Escarzaga v. Board of Trustees of Community College District 508

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ELIZABETH ESCARZAGA, )

)

Plaintiff, ) Case No. 15 C 2568

)

v. )

) Judge Jorge L. Alonso

BOARD OF TRUSTEES OF )

COMMUNITY COLLEGE )

DISTRICT #508 d/b/a CITY )

COLLEGES OF CHICAGO, and )

MICHAEL ROBERTS, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Carmen Escarzaga (“plaintiff” or “Escarzaga”)1 filed against defendants Board of

Trustees of Community College District #508 (“City Colleges of Chicago”) and Michael Roberts

an amended complaint asserting claims arising from her employment with City Colleges of

Chicago. The Court previously dismissed all of plaintiff’s claims against defendant Michael

Roberts and some of plaintiff’s claims (including a claim for age discrimination) against City

Colleges of Chicago. [Docket 21]. Defendant City Colleges of Chicago moves for summary

judgment on plaintiff’s remaining claims. For the reasons set forth below, the Court grants

defendant’s motion [50] for summary judgment.

I. BACKGROUND

The following facts are undisputed unless otherwise noted.2

1 Carmen Escarzaga is deceased and has been replaced as plaintiff by her daughter, Elizabeth

Escarzaga. The Court refers to Carmen as plaintiff for simplicity.

2 Local Rule 56.1 outlines the requirements for the introduction of facts parties would like

considered in connection with a motion for summary judgment. The Court enforces Local Rule

56.1 strictly. Where one party supports a fact with admissible evidence and the other party fails

Defendant City Colleges of Chicago operates Harry S. Truman College (“Truman

College”), where plaintiff started working in 1991. Plaintiff, who was of Mexican descent, was a

part-time employee in the Cosmetology Department, where she taught until May or June of

2014, when she retired.

Truman College offers students two types of classes: (1) courses for which a student

could earn college credit (“credit courses”); and (2) continuing education courses (“non-credit

courses”). Non-credit courses are taught by employees called adult educators. Credit courses

are taught by either full-time employees called professors or part-time employees called

adjuncts.

Truman College’s instructors were represented by three different unions. The adult

educators (i.e., the instructors of non-credit courses) are represented by the American Federation

of State, County and Municipal Employees, Council 31, AFL-CIO and its Local 3506

(“AFSME”). Full-time professors are represented by the Local 1600 AFT, AFL-CIO, Chicago

Illinois Faculty and Training Specialists. Finally, the part-time adjuncts are represented by the

City Colleges Contingent Labor Organizing Committee—Illinois Education Association-

National Education Association (“CCCLOC”). It is possible for an instructor to have more than

one title, if, for example, she teaches both credit and non-credit courses.

to controvert the fact with citation to admissible evidence, the Court deems the fact admitted.

See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218-19 (7th Cir. 2015); Ammons v.

Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004). This does not, however,

absolve the party putting forth the fact of the duty to support the fact with admissible evidence.

See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). Furthermore, the Court does

not consider facts that parties failed to include in their statements of fact, because to do so would

rob the other party of the opportunity to show that the fact is disputed.

In Truman College’s Cosmetology Department, instructors taught credit courses. Thus,

the full-time professors (who were also called “training specialists”) were represented by Local

1600 AFT, AFL-CIO, while the part-time adjuncts were represented by CCCLOC.

An instructor’s pay is determined by the applicable collective bargaining agreement.

Under the CCCLOC collective bargaining agreement, part-time adjunct instructors are paid per

student contact hour (which essentially means per 50-minute class period). The pay per contact

hour is based, in part, on the instructor’s educational background. Adult educators, on the other

hand, are paid by the hour.

At some point during the first four months of 2013, plaintiff was given a contract as a

part-time cosmetology adjunct. (The parties dispute whether that happened in January or April

of 2013, but it does not matter when it happened.) Essentially, plaintiff’s title was changed from

adult educator to part-time adjunct. Plaintiff wondered why defendant was changing her title

when she was “getting ready to retire.” At the time of the switch, plaintiff’s students were happy

with her teaching and she was not subject to discipline.

The change in title had the effect of reducing plaintiff’s pay. At some point in the first

half of 2013, the payroll department ran an audit and determined that plaintiff had been overpaid.

Specifically, plaintiff had been paid both as a part-time adjunct and as an adult educator.

Defendant asked plaintiff to return the money, and she agreed to do so via payroll deduction.

Plaintiff was not the only employee who was overpaid. Irene Bannister, who had been plaintiff’s

supervisor, was also overpaid. She, too, returned the money.

At times during her employment, plaintiff thought she was treated unfairly. Three or four

years before she retired, plaintiff was passed over for a promotion and was denied an opportunity

to attend a seminar. At some point, because she was going to miss two days of a summer class,

plaintiff was required to share the class with another instructor, which affected the total number

of hours she worked.

In addition, plaintiff did not like some things that Michael Roberts (“Roberts”) said to

her. Roberts is (and was during 2013) the Human Resources Director at Truman College.

Plaintiff was offended by comments Roberts made to her during meetings that took place in

March, April and May of 2013. Specifically, Roberts said to plaintiff, “I do not understand you,”

“I am not understanding you, I will get a translator,” and “I will call for an interpreter to make

sure you are understanding me[.]” Roberts also said, “Do you understand me? Do you

understand me?” Plaintiff testified that she spoke English “with a strong accent” and sometimes

needed a translator for written English. Plaintiff’s union representative translated for plaintiff

during one meeting. Another thing plaintiff did not like was when Roberts said plaintiff “does

not have the education to make that kind of money.”

While she was working for defendant, plaintiff had diabetes. Plaintiff never told anyone

at City Colleges of Chicago that she had diabetes. When plaintiff missed work for a few days,

she told supervisor Irene Bannister only that she was sick. Plaintiff never asked for an

accommodation for her diabetes.

City Colleges of Chicago maintains a non-discrimination policy. City Colleges of

Chicago prohibits discrimination and harassment on the basis of age, race, color, national origin,

ethnicity and disability. City Colleges of Chicago has an EEO Office that investigates

complaints of discrimination from students, employees and anyone else involved in activities

related to City Colleges of Chicago. The EEO Office also assists disabled employees with

finding a reasonable accommodation.

On August 27, 2013, plaintiff filed with the Illinois Department of Human Rights a

charge of discrimination, in which she alleged that, during the period of March 2013 through

August 2013, she had been discriminated against on the basis of her national origin and disability

and harassed on the basis of her national origin. She received a Right to Sue notice in March

2015 and timely filed her complaint in this Court.

II. STANDARD ON A MOTION FOR SUMMARY JUDGMENT

Summary judgment shall be granted “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.” Fed.R.Civ.P.

56(a). When considering a motion for summary judgment, the Court must construe the evidence

and make all reasonable inferences in favor of the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is

appropriate when the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to the party’s case and on which that party will bear the burden

of proof at trial.” Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party

exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broadcast Group,

Inc., 414 F.3d 686, 692 (7th Cir. 2005).

III. DISCUSSION

In her amended complaint, plaintiff sets out two counts. In essence, though, she has five

remaining claims. Plaintiff claims that she was discriminated against on the basis of her

race/national origin in violation of Title VII of the Civil Rights Act of 1964 and in violation of §

1981. Plaintiff claims that she suffered harassment on the basis of her national origin in

violation of Title VII. Plaintiff claims that she was discriminated against on the basis of her

disability in violation of the Americans with Disabilities Act (“ADA”). Finally, plaintiff seeks

relief under § 1983 for violation of her constitutional right to equal protection of the law.

A. Plaintiff’s disparate treatment claims

Plaintiff argues that defendant violated Title VII and § 1981 when it demoted her, i.e.,

when it changed her title from adult educator to part-time adjunct, which change resulted in a

pay cut. Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice

for an employer—(1) to fail or refuse to hire or 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, sex, or national origin.” 42

U.S.C. § 2000e-2(a). Section 1981 guarantees a person the same right to “make and enforce”

contracts “as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).

The court uses the same standards to analyze both claims, so it will consider them

together. Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017) (“We generally use the

same standard to review discrimination and retaliation claims under § 1981 and Title VII[.]”).

Ultimately, the Court must decide whether “‘the evidence would permit a reasonable factfinder

to conclude that the plaintiff’s race [or national origin] . . . caused the [demotion].’” McKinney

v. Office of Sheriff of Whitley Cty., 866 F.3d 803, 808 (7th Cir. 2017) (quoting Ortiz v. Werner

Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016)).

Where, as here, the record contains no direct evidence of discrimination, a plaintiff may

take advantage of the McDonnell Douglas burden-shifting framework by first making out a

prima facie case of discrimination. McKinney, 866 F.3d at 807. To make out a prima facie case

of discrimination, a plaintiff must put forth evidence that: (1) she is a member of a protected

class; (2) she was meeting her employer’s legitimate expectations; (3) she suffered an adverse

employment action; and (4) a similarly-situated employee outside of her protected class was

treated more favorably. McKinney, 866 F.3d at 807. The “burden of establishing a prima facie

case of disparate treatment is not onerous.” Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S.

248, 253 (1981). It requires plaintiff to show that she was “rejected under circumstances which

give rise to an inference of unlawful discrimination,” and the “standard is not inflexible” because

facts vary in different cases. Burdine, 450 U.S. at 253 and n.6.

Here, as defendant points out, plaintiff cannot make out a prima facie case of

discrimination, because she has not shown that similarly-situated individuals outside of her

protected class were treated more favorably. Plaintiff has put forth sufficient evidence of the

first three elements. She has shown that her national origin is Mexico, so she is a member of a

protected class. She has put forth evidence that her students enjoyed her class and that she was

not subject to discipline, which suffices to show she was meeting her employer’s expectations. It

is undisputed that defendant changed her title to part-time adjunct, which reduced her pay

(because she was subject to a different collective bargaining agreement). That is an adverse

employment action.3 Plaintiff has not, however, put forth any evidence of a similarly-situated

instructor outside of her protected class who was treated more favorably. She has not, for

example, named an instructor who was allowed to teach credit courses in the Cosmetology

3 Plaintiff mentions other incidents but does not seem to be arguing that they were adverse

employment actions. Specifically, plaintiff put evidence in the record that three or four years

before she retired, she was passed over for promotion and denied an opportunity to attend a

seminar. These incidents occurred more than 300 days before plaintiff filed her charge of

discrimination, so they are time-barred. Plaintiff also put forth evidence that, because she was

going to miss two days of a summer class, she was required to share the class with another

instructor. Plaintiff has not put forth evidence of a similarly-situated instructor outside of her

protected class who was allowed to miss days of summer class without having to share the class

with another instructor. Thus, plaintiff could not survive summary judgment on such a claim,

even if she were making one.

Department (or any other department for that matter) as an adult educator. Thus, plaintiff fails to

make out a prima facie case of discrimination.

Even if she could, defendant has articulated a legitimate, non-discriminatory reason for

the decision to change her title to part-time adjunct. Plaintiff’s former title—adult educator—

was a title given to instructors of non-credit courses. The courses plaintiff taught in the

Cosmetology Department were credit courses, and part-time instructors of credit courses were

titled part-time adjuncts.

Because defendant has articulated a legitimate, non-discriminatory reason for the title

change, plaintiff has the burden to show that the stated reason was pretext for discrimination on

the basis of her national origin or race. McKinney, 866 F.3d at 807 (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 804 (1973)). A pretext is a dishonest explanation, rather than an

error. Bodenstab v. County of Cook, 569 F.3d 651, 657 (7th Cir. 2009). “It is not enough to

demonstrate that the employer was mistaken, inconsiderate, short-fused, or otherwise benighted;

none of those possibilities violates federal law. Poor personal management finds its

comeuppance in the market rather than the courts.” Yindee v. CCH Inc., 458 F.3d 599, 602 (7th

Cir. 2006) (internal citations omitted); see also Boston v. U.S. Steel Corp., 816 F.3d 455, 465

(7th Cir. 2016) (noting that the Seventh Circuit has long championed employers’ rights to make

their own decisions based on honest beliefs) (quoting Green v. National Steel Corp., Midwest

Div., 197 F.3d 894, 899 (7th Cir. 1999)). Plaintiff has put forth no evidence that suggests

defendant’s reason was dishonest. It is unclear why plaintiff had previously held the title of

adult educator. Perhaps it was simply an error or perhaps the Cosmetology Department

previously offered non-credit courses. Neither possibility, though, constitutes pretext for

discrimination. Plaintiff argues that Roberts’s comments about not understanding her and about

needing a translator show that the reason for the change was pretext for discrimination. The

Court disagrees. It is undisputed that plaintiff sometimes needed a translator for written English,

that she used her union representative as a translator at one meeting and that plaintiff, as she

alleged in her complaint, spoke with a “strong accent.” In this context, the Court fails to see how

attempting to overcome a language barrier shows discriminatory animus.

In sum, no reasonable jury could conclude that defendant discriminated against plaintiff

on the basis of her national origin or race when it changed her title to part-time adjunct, which

reduced her pay.

B. Plaintiff’s harassment claim

Title VII also prohibits the creation of a hostile work environment, such that the work

environment is “so pervaded by discrimination that the terms and conditions of employment

[are] altered.” Vance v. Ball State Univ., 570 U.S. 421, 427 (2013) (citing Harris v. Forklift Sys.

Inc., 510 U.S. 17, 21 (1993)).

Where, as here, plaintiff seeks to establish a claim for national-origin harassment, a

plaintiff must show: (1) that she was subjected to unwelcome harassment; (2) the harassment was

based on her national origin; (3) the harassment was severe or pervasive such that it altered the

terms and conditions of employment and created a hostile or abusive work environment; and (4)

a basis for employer liability. Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017). In considering

“whether a workplace is objectively hostile, we consider the totality of the circumstances,

including: ‘the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere’s

with an employee’s work performance.’” Alamo, 864 F.3d at 549-550 (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 23 (1993)). The question of employer liability turns on whether the

alleged harasser was a co-worker or a supervisor of the plaintiff. Where a co-worker harasses

the plaintiff, an employer is liable only if it was negligent. Faragher v. Boca Raton, 524 U.S.

775, 789 (1998). Only if the alleged harasser is plaintiff’s supervisor is it possible for the

employer to be vicariously liable for the harassment. Vance, 570 U.S. at 428-30 (citing

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher, 524 U.S. 775).

Here, plaintiff has put forth evidence that she was offended by comments Roberts made

to her over the course of several meetings in March, April and May of 2013. Plaintiff did not

appreciate it when Roberts asked her “Do you understand me? Do you understand me?” She

also did not appreciate it when Roberts said, “I am not understanding you. I will get a translator”

or when Roberts said “I do not understand you” and “I will call for an interpreter to make sure

you are understanding me[.]” In addition, Roberts said that plaintiff “does not have the

education to make that kind of money.”

No reasonable jury could conclude that this constitutes actionable harassment on the basis

of plaintiff’s national origin. First, Roberts’s comment about plaintiff not having “the education

to make that kind of money” is not related to plaintiff’s national origin. Nor could it be thought

to be objectively hostile, given that plaintiff’s pay was determined by a collective bargaining

agreement, pursuant to which education was a factor in pay. As to Roberts’s comments about

not understanding plaintiff, his attempts to overcome a language barrier is not objectively

offensive, particularly where, as here, plaintiff sometimes needed a translator and spoke with

what she described in her complaint as a “strong accent.” Perhaps plaintiff was offended

because Roberts’s tone was rude or abrupt (though there is no evidence of that), but, even if that

were the case, the incidents would merely be offensive comments. The comments were not

severe, they were not pervasive, they were not physically threatening and they did not alter the

conditions of her employment. Roberts’s comments did not make plaintiff’s workplace

objectively hostile. Defendant is entitled to summary judgment on plaintiff’s harassment claim.

See Akinbode v. Motorola, Case No. 05 C 4600, 2007 WL 2316951 at *13 (N.D. Ill. Aug. 13,

2007) (comments about plaintiff’s accent did not constitute actionable harassment).

C. Plaintiff’s ADA claim

The Americans with Disabilities Act (“ADA”) makes it unlawful to “discriminate against

a qualified individual with a disability because of the disability of such individual in regard to . .

. terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To prevail on her

claim that defendant discriminated against her on the basis of her alleged disability, plaintiff

must show: (1) she is disabled; (2) she is qualified to perform the essential functions of her job

with or without a reasonable accommodation; and (3) she suffered an adverse employment action

because of her disability. Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.

2014).

Here, plaintiff argues that she was demoted due to her disability. It is undisputed that

plaintiff had diabetes. Although plaintiff has not put forth any evidence of how this affected her

major life activities (or even stated what major life activity was substantially limited), the Court

will assume without deciding that plaintiff was disabled. Defendant argues that it could not have

discriminated against plaintiff on the basis of her disability, because it did not know she had

diabetes. Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995) (“At the most

basic level, it is intuitively clear when viewing the ADA’s language in a straightforward manner

that an employer cannot fire an employee ‘because of’ a disability unless it knows of the

disability. If the employer does not know of the disability, the employer is firing the employee

‘because of’ some other reason.”). The Court agrees that the undisputed facts are that plaintiff

never told anyone at City Colleges of Chicago that she was diabetic. Plaintiff testified that when

she missed a few days of work, she told her supervisor only that she was ill. Plaintiff testified

that she never told anyone at City Colleges of Chicago that she was diabetic. Because defendant

did not know about plaintiff’s disability, her disability could not have been the reason why

defendant switched plaintiff’s title from adult educator to part-time adjunct.

Defendant is entitled to summary judgment on plaintiff’s ADA claim.

D. Plaintiff’s § 1983 claim

Finally, plaintiff seeks relief against defendant City Colleges of Chicago under § 1983 for

violation of her rights under the Equal Protection Clause. The Equal Protection Clause in the

Fourteenth Amendment to the United States Constitution “protects individuals from

governmental discrimination,” typically on the basis of “race, national origin or sex.” Swanson

v. City of Chetek, 719 F.3d 780, 783 (7th Cir. 2013). In her complaint, plaintiff alleged that the

termination of her employment violated her rights under the Equal Protection Clause. Defendant

moved for summary judgment, because, among other things, plaintiff left her employment

voluntarily by retiring. In response, plaintiff argues that defendant violated her right to Equal

Protection of the laws when it demoted her and harassed her due to her national origin.

Plaintiff seeks to hold defendant liable under Monell v. Department of Soc. Serv. of N.Y.,

436 U.S. 658 (1978), where the Supreme Court set out the circumstances under which a

municipality could be liable under § 1983 for constitutional violations. A municipality cannot be

held liable under § 1983 based on respondeat superior liability. Monell, 436 U.S. at 691.

Instead, a municipality can be liable only if the injury was the result of the municipality’s policy

or custom. Monell, 436 U.S. at 694. Plaintiff has not put forth any evidence of a municipal

policy to treat individuals from Mexico differently and has not put forth any evidence of how

other individuals from Mexico were treated. Plaintiff argues that the treatment she experienced

is evidence of a “widespread practice,” but no reasonable jury could conclude that defendant had

a custom of discrimination based on the few incidents plaintiff experienced, even if those

incidents had amounted to constitutional violations, which they did not.

Plaintiff’ s claim for relief under § 1983 also fails, because the Court has already ruled

that defendant did not discriminate against plaintiff on the basis of her national origin or race

when it demoted her and did not subject plaintiff to national-origin harassment. Without an

underlying violation of plaintiff’s constitutional rights, there is no basis for holding the

municipality liable. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); White v. City of

Chi., 829 F.3d 837, 844 (7th Cir. 2016) (affirming dismissal of Monell claim where plaintiff “did

not suffer a constitutional injury, which is a necessary element of a Monell claim’’).

Defendant is entitled to summary judgment on plaintiff's § 1983 claim.

IV. CONCLUSION

For the reasons set forth above, the Court grants defendant’s motion [50] for summary

judgment. Defendant is granted summary judgment on plaintiff's remaining claims under Title

VII (disparate treatment and harassment), the ADA, § 1981 and § 1983. Civil case terminated.

SO ORDERED. ENTERED: June 5, 2018

JORGEL.ALONSOU

United States District Judge

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