United States District Court, N.D. Illinois
March 16, 2004.
MARY ESPINOSA, Plaintiff
GENERAL MOTORS CORPORATION MARCUS WARD, and COURTNEY PARROT, Defendants
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants' motion for summary
judgment. For the reasons stated below we grant the motion for summary
Plaintiff Mary Espinosa ("Espinosa"), a Caucasian woman, was employed
by Defendant General Motors Corporation ("GM") as a temporary worker at
GM's Electro-Motive Division in LaGrange, Illinois from August 4, 1997 to
May 2, 2003. In November of 2001 Espinosa was transferred to Department
2180 and was selected
to operate a stacker machine. Defendant Marcus Ward ("Marcus"), an
African-American man, acted as Espinosa's supervisor from January of 2002
to May of 2002. In early January of 2002 Ward verbally counseled Espinosa
for not meeting expected production rates and on January 15, 23, and 28
of 2002 Espinosa received written reprimands for failing to meet the
expected production rate. Espinosa filed grievances regarding the written
reprimands and, as part of a settlement with the union, the reprimands
were stricken from her record and Espinosa was given two additional weeks
of training on the stacker machine. On March 15, 2002 Espinosa called the
GM toll-free number for reporting employee misconduct and complained that
Ward routinely followed her to the bathroom, reprimanded her, and refused
to give her overtime. On April 17, 2002 Espinosa took a personal day
without giving the required two days notice and she received a written
reprimand. On May 14, 2002 Espinosa claimed that she saw rats in her work
area. She visited GM's medical department and although the department did
not give her clearance to leave the plant, she left without permission
and received a written reprimand. As part of a settlement with the union,
the reprimand was stricken and she was given three hours pay. On May 13,
2002 Espinosa received a written reprimand for careless workmanship. In
June of 2002 the lights in Espinosa's work area were turned off, but were
turned back on when Espinosa complained. Espinosa operated the stacker
machine until July of 2002 when she was transferred to another
Espinosa claims that she sprained her ankle in April of 2003 and was
unable to work. On April 22, 2003 GM sent Espinosa a letter informing her
that if she did not report to work within five days that she would lose
her seniority in accordance with an agreement between GM and her union.
Espinosa furnished a doctor's excuse that excused her absence until May
1, 2003, but when she failed to report to work on May 2, 2003, she was
notified that her seniority was broken. Espinosa claims that her May 1,
2003 doctor's appointment was cancelled and that her doctor extended her
authorized leave until May 5, 2003. She admits, however, that she did not
give GM notice of the extension. GM terminated Espinosa's employment on
May 5, 2003. Espinosa brought the instant action alleging that Defendants
discriminated against her because of her gender and because of her race,
and maintained a hostile work environment in violation of Title VII of
the Civil Rights Act of 1964 ("Title VII"). 42 U.S.C. § 2000e et
seq. Espinosa also brings an intentional infliction of emotional
distress ("TIED") claim.
Summary judgment is appropriate when the record 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 or the denials 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. 4Civ. 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 Morris, 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 parry. Anderson, 477 U.S.
at 255; Bay v. Cassens Transport
Co., 212 F.3d 969, 972 (7th Cir. 2000).
I. Local Rule 56.1
The courts are not "obliged in our adversary system to scour the record
looking for factual disputes and may adopt local rules reasonably
designed to streamline the resolution of summary judgment motions."
Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.
1994). In the Northern District of Illinois, parties must comply with
Local Rule 56.1. Compliance requires "a statement of material facts as to
which the moving party contends there is no genuine issue and that
entitle the moving party to a judgment as a matter of law." Local
Rule 56.1(a)(3). The statement of material facts is comprised of "short
numbered paragraphs, including within each paragraph specific references
to the affidavits, parts of the record, and other supporting materials
relied upon to support the facts set forth in that paragraph." Local
Rule 56.1(a). The non-movant is correspondingly obligated to submit, "a
response to each numbered paragraph in the moving party's statement,
including, hi the case of any disagreement, specific references to the
affidavits, parts of the record, and other supporting materials relied
upon. . . ." Local Rule 56.1(b)(3)(A), The non-moving party is also
required to file a material statement of
additional facts and the moving party is required to respond in a
likewise fashion. Local Rule 56.1(a) & (b)(3)(B). The court will
deem any fact admitted in the opponent's statement of facts unless the
fact is properly denied by the opposing party. Local Rule 56.1(a) &
A denial is improper if the denial is not accompanied by specific
references to admissible evidence or at least evidence that represents
admissible evidence. Dent v. Bestfoods, 2003 WL 22025008, at *1
n. 1 (N.D. Ill. 2003); Malec v. Sanford 191 F.R.D. 581, 585
(N.D. Ill. 2000). Pursuant to Rule 56.1 any facts included in a party's
statement of facts that are not properly denied by the opposing party are
deemed to be admitted. Local Rule 56.1; Dent, 2003 WL 22025008,
at *1 n.1. See also Jankovich v. Exelon Corp., 2003 WL 260714,
at *5 (N.D. Ill. 2003)(indicating that evasive denials are improper and
thus the contested fact is deemed to be admitted pursuant to Local
In the instant case Espinosa submitted a response to Defendants' 56.1
statement of material facts. The majority of Defendants' facts are
expressly admitted by Espinosa. However, we note that Espinosa's 56.1
response does not list any response for facts 2 through 5. Also, her 56.1
response contains two separate responses for fact number 89, first
denying the fact and in the second response admitting the fact. Espinosa
has also responded to 97 facts although Defendants'
statement of facts only contains 95 facts. It is apparent after
comparing Espinosa's first denials that her denials do not match up with
Defendants' statement of facts. We will not search through Espinosa's
response to Defendants' statement of facts to determine if one of her
responses properly denies a fact in Defendants' statement of I facts.
Local Rule 56.1 was created to assist the court by relieving a court from
the necessity of sifting through the record in search of genuinely
disputed material facts and to prevent a plaintiff from progressing to
trial by creating confusion regarding the pertinent facts and the
evidence. Local Rule 56.1 requires a plaintiff to come forth with
specific evidence to support any of its denials and thus show that any
disputes are genuine.
Defendants' pointed out all of the above mentioned inconsistencies in
Espinosa's 56.1 response in their "Response to Plaintiff's Response to
Defendants' Statement of Material Facts and Plaintiff's Statement of
Facts" which was filed several months ago and Espinosa has not sought in
the interim to file an amended response to Defendants' 56.1 statement of
facts. Therefore, we shall take Espinosa's 56.1 response as it was
submitted and shall treat the numbered responses as they are written and
shall deem any facts admitted as is appropriate under Local Rule 56.1.
II. Race and Gender Discrimination Claims
If an employer in a Title VII discrimination case brings a motion for
summary judgment, the plaintiff can proceed under the direct or indirect
method of proof in order to defeat the motion. Pafford v.
Herman, 148 F.3d 658, 665 (7th Cir. 1998). Under the direct
approach, the plaintiff can show through direct or circumstantial
evidence that the alleged harmful action of the employer was "motivated
by an impermissible purpose, such as her race or national origin."
Id. Under the indirect approach the plaintiff must establish
a prima facie case which will allow an inference of
discrimination. Id. To establish a prima facie case of
race or gender discrimination a plaintiff must show: "(1) that she was a
member of a protected class; (2) that she was performing her job
satisfactorily; (3) that she experienced an adverse employment action;
and (4) that similarly situated individuals were treated more favorably."
Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002).
In cases dealing with reverse racial discrimination (discrimination
against the racial majority) the first prong of the prima facie
case is changed to require a plaintiff to show that there are
"`background circumstances' that demonstrate that a particular employer
has `reason or inclination to discriminate invidiously against whites' or
evidence that `there is something fishy about the facts at hand'"
Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir.
2003)(quoting Mills v. Health Care
Serv. Corp., 171 F.3d 450, 455 (7th Cir. 1999)).
If a prima facie case is established then there is a
rebuttable presumption of discrimination and the employer is required to
offer a "legitimate, non-discriminatory reason for the adverse employment
action." Cianci v. Pettibone Corp., 152 F.3d 723, 726 (7th Cir.
1998). If the employer provides such a reason, the plaintiff must then
show that the reason alleged by the employer is merely a pretext for
Espinosa does not present evidence sufficient to proceed under the
direct method of proof and will therefore need to proceed under the
indirect method. She argues that Defendants gave her reprimands, failed
to train her, refused to give her overtime, and terminated her employment
because of her gender and her race.
A. Race Discrimination Claim
Espinosa's reverse race discrimination claim fails at the first prong
because she has failed to show background circumstances that indicate
that Defendants had "reasons or inclination" to discriminate against
Caucasian employees. Espinosa has not alleged that any derogatory
comments were made about Caucasians by supervisors or co-workers at GM.
Also, Espinosa admits pursuant to Local Rule 56.1 that during the period
that Ward was supervisor he issued 41 written reprimands
to 17 different employees and only 2 of the 17 employees including
Espinosa were Caucasian. (R SF 47). The record is utterly devoid of
evidence that would indicate that GM or the Defendant supervisors had a
predilection to discriminate against Caucasian employees.
Espinosa alleges only one action by Defendants that constitutes an
adverse employment action. The written reprimands did not constitute
adverse employment actions. See Grube v. Lau Indus., Inc.,
257 F.3d 723, 729 (7th Cir. 2001)(stating that "unfair reprimands or negative
performance evaluations, unaccompanied by some tangible job consequence,
do not constitute adverse employment actions."). Furthermore, most of the
reprimands against Espinosa were stricken from her record. The failure to
train could be sufficient to constitute an adverse employment action, but
such a conclusion is not supported by the record. Espinosa admitted that
she was given two additional weeks of training after her written
reprimands for not meeting the production standard were stricken. (R SF
29). She also admits that she was given eighteen days of training on the
stacker machine before she started and admits that other stacker machine
operators were given comparable training. (R SF 21, 22). See Durkin
v. City of Chicago, 341 F.3d 606, (7th Cir. 2003)(stating that
although a failure to train may in some circumstances constitute an
adverse employment action the plaintiffs "contention that she was denied
training is not
borne out by the record."). The alleged denial of overtime could be
sufficient to constitute an adverse employment action, but the allegation
is again not supported by the record. Ward admits that she was given less
overtime than other stacker operators because most overtime opportunities
were given to first-shift employees rather than second shift employees
and because Espinosa was not performing her job satisfactorily. (R SF
61). The termination of Espinosa's employment constituted an adverse
An employee is similarly situated if the employee "is one who is
`directly comparable to [the plaintiff] in all material respects.'"
Rogers v. City of Chicago, 320 F.3d 748, 755 (7th Cir.
2003)(quoting Grayson v. O'Neill, 308 F.3d 808, 819 (7th Cir.
2002)). The employees mentioned by Espinosa as similarly situated
employees worked in different positions and worked under other
supervisors or under Ward during a different period. Also, Espinosa fails
to show that one of the alleged similarly situated employees were treated
differently. She points to no co-worker that failed to show up to work
for five days and was not terminated.
Even if Espinosa could establish a prima facie case Defendants
have provided a legitimate non-discriminatory reason for her discharge.
Defendants contend that Espinosa was absent from work for five days
without properly notifying Defendants of the reason and therefore she
lost her seniority under the agreement between the
union and GM. Espinosa has offered no evidence to show pretext. The
record is utterly devoid of any indication that the given reason by
Defendants was a pretext so that they could discriminate against Espinosa
because she is Caucasian.
Espinosa claims that some of the supervisors' conduct was offensive,
such as her allegation that during her meeting with a GM manager that he
was "arrogant" and "talk[ed] down to [her.]" (SF 78). Another example is
that she claims that a supervisor laughed at her during a meeting. (SF
43). While these allegations indicate that Espinosa found certain conduct
by her supervisors to be offensive, the allegations in no way indicate
that Defendants' intended to discriminate against her because of her
race. Title VII does not provide employees with a remedy simply because
they find their treatment by their employer to be offensive.
B. Gender Discrimination Claim
Espinosa has failed to show that she was performing her job
satisfactorily. She admits pursuant to Local Rule 56.1 that she did not
receive overtime because she was not satisfactorily performing her job. (
R SF 61). Pursuant to Local Rule 56.1 she admits that GM sent her notice
that if she did not report to work within five days that she would lose
her seniority. (R SF 88). She admits that she did not furnish GM with a
doctor's note that excused her absence past May 1, 2003, and
admits that she was absent on May 2, 2003. (R SF 89, 90, 91). As
with her race discrimination claim she fails to point to a similarly
situated employee that was treated more favorably than her. In addition,
even if she established a prima facie case, there is not
sufficient evidence for a reasonable trier of fact to conclude that
Defendants' given reason for her termination was a pretext in order to
discriminate against her because she is a woman. Therefore, we grant the
motion for summary judgment on the gender discrimination claim.
III. Hostile Work Environment Claim
Title VII prohibits an employer 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)(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
282 F.3d 456, 463 (7th Cir. 2002).
Although Espinosa entitles Count I of her complaint "Sexual Harassment
Hostile Work Environment in Violation of Title VII" she alleges
no facts in her complaint or her answer to the instant motion that
indicate that she suffered harassment of a sexual nature. Her hostile
work environment claim is based on allegations of mistreatment such as
the rats incidents and lighting incidents. Therefore, we presume that she
merely mislabeled Count I in her complaint. She clearly cannot meet the
requirements of a sexual harassment hostile work environment claim. One
requirement is that a plaintiff must show that "she was subjected to
unwelcome sexual advances, requests for sexual favors or other verbal or
physical conduct of a sexual nature." Rhodes v. Illinois Dept.
Transp., 2004 WL 350996, at *5 (7th Cir. 2004).
In her answer to the instant motion Espinosa argues that she was
mistreated and that the working conditions at GM were poor, but she fails
to indicate the basis for her Title VII hostile work environment claim.
Espinosa apparently beleives that she is entitled to relief under Title
VII simply because her working conditions are poor. However, Title VII is
a civil rights statute. It does not seek to legislate working conditions
in general for employees. For Title VII to become applicable there must
be discrimination based on one of the protected characteristics listed in
Title VII. Although there is a lack of clarity in her submissions
to this court, a we will give her briefs a generous reading and we will
address claims that she suffered the alleged harassment at work both
because of her race and her gender.
To establish a hostile work environment claim based upon race a
plaintiff must show that: "(1) [s]he was subject to unwelcome harassment;
(2) the harassment was based on h[er] race; (3) the harassment
unreasonably interfered with h[er] work performance by creating an
intimidating, hostile, or offensive working environment that seriously
affected h[er] psychological well-being; and (4) there is a basis for
employer liability." Hrobowski v. Worthington Steel Co., 2004 WL
291973 (7th Cir. 2004). In this case, even if the alleged mistreatment is
true, Espinosa fails to present evidence that would suggest that the
mistreatment was because of her race. Also, the alleged mistreatment is
not sufficient to constitute a hostile work environment. Espinosa's main
complaints are in regards to the rat incidents, the lighting incident,
and her supervisor watching her go to the bathroom.
To be a hostile work environment the harassment must be pervasive.
Espinosa states in her answer that she was "forced to work with rats
running around her feet" and she would have this court envisage her
working day after day with rats scurrying around her feet. In truth she
only claims to have seen rats on two occasions during the entire time she
worked at GM. She admits that GM took steps
to address the situation by placing additional traps in her area.
(R SF 75). Espinosa claims that one day the lights were turned off in her
work area. However, the light on her machine remained on and when she
complained all the lights were turned back on. (R SF 68, 69). Espinosa
also claims that Ward would watch her go to the bathroom. However, she
does not indicate that Ward spied on her in the bathroom or made any
comments to her when she would go to the bathroom. She merely claims that
he watched her and followed her to the bathroom. (R SF 48). Whether or
not we approve of Ward's actions and his manner of supervision is not for
us to decide. See Mills v. Health Care Serv. Corp.,
171 F.3d 450, 459 (7th Cir. 1999)(stating that the courts are not intended to
serve as a "super-personnel department" that reviews each an every
business decision of an employer). A supervisor is obligated to monitor
subordinates and thus it is not entirely unthinkable for a supervisor to
keep track of an employee when she leaves the work area. Such conduct is
not sufficiently severe to interfere with Espinosa's work performance.
Espinosa also admitted that she does not know if Ward watched other
employees when they went to the bathroom. (R SF 49). Considering all of
the alleged mistreatment against Espinosa cumulatively no reasonable
trier of fact could find it sufficiently severe, frequent, or pervasive
to unreasonably interfere with Espinosa's work performance.
We emphasize that it did not unreasonably interfere with her work
performance. Espinosa claims that she started taking medication for her
anxiety because of the alleged mistreatment at work, but her anxiety was
not reasonable. For example, she claims to have been traumatized because
a supervisor laughed at her on one occasion (SAF 43) and complains mat
when the lights were turned off in her work area she asked a supervisor
to turn the lights back on and that, although they were turned back on,
the supervisor "put his hands over his ears and then walked away." (R SF
68). She also alleges that a supervisor was "arrogant" and "talk[ed] down
to [her]." (R SF 78). While a reasonable employee may find such conduct
to be offensive, it would not be as traumatizing an experience as
Espinosa's claims. In regards to the rats incident Espinosa asserts in
her own statement of facts that "Plaintiff was very afraid of rats, and
upon seeing the rats around her, she began feeling faint, and went to see
a nurse in medical." (SAF 34). Even though there is no indication from
the evidence that the rats were in her area for more than an isolated
instance and the medical center had not cleared her to leave work,
Espinosa left work for the day. Espinosa's sensitivity to rats and her
reaction to the presence of a rat or rats for an isolated instance in her
work area was not reasonable.
In regards to the hostile work environment claim based on Espinosa's
gender the analysis is much the same. Espinosa fails to offer evidence
that would indicate
that the alleged mistreatment is because of her gender. The alleged
mistreatment is not sufficiently severe, frequent, or pervasive to
unreasonably interfere with her work. Therefore, we grant the motion for
summary judgment on all of the hostile work environment claims.
IV Intentional Infliction of Emotional Distress Claim
Espinosa also brings an IIED claim. To establish an IIED claim under
Illinois law a plaintiff must show that: "(1) the defendant's conduct was
extreme and outrageous; (2) the defendant either intended that his
conduct should inflict severe emotional distress, or knew that there was
a high probability that his conduct would cause severe emotional
distress; [and] (3) the defendant's conduct in fact caused severe
emotional distress." Dunn v. City of Elgin, 347 F.3d 641, 651
(7th Cir. 2003)(quoting Doe v. Calumet City 641 N.E.2d 498, 506
(Ill. 1994)). In this case Espinosa has not provided sufficient evidence
for a reasonable trier of fact to conclude that Defendants' conduct was
extreme and outrageous or that Defendants intended their conduct to cause
her severe distress or knew that their conduct would do so. Therefore, we
grant summary judgment on the IIED claim. In addition, even if the
Espinosa had sufficient evidence to support her IIED claim, we would
dismiss the claim because it would be the only remaining claim before us,
and since it is a
state tort claim and there is no showing of diversity jurisdiction
the claim is not properly before this court. See Blau Plumbing, Inc.
v. S.O.S. Fix-it, Inc., 781 F.2d 604, 612 (7th Cir. 1986)(indicating
that "[s]tate law claims should not be retained for adjudication in
federal court when the sole remaining basis for federal jurisdiction is
the judge-made doctrine of pendent jurisdiction, unless there are
pressing reasons for retention. . . .").
Based on the foregoing analysis we grant Defendants' motion for summary
judgment in its entirety.
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