Opinion
No. 98 C 7849
February 16, 2000
MEMORANDUM OPINION AND ORDER
Pamela Lynn Bick ("Bick" or "Plaintiff") filed a suit for retaliatory discharge under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215(a)(3). Bick contends that she was terminated by Harrah's Operating Company, Inc., Harrah's Joliet Casino, and Harrah's Illinois Corporation (collectively, "Defendants") for lodging complaints about working "off the clock." Before this court is Defendants' Motion for Summary Judgement. For the reasons discussed below, Defendants' motion is granted.
I. Factual Background
Defendants operate casinos on two boats located in Joliet, Illinois. From May 1996 through April, 1998, Bick was employed by Defendants, first as a cashier in the cage department until May 1997, and thereafter as a server in the Food and Beverage Department ("F B"). Rhonda Anderson was head of the F B at all relevant times. Dave Martyka ("Martyka") was Bick's direct supervisor and Jennifer Vidican ("Vidican") also served as a supervisor in the F B.
Vidican's notes reveal that on November 3, 1997, Bick called the Human Resources department ("HR") to complain about "not being paid for enough hours." (Pl. Ex. 17, Doc. 500066). On that same report, Vidican noted that Bick's manner on the phone displayed insubordination to a supervisor. Bick's December 22 evaluation rated her performance as "highly successful." (Pl. Exh. 17, Doc. 500046). On January 11, 1998, Plaintiff witnessed Vidican writing on the sign-out sheet. Once Vidican left, Plaintiff copied the sign-in/sign-out sheet and observed that some of the sign-out times had been altered. On January 13 and January 15, Bick reported that incident to Inman and complained that she though that employees were being forced to sign out before all of their duties were completed, resulting in them working "off the clock."
The majority of Bick's complaints, however, concerned her strained relationships with two co-workers in particular. In December 1997, Martyka met with Bick to discuss her alleged use of a recorder to tape a conversation in violation of company policy, During that meeting, Bick complained about personal problems with her co-worker. On December 18, Bick reported to Martyka that her co-worker was harassing her. (Def. Exh. 5). The next day, Bick submitted a six page handwritten letter to HR detailing how some of her co-workers were on a "vengeful hate trip" against her. (Pl. Exh. 17, Doc. 500056-61). On March 12, 1998, Bick wrote a 4 page letter detailing how a co-worker called her a slob in front of customers and continued to harass her. (Def. Exh. 13). In a March 26 meeting with Martyka and another employee, Bick complained that she was having problems with co-workers. On March 28, Bick wrote yet another four page letter describing alleged harassment by a colleague.
Martyka wrote up a report of a meeting between him and Bick. He dated it December 6, 1998, which was either a typographical error or, as Bick alleges, his attempt to falsify a report. (See Def. Exh. 4, Def. Exh. C at Doc. 100450).
On January 26, Inman wrote up an investigation form on Bick, stating that she had, in violation of instructions that an ongoing investigation of Martyka for sexual harassment was to be kept confidential, informed her colleagues about the investigation. (Def. Exh. 7). Inman also noted on that report that Bick "need[ed] to stay out of other coworkers' issues." That same day, Bick was issued a first and final waning for violations of the Conduct Standard and the Confidentiality Policy. Specifically, the report cited Bick for failure to demonstrate courtesy, friendliness, and professionalism, for coercion, threats, and intimidation of fellow employees, and for disobeying company rules. (Pl. Exh. 17, Doc. 500007). Following a verbal warning on January 23, Bick was issued a written disciplinary warning for wearing the wrong shade of black pantyhose on January 30. (Pl. Exh. 17, Doc. 500008). The January 30 warning was changed to a verbal warning after Bick questioned the basis for it. (LR56.1(b)(3)(A) Stmt. 6 60)
Local Rule LR56.1(a)(3) requires a party moving for summary judgment to file a statement of material facts as to which the moving party contends there is no genuine issue. Thus, the term LR56.1(a)(3) Statement will refer to this document. Similarly, the LR56.1(b)(3)(A) Statement is the opposing party's response to the movant's LR56.1(a)(3) Statement, while the LR56.1(b)(3)(B) Statement consists of the opposing party's submission of additional facts that require denial of summary judgment.
On April 2, Bick's termination notice was issued. That report stated that Bick constantly badgered fellow servers for information regarding a server; that she continued to violate the company "No Gossip/Rumor" policy, (Pl. Exh. 17, Doc. 50009-10), by talking openly about fellow servers; and that she admitted to violating the gossip policy when she tape recorded conversations at work. (Def. Exh. 1). The Board of Review, which considered Bick's appeal, upheld her termination.
II. Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
The movant bears the burden of establishing that there exists no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). If the movant meets this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. A scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [nonmovant]."Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Weighing evidence, determining credibility, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Anderson, 477 U.S. at 255, 106 S.Ct. at 2515.
III. Analysis
A. Preliminary Motions
Before reviewing the substance of Defendant' motion for summary judgment, the Court will address the parties' preliminary motions. First, Defendants move this Court to strike Bick's answers to Defendants' motion. On November 29, 1999, Bick filed her "Answer to Defendants' Motion for Summary Judgment," a three page document briefly addressing Defendants' motion. On December 6, Bick filed a second document with the same title. The latter submission consists of fifteen pages of in-depth argumentation. Defendants point out that, taken together, Plaintiff's two answer briefs exceed the 15 page limitation established by Local Rule. (See LR 7.1). Indeed, they do. Accordingly, Plaintiff's first answer will be disregarded by the Court; instead, only the second answer brief will be considered.
Second, Defendants move the Court to strike Michael Salvetti's affidavit. Defendants argue that Bick's "incomplete . . . Rule 26 disclosure concerning Mr. Salvetti did not reveal the significance of his anticipated testimony as a witness." (Def. Mot. Strike Affid. at ¶ 1). Defendants' argument is completely baseless. Bick identified Salvetti in her initial Rule 26(a)(1) disclosures, describing him as one of Bick's co-worker who was "aware of the harassment, corruption and specifically knew about changes to the time cards." Salvetti's affidavit remains within these bounds, attesting to his own experience as well as others whom he witnessed who were ordered by Vidican to cut fifteen minutes from time cards. In light of Bick's disclosure, it is preposterous for Defendants to accuse Bick of "misle[ading] [them] to believe that Mr. Salvetti did not, in fact, have any relevant information." (Def. Memo. Mot. Strike Affid. at 3). Plaintiff's disclosure was straightforward and adequate. See Fed.R.Civ.Proc. 26(a)(1) (requiring parties to exchange names and contact information of relevant persons, "identifying the subjects of the information"); id. Advisory Committee's Note to 1993 Amendments ("A major purpose of the revision [adding paragraph (a)(1)] is to accelerate the exchange of basic information about the case") [emphasis supplied]; id. ("Indicating briefly the general topics on which such [disclosed] persons have information should not be burdensome") [emphasis supplied]. If Defendants failed to fully investigate Salvetti, it is by virtue of their own dereliction and Plaintiff will not be penalized for it.
Defendants' complaint is especially hypocritical in light of the fact that they failed to make Rule 26 disclosures until four and half months past the Court's deadline.
Furthermore, Defendants contend that Salvetti's declarations violate the rules of evidence. They detail how each paragraph in the affidavit contains statements without proper foundation and/or inadmissible hearsay and/or irrelevant material. The statements in the affidavit do not suffer from a lack of foundation. In addition, Defendant misconstrue the meaning of hearsay. Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." When they challenge Salvetti's declarations as inadmissible hearsay, Defendants appear to disregard the latter part of this definition, as well as the hearsay exceptions articulated in the Rules of Evidence. See Barner v. City of Harvey, No. 95 C 3316, 1998 WL 664951, at *2-3 (N.D. Ill. Sep. 18, 1998) (discussing how "legally operative statements" and admissions of the party opponent do not constitute inadmissible hearsay). Yet it is true that the majority of Salvetti's affidavit, which supports Bick's allegations of an FLSA violation (that is, to the extent that the violation does not pertain to retaliatory discharge), are irrelevant to the instant case. As will be described later in this opinion, the actual violation of the law (again, to the extent that the violation is not retaliatory discharge) is not an element of a cause of action for retaliatory discharge. In fact, there is no requirement that the FLSA actually be violated for the plaintiff to maintain a successful claim of retaliation. Sapperstein v. Hager, 188 F.3d 852, 857 (7th Cir. 1999). Therefore, Defendants' motion to strike Salvetti's affidavit is granted to the extent that statements relating to Defendants' alleged practice of forcing employees to work off the clock will be stricken.
Although Bick does not make a formal motion, she urges the Court though her LR56.1(b)(3)(A) Statement to strike all statements included in Defendants' LR56.1(a)(3) Statement which are supported by Rhonda Anderson's deposition and/or the "Employment Relations File." This Court ordered parties to make their Rule 26(a)(1) disclosures before May 15, 1999. Defendants failed to adhere to this order. Instead, on August 9, Defendants faxed to Plaintiff a Rule 26 disclosure statement. The August 9 disclosure, which was never filed with this Court, did not include Anderson and, although it identified a "Personnel File," did not mention an "Employment Relations File," which was kept separate and apart from the Personnel File. On September 30, Defendants finally filed their disclosure statement, which identified both Anderson and the Employment Relations File.
Pursuant to Rule 37(c)(1) of the Rules of Civil Procedure, a party that "without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence . . . on a motion any witness or information not so disclosed." Defendants missed the Court's scheduling deadline by four and a half months, subjecting their eventual disclosures to exclusion.See Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996). The sanction of exclusion is automatic and mandatory unless the party to be sanctioned can show that its violation of Rule 26(a) was either justified or harmless. Id.; Mid-America Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353, 1363 (7th Cir. 1996). Although Defendants have not even attempted to suggest a justification for their substantial delay, the Court finds that Bick suffered no harm from Defendants' actions. Not only had Bick named Anderson on her own disclosure statement, but Plaintiff, on her own initiative, deposed Anderson. Furthermore, Defendants made a proper disclosure three weeks before they moved for summary judgment on October 20, thereby affording Bick adequate time to prepare. Defendants' LR56.1(a)(3) Statements that contain cites to Anderson's deposition testimony and/or the Employee Relations File will therefore be considered by the Court.
Neither party specifies which documents were absent from the Personnel File but included in the Employment Relations File. From the record before this Court, it appears that the documents which ostensibly could have been included in the Employment Relations File would have, at most, constituted 50 pages, and it is not too burdensome to expect Plaintiff to review them within the three week period. Moreover, the majority of the statements of fact supported by Anderson's deposition was also independently supported by other sources. It is interesting to note that, after vehemently opposing Plaintiff's submission of a second Answer, Defendants themselves submitted an "amended" LR56.1(a)(3) Statement that deleted all references to Anderson. The propriety of this amended LR56.1(a)(3) statement is immaterial, however, because it was not relied upon in light of the Court's finding that Defendants' statements would not be barred by Rule 37.
B. Motion for Summary Judgment
Bick maintains that she was discharged in retaliation for her complaints about Defendants' policy of demanding that employees work "off the clock," and specifically for her bringing a complaint on January 13 and 15, 1998, regarding Vidican's alleged tampering of the sign-in sheet.
Section 215 of the FLSA prohibits an employer from discriminating against an employee in retaliation for asserting an FLSA claim. Scott v. Sunrise Healthcare Corp., 195 F.3d 938, 940 (7th Cir. 1999). To defeat summary judgment, a plaintiff must, in the absence of direct evidence of retaliatory animus, establish her case through the burden-shifting approach announced in McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25 (1973). The first step of this method requires the plaintiff to set forth a prima facie case of retaliation. In doing so, Bick must demonstrate that she engaged in protected expression, that she suffered an adverse employment action, and that a causal link existed between the protected expression and the adverse action Id.; Cuevas v. Monroe Street City Club, Inc., 752 F. Supp. 1405, 1410 (N.D. Ill. 1990).
Section 215(a)(3) of the FLSA provides that:
it shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [any violation of the FLSA]. 29 U.S.C. § 215(a)(3).
Defendants do not dispute, for the purpose of this motion, that Bick engaged in protected expression when she made her complaints on January 13 and 15. Likewise, Defendants do not dispute that Bick suffered an adverse action, namely, her termination. (Def. Mot. at 4). The disagreement arises with respect to the second component of the prima facie case: that is, causation. A showing that the adverse employment action follows on the heels of the protected activity is indirect evidence of retaliation. Scott, 195 F.3d at 941. In the present case, however, Plaintiff was not terminated until April 2, over two and a half months after she lodged her complaints. The courts have found a one-week gap between the protected activity and the adverse action to constitute a clear demonstration of a causal link. See, e.g., Cuevas, 752 F. Supp. at 1411 (citing Holland v. Jefferson Nat'l Life Insur. Co., 883 F.2d 1307, 1314 n. 3 (7th Cir. 1989)). On the other hand, the courts have considered a lapse of four or five months to be too long to establish causation. See, e.g., Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (five months too long); Cuevas, 752 F. Supp. at 1411 (same). The present case tends to fall somewhere in the middle, maybe veering toward the latter category, wherein the temporal sequence does not establish a causal nexus. See Zielonka v. Topinka, 28 F. Supp.2d 1081, 1091 (N.D. Ill. 1998) (observing that "the three months that passed between the [protected activity] and [the] termination may not quite fail the presumptive attenuation");Stohl v. Saint Joseph Health Centers and Hosp., No. 97 C 4970, 1998 WL 312005, at *16 (N.D. Ill. June 4, 1998) ("The court finds that three months between Stohl's last complaint and her discharge sufficiently diminish an inference of a casual link . . .").
The Court could also anchor Bick's protected act on her November 3, 1997, complaint to Vidican about "not being paid for enough hours." Yet choosing that date only makes Bick's effort to establish causation more difficult because it expands the time lapse. Even if the Court considers Vidican's November 3 note of Bick's insubordination as suggestive of retaliatory animus, it still does not help Bick make out her prima facie case. First of all, she is still unable to demonstrate a causal nexus between that complaint and her termination. Second, the more reasonable interpretation of Vidican's note is that she construed Bick's manner on the phone, rather than the substance of her complaint, to be insubordinate.
That is not to say that Plaintiff is precluded from making out her prima face case, but rather that additional proof of causation is necessary. Davidson, 133 F.3d at 511. Here, however, Plaintiff presents no evidence that compels an inference of a causal nexus. She does point to having received the admittedly petty written disciplinary notice for wearing the wrong color hosiery. Allegedly, the policy dictated that she wear sheer black pantyhose whereas Bick was wearing opaque hose. Bick may have been justified in disputing that write-up because it was indeed changed into a verbal warning after her complaint. Nevertheless, Bick's discharge was not triggered by that incident alone. Rather, her termination appears to have been based on other nondiscriminatory reasons, which brings this discussion to the next step in the burden-shifting method of proof.
Assuming arguendo that Bick is able to set forth a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reasons for the adverse action. In the instant case, Defendants offer a plethora of reasons for Bick's termination. Bick was disciplined for allegedly disclosing to others that Martyka was under investigation, although the fact of the investigation was supposed to be kept confidential. Moreover, she allegedly violated company policy by tape recording conversations at work. In addition, Defendants stress that Bick continually gossiped in violation of company policy prohibiting gossip and the spreading of rumors. Defendants were most compelled to terminate Bick in response to her numerous and verbose complaints about her strained relations with her colleagues. Bick accused her co-workers of being on "hate trips" against her and of harassing her. Whether or not Bick's complaints were substantiated is unclear to the Court, yet it is clear that she constantly subjected management to these complaints. Bick may be able to convince this Court that she was discharged for seeking out HR when she believed that she was being harassed by her co-workers. Although that may be an unfair basis for termination, it does not afford Bick a legal basis upon which to seek vindication in this proceeding. Defendants' have thereby set forth nondiscriminatory reasons for Bick's discharge.
Once Defendants satisfy their burden, the presumption of discrimination (which never existed in this case because Bick failed to establish a prima facie case) dissolves and the burden once again shifts to Bick. At this final stage, Bick must prove by a preponderance of the evidence that Defendants' proffered reasons are a pretext for retaliatory discharge. Wittenburg v. Wheels, Inc., 963 F. Supp. 654, 662-63 (N.D. Ill. 1997). Bick has not tendered any evidence that suggests that Defendants' reasons are pretextual; that is, that they are "not worthy of credence."Cuevas, 752 F. Supp. at 1412 (citing Holland, 883 F.2d at 1313).
In summary, Bick has failed to create a reasonable inference of a casual link between her complaints about working off the clock and her termination. Nor has she succeeded in creating a reasonable inference that the decision to terminate her was in violation of the prohibition on retaliation enunciated in the FLSA. Accordingly, Defendants' motion for summary judgement is granted.
Defendant also argue that Harrah's Operating Company cannot be subject to liability. Because summary judgment is granted as to all Defendants, the issue is moot.