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Mirza v. Neiman Marcus Group

May 6, 2009

GUL-E-RANA MIRZA PLAINTIFF,
v.
THE NEIMAN MARCUS GROUP, INC., DEFENDANT.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This case arises out of Plaintiff, Gul-E-Rana Mirza' s ("Mirza") complaint [1, 12] brought against Defendant, Neiman Marcus Group, Inc. ("Neiman Marcus"). The complaint alleges that Defendant engaged in discrimination based on color, national origin, race, and religion. The complaint further alleges that Defendant terminated Plaintiff's employment, failed reasonably to accommodate her religion, failed to stop harassment, and retaliated against Plaintiff for asserting protected rights, all in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) ("Title VII" or "the Act").*fn1 Currently before the Court is Defendant' s motion for summary judgment [43]. For the reasons set forth below, Defendant' s motion is granted in part and denied in part.

I. Procedural Background

Prior to initiating the instant action, Mirza filed a charge of discrimination with the Equal Opportunity Commission ("EEOC") on December 6, 2004, checking the appropriate boxes for alleging discrimination based on religion and on national origin. She was issued a final decision and right to sue letter from the EEOC [10] on August 22, 2006. Precisely when she received that letter is open to some debate (whose conclusion will be reached at the next status hearing). Plaintiff filed her complaint in federal court pro se, but Judge Shadur, to whom the case initially was assigned, appointed counsel to represent Plaintiff [11].

Neiman Marcus' s answer [16] denies that it discriminated against Plaintiff and contends that "[a]ll employment actions taken towards Plaintiff by Defendant were based on legitimate, non-discriminatory reasons." Answer at 6.

II. Factual Background

The Court takes the relevant facts primarily from the parties'respective Local Rule ("L.R.") 56.1 statements of material fact: Defendant' s Statement of Facts ("Def. SOF") [45],

Plaintiff's Response to Defendant' s Statement of Facts ("Pl. Resp. Def. SOF") [51], Plaintiff's Statement of Additional Facts ("Pl. SOAF") [51], and Defendant' s Response to Plaintiff's Statement of Additional Facts ("Def. Resp. Pl. SOAF") [53].*fn2 Both parties constructed their fact statements as capsule summaries of the deposition testimony rather than undisputed facts about the events that led to Plaintiff's lawsuit. Where Defendant' s fact statements merely describe Plaintiff's deposition testimony, the Court construes that deposition testimony as undisputed fact (at least in the absence of contradictory fact statements). Cf. Saxton v. AT&T, 10 F.3d 526, 528 n.2 (7th Cir. 1993) (construing statement of facts using the word "alleged" as undisputed facts). Plaintiff is a Muslim woman of Pakistani descent, who worked at a Neiman Marcus store in Oak Brook, Illinois. (Def. SOF ¶¶ 1-2.) Plaintiff worked as a sales associate in the Intimate Apparel department from June 30, 2003, to May 14, 2004. (Pl. Dep. at 16.) The record evidence indicates that Plaintiff was the only Pakistani and the only Muslim employee in the department.*fn3 (Pl. SOAF ¶ 49.) Plaintiff's complaint is that, during her employment, she was subject to discrimination in a variety of ways, including that: (i) Plaintiff's supervisor granted preferential treatment to Plaintiff's colleagues while threatening Plaintiff with firing and otherwise giving Plaintiff poor work assignments (see, e.g., Def. SOF ¶¶ 9-10, 15-20; Pl. SOAF ¶¶ 61-64, 67-69); (ii) Plaintiff's supervisor refused requests by Plaintiff for days off for religious holidays (Def. SOF ¶¶ 15-20); (iii) Plaintiff's supervisor failed adequately to respond to complaints that Plaintiff's co-workers engaged in "sale stealing," physically threatening behavior, and the use of racial epithets (Def. SOF ¶¶ 11, 13; Pl. SOAF ¶¶ 74-76, 78-79); (iv) Plaintiff was excluded from office social functions (Def. SOF ¶¶ 23-25); and (v) Plaintiff was subject to a hostile workplace environment (Def. SOF ¶ 30-31; Pl. SOAF ¶¶ 74-76). These complaints are discussed in greater detail below and, for the sake of clarity, are sorted by the relevant actors involved.

A. Discriminatory Acts by Plaintiff's Supervisor*fn4

Plaintiff alleges that her supervisor, Sylvia Buchanan, granted preferential treatment to Plaintiff's colleagues. According to Plaintiff, when the sales floor was busy and understaffed, Buchanan helped Plaintiff's co-workers (and rang up sales under their IDs), but Buchanan did not similarly assist Plaintiff.*fn5 (Pl. Dep. at 113-14.) Plaintiff testified that Buchanan also did not invite Plaintiff to an office holiday party in January 2004, although the record evidence is not entirely harmonious as to whether Plaintiff was invited and/or disinvited. (Compare Pl. Dep. at 126-32, with Def. SOF ¶ 23-25.) Around that time, before Christmas of 2003, Plaintiff was not invited to a party organized by Plaintiff's co-workers that included Buchanan, despite having been asked to help pay for a gift for Buchanan. (Pl. Dep. at 134-36.)

Plaintiff also testified that Buchanan singled her out in more affirmative ways. Buchanan repeatedly told her to begin looking for another job, on at least one occasion relaying the message through Mirza's daughter. (Pl. Dep. at 166-68 (relayed message); Pl. SOAF ¶ 51.) Plaintiff says that this happened "repeatedly" and lists May 14, 2004, specifically (Pl. Dep. at 166-68).*fn6 On May 14, 2004, Buchanan called Plaintiff to complain that Plaintiff left early (whether the departure was in fact early is itself a disputed proposition). (Pl. Dep. at 182.) Buchanan also called Plaintiff a "bitch" and stated that she (Plaintiff) was "bitching" about her schedule. (Pl. Dep. at 181-82; Def. SOF ¶ 21.) The statements by Buchanan that Plaintiff was "bitching" occurred between November 25, 2003, and February 1, 2004. Id. According to Plaintiff, Buchanan also forced Plaintiff to work the register in the "very back of the department" rather than the one in the front of the department (Pl. Dep. at 182-83), gave disputed sales to co-workers (Pl. Dep. at 184), forced Plaintiff to work the stock room during busy times and sales (Pl. Dep. at 185), did not regularly schedule Plaintiff to work on Saturdays (Pl. SOAF ¶ 59),*fn7 forced Plaintiff to take breaks at the beginning of her shift (Pl. SOAF ¶ 60), directed Plaintiff to leave before her scheduled shift was over on March 30, 2004 (Pl. SOAF ¶ 62), reduced Plaintiffs hours starting in April 2004, when a new employee began working in the department (Pl. SOAF ¶ 65),*fn8 refused to give time off for Plaintiff to schedule a biopsy (Pl. Dep. at 186-87), refused to sign off on a monetary award that Plaintiff had won for selling a specified amount of a vendor's merchandise in April or May of 2004 (Pl. Dep. at 190-91), refused to give Plaintiff a day off for a religious holiday in November 2003 (Def. SOF. ¶ 16), changed Plaintiff's work schedule without telling her (Pl. Dep. at 183), and played a part in preventing Plaintiff from applying for an assistant manager position in early 2004 (Pl. Dep. at 192-95).*fn9 According to Plaintiff, she was the "only one who was [of] different color, different origin" and she was the only one treated in the manner described above. (Pl. Dep. at 196-97; Pl. SOAF ¶ 58.)

However, Plaintiff does concede that Buchanan never made any comment referencing Mirza' s religion or national origin. (Def. SOF ¶ 31.) Likewise, Plaintiff concedes that she never complained to Human Resources that she had been treated differently by Buchanan based on religion or ethnicity, that Gardner used an ethnic slur, or that Plaintiff was denied an accommodation for a religious holiday. (Def. SOF ¶¶ 43-45.)

B. Judy Gardner, Pat Vlahos, and Jennifer Blanchett

Plaintiff and Judy Gardner did not get on well. The two worked together from July 2003 through April 6, 2004. (Pl. SOAF ¶ 74.) The two had "regular disagreements over ringing sales" and had an "on-going personality dispute." (Def. SOF ¶ 12.) On two occasions, between September and November 2003, Gardner allegedly called Plaintiff a "Paki" and/or a "Paki piece of shit." (Pl. Dep. at 89, 97.) Plaintiff testified that she informed Buchanan about Gardner's language -- and that Plaintiff felt physically threatened by Gardner -- but that she did not know what if any actions Buchanan took in response to her complaint. (Pl. Dep. at 92, 100-101.) The abusive language and physically threatening behavior occurred in 2003. Id. Plaintiff testified about other behavior by Gardner as well: that she would push Plaintiff out of the way (Pl. SOAF ¶ 75), refer to Plaintiff as "garbage" in front of customers (id.), and even "throw things" at Plaintiff (Pl. SOAF ¶ 76; Pl. Dep. at 84). And although the record indicates that Gardner did not make additional remarks about Plaintiff's ethnicity after Plaintiff complained to Buchanan (Def. SOF ¶ 14), Defendant has not pointed to record evidence indicating that other allegedly harassing behavior ceased at that time. Indeed, when disputes cropped up, Plaintiff testified that she was essentially told to grin and bear it. (Pl. SOAF ¶ 78.)

There were other incidents involving co-workers as well. Plaintiff testified that both Gardner, and a second employee, Pat Vlahos, would steal sales from Plaintiff. (Pl. SOAF ¶ 74-75.) Vlahos worked with Plaintiff from July 2003 through May 14, 2004; in the main, Plaintiff experienced less friction with Vlahos than she did with Gardner. (Pl. SOAF ¶ 74; Pl. Dep. at 85- 86.) Defendant' s summary judgment motion does not address the acts allegedly committed by Vlahos.

Finally, Plaintiff alleges that she was discriminated against when she was told that she could not apply for an assistant manager position. Jennifer Blanchett, an employee in the human resources department, told Plaintiff that she could not apply for an assistant manager position in early 2004 because Plaintiff had "a bumpy start." (Pl. SOAF ¶ 55; Pl. Dep. at 192-93.) Again, Defendant' s summary judgment motion does not address this incident.

C. Plaintiff's Last Day of Work and EEOC Charge

Plaintiff's last day of work was May 14, 2004. (Def. SOF ¶ 6; id. at Ex. 7; Pl. Resp. Def. SOF ¶ 1; Pl. Dep. at 16.). On that day she was scheduled to work from 9:00 a.m. to 6:00 p.m. She did not receive a break or eat lunch so Plaintiff asked to leave one hour early (Pl. SOAF ¶ 67), which Buchanan indicated would not be a problem (Pl. Dep. at 167). Plaintiff testified that, although she left in accordance with normal practice (id. at 168), Buchanan called Plaintiff's home and was "upset" about Plaintiff's early departure (id.).

Mirza did not return to work, and she filed a charge of discrimination with the EEOC on December 6, 2004, some 206 days after her employment with Neiman Marcus concluded. (Def. SOF ¶ 47; id. at Ex. 11; Pl. Resp. Def. SOAF ¶¶ 42-43.) On the charge form, Plaintiff checked boxes indicating discrimination for "national origin" and "religion." (Def. SOF ¶ 51.) Plaintiff never filed a complaint with the Illinois Department of Human Resources. (Def. SOF. ¶ 49; id. at Ex. 12; Pl. Resp. Def. SOF. ¶ 44.) Plaintiff's complaint [1] alleges discrimination based on color, national origin, race, and religion. The complaint further alleges that Defendant terminated Plaintiff's employment, failed reasonably to accommodate her religion, failed to stop harassment, and retaliated against Plaintiff for asserting protected rights.

III. Legal Standard on Summary Judgment

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).

To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party' s case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.

There is no heightened standard for summary judgment in employment discrimination cases, nor is there a separate rule of civil procedure governing summary judgment in employment cases. Alexander v. Wisc. Dept. of Health and Family Svcs., 263 F.3d 673, 681 (7th Cir. 2001) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997)). However, intent and credibility frequently are critical issues in employment cases, and in such cases summary judgment is not appropriate. See id. Nevertheless, summary ...


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