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BOLTON v. SERVICE CORPORATION INTERNATIONAL

September 20, 2005.

CAROL BOLTON EL, Plaintiff,
v.
SERVICE CORPORATION INTERNATIONAL, Defendant.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Carol Bolton El has sued Defendant Service Corporation International ("SCI")*fn1 for discrimination based on race, color and disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), and 42 U.S.C. § 1983 ("Section 1983"), and the Americans with Disabilities Act of 1990 ("ADA"). Pending is SCI's motion for summary judgment. For the reasons set forth below, the Court grants the motion.

FACTS

  Except as noted, the following facts are undisputed. For the purposes of the instant motion, the Court views any properly disputed fact in plaintiff's favor. Plaintiff Carol Bolton El, an African-American woman, is a citizen of Illinois. (Compl. ¶ 1). Defendant SCI is a corporation located in Illinois. (Answer ¶ 2.)

  In 1998, plaintiff applied for a position as a receptionist for Rosehill Cemetery and Mausoleum ("Rosehill"). (Def.'s LR 56.1(a)(3) ¶ 3.) Ronald Graeff, then general manager at Rosehill, interviewed and hired Bolton. (Id.) In February 2001, Bolton agreed to familiarize herself with the information contained in SCI's Employee Handbook. (Id. ¶ 10.) In the "Rules of Conduct" section, SCI's Employee Handbook states: "Employees are the Company's primary asset. Therefore, it is important that all employees conduct themselves courteously and professionally. There are some forms of behavior that will not be tolerated, including, but not limited to: . . . Insubordination, or refusal to comply with reasonable instructions." (Id. ¶ 7.) Furthermore, under the section entitled "Our Values," the Handbook states: "All clients and employees must be treated equally regardless of race, color, sex, national origin, age, religion, or disability." (Id. ¶ 8.) The Handbook also contains a "Policy Against Harassment" section which sets forth the procedures for reporting alleged harassment.

 
If you have reason to believe that you, a fellow employee, or an employee who reports directly to you is a victim of harassment, you are required to report it immediately. Report all cases of alleged harassment to your supervisor, who will then assist in the investigation and problem resolution phases. . . . If the supervisor is part of the problem, report it to the next level of management. Complaints will be investigated promptly and will be resolved. . . . Employees must never be exposed to retaliation for having made a complaint or for participating in any investigation.
(Id. ¶ 9.)

  While employed by SCI, plaintiff, who suffers from sickle cell anemia, repeatedly called in sick and occasionally came to work late. (Pl.'s LR 56.1(b)(3)(A) ¶ 12.) In 1999, she failed to receive her one-year anniversary pin from SCI. (Id. ¶ 57.) Beginning in the summer of 2000 and continuing into 2001, she complained to her supervisors that the office was too cold. (Id. ¶¶ 13-14.) According to Bolton El, Florence Padlo, her supervisor, and Peter Sfickes, a counselor at Rosehill, deliberately set the temperature of the air conditioning low in order to make Bolton ill. (Id. ¶ 14.) Plaintiff admits that the air conditioning affected everyone in the office, not just her. (Id. ¶ 16.) According to SCI, Bolton El was permitted to take extra breaks whenever she needed to warm up outside. (Def.'s LR 56.1(a)(3) ¶ 15.) However, Bolton El denies that she was allowed to take breaks. (Pl.'s LR 56.1(b)(3)(A) ¶ 15.)

  In December 2000, Leonard Hayes replaced Graeff as general manager of Rosehill. (Def.'s LR 56.1(a)(3) ¶ 20.) In April 2001, Bolton El left the office without notifying anyone or obtaining prior approval because the office was too cold. (Pl.'s LR 56.1(a)(3)(A) ¶ 21.) Hayes issued Bolton El a warning notice for the incident that said Bolton El would receive another warning and a one-day suspension if the incident occurred again. (Def.'s LR 56.1(a)(3) ¶¶ 21-22.) Hayes told Bolton El he would make sure the thermostat was set at seventy-two degrees. (Id. ¶ 23.) After the incident, Hayes also bought Bolton El a space heater for her to use at her desk. (Id. ¶ 24.)

  On August 20, 2001, Hayes issued Bolton El a warning for failure to communicate with a co-worker in Houston, Texas. (Id. ¶ 25.) The warning notice stated that should the incident occur again, Bolton El would be discharged. (Id.) According to the warning notice, Bolton El became defensive with a co-worker and said to her, "You are acting as if I am trying to scam you. I am not trying to scam you." (Id. ¶ 26.) Bolton El wrote in the response section of the warning notice that she did not understand why she was receiving a warning and did not understand "[w]hat's wrong with the conversation" she had with the co-worker. (Id. ¶ 27.) Plaintiff also denied that she was defensive with the co-worker. (Pl.'s LR 56.1(b)(3)(A) ¶¶ 26-27.)

  In 2003, SCI failed to give Bolton El her five-year anniversary pin. (Pl.'s Dep. at 102-03.) She wrote the Houston office asking about her pin, and yet she never received it. (Id.) At an unspecified time, Mr. Lennahan, a sales counselor at Rosehill, allegedly commented that "If there were more blacks in France, they wouldn't be killing off the Jews" in response to an article about people in France killing Jews. (Id. ¶ 83.) Bolton El did not report the comment to her supervisors. (Id. ¶ 84.)

  In February 2003, Bolton El and Jeannette Kovitz, an administrative assistant, cemetery historian, and tour guide at Rosehill, discussed water access rights between Turkey and India. (Def.'s LR 56.1(a)(3) ¶ 28.) Bolton El stated that the countries should not fight over water because it belongs to everyone. (Id.) Kovitz responded, "Martin Luther King, Jr. thought that way and they killed him." (Pl.'s LR 56.1(b)(3)(A) ¶ 28.) Bolton El's supervisor, Florence Padlo, who was sitting at the table with Kovitz and Bolton El, told Kovitz that her statement was "not right." (Id. ¶ 29.) Bolton El did not report the incident to a supervisor because she said her supervisor, Padlo, was sitting at the table when the statement was made. (Id.)

  At a later date, Kovitz said that something on the internet was "Christian." (Def.'s LR 56.1(a)(3) ¶ 31.) Bolton El, then, said there was only one God. (Id.) Kovitz began to shout at Bolton El until Padlo told her to stop. (Id.) Kovitz left but later returned and stared at Bolton El. (Id.) Then, Kovitz walked by and dropped some books on the floor near Bolton El. (Id.)

  In February 2003, Bolton El called SCI's Care Line, a service provided by SCI that employees could call to voice their concerns or complaints, to report Kovitz's "Christian" comment and to complain about the warning she received for failure to communicate with a co-worker. (Pl.'s LR 56.1(b)(3)(A) ¶ 32.) After her call to the Care Line, Ruby Matthews visited Rosehill to investigate Bolton El's complaint. (Id. ¶ 34.) Matthews, former Regional Vice President for Human Resources for SCI, interviewed employees that were in the office on the date of the incident between Kovitz and Bolton El. (Id.) Matthews also met with Bolton El and told her she was "going to see if we can . . . make sure you have a nice life here [at work] also." (Def.'s LR 56.1(a)(3) ¶ 36.)

  According to SCI, after Matthews' investigation she met with Bolton El, Padlo, and Hayes. (Id. ¶ 37.) SCI maintains that during this meeting Bolton El became "agitated and declined to accept any responsibility for contributing to the conflict in the office." (Id.) She denies that this meeting occurred and that she became agitated with her supervisors. (Pl.'s LR 56.1(b)(3)(A) ¶ 37.)

  In April 2003, another disputed incident allegedly occurred. (Def.'s LR 56.1(a)(3) ¶¶ 38-39.) According to SCI, Bolton El received a warning from Hayes because she was upset and co-workers overheard her on the phone saying that "she hates this place" and "she hates everybody." (Id. ¶ 38.) Hayes allowed her to take a personal day in order to seek professional treatment. (Id. ¶ 39.) Although SCI produced a copy of the warning notice, it was not signed by Bolton El or Hayes, unlike the previous notices which contained ...


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