United States District Court, N.D. Illinois, Eastern Division
NICOLE A. CARDOSO, Plaintiff,
CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Defendant.
MEMORANDUM OPINION AND ORDER
JOAN B. GOTTSCHALL, District Judge.
Plaintiff Nicole Cardoso worked as an Assistant Manager at a Verizon Wireless store in Crystal Lake, Illinois, until her employment was terminated following an altercation at the store. At her deposition, Cardoso testified that she - among other things - threw a phone receiver at a subordinate, pushed him so that he fell over and then kicked him while he was lying on the ground, and threw a stapler at his groin in the presence of a customer. According to Verizon, it fired Cardoso based on her conduct and because she was untruthful during its investigation of the incident. Cardoso, on the other hand, contends that her termination was due to gender discrimination and retaliation for complaining about that discrimination. Verizon's motion for summary judgment pursuant to Fed.R.Civ.P. 56 is before the court. For the following reasons, the motion is granted.
A. Local Rule 56.1
Local Rule 56.1(a)(3) requires a party moving for summary judgment to submit "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law." Cracco v. Vitran Express, Inc., nonmoving party then must submit a "concise response" to each statement of fact, "including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B). The nonmoving party may also present a separate statement of additional facts "consisting of short numbered paragraphs, " with citations to the record, that require the denial of summary judgment. See L.R. 56.1(b)(3)(C); see also Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).
1. Cardoso's Responses to Verizon's Facts
Cardoso states that she denies certain facts in Verizon's Local Rule 56.1 statement. However, many of her so-called denials do not reflect any disagreement with Verizon's facts. For example, in ¶ 28 of its 56.1 statement, Verizon states that "[Ilka] Nunez [a Human Resources employee at Verizon] reviewed portions of the surveillance video from the Crystal Lake, Illinois retail store for the afternoon of July 4, 2012." In response, Cardoso states, "ADMITTED that Núñez viewed a portion of the surveillance video, but DENIED that Núñez reviewed the entire video." Dkt. 39, Pl.'s Resp. to Def.'s Facts, ¶ 28. Cardoso then adds that "[Nunez] did not see all of it and certainly not the parts which support plaintiff's contention that what the video shows is aggression on the part of [Retail Sales Representative Marcus] Paredero, and not friendly horseplay' as characterized by plaintiff." Id. Merely saying that a fact is disputed does not transform it into a disputed issue of fact sufficient to survive a motion for summary judgment. See Hurst v. Mauger, No. 11 C 8400, 2013 WL 1686842, at *2 (N.D. Ill. Apr. 16, 2013). The court will, therefore, disregard so-called denials of facts that are actually undisputed.
In addition, Cardoso appears to have characterized certain agreed facts as disputed to provide an opportunity to include legal arguments about the facts. She also includes legal arguments in her responses to Verizon's facts. For example, in ¶ 54 of Verizon's statement, Verizon states that Amr Wahba (the District Manager for the area including the Crystal Lake Verizon store) and David Heath (the Manager of Retail Sales at that store) were not involved in the decision to terminate Cardoso's employment. In response, Cardoso states:
ADMITTED that neither Wahba nor Heath contend that they played no role in the decision to terminate Cardoso, but DENIED that such contested fact question, as a matter of law, is sufficient to rebut an inference that they either knew about Cardoso's protected activity involving Wahba, which can be inferred that they did, or that they could have participated in, or instigated the decision to terminate plaintiff for discriminatory or retaliatory motives, or both. See, Sandra Scott v. Sunrise HealthCare Corp., 195 F.3rd 938, 941 (7th Cir. 1995), as Heath made the first complaint to HR about July 14, 2012, both he and Wahba were interviewed by Núñez before July 25, 2012 (when Cardoso was interviewed), Wahba prepared a MSOF [Manager Statement of Facts form], Def. Ex. 13; Wahba had a strange attitude towards Cardoso shortly after the interview of July 25, 2012 wherein she complained about Wahba's perceived gender discrimination; and, both Wahba and Heath were invited to attend the telephonic discharge on August 14, 2012. See CSMF ¶¶21, 22, 29, 30, 34 and defendant's statement of facts, ¶56.
Legal arguments in Rule 56.1 submissions are improper. See, e.g., Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008). The court will disregard all of the legal arguments in Cardoso's Rule 56.1 submissions. Similarly, to the extent that Cardoso's denials are unresponsive, evasive, or argumentative, Verizon's corresponding facts are deemed admitted. See Flores v. Giuliano, No. 12 C 162, 2014 WL 3360504, at *2 (N.D. Ill. July 9, 2014); Bennett v. Unitek Global Serv., LLC, No. 10 C 4968, 2013 WL 4804841, at *3 (N.D. Ill. Sept. 9, 2013).
Moreover, proper responses to the movant's proposed facts point to evidence refuting the movant's facts. It is improper to add additional unrelated facts. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008) (district court properly did not consider portions of the plaintiff's response to the defendant's facts as it "contained several extremely long, argumentative paragraphs, and in those paragraphs [the plaintiff] simultaneously denied the veracity of [the defendant's] proposed material facts and presented additional facts of his own"). The court has considered factual assertions in Cardoso's statement of additional facts, to the extent that they are supported by the record. The court will not, however, consider non-responsive facts in Cardoso's response to Verizon's Rule 56.1 submission.
2. Cardoso's Additional Facts
The court next considers Cardozo's statement of additional facts. The thirty-seven paragraphs are lengthy. Without the caption or signature block, Cardoso's additional facts are approximately twenty-four pages long, resulting in an average paragraph length of 2/3 of a double-spaced page. The paragraphs frequently contain completely unrelated facts as well as legal arguments. Moreover, many of Cardoso's proposed facts are supported by inaccurate citations to the record or general references to the record with no pinpoint citations. Cardoso also cites to both the videotaped deposition of Angela Daniels and the transcript of that deposition. See, e.g., Dkt. 40, Pl.'s Add'l Facts, at ¶ 16. In addition, she cites to documents that are not included in her exhibits, such as Verizon bates no. 883.
Local Rule 56.1 directs counsel to present facts in "short numbered paragraphs" to prevent lengthy stream-of-consciousness submissions that are difficult for opposing counsel and the court to assess. As noted above, legal arguments have no place in a statement of facts. And "[t]he requirement of specific citations helps the parties and the court focus on asserted disputed issues of fact, a required task in considering motions for summary judgment, but a task made impossible when facts are blurred together as they are here." Trela v. United Parcel Service, Inc., No. 08C6195, 2010 WL 569954, at *1 (N.D. Ill. Feb. 10, 2010) (striking portions of a statement of facts filed by Mr. Rossiello - who is also counsel for the plaintiff in this case - based on his failure to comply with Local Rule 56.1 and this court's standing order) (Gottschall, J.).
The court will also disregard citations to the videotaped version of O'Daniels' deposition as without the benefit of a pinpoint cite to the transcript, it cannot determine what portion of the deposition is at issue. Next, the court will disregard facts that are purportedly supported by citations to documents that Cardoso did not submit. See Pulliam v. City of Chicago, No. 08 C 7318, 2010 WL 3238837, at *5 (N.D. Ill. Aug. 12, 2010). The court also notes that it is not obligated "to scour the record in search of material factual disputes" or to correct inaccurate or missing pinpoint citations. See Roger Whitmore's Auto. Servs., Inc. v. Lake Cnty., Ill., 424 F.3d 659, 664 n.2 (7th Cir. 2005). To the extent that Cardoso's additional facts are insufficiently supported by the record, they will not be considered. Finally, as with Cardoso's responses to Verizon's facts, the court will not consider argumentative facts or legal conclusions masquerading as "facts."
Despite all of these problems, in the interests of resolving Verizon's summary judgment expeditiously and on the merits, the court declines to strike the vast majority of Cardoso's additional facts based on what the court must regretfully characterize as counsel's egregious failure to comply with Local Rule 56.1. Counsel is admonished that if he fails to comply with Local Rule 56.1 in the future, the court may exercise its prerogative to enforce that rule strictly. See Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) ("Because of the high volume of summary judgment motions and the benefits of clear presentation of relevant evidence and law, we have repeatedly held that district judges are entitled to insist on strict compliance with local rules designed to promote the clarity of summary judgment filings."). With these rulings in mind, the court turns to the facts.
The following facts are undisputed unless otherwise noted.
1. Cardoso's Employment With Verizon and Relevant Verizon Employees
Cardoso began working for Verizon's predecessor company in 1997 as a part-time Customer Service Representative at Verizon's facility in Elgin, Illinois. In May 2002, she became a Representative, Retail Customer Support. In 2008, she was promoted to the position of Assistant Manager of the Verizon store in Crystal Lake, Illinois. In this role, her direct supervisor was David Heath, the Manager of Retail Sales for that store. When Heath was not at the Crystal Lake retail location, Cardoso was the highest ranking manager there.
Cardoso's job duties as Assistant Manager included leading the team, assessing the performance of her sales associates, and ensuring customers are treated well. Cardoso was also responsible for managing the performance of subordinate employees, staffing, employee relations, implementation of merchandising plans, financial and sales reporting, customer retention, resolution of escalated customer complaints, and maintaining market and industry knowledge. During her deposition, Cardoso acknowledged that her position as Assistant Manager required her to provide an open and supportive environment for Verizon employees and to encourage employees to act ethically and professionally.
Robert St. Marie and Marcos Paredero worked under Heath and Cardoso as Retail Sales Representatives at Verizon's Crystal Lake store. As an Assistant Manager, Cardoso's commissions were based upon the overall performance of the Crystal Lake store. In contrast, the commissions of Retail Sales Representatives, such as St. Marie and Paredero, were based on their individual performance. As an Assistant Manager, Cardoso had a higher short-term bonus potential than Retail Sales Representatives. Moreover, because she was in a management position, Cardoso received management-specific training, including a "Civil Treatment for Managers" course and a Leader Training Program, that Verizon did not provide to Retail Sales Representatives.
In January 2012, Amr Wahba became Cardoso's District Manager as he was responsible for the area including the Crystal Lake Verizon store. Ilka Nunez is a "Consultant - Human Resources Business Partner" at Verizon. Nunez reported to Jennifer Dennison, the Acting Associate Director of Human Resources at Verizon, Jacqueline Underwood, the Director - Human Resources Business Partner at Verizon, and Craig Ritchie, the Executive Director - Human Resources Business Partner at Verizon. Elizabeth Troxell is a Senior Consultant - Employee Relations/EEO at Verizon. Lisa Damask is Verizon's Vice President of Human Resources.
2. Verizon's Policies
Verizon employees are bound by Verizon's Code of Conduct. The Code of Conduct provides, in relevant part:
We earn credibility with our customers, business providers and co-workers by keeping our commitments, acting with honesty and integrity and pursuing our company goals solely through ethical and professional conduct.
If you are a supervisor, you have the added responsibility of creating an open and supportive environment where employees feel comfortable asking questions, raising concerns and reporting misconduct. Ethical behavior does not simply happen; it is the product of clear and direct communication of behavioral expectations, modeled from the top and demonstrated by example.
Dkt. 34-4, Code of Conduct, at 29. The Code of Conduct also states that employees "must report suspected and actual violations of this Code, company policy and the law." Id. at 30. In addition, it provides that Verizon "will not tolerate any threatening, hostile or abusive behavior in the workplace... and will take immediate and appropriate action against offenders, up to and including termination of employment and referral for criminal prosecution." Id. at 32
Verizon also maintained an Equal Employment Opportunity and Affirmative Action Policy which Verizon gave to all of its employees, including Cardoso. That policy provides, in relevant part:
Supervisors/managers are responsible for ensuring compliance with this policy and for providing a work environment free from any form of discrimination or harassment.... Managers who have knowledge of conduct that violates company policy and fail to take the proper corrective steps, or who otherwise condone such conduct, will themselves be subject to corrective action up to and including termination of employment.
Id. at 16.
Cardoso understood that as a manager, if she felt that one of her employees was the victim of harassment or retaliation or if she was aware of any violations of the Code of Conduct or the EEOC policy, she had to report the conduct to Verizon. She further understood that if she failed to do so, Verizon could terminate her employment. During her deposition, Cardoso acknowledged that pushing, shoving, kicking or physically assaulting another employee would violate the workplace violence policy in Verizon's Code of Conduct. She also stated that she knew that she should report any complaints of discrimination or harassment to her supervisor or Human Resources, or call Verizon's Compliance Guideline phone number and understood that the Compliance Guideline system existed to allow employees to "call in to make complaints" about "[a]nything that [employees] feel that is not happening - that is not right." Dkt. 34-1, Cardoso Dep., at 86:16-24. In addition, she agreed that because she was a management-level employee, the Code of Conduct required her to set the tone of the Crystal Lake store.
3. The July 4, 2012 Incident and Verizon's Investigation Into the Incident
Heath, the Manager of Retail Sales for the Crystal Lake store, was on vacation on July 4, 2012, leaving Cardoso in charge. On July 10, 2012, Heath sent himself a reminder email entitled "Nicole Performance Issues from while I was gone." Dkt. 42, Ex. 8 at Bates No. 677. The email listed issues with the store that occurred during Heath's absence, such as missing price tags and several burned out lights on the sales floor.
At some point after returning from his Fourth of July vacation, Heath contacted Nunez in Verizon's Human Resources department about a conversation that he had with Retail Sales Representative St. Marie. Heath reported that St. Marie had voiced concern about physical interactions between Cardoso and Retail Sales Representative Paredero on July 4th, possibly in the presence of customers. After speaking with Heath, Nunez followed up by emailing Samuel Martinez (an employee in Verizon Wireless's Corporate Security department) to request a copy of the surveillance video from the Crystal Lake store on July 4, 2012. Nunez also interviewed Paredero, Cardoso, and St. Marie.
a. Nunez' Interview with Paredero
Nunez met with Retail Sales Representative Paredero on July 18, 2012. Paredero told Nunez that on July 4, 2012, toward the end of the day, Cardoso threw various objects at him, including a telephone receiver and a stapler. He stated that the stapler hit him in the groin and that as a result, he asked for permission to leave work early as he was in pain. Following this interview, Nunez sent a second email to Martinez asking if he could locate any surveillance video from the Crystal Lake store on July 4, 2012, showing Cardoso throwing a phone receiver or stapler at Paredero.
b. Nunez' Interview with St. Marie
Nunez also interviewed Retail Sales Representative St. Marie. St. Marie stated that between approximately 3:00 p.m. and 5:00 p.m. on July 4, 2012, Cardoso and Paredero were engaged in physical interactions in the Crystal Lake Verizon store. St. Marie reported that he saw Paredero hit Cardoso on the head with a box. After that, Cardoso threw a stapler at Paredero.
c. Nunez' Interview with Cardoso
On July 25, 2012, Nunez visited the Crystal Lake store to investigate the allegations about Heath (his alleged late arrivals and early departures) and the July 4th incident. She interviewed Cardoso and took notes. Cardoso admitted that she threw objects at Paredero, including a stapler aimed at Paredero's groin which hit its target and caused him to fall to the floor. Nunez's deposition testimony, which is consistent with her notes, reflects that Nunez told Cardoso that surveillance video showed Cardoso throwing a stapler and phone receiver at Paredero while a customer was shopping. Cardoso argues inconsistently that she told Nunez that customers were not present and that she did not recall if customers were present when she threw the stapler. During this conversation, Cardoso did not tell Nunez that she had felt intimidated or threatened by Paredero, either on the date of the stapler-throwing incident or any other time. Cardoso also did not say that she threw a stapler and other objects at Paredero in self-defense.
Nunez asked Cardoso if she was having any issues at the store. In response, Cardoso told Nunez that she felt that Wahba "talks to females differently." Dkt. 34-4, Nunez Decl., ¶ 12. Cardoso also told Nunez that she felt Wahba spoke to her in a "tone, " was not personable and did not give her one-on-one coaching. Id .; see also Dkt. 34-1, Cardoso Dep., at 167:2-170-2, 170:19-25 (stating that Wahba ignored her while saying hello to "other people, " "talk[ed] down to people, " and was "condescending. He would talk down to me like I wasn't a person."). Cardoso then voiced concern about possible retaliation. Nunez told her twice that retaliation would not occur. According to Nunez and Wahba, Nunez did not tell Wahba about Cardoso's complaints about him.
d. Cardoso's Version of Events
According to Cardoso, on an unspecified date, she twice reported Heath for tardiness. She made these reports to Shawn Hansen, who was the District Manager for the region that included the Crystal Lake store at that time. Thus, the reports ...