FAMILY MEDICAL LEAVE OF ABSENCE
Our organization complies with the Family and Medical
Leave Act (FMLA). Pursuant to FMLA, an employee is
entitled to take up to twelve weeks during any twelve
month period for: 1. The birth of a child. …
Exhs. B and C to Mendoza Decl.
to Defendant, some time after Ms. Gorman received her
pay increase in February 2015, Andy Mohr's General
Manager, Benjamin Mendoza, began to receive reports of
issues arising between Ms. Gorman and other employees,
including service department team members, technicians,
service writers, and Service Department Director Matt
Pope. Specifically, the complaints included that Ms.
Gorman “gave special treatment to some employees
and less than professional treatment to other
employees.” Mendoza Decl. ¶ 12. Mr. Mendoza
discussed these issues with Mr. Pope and Director of
Operations Eric Spursrud during late summer 2015, but
authorized no disciplinary action at that time. Ms.
Gorman denies that she had any issues with her
co-workers or supervisors, noting that her record is
clear which shows that she was never formally
disciplined or written up for any such complaints.
Considers Restructuring Parts Department
that same time, in late August or early September 2015,
Mr. Mendoza and Mr. Pope discussed making certain
changes in the parts and service department by
implementing a modified staffing arrangement to reflect
their belief that the department perhaps could function
without a manager. Although that change was discussed,
no immediate action was taken to effectuate it.
Interaction with New Parts Department Employee
August 31, 2015, Ms. Gorman was involved in a motor
vehicle accident while commuting to work. She reported
the accident to Andy Mohr who notified its worker's
compensation carrier. Ms. Gorman was absent from work
for a few days as a result of the accident. While she
was recovering from the accident, Andy Mohr hired Monty
Havins as a Parts Counter Representative. Mr. Havins
had prior parts department and management experience
and was knowledgeable about the Nissan brand. Because
Ms. Gorman at that point was still off work following
her accident, she was not involved with the hiring of
Mr. Havins. According to Defendant, upon her return to
work, Ms. Gorman “did not want to work with [Mr.
Havins] and appeared to be threatened or jealous of his
experience.” Def.'s Ans. to Interrog. No. 10.
some point in late September 2015, Ms. Gorman was
scheduled to cover certain parts department duties that
had been assigned to Mr. Havins during her absence.
However, Ms. Gorman left the dealership for a
doctor's appointment only a few minutes after she
had arrived that day, leaving Mr. Havins with the
responsibility of covering all parts department duties
while she was away from the dealership. Ms. Gorman
returned approximately two and a half hours later, but
remained at work for only about ten minutes before
leaving the dealership for another hour and a half,
again leaving Mr. Havins to assume full responsibility
for the parts department duties. According to Mr.
Havins, because Ms. Gorman had been on vacation the
Friday and Saturday preceding her doctor's
appointment that Monday, he had been working alone,
without managerial assistance, “for basically
three days” and he “was fed up” and
“done.” Havins Dep. at 11. Upon Ms.
Gorman's return to the dealership that afternoon,
Mr. Havins walked off the job, intending to quit,
without informing anyone that he was leaving.
long after Mr. Havins left the dealership, he contacted
Mr. Pope and laid out his complaints with Ms. Gorman.
Mr. Pope attempted to convince Mr. Havins to return to
the dealership to resolve the problems with Ms. Gorman.
When Mr. Pope received Mr. Havins's call, he (Pope)
was at a business lunch with Mr. Mendoza. Following Mr.
Pope's conversation with Mr. Havins, Mr. Pope and
Mr. Mendoza discussed, and ultimately decided, to
eliminate the parts department manager position
occupied by Ms. Gorman in order to have Mr. Pope assume
the duties of managing both the parts and the service
departments, and to retain Mr. Havins as a counter
employee in the parts department.
October 1, 2015, approximately three days after Mr.
Havins walked off the job due to his frustrations with
Ms. Gorman, Mr. Mendoza informed Ms. Gorman that her
employment was being terminated as a result of the
dealership's decision to restructure the parts
department and eliminate her position. Ms. Gorman
indicated to Mr. Mendoza that she was pregnant and
asked him whether that was the reason for her
termination. Mr. Mendoza denied that her pregnancy had
any relationship to the company's termination
is not clear from the record before us precisely when
and how Mr. Mendoza first learned of Ms. Gorman's
pregnancy. According to Ms. Gorman, she first learned
she was pregnant on September 29, 2015, two days before
she was terminated, and informed Mr. Mendoza of her
pregnancy on that same day. Ms. Gorman also told at
least two of her co-workers shortly before her
termination that she was pregnant. Mr. Mendoza
testified by deposition that he initially became aware
of Ms. Gorman's pregnancy by “hear[ing] from
other people. A lot of employees will talk
….” Mendoza Dep. at 14. When asked in his
deposition how long before Ms. Gorman's termination
he was made aware of her pregnancy, he answered,
“I don't know. I don't remember.”
Id. He does not deny having had knowledge of
Ms. Gorman's pregnancy before making the
termination decision, however.
Reinstitutes Parts Department Manager Position
a few weeks after Ms. Gorman's termination, Mr.
Pope performed the management duties for both the parts
and the service departments as he and Mr. Mendoza had
planned. Thereafter, Mr. Pope approached Mr. Mendoza to
indicate that he no longer wanted to perform managerial
duties for both departments and to suggest that the
parts department managerial duties be given to Mr.
November 2015, approximately one month after Mr.
Mendoza had terminated Ms. Gorman's employment, he
promoted Mr. Havins to the previously-eliminated
position of Parts Manager. According to Mr. Mendoza,
this decision was made because the dealership's
attempt to have Mr. Pope perform managerial duties for
both the parts and the service departments was not
working and because the company wanted to reward Mr.
Havins for his performance and positive interaction
with the service department. Mr. Havins's salary
was set at $1, 000 paid bi-weekly, plus a commission of
five percent (5%) on parts department sales and one
percent (1%) on service department sales.
to Mr. Mendoza, the quality of Mr. Havins's
performance exceeded Ms. Gorman's in the parts
department, as reflected by an increase in revenues
after Mr. Havins had become Parts Manager. Mr.
Havins's performance subsequently plateaued,
however, and, in July 2017, Andy Mohr hired another
person with more skill and experience to manage the
parts department; Mr. Havins was removed from the Parts
filing a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”)
and receiving her notice of right to sue from the EEOC,
Ms. Gorman filed her complaint in this court on
September 20, 2016, alleging, inter alia, that
she was terminated because of her sex and pregnancy, in
violation of Title VII. Defendant filed this motion for
summary judgment on September 20, 2017. That motion is
fully briefed and ripe for ruling.
Summary Judgment Standard
judgment is appropriate where there are no genuine
disputes of material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A court must grant a motion for summary
judgment if it appears that no reasonable trier of fact
could find in favor of the nonmovant on the basis of
the designated admissible evidence. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
We neither weigh the evidence nor evaluate the
credibility of witnesses, id. at 255, but view
the facts and the reasonable inferences flowing from
them in the light most favorable to the nonmovant.
McConnell v. McKillip, 573 F.Supp.2d 1090,
1097 (S.D. Ind. 2008).
Gorman alleges that Andy Mohr terminated her because of
her sex and pregnancy, in violation of Title VII, as
amended by the Pregnancy Discrimination Act. See
Young v. United Parcel Serv., Inc., 135 S.Ct.
1338, 1343 (2015) (“The Pregnancy Discrimination
Act makes clear that Title VII's prohibition
against sex discrimination applies to discrimination
based on pregnancy.”). An analysis of these
claims invokes the Seventh Circuit's decision in
Ortiz v. Werner Enterprises, Inc., 834 F.3d
760 (7th Cir. 2016), which states that regardless of
whether the court uses the burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) or some other framework to evaluate a
plaintiff's employment discrimination and
retaliation claims, “the ultimate legal question
‘is simply whether the evidence would permit a
reasonable factfinder to conclude that the
plaintiff's race, ethnicity, sex, religion, or
other proscribed factor caused the discharge or other
adverse employment action.” Reed v. Freedom
Mortg. Corp., 869 F.3d 543, 547 (7th Cir. 2017)
(quoting Ortiz, 834 F.3d at 765). Under this
“simplified” approach, the
“[e]vidence must be considered as a whole, rather
than asking whether any particular piece of evidence
proves the case by itself-or whether just the
‘direct' evidence does so, or the
‘indirect' evidence.” Ortiz,
834 F.3d at 765.
upon careful review of the record, we find that Ms.
Gorman has adduced sufficient circumstantial evidence,
when viewed as a whole, to create a triable issue as to
whether her termination of employment was motivated by
discriminatory intent by Defendant. The Seventh Circuit
has recognized three types of circumstantial evidence
on which a plaintiff may rely “to provide a basis
for drawing an inference of intentional
discrimination.” Troupe v. May Dep't
Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). Each
type of evidence may be “sufficient by itself
(depending of course on its strength in relation to
whatever other evidence is in the case) to support a
judgment for the plaintiff; or they can be used
together.” Id. Ms. Gorman relies on two
of the three forms of evidence here, to wit,
“suspicious timing” and “evidence
that [she] was qualified for the job in question but
passed over in favor of (or replaced by) a person not
having the forbidden characteristic and [her]
employer's stated reason for the difference in
treatment is unworthy of belief, a mere pretext for
Ms. Gorman has presented evidence of the very close
temporal proximity between Mr. Mendoza learning of her
pregnancy and her termination. See
Milligan-Grimstad v. Stanley, 877 F.3d 705, 711
(7th Cir. 2017) (“In some circumstances,
suspicious timing may reveal discriminatory
intent.”) (citation omitted). Although there is
some dispute regarding the manner in which Mr. Mendoza
became aware of Ms. Gorman's pregnancy, it is
undisputed that he knew she was pregnant at the time of
her termination and that he acquired that knowledge no
more than three days before he made the decision to
terminate her. While by no means ultimately
determinative, the timing of Ms. Gorman's
discharge, coming as it did on the heels of her
pregnancy news, is at least probative of the ultimate
question of whether her termination was the result of
discrimination. As the Seventh Circuit has recognized,
“even if suspicious timing alone is not
enough to create a triable issue in a particular case,
suspicious timing remains ‘an important
evidentiary ally of the plaintiff.'” See
Peele v. Burch, 722 F.3d 956, 960 (7th Cir. 2013)
(quoting Davis v. Time Warner Cable of Se. Wis.,
L.P., 651 F.3d 664, 675 (7th Cir. 2011)) (emphasis
in original). This is particularly true where, as here,
the time period between events is no more than a few
days, given that “[t]he closer two events are,
the more likely that the first caused the
second.” Loudermilk v. Best Pallet Co.,
LLC, 636 F.3d 312, 315 (7th Cir. 2011).
addition, Ms. Gorman has adduced evidence of pretext.
The shifting reasons given by Andy Mohr for Ms.
Gorman's termination raises suspicion of
discrimination. Defendant never told Ms. Gorman that
she was being terminated because she was unqualified
for the position or because of performance
deficiencies. Rather, she was told only that she was
being discharged because the company had decided to
restructure the parts department and eliminate her
position, to wit, the position of Parts Manager.
However, only a few weeks following her termination,
Defendant reinstated the Parts Manager
position and replaced Ms. Gorman with Mr.
Havins, who, as a man, is obviously incapable of
becoming pregnant. Although Defendant maintains that it
gave Mr. Havins the position because he was better
qualified than Ms. Gorman and also interacted with the
service department more professionally than she, there
is evidence in the record before us on which a
reasonable jury could rely that cuts against this
characterization of Mr. Havins's qualifications and
professionalism-namely, the fact that, shortly before
he was promoted, he walked off the job in the middle of
his shift without explanation and later had to be
convinced by Mr. Pope to return to work.
despite the fact that ...