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Garcia v. Complete Building Maintenance Co.

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

February 14, 2014



ARLANDER KEYS, Magistrate Judge.

Currently before the Court is Defendants' motion for summary judgment [Dkt #48]. Plaintiff, Rodrigo Garcia ("Mr. Garcia"), filed a five-count amended complaint against Defendants, Bill Anderson ("Mr. Anderson") and Complete Building Maintenance Co. ("Complete"), alleging that Defendants subjected him to a racially hostile working environment; fired him because of his race or because he complained of race harassment; and fired him because he complained to law enforcement about another foreman's criminal conduct. Defendants argue that the undisputed facts demonstrate that Mr. Garcia's termination had nothing to do with race or retaliation; instead, they argue he was terminated on the basis of Complete's financial situation and his lack of productivity as a foreman. For the reasons set forth below, Defendants' motion is granted.

Procedural History

On July 13, 2012, Plaintiff filed his amended complaint against Defendants. [dkt #15]. Defendant Complete answered Mr. Garcia's Complaint and pled affirmative defenses, including, but not limited to, failure to state a claim upon which relief can be granted and that Plaintiff's employment was terminated for legitimate, non-discriminatory reasons. [dkt #16]. Defendant now moves this Court to enter an order granting summary judgment in its favor, arguing that Mr. Garcia cannot establish a genuine issue of material fact that a reasonable jury could resolve in his favor. (Defs.' Reply at p. 1). The parties have consented to proceed before this Court pursuant to 28 U.S.C. § 636(c)(1). [dkt #43].

Factual Background

The facts herein are drawn from the parties' Local Rule 56.1 submissions. [dkt #48, 55, 56, 61]. Each paragraph of the Local Rule 56.1 submissions must refer to the "affidavits, parts of the record, and other supporting materials" that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005). Most of the underlying facts of this case are agreed to and undisputed; it is noted when the parties disagree.

Complete is a commercial roofing company that employs its construction personnel on a seasonal basis; employees generally apply for and receive unemployment during the winter months, and reapply for work at Complete in early spring. (Defendant's Local Rule 56.1 Filing ("Def. St."), ¶¶ 1-2). Mr. Garcia began his employment with Complete in 1989 as a laborer performing roofing work. ( Id. at ¶ 13). Mr. Garcia is of Mexican national origin, or Hispanic. (Plaintiff's Response to Defendant's Local Rule 56.1 Filing ("Pl. Resp"), ¶4). Mr. Garcia enjoyed the financial stability that the work provided, and the seasonal layoff allowed him to return to his native Mexico once a year to be with his wife and children for a few months. (Plaintiff's Local Rule 56.1 Add'l Facts ("Pl. Add'l. St."), ¶32). Eventually, Mr. Garcia's wife and children immigrated to the United States, and his children - once they reached the age of eighteen - began working alongside him at Complete. (Pl. Add'l. St., ¶33).

After his foreman at the time, Al Berlanga, was unable to return to work due to illness, Mr. Garcia was promoted to the position of foreman by Bob Gianatasio in 1996. (Def. St., ¶14). Bill Anderson recommended the promotion along with Bob Majka. Id. When Mr. Garcia worked for Complete as a foreman, he supervised a crew of approximately eight to ten workers. (Pl. Add'l. St., ¶32). Mr. Garcia's personnel file reveals not a single instance of misconduct or discipline. ( Id. at 33).

Mr. Garcia claims that Complete paid him less than similarly-situated non-Hispanic foremen. (Def. St., ¶9). Mr. Garcia admits, however, that he did not know whether the non-Hispanic foremen who were paid a higher wage were paid so because of longer tenure or not. Id. The rates of pay and years of service for foremen at the time of Mr. Garcia's termination were as follows:

Foreman Name Race Hourly Rate Hire Date Promotion Date (2008) Tab Rand Caucasian $39.90 8/18/1976 1981 Marlin Thomas African-Amer. $35.00 4/26/1977 1985 Robin Mildebrath Caucasian $32.70 6/30/1980 1983 Francisco Herrera Hispanic $30.70 8/4/1980 1994 Eusebio Llanes Hispanic $22.70 2/17/1984 2000 Pedro Llanes Hispanic $28.30 5/11/1987 1994 Martin Alvear Hispanic $22.60 3/21/1989 2003 Rodrigo Garcia Hispanic $27.10 5/23/1989 1996


In 2008, Complete claims that, due to the economic recession and substantially reduced jobs and revenue, which jeopardized Complete's ability to remain in operation, only one crew received a bonus - Marlin Thomas' crew. (Def. St., ¶12). Mr. Thomas (African-American) and his crew (Hispanic) received a "bonus" because they traveled to and worked at an out-of-state jobsite for an extended period of time. Id. Mr. Garcia acknowledged the economic recession of 2008, and admits that he did not know whether other foremen received a bonus in 2008. Id.

Also in 2008, Mr. Gianatasio decided, along with Paul Smith, the majority owner of Complete, that due to reduced work orders and substantially reduced revenue, in order to remain in business, Complete management needed to urgently and substantially reduce their salaries. ( Id. at 16). The reductions ranged from 80% (for Paul Smith); approximately 40% for Mr. Gianatasio, Mr. Anderson and Mr. Majka, to 50% for Russ Streeter and Richard Willix (Sales), 30% Paul Smith, Jr. (Service), and 12% for Thomas Sipolt (Estimator). Id. The pay decreases did not affect any of Complete's hourly employees and did not affect any Hispanic or Mexican employees. Id. At around the same time that it was determined that Complete management needed to accept substantial reductions in pay, it was also decided that it was necessary to reduce the number of production crews from seven to six to ensure that the crews employed by Complete had enough work. ( Id. at 17).

Mr. Gianatasio made the decision that Mr. Garcia was the foreman who would not be rehired in the spring of 2009 because he determined that Mr. Garcia was the least productive foreman based upon his review of weekly foremen reports over the years and upon his review of multi-year summary reports of foremen productivity ("Foreman Productivity Reports"). (Def. St., ¶20) It is noted, however, that Mr. Garcia denies that Mr. Gianatasio determined that he should be fired because he was the least productive foreman. (Pl. Resp., ¶20). Mr. Garcia contends that Mr. Gianatasio "repeatedly told the EEOC and IDHR that it terminated Garcia's employment because (1) he did not accept constructive criticism from supervisors and (2) he was the least skilled foreman." Id.

Mr. Garcia claims that, from at least the early 1990s through December 2008, Bill Anderson frequently called Mr. Garcia and other workers "wetbacks, " "beaners, " "stupid Mexicans, " "motherfuckers, " "pigs, " and "animals, " told workers that they had no brains, threatened to report workers to immigration authorities, said that he was a born racist, and made other racially offensive comments. (Pl. Add'l. St., ¶1). Moreover, Mr. Garcia argues that Mr. Anderson used this racially offensive language at least two times per week during the time that Mr. Garcia worked for Complete, and did not make these statements to non-Mexican foreman. Id.

Complete disputes these facts, arguing that Mr. Garcia "offered numerous affidavits purporting to corroborate his extraordinary charges, but upon deposition of the affiants, the statements in the affidavits were found to be largely inconsistent. ...

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