Opinion
No. 99 C 8270.
August 3, 2001
ORDER
Plaintiff, Equal Employment Opportunity Commission ("EEOC"), and plaintiff-intervenors, Silvia Picazo and Rosa Gomez, have filed suit against defendant, Regis Hairstylists Salon ("Regis"). Plaintiffs allege that Regis engaged in discrimination based on national origin against ten Hispanic hair stylists at a Regis salon located in North Riverside, Illinois. Regis now moves for partial summary judgment, arguing that some of plaintiffs' claims are barred by the statute of limitations; that plaintiffs have failed to present sufficient evidence of discrimination regarding employees who suffered tangible employment actions; and that plaintiffs have failed to present evidence sufficient to make out a case of pattern and practice discrimination. Plaintiffs oppose partial summary judgment on all grounds. For the reasons set forth below, Regis' motion for partial summary judgment is granted in part and denied in part.
I. Statute of Limitations
Regis argues that the claims of four plaintiffs (Susan Martinez, Blanca Romero, Enida Arriaga, and Veronica Loera) are barred by the statute of limitations entirely because all four stopped working for Regis before the commencement of the limitations period. Regis further argues that some of the claims of other plaintiffs (Angelina Flores, Isabel Gomez, Rosa Gomez, Silvia Picazo, and Aurora Rodriguez) are similarly barred because the claims stem from events predating the limitations period. Plaintiffs oppose Regis' statute of limitations arguments. Regarding Martinez, Romero, Arriaga, and Loera, plaintiffs argue that their claims are timely because of the continuing violation doctrine; that Martinez and Romero were not aware that they could bring a cause of action until after the present suit was filed; and that Arriaga's and Loera's claims should not be barred because Regis was aware of their claims before the filing of the present suit. Regarding the claims of the other plaintiffs, plaintiffs argue that Regis has failed to "cite facts or law for excluding these claims," and that this failure prevents plaintiffs from effectively responding to defendants' arguments. (Pl. Resp. at 25.)
Martinez, Romero, Arriaga, and Loera
The continuing violation doctrine "allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period." Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). The doctrine, however, does not apply to claims put forth by parties terminated outside of the limitations period. See E.E.O.C. v. Harvey L. Walner Associates, 91 F.3d 963, 970 (7th Cir. 1996) (stating that three employees who were terminated outside of the limitations period could not bring suit under the continuing violation doctrine because "no act of discrimination against them could have occurred within the relevant time period."); Daniels v. Federal Reserve Bank of Chicago, 194 F.R.D. 609, 617 (N.D.Ill. Mar. 28, 2000) (holding that the continuing violations doctrine is "properly applicable only to include earlier claims for individuals, not to add new parties.")
Here, it is undisputed that the limitations period should be determined by looking at the date of the EEOC charge brought by Isabel Gomez, the first plaintiff to have sued Regis. Her discrimination charge was filed with the EEOC on January 22, 1998. The statute of limitations for a Title VII action is 300 days. Snider v. Belvidere Township, 216 F.3d 616, 618 (7th Cir. 2000). Thus, the limitations period began on March 27, 1997. It is undisputed that Martinez, Romero, Arriaga, and Loera stopped working at Regis before March 27, 1997. Therefore, none of their claims may be brought in the present suit.
Plaintiffs argue that Martinez and Romero should not be barred from bringing claims because they did not realize until after contact with the EEOC as part of this suit that they had a cause of action against Regis. That argument fails because of the discovery rule, which states that the statute of limitations begins to run for a federal cause of action when a plaintiff discovers that he has been injured. See Cada v. Baxter Healthcare Corp., 920 F.2d 446 , 449 (7th Cir. 1990), cert. denied, 501 U.S. 1261 (1991). Discovery of the injury occurs "when a person knows or should know of the act that gives rise to the injury, not when the person realizes that he may have a legal claim arising out of the injury." Duhart v. Fry, 957 F. Supp. 1478, 1486 (N.D.Ill. Mar. 26, 1997) (citing Cada, 920 F.2d at 449-451). Though Martinez and Romero may not have known that they had actionable injuries at the time that the injuries occurred, there is no dispute that Martinez and Romero knew of the acts giving rise to their injuries at the time they occurred. The limitations clock started ticking at the time the acts were allegedly perpetrated. It is undisputed that more than 300 days had transpired before the commencement of the limitations period in the present case. Therefore, the claims of Martinez and Romero are barred.
Plaintiffs also argue that Arriaga and Loera should not be barred from filing suit because Regis had notice of their claims, in the form of a suit with the Cook County Commission on Human Rights, before the initiation of the present suit. Problematic for plaintiffs is that the continuing violation doctrine will not apply if a plaintiff filed a claim at the time of the untimely acts. See generally Garrison v. Burke, 165 F.3d 565, 569 (7th Cir. 1999). Here, Arriaga and Loera filed claims after they discovered their injuries. Given that Arriaga and Loera knew of their claims and acted upon them, the continuing violation doctrine cannot help them.
Flores, I. Gomez, R. Gomez, Picazo, and Rodriguez
Regis contends that the above plaintiffs have alleged claims predating March 27, 1997, the start of the limitations period in this case, and that these claims are, therefore, time-barred. Plaintiffs primarily respond that these claims would be allowed under the continuing violation doctrine; that Regis has failed to identify the acts that they wish to exclude; that Regis has failed to present facts or law for excluding these claims; and that because of these deficiencies, plaintiffs cannot respond to Regis' arguments on this issue.
Regis is correct that plaintiffs bear the burden of establishing that the continuing violation applies in this case. See Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992). It is also true, however, that "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In their memorandum in support of their motion, Regis has utterly failed to identify those portions of the record that indicate an absence of factual issues regarding whether the above plaintiffs' complaints qualify under the continuing violation doctrine. Regis has identified the plaintiffs who have allegedly made claims based on events occurring outside the limitations period, but without any more detail as to the nature of the events (when they occurred, who was involved with them, etc.), something presumably supplied by the record, the court is at a loss to determine whether plaintiffs have presented sufficient evidence to link untimely acts to timely acts. Furthermore, plaintiffs cannot be made to respond to a summary judgment argument bereft of references to the record. Regis' motion for partial summary judgment as to these claims is denied.
II. Regis' Motion for Partial Summary Judgment as to Discriminatory Discharge Claims
Isabel Gomez
Regis argues that plaintiffs have failed to present sufficient evidence that Isabel Gomez satisfies the "legitimate expectations" element of the prima facie case for establishing a discriminatory discharge. Furthermore, Regis argues that even if Gomez can establish a prima facie case of discrimination, plaintiffs have failed to present evidence of pretext. Plaintiffs vigorously dispute Regis' arguments.In order to establish a prima facie case for discriminatory discharge under Title VII of the Civil Rights Act of 1964, a plaintiff needs to show (1) she is a member of a protected class; (2) she was doing her work well enough to meet her employer's legitimate expectations; (3) despite her performance, she was discharged; and (4) her employer sought a replacement for her, Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir. 1999), or that her employer treated similarly-situated employees outside of her protected class more favorably. Stockett v. Muncie Indiana Transit System, 221 F.3d 997, 1000 (7th Cir. 2000).
Regis argues that plaintiffs have failed to present evidence that Gomez met Regis' legitimate work expectations. Regis notes that it is undisputed that Isabel Gomez was absent or late for work a number of times. Regis further asserts that an employee with such a poor attendance record cannot be said to have met an employer's legitimate work expectations. The court need not reach this issue, however. The Seventh Circuit has held that when a plaintiff alleges that she was treated more harshly than a similarly situated worker for failing to meet a purported work expectation, the plaintiff need not show that she was meeting the legitimate work expectation element of the prima facie case for discriminatory discharge. Flores, 182 F.3d at 515. Because plaintiffs in this case contend that Gomez was treated more harshly than a similarly situated non-Hispanic who, plaintiffs contend, also failed to meet Regis' work expectations by having a poor attendance record, plaintiffs need not show evidence regarding the work expectations element.
In order to withstand summary judgment, plaintiffs do, however, need to present evidence of pretext regarding Regis' reason for Gomez's discharge. Regis asserts that the reason for Gomez' discharge was that she was absent and tardy even after Michelle Copeland, her supervisor, gave "several warnings" to Gomez regarding attendance. (Dep. of Michelle Copeland, Tab K to Def. Statement of Uncontested Facts in Sup. of Mot. for Sum. Judg. ("SUF"), at 264:22-23.) Plaintiffs state that this reason is pretextual. In support of this argument, plaintiffs contend that on the day of Gomez' discharge, she was told that the reason for her discharge was that she had failed to charge for a service that she performed, not that she had a poor attendance record. Further, plaintiffs contend that Copeland never warned or discussed with Gomez her being late or absent for work. Regis does not directly dispute either of these contentions, arguing that they are not "material." (Def. Reply to Pl. Resp. to Def. SUF at ¶ 28.) Plaintiffs also contend that Regis failed to discharge a similarly situated non-Hispanic employee, Kalem Hayes, despite his poor attendance record. Regis hotly disputes that Hayes is similarly situated to Gomez.
In order to show pretext, plaintiffs must "demonstrate that [Regis'] proffered reason is a lie or completely lacks a factual basis." Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000). Plaintiffs here do not contend that Gomez was never late or tardy to work; rather, plaintiffs argue that the proffered reason for Gomez' discharge is a lie. There are different ways to present evidence of a lie, but one of them is showing that a similarly situated worker was treated less harshly than the plaintiff despite engaging in the same conduct. The Seventh Circuit has stated that in order to make such an argument, a plaintiff must show that she "is similarly situated [to the other employee] with respect to performance, qualifications, and conduct." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). The Seventh Circuit has stated that in order for a proper comparison to be made, the conduct of the employees must be of "comparable seriousness." Spath v. Hayes Wheels Int'l Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000).
Plaintiffs have presented sufficient evidence of pretext to defeat a motion for summary judgment as to Gomez' claims. First, plaintiffs have presented evidence, which Regis has failed to rebut, that there was a significant discrepancy between the reason stated for Gomez' discharge on the day of her discharge and the reason offered now for her discharge. Coupled with evidence that Regis failed to warn Gomez regarding her attendance record, something Regis has again failed to rebut, the discrepancy in explanations is enough to make one wonder what is the real reason for Gomez' discharge. Regis has done nothing to clarify this discrepancy.
More importantly, plaintiffs have offered sufficient evidence that a similarly situated worker, Kalem Hayes, was treated less harshly than Gomez despite the fact that both engaged in roughly similar conduct. It is undisputed that the performance and qualifications of Hayes and Gomez were similar; that Hayes was warned about his attendance; and that unlike Gomez, Hayes was not terminated because of attendance problems. What is disputed is the seriousness of their bad conduct. It is undisputed that Gomez was absent two days (one of them because of illness) and late to work on twelve occasions between March and April, 1997. It is also undisputed, however, that Hayes was absent or late to work four times and had left work early (apparently without permission) at least seven times during that same period. Regis claims that Hayes is not similarly situated to Gomez because while Gomez was tardy twelve times, Hayes was tardy only four times. This argument is faulty, however, because Regis ignores the import of Hayes' early departures without permission on at least seven occasions. It is true that leaving early is not the same as coming to work late. A reasonable fact-finder, however, could decide that these infractions were viewed by Regis as being similar in severity. For instance, one of Regis' stated reasons for terminating another employee, Aurora Rodriguez, was that she had left early on one day. The Seventh Circuit has stated that in order to make a valid comparison with another employee, the infractions of the comparison employee must be of "comparable seriousness." Spath, 211 F.3d at 397. Plaintiffs have presented a genuine issue of fact as to the seriousness of Hayes' conduct such that granting summary judgment would be inappropriate. Regis' motion for summary judgment as to Isabel Gomez's discriminatory discharge claim is denied.
Rosa Gomez
Regis contends that summary judgment is proper with respect to Rosa Gomez' claims because plaintiffs have failed to present evidence of pretext regarding the reason for Rosa Gomez' discharge. Regis claims that it terminated Rosa Gomez because she violated Regis' conflict-of-interest policy. Plaintiffs argue that they have presented sufficient evidence of pretext.
It is undisputed that "Regis prohibits its employees from engaging in any activities in competition with it, such as operating a personal salon business," and that "[e]mployees who violate this conflict of interest policy may be terminated immediately." (Pl. Resp. to Def. SUF at ¶ 30.) It is also undisputed that at the salon, Copeland found at least one personal business card belonging to Rosa Gomez, containing her name and home phone number and stating that she provides several salon services: "facials, nails, manicures, pedicures, highlights, colors, perms." ( Id. at ¶¶ 30-32.) Furthermore, Rosa Gomez admits that "she kept two or three of those cards in her purse during her Regis employment." ( Id. at ¶ 32.)
Summary judgment is granted with respect to Rosa Gomez's discharge discrimination claim. Plaintiffs offer various pieces of evidence disputing the manner by which Copeland discovered Rosa Gomez's business card. Plaintiffs also offer Rosa Gomez's deposition testimony stating that the business cards were not real business cards; rather, they were created while Rosa Gomez was in beauty school, and that she kept these cards in her purse for "sentimental reasons." ( Id. at ¶ 31.) These pieces of evidence, however, do not contradict Regis' assertion that upon discovering the business card(s), Copeland's honest belief was that Gomez had violated Regis' conflict of interest policy. See Giannopoulos v. Brach Brock Confections, Inc., 109 F.3d 406, 411 (7th Cir. 1997) (stating that "when an employer articulates a reason for discharging the plaintiff not forbidden by law, it is not [the Seventh Circuit's] province to decide whether that reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.") For instance, the fact that these cards may not have been real business cards is irrelevant without a showing that Copeland knew of this fact and proceeded to terminate Gomez anyway. A mistaken, yet honest belief that the cards were real, and that Rosa Gomez was operating a home salon business, is not actionable. Regis' motion for summary judgment is granted with regard to Rosa Gomez's discriminatory discharge claim.
Silvia Picazo
Regis moves for summary judgment on Silvia Picazo's discriminatory discharge claim, arguing that plaintiffs have failed to show evidence of pretext regarding the reason for Picazo's discharge. Regis contends that Picazo violated Regis' conflict of interest policy by handing out Picazo's Regis business card with Rosa Gomez's home phone number on it. Plaintiffs argue that they have presented sufficient evidence of pretext.
It is undisputed that approximately two months after Copeland discharged Rosa Gomez for violating Regis' conflict of interest policy, "a Regis client . . . approached Copeland, handed her a Regis business card with then-former Regis stylist Rosa Gomez's name on it, along with Gomez's home phone number , and stated that Picazo had given it to her." (Pl. Resp. to Def. SUF at ¶ 42.) Picazo "admits that she provided a card with Gomez's name and [telephone number] to a client." ( Id.) Copeland subsequently terminated Picazo for an alleged violation of the conflict of interest policy.
Summary judgment is granted with respect to Silvia Picazo's discharge discrimination claim. Instead of offering evidence of pretext, plaintiffs primarily have offered (1) speculative evidence of a conspiracy to "set Picazo up" (Pl. Resp. at 11) for her ensuing violation of the conflict of interest policy and (2) evidence that Copeland told Picazo that the reason for her termination was not that she was handing out Rosa Gomez's phone number, but that she was handing out her own telephone number. The first piece of evidence is not useful in showing pretext because the manner by which Copeland discovered Picazo's infraction is irrelevant to whether Copeland believed that Picazo had violated Regis' conflict of interest policy. See also Murray v. Chicago Transit Authority, 252 F.3d 880, 888 (7th Cir. 2001) (citations omitted) (stating that the Seventh Circuit is "skeptical" of "elaborate plot theories" in discrimination cases). The second piece of evidence is not useful either because a slight discrepancy in the reasons for Picazo's termination does not raise a material factual issue regarding pretext. In order to show pretext, plaintiffs must "demonstrate that [defendant's] proffered reason is a lie or completely lacks a factual basis." Jordan, 205 F.3d at 343. The minor discrepancy in reasons does not render Copeland's belief completely baseless in fact. Whether Picazo handed out her own number or Rosa Gomez's number, Copeland's belief that Picazo had violated the conflict of interest policy could be considered accurate. Furthermore, the discrepancy does not show that Copeland's stated belief is a lie. Indeed, the evidence shows that Regis was consistent in its reason for terminating Picazo. Both at the time of the discharge and now during the litigation, the reason offered for Picazo's termination is that she violated the conflict of interest policy. Regis' motion for summary judgment on Picazo's discharge claim is granted.
Aurora Rodriguez
Regis moves for summary judgment on Aurora Rodriguez's discriminatory discharge claim, arguing that plaintiffs have failed to present sufficient evidence of pretext regarding the reason for Rodriguez's termination. Regis claims that Rodriguez was failing to charge or was undercharging clients after she had been warned on several occasions not to do so. Plaintiffs vigorously challenge defendants' argument, putting forth evidence that Regis' reason is pretextual.
First, plaintiffs challenge the factual basis for Regis' proferred reason for termination. Plaintiffs present evidence that Aurora Rodriguez had failed to charge only one customer, namely her mother, on October 31, 1999, not several; and that she had been subject to only two warnings, not several warnings. Rodriguez admits that she received one verbal warning from Copeland and one in the form of a company video instructing stylists to charge for their services. Defendants do not properly rebut this evidence, stating that "the number of free haircuts given by Rodriguez is not material," and that plaintiffs' evidence regarding warnings comes only from Rodriguez's testimony. (Def. Reply to Pl. Resp. to Def. SUF at ¶ 46-47.) Furthermore, plaintiffs present evidence that the reason given on the date of Rodriguez' termination supports the notion that Rodriguez had committed only one infraction, not the several that Regis now states. Regis admits that "Michelle Copeland suspended [and later terminated] Aurora Rodriguez for leaving early on October 31, 1999 and for not charging her mother for her haircut." (Def. Resp. to Pl. Statement of Add'l. Facts ("SAF") at ¶ 36.) It should be noted that Regis has now admitted that Rodriguez did not leave early on October 31, 1999. ( Id. at ¶ 37.)
When the evidence is viewed with all reasonable inferences made in favor of the plaintiffs, plaintiffs could show that Rodriguez committed only one infraction and was issued two warnings. Such a showing, however, would not be enough to establish that Regis' stated reason for discharging Rodriguez was completely baseless in fact. Perhaps recognizing this, plaintiffs resort to making comparisons with another similarly situated employee in order to show pretext.
Plaintiffs claim that Regis treated Kalem Hayes, a similarly situated employee according to plaintiffs, less harshly than it treated Rodriguez despite the fact that Hayes may have engaged in arguably more serious misbehavior than Rodriguez. It is undisputed that on January 19, 1998, Hayes was issued a "final warning notice for, among other things, failing to charge a client and lying . . . that the client was a `redo,'" and yet, "Copeland never suspended Hayes for any reason." ( Id. at ¶¶ 38-39.) In comparison, it is undisputed that following her failure to charge her mother for a haircut on October 31, 1999, Rodriguez admitted that she did not charge for the haircut and offered to pay for the haircut but was nevertheless suspended that day and later terminated.
Regis argues that this comparison is improper because Rodriguez and Hayes are not similarly situated. Regis argues that first, Hayes committed a violation at a time when the salon had a one-free-service-per-month policy, while Rodriguez committed an infraction after the policy had been suspended. The court notes that this difference is immaterial. Both Hayes and Rodriguez violated the policies in existence at the time of their infractions by giving more than their quota of free haircuts to friends and family. In the case of Hayes, the quota, which he exceeded, was one; for Rodriguez, it was zero. Second, Regis argues, Rodriguez's behavior was more serious because she had been given "several group and individual warnings" not to undercharge or fail to charge, whereas there is no evidence that Hayes had been given the same. (Def. Reply at 8.) Problematic for Regis is that plaintiffs have presented evidence that Rodriguez was warned only twice about not charging customers, and though Regis argues that Rodriguez was warned multiple times, there is a genuine fact issue here that cannot be resolved on summary judgment. Moreover, it is clear that Hayes was warned at least once and probably more than once in light of the fact that he was issued a "final" warning notice. ( Id. at 6 38.) Coupled with the fact that Hayes lied about his infraction, while Rodriguez did not, and the fact that Hayes was not suspended, while Rodriguez was suspended and later terminated, plaintiffs have presented sufficient evidence that a similarly situated worker may have been treated less harshly despite engaging in similar conduct. Regis' motion for summary judgment as to Rodriguez's discriminatory discharge claim is denied.
III. Motion for Partial Summary Judgment on Pattern and Practice Claims
Regis argues that plaintiffs have failed to present sufficient evidence of a pattern and practice of discrimination at Regis hair salons because they have presented only a small sample of cases for statistical analysis. Plaintiffs' pattern and practice claim amounts to the following: "By singling out Hispanic stylists for discipline and discharge, within a period of only three and one-half years, the [North Riverside] salon went from employing 73% Hispanic stylists to employingnot a single Hispanic stylist (once Rodriguez was terminated in November 1999)." (Pl. Resp. at 18.)
A pattern and practice claim cannot survive in this case. Regis has a chain of 1,000 hair salons. Plaintiffs present statistical evidence about only one of them, the North Riverside salon at which the ten class plaintiffs worked. In a footnote to an opinion deciding the government's pattern and practice claim against the Teamsters, the Supreme Court quoted legislative history explaining such a claim: "There would be a pattern or practice . . . if a chain of motels or restaurants practiced racial discrimination throughout all or a significant part of its system, or if a company repeatedly and regularly engaged in acts prohibited by the statute." Int'l. Brotherhood of Teamsters v. U.S., 431 U.S. 324, 336 n. 16 (1977) (emphasis added). Plaintiffs have failed to present statistical evidence regarding a significant portion of the Regis hair salon chain. Therefore, plaintiffs cannot show that Regis "practiced racial discrimination throughout all or a significant part of its [chain]." Id.; see also King v. General Electric Co., 960 F.2d 617, 626 (7th Cir. 1992) (stating that in order to make out a pattern and practice claim, a plaintiff needs to show a "company-wide" practice of discrimination). Summary judgment is granted on plaintiffs' pattern and practice claim.
Conclusion
For the foregoing reasons, Regis' motion for partial summary judgment is granted in part and denied in part.