Rosario v. American Society of Safety Engineers
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 8/11/2014.(psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARIA ROSARIO,
Plaintiff,
No. 12 CV 7465
v.
Judge Manish S. Shah
AMERICAN SOCIETY OF SAFETY
ENGINEERS,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Maria Rosario was employed by the defendant, the American Society
of Safety Engineers. A co-worker, Judith Burl, felt discriminated against because
she was black. Although Rosario did not believe that Burl had been a victim of
discrimination, she reported Burl’s concerns to management. An investigation (with
some flaws) was conducted, the Society concluded that Rosario’s report was
groundless, and Rosario was fired. She brought this suit, contending that the
Society unlawfully retaliated against her because she opposed racial discrimination.
For the reasons discussed below, summary judgment in favor of the Society is
granted.
I.
Legal Standards
Rosario brought suit under Title VII, 42 U.S.C. §§ 2000e et seq., and 42
U.S.C. § 1981. Both statutes prohibit employers from retaliating against employees
for opposing race discrimination. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630
(7th Cir. 2011). The substantive analysis under Title VII is generally the same as
under Section 1981. Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012) (citing
Humphries v. CBOCS West, Inc., 474 F.3d 387, 403–04 (7th Cir. 2007), aff’d, 553
U.S. 442 (2008)). A plaintiff can prove retaliation using either the “direct” or the
“indirect” method. For the direct method, Rosario must show that (1) she engaged in
protected activity; (2) she suffered an adverse employment action; and (3) there was
a causal connection between the two. Northington v. H & M Int’l, 712 F.3d 1062,
1065 (7th Cir. 2013). For the indirect method, Rosario must show that she
(1) engaged in protected activity; (2) suffered an adverse employment action; (3) met
the employer’s legitimate expectations; and (4) was treated worse than otherwise
similarly situated employees who did not engage in protected activity. Id. If Rosario
makes a prima facie showing on the indirect method, the burden shifts to the
Society to offer a non-discriminatory reason for her termination. O’Leary, 657 F.3d
at 635. The burden then shifts back to Rosario to show that the Society’s proffered
reason is pretextual, meaning it is a lie. Id.
II.
The Facts1
The Society is a professional safety organization; its members consult on
safety, health, and environmental issues in industry, government, and education.
DSOF ¶ 1. Rosario was hired in August 1996. DSOF ¶ 4. In July 2010, a black
Summary judgment is appropriate only if there is no genuine dispute as to any material
fact, and the Society is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). I view
the facts, and draw reasonable inferences from those facts, in the light most favorable to
Rosario. Unless otherwise noted, the facts recited in this opinion are taken from the parties’
Local Rule 56.1 statements. Rosario’s response to the Society’s statement of undisputed
material facts (Dkt. 29) is cited as “DSOF” and the Society’s response to Rosario’s statement
of additional facts (Dkt. 37) is cited as “PSOAF.”
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woman named Judith Burl joined the Society as a temporary worker. DSOF ¶ 6.
Burl also applied for a permanent job but felt that, because of her race, she wouldn’t
be hired. DSOF ¶ 7; PSOAF ¶ 84. More than once she asked her supervisor, Bruce
Sufranski, whether race would affect her chances. Dkt. 29-11 ¶ 13. Over lunch with
Rosario, Burl said that (1) she believed she wouldn’t be hired because she was
black; and (2) she had expressed her concerns to Sufranski. PSOAF ¶ 59. Rosario
didn’t think that the Society discriminated on the basis of race, and she told Burl so.
PSOAF ¶ 60. Burl didn’t get the job. DSOF ¶ 7.
Later, Rosario attended a training session and learned that she had a duty to
report harassment and discrimination. PSOAF ¶ 62. So she told management that
(1) Burl felt discriminated against; (2) Rosario did not think that Burl had been
discriminated against; and (3) Burl had raised her concerns with Sufranski. DSOF
¶¶ 14, 16, 21–24. Before Rosario’s report, the Society had always considered her
honest. PSOAF ¶ 7.
Sally Madden, the Human Resources Manager, was put in charge of
investigating. PSOAF ¶ 75. That choice was questionable: Madden maintained a list
of employees she considered “difficult,” whom she warned new employees to avoid,
and Rosario was on that list. PSOAF ¶¶ 42, 51, 59; Dkt. 29-10 ¶¶ 2–3, 5, 9; Dkt. 2911 ¶¶ 5–7, 16, 20–21. When Rosario reported Burl’s concerns of race discrimination,
she also complained that Madden’s list was a form of harassment or discrimination.
DSOF ¶ 13. Fred Fortman, the Executive Director, asked Madden about the list and
Madden falsely denied its existence. PSOAF ¶ 54. Fortman believed that Rosario
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had a vendetta and led a campaign against Madden. PSOAF ¶¶ 76–77. Madden was
arguably not the right person to investigate Rosario’s report about Burl’s concerns.
The investigation’s first step was to question Sufranski—Burl’s supervisor, to
whom Burl had reported her concerns. Sufranski denied that Burl ever raised race
discrimination concerns. DSOF ¶ 25. After that, despite the obvious conflict,
Sufranski joined the investigation team. DSOF ¶¶ 26–31. Sufranski and Madden
telephoned Burl and asked whether she had ever expressed concerns of race
discrimination.2 DSOF ¶ 27–29; PSOAF ¶ 81. Given that Burl had expressed her
concerns to Sufranski directly, Burl did not view their questions as genuine. PSOAF
¶ 82. Instead, she believed that Madden and Sufranski wanted her to lie, by
denying she ever raised such concerns. PSOAF ¶ 83. Burl felt intimidated and felt
that she would not get a good job reference if she told the truth, so she capitulated
and said that she had never expressed concerns of race discrimination. PSOAF ¶ 83;
DSOF ¶ 30.
Rosario was told that the Society had investigated and had determined that
she lied about Burl’s concerns. DSOF ¶¶ 32–34. She was given a choice: resign or be
terminated. DSOF ¶ 34. She refused to resign, said “if they choose to terminate me,
fine,” and walked out. DSOF ¶ 35. The Society sent her a letter, stating:
Dear Maria, [p]er our meeting with Fred Fortman and Bruce
Sufranski, this is to inform you that you are being terminated
effective immediately. This termination is based on your unfounded
accusation that the organization did not hire someone due to race.
They also spoke to an employee named Trina Cotton, who denied hearing Burl’s concerns
of race discrimination. DSOF ¶ 26. That’s consistent with Rosario’s report, as she wasn’t
sure whether Burl had said anything to Cotton. DSOF ¶ 24.
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In addition, you communicated this information to two staff people.
These statements are malicious, and we are terminating you for
cause.
PSOAF ¶ 97.
Burl later wrote Rosario a letter, in which she apologized for having lied
when she capitulated to Sufranski and Madden; but Rosario never forwarded the
letter to the Society. DSOF ¶¶ 37–42. Instead, Rosario brought this suit, alleging
that her termination was unlawful retaliation.
III.
Analysis
The Society does not argue that Rosario voluntarily resigned, so I assume she
was fired and therefore suffered an adverse employment action. Hobgood v. Ill.
Gaming Bd., 731 F.3d 635, 643 (7th Cir. 2013). The Society argues that she was
fired for making frivolous allegations, not for opposing race discrimination. Dkt. 25
at 5–7, 8–9. See Hatmaker v. Mem’l Med. Ctr, 619 F.3d 741, 745 (7th Cir. 2010)
(stating that it is permissible to fire employees for making frivolous accusations).
Rosario disputes that and argues that the Society’s “investigation was a sham
designed to justify terminating” her. Dkt. 28 at 18–20. Rosario may have raised
enough of a dispute to take that question to a jury, given the potential biases of
Madden and Sufranski and their heavy-handed phone call to Burl, described above.
But Rosario cannot take her claims to a jury if, as a matter of law, reporting
Burl’s concerns was not an activity that is protected by Title VII or Section 1981. An
employee engages in protected activity by either: (1) filing a charge, testifying,
assisting or participating in any manner in an investigation, proceeding, or hearing
under Title VII or other employment statute; or (2) opposing an unlawful
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employment practice. Northington, 712 F.3d at 1065. Rosario contends that her
report is covered by the second clause, called the “opposition clause.”3 Dkt. 28 at 5.
The Society notes that Rosario did not subjectively believe that Burl was
discriminated against. Dkt. 25 at 4–5. Rosario does not argue otherwise and indeed
concedes that when she reported Burl’s concerns, she “expressed her belief that she
did not think [Burl’s] allegation was true.” Dkt. 28 at 8; see also DSOF ¶¶ 16, 23.
Thus, the Society argues, Rosario did not “oppose” an unlawful employment
practice. Dkt. 25 at 4–5. The Society is right: a plaintiff does not satisfy the
opposition clause if she does not subjectively believe she is opposing unlawful
conduct. Tate v. Executive Mgmt Servs., Inc., 546 F.3d 528, 533 (7th Cir. 2008)
(“Because Tate has failed to establish that he had a good faith belief that he was
being sexually harassed, EMS is entitled to judgment as a matter of law.”).4
Rosario asks me to “disregard” the Society’s argument because (1) Burl
believed that the Society’s conduct was unlawful; (2) Rosario, while she disagreed
with Burl, believed that Burl was sincere; and (3) the Society “ascribed Burl’s
Rosario concedes that her conduct is not covered by the first clause—called the
“participation clause”—because the Seventh Circuit has held that that clause concerns only
investigations, proceedings, or hearings before “an official body”; an employer’s internal
investigations don’t count. Hatmaker, 619 F.3d at 746–47. Hatmaker, which did not involve
claims under Section 1981, drew its rule from the text of Title VII. Id. Rosario has not
argued that a different rule should apply to her Section 1981 claim.
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The Society relied on other Seventh Circuit cases stating that a subjective belief is
required, including O’Leary, 657 F.3d at 631; Hatmaker, 619 F.3d at 747–48; and Mattson v.
Caterpillar, Inc., 359 F.3d 885, 889 (7th Cir. 2004). Dkt. 25 at 5; Dkt. 35 at 8. Rosario
correctly notes that those cases involved claims that were also objectively unreasonable.
Dkt. 28 at 10. But the language of those cases is nonetheless clear, Tate did not involve
objectively unreasonable claims, and Rosario has not identified any case suggesting that a
subjective belief is not required.
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claims” to Rosario. Dkt. 28 at 6–9. But these points do not amount to Rosario
subjectively believing that she was opposing unlawful conduct, which is what the
law requires. Rosario has not identified a case—and I am not aware of one—in
which a court held that these points (or any others) can substitute for the plaintiff’s
subjective belief that she was opposing unlawful conduct.
Rosario also makes a policy argument, urging that it “would fly in the face of
the underlying policies of Title VII and Section 1981” to hold that her conduct was
not protected activity. Dkt. 28 at 10–12. She argues that her conduct “is precisely
the type of activity that Congress enacted Title VII and section 1981 to incentivize.”
Id. at 11. Her argument is undermined by her admission that “this is not a
paradigmatic retaliation case—it rests on an atypical, if not unique, fact pattern.”
Id. at 10. In any event, notwithstanding Rosario’s policy arguments, a person who
reports discrimination against another person must subjectively believe the report
in order to be opposing an unlawful employment practice. See Young-Gibson v.
Board of Education of the City of Chicago, 558 Fed.Appx. 694, 699 (7th Cir. 2014)
(nonprecedential). The prohibition against retaliation creates an incentive for
employees to report honestly held beliefs, not rumors that are not believed.
IV.
Conclusion
Because Rosario did not believe that Burl was discriminated against, she did
not “oppose” an unlawful employment practice when she informed management of
Burl’s concerns. She therefore did not engage in protected activity, and cannot
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succeed under either the direct or indirect method of proof.5 The Society may very
well have overreacted to Rosario’s report of Burl’s concerns, but its reaction was not
prohibited by Title VII or Section 1981. The Society’s motion for summary judgment
is granted.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: 8/11/14
I therefore do not address the other elements of the methods. See, e.g., Hamm v.
Weyauwega Milk Prods., 332 F.3d 1058, 1065–66 (7th Cir. 2003) (affirming summary
judgment because activity was not protected, without addressing other elements); Hamner
v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 706–08 (7th Cir. 2000) (same);
see also Williams v. Waste Mgmt. of Ill., Inc., 361 F.3d 1021, 1031–34 (7th Cir. 2004)
(affirming summary judgment because employee did not suffer adverse employment action,
without addressing other elements); id. at 1029 (affirming summary judgment on racial
harassment claims based on fourth prong of employer liability test, where neither the
district court nor the appellate court discussed the other prongs).
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