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United States District Court, N.D. Illinois, Eastern Division

November 4, 2005.


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 employment termination.

  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 occurred.

  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 Canton's decision.

  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.

  2. Causation

  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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