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Mokry v. PartyLite Worldwide

August 20, 2009

CYNTHIA MOKRY, PLAINTIFF,
v.
PARTYLITE WORLDWIDE, INC., DEFENDANT.



The opinion of the court was delivered by: Virginia M. Kendall, United States District Judge Northern District of Illinois

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Cynthia Mokry ("Mokry") sued her employer, Defendant PartyLite Worldwide, Inc. ("PartyLite"), alleging various acts of employment discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Age Discrimination and Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Mokry claims that PartyLite failed to promote her and took disciplinary action against her based upon her race, national origin, gender and age. Additionally, she claims that PartyLite created a hostile work environment and retaliated against her. PartyLite now moves for summary judgment. For the reasons stated, PartyLite's Motion for Summary Judgment is granted.

STATEMENT OF UNDISPUTED FACTS

PartyLite manufactures and distributes candle products from its facility in Carol Stream, Illinois. (Pl. 56.1 Resp. ¶¶ 1-2.)*fn1 In November 1998, at the age of 53, Mokry, an Hispanic woman of Mexican descent, began working as a cycle counter in PartyLite's warehouse. (Pl. 56.1 Resp. ¶ 6; Def. 56.1 Resp. ¶ 1.) In that position, Mokry operates a machine with a lift, known as an "order picker," to navigate through aisles in the warehouse so that she can count products on the warehouse shelves. (Pl. 56.1 Resp. ¶ 7.) The only other cycle counter on her shift is Jose Tapia, a male employee of Mexican descent. (Pl. 56.1 Resp. ¶ 73.) Tapia turned 40 years old in 2006. (Id.; Mokry Dep. at 73:7-8.)

Carlos Corcelles ("Corcelles") serves as the Director of Human Resources for PartyLite's Carol Stream facility and oversees all human resource functions. (Def. 56.1 Resp. ¶ 2.) He reports to Joe Salierno, Vice President of Worldwide Distribution. (Id.) When Mokry started working at PartyLite, she reported to Kim Lammlin. (Def. 56.1 Resp. ¶ 24.) Don Chapman ("Chapman"), Harry Campbell ("Campbell"), Frank Zabala ("Zabala") and Don Quinn ("Quinn") also supervised her work. (Pl. 56.1 Resp. ¶ 68; Def. 56.1 Resp. ¶ 27; Mokry Dep. at 27:2.)

During the course of her employment at PartyLite, the company maintained a file named "Employee Warning/Discussion History for Cynthia Mokry" to document incidents and warnings that Mokry received. (Pl. 56.1 Resp. ¶ 14.) Since 1999, PartyLite has disciplined or spoken to Mokry regarding violations of PartyLite's safety, attendance, reporting and employee conduct policies sixteen times. (Pl. 56.1 Resp. ¶ 29.) For example, in 1999, PartyLite gave Mokry a written warning for violating safety rules when someone observed her lying on the dock floor taking pictures of one of her co-workers. (Pl. 56.1 Resp. ¶ 30.)

In 1999, Mokry was on vacation on the day that PartyLite issued paychecks to its employees, so she called Lammlin to make arrangements to pick up her check during a particular day. (Def. 56.1 Resp. ¶ 24; Mokry Dep. at 25:6-8.) Lammlin was the only employee that had access to the locked area that held the paychecks. (Mokry Dep. at 25:1-4.) When Mokry arrived at the office that day, Lammlin was in a meeting. (Mokry Dep. at 24:23.) Lammlin was angry with Mokry when she emerged from the meeting, so she retrieved the check from the locked area and threw it at Mokry. (Def. 56.1 Resp. ¶ 24; Mokry Dep. at 24:23.) Mokry had to pick the check up from the floor. (Def. 56.1 Resp. ¶ 24.) Although Mokry claims that Lammlin acted towards her in a derogatory fashion that day, she admits that Lammlin never said anything derogatory about Mokry's national origin, age, race or gender. (Def. 56.1 Resp. ¶ 24; Mokry Dep. at 36:12-17.)

On October 30, 2000, Mokry received a warning after someone observed her sleeping on the floor of a conference room during work hours. (Pl. 56.1 Resp. ¶ 30.) On February 6, 2003, while counting products on the warehouse shelves, Mokry wanted to count the cases of products located about five or six shelves high. (Def. 56.1 Resp. ¶ 27; Mokry Dep. at 46:19-24.) Based on the way that the cases were situated on the pallet, she thought that it would be unsafe for her to move the cases to conduct her count, so she asked some other warehouse workers to bring the pallet down. (Def. 56.1 Resp. ¶ 27; Mokry Dep. at 46:22-24, 47:1-5.) After they moved the pallet for her, Campbell and Zabala yelled at her in front of the other employees, telling her to never ask the other workers to bring pallets down because they were too busy to take the pallets down for counting. (Def. 56.1 Resp. ¶ 28; Mokry Dep. at 47:6-12.) That same day, during her dinner break, Campbell and Zabala met with Mokry in a conference room to continue their discussion regarding lowering pallets for counting. (Def. 56.1 Resp. ¶ 29.) Mokry believes that Campbell and Zabala "came down hard on" her for having the pallet lowered but she admits that they never mentioned her national origin, race, age or gender when they yelled at her about the situation. (Def. 56.1 Resp. ¶¶ 28-29; Mokry Dep. at 48:12-14.)

On April 19, 2004, Mokry received a written warning after she punched in using her time card and then returned to the employee parking lot to sleep in her car. (Pl. 56.1 Resp. ¶¶ 28-29.) On May 14, 2004, Mokry applied for a position as a backup quality assurance technician. (Def. 56.1 Resp. ¶ 20; Mokry Dep. at 83:6-22; Mokry Dep. Ex. 18.) She admits that she had no prior experience or knowledge with respect to quality assurance, so she would have required training if she had received the promotion. (Mokry Dep. at 83:10-18.) At PartyLite, employees are ineligible for promotion if they have received a written warning within the past 60 days. (Pl. 56.1 Resp. ¶ 22.) Because she received the written warning for clocking in and sleeping in her car within 60 days of applying for the promotion, PartyLite determined that she was not eligible to apply for the backup quality assurance technician role. (Id.; Mokry Dep. Exs. 18, 19.) PartyLite filled the position with Joyce Ivy ("Ivy"), a non-Hispanic woman under the age of 40. (Def. 56.1 Resp. ¶ 20.)

In May 2005, Mokry applied for two vacant computer operator positions. (Def. 56.1 Resp. ¶ 21.) Mohammed Ameel ("Ameel"), a non-Hispanic male under the age of 40, also applied for one of the positions. (Id.) Both Ameel and Mokry required training in order to be qualified computer operators. (Id.; Def. 56.1 Resp. ¶ 22.) Salierno interviewed Mokry for the positions on May 25, 2005 and determined that she was not qualified to be a computer operator. (Def. 56.1 Resp. ¶ 22; Mokry Dep. Ex. 17.) Ameel eventually received the first position. (Def. 56.1 Resp. ¶ 21.) A man named Thomas Mangin ("Mangin") received the second position. (Def. 56.1 Resp. ¶ 23; Mokry Dep. at 97:4-7.) The record contains no information regarding Mangin's age, race or national origin.

Mokry experienced a few problems with her order picker (described as a forklift) in the summer of 2005. Specifically, the lights were not as bright as she wanted them to be. (Def. 56.1 Resp. ¶ 25.) She asked Chapman to repair the lights, but he ignored her requests. (Id.) Chapman continued to ignore the lights until Mokry asked him to accompany her to the machine so he could see the condition of the lights for himself. (Mokry Dep. at 27:10-13.) Once he viewed the lights, he had them fixed for her. (Mokry Dep. at 27:15.)

Additionally, Mokry's order picker began to jerk when she drove it in early June 2005. (Def. 56.1 Resp. ¶ 15.) PartyLite employees have an obligation to report unsafe working conditions. (Def. 56.1 Resp. ¶ 11.) After experiencing difficulty with it for three days, she informed Chapman that the equipment jerked when she drove it. (Def. 56.1 Resp. ¶ 15; Mokry Dep. at 25:12-15.) Chapman responded that no one else had complained about that order picker and that he believed that there was nothing wrong with the machinery. (Mokry Dep. at 25:15-19.) Although Chapman did not have the order picker repaired immediately when Mokry complained, he did not say anything about her national origin, race, gender or age and he did not make derogatory comments towards her. (Mokry Dep. at 29:18-30:5.) Mokry continued to use the jerking order picker until she went to an emergency medical clinic because the jerking caused her discomfort in her back. (Mokry Dep. at 26:21-24.) When she told Salierno that she required medical treatment as a result of the jerking order picker, he had the machine fixed. (Mokry Dep. at 28:21-22.) After investigating the incident, Human Resources Generalist Adrianne Harris ("Harris") proposed giving Mokry a warning for failing to report the faulty equipment fast enough, finding that Mokry "should have reported this problem immediately as required under [PartyLite's] safety guidelines" instead of waiting several days to report the situation to Chapman. (Def. 56.1 Resp. ¶¶ 16, 31.) Despite Harris' recommendation, Mokry did not receive a warning for not reporting the problem sooner. (Mokry Dep. at 28; Mokry Dep. Ex. 6.)

On August 29, 2005, Mokry drove her order picker into a warehouse aisle already occupied by another order picker in violation of PartyLite's safety guidelines. (Def. 56.1 Resp. ¶ 31; Corcelles Dep. Ex. 23.) When the driver of the other order picker reversed the machine, the two order pickers collided. (Id.) Because of her involvement in the accident, PartyLite required her to submit to a post-accident drug test in September 2005. (Pl. 56.1 Resp. ¶ 31.) Mokry tested positive for Propoxyphene, a prescription pain killer marketed under the name Darvon. (Id.) Because the positive test result violated PartyLite's drug-free policy, the company suspended Mokry without pay and provided her with a "Last Chance Agreement" on September 14, 2005. (Pl. 56.1 Resp. ¶¶ 31-32.) The suspension and Last Chance Agreement constituted a final warning to Mokry. (Pl. 56.1 Resp. ¶ 33.) The record does not reflect the length of her unpaid suspension.

After Mokry returned from her suspension, in February 2006, she applied for two open positions: Warehouse Lead and Distribution Lead. (Pl. 56.1 Resp. ¶ 44.) Mokry applied for those positions within six months of receiving her final warning. (Pl. 56.1 Resp. ¶ 45.)*fn2 At PartyLite, employees who have received a final warning within the previous six months are not eligible to receive promotions. (Pl. 56.1 Resp. ¶¶ 22, 46.) Mokry was ineligible for the promotions because she had received a final warning within the six months preceding her applications for the lead positions because she reached the Last Chance Agreement with PartyLite in September 2005. (Id.) She did not receive either of the Warehouse Lead or Distribution Lead positions. (Id.) She does not know the gender, race, national origin or age of the people who received the positions. (Pl. 56.1 Resp. ¶¶ 47-50.)

On March 13, 2006, Mokry wrote a note to Salierno to request a schedule change from the second shift to the first shift because she claims that workers in the "Yellow Zone" harassed her. (Pl. 56.1 Resp. ¶ 55; Mokry Dep. at 164; Mokry Dep. Ex. 11.) The Yellow Zone is a staging warehouse where employees work with pallets of PartyLite product. (Pl. 56.1 Resp. ¶ 55.) Other female and Hispanic employees worked in the Yellow Zone. (Pl. 56.1 Resp. ¶ 57.) Mokry spent every other week working in the Yellow Zone at PartyLite's Carol Stream facility. (Pl. 56.1 Resp. ¶ 56.) Her co-workers in the Yellow Zone frequently used swear words in violation of PartyLite policy. (Pl. 56.1 Resp. ¶ 58.) For example, on one occasion, Mokry entered the break room and saw a Yellow Zone worker named Roy swearing at a vending machine while he kicked it. (Pl. 56.1 Resp. ¶ 59.) She asked Roy to stop using profanity because she did not appreciate his improper language. (Id.) In response, Roy approached Mokry and asked her if she "want[ed] to make something out of this" until she said "I don't want to deal with this at this time." (Pl. 56.1 Resp. ¶ 60; Mokry Dep. at 175:11-15.) At that point, the confrontation with Roy ended. (Mokry Dep. at 175:16-21.)

Generally, the Yellow Zone workers used profanity in their conversations with each other; however, sometimes the workers directed their colorful language at Mokry. (Pl. 56.1 Resp. ¶ 62; Mokry Dep. at 174:6-11, 187:7-15.) Mokry only recalls one specific instance when a Yellow Zone worker directed profanity towards her. (Pl. 56.1 Resp. ¶ 62.) That time, an unidentified Yellow Zone leader called her some names in Spanish. (Id.) Mokry does not recall the context of the incident or what the leader called her. (Id.) In addition to that incident, Yellow Zone workers gossiped about her and laughed at her. (Mokry Dep. at 171-72.) On one occasion, an unidentified person vandalized her personal vehicle in the employee parking lot. (Mokry Dep. at 173.) Sometimes Yellow Zone workers kept their order pickers in a particular aisle in the warehouse and would not move when Mokry asked them to get out of her way. (Pl. 56.1 Resp. ¶¶ 65, 67.) Those workers held different positions at PartyLite than Mokry did and their positions had priority over her position when it came to occupying space in the warehouse aisles. (Pl. 56.1 Resp. ¶ 66.)

Mokry reported the behavior of the Yellow Zone employees to Dean and Salierno. (Pl. 56.1 Resp. ¶ 68.) Salierno asked for the names of the workers at issue and told Mokry that he would take care of the situation. (Pl. 56.1 Resp. ¶ 69.) Dean and Salierno then spoke to the Yellow Zone workers as a group. (Pl. 56.1 Resp. ¶ 70.) Because Mokry was not present for this discussion, she does not know what Dean and Salierno said or did as a result of her complaint. (Id.) However, PartyLite eventually fired the workers that Mokry complained about before she filed this lawsuit. (Pl. 56.1 Resp. ¶ 71.)

On March 23, 2006, Mokry tripped and sprained her knee. (Corcelles Dep. Ex. 23.) On March 30, 2006, one of Mokry's co-workers informed her that Harris and Chapman wanted to meet with her that afternoon in Chapman's office in PartyLite's East Tower. (Mokry Dep. at 106:5-7.) When she learned of the meeting, Mokry was in PartyLite's West Tower. (Id.) Although she had been cleared to return to work with no restrictions regarding her knee, she wanted to "take it easy with [her] knee," so she asked Patrick Dean ("Dean"), a supervisor who used a company-issued golf cart to travel between the two towers, to give her a ride to the meeting. (Mokry Dep. at 106:21-107:1.) Dean agreed to give her a ride after he finished his meeting in the West Tower. (Mokry Dep. at 107:2-5.) Mokry waited for Dean to give her a ride but his meeting lasted longer than she expected. (Mokry Dep. at 107:6-7.) Meanwhile, Harris and Chapman waited inside Chapman's office for Mokry's arrival. (Mokry Dep. Exs. 4, 5.) Harris and Chapman expected Mokry to arrive at 3:30 p.m. for the meeting but she came 40 minutes late. (Pl. 56.1 Resp. ¶ 34.) Mokry's tardiness made her supervisors unhappy. (Pl. 56.1 Resp. ¶ 39.) When Mokry explained that she was late for the meeting because she had been waiting for a ride from Dean on the golf cart, Harris and Chapman told her that PartyLite does not operate a taxi or shuttle service and that she had no right to ask Dean for a ride. (Pl. 56.1 Resp. ¶¶ 38-39; Mokry Dep. 108:7-9.) During the meeting, Mokry became upset and raised her voice at the supervisors. (Pl. 56.1 Resp. ¶ 35.) Mokry received a suspension for two or three days as a result of her conduct during the meeting. (Pl. 56.1 Resp. ¶ 37.)*fn3 Although Harris and Chapman made no mention of Mokry's national origin, race, gender or age during the meeting, Mokry believes that she received the suspension because of those reasons. (Pl. 56.1 Resp. ¶ 40; Mokry Dep. at 116:8-14.) Mokry concedes that the supervisors at the meeting would have been upset if any other employee had arrived to a meeting late. (Pl. 56.1 Resp. ¶ 41.)*fn4

Mokry filed her charge of discrimination on May 22, 2006. (Pl. 56.1 Resp. ¶¶ 26, 75.) She admits that she has not experienced any discrimination or retaliation since she filed the charge of discrimination. (Pl. 56.1 Resp. ¶ 75.) In fact, her "life became better once [she] filed this case." (Pl. 56.1 Resp. ¶ 76.) She also concedes that nobody at PartyLite told her that she might lose her job or suffer an adverse employment action if she filed a charge of discrimination. (Pl. 56.1 Resp. ¶ 77.) On February 20, 2007, Mokry filed this action alleging ten counts of discrimination under Title VII, the ADEA and § 1981. (Compl.)

STANDARD OF REVIEW

Summary judgment is proper when "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake ...


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