Harden v. COMCAST

Filing 86

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 12/18/2018: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants summary judgment in favor of defendant on count five of plaintiff' s complaint but otherwise denies defendant's motion for summary judgment [dkt. no. 63]. The case is set for a status hearing on December 21, 2018 at 9:15 a.m. for the purpose of setting a trial date and discussing the possibility of settlement. (mk)

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

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Plaintiff,
vs.
COMCAST,
Defendant.

Case No. 16 C 1931

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The plaintiff in this case, Taniesheia Harden, was fired from her job as a
supervisor at a Comcast customer service call center in June 2015. She is an AfricanAmerican woman over the age of forty with diagnosed psychiatric conditions including
PTSD and depression, and she has sued Comcast, alleging that her termination was
unlawfully motivated by her race, age, and / or disability. She also alleges unlawful
retaliation and a violation of the Illinois Personnel Records Review Act. Comcast has
moved for summary judgment.
Background
Harden began working for Comcast in 2000. Most recently, she was a
supervisor at Comcast's call center in Tinley Park, Illinois, where she was responsible
for reviewing billing-related customer-service complaints.
In the summer of 2014, Harden took a medical leave of absence from her job.
She testified that she informed her direct supervisor, Robert Signore, that her absence

was caused by her mental health symptoms stemming from post-traumatic stress
disorder (PTSD) and depression. While she was away, an interim supervisor named
Regina Coleman temporarily took over her responsibilities.
Just after she returned in October, Comcast conducted an audit purportedly to
determine whether supervisors were handling complaints in a timely manner. Under
Comcast's policies, if the agent who fields a complaint cannot resolve it, he or she
creates an "escalation resolution ticket" that the supervisor must handle within a fixed
amount of time. Relying on the audit data, Comcast gave a final written warning to any
supervisor who complied with the ticketing procedures less than 65% of the time.
In January 2015, Harden received a final written warning because the audit
showed only 56% compliance. Harden testified that at that point one of her superiors,
Andre Brown, gave her the tickets on which she was audited. She recalled that there
were about seventy or eighty such tickets, and that when she reviewed them she found
that twenty-seven of them had in fact been handled by Signore or Coleman. Harden
also testified that the audit period began during her leave of absence and included time
after her return to work when she was unable to access the company's systems to
process tickets. She sent an e-mail detailing these objections to the audit procedure to
her superiors, including Andre Brown and Hilda Toscano, but she contends that
Comcast took no actions to address these perceived errors.
Harden testified that in February she complained to a human resources
employee that she had been discriminated against on the basis of her age, race, and
disability. She also testified that she repeated those same complaints to her superiors
in May.

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In June 2015, Harden was placed on administrative leave for allegedly sending
confidential information to an employee via e-mail two months earlier. During her
administrative leave, Comcast conducted a second audit of the supervisors. The audit
results indicated that Harden again failed to meet the 65% threshold, and she was
terminated.
Harden filed this suit, contending that her firing was unlawfully motivated by her
race in violation of Title VII, her disability in violation of the Americans with Disabilities
Act (ADA), and her age in violation of the Age Discrimination in Employment Act
(ADEA). She also alleges that Comcast retaliated against her after she complained of
discrimination in May 2015 and violated the Illinois Personnel Record Review Act
(IPRRA) by failing to disclose documents she requested from her personnel file.
Comcast has moved for summary judgment. For the reasons stated below, the Court
grants summary judgment in Comcast's favor on the IPRRA claim but otherwise denies
Comcast's motion.
Discussion
To obtain summary judgment, the moving party must show that there is no
genuine dispute regarding any material fact and that it is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); Simpkins v. DuPage Hous. Auth., 893 F.3d 962,
964 (7th Cir. 2018). A genuine dispute of material fact exists if "the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Dunn v. Menard,
Inc., 880 F.3d 889, 905 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). The court must consider the evidence in the light most favorable
to the nonmoving party and draw all reasonable inferences in that party's favor. Id.

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In considering whether the evidence is sufficient for the plaintiff to withstand
summary judgment in an employment-discrimination case, courts in the Seventh Circuit
no longer distinguish between "direct" and "indirect" evidence of discrimination. See
Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). Instead, the court
considers all relevant evidence "as a whole" to determine if it "would permit a
reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other
proscribed factor caused the discharge or other adverse employment action." Id.
A.

Disability discrimination
A plaintiff alleging disability discrimination in employment must show that she is

disabled, she is otherwise qualified to perform the essential functions of the job, and her
disability caused an adverse employment action. Monroe v. Ind. Dep't of Transp., 871
F.3d 495, 503 (7th Cir. 2017).
1.

Disability status

Comcast argues that it is entitled to summary judgment on Harden's ADA claim
because Harden is not disabled within the meaning of 42 U.S.C. § 12112(a). The
ADA's definition of disability encompasses a "physical or mental impairment that
substantially limits one or more major life activities" of an individual. Id. § 12102(1)(A).
A reasonable jury could conclude that Harden is disabled. She cites medical
records showing that she has been diagnosed with PTSD and depression. The records
also reflect mental health symptoms that interfere with her ability to work, concentrate,
communicate, and sleep, all of which are major life activities under the ADA. See id. §
12102(2)(A). These observations by her treating physician are consistent with her 2014
leave of absence, during which Harden contends she was unable to work because of

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the severity of her symptoms.
Comcast argues that no reasonable jury could find that Harden is disabled
because she testified that she was able to perform all the functions of her job without
disability accommodations and because she drove herself to her deposition in this case.
But the fact that Harden could come back to work or perform other tasks after she
began receiving appropriate medical treatment does not undermine her claim of
disability. See 42 U.S.C. § 12102(4)(E)(i) ("ameliorative effects of mitigating measures"
including medication do not affect the disability determination); Gogos v. AMS Mech.
Sys., Inc., 737 F.3d 1170, 1173 (7th Cir. 2013). In addition, Harden testified that she
asked her physician not to document her requests for disability accommodations so that
she could raise those issues with her superiors independently. This testimony, if
believed, would permit a reasonable jury to conclude that Harden was disabled
notwithstanding the lack of documented work restrictions in her later medical records.
2.

Qualification

Qualification is determined by a two-step test: the individual must (1) satisfy any
educational or occupational prerequisites for the position and (2) be able to perform the
essential functions of the job. Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001).
Comcast does not dispute that Harden possessed the required qualifications but argues
at step two that the audit results showed that she was unqualified.
Harden has pointed to sufficient evidence to permit a reasonable jury to conclude
that she was qualified for her job. First, she introduced evidence that casts doubt on the
validity and fairness of the audits. She testified that she was audited on twenty-seven
tickets that other supervisors completed during and after her leave of absence—that is,

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tickets for which she was not responsible. She also testified that her superiors took no
corrective action after she pointed out this apparent mistake. In addition, a jury could
credit Harden's testimony that her superiors audited more tickets than they
acknowledged in the audit summary; although Harden testified that she was handed a
stack of seventy or eighty tickets, the audit summary states that only forty-two were
reviewed. This testimony, if believed, would allow a reasonable factfinder to reject the
legitimacy of the audits as both a metric of her qualifications and a genuine reason for
her termination.
Second, Harden has introduced evidence that, notwithstanding the audit results,
she satisfied the prerequisites for her job and could perform essential job functions.
She testified that she was able to perform her job responsibilities "100%." Harden Dep.,
dkt. no. 85, at 101:3-14. She also points to her favorable 2014 performance evaluation
and the absence of any previous disciplinary actions. Taken together with the evidence
that the first audit was flawed or unreliable, this evidence is sufficient to create a
genuine factual dispute regarding Harden's qualifications.
3.

Causation

Comcast next argues that Harden cannot point to sufficient evidence that she
was terminated because of her disability. In particular, it emphasizes the two failed
audits and contends that no reasonable jury could conclude that her mental health
issues—rather than the audit results—motivated her termination. A plaintiff may show
that discrimination caused her termination with evidence of
(1) suspicious timing; (2) ambiguous statements or behavior towards other
employees in the protected group; (3) evidence, statistical or otherwise,
that similarly situated employees outside of the protected group
systematically receive better treatment; and (4) evidence that the
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employer offered a pretextual reason for an adverse employment action.
Monroe, 871 F.3d at 504.
The evidence that the audit was conducted unfairly or arbitrarily is relevant to the
question of causation because it would permit a reasonable jury to conclude that
Comcast's stated reason for Harden's firing was pretextual or phony and that the
decision was actually motivated by discriminatory animus. See Baines v. Walgreen Co.,
863 F.3d 656, 665 (7th Cir. 2017). And the timing of the audit permits a reasonable
inference that the peculiarities of the first audit were a direct response to her disabilityrelated leave of absence. Harden testified that the audit period began before she even
returned from her leave, just a few months after she informed her superiors about her
mental illness. Harden also testified that she was audited on tickets that were
completed by the interim supervisors who handled her responsibilities during her
medical leave. This timing, though not conclusive proof of discriminatory motive,
provides context for the allegedly unfair or arbitrary procedures used during the first
audit and supports a reasonable inference that Comcast's real motivation for firing
Harden was her disability.
Considering the evidence as a whole, the Court concludes that a reasonable jury
could find that Harden was disabled, qualified for her job, and fired because of her
disability. The Court therefore denies Comcast's motion for summary judgment with
respect to count three of the amended complaint.
B.

Age discrimination
Harden's age-discrimination claim can withstand summary judgment if there is a

triable issue of fact regarding whether age discrimination motivated her termination.
See Nagle v. Village of Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009).
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As with the disability-discrimination claim, the evidence of flaws in the audit
procedure also supports Harden's claim of age discrimination under the ADEA because
it suggests that Comcast lied about its stated reason for termination. Harden points to
additional evidence that would permit a jury to conclude that her firing was motivated by
her age. She testified during her deposition that one of her direct superiors, Hilda
Toscano, remarked in April 2015 that Harden "fail[ed] to understand simple changes in
the business" because she was "an older employee." Harden Dep., dkt. no. 85, at
316:11-24. If a jury believes that Harden's direct supervisor made this comment just
two months before Harden was fired, it could rely on this as evidence of age-based
animus that supports Harden's claim of age discrimination. See Adams v. Ameritech
Servs., Inc., 231 F.3d 414, 428 (7th Cir. 2000) (cautioning courts "not to dismiss as
irrelevant damaging remarks" that suggest a discriminatory motive).
Although this statement standing alone might not suffice to create a genuine
issue material fact because it was not made in reference to her firing, see Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 2007), overruled on other grounds by
Ortiz, 834 F.3d at 765, at the summary judgment stage the Court must consider the
evidence as a whole, Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 725 (7th Cir. 2018).
Considering Toscano's comment against the backdrop of the rest of the evidence,
including the allegedly flawed audit process, the Court concludes that Harden has
pointed to sufficient evidence to withstand summary judgment on her age-discrimination
claim.
C.

Race discrimination
Harden's evidence regarding the audit procedure is also relevant to her race-

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discrimination claim because it would allow a reasonable jury to find that the stated
reason for her termination is pretextual and false. Although this claim presents a closer
question than the claims of age and disability discrimination because it is not supported
by additional circumstantial evidence that race in particular motivated her firing, the
claim may nonetheless withstand summary judgment because "the trier of fact can
reasonably infer from the falsity of the explanation that the employer is dissembling to
cover up a discriminatory purpose." Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147 (2000); see also Baines, 863 F.3d at 665. The Court therefore concludes
that Harden has presented sufficient evidence to withstand summary judgment on count
three.
D.

Retaliation
In count four of the amended complaint, Harden alleges that she was fired in

retaliation for complaining to her supervisors about race, age, and disability
discrimination. A plaintiff alleging unlawful retaliation under Title VII, the ADEA, or the
ADA must show that "(1) he engaged in protected activity, (2) he suffered an adverse
employment action, and (3) there was a causal connection between the two." Poullard
v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016) (Title VII); see also Rowlands v. UPS –
Fort Wayne, 901 F.3d 792, 801 (7th Cir. 2018) (ADA); Smith v. Lafayette Bank & Trust
Co., 674 F.3d 655, 657 (7th Cir. 2012) (ADEA).
The parties do not dispute that Harden engaged in protected activity by
complaining to her superiors specifically about the alleged discrimination. See Frakes
v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 551 (7th Cir. 2017) (ADA); Skiba, 884 F.3d
at 718 (Title VII and ADEA). Instead, the parties disagree about whether there is

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evidence of causation. In cases of discharge, the plaintiff must point to evidence that
"retaliation was the 'but for' reason for her termination." Rowlands, 901 F.3d at 801.
Circumstantial evidence of retaliation can include suspicious timing, differential
treatment of similarly situated employees outside the protected class, and evidence that
the employer's proffered reason for the adverse employment action was pretextual.
Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012). Though suspicious timing
alone is usually insufficient to demonstrate causation, it is sometimes probative. Id.
In this case, the circumstances of Harden's firing are sufficiently suspicious to
permit a jury to infer that retaliation was the reason for her termination. Notably, she
was placed on administrative leave in June for an e-mail she sent two months earlier in
April, one month after she complained about discrimination to her superiors in May.
Comcast attempts to characterize this delay as innocent, alleging that Harden's
superiors were not aware of the e-mail until June. A jury could reasonably disbelieve
that explanation, however, because one of Harden's superiors received the original email.
Harden also argues that the circumstances surrounding her administrative leave
suggest a retaliatory motive. First, she was placed on administrative leave pending
further investigation for sending the April 2015 email even though, as one of her
superiors testified, that infraction was not serious enough to warrant termination. As
Harden argues, a jury could reasonably disbelieve this explanation because it is unclear
what "investigation" Comcast needed to undertake given that the totality of her alleged
wrongdoing consisted of sending a single e-mail that Comcast already had in its
possession. Harden also points to the timing of the second audit, which was conducted

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just a few days after she was placed on leave. This sequence of events supports a
reasonable inference that Comcast was searching for a justification to terminate
Harden, and that its stated reasons masked an ulterior, retaliatory motive.
Because Harden has pointed to sufficient evidence to permit a reasonable jury to
conclude that Comcast retaliated against her for complaining about age, race, or
disability discrimination, the Court denies summary judgment with respect to count four.
E.

Personnel Record Review Act
In count five of Harden's amended complaint, she alleges that Comcast failed to

produce documents from her personnel file in violation of the Illinois Personnel Record
Review Act, 820 ILCS 40/2. Comcast argues that it is entitled to summary judgment on
this claim because the Court lacks supplemental jurisdiction over the alleged nondisclosure. It also argues that the requested records were exempt from the IPRRA
under 820 ILCS 40/10(f), which exempts records "relevant to any other pending claim
between the employer and employee which may be discovered in a judicial proceeding."
Finally, Comcast contends that Harden has not been harmed by any non-disclosure
because she eventually received all the documents she requested.
Comcast's jurisdictional argument is without merit. A court may exercise
supplemental jurisdiction "over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy . . . ."
28 U.S.C. § 1367(a). This requirement is satisfied "when the supplemental claim
involves the same parties, contracts, and course of action as the claim conferring
federal jurisdiction." Prolite Building Supply, LLC v. MW Mfrs., Inc., 891 F.3d 256, 258
(7th Cir. 2018). Harden's PRRA claim satisfies these requirements because it concerns

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Comcast's alleged non-disclosure of records that were used in her termination, and
Harden alleges that Comcast deliberately concealed those records because its stated
reasons for firing her were pretextual. This factual nexus satisfies the jurisdictional
requirement of section 1367(a).
Comcast is entitled to summary judgment on this claim, however, because
Harden failed to respond to Comcast's arguments that the IPPRA claim is not
cognizable under 820 ILCS 40/10(f) and that she has not been harmed by the alleged
non-disclosure. These omissions from the reply brief forfeit any counterarguments, and
Comcast is therefore entitled to summary judgment on count five. See Ennin v. CNH
Indus. Amer., LLC, 878 F.3d 590, 596 (7th Cir. 2017).
Conclusion
For the foregoing reasons, the Court grants summary judgment in favor of
defendant on count five of plaintiff's complaint but otherwise denies defendant's motion
for summary judgment [dkt. no. 63]. The case is set for a status hearing on December
21, 2018 at 9:15 a.m. for the purpose of setting a trial date and discussing the possibility
of settlement.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: December 18, 2018

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