Flores-Gomez v. Levy Restaurants
Filing
99
MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 6/19/2012.Mailed notice.(jlj)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSE M. FLORES GOMEZ,
Plaintiff,
vs.
RESTAURANT ONE LIMITED PARTNERSHIP d/b/a
Spiaggia Restaurant and Café,
Defendant.
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Judge Feinerman
MEMORANDUM OPINION AND ORDER
Plaintiff Jose M. Flores Gomez brought this action against his employer, Resaturant One
Limited Partnership (“Spiaggia”), alleging race discrimination retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The
amended complaint claims that Flores (1) was subjected to race discrimination and (2) was fired
in retaliation for complaining about race discrimination and for participating in a factfinding
investigation concerning a discrimination lawsuit brought by another Spiaggia employee.
Spiaggia has moved for summary judgment under Federal Rule of Civil Procedure 56. Summary
judgment is granted on the race discrimination claim, which Flores declines to defend.
Summary judgment is denied as to the retaliation claim.
Background
The facts are stated as favorably to Flores as the record and Local Rule 56.1 permit.
Flores worked as a formaggaio (cheese steward) at Spiaggia. On July 11, 2008, he served about
25-30 ounces of wine pours to guests at a particular table. Flores told the table’s server not to
charge for the wine; Flores looked for but could not find a manager to provide authorization for
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the free pours. Chad Bertelsman, a senior dining room manager, was informed of the
unauthorized pours, reviewed Flores’s disciplinary history, and then emailed Jason Goldsmith,
Spiaggia’s general manager, about the incident. The email recommended that Flores receive at
least a two-week suspension, but indicated that Bertelsman would not oppose termination:
“What course of action do you think is appropriate? I think at least a 2 week suspension. I
would not be opposed to termination.” Doc. 67-6 at 38. Goldsmith met with other supervisors,
reviewed Flores’s file, and decided to terminate Flores. In so doing, Goldsmith relied on the
information he received from Bertelsman. Doc. 75 at ¶ 34. The termination occurred in July
2008.
Flores contends that Bertelsman’s email, which commenced the chain of events that led
to his termination, was an act of retaliation for two actions Flores took at Spiaggia. The first
occurred in January 2008, when Flores participated in an investigation by Spiaggia regarding a
race discrimination lawsuit suit filed by Kathleen Taylor, a former African-American employee.
Taylor was terminated after a customer complained to Bertelsman that Taylor had accused the
customer of stealing wine. Flores met with Spiaggia’s counsel for almost an hour on January 8,
2008; during the interview, Flores told counsel that Bertelsman and Taylor did not like each
other, that Bertelsman had a temper, that Bertelsman treated Taylor in an unfair, rude, and
condescending manner, and that Flores found Bertelsman to be “unfair and discriminatory at
times in his treatment of employees.” Doc. 72 at ¶ 59. After the interview concluded,
Bertelsman immediately approached Flores and asked him questions about what he said to the
attorney and why the meeting took so long. Doc. 75 at ¶¶ 8-9. Flores tried to evade the
questions, saying that he told the attorney about the incident concerning the guest’s complaint
about Taylor. Doc. 72 at ¶ 60. Flores then noticed a change in Bertelsman’s behavior toward
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him; while Bertelsman previously had been friendly towards Flores and spoke to him nicely,
Bertelsman became rude, condescending, critical, and cold. Doc. 75 at ¶ 11. The Taylor case
was settled in March 2008, about two months after Spiaggia’s counsel interviewed Flores;
Bertelsman was informed of the settlement. Id. at ¶¶ 12-13.
The second action occurred on June 8, 2008, when Flores complained to Bertelsman that
another employee made racially insensitive comments about African Americans. Bertelsman
terminated that employee on June 14, 2008.
Discussion
Title VII prohibits an employer from discriminating against an employee who “opposed
any practice” prohibited by Title VII or who “made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e-3(a).
Title VII’s “antiretaliation provision seeks to prevent employer interference with ‘unfettered
access’ to Title VII’s remedial mechanisms … by prohibiting employer actions that are likely ‘to
deter victims of discrimination from complaining to the EEOC,’ the courts, and their
employers.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation
omitted) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). Section 1981
“encompasses retaliation claims.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009); see
also CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2009). The same standards govern
retaliation claims under both provisions. See O’Leary v. Accretive Health, Inc., 657 F.3d 625,
630-31 (7th Cir. 2011); Stephens, 569 F.3d at 786.
Flores may forestall summary judgment on his retaliation claims through the direct or
indirect methods of proof. See Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir. 2012); Turner
v. The Saloon, Ltd., 595 F.3d 679, 687-88 (7th Cir. 2010). Flores pursues only the direct
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method. Doc. 71 at 4. Under that method, Flores “must present evidence of (1) a statutorily
protected activity; (2) a materially adverse action taken by the employer; and (3) a causal
connection between the two.” Turner, 595 F.3d at 687 (internal quotation marks omitted); see
also Coleman, 667 F.3d at 859. Spiaggia concedes that there was an adverse employment
action, see Lapka v. Chertoff, 517 F.3d 974, 985-86 (7th Cir. 2008) (termination is a materially
adverse action sufficient to support a retaliation claim), but disputes the other two elements,
which are considered in turn.
A.
Statutorily Protected Activity
As noted above, Flores’ first allegedly protected activity was speaking with the Spiaggia
lawyer who was investigating Taylor’s race discrimination suit. Participating in a “purely
internal investigation”—meaning an investigation conducted where no formal charge of
discrimination has been made to “an official body authorized to enforce Title VII,” such as the
EEOC or a court—is not a statutorily protected activity. Hatmaker v. Mem’l Med. Ctr., 619 F.3d
741, 747 (7th Cir. 2010); see also Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 49 (2d Cir.
2012). The Seventh Circuit has taken “no position” on the question posed here, which is
“whether participation in an internal investigation begun after a charge is filed with the EEOC
should be treated as participation in the official investigation.” Hatmaker, 619 F.3d at 747. The
Sixth and Eleventh Circuits have answered that question in the affirmative. See Abbott v. Crown
Motor Co., 348 F.3d 537, 543 (6th Cir. 2003) (“we hold that Title VII protects an employee’s
participation in an employer’s internal investigation into allegations of unlawful discrimination
where that investigation occurs pursuant to a pending EEOC charge”); Clover v. Total Sys.
Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999) (“we recognize that, at least where an
employer conducts its investigation in response to a notice of charge of discrimination, and is
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thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of
its investigation, the employee’s participation is participation ‘in any manner’ in the EEOC
investigation”). The Eighth Circuit noted in dicta its “likely” agreement with the Sixth and
Eleventh Circuits. Gilooly v. Mo. Dep’t of Health and Senior Servs., 421 F.3d 734, 744 n.4 (8th
Cir. 2005).
With no circuits taking the contrary view, and because the Sixth and Eleventh Circuits’
decisions appear persuasive, the court concludes that participating in an internal investigation
commenced in response to an EEOC charge or Title VII lawsuit is a statutorily protected
activity. See Andrews v. Chevy Chase Bank, 545 F.3d 570, 576 (7th Cir. 2008) (“we note that
creating a circuit split generally requires quite solid justification; we do not lightly conclude that
our sister circuits are wrong”). Here, Flores spoke with Spiaggia’s lawyer after a race
discrimination lawsuit had been filed against Spiaggia. Because this qualifies as a statutorily
protected activity, there is no need to address whether Flores’ second action, his complaint to
Bertelsman about another employee’s racially derogatory remark, also qualifies as a protected
activity.
B.
Causation
To satisfy the causation element of his retaliation claim, Flores must show that his
statutorily protected activity was “a substantial or motivating factor” in Spiaggia’s decision to
fire him. Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 675 (7th Cir. 2011).
Causation may be shown by direct evidence, which “entail[s] something akin to an admission by
the employer (‘I’m firing you because you had the nerve to accuse me of sex discrimination!’).”
Coleman, 667 F.3d at 860; see also Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th Cir.
2009). Causation also may be shown “by presenting a ‘convincing mosaic’ of circumstantial
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evidence that would permit the same inference [of retaliation] without the employer’s
admission.” Coleman, 667 F.3d at 860 (some internal quotation marks omitted). Pertinent
circumstantial evidence consists of (1) “suspicious timing, ambiguous statements oral or written,
behavior toward or comments directed at other employees in the protected group, and other bits
and pieces from which an inference of [retaliatory] intent might be drawn,” (2) “evidence
showing that the employer systematically treated other, similarly situated … employees better,”
or (3) “evidence that … the employer’s justification [for the adverse action] is pretextual.”
Silverman v. Bd. of Educ. of City of Chi., 637 F.3d 729, 734 (7th Cir. 2011) (internal quotation
marks omitted); see also Coleman, 667 F.3d at 860. “Each type of evidence [direct and
circumstantial] is sufficient by itself (depending of course on its strength in relation to whatever
other evidence is in the case) to support a judgment for the plaintiff; or they can be used
together.” Coleman, 667 F.3d at 860. The appropriate focus “is not whether the evidence
offered is direct or circumstantial but rather whether the evidence points directly to a
discriminatory reason for the employer’s action.” Atanus v. Perry, 520 F.3d 662, 671 (7th Cir.
2008) (internal quotation marks omitted); see also Davis v. Time Warner Cable of Se. Wis., L.P.,
651 F.3d 664, 672 (7th Cir. 2011).
As a preliminary matter, it must be noted that Flores proceeds under the “cat’s paw”
theory, which holds that “if a supervisor performs an act motivated by [impermissible] animus
that is intended by the supervisor to cause an adverse employment action, and if that act is a
proximate cause of the ultimate employment action, then the employer is liable.” Staub v.
Proctor Hosp., 131 S. Ct. 1186, 1194 (2011) (footnote omitted). Flores argues that Bertelsman
had a retaliatory motive arising from his desire to punish Flores for complaining about
Bertelsman to Spiaggia’s lawyer, and that Goldsmith was “the unwitting manager or supervisor
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who is persuaded to act based on another’s illegal bias.” Schandelmeier-Bartels v. Chi. Park
Dist., 634 F.3d 372, 379 (7th Cir. 2011); see also Cook v. IPC Int’l Corp., 673 F.3d 625, 628
(7th Cir. 2012) (“In employment discrimination law the ‘cat's paw’ metaphor refers to a situation
in which an employee is fired or subjected to some other adverse employment action by a
supervisor who himself has no discriminatory motive, but who has been manipulated by a
subordinate who does have such a motive and intended to bring about the adverse employment
action.”). To demonstrate causation under the cat’s paw theory, Flores need only show “some
direct relation between the injury asserted and the injurious conduct alleged.” Staub, 131 S. Ct.
at 1192.
Here, Bertelsman’s email to Goldsmith describing the July 2008 complimentary wine
pour incident suggested at least a two-week suspension but also directly raised the possibility of
termination (“I would not be opposed to termination”). Goldsmith relied on Bertelsman’s email
in determining what action to take against Flores. Accordingly, even if Goldsmith exercised
some independent judgment in deciding to terminate Flores, it cannot be said that there is no
“direct relation” between Flores’s termination and Bertelsman’s advocacy of disciplinary action,
up to and including termination, against Flores. See id. at 1192-93 (“An employer’s authority to
reward, punish, or dismiss is often allocated among multiple agents. The one who makes the
ultimate decision does so on the basis of performance assessments by other supervisors.”); Hicks
v. Forest Preserve Dist. of Cook Cnty., 677 F.3d 781, 790 (7th Cir. 2012) (holding that the “cat’s
paw” theory applied where the decisionmaker relied upon a disciplinary complaint submitted by
a supervisor who bore animus against the plaintiff); Bobo v. United Parcel Serv., Inc., 665 F.3d
741, 755-56 (6th Cir. 2012) (same).
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Having established this component of the “cat’s paw” theory, Flores still must adduced
evidence sufficient for a jury to find that Bertelsman’s email to Goldsmith was the causal result
of Flores’ termination. Spiaggia claims that Bertelsman had no basis to know that Flores had
made negative comments about him during the interview with Spiaggia’s counsel, in that neither
Flores nor the attorney nor anyone else told Bertelsman anything about what Flores told counsel.
Doc. 72 at ¶ 60. Flores responds that Bertelsman inferred that Flores spoke unfavorably of
Bertelsman. Bertelsman confronted Flores after the interview, and although Flores told
Bertelsman that he simply told the attorney about the customer incident that resulted in Taylor’s
firing, Bertelsman thereafter acted in a rude, cold, and increasingly critical manner with Flores.
A jury could infer from the sudden change in Bertelsman’s behavior that Bertelsman either
inferred or learned from another source that Flores told the attorney that Bertelsman had engaged
in discriminatory workplace behavior.
Spiaggia argues that the lengthy interval between the January 2008 interview and Flores’
July 2008 termination defeats causation. But the lapse of time between protected activity and an
adverse action has never been “dispositive in proving or disproving a causal link” between an
employee’s participation in a protected activity and a subsequent adverse employment action.
Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 728 (7th Cir. 2003). As the Seventh Circuit has
cautioned: “A mechanistically applied time frame would ill serve our obligation to be faithful to
the legislative purpose of Title VII. The facts and circumstances of each case necessarily must
be evaluated to determine whether an interval is too long to permit a jury to determine rationally
that an adverse employment action is linked to an employee's earlier complaint.” Oest v. Ill.
Dep’t of Corr., 240 F.3d 605, 616 (7th Cir. 2001). Here, there is sufficient evidence in the
record—including Bertelsman’s concern about what Flores said to counsel, Bertelsman’s
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knowledge that Spiaggia settled the Taylor case shortly after Flores spoke with counsel, and the
change in Bertelsman’s attitude towards Flores—to allow a jury to conclude that Bertelsman
knew or inferred that Flores had commented unfavorably to Spiaggia’s counsel about
Bertelsman’s workplace behavior, and that Bertelsman thereafter nursed a grudge against Flores
and waited for just the right opportunity to retaliate. See Hicks, 677 F.3d at 789 (“While close
timing between a plaintiff engaging in a protected activity and then suffering an adverse
employment action is useful evidence to establish a causal link between the two events, the law
does not require there to be close timing where, as here, direct evidence is used to establish
causation.”); Coleman, 667 F.3d at 861 (“Our cases reject any bright-line numeric rule, but when
there is corroborating evidence of retaliatory motive, as there is here, an interval of a few weeks
or even months may provide probative evidence of the required causal nexus.”); McKenzie v. Ill.
Dep’t of Transp., 92 F.3d 473, 485 (7th Cir. 1996) (citing cases for the proposition that
retaliation claims can proceed despite a year-long interval between the protected conduct and the
retaliation where there were “additional circumstances [that] raised suspicion about the
legitimacy of the employer’s acts”); Komal v. Arthur J. Gallagher & Co., __ F. Supp. 2d __,
2011 WL 2415725, at *6 (N.D. Ill. June 13, 2011).
Once a plaintiff adduces evidence sufficient to permit a jury to infer a discriminatory
motive for an adverse employment action under the direct method, “the defendant’s summary
judgment motion necessarily must fail.” Silverman, 637 F.3d at 734 n.3. This is not to say that
Flores will prevail at trial. Unlike the court on a summary judgment motion, the jury will have
no obligation to resolve all disputed material facts in Flores’ favor. The record contains
evidence of multiple previous disciplinary infractions by Flores. The jury may believe
Bertelsman that he did not know that Flores told Spiaggia’s lawyer that Bertelsman engaged in
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discriminatory behavior. There are other grounds on which Spiaggia may prevail. The only
holding here is that Flores put forth evidence sufficient to prevent this matter from being
resolved on summary judgment.
Conclusion
For the foregoing reasons, Spiaggia’s summary judgment motion is granted as to the
discrimination claim and denied as to the retaliation claim. This case will proceed to trial on the
retaliation claim on October 1, 2012.
June 19, 2012
United States District Judge
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