John Robert Blakey, United States District Judge
This matter involves an employment dispute between Plaintiff and her former employer — the City of Chicago Board of Education (the "Board"). Plaintiff is an African-American female who has worked for the Defendant since 1989. In 2003, she began working at Sauganash Elementary School ("Sauganash") as a custodian. Plaintiff was involved in a number of disputes during her time at Sauganash, some of which resulted in disciplinary action against her. Plaintiff claims that her discipline was motivated by several different types of discrimination, and thus brings six causes of action: (I) disability discrimination under the Americans with Disabilities Act ("ADA"); (II) ADA retaliation; (III) Title VII race discrimination; (IV) race discrimination under 42 U.S.C. § 1981; (V) Title VII gender discrimination; and (VI) Title VII retaliation. Defendant filed a motion for summary judgment as to all counts on October 27, 2014 [38]. As explained below, that motion is granted in part and denied in part.
Since 2004, employment disputes between Plaintiff and Defendant have resulted in four federal lawsuits in this District, with this being the most recent. The prior lawsuits will be referred to as Johnson I (04 C 6899), Johnson II (05 C 4294), and Johnson III (07 C 1282). Plaintiff failed to prosecute Johnson I and Johnson III, and those cases were dismissed on November 12, 2004 and September 18, 2007 respectively. Id. at ¶¶ 33, 39.
With regard to Johnson II, Plaintiff began that proceeding by filing a charge with the EEOC on March 31, 2005. Id. at ¶ 34. The charge alleged discrimination by the Board based on race and sex, and focused on unequal terms and conditions of employment. Id. at ¶ 34. On April 28, 2005, the EEOC issued Plaintiff a right-to-sue letter based on the charge, and, on June 26, 2005, Plaintiff sued the Board. Id. at ¶ 36. The Complaint alleged discrimination based on gender, race, disability (failure to accommodate) and retaliation; and requested,
Defendant originally hired Plaintiff in 1989. DSOF at ¶ 8. In 1992, she began working as a custodian for Defendant. Id. On or about May 4, 2003, Plaintiff took a job at Sauganash as a custodian. Id. at ¶ 9. Christine Munns ("Munns") was the principal of Sauganash at that time, and has continued in that position through the present. Id. at ¶ 10. While Plaintiff was at Sauganash, the Board contracted some of its custodial work to private companies. Id. at ¶ 12. Thus, some of Plaintiff's co-workers included "privatized custodians." Id.
The central issue in this case is Plaintiff's work at Sauganash from 2007 to 2008. Plaintiff was required to work the "late shift" at the school such that her regular hours on student attendance days were from 11:00 a.m. to 7:30 p.m. DSOF Ex. 35. Plaintiff's primary responsibility was to clean classrooms and student bathrooms in two mobile units. DSOF ¶ 64. Principal Munns believed that this cleaning was best done after school, when the students had left for the day. Id. Thus, Plaintiff's work hours on student attendance days had to run until 7:30 p.m. Id.
Plaintiff also was responsible for securing the buildings at the end of the day (i.e., shutting off the lights, closing the windows and setting the main building's alarm). DSOF ¶ 65. The Defendant entrusted Plaintiff, and not the privatized custodians, with these tasks because she was a Board employee. Id. The Board's Law Department had advised Principal Munns that a Board employee must be the individual to have the security code to set the building alarm at the end of the day unless that was not an option because the entire custodial staff was privatized. DSOF ¶ 66. Consequently, Plaintiff was required to secure the building because the other custodians at Sauganash were privatized custodians. Id.
Plaintiff did not like working the late shift, as she felt it unfairly left her to finish work left by the early shift custodians. Ans. to DSOF ¶ 64; P Br. at 15. These other custodians included Felicia Mitchell and Jennifer Holloway, two African-American females with whom Plaintiff worked at various times during her tenure at Sauganash. Munn Aff. at ¶¶ 5-6. Plaintiff repeatedly brought her complaints regarding scheduling to Principal Munns, who refused to change the shift assignments. DSOF ¶ 56.
Plaintiff claims that she suffered from depression, anxiety, post-traumatic stress disorder and migraines during her time at Sauganash. DSOF ¶ 67. According to Plaintiff, these disorders limited her ability to: (1) work her assigned shift, PSOF ¶¶ 1-4; P Br. at 7-8, and (2) complete a variety of routine life activities — such as washing, eating, talking and sleeping. Id. Plaintiff also claims that Munns was aware of Plaintiff's disorders. PSOF ¶ 5. In spite of the aforementioned disorders, Plaintiff contends that she was consistently able to perform not only her duties but those of others. DSOF ¶ 68. These disorders, along with Plaintiff's race, sex, and prior legal actions against the Defendant, purportedly caused Defendant to suspend Plaintiff twice in 2008.
On April 17, 2008, Plaintiff was suspended for 30 days due to an incident of misconduct in Principal Munns' office. DSOF ¶ 61. In the incident, Plaintiff came to Munns' office complaining that she was sick and proceeded to lay down on the floor. Id. at ¶ 62. Munns tried to question Plaintiff about her behavior, but Plaintiff did not respond. Id. Munns also asked Plaintiff who would fulfill her duties if she left work. Johnson Dep. Tr. at 202:6-14. Plaintiff claims that she was going in and out of consciousness during this incident, and that she told Munns not to call an ambulance because she couldn't afford one. Johnson Dep. p. 204:3-20. Nonetheless, an ambulance was called to assist Plaintiff. Id. When the ambulance arrived but before the crew could get to the office, Plaintiff walked out and left the school without saying anything. Id.
After this incident, Plaintiff was given a notice of disciplinary action in which she was suspended 30 days for inattention to duty including, but not limited to, "sleeping on duty, or loitering in the site" and incompetently or inefficiently "performing one's duties." Id. at ¶ 61. Plaintiff's Union later grieved the suspension and the grievance went to arbitration. Id. at ¶ 63. The arbitrator found that Plaintiff had fallen asleep on the job in violation of Section 2-6 of the Board's discipline policy. Id. However, the arbitrator ultimately ruled that the 30 day suspension was not warranted and sustained the grievance. Id.
On August 12, 2008, Plaintiff filed a Charge with the EEOC ("Charge 564") alleging discrimination based on race, sex, disability and retaliation. Id. at ¶ 40. In particular, Plaintiff claimed that she requested a reasonable accommodation and it was denied. Id. Plaintiff also claimed that she was subjected to unequal terms and conditions of employment. Id. On May 16, 2013, the EEOC issued Plaintiff a right-to-sue letter based on Charge 564. Id. at ¶ 41. Plaintiff then filed the instant lawsuit on August 7, 2013. [1]. Plaintiff continued working as a custodian at Sauganash until September 2012, at which time she was reassigned to Chappell School by the Board's Department of Operations. DSOF ¶ 22. She remained working for the Board, even while this lawsuit was ongoing, and eventually resigned in November 2013. DSOF ¶ 26.
Summary judgment is appropriate 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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.2014). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Further, summary judgment is not appropriate "if the evidence is such that a reasonable jury could return a verdict for the non-moving party," and the Court must "construe all facts and reasonable inferences in the light most favorable to the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Carter v. City of Milwaukee, 743 F.3d 540, 543 (7th Cir.2014).
Defendant argues that the doctrine of res judicata bars certain parts of Plaintiff's claims that have been, or could have been, previously litigated. D MSJ at 3. Where a final judgment has "been rendered on the merits of a claim, res judicata protects the finality of that judgment and prevents parties from undermining it by attempting to relitigate the claim." Palka v. City of Chicago, 662 F.3d 428, 437 (7th Cir.2011). In federal court, res judicata has three elements: (1) an identity of parties; (2) a final judgment on the merits; and (3) an identity of the cause of action (as determined by comparing the suits' operative facts). U.S. ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 851 (7th Cir.2009). Whether there is an identity of the cause of action depends on "whether the claims comprise the same core of operative facts that give rise to a remedy." Matrix IV, Inc. v. Am. Nat'l Bank & Trust Co. of Chi., 649 F.3d 539, 547 (7th Cir.2011). Res judicata "does not preclude a suit arising from a completely different event, no matter how similar the defendant's misconduct." Russian Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 311 (7th Cir.2010). As such, it cannot preclude claims which did not even exist and could not possibly have been sued upon in the previous case. Singer Co. v. Skil Corp., 803 F.2d 336, 343 (7th Cir.1986), citing Lawlor v. National Screen Service, 349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955).
Defendant argues that "Plaintiff's Title VII (race and gender), § 1981 race, disability and ADA retaliation claims are barred by res judicata to the extent that such claims have been or could have been litigated in Plaintiff's three prior employment discrimination and retaliation lawsuits against the Board." D MSJ at 3. Plaintiff responds by noting that "the causes of action in dispute in this matter accrued after her last pro se lawsuit was dismissed in September 2007." P Br. at 5. The Court agrees with Plaintiff.
There are six causes of action at issue here. For each cause of action, Plaintiff is required to prove that an adverse employment action was wrongfully taken against her. The cause of action accrued at the time Plaintiff learned of the adverse action. Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir.1995). Plaintiff claims the following adverse actions:
Counts II-VI, along with the disparate treatment claim in Count I, are based solely on Plaintiff's suspensions, which occurred in January and April of 2008. Those claims could not have been litigated in Plaintiff's previous lawsuits, the last of which was dismissed in September 2007. See Johnson v. Chicago Board of Ed., 07 C 1281 (N.D.Ill.2007). As such, those claims are not barred by res judicata.
Slightly more complicated, however, is Plaintiff's allegation in Count I that she was denied an accommodation in violation of the ADA when Munns consistently refused to transfer her to an earlier shift. Defendant claims that "res judicata bars further litigation of not only those matters that were actually decided, but also those issues that could have been raised in a prior action." D MSJ at 3, citing Roboserve, Inc. v. Kato Kagaku Co., Ltd., 121 F.3d 1027, 1034 (7th Cir.1997). Defendant argues, then, that because Plaintiff had been denied the "early shift" prior to her previous lawsuits, she was required to bring that claim in those lawsuits; and because the "early shift" issue could have been raised at that time, any subsequent litigation regarding the issue is barred by res judicata. This line of argument is incorrect. Roboserve makes clear that once "a transaction has caused injury, all claims
The ADA forbids employers from discriminating against a qualified individual with a disability because of that disability. Silk v. Bd. of Trustees, Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d 698, 706 (7th Cir.2015). Plaintiff may "show discrimination in either of two ways: by presenting evidence of disparate treatment or by showing a failure to accommodate." Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir.2001). In the present matter, Plaintiff has alleged both disparate treatment and a failure to accommodate. [1] Complaint at ¶¶ 6-30; P Br. at 6-18. Before proceeding to the merits of those claims,
The ADA was significantly amended in 2008, with the law becoming effective January 1, 2009. Congress did not express its intent that the amendments be retroactive, see ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008), and the Seventh Circuit has found that they are not. Fredricksen v. United Parcel Serv., Co., 581 F.3d 516, 521 n. 1 (7th Cir.2009). The Court will therefore apply the version of the ADA in place when the events giving rise to Plaintiff's claims occurred. Id. Here, due to the ADA's 300 day time limit, the events giving rise to Plaintiff's ADA claims must have occurred between October 16, 2007 and August 12, 2008.
To show disparate treatment under the ADA, Plaintiff may proceed under either the direct or the indirect method. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir.2004). However, because Plaintiff here proceeds only under the direct method and does not advance any argument under the indirect method, see P. Br. at 6-10, the Court need not address the indirect method. Weber v. Universities Research Ass'n, Inc., 621 F.3d 589, 592 (7th Cir. 2010); Nichols v. Michigan City Plant Planning Dep't, 755 F.3d 594, 600 (7th Cir.2014) ("non-moving party waives any arguments that were not raised in its response to the moving party's motion for summary judgment").
Under the direct method, Plaintiff must show: (1) that she is disabled within the meaning of the ADA; (2) that she is qualified to perform the essential functions of the job with or without accommodation; and (3) that she has suffered an adverse employment action because of her disability. Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 683 (7th Cir.2014). Plaintiff, however, has not satisfied her burden as to the first and third prongs.
Under the ADA, an individual is "disabled" if he or she: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. Stewart v. Cnty. of Brown, 86 F.3d 107, 111 (7th Cir.1996). Plaintiff argues that she was disabled because her depression, post-traumatic stress disorder ("PTSD"), migraines and anxiety (her "psychological disorders") substantially limited one or more major life activities. P Br. at 6-7. She also argues that she was "regarded as" disabled. Id.
Plaintiff was "substantially limited" if her impairment rendered her "unable to perform a major life activity that the average person in the general population can perform or [if she was] significantly
In deciding whether a person is disabled, courts consider "the nature and severity of the impairment, the duration and expected duration of the impairment, and the permanent or long term impact or the expected permanent or long term impact of or resulting from the impairment." Id. at 937 (citing 29 C.F.R. § 1630.2(j)(2)(i)-(iii)). The court's "central inquiry is whether [Plaintiff] has an impairment that prevents or severely restricts [Plaintiff] from doing activities that are of central importance to most people's daily lives permanently or over a long term period." Valadez v. Steiner Corp., 156 Fed.Appx. 821, 824 (7th Cir.2005); Ogborn v. United Food & Commercial Workers Union, Local No. 881, 305 F.3d 763, 767-68 (7th Cir.2002) (holding that an eight week bout of depression that completely prevented plaintiff from working was not a disability as defined by the ADA).
In interpreting the pre-2009 ADA, the Supreme Court explained that it is "insufficient for individuals attempting to prove disability status ... to merely submit evidence of a medical diagnosis of an impairment." Williams, 534 U.S. at 198, 122 S.Ct. 681. In other words, "merely having an impairment, such as depression, does not make an individual disabled under the statute. A claimant must also demonstrate that the impairment limits a major life activity." Ogborn, 305 F.3d at 767-68.
To survive summary judgment, plaintiff must provide specific facts establishing that her psychological disorders substantially limited a major life activity. Scheerer v. Potter, 443 F.3d 916, 919 (7th Cir.2006). Plaintiff's evidence is insufficient to survive summary judgment if it "merely states in conclusory fashion" that the problems existed, without any factual support, examples, details, or "any indication as to whether the problems are currently extant or resolved, when, where or how the problems developed, how severe they were, or how long they may have lasted." Stein v. Ashcroft, 284 F.3d 721, 726 (7th Cir.2002).
Here, it is plain from the record that Plaintiff was not substantially limited in working a broad class of jobs. As an initial matter, the great weight of the evidence in the record shows that Plaintiff was not substantially limited in working her own job. Throughout this litigation, she has repeatedly and unequivocally stated that she was able to complete not only her own work, but the work of other custodians. Ans. to DSOF at ¶ 69; DSOF Ex. 1 at ¶¶ 19, 51, 61, 74, 84; Johnson Dep. Tr. at 140:7-12, 155:1-8,157:12-15. This is particularly apparent in Plaintiff's deposition testimony, where she explained that her psychological disorders had no effect on her ability to do her job from 2003 to 2007. Johnson Dep. Tr. at 73:14-22 (2003), 75:6-12 (2004); 77:1-14 (2005); 78:15-79:6 (2006); 81:22-82:1 (2007).
Plaintiff offers only two pieces of her own testimony as evidence purporting to show that she was substantially limited in doing her own job:
While the above testimony questions Plaintiff's ability to do her own job, and, at face value, directly contradicts the majority of the evidence before the Court, it ultimately does not show that Plaintiff was unable to
In addition to working, Plaintiff claims that she was substantially limited in the following major life activities: washing herself, eating, talking and sleeping. P. Br. at 7; PSOF ¶¶ 1-3. As previously explained, the pre-2009 ADA had a "demanding standard for qualifying as disabled." Williams, 534 U.S. at 197, 122 S.Ct. 681. To qualify as disabled based on a substantial limitation, the major life activity at issue must have been limited "considerably" or "to a large degree," and not merely "in a minor way." E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 801 (7th Cir.2005). It also must have been limited on a permanent or long-term basis. Id.
The evidence in the record here falls short. The sole evidence offered by Plaintiff in this regard comes from her own deposition testimony, where she testified:
The first cited testimony is insufficient for two reasons. First, the testimony does not show that any activity was limited "considerably" or "to a large degree." It merely mentions that Plaintiff's psychological disorders "affected" her everyday activities. Second, the statement does not show that the effects of Plaintiff's psychological disorders were permanent or long-term. The quoted section of testimony only shows that the listed activities were limited at some point in the year 2007.
Plaintiff argues that she also qualifies as disabled under the ADA because the Defendant "regarded" her as disabled. P Br. at 7. To qualify on that ground, Plaintiff must demonstrate that her "employer, rightly or wrongly," believed that she had "an impairment that substantially limit[ed] one or more major life activities." Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 335 (7th Cir.2004). To establish a "regarded as" claim, however, it is "not enough for a plaintiff to show that the employer knew of the plaintiff's impairment." Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th Cir.2001). The Plaintiff must also show that the employer believed that one or more of the Plaintiff's major life activities were substantially limited by Plaintiff's impairment. Id. Plaintiff has not met that burden here.
Plaintiff has presented minimal evidence that Defendant knew of her impairments generally, but no evidence that Defendant believed those impairments substantially limited any life activities. Plaintiff has presented the following segments of her own deposition testimony to show Defendant's supposed knowledge of her impairments:
Plaintiff also generally describes the incident in which she had to lay down in Munns' office due to her alleged "incapacitation," but was able to walk away as soon as the ambulance arrived. P Br. at 7. While Plaintiff has presented some evidence that Munns was generally aware that Plaintiff had certain physchological issues, she did not provide any evidence showing that Defendant regarded those issues as substantially limiting Plaintiff in any way. In fact, the evidence shows just the opposite, as Plaintiff repeatedly claims that Defendant relied on her to perform extra or additional work, including securing the building at night. Ans. to DSOF ¶ 52; DSOF ¶ 65. This suggests that Munns believed Plaintiff was not substantially
Even if Plaintiff did qualify as disabled under the ADA, her claim would nonetheless fail under the "direct method" because she has submitted no evidence that her alleged disability caused any adverse action against her. Because Plaintiff has no direct evidence that Defendant's actions were based upon her disability, she must present circumstantial evidence that "allows a jury to infer intentional discrimination by the decision maker." Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir.2003). Suspicious timing of an employment decision, when presented along with "other bits and pieces" of circumstantial evidence creating a "convincing mosaic of discrimination," can permit an inference of discriminatory motive. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736-37 (7th Cir.1994). Plaintiff cannot show causation because she has presented no such evidence here.
Plaintiff claims that adverse actions were taken against her when she was suspended in January and April 2008. P Br. at 9. However, Plaintiff's only evidence that these actions were taken because of her disability is the unsupported statement in her response brief that the "discipline was directly related to Johnson's disability." Id. Contradicting her own claim mere sentences later, Plaintiff then states that she was disciplined because of "performance issues," (i.e., she did not complete certain tasks that were assigned to her). Id. at 9-10.
Defendant further explained that Plaintiff was suspended because: (1) she failed to properly secure the building — including leaving a window open and failing to disable access to an outside keyless pad which would have allowed access to the school; and (2) she slept on duty, loitered on site, and incompetently or inefficiently performed her duties. DSOF at ¶ 60-61. Plaintiff has presented no evidence showing that the adverse actions were taken against her because of her alleged disability. As such, she has not met her burden under the direct method. Summary judgment is granted in Defendant's favor on Plaintiff's claim of disparate treatment under the ADA.
The elements of an ADA failure to accommodate claim are: "(1) the plaintiff must be a qualified individual with a disability; (2) the employer must be aware of the plaintiff's disability; and (3) the employer must have failed to reasonably accommodate the disability." Brumfield v. City of Chicago, 735 F.3d 619, 631 (7th Cir.2013). Plaintiff fails in at least two regards here.
For the reasons explained above, Plaintiff was not disabled as defined under the ADA. As such, Plaintiff cannot prevail on her claim for failure to accommodate under the ADA. Summary judgment is therefore granted in the Defendant's favor on the failure to accommodate claim in Count I.
Even if the Court agreed with Plaintiff that she qualified as disabled under the ADA, it would nonetheless grant Defendant's motion with regard to the failure to accommodate claim. To prevail on an accommodation claim, Plaintiff must show that she "needed an accommodation to perform the essential functions of the job at issue." Brumfield, 735 F.3d at 633. In Brumfield, the plaintiff claimed that the defendant failed to accommodate her unspecified "psychological problems." Id. at
Plaintiff's own brief, and the factual record supporting it, show that she cannot prevail on her failure to accommodate claim because she was, in fact, able to perform the essential functions of her job without accommodation. In her response brief, Plaintiff argues as follows:
The factual record supports this argument, as Plaintiff has admitted that she was "consistently able to perform not only her duties but those of others." DSOF ¶ 69. Because Plaintiff did not need "an accommodation to perform the essential functions of the job at issue," Brumfield, 735 F.3d at 633, her failure to accommodate claim is unavailing. Summary judgment is granted in favor of the Defendant on that claim.
Plaintiff contends that the Board discriminated against her based on race in violation of Title VII (Count III) and 42 U.S.C. § 1981 (Count IV). Specifically, Plaintiff claims that the Defendant discriminated against her when it "disciplined and suspended [her] without pay for not completing the work of others (in addition to her own work)." P. Br. at 16. The Court will address each Count in turn.
Plaintiff's claim under Section 1981 fails because it was not timely filed. Plaintiff filed this lawsuit on August 7, 2013. [1]. The statute of limitations on claims brought pursuant to Section 1981 is four years. Dandy v. UPS, 388 F.3d 263, 269 (7th Cir.2004). Therefore, Plaintiffs § 1981 claim is limited to addressing discriminatory conduct occurring after August 7, 2009. The only adverse employment actions claimed by Plaintiff here are the January and April 2008 suspensions. P. Br. at 15-16. Thus, Plaintiff's Section 1981 claim is time barred. Defendant's motion for summary judgment is granted with regard to Count IV.
A plaintiff claiming race discrimination under Title VII can use either the direct or indirect method. Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir. 2015). Here, because Plaintiff argues only the indirect method, P. Br. at 13, the Court will confine its analysis accordingly. Id. at 680; Weber v. Universities Research Ass'n, Inc., 621 F.3d 589, 592 (7th Cir. 2010). Under the indirect method, Plaintiff must first establish a prima facie case of discrimination by showing that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was meeting her employer's legitimate expectations at the time of the adverse action; and (4) the employer treated similarly
To qualify as similarly situated, a fellow employee must be "directly comparable to the plaintiff in all material respects." Walker v. Bd. of Regents of the Univ. of Wis. Sys., 410 F.3d 387, 397 (7th Cir.2005). The similarly situated analysis calls for a "flexible, common-sense" examination of all relevant factors. Henry v. Jones, 507 F.3d 558, 564 (7th Cir.2007). Plaintiff must be "similarly situated with respect to performance, qualifications, and conduct," and must show that the other employee "engaged in similar conduct without differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them." Id. The purpose of the "similarly-situated" comparator employee is to ensure that all other variables are discounted so that discrimination can be inferred. Silverman v. Board of Education, 637 F.3d 729, 742 (7th Cir.2011). The comparators must be similar enough that any differences in their treatment cannot be attributed to other variables. Id. Generally, a plaintiff must show that the other employee: "1) dealt with the same supervisor; 2) was subject to the same standards; and 3) engaged in similar conduct." Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 860 (7th Cir.2008). Plaintiff has set out only three proposed comparator employees: Jennifer Holloway, Felicia Mitchell, and Angel Marin. P Br. at 18-19.
With regard to Holloway and Mitchell, they cannot serve as comparators because they are both African-American, and therefore fall within the same protected class as Plaintiff. Under the indirect method, Plaintiff must show that "the employer treated similarly situated employees
With regard to Marin, he is not similarly situated for two reasons. First, he was not employed by Defendant at the time of Plaintiff's suspensions. Plaintiff must show that she was similarly situated to Marin at the time of the alleged discrimination against her. Jordan, 396 F.3d at 834; Lillie v. Chartwells, No. 04 C 5453, 2007 WL 951900, at *5 (N.D.Ill. Mar. 26, 2007) ("in determining whether two employees are similarly situated, the inquiry must focus on the time of the job action at issue"). Marin did not begin working at Sauganash
Because Plaintiff has provided no evidence showing that similarly situated employees outside of her protected class were treated more favorably, she cannot succeed on her Title VII claim for racial discrimination. Defendant's motion for summary judgment is granted with regard to Count III.
In addition to race discrimination, Plaintiff claims that she was discriminated against due to her gender in violation of Title VII. P Br. at 13. A plaintiff "alleging sex discrimination in employment under Title VII can proceed under either the direct method or the indirect, burden-shifting method." Petts v. Rockledge Furniture LLC, 534 F.3d 715, 720 (7th Cir.2008). Here, Plaintiff has opted to proceed under only the indirect method, P Br. at 13, so the Court will do likewise. Weber v. Universities Research Ass'n, Inc., 621 F.3d 589, 592 (7th Cir.2010).
Under the indirect method, as with her race claims, Plaintiff must show that: "(1) she is a member of a protected class; (2) she met her employer's legitimate job expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of the protected class received more favorable treatment." Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 666 (7th Cir.2008). Plaintiff's claim fails because she has not provided any evidence of similarly situated employees outside of the protected class who received more favorable treatment.
As with her claim for racial discrimination, Plaintiff has offered only three proposed comparators for her claim of gender discrimination: Jennifer Holloway, Felicia Mitchell, and Angel Marin. P Br. at 18-19. Holloway and Mitchell are both women. [60-1] Munns Aff. at ¶¶ 5-6. Plaintiff is also a woman. DSOF ¶ 1. As explained above, Holloway and Mitchell cannot serve as comparators here because they are within the same protected class as Plaintiff — female. Jordan, 396 F.3d at 833; Mokry, 2009 WL 2588888, at *14. With regard to Marin, he cannot serve as a comparator on Plaintiff's gender discrimination claim for the same reasons he could not serve as a comparator for her racial discrimination claim. He was not employed at Suaganash until four years after the suspensions at issue, and he did not engage in the same conduct as Plaintiff. See supra Part IV(d)(ii)(1). Defendant's motion for summary judgment is granted with regard to Count V.
Plaintiff claims that Defendant retaliated against her in violation of both the ADA (Count II) and Title VII (Count VI). Plaintiff alleges generally that the Defendant retaliated against her for filing several EEOC charges and lawsuits complaining of Defendant's conduct. P. Br. at 22. That retaliation took the form of the two suspensions previously discussed in this Opinion. Id.
To establish causation on a claim for retaliation under the ADA, the Plaintiff must show that her protected activity was a "substantial or motivating factor" behind the adverse employment action. Taylor-Novotny v. Health Alliance Med. Plans, Inc., 772 F.3d 478, 495 (7th Cir.2014).
To address causation, the Court must first identify the protected activities and adverse actions that are at issue. The adverse actions claimed by Plaintiff are her suspensions in January and April of 2008. P Br. at 21-22. Protected activities include asserting rights under the ADA by either seeking an accommodation or by raising a claim of discrimination due to disability. Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 814-15 (7th Cir.2015). Plaintiff claims that she engaged in protected activity when she filed charges of discrimination against the Defendant in March 2004, June 2004, March 2005 and November 2006. [1] Cmplt. at ¶ 81. She also filed related lawsuits in October 2004, July 2005, and March 2007. DSOF ¶¶ 33, 36, 39.
The first statement by Munns was likely made in the year 2005, and is thus too far removed to infer retaliatory conduct. See DSOF ¶¶ 27-29; Johnson Dep. Tr. at 113: 3-15. The second and third statements, however, were made in the second half of 2007. The record then shows the following: (1) Plaintiff sued the Board alleging disability discrimination on March 7, 2007; (2) that suit was ongoing until September 18, 2007; (3) sometime in the second half of 2007, Munns made a series of angry comments to Plaintiff complaining about Plaintiff's lawsuits while suggesting that Plaintiff get another job; and (4) Plaintiff was suspended on January 16, 2008. Drawing all inferences in Plaintiff's favor (as this Court must at this stage of the proceedings), this is sufficient facts to create a convincing
To establish causation under Title VII, a plaintiff must show that the protected activity was the "but-for" cause of the employer's decision. Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013); Carlson v. CSX Transp., Inc., 758 F.3d 819, 828 n. 1 (7th Cir.2014). Despite this "but-for" requirement under Title VII, courts have continued to interpret the causation requirement under Title VII similarly to the causation requirement under the ADA. See Ripberger v. Corizon, Inc., 773 F.3d 871, 881 (7th Cir.2014); Yost v. Chicago Park Dist., 17 F.Supp.3d 803, 812 (N.D.Ill. 2014). As with ADA retaliation, Title VII retaliatory motive may be established through circumstantial evidence such as suspicious timing, ambiguous statements, evidence that the stated reason for the employment decision is pretextual and "other bits and pieces from which an inference of discriminatory intent might be drawn." Ripberger, 773 F.3d at 881. As explained above, the course of events in this matter is — drawing all inferences in Plaintiff's favor — sufficient to allow a reasonable jury to find retaliatory motive. Defendant's motion for summary judgment is denied with regard to Count VI.
In light of the foregoing, Defendant's motion for summary judgment [38] is granted with regard to Counts I, III, IV, and V. It is denied with regard to Counts II and VI. This matter is set for a status hearing at 10:45 a.m., on November 5, 2015, in Courtroom 1725. At that time, the parties shall come to Court prepared to discuss: (1) the possibility of settlement; and (2) a jury trial of this matter scheduled on December 7, 2015.
IT IS SO ORDERED.
