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Gomez v. Allied Security Services

July 18, 2006

ERNEST A. GOMEZ, PLAINTIFF,
v.
ALLIED SECURITY SERVICES, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Ernest Gomez worked for Defendant Allied Security Services ("Allied") at two different locations over an eight-month period ending in May 2004. In this suit, Gomez contends that Allied failed to provide training, transferred him, and ultimately discharged him, on the basis of his national origin. Allied now moves for summary judgment and, for the reasons presented here, the motion is granted.

FACTS

Plaintiff initially applied for a management position with Allied on July 21, 2003. (Def.'s 56.1 ¶¶ 5,6.)*fn1 He was not hired at that time, but John Borgens, Allied's Human Resources Manager, retained his resume. (Id. ¶ 7.) The following month, when Allied entered into a contract to provide security at the Museum of Science and Industry ("Museum"), Borgens called Plaintiff to interview for a position as Operations Manager for security at the Museum. (Id. ¶ 11.) Plaintiff interviewed with Peter Moreau, the account manager for the Museum account, and with Mark Anderson, who worked for Defendant as a "transition manager" but later went to work directly for the company that managed the Museum. (Id. ¶¶ 12, 13.) Moreau testified that the decision to hire Plaintiff was his; Mark Anderson participated in the interview because, Moreau explained, Anderson just "want[ed] to meet the guy . . . to make sure that there are no glaring errors that [Moreau] missed." (PI. 56.1 ¶ 111*fn2 , citing Moreau Dep. at 56.) Moreau chose Plaintiff for the position on the strength of his leadership and management experience, and based on Moreau's perception that Plaintiff was "willing to take ownership" of the project and was not one to play "political games." (PI. 56.1 ¶¶ 110, 112.) According to Plaintiff, Moreau told him he was a desirable candidate because he "looked white" and "talked white" but is in fact a member of a minority group. (Id. ¶ 113, citing Gomez Dep. at 155--56.)

Plaintiff accepted Moreau's offer of the position as Operations Manager at the Museum beginning on September 1, 2003, reporting to both Mark Anderson and Peter Moreau, at a rate of pay negotiated between Allied and the Museum. (Def. 56.1 ¶¶ 14--17.) Moreau himself reported to Anderson and to Tony Simmons, Allied's Vice President of Operations for the Chicago Region (id. ¶ 21)*fn3 ; four managers reported to Plaintiff. (Id. ¶ 23.)

A. Plaintiff's Performance at the Museum

Operationally, Plaintiff's performance was exceptional. (Id. ¶ 24.) Moreau testified that "[w]hen it came to getting stuff done, [Plaintiff] took ownership," and John Borgens called Plaintiff's performance "perfect." (PI. 56.1 ¶¶ 116, 117.) Borgens recalled that Greg Prather, the Director of Facilities for the Museum's property management firm "loved [Plaintiff] and said he did a great job." (Id. ¶ 117, citing Borgens Dep. at 36.) Moreau received a few complaints about Plaintiff's temper and believed Plaintiff had a tendency to "rub people wrong," (Def.'s 56.1 ¶¶ 25, 26), but in Tony Simmons's view, Plaintiff's temper was not "anything that was out of the norm." (PI. 56.1 ¶ 118, citing Simmons Dep. at 26.) Moreau learned that Plaintiff had occasionally gone over his (Moreau's) head to discuss issues directly with Simmons or with Museum staff, and he discussed the issue with Simmons. (Def.'s 56.1 ¶¶ 27,28.) Again, however, Simmons did not take this as a serious matter. (Pl. 56.1 ¶ 119.) Simmons testified that he recalled hearing at some point about an incident in which Plaintiff had raised a question about Peter Moreau's performance with Allied's client. (Simmons Dep. at 26.) Simmons interpreted the incident as evidence that Plaintiff "is ready for promotion and he's jumping at the bit to get his next step and to get his opportunity, and maybe a little too overeager," but he did not "take it as anything that was negative." (Id. at 28.) In fact, Simmons testified that Plaintiff "was certainly someone that . . . we had our eye on" for promotion, as he had, in Simmons's words, "the degree, he had the police background, he had the management presence." (Def.'s 56.1 ¶¶ 29, 30.) Plaintiff disputes that he was targeted for promotion, but the only evidence he cites is his own testimony that Simmons had hired or promoted other workers, (Pl. 56.1 Resp. ¶¶ 29, 30, citing Gomez Dep. at 90-92), and it is undisputed that Simmons discussed the possibility of promoting Plaintiff with other area managers on more than one occasion. (Def. 56.1 ¶ 31.)

During the time that Plaintiff was working at the Museum, Simmons did in fact offer him a position as Account Manager at another facility serviced by Allied, the Boeing building. (Id. ¶ 32.) The Account Manager position is generally a higher-level position within the Allied hierarchy than Operations Manager, but the Boeing building is much smaller than the Museum, the Account Manager at that facility managed a smaller staff than did Plaintiff, and the pay-a function of Allied's negotiation with its client at each location-was almost $10,000 less than what he was earning at the Museum. (Id. ¶¶ 33, 34.)*fn4 Plaintiff testified that he asked Simmons "if they [Allied] were trying to get rid of him," and Simmons replied, "No, we're not trying to get rid of you. But we can use you over there for this account." (Gomez Dep. at 192.) Plaintiff told Simmons, "Tony, respectfully I'm going to have to decline." Simmons responded by telling Plaintiff he understood the decision, but inviting Plaintiff to "get back to him in a couple of days" if he should change his mind. (Gomez Dep. at 193.) Simmons went on to assure Plaintiff that Allied did not "want to lose a good guy like [Plaintiff] over at the Museum" because Plaintiff had "been doing a good job training [his] subordinates." (Def. 56.1 ¶¶ 37, 38; Gomez Dep. at 192--93.)

B. April 2004 Incident

In April 2004, a female Museum employee contacted Plaintiff and reported a dispute with a security officer. (Def. 56.1 ¶ 39.) Plaintiff initially spoke with both the Museum employee and the security officer. He then called the Museum's guest services manager to assist in resolving the problem.(Id. ¶ 40.) After the guest services manager arrived, he and Plaintiff placed the feuding employees in separate rooms. (Id. ¶ 42.) While Plaintiff was speaking to the female Museum employee, she swore at him several times. After what he characterized as "some beration" and her own repeated use of "F words," Plaintiff told her, "Don't fucking speak to me that way." (Id. ¶¶ 43, 44; Gomez Dep. at 141--42.) At some point thereafter, Gary Simmons received a phone report concerning an incident in which Plaintiff had cursed at a Museum employee; Simmons accepted the Museum's invitation to participate in an investigation of the incident. (Def. 56.1 ¶ 45.)

Within a few days afterwards, Simmons called Plaintiff in to a meeting at which he admitted using foul language with the female Museum employee. (Id. ¶ 47.) Plaintiff claims Simmons told him he believed Plaintiff had lied about the incident, but the page of his own deposition that he cites makes no mention of any such belief (PI. 56.1 ¶ 137, citing Gomez. Dep. at 179), and Simmons himself testified that Plaintiff "basically substantiated that he had acted inappropriately." (Simmons Dep. at 30.) Simmons testified, further, that the Museum had a policy of "zero tolerance for someone losing their temper and . . . cursing, whether it's at an employee or in a conversation with an employee." (Id.) Accordingly, Simmons testified he recognized that Plaintiff would have to be removed from his position at the Museum. (Simmons Dep. at 30--31.) Plaintiff disputes Simmons's assertion that the Museum had any such "zero tolerance" policy, (Pl. Resp. ¶¶ 48-50), but the only evidence he cites is Moreau's testimony that Moreau is not aware that the female Museum employee was herself disciplined, and that the Museum's "zero tolerance" policy had never before "been used on management personnel." (Moreau Dep. at 71, 72.) Moreau in fact explained that the policy had "only been used on floor staff because that's the only violations that we were aware of at the time." (Id. at 71.) There is no indication in the record whether the female employee's use of profanity was brought to the attention of her own managers. Plaintiff contends that Moreau described Plaintiff's meeting with the female employee as "minority against minority," (Gomez Dep. at 151); he does not say where or when Moreau made this statement, and Moreau testified that it never occurred to him that Plaintiff's and the female employee's minority status "made a difference." (Moreau Dep. at 94.)

Simmons removed Plaintiff from his position at the Museum on April 23, 2004, a decision Defendant characterizes as a suspension. (Def. 56.1 ¶ 52.; Simmons Dep. at 34--35.) Plaintiff recalls being told "in no uncertain terms . . . that [he] was fired", not suspended. (PI. 56.1¶ 138; Gomez Dep. at 179). It is undisputed, however, that Simmons required Plaintiff to attend a course on dealing with stressful situations (Def. 56.1 ¶ 53), a course that presumably would not have been necessary had Plaintiff been permanently discharged. In any event, just a few days later, Simmons decided the one-week suspension was harsh in light of the circumstances and called Plaintiff back to work in a position as Account Manager at the Sears Tower, another Allied account. (Def. 56.1 ¶ 55.) When Peter Moreau called Plaintiff, Plaintiff found the decision confusing but was excited and happy and told Moreau he had "made [his] day." (PI. 56.1 ¶ 159; Def. 56.1 ¶58; Gomez Dep. at 176--77, 198.) Plaintiff noted in his deposition testimony that the job was his family's sole source of income. (Gomez Dep. at 197.) He had been earning $45,000 annually in his position at the Museum; the Account Manager position at the Sears Tower paid "40 and change . . . with a potential bonus." (Id. at 199.)

C. Plaintiff's Tenure as Account Manager at the Sears Tower

It appears from the record that Allied was engaged in continuing negotiations with the new owner of the Sears Tower for the security services contract. Plaintiff testified that security costs were a "budget number" for the building owner and that because Allied "wanted this [the Sears Tower contract] as a flagship for [its] Chicago office," Allied "had to go in with a low margin." (Def. 56.1 ¶ 60, 62; Gomez Dep. at 221.) Plaintiff understood that he was to look for ways to "save the client some money." (Gomez Dep. at 231.) He also understood that Tony Simmons expected him to maintain the security program at the Sears Tower during its transition to new ownership. (Id.) Simmons told Plaintiff there was a "tenuous situation . . . between the existing security and [Allied] security," and that Plaintiff's role was to "get in there, figure out what could be done, and then report to him." (Id. at 232; Def. 56.1 ¶ 65.)

Because there was at the Sears Tower no security manager (the person with whom an Allied account manager would ordinarily have direct contact), Simmons wanted Plaintiff to "distance himself" from client communication and "run just the security part of the process." (Def. 56.1 ¶ 71; Simmons Dep at 57.) He directed Plaintiff to refer any client inquiries to him and to avoid having any discussions with the building's new managers concerning Allied's services or building security policies. (Def. 56.1 ¶ 70; Gomez Dep. at 235.) If someone asked Plaintiff something about security, Simmons instructed, Plaintiff was to refer that inquiry to Simmons. (Def. 56.1 ¶ 66.) When Plaintiff questioned Simmons about why he was not being included in meetings with the Sears Tower's new owners, Simmons told him that these meetings were ...


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