JORGE L. ALONSO, District Judge.
Plaintiff, Zobaida Masud, sues defendant, Rohr-Grove Motors, Inc., her former employer, for discrimination, hostile work environment harassment, and retaliation under Title VII, 42 U.S.C. §§ 2000e et seq., and common-law retaliatory discharge. This case is before the Court on defendant's motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Court grants the motion in part and denies it in part.
The Court will briefly summarize the facts to provide the relevant background for the present motion. Defendant, a car dealer, hired plaintiff as a finance manager in June 2009. (Masud Dep., ECF No. 77-5, at 25-26, 78.) Plaintiff's job duties were to assist customers who had purchased an automobile with the legal and financial paperwork required to complete the transaction and help them secure financing, if necessary. (Pl.'s LR 56.1(b)(3)(B) Resp. ¶ 16.) Plaintiff is a Muslim woman of Palestinian Arab descent. (Am. Compl. ¶ 4; Masud Dep., ECF No. 77-5, at 12-13.)
Plaintiff claims that, virtually from the beginning of her time at Arlington Nissan, she was harassed by Sharif Qadri and Matt Tubai,
In her response to defendant's Local Rule 56.1(a)(3) statement of material facts,
(Pl.'s LR 56.1(b)(3)(B) Resp. ¶ 5.)
Plaintiff claims that she complained about Sharif and Tubai's conduct, although Latif denies ever hearing anything about it from her (id. ¶ 7), but the harassment continued unabated. (Pl.'s LR 56.1(b)(3)(B) Resp. ¶ 22.)
On August 27, 2009, plaintiff had an altercation with Bockwinkle. (Id. ¶ 36.) The details and causes of the altercation are disputed, but Bockwinkle testified at her deposition that, after the altercation, she told Latif either to fire plaintiff or get her under control. (Id. ¶ 41.) Later that day, Latif fired plaintiff, giving the altercation with Bockwinkle as the primary reason for her termination. (Id. ¶ 46.)
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission, and she received a right-to-sue letter mailed on June 11, 2013. (Am. Compl. Ex. 4.) She subsequently brought this lawsuit. Her amended complaint consists of five counts. Counts I-IV are claims for various violations of Title VII based on plaintiff's sex, race, "ancestry/ethnicity" (Am. Compl. ¶¶ 44, 54, 63), and religion. These counts are captioned as discrimination (Count I), hostile work environment (Count II), disparate treatment (Count III), and retaliation (Count IV). Count V is for retaliatory discharge under Illinois law.
To prevail on a summary judgment motion, "the movant [must] show[] 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). At this stage, the court may not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
In the present motion for partial summary judgment, defendant seeks judgment in its favor "as to all issues except Plaintiff's Title VII sexual harassment claim." (Mem. Supp. Summ. J. at 1.) Plaintiff does not respond to a number of defendant's arguments in its opening brief, and plaintiff's silence operates as a waiver. See Merry Gentleman, LLC v. George & Leona Prods., Inc., 76 F.Supp.3d 756, 761 (N.D. Ill. 2014).
The Court discerns from plaintiff's response brief that she intends to pursue essentially four claims: hostile work environment harassment, retaliation, and discrimination,
Defendant contends that the evidence cannot reasonably support any finding of harassment on the basis of race, religion, or national origin.
Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). An employer may be liable for discrimination, within the meaning of Title VII, if an employee is subject to a hostile work environment based on any of the characteristics enumerated by the statute. Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000). To prevail on a hostile work environment claim, the employee must show that (1) she was subject to unwelcome harassment, (2) the harassment was based on a protected characteristic, (3) the harassment was so severe and pervasive as to alter the conditions of the employee's environment and create a hostile or abusive working environment, and (4) there is a basis for employer liability, such as knowledge or participation by supervisors. Id.
First, defendant argues that plaintiff admitted that "she did not subjectively perceive her environment to be hostile on the basis of her race, national origin, ancestry, religion, or sex, apart from sexual harassment." (Reply at 9 (citing Pl.'s LR 56.1(b)(3)(B) Resp. ¶¶ 49-50, 52, 58, 63-64, 76)). Plaintiff makes no such admissions in any of the cited paragraphs.
Defendant also argues that plaintiff's contention that her sexual harassment "was `infused' with other protected categories is insufficient to create a triable issue." (Reply at 10 (quoting Resp. Br. at 1).) In support of its position, defendant cites Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999), in which, according to defendant, the court "analyz[ed] whether a hostile work environment has been established based on different protected characteristics separately" and found that the plaintiff had a "hostile work environment claim for race, but not for religion." (Reply at 10.)
Defendant's reliance on Hafford is misplaced. While it is true that Hafford held that the plaintiff had stated a claim for race discrimination but not a claim for religious discrimination that could stand on its own, Hafford explicitly recognized that plaintiff's race and religion claims may be related to the extent plaintiff experienced discrimination for being a "black Muslim," and it directed the trial court on remand to consider "the possibility that the racial animus of plaintiff's co-workers was augmented by their bias against his religion." See Hafford, 183 F.3d at 514-15 (citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-17 (10th Cir. 1987) ("[I]ncidents of racial harassment which may, by themselves, be insufficient to support a racially hostile work environment claim can be combined with incidents of sexual harassment to prove a pervasive pattern of discriminatory harassment in violation of Title VII.")).
In this case, plaintiff has not attempted to state a discrete harassment or hostile work environment claim for each of her numerous protected characteristics, and the evidence, viewed in the light most favorable to plaintiff, supports a pervasive pattern of discriminatory harassment based on not one but various protected characteristics all at once. For example, plaintiff alleges that Tabai and Sharif insinuated that plaintiff's family should kill her or otherwise punish her for dating a white, non-Muslim man.
Evidence of national origin discrimination may seem to be more elusive, to the extent that term might refer to discrimination on the basis of plaintiff's Palestinian heritage, specifically. But even if the fact that she was Palestinian, per se, did not drive any alleged harassment, the fact that she was at least broadly "Middle Eastern" may have. (See, e.g., Maxwell Dep., ECF 79-4, at 17-18.) Under such circumstances, summary judgment is inappropriate. See Salas v. Wis. Dep't of Corr., 493 F.3d 913, 922-23 (7th Cir. 2007) (evidence that plaintiff is "Latino" is enough to form element of prima facie case of national origin discrimination).
There is no need to determine, and the Court does not determine, whether plaintiff might have survived summary judgment on any of her race, religion, or national origin harassment claims, standing alone. It is enough that there is evidence of harassment based on race, religion, and national origin, in addition to sex, and, taking all the evidence together and viewing it in the light most favorable to plaintiff, the evidence creates a genuine issue of fact as to whether there was a pervasive pattern of harassment based on plaintiff's protected characteristics. Summary judgment is denied as to plaintiff's Title VII hostile work environment claim.
In addition to prohibiting certain unlawful employment practices in 42 U.S.C. § 2000e-2(a), as described above, Title VII makes it unlawful for an employer to "discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C.A. § 2000e-3(a). This type of discrimination is commonly known as "retaliation." Tomanovich v. City of Indianapolis, 457 F.3d 656, 662 (7th Cir. 2006). A plaintiff may prove retaliation by using either the direct method or the indirect method, which the Seventh Circuit has explained as follows:
Stephens v. Erickson, 569 F.3d 779, 786-87 (7th Cir. 2009) (internal citations omitted). The plaintiff must show that the protected complaints were a but-for cause of the adverse action by the employer, although they need not be the only cause. Carlson v. CSX Transp., Inc., 758 F.3d 819, 828 n.1 (7th Cir. 2014) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013)). The plaintiff can prove causation via direct evidence (akin to an admission) or "by presenting a `convincing mosaic of circumstantial evidence' that would permit the same inference without the employer's admission." Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012) (quoting Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 504 (7th Cir. 2004)).
In Title VII cases, the Seventh Circuit has recognized three categories of circumstantial evidence available to a plaintiff using the "convincing mosaic" approach. Id. The first is "suspicious timing, ambiguous statements oral or written, . . . and other bits and pieces from which an inference of [retaliatory] intent might be drawn." Id. (citing Silverman v. Bd. of Educ. of City of Chi., 637 F.3d 729, 734 (7th Cir. 2011)). The second is "evidence, but not necessarily rigorous statistical evidence, that similarly situated employees were treated differently." Volovsek v. Wis. Dep't of Agric., Trade & Consumer Prot., 344 F.3d 680, 689 (7th Cir. 2003). The third is "evidence that the employer offered a pretextual reason for an adverse employment action." Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 586-87 (7th Cir. 2011). "Each type of evidence is sufficient by itself (depending of course on its strength in relation to whatever other evidence is in the case) to support a judgment for the plaintiff; or they can be used together." Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).
Defendant claims that it is entitled to summary judgment on plaintiff's Title VII retaliation claim because her termination was not caused by any complaints she may have made about discrimination. Plaintiff, apparently proceeding by the direct method, responds that there is circumstantial evidence permitting the inference of causation.
Plaintiff does not point to a similarly situated person who can serve as a comparator, but the evidence could support a reasonable inference of retaliation based on suspicious timing and pretext. Plaintiff has adduced evidence of pervasive, ongoing harassment by Matt Tubai and Sharif Qadri during June, July and August 2009, and she claims that she promptly complained of it to Arlington Nissan supervisors or executives, including Latif Qadri and Pamela Bockwinkle. It is undisputed that plaintiff was fired on August 27, 2009, less than three months after she began to work at Arlington Nissan. According to the deposition testimony of Latif and Bockwinkle, Bockwinkle told Latif to fire plaintiff or get her under control. Latif testified that he decided, chiefly based on the tension between Bockwinkle and plaintiff, but also based on plaintiff's poor performance as a low-producing finance manager and her disruptive complaints about compensation, that the best course of action was to fire plaintiff.
A jury could reasonably infer that Latif's stated reasons for firing plaintiff were a pretext for retaliating against an employee who had complained about ongoing sexual harassment committed by two other employees, one of whom was Latif's brother and therefore an employee Latif might be uniquely interested in protecting. According to her deposition testimony, Bockwinkle did not demand that Latif terminate plaintiff, nor did she have the authority to do so, so the jury could find that Latif's decision to do so was attributable to plaintiff's complaints about his brother and Tubai's ongoing sexual harassment rather than the altercation with Bockwinkle. As for poor performance and disruptive complaints, plaintiff responds that she had not received any poor performance reviews; indeed, she was a new employee still in a probationary period, and as such, she had had no formal performance reviews. (Latif Qadri Dep., ECF No. 79-2, at 64.) A reasonable jury could find that these reasons, based on undocumented shortcomings, were a pretext.
To grant defendant's motion would be to rule on the credibility of the witnesses, which the Court may not do on summary judgment. Defendant's motion is denied as to the retaliation claim.
Defendant claims that the Court should grant summary judgment on plaintiff's common-law retaliatory discharge claim because the claim is preempted by the Illinois Human Rights Act and plaintiff was not terminated in retaliation for making any protected complaint.
The tort of retaliatory discharge represents a limited and narrow exception to the general rule of at-will employment. Turner v. Mem'l Med. Ctr., 911 N.E.2d 369, 374 (Ill. 2009). To prevail on a claim of retaliatory discharge under Illinois law, a plaintiff must show that (1) he was discharged (2) in retaliation for his activities, and (3) the discharge violates a clear mandate of public policy. Hartlein v. Ill. Power Co., 601 N.E.2d 720, 728 (Ill. 1992). "The element of causation is not met if the employer has a valid basis, which is not pretextual, for discharging the employee." Id.
The Illinois Supreme Court has not precisely defined a clearly mandated public policy, but it has explained that public policy is "to be found in the State's constitution and statutes, and, where they are silent, in its judicial decisions," and it "concerns what is right and just and what affects the citizens of the State collectively. . . . [A] matter must strike at the heart of a citizen's social rights, duties and responsibilities before the tort [of retaliatory discharge] will be allowed." Palmateer v. Int'l Harvester Co., 421 N.E.2d 876, 878-79 (Ill. 1981). Courts sustain claims of retaliatory discharge that arise in one of only two settings: "where an employee is discharged for filing, or in anticipation of filing, a claim under the Workers' Compensation Act; or where an employee is discharged in retaliation for the reporting of illegal or improper conduct, otherwise known as `whistleblowing.'" Howell v. BNSF Ry. Co., No. 14 C 9977, 2015 WL 3528237, at *2 (N.D. Ill. June 4, 2015) (quoting Michael v. Precision Alliance Grp., LLC, 21 N.E.3d 1183, 1188 (Ill. 2014)). It is well-established that a plaintiff who was fired for reporting criminal conduct may prevail on a retaliatory discharge claim as a "whistleblower." Corral v. UNO Charter Sch. Network, Inc., No. 10 CV 3379, 2013 WL 1855824, at *11 (N.D. Ill. May 1, 2013) (citing cases).
An Illinois tort claim is preempted by the Illinois Human Rights Act (the "Act")—which prohibits such civil rights violations as sexual harassment and retaliation for opposing sexual harassment, see Corluka v. Bridgford Foods of Illinois, 671 N.E.2d 814, 817 (Ill. App. Ct. 1996)—if the claim is "inextricably linked to a civil rights violation such that there is no independent basis for the action apart from the [Illinois Human Rights] Act itself." Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997) (citing Geise v. Phoenix Co. of Chi., 639 N.E.2d 1273, 1277 (Ill. 1994)). In other words, the Act only preempts a tort claim if there is no "basis for imposing liability [on the tort claim] . . . without reference to the legal duties created by the Act." Blount v. Stroud, 904 N.E.2d 1, 10 (Ill. 2009) (citing Maksimovic, 687 N.E.2d at 23). Defendant argues that plaintiff's retaliatory discharge claim is preempted to the extent she claims that she was terminated for complaining about sexual harassment because the Act directly prohibits just that sort of termination. See Bozek v. Corinthian Colls., Inc., No. 07 C 4303, 2009 WL 377552, at *9 (N.D. Ill. Feb. 13, 2009) (citing Corluka, 671 N.E.2d at 817).
Plaintiff responds that her retaliatory discharge claim is not predicated on complaints of sexual harassment alone; rather, it is predicated on internal reporting of battery, assault and intimidation, all of which are prohibited by the Illinois Criminal Code and therefore provide a basis for imposing liability for retaliatory discharge "without reference to the legal duties" created by the Illinois Human Rights Act. Defendant replies that plaintiff's claim is nevertheless "inextricably linked" with retaliation for complaints about sexual harassment—indeed, it is at the core of her claims against defendant—and her claim is therefore preempted.
The Court agrees with plaintiff. Defendant incorrectly emphasizes the shared facts of any predicate sexual harassment claim and any assault, battery, or intimidation that defendant's employees may have committed against plaintiff; the proper inquiry focuses on the source of the legal duties defendant or its employees allegedly breached. See Parker v. Side by Side, Inc., 50 F.Supp.3d 988, 1021 (N.D. Ill. 2014). A retaliatory discharge claim is not preempted merely because it rests on facts that could also support a claim under the Act, if the retaliatory discharge contravened some public policy other than the one embodied in the Act—such as the public policy embodied in the Illinois Criminal Code. See Maksimovic, 687 N.E.2d at 23 (intentional tort claims such as assault and battery not preempted because they "exist wholly separate and apart from a cause of action for sexual harassment" under the Act); Blount, 904 N.E.2d at 10 (plaintiff's claim of retaliatory discharge for refusing to perjure herself as to whether her employer had racially discriminated against another employee not preempted because perjury is a crime, so "plaintiff need not and does not rely upon the public policy embodied in the Act to satisfy the elements" of her retaliatory discharge claim). Plaintiff's retaliatory discharge claim is not preempted by the Illinois Human Rights Act.
Defendant contends that even if the retaliatory discharge claim is not preempted, plaintiff has not adduced evidence sufficient to satisfy the causation element of the claim. According to defendant, plaintiff has introduced no evidence that she was terminated for complaining about assault, battery and intimidation; rather, the essence of her claims is that she was terminated for complaining about harassment. However, plaintiff has alleged in Count V of her complaint that she was terminated in retaliation for her internal complaints of potentially criminal conduct by employees of defendant, and the Court has already explained that it cannot determine on summary judgment what the true reason for plaintiff's termination was. A reasonable jury could conclude that Latif Qadri terminated plaintiff for making complaints about possibly criminal acts that his brother may have committed. Defendant's motion for summary judgment is denied as to the retaliatory discharge claim.
In Counts I and III of her complaint, plaintiff claims that she suffered disparate treatment discrimination under Title VII. However, she does not clearly point to any adverse employment actions other than the above-described hostile work environment and retaliation, and it is unclear from the complaint if these counts make any distinct claims. In the section of her response brief titled "Disparate Treatment — FAC Counts I and III," plaintiff asserts that she suffered disparate treatment because she was subjected to a "two-month barrage of harassment," but that merely restates her Count II hostile work environment claim, which the Court has already addressed.
It also appears from the disparate treatment section of plaintiff's response brief that she is claiming to have been paid less than other employees based on her race, sex, national origin or religion, but the Court agrees with defendant that there is not sufficient evidence of any pay disparity to create a triable issue of fact. The only fact plaintiff asserts in her brief in support of her discrimination claim is that she was paid a 16 percent sales commission while a white, non-Muslim male was paid 18 or 20 percent. However, the evidence shows that this particular employee, Rick Caruso, was paid a higher rate based on his long experience and supervisory responsibilities. (Defs.' LR 56.1(a)(3) Stmt. ¶ 20.) Plaintiff ostensibly denies this fact in her Local Rule 56.1(b)(3) response (Pl.'s LR 56.1(b)(3)(B) Resp. ¶ 20), but in the very next paragraph she admits (as she admitted at her deposition) that Caruso was "in charge" of the finance department and she aspired to his position (id. ¶ 21; Defs.' LR 56.1(a)(3) Stmt. ¶ 21 (citing Masud Dep., ECF No. 77-5, at 114-15 ("Rick was kind of in charge of the department"), 178, 181-82, 187-88, 191, 380)). Further, there is no genuine dispute that numerous white males working at Arlington Nissan at or near the relevant time period were paid starting commission rates of 15 percent, lower than plaintiff's initial rate. (Defs.' LR 56.1(a)(3) Reply ¶ 20.) Plaintiff does not assert any other evidence in support of her alleged discriminatory treatment with regard to compensation. The Court must grant summary judgment for defendant on any such claim.
To the extent plaintiff's Count I and Count III disparate treatment discrimination claim rests on any employment action other than the above-discussed hostile work environment and retaliation, the Court grants defendant's motion for summary judgment as to that claim.
For the reasons set forth above, defendant's motion for summary judgment is granted in part and denied in part. The motion is denied as to plaintiff's state law retaliatory discharge claim, her Title VII retaliation claim, and her hostile work environment harassment claim. The motion is granted as to plaintiff's disparate treatment discrimination claim, to the extent that claim rests on any employment actions other than those that form the basis for her surviving retaliation and hostile work environment claims. A status hearing is set for November 5, 2015 at 9:30 a.m.
