OVIEDO-ALVARENGA v. CAITO FOODS SERVICE INC.

Filing 69

ORDER - ADOPTING REPORT AND RECOMMENDATIONS for 60 Report and Recommendations, 37 Motion for Summary Judgment ; Plaintiff's and Defendant's objections to the Magistrate Judge's Report and Recommendation are all OVERRULED. We adopt the recommendations set forth in the Report and Recommendation. Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, allowing Plaintiff Oviedo's retaliation claim to proceed to trial. Signed by Judge Sarah Evans Barker on 11/9/2017.(CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARIA T. OVIEDO-ALVARENGA,

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Plaintiff,
vs.
CAITO FOODS SERVICE INC.,
Defendant.

No. 1:16-cv-00815-SEB-MJD

ORDER ADOPTING AND AFFIRMING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN
PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Maria T. Oviedo-Alvarenga (“Oviedo”) has brought this action against
her former employer, Caito Food Service (“Caito”),1 alleging that it discriminated against
her because of her gender and retaliated against her for raising the issue of harassment by
another Caito employee, all in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”). Caito filed a Motion for Summary Judgment [Dkt. No. 37] on March 23,
2017. This case was referred to Magistrate Judge Mark Dinsmore for a report and
recommendation. It is now before the Court on the parties’ objections to the Magistrate
Judge’s Report and Recommendation (“R&R”) [Dkt. No. 60]. For the reasons detailed in
this entry, we ADOPT the Magistrate Judge’s recommendation to GRANT IN PART and
DENY IN PART Defendant Caito’s Motion for Summary Judgment.

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The company is now known as CFS Family Holdings, Inc.
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Factual and Procedural Background
On April 13, 2016, Oviedo filed her Complaint in this court after receiving her
right to sue notice from the Equal Employment Opportunity Commission (Dkt. No. 1).
The Complaint alleges that, throughout her employment, she (along with other female coworkers) were harassed by Operations Director Dan Correll (“Correll”) based on to her
female gender; for example, on three occasions Correll “pointed at [her] chest, touched
her chin, flipped her hair, and called her an “asshole.” Dkt. No. 23 (Compl.) at 2. In
support of her gender discrimination claim, Oviedo asserts that shortly after she reported
this harassment to Carrie Frizzell (“Frizzell”), Vice President of Caito’s Human
Resources Department, Correll called her and two co-workers to his office and demanded
to know “who spoke to HR.” Id. at 3. Further, Oviedo says, the next day he told her that
“he would need a tissue box because he was going to make a lot of people cry.” Id.
Oviedo contends that although her direct supervisor, Dan Gatto (“Gatto”), gave her a
positive performance review, Correll “continued to intimidate [her], give [her] additional
duties, criticize [her] for tasks that were outside of her control, and give men preferential
treatment.” Id. at 3. On July 7, 2015, Frizzell and Gatto met with Oviedo and told her that
“she was being terminated because she did not accomplish projects on time.” Id. Oviedo
“believes that she was terminated in retaliation for complaining about workplace
harassment in violation of Title VII and that this vague and alleged reason was merely a
pretext for discrimination and retaliation.” Id.
Caito filed its summary judgment motion on March 23, 2017. Dkt. No. 37. On
April 26, 2017, the motion (along with Oviedo’s response) were referred to Magistrate
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Judge Dinsmore for issuance of proposed rulings and a recommended disposition. Dkt.
No. 43.
On August 8, 2017, Magistrate Judge Dinsmore issued his Report and
Recommendation (“R&R”), recommending that the court grant Caito’s summary
judgment motion as to Oviedo’s hostile work environment and gender discrimination
claims and deny Caito’s motion with respect to Oviedo’s retaliation claim, which should
be allowed to proceed to trial. Dkt. No. 60 (R&R). Regarding Oviedo’s claim that she
was harassed and subjected to a hostile work environment on the basis of her gender, the
Magistrate Judge found, after setting forth the applicable legal framework, that “[n]o
reasonable juror could find Correll’s conduct objectively severe and pervasive as that
term is understood.” Id. at 16. Noting that while Correll’s act of gesturing at Oviedo’s
chest, his flipping her hair, massaging the shoulders of Oviedo’s assistant, and using
crude language were “inappropriate and undignified,” they did not amount to
“employment-changing behavior”—particularly when Correll stopped such behavior
each time Oviedo asked him to. Id.
Turning to Oviedo’s discrimination claim, the Magistrate Judge found that, based
on the record before the court, no reasonable juror could find that Oviedo was terminated
on the basis of her gender. Caito has asserted that it terminated Oviedo for her failure to
follow through with assignments and her poor communication with management and

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companies staffing Caito’s temporary workers, which reasons the Magistrate Judge
credited.2 Id. at 18-22.
Finally, the Magistrate Judge concluded that Oviedo has presented sufficient
evidence to warrant a jury determination on her retaliation claim. Id. at 21-26.
Specifically, Magistrate Judge Dinsmore found that that there was a genuine issue of
material fact as to each of the following issues:
 whether Oviedo engaged in statutorily protected activity by complaining to Frizzell
about Correll’s harassment;
 whether a reasonable juror could find that the reassignment of assistant Munoz to
another manager, which led to increased criticism of Oviedo for her failure to timely
follow through and communicate with others and which ultimately led to Oviedo’s
termination, amounted to a such a change that it would dissuade an employee from
protected activity;
 whether there was a causal connection between Oviedo’s complaint to Frizzell and
Munoz’s reassignment.
R&R at 21-26. On this third point, the Magistrate Judge found that the following facts
gave rise to a reasonable inference of causation:
 Frizzell spoke with Gatto and Correll’s boss regarding Oviedo’s complaints, though
Frizzell did not “name names.”
 Just a few days after Oviedo’s complaints, Correll rounded up Oviedo and two other
Caito managers and demanded to know who complained to human resources.
 Around the same time as Correll’s questioning, he told Oviedo that he would need
boxes of tissues because he was going to make people cry.
 Briefly thereafter, Correll notified Oviedo that Munoz would be reassigned to work
with another manager.
Id. at 25. Magistrate Judge Dinsmore rejected Caito’s argument that it had presented
admissible evidence to show that Correll had no knowledge of Oviedo’s report of

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Oviedo does not challenge (and Caito, of course, agrees with) this finding in the R&R,
so we need not address it further.
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harassment to Frizzell and, accordingly, could not have retaliated against Oviedo for
making such a complaint. Caito’s evidence consisted of a note written by Frizzell stating
that the decision to reassign Munoz was made a month prior to Oviedo’s complaint to
Frizzell about Correll’s behavior. Caito also argued that an inference that Correll knew
about Oviedo’s complaint is unreasonable because Frizzell testified she did not tell
Correll, which assertion she also corroborated. Id. at 24-25. Notwithstanding this
testimony, the Magistrate Judge found that a reasonable jury, in evaluating these facts,
could conclude that Correll did know about the complaint which gave rise to his
retaliatory towards Oviedo. A trial is therefore necessary to resolve these factual and
causation issues. Id. at 25-26. The Magistrate Judge also concluded that a jury trial was
necessary to resolve the issue of whether Oviedo’s evidence successfully links Munoz’s
reassignment to Oviedo’s work performance issues that eventually led to her termination.
Id. at 26, n.8.
On August 23, 2017, Caito and Oviedo each filed their respective objections to the
R&R. Dkt. Nos. 64 and 65. On September 6, 2017, Caito and Oviedo responded to each
other’s objections. Docket Nos. 66 and 67, respectively. The objections are now fully
developed and ripe for ruling.
Standard of Review
A district court reviews de novo any portion of a magistrate judge’s report and
recommendation to which written objections have been made. See Fed. Rule Civ. P.
72(b). “The district judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate judge with
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instructions.” Id. When no objection is made to a portion of the report, the district judge
subjects that portion of the report to a clear error review. Id. When performing such a
review, “the court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Id. See Schur v. L.A. Weight Loss Ctrs.,
Inc., 577 F.3d 752, 759–761 (7th Cir. 2009). We address below only the issues regarding
which objections have been interposed, finding “no clear error” with regard to the
Magistrate Judge’s findings in all other respects.
Discussion
I.

Oviedo’s Objections
A. Objection #1—Alleged Factual Misstatements
Oviedo contends that the Magistrate Judge’s R&R contains “three misstatements

of fact.” Pl.’s Obj. at 3-4. It cites to her deposition as opposed to her declaration in
discussing Caito’s allegation about her handling of gate cards issued to former contract
employees. Id. at 3. This is at most an insignificant discrepancy since the Magistrate
Judge explicitly stated that he accepted in his R&R Oviedo’s version of this event,
crediting her explanation that her duties did not include responsibility for collecting the
gate cards of terminated employees. R&R at 13. Oviedo herself recognizes that this
misstatement “was simply an oversight.” Pl.’s Obj. at 3. Thus, we find no factual error
requiring correction.
Second, Oviedo explains that a portion of the following sentence in the R&R
contains a factual inaccuracy:

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On June 30, Frizzle created two “Record of Occurrence”
incident report forms due to Ms. Oviedo’s performance issues.
One dealt with Ms. Oviedo’s delay in filling the CSR position
[discussed fully in the facts section of the R&R], the other
addressed Ms. Oviedo’s delay in completing the SOP [also fully
discussed in the R&R]. Both had a “Date of Incident” of June 24.
Neither was shown to Ms. Oviedo.
Pl.’s Obj. at 3. In fact, Oviedo says, the first “Record of Occurrence” had to do with
Oviedo’s alleged delay in posting for a QA Tech on a Careers in Food job board, and not
the CRS position. Id. As Caito points out, however, this distinction is immaterial (Def.’s
Obj. at 2), since its relevance extends only to Oviedo’s claim that she was terminated on
the basis of her gender, which issue was resolved against her by the Magistrate Judge,
who determined, based on the undisputed evidence of record, that Oviedo’s supervisor,
Gatto, had made the termination decision based on her failure to perform her work in a
satisfactory fashion. R&R at 10, 12, 18, and 21. Oviedo has not objected to this ruling.
Pl.’s Obj. at 7-14. This factual discrepancy is neither significant nor material.
Oviedo’s final factual disagreement is with the statement in the R&R [p. 14] that
“Correll did not recommend Ms. Oviedo’s termination nor was involved in Gatto’s
termination decision.” According to Oviedo, Correll “provided the precise factual
information that cause Ms. Oviedo’s termination.” Pl.’s Obj. at 4 (citing Frizzell Dep. at
58-59). Oviedo maintains that Correll’s June 30, 2015 phone call led to Caito’s decision
to terminate her. Id. (citing Gatto Dep. at 44-46).
Again, this issue relates only to Oviedo’s sex discrimination claim, the summary
dismissal of which Oviedo does not challenge. In any event, we agree with Caito that this
objection is both factually and legally inaccurate. Def.’s Obj. at 3 (citing Woods v. City of
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Berwyn, 803 F.3d 865, 870 (7th Cir. 2015) (rejecting a claim that an employee who
reported concerns implicating a coworker influenced a subsequent termination decision).
The Magistrate Judge determined that the undisputed evidence showed that Gatto decided
to terminate Oviedo after receiving complaints from various Caito employees, including
Frizzell, all of whom were sources of information regarding Oviedo’s poor followthrough and unresponsiveness to work emails. R&R at 18. To the extent this objection by
Oviedo relates to her retaliation claim and is thus relevant and persuasive, we leave for
determination on another day. The Magistrate Judge properly noted that the factfinder at
trial will be required to decide whether the reassignment of Munoz is causally linked to
Oviedo’s work performance deficiencies that ultimately led to her termination. R&R at
26, n.8.
B. Objection #2—Alleged Omitted Material Facts
Oviedo’s second objection to the R&R focuses on the alleged omission of “many
material facts which should have been considered” (Pl.’s Obj. at 5-7). Specifically,
Oviedo references her Declaration [Docket No. 55-1], arguing that those averments along
with other material facts set out in her opposing brief in response to the summary
judgment motion should have been considered by the Magistrate Judge and in the light
most favorable to her. Id. at 5. All of these allegedly “omitted facts” have to do with the
June 2015 events involving the terminations by Caito of several temporary workers who
had not returned their gate cards, for which failure Correll faulted Oviedo. Oviedo
contends that she in fact properly performed her only responsibility in this instance by
notifying the staffing agency that provided the temporary workers, that she was not
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responsible for collecting gate cards from any of the former workers, and that the staffing
agency who had employed these workers (the Morales Group) ultimately accepted
responsibility for the employees’ unauthorized returns to Caito’s premises after their
terminations.
We note that the gist of each of these facts is included in the R&R. Though the
R&R does not reference each individual fact asserted by Oviedo, it clearly addresses
Oviedo’s overall argument. In her objection, Oviedo merely notes the name of the Caito
employee assigned to collect gate cards issued to terminated temporary employees
(Amanda Fults), stating that, to do so, Fults used a computer program to which Oviedo
did not have access. These details, however, are entirely superfluous, adding nothing
substantive to the analysis explicated in the R&R. Oviedo also includes in her objection
the email correspondence from employees of the Morales Group, ostensibly to
demonstrate their failure to communicate with their own employees, which according to
Oviedo, explains the unauthorized use of their gate cards to enter Caito premises
following their terminations. As noted in the R&R and referenced previously in this
entry, the Morales Group has accepted responsibility for this error. Oviedo stresses that
she was unaware that Caito had in fact faulted her for her handling of this incident prior
to the commencement of this litigation, but, as the R&R acknowledges, Caito’s criticism
of her was irrelevant because this incident was not cited in its EEOC response.
Thus, we hold that none of these supplemental facts impacts the analysis of
Oviedo’s claim, or warrants revision of the R&R, and we overrule Objection #2.

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C. Objection #3—Alleged Reliance on the Incorrect Legal Standard and
Erroneous Conclusion that the Harassment Suffered by Oviedo Was not
Severe or Pervasive
Oviedo contends that the Magistrate Judge applied the incorrect legal standard in
ruling on her hostile work environment claim. Pl.’s Obj. at 7-10. The Magistrate Judge
properly held that a plaintiff must satisfy the following elements to prevail on an
harassment, or hostile work environment, claim: (1) she endured unwelcome sexual
harassment; (2) she was harassed because of her sex; (3) the harassment was so severe or
pervasive that it altered the conditions of employment and created a hostile work
environment; and (4) there is a basis for employer liability. R&R at 15 (citing Niscahn v.
Stratosphere Quality LLC, 865 F.3d 922, 929 (7th Cir. 2017); Turner v. the Saloon, Ltd.,
595 F.3d 679, 684 (7th Cir. 2010)).
The Magistrate Judge further ruled, in determining whether a working
environment is hostile in this context, courts consider factors including Afrequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee=s
work performance.@ Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463 (7th Cir. 2002),
cert. denied, 537 U.S. 820 (2002) (internal quotation omitted). Conduct that is merely
unpleasant, but not severe or pervasive, will not constitute a hostile work environment
prohibited by Title VII. See Saxton v. American Telephone and Telegraph Co., 10 F.3d
526, 533 (7th Cir. 1993).

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Oviedo’s objection is based on the Magistrate Judge’s use of the phase “severe
and pervasive,” rather than “severe or pervasive.” This phrase appears in the R&R
following a prior reference which Oviedo concedes to be correct. R&R at 15-16 (“a
reasonable jury could not find Correll’s conduct “objectively severe and pervasive as that
term is understood.”). Our analysis of this objection does not turn on so trivial a
difference as Oviedo seeks. The Magistrate Judge correctly explained that whether
harassment rises to an actionable level depends on the totality of the circumstances based
on such factors as “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” R&R at 15 (citing Worth
v. Tyler, 276 F.3e 249, 267 (7th Cir. 2001)). Citing Seventh Circuit case law, he noted
that limited contact with non-intimate areas of a person’s body does not by itself create a
hostile environment. Id. at 16 (listing cases). This legal analysis is without error;
Oviedo’s objection is nothing more than an inconsequential nitpick. Accordingly, we
overrule this objection.
Oviedo has also failed to establish that the Magistrate Judge erred in analyzing her
hostile work environment claim. As noted above, the Magistrate Judge relied on the third
element of claim, the severity or pervasiveness of the harassment, as dispositive here.
R&R at 16. He correctly outlined the factual basis of her claim:
 On three different occasions, he put his finger close to Ms. Oviedo’s chest in what
was, as he put it, a “made you look” action.
 On about two other occasions, Correll called Oviedo and Munoz “assholes.” The first
time, he walked into Oviedo’s office and said, “Hey, assholes.” When Oviedo and
Munoz ignored him, he wrote “Hey, how are you, assholes?” on a whiteboard in the
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office. Oviedo again ignored him, and he erased the sentence. Oviedo explained that
she heard Correll refer to both men and women as “assholes,” but she never heard him
say this directly to a male employee. On different occasions, Correll referred to
Caito’s human resources team as “HR bitches.”
 Once Correll “flipped” Oviedo’s hair, and she told Correll that she did not like his
touching her hair, after which he did not repeat it.
 Correll massaged Munoz’s shoulders, which allegedly made Munoz as well as Oviedo
uncomfortable.
R&R at 2-5.
Acknowledging that Correll’s conduct was “inappropriate and undignified,” the
Magistrate Judge nonetheless correctly determined that the finger gesture, the touching of
Oviedo’s hair, the massage of Munoz’s shoulders, and the crude language “simply are not
the stuff of employment-changing behavior.” Id. at 16. That Correll ceased the offensive
behavior every time Oviedo asked him to do so buttressed this conclusion. Id.
Oviedo argues that “Correll’s use of the sexually-charged term ‘bitch’ was itself
severe,” which verbal abuse exacerbated the harassment she received. Pl.’s Obj. at 8-9
(citing Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)).
Oviedo again invokes the decision in Passananti v. Cook Cty., 698 F.3d 655, 668-89 (7th
Cir. 2012) as she did in her summary judgment motion in arguing that the Seventh Circuit
“sees no reason to treat gender based harassment claims any differently than racial
harassment claims with racially-charged words.” Correll’s use of the words “bitches” and
“assholes” along with writing the word “asshole” on the white board in Oviedo’s office,
she contends, would permit a reasonable jury to find that she was subjected to a hostile
work environment. Caito, of course, disagrees.
Oviedo has not identified any error in the R&R based on a misunderstanding or
erroneous application of the holdings of these cases by the Magistrate Judge. Context
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matters, Oviedo concedes, and she has not succeeded in showing that the relevant
caselaw dictates a contrary result. Passananti’s holding is easily distinguishable because
there the supervisor “repeatedly and angrily called [the plaintiff] a bitch to her face and in
front of their coworkers,” and frequently and with hostility called her “stupid bitch,”
fucking bitch,” and lying bitch.” Passananti, 689 F.3d at 658. The Magistrate Judge’s
findings reflect and the undisputed evidence established that Correll did not direct his
vulgar language specifically at Oviedo or use it in way to target solely women; in fact,
Correll apparently admitted that at least some of his untoward language did target men.
See Passananti, 689 F.3d at 665.
Oviedo asserts that Correll, if not technically her supervisor, was effectively her
supervisor. This characterization allows her to invoke the benefit of court decisions that
treat harassing conduct as more severe when meted out by a supervisor. According to
Oviedo, Correll acted as her supervisor by assigning projects to her and approving her
vacation time. Caito does not dispute that Correll interacted with Oviedo on certain
projects, but vigorously asserts that it was Gatto, not Correll, who was in fact Oviedo’s
supervisor. Def.’s Resp. at 8-10; Vance v. Ball State Univ., 133 S.Ct. 2434, 2448 (2013)
(“the ability to direct another employee’s tasks is simply not sufficient” to establish
supervisory status). We agree that Oviedo’s contention is incorrect both legally and
factually, which issue is discussed supra in conjunction with Oviedo’s first objection. See
R&R at 2 (noting that Oviedo reported to Gatto and Frizzell). This objection fails because
Oviedo’s attempt to portray Correll as her supervisor falls short of the required mark.

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D. Objection #4—Retaliation Claim Improperly Confined to Munoz’s
Reassignment as Opposed to Oviedo’s Termination
Oviedo’s final objection to the R&R is based on the Magistrate Judge’s reliance
on the reassignment of Munoz, as opposed to Oviedo’s employment termination, as the
“materially adverse action” element of her retaliation claim. Pl.’s Obj. at 10-14; R&R at
24. Oviedo argues that it was Correll who caused each of the alleged performance
deficiencies that Caito has cited as reasons for Oviedo’s termination, and that his June 25,
2015 phone call to Gatto and Frizzell about the terminated temporary workers’
unauthorized entry on Caito premises was the specific cause of her termination. Pl.’s Obj.
at 10-11. Oviedo characterizes Correll’s alleged influence as the “cat’s paw” causing her
termination. Id. at 11.
As Caito notes, Oviedo did not argue “cat’s paw” liability at the summary
judgment briefing stage. Def.’s Resp. at 11-14; see Docket No. 44. “Cat’s paw” liability
has been specifically invoked for the first time in Oviedo’s objections. Thus, the theory
was not specifically addressed by the Magistrate Judge in ruling on the summary
judgment motion. Having failed to raise it initially, the issue cannot be deemed a matter
properly reserved for review in the context of objections to the Magistrate Judge’s R&R.
Def.’s Resp. at 11-14. We therefore deem this issue waived. Salas v. Wis. Dep’t of
Correction, 493 F.3d 913, 924 (7th Cir. 2007) (“a party forfeits any argument it fails to
raise in a brief opposing summary judgment.”). In her response to Caito’s objections,
Oviedo does not argue otherwise. Pl.’s Resp. at 1-7. We find, therefore, no error in the
R&R on this basis and affirm this determination.
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In any event, Oviedo’s objection does not accurately reflect the Magistrate Judge’s
finding on the issue of the “materially adverse action element” in her retaliation claim.
The Magistrate Judge found that a reasonable jury could evaluate the factual scenario
here, all of which events occurred in rapid succession—Oviedo’s harassment report;
Frizzell’s discussion with Correll’s boss about Oviedo’s complaints; Correll’s quizzing
Oviedo and others about who complained to human resources; Correll’s comment that he
needed tissue boxes because he would make people cry; and Correll’s transfer of Munoz
shortly or immediately thereafter—and find a retaliatory intent on Correll’s part. R&R at
24-25. The Magistrate Judge did not ignore any aspect of Oviedo’s claim, simply
recognizing instead recognized that an increase in workload is not legally significant for
purposes of conducting the retaliation analysis in the absence of discipline for failure to
complete work. R&R at 24 (citing Lapka v. Chertoff, 517 F.3d 975, 986 (7th Cir. 2008)).
The Magistrate Judge further recognized that Oviedo received the ultimate discipline—
termination—for her failure to complete work, and held that a jury trial is required to
resolve the parties’ factual disputes surrounding Oviedo’s retaliation claim. For these
reasons, we again overrule Oviedo’s objection.
II.

Caito’s Objections

A. Objection #1—Alleged Erroneous Finding of a Causal Connection Between
Oviedo’s Complaint and Munoz’s Reassignment
Caito objects to the Magistrate Judge’s finding that Oviedo presented sufficient
evidence of a causal connection between her complaint to Frizzell and the reassignment
of Munoz to survive summary judgment on her retaliation claim. Def.’s Obj. at 17-19, 23.
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Having considered the parties’ arguments on this issue, the Magistrate Judge noted both
Oviedo’s testimony that Correll reassigned Munoz following Oviedo’s discussion with
Frizzell as well as Caito’s “disagreement” with Oviedo’s timeline. R&R at 25.
Marshalling the following facts, the Magistrate Judge found that a reasonable jury could
infer causation:
 Although she “did not name names,” Frizzell spoke with Gatto and Correll’s boss
about Oviedo’s complaints [Docket No. 45-2 (“Frizzell Dep.”) at 39]
 Shortly after Oviedo made her complaint, Correll summoned her and two other
managers and asked who complained to HR;
 Around the same time, Correll told Oviedo that he would need a box of tissues
because he was going to make people cry;
 Immediately after these incidents, Correll transferred Munoz so that she was no
longer available to assist Oviedo.
R&R at 25.
Caito maintains that the evidence referenced in its summary judgment motion
shows that the decision to reassign Munoz from Oviedo to another Caito employee was
made prior to Oviedo’s May 14, 2015 complaint to Frizzell. In support, Caito again
relies—as it did before the Magistrate Judge—primarily on handwritten notes by Frizzell
dated April 15 and 16, 2015, relating to Munoz’s reassignment. R&R at 8, n. 3; 24-26.
According to Caito, Frizzell’s notes negate any inference of a causal connection between
Oviedo’s complaint and Munoz’s reassignment.
However, the Magistrate Judge did not regard these notes as fully dispositive on
this issue. R&R at 8, n. 3. Specifically, the notes themselves are unclear as to whether
they concern the decision to reassign Munoz, the date of her actual reassignment, or even
whether a decision had even been made. Frizzell Dep. Ex. 26 (“4/15/15 move Amada
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[Munoz] to Marcos . . . she may need help . . .4/16/15 we discussed move . . .we think it
is a good idea . . help Amada + Maria”). While Caito insists that the notes support its
version of the reassignment timeline, Oviedo has testified that Munoz was reassigned by
Correll after her May 2015 complaint, which rebuts Caito’s version of the events. We
share the Magistrate Judge’s view that the parties’ factual disputes concerning this issue
warrant a trial determination of whether or not Munoz was reassigned in retaliation for
Oviedo’s complaint against Correll. R&R at 8, n. 3; 24-26; See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) (well-settled law establishes that a court’s role
under Rule 56 is limited to determining, as a threshold matter, whether a genuine dispute
exists as to material facts.); Williams v. Office of Chief Judge of Cook Cty., 839 F.3d 617,
626 (7t h Cir. 2016) (citing Ortiz v. Werner Enters., Inc., 834 F.3d 760, 763 (7th Cir.
2016) (noting no distinction between direct or indirect evidence of causation and holding
that a court must simply inquire whether a reasonable factfinder could conclude that a
plaintiff's protected activity caused the adverse employment action).
Alternatively, Caito argues, even if Oviedo succeeds in establishing that her
complaint to Frizzell about Correll preceded Munoz’s reassignment, Correll could not
have engaged in retaliatory conduct because the evidence reflects that he had no actual
knowledge of Oviedo’s complaint. Def.’s Obj. at 19-23. This argument is based on
Correll’s testimony that no one conveyed Oviedo’s complaints to him, and Frizzell’s
testimony that she never spoke to Correll about Oviedo’s complaint, having raised the
issue only to Correll’s boss “without naming any names.” Id. at 19-20. The Magistrate
Judge’s take on that sequence—Correll’s quizzing Oviedo and other managers about a
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human resources complaint and his comments to Oviedo— was that it suggests that
Correll knew about the complaint and that Oviedo (or one of the others) was the source of
it. Given the competing inferences arising from these events, Caito cannot succeed in its
effort to establish the Magistrate Judge’s finding as error, when he determined that a trial
is necessary to resolve these issues. See Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (as
long as more than one reasonable inference can be drawn, and one such inference creates
a genuine dispute of material fact, summary judgment on that ground is inappropriate;
instead, the trier of fact is entitled to decide which inference to believe).
B. Objection #2—Alleged Erroneous Finding on the Impact of Munoz’s
Reassignment
Caito next asserts that the R&R’s factual linkage between Oviedo’s termination
and her loss of Munoz’s assistance is erroneous, the result of which transformed a nonmaterial adverse action into a “significant” one. Def.’s Obj. at 23-34. Relatedly, Caito
challenges the Magistrate Judge’s conclusion that Oviedo’s ability to connect Munoz’s
reassignment to Oviedo’s poor work performance which led to her termination is a
factual issue to be resolved at trial. Id. at 26-29.
In support, Caito highlights its proffered reasons for terminating Oviedo, noting
that she has offered no factual evidence linking the increase in her workload to the loss of
Munoz’s assistance, or establishing a tie between Munoz’s reassignment and a retaliatory
motive on Caito’s part that worked against her. Id. at 24-26, 30-34. Caito acknowledges
that the Magistrate Judge correctly analyzed the legal elements of a retaliation claim, but
attempts to distinguish on factual grounds the case law on which he relied in an effort to
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show that it does not support a recommendation that Oviedo’s retaliation claim be
decided by a jury. Id. at 23, 26-29. At most, Caito’s arguments merely challenge the
finding of sufficiency of the evidence by the Magistrate Judge as adduced by Oviedo
allowing this issue to survive for trial. Faced with these factual disputes, the Magistrate
Judge did not err in recommending that these issues be presented for resolution to a jury,
and we accordingly overrule Caito’s second objection.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s and Defendant’s objections to the Magistrate

Judge’s Report and Recommendation are all OVERRULED. We adopt the
recommendations set forth in the Report and Recommendation. Defendant’s Motion for
Summary Judgment is GRANTED IN PART and DENIED IN PART, allowing Plaintiff
Oviedo’s retaliation claim to proceed to trial.
IT IS SO ORDERED.
Date: 11/9/2017
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Distribution:
Brian Burbrink
Jan Michelsen
OGLETREE DEAKINS NASH SMOAK & STEWART, PC
[e-mail]
[e-mail]
Quincy E. Sauer
MACEY SWANSON, LLP
[e-mail]

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