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Villanueva v. Village Discount Outlet

October 28, 2009


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Gloria Villanueva ("Villanueva") has sued her former employer, Village Discount Outlet, Inc. ("Village Discount"), asserting charges of national origin discrimination, retaliatory discharge and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. §§2000e to 2000e-17) and retaliatory discharge for reporting illegal business activities in violation of Illinois law. Village Discount has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, and the motion has been fully briefed. For the reasons stated here, the Rule 56 motion is granted.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider evidentiary records in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a non-movant "must produce more than a scintilla of evidence to support his position" that a genuine issue of fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

This District Court has implemented Rule 56 through its LR 56.1, which requires both sides to submit factual statements supported by record evidence.*fn1 Importantly, LR 56.1(b)(3) requires any non-movant (such as Villanueva) who seeks to avoid summary judgment to file "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." In addition the non-movant is required to submit a "statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment..." (id.).

Villanueva has failed to comply with LR 56.1. She has filed neither the required response to Village Discount's LR 56.1(a)(3) statement nor a statement of additional facts. Instead she has submitted a single document, a memorandum of law in opposition to Village Discount's motion for summary judgment, largely consisting of a factual recitation (thankfully with citations to the record).

LR 56.1's enforcement provision states that "all material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party." And our Court of Appeals has "consistently held that failure to respond by the non-movant as mandated by the local rules results in an admission" (Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003)).

While this Court would thus be well justified in treating all facts in Village Discount's LR 56.1(a)(3) statement as admitted and in refusing to consider any of the facts submitted by Villanueva in her memorandum of law (see Cichon v. Exelon Generation Co., 401 F.3d 803, 809-10 (7th Cir. 2005)), such an evidentiary death sentence is unnecessary.*fn2 Even when Villanueva's claims are considered in light of all admissible evidence that she has tendered, she does not survive Village Discount's motion.*fn3


Villanueva is a Hispanic woman of Mexican national origin who began working for Village Discount in 1992 (Village Discount St. ¶1; V. R. Mem. 1). Village Discount is a purveyor of used merchandise, which it obtains through donations to various charities. It collects, stores and sells the merchandise and remits a set fee to the charities per contract (Village Discount St. ¶2; V. R. Mem. 4). To facilitate the collection of merchandise, Village Discount operates a number of collection locations (called Plaza Sites) at retail centers in the Chicago Metropolitan Area (Village Discount St. ¶2). It also handles residential pick-ups of donations and operates a warehouse and several retail stores (id.).

In July 2002, after holding a number of positions for Village Discount in its retail stores and at its Blue Island headquarters, Villanueva was promoted to Assistant Plaza Sites Manager ("Assistant Manager") (id. ¶3; V. R. Mem. 1-2).

Assistant Managers assist in the oversight and management of the Plaza Sites (Village Discount St. ¶12). Because an Assistant Manager is required to visit the Plaza Sites, Villanueva was given the use of a company vehicle (id. ¶11).

Villanueva's immediate predecessor in the position, Nikki Mills ("Mills") had originally used her own car and was then reimbursed for her mileage. While Mills was still with Village Discount, it changed that practice and made company vehicles available to Assistant Managers (Village Discount St. ¶7, 9; V. R. Mem. 2). Villanueva and Mills were paid the same rate--$10.60 an hour--and each was paid for overtime worked (Village Discount St. ¶6, 8; V. Ex. 2 at 77; V. Ex. 4 at 252). Mills had worked as a driver for Village Discount before serving as an Assistant Manager, and she exercised an option to return to that position after working as an Assistant Manager for about 11 months (Village Discount St. ¶10; V. R. Mem. 2).

While she was an Assistant Manager, Villanueva's direct supervisor was Darrell Carden ("Carden"), the Plaza Sites Manager (Village Discount St. ¶4; V. R. Mem. 2). Both Villanueva and Carden also reported to Village Discount's Vice-President Tom Foley ("Foley") and to its President James Stinnet ("Stinnet") (Village Discount St. ¶4; Village Discount Ex. I; see V. Ex. 2 at 83-85). Villanueva and Carden also interacted with Gary Gullickson ("Gullickson"), the Plaza Sites Coordinator (V. Ex. 5 at 6-7).*fn4 Despite Gullickson's involvement with the Plaza Sites, Villanueva did not report to him and he was not her supervisor (V. Ex. 2 at 85). Villanueva and Carden met with Foley and Stinnet in regular Tuesday morning meetings (Village Discount St. ¶35).

Villanueva kept her own time records, and Carden reviewed her time sheets before they were submitted for each pay period (V. R. Mem. 5). Villanueva also maintained a log report "for time management and verification of job duties completed" (Villanueva Tr. 133; see V. Ex. 2 at 66) for some period of time (including January through May 2006) while she served as an Assistant Manager. She recorded consistent "begin" and "end" hours on her logs and on her time sheets for April and May 2006 (Village Discount Exs. H-K; Villanueva Tr. 133; V. Ex. 4 at 80-88; V. Ex. 6 at 116-20).

Villanueva's duties also required her to coordinate with the Village Discount warehouse to have a driver pick up full collection trailers and deliver empty ones (see Village Discount St. ΒΆ41; V. R. Mem. 3). That duty required her to interact on occasion with Village Discount's warehouse manager Roy Hathaway, Sr. ("Hathaway Sr.") and with its truck ...

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