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Worker Who Sold Herself 15 Cent Candy Bars Lacks Title VII Bias Claims, Court Decides

Friday, December 21, 2012
Perez v. Thorntons Inc., N.D. Ill., No. 11-01787, 10/23/12

  • Key Holding: Hispanic female worker fails to show Title VII sex and national origin bias under direct and indirect methods of proof.

  • Key Takeaway: Lack of temporal proximity between alleged discriminatory comments of supervisor and discharge by separate decisionmaker will doom cat's paw bias theory.


By Jay-Anne B. Casuga

A Hispanic female convenience store manager in Illinois who was fired for selling herself 80 chocolate bars at a price of 15 cents each several days after Halloween lacks triable sex and national origin discrimination claims under Title VII of the 1964 Civil Rights Act, the U.S. District Court for the Northern District of Illinois ruled Oct. 23 (Perez v. Thorntons Inc., N.D. Ill., No. 1:11-01787, 10/23/12).

Granting summary judgment to Thorntons Inc., Judge Blanche M. Manning found that Norma Perez failed under a direct method of proof to show circumstantial evidence of bias through a male supervisor's comment about not liking to work with women.

That supervisor was not the decisionmaker who ultimately terminated Perez, and she further failed to demonstrate bias under a “cat's paw” theory because the purported sexist comment occurred more than one year before her discharge, the court said. It also rejected Perez's attempts to raise an inference of bias through statistical evidence.

Additionally, the court held that Perez cannot establish discrimination under an indirect method of proof because she cannot identify a more favorably treated similarly situated employee outside her protected class, and cannot establish pretext in the stated reason for her termination.


Self-Discount on Chocolate Lead to Firing
Perez began working for a Thorntons store in Cicero, Ill., in January 2005, and assumed a store manager position at a store in Summit, Ill., in November 2008.

Around the same time, she alleged that general manager Don Koziol, a white male, told her he did not like to work with women. She reported the comment to regional manager, Bill Darlington, who allegedly told her she could either accept her transfer to the Summit store or leave the company.

In November 2009, a few days after Halloween, Perez bought 25 Nestle crunch bars, 25 Baby Ruth bars, and 30 Butterfinger bars. The prices of the candy bars ranged between $1.50 and $1.59 each. However, Perez performed a manual price override at the cash register and reduced the prices to 15 cents each.

Upon learning about Perez's actions, Darlington questioned Perez, who claimed that Koziol had given her permission to make the purchases. Koziol disputed Perez's explanation, and Darlington ultimately decided to fire Perez for failing to “control cash/and or inventory” in violation of the company's write-off policy and November sales planner.

In March 2011, Perez sued Thorntons under Title VII for sex and national origin discrimination, and the company later moved for summary judgment.

To support her claims, Perez presented statistical evidence showing that Darlington had fired 251 women and 62 Hispanic employees between June 2004 and December 2009. Thorntons admitted that it had made 475 terminations in that region during that time frame.

Perez also claimed that Koziol had engaged in a similar “inventory/cash control” violation, but had not been fired for it. She said in August 2009, Koziol contended he had discovered a large quantity of alcohol missing from inventory. Instead of reporting the missing liquor, he allegedly paid full retail value for the alcohol with his personal credit card.

When Thorntons discovered what had happened, a regional manager--not Darlington--issued Koziol a written reprimand.


No Showing of Bias Under Direct Method
The district court granted summary judgment to Thorntons, finding that Perez failed to present sufficient circumstantial evidence of sex and national origin discrimination under a direct method of proof.

The court rejected Perez's contention that Koziol's alleged November 2008 statement about how he does not like to work with women evinces bias. Koziol, the court pointed out, was not the decisionmaker who terminated Perez.

She next relied on a “cat's paw” theory to argue that Darlington, who fired her in November 2009, had known about Koziol's purported sexist comment and later took Koziol's side in the candy bar dispute.

Unpersuaded, the court found that Perez's cat's paw theory fails because she cannot establish proximate cause between Koziol's statement and her termination one year later because the comment “was not made near the time of the adverse employment decision.”

In addition, Darlington was “entitled to believe Koziol over Perez, and his decision to do so was not automatically discriminatory even if it was wrong,” the court said.

“Even if Darlington knew about Koziol's bias, Perez still has presented no evidence that Darlington's decision to terminate Perez was motivated by that bias rather than her violation of the Sales Planner and the Write-Off Policy,” it said. “Instead, Perez relies on sheer speculation, which is insufficient to defeat a motion for summary judgment.”

The district court also dismissed Perez's attempt to establish disparate treatment bias through statistical evidence allegedly showing that Darlington fired more women and Hispanics between 2004 and 2009. It said Perez failed to provide numerics with respect to the ratio of male to female employees overall, or the percentage of Hispanic employees overall.

Without such data, the court said, “it is impossible to determine whether women and Hispanics are over-represented among terminated employees.”

Moreover, Perez “failed to account for nondiscriminatory reasons for her statistical evidence,” it said.


Worker Also Fails to Show Bias Under Indirect Method
Perez's discrimination claims also fail under an indirect method of proof, the court ruled.

First, Perez failed to establish a prima facie case of discrimination because she did not identify a similarly situated male or non-Hispanic employee who committed similar misconduct, but received more lenient treatment.

The court disagreed with Perez that Koziol was such a similarly situated employee because their violations were not similar. Unlike Koziol, who paid in full for the missing liquor merchandise and did not financially affect Thorntons, Perez's cash overrides resulted in a loss of about $115 to the company, the court said.

Additionally, different decisionmakers disciplined Perez and Koziol, it said.

Even if Perez had demonstrated a prima facie case, Thorntons still would be entitled to summary judgment because she failed to establish pretext in the company's legitimate, nondiscriminatory reason for firing her, the court held.

“Perez contends that she has established pretext with evidence that Koziol gave her permission to sell the candy bars for 15

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