The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiff McKinley Lambert filed a four Count Complaint alleging a hostile work environment based on sexual harassment and racial discrimination. Lambert also alleges retaliation and wrongful termination based on his complaints of racial and sexual harassment. Defendant *fn1 Peri Formworks System, Inc. ("Peri") moves for summary judgment. For the reasons set forth below the motion is granted.
Peri provides concrete forms and scaffolding used in construction, and has more than twenty facilities across the country. Peri employs general laborers as yard workers who inspect, repair, and organize concrete forms and scaffolding, and take inventory of material returned from construction companies and load and unload trucks. Yard leads are employees who lead teams of yard workers on their duties throughout the day. Yard leads do not have the authority to hire or fire or discipline employees. Laborers were told that they had to follow yard leads' orders or face discipline. A yard manager oversees the yard leads and the general laborers or yard workers. Yard Managers have the authority to discipline and suspend employees. A logistics manager oversees all operations at the facility, including supervising the yard managers and yard workers. The logistics manager can hire, fire, and discipline employees.
McKinley Lambert was hired as a general laborer at Peri's Calumet Park, Illinois, facility in September 2003. Jesus Santiago was yard lead when Lambert was a laborer. Santiago and Lambert had a close relationship. Santiago was promoted to yard manager in March 2006 and began reporting to Robert Wallace who became the logistics manager. While Lambert was employed at Peri three people held the position of logistics manager: Dave Mokhtarian, Christie Gouwens, and Robert Wallace. Lambert had observed Mokhtarian discipline employees. Tom Burkhart was the regional manager and was generally present at the Calumet Park facility two days a week. Lambert saw Burkhart sparingly. Peri's human resources personnel are all located at its corporate headquarters in Maryland. Tami Osheroff is Peri's national human resources manager. Peri employees could call Osheroff with any human resources questions. Osheroff regularly conducted day-long announced visits to the Calumet Park facility to conduct training, answer questions, and informally get to know employees. Lambert called Osheroff on at least one occasion with questions about his benefit time.
In September 2006, Santiago gave Lambert a favorable performance evaluation. Santiago promoted Lambert to yard lead in January 2007. According to the findings contained in the Illinois Department of Human Rights investigation report, on May 3, 2007, Wallace noticed that Lambert was acting in a manner inconsistent with his normal behavior. Wallace called Osheroff to review the company's suspicion of alcohol use policy and then asked Santiago to observe Lambert's behavior to confirm whether it was unusual. *fn2 Santiago talked to Lambert and testified that he would not maintain eye contact and his eyes appeared glossy, which confirmed for him that something was not right with Lambert. Osheroff testified that she spoke to Lambert over the telephone and he got very loud and erratic. Wallace, Osheroff, and Santiago made the decision to send Lambert for drug and alcohol testing. Lambert then purchased five cups of coffee, which he consumed in the fifteen to twenty minute car ride to the testing facility with Santiago and another employee. The breathalyzer results indicated that Lambert had consumed alcohol. He was terminated that day.
Peri has a zero tolerance policy for drug and alcohol consumption that mandates testing after an accident and also allows for reasonable suspicion testing. Lambert testified that on one occasion he saw several Hispanic employees drinking beer in the parking lot and that Wallace was in the vicinity, observed it, and did nothing, but Lambert admits he never asked Wallace about the incident. In his affidavit, Lambert's brother-in-law, Lawrence Webb, who had also been terminated by Peri for being intoxicated, stated that Jesus Santiago observed a Hispanic employee drinking beer on the job, but does not state how he knows that Santiago made this obervation.
Lambert alleges that between March 2004 and April 2007 he was sexually harassed daily by his co-worker Hugo Robledo, who would make sexually offensive comments in English and Spanish, including "shake it for me," and "suck my penis," among other comments. Robledo also touched Lambert's buttocks twice and exposed himself to Lambert and other workers in the locker room, stared at Lambert's genitals, and talked to him from an unwelcome distance. Sometime in 2004 or 2005 Lambert complained to Redalfo Avila, a yard lead. Lambert also complained to Santiago sometime in 2005, after he told Avila about Robledo's harassment. Santiago was still yard lead. Santiago testified that he did not believe that anyone was offended by the comments and "horseplay" around the yard.
In May 2005, Peri issued an employee handbook that contained procedures for reporting harassment. Employees were to report harassment to either Tami Osheroff or the company CEO. Osheroff stated in her affidavit that employees could also report to yard managers or the logistics manager. Lambert received the handbook and was aware of the harassment reporting procedure in it. Lambert did not report the harassment to Osheroff or anyone other than Avila and Santiago.
Lambert also alleges that he was subjected to a racially hostile work environment. In April 2007, he went to Serge Berger's work area to inspect some equipment and Berger said, "I don't respect you, you're a nigger." Lambert alleges that he reported this statement to Wallace. Berger was a supervisor in another department and Lambert testified that Berger had no authority over him. Lambert also testified that Berger never directed any racist language toward him during the prior three and one half years they worked together. Lambert also alleges that Wallace referred to laborers as "donkeys" on about five occasions. Lambert never heard Wallace refer to him as a donkey. Peri employed general laborers that were white, African American, and Hispanic, during the time that Wallace referred to laborers as donkeys. *fn3 Wallace also referred to Kevin Lindsay, an African American employee as a "big old gorilla" on one occasion.
Following his termination, Lambert sent a letter to Peri's corporate office on June 4, 2007, complaining of sexual and racial harassment. Osheroff responded on June 19, 2007, indicating that she would investigate all of his allegations and asked him to provide additional information relating to his complaints. Lambert responded on June 26, 2007, but did not provide Osheroff with any additional information.
On October 21, 2010, Lambert filed the instant lawsuit alleging a hostile work environment based on sexual and racial harassment as well as retaliation and wrongful termination. Peri moves for summary judgment on all counts.
A party is entitled to summary judgment if all of "the pleadings,
the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). When considering a summary judgment motion, the Court construes
the facts and all reasonable inferences in the light most favorable to
the non-moving party. Abdullahi v. City of Madison, 423 F. 3d 763, 773
(7th Cir. 2005). However, the nonmoving party "must set forth specific
facts showing that there is a genuine issue for trial."
Serednyj v. Beverly Healthcare, LLC , 656 F.3d 540, 547
(7th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc ., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986) (internal quotation marks and citation omitted)). A genuine
issue of material fact exists "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Id . If the nonmoving party fails to
make a sufficient showing on an essential element of his case, the
moving party is entitled to judgment as a matter of law because "a
complete failure ...