United States District Court, N.D. Illinois
January 12, 2004.
HELEN E, HENNING, Plaintiff, v., MAYWOOD PARK TROTTING ASSOC., INC., ASSOCIATES RACING ASSOCIATION, INC., HORSEMAN'S GUARANTEE CORP., Defendants
The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Helen Henning filed a one-count employment discrimination
complaint against Defendants Maywood Park Trotting Association, Inc.,
Associates Racing Association, Inc., and Horseman's Guarantee Corporation
of America (collectively "Defendants"), alleging retaliation under the
Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (Title VH). Defendants
have moved for summary judgment pursuant to Rule 56 of the Federal Rules
of Civil Procedure.*fn1 For the following reasons, Defendants' motion is
Before turning to the facts of this case, we find it necessary to
discuss the collective failure of all parties to follow the Local
Rules. Pursuant to Local Rule 56.1(a)(3), a party moving
for summary judgment must file a separate statement of uncontested
material facts setting forth the facts that entitle the party to judgment
as a matter of law. This statement is not optional, and a failure to file
such a statement may result in the Court denying the motion. Local R.
56.1(a). The party opposing the motion for summary judgment is required
to file a response to the statement of uncontested facts as well as any
opposing affidavits. Local R, 56.1(b). Defendants failed to file a
statement of material uncontested facts, and only filed one affidavit in
support of their motion. Plaintiff could not have filed a response to a
non-existent fact statement, but should have brought Defendants'
remissness to the attention of the Court. Additionally, Plaintiff has
failed to file any affidavits or other supporting evidence to oppose the
motion. Both parties have failed to follow this very clear Local
Rule.*fn2 Nevertheless, rather than denying the motion for summary
judgment, the Court has decided to consider it since the decision appears
to be clear. The facts as set forth below have been gleaned from the
Plaintiff's complaint and any additions and amendments to the complaint
as well as Defendants' unopposed affidavit in support of their motion,
Henning is currently a pari-mutuel clerk at the Maywood Park Race
Track,*fn3 She has been employed at the track for over seventeen years.
In May 2001, Henning filed a charge of sex and race discrimination
against Defendants with the Illinois Department of Human Rights. The IDHR
dismissed these charges on August 28, 2001.
On October 17, 2001, Henning was present at the Maywood Park Race
Track. That night, a patron named William Webster complained to the
track's security that Henning had told him that she hated "Whites" and
that she wished that terrorists would hi-jack a plane and kill more white
people. The security officer reported the situation to General Manager
Ken Kiehn. Kiehn was concerned that the remarks would scare other patrons
at the track because the remarks came so soon after the terrorists
attacks of September 11th. Kiehn was also concerned that Henning might
somehow be involved in some sort of plan to attack a crowd. Kiehn decided
that he should exclude Henning from Maywood Park until he was able to
investigate the matter further.
Henning appeared in Kiehn's offices and was told that she must leave
the premises and would not be allowed to work at Maywood Park until an
investigation into the matter had been completed. Henning claims that her
name was announced over the loudspeaker "as though she was a terrorist"
and that Kiehn told her that she was suspended until further notice. (Am.
Compl. ¶¶ 3, 4.) Kiehn claims that Henning was excluded, pursuant to
state law, from the track. She was not "suspended" from work because she
was still allowed to participate in the Horsemen's Guarantee Corporation
of America's employee pool and work as a pari-mutuel clerk for other
racing associations in the Chicago area.
Kiehn completed his investigation over the next three to four weeks.
At the end of his investigation, he concluded that Henning was no longer
a threat to the orderly conduct of racing at the track, and he withdrew
her exclusion from the track. Kiehn called Henning to his office and,
according to Henning, told her that "they would pay her for four (4)
days and she had been suspended for a month. . . ." (Am. Compl. ¶
Henning filed an EEOC charge, claiming that Defendants suspended her in
retaliation for her complaints to the IDHR. The EEOC issued a right to
sue letter to Henning on November 30, 2001. This suit followed.
A. Summary Judgment Standard
Summary judgment is appropriate only if "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.P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). When the Court rules on a motion
for summary judgment, it must view all evidence, and draw all reasonable
inferences in the light most favorable to the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When the
non-moving party bears the burden of proof on an issue, however, she may
not simply rest on the pleadings, but instead must affirmatively set
forth specific facts establishing the existence of a genuine issue of
material feet Celotex, 477 U.S. at 322-26. Summary judgment must
be granted "against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial." Id
at 322. "Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no `genuine issue
for trial,'" and summary judgment must be granted. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Under Title VII, it is "an unlawful employment practice for an employer
to discriminate against any of his employees . . . because he has made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter."
42 U.S.C. § 2000e-3(a). There are two methods for a plaintiff to defeat
summary judgment when alleging retaliation the direct evidence
approach or the McDonnell Douglas burden-shifting method as applied to
the retaliation context. Stone v. Indianapolis Pub. Utils. Div.,
281 F.3d 640, 644 (7th Cir. 2002). Henning does not meet the requirements
of the former method as she does not present any evidence that would
establish retaliation without resort to inferences from circumstantial
evidence. See id. (noting that "mere temporal proximity between
the filing of the charge of discrimination and the action alleged to have
been taken in retaliation for that filing will rarely be sufficient in
and of itself to create a triable issue").
Henning has also failed to establish that a material issue of fact
prevents this Court from granting summary judgment in Defendants' favor
under the burden-shifting method To establish a prima facie case of
retaliation under the burden-shifting approach, Henning must show that:
(1) she engaged in a statutorily protected activity; (2) she met her
employer's expectations; (3) she suffered an adverse employment action;
and (4) she was treated less favorably than any other similarly situated
employee who did not engage in such protected activity. See
Stone, 281 F.3d at 644. Even if Henning could prove all these
elements, Defendants are still entitled to summary judgment if they have
presented unrebutted evidence of a noninvidious reason for the adverse
action. See id.
Defendants do not dispute that Henning will be able to present her
prima facie case. Taking our cue from Defendants, we will assume that she
will be able to prove the first four elements of this method, and assume
that Kiehn knew of her complaints to the IDHR, and only consider the
question of whether Defendants have presented an unrebutted noninvidious
reason for excluding Henning. We find that they have presented such a
Under the Illinois Horse Racing Act, Maywood Park Race Track can
exclude any person:
whose conduct or reputation is such that his
presence on those facilities may . . . call into
question the honesty and integrity of horse racing
or wagering or interfere with the orderly conduct
of horse racing or wagering, provided, however,
that no person shall be excluded or ejected from
the facilities of any licensee solely on the
grounds of race, color, creed, national origin,
ancestry, or sex. The power to eject or exclude an
occupation licensee or other individual may be
exercised for just cause by the [facility.]
230 ILCS 5/9(e). Thus, Kiehn, the general manager, had the power
under Illinois law to exclude any person from the track,*fn4
as long as
he had just cause to suspect that the person might interfere with the
orderly business of the track. Kiehn did not have to have reasonable or
good cause to exclude Henning; rather, he merely had to have "just
cause." See Phillips v. Graham, 427 N.E.2d 550
, 554 (Ill. 1981).
Henning has failed present evidence to rebut Defendants' assertion that
she was excluded for just cause from the track. Kiehn received a report
from the track's security officers that William Webster had reported that
Henning had made a comment relating to terrorists and filling a plane
with white people and crashing it into a building. Henning does not
dispute that she
made this comment. Webster signed a statement the same day the
comment was made relating the substance of their conversation. Henning
has provided no evidence that Kiehn did not act on the basis of her
comments but rather acted to retaliate against her for filing a complaint
with the IDHR. Kiehn is responsible for the orderly conduct of the horse
racing at the track. He was concerned that comments about terrorists and
filling a plane with white people would cause disruption and disorder at
the track. His duty was to minimize this potential and exclude Henning
until the matter could be investigated.
Even if Henning disputed that she made the comment about filling a
plane with white people and crashing it into a building, she does not
contradict the fact that Webster reported that she had made the comment.
Her main argument seems to be that Webster was an acquaintance of
Henning's supervisor, and acted in concert with her.*fn5 Again, the
unrebutted evidence shows that Kiehn acted to investigate a problem that
was reported to him, regardless of whether Henning actually made the
statement or whether Webster had an ulterior motive for making the
Furthermore, although Henning does not make this argument, the Court
notes that the incident report written by a security officer at the track
labeled the incident "Defamation of a Supervisor's Character." This might
indicate that Henning was excluded for comments she made on that same day
and to Webster about her supervisor, rather than the terrorist
comments.*fn6 Even if she were excluded for this reason, however, her
remarks about her supervisor the same day she was excluded could not be
the basis for a retaliation claim as it is not a protected activity. But,
her comments about her supervisor interfered with the orderly
business of the track then this could have been just cause for excluding
her from the premises.
Henning has presented no material issue of fact for trial. Defendants
have presented a noninvidious reason for excluding her from the track and
Henning has failed to rebut this evidence. Defendants' motion for summary
judgment should be granted.
For the above reasons, we find that Defendants are entitled to summary
judgment. Plaintiff presented no evidence sufficient to create a material
issue of fact. Accordingly, this Court grants summary judgment for
Defendants Maywood Park Trotting Association, Inc., Associates Racing
Association, Inc., and Horseman's Guarantee Corporation of America.