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Johnson v. Advocate Health and Hospitals Corp.

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

October 7, 2016

Warren Johnson, Robert Pannell, Kimberly Scott-Murray, Annette Smith, and Sherry Young, Plaintiffs,
Advocate Health and Hospitals Corporation, d/b/a Advocate Christ Medical Center, Defendant.



         Five technicians in Advocate Christ Medical Center's Environmental Services Department complain of racial discrimination by their managers. They allege this treatment amounted to a hostile work environment in violation of Title VII and § 1981 of the Civil Rights Act. 42 U.S.C. § 2000(e), et seq., and § 1981. Three plaintiffs, Warren Johnson, Kimberly Scott-Murray, and Annette Smith, also allege that they were wrongfully terminated on the basis of their race in violation of Title VII. 42 U.S.C. § 2000e-2(a)(1). Advocate moves for summary judgment, and its motion is granted.

         I. Legal Standards

         Summary judgment is appropriate if “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, 323 (1986). A court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. Chaib v. Geo Grp., Inc., 819 F.3d 337, 341 (7th Cir. 2016). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of proof on this point. See Celotex, 477 U.S. at 323.

         The moving party must also file a statement of material facts for which there is no genuine issue and that entitle the movant to judgment as a matter of law. See N.D. Ill. Local Rule 56.1(a)(3). The nonmoving party must file a response to the movant's statement, which in the case of disagreement, must include: “specific references to the affidavits, parts of the record, and other supporting materials relied upon.” Id. at 56.1(b)(3)(B). Statements of fact that are supported by the record, but that are not properly controverted, are admitted. Id. at (b)(3)(c); see also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Uncorroborated, self-serving testimony disputes a material fact only if it is based on personal knowledge or firsthand experience. See Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). Arguments and conjectures do not properly controvert a statement of fact. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006).[1]

         II. Facts[2]

         In 2012, Advocate hired Aramark Management Services and reorganized the supervision and operation of the Environmental Services Department (the parties call the department EVS). [64] ¶ 6; [62-2]. Aramark's management team was required to be familiar with and to follow Advocate's policies and procedures. [64] ¶ 7. Aramark employed most of the plaintiffs' supervisors named in this lawsuit: Aramark General Manager, Denise Wiley, [64] ¶ 8; Aramark Assistant Director of EVS, Chris Skalnik, [64] ¶ 22; Aramark Assistant Director of EVS, Mike Michalkowski, [64] ¶ 26; Aramark EVS Manager, Kym Hudson, [64] ¶ 18; Aramark EVS Manager, Larry Addison, [64] ¶ 19; Aramark EVS Manager, Susan Castillo, [64] ¶ 10; and Aramark EVS Manager, Dwan Jones, [64] ¶ 36. Advocate employed: Advocate Director of Human Resources, Jeremey Sadlier, [64] ¶ 31; Advocate Vice President of EVS, Margaret DeYoung, [64] ¶ 26; Advocate EVS Manager, Anthony Griffin, [62-2] at 84:22-23 and [64] ¶ 71; Advocate interim EVS Manager, Aaron Smith, [62-1] at 64:1-20 and [64] ¶ 15; Advocate Human Resources Consultant, Abigail Oman, [64] ¶ 76; and Advocate Human Resources Consultant, Adrian Thurman-Coe, [64] ¶ 25.

         Each of the five plaintiffs, along with the majority of EVS associates, is African American. [1] ¶¶ 5, 7, 9, 11, and 13; [64] ¶ 8. Many members of EVS leadership are also African American: Denise Wiley, [64] ¶ 8; Aaron Smith, [64] ¶ 15; Kym Hudson, [64] ¶ 18; Larry Addison, [64] ¶ 19; Anthony Griffin, [64] ¶ 71; and Dwan Jones, [64] ¶ 36. Several EVS leaders are white: Chris Skalnik, [64] ¶ 22; Mike Michalkowski, [64] ¶ 26; Jeremey Sadlier, [64] ¶ 31; and Susan Castillo, [64] ¶ 10. The plaintiffs complain of mistreatment by both African American and white supervisors.

         A. Plaintiff Warren Johnson

         Plaintiff Johnson was employed with Advocate for less than one year; he received multiple disciplinary actions for failure to meet department cleaning standards and was ultimately terminated. Advocate's Smith gave Johnson a Level 1 warning in February 2014, [64] ¶ 16; Aramark's Addison gave Johnson a Level 2 warning in April 2014, [64] ¶ 19; Aramark's Hudson gave Johnson a Level 3 Final Warning in May 2014, [64] ¶ 20; and Aramark's Hudson placed Johnson on a Performance Deficiency Notice in July 2014, [64] ¶ 21. When Johnson's rooms continued to fall below department standards in July 2014, even after disciplinary warnings and training, Aramark's Skalnik and Hudson notified Johnson of Advocate's decision to terminate his employment. [64] ¶ 22; [71] ¶ 35 (Noting generally that Advocate reviewed termination decisions of its employees). Johnson disputes the validity of each of these disciplinary actions and believes they were motivated by race. [64] ¶¶ 16-22.

         Johnson says two white female employees had higher rates of pay than he had upon hire, but he does not offer any admissible evidence to support this fact (out-of-court statements by the employees, offered for the truth as to their rates of pay, are inadmissible hearsay). [64] ¶ 11. Johnson was denied paid time off, but he does not know the circumstances under which his managers approved or denied other employees' paid time off requests. [64] ¶ 23. Advocate's Smith interrupted Johnson's breaks once or twice; Aramark's Michalkowski interrupted his breaks “maybe once”; and Aramark's Castillo interrupted his breaks “often.” [64] ¶ 24. Johnson does not know if these managers interrupted other employees' breaks. [64] ¶ 24.

         Aramark's Castillo was involved in hiring Johnson, but she later told him that he “clean[ed] like a monkey.” [64] ¶¶ 10, 25. (Castillo denies saying this.) [64] ¶ 25. Aramark's Michalkowski would “mock [Johnson] as if to say African Americans only speak slang” by saying “yo” and telling other African American associates (whose names Johnson could not recall) that Michalkowski knew they could do it. [64] ¶ 26. Neither Johnson nor the other associates who heard this reported it to Advocate HR. [64] ¶ 26.[3] Johnson also heard Advocate's DeYoung say to another employee that it was a hassle to get black employees to leave and that she preferred Polish employees because they cleaned better. [64] ¶ 26. Johnson reported the incident to the president of the hospital, who told Johnson he would investigate the matter. [46] at 347:23-349:10. Johnson believes Aramark's Wiley discriminated against him, by putting him in “an environment that was segregated if you will, ” with harder tasks, after he discussed his idea to improve patient satisfaction. [64] ¶ 28.

         Johnson created a list of associates (mostly African American) who he believed had payroll issues and who were treated poorly by Hudson. [64] ¶ 31. He gave Advocate's HR department the list and they investigated his concerns (Johnson contests the thoroughness of the investigation); some of the payroll issues were resolved. [64] ¶ 31.

         B. Plaintiff Kimberly Scott-Murray

         Plaintiff Scott-Murray was employed by Advocate for over eleven years. Only during her last year of employment did Scott-Murray begin to receive disciplinary notices, which ultimately led to her termination. Aramark's Addison gave Scott-Murray her first level of discipline in July 28, 2014, for a break that Addison believed was unauthorized but that Scott-Murray believes was authorized. [64] ¶ 48. After Scott-Murray refused to sign the disciplinary notice and began to walk away, Aramark's Skalnik followed Scott-Murray and put his hands on Scott-Murray to turn her around. [64] ¶ 48. Scott-Murray reported the incident to HR; Advocate's Thurman-Coe investigated the incident and brought Scott-Murray back to work under a Performance Deficiency Notice by Aramark's Addison. [64] ¶ 49. In August 2014, Addison gave Scott-Murray a Level 3 Final Warning for absences, which Scott-Murray believes were excused paid time off. [64] ¶ 50. In August 2015, Addison, with Skalnik present, gave Scott-Murray a follow-up document to the Performance Deficiency Notice that described poor attitude and behavior by Scott-Murray, with which Scott-Murray disagreed. [64] ¶ 51. Finally, in September 2014, Addison gave Scott-Murray a termination notice for unauthorized breaks, which Scott-Murray disputed and believed was race-based. [64] ¶ 52. Advocate approved the decision to terminate Scott-Murray. [46-2] at 211:14-23.

         During her employment at Advocate, Aramark's Addison denied Scott-Murray paid time off six times, but she does not know the circumstances under which Addison granted other employees' requests. [64] ¶ 44. Scott-Murray says that white employees took unauthorized breaks, but she does not know if they were disciplined or spoken to by the managers about such breaks. [64] ¶ 53. She also cannot identify any employees who violated the attendance policy and who were not disciplined. [64] ¶ 53.

         Aramark's Skalnik told Scott-Murray not to give him “the black girl ghetto attitude.” [64] ¶ 45. Scott-Murray reported this to Advocate's DeYoung and Oman, and Skalnik never made such comments to her again. [64] ¶ 45. After she made the report, Skalnik and Addison began monitoring Scott-Murray and they moved her to more “strenuous” floors, but they did not discipline her. [64] ¶ 46.

         C. Plaintiff Annette Smith

         Plaintiff Smith was employed by Advocate for over four years. She began to receive disciplinary actions in the last year and a half of her employment, which ultimately led to her termination. Advocate's Griffin gave Smith a Corrective Action Notice in December 2012 for inappropriate behavior in front of a dispatcher; Smith contested the action but it was upheld by an arbitration panel of associates. [64] ¶ 71. Next, Smith received a 30-day Performance Deficiency Notice in December 2013. [64] ¶ 73. While under a Performance Deficiency Notice, Smith refused to accept a change to her work assignment, which led Advocate to terminate Smith. [64] ¶ 76; [71] ¶ 12.

         Smith says that two white employees had higher salaries than she had, but she does not offer any admissible evidence to support this fact (out-of-court statements by other employees about their own salaries, offered to establish their salary amounts, are inadmissible hearsay). [64] ¶ 68. She applied for several positions that she did not get, even though she believes she had the same or better qualifications than the white people who did get the positions. [64] ¶ 70. Smith did not know who received several of the positions she applied for; and for several other positions, Smith did not know the qualifications of the person who received the position. [46-3] at 33:15-44:5. To the extent Smith had personal knowledge of her competitors' qualifications, Smith based her judgments on what those employees told her-she never reviewed their resumes or job applications. [46-3] at 31:16-32:1. Smith also admits she did not know why white individuals were chosen for certain positions to which she applied. [46-3] at 33:9-10, Skalnik, Hudson, and Michalkowski (all supervisors employed by Aramark) treated Smith unprofessionally and when she complained to Advocate HR about an incident she had with Hudson that ...

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