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Armour v. Homer Tree Services, Inc.

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

October 24, 2017

ELIZABETH ARMOUR and JULIE CASTRO, Plaintiffs,
v.
HOMER TREE SERVICES, INC., HOMER TREE CARE, INC., HOMER INDUSTRIES, LLC, HOMER MANAGEMENT, LLC, and RONALD REPOSH, individually, Defendants. HOMER MANAGEMENT, LLC, and HOMER TREE SERVICE, INC., Counterclaimants,
v.
ELIZABETH ARMOUR, Counterdefendant.

          MEMORANDUM OPINION AND ORDER

          John Z. Lee, United States District Judge.

         Plaintiffs Elizabeth Armour (“Armour”) and Julie Castro (“Castro”) bring this action against Defendants Homer Tree Service, Inc., [1] 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.

         Defendants 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 [146] [149] are granted in part and denied in part.

         Background[2]

         I. Plaintiffs' Hiring and the Nature of Their Employment

         Plaintiffs 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.

         Upon 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) ¶ 39.

         Homer 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.[3] 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.[4]

         Armour 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.

         The 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;[5] 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. ¶¶ 9-10.

         II. Events Occurring During Plaintiffs' Employment

         According to Plaintiffs, a number of unlawful practices occurred at Homer during their terms of employment.[6] Plaintiffs' objection to and refusal to participate in these practices preceded their termination.

         A. Reposh's Alleged Discriminatory Hiring Practices

         First, 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. ¶ 10.[7] 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.[8]

         Plaintiffs 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. ¶¶ 31-32, 56.

         Several 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.[9]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.[10] 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[11]; 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.

         B. Reposh's Purported Instructions to Terminate Employees Invoking Workers' Compensation

         At some 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.[12] 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.

         C. Reposh's Purported Directive to Terminate an Employee Who Complained About a Ventilation Issue

         Armour 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.[13] 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.

         III. Plaintiffs' Termination

         As 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, [14] 75; see Castro Dep. at 222:5-21, 223:7-11.

         With 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, [15] 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.[16]

         Armour's 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 7.

         Legal Standard

         “The 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).

         Analysis

         Plaintiffs' 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 Count IV.

         I. Armour

         A. Retaliation in Violation of 42 U.S.C. § 1981

         In 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)).

         In 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)).[17]

         1. Homer Tree Care and Homer Industries as Joint Employers

         Defendants 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[18]-“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.

         Here, 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.[19] 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 assessing control.[20]

         What is 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.[21] Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 6.

         In sum, 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.

         3. Protected Activity

         Next, 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.” Id.

         According 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.

         4. Causation and Pretext

         Defendants 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.[22] 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.

         In 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.

         Defendants, 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.[23] 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.[24] 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).

         Ultimately, 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.

         5. The Manager Rule

         Defendants 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.

         The 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 628.

         Two 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.

         First, 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.

         Because 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.

         If this 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. ΒΆ 12, is the CEO merely performing her job, or lodging a personal complaint? Courts ...


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