Jones v. Park Forest Cooperative IV

Filing 101

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 8/19/2011. Mailed notice (cjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JUAN JONES,
Plaintiff,
v.
PARK FOREST COOPERATIVE IV,
an Illinois not-for-profit corporation,
Defendant.

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09 C 2653
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
Juan Jones (“Jones”) has sued his former employer, Park Forest Cooperative IV (“Park
Forest”), alleging that Park Forest: (1) discriminated against him in violation of 42 U.S.C. §
1981 on the basis of his race when it failed to promote him to a position on the maintenance
staff; (2) retaliated against him in violation of 42 U.S.C. § 1981 when it terminated him after he
complained of race discrimination to his immediate supervisor; and (3) retaliated against him in
violation of Illinois law when Park Forest terminated him after he complained and reported that
Park Forest failed to make required health insurance benefits payments. Before the Court are
Park Forest’s motion to deem admitted and strike plaintiff’s Local Rule 56.1 supplemental
statement in part and motion for summary judgment pursuant to Federal Rule of Civil Procedure
(“Rule”) 56. For the reasons provided herein, the Court denies the former motion as moot and
grants the latter motion.

I. Defendant’s Motion To Deem Admitted Its Statement of Facts and Strike Plaintiff’s
Supplemental Statement of Facts in Part
As a matter of course, the Court independently assesses whether the parties have
complied with Local Rule 56.1 and determines whether the particular portions of the record upon
which the parties rely are admissible. See, e.g., Sherden v. Cellular Advantage, Inc., No. 07 C
1006, 2009 WL 1607598, at *2 (N.D. Ill. June 9, 2009) (denying motion to strike portions of
movant’s Local Rule 56.1 statement of facts because the court would only consider admissible
evidence on summary judgment regardless).

However, after determining on its own whether

plaintiff has complied with Local Rule 56.1, the Court grants the motion to the extent that it
requests that the Court deem admitted Park Forest’s Local Rule 56.1 statement of facts for the
following reasons.
Summary judgment motions are governed by Rule 56 and Local Rule 56.1, both of which
this Court strictly enforces. See, e.g., Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th
Cir. 2008) (“District courts are entitled to strict compliance with Rule 56.1.” (quotations
omitted)). Local Rule 56.1 requires that the non-moving party respond to the moving party’s
statement of undisputed facts with numbered paragraphs, corresponding to and stating a concise
summary of the paragraph to which it is directed, and, in the event of any disagreement, with
specific references to affidavits, the record, or other supporting materials.

N.D. Ill. LR

56.1(b)(3). Failure to make a proper denial, such as a denial without a citation to the record or a
denial with a citation to an entire deposition transcript or lengthy exhibit, will result in the
improperly denied fact being deemed admitted. Id. 56.1(b)(3)(C); see Ammons v. Aramark
Uniform Servs., Inc., 368 F.3d 809, 818 (7th Cir. 2004) (“A court should not be expected to

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review a lengthy record for facts that a party could have easily identified with greater
particularity.”).
In this case, Jones failed to comply with the Local Rule 56.1 when he did not file any
numbered responses to the movant’s statement of facts as required by Local Rule 56.1(b)(3). As
a consequence of Jones’ non-compliance with Local Rule 56.1, the Court deems admitted all
properly cited facts contained in Park Forest’s Local Rule 56.1 statement of facts. See Zehrung
v. United Auto Workers Local 663, 269 Fed. Appx. 585, 587 (7th Cir. 2008) (holding district
court did not abuse discretion in deeming admitted movant’s Local Rule 56.1 statement of facts
when non-movant failed to provide a proper Local Rule 56.1 response).
Further, Park Forest also moves to strike portions of Jones’ supplemental statement of
facts because they have not been properly authenticated and are therefore hearsay. However,
even if Jones had provided proper authentication for the business records, the Court would still
grant summary judgment in defendant’s favor. Thus, to the extent that Park Forest’s motion
seeks to strike Plaintiff’s Group Exhibit A, Exhibit F, and Exhibit A-1, the Court denies the
motion as moot.

Facts1
Park Forest hired Juan Jones, an African-American male, on around June 7, 2004, for a
grounds staff position. (Def.’s LR 56.1(a)(3) Stmt. ¶ 6.) The grounds staff was part of the
maintenance department at Park Forest, which was divided between grounds staff and
maintenance staff. (Id. ¶ 13.) Within the maintenance department, a grounds staff position was
lower than a maintenance staff position. (Id. ¶ 14.) During the time period from August 11,
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Unless otherwise noted, the following facts are undisputed, admitted or deemed admitted under
Local Rule 56.1.
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2004 to December 27, 2005, Jones received four bonuses of $100.00 each for exemplary work
performance as a grounds staff member. (Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 3.)
From 2004 through 2006, Robert Ruiz was Jones’ immediate supervisor. (Id. ¶¶ 25, 37;
Second Am. Compl. ¶ 16.) Ruiz had knowledge of Jones’ maintenance skills and also provided
some maintenance skill training to Jones. (Def.’s LR 56.1(a)(3) Stmt. ¶¶ 15-16.)
As of December 8, 2006, Jodi Tas became property manager and supervised the entire
maintenance department, including Ruiz and Jones. (Def.’s LR 56.1(a)(3) Stmt. ¶ 10; Pl.’s LR
56.1(b)(3)(C) Stmt. ¶ 21.) Tas also supervised Sandy Isaac, Park Forest’s bookkeeper. (Pl.’s LR
56.1(b)(3)(C) Stmt. ¶ 15.) Isaac was responsible for paying the invoices for monthly premiums
for health and dental insurance for Park Forest employees, including Jones, at all relevant times
to this action, but she was not responsible for administration of the employee insurance plan,
which included Park Forest’s health reimbursement agreement. (Def.’s LR 56.1(a)(3) Stmt. ¶¶
21-22.) Instead, Employee Benefits Corporation (“EBC”) managed reimbursement for medical
and dental claims under Park Forest’s health reimbursement agreement. (Id. ¶ 25.) At all times,
Isaac timely paid all insurance premiums on behalf of Park Forest, and there were no lapses in
employee insurance coverage. (Id. ¶ 26.)
Steve Lundy (“Lundy”) was Park Forest’s insurance broker and the EBC health
reimbursement agreement representative. (Id. ¶ 37; Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 23.) On
December 12, 2006, Lundy held an open meeting at Tas’ office to discuss the employee health
insurance plan with Park Forest employees. (Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 23.) Jones attended
this meeting and complained to Lundy that his Park Forest insurance was not covering his bills.
(Def.’s Ex. B, Jones Dep. at 127.) Lundy responded the next day, December 13, 2006, via letter,
advising Jones that he was eligible for a $2,000.00 reimbursement and requesting that he

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complete certain necessary forms to obtain his refund. (Def.’s LR 56.1(a)(3) Stmt. ¶ 40; Def.’s
Ex. B, Jones Dep. Ex. 7, Letter from Lundy to Jones of 12/13/06.)
Throughout 2006, Jones received various warnings and negative evaluations from Park
Forest. On August 15, 2006, Jones received a “Step-by-Step Employee Warning Report” for
substandard work quality and insubordination. (Def.’s Ex. F, Isaac Aff. ¶ 7; id., Ex. Step-ByStep Employee Warning Report.) On October 21, 2006, Jones received a written warning that he
had failed to produce proof of motor vehicle insurance, which was required because he drove a
Park Forest vehicle. (Def.’s LR 56.1(a)(3) Stmt. ¶¶ 30-31.) In fact, Jones admitted that he had
failed to maintain motor vehicle insurance yet continued to operate a Park Forest motor vehicle.
(Def.’s Ex. B, Jones Dep. at 100.) On November 7, 2006, Jones received a memo advising him
that he had utilized all of his sick days for the year and admonishing him about his history of
coming to work late. (Def.’s LR 56.1(a)(3) Stmt. ¶ 32.) He was further warned about using Park
Forest cell phones for personal calls. (Id.) Jones admitted that he used more sick days than
permitted by Park Forest in 2006. (Def.’s Ex. B, Jones Dep. at 146.) After Tas was promoted to
property manager in December 2006, Jones received another “Step-by-Step Employee Warning
Report” for violating Park Forest’s requirement that he maintain motor vehicle insurance, as well
as for unsatisfactory behavior toward another employee. (Def.’s LR 56.1(a)(3) Stmt. ¶ 35.)
Jones was suspended from December 12 to 15, 2006, and Tas told Jones that if he did not return
to work on December 15 with a valid, current insurance card, he would be terminated. (Id. ¶ 36;
Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 28.) On December 15, 2006, Tas prepared and issued to Jones an
“unsatisfactory” Annual Performance Appraisal, indicating that Jones needed to show more
respect to his co-workers. (Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 30.)

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Between December 15, 2006, the date on which Jones returned from being suspended,
and January 2, 2007, he applied for a vacant maintenance staff position at Park Forest. (Id. ¶ 31;
Def.’s LR 56.1(a)(3) Stmt. ¶ 40.) The maintenance staff position would have been a promotion
for Jones. (Def.’s LR 56.1(a)(3) Stmt. ¶ 43.) However, Ruiz did not believe Jones was qualified
for the maintenance staff position, and Ruiz recommended that Tas not hire Jones for the
position. (Id. ¶¶ 45-46.) Instead, Ruiz recommended James Walsh, a white male, for the
maintenance staff position, because he believed Walsh to be a more qualified candidate. (Id. ¶
48.) The job description for the Park Forest maintenance staff position gave preference to
candidates with course work in maintenance and grounds-related information and two years of
experience in a housing, or housing and grounds, maintenance position. (Pl.’s LR 56.1(b)(3)(C)
Stmt. ¶ 35.) At the time of Walsh’s application, Walsh had three months of experience in
maintenance and no relevant certifications or diplomas. (Id. ¶¶ 34, 36.)
On January 2, 2007, Tas interviewed Jones for the maintenance staff position, but she did
not select him for the position. (Id. ¶ 33.) She wrote a note summarizing the interview that said,
in part: “To me, Juan is not satisfactorily completing his duties as a groundskeeper thus I am
compelled not to promote him.” (Id.) She also relied on the recommendation of Ruiz that Jones
was not qualified. (Def.’s LR 56.1(a)(3) Stmt. ¶ 47.) The maintenance staff position remained
vacant until Park Forest hired Walsh for the position on February 9, 2007.

(Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 34.)
Jones continued to receive verbal warnings at Park Forest for sub-standard job
performance between April 1 and May 7, 2007. (Def.’s LR 56.1(a)(3) Stmt. ¶ 49.) On May 8,
2007, Park Forest Board members during an executive session meeting reviewed Jones’ job
performance and found it unsatisfactory. (Id. ¶ 50.) On May 18, 2007, Jones met with Tas and

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Ruiz in Tas’ office to discuss Jones’ job performance. (Id. ¶ 51.) Park Forest contends that Jones
voluntarily quit that day, a fact that is deemed admitted by Jones’ failure to comply with Local
Rule 56.1. (Id. ¶ 52.) Jones contends Tas terminated him, which is likewise deemed admitted
by Park Forest’s failure to comply with Local Rule 56.1.2 (Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 39.)
Because disputed facts are taken in the light most favorable to the non-moving party on
summary judgment, the Court assumes for the purposes of the instant motion that Jones was
terminated on May 18, 2007.

Discussion
“The court shall grant summary judgment if 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). To support whether a fact is genuinely disputed, a party must either “(A) cit[e]
to particular parts of materials in the record, including depositions, . . . affidavits or declarations,
stipulations . . . , admissions, interrogatory answers, or other materials; or (B) show[] that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” Id. 56(c)(1).
Moreover, the court “construe[s] all facts and draw[s] all inferences in the light most
favorable to the non-moving party.” Srail v. Vill. of Lisle, 588 F.3d 940, 943 (7th Cir. 2009).
“The existence of merely a scintilla of evidence in support of the non-moving party’s position is
insufficient; there must be evidence on which the jury could reasonably find for the non-moving

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The moving party must properly deny the non-moving party’s LR 56.1 statement of additional
facts in the same manner that the non-moving party must deny the moving party’s statement of
facts, lest those additional facts be deemed admitted. See N.D. Ill. LR 56.1(a).
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party.” Delta Consulting Group, Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir.
2009).

I.

§ 1981 Race Discrimination
A § 1981 claim for race discrimination may be proceed by direct or indirect methods of

proof, under the analytical framework that applies to Title VII claims. O’Neal v. City of New
Albany, 293 F.3d 998, 1003 (7th Cir. 2002); Sublett v. John Wiley & Sons, Inc., 463 F.3d 731,
736 (7th Cir. 2006) (stating that § 1981 and Title VII discrimination methods of proof are
“essentially identical”). Here, Jones proceeds under the indirect, burden-shifting method of
proof set out in McDonnell Douglas, which requires him to establish a prima facie case of race
discrimination by showing that: “(1) [he] is a member of a protected class; (2) [he] is qualified
for the position; (3) [he] was rejected for the position; and (4) the position was given to someone
outside the protected class who was similarly or less qualified than [he].” Hobbs v. City of Chi.,
573 F.3d 454, 460 n.1 (7th Cir. 2009); Jackson v. City of Chi., 552 F.3d 619, 622 (7th Cir. 2009).
Satisfying all four prongs of the prima facie case “shifts the burden to the defendant ‘to produce
a legitimate, noninvidious reason for its actions.’” Id. (quoting Atanus v. Perry, 520 F.3d 662,
672 (7th Cir. 2008)). “If the defendant rebuts the prima facie case, the burden then shifts back to
the plaintiff to show that the reasons proffered by the defendant are merely pretextual.” Id.; see
Atanus, 529 F.3d at 672.
“Pretext is . . . a lie, specifically a phony reason from some action.” O’Neal, 293 F.3d at
1005 (quotation omitted). Jones “may establish pretext with evidence that the defendant[] w[as]
more likely than not motivated by a discriminatory reason or that [its] explanations are not
worthy of credence, i.e., they are factually baseless, did not actually motivate the defendant[], or
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were insufficient to motivate the adverse employment action.” Id. A court does not sit as
superpersonnel department reviewing a business’s employment decisions. Blise v. Antaramian,
409 F.3d 861, 867 (7th Cir. 2005).
In this case, Jones has failed to create a genuine issue of material fact regarding whether
he was qualified for the position and whether Park Forest’s rationale for selecting another
candidate was a pretext. Because the two issues are so closely related, the Court addresses them
together.
Park Forest hired Walsh for the maintenance staff position because Tas believed Jones’
unsatisfactory performance on the grounds staff made him a less qualified candidate than Walsh.
Jones offers no evidence to contradict that, from August 15, 2006 until his application and
interview for the maintenance staff position in January 2007, he was performing his job
unsatisfactorily. Jones received notice on October 21, 2006 that he needed to produce a motor
vehicle insurance card. Jones admits that he drove a motor vehicle, against company policy and
in violation of Illinois law, without carrying insurance. He admits that he took more sick days
than was allotted by company policy in 2006. He was warned for using company cell phones to
make personal calls.

He received a written report about substandard work quality and

insubordination. After Tas was promoted to property manager, she issued an ultimatum to
Jones: produce a motor vehicle insurance card by the end of a three-day suspension on
December 15 or be terminated. Presumably, Jones did so, as he was not terminated upon return
to work. Tas also filled out an annual appraisal for Jones in December, marking his performance
as unsatisfactory. These facts have been deemed admitted by Jones’ failure to comply with
Local Rule 56.1, and Jones offers no fact to contradict them in his statement of additional facts.

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Furthermore, Tas relied in part on the recommendation of Ruiz in selecting Walsh for the
position, and Jones does not claim that Ruiz held any racial animus against him. Given the
overwhelming and undisputed facts in the record regarding Jones’ substandard performance, the
Court holds that Jones has established neither the element of his prima facie case that requires
him to show that he was qualified for the maintenance staff position nor pretext. Showing up to
work and adhering to one’s employer’s policies are basic qualifications that Jones admits he
lacked. See, e.g., Contreras v. Suncast Corp., 237 F.3d 756, (7th Cir. 2001) (stating that
attendance and adherence to company policies are legitimate expectations). Further, he has not
provided any evidence that Walsh had a history of attendance problems or failing to adhere to
his employer’s policies.

That Walsh’s application showed he had only three months of

maintenance experience on his employment application and did not have certificates or diplomas
in carpentry, plumbing, or electrical work is insufficient to create a triable issue as to whether
Tas honestly believed Walsh was a better candidate for the position than Jones. These two facts
do not speak to Tas’ interview with Walsh, and merely address how his written application
measured against the job description. Nor do they speak to Ruiz’s recommendation of Walsh
over Jones to Tas based on his knowledge of the two candidates. Therefore, Jones has failed to
create a genuine issue whether Tas was compelled by Jones’ track record as a groundskeeper to
seek another applicant for the maintenance staff position or whether Tas believed that Walsh was
more qualified. Because Jones has failed to create a triable issue as to whether he was qualified
for the position for purposes of making out a prima facie case and as to whether Park Forest’s
reasons for selecting Walsh over him were a pretext, Jones’ claim for race discrimination fails as
a matter of law.

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II.

§ 1981 Retaliation
Jones alleges that he suffered a retaliatory discharge by Park Forest after Tas found out

he complained to Ruiz that Tas did not promote him to the maintenance staff because of
discrimination. § 1981 retaliation claims are analyzed the same way as Title VII retaliation
claims:
There are two distinct ways in which a plaintiff may establish a prima facie
case for unlawful retaliation. First, the plaintiff may present direct evidence
(evidence that establishes without resort to inference from circumstantial
evidence) that [she] engaged in protected activity (filing a charge of
discrimination) and as a result suffered the adverse employment action
of which [she] complains. . . . Second, the plaintiff may proceed under
a framework similar to the McDonnell Douglas burden-shifting test by
showing that: 1) after lodging a complaint about discrimination, 2)
only [she], and not any otherwise similarly situated employees who
did not complain, was 3) subjected to an adverse employment action
even though 4) [she] was performing her job in a satisfactory manner.
Sublett, 463 F.3d at 740 (citations and quotations omitted); see Humphries v. CBOCS West, Inc.,
474 F.3d 387, 399, 404 (7th Cir. 2007).
However, under either method, Jones’ claim fails because there is no evidence that he
engaged in a protected activity during his employment at Park Forest or complained of
discrimination. Jones claims that he complained to Ruiz that Tas discriminated against him
because of his race when she failed to promote him to the maintenance staff.

(Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 37.) However, the evidence he cites does not support that claim. Rather, it
shows that Jones asked Ruiz why Ruiz had not been promoted, which, as Ruiz explained, was
because he declined the promotion. (See Ruiz Dep. at 28-30.) Without evidence of Jones’
complaining, the retaliation claim must fail. Moreover, Jones cannot satisfy the fourth prong of
his prima facie case of retaliation, i.e., that he was performing his job as groundskeeper in a
satisfactory manner. He was not performing his job satisfactorily from August 2006 to January

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2007 for the reasons cited above pertaining to his § 1981 discrimination claims, and he further
received verbal warnings for poor performance from April to May 2007 and an unsatisfactory
review from an executive meeting in May 2007, the month he was terminated.3 Jones has not
presented any evidence that he was performing his job to the satisfaction of his employer from
January to May 2007. Thus, Jones has failed to create a genuine issue as to a material fact
regarding retaliation under either the direct or indirect method.

III.

Retaliation Under Illinois Law
Jones alleges under Illinois common law that he was discharged in retaliation of

whistleblowing activities, i.e., complaining to Tas that Park Forest had not properly paid
required health insurance benefit payments. (Second Am. Compl. ¶ 60.) In Illinois, an employer
can terminate an at-will employee “for any reason or no reason.” Turner v. Mem’l Med. Ctr.,
911 N.E.2d 369, 374 (Ill. 2009); accord Barr v. Kelso-Burnett Co., 478 N.E.2d 1354, 1356 (Ill.
1985). The tort of retaliatory discharge provides “a limited exception to this rule.” Buckner v.
Atl. Plant Maint., Inc., 694 N.E.2d 565, 568 (Ill. 1998).

To state a claim for retaliatory

discharge, “an employee must show that he was dismissed in retaliation for his activities, and
that the dismissal was in contravention of a clearly mandated public policy.” Fellhauer v. City
of Geneva, 568 N.E.2d 870, 875 (Ill. 1991); Palmateer v. Int’l Harvester Co., 421 N.E.2d 876,
878 (Ill. 1981).
The Court has already determined that reporting a company, in contravention of 820 Ill.
Comp. Stat. 160/1, for failure to pay insurance premiums in a timely manner, or give the

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These facts are, again, deemed admitted because of Jones’ failure to comply with Local Rule 56.1. The
Court admonishes litigants to consult the local rules to avoid unnecessarily endangering their case on
summary judgment.

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employee thirty days’ written notice that benefits will no longer be paid, is sufficient to state a
claim for common law retaliatory discharge under Illinois law. Jones v. Park Forest Coop. IV,
No. 09 C 2953, 2010 WL 748147, at *4 (N.D. Ill. Feb. 26, 2010). However, there is no dispute
that Park Forest timely paid them. Rather, Jones complained about Park Forest’s failure to
reimburse his bills under the employee insurance policy, which is not conduct proscribed under
the statute. See 820 Ill. Comp. Stat. 160/1 (2010) (“Any employer who promises in writing to
make payments to an employee welfare plan . . . health plan, dental plan . . . .”) (emphasis
added). Thus, without the threat of criminal sanctions under the statute, Park Forest could not
have retaliated against Jones in contravention of public policy. See Jones, 2010 WL 748147, at
*4. (“The Act’s criminal sanctions mean that an individual who reports a violation is the ‘citizen
crime-fighter’ contemplated by Palmateer.”); see also Palmateer, 421 N.E.2d at 879-80.
Moreover, as to the causation element of retaliatory discharge, “the ultimate issue is the
employer’s motive:

If the employer has a valid nonpretextual basis for discharging the

employee, the employee loses.” Mertes v. Westfield Ford, 220 F. Supp. 2d 904, 913 (N.D. Ill.
2002) (applying Illinois law); accord Zuccolo v. Hannah Marine Corp., 900 N.E.2d 353, 359
(Ill. App. Ct. 2008). For the reasons discussed above, the Court holds that Jones has failed to
create a triable issue as to whether he was performing his job to the satisfaction of Park Forest.
Further, the Court holds that no reasonable jury could find Park Forest liable based solely on the
temporal relationship between his complaint and his termination because six months elapsed
between the date of his complaint on approximately December 13, 2006 and the date of his
termination on May 18, 2007. Cf. Zuccolo, 900 N.E.2d at 360 (the relatively short time span of
less than one month contributed genuine issue of fact as to employer’s true intent). For these
reasons, Jones’ state law retaliatory discharge cause of action fails as a matter of law.

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Conclusion
For the foregoing reasons, the Court grants in part and denies as moot in part Park
Forest’s motion to deem admitted its statement of facts and strike plaintiff's supplemental
statement of facts in part [doc. no. 90] and grants Park Forest’s motion for summary judgment
[doc. no. 78]. This case is hereby terminated.
SO ORDERED

ENTERED:

August 19, 2011
_____________________________
HON. RONALD A. GUZMAN
United States District Judge

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