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Guerrero v. T-Mobile USA, Inc.

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

March 6, 2015

Alejandra Guerrero, Plaintiff,
T-Mobile USA, Inc., Defendant.


THOMAS M. DURKIN, District Judge.

Plaintiff Alejandra Guerrero filed this lawsuit against her former employer, Defendant T-Mobile USA, Inc. ("T-Mobile"), alleging state law claims under the Illinois Human Rights Act ("IHRA") for a hostile work environment based on sexual orientation ("Count I") and retaliatory discharge based on complaints she made about that hostile work environment ("Count II"). R. 21. T-Mobile asks the Court to grant summary judgment in its favor. R. 38.

Legal Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court considers the entire evidentiary record and must view all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To defeat summary judgment, a nonmovant must produce more than "a mere scintilla of evidence" and come forward with "specific facts showing that there is a genuine issue for trial." Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). 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 (1986).


As an initial matter, the Court must address Guerrero's failure to respond to T-Mobile's statement of material facts and to submit a statement of additional material facts pursuant to Local Rule 56.1. The Seventh Circuit has "consistently and repeatedly upheld a district court's discretion to require strict compliance with its local rules governing summary judgment." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir.1995)). Guerrero's failure to comply with Local Rule 56.1 functions as an admission of T-Mobile's version of the facts. L.R. 56.1(b)(3)(B). Such a wholesale admission usually results in a grant of summary judgment to the party whose facts are admitted. Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) ("Essentially, the penalty for failing to properly respond to a movant's 56.1(a) statement is usually summary judgment for the movant (at least if the movant has done his or her job correctly) because the movant's factual allegations are deemed admitted."). On this basis, the Court deems Guerrero to have admitted T-Mobile's statement of material facts. The Court has reviewed the facts according to T-Mobile and finds that there is no genuine dispute of material fact, and T-Mobile is entitled to judgment as a matter of law. T-Mobile's motion for summary judgment is granted for this reason.

Even though she failed to comply with Local Rule 56.1, Guerrero did file an affidavit and response purporting to state her version of the facts.[1] Since these facts were not presented in the form prescribed by Local Rule 56.1, they are properly disregarded. Perrywatson v. United Airlines, Inc., 762 F.Supp.2d 1107, 1115 (N.D. Ill. 2011) aff'd sub nom. Perrywatson v. United Air Lines, Inc., 527 F.Appx. 559 (7th Cir. 2013) (noting, where plaintiff failed to follow the local rules and instead submitted a short affidavit on which she relied, that Rule 56.1 does not allow for such a substitution) (citing FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 632 (7th Cir. 2005)); Dunhill Asset Servs. III, LLC v. Tinberg, 2012 WL 3028334, at *3 (N. D. Ill. July 23, 2012) ("Under settled law, facts asserted in a brief but not presented in a Local Rule 56.1 statement are disregarded in resolving a summary judgment motion.") (internal quotation marks omitted). Nevertheless, as the Court discusses below, even if Guerrero's version of the facts was properly admitted on this motion, those facts do not demonstrate a genuine dispute of material fact sufficient to defeat summary judgment.

T-Mobile is a nationwide provider of wireless communication services, with retail locations throughout the United States. R. 40 ¶ 1. Guerrero worked as a part-time Retail Sales Associate ("RSA") at the River Oaks Mall in Calumet City, Illinois (the "River Oaks Store") from January 27, 2009 until she and African-American coworker Eric Baker were terminated on August 19, 2011 for engaging in a vulgar and "race-tainted" verbal altercation. Id. ¶ 2. In addition to Guerrero, who is homosexual, the River Oaks Store employed several other RSAs, including Eric Baker, and two Retail Associate Managers ("RAMs")-Levar Lloyd and Tamika Watkins. Id. ¶ 3; R. 21 at 3.

Although the word "manager" appears in their title, neither Lloyd nor Watkins had the authority to effect any change in the employment status of any other employee, including disciplining, hiring, firing, promoting, reassigning, changing benefits, or otherwise taking any tangible employment actions against any other employee. R. 40 ¶ 4. In 2011, all River Oaks Store employees, including Guerrero, Baker, Lloyd and Watkins, reported directly to Store Manager Richard Perry. Id. ¶ 5. Perry and District Managers Eric Velez and Nem Bulic had the authority to discipline and terminate employees of the River Oaks Store with the approval of the then-Senior Manager of Human Resources, Adam Krupa. Id. ¶ 6.

T-Mobile maintains a detailed Equal Employment Opportunity Policy ("EEO Policy") in its Code of Conduct Manual ("Manual"). Id. ¶ 7. The EEO Policy states that "[a]ll decisions concerning the employment relationship will be made without regard to age, race, color, religion, creed, sex, sexual orientation, national origin, marital status, veteran status, the presence of any physical or mental disability, or any other status or characteristic protected by federal, state, or local law." Id. ¶ 8 (emphasis added). Additionally, the EEO Policy expressly prohibits discrimination, harassment and retaliation, and states that "T-Mobile employees have the right to work in an environment that is free of unlawful discrimination and harassment" based upon sexual orientation. Id. ¶ 9. The Manual also contains a complaint procedure which requires employees who believe that they have been harassed to report the harassment to the Human Resources Department and/or to a member of management, and the last page of the Manual contains multiple telephone numbers, intranet portals, internet sites, and addresses employees can utilize when they have employment-related issues of any kind, including harassment issues Id. ¶ 10.

Guerrero signed an Employee Acknowledgment form certifying that she had read and would periodically review the Manual and that she understood the following:

It is not always possible for the Company to be aware of all of the conduct of concern to its employees. I must report any conduct that I believe is improper under T-Mobile's... non-harassment, non-retaliation and other policies to my management team, another appropriate supervisor and managers and/or a Human Resources representative.

Id. ¶ 11.

Guerrero alleges that fellow RSA Baker made three derogatory comments regarding her sexual orientation during the 10-day period preceding the August 11, 2011 altercation resulting in their terminations. Id. ¶ 12. Guerrero's Illinois Department of Human Rights ("IDHR") Charge is attached to her Amended Complaint and is a sworn statement. In that document, Guerrero states that the harassment began on July 31, 2011, but then references comments beginning on August 1, 2011. Id. ¶ 13. Guerrero alleges that the following occurred between August 1 and August 10, 2011: (1) Baker said to her "since you fuck bitches, do you pee standing up" on two occasions; and (2) Baker said to her "do you think you're a dude because you're with girls." Id. ¶ 14. Store Manager Perry was on a medical leave of absence during the time period when Guerrero claims the harassment occurred, and the ranking (and only) onsite supervisor at the time was Hillary Knudsen, the Store Manager of a T-Mobile Kiosk also located in the River Oaks Mall. Id. ¶ 15. Before Perry went on medical leave, Baker made no comments to Guerrero regarding her sexual orientation. Id. ¶ 16. Guerrero did not report any of Baker's pre-August 11, 2011 harassing comments to Knudsen or to T-Mobile's Human Resources Department. Id. ¶ 17. Guerrero told only RAM Levar Lloyd that Baker had made these comments at some point during the 10-day period during which they were made. Id. ¶ 18.

On August 11, 2011, Guerrero and Baker engaged in a verbal altercation (the "August 11 altercation") on the store floor where each raised their voices and used racially offensive and other inappropriate language, including use of the words "fuck" and "nigga" multiple times. Id. ¶ 19. Guerrero states in her affidavit and response that following the altercation, she complained to both RAM Levar Lloyd and RAM Tamika Watkins and that neither took any action to remedy the situation. R. 44 ¶ 5; R. 44-1 ¶ 12. Guerrero called Hillary Knudsen to report the incident and asked Knudsen if she could leave for the day; Knudsen granted ...

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