Herrera v. Di Meo Brothers, Inc.

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ARTURO HERRERA, )

)

Plaintiff, )

) No. 19 C 8298

v. )

) Judge Virginia M. Kendall

DIMEO BROTHERS, INC., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

A few weeks after Plaintiff Arturo Herrera, who is Hispanic and Mexican, began working

for Defendant DiMeo Brothers, a white employee Tim Gavin asked Herrera about his citizenship,

his tattoos, and whether he was a gang member. Over one year later, Herrera overheard Gavin use

an ethnic slur to describe Mexican people on a phone call with another coworker. Additionally,

Herrera believes Gavin vandalized his vehicles in the DiMeo Brothers’ parking lot. Herrera brings

ethnicity and national origin discrimination claims under Title VII, Section 1981, and the Illinois

Human Rights Act against DiMeo Brothers and its owners, John and Mark DiMeo. He also alleges

violations of the Fair Labor Standards Act and the Illinois Minimum Wage Law for improper

overtime compensation. Herrera now moves for partial summary judgment on the wage claims.

(Dkt. 67). Defendants move for summary judgment on all counts. (Dkt. 69). For the reasons below,

Herrera’s partial motion is denied, and Defendants’ motion is granted in part and denied in part.

BACKGROUND

On November 7, 2017, Plaintiff Arturo Herrera, who is Hispanic and Mexican, began

working as a laborer for Defendant DiMeo Brothers, a construction company which Defendants

Mark and John DiMeo own and operate. (Dkt. 75 ¶¶ 2–3, 5–6, 15; Dkt. 77 ¶¶ 1–2, 4, 8).

A. Herrera’s Complaints of Discrimination

Herrera’s job responsibilities included moving materials between the DiMeo Brothers yard

and job sites and repairing materials in the yard. (Dkt. 77 ¶ 8). Mark and John DiMeo supervised

Herrera and had authority over hiring, firing, promotion, discipline, assignments, and pay. (Dkt.

75 ¶¶ 6–11; Dkt. 77 ¶¶ 18–19). Tim Gavin, who is white, is a mechanic and shop foreman. (Dkt.

77 ¶ 3). He “was in charge of the DiMeo Brothers yard and schedules.” (Id.). Gavin also gave

Herrera assignments, although he did not have hiring, firing, or disciplinary authority. (Dkt. 77

¶¶ 18–19). DiMeo Brothers did not have a written employment policy concerning harassment or

discrimination complaints. (Dkt. 80 ¶ 2). Nor did DiMeo Brothers provide anti-harassment training

to its employees. (Id. at ¶ 3). Rather, Mark DiMeo told Herrera to report any problems to John

DiMeo. (Id. at ¶ 4).

Herrera testified that, three or four weeks after he started working at DiMeo Brothers,

Gavin asked him if he was a U.S. citizen. (Dkt. 77 ¶ 20). Gavin then asked him about his tattoos

and if he was a gang member. (Id. at ¶ 20). Herrera spoke to John DiMeo about Gavin’s questions,

asking if Gavin “would always ask those type of questions.” (Id. at ¶ 22; Dkt. 77-1 at 28–29). On

a separate occasion, between March and May 2019, Herrera testified that he overheard Gavin use

an ethnic slur to describe Mexicans during a phone conversation with another coworker. (Dkt. 77

¶ 23). Herrera never complained about this incident. (Id. at ¶ 24).

Herrera further testified that Gavin observed him more strictly than other employees,

including by staying at work until Herrera left to make sure that Herrera did not steal any tools,

and taking pictures of him working. (Id. at ¶¶ 25–26; Dkt. 77-1 at 32–33). Herrera also believes

that Gavin did not properly repair a truck, causing Herrera to injure his finger, which Gavin

disputes. (Dkt. 77 ¶ 28). Herrera did not complain to DiMeo Brothers about Gavin’s strict

supervision or botched truck repair. (Id. at ¶¶ 27, 28). On October 17, 2018, Herrera texted Gavin:

“Thanks, T. Greatly appreciated this year. . . . I know I can count on you and Eric to cheer me up

when I’m down. . . . I’m thankful that I found a workplace where I’m happy. God bless. Have a

good night, Bubba.” (Id. at ¶ 29; Dkt. 77-1 at 48).

Herrera claims that his and his wife’s vehicles suffered damage in the DiMeo Brothers

parking lot. (Dkt. 77 ¶ 30). More than once, Herrera found screws in the vehicles’ tires, and he

blames Gavin. (Id. at ¶¶ 31–32, 39). Herrera believes Gavin caused air to leak from his vehicle’s

tire valve because Gavin had the necessary tools and once asked Herrera “how his tire was doing.”

(Id. at ¶¶ 33–34). Further, Herrera believes Gavin threw rocks at his truck. (Id. at ¶¶ 35–38; Dkt.

80 ¶¶ 26–31).1 Underlying Herrera’s belief that Gavin was behind all the vandalism incidents are

Gavin’s questions about citizenship, tattoos, and gang membership. (Dkt. 77 ¶ 39).

On April 5, 2019, Herrera sent John DiMeo a video recording, purportedly showing a rock

damaging his windshield, which John and Mark DiMeo both viewed. (Id. at ¶¶ 40–41). Herrera

also sent John DiMeo a text message about the incident: “Now I’m not saying [Gavin] did it, but

I don’t know who else could have broke my wind screen.” (Id. at ¶ 40). John and Mark DiMeo

reviewed Herrera’s video and did not investigate further. (Dkt. 80 ¶ 31).

On May 16, 2019, Herrera texted John DiMeo saying that he found rocks on the hood of

his car and a crack on his new windshield. (Dkt. 77 ¶ 42). In response, John DiMeo told Herrera

to park his vehicle next to Gavin’s, within view of the company’s security cameras. (Id.) Herrera

also blames Gavin for damaging his truck’s transmission harness on June 13, 2019. (Id. at ¶¶ 43–

44). The same day, Herrera reported the incident to John DiMeo, who asked Gavin if he had

1 Herrera’s truck’s dashboard camera recorded videos capturing noises which Herrera claims are from rocks hitting

his car. (Dkt. 77 ¶¶ 35–38; Dkt. 80 ¶¶ 26–31). In one of these videos, Gavin walks in front of Herrera’s truck about

twenty seconds after a noise occurs. (Dkt. 77 ¶ 38; Dkt. 80 ¶ 27).

damaged the transmission harness. (Id. at ¶ 45). Gavin denied it. (Id.) Indeed, Gavin has denied

ever damaging Herrera’s or his wife’s vehicles. (Id. at ¶ 49). After Herrera complained about the

vandalism, he claims that Mark DiMeo expressed his disbelief, which Mark DiMeo denies. (Id. at

¶ 68). Herrera also claims Mark DiMeo told him to “go work in the field” despite Herrera “having

a finger restriction,” which Mark DiMeo also denies. (Id.)

On June 17, 2019, Herrera claims that Gavin threatened Herrera that he would lose his job

if he continued to complain. (Dkt. 80 ¶ 13). Gavin denies saying this. (Id.) Herrera also claims that

DiMeo Brothers’ superintendent, Pete Volkening, called and told Herrera “to stop complaining

about his vehicle,” which Defendants dispute. (Id. at ¶ 14). Herrera also claims that Mark DiMeo

yelled at him and told him “that if he wanted to lose his job over a truck to go home.” (Id. at ¶ 15).

Mark DiMeo also allegedly said that he would take Gavin’s side “no matter what,” and asked

Herrera if he was trying to “make his guys look bad.” (Id. at ¶¶ 16, 18). Mark DiMeo denies making

these statements. (Id. at ¶¶ 15–16, 18). On a phone call on June 17, 2019, John DiMeo told Herrera

that he “got everybody fired up with [who he thought damaged his vehicles]. Okay? And you’ve

got a person that’s been here since we put up the shop that’s been very loyal to us and that’s a huge

accusation . . . .” (Id. at ¶ 21).

Herrera resigned on June 17, 2019 by texting John DiMeo: “I quit. I’m not going to put up

with harassment.” (Dkt. 77 ¶ 50). Herrera resigned because “nothing was done,” and he believed

that “something worse would happen” if he stayed. (Id. at ¶ 51). The day after he resigned, Herrera

called John DiMeo and said, “I’m not accusing anybody,” and “I’m not saying [Gavin] did it”—

meaning, damaged his or his wife’s vehicles. (Id. at ¶¶ 52–54). During that phone call, John DiMeo

said:

You’ve gotta understand, we’ve worked with [Gavin] for 15 years, we’re gonna

defend him. . . . . I’m not going to take out my best guy that I’ve had you know over

15 years over . . . a rock. . . . We’re running a business here. . . . [H]e’s been here

15 years taking care of our shop for us. So unless if I see his face and arm throw

something at your car, I’m not going to do anything honestly.

(Dkt. 80 ¶ 25).

B. Herrera’s Compensation

At the beginning of Herrera’s employment, DiMeo Brothers agreed to pay Herrera for 40

hours of work per week, even if Herrera worked less. (Dkt. 81 ¶¶ 6–7). DiMeo Brothers also agreed

to pay Herrera overtime when he worked more than 40 hours per week after subtracting hours for

when Herrera arrived at work late or left early. (Id. at ¶ 7). Herrera understood the initial agreement

governing his pay to be temporary. (Dkt. 77-1 at 18). During busier times of year, DiMeo Brothers

agreed to pay Herrera a guaranteed 45 hours per week including five hours of overtime pay. (Id.

at 25; Dkt. 77-4 at 44–45).2

Herrera recorded the number of hours he worked on time sheets and submitted them to

DiMeo Brothers, as the company required. (Dkt. 75 ¶¶ 22, 40; Dkt. 77 ¶ 10).3 Herrera’s hours

varied. (Dkt. 77 ¶ 11). Herrera testified that, when he started the job, Mark DiMeo told him to

write eight hours on his time sheets, which Mark DiMeo denies. (Id.at ¶ 13; Dkt. 77-1 at 18; Dkt.

77-4 at 40). Regardless, Herrera recorded his overtime hours “as a habit.” (Dkt. 77 ¶ 13; Dkt. 77-

1 at 26). DiMeo Brothers’ accountant reviewed Herrera’s time sheets, and Mark DiMeo reviewed

the accountant’s work. (Dkt. 77 ¶ 16). Herrera’s pay stubs reflect the weekly hours for which

DiMeo Brothers paid him. (Id. at ¶ 17).

On January 19, 2018, DiMeo Brothers paid Herrera for 38 hours of work following a pay

period for which Herrera recorded 39 hours of work. (Id.at ¶¶ 25–26; Dkt. 66-6 at 3–4). Similarly,

DiMeo paid Herrera for 40 hours of work on both February 16 and 23, 2018, after Herrera recorded

2 The parties dispute which months comprised DiMeo Brothers’ “busy season.” (Dkt. 81 ¶ 10).

3 The parties dispute whether Herrera recorded his hours accurately. (Dkt. 75 ¶¶ 22–23).

41 hours of work for each of the corresponding pay periods. (Dkt. 75 ¶¶ 27–30; Dkt. 66-6 at 5–8).

The Court’s review of Herrera’s pay stubs and time sheets revealed discrepancies on 27 additional

dates—totaling more than 50 hours that appeared on Herrera’s time sheets but not his pay stubs.

(Dkt. 66-6).4 Defendants dispute that Herrera’s time sheets accurately reflect the number of hours

he worked. (Dkt. 75 ¶¶ 22–23; Dkt. 81 ¶ 9). Sometimes, Herrera arrived late to work or left early,

and the parties dispute whether Herrera recorded hours he did not work. (Dkt. 81 ¶¶ 16–20). On

January 24, 2018, Herrera sent a text message to Gavin saying he “might come in late” but then

recorded and received payment for eight hours for that day. (Id. at ¶ 17). And on June 1, 2018,

Herrera texted Mark DiMeo in the afternoon saying “I’m taking off I’ll makeup [sic] the hours

next week” but recorded and received payment for nine hours for that day. (Id. at ¶ 18).

Herrera also texted Mark DiMeo on February 11, 2019 saying, he needed “to take off early

and make up hours.” (Id. at ¶ 19). Mark DiMeo testified that he accurately reconciled Herrera’s

overtime hours. (Id. at ¶¶ 21). By contrast, Herrera testified that he sometimes recorded fewer

4 On March 2, 2018, Herrera received payment for 40 hours after recording 42. (Dkt. 66-6 at 9–10). On March 23,

2018, Herrera received payment for 40 hours after recording 41. (Id. at 11–12). On March 30, 2018, Herrera received

payment for 40 hours after recording 42. (Id. at 13–14). On April 6, 2018, Herrera received payment for 40 hours after

recording 41. (Id. at 15–16). On April 13, 2018, Herrera received payment for 40 hours after recording 43. (Id. at 17–

18). On April 27, 2018, Herrera received payment for 36 hours after recording 38. (Id. at 19–20). On June 1, 2018,

Herrera received payment for 45 hours after recording 48. (Id. at 21–22). On June 15, 2018, Herrera received payment

for 45 hours after recording 48. (Id. at 23–24). On June 22, 2018, Herrera received payment for 45 hours after recording

46. (Id. at 25–26). On August 3, 2018, Herrera received payment for 45 hours after recording 46. (Id. at 27–28). On

August 10, 2018, Herrera received payment for 45 hours after recording 45.5. (Id. at 29–30). On September 14, 2018,

Herrera received payment for 36 hours after recording 37. (Id. at 31–32). On September 21, 2018, Herrera received

payment for 50 hours after recording 59. (Id. at 33–34). On September 28, 2018, Herrera received payment for 45

hours after recording 46. (Id. at 35–36). On October 5, 2018, Herrera received payment for 45 hours after recording

46. (Id. at 37–38). On October 26, 2018, Herrera received payment for 45 hours after recording 47. (Id. at 39–40). On

February 15, 2019, Herrera received payment for 40 hours after recording 43. (Id. at 41–42). On February 22, 2019,

Herrera received payment for 40 hours after recording 43. (Id. at 43–44). On March 1, 2019, Herrera received payment

for 40 hours after recording 42. (Id. at 45–46). On March 8, 2019, Herrera received payment for 40 hours after

recording 41. (Id. at 47–48). On March 22, 2019, Herrera received payment for 40 hours after recording 42. (Id. at

49–50). On March 29, 2019, Herrera received payment for 40 hours after recording 41. (Id. at 51–52). On April 5,

2019, Herrera received payment for 40 hours after recording 42. (Id. at 53–54). On May 17, 2019, Herrera received

payment for 45 hours after recording 46. (Id. at 55–56). On May 24, 2019, Herrera received payment for 45 hours

after recording 46. (Id. at 57–58). On May 31, 2019, Herrera received payment for 45 hours after recording 47. (Id. at

59–60). On June 14, 2019, Herrera received payment for 45 hours after recording 46. (Id. at 61–62).

hours than he worked. (Dkt. 77-1 at 15–16, 25). Further, Mark DiMeo testified: “We would owe

[Herrera] $120. So divided by his rate would be the actual hours off.” (Dkt. 75 ¶ 39; Dkt. 77-4 at

35). The parties therefore dispute whether DiMeo Brothers paid Herrera for all the hours he worked

or paid Herrera 1.5 times his regular pay rate for his work above 40 hours per week on the

appropriate pay dates. (Dkt. 75 ¶¶ 27–30; Dkt. 80 ¶ 32).5

C. Procedural History

Herrera brought this action on December 19, 2019, (Dkt. 1), and he filed an Amended

Complaint on July 31, 2020 (Dkt. 34). Following the Court’s partial dismissal of certain counts,

(Dkt. 54), the Amended Complaint’s surviving claims against DiMeo Brothers and John DiMeo

are for: discrimination, harassment, and constructive discharge based on ethnicity and national

origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count

I) and the Illinois Human Rights Act (IHRA), 775 ILCS 5/2-101 et seq. (Count II); discrimination

and retaliation in violation of 42 U.S.C. § 1981 (Count IV); failure to pay overtime in violation of

the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. (Count VI) and the Illinois Minimum

Wage Law (IMWL), 820 ILCS 105/1 et seq. (Count VII). (Dkt. 34).6

5 On June 26, 2020, after Defendants learned that Herrera would be bringing a claim for wage violations, DiMeo

Brothers sent Herrera a letter and $3,151.60 in “an effort . . . to rectify any dispute about overtime hours.” (Dkt. 77

¶¶ 63–64; Dkt. 77-2 at 63). With the letter, DiMeo Brothers included a chart showing the difference in hours between

Herrera’s pay stubs and the hours he recorded on time sheets. (Dkt. 77 ¶¶ 65–66; Dkt. 80 ¶¶ 34–35). Defendants

challenge the chart’s admissibility under Federal Rule of Evidence 408. (Dkt. 74 at 12–13; Dkt. 80 ¶¶ 34–37). Rule

408 makes inadmissible evidence of an offer of “a valuable consideration in compromising or attempting to

compromise a claim” or of “conduct or a statement made during compromise negotiations about the claim” “to prove

or disprove the validity or amount of a disputed claim.” Fed. R. Civ. P. 408; Wine & Canvas Dev., LLC v. Muylle,

868 F.3d 534, 540 (7th Cir. 2017) (“[S]tatements made in settlement negotiations are inadmissible to prove liability

on the underlying claim . . . .”). Defendants sent Herrera the letter and accompanying chart as an attempt to settle his

wage claims, and Herrera has offered the evidence only to prove DiMeo Brothers’ liability for the same claims. See

Wine & Canvas, 868 F.3d at 540. Accordingly, the evidence is inadmissible, and Herrera cannot rely on it to show his

entitlement to summary judgment or the existence of a triable issue of fact. See Johnson v. Meyers, 53 F.4th 1063,

1067 (7th Cir. 2022) (“[A] court may consider only admissible evidence in assessing a motion for summary judgment”

(quoting Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009))).

6 Although Herrera’s Amended Complaint names Tim Gavin as a defendant, Herrera stipulated to the dismissal of

Gavin as a defendant on March 9, 2022. (Dkt. 83).

On October 11, 2022, this case was reassigned from the Honorable Robert M. Dow Jr.

(Dkt. 85). Before the Court are the parties cross-motions for summary judgment: Herrera moves

for partial summary judgment on Counts VI and VII, (Dkt. 67), and Defendants move for summary

judgment on all counts. (Dkt. 69).

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A genuine issue of material fact exists when there is “sufficient evidence” for a jury to return

a verdict in favor of the party opposing summary judgment. Birch|Rea Partners, Inc. v. Regent

Bank, 27 F.4th 1245, 1249 (7th Cir. 2022) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986)). On cross-motions for summary judgment, the Court “construe[s] all facts and

inferences in favor of the party against whom the motion under consideration is made.” Markel

Ins. Co. v. Rau, 943 F.3d 1012, 1016 (7th Cir. 2020). “The non-movant must, however, present

specific facts establishing a material issue for trial, and any inferences must rely on more than

mere speculation or conjecture.” Giles v. Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019). The Court

does not “weigh conflicting evidence, resolve swearing contests, determine credibility, or ponder

which party's version of the facts is most likely to be true.” Stewart v. Wexford Health Sources,

Inc., 14 F.4th 757, 760 (7th Cir. 2021).

DISCUSSION

I. Discrimination (Counts I, II & IV)

A. Harassment

To survive summary judgment on a hostile work environment claim under Title VII,

Section 1981, or the IHRA, the “plaintiff must show: (1) unwelcome harassment; (2) based on a

protected characteristic; (3) that was so severe or pervasive as to alter the conditions of

employment and create a hostile or abusive working environment; and (4) a basis for employer

liability.” Demkovich v. St. Andrew the Apostle Par., 3 F.4th 968, 977 (7th Cir. 2021); Mahran v.

Advocate Christ Med. Ctr., 12 F.4th 708, 714 (7th Cir. 2021) (applying the same legal standard to

claims under Title VII, Section 1981 and the IHRA). Courts consider the totality of circumstances

to evaluate a hostile work environment claim, including “the frequency of improper conduct, its

severity, whether it is physically threatening or humiliating (as opposed to a mere offensive

utterance), and whether it unreasonably interferes with the employee’s work performance.” Abrego

v. Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018) (quoting Boss v. Castro, 816 F.3d 910, 919–20 (7th

Cir. 2016)); see also Swyear v. Fare Foods Corp., 911 F.3d 874, 881 (7th Cir. 2018) (“[E]mployers

generally do not face liability for off-color comments, isolated incidents, teasing, and other

unpleasantries that are, unfortunately, not uncommon in the workplace.”).

Herrera’s evidence is insufficient to support the second or third prongs. Herrera leans on a

conversation in which Gavin questioned Herrera about his citizenship, his tattoos, and whether he

was a gang member. Although Gavin’s questions were insensitive, the exchange reflected

“immature and ignorant behavior” at most. See Yancick v. Hanna Steel Corp., 653 F.3d 532, 546

(7th Cir. 2011). Then, Gavin’s use of a derogatory slur in an overheard phone call with another

coworker—an “offensive utterance”—was the only other conduct Herrera points to with any

connection to Herrera’s protected traits. See Abrego, 907 F.3d at 1015. While “[i]ncidents directed

at others and not the plaintiff” may be relevant, “the more remote or indirect the act claimed to

create a hostile working environment, the more attenuated the inference that it had an effect on the

terms and conditions of the plaintiff’s workplace.” Yancick, 653 F.3d at 545 (citations omitted).

Although troubling, Gavin’s use of a slur toward someone other than Herrera did not alter

Herrera’s working conditions. See id. These two “isolated incidents,” together with Gavin’s strict

supervision of Herrera, do not paint a picture of severe or pervasive harassment. See Swyear,

911 F.3d at 881.

Nor can Herrera rely on these two incidents to color the remainder of Gavin’s conduct as

discriminatory. “[A]lleged harassment must be sufficiently connected to race before it may

reasonably be construed as being motivated by the defendant’s hostility to the plaintiff’s race.”

Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154, 1160 (7th Cir. 2014) (quoting Beamon v. Marshall

& Ilsley Tr. Co., 411 F.3d 854, 863–64 (7th Cir. 2005)) (affirming summary judgment against

plaintiff where “only two of the incidents that she offered into evidence ha[d] any relation

whatsoever to her national origin”); see also Gosey v. Aurora Med. Ctr., 749 F.3d 603, 605 (7th

Cir. 2014) (ruling that the plaintiff’s “inability to point to evidence suggesting that the harassment

was based on her race is fatal to her claim”).

Even assuming Herrera’s evidence is sufficient to suggest that Gavin damaged his vehicles

several times over the course of two years,7 Herrera has not “sufficiently connected” these

incidents of vandalism to Gavin’s hostility toward his protected traits. See Zayas, 740 F.3d at 1160.

Considering the totality of circumstances, Herrera’s evidence cannot support a reasonable jury

finding that Gavin’s conduct amounted to severe or pervasive harassment based on Herrera’s

ethnicity or national origin.8 Thus, Herrera’s harassment claims do not survive summary judgment.

7 To the extent Herrera blames Gavin for these incidents because of his offensive questions about citizenship, tattoos,

and gang membership, the inference is speculative at best. See Giles, 914 F.3d at 1048. Only two of the incidents have

further evidentiary support. First, one of Herrera’s dashboard camera videos shows that Gavin was in the area when a

noise occurred, which Herrera claims was a rock hitting his car. Second, Gavin asked Herrera about his tire after the

tire valve was damaged. Nonetheless, the inference that Gavin threw rocks at Herrera’s car or damaged his tire valve

is speculative.

8 The parties argue over whether Gavin was Herrera’s supervisor. (Dkt. 72 at 10–12; Dkt. 78 at 13–14). Even assuming

Herrera’ evidence creates a genuine dispute of fact on this issue, the harassment claims cannot survive.

B. Disparate Treatment

Nor has Herrera raised any triable issues of fact as to his direct discrimination claims.9 A

plaintiff may defeat summary judgment by making out a prima facie case under the McDonnell

Douglas framework—showing “(1) he belongs to a protected class; (2) he met his employer’s

legitimate expectations; (3) he suffered an adverse employment action; and (4) another similarly

situated employee outside of his protected class received better treatment from his employer.”

Igasaki v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 957 (7th Cir. 2021) (quoting Marshall v.

Ind. Dep’t of Corr., 973 F.3d 789, 791–92 (7th Cir. 2020)); see also Bagwe v. Sedgwick Claims

Mgmt. Servs., Inc., 811 F.3d 866, 879 n.39 (7th Cir. 2016) (noting that the analytical framework

for claims under Title VII, Section 1981 and the IHRA is “essentially identical” (quoting Brown

v. Advoc. S. Suburban Hosp., 700 F.3d 1101, 1104 n.1 (7th Cir. 2012))).

Yet, using the McDonnell Douglas framework to oppose summary judgment is optional:

according to Ortiz, the determinative question is “whether a reasonable jury could conclude that

the plaintiff suffered the adverse employment action because of his membership in a protected

class.” Reives v. Ill. State Police, 29 F.4th 887, 892 (7th Cir. 2022) (quoting Ortiz v. Werner

Enterprises, Inc., 834 F.3d 760, 763–64 (7th Cir. 2016)). Whether proceeding under McDonnell

Douglas or Ortiz—and Herrera tries both—his claims fall short.

9 The Court notes that Defendants’ treatment of Herrera’s direct discrimination claims is cursory—almost to the point

of waiver. Within the section of its brief discussing Herrera’s harassment claim, Defendants argue: “Plaintiff cannot

establish that a reasonable jury would conclude Gavin’s actions created a ‘convincing mosaic of circumstantial

evidence’ supporting an inference of intentional discrimination.” (Dkt. 72 at 9 (quoting Davis v. Time Warner Cable

of Se. Wis., L.P., 651 F.3d 664, 672 (7th Cir. 2011)). But “‘convincing mosaic’ is not a legal test.” Ortiz v. Werner

Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). Although Defendants expand on the argument with respect to

Herrera’s intentional discrimination claims in reply to Herrera’s response, (Dkt. 79 at 3–6, 12), they offer scant legal

authority to support their arguments (Dkt. 72 at 7–14; Dkt. 79 at 3–6, 12). The Court has no obligation “to research

and construct the legal arguments open to parties.” Riley v. City of Kokomo, 909 F.3d 182, 190 (7th Cir. 2018) (quoting

Beard v. Whitley Cnty. REMC, 840 F.2d 405, 408–09 (7th Cir. 1988)). So when parties fail to develop an argument,

the result is often waiver. See Riley, 909 F.3d at 190. Nonetheless, the Court will resolve Defendants’ motion on

Herrera’s intentional discrimination claims because the record is clear, and Herrera’s substantive response opposing

summary judgment on these claims shows that he had fair notice that the claims’ survival is at stake.

Under McDonnell Douglas, the fourth element requires a showing that the plaintiff

received less favorable treatment “than a similarly situated employee outside his protected class.”

Id. at 892. A similarly situated employee “need not be identical in every conceivable way,” but

they “must be ‘directly comparable’ to the plaintiff ‘in all material respects.’” Id. (quoting

Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012)). Opposing summary judgment, Herrera

argues “that others outside of his protected class were treated more favorably than [him].” (Dkt.

78 at 14). The two paragraphs Herrera cites in support of this conclusion do not support his claim.

Those paragraphs state that: (1) Gavin used an ethnic slur; and (2) John DiMeo expressed his

loyalty toward Gavin on the phone with Herrera following his resignation. (Dkt. 80 ¶¶ 6, 25).

Herrera fails to point to any similarly situated employee outside of his protected class. For

example, Herrera claims that Gavin supervised him more strictly than other employees, but he has

not introduced evidence that any of the employees who received more lenient supervision were

outside of Herrera’s protected class and otherwise “directly comparable” to him “in all material

respects.” See Reives, 29 F.4th at 892. Accordingly, Herrera cannot make out a prima facie case.

Considering the evidence holistically, according to Ortiz, Herrera’s disparate treatment

claims fare no better. The evidence on the record would not permit a reasonable jury to find that

Herrera suffered an adverse employment action because of his ethnicity or national origin. See

Reives, 29 F.4th at 893–94. Gavin’s insulting questions on one occasion and his use of a slur

toward another coworker are the only pieces of evidence implicating Herrera’s ethnicity or national

origin. But there is no other evidence that would allow a jury to find a link between these troubling

instances and any adverse employment action. Thus, Herrera’s disparate treatment claims fail.

C. Retaliation

To survive summary judgment on a Section 1981 retaliation claim, the plaintiff must show

“that (1) he engaged in statutorily protected activity; (2) his employer took a materially adverse

action against him; and (3) the adverse action was caused by the protected activity.” Miller v. Chi.

Transit Authority, 20 F.4th 1148, 1155 (7th Cir. 2021). Herrera’s claim hits a wall on the first

element.

Complaining is not a protected activity unless the complaints have a connection to a

protected characteristic such as ethnicity or national origin. Id. (“Merely complaining in general

terms of discrimination or harassment, without indicating a connection to a protected class or

providing facts sufficient to create that inference, is insufficient.” (quoting Tomanovich v. City of

Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006))). None of Herrera’s complaints about Gavin’s

conduct indicated a connection to Herrera’s ethnicity or national origin. For example, Herrera

conveyed Gavin’s questions about citizenship, tattoos, and gang membership to John DiMeo by

asking whether Gavin “would always ask those type of questions”—failing to suggest that Herrera

perceived a connection between the questions and his protected traits. (Dkt. 77 ¶ 22; Dkt. 77-1 at

28–29). Nor did Herrera’s complaints about vandalism attribute any of Gavin’s alleged misconduct

to Herrera’s ethnicity or national origin. See Miller, 20 F.4th at 1155. Since a reasonable jury could

not find that Herrera engaged in statutorily protected activity, his retaliation claim fails.

D. Constructive Discharge

There are two ways for a plaintiff to show constructive discharge. Scaife v. U.S. Dep’t of

Veteran Affairs, 49 F.4th 1109, 1119 (7th Cir. 2022). The first way is to “demonstrate a

discriminatory work environment even more egregious than the high standard for hostile work

environment.” Id. (quoting Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008)). The

failure of Herrera’s hostile work environment claim therefore dooms his constructive discharge

claim under this higher standard. See id.

The second way to prevail on a constructive discharge claim is no more availing: it requires

the plaintiff to show that he had to resign because his “working conditions [became] so intolerable

that a reasonable person would have felt compelled to resign.” Id. (quoting Stamey v. Forest River,

Inc., 37 F.4th 1220, 1225 (7th Cir. 2022)). Working conditions are intolerable where an employer

effectively communicates “to a reasonable employee that [he] will be terminated,” and he resigns.

Id. (quoting Fischer, 519 F.3d at 409). Put differently, the employer’s conduct must have

suggested that “‘the handwriting [was] on the wall’ and the axe was about to fall.” Id. (quoting

Fischer, 519 F.3d at 409). Herrera resigned because “nothing was done,” and he believed that

“something worse would happen” if he did not resign. (Dkt. 77 ¶ 51). Herrera has not produced

any evidence suggesting that DiMeo Brothers forced him out or intimated that the handwriting of

his termination was on the wall. See id. Thus, neither method of proving constructive discharge

presents a path to victory for Herrera.

Defendants are entitled to summary judgment on Counts I, II, and IV. The Court turns next

to the parties’ cross-motions for summary judgment on Herrera’s wage claims.

II. Wage Violations (Counts VI & VII)

As to both parties’ motions on Herrera’s wage claims, genuine factual disputes preclude

summary judgment. The FLSA and IMWL provide that “no employer shall employ any of his

employees . . . for a workweek longer than forty hours” without paying the employees overtime

pay. 29 U.S.C. § 207(a); 820 ILCS 105/4a(1); Urnikis-Negro v. Am. Fam. Prop. Servs., 616 F.3d

665, 672–73 & n.3 (7th Cir. 2010) (analyzing FLSA and IMWL claims together). The employee

“has the burden of proving that he performed work for which he was not properly compensated.”

Melton v. Tippecanoe County, 838 F.3d 814, 818 (7th Cir. 2016). If the employee alleges the

employer kept inaccurate records, he must “prove[] that he has in fact performed work for which

he was improperly compensated and . . . produce[] sufficient evidence to show the amount and

extent of that work as a matter of just and reasonable inference.” Id. (quoting Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded on other grounds by 29 U.S.C.

§§ 251–62)). Then, the burden “shifts to the employer to come forward with evidence of the precise

amount of work performed or with evidence negative to the reasonableness of the inference to be

drawn from the employee’s evidence.” Id. (quoting Anderson, 328 U.S. at 687–88).

Herrera points to three instances where his pay stub showed that he received compensation

for one hour less than he recorded on his time sheet for the corresponding pay period. (Dkt. 75

¶¶ 25–30). Herrera claims that the three instances are “examples” of the “multiple occasions” on

which he received improper compensation, (Dkt. 75 ¶¶ 24–30), citing generally to 36 pay stubs

and corresponding time sheets. (See Dkt. 66-6). The Court is “not required to scour the record

looking for factual disputes . . . [or] to piece together appropriate arguments,” D.Z. v. Buell,

796 F.3d 749, 756 (7th Cir. 2015) (quoting Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th

Cir. 1995))). Yet, discrepancies jump off the page: in addition to the three dates Herrera noted, the

Court’s review of Herrera’s pay stubs and time sheets revealed discrepancies on an additional 27

pay dates. (Dkt. 66-6 at 9–62). In total, Herrera has produced evidence showing that over 50 hours

recorded on his time sheets were absent from his pay stubs. Herrera has also pointed to Mark

DiMeo’s testimony that DiMeo Brothers “owe[s] [Herrera] $120”—suggesting that the company’s

accounting was not airtight. (Dkt. 75 ¶ 39; Dkt. 77-4 at 35). In total, Herrera’s evidence supports

a “just and reasonable inference” that Herrera received improper compensation, satisfying his

initial burden. See Melton, 838 F.3d at 818.10

Then, although Defendants have shown two instances where Herrera sent messages

indicating that he intended to work fewer hours than the number he recorded and received payment

for, Defendants have not demonstrated the precise amount that Herrera worked or negated the

reasonableness of the inference that Herrera received improper compensation. Moreover,

Defendants’ reliance on Turner v. The Saloon, 595 F.3d 679 (7th Cir. 2010), is inapposite. (See

Dkt. 74 at 11). The plaintiff in Turner provided no support for his claim that his employer

improperly compensated him—relying solely on his own say-so. Id. at 690–91. Here, by contrast,

Herrera supports his claim with evidence of discrepancies between his time sheets and pay stubs

and testimony by Mark DiMeo that DiMeo Brothers owes Herrera money. Thus, the wage claims

arrive at a standstill: there are disputed material facts as to whether Herrera’s time sheets were

accurate or whether DiMeo Brothers properly reconciled Herrera’s compensation for the days he

arrived late or left early.

In their response brief opposing Herrera’s motion, Defendants assert that DiMeo Brothers

paid Herrera appropriately using the fluctuating workweek (FWW) method. (See Dkt. 74 at 9–11).

This argument is unconvincing. The FWW method provides an alternative method of calculating

overtime. When it applies, it allows employers to pay employees with fluctuating workweeks half-

time instead of time-and-one-half overtime. See 29 C.F.R. § 778.114(a); 56 ILAC § 210.430(f);

Heder v. City of Two Rivers, 295 F.3d 777, 779 (7th Cir. 2002). But the FWW method does not

10 As noted above, Herrera cannot prove DiMeo Brothers’ liability by relying on the spreadsheet that DiMeo Brothers

created and sent him as part of its effort to settle these claims. (See Dkt. 68 at 4–5; 82 at 3); Fed. R. Evid. 408. Nor

can Herrera rely on new evidence submitted for the first time in his reply brief to which Defendants have had no

opportunity to respond. (See Dkt. 82 at 4); Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC, 950 F.3d

959, 969 (7th Cir. 2020 (“Where new evidence is presented in a reply to a motion for summary judgment, the district

court should not consider the new evidence without giving the movant an opportunity to respond.” (citation omitted)).

apply here. “Fluctuating” is a technical term: to fit the bill, an employee must “receive[] a fixed

salary no matter how many hours the work requires that week. ... The salary is not diminished

even if the number of hours falls below 40, nor is the employee expected to make them up in the

future.” Heder, 295 F.3d at 779-80; see also Unrikis-Negro, 616 F.3d at 683. Here, Herrera’s pay

stubs show that he received compensation for fewer than 40 hours of work on January 19, 2018,

April 27, 2018, and September 14, 2018. (Dkt. 66-6 at 3-4, 19-20, 31-32). Since DiMeo Brothers

did not pay Herrera a fixed salary regardless of the hours he worked, the FWW method is of no

use to Defendants. See Heder, 295 F.3d at 779-80.

Thus, neither party has shown their entitlement to judgment as a matter of law based on

the undisputed facts. Rather, the presence of disputed material facts makes summary judgment as

to Counts VI and VII inappropriate.

CONCLUSION

For the reasons above, Herrera’s motion for partial summary judgment is denied, (Dkt. 67),

and Defendants’ motion for summary judgment is granted in part and denied in part. (Dkt. 69).

Herrera’s discrimination claims in Counts I, H, and IV fail. His wage claims in Counts VI and VII

survive.

cD oo

Aepaenial ental

ihe M. Ketrdall <5!

Jnjted/States District Judge

Date: March 16, 2023

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