Guerrero v. T-MOBILE USA
Filing
47
MEMORANDUM Opinion and Order: For the reasons stated, T-Mobile's motion for summary judgment 38 , is granted. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 3/6/2015:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Alejandra Guerrero
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Plaintiff,
v.
T-Mobile USA, Inc.
Defendant.
No. 13 C 1567
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Plaintiff Alejandra Guerrero filed this lawsuit against her former employer,
Defendant T-Mobile USA, Inc. (“T-Mobile”), alleging state law claims under the
Illinois Human Rights Act (“IHRA”) for a hostile work environment based on sexual
orientation (“Count I”) and retaliatory discharge based on complaints she made
about that hostile work environment (“Count II”). R. 21. T-Mobile asks the Court to
grant summary judgment in its favor. R. 38.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Background
As an initial matter, the Court must address Guerrero’s failure to
respond to T-Mobile’s statement of material facts and to submit a statement of
additional material facts pursuant to Local Rule 56.1. The Seventh Circuit has
“consistently and repeatedly upheld a district court’s discretion to require strict
compliance with its local rules governing summary judgment.” Bordelon v. Chicago
Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000) (citing Midwest
Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir.1995)). Guerrero’s failure to
comply with Local Rule 56.1 functions as an admission of T-Mobile’s version of the
facts. L.R. 56.1(b)(3)(B). Such a wholesale admission usually results in a grant of
summary judgment to the party whose facts are admitted. Malec v. Sanford, 191
F.R.D. 581, 584 (N.D. Ill. 2000) (“Essentially, the penalty for failing to properly
respond to a movant’s 56.1(a) statement is usually summary judgment for the
movant (at least if the movant has done his or her job correctly) because the
movant’s factual allegations are deemed admitted.”). On this basis, the Court deems
Guerrero to have admitted T-Mobile’s statement of material facts. The Court has
2
reviewed the facts according to T-Mobile and finds that there is no genuine dispute
of material fact, and T-Mobile is entitled to judgment as a matter of law. T-Mobile’s
motion for summary judgment is granted for this reason.
Even though she failed to comply with Local Rule 56.1, Guerrero did file an
affidavit and response purporting to state her version of the facts. 1 Since these facts
were not presented in the form prescribed by Local Rule 56.1, they are properly
disregarded. Perrywatson v. United Airlines, Inc., 762 F. Supp. 2d 1107, 1115 (N.D.
Ill. 2011) aff’d sub nom. Perrywatson v. United Air Lines, Inc., 527 F. App’x 559 (7th
Cir. 2013) (noting, where plaintiff failed to follow the local rules and instead
submitted a short affidavit on which she relied, that Rule 56.1 does not allow for
such a substitution) (citing FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 632
(7th Cir. 2005)); Dunhill Asset Servs. III, LLC v. Tinberg, 2012 WL 3028334, at *3
(N. D. Ill. July 23, 2012) (“Under settled law, facts asserted in a brief but not
presented in a Local Rule 56.1 statement are disregarded in resolving a summary
judgment motion.”) (internal quotation marks omitted). Nevertheless, as the Court
discusses below, even if Guerrero’s version of the facts was properly admitted on
this motion, those facts do not demonstrate a genuine dispute of material fact
sufficient to defeat summary judgment.
T-Mobile argues that Guerrero’s affidavit and response, R. 44 and R. 44-1, should
be stricken because they were filed one week late. T-Mobile also argues that the
affidavit should be stricken as unsigned and unsworn. R. 46 at 1. Guerrero’s initial
affidavit, R. 44-1, was unsigned and unsworn. However, she filed a corrected
signature page to her affidavit three weeks later, R. 45-1, which was signed and
sworn. The Court will not strike the affidavit or Guerrero’s response on the basis of
timeliness. However, as noted, the facts in both the response and affidavit were not
presented in the form prescribed by Local Rule 56.1.
1
3
T-Mobile is a nationwide provider of wireless communication services, with
retail locations throughout the United States. R. 40 ¶ 1. Guerrero worked as a parttime Retail Sales Associate (“RSA”) at the River Oaks Mall in Calumet City, Illinois
(the “River Oaks Store”) from January 27, 2009 until she and African-American
coworker Eric Baker were terminated on August 19, 2011 for engaging in a vulgar
and “race-tainted” verbal altercation. Id. ¶ 2. In addition to Guerrero, who is
homosexual, the River Oaks Store employed several other RSAs, including Eric
Baker, and two Retail Associate Managers (“RAMs”)—Levar Lloyd and Tamika
Watkins. Id. ¶ 3; R. 21 at 3.
Although the word “manager” appears in their title, neither Lloyd nor
Watkins had the authority to effect any change in the employment status of any
other employee, including disciplining, hiring, firing, promoting, reassigning,
changing benefits, or otherwise taking any tangible employment actions against any
other employee. R. 40 ¶ 4. In 2011, all River Oaks Store employees, including
Guerrero, Baker, Lloyd and Watkins, reported directly to Store Manager Richard
Perry. Id. ¶ 5. Perry and District Managers Eric Velez and Nem Bulic had the
authority to discipline and terminate employees of the River Oaks Store with the
approval of the then-Senior Manager of Human Resources, Adam Krupa. Id. ¶ 6.
T-Mobile maintains a detailed Equal Employment Opportunity Policy (“EEO
Policy”) in its Code of Conduct Manual (“Manual”). Id. ¶ 7. The EEO Policy states
that “[a]ll decisions concerning the employment relationship will be made without
regard to age, race, color, religion, creed, sex, sexual orientation, national origin,
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marital status, veteran status, the presence of any physical or mental disability, or
any other status or characteristic protected by federal, state, or local law.” Id. ¶ 8
(emphasis added). Additionally, the EEO Policy expressly prohibits discrimination,
harassment and retaliation, and states that “T-Mobile employees have the right to
work in an environment that is free of unlawful discrimination and harassment”
based upon sexual orientation. Id. ¶ 9. The Manual also contains a complaint
procedure which requires employees who believe that they have been harassed to
report the harassment to the Human Resources Department and/or to a member of
management, and the last page of the Manual contains multiple telephone
numbers, intranet portals, internet sites, and addresses employees can utilize when
they have employment-related issues of any kind, including harassment issues Id. ¶
10.
Guerrero signed an Employee Acknowledgment form certifying that she had
read and would periodically review the Manual and that she understood the
following:
Id. ¶ 11.
It is not always possible for the Company to be aware of all of
the conduct of concern to its employees. I must report any
conduct that I believe is improper under T-Mobile’s . . . nonharassment, non-retaliation and other policies to my
management team, another appropriate supervisor and
managers and/or a Human Resources representative.
Guerrero alleges that fellow RSA Baker made three derogatory comments
regarding her sexual orientation during the 10-day period preceding the August 11,
2011 altercation resulting in their terminations. Id. ¶ 12. Guerrero’s Illinois
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Department of Human Rights (“IDHR”) Charge is attached to her Amended
Complaint and is a sworn statement. In that document, Guerrero states that the
harassment began on July 31, 2011, but then references comments beginning on
August 1, 2011. Id. ¶ 13. Guerrero alleges that the following occurred between
August 1 and August 10, 2011: (1) Baker said to her “since you fuck bitches, do you
pee standing up” on two occasions; and (2) Baker said to her “do you think you’re a
dude because you’re with girls.” Id. ¶ 14. Store Manager Perry was on a medical
leave of absence during the time period when Guerrero claims the harassment
occurred, and the ranking (and only) onsite supervisor at the time was Hillary
Knudsen, the Store Manager of a T-Mobile Kiosk also located in the River Oaks
Mall. Id. ¶ 15. Before Perry went on medical leave, Baker made no comments to
Guerrero regarding her sexual orientation. Id. ¶ 16. Guerrero did not report any of
Baker’s pre-August 11, 2011 harassing comments to Knudsen or to T-Mobile’s
Human Resources Department. Id. ¶ 17. Guerrero told only RAM Levar Lloyd that
Baker had made these comments at some point during the 10-day period during
which they were made. Id. ¶ 18.
On August 11, 2011, Guerrero and Baker engaged in a verbal altercation (the
“August 11 altercation”) on the store floor where each raised their voices and used
racially offensive and other inappropriate language, including use of the words
“fuck” and “nigga” multiple times. Id. ¶ 19. Guerrero states in her affidavit and
response that following the altercation, she complained to both RAM Levar Lloyd
and RAM Tamika Watkins and that neither took any action to remedy the
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situation. R. 44 ¶ 5; R. 44-1 ¶ 12. Guerrero called Hillary Knudsen to report the
incident and asked Knudsen if she could leave for the day; Knudsen granted
Guerrero’s request. R. 40. ¶ 20. During the telephone conference, Guerrero told
Knudsen that she and Baker engaged in a vulgar and offensive verbal altercation.
Id. ¶ 21.
Guerrero contacted T-Mobile’s Human Resources Department regarding the
altercation and Sr. Human Resources Manager Adam Krupa initiated an immediate
investigation. Id. ¶ 22. Knudsen also contacted Krupa on August 11, 2011 to report
the incident between Guerrero and Baker. Id. ¶ 23. At Krupa’s request, District
Manager Bulic called Guerrero on August 11, 2011 and Guerrero summarized the
altercation. Id. ¶ 24. During Guerrero’s phone conversation with Bulic, Guerrero
admitted to using racially offensive and other inappropriate language during the
altercation with Baker. Id. ¶ 25. Guerrero and Baker were both asked to draft a
summary of their recollections of the altercation, and they emailed their statements
to Bulic on August 14, 2011 (Guerrero) and August 15, 2011 (Baker). Id. ¶ 26.
In her August 14 email to Bulic, Guerrero confirmed what she had already
told Bulic over the telephone and elaborated on that conversation. Id. ¶ 27. She
admitted to taking sunglasses Baker had placed on her head and throwing them,
arguing aggressively with Baker, using the word “fuck” three times and using the
word “nigga” six times (Baker is African-American, Plaintiff is not), all in front of a
customer and other employees. Id. ¶ 28. Guerrero also stated in her email to Bulic
that Baker said “oh cuz you fuck bitches you think you a nigga.” Id. ¶ 29.
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Neither Bulic nor Krupa knew Guerrero was homosexual until she submitted
her statement referencing Baker’s inappropriate comment. Id. ¶ 30. In Baker’s
August 15, 2011 email to Bulic, he admitted to participating in the altercation by
placing the sunglasses on Guerrero’s head and by arguing with her. Id. ¶ 31. He
also admitted to saying “you think because you mess with girls that you can beat up
a guy.” Id. The River Oaks Store is in a mall where the entire front of the store is
open to the mall and mall patrons could have heard or witnessed the altercation
between Guerrero and Baker without being physically present inside the store. Id. ¶
32.
Bulic forwarded both Guerrero’s and Baker’s August 14 and 15, 2011 emails
to Krupa and left on August 15, 2011 for a previously scheduled two-week vacation.
Id. ¶ 33. After reviewing Guerrero’s and Baker’s statements and discussing the
matter with Bulic, Krupa decided that termination of both employees was
appropriate. Id. ¶ 34. Krupa decided that Guerrero’s termination was appropriate
because she admitted in writing and/or in her interview with Bulic that: (1) she
argued aggressively with Baker and threw sunglasses in the store; (2) she used the
word “nigga” six times during the argument with Baker, who is African-American;
(3) she used the word “fuck” three times during the argument with Baker; (4) she
raised her voice during the argument with Baker; and (5) all this took place in front
of other employees, a customer, and possibly mall patrons walking by the store. Id.
¶35. Based on Guerrero’s August 14 statement, it was Krupa’s belief that a
customer was present during the altercation; however, Krupa noted that he would
8
have made the same decision even if a customer had not been present. Id. Krupa
also believed it was possible that other mall patrons walking by the store could have
heard or witnessed Guerrero’s conduct. Id. ¶ 36.
Krupa also decided that Baker’s termination was appropriate because: (1)
Baker admitted to being involved in the altercation with Guerrero; (2) Baker
admitted to making a derogatory reference regarding Guerrero’s sexual orientation;
(3) Guerrero’s allegations against Baker were believable; and (4) like Guerrero’s
conduct, Baker’s conduct took place in front of a customer, other employees, and
possibly mall patrons walking by the store. Id. ¶ 38. Again, based on Guerrero’s
August 14 statement, it was Krupa’s belief that a customer was present during the
altercation; however, Krupa stated that he would have made the same decision even
if a customer had not been present. Id.
Because Bulic was on vacation at the time that Krupa decided on the
terminations, Krupa asked another District Manager, Eric Velez, to personally
interview Guerrero and Baker to determine whether Velez shared Krupa’s belief
that Guerrero and Baker should both be terminated. Id. ¶ 39. Neither Krupa nor
Velez had ever had to address any workplace misbehavior issue like the one
presented here, where two employees argued with raised voices in a vulgar and
offensive exchange on the store floor. Id. ¶ 50. Krupa provided Velez with the
August 14 and August 15 emails and informed Velez that he had Krupa’s authority
to terminate both employees if he felt termination was appropriate after
interviewing the two employees. Id. ¶ 40.
9
Velez met with Guerrero and Baker at the River Oaks Store separately on
August 19, 2011 in order to discuss the altercation. Id. ¶ 41. Velez asked Guerrero
to describe what happened during the altercation, and Guerrero repeated what was
in her written statement; Guerrero was as graphic in her conversation with Velez as
she was in her written statement. Id. ¶ 42. Velez then called Baker into the office
and asked him to explain what had happened during the altercation with Guerrero.
Id. ¶ 44. Baker recounted a “softened” version of what was in his written statement
during his conversation with Velez, but admitted to participating in the altercation
with Guerrero. Id. ¶ 45
Based upon Velez’s review of Guerrero’s August 14 email, as well as his inperson interview with Guerrero, he agreed with Krupa that Guerrero should be
terminated for the same reasons articulated by Krupa. See supra. at 8. Additionally,
Based on Guerrero’s August 14, 2011 statement, Velez agreed with Krupa that a
customer was present at the time of the altercation; however, Velez would have
made the same decision even if a customer had not been present in the store. Id. ¶
46.
Based upon Velez’s review of Baker’s August 15, 2011, as well as Velez’s inperson interview with Baker, Velez agreed with Krupa that Baker should be
terminated for the same reasons articulated by Krupa. See supra. at 9. Although, as
noted, Velez believed that a customer was present in the store at the time of the
altercation, he would have made the same decision even if a customer had not been
present. Id. ¶ 47.
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Velez communicated the termination decision to both Guerrero and Baker
that same day, on August 19, 2011. Id. ¶ 48.
Discussion
A. Hostile Work Environment Based on Sexual Orientation
In determining what constitutes harassment and a hostile work environment
under the IHRA, Illinois courts and the Illinois Department of Human Rights have
examined federal decisions under Title VII as the prohibition of harassment in the
Act closely parallels that found in Title VII. Trayling v. Bd. of Fire & Police, 652
N.E.2d 386, 393 (Ill. App. Ct. 2d Dist. 1995); Bd. of Trustees of S. Illinois Univ. v.
Knight, 516 N.E.2d 991, 995 (Ill. App. Ct. 5th Dist. 1987) (recognizing that “[i]n
analyzing claims of discrimination under the Act, Illinois courts have looked to the
standards applicable to federal claims brought under Title VII”). Because Title VII,
Section 1981 and IHRA claims use the same standards, a plaintiff’s failure to
establish a prima facie case of discrimination under Title VII for a given
employment action necessarily forecloses Section 1981 and IHRA claims arising
from the same conduct. Hoosier v. Greenwood Hospitality Management LLC, 32 F.
Supp. 3d 966, 975 (N.D. Ill. 2014) (citing Johnson v. City of Fort Wayne, 91 F.3d
922, 940 (7th Cir. 1996)).
To establish a prima facie case for a hostile work environment claim,
Guerrero must show: (1) that she was subject to unwelcome harassment; (2) the
harassment was based on her sexual orientation; (3) the harassment was so severe
or pervasive as to alter the conditions of her work environment by creating a hostile
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or abusive situation; and (4) there is a basis for employer liability. Zayas v.
Rockford Mem’l Hosp., 740 F.3d 1154, 1159 (7th Cir. 2014) (noting elements for a
hostile work environment based on national origin and citing Lucero v. Nettle Creek
Sch. Corp., 566 F.3d 720, 731 (7th Cir. 2009)). The Court’s analysis will focus on the
fourth requirement: employer liability.
Guerrero claims that employer liability exists because T-Mobile had previous
knowledge of Baker’s discrimination against her and failed to do anything about it,
despite having a formal written policy prohibiting the conduct. R. 44 ¶ 4. There is
no factual dispute that T-Mobile had a reasonable policy for preventing harassment.
The undisputed facts include:
•
T-Mobile’s EEO Policy in its Manual expressly prohibits
discrimination, harassment and retaliation, and states that “T-Mobile
employees have the right to work in an environment that is free of
unlawful discrimination and harassment” based upon sexual
orientation. R. 40 ¶ 9.
•
The Manual also contains a complaint procedure which requires
employees who believe that they have been harassed to report the
harassment to a supervisor, manager, or Human Resources
Department and/or to a member of management, and the Manual
contains multiple telephone numbers, intranet portals, internet sites,
and addresses employees can utilize when they have employmentrelated issues of any kind, including harassment issues. Id. ¶ 10.
•
Additionally, Guerrero signed an Employee Acknowledgment form
certifying that she had read and would periodically review the Manual
and that she understood that:
“It is not always possible for the Company to be aware of all of the
conduct of concern to its employees. I must report any conduct that I
believe is improper under T-Mobile’s . . . non-harassment, nonretaliation and other policies to my management team, another
appropriate supervisor and managers and/or a Human Resources
representative.” Id. ¶ 11.
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Guerrero does not dispute the fact that such a policy was in place or that she
signed it. She claims that management did not apply good faith efforts to address
her complaints about Baker’s comments and behavior regarding her sexual
orientation. R. 44 ¶ 4.
Guerrero alleges only that coworker Eric Baker, and no other employee,
perpetrated the harassment. R. 40 ¶ 49. There is no dispute that Baker was
Guerrero’s coworker, not her supervisor. In that case, Guerrero must show a basis
for employer liability by proving that T-Mobile was negligent in discovering or
remedying harassment by her coworkers. Montgomery v. Am. Airlines, Inc., 626
F.3d 382, 390 (7th Cir. 2010) (citing Andonissamy v. Hewlett–Packard Co., 547 F.3d
841, 848 (7th Cir. 2008)). In other words, “[a]n employer satisfies its legal duty in
coworker harassment cases ‘if it takes reasonable steps to discover and rectify acts
of . . . harassment of its employees.’” Cerros v. Steel Techs., Inc., 398 F.3d 944, 952
(7th Cir. 2005) (quoting Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027,
1032 (7th Cir. 1998)).
“Notice that is sufficient to trigger employer liability must be given to either
someone with authority to take corrective action or, at a minimum, someone who
could ‘reasonably be expected to refer the complaint up the ladder to the employee
authorized to act on it.’” Parker v. Side by Side, Inc., No. 12 CV 7204, 2014 WL
2932211, at *11 (N.D. Ill. June 27, 2014) (quoting Lambert v. Peri Fireworks
Systems, Inc., 723 F.3d 863, 866-67 (7th Cir. 2013) (quoting Parkins, 163 F.3d at
1037)). If the employer has established procedures for reporting complaints of
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harassment, “the complainant ordinarily should follow that policy in order to
provide notice sufficient for the employer to be held responsible, unless the policy
itself is subject to attack.” Lambert, 723 F.3d at 867. “The focus of the notice
inquiry, however, remains on whether the complainant adequately alerted his
employer to the harassment, ‘not whether [the complainant] followed the letter of
the reporting procedures set out in the employer’s harassment policy.’” Parker, 2014
WL 2932211, at *11 (quoting Cerros, 398 F.3d at 952-53).
T-Mobile’s EEO Policy sets forth several options an individual may pursue in
addressing harassment, including speaking with a supervisor, manager, or Human
Resources representative. R. 40-4 at 12-13. Guerrero claims in her affidavit that
“during the week of August 1, 2011,” the day after an incident with Baker where he
made comments referencing her sexual orientation, she reported the incident to
Lloyd, who did not take any action. R. 44-1 ¶¶ 4-7. She also claims in her affidavit
and response that after the August 11 altercation, she complained to Lloyd again
and to Watkins. R. 44 ¶ 5; R. 44-1 ¶ 12. That same day, when Lloyd and Watkins
took no action, Guerrero contacted Kiosk Manager Knudsen, who told Guerrero she
would contact District Manager Bulic. R. 44-1 ¶¶ 13-14.
Even considering Guerrero’s assertions in her response and affidavit, her
claim fails to establish a basis to find T-Mobile negligent. Guerrero did not make a
concerted effort to inform T-Mobile of Baker’s harassing comments before August 11
by simply reporting them to Lloyd. See, e.g., Montgomery, 626 F.3d at 391 (citing
Rhodes v. Ill. Dep’t. of Transp., 359 F.3d 498, 507 (7th Cir. 2004) (noting a plaintiff
14
must demonstrate that she “made a concerted effort to inform [her employer] of the
. . . harassment [s]he was allegedly experiencing.”). The evidence does not show that
Lloyd could reasonably be expected to refer the complaint up to someone with
authority to address it. Lambert, 723 F. 3d at 867 (noting that a “[f]ocus on whether
the information comes to the attention of someone who ought by specification of his
duties or, failing that, general norms of management to do something about it,
either directly or by referring the matter to some other corporate employee, is a
better, . . . more practical, approach than asking at what level in a corporate
hierarchy an employee is.”) (citations and internal quotations omitted); see also
Yannick v. Hanna Steel Corp., 653 F.3d 532 (7th Cir. 2011) (given the limited duties
and authority of the plaintiff’s immediate supervisor (a low-level supervisor who
had no authority to hire, fire, transfer, or discipline any employees)), plaintiff’s
awareness of the company’s harassment policy and chain of command, and the
supervisor’s unwillingness and refusal to address the situation, it was unreasonable
for plaintiff to believe that the supervisor would convey his complaints up the
ladder). Guerrero further claims in her response that she “was unaware that Levar
Lloyd . . . was unable to take any disciplinary action against Baker.” R. 44 ¶ 3. The
record reflects that though Lloyd’s title included the word “manager,” he was not
Guerrero’s supervisor or a human resources representative. It is undisputed that
Lloyd did not have the authority to discipline, hire, fire, promote, reassign, change
benefits or otherwise take any tangible employment actions against or effect any
change in the employment status of any other River Oaks Store (or other) employee.
15
R. 40 ¶ 4. Additionally, in 2011, all River Oaks Store employees, including
Guerrero, Baker, Lloyd and Watkins, reported directly to Store Manager Richard
Perry. Id. ¶ 5. Beyond Guerrero’s unsupported assertions, there is no evidence
showing that T-Mobile expected its Retail Associate Managers (like Lloyd) to pass
that type of complaint up the chain to the human resource managers. Even if
complaining to Lloyd initially was reasonable, if Lloyd did not act, Guerrero should
have taken the issue to someone who could act. There is no reason she could not
have complained to Knudsen, who was Store Manager of a T-Mobile Kiosk in the
same mall. R. 40 ¶ 15. At that point, “any reasonableness quickly evaporated when
[Guerrero’s] request for relief went unanswered.” Parker, 2014 WL 2932211, at *13
(quoting Yannick, 653 F.3d at 550); see also Parkins, 163 F.3d at 1038 (“A
reasonable person, realizing that her complaints were ineffective, would then seek a
remedy elsewhere.”)).
Indeed, it is undisputed that following the August 11 incident, Guerrero
reported it to her acting supervisor Knudsen and to Human Resources in
accordance with the chain of command under the complaint procedure. Even if, as
Guerrero claims in her affidavit, she complained of the August 11 incident first to
Lloyd and Watkins, who did nothing, it is undisputed that she then reported the
fight and vulgar exchange to acting supervisor Knudsen and to Human Resources
on the same day. R. 40 ¶¶ 19-23. Tellingly, after the August 11 incident, Guerrero
called Knudsen and asked for permission to leave for the day. Guerrero obviously
considered Knudsen to be a supervisor who had the authority to allow her to take
16
the rest of the day off. Parker, 2014 WL 2932211, at *13 (N.D. Ill. June 27, 2014)
(finding that given the plaintiff’s acknowledgement of the chain of command for
making formal harassment complaints and the prior “brushing off” by two
supervisors of the plaintiff’s complaints, it was unreasonable for him to believe that
those same supervisors would convey his complaints up the ladder to company
management). Guerrero’s actions clearly demonstrate that she knew the proper
procedure for complaining about harassment and putting the company on notice,
failed to follow it for the pre-August 11 conduct, and followed it on August 11. R. 40
¶¶ 19-23.
Additionally, there is no evidence of T-Mobile’s constructive notice of Baker’s
harassing comments toward Guerrero prior to August 11, 2011. “[A]n employer is
considered to have constructive notice of a hostile work environment where the
harassment was sufficiently obvious.” See Downey v. Briscoe, No. 09 C 5870, 2013
WL 6230611, at *5 (N.D. Ill. Nov. 29, 2013) (citations and internal quotation marks
omitted). Guerrero has not presented evidence that the harassment she suffered
was so pervasive and obvious that T-Mobile can be found to have constructive
knowledge of the harassment. See Parker, 2014 WL 2932211, at *13 (citing Rhodes,
359 F.3d at 506-07) (finding plaintiff failed to set forth sufficient evidence to charge
her employer with constructive knowledge of harassment where the plaintiff made a
single complaint about a pornographic picture in her locker, the plaintiff presented
no evidence that anyone else complained about the pornographic materials, and
other employees kept a “lookout” to alert them if someone approached while they
17
watched pornographic videos at work)); Zupan v. State, No. 95 C 1302, 1999 WL
281344, at *7 (N.D. Ill. Mar. 31, 1999) (noting constructive knowledge may exist
where there have been previous complaints to the employer about the supervisor)
(citations omitted).
With regard to the August 11 altercation, T-Mobile clearly took reasonable
steps to discover and rectify Baker’s harassment after Guerrero reported it to
Knudsen and Human Resources on the day that it occurred. When Knudsen and
Human Resources were notified on August 11, Senior Human Resources Manager
Krupa initiated an immediate investigation. R. 40 ¶ 22. As part of the investigation,
District Manager Bulic interviewed Guerrero over the phone and then obtained
written statements from Guerrero and Baker just a few days after the altercation
took place. Id. ¶¶ 24, 26. Further, Krupa discussed the incident with Bulic,
reviewed the written statements himself, provided them to District Manager Velez,
and asked Velez to interview Guerrero and Baker. Id. ¶¶ 33-34, 39-40. Velez then
personally interviewed Guerrero and Baker to determine whether he, like Krupa,
believed that terminating Guerrero and Baker was an appropriate response to their
conduct (including Baker’s earlier references to Guerrero’s sexual orientation). Id.
¶¶ 41-44.
T-Mobile’s investigation, initiated as soon as Guerrero complained to her
acting supervisor and Human Resources, and its termination of Baker within a
week of making the comment (which was also within two weeks of which he made
the additional comments) demonstrates that T-Mobile satisfied its legal duty to take
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“prompt and appropriate corrective action reasonably likely to prevent the
harassment from recurring.” Porter v. Erie Foods, Int’l, 576 F.3d 629, 636 (7th Cir.
2009) (citations omitted). T-Mobile could not have acted in a more appropriate and
legally proper way than it did. Wyninger v. New Venture Gear, Inc., 361 F.3d 965,
978 (7th Cir. 2004) (citing Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044,
1048 (7th Cir. 2000) (noting that “[i]n hostile work environment cases, the employer
can avoid liability for its employees’ harassment if it takes prompt and appropriate
corrective action reasonably likely to prevent the harassment from recurring.”)).
There is no evidence from which a reasonable factfinder could conclude that a basis
for employer liability exists. Therefore, summary judgment in T-Mobile’s favor is
appropriate on Guerrero’s hostile work environment claim and there is no need to
address T-Mobile’s additional arguments.
B. Retaliatory Discharge
Guerrero claims she was terminated in retaliation for complaining about
Baker’s comments regarding her sexual orientation. She argues that summary
judgment on her retaliation claim is inappropriate because she met all of T-Mobile’s
employment expectations prior to the altercation, T-Mobile condoned Baker’s
comments and behavior because Lloyd and Watkins did not take action against
Baker after the August 11 altercation, and shortly after the altercation, on August
19, 2011, she was terminated. R. 44 ¶ 5. 2
To the extent Guerrero argues that Lloyd and Watkins’ failure to take action after
she told them of the August 11 incident evidences suspicious circumstances in
support of proving her claim, that argument fails. Clearly, Lloyd and Watkins were
2
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Illinois courts apply the same standard to IHRA retaliation claims that
federal courts apply to Title VII retaliation claims. Marshall v. Family Dollar
Stores, Inc., No. 11 C 1477, 2012 WL 1117897, at *2 (N.D. Ill. Apr. 3, 2012) (citing
Zaderaka v. Ill. Human Rights Comm’n, 545 N.E.2d 684, 687 (Ill. 1989) (“In
analyzing employment discrimination actions brought under the Human Rights
Act, the [Illinois Human Rights] Commission and the Illinois appellate court have
adopted the analytical framework set forth in United States Supreme Court
decisions addressing claims brought under Title VII of the Civil Rights Act of 1964 .
. . . This court will follow the same approach.”) (citations omitted)). Guerrero may
prove her claim through either the direct or indirect methods of proof. Marshall,
2012 WL 1117897, at *3 (citing Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir.
2012)). Under the direct method, a plaintiff “must present evidence of (1) a
statutorily protected activity; (2) a materially adverse action taken by the employer;
and (3) a causal connection between the two.” Turner v. The Saloon, Ltd., 595 F.3d
679, 687 (7th Cir. 2010) (citations and internal quotation marks omitted). “Under
the direct method, a plaintiff must offer direct evidence of discrimination—an
outright admission that an action was taken for discriminatory reasons—or
circumstantial evidence that points to discriminatory animus through a longer
chain of inferences.” Everett v. Cook Cnty., 655 F.3d 723, 729 (7th Cir. 2011) (citing
Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 298 (7th Cir. 2010)). Guerrero
presents no direct evidence of retaliation and addresses elements of the indirect
not in a position of authority and those who were—Knudsen and Human
Resources—promptly started an investigation into the incident.
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method of proof. 3 The Court will therefore examine the facts under the indirect
method.
Under the indirect method, a plaintiff must show that: “(1) she engaged in a
statutorily protected activity; (2) she performed her job according to her employer’s
legitimate expectations; (3) despite her satisfactory job performance, she suffered an
adverse action from the employer; and (4) she was treated less favorably than
similarly situated employees who did not engage in statutorily protected activity.”
Sitar v. Indiana Dep’t. of Transp., 344 F.3d 720, 728 (7th Cir. 2003) (citations
omitted). If the plaintiff meets these requirements, the burden shifts to the
defendant to articulate a legitimate reason for its actions. Id. If the defendant meets
this burden, then the plaintiff must show that its proffered reason is pretextual. Id.
If the plaintiff cannot show pretext, she cannot proceed with her retaliation claim
and summary judgment is appropriate. Woolner v. Flair Commc’ns Agency, Inc., No.
01 C 6043, 2004 WL 2032717, at *8-9 (N.D. Ill. Aug. 30, 2004) (citations omitted).
There are at least two reasons why summary judgment is appropriate on
Guerrero’s retaliation claim, before any burden shifts to T-Mobile. First, Guerrero
cannot demonstrate that she was meeting T-Mobile’s legitimate performance
expectations at the time of her termination. Guerrero admits that she engaged in
To the extent Guerrero pursues the direct method of proof by arguing an inference
of causation due to the timing of her termination, R. 44 ¶ 5, her claim fails.
Guerrero presents no direct evidence of retaliation and the only circumstantial
evidence that she presents is the timing of her termination, which is not suspicious
in light of her August 11 altercation with Baker. Additionally, there is no other
evidence that supports the inference of a causal link. See Scaife v. Cook Cnty., 446
F.3d 735, 742 (7th Cir. 2006).
3
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the conduct during the August 11 altercation that resulted in her termination.
Specifically, Guerrero admitted in her conversations with District Managers Bulic
and Velez and in her written statement to Bulic that she engaged in an offensive
verbal altercation with Baker where she threw sunglasses, raised her voice, used
the word “fuck” three times and used the word “nigga” six times, all in front of a
customer and other employees (and possibly mall patrons walking by the store). R.
40 ¶¶ 25, 28, 42. Guerrero also admitted at her deposition that she engaged in that
conduct. Id. ¶ 28. By admitting to that conduct, Guerrero cannot demonstrate that
she was meeting T-Mobile’s legitimate performance expectations at the time of her
termination. No reasonable factfinder could find otherwise.
Second, Guerrero has presented no evidence that she was treated less
favorably than similarly situated employees who did not engage in statutorily
protected activity. To establish her prima facie case, Guerrero must identify a
similarly-situated employee outside of her protected class whom T-Mobile treated
more favorably. Montgomery, 626 F.3d at 394. Coworkers are “similarly situated,” if
“directly comparable to the plaintiff in all material respects.” Id. at 395 (quotations
omitted). A plaintiff must show that she and an alleged comparator “engaged in
similar conduct without such different or mitigating circumstances as would
distinguish their conduct or the employer’s treatment of them.” Hall v. T.J. Maxx of
IL, LLC, No. 12 CV 9488, 2014 WL 3860306, at *6 (N.D. Ill. Aug. 6, 2014) (quoting
Hanners v. Trent, 674 F.3d 683, 692-93 (7th Cir. 2012) (quotations omitted)). A
plaintiff is also required to demonstrate that she has been treated differently than a
22
non-complaining employee by the same decision-makers. Coleman v. Donahoe, 667
F.3d 835, 848 (7th Cir. 2012) (citations omitted).
The only alleged comparable here is Baker, who engaged in the altercation
with Guerrero and was terminated by the same person and for the same reason as
Guerrero—for engaging in an altercation where both he and Guerrero each used
vulgar and offensive language with raised voices in front of a customer, other
employees, and possibly mall patrons. R. 40 ¶¶ 38, 47. Guerrero fails to establish
that any other employee who did not engage in statutorily protected activity was
treated more favorably than she was. No reasonable factfinder could find otherwise.
Her retaliation claim thus fails.
Conclusion
For the reasons stated, T-Mobile’s motion for summary judgment, R. 38, is
granted.
ENTERED:
Thomas M. Durkin
United States District Judge
Dated: March 6, 2015
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