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Wyman v. Evgeros, Inc.

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

January 27, 2017

JUDITH WYMAN, Plaintiff,
v.
EVGEROS, INC. d/b/a Olympic Star Restaurant, Defendant.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY, DISTRICT JUDGE.

         Judith Wyman has filed suit against her former employer, Evgeros, Inc., which operates Olympic Star Restaurant. Wyman alleges that Evgeros refused to schedule her for morning shifts at the restaurant and ultimately terminated her employment, all due to her age in violation of the Age Discrimination in Employment Act (ADEA) and the Illinois Human Rights Act (IHRA). Evgeros has moved for summary judgment on all of Wyman's claims. For the reasons stated below, the Court grants summary judgment in favor of Evgeros on Wyman's claims based on the restaurant's failure to give her morning shifts but otherwise denies Evgeros's motion for summary judgment.

         Background

         Olympic Star Restaurant is located in Tinley Park, Illinois. Around June 2013, Evgeros acquired Olympic Star. Gerasimos (Gerry) Garbis and Evangelina Garbis (Eva) are shareholders in Evgeros. Their son, Anstasios (Taso) Garbis, took over management of the restaurant for a period of time.

         Judith Wyman began working as a server at Olympic Star in 1987. She typically worked the morning shift on Mondays and Wednesdays. During the school year, Wyman also worked as a crossing guard. In March 2013, Wyman requested and received time off to undergo surgery and to recover. Wyman's doctor released her to return to work on October 1, 2013. She approached Olympic Star's management about how to get back on the shift schedule. Elise, a manager at Olympic Star, told Wyman that the schedule for the week was already set and instead placed Wyman on on-call status. No one called off, so Wyman did not work that week. Wyman also filled out an availability form in order to be put on the schedule in future weeks. Wyman indicated on the form that she was available to work on Sundays, Mondays, Wednesdays, and Saturdays from 6:00 am to 2:00 pm.

         Elise later called Wyman to inform her that she was scheduled to work Monday, October 14 starting at 1:00 pm. Evgeros states that Wyman agreed to work this shift. Wyman says, however, that she told Elise that she could not work during these times and that she never agreed to come in. Wyman further states that she understood from Elise's response that she had been removed from the schedule for October 14. Wyman did not show up for the 1:00 pm shift. Around 2:00 pm, Wyman called Taso to explain why she was not at the restaurant. Wyman allegedly told Taso that she was unaware that she was scheduled. Evgeros contends that Wyman told Taso that she was a "morning girl" and therefore would not work the afternoon shift.

         Despite this incident, Wyman was scheduled for two more afternoon shifts, at 1:00 pm on October 21 and 28. Evgeros states that Wyman refused to work both shifts and did not show up for either. Wyman again indicates that she did not know that Olympic Star had scheduled her to work at these times and that she expected the restaurant to honor her request for morning-shift work. On October 28, Olympic Star sent Wyman a letter terminating her employment, citing the fact that she failed to appear for scheduled shifts and refused to work available shifts.

         Wyman then filed the present suit against Evgeros. Wyman alleges in count 1 that Evgeros terminated her employment due to her age in violation of the ADEA. In count 2, Wyman alleges that the same conduct violates the IHRA. Wyman alleges in count 3 that Evgeros refused to schedule her for her preferred morning shifts due to her age in violation of the ADEA. In count 4, Wyman alleges that the same conduct violates the IHRA.

         Discussion

         Evgeros has moved for summary judgment on all four of Wyman's claims. It argues primarily that Wyman has failed to state a claim of age discrimination under either the direct or indirect methods of proof. Further, Evgeros argues that the standard under the IHRA is identical to that under the ADEA and, because it is entitled to summary judgment on the claims brought under federal law, it is entitled to summary judgment on the state law claims as well.

         Summary judgment is appropriate when there is no issue of material fact such that the movant is entitled to judgment as a matter of law. Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 603 (7th Cir. 2012). Facts are viewed in the light most favorable to the non-moving party. Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002). Summary judgment is appropriate when no reasonable jury could find in favor of the non-moving party. Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657 (7th Cir. 2012).

         I. Objection to plaintiff's exhibits

         Wyman supports her response to Evgeros's motion for summary judgment with a series of exhibits attached to her Rule 56 statement. See dkt. no. 40. Evgeros has moved to strike these exhibits on the ground that they were untimely filed. Def.'s Reply at 1-3. Evgeros further argues that, without these exhibits, Wyman has failed to provide evidentiary support for her arguments, thus entitling Evgeros to summary judgment. Id.

         Courts have "both the authority to establish deadlines and the discretion to enforce them." Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006). Evgeros does not contend that it was unable to present its arguments fully and fairly due to Wyman's late filing of her Rule 56 statement and accompanying exhibits. Rather, it says that "[p]laintiff filed the exhibits after Defendant had already completed a first drafted [sic] its Reply, and now had [sic] been forced to re-draft the majority of the reply at [the] proverbial [ ] 11th hour." Def.'s Reply at 2. This indicates that Evgeros actually was able to ...


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