Kaniewski v. Roundy's Illinois, LLC

Filing 46

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 8/5/2019. Defendant's Motion for Summary Judgment 22 is granted and Plaintiff's case is dismissed. Plaintiff's discrimination and retaliation claims fail as a matter of law because she voluntarily resigned from her position and never suffered an adverse employment action. Defendant's Motion to Strike certain portions of Plaintiffs Local Rule 56.1 Response 35 is dismissed as moot. See Order for further details. Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BREANN KANIEWSKI,
Plaintiff,
v.
ROUNDY’S ILLINOIS, LLC,
Defendant.

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No. 18 C 2082
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiff Breann Kaniewski brought a one count Complaint against her former
employer, Defendant Roundy’s Illinois, LLC (d/b/a/ Mariano’s). Plaintiff, who was
employed as a pharmacy technician, alleges that Defendant violated Title VII of the
Civil Rights Act, as amended by the Pregnancy Discrimination Act, when one of its
store managers proposed reducing her work schedule in anticipation of her return
from pregnancy leave. Defendant now moves for summary judgment on the grounds
that Plaintiff never experienced an adverse employment action, among other reasons.
For the reasons stated below, Defendant’s Motion for Summary Judgment is granted.
BACKGROUND
Plaintiff was hired on December 12, 2015 to work as a full-time pharmacy
technician in the Shorewood, Illinois, Mariano’s store. (Dkt. 32, ¶ 4). When she began
her employment, Plaintiff read and acknowledged receipt of the Mariano’s Employee
Handbook which puts employees on notice that they are never guaranteed a certain
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number of hours. (Id. at ¶¶ 18, 20). Pursuant to the operative collective bargaining
agreement, pharmacy technicians are paid on an hourly basis while pharmacists at
Mariano’s are salaried positions. (Id. at ¶ 7). The CBA further defines full-time
employees as those who work at least 35 hours per week. (Id. at ¶ 11). Full-time
pharmacy technicians are considered “Level 3” employees and receive a higher hourly
wage range than part-time, “Level 2” technicians. (Id. at ¶ 12). Plaintiff began her
employment at Mariano’s as a Level 3 technician, earning $14.85 an hour. (Id. at ¶
13).
Three months after being hired, Plaintiff informed Defendant in March 2016
that she was pregnant. (Id. at ¶ 24). She eventually was granted a leave of absence
which lasted for approximately three months, including the time immediately before
and after she gave birth. (Id. at ¶¶ 25, 27-28). Plaintiff’s last day of work before her
pregnancy leave was September 2, 2016, and she was scheduled to return to work in
December 2016. (Id.).
Prior to Plaintiff’s return to work, Ryan Tutko, the pharmacy manager,
scheduled a meeting with Plaintiff in early December 2016. (Id. at ¶¶ 33-35). The
purpose of this meeting was to discuss Plaintiff’s hours of availability upon her return
from pregnancy leave and to place her back on the store’s work schedule. (Id.).
During the meeting, Plaintiff told Tutko that she wanted to return to work on a fulltime basis but would require a modified work schedule to accommodate her childcare
needs. (Id. at ¶ 38). Tutko expressed that he did not have a problem with a modified
work schedule. (Id.). Because of this, Plaintiff was required to complete a new “Hours

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of Availability” form, which again contained language advising employees that no
amount of hours is ever guaranteed. (Id. at ¶ 39). Plaintiff understood at the time of
this meeting that if she worked less than 35 hours per week, she would not be
considered a full-time employee and would likewise see a reduction in her hourly
wage. (Id. at ¶¶ 40-41, 45).
Also, during the meeting between Plaintiff and Tutko, Tutko gave Plaintiff a
copy of his scheduling notes which suggested a schedule of 25 hours per week for
Plaintiff starting on December 19, 2016. (Id. at ¶ 42). December 19, 2016 was the
earliest possible day that Plaintiff could return to work as prescribed by CBA rules.
(Id. at ¶¶ 43-44). The People Services Manager—not Tutko—is solely responsible for
preparing the storewide schedule, with ultimate approval by the Store Director. (Id.
at ¶ 53, 55-56). While Tutko submits his scheduling notes to the People Services
Manager, these notes are often rejected and other schedules are implemented. (Id.
at ¶ 57). Specifically, Tutko’s proposed 25 hour schedule for Plaintiff could not have
been implemented because the scheduling software would not have permitted
Plaintiff to be scheduled for less than 35 hours per week. (Id. at ¶ 58). The only
individual within the Mariano’s entity with the authority to change Plaintiff’s status
from a full-time employee to a part-time employee was the Vice President of Human
Resources. (Id. at ¶ 66).
Instead of returning to work as scheduled, Plaintiff resigned on December 17,
2016, via fax. (Id. at ¶¶ 27, 31). Plaintiff never worked under the part-time schedule

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as proposed by Tutko in the December meeting, nor did she ever receive a reduction
in pay. (Id. at ¶¶ 68-70, 74).
LEGAL STANDARD
Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits, show that there
is no genuine issue of material fact and the movant is entitled to judgment as a matter
of law.” Sorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015). In determining
whether a genuine issue of fact exists, the Court must take the evidence and draw all
reasonable inferences in favor of the party opposing the motion. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); see also Bennington v. Caterpillar Inc., 275 F.3d
654, 658 (7th Cir. 2001). The party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for
the plaintiff.” Anderson, 477 U.S. at 252. A failure to make a showing of just one
element of the prima facie case is fatal to a plaintiff at the summary judgment stage.
See Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 702 (7th Cir. 2012). If
plaintiff satisfies the prima facie elements, the burden shifts to the defendant to
proffer a legitimate and nondiscriminatory reason for the allegedly discriminatory
action taken. Id. Then, if defendant offers a nondiscriminatory reason, the burden

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returns to plaintiff to “produce[] evidence that the proffered reason was a pretext for
improper discrimination.” Id.
The Court “limit[s] its analysis of the facts on summary judgment to evidence
that is properly identified and supported in the parties’ [Local Rule 56.1] statement.”
Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000).
Where a proposed statement of fact is supported by the record and not adequately
rebutted, the Court will accept that statement as true for purposes of summary
judgment. An adequate rebuttal requires a citation to specific support in the record;
an unsubstantiated denial is not adequate. See Anderson, 477 U.S. at 248; Drake v.
Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (“Rule 56 demands
something more specific than the bald assertion of the general truth of a particular
matter, rather it requires affidavits that cite specific concrete facts establishing the
existence of the truth of the matter asserted.”) (internal quotations omitted).
DISCUSSION
I. Pregnancy Discrimination Claim
Plaintiff’s pregnancy discrimination claim fails as a matter of law almost as
soon as it begins as she fails to present sufficient evidence to make a prima facie
showing of employment discrimination.

Quite simply, Plaintiff did not suffer a

cognizable injury in the form of an adverse employment action—an undisputed fact
that is fatal to her claim.
At the summary judgment stage Plaintiff must “present evidence that (1) she
is a member of a protected class, (2) she was meeting the [Defendant’s] legitimate

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expectations, (3) she suffered an adverse employment action, and (4) similarly
situated employees outside of her protected class were treated more favorably.”
Fields v. Bd. of Educ. of City of Chicago, 928 F.3d 622, 625 (7th Cir. 2019). Here,
Defendant does not contest that Plaintiff has satisfied the first two elements of her
claim, but instead challenges the latter two prongs, focusing the bulk of its argument
on the adverse employment element. See Dkt. 23, pg. 3. For her part, Plaintiff
responds that she suffered an adverse employment action by way of being
constructively discharged when Tutko “slashed [her] pay down to minimum wage; cut
her hours from full-time to less than 20 hours per week (i.e., to part-time status); and
indicated that there was no guarantee that she would be scheduled for any hours at
all.” Dkt. 32, ¶ 67.
An employee’s constructive discharge can satisfy the adverse employment
element and has been recognized in two forms. “The first occurs when a plaintiff
resigns due to discriminatory working conditions even more egregious than that
required for a hostile work environment claim. … The second occurs when an
employer acts in a manner that would make clear to a reasonable employee that she
will be immediately fired if she does not resign.” Fields, 928 F.3d at 625 (internal
citations and quotations omitted). The first type of constructive discharge “require[s]
a plaintiff to show working conditions even more egregious than that required for a
hostile work environment claim because employees are generally expected to remain
employed while seeking redress … thereby allowing an employer to address a
situation before it causes the employee to quit.” Chapin v. Fort-Rohr Motors, Inc.,

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621 F.3d 673, 679 (7th Cir. 2010). One such method of establishing constructive
discharge under this avenue is when there is a personal threat to plaintiff’s safety.
Id. The second form of constructive discharge requires “the plaintiff to show that his
working conditions had become intolerable.” Id. Importantly, “a working condition
does not become intolerable or unbearable merely because a ‘prospect of discharge
lurks in the background.’” Id. (quoting Cigan v. Chippewa Falls Sch. Dist., 338 F.3d
331, 333 (7th Cir. 2004)).
Addressing each theory in turn, Plaintiff first fails to establish constructive
discharge under a theory of discriminatory working conditions. Plaintiff asserts that
Tutko, her manager, was responsible for creating a discriminatory work
environment. Specifically, she alleges that Tutko would not allow her to sit while she
was at work, told her that “working with kids would not work out,” and told her that
she would have to pump breast milk during her two fifteen minute breaks. See Dkt.
34, pgs. 4-7. Even when taking these allegations as true for purposes of this Motion,
the isolated actions and pregnancy-related remarks fall far short of the demanding
threshold necessary to establish constructive discharge.

Notably absent from

Plaintiff’s allegations are any threats of violence or harm to her personally. Though
personal threats are not necessary, some sort of similarly egregious discriminatory
actions or remarks, are required to meet the constructive discharge standard under
this theory. See Fields, 928 F.3d at 625 (“She has no evidence that she was subjected
to a threat of violence or other conditions that are more severe than those required to
establish a hostile work environment.”). Taken in the aggregate, Plaintiff’s sporadic

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allegations would even fail to meet the lower threshold of a hostile work environment.
Whittaker v. N. Illinois Univ., 424 F.3d 640, 648-49 (7th Cir. 2005) (“Because, as we
have already found, [plaintiff] has failed to show work conditions so egregious as to
meet the stringent hostile work environment standard, she certainly cannot reach
the even higher threshold required to show a constructive discharge.”). While the
purported comments from Tutko are no doubt inappropriate they do not come close
to being “objectively intolerable” especially when considered in light of other
discrimination cases where plaintiffs failed to establish a hostile work environment.
Fields, 928 F.3d at 625; see also Fischer v. Avanade, Inc., 519 F.3d 393, 410-11 (7th
Cir. 2008) (finding no constructive discharge where plaintiff was told that she had to
relocate or transfer); Overly v. KeyBank Nat. Ass’n, 662 F.3d 856, 862 (7th Cir. 2011)
(“While both inappropriate and condescending, Bielecki referring to Overly as ‘cutie’
5 to 10 times over the course of two months is not sufficiently severe or pervasive to
create a hostile work environment by itself…”); Scruggs v. Garst Seed Co., 587 F.3d
832, 841 (7th Cir. 2009) (sporadic comments that plaintiff was “made for the back
seat of a car” and looked like a “dyke” were not physically threatening and did not
rise to the level of an objectively hostile work environment).

Accordingly, no

reasonable factfinder could conclude that Plaintiff was constructively discharged by
way of discriminatory working conditions.

Plaintiff’s allegations fall short of

establishing a hostile work environment, much less the heightened standard which
is reserved for particularly egregious conduct.

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Plaintiff next suggests that she was constructively discharged due to the threat
of her imminent termination. To establish a claim of constructive discharge by way
of imminent termination, plaintiff bears the burden of showing that it is all but
certain she will be fired from her position. See Fischer, 519 F.3d at 409 (“In other
words, constructive discharge also occurs where, based on an employers actions, the
handwriting [was] on the wall and the axe was about to fall.”) (internal quotations
omitted). Plaintiff contends that she suffered an adverse employment action when
she was told she would receive a cut in her hours and pay. This argument highlights
the fundamentally fatal flaw underlying the entirety of Plaintiff’s Complaint and
theory of the case—that she was not constructively discharged because she
voluntarily resigned from her position as a pharmacy technician.
Here, it is undisputed that Plaintiff voluntarily resigned from her position on
December 17, 2016, before she ever worked a reduced schedule or

received a

reduction in pay. Dkt. 32, ¶¶ 68-70, 74. A careful read of Plaintiff’s arguments, all
phrased in the future tense, confirms that she proceeds on a theory of future adverse
employment actions. See e.g., Dkt. 34, pg. 8 (“…told her that she might not work any
more hours at all…”) (emphasis added). Tutko’s “threat” of reducing her scheduled
hours and pay did not send the objectively clear message that Plaintiff’s termination
was inevitable. Part-time status, while perhaps not preferable to Plaintiff, is far from
termination. See e.g., Hamer v. Neighborhood Hous. Servs. of Chicago, 2015 WL
5439362, at *12 (N.D. Ill. Sept. 10, 2015), aff’d, 897 F.3d 835 (7th Cir. 2018) (“While
the Court recognizes that accepting the administrative position was not preferable to

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Plaintiff because of the reduction in pay and the increased travel expenses, her
situation does not rise to the level of being intolerable.”). However, even if it could be
said that a reduction in hours is tantamount to termination, the threat of future harm
simply cannot amount to an adverse employment action. Lewis v. Wilkie, 909 F.3d
858, 870 (7th Cir. 2018) (holding that an “unfulfilled threat of discipline” and “threat
of future discipline” which “result[] in no injury or harm greater than stress and
worry” do not constitute an adverse employment action); Rohler v. Rolls-Royce Corp.,
523 F.App’x 418, 421 (7th Cir. 2013) (“The threat of termination … was unfulfilled,
and an empty threat is not a materially adverse employment action.”); Poullard v.
McDonald, 829 F.3d 844, 856-57 (7th Cir. 2016) (holding that a threat of future harm,
without actual economic harm is not an adverse employment action). Plaintiff’s
concession that she did not ever work a reduced schedule or receive a lower wage
ultimately sinks her claim. Because plaintiffs are normally required to stay employed
so that a resolution can be reached within the confines of the employer’s resolution
process, a hypothetical adverse action that is never actually realized is not considered
an adverse employment action. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 112021 (7th Cir. 2009) (“Nagle did not suffer any hardship connected with the suspension
because he never actually served it.”). Plaintiff complains of a reduction in her hours
and pay, yet never once worked a week under the reduced hours structure or received
a single paycheck at a lower hourly wage. (Dkt. 32, ¶¶ 68-70, 74). Additionally, the
governing collective bargaining agreement would not have allowed Plaintiff to return

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to work until December 19, 2016—notably after she submitted her resignation letter.
(Id. at ¶ 43-44).
Plaintiff’s attempt to litigate anticipated consequences is impermissible. See
Cigan, 388 F.3d at 333-34 (“The only way to know how matters will turn out is to let
the process run its course. Litigation to determine what would have happened … is
a poor substitute for the actual results…”) (emphasis in original). Even when given
the most generous interpretation, Plaintiff simply cannot plead around the fact that
she voluntarily resigned from her position before any of the alleged adverse actions
were implemented. The mere prospect of a reduction in hours or pay is not an adverse
action. See e.g., Golden v. World Sec. Agency, Inc., 884 F.Supp.2d 675, 693-94 (N.D.
Ill. 2012) (finding that summary judgment is appropriate, consistent with Whittaker,
where plaintiff quit before experiencing a reduction in hours). Therefore, in the
absence of an adverse employment action, Plaintiff’s pregnancy discrimination claim
must fail as a matter of law. There is no triable issue of fact and summary judgment
is granted in favor of Defendant.
II. Pregnancy Retaliation Claim
While Plaintiff’s Complaint facially alleges just one count of pregnancy
discrimination, the language of the Complaint also speaks to a claim of retaliation.
See Dkt. 1. While this certainly presents a different theory of the case, the applicable
standard is much the same.

“To survive summary judgment [plaintiff] need[s]

evidence that would permit a reasonable factfinder to conclude that her engagement
in protected activity caused a materially adverse employment action.” Fields, 928

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F.3d at 626. Not unlike establishing a claim of discrimination, the fact that Plaintiff
must demonstrate she suffered an adverse action is inescapable. Accordingly, the
reasoning outlined above is equally applicable here, whereas in Fields, Plaintiff
“cannot establish that she suffered an adverse employment action … let alone one
taken with the intent to retaliate.”

Id.

Once again, potential and prospective

employment actions cannot permit a reasonable factfinder to conclude that Plaintiff
was retaliated against. Id; see also Madlock v. WEC Energy Group, Inc., 885 F.3d
465, 472 (7th Cir. 2018); Poullard, 829 F.3d at 846 (“While we do not doubt that the
possibility of discipline can be stressful, we have previously held that this kind of
threat is not enough to support a claim for retaliation.”); Chapin, 621 F.3d at 679.
Plaintiff’s failure to establish the adverse action prong in her retaliation claim,
as with her discrimination claim, makes summary judgment the appropriate vehicle
to dispose of the case. See Arizanovska, 682 F.3d at 702. The undisputed material
facts make it abundantly clear that Plaintiff voluntarily resigned from her position
and as a direct result of her decision, she never suffered an adverse employment
action.
CONCLUSION
For the reasons stated within, Defendant’s Motion for Summary Judgment
(Dkt. 22) is granted and Plaintiff’s case is dismissed. Plaintiff’s discrimination and
retaliation claims fail as a matter of law because she voluntarily resigned from her
position and never suffered an adverse employment action. Additionally, Defendant’s

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Motion to Strike certain portions of Plaintiff’s Local Rule 56.1 Response is dismissed
as moot.

Date: August 5, 2019

____________________________________
Virginia M. Kendall
United States District Judge

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