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Quevedo v. Top-Line Furniture Warehouse Corp.

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

March 27, 2018




         Plaintiff 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). [1]. Defendant moved for summary judgment. [26]. For the reasons explained below, Defendant's motion is granted in part and denied in part.

         I. Background

         A. Plaintiff's Employment

         Plaintiff is a Hispanic woman of Mexican origin. See DSOF ¶¶ 8-9; [28] at 4.[1] 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.; [37] at 13. Her current resume states that she has “[e]xperience with Microsoft Office, Outlook, Netsuite, Blackline and People Soft.” [39-5] at 3.

         Plaintiff 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 ¶ 8.

         Plaintiff testified that while she held the operations supervisor position, Defendant treated her less favorably than Chan, then the advertising supervisor. [37] 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 [37] 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.

         Plaintiff also testified that, before she joined the accounting department, Defendant frequently moved her through different positions, making her fill in for recently terminated employees. [37] 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. [37] at 14-15.

         In 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.

         When 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. [37] at 13. Wuang approved her request. Id.; [29-5] at 6.

         Initially, 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. [37] 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.

         In June 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.

         Plaintiff claims that Castro refused to let her attend a physical therapy session on one unspecified occasion. R. DSOF ¶ 40; [37] 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; [37] 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.

         After her car accident, Plaintiff sought various accommodations from Castro.[2]See [37] 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. [37] 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. [37] at 22; DSOF ¶ 41. Castro never interfered with Plaintiff's use of this method. [37] at 22; DSOF ¶ 41. Plaintiff does not indicate when or how long she had to work this way. See [37] at 21-22. Plaintiff requested no further accommodations. See R. DSOF ¶ 44.[3]

         Throughout 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).

         In mid- 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.

         In 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; [37] 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.

         Wuang 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 [36] 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.

         In 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; [36] at 11-12. Defendant states that Plaintiff refused to use Slad's method. DSOF ¶ 22.

         Plaintiff 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 [37] 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; [36] at 13. They describe Plaintiff's reluctance to change her method of entering payments. See [36-2] at 17-18; [36] 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.

         Throughout 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; [36] at 14. Plaintiff also failed to timely complete accounts receivable reports, despite Castro's reminders. [36] 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 [36] at 14; [37] at 22.

         Castro also testified that Plaintiff's repeated absences caused the accounting department's work to pile up. [36] 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 accident. Id.

         In mid-December Plaintiff received her annual performance review. See [39-3] at 2; [36] at 8. Liaw completed her evaluation. See [39-3] at 2. Although Castro recalled completing an evaluation for Plaintiff around the same time, [36] at 8-9, Defendant found no record of any such document, as stated in open court, see [21] at 5; [24]. 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 [38] 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 “uncooperative.” Id.

         The 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. [38] 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.

         On 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. [38] 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; [36] at 32-33. When Defendant fired Plaintiff, she earned $21.32 per hour. DSOF ¶ 6.

         B. Accrued Leave

         From 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.[4] 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.

         From 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.

         When Defendant adopted its new leave policy in July 2015, Plaintiff became entitled to 14 days' paid vacation under the terms of the 2015 Handbook.[5] 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 109.

         C. Additional Alleged Discrimination

         Plaintiff 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.

         In his 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 8-9.

         Plaintiff 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 [37] 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. [37] at 17. Finally, Plaintiff testified that Defendant permitted Chan, Ong, and Sullivan to work from home. R. DSOF ¶ 72; [37] 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. DSOF; [37].

         Plaintiff 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 Defendant's employees.

         Plaintiff 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].

         Plaintiff 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 [36] 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 [36] 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.

         Defendant fired Slad in May 2016 for absenteeism. DSOF ¶ 21. Hernandez resigned in June 2016. Id. ¶ 12.[6] Defendant hired Vongphakdy (who is a Southeast Asian woman) in April 2016 and Jingshu Wu (who is Asian)[7] 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 [36] at 7; [36-3] at 7.

         Plaintiff 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. [37] 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, [38] at 22. Plaintiff's own testimony describes Alex Aviles, a Hispanic man, being transferred in the same way as Plaintiff. [37] at 14.

         Finally, Plaintiff notes that Defendant settled a discrimination claim brought by a former female Hispanic employee in 2012. PSAF ¶ 35; R. PSAF ¶ 35.

         D. ...

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