Paz, Rosaura v. Wauconda Healthcare ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2837
ROSAURA PAZ,
Plaintiff-Appellant,
v.
WAUCONDA HEALTHCARE AND
REHABILITATION CENTRE, LLC,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 3341—Samuel Der-Yeghiayan, Judge.
____________
ARGUED FEBRUARY 24, 2006—DECIDED SEPTEMBER 19, 2006
____________
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Rosaura Paz is a Hispanic woman
of Mexican descent. She began working as a cook at
Wauconda Healthcare and Rehabilitation Centre
(“Wauconda”) in December of 2000. After her employment
ceased at Wauconda, she filed suit under Title VII for
national origin discrimination, pregnancy discrimination,
and retaliation. Wauconda moved for summary judgment on
all counts, arguing that Paz was not terminated, but
instead, had abandoned the job. The district court granted
Wauconda’s motion and denied Paz’s motion for reconsider-
ation. Because there are several issues of material fact in
2 No. 05-2837
dispute, we conclude that summary judgment was inappro-
priate.
Our task in reviewing a summary judgment is to deter-
mine whether there are any issues of material fact that
require a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d
918, 920 (7th Cir. 1994). We review the facts in the light
most favorable to the non-moving party. FED.R.CIV.P. 56(c);
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986).
Accordingly, we present the events leading up to this suit in
the light most favorable to Paz, and note, where appropri-
ate, the conflicting facts as presented by Wauconda.
Paz started working as a cook for Wauconda in December
of 2000. She was interviewed and hired for the job by
Charlene Li, who became her supervisor. In fact, Li hired
Paz on the spot and even had her work a few hours that
same day. Li was Wauconda’s dietary manager from
October 2000 through 2003. During Paz’s tenure at
Wauconda, Li assigned Paz her work schedule, supervised
her job duties, and evaluated her.
In her formal performance evaluation, Paz received an
“excellent” rating in all ten categories. She had also re-
ceived a merit-based pay increase.
Despite her success at work, Paz contends she was
subjected to repeated discrimination by her supervisor. Li
often made disparaging comments about Mexicans. Notably,
other Wauconda employees reported that Li had said
several times that “Mexicans cause problems and come to
the United States to take away jobs from American people.”
Wauconda admitted that Li had told at least two other
employees that “I am not going to hire any Mexicans as
they cause too many problems.”
Paz testified at her deposition that, in August 2002, Li
had said directly to her, “God, you people just come to [the]
United States to cause so many problems and steal Ameri-
can people’s job[s].” A co-worker had reported this comment
No. 05-2837 3
to an assistant administrator, who in turn questioned Li.
Paz also confirmed for the assistant administrator that Li
had made the comment but the administrator told Paz not
to tell anyone about it and that they needed to keep it
confidential.
Paz and other Hispanic employees also reported that Li
had treated the Hispanic employees less favorably than
their white counterparts. Li had allowed white employees,
but not Hispanic employees, to take long, frequent breaks.
On one occasion, when Hispanic and white employees had
been taking a smoke break together, Li had instructed
the Hispanics (including Paz) but not the whites to get back
to work. When Li needed something to be cleaned, she
would call on one of the Hispanic employees. Li also turned
off the radio whenever it was tuned to a Spanish-speaking
station and one day, threw Paz’s radio away.
At times, white employees were scheduled to have a day
off after every two days on while the Hispanic employees
were scheduled to work six days straight. Li made Hispanic
employees perform the less desirable job duties, such as
washing floors and other jobs that were considered
the hardest in the kitchen but did not require the same
of white employees at the same job level.
Paz also testified that Li started treating Paz differently
after learning that Paz was pregnant. When Paz first told
Li she was pregnant, Li just shook her head. The next day,
Li asked Paz why she wanted more kids, explaining that
two kids were enough and that three children would be
too hard for Paz. Li then told Paz “[y]ou’re not going to
be allowed to work, to just start getting . . . . Do you know
what, I think you should move to dietary aide instead of
be a cook.” Li explained that Paz would be better suited for
the position of dietary aide since she would not be able to
lift heavy objects. Paz explained that she could do her job
and that she was only about one or two weeks pregnant.
4 No. 05-2837
The following day Li again approached Paz about her
pregnancy. Li said to Paz, “Why don’t you have an abor-
tion?” Li said that in China, women are only allowed to
have two kids, and only one girl. She explained to Paz that
it was nothing to feel bad about and admitted to having had
an abortion herself. Every day thereafter, Li would tell Paz
that she should have an abortion.
Li’s comments eventually wore on Paz. Paz cried to her
husband and said that she was afraid Li would fire her
if she did not have an abortion. After feeling that she
had no choice if she wanted to keep her job, Paz told Li
she had decided to have an abortion. Paz testified that Li
said, “Oh, good for you” and gave her a big hug. For the
next two days, Paz said that Li treated her nicely and would
laugh and joke with Paz. Paz reluctantly went to
the abortion clinic that weekend. The clinic staff told Paz
that she was not far enough along in her pregnancy to have
an abortion and she would have to come back in a few days.
Paz changed her mind when she left the clinic and decided
against an abortion.
The following Monday, Paz told Li that she had decided
against an abortion. Li shook her head and walked away.
Paz testified that since that day, Li had treated her differ-
ently and would find excuses to blame Paz for anything that
went wrong. Li also would not allow the employees to talk
about babies. Wauconda stated that when a white woman
was pregnant, Li had made similar comments.
On October 24, 2002, Paz burned one tray of bacon out of
several trays she had prepared for breakfast. According to
Paz, she put the burned bacon on top of the grill and did not
serve it to the residents. According to Li, Paz served the
bacon to the residents. Li noticed the burned tray of bacon
as soon as she entered the kitchen and began yelling at Paz.
She said, “You [are] always wasting food like that. . . .
[s]omebody’s going to get fired the end of this month.” Paz
No. 05-2837 5
walked away from Li and started washing dishes at the
sink but Li followed her and continued to yell at her. Paz
asked why Li was treating her like this lately and Li
responded, “You know the reason.” Paz burst into tears and
a co-worker asked Paz why she let Li scream at her. Paz
then went to find Cheryl Morris, Wauconda’s acting admin-
istrator.
Paz told Morris that Li had been yelling at her and had
said that someone was going to get fired at the end of the
month. She also detailed for Morris the way Li treated
Hispanic employees and told her about Li’s comments that
she found offensive. Morris told Paz that she was not
just the acting administrator, but represented the corporate
office as well. Morris testified at her deposition that she
told Paz she would take care of it.
Paz told Morris that she was not feeling well and asked
for permission to take the rest of the day off, which Morris
permitted. When Paz went to retrieve her coat and tell Li
she was leaving, Li responded, “If you walk out that door,
don’t come back.” Other Wauconda employees were pre-
sent during this exchange and corroborated this statement.
Paz returned to Morris and told her what Li said but Morris
told her not to worry about it and to just go home.
Later that day, Morris spoke with Li and explained Paz’s
accusations. Li denied the allegations and replied with a list
of complaints about Paz. At her deposition, Morris testified
that she had responded to Li, “How can you sit here and tell
me now that [Paz is] always late, you made a lot of conces-
sions for her, she yells all the time, and not have anything
written down . . . . I don’t buy it.” Still, based on Li’s
account of the bacon incident, Morris told Li to write Paz up
for serving burned bacon.
The next morning, Paz arrived at work at 6:00 a.m. for
her scheduled shift. Carla Janacek, a dietary aide, was
performing the cooking duties that belonged to Paz. Scott
6 No. 05-2837
Rzepka, an employee who was scheduled to be off that day,
was performing Janacek’s duties. Paz asked Janacek
what was going on and Janacek said, “I don’t know.
Charlene [Li] just told me that she want me to cook.” Paz
went to check the work schedules posted on Li’s door and
saw that her name had been crossed off for the previous day
and the current day. She also saw that she had not been
assigned any days on the new work schedule for the
following week. Paz took the schedules down, photocopied
them, and replaced them on the door. These work schedules
were submitted to the district court.
When Li arrived at work a few hours later she did not say
anything to Paz. After a meeting, Li returned to the kitchen
where she continued to ignore Paz. Finally, Paz confronted
Li and asked her why she was scratched off the schedule
and why she had not been assigned any days for the
following week. Li replied, “Remember yesterday? You’re
fired.” Paz was stunned and stood at Li’s door for a few
minutes waiting for an explanation but Li ignored her.
Believing she was fired, Paz gathered her belongings and
left. Meanwhile, Wauconda contends that Paz walked off
the job.
Paz was unaware of the employee warning that Li had
filed against Paz the previous day because Li never told her
about it. The warning notice criticized Paz for burning the
bacon, yelling at Li, and going to Morris “complaining about
some other issues that she created to support her anger.”
The notice also said that when Paz returned to the kitchen
on October 24 to say that she was leaving for the day, Li
asked her whether that meant she was quitting. Li wrote on
the notice that Paz replied, “I don’t care, up to you.” Paz
testified at her deposition that she never said this.
Wauconda employees who witnessed the exchange dispute
Li’s account. Paz also disputes several other items in the
warning notice.
No. 05-2837 7
Paz was unaware, since Li did not tell her, that once Li
told her she was fired and Paz left on October 25, Li wrote
a second warning notice. In the warning notice, Li stated
that “[e]mployee left the job without telling anybody. Action
to be taken—suspension. Consequence should incident
occur again—dismissal. Not able to get signature.”
On Monday, October 28, Li issued a third and final notice
for Paz, and again Paz was not told about it. The third
warning notice was for an attendance violation and stated,
“No call, no show, job abandonment.” Paz, on the other
hand, contends the reason she did not show up for work on
Monday is because she had been fired on the previous
Friday.
At her deposition, Li denied the discrimination allega-
tions and also denied ever pressuring Paz to have an
abortion. Li said that Morris had never spoken to her about
Paz’s discrimination complaint, yet Morris and Wauconda
admit that such a conversation took place. Li also denied
telling Paz that she was fired. Morris testified that only the
administrator had the authority to fire an employee.
Wauconda moved for summary judgment on all counts.
The district court granted Wauconda’s motion and denied
Paz’s motion for reconsideration. This timely appeal
followed.
Analysis
Paz argues that factual disputes in the record preclude
summary judgment. Specifically, Paz contends that the
disputed accounts of her last days on the job at Wauconda
illustrate that there are several genuine issues of material
fact. We review the district court’s summary judgment
ruling de novo. Abdullah v. City of Madison, 423 F.3d 763,
769 (7th Circ. 2005). As we have explained before, summary
judgment briefs that present different versions of the facts
8 No. 05-2837
arouse our attention given the standard under the Federal
Rules of Civil Procedure. See Pourghoraishi v. Flying J,
Inc., 449 F.3d 751, 753-54 (7th Cir. 2006); Payne v. Pauley,
337 F.3d 767, 770 (7th Cir. 2003).
At summary judgment, “a court may not make credibil-
ity determinations, weigh the evidence, or decide which
inferences to draw from the facts; these are jobs for a
factfinder.” Payne, 337 F.3d at 770 (citations omitted).
Summary judgment is not appropriate if a reasonable jury
could just as easily return a verdict for the non-moving
party. Anderson, 477 U.S. at 248. Viewing the evidence
in the light most favorable to the plaintiff, as we must, we
fail to see how the district court granted summary judgment
for the defendant. Several factual disputes on material
matter are apparent in the record and preclude summary
judgment.
We have long held that a plaintiff may defeat summary
judgment with his or her own deposition. Williams v. Seniff,
342 F.3d 774, 785 (7th Cir. 2003); see also Payne, 337 F.3d
at 771-73 (evidence presented in a “self-serving” affidavit or
deposition is enough to thwart a summary judgment motion
provided it meets the usual requirements for evidence at
summary judgment stage); Winskunas v. Birnbaum, 23 F.3d
1264, 1267 (7th Cir. 1994) (plaintiff can present deposition
testimony demonstrating the existence of a genuine issue of
material fact to ward off the grant of summary judgment).
In this case, Paz’s deposition testimony is filled with
genuine issues of fact based on personal knowledge, and
at this stage, the parties still sharply disagree as to
whether Paz was fired or abandoned her job. Further, Paz’s
testimony is not the only evidence that raise genuine issues
of material fact; time sheets, work schedules, and co-worker
testimony corroborate Paz’s case. Paz contends that Li fired
her the morning of October 25, 2002. She also submitted
time sheets showing that her name was scratched off the
No. 05-2837 9
work schedule on October 24 and October 25. Wauconda
explains that Paz’s name was scratched from the time sheet
because it was Li’s normal course of conduct to scratch
employees names off the schedule if they did not show up
for work. Yet this misses a key point—when Paz arrived at
work at 6:00 a.m. on October 25 (which is corroborated by
her time card), her name was already crossed off the
schedule for the day, before Li had even arrived for work
herself. Moreover, Li’s deposition testimony contradicts that
of Wauconda’s acting administrator, Cheryl Morris. Li
denied ever talking to Morris about Paz’s allegations of
discrimination. But Morris testified that such a conversa-
tion occurred. Dishonesty alone could be a sufficient basis
for a jury to conclude that a defendant is covering up a
discriminatory motivation for an employee’s discharge.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000). The record here, replete with credibility ques-
tions and competing versions of the facts, demonstrates that
this case should be sorted out by the trier of fact.
Aside from the open question as to whether Paz was fired
or had abandoned her job, Paz’s case survives summary
judgment based on the direct evidence in the record. A
Title VII plaintiff can avert summary judgment “either by
putting in enough evidence, whether direct or circumstan-
tial, of discriminatory motivation to create a triable issue or
by establishing a prima facie case under the McDonnell
Douglas formula.” Rudin v. Lincoln Land Cmty. Coll., 420
F.3d 712, 719 (7th Cir. 2005) (citation omitted).
The direct method of proof relies on direct and circum-
stantial evidence to show an inference of intentional
discrimination. In other words, we must be able to infer
from the evidence that Paz was discharged because of her
national origin, pregnancy status, or in retaliation for
complaining of discrimination. Logan v. Kautex Textron
N. America, 259 F.3d 635, 639 (7th Cir. 2001).
10 No. 05-2837
Here, a range of direct method evidence precludes a grant
of summary judgment: the evidence of Li’s discriminatory
remarks toward Mexican workers, her comments and
behavior toward Paz upon learning that Paz was pregnant,
and the curious string of employee warnings against Paz,
which coincided with Paz’s complaints of discrimination. A
trier of fact can infer intentional discrimination on the part
of the employer through certain types of circumstantial
evidence. For example, we have held that suspicious timing,
ambiguous statements, words and actions toward other
employees in the protected group, and “other bits and pieces
from which an inference of discriminatory intent might be
drawn” are among the types of circumstantial evidence that
may illustrate an inference of discrimination on the part of
the decisionmaker. Rudin, 420 F.3d at 720-21 (quotation
omitted).
Specifically, Paz and others noted Li’s remarks that
“Mexicans cause problems and come to the United States to
take jobs from American people.” On other occasions, Li also
told employees that she would not hire any more Mexicans
because they just cause too many problems. These state-
ments, combined with allegations of less favorable treat-
ment to Hispanic employees with regard to job duties,
breaks, and shift assignments, provide the type of direct
method, circumstantial evidence that survives a defendant’s
motion for summary judgment. Further, Li’s comments
about Paz’s pregnancy, her ability to do her job if pregnant,
and repeated suggestions that Paz should have an abortion,
all supply an inference of Li’s animus to a protected class.
Moreover, on October 24, when Li learned that Paz had
accused her of discrimination, Li filed an employee warning
notice for Paz (Paz’s first in almost two years of work) that
even referenced Paz’s complaint of discrimination. Given
the mosaic of direct evidence that Paz presented, we need
not use the McDonnell Douglas burden-shifting test. Rudin,
420 F.3d at 720-21. See also Walker v. Bd. of Regents of
No. 05-2837 11
University of Wis., 410 F.3d 387, 394 (7th Cir. 2005) (“the
key consideration is the totality of these ‘pieces of evi-
dence[,] none conclusive in itself but together composing a
convincing mosaic of discrimination against the plaintiff.’ ”
(citation omitted)).
It is worth mentioning that the district court and
Wauconda were under the mistaken belief that Paz cannot
proceed under the direct method because some of Li’s
comments were made two months prior to her firing. Yet,
how recent the comments were, how extreme, and who
made the remarks are pieces of evidence that inform
whether there was a “mosaic of discrimination.” Walker, 410
F.3d at 394. At summary judgment, a district court cannot
view the record in small pieces that are mutually exclusive
of each other.
Finally, we note briefly that whether Li had the power
to fire Paz is really a question of apparent authority, not
actual authority. See Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 70-71 (1986) (noting that “courts have consistently
held employers liable for the discriminatory discharges by
supervisory personnel, whether or not the employer knew,
should have known, or approved of the supervisor’s ac-
tions.”) While the district court and Wauconda say that Paz
did not know Wauconda’s chain of command, this does not
translate into a finding that Li did not have apparent or
actual authority to fire her. After all, Li had hired Paz,
evaluated her, assigned her work schedule, and oversaw her
work duties. Further, we fail to see why, if an employee’s
supervisor tells her, “You’re fired,” the employee should run
this statement up the ladder just to double-check her
status, as Wauconda argues should be the case. Employers
are frequently liable for employment decisions made by low
and mid-level supervisors, see Faragher v. City of Boca
Raton, 524 U.S. 775, 771-72 (1998); Shager v. Upjohn Co.,
913 F.2d 398, 405 (7th Cir. 1990), and a similar analysis is
appropriate here.
12 No. 05-2837
Conclusion
Given the significant factual disputes in the record, the
district court erred in deciding the case on a motion for
summary judgment. Accordingly, we REVERSE the judgment
of the district court and REMAND for trial.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-19-06