Wyman v. Evgeros, Inc.

Filing 48

For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants summary judgment in favor of defendant on counts 3 and 4 of plaintiff's complaint but otherwise denies defendant's motion for summary judgment [dkt. n o. 24]. Because plaintiff's counsel of record has been suspended from practice before this district for a 12 month period, the Court needs to advise plaintiff directly of its ruling on the motion for summary judgment. The case is set for a statu s hearing on 2/2/2017 at 9:30 AM, and defendant's counsel is directed to appear. In the interim, defendant's counsel is requested to obtain, as best as it is able, a current address for the plaintiff so that the Court can add it to the docket in this case. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JUDITH WYMAN,

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Plaintiff,
vs.
EVGEROS, INC. d/b/a Olympic
Star Restaurant,
Defendant.

Case No. 15 C 2758

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Judith Wyman has filed suit against her former employer, Evgeros, Inc., which
operates Olympic Star Restaurant. Wyman alleges that Evgeros refused to schedule
her for morning shifts at the restaurant and ultimately terminated her employment, all
due to her age in violation of the Age Discrimination in Employment Act (ADEA) and the
Illinois Human Rights Act (IHRA). Evgeros has moved for summary judgment on all of
Wyman's claims. For the reasons stated below, the Court grants summary judgment in
favor of Evgeros on Wyman's claims based on the restaurant's failure to give her
morning shifts but otherwise denies Evgeros's motion for summary judgment.
Background
Olympic Star Restaurant is located in Tinley Park, Illinois. Around June 2013,
Evgeros acquired Olympic Star. Gerasimos (Gerry) Garbis and Evangelina Garbis
(Eva) are shareholders in Evgeros. Their son, Anstasios (Taso) Garbis, took over
management of the restaurant for a period of time.

Judith Wyman began working as a server at Olympic Star in 1987. She typically
worked the morning shift on Mondays and Wednesdays. During the school year,
Wyman also worked as a crossing guard. In March 2013, Wyman requested and
received time off to undergo surgery and to recover. Wyman's doctor released her to
return to work on October 1, 2013. She approached Olympic Star's management about
how to get back on the shift schedule. Elise, a manager at Olympic Star, told Wyman
that the schedule for the week was already set and instead placed Wyman on on-call
status. No one called off, so Wyman did not work that week. Wyman also filled out an
availability form in order to be put on the schedule in future weeks. Wyman indicated on
the form that she was available to work on Sundays, Mondays, Wednesdays, and
Saturdays from 6:00 am to 2:00 pm.
Elise later called Wyman to inform her that she was scheduled to work Monday,
October 14 starting at 1:00 pm. Evgeros states that Wyman agreed to work this shift.
Wyman says, however, that she told Elise that she could not work during these times
and that she never agreed to come in. Wyman further states that she understood from
Elise's response that she had been removed from the schedule for October 14. Wyman
did not show up for the 1:00 pm shift. Around 2:00 pm, Wyman called Taso to explain
why she was not at the restaurant. Wyman allegedly told Taso that she was unaware
that she was scheduled. Evgeros contends that Wyman told Taso that she was a
"morning girl" and therefore would not work the afternoon shift.
Despite this incident, Wyman was scheduled for two more afternoon shifts, at
1:00 pm on October 21 and 28. Evgeros states that Wyman refused to work both shifts
and did not show up for either. Wyman again indicates that she did not know that

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Olympic Star had scheduled her to work at these times and that she expected the
restaurant to honor her request for morning-shift work. On October 28, Olympic Star
sent Wyman a letter terminating her employment, citing the fact that she failed to
appear for scheduled shifts and refused to work available shifts.
Wyman then filed the present suit against Evgeros. Wyman alleges in count 1
that Evgeros terminated her employment due to her age in violation of the ADEA. In
count 2, Wyman alleges that the same conduct violates the IHRA. Wyman alleges in
count 3 that Evgeros refused to schedule her for her preferred morning shifts due to her
age in violation of the ADEA. In count 4, Wyman alleges that the same conduct violates
the IHRA.
Discussion
Evgeros has moved for summary judgment on all four of Wyman's claims. It
argues primarily that Wyman has failed to state a claim of age discrimination under
either the direct or indirect methods of proof. Further, Evgeros argues that the standard
under the IHRA is identical to that under the ADEA and, because it is entitled to
summary judgment on the claims brought under federal law, it is entitled to summary
judgment on the state law claims as well.
Summary judgment is appropriate when there is no issue of material fact such
that the movant is entitled to judgment as a matter of law. Fleishman v. Cont'l Cas. Co.,
698 F.3d 598, 603 (7th Cir. 2012). Facts are viewed in the light most favorable to the
non-moving party. Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002).
Summary judgment is appropriate when no reasonable jury could find in favor of the
non-moving party. Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657 (7th Cir.

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2012).
I.

Objection to plaintiff's exhibits
Wyman supports her response to Evgeros's motion for summary judgment with a

series of exhibits attached to her Rule 56 statement. See dkt. no. 40. Evgeros has
moved to strike these exhibits on the ground that they were untimely filed. Def.'s Reply
at 1–3. Evgeros further argues that, without these exhibits, Wyman has failed to
provide evidentiary support for her arguments, thus entitling Evgeros to summary
judgment. Id.
Courts have "both the authority to establish deadlines and the discretion to
enforce them." Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006).
Evgeros does not contend that it was unable to present its arguments fully and fairly
due to Wyman's late filing of her Rule 56 statement and accompanying exhibits.
Rather, it says that "[p]laintiff filed the exhibits after Defendant had already completed a
first drafted [sic] its Reply, and now had [sic] been forced to re-draft the majority of the
reply at [the] proverbial [ ] 11th hour." Def.'s Reply at 2. This indicates that Evgeros
actually was able to address the exhibits adequately, even though it was put to extra
work. The Court therefore denies Evgeros's request to strike Wyman's exhibits.
II.

Counts 1 and 2
In count 1, Wyman alleges that Evgeros terminated her employment due to her

age in violation of the ADEA. In count 2, Wyman alleges that the same conduct violates
the IHRA. As Evgeros acknowledges, claims brought under the IHRA are governed by
the same standard as federal discrimination claims. See Def.'s Mem. in Supp. of Mot.
for Summ. J. at 5; Owen v. Dep't of Human Rights, 403 Ill. App. 3d 899, 918, 936

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N.E.2d 623, 639 (2010). The Court therefore considers counts 1 and 2 together for the
purposes of summary judgment.
The ADEA "prohibits employers from firing workers who are 40 or older on the
basis of their age." Martino v. MCI Commc'ns Servs., Inc., 574 F.3d 447, 452 (7th Cir.
2009) (citing 29 U.S.C. § 623(a)(1), 631(a)). The statute requires age to be the
determining factor in the employer's decision to initiate the adverse employment action.
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010). Evgeros first
argues that Wyman cannot establish that age was the "but-for" cause of her termination
because she has stated that she was fired in part because of her age and in part
because Olympic Star's management did not like her. Def.'s Mem. in Supp. of Mot. for
Summ. J. at 6–7. This argument lacks merit. Wyman's subjective opinion on why
Evgeros terminated her employment amounts to inadmissible speculation regarding
someone else's state of mind. Even if, however, Wyman's statement were admissible, it
has minuscule (if any) probative value. Moreover, it would be only one item among all
of the evidence to be considered; it would not by itself establish the absence of a viable
claim. The Court therefore proceeds to examine the other evidence offered by the
parties.
The Seventh Circuit recently eliminated the distinction between direct and
indirect evidence in employment discrimination cases. See Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016). A court is to evaluate all the evidence and
determine whether it would permit a reasonable factfinder to conclude that plaintiff
suffered an adverse employment action due to his or her age. See David v. Bd. of Trs.
of Cmty. Coll. Dist. No. 508, No. 15-2132, 2017 WL 129114, *4 (7th Cir. Jan. 13, 2017).

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The Seventh Circuit has further noted, however, that courts can still apply the
McDonnell Douglas burden-shifting framework to evaluate but-for causation. See
Fleishman, 698 F.3d at 604 (citing Senske v. Sybase, 588 F.3d 501, 506–07 (7th Cir.
2009)). Because Evgeros frames the remainder of its motion in terms of the McDonnell
Douglas framework, the Court applies this standard in evaluating Wyman's claim.
When applying the burden-shifting method, the plaintiff is typically required to
establish a prima facie case of discrimination. Atanus v. Perry, 520 F.3d 662, 672 (7th
Cir. 2008). To do so, the plaintiff must show that (1) she is over the age of 40; (2) her
job performance met the employer's legitimate expectations; (3) she suffered an
adverse employment action; and (4) the employer treated similarly situated younger
employees more favorably. Filar v. Bd. of Educ. of City of Chicago, 526 F.3d 1054,
1060 (7th Cir. 2008). The burden then shifts to the defendant to produce a legitimate,
nondiscriminatory reason for the adverse action. Id. If the defendant does so, the
burden shifts back to the plaintiff to show that the defendant's reason is pretextual. Id.
Where, as here, the plaintiff essentially alleges that the employer is misrepresenting its
legitimate employment expectations in order to terminate her, "the question of whether
[she] was meeting [the defendant's] legitimate expectations merges with the question of
whether [the defendant's] reasons for firing [her] are pretextual." Senske, 588 F.3d at
507.
Evgeros argues both that Wyman was not meeting its legitimate expectations
and that it had a nondiscriminatory reason for firing her, namely that she missed her
shift on October 14 and refused to work two shifts on October 21 and 28. Def.'s Mem.
in Supp. of Mot. for Summ. J. at 7–10. Evgeros points to the employee handbook as

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evidence that Wyman's refusal to work afternoon shifts violated Olympic Star's policies.
The handbook indicates that the restaurant will try to accommodate employee
scheduling requests but makes no guarantees. Def.'s Stat. of Material Facts (SMF), Ex.
10 (Employee Handbook) at 3. The handbook further states that "[s]chedules are
created to meet the work demands of the restaurant" and that "management reserves
the right to adjust working hours and shifts." Id. Finally, the handbook indicates that
employees who do not show up for a shift without first notifying a manager in a timely
manner may face disciplinary action up to and including termination without warning. Id.
Evgeros argues that, because Wyman failed to show up for the October 14 shift and
refused to work the October 21 and 28 shifts, it had a nondiscriminatory reason for
terminating her employment.
In response, Wyman argues that Olympic Star should have honored her request
to work only morning shifts. More importantly, Wyman argues that Evgeros's reasons
for terminating her were pretextual. The Seventh Circuit has indicated that a plaintiff
can demonstrate pretext by showing that the employer's explanations for the adverse
action are unworthy of credence. Senske, 588 F.3d at 507. Wyman points to evidence
that similarly situated younger employees committed similar infractions and were not
terminated. Wyman herself testified that one particular employee under the age of 40
would show up for work drunk and was not fired. Pl.'s Resp. to Def.'s SMF & Stat. of
Additional Material Facts, Ex. 1 (Wyman Dep.) at 106:4–8. Another former employee,
June Miller, testified that younger employees would repeatedly violate the policies in the
employee handbook. Id., Ex. 2 (Miller Dep.) at 44:4–50:14. These employees would
arrive late for shifts, show up to work drunk, sit down with customers, and let their

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tattoos show, all in violation of Olympic Star policies, and allegedly were not fired. See
id. Further, Miller testified that Evgeros permitted younger employees to alter their
schedules at the last minute without repercussions, an allowance that Evgeros did not
make for employees over the age of 40. Id. at 54:5–57:21. Because a reasonable
factfinder could conclude that Evgeros's "legitimate expectations were disparately
applied," Wyman need not demonstrate that she met Evgeros's legitimate expectations.
See Faas v. Sears, Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008). And the
evidence of Evgeros's differential treatment of its employees is sufficient to permit an
inference that Wyman's termination was the result of discriminatory intent.
Further, Wyman has provided additional evidence that her age, and not her
behavior, was likely the motivating factor behind her termination. Shannon Perez,
another former Olympic Star employee, testified that Taso often made negative
comments about elderly people, including that "old people have a smell about them,"
like dead fish. Pl.'s Resp. to Def.'s SMF & Stat. of Additional Material Facts, Ex. 3
(Perez Dep.) at 33:15–16. Perez further testified that Eva indicated she was trying to
create a new Olympic Star by getting rid of the older employees. Id. at 45:7–46–18.
Actions or remarks by a decision maker that reflect a discriminatory attitude are
evidence of discriminatory intent. Lynch v. Belden & Co., 882 F.2d 262, 269 (7th Cir.
1989); see also Futrell v. J.I. Case, 38 F.3d 342, 347 (7th Cir. 1994). Though such
statements alone do not prove discriminatory discharge, they constitute circumstantial
evidence that supports an inference of discrimination. Futrell, 38 F.3d at 347. Thus
when considering the statements by Taso and Eva in conjunction with Evgeros's
differential treatment of its younger employees, Wyman has provided sufficient evidence

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to give rise to a genuine dispute on whether her age was the but-for cause of her
termination. The Court denies summary judgment to Evgeros on counts 1 and 2.
III.

Counts 3 and 4
In counts 3 and 4, Wyman alleges that that Evgeros refused to schedule her for

her preferred morning shifts due to her age in violation of the ADEA and the IHRA. In
their briefs, both parties lump all four counts together and do not provide separate
arguments to distinguish these claims from the claims in counts 1 and 2. Nevertheless,
this Court finds that Wyman has failed to present sufficient evidence from which a
reasonable factfinder could conclude that Evgeros refused to schedule Wyman for
morning shifts due to her age. Wyman has not provided any evidence that Evgeros
granted similar requests by younger employees to be scheduled exclusively for
particular shifts. The employee handbook says that management creates the schedule
in response to restaurant demand and that management reserves the right to adjust
shifts as necessary. Employee Handbook at 2. Evgeros argues that it did not refuse to
schedule Wyman for morning shifts but merely scheduled her based on the restaurant's
need for servers. Because Wyman has not offered any evidence from which a jury
reasonably could find otherwise, she has failed to show the existence of a genuine
factual dispute concerning whether Evgeros's failure to schedule her for morning shifts
was motivated by her age. The Court therefore grants summary judgment to Evgeros
on counts 3 and 4.
Conclusion
For the foregoing reasons, the Court grants summary judgment in favor of
defendant on counts 3 and 4 of plaintiff's complaint but otherwise denies defendant's

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motion [dkt. no. 24].

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: January 27, 2017

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