Hernandez v. Forest Preserve District of Cook County, Illinois,
Filing
94
MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 9/21/2011. Notices Mailed by Judge's Staff(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GRONIMO HERNANDEZ,
Plaintiff,
v.
FOREST PRESERVE DISTRICT OF
COOK COUNTY, ILLINOIS,
Defendant.
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Case No. 08-cv-5731
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Gronimo Hernandez filed this civil rights action against the Forest Preserve
District of Cook County (“District”) on October 7, 2008, alleging national origin discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964. Before the Court is the
District’s second motion for summary judgment [71], along with three motions to strike [82, 84,
86] filed by Defendant. For the reasons stated below, the Court denies the District’s three
motions to strike [82, 84, 86] and grants the District’s second motion for summary judgment
[71].
I.
Background
A.
Motions to Strike
Before the Court are three motions to strike filed by Defendant. These three motions
were filed after the Court previously denied a motion to strike filed by Defendant in conjunction
with its first motion for summary judgment. The Court’s ruling on the previously filed motion to
strike was as follows:
Defendant asks the Court to strike Plaintiff’s additional fact number 6 on the
ground that Plaintiff lacks personal knowledge of the matter asserted. On its web
page (see http://www.ilnd.uscourts.gov/home/JudgeInfo.aspx), this Court has
included among its Case Management Procedures a link for Summary Judgment
Local Rule 56.1 Submissions. That link contains the following statement: Motions
to strike all or portions of an opposing party’s Local Rule 56.1 submission are
disfavored. Under ordinary circumstances, if a party contends that its opponent
has included inadmissible evidence, improper argument, or other objectionable
material in a Rule 56.1 submission, the party’s argument that the offending
material should not be considered should be included in its response or reply
brief, not in a separate motion to strike. Local Rule 56.1(a) provides the means
for implementing the Court’s preferred practice: [i]f additional material facts are
submitted by the opposing party pursuant to section (b), the moving party may
submit a concise reply in the form prescribed in that section for a response. Local
Rule 56.1 also requires that assertions advanced as proposed statements of
material fact be supported by admissible record evidence, and where such
evidence is lacking, the Court is within its discretion to disregard the statement.
See, e.g., Malec v. Sanford, 191 F.R.D. 581, 583−85 (N.D. Ill. 2000). Consistent
with these procedures, Defendant’s motion to strike [51] is respectfully denied;
however, the Court may disregard any assertions of fact that lack proper
evidentiary support.
As with the prior motion to strike, the current motions to strike challenge three affidavits
submitted by Plaintiff based on the requirement that affidavits “be made on personal knowledge,
setting forth such facts as would be admissible in evidence, and showing affirmatively that the
affiant is competent to testify to the matters stated therein.” Drake v. Minnesota Mining &
Manufacturing Co., 134 F.3d 878, 887 (7th Cir. 1998); see also Joseph P. Caulfield & Assocs.,
Inc. v. Litho Prods., Inc., 155 F.3d 883, 888 (7th Cir. 1998) (testimony “that was necessarily
speculative and lacking in foundation * * * is insufficient.”); Fed. R. Civ. P. 56(e).
To the extent that Defendant believes that the Court’s approach to motions to strike has
changed over the course of the year between summary judgment motions, it has not. The Court
is capable of disregarding unfounded assertions of fact found in Plaintiff’s statement. Any
statements or responses that contain legal conclusions or argument, are evasive, contain hearsay
or are not based on personal knowledge, are irrelevant, or are not supported by evidence in the
record will not be considered by the Court in ruling on Defendant’s motion for summary
judgment. Consistent with its obligations under the federal and local rules, the Court will rely
2
only on material statements of fact which are both admissible and supported by the record
compiled at the summary judgment stage. See Fed. R. Civ. P. 56(e); L.R. 56.1; see also Davis v.
Elec. Ins. Trs., 519 F. Supp. 2d 834, 836 (N.D. Ill. 2007); Lawrence v. Bd. of Election Com’rs of
City of Chicago, 524 F. Supp. 2d 1011, 1014 (N.D. Ill. 2007). As far as the District’s attacks on
the credibility of the three affiants (Gronimo Hernandez, Joseph Hruska, and Dwaine Hicks),
those matters would be for a jury, not the Court, to resolve. Defendant’s three motions to strike
are denied.
B.
Facts
In September 2006, the District hired Gronimo Hernandez, who is Puerto Rican, as a
maintenance mechanic. He was assigned to the Central Garage under the supervision of Thomas
Thompson. As a maintenance mechanic, Hernandez’s primary duty was to repair the District’s
trucks. As of September 1, 2006, the District had four maintenance mechanics: Hernandez,
Dwaine Hicks (African American), David Benevidez (Hispanic American), and Ted Adams
(African American). Hicks was hired on the same day as Hernandez, while Benevidez and
Adams had been hired years before. With the exception of David Benevidez, who was assigned
to repair police vehicles, all mechanics worked on all of the trucks without regard to the trucks’
age. All of the jobs that Thompson assigned to Hernandez were jobs that were properly assigned
to a mechanic and that fell within Hernandez’s job description.
On February 1, 2007, Hernandez filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging that the District discriminated and
retaliated against him in violation of Title VII of the Civil Rights Act of 1964.1 On October 7,
1
Eight days later, on February 9, 2007, Hernandez filed a Chapter 13 bankruptcy petition in the
Bankruptcy Court for the Northern District of Illinois. Hernandez did not list his claims against the
District on his bankruptcy petition. On August 18, 2009, the District filed its first summary judgment
motion on the ground that Hernandez was not the real party in interest due to his having filed a
3
2008, after obtaining a Notice of Right to Sue from the EEOC, Hernandez filed this action. In
his complaint, Hernandez claims that the District harassed him in the terms and conditions of his
employment by refusing to allow him to leave work to go for medical treatment after he cut
himself at work, orally reprimanding him for speaking Spanish during working hours, and
calling him derogatory names.
During his deposition, Hernandez testified that Thompson told him and a MexicanAmerican co-worker to stop speaking in Spanish to each other on October 24, 2006. He also
testified that, during one conversation in November 2006, Thompson called him names such as
“pig pen,” “dirty,” “stupid,” “a junkyard mechanic,” and a “Pollack.”2 He also maintains that he
was required to work primarily on older vehicles in poor condition and that sometime in 2008 his
work area was moved to in front of the main office to prevent him from talking with co-worker
Hicks and so that he could be observed by his supervisor. Hernandez claims that he had to
request that parts be ordered, whereas other co-workers were not subject to the same restrictions.
bankruptcy petition. On March 29, 2010, the Court denied the District’s motion, allowing Hernandez to
pursue this action on behalf of his creditors.
2
During his deposition, Hernandez testified that all of these comments occurred in a single conversation
with Thompson in November 2006. His complaint also reflects that the derogatory remarks were made
during one conversation in November 2006. However, in response to Defendant’s summary judgment
motion, Hernandez disputes this fact by citing generally to his affidavit, created on March 3, 2011, nearly
two years after his deposition in June 2009. To the extent that a party’s statements in an affidavit
contradict his deposition testimony, the Court will not consider the affidavit in ruling on the summary
judgment motions. See Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996) (“As a general rule,
the law of this circuit does not permit a party to create an issue of fact by submitting an affidavit whose
conclusions contradict prior deposition or other sworn testimony”); see also Patterson v. Chicago Ass'n
for Retarded Citizens, 150 F.3d 719, 720 (7th Cir. 1998). Hernandez’s post-deposition statement (his
affidavit), claiming that from September 2006 to the present Thompson has called him derogatory names
despite his prior deposition testimony that the name-calling occurred only during one conversation (as
well as the allegations in the complaint that the name-calling occurred only on one day), is precisely the
type of self-serving affidavit that the case law cited above forbids. See Slowiak v. Land O'Lakes, Inc., 987
F.2d 1293, 1295 (7th Cir. 1993) (finding that “[s]elf-serving affidavits without factual support in the
record will not defeat a motion for summary judgment”). To the extent that Hernandez’s affidavit
conflicts with his deposition testimony, his deposition testimony will be accepted.
4
He testified that he was not allowed to go into office to “sit around” like other employees; rather,
he could only go into the office to get his work orders. Finally, he maintains that on October 17,
2006, a district employee (not Thompson) did not allow him to go to the hospital after he cut his
leg while working. After work on October 17, Hernandez did not go to the hospital; rather, he
waited two months to go the hospital for his injury.
In support of his retaliation claim, Hernandez maintains that his supervisor, Thompson,
asked Joseph Hruska, a maintenance foreman, to document any moves made by Hicks and
Hernandez because they “needed to be fired” for filing charges of discrimination against
Thompson. Hruska worked at the garage for approximately three months of the four and a half
years that Plaintiff had been employed by the District, from May 29, 2008 until September 5,
2008.3 Hernandez filed his charge of discrimination in February 2007, more than a year before
Hruska started working. According to Hruska’s affidavit, Thompson did not ask Hruska to
document the activities of any other maintenance mechanics, but directed him to draft multiple
disciplinary action forms against Hernandez.4 Hernandez did not attach a single disciplinary
action form signed by Hruska to his summary judgment materials, and he only refers to one
specific form—from July 17, 2008—that he alleges Thompson asked Hruska to complete.
Notably, the July 17, 2008 form is not signed by Thompson, but rather by James Wagner.
Hernandez has not alleged any discrimination or retaliation against Wagner.
3
As the District points out, Hruska’s affidavit contains some sweeping statements that purport to be
about Hernandez’s job performance generally, even though Hruska was only employed by the District for
roughly three months during Hernandez’s time as a mechanic. The Court construes such claims by
Hruska as confined to the period when he and Hernandez both worked at the Central Garage, prior to
Hruska’s termination.
4
Disciplinary action forms are put in an employee’s personnel file and remain there unless the District
agrees to remove the form.
5
Hruska did not believe that the disciplinary forms that he filled out regarding Hernandez
were “accurate or factual,” as Hruska believed that Hernandez was meeting or exceeding the
work place expectations for the three months they worked together. During his employment as
foreman, Hruska did not believe any other mechanics ever received disciplinary write-ups.
During this time, Hruska thought that Thompson often criticized Hernandez’s work performance.
Hernandez’ regular work schedule is from 7:00 a.m. to 3:30 p.m. One day, Hernandez
came to work 5.5 hours late due to a doctor’s appointment. Despite the garage’s procedures,
which require employees to contact their supervisor if they will be late to work, he did not
attempt to contact his supervisor prior to the start of the work day. Hernandez was “docked” pay
for the hours that he missed. During his deposition, he did not know of any other employee who
came to work five hours late but was not docked.5
Hernandez admitted in his response to Defendant’s statement of facts that all of his
complaints of discrimination and retaliation are directed to one District employee, his supervisor
Thomas Thompson. Furthermore, based on the record before the Court, Hernandez continues to
be employed as a maintenance mechanic in the District’s Central Garage. His salary has never
been decreased, and he has never lost benefits. However, Hernandez alleges that he continues to
receive approximately one disciplinary action form per month.
In his summary judgment
materials, Hernandez submitted six disciplinary actions forms ranging from January 2007 to July
2008 (approximately nineteen months), three of which were signed by Thomas Thompson, two
of which were signed by Len Dufkis, and one that was signed by James Wagner.
5
Once again, in spite of deposition testimony to the contrary, Hernandez cites generally to his affidavit
and claims that this fact is disputed. However, he has not pointed to any specific evidence in the record,
or in his affidavit, to refute the facts that he came to work late, failed to notify his supervisor prior to his
shift, and is not aware of any other employees who were not docked pay for doing the same thing.
6
II.
Legal Standard on Summary Judgment
Summary judgment is proper where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In
determining whether there is a genuine issue of fact, the Court “must construe the facts and draw
all reasonable inferences in the light most favorable to the nonmoving party.” Foley v. City of
Lafayette, Ind., 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing
party must go beyond the pleadings and “set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation
marks and citation omitted).
A genuine issue of material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The party seeking
summary judgment has the burden of establishing the lack of any genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against “a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at trial.” Id. at 322. The
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). “The mere existence of a scintilla of evidence in support of the [non-movant's] position
will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.
No heightened standard of summary judgment exists in employment discrimination
cases, nor is there a separate rule of civil procedure governing summary judgment in
employment cases. Alexander v. Wisconsin Dept. of Health and Family Servs., 263 F.3d 673,
7
681 (7th Cir. 2001) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir.
1997)). However, intent and credibility frequently are critical issues in employment cases that in
many instances are genuinely contestable and not appropriate for a court to decide on summary
judgment. See id. Nevertheless, summary judgment in favor of the defendant is hardly unknown
or, for that matter, rare in employment discrimination cases. Wallace, 103 F.3d at 1396.
III.
Analysis
Hernandez alleges that the District discriminated against him on the basis of his race or
national origin by subjecting him to a hostile work environment and also retaliated against him
for filing grievances against his supervisor. The District maintains that summary judgment is
appropriate on his hostile work environment claim because Hernandez has not alleged
harassment that is so subjectively and objectively severe or pervasive that it altered the
conditions of his employment. Furthermore, the District maintains that summary judgment
should be granted as to Hernandez’s retaliation claim because he has failed to allege that he
suffered an adverse employment action.
A.
Plaintiff’s Hostile Work Environment Claim
In order to establish a prima facie case of a hostile work environment based on national
origin or race6, a plaintiff must demonstrate that (1) he was subject to unwelcome harassment;
(2) the harassment was based on his national origin or race; (3) the harassment was sufficiently
severe or pervasive so as to alter the conditions of her employment and create a hostile or
abusive atmosphere; and (4) there is a basis for employer liability. Luckie v. Ameritech Corp.,
6
Hernandez uses race and national origin interchangeably in his response brief. Hernandez’s EEOC
charge alleges discrimination based on national origin, but his complaint alleges discrimination based on
race. See generally Torres v. City of Chicago, 2000 WL 549588, at *2 (N.D. Ill. May 1, 2000) (noting
that the common use, or misuse, of the term “Hispanic” has blurred the line between race and national
origin discrimination as it pertains to Hispanics). Whether Hernandez is pursuing a race or national origin
discrimination claim (or both) does not affect the Court’s analysis in this case.
8
389 F.3d 708, 713 (7th Cir. 2004); see also Dear v. Shinseki, 578 F.3d 605, 611 (7th Cir. 2009).
To satisfy his burden, a plaintiff must present evidence showing “a workplace permeated with
discriminatory ridicule, intimidation, and insult.” Id. at 714. Normally, such allegations of
harassment are supported by facts that the Plaintiff is the target of racial slurs, epithets, or other
overtly race-related behavior. Id. at 713. Defendant maintains that Plaintiff’s harassment claim
fails for two reasons: first, because the environment that he alleges constitutes a hostile work
environment was not objectively offensive or so severe or pervasive that it altered the conditions
of his employment; and second, because the majority of Plaintiff’s evidence does not reflect that
the alleged harassment was motivated by his race or national origin.
As Defendant points out, many of the comments and actions about which Hernandez
complains do not appear to be related to his race or national origin. For example, Hernandez
complains that his supervisor, Thompson, would not give Hernandez permission to leave work to
go to the hospital when Hernandez cut himself on the job. However, there is nothing about that
incident that relates to Hernandez’s national origin. Even more problematic for Hernandez, he
admitted in his deposition that the person who denied Hernandez’s request to go to the hospital
was not Thompson—his supervisor—but rather another office worker, Jim Manischewitz.
Additionally, Hernandez himself did not go to the hospital after work. Rather, he waited until
two months later before going to the hospital. Thus, this incident does not support an inference
that he was subjected to a hostile work environment on account of his race or national origin.
The two remaining, specific incidents that Hernandez highlighted in his deposition—one
in October of 2006 and one in November 2006—involve rude language, but at the end of the
day, do not present a jury question on the existence of a hostile work environment. First,
Hernandez maintains that on November 20, 2006, Thompson criticized the cleanliness of his
9
work station and called him names such as “pig pen” or “pig,” “dirty,” “stupid,” “a junkyard
mechanic,” and a “Pollack” during an exchange with Plaintiff. Hernandez also claims that
Thompson also referred to him as Puerto-Rican during this exchange. Comments such as “pig
pen” or “pig,” “dirty,” “stupid,” and “a junkyard mechanic,” while offensive and rude, do not
indicate that the alleged harassment was motivated by Hernandez’s race or national origin. See
Luckie, 389 F.3d at 713-14 (summary judgment appropriate when none of the incidents were
sufficiently connected to race); Patton, 276 F.3d at 339 (no evidence that supervisor’s “abusive”
and “rude” treatment of plaintiff was motivated by her race or gender). Thus, viewing these
allegations in the light most favorable to Hernandez, the majority of these statements do not
appear to implicate Hernandez’s national origin, but rather relate to the cleanliness of his work
station. Criticism of one’s hygiene, or the cleanliness of one’s surroundings, can be demeaning,
but typically does not rise to the level of harassment. Workplace harassment must be connected
to a plaintiff’s race or national origin before it reasonably may be construed as being motivated
by the defendant’s hostility to the plaintiff’s race or national origin. Beamon v. Marshal & Isley
Trust Co., 411 F. 3d 854, 863-864 (7th Cir. 2005). These allegations do not rise to the level of
being sufficiently connected to Hernandez’s national origin to be evidence of race-based animus.
The remaining two references from the November 20 exchange—that Plaintiff was
Puerto Rican and looks like a “Pollack”—are related to a person’s national origin.
But
Thompson’s alleged comment that Hernandez looks like a Pollack it is not evidence of national
origin discrimination toward someone of Puerto Rican national origin. And simply calling
someone of Puerto Rican descent a “Puerto Rican” is not a racial epithet. Compare Cerros v
Steel Technologies, Inc., 288 F.3d 1040, 1042 (7th Cir. 2002) (where the Seventh Circuit found
the names “brown boy,” “spic,” “wetback,” “Julio,” and “Javier,” to be “racialized derogatory
10
names”). But even assuming that the comments were meant (or said) in a derogatory manner
and thus could be said to reflect national origin animus, these comments occurred during a single
conversation, on one day. Evidence of a supervisor’s occasional or sporadic use of a slur
directed at an employees’ race, ethnicity, or national origin generally is not enough to support a
claim under Title VII. See, e.g., Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380 (7th
Cir. 1986); see also Smith v. Northeastern Ill. Univ., 388 F.3d 559, 566 (7th Cir. 2004) (work
environment was not objectively hostile within the meaning of Title VII, even when racial and
derogatory slurs had been overheard by African-American employees on a number of occasions).
As the court in Patton explained, “Title VII ‘does not guarantee a utopian workplace, or even a
pleasant one.’” Id. (quoting Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1162 (7th Cir. 1994);
see also Spearman, 231 F.3d at 1086 (Title VII is not a “general civility code” for the workplace)
(internal citations omitted).
Here, even assuming that the words carried with them a
discriminatory animus, the frequency of the harassment simply fails to rise to the level of
“pervasive.”
In further support of his argument that the harassment was severe and pervasive,
Hernandez maintains that on October 24, 2006, when he and another employee were speaking
Spanish on break, Thompson told Hernandez that he should not speak Spanish on the job. See,
e.g., Hong v. Children’s Memorial Hosp., 993 F.2d 1257, 1265-67 (7th Cir. 1993) (finding that
the statement “learn to speak English” could be circumstantial proof of discriminatory animus,
but noting that “remarks at work that are based on stereotypes of an individual’s national origin
do not invariably prove that national origin played a part in an employment decision”). Even
assuming this incident demonstrates some animus on the part of Thompson, the two incidents in
the Fall of 2006 together do not rise to the level needed to establish a hostile work environment.
11
As mentioned above, in order to sustain a hostile work environment claim, the events
complained of must be objectively offensive and so severe or pervasive as to alter the conditions
of employment. Luckie, 389 F.3d at 714; Patton v. Indianopolis Public Sch. Bd., 276 F.3d 334,
339 (7th Cir. 2002) (plaintiff’s allegations of being treated in a rude, abrupt and arrogant manner
by supervisors and coworkers were not sufficiently sever or pervasive). In making a hostile
work environment determination, a court “must consider the totality of the circumstances,
including the frequency of the discriminatory conduct, its severity; whether it is physically
threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance. Cerros, 288 F. 3d at 1046. In terms of frequency, the
complaint and Plaintiff’s deposition testimony identifies two dates during the course of
Hernandez’s four and a half year employment on which Hernandez alleges that he was subjected
to harassing comments by Thompson.7 The additional complaints of being watched more closely
by his supervisor and not being allowed certain privileges at work, considered in conjunction
with the specific instances in October and November 2006, fail to rise to the level of
discriminatory conduct that has been found to constitute a hostile work environment. The
infrequency of the alleged discriminatory conduct strongly undercuts Hernandez’s claim of a
hostile work environment. Moreover, although Hernandez has identified comments that he
deemed offensive utterances, Hernandez has not identified any conduct that was physically
threatening or that objectively constitute racial epithets targeting his race or ethnicity. The
7
In his response brief, Hernandez also claims that he was harassed by co-workers other than Thompson.
This assertion is contradicted by Hernandez’s sworn deposition testimony, in which he testified that the
only District employee who discriminated against him was his supervisor, Thompson. Hernandez also
admitted in his response to Defendant’s statement of facts that Thompson was the only employee that
discriminated against him. Thus, the evidence fails to demonstrate that Hernandez’s co-workers
contributed to a hostile work environment.
12
specific incidents described by him in his complaint and his deposition occurred over the course
one month’s time, while his employment has lasted approximately 5 years.
In support of his harassment claim, Hernandez relies heavily on the case of Jean-Baptiste
v. K-Z, Inc., 442 F. Supp.2d 652 (N.D. Ind. 2006). The plaintiff in the Jean-Baptiste case was a
black Haitian who was hired by the defendant as a permanent employee in its lamination
department and then terminated 21 days after he was hired. Id. at 656. From the first day of his
employment, co-workers subjected the plaintiff to such conduct as passing wind in his face,
ordering him to “go home black man,” telling him “we don’t want you around here because
you’re black,” repeatedly hitting him, dropping work materials on him, and putting a finger in
plaintiff’s face while telling the plaintiff, “Black people so stupid, you can’t do your job.” Id. at
656. The plaintiff’s supervisor witnessed some of these incidents, but failed to take any action.
Whenever the plaintiff tried to complain to his supervisor, the supervisor ignored him. Id. at 656.
The defendant argued that it terminated the plaintiff’s employment due to his poor performance.
Id. at 658. However, on the day of his termination, the supervisor told the plaintiff that he was a
good employee but the company needed to make room for another employee who would be
returning from a disability leave. Id.
Hernandez compares his situation to the incidents experienced by the plaintiff in JeanBaptiste, but there simply is no comparison in light of the case law. In Jean Baptiste, the
plaintiff testified that his harassers “made derogatory remarks to him on each working day” of
his employment. Id. at 672. In contrast, Hernandez, who has worked for the District for four
and a half years, testified that all of the comments by Thompson that he deemed to be related to
his national origin were made on one day and during one conversation. In fact, Hernandez
testified, and his EEOC charge reflects, that after he made a complaint against Thompson in
13
November 2006, “the national origin discrimination ended.” See Hernandez Dep. at 25:8-20 and
Complaint Ex. 1. Hernandez also testified that after November 21, 2006, Hernandez received all
of his work assignments from the garage foreman. Furthermore, the plaintiff in Jean-Baptiste
testified that he felt physically threatened after having been hit several times, having work
material dropped on him and having a co-worker put his finger in his face and tell the plaintiff
that “Black people so stupid, you can’t do your job.” Id. at 656. There also was evidence in the
Jean-Baptiste case that employees told, and the supervisors tolerated, jokes based on race and
national origin such “black jokes” and “Mexican jokes.” Id. at 657. Here, there is no evidence
of that Hernandez was physically threatened, or even felt physically threatened, by Thompson or
his co-workers in the garage. Hernandez Dep. at 25:21-26:13.
In sum, because the incidents described by Plaintiff were sporadic, isolated, and, at worst,
rude and offensive, the Court cannot determine that Hernandez’s work environment rose to the
level of a hostile work environment. See Wyninger, 361 F.3d at 977; see Patton, 276 F.3d at 339
(rejecting hostile work environment claim even though plaintiff’s supervisors treated her rudely,
ignored her suggestions, failed to communicate changes at work, and severely criticized her
without good reason because “a reasonable jury could not have determined this treatment to be
so severe or pervasive as to alter the plaintiff’s conditions of employment in a significant way.”).
Summary judgment is appropriate on Plaintiff’s hostile work environment claim.
B.
Retaliation claim
In Count II of his complaint, Hernandez alleges that after he complained about
Thompson’s discriminatory treatment in November 2006, Thompson retaliated against him by
stating that he wanted Hernandez fired. In his response brief, Hernandez adds that Thompson
retaliated against him by issuing unwarranted disciplinary write-ups.
14
Under the anti-retaliation provision of Title VII, it is unlawful for an employer to
“discriminate against” an employee “because he has opposed any practice made an unlawful
employment practice” by the statute or “because he has made a charge, testified, assisted, or
participated in” a Title VII “investigation, proceeding, or hearing.” Brown, 499 F.3d at 684
(quoting 42 U.S.C. § 2000e-3(a)). “A plaintiff may prove retaliation by using either the direct
method or the indirect, burden-shifting method.” Tomanovich v. City of Indianapolis, 457 F.3d
656, 662 (7th Cir. 2006) (quotations and citations omitted). “Under the direct method, a plaintiff
must show that (1) he engaged in statutorily protected activity; (2) he suffered an adverse action
taken by the employer; and (3) there was a causal connection between the two.” Id. at 663
(quotations and citations omitted). Alternatively, under the indirect approach, in order to
establish a prima facie case for retaliation, the employee must show that (1) after filing a charge,
the employee was subject to adverse employment action; (2) at the time, the employee was
performing his job satisfactorily; and (3) no similarly situated employees who did not file a
charge were subjected to an adverse employment action. See Hudson v. Chicago Transit Auth.,
375 F.3d 552, 560 (7th Cir. 2004). “‘If the plaintiff establishes a prima facie case, the burden of
production shifts to the employer to present evidence of a non-discriminatory reason for its
employment action.’” Tomanovich, 457 F.3d at 663 (quoting Adusumilli v. City of Chicago, 164
F.3d 353, 362 (7th Cir. 1998)). Then, if the employer presents evidence of a non-discriminatory
reason for its employment action, “‘the burden shifts back to the plaintiff to demonstrate that the
employer’s reason is pre-textual.’” Id. (quoting Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 903
(7th Cir. 2005)).
Whether Hernandez chooses the direct or indirect method, he must establish that he
suffered a materially adverse employment action.
15
Adverse employment actions must be
“materially adverse” – a concept meaning more than a mere inconvenience or an alteration of job
responsibilities. Ribando v. United Airlines, Inc., 200 F. 3d 507, 510 (7th Cir. 1999). Actionable
retaliation involves employer conduct that would dissuade a reasonable worker from making or
supporting a charge of discrimination. Whittaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir.
2005). Examples of adverse employment actions include termination, demotion, decrease in
compensation, material loss of benefits, or significantly diminished material responsibilities.
Ribando, 200 F. 3d at 511.
Hernandez primarily argues that Thompson retaliated against him by issuing unwarranted
disciplinary write-ups. Unjustified disciplinary write-ups do not rise to the level of an adverse
employment action in the absence of evidence that these write-ups led to some identifiable job
action against Hernandez. The Seventh Circuit consistently has held that negative evaluations,
without more, do not constitute adverse employment actions. In Whittaker, the Court held,
“[w]hile [plaintiff’s] negative evaluation, written warnings, and placement on ‘proof status’ are
putatively disciplinary measures, none resulted in tangible job consequences and therefore are
not adverse employment actions actionable under Title VII.” Whittaker, 424 F. 3d at 648.
Similarly, in Beamon v. Marshal & Isley Trust Co., the plaintiff claimed that he was
discriminated against and retaliated against when he received “false” performance reviews. 411
F. 3d at 861-862. With respect to the plaintiff’s claim that he received false performance
reviews, the Seventh Circuit ruled that negative performance evaluations are not “considered to
be actionable adverse employment actions.” Id. at 862.
Here, Hernandez cannot establish that he suffered an adverse employment action on the
basis of disciplinary write-ups that he believed were unwarranted. In support of his claim,
Hernandez submitted six disciplinary action forms ranging from January 2007 to July 2008, three
16
of which were signed by Thomas Thompson. Yet none of the write-ups led to any tangible job
consequences. Hernandez remains employed by the District as a maintenance mechanic and
continues to work at the Central Garage maintaining the District’s fleet of trucks. He admits that
his salary has never been decreased, he has not lost any pay, and he has never lost any benefits as
a result of the disciplinary write-ups that he has received.
The remaining incidents that Hernandez identifies also do not constitute adverse
employment actions. Hernandez argues that: (1) he was required to look up the parts that he
needed to repair vehicles and had to request that the parts be ordered for him, as opposed to
being able to order the parts himself; (2) he was not allowed to enter the main office; and (3) his
work station was moved to the mechanic’s bay located directly in front of the main office. The
Seventh Circuit has held on many occasions that mere unhappiness and inconvenience do not
constitute adverse employment actions and are not actionable under Title VII. Haywood v.
Lucent Technologies, Inc., 323 F. 3d 524, 532 (7th Cir. 2003). In the same vein, the Supreme
Court stated that it is important to separate the “significant from trivial harms” in retaliation
cases. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). Title
VII’s anti-retaliation provision does not protect an individual from all retaliation, but only “from
retaliation that produces an injury or harm.”
Id. at 67.
“[N]ormally petty slights, minor
annoyances, and simple lack of good manners” will not dissuade “a reasonable worker from
making or supporting a charge of discrimination.” Id. at 68. The items above that Hernandez
complains about are, at most, trivial harms that would not dissuade a reasonable worker from
making or supporting a charge of discrimination. Indeed, the write-ups and incidents highlighted
by Hernandez have not stopped him from filing grievances: the record reflects that Hernandez
17
has submitted almost twice as many grievance forms than the number of write-ups that he has
received.
Finally, in addition to the fact that Hernandez cannot establish that he suffered an adverse
employment action, Hernandez failed to identify a similarly situated employee outside the
protected class who was treated more favorably than he was, which is required to prove his
claims using the indirect method.
Instead of identifying a similarly situated employee,
Hernandez argues that a question of fact exists regarding “if”—that is to say, whether—other
employees were subject to the same standards as Hernandez. Pl.’s Resp. at 10. At the summary
judgment stage, it is Hernandez’s responsibility to offer evidence to support his causes of action.
Hernandez cannot avoid summary judgment by suggesting that a question of fact may exist and
positing that evidence may support his claims. Rather, as the non-moving party, Hernandez must
present “evidence upon which the jury could find for [him].” Anderson v. Libby Lobby, Inc., 477
U.S. 242, 251 (1986); see Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997) (“[A] party will be
successful in opposing summary judgment only when they present definite, competent evidence
to rebut the motion.”)
One final point: the record reflects that Thompson told at least one person that he wanted
to fire Hernandez after Hernandez filed a grievance against him in November 2006. However,
the record is clear that Thompson failed to carry out this threat. “An unfulfilled threat, which
results in no material harm, is not materially adverse.” Ajayi v. Aramark Business Services, Inc.,
336 F.3d 520, 531 (7th Cir. 2003) (finding unfulfilled threat of demotion was not an adverse
action in discrimination case). If Thompson had carried through on his threat, this likely would
have been a different case.
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IV.
Conclusion
For the reasons stated above, the Court denies the District’s three motions to strike [82,
84, 86] and grants the District’s second motion for summary judgment [71]. Judgment is entered
in favor of Defendant District and against Plaintiff Hernandez.
Dated: September 21, 2011
______________________________
Robert M. Dow, Jr.
United States District Judge
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