464 F.3d 659 (7th Cir. 2006), 05-2837, Paz v. Wauconda Healthcare and Rehabilitation Centre, LLC

Docket Nº:05-2837.
Citation:464 F.3d 659
Party Name:Rosaura PAZ, Plaintiff-Appellant, v. WAUCONDA HEALTHCARE AND REHABILITATION CENTRE, LLC, Defendant-Appellee.
Case Date:September 19, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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464 F.3d 659 (7th Cir. 2006)

Rosaura PAZ, Plaintiff-Appellant,



No. 05-2837.

United States Court of Appeals, Seventh Circuit.

September 19, 2006

Argued February 24, 2006.

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[Copyrighted Material Omitted]

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John P. Madden, Margaret Megan O'Malley (argued), O'Malley & Madden, Chicago, IL, for Plaintiff-Appellant.

David B. Pogrund (argued), Stone, Pogrund & Korey, Chicago, IL, for Defendant-Appellee.

Gail S. Coleman (argued), Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae.

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 reconsideration. Because there are several issues of material fact in dispute, we conclude that summary judgment was inappropriate.

Our task in reviewing a summary judgment is to determine 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, we present the events leading up to this suit in the light most favorable to Paz, and note, where appropriate, 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 received 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."

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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 American people's job[s]." A co-worker had reported this comment 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.

The following day Li again approached Paz about her pregnancy. Li said to Paz, "Why don't you have an abortion?" 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 differently 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

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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 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 administrator.

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 present 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 concessions 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 Rzepka, an...

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