for [her]

termination.” Coco, 128 F.3d at 1179; see also Brummett v. Lee Enterprises, Inc., 284 F.3d 742, 745



employee’s more favorably. See Cheek v. Peabody Coal Co,, 97 F.3d 200, 204 (7th Cir. 1996). If
Smith cannot establish a prima facie case, the analysis ends and her claims fail. Plair, 105 F.3d at

347 (citing Randle v. LaSalle Telecommunications, 876 F.2d 563, 569 (7th Cir. 1989)). Ifa plaintiff

is unable to establish a prima facie case of employment discrimination under McDonnell Douglas,
an employer should not be subjected to a pretext inquiry. Peele v. Country Mut. Ins. Co., 288 F.3d
319, 327 (7th Cir. 2002): Contreras v. Suncast Corp., 237 F.3d 756, 761 (7th Cir. 2001); Robin, 200
F.3d at 1090; Coco, 128 F.3d at 1179; Plair v. E.J. Brach & Sons, 105 F.3d 343, 347 (7th Cir. 1997).

If Smith succeeds in demonstrating that there is a prima facie case with evidentiary-quality
materials, the burden shifts to GVC to show that it acted without any discriminatory intent when it
terminated Smith. Russell v. Board of Trs., 243 F.3d 336, 341 (7th Cir. 2001) (citing St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 508 (1993)). The defendant’s evidence of a good reason for
terminating the plaintiff “must be devoid of circumstances from which it can be inferred that there

was a real though subtle purpose of discrimination.” Russell, 243 F.3d at 341 If the defendant does

so, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the
proffered reason is pre-textual. See id.; see also Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th

Cir.1999) (citing McDonnell Douglas, 411 U.S. at 804); Robin, 200 F.3d at 1088.

The focus of the pretext inquiry is whether the defendant’s articulated legitimate reason was
honest, not whether it was accurate, wise, or well-considered. See Stewart v. Henderson, 207 F.3d

374, 378 (7th Cir. 2000); see also Tincher v. Wal-Mart Stores, Inc., 198 F.3d 1125, 1129 (7th Cir.

1997) (citing Helland v. South Bend Community Sch. Corp., 93 F.3d 327, 330 (7th Cir. 1996)). In

short, pretext means a lie, “and without proof of a lie, no inference of discriminatory motive can be

drawn.” Olsen v. Marshall & Isley Corp., 267 F.3d 597, 602 (7th Cir. 2001); see also Jackson, 176



Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir, 2000); Spath v. Hayes Wheel’s Int’I-Ind., Inc.,

211 F.3d 392, 396 (7th Cir. 2000). “[A] court must look at all relevant factors, the number of which

depends on the context of the case.” Radue, 219 F.3d at 617. Such factors include whether the

employees “dealt with the same supervisor” and were “subject to the same standards.” Id. 219 F.3d
at 617-18.

Smith cannot point to any individual, male or female, similarly situated to her that did not
suffer her same fate. Smith attempts to categorize Huevelman as a similarly situated employee who
was not terminated immediately for his policy violations, because of his gender. Huevelman in not
similarly situated to Smith. Smith and Huevelman did not have the same supervisors, work in the
same area, or violate the same GVC policies. GVC acknowledges that Huevelman did violate
several of GVC policies. Huevelman took long lunches, brought pizza to his work station, left his
work station without permission, and even passed Smith’s husband’s death certificate around to the
other employees. GVC reprimanded Huevelman for all of these violations, Huevelman’s actions
are indicative of an unacceptable employee, but not someone who is defrauding the company.

Smith knowingly and willfully knowingly violated GVC policy by signing McClenthen up
for a second gambling account without the correct personal information. Smith fails to present any
evidence that shows GVC treated a similarly situated male employee differently. In fact, GVC
presents evidence that it terminated a male employee for actions similar to Smith’s. Therefore,
Smith has not and cannot establish that there are similarly situated males who were treated better
because of their gender.

By failing to establish that GVC treated similarly situated male employee’s more favorably

Smith cannot demonstrate the necessary elements needed to establish a prima facie case. This would



+ Minute Ordos Form (05/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Charles R. Norgle Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 3843 DATE 8/19/2002
CASE Smith vs. Grand Victoria Casino
TITLE
[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
a) oO Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) o Answer brief to motion due. . Reply to answer brief due.
(4) a] Ruling/Hearingon_ set for__— at .
(5) Qa Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) a Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OlLocal Rule 41.1 O)FRCP4I1(a)(t) 1 FRCP4i(a)(2).
ao i [Other docket entry] Before the court on August 16, 2002 was Defendant’s motion for summary
judgment. This court entered summary judgment for the Defendant, terminating the case. The clerk shall
enter judgment for the Defendant pursuant to Fed. R. Civ. Pro. 58.
ay a [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court.
No notices required. number of notices
Notices mailed by judge’s staff. AUG 2 1 2002
Notified counsel by telephone. date docketed a
WV | Docketing to mail notices. wd > \
cfonan
Mail AO 450 form. pees 1 ekg dain of
Copy to judge/magistrate judge. i
courtroom ¢ dale ated notice
deputy’s
initials
Date/time received in
central Clerk's Office anaiing deputy initials



evidence to support her accusations. The facts presented show that the gambling accounts do give
value to customers. GVC mails coupons to customers that can be redeemed for cash, a real benefit.
GVC has proffered a legitimate reason for terminating Smith, to which she can not substantially
rebut or show that it is merely pre-textual. An employer is not precluded from taking action to nip
fraud in the bud rather than wait until a more serious injury is sustained.

GVC’s motion for summary judgment is meritorious. Smith has been unable to demonstrate
the necessary elements needed to establish a prima facie case of gender discrimination or that GVC’s
reasons for termination were pre-textual. Smith has failed to establish her gender discrimination

claim

Wi. CONCLUSION
Defendant’s motion for summary judgment brought pursuant to Fed. R. Civ. P. 56 is granted.

IT IS SO ORDERED.

ENTER: Lb, Ay

CHARLES RONALD NORGLE, SR., vicke ict Judge
DATED: us ZL Zi O02



(7th Cir. 2002); Contreras, 237 F.3d at 761; Espo Eng’g Corp., 200 F.3d at 1090; Biolchini v. Gen.

Elec. Co., 167 F.3d°1151, 1154 (7th Cir. 1999); Plair, 105 F.3d at 347.

Generally, the issue of whether an employee was meeting an employer’s legitimate
employment expectations is not the employee’s past performance but “whether the employee was
performing well at the time of [her] termination.” Karazanos v. Navistar Intern. Transp. Corp., 948

F.2d 332, 336 (7th Cir. 1991); see also Fortier v. Ameritech Mobile Communications Inc., 161 F.3d

1106, 1113 (7th Cir. 1998). Furthermore, prior job performance “evaluations, standing alone, [do
not] create a genuine issue of triable fact when . . . there have been substantial alterations in the
employee's responsibilities and supervision in the intervening period.” Peele v. Country Mut. Ins.

Co., 288 F.3d 319, 328-29 (7th Cir. 2002) (quoting Fortier, 161 F.3d at 1113 (emphasis added)).

Smith was performing her job to the expectations of GVC before she was fired. Smith had
no bad evaluations, no write-ups, or complaints by her supervisors or co-workers as to how she was
performing her job. GVC never had any problems with Smith’s performance at work except for the
single instance that led to her termination. The only issue regarding her job performance was her
relationship with McClenthen, to which she was told not to mix business with pleasure. GVC’s
argument that because Smith defrauded the company by creating a second gambling account for
McClenthen and was therefore not satisfying the legitimate expectations is not persuasive on the
issue of establishing a prima facie case. Rather it is persuasive on the overall issue of why GVC
terminated Smith, as described later.

Smith fails to present evidence to substantiate the final element of a prima facie case: whether

a similarly situated male employee was treated more favorably. To meet her burden of

demonstrating that another employee is “similarly situated,” Smith must show that there is someone

who is directly comparable to her in all material respects. Greer, 267 F.3d at 728; Radue v.

7



the mailing address was Smith’s residence. Upon learning of Smith’s actions, GVC terminated her
employment for violation of GVC policies regarding conflict of interest and fraud.

Smith has now filed a claim against GVC for violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C.S. §§ 2000e et seq. GVC, in turn has filed a motion for summary judgment
brought pursuant to Fed. R. Civ. P. 56(1). The court grants GVC’s motion for summary judgment
for the following reasons.

II. DISCUSSION
A. Summary Judgment Standard

Summary judgment is permissible when “there is no genuine issue as to any material fact and
. .. the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield
v. Consolidated High School District No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more

than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT

Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999); see also ‘Shank v. William R, Hague

Inc., 192 F.3d 675, 682 (7th Cir. 1999) (stating that a party opposing summary judgment must
present “what evidence it has that would convince a trier of fact to accept its version of events.”).
A defendant is entitled to put the plaintiff to his proofs and demand a showing of the evidence. See

e.g. Navarro v. Fuji Heavy Industries. Ltd., 117 F.3d 1027, 1030 (7th Cir. 1997). If the plaintiff fails

to come up with the required proof, the defendant is entitled to summary judgment. See id. It bears
repeating that the plaintiff must present evidence, rather than speculation and conclusions without

factual support. See Rand v. CF Industries, Inc., 42 F.3d 1139, 1146-47 (7th Cir. 1994).



accumulates points on his account based upon the amount of money he gambles or by redeeming
promotional coupons sent to all customers with accounts. These points can then be redeemed for
money. It was Smith handling of the gambling accounts that lead to her termination.

In December of 1999, Smith began a romantic relationship with Joe McClenthen, a customer.
Eventually McClenthen began living with Smith. GVC became aware of Smith’s relationship when
McClenthen’s wife contacted them and requested that GVC put an end to the relationship. Sharon
McGill, Director of Human Services, spoke with Smith about the issue. Because GVC does not have
a policy against dating customers, Smith was merely told to avoid any situations that could lead to
a conflict of interest between a customer and GVC.

In the summer of 2000, Smith complained to GVC about another employee’s actions, Donald
Huevelman. Smith complained that Huevelman had acquired a copy of her late husband’s death
certificate and was showing it to other employees as a way to harass and embarrass Smith. Smith
complained to three different individuals, requesting that Huevelman be terminated for his actions.
Huevelman was not terminated at that time,” but he was reprimanded by Human Resources.

In February of 2001, approximately six months after Smith complained to GVC about
Huevelman’s conduct, her own conduct came under suspicion. Nancy Fierok, Smith’s supervisor,
discovered that Joe McClenthen had two gambling accounts under different names. Fierok
questioned Smith, and Smith admitted to setting up the second account for McClenthen. The second

account was set up using a different name, Joe Mac, there was no social security number given, and

? Although Huevelman was not terminated at that time by GVC, he was terminated later
for various infractions.



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

EASTERN DIVISION
PATRICIA SMITH ) DOCKETED
Paintf } No.01C3843 AUG 2 12002
. } HONORABLE CHARLES R. NORGLE
GRAND VICTORIA CASINO,
Defendant. )

OPINION AND ORDER
Charles R. Norgle Sr., District Judge

Before the court is Defendant’s motion for summary judgment brought pursuant to Fed. R.

Civ. P. 56. For the following reasons, Defendant’s motion is granted.
I. BACKGROUND!

Plaintiff, Patricia Smith, was previously employed by Defendant, Grand Victoria Casino
(GVC”). GVC is a river-boat gambling establishment located in Elgin, Illinois. Smith began
working at GVC as a cashier in the gift shop. Eventually, Smith was transferred to the position of
slot club hostess. “As a slot club hostess, [Smith] was required to approach customers and sign up
new customers with gambling ‘accounts,’ redeem cash from customer accounts, add ‘points’ to
customer accounts when presented with a valid coupon, mingle with customers, and provide general
customer services.” (Def.’s Mot. for Summ. J. p. 2).

Normally a customer at GVC acquires a gambling account. A gambling account is used by

GVC to keep track of the amount of money a player gambles. A customer with a gambling account

' All facts are taken from the parties Local Rule 56.1 statements, accompanying briefs.

Disputed facts are noted in the text.