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Tovar v. United Airlines Inc.

United States District Court, N.D. Illinois, Eastern Division

November 1, 2013


Page 863

Ricardo Tovar, Plaintiff, Pro se, Chicago, IL.

For United Airlines Inc, Defendant: Alexis Sullivan Hawley, LEAD ATTORNEY, Seyfarth Shaw, Chicago, IL; Arthur James Rooney, Isabel Lazar, Molly Kristine Eastman, LEAD ATTORNEYS, Ashley Choren Workman, Seyfarth Shaw LLP, Chicago, IL.


Page 864


Hon. CHARLES RONALD NORGLE, United States District Judge.

Pro se Plaintiff Ricardo Tovar (" Tovar" ) sues Defendant United Airlines Inc. (" United" ) for discrimination and harassment on the basis of national origin and sex, and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as genetic information discrimination pursuant to the Genetic Information Nondiscrimination Act (" GINA" ), 42 U.S.C. § 2000ff-1(a). Before the Court is United's motion for summary judgment. For the following reasons, summary judgment is granted in favor of United.

Page 865


A. Local Rule 56.1

District courts have broad discretion " to require strict compliance with its local rules governing summary judgment." Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (internal quotation marks and citation omitted). United filed its motion for summary judgment on July 2, 2013 which included Local Rule 56.2 notice to Tovar, proceeding pro se, of the consequences of failing to respond to the motion. Pursuant to Local Rule 56.1, a litigant opposing a motion for summary judgment must file " (1) any opposing affidavits and other materials referred to in Fed.R.Civ.P. 56(e); (2) a supporting memorandum of law; and (3) a concise response to the movant's statement." N.D.Ill. LR 56.1(b). The Court ordered Tovar to file a response on or before July 24, 2013. On July 23, 2013, Tovar filed a motion for an extension of time to file his response because discovery motions remained pending before the Magistrate Judge. On July 25, 2013, the Court granted the motion for an extension of time in part, giving Tovar until August 13, 2013 to file his response. The same day, the Magistrate Judge denied Tovar's motion to extend discovery with the following exceptions: United was ordered to provide Tovar with a copy of his October 4, 2010 disciplinary letter and the identity and contact information of the flight attendants who complained about his aggressive behavior.

Notwithstanding his extension of time to file a response, Tovar failed to file any pleading in opposition to United's motion for summary judgment. Instead, on August 14, 2013--after the deadline to file his response--Plaintiff filed a pleading captioned, " Motion for to [sic] Reconsider an Extension to Respond to Summary Judgment," which was denied. It is well established that pro se litigants are required to comply with procedural rules. Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008) (citing McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993)). Because Tovar failed to respond to the instant motion, all material facts set forth by Defendants are deemed admitted. N.D.Ill. LR 56.1(b)(3)(C); See also Parra v. Neal, 614 F.3d 635, 636 (7th Cir. 2010).

B. Facts

Tovar was hired by United for the position of Supervisor -- Onboard Service in August 2009. Tovar reported to Rita Donovan (" Donovan" ), Operations Manager, and Jackie Barnes (" Barnes" ), Operations Manager. Donovan and Barnes reported to Anthony Nicastro (" Nicastro" ), Manager -- Onboard Service. United terminated Tovar's employment on January 14, 2011, following an investigation into his allegedly threatening, intimidating, and demeaning behavior towards coworkers.

In February 2010, Tovar was placed on a performance improvement plan because, during the previous three months, he had not been performing his assigned work in accordance with the goals and objectives for his position. In his first performance review with Barnes, conducted on March 2010, Tovar received an " unsatisfactory" rating for both accountability and performance. Barnes also addressed Tovar's communication problems with flight attendants between September 2009 and December 2009. In his mid-year review with Barnes, Tovar received an overall rating of " under performs." The review specifically provided that Tovar " had difficulties in understanding how to perform his duties." Def. United Airlines, Inc.'s Rule 56.1 Statement of Undisputed Material Facts ¶ 14.

Page 866

On June 28, 2010, Pedro Arreza (" Arreza" ), a flight attendant, filed a complaint regarding Tovar's behavior during a June 24, 2010 flight delay investigation. According to Arreza, Tovar told him that he should refuse the captain's decision to delay the flight or tell the captain that the flight could leave without the provisions they needed. Additionally, Arreza reported that he questioned Tovar's judgment because the Flight Attendant Operations Manual states that the captain makes the last decision. Arreza also stated that Tovar threatened to write him up and reflect this in his work history if he did not listen to him.

On August 30, 2010, Karen Brown, a flight attendant, filled out a supervisor feedback form, stating that Tovar was not courteous, caring and respectful to her and others on a flight.

Linda " Robbi" McMinn (" McMinn" ), a flight attendant, complained that Tovar yelled at her on a flight on September 9, 2010. Tovar told her four times, " YOU HAVE TO RESPECT ME!" Def. United Airlines, Inc.'s Rule 56.1 Statement of Undisputed Material Facts ¶ 17 (internal quotation marks and citation omitted) (emphasis in original). McMinn reported that although she told Tovar she " was uncomfortable being alone with him and for him to back away," he refused to back away from her. Id. (internal quotation marks and citation omitted). McMinn also complained that " in all [her] 43 years with United Airlines [she] never had a confrontation with her supervisor," and that this incident with Tovar was " incredibly horrible," " [she is] still upset about it," and " it is unbelievable that anything such as this could happen at United Airlines workplace." Id. (internal quotation marks and citation omitted) (alterations in original). Judy Steinberg, a fellow flight attendant, reported that she observed Tovar raising his voice to McMinn, telling her that she " needed to respect him," and that McMinn was shaken by Tovar's " bullying tactics." Id. ¶ 18 (internal quotation marks and citation omitted). Following the September 9, 2010 incident, Barnes flew with Tovar on his next flight to provide surveillance on his behavior.

On September 16, 2010, Carlton Donnell (" Donnell" ), a flight attendant, submitted a flight attendant report, stating that he had a miscommunication with Tovar regarding a procedure in the Flight Attendant Operations Manual. Tovar told Donnell that he would tell him where to find the provision in the manual, but never followed up on the matter.

On September 17, 2010, another flight attendant, Cecelia Jordan (" Jordan" ), filed a complaint against Tovar after she was penalized with a " did not fly" (" DNF" ) on her record. Jordan stated that after an emergency landing on September 4, 2010, Tovar advised her and her flying partners that they were released and given time off for their trips, and that he would contact each of them on September 5, 2010 to check how they were doing; but, she never heard from him. In response to Jordan's complaint, on September 23, 2010, Tovar complained to Barnes about discrimination and harassment, alleging that when Jordan met with her supervisor, William Forte, regarding the DNF she made the statement, " I talked to those two Mexicans." Id. ¶ 21. Tovar, however, admitted in his deposition that he did not hear Jordan make this statement, nor any other discriminatory comments. Tovar learned of the alleged statement from Gabe Rinconeno (" Rinconeno" ), who also worked the duty desk with him on September 4, 2010. Tovar also admitted that Rinconeno was not present when Jordan allegedly made the statement.

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On September 26, 2010, Tovar met with Barnes regarding flight attendant complaints, including the complaints from Carlton, Jordan and McMinn. On September 29, 2010, Tovar met with Barnes and Nicastro to discuss the recent flight attendant complaints against him and his demeanor in handling situations. On October 10, 2010, Barnes issued a discipline letter to Tovar stating that he is " viewed as intimidating, demeaning, demanding and difficult." Id. ¶ 24 (internal quotation marks and citation omitted). United offered Tovar any support he felt was appropriate to help him handle situations better. Tovar " accepted ownership and committed to immediately correcting the communication issues . . . discussed." Id. (internal quotation marks and citation omitted). Tovar was also ...

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