Garcia v. Complete Building Maintenance Co., et al.
Filing
70
MEMORANDUM Opinion and Order Signed by the Honorable Arlander Keys on 2/14/2014. Mailed notice(tlp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RODRIGO GARCIA,
Plaintiff,
)
)
)
v.
)
)
COMPLETE BUILDING MAINTENANCE )
CO., and BILL ANDERSON,
)
Defendants.
)
)
)
12-CV-4891
Magistrate Judge Arlander Keys
Memorandum Opinion and Order
Currently before the Court is Defendants’ motion for
summary judgment [Dkt #48].
Plaintiff, Rodrigo Garcia (“Mr.
Garcia”), filed a five-count amended complaint against
Defendants, Bill Anderson (“Mr. Anderson”) and Complete Building
Maintenance Co. (“Complete”), alleging that Defendants subjected
him to a racially hostile working environment; fired him because
of his race or because he complained of race harassment; and
fired him because he complained to law enforcement about another
foreman’s criminal conduct.
Defendants argue that the
undisputed facts demonstrate that Mr. Garcia’s termination had
nothing to do with race or retaliation; instead, they argue he
was terminated on the basis of Complete’s financial situation
and his lack of productivity as a foreman.
forth below, Defendants’ motion is granted.
1
For the reasons set
Procedural History
On July 13, 2012, Plaintiff filed his amended complaint
against Defendants. [dkt #15].
Defendant Complete answered Mr.
Garcia’s Complaint and pled affirmative defenses, including, but
not limited to, failure to state a claim upon which relief can
be granted and that Plaintiff’s employment was terminated for
legitimate, non-discriminatory reasons. [dkt #16].
Defendant
now moves this Court to enter an order granting summary judgment
in its favor, arguing that Mr. Garcia cannot establish a genuine
issue of material fact that a reasonable jury could resolve in
his favor. (Defs.’ Reply at p. 1).
The parties have consented
to proceed before this Court pursuant to 28 U.S.C. § 636(c)(1).
[dkt #43].
Factual Background
The facts herein are drawn from the parties’ Local Rule
56.1 submissions. [dkt #48, 55, 56, 61].
Each paragraph of the
Local Rule 56.1 submissions must refer to the “affidavits, parts
of the record, and other supporting materials” that substantiate
the asserted facts.
Local Rule 56.1(a)(3); F.T.C. v. Bay Area
Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005).
Most
of the underlying facts of this case are agreed to and
undisputed; it is noted when the parties disagree.
Complete is a commercial roofing company that employs its
construction personnel on a seasonal basis; employees generally
2
apply for and receive unemployment during the winter months, and
reapply for work at Complete in early spring. (Defendant’s Local
Rule 56.1 Filing (“Def. St.”), ¶¶ 1-2).
Mr. Garcia began his
employment with Complete in 1989 as a laborer performing roofing
work. (Id. at ¶ 13).
Mr. Garcia is of Mexican national origin,
or Hispanic. (Plaintiff’s Response to Defendant’s Local Rule
56.1 Filing (“Pl. Resp”), ¶4).
Mr. Garcia enjoyed the financial
stability that the work provided, and the seasonal layoff
allowed him to return to his native Mexico once a year to be
with his wife and children for a few months. (Plaintiff’s Local
Rule 56.1 Add'l Facts (“Pl. Add’l. St.”), ¶32).
Eventually, Mr.
Garcia’s wife and children immigrated to the United States, and
his children – once they reached the age of eighteen – began
working alongside him at Complete.
(Pl. Add’l. St., ¶33).
After his foreman at the time, Al Berlanga, was unable to
return to work due to illness, Mr. Garcia was promoted to the
position of foreman by Bob Gianatasio in 1996. (Def. St., ¶14).
Bill Anderson recommended the promotion along with Bob Majka.
Id. When Mr. Garcia worked for Complete as a foreman, he
supervised a crew of approximately eight to ten workers. (Pl.
Add’l. St., ¶32).
Mr. Garcia’s personnel file reveals not a
single instance of misconduct or discipline.
3
(Id. at 33).
Mr. Garcia claims that Complete paid him less than
similarly-situated non-Hispanic foremen. (Def. St., ¶9).
Mr.
Garcia admits, however, that he did not know whether the nonHispanic foremen who were paid a higher wage were paid so
because of longer tenure or not. Id.
The rates of pay and years
of service for foremen at the time of Mr. Garcia’s termination
were as follows:
Foreman Name
Race
Hourly Rate
(2008)
Hire Date
Promotion Date
Caucasian
$39.90
8/18/1976
1981
African-Amer.
$35.00
4/26/1977
1985
Robin Mildebrath
Caucasian
$32.70
6/30/1980
1983
Francisco Herrera
Hispanic
$30.70
8/4/1980
1994
Eusebio Llanes
Hispanic
$22.70
2/17/1984
2000
Pedro Llanes
Hispanic
$28.30
5/11/1987
1994
Martin Alvear
Hispanic
$22.60
3/21/1989
2003
Rodrigo Garcia
Hispanic
$27.10
5/23/1989
1996
Tab Rand
Marlin Thomas
Id.
In 2008, C o m p l e t e cl aim s th at , due t o the economic
recession and substantially reduced jobs and revenue, which
jeopardized Complete's ability to remain in operation, only
one crew received a bonus - Marlin Thomas' crew.
¶12).
(Def. St.,
Mr. Thomas (African-American) and his crew (Hispanic)
received a "bonus" because they traveled to and worked at an
4
out-of-state jobsite for an extended period of time. Id.
Mr.
Garcia acknowledged the economic recession of 2008, and admits
that he did not know w h e t h e r other foremen received a bonus
in 2008. Id.
Also in 2008, Mr. Gianatasio decided, along with Paul
Smith, the majority owner of Complete, that due to reduced work
orders and substantially reduced revenue, in order to remain in
business, Complete management needed to urgently and
substantially reduce their salaries.
(Id. at 16).
The
reductions ranged from 80% (for Paul Smith); approximately 40%
for Mr. Gianatasio, Mr. Anderson and Mr. Majka, to 50% for Russ
Streeter and Richard Willix (Sales), 30% Paul Smith, Jr.
(Service), and 12% for Thomas Sipolt (Estimator).
Id.
The pay
decreases did not affect any of Complete’s hourly employees and
did not affect any Hispanic or Mexican employees.
Id.
At
around the same time that it was determined that Complete
management needed to accept substantial reductions in pay, it
was also decided that it was necessary to reduce the number of
production crews from seven to six to ensure that the crews
employed by Complete had enough work. (Id. at 17).
Mr. Gianatasio made the decision that Mr. Garcia was the
foreman who would not be rehired in the spring of 2009 because
he determined that Mr. Garcia was the least productive foreman
based upon his review of weekly foremen reports over the years
5
and upon his review of multi-year summary reports of foremen
productivity (“Foreman Productivity Reports”).
(Def. St., ¶20)
It is noted, however, that Mr. Garcia denies that Mr. Gianatasio
determined that he should be fired because he was the least
productive foreman.
(Pl. Resp., ¶20).
Mr. Garcia contends that
Mr. Gianatasio “repeatedly told the EEOC and IDHR that it
terminated Garcia’s employment because (1) he did not accept
constructive criticism from supervisors and (2) he was the least
skilled foreman.”
Id.
Mr. Garcia claims that, from at least the early 1990s
through December 2008, Bill Anderson frequently called Mr.
Garcia and other workers “wetbacks,” “beaners,” “stupid
Mexicans,” “motherfuckers,” “pigs,” and “animals,” told workers
that they had no brains, threatened to report workers to
immigration authorities, said that he was a born racist, and
made other racially offensive comments. (Pl. Add’l. St., ¶1).
Moreover, Mr. Garcia argues that Mr. Anderson used this racially
offensive language at least two times per week during the time
that Mr. Garcia worked for Complete, and did not make these
statements to non-Mexican foreman. Id.
Complete disputes these facts, arguing that Mr. Garcia
“offered numerous affidavits purporting to corroborate his
extraordinary charges, but upon deposition of the affiants, the
statements in the affidavits were found to be largely
6
inconsistent. (Defendant’s Response to Plaintiff’s Local Rule
56.1 Filing (“Def. Resp”), ¶1).
Lastly, Mr. Garcia claims that Complete retaliated against
him after he made complaints to management known about another
foreman, Robin Mildebrath (white).
Mr. Garcia states that Mr.
Mildebrath was addicted to cocaine, and that from at least the
early 2000s until the end of 2004, Mr. Mildebrath used racist
language around workers, spoke to workers about sex, exposed his
penis to workers, and touched workers on their butts.
Add’l. St., ¶3).
(Pl.
Mr. Garcia reported Mr. Mildebrath’s
misconduct to Complete management, but claims Complete took no
corrective action thereafter. (Id. at ¶4).
At the outset, Complete objects to any use of statements or
acts regarding Mr. Mildebrath, or that occurred in his presence,
due to the Illinois Dead Man’s Act, 735 ILCS 5/8-201, which
prevents the introduction of a deceased person’s statements at a
civil trial.
(Def.’s Add’l. St., ¶3).
Moreover, Complete
challenges the relevancy of these facts to the claims asserted
in this matter.
Id.
Next, Complete denies each of Mr. Garcia’s
claims, including that it was aware of Mr. Mildebrath’s
addiction issues, that Mr. Mildebrath used inappropriate
language or made inappropriate gestures, and that Complete took
no corrective action on Mr. Garcia’s September 2008 complaints
7
of Mr. Mildebrath.
Id.
Complete acknowledges that Mr. Garcia
has filed sexual harassment charges in a complaint that is
currently pending before the Illinois Human Rights Commission.
Id.
On February 9, 2005, a DuPage County grand jury indicted
Mr. Mildebrath for, among other things, Burglary and Attempted
Aggravated Criminal Sexual Assault. (Pl. Add’l. St., ¶5).
Mr.
Mildebrath was incarcerated from early 2005 until August 2008,
and upon his release, Mr. Mildebrath returned to work at
Complete Building Maintenance, and Complete placed Mr.
Mildebrath on Mr. Garcia’s work crew.
(Id. at ¶7).
Complete
does not dispute these facts, however, it objects on the grounds
of relevancy, and adds that Complete previously allowed a
Hispanic employee to return to work following a prison term, as
well.
(Def.’s Add’l. St., ¶7).
On September 7, 2008, Mr. Garcia claims that, the Parole
Division placed Mr. Mildebrath on house arrest, and, in
response, Complete removed Mr. Mildebrath from Mr. Garcia’s
crew. (Pl. Add’l. St., ¶13).
Mr. Garcia argues that Complete
suspected that he reported Mr. Mildebrath to the Parole
Division, and that this attributed to Complete’s decision to
fire him.
Id.
Complete asserts that the sole reason for Mr.
Mildebrath’s house arrest was Plaintiff’s report to authorities,
8
but denies that Mr. Mildebrath’s change in placement was in
response to his house arrest.
(Def.’s Add’l. St., ¶13).
Standard of Review
Summary judgment is proper if the “pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Fed. R.
Civ. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
A genuine issue of material fact exists if the
“evidence is such that a reasonable jury could return a verdict
for the non-moving party.”
U.S. 242, 248 (1986).
Anderson v. Liberty Lobby, Inc., 477
Though this standard places the initial
burden on the moving party, once it has met this burden of
production, the non-moving party “may not rely merely on
allegations or denials in its own pleading,” but instead must
“set out specific facts showing a genuine issue for trial.”
Fed. R. Civ. P. 56(e).
When deciding whether summary judgment
is proper, the Court must accept the non-moving party’s evidence
as true and draw all inferences in favor of that party, here the
Plaintiff, Mr. Garcia.
See Anderson, 477 U.S. at 255.
In order to successfully oppose a motion for summary
judgment, the non-moving party must do more than raise a
metaphysical doubt as to the material facts.
Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
9
586. (1986).
Rather, it must come forward with specific facts
showing that there is a genuine issue for trial.
Id. at 587.
The non-moving party must offer more than a mere scintilla of
evidence to survive summary judgment, and conclusory allegations
are insufficient to defeat a motion for summary judgment. Keri
v. Bd. of Trustees of Purdue Univ., 458 F. 3d 620, 628 (7th Cir.
2006).
“[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986).
Analysis
Complete asserts that summary judgment in this case is
proper because all of the material undisputed facts, pleadings,
depositions, written discovery, and affidavits establish that
Mr. Garcia was not terminated on the basis of his national
origin or race, nor was Mr. Garcia racially harassed or
retaliated against for his complaints of sexual harassment.
Instead, Complete argues, the undisputed material facts
demonstrate that Mr. Garcia was terminated on the basis of
Complete's financial constraints and his lack of productivity.
Mr. Garcia filed his amended complaint against Complete alleging
the following five claims: (1) race harassment under 42 U.S.C.
10
1981 (Section 1981) (Count I); (2) race discrimination
Section 1981 (Count
under
II); (3) retaliation for alleged complaints
of race discrimination under Section 1981 (Count III); (4) a
claim under the Illinois Whistleblower Act
alleging
retaliation for his complaints of alleged sexual harassment
(Count IV); and (5) Illinois common law retaliatory discharge
(Count V).
of M r .
Complete seeks summary judgment as to all counts
Garcia’s
amended complaint.
The Court will analyze
each count in turn.
I.
Race Harassment Under Section 1981
Mr. Garcia argues that he has offered a remarkable amount
of evidence to prove to a jury that he was racially harassed
over a twenty-year timeframe. (Pl.’s Resp. at p. 19).
He avers
that, from “at least the early 1990s through December 2008, Bill
Anderson frequently called Mr. Garcia and other workers
“wetbacks,” “beaners,” “stupid Mexicans,” “motherfuckers,”
“pigs,” and “animals,” told workers that they had no brains,
threatened to report workers to immigration authorities, said
that he was a born racist, and made other racially offensive
comments.” (Pl.’s Resp. at p. 19).
Additionally, Mr. Garcia has
offered testimony of ten other current and former Complete
employees who corroborate that Mr. Anderson frequently used
racist language when addressing Mr. Garcia’s work crew. Id.
11
However, aside from making the claim, Mr. Garcia spends very
little space arguing this count, seemingly relying on the claims
in and of themselves, as well as the submitted affidavits from
his crew members, to belay the point.
Complete argues that the
affidavits Mr. Garcia provided consisted of family and friends,
none of whom were terminated, but almost none of whom returned
to Complete after Mr. Garcia, their father/relative/friend, was
terminated.
(Def.’s Reply at p. 18).
Additionally, Complete
argues that once deposed, “ (at least until Plaintiff’s counsel
showed the witnesses the affidavits), the testimony varied and
was substantially inconsistent from the affidavits.
In fact,
M r . Garcia's sons could not even decide in their depositions
whether they had been terminated or not.” Id.
The Court finds several undisputed facts t o b e
inconsistent with Mr. Garcia’s claim of a hostile work
environment, including that: Plaintiff referred each of his
children, as soon as they
as
several
friends,
same supervisor and
to
turned
work
at
18
years
Complete
old,
as
under
alongside the same employee
well
the
(Mr.
Mildebrath) whom he claimed subjected him to harassment
"sufficiently
severe or pervasive
to interfere
with an
employee's ability to perform his assigned duties."
Reply at p. 18).
(Def.’s
There is no dispute that Mr. Garcia never so
12
much as mentioned the "severe" or "pervasive" harassment to
his children and friends. Id.
It is well settled that, in considering a harassment
claim, the offensiveness of the work environment is evaluated
from both the subjective standpoint of the plaintiff, as well
as the objective standpoint of a reasonable person in the
plaintiff’s position. Faragher v. City of Boca Raton, 524 U.S.
775, 787, 118 S.Ct. 2275 (1998). The fact that Mr . Ga rc ia
would have recommended one child or one friend to work at
Complete while he was allegedly enduring such alleged
harassment would be, in and of itself, irreconcilable with
his establishment of a subjectively hostile work environment.
As Defendants point out, t he fact that Plaintiff would
recommend all of his adult male children to work at Complete,
with the same people who allegedly subjected him to s u c h
egregious harassment, without even warning of the alleged
harassment, renders a decision in Mr. Garcia's favor on his
harassment claim difficult.
These facts, which are undisputed, preclude a reasonable
jury from finding in M r . G ar ci a’ s favor on his hostile work
environment claim.
Accordingly, the Court finds summary
judgment appropriate as to Count I.
13
II. Race Discrimination Under Section 1981
Mr. Garcia argues that he has offered sufficient evidence
for a jury to conclude that he was fired because of his race.
Mr. Garcia proceeds pursuant to t h e i n d i r e c t , burden-shifting
method of
claim.
analysis in support of his race discrimination
In order to establish a prima facie case under
the indirect method, Mr. Garcia must show that (1) he was
a member of a protected class; (2) he was performing his job
satisfactorily; (3) he suffered an adverse employment action;
and (4) that Complete treated similarly situated individuals
outside Mr. Garcia's protected class more favorably.
See
Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 394 (7th Cir.
2010).
If Mr. Garcia satisfies these elements, thus giving rise
to an inference of discrimination, the burden would shift to
Complete to identify a legitimate, nondiscriminatory reason for
the action taken.
Stockwell v. City of Harvey, 597 F.3d 895,
901 (7th Cir. 2010).
If Complete can proffer a
nondiscriminatory reason for terminating Mr. Garcia, summary
judgment would then only be erroneous if Mr. Garcia produced
evidence that the proffered reason was a pretext for racial
discrimination.
Id.
14
Complete contends that, regardless of whether M r . Garcia
employs the direct or indirect method of analysis, a jury could
not reasonably find that a company w h o e m p l o y e d nearly all
Mexican employees and foremen terminated Mr. Garcia on account
of his race.
Moreover, Complete argues that Mr. Garcia’s
complaint never pled that he was terminated on account of race,
thus justifying dismissal on that ground alone.
Although the
complaint may have not been clear on the pleading, the Court
will analyze the merits.
As to the first element of the four-part standard, Mr.
Garcia is Mexican, and thus a member of a protected class.
Second, Complete concedes that, although it considered him the
weakest of its foreman, “but for the recession, [Mr. Garcia’s]
employment was sufficiently satisfactory so that his employment
would not have been terminated.”
(Defs.’ Reply at p. 13).
Therefore, the Court finds that the second element, that he was
performing his job satisfactorily, is met as well.
There is
no dispute that the third element is met, as M r . Garcia
suffered an adverse employment action by being terminated.
The
fourth element is wherein the dispute lies, whether Complete
treated similarly situated individuals who were not Mexican
more favorably.
15
It is undisputed that, at the time of Mr. Garcia’s
termination, there were seven working roof production foremen,
five of whom were Mexican. ( Defs.’ Reply at p. 14).
Additionally, it is undisputed that all foremen hired since 1985
were Mexican, and that each of the non-Hispanic foremen was at
least 10 years more senior than Mr.
Id.
Lastly, it is also
undisputed that the foremen productivity reports reviewed by
management all showed Mr. Garcia to be the least productive
foreman.
Id.
Mr. Garcia contends that the fourth element is
met because Mr. Mildebrath was treated more favorably.
However, at the time of Mr. Garcia’s termination, and insofar
as M r . M i l d e b r a t h ’ s return to Complete following his
release from prison, M r . M i l d e b r a t h had not worked as a
foreman and had no crew.
Therefore, the Court cannot agree
that Mr. Mildebrath was similarly situated to Mr. Garcia.
As
explained by the Seventh Circuit in Chattic v. Illinois Dep't
of Corrections, 2013 WL 6172517 (7th Cir. 2013), in
evaluating whether comparable coworkers are "similarly
situated," courts will, "consider whether the employees held
the same position, were subject to and performed up to the
same standards, and reported to the same supervisor as the
plaintiff."
Id. at *1.
In Chattic, the Seventh Circuit,
affirming summary judgment in favor o f
the employer, rejected
the plaintiff’s proffered comparables where the comparables
16
had fewer absences.
Id. The court found that the plaintiff had
also failed to present evidence of pretext where the employer
terminated the plaintiff on account of absenteeism, and where
the retained employees had fewer absences.
Id.
Herein, the sole comparable proffered by Mr. Garcia is an
individual who had been a foreman at Complete for over ten
years longer than he, and had m o s t r e c e n t l y not had a crew
for four years.
The Court finds no relevance in Mr. Garcia’s
argument r e g a r d i n g Mr. Mildebrath's absenteeism, which
occurred four years prior to the timeframe of Mr. Garcia's
termination.
Lastly, the Court finds that Mr. Garcia has
failed to present any evidence of pretext, and that the nondiscriminatory reason for Mr. Garcia’s termination productivity- was indeed the honest reason.
See Smizer v.
Community Mennoite Early Learning Center, 5 3 8 F e d . A p p x
7 1 1 (7th Cir. 2013) ("Even if the Center's reason was not a
good one, that is irrelevant if the Center honestly believed
that the plaintiff wrote the post [which represented the
stated reason for his termination].").
As a final argument to bolster Mr. Garcia’s race
discrimination claim, he alleges that he and other Mexican
foremen were paid substantially lower end-of-the-year bonuses
than similarly situated non-Mexican foremen.
p. 16).
(Pl.’s Resp. at
Mr. Garcia asserts that the bonus figures and the
17
productivity data from 2005-2007 demonstrate that
“historically, there was little change from year-to-year in
terms of who received the highest bonuses.
In almost every
year, Marlin Thomas (black) and Francisco Herrera (Mexican),
the two foremen with the best productivity figures, received
the highest bonuses.
Then, Tab Rand (white), one of the
weakest foremen according to productivity figures, received a
year-end bonus just shy of Thomas’s and Hernandez’s bonus and
often twice as large as the bonuses of Mexican foreman Garcia,
Alvear, P. Llanes, and E. Llanes.”
(Id. at 17).
The Court finds it difficult to reconcile Mr. Garcia’s
admission, that for several years, a Mexican foreman received
one of the highest bonuses, with his allegation that Complete
discriminates on the basis of bonus payments against
Mexican/Hispanic foremen.
Plaintiff provides a chart
contrasting the bonuses foremen received from 2005-2007, with
their respective productivity data, and argues that there is a
“stark difference in year-end pay.”
Id.
However, Mr.
Gianatasio’s testimony explained that bonuses were not based on
productivity alone, but also considered other factors, such as
skill and travel to distant worksites.
(Defs.’ Reply at p.
17).
Although Mr. Garcia disputes that the bonuses were based
upon productivity, skill and travel, per se, he concedes that
18
they were based on more than just productivity, explaining that
“[a]ctually, the end-of-year bonus was based on performance
during the year…[p]erformance encompassed safety, productivity,
quality of work, and the types of jobs that the foreman
received.”
Pl.’ Resp. to Defs.’ L.R. 56.1 SOF ¶10).
The Court
finds that, regardless of whether it follows Mr. Gianatasio or
Mr. Garcia’s definition of what a bonus encompassed, there is
no evidence to support Mr. Garcia’s bonus disparity claim.
Accordingly, the Court finds summary judgment appropriate as
to Count II.
III. Retaliation for Race discrimination Under Section 1981
In order to defeat Defendants’ motion for summary judgment
on Count III, Mr. Garcia must offer evidence from which a jury
could reasonably conclude that Complete fired him because he
complained about race harassment, or because he complained to
law enforcement about Mr. Mildebrath’s criminal acts.
Under the
direct method, Mr. Garcia must show, through either direct or
circumstantial evidence that (1) he engaged in statutorily
protected activity; (2) he suffered an adverse action taken by
Complete; and (3) there was a causal connection between the two.
See Egan v. Freedom Bank, 659 F.3d 639, 642 (7th Cir. 2011).
Complete does not dispute elements one or two, yet argues
that, with regard to the third element, no reasonable jury could
19
conclude that there was a causal connection between Mr. Garcia’s
complaints of race harassment or criminal conduct and his
termination.
Indeed, the Court finds that Mr. Garcia leaves
unaddressed several undisputed facts regarding Complete's
employee demographics and his own work history, which could
preclude a finding by a reasonable jury in Mr. Garcia's favor
regarding his retaliation claims, including:
-Mr. Garcia was promoted to the position of Foreman
after h e had allegedly complained about M r .
Anderson and M r .
Mildebrath for at least six
years [Plaintiffs Amended Complaint, ¶6];
-Mr. Gianatasio, Complete's
President, the person
to whom M r . Garcia allegedly complained about Mr.
Mildebrath prior to his promotion to foreman,
approved Mr. Garcia's promotion from laborer to
foreman [Id. at ¶¶32,40];
-the vast majority of Complete's employees are
Mexican [Id. at ¶26];
-the last six production foremen hired by Complete
(since 1985) were Mexican [Id. at ¶15]; and
-Mr. Garcia had been a foreman for 10 years less
than the only two non-Hispanic foremen working as
foreman at the time of his termination [Id. at ¶9];
20
M r . Garcia then employs a circumstantial evidence
argument to proffer that, given Complete’s allegedly more
favorable treatment of Mr. Mildebrath, a jury reasonably could
conclude that Mr. Garcia was not fired for productivity-related
reasons, “but because Complete was upset about Mr. Garcia’s
complaints of race discrimination or his complaints to law
enforcement.
See Massey v. Johnson, 457 F.3d 711, 717 (7th
Cir. 2006) (“Circumstantial proof, such as the timing of events
or the disparate treatment of similar individuals, may be
sufficient to establish the defendant’s retaliatory motive.”);
Zitzka v. Vill. of Westmont, 743 F. Supp. 2d 887, 919 (N.D.
Ill. 2010) (“Circumstantial evidence of retaliatory motive is
more common, and may include the timing of events or the
disparate treatment of similar individuals.”).” (Pl.’s Resp. at
p. 9).
The Court is unpersuaded by Mr. Garcia’s circumstantial
evidence argument, and finds that Complete had a legitimate
nondiscriminatory reason for M r . G a r c i a ’ s
termination.
Complete maintains that, due to the economic downturn, it
undertook drastic measures to reduce costs, which were
necessary to avoid a financial crisis.
4).
(Def.’s Reply at p.
Significantly, this is not a fact disputed by Mr. Garcia,
which the Court finds telling.
decision to terminate M r .
Mr. Gianatasio made the
Garcia, "because of the economic
21
condition that the company was in." Id.
And Mr. Gianatasio
testified that he, "wish[ed] Rodrigo [Mr. Garcia] was still
working at Complete" because that would be an indication that
the company was healthier.
Id.
This is also not contested by
Mr. Garcia.
The Court finds that, but for the downturn in the economy,
Mr. Gianatasio made clear that Mr. Garcia would not have been
terminated.
The evidence of the poor economy and need to
reduce one crew is not disputed.
In addition to salary cuts,
Complete also made the decision to eliminate one full crew,
by terminating one foreman.
Id.
Furthermore, Mr. Gianatasio
testified, and Mr. Garcia does not dispute, that he selected
Mr.
Garcia for termination based upon the foreman
productivity data and because his efficiency numbers, or
overruns, were the worst.
Id.
The Court finds that such
undisputed facts dictate judgment in favor of C o m p l e t e on
M r . G a r c i a ’ s retaliation claims.
Accordingly, the Court
finds summary judgment appropriate as to Count III.
IV. Illinois Claim of Retaliation for Complaints of Sexual
Harassment and Illinois Common Law Retaliatory Discharge
Mr. Garcia has a retaliation claim currently pending, and
stayed, before the Illinois Human Rights Commission under the
Illinois Human Rights Act ("IHRA") with nearly identical facts
22
to those alleged by h i m in support of Illinois Common Law
and Illinois Whistleblower Act ("IWA") claims.
Complete argues
that Counts IV and V of Mr. Garcia's a mended complaint,
retaliation under the Illinois Whistleblower Act, are
abrogated/preempted by the IHRA, which provides the sole remedy
for any claim that is "inextricably linked" to an alleged
violation of an employee's civil rights under the IHRA. Giese
v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 516 (1994).
In Counts IV and V of his amended complaint, Mr. Garcia
alleges that C o m p l e t e terminated him in retaliation for his
alleged reporting of Mr. Mildebrath’s harassment to the Lisle
Police Department.
The Court agrees that Counts IV and V of
Mr. Garcia's complaint are based upon claims of retaliation
which are inextricably linked to duties created by the IHRA,
and are therefore preempted.
Mr. Garcia attempts to refute the
preemption argument, relying upon Mendez v. Perla Dental, 646
F. 3d 420 (7th Cir. 2011).
In Mendez, the plaintiff complained
to the police about an incident when she was pushed to the floor
and injured her back.
The employer agreed that, "at the time
the complaint was filed, the district court had subject matter
jurisdiction over the Illinois retaliatory discharge claim
because the claim had an independent basis." (emphasis added)
Id.
23
In the instant case, the Court finds that the facts
alleged to support the IWA claim are materially identical to
those alleged in support of the IHRA claim, including Mr.
Garcia’s allegation that he was terminated on account of his
complaints to the police regarding Mr. Mildebrath's sexual
harassment.
Mr. Garcia’s common law retaliatory discharge and
IWA claim are "inextricably intertwined" with his claim
currently pending before the IHRC and thus must be dismissed as
preempted under the IHRA.
Accordingly, the Court finds summary
judgment appropriate as to Counts IV and V.
Because Mr. Garcia’s amended complaint fails on each
count, Complete is entitled to summary judgment.
Conclusion
Defendant Complete’s motion for summary judgment [dkt #48]
is granted.
Date: February 14, 2014
E N T E R E D:
------------------------------MAGISTRATE JUDGE ARLANDER KEYS
UNITED STATES DISTRICT COURT
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