United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Zegarra brought this suit against his former employer, John
Crane, Inc. (“JCI”), alleging race, color, and
national origin discrimination in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., age discrimination in violation of the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq.,
and retaliation for complaining about the discriminatory
denial of overtime. Doc. 1. Discovery is closed and a jury
trial is set for February 6, 2017. Doc. 58. JCI has moved for
summary judgment on all claims. Doc. 51. The motion is
filed its summary judgment motion on March 18, 2016.
Ibid. At Zegarra's request, the court set a very
generous briefing schedule, with his response not due until
June 13, 2016, nearly three months later. Doc. 57. On June
10, Zegarra moved to extend the deadline, Doc. 59, and the
court extended the deadline to July 11, Doc. 61. On July 11,
Zegarra moved for a further extension to August 12. Doc. 62.
The next day, the court denied the motion for failure to
comply with Local Rule 5.3(b), but on its own motion extended
the deadline to July 21. Doc. 65. The order noted:
“Given the extremely generous original briefing
schedule …, the 28-day extension already given to
Plaintiff …, and the impending pretrial and trial
dates …, if Plaintiff does not respond to the summary
judgment motion by 7/21/2016, the court will treat the motion
as having been submitted and will rule forthwith.”
Ibid. The court amended that order on July 13 as
follows: “The 7/12/2016 order … is amended to
state that [i]f Plaintiff responds to the summary judgment
motion by 7/21/2016, Defendant shall reply by
8/4/2016.” Doc. 66.
20, Zegarra filed an “emergency motion to modify the
July 12, 2016 order based on new extenuating
circumstances.” Doc. 67. The motion asserted that due
to an email error, Zegarra's counsel did not see the July
12 order until July 19. Id. at ¶¶ 5-6. The
court denied Zegarra's motion, noting that it did
“not assert or even suggest that Plaintiff's
counsel did not see the 7/13/2016 order … when it was
issued”; that the July 13 order “highlighted the
existence of the 7/12/2016 order and, in particular,
explicitly referenced the 7/21/2016 due date for
Plaintiff's response to Defendant's summary judgment
motion”; and that Zegarra had not been deprived of an
opportunity to respond to JCI's summary judgment motion,
because “all told, he was given over four months to
respond ….” Doc. 69. Zegarra did not respond to
JCI's summary judgment motion by July 21, so JCI's
motion is ready for decision. See Flint v. City of
Belvidere, 791 F.3d 764, 768 (7th Cir. 2015)
(“[C]ase management depends on enforceable deadlines
…. In managing their caseloads, district courts are
entitled to-indeed they must-enforce deadlines.”)
(internal quotation marks omitted); Raymond v. Ameritech
Corp., 442 F.3d 600, 605 (7th Cir. 2006) (“Rule
6(b) … clearly gives courts both the authority to
establish deadlines and the discretion to enforce
them.”); Reales v. Consol. Rail Corp., 84 F.3d
993, 996 (7th Cir. 1996) (“The district courts must
manage a burgeoning caseload, and they are under pressure to
do so as efficiently and speedily as they can, while still
accomplishing just outcomes in every civil action. …
Necessarily, they must have substantial discretion as they
manage their dockets.”); Shine v. Owens-Ill.,
Inc., 979 F.2d 93, 96 (7th Cir. 1992) (“[J]udges
must be able to enforce deadlines.”).
with the local rules, JCI filed a Local Rule 56.1(a)(3)
statement of undisputed facts along with its summary judgment
motion. Doc. 53. Each factual assertion in the Local Rule
56.1(a)(3) statement cites evidentiary material in the record
and is supported by the cited material. See N.D.
Ill. L.R. 56.1(a) (“The statement referred to in (3)
shall consist of short numbered paragraphs, including within
each paragraph specific references to the affidavits, parts
of the record, and other supporting materials relied upon to
support the facts set forth in that paragraph.”). The
Seventh Circuit “has consistently upheld district
judges' discretion to require strict compliance with
Local Rule 56.1.” Flint, 791 F.3d at 767
(citing cases); see also 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.”); Cracco v. Vitran
Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)
(“Because of the important function local rules like
Rule 56.1 serve in organizing the evidence and identifying
disputed facts, we have consistently upheld the district
court's discretion to require strict compliance with
those rules.”) (internal quotation marks omitted).
Here, the problem is not that Zegarra did not
strictly comply with Local Rule 56.1, but rather
that he did not comply at all. He did not file any
response materials-no brief, no Local Rule 56.1(b)(3)(B)
response to JCI's Local Rule 56.1(a)(3) statement, and no
Local Rule 56.1(b)(3)(C) statement of additional facts.
Accordingly, the court accepts as true the facts set forth in
JCI's Local Rule 56.1(a)(3) statement. See Curtis v.
Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir.
2015) (“When a responding party's statement fails
to dispute the facts set forth in the moving party's
statement in the manner dictated by the rule, those facts are
deemed admitted for purposes of the motion.”);
Parra v. Neal, 614 F.3d 635, 636 (7th Cir. 2010);
Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 393
(7th Cir. 2009); Cady v. Sheahan, 467 F.3d 1057,
1061 (7th Cir. 2006); Raymond, 442 F.3d at 608.
said, the court is mindful that “a nonmovant's
failure to … comply with Local Rule 56.1 … does
not … automatically result in judgment for the movant.
… [The movant] must still demonstrate that it is
entitled to judgment as a matter of law.” Keeton v.
Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012).
The court therefore will recite the facts in JCI's Local
Rule 56.1(a)(3) statement and then determine whether, on
those facts, JCI is entitled to summary judgment. The court
sets forth the following facts as favorably to Zegarra, the
non-movant, as the record and Local Rule 56.1 allow. See
Woods v. City of Berwyn, 803 F.3d 865, 867 (7th Cir.
2015). In considering JCI's motion, the court must assume
the truth of those facts, but does not vouch for them.
See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281
(7th Cir. 2015).
manufactures, sells, and services engineered sealing systems
for industrial markets. Doc. 53 at ¶ 3. Zegarra worked
for JCI from December 19, 1988 through April 24, 2013.
Id. at ¶ 1. During 2012 and 2013, Zegarra
worked in JCI's Central Parts Warehouse. Id. at
¶¶ 5, 7. His primary job duties involved printing
sales orders from a computer and placing them in designated
buckets so that “pickers” could grab the orders
and select parts. Id. at ¶ 6. Zegarra was the
only employee in the Central Parts Warehouse with that
primary duty. Id. at ¶ 7. Zegarra's race is
Hispanic/Latino, his color is non-white, and his national
origin is Peruvian. Id. at ¶ 2. At the time of
his termination, Zegarra was 44 years old. Ibid.
employee handbook outlines a three-step discipline process:
(1) a written warning that “remains active in an
employee's personnel file” for twelve months; (2) a
final warning; and (3) termination. Id. at
¶¶ 17-18. The handbook sets forth an
“Employee Appeal Procedure” that permits
employees to address workplace complaints with their
supervisor, their supervisor's boss, the human resources
department, and more senior leaders. Id. at ¶
26. Zegarra acknowledged at his deposition that he received
the handbook during the relevant time period; he did not
recall seeing the Employee Appeal Procedure, but acknowledged
that it was contained in the handbook that he received.
Id. at ¶¶ 16, 27.
about April 27, 2012, Jerry LaVigne, JCI's Manager of
Warehouse and Logistics, spoke to Zegarra and issued him a
written warning for having not worn “personal
protective equipment” on at least eight occasions over
the preceding eight months. Id. at ¶¶ 10,
19, 21. LaVigne issued the warning because Zegarra did not
wear safety glasses and safety shoes in the warehouse.
Id. at ¶ 20. Zegarra did not appeal the
warning. Id. at ¶ 28.
anonymously report unsafe acts or work rules violations, JCI
employees may use a “Hazard Identification
Ticket” (“HIT”). Id. at ¶ 29.
In April 2013, JCI received two HITs asserting that Zegarra
was viewing pornography on his work computer during work
hours. Id. at ¶ 30. Because JCI's Internet
Access Policy forbids employees from using the internet to
view sites containing sexually explicit material, LaVigne and
Joe Vitetta, a shop floor supervisor in the Central Parts
Warehouse, commenced an investigation. Id. at
¶¶ 13, 31, 40. Brett Zumsteg, an information
technology specialist at JCI, reviewed the websites that
Zegarra had visited and the images that he had viewed to
determine if the HITs' allegations were true.
Id. at ¶ 32. Based on Zumsteg's
investigation, JCI concluded that Zegarra had accessed
Craigslist.com, raising the possibility that he had viewed
explicit images on his work computer. Id. at ¶
admitted that he viewed sexually explicit images on his work
computer on multiple occasions, but contended that he did so
unintentionally because the images would “pop up”
on his computer screen. Id. at ¶¶ 35,
37-38. JCI's Internet Access Policy does not excuse the
unintended viewing of sexually explicit material.
Id. at ¶ 40. On or about April 12, 2013,
LaVigne and Vitetta met with Zegarra to discuss the results
of their investigation. Id. at ¶ 39. At the
meeting, Zegarra was upset and threatened to “clean
April 16, 2013, Zegarra told Liway Irvin, a female coworker,
that he would need to “strip search” her.
Id. at ¶ 41. Irvin was offended by the
comment-which Zegarra contends was a joke-and asked him to
stop. Id. at ¶¶ 42-43. JCI's Sexual
Harassment Avoidance Policy states that sexual harassment can
include “teasing and joking.” Id. at
April 23, 2013, with the April 27, 2012 written warning still
in Zegarra's file, Vitetta issued Zegarra a final warning
for willfully refusing to follow his instructions about
printing sales orders and putting them in designated areas
before leaving work each day, and also for distributing work
to pickers, which was not part of his job. Id. at
¶¶ 22, 24. Prior to that warning, Zegarra had been
counseled several times to place orders in designated areas
before leaving work for the day. Id. at ¶ 23.
cumulative result of these events-violations of the internet
access and sexual harassment policies, and the final warning
for insubordination-JCI terminated Zegarra on April 24, 2013.
Id. at ¶¶ 48-51. LaVigne initially
recommended Zegarra's termination; Vitetta and Cindy
Majkowicz, JCI's Operations Manager and LaVigne's
direct supervisor, were “involved” as well, and
Erika Barrera, a Human Resources Generalist at JCI, reviewed
and approved the request for termination. Id. at
¶¶ 8, 11, 46-47.
February 28, 2014, 300 days after his termination, Zegarra
filed a charge with the EEOC, alleging discrimination and
termination based on age, color, national origin, and race.
Id. at ¶ 52; Doc. 53-3. As for age
discrimination, Zegarra contended at his deposition that
other “40 plussers” were terminated, including
his former colleagues Raman Betgraviel and Amir Hermiz,
although neither told Zegarra that age was the reason for
their terminations. Doc. 53 at ¶¶ 54-55. Zegarra
acknowledged at his deposition that nobody at JCI made any
age-related comments to him, but he asserts that Danielle
Lambert and Scott Peele were similarly situated younger
employees who were not terminated. Id. at
¶¶ 56, 60. Zegarra indicated that he believed that
Lambert received favorable treatment because she was (Zegarra
believed) in a romantic relationship with LaVigne, and that
Peele received favorable treatment because he and LaVigne
were friends. Id. at ¶¶ 57-59. On May 23,
2013, a month after Zegarra's termination, JCI terminated
Lambert for violating work rules, interfering with
production, and engaging in horseplay. Id. at ¶
respect to color, race, and national origin discrimination,
Zegarra contends that Lambert and Peele are white,
non-Hispanic/Latino, and non-Peruvian comparators who should
have been terminated based on their alleged violations of
JCI's rules of conduct. Id. at ¶ 70.
Zegarra further contends that discrimination resulted in his
being regularly denied the chance to work overtime from
roughly May 1, 2012 until his April 24, 2013 termination.
Id. at ¶ 63. JCI assigns overtime based on
departmental need; if the Central Parts Warehouse is behind
in a particular area, employees who work in that area are
asked to work overtime. Id. at ¶ 65. Only if
additional employees are required are volunteers from other
departments considered. Ibid. Zegarra asserts that
“a lot of times” he would arrive to work on a
Monday to find that other employees had worked overtime over
the weekend. Id. at ¶ 64. He also asserts that
“the majority of Spanish people weren't getting
overtime and whites were.” Id. at ¶ 69.
May 1, 2012 through his termination, Zegarra worked 274.4
overtime hours. Doc. 53-20 at 18-19, 39. Over the same time
period, Lambert worked more overtime (315.5 hours) than
Zegarra did, and Peele worked slightly less (262.3 hours).
Id. at 11-12, 15, 33, 35-36. This pattern was a
partial reversal from the first four months of 2012, when
Zegarra worked 91.5 overtime hours, Lambert worked 35.2
overtime hours, and Peele worked 22.1 overtime hours.
Id. at 11-12, 15, 18-19.
alleges that on six occasions in 2012 and two occasions in
2013, he was subject to retaliation for complaining to
LaVigne about being denied overtime, and that his termination
was in retaliation for those complaints. Doc. 53 at
¶¶ 76, 78. According to Zegarra, the retaliation
consisted of the further denial of overtime hours and the
“constant looking over [Zegarra's] shoulder about
work and sales order[s].” Id. at ¶ 77.
Zegarra did not complain to human resources or file an
employee appeal concerning his belief that he was denied
overtime for discriminatory reasons. Id. at ¶
79. LaVigne acknowledges that Zegarra spoke to him about the
assignment of overtime, but he does not recall Zegarra
complaining that he was denied overtime because of his race.
Id. at ¶ 80.
alleges that beginning in 2012 and continuing into 2013, he
experienced a hostile work environment based on his race,
color, and national origin. Id. at ¶¶ 71,
74. According to Zegarra, LaVigne would pull Zegarra aside to
tell him that someone “is complaining about [Zegarra]
not doing this or doing this” and to “be more
careful.” Id. at ¶ 72. Zegarra alleges
that although LaVigne pulled Zegarra aside “maybe a
handful of times” in 2012, those interactions
“became such a constant thing that work became a very
stressful place to be ….” Id. at
¶¶ 72-74. Zegarra never complained to human
resources or filed an employee appeal with respect to the
allegedly hostile work environment. Id. at ¶
complaint alleges that JCI discriminated against Zegarra on
account of his age, race, color, and national origin by
terminating him (Counts I-III); denied him overtime and
subjected him to a hostile work environment on account of his
race, color, and national origin (Count IV); and retaliated
against him for complaining about the allegedly