Gracia v. Sigmatron International, Inc.

Filing 87

MEMORANDUM Opinion and Order. For the reasons stated in the Opinion, Defendant's summary judgment motion is granted in part and denied in part. The status hearing of 12/19/2013 is accelerated to 11/07/2013 at 8:30 a.m. Before the status hearing, the parties must confer on how to move the case forward, including whether to enter a settlement referral to the magistrate judge. Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARIA N. GRACIA,
Plaintiff,
v.
SIGMATRON INTERNATIONAL, INC.,
Defendant.

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No. 11-cv-07604
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Maria N. Gracia brought this suit against Sigmatron International,
Inc., alleging workplace discrimination and a hostile work environment on the basis
of gender and national origin (Count One) and retaliation (Count Two) in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1 R. 1, Compl. ¶¶ 1932.2 Sigmatron moves for summary judgment on all claims. R. 40. For the reasons that
follow, Sigmatron’s motion is granted in part and denied in part.
I. Background
In deciding this summary judgment motion, the Court views the evidence in the
light most favorable to the non-movant, Gracia. Maria Gracia is a female United States
citizen of Mexican-American heritage. R. 50-1, Pl.’s Exh. 1, Gracia Decl. ¶ 2. Gracia

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The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

2

Citation to the docket is “R.” followed by the docket entry. Citations to the parties’
Local Rule 56.1 Statements of Fact are “DSOF” (for Sigmatron’s Statement of Facts) [R. 42],
“Pl.’s Resp. DSOF” (for Gracia’s response to Sigmatron’s Statement of Facts) [R. 47], “PSAF”
(for Gracia’s Statement of Additional Facts) [R. 47; R. 48-2], “Def.’s Resp. PSAF”(for
Sigmatron’s response to Gracia’s Additional Facts) [R. 76], and “Def.’s Reply DSOF” (for
Sigmatron’s reply to Gracia’s response) [R. 77], followed by the paragraph number.

was an “assembly supervisor” at Sigmatron’s Elk Grove Village plant from March 27,
2006 to December 5, 2008.3 Id. ¶ 3; DSOF ¶¶ 6, 27; PSAF ¶ 11. Sigmatron is a company
that manufactures components for electronics used in a variety of industries, including
the life sciences, automotive, and telecommunications industries. DSOF ¶ 1.
As an assembly supervisor, Gracia was responsible for producing assemblies,
which required her to supervise the output and quality of printed circuit boards,
schedule assembly lines and product flow, and hire assembly-line workers. Id. ¶ 7. She
was also responsible for training assembly workers to assemble circuit boards, which
included teaching them to solder and distinguish between types of solders. Id. ¶ 12. To
accomplish these duties, Gracia had the authority to stop production due to quality
concerns, discipline workers, and reassign assembly workers to meet business demand.
Id. ¶ 8.
In Sigmatron’s view, Gracia was not a good employee. Between April 2008 and
July 2008, Gracia was late to work 90% of the time. Id. ¶ 13. On July 21, 2008, Greg
Fairhead (Sigmatron’s Executive Vice President and Director of Operations) and
Patrick Silverman (Gracia’s plant manager) met with Gracia and warned her that she
would be subject to further disciplinary action if her tardiness continued. Id. ¶¶ 2-4,
13. Despite this meeting, Gracia was late to work 20 more times during the next three
months. Id. ¶ 14. Eventually, on October 15, Gracia was suspended for two days
without pay and told that if she missed any scheduled time in the next 90 days, her

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Gracia actually began working for Sigmatron in 1999 as a temporary employee, but was
promoted to assembly supervisor on March 27, 2006. Pl.’s Resp. DSOF ¶¶ 5-6.

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employment would be immediately terminated. Id. ¶ 15. One week later, Gracia was
warned for taking excessive breaks. Id. ¶ 16. The week after that, Gracia was
reprimanded for failing to display required visual aids and customer instructions
during an important plant tour by a potential Sigmatron customer. Id. ¶ 17. And that
same day, she was also reprimanded for taking ten minutes longer for her lunch break
than she was allowed. Id. ¶ 18. Finally, on December 5, 2008, Gracia was fired. Id. ¶
27.
Sigmatron claims that on December 4 (the day before Gracia was fired), Eduardo
Trujillo, a fellow supervisor at the plant, saw that Gracia’s assembly workers were
intentionally failing to follow customer specifications for the assembly of circuit boards.
Id. ¶ 19; R. 78-9, Def.’s Exh. 16, Trujillo Dep. 30:15. Specifically, according to
Sigmatron, Trujillo saw Gracia’s assembly workers using RoHS (“Reduction of
Hazardous Substances,” or lead-free) solder on a circuit board that required leaded
solder. R. 78-6, Def.’s Exh. 12, Gracia Dep. 71:23-72:1; R. 78-2, Def.’s Exh. 2, Fairhead
Dep. 47:21-22. Trujillo approached Gracia and told her that she was allowing products
to be soldered incorrectly. DSOF ¶ 20. Instead of intervening to stop the soldering,
Gracia told Trujillo, “I have done this many times before and nobody ever found out.”
R. 41-15, Def.’s Exh. 15 at SMT-GRACIA0097 (Fairhead Memo). According to
Sigmatron, Trujillo immediately told Silverman, who confirmed that Gracia’s workers
were using lead-free instead of leaded solder, stopped production, segregated the
misassembled product, and informed Fairhead. DSOF ¶¶ 21-22. The next day, after
various meetings with Trujillo and other assembly line personnel, Fairhead and
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Sandra Miedema (the corporate HR manager) met with Gracia. R. 78-4, Def.’s Exh. 3,
Miedema Dep. 13:16-20; DSOF ¶¶ 23-25. In that meeting, Gracia admitted that her
workers had been mixing solders, which she knew from her training was unacceptable.
Id. ¶ 25. After that meeting, Sigmatron says, Fairhead fired Gracia because of her
failure to direct her production workers to adhere to customer specifications and her
unprofessional attitude toward her job responsibilities. Id. ¶ 27.
Gracia has a different view of what happened, particularly on what caused her
performance issues. Gracia does not dispute that she had problems with attendance
and tardiness, see Pl.’s Resp. DSOF ¶¶ 13-17, but she alleges that her problems were
caused by sexual and national-origin harassment from her supervisor, Silverman, see
Gracia Decl. ¶¶ 20-21. She alleges that Silverman, beginning in June 2007, sent her
harassing emails. In June, Silverman forwarded Gracia an email proposing that the
United States cut down on gasoline usage by sending all illegal immigrants to fight in
Iraq. PSAF ¶ 7; see also R. 41-24, Def.’s Exh. 24 at SMT-GRACIA0240. In August,
Trujillo forwarded Gracia an email from Silverman (subject line: “Yep, I passed it on”)
which was critical of Mexican immigrants and contained several attachments,
including (1) a picture of a mariachi band in a baseball stadium with the caption “Jose
canoe si” instead of the correct opening lyrics (“Oh say can you see”) to the “Star
Spangled Banner” and (2) a map of North America where Mexico is labeled as “Yours”
and the United States is labeled as “Not Yours.” PSAF ¶ 4; Gracia Decl. ¶ 8; see also
R. 58-1-60-1, Pl.’s Exh. E. In September, Silverman sent Gracia an email entitled
“Original Homeland Security” that said, “Ask the American Indians what happens
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when you don’t control immigration.” PSAF ¶ 3; see also R. 51-1, Pl.’s Exh. A. In
November, Silverman sent Gracia three more emails, this time ridiculing women: (1)
a picture taken from behind a woman with bare buttocks towing two cases of beer
behind her (subject line: “Redneck Tractor Pull”); (2) an altered photograph of a smiling
woman in a bikini with outlandishly enlarged breasts (subject line: “Do these
sunglasses make my face look fat?”); and (3) an altered photograph of a topless woman
lying face-down on a beach chair with her enlarged breasts protruding through the
chair (subject line: “Best Beach Photo”). PSAF ¶ 3; see also R. 52-1, Pl.’s Exh. B; R. 531, Pl.’s Exh. C; R. 54-1, Pl.’s Exh. D. Finally, in April 2008, Silverman sent Gracia a
photograph of Gracia’s sister holding a baby; the face of a former plant employee is
superimposed over the baby’s face and the photograph is captioned “Mama . . . leche
por favor!” (“Mama . . . milk please!”). PSAF ¶ 6; see also R. 55-1, Pl.’s Exh. F.
Gracia also alleges that Silverman pursued a romantic relationship with her.
She alleges that he repeatedly called and texted her in the evening and late at night,
asking to spend the night at her Chicago apartment after he attended a Cubs game (so
that he did not have to drive back to the suburbs after the game) or asking her to meet
up with him. PSAF ¶¶ 8, 17, 33. Around her birthday in August 2008, Silverman
invited her to dinner and a movie with him. Id. ¶ 9. Silverman also brought pastries
for people at the plant to celebrate Valentine’s Day and Sweetest Day, but would single
her out specifically for a pastry or a greeting card. Id. ¶¶ 10, 12. Once, when Sigmatron
participated in an annual trade show, Silverman directed Gracia to ride to the show
in his car but directed other employees to drive in separate vehicles. Id. ¶ 11. And
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another time, while Gracia was standing on the production floor, Silverman pulled the
collar of her turtleneck sweater down to expose her neck. Id. ¶ 13. Gracia alleges that
she complained to Executive VP Fairhead and HR Manager Miedema, but they did not
treat her complaints of harassment seriously. See PSAF ¶¶ 14-20, 23-24. She became
increasingly anxious about Silverman’s conduct because she feared that he could fire
her, which caused her to be late to work in order to avoid Silverman as much as
possible. Id. ¶¶ 21-22.
Of the solder incident that led to her firing, Gracia denies mixing solder types
or causing any serious problems for Sigmatron by allowing an assembly employee to
use lead-free solder on a leaded circuit board. PSAF ¶ 28. She claims that mixing
solder was a minor error that occurred regularly without resulting in discipline or
termination. Gracia Decl. ¶ 43. And she says that once Trujillo told her that one of her
workers was using lead-free instead of leaded solder, she immediately stopped the
employee from soldering and gave the employee lead-free circuit boards to work on. Id.
¶ 48. Instead, Gracia believes that Sigmatron fired her in retaliation for filing a charge
of discrimination and harassment with the United States Equal Employment
Opportunity Commission (EEOC). R. 48-1, Pl.’s Resp. at 15-19. According to Gracia,
Fairhead received notice of her EEOC charge after she filed it on December 1, 2008.
See R. 1 at 7; PSAF ¶ 32. Only a few days later, on December 5, Fairhead fired her.
DSOF ¶ 27.

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Ultimately, Gracia filed this lawsuit after receiving a right-to-sue letter from the
EEOC. R. 1 at 8. Following discovery, Sigmatron has filed this motion for summary
judgment. R. 40.
II. Standard of Review
Summary judgment must be granted “if the movant shows that there is no
genuine dispute as to any material facts and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts, and any inferences to be drawn
from them, must be viewed in the light most favorable to the non-moving party. Wis.
Centr., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008).
III. Analysis
As a threshold matter, not all of the claims in the original complaint remain in
the case. Although Gracia’s complaint alleges (1) gender and national-origin
discrimination, (2) a hostile work environment caused by gender and national-origin
harassment, and (3) retaliation, see Compl. ¶¶ 19-32, Gracia backed away from her
non-hostile-environment discrimination claims in her response brief. See Pl.’s Resp. at
17 (stating that “supposed claims of disparate treatment discrimination on grounds of
her sex and national origin” have “never been part of this case”). And after Sigmatron
pointed this waiver out in its reply brief, see R. 78, Def.’s Reply at 3, Gracia never
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contested that argument in her sur-reply brief, see generally R. 82. Thus, Gracia’s
discrimination claims are waived and considered abandoned. See, e.g., United States
v. Kennedy, 726 F.3d 968, 975 (7th Cir. 2013) (“Waiver is the intentional
relinquishment or abandonment of a known right . . . .”). The only live claims now are
Gracia’s hostile work environment (caused by gender and national-origin harassment)
and retaliation claims.
A. Hostile Work Environment
One of the ways in which employers may violate Title VII’s prohibition against
sex or national-origin discrimination in the terms and conditions of employment is by
permitting harassment on the basis of gender or national origin “that is sufficiently
severe or pervasive” to create an abusive working environment. See Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)). Under Title VII, to survive summary judgment on her
hostile work environment claims, Gracia must (1) produce evidence that the alleged
harassment was severe or pervasive, (2) show that the hostile conditions were because
of her gender and national origin, and (3) present a basis for employer liability. Hall
v. City of Chicago, 713 F.3d 325, 330 (7th Cir. 2013). Contrary to what Sigmatron
believes, the harassing conduct does not need to be both severe and pervasive. Id. In
fact, one instance of conduct that is sufficiently severe may be enough. See Smith v.
Sheahan, 189 F.3d 529, 533 (7th Cir. 1999) (collecting Supreme Court cases).
Conversely, conduct that is not particularly severe individually but is an incessant part
of the workplace environment may be pervasive enough to subject the employer to
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liability. Jackson v. Cnty. of Racine, 474 F.3d 493, 499 (7th Cir. 2007). Ultimately, the
key question is whether the conduct was so severe or pervasive as to alter the terms
or conditions of the employment relationship. Id. (citation omitted).
In order to decide whether Gracia’s showing meets this standard, the Court
must examine all of the circumstances surrounding the alleged harassment, including
the “frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Moser v. Ind. Dep’t of Corr., 406 F.3d
895, 902 (7th Cir. 2005) (internal quotation marks and citation omitted). This
examination comprises both an objective and subjective inquiry—put differently, the
alleged harassment must have been objectively severe or pervasive, and Gracia must
have subjectively believed that the alleged harassment was severe or pervasive. See
Jackson, 474 F.3d at 499 (citation omitted).
1. Sexual Harassment
a. Severity or Pervasiveness
Gracia complains that Silverman subjected her to unwanted romantic advances.
During the summer of 2008, she alleges that he “often” asked to stay the night at her
house in Chicago after he attended Cubs games in the city because her house was
closer to work than going to Silverman’s home. Gracia Dep. 117:12-17, 119:1-3; Gracia
Decl. ¶ 13.4 Silverman also called and sent her late-night text messages “more than

4

Although Sigmatron asserts that self-serving affidavits cannot create an issue of fact,
see, e.g., Def.’s Resp. PSAF ¶ 28, that statement is wrong: “[A] self-serving affidavit supported

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once” (or “frequently”), inviting her to go out with him, eat dinner with him, or meet
up with him. Gracia Dep. 119:13-22, 120:1-3; Gracia Decl. ¶ 13. This includes a
September 2008 incident where Silverman called Gracia to invite her to a supplier
party but later blamed it on a former Sigmatron employee who supposedly used his
phone without his knowledge. R. 78-8, Def.’s Exh. 13, Silverman Dep. 43:22-48:12;
Gracia Dep. 101:3-20; Gracia Decl. ¶ 31. Silverman also left her late-night voicemails
while drunk “more than once,” asking her to call him back. Gracia Dep. 120:24-121:15.
In August 2008, Silverman repeatedly (two or three times) told her he wanted to take
her out to dinner and a movie for her birthday. Gracia Dep. 119:6-12; Gracia Decl. ¶ 14.
And Silverman would “a lot of times” bring in pastries for others, but call her into his
office to give her a different pastry just for her. Gracia Dep. 104:23-105:2; Gracia Decl.
¶ 18. There were also one-off incidents. For example, Silverman gave her a greeting
card for Sweetest Day in October 2007. Gracia Decl. ¶ 15. Once, Silverman insisted
that Gracia ride to a trade show in his car but made other employees travel to the show
separately. Gracia Dep. 147:21-148:24; Gracia Decl. ¶ 17. And on the factory floor,
Silverman once asked her whether she was hiding bite marks under her turtleneck
sweater and pulled down the collar of her sweater to reveal her neck. Gracia Dep.
115:11-116:22; Trujillo Dep. 27:13-28:5; Gracia Decl. ¶ 16.
by facts in the record could defeat summary judgment,” Buie v. Quad/Graphics, Inc., 366 F.3d
496, 504 (7th Cir. 2004); see also Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013) (“As we
have repeatedly emphasized over the past decade, the term ‘selfserving’ must not be used to
denigrate perfectly admissible evidence through which a party tries to present its side of the
story at summary judgment.” ). So the Court rejects Sigmatron’s attack on Gracia’s declaration
on that basis, and Sigmatron does not otherwise provide a specific explanation for how the
declaration is unsupported by the record.

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Gracia also alleges that Silverman targeted her in cyberspace rather than just
in person. Silverman, beginning in November 2007, sent Gracia several offensive
emails depicting partially naked women: (1) the “Redneck Tractor Pull” email, which
is a picture showing a woman with bare buttocks towing two cases of beer in front of
a crowd of onlookers, Pl.’s Exh. B; (2) the “Sunglasses” email, which is an altered
photograph of a smiling woman in a bikini with outlandishly enlarged breasts, Pl.’s
Exh. C; and (3) the “Best Beach Photo” email, which is a similarly altered photograph
of a topless woman lying face-down on a beach chair with her grotesquely enlarged
breasts protruding through the chair, Pl.’s Exh. D. And in April 2008, Silverman sent
her a photograph of Gracia’s sister holding a baby; the face of a former plant employee
is superimposed over the baby’s face and the photograph is captioned “Mama . . . leche
por favor!” (“Mama . . . milk please!”). Pl.’s Exh. F. On three of these emails, Gracia
was the only recipient; on the other email, she was one of two recipients. See Pl.’s Exhs.
B-D, F. According to Gracia, then, not only did Silverman send her these emails
demeaning women (including her own sister), but he targeted her specifically.
Sigmatron asserts that the emails Silverman sent Gracia are outside the 300day limitations period, so the Court may not consider them. R. 41, Def.’s Br. at 13.
Under Title VII, an employee has 300 days from the occurrence of an allegedly
discriminatory act in which to file a timely charge with the EEOC. 42 U.S.C. § 2000e5(e)(1); Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999).
Generally, a plaintiff is only allowed to base a Title VII suit on conduct occurring
within the limitations period. Hardin, 167 F.3d at 344 (citation omitted). Here, the
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EEOC charge was filed on December 1, 2008, see R. 1 at 7, meaning that any alleged
discrimination occurring before February 2008 (which includes the first three emails)
would generally be time-barred from consideration. But there is an exception to this
rule: under the “continuing violation” doctrine, plaintiffs who can show that there has
been a pattern of discrimination beginning outside the 300-day period and continuing
into the 300-day period may reach back to the untimely acts and base liability on them.
Hardin, 167 F.3d at 344. Here, Gracia has alleged that Silverman began to harass her
by calling and texting her to meet up with him at night, asking to stay at her house,
singling her out for treats, directing her to ride to a trade show with him, pulling down
her sweater collar without her permission, and sending her lewd emails. This alleged
behavior occurred both inside and outside the 300-day period. And this alleged
behavior was all part of a single pattern of unwanted advances; it is not the case that
(as Sigmatron argues, see Def.’s Reply at 9 n.9) the emails were acts of harassment
wholly separate from Silverman’s invitations and advances. In other words, Gracia has
alleged that Silverman’s general modus operandi of making advances included sending
lewd emails. Finally, although the continuing violation doctrine does not apply if the
employee should have reasonably perceived her working conditions as intolerable—and
brought an EEOC charge at that point—before the 300-day period, DeClue v. Cent. Ill.
Light Co., 223 F.3d 434, 435 (7th Cir. 2000) (citations omitted), a large part of the
alleged behavior here did not occur until after the 300-day clock began ticking. Gracia
could not have reasonably brought a hostile work environment claim before February
2008 (which is before Silverman began asking Gracia to stay overnight at her house,
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calling and texting her late at night to meet up, and inviting her on dates), so this
exception-to-the-exception does not apply. Under the continuing violation doctrine,
then, the Court can, and will, consider any alleged harassment that occurred before
February 2008.
Now that the Court has identified all of the instances of alleged harassment, the
question is whether they were objectively severe or pervasive.5 Hall, 713 F.3d at 330.
Taking the second possibility first, Gracia herself has left the pervasiveness of the
alleged harassment unclear. It appears that the alleged harassment began as early as
November 2007 (when Silverman sent the “Redneck Tractor Pull” email, see Pl.’s Exh.
B) and lasted until September 2008 (when Silverman allegedly called her from the
supplier party, see Gracia Decl. ¶ 31). Over those ten or eleven months, Gracia has not
identified, even generally, how often Silverman harassed her. Gracia is certain that
Silverman sent her four emails that were derogatory toward women, pulled down her
turtleneck once, made her ride with him to a trade show once, and called her from a
supplier party once, but she is murky on how often he asked her to meet up at night
or stay overnight at her house and how often he gave her pastries. See, e.g., Gracia
Dep. 104:23-105:5 (testifying that Silverman gave her pastries “a lot of times”); id.
119:18-22 (testifying that Silverman sent her late-night texts “more than once”); id.
120:24-121:5 (testifying that Silverman called her while intoxicated “more than once”).
And her declaration, created after her deposition, does not fill in the blanks; she only

5

The parties agree that Gracia subjectively felt harassed. See generally Def.’s Br.

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avers that she “frequently” or “often” received unwanted telephone calls and text
messages, that Silverman “repeatedly” told her to go on a date with him for her
birthday, and that he “sometimes” gave her pastries individually. Gracia Decl. ¶¶ 1314, 18. From this evidence—which is entirely within Gracia’s knowledge—the Court
cannot pin down exactly how often this behavior allegedly occurred. Nor has Gracia
even tried to provide estimates of the number of times this behavior happened. To be
sure, an exact number is not needed to render the testimony admissible, and the Court
must draw all reasonable inferences in Gracia’s favor. But without even an attempt at
estimating the number of times, the only reasonable inference to be drawn from this
evidence is that Silverman made these unwanted advances more than once. And that
is of little help in deciding whether the number of these repeat advances, when added
to the number of single instances of alleged harassment, was so pervasive as to be
objectively hostile. Cf. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir.
2007) (holding that eighteen sexist or sexual comments in less than a year’s time was
sufficiently pervasive to survive summary judgment).
But as noted above, harassment need not be severe and pervasive to comprise
a hostile work environment. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th
Cir. 2000) (citations omitted). Although a reasonable jury might not be able to find that
the alleged harassment was so pervasive that it created a hostile work environment,
a reasonable jury could find that the alleged harassment was so severe after weighing
the alleged harassing acts together (instead of separately analyzing each incident, see
Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1045 (7th Cir. 2000) (citation
14

omitted)). Gracia paints a picture of a superior at work—indeed, the manager of the
entire Elk Grove Village plant—who actively pursued an unwanted romantic
relationship with her by asking to stay overnight at her house, asking her on dates,
calling late at night to see if she wanted to meet up (sometimes while drunk), and
singling her out for special treatment and attention. See PSAF ¶¶ 8-12, 17, 33; Gracia
Dep. 117:6-121:15. Silverman’s pursuit also escalated into an instance of physical
touching where Silverman pulled down the neck of her sweater without permission at
work, embarrassing her in front of her colleague. Gracia Dep. 115:11-116:22. What’s
more, his pursuit also included directing workplace emails at her, and often her alone,
featuring partially naked women, women with digitally enlarged breasts, or both. See
Pl.’s Exhs. B-D; cf. Williams v. City of Chicago, 325 F. Supp. 2d 867, 876 (N.D. Ill.
2004) (denying summary judgment for employer when a jury could infer that the
plaintiff’s former colleagues left pornography on her computer intending or hoping that
she would see it). Critically, fending off Silverman’s unwanted advances took its toll
on Gracia (if the evidence is viewed in the light most favorable to her): she grew
increasingly anxious to see Silverman and intentionally tried to avoid him as much as
possible—even to the point of risking firing by coming to work late. Gracia Decl. ¶¶ 1921. Indeed, Sandra Miedema, Sigmatron’s corporate HR director, noticed that Gracia
was “more dull,” “lacked luster,” and “wasn’t Maria” as an assembly supervisor when
Gracia was previously “always on time” and “always on top of her game” when she
worked with Miedema in HR. Miedema Dep. 79:1-20. Sigmatron’s own employee thus
corroborated Gracia’s testimony (again, after viewing the evidence in the light most
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favorable to Gracia) that the harassment interfered with her work performance. See
Moser, 406 F.3d at 902 (stating that whether harassment “unreasonably interferes
with an employee’s work performance” factors into objective severity). Thus, although
each incident of alleged harassment standing alone might not be objectively severe, it
is at least a jury question whether the alleged pattern of harassment, when viewed
together, rose (or sunk) to that level. It is a close call, but at this stage, the Court
cannot say that no reasonable jury would find that Silverman’s behavior was so severe
that it altered the conditions of Gracia’s employment. See, e.g., Jackson, 474 F.3d at
499 (citation omitted). Gracia has satisfied the first prong of this test.
b. Connection to Gender
Next, Gracia must present evidence that there is a genuine issue of material fact
that Silverman’s harassment was connected to Gracia’s gender. Although Sigmatron
argues that there is no connection, Def.’s Br. at 15, that argument is easily rejected.
After viewing Gracia’s evidence—emails sent to her depicting females in a demeaning
light with breasts enlarged and exposed; unrequited invitations to meet up at night,
go on dates, or stay overnight; individual deliveries of pastries on Valentine’s Day and
Sweetest Day; nonconsensual touching—in the light most favorable to her, a
reasonable jury could certainly conclude that Silverman pursued a romantic
relationship with Gracia and was thus motivated by Gracia’s gender. See, e.g., Oncale,
523 U.S. at 80 (“Courts and juries have found the inference of discrimination easy to
draw in most male-female sexual harassment situations, because the challenged
conduct typically involves explicit or implicit proposals of sexual activity; it is
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reasonable to assume those proposals would not have been made to someone of the
same sex.”). Gracia has satisfied this prong as well.
c. Basis for Employer Liability
Finally, there must be a basis for employer liability. Employer liability turns on
what role Silverman played: was he Gracia’s supervisor, or just a co-worker? If he was
Gracia’s co-worker, then Sigmatron is liable only if it was negligent in controlling
working conditions. Vance v. Ball State Univ., — U.S. —, 133 S. Ct. 2434, 2439 (2013).
On the other hand, if Silverman was Gracia’s supervisor, as that term is defined in
Vance, and his harassment culminates in a tangible employment action, then
Sigmatron is strictly liable. Id. But if he was a supervisor and did not take a tangible
employment action, then Sigmatron may escape liability by establishing, as an
affirmative defense, that (1) it exercised reasonable care to prevent and correct any
harassing behavior and (2) Gracia unreasonably failed to take advantage of the
preventive or corrective opportunities that the employer provided. Id. (citing
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)).
In this case, Silverman was Gracia’s supervisor. In Vance, the Supreme Court
defined a supervisor as an employee who is empowered by the employer to take
tangible employment actions against the victim. Id. at 2443. In other words, a
supervisor must have authority to effect a significant change in employment status,
“such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Id. (emphasis
added) (internal quotation mark and citation omitted). Although that nonexhaustive
17

list of supervisory powers does not explicitly mention the authority to impose
discipline, Vance adopted the Seventh Circuit’s definition of “supervisor,” and in the
Seventh Circuit an employee who has the authority to discipline the harassment victim
is a supervisor. See, e.g., Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002)
(quoting Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1034 (7th Cir. 1998)),
overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir.
2013). Here, Sigmatron itself asserts that Sigmatron empowered Silverman to
discipline Gracia. DSOF ¶ 44. And indeed, the written Employee Disciplinary Notices
and Records of Conversation detailing the verbal reprimands that Silverman issued
to Gracia all bear Silverman’s signature. See R. 41-8, Def.’s Exh. 8; 41-10-11, Def.’s
Exhs. 10-11; R. 41-14, Def.’s Exh. 14. Thus, although Silverman may not have been
able to fire Gracia by his lonesome, see DSOF ¶ 44, the fact that he could discipline her
makes him her supervisor for Title VII purposes.
But as Gracia’s supervisor, the most Silverman was solely responsible for was
reprimanding her both orally and in writing without further consequences. See Def.’s
Exhs. 8, 10-11, 14. For example, on October 30, 2008, Silverman issued a written
warning to Gracia because she failed to have important documentation in place during
an important plant tour by a prospective customer. See Def.’s Exh. 11 at SMTGRACIA0095. Silverman’s is the only signature from plant management on that form.
See id. Compare that form with the two-day suspension without pay that Gracia
received on October 15, 2008; both Silverman’s and Fairhead’s signatures appear on
that written suspension. See Def.’s Exh. 9 at SMT-GRACIA0083. Thus, the evidence
18

shows that Silverman could only issue discipline that did not affect her pay, and
reprimands that stand alone without material job consequences are not adverse
employment actions. See, e.g., Porter v. City of Chicago, 700 F.3d 944, 955 (7th Cir.
2012) (collecting cases); Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 613 (7th Cir. 2001).6 So
although Silverman was a supervisor, he never took a tangible employment action
against Gracia, meaning that the Ellerth affirmative defense is still in play.
To escape liability, then, Sigmatron must establish that (1) it exercised
reasonable care to prevent and correct any harassing behavior, and (2) Gracia
unreasonably failed to take advantage of the preventive or corrective opportunities that
the employer provided. Ellerth, 524 U.S. at 765. On the first prong, although
Sigmatron asserts that Gracia failed to follow Sigmatron’s HR policy against
harassment by not reporting all of the incidents of harassment, see Def.’s Br. at 16-17,
“[t]he mere creation of a sexual harassment policy will not shield a company from its
responsibility to actively prevent sexual harassment in the workplace.” Passananti v.
Cook Cnty., 689 F.3d 655, 673 (7th Cir. 2012) (internal quotation marks and citation
omitted). Rather, the true measure of reasonable care is whether the employer took
prompt and appropriate corrective action that was reasonably likely to prevent further
harassment, including, at a minimum, prompt investigation. See Cerros v. Steel Techs.,

6

Indeed, in Oest, the Seventh Circuit rejected the idea that a reprimand is its own
material consequence because it brings the recipient closer to termination: “Such a course [is]
not an inevitable consequence of every reprimand, however; job-related criticism can prompt
an employee to improve her performance and thus lead to a new and more constructive
employment relationship.” 240 F.3d at 613.

19

Inc., 398 F.3d 944, 953-54 (7th Cir. 2005) (citations omitted). And here, although
Gracia does admit that she never reported the full extent of Silverman’s harassment,
see Pl.’s Resp. DSOF ¶¶ 40-43, she explains in her declaration that she did try to report
that Silverman had harassed her with more than just one late-night invitation to a
supplier party, but that Fairhead was having none of it:
Greg Fairhead spoke with me about these calls, in Patrick Silverman’s presence,
saying that, “it only happened one time,” and generally talking over me, when
I tried to correct Greg Fairhead’s misimpression and report that there had been
more than one call from the party and other unwanted calls and texts on other
nights.
Gracia Decl. ¶ 31. Sigmatron asserts that this declaration contradicts her deposition
testimony and thus should not be considered, Def.’s Resp. PSAF ¶ 24, but that is
wrong. In Gracia’s deposition, she testified, just as she averred in her declaration, that
she tried to tell Fairhead that Silverman had called her on multiple occasions (and not
just once to invite her to the supplier party), but that Fairhead refused to consider that
complaint:
Q:

Did you clarify for him [Fairhead] and tell him, It wasn’t just that night,
when he was trying to get me to come to the supplier party? He called me
more than once. It was on multiple occasions he called me.

A:

I tried, yes.

Q:

What—how did you try? What did you say to him?

A:

I was trying to talk to him, but he would just, you know, start talking
again. Like, Maria, you know, it was just one time. Just stop. You know,
We already talked to Patrick, you know. And he said, It was only that one
time that he called. So every time I was trying to talk, he would talk over
me, so . . .

20

Gracia Dep. 132:17-133:5. Thus, Gracia has presented evidence that Sigmatron
(through Fairhead, who was authorized to suspend and fire Gracia) prejudged the
truth of her accusations (“[I]t was just one time” and “We already talked to Patrick”)
and actively prevented her from airing the full scope of Silverman’s harassment (“Just
stop”). From this evidence, a reasonable jury who believes Gracia’s account could find
that Sigmatron acted unreasonably by not investigating the accusations of harassment
at all, choosing instead to immediately take Silverman’s word and sweep Gracia’s
complaints under the rug by short-circuiting the employee-reporting process. See, e.g.,
Haugerud v. Amery Sch. Dist., 259 F.3d 678, 699-700 (7th Cir. 2001) (holding that the
employer did not exercise reasonable care to prevent harassing misconduct when it did
nothing after receiving a harassment complaint). And a jury that made that finding
would find that Sigmatron is not entitled to the Ellerth affirmative defense and is
liable for Silverman’s harassment. As a result, there are now two genuine issues of
material fact on Gracia’s gender-based hostile work environment claim: (1) whether
Silverman’s harassment was objectively severe, and (2) whether Sigmatron is shielded
from liability by the Ellerth affirmative defense. A jury must resolve these conflicts, so
Sigmatron’s motion for summary judgment on this claim is denied.
2. National-Origin Harassment
Gracia also brings a national-origin-based hostile work environment claim,
although she barely argues it in her response brief. See Pl.’s Resp. at 12. Here, the
evidence she presents that Silverman harassed her because of her national origin

21

(Mexican-American, see Gracia Decl. ¶ 2) are four emails over eleven months that
ridicule Mexicans and Mexican immigrants:
1.

A June 2007 email from Silverman proposing that the United States cut
its gasoline usage by sending all illegal immigrants to fight in Iraq. Def.’s
Exh. 24 at SMT-GRACIA0240.

2.

An August 2007 email originally sent by Silverman (but forwarded from
Trujillo) that was critical of Mexican immigrants and contained a picture
of a mariachi band in a baseball stadium with the caption “Jose canoe si”
and a map of North America where Mexico is labeled as “Yours” and the
United States is labeled as “Not Yours.” Pl.’s Exh. E.

3.

A September 2007 email from Silverman entitled “Original Homeland
Security” that said, “Ask the American Indians what happens when you
don’t control immigration.” Pl.’s Exh. A.

4.

An April 2008 email from Silverman containing a photograph of Gracia’s
sister holding a baby; the face of a former plant employee is superimposed
over the baby’s face and the photograph is captioned “Mama . . . leche por
favor!” (“Mama . . . milk please!”). Pl.’s Exh. F.

Viewing these emails in the light most favorable to Gracia, the emails ham-handedly
ridicule immigration (both legal and illegal, and most prominently those who
emigrated from Mexico), the Spanish language, and Gracia’s own sister.
But unlike Gracia’s gender-based hostile work environment claim, this hostile
work environment claim fails under the severe-or-pervasive test. As to severity,
although the emails were undoubtedly offensive, no racial epithets were used in any
of the complained-of incidents, much less epithets directed at her. Compare Smith v.
Ne. Ill. Univ., 388 F.3d 559, 567 (7th Cir. 2004) (no hostile work environment where
“motherfucking black niggers,” “motherfucking niggers,” or “black motherfuckers,”
were used but not directed at the employee), and Peters v. Renaissance Hotel Operating
22

Co., 307 F.3d 535, 552 (7th Cir. 2002) (hotel supervisor’s reference to black music as
“wicka wicka woo music,” suspicious treatment of African-American hotel guests, and
one incident where a co-worker used the word “nigger” in the employee’s presence did
not constitute a hostile work environment), with Lambert v. Peri Formworks Sys., Inc.,
723 F.3d 863, 868-89 (7th Cir. 2013) (reversing summary judgment for employer on
hostile work environment claim where supervisors referred to workers on multiple
occasions as “donkeys” and a “gorilla” and where a supervisor told the employee
directly that the supervisor did not respect him because he was a “nigger”), and Cerros
v. Steel Techs., Inc., 288 F.3d 1040, 1046-47 (7th Cir. 2002) (reversing summary
judgment for employer on hostile work environment claim where the employee was
called “brown boy, spic, wetback, Julio and Javier” by both coworkers and supervisors,
where coworkers openly touted the Klu Klux Klan and “White Power,” and where there
was racially offensive graffiti on the bathroom walls). Gracia herself, moreover, avers
that her workplace performance suffered because of Silverman’s sexual harassment
and not his national origin harassment. See Gracia Decl. ¶ 19. Finally, these four
emails over eleven months are not sufficiently pervasive to support a hostile work
environment claim. See Peters, 307 F.3d at 552 (six offensive incidents over
one-and-a-half years of employment were not sufficiently pervasive).
To be sure, the emails that Silverman sent to Gracia (when viewed in the light
most favorable to her) were crude. That Silverman introduced such content to the
workplace—one where he managed the entire plant—speaks poorly of Silverman’s
professional judgment and maturity. But Title VII is not a “general civility code,” see
23

Oncale, 523 U.S. at 81, and actionable harassment is only that which is “so severe or
pervasive as to alter the terms or conditions of the employment relationship.” Jackson,
474 F.3d at 499 (internal quotation mark and citation omitted). Even after viewing the
evidence in the light most favorable to Gracia, no reasonable jury would find that she
suffered a hostile work environment because of her national origin, so Sigmatron’s
motion is granted on that claim.
B. Retaliation
Finally, Gracia brings a Title VII retaliation claim. In her view, Sigmatron
violated Title VII by firing her in retaliation for filing an EEOC charge. See Pl.’s Resp.
at 15-19. Sigmatron disagrees, asserting that it fired Gracia for poor performance,
especially after she allowed her assembly workers to use lead-free solder on a leaded
circuit board. See Def.’s Reply at 12.
In addition to prohibiting a hostile work environment, Title VII also prohibits
retaliating against an employee “because [s]he has opposed any practice made an
unlawful employment practice . . . or because [s]he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing.”
42 U.S.C. § 2000e-3(a). Like discrimination, retaliation may be established by either
direct or indirect methods of proof. Coleman, 667 F.3d at 859 (citation omitted).7 To
survive summary judgment on her retaliation claim under the direct method, Gracia

7

It is worth noting that a majority of active-service Seventh Circuit judges has now
expressed that the direct/indirect-method analytical structure has caused more confusion than
good, and that it is more straightforward to just ask “whether a reasonable jury could infer
prohibited discrimination.” Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013).

24

must show that (1) she engaged in activity protected by Title VII, (2) Sigmatron took
an adverse employment action against her, and (3) there was a causal connection
between her protected activity and the adverse employment action. Id. (citation
omitted). The parties agree that the first two elements are satisfied, and for good
reason: Gracia’s formal EEOC charge was “the most obvious form of statutorily
protected activity,” and her termination was an adverse employment action. Id. at 85960 (internal quotation marks and citation omitted). Thus, the remaining question is
whether Gracia has demonstrated a causal link between her EEOC charge and her
termination. Specifically, under the traditional principles of but-for causation, Gracia
must show that Sigmatron fired her because of the EEOC charge. See Univ. of Tex. Sw.
Med. Ctr. v. Nassar, — U.S. —, 133 S. Ct. 2517, 2533 (2013).
To do that, Gracia can present either direct or indirect evidence. Gracia lacks
direct evidence, which is unsurprising because direct evidence is generally hard to
come by. See Coleman, 667 F.3d at 860 (describing direct evidence as “something akin
to an admission by the employer (‘I’m firing you because you had the nerve to accuse
me of sex discrimination!’)” (internal quotation mark and citation omitted)). She thus
must rely on a “convincing mosaic” of circumstantial evidence that would permit the
same inference without the employer’s admission. Rhodes v. Ill. Dep’t of Transp., 359
F.3d 498, 504 (7th Cir. 2004) (quoting Troupe v. May Dep’t Stores Co., 20 F.3d 734, 737
(7th Cir. 1994)) (internal quotation marks omitted). Under this approach, there are
three categories of circumstantial evidence: (1) evidence of suspicious timing, (2)
evidence that similarly situated employees were treated differently, and (3) evidence
25

that the employer offered a pretextual reason for an adverse employment action.
Coleman, 667 F.3d at 860 (citations omitted). After viewing Gracia’s evidence in the
light most favorable to her, the Court concludes that she has presented sufficient
evidence of suspicious timing and a pretextual termination to survive summary
judgment under the direct method.
On the evidence of suspicious timing, Gracia’s charge of discrimination was
formally filed with the EEOC on December 1, 2008, see R. 1 at 7, and Fairhead fired
Gracia a mere four days later on December 5, 2008. DSOF ¶ 27. Fairhead, moreover,
testified that he knew, by the time he fired Gracia, that she had filed the EEOC charge
(after viewing the deposition testimony in the light most favorable to Gracia). See
Fairhead Dep. 92:5-11. That is sufficient evidence of suspicious timing. See Culver v.
Gorman & Co., 416 F.3d 540, 546 (7th Cir. 2005) (“Here, there is no question that [the
supervisor] knew of [the employee’s] complaints, and a mere 72 hours elapsed between
the time [the employee] first complained to [the supervisor] of discrimination and [the
supervisor’s] abrupt decision to terminate [the employee], rendering close temporal
proximity utterly transparent.”). Although evidence of suspicious timing and temporal
proximity is rarely dispositive to prove a causal link, Sitar v. Ind. Dep’t of Transp., 344
F.3d 720, 728 (7th Cir. 2003), it is still useful. And from Gracia’s point of view, this
timing is even more suspicious because of Sigmatron’s indulgence towards her after it
suspended her for two days and effectively placed her on probation on October 15,
2008. See Def.’s Exh. 9 at SMT-GRACIA0083 (warning Gracia not to “miss any
scheduled time in the next 90 days or immediate termination will result” (emphasis
26

added)). Despite being on thin ice, Gracia received only written and oral discipline and
was not immediately fired after she continued to perform poorly at work for the next
few weeks. See Def.’s Exh. 10 at SMT-GRACIA0092 (October 23 oral warning about
taking excessive breaks); Def.’s Exh. 11 at SMT-GRACIA0095 (October 30 written
warning for not having proper documentation visible on the assembly line); Def.’s Exh.
14 at SMT-GRACIA0096 (October 30 written warning for being ten minutes late
returning from lunch). Yet Sigmatron’s tolerance of her continued tardiness and
alleged poor performance suddenly changed just four days after Gracia filed her EEOC
charge.
More importantly, Gracia has also presented sufficient evidence of a factual
conflict over whether the decision to fire her was pretextual. Remember that Sigmatron
asserts that it fired Gracia after her friend, Eduardo Trujillo, saw that Gracia’s
assembly line workers were using lead-free solder on leaded circuit boards; Trujillo
confronted her but she did nothing, so he escalated the problem to Silverman and
Fairhead. DSOF ¶¶ 19-24. Specifically, after Trujillo confronted Gracia, she “did
nothing to stop the work and commented that ‘I have done this many times before and
nobody ever found out.’” Fairhead Memo. After Gracia confirmed Fairhead’s
understanding of the incident, Fairhead fired her for neglecting important customer
specifications and displaying an unprofessional cavalier attitude. DSOF ¶¶ 25-28. The
problem for Sigmatron now is that Gracia and Trujillo present a very different version
of what happened, one that the Court must credit in deciding Sigmatron’s motion for
summary judgment. According to Gracia, after Trujillo told her about the lead-free
27

solder, she told him, “I’m going to—I’m going to make sure that it’s done correctly.
We’re going to remove it, and we’re going to move it to the leaded.” Gracia Dep. 85:7-11.
She then stopped the employee from using lead-free solder and gave her lead-free
circuit boards to work on. Gracia Decl. ¶ 48. In Gracia’s view, using the wrong solder
was a frequent problem that had never gotten anyone fired before: “Well, we had issues
sometimes where, you know, mistakes happened and, you know, if something like that
happened, we would fix it. We would just start soldering everything leaded.” Gracia
Dep. 88:4-7; see also Gracia Decl. ¶ 43 (“The event which [Sigmatron] claims was the
reason for my termination was a minor error of a type which had happened previously
in the [Sigmatron] assembly plant in Elk Grove Village with no resulting discipline or
terminations.”). She also denied treating her responsibilities cavalierly by telling
Fairhead that the mistake was not a big deal: “I had told him [Fairhead] that we had
had that issue before and that before, you know, we would just solder leaded. I never
said it was okay. I said that we would just fix the problem.” Gracia Dep. 92:1-4
(emphasis added). Likewise, Trujillo testified that mixing solder types was a minor
error that frequently cropped up. In fact, according to Trujillo, he told Fairhead as
much:
Q:

What did he [Fairhead] ask you?

A:

That if Maria Gracia was using lead and lead-free products in one
particular board.

Q:

Okay. So that’s the question that Mr. Gr[eg] Fairhead had asked you?

28

A:

And I agreed with him because I believe everybody in the line, inspectors
in line, inspectors before wave, inspectors past wave, inspectors in quality
knew about it [mixing solder].8

Trujillo Dep. 17:17-18:1. And Trujillo denied even having the conversation with Gracia
in which she told him, “I have done this many times before and nobody ever found out,”
which is key dialogue quoted by Fairhead to explain why Fairhead fired Gracia. Id.
22:10-14; see also Fairhead Memo. So there is a significant factual dispute: Sigmatron
says it fired Gracia for not caring about a costly mistake, but Gracia (with help from
Trujillo) says that she did care about the mistake and fixed it, but was fired anyway
for a minor problem that had never before resulted in anyone else’s termination.
Ultimately, a reasonable jury that believes Gracia (and Trujillo) could find that
the reasons Sigmatron gave for firing her was simply pretext to retaliate against her,
especially when coupled with the timing of the firing. “Pretext means a lie, specifically
a phony reason for some action.” Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir.
2002) (internal quotation marks and citation omitted). A reasonable jury that believes
Gracia and Trujillo would find that Gracia had addressed the lead-free soldering issue
as soon as it was brought to her attention and was not being cavalier about her job
responsibilities. It would find that using lead-free solder on leaded circuit boards was
a common mistake and not nearly as serious as Sigmatron claimed it was. And it would
also believe Trujillo when he denied even having the conversation with Gracia that
Fairhead accused her of having in his termination memo. Having found those facts, the

8

“Wave” refers to a type of soldering machine in the assembly process. See Trujillo Dep.
8:19-24.

29

jury would then disbelieve Sigmatron’s reason for firing her (that she was cavalier in
the face of a costly mistake and intentionally neglected her duties) and find that the
reason was phony and a lie. From there, that jury would not have to leap far to find
that her EEOC charge was the but-for cause of her firing, especially given the short
four-day gap between those two events that abruptly changed Sigmatron’s previously
indulgent attitude toward her. To be clear, the Court is simply viewing this factual
dispute in the light most favorable to Gracia, as it must; the Court is not making a
credibility finding one way or another. That is a task for a jury, which is why
Sigmatron’s motion for summary judgment is denied on Gracia’s retaliation claim.
IV. Conclusion
For the reasons discussed above, Sigmatron’s motion for summary judgment [R.
40] is granted as to Gracia’s national-origin-based hostile work environment claim, but
denied as to her gender-based hostile work environment and retaliation claims. At the
next status hearing, which is accelerated from December 19, 2013 to November 7,
2013, at 8:30 a.m., the parties should be prepared to address the case schedule moving
forward, including whether a settlement conference is sensible.

ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: October 24, 2013
30