United States District Court, N.D. Illinois, Eastern Division
November 4, 2005.
MINERVA ALMAZAN, Plaintiff,
PEPPERIDGE FARMS, INC., Defendant.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on Defendant, Pepperidge
Farms, Inc.'s ("Pepperidge Farms"), motion for summary judgment
pursuant to Fed.R.Civ.P. 56. For the reasons set forth below,
the motion is granted.
The relevant facts are taken from the parties' filings under
Local Rule 56.1 ("L.R.56.1"). As is the practice in this
district, we will only consider those facts or additional facts
that are presented in conformity with L.R. 56.1. The alleged
facts not properly before us or unsupported by the record have
been disregarded. See Brasic v. Heinemann's Inc.,
121 F.3d 281, 284 (7th Cir. 1997) (refusing to consider the plaintiff's
additional facts where not supported by specific references to
the record). Almazan, a Hispanic woman whose national origin is Mexican, is
a resident of Downers Grove, Illinois. Pepperidge Farms is a
corporation with its principal place of business in Norwalk,
Connecticut and registered to do business in Illinois. Almazon
was employed by Pepperidge Farms at its Downers Grove Bakery
("Bakery") from September 30, 1978, until her employment was
terminated by Pepperidge Farms on March 5, 2003. At that time
Almazan held the position of bulk equipment cleaner.
The Bakery has a cafeteria where employees can purchase food
and beverages. Amber Bloomquist ("Bloomquist"), the Employee
Relations Manager at the Bakery, oversees cafeteria operations.
Bloomquist is a subordinate of Fern Downing ("Downing"), Human
Resources Manager, and therefore kept her informed of the
goings-on in the cafeteria. On occasion the Bakery is
short-staffed and there is not always an employee stationed at
the cash register to collect payment. Consequently, in conformity
with Bakery policy prior to Almazan's termination, employees
occasionally left payment for their purchases on the counter or
returned later to pay for their purchased items. Almazan concedes
that occasionally she would leave the cafeteria without paying
for her items, but asserts that she would later return to pay for
them. In an attempt to curb misuse of this practice, Bloomquist
posted two notices in the cafeteria, one on the counter and one
in the food line, indicating that cafeteria personnel "needed to
ring every purchase to keep track of purchases and inventories." Almazan does not recall the signs, but cannot say they were not
there. She concedes that she knew that employees were expected to
pay for cafeteria items and that stealing was grounds for
On February 13, 2003 and February 19, 2003, Bakery employee
Lynn Fox ("Fox") reported, and in so doing asked to remain
anonymous, that Almazan was not paying for her meals in the
cafeteria to Human Resources Associate Leslie Segermark
("Segermark"). Segermark then reported the information to
Bloomquist without revealing Fox's identity. On February 20,
2003, Bloomquist spoke with Kathy Forejt ("Forejt") and Gertrud
Mills ("Mills"), the morning shift cafeteria workers, and asked
them to watch for such situations and to inform her if any
On February 21, 2003, Mills informed Bloomquist that Almazan
had not paid for the meals she received the previous day. As a
result, Bloomquist began to investigate Almazan and, in so doing,
observed her taking cafeteria items without paying for them.
Bloomquist then spoke with three additional cafeteria workers;
each reported that Almazan generally did not pay for cafeteria
items and that the problem was worsening.
Consequently, on March 4, 2003, Bloomquist recommended to Paul
Canton ("Canton"), the Plant Manager, that Almazan's employment
be terminated for stealing. Bloomquist based her recommendation
on personal observations as well as information gleaned from the interviewed employees. Based upon the
recommendation, Caton decided that Almazan's employment should be
terminated absent any exculpatory information that should be
considered. It is undisputed that on four other occasions, both
before and after Almazan's discharge, Canton terminated employees
for stealing from the cafeteria. Each was non-Hispanic and
non-Mexican. In the event that the accused employee denied the
allegations, further investigation was conducted prior to their
termination. On March 5, 2003, Downing informed Bloomquist of
On March 5, 2003, Bloomquist and Paglia, her department head,
met with Almazan regarding the termination decision. When
presented with the news, Almazan was surprised and nervous. She
did not deny or admit the allegation and did not present any
exculpatory information to combat the allegation. Consequently,
Bloomquist informed Almazon that her employment was terminated.
Prior to her termination, Almazan had a meeting with Paglia to
discuss her job performance. At that meeting, Paglia informed
Almazan that he wanted her to give 110 percent to her work and
also imposed strict deadlines on her to complete her work
assignments. Plaintiff did not witness Paglia make similar
requests of other employees. On May 18, 2001, following the
meeting with Paglia, Almazan complained to Downing about the
meeting with Paglia and their relationship generally. Almazan indicated that she felt "singled out" and discriminated against
because of the meeting and because she believed Paglia was more
friendly with other employees. Pepperidge Farms maintains a
written policy prohibiting unlawful discrimination in the
workplace and provides avenues for employees to report conduct
they believe is inappropriate. Almazan knew of the policies and
how to use them as is evidenced by the fact that she had done so
in the past.
Pepperidge Farms also maintains a drug-free workplace and
requires employees to submit to random drug testing. Employees
are selected to submit to such testing and are chosen at random
by computer. Even though no adverse employment action was ever
taken against Almazan because of the drug testing, she asserts
that she was tested more than other non-Hispanic employees.
During her employment, Plaintiff suffered a broken wrist and
was placed on light work duty. Generally, employees placed on
light work duty do not work on Saturdays or Sundays. While
injured, Almazan was not asked to work overtime on Saturdays even
though Ken Napadano ("Napadano"), a Caucasian man, was. Napadano
is a mechanical engineer and is one of the few people in the
Bakery with experience with refrigeration, heating and air
conditioning units. Napadano works for a different department
than Almazan who possesses none of those skills. On December 5, 2003 Almazan filed a complaint with the Equal
Employment Opportunity Commission ("EEOC") alleging employment
discrimination. On February 25, 2004, the EEOC issued Almazan
Notice of Right to Sue Letter. Almazan received said letter on
March 19, 2004. On May 28, 2004, within the 90 day statutory
limitation, Almazan filed the present lawsuit alleging racial
discrimination, hostile work environment, and retaliation in
violation of Title VII and Section 1981. Pepperidge Farms now
moves for summary judgment on all counts.
Summary judgment is appropriate only if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S. Ct. 2505 (1986). 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, 106 S. Ct. 2548
(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." Celotex, 477 U.S. at 325. Once the
movant has met this burden, the non-moving party cannot simply
rest on the allegations in the pleadings, but "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, 106 S. Ct. 1348 (1986); rather, "[a] genuine issue
exists when the evidence is such that a reasonable jury could
find for the non-movant." Buscaglia v. United States
25 F.3d 530, 534 (7th Cir. 1994). When reviewing the record we must draw
all reasonable inferences in favor of the non-movant; however,
"we are not required to draw every conceivable inference from the
record-only those inferences that are reasonable." Bank Leumi
Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
Almazan alleges that she was fired on account of her race,
subjected to a hostile work environment, and the victim of
Pepperidge Farms' discriminatory retaliation. All three
allegations she contends are violations of Title VII and Section
1981. Under Title VII, it is unlawful for an employer to
"discharge . . . or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's race."
42 U.S.C. § 2000e2(a)(1). Section 1981 provides that "[a]ll
persons . . . shall have the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981; Van Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467,
1472 (7th Cir. 1993). Even though "Section 1981 and Title VII
differ in the types of discrimination they proscribe, the methods
of proof and elements of the case are essentially identical."
Id. Therefore, we will analyze Almazan's Title VII and Section
1981 claims simultaneously. Lalvani v. Cook County, Ill.,
269 F.3d 785, 789 (7th Cir. 2001).
In the Seventh Circuit, it is well established that a Title
VII/Section 1981 plaintiff may show that he or she was the victim
of discrimination in the workplace "by providing direct evidence
of discrimination or by proceeding under the indirect,
"burden-shifting method" first outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See
Haywood v. Lucent Techs., Inc., 323 F.3d 524, 529 (7th Cir.
2003). The direct method allows a trier of fact to find
discriminatory conduct without inference or presumption. See
Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 783
(7th Cir. 2004). The evidence necessary to allow a plaintiff to
employ the direct method can consist of either an employer's
admission that the challenged action was the product of unlawful
discrimination or a combination of events that directly indicates
that discrimination was afoot. See id. Under the indirect
method, Almazan must first make out a prima facie case of
discrimination. Id. If Almazan can do so "through competent
evidence," the burden of production will shift to Pepperidge
Farms "to offer a permissible, noninvidious reason for the
alleged discrimination." Johnson v. Camberidge Indus., Inc.,
325 F.3d 892, 897 (2003). If Pepperidge Farms meets this burden, Almazan
"may then rebut that evidence by showing that [Pepperidge Farms']
reasons are a pretext for discrimination or that the decision was
tainted by impermissible, race-based motives. Id. The "ultimate
burden" of persuading the trier of fact that the employer
intentionally discriminated against the plaintiff "remains at all
times with the plaintiff." Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089 (1981).
Almazan alleges that she has supplied enough circumstantial
evidence to support her claims of unlawful discrimination and
retaliation under either the direct or indirect method. Therefore
we address those claims under each method. As for Almazan's
hostile work environment claim, she does not proceed under the
direct method and therefore we limit our discussion to the
adequacy of that claim under only the indirect method.
A. Counts I & II Alleging Unlawful Termination
Almazan contends that she has supplied adequate circumstantial
evidence to support a claim for unlawful termination under the
direct method. Essentially, Almazan asserts that the combination
of the short time period that elapsed between when she made her
discrimination complaint and the time of her termination directly
establish a discriminatory motive. Despite Almazan's arguments,
this is far from the "convincing mosaic" necessary to point directly to unlawful
motivations behind Pepperidge Farms' action. Troupe v. May
Dep't. Stores, 20 F.3d 734, 737 (7th Cir. 1994). For that reason
we turn our discussion to whether Almazan's claim survives under
the indirect method.
To establish a prima facie case of race discrimination in a
termination case, Almazan must show: "(1) [s]he was a member of a
protected class; (2) [s]he was meeting [Pepperidge Farms']
legitimate expectations; (3) [s]he suffered an adverse employment
action; and (4) other similarly situated employees who were not
members of [her] protected class were treated more favorably."
Davis, 368 F.3d at 783 (internal quotation and citation
omitted). As a Hispanic woman of Mexican origin, it is undisputed
that Almazan is a member of a protected class and that she
suffered an adverse employment action. The main elements at issue
are: whether she was meeting Pepperidge Farms' legitimate
expectations and whether she was treated differently than
similarly situated employees.
1.) Legitimate Expectations
First, Almazan asserts that she was singled out in her
termination and consequently should not have to prove that she
was meeting Pepperidge Farms' legitimate expectations. To support
her argument, Almazan relies upon Flores v. Preferred Technical
Group, 182 F.3d 512, 515 (7th Cir. 1999), and Oest v. Ill.
Dep't of Corr., 240 F.3d 605, 612 (7th Cir. 2001), to assert that the
proper inquiry is whether she was treated more harshly than other
individuals who violated similar rules. Almazan, however, was not
"singled out for discipline" as were the plaintiffs in Flores
and Oest. The undisputed facts show that other employees who
stole from the cafeteria were also terminated. Further, Almazan
is Hispanic; the other terminated employees were either
African-American or Caucasian. Consequently, Almazan was not
singled out on account of her race, and therefore must prove that
she was meeting Pepperidge Farms' legitimate expectations.
In an attempt to argue that she was meeting Pepperidge Farms'
legitimate expectations, Almazan sets forth her work history,
which she contends was not considered in her termination.
However, "the question is not whether at any time in [Almazan]'s
employment [she] was meeting [her] employer's expectations; the
question is whether [she] was meeting [her] employer's
expectations at the time [she] was terminated." Peters v.
Renaissance Hotel Operating Co. 307 F.3d 535, 546-547 (7th Cir.
2002) (relying on Karazanos v. Navistar Int'l Transp. Corp.,
948 F.2d 332, 336 (7th Cir. 1991)). At the time Almazon was
terminated, as is generally the case, Pepperidge Farms'
expectation was that its employees would refrain from stealing
cafeteria items without paying for them. See Bituin v.
Supervalu, Holdings, Inc., 274 F. Supp.2d 977, 981 (C.D. Ill.
2003). It is undisputed that Almazan knew she could be fired for theft and that she did in fact take cafeteria items
without paying for them. Consequently, it is obvious that she was
not meeting Pepperidge Farms' legitimate expectation.
2.) Similarly Situated Employees
Almazan also fails to establish that she was treated less
favorably than similarly situated employees. The burden is on
Almazan "to establish the similarity between [herself] and the
proposed comparable employees." See Radue v. Kimberly-Clark,
219 F.3d 612, 618 (7th Cir. 2000). Specifically, in disciplinary
cases, where a plaintiff claims:
. . . that she was disciplined by her employer more
harshly than a similarly situated employee based on
some prohibited reason a plaintiff must show that
[s]he is similarly situated with respect to
performance, qualifications and conduct. This
normally entails a showing that the two employees
dealt with the same supervisor, were subject to the
same standards, and had engaged in similar conduct
without such differentiating or mitigating
circumstances as would distinguish their conduct or
the employer's treatment of them."
Id. at 617-18 (internal citations omitted).
In the present case, Almazan attempts to broaden the inquiry
from those similarly situated employees accused of theft to those
accused of being dishonest in some fashion. She points to three
other employees she alleges were somehow dishonest in conducting
their work yet were not discharged for their alleged dishonesty. However, even if Almazan's allegations concerning these
individuals' activities are true, their conduct is not comparable
to her's. She does not point to any employee(s) who, like her,
were believed to be stealing from the cafeteria and failed to
give any exculpatory information that were not fired as a result.
Pepperidge Farms, on the other hand, points to four additional
non-Hispanic employees accused of stealing from the cafeteria who
were terminated as a result. She also argues that Pepperidge
Farms discriminated against her by alleging that Napadano was
given more overtime then she was. However, the facts show that
not only was she suffering from a wrist injury, but Napadano
possessed different skills and worked in an entirely different
department. Therefore, her arguments are unpersuasive.
Consequently, we do not believe that Almazan has met her burden
of identifying similarly situated individuals who were treated
more favorably than she was.
Almazan's attempt to establish a prima facie case for
unlawful discrimination fails because she is unable to show that
she was meeting Pepperidge Farms' legitimate expectations and
that Pepperidge Farms treated similarly situated employees more
favorably. Even if she could prove these elements of a prima
facie case, she fails to show that Pepperidge Farms' reasoning
for their decision to terminate her, the alleged theft, was a
pretext for discrimination. Consequently, Pepperidge Farms'
motion as to summary judgment is appropriate for Almazan's
unlawful termination claims. B. Counts V and VI Alleging Retaliation
Almazan also contends that she has put forth ample evidence to
support her retaliation claim under the direct method. The gist
of her argument is that Pepperidge Farms terminated her
employment in retaliation for her complaining about department
head, Paglia, to Downing. Under the direct method, Almazan must
establish: "(1) she engaged in statutorily protected activity;
(2) she suffered an adverse employment action taken by the
employer; and (3) a causal connection between the two." Moser v.
Ind. Dep't of Corrs., 406 F.3d 895, 903 (C.A.7 (Ind.),2005)
(relying on Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 728
(7th Cir. 2003). It is undisputed that Almazan suffered an
adverse employment action. Therefore the main elements at issue
are: whether Almazan engaged in statutorily protected activity
and whether there is a causal connection between her alleged
statutorily protected activity and the adverse employment action.
1. Statutorily Protected Activity
To constitute statutorily protected activity, an employee's
complaint must at least suggest to the employer (if not state
outright) that the employee reasonably believes she is being
treated in a discriminatory manner because of her race or other
protected classification. See Gleason v. Mesirow Fin., Inc.,
118 F.3d 1134, 1146-47 (7th Cir. 1997). Essentially, Pepperidge
Farms submits that Almazan's comments did not adequately place Pepperidge Farms on notice of her
discrimination claim. Pepperidge Farms suggests that, due to
Almazan's limits in speaking the English language, they were not
aware that she was filing a claim. We conclude that it is
reasonable to infer that Pepperidge Farms would have been placed
on notice of Almazan having filed a claim despite her limitations
speaking English. It is a reasonable inference because a Human
Resources Manager, such as Downing, would likely think that a
claim was being filed where an Hispanic woman with difficulty
speaking English indicates that she feels "singled out" and
discriminated against. Consequently, in drawing such a reasonable
inference, we find that Almazan has adequately shown that she
engaged in statutorily protected activity.
To prove causation, Almazan must show that Pepperidge Farms
would not have taken the adverse employment action "but for" her
protected activity. Wells v. Unisource Worldwide, Inc.,
289 F.3d 1001, 1008 (7th Cir. 2002). Almazan relies on the timing of
the events and Downing's proximity to the decision in her attempt
to establish the causation link.
First, Almazan suggests that there was a short period of time,
approximately one month, between when she made her complaint to
Downing and her termination, which she alleges is direct evidence
of discrimination. However, the evidence does not support her contention that the time period between her meeting
with Downing and her termination was as short as she indicates.
Actually, the evidence shows that there was approximately 2 years
between those events. This timing is hardly suspicious, and even
if it was, suspicious timing alone is rarely sufficient to create
a triable issue. See Stone v. City of Indianapolis Pub. Util.
Div., 281 F.3d 640, 644 (7th Cir. 2002). Because the alleged
theft occurred in conjunction with Almazan's termination, we do
not feel as though the timing of Almazan's termination is
suspicious, let alone direct evidence of retaliation.
Almazan also attempts to establish a line of causation through
inference. Coupled with her suspicious timing argument, Almazan
asserts that Downing was both the person she made her complaint
to and was informed of Bloomquist's investigation prior to her
termination. This, she claims, results in an inference that the
decision to terminate her employment resulted from her
discrimination complaint. Almazan's argument is fatally flawed.
In her 56.1 Statement of Facts, Almazan stipulates that: 1)
Downing played no part in the decision to terminate her
employment and 2) that neither Bloomquist nor Caton, the ultimate
decision-maker, knew of her complaint prior to the termination
decision as is required by the Seventh Circuit. See Luckie v.
Ameritech Corp., 389 F.3d 708, 414 (7th Cir. 2004). In so
stipulating, Almazan destroys any support for her argument which
fails to raise even a metaphysical doubt as to the material facts. Therefore, even in the light most
favorable to her, there is simply no evidence in the record to
support her retaliation claim under the direct method.
Similarly, Almazan's retaliation claim fails under the indirect
method. In order to set forth a prima facie case indirect
retaliation, Almazan must show: (1) she engaged in statutorily
protected activity; (2) she was performing her job according to
Pepperidge Farms' legitimate expectations; (3) despite her
satisfactory performance, she suffered an adverse employment
action; and (4) she was treated less favorably than similarly
situated employees who did not engage in statutorily protected
activity. Stone, 281 F.3d at 644. As mentioned in our
discussion of Almazan's unlawful termination claims, the record
does not support that she was meeting Pepperidge Farms'
legitimate expectations. In addition, Almazan fails to sets forth
any similarly situated employees who did not engage in the same
protected activity who were treated more favorably than she was.
Consequently, Pepperidge Farm's request for summary judgment is
proper as to Almazan's retaliation.
C. Counts III and IV Alleging Hostile Work Environment
Although Almazon did not respond to Pepperidge Farms's motion
for summary judgment as to counts III and IV, alleging that she
was subjected to harassment which resulted in a hostile work
environment, discussion is warranted under the indirect method as to these claims. In order to establish a prima facie
case of hostile work environment, Almazan must show: (1) she was
subjected to unwelcome harassment; (2) the harassment was based
on her membership in a protected class; (3) the harassment had
the effect of unreasonably interfering with her work performance
by creating an intimidating, hostile or offensive working
environment that seriously affected her psychological well-being;
and (4) a basis for employer liability. Parkins v. Civil
Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).
It is readily apparent that summary judgment is appropriate as
to counts III and IV because Almazan fails to establish that the
alleged harassment resulted in a hostile work environment. To
prove "hostile work environment," the alleged harassment must be
"both subjectively and objectively so severe or pervasive as to
alter the conditions of her employment and create an abusive
working environment." Wyninger v. New Venture Gear, Inc.,
361 F.3d 965, 975 (7th Cir. 2004). "In determining whether the
environment was objectively hostile, a court must consider all of
the circumstances, including the frequency and severity of
conduct, whether it is threatening and/or humiliating or merely
offensive, and whether the harassment unreasonably interferes
with an employee's work." Id. at 975-76. The threshold for
Almazan is high, as "[t]he workplace that is actionable is one
that is `hellish.'" Perry v. Harris Chernin, Inc.,
126 F.3d 1010, 1013 (7th Cir. 1997). In arguing her hostile work
environment claim, Almazan points to the meeting and lack of interaction she had
with Paglia and her assertion that she believes that she was
subjected to more drug testing despite failing to supply any
other supporting evidence. This does not support Almazan's notion
that she was subjected to harassment, and even if it did, she
fails to show that her work environment was hostile. It may
indicate that Almazan was dissatisfied or unhappy with her
employer, but fails to come close to showing that her work
environment was "hellish" as is required. Consequently,
Pepperidge Farms' request for summary judgement is appropriate on
Almazan's hostile work environment claims.
For the reasons set forth above, Pepperidge Farm's motion for
summary judgment is granted.
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