Brandenburg v. Earl L. Henderson Trucking Co., LLC et al
Filing
133
ORDER DENYING 115 Second MOTION for Summary Judgment filed by Premium Transportation Staffing, Inc. and Premium Enterprises, Inc.; DENYING 107 MOTION for Partial Summary Judgment filed by Julie Brandenburg; DENYING 129 MOTION to Strike 125 Me morandum in Opposition to Motion filed by Earl L. Henderson Trucking Co., LLC; and DENYING 117 MOTION for Summary Judgment filed by Earl L. Henderson Trucking Co., LLC. ( Final Pretrial Conference set for 8/26/2011 10:00 AM in East St. Louis Courthouse before Chief Judge David R. Herndon.) Signed by Chief Judge David R. Herndon on 7/20/11. (klh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JULIE BRANDENBURG,
Plaintiff,
v.
EARL L. HENDERSON TRUCKING,
CO., LLC., and PREMIUM TRANSPORTATION
STAFFING, INC. and PREMIUM ENTERPRISES,
INC.,
Defendants.
No. 09-0558-DRH
MEMORANDUM and ORDER
HERNDON, Chief Judge:
I. Introduction and Background
Now before the Court are several motions for summary judgment filed by the
parties: (1) Brandenburg’s motion for partial summary judgment (Doc. 107); (2)
Premium Transportation Staffing, Inc., and Premium Enterprises, Inc.’s second
motion for summary judgment (Doc. 115) and (3) Earl L. Henderson Trucking Co.’s
motion for summary judgment (Doc. 117). Based on the applicable law and the
following, the Court denies the motions.
On December 4, 2009, Julie Brandenburg filed a Second Amended Complaint
against her former employers Earl L. Henderson Trucking Co., LLC (“Henderson”),
Premium Transportation Staffing, Inc. (“Premium Transportation”), and Premium
Enterprises, Inc. (“Premium Enterprises”) (Doc. 38).
The Second Amended
Complaint alleges that defendants discriminated against her because of her gender,
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that plaintiff protested the discrimination and that she was constructively discharged
in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e,
et seq. (Count I) and in violation of the Illinois Human Rights Act, 775 ILCS 5-101,
et seq. (Count II). Brandenburg’s Second Amended Complaint alleges that in late May
or early June 2007, defendants denied her the position of Safety Director because of
her gender and then assigned her the duties of the Safety Director without the pay of
employees in director positions because of her gender. She also claims that in
December 2007, defendants constructively discharged her from her employment.
On June 2, 2010, the Court entered an Order granting in part and denying in
part the defendants’ motions to dismiss (Doc. 88).1 The Court granted the motion as
to her May 2007 failure to promote claim in Count II and as to the claims contained
in Count II against Premium Transportation and Premium Trucking. Thereafter, the
parties filed the pending motions for summary judgment.
II. Undisputed Facts2
John Kaburick is the owner and CEO of Henderson Trucking and his son,
Josh Kaburick, is the COO. In 1999, plaintiff began working for Henderson Trucking
as an over-the-road driver. In 2003, she moved to the office and worked in the Safety
Department as the Log Clerk, then as the Cargo Claims Clerk and then as Assistant
1
Prior to ruling on defendants’ motions to dismiss, the Court converted portions of
defendants Premium Transportation and Premium Enterprises’s motion to dismiss regarding
whether these defendants were plaintiff’s employers and whether plaintiff satisfied the Title VII
requirements for filing against Premium Enterprises.
2
The Court has carefully reviewed the parties’ recitations of the facts. The Court has
attempted to limit its discussion of the facts to those facts which are material to the issues in this
case based upon the applicable law and not in dispute.
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Safety Director in 2004.
Until May 24, 2007, Keith Kruckenberg held the position of Safety Director and
he was in charge of the Safety Department. In 2004, Josh Kaburick had plaintiff and
other women come in the office over the weekend and help Kruckenberg with his
workload. During this time frame, Henderson Trucking changed Brandenburg’s title
to Assistant Safety Director. Her job was to assist Kruckenberg by helping him catch
up with his work and become efficient.
On May 24, 2007, Kruckenberg was fired and the position of Safety Director
was eliminated. As a result, Bill Beatty, Director of Recruiting, was promoted to Vice
President of Safety and Recruiting. Beatty oversaw the Safety Department and the
Recruiting Department. Beatty also took over the duties of the Safety Director.
Beatty had never worked in the Safety Department and did not know how to perform
the job. During this time, plaintiff was given additional job duties to help Beatty run
the Safety Department. She also was given the additional duties of the Claims Clerk
because the person who held that position was not fully trained in June 2007 and
quit the job in October 2007.
In June 2007, plaintiff’s pay rate was $12.30. She did not receive a raise for
her new responsibilities at that time. In November 2007, her pay rate increased to
$13.00 an hour. Also in June 2007, Henderson Trucking promoted Mike Thompson,
head of Lease Operations, to Beatty’s former position.
Throughout her employment with Henderson Tucking, Brandenburg received
two raises in 2004, one raise in 2005, two raises in 2006 and one raise in 2007.
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From 2003 to 2007, her pay range went from $7.50 an hour to $13.00 an hour. When
Kruckenberg was Safety Director his pay was $25.43 an hour. Kruckenberg’s
predecessor, Bob Coffey’s pay was $24.56 an hour. Mike Thompson’s pay increased
from $22.10 an hour to $24.04 an hour with his promotion. Beatty’s pay was $29.72
an hour.
On December 13, 2007, Brandenburg sent another employee at Henderson
Trucking an in-house message inquiring about whether Steve Mulvaney makes more
money than Debbie Smith. The next day, Beatty sent plaintiff an email asking her
why she was inquiring about other employee’s salaries. In response, Brandenburg
stated that she was curious and that she was quitting. That morning, Brandenburg
quit her job at Henderson Trucking. That same day after she quit, plaintiff sent an
email to Josh Kaburick stating: “I would be willing to stay with Earl L. Henderson
Trucking if there was an offer to fairly raise my salary to the salary of someone in an
equal position and equivalent duties. As per the duties I am performing, I feel that
my position deserves a promotion.”
III. Summary Judgment Standard
Summary judgment is appropriate only when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c). A genuine issue
of material fact exists when the evidence is such that a reasonable jury could find for
the nonmovant. Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). The
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movant in a motion for summary judgment bears the burden of demonstrating the
absence of a genuine issue of material fact by specific citation to the record; if the
party succeeds in doing so, the burden shifts to the nonmovant to set forth specific
facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. Proc. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In considering motions for
summary judgment, a court construes all facts and draws all inferences from the
record in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
The Court recognizes that “summary judgment is frequently inappropriate in
discrimination cases because intent, and therefore credibility, is often a crucial
issue.” McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir. 1989). While the Court
approaches the question of summary judgment with “special caution” in
discrimination cases, “if a plaintiff in a discrimination case is unable to present any
evidence to create a genuine issue as to whether the defendant's articulated reason
for the firing is the real reason, then summary judgment will be appropriate.” Id. at
188-89; see also Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988).
IV. Analysis3
First, the Court addresses plaintiff’s motion for partial summary judgment.
Specifically, plaintiff moves for summary judgment as to defendants’ respective
3
As stated previously, Brandenburg brings claims under both Title VII and the IHRA. As
the Illinois law utilizes the same standards as the Seventh Circuit in analyzing these types of
claims, the Court will cite to pertinent Seventh Circuit cases. See Freeman United Coal Mining
Co. v. Human Rights Com’n., 173 Ill. App. 3d 965, 973 (Ill. App. 1988); Taylor Co. v. Saari, 308
Ill. App. 3d 242, 245 (Ill. App. 1999); Board of Regents for Regency Universities v. Human
Rights Com’n, 196 Ill. App. 3d 187, 195 (Ill. App. 1990).
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affirmative defenses of failure to mitigate. Plaintiff contends that defendants have
produced no evidence that there were jobs comparable to the job of Assistant Safety
Director that plaintiff held which plaintiff failed to find or accept.
Defendants
contend that issues of material fact exist and that this is a question for the jury to
resolve. Specifically, defendants contend that plaintiff was not reasonable in her job
search and therefore she did not attempt to find comparable employment. Based on
the record, the Court agrees with defendants that there are issues of fact regarding
mitigation.
The general test of whether a plaintiff has failed to mitigate damages is twopronged: the defendant must show that (1) the plaintiff failed to exercise reasonable
diligence to mitigate her damages; and (2) there was a reasonable likelihood that the
plaintiff might have found comparable work by exercising reasonable diligence.
Gaddy v. Abex Corp., 884 F.2d 312, 318 (7th Cir.1989); United States v. City of
Chicago, 853 F.2d 572, 578 (7th Cir.1988); Hutchison v. Amateur Electronic
Supply, Inc. 42 F.3d 1037, 1044 (7th Cir.1994). The plaintiff's burden to mitigate
damages does not require success, but only an honest, good faith effort to locate
comparable employment. See E.E.O.C. v. Ilona of Hungary, Inc., 97 F.3d 204, 216
(7th Cir.1996); Smith, 969 F.2d at 438-439.
Here, the Court finds that there are issues of fact as to the mitigation issue.
Plaintiff testified that she did not apply for any jobs at truck driving companies; that
she applied for less than ten driving jobs and that she applied for only two
managerial positions. In her search for a new job, plaintiff responded to job listings
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posted on internet job sites and/or printed in local newspapers. According to her job
search log, plaintiff searched for employment from January 2008 to December 2009.
During this time, plaintiff also took time off from the job search to enoy time with her
children. Further, that she testified that she did not always follow-up with companies
after sending her resume. Plaintiff stated that she did not utilize a headhunter;
subscribe to any internet posting sites and did not apply to any temporary agencies
or job placement agencies. She further stated that she did not use a vocational
rehabilitation specialist. Clearly, there are questions of fact as to whether plaintiff’s
attempt to find comparable employment was reasonable.
Before addressing the merits of defendants’ motions for summary judgment,
the Court must resolve Henderson’s motion to strike portions of plaintiff’s
memorandum in opposition to Earl L. Henderson’s motion for summary judgment
(Doc. 129). Henderson contends that both plaintiff’s memorandum and exhibits
contains several inadmissable hearsay statements. Specifically, Henderson moves
to strike statements from Brian Mixon, Beatty, an executive administrative assistant,
Debbie Smith and Letha McIntosh contained in paragraphs 9, 13, 14 and 17 of
Brandenburg’s declaration. Henderson also moves to strike as hearsay statements
made by Mike Reagan and Kruckenberg and an unknown dispatcher that are
contained Brandenburg’s answers to interrogatories number 10.
Henderson
contends that none of these people are/were decision makers at Henderson and that
none of these people had the authority or knowledge of the decision-making progress
with regard to hiring or pay, thus, the statements are inadmissable. Plaintiff counters
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that the challenged statements are admissible. The Court agrees with Brandenburg.
“Under Rule 801(d)(2)(D), ‘[a] statement is not hearsay if ... [t]he
statement is offered against a party and is ... a statement by the party’s
agent or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship....’ United
States v. Swan, 486 F.3d 260, 264-65 (7th Cir. 2007)(citing Fed.R.Evid.
801(d)). This Rule ‘simply requires that the statement be made by an
individual who is an agent, that the statement be made during the period
of the agency, and that the matter be within the subject matter of the
agency.’ Young, 327 F.3d at 622.”
Mister v. Northeast Ill. Commuter R.R. Corp., 571 F.3d 696, 698 (7th Cir. 2009).
Furthermore, statements to show state of mind are admissible under Rule 803(3).
Luckie v. Ameritech Corp., 389 F.3d 708, 716 (7th Cir. 2004). Rule 803(3) provides:
A statement of the declarant’s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design,
including a statement of memory or belief to prove the fact remembered
or believed unless it relates to the execution, revocation, identification,
or terms of declarant’s will.
As to the alleged statements of Beatty, the Court finds that they are admissible.
In paragraph 9 of her declaration, Brandenburg claims that the following regarding
her pay increase took place:
“I then told Bill Beatty that I was trying to speak with Kaburick about my
pay increase. Bill said he didn’t think that would be a good idea; he said
‘let me do the talking for you, it would go better for you that way.’”
Further, in paragraph 13 of plaintiff’s declaration, Brandenburg states
that after a multi-car accident in California, the dispatcher, Debbie
Smith told Beatty about the accident and that the driver was on the
phone and that Bradenburg told Smith to ‘Go find Julie.’”
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Brandenburg further declares that Beatty told her that he was not sure what
happened but that she should get the details.
Here, Beatty was plaintiff’s supervisor and was clearly instructing plaintiff how
to handle different aspects of their employment.
The Court finds that these
statements are admissible under Rule 801(d)(2)(D). Also, these statements tend to
show plaintiff’s state of mind with regard to events leading to her constructive
discharge.
As to statements made by Mixon, plaintiff contends that she did not assert that
Mixon made any statements in paragraphs 9, 13 and 14. A review of the declaration
indicates that Brandenburg is correct that these paragraphs do not contain any
statements made by Mixon.
Next, Henderson challenges as hearsay statements made by the executive
administrative assistant in paragraph 14. In this paragraph, Brandenburg states that
the assistant told her the wages of Beatty, Thompson and Kruckenberg. Here,
Brandenburg’s recital of the assistant’s statement regarding wages can be used as
state of mind evidence to demonstrate whether plaintiff reasonably believed that she
had to resign. See E.E.O.C. v. University of Chicago Hospitals, 276 F.3d 326, 333
(7th Cir. 2002). Thus, this statement is not considered hearsay under Rule 803(3).
Henderson also moves to strike statements made by Debbie Smith and Letha
McIntosh contained in paragraph 17 of Brandenburg’s declaration. The statements
are as follows:
“Smith said, ‘why didn’t you take the Safety Director job anyway?’ I said,
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‘I was never asked.’ Smith said, ‘Really?’ and pointed to a labor law
poster above the copy machine that said something about equal pay
(regardless of sex). As she was pointing, Smith said, ‘That don’t mean
crap around here. There’s a male Dispatcher that has less drivers and
less seniority than I do and I’m sure he’s making more money.’ ... I went
back to my desk and asked Letha (Executive Administrative Assistant),
via inhouse messaging, ‘does Steve make more than Debbie?’ Letha did
not respond via inhouse messaging; instead Letha walked up to my desk
and set down a post-it note that said: Steve $16.– Debbie $14.– .... As
she set the post-it note down, Letha said, ‘What do you think about
that?’”
These statements are not hearsay in that they are not offered for the truth of the
matters asserted. Instead these statements are admissible under 803(3) to establish
Brandenburg’s state of mind to demonstrate whether plaintiff reasonably believed
that she had to resign.
Next, Henderson moves to strike Reagan’s statements contained in plaintiff’s
answers to interrogatory 10 as hearsay. In this answer, plaintiff states:
“Plaintiff told Mike Reagan that she believed she was not getting jobs and
higher pay because she was a woman. Reagan acknowledged that
Henderson discriminates against women, and said, ‘If you don’t have a
nice ass and huge tits, you’re never going to get a raise at Henderson
Trucking.’ As best as plaintiff can recall, he said, ‘I have been here a
long time and it was going on years ago when my ex-wife worked here.
Julie, I see this crap happen every day in my department to Lisa
Brubaker and Lori Meyer. They will hire a man off the street with no
experience whatsoever and pay them more than they are paying Lisa or
Lori. Lisa has the capability to sit in any position in operations and do
it well, this Matt guy they hired is something great in their eyes, but all
he does is sit and stare at his cubicle walls eight hours a day. They
hired Matt Davis in making more money than Lisa and she has to train
him. Josh was all gung ho on this guy because he has a degree and he
is ‘High Energy’ yet he has no experience. It makes no sense to me, but
what are you gonna do? It’s their baby!’”
Reagan’s job was Operations Manager and he reported directly to the COO, Josh
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Kaburick. His job was on the same organizational plane as a Vice President and
Executive Vice President.
Reagan’s statements about what he observed in his
supervision as Operations Manager are not hearsay under Rule 801(d)(2)(D).
Further, the statements are also admissible under Rule 803(3) as Brandenburg’s
recital of the Reagan’s statements regarding discrimination can be used as state of
mind evidence to demonstrate whether plaintiff reasonably believed that she had to
resign.
Lastly, Henderson moves to strike as hearsay statements made by Kruckenberg
and Leon Thurman’s statements that John Kaburick did not want any more female
dispatchers. The Court agrees with plaintiff that these statements are not hearsay.
These employees reported to plaintiff events from a business meeting that they
attended and Kruckenberg was plaintiff’s supervisor at that time. Accordingly, the
Court denies the motion to strike (Doc. 129).
The Court now turns to address defendants’ motions for summary judgment.
Defendants maintain that plaintiff cannot establish a prima facie case of sex
discrimination. Specifically, defendants maintain that she cannot establish that she
suffered an adverse employment action or that someone similarly situated as her was
treated different. Further, defendants argue that plaintiff has offered no direct proof
of retaliation and that plaintiff was not constructively discharged. Plaintiff counters
that she has direct evidence of sex discrimination, that she can establish a prima
facie case of retaliation and constructive discharge. Plaintiff also counters that she
can establish a prima facice case of sex discrimination and direct proof of retaliation.
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Title VII of the Civil Rights Act of 1964 makes it unlawful for employers “to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's ... sex.” 42
U.S.C. § 2000e-2(a)(1). One type of sex discrimination claim involves disparate
treatment based on gender. “Proof of intentional discrimination is required” for a
disparate treatment claim. Hildebrandt v. Illinois Department of Natural Resources,
347 F.3d 1014, 1029 (7th Cir. 2003).
In Title VII disparate treatment cases and in retaliation cases, a plaintiff may
show discrimination under either the “direct” or the “indirect” method of proof.
Brown v. Illinois Department of Natural Resources, 499 F.3d 675, 681 (7th Cir.
2007); Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640 (7th Cir.
2002). The direct method of proof involves admissions by the employer, nearadmissions by the employer, and more attenuated circumstantial evidence that
“suggests discrimination through a longer chain of inferences.”
Faas v.Sears,
Roebuck & Co., 532 F.3d 633, 641 (7th Cir. 2008); Hemsworth v. Quotesmith.Com,
Inc., 476 F.3d 487, 490 (7th Cir. 2007). By contrast, the indirect method of proof
involves a “certain subset of circumstantial evidence that includes how the employer
treats similarly situated employees and conforms to the prescription of McDonnell
Douglas Corp. v. Green.” Faas, 532 F.3d at 641.4
“The rubric of the indirect method was first set forth in McDonnell Douglas Corp. v.
Green.... Under this methodology, [the plaintiff] may create a presumption of discrimination by
establishing a prima facie case of discrimination.” Atanus v. Perry, 520 F.3d 662, 672 (7th Cir.
2008)( citing Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1290 (7th Cir. 1997)).
4
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The United States Court of Appeals for the Seventh Circuit has been critical of
this nomenclature, because the phrase “direct method” erroneously implies that an
employee must proceed with direct evidence. See Faas, 532 F.3d at 641, and Luks
v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir. 2006) (the distinction
between the two avenues of proof is “vague,” and the terms “direct” and “indirect” are
themselves “somewhat misleading....”). The Seventh Circuit has explained:
“Direct” proof of discrimination is not limited to near-admissions by the
employer that its decisions were based on a proscribed criterion ( e.g.,
“You're too old to work here.”), but also includes circumstantial
evidence which suggests discrimination through a longer chain of
inferences.”... The focus of the direct method of proof thus is not
whether the evidence offered is “direct” or “circumstantial” but rather
whether the evidence “points directly” to a discriminatory reason for the
employer's action.
Atanus, 502 F.3d at 671-72, citing Luks, 467 at 1052, and quoting Sylvester v. SOS
Children's Villages Illinois, Inc., 453 F.3d 900, 902-03 (7th Cir. 2006). “Direct
evidence is evidence which, if believed by the trier of fact, will prove a particular fact
in question without reliance upon inference or presumption.” Nagle v. Village of
Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009)(quoting Rudin v. Linclon Land
Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2005)).
Under McDonnell Douglas, a plaintiff must first make out a prima facie case
of gender discrimination. Brandenburg may do so by showing: (1) she is a member
of the protected class, (2) she met her employer's legitimate expectations, (3) she
suffered an adverse employment action, and (4) her employer treated similarly
situated male employees more favorably. Peirick v. Indiana-Purdue University
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Indianapolis Athlethics Dept., 510 F.3d 681, 687 (7th Cir. 2007); Ptasznik v. St.
Joseph Hospital, 464 F.3d 691, 696 (7th Cir. 2006). If Brandenburg succeeds, then
defendants may rebut the prima facie showing by proffering a legitimate,
nondiscriminatory reason for the adverse employment action. Atanus, 520 F.3d at
672. If the defendants bear this burden of production, then the plaintiff must prove
that the defendant’s proffered reason is “‘false and only a pretext for discrimination.’”
Id. (quoting Bahl, 115 F.3dat 1290. “The main inquiry in determining pretext is
whether the reason for the [adverse employment action] was a correct business
judgment.” Id. at 674 (internal quotation marks omitted). If the plaintiff fails to rebut
the “noninvidious reason for the adverse action, [then the defendant] is entitled to
summary judgment. Otherwise there must be a trial.” Stone, 281 F.3d at 644;
accord Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th Cir. 2006) (“If [the
employer's proffered reason] is the true ground and not a pretext, the case is over.”).
Based on the briefs submitted by the parties, the Court will address
Brandenburg’s claims under the indirect method. Here, the parties do not dispute
that Brandenburg was a member of a protected class (female) or that she met her
employer's legitimate expectations. However, the parties disagree as to the other two
elements.
First, defendants argue that Brandenburg failed to establish that she suffered
an adverse employment action. Adverse employment actions include items such as
hiring, denial of promotion, reassignment to a position with significantly different job
responsibilities or an action that causes a substantial change in benefits. Herrnreiter
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v. Chicago Housing Authority, 315 F.3d 742, 744-45 (7th Cir. 2002). The Seventh
Circuit identified three categories that have emerged to describe the different types
of “discrimination” that can support a Title VII claim. The first category of cases are
those in which the employee's compensation, fringe benefits, or other financial terms
of employment are diminished, such as occurs in a termination of employment. Id.
at 744. Second are cases in which “a nominally lateral transfer with no change in
financial terms significantly reduces the employee's career prospects by preventing
him from using the skills in which he is trained and experienced, so that the skills
are likely to atrophy and his career is likely to be stunted.” Id. A variation of this
occurs when an employee is not actually transferred, but his job is nonetheless
“changed” in a way that “injures his career.” Id. The harm involved in this scenario
is a future financial harm rather than a present harm. Id. With the third type of case,
the employee is not moved to a different job or the skill requirements of her present
job are not altered, “but the conditions in which she works are changed in a way that
subjects her to a humiliating, degrading, unsafe, unhealthful, or otherwise
significantly negative alteration in her workplace environment-an alteration that can
fairly be characterized as objectively creating a hardship, the classic case being that
of the employee whose desk is moved into a closet.” Herrnreiter, 315 F.3d at 744.
Viewing the evidence in the light most favorable to Brandenburg, the Court
finds that they are questions of material fact as to whether she suffered adverse
employment actions as to pa and promotion. First, there is contradictory evidence
regarding the complaints of discrimination and the pay increase requests. Plaintiff
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testified that she told Beatty that woman were not treated fairly. She also testified that
she told Mixon about the discrimination and that Mixon told her he would relay her
concerns. She also avers that she repeatedly tried to speak with Josh Kaburick
about her concerns to no avail. Defendants maintain that plaintiff did not request a
specific amount of raise or express what she believed that she should have been paid.
Defendants also maintain that they were not aware that she made complaints about
discrimination or that she was being treated in a discriminatory manner. Further,
defendants contend that she refused to meet with Mr. Kaburick prior to leaving on
December 14, 2007. The Court concludes that a reasonable person may find that all
of the incidents combined constituted a hostile work environment and adverse
employment actions. See also Nagle, 554 F.3d at 1116 (categorizing recoverable
adverse employment actions, including those that change a work environment to
make it "humiliating ... or otherwise significantly negative").
Further, based on the record, the Court finds that there are questions of
material fact as to whether Brandenburg was not promoted to Safety Director due to
her gender. While defendants maintain that the as of June 2007 the Safety Director
position did not exist; that the position was never filled as the company made several
personnel changes and that it was not aware plaintiff was interested in the job, there
is sufficient evidence for the jury to find this may be pretext. The record contains
evidence that Brandenburg was interested in the Safety Director position, that she
was never offered the job and that other employees asked her why she did not take
the job. Further, the record reveals Brandenburg performed many of the duties of a
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the Safety Director without pay. Thus, there are questions of material fact as to why
the Safety Director position was not filled and why Brandenburg did not receive pay
for the additional work.
Next, defendants argue that Brandenburg cannot point to a similarly situated
employee. Plaintiff contends that Thompson was similarly situated.
To assess whether two employees are similarly situated, “a court must look at
all relevant factors, the number of which depends on the context of the case.” Radue
v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). “The similarly situated
inquiry is a flexible, common-sense one that asks, at bottom, whether ‘there are
enough common factors ... to allow for a meaningful comparison in order to divine
whether intentional discrimination was at play.’ “ Henry v. Jones, 507 F.3d 558, 564
(7th Cir. 2008) (quoting Barricks v. Eli Lilly and Co., 481 F.3d 556, 560 (7th Cir.
2007)). Nevertheless, substantial similarity is all that is required, rather than
complete identity. Elkhatib v. Dunkin Donuts, Inc., 493 F.3d 827, 831 (7th Cir.
2007) (citing Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir.), cert.
granted, 128 S.Ct. 30, 168 L.Ed.2d 807 (2007)).
Relevant factors include whether the employee and proffered comparable
“‘dealt with the same supervisor’” and were “‘subject to the same standards.’”
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002)(quoting
Randue, 219 F.3d at 617-18); see also Lim v. Tr. of Ind. Univ., 297 F.3d 575, 581
(7th Cir.2002) (holding male professors granted tenure before implementation of
higher publishing standards several years before female professor was a tenure
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candidate were not similarly situated to female professor); Snipes v. Ill. Dep't of
Corr., 291 F.2d 460, 463 (7th Cir.2002) (holding district court did not abuse its
discretion in concluding that plaintiff was not similarly situated to co-employees who
had different supervisors than plaintiff). Commonality of supervisors is important
because “[d]ifferent employment decisions, concerning different employees, made by
different supervisors ... sufficiently account for any disparity in treatment, thereby
preventing an inference of discrimination.” Snipes, 291 F.3d at 463 (quotation
omitted); see also Radue, 219 F.3d at 618 (explaining when “different decisionmakers are involved, two decisions are rarely similarly situated in all respects”).
Another relevant factor is whether the employee and proffered comparable held the
same or equivalent positions at the time of the challenged employment decision. See,
e.g., Patterson, 281 F.3d at 680 (holding plaintiff failed to show coworker was
similarly situated where coworker “held an entirely different position in another
division of the company”); Hoffman Dombrowski v. Arlington Int'l Racecourse, Inc.,
254 F.3d 644, 651 (7th Cir.2001) (deciding comparator was not similarly situated to
plaintiff because they did not hold the same or equivalent positions at the time of the
challenged employment decision); cf. Johnson v.. Zema Sys. Corp., 170 F.3d 734,
743-44 (7th Cir.1999) (comparing plaintiff to only other employee in same level
managerial position as plaintiff).
Here, the Court finds that are sufficient commonalities between Brandenburg
and Thompson for a jury to conclude that they are similarly situated. As the record
reveals, Thompson and plaintiff received their new duties in the new Safety and
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Recruiting Department the same day and they both reported to the same supervisor,
Beatty. Plaintiff asserts that Beatty told her that she was comparable to Thompson.
Moreover, there are disputes of fact as to Brandenburg’s supervisory capacity. While
Kaburick contends that she had no supervisory capacity, Beatty in an email to
plaintiff acknowledges her supervisory capacity. Thus, the Court cannot say that
there are no genuine issues of fact concerning whether Thompson was similarly
situated to Brandenburg.
Lastly, Defendants contend that the conditions of Brandenburg’s employment
were not so unbearable or hellish as required to establish constructive discharge.
Inter alia, defendants maintain that the email plaintiff sent to Kaburick after she quit
indicating that she would stay if she got a pay raise and the title of safety manger
establishes the opposite.
Constructive discharge occurs when a plaintiff shows that she was forced to
resign because her working conditions, from the standpoint of a reasonable
employee, had become unbearable. Fischer, 519 F.3d at 408-09 (quoting Equal
Employment Opportunity Comm'n v. Univ. of Chicago Hosps., 276 F.3d 326, 331
(7th Cir. 2002)). Constructive discharge can take two different forms. Id. at 409.
Under the first approach, the plaintiff must demonstrate a discriminatory work
environment even more egregious than the high standard for a hostile work
environment. Id. Under the second approach, when an employer acts in a manner
that communicates to a reasonable employee that she will be terminated, and then
the plaintiff resigns, the employer’s conduct may amount to a constructive discharge.
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Id. With the second approach, a constructive discharge also occurs if, based on the
employer’s actions, the handwriting was on the wall and the axe was about to fall. Id.
Here viewing the facts in the light most favorable to plaintiff, the Court finds
that there are questions of fact as to the constructive discharge issue. Based on the
evidence, the Court finds that there are disputed facts as to whether a reasonable
employee could find that Henderson Trucking had an atmosphere that favored men
over women in most aspects of employment. There is evidence to suggest that this
attitude could be found at the highest management levels of the company. Based on
the circumstances in this case, the Court finds that questions of material fact exists
as to whether a reasonable person would find the conditions Brandenburg
experienced were so unbearable that she was forced to quit. Thus, the Court denies
defendants’ motions for summary judgment on the constructive discharge claim.
Next, defendants maintain that plaintiff cannot establish her prima facie case
of retaliation in that she did not participate in a statutorily protected activity as she
did not complain about discrimination to her supervisors. Plaintiff counters that she
did inform her supervisor, Beatty, the Human Resource director, Mixon and Mike
Reagan about the discrimination she experience. Based on the record, the analysis
and the findings supra, the Court finds that there are disputes of fact regarding
Brandenburg’s complaints about discriminatory practices. Thus, the Court denies
defendants’ motion on this issue as well.
Lastly, defendants Premium Enterprises and Premium Transportation raise
the issue that there is no genuine issue of fact to dispute that neither of them were
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Brandenburg’s employer under Title VII. Brandenburg counters that defendants’
additional evidence simply demonstrates the existence of factual disputes for a jury
to decide.
In general, an employee can only bring a Title VII claim against the employee's
employer. See 42 U.S.C. § 2000e-2(a). Under Title VII, an employee is defined as “an
individual employed by an employer.” 42 U.S.C. § 2000e(f). To determine whether
a plaintiff was an employee of the defendant employer, the Seventh Circuit employs
a five-factor test based on common-law principles of agency.
Hojnacki v.
Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002) (citing Alexander v. Rush N. Shore
Med. Ctr., 101 F.3d 487, 492 (7th Cir. 1997)). The test requires courts to consider
the following factors: (1) the extent of the employer’s control and supervision over the
worker; (2) the kind of occupation and nature of skill required; (3) which party has
responsibility for the costs of operation, such as the provision of equipment and
supplies and the maintenance of the workplace; (4) the source of payment and
benefits; and (5) the duration of the job. Id. at 550. Of the five factors, the extent of
control and supervision over the worker is considered the most significant when
determining employment status. Id.
The Seventh Circuit has held that multiple entities may be considered an
employee's “employer” for the purposes of Title VII liability. Tamayo v. Blagojevich,
526 F.3d at 1088 (citing Worth v. Tyer, 276 F.3d 249, 259 (7th Cir. 2001)) (noting
that “any of the Affiliates that possibly maintained an employment relationship with
Worth may be named as a defendant under Title VII”).“ The Seventh Circuit no
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longer applies the “integrated enterprise” test in Title VII cases. Instead, the Seventh
Circuit found three ways in which certain affiliated corporate entities can be
considered proper Title VII defendants. Worth, 276 F.3d at 259. First, any of the
entities that maintained an employment relationship with the plaintiff could be
named as a defendant under Title VII. Id. (citation omitted). Second, any of the
entities found to have forfeited its limited liability could be considered a proper Title
VII defendant. Id. (citation omitted). The third way to find that affiliated corporate
entities are proper Title VII defendants is when an entity is found to have succeeded
its predecessors liability. Id. at 260 (citation omitted).
The Court previously addressed this issue in its June 2, 2010 Order (Doc. 88).
In that Order denying summary judgment, the Court found “that there are material
disputes of fact as to whether Brandenburg was employed by either of these
Defendants.” (Doc. P. 18). Specifically, the Court found:
“Premium Transportation, in its position statement, admitted that it
entered into a contract to provide Henderson with leased employees.
Throughout that contract, the parties recognize that the employees were
Premium Enterprises. Further, that contract states that Premium
Enterprises will pay its employees’ wages, provide all fringe benefits and
have the sole and exclusive control over the hiring, firing and training of
the employees that it furnishes. (Doc. 81-2, ps. 3).
In addition,
Brandenburg’s W-2's from 2006 & 2007 identify her employer as
Premium Enterprises. (Doc. 81-1, ps. 1-4). Premium Enterprises
provided Brandenburg with her personnel records. (Doc. 81-1, p. 9).
Employees Bill Beaty, Mike Thompson and Keith Kruckenburg were
hired by Henderson (like Brandenburg) and were added to Premium
Enterprises’ payroll in September 2004 and were counted as leased
employees from 2004 through 2007. (Doc. 81-5).”
(Doc. 88, pg. 18) Again, after considering Premium Enterprises and Premium
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Transportation’s additional evidence and argument on this issue, the Court finds the
that disputes of fact still remain. These defendants have not submitted anything to
change the Court’s prior determination.
V. Conclusion
Accordingly, the Court DENIES the parties’ motions for summary judgment
(Docs. 107; 115; and 117). Also, the Court DENIES Henderson Trucking’s motion
to strike (Doc. 129). Lastly, the Court SETS this matter for Final Pretrial Conference
on Friday August 26, 2011 at 10:00 a.m. The parties shall contact Magistrate Judge
Wilkerson’s chambers if an additional settlement conference would be beneficial.
IT IS SO ORDERED.
Signed this 20th day of July, 2011.
David R. Herndon
2011.07.20
14:22:39 -05'00'
Chief Judge
United States District Court
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