Cervantes v. Ardagh Group

Filing 58

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 11/14/2017: Defendant's motion for summary judgment 29 is granted, and judgment will be entered in favor of defendant and against plaintiff. Defendant's motio n to strike plaintiff's response to defendant's statement of undisputed facts and plaintiff's counter-statement of undisputed facts 42 is denied as moot. Plaintiff's motion to extend time to depose expert witnesses 47 is denied as moot. Plaintiff's motion to strike defendant's statement of undisputed material facts and exhibits 53 is denied as moot. Civil case terminated. [For further details see Memorandum Opinion and Order]. Mailed notice(is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUAN CERVANTES,
Plaintiff,
v.
ARDAGH GROUP,
Defendant.

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No. 16 C 11080
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
Plaintiff, Juan Cervantes, brought this action against Ardagh Group (“Ardagh”) for
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Illinois
Human Rights Act (“IHRA”), 775 ILCS 5/1-101 et seq., (Counts I through IV), as well as for
intentional infliction of emotional distress (“IIED”) in violation of Illinois common law (Count
V). For the reasons explained below, defendant’s motion for summary judgment is granted;
defendant’s motion to strike plaintiff’s response to defendant’s statement of undisputed facts and
plaintiff’s counter-statement of undisputed facts is denied as moot; plaintiff’s motion to strike
defendant’s statement of undisputed material facts and exhibits is denied as moot; and plaintiff’s
motion to extend time to depose expert witnesses is denied as moot.
BACKGROUND
On September 3, 2015, plaintiff filed with the Illinois Department of Human Rights
(“IDHR”) a Charge of Discrimination (“Charge”) against his employer, Ardagh. (ECF No. 32,
Def.’s App., Ex. A.) In the section of the Charge form that contains boxes to check for the type
of discrimination alleged, plaintiff checked the box for “Retaliation.” (Id.) He did not check any
other boxes, among which were “Race” and “National Origin.” In the “particulars” section of

the form, plaintiff stated: “I began my employment with [Ardagh] in or around May 1991. My
current position is Forklift Driver. A family member filed EEOC Charge No. 210-1998-00397
against [Ardagh]. During my employment, I have been subjected to discipline, harassment, and
I have been demoted. I believe I have been discriminated against in retaliation, in violation of
Title VII of the Civil Rights Act of 1964, as amended.” (Id.) After conducting an investigation,
the IDHR dismissed the Charge on July 13, 2016 for lack of substantial evidence. (Def.’s App.,
Ex. B.)
On December 5, 2016, plaintiff filed this action. He alleges that Ardagh violated Title
VII and the IHRA by refusing to promote him, demoting him, and issuing him performance
warnings, based on his race and national origin and in retaliation for having previously
complained to his superiors about discrimination and harassment. Plaintiff’s IIED claim is based
on the same alleged conduct.
DISCUSSION
A.

The Parties’ Motions to Strike
1.

Local Rule 56.1

Local Rule 56.1 requires the party moving for summary judgment to submit “a statement
of material facts as to which the moving party contends there is no genuine issue and that entitle
the moving party to a judgment as a matter of law, . . . consist[ing] 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.” N.D. Ill. L.R. 56.1(a)(3). The Rule also requires the party opposing the motion to
file a concise response to each fact asserted in the movant’s statement and a statement of any
additional facts that require the denial of summary judgment, both including the same specific
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references to supporting materials upon which the opposing party relies. L.R. 56.1(b)(3). “[T]he
purpose of Rule 56.1 statements is to identify the relevant admissible evidence supporting the
material facts—not to make factual or legal arguments.” LaSalvia v. City of Evanston, 806 F.
Supp. 2d 1043, 1046 (N.D. Ill. 2011) (citing Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir.
2006)).
2.

Defendant’s Motion

Defendant moves to strike plaintiff’s response to defendant’s Local Rule 56.1(a)(3)
statement as well as plaintiff’s Local Rule 56.1(b)(3)(C) statement of additional facts.
Defendant contends that plaintiff’s filings are improper for a number of reasons, including
because they fail to state which parts of certain statements are disputed; include impermissible
legal argument; exceed the limit in the Local Rule for numbered paragraphs (which is forty for
parties opposing summary judgment motions); cite to evidence that does not support the
disputes; and fail to cite evidence. In response, plaintiff argues that defendant is “play[ing]
games” and relying on “technicalities.” (ECF No. 54, Pl.’s Resp. Def.’s Mot. Strike at 1.) The
requirements of Local Rule 56.1, however, are not “technicalities”; the Court of Appeals has
“repeatedly held that a district court is entitled to expect strict compliance” with the Rule.
Cichon v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir. 2005); Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 924 (7th Cir. 1994).
Along with his response, plaintiff has “supplie[d] a revised Counter-Statement of Facts,”
which he says addresses defendant’s “concerns about citations to the record and legal
arguments.” (Pl.’s Resp. Def.’s Mot. Strike at 5.) The Court construes this argument as a
motion for leave to file a such a revised statement, grants the motion over defendant’s objection,
and construes defendant’s motion to strike as being directed to the revised statement.
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The Court need not (and, for reasons of judicial economy, will not) address each of
defendant’s arguments; it suffices to say that most of them are well taken, even as to the revised
statement, because plaintiff’s fact statements are deficient in many respects. Nonetheless, the
Court denies defendant’s motion as moot because it did not rely on any of plaintiff’s statements
or denials that do not comport with Local Rule 56.1.1 In fact, as will become clear in the Court’s
discussion below, it was unnecessary for the Court to rely on the vast majority of the parties’ fact
statements.
3.

Plaintiff’s Motion

After plaintiff responded to defendant’s summary judgment motion and fact statement,
and after defendant moved to strike plaintiff’s statement of additional facts, plaintiff filed his
own motion to strike defendant’s fact statement and exhibits. Plaintiff first contends that several
exhibits defendant has submitted and the portions of defendant’s statement that rely on those
documents must be stricken because defendant failed to submit an authenticating declaration in
support of the exhibits. The documents consist of various Ardagh personnel records pertaining
to plaintiff (job-performance warnings, performance evaluations, notes of meetings, and time
records) and an excerpt from a “Union Shop Contract.” (Def.’s App., Exs. E, G, H, J, K.)
Plaintiff also asserts that the performance warnings should be stricken as irrelevant and
submitted only to “disparage plaintiff’s character.” (ECF No. 53, Pl.’s Mot. Strike at 3.)

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The Court denies defendant’s request for fees and costs associated with preparing its motion
to strike and its response to plaintiff’s revised statement of additional facts.
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It is puzzling that plaintiff disputes the relevancy of performance warnings on which his
claims are evidently (at least in part) premised.2 But in any event, the Court denies plaintiff’s
motion as moot because it did not rely on the documents or related statements that plaintiff asks
the Court to strike.
B.

Defendant’s Motion for Summary Judgment
1.

Legal Standards

“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The Court must construe the evidence and all inferences that reasonably can be
drawn therefrom in the light most favorable to the nonmoving party. Kvapil v. Chippewa Cty.,
752 F.3d 708, 712 (7th Cir. 2014). 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). Rule 56 imposes the initial burden on the movant to inform the court why a trial is not
necessary. Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Where the nonmovant
bears the ultimate burden of persuasion on a particular issue, the movant’s initial burden may be
discharged by pointing out to the court that there is an absence of evidence to support the
nonmoving party’s case. Id. Upon such a showing, the nonmovant must then “make a showing
sufficient to establish the existence of an element essential to that party’s case.” Id. (internal
quotation marks and citation omitted). The nonmovant need not depose his own witnesses or
produce evidence in a form that would be admissible at trial, but he must go beyond the

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Because plaintiff’s response to defendant’s motion for summary judgment lacks specificity,
it is not clear on which performance warnings his claims are based.
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pleadings to demonstrate that there is evidence upon which a jury could find in his favor. Id. at
1168-69 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)).
2.

Race and National-Origin Discrimination

Defendant contends that plaintiff is not entitled to pursue his Title VII or IHRA claims,
to the extent they are based on race and national-origin discrimination, because they were not
originally included in plaintiff’s IDHR Charge. Generally, a plaintiff may not bring Title VII or
IHRA claims that were not previously included in an Equal Employment Opportunity
Commission (“EEOC”) or IDHR administrative charge. Sitar v. Ind. Dep’t of Transp., 344 F.3d
720, 726 (7th Cir. 2003); McQueen v. City of Chi., 803 F. Supp. 2d 892, 902 (N.D. Ill. 2011)
(citing federal and state decisions).3 The only exception to this rule is that claims may be
brought that are “‘like or reasonably related’ to the [administrative] charge, and can be
reasonably expected to grow out of an [agency] investigation of the charges.” Sitar, 344 F.3d at
726 (citing Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en
banc)). For purposes of this standard, “claims are not alike or reasonably related unless there is a
factual relationship between them.

This means that the [administrative] charge and the

complaint must, at minimum, describe the same conduct and implicate the same individuals.”
Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th Cir. 2002) (citation, internal
quotation marks, and emphasis omitted).

When a complaint raises a different theory of

discrimination than was raised in the administrative charge, a court must be able to reasonably
infer the different theory of discrimination from the facts alleged in the charge in order for the

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“This rule serves two purposes: affording the [administrative agency] the opportunity to
settle the dispute between the employee and employer, and putting the employer on notice of the
charges against it.” Sitar, 344 F.3d at 726.
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complaint to fall within the scope of the charge. Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d
520, 527 (7th Cir. 2003).
In addition to his allegations of retaliation, plaintiff also alleges that he is “a person of
Hispanic origin” and that Ardagh discriminated against him because of his race or national
origin. (ECF No. 1-1, Compl. ¶¶ 22-24.) He complained only of retaliation in his IDHR Charge
and did not claim discrimination based on race or national origin (or any other type of
discrimination). “Normally, retaliation and discrimination charges are not considered ‘like or
reasonably related’ to one another.” Swearnigen-El v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 852,
864-65 (7th Cir. 2010). Plaintiff asserts broadly, without further specificity, that his claims are
so related because “Defendant’s retaliatory conduct is clearly intertwined with the discriminatory
reasoning by the same people (Defendant); it involves the same conduct (demotion that is
retaliatory and directly related to African-American domination over all other races) and the
same time (during Plaintiff’s time working for Defendant).” (ECF No. 39, Pl.’s Br. Opp’n
Def.’s Mot. Summ. J. at 11.)

Plaintiff further argues that “[t]hese racial discrimination

allegations” were brought to the IDHR’s attention “via letter, dated March 31, 201[6], which was
requested by the [IDHR] as part of its investigation,” thus precluding summary judgment against
plaintiff. (Id. at 12.)
After carefully reviewing plaintiff’s IDHR Charge and the IDHR’s written Investigation
Report, the Court is unable to infer from the facts and arguments presented therein that plaintiff
previously raised any theories of discrimination based on race and national origin. The Charge
itself fails to mention or imply such theories. The Investigation Report discusses three sets of
allegations, or “Counts,” that plaintiff raised during the investigation: harassment in early 2015
to June 2015 by his supervisors, Don Spells and Tom Jones; the company’s issuance of a written
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warning to plaintiff in June 2015 for insubordination; and plaintiff’s demotion in June 2015 from
electro-mechanic to forklift operator. (Def.’s App., Ex. B.) Plaintiff alleged that each of these
adverse actions was in retaliation for his family member’s filing of an EEOC discrimination
charge in 1998, and that the demotion was also in retaliation for plaintiff’s complaint to a union
representative about having been disciplined in relation to a broken chain. While plaintiff
alleged that his family member had alleged racial discrimination in 1998, he did not allege that
any of the actions against him in 2015 were based on racial or national-origin discrimination, nor
did he allege any facts that suggested such a claim.
As for the March 2016 letter from plaintiff’s counsel to the IDHR, it was evidently
submitted ex parte. Its only reference to race or national-origin discrimination is on the last of
five pages beneath the heading “On the Basis of Retaliation,” where plaintiff’s counsel stated
without further elaboration or factual allegations that “because of [plaintiff’s] race, decision
makers at the company refused to promote” him to a “straight day shift,” and that because
plaintiff’s family is “of Hispanic background, . . . [plaintiff] felt that this was the reason he was
not being promoted at [Ardagh].” (ECF No. 39-12 at 5.) The letter does not indicate that it was
provided to Ardagh such that the employer received notice of plaintiff’s discrimination claim.
Moreover, given the discussion in the IDHR’s Investigation Report, it appears that these portions
of the letter did not prompt the agency to investigate the allegation that plaintiff was not given a
straight day shift due to racial or national-origin discrimination. The Court is unpersuaded that
plaintiff’s conclusory and ex parte allegations in a letter sent six months after the Charge was
filed enlarged the scope of the Charge so as to make the discrimination charges reasonably
related to the claimed retaliation. Although our Court of Appeals has recognized that “issues
implied by a charge and communicated to the employer in the course of investigation can
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enlarge the set of claims open to litigation,” O’Rourke v. Continental Casualty Co., 983 F.2d 94,
97 (7th Cir. 1993), plaintiff’s Charge did not imply racial or national-origin discrimination, nor
is there any evidence to support an inference that these issues were communicated to Ardagh
during the course of the administrative investigation.
The Court holds that Cervantes’s claims for race and national-origin discrimination are
not like or reasonably related to his IDHR Charge of retaliation and could not reasonably be
expected to grow out of its investigation. Accordingly, the Court grants defendant’s motion for
summary judgment to the extent that plaintiff’s Title VII and IHRA claims are based on race and
national-origin discrimination.
3.

Retaliation

Title VII prohibits employers from punishing employees for opposing unlawful
discrimination. 42 U.S.C. § 2000e–3(a). Retaliation is also a cognizable claim under the IHRA.
Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 887 (7th Cir.) (citing 775 ILCS 5/6101), cert. denied, 137 S. Ct. 82 (2016). Illinois courts apply Title VII’s analytical framework to
IHRA claims. Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016);
Zaderaka v. Ill. Human Rights Comm’n, 545 N.E.2d 684, 687 (Ill. 1989). To prove a retaliation
claim, plaintiff must “present evidence of (1) a statutorily protected activity; (2) a materially
adverse action taken by the employer; and (3) a causal connection between the two.” Volling,
840 F.3d at 383. The inquiry on summary judgment is whether the record contains sufficient
evidence to permit a reasonable factfinder to conclude that retaliatory motive caused the adverse
action. Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016).
“It is a well-settled rule that a party opposing a summary judgment motion must inform
the trial judge of the reasons, legal or factual, why summary judgment should not be entered.”
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Domka v. Portage Cty., 523 F.3d 776, 783 (7th Cir. 2008). Plaintiff has failed to do so. He
maintains that his performance warnings and demotion were retaliatory. (Pl.’s Br. Opp’n Def.’s
Mot. Summ. J. at 16-17.) But his argument is entirely conclusory. He does not identify the
protected activity in which he engaged that allegedly led to the warnings and/or demotion;
instead, he asserts only vaguely that he “had previously complained to his superiors of
discrimination and harassment as a result of his ethnic background.” (Id.) “An employee
engages in a protected activity by either: (1) filing a charge, testifying, assisting or participating
in any manner in an investigation, proceeding or hearing under Title VII or other employment
statutes; or (2) opposing an unlawful employment practice. Vague and obscure ‘complaints’ do
not constitute protected activity.” Northington v. H & M Int’l, 712 F.3d 1062, 1065 (7th Cir.
2013); see also King v. Ford Motor Co., 872 F.3d 833, 841 (7th Cir. 2017) (summary-judgment
filings that “speak in sweeping terms” or at a “high level of generality” about protected activity
are insufficient to avoid summary judgment).4 Furthermore, as defendant points out, plaintiff
does not identify what evidence supports his assertion that he complained to his supervisors
about discrimination. Plaintiff also makes no attempt to connect the vague complaints to his
performance warnings and demotion by identifying who was responsible for those adverse
actions or discussing whether that person or persons would have been aware of any of plaintiff’s

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It is actually defendant who identifies one possible instance of protected activity—plaintiff’s
filing of an EEOC charge against the defendant in 1998. But plaintiff does not even mention this
fact in his response brief and therefore waives it as a basis for retaliation. See Hassebrock v.
Bernhoft, 815 F.3d 334, 342 (7th Cir. 2016) (arguments not made in response to a motion for
summary judgment are waived).
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protected activity. Accordingly, the Court grants defendant’s motion for summary judgment on
plaintiff’s retaliation claim.
4.

Intentional Infliction of Emotional Distress

To survive summary judgment on an IIED claim, a plaintiff must show that (1) the
defendant’s conduct was extreme and outrageous; (2) the defendant intended that the conduct
would cause severe emotional distress, or knew that there was at least a high probability that the
conduct would inflict severe emotional distress; and (3) the conduct did in fact cause severe
emotional distress. Boston v. U.S. Steel Corp., 816 F.3d 455, 467 (7th Cir. 2016) (citing Illinois
law). “IIED requires more than mere insults, indignities, threats, annoyances, petty oppressions,
or other trivialities.” Id. (citation and internal quotation marks omitted). “Courts have found
extreme and outrageous behavior in situations where an employer clearly abuses the power it
holds over an employee in a manner far more severe than the typical disagreements or
job-related stress caused by the average work environment.” Id. (internal quotation marks and
citation omitted).
Plaintiff’s IIED claim is premised on defendant’s failing to promote him, demoting him,
and issuing him performance warnings. Defendant argues, and the Court agrees, that this
conduct does not meet the high bar under Illinois law for “extreme and outrageous” behavior in
the employment context. See Breneisen v. Motorola, Inc., 512 F.3d 972, 983 (7th Cir. 2008)
(“None of the conduct complained of by the plaintiffs, which includes being demoted,
questioned or criticized upon return from FMLA leave, passed over for raises or given reduced
raises, denied tuition reimbursements, or given unexcused absences meet this demanding
standard.”); Welsh v. Commonwealth Edison Co., 713 N.E.2d 679, 684 (Ill. App. Ct. 1999) (no

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“extreme and outrageous” conduct where employees alleged that they were demoted, transferred,
forced to perform “demeaning” and “humiliating” tasks, harassed, intimidated, and threatened
with termination, all in retaliation for having voiced safety concerns). Plaintiff offers only a
cursory response and cites no authority supporting his contention that the complained-of conduct
is “extreme and outrageous.” The Court therefore grants defendant’s motion for summary
judgment as to plaintiff’s IIED claim.
CONCLUSION
Defendant’s motion for summary judgment [29] is granted, and judgment will be entered
in favor of defendant and against plaintiff. Defendant’s motion to strike plaintiff’s response to
defendant’s statement of undisputed facts and plaintiff’s counter-statement of undisputed facts
[42] is denied as moot. Plaintiff’s motion to extend time to depose expert witnesses [47] is
denied as moot. Plaintiff’s motion to strike defendant’s statement of undisputed material facts
and exhibits [53] is denied as moot. Civil case terminated.

DATE: November 14, 2017

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Ronald A. Guzmán
United States District Judge

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