Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smiecinski v. New Age Transportation

October 15, 2008


The opinion of the court was delivered by: Chief Judge James F. Holderman


Josephine M. Smiecinski filed this lawsuit under Title VII of the Civil Rights Act of 1964 against her former employer, New Age Transportation, Distribution and Warehousing, Inc. ("New Age"), alleging that she had been sexually harassed while working at New Age and that New Age fired her because she complained about the harassment. Smiecinski subsequently dismissed her sexual harassment claim. Before the court now is New Age's motion for summary judgment on Smiecinski's retaliation claim [53]. For the reasons stated herein, that motion is granted.


In ruling on a motion for summary judgment, this court must consider the facts before it in a light most favorable to the non-moving party, drawing all reasonable inferences and resolving all doubts in the non-moving party's favor. Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). Therefore, in considering New Age's motion the court will review the facts properly before it and draw all reasonable inferences in Smiecinski's favor.

Smiecinski was employed by New Age as a call center representative from September 13, 2004, to September 29, 2004. (Pl.'s Resp. to Def.'s L.R. 56.1 Stmt. ¶¶ 4, 7.) As a new employee, Smiecinski received and read a copy of New Age's Employee Handbook. (Id. ¶ 9.) Smiecinski also received and signed a copy of New Age's Telecommunications Policy, which instructed employees that the company's "voicemail, computer equipment, computer software, fax machines and peripherals are to be used for business purposes only . . . ." (Id. ¶ 10.) Smiecinski received training on how to perform her job as a call center representative from Shannon Thornton and Matt Conrad. (Id. ¶¶ 15, 16.)

On September 27, 2004, Smiecinski received access to New Age's e-mail system. (Id. ¶ 17.) Smiecinski immediately began sending and receiving e-mails, which by her own admission, did not concern New Age business. (Id. ¶ 18.) Smiecinski sent no fewer than eighty personal e-mails from the time she received e-mail access on September 27, 2004, to the end of her shift on September 28, 2004. (Id., Ex. A.)

On September 28, 2004, Smiecinski received her 14-day evaluation from Diane Canoy, Smiecinski's manager, and Anita Kennedy, New Age's human resources manager. (Id. ¶¶ 11, 20; Pl.'s L.R. 56.1 Stmt. ¶ 21.) Canoy and Kennedy's evaluation of Smiecinski was generally positive, but Canoy and Kennedy did not know of Smiecinski's misuse of New Age's e-mail system at that time. (Pl.'s Resp. to Def.'s L.R. 56.1 Stmt. ¶¶ 20, 22.) During the evaluation, Canoy and Kennedy asked Smiecinski whether she felt comfortable working at New Age. (Id. ¶ 23.) Smiecinski responded that, "Matt [Conrad] creeps me out. He makes me feel uncomfortable in general. I'm always rushing, because I feel like he's always looking over my shoulder. Shannon has also noticed that he's been looking at me." (Id. ¶ 25.) Smiecinski also told Canoy and Kennedy that Conrad had been staring at her, looked down her shirt, and "pressed down on her thigh as he was training her." (Pl.'s L.R. 56.1 Stmt. ¶ 30.) After discussing Smiecinski's evaluation and her complaints about Conrad, Canoy and Kennedy asked Smiecinski if there was anything they could do to make her feel more comfortable. (Pl.'s Resp. to Def.'s L.R. 56.1 Stmt. ¶ 30.) Canoy and Kennedy also instructed Smiecinski "not to discuss these issues with anyone." (Id. ¶¶ 41, 43.)

Upon returning to her station, Smiecinski immediately sent an e-mail to Thornton, stating:

You must delete this once read. . . . I talked to Diane and Anita about the issue w/ him but I'm no longer to discuss it with you because I told them that I've been talking to you about it too and that you noticed things as well staring at me. . . . (Id. ¶ 42; Smiecinski Dep. Ex. 13.) Smiecinski followed up in a second e-mail:

I have to trust them that they'll take care of it so I don't know what they are going to do????? (Pl.'s L.R. 56.1 Stmt. ¶ 31; Smiecinski Dep. Ex. 13.) Smiecinski admitted that the e-mails referred to what she had discussed with Canoy and Kennedy and that she had, indeed, conveyed to Thornton some of the information discussed during the meeting. (Pl.'s Resp. to Def.'s L.R. 56.1 Stmt. ¶ 44.) Smiecinski also admitted that she included the words, "You must delete this once read," because she did not want New Age to see the e-mail. (Id. ¶ 46.)

On the evening of September 28, 2004, Canoy checked the e-mails of New Age's two most recent hires, one of which was Smiecinski. (Id. ¶¶ 48, 50.) Canoy explained at her deposition that it is New Age's practice to randomly check the e-mails of new employees during their first 30 days of employment to ensure compliance with New Age's telecommunications policy. (Id. ¶ 47.) Canoy also explained that she had received information that one of New Age's customers had received personal e-mails from unknown employees of New Age, and so she felt obligated to investigate the source of the e-mails. (Id. ¶ 49.) When Canoy pulled Smiecinski's e-mails, Canoy found "a multitude of personal e-mails sent to and from [Smiecinski] in just the two days [Smiecinski] had e-mail access." (Id. ¶ 52.) Smiecinski's e-mails included many personal e-mails, including the "delete this once read" e-mail described above. (Id. ¶ 53.) That e-mail caused Canoy concern because it showed that Smiecinski had violated Canoy and Kennedy's instruction that Smiecinski not discuss with anyone the subject of their meeting. (Id. ¶ 54.) Canoy showed the e-mails to Kennedy. (Id. ¶ 55.)

After reviewing Smiecinski's e-mails, Kennedy concluded that Smiecinski had not only been insubordinate but that she had violated New Age's telecommunications policy. (Id. ¶ 56.) Kennedy then presented the e-mails to New Age's Vice President, Jennifer Talley, and President, Carolyn Gable. (Id. ¶¶ 6, 57, 58; Pl.'s L.R. 56.1 Stmt. ¶ 15.) Kennedy explained to Talley and Gable that Smiecinski specifically had been instructed not to discuss with anyone the issues discussed during her 14-day evaluation and that Smiecinski's e-mails revealed that she immediately violated the instruction. (Pl.'s Resp. to Def.'s L.R. 56.1 Stmt. ¶ 62.) Gable first inquired about whether the issue with Conrad had been resolved, and Kennedy assured Gable that it had. (Id. ¶¶ 59, 60.) Gable next noted that New Age needed employees it could trust, Smiecinski had been employed by New Age for only thirteen days, Smiecinski had shown herself to be untrustworthy by disregarding Canoy and Kennedy's instruction, and Smiecinski had violated New Age's policy on e-mails. (Id. ¶ 63.) Gable then decided that Smiecinski's employment with New Age "wasn't working out" and that it was appropriate to terminate Smiecinski based on her insubordination and violation of company policy. (Id. ¶¶ 64, 66.)

Smiecinski's employment with New Age was terminated on September 29, 2004. (Id. ¶ 66.) Smiecinski's termination notice stated that Smiecinski was terminated because of a "disregard for policy and direction from supervisor." (Id., Ex. B.) New Age's attorney in a subsequent, related proceeding before the Illinois Department of Human Rights also noted that:

New Age wants to emphasize that the Complainant was not discharged for her abuse of email . . . . Her discharge was for her specific disregard for the directions given to her by her supervisor during her employee review on September 28, 2004, as well as her disregard for company policy. She would not have been terminated solely for the email usage. Rather she was terminated because she was told not to discuss her ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.