Lalowski v. Corithian Schools Inc. et al

Filing 65

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 1/26/2012:Mailed notice(wp, ) (Main Document 65 replaced on 1/26/2012) (wp, ).

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

DANIEL LALOWSKI,
Plaintiff,
Case No. 10 C 1928
v.
Hon. Harry D. Leinenweber
CORINTHIAN SCHOOLS, INC. and
CORINTHIAN COLLEGES, INC.
(a.k.a. EVEREST COLLEGE),
Defendants.

MEMORANDUM OPINION AND ORDER
Before

the

Court

is

a

Motion

for

Summary

Judgment

by

Defendants Corinthian Schools, Inc. and Corinthian Colleges, Inc.
(hereinafter, collectively, the “Defendants”).

For the reasons

stated herein, the Court grants summary judgment to Defendants as
to Plaintiff’s Title VII retaliation claim and Title IX claim for
punitive damages, but denies summary judgment as to Plaintiff’s
Title IX retaliation claim.
I.

BACKGROUND

According to Plaintiff, he was a high-performing admissions
and recruiting officer for Corinthian College’s Everest College
campus.

At various times in 2008, he received complaints about

inappropriate conduct by his supervisor, Stanley Lofton (“Lofton”).
Two of those complaints involved students who alleged that Lofton
had inappropriately hugged them, kissed their cheeks, asked for

their phone numbers, or all three.

The third involved Lofton

putting a coworker, Cynthia Thomas (“Thomas”), in a headlock and
giving her a “noogie” (by rubbing his knuckles on her head).
Plaintiff claims that Thomas was bothered by the conduct, but did
not wish to report it lest she lose her job.

Similarly, the

allegedly harassed student to whom Plaintiff spoke chose not to
press a formal complaint.
However,

in

late

2008,

Campus

President

Jeffrey

Jarmes

(“Jarmes”) told Plaintiff that Lofton was being investigated, at
which point Plaintiff told Jarmes about the three incidents of
misconduct.

In

December

2008,

Plaintiff

wrote

to

Michelle

McCormack (“McCormack”), a human resources representative, offering
to help with the investigation into Lofton. McCormack replied that
the investigation was into “an issue” on the Chicago campus, not
into Lofton, and cautioned Plaintiff not to discuss the issue
without firsthand knowledge. Unbeknownst to Plaintiff at the time,
Lofton sent an e-mail to Human Resources in December 2008, claiming
that Plaintiff was sowing discord and that other employees were
“sick of” him.

Lofton sought guidance on how to fire Plaintiff.

According to Plaintiff, he told Jarmes in late 2008 that he
wanted to take January 2, 2009, off, although he did not have
enough vacation time. Plaintiff claims that Jarmes would give good
employees the day off without charging their vacation time, and
that Jarmes basically told him not to worry.
attend work on January 2.
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Plaintiff did not

Plaintiff contends that another student came to him on or
around

January

5,

2009,

complaining

that

Lofton

behaved

inappropriately toward her. Plaintiff brought the issue to Jarmes,
who told him to direct the student to Jennifer Paugh (“Paugh”).
Plaintiff claims that he escorted the student to Paugh’s office and
dropped her off, but does not know what became of the complaint
after that.
On his January 6 timesheet, Plaintiff marked that he worked on
January 2.

When Lofton told him to correct the sheet, Plaintiff

sought out Jarmes, who again told him not to worry about it.
Jarmes then directed the person in charge of submitting timesheets
to use whatever sick and vacation time Plaintiff had available to
make up the day.

According to his deposition, Jarmes did so to

avoid holding up payroll, and on the theory that errors would be
corrected in the next pay cycle.

Lofton, however, independently

contacted both the payroll person and McCormack, indicating that
Plaintiff

had

falsified

his

timesheet.

Based

on

Lofton’s

explanation, McCormack recommended Plaintiff’s termination to Sean
Quinn

(“Quinn”),

the

Regional

Vice

Plaintiff was fired on January 9, 2009.

President

of

Admissions.

He claims that McCormack

initially refused to give a reason, but eventually said that he was
being fired for “insubordination.”
Defendants

tell

a

different

story.

According

to

them,

Plaintiff suffered no ill consequences from reporting misconduct,
and Lofton was counseled for his unprofessional behavior toward
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Thomas.

Interestingly, Defendants told the EEOC, but do not argue

here, that Plaintiff had a history of making bad faith allegations
against Lofton.

(Based on McCormack’s investigation report, the

Court notes that she may have interviewed the wrong student in one
of Plaintiff’s complaints.

If that is the case, it would not be

surprising that the student denied being harassed.)
Defendants deny that Plaintiff was given January 2 off, and
argue that he simply submitted a falsified timesheet.

When he was

told by Lofton to correct it, he instead took it to Jarmes.
told

Plaintiff

Defendants

to

appear

obtain
to

Lofton’s

claim

uncorrected form instead.

that

approval

Plaintiff

and

Jarmes

signature;

submitted

another

Jarmes told the payroll person to

correct Plaintiff’s timesheet with his sick and vacation hours.
Jarmes and Lofton then both signed the timesheet with handwritten
corrections, however, Lofton’s signature is dated 1/9/2009.

At

Corinthian, timesheet falsification is a terminable offense, and
Defendants claim that Plaintiff was fired accordingly.
notes,

however,

that

Defendants’

employees

give

The Court

such

muddled

accounts that it is difficult to discern Defendants’ version of
several key events.
II.

LEGAL STANDARD

Summary judgment is appropriate if the movant “shows that
there is no genuine dispute as to any material fact and [it] is
entitled to judgment as a matter of law.”

FED . R. CIV . P. 56(a).

A dispute is “genuine” if the evidence would permit a reasonable
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fact finder to find for the non-moving party, and material if it
may affect the outcome of the suit.

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). Courts do not evaluate credibility
or determine facts on summary judgment; they decide only whether
there is enough evidence to send a case to trial. Id. at 249.

If

the movant meets its burden, the non-movant must present facts
showing a genuine dispute to avoid summary judgment.

See Celotex

Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
On summary judgment, the Court construes all facts and draws
all reasonable inferences in favor of the non-moving party.
v. DeStefano, 129 S.Ct. 2658, 2677 (2009).

Ricci

Because employment

discrimination cases turn on issues of intent and credibility, they
receive “special scrutiny” on summary judgment.

Krchnavy v.

Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002).
Title VII prohibits discrimination against an employee for,
inter alia, opposing discrimination and harassment on the basis of
sex.

42 U.S.C. § 2000e-3(a); Fine v. Ryan Intern. Airlines, 305

F.3d 746, 751-52 (7th Cir. 2002).

To prove retaliation under

Title VII directly, a plaintiff must show that:
statutorily

protected

expression;

(2)

he

(1) he engaged in

suffered

an

adverse

employment action; and (3) there was a causal link between the two.
Fine, 305 F.3d. at 752.

Plaintiffs may prove a causal connection

through direct evidence or “a convincing mosaic” of circumstantial
evidence.

O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630-

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31 (7th Cir. 2011).

Plaintiffs may also prove retaliation through

the indirect method set forth by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).

O’Leary, 657 F.3d at

631.
Title IX prohibits sex discrimination by recipients of federal
education funding, and retaliation against those complaining of
such discrimination.

Jackson v. Birmingham Bd. of Educ., 544 U.S.

167, 173-74 (2005).

Courts look to cases decided under Title VII

to frame and inform their analyses under Title IX.

See Franklin v.

Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 74-75 (1992).
III.
A.

DISCUSSION

Title VII Claim

Defendants claim that Plaintiff could not have been retaliated
against in violation of Title VII.
only

the

Thomas

incident

This is so, they argue, because

involved

an

employee

(a

Title

VII

requisite), and Plaintiff admitted in deposition that he did not
think the incident was sexual harassment. Because the behavior did
not violate Title VII, Defendants argue, Plaintiff’s reporting it
to Jarmes was not protected conduct under Title VII.
§ 2000e-3.

See 42 U.S.C.

If Plaintiff did not engage in protected conduct, he

cannot satisfy a necessary element of his retaliation claim.

See

O’Leary, 657 F.3d at 631.
Plaintiff argues that whether his report was protected conduct
is a factual question.

He argues that “[a] reasonable person in

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[his] position would feel obligated, both morally and pursuant to
defendants’ policies, to report the conduct[.]”
Opp’n to Summ. J. 13.

Pl.’s Mem. In

Citing Fine and Firestine v. Parkview Health

System, Inc., 388 F.3d 229 (7th Cir. 2004), Plaintiff argues that
his conduct is protected if he had a reasonable, honest belief that
the reported behavior constituted harassment; he need not have been
correct. However, Plaintiff misses the critical limitation: under
Title

VII,

plaintiffs

must

harassment

is

occurring,

Title

is

reasonably

occurring.

VII

but

that

See

believe

harassment

O’Leary,

657

not

only

that

prohibited
F.3d

at

by

631;

Firestine, 388 F.3d at 234; Fine, 305 F.3d at 752.
Placing Thomas in a headlock was unprofessional conduct, as
Defendants acknowledge, and may well have violated Corinthian’s
general policy against harassment.

However, that policy is not

identical to the requirements of Title VII.

Plaintiff could have

felt (and evidently did, based on his deposition testimony) that he
was bound by morals and office policies to report the conduct,
without

believing

that

the

harassment

violated

Title

VII.

Plaintiff has offered no evidence that he either subjectively or
reasonably believed that Thomas incident was sexual or sex-based
harassment

which

violated

Title

VII;

therefore,

protected from retaliation by that statute.
631-32.

he

was

not

O’Leary, 657 F.3d at

Accordingly, summary judgment on Plaintiff’s Title VII

claim is appropriate.

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B.
1.

Title IX Claim
Punitive Damages

Defendants ask this Court to find that punitive damages are
unavailable under Title IX, citing Barnes v. Gorman, 536 U.S. 181
(2002) and cases interpreting it.
punitive damages

are

not

In Barnes, the Court held that

available

under

Title

VI,

which it

stressed had been interpreted consistently with Title IX.
187-88.

Id. at

That discussion has led several courts to find that

punitive damages are unavailable under Title IX. See, e.g., Doe 20
v. Bd. of Ed. of Cmty Unit Sch. Dist. No. 5, 680 F.Supp.2d 957,
995, (C.D. Ill. 2010).
Plaintiff argues that this case is distinguishable from Barnes
and its progeny, because this case is “virtually identical to a
Title VII case[.]”

Pl.’s Mem. In Opp’n to Sum. J. 15.

Plaintiff

argues that here, Title IX functions like Title VII, and thus that
punitive damages should be available as they are under Title VII.
Plaintiff cites no support for this proposition.
The

Court

agrees

that

in

this

case,

Title

IX

operates

similarly to Title VII. However, the Supreme Court has declined to
rely on Title VII (with its express damages provision) for guidance
on the scope of available damages under Title IX (which lacks one).
Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 283-85
(1998).
discussion

Furthermore, in Barnes, the Supreme Court based its
not

on

the

statute’s

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operation

but

the

source

of

Congress’s authority to enact it — specifically, that Titles VI and
IX were enacted under Congress’s Spending Clause powers.
536 U.S. at 187-88.

Barnes,

The Court treated Title VI and Title IX

obligations as essentially contractual, and accordingly found that
punitive damages were not available under Title VI, as punitive
damages are not ordinary contract remedies. Id.
Court

concludes

that

punitive

damages

are

Accordingly, this
unavailable

under

Title IX.
2.

Substantive Title IX Claim

As noted in Section II above, Plaintiff may prove retaliation
either directly or indirectly. However, under the indirect method,
Plaintiff would need to show that similarly situated individuals
who did not engage in protected conduct were treated differently.
Andriakos v. Univ. of S. Ind., No. 92-3600, 19 F.3d 21, at *4 (7th
Cir. 1994).

The Seventh Circuit recently reaffirmed that the

burden of showing similarly situated individuals should not be
exceedingly heavy. Coleman v. Donahoe, --- F.3d ----, 2012 WL
32062, at *8 (7th Cir. 2012).

However, the parties here have

identified only one other individual who was fired after falsifying
a

timesheet,

and

Plaintiff

similarly situated.

argues

that

that

person

was

not

Accordingly, this Court will follow the

parties’ lead and analyze Plaintiff’s evidence solely under the
direct method.
To succeed, Plaintiff will have to show:

(1) that he engaged

in protected conduct; (2) that he was subjected to an adverse
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employment action; and (3) that there is a causal connection
between the protected activity and the adverse action.
v. Gardner, 587 F.Supp.2d 951, 964 (N.D. Ill. 2008).
657 F.3d at 630-31 (7th Cir. 2011) (Title VII).

See Bryant

Cf. O’Leary,

Defendants do not

seem to dispute that the first and second prongs are met, in that
Lalowski’s reports of student harassment were protected, and he was
fired.
a

Instead, Defendants argue that Plaintiff can show neither

causal

connection

between

the

protected

activity

and

his

termination, nor that Defendants’ espoused reason for firing him is
pretextual.

Def.’s Mem. in Supp. of Mot. for Summ. J. at 13-14.

Plaintiff

may

show

causation

by

demonstrating

that

his

protected conduct was a “substantial or motivating factor” in the
decision to fire him.

See Coleman v. Donahoe, --- F.3d ----,

2012 WL 32062, at *18 (7th Cir. 2012) (Title VII).

He may do so

through direct evidence (such as a confession by the employer) or
by creating a “convincing mosaic of circumstantial evidence” that
raises an inference of retaliation. Id.
evidence

may

be

used

to

create

a

Three categories of

“convincing

mosaic”:

(1)

suspicious timing, ambiguous statements, and other “bits and pieces
from which an inference of retaliatory intent might be drawn”; (2)
evidence

that

similarly

situated

employees

were

treated

differently; and (3) evidence that the employer gave a pretextual
reason for firing the plaintiff. Id. at *19.

Each category may

suffice alone, or several may be used in combination. Id. Here,
Plaintiff relies on the first and third categories of evidence.
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a.

Suspicious Timing

Defendants argue that Plaintiff relies solely on suspicious
timing to create the requisite causal link between his protected
conduct and his termination.

They are right that mere suspicious

timing is not enough to defeat summary judgment; however, the
Seventh Circuit recently reaffirmed that when suspicious timing is
corroborated by other evidence of retaliatory motive, an interval
of “a few weeks or even months may provide probative evidence of
the required causal nexus.” Id. at *19.

Here, the short span of

time between (at least) Plaintiff’s last complaint against Lofton
and his dismissal raises an inference of retaliation. As discussed
below, when the record is construed in Plaintiff’s favor, that
inference is corroborated by some evidence that Defendants’ reason
for terminating Plaintiff was pretextual.
Defendants

argue

that

the

timing

inference

here

is

particularly weak, given that Plaintiff had raised prior complaints
against Lofton without suffering adverse action.

However, this

ignores the December 2008 e-mail in which Lofton seeks to have
Plaintiff fired. Pl.’s Mem. in Opp. to
Plaintiff’s

evidence

is

to

be

Summ. J., at Ex. 15.

believed,

that

e-mail

was

If
in

retaliation for Plaintiff’s previous complaints against Lofton.
Finally,

Defendants

emphasize

that

in

his

deposition,

Plaintiff agreed with defense counsel that suspicious timing was
the basis of his belief that he was retaliated against.
Plaintiff’s

awareness

or

interpretation
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of

other

However,

evidence

of

retaliation is not central to this Court’s independent review of
the record.
b.

Pretext

Defendants have offered a neutral, non-retaliatory reason for
dismissing

Plaintiff:

January 6, 2009.

that

he

falsified

his

timesheet

on

In evaluating that reason is pretextual, the

question is whether the employer honestly believed the reason, not
whether the criticisms of the Plaintiff were fair or accurate. See
O’Leary, 657 F.3d at 635 (Title VII).
However, construing the record in his favor as this Court must
on summary judgment, Plaintiff has offered sufficient evidence of
pretext to defeat summary judgment.
Defendants’

reaction

to

the

For example, he argues that

timesheet

incident

was

grossly

disproportionate, given his testimony at deposition that the Campus
President gave him January 2 off and promised to take care of the
timesheet
Transp.,

issue
643

overreaction

F.3d
to

retaliation.)
However,

for

him.

190,

200

justify
Obviously,

self-serving

See

as

Miller

(7th

Cir.

dismissal”

may

Illinois

2011)
can

Defendants
it

v.

(a
be

dispute

be,

Dept.

of

“disingenuous
impermissible

his

testimony.

Plaintiff’s

deposition

testimony is competent evidence to defeat summary judgment.

Berry

v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010).
Similarly,

Plaintiff

testified

that

McCormack

initially

refused to give him a reason for his dismissal, and told him only
“insubordination” when pressed.

The timesheet issue, he claims,

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was not raised until he filed his complaint with the EEOC.
true, this would support an inference of pretext.

If

See Chaney v.

Plainfield Healthcare Center, 612 F.3d 908, 916 (7th Cir. 2010).
Again, this evidence is contradicted by McCormack’s version of
events, but this only demonstrates that they are contested issues
of fact necessitating a trial.
It may also be, as Defendants argue, that the contradictions
and inconsistencies in the testimony of Defendants’ employees are
the product of faulty memories and the passage of time.

As the

movants on summary judgment, however, Defendants are not entitled
to such an inference.

Those contradictions raise an inference,

albeit a weak one, of post-termination fabrication; added to
Plaintiff’s other evidence, they make granting summary judgment
inappropriate.
Finally, Defendants stress that there is no evidence that
Jarmes reacted poorly to Plaintiff’s complaints, and offer an
affidavit from Sean Quinn in which he avers that he harbors no ill
will or retaliatory impulse toward Plaintiff. This evidence misses
the

point

somewhat,

however,

because

Plaintiff

has

proceeded

essentially on a “cat’s paw” theory by which Lofton, not Jarmes or
Quinn, provided the requisite retaliatory animus and pretext.
Under that theory, a plaintiff may prevail by showing that the
retaliatory actions of someone other than the final decision-maker
are the proximate cause for termination.

- 13 -

See Staub v. Proctor

Hosp., 131 S.Ct. 1186, 1194 (2011) (Uniformed Services Employment
and Reemployment Rights Act).
Here, a jury could conclude that McCormack relied almost
exclusively on Lofton’s retaliatory distortion of the timesheet
situation, and that Quinn in turn relied almost exclusively on
McCormack in deciding to fire Plaintiff. See id. at 1193 (internal
investigation based upon facts provided by a biased supervisor
could support a cat’s paw case.) See also Schandelmeier-Bartels v.
Chicago

Park

Dist.,

634

F.3d

372,

381

(7th

Cir.

2011).

Accordingly, the undisputed fact that Lofton wanted Plaintiff fired
is not irrelevant, and Defendants are not entitled to summary
judgment.
IV.

CONCLUSION

For the reasons stated herein, Defendants’ Motion for Summary
Judgment as to Plaintiff’s Title VII claim and his request for
punitive damages under Title IX is granted. Defendants’ Motion for
Summary Judgment with regard to Plaintiff’s Title IX claim for
retaliation is denied.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: 1/26/2012

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