Dapkus v. Chipotle Mexican Grill, Inc.

Filing 50

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 1/4/2017. Chipotle's Motion for Summary Judgment 29 is denied. Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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ANTHONY DAPKUS
Plaintiff,
v.
CHIPOTLE MEXICAN GRILL, INC.
Defendant.

No. 15 C 6395
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiff Anthony Dapkus brought this suit against his former employer Chipotle
Mexican Grill, Inc. (“Chipotle”) pursuant to 42 U.S.C. § 1981 alleging that Chipotle
discriminated against him on the basis of his race. Dapkus, an African American, alleges that his
rights were violated against because he was subjected to racially discriminatory epithets, was
physically threatened, and was treated less favorably than employees who were not African
American. Chipotle now moves for summary judgment arguing that no reasonable jury could
find that Dapkus was discriminated against in violation of Section 1981. For the following
reasons, Chipotle’s Motion for Summary Judgment [29] is denied.
BACKGROUND
Chipotle, a “fast casual” restaurant chain that specializes in Mexican fare, owns multiple
restaurants in the Chicagoland area, including in Chicago’s South Loop neighborhood (the
“Restaurant”). (Dkt. No. 33 at ¶ 2.) Every Chipotle restaurant is operated by a set of crew
members who prepare and serve food, clean, and maintain the restaurant. (Id. at ¶ 6.) There are
four levels of management that oversee the crew members, comprising of (in ascending order of
1

responsibility) the Kitchen Manager, Service Manager, Apprentice Manager, and General
Manager. (Id. at ¶ 8.) The managers’ responsibilities are split up as follows: the Kitchen
Manager is typically responsible for the inventory and preparation of food; the Service Manager
is in charge of customer service and the dining room; the Apprentice Manager assists the General
Manager; and the General Manager is responsible for the overall operation of the restaurant,
including the hiring and firing of employees. (Id. at ¶¶ 8-12.) Finally, Restaurateurs, who are
above General Managers, are responsible for the field operations of one or more restaurants and
report directly to a Team Leader, who is in turn responsible for multiple restaurants within a
geographic region. (Id. at ¶ 13.)
During Dapkus’s employment at the Restaurant, Joseph Medina was the Kitchen
Manager; Leticia Nava and Andre Velez were the Service Managers; Jesus Gonzalez and then
Katherine Vega were the Apprentice Managers; Cindy Gutierrez was the General Manager;
Patricia Alvarez was the Restauranteur; and Stephanie Vazquez was the Team Leader. (Id.)
A.

Chipotle’s Policies and Procedures1

Chipotle maintains and updates its “Respectful Workplace Policy” which includes an
Equal Employment Opportunity (EEO) policy, Code of Conduct, and Anti-Discrimination,
Harassment and Sexual Harassment policy.

(Id. at ¶ 14.)

Employees are permitted to

anonymously report inappropriate behavior, including discriminatory or harassing behavior, by

1

Chipotle moves to strike several of Dapkus’s responses to its Rule 56.1(a)(3) Statement of Material facts. (See
Dkt. No. 43.) The requirements for responses “are not satisfied by evasive denials that do not fairly meet the
substance of the material facts asserted.” See, e.g., Freight Train Advert., LLC v. Chicago Rail Link, LLC, No. 11 C
2803, 2012 WL 5520400, at *2 (N.D. Ill. Nov. 14, 2012) (quoting Bordelon v. Chicago Sch. Reform Bd. of Trs., 233
F.3d 524, 528 (7th Cir. 2000)). In addition, the Court may strike responses that “fail[] to adequately cite to the
record [or are] filled with irrelevant information, legal arguments, and conjecture.” Cady v. Sheahan, 467 F.3d
1057, 1060 (7th Cir. 2006). Dapkus did not file a substantive response to Chipotle’s motion to strike; rather he
simply stated that he “stands by the record submitted to this Court.” (Dkt. No. 48.) Consequently, the Motion to
Strike [43] is granted in part. Specifically: the objected to portions of ¶¶ 14, 21, and 39 are stricken because they
misconstrue the record; the objected to portions of ¶¶ 15, 20, and 23 are stricken because they are not responsive;
and ¶¶ 16, 17, 22, 24, 26, 31, 32, 34, 35, 39, and 41 are not stricken.

2

submitting a complaint through two separate avenues: the Respectful Workplace Hotline and
Chipotle Confidential. (Id. at ¶ 15.) The Crew Handbook, which Chipotle updated in January
2014, includes requirements that employees are to treat fellow employees and customers with
respect and that discrimination or harassment on the basis of race is prohibited. (Id. at ¶ 16.)
B.

Dapkus’s Employment at Chipotle

Cindy Gutierrez, the General Manager for the Restaurant, hired Dapkus as a crew
member at the location approximately one week prior to its opening on November 6, 2013. (Id.
at ¶¶ 11, 19-20.) Gutierrez was the only Chipotle employee involved in the hiring process. (Id.
at ¶ 11.) Prior to Restaurant’s opening, Dapkus participated in a six-day training and orientation.
(Id. at ¶ 20.) During his orientation, Dapkus watched a video regarding Chipotle’s Respectful
Workplace Policy, received paperwork regarding the Policy, and instructions regarding
restaurant operations, including how to prepare and maintain the food. (See Dkt. No. 34-1 at
102-104.) During Dapkus’s employment, 10 of the 23 employees at the Restaurant were African
American.2

However, no African American employee held a management position at the

Restaurant. (Dkt. No. 33 at ¶¶ 22, 23.)
1.

Use of Harassing Language at the Restaurant

Dapkus alleges that during his employment, words such as “nigger,” “nigga,” and
“gorilla” were used by African American and Latino employees.3 (See id. at ¶ 24; Dkt. No. 43 at
8.) In particular, Velez and Medina used such terms, and other employees, including Walker and
2

Dantrall Swayzer, Brandon Copeland, Jimeese Walker, Essie Lindsay, Tony Simmons, and David Finney were
some of the African American employees who worked with Dapkus at the Restaurant. (Dkt. No. 33 at ¶ 23.)
3
According to the witnesses in the case, there is a meaningful difference between the terms “nigger” and “nigga.”
For example, Walker, an African American employee stated that “nigger” is universally viewed as a racially
discriminatory term while “nigga” is more commonly viewed as a slang term that employees used with one another.
(See, e.g. Dkt. No. 34-3 at 38:9-17 (Walker testifying: “Q. And what are – why is that definition different? A. It
goes to slang. Q. Okay. A. We will in a world of slang or if you want me to say ebonics. And like I said, in today’s
time in ebonics, the slang word nigga means friend. The word nigger, we already know what that means.”).)
Regardless, there is no question that the parties dispute when and which terms were used in the Restaurant. (See,
e.g., Dkt. No. 44 at ¶¶ 45, 46, 59.)

3

Vega, testified that they heard other employees use these terms in the Restaurant. (See Dkt. No.
44 at 1-2; see also, e.g., Dkt. No. 34-2 at 115:17-116:4 (Vega testifying: “Q. You previously
testified that you heard Mr. Medina use the word nigger at the Chipotle South Loop restaurant.
Did you ever hear anyone else use the word nigger other than Mr. Medina? A. Oh, yes, Andre
and Angel for sure, Dantrall. There was another guy, I can’t remember his name, this is the one I
was referring to before, too, but I cannot remember his name for the life of me. And he was
African American if I am not mistaken.”); id. at 116:9-11 (“Q. Did you ever witness any
Hispanic employee refer to an African American employee as a gorilla? A. I believe that was
also Joseph.”); Dkt. No. 34-1 at 284:19-285:2 (Dapkus testifying that Medina told him on at least
ten occasions “Don’t run out of meat today, nigger, not on my clock.”).) Dapkus further testified
that he personally heard Gutierrez, the General Manager, use the terms “nigger” and “nigga,”
though he acknowledges that no other deposed employee testified that they specifically heard
Gutierrez use those terms. (See Dkt. No. 33 at ¶ 33, Response.) However, the parties dispute (1)
whether the terms were used directly towards Dapkus4 or other African Americans, (2) whether
the terms were used in a collegial or racially harassing manner, and (3) whether Dapkus himself
used the words nigga or nigger. (Id.; Dkt. No. 33 at ¶¶ 24, 27, 31, 32; Dkt. No. 44 at ¶ 45.)
Dapkus also testified that he told the managers not to use the term nigger. In particular,
he states that Velez responded by saying “oh, shut up, nigger.” (See Dkt. No. 34-1 at 206:1-12
(“Q. And did you ever tell [Velez] to not use that word?” A. Yes, I told, I told all of them. Well,
not all of them, but I told the managers that it wasn’t cool when they use the word. ‘Oh, shut up,
nigger,’ like just brushed me off. And I also told the manager that came over there from another
4

During his deposition, Dapkus alleged that every manager and some of the crew members, African American and
Latinos alike, harassed him because he was African American. (See Dkt. No. 34-1 at 110.) He specifically testified
that Medina, the Kitchen Manager, would harass him while they were cutting meats: “He would come up to me and
he’d be like, ‘Nigger this’ or ‘Nigger that.’ Like he’d tell me ‘Don’t run out of meat today not on my clock, nigger,’
stuff like that. He would just be saying the slick stuff and using that term.” (Id. at 111:1-13.)

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restaurant, Angel, I told him about the situation. Q. So, which of the managers did you ask not to
use the word? A. I told them all not to use it.”).)
2.

January 8, 2015 Knife Incident

Dapkus also testified that Medina threatened him with a knife behind the grill, located
directly behind the line where the customers are served their food, on January 8, 2015. (See Dkt.
No. 33 at ¶ 25.) According to Dapkus, he and Medina were cutting meat and vegetables and
Medina told him “Don’t run out of meat. Don’t run out of meat today, nigger, not on my watch,”
and then said “Don’t make me use this,” in reference his knife. (See Dkt. No. 34-1 at 179:2-16.)
No one else witnessed this interaction. (Id.) According to the Aloha Shift Details – a record of
employees signing in and out of work – Dapkus and Medina did not work together on that date.
(See Dkt. No. ¶ 26 (“On January 8, 2014, Dapkus worked from 7:20 am until 3:02 pm and
Medina worked from 3:09 pm until 12:30 am.”).) Dapkus disputes the accuracy of the Aloha
records, citing in particular Vega’s statement that “managers will change the times and hours
punched in and out to be in line with the matrix that’s designed by Chipotle. So I mean, this was
produced by Chipotle, but I don’t know if it’s accurate.” (See Dkt. No. 34-2 at 121:12-17.)
Dapkus continued to work with Medina for more than one week before reporting the incident.
(Dkt. No. 33 at ¶ 25.) He testified that he was delayed in reporting the incident because Alvarez
was not at the Restaurant until over a week later. (Dkt. No. 34-1 at 180:14-22.)
3.

Disparity in Employee Treatment

Although the parties generally agree about the staff’s racial makeup, they disagree
regarding whether the Hispanic employees were treated more favorably than the African
American employees. Vega, for example, testified that workers of Latino or Mexican descent
received better shifts, more hours, and more leeway from Gutierrez and Alvarez. (See Dkt. No.

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34-2 at 128:9-13.) On the other hand, Chipotle takes the position that no witnesses specifically
testified to African American employees being treated less favorably than other employees. (See
Dkt. No. 33 at ¶ 29.)
C.

End of Employment

On February 28, 2014, Dapkus quit5 following a verbal altercation with a transgender
customer during which Dapkus told the customer to “go find yourself.” (Id. at ¶ 21; see also
Dkt. No. 34-1 at 141:22-149:15 (Dapkus testifying that he quit after the incident).) Dapkus
acknowledged during his deposition that making such a statement to a transgender person is
demeaning, but testified that he did not know it was demeaning at the time that he made the
statement. (Dkt. No. 34-1 at 149:16-20.) During his termination meeting with Gutierrez and
Velez, Dapkus states that he told Gutierrez “You know what? I already know that you all want
to fire me or want to get rid of me anyway. So just give me my check and I’ll just go.” (Id. at
160:3-9.) Although the parties agree that Dapkus’s last day of work at Chipotle was February
28, 2014, Chipotle’s employment records indicate that his last day of employment was May 8,
2014, and that the reason for the end of his employment was a “voluntary failure to report.” (See
Dkt. No. 44 at ¶ 74.)
STANDARD OF REVIEW
Summary judgment is proper where “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). In evaluating a
motion for summary judgment, the Court’s primary function is not to “evaluate the weight of the
5

Despite unequivocally stating that he quit his job following the altercation, Dapkus alleges that Gutierrez actually
terminated him. (See Dkt. No. 33 at ¶ 22, Response.) However, Gutierrez’s testimony was that Dapkus’s
employment was terminated on that day, not that she personally terminated him. (See Dkt. No. 33-4 (“Q. On the day
that you spoke to Mr. Dapkus when the verbal disagreement occurred with the customer, did you tell him you were
going to have to terminate his employment? A. Yes. Q. Did you ever complete any termination paperwork for Mr.
Dapkus? A. Yes, but it was a period of time later, so that’s the reason he couldn’t have a check there at the
moment.”).)

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evidence or to determine the truth of the matter,” but to determine whether there is a general
issue for trial. See, e.g., U.S. Commodity Futures Trading Comm'n v. New World Holdings,
LLC, No. 10 C 4557, 2012 WL 983790, at *2 (N.D. Ill. Mar. 21, 2012) (quoting Doe v. R.R.
Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994)). “A factual dispute is ‘genuine’ only if
a reasonable jury could find for either party.” Nichols v. Mich. City Plant Planning Dep’t, 755
F.3d 594, 599 (7th Cir. 2014) (internal quotation marks and citation omitted). The party moving
for summary judgment bears the initial burden of production to show that no genuine issue of
material fact exists. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). This burden “may be
discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of
evidence to support the nonmoving party’s case.” Id. (citing Logan v. Commercial Union Ins.
Co., 96 F.3d 971, 978 (7th Cir. 1996)). Upon such a showing, the nonmoving party must “set
forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). These
facts must demonstrate that the genuine issue is material and not simply a factual disagreement
between the parties. Id. (quoting Logan, 96 F.3d at 978). The “nonmovant fails to demonstrate a
genuine issue for trial ‘where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.’” Id.
DISCUSSION
“To survive a summary-judgment motion, an employee alleging racial harassment must
show: (1) he was subject to unwelcome harassment; (2) the harassment was based on his race;
(3) the harassment was severe or pervasive so as to alter the conditions of the employee’s work
environment by creating a hostile or abusive situation; and (4) there is a basis for employer
liability.” Williams v. Waste Mgmt. of Illinois, 361 F.3d 1021, 1029 (7th Cir. 2004); see also,
e.g., Smith v. Farmstand, No. 11-CV-9147, 2016 WL 5912886, at *6 (N.D. Ill. Oct. 11, 2016).

7

Chipotle does not dispute that the alleged harassment was based on Dapkus’s race, but
contends that Dapkus cannot show that he was subject to unwelcome harassment, that the
harassment created a hostile or abusive situation, or that there is a basis for employer liability.
I.

Unwelcome Harassment
Chipotle argues that summary judgment is appropriate because Dapkus cannot show that

the alleged harassment was unwelcome.6 (See Dkt. No. 30 at 3.) “Whether words or conduct
were unwelcome presents a difficult question of proof turning largely on credibility
determinations committed to the factfinder.” Hrobowski v. Worthington Steel Co., 358 F.3d 473,
476 (7th Cir. 2004). However, a plaintiff’s own actions – including whether he or she objected
to the allegedly harassing words or conduct or participated in the conduct – are relevant to
determine whether the alleged harassment was welcome. Id. (affirming district court’s holding
that racial harassment was unwelcome where record indicated that plaintiff protested racist
speech even though the plaintiff used racist language himself); Reed v. Shepard, 939 F.2d 484,
491-2 (7th Cir. 1991) (affirming district court’s granting of summary judgment on sexual
harassment claim where record showed that plaintiff’s own “preferred method of dealing with
co-workers was with sexually explicit jokes, suggestions and offers” and that the plaintiff never
complained about the allegedly harassing conduct).
Chipotle first contends that Dapkus cannot show that the alleged harassment was
unwelcome because he “engaged in behavior similar to that which he now claims was
unwelcome and offensive.” (Dkt. No. 30 at 4.) Specifically, Chipotle argues that Dapkus not
only used the words “nigger” and “nigga,” but also that he “would refer to women as ‘bitches’
and hoes,’ including statements such as ‘oh, that bitch is fine,’ and ‘oh fuck that hoe.’” (Id.) In
6

As an initial point, Chipotle does not address Dapkus’s counterarguments in its Reply. (See Dkt. 45-1.) Although
failure to respond to argument typically results in waiver, see Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir.
2010), the Court nevertheless reviews the issues set forth in the parties’ briefing.

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support of their position, Chipotle cites to testimony from Dapkus himself in which he admits
that he did use the “N word” in “joking” way. (See Dkt. No. 34-1 at 112:3-12 (“Q. Do you use
the ‘N’ word? A. No, ma’am. Q. Have you ever used it? A. Like amongst – like it’s also a
slang word for it but like – and for another race to use it, it would be like degrading towards the
African American community. Yes, like joking I have like, my like, fellow African Americans,
yes, I have used it before.”).) However, Dapkus testified that he never used any of those terms at
work, see id. at 113:15-18, and that neither term (nigger or nigga) could be used in a positive
way. Other coworkers testified that they never heard Dapkus use either term. (See Dkt. No. 343 at 42:18-21 (Walker testifying: “Q. Okay. So when you’re working with Anthony and others,
did he use the ‘N’ word with the ‘a’, did you hear him use that word? A. No.”); Dkt. No. 34-2 at
107:23-108:1 (Vega testifying: “Q. Did you ever hear Tony use the ‘N’ word? A. No, because I
didn’t work that close. I mean, if he said it, I never heard him.”).)
In addition, Chipotle’s inability to point to uncontroverted evidence that Dapkus used the
term “nigger,” and not only “nigga,” is significant given the parties’ agreement that the former
term, regardless of situation, carries an extremely negative connotation because of its history.
See also, e.g., Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984) (“The use of the word
‘nigger’ automatically separates the person addressed from every non-black person; this is
discrimination per se.”). Rather, much of the evidence that Chipotle relies upon is testimony
from other employees that Dapkus used the “N” word. However, the employees are never asked
to specify which term the “N word” refers to, and also consistently stated that “nigga” can be
used in a racially harassing way depending on how it is said and the context of its use. There is
also testimony that indicates that Dapkus reacted negatively to the use of either term, regardless
of whether the term was used in a friendly way. (See, e.g., Dkt. No. 34-3 at 42:22-43:5 (Walker

9

testifying that Dapkus would sometimes make a face when he heard the terms, even if used in a
friendly manner).) Dapkus further testified that he felt uncomfortable and constantly harassed
throughout his employment because of the rampant use of racially derogatory terms. Although
Chipotle cites to testimony from other employees that the terms were never used in a harassing
manner, a jury could credit witness testimony, including Dapkus’s, stating the opposite and find
that the use of such terms (it is undisputed that at least “nigga” was used throughout the
Restaurant) was derogatory. See Hrobowski, 358 F.3d at 476 (“whether words or conduct were
unwelcome presents a difficult question of proof turning largely on credibility determinations
committed to the factfinder.”).
Second, Chipotle argues that Dapkus welcomed the alleged harassment because he
“allowed, without complaint, most of the activity he now characterizes as racial harassment.”
(Dkt. No. 30 at 4-5.) The parties do not dispute that Dapkus complained to Alvarez regarding
Medina’s pointing a knife at him and the use of “nigger” and “nigga” around the restaurant.
Although Chipotle attempts to minimize the significance of Dapkus’s complaints to Alvarez by
noting that Dapkus was not sure that Alvarez understood his complaints because she did not
speak English well, Chipotle fails to point to any authority that the failure of a supervisor to
understand a complaint fully somehow undermines the fact of the complaint itself. Moreover,
Dapkus testified that he also complained to Vega, Angel, and Velez about the use of the term
“nigger” throughout the Restaurant. Such allegations, particularly in light of the disputed record,
are sufficient to indicate a dispute of material fact. Hrobowski proves instructive. In that case,
the Seventh Circuit held that a reasonable jury could find that Hrobowski did not welcome
similar conduct (the use of the word “nigger” in particular) because he complained about racist
language and jokes in the workplace:

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Hrobowski, by contrast, points to competent evidence that he did object to the
type of racist language to which he was subjected. In his deposition testimony,
Hrobowski points out that he complained to managers Mark Stier and Pat Murley
about racial language and jokes in the workplace. Although it is unclear when
Hrobowski made these protests or exactly what he said to Stier and Murley (more
about that later), a reasonable jury could conclude from this evidence that
Hrobowski did not welcome racist speech, at least when he was the victim of that
language.
Id. at 476. A reasonable jury could find that Dapkus’s complaints establish that he did not
welcome the speech. Chipotle’s argument that his testimony is uncorroborated and therefore
should be disregarded is rejected because Dapkus’s statements may create a material dispute
regarding whether he welcomed the speech.7
As such, given the numerous factual disputes in the record, a reasonable jury could find
that Dapkus did not welcome the harassing language.8 As such, summary judgment on this first
ground is inappropriate.
II.

Hostile or Abusive Work Environment
In order to establish the “hostile work environment” element, the plaintiff must submit

evidence showing that he was subjected to conduct “so severe or pervasive as to alter the
conditions of his employment and create an abusive working environment.” Quantock v. Shared
Mktg. Servs., Inc., 312 F.3d 899, 903 (7th Cir. 2002) (citation and quotations omitted). This is a
fact intensive inquiry, see Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993), and the Court
must consider “all the circumstances,” including “the frequency of the discriminatory conduct;
7

See Navejar v. Iyiola, 718 F.3d 692, 697 (7th Cir. 2013) (“[W]e long ago buried—or at least tried to bury—the
misconception that uncorroborated testimony from the non-movant cannot prevent summary judgment because it is
self-serving.”) (citations and internal quotations omitted); Roberts v. Separators, Inc., 172 F.3d 448, 451 (7th Cir.
1999) (holding that plaintiff’s self-serving statements could create a material dispute regarding his performance);
Schlosser v. Culligan Int'l Corp., 23 F.3d 410 (7th Cir. 1994) (same).
8
Even if undisputed evidence supported Chipotle’s claim that Dapkus’s own use of the racially derogatory language
precludes him from surviving summary judgment, Chipotle does not contend that the January 8, 2015 incident
during which Medina threatened Dapkus with a knife was welcome based on Dapkus’s own behavior, undermining
its position. Instead, Chipotle argues that the Court should disregard Dapkus’s allegations because they are based on
only his own, unsubstantiated testimony. However, a jury may not be surprised that no one else heard or saw this
incident based the significant activity in the grill area, and as explained above, a jury could credit Dapkus’s
testimony and find that the incident occurred even without corroboration. See, e.g., Smith, 2016 WL 5912886, at *7.

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its severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance,” through no single
factor is required. Robinson v. Sappington, 351 F.3d 317, 329 (7th Cir. 2003) (quoting Harris,
510 U.S. at 23.) For a plaintiff to prove that he or she was exposed to a severe or pervasive
hostile environment, the plaintiff “must prove that the words or actions to which he was
subjected were both objectively and subjectively hostile.” Id.
A.

Objectively Hostile

Dapkus argues, based on his own testimony and testimony from other employees, that
racially offensive terms, including “nigger,” “nigga,” and “gorilla”, were often used towards him
and at the Restaurant in general. Indeed, as discussed above, Dapkus, Walker, and Medina,
among others, testified that many of the employees used such language, although the parties
dispute whether the use of such language was in a negative or positive way. As “a plaintiff’s
repeated subjection to hearing [the word nigger] could lead a reasonable factfinder to conclude
that a working environment was objectively hostile,” such allegations are sufficient. Hrobowski,
358 F.3d at 477 (further recognizing that “[g]iven American history, we recognize that the word
‘nigger’ can have a highly disturbing impact on the listener.”).
In opposition to this conclusion, Chipotle argues that Dapkus’s allegations are
uncorroborated and are therefore insufficient or otherwise fail to establish harassment “so severe
and pervasive that it alter[ed] the conditions” of his employment.

(Dkt. No. 30 at 6-7.)

Chipotle’s first argument, that Dapkus’s testimony is uncorroborated, is not supported by the
record. For example, Vega specifically testified that she heard at least four other individuals use
the “N” word and heard Velez himself use it multiple times. Additionally, she reprimanded
other employees about their use of the “N” word. (See Dkt. No. 34-2 at 132:11-17 (“Q. All right.

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When you were reprimanding Angel, Dantrall, and Brandon about the use of the ‘N’ word, what
did you say to them? A. I told them that they could not be talking in that way in -- you know,
when they’re working in the back of the house, other people could hear, you know, they
shouldn’t use that language.”).) Based upon that testimony, in addition to Dapkus and Walker’s
testimony detailed above, a reasonable jury certainly could find Dapkus’s allegations both true
and reliable. Furthermore, the fact that Vega testified that she reprimanded other employees for
the use of the terms and that Dapkus testified that he complained to various managers
undermines Chipotle’s argument that no employee testified that the words were used in an
offensive manner. In addition, Chipotle’s recurring argument that summary judgment is proper
because Dapkus’s testimony is uncorroborated is incorrect because a jury could credit Dapkus’s
testimony and find in his favor. See, e.g., Smith, 2016 WL 5912886, at *7.
Turning to Chipotle’s second contention, as an initial point, Dapkus need not establish
that the harassment was both so severe and pervasive; rather, “one or the other will do.”
Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000). Nevertheless, the crux of
Chipotle’s argument is that summary judgment is appropriate because Dapkus cannot establish
that the allegedly harassing conduct unreasonably interfered with his work performance. (See,
e.g., Dkt. No. 45 at 4 (Chipotle arguing that “[t]o survive summary judgment, Plaintiff must
demonstrate that the conduct unreasonably interfered with his work performance.”) (emphasis
added).) However, whether the conduct interfered with Dapkus’s work performance is just one
of the factors to be considered and is not required. See Harris, 510 U.S. at 23 (holding that
whether the work environment was hostile or abusive can be determined by looking at all
circumstances, which “may include…whether it unreasonably interfered with an employee’s
work environment.”). Rather, when viewing all of the factors and circumstances, a jury could

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determine that the harassment was severe or pervasive because (1) the use of racially derogatory
terms was common and more than a mere utterance, (2) Dapkus complained to managers to no
avail, and (3) Dapkus felt physically threatened and humiliated because of the conduct and words
of the other employees. See Robinson, 351 F.3d at 329 (setting out factors); see also Lambert v.
Peri Formworks Sys., Inc., 723 F.3d 863, 869 (7th Cir. 2013) (holding that the plaintiff met the
requirement where the record reflected that coworkers “referred to workers on multiple occasions
by names that a trier of fact could see as racial slurs.”) (emphasis in original).
B.

Subjectively Hostile

In determining whether a workplace was subjectively hostile, a court must “inquire into
whether the plaintiff perceived her environment to be hostile or abusive.” Haugerud v. Amery
Sch. Dist., 259 F.3d 678, 695 (7th Cir. 2001); see also Hrobowski, 358 F.3d at 477 (“As to the
subjective component of our inquiry, all that Hrobowski has to establish is that he perceived the
environment to be hostile or abusive.”). Chipotle does not appear to challenge that Dapkus
meets the requisite standard and the analysis on this issue is straight-forward. As discussed
above, Dapkus has asserted and a jury could find that the words that Dapkus heard and the
conduct that he was subjected to were unwelcome. Dapkus also alleges that he felt threatened
and humiliated. As such, there is an issue of material fact regarding subjective hostility.
Accordingly, Chipotle’s motion for summary judgment as to this prong is rejected.
III.

Employer Liability
Chipotle also contends that summary judgment is appropriate because Dapkus cannot

establish employer liability. “The standard for employer liability hinges on whether the harasser
was the plaintiff’s supervisor. Harassment by a supervisor of the plaintiff triggers strict liability,
subject to the possibility of an affirmative defense where the plaintiff suffered no tangible

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employment action.

Conversely, the employer may be found liable for a hostile work

environment created by an employee who was not the plaintiff’s supervisor only where the
plaintiff proves that the employer has ‘been negligent either in discovering or remedying the
harassment.’” Hrobowski, 358 F.3d at 477 (quoting Parkins v. Civil Constructors of Illinois,
Inc., 163 F.3d 1027, 1032 (7th Cir. 1998)).
A.

Supervisor Harassment

“‘Supervisor’ is a legal term of art for Title VII purposes, and an employee merely having
authority to oversee aspects of another employee’s job performance does not qualify as a
supervisor in the Title VII context.”9 See, e.g., Park v. Pulsarlube USA, Inc., No. 14 C 4242,
2016 WL 3551652, at *5 (N.D. Ill. June 30, 2016) (quoting Rhodes v. Illinois Dep’t of Transp.,
359 F.3d 498, 506 (7th Cir. 2004) overruled on other grounds by Ortiz v. Werner Enterprises,
Inc., 834 F.3d 760 (7th Cir. 2016)). “[A] supervisor means someone who has the power to hire,
fire, demote, promote, transfer, or discipline an employee.” See, e.g., Park, 2016 WL 3551652,
at *5 (citations and quotations omitted).
Here, Chipotle can only be held liable under the supervisor standard if Dapkus shows that
Gutierrez – the only manager that was responsible for all hiring and firing decisions, see Dkt.
No. 33 at ¶ 12 – was his harasser. Hrobowski, 358 F.3d 478. Here, Dapkus does, in addition to
alleging that Gutierrez subjected him and other African American crew members to less
favorable treatment, state that he personally heard Gutierrez use the terms “nigger” and “nigga”
during his employment. Although the parties dispute if and how many times Gutierrez used such
terms, such allegations are sufficient to create a dispute of material fact because Gutierrez’s use

9

Section 1981 claims are analyzed in the same manner as claims brought pursuant to Title VII of the Civil Rights
Act. Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010); see also Sublett v. John Wiley & Sons,
Inc., 463 F.3d 731, 736 (7th Cir.2006) (retaliation claims under Section 1981 and Title VII are subject to the same
methods of proof and analysis).

15

of the terms, even if not directed at Dapkus, could establish employer liability on the basis of
supervisor conduct. Cf. Hrobowski, 358 F.3d at 478 (declining to find supervisor liability where,
unlike here, the plaintiff failed to point to evidence that a “person with the power to influence the
terms and conditions of his employment made such remarks.”) (emphasis in original).
Moreover, Gutierrez’s use of the terms could have influenced the way other employees acted
towards Dapkus; specifically, if and how often the other employees used such terms around or
with reference to Dapkus. Accordingly, because Dapkus has at least circumstantial evidence that
Gutierrez, as his supervisor, used racially derogatory terms, summary judgment is inappropriate.
B.

Employee Harassment

Dapkus may also establish employer liability by showing that Chipotle was negligent in
either discovering or remedying harassment by an employee. Hrobowski, 358 F.3d at 478.
Chipotle “will not be liable for the hostile environment absent proof that it failed to take
appropriate remedial measures once apprised of the harassment.” Hostetler, 218 F.3d at 809.
An employer is generally not considered to be apprised of the harassment “unless the employee
makes a concerted effort to inform the employer that a problem exists,” Silk v. City of Chicago,
194 F.3d 788, 807 (7th Cir. 1999), though an employer “could be charged with constructive
notice where the harassment was sufficiently obvious.” Hrobowski, 358 F.3d at 478 (citing
Mason v. S. Illinois Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir. 2000)). Alternatively,
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.’” Lambert,
723 F.3d at 866-67 (quoting Parkins, 163 F.3d at 1037).

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Here, Dapkus contends that he both apprised Chipotle of the harassment and that the
harassment was so obvious that Chipotle should have had constructive notice of it. With regard
to his first argument, it is undisputed that Dapkus did not use either of Chipotle’s anonymous
hotlines – Respectful Workplace Hotline or Chipotle Confidential – for submitting complaints.
However, and despite Chipotle’s argument to the contrary, failure to use an established reporting
mechanism is not fatal; rather, the analysis then depends on whether the employer received
notice through the plaintiff’s complaints to his superiors.

See Parkins, 163 F.3d at 1037

(“Because Parkins apparently delayed using the only mechanism for complaint that indisputably
existed (filing a grievance with the Teamsters Union), we must determine whether she reported
the alleged harassment to anyone who had the authority to deal with the harassment or at least
“to someone who could reasonably be expected to refer the complaint up the ladder to the
employee authorized to act on it.”).
Dapkus argues that his numerous complaints to the managerial staff regarding the
constant use of the terms “nigger” and “nigga” throughout his employment were sufficient to put
Chipotle on notice of the harassment. (See Dkt. No. 34-1 at 206:1-12.) He specifically testified
that he complained to Velez and the other managers to stop using the terms and was told “oh,
shut up nigger.” (Id.) Moreover, the parties do not dispute that Dapkus complained to Alvarez
regarding Medina pointing a knife at him and the use of “nigger” and “nigga” around the
restaurant.10 Although the parties dispute how often Dapkus lodged his complaints, based on the
disputed record, a fact finder could find that Dapkus’s multiple complaints to the managerial
staff were sufficient to put Chipotle on notice of the alleged harassment. Given that the parties

10

Chipotle again attempts to argue that Dapkus’s complaints to Alvarez should be discounted or somehow construed
as evidence that he did not adequately raise the issue because he was not sure that she understood English. (See Dkt.
No. 45 at 6.) However, as discussed above, because Chipotle fails to provide any authority in support of this
contention, it is rejected.

17

do not dispute whether Chipotle took any remedial action (despite the fact that Dapkus expressly
alleges that Chipotle did not, see Dkt. No. 36 at 13), Dapkus meets the standard for employee
liability.
In opposition, Chipotle, citing Hrobowski, argues that Dapkus’s allegations were too
vague to put it on notice of his racial harassment claims. (See Dkt. No. 30 at 13-14.) However,
Chipotle’s reliance on Hrobowski is misplaced. In that case, the Seventh Circuit affirmed the
district court’s grant of summary judgment in similar factual circumstances because the plaintiff
did “not tell the district court the substance of his reports.” Id., 58 F.3d at 479 (holding: “We
therefore agree with the district court’s conclusion that Hrobowski ‘failed to direct [the district
court’s] attention to any facts which would show that Defendants were negligent in discovering
or addressing racial harassment in the workplace.’”). Unlike in Hrobowski, however, Dapkus’s
complaints were clearly related to racial harassment. Moreover, a reasonable jury could find,
depending on how it weighed the evidence and witness testimony, that Dapkus requested that the
managers stop using “nigga” and “nigger” and admonish the other employees to do the same.
Cf. Montgomery, 626 F.3d at 392 (finding that defendant could not be found to have knowledge
where “Montgomery complained of general unfairness in task assignments and of employee
delinquency, but these complaints did not provide notice of any racial harassment concerns.”).
As such, because Dapkus’s complaints specifically related to racial harassment (both in words
and through conduct), Chipotle’s argument that his complaints were too vague is rejected.

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NCLUSION
N
CON
For the reason stated abo Chipotle’s Motion f Summary Judgment [29] is denie
ns
ove,
for
y
ed.

__________
__________
___________
__________
___
Virginia M. Kendall
.
United State District C
es
Court Judge
Northern D istrict of Illi
inois
Date: 1/4
4/2017

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