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Steinbarth v. Whole Foods Mkt.

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

November 5, 2014

RALPH E. STEINBARTH, Plaintiff,
v.
WHOLE FOODS MARKET, Defendant

Page 917

[Copyrighted Material Omitted]

Page 918

For Ralph E. Steinbarth, Plaintiff: Denise M. Mercherson, Law Office of Denise M. Mercherson, Chicago, IL.

For Whole Foods Market, Defendant: Joseph Daniel Ryan, LEAD ATTORNEY, Scott Bryan Dolezal, Law Offices of Joseph D. Ryan, P.C., Highland Park, IL.

Page 919

MEMORANDUM OPINION AND ORDER

Milton I. Shadur, Senior United States District Judge.

Ralph Steinbarth (" Steinbarth" ) has brought a complaint charging his former employer, Whole Foods Market (" Whole Foods" ), with two counts of discrimination: a failure to promote him on the basis of race in violation of 42 U.S.C. § 1981[1] and the creation of a hostile work environment due to his race and national origin in violation of Title VII of the Civil Rights Act of 1964 as amended (" Title VII," Sections 2000e to 2000e-17). Steinbarth also advances a third count charging retaliation in violation of Section 1981.[2] Whole Foods has moved for summary judgment under Fed.R.Civ.P. (" Rule" ) 56 on all three

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counts, and its motion has been fully briefed. For the reasons stated here, its motion is granted.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).[3] For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But a nonmovant must produce more than " a mere scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and " must come forward with specific facts demonstrating that there is a genuine issue for trial" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). What follows is a summary of the facts,[4] viewed in the light most favorable to nonmovant Steinbarth.

Factual Background

From mid-2008 until his termination in early 2010 Steinbarth was a team member in the meat department at Whole Foods' Lincoln Park store (W.F. St. ¶ 2). Steinbarth identifies himself as German, Jewish, Polish, Cuban and Puerto Rican with Spanish roots (S. St. ¶ 1; W.F. St. ¶ 1). Steinbarth asserts that his team leader Augustin Murillo (" Murillo" ) discriminated against him because of both his German Jewish background and his Puerto Rican/Spanish background (Complaint ¶ ¶ 10-11, 18, 21). While Steinbarth's Hispanic " roots" (Steinbarth Dep.17:20) trace back to Europe and specifically to Spain (W.F. St. ¶ 1), Murillo is of Mexican national origin (id. ¶ 5).

Murillo transferred to Whole Foods Lincoln Park in early 2009, after Steinbarth was already working there (W.F. St. ¶ 4). Shortly thereafter (Steinbarth Dep. 51:24-52:3) Whole Foods appointed Murillo the team leader for the meat department (W.F. Resp. ¶ 1). In that capacity his responsibilities included scheduling team members, ordering inventory, reviewing team members and training them (Murillo Dep. 10:16-10:19).

In late May 2009 Whole Foods Lincoln Park moved its store to another location in the community (Walsh Aff. ¶ 10). One day while setting up for that move in early February, Steinbarth and Murillo had a series of conversations in which Steinbarth's background arose several times (S. Resp. ¶ ¶ 4-11). More specifically, Murillo overheard Steinbarth speaking Spanish and commented that he had thought Steinbarth was " guero," which means " white" or " whitey" in Spanish (W.F. St. ¶ 5). Murillo asked Steinbarth about his heritage, and

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Steinbarth told Murillo that he was German, Jewish, Polish and Spanish (id. ¶ 6). Steinbarth also asserts that at that point he also told Murillo that he had Puerto Rican roots (W.F. Resp. ¶ 1).

When Murillo learned that Steinbarth was Jewish, Steinbarth explained that although he was sure he had " Jewish blood," he did not practice Judaism (S. Resp. ¶ 7). Murillo repeated " Judio," which means Jewish in Spanish (id.), and said " you must be a Jew, you have Jewish blood" (W.F. Resp. ¶ 1). According to Steinbarth Murillo had a " look of disgust on his face," " a very sour look" " as if he had bit into a lemon" (id.). Murillo also allegedly stated that the Spanish raped the Mayans (S. Resp. ¶ 7). That same day Steinbarth and Murillo also discussed Steinbarth's family company, La Preferida, with Steinbarth stating that if Murillo ate beans he most likely bought beans manufactured by that company (W.F. St. ¶ 8). Steinbarth says that Murillo initially refused to believe that was the case, but Steinbarth told Murillo to research the company online, and later that afternoon Murillo conceded that Steinbarth was correct (W.F. Resp. ¶ ¶ 6-7; Steinbarth Dep. 67:2).

Promotion to Meat Cutter Apprentice

In late January or early February of 2009 Steinbarth requested a " job dialogue" with Murillo (S. Resp. ¶ 13) -- effectively an employer review that is formally initiated by the employee (id. ¶ 12) but that is expected to occur about every six months (Steinbarth Dep. 36:19). Murillo had a backlog of job dialogues to complete (W.F. St. ¶ 14; Murillo Dep. 30:8-30:13), so that Steinbarth's first review was not completed until April (S. Resp. ¶ 13). During that job dialogue Steinbarth expressed his desire to become a meat cutter (S. St. ¶ 11), a more advanced role in the meat department that carries a pay raise (Gutierrez Dep. 17:4-17:5). To become a meat cutter inexperienced candidates such as Steinbarth first had to train formally as meat cutter apprentices (W.F. St. ¶ 20), a job that also carries a pay raise (S. Resp. ¶ 23). When Steinbarth voiced his desire to become a meat cutter, Murillo told him that he would have to wait for a position to open but that once another employee, Carlos, completed his meat cutter apprenticeship, Steinbarth could begin one (W.F. St. ¶ 20). In fact, according to Steinbarth, the two prior team leaders had told him the same thing (Steinbarth Dep. 85:3-85:5).

Despite his clearly voiced interest, Steinbarth never became either a meat cutter apprentice or a meat cutter. Importantly, he admits that he never filed a formal paper application for the job, for he never saw any openings for inexperienced meat cutters (W.F. St. ¶ ¶ 21-22). At the end of 2009 Murillo promoted Israel Gutierrez (" Gutierrez" ), who is of Mexican national origin, to a meat cutter apprentice position. At that time Gutierrez had held the same position as Steinbarth at Whole Foods (W.F. Resp. ¶ 12). Gutierrez had previously worked with Murillo at Whole Foods' Willowbrook store, and on occasion the two would grab a drink after work (id.). After Murillo moved to the Lincoln Park location, Gutierrez transferred with Murillo's help (id.). Murillo had earlier told Gutierrez that there were no open positions, but he later told Gutierrez there was an opening for a meat cutter apprentice, and Gutierrez accepted the job and moved locations (id.). Before that transfer Gutierrez had some " informal" experience cutting meat, although " it was just for a customer" and " [s]o [he] didn't need . . . a special cut or something" (S. Resp. ¶ 24; Gutierrez Dep. 39:15-39:18). Upon the transfer and for several months thereafter Gutierrez worked as a regular member of the meat team, but according to Steinbarth he received

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informal training in meat cutting for which he was later promoted (W.F. Resp. ¶ 12).[5] Gutierrez became an official apprentice in December 2009.

Hostile Work Environment and Steinbarth's Complaints to Whole Foods

Steinbarth asserts that Murillo repeatedly " jab[bed]" him about his background (W.F. Resp. ¶ 20), assigned him unfavorable work schedules (W.F. St. ¶ 40) and spoke to him in a condescending manner (S. Resp. ¶ 62). Although Steinbarth does not enumerate specific " jabs" in his statement of facts or memorandum, it would appear that the " jabs" included asking what Steinbarth ate for dinner and if he ate sauerkraut (W.F. St. ¶ 54), using the Caribbean term " habichuelas" instead of " frijoles," which is more often used in Mexico (id. at ¶ ¶ 57-58), and ...


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