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Bienvenido Vierneza v. Schenker

September 5, 2012

BIENVENIDO VIERNEZA, PLAINTIFF,
v.
SCHENKER, INCORPORATED, D/B/A DB SCHENKER, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge:

MEMORANDUM OPINION

This matter is before the Court on Defendant Schenker, Inc.'s ("Schenker") motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Schenker's motion for summary judgment with respect to Counts IIX is granted. Count X is dismissed without prejudice.

BACKGROUND*fn1

Plaintiff Bienvenido Vierneza ("Vierneza"), an Asian male of Filipino national origin, filed a complaint sounding in retaliation and discrimination due to his sex, race, and national origin against Schenker, his former employer. Schenker was a global freight-forwarding company that provided logistics services for customers worldwide.

Schenker maintained a facility in Des Plaines, Illinois (the "facility") in which it warehoused customers' freight. Schenker also maintained a loading dock at the facility, where dock workers would load and unload freight from tractor trailers. Schenker acquired the facility on March 1, 2006 from BAX Global, Inc. ("BAX").

Vierneza had worked at the facility since 2000, first as a BAX employee, then with Schenker from March 2006 until September 2010. He worked primarily as a dockhand. His duties included loading and unloading freight from tractor trailers, managing inventory, and operating a forklift. He generally worked the shift from 4:00 p.m. to 12:30 a.m.

Schenker held monthly meetings instructing dockhands on proper loading procedures. Schenker would also track which employee was responsible for loading and unloading a particular piece of freight by requiring each dockhand to scan the goods with a handheld scanner. A dockhand activated the scanner by entering his identification badge number or social security number.

All Schenker employees, including Vierneza, received an Employee Handbook (the "Handbook"). The Handbook outlined Schenker's Equal Opportunity Policy, which provided that the company recruited, hired, trained and promoted persons without regard to race, color, religion, sex, sexual orientation, national origin, age, disability or veteran status. The Handbook also contained Schenker's Harassment-Free Workplace Policy, which set forth a reporting procedure for bringing instances of harassment to management's attention. The policy instructed employees to report harassment to a supervisor or Schenker's Human Resources Department ("HR"). All employees, including Vierneza, were required to sign an acknowledgment form affirming that they had received and reviewed the Handbook, and that they understood that their employment was terminable at-will. Vierneza signed the form on January 28, 2009.

From 2007 through March 2010, Rosy Miguel ("Miguel"), a Schenker Dock Supervisor and Vierneza's immediate superior, subjected Vierneza to unwanted harassment. She sent Vierneza sexually explicit pictures via text message, called him names like "homosexual" and "faggot," told him that "all Philippine men have small genitals," asked him on numerous occasions if she could hold his genitals, touched her crotch numerous times while in Vierneza's presence, and twice "swiped" Vierneza's paycheck through her genital region before handing it to him. Vierneza did not report Miguel's conduct to any Schenker employees, and no one at Schenker witnessed Miguel's conduct.

On March 8, 2010, Hector DeJesus ("DeJesus"), the facility's Warehouse Manager, received a phone call from a representative at Schenker's Fort Wayne, Indiana facility. The representative notified DeJesus that he had received a truckload that originated from the Des Plaines facility that was loaded with the wrong freight.

DeJesus, who was responsible for personnel issues involving dockhands on his shift, maintains that he investigated the matter and determined that Vierneza was responsible for the misloaded freight. DeJesus accused Vierneza, who denied responsibility and blamed another dockhand. On March 12, 2010, DeJesus met with Vierneza and issued him a Coaching and Counseling Form ("written reprimand"). Vierneza refused to sign the form, and continues to deny responsibility for misrouting the March 8th freight.

On March 31, 2010, Vierneza filed a Charge of Discrimination with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC") ("March EEOC Charge"), in which he complained that

(1) Miguel's conduct amounted to sexual harassment; (2) the written reprimand resulted from Schenker's discrimination on the basis of his race, national origin, and sex; and (3) the written reprimand was in retaliation for a previous IDHR Charge that Vierneza filed against Schenker in August of 2003. Schenker was notified of the March EEOC charge sometime in April of 2010, marking the first time that anyone in the company's management became aware of Miguel's conduct. Kelly Hitchcock ("Hitchcock"), a Schenker HR representative who was not based at the facility was sent there to investigate the matter. She met with Vierneza on April 28th, at which time he described Miguel's conduct and his feeling that DeJesus did not treat him as well as the other dockhands, most of whom were Latino. When Hitchcock asked Vierneza why he did not first report these allegations internally in accordance with Schenker's harassment reporting procedure, Vierneza responded that both of his immediate supervisors were the persons harassing him and that Schenker did not have any HR employees at the facility. After investigating Vierneza's sexual harassment allegations, Schenker terminated Miguel for violating the company's anti-harassment policy on June 24, 2010.

On August 5, 2010, Vierneza backed a forklift into a storage rack. The parties disagree over the extent of the damage to the rack. Vierneza alleges that the damage amounted to little more than a scratch, while Schenker claims that the rack had to be dismantled, which caused a loss of storage space. A week later, on August 12th, a truckload of flat-panel LCD televisions was loaded at the facility, along with a large crate stacked on top of the televisions (the "Wichita load"). During transit to Schenker's Wichita, Kansas warehouse, the crate toppled over and crushed several televisions. Upon the truck's arrival, a worker at the Wichita location emailed Stan Nephew ("Nephew"), the Des Plaines facility's general manager, and informed him that the load "looked like it was loaded with a bull dozer," and that the Wichita facility "would have 20 [Damaged Freight Reports] to enter, not to mention lost revenue." Nephew forwarded the email to DeJesus and Don Scola, another warehouse manager at the Des Plaines facility, and instructed DeJesus to investigate the matter. DeJesus determined that based on Schenker's scanning system, Vierneza was responsible for loading the trailer and for damaging the Wichita load. Lee Sininger, Schenker's nationwide Director of HR, suggested that discharging Vierneza was appropriate under the circumstances. DeJesus, Nephew and Scola agreed.

On September 2nd, Sininger telephoned Vierneza and informed him that his employment was terminated for the damage that he caused to the Wichita load. Vierneza continues to deny that he was responsible for loading the truck and damaging the televisions.

Vierneza brought this 10-count lawsuit against Schenker for discrimination under the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. § 1981 based on his sex (Count I), race (Counts II and V), national origin (Counts III and VI), and for retaliatory discharge (Counts IV and VII). Vierneza also claims that Schenker failed to pay him for 2.32 hours of accrued, unused vacation time in violation of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq. (Count VIII) and the Illinois Wage Payment Collection Act ("IWPCA"), 820 ILCS 115/1 et seq. (Count IX). Finally, Vierneza ...


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