Disclaimer:
The case on which this summary is based may no longer be current law.
Also, if the case was decided on summary judgment, the court recited the
"facts" in the light most favorable to the non-movant, which may not be
the true facts.
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Employee does not have to establish that she was meeting employer's
legitimate expectations where that issue is intertwined with the issue of pretext.
Curry v. Menard, Inc., 270 F.3d 473 (7th Cir. October 29, 2001) -
Sylvia Curry sued Menard under Title VII and 42 U.S.C. Section 1981 alleging wrongful
termination. The district court granted summary judgment in favor of Menard. The Seventh
Circuit reverses and remands. Curry, who is black, worked as a cashier. She was terminated
in March of 1998 because of her third cash drawer discrepancy. Under the company's
unwritten "progressive discipline" policy, a cashier would receive a written
warning if her cash register count was out of balance by $3.00 or more. If this happened
again within 30 days, the cashier would be suspended. If a third discrepancy occurred
within 60 days of the suspension, the employee would be terminated. Curry does not dispute
that she violated the policy on three occasions, but she alleges that she was terminated
based upon the racial animus of her supervisor. She also alleges that other cashiers who
violated the policy were treated more favorably. From January 1, 1997 to December 31,
1998, Curry was the only cashier to be suspended or terminated for violating the policy.
However, if the policy had been enforced, sixteen other cashiers would have been suspended
or terminated. Menard argues that Curry's termination was the result of the decision of a
new store manager, Michael Stanley, to strictly enforce the policy. But even if one only
looks at the period of a few months in which Stanley was store manager, at least two
non-black cashiers violated the policy and were not disciplined. Menard argues that
because Curry admits she violated the policy, she cannot establish the second prong of her
prima facie case -- that she performed her job according to Menard's legitimate
expectations. But the Court does not require Curry to establish this prong where the
reason she was allegedly not meeting expectations is more appropriately considered on the
issue of pretext. Therefore, based upon the fact that there is evidence of unequal
treatment during Stanley's short tenure, the Court reverses the grant of summary judgment
in favor of Menard. Click
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actual case.