Diaz v. Elgin School District #U-46
Filing
81
MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 9/22/2011:Mailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Saul Diaz,
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Plaintiff,
v.
Elgin School District #U-46,
Defendant.
No. 09 C 01649
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Saul Diaz filed this lawsuit against his former employer, Elgin School
District U-46, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000 et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Family and Medical
Leave Act, 29 U.S.C. § 2061 et seq. (FMLA), and the Americans with Disabilities Act,
42 U.S.C. § 12101 et. seq. (ADA). Diaz claims that he was disciplined and eventually
terminated based on his natural origin, disability, and exercise of his FMLA rights.
The School District has moved for summary judgment. R. 52.1 For the reasons stated
below, the motion is denied in part and granted in part.
I.
Saul Diaz was hired by the School District in September 1998. R. 55 ¶ 9. During
his employment, Diaz held the positions of relief custodian, head custodian, and “night
1
Citation to the docket is “R.” followed by the entry number and, when necessary, the
page/paragraph number.
1
lead.” Id. ¶ 11. In 2001, Diaz’s manager, Manuel Figueroa, was replaced by Cathy
McNamara, who would become his new boss. Id. ¶¶ 10, 11, 14.
Throughout his employment, Diaz had work performance issues. At Diaz’s first
job (which was “relief custodian”), a number of managers, administrators, and coworkers complained about his work performance. Id. ¶ 12. For example, in March
2000, Figueroa (Diaz’s then-manager) suspended Diaz without pay for five days based
on several concerns, including “[d]efacing” various documents belonging to the head
custodian and poor work performance. Id. ¶ 13; R. 56, Exh. 31.
At his second job, as head custodian at Sunnydale Elementary School, the
principal complained to McNamara (his then-manager) about Diaz’s performance. R.
55 ¶ 17. The following year, McNamara received another set of complaints from the
next principal of the school. Id. ¶ 18. McNamara decided to move Diaz to Larkin High
School, where he was placed as the “Night Lead” because this position required less
personal interaction. Id. ¶ 20.
Yet the complaints still persisted. Bob Adamik, the head custodian at Larkin,
complained that Diaz was not following instructions or completing assignments. Id. ¶
27. On November 1, 2007, McNamara met with both Diaz and Adamik, and following
the meeting, it was agreed that Diaz’s cleaning duties would be reduced by half so that
he could have more time to complete maintenance and other assignments. Id.
According to Diaz, a “racist and discriminatory culture exposed itself” during this time.
R. 58 at 2. Diaz was referred to as “spic” and “wetback,” and Adamik allegedly said
2
that he loved firing Mexicans and that he would create a paper trail to get Diaz fired.
R. 59 ¶ 9.
On November 28, 2007, Larkin High School Assistant Principal Lori Rollins sent
an e-mail to McNamara regarding Diaz’s repeated failure to respond to walkie-talkie
calls and to the public address system. R. 55 ¶ 28. On that particular day, Rollins was
unable to locate Diaz, and after she finally did, she had to remind him about
responding to radio calls for assistance. Id. Diaz also failed to properly set up rooms for
events, to carry his radio, and to answer calls. Id. ¶ 29.
Around a week later, on December 5, Diaz met with McNamara and union
steward Mitch Cain to discuss these issues, and a month later, Diaz received a written
warning. Id. ¶ 29. In January 2008, Diaz filed a discrimination charge with the EEOC
based on this written warning. R.1, Exh. A at 2-3.
In February 2008, Rollins sent McNamara another e-mail, detailing additional
concerns about Diaz’s performance. R. 55 ¶ 31. On February 4, Diaz was late in
addressing a problem relating to the fire alarm, causing the building to be without firealarm protection overnight. Id. ¶ 32. On February 25, various school employees
reported that school doors had been left open overnight. Id. ¶ 33. On February 27, Diaz
failed to complete a set-up in the cafeteria for an important recognition breakfast. Id.
¶ 34. Shortly afterwards, McNamara, Cain, and Rollins met with Diaz, and on March
31, Diaz was suspended without pay for five days. Id. ¶ 37. Diaz then filed a second
EEOC charge, based on this suspension. R.1, Exh. A at 3-4.
3
On April 28, 2008, Diaz went on approved FMLA leave for complications due to
his diabetes. R. 55 ¶ 41; R. 1 ¶¶ 32-34. He was scheduled to return from leave on May
22, 2008. Id. A week before he was scheduled to return, however, McNamara requested
to meet with Diaz to address certain problems with his job performance. Id. ¶ 42. On
May 22, the day he returned from leave, Diaz learned that he was being suspended
without pay for ten days. Id. ¶ 44. Diaz complained to McNamara that “this is not fair
. . . I’ve been harassed.” R. 58, Exh. G1 at 77. According to Diaz, McNamara then said,
“spic, nothing’s going to happen after this.” Id. Diaz contends that she then went on to
say that “go[ing] to court” would not matter because the School District had “plenty of
money” and “good attorneys.” Id.
Diaz also had a run-in with Adamik, the school’s head custodian. It occurred
during the afternoon of June 17, 2008. R. 55 ¶ 47. As McNamara walked into the room,
she witnessed Diaz standing over Adamik (who was sitting in a chair) while shouting
at Adamik. Id. ¶ 48. Diaz’s arm was behind him and McNamara thought Diaz was
about to punch Adamik. Id. As soon as Diaz saw McNamara, he immediately left the
scene. Id. Following the incident, McNamara told both Diaz and Adamik to give her
statements describing what happened. Id. ¶ 49. Adamik wrote a report, saying that he
believed Diaz was going to hit him. Id. ¶ 51. Joseph Ruiz, a witness to the incident,
corroborated Adamik’s account. Id. ¶ 52. Diaz, however, failed to submit a statement.
Id. ¶ 53. Afterwards, McNamara, along with other administrators, recommended to the
Board of Education that Diaz be fired. Id. ¶ 53.
4
On June 23, a termination hearing was held, and Diaz presented a statement
describing his perspective on the altercation. Id. ¶ 54. McNamara was unmoved by his
statement and continued to recommend termination. Id. A month later, after reviewing
Diaz’s entire file, the Board of Education approved Diaz’s termination. Id. ¶ 57. Diaz
filed an administrative grievance, which was reviewed by the Board of Education and
denied. Id. ¶¶ 59-60.
On December 18, 2008, the EEOC issued Diaz two right-to-sue letters based on
the charges he filed earlier that year. R.1, Exh. B. Three months later, Diaz filed a
nine-count complaint alleging violations of Title VII, Section 1981, the Americans with
Disabilities Act, and the Family Medical Leave Act. R.1. The School District moved for
summary judgment, R.52, and the matter is now fully briefed before this court.
II.
Summary judgment must be granted when “the movant shows 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(a). A genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining summary
judgment motions, “facts must be viewed in the light most favorable to the nonmoving
party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372,
380 (2007). The party seeking summary judgment has the burden of establishing the
lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
5
(1986). After “a properly supported motion for summary judgment is made, the adverse
party ‘must set forth specific facts showing that there is a genuine issue for trial.’ ”
Anderson, 477 U.S. at 255 (quoting Fed R. Civ. P. 56(e)).
III.
Generally, a Title VII plaintiff may bring only those claims that were included
in the EEOC charge. Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 501 (7th
Cir.1994). A plaintiff may also bring a claim that is “like or reasonably related to the
allegations of the charge and growing out of such allegations.” Moore v. Vital Products
Inc., 641 F.3d 253, 256-57 (7th Cir. 2011) (citing Jenkins v. Blue Cross Mut. Hosp. Ins.,
538 F.2d 164, 167 (7th Cir. 1976)) The Seventh Circuit has held that this standard is
met “if there is a reasonable relationship between the allegations in the charge and the
claims in the complaint, and the claim in the complaint can reasonably be expected to
grow out of an EEOC investigation of the allegations in the charge.” Cheek, 31 F.3d at
501. The purpose of this rule is to allow the EEOC and the employer to
settle the dispute through conference, conciliation, and persuasion, and
. . . [to] giv[e] the employer some warning of the conduct about which the
employee is aggrieved.
Id. at 500 (citations omitted). “Although the rule is not jurisdictional, it is a condition
precedent with which Title VII plaintiffs must comply. For allowing a complaint to
encompass allegations outside the ambit of the predicate EEOC charge would frustrate
the EEOC’s investigatory and conciliatory role, as well as deprive the charged party
of notice of the charge.” Id.
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Because the EEOC charge is often completed by laypersons rather than
lawyers,“a Title VII plaintiff need not allege in an EEOC charge each and every fact
that combines to form the basis of each claim in her complaint.” Id. Diaz filed two
EEOC charges: (1) in January 2008, alleging national origin and ADA discrimination
for a warning he received from his supervisor; and (2) in April 2008, alleging
retaliation based on a five-day suspension. Diaz may proceed on all claims relating to
these two charges. But the question is whether any additional claims may proceed,
specifically, those claims that are based on facts not specifically alleged in the EEOC
charges. This is an important question because the bulk of any damages would arise
from Diaz’s firing and hostile work environment claims, rather than from a warning
or a five-day suspension.
Plaintiffs may proceed on claims that are not included in an EEOC charge if the
proposed claims are “like or reasonably related” to those contained in the EEOC
charge. Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009). “[C]laims are
not alike or reasonably related unless there is a factual relationship between them.
This means that the EEOC charge and the complaint must, at minimum, describe the
same conduct and implicate the same individuals.” Cheek, 31 F.3d at 501 (emphasis
added). As described below, Diaz’s Title VII and Section 1981 counts include (1) hostile
work environment / harassment claims and (2) discriminatory discharge claims that
involve facts not alleged in the EEOC charges.
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A.
Hostile Work Environment & Harassment
Diaz’s hostile work environment claims are based on two facts: (1) the frequent
use of racial epithets and discriminatory statements by his co-workers Bob Adamik and
Joe Creadon; and (2) McNamara’s failure to act after she learned of Bob Adamik's
offensive behavior. R. 59 ¶¶ 9-13, 18. Diaz argues that because there is a genuine issue
of fact over whether there was a hostile work environment, this Court cannot grant the
School District’s motion for summary judgment. R. 58 at 14-15. But this argument does
not address the threshold issue of whether a hostile work environment claim can be
brought at all. The presence of a genuine issue of fact is relevant only after Plaintiff
has established that he met the EEOC-charge requirement. To do that here, the Court
asks whether the facts underlying the hostile work environment claims are reasonably
related to those in the EEOC charges.
The EEOC charges mention neither Adamik nor Creadon, so any claims based
on their alleged conduct cannot proceed because the same individuals are not
implicated. The EEOC charges do contain allegations against McNamara, but the
charges do not describe the same or related conduct. R.1, Exh. A at 2-5. The first EEOC
charge alleged that McNamara treated Diaz and Rob Schweig – a similarly situated
employee who ostensibly also had work performance issues – differently because only
Diaz received a written warning. R.1, Exh. A at 2-3. In the second EEOC charge, Diaz
alleged that a five-day suspension imposed by McNamara was in retaliation against
him for filing the first EEOC charge. Id. at 4-5.
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In contrast, the hostile work environment claims deal with McNamara’s failure
to address Adamik’s offensive behavior. This accusation – the failure of supervisor to
address the discriminatory behavior of a subordinate – is not the same conduct as
treating subordinate employees differently. Nor is it the same conduct as retaliating
against an employee for filing an EEOC charge.
The “reasonably related” exception2 was created to allow plaintiffs to pursue
claims without succumbing to “procedural technicalities.” McKenzie v. Illinois Dept. of
Transportation, 92 F.3d 473, 482 (7th Cir. 1996). But in this case, the EEOC never had
a chance to examine McNamara’s alleged failure to address a subordinate’s racially
offensive behavior. Nor did the EEOC have the chance to investigate the racially
offensive remarks allegedly made by Adamik and Creadon. Under these circumstances,
failing to alert the EEOC of these allegations is not a mere overlooked procedural
technicality, but rather undermined the EEOC-charge requirement. Accordingly, Diaz
cannot proceed on his hostile work environment and harassment claims.
B.
Discriminatory Discharge
The School District also argues that Diaz cannot proceed on any of his discharge
claims (besides those based on the FMLA) because they do not involve the same
conduct or individuals contained in the EEOC charge. R. 54 at 8. Diaz counters with
two arguments. First, he argues that there is a genuine issue of fact over whether his
2
Perhaps more precisely, the “reasonably related” doctrine is not an ‘exception’ to the
EEOC-charge requirement as much as it is an interpretation of what claims should be
considered as falling within a filed charge.
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firing was discriminatory or retaliatory. R. 58 at 14-15. This argument again is not
responsive to the EEOC-charge requirement argument. Second, Diaz argues that the
underlying facts – namely, the decision to fire him – are reasonably related to those
contained in the EEOC charges. R. 58 at 4.
Diaz cites Long v. American Medical Association, 2004 WL 1088229, at *8 (N.D.
Ill. May 14, 2004), for the proposition that an allegation of discrimination contained
in an EEOC charge is reasonably related to a termination claim. R.58 at 4-5. But the
facts there are not analogous. It is true that, in Long, the plaintiff filed a lawsuit
alleging discriminatory discharge without a corresponding EEOC charge. Long, 2004
WL 108829, at *3. But there the plaintiff filed numerous EEOC charges, including a
charge that her termination was due to retaliation. The court in Long found that the
retaliation charge and the discriminatory firing charge were related because
the complaint of race discrimination in her termination implicates the
same actors (primarily Payerli, but also Rhodes, Evans, and Musacchio)
and the same conduct (termination) as the retaliation claim in her EEOC
charge.
Id. at *8 (emphasis added). There, the EEOC had an opportunity to investigate the
termination allegations, and the employer received notice of the plaintiff’s termination
claims. Not so here. The only claims for which the School District received notice were
the claims relating to the warning and the suspension – not the firing. To be sure, the
EEOC charges and the termination claims involve the same supervisor (McNamara)
and the warning and suspension might have contributed to Diaz’s firing, but the June
2008 altercation also played a key role in the decision to terminate. R. 55 ¶ 53. That
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altercation directly involved Bob Adamik, who, as discussed earlier, was not mentioned
in the EEOC charges at all. Because the facts in the EEOC charges and the
discriminatory firing claims involve different conduct and different individuals, they
are not reasonably related. Therefore, Diaz cannot move forward on those claims.
IV.
The Court will now address the discrimination and retaliation claims, limited
to the warning and five-day suspension. Generally, the same principles apply to race
discrimination claims under Title VII as under 42 U.S.C. § 1981. Swearnigen–El v.
Cook County Sheriff’s Dep’t, 602 F.3d 852, 860 n. 6 (7th Cir.2010); Humphries v.
CBOCS West, Inc., 474 F.3d 387, 403-04 (7th Cir.2007); Davis v. Wis. Dep’t of
Corrections, 445 F.3d 971, 976 (7th Cir.2006). Because the liability standards under
Title VII and Section 1981 are the same, the Court will group together the discussion
of Diaz’s race discrimination claims under both statutes. See Herron v.
DaimlerChrysler, 388 F.3d 293, 298 (7th Cir. 2004).
A.
Race Discrimination
1.
Indirect Method
To avoid summary judgment on his race discrimination claim, Diaz may use
either the direct method or indirect method of proof pursuant to the familiar
McDonnell-Douglas framework. See Naik v. Boehringer Ingelheim Pharm., 627 F.3d
596, 599 (7th Cir. 2010); Egonmwan v. Cook County Sheriff’s Dep’t, 602 F.3d 845, 84950 (7th Cir. 2010). Under the indirect method, Diaz must first show that (1) he is a
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member of a protected class; (2) his job performance met the School District’s
legitimate expectations; (3) he suffered an adverse employment action; and (4) the
School District treated similarly situated individuals outside of his protected class
more favorably. Egonmwan, 602 F.3d at 850; Swearnigen–El, 602 F.3d at 860. If Diaz
establishes these four prima facie elements of race discrimination, the burden then
shifts to the School District to offer a legitimate, nondiscriminatory reason for the
adverse employment action. Naik, 627 F.3d at 600. If the School District meets this
burden, Diaz must demonstrate that the proffered reasons are pretext for
discrimination. Egonmwan, 602 F.3d at 850.
The parties do not dispute that Diaz was a member of a protected class or that
he suffered an adverse employment decision. The School District argues, however, that
Diaz’s job performance did not meet legitimate expectations. Indeed, the record is filled
with examples of Diaz’s poor work performance. He failed to secure doors, left the
school grounds during his workday, failed to set up for events, and failed to fix the fire
alarm. R. 55 ¶¶ 32-40. Diaz counters by arguing that he was given a promotion to
Night Lead, which suggests that he was an exemplary employee. R. 58 at 13. Diaz also
points out that McNamara “felt that he was competent, trustworthy, reliable, and fully
capable of handling a much more difficult job than his prior job.” Id. Diaz also cites, as
proof of his good work performance, a job offer he was given by McNamara during the
spring of 2008, shortly before he was fired. Id.
But the evidentiary record, even when viewed in Diaz’s favor, does not support
his contentions. First, Diaz received the job offer in the spring of 2008 not because he
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was a strong employee but because he had complained about his job dissatisfaction at
Larkin High School. R. 55 ¶ 46. Second, Diaz became Night Lead at Larkin because he
was transferred from his previous position due to numerous complaints by the school’s
principal. Id. ¶ 17. Third, McNamara’s comments that Diaz was a capable employee
were made before he was transferred to Larkin High School, and thus have little
bearing on his job performance while at Larkin. R. 58, Exh. A at 188. Fourth, Diaz’s
contention that he performed well at his job is refuted by the warning and two
suspensions he received that reflected serious work-related deficiencies. Therefore,
Diaz has not shown that he was meeting the School District’s legitimate expectations.
Nor does Diaz have sufficient evidence, even when viewed in the light most
favorable to him, that a similarly situated employee was treated better than he was.
Diaz presents Robert Schweig, the head custodian of Larkin High School. R. 59 ¶ 15.
According to Diaz, Schweig – a Caucasian male – failed to fix a bathroom that was in
disrepair, yet Schweig escaped any formal complaints, warnings, suspension, or other
discipline. R. 59 ¶¶ 16-17. But Diaz overlooks the fact that his own transgressions were
far more serious than failing to fix a bathroom. Not only did Diaz fail to properly
respond to calls, carry his radio, or perform certain setups, he failed to secure the
school building’s door on more than one occasion. R. 55 ¶¶ 33, 38. Such failure created
a serious security risk for the school. Putting student safety at risk is not comparable
to failing to clean a bathroom. Diaz has not presented evidence indicating that Schweig
committed any similarly grievous errors with regard to his job duties. Thus, Schweig
is not a similarly situated employee.
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But there still remains the direct method of proof. Under the direct method, a
plaintiff must present direct or circumstantial evidence that creates a “convincing
mosaic of discrimination” on the basis of race. Winsley v. Cook County, 563 F.3d 598,
604 (7th Cir. 2009) (citing Troupe v. May Dep’t Stores, 20 F.3d 734, 737 (7th Cir. 1994).
Diaz presents several pieces of evidence: first, Creadon and Adamik allegedly made a
number of racially offensive comments. R. 59 ¶¶ 12-13 . Second, Adamik singled out
Diaz by keeping a log of his mistakes in order to get him fired. Id. ¶ 14. But
discrimination by his co-workers do not, by themselves, have any bearing on whether
racial animus motivated McNamara in issuing the warning or the suspension. Thus,
these two examples cannot be part of a “convincing mosaic of discrimination.”3
With regard to McNamara, Diaz first avers that McNamara suspended him after
the altercation with Bob Adamik without hearing his side of the story. R. 59 ¶ 30. Diaz
also avers that McNamara misrepresented the reasons why Diaz was fired. Id. at 1112. These two facts have little relevance, however, because they relate to Diaz’s firing
and not the written warning or the suspension.
Diaz also accuses McNamara of engaging in discrimination when she failed to
issue him a performance evaluation in January 2008. Id. at 9-10. Typically, employees
are given reviews once a year, in order to let employees “know what they are doing well
and what needed to be improved upon.” R. 59 ¶ 19. According to McNamara, the reason
3
Diaz also presents evidence that McNamara treated him differently than Schweig. But
as the Court has explained under the indirect method analysis, Schweig is not a comparable
employee because his job performance issues were not as serious as Diaz’s, even when the
record is viewed in Diaz’s favor.
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why Diaz was not given a performance review in January 2008 was because a month
before that, Diaz had received a number of disciplinary warnings for failure to perform
his duties. R. 55 ¶¶ 29-30. Because Diaz and his supervisors had just discussed his
performance issues, reasoned McNamara, another performance review would be
redundant. Id. ¶ 30. Diaz offers no evidence to rebut the genuineness of this
explanation.
But there is one final piece of evidence that does qualify as direct evidence of
race discrimination. Diaz asserts that McNamara harbored racial animus based on a
comment made on or around May 22, 2008. As Diaz was walking out of the room
following a disciplinary hearing, he complained to McNamara about harassment. R.
58-8 at 77. According to Diaz, McNamara said that “go[ing] to court” “didn’t matter”
because the School District had “plenty of money” and “good attorneys.” Id. Diaz
contends that McNamara also said, “spic, nothing’s going to happen after this.” Id. If
believed by a jury, the racial epithet and the context of the racially-charged remark
provide direct evidence of race discrimination.
To avoid that evidence, the School District argues that McNamara’s alleged bias
is irrelevant because she did not exert singular influence over the Board of Education,
which approved the decision to fire Diaz. R. 54 at 10. But there are two problems with
that argument. First is that the Board does not appear to be involved in the decision
to impose the warning and the suspension. Second is that, since the filing of the
summary-judgment motion, the Supreme Court decided Staub v. Proctor Hospital, 562
U.S. __, No. 09-400 (March 1, 2011). In Staub, the Court held that if a biased
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supervisor (1) takes a step that is done for a biased reason, (2) intending to get the
employee fired, demoted, or otherwise penalized, and (3) that step is found to be the
proximate cause of the eventual firing, the employer will be held liable. Slip op. at 10.
A jury could find that McNamara took a step that proximately caused the warning and
suspension because she reviewed Diaz's performance issues before he received
discipline.4 R.55 ¶¶ 29, 36-37. In a supplemental memorandum, the School District
presents three unpersuasive reasons to distinguish Staub . R. 68, Exh. 1 at 5-7.
First, the School District argues that, unlike Staub, the facts underlying Diaz’s
firing are verifiable by third-party witnesses. Id. at 5. But that difference does not
affect Staub’s holding that a biased supervisor can still infect the unbiased
decisionmaker’s decision with racial animus. Second, the School District argues that
here, the decisionmakers conducted an independent investigation, and thus, removed
any traces of discrimination by McNamara. Id. at 6. But Staub specifically explained
that an independent investigation does not necessarily have preclusive effect, because
the “supervisor’s biased report may remain a causal factor if the independent
investigation takes it into account . . . .” Staub, slip op. at 8-9. Third, the School
District argues that there is evidence that McNamara did not engage in discrimination.
R. 68, Exh. 1 at 6-7. But this does not affect Staub’s ultimate holding: an employer is
4
The School District has filed a motion for leave to file an additional memorandum
based on the Seventh Circuit’s recent decision in Dickerson v. Board of Trustees of Community
College District No. 522, et al., No. 10-3381 (7th Cir. Sept. 16, 2011). R.77. That motion is
granted. But for the reasons stated in the text, the evidentiary record shows that there is a
genuine issue of fact over whether McNamara proximately caused Diaz’s discipline.
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liable for a biased supervisor’s actions if that biased action is found to be the proximate
cause of the firing. Staub’s holding establishes that McNamara’s bias can be imputed
to the School District. Therefore, if Diaz’s allegation is true, McNamara’s use of the
term “spic” is evidence against the School District.
Because the evidence counts against the School District, the question is whether
a solitary instance of a supervisor using a racial slur is sufficient to demonstrate race
discrimination. There cannot be a bright-line answer to the question, because the
answer is dependent on the particular facts. For example, in an unpublished opinion,
the Seventh Circuit held that a single racist remark by a supervisor – that she wanted
to “fire that nigger today” – was not enough to overcome summary judgment. Nelson
v. United Parcel Service, 337 Fed. Appx. 561, 563 (7th Cir. 2009). The Court explained
that the comment was made after the firing in question and was the only evidence in
the entire record of any racism.5 Id.
Other cases conclude that a single incident where a supervisor utters a racial
epithet may be enough to create a genuine issue on the question of discriminatory
intent. E.g., Agbejimi v. Advocate Health and Hospitals Co., 2009 WL 2589129, at *6
(N.D. Ill. Aug. 19, 2009). In Agbejimi, the plaintiff learned that her supervisor said she
5
The court also explained that a supervisor’s racial animus could not be imputed to the
employer. Nelson, 337 Fed. Appx. at 563 (“The comment, though reprehensible if indeed it was
made, proves only that Krause referred to Nelson using a racist epithet and that she
personally harbored racial animus; it does not alone prove that UPS terminated Nelson
because of his race.”) Nelson, however, was decided two years before Staub v. Proctor Hospital,
562 U.S. __, No. 09-400 (March 1, 2011). As described previously, there are circumstances in
which a supervisor’s racial animus can be imputed to the ultimate decisionmaker. Supra.
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was “trying to fire the niggers.” Id. at *2. The court rejected the employers argument
that an isolated remark is not enough to overcome summary judgment, explaining that
“if a jury determined Plaintiff’s testimony was truthful, they could reasonably
conclude, based on that testimony, that Defendant had fired Plaintiff because of her
race.” Id. at *6. And other cases have also concluded that isolated comments may
constitute direct evidence of discrimination if they are contemporaneous with an
adverse employment decision.6 E.g., Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7th
Cir. 1999).
To be sure, McNamara’s alleged racial slur came in May 2008, one month after
the April 2008 suspension and four months after the January 2008 warnings. But that
does not mean that the remark is unrelated to the discrimination claims. The racial
epithet and the comment that “we have plenty of money and we have good attorneys”
came immediately after Diaz’s disciplinary hearing for his suspension. McNamara’s use
of a racially-offensive word at a time when Diaz was being disciplined in the
employment context – even if spoken after the decisions were made – is still relevant
to prove that her prior employment decisions were motivated by racial animus. Her
statement cannot simply be dismissed as irrelevant. Therefore, Diaz has established
enough direct evidence of discrimination to overcome summary judgment. Of course,
6
Other circuits are mixed in their treatment of racial epithets. The Ninth Circuit has
held that an incident where a supervisor laughs in response to a racial epithet was enough to
constitute direct evidence of racial discrimination. Chuang v. University of California Davis,
225 F.3d 1115, 1128 (9th Cir. 2000). On the other hand, the Eleventh Circuit has held that a
“supervisor’s use of a racial epithet does not constitute direct evidence of discrimination.”
Williamson v. Adventist Health System, 372 Fed. Appx. 936, 940 (11th Cir. 2010).
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at this stage, the Court must accept Diaz’s contention that McNamara used the racial
slur as described by Diaz – in order for Diaz to ultimately prevail, a jury must still
conclude, after a trial, that the statement was made, that the statement proves that
the suspension was motivated by discrimination, and that the School District would
not have taken the same adverse action even absent McNamara’s allegedly
discriminatory motivation.
B.
Retaliation
Title VII also forbids retaliation against anyone who “‘has opposed any practice
made an unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.’” Loudermilk v. Best Pallet Co., 636 F.3d
312, 314 (7th Cir.2011) (quoting 42 U.S.C. § 2000e–3(a)). A plaintiff may establish her
retaliation claim under the direct or indirect method of proof. See Weber v. Universities
Research Ass’n, Inc., 621 F.3d 589, 592 (7th Cir.2010).
“To avoid summary judgment under the direct method of proof for proving
retaliation, a plaintiff must show: (1) that he engaged in a statutorily protected
activity; (2) that he suffered a materially adverse action by her employer; and (3) there
was a causal link between the two.” Silverman v. Board of Educ. of City of Chicago, 637
F.3d 729, 740 (7th Cir. 2011); see also Leitgen v. Franciscan Skemp Healthcare, Inc.,
630 F.3d 668, 673 (7th Cir. 2011). There is no dispute that Diaz engaged in protected
activity when he filed the EEOC charge or that he suffered a materially adverse action
when he was suspended by the School District. But Diaz does not meet the third
19
requirement; he presents no evidence showing a causal link between the charge and
his suspension. Diaz’s must resort to the indirect method.
Under the indirect method of proof, two of four elements are the same as the
direct-method elements: (1) he engaged in a statutorily protected activity and (2) he
suffered an adverse action. See Silverman, 637 F.3d at 742. The parties do not dispute
that Diaz satisfies these two elements. The indirect method of proof also requires Diaz
to show that he met the School District’s legitimate job expectations and that it treated
him less favorably than similarly situated employees who did not engage in the
statutorily protected activity. See id.; Hill v. Potter, 625 F.3d 998, 1001 (7th Cir.2010).
As he did for the Title VII claim, Diaz argues that he had strong work performance and
also presents a single comparator, Robert Schweig. For the same reasons discussed in
rejecting the indirect method for his Title VII claim, supra, this evidence is insufficient
to establish a prima facie case on the retaliation claims.
C.
ADA Discrimination
Diaz also alleges that the School District discriminated against him based on his
disability – diabetes. To survive summary judgment, a plaintiff must produce sufficient
evidence for a reasonable trier of fact to find that (1) he was disabled within the
meaning of the ADA, (2) that he is qualified to perform the essential functions of the
job, either with or without a reasonable accommodation, and that (3) he suffered from
an adverse employment action because of his disability. Nese v. Julian Nordic Const.
20
Co., 405 F.3d 638, 641 (7th Cir.2005) (citing Byrne v. Board of Educ., School of West
Allis–West Milwaukee, 979 F.2d 560 (7th Cir.1992)).
A plaintiff can show that he is disabled through one of three ways: (1) he has a
physical or mental impairment that substantially limits him in one or more major life
activities; (2) he has a record of such an impairment; or (3) his employer regarded him
as having such an impairment. Nese, 405 F.3d at 641 (citing 42 U.S .C. § 12102(2)).
Diaz has not alleged that he has an actual disability and has not provided any records
of impairment, so this Court will determine whether he was “regarded as” having a
disability.7
Under a “regarded as” claim, a plaintiff must prove that either: (1) the employer
mistakenly believes the employee has a physical impairment that substantially limits
a major life activity; or (2) the employer mistakenly believes that an actual, nonlimiting impairment substantially limits a major life activity. Amadio v. Ford Motor
Co., 238 F.3d 919, 925 (7th Cir.2001) (citing Sutton v. United Air Lines, Inc., 527 U.S.
471, 489 (1999)); see also 29 C.F.R. § 1630.2(1). In other words, the employer “must
believe either that one has a substantially limiting impairment that one does not have
or that one has a substantially limiting impairment when, in fact, the impairment is
7
The School District correctly points out that Type 2 diabetes is not a per se disability
and that in order to show actual disability, Diaz must present specific evidence that the
diabetes prevented him from performing major daily activities. R.54 at 13 n.8 (citing Scheerer
v. Potter, 443 F.3d 916, 919-20 (7th Cir. 2006)). Diaz does not address this argument in his
response brief.
21
not so limiting.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999); see also
Peters v. City of Mauston, 311 F.3d 835 (7th Cir.2002).
The School District argues that no employee or supervisor ever commented on
Diaz’s diabetes, and thus, Diaz could not have been regarded as being disabled. R. 54
at 13 n. 8. Diaz does not respond to this argument; in fact, he does not even mention
diabetes in his response motion [[brief?]]. R. 58. Because the record reflects no
evidence of any employee of the School District remarking or commenting on Diaz’s
diabetes, the Court concludes that there is no genuine issue: Diaz was not regarded as
being disabled. Therefore, the Court grants the School District’s motion with regard
to the ADA claims.
D.
FMLA
Lastly, Diaz alleges that he was fired by the School District in retaliation for
exercising his FMLA rights. To succeed on a FMLA retaliation claim, “the plaintiff does
not need to prove that retaliation was the only reason for her termination; she may
establish an FMLA retaliation claim by showing that the protected conduct was a
substantial or motivating factor in the employer's decision.” Goelzer v. Sheboygan
County, Wis., 604 F.3d 987, 995 (7th Cir.2010) (quotation and citation omitted). As
with FMLA interference claims, a plaintiff alleging a FMLA retaliation claim must
establish that she was eligible for FMLA leave in the first instance. See Daugherty v.
Wabash Ctr., Inc., 577 F.3d 747, 750 (7th Cir.2009) (“To show a violation of FMLA
rights, plaintiffs must show that they are eligible for FMLA protection”); see also Long
22
v. Teachers’ Ret. Sys. of Ill., 585 F.3d 344, 350 (7th Cir.2009) ( “An employer cannot
retaliate if there is nothing for it to retaliate against.”) (citation omitted). The parties
do not dispute whether Diaz was eligible for FMLA leave, so the Court will only
address whether the FMLA leave was a motivating factor in the School District’s
decision to fire Diaz.
“An employee who alleges that her employer retaliated against her for exercising
her rights under the FMLA can proceed under the direct or indirect methods of proof
familiar from employment discrimination litigation.” The Hope School, 560 F.3d at 702;
Daugherty, 577 F.3d at 751. Because Diaz cannot present a case under the indirect
method for the same reasons the indirect method did not support the Title VII and
ADA claims, this Court will examine the direct method.8
Under the direct method, the plaintiff “can survive summary judgment by
‘creating a triable issue of whether the adverse employment action of which she
complains had a discriminatory motivation.’” Lewis v. School Dist. # 70, 523 F.3d 730,
741 (7th Cir. 2008) (quoting Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 721 (7th
Cir. 2005)). A plaintiff may prevail under the direct method “by ‘constructing a
convincing mosaic of circumstantial evidence that allows a jury to infer intentional
8
Under the indirect method, a plaintiff “must demonstrate: (1) he engaged in
statutorily protected activity; (2) he met his employer's legitimate expectations; (3) he suffered
an adverse employment action; and (4) he was treated less favorably than similarly situated
employees who did not engage in statutorily protected activity.” Cracco, 559 F.3d at 634-35;
Simpson, 559 F.3d at 718. Diaz has not presented any comparator evidence with regard to the
FMLA claim. If a plaintiff does not identify a similarly-situated employee whom the defendant
treated more favorably, he must proceed under the direct method. Burnett v. LFW Inc., 472
F.3d 471, 482 (7th Cir.2006).
23
discrimination by the decisionmaker.’” Cole v. Illinois, 562 F.3d 812, 815 (7th Cir.
2009) (quoting Ridings v. Riverside Med. Ctr., 537 F.3d 755, 771 (7th Cir. 2008)); see
also Cracco v. Vitran Express, Inc., 559 F.3d 625, 633 (7th Cir. 2009) ( “Under the direct
method, ‘proof of discrimination is not limited to near-admissions by the employer that
its decisions were based on a proscribed criterion,’ but rather, includes ‘circumstantial
evidence which suggests discrimination albeit through a longer chain of
inferences.’”(citation omitted)) “The ‘convincing mosaic’ standard is simply shorthand
for the requirement that [a plaintiff] must present circumstantial evidence that, when
considered together, would permit a jury to believe that the defendants retaliated
against her for exercising her FMLA rights.” Cole, 562 F.3d at 815 n.2. “Circumstantial
evidence may include suspicious timing, ambiguous oral or written statements, or
behavior toward or comments directed at other employees in the protected group.”
Long, 585 F.3d at 350.
Diaz’s allegation of FMLA retaliation rests on two events. First, Diaz was called
in to work, on May 15, 2008, during his FMLA leave. R. 59 ¶ 24. Second, immediately
upon returning to work a week later, Diaz was suspended. Id. ¶ 25. According to Diaz,
these two events show that he was retaliated against for exercising his right to FMLA
leave.
But Diaz fails to present evidence rebutting McNamara’s explanation that Diaz
was called back in to work during his leave because his supervisor wanted to discuss
his failure to lock the school doors in April 2008. DSOF ¶ 42. McNamara stated that
24
the reason why she called Diaz in during his leave was in order to prevent too much
time from elapsing without giving Diaz a chance to respond to the charges. Id.
Eventually, this security breach (the failure to lock the doors) led to his suspension.
And although Diaz was suspended the day after he returned from leave, “mere
temporal proximity is not enough to establish a genuine issue of material fact.”
Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th Cir.2004). There is an
absence of evidence that any of his coworkers or supervisors ever disparaged him for
taking FMLA leave. In fact, there is no indication that anyone ever reacted negatively
in any way about Diaz’s use of FMLA leave. Therefore, summary judgment must be
granted on the FMLA claim.
V.
For the reasons stated above, Defendant’s motion for summary judgment [R. 52]
is granted as to Counts 2, 3, 4, 5, 6, 7, 8, and 9, and denied as to Count 1 against School
District U-46. Defendant’s motion to supplement [R. 77] is granted as noted in footnote
4, supra. The status hearing of October 4, 2011, will remain as scheduled. The parties
should be prepared to address a trial schedule, or alternatively, whether a settlement
conference would be appropriate.
ENTERED:
___________________________
Honorable Edmond E. Chang
DATE: September 22, 2011
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