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Salgado v. B and B Maintenance

January 5, 2009

DARCEDALIA SALGADO, PLAINTIFF,
v.
B AND B MAINTENANCE, INC., DEFENDANT.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Darcedalia Salgado was suspended for five days and lost her day-time shift as a custodian at B and B Maintenance, Inc., after she used a client's phone for a personal call. Salgado, who was seven months' pregnant at the time, claims that B and B discriminated against her because of her pregnancy, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. B and B has filed a motion for summary judgment. For the following reasons, the motion is GRANTED.

I. FACTS

B and B is a janitorial and window-cleaning service that contracts with businesses in the Chicagoland area. (R.24, Facts ¶¶2, 4.) Salgado worked for B and B from April 1997 until December 2006. (Id. ¶1.) She started with nighttime cleaning duties at banks and a printing company until 1999, when she began receiving day-shift assignments at various Motorola offices in Illinois. (Id. ¶¶10-11.)

From around 2004 until her suspension in 2006, Salgado worked at Motorola's corporate headquarters in Schaumburg, dividing her shift between cleaning and working in the mailroom. (Id. ¶¶1, 6, 18.) Jones Lang LaSalle Americas, Inc. ("JLL") negotiated on behalf of Motorola the maintenance contract with B and B. (Id. ¶6.) Under the contract, JLL could demand the removal of any B and B employee "whose presence the Property Manager deems, in its sole discretion, to be detrimental to the best interests of the Property." (Id. ¶7.)

Victor Gallegos, B and B's district manager for Motorola's Schaumburg and Arlington Heights facilities, was charged with assigning and monitoring the work there, and B and B supervisors at those facilities would report to him. (Id. ¶14.) Gallegos, in turn, would report to Jim Weil, B and B's director of operations. (Id. ¶16.)

In May 2006, Gallegos gave Salgado a positive review and recommended her for a raise. Russ Meyer, human resources director at B and B, approved the raise, from $10 to $10.50 hourly. (Id. ¶20.)

By December 2006, Salgado was seven months' pregnant; it was physically obvious, and Gallegos was aware of it. (Id. ¶21; R.38, Add'l Facts ¶78; R.43, Resp. to Add'l Facts ¶78.) Nevertheless, Salgado had not yet requested maternity leave or made any arrangements for a leave of absence. (R.24, Facts ¶21.) This was her second pregnancy while working at B and B; when she was pregnant in 2001, she requested and received three months' maternity leave, after which she returned to work. (Id. ¶12.) Other B and B employees-Monica Martinez, Martha Olivera, and Anna Nava-also have taken leave and returned to work after pregnancies. (Id. ¶65.)

B and B's Policy Regarding Use of Clients' Phones

According to the declarations of Gallegos, Weil, and Meyer, B and B forbids on-duty employees from using a client's phone for personal reasons without a supervisor's permission.

(R.24, Facts ¶8.) But the parties dispute whether that policy was communicated or enforced. Gallegos says he communicated the policy "several times per year" during all-employee meetings. (Id.) B and B has not submitted a written copy of the policy, though, and it is not included in B and B's "Employee Handbook." (R.38, Add'l Facts ¶111.) Salgado testified, moreover, that while she was aware of a prohibition on the use of personal cell-phones, she was not told, nor had she heard of others being told, that an employee could not use a client's phone for personal reasons. (R.38, Resp. to Facts ¶8, Add'l Facts 108, Exh. A. at 44-45.) Salgado says other employees-including Martin Herrera and Andy Zuk-used Motorola's phones, and that Gloria Barcenas, the employee whom Salgado replaced, told her that she could use them. (R.38, Add'l Facts ¶¶98-99, 109.) B and B responds only that there is no evidence that any supervisors or managers knew of or allowed the use of those phones for personal purposes without a supervisor's approval. (R.43, Resp. to Add'l Facts ¶¶76, 90.)

There is also no evidence that B and B ever enforced its purported policy. Juan Salgado, Salgado's husband and a former B and B supervisor, says that he was never informed of the policy. And Victor Brito-Arroyo, a former B and B employee who worked at Motorola's Schaumburg campus from 2002 to 2007, says that B and B employees, including himself, regularly would use Motorola's phones for personal reasons without asking permission, that supervisors would see the employees using the phones, and that he never heard of anyone getting in trouble for doing so. (Id. ¶¶76, 112-13, Exh. B. at 38-42.) Indeed, although employees have been disciplined for using their own cell-phones, or using a cell-phone left on a client's desk, there is no evidence that B and B has ever disciplined an employee for using Motorola's (or any other client's) phones for personal reasons. (Cf. R.25, App'x to Facts, Tab D at ¶10, Tab F at ¶15, Tab F2; R. 24, Facts ¶9.) Because there are no public phones at Motorola's Schaumburg campus, moreover, B and B expected its employees to use Motorola's phones for work-related reasons, including responding to pages from B and B and "punching-in" at the beginning and end of a shift. (R.38, Add'l Facts ¶¶63-64, 77, 90, 94, 110.)

Salgado's Use of Motorola's Phones in November and December 2006 B and B's employees work in clients' buildings, and the clients may have their own expectations for the employees. According to Kristen Hamnik, JLL's national strategic sourcing manager, Motorola executives informed her on several occasions that they did not want contractor employees using phones at the security counter of Motorola's Schaumburg headquarters because, they said, it did not convey a professional image. Thus, Hamnik says she told B and B to inform its employees not to use those phones. (R.24, Facts ¶23.) The parties dispute whether B and B did so.

In November 2006, Hamnik observed a B and B employee using a phone at the security counter of Motorola's Schaumburg headquarters. (Id. ¶22.) She called Weil to tell him and to reiterate that Motorola did not want B and B personnel to use those phones. Weil responded that it would not happen again. (Id. ¶24.) Based on the time and location of the ...


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