United States District Court, N.D. Illinois, Eastern Division
June 2, 2005.
CHARLES GRIFFIN, Plaintiff,
DAUBERT CHEMICAL CO., INC., Defendant.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Charles Griffin, an African-American male, filed a six-count
complaint against Defendant Daubert Chemical Company for race harassment
(Counts I and II), race discrimination (Counts III and IV), and retaliation
(Counts V and VI) under Title VII and 42 U.S.C. § 1981. Before the Court are
the Defendant's Motion for Summary Judgment and the parties' Cross-Motions
to Strike. The Court does not specifically cite to the record in evaluating
the motions because a large part of the record was filed under seal.
A. Employment Description
Defendant hired Plaintiff as a maintenance welder and repairman
beginning on or around March 9, 2000, and he remains an employee
to date. Since his date of hire, four of his five performance
reviews have indicated that Plaintiff met Defendant's overall
standards. Only Plaintiff's most recent review (January 2004) indicated that he had "some improvement needed," and Defendant placed
him on a wellness plan. Defendant also has placed three Caucasian employees
with similar reviews on wellness plans.
Plaintiff has consistently been the third highest paid employee
in the maintenance department. Since he was hired, Plaintiff has
received four pay raises: December 2000, January 2002, January
2003, and January 2004. Plaintiff was also the maintenance
department employee with the highest overtime pay in December
2003 and January 2004, and had the second highest amount of
overtime overall in 2003. Plaintiff did not receive any overtime
in February 2004, but was only eligible for overtime during two
weeks of the month.
In his second amended complaint (the "complaint"), Plaintiff
alleges that Caucasian co-workers and supervisors continuously
made racially derogatory comments to him. Specifically, Plaintiff
alleges that Caucasian co-workers called him a "nigger" and
"coon" on a daily basis; humiliated him on a daily basis; said "I
can't see you. You're too dark"; said "who put a quarter in you"
when he tried to speak; said "some Blacks are just niggers and
coons"; wore a shirt with the word "Klan" displayed; told him to
make a "barbeque grill, nigger"; said "you can pull that mask
off, Halloween is over"; said "I don't wanna be a brother, I want
to be a police officer so I can beat down black people"; asked if
he was "trying to turn himself white" when he was covered by PVC dust;
and taped a pornographic picture to his locker. Plaintiff also
alleges that Supervisor Rob Sobkowiak said once, "I wouldn't go
to Indiana that is where the Klan's headquarters are" and asked
him on multiple occasions if he was "on crack" cocaine.
Defendant disputes nearly all of these allegations. Based on
the parties' submissions, only the following allegations are
undisputed. Supervisor Rob Sobkowiak testified that asked
Plaintiff and the other maintenance employees (including
Caucasians) if they were "on crack." Co-worker Greg Kozicki
admitted that on a few occasions before and after his shift, he
wore a T-shirt with a hooded figure on it, which said "Clan."
Kozicki testified that the shirt was for his baseball team and
referred to an Irish clan. After learning of the shirt, Defendant
suspended Kozicki for three days, gave him six months probation,
and documented the incident in his personnel file. Defendant also
suspended other employees for failing to report the shirt.
Finally, co-worker Patrick Sherrick admitted that he said once
that he "want[ed] to be a police officer so [he] c[ould] beat
gangbangers" and that he may have added "black people." As a
result, Defendant suspended Sherrick for five days without pay
and provided him additional harassment training. Defendant
disputes the complaint's remaining allegations, as well as
similar allegations from the Statement of Additional Facts. Beginning on April 8, 2002, Plaintiff contends that he
complained to various supervisors about his co-workers' actions,
including Sobkowiak (his direct supervisor), Mark Palmer (a
supervisor), Brian Bell (Plant Manager), Mark Pawelski (Vice
President), and Ginny Winkle (Corporate Human Resources).
Defendant acknowledges that Plaintiff met with these individuals
and complained about his employment, but denies the substance of
the complaints. The supervisors testified that Plaintiff never
complained to them or mentioned the alleged race-based comments
and actions of his co-workers. To the contrary, Defendant
contends that in these meetings, Plaintiff only complained about
his workload, job assignments, the lack of opportunity to express
repair ideas, and that he and Patrick Adams (a Caucasian
employee) received more "dirty jobs" than other workers.
Defendant insists that it did not learn of any of Plaintiff's
racial harassment, discrimination, or retaliation complaints
until after it received Plaintiff's EEOC charge in February 2004.
On September 17, 2003, Plaintiff punched in at 6:00 a.m. He
went to the boiler room with coffee, a McMuffin, and a newspaper.
At approximately 6:35 a.m., supervisor Palmer made rounds at the
plant and could not locate Plaintiff. He looked in the boiler
room and found Plaintiff reading the newspaper, eating, and
drinking coffee. At that time, Plaintiff was not on break and had
not been instructed to check the salt dispenser in the boiler room. Palmer
told Plaintiff to punch out and go home. Plaintiff left before
7:00 a.m. and was suspended for one day. Plaintiff acknowledges
that under company policy, employees are not allowed to read the
newspaper or eat unless they are on a break. Plaintiff contends
that the rule is inequitably enforced.
On October 14, 2003, Plaintiff was paid for the entire day and
worked an extra hour of overtime. He spent roughly four hours
that day (from 9:00 a.m. until approximately 1:00 p.m.) on a
personal project he built a barbeque grill. That morning,
Sobkowiak observed Plaintiff cutting a drum. Plaintiff asked
Sobkowiak if he could take the drum home, and Sobkowiak agreed.
Due to this interaction, Plaintiff contends that Sobkowiak knew
about the grill. Sobkowiak testified that he did not know until
later in the day that Plaintiff was using the drum to build a
grill on company time. Regardless, Plaintiff testified in his
deposition that he did not seek or receive permission to build
the grill on company time. Sobkowiak and Brian Bell confronted
Plaintiff at the end of the day about the grill, and suspended
him for five days.
D. EEOC Charge and Response
Plaintiff filed an EEOC charge on January 15, 2004 alleging
race discrimination and retaliation, alleging he had been
subjected to a hostile-work environment based on my
race, including . . . racially derogatory remarks and
. . . disparate terms and conditions of my employment
compared to my similarly situated non-African
American co-workers . . . I have been called a `nigger' and a `coon' on
several occasions and many times when I have
complained to my supervisors about the remarks they
are dismissed as jokes. However, soon after making
complaints about the harassing remarks, I have been
falsely disciplined for reading the paper while other
non-African American co-workers are not discipline
[sic] for reading the paper.
After receiving the EEOC charge in late February 2004, Defendant
commenced an investigation and enacted several changes. It hired
an independent investigator to interview Plaintiff's coworkers
regarding his allegations; disciplined and suspended several
employees; implemented additional discrimination and harassment
training; and held mandatory individual harassment training
sessions for specific employees.
II. LEGAL STANDARD
Summary judgment is appropriate 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). A fact is
"material" if it could affect the outcome of the suit under the
governing law; a dispute is "genuine" where 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). The burden is initially upon the movant to demonstrate
the absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). In assessing the movant's
claim, the court must view all the evidence and any reasonable inferences that may
be drawn from that evidence in the light most favorable to the
nonmovant. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997,
1003 (7th Cir. 2000).
A. Motions to Strike
Plaintiff and Defendant have filed dueling motions to strike
portions of each other's Local Rule 56.1 submissions. Rule 56.1
"serves the important function of structuring the summary
judgment process so as to `assist the court by organizing the
evidence, identifying undisputed facts, and demonstrating
precisely whose each side propose[s] to prove a disputed fact
with material evidence." Menasha Corp. v. News Am. Mktg.
In-Store, 238 F. Supp. 2d 1024, 1029 (N.D. Ill. 2003) (quoting
Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999)). The
statements and responses should "contain only the material
facts. They are not a proper place to present legal arguments or
conclusions. . . ." Gizaw v. Ill. Dept. of Public Aid, No. 02 C
5862, 2004 WL 421958, at *4 (N.D. Ill. Feb. 13, 2004) (emphasis
Defendant submitted 413 numbered statements in its Rule 56.1(a)
(3) Statement of Material Facts. Plaintiff responded, and also
included 246 numbered statements in its Rule 56.1(b) (3) (B)
Statement of Additional Facts. Defendant responded, and then
added 314 reply statements to Plaintiff's responses to
Defendant's 56.1 (a) Statement of Material Facts. Defendant now moves to
strike paragraphs 494-505, 542-565, and 652-659 of Plaintiff's
Statement of Additional Facts as immaterial and irrelevant.
Plaintiff moves to strike Defendant's 314 reply statements in
their entirety as impermissible under Rule 56.1.
Here, both parties submitted voluminous materials in addition
to hundreds of asserted "material" facts a large portion of
which were repetitive, contradictory, hearsay, or not material.
In ruling on Defendant's Motion for Summary Judgment, the Court
disregards all argumentative, conclusory, unsupported,
inadmissible, or otherwise non-conforming portions of the
respective Rule 56.1 statements. For example, the Court did not
consider Plaintiff's asserted facts regarding his FMLA leave
request because they are immaterial to the complaint's claims for
race harassment, discrimination, and retaliation, and are not
referenced in, or substantially related to, the allegations in
Plaintiff's EEOC charge. Accordingly, the parties' motions to
strike are unnecessary, and such motions are DENIED AS MOOT.
B. Summary Judgment Motion
1. Race Harassment Claims
Counts I and II of Plaintiff's complaint present race
harassment claims pursuant to Title VII and 42 U.S.C. § 1981. The
Court addresses these two counts simultaneously. See Herron v.
Daimler Chrysler Corp., 388 F.3d 293, 299 (7th Cir. 2004)
("Because we evaluate § 1981 claims under the same rubric as Title VII
claims, we need not address them separately."). Plaintiff alleges
his co-workers created a hostile work environment through their
race-based words and actions. To survive summary judgment, "an
employee alleging racial harassment must show: (1) he was subject
to unwelcome harassment; (2) the harassment was based on his
race; (3) the harassment was severe or pervasive so as to alter
the conditions of the employee's work environment by creating a
hostile or abusive situation; and (4) there is a basis for
employer liability." Williams v. Waste Mgmt. of Ill.,
361 F.3d 1021, 1029 (7th Cir. 2004). Defendant contends that Plaintiff has
failed to establish elements two through four.
As to element two, Defendant denies that any employees called
Plaintiff express racial epithets, such as "nigger" or "coon."
Defendant further contends that Plaintiff's remaining allegations
are uncorroborated or not based upon race. For example, Sobkowiak
testified that he also asked Caucasian maintenance department
employees if they were "on crack." Similarly, Caucasian employees
testified that they had been asked "who put a quarter in you."
Defendant argues other alleged statements were not racial if
considered in context the use of the word "coon" in a
discussion about racoons in a garage, and the "pull the mask off"
comment said once around Halloween. As discussed supra, the vast majority of Plaintiff's factual
allegations are disputed. One undisputed allegation, however, is
that a co-worker wore a "Clan" T-shirt with a hooded figure in
Plaintiff's presence. The Court must carefully consider "the
social context in which particular behavior occurs and is
experienced by its target . . . [T]he real social impact of
workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships."
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82
(1998). Taking the allegations in the light most favorable to
Plaintiff, a reasonable jury could find that the shirt, when
combined with the other allegations, was a harassing comment
based on race. Accordingly, Plaintiff meets element two for
summary judgment purposes.
The Court next addresses element three, whether the alleged
harassment created a hostile environment. Plaintiff must
establish that his workplace was both subjectively and
objectively hostile, in that it was "sufficiently severe or
pervasive as to alter the conditions of the victim's employment
and to create an abusive working atmosphere." Doe. V.R.R.
Donnelley & Sons, Co., 42 F.3d 439, 443 (7th Cir. 1994). The
Court examines the totality of the circumstances, and considers
the following relevant factors: 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." Harris v. Forklift Systems,
510 U.S. 17 (1993).
What was said, how frequently, and by whom, are genuine
material facts that are at issue in this case. Interpreting
Plaintiff's allegations in a light most favorable to him, as is
required, the Court finds that material factual disputes exist on
element three. The Court further notes material factual disputes
exist on element four. Weighing evidence and evaluating the
credibility of witnesses are issues for the trier of fact and a
jury must evaluate the strength and weight of the evidence. See
Hawkins v. Groot Indus., Inc., No. 01 C 1731, 2003 WL 1720069,
at *3 (N.D. Ill. March 31, 2003). Accordingly, summary judgment
is inappropriate on the race harassment claims and Defendant's
Motion for Summary Judgment is DENIED on Counts I and II.
2. Race Discrimination Claims
Counts III and IV of Plaintiff's complaint present race
discrimination claims pursuant to Title VII and 42 U.S.C. § 1981,
which the Court addresses simultaneously. See Herron,
388 F. 3d at 299. Two actions form the basis of his race discrimination
claim: his September 2003 suspension for reading on company time;
and his October 2003 suspension for building a barbeque grill on
company time. A plaintiff must prove race discrimination using either direct
or indirect evidence. Plaintiff has not alleged direct evidence
of race discrimination, and therefore, he must prove his claim
under the indirect method. See Daniels v. Federal Reserve Bank
of Chicago, No. 98 C. 1186, 2004 WL 419796, *8 (N.D. Ill. 2004).
This method requires Plaintiff to present evidence establishing
that: "(1) [he] was a member of a protected class; (2) [he] was
qualified for the job in question or was meeting her employer's
legitimate performance expectations; (3) [he] suffered an adverse
employment action; and (4) the employer treated similarly
situated employees outside the class more favorably." Foster v.
Arthur Andersen, 168 F.3d 1029, 1035 (7th Cir. 1999). If
Plaintiff establishes each of these four elements, then the
burden of production shifts to Defendant to identify a
nondiscriminatory reason for the action taken. See Little v.
Ill. Dep't of Revenue, 369 F.3d 1007, 1011 (7th Cir. 2004).
After Defendant establishes a valid reason, Plaintiff can avoid
summary judgment only by producing evidence that Defendant's
stated reason is merely pretextual. See id.
Elements one through three are undisputed. Defendant argues
that Plaintiff's claims fail because he cannot meet element four
"similarly situated." A similarly situated employee is "someone
who is directly comparable to him in all material respects,"
Grayson v. O'Neill, 308 F. 3d 808, 819 (7th Cir. 2002),
including being "similarly situated with respect to performance, qualifications, and conduct." Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617 (7th Cir. 2000).
a. September Suspension
On September 17, 2003, Plaintiff admits that Mark Palmer
personally observed him eating and reading the paper in the
boiler room when he was not on a break. Plaintiff acknowledges
that under company policy, employees are not allowed to read the
newspaper or eat on company time, unless they are on break or at
lunch. Palmer told Plaintiff for clock out for the day and go
home. Plaintiff left by 7:00 a.m. (a one-day suspension).
Plaintiff alleges that Caucasian maintenance employees
regularly engaged in the same activity without discipline.
Plaintiff relies on co-workers Greg Kozicki and Pat Sherrick's
admissions that they have read the newspaper during work hours.
Plaintiff has not demonstrated that these employees are similarly
situated in that they "engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish
their conduct or the employer's treatment of them." Radue,
219 F.3d at 618. Plaintiff testified that he observed several
co-workers reading the newspaper on multiple occasions without
punishment. He makes conclusory, unsupported statements that some
employees were not on break on certain occasions that he observed
them. Plaintiff fails to allege or provide factual support to
establish that the conduct was similar to Plaintiff's the employees were not on a break, a supervisor (let alone the same
supervisor) personally saw them reading the paper, and the
supervisor knew that they were not on break when observed
reading. Plaintiff points to several instances of obviously
dissimilar conduct, such as co-workers reading the paper before
a supervisor arrived at work. Further, Plaintiff admits that he
did not report to anyone the alleged instances of co-workers
misconduct on October 27, October 30, November 12, December 5,
December 11, December 16, January 14, and January 21. Plaintiff
also never provided to any supervisor the log he maintained of
such alleged incidents.
Additionally, contrary to Plaintiff's contentions, a Caucasian
maintenance department employee, Greg Kozicki, who also has
Sobkowiak as supervisor, was disciplined (even more harshly) when
a supervisor observed him engaging in the same conduct on company
time. In 1990, Kozicki was disciplined on multiple occasions (a
verbal warning, written warning, and three day suspension) by
the then-supervisor who personally observed him reading the
newspaper. In 1996, Kozicki was again suspended for five days.
Plaintiff tries to distinguish himself from Kozicki by arguing
that he did not get a verbal warning before suspension. The
record reflects otherwise. Seven days earlier, supervisor Palmer
approached Plaintiff and asked him to fix a leak in a steam pipe.
Plaintiff, who was trained to fix the pipe and was on company
time, complained and told Palmer to find another employee to fix it. Palmer
testified that Plaintiff was eating and reading the newspaper at
the time, which Plaintiff denies. Palmer verbally told Plaintiff
that he did not want this to happen again (a warning), and
informed Sobkowiak of the incident.
Plaintiff has not demonstrated that there exist any similarly
situated employees outside the class whom Defendant treated more
favorably. Therefore, Plaintiff has not made a prima facie case
of race discrimination based upon the September suspension. Even
if Plaintiff had made a prima facie case, Defendant has
provided a legitimate, nondiscriminatory reason for the
suspension Plaintiff's admitted violation of company policy by
reading the paper and eating while not on break. Plaintiff does
not produce evidence that such rationale is pretextual. Taking
the facts and inferences in a light most favorable to Plaintiff,
a reasonable jury could not find race discrimination based upon
the September suspension.
b. October Suspension
On October 14, 2003, Supervisor Sobkowiak suspended Plaintiff
for five days for building a barbeque grill during work hours
without permission. According to company policy, employees may do
personal work on company time only with permission, and usually
for short time periods. Plaintiff admitted that he did not obtain
approval to build the barbeque during work hours, testifying "No, didn't no one tell me to make it or I didn't ask no one to make
it." Pl. Dep., at 482:24-483:15.
Plaintiff argues that the five-day suspension was
discriminatory because other employees worked on personal
projects during work hours without punishment. Plaintiff contends
that co-worker Keith Simmons sold meat and rationed out doughnuts
to other employees during work time, and co-worker Kerry Kozicki
tested and replaced Christmas light bulbs during work time. As
with the September suspension, Plaintiff has not demonstrated
that these individuals are similarly situated. Plaintiff did not
allege that any other maintenance employee specifically built a
grill, another comparable large personal project, or that these
other projects required multiple hours during one shift.
Additionally, Plaintiff did not present evidence that these
individuals worked on the personal projects without permission,
or that supervisors were even aware of such activities.
Plaintiff also alleges that supervisors asked him to do
personal work for them on company time. Mark Pawelski assigned
Plaintiff the task of welding chairs, and that Dave Pope assigned
Plaintiff the task of repairing metal. However, Pawelski and Pope
are supervisors and are not similarly situated to Plaintiff.
Further, this work was obviously authorized as it was
specifically requested by supervisors. For these reasons, Plaintiff has not presented evidence that
Defendant treated similarly situated employees outside of
Plaintiff's class more favorably, and has not made a prima
facie case of discrimination based upon his suspension. Even if
Plaintiff had made a prima facie case, Defendant has identified
a legitimate, nondiscriminatory reason for the suspension
Plaintiff's violation of company policy by spending significant
company time on a personal project without permission. Even when
the facts and inferences therefrom are interpreted in a light
most favorable to Plaintiff, the evidence does not support a
finding of race discrimination. Defendant's Motion for Summary
Judgment is GRANTED on Counts III and IV.
3. Retaliation Claims
Counts V and VI of Plaintiff's amended complaint present
retaliation claims pursuant to Title VII and 42 U.S.C. § 1981. A
plaintiff can pursue a retaliation claim using either the direct
or indirect method to establish discriminatory intent. See Stone
v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th
Cir. 2002). Plaintiff presented no direct evidence of
retaliation. Under the indirect method, Plaintiff can establish a
prima facie case of retaliation by showing that "(1) [he]
engaged in statutorily protected activity; (2) [he] was
performing her job according to . . . legitimate expectations;
(3) despite [his] satisfactory performance, [he] suffered an
adverse employment action; and (4) [he] was treated less favorably than similarly
situated employees who did not engage in statutorily protected
activity." Luckie v. Ameritech Corp., 389 F.3d 708, 714 (7th
Statutorily protected expression can include informal
grievances to supervisors. See Laird v. Cragin Federal Bank,
Nos. 94-1321 & 1556, 1994 WL 609920 at *6 (7th Cir. Nov. 3,
1994). It is undisputed that Plaintiff complained to various
supervisors on multiple occasions from 2002 on. The content of
his complaints is disputed, as is the date on which Defendant
received notice of Plaintiff's race-based allegations. However,
Plaintiff has satisfied element one because a reasonable jury
could conclude that Plaintiff engaged in statutorily protected
activity. Element two is undisputed by Defendant.
Plaintiff must also show that he suffered an adverse employment
action and was treated less favorably than similarly situated
employees who did not complain to management. Plaintiff's
complaint alleges three retaliatory instances: the two
suspensions (discussed above) and the refusal to provide overtime
opportunities in February 2004. Under Seventh Circuit law,
actionable adverse employment actions must be materially adverse,
such as "a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a particular situation."
Oest v. Ill. Dep't of Corrections, 240 F.3d 605, 612-13 (7th
Cir. 2001) (citation omitted).
Plaintiff's two suspensions would constitute adverse employment
actions. However, as discussed at length supra, Plaintiff has
not established that there exist any similarly situated employees
who were treated differently (or more favorably) than Plaintiff
as to either suspension. Accordingly, Plaintiff cannot establish
a prima facie case of retaliation based upon such actions.
Further, Defendant has asserted legitimate, non discriminatory
rationale for the suspensions, which Plaintiff has not rebutted.
Plaintiff also contends that supervisors withheld overtime from
Plaintiff in February 2004. From the Court's research, it appears
that the Seventh Circuit has not definitively addressed the issue
of whether this would constitute an adverse action, and the
parties have not addressed it. Because Plaintiff cannot prove
that he was treated less favorably than similarly situated
employees who did not engage in statutorily protected activity,
the Court need not resolve this issue. To be eligible for
overtime, an employee must first work a full forty hour week. It
is undisputed that Plaintiff worked less than forty hours during
two weeks of February 2004. Plaintiff does not demonstrate that
others were similarly situated. There is no allegation that
another maintenance department employee who did not complain received overtime in
February when they worked less than forty hours or were available
only a fraction of the month. There is also no allegation that
other employees who received overtime were comparable in terms of
skill, training, and availability, or that he was equally
qualified for the particular overtime tasks on the weeks he was
eligible. The evidence in the record actually demonstrates that
Plaintiff was treated better than the other employees who did not
complain of discrimination Plaintiff was the maintenance
department employee with the highest overtime pay in December
2003 and January 2004, and had the second highest amount of
overtime overall in 2003. Taking the facts and inferences in the
light most favorable to Plaintiff, he cannot make a prima facie
case of retaliation based upon overtime opportunities or the two
Finally, the Court notes that Plaintiff attempts to raise the
several new retaliatory actions in his opposition memorandum and
materials his December 2004 performance review, his placement
on a wellness plan, and allegedly disparate work assignments. The
Court disregards these allegations because they were not pled in
the complaint. "A plaintiff may not amend his complaint through
arguments in his brief in opposition to a motion for summary
judgment." Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th
Cir. 1996). Further, these allegations do not constitute
materially adverse employment actions even if properly pled.
Plaintiff did not suffer any negative economic consequences due to these
alleged actions. To the contrary, Plaintiff got a raise despite
the review and placement on the wellness program. He also did not
lose any benefits, have diminished material responsibilities, and
he was not terminated. "Unfair reprimands or negative performance
evaluations, unaccompanied by some tangible job consequence, do
not constitute adverse employment actions." Grube v. Lau Indus.
Inc., 257 F.3d 723, 729 (7th Cir. 2001). Defendant's Motion for
Summary Judgment is GRANTED on Counts V and VI.
For the reasons stated herein, Plaintiff's and Defendant's
Motions to Strike are DENIED AS MOOT. Defendant's Motion for
Summary Judgement is DENIED on Counts I and II, and GRANTED
on Counts III, IV, V, and VI of Plaintiff's Second Amended Complaint.
IT IS SO ORDERED.
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