Opinion
00 C 6571
April 19, 2002
Defendant Carmichael Leasing Co., Inc. ("Carmichael") seeks summary judgment on plaintiff Ricardo Melara's race and national origin discrimination claims, harassment claim, retaliation claim and slander claim. Carmichael also seeks summary judgment on Melara's claims for front pay and punitive and compensatory damages. At this time, I will consider the race and national origin claim, the harassment claim and the slander claim. Since the parties have indicated that they will brief the Ellerth issue further, and since this may have some bearing on my disposition of the harassment claim, I will defer consideration of that claim until that issue is fully briefed. Additionally, I will defer consideration of Melara's damages claims until I reach a decision on the harassment claim.
Race and National Origin Claim and Retaliation Claim
To establish a prima facie case of race or national origin discrimination, Melara must show that (1) he belongs to a protected class, (2) he performed his job satisfactorily, (3) he suffered an adverse employment action and (4) his employer treated similarily situated employees outside of his classification more favorably. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Cautreras v. Suncast Corp., 237 F.3d 756 (7th Cir. 2001). To establish a prima facie case of retaliation, Melara must show that (1) he engaged in a protected activity, (2) he suffered an adverse employment decision and (3) there was a causal link between the adverse employment decisions and the protected activity. Sweeney v. West, 149 F.3d 550 (7th Cir. 1998).
Where Melara's race and national origin claim fails is in demonstrating that Melara suffered an adverse employment action. Reviewing the evidence presented and drawing all inferences in favor of Melara as the non-movant, the conduct endured by Melara is not severe enough to rise to the level of an adverse employment action. Melara was employed by Carmichael as a journeyman mechanic. The essence of Melara's claim is that he was assigned "grunt work," that is, the more difficult and "dirty" jobs that were to be done by Carmichael's mechanics. He was also asked to drive a truck for which he was not properly licensed and denied certain opportunities to receive advanced or specialized training.
Although the Seventh Circuit has broadly defined an adverse employment action, not everything that makes an employee unhappy rises to the level of an actionable adverse action. Stutler v. Illinois Dept. of Corrections, 263 F.3d 698, 703 (7th Cir. 2001) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). See also Aponte v. University of Illinois, 1997 WL 790729 (N.D. Ill. 1997). With respect to the jobs that Melara was made to perform, it is particularly relevant that all of these jobs (including the driving of the truck) were within Melara's job classification and expertise and at his skill level, precisely the types of work done by other mechanics. See Haugerud v. Amery School Dist., 259 F.3d 678 (7th Cir. 2001); Conley v. Village of Bedford Park, 215 F.3d 703 (7th Cir. 2000). Further, Melara's failure to have a license to drive the truck was not his employer's fault; in fact, by not having such a license, Melara was violating a term of his employment. With respect to the training opportunities, the facts show that Melara was provided some opportunities but not all that were available. Without an accompanying reduction in pay, hours or job title, such denial of training does not constitute an adverse employment action. See Johnson-Carter v. B.D.O. Seidman, 169 F. Supp.2d 924 (N.D. Ill. 2001).
With respect to Melara's retaliation claim, he offers the same facts discussed above and, in addition, Melara claims that he was subject to two disciplinary write-tips after he complained of race and national origin discrimination. As with the denial of training opportunities, without an accompanying reduction in pay, hours or job title, disciplinary write-ups do not constitute art adverse employment action. See Kersting v. Wal-Mart Stores, 250 F.3d 1109 (7th Cir. 2001).
Finally, with respect to both the race and national origin claim and the retaliation claim, Melara charges that a pervasive harassing atmosphere, coupled with the actions discussed above, constitutes an adverse employment action. While I can conceive of situations where an employer could create an atmosphere that would be so unpleasant for the employee that such an atmosphere could properly be considered an adverse employment action either alone or in combination with other factors, the facts in this case simply do not support it.
Slander Claim
Melara next argues that being called "stupid Mexican" or "Mexican donkey" or being told to "Come on. Hurry up." directly implicates Melara's performance at work and falls under the category of libel per se (although I assume in this context that he means slander per se). Melara cites for this proposition Colson v. Steig. 86 Ill. App.3d 993 (2d Dist. 1980). In Colson, however, the incident in question concerned specific and detailed comments about work performance. Here, the line of cases that is more on point, and that I find persuasive. are those that establish that racist or ethnically insensitive comments — which the comments at issue no doubt are — do not rise to the level of slander per se. See Fleming v. Kane County, 636 F. Supp. 742 (N.D. Ill. 1986); Irving v. J.L. Marsh Inc., 46 Ill. App.3d 162 (3d Dist. 1977).
Defendant's motion for summary judgment is GRANTED with respect to the race and national origin claims, the retaliation claim and the slander claim are CONTINUED with respect to the harassment claim and the damages claims.