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Equal Employment Opportunity Commission v. Rjb Properties

April 23, 2012

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PLAINTIFF,
v.
RJB PROPERTIES, INC., AND BLACKSTONE CONSULTING, INC., DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

In this action, the EEOC brings claims: 1) on behalf of seventeen present and former employees of defendant RJB Properties who worked as janitors or janitorial supervisors at the site of one of defendants' clients, Illinois Institute of Technology ("IIT"); and 2) on behalf of five present and former employees who worked as janitors at Thornwood High School, which is part of School District 205, another of defendants' clients. In its complaint, the EEOC asserts that defendants discriminated against Hispanic janitors on the basis of their national origin, and that they retaliated against two African-American supervisors for refusing to do the same. The EEOC also brings a claim of sexual harassment on behalf of one of these supervisors.

Now before me are two motions for summary judgment. In the first, which is supported by two separate factual statements and two memoranda of law (relating to the "IIT claimants" and the "Thornwood claimants," respectively), defendants assert that none of the EEOC's claims of national origin discrimination should be allowed to proceed to trial. In the second, defendant Blackstone Consulting, Inc., ("BCI"), asserts that it should be dismissed from the case because it did not employ any of the claimants, and that there is no basis for liability under the theories that it was a single employer or a joint employer with defendant RJB. These motions are resolved as follows.

I. Background

A. The IIT Claimants

I address in later sections the EEOC's detailed allegations and evidence relevant to each claimant's particular claims. For a proper understanding of those, however, some factual context is necessary.

At the time relevant to the events at issue, RJB provided janitorial services to IIT pursuant to contract. The contract required that RJB implement and adhere to an equal opportunity employment policy. Four different classifications of RJB employees provided services under the contract: 1) "call-in" employees (also referred to as "replacement" or "temporary" employees); 2) "introductory" employees; 3) permanent full-time employees; and permanent part-time employees. Call-in janitors were not assigned to a regular shift or schedule, were not guaranteed hours, were not eligible for employer sponsored benefits, and were not members of Service Employees International Union (SEIU) Local 1, which represented RJB's permanent janitorial employees, and with which both RJB and IIT had a collective bargaining agreement (the "CBA").

The CBA governed various aspects of employee work life at RJB, including seniority rights, procedures for filling vacant positions, assignment of overtime, employee grievances, and wages and hours. Although not members of the union, call-in janitors were subject to the CBA in some respects, such as their eligibility for vacant permanent positions. RJB employees were also subject to an employee handbook, which sets forth additional policies relating to issues including employee work schedules, rest periods, overtime, attire, and discipline. With respect to discipline, the employee handbook establishes a progressive discipline policy: the first level is a verbal warning (which is memorialized in writing, and is sometimes referred to as a "written verbal warning"), followed by two successive written warnings, a three-day suspension without pay, and termination.

RJB janitors working at IIT reported to their supervisors, who themselves reported to the project manager responsible for the site. Project managers had authority to hire and to discipline janitors, but they needed approval from human resources before they could fire janitors. Project managers were responsible for posting vacant janitorial positions and for selecting janitors for the positions.

Until spring of 2006, the project manager at IIT was Patricia Figueroa, who is Hispanic. Figueroa was replaced by claimant Tony Wesley, who is African-American, and who held the position until April of 2007. Mark Bonk, who is white, replaced Wesley in May of 2007 and was the project manager until RJB lost the IIT contract.*fn1

Supervisors at IIT during the relevant period included claimant Todd Jackson, as well as Jeff Bass, Mike Holliday, Thomas Jones, Santre Holmes, and Jeff Thompson on the night shift, and Annie Caldwell and Cathola Smith on the day shift. All RJB project managers reported to general manager Angela Shumpert, who was employed by BCI. Shumpert reported to Jim Blackstone at BCI, but for day-to-day matters concerning RJB, she reported to RJB's president, Ron Blackstone.

Shumpert is at the heart of the EEOC's allegations of discrimination. The EEOC identifies evidence of Shumpert's hostility towards Hispanics and of her disparate, sometimes abusive treatment RJB's Hispanic employees. Several EEOC claimants and witnesses testified that Shumpert used such terms as "wetbacks," "spics," and "bean-eaters," and also said that Mexicans smell, are lazy, and complain too much. Claimant Tony Wesley and former RJB project manager Ella Patterson both testified that Shumpert used these terms frequently during management meetings attended by project managers, and Patterson recalls that Shumpert once called Patricia Figueroa, whom Shumpert "made [] cry all the time at these meetings," a "stupid Mexican bitch." Patterson Dep., EEOC Supp. Exh. at 66:8-67:8, 83:9-16 (DN 182-1). Patterson further testified that, in addition to her use of racial epithets, Shumpert discriminated against Hispanic workers at IIT, "[b]ecause she wasn't giving them the stuff they needed to work with but then she would reprimand them for not doing the work. And if a black person came to her and needed something, nine times out of ten they got the stuff they needed." Id. at 86:2-7.

Patterson also testified that Shumpert would tell supervisors or project managers to discipline or terminate Hispanic employees "if they were a problem," i.e., if they "complained a lot to the union." According to Patterson, "if they [i.e., Hispanic janitors] thought that Angela was discriminating against them," Shumpert would say "she wanted them gone" and to "get rid of them." Id. at 93:13-94:7. Patterson identified claimant Maria Rodriguez as an Hispanic employee whom Shumpert fired for complaining to the union and testified that although "a lot" of African-American employees likewise complained to the union, she was not aware of any who had been terminated for that reason. Id. at 159:20-160:20.

Similarly, Wesley testified that Shumpert said of Hispanic employees, "anybody who doesn't want to comply with our practices, get rid of their fucking spic asses," and that she specifically mentioned claimants Gladys Navarro (whom she referred to as a "fucking spic bitch"), Elqui Navarro, Eduardo Chavez, and Alberto Garcia. Wesley Dep., Def.'s L.R. 56.1 Stmt., Exh. 76 at 257:2-7, 45:16 (DN 137-4). Patterson, Wesley, and Jackson all testified that Shumpert told them to do whatever it took to get rid of Hispanic employees who were causing trouble, including by planting drugs on them, (Patterson Dep. at 90:12-92:14, 324:18-21) (DN 182-1); Wesley Dep., at 87:15-20, 270:19-271:9 (DN 137-4); Jackson Aff., Pl.'s L.R. 56.1 Stmt., Exh. 6 at ¶ 2 (DN 153-1), or saying they had caught them sleeping, Jackson, Aff. at ¶ 2 (DN 153-1).

Few Hispanic claimants, however, testified that they actually heard Shumpert, or anyone else at RJB, use ethnically hostile language in their presence. Several claimants testified that they were never subjected to, or heard, any ethnic slurs, and other claimants stated that they could recall hearing derogatory terms such as "wetback" used on only one or two occasions over months or years of employment.

B. The Thornwood Claimants

RJB provides janitorial services for Thornton Township High School District 205, which comprises three high schools: Thornwood High School (the work site of the five claimants on whose behalf the EEOC brings claims in this case), Thornridge High School, and Thornton High School. During the school year, RJB employs two shifts of janitors at Thornwood. The parties agree that the day shift generally runs from 6:00 a.m. to 4:30 p.m., although it is likewise agreed that the "normal" shifts of two African-American "day matrons" on the day shift were 7:00 a.m. to 3:30 p.m. (Gloria Kelly) and from 8:00 a.m. to 4:30 p.m. (Rosemary Offett). The night shift runs from 3:00 p.m. to 11:30 p.m. At times relevant to this case, six RJB janitors worked on the day shift, of whom five were African-American and one was Hispanic, and fifteen RJB janitors worked on the night shift, of whom thirteen were Hispanic (including all five claimants) and two were African-American. The project manager at Thornwood was Levetrice Gant, and the assistant project manager, who supervises the day shift, was Shateau Shorter. The night shift supervisor was Carl Rogers. All three supervisory employees are African-American.

RJB's contract with District 205 specifies that "[a]ll heavy cleaning services shall be performed between the hours of 3:30 p.m. and 12:00 midnight, except as needed in special or emergency situations." Def.'s L.R. 56.1 Stmt., Exh. 39 at 3, ¶ H (DN 134-5). The contract also provides that "[a]ll employees of [RJB] must demonstrate the ability to communicate with staff and students in verbal and written English sufficient to read and understand the equipment and supply instructions, labels and safety requirements." Id.

With one exception, the EEOC does not claim that any of the claimants heard RJB supervisors at Thornwood using hostile or derogatory language targeting the claimants' national origin, or otherwise expressing a bias against Hispanics. As discussed in further detail in a subsequent section, the EEOC bases its claims on putative evidence that RJB limited the claimants' overtime opportunities, imposed extra work on them, failed to provide them with cleaning supplies as "readily" as it did African-American janitors, and otherwise harassed them based on their national origin. The EEOC also asserts that one of the Thornwood claimants, Minerva Flores, was terminated because she is Hispanic.

II. Legal Standard

Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when "the pleadings, discovery and disclosure materials on file, as well as any affidavits, demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Hasan v. Foley & Lardner LLP, 552 F.3d 520, 527 (7th Cir. 2008). Ordinarily, the initial burden lies with the movant to demonstrate, based on specific evidence identified in the record, the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In this case, however, after the EEOC objected to defendants' submission of hundreds and hundreds of facts in support of their motions, I allowed the parties, upon agreement, to proceed on the assumption that defendants' facts, if unopposed, would indeed support a judgment for defendants and directed the EEOC to articulate the facts, and to identify the evidence, it believed demonstrated a prima facie case with respect to each claimant entitling it to a trial. I did not, however, require the EEOC to respond individually to each of defendants' asserted facts. Defendants then responded to the EEOC's submissions. In light of the parties' submissions, and after careful review of the record, I then directed the EEOC to respond only to those facts I deemed potentially material to the resolution of defendants' motions.

Although this atypical approach departs from the manner in which summary judgment ordinarily proceeds, the parties' ultimate burdens remain the same: On any issue as to which the EEOC carries the burden of proof, it must come forward with "specific facts showing that there is a genuine issue for trial," doing "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). Because the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff," St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993), to survive summary judgment the EEOC must demonstrate that "the record taken as a whole" could permit a rational fact finder to conclude that the claimants were victims of unlawful discrimination. Matsushita, 475 U.S. at 587.

In determining whether the EEOC is entitled to trial, I must "view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). "Because intent and credibility are typically crucial issues in employment discrimination cases, summary judgment must be approached with caution, and heightened scrutiny of the record is appropriate." E.E.O.C. v. International Profit Associates, Inc., 654 F. Supp. 2d 767, 783 (N.D. Ill. 2009) (citing Talanda v. KFC Nat. Management Co., 140 F.3d 1090, 1095 (7th Cir. 1998)). Nevertheless, if the factual context as reflected by the record as a whole renders the EEOC's claim "implausible," it "must come forward with more persuasive evidence to support [its] claim[s] than would otherwise be necessary." Matsushita, 475 U.S. at 587. "Mere subjective beliefs by the plaintiff-without the backing of hard evidence-cannot prove that an action was inspired by improper motivations." Pilditch v. Board of Educ. of City of Chicago, 3 F.3d 1113, 1119 (7th Cir. 1993).

Title VII prohibits discrimination against an employee on the basis of national origin, among other grounds, with respect to the material terms, conditions, or privileges of employment. 42 U.S.C. § 2000e-2(a). Claims pursuant to this section of the statute may arise out of a tangible, adverse employment action such as a termination, a demotion, or a failure to promote---this is the type of claim most often referred to as "discrimination"--or out of the existence of a hostile or abusive working environment---this is frequently called a "harassment" or a "hostile environment" claim--which need not allege a tangible adverse action. Regardless of how the claim is labeled, however, the ultimate question is whether the employer's conduct materially affected a "term, condition, or privilege" of employment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (explaining that discriminatory harassment, whether based on sex or another protected characteristic, is actionable under Title VII when it is sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." (citation omitted) (original alteration)); Minor v. Centocor, Inc., 457 F.3d 632, 634 (7th Cir. 2006) (characterizing phrase "adverse employment action" as "a judicial gloss [that] must not be confused with the statute itself or allowed to displace the Supreme Court's approach," which inquires whether there has been a "material difference in the terms or conditions of employment").

Title VII also makes it unlawful "for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). This type of discrimination is commonly called "retaliation," Tomanovich v. City of Indianapolis, 457 F.3d 656, 662 (7th Cir. 2006), and it is proven when the employee establishes a causal nexus between an employee's protected, "opposition conduct" and a material change in the terms or conditions of employment. McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996). The protective ambit of this provision extends to employees who passively resist their employer's unlawful discrimination. Id.

In this case, the EEOC seeks monetary damages on behalf of each of the claimants, asserting, at different points, each species of claim identified above.*fn2 The EEOC pursues some claims on a discrimination theory of disparate treatment, arguing that RJB discriminated against some Hispanic claimants on account of their national origin by terminating them (in the case of Chavez, Sergio Medina, Mendoza, Vazquez, Rosales, and Rodriguez); suspending them (in the case of Gladys Navarro); or failing to promote them (in the case of Del Toro, Obregon, Teodoro Medina, Alvarez, and Rosales), while similarly situated African-American employees were not subjected to the same treatment. The EEOC also contends that some Hispanic claimants (Vazquez, Gladys Navarro, Elqui Navarro, Teodoro Medina, Obregon, Del Toro, Lopez, Garcia, and Avila), were harassed

(i.e., subjected to a hostile environment) on account of their national origin. Finally, the EEOC asserts that four claimants, both Hispanic and African-American (Wesley, Jackson, Vazquez, and Navarro), were subjected to retaliation either for failing to discriminate against Hispanic employees or for complaining about discrimination.*fn3

The EEOC may rely on either the direct or the indirect method of proof to establish a prima facie case of discrimination or retaliation. Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring) ("[w]e now have, for both discrimination and retaliation cases, two broad approaches--the "direct" and the "indirect."). Under the direct method, the EEOC may withstand summary judgment of its discrimination claims---which it must do individually as to each particular claimant*fn4 --if it can present sufficient evidence to "permit a jury to infer that discrimination motivated an adverse employment action." Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th Cir. 2011). This means that the EEOC's evidence must point directly to a discriminatory intent on the part of the decisionmaker responsible for each adverse action. Harris v. Warrick County Sheriff's Dept., 666 F.3d 444, 448 (7th Cir. 2012) (to prove discrimination, evidence must establish "that the decisionmaker has acted for a prohibited reason.") (original emphasis) (internal quotation marks and citation omitted). Where the record suggests that more than one individual was responsible for a particular decision, evidence of discriminatory animus on the part of "someone who provided input into the adverse employment decision" is relevant. Hasan v. Foley & Lardner LLP, 552 F.3d 520, 528 (7th Cir. 2008).

Evidence relied upon under the direct method of proof may be either direct or circumstantial. Direct evidence "is something close to an explicit admission that a particular decision was motivated by discrimination," which "uniquely reveals" the employer's intent to discriminate. Diaz, 653 F.3d at 587. Circumstantial evidence, which "suggests discrimination albeit through a longer chain of inferences," id. (quoting Hasan, 552 F.3d at 527), generally falls into one of three categories:

(1) ambiguous statements or behavior towards other employees in the protected group; (2) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically receive better treatment; and (3) evidence that the employer offered a pretextual reason for an adverse employment action.

Id. at 587. A plaintiff need not present evidence in all three of these categories, id., but the circumstantial evidence must together compose a "convincing mosaic of discrimination." Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7th Cir. 1994).

As long as the plaintiff's evidence "creates a triable issue on whether discrimination motivated the employment action," it is entitled to proceed to trial. Diaz, 653 F.3d at 588. "Under the direct method of proof, the plaintiffs are not required to rebut a defendant's non-discriminatory reason for the adverse employment action, as they must under the indirect method." Id. The defendant is entitled, of course, to present its rationale to a jury to defeat the plaintiff's discrimination claims, but it is insufficient to prevail at summary judgment. Id.

To establish a prima facie case of discrimination using the indirect method, a plaintiff must offer evidence that: "(1) she is a member of a protected class, (2) her job performance met [the employer's] legitimate expectations, (3) she suffered an adverse employment action, and (4) another similarly situated individual who was not in the protected class was treated more favorably than the plaintiff." Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012) (citation omitted). If the plaintiff can do this, a presumption of discrimination is triggered, and the employer must then articulate a legitimate, non-discriminatory reason for its action. Id. Once it does, "the burden shifts back to the plaintiff, who must present evidence that the stated reason is a 'pretext,' which in turn permits an inference of unlawful discrimination." Id. (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). Pretext is "more than just faulty reasoning or mistaken judgment on the part of the employer; it is [a] lie, specifically a phony reason for some action." Silverman v. Board of Educ. Of City of Chicago, 637 F.3d 729, 742 (7th Cir. 2012) (original alteration)(citation omitted). If the decision maker "honestly believed the non-discriminatory reason it proffered, the reason was not pretextual." Id.

With respect to the IIT claimants, the EEOC relies on both the direct and the indirect methods for all of its discrimination and retaliation claims, save its failure to promote claims, for which it relies only on the indirect method. With respect to the Thornwood claimants, the EEOC relies on the indirect method for its termination claim on behalf of Flores. (Although the EEOC's "overtime" claims on behalf of the Thornwood claimants also seem to be in the nature of discrimination claims--as opposed to retaliation or harassment--the EEOC does not identify the method of proof under which it proceeds, nor does its argument reference the elements of either approach.)

To establish a prima facie case of anti-Hispanic harassment, the EEOC must prove that as to each claimant asserting such a claim, "his or her work environment was both subjectively and objectively offensive; one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1045 (7th Cir. 2002) (internal quotation marks and citations omitted). The EEOC must further show that the harassment was based on the claimants' national origin; that it was severe or pervasive; and that there is a basis for employer liability. Id. The final element requires a plaintiff to establish that the employer had "actual or constructive knowledge of the harassment and failed to address the problem adequately." Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996)(citing cases).

The foregoing are the basic principles that inform my analysis of the EEOC's various claims. Before turning to the individual claims asserted on behalf of the IIT claimants, however, I pause briefly to address collectively its discrimination claims based on defendants' alleged failure to promote five Hispanic janitors at the IIT site (Alvarez, Del Toro, Teodoro Medina, Obregon, and Rosales). Because the EEOC has uniformly failed to present sufficient evidence to raise an inference of discrimination as to any of these claims, they are appropriate for summary judgment in a single stroke.

III. The IIT Failure-to-Promote Claims

All of the EEOC's failure-to-promote claims assert that the claimants were promoted from call-in to permanent "status" more slowly than similarly-situated African-American janitors, if at all. The elements of a prima facie failure-to-promote claim are that the claimant: 1) was a member of a protected class; 2) was qualified for the position; 3) was rejected for the position; and

4) that the position was given to a person outside the protected class who was similarly or less qualified than the claimant. But rather than identify evidence to establish that any claimant was passed over for any specific position, the EEOC relies on quasi-statistical evidence that simply does not, standing alone, raise an inference that these claimants were discriminatorily denied a promotion.

Indeed, the EEOC's theory is not that these claimants were passed over for specific positions, but instead that they remained in call-in "status" longer than similarly situation African-American employees before being promoted to permanent "status." But even assuming that a transfer to any permanent position represents a promotion for any call-in employee (ignoring, for the moment, the EEOC's opposite argument with respect to one claimant), there is no evidence that defendants promoted any employee from one "status" to the other; instead, defendants promoted call-in employees to specific permanent positions that became available to them. It may be possible to hypothesize a claim based on the EEOC's theory---if, for example, defendants' stated policy were to promote call-in employees to permanent "status" after a certain amount of time (independently of whether the employees also changed positions), and the evidence suggested that Hispanics had to wait longer than non-Hispanics to receive such promotions---but that is not this case.

Accordingly, to avoid summary judgment of its failure-to-promote claims, the EEOC must establish each element of a prima facie case with respect to each claimant. Yet, with respect to two claimants (Del Toro and Medina), the EEOC does not identify any position at all for which the claimants actually applied, asserting instead simply that they were "interested" in permanent positions. With respect to other claimants, the EEOC does not identify the individuals allegedly given positions for which the claimants assert they were qualified but rejected. These omissions make it impossible to infer that the claimants were not promoted to any permanent position in favor of similarly or less qualified, non-Hispanic candidates.

Moreover, on the issue of qualification, the EEOC appears to equate "qualification" with "seniority," since the only evidence it points to in support of the second and fourth elements of its prima facie case---that the claimants were qualified for certain positions, but that those positions were given to less qualified individuals outside the protected group---compares the claimants' "seniority," based on their hire and promotion dates (the latter being the date, if any, on which they obtained a permanent position), with the seniority of certain African-American employees. This is puzzling, in the first instance, because by the EEOC's own account, call-in employees do not accumulate seniority at all. Pl.'s Rule 56.1 Stmt. ¶ 20 ("Unlike permanent janitors, call-in employees did not accumulate seniority.") So the claimants' putative "seniority" over the asserted comparators is an awkward basis for comparing qualifications.

Next, the EEOC seems to imply, with the assertion that the permanent positions these claimants desired were "low-skill positions," that, seniority aside, all employees were equally qualified for any permanent job that became available. But the EEOC's own evidence belies this inference, since the duties associated with the job postings in the record were not uniform across different janitorial positions. Compare, for example, the job posting for the "housekeeping" position identified at page 2 of Exhibit 102 to Plaintiff's Rule 56.1 Statement (listing duties), with the posting for the "custodian" position identified at page 12 of the same exhibit (describing different and additional duties, including "background of at least one year in housekeeping.") (DN 153-11). This is consistent with the collective bargaining agreement between RJB and the local SEIU union, which makes clear that while seniority may be the primary factor, individual ability also plays a role in determining whether an employee is qualified for a particular position. The agreement identifies seniority as "the governing factor," in filling job vacancies, but only "provided the employee has the ability to be trained to perform the job." Def.'s L.R. 56.1 Stmt., Exh. 37 (DN 134-3) at 17. (Emphasis added). Moreover, the same provision specifies that vacant positions can be offered to "qualified replacement [i.e., call-in] employees" only in the event they are not filled by permanent employees.*fn5 (Emphasis added)

For at least the foregoing reasons, the EEOC cannot raise an inference of discrimination based solely on the length of time these claimants, as compared to certain African-American employees, remained in call-in status before being promoted to permanent positions.*fn6 There are simply too many other factors bearing upon the issue (whether any permanent positions became available to call-ins at the relevant time; whether the claimants actually applied for any available permanent positions; the requirements of any specific positions applied for; the claimants' substantive qualifications or "ability to be trained" for those positions; and the qualifications of the alleged comparators, to name a few), which the EEOC fails entirely to address, for such an inference to be reasonable.

Nor can the EEOC discharge its prima facie burden merely by pointing to evidence that certain permanent positions were not posted before being awarded to African-Americans. The EEOC argues that defendants' failure to post a handful of vacant positions (the EEOC does not allege an exact number but identifies four such positions specifically and refers vaguely to several more) before awarding them to African-Americans is sufficient to raise an inference of discrimination against Hispanics, citing Loyd v. Phillips Bros., Inc., 25 F.3d 518 (7th Cir. 1994). But the EEOC's reliance on Loyd is misplaced.

In Loyd, the evidence established that the defendant's employees were classified into three categories (which, for ease of reference, I will call A, B, and C). "A" employees earned the highest salaries, followed by "B"s, then "C"s. The evidence further revealed that all "A"s were male, all "B"s were female, and all "C"s were male. Both "B"s and "C"s were supposed to be equally eligible for promotion to become "A"s, but while "C"s were routinely solicited for, and received, such promotions (no applications were necessary), neither the plaintiff (a "B"), nor any other "B" was ever approached for, or obtained, an "A" position. Indeed, on one occasion, when an "A" position became available and no "C"s were interested, the defendant hired a man from outside the company, despite the defendant's stated preference for hiring from within. Meanwhile, there was no dispute that the plaintiff was qualified for an "A" position.

On these facts, the Seventh Circuit concluded that the plaintiff had established a prima facie case of discrimination, regardless of whether she had affirmatively expressed interest in obtaining an "A" position. As the court put it, "Loyd wonders why she should be required to actively pursue a promotion when her male colleagues are not. So do we." Id. at 522. The court explained that no such showing was necessary to close the "causal gap" between the defendant's decision-making process and the plaintiff's failure to obtain an "A" position. Indeed, it was apparent from the record that the defendant systematically and intentionally excluded qualified women from consideration for "A" positions.

But that is far from the scenario here. There is no dispute that many Hispanic employees held permanent positions, including most of those asserting a failure-to-promote claim, and indeed, one claimant (Rodriguez) who the EEOC claims obtained an unposted permanent position without ever working as a call-in.

Based on the foregoing, I conclude that the EEOC has not carried its prima facie burden as to any of its failure-to-promote claims. I now turn to the EEOC's remaining claims, which I address on a claimant-by-claimant basis, except as to claimants Chavez, Mendoza, and Sergio Medina, and claimants Tony Wesley and Todd Jackson, whose claims I address together.*fn7

IV. The IIT Individual Claims

A. Chavez, Mendoza, and Sergio Medina

The EEOC asserts claims for discriminatory termination on behalf of these claimants, all of whom were terminated following events that occurred on the night of April 26-27, 2007.*fn8 For the reasons that follow, I conclude that the EEOC is entitled to a trial on these claims.

Defendants argue that Chavez, Mendoza, and Medina,*fn9 all of whom were assigned to the night shift in IIT's Life Sciences building, were terminated for sleeping on the job and for job abandonment on the night in question. They cite evidence that at the time these claimants were terminated, RJB was on notice that it would have to cure ongoing problems with the janitorial service it provided to IIT or risk losing the contract. See Feb. 21, 2007, "cure letter" from J. Clemens to R. Blackstone, Def.'s L.R. 56.1 Stmt., Exh. 69 (Feb. 21, 2007) (DN 136-14). Defendants also cite an email from February 8, 2007, in which IIT told RJB, through Tony Wesley, that "the janitorial service for Life Science has gotten to a totally unacceptable level." Def.'s L.R. 56.1 Stmt., Exh. 63 (DN 136-9). In response to this situation, defendants argue, RJB "raised the bar for employee performance," stating that thirty-two written warnings were issued to Hispanic and African-American janitors alike in the three-month period following RJB's receipt of IIT's "cure letter." Def.'s Reply, 46 (DN 166). Defendants then describe a quality-control visit to the Life Sciences building conducted by RJB managers and supervisors Shumpert, Gant, Bass, and Holliday on the night of April 26-27, 2007, and argue that their discovery of Chavez, Medina, and Mendoza in circumstances that suggested they were sleeping, or otherwise failing to perform their assigned tasks, is what prompted their termination. Defendants further point out that Robert Dix, an African-American janitor, was likewise terminated for sleeping on the job just two weeks earlier.

Each of the claimants and numerous RJB employees have testified in detail about the night in question. In their briefs, both sides identify and bring to the fore a host of inconsistencies in the other side's evidence. Indeed, my review of the record reveals a number of inconsistencies, both among the various witnesses' testimony, and, in some instances, across the statements individual witnesses made at various times. At bottom, however, the claimants all testify that they were not, in fact, sleeping, or doing anything other than working, on the night in question, and, as discussed below, the EEOC presents at least some evidence that would "permit a jury to infer that discrimination motivated" their termination. Diaz v. Kraft Foods Global, Inc., 653 F.3d 582 (7th Cir. 2011).

Several witnesses testified that Shumpert---who was undisputedly involved in these claimants' termination--frequently used language, including during management meetings, that suggested hostility towards Hispanic employees, see, e.g., Wesley Dep., Def.'s L.R. 56.1 Stmt., Exh. 57 at 86:7-22 (DN 137-4); Patterson Dep., EEOC Supp. Exh. at 73:3-74:8; 77:19-78:3, 236:19-237:2 (DN 182); that Shumpert had said, in the month before these terminations, that she wanted to "get rid of some of the Mexicans" at IIT, specifically including Chavez, Mendoza, and Medina, see Jackson Aff., Pl.'s L.R. 56.1 Stmt., Exh. 6 at ¶2 (DN 153-1); and that Shumpert had contrived the "lie" that she caught these claimants sleeping as an excuse for firing them. Id. ("She suggested that I plant drugs on them, or say that I caught them sleeping or violating the dress code"); see also Patterson Dep., EEOC Supp. Exh. at 121:5-18; 111:22-112:2 (DN 182-1) (explaining her basis for believing Shumpert's statement that she caught claimants sleeping was a "lie").

The EEOC also points to the suspicious content and circumstances surrounding two, successive incident reports that RJB obtained from IIT's public safety service about the night in question. Pl.'s L.R. 56.1 Stmt., Exh. 61-62. Specifically, the EEOC notes that while Shumpert represented during union grievance proceedings on May 14, 2007, that she had an incident report corroborating her version of that night's events, both of the reports purporting to memorialize the events are dated June 7, 2007. Indeed, the public safety officer who was present that evening testified at his deposition that the report was not written contemporaneously with the events, and further testified that he did not personally write the reports; that they do not reflect what he told his supervisor; and that although the reports are signed in his name, the signature appearing at the bottom is not his. Def.'s L.R. 56.1 Stmt., Exh. 62 at 31:11-335 (DN 136-8). Even more significantly, the officer's testimony flatly contradicted key facts stated in the reports, such as that the officer had heard Medina admit that he had been sleeping. Id. at 28:16-18.

Taken together, I conclude that the EEOC has presented sufficient direct and circumstantial evidence to withstand summary judgment using the direct method of proof. Defendants are free, of course, to present their evidence that Chavez, Mendoza, and Medina were terminated for legitimate, non-discriminatory reasons at trial; but the EEOC is not required, at this stage, to rebut that evidence to raise an inference of discrimination. Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 588 (7th Cir. 2011).

B. Gladys Navarro

It is somewhat difficult to ascertain the precise theory or theories of discrimination the EEOC asserts on behalf of Gladys Navarro. In its memorandum setting forth Navarro's*fn10 prima facie case, the EEOC identifies only claims of harassment and retaliation. Yet, most of the evidence the EEOC cites in support of its claims is neither inherently threatening, nor overtly hostile, nor does it relate to any discrete, adverse employment action. Instead, the bulk of the EEOC's evidence merely chronicles Navarro's perception of inequitable treatment between herself and her African-American colleagues, which suggests a theory of discrimination based on disparate treatment. Indeed, the EEOC does not dispute defendants' factual statement that the EEOC makes "a litany of disparate treatment claims" on Navarro's behalf. Pl.'s Resp. To Def.'s L.R. 56.1 Stmt. IIT, ¶ 164 (DN 185).

At the same time, however, the EEOC concedes that in the six years Navarro was employed by RJB at the IIT site (where she continues to work for the company that now provides IIT's janitorial services), she was never fired or demoted; her pay and benefits were never reduced; and she was never transferred to a less desirable position. In other words, setting aside for a moment her three-day suspension, the EEOC concedes that Navarro did not suffer any specific adverse employment action. Instead, the EEOC argues that its evidence of disparate treatment supports Title VII liability on the theories of harassment and "retaliatory harassment," the latter of which has been recognized, for example, in Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996). On these theories, the only way EEOC can establish that RJB's conduct rose to the level of actionable discrimination is through evidence that Navarro was harassed on the basis of her national origin (which, in this context, may include evidence that she was "exposed to disadvantageous terms or conditions of employment to which [non-Hispanics] were not exposed," Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80,(1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J. concurring))), and that the harassing conduct was severe or pervasive. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)("[N]ot all workplace conduct that may be described as 'harassment' affects a 'term, condition, or privilege' of employment within the meaning of Title VII. ... [T]o be actionable, [harassment] must be sufficiently severe or pervasive.") (internal citations and quotation marks omitted). To the extent the EEOC claims "retaliatory harassment," it must also establish a basis for inferring a causal nexus between Navarro's protected activity and harassing conduct that meets the criteria above.

To this end, the EEOC argues that RJB engaged in a "campaign of harassment" against Navarro. The EEOC cites evidence that: 1) Navarro, but not her African-American co-workers, was required to do extra work; 2) Navarro, but not her African-American co-workers, was required to respond to calls during her lunch breaks without pay; 3) Navarro's requests for help were denied, while the requests of her African-American co-workers were granted; 4) Navarro's name was removed from the "bid sheet" for a vacant position, which was then awarded to an African-American janitor with less seniority than Navarro; 5) Navarro, but not her African-American co-workers, received disciplinary warnings for wearing jewelry at work; 6) Navarro received three warnings on May 26, 2006, eleven days after she filed a charge of discrimination with the Illinois Department of Human Rights, while African-American janitors who had not filed discrimination claims, and who had engaged in misconduct similar to that attributed to Navarro, were not similarly disciplined; 7) Navarro was suspended for three days in July of 2006 for violating RJB's rule prohibiting employees from speaking to the client about company business; 8) Shumpert forced Navarro, but no other employee, to wait outside the office to punch in and out for work, including in the winter time, saying "let that bitch freeze"; 9) Navarro's supervisor failed to provide Navarro with protective gear on one occasion while she used strong cleaning products, but provided protective gear to African-American janitors on the same assignment; 10) Navarro was denied opportunities to work overtime, while African-American co-workers who had less seniority than she were given overtime; and 11) Navarro was called "derogatory names." The EEOC adds to this tally allegations that Shumpert and Ron Blackstone both disliked Navarro and wanted to terminate her because, among other reasons, she was a "pest" who had "repeatedly sued" Blackstone.

Because only discrimination that is "based on" a protected characteristic violates Title VII, I may begin by examining the evidence relating to each of the incidents above to determine whether, when viewed in the light most favorable to the EEOC, it reasonably supports the inference that Navarro was subjected to the complained-of conduct because she is Hispanic. See Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975-76 (7th Cir. 2004). Eliminating those instances in which it does not, I may then turn to the remainder to consider whether the harassing conduct was sufficiently severe or pervasive to be actionable, and whether, in view of all the circumstances, it resulted in a working environment that was both subjectively and objectively hostile. See Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998).

The EEOC's argument that discriminatory harassment can be inferred from evidence that Navarro was "deprived" overtime opportunities; "denied" a bid for a lateral transfer; disciplined for wearing jewelry; and refused protective equipment can all be disposed of in short order. As to the first, the EEOC does not identify a single, specific, instance in which Navarro requested overtime but was wrongly passed over for the opportunity in favor of an African-American janitor. The whole of the EEOC's argument appears to be that national origin-based discrimination can be inferred merely from evidence that Navarro worked fewer overtime hours than two African-American janitors, Yolanda Pugh and Lisa (sometimes referred to as Pelissar) Hoskins, both of whom had less seniority than Navarro. But there is nothing inherently discriminatory or harassing in awarding some employees more overtime work than others, and the EEOC cites no evidence to explain why such an inference is warranted. The EEOC makes no comparison, for example, between the availability of Navarro or her putative comparators to work overtime shifts when the opportunity arose, nor does it mention the frequency with which either she or they requested such shifts. There is simply no basis from which reasonably to conclude, based on the EEOC's evidence, that RJB harassed Navarro because of her national origin by wrongfully denying her overtime opportunities.

As to RJB's alleged "denial" of Navarro's bid for a transfer, it is undisputed that the transfer Navarro sought was for a position on the same shift, and for the same pay, hours and benefits. Accordingly, the EEOC sensibly does not argue that Navarro's non-transfer amounted to an adverse action. The EEOC nevertheless insists that the selection of an African-American janitor for the position (who, it is undisputed, left the position after a few weeks, and was replaced, successively, by two Hispanic janitors, one of whom was Navarro's brother, claimant Elqui Navarro) reveals an intent to harass Navarro. In support of this inference, the EEOC relies on evidence that "somebody" crossed Navarro's name off the bid sheet (Navarro admits she does not know who), and that when Navarro grieved the issue, RJB "falsely accused" Navarro of removing her own name from the list, then "said she did not get the job because her name was crossed off the list." Pl.'s L.R. 56.1 Stmt. ¶ 315. This evidence does not remotely support an inference of discriminatory animus. To begin with, two of the three exhibits the EEOC cites (EEOC Exhs. 78 and 79) do not even relate to Navarro's claim that she was wrongfully denied a transfer.*fn11 Moreover, the EEOC offers no evidence that the decision maker (whom the EEOC does not identify) knew that in fact, someone other than Navarro had crossed off her name, or that the decision was otherwise in bad faith. And even assuming that RJB's stated basis for declining to transfer Navarro was mistaken or even pretextual, the evidence does not plausibly suggest that the real reason it declined her request for a lateral transfer, to a position that offered her no material advantages over the one she then held, was an intent to harass her because she is Hispanic.

In support of its claim that RJB inequitably enforced its uniform policy against Navarro as part of a campaign to harass her, the EEOC cites evidence that Navarro was reprimanded for wearing jewelry while similarly-situated African-American janitors were not. Again, the EEOC does not argue that these reprimands materially altered the terms or conditions of Navarro's employment, but asserts instead that they reveal defendants' intent to harass Navarro based on her national origin. Its evidence again falls short. First, the reprimands were issued by Patricia Figueroa, who is Hispanic (although, of course, no "conclusive presumption" of non-discrimination attaches to that fact, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998)), and who the EEOC does not claim discriminated against Hispanics, undermining any inference that the allegedly inequitable application of RJB's uniform policy was based on Navarro's Hispanic origin.*fn12 Moreover, the EEOC offers no evidence that these reprimands were issued ...


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