United States District Court, N.D. Illinois, Eastern Division
YOUNG B. KIM, Magistrate Judge.
Tiffany Fabiyi sued her former employer, the McDonald's Corporation ("the company"), alleging that the company unlawfully discriminated against her on the basis of race, sex, marital status, and disability. She alleges violations of 42 U.S.C. § 1981 ("Section 1981"), Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1-101, et seq. The company now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. The motion is granted for the following reasons:
A. Local Rule 56.1
Local Rule ("L.R.") 56.1(a)(3) requires the party moving for summary judgment to provide "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." L.R. 56.1(a)(3). L.R. 56.1(b) requires the opposing party to file a response including "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, " and "a statement... of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B), (C).
Local Rule 56.1 "is designed, in part, to aid the district court, which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information, in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (internal quotation omitted). It serves to organize the evidence, identify undisputed facts, and demonstrate "precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Though this court must "liberally construe the pleadings of individuals who proceed pro se, " it is not "obliged... to scour the record looking for factual disputes." Greer v. Bd. of Educ. of City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001) (internal quotations and citations omitted).
Shortly after filing its L.R. 56.1(a)(3) Statement of Material Facts,  the company filed a notice to "Pro Se Litigant Opposing a Motion for Summary Judgment" to explain to Fabiyi the requirements of L.R. 56.1. (R. 43, 57.) The Notice informed Fabiyi that if she wished to dispute any of the facts submitted by the company or to submit her own facts, she must refer to documents and declarations to substantiate her factual allegations. (R. 57.) The Notice also cautioned Fabiyi that this court would deem the company's facts to be admitted if she failed to controvert them in the method delineated by the local rules. Id .; see also Keeton v. Morningstar, 667 F.3d 877, 880 (7th Cir. 2012) ("[W]hen a party fails to comply with the local rule requiring a response to a statement of undisputed material facts, the court may rely on the opposing party's statement to the extent that it is supported by citations to relevant evidence in the record.").
Fabiyi appears to have attempted to heed the company's warnings-she submitted a L.R. 56.1(b)(3)(B) response and L.R. 56.1(b)(3)(C) statement of additional facts. (See R. 70.) Unfortunately for Fabiyi, nearly all of her attempts to rebut the company's factual assertions consist of baseless, unsubstantiated denials that are woefully deficient. (R. 70, Pl.'s Fact Resp. ¶¶ 4-24, 26-31, 33, 36, 45-47, 52-53, 55-60, 62, 67, 68, 70-71, 79, 80.) "[M]ere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material." Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). She rejects some facts due to "insufficient knowledge" without challenging the authenticity or relevancy of the company's supporting evidence. (R. 70, Pl.'s Fact Resp. ¶¶ 32, 53.) Other denials are unclear, (id. ¶¶ 33, 37, 39, 40-42, 48-50, 61, 64, 72-76), or they merely claim that evidence would support her claim had it been gathered, (id. ¶¶ 43-44, 63, 65, 66, 78). These responses do not comply with L.R. 56.1's requirement that disagreements be supported by "references to the affidavits, parts of the record, and other supporting materials relied upon." See L.R. 56.1(b)(3)(B); see also Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (upholding district court's rejection of a L.R. 56.1 statement of facts because "it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture").
Fabiyi's Statement of Additional Facts is similarly rife with violations of Local Rule 56.1(b)(3)(C). This court disregards the assertions that are legal in nature. (See R. 70, Pl.'s Facts ¶ 32.) Additionally, this court disregards the assertions that are vague and unclear, (see Id . ¶¶ 10, 15, 19, 39); submitted with no supporting evidence whatsoever, (see id. ¶¶ 22, 25); submitted with evidence, or citing to the company's evidence, that contradicts the assertion Fabiyi sought to support, (see id. ¶¶ 2, 4, 5, 13, 14); supported only by citations to allegations that Fabiyi made to the company's investigators, her complaint, her notes, or during her deposition, (see id. ¶¶ 6, 18, 34); and submitted with evidence that lacks foundation, or is irrelevant or incomplete, (see id. ¶¶ 3, 7-9, 11, 12, 15-17, 20, 21, 23, 24, 26, 27, 29-38, 40). See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005) ("A district court does not abuse its discretion when, in imposing a penalty for a litigant's non-compliance with Local Rule 56.1, the court chooses to ignore and not consider the additional facts that a litigant has proposed.").
Similarly, to the extent that the company advanced factual or legal arguments in its statement of facts, or failed to provide sufficient evidence to establish its proposed statements of fact, this court disregarded them. ( See R. 43, Def.'s Facts ¶¶ 34, 43, 56, 63, 64, 72, 77.) Even as this court adopts the majority of the company's statement of facts, it views those facts in the light most favorable to Fabiyi. See Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 937 (7th Cir. 2003).
Fabiyi is an African American woman. (R. 43, Def.'s Facts ¶ 1.) She began working for the company in March 1999 at one of its restaurants located in Oak Brook, Illinois. (Id. ¶ 2; see also R. 74, Fabiyi Dep. at 63.) She transferred to the Naper Boulevard restaurant in September 2008 from the company's Spring Road Restaurant. (R.43, Def.'s Facts ¶ 4; see also id., Ex. B ¶ 3.) Debbie Piasecki, the general manager of the Naper Boulevard restaurant, approved Fabiyi's transfer. (R. 43, Def.'s Facts ¶ 4.) Fabiyi's job title was "Crew." (Id. ¶ 3; see also R. 74, Fabiyi Dep. at 78.) Crew members are trained on multiple work stations and are responsible for making fries, keeping the work area clean, collecting dirty trays from the lobby, conducting sweeps and mops, and working the cash register. (R. 43, Def.'s Facts ¶ 5.) The company does not have a seniority system and Crew members are assigned to work different stations as needed. (Id. ¶ 9.)
Crew trainers teach, coach, and train Crew employees. (Id. ¶ 13.) Crew members are eligible for a promotion to the Crew trainer position if they meet the minimum qualifications for promotion specified in the company's "Readiness for Advancement Checklist." (Id. ¶ 14.) Two of the mandatory qualifications for advancement are being available to work as needed, including on weekends and evenings, and meeting performance standards. (Id.) In 2008, likely while Fabiyi was employed at the Spring Road restaurant, supervisor Ruth Smith gave Crew trainer books to Fabiyi and many other Crew members. (Id. ¶ 15; see also R. 70, Pl.'s Facts ¶ 3; R. 74, Fabiyi Dep. at 140-41.) Smith provided the Crew trainer books to her employees regardless of whether they met the requirements for promotion. (R. 43, Def.'s Facts ¶ 15; see also R. 70, Pl.'s Facts ¶ 3.) Smith trained male, female, African American and non-African American Crew members for the Crew trainer position, but not Fabiyi. (R. 43, Def.'s Facts at ¶¶ 16-17.) Fabiyi lodged a complaint with the company about her denial of training. (Id. ¶ 20.) Piasecki believed that Fabiyi was ineligible for the training because she was not available to work weekends and evenings. (Id. ¶ 17.) Smith believed that Fabiyi was ineligible for the training because of her lack of availability and her work performance. (R. 43, Def.'s Facts, Ex. D ¶ 10.) Fabiyi does not dispute that she was unavailable to work weekends and evenings. (See R. 70, Pl.'s Fact Resp. ¶ 17.)
On March 18, 2009, Fabiyi registered a complaint with the company's business integrity phone line. (R. 70, Pl.'s Facts, Ex. N.) She claimed that a manager had corrected her in front of customers, and she also renewed her complaint that she had been unfairly denied a promotion to the Crew trainer position. (Id.) A week later, on March 25, Fabiyi received an overall performance rating of "Good" on her "Team Member Performance Update." (See R. 43, Def.'s Facts, Ex. C, Group Ex. A.) But Fabiyi's relationship with management soured as evidenced by the 11 write-ups in Fabiyi's file and her at least 5 additional calls to the company's business integrity phone line complaining of perceived discrimination and retaliation during the following two years. (R. 43, Def.'s Facts ¶¶ 18, 20, 25, 30, 33, 37, 40, 44; R. 70, see also Ex. B ¶¶ 15-18, Group Ex. B; see also R. 70, Pl.'s Facts, Exs. B, N.) Between March and November 2009 alone, Fabiyi accumulated five write-ups for the following violations: being insubordinate, leaving the job during her shift, refusing to work the fry station, failing to report for work without timely notice, and shorting her cash register. (R. 43, Def.'s Facts ¶ 18, & Ex. B, Group Ex. B.) Fabiyi does not deny that she received write-ups, nor does she specifically deny engaging in the actions that are documented in the write-ups. (R. 70, Pl.'s Fact Resp. ¶ 18.) But she claims that these write-ups, like the many others that followed, were the products of discrimination or retaliation for her complaints. (Id.)
In October 2009, Sarah Dudan, a Human Resources Manager ("HR Manager") with the company, investigated Fabiyi's complaint that she had been wrongfully denied training because of discrimination or retaliation in October 2009. (R. 43, Def.'s Facts ¶ 20.) Dudan found that Fabiyi was not eligible for the training because of her poor work performance. (Id.) Fabiyi called the business integrity phone line again on January 26, 2010, to complain that Piasecki had yelled at her when she asked for her performance review. (R. 43, Def.'s Facts ¶ 25.) At her deposition, Fabiyi explained that Piasecki yelled, "I'm going to give it to you, " after Fabiyi demanded her performance review. (R. 74, Fabiyi Dep. at 122.) Fabiyi characterized this yelling as "humiliating" because it was in front of customers. (Id.) After the alleged yelling, Piasecki provided the evaluation which noted that Fabiyi met the company's standards in five performance areas, but failed to meet the standards in thirteen areas, earning her an overall rating of "Needs Improvement." (R. 43, Def.'s Facts ¶ 21, Ex. C ¶ 8, Group Ex. B.) Pursuant to the company's wage guidelines, which provide that employees with "Needs Improvement" ratings are not entitled to wage increases, Fabiyi did not receive a merit wage increase. (R. 43, Def.'s Facts ¶¶ 22-23.) She testified that "everyone pretty much got their raise except me, " including male and female African Americans. (Id. ¶ 24.)
Fabiyi called the business integrity phone line again the next day, January 27, 2010, to claim that she was denied a fair wage because of her sex and denied a promotion because of her race. (R. 70, Pl.'s Facts, Ex N.) Two days later, restaurant managers Antonio Gass and Piasecki reprimanded Fabiyi for a register shortage and warned her that the next shortage would result in a suspension. (R. 43, Def.'s Facts ¶ 18, Ex. B ¶ 5, Group Ex. B.) Fabiyi does not deny that she was reprimanded or that she had a register shortage, but views the reprimand as a form of retaliation for her complaints of discrimination. (R. 70, Pl.'s Fact Resp. ¶ 18.) In February 2010 Dudan investigated Fabiyi's claims that Piasecki had yelled at her and denied her a fair wage. (Id. ¶ 26.) Dudan declares that she found no evidence of discrimination, harassment, or retaliation, and that she communicated these findings to Fabiyi. (Id. ¶ 29.) Fabiyi denies that the investigation occurred but does not deny Dudan's statement that she communicated her conclusion to Fabiyi. (R. 70, Pl.'s Fact Resp. ¶ 29.)
Fabiyi failed to show up for work on April 29, 2010. (R. 43, Def.'s Facts ¶ 30.) The company claims that she did not call in absent, but Fabiyi claims that she gave two-hour notice before missing her shift. (Contrast id. and R. 70, Pl.'s Fact Resp. ¶ 30.) Piasecki issued Fabiyi a one-week suspension on May 3, 2010, for her unexcused absences on October 26, 2009, April 19, 2010,  and April 29, 2010. (See id. ¶¶ 30-31.) Fabiyi called the business integrity line on May 6, 2010, and complained that the suspension was motivated by discrimination. (Id. ¶ 33.) She also filed a complaint with the Illinois Department of Human Rights ("IDHR") on that date to allege race and sex discrimination and retaliation. (R. 70, Pl.'s Facts, Ex. K.)
On May 26, 2010, Fabiyi had another difficult day at the Naper Boulevard restaurant. (R. 43, Def.'s Facts ¶¶ 34-37.) She called the business integrity line to complain that Julio Alvarez, the swing manager, walked up behind her and rubbed her behind. (Id. ¶ 37; R. 70, Pl.'s Facts, Ex. B.) When she complained about the inappropriate touching, she asked that Kimberly Smith, a member of the company's HR department, investigate the matter. (R. 70, Pl.'s Facts, Ex. B.) Fabiyi testified that she "brought it to [Alvarez's] attention that he had just rubbed my butt." (R. 74, Fabiyi Dep. at 160.) As a swing manager Alvarez did not have the authority to fire Fabiyi. (R. 43, Def.'s Facts ¶ 36.) Sometime that day after the alleged touching by Alvarez, Fabiyi and another female employee argued at the front counter and did not stop arguing despite a warning from Piasecki. (Id. ¶ 35.) Piasecki and Gass reprimanded Fabiyi and sent her home. (Id.) Fabiyi complained that this discipline was because of her complaint to the business integrity phone line about the alleged touching by Alvarez. (R. 70, Pl.'s Fact Resp. ¶ 35.)
In June 2010, Kimberly Smith investigated Fabiyi's complaints of the alleged inappropriate touching, the May 2010 suspension, and her previous complaints about the denial of training for the Crew trainer position and denial of a raise. (R. 43, Def.'s Facts ¶¶ 27, 33, 37.) Fabiyi suggests that this investigation was incomplete because Kimberly Smith did not question supervisor Ruth Smith regarding her knowledge or participation in the alleged discrimination and/or retaliation. (R. 70, Pl.'s Facts ¶ 27.) Kimberly Smith concluded that none of the company's policies had been violated and communicated her findings to Fabiyi. (R. 43, Def.'s Facts ¶¶ 27, 33, 37.) Fabiyi denies hearing about the investigation. (R. 70, Pl.'s Fact Resp. ¶¶ 33, 37.)
Fabiyi received another performance evaluation on July 1, 2010, and again her performance was rated as "Needs Improvement." (R. 43, Def.'s Facts ¶ 47.) Later that month, when manager Gass asked Fabiyi to clean the lot and lobby, she refused, arguing that the job was not appropriate for her because of her seniority. (Id. ¶ 40.) At her deposition, Fabiyi reiterated this belief. (R. 74, Fabiyi Dep. at 173.) But she also testified that cleaning the lot and lobby is a Crew member's duty, and that both "black and nonblack" Crew members were asked to clean the lot and lobby. (Id. at 174, 178.) Fabiyi admits that she refused to clean the lot and lobby in July 2010 but claims that "SENIORITY was a motived [sic] my discrimination." (R. 70, Pl.'s Fact Resp. ¶ 40.) The court takes this to mean that Fabiyi alleges that the company does not have a seniority system because of a discriminatory motive, though she did not submit any evidence to support this theory. (See also R. 70, Pl.'s Facts ¶ 18.) She also suggests that Gass disciplined her to retaliate against her for her complaints to the business integrity line. (R. 70, Pl.'s Fact Resp. ¶ 43.) However, at her deposition, she admitted that she was not sure whether Gass was even aware of her complaints to the IDHR or the business integrity line. (R. 74, Fabiyi Dep. at 176; R. 75, Fabiyi Dep. at 200-01, 223-25.)
On October 6, 2010, Fabiyi again refused to clean the lot and lobby. (R. 43, Def.'s Facts ¶ 44.) Gass asked Fabiyi if a medical condition prohibited her from performing the task and Fabiyi said no. (Id.) Fabiyi told Gass that this task was for the maintenance man. ( Id., Ex. B, Group Ex. B.) On the employee action form that documented the incident, Fabiyi wrote that "this is harassment coming from Manage[ment]." (Id.) Fabiyi admits that she refused to clean the lot and lobby but reasserts that "SENIORITY was a motived [sic] my discrimination." (R. 70, Pl.'s Fact Resp. ¶ 44.) A few months later, on December 30, 2010, Fabiyi called the business integrity line to renew her complaint about Alvarez touching her and to complain of general discrimination. (R. 43, Def.'s Facts, Ex. B ¶ 17.)
The Naper Boulevard restaurant used a computer system to assign hours to Crew members. (Id. ¶ 10.) The system considered employee availability and anticipated sales. (Id.) A poster in the Crew room in the Naper Boulevard restaurant communicated the company's policy of adjusting employee hours based on weather and performance, such that better weather and better performance would result in more work hours. (Id. ¶ 46.) Fabiyi denies that the poster indicated that performance was a factor. (R. 70, Pl.'s Fact Resp. ¶ 46.) In January 2011 Fabiyi's scheduled hours were reduced. (Id. ¶ 48.) When Fabiyi asked Gass why her hours were cut back, he told her that it was because she failed to meet performance expectations. (Id.) Fabiyi testified that she was not aware of any non-African American Crew members with "Needs Improvement" ratings with more scheduled hours than her. (R. 74, Fabiyi Dep. at 200.)
Kimberly Smith conducted another investigation into Fabiyi's claims of discrimination in February 2011. (R. 43, Def.'s Facts ¶ 45.) Smith was of the opinion that no discrimination or retaliation against Fabiyi had occurred, and she communicated her finding to Fabiyi. (Id.) Fabiyi denies that this investigation occurred but provided no evidence to the contrary. (R. 70, Pl.'s Fact Resp. ¶ 45.)
Fabiyi testified to a second touching by Alvarez sometime before April 30, 2011, though she did not confront him about the touching nor did she report it to the company at that time. (R. 43, Def.'s Facts ¶¶ 38-39.) She claimed that he touched her behind with his groin area. (Id.) She testified that she did not report this second incident because she believed that the company would not take any action. (R. 74, Fabiyi Dep. at 165-66.) On April 26, 2011, she complained to the IDHR that Alvarez engaged in at least two incidents of sexual misconduct involving his touching of her behind with his hands or body between May 2010 and April 25, 2011. (R. 70, Pl.'s Facts, Ex. O.)
On April 28, 2011, Fabiyi received her bi-annual performance evaluation. (R. 43, Def.'s Facts ¶ 52.) Again, her "Team Member Performance Update" showed a rating of "Needs Improvement." (Id.) Pursuant to the company's wage guidelines, which rendered employees with "Needs Improvement" ratings ineligible for wage increases, Fabiyi did not qualify for a raise. (Id. ¶¶ 56-57.) Fabiyi testified that some "nonblacks" who worked at the grill station received raises. (R. 75, Fabiyi Dep. at 209-10.) According to Fabiyi's own testimony, those employees were lauded by Piasecki for doing a great job. (Id.) The following month, in May 2011, Fabiyi's hours were reduced because of ...