Swidnicki v. Brunswick Corporation
Filing
32
Memorandum Opinion and Order Signed by the Honorable Harry D. Leinenweber on 3/6/2014:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHERINE SWIDNICKI,
Case No. 12 C 3987
Plaintiff,
v.
Hon. Harry D. Leinenweber
BRUNSWICK CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Katherine Swidnicki (“Swidnicki”) brings this action
against her former employer, Brunswick Corporation (“Brunswick”),
alleging that she was discriminated against on the basis of her
national origin and gender, sexually harassed, and retaliated
against for reporting to a human resource manager that she had been
instructed by a supervisor not to record overtime hours she had
worked. Swidnicki seeks relief under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), 42 U.S.C.
§ 1981 (“Section 1981”), the Fair Labor Standards Act, 29 U.S.C.
§ 201, et seq. (“FLSA”), and the Illinois Human Rights Act, 775
Ill. Comp. Stat. 5 (“IHRA”).
judgment.
(ECF No. 15).
Brunswick has moved for summary
For the reasons stated herein, the Motion
is granted in part and denied in part.
I.
BACKGROUND
The background facts are derived principally from the parties’
Local Rule 56.1 submissions and are undisputed except where noted.
Swidnicki is a native of Poland and has resided in the United
States since emigrating with her family in the 1980s.
From 2008
until 2011, she worked as an Installation Analyst at Life Fitness,
a group within Brunswick that sells exercise equipment. Her duties
consisted primarily of arranging for third-party vendors to deliver
and install exercise equipment at customers’ locations.
Between 2008 and 2010, Swidnicki worked on a team supervised
by Brent Nichols (“Nichols”).
evaluation
from
Nichols
In 2009, Swidnicki received an
rating
her
overall
performance
“satisfactory,” the middle of five possible ratings.
as
Nichols’
evaluation offered positive comments and identified areas where he
believed Swidnicki’s performance could be improved.
For example,
Nichols stated that Swidnicki needed to work on her efficiency and
response time to issues with third-party logistics.
He further
noted that she worked late almost every day even though her
workload was “on the lower end,” and that she would benefit from a
“greater sense of urgency” and faster turnaround on her review of
certain audits.
In March 2010, Swidnicki was transferred to a team with a
different supervisor named Dan Terrien (“Terrien”).
In one of
their first meetings together, Terrien asked Swidnicki about her
nationality. He expressed surprise that she was working in an area
where “not a lot of Polish people” worked and stated that “a lot of
Polish people are in cleaning services.”
Terrien later mentioned
to Swidnicki that some vendors might have difficulty understanding
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her due to her accent.
On one occasion, he asked Swidnicki if she
needed a dictionary to “look up” what he was saying.
On another,
he stated that her “European accent” was “getting in the way” and
told her that she needed to practice her language skills.
Terrien
continued to make similar comments to Swidnicki about once per
month during the ten-month period he supervised her.
During
Swidnicki’s
a
meeting
first
name
in
on
the
a
fall
of
2010,
dry-erase board
Terrien
from
changed
“Kathy”
“Katyrzyna,” a misspelling of her birth name, “Katarzyna.”
to
This
disturbed Swidnicki because she always had used “Kathy” around the
workplace and she viewed Terrien’s changing of her name as an
attempt to upset or provoke her.
Swidnicki disagreed with Terrien’s management style and felt
that he was not providing her with enough assistance and that he
gave inconsistent direction.
She was bothered by the fact that he
sometimes directed her to enter incorrect information into the
company’s
tracking system
problems that arose.
and
later
would
blame
her
for
any
In addition, she felt slighted that she had
not been permitted to work using the company’s “new model” for
tracking
equipment
deliveries.
Despite
her
requests
to
be
transferred over to the new model, Terrien told her that he
preferred her working in the “classic model” because she knew “all
of the ins and outs” of that system.
On a more general level, Swidnicki felt intimidated by Terrien
because he often raised his voice and used profanity around the
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office.
He was less friendly with female employees and, on one
occasion, referred to a female technician based on the west coast
as being the equivalent of only “half a man.”
In July 2010, Swidnicki received a mid-year evaluation in
which Terrien stated that she had “done a great job reducing
storage” at vendors’ facilities, but noted that she struggled with
meeting deadlines and that she needed to do a better job of
cleaning up third-party inventory.
Terrien did not give Swidnicki
any specific rating, but Swidnicki perceived the review as being
negative and disagreed with Terrien’s criticism.
Although Swidnicki often felt that she needed to work overtime
in order to complete her work, Terrien told her that she should not
be putting in additional hours and expressed concern that she was
making “extra work” for herself.
When she did not stay and work
overtime, however, Terrien would criticize her for failing to
complete
her
work.
Terrien
also
told
Swidnicki
on
several
occasions not to report the overtime hours she worked.
In the fall of 2010, Swidnicki complained to Carol Stame
(“Stame”),
the
Director
of
Human
Resources,
instructions to her regarding overtime.
about
Terrien’s
Stame told Swidnicki that
she should record her overtime hours as permitted by law and
indicated that she would take up the matter with Terrien. However,
Swidnicki did not think Stame acted on her complaint and neither
Terrien nor Stame recall ever discussing the issue.
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Sometime
later,
Terrien
altered
the
team’s
seating
arrangement, moving Swidnicki next to a co-worker named Luis Davila
(“Davila”).
Davila routinely engaged in inappropriate behavior,
often making off-color sexual remarks to Swidnicki.
his conduct includes:
A sampling of
performing a Michael Jackson imitation
during which he grabbed his crotch; making repeated references to
his “schmeckel,” the Yiddish term for a small penis (he would say,
for example, “My schmeckel is so much bigger than these carrots,”
“My schmeckel is itching,” or “Kathy, do you want to taste my
schmeckel?”); stating that there were “ants in [his] pants” or that
there was a “party in [his] pants”; stating to Swidnicki that he
had “wet [his] crotch”; asking Swidnicki whether she wanted to feel
his “balls”; making suggestive remarks about having engaged in
homosexual relations with co-workers; stating to Swidnicki that he
had a long “shaft” and that he enjoyed eating “hairburgers,” a
vulgar reference to female genitalia; commenting that a hair he
found may have been a pubic hair and asking Swidnicki if it was
hers; suggesting to Swidnicki that she “give love” to a co-worker;
asking Swidnicki if she liked to “swallow”; whispering comments to
Swidnicki such as “I love you, Kathy.
it.
Don’t you love me back?
Say
Don’t you love me back?”; and pulling out his waistband to
look at his genitals while in front of Swidnicki and commenting “my
crotch is sweaty.”
Over time, Davila’s conduct grew incessant to the point where
he was making sexually explicit comments between 20 and 30 times
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per day.
Swidnicki and other employees often had to stop making
work-related telephone calls because of Davila’s loud remarks and
there were times when his comments were so crude that the whole
department, even those who usually laughed at his remarks, would go
silent.
Despite Swidnicki’s requests to stop, Davila persisted with
his behavior.
When Swidnicki complained to Terrien about Davila’s
conduct, Terrien stated that Davila simply was “letting off steam”
because he had been under pressure.
Swidnicki later brought her
concerns to Terrien’s supervisor, Mike Edwards (“Edwards”), but was
told that she needed to take up the issue with Terrien.
In
December
2010,
Terrien
and
Stame
issued
Swidnicki
a
Performance Deficiency Notice (“PDN”), identifying a number of
concerns about her work.
These included problems following the
proper logistics processing procedures, failure to submit invoice
approvals in a timely manner, poor time-management and inability to
meet deadlines, failure to follow-up with Terrien about documenting
time spent on various tasks, refusal to follow processes used by
the
rest
of
the
team,
insubordinate attitude.
failure
to
be
a
“team
player,”
and
The PDN also gave Swidnicki a time frame
within which she needed to show improvement in these areas.
Near the end of the year, Swidnicki went on medical leave to
have surgery on her hand.
Although she was scheduled to resume
work on January 17, 2011, she did not return.
Swidnicki claims
that, while on leave, she suffered an anxiety attack over the
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thought of returning to work.
She secured a note from a family
doctor excusing her from work and began seeing a psychologist.
Despite failing to return to work, Swidnicki continued to receive
her full salary and benefits for more than six months. Thereafter,
in July 2011, Swidnicki was terminated after having been informed
by
Brunswick
that
her
benefits
under
the
company’s
salary
continuation policy had been exhausted.
II.
LEGAL STANDARD
Summary judgment is appropriate where the moving party “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
jury to find for the non-moving party.
Inc., 477 U.S. 242, 248 (1986).
affect the outcome of the suit.
Anderson v. Liberty Lobby,
A fact is material if it might
Id.
If the moving party satisfies
its burden, the non-movant must present evidence sufficient to
demonstrate that a genuine factual dispute exists.
See, Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986).
In doing so, the non-moving party “must do more than
show that there is some metaphysical doubt as to the material
facts.” Sarver v. Experian Info. Sys., 390 F.3d 969, 970 (7th Cir.
2004). Rather, it must demonstrate “through specific evidence that
a triable issue of fact remains on issues for which the nonmovant
bears the burden of proof at trial.”
458, 463-64 (7th Cir. 2009).
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Knight v. Wiseman, 590 F.3d
III.
A.
At
the
outset,
ANALYSIS
State Law Claims
Brunswick
argues
that
Swidnicki’s
discrimination and harassment claims under the IHRA are barred from
review because she failed to exhaust her administrative remedies
with the Illinois Human Rights Commission (“Commission”) prior to
bringing this suit.
The IHRA vests the Commission with exclusive
authority to hear complaints seeking redress for alleged violations
under the Act.
Jimenez v. Thompson Steel Co., Inc., 264 F.Supp.2d
693, 695 (N.D. Ill. 2003) (citing Mein v. Masonite Corp., 485
N.E.2d 312, 315 (Ill. 1985)).
Judicial review of such claims is
available only after the Commission has issued a final order on a
complaint.
Flaherty v. Gas Research Institute, 31 F.3d 451, 458
(7th Cir. 1994).
Swidnicki does not allege that she initiated any proceedings
before the Commission or received a final order on her complaint.
Rather, she contends that her filing of a charge with the Equal
Opportunity
subsequent
Employment
issuance
of
Commission
a
Right
(“EEOC”)
to
Sue
and
Letter
the
EEOC’s
satisfied
her
obligation to exhaust her administrative remedies because of a
workshare
Commission.
agreement
that
exists
between
the
EEOC
and
the
Although Swidnicki is correct that the EEOC and the
Commission have a workshare agreement, “a right to sue letter from
the EEOC cannot be used as a substitute for a final order from the
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Commission.”
Davis v. Metro. Pier & Exposition Auth., No. 11 C
9018, 2012 WL 2576356, at *9 (N.D. Ill. July 3, 2012).
Because Swidnicki has not alleged that she received a final
order from the Commission, the Court lacks jurisdiction over her
state law claims. Accordingly, Counts VIII and IX of her Complaint
are dismissed.
B.
Discrimination
Swidnicki’s Complaint charges Brunswick with national origin
and
gender
discrimination
Section 1981.
in
violation
of
Title
VII
and
Because claims brought under Section 1981 are
evaluated on summary judgment under the same standards as Title VII
claims, Swidnicki’s discrimination claims may be reviewed together.
See, Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 641 n.5
(7th Cir. 2005).
Title VII “prohibits employment discrimination on the basis of
race,
color,
religion,
sex,
or
national
origin.”
Ricci
v.
DeStefano, 557 U.S. 557, 557 (2009) (citing 42 U.S.C. § 2000e2(a)).
Unlawful discrimination may be demonstrated either through
direct or circumstantial evidence of intentional discrimination, or
indirectly
through
a
subset
of
circumstantial
evidence
that
conforms to the burden-shifting framework set forth by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03
(1973).
See, Sylvester v. SOS Children’s Vills. Ill., Inc., 453
F.3d 900, 902-03 (7th Cir. 2006) (explaining the distinctions
- 9 -
between direct and indirect methods of proof).
Swidnicki appears
to proceed under both methods.
1.
Direct Method
Under the “direct” method of proof, a plaintiff must offer
either “direct evidence of animus – the so-called ‘smoking gun’ –
or
circumstantial
evidence
which
establishes
a
discriminatory
motive on the part of the employer through a longer chain of
inferences.”
Van Antwerp v. City of Peoria, Ill., 627 F.3d 295
(7th Cir. 2010). Direct evidence is rare and “essentially requires
an admission by the decision-maker that his actions were based on
the prohibited animus.”
498, 504 (7th Cir. 2004).
“suspicious
timing,
Rhodes v. Ill. Dep’t of Transp., 359 F.3d
Circumstantial evidence may include (1)
ambiguous
oral
or
written
statements,
or
behavior toward or comments directed at other employees in the
protected
group,”
statistical,
that
(2)
“evidence,
similarly
whether
situated
or
not
employees
rigorously
outside
the
protected class received systematically better treatment,” or (3)
“evidence that the employee was qualified for the job in question
but passed over in favor of a person outside the protected class
and the employer’s reason is a pretext for discrimination.”
Good
v. Univ. of Chicago Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012).
Swidnicki’s evidence of discrimination centers entirely on
Terrien’s conduct – specifically, his comments about vendors having
difficulty understanding her accent, his remarking on the fact that
many Polish people work “in cleaning services,” his decision to
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change her name on a dry-erase board from an Americanized nickname
to her full Polish name, his refusal to allow her to use the
company’s new system for tracking deliveries, and his off-handed
comment about a certain female employee being the equivalent of
only “half a man.”
Even assuming that this conduct is sufficient
proof of Terrien’s alleged animosity toward Swidnicki’s national
origin and gender, there is no evidence suggesting that Terrien was
at
all
involved
in
Brunswick’s
decision
to
terminate
her
employment.
Derogatory remarks made by a non-decisionmaker or someone
without
influence
generally
discriminatory intent.”
“do
not
suffice
as
evidence
of
Lucas v. Chicago Trans. Auth., 367 F.3d
714, 730 (7th Cir. 2004).
Although Swidnicki apparently “felt”
that Terrien might have played a role in her termination, (Pl.’s
Resp. to Def.’s Stmt. of Uncontroverted Facts (“Pl.’s Resp. Stmt.”)
¶ 47, ECF No. 23), her belief in that regard is purely speculative
and, in any event, unsupported by any facts in the record.
It is
true that Terrien gave Swidnicki an arguably negative performance
evaluation and later issued her a PDN, but there is no indication
that he influenced Brunswick’s decision to fire her, whether
through his reviews of her work (however unfavorable they may have
been), the issuance of the PDN, or some other means.
Nor is there
evidence that Terrien’s alleged discriminatory animus was intended
to cause an adverse employment action or was a proximate cause of
Swidnicki’s
termination.
See,
Staub
- 11 -
v.
Proctor
Hosp.,
---
U.S. ---, 131 S.Ct. 1186, 1194 (2011).
Rather, the undisputed
facts show that the decision to terminate Swidnicki’s position came
only as a result of her exhausting her available leave time under
Brunswick’s policies more than six weeks after she failed to return
to work.
Because Swidnicki has identified no discriminatory
behavior in connection with Brunswick’s decision to fire her, her
claims fail under the direct method of proof.
2.
Indirect Method
To proceed under the “indirect” method of proof, the plaintiff
first must establish a prima facie case of unlawful discrimination.
Fane v. Locke Reynolds LLP, 480 F.3d 534, 538 (7th Cir. 2007).
In
setting forth a prima facie case, an employee must demonstrate that
(a) she is a member of a protected class, (b) her job performance
met the employer’s legitimate expectations, (c) she was subjected
to
an
adverse
employees
favorably.
employment
outside
of
the
action,
and
protected
(d)
class
similarly
were
situated
treated
more
Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 511
(7th Cir. 2012).
If the plaintiff successfully makes out a prima
facie case, “a presumption of discrimination arises, and the
employer must articulate a legitimate, nondiscriminatory reason for
its employment action.”
Moser v. Ind. Dep’t of Corr., 406 F.3d
895, 900 (7th Cir. 2005).
Finally, if the employer provides a
nondiscriminatory rationale for its conduct, the burden shifts back
to the plaintiff to prove that the employer’s proffered explanation
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merely was a pretext for discrimination.
Stockett v. Muncie Ind.
Trans. Sys., 221 F.3d 997, 1001 (7th Cir. 2000).
The first two elements of Swidnicki’s prima facie case are not
in dispute.
(Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s
Mem.”) at 3-4, ECF No. 16).
Brunswick contends, however, that
Swidnicki is incapable of demonstrating either that she was subject
to any adverse employment action or that any similarly situated
employees received more favorable treatment.
(Id. at 4-7).
Without question, termination is an adverse employment action.
O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004).
However, Swidnicki has failed to present evidence regarding any
similarly situated non-Polish employee who engaged in comparable
conduct and was not fired.
whose
performance,
A similarly situated employee is one
qualifications,
and
conduct
are
directly
comparable to the plaintiff’s in “all material respects.” Dandy v.
United Parcel Serv., Inc., 388 F.3d 263, 274 (7th Cir. 2004).
Although a comparator need not be identical to the plaintiff, he or
she must at least have been subject to the same standards or
policies
and
seriousness.”
engaged
in
similar
misconduct
of
“comparable
Coleman v. Donahoe, 667 F.3d 835, 848-850 (7th Cir.
2012). Because Swidnicki has not identified any similarly situated
non-Polish employee who failed to return to work after exhausting
available leave time (or engaged in similar conduct) and received
more favorable treatment, she consequently cannot establish a prima
- 13 -
facie case of discrimination based on Brunswick’s termination of
her position.
Swidnicki argues that her termination was not the only adverse
employment
action
she
was
subjected
to
while
at
Brunswick.
Specifically, she contends that she suffered adverse action after
Terrien refused to allow her to use the company’s new computer
system and, later, when he issued her a PDN following an allegedly
negative mid-year performance review.
However, “not everything
that makes an employee unhappy is an actionable adverse action.”
Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 780 (7th Cir.
2007) (citation omitted).
Rather, the employer’s action must be
“materially adverse” and cause “more than a mere inconvenience or
an alteration of job responsibilities.”
Kersting v. Wal-Mart
Stores, Inc., 250 F.3d 1109, 1115 (7th Cir. 2001).
Thus, classic
examples of adverse employment action include “termination of
employment, a demotion evidenced by a decrease in wage or salary,
a less distinguished title, a material loss of benefits, [or]
significantly diminished material responsibilities.” Hottenroth v.
Village of Slinger, 388 F.3d 1015, 1029 (7th Cir. 2004).
Although Swidnicki may have felt that Terrien was holding her
back by not placing her on the company’s new computer system, which
she believed was “the up and coming thing at Brunswick,” (Pl.’s
Opp. Mem. at 15), there is no evidence that his decision diminished
her
job
responsibilities
in
any
material
negatively affected her career prospects.
- 14 -
way
or
otherwise
While the Seventh
Circuit has held that an adverse action may be established based
upon an employer’s denial of a valuable work opportunity, it did so
under circumstances where the plaintiff was refused permission to
attend a “once in a lifetime” training event that caused her to
lose the potential for “many hours of overtime” and would have
advanced
her
career
opportunities for her.
653-54 (7th Cir. 2007).
substantially
by
opening
unique
work
Lewis v. City of Chicago, 496 F.3d 645,
Here, there is nothing to suggest that
Swidnicki was being passed over on any sort of exclusive career
opportunity.
Indeed, as one of Swidnicki’s co-workers explained,
the new model did not even “go live” until June 2011 – six months
after Swidnicki left Brunswick – and employees were being trained
on the system one at a time.
ECF No. 21-6).
(Pl.’s Ex. HH (Junge Dep.) at 32,
Terrien told Swidnicki that she would be trained
“soon,” (Def.’s Ex. A (Swidnicki Dep.) at 115, ECF No. 15-1), and
there is no indication that Swidnicki eventually would not have
been transitioned over to the new model prior to it going live.
Moreover, Terrien stated to Swidnicki that he was waiting to
transfer her to the new system because he valued her skills in the
classic model, (see, Def.’s Ex. A (Swidnicki Dep.) at 115, ECF
No. 15-1), and Swidnicki has offered no evidence that this plainly
legitimate explanation was a pretext for discrimination.
As
for
Terrien’s
allegedly negative
mid-year
performance
evaluation and the issuance of the PDN, neither were adverse
employment actions.
At the outset, “unfair reprimands or negative
- 15 -
performance
evaluations,
unaccompanied
by
some
tangible
consequence, do not constitute adverse employment actions.”
v. Lau Indus., Inc., 257 F.3d 723, 729 (7th Cir. 2001).
job
Grube
Thus, even
to the extent that Terrien’s evaluation of Swidnicki may have
contained criticism of her performance, it cannot be considered a
materially adverse action because it had no apparent effect on the
terms of Swidnicki’s employment.
Similarly, the PDN did not alter Swidnicki’s status as an
employee and was not an adverse action.
Swidnicki analogizes the
PDN she received to a form of “probation,” following which her
termination would have been inevitable.
Although the Seventh
Circuit has in the past suggested that placing an employee on
probation “might” constitute an adverse employment action, see,
e.g., Thompson v. Mem. Hosp. of Carbondale, 625 F.3d 394, 407 (7th
Cir. 2010), the PDN in this case does not rise to that level.
In Thompson, for example, the court was satisfied that the
plaintiff had presented sufficient evidence of an adverse action
where his employer placed him on a probationary status under which
his work schedule was altered, additional testing was imposed as a
condition of continued employment, he was assigned to perform
certain additional duties, and he was not permitted to work absent
continuous supervision.
Thompson, 625 F.3d at 399-408.
The court
cautioned, however, that it was “not hold[ing] that any imposition
of a probationary period constitutes an adverse employment action.”
Id. at 408.
- 16 -
In contrast to the probationary regime that had been imposed
on the plaintiff in Thompson, the PDN in this case involved no
additional employment conditions and did not alter Swidnicki’s job
duties in the least.
Rather, the PDN merely outlined a number of
alleged deficiencies in her performance and set forth a timeline
within which she was to demonstrate improvement.
In this respect,
the PDN is more closely akin to what have sometimes been termed
“performance improvement plans,” which do not constitute adverse
employment action absent any tangible change in employment status.
See,
Cole
v.
(improvement
Illinois,
plan
562
that
F.3d
did
812,
not
816
deprive
(7th
Cir.
plaintiff
2009)
of
“responsibility, hours, pay, or any other relevant accoutrement of
her position” was not an actionable adverse action).
Because the
basic terms and conditions of Swidnicki’s employment at Brunswick
were unaffected by the PDN, its issuance was not an adverse
employment action.
Although Swidnicki’s failure to establish a prima facie case
is enough to conclude the McDonnell Douglas analysis, it can be
noted as well that Swidnicki has presented no evidence to support
her allegation that Brunswick’s stated reason for firing her was
pretextual.
Swidnicki does not dispute that she failed to return
to work after expending all of her leave time available under
Brunswick’s
policies
and,
as
previously
discussed,
she
has
identified nothing that links Terrien’s allegedly discriminatory
conduct to Brunswick’s decision to fire her. Thus, even if she had
- 17 -
set forth a properly supported prima facie case, her discrimination
claims still would fail.
Accordingly, summary judgment is granted in favor of Brunswick
on Swidnicki’s discrimination claims.
C.
FLSA Retaliation
In addition to her discrimination claims, Swidnicki alleges
that Terrien retaliated against her for reporting him to Stame
after he allegedly directed her not to record overtime hours she
had
worked.
Swidnicki
argues
that
Terrien’s
retaliation
is
evidenced by his “increased badgering” of her, his refusal to allow
her to use the company’s new delivery system, his making of
allegedly
false
statements
in
connection
with
her
PDN,
Brunswick’s ultimate decision to terminate her employment.
and
(Pl.’s
Mem. in Opp. to Def.’s Mot. for Summ. J. (“Pl.’s Opp. Mem.”) at 1419, ECF No. 20).
The FLSA forbids employers from discharging or otherwise
discriminating
against
an
employee
who
files
a
complaint,
institutes a proceeding, or testifies in a proceeding regarding a
complaint made under the Act.
29 U.S.C. § 215(a)(3).
Oral
complaints made to company officials regarding FLSA violations are
protected under the Act’s anti-retaliation provision.
Kasten v.
Saint-Gobain Performance Plastics Corp., --- U.S. ---, 131 S.Ct.
1325 (2011).
In order to establish a prima facie case of retaliation, a
plaintiff must show that (1) she engaged in protected activity
- 18 -
under the FLSA, (2) she suffered an adverse employment action, and
(3) there was a causal link between the two.
Bradford v. Village
of Lombard, No. 11 C 37, 2012 WL 1655966, at *2 (N.D. Ill. May 10,
2012) (citing Stutler v. Ill. Dept. of Corr., 263 F.3d 698, 702
(7th Cir. 2001) and Scott v. Sunrise Healthcare Corp., 195 F.3d
938, 940 (7th Cir. 1999)).
Here, Swidnicki fails to establish any
causal connection between her reporting of Terrien to Stame and her
eventual termination.
Although Swidnicki contends that Terrien retaliated against
her by making her life a “living hell” after she brought her
overtime concerns to Stame, (Pl.’s Stmt. of Add. Facts (“Pl.’s
Stmt.”) ¶ 95, ECF No. 24), there is no evidence that Terrien was
aware that Swidnicki had reported him. Indeed, neither Terrien nor
Stame could recall ever having discussed Swidnicki’s complaint
about overtime and Swidnicki herself alleges that Stame never acted
on her complaint.
Terrien’s
(Id.)
lack
of
knowledge
is
fatal
to
Swidnicki’s
retaliation claim, however, since it is axiomatic that “an employer
cannot retaliate when it is unaware of any complaints.”
Sitar v.
Indiana Dept. of Transp., 344 F.3d 720, 727. Because Swidnicki has
failed to demonstrate any causal link between her complaint and her
termination,
summary
retaliation claim.
judgment
is
granted
on
Swidnicki’s
FLSA
See, e.g., Larsen v. Club Corp. of America,
Inc., 855 F.Supp. 247, 253 (N.D. Ill. 1994) (plaintiff failed to
establish causal link between her involvement in FLSA protected
- 19 -
activity
and
her
employer’s
adverse
action
when
the
alleged
retaliator was unaware of plaintiff’s participation in protected
activity).
D.
Hostile Work Environment
1.
Swidnicki
alleges
Sexual Harassment
that
Davila’s
persistent
behavior created a hostile work environment.
inappropriate
“A sexually hostile
or abusive work environment is a form of sex discrimination under
Title VII.”
E.E.O.C. v. Mgmt. Hospitality of Racine, Inc., 666
F.3d 422, 432 (7th Cir. 2012).
To survive summary judgment on a
hostile work environment claim based on sexual harassment, a
plaintiff must show that:
“(1) she was subjected to unwelcome
conduct of a sexual nature; (2) the conduct was severe or pervasive
enough to create a hostile work environment; (3) the conduct was
directed at her because of her sex; and (4) there is a basis for
employer liability.”
Roby v. CWI, Inc., 579 F.3d 779, 784 (7th
Cir. 2009).
Swidnicki’s allegations concerning the daily barrage of sexual
comments
that
she
received
from
Davila
are
disturbing.
By
Brunswick’s own concession, Davila’s conduct was “not appropriate
for any workplace.”
(Def.’s Mem. at 14).
Nonetheless, Brunswick
argues that Davila was a mere “equal opportunity harasser” and that
Swidnicki therefore cannot show that Davila’s bad behavior was
directed at her because of her gender.
- 20 -
Title
‘bisexual’
VII
“does
harasser
not
.
.
cover
.
the
because
discriminating on the basis of sex.
‘equal
such
opportunity’
a
person
is
or
not
He is not treating one sex
better (or worse) than the other; he is treating both sexes the
same (albeit badly).”
Cir.
2000)
attempting
(emphasis
to
show
Holman v. Indiana, 211 F.3d 399, 403 (7th
and
that
parentheticals
Davila’s
in
conduct
original).
was
unrelated
In
to
Swidnicki’s gender, Brunswick relies on a number of comments in
which Davila allegedly referred to having sexual relations with
certain
male
co-workers.
Although
Davila’s
sexually-charged
comments sometimes concerned male co-workers and, on occasion, were
remarks of the more general type that might have been addressed to
the whole office, the majority of his comments were directed solely
at Swidnicki.
In Kampmier v. Emeritus Corp., the Seventh Circuit found
harassing conduct aimed at both men and women to be actionable
where the female plaintiff was subjected to harassment that was
“far more severe and prevalent” than the conduct directed at other
male co-workers.
(7th Cir. 2007).
Kampmier v. Emeritus Corp., 472 F.3d 930, 940-41
In such circumstances, the court stated, the
plaintiff could “at the least . . . raise[] a genuine issue of
material fact as to whether [the] alleged harassment was because of
[her] sex.”
Id.
Davila’s comments toward Swidnicki can be characterized as
significantly more severe and prevalent than those that may have
- 21 -
been directed at male employees.
While Davila may have made
occasional homosexual references concerning male co-workers, there
is no evidence that any of those comments were directed toward male
employees.
In
fact,
many
appear
to
have
been
addressed
Swidnicki, perhaps in a juvenile effort to disgust her.
event,
Davila’s
comments
regarding
other
male
to
In any
employees
were
blander (compare, for example, “Bob doesn’t like me anymore, Brian
still loves me” with “Kathy, do you like to swallow” or “Kathy, do
you want to taste my schmeckel?”) and far less frequent than the
repeated unsavory sexual remarks he made toward Swidnicki.
In
these circumstances, it would not be unreasonable for a jury to
conclude that Swidnicki was harassed because of her sex.
Brunswick also argues that Davila’s alleged conduct was not so
“severe or pervasive” that it transformed the workplace into an
objectively hostile environment. To be actionable under Title VII,
the harassing conduct must be either severe or pervasive, although
it need not be both.
679,
686
(7th
Cir.
See, Turner v. The Saloon, Ltd., 595 F.3d
2010).
In
addition,
the
plaintiff
must
demonstrate that her work environment was both subjectively and
objectively offensive – in other words, “one that a reasonable
person would find hostile or abusive, and one that the victim in
fact did perceive to be so.”
Cerros v. Steel Techs., Inc., 288
F.3d 1040, 1044 (7th Cir. 2002).
It
is
undisputed
that
Swidnicki
subjectively
Davila’s conduct to be unwelcome and severe.
- 22 -
perceived
The only question is
whether Davila’s conduct was objectively offensive. “[D]rawing the
line between what is and is not objectively hostile is not always
easy.” Turner, 595 F.3d at 686 (quotation marks omitted). Conduct
involving episodes of inappropriate touching undoubtedly is among
the more serious types of abuse, see, Worth v. Tyler, 276 F.3d 249,
268 (7th Cir. 2001), but sexual harassment also can and does occur
in the absence of any unwanted physical contact.
Boumehdi v.
Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007) (summary
judgment inappropriate where employer “made at least eighteen
sexist or sexual comments in less than a year’s time and that
similar comments were made ‘very often’”).
Brunswick
seeks
to
dismiss
Davila’s
“sophomoric,” but ultimately harmless.
conduct
as
being
Certainly, employees are
expected to be able to withstand “the occasional vulgar banter,
tinged
with
sexual
innuendo,
of
coarse
or
boorish
workers.”
Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir.
1995).
The conduct that is alleged here, however, was far from
“occasional” and, in many cases, exceeded mere vulgarity.
Davila
made
asking
repeated
references
to
his
Swidnicki to hold or “taste” them.
genitals,
including
He whispered inappropriate
comments to her and, on more than one occasion, he disturbingly
pulled out the waistband of his pants so that he could look at his
genitals while standing in front of her.
Making between 20 and 30
sexually-charged comments each day, his conduct was nothing short
- 23 -
of unrelenting.
A jury properly could conclude that a reasonable
person would find this type of environment to be offensive.
Brunswick relies extensively on this Court’s decision in
Hampton v. Potter, No. 01 C 9077, 2003 WL 22290404 (N.D. Ill.
Oct. 3, 2003), which granted summary judgment on a claim based upon
conduct Brunswick believes to have been more extreme.
In Hampton,
the plaintiff complained that the alleged harasser made lewd tongue
gestures at her once every other week, brought a book about oral
sex to work, asked the plaintiff if he could touch her breasts,
blew into the telephone when she answered it, and once brushed a
plastic mail tub against her buttocks.
Id. at *5.
The frequency
of a harasser’s alleged offensive behavior, however, is highly
relevant to an assessment of its impact, Baskerville, 50 F.3d at
431, and these “infrequen[t]” incidents were spread across a period
of six years.
Hampton, 2003 WL 22290404, at *6.
In contrast,
Davila’s conduct was near-constant and persisted for many months.
By at least one other co-worker’s account, his comments were
extraordinarily disruptive, (Pl.’s Resp. Stmt. ¶¶ 164-66), and
there is ample evidence upon which a reasonable jury could conclude
that they were severe or pervasive.
Therefore, there is, at a
minimum, a genuine factual question as to whether Davila’s conduct
created an objectively hostile work environment.
See, e.g.,
E.E.O.C. v. Continental Airlines, Inc., No. 04 C 3055, 2006 WL
14510, at *10-11 (N.D. Ill. Jan. 3, 2006) (summary judgment denied
where employer made fifteen to twenty gender-related comments in a
- 24 -
year).
For this reason, summary judgment on Swidnicki’s sexual
harassment claim is denied.
2.
National Origin Discrimination
Swidnicki alleges that she was subjected to a hostile work
environment based upon Terrien’s alleged animus toward her national
origin.
Brunswick takes issue with the fact that her complaint
omits any mention of such a claim, but a plaintiff ordinarily is
not required to plead specific legal theories where the defendant
has fair notice of the types of claims the plaintiff is pursuing.
See, Jajeh v. County of Cook, 678 F.3d 560, 567 (7th Cir. 2012).
In
any
event,
the
point
is
not
worth
exploring
Swidnicki’s claim clearly is without merit.
further,
as
Even when viewed in
the light most favorable to Swidnicki, Terrien’s conduct does not
approach what reasonably might be considered severe or pervasive
behavior.
The handful of tepid comments about her accent, the
remark about Polish people working in cleaning services, and the
isolated incident when Terrien referred to Swidnicki by her birth
name all are so insignificant that no reasonable juror could find
this conduct to be objectively offensive.
Accordingly, summary
judgment is granted in favor of Brunswick on Swidnicki’s national
origin hostile work environment claim.
E.
Constructive Discharge Claim
Finally, Swidnicki alleges that conditions at Brunswick were
so intolerable that she effectively was forced to resign.
often is
referred
to
as
a
“constructive
- 25 -
discharge.”
This
Absent
extraordinary
circumstances,
employees
are
expected
to
remain
employed while seeking redress for alleged workplace violations.
Witte v. Wisc. Dep’t of Corr., 434 F.3d 1031, 1035-36 (7th Cir.
2006).
Thus, to prevail on a constructive discharge claim, an
employee must show that “quitting was the only way [she] could
extricate herself from the intolerable conditions.”
Indiana Univ., 276 F.3d 301, 315 (7th Cir. 2001).
Gawley v.
In doing so the
plaintiff is required to “demonstrate a work environment that is
even
more
egregious
than
that
needed
for
a
hostile
work
environment” and one that “from the standpoint of a reasonable
employee, had become unbearable.”
Thompson v. Mem’l Hosp. of
Carbondale, 625 F.3d 394, 401-02 (7th Cir. 2010).
“[I]t is difficult for a plaintiff to show constructive
discharge.” Cooper-Schut v. Visteon Automotive Sys., 361 F.3d 421,
428
(7th
Cir.
2004).
Although
Swidnicki
has
demonstrated
sufficient evidence of a hostile work environment to proceed beyond
summary judgment on her sexual harassment claim, she has not met
the higher standard of showing that her work conditions objectively
were unbearable. Constructive discharge typically is found only in
cases involving threats of physical harm or truly outrageous
emotional abuse.
See, e.g., Taylor v. W. & S. Life Ins. Co., 966
F.2d 1188, 1191 (7th Cir. 1992) (constructive discharge where boss
held a pistol to plaintiff’s head); Brooms v. Regal Tube Co., 881
F.2d 412, 417 (7th Cir. 1989) (human resource manager grabbed
plaintiff and threatened to kill her); Porter v. Erie Foods Int’l,
- 26 -
Inc., 576 F.3d 629, 640 (7th Cir. 2009) (presence of multiple
nooses in the workplace and implied threats of physical violence).
Davila’s
harassment,
even
if
highly
offensive
and
extremely
pervasive, simply is not the type of conduct that would justify a
reasonable person to feel they had no other choice but to quit.
Although a constructive discharge may also occur when “an
employer
acts
in
a
manner
so
as
to
have
communicated
to
a
reasonable employee that she will be terminated,” Chapin v. FortRohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010), Swidnicki has
made no showing that Brunswick ever communicated to her that she
would be fired.
Swidnicki may have believed that once she had been
issued the PDN her fate at Brunswick had all but been sealed, but
there
is
no
evidence
to
suggest
that
this
was
the
case.
Accordingly, summary judgment on Swidnicki’s constructive discharge
claim is granted.
IV.
CONCLUSION
For the reasons stated herein, Brunswick’s Motion for Summary
Judgment [ECF No. 15], is granted in part and denied in part.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:3/6/2014
- 27 -
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