Broadstone et al v. Sherman's Place, Inc.
Filing
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ORDER & OPINION entered by Chief Judge James E. Shadid on 12/12/2017. For the reasons set forth above, Defendant's Motion 31 for Summary Judgment is GRANTED as to Broadstone's Illinois Sales Representative Act claim and DENIED as to Broadstone's discrimination and retaliation claims. SEE FULL WRITTEN ORDER & OPINION. (JS, ilcd)
E-FILED
Tuesday, 12 December, 2017 02:39:18 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
LAURA BROADSTONE, JULIE
BOESCH, and RENEE BOESCH,
Plaintiffs,
v.
SHERMAN’S PLACE, INC.,
Defendant.
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Case No. 15-1453
ORDER AND OPINION
Now before the Court is Defendant’s Motion [31] for Summary Judgment as to Plaintiff
Laura Broadstone. For the reasons set forth below, Defendant’s Motion [31] is GRANTED in
part and DENIED in part.
BACKGROUND 1
Defendant, Sherman’s Place, Inc. (“Sherman’s”), is a corporation in the business of
selling appliances, electronics, furniture, and mattresses. Sherman’s has stores in Peoria, Normal,
and Peru, Illinois. Plaintiff, Laura Broadstone, began working for Sherman’s in Peoria on
February 14, 2011 as a commission-based sales professional. During her tenure at Sherman’s,
Broadstone consistently ranked among the top salespeople. Like her co-Plaintifffs, however,
Broadstone’s relationship with other Sherman’s employees was more complicated.
One of those employees was Jim Torok. Torok, one of Sherman’s store managers, was not
particularly liked by most Sherman’s employees. Broadstone complained about Torok to another
Sherman’s manager, Tony Hnilicka, on February 6 and March 6, 2014. According to Broadstone,
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The following facts are culled from Defendant’s Statement of Facts, Plaintiff’s Additional Material Facts, and the
depositions and other exhibits in the record.
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she told Hnilicka that she was having a problem with Torok treating her different than he treated
other men, making humiliating and rude comments to her, and not splitting commissions with
her. Doc. 36-2 (Broadstone Dep. at 133). Broadstone testified that Hnilicka responded to her
complaint by stating that she was not being treated differently than men. Broadstone Dep. at 135.
Broadstone also complained to Hnilicka about Torok on March 6, 2014. Plaintiff testified at her
deposition that she again complained to Hnilicka about Torok treating her differently than male
employees and also complained that Torok interfered with her attempted sale of furniture to a
customer Broadstone had worked with in the past. Id. at 146–49.
On March 24, 2014, Broadstone told Assistant Manager Paul Dan Stein that she wanted
to speak with Hnilicka and Human Resources Manager Renee Boesch about Torok treating her
differently than men. Id. at 160–61. She also told Stein that other salespeople—Josh Osterman,
Joe Moon, Roger Bauer, Jeff Brooks, and Dennis Farney—witnessed Torok’s conduct and would
be able to vouch for her claims. Id. at 170–73. Stein informed Hnilicka and Boesch that
Broadstone was complaining about Torok picking on her, but he did not mention Broadstone’s
complaint that she was being treated differently than men. Boesch and Hnilicka proceeded to
interview five or six of the salespeople Broadstone listed. Doc. 29-1 (R. Boesch Dep. at 196–97).
According to Boesch, Hnilicka led the interviews and asked the salesmen whether Broadstone
was the problem, to which some agreed. R. Boesch Dep. at 197. On March 28, 2014, Boesch and
Hnilicka decided to discipline Broadstone for “complaining about multiple team members to
multiple team members,” being disruptive in her conversations, and not going to Human
Resources. Doc. 31-1, at 95 (Employee Transaction Form).
On April 29, 2014, Hnilicka received a telephone call from a customer who was upset
about a mattress Broadstone recently sold to him. Willie Oliver, another Sherman’s salesperson,
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was present and heard Hnilicka’s side of the phone conversation with the customer. According to
Hnilicka, the customer claimed that Broadstone represented that the clearance mattress was only
tried out in the store and that it was discounted simply because it was the last year’s model. Doc.
31-3 (Hnilicka Dep. at 36–37). The customer complained that Broadstone lied in order to sell
him a used mattress because when it was delivered it was dirty and had markings on it. Hnilicka
Dep. at 52. The stock keeping unit (“SKU”) for the mattress indicated that it was a “satisfaction”
mattress, meaning that it had been purchased and returned by a customer who was not satisfied
with it. Broadstone admitted at her deposition that she did not see that the mattress was a
satisfaction mattress. Broadstone Dep. at 342. However, Broadstone also testified that the words
“never used” were written on the mattress tag, and that she explained to the customer that she
was unsure why this particular mattress was on clearance. Similarly, Oliver testified that he went
to look at the clearance mattresses immediately after the incident and observed four mattresses
with “never used” written on the tags. Doc. 36-3 (Oliver Dep. at 34); Doc. 36-1, at 3 (photograph
of a mattress tag with “never used” written on tag).
Hnilicka resolved the customer’s complaint by replacing the half-price clearance
mattress with a new mattress at no additional charge. Hnilicka then informed Boesch that a
customer had called in and reported that Broadstone lied by selling him a used mattress she was
pretending was a new mattress. Hnilicka and Boesch met with Broadstone on May 1, 2014,
provided her with an Employee Transaction Form, and terminated her employment with
Sherman’s. See Doc. 31-1, at 97 (Employee Transaction Form). Sherman’s stated in the
Employee Transaction Form that, “[b]ased on the customer’s very detailed knowledge of what
our sales terminology was, we feel that Laura blatantly violated procedure to increase her sales.
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We are therefore terminating her employment effective immediately.” Id. At his deposition,
Hnilicka testified as follows:
Q. Did Laura ask you to take you down to the mattress area and show you the
mattresses there to explain what had happened?
A. I believe.
Q. Did you go down with her and look?
A. No.
Q. You didn’t believe—it was serious enough [for] you [to] believe it warranted
termination, correct?
A. Yes.
Q. But you didn’t think it was necessary for you to hear Laura’s side of the story
and have her show you the mattresses that were down there that were similar?
A. No. There may have been similar mattresses, but that mattress that is in
question for the sale that was in question was already gone and the decision
had been made.
A. Well, without going down there and look[ing], you wouldn’t know for sure
whether there weren’t similar mattresses, substantially similar mattresses, to
the one that was the subject of that transaction with the customer, Carl
Arrenius?
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Q. Well, what if you’d seen other mattress tags that had “never used” like that
Exhibit 10 I showed you? You want to see it again, the photograph?
A. You’re asking what if I saw something that said “never used” on it, what would
my response have been?
Q. Yeah.
A. Never used really is not something that was commonly on those. We rely on
the designation within the skew [sic] that the salesperson enters in to know
whether or not a mattress was uncrated, was clearance, or was satisfaction.
Anyone at any point in time could handwrite never used on something, and
that was not something that was commonly on items ….
Q. Of course, you wouldn’t know if there were any others down there because
you never went and looked at the time she offered to take you; is that true?
A. I would know from walking the floor, knowing what’s in my clearance
department, but I did not go downstairs with Laura at that point in time, no.
Q. What I’m saying is: If there were other pieces of paper that had never used
written on them, that would be consistent with what Laura said, that they were
never used, correct?
A. Could be, yes.
Q. But you never considered that possibility? Did you or did you not consider that
possibility.
A. I considered that possibility when speaking with the customer, Carl Arrenius
and his wife, but never used was not something that we wrote on things and
could trust as a—
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Hnilicka Dep. at 46–49.
Renee Boesch testified that she had recently recommended that a male Sherman’s
employee be terminated for stealing, so “when they told me that what Laura had done was
stealing, I thought that was—that that’s a no-brainer because we’re going to treat people evenly.
Doc. 29-1 (R. Boesch Dep. at 220–221). However, Boesch also testified that, in hindsight, she
“didn’t realize the situation was as gray as it actually was” and that “there are far more shades to
what happened there.” R. Boesch Dep. at 221.
LEGAL STANDARD
Summary judgment is appropriate where the movant shows, through “materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations … admissions, interrogatory answers, or other materials,” that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56. In resolving a motion for summary judgment, “[t]he court has one task
and one task only: to decide, based on the evidence of record, whether there is any material
dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.
1994).
In order to withstand a motion for summary judgment, the nonmovant must “set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). When presented with a motion for summary judgment, the court must
construe the record “in the light most favorable to the nonmovant and avoid[] the temptation to
decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003). If the evidence, however, is “merely colorable, or is not significantly probative
or merely raises ‘some metaphysical doubt as the material facts,’ summary judgment may be
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granted.” Liberty Lobby, 477 U.S. at 249–50. Thus, in order to overcome the undisputed facts set
forth in a defendant’s motion for summary judgment, a plaintiff cannot rest on the allegations in
his complaint but must point to affidavits, depositions or other evidence of an admissible sort
that a genuine dispute of material fact exists between the parties. Fed. R. Civ. P. 56(e)(2);
Behrens v. Pelletier, 516 U.S. 299, 309 (1996).
DISCUSSION
(1) Discrimination
Title VII prohibits an employer from “discriminat[ing] against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment, because of such
individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(1). Discrimination claims based on discrete acts are
often analyzed under the direct or indirect methods of proof, though the legal standard 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.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).
Under the direct method, a plaintiff can “avoid summary judgment for the other party by
creating a triable issue of whether the adverse employment action of which she complains had a
discriminatory motivation.” Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 721 (7th Cir. 2005)
(internal quotations omitted). A plaintiff may use circumstantial evidence to establish
discriminatory motivation under the direct method. “Circumstantial evidence comes generally in
three flavors: (1) suspicious timing, ambiguous statements, behavior towards other employees
and so on; (2) evidence, but not necessarily rigorous statistical evidence, that similarly situated
employees were treated differently, or (3) evidence that the employee was qualified for the
promotion and passed over and the employer’s reason for the difference in treatment is a pretext
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for discrimination. Volovsek v. Wisconsin Dep’t of Agr., Trade & Consumer Prot., 344 F.3d 680,
689–90 (7th Cir. 2003) (citing Troupe v. May Dep’t Stores, 20 F.3d 734, 736 (7th Cir. 1994)).
Under the indirect, or McDonnell Douglas burden-shifting approach, “the plaintiff has
the initial burden of establishing that (1) she is a member of a protected class, (2) she performed
reasonably on the job in accord with her employer[’s] legitimate expectations, (3) despite her
reasonable performance, she was subjected to an adverse employment action, and (4) similarly
situated employees outside of her protected class were treated more favorably by the employer.”
David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225 (7th Cir. 2017) (internal
citations omitted). “If the plaintiff satisfies that burden, then the employer must articulate a
legitimate, nondiscriminatory reason for the adverse employment action, at which point the
burden shifts back to the plaintiff to submit evidence that the employer’s explanation is
pretextual.” Id.
Here, Broadstone has produced sufficient circumstantial evidence to create a triable issue
of whether her termination was motivated by discriminatory intent. Rudin, 420 F.3d at 721. First,
the timing of Broadstone’s termination was suspicious. Her termination came shortly after she
was disciplined for complaining about unfair treatment (and perhaps discrimination) by Torok. In
response to her complaint, Sherman’s, via Hnilicka, interviewed and asked salesmen whether
Broadstone was the problem. Sherman’s determined that Broadstone was the source of the
problem without ever talking with her, as evidenced by her March 28, 2014 Employee
Transaction Form. Doc. 31-1, at 95. Broadstone also testified that Hnilicka dismissed her
previous complaint about Torok treating her differently than men because Torok had “never lied”
to him.
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The circumstances surrounding Broadstone’s termination are also suspicious. Broadstone
was terminated for misrepresenting the condition of a mattress to a customer. According to
Oliver, although managers usually sided with the salespeople when customers called to
complain, when Broadstone’s customer called, Hnilicka immediately sided with the customer
and “threw Broadstone under the bus.” Hnilicka also ignored Broadstone’s explanation that the
words “never used” were written on the mattress tag and did not bother to go look, since “the
decision had [already] been made” and “never used” was “not something that was common on
those.” Hnilicka Dep. at 46–49. On the other hand, Oliver testified that he saw four clearance
mattresses with “never used” on the tags immediately after the incident and took a picture of one.
Jeffrey Brooks also testified that he saw clearance mattresses with “never used” on them. Doc.
36-4 (Brooks Dep. at 66).
Lastly, Sherman’s justified Broadstone’s termination for the mattress debacle by
assuming that Broadstone purposely deceived a customer in order to increase sales or to receive
a larger commission, but the record evidence before the Court casts doubt on either motive. It
appears that Sherman’s commissions for clearance mattresses were marginally higher than for
new stock, but even so, it is hard to understand why a commission-based employee would
purposely steer a customer away from purchasing a $3,200 mattress in order to sell them a
$1,500 mattress. See, e.g., Doc. 31-3, at 29 (commission summary). Taken together, Broadstone
has shown “suspicious timing, ambiguous statements, behavior towards other employees and so
on” giving rise to an inference of discrimination. Volovsek, 344 F.3d at 689–90. Viewing the
evidence as a whole, a reasonable juror could conclude that Broadstone’s sex caused her
termination. Ortiz, 834 F.3d at 765.
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(2) Retaliation
Title VII “prohibits discriminating against an employee ‘because [she] has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.’ ” 42 U.S.C. § 2000e–3(a). Courts in this Circuit have recognized
two methods of proof for retaliation claims. In order to succeed under the direct method on her
Title VII retaliation claim, Plaintiff must “present evidence of (1) a statutorily protected activity;
(2) a materially adverse action taken by the employer; and (3) a causal connection between the
two.” Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 382–83 (7th Cir. 2016)
(citing Turner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010)). Under the indirect method,
a plaintiff must prove that she “(1) engaged in a statutorily protected activity; (2) met h[er]
employer’s legitimate expectations; (3) suffered an adverse employment action; and (4) was
treated less favorably than similarly situated employees who did not engage in statutorily
protected activity.” Turner, 595 F.3d at 688 (internal citations omitted).
Here, a dispute of fact exists as to whether Broadstone complained about being treated
differently because of her sex. Her termination came shortly after her last alleged complaint of
discrimination, for which she received a disciplinary write-up. Plaintiff has also produced some
evidence that Torok treated Broadstone less favorably than other salespeople and Hnilika treated
the customer complaint about Broadstone as true when customer complaints about other
salespeople were looked upon with skepticism. Finally, that write-up was used in part to justify
her termination. Under either method of proof, Plaintiff has identified material factual disputes
with respect to her retaliation claim sufficient to survive summary judgment.
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(3) Illinois Sales Representative Act
Plaintiff does not respond to the arguments in Defendant’s Motion regarding her Illinois
Sales Representative Act commission claim. Pursuant to Local Rule 7.1(D)(2), her failure to
respond is deemed an admission. Summary judgment is therefore granted in favor of Defendant
on Plaintiff’s commission claim.
CONCLUSION
For the reasons set forth above, Defendant’s Motion [31] for Summary Judgment is
GRANTED as to Broadstone’s Illinois Sales Representative Act claim and DENIED as to
Broadstone’s discrimination and retaliation claims.
Signed on this 12th day of December, 2017.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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