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Celia K. Daniel v. Sargent & Lundy

March 14, 2012

CELIA K. DANIEL, PLAINTIFF,
v.
SARGENT & LUNDY, LLC AND ABM JANITORIAL SERVICES -NORTH-CENTRAL, INC., DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly , District Judge:

MEMORANDUM OPINION AND ORDER

Celia K. Daniel has sued her employer, ABM Janitorial Services - North-Central, Inc. (ABM), and the business at whose offices she worked, Sargent & Lundy, LLC (S&L). She asserts a claim of race discrimination pursuant to Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e--5(f)(1), and 42 U.S.C. § 1981(a). Both defendants have moved for summary judgment. For the reasons stated below, the Court grants ABM's motion and denies S&L's motion.

Background

ABM provides cleaning services to offices and buildings in Chicago. Daniel, who is African-American, began working for ABM on February 20, 2008. During her time working for ABM, she was a member of a labor union, the Service Employees International Union, Local No. 1.

Initially, Daniel worked as a floater, a temporary employee who filled in when other employees were on vacation or unable to work. She worked at many different offices and buildings. As a floater, she had lower wages than permanent employees assigned to specific buildings, and she did not receive benefits or seniority rights.

In September 2008, after working six months as a floater, ABM assigned Daniel to work as a permanent employee at the offices of S&L in downtown Chicago. As a permanent employee, Daniel received benefits and began to accrue seniority, although the collective bargaining agreement stated that her seniority applied only as long as she worked at the S&L offices. At the offices, she worked as a "day matron," a day-shift janitor. Her primary duties were to clean public areas such as lunch rooms and conference rooms, fill paper towel and soap dispensers, and check on the conditions of the women's restrooms. At S&L, Daniel worked with two other ABM matrons, Dusanka Sudar, who is white, and Alejandra Sandoval, who is Hispanic. A white ABM porter, Zeljko Delac, also worked at S&L's offices.

At S&L, the ABM matrons interacted with Moises Lopez, who is Hispanic. Lopez was an S&L employee. He was a supervisor who had responsibility for the mail room, security, and some maintenance tasks. As part of his job, he also monitored the performance of ABM and ABM's employees at S&L. The parties dispute the amount of authority he had over ABM's on-site personnel and how frequently he interacted with them.

When Lopez first took responsibility for the ABM matrons in 2006, he spoke with Blagi Premovic, an ABM employee who managed the S&L account. Premovic told Lopez that one of the matrons working at S&L, Dzevahire Jahovic, who was white, had received a written warning for deficient performance at S&L. Over the next two years, Lopez received multiple complaints from S&L employees that Jahovic had not cleaned the areas for which she was responsible. He testified that he passed these warnings along to Premovic but did not do anything else. In 2008, Lopez heard Jahovic speaking negatively about S&L managers and using obscenities to describe them. He contacted Premovic to complain. Premovic took the problem to the ABM human resources division, and ABM and S&L agreed that Jahovic would be transferred away from S&L's offices. During his deposition, Lopez testified that ABM suggested transferring Jahovic and that he agreed. S&L Ex. 5 at 18.

Daniel had worked at S&L a few times as a floater, and Lopez was happy with her work. After ABM transferred Jahovic away from the S&L offices, Lopez requested that they assign Daniel to the position, and ABM did so. Lopez testified that he never received complaints about Daniel's cleaning work during the time she worked at S&L. S&L Ex. 5 at 51--52. Daniel did eventually did have trouble at S&L, however, involving her alleged misuse of S&L conference rooms.

When Daniel started working at S&L, Sudar (another ABM matron) showed her around and explained the basic tasks of the job. Sudar testified during her deposition that she also told Daniel never to use S&L conference rooms or quiet rooms for any reason and that she should enter the conference rooms just to clean them and then leave immediately. S&L Ex. 7 at 63. Olga Tin, Lopez's supervisor at S&L and an Asian-American, testified in a deposition that she began to receive complaints about Daniel in May or June 2009. S&L Ex. 4 at 10--11. The complaints were that Daniel was using S&L conference rooms to do homework or sleep. Id. at 11. Tin instructed Lopez to call ABM to complain, and Lopez later informed her that he had done so. Id. at 11--12. Tin received three more complaints about Daniel using the conference rooms in May--July 2009. Id. at 15, 17. Each time, she instructed Lopez to complain to ABM, and he told her that he had done so. Id. at 18. Tin testified that she received a fifth and final complaint about Daniel in June or July 2009 and that she instructed the complainant to take the problem to Lopez immediately. Id. at 19--21.

Lopez recalled the events somewhat differently. First, he stated that after he received several complaints about the matrons in general, he had a short meeting with all of the matrons about not using the conference rooms. S&L Ex. 5 at 36--37. He also called ABM to report the complaints. Id. at 66. Then in March 2009, he talked to Daniel about using the conference rooms for personal reasons after Tin told him she had received several complaints. Id. at 60--61. He told her that the conference rooms were not for personal use, and he offered her the use of the mail room, which he supervised, if she needed personal space. Id. at 62--63. Lopez stated that he was not particularly interested in talking to Daniel about the times she had used the conference rooms but rather just wanted to make sure she knew she could use the mail room. Id. at 62. Lopez reported to Tin that he had talked to Daniel and also mentioned the problem to Premovic, the ABM representative, in a phone call a few days later. Id. at 64--65. Lopez told Premovic that it would not be necessary to speak to ABM's human resources division about the problem. Id. at 66. Lopez testified that he did not tell Daniel that there would be any consequences from use of the conference rooms and that he did not think there would be any. Id. at 66--67. He did not receive any more complaints about Daniel using the conference rooms until her last day of work at S&L. Id. at 65, 67.

Daniel's description of what she was told about conference room usage differs from those of Lopez and Tin. In her deposition, she testified that no one had told her that she could not use the conference rooms when she started. S&L Ex. 8 at 67--68. Eventually, Lopez told her not to eat in the conference rooms, but she was never told that she could not make phone calls from the conference rooms or otherwise use them for personal reasons. Id. at 68--70. She testified that Lopez never had a group meeting to discuss conference room use and that he generally spoke to each ABM matron individually. Id. at 70--71. When she talked to Lopez, she did not understand him to be saying that there were complaints about her using the conference rooms. Id. at 71. Instead, she thought that S&L employees had complained that she was taking and eating food left over from various S&L meetings in the conference rooms. Id. at 71--72. She did understand, however, that S&L did not permit her to sleep or do homework in the conference rooms. Id. at 68--70.

It is undisputed that on August 26, 2009, Lopez received a complaint that a matron was sleeping in a conference room. Lopez went to the conference room and found Daniel there. He testified that the lights were off and that Daniel's head was tilted to the side as though she was sleeping and that when he turned on the lights, Daniel looked up sleepily. S&L Ex. 5 at 69--70, 72. Daniel denies that she was sleeping at the time but does not deny that she was in the conference room. S&L Ex. 8 at 99--101. Lopez sent Daniel home and called Premovic to report the incident. Lopez testified that Premovic offered to remove Daniel, but Lopez initially said no. S&L Ex. 5 at 77. Later, he changed his mind. The next day, Lopez sent Premovic an e-mail providing additional details. Lopez testified that he "felt that it was time to possibly transfer" Daniel, but his e-mail stated, without qualification, that "we can no longer allow Celia Daniel to continue to work at Sargent & Lundy." Id. at 78; S&L Ex. 6 at 1.

Premovic informed Irina Feldman, ABM's Regional Director of Human Resources, of Lopez's complaint and e-mail. Feldman concluded that ABM had to remove Daniel from the S&L offices. On August 27, 2009, the same day that Lopez sent the e-mail, Daniel did not go to work at S&L but instead met at ABM's Chicago office with Raul Garcia, an ABM operations manager. Garcia told Daniel that she would be suspended without pay while ABM investigated the incident at S&L's offices. Daniel disputes that ABM ever conducted any investigation. On September 9, Garcia and Sylwia Krawczyk, an ABM human resources specialist, contacted Daniel to tell her that ABM's investigation had concluded. Krawczyk told Daniel that she would still be able to work for ABM but that only floater positions were available. As a consequence, Daniel would be paid less, would not have benefits, and would lose the seniority she had accrued working at S&L. Krawczyk also told Daniel that there was no certain date by which she would be assigned to another permanent position.

Daniel agreed to these terms, and Krawczyk told her to come to ABM's offices on September 14, 2009, to sign some paperwork. Before doing so, Daniel filed a union grievance regarding her removal from the S&L position. When she arrived at ABM's offices on September 14, Krawczyk told her that the grievance had to be resolved before Daniel could receive a new assignment. In response, Daniel resigned.

As a replacement for Daniel, ABM provided S&L with Amina Sewalim, who is Hispanic. Lopez testified that he was familiar with Sewalim's work as a floater and that he assented when Garcia suggested sending her over. S&L Ex. 5 at 84--85. At one point, Lopez testified that he and Sewalim spoke Spanish together, but he later stated that he always spoke English with both her and Sandoval. Id. at 84, 91--92. During his deposition, Garcia stated that Lopez requested Sewalim as the replacement for Daniel, although he did "not really" request her by name. Pl. S&L Resp., Ex. 10 at 21.

Discussion

On a motion for summary judgment, the Court "view[s] the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor." Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 656 (7th Cir. 2010). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In other words, a court may grant summary judgment "[w]here the record taken as a whole could not ...


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