United States District Court, N.D. Illinois, Eastern Division
For Tami Tarochione, Plaintiff: Edward M. Fox, LEAD ATTORNEY, Jonathan Daniel Wassell, Ed Fox & Associates, Chicago, IL.
For Roberts Pipeline, Inc, Defendant: Craig Robert Annunziata, LEAD ATTORNEY, James M Hux, Jr., Fisher & Phillips LLP, Chicago, IL.
MEMORANDUM OPINION AND ORDER
Milton I. Shadur, Senior United States District Judge.
Tami Tarochione (" Tarochione" ) has sued her former employer Roberts Pipeline, Inc. (" Roberts" ), charging that Roberts violated the Americans with Disabilities Act and the Americans with Disabilities Amendments Act (collectively
" ADA," 42 U.S.C. § § 12101 et seq.), as well as Title VII of the Civil Rights Act of 1964 (" Title VII," 42 U.S.C. § § 2000e et seq.), by discriminating against her on the basis of disability and of sex when it fired her from her job as a laborer on a Roberts project in Mokena, Illinois. Roberts now moves for summary judgment on all counts under Fed.R.Civ.P. (" Rule" ) 56. Although Tarochione opposes the motion as to Title VII, she is silent as to the ADA. For the reasons set out in this opinion, Roberts' motion is granted as to Tarochione's ADA claim and is denied as to her Title VII claim.
Factual Background 
What follows is a summary of the facts that are undisputed, except where noted otherwise. Tarochione, born June 7, 1959, is a member of Laborers' International Union of North America, Local 75 (" Local 75" ). She has been a union laborer for some 20 years (Tarochione Dep. 9:4-9:12), and during her career she has performed physically demanding jobs such as " throwing skids" (manually unloading heavy pallets) and operating jackhammers (id. at 58:15-58:18). Roberts, meanwhile, is a corporation that performs pipeline maintenance and construction work (D. St. ¶ 1).
Roberts hired Tarochione in August 2012 through the Local 75 union hall: Roberts put in a request for a worker who met the qualifications (in terms of general experience or specific certifications) to work on a pipeline integrity project, and Tarochione was assigned because she was the next available worker on Local 75's roster who had the requisite general experience as a laborer (Martin Dep. 22:7-22:23). On August 7 Tarochione began work for Roberts on a pipeline integrity digging crew near Mokena, Illinois (D. St. ¶ 3) as part of the six-member digging crew, a group that also included Curtis Fay (" Fay" ), Frank Sharrard (" Sharrard" ) and William Dietz (" Dietz" ), who also served as the Local 75 union steward (P. Resp. St. ¶ ¶ 11-14). Joe Huffman (" Huffman" ) was the non-working foreman supervising the four laborers as well as two machine operators (D. St. ¶ 9). Tarochione was the only woman in the crew (P. St. ¶ 2). When she first reported to the job site, other members of the crew remarked on her small size and told her she " probably didn't weigh more than a buck 20 " and had " big shoes to fill" (Tarochione Dep. 30:11-30:19).
Tarochione and Roberts dispute what happened once she started working. Roberts asserts, and several deponents testified, that Tarochione could not control two power tools necessary for the job, an air spade and a tamper jack (D. St. ¶ ¶ 32, 39).
Roberts also states that Tarochione dug with her hands -- instead of with a shovel -- in an unsafe way (D. St. ¶ ¶ 23-26). Tarochione counters that she used her hands only when proper, and as for the power tools she was never given a fair opportunity to use them (P. Resp. St. ¶ ¶ 24-27, 32, 38). During her deposition she testified that she was allowed to use the tamper jack for only about 10 minutes before Fay took it from her (Tarochione Dep. 28:4-28:21). She did not use the air spade at all (id. at 26:20-27:7) and received no counseling in the use of the tamper jack (id. 39:13-39:21). All she received in the way of instruction came when Sharrard adjusted the tamper jack for Tarochione " a couple of times . . . so [she] could use it better" (id.). She also said that she used her hands only to remove pieces of dirt too large to remove with a shovel, and that the male workers also did that (id. 39:1-39:12). For the most part, Tarochione says, the male workers would not let her use the power tools (despite her requests to do so) and instead consigned her to cleanup and fire-watching duty (id. 26:10-26:21). For a time she was even prevented from using a small torch necessary to melt patches of coating on the pipe (id. 27:8-27:10).
Despite all this, Tarochione avers that Sharrard told her on Friday, August 17 -- 10 days after she started -- that she was doing a " really good job" (id. 38:18-38:19). But at some point Sharrard approached Huffman and told him that Tarochione was unable to control the power tools (Huffman Dep. 65:8-65:21). Huffman, who stated that he had also seen Tarochione use the tamper once without being able to control it properly, decided to terminate Tarochione on Friday, August 17 (D. St. ¶ 44-45). He testified that he made that decision because Tarochione's inability to control the tools posed a risk of rupturing the pipeline and because that inability made it harder to spread work among the digging crew members (D. St. ¶ 34; Huffman Dep. 78:17-79:11). On that same day Huffman got in touch with an office worker at Roberts to communicate his decision to fire Tarochione and to order a final paycheck for Tarochione to pick up (D. St. ¶ 46).
Apparently on that same Friday, August 17, Sharrard and Huffman also teased Fay that he would have to quit the job if Tarochione continued working (Tarochione Dep. 62:12-62:19, 63:18-63:22). Those comments were occasioned by the fact that Fay's wife was extremely jealous and would not let him work on crews that included women (id. at 64:15-64:18).
Huffman did not tell Tarochione that she was being fired, and so Tarochione worked the next day, Saturday, August 18. All the members of the digging crew (including Huffman and Sharrard) ate lunch together that day (id. at 34:14-19). Fay told the group about his habit of drinking heavily -- a habit that included, according to Tarochione, showing up to work drunk (id. at 86:17-86:21) -- and blamed it on back pain caused by bone spurs (id. at 33:6-33:10). Tarochione responded that she had undergone shoulder replacement surgery but did not complain about the pain (id. at 33:13-33:14).
Before work started on Monday, August 20, Huffman told Dietz in the latter's capacity as union steward that Tarochione was being fired (D. St. ¶ 47; Dietz Dep. 51:16-52:8). According to Dietz, Huffman
simply told him Tarochione was not " cutting it" and gave him no further explanation even when Dietz asked (Dietz Dep. 52:1-52:3). Dietz told Tarochione when she reported for work that morning that she had been fired, and he gave her her last paycheck (Dietz Dep. 53:19-54:5).
Tarochione responded by requesting that her union pursue a grievance on her behalf (P. Resp. Ex. 3). She also retained a lawyer, who sent Dietz an affidavit that he in turn signed (Dietz Dep. 60:2-60:4, 61:8-61:20). Dietz's affidavit includes statements that largely support Tarochione's version of events: that her work was " just as good" as that of the male workers, that she was not given an opportunity to use the power tools and that Huffman could give only a vague reason for his decision to fire Tarochione (P. Resp. Ex. 4). During Dietz's deposition he made it clear that he was no longer able to recall the specifics about Tarochione's employment (including the quality of her work), but he did remember his conversation with Huffman (see Dietz Dep. 48:20-48:21, 51:19). Dietz did testify that he reviewed the affidavit before signing it and that the events were fresher in his memory when he did so (id. at 61:8-61:20).
Tarochione's union did not pursue the grievance (Martin Dep. 44:14-44:16). Bill Martin, a vice president of Local 75, also asked Huffman and Huffman's supervisor why Tarochione was fired but was given only answers along the lines that Tarochione was not " cutting it" (P. Resp. Ex. 3; Martin Dep. 30:17-31:1). On February 19, 2013 Tarochione filed this lawsuit against both Local 75 and Roberts. Tarochione later voluntarily dismissed her complaint as to the union pursuant to a settlement agreement (see Dkt. 45), several months before the depositions of union officials Dietz and Martin were conducted.
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)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants (here Tarochione) and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). Courts " may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts" in resolving motions for summary judgment (Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). But a nonmovant must produce more than " a mere scintilla of evidence" to support the position that a genuine issue of material fact exists, and " must come forward with specific facts demonstrating that there is a genuine issue for trial" (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. ...