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Dora Soto v. City of Aurora

May 17, 2013

DORA SOTO, PLAINTIFF,
v.
CITY OF AURORA, DEFENDANT.



The opinion of the court was delivered by: Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER

Plaintiff Dora Soto brought this suit against the City of Aurora, alleging workplace discrimination and harassment on the basis of age (Count One) in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., and workplace discrimination and harassment on the basis of national origin and race (Counts Two and Four) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, respectively.*fn1 R. 1, Compl. at 11-18.*fn2 She also brings a Title VII retaliation claim (Count Three). Id. at 15-16. The City moves for summary judgment on all claims. R. 27. For the reasons that follow, the City's motion is granted in part and denied in part.

I. Background

In deciding this summary judgment motion, the Court views the evidence in the light most favorable to the non-movant, Soto. Dora Soto is a Hispanic woman who was born in Mexico in 1967. DSOF ¶ 1. Although Soto is currently employed by the City of Aurora as an administrative secretary, she was previously a probationary employee in the City's telecommunications department (Telecom) from May 23, 2011 to October 24, 2011. Id. ¶¶ 1, 24, 37. Telecom in Aurora is responsible for, among other things, answering all 911 calls and dispatching police officers and the fire department. Id. ¶ 10.

To advance within Telecom, new hires, called probationary employees, are put on a 34-week training program. Id. ¶ 14. That program consists of multiple-week training phases, including call-taking training, fireboard training, and police dispatch training, and is overseen by certified training officers. Id. at ¶¶ 14-15. Each day, a probationary employee's Training Officer completes a daily observation report (DOR), in which the Training Officer rates the trainee's performance in specific areas, using a one-to-five scale (five being the best), and also adds commentary. Id. ¶¶ 16, 17. The Training Officer and the probationary employee then review the day's DOR together. Id. ¶ 16. The emergency dispatch supervisor (who is in charge of overseeing the department's daily activities and coordinating training) also reviews those reports with Training Officers and probationary employees every two to three weeks. Id. ¶¶ 10, 13, 16. If probationary employees pass the training program, they attain the rank of TCI, or telecommunications operator I. Id. ¶¶ 10, 14.

In April 2010, Soto was hired as a probationary employee for a TCI position. Id. ¶ 20. Although she was hired in April, she did not start working in Telecom until over a year later. Id. ¶ 24. Instead, the City decided to delay her transfer because it planned to move Telecom into a new facility with new telephone and computer systems, and believed that it was inefficient to ask Soto to start training on soon-to-be obsolete systems. Id. ¶ 22. When Soto asked Lieutenant Nicholas Coronado-who at that time supervised Telecom-why she was not given a prompt start date, Coronado told her that she was "no spring chicken," and explained that it was best for her to wait until Telecom was moved into the new facility because "it will be easier for [her] to learn the new system without having to remember the old system because as we get older, we tend to not grasp new concepts." Pl.'s Resp. DSOF ¶ 10; DSOF ¶ 23; R. 43-1, 8/23/12 Soto Dep. 108:23-109:7, 109:24-110:3.

Soto eventually began training in May 2011. DSOF ¶ 24. Her assigned Training Officers were Barbara Mitchell, Laurie Davis, and Tracie Whalen, who are all white and about the same age as Soto (Mitchell and Davis were both born in 1966 and Whalen was born in 1969). Id. ¶¶ 15, 26. This was not Soto's first stint in Telecom-she previously worked as a Telecom operator from 1993 until 2002, when she transferred to other customer-service and administrative positions within the City, id. ¶ 4-but her second go-round went much less smoothly than her first. Throughout her training, Soto's Training Officers consistently rated her with 2s and 3s (out of a best-is-5) on her DORs in the areas of information processing, decisionmaking, problem solving, call taking, and multitasking. Id. ¶ 30. After about two-and-a-half months of bad reviews, Diana Tousignant-Telecom's emergency dispatch supervisor during Soto's training-issued Soto two Performance Improvement Plans (PIPs); the first PIP had apparently miscalculated how long Soto had been in training. Id. ¶¶ 13, 31-32. Soto's revised PIP was intended to help her improve her call-taking skills by giving her one-week training extensions, which allowed Tousignant and Soto's Training Officers to decide at the end of each extension week whether to advance her to the next training phase. Id. ¶ 33; R. 30-21, Def.'s Exh. 18.

Despite this PIP, Soto's ratings did not improve and she was not advanced to the next training phase. Soto then complained about her training to various people, both in Telecom and in the City's HR Department, in August and October 2011. DSOF ¶¶ 34, 36. At these meetings, she expressed that she had problems with her equipment and that Telecom operators were talking about her behind her back and being rude to her. Id. ¶¶ 34, 36. Members of her union also met with Tousignant and the City's HR Director to discuss Soto's training, where they relayed that Soto believed that Telecom operators were sabotaging her training and that she was not being allowed to learn from her mistakes; she did not wish, however, to file a formal complaint at that time. Id. ¶ 35. Indeed, while she was employed at Telecom, Soto never complained that she was being harassed or discriminated against on the basis of her race, national origin, or age. Id. ¶ 34.

But in this litigation, Soto testified that, throughout her training, she in fact was discriminated against because of her race, national origin, and age; in other words, Soto did complain about her treatment, but did not complain, back then, that the treatment was based on race, national origin, or age. Within her first month, Soto complained to Tousignant that she had problems hearing through her telephone equipment. Id. ¶ 28. Tousignant found no problems with her equipment but offered her a different headset and a customized earpiece. Id. ¶ 29. Tousignant testified that "nobody scored [Soto] lower based on that she couldn't hear someone," R. 43-3, Tousignant Dep. 113:7-8, but one of Soto's co-workers testified that not being able to hear "would certainly affect her trainer and her training itself. If you can't hear somebody, that might affect your training." R. 37-1, Pl.'s Exh. 1, Gumz Dep. 31:17-20. And Soto believes that her ratings suffered because trainers assumed that she was not picking up calls fast enough, thus discriminating against her on the basis of age. DSOF ¶ 49.

Besides her technical difficulties, Soto believes that her trainers intentionally rated her poorly no matter what she did. For example, Soto testified about one time where a substitute Training Officer slept for six hours of an eight-hour shift yet still gave Soto a negative evaluation (although the evaluation might not have counted anyway because it was made by a substitute Training Officer). Id. ¶ 48. She also complains that out of all of the other probationary employees, she was the only one who was required to memorize "nature" codes, which are computer codes used to identify the type of incoming call. Id. ¶ 52. She was also held to a higher standard of spelling performance on reports, id. ¶ 53, and was not allowed to use a notepad or so-called "scratchpad" software to take notes on certain calls. Id. ¶¶ 54-55. Finally, Soto was yelled at by Whalen for another trainee's error. Id. ¶ 75; Pl.'s Resp. DSOF ¶ 75. Soto believes that all of this shows that she was set up to fail because of her race, national origin, and age. See R. 36, Pl.'s Resp. at 8, 10-11.*fn3

Soto also alleges that she was harassed because of her race and national origin. She testified about several incidents. First, Laurie Davis, one of her Training Officers, berated Soto to "pick up that phone" in a "rather hostile way," and asked Soto if she understood Spanish when Spanish-speaking citizens called. Id. ¶ 69. Other trainers also disparaged her by saying, "Dora doesn't know how to look anything up in the system," "Dora doesn't know anything," "[Soto would] never make it through training," and "no one wants to train [Soto]." Id. Second, several Telecom operators once laughed at a photograph of children wearing large black mustaches and waiting in line to hit a pinata at a birthday party. Id. ¶ 70. When asked what the children were dressed as, one of the Training Officers explained, "[T]hey're Mexicans." 8/23/12 Soto Dep. 40:14-17. Third, Mitchell criticized Soto for "badgering this little old lady whose neighborhood had changed" after Soto took a call from an elderly caller about, in the words used by the caller, a suspicious "Mexican truck" parked nearby. DSOF ¶ 72. Finally, on two occasions, Telecom operator Johanna Voirin feigned what Soto believes was a"Mexican accent" on the phone. Id. ¶ 73.

Similarly, Soto alleges that she was harassed because of her age. This alleged harassment came at the hands of Training Officers Mitchell and Whalen. When the City posted an open water-billing position, Mitchell told another Telecom operator (in Soto's presence) to apply for the job because "it is a good way to retire in a water billing position." Id. ¶ 74. Soto believes that Mitchell's comments were related to Soto's age because she was present during this conversation and had previously held a water billing position, plus Mitchell said that it was a "cushy job." Id.; 8/23/12 Soto Dep. 57:5-18. She also testified that Mitchell told another Training Officer that she did not want Soto to make it through training, which Soto believes was based on age because the comment followed a discussion in which Mitchell became aggressive after Soto asked for a copy of a DOR. Id. ¶ 76. Mitchell also asked Soto on a daily basis if she could hear calls, which made her feel old and unable to hear. Id. ¶ 78. Finally, Whalen once told Soto that she did not know why Soto had returned to Telecom after so many years because she has to reacquaint herself with the job even after taking a few weeks off. Id. ¶ 77.

Ultimately, on October 24, 2011, Soto requested to transfer out of Telecom back to a customer service representative position. Id. ¶ 37. In her transfer request letter, Soto stated, "I feel that due to the recent attacks and continued harassment along with the on-going retaliation of the seniority grievance*fn4 filed before my transfer on May 23, 2011, that the City of Aurora has given me no choice but to remove myself from the position of telecom operator I." Id. ¶ 37; R. 30-6, Def.'s Exh. 3.

The City granted her request. DSOF ¶ 37. Soto then had a follow-up meeting with union officials and City HR employees, and sent them more letters, where she further complained that her trainers had treated her poorly, but did not state that she was being discriminated against or harassed because of her age, race, or national origin. Id. ¶¶ 38-40. On November 18, 2011, Soto filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and the Illinois Department of Human Rights, in which she alleged age and national-origin discrimination, harassment, and retaliation. Id. ¶ 2; Pl.'s Resp. DSOF ¶ 2; R. 1-1, Compl. Exh. A. After she received a right-to-sue letter from the EEOC, Compl. Exh. B, this litigation ensued.

II. Standard of Review

Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Centr., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008).

III. Analysis

A. Race, National Origin, and Age Discrimination

Soto's complaint appears to allege that the City discriminated against her in two main ways: first, by delaying her transfer to Telecom until May 2011 even though she was hired in April 2010; and second, by intentionally preventing her advancement through training and eventually to the TCI position. See Compl. ¶ 19. At the outset, the City argues that Soto's delayed-transfer claim is untimely. R. 28, Def.'s Br. at 3. The Court first addresses this threshold issue before discussing whether Soto was discriminated against (because of her race, national origin, and age) during her Telecom training.

1. Untimeliness of the Delayed-Transfer Claim

Before filing an employment discrimination lawsuit in federal court, a would-be plaintiff must file an EEOC charge within 300 days of the conduct underlying the discrimination claim. 42 U.S.C. § 2000e-5(e)(1); Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011) (citations omitted). Any complaint of conduct occurring more than 300 days before the filing of the EEOC charge is time-barred. Id. (citation omitted). Soto's claim that the City delayed transferring her to Telecom for more than a year because of her age is based on Lieutenant Coronado's statements that she was "no spring chicken," and that "it will be easier for [her] to learn the new system without having to remember the old system because as we get older, we tend to not grasp new concepts." Pl.'s Resp. DSOF ¶ 10; DSOF ¶ 23; 8/23/12 Soto Dep. 108:23-109:7, 109:24-110:3. But even assuming that these comments are evidence that the City discriminated against Soto because of her age, Soto learned that the City was delaying her transfer on July 8, 2010, DSOF ¶ 22, and Soto did not file her EEOC charge until November 18, 2011. Compl. Exh. A. The filing date of her EEOC charge was thus more than 300 days after the conduct underlying Soto's delayed-transfer claim occurred, meaning that claim is time-barred. Perhaps recognizing this, Soto responds that she "is not claiming that the hire/transfer, itself, ...


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