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Swidnicki v. Brunswick Corp.

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

March 6, 2014

KATHERINE SWIDNICKI, Plaintiff,
v.
BRUNSWICK CORPORATION, Defendant

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For Katherine A Swidnicki, Plaintiff: Steven C. Kyriazes, Steven C. Kyriazes, PC, Arlington Heights, IL.

For Brunswick Corporation, Defendant: David C. Vogel, LEAD ATTORNEY, Lathrop & Gage Llp, Kansas City, MO; Bryan K. Clark, Lathrop & Gage LLP, Chicago, IL.

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MEMORANDUM OPINION AND ORDER

Hon. Harry D. Leinenweber, United States District Judge.

Plaintiff Katherine Swidnicki (" Swidnicki" ) brings this action against her former employer, Brunswick Corporation (" Brunswick" ), alleging that she was discriminated against on the basis of her national origin and gender, sexually harassed, and retaliated against for reporting to a human resource manager that she had been instructed by a supervisor not to record overtime hours she had worked. Swidnicki seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (" Title VII" ), 42 U.S.C. § 1981 (" Section 1981" ), the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (" FLSA" ), and the Illinois Human Rights Act, 775 Ill.Comp.Stat. 5 (" IHRA" ). Brunswick has moved for summary judgment. (ECF No. 15). For the reasons stated herein, the Motion is granted in part and denied in part.

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I. BACKGROUND

The background facts are derived principally from the parties' Local Rule 56.1 submissions and are undisputed except where noted.

Swidnicki is a native of Poland and has resided in the United States since emigrating with her family in the 1980s. From 2008 until 2011, she worked as an Installation Analyst at Life Fitness, a group within Brunswick that sells exercise equipment. Her duties consisted primarily of arranging for third-party vendors to deliver and install exercise equipment at customers' locations.

Between 2008 and 2010, Swidnicki worked on a team supervised by Brent Nichols (" Nichols" ). In 2009, Swidnicki received an evaluation from Nichols rating her overall performance as " satisfactory," the middle of five possible ratings. Nichols' evaluation offered positive comments and identified areas where he believed Swidnicki's performance could be improved. For example, Nichols stated that Swidnicki needed to work on her efficiency and response time to issues with third-party logistics. He further noted that she worked late almost every day even though her workload was " on the lower end," and that she would benefit from a " greater sense of urgency" and faster turnaround on her review of certain audits.

In March 2010, Swidnicki was transferred to a team with a different supervisor named Dan Terrien (" Terrien" ). In one of their first meetings together, Terrien asked Swidnicki about her nationality. He expressed surprise that she was working in an area where " not a lot of Polish people" worked and stated that " a lot of Polish people are in cleaning services." Terrien later mentioned to Swidnicki that some vendors might have difficulty understanding her due to her accent. On one occasion, he asked Swidnicki if she needed a dictionary to " look up" what he was saying. On another, he stated that her " European accent" was " getting in the way" and told her that she needed to practice her language skills. Terrien continued to make similar comments to Swidnicki about once per month during the ten-month period he supervised her.

During a meeting in the fall of 2010, Terrien changed Swidnicki's first name on a dry-erase board from " Kathy" to " Katyrzyna," a misspelling of her birth name, " Katarzyna." This disturbed Swidnicki because she always had used " Kathy" around the workplace and she viewed Terrien's changing of her name as an attempt to upset or provoke her.

Swidnicki disagreed with Terrien's management style and felt that he was not providing her with enough assistance and that he gave inconsistent direction. She was bothered by the fact that he sometimes directed her to enter incorrect information into the company's tracking system and later would blame her for any problems that arose. In addition, she felt slighted that she had not been permitted to work using the company's " new model" for tracking equipment deliveries. Despite her requests to be transferred over to the new model, Terrien told her that he preferred her working in the " classic model" because she knew " all of the ins and outs" of that system.

On a more general level, Swidnicki felt intimidated by Terrien because he often raised his voice and used profanity around the office. He was less friendly with female employees and, on one occasion, referred to a female technician based on the west coast as being the equivalent of only " half a man."

In July 2010, Swidnicki received a mid-year evaluation in which Terrien stated that she had " done a great job reducing

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storage" at vendors' facilities, but noted that she struggled with meeting deadlines and that she needed to do a better job of cleaning up third-party inventory. Terrien did not give Swidnicki any specific rating, but Swidnicki perceived the review as being negative and disagreed with Terrien's criticism.

Although Swidnicki often felt that she needed to work overtime in order to complete her work, Terrien told her that she should not be putting in additional hours and expressed concern that she was making " extra work" for herself. When she did not stay and work overtime, however, Terrien would criticize her for failing to complete her work. Terrien also told Swidnicki on several occasions not to report the overtime hours she worked.

In the fall of 2010, Swidnicki complained to Carol Stame (" Stame" ), the Director of Human Resources, about Terrien's instructions to her regarding overtime. Stame told Swidnicki that she should record her overtime hours as permitted by law and indicated that she would take up the matter with Terrien. However, Swidnicki did not think Stame acted on her complaint and neither Terrien nor Stame recall ever discussing the issue.

Sometime later, Terrien altered the team's seating arrangement, moving Swidnicki next to a co-worker named Luis Davila (" Davila" ). Davila routinely engaged in inappropriate behavior, often making off-color sexual remarks to Swidnicki. A sampling of his conduct includes: performing a Michael Jackson imitation during which he grabbed his crotch; making repeated references to his " schmeckel," the Yiddish term for a small penis (he would say, for example, " My schmeckel is so much bigger than these carrots," " My schmeckel is itching," or " Kathy, do you want to taste my schmeckel?" ); stating that there were " ants in [his] pants" or that there was a " party in [his] pants" ; stating to Swidnicki that he had " wet [his] crotch" ; asking Swidnicki whether she wanted to feel his " balls" ; making suggestive remarks about having engaged in homosexual relations with co-workers; stating to Swidnicki that he had a long " shaft" and that he enjoyed eating " hairburgers," a vulgar reference to female genitalia; commenting that a hair he found may have been a pubic hair and asking Swidnicki if it was hers; suggesting to Swidnicki that she " give love" to a co-worker; asking Swidnicki if she liked to " swallow" ; whispering comments to Swidnicki such as " I love you, Kathy. Don't you love me back? Say it. Don't you love me back?" ; and pulling out his waistband to look at his genitals while in front of Swidnicki and commenting " my crotch is sweaty."

Over time, Davila's conduct grew incessant to the point where he was making sexually explicit comments between 20 and 30 times per day. Swidnicki and other employees often had to stop making work-related telephone calls because of Davila's loud remarks and there were times when his comments were so crude that the whole department, even those who usually laughed at his remarks, would go silent.

Despite Swidnicki's requests to stop, Davila persisted with his behavior. When Swidnicki complained to Terrien about Davila's conduct, Terrien stated that Davila simply was " letting off steam" because he had been under pressure. Swidnicki later brought her concerns to Terrien's supervisor, Mike Edwards (" Edwards" ), but was told that she needed to take up the issue with Terrien.

In December 2010, Terrien and Stame issued Swidnicki a Performance Deficiency Notice (" PDN" ), identifying a number of concerns about her work. These included problems following the proper ...


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