The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Construction and General
Laborers' District and Vicinity Join Apprenticeship and Training Trust
Fund's ("Fund") motion for summary judgment and on Plaintiff Hector
Fontalvo's ("Fontalvo") motion for leave to join additional defendants.
For the reasons stated below we grant the motion for summary judgment and
deny the motion to join additional defendants as moot.
Defendant Fund operates a training center in Carol Stream, Illinois
("Training Center"). At the Training Center laborer journey workers and
apprentices employed by employers that have contracts with the labor
union are trained to better use their skills as construction workers,
them about safety on the worksite, and assist the workers in
obtaining necessary certifications. In April of 1999, Fontalvo
participated in a welding course at the Training Center. Fontalvo claims
that his instructor, John Retondo ("Retondo"), made a remark about Mexico
which Fontalvo, who has a Hispanic heritage, regarded as an ethnic slur,
Specifically Retondo allegedly commented on Fontalvo's work and told him:
"you can take that to Mexico and sell it for some pesos out there," A
Month later in May of 1999, Fontalvo took another class at the training
center which was taught by Retondo, Fontalvo and Retondo got in an
argument during class on the first day regarding Fontalvo's paperwork. A
day or so later Fontalvo went to see Anthony Solano ("Solano"), the fund
administrator, and told him of the incidents with Retondo. Solano spoke
with Retondo and asked Retondo to work out the problem. Retondo
apologized to Fontalvo and Fontalvo finished the class without any
further incidents. Several months later Fontalvo filed a charge of
discrimination with the Equal Employment Opportunity Commission, claiming
that he suffered racial harassment at the Training Center. Fontalvo
contends that he was employed by the Fund at the Training Center because
he took classes at the Training Center and he claims that he was
constructively discharged by the Fund in May of 1999 after the second
class with Retondo. Fontalvo contends that he cannot continue to take
classes at the Training Center because of the emotional distress and
humiliation that he suffers from the alleged racial harassment by
Retondo. Fontalvo has filed a two count complaint in the instant action
alleging unlawful discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
intentional infliction of emotional distress.
Summary judgment is appropriate when the record, viewed in the light
most favorable to the non-moving party, reveals that there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R, Civ. P. 56(c). In seeking a grant of
summary judgment the moving party must identify "those portions of `the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it believes
demonstrate the absence of a genuine issue of material fact." Celotex
Corp, v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). This initial burden may be satisfied by presenting specific
evidence on a particular issue or by pointing out "an absence of evidence
to support the non-moving party's case." Id. at 325. Once the
movant has met this burden, the non-moving party cannot simply rest on
the allegations in the pleadings, but, "by affidavits or as otherwise
provided for in [Rule 56], must set forth specific facts showing that
there is a genuine issue for trial." Fed.R. Civ, P. 56(e). A "genuine
issue" in the context of a motion for summary judgment is not simply a
"metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
Rather, a genuine issue of material fact exists when "the evidence is
such that a reasonable jury could return a verdict for the nonmoving
party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Insolia v. Philip Moms, Inc., 216 F.3d 596, 599 (7th
Cir. 2000). The court must consider the record as a whole, in a light
most favorable to the non-moving party, and draw all reasonable
inferences that favor the non-moving party. Anderson, 477 U.S.
at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972
(7th Cir. 2000).
On September 22, 2003, we set the briefing schedule for the instant
motion. We did so orally and by minute order, Fontalvo was given until
December 5, 2003 to respond to Defendant's motion for summary judgment.
No responsive brief has been filed to the motion for summary judgment and
no response to Defendant's Rule 56.1 statement of material facts has been
filed. The briefs are currently over a month past due. Pursuant to Local
Rule 56.1, when a party files a motion for summary judgment each party
must prepare a statement of material facts and each party is required to
respond to the opposing party's statement of material facts and either
admit or deny each fact, A denial is improper if the denial is not
accompanied by specific references to admissible evidence or at least
evidence that represents admissible evidence. Local Rule 56.1; Dent
v. Bestfoods, 2003 WL 22025008, at *1 n.l (N.D. Ill, 2003);
Malec v, Sanford, 191 F.R.D. 581, 584-85 (N.D. Ill. 2000).
Pursuant to Rule 56.1 any facts included in a party's statement of facts
that arc not properly denied by the opposing party are deemed to be
admitted. Local Rule 56.1; Dent, 2003 WL 22025008, at *1 n.l.
Therefore, since Fontalvo has failed to respond to Defendant's 56.1
statement of material facts, all of the facts therein are deemed to be
I. Title VII Employment Discrimination Claim
Title VII states that is an unlawful employment practice for "an
employer" to "discharge an individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions, or
privileges of employment because of [his] race, color, religion,
sex, or national origin. . . ." 42 U.S.C. § 2000e-2(a)(emphasis
added). Fontalvo's claim
fails because the undisputed facts indicate that Fontalvo was not
employed by the Fund, Fontalvo apparently thought that he could consider
the Fund as his employer and sue under Title VII because the students at
the Training Center receive a daily stipend to reimburse them for
expenses incurred in coming to the Training Center. (SF 10). Fontalvo
claims that someone told him that he was employed by the fund. (SF 10).
However, pursuant to Local Rule 56.1 Fontalvo admits that in 1999 the
Fund did not operate an apprenticeship program. (SF 10). He also admits
that it was an unnamed person at a Local Union that told him that he was
employed by the Fund and no Fund personnel told Fontalvo that he was
employed by the Fund, (SF 10). Fontalvo also admits that he was employed
at several companies between June 1998 and May 1999. (SF 9), Fontalvo
also expressly admits pursuant to Local Rule 56.1 that "[s]tudents at the
Training Center are not "employed" by the Fund. . . ." (SF 7). Thus,
Fontatvo presents no evidence to show that he was employed by the fund
and admits that he was not employed by the Fund. Since the Fund was not
the employer of Fontalvo, Fontalvo cannot bring his Title VII claim
against the Fund and the Fund could not constructively discharge Fontalvo
because it never employed Fontalvo to begin with.
Even if Fontalvo could show that he was employed by the Fund, his claim
fails. Fontalvo claims that because of the emotional distress and
humiliation he suffered from the alleged harassment by Relondo he could
no longer participate in the classes at the Training Center. Under Title
VII an employer is prohibited from maintaining a workplace that is
"permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive work environment," Harris v,
Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citations
omitted)(quoting Meritor Savings Bank
FSB v. Vinson, 477 U.S. 57, 65-67 (1986)), Factors
considered in determining whether there is a hostile work environment
include: 1) the "frequency of discriminatory conduct," 2) "its severity,"
3) whether conduct is "physically threatening or humiliating" or merely
offensive, 4) whether conduct "unreasonably interferes with [the
plaintiff's] work performance," and 5) the "social context in which
events occurred." Hilt-Dyson v. City of Chicago, 282 F.3d 456,
463 (7th Cir. 2002). In order to establish a constructive discharge an
employee must show that her "working conditions were so intolerable that
a reasonable person would have been compelled to resign," Simpson v.
Borg-Warner Automotive, Inc., 196 F.3d 873, 877 (7th Cir.
1999)(quoting Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir.
1996)). For a constructive discharge the working conditions must be even
worse than are necessary to constitute a hostile work environment because
in a hostile work environment the "employee is expected to remain
employed while seeking redress." Tutman v. WBBM-TV, Inc.,
209 F.3d 1044, 1050 (7th Cir. 2000)(quoting Drake v. Minnesota Mining
& Mfg, Co., 134 F.3d 878, 886 (7th Cir. 1998)).
Fontalvo only alleges two altercations between himself and Retondo.
Thus, the alleged harassment was not frequent. After the second incident
on the first day of class Fontalvo admits that there were no other
altercations between him and Retondo for the remainder of the class. It
was not as though each day he came in to the Training Center for class he
faced harassment by Retondo. The comment in the first incident and the
altercation in the second incident were not particularly severe. There
was no physical threats or contact involved and the classes were both
successfully completed by Fontalvo. Also, any embarrassment or bad
feelings would have been somewhat alleviated by the fact that Retondo
apologized to Fontalvo after the second incident and gave Fontalvo a
cigar as a peace offering after the First incident. Also, there is no
that the second incident was in any way related to Fontalvo's
national origin. It was simply a disagreement between a student and
teacher about paperwork. Perhaps there are bad feelings between Fontalvo
and Retondo but that is insufficient to support a Title VII racial
harassment claim. It is not reasonable to conclude that the alleged
altercations affected Retondo's performance in the classes.
Finally, Retondo claims that he was constructively discharged by the
Training Center. He states that he cannot attend classes at the Training
Center anymore "until this matter comes to rest." That is his choice.
However, based on the evidence, the conditions arc clearly not so
intolerable that a reasonable person would be unable to continue to
attend classes. We note also that there is no indication that Retondo
taught all the classes at the Training Center and thus Retondo offers no
explanation at all as to why he cannot continue to take courses before
other instructors, Thus, Fontalvo has clearly failed to show that ...