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Dapkus v. Chipotle Mexican Grill, Inc.

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

January 4, 2017



          Virginia M. United State Kendall es District Court Judge

         Plaintiff Anthony Dapkus brought this suit against his former employer Chipotle Mexican Grill, Inc. (“Chipotle”) pursuant to 42 U.S.C. § 1981 alleging that Chipotle discriminated against him on the basis of his race. Dapkus, an African American, alleges that his rights were violated against because he was subjected to racially discriminatory epithets, was physically threatened, and was treated less favorably than employees who were not African American. Chipotle now moves for summary judgment arguing that no reasonable jury could find that Dapkus was discriminated against in violation of Section 1981. For the following reasons, Chipotle's Motion for Summary Judgment [29] is denied.


         Chipotle, a “fast casual” restaurant chain that specializes in Mexican fare, owns multiple restaurants in the Chicagoland area, including in Chicago's South Loop neighborhood (the “Restaurant”). (Dkt. No. 33 at ¶ 2.) Every Chipotle restaurant is operated by a set of crew members who prepare and serve food, clean, and maintain the restaurant. (Id. at ¶ 6.) There are four levels of management that oversee the crew members, comprising of (in ascending order of responsibility) the Kitchen Manager, Service Manager, Apprentice Manager, and General Manager. (Id. at ¶ 8.) The managers' responsibilities are split up as follows: the Kitchen Manager is typically responsible for the inventory and preparation of food; the Service Manager is in charge of customer service and the dining room; the Apprentice Manager assists the General Manager; and the General Manager is responsible for the overall operation of the restaurant, including the hiring and firing of employees. (Id. at ¶¶ 8-12.) Finally, Restaurateurs, who are above General Managers, are responsible for the field operations of one or more restaurants and report directly to a Team Leader, who is in turn responsible for multiple restaurants within a geographic region. (Id. at ¶ 13.)

         During Dapkus's employment at the Restaurant, Joseph Medina was the Kitchen Manager; Leticia Nava and Andre Velez were the Service Managers; Jesus Gonzalez and then Katherine Vega were the Apprentice Managers; Cindy Gutierrez was the General Manager; Patricia Alvarez was the Restauranteur; and Stephanie Vazquez was the Team Leader. (Id.)

         A. Chipotle's Policies and Procedures[1]

         Chipotle maintains and updates its “Respectful Workplace Policy” which includes an Equal Employment Opportunity (EEO) policy, Code of Conduct, and Anti-Discrimination, Harassment and Sexual Harassment policy. (Id. at ¶ 14.) Employees are permitted to anonymously report inappropriate behavior, including discriminatory or harassing behavior, by submitting a complaint through two separate avenues: the Respectful Workplace Hotline and Chipotle Confidential. (Id. at ¶ 15.) The Crew Handbook, which Chipotle updated in January 2014, includes requirements that employees are to treat fellow employees and customers with respect and that discrimination or harassment on the basis of race is prohibited. (Id. at ¶ 16.)

         B. Dapkus's Employment at Chipotle

         Cindy Gutierrez, the General Manager for the Restaurant, hired Dapkus as a crew member at the location approximately one week prior to its opening on November 6, 2013. (Id. at ¶¶ 11, 19-20.) Gutierrez was the only Chipotle employee involved in the hiring process. (Id. at ¶ 11.) Prior to Restaurant's opening, Dapkus participated in a six-day training and orientation. (Id. at ¶ 20.) During his orientation, Dapkus watched a video regarding Chipotle's Respectful Workplace Policy, received paperwork regarding the Policy, and instructions regarding restaurant operations, including how to prepare and maintain the food. (See Dkt. No. 34-1 at 102-104.) During Dapkus's employment, 10 of the 23 employees at the Restaurant were African American.[2] However, no African American employee held a management position at the Restaurant. (Dkt. No. 33 at ¶¶ 22, 23.)

         1. Use of Harassing Language at the Restaurant

         Dapkus alleges that during his employment, words such as “nigger, ” “nigga, ” and “gorilla” were used by African American and Latino employees.[3] (See id. at ¶ 24; Dkt. No. 43 at 8.) In particular, Velez and Medina used such terms, and other employees, including Walker and Vega, testified that they heard other employees use these terms in the Restaurant. (See Dkt. No. 44 at 1-2; see also, e.g., Dkt. No. 34-2 at 115:17-116:4 (Vega testifying: “Q. You previously testified that you heard Mr. Medina use the word nigger at the Chipotle South Loop restaurant. Did you ever hear anyone else use the word nigger other than Mr. Medina? A. Oh, yes, Andre and Angel for sure, Dantrall. There was another guy, I can't remember his name, this is the one I was referring to before, too, but I cannot remember his name for the life of me. And he was African American if I am not mistaken.”); id. at 116:9-11 (“Q. Did you ever witness any Hispanic employee refer to an African American employee as a gorilla? A. I believe that was also Joseph.”); Dkt. No. 34-1 at 284:19-285:2 (Dapkus testifying that Medina told him on at least ten occasions “Don't run out of meat today, nigger, not on my clock.”).) Dapkus further testified that he personally heard Gutierrez, the General Manager, use the terms “nigger” and “nigga, ” though he acknowledges that no other deposed employee testified that they specifically heard Gutierrez use those terms. (See Dkt. No. 33 at ¶ 33, Response.) However, the parties dispute (1) whether the terms were used directly towards Dapkus[4] or other African Americans, (2) whether the terms were used in a collegial or racially harassing manner, and (3) whether Dapkus himself used the words nigga or nigger. (Id.; Dkt. No. 33 at ¶¶ 24, 27, 31, 32; Dkt. No. 44 at ¶ 45.)

         Dapkus also testified that he told the managers not to use the term nigger. In particular, he states that Velez responded by saying “oh, shut up, nigger.” (See Dkt. No. 34-1 at 206:1-12 (“Q. And did you ever tell [Velez] to not use that word?” A. Yes, I told, I told all of them. Well, not all of them, but I told the managers that it wasn't cool when they use the word. ‘Oh, shut up, nigger, ' like just brushed me off. And I also told the manager that came over there from another restaurant, Angel, I told him about the situation. Q. So, which of the managers did you ask not to use the word? A. I told them all not to use it.”).)

         2. January 8, 2015 Knife Incident

         Dapkus also testified that Medina threatened him with a knife behind the grill, located directly behind the line where the customers are served their food, on January 8, 2015. (See Dkt. No. 33 at ¶ 25.) According to Dapkus, he and Medina were cutting meat and vegetables and Medina told him “Don't run out of meat. Don't run out of meat today, nigger, not on my watch, ” and then said “Don't make me use this, ” in reference his knife. (See Dkt. No. 34-1 at 179:2-16.) No one else witnessed this interaction. (Id.) According to the Aloha Shift Details - a record of employees signing in and out of work - Dapkus and Medina did not work together on that date. (See Dkt. No. ¶ 26 (“On January 8, 2014, Dapkus worked from 7:20 am until 3:02 pm and Medina worked from 3:09 pm until 12:30 am.”).) Dapkus disputes the accuracy of the Aloha records, citing in particular Vega's statement that “managers will change the times and hours punched in and out to be in line with the matrix that's designed by Chipotle. So I mean, this was produced by Chipotle, but I don't know if it's accurate.” (See Dkt. No. 34-2 at 121:12-17.) Dapkus continued to work with Medina for more than one week before reporting the incident. (Dkt. No. 33 at ¶ 25.) He testified that he was delayed in reporting the incident because Alvarez was not at the Restaurant until over a week later. (Dkt. No. 34-1 at 180:14-22.)

         3. Disparity in Employee Treatment

         Although the parties generally agree about the staff's racial makeup, they disagree regarding whether the Hispanic employees were treated more favorably than the African American employees. Vega, for example, testified that workers of Latino or Mexican descent received better shifts, more hours, and more leeway from Gutierrez and Alvarez. (See Dkt. No. 34-2 at 128:9-13.) On the other hand, Chipotle takes the position that no witnesses specifically testified to African American employees being treated less favorably than other employees. (See Dkt. No. 33 at ¶ 29.)

         C. End of Employment

         On February 28, 2014, Dapkus quit[5] following a verbal altercation with a transgender customer during which Dapkus told the customer to “go find yourself.” (Id. at ¶ 21; see also Dkt. No. 34-1 at 141:22-149:15 (Dapkus testifying that he quit after the incident).) Dapkus acknowledged during his deposition that making such a statement to a transgender person is demeaning, but testified that he did not know it was demeaning at the time that he made the statement. (Dkt. No. 34-1 at 149:16-20.) During his termination meeting with Gutierrez and Velez, Dapkus states that he told Gutierrez “You know what? I already know that you all want to fire me or want to get rid of me anyway. So just give me my check and I'll just go.” (Id. at 160:3-9.) Although the parties agree that Dapkus's last day of work at Chipotle was February 28, 2014, Chipotle's employment records indicate that his last day of employment was May 8, 2014, and that the reason for the end of his employment was a “voluntary failure to report.” (See Dkt. No. 44 at ¶ 74.)

         STANDARD ...

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