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Wilson v. Peterson Cleaning Inc.

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

July 17, 2017

Maurice O. Wilson Plaintiff,
Peterson Cleaning Inc., Defendant.


          Judge Philip G. Reinhard United States District Court Judge

         For the reasons stated below, defendant's motion [53] for summary judgment is granted. Judgment is entered in favor of defendant and against plaintiff on all of plaintiff's claims. The status hearing set for Judge Johnston on 8/18/2017 is stricken. This case is terminated.


         Plaintiff, Maurice O. Wilson, Sr., brings this action against defendant, Peterson Cleaning, Inc., his former employer. Plaintiff alleges he was discriminated against because of his race and retaliated against in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., resulting in his constructive discharge. Defendant moves [53] for summary judgment.

         LR56.1 sets out the procedures governing motions for summary judgment in this court. LR56.1 requires a party moving for summary judgment to provide a statement of material facts, set forth in short numbered paragraphs, with citations to the record (affidavits, depositions, etc.) relied upon to support the facts set forth in the paragraph. LR56.1(a)(3). The party opposing summary judgment is then required to file a concise response to each numbered paragraph of the moving party's statement including, in the case of any disagreement, specific references to the record (affidavits, depositions, etc.) supporting the disagreement. LR56.1(b)(3)(B). The party opposing summary judgment is also to file a statement of additional facts which require denial of summary judgment, in the same format, with the same type of supporting references to the record as required of the moving party, LR56.1(b)(3)(C), and the moving party likewise must respond to this additional statement of facts. LR56.1(a). Any properly supported facts presented in either the moving party's statement of facts or the opposing party's statement of additional facts, that is not controverted by a properly supported response (as just described) will be deemed admitted. LR56.1(a); LR56.1(b)(3)(C).

         Defendant did not file a response to plaintiff's statement of additional facts, so the properly supported facts set forth in plaintiff's statement of additional facts are deemed admitted for purposes of summary judgment. LR56.1(a). Of course, even in a case where facts are disputed, the properly supported facts are always taken most favorably to the nonmoving party (in this case the plaintiff) on summary judgment. Accordingly, the facts are taken primarily from plaintiff's statement of additional facts, or his supporting evidence where it varies from the statement of additional facts.[1]

         Plaintiff is an African-American man. He was employed by defendant from 2005 to 2014. Plaintiff primarily worked on the floor crew (cleaning floors) but often covered for employees on cleaning crews (which did general cleaning) when a cleaning crew member could not make it to work. Plaintiff was the only African-American man employed by defendant to work on the floor crew. In his affidavit, he states he was subjected to racial harassment and complained internally through written and verbal communication with defendant from 2006 until 2014.

         In November 2012, plaintiff spoke with Mark Wild, defendant's president, about obtaining the lead supervisor position. Mark Wild told plaintiff he would like to see plaintiff's performance before giving him the lead supervisor position. In his affidavit, though not in his statement of additional facts, he states he was told by Steve Moriarity (“Steve”), that Brandon Moriarity was “promoted to a supervisor.” In January 2014, plaintiff again inquired into the position but plaintiff was denied it. In his affidavit, plaintiff states he spoke with Mark Wild about the promotion in January 2014, but Wild never got back to him about it.

         On April 14, 2014, plaintiff filed an EEOC charge. The charge alleged “[d]uring my employment I have been subjected to harassment. I have complained internally to no avail.” On April 14, 2014, plaintiff told Steve, who is defendant's operations manager, that he had filed the EEOC charge. On April 17, 2014, plaintiff spoke with Steve about a past complaint plaintiff had and Steve told him he had spoken with defendant's HR manager Tracey Frasier about racial slurs plaintiff had complained about. According to plaintiff's affidavit, on April 21, 2014, Steve spoke on the phone with plaintiff's wife and referred to plaintiff by using a racial slur. In a meeting on April 29, 2014, plaintiff discussed with defendant plaintiff's treatment on the floor crew, his treatment by Nancy Shaffner and the racial slur used by Sheryl Parker[2]. In his affidavit, but not in his statement of additional facts, plaintiff says he “also complained to them about the treatment I received from Steve.” At this meeting defendant gave plaintiff the option to remain on the floor crew, take a few cleaning accounts, or quit. After this meeting plaintiff was removed from the floor crew. In his statement of facts, he does not say whether he chose to take the cleaning accounts but in his affidavit he says he took the cleaning accounts “to avoid the continuing treatment by Steve and the floor crew members and to avoid loss in income.” He was placed on paid leave until May 5, 2014.

         On May 5, 2014, Mark Wild notified plaintiff that he had received plaintiff's formal complaint with the EEOC and asked plaintiff what he had said to the EEOC. On May 5, 2014 plaintiff began working on accounts defendant assigned him. Sometime in early May, Sonia Delgado called plaintiff and told him to return his company issued cell phone. Plaintiff advised her that plaintiff was paying defendant in installments for that phone. Delgado advised plaintiff that defendant would no longer be paying for the line and plaintiff would have to obtain his own phone service.

         On May 12, 2014, plaintiff received a text from Nancy Shaffner, advising him there were complaints about the cleaning on the Chick-Fil-A account. In his response to defendant's statement of facts, plaintiff states he received a verbal warning May 12, 2014 regarding his cleaning. Plaintiff requested help on this account and offered to give up some of his hours. Mark Wild said “no” to this request of plaintiff's. On May 14, 2014, plaintiff learned a close family friend had died. Plaintiff called Nancy Shaffner and asked for the night off. She said she would have to get it approved by Mark Wild. Mark Wild called plaintiff and gave him the night off. According to plaintiff's affidavit, on May 15, 2014, plaintiff was called to the office and asked to sign a write-up dated May 12, 2014. When he asked what the write up was for he was told it was for violating a company policy. According to his affidavit, he had been cleaning Chick-Fil-A for one week. This was his first write-up in seven years. When he asked for a copy he was told he had to wait until Shaffner signed it and he would be given one later.[3] On May 27, 2014, plaintiff left defendant's employ. In his response to defendant's statement of facts, plaintiff does not dispute that he tendered his resignation and terminated his employment on that date. On August 28, 2014, plaintiff filed an amended charge of discrimination with the EEOC.

         Looking first to the discrimination claim, in a discrimination case, on summary judgment, “the proper question to ask is whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused plaintiff's discharge or other adverse employment action.” Ferrill v. Oak Creek-Franklin Joint School Dist., No. 15-3805, 2017 WL 2627820, * 4 (7th Cir. June 19, 2017) (internal quotation marks and citations omitted). “[S]ummary judgment is the ‘put up or shut up' moment in a lawsuit.” Citizens for Appropriate Roads v. Foxx, 815 F.3d 1068, 1077 (7th Cir. 2016). Plaintiff, therefore, must provide sufficient evidence to back up his claims. Id. Defendant argues it is entitled to summary judgment on the discrimination and retaliation claims because plaintiff has not presented any evidence that plaintiff suffered any adverse employment action or that any similarly situated employee was treated more favorably.

         “A cognizable adverse employment action is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Chaudhry v. Nucor Steel-Indiana, 546 F.3d 832, 838 (7th Cir. 2008) (internal quotation marks and citation omitted). Plaintiff's evidence that he suffered an adverse employment action prior to his filing of the first EEOC charge is 1) his statement that he spoke with Mark Wild in November 2012 about becoming the lead supervisor and that Wild said he would like to see plaintiff's performance before giving him the position and 2) that he talked to Wild in January 2014 about a lead supervisor position and that Wild did not give him a response.

         Generally, to establish a claim for failure to promote, plaintiff needs to show that he applied for and was qualified for a position, that he was rejected for the position, and someone outside plaintiff's protected class who was not better qualified obtained the position. Riley v. Elkhart Community Schools, 829 F.3d 886, 892 (7th Cir. 2016). Assuming, without deciding, that plaintiff's conversation with Mark Wild in November 2012 was an application for the job, plaintiff presents no evidence that someone who was not better qualified obtained the position. Plaintiff's evidence on this point consists of him saying Steve told him Brandon Moriarity (“Brandon”) obtained the position. Plaintiff presents no evidence concerning Brandon's qualifications for the job. He provides no basis for a factfinder to conclude Brandon was no better qualified than plaintiff. As to plaintiff talking to Mark Wild about a lead supervisor position in ...

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