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Padron v. Wal-Mart Stores, Inc.

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

March 31, 2017

RIDEL PADRON, Plaintiff,


          Andrea R. Wood, United States District Judge

         Plaintiff Ridel Padron alleges that his former employer, Defendant Wal-Mart Stores, Inc. (“Wal-Mart”), subjected him to various forms of discrimination because of his Cuban national origin. He claims that he was paid less and given less work schedule flexibility than non-Cuban employees, that he was subjected to anti-Cuban harassment that included slurs and graffiti, and that he was constructively discharged for reporting the discrimination. He seeks relief for the alleged discrimination and retaliation under 42 U.S.C. § 1981. Now before the Court is Wal-Mart's motion for summary judgment. (Dkt. No. 73.) For the reasons detailed below, Wal-Mart's motion is granted.


         On February 23, 2016, this Court entered a final dispositive motion scheduling order that set March 21, 2016 as the deadline for such motions, with responses due April 18, 2016. (Dkt. No. 72.) In accordance with the scheduling order, Wal-Mart filed its motion for summary judgment on March 21; the motion was supported by a statement of undisputed material facts as required by Rule 56(c) of the Federal Rules of Civil Procedure and Local Rule 56.1. (Dkt. Nos. 73, 75.) On April 11, 2016, Padron, citing counsel's litigation schedule, filed a motion for an extension of the summary judgment response deadline. (Dkt. No. 76.) That motion was granted and the deadline reset to May 24, 2016, with Wal-Mart's reply to be filed on July 1, 2016. (Dkt. No. 78.) On July 6, 2016, this Court issued an order noting that Padron had not filed a response to Wal-Mart's motion or a request for a further extension of the filing deadline and ruled that the motion would be decided without further briefing. (Dkt. No. 80.) As a result of Padron's failure to contest Wal-Mart's statement of undisputed facts, those factual statements are deemed admitted for purposes of the present motion. Fed.R.Civ.P. 56(e)(2); L.R. 56.1(b)(1)(C) (N.D. Ill.); Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). The following factual summary is therefore taken from Wal-Mart's Rule 56 statement.

         Padron was employed at Wal-Mart's St. Charles, Illinois store, where he began work in July 1998 as a truck unloader in the receiving department. (Def.'s R. 56.1 Stmt. ¶¶ 1, 13, Dkt. No. 75.) He moved to a cart pusher position in February 2001. (Id. ¶ 15.) In June 2005, he began work as an inventory control associate and continued that work until his separation from the company on February 7, 2010. (Id.) During Padron's tenure at Wal-Mart, pay increases were based on the performance rating the employee received on his annual performance review. (Id. ¶ 62.) Padron believed that his pay was lower than that of his three non-Cuban inventory control coworkers, but he did not see their checks and did not know how much they were paid. (Id. ¶ 65.)

         Work schedules for Padron's positions at Wal-Mart were set by computer after employees filled out sheets that specified which days of the week they could and could not work. (Id. ¶¶ 21-22.) During some of his time as an unloader, Padron wanted to get some weekends off but never got them. (Id. ¶ 23.) Other employees who were not Cuban did get Saturdays and Sundays off. (Id.) Padron never saw any of their scheduling availability forms. (Id. ¶ 24.) He later told an assistant manager that he wanted weekends off. That request was accommodated and he did not thereafter remember being denied those off days when any other employee received them. (Id. ¶¶ 29-30.) The scheduling process did not guarantee that employees that requested days off would be able to work 40 hours in a week. (Id. ¶ 22.)

         On more than one occasion during Padron's time as a cart pusher, an assistant manager directed him to take out garbage and, in giving that directive, bypassed a non-Cuban cart pusher who was less burdened with work at the time. (Id. ¶ 32.) While Padron was working in inventory control, another assistant manager directed him to go outside to collect carts in a rainstorm but made no such request to non-Cuban employees. (Id. ¶ 33.) Padron had no clothing that would protect him from the rain and refused to go outside; he suffered no discipline as a result of the refusal. (Id.) The same assistant manager screamed at him over the store intercom and also screamed at him once in the store's lunch room for failing to respond to her intercom calls. (Id. ¶ 37.)

         Padron saw drawings in the store bathroom that depicted boats and stick figures along with the words “Cuban” and “little fish.” (Id. ¶ 38.) He did not know who made the drawings. (Id.) He complained about them and they were cleaned up. (Id.) Although he did not remember the time or the speaker, he heard someone comment that “the dolphins are coming.” (Id. ¶ 39.) He was not sure of the meaning of that remark. (Id.) Some coworkers asked him if he came from Cuba by raft or by plane. (Id. ¶ 40.) Others laughed at the way he spoke. (Id. ¶ 41.) In addition, Brad Wilson, who was store manager from 2004 to 2007, once told Padron that “Cubans are just like Irish people.” (Id. ¶¶ 34, 36.) Padron was not sure what Wilson meant by that remark. On a cold day when Padron was working as a cart pusher, he wore a hood that partially covered his face and Wilson said to him, “You look like a Taliban.” (Id. ¶ 35.)

         Other Cuban employees at Wal-Mart's St. Charles store filed with the Equal Employment Opportunity Commission (“EEOC”) a complaint about discrimination they faced at the workplace, and Padron cooperated with the EEOC investigation of that complaint. (Id. ¶ 42.) He also discussed the discrimination against Cubans with a Wal-Mart regional manager on more than one occasion. (Id. ¶¶ 45, 46.) Padron believes that Wal-Mart retaliated against him for discussing discrimination by cutting his work hours and giving him “coachings, ” which were early steps in the company's progressive discipline process, about alleged incidents when he began his lunch hour slightly later than the required start time. (Id. ¶¶ 46, 48.) He also believes that he was retaliated against while working as a cart pusher when a manager told him that he had to have the cart area full before he went to lunch. (Id. ¶ 49.)

         Padron requested and received approval for two weeks of medical leave to begin on December 23, 2009 and end on January 10, 2010. (Id. ¶ 52.) Padron's wife also worked at the store, and managers learned from her that he had found another job while on leave and would not be returning. (Id. ¶¶ 54, 56.) In its personnel files, Wal-Mart documented Padron's separation as voluntary and categorized him as eligible for rehire. (Id. ¶ 56.) Padron testified at his deposition that a store manager named Darryl told him that he was not at the level of other employees and that he had 15 days to raise his performance level. (Padron Dep. at 130-31, Dkt. No. 75-1.) Padron further testified that he attempted to return to work in January 2010 but was told by a woman in the personnel department not to punch in and instead to go and see Darryl. (Padron Dep. at 131, Dkt. No. 75-1.)

         Padron's complaint alleges that he was paid less than similarly-situated non-Cuban employees, that he was subjected to a “variable schedule” and not told about it while non-Cuban employees were not subjected to that schedule, that he was denied make-up days while non- Cuban employees were allowed to take them, that he was subjected to racial slurs and racist graffiti, and that he was constructively discharged for reporting the discrimination and assisting in the EEOC's investigation. (First Am. Compl. ¶ 27, Dkt. No. 33.) He seeks relief under 42 U.S.C. § 1981.


         A moving party is entitled to summary judgment if it can show that there is no genuine dispute as to any material fact and thus it is entitled to judgment as a matter of law. Hummel v. St. Joseph Cty. Bd. of Comm'rs, 817 F.3d 1010, 1015 (7th Cir. 2016). The movant has the burden of either: (1) showing that there is an absence of evidence supporting an essential element of the non-moving party's claim; or (2) presenting affirmative evidence that negates an essential element of the non-moving party's claim. Id. at 1016. As noted above, Padron's failure to contest Wal-Mart's assertions of undisputed facts results in the admission of those assertions for purposes of this action. Raymond, 442 F.3d at 608. Nonetheless, the Court must review the record to determine whether it demonstrates that Wal-Mart is entitled to judgment as a matter of law. Nabozny v. Podlesny, 92 F.3d 446, 457 n. 9 (7th Cir. 1996); White v. United Credit Union, 111 F.Supp.3d 878, 881-82 (N.D. Ill. 2015). Padron's discrimination claims under § 1981 are analyzed in the same manner as similar claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Precedents addressing claims under that statute are thus applicable here. Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010).

         I. Pay and Work ...

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