Wembi v. Metro Air Service
Filing
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MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 7/18/2016.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
YUHE DIAMBA WEMBI,
Plaintiff,
vs.
METRO AIR SERVICE,
Defendant.
YUHE D. WEMBI,
Plaintiff,
vs.
METRO AIR SERVICE,
Defendant.
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14 C 10407
Judge Gary Feinerman
15 C 464
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
In December 2014, Yuhe Wembi brought Case 14 C 10407 against Metro Air Service,
his then-employer, alleging race and color discrimination in violation of 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and age discrimination in
violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et
seq. Doc. 9 (14 C 10407). In January 2015, after Metro fired him, Wembi brought Case 15 C
464, alleging discrimination and retaliation in violation of § 1981 and Title VII. Doc. 9 (15 C
464). Metro has moved for summary judgment on all claims. Doc. 38 (14 C 10407); Doc. 40
(15 C 464). In Case 14 C 10407, the motion is denied as to Wembi’s failure to promote claim
and granted as to all other claims. In Case 15 C 464, the motion is denied as to Wembi’s
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retaliatory termination claim as it pertains to his filing of Case 14 C 10407 and granted as to all
other claims.
Background
Consistent with the local rules, Metro filed a Local Rule 56.1(a)(3) statement of
undisputed facts along with its summary judgment motion in each case. Doc. 40 (14 C 10407);
Doc. 42 (15 C 464). All but one of the factual assertions in the Local Rule 56.1(a)(3) statements
cite evidentiary material in the record and are supported by the cited material. See N.D. Ill. L.R.
56.1(a) (“The statement referred to in (3) shall consist of short numbered paragraphs, including
within each paragraph specific references to the affidavits, parts of the record, and other
supporting materials relied upon to support the facts set forth in that paragraph.”). The exception
is a statement of negation, asserting that Wembi has not adduced evidence or testimony to
establish certain facts, Doc. 40 (14 C 10407) at ¶ 28, and so that statement could not be
supported by specific record citations. Also consistent with the local rules, Metro in each case
filed and served on Wembi a Local Rule 56.2 Notice, which explains in detail the requirements
of Local Rule 56.1. Doc. 41 (14 C 10407); Doc. 43 (15 C 464); see Ohio Nat’l Life Assurance
Corp. v. Davis, 803 F.3d 904, 906 (7th Cir. 2015) (“Local Rule 56.2 … requires a party moving
for summary judgment against a pro se litigant to inform his opponent of the procedures for
complying with Fed R. Civ. P. 56.”).
Despite receiving an additional four weeks to respond to Metro’s summary judgment
motions, Doc. 46 (14 C 10407); Doc. 48 (15 C 464), Wembi did not file a Local Rule
56.1(b)(3)(B) response to either of Metro’s Local Rule 56.1(a)(3) statements; nor did he file a
Local Rule 56.1(b)(3)(C) statement of additional facts. Instead, his response consists primarily
of documents that Metro had filed as part of its summary judgment motions, including Wembi’s
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interrogatory answers, Metro’s discovery requests, several affidavits, deposition transcripts, and
Metro’s Local Rule 56.1(a)(3) statements. Doc. 47 (14 C 10407). Although Wembi numbered
parts of his response to correspond to some of Metro’s Local Rule 56.1(a)(3) assertions from
Case 15 C 464, neither his responses to those assertions, id. at 4, nor his numbered responses to
specific paragraphs in certain affidavits that Metro filed with its summary judgment motions, id.
at 16, cite any record material or supporting declarations or affidavits. Wembi did not offer
numbered responses to Metro’s Local Rule 56.1(a)(3) statement from Case 14 C 10407, but
instead made several arguments regarding his beliefs about certain facts in the case. Id. at 38.
Wembi’s response violates Local Rule 56.1(b)(3)(B), which requires the non-movant to file “a
response to each numbered paragraph in the moving party’s statement, including in the case of
any disagreement, specific reference to the affidavits, parts of the record, and other supporting
materials relied upon.” N.D. Ill. L.R. 56.1(b)(3)(B). Wembi’s response to Metro’s affidavits is
non-compliant for the additional reason that Local Rule 56.1(b)(3)(B) requires responses “to
each numbered paragraph in the moving party’s [Local Rule 56.1(a)(3)] statement,” not directly
to the record material that supports those paragraphs. Ibid.
In a filing after the summary judgment motions were fully briefed, Wembi makes several
arguments to excuse his non-compliance with local rules. He contends that he “can’t [c]ite facts
because [Metro] refuses to provide requested documents”; that the “[l]ocal rule doesn’t mention
numbering paragraphs”; that he “state[s] personal knowledge based off what he was told by
[Metro] and what he experienced while working there”; that he did not attach record material to
his response because he requested that the court ask Metro “to bring documents to court to
support [Wembi’s] evidence”; and that he “has provided evidence since [the beginning] of the
case although his evidence is []being used against him.” Doc. 53 (15 C 464) at 1.
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These arguments are unpersuasive. Discovery began in May 2015, Doc. 21 (15 C 464),
and closed prior to November 3, 2015, Doc. 37 (15 C 464), so Wembi had ample time to alert the
court to Metro’s alleged failure to produce documents. The local rules clearly require numbered
paragraphs, see N.D. Ill. L.R. 56.1(b)(3)(A) (“numbered paragraphs”); N.D. Ill. L.R.
56.1(b)(3)(B) (“each numbered paragraph”); N.D. Ill. L.R. 56.1(b)(3)(C) (“short numbered
paragraphs”), and also require the non-movant to support its response with “specific references
to the affidavits, parts of the record, and other supporting materials relied upon” rather than nonrecord or non-affidavit assertions of personal knowledge. N.D. Ill. L.R. 56.1(b)(3)(B). Nothing
in the local rules, moreover, prevents a litigant’s evidence from being used against him.
The Seventh Circuit “has consistently upheld district judges’ discretion to require strict
compliance with Local Rule 56.1.” Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015)
(citing cases); see also Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) (“Because of the
high volume of summary judgment motions and the benefits of clear presentation of relevant
evidence and law, we have repeatedly held that district judges are entitled to insist on strict
compliance with local rules designed to promote the clarity of summary judgment filings.”);
Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (“Because of the important
function local rules like Rule 56.1 serve in organizing the evidence and identifying disputed
facts, we have consistently upheld the district court’s discretion to require strict compliance with
those rules.”) (internal quotation marks omitted). Whether they seek or oppose summary
judgment, parties have a right to expect that Local Rule 56.1 will be enforced and that facts not
properly presented under the rule will be disregarded. See Curtis v. Costco Wholesale Corp.,
807 F.3d 215, 219 (7th Cir. 2015) (“The purpose of Rule 56.1 is to have the litigants present to
the district court a clear, concise list of material facts that are central to the summary judgment
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determination. It is the litigants’ duty to clearly identify material facts in dispute and provide the
admissible evidence that tends to prove or disprove the proffered fact. A litigant who denies a
material fact is required to provide the admissible evidence that supports his denial in a clear,
concise, and obvious fashion, for quick reference of the court. The district court did not abuse its
discretion in finding Curtis failed to comply with Rule 56.1 requirements.”). Wembi’s status as
a pro se litigant does not excuse his non-compliance with the rule. See McNeil v. United
States, 508 U.S. 106, 113 (1993) ( “[W]e have never suggested that procedural rules in ordinary
civil litigation should be interpreted so as to excuse mistakes by those who proceed without
counsel.”); Maddox v. State Auto Prop. & Cas. Ins. Co., 638 F. App’x 533, 534 (7th Cir. 2016)
(“[A] district court is entitled to enforce its local rules, even against pro se litigants.”); Whitmore
v. Boelter Brands, 576 F. App’x 609, 610 (7th Cir. 2014) (“[A]lthough we liberally construe the
filings of pro se plaintiffs, district courts may require pro se litigants to comply strictly with local
rules.”); Wilson v. Kautex, Inc., 371 F. App’x 663, 664 (7th Cir. 2010) (“[S]trictly enforcing
Local Rule 56.1 was well within the district court’s discretion, even though Wilson is a pro se
litigant.”) (citation omitted); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (“[E]ven pro
se litigants must follow rules of civil procedure.”). Accordingly, the court accepts as true the
facts set forth in Metro’s Local Rule 56.1(a)(3) statements in both cases. See Curtis, 807 F.3d at
218 (“When a responding party’s statement fails to dispute the facts set forth in the moving
party’s statement in the manner dictated by the rule, those facts are deemed admitted for
purposes of the motion.”) (internal quotation marks omitted); Parra v. Neal, 614 F.3d 635, 636
(7th Cir. 2010); Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 393 (7th Cir. 2009); Cady, 467
F.3d at 1061; Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006).
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That said, the court is mindful that “a nonmovant’s failure to ... comply with Local Rule
56.1 … does not … automatically result in judgment for the movant,” which “must still
demonstrate that it is entitled to judgment as a matter of law.” Keeton v. Morningstar, Inc., 667
F.3d 877, 884 (7th Cir. 2012). The court therefore will recite the facts in Metro’s Local Rule
56.1(a)(3) statements and then determine whether, on those facts, it is entitled to summary
judgment. The court sets forth the following facts as favorably to Wembi, the non-movant, as
the record and Local Rule 56.1 allow. See Woods v. City of Berwyn, 803 F.3d 865, 867 (7th Cir.
2015). In considering Metro’s summary judgment motions, the court must assume the truth of
those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281
(7th Cir. 2015). Because Case 14 C 10407 provides much of the background for Case 15 C 464,
both cases involve related “questions of fact,” and “considerations of judicial economy strongly
favor simultaneous resolution of all claims growing out of one event,” Ikerd v. Lapworth, 435
F.2d 197, 204 (7th Cir. 1970), the court discusses the facts of both cases together.
Metro handles the transfer of bulk freight items at a facility near O’Hare International
Airport. Doc. 42 (15 C 464) at ¶ 3. Metro hired Wembi on November 16, 2011, as a mail
handler, and he remained continuously employed until his termination on January 5, 2015. Doc.
40 (14 C 10407) at ¶ 1; Doc. 42 (15 C 464) at ¶ 1. At Metro, mail handlers work the hours
necessary to meet the demands of the business; some of the factors that determine these
demands, such as weather, traffic delays, and the awarding of contracts, are outside of the
company’s control. Doc. 40 (14 C 10407) at ¶ 4; Doc. 42 (15 C 464) at ¶ 5. Mail handlers do
not have guaranteed hours, and seniority is not a factor in their scheduling. Doc. 40 (14 C
10407) at ¶ 4. Wembi’s duties involved unloading trucks arriving from the East Coast and
distributing mail bundles to different containers for shipment elsewhere, and his work hours
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varied with the needs of the business throughout his entire employment with Metro. Doc. 42 (15
C 464) at ¶¶ 5-6.
Wembi initially worked between six and eight hours per week. Doc. 40 (14 C 10407) at
¶ 2. In August 2012, Metro entered into a new contract with the U.S. Postal Service (“USPS”).
Id. at ¶ 4. Because the USPS contract was a new engagement, Metro management was unsure of
how to staff it and how many workers and work hours were required to perform it. Ibid.
Thomas Ziebell, Wembi’s supervisor, approached Wembi in August 2012 and offered him the
opportunity to work additional hours on the shift associated with work on the USPS contract. Id.
at ¶¶ 4-5. Wembi accepted and began working up to forty hours per week, although no workers
on the shift were guaranteed a certain number of hours. Id. at ¶¶ 2, 5-6; Doc. 42 (15 C 464) at
¶ 4.
On December 17, 2012, Wembi filed a charge with the Illinois Department of Human
Rights (“IDHR”), alleging that his hours were reduced on November 4, 2012, on account of his
race, which is African-American. Doc. 40 (14 C 10407) at ¶ 7; Doc. 40-4 (14 C 10407); Doc. 42
(15 C 464) at ¶ 8; Doc. 42-5 (15 C 464). The charge, which did not allege age discrimination,
Doc. 40-4 (14 C 10407) at 2; Doc. 42-5 (15 C 464) at 2, alleged that Wembi’s hours had been
reduced from forty to nineteen per week. Doc. 40 (14 C 10407) at ¶ 8. In an interrogatory
response, Wembi indicated that he believed that Metro hired three new full-time employees, two
white (Aljazi Zaid and Eluedin Tatarevic) and one Latino (John Paul Vargas), who worked 32-40
hours per week as mail handlers. Ibid. Wembi also said that after he threatened to file an IDHR
charge over the reduction in hours, Ziebell told him that the IDHR “does not work for black
people.” Doc. 40-3 (14 C 10407) at 3. Wembi testified at his deposition that his reduced hours
were the only evidence supporting his race discrimination claim and that his only documentary
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evidence of the reduction was a single Metro work schedule from one week in November 2012.
Doc. 40 (14 C 10407) at ¶¶ 15-16; Doc. 40-6 (14 C 10407).
During the week of November 4, 2012, Wembi, Zaid, and Vargas each worked 5.1 hours,
and Tatarevic worked 5.3 hours. Doc. 40 (14 C 10407) at ¶¶ 12-14. Wembi testified at his
deposition that after he complained to Ziebell, Ziebell increased his hours, and after he filed the
IDHR charge, Ziebell “let [Wembi] work for as many hours [he] want[ed] to.” Id. at ¶ 19. In
November 2012, Wembi averaged 21.68 hours per week, and Tatarevic, Zaid, and Vargas
averaged 17.43, 20.13, and 17.95 hours per week, respectively. Id. at ¶ 14. For the period
between November 4, 2012, and January 6, 2013, Wembi averaged 23.17 hours per week, and
Tatarevic, Zaid, and Vargas averaged 17.33, 19.38, and 16.99 hours per week, respectively. Ibid.
When asked at his deposition for facts supporting his discrimination claim, Wembi said:
I don’t care about your facts. I’m telling you what it is. Discrimination is
discrimination. It doesn’t matter what you do or didn’t [sic] do it. It’s
discrimination to me. … It is facts in my evidence.
Id. at ¶ 20. Wembi also stated that in his four years at Metro, he was subject to discrimination
only for the month of November 2012. Id. at ¶¶ 21a-21b (Metro’s Local Rule 56.1(a)(3)
statement in Case 14 C 10407 includes two Paragraph 21s.). On January 14, 2014, IDHR
dismissed Wembi’s discrimination charge for lack of substantial evidence. Doc. 40-14 (14 C
10407). Wembi testified at his deposition that he doesn’t “trust” IDHR and that in his “opinion,”
he doesn’t “believe” the result of the IDHR investigation. Doc. 40 (14 C 10407) at ¶ 22.
On December 11, 2013, Wembi filed another discrimination charge with IDHR, alleging
that between December 1, 2013, and December 10, 2013, Ziebell, who had not previously
commented on Wembi’s first IDHR charge, harassed him and retaliated against him for filing
that charge. Doc. 40 (14 C 10407) at ¶ 23; Doc. 40-17 (14 C 10407); Doc. 42 (15 C 464) at ¶¶ 89; Doc. 42-6 (15 C 464). The second IDHR charge did not allege race or age discrimination.
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Doc. 40-17 (14 C 10407); Doc. 42-6 (15 C 464). Rather, it alleged that Ziebell told Wembi that
“he [Ziebell] does not care if I have an attorney, or if I file additional charges with [IDHR]; he
perceives that I have been disrespectful towards him because I have failed to speak with him
about the discrepancies we have between each other,” which were related to whether Wembi was
entitled to pay for arriving at work when there was no work to be done. Doc. 40 (14 C 10407) at
¶¶ 23, 25; Doc. 42 (15 C 464) at ¶ 8. On August 26, 2014, the IDHR dismissed the second
charge for lack of substantial evidence. Doc. 42 (15 C 464) at ¶ 10; Doc. 42-10 (15 C 464).
At the time of Ziebell’s alleged harassment, Metro had a company policy prohibiting
workplace harassment. Doc. 40 (14 C 10407) at ¶ 27. Ziebell was demoted and fired shortly
after the above-described incident, and Ziebell’s alleged statements are the sole basis for
Wembi’s harassment claim. Id. at ¶¶ 28-29. Following that incident, Wembi continued to work
for Metro without interruption, drew the same level of pay, worked the same schedule (between
23-38 hours per week), and was not disciplined or demoted. Id. at ¶¶ 26, 30-31. From
December 2012 until his termination in January 2015, no other member of management made
any comments about Wembi’s IDHR charges. Doc. 42 (15 C 464) at ¶ 9. Wembi’s hourly pay
rate remained unchanged throughout his entire time of employment at Metro, although Metro’s
two Local Rule 56.1(a)(3) statements give slightly different accounts of that rate: one says that it
was $21.42 per hour, and the other $21.60. Doc. 40 (14 C 10407) at ¶ 3; Doc. 42 (15 C 464) at
¶¶ 2, 6.
On December 29, 2014, Wembi filed Case 14 C 10407. Doc. 9 (14 C 10407). In
December 2014, USPS canceled a contract with Metro—the record does not indicate whether it
was the same contract that was signed in August 2012—which led to a reduction in Metro’s
revenue. Doc. 42 (15 C 464) at ¶ 11; Doc. 42-2 (15 C 464) at ¶ 7. As a result, Metro had to
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terminate numerous employees. Doc. 42 (15 C 464) at ¶ 12. On January 5, 2015, Metro fired
twenty-four workers, including Wembi. Id. at ¶ 13. Of the twenty-four terminated employees,
four were Caucasian, seven (including Wembi) were African-American, eleven were Hispanic,
one was Asian, and one’s ethnicity was not identified. Id. at ¶ 14; Doc. 42-12 (15 C 464). In
addition to several employees whose ethnicity Metro has not verified, Metro retained seventeen
Caucasian, twelve African-American, three Hispanic, and four Asian employees. Doc. 42 (15 C
464) at ¶ 14.
Following his firing, Wembi did not file a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) or IDHR regarding the termination. Id. at
¶ 16. On January 16, 2015, he filed Case 15 C 464. Doc. 9 (15 C 464).
Discussion
In Case 14 C 10407, Wembi alleges age, color, and race discrimination, as manifested in
the November 2012 reduction in his work hours, Ziebell’s December 2013 harassment, and
Metro’s failure to promote him. Doc. 9 (14 C 10407) at 3-4. In Case 15 C 464, Wembi alleges
that he was terminated due to his color and also in retaliation for his previous allegations of
discrimination. Although the complaint in Case 15 C 464 does not specify whether the
retaliation was for Wembi’s filing the IDHR charges, for his filing Case 14 C 10407, or for both,
“pro se pleadings … are to be liberally construed,” Anderson v. Hardman, 241 F.3d 544, 545
(7th Cir. 2001); see also Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (“Because Perez’s
complaint is pro se, we construe it liberally, holding it to a less stringent standard than formal
pleadings drafted by lawyers.”) (internal quotation marks omitted), and so the court will assume
that the complaint alleges retaliation both for the IDHR charges and for filing 14 C 10407. (The
complaint in Case 15 C 464 also alleges discriminatory failure to promote, but that claim is
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duplicative of the failure to promote claim in Case 14 C 10407 and thus will not be discussed
separately.) Metro seeks summary judgment on all claims. Unless otherwise noted, citations to
docket entries in the following sections are to the docket for the case discussed in that section.
I.
Case 14 C 10407
A.
Title VII and § 1981 Race and Color Discrimination
“The same requirements for proving discrimination apply to claims under Title VII [and]
§ 1981,” Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845, 850 n.7 (7th Cir. 2010), and for
ease of exposition, the court will cite only Title VII precedents in addressing Wembi’s Title VII
and § 1981 race and color discrimination claims. A Title VII race discrimination plaintiff may
seek to defeat summary judgment under the direct or indirect methods of proof. See Chaib v.
Geo Grp., Inc., 819 F.3d 337, 341 (7th Cir. 2016); Carothers v. Cook Cnty., 808 F.3d 1140,
1148-49 (7th Cir. 2015).
“Under the ‘direct method,’ the plaintiff may avoid summary judgment by presenting
sufficient evidence, either direct or circumstantial, that the employer’s discriminatory animus
motivated an adverse employment action.” Harper v. Fulton Cnty., 748 F.3d 761, 765 (7th Cir.
2014) (internal quotation marks omitted); see also Coleman v. Donahoe, 667 F.3d 835, 845 (7th
Cir. 2012). The appropriate focus under the direct method “is not whether the evidence offered
is direct or circumstantial but rather whether the evidence points directly to a discriminatory
reason for the employer’s action.” Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008) (internal
quotation marks omitted); see also Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013)
(“The plaintiff’s task in opposing a motion for summary judgment is straightforward: he must
produce enough evidence, whether direct or circumstantial, to permit the trier of fact to find that
his employer took an adverse action against him because of his race.”); Everett v. Cook Cnty.,
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655 F.3d 723, 729 (7th Cir. 2011); Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664,
672 (7th Cir. 2011).
“Direct evidence is evidence that, if believed by the trier of fact, would prove
discriminatory conduct on the part of the employer without reliance on inference or presumption.
In short, [d]irect evidence essentially requires an admission by the decision-maker that his
actions were based upon the prohibited animus.” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498,
504 (7th Cir. 2004) (alteration in original) (citations and internal quotation marks omitted); see
also Roberts v. Columbia Coll. Chi., 821 F.3d 855, 865 (7th Cir. 2016); Harper, 748 F.3d at 765;
Morgan, 724 F.3d at 995; Coleman, 667 F.3d at 860; Everett, 655 F.3d at 729. The record
unsurprisingly includes no direct evidence that Metro discriminated against Wembi due to his
race or color.
“A plaintiff can also prevail under the direct method of proof by constructing a
convincing mosaic of circumstantial evidence that allows a jury to infer intentional
discrimination by the decisionmaker. That circumstantial evidence, however, must point directly
to a discriminatory reason for the employer’s action.” Rhodes, 359 F.3d at 504 (citations and
internal quotation marks omitted); see also Roberts, 821 F.3d at 865; Carothers, 808 F.3d at
1149; Chaib v. Indiana, 744 F.3d 974, 982 (7th Cir. 2014); Perez v. Thorntons, Inc., 731 F.3d
699, 710-11 (7th Cir. 2013); Morgan, 724 F.3d at 995-96; Brown v. Advocate S. Suburban
Hosp., 700 F.3d 1101, 1105 (7th Cir. 2012); Everett, 655 F.3d at 729 (explaining that
circumstantial evidence is “evidence that points to discriminatory animus through a longer chain
of inferences”). Circumstantial evidence typically falls into one of three categories: “(1)
suspicious timing, ambiguous statements (oral or written) or behavior toward, or comments
directed at, other employees in the protected group; (2) evidence, whether or not rigorously
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statistical, that similarly-situated employees outside the protected class received systematically
better treatment; or (3) evidence that the employer offered a pretextual reason for an adverse
employment action.” Boss v. Castro, 816 F.3d 910, 916-17 (7th Cir. 2016); see also Simpson v.
Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 790 (7th Cir. 2015); Chaib v. Indiana, 744 F.3d at
982; Perez, 731 F.3d at 711; Morgan, 724 F.3d at 995-96; Coleman, 667 F.3d at 860; Diaz v.
Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th Cir. 2011); Silverman v. Bd. of Educ., 637 F.3d
729, 734 (7th Cir. 2011). To overcome summary judgment, circumstantial evidence need not
“combine to form a tidy, coherent picture of discrimination, in the same way the tiles of a mosaic
come together to form a tidy, coherent image, in order for a plaintiff to survive summary
judgment.” Morgan, 724 F.3d at 997. Rather, “[i]f the plaintiff can assemble from various
scraps of circumstantial evidence enough to allow the trier of fact to conclude that it is more
likely than not that discrimination lay behind the adverse action, then summary judgment for the
defendant is not appropriate, and the plaintiff may prevail at trial even without producing any
‘direct’ proof.” Id. at 996; see also Greengrass v. Int’l Monetary Sys., 776 F.3d 481, 486 (7th
Cir. 2015); Muhammad v. Caterpillar, Inc., 767 F.3d 694, 700 (7th Cir. 2014).
A plaintiff who cannot forestall summary judgment under the direct method may rely on
the indirect method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973). The indirect method has three steps. First, the plaintiff must “make a prima facie
showing that (1) she is a member of a protected class; (2) she met her employer’s legitimate job
expectations; (3) she suffered an adverse employment action; and (4) similarly situated
employees outside of the protected class received more favorable treatment.” Kuttner v. Zaraba,
819 F.3d 970, 976 (7th Cir. 2016) (internal quotation marks omitted); see also Coleman, 667
F.3d at 845. Second, if the plaintiff makes out a prima facie case, “[t]he burden … shift[s] to the
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employer to articulate some legitimate, nondiscriminatory reason” for its action. Ibid. (internal
quotation marks omitted). Third, if the defendant articulates a legitimate, non-discriminatory
reason, the burden shifts back to the plaintiff, who must provide evidence that the defendant’s
stated reason is pretextual. Ibid.
1.
November 2012 Reduction in Hours
Wembi first alleges that he was guaranteed a morning shift and “40+ Hours” of work per
week, but that Metro violated this guarantee when it drastically reduced his hours for the pay
period ending on November 4, 2012. Doc. 47 at 14. He maintains that although Metro attributed
the reduction in hours to a loss of revenue, non-African-American employees Zaid, Tatarevic,
and Vargas were hired for the same position and worked more hours than he did during this
period. Id. at 38. Wembi offers no evidence that supports these assertions.
During the pay period in question, Zaid and Vargas worked precisely the same number of
hours (5.1) as Wembi, and Tatarevic worked only 0.2 hours (twelve minutes) more. Doc. 40 at
¶¶ 12-14. Wembi concedes that after he complained about the reduced hours, Ziebell increased
his hours, and that, after Wembi filed his IDHR charge, Ziebell allowed him to work as many
hours as he wanted. Id. at ¶ 18. Indeed, over the next two months, Wembi averaged more than
twenty-five hours per week, more than Zaid, Tatarevic, or Vargas. Id. at ¶ 14. Wembi also has
not adduced any evidence that supports the notion that he was guaranteed forty hours of work per
week. He therefore “provides no evidence, statistical or otherwise, to corroborate his belief” that
he suffered anything other than a reduction in work hours that applied to all Metro employees
that he identifies as comparators. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1116 (7th Cir.
2009). Because Wembi does not allege suspicious timing or pretext, he cannot prevail under the
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direct method; and because he has not shown that similarly situated employees received more
favorable treatment, he cannot prevail under the indirect method.
An independent ground for summary judgment is that Wembi has not demonstrated that
he suffered an adverse employment action. Adverse actions may include:
(1) cases in which the employee’s compensation, fringe benefits, or other
financial terms of employment are diminished, including termination; (2)
cases in which a nominally lateral transfer with no change in financial terms
significantly reduces the employee’s career prospects by preventing her from
using her skills and experience, so that the skills are likely to atrophy and her
career is likely to be stunted; and (3) cases in which the employee is not
moved to a different job or the skill requirements of her present job altered,
but the conditions in which she works are changed in a way that subjects her
to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly
negative alteration in her workplace environment.
Dass v. Chi. Bd. of Educ., 675 F.3d 1060, 1069 (7th Cir. 2012) (internal quotation marks
omitted). “To rise to the level of an adverse action, a change must be one that a reasonable
employee would find to be materially adverse.” Bagwe v. Sedgwick Claims Mgmt. Servs., Inc.,
811 F.3d 866, 889 (7th Cir. 2016) (internal quotation marks omitted). “This means that the
action must be more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir. 2012). In other words,
“an adverse action must materially alter the terms of conditions of employment to be actionable.”
Ibid.
Wembi believes that Metro doctored his and his comparators’ timesheets for purposes of
this litigation. Doc. 47 at 38. But Wembi adduces no evidence that Metro actually did so, no
evidence that contradicts Metro’s timesheets, and no evidence creating a genuine factual dispute
about Wembi’s reduction in hours. Wembi also offers no evidence about the number of hours
that he typically worked prior to the pay period ending November 4, 2012. He offers only an
illegible schedule for a single unspecified week in November 2012, Doc. 40-6, but adduces no
15
evidence that this schedule reflected the hours that the employees actually worked, or that, even
if they did, they represented a reduction in hours to which Wembi was uniquely subject. Wembi
suffered no change in his pay rate, employment status, or working conditions, and he was not
subject to any action beyond the alleged reduction in hours, for which he has no evidence. He
therefore suffered no adverse action under the governing standard.
For these reasons, Metro is entitled to summary judgment on his discrimination claims
relating to the November 2012 events.
2.
December 2013 Harassment and Retaliation
Wembi next contends that his alleged harassment by Ziebell in December 2013
constituted an adverse action, both as retaliation (for filing his first IDHR charge in December
2012) and by creating a hostile work environment. A hostile work environment claim qualifies
as a materially adverse employment action. See Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742,
745 (7th Cir. 2002) (holding that materially adverse employment actions include “cases of
harassment-mistreatment of an employee by coworkers or supervisors that is sufficiently severe
to worsen substantially his conditions of employment as they would be perceived by a reasonable
person in the position of the employee”) (citing Faragher v. City of Boca Raton, 524 U.S. 775,
786-88 (1998)). “Surviving summary judgment on a hostile work environment claim requires
sufficient evidence demonstrating (1) the work environment was both objectively and
subjectively offensive; (2) the harassment was based on membership in a protected class or in
retaliation for protected behavior; (3) the conduct was severe or pervasive; and (4) there is a
basis for employer liability.” Boss, 816 F.3d at 920.
The third element of a hostile work environment claim “is in the disjunctive—the
conduct must be either severe or pervasive.” Vance v. Ball State Univ., 646 F.3d 461, 469 (7th
16
Cir. 2011), aff’d, 133 S. Ct. 2434 (2013). This means that “one extremely serious act of
harassment could rise to an actionable level[,] as could a series of less severe acts.” Hall v. City
of Chicago, 713 F.3d 325, 330 (7th Cir. 2013). A court addressing this element must consider
“factors like the frequency of improper conduct, its severity, whether it is physically threatening
or humiliating (as opposed to a mere offensive utterance), and whether it unreasonably interferes
with the employee’s work performance.” Boss, 816 F.3d at 920. In so doing, the court must
bear in mind that Title VII does not impose a “general civility code” in the workplace and that
“simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of employment.” Faragher, 524
U.S. at 788 (citation and internal quotation marks omitted); see also McPherson v. City of
Waukegan, 379 F.3d 430, 438-39 (7th Cir. 2004). A workplace rises to the level of an
objectively hostile work environment only if it is “permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Alexander v. Casino Queen, Inc., 739
F.3d 972, 982 (7th Cir. 2014).
Wembi has not adduced evidence sufficient to support his claim that Ziebell created a
hostile work environment. Wembi contends that Ziebell harassed him “by indicating that he
does not care if [Wembi has] an attorney, or … file[s] additional charges with” IDHR. Doc. 4017 at 2. Although Wembi’s second IDHR charge indicates that the harassment occurred from
December 1 to December 10, 2013, id. at 1, he has not shown that it was severe or pervasive
throughout this period or that any of Ziebell’s actions qualifies as an “extremely serious act of
harassment.” Hall, 713 F.3d at 330. There is no evidence that Wembi’s and Ziebell’s
interactions occurred with such regularity that they altered the terms and conditions of his
17
employment. Nor does the record indicate that they interfered at all, much less unreasonably so,
with Wembi’s work performance. See Mannie v. Potter, 394 F.3d 977, 983 (7th Cir. 2005)
(affirming a grant of summary judgment for the defendant on a hostile work environment claim,
in part because the plaintiff offered no proof that she “was unable to perform her job because of
the conduct of her supervisors and co-workers”). To the contrary, following the incident,
Wembi’s duties, pay, and hours remained the same; he was not disciplined, demoted, or
suspended; and he remained at Metro without incident or complaint for more than a year.
Accordingly, because the acts of which Wembi complains are not objectively severe or
pervasive, they cannot support a hostile work environment claim.
With no hostile work environment claim, Wembi has no materially adverse employment
action, which means that he also has no viable Title VII retaliation claim either. As with other
Title VII discrimination claims, Wembi may defend the retaliation claim under either the direct
or indirect methods. See Boss, 816 F.3d at 918. To forestall summary judgment under the direct
method, Wembi “must show that (1) he engaged in protected activity; (2) he suffered a
materially adverse employment action; and (3) there was a causal link between the protected
activity and the adverse action.” Ibid. “To prove retaliation under the indirect method, a
plaintiff must show that (1) he engaged in protected activity; (2) he suffered a materially adverse
employment action; (3) he was meeting his employer’s legitimate expectations; and (4) he was
treated less favorably than similarly-situated employees who did not engage in protected
activity.” Ibid. Because both methods require that Wembi have suffered an adverse employment
action, and because he did not, summary judgment is granted on the retaliation claim in Case 14
C 10407.
18
3.
Failure to Promote
The complaint alleges that Metro failed to promote Wembi due to his race and color.
Doc. 9 at 4. Although Metro’s motion purports to seek “summary judgment as to all claims
contained in” the complaint, Doc. 38 at 1, its briefs do not mention the failure to promote claim.
Accordingly, Metro has forfeited the point. See G & S Holdings LLC v. Cont’l Cas. Co., 697
F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held that a party waives an argument by
failing to make it before the district court. That is true whether it is an affirmative argument in
support of a motion to dismiss or an argument establishing that dismissal is inappropriate.”)
(citations omitted); Costello v. Grundon, 651 F.3d 614, 635 (7th Cir. 2011) (“As the moving
party, the [defendant] had the initial burden of identifying the basis for seeking summary
judgment.”); Titran v. Ackman, 893 F.2d 145, 148 (7th Cir. 1990) (“When a party moves for
summary judgment on ground A, the opposing party need not address grounds B, C, and so
on.”). Summary judgment is therefore denied on the failure to promote claim.
B.
Age Discrimination
In addition to race and color discrimination, the complaint in Case 14 C 10407 alleges
that Metro discriminated against Wembi on account of his age in violation of the ADEA. Doc. 9
at 4. Metro contends that Wembi failed to exhaust his administrative remedies, as neither of his
IDHR charges alleged age discrimination. Doc. 39 at 10.
“In order to bring an ADEA claim in federal court, a plaintiff must first have raised it in a
timely EEOC charge.” Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 527 (7th Cir. 2003); see
also 29 U.S.C. § 626(d)(1) (“No civil action may be commenced by an individual under this
section until 60 days after a charge alleging unlawful discrimination has been filed with the
[EEOC].”); Miller v. Am. Airlines, Inc., 525 F.3d 520, 525 (7th Cir. 2008) (“A plaintiff generally
19
cannot bring a claim in an ADEA lawsuit that was not alleged in the EEOC charge.”); Vela v.
Vill. of Sauk Vill., 218 F.3d 661, 663-64 (7th Cir. 2000). Because “IDHR automatically crossfiles with the EEOC a charge that alleges employment discrimination prohibited by federal law,”
IDHR charges suffice for the exhaustion requirement. Gray-Brock v. Ill. Am. Water Co., 609 F.
App’x 867, 868 n.1 (7th Cir. 2015). The exhaustion rule “serves the dual purpose of affording
the EEOC and the employer an opportunity to settle the dispute through conference, conciliation,
and persuasion, and of giving the employe[r] some warning of the conduct about which the
employee is aggrieved …. For allowing a complaint to encompass allegations outside the ambit
of the predicate EEOC charge would frustrate the EEOC’s investigatory and conciliatory role, as
well as deprive the charged party of notice of the charge.” Cheek v. W. & S. Life Ins. Co., 31
F.3d 497, 500 (7th Cir. 1994) (citation omitted). “For a plaintiff to proceed on a claim not
raised in an EEOC charge, there must be a reasonable relationship between the allegations in the
charge and the claims in the complaint, and it must appear that the claim in the complaint can
reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.”
Jones v. Res-Care, Inc., 613 F.3d 665, 670 (7th Cir. 2010) (quoting Vela, 218 F.3d at 664)
(internal quotation marks omitted). Such claims must be “like or reasonably related to the
administrative charges.” Reynolds v. Tangherlini, 737 F.3d 1093, 1102 (7th Cir. 2013) (internal
quotation marks omitted).
Wembi’s IDHR charges do not explicitly allege age discrimination. Doc. 40-4; Doc. 4017. The dispositive question, then, is whether the claims explicitly set forth in the IDHR charges
are “like or reasonably related” to the age-based claim set forth in the complaint, such that the
age-based claim can reasonably have been expected to grow out of an EEOC investigation into
the allegations in the IDHR charges. Wembi’s first IDHR charge alleges only a “reduction in
20
hours … because of [his] race, black,” and contains only two “prima facie allegations”: “1. My
race is black” and “2. My job performance as mail handler meets [Metro’s] expectations, I was
hired on November 16, 2011.” Doc. 40-4 at 1. Wembi’s second IDHR charge alleges only
“[h]arassment, beginning on or about December 1, 2013 and continuing through the present
(December 10, 2013), in retaliation for filing a previous charge of discrimination against
[Metro].” Doc. 40-17 at 1. It contains four allegations, none of which mention age
discrimination or Wembi’s age. Id. at 1-2.
Although “[c]ourts review the scope of an EEOC charge liberally,” Huri v. Office of the
Chief Judge of the Circuit Court of Cook Cnty., 804 F.3d 826, 831 (7th Cir. 2015), the factual
allegations in Wembi’s charges are insufficient to satisfy the “like or reasonably related”
standard for purposes of his age discrimination claim. “There is nothing about [Wembi’s IDHR]
charge[s] that would reasonably lead one to conclude that Wembi was a victim of age
discrimination.” Ajayi, 336 F.3d at 527. Wembi
doesn’t mention age anywhere in the charge. The date-of-birth field on the
charge form [in both complaints] is left blank, the age-discrimination box is
unchecked, and, in describing the charge[s], [he] doesn’t specify the ages of
other employees who allegedly received more favorable treatment … nor any
other facts that might have alerted the [IDHR] to the claim.
Ibid. Because it is impossible to infer from Wembi’s charge that his age played any role in
Metro’s allegedly discriminatory or retaliatory conduct, his ADEA claim is not like or
reasonably related to the allegations in his IDHR charges. See Moore v. Vital Prods., Inc., 641
F.3d 253, 257 (7th Cir. 2011) (“At best, the EEOC charge can be read to allege a hostile work
environment and retaliation …. These harassment and retaliation allegations are not like or
reasonably related to Moore’s discriminatory discharge claim.”); Dandy v. United Parcel Serv.,
Inc., 388 F.3d 263, 270 (7th Cir. 2004) (holding that allegations of “unequal pay or a hostile
work environment” were not reasonably related to an EEOC charge that alleged failure to
21
promote “on account of … race and gender”); Fairchild v. Forma Sci., Inc., 147 F.3d 567, 57576 (7th Cir. 1998) (holding that the allegations in the plaintiff’s EEOC charge were not
reasonably related to the ADA disability discrimination claim in his federal complaint because
“[the plaintiff] did not support his charge with specific facts” and “made factual allegations that
could only support one kind of discrimination–discrimination based on age”); Cheek v. Peabody
Coal Co., 97 F.3d 200, 202-03 (7th Cir. 1996) (“The allegations in Cheek’s EEOC complaint,
which asserted only disparate treatment and did not in any way advert to sexual harassment, are
completely unrelated to those that underlie her harassment charges .… Not having raised the
[harassment] claim or even its seeds before the EEOC, Cheek was not entitled to bring it in her
Title VII action.”); Rush v. McDonald’s Corp., 966 F.2d 1104, 1111 (7th Cir. 1992) (holding that
“the racial harassment claims [in the federal complaint] were never properly presented to the
EEOC” because the plaintiff's EEOC charge did not contain specific facts supporting a race
discrimination claim). Therefore, Wembi’s ADEA claim was not exhausted, and Metro is
entitled to summary judgment on that claim.
II.
Case 15 C 464
The complaint in Case 15 C 464 states claims for discriminatory and retaliatory
termination. Doc. 9 at 3-4. Wembi may defeat summary judgment on these claims under either
the direct or indirect methods.
With regard to the discriminatory termination claim, Wembi has not adduced sufficient
evidence under either method. Although, as discussed below, the timing of his termination was
suspicious, nothing about that suspicious timing “points directly to a discriminatory reason”—as
opposed to a retaliatory reason—for his firing. Carothers, 808 F.3d at 1149 (internal quotation
marks omitted). The only arguably ambiguous statement about race or color was Ziebell’s
22
December 2012 comment about IDHR “not work[ing] for black people,” but Ziebell was
discharged over a year before Wembi’s termination, and there is no evidence that anybody with
decisionmaking authority over Wembi’s employment bore animus against him on the basis of his
race or color.
Wembi also identifies no similarly situated employees who were treated differently, as he
does not present any possible comparators. As a general rule, a plaintiff must show that a
comparator “(1) dealt with the same supervisor, (2) was subject to the same standards, and (3)
engaged in similar conduct without such differentiating or mitigating circumstances as would
distinguish his conduct or the employer’s treatment of him.” Orton-Bell v. Indiana, 759 F.3d
768, 777 (7th Cir. 2014) (alterations and internal quotation marks omitted). Wembi points to no
individuals to whom he would be properly compared and who were not terminated. Although
Wembi contends that “[a]ll of those who were fired were called back except” for Wembi, Doc.
47 at 4 (14 C 10407), he adduces no evidence to support that assertion. Further, as Metro argues,
Doc. 41 at 6, Wembi was terminated along with twenty-three other employees of varying races
and ethnicities (at least six of whom were African-American), and Metro retained employees of
various races and ethnicities (including at least twelve African-Americans). Finally, Metro has
adduced evidence that it needed to reduce the size of its workforce following its loss of the USPS
contract, Doc. 42 at ¶ 11, and Wembi has not adduced evidence that this reason was a pretext to
disguise racial animus. Accordingly, he cannot forestall summary judgment on the
discriminatory termination claim under the direct method.
As for the indirect method, Metro concedes that Wembi was a member of a protected
category and met Metro’s legitimate expectations, and that his termination was an adverse
employment action. Doc. 41 at 7-9. And although Metro contends that no employee similarly
23
situated to Wembi was retained, because “there is absolutely no proof of any Caucasian
employee who asserted rights under Title VII or … 42 U.S.C. § 1981 who was retained,” id. at 9,
similarly situated employees need not be “clones.” Coleman, 667 F.3d at 846 (internal quotation
marks omitted); see Sweatt v. Union Pac. R.R. Co., 796 F.3d 701, 709 (7th Cir. 2015). As Metro
concedes, many employees were retained when Wembi was terminated. Some of those retained
employees were not African-American. That is sufficient for Wembi to make a prima facie case
under the indirect method, shifting the burden to Metro. See Coleman, 667 F.3d at 845.
As noted above, however, Metro has articulated a legitimate, nondiscriminatory reason
for Wembi’s termination: it needed to reduce its workforce following the loss of the USPS
contract. Doc. 42 at ¶ 11. This shifts the burden back to Wembi to show that Metro’s reason is
pretextual. See Coleman, 667 F.3d at 845. But Wembi has not “present[ed] evidence that …
permits an inference of unlawful discrimination.” Ibid. Although some non-African-American
employees were retained, others were let go, and Wembi adduces no evidence to suggest that
discriminatory (as opposed to retaliatory) animus motivated his termination. Accordingly, he
cannot meet his burden under the indirect method on the discriminatory termination claim, and
Metro is entitled to summary judgment on that claim.
Metro is not entitled to summary judgment on Wembi’s retaliatory termination claim.
To survive summary judgment under the direct method, Wembi “must show that (1) he engaged
in protected activity; (2) he suffered a materially adverse employment action; and (3) there was a
causal link between the protected activity and the adverse action.” Boss, 816 F.3d at 918. Metro
concedes the first two elements, but contends that “there is no evidence of a causal connection
between [Wembi’s] assertion of right and his layoff.” Doc. 41 at 7-8.
24
Metro is correct as to the IDHR charges. Wembi’s sole proposed causal link between the
IDHR charges (the second of which was filed in December 2013) and his termination (nearly
thirteen months later, in January 2015) is the timing, but the Seventh Circuit has repeatedly held
that gaps of that length, or even much shorter, do not alone “create a triable issue on causation.”
Hnin v. TOA USA, 751 F.3d 499, 508 (7th Cir. 2014) (twelve months); see Carlson v. CSX
Transp., Inc., 758 F.3d 819, 828 (7th Cir. 2014) (five months); Kidwell v. Eisenhauer, 679 F.3d
957, 967 (7th Cir. 2012) (five weeks for one incident and two months for another); Milligan v.
Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 390 (7th Cir. 2012) (six months for one incident and
two months for another); Porter, 700 F.3d at 957-58 (eleven months); Argyropoulos v. City of
Alton, 539 F.3d 724, 734 (7th Cir. 2008) (seven weeks); Healy v. City of Chicago, 450 F.3d 732,
741 n.11 (7th Cir. 2006) (more than one year); Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir.
2001) (four or five months).
Nor can Wembi prove retaliation under the indirect method for his IDHR charges,
because to do so he must show, among other things, that “he was treated less favorably than
similarly-situated employees who did not engage in protected activity.” Boss, 816 F.3d at 918.
Wembi has not adduced evidence that any retained employee had not filed an IDHR charge or
otherwise complained about discrimination, so he cannot make a prima facie case. And even if
Wembi had shown that similarly situated employees who did not engage in protected activity had
been retained, his claim still would fail under the indirect method for the same reason it fails
under the direct method: the gap in time between his December 2013 IDHR charge and his
January 2015 termination is too long to allow a jury to infer that Metro’s reason for its
termination (the need for layoffs due to a loss of a major contract) was a pretext for retaliating
against him for the IDHR charge.
25
However, Wembi can forestall summary judgment on his retaliatory termination claim as
it pertains to his filing of Case 14 C 10407. Wembi filed Case 14 C 10407 on December 29,
2014. Metro fired him a week later, on January 5, 2015, allegedly because the December 2014
cancellation of its contract with USPS reduced its revenue and compelled a reduction in its
workforce. Doc. 42 at ¶¶ 11-12; Doc. 42-2 at ¶ 7. Even assuming that the cancellation of the
USPS contract justified the termination of some employees, Metro does not explain how it
decided which employees to terminate. According to an affidavit from Joseph Cruz, who made
the termination decisions, the “only consideration in making these [termination] decisions was to
best serve the needs of [Metro’s] remaining customers.” Id. at ¶ 8. But this provides no
information about why Wembi—an employee who during more than three years at Metro was
never disciplined, suspended, or demoted, and whom Metro concedes was meeting its
expectations—was one of the twenty-four employees who was terminated. In the absence of
such information, a reasonable jury could find that Wembi was terminated for bringing Case 14
C 10407 against Metro.
Metro retorts that “[u]nder most circumstances, suspicious timing alone does not create a
triable issue on causation.” Doc. 41 at 8 (quoting Hnin, 751 F.3d at 508). But “adverse actions
occasionally come so close on the heels of a protected act that an inference of causation is
sensible,” Benuzzi v. Bd. of Educ. of Chi., 647 F.3d 652, 665 (7th Cir. 2011) (internal quotation
marks omitted); see also Milligan, 686 F.3d at 389 (“In egregious cases, suspicious timing alone
might create a triable issue on causation.”), and this is one of those cases. Wembi was
terminated only seven days after filing a federal lawsuit alleging race discrimination. That is
hardly enough time for the “inference of causation [to] weaken[]” due to “time between the
protected expression and the adverse action,” Carlson, 758 F.3d at 828; see also Loudermilk v.
26
Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011) (“The closer two events are, the more likely
the first caused the second.”), particularly in the absence of any other evidence or even a
proffered explanation as to why Wembi in particular (as opposed to other Metro employees) was
fired. The seven-day time period—which included only four business days—between protected
activity and retaliatory action is also far shorter than nearly all of those periods that, as noted
above, the Seventh Circuit has held do not support causal inferences, and more akin to those
which it has, see Loudermilk, 636 F.3d at 314 (one day); Casna v. City of Loves Park, 574 F.3d
420, 423 (7th Cir. 2009) (four “business days”); Mobley v. Allstate Ins. Co., 531 F.3d 539, 549
(7th Cir. 2008) (allowing that “matters occurring within … weeks of each other” could satisfy
the causation element); Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 786-87 (7th Cir.
2007) (protected activity in “late February or early March” and retaliation on March 3); Spiegla
v. Hull, 371 F.3d 928, 943 (7th Cir. 2004) (“just four days (including the weekend) … [that]
came after seven years of uninterrupted postings”); McClendon v. Ind. Sugars, Inc., 108 F.3d
789, 797 (7th Cir. 1997) (collecting cases and noting that “[w]e have found the causal nexus
sufficiently demonstrated when the time period between the filing of a complaint and the adverse
action was … one week”); Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1312, 131415 (7th Cir. 1989) (one week). The January 5, 2015 termination was close enough to the
December 29, 2014 filing to allow a reasonable jury to find that retaliatory animus motivated
Wembi’s termination.
Metro contends that summary judgment must nevertheless be granted on the retaliatory
termination claim because Wembi failed to exhaust his administrative remedies. Doc. 41 at 9.
In so contending, however, Metro fails to acknowledge, let alone distinguish, an exception to the
exhaustion requirement for situations where an employee complains about retaliation for filing a
27
previous discrimination claim. See Smith v. Shinseki, 2013 WL 3466841, at *9-10 (N.D. Ill. July
10, 2013) (collecting cases and explaining the principle). The exception indisputably applies to
situations where an employer allegedly retaliates against an employee for filing an EEOC charge.
See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1030 (7th Cir. 2013) (“[F]or practical
reasons, to avoid futile procedural technicalities and endless loops of
charge/retaliation/charge/retaliation, etc. … a plaintiff who alleges retaliation for having filed a
charge with the EEOC need not file a second EEOC charge to sue for that retaliation.”); Horton
v. Jackson Cnty. Bd. of Cnty. Comm’rs, 343 F.3d 897, 898 (7th Cir. 2003) (“Retaliation for
complaining to the EEOC need not be charged separately from the discrimination that gave rise
to the complaint, at least … if the person discriminated against and the person retaliated against
are the same.”) (citations omitted). The exception also has been held to apply to retaliation for
filing a federal lawsuit following an administrative charge. See McKenzie v. Ill. Dep’t of
Transp., 92 F.3d 473, 482 (7th Cir. 1996) (approvingly citing Kirkland v. Buffalo Board of
Education, 622 F.2d 1066 (2d Cir. 1980), for its holding that an “act of retaliation was ‘directly
related’ to plaintiff’s initiation of litigation and that no second EEOC charge was necessary”);
Muwonge v. Eisenberg, 2008 WL 753898, at *13 & n.8 (E.D. Wis. Mar. 19, 2008) (“[O]ne of the
purposes of the exhaustion rule is to provide the EEOC and the employer an opportunity to settle
the grievance without resort to the courts. However, this case was already pending in federal
court when the plaintiff amended his complaint to include a claim for retaliation. Given that the
claim for retaliation relates to the filing of this suit, it was not possible for such claim to have
been included in the original EEOC charge. The ADA … does not require exhaustion of a claim
for retaliation for filing this suit, which filing occurred subsequent to the filing of the EEOC
charge for disability discrimination.”).
28
The court acknowledges that the Seventh Circuit, despite its favorably citing Kirkland in
McKenzie, has not expressly addressed whether the exception to the exhaustion requirement
applies to retaliation for filing a lawsuit as opposed to an EEOC charge. But Metro, not having
acknowledged the exception, does not explain why it should apply in the latter circumstance but
not the former. Metro’s position on the point accordingly is forfeited for purposes of summary
judgment. See Rahn v. Bd. of Trs. of N. Ill. Univ., 803 F.3d 285, 295 (7th Cir. 2015) (holding
that litigants “waive[] any claim” where “they have failed to cite any legal authority in support of
[their] argument”); Batson v. Live Nation Entm’t, Inc., 746 F.3d 827, 833 (7th Cir. 2014) (“[A]s
the district court found, the musical diversity argument was forfeited because it was perfunctory
and underdeveloped.”); cf. Fluker v. Cnty. of Kankakee, 741 F.3d 787, 792 (7th Cir. 2013)
(“[F]ailure to exhaust administrative remedies does not deprive a court of jurisdiction. A district
court can therefore decide a suit on the merits if a defendant does not raise failure to exhaust as
an affirmative defense, even if the defense could have been asserted.”) (citation and internal
quotation marks omitted). It follows that summary judgment is denied.
Conclusion
For these reasons, Metro’s summary judgment motions are granted in part and denied in
part. The motion is granted as to all claims except for the failure to promote claim in Case 14 C
10407 and the retaliatory termination claim in Case 15 C 464 as it pertains to the filing of Case
14 C 10407. The surviving claims will proceed to trial.
July 18, 2016
United States District Judge
29
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