Statément { 48). At the meeting, Plaintiff was concerned about how her absences were reflecting
on her employment. Plaintiff indicated that she “thought excused days off were not considered
absentecism in [her] prior experience.” Plaintiff had not realized that the absences were considered
absentee days. (Id., J 49).

Schau also had contacted Borfitz to request that Plaintiff be counseled for her absences. In
response to Borfitz’s request, Schau created a list of the fiftecn dates that Plaintiff had missed up to
that time and forwarded the list on February 20, 2001. (Def.’s 56,1(a)(3) Statement { 51).

During the first ninety days of Plaintiff's employment, Gnoffo also talked to Schau and
Borfitz about Plaintiff's absences. Gnoffo told Schau and Borfitz that Plaintiff's absences were
excessive and that such absences were causing problems in the branch. (Def.’s 56.1(a)(3) Statement
4] 52). Plaintiff has identified sixteen absences as follows: October 30, 2000 - grandfather sick;
October 31, 2000 - grandfather sick; November 1, 2000 - grandfather sick; November 24, 2000 -
doctor appointment; November 30, 2000 - ultrasound appointment; December 18, 2000 - son sick;
December 19, 2000 - son sick; December 26, 2000 - son sick; January 10, 2001 - Plaintiff sick;
January 11, 2001 - Plaintiff sick; January 12, 2001 - Plaintiff sick; January 15,2001 - Plaintiff sick;
February 12, 2001 - grandfather sick; February 19, 2001 - husband sick; February 20, 2001 - husband.
sick; and February 23, 2001 - house closing. Ten of the sixteen absences had nothing to do with
Plaintiff's pregnancy. (Id., 4j 53).

Premium’s Chief Executive Officer, Mark Hoppe, set a policy that no employee could use
Premium’s ovemight courier accounts for personal use without first seeking permission from him.
He informed Premium’s supervisory and management personnel, the accounting department, and

other employees of that policy throughout the company’s existence. It was Hoppe’s practice, during



ANALYSIS

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
All the evidence and the reasonable inferences that may be drawn from the evidence are viewed in
the light most favorable to the nonmovant, Miller y. American Family Mutual Ins. Co., 203 F.3d
997, 1003 (7th Cir. 2000), Summary judgment may be granted when no “reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).

Discrimination on the basis of pregnancy is unlawful under Title VIL as amended by the
Pregnancy Discrimination Act, See 42 U.S.C. § 2000e-2(k); Gleason v. Mesirow Fin., Inc. 118 F.3d
1134, 1139 (7th Cir. 1997) (Gleason). Title VU, as amended by the Pregnancy Discrimination Act,
protects a woman from being fired because of her pregnancy. However, it does not protect a
pregnant woman from being fired without good cause. See Gleason, 118 F.3d at 1139.

There are two methods for a plaintiff to establish pregnancy discrimination: (1) evidence of
intentional discrimination and (2) the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Maldonado v,. U.S. Bank, 186 F.3d 759, 763 (7th Cir.
1999) (Maldonado).)

Evidence of an intentional discrimination can be either direct or circumstantial. Direct

’Plaintiff does not argue that she has established pregnancy discrimination under the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Instead, she argues that she has established pregnancy discrimination via evidence of intentional
discrimination,



On February 26, 2001, Plaintiff's employment with Premium was terminated. On that day,
Plaintiff was called into Gnoffo’s office. Borfitz was also prescnt in Gnoffo’s office. (Def.’s
56, 1(a)(3) Statement 28). Borfitz advised Plaintiff that they had discovered that she had been using
company equipment and services for personal use and decided to release her because of such use.
Plaintiff became “tearful” and indicated that she had paid for the services. Plaintiff went to another
room, opened a drawer, and returned with a sheet of paper from UPS indicating the cost of the
shipment and a personal check attached to it. (Id., 4] 28). The check and invoice was unrelated to
any of the three Maryland packages that Hoppe had discovered. Rather, the package was sent on
October 25, 2000, to Plaintiff's husband’s attorney. (Id., ]] 29).

Borfitz also informed Plaintiff that she had excessive absences from work and that there had
been work performance issues. Plaintiff's attendance was an issuc because of the number of days
she missed in a short period of time. Borfitz also explained that there had been problems with route
summaries, load shects, and an “Oklahoma audit”, (Def.’s 56.1(a)(3) Statement 4] 30). Pregnancy
was never discussed between Plaintiff and anyone else at Premium on the date of her termination.
(Id., 731).

On the day that Plaintiff was terminated, Borfitz created and placed a memo in Plaintiff's file.
The memo stated that Plaintiff's employment was terminated due to excessive absenteeism, poor
quality of work, and personal use of company-paid shipping. (Def.’s 56.1(a)(3) Statement | 32).
After Plaintiff's termination, Plaintiff ’s job responsibilities were transferred to an existing employee,
Vicky Smith. (Id., 4 34).

Plaintiff used Premium’s UPS account number to send her packages. (Def.’s 56.1(a)(3)

Statement 35). A total of five packages were sent by Plaintiff. The dates of the shipments were



the period of Plaintiff's employment, to review invoices sent to Premium by its vendors, including
UPS. (Def.’s 56.1(a)(3) Statement f 21). In Hoppe’s review of UPS invoices during February 2001,
he discovered three shipments that did not appear to be connected with any of Premium’s vendors
or customers. Three shipments were sent to a “BLF” in Riverdale, Maryland. The destination made
him suspicious because Premium docs not do business in Maryland; he believed initials were used
to mask the fact that the shipments were sent to an individual as opposed to a corporate customer and
because the packages were sent just before Christmas. (Id., { 22).

On or about February 25, 2001, Hoppe spoke with Borfitz about the three shipments. Hoppe
requested that Borfitz find out who had sent and received the packages. If the three packages were
sent for personal reasons, it was Hoppe’s desire that the offending party’s employment be terminated.
At that time, Hoppe did not know who sent the shipments. (Def.’s 56.1(a)(3) Statement { 23).

In addition to contacting Borfitz, Hoppe contacted Premium Manager, Katherine Moberg,
to ask her if she could identify the Maryland addressee, Moberg enlisted Gnoffo to help, and they
unsuccessfully attempted to access the UPS tracking system via Plaintiff's computer. Moberg and
Gnoffo then inspected the UPS files maintained by Plaintiff in a file drawer and found
documentation for the Maryland shipments, along with other UPS documentation and one of
Plaintiff's personal checks. (Def.’s 56.1 (a)(3) Statement 24). Borfitz performed a search in the
employce database and matched the Maryland address with Plaintiff's emergency contact
information. Borfitz then contacted Gnoffo “to talk about .,, what had just been discovered; and, at
that point, it was agreed that Sara would be released ... [because of misuse of company property and
services.” It did not matter if Plaintiff had attempted at some point to tender payment for the UPS

services because Plaintiff did not have authorization from Hoppe to use the services. (Id., ] 25).



7 60). Plaintiff recalls noticing that Schau gave her less work and that tasks assigned by Schau
became minimal. (Id., 61).

Gnoffo also had problems with Plaintiff’s work, including failing to properly distribute work
documents and failing to deliver customer faxes when they arrived, Gnoffo discussed the fax
problem with Plaintiff at least three times, and Schau also discussed it with the Plaintiff. (Def.’s
56.1(a)(3) Statement ff] 62-63). Plaintiff recalls being asked to check for faxes. (Id., | 64). Prior
to Plaintiff's termination, Schau had several discussions with Gnoffo regarding Gnoffo’s lack of
satisfaction with special projects that had been given to Plaintiff. (1d., 4] 65).

Premium became aware of Plaintiff’s pregnancy on November 13, 2000. (Def.’s 56.1(a)(3)
Statement ¥ 72). During her tenure at Premium, Plaintiff believed that Borfitz began treating the
news of her pregnancy as if she was not happy for Plaintiff. Plaintiff held this belief because Borfitz
would frequently ask Plaintiff about her pregnancy, including how the pregnancy was going, was she
having complications, and was she returning to work after the baby was born. (Id., 4 73).

At their depositions, Gnoffo and Borfitz testified that the unauthorized use of Premium’s
UPS account was the only thing discussed with Plaintiff the day that she was terminated. (Plaint.'s
56.1(b)(3) Statement ff 2-3). In response to Plaintiff's claim for unemployment compensation,
Borfitz indicated on a form that Plaintiff was terminated for absenteeism and poor work
performance. (Id, {| 5). In its response to Plaintiff's EEOC charge, Premium identified Plaintiff's
poor work performance, excess absenteeism, and unauthorized use of the UPS accountas the reasons
for her termination. (Id., 11). Plaintiff did not receive any written warnings concerning her
absenteeism or poor work performance, and she successfully completed her ninety-day probationary

period. (Id., ff 14-23).



Minute Cordes Form (06/97)

United States District Court, Northern District of llinois

Name of Assigned Judge - Sitting Judge if Other
yor Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 02 C 3779 DATE 11/4/2003
CASE Lyons vs, Premium Armored Service
TITLE
[ln the following 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) aq Filed motion of | use listing in “Motion” box above]
(2) QO Bricf in support of motion due ne
(3) Oo Answer brief to motion duc Reply to answer bricf due.
(4) Oo Ruling/Hearing on set for _ atl.
(5) a) Status hearingfheld/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. .
(7) oOo Trial[set for/re-set for] on __ at _
(8) i] ([Benct/Jury trial] [Hearing] held/continued to __at
(9) q This case is dismissed | with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 ChFRCP41(a\(1) 0 FRCP41(a)(2).

qo) [Other docket entry] Status hearing held. For the reasons stated in the attached memorandum

opinion and order, defendant's motion for summary judgment [19-1] is denied. Enter Memorandum

Opinion and Order. Pretrial order deadline is 11/19/03.
(1) [For further detail see order attached to the original minute order.]

No nutives required, advised in open court,

‘No notices required,

x | Notices muiled by judge’s staif.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge.

wo Seo Meno3
<- dite mailed notice

courtroam
deputy’s
initials

MF

Date/time received in’.

central Clerk's Office nailing deputy initials



of the UPS account. However, at their deposition, Bortitz and Gnoffo testified that Plaintiff's
unauthorized use of the UPS account was the reason for Plaintiff's termination. Later, Borfitz
completed a response to Plaintiff's claim for state unemployment in which the stated reasons for
Plaintiff's termination was excessive absentccism and poor work performance. In the present
motion, Defendant describes the failure to include the unauthorized use of the UPS account in
response to Plaintiff's claim for state unemployment as an “oversight”. In response to PlaintifPs
EEOC charge, Defendant's asserted that Plaintiff was terminated because of excessive absentceism,
poor work performance, and unauthorized use of the UPS account.

Viewing the contested statements of Borfitz concerning Plaintiff's pregnancy and
Defendant’s differing explanations for Plaintiff's termination and the reasonable inferences that may
be drawn from such evidence in the light most favorable to the Plaintiff, Plaintiff has demonstrated
that a genuine issue of material fact exists as to whether Plaintiff was terminated, at least in part,
because of her pregnancy, See Zaccagnini v. Cas. Levy Circulating Co., 338 F.3d 672, 676-77 (7th
Cir. 2003) (differing reasons for termination precluded summary judgment), Perdomo v. Browner,
67 F.3d 140, 145 (7th Cir. 1995) (“Because a fact-finder may infer intentional discrimination from
an employer's untruthfulness, cvidence that calls truthfulness into question precludes a summary
judgment.”).

CONCLUSION

For the reasons stated above, Defendant’s Motion for Summary Judgment is denied.
A

4

Le pspet
JOHN W. DARRAH
. __ Unite States District Judge

Daved eZee ufe 4 200%

it


evidence of discrimination consists of an admission by the decision-maker that his or her actions
were taken because of Plaintiff's pregnancy. See Maldonado, 186 F.3d at 763. Circumstantial
evidence of intentional discrimination can be demonstrated by any of the following or a combination
of the following: (1) suspicious timing, oral or written ambiguous statements, behavior toward or
comments directed at other employees in the protected group, and other evidence from which an
inference of discriminatory intent can be drawn; (2) evidence that the employer systematically treated
other similarly situated, non-pregnant employees better; or (3) evidence that the plaintiff was
qualified for the position but passed over in favor ofa person not having the forbidden characteristic
and that the employer’s stated reason for its decision is “unworthy of belief, a mere pretext for
discrimination”. Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).

Here, Plaintiff does not present any direct evidence of discrimination, i.e., an admission by
the decision-maker that his or her actions were taken because of Plaintiff’s pregnancy. Instead,
Plaintiff attempts to present circumstantial evidence to demonstrate that she was terminated because
of her pregnancy.

Plaintiff contends that an inference of discriminatory intent can be drawn from Borfitz’s
statements to her concerning her pregnancy and Defendant’s differing reasons for her termination
at different times.

Plaintiff testified at her deposition that Borfitz would frequently ask Plaintiff about her
pregnancy, including how the pregnancy was going, was she having complications, and was she
retumming to work after the baby was born. Borfitz denied that most of these conversations took
place. Furthermore, at the time of Plaintiff's termination, Defendant informed Plaintiff that she was

being terminated because of excessive absenteeism, poor work performance, and unauthorized use

10



October 25, 2000; December 5, 2000; December 20, 2000; December 22, 2000; and
December 27, 2000. (Id., {| 39). Plaintiff claims that her personal use of the UPS account was
authorized in each instance by Schau, To obtain such permission, Plaintiff would have “physically
walked into his office and asked him.” (Id., 41). Plaintiff does not recall sending a personal
package on December 5, 2000. However, if she did, she would not have sent the package without
first walking in and asking Schau’s permission. (Id., 38). The week of December 5, 2000, Schau
was out of the office. (Id. 41), Schau has no recollection of Plaintiff's ever asking him for
permission to use the UPS account for personal reasons; and he had never given authorization to
anyone at Premium, including Plaintiff, to use the UPS account for personal reasons because he docs
not have authority to do so. (Id., { 42).

Plaintiff was also terminated for performance-related reasons, (Def.’s 56.1(a)(3) Statement
157). One of Plaintiff’s performance-related problems included inaccuracies in her work, Plaintiff's
supervisors did not feel that Plaintiffs follow-up was good. There were simple tasks that Plaintiff
was assigned that she was not performing; some of these were costing Premium moncy, such as
inaccurate preparation of vault logs. (Id., 57). Borfitz knew that Schau was frustrated with
Plaintiff's performance, Schau had discussed Plaintiff's unsatisfactory work performance with
Borfitz during the first ninety days of Plaintiff's employment. Schau also discussed his concerns
about the inadequacies in Plaintiff's work with Gnoffo during Plaintiff's fourth month at Premium.
(Id., 158). At one time, Schau assigned a zip code project to Plaintiff, in which she was to fill in zip
codes ona spread sheet. Because the project was not completed as promised, Schau took the project
away from Plaintiff and completed it himself. (Id., | 59). Other projects were assigned to Plaintiff

by Schau and were completed. [lowever, many were completed incorrectly and with errors. (Id.,



Excessive Absenteeism or Lateness

In general, two (2) absences in a 90-day period, or a consistent pattern
of absence, will be considered excessive, and the reasons for the
absences may come under question.

oe

Be aware that excessive absenteeism, lateness or leaving early may
lead to disciplinary action, including possible dismissal.

(id., | 13). The Employee Manual also contains written policies against employees using its mail,
property, facilities or services for personal purposes. The Employee manual provides:

Personal Phone Calls & Mail

ek

Do not use Premium Armored Services as a personal mailing address,

and do not put personal mail in the stacks that are to be run through

the postage meter. Although the amount may seem small, it is still

considered theft.

Theft

Property theft of any type will not be tolerated by Premium Armored

Services. We consider property theft to be the unauthorized use of

company services or facilities or the taking of any company property

for personal usc.
(Id., § 14). Premium’s handbook also provides that unsatisfactory ot careless work may be subject
to disciplinary action, including immediate dismissal. (Id., { 15). The Employee Manual also
provides that no one, other than the Chief Executive Officer of Premium, may alter or modify any
of the policies in the manual and that no statement by a supervisor or manager may be interpreted

as a change in policy nor will it constitute an agreement with an employee. (Id., ] 16).

In December 2000, Plaintiff had a meeting with Borfitz. At that time, Borfitz discussed with

Plaintiff the four-and-onc-half days that Plaintiff had been absent to date. (Def.’s 56.1(a)(3)



When Plaintiff began working at Premium, she reported to Cliff Schau and Kathy Gnoffo.
(Def.’s 56.1(a)(3) Statement § 5). Schau was a Regional Branch Manager for the region that
included Plaintiffs branch. (Id., ] 6). Gnoffo was Premium’s Compliance Manager, As the
Compliance Manager, Gnoffo set and enforced the vault and cash procedures throughout all of
Premium’s branches. (Id., 7), Mary Borfitz was the Vice President of Human Resources for
Premium during Plaintiff's employment. (Id., 8).
Borfitz confirmed Premium’s offer of employment to Plaintiff in a letter dated
September 29, 2000. Along with the letter, Premium shipped a copy of its Employee Manual.
(Def.’s 56.1(a)(3) Statement { 9). Plaintiff received the Employee Manual and signed an
acknowledgment form to that effect on October 8, 2000. In that acknowledgment form, Plaintiff
indicated that: “I have received and am responsible to read the copy of the Premium Armored
Services imployee Manual dated March 31, 1997.” (Id., | 10). Premium’s Employee Manual
contained the following non-discrimination clause:
The only things we require of you are performance and good team
attitude; however, employment at Premium Armored Services is “at
will”. No one will be denied opportunitics or benefits on the basis of
age, sex, color, race, creed, national origin, religious persuasion,
marital status, political belief, or disability that docs not prohibit

performance of essence job functions; nor will anyone receive special
treatment for those reasons,

(id., 11).
Premium employees did not begin to accrue sick leave or vacation time until after ninety days

of employment. (Def.’s 56.1(a)(3) Statement 12). Premium’s Employee Manual provides:



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF LLLINOIS

EASTERN DIVISION
SARA JEAN LYONS, ) ie
) \)
Plaintiff, )
) No. 02 C 3779 wr
ve )
) Judge John W. Darrah
PREMIUM ARMORED SERVICES, INC. )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Sara Jean Lyons, filed a complaint against Defendant, Premium Armored Services,
Inc., alleging discrimination (Count I) in violation of Title VII by terminating her employment due
to her pregnancy and retaliatory discharge (Count Tl) for terminating her employment because her
husband filed a workers’ compensation claim. Subsequently, this Court granted Defendant’s Motion
to Dismiss Count II. Presently before the Court is Defendant’s Motion for Summary Judgment.

BACKGROUND

Premium is an armored car service that provides cash replenishment and maintenance
services for automated teller machines. (Def.’s 56.1(a)(3) Statement 1), Plaintiff was referred to
Premium by her husband, Phil Lyons, who is also employed at Premium. (Id., { 3).

Plaintiff began working for Premium on October 23, 2000. Plaintiff was hired to provide
general reception duties at one of Premium’s branch facilities. Plaintiff's job duties included
answering the telephone, distributing papers to the appropriate people, collecting and delivering the

mail on a daily basis, processing ingoing and outgoing United Parcel Services (“UPS”) shipments,

and periodically checking and distributing faxes. (Def.’d 56.1(a)(3) Statement 4 4).