United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE.
Diana Quevedo sued her former employer, Defendant Top-Line
Furniture Warehouse Corporation, for discrimination under
Title VII, 42 U.S.C. § 2000(e) et seq., and 42
U.S.C. § 1981 (Counts I and II); violations of the
Americans with Disabilities Act, 42 U.S.C. § 12101
et seq. (Count III); violations of the Equal Pay
Act, 29 U.S.C. § 209(d) (Count IV); violations of the
Illinois Human Rights Act, 775 ILCS 5/2-101 et seq.
(Count V); and violations of the Illinois Wage Payment
Collection Act, 820 ILCS 115/1 et seq. (Count VI).
. Defendant moved for summary judgment. . For the
reasons explained below, Defendant's motion is granted in
part and denied in part.
is a Hispanic woman of Mexican origin. See DSOF
¶¶ 8-9;  at 4. She holds Bachelor of Science and
Master's degrees in Business Administration from DeVry
University; she obtained her Bachelor's with a
concentration in accounting. See [39-5] at 2. Before
working for Defendant, Plaintiff worked as a machine operator
and as a banquet server. See Id. at 3. Plaintiff
continued her catering work part-time after Defendant hired
her in 2010. See id.;  at 13. Her current resume
states that she has “[e]xperience with Microsoft
Office, Outlook, Netsuite, Blackline and People Soft.”
[39-5] at 3.
worked for Defendant from June 2010 to December 2015 in a
variety of positions. DSOF ¶ 4. Plaintiff started as a
customer service representative, reporting to Joann Chan.
[36-3] at 8. Plaintiff then became a customer service
operations supervisor in 2013 before transferring to
Defendant's shipping and receiving department in early
2015. Id. In both of these positions, she reported
to Max Liaw, Defendant's office manager. Id.;
DSOF ¶ 8. In April 2015, Plaintiff transferred to
Defendant's accounting department, under the supervision
of Adriana Castro, who reported to Liaw. [36-3] at 8; DSOF
testified that while she held the operations supervisor
position, Defendant treated her less favorably than Chan,
then the advertising supervisor.  at 15. Plaintiff claims
that Liaw and Chan often overruled her decisions, while Liaw
never overruled Chan. See id. Plaintiff also
testified that Defendant gave Chan opportunities to travel to
“expos” that Defendant denied to Plaintiff.
Id. at 16. Finally, Plaintiff claims that Defendant
paid Chan more than her, even though Chan's position as
advertising supervisor was “pretty much” the same
position as Plaintiff's. Id. at 15, 18.
Chan's employment is discussed further below; as to pay,
Chan earned more than Plaintiff at various times, but the
record contains only raw salary data and does not clearly
indicate responsibility, performance, or experience levels.
See [38-4]. The record also shows that when
Defendant hired Plaintiff, Chan held a more senior position.
See [36-3] at 8. Plaintiff's testimony as to
Chan's pay is based upon a statement by Liaw that, as
operations supervisor, Plaintiff could not earn more
than Chan. See  at 18. Together with
Defendant's president, James Wuang, Liaw set
Defendant's pay rates. PSAF ¶ 9; R. PSAF ¶ 9.
Wuang is Taiwanese and Liaw is of Chinese-Malaysian descent.
R. PSAF ¶ 1.
also testified that, before she joined the accounting
department, Defendant frequently moved her through different
positions, making her fill in for recently terminated
employees.  at 13. Plaintiff appears to refer
specifically to her work in shipping and receiving. See
id.; PSAF ¶ 1. She testified that only she and a
male Hispanic employee had to fill gaps in this way, and that
during this time she lacked a titled position.  at 14-15.
April 2015, Plaintiff joined the accounting department. DSOF
¶ 5; [36-3] at 8. There, she applied customer payments
to their accounts, issued debit and credit memos, entered
invoices in Defendant's accounting system, handled vendor
disputes, resolved accounting discrepancies and various
payment issues, and prepared and submitted accounts
receivable reports and monthly commissions reports. DSOF
¶ 5; PSAF ¶ 33; [36-1]. Fulfilling these duties
required Plaintiff to use Microsoft Excel and NetSuite
accounting software. See PSAF ¶ 33.
Plaintiff moved to accounting, she asked Wuang if she could
start at 7:00 a.m. rather than the usual 8:30 a.m. and end
her day early. [29-5] at 6; DSOF ¶ 33. Plaintiff
explained that she wanted this schedule to accommodate a
part-time job. [29-5] at 6. At the time, Plaintiff still
worked part-time catering jobs.  at 13. Wuang approved
her request. Id.; [29-5] at 6.
the accounting department consisted of three Hispanic women:
Plaintiff, her coworker Erika Hernandez, and their
supervisor, Adriana Castro. DSOF ¶¶ 8, 9. Castro is
Mexican, like Plaintiff.  at 18. Frank Slad, who joined
accounting in November 2015, was the only white male in the
department during the relevant period. See DSOF
¶¶ 10, 13; PSAF ¶ 16; R. PSAF ¶ 17;
[36-3] at 7.
2015, Plaintiff suffered a non-work-related car accident.
DSOF ¶ 34. Plaintiff's injuries included a bruised
elbow, whiplash, and a herniation in two lumbar discs.
Id. ¶ 35; [37-5] at 10. From June through
August, Plaintiff received treatment from Dr. Jacqueline
Martinez, a chiropractor, as well as from a pain management
specialist. DSOF ¶ 35; [37-5] at 10-11.
claims that Castro refused to let her attend a physical
therapy session on one unspecified occasion. R. DSOF ¶
40;  at 21. Plaintiff admits, however, that on that
occasion she still attended her session, and in fact, she
never missed a doctor's appointment. See R. DSOF
¶ 39;  at 21. Martinez testified that
Plaintiff's condition improved in July, and Martinez
released her from treatment on August 31. DSOF ¶¶
36-38; [37-5] at 5-6, 8. By then, Plaintiff's neck and
shoulder injuries had resolved and her elbow and back
injuries had stabilized, meaning that although disc
herniation is a permanent condition, Plaintiff's symptoms
had abated and further treatment was not required at that
time. DSOF ¶ 38; [37-5] at 6, 10-11.
her car accident, Plaintiff sought various accommodations
from Castro.See  at 21-22. Specifically,
she requested a different chair and leave to attend her
doctor's appointments; Castro granted both requests.
See R. DSOF ¶ 44; DSOF ¶¶ 42-44.
Plaintiff also discussed her injuries with Castro, saying
that she would need “a little bit more time” to
do her job because of problems with her left hand.  at
21; DSOF ¶ 41. Specifically, Plaintiff says that she
could not use her left hand to flip through hard copies of
data, so she had to use her mouse to switch windows on her
computer monitor, which took longer.  at 22; DSOF ¶
41. Castro never interfered with Plaintiff's use of this
method.  at 22; DSOF ¶ 41. Plaintiff does not
indicate when or how long she had to work this way.
See  at 21-22. Plaintiff requested no further
accommodations. See R. DSOF ¶ 44.
her tenure in accounting, Plaintiff normally texted Castro
about her absences or delayed start times. DSOF ¶ 46.
Plaintiff's text messages show that she often texted
Castro on the day that she planned to take off, sometimes
waiting until after her normal start time. See id.
¶¶ 47-54, 56, 58, 59, 60, 61, 62. One of these
requests predates Plaintiff's car accident. See
id. ¶ 47; [29-3] at 2. Several requests coincide
with Plaintiff's treatment period, but not all relate to
her injuries. See DSOF ¶¶ 51, 53
(“I'm running late today. My flight just leaving
from Colorado.”); (“I have to take my Dad to get
some tests in the morning.”). In September and
October-following Plaintiff's release from
treatment-Plaintiff requested additional days off, most of
which did not relate to her condition. See Id.
¶¶ 56, 58, 59 (missing work to babysit a
friend's grandchildren; because of a head cold; because
of a sore throat).
or late September, Castro warned Plaintiff that even though
she knew some of Plaintiff's absences related to her
health, “we have to not let our personal life interfere
with our job.” DSOF ¶ 57; [29-1] at 10. Castro
also asked Plaintiff to send absence notices by email rather
than text. DSOF ¶ 57. On September 24, Plaintiff
acknowledged-by text-that Castro preferred that she report
lateness and absences by email, while notifying Castro that
she would be late the next day. See [29-3] at 17.
Despite Castro's instructions, Plaintiff continued to
report lateness and absences by text. See id. at
18-22; [29-4] at 1-3.
early October, Defendant either offered or ordered Plaintiff
to transfer from accounting to the position of parts
supervisor in Defendant's warehouse. See R. DSOF
¶ 29;  at 47. Plaintiff wrote to Wuang on October
12, saying that she had considered the new job and had
decided to decline it. [29-5] at 7-8. She told Wuang that her
current position allowed her to keep her second, part-time
job, and that even if she had not yet fully learned her
duties in accounting, she hoped to have more time to do so.
Id. at 8. Wuang responded that transfer decisions
turned on what was in Top-Line's best interest, and where
employees could best meet their potential. Id. at 7.
He indicated that Plaintiff's schedule could be adjusted
for her second job, but that the transfer was ultimately
Defendant's decision. Id. He said he would
inform Plaintiff of her transfer date. Id. But
Defendant never transferred Plaintiff, who remained in
accounting until her termination. See DSOF
¶¶ 5, 29.
testified that the potential transfer represented a
promotion, but indicated that he also offered it in response
to problems between Plaintiff and Castro, stating: “I
just listen because Adriana [Castro] work with me more than
15 years.” [37-1] at 10-11. The transfer offer-or
order-occurred around the same time as an October management
meeting, during which Castro reported on her staff's
performance. See  at 8. Castro does not recall
the meeting exactly, but believes that she mentioned problems
with Plaintiff's performance, including difficulty
getting along with her coworkers and lack of cooperation.
Id. at 24. On a handful of other occasions, Castro
spoke to Liaw about Plaintiff's negative attitude and
described Plaintiff as “uncooperative.”
Id. at 17-18. Castro also considered the proposed
transfer a promotion since it was to a supervisory position.
Id. at 24.
November, Defendant hired Frank Slad for the accounting
department. DSOF ¶ 13. The parties dispute Slad's
exact role. They agree, however, that Slad reported to Liaw
rather than to Castro, and on occasion to Felix Wuang,
Defendant's vice president for finance and accounting. R.
DSOF ¶ 20; PSAF ¶ 1. The parties also agree that
Defendant tasked Slad with creating a more efficient method
of processing customer payments. R. DSOF ¶ 15;  at
11-12. Defendant states that Plaintiff refused to use
Slad's method. DSOF ¶ 22.
contends that Slad did not finalize his new method until
after her termination. See R. DSOF ¶ 17. In her
deposition, Plaintiff said that Slad did not
“introduce” her to a new method of applying
payments but that she was not “surprised” that
Slad said that he did. See  at 23. For his part,
Slad testified that he spent November and December developing
his system, which involved creating new Excel templates, and
completed it by the end of 2015. [36-2] at 20, 21. But Slad
and Castro also recount that before the templates were
complete, Slad devised other, interim efficiencies for
Defendant's payment process, mainly using more complex
Excel formulas. See id. at 17;  at 13. They
describe Plaintiff's reluctance to change her method of
entering payments. See [36-2] at 17-18;  at
13-14, 15. Slad stated that he showed Plaintiff these
procedures but that she was not “engaged” and did
not “want to actually do it that way, ” which
slowed down her work. [36-2] at 18. Plaintiff says that
Slad's methods took her the same amount of time as her
original method, see R. DSOF ¶ 23, and fails to
otherwise address Defendant's contention that she refused
to use Slad's interim procedures.
the fall of 2015, Defendant contends that Plaintiff's
performance suffered. Castro testified that, in addition to
Plaintiff's interpersonal difficulties and reluctance to
adjust her accounting procedures, she was untimely in
“following up with customers on disputes” or
unpaid invoices. DSOF ¶ 24;  at 14. Plaintiff also
failed to timely complete accounts receivable reports,
despite Castro's reminders.  at 14. Plaintiff
contends that her injuries caused her untimeliness. R. DSOF
¶ 24. The record indicates that Plaintiff did not
affirmatively seek additional time to complete tasks but
rather asked for extensions when Castro followed up with her
on delayed items. See  at 14;  at 22.
also testified that Plaintiff's repeated absences caused
the accounting department's work to pile up.  at
25-26. Plaintiff contends that other factors “caused
inefficiencies” in the department, including
“issues with Defendant's computers and
software.” R. DSOF ¶ 45. In addition to the
absences already discussed, Plaintiff requested a sick day in
November because her back hurt. DSOF ¶ 60. On December
8, Plaintiff texted Castro: “I don't feel good. I
will take a day off.” Id. ¶ 61. Plaintiff
also took a vacation from December 17 to December 23; on
December 16, she wrote to Wuang requesting a twelve-day
vacation in January. Id. ¶¶ 63-64; [29-5]
at 4. In total, between June 21, 2015, and December 31, 2015,
Plaintiff missed 13 days of work and arrived late on 7 days.
DSOF ¶ 65. Four of Plaintiff's absences comprised
her vacation in late December; five were for personal
reasons; and four related to her injuries from the car
mid-December Plaintiff received her annual performance
review. See [39-3] at 2;  at 8. Liaw completed
her evaluation. See [39-3] at 2. Although Castro
recalled completing an evaluation for Plaintiff around the
same time,  at 8-9, Defendant found no record of any such
document, as stated in open court, see  at 5;
. Liaw believes he completed the evaluation because
Plaintiff-having transferred into accounting in April-had not
worked for Castro during the full year under review.
See  at 17-18. Liaw incorporated feedback from
Slad and Castro into his review, specifically with respect to
Plaintiff's refusal to adopt Slad's efficiency
measures and her poor attendance. Id. at 19, 20. He
noted that an employee's request for vacation when their
department is behind on a project negatively affects their
attendance score. Id. at 20. The evaluation rated
Plaintiff at 50% or less for her quality of work, quantity of
work, work habits, and communication, and at 60% for
attendance. [39-3] at 2. The review states that
Plaintiff's performance had declined, that her attendance
was below standard, and that she was
parties agree that before 2015, Plaintiff received
merit-based raises and a discretionary bonus. See
PSAF ¶¶ 20-21; [27-1] at 17. But she also received
prior critical reviews. When Plaintiff worked under Chan in
customer service, one review noted that Plaintiff needed
“to be more positive.” See [29-9] at
168-72; [38-7] at 21- 22. The same review gave her low marks
in work habits and communication. [38-7] at 20-21.
Plaintiff's 2014 review does not appear in the record,
but Liaw testified that he completed that review as her
superior for the operations supervisor job.  at 24. That
review criticized Plaintiff's lack of leadership, poor
attendance, and failure to complete weekly reports, and noted
that Defendant received a complaint from a “major
client” about Plaintiff's work. Id.
December 31, 2015, Defendant fired Plaintiff. [37-1] at 2.
Liaw signed her termination letter, which stated that
Defendant had decided “to eliminate the position you
presently hold.” Id. Liaw drafted it using a
template he found online.  at 46. Liaw testified that
eliminating Plaintiff's position meant eliminating a
position for someone with Plaintiff's skills, since
Slad's new methods made her exact role unnecessary.
Id. at 22. Defendant does not maintain standardized
job descriptions. See id. The parties agree that
after Plaintiff's termination, Slad assumed some of her
tasks, though Defendant states that he did so using his
improved procedures. See R. PSAF ¶ 15.
Defendant contends that Castro, Hernandez, and others also
absorbed some of Plaintiff's duties. [36-3] at 7;  at
32-33. When Defendant fired Plaintiff, she earned $21.32 per
hour. DSOF ¶ 6.
October 2013 to July 13, 2015, Defendant's applicable
employee handbook (the 2013 Handbook) awarded employees five
days of vacation after one year of employment. See
DSOF ¶ 31; [27-1] at 1, 6. Beginning July 13, 2015,
Defendant's revised handbook (the 2015 Handbook) granted
longer serving employees additional vacation time.
See DSOF ¶ 32; [27-1] at 28, 31, 55-56.
Employees with 5 years of service-like Plaintiff-received 14
days of paid vacation, 2 days of personal leave, and 3 days
of sick leave. DSOF ¶ 32. Plaintiff started with
Defendant on June 21, 2010; thus, she reached five years'
employment on June 21, 2015. See Id. ¶ 4.
Accordingly, by July 2015, Plaintiff was entitled to 14 days
paid vacation, 2 days of personal leave, and 3 days of sick
leave. See Id. ¶ 32.
June 2014 to June 2015, Plaintiff used eight vacation days
and three sick days. Id. ¶ 66; R. DSOF ¶
66. The eight vacation days represented the five per year she
was entitled to under the 2013 Handbook, plus three carried
over from the 2013-2014 anniversary year. DSOF ¶ 66. As
such, according to Defendant, Plaintiff used up her leave for
the period preceding June 2015. Id.
Defendant adopted its new leave policy in July 2015,
Plaintiff became entitled to 14 days' paid vacation under
the terms of the 2015 Handbook. See DSOF ¶¶ 4,
32; [27-1] at 56. The parties agree that, between June 21 and
December 31, 2015, Plaintiff used eight days of vacation, two
personal days, and three sick days. See R. DSOF
¶ 67. Thus, by the time of her termination, Plaintiff
had used all her personal and sick days, but retained six
days of unused vacation. See id.; [27-1] at 55-56.
Defendant says that it paid out these six days in
Plaintiff's post-termination checks. DSOF ¶ 68;
[27-1] at 2. The record does not contain Plaintiff's
post-termination checks. But Plaintiff's final earnings
statement shows that Defendant paid her for 10 unused
vacation days in January 2016. See R. DSOF ¶
68; [38-2]. Defendant does not explain why it paid Plaintiff
for 10 days' unused vacation when its records
consistently show that Plaintiff used 8 of the 14 she was
owed after June 2015. See [27-1] at 64-65; [29-9] at
Additional Alleged Discrimination
alleges generally that Defendant treated Asian employees more
favorably than non-Asian employees, citing her own testimony
as well as that of Slad and Hernandez, Plaintiff's
coworkers in accounting. See PSAF ¶ 37.
deposition, Slad stated generally that he believed Defendant
treated individuals “of Chinese origin” more
favorably than others. [36-2] at 9. Hernandez testified that
white and Asian employees-but not Hispanic employees-took
breaks without being reprimanded. See [36-4] at 7.
But Hernandez's examples consisted of employees outside
the accounting department, and the reprimands came from Maria
Mendoza, a senior Top-Line employee who is Hispanic.
Id. Hernandez also recanted an earlier statement
alleging that Defendant gave non-Hispanic employees more
favorable leave policies. See id. at 8. Finally,
Hernandez testified that non-Hispanic employees were allowed
flexible start times; however, she also stated that Hispanic
employees worked flexible schedules with Defendant's
prior approval, and she did not know if the non-Hispanic
employees also received such approval. See id. at
testified that non-Hispanic employees received more flexible
hours, but acknowledged that the examples she cited-Natalie
Ong, Stephanie Sullivan, and Liaw-held managerial positions
outside the accounting department. See  at 17;
R. DSOF ¶ 72. Plaintiff further testified that Defendant
prioritized granting vacation to Chan and Castro over her,
and stated that Defendant once asked her to return to work
after being on leave for surgery because Chan was going on
vacation.  at 17. Finally, Plaintiff testified that
Defendant permitted Chan, Ong, and Sullivan to work from
home. R. DSOF ¶ 72;  at 18. Plaintiff does not claim
that she or any other Hispanic employee asked to work from
home and had their request denied. See generally R.
states that Defendant has fired at least 37 employees since
her termination, of whom at least 31 have Hispanic surnames.
PSAF ¶ 13. In support, Plaintiff offers two undated
lists of individuals who left Defendant's employ between
December 2015 and August 2016. [39-2] at 2-3. Of these
employees, three are listed as having resigned; three failed
to show up for work; and two entries give no indication as to
whether the employee resigned or was terminated. See
id. Of the 29 employees clearly listed as
“terminated, ” 24 have names that appear to be of
Hispanic origin. See id. Neither party's
statement of facts contains information on Defendant's
total number of employees, the demographics of
Defendant's workforce, or the rate of turnover among
also alleges that Defendant paid Asian employees more than
non-Asian employees. PSAF ¶¶ 10, 11, 18. In
support, Plaintiff cites a summary of pay histories for
Castro, Hernandez, Chan, Slad, Plaintiff, and Cecilia
Baldo-Vongphakdy, who joined Defendant after Plaintiff's
termination. See id.; [38-4]. The summary shows that
these individuals earned different rates over the course of
their employment, in different positions and different levels
of seniority. See [38-4].
next contends that upon her termination, Defendant filled her
role with white and Asian employees. See PSAF
¶¶ 15-16. When Plaintiff was terminated, Slad,
Hernandez, and Castro remained in the accounting department.
See  at 32; [36-2] at 16; DSOF ¶¶
8-10. Castro testified that Plaintiff's various tasks
were distributed among herself, Slad, Hernandez, Chan, and
Mendoza. See  at 32-33; [36-1] at 2. Slad and
Hernandez both testified that Slad “took over”
Plaintiff's role following her termination. [36-2] at 16;
[36-4] at 13.
fired Slad in May 2016 for absenteeism. DSOF ¶ 21.
Hernandez resigned in June 2016. Id. ¶
Defendant hired Vongphakdy (who is a Southeast Asian woman)
in April 2016 and Jingshu Wu (who is Asian) in June 2016.
See PSAF ¶ 16; R. PSAF ¶ 17; [36-3] at 7.
At some point Defendant also briefly hired Nadia Hurma (a
non-Asian woman) through a temp agency, though she did not
remain with Defendant for very long. See PSAF ¶
16; R. PSAF ¶ 17. Defendant paid both Wu and Vongphakdy
less than it paid Plaintiff while she worked in accounting.
See PSAF ¶ 17; DSOF ¶ 6; [38-4]. Defendant
stated that some of Plaintiff's other duties are also now
handled by Pam Sheldon, a white woman whom Defendant hired as
an accounting supervisor. See  at 7; [36-3] at
asserts that various other acts by Defendant demonstrate
gender discrimination. See R. DSOF ¶ 71. First,
she testified that Defendant offered an employee named
Alberto Landeros a bonus when he left Defendant's employ
in 2015 but never offered her one upon her termination. 
at 26. Next, Plaintiff contends that Defendant gave written
performance reviews only to female employees. R. DSOF ¶
71. But Plaintiff bases this upon testimony from Wuang, in
which he merely states that Liaw and Alex Wuang received
verbal evaluations; that Slad did not work for Defendant long
enough to receive an evaluation; and that otherwise all staff
in Defendant's office received a written review.
See [37-3] at 12-13. Finally, Plaintiff claims that
Defendant did not transfer male employees as frequently as it
transferred her. R. DSOF ¶ 71. She bases this upon
Wuang's testimony, who states only that the number of
transfers Plaintiff received was unusual, [37-3] at 11, and
Liaw's similar testimony,  at 22. Plaintiff's own
testimony describes Alex Aviles, a Hispanic man, being
transferred in the same way as Plaintiff.  at 14.
Plaintiff notes that Defendant settled a discrimination claim
brought by a former female Hispanic employee in 2012. PSAF
¶ 35; R. PSAF ¶ 35.