United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee, United States District Judge.
Elizabeth Armour (“Armour”) and Julie Castro
(“Castro”) bring this action against Defendants
Homer Tree Service, Inc.,  Homer Tree Care, Inc., Homer
Industries, LLC, Homer Management, LLC, (together, “the
Homer Companies”), and Ronald Reposh
(“Reposh”). Plaintiffs claim they were fired from
their jobs at the Homer Companies in retaliation for speaking
out against racially discriminatory hiring practices, in
violation of 42 U.S.C. § 1981. They also assert that
they were fired for refusing to participate in activities
that would violate various laws, rules, and regulations, as
prohibited by the Illinois Whistleblower Act, 740 Ill. Comp.
Stat. 174/20. For her part, Armour further alleges that
Defendants breached her employment contract and that Reposh
sexually assaulted and battered her, for which she seeks to
hold the Homer Companies liable. In turn, Homer Tree Service
and Homer Management have filed various counterclaims against
Armour, including breach of fiduciary duty, unjust
enrichment, and conversion.
seek partial summary judgment on Armour's complaint, and
Counterclaimants Homer Tree Service and Homer Management seek
summary judgment on their breach of fiduciary duty, unjust
enrichment, and conversion counterclaims. Defendants also
seek summary judgment on Castro's complaint in its
entirety. For the reasons that follow, the motions 
 are granted in part and denied in part.
Plaintiffs' Hiring and the Nature of Their
are former employees of one or more of the Homer Companies.
See Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶
12, ECF No. 148; Defs.' LR 56.1(a)(3) Stmt. (Castro)
¶ 5, ECF No. 151. Armour was hired on July 7, 2014, by
Reposh. Defs.' LR 56.1(a)(3) Stmt. (“Armour”)
¶¶ 12, 32. At all times relevant to this dispute,
Reposh served as president of Homer Tree Service, Homer Tree
Care, and Homer Management, and managing member of Homer
Industries. Id. ¶ 7.
her hiring, Armour entered into an employment agreement with
Homer Tree Service to serve as its Chief Executive Officer.
Id. ¶ 13. The agreement provides that
“[Homer Tree Service] and its affiliate companies are
desirous of engaging the services of [Armour] to operate,
coordinate, and manage the office and financial affairs of
[Homer Tree Service] and its affiliate companies.”
Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 2, ECF No. 155;
Defs.' LR 56.1(a)(3) Stmts. J.A., Ex. A (Armour Dep.
(8/26/16)), Ex. 4. As CEO, Armour reported to Reposh, and
Reposh afforded Armour substantial discretion in carrying out
her duties. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶
Tree Service, along with Homer Tree Care and Homer
Industries, paid Armour's salary through January 2015.
Id. ¶ 38. Armour's employment agreement
remained with Homer Tree Service throughout her employment;
however, in January 2015, she became CEO of Homer Management,
which paid her salary thereafter. Id. ¶¶
6, 53-54. Homer Management “provides support
to several of the other companies” and “was
created to manage the other companies and their
payrolls.” Defs.' LR 56.1(a)(3) Stmt. (Armour)
¶¶ 6, 55. Despite this, Armour received certain
payments from the other Homer Companies in January 2016.
Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 6.
hired Castro to serve as Director of Human Resources on
October 7, 2014. Defs.' LR 56.1(a)(3) Stmt. (Castro)
¶¶ 5, 7. Castro was initially hired as an employee
of Homer Tree Service. Id. ¶ 5. Like Armour,
however, her position was moved under Homer Management in
January 2015, and Homer Management paid her thereafter.
Id. ¶¶ 7-8. Castro, for her part, asserts
that “she [ ] was the Director [of Human Resources] for
all of the Homer entities, ” and testified that she did
work for all of them. Pl. Castro's LR 56.1(b)(3)(B) Stmt.
¶ 7; see Defs.' LR 56.1(a)(3) Stmts. J.A.,
Ex. C (Castro Dep.) at 82:1-4.
parties dispute various facts concerning Plaintiffs'
qualifications at the time of their hiring. Defendants claim
that Armour misrepresented to Reposh that she had obtained a
bachelor's degree from DePaul University, and that this
fact was crucial to his decision to hire her. Defs.' LR
56.1(a)(3) Stmt. (Armour) ¶¶ 31-33, 90, 92. Armour,
however, maintains that, prior to her hiring, she informed
Reposh that she had not yet formally obtained her
bachelor's degree. She claims that Reposh responded by
telling her that this would not be an issue and she should
nevertheless indicate that she had a bachelor's degree on
her resume. Pl. Armour's LR 56.1(b)(3)(B) Stmt.
¶¶ 31-33, 90, 92; see Armour Dep.
(8/26/16) at 127:8-23. As for Castro, Defendants claim that
she misrepresented on her resume that she was responsible for
managing human resources at Home Depot, that she therefore
was not qualified, and that Armour hired her anyway.
See Defs.' LR 56.1(a)(3) Stmt. (Castro)
¶¶ 9-10. For her part, Castro asserts that she in
fact was tasked with managing human resources at Home Depot.
See Pl. Castro's LR 56.1(b)(3)(B) Stmt.
Events Occurring During Plaintiffs' Employment
to Plaintiffs, a number of unlawful practices occurred at
Homer during their terms of employment. Plaintiffs'
objection to and refusal to participate in these practices
preceded their termination.
Reposh's Alleged Discriminatory Hiring Practices
Plaintiffs claim that, during their employment, Reposh told
them “on various occasions” that he did not want
African-Americans working for the Homer Companies because of
their race. Pls.' LR 56.1(b)(3)(C) Stmt. ¶
Defendants dispute that Reposh made this statement or that he
refused to hire African-Americans because of their race.
Defs.' Resp. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 10.
Plaintiffs further assert that they “repeatedly advised
Reposh that his racist views and discriminatory practices
were unlawful . . . and that they could not follow his
illegal directives.” Pls.' LR 56.1(b)(3)(C) Stmt.
¶ 12. In response to Plaintiffs' complaints, Reposh
purportedly “berated” Plaintiffs angrily,
threatened them with termination, and “attempted to
undermine them in retaliation.” Id. ¶ 13.
Defendants dispute that Reposh threatened Plaintiffs with
termination. Defs.' Resp. Pls.' LR 56.1(b)(3)(C)
Stmt. ¶ 13.
cannot identify any specific time they spoke out against
Reposh's discriminatory hiring practices other than
February 2015. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶
52; Defs.' LR 56.1(a)(3) Stmt. (Castro) ¶ 53. In
February 2015, Plaintiffs describe a meeting that occurred at
which both of them, along with Reposh, were present.
Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 14; see
Castro Dep. at 49:9- 53:24. At that meeting, Castro gave
Reposh resumes and applications she had obtained at a job
fair. Castro Dep. at 49:9-16. Castro claims that Reposh
instructed Plaintiffs that “[they] were not to consider
[the applicants] because most applicants were
African-American.” Id. at 52:8-12. Castro
testified that she told Reposh, “[w]e have to consider
them.” Id. at 53:6-10. She further claims
that, following the meeting with Reposh, she forwarded the
resumes and applications to Aaron Hocking, a manager at one
of the Homer Companies, told him that there were many
qualified applicants in the group, and “left him to
review them.” Id. at 50:14-23. Defendants
dispute Plaintiffs' account of the meeting on various
grounds. Defs.' Resp. Pls.' 56.1(b)(3)(C) Stmt.
¶ 14. Notwithstanding what occurred at this meeting,
Plaintiffs concede that they never interviewed, hired, or
otherwise considered any African-American applicants during
their tenure. Pl. Armour's LR 56.1(b)(3)(B) Stmt. ¶
47; Pl. Castro's LR 56.1(b)(3)(B) Stmt. ¶¶
months later, on August 17, 2015, Hocking hired Taurus Moore,
an African-American applicant. Defs.' LR 56.1(a)(3) Stmt.
(Armour) ¶ 43; Defs.' Resp. Pls.' LR
56.1(b)(3)(C) Stmt. ¶ 18; Defs.' LR 56.1(a)(3)
Stmts. J.A., Ex. BB, at 11. Moore is the only
African-American applicant that Defendants have identified by
name as being hired by the Homer Companies during
Plaintiffs' employment. See Defs.' LR
56.1(a)(3) Stmt. (Armour) ¶ 43; Defs.' LR 56.1(a)(3)
Stmt. (Castro) ¶ 24.Plaintiffs were not involved in
interviewing and hiring Moore. Defs.' LR 56.1(a)(3) Stmt.
(Armour) ¶ 44; Defs.' LR 56.1(a)(3) Stmt. (Castro)
¶ 25. Castro attested that she could not
recall whether Moore's resume or application was in the
resumes from the job fair discussed in February 2015, but
that she forwarded his online application at a later date to
Hocking, who in turn reviewed it and made the decision to
interview and hire him. Castro Dep. at 58:22-59:22. One day
after Moore was hired, on August 18, 2015, Reposh instructed
Armour to fire Castro. Pls.' LR 56.1(b)(3)(C) Stmt.
¶ 47; see also Defs.' LR 56.1(a)(3) Stmt.
(Castro) ¶ 75. According to Castro, Armour did not
provide a reason, but explained that she was merely following
Reposh's instructions. Pl. Castro's LR 56.1(b)(3)(B)
Stmt. ¶ 75; Castro Dep. at 220:8-14. Shortly
thereafter, on August 21, 2015, Reposh fired Armour.
Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 77; see also
Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 69.
Reposh's Purported Instructions to Terminate Employees
Invoking Workers' Compensation
point around July 27, 2015, according to Plaintiffs, Reposh
directed them to “terminate injured employees upon
their return to work or else make them as uncomfortable
[sic] to foment their departures (such as turning
off the air conditioning).” Pls.' LR 56.1(b)(3)(C)
Stmt. ¶¶ 43, 45. Reposh disputes that he gave any
such directive. Defs.' Resp. Pls.' 56.1(b)(3)(C)
Stmt. ¶¶ 43, 45. In August 2015, Plaintiffs
contacted the Homer Companies' counsel with their
concerns about Reposh's practices. Pls.' LR
56.1(b)(3)(C) Stmt. ¶ 46. According to them, counsel
wrote a memo confirming their belief that Reposh's
directive was unlawful. Id. At some point after
August 13, 2015, Plaintiffs told Reposh that they had
contacted counsel and provided Reposh with counsel's
memorandum. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 46.
Reposh “became upset.” Id. Defendants
dispute Plaintiffs' account on various grounds.
Defs.' Resp. Pls.' 56.1(b)(3)(C) Stmt. ¶ 46.
Reposh's Purported Directive to Terminate an Employee Who
Complained About a Ventilation Issue
also claims that Reposh instructed her to terminate Homer
employee Matt Lovas, who complained about a ventilation issue
at a shop affiliated with the Homer Companies. Armour asserts
that, on August 17, 2015, she spoke with Reposh about Lovas.
Pls. LR 56.1(b)(3)(C) Stmt. ¶ 60. No
Occupational Health and Safety Act (OSHA) violations or
citations were ever issued in connection with the ventilation
issue, however. Defs.' LR 56.1(a)(3) Stmt. (Armour)
¶ 98. That said, a mock inspection conducted prior to
Lovas's complaint “found that additional exposure
testing would be required to determine the efficacy of the
current ventilation system in the shop.” Id.
¶ 99. Reposh purportedly told Armour that “Lovas
was a trouble-maker who should be fired.” Pls. LR
56.1(b)(3)(C) Stmt. ¶ 61. Armour refused to fire him.
Id. Defendants dispute Armour's account of what
occurred and whether Lovas ever made the complaint at issue.
See Defs.' Resp. Pls.' LR 56.1(b)(3)(C)
Stmt. ¶ 60.
noted previously, on August 18, 2015, Reposh instructed
Armour to fire Castro, which she did. Pls.' LR
56.1(b)(3)(C) Stmt. ¶ 47; see also Defs.'
LR 56.1(a)(3) Stmt. (Castro) ¶ 75. Three days later, on
August 21, 2015, Reposh fired Armour. Pls.' LR
56.1(b)(3)(C) Stmt. ¶ 77; see also Defs.'
LR 56.1(a)(3) Stmt. (Armour) ¶ 69. According to
Defendants, Castro was terminated because she was unqualified
to perform her duties as Director of Human Resources despite
representing otherwise, and she exceeded the number of
permissible absences during the time she worked for Homer
Management. Defs.' LR 56.1(a)(3) Stmt. (Castro) ¶
75. Castro disputes these assertions and denies that they
were the true reasons for her termination. First, she
contends that she was qualified because she performed human
resources management at Home Depot prior to being hired. Pl.
Castro's LR 56.1(b)(3)(B) Stmt. ¶¶ 9, 75;
see Castro Dep. at 195:9-15. She also denies that
she exceeded her allowable leave, pointing out that Homer
Management paid out some of her remaining leave balance upon
her termination. Pl. Castro's LR 56.1(b)(3)(B) Stmt.
¶¶ 71,  75; see Castro Dep. at
respect to Armour, Defendants assert that Reposh's
decision to terminate her “stemmed from several
breaches of her Employment Agreement, in addition to other
instances of misconduct and [a] substantial decrease in
employee morale that occurred during her reign.”
Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 71.
“Among other things, Armour forwarded confidential
information to her personal email address and disclosed
confidential information to several third parties, obtained
tuition reimbursement to which she was not entitled,
purchased a new fuel management system-without
authorization-for which the company had to pay a restocking
fee, improperly accessed Reposh's company email account,
deleting and altering an email therein, ordered surveillance
on personal acquaintances and other employees, and directed
[another Homer employee] to increase the hours in [her] PTO
bank prior to termination.” Id. ¶ 72.
This purported misconduct occurred throughout Armour's
employment, beginning as early as 2014. Id.
¶¶ 75, 80. For her part, Armour concedes that
company morale decreased during her tenure and that certain
employees complained about her management as CEO. Pl.
Armour's LR 56.1(b)(3)(B) Stmt. ¶¶ 64, 66. With
two exceptions,  however, she disputes the other stated
reasons for her termination. Pl. Armour's LR
56.1(b)(3)(B) Stmt. ¶¶ 71-72. She also denies that
these reasons were the actual basis for her termination.
Id. Among other things, she observes that, on July
16, 2015, just over one month before her termination, Reposh
threw a party to commemorate her one-year work anniversary
with the Homer Companies. Defs.' LR 56.1(a)(3) Stmt.
(Armour) ¶ 67.
employment agreement stated in part: “[t]his Agreement
may be terminated by either party before the end of the term
with or without cause, by giving thirty (30) days written
notice. If [Homer Tree Service] terminates [Armour] without
cause, it shall pay [her] the equivalent of four (4) months
of her current salary.” Defs.' LR 56.1(a)(3) Stmt.
(Armour) ¶ 14; Armour Dep. 8/26/16, Ex. 4, at 4- 5. Upon
her termination, Armour did not receive any severance pay.
Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 23;
see Defs.' LR 56.1(a)(3) Stmts. J.A., Ex. MM, at
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Shell v. Smith, 789
F.3d 715, 717 (7th Cir. 2015). To survive summary judgment,
the nonmoving party must “do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, he must
“establish some genuine issue for trial such that a
reasonable jury could return a verdict in [his] favor.”
Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772-73
(7th Cir. 2012). In reviewing a motion for summary judgment,
the Court gives the nonmoving party “the benefit of
conflicts in the evidence and reasonable inferences that
could be drawn from it.” Grochocinski v. Mayer
Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir.
2013). The Court must not make credibility determinations or
weigh conflicting evidence. McCann v. Iroquois Mem'l
Hosp., 622 F.3d 745, 752 (7th Cir. 2010).
First Amended Complaint comprises the following counts:
§ 1981 retaliation claim asserted by Armour against all
Defendants (Count I); violation of § 20 of the IWA claim
by Armour against the Homer Companies (Count II); breach of
employment contract claim by Armour against Homer Tree
Service (Count III); assault and battery claim by Armour
against Reposh (Count IV); assault and battery claim by
Armour against the Homer Companies (Count V); § 1981
retaliation claim asserted by Castro against Homer Tree
Service, Homer Management, and Reposh (Count VI); and
violation of § 20 of the IWA claim by Castro against
Homer Tree Service and Homer Management. In their motions,
Defendants seek summary judgment as to all counts except
Retaliation in Violation of 42 U.S.C. § 1981
Count I of Plaintiffs' amended complaint, Armour claims
that she was terminated in retaliation for opposing
Reposh's policy of refusing to consider African-American
candidates for employment because of their race. 42 U.S.C.
§ 1981 “protects the right of all persons
‘to make and enforce contracts' regardless of
race.” Carter v. Chi. State Univ., 778 F.3d
651, 657 (7th Cir. 2015) (quoting 42 U.S.C. § 1981(a)).
Section 1981, like Title VII of the Civil Rights Act of 1964,
42 U.S.C § 2000e et seq., encompasses
retaliation claims. CBOCS W., Inc. v. Humphries, 553
U.S. 442, 457 (2008). Retaliation claims under § 1981
and Title VII are evaluated under the same framework.
Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir.
2017). “Retaliation occurs ‘when an employer
takes an adverse employment action against an employee for
opposing impermissible discrimination.'”
Carter, 778 F.3d at 657 (quoting Smith v.
Bray, 681 F.3d 888, 896 (7th Cir. 2012)).
addition to employers, individual employees who participate
in retaliatory conduct can also be liable under § 1981.
Id. A § 1981 retaliation claim requires the
plaintiff to prove that (1) she engaged in protected
activity, (2) she suffered an adverse employment action, and
(3) a causal connection between the protected activity and
adverse employment action. Id. At summary judgment,
there is no distinction between direct or indirect evidence
of causation; rather, the court must simply inquire whether a
reasonable factfinder could conclude that a plaintiff's
protected activity caused the adverse employment action.
Williams v. Office of Chief Judge of Cook
Cty., 839 F.3d 617, 626 (7th Cir. 2016) (citing
Ortiz v. Werner Enters., Inc., 834 F.3d
760, 764 (7th Cir. 2016)).
Homer Tree Care and Homer Industries as Joint
first move for summary judgment on behalf of Homer Tree Care
and Homer Industries, arguing that Armour has not provided
evidence from which a reasonable jury could conclude that
Homer Tree Care and Homer Industries employed Armour. They
therefore argue that Homer Tree Care and Homer Industries
cannot be held to have retaliated against her under §
1981. In the Title VII context-and, by extension, under
§ 1981-“multiple entities may be
considered an employee's ‘employer.'”
Tamayo v. Blagojevich, 526 F.3d 1074, 1088 (7th Cir.
2008). Whether an entity can be considered an employer
depends upon “economic realities of the work
situation.” Bridge v. New Holland Logansport,
Inc., 815 F.3d 356, 361 (7th Cir. 2016). Specifically, a
court weighs five factors: “(1) the extent of the
employer's control and supervision over the putative
employee; (2) the kind of occupation and nature of skill
required, including whether skills were acquired on the job;
(3) the employer's responsibility for the costs of
operation; (4) the method and form of payment and benefits;
and (5) the length of the job commitment.” Id.
Among these factors, “the employer's right to
control is the ‘most important'
consideration.” Love v. JP Cullen & Sons,
Inc., 779 F.3d 697, 702 (7th Cir. 2015) (quoting
Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d
377, 378- 79 (7th Cir. 1991)). And, “when control is
examined, ‘the key powers are, naturally, those of
hiring and firing.'” Id. at 703 (quoting
E.E.O.C. v. Illinois, 69 F.3d 167, 171 (7th Cir.
1995)). Whether an employer-employee relationship exists is
typically a question for the jury, and “a plaintiff can
survive summary judgment even when not all factors
support” a finding of such a relationship. See
Id. at 705.
there are numerous facts from which a reasonable jury could
conclude that at least some of the relevant factors weigh in
favor of finding that Homer Tree Care and Homer Industries
were Armour's joint employers. First, and most
importantly, a reasonable jury could conclude that they had
control over and supervised her. Reposh, who served as
president of Homer Tree Care and managing member of Homer
Industries, Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶ 7,
was Armour's supervisor, see Id. ¶ 39. He
both hired and fired her. Id. ¶¶ 24, 32,
69. Defendants note that Reposh gave Armour a substantial
degree of discretion in her duties and exercised little
day-to-day control over her. Defs.' Mem. (Armour) at 3;
Defs' LR 56.1(a)(3) Stmt. (Armour) ¶ 39. But the
relevant inquiry is whether an employer has the
“right” to control and direct an employee's
work, Defs.' Mem. (Armour) at 3 (quoting Hojnacki v.
Klein-Acosta, 285 F.3d 544, 551 (7th Cir. 2002)), not
whether the employer exercises that right. And, in any case,
Reposh both hired and fired Armour-the key powers in
more, there is evidence that the nature of Armour's
employment was such that she served as CEO of all of the
companies, including Homer Tree Care and Homer Industries.
Her employment contract stated that “[Homer Tree
Service] and its affiliate companies are desirous of
engaging the services of [a] CEO to operate, coordinate, and
manage the office and financial affairs of [Homer Tree
Service] and its affiliate companies.”
Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 2 (emphasis added).
While Homer Tree Service is named as the contracting party,
the contract's plain language nevertheless envisions
Armour serving all of the Homer Companies. To that end, Homer
Tree Care and Homer Industries paid her directly through
January 2015. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶
38. Defendants make much of the fact that, starting in
January 2015, Homer Management was created and began paying
Armour's salary. Id. ¶¶ 4, 35. But
Defendants describe Homer Management as having been created
for the purpose of supporting and managing the other
companies. Defs.' LR 56.1(a)(3) Stmt. (Armour)
¶¶ 6, 55. Thus, a reasonable jury could conclude
that, notwithstanding the creation of Homer Management,
Armour remained an employee at the service of the Homer
Companies, including Homer Tree Care and Homer Industries.
Further evidence of this fact is that Armour continued to
receive payments from Homer Tree Care and Homer Industries
after her position moved under Homer
Management. Pls.' LR 56.1(b)(3)(C) Stmt. ¶
there is evidence from which a reasonable jury could find
that Homer Tree Care and Homer Industries exercised control
over and supervised Plaintiff's employment, sought to
employ her as their CEO, and either paid her or were
responsible for reimbursing her for work-related expenses.
Based on these factors, a reasonable jury could conclude that
Homer Tree Care and Homer Industries were her joint
employers. Defendants' motion for summary judgment on
their behalf is therefore denied.
Defendants make various challenges to Armour's prima
facie case of retaliation under § 1981, beginning
with the contention that she never engaged in protected
activity. To demonstrate that she engaged in protected
activity, Armour must show that she “took some step in
opposition to a form of discrimination that [§ 1981]
prohibits.” See O'Leary v. Accretive Health,
Inc., 657 F.3d 625, 631 (7th Cir. 2011). Her opposition
must have been “based on a good-faith and reasonable
belief that [she was] opposing unlawful conduct.”
to Armour, Reposh on various occasions stated that he did not
want African-Americans working for the Homer Companies
because of their race, and Armour “repeatedly
advised” him that such a hiring practice was unlawful.
Pls.' LR 56.1(b)(3)(C) Stmt. ¶¶ 10, 12.
Defendants contend that her complaints did not constitute
protected activity because there is no evidence of any
specific African-American applicant whose application was
rejected. Defs.' Mem. (Armour) at 7; Defs.' Reply
(Armour) at 5. Plaintiffs, however, testified otherwise, and
the parties dispute whether the Homer Companies rejected
qualified African-American applicants during Armour's
employment. See Pl. Armour's LR 56.1(b)(3)(B)
Stmt. ¶¶ 45, 47. Even putting aside this dispute, a
reasonable jury could find that Armour had a reasonable,
good-faith basis for believing such, given that, at least
according to her, Reposh told her that he did not want
African-Americans working at the Homer Companies because of
their race, and, at the February 2015 meeting, specifically
refused to consider African-American applicants. Thus, a
reasonable jury could conclude from this record that Armour
engaged in protected activity.
Causation and Pretext
further argue that, even if Armour's complaints to Reposh
constituted protected activity, there is no evidence from
which a reasonable jury could conclude that she was
terminated because of those complaints. First,
Defendants offer a number of authorities for the proposition
that temporal proximity between protected activity and
adverse employment is typically insufficient evidence by
itself from which to draw an inference of causation.
Defs.' Mem. (Armour) at 10-11; Defs.' Reply (Armour)
at 6. They also observe that six months separate the last
known instance of Armour's complaints (in February 2015)
and her termination (in August 2015). Defs.' Mem.
(Armour) at 10-11; Defs.' Reply (Armour) at 6. Both
contentions, however, miss the mark. First, while temporal
proximity alone may be insufficient to infer causation,
Armour offers more. Specifically, according to Armour, Reposh
threatened her with discharge on multiple occasions after she
complained about his purported policy of refusing to employ
African-Americans at the Homer Companies. Pls.' LR
56.1(b)(3)(C) ¶ 13. A reasonable jury could conclude
that Reposh did exactly what he threatened to do. See
Bray, 681 F.3d at 901 (observing that evidence of a
direct threat of retaliation based on protected activity is
sufficient to survive summary judgment). In addition, the
timeline between protected activity and termination is not as
clear as Defendants make it out to be. The record reflects
that Armour “repeatedly advised” Reposh that the
Homer Companies' exclusion of African-American job
applicants was unlawful. Pls.' LR 56.1(b)(3)(C) Stmt.
¶ 12. While she admits that she “cannot identify
with particularity any date(s) she made these alleged
concerns known, ” Pl. Armour's LR 56.1(b)(3)(B)
Stmt. ¶ 52, the record does not establish that February
2015 was the last instance.
addition, the events immediately leading up to Armour's
termination provide further evidence from which a reasonable
jury could conclude that her protected activity caused her
termination. On August 17, 2015, Hocking hired Moore, the
only African-American offered employment at the Homer
Companies during Armour's employment that Defendants have
identified by name. Defs.' LR 56.1(a)(3) Stmt. (Armour)
¶ 43; Defs.' Resp. Pls.' LR 56.1(b)(3)(C) Stmt.
¶ 18; Defs.' LR 56.1(a)(3) Stmts. J.A., Ex. BB, at
11. One day later, on August 18, 2015, Reposh instructed
Armour to fire Castro. Pls.' LR 56.1(b)(3)(C) Stmt.
¶ 47. And three days later, on August 21, 2015, Reposh
fired Armour. Id. ¶ 77. If, as Armour claims,
Reposh had instituted a company-wide policy of not hiring
African-Americans and threatened Armour and Castro with
termination when they complained about it, a reasonable jury
could conclude that he would have been displeased about
Moore's hiring and manifest this displeasure through
firing Armour. Moreover, a jury might make much of the fact
that, a day after Moore's hiring, Reposh instructed
Armour to hire Castro, having threatened both of them with
termination based on the same protected activity. And, mere
days later, Reposh fired Armour. Drawing all reasonable
inferences in Plaintiffs' favor, a reasonable jury might
conclude that Reposh elected to terminate Plaintiffs within
days of each other because they had opposed his allegedly
discriminatory hiring practices together. In sum, this
sequence of events could lead a reasonable jury to infer that
Reposh acted with a retaliatory motive. Granted, as
Defendants point out, Armour did not hire Moore, and there is
no evidence that Reposh took retaliatory action against
Hocking, who hired him. Defs.' Reply (Armour) at 10-11
& nn. 9-10. But while these facts may certainly weaken an
inference of retaliatory motive, they do not eliminate it.
of course, maintain that Reposh had various legitimate
business reasons for terminating Armour. Defs.' Mem.
(Armour) at 13-14; Defs.' Reply (Armour) at 6-10.
Specifically, Defendants claim that her termination resulted
from various breaches of her employment agreement and a
decrease in employee morale during her time as CEO.
Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶¶ 71-72.
But, while Armour admits that there were some issues with
company morale and that employees had complained to Reposh
about her management, Pl. Armour's LR 56.1(b)(3)(B) Stmt.
¶¶ 64, 66, she testified at her deposition that the
other stated bases for her termination did not occur, or were
actions Reposh authorized or acknowledged without discipline,
id. ¶¶ 71-72. Her testimony therefore
calls into doubt whether the stated reasons for her
termination were sincerely held, and a reasonable jury could
conclude that these reasons were pretextual. Gordon v.
United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001)
(“[W]hen an employee provides ‘[a] detailed
refutation of events which underlie the employer's
negative performance assessment, ' the employee
demonstrates ‘that the employer may not have honestly
relied on the identified deficiencies in making its
decision.'” (alteration in original) (quoting
Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446,
1460- 61 (7th Cir. 1994))). In addition, Armour points out
that, on July 16, 2015-i.e., just over one month
before her termination-Reposh threw a party to commemorate
her one-year work anniversary with the Homer Companies, which
Armour claims was intended to recognize her excellent
performance. Defs.' LR 56.1(a)(3) Stmt. (Armour) ¶
67. Given the proximity of this party to her
termination and the fact that several of the purported
grounds for her termination preceded the party, a reasonable
jury could conclude that the stated grounds were not the true
reasons for her termination. Culver v. Gorman &
Co., 416 F.3d 540, 546-47 (7th Cir. 2005) (holding that
a supervisor's “sudden dissatisfaction” with
plaintiff's performance casted doubt on the stated
reasons for plaintiff's termination).
a jury must decide what in fact occurred and why Reposh fired
Armour. At this stage, however, construing every reasonable
inference in her favor, a reasonable jury could conclude that
she was fired because of her complaints to Reposh about his
racially discriminatory hiring practices.
The Manager Rule
also maintain that, even if a reasonable jury could conclude
that Armour has proven the elements of a § 1981
retaliation claim, her claim should nevertheless be
foreclosed by the so-called “manager rule.” Under
this rule, “a management employee that, in the course
of her normal job performance, disagrees with or opposes the
actions of an employer does not engage in protected
activity” for purposes of a Title VII retaliation
claim. Brush v. Sears Holdings Corp., 466 F.
App'x 781, 787 (11th Cir. 2012) (internal quotation marks
omitted). While acknowledging that the Seventh Circuit has
not adopted, let alone addressed, the viability of the
manager rule, Defendants nevertheless urge the Court to apply
it in this case. Defs.' Mem. (Armour) at 9-10; Defs.'
Reply (Armour) at 4-5.
manager rule originated from certain circuits'
interpretation of the anti-retaliation provision of the Fair
Labor Standards Act (FLSA), which proscribes
“discharg[ing] or in any other manner discriminat[ing]
against any employee because such employee has filed any
complaint or instituted or caused to be instituted any
proceeding under or related to this chapter, or has testified
or is about to testify in any such proceeding, or has served
or is about to serve on an industry committee.” 29
U.S.C. § 215(a)(3). In interpreting this language,
several circuits have arrived at the conclusion that the
FLSA's anti-retaliation provision does not reach
“activities which are neither adverse to the company
nor supportive of adverse rights under the statute which are
asserted against the company.” McKenzie v.
Renberg's Inc., 94 F.3d 1478, 1486-87 (10th Cir.
1996); accord Hagan v. Echostar Satellite, L.L.C.,
529 F.3d 617, 627-30 (5th Cir. 2008); Claudio-Gotay v.
Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102-03 (1st
Cir. 2004). Thus, under the manager rule in these circuits,
an employee must “cross[ ] the line from being an
employee merely performing her job . . . to an employee
lodging a personal complaint about [ ] wage and hour
practices of her employer and assert[ ] a right adverse to
the company” in order to prevail on an FLSA retaliation
claim. McKenzie, 94 F.3d at 1486 (emphasis omitted).
In support of the rule, the Fifth Circuit has explained that,
without it, “nearly every activity in the normal course
of a manager's job would potentially be protected
activity under [§] 215(a)(3)” and “[a]n
otherwise typical at-will employment relationship could
quickly degrade into a litigation minefield, with whole
groups of employees . . . being difficult to discharge
without fear of a lawsuit.” Hagan, 529 F.3d at
circuits have signaled support for the manager rule in the
Title VII context, as well. Weeks v. Kansas, 503 F.
App'x 640, 642-43 (10th Cir. 2012); Brush, 466
F. App'x at 787. Three other circuits, however, as well
as the only lower court in this circuit to have considered
the issue, have declined to extend the rule. DeMasters v.
Carilion Clinic, 796 F.3d 409, 424 (4th Cir. 2015);
Littlejohn v. City of New York, 795 F.3d 297, 318
(2d Cir. 2015); Chapman v. Milwaukee Cty., 151
F.Supp.3d 892, 900 (E.D. Wis. 2015); see Johnson v. Univ.
of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000)
(“[T]he fact that Plaintiff may have had a contractual
duty to voice [discrimination] concerns is of no consequence
to his claim.”). These courts have provided persuasive
reasons for declining to apply the manager rule in the Title
VII context, and the Court concludes that these reasons apply
with equal force to a § 1981 retaliation claim.
while the FLSA narrowly defines the formal conduct that it
protects, protected activity under Title VII (and, by
extension, § 1981) is not so constrained.
DeMasters, 796 F.3d at 422. Under the FLSA,
protected activity is limited to those instances where an
individual has “filed any complaint or instituted or
caused to be instituted any proceeding under or related to
this chapter, or has testified or is about to testify in any
such proceeding, or has served or is about to serve on an
industry committee.” 29 U.S.C. § 215(a)(3). By
contrast, Title VII protects “any . . .
employees” who “oppos[e] any practice” made
unlawful under the statute, “or [who have]
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing”
under the statute. 42 U.S.C. § 2000e-3 (emphasis added).
The Supreme Court has therefore interpreted Title VII to
provide “broad protection from retaliation.”
Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 67 (2006). Thus, whereas the FLSA protects only a
narrow set of formal actions that an employee would seem to
take only outside of his or her prescribed duties, Title VII
contains no such limits, explicitly protecting any action of
opposition, and specifically distinguishing the more formal
actions listed in the FLSA's anti-retaliation provision.
Here, of course, Armour's complaint arises under §
1981. But, as noted above, claims under Title VII and §
1981 are treated under the same framework, Baines,
863 F.3d at 661, and Defendants have offered no argument for
why § 1981 claims should be treated differently.
there is no basis for the manager rule in Title VII's
text, its proponents have resorted to a policy concern:
namely, that permitting human resources personnel or other
such employees to file retaliation claims might open
employers to suit any time they terminate such an employee.
See Hagan, 529 F.3d at 628. But the manager rule
solves this problem by creating an arguably larger one. As
the Fourth Circuit has aptly explained: “under [the
manager rule], the categories of employees best able to
assist employees with discrimination claims- the personnel
that make up [employee assistance programs], [human
resources], and legal departments-would receive no protection
from Title VII if they oppose discrimination targeted at the
employees they are duty-bound to protect.”
DeMasters, 796 F.3d at 423. In any case, surely the
exceedingly broad language in Title VII that protects
“any” employees who oppose “any
practice” made unlawful by the statute evinces
Congress's intent to favor broad protections at the risk
of increased litigation, and it, rather than the judiciary,
is better suited to revisit this policy calculus if
necessary. See Chapman, 151 F.Supp.3d at 900.
were not enough, the manager rule, at least as posited in the
FLSA context, would be inordinately difficult to apply in
practice in cases involving claims under Title VII and §
1981, which protect a much wider array of employee conduct.
Under the Tenth Circuit's articulation of the rule, a
court must discern when an employee has “crossed the
line from being an employee merely performing her job . . .
to an employee lodging a personal complaint.”
McKenzie, 94 F.3d at 1486. It is not hard to imagine
instances in which this line will be difficult to draw. This
case is no exception. If a CEO of a company goes to the
company president and says, “I have serious
reservations about our discriminatory hiring practices,
” as Armour claims to have done here, see
Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 12, is the CEO merely
performing her job, or lodging a personal complaint? Courts