United States District Court, N.D. Illinois, Eastern Division
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For Tubonimi Bob-Manuel, Plaintiff: David P. Radelet, Lindsey M. Marcus, Franczek Radelet P.C., Chicago, IL.
For Chipotle Mexican Grill, Inc., Defendant: David Joseph Stein, Pretzel & Stouffer, Chartered, Chicago, IL; Jacqueline Guesno, Tanya E. Milligan, PRO HAC VICE, Messner & Reeves, LLC, Denver, CO.
MEMORANDUM OPINION AND ORDER
Ruben Castillo, Chief United States District Judge.
Tubonimi Bob-Manuel brings this action against Chipotle Mexican Grill, Inc., alleging employment discrimination on the basis of race and national origin and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ), and 42 U.S.C. § 1981 (" Section 1981" ); discrimination on the basis of age and retaliation in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the " ADEA" ); discrimination on the basis of disability and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the " ADA" ); and retaliatory discharge in violation of Illinois state law. Presently before the Court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Court grants Defendant's motion in part and denies it in part.
Plaintiff is a fifty-five-year-old black, Nigerian-born, United States citizen. (Pl.'s Rule 56.1 Resp. ¶ ¶ 42-44.) Defendant is a chain of " fast casual" restaurants that specializes in Mexican fare. ( Id. ¶ 1.) Defendant operates a restaurant located at 1128 Lake Street in Oak Park, Illinois (the " Oak Park Restaurant" ), where Plaintiff worked from November 16, 2008, until his termination on March 11, 2011. ( Id. ¶ ¶ 1, 10, 41.)
Each of Defendant's restaurants is operated by a set of crew members who are responsible for preparing and cooking food, assembling customer orders, cleaning and maintaining the restaurant, serving customers, and other similar tasks. ( Id. ¶ 2.) All crew members are at-will employees. ( Id. ) Crew members work in three primary work areas: Grill, Prep, and Line. ( Id. ¶ 9.) Grill and Prep are stations in the back of the restaurant, and crew members at these stations are required to maintain proper food handling, safety, and sanitation standards while preparing food; follow recipes; exhibit a cheerful and helpful manner; display a positive and enthusiastic approach to all assignments; and develop positive working relationships with all restaurant personnel. ( Id. ¶ 8.) The Line involves all the positions in the front of the restaurant, which are divided into the tortilla, salsa, expeditor, and cashier stations. ( Id. ¶ 9.) Crew members are assisted and managed by four levels of management (listed in ascending order of responsibility): Kitchen Manager, Service Manager, Apprentice Manager, and General Manager. ( Id. ¶ 3.) The General Manager is responsible for making all employment and operational decisions in the restaurant, including deciding who to hire and fire, deciding who to promote and train, and scheduling employees. ( Id. ¶ 4.) The General Manager is supervised by an Area Manager, whose duties include overseeing a number of restaurants and helping those restaurants reach their goals. ( Id. ¶ 3.)
I. Plaintiff's First Four Months of Employment
General Manager Robert Ruggiero, a Caucasian male, and Apprentice Manager Oscar O'Campo, a Hispanic male, interviewed and hired Plaintiff on November 16, 2008, as a crew member. ( Id. ¶ 10.) Plaintiff alleges that he was specifically hired as a general manager trainee on a fast-track to management. ( Id. ; Def.'s Rule 56.1 Resp. ¶ 26.) Joe Kersjes, a twenty-seven-year-old Caucasian male, was hired on November 22, 2008, as a Service Manager. (Pl.'s Rule 56.1 Resp. ¶ 46.) Both Plaintiff and Kersjes initially trained together with Ruggiero, and they worked frequently together in the back of the restaurant. (Def.'s Rule 56.1 Resp. ¶ 27.) Within a few weeks, however, Ruggiero discontinued Plaintiff's training while continuing to train Kersjes. (Pl.'s Rule 56.1 Resp. ¶ 45.) Plaintiff remained almost exclusively in the back of the restaurant, frequently washing dishes, while Kersjes rotated to other stations. (Def.'s Rule 56.1 Resp. ¶ 28.) Kersjes was promoted to Apprentice Manager at the Elmhurst, Illinois Restaurant on April 27, 2009. ( Id. ¶ 29.) Plaintiff alleges that Ruggiero stopped training him because of his race, national origin, and age. (Pl.'s Rule 56.1 Resp. ¶ 45.) Plaintiff admits,
however, that he never heard Ruggiero make any comments regarding Plaintiff's race, national origin, or age. ( Id. ¶ 47.) Plaintiff also alleges that O'Campo treated him differently based on his race, national origin, and age by making him wash dishes and take out the garbage by himself, by keeping him in the food preparation area, and by refusing to cross-train him. ( Id. ¶ 48.) Plaintiff admits, however, that washing dishes, taking out garbage, and working in the food preparation area are all responsibilities of a Prep employee. ( Id. ) He also admits that he never heard O'Campo make any comments about his race, national origin, or age. ( Id. ¶ 49.)
II. Plaintiff's Performance Issues
Ruggiero was Plaintiff's General Manager for the first four and a half months of Plaintiff's employment. ( Id. ¶ 11.) After Ruggiero left, Jeanine Cruz Chavez, a Caucasian female, became the General Manager of the Oak Park Restaurant and supervised Plaintiff until October 17, 2010. ( Id. ¶ 15.) Area Manager Vicky Kubicki, a Caucasian female, was Chavez's supervisor during Plaintiff's employment. ( Id. ¶ 16.) On June 1, 2009, Chavez recorded in Plaintiff's Development Journal that he needed to work on perfecting his procedure because he made mistakes that would not happen if he took his time, and that he needed to work on completing all Prep tasks by 6:00 p.m. and getting out by 11:00 p.m. ( Id. ¶ 20.) On June 15, 2009, Plaintiff allegedly received his first written warning (a " Performance Discussion" ), stating that on June 13th, he made a batch of guacamole but did not cover it with two lawyers of plastic as he was trained to do; as a result, the guacamole had to be disposed of. ( Id. ¶ 21.) Plaintiff denies that the guacamole incident occurred and he denies receiving the Performance Discussion. ( Id. ) In fact, Plaintiff denies receiving any of the five Performance Discussions that were in his personnel file. (Def's Rule 56.1 Resp. ¶ 15.) Performance Discussions are supposed to be given to employees in a face-to-face meeting and the manager is supposed to confirm receipt, yet none of Plaintiff's Performance Discussions were signed by either Plaintiff or a manager. ( Id. ¶ ¶ 14-15.) Michael Triola, the Human Resources Director for the Central Region, admitted that Plaintiff may have never received the Performance Discussions in his file. ( Id. ¶ 15.)
In 2009, Plaintiff failed to report to work for a scheduled shift on nine occasions. (Pl.'s Rule 56.1 Resp. ¶ 24.) Plaintiff alleges that the schedules posted were not always the final schedule and that Chavez scheduled him to work on days he had requested off due to doctors' appointments. ( Id. ) Chavez also testified that sometimes the schedules changed after they were made. ( Id. ) An undated, unsigned performance review in Plaintiff's file rated Plaintiff's performance in the categories of food, equipment, and customer service as " needs improvement," which is the lowest possible rating. ( Id. ¶ 27.)
In January 2010, Chavez told Julia Kim, Human Resource Generalist, that Plaintiff was not meeting his job expectations and was a low performer. ( Id. ¶ 25.) After reviewing Plaintiff's Development Journal, Performance Discussions, and performance reviews, Kim advised Chavez to have an honest conversation with Plaintiff about expectations on a weekly basis, and then later, on a daily basis. ( Id. ¶ 26.) Erica Arrington, an Apprentice Manager, noted Plaintiff's performance issues in the Oak Park Restaurant's Dear Diary  on several
occasions in early 2010: on February 13th she noted that Plaintiff struggled to keep up with Prep and dishes; on March 4th she noted that Plaintiff did not complete Prep and started marinating a steak at 10:50 p.m. even though he was told not to; on March 25th she noted that Plaintiff needed help closing Prep, did not take any garbage out until closing, and had trouble keeping pace with dishes, and that she found an object in steak he marinated. ( Id. ¶ 28.)
In Plaintiff's second performance review, dated April 2010, he received a " needs improvement" rating in the categories of food, equipment, and customer service. ( Id. ¶ 30.) Triola reviewed a draft of this review, which Chavez had prepared, and suggested changing whatever appeared " inconsistent" or could be seen as " picking" on Plaintiff. (Def.'s Rule 56.1 Resp. ¶ ¶ 20-21.) For example, with regard to the food category, Triola said he " would like to see specific examples that we can back up with documentation." ( Id. ¶ 21.) The version of the evaluation Plaintiff received contained many more details about Plaintiff's performance problems than the version Chavez originally drafted. ( Id. ¶ 22.) For instance, the evaluation recounted one incident where Plaintiff had allegedly lost two cases of chicken due to improper rotating in February 2010. ( Id. ¶ 23.) Plaintiff and Arrington testified that the cases of chicken had gone bad, and when Arrington called Chavez to inform her of this, Chavez told Arrington to have Plaintiff marinate the chicken anyway. ( Id. ) But Arrington and Plaintiff agreed that it would be unsafe to prepare the chicken, so they threw it away. ( Id. ) Chavez denied that she instructed Arrington and Plaintiff to marinate the chicken. ( Id. ) Kubicki testified that she and Chavez discussed the review with Plaintiff, but Plaintiff denies having participated in such a discussion. ( Id. ) In October 2010, Plaintiff received his third performance review, in which he received an overall rating of " meets expectations," but continued to be rated as " needs improvement" in the food category. (Pl.'s Rule 56.1 Resp. ¶ 32.)
On November 8, 2010, Panithan " Sai" Thanawutthikorn, an Asian male, became General Manager of the Oak Park Restaurant. ( Id. ¶ 35.) On November 19, 2010, Plaintiff received an evaluation of " meets expectations," and following this evaluation, he received his first and only pay increase. (Def.'s Rule 56.1 Resp. ¶ 37.) On December 23, 2010, Plaintiff received a Performance Discussion for his tardiness, which stated: " Bob was 15 mins late and did not call. 12/21/10 Bob was 15 mins late but did not call ... at 8:15 to let us know that he will be in at 8:30." (Pl.'s Rule 56.1 Resp. ¶ 36.) Plaintiff was warned: " Please do not be late again. This will be the last write up." ( Id. ) Plaintiff denies that he was late those days, and he denies receiving the Performance Discussion. ( Id. ) Plaintiff's time sheet indicates that on December 21, 2010, he clocked in at 8:14 a.m. ( Id. ) Defendant alleges that Plaintiff reported to work six or more minutes late 32 times between June 8, 2009 and December 23, 2010. ( Id. ¶ 37.) Plaintiff denies these allegations and states that the schedules posted were not always the final schedule. ( Id. ) Plaintiff's time sheets also indicate that on eleven occasions when Plaintiff allegedly committed a violation of Defendant's policies or procedures, he was not at work. (Def.'s Rule 56.1 Resp. ¶ 13.)
Kubicki visited the Oak Park Restaurant between once a week and once a month on average and observed Plaintiff on multiple occasions. (Pl.'s Rule 56.1 Resp. ¶ 17.)
Kubicki observed issues with Plaintiff's performance: he failed to clean his dish area, washed dishes with dirty water, and repeatedly violated food safety standards when he placed chicken and carnitas on the same table. ( Id. ) Kubicki also noted Plaintiff's repeated failure to complete tasks in a timely manner. ( Id. ) Kubicki described Plaintiff's performance as " never satisfactory." ( Id. ¶ 18.) She testified that he would argue with anyone who gave him any constructive feedback, including herself. ( Id. ) She also stated that crew members and managers were afraid of him because of his explosive and condescending demeanor. ( Id. )
Plaintiff denies Kubicki's allegation that his performance was never satisfactory. ( Id. ) Kim testified that Defendant considered Plaintiff's performance to be satisfactory in his November 2010 review. ( Id. ) Arrington testified that Plaintiff was the " Ace in his Place" for Prep, meaning he was assigned to that station during peak hours because he was the strongest employee in that position. ( Id. ) Plaintiff also denies Kubicki's allegation that Plaintiff would argue with anyone who gave him constructive feedback and that crew members and managers were afraid of him. ( Id. ) Arrington testified that Plaintiff never frightened her and that she enjoyed working with him, as he was always professional and polite. ( Id. ) Arrington also testified that Plaintiff was open to feedback if it was constructive, but that Kubicki's and Chavez's feedback was not constructive. ( Id. ¶ 19.) Arrington and Arlene Guerrero, a Service Manager, testified that Plaintiff was a team player, competent employee, and a hard worker. (Def.'s Rule 56.1 Resp. ¶ 36.) Plaintiff always offered his assistance to anyone who needed it when Arrington was a manager. ( Id. ) He went " above and beyond," and was a mentor to Arrington and Guerrero. ( Id. )
III. Events Surrounding Plaintiff's Termination
Thanawutthikorn took an eight-week leave of absence in early March 2011, and Apprentice Manager Veronica Garcia, a Hispanic female, became the acting General Manager for the Oak Park Restaurant. (Pl.'s Rule 56.1 Resp. ¶ 38.) Garcia reported to Kubicki that she had three conversations with Plaintiff because he refused to wear gloves and was eating food while preparing food, which were both violations of Defendant's and Illinois's food safety policies and grounds for termination under Defendant's policies. ( Id. ) Plaintiff denies that he ate while preparing food. ( Id. ) On March 4, 2011, the Oak Park Restaurant management team called and emailed Kubicki with concerns about Plaintiff's attitude and food safety violations. ( Id. ¶ 39.) The email stated that Plaintiff was not respectful in the workplace; that he left a soiled towel on the prep table when the health inspector was inspecting the restaurant on February 28, 2011; that Thanawutthikorn asked Plaintiff to not eat while prepping on March 1, 2011; that Garcia saw Plaintiff eating bell peppers while cutting them, asked him to not eat while prepping food, and Plaintiff asked her " what am I eating?" on March 4, 2011; that Garcia found a soiled towel on the prep table again on March 4, 2011; and that when Garcia asked Plaintiff to check the dining room and dishes on March 4th, Plaintiff became angry and began throwing dishes and using profanity, including " fuck this shit." ( Id. )
Plaintiff denies that these incidents occurred, and his time sheet indicates that he was not at work on March 4, 2011. ( Id. ) Guerrero testified that she never saw Plaintiff leave a soiled towel in the prep area, but that it was done all the time by other employees. (Def.'s Rule 56.1 Resp.
¶ 56.) She stated that other employees did not follow procedures all the time, but no one else's errors were documented as frequently as Plaintiff's. ( Id. ) Guerrero believed she may have written up Plaintiff for an incident where Plaintiff was eating a bell pepper while prepping food, but she did not remember if she saw him eating the bell pepper. ( Id. ¶ 57.) She testified that she would not have documented the incident but for Kubicki's instruction to document everything Plaintiff did. ( Id. ) Arrington testified that it was frequent for employees at the Oak Park Restaurant to use profanity and that Plaintiff swore less often than other employees. ( Id. ¶ 58.) Neither Arrington nor Guerrero were aware of any employees being disciplined for using profanity. ( Id. ) Although the memorandum that accompanied Plaintiff's termination stated that Guerrero heard Plaintiff say " God damn it," she testified that she never heard Plaintiff use profanity or saw him throw dishes or be insubordinate. ( Id. )
Kubicki forwarded the March 4, 2011 email to Triola, seeking advice on how to handle Plaintiff's behavior. (Pl.'s Rule 56.1 Resp. ¶ 40.) Kubicki testified that Triola instructed her to initiate Plaintiff's termination and sent her a termination memorandum that summarized Plaintiff's behavior as described in the March 4th email. ( Id. ; Def.'s Rule 56.1 Resp. ¶ 59.) Kubicki agreed that Plaintiff's behavior warranted termination and carried out Plaintiff's termination on March 11, 2011. (Pl.'s Rule 56.1 Resp. ¶ ¶ 40-41.) Triola admitted that he was involved in drafting Plaintiff's termination memorandum, but he testified that Kubicki made the decision to terminate Plaintiff and that he did not provide any advice as to whether Plaintiff should be terminated. (Def.'s Rule 56.1 Resp. ¶ 60.) Kubicki testified that Plaintiff was terminated based on the incidents described in the termination memorandum and on his overall performance. ( Id. ¶ 61.) Triola testified that Plaintiff was terminated for insubordination only, not for performance reasons. ( Id. ) The position statement Defendant submitted to the Equal Employment Opportunity Commission (" EEOC" ) stated that Plaintiff was terminated for unexcused absences, poor performance, inability to meet Defendant's reasonable expectations, violations of Defendant's Food Safety Policies and Procedures, and insubordination. ( Id. )
IV. Plaintiff's Allegations of Race, National Origin, and Age Discrimination
Plaintiff alleges that Chavez treated him differently based on his race, national origin, age, and disability by keeping him in the kitchen/preparation area, making him wash dishes, making him take out the garbage alone, failing to train or promote him, excessively micromanaging him, making derogatory comments, humiliating him, cutting his hours after he requested an accommodation based on his disability, and denying him a raise. (Pl.'s Rule 56.1 Resp. ¶ 50.) Chavez micromanaged Plaintiff by standing over him and watching him complete tasks that he knew how to do, like marinating meat. (Def.'s Rule 56.1 Resp. ¶ 5.) She also examined the avocado peels in the garbage to check to see if Plaintiff had wasted any avocado, and she checked the size of the lettuce that Plaintiff had cut. ( Id. ) Plaintiff alleges that Chavez called him " Bobo," which he did not like. (Pl.'s Rule 56.1 Resp. ¶ 51.) Plaintiff also alleges that Chavez made fun of his accent. (Def.'s Rule 56.1 Resp. ¶ 2.) On one occasion, after Chavez terminated Chase Wright, an African-American employee, she told Plaintiff, " Bob you're a survivor. I've been wanting to fire you." ( Id. ¶ 3.) Arrington, who was present for this comment, heard Chavez make a substantially
similar statement. ( Id. ) On another occasion, Chavez asked Plaintiff whether he was getting ready to retire. ( Id. ¶ 4.) Arrington stated that Chavez showed a preference for younger workers because she believed they could work faster. ( Id. )
Arrington testified that Chavez told Lloyd Jones, a newly-hired African-American employee, " I hope you don't get mad, but I like to make black jokes." ( Id. ¶ 9.) Soon after, with Arrington's assistance, Jones transferred to Defendant's Elmhurst Restaurant. ( Id. ) Chavez made comments about Arrington's half African-American daughter, such as " why would you have your baby with an afro," and " what is wrong with her hair?" ( Id. ¶ 10.) Plaintiff alleges that racism was rampant at the Oak Park Restaurant, and that it was because of this that Chavez held a mandatory meeting where she stated that discrimination against African-Americans would not be tolerated. (Pl.'s Rule 56.1 Resp. ¶ 51.) Chavez was terminated after two employees complained that she made derogatory comments about African-Americans, but Defendant denies that those complaints were the basis for her termination. (Def.'s Rule 56.1 Resp. ¶ 12.)
To be promoted to Kitchen Manager, a crew member must be proficient and cross-trained on all areas in the back of the restaurant ( i.e. Grill and Prep) and know and follow all procedures. (Pl.'s Rule 56.1 Resp. ¶ 33.) Defendant alleges that Plaintiff was never promoted to Kitchen Manager because he was not cross-trained on all areas of the kitchen. ( Id. ¶ 34.) Plaintiff alleges that he was denied training that had been promised to him at the time of his hire. ( Id. ) Arrington witnessed the training Plaintiff received both at the beginning of his employment and after his initial management training was stopped. (Def.'s Rule 56.1 Resp. ¶ 30.) Arrington testified that Plaintiff was trained on the line sporadically and when there was a line out the door, which made it difficult for him to be successful. ( Id. ) Chavez told Arrington that Plaintiff was not going to be promoted. ( Id. ¶ 1.) Plaintiff alleges that Arrington was promoted over him. (Pl.'s Rule 56.1 Resp. ¶ 52.) Arrington was promoted to Kitchen Manager on September 14, 2009, after receiving a performance review on April 26, 2009, indicating that she met expectations in every category; she was promoted to Service Manager on November 9, 2009. ( Id. ; Def.'s Rule 56.1 Resp. ¶ 6.)
Plaintiff also alleges that Ryan Haydon was promoted over him. (Pl.'s Rule 56.1 Resp. ¶ 53.) Haydon, a thirty-year-old Caucasian male, was hired on November 3, 2009, and was promoted to Kitchen Manager on May 10, 2010, after receiving a performance review of " above expectations" in all categories. ( Id. ) David Resendiz, a twenty-four-year-old Hispanic male, was hired on May 20, 2009, as a crew member; although he was never promoted, he was made a Kitchen Manager-in-training, a position that precedes a promotion to Kitchen Manager. ( Id. ¶ 55; Def.'s Rule 56.1 Resp. ¶ 32.) Arrington observed the training that Haydon and Resendiz received and testified that she, Haydon, and Resendiz were trained on virtually all the stations and received more training and resources than Plaintiff. (Def.'s Rule 56.1 Resp. ...