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Shaunda Davis v. Metropolitan Pier & Exposition Authority

July 3, 2012

SHAUNDA DAVIS, PLAINTIFF,
v.
METROPOLITAN PIER & EXPOSITION AUTHORITY, A MUNICIPAL CORPORATION, CARLOS PONCE AND GEORGE ROSEBROCK, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Shaunda Davis brings suit against her former employer, the Metropolitan Pier & Exposition Authority ("the MPEA"), and two of its employees, Carlos Ponce and George Rosenbrock. Davis alleges that the MPEA retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (Count I); discriminated against her on the basis of race and sex in violation of Title VII (Count II); created a hostile work environment on the basis of race and sex in violation of Title VII (Count III); retaliated against her in violation of the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq., (Count VII); took adverse employment action against her on the basis of race and sex in violation of the Illinois Human Rights Act (Count VIII); created a hostile work environment on the basis of race and sex in violation of the Illinois Human Rights Act (Count IX); illegally interfered with her rights under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., (Count X); illegally intercepted and disclosed oral communications in violation of the Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2511 et seq., (Count XI); and engaged in illegal eavesdropping in violation of the Illinois Eavesdropping Act, 720 ILCS 5/14-2 (Count XII). As against the MPEA, Carlos Ponce, and George Rosenbrock she alleges claims for retaliation in violation of 42 U.S.C. § 1981 or 42 U.S.C. § 1983 (Count IV); adverse employment action on the basis of race and sex discrimination in violation of § 1981 or § 1983 (Count V); hostile work environment on the basis of race and sex in violation of § 1981 or § 1983 (Count VI); and intentional infliction of emotional distress under Illinois common law(Count XIII). Davis seeks both compensatory and punitive damages for the allegedly wrongful acts of the Defendants. Before the Court is the Defendants' Motion to Dismiss Davis's Complaint. For the reasons stated below, the Defendants' Motion to Dismiss is granted in part and denied in part.

I. Background

In deciding the instant Motion, the Court assumes the veracity of the well-pleaded allegations in the Complaint and construes all reasonable inferences in Davis's favor. See Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007) (citing Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006)). Shaunda Davis was hired by the MPEA as an Assistant Construction Manager in October 2005. In May 2007, the MPEA promoted Davis to Assistant Director of Security Systems in the Department of Safety and Security. Upon her promotion, Davis received a substantial pay increase. Davis was the only female assistant director in the Department. As Assistant Director of Security Systems, Davis directly supervised a number of employees.

In September 2009, the Senior Department Director resigned. Davis was promoted to Acting Senior Director of Safety and Security. Upon her promotion, Davis undertook additional responsibilities for which she received a substantial pay increase. Carlos Ponce, the chief of staff to Juan Ochoa, the MPEA's CEO, told Davis that she would remain as Acting Director until a permanent senior director was hired. At the time of her promotion, Ponce promised Davis an increase in her prior salary when she returned to the Assistant Director position. From September 2009 through February 4, 2010, Davis performed both the duties of her prior position as well as the duties of Acting Senior Director of Safety and Security. As acting director, Davis reported directly to Ponce.

In November 2009, the MPEA undertook the first in a series of reductions in force initiatives ("RIFs"). In a face-to-face meeting with Davis, Ponce directed her to identify two security department employees to be terminated in the RIF. At this meeting, Ponce handed Davis a list entitled "department headcount," which identified employees by name, race, and other attributes. In handing Davis the list, Ponce remarked, "You have a lot of Blacks in your department." Davis took this remark as an overt suggestion that she terminate only Black employees. Notwithstanding Ponce's remark, Davis identified two employees in the department for termination in the RIF based solely upon the needs of the department and the welfare of the MPEA. Davis asserts that she did not consider race or any other unlawful criteria in determining whom to fire. Davis sent Ponce an e-mail with the names of the two employees; one was Caucasian, the other Black.

After learning of the identities of the two employees Davis identified for termination, Ponce requested that Davis meet with him. At this meeting Ponce instructed Davis to remove the Caucasian employee from the list. He told Davis that if she did not remove the Caucasian employee that Davis would lose three employees from within her department instead of two. Ponce stated that the third employee would be an administrative assistant, all of whom were Black females. Davis refused to unselect the Caucasian employee for termination. As a result, she was forced to additionally select a Black administrative assistant for termination in the RIF.

Davis alleges that her decision not to unselect the Caucasian employee for termination commenced a series of continuing retaliatory actions against her. In early December 2010, within weeks of Davis's refusal to engage in what she alleges was unlawful race discrimination, Ponce met with Ocha. Davis alleges that at this meeting a decision was made to demote her. On February 4, 2010, Ponce demoted Davis from her position as Acting Senior Director. As a result, Davis suffered an immediate, substantial reduction in pay and responsibilities. Notwithstanding Ponce's promise to increase Davis's salary when she returned to the position of Assistant Director, when she first returned to that position her salary was reduced to the original amount without any increase. Earlier, a Caucasian male colleague who had been similarly promoted to an acting position received a pay increase after being returned to his previous job.

On the same day that Ponce demoted Davis, he instructed the chief operating officer of the Information Systems Department to conduct a secret "analysis" of the MPEA's security system. The "analysis" concluded in a memorandum dated April 14, 2010. The memorandum purported to document various "issues" with the MPEA's security systems. In essence, the memorandum concluded that Davis's security procedures were too tight. Ponce never disclosed the memorandum to Davis; she learned of its existence after Ponce left the MPEA.

In February 2010, while the Information Systems Department "analysis" was being conducted, Davis suffered a miscarriage. As a result, she required medical attention as well as a surgical procedure. Davis then suffered a herniated disk. Due to these conditions, Davis took medical leave pursuant to the Family and Medical Leave Act ("FMLA"). Davis remained on leave until the end of March 2010. While Davis was on leave, Ponce questioned the basis for her leave. Furthermore, during her leave Ponce repeatedly called Davis at home and sent her e-mail demanding her attention to work matters, despite the fact that she had a trained and qualified assistant on site to manage the security system in her absence.

Davis shared her highly personal reason for taking medical leave with Ponce. Nevertheless he continued to issue directives to her. In one instance, Ponce sent Davis an e-mail at 3:00 p.m. on a Friday, insisting that she take immediate action, even if it meant over the weekend. Davis received this e-mail the same week that she learned she would need surgery following her miscarriage. Ponce copied other employees on this e-mail, thus disclosing Davis's personal medical information to others within the MPEA.

When Davis returned to work, she discovered that Ponce had reassigned her staff and redistributed all of her responsibilities to other employees. Davis was therefore stripped of all of her previous responsibilities as Assistant Director of Security Systems. Ponce also instructed Davis to report to a male assistant director who was her equal in rank and whom she had supervised as Acting Senior Director. Furthermore, Ponce directed that Davis be locked out of the MPEA's security systems, thus making it impossible for her to perform her job. As a result, Davis reported to work on a daily basis and sat in her office with no work to perform.

On March 29, 2010, Davis filed an internal complaint alleging race discrimination, retaliation, and violations of her FMLA rights. Two days later she amended the complaint to include additional acts of discrimination and retaliation. The MPEA hired outside counsel to investigate Davis's complaint. On May 17, 2010, Davis received a call from one of the investigators, who stated that they were wrapping up the investigation and that the report would be completed that day. Davis was repeatedly promised that the investigators would meet with her to discuss the results of their investigation and the contents of their final report. However, weeks passed after the report was completed and no meeting took place. Davis alleges that is was suggested to her that the MPEA was delaying the meeting until after Ponce left the MPEA.

In July 2010, Renee Benjamin, the MPEA's general counsel, informed Davis that the investigators' report recognized that the MPEA had a duty to return her to her job duties and responsibilities. On or around July 5, 2010, the MPEA hired George Rosebrock, a Caucasian male, as Senior Director of Security and Safety. Upon assuming the job of Senior Director, Rosebrock was provided a copy of the Information Systems memorandum. Davis alleges that Rosebrock learned of additional information about her from other employees whose motivations were unlawful. Therefore, Davis alleges that Rosebrock immediately and without interruption perpetuated retaliation and discrimination against her.

After promising to meet with Davis "in the very near future" to discuss her "area of responsibility," Rosebrock then repeatedly rebuffed Davis's efforts to schedule the meeting. Davis alleges that Rosebrock took additional actions reflecting the fact that he did not consider her to be equal in stature to other, male, assistant directors. For example, Rosebrock sent an e-mail to security department employees but did not include Davis or her support staff on the e-mail. He also held a staff meeting and allowed the three other male Assistant Department Directors to sit on the dais, while Davis was left in the audience. Davis claims that this was deeply humiliating given the fact that she had previously directed the entire department and supervised all of the department's employees.

When Rosebrock finally met with Davis he told her that he had talked to a lot of people about her and that he had heard that she was difficult. He also disclosed the Information Systems memorandum to her and demanded that she respond to the allegations contained in it in writing. As directed, Davis responded to the memorandum in writing in great detail. She addressed the substantive accusations and also described her belief that the memorandum was generated as a pretext for retaliation. Despite promising to meet with Davis to discuss her response to the memorandum, Rosebrock never met with her notwithstanding Davis's repeated efforts to schedule the meeting. He did, however, continue to prevent Davis from being able to perform her job.

On several occasions Davis pointed out that certain tasks were within her assigned job duties. Rosebrock responded that Davis's job duties were whatever he said they were and that she had no other job duties than what he determined. Continuing through the end of her employment with the MPEA, Davis alleges that Rosebrock perpetuated the unlawful retaliation against Davis and created a hostile work environment based on sex and race.

Overall, Davis alleges that Rosebrock treated her with a disrespect and hostility that he did not exhibit to other employees. This hostility was reflected in his remarks bemoaning "strong-willed women." On one occasion, Rosebrock told Davis that she was "strong-willed" and that women do not "need" to be "strong-willed." Davis alleges that Rosebrock did not make similarly hostile remarks about male supervisors. Rosebrock assigned work so that male employees did not have to report to Davis.

Upon Davis's information and belief, at some point during the period from February 4, 2010 and June 2010, and possibly during Davis's medical leave, the MPEA installed an audio and video recording device in the ceiling of her office. Davis alleges that the MPEA used the equipment to record, among other things, statements that Davis made over her private cellular telephone. Davis learned of the device after Rosebrock was hired in July 2010 when, among other things, she observed an electrician doing something in her ceiling and was then informed by Rosebrock that some unnamed employee had been recorded through a secret camera in a ceiling. In October 2011, after securing another job in her field at a different firm, Davis resigned from the MPEA.

On September 21, 2010, Davis filed a Charge of Discrimination with the EEOC alleging that the Defendants took adverse employment action against her on the basis of race and sex, as well as retaliated against her. On September 23, 2011, Davis received a Right to Sue ...


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