The opinion of the court was delivered by: Judge Ronald A. Guzmán
MEMORANDUM OPINION AND ORDER
Plaintiffs have sued defendant for its alleged violations of Title VII and 42 U.S.C. § 1981. The case is before the Court on Kraft's Federal Rule of Civil Procedure ("Rule") 56(c) motion for summary judgment. For the reasons set forth below, the Court grants in part and denies in part the motion.
Plaintiffs, who are Hispanic, are or were employed by Kraft at its Tech Center in Glenview, Illinois. (Pl.'s Resp. Def.'s LR 56.1(a) Stmt. ¶¶ 1-2.) There are several "mini-factories" for product development in the Tech Center that are collectively called the Pilot Plant. (Id. ¶ 23.)
Bessy Flores started working for Kraft in 1986 and spent the next ten years in the Sanitation and Janitorial Departments. (Id. ¶ 8.) She transferred into the Shipping and Receiving ("Shipping") Department in 1997 and worked there for nine years. (Id.) In November 2008, Flores transferred back to Sanitation and has worked there ever since. (Id.) Flores has been an hourly employee throughout her employment with Kraft. (Id.)
Jose Diaz started with Kraft in 1990 and worked in the Sanitation and Janitorial Departments for nine years. (Id. ¶ 9.) In November 1999, he transferred to Shipping, where he worked until he was terminated on November 15, 2008. (Id.) Diaz was an hourly employee throughout his employment with Kraft. (Id.)
Ramon Peña worked for Kraft as a part-time employee in Shipping from July 2000 through October 2006. (Id. ¶ 10.) He became a full-time Shipping employee in November 2006 and worked there until he was terminated on November 15, 2008. (Id.) Pena was an hourly employee throughout his employment with Kraft. (Id.)
Alberto Robles started with Kraft in 1987 and worked in the Sanitation and Janitorial Departments as an hourly employee until May 2001. (Id. ¶ 11.) In June 2001, he became a salaried, non-exempt senior technician in the Support Services Department, the position he holds today. (Id.)
Robert Vela started with Kraft in 1999 and worked as an hourly employee in the Sanitation Department until December 2001. (Id. ¶ 12.) In January 2002, he became a salaried, non-exempt senior technician in the Support Services Department, the position he holds today. (Id.)
Peter Michalec started with Kraft in 1986 as an hourly employee in the Sanitation Department. (Id. ¶ 15.) In 1989 or 1990, he transferred to Shipping. (Id.) Michalec became the coordinator of Shipping, which is a salaried position, in 1996 and its supervisor in 2000. (Id. ¶¶ 15-16.) In 2005, he became the supervisor of the Support Services Department as well. (Id. ¶ 16.) In November 2008, Michalec stopped supervising Shipping and became supervisor of Pilot Plant Services, which is comprised of the Building Operations Group, the Sanitation Department and the Support Services Department. (Id. ¶ 17.) From 2002 or 2003 through March 2009, Michalec reported to Charles Shifflett, who was the Associate Director of Facilities for the Tech Center. (Id. ¶¶ 18-19.)
Kraft uses a posting process to fill available jobs. (Def.'s Resp. Pls.' Stmt. Add'l Facts ¶ 1.) A manager starts the process by sending a prospective job posting to Kraft's Human Resources Department ("HR"). (Id.; see Pls.' App. Exs. Supp. Br. Opp'n Mot. Summ J., Ex. LL, Simmons Dep. at 23.) Once HR approves it, the posting goes to HR's Talent Acquisition Department, which puts it on Kraft's in-house website and/or distributes it internally on paper. (Pls.' App. Exs. Supp. Br. Opp'n Mot. Summ J., Ex. LL, Simmons Dep. at 23-24.) Interested employees have a week or two after a job is posted to apply for it. (Id. at 24.) The applications are preliminarily reviewed by Talent Acquisition and then sent to the manager who initiated the process. (Id. at 24, 34-36.) The manager reviews the applications and any information from Talent Acquisition, recommends an applicant to his supervisor and HR, and the three make the hiring decision together. (Id. at 37-38.)
In July 2008, Michalec posted a senior technician salary grade 2 position. (Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶ 68.) Technicians assist product developers in various ways, including by ordering and restocking ingredients, running the milk system and setting up and running the equipment. (Id. ¶ 24.) The posting also says: "[M]inimum two years of experience in Mechanical knowledge[;] minimum of 2 years experience in Pilot Plant Operations[;] Knowledge of HACCP [food safety procedures] and Sanitation procedures[;] Ability to set up equipment ie pumps, grinders, homogenizers[;] Ability to operate and maintain equipment safely[.]" (Def.'s Summ. J. App., Ex. E, Vela Dep. Exs. 13 & 14, July 2008 Postings; see Def.'s Summ. J. App. Ex. N, Utzig Decl. ¶ 8 (explaining HACCP procedures).)
Diaz and Peña both saw the posting and put their names on the job sign-up sheet and Peña sent an application for the job and his resume to Karen Schroeder in HR as well. (Def.'s Summ. J. App., Ex. A, Diaz Dep. at 120-23; id., Ex. B, Peña Dep. at 136-37, 146-47.) The sign-up sheet also contains the names of two other Hispanic employees, Alberto Lopez and Jesus Robles, and two African-American employees, Londale Stroud and Dee Hunt, but the last two names are crossed out. (Pls.' App. Exs. Supp. Br. Opp'n Def.'s Mot. Summ. J., Ex. B, July 2008, Technician Sign-Up Sheet.)
Shortly after the job was posted, Shifflett decided not to fill the position. (Def.'s Resp. Pls.' LR 56.1 Stmt. Add'l Facts ¶ 28; Def.'s LR 56.1(a) Stmt. ¶ 72.) He says he did so because he knew certain Tech Center Departments would shortly be eliminated and wanted all of the affected employees to have the chance to apply for the technician job. (Id.) Plaintiffs contend Shifflett's real reason for freezing the job was that the only names left on the sign-up sheet were Hispanic. (Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶ 72.)
In September 2008, Kraft announced that it would outsource the Tech Center's shipping functions and most of the maintenance functions to an outside contractor. (Pl.'s Resp. Def.'s LR 56.1(a) Stmt. ¶¶ 35-37.)
On September 19, 2008, after the outsourcing was announced, Michalec posted two senior technician salary grade 2 positions. (Id. ¶ 73; see Def.'s Summ. J. App., Ex. E, Vela Dep. Exs. 18 & 19, September Technician Internet & Bulletin Board Postings.) The posting described the job duties as: "Doing weight conversion to order milk 2%. Setting up the milk system to receive milk 10%[.] Process milk 40%, CIP system 10%, Process I-Buy purchases 2%, equipment set up 6% and other duties assigned 30%[.]" (Def.'s Summ. J. App., Ex. E, Vela Dep. Exs. 18 & 19, Internet & Bulletin Board Postings.) The "[r]equired minimum qualifications" listed are: two years of "[m]echanical knowledge" and "eexperinece [sic] with forklift," "[k]nowledge of HACCP and Sanitation procedures, "[a]bility to setup [sic] equipment (pumps, grinders, homogenizers)" and "[a]bility to operate and maintain equipment safely." (Id.; see Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶ 75.)
Diaz and Peña say Michalec refused to let them apply for these jobs, a contention he disputes. (Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶¶ 117-18.) Robles did not apply because he already had a senior technician salary grade 2 position. (Id. ¶ 81.) Vela had such a position as well, but he applied for the job because he thought that these technicians would perform only one function -- processing milk. (Def.'s Summ. J. App., Ex. E, Vela Dep. at 207-08.) Pablo Arroyo, who is Hispanic, Jerlean Shack and Curtis Ward, who are African American and Jeffrey Ambrose, Robert Meyers, Matt Simeon and Maria Stachon Groblowy, who are Caucasian, also applied for the jobs. (Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶¶ 21-22, 49, 80.)
Michalec did not consider Vela for these jobs because Vela already had a senior technician salary grade 2 position. (Id. ¶ 82.) Michalec interviewed the other candidates and says he selected Ward and Meyers because of their "[s]trong mechanical skills." (Def.'s Summ. J. App., Ex. F, Michalec Dep. at 146-47.)
On September 19, 2008, Michalec also posted five entry-level positions in the Sanitation Department. (Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶¶ 43-44.) The posting described the job duties as: "Sanitize pilot plant equipment, scrub floors, cooler and freezer cleanouts, foaming of pilot plant rooms, stock pilot plant inventory. Set up footbaths in the pilot plants. General housekeeping. Maintain floors in dry ingredient rooms." (Def.'s Summ. J., App., Ex. F, Michalec Dep. Ex. 9 at D000736.) The posting also said that a high school diploma, "1 year Pilot Plant experience... [m]echanic skills, forklift certifi[cation] & ability to lift 50 lbs [sic]" were required. (Id.) Michalec made a list of the employees who were interested in the jobs, which contains the following names: Diaz, Peña, Flores, Simeon, Ward, Groblowy, Raul Fernandez, who is Hispanic, Demeather (Dee) Hunt, who is African American, and John Byrne, who is Caucasian. (Def.'s LR 56.1(a) Stmt. ¶ 118; Def.'s Summ. J., App., Ex. F, Michalec Dep. at 132-40; id., Michalec Dep. Ex. 8 at D000749; Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶¶ 21-22, 49.) Michalec awarded the jobs to Fernandez, Simeon and Groblowy, for the day shift, and Flores and Hunt, for the night shift. (Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶ 53.) Kraft says the selection decisions were based solely on seniority, a contention plaintiffs dispute. (Id. ¶ 50; Def.'s LR. 56.1(a) Stmt. ¶ 50.)
In July 2008, Flores began a three-month disability leave. (Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶¶ 128-29.) In October 2008, Flores returned to work from disability leave and complained to Chad Simmons, an HR representative, that she had been awarded a night-shift sanitation job while Simeon had been put on the day-shift. (Id. ¶¶ 122-23, 129.) Flores says Simmons told Michalec about her complaint and, after he did so, Michalec retaliated against her by assigning her onerous tasks. (Id. ¶¶ 124-25.)
In October 2008, Diaz and Peña complained to Simmons and HR Vice President Gary Conte that they had not been given the sanitation or technician jobs because they are Hispanic. (Id. ¶¶ 106-09, 112, 115.) Simmons and Conte each spoke to Michalec and Shifflett about Diaz and Pena's concerns, reviewed the selection processes for the positions and concluded that nothing improper had occurred. (Id. ¶¶ 110-11, 113-14, 116.)
On November 6, 2008, Flores gave Michalec a doctor's note that restricted her from lifting more than twenty pounds and asked for a light-duty assignment. (Id. ¶ 130.) Michalec denied her request because, he says, Flores' job required her to lift more than twenty pounds regularly, her duties could not be assumed by another employee and there were no light-duty positions available. (Def.'s LR 56.1(a) Stmt. ¶¶ 131-33.) After her light-duty request was denied, Flores went back on short-term disability. (Pls.' Resp. Def.'s LR 56.1(a) Stmt. ¶ 136.)
At the end of December 2008, after her transfer to the sanitation job had taken effect, Flores again asked for light duty and again her request was denied. (Id. ¶¶ 137, 149.) Flores remained on short-term disability until February 2, 2009, when she returned to work without restrictions. (Id. ¶ 140.)
To prevail on a summary judgment motion, "the pleadings, the discovery and disclosure materials on file, and any affidavits [must] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). At this stage, we do not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the record as a whole establishes that no reasonable jury could find for the non-moving party. Id.
Kraft contends that plaintiffs' section 1981 and Title VII national origin discrimination claims must be dismissed because section 1981 does not prohibit discrimination on the basis of national origin and plaintiffs have no evidence to support their Title VII national origin claims. The Court agrees. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (holding that section 1981 prohibits discrimination on the basis of race, "ancestry or ethnic characteristics" but not on the basis of national origin). Kraft's motion for summary judgment on these claims is, therefore, granted.
Kraft also argues that it is entitled to judgment on some of plaintiffs' Title VII claims because they did not file timely EEOC charges on them. See 42 U.S.C. § 2000e-5(e)(1) & (3)(B) (requiring Title VII claimants to file an EEOC charge within 300 days of the contested employment action before filing suit but allowing disparate pay plaintiffs to "recover back pay for up to two years preceding the filing of the charge"); Cheek v. W. & So. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) (stating that a Title VII claim not raised in a timely EEOC charge generally cannot be asserted in court). Diaz's EEOC charge, filed October 22, 2008, asserts that Kraft denied him a sanitation job in favor of a less-qualified non-Hispanic employee. (Def.'s Summ. J. App., Ex. A, Diaz Dep. Ex. 78.) Peña's EEOC charge, filed November 21, 2008, states that Kraft discriminatorily denied him sanitation and technician jobs in favor of less-qualified non-Hispanic employees. (Id., Ex. B, Pena Dep. Ex. 108, EEOC Charge.) Robles' charge, filed June 23, 2008, says that Kraft paid him lower wages than non-Hispanic employees. (Id., Ex. D, Robles Dep. Ex. 51, EEOC Charge.) Vela's charge, filed November 14, 2008, says that he was unfairly reprimanded, deprived of overtime and paid time off and denied a technician job because of his ethnicity. (Id., Ex. E, Vela Dep. Ex. 6, EEOC Charge.) Plaintiffs assert all of these claims in this suit. In addition, however: (1) Robles claims that Kraft discriminated against him by making derogatory comments in his draft 2007 performance review; (2) Peña claims that Kraft discriminatorily denied him a chemical job in 2007; (3) Vela claims that Kraft has paid him less than his non-Hispanic counterparts; and (4) Diaz claims that Kraft discriminatorily denied him a technician job in 2008. (See Pls.' Resp. Def.'s Mot. Summ. J. at 5-7.) Robles' performance review claim and Peña's chemical job claim are based on events that occurred more than 300 days before they filed their EEOC charges and the lion's share of Vela and Robles' disparate pay claims are based on paychecks they received more than two years before they filed their EEOC charges. Plaintiffs contend that these claims are timely nonetheless, thanks to the continuing violation doctrine.
The Court disagrees. The continuing violation doctrine "allows [a plaintiff] to delay suing until a series of acts by a prospective defendant blossoms into a wrongful injury on which a suit can be based." Lewis v. City of Chi., 528 F.3d 488, 493 (7th Cir. 2008). As the Lewis court noted, however:
Despite its name, it is a doctrine about cumulative rather than continuing violation.
A typical case is workplace harassment on grounds of sex. The first instance of a co-worker's offensive words or actions may be too trivial to amount to actionable harassment, but if they continue they may eventually amount to an actionable pattern of harassing behavior. And then the entire series is actionable. If each harassing act had to be considered in isolation, there might be no actionable claim even when by ...