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Esperson v. Cellco Partnership

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

August 4, 2017




         The plaintiff, Nicole Esperson, brings this action against Cellco Partnership, which does business as Verizon Wireless, Inc. (“Verizon”). Esperson alleges that she was discriminated against based on her sex, discharged in retaliation for statutorily protected activities, and subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, that Verizon negligently retained an employee in violation of Illinois law, and that Verizon defamed her in violation of Illinois law. Verizon moves for summary judgment on all counts. For the reasons set forth herein, that motion [67] is granted in part and denied in part.


         The following facts are undisputed unless otherwise noted.[1] Esperson began working for Verizon Wireless in June 2010 as a retail sales representative at Verizon's Arlington Heights store. As a retail sales representative, Esperson was responsible for selling Verizon products and services, greeting customers, upgrading devices, stocking the sales floor, and putting shipments away in inventory. Esperson's performance was based on monthly sales quotas applicable to all retail sales representatives. In December 2010, Esperson transferred to Verizon's Woodfield Mall store. She subsequently transferred to Verizon's Gurnee store in December, 2011. At the Gurnee store, Esperson reported to store manager Alan Zisman and assistant managers Brian King, Henry Sanchez, and Kevin Marolt. Zisman was on a leave of absence in 2013, and during that time Marolt served as the acting store manager. In 2013, Esperson also occasionally reported to Jazzmene Miller, a floating supervisor who filled in when assistant managers or store managers were unavailable.

         Retail sales representatives worked three overlapping shifts with staggered start and end times. Lunch breaks were not scheduled, but were instead taken with supervisor approval as retail sales representatives had gaps between customers. Esperson's schedule varied weekly.

         In order to assess performance, Verizon employed an annual performance rating system based on set performance objectives. Performance objectives were primarily based on an employee's sales data, but also took into account formal corrective actions for violations of the code of conduct or attendance policy. There were four possible year-end performance ratings given to retail sales representatives: “leading, ” which was the best rating, “performing, ” which was an intermediate rating, “developing, ” which was the lowest possible rating, and “new, ” which indicated that an employee has been in a position for less than six months and therefore does not have a rating. Verizon also employed a four step escalating performance improvement plan. Under that plan, an employee would receive a verbal warning, a written warning, and a second written warning before a request for termination would be filed with human resources.

         Esperson received a “developing” performance review rating in 2011, which reflected her work at the Woodfield Mall store. In March 2012, Esperson received a verbal warning for failing to meet her required sales metrics over a three-month period. In May 2012, Esperson progressed to a first written warning for again failing to meet her required sales metrics over a three-month period. In June 2012, Esperson received her second written warning for failing to meet her required sales metrics over a three month period. In July 2012, Esperson received a re-issued written warning for failing to meet her sales metrics for the past three months, and was warned that if she did not meet her minimum sales metrics in July she would proceed to the final step of the performance improvement plan, a request for termination. Esperson was not subsequently terminated, but she received a year-end performance review rating of “developing” in 2012. In 2013, Esperson received informal warnings regarding her performance in February, March, May, September, October, and December. In November 2013, Esperson received a formal verbal warning for failing to meet the threshold for sales metrics and was again placed into the performance improvement plan. Accordingly, Esperson received a year-end performance review rating of “developing” in 2013. In January 2014, Esperson received a written warning concerning her failure to meet her required sales metrics for January.

         At the time Esperson worked at the Gurnee store, Verizon's human resources operations in the Midwest were managed by executive director Craig Ritchie, who was assisted by associate director Elizabeth McMahon and Ilka Nunez, a human resources consultant. In December 2013, Ritchie instructed an unidentified employee to run a report in the compensation system to identify employees in the Midwest Area with three or more years of consecutive “developing” ratings. This report identified 19 employees who had received “developing” ratings for 2011, 2012, and 2013. Of those 19 employees, 13 were male and 6 were female. Ritchie consulted with Verizon's Vice-President of Human Resources, and the two agreed that the employees on the list had demonstrated a consistent record of nonperformance and should be terminated once the accuracy of the list was confirmed. The list was confirmed to be accurate and, on March 7, 2014, Nunez informed Esperson that she was being terminated based on her three consecutive years of “developing” ratings.

         The following facts are subject to dispute and are therefore taken in a light most favorable to the plaintiff. In May 2013, Timothy Murray began working at the Gurnee store. In October 2013, Murray sent his co-worker Esperson a text message confessing his love for her, and stating that if she ever broke up with her boyfriend he would like to take her out on a date. In addition to the text message, Murray began to follow Esperson around the store and repeatedly bring up his desire to date her. Esperson refused his attention by telling him to go away or to leave her alone, but sometimes Murray would disregard these requests. Murray also insulted Esperson's appearance, calling her names like “gap tooth.”

         Esperson informed her supervisors that Murray was following her around and showed them the text message that he had sent her. She requested that managers ensure that Murray did not take his lunch break at the same time as Esperson, but Murray's lunch break continued to occasionally overlap with Esperson's. In December 2013 Murray placed Esperson's winter boots in the freezer for some reason. When Esperson found out, she immediately informed Zisman.

         On December 22, 2013, Esperson and Murray were assigned to open the store with floating supervisor Jasmine Miller. Due to inclement weather, Murray asked Esperson if he could borrow her Jeep to go to McDonald's for lunch. Esperson declined, and Murray responded by asking “[w]hy do you have to be such a bitch?” and stating that Esperson was being “such a fucking cunt.” Miller promptly separated Esperson and Murray. Miller attempted to e-mail human resources after the incident, but her e-mail did not go through. Once he was informed of the incident, Marolt, who was serving as the acting store manager, instructed Esperson not to report the incident to human resources because human resources might respond by transferring Esperson to another store in order to separate her from Murray. Zisman, who was the store manager, subsequently informed Marolt that he needed to report the incident to human resources due to its serious nature. Ultimately, Zisman informed human resources of the incident in late January, 2014. Nunez, who was a human resources consultant, conducted an investigation of the incident. Esperson, during her interview with Nunez, informed Nunez that she felt safe remaining at the Gurnee location and did not want human resources to transfer herself or Murray to another location. Instead, she asked that Murray be placed on a corrective action. Nunez concluded that Murray's conduct on December 22 constituted a violation of Verizon's code of conduct. Because Murray had received a final written warning nine months before, Nunez re-issued that final written warning.

         Following the December 22 incident, Murray's conduct improved somewhat. In an unreported incident, however, Murray walked up to Esperson and informed her that her boyfriend was an “asshole.” He also sent her a text message in February 2014 complaining that she had “dumped” a customer on him. Esperson was terminated soon thereafter.

         During 2011 and 2012, Esperson dated Verizon Wireless Assistant Manager Aaron Ziomek, who worked at another location. Prior to Esperson's transfer to the Gurnee store, Zisman, the store manager of the Gurnee location, informed assistant store manager Sanchez that Esperson would be moving to their store, and that one of the reasons for her transfer was because she was dating Ziomek, who was a manager. According to deposition testimony, Zisman falsely informed Sanchez that Ziomek was married at the time he was dating Esperson.

         Legal ...

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