MEMORANDUM OPINION AND ORDER
This dispute centers on allegations that defendant Blue Cross Blue Shield subjected plaintiff Mary Hubbard to various forms of employment discrimination during her tenure, ultimately terminating her while she was on medical leave. Specifically, Hubbard claims in her amended complaint that Blue Cross violated the Family Medical Leave Act (“FMLA”)29 U.S.C.A. 2601 et seq., 28 U.S.C. § 2617 and 28 U.S.C. § 1331, by firing her while she was on leave (Count I); and violat *870 ed Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by failing to promote her because she is female (Count III) and by retaliating against her for complaining that sex played a role in her non-promotion (Count IV). 1 Before this Court is Blue Cross’ Motion for Summary Judgment on all counts.
RELEVANT FACTS
The following facts are drawn from the parties’ Local General Rule 12 statements of fact. 2 In March 1987, Hubbard began working for Blue Cross as a secretary. She advanced through a series of promotions to the level of Billing Manager in Blue Cross’ Operations Service Center (“OSC”). Def.’s Facts ¶¶ 5-6. She worked in this position, apparently without incident, from November 1994 until early June 1995, when OSC was reorganized by the department manager, Michael Lacivita. Def.’s Facts ¶ 9. Lacivita rewrote the job descriptions for two of the four Billing Manager employees, promoting them to Billing Manager II — a supervisory position. 3 Id. ¶ 11; Def.’s Resp. Add’l Facts ¶ 8. Those promoted, Anthony Fortier and Kenneth Thompson, were male. Def.’s Facts ¶ 11. Two females, Hubbard and Ju-Ton Loving, remained in Billing Manager positions and subsequently lost their offices. PL’s Facts ¶ 9; Hubbard Aff. ¶¶ 2, 5. Under the OSC reorganization, Hubbard reported to her former peer, Fortier, an employee with whom she had been having some personal differences. Def.’s Facts ¶ 18; PL’s Add’l Facts ¶ 20.
Shortly after the reorganization, Lacivita gave Hubbard a positive one-year performance review. PI.’s Add’l Facts ¶21. Signed on June 21, 1995, 4 the review awarded Hubbard a “CME” rating — meaning that she “consistently meets and at times exceeds expectations.” 5 PI.’s Facts Ex. 6, at 6. A generally glowing review, it marked only two areas for Hubbard’s improvement: the need to “be even more aggressive in getting her ideas expressed” and to follow up “with the many open items a billing manager has to deal with” — although Lacivita admitted that the main reason for the open items was “Mary’s own initiatives in resolving billing issues that she has surfaced,” and later conceded that Hubbard “in fact closes out most *871 items very quickly.” Id. at 2, 5. Otherwise, Hubbard was “masterful at handling our customers ... in difficult situations,” possessed “top-notch” customer service skills, and was “driven to provide client satisfaction. She represents HMO-USA in a positive, professional manner.” Id. at 2-3. Although the evaluation did not specifically address Hubbard’s attitude toward or relationships with superiors, Lacivita did note as “particular strengths” that Hubbard “[interacts courteously and professionally with peers, subordinates, and other employees” and that she “[c]reates a positive corporate image in dealing with co-workers ....” Id. at 3-4.
Notwithstanding her positive review, Hubbard was dissatisfied with her working conditions after the reorganization. She lodged two complaints — one to Beth Williams in the Human Resources Department and one to Lacivita. PL’s Add’l Facts ¶¶ 9-10. Hubbard complained to Williams about the fact that two males had been promoted to Billing Manager II. PL’s Add’l Facts ¶ 10. To Laci-vita, Hubbard indicated that “sex played a role” in her non-promotion; she testified that she indicated this by asking him “why the women los[t] their office[s] and the men didn’t.” Hubbard Dep. at 578. Hubbard did not, however, specifically tell Lacivita that she believed she did not get the promotion to Billing Manager II because she is female. Id.
On July 12, 1995, approximately one week after Hubbard complained to Williams and Lacivita, 6 Hubbard received a Documented Verbal Warning (“DVW”), which is a step toward termination. Def.’s Facts ¶ 20; PL’s Add’l Facts ¶ 12. Fortier issued the DVW at Laeivita’s direction. Fortier Dep. at 116; Lacivita Dep. at 25, 42. In the month since Fortier had begun supervising Hubbard, he noticed certain behaviors on her part that he felt justified the DVW. First, he testified that Hubbard did not pay attention to detail. Fortier Dep. at 105. Second, he testified that Hubbard “had a history of arriving late and leaving early,” although he could neither point to a specific occasion nor estimate how often she trimmed work hours. Id. at 106-08. Fortier’s final justification for the DVW was Hubbard’s insubordination. He testified that Hubbard refused to provide him on one occasion with information about her accounts, remarking to Fortier that it was “not a good day,” and she was “not in the mood” to discuss them. Id. at 109-10. Fortier conveyed Hubbard’s performance expectations following the DVW in a memo dated July 12. See Def.’s Facts Ex. 7. Before Fortier issued the DVW, he learned from Lacivita that Hubbard had complained about her non-promotion to both Lacivita and Williams — although it is unclear from the record whether he knew the basis for Hubbard’s objection to her non-promotion. Id. at 115-16; PL’s Add’l Facts ¶ 12.
Lacivita testified that he and Fortier had met with Beth Williams in early July to “explore our options” in disciplining Hubbard. Lacivita Dep. at 25. Personally, Laci-vita wanted Hubbard fired. Lacivita Dep. at 25-26. He testified that a single incident of insubordination — an incident he never witnessed, but only heard about from Fortier— prompted the DVW and, he felt, justified her termination. Id. at 26; PL’s Add’l Facts ¶ 18. According to Lacivita, Hubbard “created a scene at her cubical when given an assignment”; he explained that “[s]he refused to accept the assignment and she spoke in tones that were clearly disrespectful to her supervisor.” Lacivita Dep. at 26-27. Lacivi-ta instructed Fortier to issue the DVW without any further investigation.
Lacivita admitted that Fortier’s report was inconsistent with his four-month experience supervising Hubbard and with her entire personnel history. Lacivita Dep. at 40. Hubbard’s personnel file revealed no previous incidents of insubordination. Id. at 28. Lacivita acknowledged that Hubbard had never been insubordinate toward him either, and was cordial when he approached her with suggestions for improvement. PL’s Add’l Facts ¶ 15.
What followed was a deterioration in Hubbard’s employment situation. Between July and September, Hubbard admits that she filled out time sheets indicating her attendance on four days that she was actually ab *872 sent, and that she frequently turned in her time sheets late. Def.’s Facts ¶¶ 24-26. La-civita received reports from several sources that Hubbard was missing deadlines and refusing assignments. Lacivita Dep. at 48. She often arrived at work late and left early. Prior to the OSC reorganization, however, Hubbard was given informal permission to keep flexible hours because she was taking classes outside of work. Blue Cross admits that Lacivita instructed Fortier to monitor and log Hubbard’s arrival, and that no such log was kept on any other employee, even though several were regularly late for work. Pl.’s Add’l Facts ¶¶ 26-33.
On September 25, 1995, Hubbard was placed on a Corrective Action Program (“CAP”). Def.’s Facts ¶ 27. The CAP was a probationary program that was to last 90 days. It required Hubbard to meet several performance goals, including arriving at work on time, reducing unreported absenteeism, completing time sheets correctly, ceasing insubordinate and hostile responses to work assignments, and providing Fortier with face-to-face bi-weekly status reports. The CAP stated that Hubbard’s failure to meet any one of these performance objectives would result in her termination. Def.’s Facts Ex. 9. Hubbard denies that she ever responded in a hostile or insubordinate manner to receiving work assignments. Pl.’s Resp. ¶ 28.
While on the CAP, Hubbard continued to make errors on her time sheets and to turn them in late. Def.’s Facts ¶ 32. Fortier reported these incidents on Hubbard’s first bi-weekly review, dated October 6, 1997. In addition, on both this and a subsequent review dated October 20th, Fortier reported that Hubbard continued to exhibit hostility and to resist work assignments. Id. ¶33. The October 20th review also faulted Hubbard for tardiness on one occasion. Id. ¶ 34. Hubbard refused to sign these reviews; however, she did not specifically contest them in writing or contact anyone to register her disagreement. Def.’s Facts ¶ 36.
Lacivita testified that on Friday, October 20, 1995, he met with Fortier and two Human Resources employees, Kari Kronborg and Tenia Glass, to discuss Hubbard’s employment situation. Lacivita Dep. at 70. At that time, he claims, the four of them decided to terminate Hubbard effective Monday, October 23, 1995. Id. at 70-71. But Hubbard did not return to work on or after October 23. Def.’s Facts ¶41. She filed for short-term disability for depression, and began leave under the Family and Medical Leave Act (“FMLA”) on November 11, 1995. Id. ¶ 42.
According to Hubbard, the decision to terminate her was made not on October 20, but rather while she was on medical leave. Pl.’s Resp. ¶¶ 39-40. She draws this conclusion from various pieces of evidence. First, Hubbard points out that Fortier sent her an email message on October 23 requesting her time sheet. Pl.’s Add’l Facts ¶ 45. Second, Hubbard cites Fortier’s testimony that he, Lacivita and human resources personnel discussed among themselves whether Hubbard would be returning and whether they could take disciplinary action against her while she was on medical leave. Fortier Dep. at 182. Third, Hubbard attaches to her summary judgment materials a letter that Tenia Glass wrote, but never signed, directing Hubbard to return to work on January 2, 1996. 7 Pl.’s Add’l Facts ¶ 48. Lacivita testified, however, that Hubbard would have been terminated if she had come back to work on October 23. Lacivita Dep. at 71-72.
Nevertheless, Hubbard states that she had no idea that her termination was contemplated until December 29, 1995, when she received a letter from Beth Williams informing her that failing the CAP goals prevented Hubbard from returning to her previous position and department. Pl.’s Add’l Facts ¶ 47. Williams’ letter presented two options: a 30-day job transition program, without pay, after which Hubbard could interview for other positions at Blue Cross, or immediate termination. Def.’s Facts Ex. 11. The cho *873 sen option was to take effect on January 2, 1996, upon Hubbard’s return from leave. PL’s Ex. 11. Hubbard entered the transition program on that date, but did not seek another position within the company. She was ultimately terminated on February 16, 1996. Def.’s Facts ¶ 46.
On January 4,1996, Hubbard filed charges with the Equal Employment Opportunity Commission and the Illinois Department of Human Rights. After receiving a notice of right to sue, she filed this action on February 6,1997.
Hubbard alleges that (1) her termination while on medical leave violated the FMLA; (2) her non-promotion and loss of office were the result of sex discrimination; and (3) the DVW, the CAP, and her termination were retaliation for complaining that sex played a role in how Lacivita implemented the OSC reorganization. Blue Cross moves for summary judgment on all these claims, contending that (1) Hubbard cannot establish a FMLA violation because poor performance prevented her from returning to the Billing Manager position after her medical leave; and (2) Hubbard fails the prima facie case for both sex discrimination and retaliation under Title VII, and has no evidence impugning Blue Cross’ nondiscriminatory reasons for issuing the DVW, placing Hubbard on the CAP, or terminating her.
Evaluating these arguments under the standards for summary judgment, we conclude that Hubbard cannot prevail on her FMLA claim as a matter of law; however, she has raised genuine issues of material fact that require trial on her sex discrimination and retaliation claims. Blue Cross’ motion for summary judgment is therefore granted in part and denied in part.
LEGAL STANDARDS
Summary judgment is proper only when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc.,
In ascertaining whether a genuine issue of material fact exists, the court must “view the evidence presented through the prism of the substantive evidentiary burden.”
Liberty Lobby, 477
U.S. at 254. If the “record taken as a whole could not lead the trier of fact to find for the non-moving party, there is no genuine issue of material fact for trial.”
See Matsushita Elec. Indust. Co. v. Zenith Radio Corp.,
ANALYSIS
I. Count I — The FMLA Claim
In general terms, the FMLA permits eligible employees to take up to twelve weeks of unpaid leave during any twelve-month period for family or medical reasons, including depression. See 29 U.S.C. § 2612. Once the employee returns from leave, the employer must restore the employee “to the position of employment held by the employee when the leave commenced” or to an equivalent posi *874 tion. Id. § 2614(a)(1)(A), (B). The employer is not required, however, to provide the employee “any right, benefit, or position of employment other than the right, benefit, or position to which the employee would have been entitled had the employee never taken leave.” Id. § 2614(a)(3)(B). In other words,
[a]n employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.
29 C.F.R. § 825.216(a).
The FMLA also contains an “antidiscrimi-nation component.”
Diaz v. Fort Wayne Foundry Corp.,
Because the FMLA has been in effect, only five years, legal analysis under the statute is not well established. Various district courts, perceiving the FMLA as a tool to prevent discriminatory employment actions based on an employee’s leave status, have evaluated FMLA claims under the familiar burden-shifting approach developed for Title VII cases in
McDonnell Douglas Corp. v. Green,
In
Diaz,
the court held that an employee’s failure to appear for a second-opinion medical examination at the employer’s behest was grounds for ending the employee’s FMLA leave and terminating him when he failed to return to work.
The court began by pointing out that Diaz’s FMLA claim was not based on the Act’s antidiscrimination provisions; rather, *875 he alleged deprivation of his substantive FMLA rights — the right to take leave in the first place, not the ability to take it without repercussion. See id. at 713. In general, the court explained, “claims under the FMLA do not depend on discrimination:”
The question in a discrimination case is whether the employer treated one employee worse than another on account of something (race, religion, sex, age, etc.) that a statute makes irrelevant.... A statute such as the FMLA, however, creates substantive rights.... The question is not how the [employer] treats others, but whether it respected each employee’s entitlements.
Id. at 712-13. As such, the court rejected the McDonnell Douglas burden-shifting approach — specifically, its use of comparative evidence and pretext analysis — for substantive FMLA claims. Id. Instead, the court endorsed a direct approach, which questions whether “the plaintiff has established, by a preponderance of the evidence, that he is entitled to the benefit he claims.” Id. at 713. Because Diaz did not cooperate with the FMLA’s second-opinion process, he lost any entitlement to leave. Id.
Significantly, the
Diaz
court acknowledged that the FMLA does contain an antidiserimi-nation/antiretaliation provision in section 2615(a)(2), although Diaz did not invoke it.
Id.
The court “reserved judgment on th[e] possibility” of analyzing claims under this section using a “derivative burden-shifting approach.”
Id.
As an example, the court cited the Third Circuit’s section 2615(a) analysis in
Morgan v. Hilti, Inc.,
Given the Diaz court’s equivocal stance on Morgan, however, we first evaluate Hubbard’s FMLA claim using a direct approach, asking whether Hubbard’s evidence would permit a reasonable jury to find that she is entitled to a benefit under the FMLA. The “benefit” she claims to have been denied is the right to have her Billing Manger position restored upon returning from leave. Viewing the facts in the light most favorable to Hubbard, we conclude that a reasonable jury could not find that Hubbard was entitled to her former position.
In order to survive summary judgment, Hubbard needs to produce evidence from which a reasonable jury could find that she was entitled to her former or an equivalent position upon her return from FMLA leave.
See Anderson v. Liberty Lobby, Inc.,
The parties agree that Hubbard’s performance deteriorated after she received the DVW on July 12, 1995. From July through September, Hubbard turned in a number of late and inaccurate time sheets, and was sometimes tardy and absent. In September, Hubbard was placed on the CAP, which provided that failure to meet any one of its performance goals — including arriving at work on time, completing time sheets correctly, and ceasing insubordinate and hostile behavior — would lead to termination. While *876 on the CAP, it is uncontested that Hubbard continued to have problems with late and inaccurate time sheets, and that she was not at her desk when scheduled to start work on at least one occasion. Hubbard’s October 3 and 20, 1995 CAP reviews announced that she had not met these CAP performance goals. 12 She refused to sign the reviews, not because she denied the time sheet errors or claimed she was at her desk at the appointed time every day, but because she had excuses for this behavior and felt that being penalized for it was unfair. Pl.’s Resp. ¶¶ 32, 34.
Once Blue Cross presented evidence that Hubbard would have been fired for failure to meet the CAP goals even if she had not taken leave, it was incumbent upon Hubbard to produce specific facts from which a jury might reasonably infer otherwise.
See Jenkins v. Heintz,
Second, Hubbard argues that she has direct evidence that her termination was not performance-based, but instead was motivated by the fact that she took medical leave. She points to Fortier’s October 23 e-mail requesting her time sheets, three days after Lacivita and Fortier claim they decided to fire her, as well as the unsigned letter from Tenia Glass directing Hubbard to return to work on January 2, 1996. Hubbard also relies on the discussions among Fortier, La-eivita and human resources personnel about when Hubbard would be returning from leave and whether they could take disciplinary action against her in the meantime. From all this evidence, Hubbard deduces that the decision to terminate her was not made until after her leave began, and further, that it was based on her decision to take leave.
This is flawed logic. While the e-mail, letter, and discussions east doubt on the finality of Blue Cross’ October 20 “decision” to terminate Hubbard, this evidence does not demonstrate that poor work performance was a facade, that poor performance was not the actual reason for her termination, or that Hubbard’s decision to take leave motivated Blue Cross. At most, this evidence demonstrates Blue Cross’ concern for work Hubbard left undone, its desire to tie up administrative loose ends, and its legitimate concern for ensuring the legality of disciplining Hubbard while on leave.
See McCown,
*877 Finally, Hubbard argues that Blue Cross was not entitled to terminate her for failing the CAP goals because the CAP requires 30-days’ notice before termination. According to Hubbard, Blue Cross’ failure to notify Hubbard about her termination in advance shows that poor performance did not motivate her discharge. But the CAP guidelines submitted by both parties reveal no prior notice requirement. Nor does any other evidence in the record specify how long Blue Cross must wait to fire an employee who fails to meet CAP goals. Consequently, this evidence does not call into question the fact that Hubbard would have been fired even if she had not taken leave.
A direct
Diaz
analysis of Hubbard’s claim unearths no genuine issue of material fact enabling a jury to find that Blue Cross violated Hubbard’s FMLA rights. Nor does Hubbard fare any better under the “derivative” burden-shifting approach mentioned, but not explicitly endorsed, in
Diaz.
That approach still requires Hubbard to attack the legitimacy of Blue Cross’ reasons for discharge — by demonstrating that they are a pretext for discrimination based on leave status.
See Morgan v. Hilti, Inc.,
Pretext can be established by showing (1) that discriminatory intent more likely than not motivated the employer; or (2) that “the employer’s proffered explanation is unworthy of credence” because the defendant’s explanation had no basis in fact, was not the real reason for the adverse action, or was insufficient justify any adverse action.
See Collier v. Budd Co.,
We have already found that Hubbard did not specifically refute the facts supporting Blue Cross’ claim of deficient performance. Hubbard admits to having failed in the very areas that the CAP clearly explained would be grounds for termination. Nor has she presented evidence that would call the veracity of Blue Cross’ reasons into question or demonstrate that they were insufficient to warrant termination. As we explained above, the events after Hubbard took leave do not call the justifications for her termination into doubt. Furthermore, the CAP made it sufficiently clear that failure to meet any one of its objectives would lead to termination, and Hubbard knew, based on her October 1995 reviews, that For-tier did not consider her to be in compliance with the CAP. While Hubbard certainly disagreed with his perceptions, she has not shown that Fortier did not believe them. It is the employer’s perception that is determinative of pretext.
See Karazanos v. Navistar Int’l Transp. Corp.,
In sum, Hubbard has not produced evidence from which a reasonable jury could find either (1) that she was entitled to her former or a similar position upon return from leave, or (2) that Blue Cross discharged her because she exercised her FMLA rights. Because the evidence does not permit a finding that Blue Cross violated the FMLA, we grant Blue Cross summary judgment on Count I.
II. Count III — The Sex Discrimination Claim
Aside from her termination, Hubbard takes issue with the legality of Lacivita’s reorganization decisions in June 1995 — specifically, his de facto promoting two male Billing Managers (Fortier and Thompson) to Billing Manager II, while denying Hubbard and another female Billing Manger the same opportunity. She claims that these actions were motivated by sex discrimination in vio *878 lation of Title VII of the Civil Rights Act of 1964.
Title VII prohibits employers
from
discriminating against their employees on the basis of,
inter alia,
sex. 42 U.S.C. § 2000e
et seq.
As in any discrimination ease, Hubbard bears the ultimate burden of proving by a preponderance of the evidence that her employment was adversely affected by her gender. She can meet this burden by presenting either direct evidence (e.g., sexist remarks) or circumstantial evidence of discriminatory intent.
See Troupe v. May Dep’t Stores Co.,
If Hubbard succeeds in making a prima facie showing of discrimination, a rebuttable presumption of discrimination arises and the burden of production shifts to Blue Cross to articulate a legitimate, non-discriminatory reason for Lacivita’s decisions.
See Texas Dep’t of Comm. Affairs v. Burdine,
Hubbard meets the prima facie case elements under McDonnell Douglas. First, she is female. Second, all indications in the record are that Hubbard was meeting Blue Cross’ legitimate expectations at the time Lacivita reorganized the OSC and promoted her male peers. The performance review Lacivita gave Hubbard just after the reorganization states that she consistently meets and at times exceeds expectations. It is peppered with positive comments about Hubbard’s initiative in resolving billing issues, her success at handling accounts, her “topnotch” customer service skills, professionalism, and ability to interact well with peers, subordinates, and other employees. Lacivi-ta’s mild comments about Hubbard’s need to close out accounts faster were tempered by his observations that any delay was the result of Hubbard’s adeptness at spotting billing issues and that she closed out most accounts promptly.
Third, Hubbard suffered adverse action— she was not permitted to upgrade her position by rewriting it, while her male peers were. “Depriving someone of the building blocks for such a promotion ... is just as serious as depriving her of the job itself.”
Bryson v. Chicago State Univ.,
Fourth, Hubbard has presented evidence from which it can be inferred that the adverse actions sprang from a “legally forbidden ground” — in the form of the more favorable treatment afforded her similarly situated male employees. Fortier, Thompson, Hubbard, and Ju-Ton Loving (the other female) all occupied the same Billing Manager position before the OSC reorganization, but only the two males’ positions were upgraded to Billing Manager II, and only the females subsequently lost their offices. Blue Cross does not contest the fact that the males were similarly situated to Hubbard. Instead, it responds to Hubbard’s evidence by pointing out that another female in the OSC, Cheryl Prater, was promoted at the same time as Fortier and Thompson. But Prater does not provide an appropriate comparison because she was promoted neither from the same position as Hubbard, nor to the same position as Hubbard’s male counterparts.
See
Def.’s Facts ¶ 11; PL’s Add’l Facts ¶ 8. Moreover, the Seventh Circuit has made clear that an employee’s discrimination claim does not fail simply because the employer treats another employee with the plaintiffs protected characteristic favorably.
See Carson v. Bethlehem Steel Corp.,
The Supreme Court explained the defendant’s burden of production in detail in
Texas Dep’t of Community Affairs v. Burdine,
The burden that shifts to the defendant ... is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons.... [But] the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs rejection. The explanation must be legally sufficient to justify a judgment for the defendant.
Blue Cross offers one justification in support of Lacivita’s decision to permit Fortier and Thompson, but not Hubbard, to upgrade their positions: paragraph four of Lacivita’s affidavit, which asserts, “I selected Anthony Fortier and Ken Thompson for the two supervisory positions because they met the criteria I was looking for.” We have serious questions whether this constitutes evidence that would justify a judgment in Blue Cross’ favor. Blue Cross offers no explanation, anywhere in the record, as to what these criteria are. By failing even to identify the relevant standards that Fortier and Thompson supposedly met, Blue Cross leaves the fact finder with nothing but indeterminate “criteria” to explain the difference in treatment between the male and female Billing Managers. A jury may well wonder if Lacivi-ta’s private “criteria” were not overtly based on gender.
But even assuming that Lacivita’s statement satisfies Blue Cross’ burden of producing a legitimate, nondiscriminatory explanation to rebut the inference of discrimination raised by Hubbard’s prima facie case, Blue Cross is still is not entitled to summary judgment because Hubbard has raised a fact issue as to whether this explanation is pre-textual. Hubbard may demonstrate that Blue Cross’ proffered explanation is a pretext for sex discrimination by showing that it had no basis in fact, that the reason did not motivate the decision, or was insufficient to motivate the action.
See Collier v. Budd Co.,
As explained above, the record contains no evidence of what these criteria are or how Fortier and Thompson met them. Indeed, the record is silent on Fortier and Thompson’s job performance and qualifications at the time they were promoted. There is no evidence that Fortier and Thompson were
*880
more senior than Hubbard. We do know, however, that Fortier had absolutely no supervisory experience, at Blue Cross or anywhere else. PL’s Add’l Facts ¶ 24. Fortier also admitted to having problems with five to ten of his seventeen accounts during his tenure at Blue Cross, and with getting premiums out in a timely fashion — both of which prompted complaints. Pl.’s Add’l Facts ¶¶ 41-42. In contrast, Hubbard offers her positive performance review dated shortly after her non-promotion, which praises numerous aspects of Hubbard’s job performance. Instead of explaining how Fortier and Thompson met Lacivita’s criteria for a supervisory position, or how Hubbard did not, Blue Cross stands on the mere concluso-ry assertions in Lacivita’s affidavit, which are generally insufficient to create — much less avoid — a genuine issue of material fact,
cf. Jones v. Merchants Nat’l Bank & Trust Co.,
Although Hubbard has sufficiently called into question the genuineness of Blue Cross’ reason for promoting only the male Billing Managers, she still carries the ultimate burden of persuading the fact-finder that Blue Cross intentionally discriminated against her on the basis of sex.
See St. Mary’s Honor Center v. Hicks,
III. Count IV — The Retaliation Claim
Hubbard’s Title VII retaliation claim likewise merits a trial. She claims that the DVW, the CAP and her termination were all retaliation for complaining that sex played a role in Lacivita’s failure to upgrade her position. We find that the evidence before us raises a fact issue as to whether the DVW (but not the CAP or Hubbard’s discharge) constitutes illegal retaliation.
The retaliation provision in Title VII provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [she] has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As with other Title VII claims, a retaliation claim may be proved circumstantially under the familiar
McDonnell Douglas
burden-shifting analysis.
13
Samuelson v. Durkee/French/Airwick,
Blue Cross claims that Hubbard cannot establish a prima facie case of retaliation because (1) her complaints to Laeivita and Williams were not statutorily protected expression, and (2) even if her complaints were protected expression, there is no causal connection between the complaints and any adverse employment action. Blue Cross does not contest, however, that the DVW, the CAP, or Hubbard’s termination constitute adverse employment actions.
We begin with the first disputed element, protected expression. Hubbard points to two complaints she made about her non-promotion as instances of protected expression. First, she complained to human re *881 sources employee Beth Williams about the fact that two males were promoted to Billing Manager II positions. Her second complaint was to Lacivita. According to Hubbard, she indicated that she believed “sex played a role” in the promotions of the two males by questioning Lacivita “why the women los[t] their offiee[s] and the men didn’t.” The complaints were made in the first week of July 1995, approximately one week before Hubbard received the DVW on July 12. Blue Cross argues that neither complaint is statutorily protected because Hubbard did not specifically state that she did not get the promotion because she is female. We disagree with Blue Cross’ overly technical interpretation.
Statutorily protected expression includes not only formal charges of discrimination, such as formal complaints filed with the EEOC, but also informal grievances to supervisors.
Laird v. Cragin Federal Bank,
Viewing the facts in the light most favorable to Hubbard, we find Hubbard’s complaints to Lacivita and Williams showed that Hubbard reasonably believed she was challenging conduct that violates Title VII. Complaining to Williams that two males received promotions is a sufficiently objective sign that Hubbard was protesting unequal treatment based on gender. In addition, asking Lacivita “why the women los[t] their office[s] and the men didn’t” clearly indicates that Hubbard believed she was complaining about unfair treatment because of her sex. We reject Blue Cross’ rigid requirement that employees use specific language for protected expression — an overly cumbersome burden that has no basis in law. Consequently, Hubbard satisfies the first element of a retaliation claim.
The other element the parties contest is the third, which requires Hubbard to show a causal connection between this protected activity and an adverse action — either the DVW, the CAP, or her discharge. To establish this causal link, an employee must demonstrate that the employer would not have taken the adverse action “but for” the protected expression.
Johnson v. University of Wisconsin-Eau Claire,
Hubbard made her initial complaint to La-civita on July 4, 1995, and received the DVW on July 12, 1995. She also complained to Williams the week before receiving the DVW. In short, the DVW was issued on the heels of Hubbard’s protected expression. We find that a period of approximately one week between the complaints and the DVW is certainly a “telling temporal sequence,”
see Holland,
Hubbard has also forged a causal link between at least one person to whom she complained and who was responsible for the DVW. Lacivita, the first recipient of Hubbard’s protected expression, admits that he directed Fortier to issue the DVW; indeed, he testified that he wanted Hubbard fired at the time. It is not clear from the record whether Fortier knew when he issued the DVW that Hubbard’s two complaints were about unequal gender treatment, although it is undisputed that he knew she had complained about her non-promotion. Nevertheless, whether Fortier had actual knowledge of the substance of Hubbard’s complaints is inconsequential given Laeivita’s admission that he instructed Fortier to issue the DVW.
In contrast, Hubbard fails to demonstrate a causal link between her informal complaints and the CAP or her discharge. The complaints preceded the CAP’S institution by almost three months, and Hubbard’s termination by nearly six. These adverse actions did not, therefore, occur on the heels of Hubbard’s protected expression. More important, the intervening circumstance of Hubbard’s deteriorating performance broke the chain of causation between these actions and her protected expression. The uncontested evidence of Hubbard’s time sheet errors, tardiness, and absences leading up to the CAP and discharge belies any finding of “but-for” causation.
Having found that Hubbard has established a prima facie ease of retaliation, we must determine whether Blue Cross can proffer a legitimate reason for the DVW and, if so, whether Hubbard can show that the reason is a pretext for retaliatory action. Fortier claims that the DVW was prompted by (1) Hubbard’s insubordinate refusal to give him information on her accounts; (2) her inattention to detail; and (3) her tendency to trim work hours. Lacivita sets forth a slightly different reason for the DVW—a single incident of insubordination. He testified that Hubbard once “created a scene at her cubical when given an assignment” and “refused to accept the assignment and she spoke in tones that were clearly disrespectful to her supervisor.” To meet its burden of production, Blue Cross need only offer reasons that are supported by admissible evidence and are sufficient to warrant a judgment in its favor.
See Burdine,
Hubbard argues that insubordination, inattention to detail, and work hours are not what motivated the DVW; instead, she claims that Lacivita directed Fortier to issue the DVW because Hubbard complained that sex played a role in her non-promotion. In order to rebut these articulated reasons, Hubbard must show that they have no basis in fact, did not motivate the DVW, or were insufficient to warrant the DVW.
See Collier v. Budd Co.,
*883 We find Hubbard goes far beyond general assertions of adequate job performance, offering evidence that questions whether For-tier and Lacivita truly believed then stated reasons for issuing the DVW. Just days before Lacivita said he wanted Hubbard fired but decided to issue the DVW instead, he had signed a glowing performance review of Hubbard — a review that specifically praises Hubbard’s courteous and professional interaction with peers, subordinates, and other employees, as well as her ability to create a positive corporate image in dealing with coworkers. Lacivita did not witness Hubbard’s alleged insubordination, admitted that she had never been insubordinate toward him, and acknowledged that this incident was inconsistent with Hubbard’s entire employment history. Despite this glaring inconsistency with Hubbard’s past conduct and having no personal knowledge of her insubordination, Lacivita did not see fit to investigate the incident, which surely would have been witnessed by others if Hubbard had “created a scene.” It is very telling that Lacivita’s sudden change in attitude toward Hubbard came right after she complained to him about the female Billing Managers losing their offices.
Moreover, Laeivita’s account differs from Fortier’s, which also suffers from credibility problems. Fortier claims that Hubbard was insubordinate because she refused to give him information about her accounts. Again, this is inconsistent with Hubbard’s contemporaneous performance review, Lacivita’s observations, and Hubbard’s employment record — and is uncorroborated as well. The fact that Hubbard arrived at work late and left early on occasion also lacks credence as a reason for the DVW because Lacivita had previously granted her permission to alter her work hours to attend classes. Finally, Fortier’s assertion that Hubbard lacked attention to detail directly contradicts Hubbard’s performance review, which praises her adeptness at ferreting out billing issues. All this evidence casts doubt on whether Fortier and Lacivita truly believed that Hubbard’s performance suffered from these alleged deficiencies. Significantly, these reasons are inconsistent with documented evidence of what Lacivita thought of Hubbard’s job performance just prior to the DVW. This, in combination with the suspicious timing of Hubbard’s complaint to Lacivita and his direction to issue the DVW, would permit a reasonable jury to find that the DVW was retaliation for Hubbard’s protected expression.
Therefore, Hubbard’s retaliation claim is appropriate for jury resolution. Summary judgment is denied on Count IV.
CONCLUSION
In sum, Hubbard has failed to set forth facts from which a reasonable jury could find that Blue Cross violated the FMLA. She has, however, raised a genuine issue of material fact as to whether Lacivita failed to upgrade Hubbard’s position because of her sex, and whether Lacivita retaliated against her for complaining about it.
Therefore, Blue Cross’ motion for summary judgment is granted in part and denied in part. It is granted on Count I, but denied on Counts III and IV. The parties are ordered to attend a status hearing at 9:15 a.m. on April 24, 1998 to set a fair and efficient schedule for trial on Hubbard’s Title VII claims.
Notes
. We need not consider Count II, which alleges disability discrimination under the Rehabilitation Act, 29 U.S.C. § 794 et seq., because Hubbard explicitly abandoned this claim in her response to Blue Cross’ summary judgment motion.
. Local General Rule 12(M)3 requires a party moving for summary judgment to file "a statement of material facts as to which the moving party contends there is no genuine issue." UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS LOCAL GENERAL RULE (hereinafter "Local Rule")
12(M)(3).
The
movant's statement must contain
"specific references to affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth.”
Id.
Blue Cross’ statement shall be cited as "Def.’s Facts ¶_” Similarly, Local Rule I2(N)(3)(a) requires the non-moving party to file a concise response to the movant's statement including, in the case of any disagreement, specific references to supporting materials. Hubbard’s response shall be cited as "PI.'s Facts ¶_” Local Rule 12(N)(3)(b) authorizes the non-moving party to submit a statement of "additional facts that require the denial of summary judgment”; pursuant to Local Rule 12(M), the moving party may then submit a reply to the non-moving party's additional facts. Hubbard's statement of additional facts shall be cited as "PI.’s Add’l Facts ¶_,” and Blue Cross’ reply shall be cited as "Def.’s Resp. Add'l Facts ¶_” All properly supported material facts set forth in either party’s statement (i.e., Def.'s Facts or Pl.'s Add’l Facts) are deemed admitted unless properly controverted.
See
Local Rule 12(M) and 12(N)(3)(b);
see also Flaherty
v.
Gas Research Institute,
. These positions were not required to be posted; Blue Cross policy affords department heads the discretion to rewrite subordinate positions and promote from within the department. Def.'s Facts Ex. 1 ¶ 4.
. Hubbard’s review was dated June 7, 1995, but Lacivita and Hubbard did not sign it until two weeks later.
. This was consistent with all of Hubbard’s previous reviews from other supervisors. PI.’s Add! Facts ¶ 1.
. Hubbard complained to Lacivita on July 4, 1995.
. Hubbard claims that this letter followed a telephone conversation between her and Glass, during which Glass requested Hubbard to return to work on January 2. However, Hubbard has not cóme close to establishing the foundation required for us to consider the alleged telephone conversation as evidence. See Fed.R.Evid. 901(b)(6).
. Hubbard's complaint never discloses the statutory section on which her FMLA claim is based, but she does cite 29 U.S.C. § 2614 in her response brief.
. In this case, the employer's discriminatory intent would be "to interfere with, restrain, or deny the exercise of, or the attempt to exercise" an employee's rights under the FMLA, in violation of 29 U.S.C. § 2615(a)(1).
.We note that, in failing to file Diaz with this Court as supplemental authority, both Hubbard’s and Blue Cross' counsel neglected their duty to inform the court about new developments affecting the analysis of the present case.
. Under
Morgan,
the employee must first establish a prima facie case that: (1) she availed herself of a protected right under the FMLA; (2) she was adversely affected by an employment decision; and (3) there is a causal connection between the two actions.
. These reviews also criticized Hubbard for insubordinate and hostile behavior — behavior that Hubbard flatly denies. We express no opinion on the legal effect of this criticism and denial because Hubbard admits to other conduct that failed the CAP goals.
. Hubbard presents no direct evidence of retaliation.