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Deano Golden, Phylon Moore, and Latrice Reed v. World Security Agency

August 2, 2012

DEANO GOLDEN, PHYLON MOORE, AND LATRICE REED, PLAINTIFFS,
v.
WORLD SECURITY AGENCY, INC.,
WORLD SECURITY BUREAU, INC., GLENDON GROVES, AND IBRIHAM KISWANI, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Deano Golden, Phylon Moore, and Latrice Reed have sued World Security Agency, Inc. and World Security Bureau, Inc. (collectively WSB), as well as two WSB employees, Ibriham Kiswani and Glendon Groves. Plaintiffs claim that WSB, Groves, and Kiswani subjected them to a hostile work environment, discriminated against them based on their race (African-American), retaliated against them for complaining about this harassment, caused them emotional distress, and failed to comply with federal and state wage laws. Defendants have moved for summary judgment. For the reasons stated below, the Court grants defendants' motion in part and denies it in part.

Background

WSB is a licensed security company that provides guards for facilities including Chicago Housing Authority (CHA) developments. Kiswani is WSB's operations manager. In that position, he "make[s] sure that the chain of command is followed, [that] paperwork is done correctly, [that] disciplinary actions are accounted for and made," and he oversees other "day-to-day operations." Kiswani Dep. at 19:7-12. Kiswani's brother Muhammad also works for WSB and, among other things, is "involved in investigating employee complaints of harassment or discrimination in the workplace, and providing advice to Field Supervisors in addressing personnel issues." Defs.' L.R. 56.1 Stmt. ¶ 3.

Below the operations manager in WSB's organizational hierarchy are field supervisors, who oversee daily operations at the various work sites. Some field supervisors have the authority to discipline, hire, and fire other employees. Field supervisors oversee site supervisors, who direct guard activities at a particular site. The precise scope of the responsibilities of a site supervisor is a contested issue in this case, and the Court will discuss it in more detail below.

Groves began working for WSB as a security guard in October 2009. He has worked at several CHA sites. WSB initially assigned him to Cabrini Green, later transferred him to Dearborn Homes, and then transferred him to Henry Horner Homes as a site supervisor in February or March 2010. The controversy in this case is based on plaintiffs' alleged experiences with Groves at Dearborn and Henry Horner.

Golden began working for WSB as a security guard in December 2009. After an initial assignment at a facility known at Ickes, he worked for less than two weeks at Dearborn before being transferred to Henry Horner. While at Henry Horner, he worked the same shift as Groves on two occasions and spoke with him once. Golden testified that a resident who was assigned to the "tenant patrol" told him that Groves had used the word "nigger" and that he heard from Hernandez and the other plaintiffs that "Groves had used racial slurs and called some people monkeys." Defs.' L.R. 56.1 Stmt. ¶ 77. Golden never personally heard Groves use a racial slur. Golden testified that submitted three written complaints regarding Groves's behavior, including one based on a tenant's report of Groves's use of a racial slur and another indicating that Golden "fear[ed] for [his] life" because Groves was armed and had indicated a racial bias. Golden Dep. at 127:5-7.

Moore started working for WSB as a security guard in February 2009. After his initial assignment at Ickes, he worked at Dearborn for a few days and was then moved to Henry Horner. On one occasion at Dearborn, he overheard Groves say to another guard, "Look at this monkey." The other guard later told Moore that Groves's comment was meant to refer to Moore. Moore testified that he reported the comment to field supervisor Serfin Herrera. He found out just afterward that he was being transferred to Henry Horner. Upon arriving at Henry Horner, Moore found that Groves was assigned to be his supervisor. Moore again complained to Herrera. Almost immediately after Moore did so, Groves received a phone call. Groves then told Moore that "he wanted to apologize for whatever [Moore] heard." Moore Dep. at 126:5-6. Moore did not accept the apology but did not make any other complaints about the comment.

Moore also testified that "on occasions" he heard Groves "verbally downgrade or talk down to the African Americans in the Henry Horners," including "maybe at least once a day" making statements such as "sit your black ass down" and "[t]hey need to get their black asses in the house." Moore Dep. at 182-183. Moore testified that Groves "may have said things, say, 'zoo animals', or 'they're caged up, they don't want to leave the projects like animals.'" Id. at 186:22-24. Moore never heard Groves use the word "nigger," but he heard from the same tenant patrol member as Golden that Groves had done so. Moore never submitted a written report to any supervisor or manager regarding an incident that he considered to amount to harassment. Other than the comment reported to Herrera, there is no evidence that Moore reported other incidents.

WSB hired Reed as a security guard in June 2009. After her initial assignment at Ickes, Reed was transferred to Henry Horner in the winter of 2009-10. Reed testified that in the spring of 2010, she overheard Groves telling another guard that he "work[s] with a whole bunch of niggers." Reed Dep. at 74:1-2. Reed testified that she told Herrera about this statement. Reed testified that Groves sent her a text message containing an image of stick figures including "a black hangman that was hanging from a rope and the rest of [the] hangmen was white." Id. at 91:9-10. Reed told Groves that she did not think the image was funny, but she did not report it to anyone.

Reed testified that she heard Groves referring to Henry Horner residents' children as "little black-ass boys" and "little niggers," and that he used those or similar words every day the two worked together. Id. at 144. She also testified that she heard Groves use the terms "porch monkey," "spic," and "wetback." Id. She said that she reported to Herrera in March 2010 that Groves was "kind of getting into it with the tenants by calling them black A's and -- well, black ass and little N words, nigger words." Id. at 57:20-22. She testified that she made similar complaints to field supervisor John Henley in March 2010 and to Herrera in April 2010.

In the early morning hours of September 9, 2010, while WSB security guard Victor Hernandez was working the overnight shift, he showed field supervisor Henley an image that Groves had sent him via text message.*fn1 The image depicts "light beer" cans wearing Ku Klux Klan-style white hoods surrounding a darker-colored beer bottle hanging from a rope. The image was accompanied by the statement, "can't keep the dark ones with light ones anymore." Pls.' Resp. to Defs.' L.R. 56.1 Stmt. ¶ 29. Henley reported the image to Israel Ortiz, another field supervisor, who reported it to Ibriham and Muhammad Kiswani. At some point, Hernandez showed the image to Golden, Reed, and Moore. Golden asked Henley to forward the picture to his cell phone. Golden said that his head started hurting after he saw the image. Moore said that he was present when Hernandez showed the image to Kiswani.

Later in the morning of September 9, Muhammad and Ortiz met with Groves at Henry Horner. During the meeting, Groves confirmed that he had sent the text message but said that he had done so inadvertently. The parties dispute what, if any, consequences Groves faced after that. Groves testified that he was suspended for five days and wrote an "apology letter" that was distributed to all the staff. Plaintiffs dispute the timing and distribution of the letter, and they argue that Groves's pay stubs do not reflect that a suspension occurred. Groves was also transferred to another site after the incident, although the parties dispute when and for what reason this occurred.

Golden testified that, at some point, he saw a confederate flag on the handgrip of Groves's firearm and on the rear window of Groves's car. Golden never reported these sightings or spoke with Groves about them. Moore testified that he saw the flag on Groves's gun as well as on a sticker on the glove box inside Groves's car. Moore never reported these sightings or spoke with Groves about them. Reed testified that she saw the flag on the gun but did not report it to management. Reed also said that she saw a flag on the dashboard of Groves's car.

WSB received notices dated October 5, 2010 that plaintiffs had filed charges with the Equal Employment Opportunity Commission (EEOC). These charges included claims that Groves had displayed the confederate flag in his vehicle, on his gun, and on his cell phone. Upon receiving the charges, Muhammad Kiswani and a field supervisor went to the Washington Park site, where Groves was working at the time. They took photographs of Groves's vehicle, which at that time contained an American flag but no confederate flag. They also asked to see Groves's gun, but there was no confederate flag image on it.

On or around October 15, 2010, Golden went to the WSB garage to pick up his paycheck. When he did so, he also received a work schedule that showed that he had been reassigned to a different CHA site. He believed that his commute to this site would be "at least an hour, two hours," whereas his commute to Henry Horner had been "20, 30 minutes." Golden Dep. at 214:9-14. Although he remained on the midnight-to-8-a.m. shift, the new schedule reduced the number of shifts he worked by "a day or two." Id. at 159:5. He testified that he asked why he was being transferred and given reduced hours but received no response. At that point, he "walked down the street and just threw [the schedule] on the floor because [he] was depressed, tired of the harassment, with the headaches and racist stuff [and] just couldn't take it no more." Id. at 158:16-19. He never reported to work at WSB again.

At some point after the EEOC filing, Moore picked up his paycheck and received a new biweekly schedule indicating that he was to work thirty-two hours per week. The schedule did not indicate whether this would be a permanent change. Moore was upset because previously he had been scheduled to work forty hours per week. He asked if he could work more hours but was told he could not. At that point, "[a]fter contemplating on it for several minutes and thinking about what [he] can and can't do with this thirty-two hours, [he] felt that there was going to be no progress in what [he] was doing." Moore Dep. at 78:2-5. He decided that he "couldn't focus on [his] job at hand with so many different things going on within the company," so he turned in his ID card and terminated his employment. Id.

On or around the evening of September 28, 2010, an acquaintance of Reed's named Kenny Bates came to Reed's house along with her cousin. Bates was a resident at Henry Horner, which Reed had found out about in July 2010. The cousin left, and Bates "stayed over." Reed Dep. at 107:6-9. Shortly thereafter, Bates stole Reed's weapon, keys, and car. Later, the police called Reed and told her that Bates had shot and killed himself. A few days later, Reed met with Kiswani and Ortiz. Reed testified that Kiswani told her that "with the issue that just happened, he's going to send me somewhere else." Id. at 112:20-21. "They told me don't worry about it, everything's okay, that, you know, I'ma [sic] put you as laid off until we find you somewhere to go and it will be like in two weeks." Id. at 111:4-7. Kiswani mentioned some other sites where Reed might be able to work, but she testified that she was never reassigned. Instead, she later went to pick up a paycheck and was told to turn in her identification and gun permit, which she understood to mean that her employment had been terminated. She did not work for WSB again. Defendants maintain that Reed was offered other positions but was terminated when she chose not to accept them.

Discussion

Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1090 (7th Cir. 1999); Fed. R. Civ. P. 56(c). A court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "The nonmoving party must offer something more than a 'scintilla' of evidence to overcome summary judgment . . . and must do more than 'simply show that there is some metaphysical doubt as to the material facts.'" Roger Whitmore's Auto. Servs. v. Lake County, 424 F.3d 659, 667 (7th Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

A. Hostile work environment

Plaintiffs assert claims of racial harassment in counts one, two, and three respectively. The cases on which they rely indicate that they intend this as a claim that defendants created or allowed for a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Title VII "prohibits employers . . . from discriminating against their employees based on race." Davis v. Time Warner Cable of Se. Wisc., L.P., 651 F.3d 664, 671 (7th Cir. 2011). Plaintiffs also assert that defendants' conduct violated 42 U.S.C. § 1981, which "prohibits racial discrimination and retaliation against employees when a contractual relationship exists between the employer and employee." Id. "Though the statutes differ in the types of discrimination they proscribe, the methods of proof and elements of the case are essentially identical." Id. at 671-72.

To survive summary judgment, plaintiffs must provide evidence sufficient to show that there is a genuine issue of material fact on four elements: "(1) the work environment must have been both subjectively and objectively offensive; (2) [their] race must have been the cause of the harassment; (3) the conduct must have been severe or pervasive; and (4) there must have been a basis for employer liability." Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 390 (7th Cir. 2010). The third element of this test has also been stated as requiring a plaintiff to show that "the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his psychological well-being . . . although the substance of the inquiry is the same either way." Herron v. DaimlerChrysler Corp., 388 F.3d 293, 302 (7th Cir. 2004) (internal quotation marks and citation omitted).

1. Offensiveness and pervasiveness

Plaintiffs' allegations regarding Groves's behavior essentially fall into three categories: the image of the beer bottles with KKK-like hoods that Groves sent to Hernandez; the confederate flag images on Groves's car and gun; and Groves's use of racial epithets and related language. The Court has no trouble concluding that a reasonable jury could find that the conduct alleged was "both subjectively and objectively offensive" as well as racially based. The proposition that the language Groves is alleged to have used meets these criteria does not appear to be in dispute. See Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) ("Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his subordinates."). The image of the beer bottles depicted a rope clearly meant to represent a noose, which is, "undoubtedly, based on race" because it is "a visceral symbol of the deaths of thousands of African-Americans at the hand of lynch mobs." Porter v. Erie Foods Intern., Inc., 576 F.3d 629, 635-36 (7th Cir. 2009). In addition, "displays of confederate flags in the workplace may support a hostile work environment claim." Ellis v. CCA of Tennessee, LLC, 650 F.3d 640, 648 (7th Cir. 2011).

Defendants contend that, offensive though it may be, the alleged conduct was insufficiently "severe or pervasive" to meet the third element of the test. "In evaluating the severity and pervasiveness of the conduct, [a court] examine[s] all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Smith v. Northeastern Illinois Univ., 388 F.3d 559, 566 (7th Cir. 2004) (internal quotation marks and citation omitted). "We will not find a hostile work environment for mere offensive conduct that is isolated, does not interfere with the plaintiff's work performance, and is not physically threatening or humiliating." Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011).

Although comments "directed at others and not the plaintiff [] do have some relevance in demonstrating the existence of a hostile work environment, . . . the impact of "second-hand harassment" is obviously not as great as the impact of harassment directed at the plaintiff." Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144 (7th Cir. 1997). For example, the Seventh Circuit has contrasted a plaintiff who "was repeatedly subjected to hearing the word 'nigger'" with a plaintiff who "never personally heard [a co-worker] utter the word" and was only informed of the co-worker's comments by others. Smith, 388 F.3d at567 (internal citation omitted). The second plaintiff, who "heard an offensive term directed at a third person once and only learned from others about other offensive comments directed at third persons," had not provided evidence of "an objectively hostile work environment." Id.

The Seventh Circuit has also noted that offensive statements made outside a plaintiff's presence, even if accompanied by "a few [offensive] statements made directly to him," do not constitute "harassment [that is] so severe or pervasive that it alters the conditions of the plaintiff's employment." Thompson v. Mem. Hosp. of Carbondale, 625 F.3d 394, 401 (7th Cir. 2010). In that case, the plaintiff was told by a supervisor that he "could not do what others could do because he was black and [that] she was not sure what her neighbors would think if she invited a black person to her home." He also identified racially offensive statements that he was told about but that were made outside his presence. The Seventh Circuit ruled that this was not "severe or pervasive enough conduct to be actionable under Title VII." Id. "Title VII . . . will not find liability based on the 'sporadic use of abusive language.'" Ford v. Minteq Shapes & Servs., Inc., 587 F.3d 845, 848 (7th Cir. 2009) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

Golden does not allege that any of Groves's conduct was directed at him personally. Instead, his claim is based on having heard from others about Groves's statements and seeing the beer-bottle image that Groves had sent to Hernandez, as well as the confederate flags.*fn2 Moore's claims are similar, except that Moore also claims that he heard Groves making other racist comments, including on one occasion referring to someone as a "monkey" (which, Groves was later told, was a reference to him). As the Court has indicated, these statements and images are undeniably offensive, and the Court does not discount or minimize Golden's or Moore's understandable reactions to them. Nonetheless, in light of Seventh Circuit precedent, the Court concludes that neither Golden nor Moore has presented evidence from which a reasonable jury could conclude that the conduct as they experienced it was sufficiently "severe or pervasive" to support their hostile work environment claims. See id. at 847-48 (finding that plaintiff whose supervisor "once called him a gorilla" could not survive summary judgment because the comment "happened only once, did not impair [plaintiff's] job performance, and [was] insufficiently severe to rise to the level of a hostile work environment"); Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7th Cir. 1998). Golden's and Moore's hostile environment claims thus cannot survive.

By contrast, in addition to the incidents described by Golden and Moore, Reed testified that she personally heard Groves using unambiguous racial slurs, including the word "nigger." Although the words were not directed at her, she said that she heard them on a daily basis throughout her employment. She testified that Groves made her feel unsafe because it seemed possible that the comments would result in violence between Groves and Henry Horner residents. Reed also testified that Groves sent her an image of "a black hangman that was hanging from a rope and the rest of [the] hangmen was white." Reed Dep. at 91:9-10. "[A] noose is one of the most potent symbols of racial oppression -- a symbol of terror and violence." Porter, 576 F.3d at 641 (Rovner, J., concurring). The Court concludes that a reasonable jury could find the conduct Reed experienced, taken as a whole, to be sufficiently severe or pervasive to satisfy the requirements for a hostile work environment claim.

2. WSB's liability

Defendants assert that Reed cannot make the required showing on the fourth element of the test: a basis for employer liability. To survive summary judgment, plaintiffs must show "either (1) that a supervisor participated in the harassment that created the hostile work environment or (2) that [WSB] was negligent in discovering or remedying harassment by . . . co-workers." Montgomery, 626 F.3d at 390. In other words, if a plaintiff demonstrates that the perpetrator of the harassment -- in this case Groves -- was a supervisor, this "triggers strict liability [for WSB], subject to the possibility of an affirmative defense where the plaintiff suffered no tangible employment action." Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004).

Defendants argue first that Groves was not a supervisor. Plaintiffs contend that defendants have "admitted Groves was Plaintiffs' supervisor for Title VII and § 1981 liability," Pls.' Resp. at 11, because defendants in their answer did not dispute the following allegation in the complaint: "That at all times relevant herein, Groves was employed by WSB as an Armed Security Officer and Supervisor." Defs.' Answer ¶ 17. Plaintiffs' contention is incorrect. "'Supervisor' is a legal term of art for Title VII purposes." Rhodes v. Ill. ...


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