Opinion
No. 2:03-cv-438 PS.
January 3, 2005
ORDER
Plaintiff, Marina Miklusak, brought this action pursuant to 42 U.S.C. § 1983 against her former employer, the City of East Chicago (the "City") and Mayor Robert Pastrick, for alleged sex (gender) discrimination and racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Miklusak also alleges that the City violated her First and Fourteenth Amendment rights by also discharging her because of complaints she made regarding both the alleged unlawful discrimination and a City practice requiring department heads to sell political fundraising. This matter is before the Court on the Defendants' Motion for Summary Judgment. Because there are genuine issue of material fact with respect to some of Plaintiff's claims, the Defendants' Motion is granted in part and denied in part.
I. FACTS
The City originally hired Miklusak as a bookkeeper for the Parks and Recreation Departments on July 19, 1976. Over the years, Miklusak took on additional responsibilities with the city until 1994 at which time she was hired as the Director of Bus Transit Department (the "Transit Department") — the position that she held until her termination. Miklusak was the first Hispanic female to hold this position.
A. Past Incidents of Alleged Discrimination
Miklusak alleges that during her tenure with the Transit Department she was discriminated against on the basis of both her gender and her race. She points to a variety of incidents from the time she took the Director of Bus Transit Department position until she was terminated to support her claim.
First, Miklusak claims that she was initially denied equal pay with her male counterparts. At the time she was hired, Pastrick promised Miklusak pay commensurate with the previous director, a male. Nevertheless, Miklusak did not receive equal pay (Plf. Resp. Ex. 1 and 2). In 2000, Miklusak complained to both Anthony Mrvan, Director of Personnel, and Timothy Raykovich, Special Assistant to the Mayor, about her pay situation. (Miklusak Dep. at 124). At the meeting, Miklusak presented Raykovich with numbers indicated that her male counterparts were paid more than she was. (Id.; Plf. Resp. Ex. 1 and 2). Although the Company gave Miklusak additional raises, Miklusak insists that the Company did nothing in response to her complaints. (Miklusak Dep. at 126).
Second, Miklusak alleges that Raykovich was generally abusive towards her in meetings. Specifically, Raykovich would not allow her to speak and would yell at her to be quiet. (Id. at 51-53, 56-57). Raykovich would also ask Miklusak questions, but would cut her off before she had fully responded. (Id. at 53-4, 56, 61). In addition, Raykovich would hold Miklusak accountable for incidents that were beyond her control. For example, while waiting for a monthly meeting of department heads in Pastrick's office, Pastrick called Miklusak into his office for a private meeting. (Id. at 57-61). Upon her late arrival at the department heads meeting, Raykovich stared at her in a manner that Miklusak regarded as abusive given Raykovich's other conduct to her. (Id.).
Finally, Miklusak alleges two incidents of sexual harassment by Bob Hoggs, the Mayor's Chief of Staff. In the first incident, Hoggs threatened to take away Miklusak's city vehicle when she refused to give a second vehicle, one purchased for use by bus drivers during shift change, to her assistant, Frank Rosado. (Id. at 74-78). In the second incident, Hoggs blamed Miklusak for double-payment to a vendor. Miklusak complained to Raykovich about both instances. (Id. at 83-86).
B. Political Fundraising Complaints
In addition, Miklusak alleges that her termination was, in part, retaliation for her complaints about City political fundraising requirements. Miklusak alleges that in September 2001 she complained to Mrvan about the expectation that she sell political fund-raising tickets to vendors that did business with her department. Miklusak was given an allotment of tickets ranging in price from $50 to $5,000 during each election. Miklusak complained to Mrvan that she did not have any vendors to whom she could sell the tickets because, as of 2001, she no longer made purchasing decisions for her department. (Id. at 112-14). Shortly thereafter, Mrvan denied Miklusak permission to attend a conference in Las Vegas. (Id. at 113). Two or three weeks later, Mrvan relented and approved Miklusak's request to attend the conference. However, Miklusak was terminated prior to the conference. (Id. at 115-17, 120-22).
C. Miklusak's Termination
Miklusak's rocky relationship with the City and with Raykovich in particular came to a head in a meeting on May 20, 2002. Miklusak met with Raykovich and Director of Fleet Maintenance Cesar Perez to obtain specific information for Perez which she needed to complete state and federal reports. (Id. at 164). Also present at the meetings were Director of Finance, George Weems; City Controller, Edward Moldanodo; Chief of Staff, Robert Hoggs; and Deputy Controller, Kim Anderson. (Id. at 164-65). While there were no less than seven people at the meeting, the only evidence provided to the Court of what occurred that day are given by Raykovich and Miklusak. Neither the City nor Miklusak submitted affidavits or testimony of any of the other individuals present at the May 20, 2002 meeting. According to Miklusak, Raykovich asked Perez questions and allowed Perez ample opportunity to respond to those questions. (Id. at 65-66). In contrast, Raykovich would not allow Miklusak to speak or respond to questions, but instead stood and yelled at Miklusak. (Id. at 167-68). In response, Miklusak stood and gathered her papers to leave the room. (Id. at 168-69). According to Miklusak, Raykovich then yelled at her to "sit down" and "come back here." (Id.). Miklusak then left the meeting. (Id.).
Ten days later, on May 30, 2002, Miklusak received a notice of termination. (Plf. Resp. Ex. 5). The notice of termination did not give Miklusak a reason for the termination. Moreover, when she went to pick up her last paycheck, she asked Anthony Mrvan, the Director of Personnel Services, why she was fired; he refused to tell her.
The City apparently disputes Miklusak's account of her firing. However, the City's inconsistent arguments and contradictory factual statements make it nearly impossible for the Court to understand the City's interpretation of the events. First, the City claims that Miklusak, in effect, quit. (Plf. Resp. Ex. 6 at Interrogatory 4). Purportedly, Raykovich warned Miklusak at the May 20, 2002 meeting that if she left, it would be considered a resignation. (Id.). Then, the City claims that actually Miklusak was fired. (Id. at Interrogatory 6; Def. Mot. at 4; Def. Reply at 1). Although it now appears that the City admits to terminating Miklusak, it still cannot state how or when the decision to terminate was made. On one hand, the City states that the decision to terminate Miklusak was made by Raykovich and Mayor Pastrick on May 30, 2002. (Plf. Resp. Ex. 6 at Interrogatory 4). Indeed, the City goes so far to argue that the "uncontested facts show that May 30th is the date when Raykovich first informed the Mayor about Miklusak's insubordination." (Def. Reply at 4). However, in his affidavit appended to the City's Brief as Exhibit 4, Raykovich states that he reported Miklusak's behavior at the May 20, 2004 meeting "later that day," implying that he actually spoke to Mayor Pastrick on May 20, 2004. (Raykovich Aff. at ¶ 8; Def. Brief at 4). Further, the City continued to pay Miklusak until May 30, 2004 and did not limit her access to her office or any other City buildings until she received her termination notice on May 30, 2004. Thus, the City's account of events, by itself, raises significant unresolved factual questions.
II. DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, 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). The party seeking summary judgment carries the initial burden of demonstrating an absence of evidence to support the position of the non-moving party. Doe v. R.R. Donnelley Sons, Co., 42 F.3d 439, 433 (7th Cir. 1994). The non-moving party must then set forth specific facts showing there is a genuine issue of material fact and that the moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
In making this determination, the Court must draw every reasonable inference from the record in the light most favorable to the non-moving party. Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The non-moving party must support its contentions with admissible evidence and may not rest upon mere allegations in the pleadings or conclusory statements in affidavits. Celotex, 477 U.S. at 324. The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to its case on which the party will bear the burden of proof at trial. The production of only a scintilla of evidence will not suffice to oppose a motion for summary judgment. Anderson, 477 U.S. at 252. Employment discrimination cases, while often turning on factual questions, are nonetheless amendable to summary judgment when there is no genuine dispute of material fact or there is insufficient evidence to demonstrate the presence of the alleged motive to discriminate. Cliff v. Board of School Comm'r of City of Indianapolis, Ind., 42 F.3d 403, 409 (7th Cir. 1994).
A. Sex/Race Discrimination
Miklusak asserts discrimination and hostile work environment claims based on race and sex under Section 1983. Miklusak first maintains that the City terminated her because of her race and/or gender. In addition, she claims she was subject to a hostile work environment apparently throughout her term as Director of Transportation.
1. Termination Claims
Miklusak alleges sex and race discrimination under the Equal Protection Clause of the Fourteenth Amendment. Equal protection claims alleging a violation of the Fourteenth Amendment based on sex and race brought pursuant to 42 U.S.C. § 1983 are analyzed in the same way as a Title VII claim. Williams v. Seniff, 342 F.3d 774, 788 n. 13 (7th Cir. 2003); McPhaul v. Bd. of Comm'rs of Madison County, 226 F.3d 558, 564 (7th Cir. 2000). A plaintiff seeking to prove such discrimination may either offer direct or circumstantial evidence of discrimination or provide indirect evidence through the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Lim v. Trs. of Ind. Univ., 297 F.3d 575, 580 (7th Cir. 2002). Miklusak offers no direct or circumstantial evidence that she was terminated because of her gender or her race and so we examine her claims under the McDonnell Douglas burden-shifting framework.
Under McDonnell Douglas, a plaintiff establishes a prima facie case of sex discrimination if she demonstrates that: (1) she is a member of a protected class; (2) she was meeting her employer's legitimate employment expectations; (3) in spite of meeting the legitimate employment expectations of her employer, she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated male employees. Markel v. Bd. of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir. 2002). If an employer articulates a legitimate non-discriminatory reason for an adverse employment action, then the employee must show that the employer's reason was pretextual. Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir. 1999).
In its briefing, the City surprisingly does not argue that Miklusak cannot meet the four-factor prima facie test. Indeed, the City concedes the prima facie case and merely argues that the City had a legitimate, non-discriminatory for terminating Miklusak after she left the May 20, 2002 meeting. Particularly, the City claims that Miklusak was insubordinate because she left the May 20, 2002 despite specific direction from Raykovich to remain. Thus, the burden shifts to Miklusak to provide evidence that the City's proffered reason for her termination was pretextual.
In order to show a genuine issue of material fact in the pretext context, a plaintiff must show either 1) it is more likely that a discriminatory reason motivated the employer's actions than the suggested non-discriminatory reason; or 2) that an employer's explanation is not credible. Hudson v. Chicago Transit Authority, 375 F.3d 552, 561 (7th Cir. 2004). The Court will not sit as a "superpersonnel department" to second-guess an employer's explanation for its actions. Id. Instead, we address "whether the employer gave an honest explanation of its behavior." Id. (internal quotations omitted).
In this case, Miklusak has raised a genuine issue of material fact by demonstrating that the City's explanation of its decision to terminate her may not be credible. First, we note that the City itself seems unable to get its story straight. In its response to interrogatories they first state that Plaintiff "quit." (Plf. Resp. Ex. 6 at Interrogatory 4). Two questions later, they state that Plaintiff was terminated. (Id. at Interrogatory 6). "Answers to interrogatories are evidence." Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 679 (7th Cir. 2003). Assuming that the City now believes Miklusak was terminated, it still cannot decide whether that decision was made on May 20, 2002 or May 30, 2002. ( Compare Def. Brief at 4, stating Miklusak was terminated on May 20th, with Def. Reply at 4, stating that Miklusak was terminated on May 30th). Moreover, the City never told Miklusak why she was being terminated until after she filed this lawsuit, and a jury could infer pretext from this. Zaccagnini, 338 F.3d at 678 ("failure to come forward with explanation earlier makes it not credible"). Clearly, the City's own internal inconsistencies suggest that its proffered reason for terminating Miklusak may not be credible. Finally, the City does not submit an affidavit from any of the four other people at the May 20, 2002 meeting to support its accounts of events. These failings by the City, while certainly not conclusive evidence that the actual reason for Miklusak's termination was her gender or race, do raise enough questions to suggest that "the employer's explanation is not credible." Hudson, 375 F.3d at 561.
As a result, we find a number of questions of material fact, including but not limited to:
1. Did the City consider Miklusak to have resigned when she left the May 20, 2002 meeting?
2. If so, why did the City continue to pay Miklusak until May 30, 2002 and/or allow Miklusak access to her office?
3. Was Miklusak insubordinate when she left the May 20, 2002 meeting?
4. Was the decision to terminate Miklusak made on May 20, 2002 or May 30, 2002?
5. Did the City provide Miklusak with any reason for her termination?
6. Were the reasons given for her termination a pretext for discrimination?
Because we find that there are several questions of fact that only a jury can resolve, summary judgment on the termination claim against the City and Pastrick must be denied.
2. Hostile Work Environment
Miklusak also bring a claim for hostile work environment. However, in her response to summary judgment, there is nary a word about it. See e.g., Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996) (plaintiff abandoned claim after failing to respond to argument in motion for summary judgment). Even though Plaintiff failed to address the hostile work environment claim in her response to summary judgment, we will nonetheless analyze this claim.
To establish a prima facie case of hostile work environment sexual harassment, a plaintiff must demonstrate that: (1) she was subjected to unwelcome sexual harassment; (2) the harassment was based on sex; (3) the sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile or offensive working environment that affected seriously the psychological well-being of the plaintiff; and (4) there is a basis for employer liability. Robinson, 351 F.3d at 328-29; see also Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). The third prong of the prima facie case requires both a subjective and objective inquiry, requiring the court to ask whether a reasonable person would find the environment hostile. Robinson, 351 F.3d at 329.
For workplace conduct to constitute an actionable hostile work environment, the harassment "must be sufficiently severe or pervasive `to alter the conditions of [the plaintiff's] employment and create an abusive environment.'" Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (citation omitted). The objective test is measured by a reasonable person's perception of 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 interferes with an employee's work performance." Harris v. Forklift Sys, Inc., 510 U.S. 17, 21 (1993); Herron v. Daimler Chrysler Corp., 388 F.3d 293, 303 (7th Cir. 2004) (applying factor to hostile work environment claim based on race discrimination).
Distinguishing a workplace that is truly hostile from one that is merely unpleasant can be difficult. "Not every unpleasant workplace is a hostile environment. The occasional vulgar banter, tinged with sexual innuendo, or coarse or boorish workers would be neither pervasive nor offensive enough to be actionable. The workplace that is actionable is the one that is hellish." Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003) (quotation omitted). In Rogers, the Seventh Circuit held that the plaintiff, a female police officer, could not establish an objectively severe environment even though a Sergeant at the station commented that he would "like to be that [book] in [her] back pocket"; told her "your breasts look nice in that turtleneck"; interfered with her response to calls and preparation of reports; and instructed her to put a document in a box, stating "put this in the bin so I can watch you walk over and put it in." Id. at 750. The Court found that the incidents of harassment were not egregious enough to constitute a hostile work environment because the plaintiff could "prove little more than that she encountered a number of offensive comments over a period of several months." Id. at 753.
Here, a close examination of the record reveals that Miklusak cannot establish that she worked in an objectively hostile environment or that she was harassed because of her sex or race. Indeed, Miklusak cannot even point to a specific incident that was overtly or impliedly sexual or racial in nature. Instead, the crux of her position appears to be that Raykovich was merely consistently "mean" to her. Miklusak then concludes that his motivation must have been sexual or racial. Based on the evidence before it, this Court cannot conclude that a reasonable person would view Miklusak's workplace as abusive. That is, while Miklusak's rocky relationship with Raykovich suggests that she certainly experienced a less than pleasant work environment, a reasonable person would not construe the environment to be so hostile that it had the effect of unreasonably interfering with her work. Accordingly, the Court must grant summary judgment on Miklusak's hostile work environment claim.
B. First Amendment Claim
Miklusak also alleges that the City violated her First Amendment rights by discharging her in retaliation for complaining about unlawful discrimination and for speaking up in opposition to the requirement that she sell political fundraising tickets. Because Miklusak complained primarily out of self-interest, she cannot maintain a First Amendment claim.
A Section 1983 claim for a First Amendment violation requires a three step inquiry by the court. First, the plaintiff must show that she was engaged in constitutionally protected speech. Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999). Second, she must show that the defendant's actions were motivated by her protected speech. Id. Finally, if the plaintiff can show that her protected speech was a substantial or motivating factor in the defendant's actions, the defendant is given the opportunity to demonstrate that it would have taken the same action in the absence of the plaintiff's exercise of her rights under the First Amendment. Id.
The first step of this analysis is a question of law for the court and requires the application of the two-part Connick-Pickering test. Id. First, the court must determine if the plaintiff's speech was a matter for public concern. Id. ( citing Connick v. Myers, 461 U.S. 138, 147-48 (1983)). If a plaintiff is able to show that it was, she must then show that "the interests of the [plaintiff], as a citizen, in commenting upon matters of public concern" outweigh "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. ( citing Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 568 (1968)). The Seventh Circuit has offered additional guidance, stating that
speaking up on a topic that may be deemed one of public importance does not automatically mean the employee's statements address a matter of public concern as that term is employed in Connick. Rather, we must instead delve deeper into the precise content, form, and context of speech that admittedly may be of some interest to the public. As the district court recognized, it is necessary to look at the point of the speech in question: was it the employee's point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?Kokkinis, 185 F.3d at 844. (internal quotation marks and citations omitted).
Here, Miklusak's complaints all appear to further her purely private interest. First, Miklusak's complaints about allegedly unlawful discrimination were made solely in the interest of rectifying her private situation. Miklusak did not complain to anyone other than Raykovich and Mrvan regarding her pay situation or her encounters with Hoggs. Indeed, Miklusak does not appear to have even complained to Pastrick about her relationship with Raykovich.
In Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989), the court found that a plaintiff's complaints about sexual harassment to two of her supervisors was not a matter of public concern. The court reasoned that she complained solely to resolve a personal problem — to have the sexual harassment stopped. In contrast, the court found that when the same plaintiff brought these problems to the attention of a newspaper, she may have been trying to notify the citizens of her county to sexual harassment problems in her department. On those grounds, the court found that the plaintiff did state a viable § 1983 claim.
Miklusak's complaints are much closer to those that the Gray court found not to state a § 1983 claim, as it appears that she was only trying to resolve her problems in the office, not to alert the public to a serious problem within the Transit Department.
Miklusak's complaints about selling fundraising tickets are similarly self-interested. Here, the root of Miklusak's complaint is not that she was required to sell the tickets in the first instance, but rather that she did not have any vendors to whom she could sell the tickets. She does not complain that the requirement was unethical or in any other way nefarious. Instead, Miklusak merely complains that she could not find anyone to buy her allotment of tickets. Further, Miklusak's complaints were made to Mrvan privately. Miklusak does not point to any attempt to alert outsiders to the political fund-raising requirement with which she takes issue. As such, her complaints were clearly designed to remedy her personal situation rather than to alert the public to potential governmental wrong-doing.
Not only does Miklusak fail to establish that her speech was constitutionally protected, but Miklusak also fails to demonstrate that the City's actions were motivated by her complaints. Prong two of the three-prong First Amendment analysis requires Miklusak to establish by a preponderance of the evidence that a motivating factor in the City's action was retaliation. Spiegla v. Hull, 371 F.3d 928, 941(7th Cir. 2004). One way to determine whether or not retaliation was a motivating factor is to review the amount of time between the adverse action and the protected activity. Id. at 943 ("It is settled in this Circuit that a plaintiff may establish . . . a causal link between protected expression and adverse actions through evidence that the [adverse action] took place on the heels of the protected activity.") (internal quotations and citations omitted).
Here, Miklusak presents no evidence that her allegedly protected speech was a motivating factor in the City's decision to terminate her. Miklusak's alleged complaints about salary discrepancies, the apparent basis of her complaints about illegal discrimination, occurred two years prior to her termination. Indeed, the City did not fire her after she made these complaints. Instead, they gave her a series of successive raises. Moreover, Miklusak's complaints about selling political fundraising tickets occurred more than six months prior to her termination. Although Miklusak claims that initially Mrvan denied her request to attend a conference in response to her complaints, she admits that Mrvan relented and approved her conference request. There is no indication in the record that Miklusak's May 20, 2002 termination, made six months after her complaints and well after her conference attendance request was approved, was at all based upon her complaints.
Miklusak cannot establish that she engaged in constitutionally protected speech with respect to either the alleged illegal discrimination or the fundraising requirement. However, even if she could, Miklusak cannot establish that the City's actions were in retaliation for her complaints. Therefore, the City's Motion for Summary Judgment with respect to Miklusak's First Amendment claim is granted.
III. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is granted and part and denied in part as follows:
1) The Defendants' Motion regarding Plaintiff's termination claims is DENIED;
2) The Defendants' Motion regarding Plaintiff's hostile work environment claims is GRANTED; and
3) The Defendants' Motion regarding Plaintiff's First Amendment claims is GRANTED.
SO ORDERED.