United States District Court, N.D. Illinois, Eastern Division
JOHN R. PANICO, Plaintiff,
THE UNIVERSITY OF CHICAGO AND THE UNIVERSITY OF CHICAGO MEDICAL CENTER, Defendants.
MEMORANDUM OPINION AND ORDER
JOHN A. NORDBERG, Senior District Judge.
Before the Court is defendants' 12(b)(6) motion to dismiss. They argue that plaintiff's Title VII retaliation claim (the only claim asserted) is fatally defective because plaintiff could not have reasonably believed that two arguably racist comments made a month apart by two different women created a racially hostile work environment at the University of Chicago. We agree.
The following facts are taken from the amended complaint and exhibits and from plaintiff's response brief, which provides a few additional details. John R. Panico is a Caucasian male living in Indiana. In January 2010, he was hired by the University of Chicago as its Director of Labor Relations. Panico is an attorney with over 25 years experience with labor law.
This lawsuit arises out of two workplace comments. The first was made in September or October 2010. Panico was conducting a labor relations training program for University managers. During a question-and-answer session, Rosie Muldrew (African-American) asked Panico "if he was going to do the Guido' thing." Panico found the remark highly offensive and an ethnic slur against Italian-Americans like him. Panico immediately complained to Tamika Lynch, the Director of Employee Relations and an African-American. Several weeks later, Lynch told Panico that Muldrew did not know the term was derogatory. Panico did not believe this explanation, telling Lynch that Muldrew knew how to use the word in a sentence.
The second comment was made approximately a month later, in November. Panico was in a one-on-one meeting with his immediate supervisor, Gwynne Dilday (African-American). When talking about a second home she owned in Charleston, South Carolina, Dilday made a passing reference to "crackers" when referring to Caucasians living in that area. This comment upset Panico. He again complained to Lynch who this time arranged for Panico to meet with Ingrid Gould (Caucasian), the Associate Provost.
Gould met with Panico and then conducted an investigation. In January 2011, she sent Panico a three-page letter summarizing the results of her investigation. The gist of the letter is that Gould did not believe the comments were intended to be derogatory or constituted discrimination. Gould, however, thanked Panico for having the courage to share his concerns. Nothing was said in this letter, as far as we can tell, suggesting Panico was at fault or should leave his job.
One week later, Panico resigned. The amended complaint creates the impression that Panico resigned because he was upset about the two comments or perhaps by Gould's letter. The complaint at one point refers to plaintiff's "wrongful/constructive termination, " suggesting he was forced out of his job. Panico apparently did not file any discrimination charges with the EEOC at this time.
Six months later (which would be around the summer of 2011), Panico learned that the University has not found a replacement for his job. Apparently having a change of heart about being willing to work at the University, Panico emailed Nim Chinnah, a vice president in some capacity, and expressed interesting in returning to the University to handle labor relations or perhaps to work for the University of Chicago Medical Center in a similar capacity. Chinnah emailed Panico rejecting his offer. Panico did not at this time, insofar as the record reveals, file any EEOC charge or make any formal or informal complaint that he believed the failure to re-hire him was in retaliation for his earlier complaints about the two workplace comments.
Approximately 10 months later, Panico decided to try again. In May 2012, he applied for labor relations jobs at the University and at the Medical Center. He applied by going through the University's website. After waiting several months, Panico emailed Dana Bradley, the associate vice president of human resources, and asked about his application. On August 22, 2012, Bradley told Panico he would not be considered for a position.
Several days later, Panico filed two EEOC charges, one against the University and one against the Medical Center. In these charges, Panico asserted that his resignation was "due to" the hostile environment created from the two comments. After receiving right-to-sue letters from the EEOC, Panico filed his complaint, which he subsequently amended. It includes a single count for retaliation. Defendants (who we will refer to as the "University") moved to dismiss this count.
Before turning to the legal arguments, we note one additional factual matter. In the University's opening brief, it indicated in a footnote that Panico filed a similar employment discrimination lawsuit, around the same time as this one, in federal district court in Miami. See John R. Panico, et al. v. Jackson Memorial Hosp., et al., Case No. 13-20594 (U.S. Dist. Ct., Southern District of Florida, Miami Div.). Defendants attach a copy of the amended complaint, which indicates that Panico was hired by Jackson Memorial Hospital ("Jackson") as its Director of Employee and Labor Relations on February 7, 2011 - in other words, a few weeks after receiving the Gould letter. Panico alleged in the Miami complaint that he applied for the job in the fall of 2010 and had his first interview in November 2010, which was roughly around the time (and maybe even before) the two comments at issue here were made and was certainly before Panico received the Gould letter. Panico alleges that Jackson terminated his job in November 2011 because he had reported malfeasance by hospital works and by union representatives. In July 2012, Panico decided to re-apply for the same job at Jackson and was turned down. Panico alleged that the decision not to re-hire him was in retaliation for his making the comments about malfeasance. In short, the Miami allegations are similar to those here. In both cases, Panico worked a little less than a year; in both cases he claimed to have been pushed out after complaining about wrongdoing; in both cases, he waited for at least a half a year and then reapplied for the same job; and in both, he alleged the failure to re-hire was retaliatory.
Title VII "forbids employers from retaliating against employees by taking adverse employment actions for complaining about prohibited discrimination." Chaib v. State of Indiana, ___ F.3d ___, 2014 WL 685274, * 9 (7th Cir. Feb. 24, 2014). A plaintiff asserting a retaliation claim must, among other things, "show that he took some step in opposition to a form of discrimination that the statute prohibits." O'Leary v. Accretive Health, Inc., 657 F.3d 625, 631 (7th Cir. 2011). The latter phrase ("that the statute prohibits") is important as it requires the plaintiff making a complaint to his employer to "believe not only that harassment is occurring, but that harassment prohibited by Title VII is occurring." Lalowski v. Corinthian Schools, Inc., 2012 WL 245203, *3 (N.D. Ill. Jan. 26, 2012) (emphasis in original). But the Seventh Circuit has repeatedly stated that the plaintiff "need not show that the practice he opposed was in fact a violation of the statute; he may be mistaken in that regard and still claim the protection of the statute." O'Leary, 657 F.3d at 631. The plaintiff, however, must have a "good-faith and reasonable belief" that the conduct he is opposing is prohibited. Id. Thus, if a plaintiff does not honestly believe the practice is illegal, or if a plaintiff's belief is "objectively ...